Classification checks and safeguards

7.71 Allowing industry to classify its own content raises genuine concerns in relation to the balance between content providers’ self-interest and community standards. Some submissions argued against further industry involvement in classification because under existing co-regulatory or self-regulatory arrangements inadequate enforcement of breaches and penalties is insufficient to act as a deterrent to media content providers oriented towards maximising profits.^[44] For example ACCM stated:

There is too much risk of a conflict of interest if industry classifies content. Such a system is currently in place for television, as the ACMA acts as a co regulator with TV stations. The system does not work because industry is under too much pressure to downgrade content to fit time zones. We can point to a number of instances where the industry was found to have broadcast inappropriately classified material.^[45]

7.72 The ALRC considers moving to significantly greater classification of content by industry requires meaningful government oversight to incorporate appropriate checks and balances to address such concerns—including complaint handling and review mechanisms that apply across all classification decision makers.

7.73 Industry classification will largely be managed under codes of practice administered by the Regulator—these elements of the proposed model are discussed in Chapters 11 and 12 respectively.

7.74 The proposed checks and safeguards for industry classification build upon the strengths of existing arrangements in relation to the current authorised assessor schemes and use of the Board’s expertise in developing classification training and considering classification recommendations made by industry assessors. There are also elements that draw upon checks and safeguards incorporated under existing broadcasting codes of practice.

Authorisation of industry classifiers and instruments

7.75 Public confidence in the classification process and classification decisions is founded on decision makers consistently applying specified classification criteria, adhering to agreed standards, and employing sound decision-making practices.

7.76 To ensure that all industry classifiers are classifying content consistently and properly applying the statutory classification criteria, industry classifiers should only be authorised to classify content if they have completed training approved by the Director of the Board.

7.77 Industry codes of practice should refer to obligations on classifiers relevant to the proper performance of classification duties including:

• requirements for renewal of industry classification authorisations;
• requirements for minimal periods of supervision following training; and
• requirements concerning frequency of refresher training.

7.78 The Regulator should also authorise industry-developed classification instruments as being suitable for use in making classification decisions for content available in Australia. The Regulator should only authorise instruments that incorporate the statutory classification criteria and classification categories—as minimum requirements that must be used by all other classification decision makers. The Regulator may determine that instruments need to integrate other elements of the classification process, such as providing for automatic lodgement of the classification decision with the Regulator.

Who provides classification training

7.79 The Department currently develops all classification course material (with input from the Board) and delivers classification training for industry clients that wish to participate in the authorised assessor schemes and organisations, such as television companies, that employ industry classifiers. These training arrangements would serve as a useful model for the Regulator’s training of industry classifiers.

7.80 The proposed expansion of industry classification will result in a considerable increase in demand for training. While the Regulator might continue to deliver classification training, particularly for the Board, additional demand may be best met by introducing a program to accredit external training providers.

7.81 A corollary of greater direct engagement of industry in classification decisions, overseen by a government regulator, is the need for a more formalised training framework for classifiers. Consistent and rigorous training that meets accredited training standards is essential in a co-regulatory environment, in order to secure a high level of public trust in the quality of all classification decisions.

7.82 The classification training currently provided by the Classification Branch of the Attorney-General’s Department is not formally accredited and there is no award attached to such training that would allow for it to be a transferable qualification across media industries.

7.83 There have also been questions raised about inconsistent training requirements for industry assessors as compared with classifiers. Free TV Australia submitted:

We note that the Classification Board conducts an intensive three-month program which includes mentorship and practical experience. In comparison, the training programs for certified industry assessors are very brief (half-day or one-day). Anecdotal evidence suggests that this contributes to inconsistencies in classification decision-making, undermining the effectiveness and integrity of the National Classification Scheme. The ALRC should consider recommending changes to the accreditation process to include consistent and rigorous training requirements, with classifiers required to undergo minimum periods of supervision following training.^[46]

7.84 As industry classification expands, it is conceivable that private providers may wish to become involved in accredited training programs, or that universities or the vocational education and training sector may wish to offer approved short courses in media classification. In developing a consistent accredited training framework for media classifiers that is recognised across industries, a threshold question is whether such a qualification would be recognised within the Australian Qualifications Framework (AQF). If training is to be formally accredited through the AQF, this requires a formal statement of the context for, and application of, knowledge and skills. This could allow for different levels of qualification: for example, a lower-level qualification may be awarded to those making routine classification decisions, and a higher-level award for trainers or managers responsible for auditing the quality of training processes.

Reviews of classification decisions

7.85 The ALRC considers that classification decisions for all media content that must be classified should be reviewable, including television program content. This would involve a ‘strengthening’ of the current regulatory arrangements. Reviews of television content are arguably more feasible and more relevant in a converged environment where broadcasters are increasingly hosting content online which extends audience reach and makes content available beyond a single screening—not unlike films, computer games and other classified content that may be subject to review.

Who conducts reviews

7.86 The Classification Act currently provides for reviews of classification decisions. The Review Board makes a fresh merits decision after considering the material and hearing submissions by the applicant and other parties with an interest in the decision. This is generally in response to an application for review from the original applicant or the publisher of the media content.

7.87 A common criticism of the current review arrangements is that the cost of reviews is too high.^[47] Operations of the Review Board are expensive, as Review Board members travel to Sydney from across Australia to attend Review Board hearings and high-level secretariat support is provided by the Department for all Review Board activities. As Review Board members are part-time and not located in Sydney, organising reviews can also be logistically and administratively time-consuming.

7.88 Some submissions also questioned the reliability of Review Board decisions given the limited number of reviews annually and hence members’ limited exposure to some types of content.^[48] Any lack of classification experience may have implications for reviewing decisions of industry classifiers who are more regularly engaged in the classification of more media content. ^[49]

7.89 The ALRC recognises the value of a review mechanism and therefore proposes that the new classification system continue to provide for classification decisions to be appealed, but that the function should reside with the Board itself. This means that the Review Board would cease to exist. This proposal is intended to streamline the review process, simplify administrative arrangements and create other efficiencies that potentially generate cost savings.

7.90 The Board would only be reviewing its ‘own’ decisions in relation to the content that must always be classified by the Board. In all other cases the Board would be reviewing an industry classifier’s classification decision.

7.91 There may be some concern about the Board’s objectivity in relation to reviewing its own decisions and its lack of independence from the primary decision maker. A risk that may also arise in giving the Board the power to review its own decisions is that doing so may increase the chance of applicants or stakeholders reasonably apprehending a bias in decision making and seeking judicial review.

7.92 If a statute requires an organisation to take multiple roles (such as primary and reviewing decision maker), this will exclude the application of the bias rule to the extent that bias is perceived merely because of these multiple roles.^[50] However, the bias rule will not necessarily be excluded if bias is apprehended for other reasons. For example, if the statute does not specify which members of the Board may sit on reviews, and a Board member involved in a primary decision sits on the panel reviewing that decision, this may give rise to an apprehension of bias.

7.93 The new Classification of Media Content Act should provide statutory requirements for the composition of review panels, including making explicit whether primary decision makers are to be allowed to sit on reviews. In addition, in order to allow for review panels to be constituted as larger or completely different panels there should be legislative provisions prescribing the maximum size of panels for original classification decisions.

Who may apply for a review

7.94 The Classification Act provides that an application for review of a classification decision generally must be made within 30 days after the applicant received notice of the decision.^[51] The Australian Government Minister responsible for the Classification Act may seek a review at any time. The Act also sets limits on the persons that may seek a review as follows:

• applicants for the classification of content and publishers of the content that was classified;
• the Minister responsible for the Classification Act (either on his own initiative or if requested to do so by a State or Territory Minister responsible for censorship); and
• a ‘person aggrieved’ by the decision, as defined in the Classification Act.^[52]

7.95 To provide industry with a level of certainty regarding classification decisions without undermining access to a review mechanism, these limits should be retained. In addition, the ALRC considers that the Regulator should be provided with powers to submit an application for review in response to serious complaints, or as a result of audit activity undertaken by the Board.

7.96 The current high review fee may operate to deter potentially vexatious or speculative applications that may compromise the review process or result in delays that adversely affect the original applicant. In order to afford industry greater certainty—noting that increased industry classification may provide the impetus for more spurious applications for review—there may be merit in considering a narrowing of the definition of ‘person aggrieved’ by the decision. This would need to have regard to principles of natural justice and procedural fairness in relation to people who may be affected by the decision.

Audits of industry classification decisions

7.97 As part of the process of monitoring the accuracy of industry classification decisions, the Board should undertake routine post-classification audits of media content that must be classified. Audits should be the responsibility of the Board, rather than the new Regulator, because the Board is the independent benchmark decision maker and the audit process incorporates classification decision-making activity.

7.98 To ensure that industry classification is properly monitored and to better understand whether any problems might be industry or media content specific, audit activity should be conducted in relation to the types of media content, specific industry sectors and across industry classifiers that regularly classify content. There was support, even among submissions that supported industry classification, for industry to be subject to regular government checks.^[53]

7.99 Audits are not necessarily directed to correcting decisions but rather would be designed to proactively manage industry classifiers, so that erroneous decisions and poor classification decision making can be prevented or minimised. Audits by the Board would provide a basis for the Regulator to monitor industry classifiers more closely where there is evidence of repeated and continuing problems. The Regulator would have options to impose sanctions to address serious and repeated misconduct, as discussed below.

Complaints processes

7.100 Similar to current arrangements concerning complaints about television program content, complaints would, in the first instance, be made directly to the organisation that made the classification decision. A complainant may lodge a complaint with the Regulator where that complainant considers the complaint has not been satisfactorily resolved. The Regulator would then have powers to investigate complaints and, where necessary and appropriate, refer the content to the Board for a review of the classification decision.^[54]

7.101 Codes of practice should include guidance on establishing complaint-handling mechanisms in relation to content that must be classified. Guidance should cover awareness and accessibility of the complaints mechanism, response time frames, recording and reporting, processes for escalating serious complaints and revisiting classification decisions as a means to address complaints as appropriate.

Sanctions regime

7.102 The ALRC proposes that a regime of sanctions that might be applied against industry classifiers who repeatedly classify content wrongly should also be set out in legislation. This would be similar to the range of sanctions in the current Classification Act and related legislative instruments that apply under authorised assessor schemes.

7.103 These sanctions are another means of protecting consumers and ensuring that the integrity of the entire classification system is maintained. The sanctions are targeted at classifiers to ensure that if they are not classifying products properly and in accordance with the statutory classification criteria, they will not be able to continue to making classification decisions. The sanctions are intended to be applied if other informal actions, such as refresher training, have not remedied the situation.

7.104 In order to provide industry classifiers with guidance on best practice and to assist them to avoid making incorrect decisions, industry codes of practice should include information on maintaining records of classification decisions and summaries, advising decisions to the Regulator and internal quality assurance controls.