CHAPTER 3
National Classification Scheme
3.1
The historical background outlined in Chapter 2 has led to Australia's
current system of classification. The major mechanism is the National
Classification Scheme, which covers films (including videos and DVDs), computer
games and certain publications.[1]
3.2
Media not covered by the National Classification Scheme includes
audio-only recorded music, broadcast television content, outdoor advertising,
and online content in some circumstances. These media are subject to a variety
of codes of practice and other measures, and are discussed in Chapters 8, 9 and
10.
3.3
Censorship and classification in Australia are complicated by
Australia's federal system, with significant differences to enforcement taken
by each jurisdiction. While the National Classification Scheme improved upon pre-1996
existing classification mechanisms, the classification process continues to be
complex and lacking in uniformity.
National Classification Scheme
3.4
The National Classification Scheme commenced in 1996 after the
Commonwealth, and the states and territories entered into the Intergovernmental
Agreement on Censorship (Intergovernmental Agreement). The aim of the
scheme, as described in the Intergovernmental Agreement, is 'to make, on a cooperative
basis, Australia's censorship laws more uniform and simple with consequential
benefits to the public and the industry'.[2]
3.5
The Intergovernmental Agreement made clear that the National
Classification Scheme was to reflect and maintain the balance of responsibilities
that had been agreed between the Australian jurisdictions. Specifically, the
Commonwealth and the participating states are equal partners in the scheme,
with policy derived from agreement between all relevant jurisdictions.[3]
3.6
As part of the Intergovernmental Agreement, the Australian Parliament
enacted the Classification (Publications, Films and Computer Games) Act 1995
(Cth) (Classification Act 1995). Using the Commonwealth's territories
power under section 122 of the Constitution, the Classification Act
1995 sets up a classification system for the ACT,[4]
and is also intended to form part of the state and territory schemes.[5]
3.7
The Classification Act 1995 creates classification categories for
publications, films and computer games. Classification decisions are made by
the Classification Board, and can be reviewed by the Classification Review
Board. Both of these independent statutory bodies are established under the Classification
Act 1995.
3.8
The operation of the Classification Act 1995, including classification
decision-making, is supplemented by the Classification (Publications, Films and
Computer Games) Regulations 2005 (Cth), the National Classification Code and
two sets of guidelines: the Guidelines for the Classification of
Publications 2005 and the Guidelines for the Classification of Films and
Computer Games. Together, the elements of this framework provide guidance
regarding the type of content suitable for each level of classification.
3.9
The states and territories are responsible for the enforcement of
classification decisions. Each state and territory has enacted enforcement
legislation which sets out how films, publications and computer games can be
sold, hired, exhibited, advertised and demonstrated within its own
jurisdiction. There remain some differences, however, between states and
territories in this respect.
Classification Board
3.10
As noted above, the classification given to a publication, film or
computer game is a decision of the Classification Board.[6]
3.11
The Classification Board is an independent statutory authority
established under the Classification Act 1995. It consists of no
more than 30 members.[7]
These members are to be 'broadly representative of the Australian community',
but there is no other legislative requirement for any particular expertise.[8]
Under the Classification Act 1995, the Classification Board's members
are to be appointed by the Minister after consultation with the relevant state
and territory ministers. Members are not to hold office for longer than seven
years.[9]
Classification decisions can be made by a panel of members sitting as the Classification
Board, as decided by its Director.[10]
3.12
Every film and computer game has to be classified before it can be
legally made available to the public. Some publications also need to be
classified.[11]
The Classification Board may also classify advertisements for publications,
films or computer games, either on application or on its own initiative.[12]
In making classification decisions, the Classification Board applies principles
outlined in the Classification Act 1995, the National Classification
Code and relevant guidelines. Classification decisions must be made within 20
business days of an application being received.[13]
3.13
In addition, the Classification Board must determine consumer advice for
all films and computer games it classifies, other than those suitable for a
general audience (G-rated).[14]
Consumer advice is intended to help consumers to make an informed choice about
the material they, or those in their care, choose to read, view or play.[15]
All classified items must carry appropriate classification markings.[16]
Classification Review Board
3.14
The Classification Review Board reviews decisions made by the Classification
Board. It consists of between three and eight members appointed under the same
conditions as members of the Classification Board.[17]
3.15
Application for review of a decision of the Classification Board can be
made to the Classification Review Board by the Minister, the original
applicant, the publisher, or an 'aggrieved person', including an activist or
researcher, or an interested organisation.[18]
3.16
Decisions of the Classification Review Board must be made by at least
three of its members, as decided by its convenor. Classification decisions must
be made within 20 business days of receiving an application.[19]
As an independent statutory body separate from the Classification Board, the Classification
Review Board makes fresh classification decisions and provides new consumer
advice.[20]
Classification categories
3.17
The Classification Act 1995 sets out the classification
categories used by the National Classification Scheme. The content permitted in
each category is prescribed by the National Classification Code and the relevant
guidelines. A description of the type of content in each of these
classifications is included in Table 3.1 below.
Publications
3.18
Under the Classification Act 1995, publications may be classified
as:
-
Unrestricted;
-
Category 1 restricted;
-
Category 2 restricted; or
-
RC (Refused Classification).[21]
3.19
It is not compulsory to submit all publications to the Classification
Board. Publications are subject to a partially compulsory scheme, in which only
'submittable' publications must be submitted. Under the Classification Act
1995, a 'submittable' publication is:
...an unclassified publication that, having regard to section
9A or to the Code and the classification guidelines to the extent that they
relate to publications, contains depictions or descriptions that:
(a) are likely to cause the publication to be classified RC;
or
(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; or
(c) are unsuitable for a minor to see or read.[22]
3.20
Failure to submit such a publication for classification is an offence
under state and territory legislation.[23]
3.21
A special process exists for the classification of serial publications.
The Classification Board normally makes serial classification declarations to
cover issues of a serial publication for 12 months.[24]
Compliance checks are undertaken after a three-month period to determine
whether any subsequent issues fit within the declared classification.[25]
The Classification Board has a policy of auditing at least 10 per cent of
publications with serial classification declarations each year.[26]
Films
3.22
Films may be classified as:
-
G (General);
-
PG (Parental Guidance);
-
M (Mature);
-
MA15+ (Mature Accompanied);
-
R18+ (Restricted);
-
X18+ (Restricted); or
-
RC (Refused Classification).[27]
3.23
Broadly speaking, films, videos and computer games are subject to
compulsory classification before they can be exhibited, sold or hired out. Thirteen types
of film are exempt from the requirement for classification: namely, business,
accounting, professional, scientific, educational, current affairs, hobbyist,
sporting, family, live performance, musical presentation, religious, and
community or cultural films.[28]
Film festivals may also operate under exemptions available under state and
territory enforcement legislation.[29]
3.24
All films and computer games submitted for classification must be viewed
or played by members of the Classification Board, who then assign each item a
classification.[30]
Computer game classifications
3.25
Computer games may be classified as:
-
G (General);
-
PG (Parental Guidance);
-
M (Mature);
-
MA15+ (Mature Accompanied); or
-
RC (Refused Classification).[31]
3.26
Five types of computer game are exempt from the requirement for
classification: namely, business, accounting, professional, scientific and educational
games.[32]
Classification decisions
3.27
Applications to the Classification Board for classification can be made
by members of the public, usually publishers, film or game distributors.
Additionally, Commonwealth, state and territory government agencies can apply
to have material classified.[33]
3.28
The decision to classify a work within one of the categories listed
above is made by the Classification Board (or the Classification Review Board),
and is informed by principles outlined in the Classification Act 1995 itself,
the National Classification Code, the Guidelines for the Classification of
Publications 2005 and the Guidelines for the Classification of Films and
Computer Games.
Classification provisions within
the Classification Act
3.29
In addition to the National Classification Code, the Classification
Act 1995 itself also lists several matters that must be taken into account
in making a decision on the classification of a publication, film or computer
game. These are:
a) the standards of morality, decency and propriety generally
accepted by reasonable adults;
b) literary, artistic or educational merit (if any);
c) the general character of the publication, film or computer
game, including whether it is of a medical, legal or scientific character; and
d) the persons or class of persons to or amongst whom it is
published or is intended or likely to be published.[34]
3.30
In order to assist in determining the standard of morality, decency and
propriety generally accepted by reasonable adults, Community Assessment Panels
have, at times, been employed to ensure parity between Classification Board
decisions and views of representative samples of community members.[35]
3.31
Additionally, the Classification Act 1995 provides that a
publication, film or computer game that advocates terrorist acts must be
effectively banned through a refusal of classification.[36]
This does not apply if the depiction or description of a terrorist act could
reasonably be considered to be done merely as part of public discussion or
debate, or as entertainment or satire.[37]
National Classification Code
3.32 The National Classification Code states that classification
decisions are to give effect, as far as possible, to the following principles:
a)
adults should be able to read,
hear and see what they want;
b)
minors should be protected from
material likely to harm or disturb them;
c)
everyone should be protected from
exposure to unsolicited material that they find offensive;
d)
the need to take account of
community concerns about:
(i) depictions that condone or
incite violence, particularly sexual violence; and
(ii) the portrayal of persons in a
demeaning manner.[38]
3.33
Additionally, the National Classification Code describes the type of
content that will place a publication, film or computer game into a particular
category specified in the Classification Act 1995. In summary, the
categories are described in the following table:
Table 3.1: Summary of the
National Classification Code
|
Publications[39] |
|
Classification |
Content |
|
RC (Refused classification) |
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
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
promote, incite or instruct in matters of crime or
violence |
|
Category 2
restricted |
explicitly depict sexual or sexually related activity
between consenting adults in a way that is likely to cause offence to a
reasonable adult; or
depict, describe or express revolting or abhorrent
phenomena in a way that is likely to cause offence to a reasonable adult and
are unsuitable for a minor to see or read |
|
Category 1
restricted |
explicitly depict nudity, or describe or impliedly depict
sexual or sexually related activity between consenting adults, in a way that
is likely to cause offence to a reasonable adult; or
describe or express in detail violence or sexual activity
between consenting adults in a way that is likely to cause offence to a
reasonable adult; or
are unsuitable for a minor to see or read |
|
Unrestricted |
all other publications |
|
Films[40] |
|
Classification |
Content |
|
Refused Classification |
similar to publications |
|
X18+ |
contain real depictions of actual sexual activity between
consenting adults in which there is no violence, sexual violence, sexualised
violence, coercion, sexually assaultive language, or fetishes or depictions
which purposefully demean anyone involved in that activity for the enjoyment
of viewers, in a way that is likely to cause offence to a reasonable adult;
and are unsuitable for a minor to see |
|
R18+ |
not RC or X18+, but unsuitable for a minor to see |
|
MA15+ |
not RC, X18+ or R18+, but depict, express or otherwise
deal with sex, violence or coarse language in such a manner as to be
unsuitable for viewing by persons under 15 |
|
M |
do not fall into above categories, but cannot be
recommended for persons under 15 |
|
PG |
do not fall into above categories, but cannot be
recommended for persons under 15 without the guidance of their parents or
guardians |
|
G |
all other films |
|
Computer games[41] |
|
Refused Classification |
similar to publications, but also including games that are
unsuitable for a minor to see or play |
|
MA15+ |
as for films |
|
M |
as for films |
|
PG |
as for films |
|
G |
as for films |
3.34
The National Classification Code may only be amended by agreement with
all the participating states and territories.[42]
In its 1991 report, the ALRC made recommendations to the effect that changes to
the National Classification Code or the guidelines must be preceded by three
months of public comment. These recommendations have been implemented by a
requirement in the Intergovernmental Agreement that public submissions must be
taken before any amendments are made.[43]
Classification guidelines
3.35
The Classification Act 1995 also provides for the Minister to
determine guidelines to assist the Classification Board in applying the
criteria in the National Classification Code.[44]
3.36
There are two separate sets of guidelines in existence: the Guidelines
for the Classification of Publications 2005; and the Guidelines for the
Classification of Films and Computer Games.
3.37
Both guidelines explain the different classification categories, and the
scope and limits of material for each category. Three essential principles underpin
the use of the guidelines: the importance of context; assessing impact; and the
six classifiable elements. The six elements are themes, violence, sex, language,
drug use, and nudity.[45]
3.38
The Guidelines for the Classification of Films and Computer Games
provide specific criteria within each of these classifiable elements, adopting
a hierarchy of impact for each category which ranges from 'very mild' (subject
to a G classification) to 'very high' (Refused Classification).
3.39
A film may be Refused Classification under the Guidelines for the
Classification of Films and Computer Games for specific content relating to
crime or violence, sex or drug use.[46]
3.40
The Guidelines for the Classification of Publications 2005
similarly describe criteria by which material may fall within classification
categories. In considering each classifiable element, the Classification Board must
consider the impact of individual elements and their cumulative effect. Both
the content and treatment of elements contribute to the impact.[47]
The guidelines also differentiate standards for the content and cover of a
publication.[48]
According to the guidelines, a publication may be refused classification for
certain content relating to sex, crime or violence and drug use.[49]
Calling in material for
classification and reclassification
3.41
In a case where a publication, film or computer game is not submitted to
the Classification Board as required, the Director may 'call-in' the work for
classification. The publishers must then submit an application for
classification and pay the fee. The penalty for failure to comply is $2,200.[50]
3.42
Material can be reclassified after two years, at the request of the
Minister or on the initiative of the Classification Board.[51]
Classifications can also be revoked if supporting material (such as assessments
by applicants, television-series assessors or additional-content assessors)
neglected to mention classifiable elements.[52]
State and territory classification procedures
3.43
Although referred to as the National Classification Scheme, the scheme
does not apply uniformly across all jurisdictions. Four jurisdictions have
reserved censorship powers and different classification processes outside the
federal system. These are briefly set out below.[53]
Reserved censorship powers of
states and territories
Queensland
3.44
Section 4 of the Classification of Films Act 1991 (Qld) provides
for the appointment of a Films Classification Officer. Section 4 also provides
for a public service officer or police officer to be appointed as a classification
inspector. Section 5 of the Classification of Computer Games and Images Act
1995 (Qld) provides for a Computer Games Classification Officer who
can classify an unclassified computer game on their own initiative or because
of representations made to them. Section 6 of the Classification of
Publications Act 1991 (Qld) (Queensland Publications Act) provides for a
Publications Classification Officer who can classify a publication that is
unclassified under either the Queensland Publications Act, by applying the
relevant Commonwealth provisions, on their own initiative or on the grounds of
a complaint.
3.45
The committee understands that Queensland does not currently have any such
officers appointed.[54]
South Australia
3.46
The Classification (Publications, Films and Computer Games) Act 1995 (SA)
establishes the South Australian Classification Council (Council). The Council
consists of six members appointed by the Governor for a term not exceeding
three years. The Council must contain one legal practitioner, one person with
expertise relating to the psychological development of young children and
adolescents, and one person with 'wide experience in education'.
3.47
The Council can classify a publication, film or computer game of its own
initiative, or when required to do so by the Minister. Classifications are in
accordance with the National Classification Code and the guidelines, and have
an effect to the exclusion of any classification under the Classification
Act 1995.
Tasmania
3.48
Legislation in Tasmania limits the classification of material outside of
Commonwealth processes to films. Section 41A of the Classification
(Publications, Films and Computer Games) Enforcement Act 1995 (Tas) allows
the Minister to establish a review committee if the Minister considers that a
classified film unduly emphasises matters of violence or cruelty. Section 41
allows a person to apply to the Minister for a review of a classified film, if
they consider that it unduly emphasises matters of violence or cruelty. When an
application is received under section 41, the Minister must establish a review
committee.
3.49
A review committee would consist of no less than three persons who, in
the opinion of the Minister, have suitable knowledge, expertise and
qualifications to review the classification of a relevant film and make a recommendation
to the Minister.
3.50
Depending upon the recommendation of a review committee, the Minister
would either make an order prohibiting the sale and delivery of the film,
assign a higher classification to the film, or request that the review
committee reconsider its recommendation. An order assigning a classification
has effect, notwithstanding the classification assigned under the Classification
Act 1995.
3.51
The committee understands that no review committee has been established
to date under the Tasmanian legislation.[55]
Northern Territory
3.52
The Classification of Publications, Film and Computer Games Act (NT)
provides for a Publications and Films Review Board which may consist
of five members, including at least one woman, one man, one lawyer and one
person with qualifications in literature, art or education who are satisfactory
to the Minister. The Publications and Films Review Board would have the same
powers and functions as the federal Classification Board.
3.53
The Attorney-General's Department indicated to the committee that it is
not aware of the establishment of a Publications and Films Review Board, under
the Northern Territory legislation, to date.[56]
Enforcement of classification
decisions
3.54
Participating states and territories use the National Classification Scheme
to determine access to publications, films and computer games. Enforcement
legislation enacted in each jurisdiction sets out how publications, films and
computer games can be sold, hired, exhibited, advertised and demonstrated in
each state and territory. The exact restrictions vary somewhat between
jurisdictions.[57]
Publications
3.55
Unrestricted publications may be required by the Classification Board to
be sold in a sealed package. Otherwise, they are not subject to restriction.
According to its annual report, the Classification Board pays particular
attention to the covers of these publications so that everyone is protected
from unsolicited exposure to material that they may find offensive – one of the
principles of the National Classification Code.[58]
3.56
In most states and territories, Category 1 Restricted publications must
be sold in sealed packages, and must not be sold to minors.[59]
Similarly, Category 2 Restricted publications may only be sold or displayed in
opaque wrapping and in restricted-publications areas which display a prominent
sign that under-18s may not enter.[60]
3.57
In Queensland, however, neither Category 1 nor Category 2 Restricted
publications may be sold or displayed.[61]
Film classifications
3.58
State and territory enforcement legislation varies slightly but, in
general, the public exhibition of films classified MA15+ and R18+ is legally
restricted to persons of the appropriate age.[62]
3.59
X18+ films may only be sold or exhibited (in certain premises) in the
ACT and the Northern Territory.[63]
Separate provisions have applied since 2007 to Indigenous communities affected
by the Northern Territory Emergency Response, where possession of X18+ movies
or Restricted publications is subject to fines beginning at $5,500. These
provisions will expire in 2012.[64]
3.60
The sale or public exhibition of unclassified or Refused Classification
films is prohibited by state and territory enforcement legislation.[65]
Computer games
3.61
Generally, computer games (including amusement arcade games) must be
classified by the Classification Board or the Classification Review Board
before they can be sold, hired or demonstrated in Australia. [66]
3.62
Computer games classified G, PG, M or MA15+ may generally be sold, hired
or demonstrated in all states and territories.[67]
3.63
This includes games that are made for mobile phones and other mobile
devices.
Classification Liaison Scheme
3.64
As noted above, responsibility for the enforcement of the National
Classification Scheme lies with the states and territories. National
coordination is provided by the Classification Liaison Scheme (CLS), a joint
Commonwealth, state and territory government initiative aimed at improving
industry compliance with classification laws. The Attorney-General's Department
described the scheme as follows:
The CLS has an educational role and is intended to assist
retailers and distributors of publications, films (including videos and DVDs)
and computer games to comply with their legal obligations under the National
Classification Scheme. The Classification Liaison Scheme supports the work of
State and Territory police and enforcement agencies.
Under the Scheme, Classification Liaison staff visit premises
and traders in all jurisdictions and provide advice about apparent breaches,
restrictions applying to the sale or display of classified products, labelling
requirements and other related matters.
In addition, Classification Liaison staff investigate
complaints about alleged breaches of legislation and meet with traders and
industry representatives to investigate complaints through a program of site
visits in each jurisdiction. Community Liaison staff also attend industry
conferences and trade shows.[68]
3.65
In 2009–10, Classification Liaison Scheme staff conducted 895 compliance
checks across a range of restricted and non-restricted
premises in capital cities, and regional and rural centres.[69]
Enforcement applications
3.66
The Classification Act 1995 includes provision for Commonwealth, and
state and territory governments and agencies to apply to the Classification Board
for a classification for the purpose of investigating or prosecuting an
offence.[70]
3.67
The Intergovernmental Agreement also provided for each state and
territory to receive a quota of 100 free classifications or evidentiary
certificates per year, with any further requests for classifications to be
provided at half-fee, and further certificates at full-fee.
Other applications
3.68
In addition to classifying works submitted by members of the public,
including publishers and game developers, the Classification Board also deals
with referrals from the police, the Australian Customs and Border Protection
Service and the Australian Communications and Media Authority (ACMA). The Classification
Board also classifies internet sites referred by the ACMA and video content
developed for distribution over mobile phone networks.[71]
Navigation: Previous Page | Contents | Next Page