Presentation to Australian and New Zealand Communication Association (ANZCA) 2011 conference, University of Waikato, Hamilton, New Zealand, 6-8 July, 2011

1. 1 Australian National Classification Scheme ReviewProfessor Terry Flew, ALRC Lead CommissionerPresentation to ANZCA 2011 – Communication on the Edge; Shifting Boundaries and Identities,Australian and New Zealand Communication Association Annual Conference, Hamilton, New Zealand, 6-8 July, 2011

2. 2 The Inquiry Announced by Attorney-General of Australia, Hon. Robert McClelland MP, in March 2011 Undertaken by Australian Law Reform Commission as an independent federal agency, responsible to the Federal parliament and part of the Attorney-General's portfolio To be completed by end-January 2012

3. 3 Terms of Reference 20 years since last comprehensive review of Censorship and Classification, undertaken by ALRC (1991) Rapid pace of technological change and community uptake of new media technologies Community needs and expectations in an evolving technological environment Need to improve classification information available to the community and understanding of what content is regulated and why Desirability of strong Australian digital content and distribution industries, and need to reduce regulatory burden Impact of media on children and increased exposure of children to a wider range of media Size of industries that generate potentially classifiable content, and their potential for growth Convergence Review being undertaken through DBCDE (also to report in early 2012) Statutory review of Schedule 7 of Broadcasting Services Act 1992 – classification of online content

4. Review timeline 4

5. So what is the National Classification Scheme? 5

6. A threshold question: incremental change or root-and-branch reform? 6 "Australia's media content regulation system is like a bowl of spaghetti that's been put to the back of the fridge and gets dragged out every five years, reheated with additional sauce, partly eaten and then put back in the fridge for later. It's complex, tangled and from a media user point of view its impossible to tell which bit of media content connects to which regulatory framework". Professor Catharine Lumby, statement at launch of “The Adaptive Moment: A Fresh Approach to Convergent Media in Australia”, K. Crawford and C. Lumby, Journalism and Media Research Centre, University of New South Wales, 5 May 2011.

7. Valued elements of the current framework 1995 reforms simplified the administration of classification procedures nationally Classification board and Classification Review Board are independent statutory bodies, separate from government, industry and each other Current classification standards are well understood in the community Co-regulatory framework for broadcasting is generally accepted by the community, and strongly supported by industry 7

8. Problems with the current framework Technological changes (72% of households have broadband connections; 90% by 2014) Media convergence blurs legislative distinctions New products and services whose regulatory status is uncertain (e.g. mobile apps) New means of accessing content (e.g. games moving online) Exponential growth in online investigations Absence of R18+ classification for games (58,000 submissions to AG’s advisory 2010 – 98% favoured a new classification) Globalisation of content hosting Shift in media producer/consumer relationship with user-created content 8

9. Why classify and regulate content? Prima facie classification implies that nothing is banned only restricted if necessary. Classification has certainly a more neutral flavour than the more pejorative term censorship ... Whereas censorship is suggestive of public order and idea of the public good, classification is associated with the facilitation of informed choice in a community of diverse standards. Gareth Griffith, Censorship in Australia: Regulating the Internet and Other Recent Developments—Briefing Paper No 4/02 2002 New Parliamentary Library Research Service, 3. Providing advice to consumers to inform media choices, including warnings for potentially offensive material Protecting children from harmful or disturbing content Restricting access to all Australians to certain types of content 9

10. Principles of the Classification Code 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; 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. 10

11. Differentiating forms of content regulation Distinguishing features of content Who should be responsible? Cost of classifying material Mutability of content Possible impact of material – particularly in relation to children Produced by/for individuals or corporations? Complaints-based or across-the-board approaches? 11

12. Principles of the Convergence Review communications and media services available to Australians should reflect community standards and the views and expectations of the Australian public; Australians should have access to the broadest possible range of content across platforms and services 12

13. Regulatory models Industry self-regulation (e.g. Advertising Standards Board, Recorded Music Labelling Code of Practice) Quasi-regulation (e.g. ISPs working with government on Internet filtering) Co-regulation (e.g. Broadcasting Services Act and radio and TV industries) Direct government regulation (e.g. Classification Act) 13

14. Factors in determining regulatory form 14

15. Factors in shaping regulatory forms Organisational factors Independence/perception of independence Experience and expertise Consistent decision-making Connections to local production industries Cost efficiency Speed of decision making Potential international reach Nature ofthe content to be classified Relatively straightforward or uncontentious material Sexually explicit content Content similar to already classified content Content likely to fall within advisory classifications 15

16. The question of online content Quantity of material online Vast bulk exists outside of Australia Content is dynamic and mutable People are both content users and content creators Content does not easily sit within existing categories Separation of carriage and content Difficulties in determining age of users/restricting content to adults Free speech ethos of Internet culture Vastly different laws across regulatory jurisdictions 16

17. Refused Classification (RC) Publications that: (a) describe, 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 (b) 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 (c) promote, incite or instruct in matters of crime or violence Does the current scope of RC reflect content that should be prohibited online? 17

18. Reform of the co-operative scheme S. 51 of Australian Constitution leaves classification powers ambiguous between Commonwealth, states and territories NCS is a complementary ‘non-applied’ law scheme – states and territories choose to enact complementary legislation that provides basis for enforcement Problems Different laws in different states Different laws between states and territories States and territories retain powers to classify/re-classify material Inability to get agreement between states and Commonwealth (e.g. R18+ for games on SCAG agenda since 2002) Is a new framework required (e.g. Commonwealth acquires legislative powers under corporations powers or trade and commerce powers?) 18