CHAPTER 12
Committee view and recommendations
12.1
This inquiry presented the committee with an opportunity to examine a range
of important issues relating to the National Classification Scheme, as well as
to assess the effectiveness of regulatory regimes for media not included in the
National Classification Scheme. This was the first major review of the National
Classification Scheme since it was introduced over 15 years ago. As explained
earlier in the committee's report, the aim of the National Classification
Scheme (set out in the Intergovernmental Agreement underlying its establishment)
is to 'make, on a co-operative basis, Australia's censorship laws more uniform
and simple with consequential benefits to the public and the industry'.[1]
On the basis of evidence presented during the course of this inquiry, the
committee has reached the conclusion that the National Classification Scheme
has not been successful in achieving this aim. Simply put, the classification
system in Australia is in many ways 'broken', and requires substantial and
urgent reform.
Flaws in the National Classification Scheme
12.2
In the committee's view, the National Classification Scheme is flawed in
a number of key areas:
-
Aside from the complexity of its legislative framework, the scheme
does not protect children from material that is likely to harm them; nor does
it protect others more broadly from exposure to unsolicited material that they
may find offensive. To this end, community concerns in relation to sexual
violence and the portrayal of persons in a demeaning manner are being ignored.
-
Publishers and distributors of magazines classified with a serial
classification declaration do not maintain the material in the publications at
the classification level given by the Classification Board for the period of
the declaration. As a result, material which should be Refused Classification
is appearing in publications which have a serial classification declaration.
-
Publishers and distributors ignore call-in notices issued by the
Director of the Classification Board, meaning that pornographic material which
should be Refused Classification remains for sale throughout Australia.
-
Numerous films with graphic depictions of actual sex have been
classified R18+, despite the Guidelines for the Classification of Films and
Computer Games setting out that the 'general rule' for R18+ classification
is "simulation, yes – the real thing, no". Further, the Guidelines
for the Classification of Films and Computer Games rely heavily on
subjective assessments of impact and context, resulting in what one submission
described as a 'creep downwards' of material into lower classification categories.[2]
-
Restricted magazines and R18+ films are displayed in retail
outlets alongside magazines, comics and DVDs for children.
-
'Artistic merit' remains a defence to child pornography and child
abuse material offences in many states, meaning that sexualised images of naked
children can be exhibited in public galleries under the guise of 'art'.
-
The scheme has failed to adequately keep pace with the advent of
new technology, meaning that ambiguity now exists as to which regulatory regime
applies to some content. A major example of this is the confusion over how
films, publications and computer games that are provided online are to be
classified. The interaction of the Classification Act 1995 and the Broadcasting
Services Act 1992 creates complexity that is easily misunderstood by
industry participants and consumers.
-
Significantly, one of the shortcomings of the scheme is that it
is not platform neutral. That is, it does not provide for a consistent
classification decision-making framework in a converged media environment. The
effect is that the same content, when viewed on different screens, may be
subject to different classification regimes. An example of this phenomenon is
the treatment of computer games that are provided on mobile phones. The same
game may be available on a personal computer, or may be accessed online through
a web browser. Evidence to the committee suggests that each format is likely to
be treated differently as a result of industry confusion.
12.3
In the committee's view, the multiple flaws in the National Classification
Scheme mean that it cannot be sustained in its current form. Accordingly, the
committee believes that significant changes should be made to the system. In
that regard, the committee notes the calls from many witnesses and submitters
to the inquiry for consistency and uniformity with regards to classification. There
are two aspects to 'uniformity': uniformity between jurisdictions; and uniformity
in decision-making processes and treatment of content.
12.4
As a starting point, several key principles should underlie a
classification scheme in Australia. Following adoption of those basic
principles, the committee believes that the Australian Government should
endeavour to investigate all constitutional options for strengthening its
legislative power in the interests of establishing a truly national and uniform
classification scheme. Finally, the committee considers that a range of
specific amendments or enhancements to the scheme will improve its overall
operability, and will allow it to more successfully achieve its intended
purpose.
Reforming principles
12.5
As discussed earlier in the committee's report, the National
Classification Code sets out four key principles which, as far as possible,
should be taken into consideration when making classification decisions:
-
adults should be able to read, hear and see what they want;
-
minors should be protected from material likely to harm or
disturb them;
-
everyone should be protected from exposure to unsolicited
material that they find offensive;
-
community concerns should be taken into account in relation to:
-
depictions that condone or incite violence, particularly sexual
violence; and
-
the portrayal of persons in a demeaning manner.
Aligning decision-making with
community standards
12.6
The committee sought feedback from almost all witnesses who appeared
before it in relation to whether the principles set out in the National
Classification Code remain appropriate. This issue is particularly important
given the easy access that children have to an array of content through a
variety of media, and which can be accessed through mobile devices, making it
increasingly difficult for parents to supervise all of their children's media
viewing. There is also the matter of outdoor advertisements which, as witnesses
pointed out to the committee, is very difficult to avoid.
12.7
A number of witnesses indicated that they supported the principles as
set out in the National Classification Code.[3]
However, other witnesses outlined changes that they would like to see made to
the principles. Mr Lyle Shelton from the Australian Christian Lobby (ACL)
indicated that, in his view, the key principle should be the protection of
children from inadvertent exposure to material that is clearly not appropriate
for them:
I think there are not too many people who would argue that exposure
to pornography and violence is not harmful to minors. Unfortunately, we have a situation
where it is very easy for children to come across these sorts of images on all
the media...[4]
12.8
Professor Elizabeth Handsley of the Australian Council on Children and
the Media noted that the principles in the National Classification Code are
intended to be balanced against each other;[5]
and, in this context, the committee also acknowledges other evidence which
emphasised the principle of the right of adults to choose what they want to
read, hear and see.[6]
12.9
The committee received significant evidence about the link between
exposure to material classified X18+ and the sexual abuse of children. Further,
the committee also received evidence in relation to the harms caused by the
sexualisation of children and the objectification of women in all media.
12.10
The committee believes that an express statement should be included in
the National Classification Code which clarifies that the four key principles
to be applied to classification decisions are to be given equal consideration
and balanced against one another.
Sexualisation of children and objectification of women
12.11
In the committee's view, the National Classification Scheme does not
adequately prevent the sexualisation of children and the objectification of
women.
12.12
ACL highlighted that, in making classification decisions, in addition to
taking into account views of the community with respect to violence and
demeaning portrayals, there now needs to be formal recognition of community
concerns about the sexualisation of society, and the objectification of women.[7]
The committee agrees with this proposal, and suggests that the principles in
the National Classification Code be expanded to take into account community
concerns about the sexualisation of society, and the objectification of women.
12.13
In 2008, the Senate Environment, Communications and the Arts Committee
(ECA Committee) recommended that its report, Sexualisation of children in
the contemporary media, be further considered by the Senate in 18 months.[8]
While the current inquiry did consider the issue of the sexualisation of
children in the media, it only considered the issue in the context of the
effectiveness of the National Classification Scheme, and various other
regulatory regimes. Nevertheless, it is apparent that significant
recommendations by the ECA Committee have not been implemented.
12.14
It was beyond the scope of this inquiry to undertake a comprehensive
analysis of the progress made by industry bodies and others in addressing the
sexualisation of children in the contemporary media. Accordingly, the committee
takes that view that the Senate, as a matter of urgency, should establish an
inquiry to consider the progress made by industry bodies and others in
addressing the sexualisation of children in the contemporary media, and
specifically, the progress which has been made in the implementation of the ECA
Committee's recommendations in its 2008 report.
Need for objective decision-making
12.15
The committee is concerned that the current decision-making framework in
the National Classification Scheme allows for subjective judgements to
influence classification decisions.
12.16
Ms Barbara Biggins, a former Convenor of the Classification Review
Board, emphasised that a classifier should not be able to bring his or her own
interpretation into the decision-making process. Importantly, it is the wording
of the guidelines which must be followed:
[T]he words are all important. If you are in a classifier's
position, you are not at liberty to bring your own personal interpretation of
what should be an M or MA+ or R18+; you are obliged to apply the guidelines as
approved by the state and territory and federal ministers. It is those state
and territory and federal ministers who bear the responsibility for the form of
the criteria that are being applied. The classifiers are the servants of the
ministers, and they do their job according to the criteria. The wording is all important.[9]
12.17
Therefore, the committee is of the view that the Guidelines for the
Classification of Films and Computer Games and the Guidelines for the
Classification of Publications 2005 need to be revised. The preamble to
both guidelines should expressly state that the methodology and manner of
decision-making should be based on a strict interpretation of the words in the
guidelines.
12.18
The committee was provided with some specific examples of subjective
criteria being considered as part of the classification decision-making
process. As the committee heard, the revision of the Guidelines for the
Classification of Films and Computer Games in 2003 placed more emphasis on
impact and context, with the result that there has been a ripple effect of
content being pushed into lower classification categories.[10]
In the committee's view, the subjective assessment of impact and context should
not be a consideration in the making of classification decisions.
Community Assessment Panels
12.19
The committee is of the view that greater attention needs to be had to
community concerns in relation to classification issues.
12.20
Community Assessment Panels have been used at various times in the
history of the National Classification Scheme to assist in gauging community
standards.[11]
However, the Attorney-General's Department noted that Community Assessment
Panels were not intended to be standing bodies:
Classification Board members are themselves selected to be broadly
representative of the Australian Community and [Community Assessment Panels
have] been employed to ensure parity between Board decisions and the views of
representative samples of community members.[12]
12.21
The committee appreciates that members of the Classification Board and
the Classification Review Board are selected to be broadly representative of
the community. However, standing Community Assessment Panels make a valuable
contribution to the determination of community standards. The committee considers
that standing Community Assessment Panels should be introduced to assist in the
determination of community standards for the purpose of classification
decision-making.
Other reforms: application of the National Classification Scheme to artworks
and an exemption for cultural institutions
12.22
The committee notes that the application of the National Classification
Scheme to artworks for public exhibition or display is limited. The committee
commends the actions of artists who have sought classification of their work
prior to public exhibition or display. In the committee's view, obtaining
classification assists in ensuring that audiences can be provided with
appropriate advice (and, where necessary, warnings) regarding the nature of the
artwork.
12.23
The committee understands that the cost of application fees may present
difficulties to artists, and believes that the classification of artworks
should be exempt from application fees.
12.24
The committee strongly opposes the inclusion of the artistic merit
defence for child pornography offences in state legislation. In the committee's
view, the NSW Parliament has taken a positive step in removing the defence
of artistic merit for the offences of production, dissemination and possession
of child abuse material in the Crimes Act 1900 (NSW). Accordingly, the
committee recommends that the Australian Government, through the Standing
Committee of Attorneys-General, pursue with relevant states the removal of the
artistic merit defence for child pornography offences.
12.25
The committee notes the difficulties that cultural institutions, such as
the National Film and Sound Archive, encounter in obtaining appropriate
exemptions under state and territory legislation for the exhibition of
unclassified films. The committee supports self-classification with appropriate
oversight in the circumstances outlined by the National Film and Sound Archive
in its evidence to the committee. Therefore, the committee recommends that
provision be made in the Classification Act 1995 for an exemption for
cultural institutions, including the National Film and Sound Archives, to allow
them to exhibit unclassified films. This exemption should be subject to relevant
institutions self-classifying the material they exhibit and the Classification
Review Board providing oversight of any decisions in that regard.
Towards a truly national scheme
12.26
A number of issues stem from the current federal system, including major
differences between the states and territories with respect to classification
matters. It is therefore clear to the committee that the National Classification
Scheme does not provide a uniform and simple classification scheme across all
jurisdictions and across all media.
12.27
For example, classification decisions under the National Classification Scheme
are made in accordance with a complex array of legislation, codes and
guidelines: the Classification Act 1995; the National Classification
Code; the Guidelines for the Classification of Publications 2005; and
the Guidelines for the Classification of Films and Computer Games. While
this framework was intended to enable a national approach to classification,[13]
some states and territories have preserved their censorship powers,
establishing their own classification decision-making procedures outside the Classification
Act 1995, and giving rise to the possibility of material having different
classifications in different jurisdictions.[14]
12.28
Further, the states and territories are responsible for the enforcement
of classification decisions made under the federal National Classification Scheme.
To this end, each jurisdiction has put in place its own requirements in
relation to the sale and display of classified material, particularly Restricted
publications and films. The committee agrees with the sentiments expressed by
the National Film and Sound Archive that the word 'daunting' does not even
begin to describe the variety of requirements that a person can be confronted
with when attempting to comply with the different considerations across the
various jurisdictions.[15]
12.29
For these reasons, and after adoption of the fundamental reforming
principles outlined earlier in this chapter, the committee proposes that a
number of changes are required to the existing classification framework in Australia
to achieve proper uniformity across all jurisdictions.
Constitutional issues
12.30
One of the barriers to uniformity and consistency of the classification
system is the federal/state divide with respect to responsibilities in this
area. The availability of X18+ films in the ACT and the Northern Territory is
an example of the negative implications of the states and territories having
responsibility for the enforcement of classification decisions. Films
classified X18+ continue to be sold in the ACT and parts of the Northern
Territory, despite numerous studies linking exposure to pornographic material
contained in X18+ films to the sexual abuse of children. This is particularly
disturbing given the situation in the Northern Territory where the Australian
Government has legislated to prohibit the possession and supply of X18+ films
in prescribed areas, and yet just outside the prescribed areas X18+ films are
legally available.
12.31
The committee sought advice from witnesses as to the constitutional
heads of power that might be used in order for the Australian Government to
legislate for a truly national classification scheme. The Attorney-General's
Department (Department) advised that the following powers would be relevant:
-
trade and commerce power (section 51(i));
-
corporations power (section 51(xx));
-
communications power (section 51(v)); and
-
territories power (section 122).
12.32
The committee also sought advice from officers of the Department as to
whether the external affairs power (section 51(xxix) of the Constitution) might
be used in this context. Officers of the Department indicated that the scope of
the power is unclear:
Most of the international conventions are about freedom of
speech, particularly, for example, the International Covenant on Civil and
Political Rights. They are about freedom of speech, so there are interesting
issues about that.[16]
12.33
The committee notes the advice of the Department that it is not aware of
any specific or relevant treaties which may be applicable to the use of the
external affairs power in support of the implementation of Commonwealth
classification law.[17]
12.34
The Arts Law Centre of Australia referred to the possibility of the states
and territories referring their powers in this area to the Commonwealth.[18]
The Australian Christian Lobby (ACL) highlighted the need for constitutional
heads of power issues to be addressed, otherwise 'we are going to continue to
go around and around the mountain on this issue'.[19]
12.35
The committee agrees that this is an area that needs further action
immediately. The committee recommends that the Australian Government take a
leadership role through the Standing Committee of Attorneys-General in
requesting the referral of powers in this area by states and territories to the
Australian Government to enable it to legislate for a truly national
classification scheme.
12.36
In the event that the Australian Government is not able to negotiate a
satisfactory transfer of powers by all states and territories within the next 12
months, the committee recommends that the Australian Government prepare options
for the expansion of the Australian Government's power to legislate for a new
national classification scheme.
Inadequacy of enforcement powers
12.37
Aside from considerations of constitutional issues, several aspects of
the enforcement system require urgent attention.
12.38
In addition to exercising enforcement powers with respect to the sale
and display of classified material, state and territory law enforcement
agencies are responsible for law enforcement actions regarding classification
matters. This is a particularly disjointed and fractured arrangement of the so-called
'cooperative scheme', and one of the clear failings of the National
Classification Scheme is the disregard which is shown for call-in notices
issued by the Director of the Classification Board.
12.39
No systematic process exists by which the Commonwealth can pursue
matters it has referred to state and territory law enforcement agencies. The
committee heard from the Director of the Classification Board that the pursuit
of classification matters 'really comes down to the priorities that the states
and territories place on this'.[20]
Some information about what occurs as a result of referrals is available to the
Attorney-General's Department. However, this is provided in an ad-hoc manner
and officers of the Department admitted that it is difficult to match
information in inquiries received from state and territory law enforcement
agencies to a precise referral.[21]
Establishment of national standards
12.40
In the committee's view, the differing requirements between states and
territories as to how classified material can be sold, hired, exhibited,
advertised and demonstrated adds an unnecessary layer of complexity to the
National Classification Scheme. Further, current legislative provisions in many
states and territories means that Restricted material can be displayed in areas
where children are able to see and access it. Appropriate measures need to be
put in place immediately to ensure that children are protected from exposure to
this type of material.
12.41
In the committee's view, the establishment of national standards for the
display of Restricted publications and films will assist state and territory
enforcement agencies to prioritise classification actions. In support of this,
the committee notes the comments of the Classification Board in its preliminary
observations to the ALRC's current review of the National Classification Scheme:
[F]or example, [if] legislation around the availability of
X18+ was made uniform nationally, Refused Classification items may become a
clearer priority for law enforcement agencies.[22]
Need for cross-jurisdictional
information-sharing
12.42
Another area of the enforcement system which the committee believes is
in dire need of improvement is the lack of information-sharing between the
Commonwealth and the states and territories in relation to referral of breaches
of the Classification Act 1995.
12.43
The committee notes that the Classification Enforcement Forum is
considering the establishment of a cross-jurisdictional information-sharing
arrangement as a means of improving compliance with classification laws.
However, in the committee's view, not enough is being done at the present time
to expedite the establishment of a data-sharing network. A centralised database
for tracking referrals by the Commonwealth to the states and territories and
other classification enforcement actions is required as a matter of urgency.
Enhanced capacity for
Classification Liaison Scheme
12.44
Currently the Classification Liaison Scheme has four officers and has
the primary functions of educating industry about classification and assessing
compliance with classification laws. In the committee's view, the resourcing of
the Classification Liaison Scheme is woefully inadequate for the job for which
it is tasked. Due to the lack of resourcing for the Classification Liaison
Scheme, it has fallen to private citizens to draw to the attention of the
Classification Board examples of non-compliance with the classification system.
This situation is neither desirable nor sustainable. What is required is a
commitment by the Australian Government to adequately fund and resource the
Classification Liaison Scheme. An increase to the size and commensurate funding
of the Classification Liaison Scheme must be made as a matter of urgency.
12.45
The committee believes that increasing the resources and funding of the
Classification Liaison Scheme will enable it to conduct an increased number of
compliance checks and audits on premises. For example, the committee notes
concerns expressed during the inquiry in relation to the operation of serial
classification declarations. The committee understands that the Classification
Board has processes in place to monitor the material being made available under
serial classification declarations: for example, compliance checking of
publications; auditing of publications on receipt of a complaint; and a
reduction in the declaration period. However, the committee believes these
steps are insufficient to address the problems highlighted in the evidence it
received during this inquiry. The committee believes that serial classification
declarations are one aspect of the National Classification Scheme which could
be subject to increased compliance and audit checking.
12.46
The committee also believes that the Classification Liaison Scheme
requires a greater presence in all states and territories. Therefore, the
committee recommends that the Classification Liaison Scheme have at least one
representative in each state and territory. Further, the committee recommends
that the Classification Liaison Scheme should be charged with responsibility
for establishing and maintaining the database of information pertaining to classification
enforcement actions, as described above.
12.47
Additionally, enforcement actions for failure to respond to call-in
notices issued by the Director of the Classification Board should be made a
priority for the Classification Liaison Scheme in providing assistance to state
and territory law enforcement agencies. The committee recommends that the
Australian Government should, through the Standing Committee of
Attorneys-General, signal its intention to make enforcement actions for failing
to respond to call-in notices a matter of priority.
12.48
In line with the expanded role and funding for the Classification
Liaison Scheme, the committee considers that the reporting requirements for the
Classification Liaison Scheme need to be strengthened. The committee recommends
that more detailed information should be required to be included in the
Attorney-General's Annual Report with respect to the operations of the
Classification Liaison Scheme.
Platform neutrality: expanding the National Classification Scheme
12.49
In addition to achieving uniformity of the classification framework
across Australia, the committee is strongly of the view that a uniform approach
to the same or similar content is required, regardless of the medium of
delivery. The committee is concerned that substantial categories of media fall
outside the National Classification Scheme, particularly media which either
appeals to children and young people (such as music videos on television), or
media which cannot be avoided by children (such as billboards and outdoor
advertising).
12.50
In its submission, Screen Australia summarised the benefits of a uniform
classification system, particularly noting the benefits in a converged media
environment:
A uniform classification approach would provide certainty for
the industry and avoid variable classifications that can affect the commercial
prospects of film and television projects...
In a converged environment, where content will not be
confined to a single delivery platform but will instead be accessible on a
range of platforms, including online, it would be of great benefit for there to
be a consistent standard applied to the content itself rather than platform on
which it is transmitted.[23]
12.51
In general, the committee accepts that the equal treatment of content,
regardless of the platform used to access that content, should be a guiding
principle of a reformed National Classification Scheme. However, the nature of
the digital world – specifically its size and the lack of online borders –
makes this difficult in practice. Nevertheless, the committee endorses reforms
to the National Classification Scheme that would harmonise the classification
of content across mediums, to the extent possible.
Expanding the National
Classification Scheme's scope
12.52
The current situation, where the National Classification Scheme is loosely
paralleled by co-regulatory and self-regulatory systems, is far from adequate,
particularly given the increasing convergence of media. A number of witnesses
questioned the ability of industries to adequately reflect community standards,
while also noting that industry assessors may come to different opinions to the
Classification Board.
12.53
The committee is aware that the exclusion of key media industries from
the National Classification Scheme, and confusion over the status of online
content, results in a lack of uniformity in content classification. For this
reason, the committee proposes an expansion of particular elements of the
National Classification Scheme to cover all mediums, including broadcast and
subscription television, radio, recorded music and advertising. This expansion
would result in harmonised standards, consumer advice and oversight by the
Classification Board.
Reform of television, radio,
recorded music and advertising regulation
12.54
Under the committee's proposed extension, classification standards in
industry codes of practice would be required to imitate the classification
principles and requirements of the National Classification Scheme, including
the National Classification Code, relevant provisions in the Classification
Act 1995 and the relevant guidelines. This could potentially be achieved by
incorporation of the principles of the National Classification Scheme by
reference, if not already done so. The adoption of these measures by industry
should be legally enforceable and subject to sanctions.
12.55
This would have varying effects depending on the industry, as many codes
of practice are already tied to the National Classification Scheme in a number
of ways. The advertising industry would be most affected because advertising
codes of practice are not currently directly linked to the National
Classification Scheme principles.
Industry self-assessment
12.56
Under the committee's proposal, industry participants who are currently
subject to industry codes of practice would continue to self-assess their own
content. However, this ability would come with enhanced responsibility.
12.57
The committee's view is that industry bodies wishing to exercise
classification decision-making functions will need to be accredited by
government. In order to be accredited, industry bodies must employ in-house
classifiers, trained by the Classification Board. Industry bodies will also
serve a probationary period of accreditation, in which all decisions will be
subject to review to ensure that the classification decisions are made in
accordance with the legislative framework. Subsequent to serving this
probationary period, an organisation will be subject to an annual audit of
decisions. Continuing accreditation as a classification decision-making body
will be dependent on an organisation passing this audit process.
12.58
The committee considers that the Classification Liaison Scheme is
well-placed to provide education and support to industry in this regard,
particularly if it is given more resources as suggested above.
12.59
Further, the committee recommends that incorrect classifications by
industry assessors in the television, recorded music and advertising industries
should be subject to substantial monetary fines, payable by the organisation
publicly displaying the content. Under the current system, there is not enough
incentive for industries to abide by even their own codes of practice. To
prevent industry participants from attempting to 'push the envelope', the
committee recommends that transgressions of classification requirements must be
punishable by such monetary fines. This punitive system could involve a 'three-strike'
system or other such mitigating scheme design in order to function equitably.
Online content
12.60
As noted above, the committee would prefer that the National Classification
Scheme treat all content equally, regardless of the means used to access it.
However, the scale and borderless nature of the internet complicates the
practicality of this preferred approach.
12.61
Two factors significantly complicate the application of the National
Classification Scheme to online content: first, the distinction between
overseas- and Australian-hosted content; and, second, the sheer volume of
material provided on the internet by small scale and non-commercial publishers,
including private citizens, who may not be covered by industry codes.
12.62
In principle, the committee believes that effective classification of
online content will most likely involve:
-
a focus on self-assessment;
-
adequate systems to deal with overseas-hosted content;
-
an effective complaints mechanism; and
-
education of industry participants.
12.63
The committee did not receive enough evidence to make specific findings
on this issue. However, this will be an important matter for the Australian Law
Reform Commission's (ALRC) National Classification Scheme Review and the Australian
Government Convergence Review to address in their current inquiries.
Consistency of ratings and consumer
advice
12.64
The committee also notes that the Director of the Classification Board
supported the suggestion by one witness of consistent ratings and consumer
advice as a 'really fine ideal'.[24]
12.65
The Classification Board provided the committee with a very informative
research paper in this regard by Dr Jeff Brand from Bond University: A
comparative analysis of ratings, classification and censorship in selected
countries around the world (the Brand Paper).[25]
While dated, the Brand Paper does provide some excellent recommendations in
terms of unifying classification regimes:
...[P]rocedural matters, markings, advertising, review
processes and so on could be more unified and therefore streamlined to assist
both consumers and content distributors.[26]
12.66
The committee considers that, in order to assist in achieving
consistency, the National Classification Scheme's categories, principles,
labelling, markings and warnings should be extended across all mediums in the
form of recognisable classification symbols.
New roles for the Classification
Board and Classification Review Board
12.67
The committee proposes to retain the Classification Board in its current
role. In addition, the Classification Board should, as noted above, be responsible
for providing training to industry classification bodies.
12.68
The committee proposes that the Classification Review Board serve as a
review body for industry body classification decisions as well as
Classification Board decisions. Review of a decision by an industry body or by
the Classification Board or the Classification Review Board should be instigated
by those people who can currently apply to the Classification Review Board for
decisions.[27]
Further, the committee proposes that the Classification Review Board should, on
its own motion, be able to review the classification decisions of an accredited
industry body.
12.69
Membership of the Classification Board and the Classification Review
Board should continue to be in accordance with the provisions which currently exist
in the Classification Act 1995.[28]
However, the committee is concerned that, under current provisions, the
appointment period for up to seven years is too long. The committee would
prefer to see more regular, staggered turnover of board membership. For this
reason, the committee recommends that terms of appointment should be for a maximum
period of five years, with no option for reappointment.
Complaints-handling
12.70
In the committee's view, improved complaints-handling processes must be
established across the National Classification Scheme, and across the
co-regulatory and self-regulatory regimes.
12.71
Consumers need to be provided with clear information about how to make
complaints in relation to classification matters. In order to make a complaint,
a consumer should not be required to have a detailed knowledge of the
classification system, along with the role of the various bodies involved in
classification and their associated responsibilities.[29]
12.72
To this end, the committee notes the recommendation in the Senate ECA Committee's
2008 report, Sexualisation of children in contemporary media, for a
complaints clearinghouse to be established for the advertising and commercial
television industries.[30]
12.73
The committee endorses that proposal and itself recommends that the
Australian Government establish a 'Classification Complaints' clearinghouse
where complaints in relation to matters of classification can be directed. The
clearinghouse would be responsible for:
-
receiving complaints and forwarding them to the appropriate
industry body for consideration;
-
advising complainants that their complaint has been forwarded to
a particular organisation for consideration; and
-
giving complainants direct contact details and an outline of the
processes of the organisation to which the complaint has been forwarded.
Complaints in self-assessing
industries
12.74
Subject to the development of the clearinghouse, the introduction of
content assessment accreditation and a monetary fine, the current complaints
procedure for industries covered by a code of practice would remain largely in
place.
12.75
Complaints in relation to classification decisions by an accredited
industry body should, in the first instance, be directed to the relevant industry
body to review and address. However, to ensure consistency across the National
Classification Scheme, the committee recommends that the final point of appeal
for classification decisions would be the Classification Review Board.
12.76
For example, community members disagreeing with a classification
decision of the Advertising Standards Board would be able to ultimately appeal
that decision to the Classification Review Board to ensure harmonisation of the
overall scheme.
12.77
The committee is aware that a system in which the Classification Board is
responsible for all classification would be ideal. However, the volume of
content requiring classification is likely to preclude this possibility. For that
reason, the committee has sought to provide a practical solution by ensuring
that one body, in the form of the Classification Review Board, is the final
arbiter of classification decisions in Australia.
ALRC's National Classification Scheme
Review
12.78
Finally, the committee recognises that the Australian Government has
tasked the ALRC with conducting a review of the National Classification Scheme.
The committee recommends that the Attorney-General specifically direct the ALRC
to consider, as part of its inquiry, all findings, proposals and
recommendations put forward in this committee's report.
Recommendation 1
12.79
The committee recommends that an express statement should be included in
the National Classification Code which clarifies that the key principles to be
applied to classification decisions must be given equal consideration and must
be appropriately balanced against one another in all cases. Currently, these
principles are:
-
adults should be able to read, hear and see what they want;
-
minors should be protected from material likely to harm or
disturb them;
-
everyone should be protected from exposure to unsolicited
material that they find offensive;
-
community concerns should be taken into account in relation to:
-
depictions that condone or incite violence, particularly sexual
violence; and
-
the portrayal of persons in a demeaning manner.
Recommendation 2
12.80
Further to Recommendation 1, the committee recommends that the fourth
key principle in the National Classification Code should be expanded
to take into account community concerns about the sexualisation of society, and
the objectification of women.
Recommendation 3
12.81
The committee notes that there has been no further consideration by the
Senate of the Senate Environment, Communications and the Arts Committee's 2008 report, Sexualisation of children in the contemporary media. The committee recommends
that the Senate should, as a matter of urgency, establish an inquiry to
consider the progress made by industry bodies and others in addressing the
issue of sexualisation of children in the contemporary media; and,
specifically, the progress which has been made in consideration and
implementation of the recommendations made in the Sexualisation of children
in the contemporary media report.
Recommendation 4
12.82
The committee recommends that the Guidelines for the Classification
of Films and Computer Games and the Guidelines for the Classification of
Publications 2005 should be revised so that the preamble to both sets of
guidelines expressly states that the methodology and manner of decision-making
should be based on a strict interpretation of the words in the respective
guidelines.
Recommendation 5
12.83
The committee recommends that the emphasis on context and the assessment
of impact should be removed as principles underlying the use and application of
the Guidelines for the Classification of Films and Computer Games.
Recommendation 6
12.84
The committee recommends that the Australian Government introduce Standing
Community Assessment Panels to assist in the determination of community
standards for the purpose of classification decision-making.
Recommendation 7
12.85
The committee recommends that the classification of artworks should be
exempt from application fees.
Recommendation 8
12.86
The committee recommends that the Australian Government, through the
Standing Committee of Attorneys-General, pursue with relevant states the
removal of the artistic merit defence for the offences of production,
dissemination and possession of child pornography.
Recommendation 9
12.87
The committee recommends that provision be made in the Classification
Act 1995 for an exemption for cultural institutions, including the National
Film and Sound Archive, to allow them to exhibit unclassified films. This
exemption should be subject to relevant institutions self-classifying the
material they exhibit and the Classification Review Board providing oversight
of any decisions in that regard.
Recommendation 10
12.88
The committee recommends that the Australian Government take a
leadership role through the Standing Committee of Attorneys-General in
requesting the referral of relevant powers by states and territories to the
Australian Government to enable it to legislate for a truly national
classification scheme.
Recommendation 11
12.89
In the event that a satisfactory transfer of powers by all states and
territories is not able to be negotiated within the next 12 months, the
committee recommends that the Australian Government prepare options for the
expansion of the Australian Government's power to legislate for a new national
classification scheme.
Recommendation 12
12.90
The committee recommends that, as a matter of priority, the Standing
Committee of Attorneys-General should consider the development of uniform standards
for the display and sale of material with a Restricted classification.
Recommendation 13
12.91
The committee recommends that:
-
Category 1 and 2 Restricted publications, and R18+ films, where
displayed and sold in general retail outlets, should only be available in a
separate, secure area which cannot be accessed by children; and
-
the exhibition, sale, possession and supply of X18+ films should
be prohibited in all Australian jurisdictions.
Recommendation 14
12.92
The committee recommends that, as a matter of priority, the Commonwealth
and the states and territories should establish a centralised database to
provide for information-sharing on classification enforcement actions.
Recommendation 15
12.93
The committee recommends that the Classification Liaison Scheme should
substantially increase its compliance and audit-checking activities in relation
to, for example, compliance with serial classification declaration requirements.
Recommendation 16
12.94
The committee recommends that the Classification Liaison Scheme should
have at least one representative in each state and territory.
Recommendation 17
12.95
The committee recommends that the Classification Liaison Scheme should
be charged with responsibility for establishing and maintaining the centralised
database to provide for information-sharing on classification enforcement
actions, as proposed in Recommendation 14.
Recommendation 18
12.96
The committee recommends that the Classification Liaison Scheme should provide
assistance to state and territory law enforcement agencies in relation to
enforcement actions for failure to respond to call-in notices issued by the
Director of the Classification Board.
Recommendation 19
12.97
The committee recommends that more detailed information should be
included in the Attorney-General's annual report about the operations of the
Classification Liaison Scheme.
Recommendation 20
12.98
The committee recommends that the Australian Government should increase
the size of, and commensurate funding to, the Classification Liaison Scheme as
a matter of priority.
Recommendation 21
12.99
The committee recommends that the Australian Government should, through
the Standing Committee of Attorneys-General, signal its intention to make
enforcement actions for failing to respond to call-in notices a matter of
priority.
Recommendation 22
12.100 The committee
recommends that, to the extent possible, the National Classification Scheme
should apply equally to all content, regardless of the medium of delivery.
Recommendation 23
12.101 The committee
recommends that industry codes of practice under current self-regulatory and
co-regulatory schemes, including those under the Broadcasting Services Act
1992, the ARIA/AMRA Labelling Code and the advertising industry, should be
required to incorporate the classification principles, categories, content,
labelling, markings and warnings of the National Classification Scheme. The
adoption of these measures by industry should be legally enforceable and
subject to sanctions.
Recommendation 24
12.102 The committee
recommends that industry bodies wishing to exercise classification
decision-making functions should be required to be accredited by the Australian
Government.
Recommendation 25
12.103 The committee
recommends that the Classification Board should be responsible for the
development of a content assessor's accreditation, including formalised
training courses for all industries covered under the National Classification
Scheme.
Recommendation 26
12.104 The committee
recommends that the accreditation of content assessors should be subject to
disqualification as a result of poor performance.
Recommendation 27
12.105 The committee
recommends that transgressions of classification requirements within codes of
practice by industry participants should, if verified by the Classification
Board, be punishable by substantial monetary fines.
Recommendation 28
12.106 The committee
recommends that the terms of appointment for members of the Classification
Board and the Classification Review Board should be for a maximum period of
five years, with no option for reappointment.
Recommendation 29
12.107 The committee
recommends that the Australian Government should establish a 'Classification
Complaints' clearinghouse where complaints in relation to matters of
classification can be directed. The clearinghouse would be responsible for:
-
receiving complaints and forwarding them to the appropriate body
for consideration;
-
advising complainants that their complaint has been forwarded to
a particular organisation for consideration; and
-
giving complainants direct contact details and an outline of the
processes of the organisation to which the complaint has been forwarded.
Recommendation 30
12.108 The committee
recommends that the Attorney-General should specifically direct the ALRC to
consider, as part of its current review of the National Classification Scheme, all
the findings, proposals and recommendations put forward in this report.
Senator Guy
Barnett
Chair
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