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Legal and Constitutional Affairs Legislation Committee
29/05/2013
Estimates
ATTORNEY-GENERAL PORTFOLIO
Classification Board

Classification Board

[17:27]

CHAIR: We will get the Classification Board and the Classification Review Board back. We do not have the Classification Review Board.

Senator HUMPHRIES: My apologies for not being available earlier today when you were going to appear. I am grateful that you are able to remain here to answer a few questions. I appreciate that. How many video games were submitted to OFLC in the last year for classification?

Ms O'Brien : In the last financial year?

Senator HUMPHRIES: You keep your records by financial year, don't you?

Ms O'Brien : We do. I actually have a brief opening statement. Is it helpful if I provide that?

CHAIR: Sorry, Ms O'Brien, I did not ask you that. Let us have that from you.

Ms O'Brien : Thank you, senators, for the opportunity to make an opening statement at this my first estimates hearing since my appointment as director from 1 January 2013. I am very conscious that I have big shoes to fill, following on from the previous director, Donald McDonald, who undertook this role with distinction. I would also like to place on record my gratitude to the members of the Classification Board, who supported me in my transition to this new role.

Any change of leadership can be demanding and the board has risen to this challenge extraordinarily well. I would also mention at the outset that the Attorney-General's Department is currently chairing a panel to fill the currently vacant deputy position and the process is well advanced. Several board members, including Mr Gamieldian beside me, have been acting in this role since the beginning of the year. I extend my thanks to them.

I will give you an overview of the Classification Board's work since I took over at the beginning of the year. To 30 April 2013 the board has made 3,801 classification decisions for film, computer games and publications. All decisions this year have been made within this statutory time frame of 20 business days. Perhaps the most significant change that has occurred in the classification sphere since I have been appointed director is the establishment of the new 'adult' category for computer games, which commenced on 1 January 2013.

The implementation of this change, the first major change to the National Classification Scheme in many years, has gone extremely well. Between 1 January and 14 May 2013 the board classified 15 computer games as R 18+. The first computer game to be classified R 18+ was Ninja gaiden 3: razor's edge. To recognise this milestone I gave a statement and an interview to the media about the game classification and outlined some of the reasons for the decision. Importantly, in the same period, games have continued to be classified in the MA 15+ category—24 and counting. Computer games will continue to be refused classification if they contain content that is very high in impact which falls outside the R 18+ category.

The other major event which occurred in the first part of this year was the Standing Council on Law and Justice in Darwin in April, where the ministers responsible for classification from the Commonwealth, states and territories agreed to implement the first tranche of reforms arising out of the Australian Law Reform Commission review of the National Classification Scheme. Ministers agreed to implement the first seven recommendations made by the ALRC. I understand that the Attorney-General's Department is now working on legislation to implement those reforms. I and the board look forward to continuing to work positively with the department on these and future reforms.

Finally, I would like to touch on the issue of enforcement of state and territory classification laws. As senators are aware, the board has no enforcement powers. Responsibility for responding to breaches of classification laws under the current National Classification Scheme rest with state and territory enforcement agencies, usually the police. Many of these agencies give enforcement of classification laws a low priority. Despite this, since 1 January, I have exercised my power to call in unclassified content that I believe should be classified—150 films and 14 publications to date. These items have been called in from several different distributors. As senators have been advised at previous hearings, most often those call-in notices are either not complied with or ignored. The Attorney-General's Department refers all such noncompliance to the relevant law enforcement agency and receives biannual reports from each jurisdiction about action taken. Because of continuing low levels of action, I understand the department has recently written to state and territory enforcement agencies offering further support to assist in following up on those referrals. Thank you. I look forward to your questions.

Senator HUMPHRIES: Thank you for that opening statement, Ms O'Brien. You mentioned in that opening statement that from the beginning of the new classification to 14 March you had classified 15 games as R 18+. Were any games submitted during that time for classification that you classified as MA 15+?

Ms O'Brien : Yes. We had 24 games classified as MA 15+.

Senator HUMPHRIES: These are obviously games in a genre that is fairly attractive to young people, often quite violent and, I assume, fall close to a borderline between MA 15+ and R 18+. Is it possible to say whether the 15 games you classified as R 18+ would likely have been refused classification under the previous regime?

Ms O'Brien : That is a difficult question. Each game is considered on its merits. The new classification guidelines for computer games certainly have more prescriptive requirements, particularly around sexual violence and some other elements of violence, that would cause a game to be classified as R 18+. It is difficult to say how those same games would have been classified under the previous guidelines. They would need to be considered under those guidelines and clearly we are not using them anymore.

Senator HUMPHRIES: Can you provide, perhaps on notice, a breakdown of, let us say for last financial year as a comparison, how many video games were submitted and how many were put into which classifications, and for the first whatever months of this year—let us say the first three months of this year—how many in those same classifications were submitted and how many were allocated to which classification.

Ms O’Brien : Just to be clear: you want to know, of the games that we have classified under the new guidelines, what the decisions where for each of those games?

Senator HUMPHRIES: Yes, please. I want to see how the R 18+ classification is affecting the trend of classification. We can see what we did for all the video games submitted and compare it with those submitted since the 1 January this year as a comparative period. How many games submitted since the first of January have been refused classification?

Ms O’Brien : No games have been refused classification in that five-month period.

Senator HUMPHRIES: Have all of the games that have have been submitted since 1 January been games that are available in other parts of the world?

Ms O’Brien : I cannot say categorically that that is the case or is not the case. Our job as the classification board is to classify what comes before us. Even if classification databases overseas show games with the same name there is no guarantee that they are, in fact, the same game unmodified, so I really cannot comment on whether the games we are seeing are the same games that may be available overseas.

Senator HUMPHRIES: Since the new classifications been introduced, have any games that were already classified as MA 15+ been reclassified?

Ms O’Brien : No. No games have been reclassified.

Senator HUMPHRIES: It is possible to do that, isn't it?

Ms O’Brien : It is possible, and there are certain provisions in the act, but no computer games has ever been reclassified under the national classification scheme. The general practice has been when there has been a major change to the national classification scheme that this is not reason, in and of itself, to reclassify content which has previously been classified. That is because classification decisions made under the classification laws of the day remain valid decisions. Changes take effect prospectively in order to provide certainty for the industry and the public alike.

Senator HUMPHRIES: I know, but the owner of a game or a title could come to OFLC and say, 'We would like to reclassify this because we think it falls under a different category in the new rules.'

Ms O’Brien : Games can only be reclassified after two years have lapsed between the original decision and a reclassification. That is actually specified in the act. The board may act at the request of the minister or on its own initiative to reclassify—it is not possible, for example, as you in your example, for a distributor to ask for a game to be reclassified.

Senator HUMPHRIES: You may have seen an article that appeared in the Herald Sun on Friday, 10 May, in which the views of Professor Elizabeth Handsley of Flinders University, President of the Australian Council on Children and the Media, were reported. According to this report, which apparently relates a study by the Australian Council on Children and the Media, there has been an increase in the number of supposedly violent games that are being classified MA 15+ that would have been classified with the R 18+ based on what has happened to those same games overseas. I do not know how the study actually undertook that work of assessing whether the equivalent R 18+ type game overseas is actually the same as the MA 15+ game that was classified here. Have you seen that report and do you have a view on the report?

Ms O'Brien : Yes, I did see that media article. I think the first important point to make in relation to schemes that operate overseas is that the board classifies material that comes before it using our own classification laws, so the classification act, the National Classification Code and the classification guidelines. Different countries have different classification outcomes for different games based on different classification standards, laws and cultural norms. Computer games classified overseas operate under different systems to ours. Nor can you assume that the games that they are classifying are actually the same games that we are receiving to classify, because sometimes distributors and publishers will modify, change a game when it submits it to the Australian Classification Board. So I offer up those points in relation to some of the arguments put forward in relation to those overseas schemes.

Senator HUMPHRIES: I assume most of the games we are talking about would be manufactured or at least originate in the United States of America?

Ms O'Brien : The United States, parts of Europe. Japan is another leading country in computer games development.

Senator HUMPHRIES: And there are significant differences between their classification schemes for video games and ours, or are they essentially aligned pretty closely?

Ms O'Brien : There are significant differences. There are differences in terms of their classifiable elements. We have six classifiable elements: things like violence, nudity, sex and coarse language. They have a completely different range of classifiable elements under which they make their decisions. They also have different classification categories themselves. Their age brackets are different. Also, our scheme is different because the categories that we have at the MA15+ and R18+ level are legally enforceable, whereas the schemes you have mentioned overseas are voluntary schemes. So even though something may be classified overseas the equivalent of R18+, there are no laws to prevent a child from walking into a store and purchasing an R18+ equivalent game. So there are some significant differences.

Senator HUMPHRIES: So you would reject Professor Handsley's comment that it would appear that the new system has not resulted in a tightening up of the classification system at all?

Ms O'Brien : What I would say is that the board is applying the guidelines that have been given to us to apply. The fact that we have made decisions in both the MA15+ category and the R18+ category is evidence that we are using the guidelines as they are intended to be used, that both categories are legitimate categories and we are making the appropriate decisions against those guidelines.

Senator HUMPHRIES: I understand that once a game is approved and in the marketplace it is possible to get add-ons and updates over the internet to those games. So a person who is online can put their game onto their computer and they can get the online updates and add-ons to those games. I assume that, because that material is coming in over the internet, it is not classified by the Classification Board?

Ms O'Brien : Currently, strictly speaking, whether computer games are sold in a box, downloaded onto a console, on an app that is a computer game designed for a mobile phone, or played wholly online, they are subject to the National Classification Scheme. But, as censorship ministers have publicly acknowledged, most mobile and online games that are currently sold in Australia without an Australian classification are potentially in breach of state and territory enforcement laws. Thus, in 2011, censorship ministers decided on an interim solution to exempt mobile phone and online games from classification for two years, except games that are likely to be refused classification. This interim plan means that these computer games will continue to be available while longer term reforms are developed. The bill was introduced into parliament on 12 October 2012 and has been passed by the House of Representatives and is awaiting debate in the Senate.

Senator HUMPHRIES: So the games could be MA15+ but they could get beefed up, as it were, with online content at the moment and become effectively worthy of classification as R18+ or even possibly refused classification. And there is nothing really about our system as presently designed that could do anything about that.

Ms O’Brien : The department are looking at measures at the moment to address online and mobile games. The department may be able to assist more with information on that.

Senator HUMPHRIES: I know this is being looked at, so I do not really want to know what is being planned. I just want to be clear that, at the moment, it is possible that that can happen, is it not? You can get the online updates, which effectively raise the classification of what you are looking at and what you are playing with, and we do not have a way of stopping that at the moment. That is essentially right, is it not?

Ms O’Brien : Certainly add-ons and modifications are possible and, technically speaking, they are subject to the National Classification Scheme.

Senator HUMPHRIES: I will leave it there. Thank you.

CHAIR: Ms O'Brien, I thank you and your colleagues.