The Australian Government has announced Stage 2 of its reform process for the National Classification Scheme, inviting comment on key issues.

In brief

On 4 April 2024, the Minister for Communications opened consultation on significant and comprehensive stage two reforms to the National Classification Scheme (“Scheme“).

The Scheme is comprised of a number of laws and regulatory instruments – together, operating as a regulatory framework for classifying films, certain publications and computer games under cooperative arrangements between the Commonwealth, and the States and Territories. In addition, the Scheme directly underpins the online content scheme in Part 9 of the Online Safety Act 2021 (Cth) (“OSA“) and informs elements of the broadcast television self-classification requirements in place under industry codes of practice under the Broadcasting Services Act 1992 (Cth).

The first stage of the Government’s two-stage reforms commenced on 14 March 2024. This stage two consultation will occur in parallel with a separate, but closely related, review of the OSA which was announced in February. For more information about these prior developments, please view our previous alerts here and here.

The long-awaited reform process is intended to modernize the Scheme which was established nearly 30 years ago, and ensure it is apt to regulate the modern media environment.

In this second stage, public consultation will be sought on three key issues:

The need to clarify the Scheme’s scope and purpose
The establishment of evidence-based classification guidelines
The possibility of establishing a single national regulator responsible for media classification at the Commonwealth level

The Government is seeking submissions from interested parties, to be made online by 16 May 2024 at 5pm AEST.

Key takeaways

The Government’s Public Consultation Paper (“Paper“) invites feedback on questions relating to the following areas:

Clarification of the scope and purpose of the Scheme. Critically, comment is sought on limiting classification obligations under the Scheme to professionally produced content that is distributed on a commercial basis and directed to an Australian audience (with classification responsibility sitting with the provider who makes the content available in Australia). If this proposal were adopted, online user generated content would not require classification, with classifiable online content limited to content uploaded by the online service provider itself.
Evidence-based classification guidelines, and a proposal to form a Classification Advisory Panel to facilitate more frequent updates and revisions to the Scheme.
Fit-for-purpose regulatory and governance arrangements for classification, and a proposal to form a single national regulator at the Commonwealth level.

In more detail

Background

This reform process began in March 2023 when the Minister for Communications, Michelle Rowland MP, announced a two-stage process to reform the Scheme in the wake of multiple reviews, including most recently the review conducted by Mr Neville Stevens AO during 2019 and 2020 (“Stevens Review“). Developed in 1995, the Scheme is widely regarded as out-of-date and in need of significant updates.

In February 2024, the stage one reforms commenced via the Classification (Publications, Films and Computer Games) Amendment (Industry Self-Classification and Other Measures) Act 2023 (Cth). This stage sought to make a number of immediate improvements by:

Expanding options for industry self-classification using Government-accredited classifiers, and the Classification Board’s powers to oversee self-classification decisions.
Expanding classification exemptions to facilitate community access to low-risk cultural content.
Removing re-classification requirements in respect of broadcast television.

The Stage 2 reforms

On 4 April 2024, the Minister announced the commencement of the second stage of the reform process. This stage aims to more comprehensively address the Scheme’s current inadequacies by addressing some of its more fundamental issues.

The Government is now seeking feedback on a range of issues including the following:

Scope and purpose of the Scheme

The Paper considers the guiding principles of the National Classification Code 2005, and invites comment on whether these remain relevant.
It also invites comment on what types of content should be subject to classification. The Paper suggests that, broadly, such content should be limited to that which is professionally produced, distributed on a commercial basis and directed to an Australian audience (with classification responsibility sitting with the provider who makes the content available in Australia). In an online context, content would only be classifiable if uploaded by the provider itself (not by an end-user).
The Paper also invites comments on whether the definition a “submittable publication” remains suitable, or whether it should be clarified or broadened.

Evidence-based classification guidelines

The Paper notes that there is presently no requirement for regular reviews of the various Classification Guidelines forming part of the Scheme, and proposes the formation of a Classification Advisory Panel (CAP).
The CAP would be comprised of experts in fields relevant to classification, such as psychology and child development, community representatives, and industry experts.
The CAP would advise the Commonwealth, States, and Territories on possible updates to the classification criteria. The Paper seeks feedback on this proposal, and invites comment on what issues arising from the current Classification Guidelines ought to be considered by such a panel.

Fit-for-purpose regulatory and governance arrangements for classification

The Paper notes that the present split of responsibilities for classification across multiple Governments, regulators and other entities results in “arrangements [that] are inefficient, fragmented and create an unequal regulatory regime”, and in response proposes the creation of a single national regulator tasked with consolidated responsibilities for classification at the Commonwealth level.
The Paper requests feedback on this proposal. It also suggests that a number of possible approaches to regulation of content could be applied and seeks views on the applicability of existing regulatory models (such as the regulatory model of the ACMA or the eSafety Commissioner) to inform the new model.
Additionally, the Paper invites comment on the possible consequences of consolidating classification functions.

While the Paper is focussed on a limited number of key areas, these are fundamental to the scope and operation of the Scheme and will be of critical interest to a range of industry participants.

The Online Safety Act

The Minister has prescribed that several matters are out of scope for this review, including matters which fall within the remit of the OSA, given the separate independent statutory review of that legislation.

We anticipate, however, that a number of concerns relating to the Scheme may be inextricably linked to the operation of the OSA and the role of the eSafety Commissioner given the way that the Scheme underpins the OSA and the express invitation for comment on whether the regulatory model of the eSafety Commissioner could be used as a model for the proposed national regulator.

With thanks to Madeleine Salier (Graduate at Law) for her work on this alert.