The new Classification of Media Content Act

5.30 The ALRC proposes that a new National Classification Scheme should be established through the enactment of a new Classification of Media Content Act.

5.31 The ALRC proposes that the Act should provide, among other things, for:

• what types of media content may, or must be classified;
• who should classify different types of media content;
• a single set of statutory classification categories and criteria applicable to all media content;
• access restrictions on adult content;
• the development and operation of industry classification codes consistent with the statutory classification criteria; and
• the enforcement of the National Classification Scheme, including through criminal, civil and administrative penalties for breach of classification laws.

5.32 Each of these matters is discussed in more detail in following chapters.^[7] However, the new Act would be likely to draw on concepts already contained in the Classification Act (or complementary state and territory enforcement legislation) and the Broadcasting Services Act. For example, the new Act would:

• establish a Classification Board, with similar functions to those currently performed by the existing Classification Board (see Chapter 7);
• prescribe a single set of classification categories similar to those currently prescribed by the Classification Act for films (see Chapter 9);
• establish a mechanism for industry codes similar to those currently provided for under the Broadcasting Services Act (see Chapter 11);
• provide for a new Regulator that would exercise a combination of powers currently exercised by the Director of the Classification Board and the ACMA (see Chapter 12);^[8] and
• provide for a regime of offences and penalties based on those currently existing in the Classification Act (and complementary state and territory enforcement legislation) and the Broadcasting Services Act (see Chapter 14).

5.33 While adapting some existing concepts, the new model should also constitute a significant modification and consolidation of existing regulation. In this context, the ALRC recognises that the arguments made by the ACMA that the process of convergence can be said to have ‘broken, or significantly strained, the legislative concepts that form the building blocks of current communications and media regulatory arrangements’.^[9] Some aspects of the new Act will have to be drafted more or less ‘from scratch’, including, for example, provisions dealing with the framework for the training and accreditation of industry classifiers.

Media content

5.34 The ALRC proposes that, under the new scheme, some media content must be classified and access to other media content restricted to adults.^[10] Those with the primary responsibility to comply with these laws are referred to as ‘content providers’. The proposed Classification of Media Content Act will, therefore, require definitions of ‘media content’ and ‘media content provider’. These definitions should be both broad and platform-neutral, and should include content:

• published online;
• published on media such as books, magazines, and DVDs; and
• broadcast on free-to-air and subscription television.

5.35 Schedule 7 of the Broadcasting Services Act contains definitions of ‘content’ and ‘content service’, which might form one useful starting point,^[11] expanded to apply to books, magazines, films and DVDs.^[12]

Alternative approaches to implementation

5.36 The proposals set out in this Discussion Paper are framed on the basis that a new Classification of Media Content Act will be enacted. However, in many instances, the provisions that form the basis of a new National Classification Scheme could equally form part of broader content regulation under a revised Broadcasting Services Act or successor legislation. Alternatively, the policies behind the ALRC’s proposals may be able to be implemented under the existing classification cooperative scheme, or as amendments to the existing Broadcasting Services Act.

5.37 The ALRC’s proposal that the Classification Board should classify online and offline computer games likely to be classified MA 15+ or higher^[13] could be implemented by amendments to the Classification Act, with the agreement of the states and territories. Similarly, the ALRC’s proposal for a range of offences and criminal and civil penalties relating to contraventions of the Act or codes of practice^[14] might also be implemented by amendments to the existing Classification Act, together with mirror amendment of state and territory enforcement legislation.

5.38 It is the ALRC’s strongly held view, however, that such amendments to the existing framework would be very much ‘second-best’ options for reform, and that the need has now arisen for a new National Classification Scheme based on new legislation.