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Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014



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BILLS DIGEST NO. 12, 2014-15 15 AUGUST 2014

Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014

Mary Anne Neilsen Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 3

Structure of the Bill ............................................................. 3

Background ......................................................................... 4

National Classification Scheme ............................................. 4

ALRC Report: Classification-Content Regulation and Convergent Media ................................................................. 4

Committee consideration .................................................... 5

Senate Legal and Constitutional Affairs Legislation Committee ............................................................................... 5

Senate Standing Committee for the Scrutiny of Bills .............. 5

Policy position of non-government parties/independents ..... 6

Position of major interest groups ......................................... 6

Financial implications .......................................................... 9

Statement of Compatibility with Human Rights and Parliamentary Joint Committee on Human Rights ................. 9

Key issues and provisions..................................................... 9

Schedule 1—Classification tools ............................................ 9

General comments on Schedule 1 .................................... 10

Schedule 2—Referral of material to law enforcement agencies ............................................................................... 11

General comments on Schedule 2 .................................... 11

Schedule 3—Exemptions ..................................................... 12

Date introduced: 19 March 2014

House: House of Representatives

Portfolio: Attorney-General

Commencement: Various dates as set out in the table in clause 2 of the Bill.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_ Legislation

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

ISSN 1328-8091

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General comment on Schedule 3 ...................................... 14

Schedule 4—Modifications ................................................. 14

Schedule 5—Determined markings and consumer advice .................................................................................. 15

General comment on Schedule 5 ...................................... 16

Concluding comments ....................................................... 16

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Purpose of the Bill The purpose of the Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014 (the Bill) is to implement a select number of changes based on recommendations of the Australian Law Reform Commission's (ALRC) review of the National Classification Scheme1 and approved by the Standing Council on Law and Justice in April 2013.2 These include amendments to the Classification (Publications, Films and Computer Games) Act 19953 (the Classification Act) to:

• broaden the scope of existing exempt film categories and amend exemption arrangements for festivals and cultural institutions

• enable certain content to be classified using classification tools

• create an explicit requirement in the Classification Act to display classification markings on all classified content

• expand the exceptions to the modifications rule so that films and computer games which are subject to certain types of modifications do not require classification again and

• enable the Attorney-General’s Department to notify law enforcement authorities of potential Refused Classification content without having the content classified first.

The Bill also makes other technical amendments to the Classification Act and consequential amendments to the Broadcasting Services Act 1992.

Structure of the Bill The Bill consists of seven Schedules:

• Schedule 1—Classification tools: enables certain content to be classified using classification tools approved by the Minister

• Schedule 2—Referral of material to law enforcement agencies: enables the Attorney-General’s Department to notify law enforcement authorities of potential Refused Classification content without having the content classified before notification

• Schedule 3—Exemptions: broadens the scope of existing exempt film categories and streamlines exemption arrangements for festivals and cultural institutions

• Schedule 4—Modifications: expands the exceptions to the modifications rule so that films and computer games which are subject to certain types of modifications do not require classification again

• Schedule 5—Determined markings and consumer advice: specifies that the Minister may determine high level principles relating to classification markings and consumer advice. The schedule also includes an explicit requirement to display markings and consumer advice and makes it mandatory for the Classification Board to provide consumer advice at the G classification

• Schedule 6—Other technical amendments: amongst other things it includes offence provisions for the unauthorised commercial use of determined markings and amendments relating to the authorised assessors scheme for computer games. This will provide consistency with other assessor schemes in the Classification Act and

• Schedule 7—Simplified outlines: inserts simplified outlines for each Part of the Classification Act.4

The Bills Digest focuses on Schedules 1 to 5 of the Bill. The reader is referred to the Explanatory Memorandum for a further description of Schedules 6 and 7.

1. Australian Law Reform Commission (ALRC), Classification: content regulation and convergent media, ALRC report 118, ALRC, Sydney, 2012, accessed 12 May 2014. 2. Standing Council on Law and Justice (SCLJ), Communique, SCLJ, Darwin, 4 April 2013, accessed 29 July 2014. 3. Classification (Publications, Films and Computer Games) Act 1995, accessed 12 May 2014. 4. Simplified outlines are a more modern drafting technique included as an aid in understanding the substantive provisions.

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Background National Classification Scheme Procedures for the classification of publications, films and computer games are set out in the Classification Act. The Act forms part of the National Classification Scheme (NCS), a cooperative arrangement between the Commonwealth, states and territories. The Classification Act provides that the Classification Board classifies films (including videos and DVDs), computer games and certain publications. As part of the classification scheme, each state and territory has enacted classification enforcement legislation that complements the Commonwealth Classification Act. State and territory classification legislation prescribes penalties for classification offences and provides for enforcement of classification decisions in the particular jurisdictions. 5

The National Classification Code (the Code)6 contains descriptions about the products which would fall within the classification types. For example, the Code sets out the level of depiction of sex and violence and other issues which would cause a film to be classified as G, PG, M, et cetera.7

The criteria for classification are also contained in the Guidelines for the Classification of Films,8 the Guidelines for the Classification of Computer Games9 and the Guidelines for the Classification of Publications.10

Classification decisions are made by the Classification Board and, on appeal, reviewed by the Classification Review Board. Clause 1 of the Code sets out some broad principles the Boards are to consider in classification. These include:

• adults should be able to read, hear and see what they want

• minors should be protected from material likely to harm or disturb them

• everyone should be protected from exposure to unsolicited material that they find offensive and

• the need to take account of community concerns about:

− depictions that condone or incite violence, particularly sexual violence and

− the portrayal of persons in a demeaning manner.11

ALRC Report: Classification-Content Regulation and Convergent Media On 24 March 2011, the then Attorney-General, Robert McClelland, asked the ALRC to inquire into and report on the framework for the classification of media content in Australia.12 This was the first comprehensive review of the classification system in twenty years and was informed by developments in technology, media convergence and the global availability of media content.

An overwhelming message that came from the ALRC consultation process concerned the need for fundamental reform to the NCS, rather than incremental changes to existing legislation. 13 Terry Flew, Commissioner in charge of the review, states:

5. For example: Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (ACT); Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic); Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW). 6. National Classification Code (May 2005), accessed 28 July 2014. 7. Section 7 of the Classification Act lists the different classifications:

(1) The following are the different types of classifications for publications in ascending order: Unrestricted; Category 1 restricted; Category 2 restricted; RC Refused Classification. (2) The following are the different types of classifications for films in ascending order: G General; PG Parental Guidance; M Mature; MA 15+ Mature Accompanied; R 18+ Restricted; X 18+ Restricted; RC Refused Classification. (3) The following are the different types of classifications for computer games in ascending order: G General; PG Parental Guidance; M Mature; MA 15+ Mature Accompanied; R 18+ Restricted; RC Refused Classification. 8. Guidelines for the Classification of Films 2012, accessed 6 August 2014. 9. Guidelines for the Classification of Computer Games 2012 , accessed 6 August 2014. 10. Guidelines for the Classification of Publications 2005, accessed 28 July 2014. 11. This description of the NCS is mainly taken from: M Neilsen, Classification (Publications, Films and Computer Games) Amendment (Terrorist

Material) Bill 2007, Bills digest, 22, 2007-08, Parliamentary Library, Canberra, 2007, accessed 28 July 2014. 12. The terms of reference for the ALRC inquiry are at: ALRC, Classification: content regulation and convergent media, op. cit., pp. 5-6. 13. T Flew, Media classification: content regulation in an age of convergent media, Media International Australia, 143, May 2012, p. 9, accessed

5 August 2014.

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The message came through most strongly from industry participants that the current scheme was 'an analogue piece of legislation in a digital world' (APA, 2011), that there was an urgent need for 'a framework that applies across platforms in a consistent and equitable manner' (SBS, 2011) and that the ALRC needed to 'undertake a holistic examination of the National Classification Scheme with the objective of developing a national classification framework for the modern media environment' (Telstra, 2011 ).

14

The final report, Classification: Content Regulation and Convergent Media,15 tabled in Parliament on 1 March 2012, came to the broad conclusion that:

Australia needs a new classification scheme that applies consistent rules to media content on all platforms—in cinemas, on television, on DVDs and on the internet … But the scheme also needs to be flexible, so it can adapt to new technologies and the challenges of media convergence. 16

The report made a total of 57 recommendations, covering such matters as: what content must be classified and by whom; classification categories and criteria; restricting access to content classified R18+ and X18+; the scope of prohibited content; industry codes and co-regulation; and responsibilities for classification laws, regulations and enforcement.17 Among the 57 recommendations in the report 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.

In April 2013 the previous Labor Government secured the agreement of the Standing Council on Law and Justice for six of the recommendations listed in the ALRC report to be implemented.18 Jason Clare, then Minister for Justice, when announcing this agreement said that this first stage of reforms to the NCS would be introduced into Parliament during the 2013 winter session and that a later meeting of the Standing Council on Law and Justice would look at implementation of further ALRC reforms.19 That legislation did not eventuate before Parliament was prorogued, however it has now been introduced by the current Government in the form of this Bill.

Committee consideration Senate Legal and Constitutional Affairs Legislation Committee The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report. The original reporting date was 19 June 2014 but this has been extended to 27 August 2014. Details of the inquiry are at the inquiry web page.20 The submissions are discussed below.

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) has examined the Bill and commented on a number of provisions. The Committee raises questions regarding appropriate delegation of

14. Ibid. 15. ALRC, Classification: content regulation and convergent media, op. cit. 16. ALRC, ALRC recommends a new national classification scheme, media release, 1 March 2012, accessed 28 July 2014.

17. T Flew, op. cit., p. 10. 18. At its April 2013 meeting, the Standing Council on Law and Justice discussed a number of ALRC recommendations and agreed amongst other things: • to more streamlined, pragmatic and less legally complex exemption arrangements (Queensland agreed to this decision in principle)

• to amend the Act to allow for the use of classification decision-making instruments, such as online questionnaires (Queensland abstained from this decision)

• to include the requirement in the Act that classified content and advertisements for classified content must display classification markings. In addition, the Commonwealth Minister will be empowered to determine principles in regard to classification markings

• that the Act should be amended to make the current modification rules less prescriptive

• that the Act be amended to enable consumer advice to be assigned or changed independently from the classification category and

• that the Act be amended to enable the Commonwealth Attorney-General’s Department to notify law enforcement authorities of content that is potentially RC without first having the content classified by the Classification Board. See: Standing Council on Law and Justice, op. cit.

19. J Clare, Reform to the National Classification System, media release, 5 April 2013, accessed 29 July 2014. 20. Senate Legal and Constitutional Affairs Legislation Committee inquiry page.

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legislative power in relation to ministerial guidelines for classification tools (Schedule 1, item 4, proposed section 22CA) and in relation to the conditional cultural exemption rules (Schedule 3, item 18, proposed section 6G).21 The Committee’s comments are considered below under the heading, Key issues and provisions.

Policy position of non-government parties/independents The Labor Party welcomes the Bill, pointing out that it is essentially a Labor Government initiative. David Feeney, in the second reading debate on the Bill, notes that it was the previous Labor Government that initiated the ALRC inquiry into classification and secured the agreement of the states and territories for the introduction of the first tranche of ALRC reforms contained in this Bill.22

At the time of writing, the views of other political parties and independents are not known.

Position of major interest groups The Senate inquiry into the Bill has received 17 submissions expressing a range of views. Many submissions focussed on the classification tools regime in Schedule 1. The classification tools that might be used are not defined and their adoption and approval is deliberately left to the Minister. Generally, however, it is expected that such a tool could take the form of a questionnaire on a website or some type of algorithmic computer program. In response, the tool will deliver a classification decision and consumer advice for the relevant material.23

Submissions from the entertainment industry were generally supportive of the Bill. For example, the Australian Home Entertainment Distributors Association (AHEDA) strongly supports the amendments in the Bill saying they are modest and sensible first steps in what AHEDA hopes is a wider reform process. The AHEDA submission also noted that the Association had been at the forefront of the lobbying for classification reform over the past decade and had achieved a number of improvements to the NCS. AHEDA sees the current system as outdated and not meeting industry or consumer needs. AHEDA supports the classification tools reform as a ‘common sense approach’ to ensuring greater compliance of classification markings for content available to Australian audiences. AHEDA also supports the expansion of exemptions to classification, is strongly supportive of the changes to modification rules and the proposed arrangements for markings and consumer advice.24

The Games Developers’ Association of Australia (GDAA) and the Interactive Games and Entertainment Association (ICEA) also support the Bill, particularly those amendments relating to the use of classification tools, exemptions for cultural institutions and festivals, and amendments easing the rules regarding modifications. Their joint submission, arguing that the Classification Board cannot keep up with the flood of games now available, states:

In 2013 the Classification Board classified approximately 600 computer games and, since its inception in 1996, the Classification Board has classified an average of 745 computer games per year. By way of comparison, in 2013 more than 57,000 games were released for Apple’s App Store, up from over 35,000 in 2012. This amount can be added to the thousands of games that have been released on other digital distribution platforms such as PlayStation Network, Xbox Live, Nintendo eShop, EA’s Origin, Google’s Play Store and Valve’s Steam…

The volume and frequency of computer games released in Australia will grow exponentially and is outside the realistic regulatory scope of the current National Classification Scheme. 25

21. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 4 of 2014, The Senate, Canberra, 26 March 2014, pp. 2-5, accessed 21 July 2014. 22. P Feeney, ‘Second reading speech: Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014’, House of Representatives, Debates, 25 March 2014, p. 3064, accessed 30 July 2014. 23. Explanatory Memorandum, Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill

2014, p. 14, accessed 6 August 2014. See below for further description. 24. Australian Home Entertainment Distributors Association, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014,

30 April 2014, accessed 29 July 2014. 25. Interactive Games & Entertainment Association and Games Developers’ Association of Australia, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Classification (Publications, Films and Computer Games) Amendment

(Classification Tools and Other Measures) Bill 2014, 23 April 2014, accessed 29 July 2014.

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The GDAA and ICEA submission refers specifically to the automated system called the International Age Rating Coalition, noting that the ALRC review had considered the automated decision-making instruments such as IARC and ultimately recommended allowing the use of such authorised classification instruments.26 GDAA and ICEA argue that use of a system such as IARC would ensure the NCS is ‘able to classify the exponentially growing number of computer games now available on digital game storefronts — therefore ensuring minors are protected from material likely to harm or disturb them by providing parents and guardians with appropriate Australian classification information’.27

The most significant and probably most controversial aspect of the Bill is the classification tools regime in Schedule 1. While the entertainment industry is actively supportive of the use of automated classification tools there are other submissions that raise doubts about it.

For example, a submission from members of the Cyberspace Law and Policy Community, UNSW, focuses mainly on the classifications tools regime in Schedule 1, and presents a powerful argument questioning the concept of an automated decision maker, stating:

It [the Classifications Tools Regime] may be intended to apply to small scale content decisions similar to those made at present, at least initially, but it seems also clearly designed to be capable of automated mass scale “classification” decisions. This is a functionality that may outsource the task from independent and objective professional classifiers to industries with a vested interest in certain outcomes. It may also at some later date be pressed into service in for instance a revived and expanded ISP-level mandatory content filter (the process for maintenance of the blacklist for which was one of its many flaws), if or when a fully automated tool is ever approved and adopted.

Whatever the intended application, the ambition to do what is probably impossible -- converting a human judgment of many sophisticated cultural, ethical and developmental matters into a cheap and mass-scale automated “decision” -- may be a dramatic attempt to fit the current classification regime to a task which it possibly cannot meet, and which may undermine the balance of matters required under the current regime.

Classification decisions involve, in their essence, a human judgement about the nature and intent of the content, its context, the spread and balance of community sentiment about such content in its context, and its suitability for people of different ages. For instance, some classifications refer to these judgements: Refused Classification and other higher classifications use the terms “offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified”, or more commonly, “in a way that is likely to cause offence to a reasonable adult”.

More generally, the Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 11 sets out a range of competing matters to be taken into account in classifying the various works. The National Classification Code 2005 (Cth), cl 1. requires classification decisions to give effect, to the degree possible, to a range of potentially conflicting principles. Under the legislation all of these matters must be taken into account in classification decisions, on a case by case basis, by a trained and professional independent classifier at the Classification Board.

This is the nature of the negotiated and publicly accepted basis for classification and censorship in Australia. The Classification Board, using skilled and impartial expert trained classifiers, uses their skill and judgement to apply these criteria for each classification. This allows for the wide range of different types and contexts of works, and ambiguities around unpopular or controversial material, while enabling in particular parents to draw useful

guidance from these assessments.

The Classification Tools model appears potentially inimical to this approach, depending on what methods it uses. 28

26. Ibid., p. 3. 27. Ibid. 28. University of New South Wales, Cyberspace Law and Policy Community, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill

2014, [2014], accessed 29 July 2014.

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Further analysis from this submission is provided below under the heading, Key issues and provisions.

The Media Classifiers’ Association of Australia (MCAA) welcomes the introduction of a classification tool for use by the mobile and online games industry to classify simple mobile phone games and applications which lack realism, emotional impact and narrative complexity. However, MCAA considers a questionnaire-style classification tool (such as the IARC questionnaire) unsuitable for classifying films (including television programs). The submission states:

The tool is unsuitable as accurate classification and consumer advice requires careful consideration of a program in full. It is not only an assessment of impact of the six classifiable elements (themes, violence, sex, language, drug use and nudity), but also an assessment of the importance of context.

The MCAA considers that films and TV programs should continue to be classified by Classification Board members and professional TV Classifiers using the existing classification tools. 29

Both Family Voice Australia and the Australian Christian Lobby (ACL) are not critical of a classification tool regime per se, but question the regime proposed because it imposes no upper limit on the classification levels that such tools could be used to classify. The ACL submission states:

This will enable the use of tools to classify certain content and assist in classifying a greater amount of content that the Classification Board is currently unable to classify. As this will result in less unclassified but widely available material in the marketplace, this is generally a positive move which ACL supports.

However, the bill imposes no limit on the classification levels that such tools could be used to classify. Potentially, content likely to be rated MA15+, R18+, or higher could be classified using these tools. Classification tools could be authorised for the pornography industry to classify films as X18+ or higher. The pornography industry has a strong vested interest in such decisions and has a history [of] breaching classification regulations. For example, the industry has routinely failed to comply with call-in notices. In 2010, in answer to questions on notice, the Classification Board revealed that 858 items “mainly concerned with sex or sexualised nudity” were called in and not one was submitted for classification.

30

Both Family Voice Australia and the ACL recommend that Schedule 1 of the Bill be amended to limit the classification tools that could be authorised to those used only at a lower classification level than MA+ for films and computer games and Category 1 - Restricted for publications. They also recommend that the tools should not be able to be authorised for full length feature films which should continue to be classified by the Classification Board.31

It is notable that the Australian Council on Children and the Media (ACCM) would disagree with this recommendation— it is opposed to any scheme that places the classifications of materials at the lower levels in a self-regulated system without full and public scrutiny of such a scheme. ACCM concludes:

There need to be more safeguards and review mechanisms for any automated system than appear to be provided. 32

ACCM holds strongly to the view that for the everyday protection of the child audience, it is vital that content is accurately classified at the G, PG and M levels. Such accurate classification is dependent on knowledge of child

29. Media Classifiers’ Association of Australia. Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014, [2014], accessed 29 July 2014.

30. Australian Christian Lobby, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014, 1 May 2014, accessed 29 July 2014. 31. Family Voice Australia, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014, 15 April 2014, accessed

29 July 2014. 32. Australian Council on Children and the Media, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014, April 2014, accessed

29 July 2014.

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development and current research. This is knowledge that is not generally available at the general industry level.33

Financial implications The Explanatory Memorandum to the Bill states that the implementation of these reforms will be met from within existing resources.34

Statement of Compatibility with Human Rights and Parliamentary Joint Committee on Human Rights 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 the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).The Government considers that the Bill is compatible.35

Similarly, the Parliamentary Joint Committee on Human Rights considers that the Bill does not give rise to human rights concerns.36

Key issues and provisions Schedule 1—Classification tools Part 2 of the Classification Act deals with classification of publications, films and computer games. Item 4 will insert into Part 2 new Division 2AA entitled ‘Classification by approved classification tools’, containing proposed sections 22CA to 22CJ. The central provision is proposed section 22CA.

Proposed subsection 22CA(1) will allow the Minister to approve the use of a classification tool to classify any combination or class of publications, films and/or computer games (known as relevant material). The tool, once approved, is known as an approved classification tool (proposed subsection 22CA(2)). An approved classification tool will be subject to any conditions outlined in the Minister’s approval for that tool (proposed subsection 22CA(3)). For example the tool could be approved subject to conditions such as: the tool is for use in relation to material likely to be classified no higher than M; the tool is for use of classification of computer games.37

The Bill does not define an approved classification tool, although the Explanatory Memorandum states such a tool could take the form of a questionnaire and could be on a website or in the form of a computer program or other interface which allows a person to provide information regarding the relevant material. In response, the tool will deliver a classification decision and consumer advice for the relevant material.38 The Minister’s second reading speech states that classification tools could be developed by Government, industry or other classification bodies overseas. 39

Proposed subsection 22CA(4) provides that the Minister, in determining whether to approve a classification tool, must consider any matters specified in written guidelines made by the Minister.

Proposed subsection 22CA(5) provides that the Minister must not approve a classification tool unless it will produce an Australian classification for the relevant material, determine consumer advice and notify the decision and consumer advice to the Director of the Classification Board.

33. Ibid. 34. Explanatory Memorandum, Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014, op. cit., p. 3. 35. The Statement of Compatibility with Human Rights can be found at pages 4-11 of the Explanatory Memorandum to the Bill. 36. Parliamentary Joint Committee on Human Rights, Fifth report of 2014, The Senate, Canberra, March 2014, p. 27, accessed 17 July 2014.

37. Explanatory Memorandum, p. 14. 38. Explanatory Memorandum, p. 14. 39. M Keenan, ‘Second reading speech: Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014’, House of Representatives, Debates, 19 March 2014, p. 2384, accessed 30 July 2014.

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The approval of a classification tool given by the Minister under subsection 22CA(1) is not a legislative instrument. Neither are the guidelines made by the Minister under subsection 22CA(4) a legislative instrument (proposed subsections 22CA(6) and (7)).40

Proposed section 22CB will enable the Minister to vary or revoke the approval of a classification tool, either having regard to the guidelines or any other relevant matter. Such a variation or revocation takes effect at the time specified in the instrument, which must not be prior to when the instrument is made.

Proposed sections 22CC, 22CD and 22CE, deal with Ministerial power under section 22CA and will ensure that the Minister may, among other things, enter into a contract or become a member of a corporation for the purpose of using or developing an approved classification tool.

Proposed sections 22CF, 22CG and 22CH deal with the process of classification using approved classification tools. In particular, proposed subsection 22CF(1) states that unclassified material that is classified using an approved classification tool, where any prescribed fee has been paid, is taken to have been classified by the Board. Proposed subsection 22CF(3) clarifies that a decision produced by an approved classification tool will not be valid if the decision does not comply with a condition that was imposed in the approval of the classification

tool. 41 A decision of an approved classification tool takes effect when it is included in the National Classification Database42 (or any subsequent register) (proposed subsection 22CF(4)). Proposed subsection 22CF(5) specifies that consumer advice which is determined by the approved classification tool will be taken to be consumer advice determined by the Classification Board.

Section 22CG establishes that a person may apply to the Director of the Classification Board for a certificate for a classification decision that has been produced by an approved classification tool.

Proposed subsection 22CH(1) will give the Classification Board the discretion to revoke a classification decision produced by an approved classification tool if the Board is of the opinion that it would have given the material a different classification or assigned different consumer advice. The Board may revoke a classification decision on its own initiative or on application (proposed subsection 22CH(2)). If the Board decides to revoke the classification decision produced by the approved classification tool, the Board must classify the relevant material

(proposed subsection 22CH(4)).

Section 22CJ will enable the Minister to delegate his or her powers relating to classification tools to the Secretary of the Department, except for the power to make guidelines that specify the matters to be taken into account when approving a classification tool.

General comments on Schedule 1 Ministerial guidelines

The Scrutiny of Bills Committee has raised questions regarding the Ministerial guidelines made under proposed subsection 22CA(4) and questions whether they are an appropriate delegation of legislative power. The Committee would prefer that important content such as these guidelines should be included in primary legislation unless a compelling justification for the use of delegated legislation is provided. The Committee states that, in this instance, ‘the reasons why the considerations relevant to this question cannot be included in the legislation are not addressed in the explanatory memorandum’. The Committee therefore seeks the Attorney-General's advice as to the justification for the proposed approach.43

The Scrutiny of Bills Committee had a further question as to why the guidelines made under subsection 22CA(4) are not to be a legislative instrument. Contrary to what the Explanatory Memorandum states, it is the Committee’s view that the guidelines arguably are of a legislative character. In line with the definition in

40. See below for Scrutiny of Bills Committee questions regarding why the guidelines are not in the primary legislation or at least subject to the Legislative Instruments Act 2003. 41. For example, if an approval imposes a condition that the classification tool may only be used to classify computer games that are not classified higher than M, and the tool purports to classify a computer game MA 15+, the decision will not be valid under the Classification Act.

Explanatory Memorandum, op. cit., p. 15. 42. Once a product has a classification, information about that product appears on the National Classification Database. This is a database hosted by the Australian Government on the Australian Classification website at www.classification.gov.au. Information about classification is public information, freely available to anyone. 43. Senate Standing Committee for the Scrutiny of Bills, op. cit., p. 3.

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subsection 5(2) of the Legislative Instruments Act 200344 the guidelines would provide for matters which must be considered by the Minister when making approval decisions. The relevant matters that must be considered affect the making of decisions and, thus, indirectly affect the interests of persons who rely upon, or wish to rely upon, the operation of particular classification tools. The guidelines also directly impose an obligation on the Minister in making approval decisions. The Committee argues that the Explanatory Memorandum does not provide an adequate explanation for its conclusion that the Guidelines do not come within the definition of legislative instruments and therefore seeks the Attorney-General's advice as to the justification for the conclusion that subsection 22CA(4) guidelines are not legislative instruments subject to the Legislative Instruments Act and its disallowance and sun setting provisions. 45

Several submissions to the Senate inquiry into the Bill raise questions about whether the provisions in Schedule 1 include appropriate accountability and transparency mechanisms.

For example, members of the Cyberspace Law and Policy Community argue the Minister has too wide a discretion to approve any tool, and that there is also no indication how the tools would operate, nor the nature, inputs or rules of the processing algorithms that would give an ‘automated classification’. In their submission they argue that, while some uses and mechanisms for creating and operating classification tools may be acceptable and fit within the ambit of the Classification Act, the Bill and its explanatory materials do not constrain tools to do this and furthermore there is no indication if there is anything other than the Minister’s discretion to constrain tools to within these limits. For them, the discretion is too broad.46 The submission also includes a substantial list of features that would, in their view, enhance the provisions in this Schedule.47

Schedule 2—Referral of material to law enforcement agencies Item 2 of Schedule 2 inserts proposed section 88B into the Classification Act. It provides that if the Secretary of the Department (or delegate) believes that an unclassified film or an unclassified computer game would likely be classified RC,48 then the Secretary may provide a copy of this material to a relevant law enforcement agency49 without first having the content classified by the Classification Board.

This power does not limit other powers of the Secretary or delegate to provide other information or material to law enforcement authorities or other bodies (proposed subsection 88B(3)). The Explanatory Memorandum notes that section 88B is included for clarity only and will not limit any existing discretion the Department has to refer other types of material to law enforcement authorities. For example, the Department may also refer material to law enforcement authorities if the material is likely to be classified X 18+ and is available for sale in the States, or is classified RC and is available for sale. 50

General comments on Schedule 2 Both the Western Australia and South Australia Police support Schedule 2 saying it is a positive step if it results in a timelier referral of RC material to police51 and would be advantageous in situations involving child sexual

44. Subsection 5(2) of the Legislative Instruments Act 2003 provides that an instrument is taken to be of a legislative character if ‘(a) it determines the law or alters the content of the law, rather than applying the law in a particular case; and (b) it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right’.

45. Senate Standing Committee for the Scrutiny of Bills, op. cit., p. 3. 46. Cyberspace Law and Policy Community, op. cit. 47. Ibid. 48. The National Classification Code provides that certain types of publications, films and computer games must be refused classification. Materials

which are classed as ‘Refused Classification’ are effectively banned since, under state and territory laws, it is prohibited to sell, distribute or publicly exhibit materials which have been refused classification. Films must be refused classification if they (a) depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified; or (b) describe or depict in a way that is likely to cause offence to a reasonable adult, a person who is, or appears to be, a child under 18 (whether the person is engaged in sexual activity or not); or (c) promote, incite or instruct in matters of crime or violence. National Classification Code, op. cit. Similar criteria exist for RC publications and computer games. In addition section 9A of the Classification Act provides that publications, films or computer games that advocate terrorist acts must be classified RC. 49. The law enforcement agencies are: the Australian Federal Police; the police force of a state or territory; or an authority or person responsible

for law enforcement in a foreign country. 50. Explanatory Memorandum, p. 18. 51. Western Australia Police, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014, 16 April 2014, accessed

29 July 2014.

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abuse content where prompt investigation is a foremost consideration.52 Similarly, the ACL supports this Schedule.53

However, other submissions question this amendment, arguing that its scope is too broad. The Explanatory Memorandum’s justification for Schedule 2 cites the need to remove serious content such as child abuse material.54 The Cyberspace Law and Policy Community argues that prompt law enforcement responses that are desirable and appropriate in relation to child abuse material will not be appropriate to all material that would be classified Refused Classification. They note also that the ALRC proposed eliminating the current Refused Classification category and recognising a narrower ‘prohibited category’. Their submission therefore recommends:

• implementing the ALRC recommendation regarding a prohibited category and

• removing the general referral of the current Refused Classification category from Schedule 2.55

Schedule 3—Exemptions Schedule 3 deals with exemptions from classification. Section 5B of the Classification Act sets out in two separate tables the different categories of films and computer games that are exempt from classification. These exemptions do not apply to material that would be likely to cause the film or computer game to be classified M or a higher classification. Currently, eight of the 13 exempt film categories state that a film must ‘wholly’ comprise the genre to be exempt: current affairs; hobbyist; sporting; family; live performance; musical presentation; religious; and community or cultural.

Item 2 expands the scope of these eight categories so that films in these categories are exempt if they are either wholly or mainly about that particular genre.

Item 3 will further expand the exemptions by adding two new categories of exempt films—social sciences and natural history. Natural history is not defined whereas social sciences is defined as economics, geography, anthropology, linguistics and other fields specified by instrument (proposed section 5C, item 4). The Explanatory Memorandum states that the definition is necessary to exclude fringe elements, such as the occult or astrology.56 However, as members of the Cyberspace Law and Policy Community note, social science includes a diverse array of non-fringe subjects beyond the list specified in the legislation. Their submission therefore recommends either a longer list than that proposed or that it be left to the ordinary definition of social science.57

The amended section 5B will be repealed (item 17) and reinserted as new section 6B (item 18)— the purpose of renaming being to reorganise and group together the provisions relating to content that is exempt from classification in new Part 1A—Exemptions (see below).

Existing Division 6 of Part 2 of the Classification Act provides for certificates for exempt films and computer games and sets out the requirements that apply to the request for such a certificate. Item 10 will repeal this Division, the effect being that an applicant will no longer be able to apply for an exemption certificate. Items 5 to 9 are consequential amendments flowing from item 10, and item 11 is a transitional provision to deal with applications for exemption certificates that were made prior to commencement. The effect of these amendments is that content providers will not be able obtain exemptions under section 6B from the Classification Board—the onus will be on the content provider, producer or distributor to make their own assessment about whether their content falls within the exempt categories outlined above and can be distributed without being classified.58

Item 18 will insert new Part 1A—Exemptions after Part 1 of the Classification Act. The new Part 1A will bring together all provisions dealing with exemptions and consist of two Divisions:

52. South Australia Police, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014, 5 May 2014, accessed 29 July 2014. 53. Australian Christian Lobby, op. cit., p. 3. 54. Explanatory Memorandum, p. 18. 55. Cyberspace Law and Policy Community, op. cit. 56. Explanatory Memorandum, p. 21. 57. Cyberspace Law and Policy Community, op. cit. 58. Explanatory Memorandum, p. 7.

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• Division 1 containing new section 6B (replacing amended section 5B as discussed above) which sets out in table form the categories for exempt films and exempt computer games

• Division 2 comprising new section 6C to section 6H which establishes a scheme for determining when publications, films and computer games are subject to a conditional cultural exemption.

Conditional cultural exemptions

There are to be two types of conditional cultural exemptions, namely those given to specific ‘registered events’ and those given to an ‘approved cultural institution’.

Proposed section 6C will establish when a conditional cultural exemption will apply for the showing59 of material that forms part of a registered event. A ‘conditional cultural exemption’ will apply if:

• the showing forms part of a ‘registered event’ (as defined in proposed section 6D)60

• the material would not likely be classified RC, X 18+ or Category 2 restricted

• relevant age restrictions are imposed for the showing

• the material has not already been shown more than a specified number of times as set out in the rules

• information about the content is given to those present at the showing and

• the showing satisfies the relevant conditions contained in the exemption rules.

Proposed section 6E establishes when a conditional cultural exemption for the showing61 of material will apply to an approved cultural institution. A ‘conditional cultural exemption’ will apply if:

• the showing forms part of an event organised by an ‘approved cultural institution’ (as defined in proposed section 6F)62

• the material would not likely be classified RC, X 18+ or Category 2 restricted

• relevant age restrictions are imposed for the showing

• information about the content is given to those present at the showing and

• the showing satisfies the relevant conditions (if any) contained in the conditional cultural exemption rules.

Conditional cultural exemptions given to specific ‘registered events’ will have a limited time-frame and limited number of showings. In contrast, approved cultural institutions will not be required to register individual exhibits or be subject to the same limitations (such as the duration of an exhibition or the number of times unclassified content may be shown as part of an exhibition). Otherwise, proposed section 6E is drafted in consistent terms with proposed section 6C, discussed above.

Proposed section 6G will enable the Minister, by legislative instrument, to make rules or conditions that a registered event or an approved cultural institution must satisfy in order to be subject to a conditional cultural exemption. The Scrutiny of Bills Committee notes that the Explanatory Memorandum does not give details or examples of the sort of matters that it is envisaged will be covered in these rules. The Committee therefore seeks the Attorney-General's further explanation of the nature and scope of matters to be dealt with in the rules so as to better assess whether this is an appropriate delegation of legislative power.63

Proposed section 6H will give a power to the Director of the Classification Board to waive or vary provisions that apply in relation to conditional cultural exemptions. In particular proposed subsection 6H(1) will allow the Director to: exempt a film, computer game or publication, an event or an organisation from any or all provisions

59. Showing means a screening, demonstration or exhibition. 60. Amongst other things the event must relate to the display, screening, demonstration or exhibition of films, computer games and/or publications and must be of a medical, scientific, educational, cultural or artistic character. 61. Showing means a screening, demonstration or exhibition. 62. Amongst other things an organisation will be an approved cultural institution if the organisation was formed and continues to conduct activities

of an educational, cultural or artistic nature, and has a sound reputation. Institutions will not qualify as approved cultural institutions if they show unclassified publications, films or computer games that would likely be classified RC, X 18+ or Category 2 restricted. Subsection 6F(2) specifies that certain government bodies will also be approved cultural institutions. 63. Senate Standing Committee for the Scrutiny of Bills, op. cit., p. 4.

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in new Division 2 of Part 1A or in the conditional cultural exemption rules. The Director may also declare that any or all provisions in Division 2 or in the conditional cultural exemption rules apply subject to specified variations. Such an exemption or variation may only be made on application by the relevant organisation (proposed subsection 6H(2)). The exemption or variation made is not a legislative instrument for the purposes of the Legislative Instruments Act (proposed subsection 6H(4)). The Explanatory Memorandum justifies this for several reasons including:

• the exemption or declaration applies only in relation to a particular item, event or organisation

• it will be valid for a short time only, will be made on an ad hoc basis, is of a minor nature and needs to be done efficiently, cheaply and often quickly

• no public purpose is served by requiring that an exemption or declaration be published

• such decisions by the Director will be reviewable by the Administrative Appeals Tribunal (proposed subsection 6H(6)).64

It is of note that the Scrutiny of Bills Committee accepts the ‘compelling justification’ provided in the Explanatory Memorandum for why it is not necessary or appropriate for such decisions to be subject to the requirements of the Legislative Instruments Act.65

Proposed subsection 6H(5) provides a broader exemption than subsection 6H(1) and in contrast is subject to the Legislative Instruments Act. In particular proposed subsection 6H(5) enables the Director, by legislative instrument, to provide exemptions or variations in relation a specified class of material, events or organisations. The Explanatory Memorandum states that in contrast to decisions made under subsection 6H(1), it is appropriate for such declarations or variations made under subsection 6H(5) to be subject to the Legislative Instruments Act because they affect the rights of more persons, they do not need to be responsive to the demands of applicants and there may be greater public interest in their publication.66

General comment on Schedule 3 While many submissions support Schedule 3, Family Voice Australia and the ACL have reservations about the conditional cultural exemption. They argue:

it is reasonable that films and computer games shown at film festivals, art galleries and other cultural institutions be exempt from classification if their content is likely to be classified as lower than MA15+. However, if their content is likely to be MA15+ or R18+ then it is more appropriate to require that the film or computer game be classified.

This will ensure that material exceeding the highest classification for each category is not exhibited at all and that material that is MA15+ or R18+ is subject to appropriate legal restrictions. 67

Schedule 4—Modifications Section 21 of the Classification Act provides that where classified films or classified computer games are modified, they are considered declassified and require reclassification. There are however exceptions to this modification rule as set out in subsection 21(2) so that certain changes (such as the addition of different types of navigation functions, the addition of subtitles , captions, et cetera) are not considered modifications and do not require reclassification.

Item 3 amends subsection 21(2) to add another exception, by providing that reclassification would not be necessary for format changes from 2D to 3D (or vice versa) providing the change would not cause a different classification.

Item 4 inserts proposed subsection 21(3) to enable the Minister to specify, using a legislative instrument, additional kinds of modifications which are exceptions to the rule that classified films or computer games, as modified, become unclassified when a modification is made. The rationale for this amendment is that:

64. Explanatory Memorandum, p. 27. 65. Senate Standing Committee for the Scrutiny of Bills, op. cit, p. 5. 66. Explanatory Memorandum, p. 28. 67. Family Voice Australia, op. cit., p. 4. Australian Christian Lobby, op. cit., p. 2.

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With technological advances and rapid changes to the kinds of modifications which are made to films and computer games, it is appropriate to include a power to make a legislative instrument for this purpose. In particular, computer games are becoming increasingly mutable and it is both unfeasible and unnecessary to require the vast amount of (low risk) modified content to be classified separately by the Board.

The power to make a legislative instrument will be necessary to ensure that the Classification Act is equipped to deal with rapidly-evolving technology and delivery mechanisms. 68

Item 1 will insert proposed section 20A to address a legislative anomaly relating to modified content being treated differently under the Classification Act depending on whether the modification is made before or after the content is classified. Proposed subsection 20A(1) provides that if an unclassified film or unclassified computer game is modified, and the film or computer game is afterwards classified in unmodified form, the modified version will be taken to have the same classification as the unmodified version—provided that the

modification would be covered by subsection 20A(2). Proposed subsection 20A(2) will enumerate particular kinds of modifications drafted in the same terms as amended subsection 21(2) (discussed above).

Schedule 5—Determined markings and consumer advice The various categories of classification for films, publications and computer games are set out in section 7 of the Classification Act. Rules regarding the markings to be used for these classifications are in section 8. In particular subsection 8(1) provides that the Minister may by legislative instrument determine markings for each type of classification, these markings giving information about the classification and the manner in which the markings are to be displayed. Subsection 8(1A) provides that the Minister must consult with state and territory Ministers before making a determination.

Item 3 will repeal existing subsections 8(1) and (1A) and insert new subsections 8(1), (1A) and (1B) to empower the Minister, by legislative instrument, to determine:

• markings related to the classification categories

• principles for the display and manner of display of those markings and

• principles for the display and manner of display of consumer advice.

The Explanatory Memorandum states the intention is that a legislative instrument will be created that includes high level principles for the display of classification markings and consumer advice. The new determination will replace the current rules relating to the display of classification markings, which are said to be highly detailed and prescriptive.69 It is of note that there is no longer an obligation to consult with state and territory Ministers about such a determination.70

Item 4 inserts proposed subsection 8(3A) stipulating that classified films, computer games and publications as well as advertisements for those products must display markings and consumer advice in accordance with the principles determined by the Minister under new subsection 8(1). A note at the end of the subsection explains that the consequences of not displaying markings and consumer advice correctly are to be found in complementary state and territory legislation. Subsection 8(3B) (also item 4) has been included to give subsection (3A) extended Constitutional reach, so that it applies beyond the Australian Capital Territory. These provisions are not intended to exclude or limit the concurrent operation of state and territory offence provisions that impose requirements relating to the display of markings and consumer advice.

Existing section 20 stipulates that the Board is required to provide consumer advice about content when classifying films and computer games at all levels from PG, M, MA, 15+, R 18+ or X 18+. Consumer advice for G material is currently discretionary. Item 5 will amend section 20 to also require the Board to determine consumer advice in relation to films or computer games that are classified G.

68. Explanatory Memorandum, p. 31. 69. Ibid, p. 33. 70. This is in line with of the SCLJ communique that the Commonwealth Minister be empowered to determine principles in regard to classification markings. SCLJ, Communique , paragraph (c).

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General comment on Schedule 5 There are a range of views about item 5. Some submissions are positive, others do not express a view, while some question the need for it. For example, MCAA believes that the use of consumer advice for programs classified G would be counterintuitive and confusing to consumers. It argues that that consumer advice at G should remain a discretionary process by the Classification Board and used in the rare circumstances where a warning may be appropriate.71 Family Voice Australia holds a similar view.

Concluding comments The Bill has bipartisan support in the Parliament and, as required by the NCS, has the agreement of the state and territories Ministers of the Standing Council on Law and Justice. The reforms are modest with the most significant, and arguably most contentious, being the introduction of automated classification tools, although the detail of these tools is still to be determined. Given the potential for these tools to replace the traditional forms of classification, the questions raised by the Scrutiny of Bills Committee and some submitters to the Senate inquiry appear to be valid. Parliament may wish to ask if the level of Ministerial discretion is appropriate and whether the Bill actually provides enough detail about transparency and accountability mechanisms that might apply to ensure that the tools are acceptable and appropriate within the Classification Act.

Seen in the wider context of the ALRC report and recommendations, the Bill is less significant. There are another 51 ALRC recommendations for further reform-one key proposal being the creation of a new NCS to regulate the classification of media content based on a new Classification of Media Content Act. Implementing these recommendations would be challenging and a test of the political will of the Commonwealth Government to persuade state and territory Ministers to create an effective national scheme as envisaged by the ALRC.

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71. Media Classifiers’ Association of Australia, op. cit.

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