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Classification Board and Classification Review Board Annual reports 2010-11 - Introduction and overviews

Classification Board and Classification Review Board Annual reports 2010-11 - Introduction and overviews

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Introduction

This report includes the reports of the Classification Board and the Classification Review Board.

Information about the Classification Board and the Classification Review Board is also available on the Classification website (http://classification.gov.au). Guidelines on the classification of films, computer games and publications, as well as the classification database are on the website. A copy of this report, as well as annual reports from previous years, is also available on the website.

The Classification Branch of the Attorney-General’s Department provides administrative support to both the Classification Board and the Classification Review Board. Further information about the Classification Branch is available in the Attorney-General’s Department Annual Report 2010–11 or on the Attorney-General’s Department website (www.ag.gov.au).

Overview of the National Classification Scheme

The National Classification Scheme is a cooperative arrangement between the Commonwealth, States and Territories. The Intergovernmental Agreement on Censorship underpins the scheme. The Commonwealth’s contribution to the scheme includes the Classification (Publications, Films and Computer Games) Act 1995 (Cth) (the Classification Act). The Classification Act provides that the Classification Board classifies films, computer games and certain publications. The Classification Act also establishes the review mechanism, the Classification Review Board, which, on application, reviews decisions made by the Classification Board. The States and Territories enforce classification decisions under their respective classification enforcement legislation. There are also some limited Commonwealth offence provisions in the Classification Act which are part of the Northern Territory Emergency Response.

Commonwealth

The Classification (Publications, Films and Computer Games) Act 1995 (Cth)

The Classification Act establishes the Classification Board and the Classification Review Board. The Classification Act requires that, in appointing members of the Classification Board and the Classification Review Board, regard is to be had to the desirability of ensuring that membership of the Boards is broadly representative of the Australian community.

The Classification Act also sets out:

  • classification types
  • statutory requirements for applications for classification
  • powers and functions of the Classification Board and Classification Review Board
  • processes for industry assessment of certain material
  • provisions for the approval of advertisements for certain products
  • statutory criteria for review of classification decisions
  • provisions pertaining to reclassification, and provisions pertaining to prohibited material in prescribed areas.

The Classification Act is available on the ComLaw website (www.comlaw.gov.au).

National Classification Code

The Classification Board and the Classification Review Board must make classification decisions in accordance with the Classification Act, the National Classification Code (the Code) and classification guidelines. The Code lists and broadly describes the classification types. Commonwealth, State and Territory Ministers with responsibility for classification agree to the Code. The Code is registered on the Federal Register of Legislative Instruments (www.comlaw.gov.au). The Code is available at ****Appendix Two *****on page 73.

Classification guidelines

The Guidelines for the Classification of Films and Computer Games and the Guidelines for the Classification of Publications (the classification guidelines) are used by the Classification Board and the Classification Review Board to assist them in applying the criteria in the Code by describing the classification types, and setting out the scope and limits of material suitable for each classification type. The classification guidelines are approved by all Ministers with responsibility for classification. The classification guidelines are registered on the Federal Register of Legislative Instruments (www.comlaw.gov.au).

There are a range of other determinations, instruments and principles applying to classification.

States and Territories

As part of the National Classification Scheme, each State and Territory has enforcement legislation that complements the Commonwealth Classification Act. The enforcement legislation sets out how films, publications and computer games can be sold, hired, exhibited, advertised and demonstrated in each State or Territory. It prescribes penalties for classification offences and provides for enforcement of classification decisions in the particular jurisdictions. Film festivals are also regulated under State and Territory enforcement legislation. Some jurisdictions have reserved censorship powers.

Other functions

In addition to making classification decisions about films, computer games and certain publications, the Classification Board and the Director of the Classification Board perform a number of other functions under the National Classification Scheme.

Exemptions to show unclassified films

Under State and Territory enforcement legislation, an organisation may make an application to show an unclassified film at a film festival or a special event. Exemptions are granted in accordance with the relevant Film Festival guidelines in each jurisdiction. A person may also apply for an exemption.

In the Australian Capital Territory, New South Wales, the Northern Territory, Queensland, Victoria, Tasmania and Western Australia, the Director of the Classification Board is generally responsible for approving film festival exemption applications on behalf of the States and Territories.

In South Australia, exemption applications should be directed to the South Australian Attorney-General’s Office.

Industry Assessors

Authorised Assessor scheme for computer games

Under the Classification Act, the Director may authorise a person who has completed the required training to recommend the classification for a computer game. If a computer game is likely to be classified G, PG or M, classification applications can be submitted accompanied by an authorised assessor’s recommended classification and consumer advice for the computer game.

Additional Content Assessor scheme

The Director may also authorise trained persons to assess additional content which accompanies a previously classified or exempt film/s released for sale or hire. These assessors can make a recommendation regarding the classification and consumer advice for the additional content. Additional content includes ‘making of’ documentaries, out-takes and commentaries or interviews with the director or actors. Under the scheme, additional content does not include television programs, series or computer games.

When an application for these types of products is accompanied by a recommendation, the Classification Board considers the recommendation before making a decision on the application.

Authorised Television Series Assessor scheme

The Authorised Television Series Assessor scheme (ATSA scheme) allows trained and authorised assessors to consider films that are one or more episodes of a television series and any series-related material and recommend an appropriate classification and consumer advice to the Classification Board.

At least one episode of the television series film included in the application must have been broadcast in Australia. The scheme does not apply to films that would be classified X 18+ or Refused Classification.

The ATSA scheme is not mandatory. Distributors may still apply for classification of television series films without submitting an assessment.

The Advertising of Unclassified Films and Computer Games scheme

The Advertising of Unclassified Films and Computer Games scheme allows for the advertising of unclassified films and computer games under certain conditions.

Amongst the conditions of this scheme is a ‘commensurate audience’ rule. This means that unclassified films and games, when advertised with already classified material, may only be advertised with material of the same or higher classification. Under the scheme, appropriately trained and authorised industry assessors assess the likely classification of unclassified films or computer games for this purpose. Applications may also be made to the Classification Board for such an assessment.

The scheme includes a number of safeguards and sanctions. These include the Director of the Classification Board having powers to revoke or suspend an assessor’s authorisation and prohibit a distributor from advertising their unclassified products for up to three years in certain circumstances.

The scheme also includes other conditions for the advertising of unclassified films and computer games including the message ‘Check the Classification’ (or ‘CTC’ in its shortened form) that must be displayed on certain advertising.

 

Australian Customs and Border Protection Service

The Australian Customs and Border Protection Service (Customs) is responsible for decisions on the status of material imported into, or exported from, Australia. The Customs (Prohibited Imports) Regulations 1956 (the Prohibited Imports Regulations) prescribe classes of goods that must not be imported into Australia. The Customs (Prohibited Exports) Regulations 1958 (the Prohibited Exports Regulations) prescribe classes of goods that must not be exported from Australia.

Customs can detain or seize any material it believes may contravene Regulation 4A of the Prohibited Imports Regulations or Regulation 3 of the Prohibited Exports Regulations. The criteria in Regulation 4A and Regulation 3 accord with the RC (Refused Classification) criteria in the National Classification Code and the Classification Act.

Customs may also apply for classification of items intercepted at the border.

The Director and Deputy Director of the Classification Board are authorised under subregulation 4A(2A) of the Prohibited Imports Regulations and subregulation 3(3) of the Prohibited Exports Regulations to grant requests for permission to import goods to which the Prohibited Imports Regulations apply, or to export goods to which the Prohibited Exports Regulations apply.

Australian Communications and Media Authority

The Classification Board does not classify material that is broadcast on radio or television networks.

The Broadcasting Services Act 1992 (the BSA) establishes a co-regulatory scheme for broadcast services including radio and television relying on codes of practice developed by industry and registered with the Australian Communications and Media Authority (the ACMA). For the purpose of classifying films screened on television, the BSA requires that codes of practice apply the film classification system under the National Classification Scheme which includes the classification guidelines and classification symbols. This is in the interests of consistency of classification information across films, DVDs and television.

Internet content is regulated via the BSA. The scheme is administered by the ACMA. If the ACMA receives a valid complaint about Australian-hosted internet content, or discovers potential prohibited content on its own initiative, the ACMA may, and in some cases must, submit the material to the Classification Board for classification. The ACMA then takes appropriate action in respect of the internet content.

Corporate Overview

Legislative governance structures

The Classification Board

The Classification Board is an independent statutory body consisting of the Director, Deputy Director, Senior Classifier and other members.

The Classification Board classifies films, computer games and certain publications. The Classification Board also classifies internet content on application.

The Director

The Director of the Classification Board has a range of statutory functions under the Classification Act which include:

  • managing the administrative affairs of the Classification Board
  • convening and presiding at Classification Board meetings
  • determining the constitution of the Classification Board for classifying particular products
  • determining how decisions are recorded
  • arranging the business of the Classification Board
  • calling in publications, films and computer games for classification
  • determining procedures for the Classification Board, and
  • providing the Minister with the Classification Board’s annual report.

In addition to the Director’s powers in relation to the Classification Board, the Classification Act confers a number of additional functions and powers on the Director which include:

  • approving forms for the purpose of the Classification Act
  • providing certificates and notice of decisions, including evidentiary certificates
  • authorisation of industry assessors, and
  • determining applications for fee waivers.

The Director and Deputy Director of the Classification Board are authorised to grant permission to import or export prohibited or potentially prohibited goods in accordance with the Customs Prohibited Imports Regulations and Prohibited Exports Regulations.

The Classification Review Board

The Classification Review Board is an independent statutory body established to review decisions of the Classification Board.

See pages 57–66 for more information on the Classification Review Board.

The Convenor

The Convenor of the Classification Review Board has a range of statutory functions under the Classification Act which include:

  • managing the administrative affairs of the Classification Review Board
  • convening and presiding at Classification Review Board meetings
  • determining the constitution of panels of the Classification Review Board to review decisions
  • determining how decisions are recorded
  • arranging the business of the Classification Review Board, and
  • providing the Minister with the Classification Review Board’s annual report.

In addition to the Convenor’s powers in relation to the Classification Review Board, the Classification Act confers a number of additional functions and powers which include:

  • approving forms for the purpose of the Classification Act
  • providing certificates and notice of decisions, including evidentiary certificates, and
  • determining applications for fee waivers.

Administrative arrangements

The Attorney-General’s Department (the Department) is responsible for the financial management of the operations of the Classification Board and the Classification Review Board.

The Classification Branch of the Department is co-located with the Classification Board and Classification Review Board in Sydney. The Branch undertakes the following functions:

  • providing operational advice on classification issues to the Minister for Justice
  • providing secretariat services to the Classification Board and the Classification Review Board
  • running the Classification Liaison Scheme
  • providing classification training for industry and government bodies, and
  • providing a classification policy function.

Meetings

The Classification Board has weekly meetings to discuss classification decisions and other procedural issues.

Regular meetings also take place between the Director, Deputy Director and Senior Classifier to ensure the day-to-day running of the Classification Board is efficient and its decisions comply with all relevant legislation.

The Classification Review Board is a part-time Board and convenes to deal with applications for review.

Effective liaison with the Attorney-General’s Department

The Classification Board and Classification Review Board maintain effective liaison with the Department, through both formal and informal meetings and contacts, in accordance with the Memorandum of Understanding (MOU) between the Department and each Board. It is intended that these MOUs be updated following the current Australian Law Reform Commission review of the National Classification Scheme.

Effective liaison with Commonwealth, State and Territory Ministers with responsibility for classification and officials, industry and the community

The Classification Board maintains effective liaison arrangements with Ministers with responsibility for classification and officials, as well as peak industry body representatives and other classification stakeholders. The Classification Board provides information about decisions to interested parties as well as advice to industry assessors to promote professional development on classification issues.

The Classification Review Board liaises with stakeholders and provides information to interested parties.

Financial management, accountability and reporting

Classification is carried out largely on a cost recovery basis with fees for classification set in the Classification (Publications, Films and Computer Games) Regulations 2005. Fees for the review of a decision are based on partial cost recovery in order to enable access to reviews of a classification decision while discouraging vexatious or frivolous claims. Revenue from classification fees for 2010–11 is $6,151,089.

Costs and revenue for classification are included in the Attorney-General’s Department Annual Report 2010–11. The report is available on the Attorney-General's Department website (www.ag.gov.au).

The Director of the Classification Board and the Convenor of the Classification Review Board are required to report to the Minister on management of the administrative affairs of the Classification Board and the Classification Review Board in accordance with section 67 and section 85 of the Classification Act respectively.

Risk management

Management of risk is undertaken in accordance with the Department’s risk management framework and fraud control plan and procedures.

Website

The Classification website (http://classification.gov.au) provides classification information to both industry clients and the community. The website provides:

  • electronic versions of classification markings and advice on how these markings are to be displayed
  • information about the Classification Board and the Classification Review Board
  • an online database to search for classification decisions
  • information about fees for classification
  • annual reports and media releases
  • links to all relevant Commonwealth, State and Territory classification legislation
  • a variety of fact sheets for industry and consumers
  • advice on what material is required to be classified, and
  • specific information for the film, computer game, publications, telecommunications and music industries.

COBRA – Classification Workflow Management System

The COBRA (Classification Operations Branch Records Administration) system is the workflow management system which enables the management of the classification workload. Development of COBRA continued through 2010–11 although some problems were encountered with staffing of the project team. The COBRA scheduler module was implemented and provided significant improvements in the management of the classification workload by senior Classification Board members. Work continued on refining the existing system and the development of improved functionality including more secure and improved media tracking and refinement of the search engines. Extensive development of COBRA to support the training and management of authorised assessors reached final testing stage. When implemented, it will provide greater support for the industry based authorised assessor schemes which have been introduced over recent years. Improved document management and scanning arrangements in COBRA will also assist in dealing with classification applications workload.

Digital Cinema

The Attorney General’s Department completed the procurement and installation of a digital 2D and 3D projection facility at the Classification Board’s Surry Hills Office in June 2011. The new facility will enable the Classification Board and the Classification Review Board to view digital 2D and 3D public exhibition films onsite. The procurement will allow public exhibition film applications to be lodged for classification in digital format. This is seen as enabling the work of the Boards to keep pace with technological developments in industry.

Establishment and maintenance of appropriate ethical standards

Ethical standards

The Classification Act provides that full-time members of the Classification Board must not engage in outside employment without the consent of the Minister. This requirement does not apply to service in the Australian Defence Force.

The Classification Board has a Code of Conduct for members.

The Classification Act makes provision for the disclosure of potential conflicts of interest by members of both Boards.

External accountability

The Classification Board and Classification Review Board work within an accountability framework which includes parliamentary scrutiny, the Crimes Act 1914, the Freedom of Information Act 1982, the Privacy Act 1988 and the Ombudsman Act 1976.

An application may be made to the Classification Review Board to review a decision of the Classification Board. An application may be made to the Administrative Appeals Tribunal (AAT) for review of some of the Director’s and Convenor’s decisions under the Classification Act.

Aspects of a Classification Review Board decision can be reviewed, on application, by the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

Membership

Appointments to the Classification Board and Classification Review Board are made by the Governor-General. It is the Minister for Justice’s responsibility to make recommendations to the Governor-General regarding appointments. Before making such recommendations, the Classification Act requires that the Minister consult with State and Territory Ministers with responsibility for classification about the proposed recommendations. Appointments are made for fixed terms of up to five years and members are eligible for reappointment to a statutory maximum of seven years.

Under section 50 of the Classification Act, the Minister may appoint temporary members of the Classification Board if it is necessary to do so for the efficient dispatch of the Classification Board’s business. This function has been delegated to the Director of the Classification Board.

Sections 66 and 84 provide that the Minister may appoint a person to act as a member during a vacancy in the Classification Board and Classification Review Board respectively.

Movements

Ms Sheridan Brill resigned from her position as member of the Classification Board with effect from 13 October 2010.

Ms Lesley O’Brien commenced her appointment to the position of Deputy Director of the Classification Board on 31 January 2011.

Mr Greg Scott, formerly a member of the Classification Board, was appointed to the position of Senior Classifier on 31 January 2011.

Five new Classification Board members, Ms Marit Breivik Andersen, Ms Tennille Burdon, Mr Lance Butler, Mr Joe Guthrie and Ms Serena Jakob, were appointed with effect from 31 January 2011.

The appointment of the Director of the Classification Board, Mr Donald McDonald AC, expired on 30 April 2011. Mr McDonald was reappointed for the period 1 May 2011 to 30 September 2011.

The term of appointment of the Deputy Convenor of the Classification Review Board, the Hon Trevor Griffin, expired on 25 April 2011.

Mr Alan Wu resigned from his position as member of the Classification Review Board with effect from 18 May 2011.

Conditions

The Remuneration Tribunal determines the entitlements of Classification Board and Classification Review Board members in relation to remuneration, annual leave and official travel. These determinations are available on the Remuneration Tribunal website (www.remtribunal.gov.au).

Freedom of information

In accordance with section 8 of the Freedom of Information Act 1982 (FOI Act), this section of the report contains information about FOI procedures and access to documents.

FOI procedures and initial contact points for enquiries

Applicants seeking access to documents under the FOI Act should contact:

Director
Freedom of Information Section
Attorney-General’s Department
3–5 National Circuit
BARTON ACT 2600
Telephone (02) 6141 2550
Facsimile (02) 6141 2583

Categories of documents

The following categories of documents are maintained by the Department on behalf of the Classification Board and Classification Review Board:

  • applications under the Classification Act, and
  • documents relating to decisions of the Classification Board and Classification Review Board.

Reasons for decisions of the Classification Review Board are available on the Classification website (http://classification.gov.au).

The following categories of documents are publicly available on the Classification website:

  • The Classification Act
    • The National Classification Code
  • Guidelines for the Classification of Publications, Guidelines for the Classification of Films and Computer Games
  • Classification (Publications, Films and Computer Games) Regulations 2005
  • Determinations and Principles made under the Classification Act
  • Annual Reports, and
  • Application forms for classification and review.

FOI requests during 2010–11

No requests were received for access to Classification Board or Classification Review Board documents under the FOI Act during the reporting period.

Privacy

As required by the Commonwealth Privacy Act 1988, the Attorney-General’s Department maintains a written record of the classes of personal information that it holds and submits a copy of that record to the Office of the Federal Privacy Commissioner for publication in the annual Personal Information Digest. The digest is available from the Office of the Federal Privacy Commissioner. Information about records held by the Attorney-General’s Department in administratively supporting the work of the Classification Board and Classification Review Board can be obtained by contacting the Privacy Contact Officer on (02) 9289 7100 or by writing to:

The Privacy Contact Officer
Attorney-General’s Department
Classification Branch
Locked Bag 3
HAYMARKET NSW 1240

Judicial decisions

An application was made to the Federal Court on 16 June 2010 under the Administrative Decisions (Judicial Review) Act 1977 (Cth) regarding the Classification Review Board’s decision to classify the modified version of the film Salo o le 120 Giornate di Sodoma (Salo) in DVD format, R 18+ (Restricted) with the consumer advice ‘Scenes of torture and degradation, sexual violence and nudity’. There was a half-day hearing on 4 March 2011. The presiding Judge, Justice the Hon Margaret Stone, reserved her decision.

Decisions by administrative tribunals

During the reporting period, no applications were made to the Administrative Appeals Tribunal for administrative review of decisions made by either the Director of the Classification Board or the Classification Review Board.

Reports by the Auditor-General

There were no reports on the operation of the Classification Board or the Classification Review Board by the Auditor-General in the reporting period.

Classification inquiries

On 24 March 2011, the Attorney-General asked the Australian Law Reform Commission (ALRC) to conduct a broad review of the National Classification Scheme. Professor Terry Flew was appointed as the Commissioner in charge of the review which will consider a range of issues confronting the Scheme in light of developments since the ALRC’s last review of censorship laws in 1991. The Commission released an Issues Paper on 20 May 2011 and is expected to report by 30 January 2012.

The Minister for Broadband, Communications and the Digital Economy, Senator Conroy, announced the terms of reference for a Convergence Review on 2 March 2011. A committee, chaired by Mr Glen Boreham, is looking at Australia’s communications and media legislation to provide advice to Government on the regulatory framework. The Committee is expected to deliver its final report to Government in the first quarter of 2012.

The Senate Legal and Constitutional Affairs Committee conducted an inquiry into the classification of media content in Australia. The terms of reference included a range of matters concerning the National Classification Scheme. The Senate Committee tabled its report to Government on 23 June 2011.

The House of Representatives Standing Committee on Social Policy and Legal Affairs conducted an inquiry into the regulation of billboard and outdoor advertising. The inquiry considered the extent to which the existing self-regulatory scheme for billboard advertising is an effective method for managing this form of advertising in Australia. The Committee was due to report by mid-2011 but had not done so as at 30 June.

Commonwealth Ombudsman

No matters involving the Classification Board or the Classification Review Board were dealt with by the Commonwealth Ombudsman during 2010–11.

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