The legislative framework

The Classification Act framework

10.8 There are three parts of the framework for classification under the Classification (Publications, Films and Computer Games) Act 1995 (Cth) (Classification Act): the Act itself; the National Classification Code (the Code); and the guidelines—that is, the Guidelines for the Classification of Publications and the Guidelines for the Classification of Films and Computer Games.

Classification Act

10.9 Section 9A(1) provides that publications, films or computer games that advocate the doing of a terrorist act must be classified RC. However, s 9 provides that in all other cases, publications, films and computer games are to be classified in accordance with the Code and the classification guidelines.

National Classification Code

10.10 As discussed in Chapter 9, cl 1 of the Code outlines a number of classification principles. It then provides that publications, films and computer games are to be classified according to the tables set out in cls 2, 3 and 4 respectively. These tables are prescriptive.[7] Item 1 within each table describes content that is to be classified RC. For the most part, the description of RC content is identical for publications, films and computer games.[8] That is, the Code requires that the RC classification applies to publications, films or computer games that:

  • depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena, in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be accorded a classification other than RC—item 1(a); or

  • describe or depict in a way that is likely to cause offence to a reasonable adult, a person who is, or appears to be, a child under 18 (whether the person is engaged in sexual activity or not)—item 1(b); or

  • promote, incite or instruct in matters of crime or violence—item 1(c).[9]

10.11 The main difference between the current three media types to be classified RC is that the Code provides that computer games that are unsuitable for a minor to see or play are to be classified RC.[10] The reason for this is the absence of an R 18+ classification for computer games. However, law ministers from all jurisdictions who together constitute the Standing Committee of Attorneys-General (SCAG) agreed in July and August 2011 to the creation of the R 18+ classification category for computer games.[11] At the time of writing, the Australian Government had not yet introduced a Bill to amend s 7(3) of the Classification Act—the relevant legislative provision that designates the classification categories for the three media types.

Classification guidelines

10.12 With respect to the RC classification, the Guidelines for the Classification of Publications provide that:

Publications which contain elements which exceed those set out in the above classification categories are classified ‘RC’.

...

Publications that appear to purposefully debase or abuse for the enjoyment of readers/viewers, and which lack moral, artistic or other values to the extent that they offend against generally accepted standards of morality, decency and propriety will be classified ‘RC’.

Publications will be classified ‘RC’:

(a) if they promote or provide instruction in paedophile activity;

or if they contain:

(b) descriptions or depictions of child sexual abuse or any other exploitative or offensive descriptions or depictions involving a person who is, or appears to be, a child under 18;

(c) detailed instruction in:

(i) matters of crime or violence,

(ii) the use of proscribed drugs;

(d) realistic depictions of bestiality;

or if they contain gratuitous, exploitative or offensive descriptions or depictions of:

(e) violence with a very high degree of impact which are excessively frequent, emphasised or detailed;

(f) cruelty or real violence which are very detailed or which have a high impact;

(g) sexual violence;

(h) sexualised nudity involving minors;

(i) sexual activity involving minors;

or of they contain exploitative descriptions of:

(j) violence in a sexual context;

(k) sexual activity accompanied by fetishes or practices which are revolting or abhorrent;

(l) incest fantasies or other fantasies which are offensive or revolting or abhorrent.[12]

10.13 The Guidelines for the Classification of Films and Computer Games relevantly provide that:

Films that exceed the R 18+ and X 18+ classification categories will be [RC]. Computer games that exceed the MA 15+ classification category will be [RC].

Films and computer games will be refused classification if they include or contain any of the following:

CRIME OR VIOLENCE

Detailed instruction or promotion in matters of crime or violence.

The promotion or provision of instruction in paedophile activity.

Descriptions or depictions of child sexual abuse or any other exploitative or offensive descriptions or depictions involving a person who is, or appears to be, a child under 18 years.

Gratuitous, exploitative or offensive depictions of:

(i) violence with a very high degree of impact or which are excessively frequent, prolonged or detailed;

(ii) cruelty or real violence which are very detailed or which have a high impact;

(iii) sexual violence.

SEX

Depictions of practices such as bestiality.

Gratuitous, exploitative or offensive depictions of:

(i) sexual activity accompanied by fetishes or practices which are offensive or abhorrent;

(ii) incest fantasies or other fantasies which are offensive and abhorrent.

DRUG USE

Detailed instruction in the use of proscribed drugs.

Material promoting or encouraging proscribed drug use.[13]

The Customs Regulations framework

10.14 The Customs (Prohibited Imports) Regulations 1956 (Cth) (the import regulations) and the Customs (Prohibited Exports) Regulations 1958 (Cth) (the export regulations) provide, respectively, that the importation and exportation of ‘objectionable goods’[14] are prohibited unless the Attorney-General for Australia or an authorised person has given written permission.[15] This means that the importation or exportation of these goods is controlled—in that specific conditions must be complied with—in contrast to being absolutely prohibited.[16] The Australian Customs and Border Protection Service (Customs) is empowered to identify and confiscate such objectionable goods at Australia’s borders. Further, with respect to the importation of objectionable material, there is a tiered penalty regime.[17]

10.15 ‘Objectionable goods’ are largely tangible items related to the ‘offline’ world: publications, films, computer games, computer generated images, and interactive games.[18] Neither the import regulations nor the export regulations specifically use the term ‘RC’ or otherwise refer to the classification in the provisions relating to ‘objectionable goods’. As Customs has explained, the import regulations are a dedicated border control, so reg 4A ‘operates under its own power and does not reference classification legislation’.[19] However, the Australian Government’s intention was to align the scope of ‘objectionable goods’ with the RC category used for classification.[20]

10.16 Customs has advised that

[i]f any recommendation is considered to alter the guidelines to what is deemed to be Refused Classification material, equivalent amendments are required to the [import regulations] to ensure that the controls at the border are consistent with the domestic controls.[21]

10.17 This demonstrates that, while classification and consequence are conceptually distinct, at the higher end of classification there is a clear nexus between them.

The Broadcasting Services Act framework

10.18 Aspects of the Broadcasting Services Act framework that are relevant to this Inquiry are outlined in Chapter 2. The co-regulatory scheme for online content in schs 5 and 7, ‘aims to address community concerns about offensive and illegal material online and, in particular, to protect children from exposure to material that is unsuitable for them’.[22] For the purpose of this chapter, it is important to note that the terms ‘prohibited content’ and ‘potential prohibited content’ refer to wider categories of media content than RC—although content that has been classified RC or would be substantially likely to be classified RC is certainly captured by the terms.[23]

[7]Adultshop.Com Ltd v Members of the Classification Review Board (2008) 169 FCR 31, [43].

[8] Note that the table relating to publications also includes descriptions. See National Classification Code 2005 (Cth) cl 2, item 1(a).

[9] Ibid cl 2, item 1; cl 3, item 1; cl 4, item 1.

[10] Ibid cl 4(1)(d).

[11] See Standing Committee of Attorneys-General, Communique 21 & 22 July 2011; B O’Connor (Minister for Home Affairs and Justice), ‘NSW Agrees to R 18+ Classification for Computer Games’ (Press Release, 10 August 2011)..

[12] A large number of these terms are defined in the relevant glossary.

[13] Again, some terms are defined in the relevant glossary. The relevant ‘List of Terms’ explains that undefined terms are to take their usual dictionary meaning.

[14] This term is used in the headings of both regulations. See Customs (Prohibited Imports) Regulations 1956 (Cth) reg 4A; Customs (Prohibited Exports) Regulations 1958 (Cth) reg 3.

[15]Customs (Prohibited Imports) Regulations 1956 (Cth) reg 4A(2A); Customs (Prohibited Exports) Regulations 1958 (Cth) reg 3(4). Note that the export regulations specifically provide that the Attorney-General may appoint the Director or Deputy Director of the Classification Board to be such an authorised person: Customs (Prohibited Exports) Regulations 1958 (Cth) reg 3(3).

[16] See Customs Act 1901 (Cth) s 50(2) (imported goods); s 112(2) (exported goods).

[17] See Australian Customs and Border Protection Service, Submission to Senate Legal and Constitutional Affairs References Committee Inquiry into the Australian Film and Literature Classification Scheme, 25 February 2011.

[18] Each of these terms is defined. See Customs (Prohibited Imports) Regulations 1956 (Cth) reg 4A(1); Customs (Prohibited Exports) Regulations 1958 (Cth) reg 3(1).

[19] Australian Customs and Border Protection Service, Submission to Senate Legal and Constitutional Affairs References Committee Inquiry into the Australian Film and Literature Classification Scheme, 25 February 2011. For an explanation of the history of reg 4A see D Hume and G Williams, ‘Australian Censorship Policy and the Advocacy of Terrorism’ (2009) 31 Sydney Law Review 381, 388.

[20] See Explanatory Statement, Customs (Prohibited Imports) Regulations (Amendment) 1995 (Cth) 1; Explanatory Statement, Customs (Prohibited Exports) Regulations (Amendment) 1997 (Cth) 1; Explanatory Statement, Customs (Prohibited Exports) Amendment Regulations 2007 (No 4) (Cth) 1; Explanatory Statement, Customs (Prohibited Imports) Amendment Regulations 2007 (No 5) (Cth) 1.

[21] Australian Customs and Border Protection Service, Submission to Senate Legal and Constitutional Affairs References Committee Inquiry into the Australian Film and Literature Classification Scheme, 25 February 2011.

[22] Australian Communications and Media Authority, Online Regulation <http://www.acma.gov.au/
scripts/nc.dll?WEB/STANDARD/1001/pc=PC_90169> at 11 September 2011.

[23] See Broadcasting Services Act 1992 (Cth);Classification (Publications, Films and Computer Games) Act 1995 (Cth) sch 7 cls 20, 21.