Purpose of the Bill

The purpose of the Classification (Publications, Films and Computer Games) Amendment (Industry Self-Classification and Other Measures) Bill 2023 is to:

• amend the Classification (Publications, Films and Computer Games Act) 1995 (the Act) to empower a degree of self-regulation by industry
• ease restrictions on exempt cultural institutions and public libraries seeking to show unclassified material
• reform some administrative rules relating to the current need to duplicate the classification process for material already approved for broadcast under the Broadcasting Services Act 1992 (the Broadcasting Act).

Structure of the Bill

The Bill contains two Schedules.

Schedule 1 provides for classification to be undertaken by ‘accredited persons’, establishes rules about their accreditation and the status of their decisions, including how they may be revoked, and also makes an assortment of structural changes to the flow of provisions in the Act.

Schedule 2 provides:

• powers for the Classification Board (the Board) to formulate and publish certain forms of consumer advice
• exemptions from classification for foreign language films distributed by public libraries and routine exhibitions hosted by cultural institutions
• that some films already classified for broadcast under provisions in the Broadcasting Act can be deemed to have already been classified by the Board.

Background

The National Classification Scheme (the Scheme) was established through the Act. The Act provides for a National Classification Code, which begins with a statement of 4 principles:

• adults should be able to read, hear, see and play what they want
• minors should be protected from material likely to harm or disturb them
• everyone should be protected from unsolicited material they find offensive
• the need to take account of community concerns about depictions of violence, sexual violence, and the portrayal of persons in a demeaning manner.

The Board, established under Part 6 of the Act, is an independent statutory body which comprises a Director, a Deputy Director and other members.[1] The Board classifies films, computer games and certain submittable publications, all of which are defined in the Act. The Classification Review Board (the Review Board), established under Part 7 of the Act, is responsible for reviewing certain decisions of the Classification Board. The Review Board is independent of both the Board and the Government.

The Scheme is based on a cooperative agreement between the Australian Government and the states and territories, under which the Australian Government is responsible for classifying content and the states and territories are responsible for regulating the sale, exhibition, advertising and hire of classifiable content. Each state and territory has a classification Act enforced by state and territory police or fair trading bodies.

Two significant reviews of the Scheme have been completed. In 2012, the Australian Law Reform Commission completed Classification—content regulation and convergent media, which reviewed the challenges of classification in the context of media convergence and the rising volume of media content available to Australian audiences. In 2020, Neville Stevens explored opportunities to harmonise the classification of content across different media formats in the Review of Australian classification regulation: report (the Stevens Review). Both reviews concluded the existing scheme is compromised by an inability to process large volumes of content.[2]

The Stevens Review registered some of the key concerns that need to be addressed:

• The high cost of processes to use the Board, especially given the volume of content now requiring classification;

• Timeframes to use the Board which are too long to be compatible with current media practices;

• Separate regulatory systems and regulators for broadcast and for other content providers;

• Lack of clarity on what content should require classification due to the very wide and outdated definitions in current legislation;

• Lack of compliance with existing legislation among some content providers, including some video on demand providers and online games storefronts, partly as a result of the high cost and long timeframes of existing classification practices;

• Governance arrangements between the Australian Government and the states and territories, which could better define roles and responsibilities of the various parties in an online environment, and which are not seen as sufficiently timely or flexible; and

• Lack of a regular approach to updating classification guidelines to reflect contemporary community concerns and research into relevant matters, including child development issues. (p. 28)

The Stevens Review argued that while some greater flexibility had been introduced into the Scheme, including through 4 content assessor schemes and 3 algorithmic tools (p. 29), the emergence of new platforms and the increase in media content mean there is still a need for a full review of classification processes across platforms to reduce costs and timeframes. The report concluded:

The approval of tools for the classification of computer games and some streaming content have highlighted that a model where classification is done by a Government Board is arguably not working now and will certainly not work in the future. (p. 29)

The Stevens Review argued that the range of different classification processes developed under the Scheme has created an uneven playing field for companies seeking to use the current system.

Where some content providers are submitting content to the Board, some are using classification tools and others are self-classifying content. These varying processes mean that classification can be more expensive and time-consuming for some parts of industry compared to others and this uneven playing field can have an impact on compliance with classification laws. (p. 10)

It recommended ‘harmonising processes’ across platforms, ‘so that industry is given greater responsibility for undertaking classification, with the flexibility to choose the classification process that best suits them’ (p 10). It noted these processes would include:

• Self-classification by people trained and accredited by the regulator, who could be either in-house staff or third-party classifiers; or

• Self-classification using classification tools approved by the Australian Government Minister; or

• Submitting content to the regulator for classification. (p. 10)

When the Australian Government released the Stevens Review on 29 March 2023, it made a number of commitments for reform:

• That the Government would seek agreement of state and territory Attorneys-General, as co‑partners in the Scheme, to ‘introduce a mandatory minimum classification of R 18+ (Restricted to 18 and over) for games which contain simulated gambling and M (Mature - not recommended for persons under 15 years) for computer games containing paid loot boxes.’
• The Government also committed to ‘expand[ing] options for industry to self-classify content’, and to providing ‘exemptions from classification for foreign language films distributed by public libraries and routine exhibitions hosted by cultural institutions, and [to] removing the need to re-classify content that has already been classified for television.’
• Finally, the Government committed to ‘consult with industry and other key stakeholders on broader classification reforms’.

This Bill seeks to fulfil the objectives stated in the second dot point above. According to the Explanatory Memorandum, the Bill aims to ‘improve the capacity of the National Classification Scheme (NCS) to efficiently manage the rapid growth in the volume of classifiable content, particularly online content, reduce costs and promote industry compliance, and increase access to cultural content in public libraries and approved cultural institutions.’ (p. 2)

Committee consideration

At the time of writing, the Bill had not been referred to, or reported on, by any committees.

Policy position of non-government parties and independents

At the time of writing none of the non-government parties or independents had commented on the Bill.

Andrew Wilkie did, however, use the occasion of the Government’s release of the Stevens Review, noted above, to draw attention to a Bill he introduced to the Parliament in November 2022, which proposes that all computer games containing loot boxes be classified R 18+ or RC.[3] Mr Wilkie described the Government’s commitment to seek agreement from state and territory governments for computers games with loot boxes to be classified M as ‘absurd’. He added: ‘To pay to participate in a game of chance with the possibility of a reward is gambling by any definition and should be banned for people under the age of 18.’

Position of major interest groups

The Interactive Games and Entertainment Association (IGEA) welcomed the Bill, noting specifically the provisions for accrediting industry classifiers to make classification decisions.

IGEA, on behalf of the Australian video games industry, welcomes Minister Rowland’s commitment to modernise the classification system and appreciates the move towards empowering industry accredited classifiers, subject to appropriate safeguards. We are also pleased that the Minister has flagged that there will be a second stage of reform to commence later in the year to help establish fit for purpose regulatory arrangements to ensure classification criteria matches evolving community standards and expectations.

Financial implications

The Explanatory Memorandum to the Bill states that the implementation of costs will be met from within existing resources, and that cost recovery arrangements for industry self-classification may be considered in a future Budget process. (p. 3)

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[4]

Parliamentary Joint Committee on Human Rights

At the time of writing, the Bill had not been considered by the Parliamentary Joint Committee on Human Rights.

Key issues and provisions

There are 4 matters addressed by the Bill:

• introduction of industry self-classification, by accredited persons who are able to make classification decisions
• a related clarification of the Board’s powers, including to regulate the accreditation process
• exemptions from classification for low risk content and
• a limited introduction of a ‘classify once’ principle.

Schedule 1: Classification by accredited persons and tools

Schedule 1 proposes to establish a new accreditation scheme, which will enable content providers to use classifiers (either in-house or third party) who have been trained and accredited by the Government to self-classify content.

As noted in the Background section of this Digest, some of the work of classifying films and computer games is already undertaken by content assessors, who operate externally to the Board, through 4 authorised assessor schemes:

• the Additional Content Assessor Scheme[5]
• the Authorised Television Series Assessor Scheme[6]
• the Authorised Assessor Computer Games Scheme[7]
• the Authorised Advertising Assessor Scheme.[8]

In each Assessor Scheme, third party assessments can be revoked by the Board.

The Act also allows classification to be undertaken by certain industry tools which, according to the Australian Classification website, allow ‘a questionnaire, computer program or other interface that allows a person or artificial intelligence to classify content.’[9] The approved tools currently used are as follows:

• IARC Global Rating Tool for mobile/online computer games
• Netflix Classification Tool for online films and TV series
• Spherex Classification Tool for online films and TV series.

The Stevens Review noted the growth of new kinds of media platforms that did not exist two decades ago, including subscription video on demand (SVOD) services, broadcast video on demand (catch-up TV), live streaming platforms and online games and mobile apps, and noted:

While contributing to a large portion of content available to Australians, content on these platforms is generally not classified. (p. 23)

While some of these platforms may now be made responsible for classification of digital content, the consultation about further reform to the Scheme forecast by the Minister in March 2023 may include discussions about options for other kinds of regulatory arrangements.

Proposed rules for accredited classifiers

Part 2 of the Act currently provides rules for classification of publications, films and computer games. Item 30 of Schedule 1, inserts proposed Division 2G into Part 2. Proposed section 22K in the proposed Division 2G provides that classification decisions about films and computer games may be made by accredited persons, who would also be responsible for determining appropriate consumer advice about content.[10] Classification decisions would take effect when they are included in the National Classification Database.[11] The Explanatory Memorandum provides further explanation:

Decisions made by accredited classifiers will be taken as decisions in their own right, and take effect when they are uploaded to the National Classification Database, an existing centralised public record. This is different to decisions by classification tools, which are considered as decisions of the Board under the Act (refer to section 22CF(1)). (p. 13)

Proposed subsection 22K(4) would limit the scope of this delegation to industry, by providing that films and computer games likely to be classified RC or X 18+ must still be assessed and classified by the Board.

Proposed section 22M describes the conditions of accreditation. The Secretary of the Department[12] may accredit a person to classify films and computer games for a specified period if certain conditions are met:

•  the person has made a correct application for accreditation which includes a declaration stating that the person has not been convicted of certain offences involving fraud or dishonesty nor has been ordered to pay any pecuniary penalties in relation to civil offences involving fraud or dishonesty
• the application is accompanied by payment of any required accreditiation fee
• the person has completed the approved training within the last 12 months
• there is no baring notice in force against the person under sections 17B, 17C, 22F, 22H and 22Q of the Act and

the Secretary is not aware ‘of any reason why the person is not suitable to classify films and computer games’ (proposed paragraph 22M(3)(e)).

Proposed Division 2G also includes provisions that would:

• allow revocation of classification decisions by an accredited persons in certain circumstances, including where the Board would have classified the film or computer game differently (proposed section 22L)
• require further training be undertaken by an accredited persons in certain circumstances, including where the Board revoked two or more classifications by the person in a 12 month period (proposed section 22N)
• revoke accreditations of a person under certain conditions, including where the Board revoked three or more classifications by the person in a 12 month period (proposed section 22P)
• bar a person from being accredited under certain conditions (proposed section 22Q).

Items 7 to 29 in Schedule 1 propose to restructure Part 2 of the Act, in order to reflect the addition of accredited decision makers to the the Scheme. The Explanatory Memorandum states that these amendments would ‘provide the reader with additional clarity on the application of various classification provisions and avoid repetition of sections applying to more than one classification mechanism’. (p. 11)

Decisions to refuse or revoke accreditation, directions to undertake further training, and decisions to bar a person from from being accredited can be reviewed by the Administrative Appeals Tribunal (proposed section 22R).

Schedule 2 – Other amendments

Part 1 — Criteria for revocation in relation to consumer advice

Item 1 of Schedule 2 inserts proposed section 12A into the Act, which would establish that the Board may issue a legislative instrument containing a list of approved words and phrases to be used by accredited persons in providing consumer advice for films and computer games, along with guidance on how those words and phrases should be used.

Note that Section 8 of the existing Act empowers the Minister to, by legislative instrument, determine markings and consumer advice which must be displayed on classified film, computer game, or publication. Under proposed subsection 22K(3), an accredited person must, when classifying a film or computer game, also determine consumer advice which provides information about the content of that film or game.

The Explanatory Memorandum states that the intention is that ‘accredited persons and operators of approved classification tools will use the list of approved consumer advices to ensure consistent application for all content classified under the Act.’ (p. 20)

Item 2 repeals and replaces existing section 22CH to clarify the conditions by which classification decisions made by approved tools can be revoked by the Board. Under proposed section 22CH, such decisions could be revoked if:

• the Board would have given the material a different classification
• the consumer advice provided for the relevant material is misleading, incorrect or grossly inadequate or
• the consumer advice for the relevant material uses a term that is not included in the Board’s list of consumer advice language contained in the legislative instrument made under proposed section 12A.

The Explanatory Memorandum states that the intention of this amendment is ‘to create a more objective set of criteria for revocation on the basis of different consumer advices, particularly in circumstances where these differences would make no material difference to the usefulness of the advice to consumers’, and it would also align the rules for revoking classifications by approved tools with the rules for revoking decisions by accredited classifiers (outlined in proposed subsection 22L(1)(b)). (p. 20)

Part 2 — Exemption for public library distribution of films in a language other than English

Item 4 of Schedule 2 proposes that films in languages other than English, which are distributed through public libraries or the libraries of tertiary educational institutions, be exempt from classification. This would be achieved through inserting a new entry at the end of the table of exempt films included at existing subsection 6B(1). For the exemption to apply to a film, the following conditions would need to apply:

• the film is wholly in a language other than English (disregarding any minor and infrequent uses of the English language or any English language subtitles or captioning)
• the film has been imported into Australia for the sole purpose of being included in the collection of one a public library and/or a library of a tertiary educational institution
• the film is published in a physical format
• no more than 500 copies of the film in that format have been imported into Australia and
• the film, if it were classified, would be likely to be classified G or PG.[13]

The Stevens Review acknowledged that classification services currently operate under a cost recovery funding model where applicants must provide a fee for the classification of content.[14] As a consequence, access to films in community languages is limited to those which can be imported and sold in large enough volumes to offset the cost of classification.[15]

The Stevens Review noted submissions by the Australian Library and Information Association (ALIA) and the State Library of NSW, which indicated that public libraries have increasingly found it difficult to source films in languages other than English for their culturally and linguistically diverse communities, and concluded that current classification laws are inadvertently preventing libraries from providing access to resources to all members in the community in an equitable manner.

As the quantity of these films purchased by public libraries is very low in number (less than 50 copies), DVD suppliers do not view it as commercially viable to pay to have a title classified. Accordingly, public libraries are unable to purchase these films for their collections due to the prohibition on the sale by the suppliers of unclassified films under state and territory classification legislation. (p. 44)

For this reason, the Stevens Review recommended development of an exemption, for unclassified films in languages other than English, for supply to public libraries.[16] The Bill gives effect to that recommendation, as well as extending the exemption to libraries run by tertiary education institutions.

Part 3 — Extending conditional cultural exemptions

Under section 6E of the Act, a publication, film or computer game that is shown as part of an event organised by an approved cultural institution may be subject to a conditional cultural exemption if certain criteria are met. Those criteria include:

• if the material displayed, were it classified, would not likely be rated RC, X 18+ or Category 2 restricted
• if the material is classified M or MA 15+, children aged under 15 years are not present without an adult
• if the material is classified R 18+ or Category 1 restricted, only persons aged 18 years and over are present and
• the information about the relevant material that is prescribed by the conditional cultural exemption rules is given, in accordance with those rules, to the persons present at the showing.

Item 6 in Schedule 2 would extend the application of this exemption to include routine exhibitions, rather than being limited to special events, by removal of the words “as part of an event organised” from subsection 6E(a) of the Act.

The Explanatory Memorandum states this will broaden the application of existing conditional cultural exemptions for classifiable content to include routine exhibitions at approved cultural institutions (as defined at section 6F of the Act).

Removing this requirement will clarify the compliance requirements for approved cultural institutions, and will lower the administrative burden for the conduct of routine exhibitions that are considered low‑risk. (p. 23)

This change is proposed despite the Stevens Review not recommending any significant changes to this part of the Act (p. 44).

Part 4 — Deeming of films already classified under the Broadcasting Services Act 1992

Item 11 of Schedule 2 will insert proposed Division 3 into Part 1A of the Act. Proposed section 6HA within this Division provides that certain films already classified under the Broadcasting Act are deemed to be classified under the Act, provided the film:

• has a classification rating of R18+ or lower
• has not previously been classified under the Act and
• has not been modified post-classification.

This proposal to ‘classify once’ follows the recommendation of the Stevens Review, that the same film classification guidelines should be used across all film and television content platforms, including broadcast television. (p. 81) The Stevens Review presented a visual representation of the currently overlapping forms of content regulation, shown in Figure 1.

Figure 1  Overlapping content regulation

Source: Neville Stevens, Review of Australian Classification Regulation: Report (Stevens Review), (Canberra: Department of Infrastructure, Transport, Regional Development, Communications and the Arts, 2020), p. 30.

As noted in the Stevens Review, commercial, subscription and public television broadcasters are required by relevant legislation to develop their own classification processes (pp. 20–21). Their four classification systems are very similar to each other, and to the National Classification Scheme, and they afford a much greater degree of flexibility than is afforded to other forms of film distribution.[17]

Broadcasters have a higher degree of flexibility to make changes to their Codes of Practice compared to the National Classification Scheme. Under the Scheme, changes require unanimous agreement from the Australian Government Minister and state and territory Ministers. Commercial free to air broadcasters and ASTRA, however, can update classification arrangements in their Codes of Practice at any time, with the updated Codes of Practice then being registered with ACMA. The ABC and SBS have even greater independence and are only required to notify ACMA when they have updated their Codes of Practice. (pp. 20–21)

The Explanatory Memorandum explains the justification for proposed section 6HA:

The intent of this provision is to support a ‘classify once’ principle where content that has been classified using similar classification guidelines does not need to be classified again. It also addresses an anomaly in the BSA, as per the Broadcasting Services (“Broadcasting Service” Definition—Exclusion) Determination 2022, whereby on-demand services including ‘catch-up’ services operated by broadcasters (for example Nine Now or ABC I-view) are not covered by the definition of a broadcasting service under the BSA, but are instead regulated under the Act. (p. 24)

Conclusion: areas indicated for future reforms

While the Bill would address some of the recommendations made by the Stevens Review, other changes to the Scheme have been foreshadowed by the Government.

As noted above, the Government’s plans for classification changes relating to computer games with simulated gambling and loot boxes are yet to be introduced. However, the current proposal to implement a minimum M rating for computer games containing loot boxes, as noted in the Background section of this Digest, appears to exceed the minimum PG rating recommended by the Stevens Review (Recommendation 10-5, p. 100).

Note also that while the Stevens Review recommended computer games which exclusively involve simulated gambling should be classified at a minimum MA15+ (Recommendation 10-3, p. 97), the Government’s current intention is to consult with the states and territories to mandate that an R18+ classification be applied to any game with simulated gambling.

Public consultation on this issue was undertaken by the Department of Infrastructure, Transport, Regional Development, Communications and the Arts during May and June 2023. Submissions received during the consultation are available on the Department’s website.

Broader reform to the Scheme has also been announced, with consultations occurring between Government and both industry and the states and territories. As these consultations appear to be ongoing, there are limited details as to the nature of these wider reforms. However, the Stevens Review made other recommendations which may well be addressed in those consultations. Chief among these were that:

• there should be one classification regulator, in this case, the Australian Communication and Media Authority (ACMA) (Recommendation 13-2, p. 121)
• a Classification Advisory Panel should be established to provide advice on issues related to classification regulation, including the Classification Act and the Classification Code (Recommendation 8-3, p. 79) and
• publications should be harmonised with the classification categories currently applying to films and computer games (Recommendation 7-2, p. 67).