Introduction and overview
Referral and conduct of the inquiry
On 25 June 2015, the Senate referred an inquiry into personal choice and
community impacts to the Senate Economics References Committee (committee) for
inquiry and report by 13 June 2016.
The committee's terms of reference require it to report on:
The economic and social impact of
legislation, policies or Commonwealth guidelines, with particular reference to:
- the sale and use of tobacco,
tobacco products, nicotine products, and e‑cigarettes, including any
impact on the health, enjoyment and finances of users and non-users;
- the sale and service of alcohol,
including any impact on crime and the health, enjoyment and finances of
drinkers and non-drinkers;
- the sale and use of
marijuana and associated products, including any impact on the health,
enjoyment and finances of users and non-users;
- bicycle helmet laws, including any
impact on the health, enjoyment and finances of cyclists and non-cyclists;
- the classification of
publications, films and computer games; and
- any other measures
introduced to restrict personal choice 'for the individual's own good'.
In accordance with usual process, the committee advertised the inquiry
on its website and wrote to relevant persons and organisations inviting
submissions to the inquiry.
To date, the committee has received 485 public submissions and two confidential
submissions. The public submissions are available on the committee webpage.
The committee has held seven public hearings. At its first public hearing,
on 11 September 2015 in Canberra, the committee heard evidence on decision
making generally. The other public hearings focused on specific matters in
relation to the inquiry terms of reference as follows:
on 3 November 2015, in Parramatta, the committee heard evidence
on proposed restrictions on the activities of fans of the Western Sydney
Wanderers Football Club;
on 16 November 2015, in Melbourne, the committee heard evidence
on mandatory bicycle helmet laws in accordance with inquiry term of reference
on 20 November 2015, in Sydney, the committee heard evidence
relating to inquiry term of reference (b) concerning the sale and service of
alcohol with focus on Sydney's lockout laws;
on 9 March 2016, in Sydney, the committee heard evidence regarding
inquiry term of reference (a) concerning tobacco, nicotine and e-cigarettes;
on 11 March 2016, in Sydney, the committee heard evidence
regarding the sale and service of marijuana in accordance with inquiry term of
reference (c); and
on 22 April 2016, in Canberra, the committee heard evidence in
relation to the classification of publications, films and computer games in
accordance with inquiry term of reference (e).
This report focuses on the evidence in relation to the term of
reference (e) concerning classification of publications, films and
The committee thanks all those who have participated in the inquiry so
Classification under Australian law
The classification of publications, films and computer games is
regulated predominantly by the National Classification Scheme, but is
administered differently in each state and territory.
The Commonwealth, states and territories are bound to the Intergovernmental
Agreement on Censorship (Intergovernmental Agreement), first agreed to in
1996. The aim of the agreement is to 'make, on a cooperative basis, Australia's
censorship laws more uniform and simple with consequential benefits to the
public and the industry'.
The Department of Communications and the Arts (the department) outlined
the division of regulatory responsibilities:
Broadly, the Commonwealth is responsible for the
classification of the films, publications and computer games in accordance with
the Classification (Publications, Films and Computer Games) Act 1995.
Within those arrangements, the states and territories are responsible for the
enforcement of classification laws. In practice, that means that in each
jurisdiction there is classification legislation which sets out, among other
things, the offences and penalties for those in, for example, distributing
refused classification material.
The Australian Classification Board (ACB) is a statutory board
established under the Commonwealth Classification (Publications, Films and
Computer Games) Act 1995 (Classification Act). Its role is to classify
'films, computer games and publications for exhibition, sale or hire in
The ACB is required to provide advice accompanying each classification to
inform consumers 'which classifiable elements (that is themes, violence, sex,
language, drug use and nudity) have led to the classification decision'.
The Commonwealth and the states and territories have agreed to the
National Classification Code (the Code) and the Classification Guidelines for
publications, films and computer games (the Guidelines), which are tools to be
used by the ACB and Review Board in making their decisions. The Intergovernmental
Agreement requires that all non-minor amendments to the Scheme and any changes
to the Code or the Guidelines must be considered and unanimously agreed to by
all classification ministers.
It would appear that the Intergovernmental Agreement serves as a
challenge to establishing national consistency and to instituting reform. The
Eros Association (Eros) informed the committee that there were contradictions
between federal and state and territory classification statutes:
The sale of X18+ films are made legal through the Classification
(Publications, Films and Computer Games) Act 1995 (Cth). However, each
state in Australia, through their respective classification enforcement
statutes, have ensured that the legal status of X18+ rated films remains in a
grey area. Any adult can legally buy and possess X18+ rated films (with the
exception of Western Australia) but it is illegal for an adult retail store (an
age-restricted premises) to sell such a film in all states. This is all despite
the fact that an adult is able to access via the internet or mail order
material that is not classified but would likely to be classified X18+ or
indeed RC given the relatively narrow scope of consensual sex acts between
adults that is allowed within an X18+ classification.
Under state and territory classification laws, all films and computer
games must generally be classified before they can be exhibited, demonstrated,
sold or hired in Australia. There are a number of categories of films and a
smaller number of categories of computer games that are exempt from
classification, such as educational, business, professional and scientific
films and games (as long as they would otherwise be classified G or PG).
In contrast to films and computer games, only submittable publications
need to be classified. Submittable publications are defined in the
Classification Act as publications that contain depictions (ie. images) or
descriptions (ie. text) that are:
likely to be classified Refused Classification;
likely to cause offence to a reasonable adult to the extent that
the publication should not be sold or displayed as an unrestricted publication;
unsuitable for a minor to see or read.
Publications, films and computer games are generally classified against
six classifiable elements: themes, violence, sex, language, drug use and
nudity. The ACB's classification decisions consider the impact of each of these
elements, including their frequency, intensity and level of detail, and their
cumulative effect. The ACB also considers the context of these elements,
including the purpose and tone of the material and how it is treated.
The classification categories for films and computer games are set out
Table 1.1: Classification for films and computer games
Advisory categories for films and computer games
G – General
PG – Parental Guidance
M – Mature
Restricted categories for films and computer games
MA 15+ – Mature Accompanied
R 18+ – Restricted
Restricted categories of adult
X 18+ – Restricted
RC – Refused Classification
The department explained that when classifying content, certain matters
must be considered in accordance with the Classification Act, such as:
the standards of morality, decency and propriety generally
accepted by reasonable adults;
the literary, artistic or educational merit (if any) of the
the general character of the content, including whether it is of
a medical, legal or scientific character; and
the persons or class of persons to whom it is published or is
intended or likely to be published (i.e. the audience).
In addition to the requirements of the Classification Act and the Code,
the Guidelines set out broadly what fits into each classification
category. The requirements are assessed in accordance with a scale of
'classifiable elements' such as themes, violence and sex.
As a case in point, the ACB has to determine the definition of 'offensive or
abhorrent' practices in accordance with the requirements and how the definition
applies to the content before it.
Review of the National Classification Scheme
In February 2012, the Australian Law Reform Commission (ALRC) released
its report into classification under the present legal framework. The ALRC
found that there were a number of significant issues with the current
regulatory framework that created confusion within the industry and for
viewers, in addition to failing to meet the intended goals of the system. These
issues included the:
inadequate regulatory response to changes in technology and
lack of clarity about whether films and computer games
distributed online must be classified;
'double handling' of media content, with films and television
programs being classified twice for different formats (e.g., 2D and 3D) and
different platforms (e.g., broadcast television and DVD);
content prohibited online, including some content that may not be
prohibited in other formats, such as magazines;
inconsistent state and territory laws concerning restrictions and
prohibitions on the sale of certain media content, such as sexually explicit
films and magazines;
low compliance with classification laws in some industries,
particularly the adult industry, and correspondingly low enforcement; and
a need to clarify the responsibilities of the Classification
Board, the Australian Communications and Media Authority (ACMA) and other
Australian Government agencies and departments involved with classification and
media content regulation.
The ALRC recommended that a new classification scheme be designed to
address both the changing media landscape and the current problems in the
classification regulatory scheme. The key recommendations emanating from the
review included the following:
Platform-neutral regulation—one legislative regime establishing
obligations to classify or restrict access to content across media platforms.
Clear scope of what must be classified—that is feature films,
television programs and certain computer games that are both made and
distributed on a commercial basis and have a significant Australian audience.
A shift in regulatory focus to restricting access to adult
content—imposing new obligations on content providers to take reasonable steps
to restrict access to adult content and to promote cyber-safety.
Co-regulation and industry classification—more industry
classification of content and industry development of classification codes,
subject to regulatory oversight.
Classification Board benchmarking and community standards—a clear
role for the Classification Board in making independent classification
decisions using classification categories and criteria that reflect community
An Australian Government scheme—replacing the current
classification cooperative scheme with enforcement of classification laws under
A single regulator—with primary responsibility for regulating the
Government response to the ALRC
Following the release of the ALRC report in 2012, the Australian
Government clarified that it would seek the views of all the states and
territories on the report. Once those views were gathered, the intention was to
use them to develop a Commonwealth position on the ALRC recommendations and
thereafter finalise the Government response to the ALRC report.
Some of the recommendations of the ALRC were implemented in 2014 by way
of legislation introduced by the government which amended the Classification
However, in relation to the ALRC's recommendation on the establishment
of a more co-regulatory or industry-based classification model, this change still
requires the agreement of the Commonwealth, states and territories in
accordance with the Intergovernmental Agreement. When questioned about a
Commonwealth response to the ALRC report and possible implementation of the
remainder of its recommendations, Ms Cathy Rainsford, Assistant Secretary at
the Classification Branch, Department of Communications and the Arts explained
the challenges relating to the 1995 accord:
I would say that the requirement that there needs to be
unanimous agreement to reform across all classification ministers in the states
and territories as well as in the Commonwealth is a challenge in the scheme.
Classification of content—film, computer games and publications—can be a
sensitive and controversial area and different jurisdictions take different
views on what reform is necessary and how to progress that.
Personal choice and classification
1.25 Under the Code, one of the primary guiding principles of Australian
classification is that 'adults should be able to read, hear, see and play what
However, according to the department, this principle is to be equally weighed
against three other key principles:
the protection of underage viewers from material that is likely
to harm or disturb them;
that everyone should be protected from exposure to unsolicited
material that they find offensive; and
the need to take account of community concerns about depictions
that condone or incite violence, particularly sexual violence, and the
portrayal of persons in a demeaning manner.
Evidence to the inquiry was divided into two main schools of thought ‑
those who were supportive of the classification of media content, and those who
argued that the classification regulations amounted to an infringement on the
personal choice of consumers to access entertainment freely.
The primary argument against the current classification regulation
scheme insofar as it applies to adult and restricted media was that it 'has
completely collapsed, leaving many people exposed to prosecution from outdated
official censorship laws and with limited personal freedom to read, see or
hear, harmless erotic material'.
Another concern related to a central tenet of the Code which is to
ensure that adults can exercise personal choice in what kind of content they
access. It was suggested to the committee that the current classification
regime can potentially conflict with this concept by restricting the ability of
people to freely access some types of content. The view was put that there
remains an inherent tension in finding an appropriate and desirable balance
between ensuring that adults can access content freely, while protecting those
who may be negatively impacted by the content. This balance was at the core of
the debate regarding personal choice in relation to classification.
The Arts Law Centre of Australia (Arts Law Centre) noted the importance
of maintaining a 'balance between allowing adults to read, hear and see what
they want, protecting minors from unsuitable material, and taking into account
However, they also argued that it was critically important to maintain freedom
of speech and expression through the means of artistic mediums, which is
impacted by classification.
The Arts Law Centre continued:
(Publications, Films and Computer Games) Act 1995 (Cth) has the potential
to conflict with the common law freedom of speech. A well-tailored
classification system, the purpose of which is primarily to enable adults to
make an informed choice as to what they want to see, hear and read, and what to
allow their children to have access to, is an effective mechanism to regulate
freedom of expression provided it is not used as a means to censor material
that is otherwise legal.
The Australian Council on Children and the Media (ACCM) provided a
contrasting view, particularly with regard to children. It argued that
classification is a social good carried out by government to ensure the
community's safety and protection from harm.
ACCM held the view that:
Questioning the appropriateness of government intervention
for people's 'own good' is based on a view that, we submit, tends to overlook
the social nature of our species; our interconnectedness; and the pain we feel
when others are hurt‑even if they hurt themselves.
The ACCM related this issue to that of the relationship between children
and classification, arguing that a societal approach to classification is
required to ensure that parents are able to appropriately monitor and manage
their children's consumption of media.
Impact of refusing classification
In accordance with the Guidelines, under the Refused
Classification (RC) category, material that is refused classification is
commonly referred to as being 'banned'. Classified RC material contains content
that is 'very high in impact and falls outside generally accepted community
When the ACB assess whether content should be refused classification,
the benchmark is set according to the Code. For example, films classified RC
are defined under the Code as:
- 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 classified; 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); or
- promote, incite or instruct in matters of crime or
Other types of content are similarly defined under the Code. Further
advice is contained in the Guidelines, which suggest that content classified as
RC will generally include material such as child abuse, sexual violence,
extreme forms of violence, practices such as bestiality, and instructional or
promotional content relating to crime or drug use.
Content that advocates committing a terrorist attack must be classified RC
under section 9A of the Act.
Films, computer games and publications that are classified RC cannot be
sold, hired, advertised or legally imported into Australia. According to one
submitter, a refusal to classify material 'effectively censors' that material
because of the fact that it can't be bought, hired or sold.
Eros similarly argued that the 'current system of official
classification in Australia, is now a system of censorship'.
It suggested that sexually explicit non‑violent material should have a
'right to exist in society, free from the calls of those who feel offence at
the fact that it exists'.
Eros put the view that the first principle of the Code‑to ensure
that adults should be permitted to read, hear, see and play what they want to‑is
'not being upheld', particularly in relation to sexually
It gave the following reasons to support its claim:
the contradiction between federal and state classification
the X18+ Licence in the ACT is no longer cost effective;
the only wholesale business classifying X18+ films withdrew from
the market due to the cost prohibitive nature of classifying such films,
compounded by frequent abuse of power by customs and customs officials, as well
as unfair market advantage when other businesses imported films that had been
classified at the expense of the wholesaler; and
the restrictive nature of X18+ classification and the number of
consensual sex acts between adults that are refused classification (RC).
Additionally, it was noted that under current regulations, content can
be refused classification when it depicts activities largely accepted in the
community. Eros noted that certain sexual acts are prohibited and will not be
granted classification under the 2012 Guidelines, which includes otherwise
legal and consensual behaviour.
It claimed that this discriminates against those who participate in these acts,
including members of the lesbian, gay, bisexual, transsexual and intersex
community (LGBTI community).
The National LGBTI Health Alliance (Alliance) also raised concerns
regarding the classification regime. It suggested that the 'discriminatory
classification' of publications, films and computer games has adversely
impacted the health of members of the LGBTI community.
It argued that evidence has indicated that media exposure to realistic
depictions of LGBTI populations can lead to 'improved understanding and
prejudice reduction, by offering alternatives to stereotypical, negative and
This factor and the lack of positive portrayals of the LGBTI community in
classified media negatively impacts young people struggling with sexual
identity, and can result in further alienation and negative mental health
Free TV argued that the rate of technological change was outpacing the
classification regime, creating inconsistencies in how classification is
It suggested that recent developments in media, such as the introduction of
online streaming services, have significantly impacted the classification
regime, as they do not adhere to the 'traditional' forms of media which
underpin the current classification system.
Free TV made the point that this situation has resulted in an inconsistent
approach to classification which creates confusion for both consumers and
content providers. In fact, in 2012, the ALRC noted in its report on
classification that technological innovation has taken place at such a rate
that it has reduced the relevance of traditional distinctions between the types
of content and the times or ways it can be accessed.
Free TV demonstrated this point with the example of classification zones
on commercial free-to-air television programming. It argued that classification
time zones, where programs under a certain classification can be shown within a
certain timeframe, were originally designed to protect children from viewing
However, it suggested that this requirement was no longer applicable for two
reasons. Firstly, children do not require protection in the same way as in the
past, due to technological advances such as parental locks and
children-specific television channels such as ABC2 and ABC3.
Secondly, Free TV argued that the growth of on-demand streaming services
has given rise to an expectation that content will be available at a time of
one's choosing, without restrictions such as classification zones.
This effectively places different rules on content depending on the means by
which it is accessed.
Furthermore, it was noted by Eros that the same content can be
classified differently depending on the type of technology used to access it.
Eros argued that content that is otherwise refused classification can easily be
accessed online or via mail order.
The current [Act] is outdated and does not reflect the
reality of the decline in sales of DVDs generally, due to digital delivery and
consumption models made possible by fast speed internet and the fact that
adults can access content on the internet that has not been classified.
In response, Eros and Free TV argued for the need for the consistent
application of classification standards across all forms of media.
Furthermore, Eros indicated that implementation of the ALRC recommendations
would go some way to addressing their concerns.
The committee recognises that there have been substantial technological
and other changes across the media landscape which have brought the adequacy of
the current classification regulatory framework into question.
Submitters to the committee argued that the pace of innovation,
particularly in relation to personal entertainment such as on-demand streaming,
has fundamentally challenged the nature of classification laws. Questions were
also raised about the role of classification in an environment where content is
widely accessible regardless of the restrictions placed on it by regulatory
The committee recognises the need for government attention to this
issue, particularly in light of current policy challenges such as online
piracy. As highlighted in evidence to the committee, a regulatory system that meets
community standards and effectively responds to current and future challenges
regarding the control of content in Australia is fundamentally important.
Senator Chris Ketter
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