Checks and safeguards

7.119 For some stakeholders, allowing industry to classify its own content raises concerns about achieving an acceptable balance between content providers’ commercial interests and community needs and concerns.^[74] For example, ACCM stated that:

There is too much risk of a conflict of interest if industry classifies content. Such a system is currently in place for television, as the ACMA acts as a co regulator with TV stations. The system does not work because industry is under too much pressure to downgrade content to fit time zones. We can point to a number of instances where the industry was found to have broadcast inappropriately classified material.^[75]

7.120 Moving to significantly greater classification of content by industry, calls for government oversight and appropriate checks and safeguards. The ALRC considers it important that the Regulator has adequate powers to monitor industry classification decision making and penalise serious breaches.

7.121 All industry classifiers—whether they classify for television networks, film distributors or other content providers—should be subject to the same Regulatory oversight. This is appropriate in a convergent media environment, where industry classifiers are doing the same job for major content providers that deliver content in multiple formats across different platforms.

7.122 The ALRC notes the opposition of the television sector to the perceived increase in regulatory oversight of their sector, specifically in relation to review and audit activities.^[76] This recommendation does not imply that current television classification practices are necessarily inadequate. However, the same regulatory oversight is recommended to achieve greater platform neutrality and to give consumers sufficient comfort and clarity regarding the way government oversees all industry classification activities.

7.123 The recommended checks and safeguards build upon the strengths of existing arrangements in relation to the current authorised assessor schemes provided for under the Classification Act and checks and safeguards incorporated under some existing industry codes.

Complaints

7.124 Similar to current arrangements, the ALRC recommends that complaints about the classification of content should be directed, in the first instance, to the content provider responsible for the classification decision. A complainant may lodge a complaint with the Regulator where that complainant considers the complaint has not been satisfactorily resolved. Under the ALRC’s model, the Regulator would have powers to investigate valid complaints.^[77]

7.125 Industry codes should include guidance on complaint-handling mechanisms. Guidance should cover awareness and accessibility of the complaints mechanism, response time frames, recording and reporting, processes for escalating serious complaints and revisiting classification decisions, where appropriate.

7.126 The Regulator should have the authority to investigate complaints about classification decisions and unclassified or unrestricted media content. In the course of investigating a complaint (especially more complex or serious complaints), the Regulator may liaise with the content provider to ascertain how the original complaint was initially addressed, to obtain reasons for the classification decision (if classified content) or to discuss options for resolving the complaint.

7.127 The Regulator may, in response to a valid complaint about media content, issue the content provider with a ‘classify’ notice or a ‘restrict access’ notice.^[78]

7.128 The Regulator may also make an application to the Board to classify content or review the original classification decision, arising from a complaints investigation. It would be uncommon for the Regulator to take such action in response to an individual complaint alone, although it would be open for it to do so where an investigation exposed potentially serious breaches of classification laws.

7.129 Numerous and significantly serious complaints would generally trigger more substantial Regulator action, such as submitting applications to the Board for classification decisions or reviews of classification decisions.^[79]

Reviews of classification decisions

7.130 A review of a classification decision involves the making of a new decision on the merits that replaces the original decision. Classification decisions for all media content that must be classified should be reviewable, including television program content. Reviews of television content are arguably more feasible and more relevant in a converged environment where broadcasters are increasingly hosting content online which extends audience reach and makes content available beyond a single screening—not unlike films, computer games and other classified content that may be subject to review.

7.131 Other content that has been voluntarily classified and content classified under an authorised classification system should also be subject to review.

Who should conduct reviews?

7.132 The ALRC recommends that the Board, rather than the Review Board, be responsible for reviewing classification decisions—that is, to make a new classification decision in response to an application for review. This means the Review Board would cease to operate.

7.133 This is intended to streamline the review process, simplify administrative arrangements and provide for potentially quicker review turn-around times. Most importantly this recommendation utilises efficiently the capacity of trained and experienced full-time Board classifiers.

7.134 Currently, the Classification Act provides for reviews of classification decisions. The Review Board makes a fresh decision on the merits after considering the material and hearing submissions by the applicant and other parties with an interest in the decision. This generally occurs in response to an application for review from the original applicant or the publisher of the media content.

7.135 A criticism of the current review arrangements is that the cost of reviews is too high.^[80] Operations of the Review Board are expensive, as most Review Board members travel to Sydney from across Australia to attend hearings and high-level secretariat support is provided by the AGD for all Review Board activities. As Review Board members are part-time and not generally located in Sydney, organising reviews can also be logistically and administratively time-consuming.

7.136 One submission also questioned the reliability of Review Board decisions given the limited number of reviews annually and hence members’ limited exposure to some types of content.^[81] A lack of classification decision-making experience may have implications for reviewing decisions of industry classifiers who are more regularly engaged in the classification of more media content. ^[82]

7.137 The ALRC recognises the value of a review mechanism and therefore recommends that the new classification scheme continue to provide for classification decisions to be appealed, but that the function should reside with the Board, rather than the Review Board.^[83]

7.138 There was some opposition to the abolition of the Review Board, with submissions arguing that the Board would be unable to independently review its own decisions—the primary concerns being the potential for bias and conflict of interest.^[84]

7.139 As the Arts Law Centre of Australia and the National Association for the Visual Arts both suggest the Federal Court process of appeal ‘is a model which could be replicated by the Classification Board so as to ensure transparency and avoid the perceived bias attached to a self-review function’.^[85] Under the Federal Court of Australia Act 1976 (Cth), the first time a case is heard in the Federal Court, it is heard by a single judge only.^[86] If a party to the case wants to appeal the Judge’s decision, this appeal will be heard by a Full Court of the Federal Court,^[87] which must consist of at least 3 Federal Court Judges.^[88]

7.140 If a statute requires an organisation to take multiple roles (such as primary and reviewing decision maker), this will exclude the application of the bias rule to the extent that bias is perceived merely because of these multiple roles.^[89] However, the bias rule will not necessarily be excluded if bias is apprehended for other reasons. For example, a Board member involved in a primary decision sits on the panel reviewing that decision may give rise to an apprehension of bias.

7.141 The new Act should therefore provide statutory requirements for the composition of review panels, including making explicit whether primary decision makers are to be allowed to sit on reviews. The MPDAA suggested that legislation prescribe that the majority of classifiers on the Review panel should not have been involved in the classification decision being appealed.^[90] The ALRC further suggests that Board procedures should refer to the maximum size of panels for original classification decisions.

7.142 The Board would only be reviewing its ‘own’ decisions in relation to the narrow segment of content that the ALRC recommends must always be classified by the Board. This would primarily affect content providers of feature films for cinema release and computer games likely to be classified MA 15+ and above, whose industry peak bodies indicated support for the ALRC’s recommendation provided that the new Act addresses issues of perceived bias and conflict of interest.^[91] In all other cases the Board would be reviewing an industry classifier’s classification decision.

7.143 To maintain transparency and consistent with current practice, the ALRC recommends that Board should provide detailed reasons for each review decision and to do so within a legislatively specified time frame. Likewise, parties to a review including the original applicant for classification, should have the opportunity to make submissions in person to the Board, as part of the review hearing.

7.144 This review model is preferable to one that would see the Regulator being responsible for appeals of classification decisions, as suggested in some submissions.^[92] Although the ALRC recommends that the Regulator is established as a separate agency that is arms-length from Government, it is still an agency of government—and therefore should not make classification decisions either in the first instance or on appeal. Crucially, the Regulator is not intended to be a classification body.

Who may apply for a review

7.145 The Classification Act provides that an application for review of a classification decision generally must be made within 30 days after the applicant received notice of the decision.^[93] The Australian Government Minister responsible for the Classification Act may seek a review at any time. The Act also sets limits on the persons that may seek a review as follows:

• the Australian Government Minister responsible for the Classification Act;
• applicants for the classification of content and publishers of the content that was classified; and
• a ‘person aggrieved’ by the decision, as defined in the Classification Act.^[94]

7.146 To provide industry with a level of certainty regarding classification decisions, without undermining access to a review mechanism, these limits should be retained. Likewise, to provide the broader community with access to the appeals process, the ALRC suggests retention of the provisions that allow the Minister responsible for classification to seek reviews of classification decisions. Although the ALRC is recommending a Commonwealth classification scheme, it would be appropriate to continue to provide State and Territory Governments with the opportunity to make requests for classification reviews.^[95] This may go some way to addressing concerns that the views of Australians in different parts of the country would not be adequately catered for under a Commonwealth classification scheme.^[96]

7.147 The ALRC considers that these opportunities, subject to appropriate limitations, are important and necessary safeguards in a co-regulatory scheme that gives industry the greater share of classification responsibility.

Audits of industry classification decisions

7.148 As part of the quality-assurance process and monitoring of industry classification decision making, the Regulator should have the power to undertake post-classification audits of media content that must be classified and media content that must be restricted to adults. In conducting audits, the Regulator may draw on the classification experience of the Board as the independent benchmark decision maker.

7.149 Even among submissions that favoured industry classification, there was support for government checks of industry, including regular audits and random sampling of classification decisions.^[97]

7.150 Audits would be the primary mechanism by which the Regulator proactively manages industry classifiers and classification activities, to maintain a high standard of decision-making. Audits would be the means for advising content providers and/or individual classifiers about any issues identified with the classification decision-making process and might prompt remedial action to assist classifiers to improve their job performance. This might involve liaising with the employing organisation and suggesting additional training or supervision. In some cases, audit outcomes might see content providers revisiting decisions as appropriate. Audits would also provide an evidence base of serious and repeated misconduct—in which case the Regulator would have options to impose sanctions, as discussed below.

7.151 Classification bodies in other jurisdictions are increasingly using post-release audits to verify the accuracy of classification decisions—particularly where decisions are automated and dependent on information submitted by the content provider.^[98]

7.152 To support the audit program the Regulator would need to establish procedures including notifying content providers of audit activity, requesting decision documentation and media content, time-frames for completing audits and advising audit outcomes. The audit processes of the ESRB and PEGI might offer some useful guidance in this regard.

Call-in notices

7.153 The Classification Act provides for the Director of the Board to call in submittable publications, films or computer games where there are reasonable grounds to believe that such content is unclassified and not exempt from classification.^[99] In the case of computer games, they may also be called in if the Director has reasonable grounds to believe that they contain contentious material.^[100]

7.154 In the ALRC’s view, the Regulator should have a similar power under the new Act, to call in content that must be classified or to which access should be restricted, including where it has reasonable grounds to believe that:

• the content should be restricted;
• the content is unclassified;
• the content has been incorrectly classified; or
• the content may be RC.^[101]

7.155 Call-in notices may be issued for unclassified content (that should either be classified or access to which should be restricted) or classified content (for review of the classification decision). As stated earlier, any formal classification decision, whether made by the Board or industry and regardless of the media content, is reviewable.

7.156 The Regulator may have reasonable grounds to believe that call-in action is necessary and appropriate. This may arise from complaints investigations or programmed audit activity. Allowing the Regulator to call in media content for review, in exceptional circumstances where it is warranted, provides complainants and the wider public with an avenue for redress where a classification decision is particularly contentious or has been improperly made.

7.157 Call-in notices would supplement ‘classify’ notices and ‘restrict access’ notices. The important difference between call-in notices and these other notices is that a call-in notice requires the content provider to submit an application to the Board for classification of the content or review of the original classification decision. Whereas content providers may choose to get their content classified by the Board or by an authorised industry classifier in response to a ‘classify’ or ‘restrict access’ notice.^[102]

Sanctions regime for industry classifiers

7.158 Sanctions are another means of protecting consumers and ensuring that the integrity of the entire classification scheme is maintained. Sanctions are intended to be a ‘last resort’ to prevent industry classifiers from continuing to make classification decisions where decisions are repeatedly misleading, incorrect or grossly inadequate.^[103]

7.159 The ALRC recommends that the new Act provide for a regime of sanctions that might be applied against industry classifiers, who repeatedly make decisions that are ‘misleading, incorrect or grossly inadequate’.^[104] The range of sanctions should be similar to the range of sanctions in the current Classification Act and related legislative instruments that apply to authorised assessors.^[105]

7.160 Sanctions should generally only be used if other informal action has not remedied the situation. For example, liaison between the Regulator and the classifier and/or the content provider to discuss the classification problems and allowing time for remedial action, such as re-training and additional supervision.

7.161 In some circumstances, it may be more appropriate to ‘address issues of non-compliance at the level of the corporation rather than the individual’, in which case the Regulator should have the power to issue financial penalties to the company or organisation responsible for the classification decision-making.^[106] As the Classification Board observed:

It may be possible, for example, for an industry assessor to be placed under undue pressure by an employing company/classification applicant (whether they are an employee of that company or a consultant or contractor) to deliver a certain classification outcome, or for a company to ‘shop around’ industry assessors to get the classification outcome they desire.^[107]

7.162 In order to provide industry classifiers with guidance on best practice, industry codes should include information on maintaining records of classification decisions and reasons for decisions, and internal quality assurance controls, including escalating contentious, borderline or difficult classification decisions to supervisors or managers.

7.163 In the interests of procedural fairness, decisions of the Regulator to impose sanctions against industry classifiers and/or the organisations responsible for classification decision-making should be reviewable by the Administrative Appeals Tribunal.