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Submission To: Australian Law Reform Commission Re: National Classification Scheme Review (Issues Paper 40)

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Submission To: Australian Law Reform Commission Re: National Classification Scheme Review (Issues Paper 40) CI 1244 I Graham Submission To: Australian Law Reform Commission Re: National Classification Scheme Review (Issues Paper 40) Table of Contents 1. Introduction ................................................................................................................................................... 2 2. Approach to the Inquiry (Q1) ........................................................................................................................ 2 3. Designing a regulatory framework ................................................................................................................ 2 3.1 Why classify and regulate content? (Q2) ............................................................................................... 2 3.2 What content should be classified and regulated? (Q3 - Q10) .............................................................. 4 3.3 How should access to content be controlled? (Q12 - Q14) .................................................................... 6 3.4 Who should classify and regulate content? (Q16 - Q18) ....................................................................... 7 3.5 Classification fees (Q19) ........................................................................................................................ 8 4. Classification categories and criteria (Q20 -23)............................................................................................ 8 5. Refused Classification (RC) category (Q24 - Q25) .................................................................................... 10 5.1 Protecting whom, from what, and why?............................................................................................... 11 5.2 Matters contributing to excessive breadth of the RC Category ........................................................... 11 5.2.1 Mutually exclusive classification categories ............................................................................. 11 5.2.2 Impact ......................................................................................................................................... 12 5.2.3 Effects of violence ..................................................................................................................... 12 5.2.4 Promote, incite or instruct in matters of crime or violence ....................................................... 12 5.2.5 Directly or indirectly "advocates" and/or "praises" a "terrorist" act ......................................... 14 5.2.6 Increased restrictions on X18+ category effective from 2000 ................................................... 14 5.2.7 Offends against the standards of morality, decency and propriety generally accepted by reasonable adults .................................................................................................................................. 16 5.2.8 "Reasonable adults" and "a reasonable adult" ........................................................................... 16 5.2.9 Revolting or abhorrent phenomena ............................................................................................ 17 5.2.10 RC as applied to online content ............................................................................................... 17 6. Reform of the cooperative scheme (Q26 - Q28) ......................................................................................... 18 7. Other issues (Q29) ....................................................................................................................................... 19 7.1 Classification criteria: Normal female anatomy deemed to have too much "detail" ........................... 19 7.2 Existing online content regulatory framework ..................................................................................... 20 7.2.1 Almost incomprehensible legislative provisions ....................................................................... 20 7.2.2 Restricted Access System requirements .................................................................................... 20 7.2.3 Link deletion orders issuable by the ACMA ............................................................................. 21 7.2.4 Undesirable consequences of prohibition on Australian based hosting of X18+ material ........ 22 7.3 Classification Boards: Appointment and Operational Procedures ....................................................... 23 7.3.1 Inadequate staggering of appointment dates .............................................................................. 23 7.3.2 Length of term of appointment to Classification Boards .......................................................... 23 7.3.3 Procedures for appointing permanent members ......................................................................... 23 7.3.4 Procedures for appointing, and use of, temporary members ...................................................... 24 7.3.5 Definitions of maximum term/period of appointment of members ........................................... 24 7.3.6 Use, as classifiers, of employees of the Attorney-General's Department .................................. 25 7.3.7 Classification Boards' Decision Making Processes ................................................................... 25 7.4 Censorship Ministers' powers to force review of a classification ........................................................ 26 Submission from I. Graham Page 1 of 26 1. Introduction 1. The writer of this submission is the provider of the web site "libertus.net": about censorship and freedom of expression, primarily in Australia. The web site has been online since late 1995 and is widely regarded as the most comprehensive online resource about the history and state of censorship in Australia. 2. Further, to avoid any potential misconceptions: during the period mid 2000 to mid 2007, the writer was the Executive Director of the non-profit membership-based organisation Electronic Frontiers Australia Inc. (EFA) and, in that capacity, met with ALRC representatives during the privacy review, and appeared before numerous Federal Parliamentary Committee inquiries, etc. Since mid 2007, the writer has not been in that role, nor on the Board of EFA. This submission is lodged in an entirely personal capacity. 2. Approach to the Inquiry (Q1) Q1. In this Inquiry, should the ALRC focus on developing a new framework for classification, or improving key elements of the existing framework? 3. The ALRC should focus on: (a) Improving the "classification" scheme (i.e. provisions of the Classification Act, Code, Guidelines and associated Intergovernmental Agreement). (b) Developing an entirely new framework in relation to online content because the existing regulatory scheme, which applies elements of a classification scheme designed primarily for offline commercial entertainment media, is impractical and inappropriate. (c) Overhauling, or deleting, the "Refused Classification" category, much of which unduly infringes Classification Code Principle 1(a), and Article 19 of the ICCPR. (d) In relation to all types of media/platforms, developing classification and/or regulatory frameworks that are consistent with Australia's international obligations under Article 19 of the International Covenant on Civil and Political Rights (ICCPR)1 (which would likely result in Australian "classification" scheme/s being significantly more consistent with the situation in numerous, probably all, other Western democratic countries). 3. Designing a regulatory framework 3.1 Why classify and regulate content? (Q2) Q2. What should be the primary objectives of a national classification scheme? 4. The primary objective should be to facilitate informed choice, in a community of diverse views and standards, from the broadest possible range of content across all platforms and services. 5. The classification scheme should not have an objective of prohibiting, or attempting to prevent, all adults' access to content that is considered offensive by some adults in a diverse, multi-cultural, multi-religion society (as the current scheme does; for an example, see Section 5.2.6 later herein). 6. The current principles/objectives in the National Classification Code (s1) were developed during a period when few members of the public were providers of content, and subsequently amended by politicians at various times in an ad hoc manner, resulting in tension/conflict and associated potential for inconsistent classification decisions. 7. Issues with the current principles are discussed below (italics denote extracts from the Classification Code): 1. Classification decisions are to give effect, as far as possible, to the following principles: (a) adults should be able to read, hear and see what they want; 8. Principle (a) does not recognise that adults should be able to say what they want (e.g. in content they provide) nor that adults should be able to play computer games that they want. It should, at the least, be amended to include the words "say" and "play". Alternatively it should be replaced with phrasing such as: "adults should be able to seek, receive and impart information and ideas of all kinds, regardless of frontiers, 1 International Covenant on Civil and Political Rights (ICCPR) http://www2.ohchr.org/english/law/ccpr.htm Submission from I. Graham Page 2 of 26 either orally, in writing or in print, in the form of art, or through any other media of his choice" (i.e. similar to Article 19 of the ICCPR, which Australian Governments have been purporting
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