Introduction and Overviews
INTRODUCTION AND OVERVIEWS
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 Australian Classification website at www.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, are 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 2013–14 or at 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 certain decisions made by the Classification Board.
The states and territories enforce classification decisions under their respective classification enforcement legislation. There are also some Commonwealth offence provisions in the Classification Act which are part of the Stronger Futures in the Northern Territory legislation package—formerly known as the Northern Territory Emergency Response.
The Classification (Publications, Films and Computer Games) Act 1995 (Cth)
The Classification Act establishes the Classification Board and the Classification Review Board. The Boards are independent from government and from each other. 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
- provisions pertaining to prohibited material in prohibited material areas.
The Classification Act is available online at 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 at www.comlaw.gov.au. The Code is available in the Appendix on page 76.
The Guidelines for the Classification of Films, Guidelines for the Classification of Computer Games and 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 at www.comlaw.gov.au.
There are a range of other determinations, instruments and principles applying to classification and they can be found online on the classification website at www.classification.gov.au or at www.comlaw.gov.au.
STATES AND TERRITORIES
As partners in the National Classification Scheme, each state and territory has classification legislation that complements the Commonwealth Classification Act. The legislation sets out how films, publications and computer games can be sold, hired, exhibited, advertised and demonstrated in that jurisdiction. It prescribes penalties for classification offences and provides for enforcement of classification decisions. Film festivals are also regulated under state and territory legislation. Some jurisdictions have reserved censorship powers.
In addition to making classification decisions about films, computer games and certain publications, the Director of the Classification Board and the 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 or an individual may make an application to show an unclassified film at a film festival or a special event. Exemptions are granted in accordance with Film Festival Guidelines and the relevant classification enforcement legislation in each jurisdiction. A person may also apply for an exemption.
The Director is responsible for approving film festival exemption applications (although some jurisdictions' legislation provides that either the Director or the relevant state or territory minister may consider exemption applications).
Applications for classification can be lodged under assessor schemes. None of the assessor schemes are mandatory. Applications may still be made to the Classification Board without using the schemes.
Authorised Assessor Scheme for computer games
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 General, PG Parental Guidance or M Mature, classification applications can be submitted accompanied by an authorised assessor's report recommending the 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 report recommending the classification and consumer advice, the Classification Board considers the recommendation before making a classification decision.
Authorised Television Series Assessor Scheme
The Authorised Television Series Assessor Scheme (the 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 must have been broadcast in Australia. The ATSA Scheme does not apply to films that would be classified X ١٨+ Restricted or Refused Classification.
The Advertising of Unclassified Films and Computer Games Scheme
The Advertising of Unclassified Films and Computer Games Scheme (the Advertising Scheme) allows for the advertising of unclassified films and computer games under certain conditions. The conditions are prescribed in the Classification (Advertising of Unclassified Films and Computer Games Scheme) Determination 2009.
Generally, advertising for unclassified films and computer games must display the message 'Check the Classification' (or 'CTC' in its shortened form).
For certain forms of advertising, once a film or computer game is classified, the advertising message must be removed and be replaced with the classification marking.
Another condition 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.
The Advertising Scheme includes a number of safeguards and sanctions. These include the Director 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.
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 criteria in the 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 cinema films, DVDs and television.
Online content is regulated via the BSA which is administered by the ACMA. If the ACMA receives a valid complaint about Australian-hosted online 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 online content.
LEGISLATIVE GOVERNANCE STRUCTURES
The Classification Board
The Classification Board is an independent statutory body consisting of the Director, Deputy Director and other members.
The Classification Board classifies films, computer games and certain publications. The Classification Board also classifies online content on application.
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
- authorising 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 page 63 for more information on the Classification Review Board.
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.
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 Classification Branch undertakes the following functions:
- providing policy and operational advice on classification issues to the ministers with classification responsibilities
- providing secretariat services to the Classification Board and the Classification Review Board
- providing classification education and training for industry and government bodies.
The Classification Board meets generally weekly to discuss classification decisions and other procedural issues.
Regular meetings also take place between the Director and the Deputy Director 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 only 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.
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 and officials with responsibility for classification, 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 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 2013–14 is $4 872 961.
Costs and revenue for classification are included in the department's Annual Report 2013–14. The report is available at 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 for Justice 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.
Management of risk is undertaken in accordance with the department's risk management framework and fraud control plan and procedures.
The Australian Classification website address is www.classification.gov.au. Information is tailored to user groups such as the public, industry and law enforcement. Information on the National Classification Database (NCD) incorporates consumer advice in the search results, a classification matrix which shows the strength of all the classifiable elements and a synopsis of public exhibition films and movies on DVD. Information in a range of languages is also available. In 2014-15, the website will be the home of a secure method for industry to lodge applications to the Classification Board and Classification Review Board. In the reporting year, there have been 718 092 visits to the site.
ESTABLISHMENT AND MAINTENANCE OF APPROPRIATE 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. The minister has delegated the authority to approve secondary employment to the Director of the Classification Board. 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.
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 (see Review Board section on page 63).
Decisions by administrative tribunals
An application may be made to the Administrative Appeals Tribunal (the AAT) for review of some of the Director's and Convenor's decisions under the Classification Act. In the previous reporting period, one applicant sought a review by the AAT in relation to the Director's decision to decline a request for permission to import objectionable goods under regulation 4A (2) of the Customs (Prohibited Imports) Regulations 1956. On 21 January 2013, the AAT affirmed the decision of the Director to refuse the permission. The AAT found in favour of the Director on both the merits of the case and on questions of law. On 21 March 2013, the applicant lodged a Notice of Appeal with the Federal Court. The matter was heard on 29 August 2013. The decision of the AAT was set aside and remitted to be heard and decided again by the AAT. On 6 December 2013, the applicant withdrew the matter from the AAT.
Appointments to the Classification Board and Classification Review Board are made by the Governor-General. It is the responsibility of the Minister for Justice 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. During the reporting period, one new member was added to the temporary Board member register.
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.
In August 2013, Mr Zahid Gamieldien took leave from the Classification Board.
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 at 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.
Applicants seeking access to documents under the FOI Act should contact:
Freedom of Information Section
3–5 National Circuit
BARTON ACT 2600
Telephone: (02) 6141 2550
Facsimile: (02) 6141 2583
One request was received for access to Classification Board or Classification Review Board documents under the FOI Act during the reporting period.
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 at www.classification.gov.au.
The following categories of documents are publicly available on the Classification website:
- the Classification Act
- the National Classification Code
- the Guidelines for the Classification of Publications, Guidelines for the Classification of Films, and Guidelines for the Classification of Computer Games
- the Classification (Publications, Films and Computer Games) Regulations 2005
- the Determinations and Principles made under the Classification Act
- Annual reports, and
- application forms for classification and review.
The Classification Branch
Locked Bag 3
HAYMARKET NSW 1240
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.
REVIEW OF THE NATIONAL CLASSIFICATION SCHEME
The Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Bill 2014 was passed in the House of Representatives on 25 March 2014. It proposes to reform various aspects of the National Classification Scheme to provide consumers with more classification information than they currently receive and reduce the regulatory burden on industry.
No matters involving the Classification Board or the Classification Review Board were dealt with by the Commonwealth Ombudsman during 2013–14.