The classification cooperative scheme

13.5 As explained in Chapter 2, the classification cooperative scheme is based on the Classification (Publications, Films and Computer Games) Act 1995 (Cth) (the Classification Act) and complementary state and territory enforcement legislation and is underpinned by the Intergovernmental Agreement on Censorship (the Intergovernmental Agreement).

13.6 The Classification Act was enacted by the Parliament of Australia to provide for the classification of publications, films and computer games for the ACT, pursuant to its power to make laws for the government of a territory (the ‘territories’ power).^[1] The Classification Act specifically provides that it is intended to form part of a Commonwealth, state and territory scheme for classification and the enforcement of classifications.^[2]

13.7 The Classification Act itself provides that Commonwealth, state and territory ministers must agree to any amendment to the Classification Code and on classification guidelines or amendments to those guidelines.^[3] The Intergovernmental Agreement, under which the scheme is established and maintained, may be amended only by unanimous agreement of the Commonwealth, states and territories.^[4] A party may withdraw from the agreement by one month’s notice in writing.^[5]

State and territory classification powers

13.8 Some states and territories retain powers to classify or re-classify material.^[6] Four jurisdictions—Queensland, South Australia, Tasmania and the Northern Territory—have legislated concurrent classification powers.^[7]

13.9 For example, under the Classification of Computer Games and Images Act 1995 (Qld), a classification officer has the power to classify computer games that have yet to be classified under the Classification Act.^[8] Further, if a computer game is classified under the Queensland Act and is subsequently also classified by the Classification Board under the Classification Act, the Queensland Act provides that the Commonwealth classification decision has no effect in Queensland.^[9]

13.10 Three jurisdictions also reserve the power to reclassify publications, films and computer games already classified by the Classification Board.^[10] For example, in South Australia, the South Australian Classification Council may make classification decisions with respect to publications, films or computer games that prevail, in South Australia, over any inconsistent decisions made under the Commonwealth Classification Act.^[11]

13.11 While the classification criteria used by the South Australian Classification Council are identical to those applied by the Classification Board, the Council’s Annual Report notes that ‘there may still be a difference between the two bodies because the Council is comprised of South Australian residents and endeavours to consider the standards accepted by the South Australian community in particular’.^[12]

13.12 In other jurisdictions, any divergence from a classification decision made under the classification cooperative scheme would require amendment to state or territory legislation and, arguably, breaching the Intergovernmental Agreement.^[13] It has been observed that

Such action would seem to be rather drastic for the occasional controversial classification decision. However, although State and Territory jurisdictions may find it difficult or burdensome to overturn a decision, it is still possible for State authorities to choose not to prosecute offences related to banned works.^[14]

13.13 Under the classification cooperative scheme, the enforcement of classification laws is primarily the responsibility of states and territories. The Classification Act itself states that ‘provisions dealing with the consequences of not having material classified and the enforcement of classification decisions are to be found in complementary laws of the States and Territories’.^[15]

13.14 As discussed in Chapter 14, state and territory enforcement legislation provides for a range of offences, which vary markedly between jurisdictions. Penalties for similar offences also differ.