CHAPTER 2

Key issues

2.1        This chapter discusses the following key issues:

• the extent of public consultation undertaken by the Australian Government in relation to the introduction of an R 18+ (Restricted) classification category for computer games in Australia;
• the Australian Law Reform Commission's review of the National Classification Scheme;
• state and territory agreement to the introduction of an R 18+ (Restricted) classification category for computer games in Australia;
• the status of the Guidelines for the Classification of Computer Games; and
• concerns raised during the committee's inquiry relating to the proposed criteria to be assigned to the new R 18+ (Restricted) classification category.

Extent of public consultation

2.2        The question of whether to introduce an R 18+ (Restricted) classification category for computer games in Australia has been the subject of public consultation by the Attorney-General's Department (Department) for over two years.

2.3        On 14 December 2009, the Minister released a discussion paper for public comment entitled, Should the Australian National Classification Scheme include an R 18+ classification category for computer games?.[1]

2.4        When submissions closed on 28 February 2010, the Department had received 58,437 valid submissions,[2] 98 per cent of which supported the introduction of an R 18+ (Restricted) classification category for computer games.[3]

2.5        Also in 2010, the Department commissioned Galaxy Research to conduct a national telephone poll regarding community attitudes to the classification of computer games. One of the questions included in the poll was 'Should there be an R 18+ classification category for computer games in Australia'.[4]

2.6        The results of the poll were released by the Minister on 5 December 2010,[5] and showed 80 per cent of the 2,226 respondents answered in the affirmative.[6]

2.7        The majority of submissions to the committee's inquiry supported the introduction of an R 18+ (Restricted) classification category for computer games. However, some submissions were not supportive, or supported the category with certain qualifications.[7]

Review of the National Classification Scheme (NCS)

2.8        The public consultation undertaken by the Department was conducted almost in tandem with an independent review of the NCS by the Australian Law Reform Commission (ALRC).

2.9        On 24 March 2011, the former Attorney-General, the Hon. Robert McClelland MP asked the ALRC to inquire into and report on the framework for the classification of media content in Australia. One of the terms of reference concerned the classification categories contained in the Act, the Code and the Guidelines.[8]

2.10      On 1 March 2012, the ALRC's report titled Classification–Content Regulation and Convergent Media was tabled in Parliament.[9] Among its recommendations was a key proposal to create a new NCS to regulate the classification of media content, based on a new Act to be called the Classification of Media Content Act.[10]

2.11      Specifically in relation to the classification of computer games, the ALRC made the following recommendations:

Recommendation 6–2 The Classification of Media Content Act should provide that computer games that are:

(a) likely to be classified MA 15+ or higher; and

(b) likely to have a significant Australian audience; and

(c) made and distributed on a commercial basis,

should be classified before content providers sell, screen, provide online, or otherwise distribute them to the Australian public.

The Act should provide for platform-neutral definitions of 'computer game' and illustrative examples.

...

Recommendation 9–1 The Classification of Media Content Act should provide that one set of classification categories applies to all classified media content as follows: G, PG, M, MA 15+, R 18+, X 18+ and Prohibited [to replace the Refused Classification category]. Each item of media content classified under the National Classification Scheme should be assigned one of these statutory classification categories.[11]

2.12      The Attorney-General has announced that the ALRC's report will be taken into account by the Convergence Review, which is due to report by 31 March 2012.[12]

State and territory agreement

2.13      State and territory ministers responsible for censorship considered the introduction of an R 18+ (Restricted) classification category for computer games in Australia at the July 2011 meeting of the Standing Committee of Attorneys-General (now the Standing Council on Law and Justice).

2.14      At that meeting, the ministers, with the exception of the NSW Attorney‑General, agreed in principle to support the introduction of an R 18+ (Restricted) classification category for computer games.[13]

2.15      Specifically, the ministers agreed:

• in principle, that the Commonwealth introduce the proposed amendments to the Code to support the introduction of an R 18+ (Restricted) classification category, with the exception of the NSW Attorney-General who abstained;
• to take the Guidelines, as amended at the meeting, to their respective Cabinets;
• to commence drafting amendments to their enforcement legislation to reflect the introduction of an R 18 + (Restricted) classification category for computer games, with the exception of the NSW Attorney-General who abstained;
• that it would be desirable for classifications of existing games to be reviewed in light of the new Guidelines.[14]

2.16      Subsequently, on 10 August 2011, the NSW Government announced in‑principle support for the introduction of an R 18+ (Restricted) classification category for computer games.[15]

2.17      On 10 January 2012, the Australian Government circulated an Exposure Draft of the Bill to the states and territories. All jurisdictions agreed to the proposed provisions but requested an amendment to the commencement date to allow sufficient time for the amendment of enforcement legislation.[16]

2.18      In addition, lead time is required to effect necessary changes to the Code, the Guidelines, the Classification (Markings for Films and Computer Games) Determination 2005, and the Customs Regulations 1926.[17]

Status of the Guidelines

2.19      The Code broadly describes the classification categories set out in the Act. The Guidelines describe in more detail the criteria used by the Classification Board when making classification decisions.

2.20      As noted in Chapter 1, the Guidelines can only be amended with the agreement of all Commonwealth, state and territory ministers responsible for censorship.[18] The Intergovernmental Agreement also requires any substantive proposal to be subject to a process of public consultation involving the invitation of submissions.[19]

2.21      On 25 May 2011, the Australian Government published proposed Guidelines for the Classification of Computer Games, including for an R 18+ (Restricted) classification category (Draft Guidelines). The online publication was accompanied by a survey that sought views on the Draft Guidelines.[20]

2.22      There were 10,334 responses to the online survey, a majority (71 per cent) of which supported the introduction of an R 18+ (Restricted) classification category for computer games. According to the Australian Government's Classification website, the survey results also indicated that 63 per cent of respondents supported both the proposed R 18+ category and the Draft Guidelines; 8 per cent of respondents supported the proposed R 18+ category but did not support the Draft Guidelines; 27.4 per cent of respondents did not support the proposed R 18+ category or the Draft Guidelines; and 1.6 per cent of respondents did not support the proposed R 18+ category but did support the Draft Guidelines.[21]

2.23      In accordance with the Intergovernmental Agreement, and following the public consultation, the Standing Committee of Attorneys-General amended the Draft Guidelines at the July 2011 meeting (Amended Draft Guidelines) and agreed to take them to their respective Cabinets.[22] The Amended Draft Guidelines are currently being refined by the state and territory governments, with the final form yet to be agreed.[23]

2.24      In its submission to this inquiry, the Department submitted that the final form of the Guidelines for the Classification of Computer Games does not need to be reached until commencement of the R 18+ (Restricted) classification category on 1 January 2013.[24] However, a representative of the Department indicated that 'a final set of those guidelines [might be] able to be made public in the very near future', perhaps in time for formal approval at the next meeting of the Standing Council on Law and Justice in April 2012.[25]

2.25      The Intergovernmental Agreement requires the agreed amendments to the Guidelines to be published in the Australian Government Gazette.[26]

R 18+ (Restricted) criteria

2.26      Some submissions to the inquiry commented substantively on the R 18+ (Restricted) criteria set out in the Draft Amended Guidelines. The concerns focussed primarily on the criteria to be assigned to the new classification category, as well as criteria contained in the MA 15+ (Matured Accompanied) classification category.

2.27      Electronic Frontiers Australia, for example, submitted:

Were the new R 18+ classification to be implemented as merely a replacement for the current MA 15+ classification, that would completely undermine the intention of this Bill, and would, in [Electronic Frontiers Australia's] opinion, make a travesty of this entire reform process.[27]

2.28      However, other submissions specifically advocated amending the MA 15+ (Mature Accompanied) criteria to create the criteria for the R 18+ (Restricted) classification category.

2.29      For example, in previous submissions to the Minister (forwarded to the committee as a submission to this inquiry), the Australian Council on Children and the Media (ACCM) expressed the view that the Amended Draft Guidelines do not sufficiently protect children from accessing inappropriate material. Instead, the ACCM endorsed:

...the general strategy of revising MA 15+ to move the higher-end material into a more restrictive category...[W]e urge you to resist any pressure to frame the R 18+ guidelines in any way that would allow into the Australian market any material of higher impact than is currently allowed.[28]

2.30      The Australian Christian Lobby (ACL) welcomed the possibility of computer games already classified MA 15+ (Mature Accompanied) being reclassified as restricted to adults.[29] However, ACL also opposed liberalising the Australian market, by allowing a higher level of graphically violent and sexually explicit interactive media content to be legally available for sale and hire:

This is entirely dependent on the drafting of the new Guidelines for the Classification of Computer Games. Until such guidelines are drafted and agreed upon, ACL only offers cautious support for the principle of an R18+ rating for computer games, subject to strongly held concerns about the ability to restrict the sale of 'adult' games to children.[30]

2.31      FamilyVoice Australia submitted that either the Bill should be rejected or the Amended Draft Guidelines should be further amended to ensure that: the Refused Classification category for computer games is not diluted; and higher end computer games in the MA 15+ (Mature Accompanied) classification category are reclassified as R 18+ (Restricted).[31]

2.32      The Interactive Games and Entertainment Association (iGEA) submitted that it could not provide any detailed comments on the proposed Guidelines for the Classification of Computer Games as the final (revised) document is not available. However, in its submission iGEA suggested that the guidelines avoid placing significant emphasis on the interactive nature of computer games.[32]

Departmental response

2.33      At the public hearing, the committee heard that the Commonwealth, state and territory ministers have agreed that the Guidelines for computer games must be more restrictive than the Guidelines for films at the upper level content – MA 15+ (Mature Accompanied) and above, particularly in relation to the drugs, sex, violence and language criteria:

There are six classifiable elements—the other two are nudity and themes just to be clear about it...The ministers intend that the new MA15+ category for computer games will be more restrictive than the MA15+ category for films, for those classifiable elements. For R-rated computer games, the same is true, but not for the language category...because there are only finite pieces of language. The general difference...between film and computer games is to be more restrictive at that upper level in the equivalent categories.[33]

2.34      A departmental officer also highlighted that some computer games which have received an adults only classification overseas have to date been classified MA 15+ (Mature Accompanied) in Australia:

[T]hat is because the Classification Board applies the guidelines that currently exist at the MA15+ level, whilst the overseas requirements for a non-adult computer game may well be more restrictive, if that makes sense. It would therefore be true to say that there are games that are currently on the market that, were they released in February next year under a new set of guidelines, would be more likely to fall into an adult category than if they were classified three years ago. [34]

2.35       The departmental officer acknowledged that some computer games currently Refused Classification could be expected to be reclassified R 18+ (Restricted).[35] However, this would entirely depend on the reasons for the Refused Classification:

It is not proposed to amend Items 4.1(a)–4.1(c) of the Code. Item 4.1(a) prohibits computer games that offend against generally accepted community standards. Item 4.1(b) prohibits computer games that depict child abuse. Item 4.1(c) prohibits computer games that promote, incite or instruct in matters of crime or violence.[36]

Committee view

2.36      The committee notes that the Department has engaged in extensive public consultation on the subject matter of the Bill prior to its introduction into the Parliament. A significant number of individuals and organisations, as well as state and territory governments, have clearly and overwhelmingly expressed their support for the creation of an R 18+ (Restricted) classification category for computer games in Australia.

2.37      The committee also notes the recent work of the ALRC in its review of the NCS. Leaving aside the ALRC's recommended wide-scale reforms to create a new NCS, which are yet to be considered in the Convergence Review and be responded to by the Australian Government, the committee observes that the ALRC also supports the creation of an R 18+ (Restricted) classification category for computer games in Australia.

2.38      With respect to the Guidelines for the Classification of Computer Games, the committee acknowledges that the state and territory governments are in the process of finalising the proposed criteria. The committee considers that it would be beneficial to stakeholders to have access to the final version of these guidelines as soon as reasonably possible.

2.39      The committee notes the Department's advice that the current Refused Classification category for computer games will not be diluted by relocating item 4.1(d)–computer games unsuitable for a minor to see or play–from that category to comprise the broad description of the R 18+ (Restricted) category.[37]

2.40      In relation to the MA 15+ (Mature Accompanied) and R 18+ (Restricted) classification criteria, the committee acknowledges that until the final Guidelines for the Classification of Computer Games is available, there will be some uncertainty as to the practical implementation of the R 18+ (Restricted) classification category. However, the committee accepts the Department's advice that the state and territory censorship ministers intend for the criteria – particularly in the MA 15+ (Mature Accompanied) classification category – to be different from, and more restrictive than, the current criteria, which apply to both films and computer games. The committee considers that this will assist in preventing minors from accessing computer games which are not suitable for them to view or play, while at the same time respecting the right of adults to choose which computer games they wish to view or play.

Recommendation 1

2.41      The committee recommends that the Senate pass the Bill.

Senator Trish Crossin
Chair

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