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Would this Australian Classification System for Media Protect Your Children?

Opinion

Industry is looking like emerging the winner from a review into Australia's classification system for media including films.

A recent set of proposals on the classification system for media content is disturbingly industry friendly and contains little to help children and parents.

The significance of children's interests for the National Classification Scheme is clear enough. The scheme has long recognised the principle that "children should be protected from material likely to harm or disturb them". The Australian Law Reform Commission's current review of the classification system adopts that as one of its eight guiding principles.

The role of industry interests, however, is new. The brief for the review introduces "the desirability of . . . minimising the regulatory burden" on industry and this finds its way into the guiding principle that "classification regulation should be kept to the minimum needed to achieve a clear public purpose, and should be clear in its scope and application".

In this context, the make-up of the inquiry's Advisory Committee is telling. Out of fifteen members, six represent industry directly. This is the highest representation of any single set of interests on the committee.

In its recent discussion paper the Commission has put forward proposals for a new system to classifiy media content including television programs, films, computer games and publications. The proposals show an extraordinary tendency to push regulation into the hands of industry. (Or perhaps not so extraordinary, considering.) Industry would gain the power to classify media content in what appears to be a co-regulatory scheme similar to that for broadcasting.

Under the proposed scheme, a good deal of the material that is currently classified by an independent government agency would be classified by the industry itself. Another way that industry would be able to use the classification symbols and markings is under voluntary codes covering material that is not included in the official scheme at all – for example, song lyrics.

So if, under the Commission's brave new world, you see a classification marking on a product, it could mean one of three things: that the product has been classified by an independent government classifier; that it has been classified by an ''authorised industry classifier'' (or a "person using an authorised instrument''); or that it has been voluntarily classified by . . . well goodness knows who.

Such a system is bound to lack effectiveness, on a number of levels.

First, any involvement of industry is likely to result, over time, in bracket creep: a gradual increase in tolerance for higher-impact material at each level of classification. Such developments would not reflect changes in community standards, or the view of trained experts about what will harm or disturb children, but rather the desire of industry to gain access to as broad an audience as possible. It's in the industry's interests to push the envelope.

Second, to be meaningful, the classification process has to be consistent. It is ironic that a review that appears so bent on uniformity across platforms is proposing this multiplicity of processes at different levels of classification and for different kinds of content. The only checks being proposed on industry regulators are 'routine post-classification audits' that would not correct decisions but rather enable the classification board to manage ''repeated and continuing problems''. In any case these would apply only to ''content that must be classified'' – so not, for example, to DVDS.

Third, the public needs to know where its classification information is coming from, and where to go if it is dissatisfied. In this regard, it is very surprising that the Commission seems to be basing its proposals on the notoriously convoluted co-regulatory system for broadcasting. At the moment, if you see something on television that you think is inappropriate, you practically need a law degree to figure out whether to complain to ACMA, FreeTV Australia, the broadcaster, the Advertising Standards Board, or some combination.

However you don't need any kind of degree to figure out that this is a recipe for buck-passing and dilution of responsibility.

The proposals also rely heavily on the nebulous concepts of what is ''likely to be'' and what ''may be'' classified at a certain level. For example, under these proposals if you are a manufacturer of a computer game you would decide what the classification is ''likely to be''. If you think it is M or lower you don't need to have it classified at all.
The regulator - a new body - would have the power to call material in for classification, but unless somebody takes the trouble to monitor and complain about what industry is doing, the industry would basically get to write its own ticket.

At the moment, all classifications below MA15+ are advisory only. MA15+ is the lowest classification that carries legal restrictions on who can access the material. Another Commission proposal is that for films, at least, this be changed to R18+. In other words, anything lower than R18+ could legally be seen by anybody, of any age. Think of the opening scene in Saving Private Ryan. That's MA15+. Material with that level of violence would be open season for children of all ages.

Or actually, maybe not. The proposals don't contain anything concrete about what the criteria would be for every classification level. This is surprising, considering the central role of such criteria in ensuring that classifications provide appropriate protection to children, based on the best evidence about what risks causing them harm or disturbing them.

The proposals to allow industry self-classification have no clear basis in any of the guiding principles or terms of reference for the review, except the ones about reducing the ''regulatory burden''. In other words, what is going on here is deregulation.
At the same time as this review is going on, the Standing Committee of Attorneys-General has been considering changes to the criteria for classification of computer games, and the Department of Broadband, Communications and the Digital Economy is looking at media convergence.

It is not possible to imagine three overlapping reviews coming up with a proposal or combination of proposals for a stronger, more effective system. But it is possible to imagine the three all chipping away, in different ways, to make the system weaker and less effective. And that is precisely what is happening.

Elizabeth Handsley is Professor of Law at Flinders University, and President of the Australian Council on Children and the Media. ACCM's submission on the ALRC's Issues Paper can be found here. Submissions to the ALRC review can be made here before November 18.

This piece first appeared in The Age on 11 November 2011. Republished with permission - all rights reserved.

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