Classification Discussion Paper now released

The Australian Law Reform Commission has now released a http://www.alrc.gov.au/publications/national-classification-scheme-review-dp-77 on the Review of the National Classification Scheme. Public submissions responding to the DP are now sought, with a deadline of Friday 18 October. Submissions can be made online.

The Discussion Paper makes 43 recommendations overall. I am presenting on Wednesday 5 October to the Law Council of Australia’s Media & Communications Division on these recommendations in Sydney. A summary of the main points of the presentation is provided below.

Presentation to Law Council of Australia, Media and Communications Committee, Level 2, 170 Philip St, Sydney, Wed 5 October

National Classification Scheme Review – Australian Law Reform Commission Discussion Paper (DP77) – released 30 September 2011

Background

• The current National Classification Scheme (NCS) is generally seen as broken, and that media convergence provides the right context for fundamental reform. This view is particularly strongly held by industry (Chs. 2 and 3, DP77).

• The need for a national classification scheme remains clear, and there is general recognition that such a scheme has underlying principles that balance the rights of individuals to consume the media of their choice with regulations that reflect community standards, protect children, and assist consumers – particularly parents – with media choices (Ch. 3 and 4, DP).

• The underlying principles of the NCS could be achieved in a more cost-effective manner than is the case at present, by reducing the fragmentation and the anomalies that currently exist, and moving towards a unified national system (Ch. 4, DP).

A new National Classification Scheme

• The ALRC has aimed to be bold in its proposals for reform. We are proposing a new framework that is sufficiently adaptive to remain relevant for the next 10-20 years.

• A new National Classification Scheme should be based on a new Classification of Media Content Act (Ch. 5, DP), combining the current Classification Act 1995 and elements of the Broadcasting Services Act 1992, particularly schedules 5 and 7. This is a necessary condition for harmonising regulations between film, publications, computer games, broadcast media and online media.

• The new NCS should focus on content regardless of media platform, and be platform-neutral to the greatest degree possible.

A new regulator

• A new National Classification Scheme should provide for the establishment of a single agency (‘the Regulator’) responsible for the regulation of media content across media platforms. It would combine powers currently held by the ACMA, the Classification Branch of the AGD, and the Classification Board (Chs. 5 and 12, DP).

• The Classification Board would remain largely as is, but be responsible to the new Regulator (Ch. 7, DP). It is proposed that the Classification Review Board be disbanded, and that appeals instead be handled by a full panel of the Classification Board.

• The auditing role of the new Regulator would be critical, and the Regulator would be empowered to revoke authorisation of industry classifiers, and enforce compliance with industry codes against any participant in a relevant part of the media content industry, among other powers (Ch. 11, DP)

Industry co-regulation

• There would be a greater role for trained industry assessors in the classification of content, under industry classification codes of practice approved and audited by the Regulator (Ch. 11, DP).

• The ALRC is advocating co-regulation, not self regulation. The operation of broadcast television codes of practice since 1993 provides a model for how this might work in practice for industries such as computer games and home entertainment (DVDs) (Ch. 11, DP).

• Greater co-regulation would generate cost savings to industry, allow producers to be more directly responsive to consumers and the community, and simplify the process of regulatory change in response to technological and market changes.

• It is estimated that the changes proposed could reduce Classification Board time spent on computer games by 80%+, and on DVDs by 95%. Freeing up Classification Board time and resources in this way would allow it to be more directly focused on the content that generates the most community concern.

Content classification

• The ALRC proposes that the content that must be classified by the Classification Board includes:
o All feature-length films for cinema release
o Computer games likely to be classified MA15+ or higher
o Content that may be RC
o Content that needs to be classified for the purpose of enforcing classification laws
o Content submitted for classification by the Minister, the Regulator or another government agency (Chs. 6 and 7, DP)

• Other films and television programs—ie most of the content that must be classified—may be classified by authorised industry classifiers (Chs. 6 and 7, DP).

• A greater role for industry in content classification requires a robust training and accreditation framework for all approved industry classifiers, in order to ensure public trust in the scheme. The ALRC will work with relevant government agencies, including the Classification Board and the Australian Qualifications Council, on the development of this framework (Ch. 7, DP).

Classification Categories

• The ALRC proposes a new set of age-based classification categories to apply across all classified media content (in Ch. 9, DP):
o C (Children)
o G (General)
o PG8+ (Parental Guidance – suitable for children 8 and over)
o T13+ (Teen – suitable for children 13 and over)
o MA (Mature Audience)
o R18+ (Restricted)
o X18+ (Restricted)
o RC (Refused Classification)

• The new categories respond to the need for clear information for parents as to the suitability of media content for children, and remove confusion about the relationship between the current PG, M and MA15+ categories. The T13+ category is also in line with similar categories internationally.

• The new PG8+ category would retain the guidelines and carry the markings of the current PG category, and T13+ would have the guidelines and carry the markings of the current M category.

• The MA15+ category would become an advisory category only, and its name changed from “Mature Accompanied” to “Mature Audience’. The ALRC notes that restricting access to MA15+ content is unenforceable online as it is not recognised outside of Australia, and there is no age-based proxy akin to a drivers’ licence or credit card as applied to 18+.

• The separate Publications guidelines will be eliminated, and all content current classified ‘Restricted 1’and ‘Restricted 2’ will be classified X18+

• Separate categories such as AV and MAV for television would be replaced by the common set of statutory classification criteria.

Higher-level categories (R18+ and above)

• Access to all media content that has been, or is likely to be, classified R 18+ or X 18+ must be restricted to adults. Online, this would mean using a restricted access system. (Ch. 8, DP)

• X18+: the problem is the growing amount of unclassified material. The ALRC will raise the question of whether there is a role for trained industry assessors in dealing with this content. NB: this should not be read as the ALRC taking a view on X18+ material as such. It relates to effectiveness of classification enforcement only: a classification decision is not about the legality of sale or distribution.

• RC: the ALRC proposes that any material classified RC on the basis of child sexual abuse or acts of sexual violence should be added to any current content blacklist. The ALRC is conducting a pilot study with consultants Urbis Keys Young, as part of a working group also involving the Classification Branch of the AGD and the DBCDE to test community standards in relation to higher level content, including RC material. Results will be made available by end Nov.

Enacting the New National Classification Scheme

• The ALRC proposes that the new Classification of Media Content Act should provide for enforcement of classification laws under Commonwealth law (Ch. 13, DP).

• This may involve state referrals of power under s 51 (xxxviii) of the Constitution of any area of power not already covered under s 51.

• In the absence of such a referral of powers, a new Intergovernmental Agreement should be entered into whereby states and territories pass complementary legislation.

Enforcing the new National Classification Scheme

• Offences under the new Classification of Media Content Act should be subject to criminal, civil and administrative penalties similar to those currently in place under Schedule 7 of the Broadcasting Services Act 1992 (Ch. 14, DP).

• Consideration should be given to the use of infringement notices in relation to more minor breaches of classification laws.

Other issues

• Should the Convergence Review recommend a new super-regulator, functions envisaged by the ALRC as being under a single agency could be within the remit of that new regulatory agency.

• Changes could occur through amendments to existing legislation but this would be a “second best” option – it would not address questions of platform neutrality or the fragmentation of powers and decision-making authority in current scheme.

• These are proposals only and the ALRC invites comment from the public and from interested stakeholders.

• The purpose of an ALRC Discussion paper is to stimulate further debate and encourage submissions.

• The Discussion Paper was made publicly available on Friday 30 September. The online submission form will become active in the following week. The deadline for submissions will be Friday 18 November.