Report of Senate Inquiry into the National Classification Scheme - has the right balance been achieved?
The media coverage of the Senate inquiry into the classification scheme resulted in some interesting headlines, including the call for artworks to be classified in the same way as movies. This article looks at the Senate Committee's approach, the final report and some of its recommendations. What is most notable about the Report is the Committee's inability to come to any firm conclusions about some of the difficult issues – which is not necessarily a bad outcome for the arts in Australia.
On 23 June 2011 the Senate Legal and Constitutional Affairs References Committee ("the Committee") tabled the Report on the Review of the National Classification Scheme: achieving the right balance("the Report"). The Report has been delivered at a time when there are a significant number of inquiries taking place which in some way examine the operation and effectiveness of the censorship and classification laws in Australia. These include inquiries into the classification of computer games, the inquiry into billboard advertising, the review of the Refused Classification category, the Joint Select Committee on cyber safety and the most recently announced review by the Australian Law Reform Commission into the National Classification Scheme (NCS). The Arts Law Centre of Australia ("Arts Law") made a submission to the Senate inquiry,[i] gave evidence and supplemented our evidence with responses to questions on notice.
The Senate Committee's inquiry was chaired by the former Liberal Senator for Tasmania Guy Barnett. The terms of reference were a grab bag of issues, listing 15 specific concerns including the following which were most likely to affect the arts:
(e) application of the NCS to works of art and the role of artistic merit in classification decisions;
(g) the classification of films, including explicit sex or scenes of torture and degradation, sexual violence and nudity as R18+;
(i) the application of the NCS to music videos; the effectiveness of ARIA/AMRA Labelling Code of Practice for Recorded Music Product Containing Potentially Offensive Lyrics and/or Themes;
(j) the effectiveness of the NCS in preventing the sexualisation of children and the objectification of women in all media including advertising;
(l) the interaction between the NCS and the role of the Australian Communications and Media Authority ("ACMA") in supervising broadcasting standards for television and internet content; and
(m) the effectiveness of the NCS in dealing with new technologies and new media, including mobile phone applications, which have the capacity to deliver content to children, young people and adults.[ii]
To a large extent the Senate inquiry was a response to 'community concerns' about a range of issues such as availability of restricted publications, sexualisation of children and concerns about the lack of enforcement of classification laws. The inquiry also recognised that it had been 15 years since the NCS was introduced and that over that time there have been huge changes in technology, with the increasing convergence of media raising the question of whether the classification system was being applied to media in a consistent and comprehensive manner.
The Report states that the Committee undertook a comprehensive review of the NCS, looking at its effectiveness in balancing competing principles of protecting children from material that is likely to harm them; protecting the community from exposure to offensive unsolicited material; and the principle that adults should be being able to read, see and hear what they want. The Committee also considered whether the NCS should be expanded to apply to all media.
This inquiry appears to have slipped under the radar of many arts organisations with Arts Law and the National Association for the Visual Arts ("NAVA") being the only arts organisations to make written submissions (compared to 15 organisations with religious or child protection mandates)[iii]. There were submissions made by some industry bodies such as the joint submission from the Australian Recording Industry Association ("ARIA") and the Australian Music Retailers Association ("AMRA"), and Government agencies such as Screen Australia, SBS and the ABC. It should be noted before examining the Report's findings, that the two Australian Labor Party members of the committee, Senator Trish Crossin and Senator Mark Furner dissented, acknowledging the need for the NCS to be reviewed but preferring a comprehensive review, involving widespread consultation with community and industry, to be carried out by the Australian Law Reform Commission.
National Classification Scheme and other forms of content regulation
The Report provides a good overview of the operation of the NCS and the Classification (Publications, Films and Computer Games) Act 1995 ("the Act")and how the various other schemes work in conjunction with it. In summary, the current NCS applies to films, publications, and computer games which are classified to various extents by the Classification Board. Artworks can be considered under the NCS if they include moving image art (required to be classified as film) or if the content is sufficiently challenging that it is required to be classified as a 'submittable publication'.[iv] Content transmitted over the internet or by mobile phones is regulated under the Broadcasting Services Act 1992 ("BSA") and is administered by ACMA. Rather than classifying content ACMA investigates complaints, encourages the development of industry codes and monitors compliance with such codes. ACMA refers complaints and online content which it considers likely to be refused classification to the Classification Board for classification. ACMA can then direct content to be removed and have websites with prohibited content blocked. Television and radio content are dealt with under the BSA and involve co-regulatory schemes whereby the industry develops codes of conduct in consultation with ACMA. Recorded music is classified under a self-regulation scheme administered by ARIA/AMRA. The advertising industry, including billboard advertising, is subject to a self-regulation scheme whereby complaints are investigated by the Advertising Standards Board.
Findings and recommendations
Overall the Committee concluded that the NCS is flawed and cannot be sustained in its current form, primarily because the scheme has not been successful in achieving a uniform and consistent approach to classification in Australia. It recommends major reforms to the current scheme in order to provide better classification decision-making and to ensure 'community standards' are given proper regard.
The committee formed the view that there needed to be an express statement that the current four principles which set out the objectives of the NCS should be applied equally and balanced against each other (Recommendation1). The current 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
- portrayal of persons in a demeaning manner.
The committee looked at the issue of sexualisation of children and objectification of women. The Report's treatment of the issue lacked the balanced approach taken in the 2008 Senate Environment Communications and the Arts Committee (SEC Committee) inquiry on the sexualisation of children in the media[v] relying instead on significant anecdotal evidence rather than hard research on the harms caused to women and children[vi]. The Report also ignored the fact that the SEC Committee considered the NCS and other forms of regulation and found that it was unnecessary to adopt a more intrusive approach at this stage. The SEC Report stated:
1.17 Throughout this report the committee has made a number of recommendations and suggestions whose object is to assist parents in managing the influences to which their children are exposed, to assist children in dealing with these influences. It is also the primary responsibility of parents to make decisions about what their children see, hear, read or purchase. These parental decisions can have a significant impact on the market for sexualising products and services.
1.18The committee believes that the producers of this material, whether broadcasters, publishers, advertisers, retailers or manufacturers, must give serious consideration to the quality of the products that they put before children and the potential for harm that they may embody. Much of the media is subject to self-regulatory or co-regulatory regimes to meet standards either required by law or developed in codes of practice. It is important that these regimes prove themselves to be responsive to legitimate community concerns and developing research in the area of child development.
1.19 The committee believes that this is the appropriate position to take at this stage. The committee notes that some in the community would like to see more intrusive regulation of these products and services. Before proposing a more regulatory approach, the committee believes that the onus is now on broadcasters, publishers, advertisers, retailers and manufacturers to address community concerns.[vii]
Despite this, the Report includes a specific recommendation that the principles underlying classification decisions be expanded to take into account community concerns about the sexualisation of society (despite all the discussion in the Report about children) and the objectification of women (Recommendation 2).
Need for Uniformity
One of the main themes in the Report is need to achieve uniformity and consistency with regards to classification. The Report highlights two aspects of uniformity, the first being across jurisdictions and secondly, uniformity in decision-making processes and treatment of content. The Committee has a strong view is that the same approach should be taken to the classification of content regardless of the medium of delivery and expresses concern that substantial categories of media fall outside the NCS (eg. music videos on television, games played online and mobile phone applications.) The Report then fails to grapple with how this could be achieved, stating at 12.51:
However, the nature of the digital world – specifically the size and 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.
The Committee also examined the various co-regulation and self-regulation schemes for classification of content. It endorsed the continuation of this approach but on the condition that these schemes, including their codes of conduct, imitate the NCS. This means that the principles of the NCS, the Classification Code and Classification Guidelines should all apply to broadcast and subscription television, radio, recorded music and advertising, and should be legally enforceable and subject to sanctions (Recommendation22). Interestingly, artworks are not specifically included in the expanded approach although are probably there by implication in as far as the current NCS applies to artworks (see below).[viii]
Arts Law supports the call for both:
· a uniform approach to classification throughout Australia which would certainly make it much simpler for Australia's creators to have to comply with only one set of standards no matter which state or territory one is in; and
· a classification system which takes the same approach to the same content regardless of platform.
However, Arts Law does not support the call for a broadening of the scope of content that should fall within the classification/censorship regime. This is especially the case for work displayed in gallery spaces, given the type of content, the venues which are only attended by choice, and the niche audiences for such most artwork. Arts Law also does not support a further tightening of current systems of self-regulation. Instead, Arts Law would propose that in the digital age the only realistic approach to classification is to rely to a much greater extent on self-classification schemes and to ban only that content which is actually illegal to create, possess and disseminate in Australia (eg. child pornography).
Classification of Artworks
Despite the media hype, the Committee did not recommend the classification of all artworks by the Classification Board. Fundamentally their approach appears to be "business as usual" but encourages artists to take a responsible self-censorship approach, at 12.22:
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.
To this end, the Report notes that the cost of classification of artworks is problematic for artists and recommends that classification of artworks should be exempt from classification fees (Recommendation 7).
Artistic Merit in classification decisions
Artistic merit is a factor that the Classification Board takes into consideration in classification decisions pursuant to section 11 of the Act. Arts Law provided detailed information to the inquiry on how this factor was applied by the Classification Review Board[ix]. The only cases where it is clear that it was a significant factor in a classification decision was with regards to films such as Mysterious Skin, Salo, and 9 Songs. These are films where the challenging nature of the content may have resulted in the film being refused classification (i.e. banned) 'but for' artistic merit that justified the film being granted an R18+ rating that allows its distribution in Australia subject to strict restrictions. There are no reported instances of artistic merit being a factor in the classification of other artworks. However, this point seems to have eluded many making submissions to the inquiry. In fact, the Report itself displays this confused thinking at 12.2:
'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'.
Arts Law is not aware of a single example of an artwork on display in a public gallery or elsewhere that would be regarded as child pornography or child abuse material under the criminal laws of the Commonwealth or any state or territory. The above statement from the Report is not only inaccurate but also inflammatory and misleading as to how the child pornography laws work. In NSW, the only time in recent history when the artistic merit defence was raised in relation to a child pornography charge, the defence failed.[x]
NSW removed artistic merit as a defence for child pornography in early 2010, an amendment which was supported by Arts Law. However, NSW law still requires artistic merit to be considered along with a range of other factors in order to determine whether or not a work is child abuse material. To be clear, the production, dissemination and possession of child pornography is an offence under the criminal laws of the Commonwealth and all the States and Territories. The Report's recommendation for the removal of the artistic merit defence for child pornography offences (Recommendation 8) relates to the criminal laws and is completely unconnected with the classification scheme. Changing the artistic merit defence to child pornography charges is unlikely to have any impact on the arts community, and, if it is in similar terms to the NSW laws, would be supported by Arts Law.
Need for more objective decision-making
The Report outlines concerns raised about the subjective nature of decision-making under the NCS and the trend in recent years of content being pushed into lower classification categories. This trend was seen as out of alignment with community values - that is, material is not being classified as strictly as it should be. Much of the evidence relied upon in this regard is from the agencies representing children's interests and religious conservatives. In order to address this issue the Committee recommends the following:
· Strict interpretation of classification guidelines (Recommendation 4);
· Removal from the classification guidelines of any consideration of context and impact of material (Recommendation 5); and
· Establishment of community assessment panels (Recommendation 6).
With regards to the recommendation for the establishment of community assessment panels, it seems to simply add an unnecessary layer to the decision-making of the Classification Board. Currently the members of the Classification Board and the Classification Review Board are drawn from representatives of the community and, whilst the Report acknowledges this, there appears to be an implicit criticism that they are not really representative of the community. There is also a call to reduce the length of the appointments to the Classification Board from 7 to 5 years. Arts Law asks the question, what 'community' does the Committee want these representatives to come from, a different one to those already on the Classification Board and Review Board? It is our view that, rather than having more 'community' representatives in order to determine community standards, it would be far better to conduct high quality research on a regular basis to provide more objective information about current community standards.
Relationship of Senate Inquiry with Review of NCS by Australian Law Reform Commission (ALRC)
Prior to the Senate Committee tabling its Report, the ALRC commenced work on its reference from the Attorney General on a review of the NCS. The ALRC is undertaking a comprehensive review and the list of questions upon which it seeks feedback are indicative of the well-structured approach being taken. Arts Law welcomes this review and recognises that the ALRC will take into consideration not only the recommendations from the Senate Committee Report, but the other work currently being undertaken into classification issues.
Arts Law encourages all in the arts community, as well as anyone who does not want to see any erosion of the fundamental human right to freedom of expression, to participate in the ALRC review. The issues paper is on the ALRC website and submissions should be made by 15 July 2011. Arts Law has prepared a draft submission which is available on our website and we encourage those wanting to be involved to write their own submission, adapt or adopt ours, or just provide Arts Law with feedback so that our submission truly reflects the concerns of the arts community. It is important that the views of the arts community are properly reflected in the ALRC inquiry given the long term repercussions for freedom of expression in Australia.
Robyn Ayres is the Executive Director of the Arts Law Centre of Australia
[ii]See full list in the Terms Of Reference set out in the Report p.1
[iii]See list of submissions and witnesses to the inquiry in appendices 1 and 2 of the Report, pp191-196.
[iv]A 'submittable publication' is one that contains depictions or descriptions that:
a) are likely to cause the publication to be refused classification;
b) are likely to cause offence to a reasonable adult to the extent that the publication should not be sold or displayed as an unrestricted publication;
c) are unsuitable for a minor to see or read.
[v]2008 Report of the Senate Environment Communications and the Arts Committee (SEC Committee) Sexualisation of Children in contemporary media
[vi]Significant reliance on two reports by the Australia Institute Corporate Paedophilia Report and Letting Children be Children Report. The SEC specifically noted the shock value of a term "corporate paedophilia" achieved media attention but there was no evidence of a link between depicting children in certain poses in advertising material resulted in their sexual abuse.
[vii]See Arts Law's submission (endnote i) at p.4
[ix]See Arts Law's submission (endnote i) at pp11-13.
[x]From Preliminary submissions to CPWP: Office of the Director of Public Prosecutions (State) (2.2.09) at p. 7, reported at p. 22 (http://www.lawlink.nsw.gov.au/lawlink/clrd/ll_clrd.nsf/vwFiles/Final_Child_Pornography_Working_Party_Report_8Jan.pdf/$file/Final_Child_Pornography_Working_Party_Report_8Jan.pdf)