The need for fundamental reform

2.50 In the Issues Paper, the ALRC asked whether, in this Inquiry, the focus should be on developing a new framework for classification, or on improving key elements of the existing framework.[40]

2.51 The ALRC’s purpose in asking this question was to seek community input on the question of whether incremental ‘fine tuning’ of the National Classification Scheme was appropriate, or whether more root-and-branch reform of the framework was required.

2.52 The Senate Legal and Constitutional Affairs References Committee, in its report Review of the National Classification Scheme: Achieving the Right Balance, argued that fundamental reform of the national classification scheme was required:

The National Classification Scheme is flawed, and cannot be sustained in its current form. This is primarily because the scheme has not been successful in achieving a uniform and consistent approach to classification in Australia. Further, the current situation where the National Classification Scheme is loosely paralleled by co-regulatory and self-regulatory systems is far from adequate, particularly given the increasing convergence of media.[41]

2.53 Many stakeholders identified the National Classification Scheme as requiring fundamental reform to address the challenges of a convergent media environment. Industry submissions in particular were almost universal in condemning the National Classification Scheme as ‘an analogue piece of legislation in a digital world’,[42] that has failed to respond to the challenges of media convergence.

2.54 Telstra argued that there was a need for the ALRC to undertake a holistic examination of the National Classification Scheme with the objective of developing a new classification framework for the new media environment:

Despite its worthy underlying intent, successive Governments have responded to challenges to the system posed by rapid technological change with a series of issue specific regulatory responses. After more than a decade of incremental changes, the National Classification Scheme as it stands today is a complex arrangement of parallel and sometimes overlapping systems of classification … In this context, rather than seeking to address the issues with the classification scheme that have emerged as a result of rapid technological change with further ad hoc reforms … the ALRC should undertake a holistic examination of the National Classification Scheme with the objective of developing a new classification framework for the modern media environment.[43]

2.55 The Australian Home Entertainment Distributors Association argued that it:

supports the intent of the Scheme as it currently stands but also strongly supports reform to recognise the realities of digital distribution, simultaneous release of content across platforms, the explosion in volume of content (including user generated) and the current fractured jurisdictional nature of the Scheme. [44]

2.56 The Special Broadcasting Service questioned the continued relevance of an National Classification Scheme that applies different rules for different media platforms:

The current classification scheme adopts an ‘old media’ view that applies stricter controls to delivery platforms that previously had greater influence than others and that assumes that consumers have limited control over what they, or their children, watch. These underlying assumptions are, increasingly, less valid and distinctions between distribution platforms will ultimately become meaningless … There is a need for a framework that applies across platforms in a consistent and equitable manner, and which takes into account the growing availability of tools which enable consumers to control access to content.[45]

2.57 Google observed that there has been a shift from ‘vertical media silos’ and stand-alone media platforms, to what they termed a ‘horizontal model of networks, platforms and content’:

The media environment has changed dramatically in the twenty years since the ALRC last considered censorship and classification. The existing classification regime was developed in an age where the media landscape was characterised by technologically distinct vertical media silos: radio, television, Internet etc. These media publishers created the content to be consumed by a passive audience.

Today’s media landscape is very different. The ‘audience’ of passive recipients of content has been replaced by citizen creators and citizen journalists engaging interactively with media platforms/services such as YouTube, Facebook, Yahoo!7 and ninemsn, to create and distribute content. Vertical media silos have been replaced by a horizontal, converged landscape of platforms, content providers and users, facilitated by communications networks … In this changed environment, how we determine the appropriate policy approach to regulation of content needs to be fundamentally reconsidered.[46]

[40] Australian Law Reform Commission, National Classification Scheme Review, ALRC Issues Paper 40 (2011), Question 1.

[41] Senate Legal and Constitutional Affairs References Committee, Review of the National Classification Scheme: Achieving the Right Balance (2011), 23.

[42] Australian Publishers Association, Submission CI 1226, 16 July 2011.

[43] Telstra, Submission CI 1184, 15 July 2011.

[44] Australian Home Entertainment Distribution Association, Submission CI 1152, 15 July 2011.

[45] SBS, Submission CI 1833, 22 July 2011.

[46] Google, Submission CI 2336, 22 July 2011.