The report of the
Review of Australian classification regulation provided to the government by former Communications Dept Secretary Neville Stevens in May 2020 has now been released.
The Review's Terms of Reference were
Classification plays a crucial role in helping Australians make informed decisions about content they or those in their care watch, read and play.
The current National Classification Scheme (the Scheme) exists to provide a framework by which films, video games and certain publications made available in Australia receive a rating and consumer advice that provides a safeguard to the Australian public that content is consumed by the appropriate audience.
It is a joint scheme between the Commonwealth and the states and territories and was established in 1995. The Commonwealth Classification (Publications, Films and Computer Games) Act 1995 establishes the framework for classification of content, and state and territory classification legislation regulates the advertising, availability and sale of classifiable content.
The Scheme applies to online and physical video games, films and episodic series on all platforms including in cinemas, on DVD and online (such as streaming services and subscription video on demand) but not to programs broadcast on television. Classification of television programs is regulated under separate codes of practice covering free to air broadcasters, subscription television broadcasters, the ABC and the SBS.
In 2012, the Australian Law Reform Commission’s (ALRC) report ‘Classification – Content Regulation and Convergent Media’ found that classification legislation ‘does not deal adequately with the challenges of media convergence and the volume of media available to Australians’. The Convergence Review Committee’s report in 2012 endorsed the findings of the ALRC review. Consistent with these reviews, the Australian Competition and Consumer Commission’s (ACCC) Digital Platforms Inquiry final report recommended that ‘a new platform-neutral regulatory framework be developed,’ including ‘creating a nationally uniform classification scheme to classify or restrict access to content consistently across delivery formats’ (Recommendation 6).
The ALRC review was conducted before the popularisation of online streaming and video on demand services and the significant increase in online and mobile games available in Australia. This review will build on the ALRC report in the context of today’s diverse media content market.
Consistent with the agreement of the Council of Attorneys-General, a review of the National Classification Code, the Guidelines for the Classification of Films (Films Guidelines) and the Guidelines for the Classification of Computer Games (Computer Games Guidelines) will also be undertaken to ascertain whether they continue to reflect contemporary community standards. The National Classification Code and the Films Guidelines were last reviewed in 2002, and the Computer Games Guidelines were last reviewed prior to the introduction of the R 18+ category for games in 2013.
Scope
An independent expert will be appointed to conduct the review, supported by the Department of Communications and the Arts (now the Department of Infrastructure, Transport, Regional Development and Communications).
The review will cover:
1. Opportunities to harmonise the classification of, or restriction of access to, content across different delivery platforms including broadcasting services (commercial free to air, national broadcasting and subscription television), online stores and services, cinema releases, and physical product (e.g. boxed video games and DVDs).
2. The design of a contemporary Australian classification framework, including:
a. What content requires classification;
b. Consistency of classification categories, standards and access restrictions across media
formats;
c. Classification decision-making processes, including mechanisms for review; and
d. Governance arrangements, including the suitability of the current cooperative scheme.
3. Opportunities to update classification decision-making standards, including a comprehensive review to update the National Classification Code, the Films Guidelines, and the Computer Games Guidelines.
The following issues are out of scope:
• Broader content regulation issues outlined in Recommendation 6 of the ACCC’s Digital Platforms Inquiry. Content regulation reform is a significant undertaking that needs to be broken down into interrelated processes.
• Regulation of sexually explicit content online, which will be considered in possible reforms to the Online Content Scheme in Schedules 5 and 7 of the Broadcasting Services Act 1992.
The Report states
Australia’s classification system has existed since the early 1900s and has evolved over the decades. Departmental research consistently shows classification is wanted and valued by Australians. From an early focus on censorship, the system has shifted to providing information and guidance to help parents make decisions about the suitability of content for children of varying ages and to provide all consumers with information to make informed choices.
There have been a number of reviews of classification arrangements including the Australian Law Reform Commission’s report in 2012 and the Australian Competition and Consumer Commission’s Digital Platforms Inquiry report in 2019.
These reports highlighted deficiencies with current classification arrangements and recommended significant changes to take into account the increase in content available online and the convergence of media platforms.
Areas of concern raised by these reviews and reinforced by submissions to this review include:
• The high cost of the processes of the Classification Board (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 a number
of 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.
My analysis of these issues and my recommendations for change are informed by the need for a future classification regulatory framework that:
1. Is able to adapt to new technologies, market developments and emerging issues of community concern;
2. Provides clear, useful and easily accessible information to enable consumers to make informed media choices for both themselves and for their children;
3. Has evidence-based classification guidelines that are regularly updated, taking into regard both expert knowledge and Australian community standards;
4. Enables classification arrangements that are efficient and cost-effective for industry, that are consistent across content platforms and which have the confidence of the community;
5. Provides appropriate content restriction and enforcement for both physical and online content; and
6. Enables timely decision-making on changes to the classification scheme.
National Classification Code and standards
Clause 1 of the National Classification Code and section 11 of the Classification (Publications, Films and Computer Games) Act 1995 contain a range of underpinning principles and matters to be taken into account in classification. Although formulated in 1995, many aspects of these overarching principles retain value, in particular the balancing of protecting children from harmful content while preserving the right of adults to “read, hear, see and play what they want.” However, other concepts and language contained in these provisions, which have roots in the history of classification, are in need of an update. Such amendments would reflect the evolution of classification from its historical origins in censorship and concerns for public morals to a more objective, harms-based system focussed on informing consumers (particularly parents) and protecting children.
I recommend that key principles set out in the National Classification Code be updated to provide that:
• Adults should be able to read, hear, see and play what they want, with limited exception;
• Minors should be protected from content likely to harm or disturb them; and
• Everyone should be protected from exposure to content of serious concern to the wellbeing of
the community.
Content to be classified
There is a need to clarify what content should be classified, as current definitions in the Classification (Publications, Films and Computer Games) Act 1995 were designed for the content market of the 1990s and technically capture all streaming services and user-generated content uploaded to sites such as YouTube.
The focus of classification should be on content that is most relevant and important to Australian consumers. I therefore recommend that the following three principles should be used to define content that should be classified:
• Professionally produced – content with higher quality production values; and
• Distributed on a commercial basis – to capture organisations or individuals that distribute
media content as part of their business, as opposed to individuals or community groups whose
main purpose is not to distribute media content for commercial gain; and
• Directed at an Australian audience – a selection of content is specifically made available for
Australia or marketing is specifically directed at Australians.
Narrowing the definition of ‘classifiable content’ will capture online video on demand providers and online games stores directed at Australian consumers but exclude user-generated content. Classification should continue to be the responsibility of the organisation that makes the content available first in Australia, regardless of who originally made the content.
The eSafety Commissioner would continue to have responsibility for responding to online content that is illegal, including content that would be Refused Classification under the National Classification Scheme.
As part of the classification of films, sexually explicit (X 18+) films in physical formats should continue to be classified. Sexually explicit content online is regulated by the Online Content Scheme which is currently being reviewed.
Current classification exemptions for films, computer games and publications should be maintained.
Processes to classify content
A range of different classification processes currently exist under the National Classification Scheme and broadcasting laws. 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.
Classification decisions need to be consistent, accurate, accessible and easily understood by consumers. The community must have confidence that the right classification outcome is reached, regardless of the process that is used to achieve that classification.
I recommend 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. These processes would be:
• 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.
Many computer games online show Australian classifications using the International Age Rating Coalition (IARC) tool. However, Apple’s App Store uses its own international age-rating system where games are classified 4+, 9+, 12+ or 17+. The Apple App Store’s own system is working well – there are few complaints to the Department, and the Department’s research with the community indicates there is general consumer acceptance. I therefore recommend that the relevant Australian Government Minister should have the power to authorise the use of alternative classification systems for computer games where they provide the necessary classification information for the Australian community.
The games storefront Steam, operated by the company Valve, does not display Australian classification information for all games and does not provide Australian consumers and parents with adequate information to help them make informed choices. This needs to change. If Valve does not participate in IARC in the near future, I recommend that the Department further discuss with Valve the implementation of a separate tool to generate Australian ratings for computer games sold to Australian consumers on Steam.
Currently, the same content is required to be classified separately for release across different platforms and in different formats. To avoid this double handling, I recommend that once content is classified once, it should not need to be classified again, unless it is modified and the modification is likely to change the classification. However, content providers should be able to give additional consumer advice where necessary.\
The only exceptions to this would be to:
• Allow content providers to reclassify content after 10 years to reflect changing community standards; and
• Provide a limited provision for content providers to apply to the regulator for approval to reclassify where they consider the original classification category (e.g. G, PG, M, etc.) requires reassessment.
Classification decisions should continue to be uploaded and published on the National Classification Database at www.classification.gov.au, and this database should also include content classified by the broadcasters. This will provide transparent information to Australian consumers and help content providers find the classification of content that has previously been classified.
The review of classification decisions should be transferred from the Classification Review Board to the Australian Government regulator. In the infrequent cases where the regulator was the original decision-maker, alternative staff would review the decision to manage any conflict of interest issues.
The community must have confidence that the move to greater industry self-classification will not undermine the integrity of the classification system. To continue high levels of community confidence in classification, industry self-classification must be underpinned by a robust accreditation, audit, review and timely complaints mechanism overseen by the Australian Government regulator.
Classification categories and consumer advice
A variety of suggestions were made about changes to the classification categories, including adding a category between PG and M, or introducing entirely new age-based categories. Although I see merit in providing more guidance on age suitability for parents, I do not recommend changes to classification categories at this time.
The current scheme, while it may not be perfect, is well known to the community and a clear case would need to be made for any changes. There is no consensus amongst stakeholders, or arising from the Department’s consumer research, for any particular alternative system and changes are strongly opposed by some stakeholders on commercial and technical grounds. However, this matter should be kept under review.
I recommend that the Refused Classification category should continue to include both illegal content and content which is abhorrent to the community but that it be renamed Prohibited to make the meaning of this category clearer.
I also recommend that the current categories for submittable publications be replaced with equivalent categories currently in use for films and computer games: Unrestricted would be replaced with M, Category 1 restricted replaced with R 18+ and Category 2 restricted replaced with X 18+. This change would be clearer for consumers and bring greater uniformity to the classification system.
There are various views in relation to consumer advice and how it is currently applied by classification tools, by broadcast classifiers and by the Board. With a move to greater industry self-classification, there needs to be more detailed guidance given to industry so that consistent consumer advice is provided.
To be useful, consumer advice should be specific, direct and consistent. In this vein, I recommend that generic consumer advice, such as ‘strong themes’, be avoided wherever possible and instead, more descriptive consumer advice be provided.
In updating guidelines for consumer advice, greater recognition should be given to current and emerging community concerns such as suicide, incitement of racial hatred and domestic violence.
Legal restrictions
Currently, the categories MA 15+ and R 18+ are legally restricted under the National Classification Scheme. However, MA 15+ content is not legally restricted on free to air television where broadcasters are subject to a requirement that it be broadcast after at least 8.30pm. Moreover, this content is readily available at any time through broadcasters’ video on demand (catch-up TV) services. Reflecting this, the MA 15+ category stands for Mature Audience on free to air television compared with Mature Accompanied for content classified under the National Classification Scheme.
Despite MA 15+ and R 18+ both being legally restricted categories, an important distinction lies in the provisions relating to adult accompaniment or consent that apply to MA 15+. This means that the age restriction for this category is conditional on the physical accompaniment (for example, during the duration of a film screened in a cinema) or consent (for example, when purchasing a product in store) by a responsible adult. In contrast, the restriction of R 18+ is unconditional and only individuals
18 years and older can access this content.
In the online world, where the concept of another person’s accompaniment or consent is difficult to monitor or enforce, the full conditions of MA 15+ arguably lose their validity. The fact that the accompaniment or consent caveat does not have application in a home setting is reflected in the different conditions that apply to the MA 15+ category for broadcast content.
I consider that arrangements should be consistent across all online platforms and I am recommending that MA 15+ content accessed online no longer be legally restricted. Legal restriction of this category is not enforceable via available technology and this change would harmonise arrangements between broadcasters and other content providers. There are an increasing number of parental controls available online that enable parents to restrict access to particular content and I recommend that these be more widely available and better promoted.
I recommend that the MA 15+ category should remain restricted in the physical world as there are readily available means of enforcing this restriction and in its absence, there would be no alternative mechanism for parents to prevent their children accessing this material.
The R 18+ and X 18+ categories should remain restricted on all formats and the best available technology should be employed to restrict access.
Classification guidelines
There are different but similar guidelines for the classification of films applying to online content providers and free to air and subscription broadcasters. It would be preferable to have a single set of guidelines for films applying across all delivery platforms.
The Films Guidelines use an impact hierarchy for classification, which is inherently subjective and relies heavily on the capacity of the Board to interpret in a consistent manner. The guidelines used by television broadcasters, by comparison, are more detailed in their description of what is allowable in each category. As classification increasingly becomes the responsibility of industry, there is a need for guidelines to be as detailed and as specific as possible to enable the provision of consistent classification decisions and information. This would provide the public with a transparent set of classification criteria and engender confidence in the system.
I therefore recommend the development of more detailed and consistent guidelines across all delivery platforms.
Currently, there is no mechanism for regular reviewing and updating of guidelines to reflect community standards, empirical research on child development issues or developments in content or modes of delivery. I recommend that a Classification Advisory Panel comprising experts in child development and other relevant fields, as well as representatives of community groups and those with industry experience, be established to provide advice on updates of the classification categories, National Classification Code, classification guidelines and matters to be taken into account in decision- making in the Classification Act. The panel would draw on both the empirical evidence in relation to harmful impacts of media content, especially on children, and research and consultation with the community. It would report at least every four years on possible updates to classification guidelines and as necessary to respond to issues that may be referred to it or on which it considers attention needs to be given.
There are separate guidelines used to classify films, computer games and publications. A number of submissions called for the merging of the Films Guidelines and Computer Games Guidelines. Many adult gamers were concerned that the differences in these guidelines were unnecessary and resulted in a number of games being Refused Classification when they are both readily available internationally and would not be Refused Classification under the Films Guidelines.
While there was considerable support for eliminating inconsistencies between the Computer Games Guidelines and Films Guidelines, other submitters were concerned that simply combining these Guidelines would not adequately capture certain interactive game features or provide adequate safeguards for children.
I consider that there is a need to address concerns about the impact of interactive content on children and about violence in computer games, and for this reason do not recommend the merging of the Films Guidelines and Computer Games Guidelines.
However, there are provisions in the Computer Games Guidelines that are more restrictive than the Films Guidelines and have led to a number of games being Refused Classification in Australia. Consistent with the principle in the National Classification Code that “adults should be able to read, hear, see and play what they want,” I recommend that the Films Guidelines and Computer Games Guidelines should be aligned at the R 18+ level and that corresponding changes are made to the Refused Classification provisions in the Computer Games Guidelines. Existing protections would continue to be applied, particularly relating to interactivity, for content below that level that may be accessed by children.
Films Guidelines
Some specific issues were raised in respect of the Films Guidelines. Concerns about sexualised depictions of minors in films is one such issue. While context, artistic merit and intended audience should be taken into consideration when assessing a film generally, sexualised depictions of minors (whether real or animated) that are gratuitous, exploitative or offensive, and which sexually objectify children, should never be permitted.
I recommend that the Films Guidelines should be amended to make reference to the need to give greater weight to the possibility that sexualised depictions of children are gratuitous, exploitative or offensive. While the current classification system provides for child abuse material to be Refused Classification, the provisions in the Commonwealth Criminal Code Act 1995 (the Criminal Code) in relation to child abuse material are much more detailed than those in the National Classification Code and Guidelines, and I recommend that the National Classification Code and Guidelines should be aligned with the Criminal Code in this regard.
There is also a need for clear warnings for consumers and specific guidance for classifiers about matters such as violence against women and sexual violence, suicide, dangerous imitable behaviour and scary content.
I recommend that the Classification Advisory Panel should address these issues in providing advice on the development of revised and more detailed guidelines. It should also review evidence of impacts on children of lower levels of violence. While current treatment of language in classification is considered generally acceptable, there would be value in including racist and other discriminatory language in this element. I also recommend that the use of alcohol, prescription medications and smoking should be considered under the element ‘drugs’.
For X 18+ films, I recommend that the absolute prohibitions on fetishes, which are not illegal, and violence (where it is unrelated to sex) should be removed.
Computer Games Guidelines
Issues relating specifically to the Computer Games Guidelines that have emerged during this review include simulated gambling, loot boxes and other micro-transactions. The main issue with loot boxes is the combination of expenditure with chance and concerns about gambling-like impacts on players, including children. To address this, I recommend that loot boxes that can be purchased are given consumer advice addressing both expenditure and chance aspects, and are given a minimum classification of PG.
Simulated gambling games, which replicate casino games, require a stronger response to prevent children’s access to such games. I recommend that games which are purely based on simulated gambling should be given a minimum classification of MA 15+ and continue to be given consumer advice of ‘simulated gambling’. However, games which incorporate simulated gambling in a less prominent way (e.g. as part of a broader, narrative-based game), and where simulated gambling can be avoided, may not need such a high rating. Appropriate consumer advice would include ‘simulated gambling’ where it is interactive and clearly replicates casino games.
Publications Guidelines
There were few suggested changes to the Publications Guidelines. While I recommend maintaining separate Guidelines for Films, Computer Games and Publications, the Publications Guidelines should incorporate definitions of classifiable elements which are consistent with those used in the Films Guidelines and Computer Games Guidelines. Clarity is also needed in relation to allowable detail in depictions of nudity.
Concerns were raised by two stakeholders about sexualised depictions of children in publications. As with the Films Guidelines, the Publications Guidelines should include the need to give greater weight to the possibility that sexualised depictions of children are gratuitous, exploitative or offensive.
Advertising of films, games and publications
I recommend no changes to classification regulation for the advertising of films, computer games and submittable publications, although responsibilities for advertising assessments that currently lie with the Board should be the role of the Australian Government regulator.
Advertising for films and computer games on television should continue to be regulated through broadcasting codes of practice and the Australian Association of National Advertisers codes. Complaints about the placement of advertising should continue to be referred to the broadcaster in the first instance, with escalated complaints being dealt with by the regulator. Complaints about the substance of advertising should continue to be referred to Ad Standards.
I looked closely at the film industry’s proposal to change Commonwealth laws for advertising unclassified films where the content of the trailer is assessed rather than the likely classification of the film being advertised. However, I recognise that parts of the Australian community may have concerns about potentially unsuitable films being marketed to children, in cinemas in particular, and on balance recommend no change.
Classification governance
Role of the Australian Government and the states and territories
Under the National Classification Scheme, 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. Under the intergovernmental agreement signed in 1995, decisions made by Ministers must be effected through the Council of Attorneys-General (CAG). Any changes to the National Classification Code and the classification Guidelines must be unanimously agreed by Ministers from all jurisdictions. Many submitters were concerned that these long-standing arrangements were no longer working well in the digital age.
To clarify classification responsibilities and to make classification decision-making more responsive to changes in the content market, I recommend that the 1995 intergovernmental agreement be revised so that:
• The Australian Government retains responsibility for establishing the mechanisms to classify content, however a range of different classification processes can be used.
• The Australian Government is responsible for enforcement of online classifiable content, with states and territories responsible for enforcement of offline (physical) classifiable content.
• CAG decision-making should generally be made on the basis of consensus but where consensus cannot be reached, decisions should be made on the basis of a majority of the members.
The Australian Government regulator
Currently, classification regulation is split amongst a number of Federal bodies, including the Board, the Classification Review Board, Australian Communications and Media Authority (ACMA) and the Department. Consistent with the recommendations to harmonise content regulation across all delivery platforms, I consider that most of these functions should be consolidated in one body. Given its existing role in regulation of broadcasters and online content more generally, I recommend that this body be ACMA.
