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Government Tables ALRC Report Of The National Classification Scheme Review In Parliament.

31 March 2012

 

 

The Australian Law Reform Commission's final report on the National Classification Scheme review recommends a new classification scheme in the context of a converged media environment.
 
How does it affect you?
 
  • If enacted, the recommendations of the Final Report, which was tabled in Parliament on 1 March 2012, would have the following beneficial impacts:
    • a new national classification scheme that applies consistent rules (and removes double handling), is technology and platform neutral, and provides clarity on the classification of online distributed films and computer games;
    • a regulatory focus on restricting access to adult content, and promoting cyber safety and protection of children across all media platforms;
    • the retention of the expertise of the Classification Board as the independent classification decision maker;
    • promotion of industry co-regulation, with government regulation more focused on content of higher community concern;
    • the reduction of the regulatory burden on the media content industries; and
    • harmonisation of classification laws across Australia.1
  • For more information about the impacts on particular industry segments, primarily content providers and internet intermediaries, please refer to the Appendix 2 of the Final Report.
 
Introduction
 
In March 2011, the Federal Attorney-General referred a review of the National Classification Scheme to the Australian Law Reform Commission (ALRC), the first review of censorship and classification since 1991. After engaging in widespread public consultation, the ALRC submitted its final report, titled Classification – Content Regulation and Convergent Media, to the Government on 28 February 2012 (the Final Report). The Final Report can be viewed on the ALRC website, under Publications.
 
The ALRC's review represents one of many current inquiries into the operation and regulation of the media in Australia. Of particular importance is the Independent Inquiry into Media and Media Regulation, chaired by the Hon. Ray Finkelstein QC (please see the AAR Focus: The Independent Media Inquiry: enforced self-regulation for media?), which was handed down on 28 February 2012, and the Convergence Review, which is due to report in March 2012. The final recommendations of the Convergence Review Committee will take into account both the Independent Media Inquiry report and the Final Report.
 
Recommendations
 
The ALRC made 57 recommendations for reform in its Final Report. These recommendations were informed by eight guiding principles, which included that classification regulation should be minimal and be directed towards the nature of the content, including the audience reach, rather than the platforms on which content is provided to consumers. The ALRC's recommendations broadly fall within seven key areas.
 
Adoption of a platform-neutral regulatory approach
 
The ALRC recommends the enactment of a Commonwealth Classification of Media Content Act (New Classification Act) that incorporates all classification obligations relating to publications, films, computer games, online and mobile content and broadcast and subscription television content currently regulated by the Classification Act (Publications, Films and Computer Games) Act 1995 and the Broadcasting Services Act 1992. The New Classification Act would adopt a platform-neutral approach and specify what content must be classified, restricted to adults or prohibited.2
 
Single regulator
 
At the heart of the proposed new classification scheme is the establishment of a single regulator with primary responsibility for regulating content. This body would assume responsibility for similar functions currently undertaken by the Classification Branch of the Australian Government Attorney-General's Department, the Director of the Classification Board, the Department of Broadband, Communications and the Digital Economy, and the Australian Communications and Media Authority.3
 
Classification to be limited to feature films, television programs and computer games
 
The ALRC proposes that feature films, television programs and computer games (where those games are likely to be classified MA 15+ or higher) made and distributed on a commercial basis and likely to have a significant Australian audience should be classified and marked. Generally, classification obligations would not apply to individuals uploading content online for non-commercial use. The classification of other content, including websites and computer games likely to be classified as G, PG or M, should remain subject to voluntary classification.4
 
Internet intermediaries (defined to include application service providers, host providers and internet access providers) would not generally be subject to such classification obligations.5 However, all content providers, including internet intermediaries, should be subject to the prohibition on the distribution of 'Prohibited' content (formally RC content).6
 
The Final Report also discusses how content subject to classification should be marked and packaged as well as the phasing out of time-zone restrictions for commercial broadcasting services.7
 
Restricting access to adult content
 
The ALRC recommends that content providers should take reasonable steps to restrict access to adult content (that is, content that is, or if classified would be, classified R 18+ or X 18+) sold, screened, provided online or otherwise distributed in Australia, irrespective of whether it is commercial or non-commercial content (although higher standards will apply to commercial content providers). The ALRC recommends that the New Classification Act should not require all adult content to be classified.8
 
Whereas the New Classification Act would be platform-neutral and outline the essential requirements for restricting access to content, the steps that are 'reasonable' to take to restrict access would be prescribed in industry codes and standards (discussed below), and would be specific to the delivery platform. For example, restricting access offline might be undertaken through packaging and provision of proof-of-age information, whereas restricting access online may require additional warnings and the implementation of a restricted access system.9
 
Co-regulatory approach
 
The New Classification Act would provide for the development and operation of industry classification codes which may relate to, among other things, the marking of classified content, methods for restricting access to certain content and methods of classifying content.10
 
Furthermore, the New Classification Act would harmonise existing classification categories and set out criteria applicable to all content. Such categories and criteria should be periodically reviewed.11
 
The ALRC envisages the introduction of authorised industry classifiers subject to the oversight of the single regulator. Authorised industry classifiers would classify content that must be classified, but is outside of the purview of the Classification Board (discussed below). Further, the ALRC recommends granting the regulator the power to deem classification decisions made under other approved systems (for example, in different jurisdictions), as having an equivalent Australian classification. Such measures would assist in the regulation of prolific amounts of content in a converged media environment.12
 
Classification Board
 
The Final Report recommends retaining the Classification Board as an independent statutory body responsible for classifying films for cinema release and computer games likely to be classified MA 15+ or above, and reviewing classification decisions.13
 
Commonwealth classification scheme
 
Primary responsibility for classification would move from the states and territories to the Commonwealth to avoid inconsistencies in offence and penalty provisions. Specifically, the Final Report recommends that the New Classification Act should be enacted by the Federal Parliament and express an intention to 'cover the field' such that the proposed new classification scheme replaces the current cooperative state and territory based legislative framework. The ALRC recognises the ongoing need for consultation with the states and territories, but did not recommend consultation being enshrined in legislation.14
 
It is envisaged that the New Classification Act would provide a range of compliance and enforcement measures, including criminal, civil and administrative penalties for failure to comply with statutory obligations, notices of the regulator, an industry code or standard, or restrictions on the distribution of content.15
 
Next steps
 
The Government will consider the recommendations of the Final Report. These recommendations will also be taken into account by the Convergence Review Committee.
 
 

For further information, please contact:

 

Ian McGill, Partner, Allens Arthur Robinson
 
Valeska Bloch, Allens Arthur Robinson
 
Maryann Muggleston,  Allens Arthur Robinson 
 

 

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