By Joanne Teng
In March 2011 the Australian Law Reform Commission (ALRC) undertook a review of the national classification scheme, the first review of Australia's censorship and classification laws since 1991. After a year's work including extensive public consultation, the ALRC submitted its final report Classification – Content Regulation and Convergent Media (Final Report) to federal Parliament on 1 March 2012.
The Classification Review is one of several reviews past and present examining Australia's media industry, and comes after the 2011 Senate Inquiry into the National Classification Scheme. As with the Senate Inquiry, Arts Law made several substantive submissions to the ALRC and was invited to meet and consult with the ALRC on its details. More importantly, Arts Law provided guidance to the arts community by making our draft submissions available online for stakeholders to adapt and adopt for their own.
The overall conclusion of the Final Report – which makes frequent reference to Arts Law's submissions – is what most Australians see as obvious: that Australia's current classification scheme is out-dated and does not adequately deal with the challenges of today's digital media environment. To modernise the scheme, the ALRC made 57 recommendations based on eight guiding principles aimed at providing an effective framework for the regulation of content in Australia, including the principles that Australians should be able to read, hear, see and participate in media of their choice; classification should be kept to the minimum needed to achieve a clear public purpose; and the classification regulatory framework needs to be responsive to technological change.
Broadly, Arts Law supports and commends the ALRC's findings. The recommendations for a single National Classification Scheme that is platform neutral with a single regulator is sensible and would be a vast improvement over the current patchwork of federal and state legislation that applies to the arts and media landscape. The setting of a clear scope of what must be classified namely commercial feature films, TV programs, and certain computer games likely to have a significant Australian audience, and making classification for low-impact and/or non-commercial content voluntary, is a pragmatic approach to managing the enormous volume of content now available to Australian consumers.
The push for industry to have a greater role in classification subject to regulatory oversight, is also practical. To this end the ALRC has recommended the introduction of trained industry classifiers who may be employed full-time by large content providers or engaged on a task-by-task basis. While Arts Law retains our concerns about cost burden this could impose on the arts industry, this approach would be a more efficient and cost-effective means of classifying content compared to the current system. We are pleased to note, however, that the ALRC has accepted Arts Law's specific submission that content shown at film festivals, art galleries and other cultural institutions should be exempt from classification.
The recommendation to introduce classification categories – G, PG, M, MA15+, R18+, X18, and Prohibited – to be used uniformly regardless of the type of media from films and television to books and games is an excellent step to minimise confusion. The criteria by which these would apply would also be harmonised so as to be media-neutral, meaning a TV program, book, computer game, visual artwork would be assessed the same way, rather than the current media-specific criteria. The benchmarks for such criteria would be set by the Classification Board however Arts Law would expect that any criteria for a new classification scheme would retain the need to take into account the literary, artistic or educational merit of the content.
In our submissions Arts Law put forward the view that the difficult 'Refused Classification' (RC) category was overly broad in applying to (and thus effectively banning) offensive material, and that the category should apply to illegal material only. This submission was not accepted by the ALRC which recommends that the category be renamed as 'Prohibited' so as to better reflect its nature. Arts Law is, however, encouraged by the ALRC's recommendations that the Prohibited category be framed more narrowly than the current RC category, and that government review the current prohibitions in relation to the depiction of sexual fetishes in film, 'detailed instruction in the use of proscribed drugs', and confine instructions in the matters of crime to focus on 'serious' crime. Such an approach could mean that film depictions of bondage between consenting adults would not be prohibited, and a satirical article on shoplifting could be published without the risk of censure.
The approach of the ALRC in shifting regulatory focus to restrict access to adult content (ie., R18+ and X18+ content) rather than always requiring its formal classification, is generally a good one. This recommendation would apply to all adult media content whether offline or online, including artworks and user-generated content. In our submissions to the ALRC, Arts Law noted that art galleries and other cultural institutions already present adult and potentially offensive content responsibly with appropriate measures to notify the public about the nature of the work, and may restrict access to minors. The obligation to restrict access online, although supported in principle by Arts Law, will depend on its application. It is noted by Arts Law that the ALRC does not propose that all providers of adult content be required to verify the age of people who access their content, and that the ALRC agrees that restricting access should not be prohibitively costly or burdensome or unnecessarily compromise people's privacy. Furthermore, we also note the ALRC's position that any new classification system should not make it an offence for simply publishing adult content without restricting access; rather, it should provide for an offence for failing to comply with a restrict access notice. This means if an artist displayed adult content on her website without restrictions she would not have committed an offence, but if she receives a formal notice from the classification regulator telling her to restrict access to that content and fails to comply, only then would an offence have been committed.
Overall, the Final Report of the ALRC is a comprehensive blueprint to bring Australia's classification scheme into the 12st century. The next step from here is for the Government to consider the Final Report and the recommendations, which will also be taken into account by the Convergence Review Committee in their review of Australia's media and broadcast landscape. Arts Law will follow these developments and continue to ensure that the voices of the arts community are heard in this reform.
Jo Teng is a lawyer at Arts Law