Reform of the cooperative scheme

123. The NCS is an example of a Commonwealth-state cooperative scheme. Under such schemes, each participating jurisdiction promulgates legislation to facilitate the application of a standard set of legislative provisions in that jurisdiction to regulate a matter of common concern.^[86]

124. The Classification Act was enacted by the Parliament of Australia to provide for the classification of publications, films and computer games for the ACT, pursuant to Parliament’s power to make laws for the government of a territory (the territories power).^[87]

125. However, the Act specifically provides that it is intended to form part of a Commonwealth, state and territory scheme for classification and the enforcement of classifications and notes that ‘provisions dealing with the consequences of not having material classified and the enforcement of classification decisions are to be found in complementary laws of the States and Territories’.^[88]

Types of cooperative scheme

126. There are four main types of Commonwealth-state cooperative scheme: referral of power to the Commonwealth; mirror legislation; complementary law regimes; and a combined scheme.^[89] The NCS is an example of a complementary law regime.

Referral of power

127. Section 51(xxxvii) of the Australian Constitution gives the Parliament of Australia power to make laws with respect to matters referred to the Parliament by the Parliament of any state. The states have referred a number of matters to the Commonwealth, including corporations law and counter-terrorism.^[90]

Mirror legislation

128. Mirror legislation refers to a scheme where one jurisdiction enacts a law that is then enacted in similar terms by other jurisdictions.An example of mirror legislation is the uniform Evidence Acts.^[91]

Complementary law regimes

129. Complementary law regimes include complementary ‘applied law’ schemes and ‘non-applied law’ schemes. A complementary applied law scheme involves one jurisdiction enacting a law on a topic, which is then applied by other jurisdictions. A recent example is the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth). State and territory legislation has been enacted to apply the Australian Consumer Law as a law of each other jurisdiction.^[92] The NCS is characterised as a complementary ‘non-applied’ law scheme, discussed further below.

Combined schemes

130. Another model is a combined scheme, combining mirror legislation and applied law approaches. Under this model, some states enact their own mirror legislation and other states apply Commonwealth law as a law of the state. An example of this approach is the regulation of gene technology. The Gene Technology Act 2000 (Cth) extends to matters within the Commonwealth’s constitutional power, leaving the states and territories with the option of either applying the Commonwealth Act or enacting their own legislation. Both options have been adopted by different states.^[93]

The current cooperative scheme

131. The NCS is a complementary ‘non-applied’ law scheme. That is, the Commonwealth Classification Act is not enacted as a law of each other participating jurisdiction. Rather, the states and territories have enacted complementary legislation that provides for the enforcement of the classification system.

132. This arrangement may be seen as having disadvantages for what is intended to be a national scheme because of the substantial variations in state and territory (and Commonwealth) enforcement provisions. These variations include, for example:

• the ACT and Northern Territory do not prohibit the sale and exhibition of X 18+ films;^[94]

• Queensland prohibits the sale of Category 1 Restricted and Category 2 Restricted publications;^[95]

• in New South Wales, Category 1 Restricted publications may be sold in transparent sealed packages, while in Western Australia, they must be sold in plain, opaque wrappers;^[96]

• penalties also vary—selling an RC publication in Western Australia can be punished by a $15,000 fine or 18 months imprisonment, but in Victoria it is $28,668 (240 penalty units) or two years imprisonment; and

• the Classification Act itself prohibits the possession or control of Category 1 restricted and Category 2 restricted publications, X 18+ films, and RC material by persons in prescribed areas of the Northern Territory—offences that do not apply to persons in any other part of Australia.^[97]

133. More fundamentally, some states and territories retain powers to classify or re-classify material^[98]—although only the South Australian Classification Council actively does so.^[99]

134. While such inconsistencies might be seen as a weakness of the NCS, some jurisdictions may consider it an advantage to be able to craft jurisdiction-specific enforcement provisions or provide for the review of Commonwealth classifications.

135. Another possible problem with the NCS is that, under the IGA, the Classification Code and guidelines cannot be amended except with the agreement of Commonwealth, state and territory ministers, and following public consultation.^[100]

Reform of the NCS cooperative scheme

136. The ALRC is interested in comment on whether a new framework for the classification of media content in Australia should be based on the current cooperative scheme, or whether this should be replaced with some other form of scheme.

137. A threshold question concerns the extent to which the Australian Parliament might enact legislation establishing such a framework. There are several constitutional heads of legislative power that are relevant.

138. Under the communications power,^[101] the Australian Parliament may, and does, regulate online content and broadcasting (television and radio).^[102] The trade and commerce power^[103] grants the Commonwealth legislative power to regulate imported or exported media content including, for example, pornography,^[104] and interstate trade in such content. In combination with other heads of legislative power, such as the corporations powers,^[105] the Australian Parliament may be able to legislate more broadly in relation to classification of media content than is currently the case.

139. Other possible models would involve a referral of state powers to the Commonwealth under s 51(xxxvii) of the Australian Constitution. A state referral of powers may be stated to cover all matters relating to the operation of new Commonwealth classification legislation to the extent that the matter is not otherwise included in the legislative powers of the Parliament of the Australia.^[106] A referral of power by the states would ensure that Commonwealth classification legislation was comprehensive in its coverage and less vulnerable to constitutional challenge.

140. A further option is a complementary applied law scheme, where Commonwealth legislation, as in force from time to time, would be applied by the other jurisdictions. Provided that there were effective limits on modification of the legislation—for example, through a new intergovernmental agreement on classification—this would provide a substantial degree of uniformity.