David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Hansard source

I rise to speak on the report into film, computer game and publication classification by the nanny state inquiry which I chaired in the last parliament. Under state and territory laws, films and computer games must be classified before they can be exhibited, demonstrated, sold or hired in Australia. Under a COAG agreement, the Commonwealth is responsible for this classification. The states and territories are responsible for the enforcement of classification laws and determine the offences and penalties, for example, for distributing refused classification material.

Classification is undertaken by the Australian Classification Board, a statutory body established under the Commonwealth Classification (Publications, Films and Computer Games) Act 1995. Its role is to classify films, computer games and publications for exhibition, sale or hire in Australia. One of the guiding principles of classification is that adults should be able to read, hear, see and play what they want. This sits alongside three other primary principles: the protection of underage viewers from material that is likely to harm or disturb them; the principle that everyone should be protected from exposure to unsolicited material that they find offensive; and the need to take account of community concerns about depictions that condone or incite violence, particularly sexual violence and the portrayal of persons in a demeaning manner.

There has been a long debate around this subject. In fact, it is an old debate and the arguments on each side are well known and have been heard many times. This was apparent in evidence to the inquiry. Some were supportive of the classification of media content, while others argued that the classification regulations amounted to an infringement on the personal choice of consumers to access entertainment freely. The view was put that there is an inherent tension in finding an appropriate and desirable balance between ensuring that adults can access content freely while protecting those who may be negatively impacted by the content. The Arts Law Centre of Australia noted the importance of maintaining:

… a balance between allowing adults to read, hear and see what they want, protecting minors from unsuitable material, and taking into account community concerns.

However, they also argued that it was critically important to maintain freedom of speech and expression through the means of artistic mediums, which is affected by classification. The centre argued that the legislation 'has the potential to conflict with the common law freedom of speech'. A different view was presented by the Australian Council on Children and the Media, particularly with regard to children. It argued that classification is a social good, carried out by government to ensure the community's safety and protection from harm. In other words, parents need guidance to be parents.

As it stands, the principle that adults should be permitted to read, hear, see and play what they want is not being upheld, particularly in relation to sexually explicit content. According to the industry group Eros:

The current system of official classification in Australia, is now a system of censorship.

It argued there is a 'contradiction between federal and state classification legislation' and that Australian wholesalers of sexually explicit material, who are obliged to abide by the classification system, are no longer commercially viable due to the availability of the same material elsewhere, the prohibitive cost of classifying such material and 'frequent abuse of power by customs and customs officials'. Eros pointed out that the X18+ and Refused Classification categories include a number of consensual sex acts between adults that are largely accepted in the community. Eros claimed that this inclusion discriminates against those who participate in these acts, including members of the lesbian, gay, bisexual, transsexual and intersex community. And, when films are classified as X18+, the states, through their respective classification enforcement statutes, have ensured that the legal status of these films remains in a grey area. An adult can legally buy and possess X18+ rated films, with the exception of adults in Western Australia, but it is illegal in all states for an adult retail store to sell such a film. This is despite the fact that an adult retail store is age restricted. You must be over 18 to enter.

This is where the inquiry hit the reality wall—where it became clear that the old debate and its rules are no longer relevant because the game has changed. The new game is called the internet. The Classification Board's decisions and the state rules that enforce them are increasingly becoming redundant. They have been superseded. Anybody is able to access, via the internet, material that would be classified as X18+ or Refused Classification. There are really no limits. Anything short of North Korean or Chinese style censorship can simply be avoided. That leads to the obvious question: what role should classification play in an environment where content is accessible regardless of the attempted restrictions of regulatory bodies? Maintaining a classification system is expensive. If it is to be retained, a major rethink is needed.

The committee concluded that for any system of classification to work it must recognise that the only scope for enforcement lies in drawing a clear distinction between illegality and immorality. It is neither reasonable nor practical to expect law enforcement to enforce morals, which is what is expected now. The committee I chaired nominated some principles upon which a policy could be based, irrespective of technological change. These principles are, firstly, to prosecute those who depict matters that are illegal while leaving depiction of legal stuff alone. Police and courts have better things to do than to wag fingers at people who engage in consensual legal sexual fetishes and then make the mistake of taking photographs or shooting video for wider distribution. Illegal things, such as rape and child sex, should be the focus.

Secondly: warn adults of content so that they have the option of avoiding exposure to it. Warning need not be particularly subtle: its purpose is to ensure that people know what they will be exposed to so they can decide whether to look at it. That means nobody needs to be exposed unwittingly, but, equally, nobody is making a nanny-state decision for someone else. Thirdly: restore responsibility to parents to protect children. The government is neither entitled nor qualified to assume the role of parenting. Other people may have different ideas about parenting but that does not give them the right to impose those ideas.

Other measures are also losing their relevance. As free TV argued, classification time zones, where programs under a certain classification can be shown within a certain time frame, were originally designed to protect children from viewing inappropriate content. There are now technological measures for this, such as parental locks, and there are children-specific television channels, such as ABC2 and ABC3. And in any case, there is an expectation that content will be available at a time of one's choosing, without restrictions such as classification zones. Catch-up viewing options, such as iview, are now ubiquitous. This effectively means there are different rules on content depending on the means by which is it is accessed.

Achieving change in this area might not be easy. While the states could go it alone, the COAG agreement calls for the unanimous agreement of all relevant state ministers for all but minor amendments. But, clearly, change is needed. Times have changed, and the regulatory system needs to respond. It is time for the government to recognise that and to begin the process of change.