National Classification Scheme Review DISCUSSION PAPER You are invited to provide a submission or comment on this Discussion Paper. Discussion Paper 77 September 2011 This Discussion Paper reflects the law as at 30 September 2011. © Commonwealth of Australia 2011 This work is copyright. You may download, display, print and reproduce this material in whole or part, subject to acknowledgement of the source, for your personal, non- commercial use or use within your organisation. Apart from any use as permitted under the Copyright Act 1968 (Cth), all other rights are reserved. Requests for further authorisation should be directed to the Australia Law Reform Commission. Commission Reference: DP 77 ISBN: 978-0-9871777-0-4 The Australian Law Reform Commission was established on 1 January 1975 by the Law Reform Commission Act 1973 (Cth) and reconstituted by the Australian Law Reform Commission Act 1996 (Cth). 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Contents Terms of Reference 5 Participants 7 Proposals and Questions 9 Part 1 Introduction 17 1. Introduction to the Inquiry 19 Introduction 19 Related inquiries 20 The approach to reform 22 The Inquiry process 23 Scope of the Inquiry 24 Discussion Paper outline 25 How to make a submission 30 2. The Current Classification Scheme 31 Summary 31 History of censorship and classification 31 Classification cooperative scheme 32 Broadcasting Services Act 33 Assessing the current scheme 36 The need for fundamental reform 42 ALRC’s views 43 3. Media Convergence and the Transformed Media Environment 45 Summary 45 Media convergence and the transformed media environment 45 Media convergence and ‘broken concepts’ in legislation 54 4. Guiding Principles for Reform 57 Summary 57 Guiding Principles 59 5. The Proposed Classification Scheme 73 Summary 73 The case for reform 73 Benefits of the proposed new National Classification Scheme 74 A new National Classification Scheme 77 The new Classification of Media Content Act 78 2 National Classification Scheme Review Part 2 A New Classification System 83 6. What Content Should be Classified? 85 Summary 85 How to determine what should be classified 86 Feature-length films, television programs and computer games 95 All content likely to be X 18+ 99 All content likely to be RC 100 Modifications—when content should be reclassified 101 Voluntary classification 103 7. Who Should Classify Content? 105 Summary 105 Who currently classifies content? 106 How to determine who should classify content 108 Content that must be classified by the Classification Board 111 Content that may be classified by authorised industry classifiers 114 Classification checks and safeguards 119 Industry bodies and their relationship with the Regulator 125 8. Markings, Advertising, Display and Restricting Access 127 Summary 127 Restricting access to content likely to be classified R 18+ 128 Restricting access to content classified R 18+ and X 18+ 130 Removing mandatory access restrictions on MA 15+ content 130 Methods of restricting access 131 Markings for content that must be classified 139 Advertising for content that must be classified 141 Public display of media content 143 9. Classification Categories and Criteria 147 Summary 147 The existing classification categories 148 Classification categories under the proposed classification system 149 Common classification categories for all media content 153 Existing classification criteria 157 Common classification criteria for all media content 158 Legislation or industry codes 160 Researching community standards 161 10. Refused Classification Category 163 Summary 163 RC—Relevance to this review and overview of the concept 164 The legislative framework 165 The current scope of RC content 169 Criticisms of the current scope of RC 175 ALRC’s views 183 Content 3 Part 3 Administering and Enforcing the New Scheme 187 11. Codes and Co-regulation 189 Summary 189 Regulatory forms 189 Factors in determining regulatory form 191 Industry codes 192 ALRC’s proposals 196 12. The New Regulator 201 Summary 201 Existing agencies 202 Functions of the new Regulator 204 13. Enacting the New National Classification Scheme 211 Summary 211 The new Classification of Media Content Act 211 The classification cooperative scheme 212 Commonwealth legislative powers 214 ALRC’s views 216 14. Enforcing Classification Laws 219 Summary 219 Enforcement of classification offline and online 220 Enforcement under the classification cooperative scheme 220 Enforcement of online content regulation 223 Enforcement problems 225 ALRC’s proposals 226 Appendix 1. Agencies, Organisations and Individuals Consulted 233 Appendix 2. Platform Neutrality and the Question of Media Effects 237 Appendix 3. Proposed Classification Markings 241 Appendix 4. What Must be Classified and by Whom and What Must be Restricted? 243 Terms of Reference Review of Censorship and Classification Having regard to: • it being twenty years since the Australian Law Reform Commission (ALRC) was last given a reference relating to Censorship and Classification • the rapid pace of technological change in media available to, and consumed by, the Australian community • the needs of the community in this evolving technological environment • the need to improve classification information available to the community and enhance public understanding of the content that is regulated • the desirability of a strong content and distribution industry in Australia, and minimising the regulatory burden • the impact of media on children and the increased exposure of children to a wider variety of media including television, music and advertising as well as films and computer games • the size of the industries that generate potentially classifiable content and potential for growth • a communications convergence review, and • a statutory review of Schedule 7 of the Broadcasting Services Act 1992 and other sections relevant to the classification of content I refer to the ALRC for inquiry and report pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996, matters relating to the extent to which the Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act), State and Territory Enforcement legislation, Schedules 5 and 7 of the Broadcasting Services Act 1992, and the Intergovernmental Agreement on Censorship and related laws continue to provide an effective framework for the classification of media content in Australia. Given the likelihood of concurrent Commonwealth reviews covering related matters as outlined above, the Commission will refer relevant issues to those reviews where it would be appropriate to do so. It will likewise accept referral from other reviews that fall within these terms of reference. Such referrals will be agreed between the relevant reviewers. 6 National Classification Scheme Review 1. In performing its functions in relation to this reference, the Commission will consider: 1. relevant existing Commonwealth, State and Territory laws and practices 2. classification