Australian Censorship Review

The Australian Government has launched a comprehensive review of the National Classification Scheme to be conducted by the Australian Law Reform Commission.

Attorney-General Robert McClelland has referred the Scheme to the Australian Law Reform Commission and asked it to conduct widespread public consultation across the community and industry.

The Government today released the final terms of reference for the review of the National Classification Scheme following community consultation.

The review will consider issues including:

• existing Commonwealth, State and Territory classification laws;
• the current classification categories contained in the Classification Act, Code and Guidelines;
• the rapid pace of technological change;
• the need to improve classification information available to the community;
• the effect of media on children; and
• the desirability of a strong content and distribution industry in Australia.

The Home Affairs Minister responsible for classification, Brendan O'Connor, said technology is fast moving and the review will examine how the classification can cater for further advances into the future.

A lot has changed in recent years. Australians now access content through the Internet and mobile phones and that poses challenges for the existing classification scheme.

We're also seeing the convergence of different technology platforms and the worldwide accessibility of some content, which also creates new concerns.

Australians need to be confident that our classification system will help them make informed choices about what they choose to read, see, hear and play.

The appointment of a new ALRC Commissioner to work on the review will be announced shortly. The ALRC has been asked to provide its final report by 30 January 2012.  See also Terms of Reference [pdf] .

Tasmanian Not So Liberal Senator Guy Barnett has received a mixed response to calls for the federal government to take over the classification and censorship powers of the states and territories.

Barnett canvassed his suggestion of a possible federal takeover at a hearing of the Senate Committee on Legal and Constitutional Affairs' inquiry into the Australian film and literature classification scheme.

Representatives of the Australian Mobile Telecommunications Association, Research In Motion and Telstra welcomed the prospect of more consistency and less duplication in the classification regime, although they indicated Senator Barnett's suggestion was novel .

Legal professionals Peter Arnold and Dr Sarah Ailwood questioned whether Senator Barnett's suggestion was constitutionally valid.

The Australian Law Reform Commission was currently investigating Australia's classification regime in a separate inquiry.

Australian artists could be forced to have their work checked by censors before being displayed. Some work could be blacklisted despite being legal, if nutter recommendations to a federal inquiry into Australia's film and literature classification scheme are accepted.

The Senate inquiry, launched by the nutter senator Guy Barnett, has heard submissions calling for any film containing full frontal nudity to be refused classification; artworks and books showing nudity to be classified; all artworks to be restricted to certain age groups; and that artistic merit should be abandoned when classifying art.

The executive director of the National Association for the Visual Arts, Tamara Winikoff, said many of the organisations that had made submissions to or spoken at the inquiry's hearings, and members of the inquiry, had tried to demonise artists and paint them as child pornographers.

We are particularly worried that artists might have to have all their work classified immediately, regardless of the material, she said. There is a sense [in the inquiry] that art is dangerous.

Senator Barnett, who chairs the inquiry, is a critic of the photographer Bill Henson, whose photograph of a naked 12-year-old girl sparked a ferocious debate in 2008. He questioned many of those appearing at the hearings about the Henson photographs.

The executive director of the Arts Law Centre of Australia, Robyn Ayres, said that: Classifying all artworks would create a huge workload for bureaucrats and impose heavy costs on artists who would have to pay for their work to be classified. It would create a huge hurdle for artists and it would create a chilling effect. We have already seen it with [the depiction of children in artworks]. Artists just don't want to be there ... there has been pressure taken over fairly innocuous work, she said, referring to the collapse of a charity auction for the Sydney Children's Hospital because hospital officials did not approve of a photograph of a six-year-old boy naked from the waist up.

The committee is to report by June 30.

Australia's censorship system is fundamentally flawed, it fails to protect children from pornography and it does not prevent the legal availability of graphic depictions of actual sex in some places, according to a Senate committee report.

It wants an overhaul of the classification system and more censorial rules introduced to pander to supposed community concerns about the sexualisation of society and objectification of women.

A truly national scheme would ensure explicit material that is banned in some states is not available in other parts of the country, most notably in the ACT and parts of the Northern Territory, it said.

It found that concerns about sexual violence were being ignored by the system, as was the general rule that an R18+ classification meant simulation, yes - the real thing, no . Instead, numerous films showing graphic sex had been rated R18+ and sold in some jurisdictions.

It raised concerns about restricted adult magazines being displayed in shops next to comics and DVDs for children.

It says that rules should be uniformly restrictive for all media, including mobile devices, while references to context should be removed given the committee's finding they were helping to push explicit material into lower classifications.

Self-regulation of complaints about ads would be retained, subject to an appeal right to the Classification Review Board, although industry groups opposed that call.

Offsite Comment: Who's for promoting porn?

25th June 2011. See article from smh.com.au

The Classification Board has delicately suggested to the commission that if the availability of X18+ material was made uniform across the country, police and customs could concentrate on stopping the really nasty stuff refused any classification at all.

An entirely sensible thing to do, but despite the stupidity of an often-flouted rule that prefers violence to sex, and which makes it criminal to sell films of people doing what people do, who wants to be seen as promoting porn? Civil libertarians, yes. Anyone else?

...Read the full article

The report, released last week by the Legal and Constitutional Affairs References Committee, says the defence of artistic merit is not enough to allow some controversial works of art to be exhibited, particularly when it comes to those that depict children.

Chairman Tasmanian and nutter senator Guy Barnett said the current classification system was broken and flawed and the recommendation was striving for uniformity across all media platforms. Visual arts should not be exempt from our criminal laws and our anti-pornography laws, he said.

Art Gallery of SA director Nick Mitzevich responded saying a one size fits all approach to classification might be damaging to the industry. Most of the visual arts industry censors itself and understands the moral compass of the industry, he said. I think there's little evidence to support such a draconian approach - a one size fits all. It seems it's bureaucracy out of control.

National Association of Visual Arts executive director Tamara Winikoff hoped the Federal Government would wait until the Australian Law Reform Commission's concurrent inquiry into the classification was handed down in January before entertaining the idea of a ratings system. She warned against putting visual arts into the same category as other media. Between all sorts of cultural productions there are similarities, but the way the work is seen and understood is really very different, she said: You can't just lump apples and oranges together.

kotaku.com.au writes:

The closing date Submissions to the Issues Paper for the Australian Law Reform Commission is July 15 yet, despite being open since the middle of May, there are currently only 80 completed submissions. Time is running out.

Let's get motivated! These are important issues, and paramount to the way classification will be rebuilt post the Australian Law Reform Commission's report early next year.

For details and submissions see:

• Make an online submission
• Read Issues Paper
• View public submissions received so far

Pirate Party Australia (PPA) has called for a wholesale overhaul of Australia's fundamentally broken classification system.

In its submission to the Australian Law Reform Committee National Classification Scheme review, PPA called for the introduction of a European PEGI-style or American ESRB-style model of voluntary classification for media and the abolition of the Refused Classification category.

As media converges and changes in the digital paradigm of the 21st Century, systems, laws and frameworks must adapt to these changes of environment, the submission reads.

The sheer speed that media is being created and distributed makes it extremely difficult, if not impossible, to manage in a proper and timely manner.

The sheer size and architecture of the internet makes any classification scheme entirely unenforceable and would simply penalise Australian companies attempting to compete in the global digital environment and Australian consumers who are forced to look overseas for their entertainment services.

...Read the full article

The Australian Law Reform Commissionis conducting a review of the classification system in Australia.

As part of this review, the ALRC will hold community focus groups to test the kind of content that may be permissible in higher level classification categories (MA15+ and above, including the Refused Classification category). This is a pilot project that will test a methodology for possible further assessment panels that might be held to determine community standards with regards to classification categories in the future.

The ALRC will convene two volunteer focus groups in Sydney at which participants will be asked to view and discuss films, computer games, publications and online content. NOTE: Participants will be asked to view material which they may find offensive, confronting and disturbing.

The Pilot will consist of two focus groups of 15 adults who represent a broad cross section of the Australian community. The ALRC seeks applications from members of the community to participate in this process.

Volunteers must be over 18 years of age.

Each focus group will be held on one day only for half a day. All groups will be held in Sydney on either Saturday 22 October, Monday 31 October, or Wednesday 2 November. You must be available to attend on one of these days.

Please complete the application form, and include a description comprising no more than 300 words outlining why you are interested in taking part in the focus groups. The ALRC wants to ensure that we include people from diverse communities and backgrounds and from all parts of Australia. You must also describe in your application how you believe you will deal personally with viewing and discussing the offensive and confronting material.

A limited number of volunteers will be selected to take part and will be notified by the ALRC no later than 14 October 2011. If you do not hear from the ALRC, you can presume that you have not been selected to participate at this time.

Participation in these focus groups is completely voluntary and no fee will be provided. However, the ALRC will cover reasonable costs that participants incur in order to attend the viewings and discussions, including economy airfares, one night's accommodation if necessary due to travel requirements, and taxi fares to and from the airport. Lunch on the day of the focus group will also be provided.

...See further details about application from alrc.gov.au

Clearly many Australians want to have their opinions heard on how, in the foreseeable future, official censorship in this country will be administered. The proof of that is that the Australian Law Reform Commission has received a record 2451 submissions to its inquiry into Australia's Classification Scheme.

About 10per cent of respondents were from industry groups who use the scheme to derive an income, while another 10per cent were from morals groups keen on restricting material they deem unworthy. Only about 1per cent of submissions were from civil-liberty groups who were trying to increase the amount of material available to the public. The rest of the submissions were from individuals with a wide variety of motives.

The morals and religious groups relied heavily on claims of being offended by certain material. They allege that certain types of information and entertainment are intrinsically offensive, in the same way they consider some things intrinsically evil. I don't consider being offended as relevant to the legislative framework and I question whether the Classification Act should take into account such personal value judgments.

...Read the full article

Professor Terry Flew, Commissioner in charge of the National Classification Scheme Review has said:

In an age of media convergence, Australia needs a 21st century classification system that is more platform-neutral, concentrates government regulation on media content of most concern to the community, and a system that can be adapted to accelerated media innovation.

The goals of classification in balancing individual rights with community standards and protection of children remain vitally important, but we need a new framework that minimises costs and regulatory burden, and does not penalise Australian digital content industries in a hyper-competitive global media environment.

Drawing on over 2,400 submissions responding to its May Issues Paper, the Australian Law Reform Commission found that the existing classification framework is fragmented, approaches content inconsistently across media platforms, and is confusing for industry and the wider community.

The ALRC has now released the National Classification Scheme Review Discussion Paper [pdf] that puts forward 43 proposals for reform on which it is seeking public input.

These proposals focus on the introduction of a new Classification of Media Content Act covering classification on all media platforms, online, offline and television. The ALRC proposes what media content should continue to be classified, who should classify it, and who should have responsibility for enforcement.

The proposed new framework envisages:

• a greater role for industry in classifying content, allowing government regulators to focus on the content that generates the most community concern, and ensure access to adult content is properly restricted;
• content will be classified using the same categories, guidelines and markings whether viewed on television, at the cinema, on DVD or online;
• changes to classification categories, with age references, PG 8+ and T 13+ (Teen), to help parents choose content for their children;
• the Australian-wide Commonwealth taking on full responsibility for administering and enforcing the new scheme, rather than delegating this to individual states or territories.

Closing date for submissions is 18 November 2011.

Just recently the Classification Review presented its first proposals for discussion, proposals that completely surprised us, allowing for industry co-regulation and admitting the failures of the Classification Act.

Why was everyone making sense all of a sudden? We decided to talk to Terry Flew, chair of the Classification Review, for more insight. Meet the man who wants to revolutionise video game classification in Australia.

...Read the full article

Macquarie University hosted a public debate on the politics of play as part of the university's GAME festival, organised by the Interactive Media Institute. The debate considered issues surrounding the creation of an R18+ classification for video games in Australia and how interactive entertainment is treated compared to other forms of media such as films, as well as the impact of games on society.

One of the things that came out of the debate was the news that it seems that the already agreed introduction of an R18+ certificate for computer games looks unlikely to be introduced prior to the wider classification  review.

The final report of the classification review is expected to be delivered in the first quarter of 2012. Even if the recommended changes to the classification scheme are adopted, it still is probably going to take another couple of years before you're actually going to get an R18 you can apply for like a conventional classification that you have today, said David Emery from the Classification Branch, which is a public body supporting the operations of the Classification Board.

Emery said the legacy system of classification that Australia has been saddled with is a product of the R18 issue not being alive when the current classification scheme was created: Games are for kids, kids shouldn't have R material, and that's how it was; we've ended up with a legacy system... the fact of the matter is that it took a long time for a head of steam to get up from the gaming community to call for R18. It's really only been the last 18 months it's come onto the government's radar in a significant form.

The Australian government has published Final Agreed Draft Guidelines [pdf] that incorporates an adult R18+ rating into the censorship scheme  for games.

kotaku asked Brendan O’Connor, the minister in charge of censorship about the timetable for the introduction of the new guidelines.

David Emery, the Manager of Applications at the Classification Branch, has recently estimated that it would be at least two years until he received an application for an R18+ rated video game in Australia. O'Connor maintained that we wouldn't have to wait that long, but did concede that there were obstacles that have to be navigated. He said:

We need to make sure that the legislation is enacted in all of the jurisdictions so we can have this R18+ rating in effect next year. The commonwealth has begun drafting the necessary amendments and is on track to introduce it to parliament early next year.

Meanwhile Australia's New South Wales Attorney General Greg Smith has appeared on Australia's Channel 7 News calling for the ban of Grand Theft Auto IV. The news story also targets Saints Row The Third , claiming it glorifies blowing up petrol stations.

Elsewhere, Jim Wallace of the Australian Christian Lobby claims that Norwegian murderer Anders Behring Breivik's citing of Call of Duty as practice indicates that video games incite violence.

Published Final Agreed Draft Guidelines

Assessing impact

The Guidelines use the following hierarchy of impact:

• very mild - G

• mild - PG

• moderate - M

• strong - MA 15+

• high - R 18+

• very high - RC

Assessing the impact of material requires considering not only the treatment of individual classifiable elements but also their cumulative effect. It also requires considering the purpose and tone of a sequence. Impact may be higher where a scene or game-play sequence:

• contains greater detail, including the use of close-ups and slow motion

• uses accentuation techniques, such as lighting, perspective and resolution

• uses special effects, such as lighting and sound, resolution, colour, size of image, characterisation and tone Dr 6

• is prolonged

• is repeated frequently

• is realistic, rather than stylised

• is highly interactive

• links incentives or rewards to high impact elements.

Impact may be lessened where reference to a classifiable element is verbal rather than visual. For example, a verbal reference to sexual violence is generally of less impact than a visual depiction. Also, some visual impacts have less impact than others: for example, an incidental depiction may have less impact than a direct one. Some depictions in computer games may have less impact due to the stylised nature of computer generated images.

Interactivity and computer games

Interactivity is an important consideration that the Board must take into account when classifying computer games. This is because there are differences in what some sections of the community condone in relation to passive viewing or the effects passive viewing may have on the viewer (as may occur in a film) compared to actively controlling outcomes by making choices to take or not take action. Due to the interactive nature of computer games and the active repetitive involvement of the participant, as a general rule computer games may have a higher impact than similarly themed depictions of the classifiable elements in film, and therefore greater potential for harm or detriment, particularly to minors.

Interactivity may increase the impact of some content: for example, impact may be higher where interactivity enables action such as inflicting realistically depicted injuries or death or post-mortem damage, attacking civilians or engaging in sexual activity. Greater degrees of interactivity (such as first-person gameplay compared to third-person gameplay) may also increase the impact of some content.

MA 15+ - MATURE ACCOMPANIED

• THEMES The treatment of strong themes should be justified by context.

• VIOLENCE Violence should be justified by context. Strong and realistic violence should not be frequent or unduly repetitive. Sexual violence may be implied, if non-interactive and justified by context.

• SEX Sexual activity may be implied. Sexual activity must not be related to incentives or rewards.

• LANGUAGE Strong coarse language may be used. Aggressive or strong coarse language should be infrequent, and not exploitative or offensive.

• DRUG USE Drug use should be justified by context. Drug use related to incentives or rewards is not permitted. Interactive illicit or proscribed drug use is not permitted.

• NUDITY Nudity should be justified by context. Nudity must not be related to incentives or rewards.

R 18+ - RESTRICTED

• THEMES There are virtually no restrictions on the treatment of themes.

• VIOLENCE Violence is permitted. High impact violence that is, in context, frequently gratuitous, exploitative and offensive to a reasonable adult will not be permitted. Sexual violence may be implied, if non-interactive and justified by context.

• SEX Sexual activity may be realistically simulated. The general rule is simulation, yes – the real thing, no .

• LANGUAGE There are virtually no restrictions on language.

• DRUG USE Drug use is permitted. Drug use related to incentives and rewards is not permitted.

• NUDITY Nudity is permitted.

RC ƒ- REFUSED CLASSIFICATION (Banned)

Computer games will be refused classification if they include or contain any of the following:

CRIME OR VIOLENCE

Detailed instruction or promotion in matters of crime or violence.

The promotion or provision of instruction in paedophile activity.

Descriptions or depictions of child sexual abuse or any other exploitative or offensive descriptions or depictions involving a person who is, or appears to be, a child under 18 years. Depictions of:

(i) violence with a very high degree of impact which are excessively frequent, prolonged, detailed or repetitive;
(ii) cruelty or realistic violence which are very detailed and which have a very high impact;
(iii) sexual violence.

Implied sexual violence related to incentives and rewards.

SEX

Depictions of practices such as bestiality.

Gratuitous, exploitative or offensive depictions of:

(i) activity accompanied by fetishes or practices which are offensive or abhorrent;
(ii) incest fantasies or other fantasies which are offensive or abhorrent.

DRUG USE

Detailed instruction in the use of proscribed drugs.

Material promoting or encouraging proscribed drug use.

Computer games will also be Refused Classification if they contain:

(i) illicit or proscribed drug use related to incentives or rewards;
(ii) interactive drug use which is detailed and realistic.

The Australian trade group representing computer games producers has welcomed the proposed R18+ certificate for computer games.

However the Interactive Games and Entertainment Association (iGEA) says it is concerned about references in the document to the high impact of games on players.

The document contains a segment on interactivity and computer games which says:

Due to the interactive nature of computer games and the active repetitive involvement of the participant, as a general rule, computer games may have a higher impact than similarly themed depictions of the classifiable elements in film, and therefore greater potential for harm or detriment, particularly to minors.

It goes on to say that interactivity may increase the impact of some content.

For example, impact may be higher where interactivity enables action such as inflicting realistically depicted injuries, death or post-mortem damage, attacking civilians or engaging in sexual activity.

iGEA chief executive, Ron Curry, said in a statement that he had concerns about the acknowledgment in the guidelines that interactivity had a greater impact on players:

The Federal Attorney-General's office published a literature review in December 2010 that found no evidence to support these claims. There will be continued debate about whether the interactivity of video games has a greater impact than other forms of media, and we will continue to refer to the lack of the evidence.

However, Curry accepted that compromises were made to sweeten the pill for opponents, and added that the new guidelines appeared to exercise a high level of caution and balanced the range of views towards classifying video games.

Australia is currently consulting about proposals to apply censorship rules across all media. The Australian Law Reform Commission (ALRC) are tasked with proposing censorship law that covers all media.

In a long and technical, but fascinating, response from Libertus, many aspects of applying censorship laws across the board are questioned. In particular it is pointed how onerous it can be for individuals or non commercial groups to be faced with commercial levels of fines for publishing material censored under vague definitions. Irene Graham writes:

The ALRC's proposals, if implemented, would significantly extend the breadth of existing Commonwealth law for the intended purpose of enabling criminal prosecution and penalisation of online content providers, including non-commercial content providers (i.e. average everyday Australians). Existing Commonwealth law concerning online content does not apply to content providers, it applies todesignated content/hosting service providers .

The writer is shocked by ALRC proposals which, in effect, would make non-commercial online content providers criminally liable for inability to foresee a classification decision that would be made by a panel of members of the Classification Board (which is not even required to be unanimous, and a panel making a classification decision can be as few as 2 members).

...Read the full consultation response by Irene Graham of Libertus.net [pdf]

After taking a record number of public submissions, the Australian Law Reform Commission has now released its final discussion paper on a new Classification Scheme.

Most of what the ALRC has suggested makes a lot of sense, including the addition of new classification categories of C for Children, PG 8+ and T 13+ for teens. Dropping the M for Mature category also makes sense, as would removing the legal requirement to enforce age on the MA15+ classification. This is because trying to regulate age requirements on people accessing MA15+ material on a website would be impossible to enforce online.

What doesn't make sense is the suggestion that Australia's restricted publications (Category 1 and 2) both become X-rated. The last time I looked, the X rating was banned in most states. So why is the ALRC suggesting the modern day equivalent of book-burning for anything nude and rude on paper? Why would the federal government, in Section 9 of the report, seek to ban categories of books and magazines that have been around for 30 years?

It is also somewhat disturbing to see that, while the ALRC was being bold and brave about suggesting all these new classifications, when it came to the X classification they went weak at the knees and stated in Section 6: If the Australian government decided to keep the X classification ...Why would they not make a recommendation about this category as they have for many others? The fact is, they advised the federal government to introduce a new C for Children and T for Teen category. So why not recommend that X be legal in all jurisdictions as well, so they can achieve the truly uniform and consistent national scheme they say they want?

...Read the full article

The Classification team delivered its Final Report on the Review of the National Classification Scheme to the Attorney-General. Under the ALRC Act, the Attorney-General now has 15 Parliamentary sitting days in which to table the Report. Until it is tabled, the Report is under embargo and the ALRC is unable to make any comment about its recommendations or the Report's content.

We have also produced a short Summary Report that provides an accessible overview of the ALRC's recommendations and approach to reform. Once these publications have been tabled, they will be available to view or download from the ALRC website.

The Australian Press Council would be abolished and replaced with a single industry-led complaints body covering print, radio, television and internet news outlets under a proposed rewriting of media law.

And existing cross-media ownership regulations would be scrapped and replaced by a minimum number of owners rule and public interest test overseen by a powerful new media censor.

The long-awaited Convergence Review into Australia's media has found the regime overseeing newspapers, TV and radio news is outdated, thanks to the rise of the internet. The report recommends abolishing regulator the Australian Communications and Media Authority, largely regarded astoothless, and creating a media censor incorporating the Classification Board.

The new complaints body would be funded almost entirely by its members, though the Government would be able to make contributions in unusual circumstances.

All media companies, or content service providers as they would be known, would have to be members of the new standards body and bound to publish corrections and clarifications as ordered. To encourage companies to join the industry standards body, the report suggests linking the right to legal privilege for news and commentary to membership.

Communications Minister Stephen Conroy gave no hint about whether the Government would adopt any of the recommendations, saying only he would respond in due course .