Penny Wong (SA, Australian Labor Party, Minister for Finance and Deregulation) Share this | Link to this | Hansard source

I present three government’s responses to committee reports as listed at item 13 on today's Order of Business. In accordance with the usual practice, I seek leave to have the documents incorporated in Hansard and to move a motion in relation to the document.

Leave granted.

The documents read as follows—

Government response to Senate Legal and Constitutional Affairs Committee report

Combating the Financing of People Smuggling and Other Measures Bill 2011

Introduction

On 3 March 2011 the Senate referred the Combating the Financing of People Smuggling and Other Measures Bill 2011, for inquiry and report.

The Committee held a public hearing on 16 March 2011 taking evidence from officers of the Department and AUSTRAC. The Committee tabled its report on 21 March 2011 with three recommendations.

Recommendation 1: The committee recommends that, as a matter of priority, the Australian Transaction Reports and Analysis Centre establish appropriate memoranda of understanding for the sharing of intelligence with the new designated agencies outlined in the Bill.

Recommendation 2: The committee recommends that the Attorney-General's Department review relevant options with a view to introducing an appropriate oversight mechanism to monitor the handling of credit information for the electronic verification of identity pursuant to the Bill.

Recommendation 3: The committee recommends that the Senate pass the Bill, noting recommendations 1 and 2.

The Bill was subsequently passed by both Houses of Parliament and received Royal Assent on 28 June 2011.

As the recommendations were not addressed during the debate of legislation, a response has not been provided to the Committee about the Government's position in relation to its recommendations. This document forms the Government's response.

Government response to Recommendations

Recommendation 1

The committee recommends that, as a matter of priority, the Australian Transaction Reports and Analysis Centre (AUSTRAC) establish appropriate memoranda of understanding for the sharing of intelligence with the new designated agencies outlined in the Bill.

The Government supports this recommendation and has taken steps to implement it.

Memoranda of understanding (MOUs) have been finalised with the Department of Foreign Affairs and Trade, the Defence Imagery and Geospatial Organisation and the Office of National Assessments, and MOUs with the Defence Signals Directorate and Defence Intelligence Organisation are close to finalisation.

Recommendation 2

The committee recommends that the Attorney-General's Department (AGD) review relevant options with a view to introducing an appropriate oversight mechanism to monitor the handling of credit information for the electronic verification of identity pursuant to the Bill.

AGD has reviewed relevant options for an oversight mechanism to monitor the handling of credit information pursuant to Recommendation 2.

A breach of the verification of identity provisions contained in the Bill will constitute an interference with privacy and a person affected by an alleged breach may complain to the Office of the Australian Information Commissioner (OAIC) in accordance with the Privacy Act 1988.

The Privacy Act 1988 has specific mechanisms in place to regulate the use of credit reporting data by credit reporting agencies. AGD does not consider that the Anti Money Laundering and Counter Terrorism Financing Act 2006 is the appropriate vehicle to further expand on the current obligations of credit reporting agencies.

Accordingly, AGD considers that no further action is necessary.

Recommendation 3

The committee recommends that the Senate pass the Bill, noting recommendations 1 and 2.

The Bill was passed by the Senate on 16 June 2011 and received Royal Assent on 28 June 2011.

Government response to the Senate Legal and Constitutional Affairs Committee Inquiry into the National Classification Scheme

At the time of the Senate Committee undertaking its Inquiry, and prior to its report being finalised, the Government referred the National Classification Scheme (NCS) to the Australian Law Reform Commission (ALRC) for review. Recommendation 30 of the Committee's report is that the ALRC be directed to consider the findings, proposals and recommendations of the Committee's report.

The ALRC review was considered necessary to modernise the system of classification in Australia and allow it to keep pace with developments in technology now and into the future. When the current NCS commenced in 1995, classifiable content and the way it was delivered to consumers was relatively static.

The ALRC review was designed to consider not only classification categories, but the whole classification system including the legislative framework to ensure it continues to be effective in the 21st century.

The ALRC was considered the most appropriate body to conduct the review as it had previously conducted an inquiry into laws relating to classification and censorship in 1991. The ALRC's 1991 Report established the basis for the current NCS.

The terms of reference for the ALRC's 2011-12 review (which were subject to public consultation prior to being finalised) stated:

Having regard to:

I refer to the ALRC for inquiry and report pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996, matters relating to the extent to which the Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act), State and Territory Enforcement legislation, Schedules 5 and 7 of the Broadcasting Services Act 1992, and the Intergovernmental Agreement on Censorship and related laws continue to provide an effective framework for the classification of media content in Australia.

Given the likelihood of concurrent Commonwealth reviews covering related matters as outlined above, the Commission will refer relevant issues to those reviews where it would be appropriate to do so. It will likewise accept referral from other reviews that fall within these terms of reference.

Such referrals will be agreed between the relevant reviewers.

1. In performing its functions in relation to this reference, the Commission will consider:

i. relevant existing Commonwealth, State and Territory laws and practices

ii. classification schemes in other jurisdictions

iii. the classification categories contained in the Classification Act, National Classification Code and Classification Guidelines

iv. any relevant constitutional issues, and

v. any other related matter.

2. The Commission will identify and consult with relevant stakeholders, including the community and industry, through widespread public consultation. Other stakeholders include the Commonwealth Attorney-General's Department, the Department of Broadband, Communications and the Digital Economy, the Australian Communications and Media Authority, the Classification Board and Classification Review Board as well as the States and Territories.

The ALRC reported to Government on 29 February 2012 and the Government released, via tabling in the Parliament, the final report on 1 March, 2012.

The current NCS is a cooperative scheme between the Commonwealth and all state and territory governments. Under the Intergovernmental Agreement that underpins the scheme, the Commonwealth has agreed to consult states and territories about any meaningful changes to the scheme. Indeed, the current Commonwealth legislation has unanimous agreement requirements in relation to certain aspects of the scheme such as proposed changes to the classification categories and Classification Guidelines.

Consequently, the Commonwealth has sought the views of all States and Territories about the ALRC Report. Once those comments are received, the Commonwealth will be able to further develop its position on the ALRC recommendations (incorporating consideration of Senate Committee recommendations where appropriate) and, in due course, finalise the Government response to the ALRC Report.

In developing its response, the Government will also give consideration to how the ALRC recommendations interact with those of the Convergence Review. Although there are discrete components of each report, there is also substantial overlap in some key respects.

Since the tabling of the ALRC Report, the Government has been able to consider how the Senate Committee's recommendations might interact with those of the ALRC. The comments in relation to each recommendation below are made in that context.

Recommendation 1

The committee recommends that an express statement should be included in the National Classification Code which clarifies that the key principles to be applied to classification decisions must be given equal consideration and must be appropriately balanced against one another in all cases. Currently, these principles are:

Government Response – noted

The National Classification Code (the Code) states that classification decisions are to give effect, as far as possible, to the four guiding principles that the Committee outlines in Recommendation 1. This requires the Classification Board to give equal consideration to the principles in the Code to the extent possible in each decision-making circumstance. What principles should underpin classification legislation, and whether those considerations should be weighted, or not, will be considered in the context of the Government's response to the ALRC Review of the NCS.

Recommendation 2

Further to Recommendation 1, the committee recommends that the fourth key principle in the National Classification Code should be expanded to take into account community concerns about the sexualisation of society, and the objectification of women.

Government Response – noted

See response to Recommendation 1.

Recommendation 3

The committee notes that there has been no further consideration by the Senate of the Senate Environment, Communications and the Arts Committee's 2008 report, Sexualisation of children in the contemporary media. The committee recommends that the Senate should, as a matter of urgency, establish an inquiry to consider the progress made by industry bodies and others in addressing the issue of sexualisation of children in the contemporary media; and, specifically, the progress which has been made in consideration and implementation of the

recommendations made in the Sexualisation of children in the contemporary media report.

Government Response – noted

This recommendation is directed at the Senate.

Recommendation 4

The committee recommends that the Guidelines for the Classification of Films and Computer Games and the Guidelines for the Classification of Publications 2005 should be revised so that the preamble to both sets of guidelines expressly states that the methodology and manner of decision-making should be based on a strict interpretation of the words in the respective guidelines.

Government Response – not agree

The Classification Guidelines (the Guidelines) are not 'self-standing' but are part of a package of legislation consisting of the Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act), the Code and the Guidelines. In Adultshop.Com Ltd v Members of the Classification Review Board (2008) the Court discussed the relationship between the Act, the Code and the Guidelines and confirmed this view noting that the Guidelines need to be read in conjunction with the Code.

Section 9 of the Classification Act provides that publications, films and computer games are to be classified in accordance with the Code and the Guidelines. The Act contains certain matters that the Board must also take into account in making decisions on the classification of a publication, film or computer game, including those set out in s11.

The ALRC has made recommendations about future classification instruments, recommendation 9-3 in particular.

Recommendation 5

The committee recommends that the emphasis on context and the assessment of impact should be removed as principles underlying the use and application of the Guidelines for the Classification of Films and Computer Games.

Government Response – not agree

Consideration of context and impact are crucial to the making of classification decisions. In the media classification environment, context refers to the circumstances that surround a particular event or situation and impact is the influence or effect upon an audience (for the purpose of determining whether content should be classified at a lower or higher classification). A classifiable element such as nudity in the context of a documentary about the anatomy of the human body would warrant an entirely different classification rating to nudity in a film mainly concerned with sex. Similarly, a classifiable element such as drug use will have a different impact, and warrant a different classification, depending on the type of drug and whether the depiction is discreet or explicit.

See also response to Recommendation 4.

Recommendation 6

The committee recommends that the Australian Government introduce Standing Community Assessment Panels to assist in the determination of community standards for the purpose of classification decision-making.

Government Response – noted

Classification Board Members are appointed to be broadly representative of the Australian Community. They are appointed in consultation with participating Ministers in the NCS and must not hold office for a total of more than 7 years.

Historically, Community Assessment Panels (CAPs) are people from the community taking part in focus group sessions who are recruited to represent a range of characteristics, across such criteria as age, gender, family status and ethnicity. They view media content and carry out classification exercises by the same methods and using the same decision-making tools as the Classification Board. CAPs have been engaged periodically to test the degree to which the decisions of the Classification Board are in line with community standards.

As part of its review, the ALRC undertook an exercise involving members of the community viewing content and reacting to it. The report of that aspect of the review can be found at: http://www.alrc.gov.au/publications/community-attitudes-higher-level-media-content-community-and-reference-group-forums-con.

The ALRC made recommendations about research and community standards, namely Recommendation 9-4 (a) to (e). The Government will consider the Committee's recommendation in developing the Government response to the ALRC recommendations.

Recommendation 7

The committee recommends that the classification of artworks should be exempt from application fees.

Government Response – noted

The ALRC made the following relevant recommendations:

The National Classification Scheme should be based on a new Act, the Classification of Media Content Act. The Act should provide, among other things, for:

(a) what types of media content may or must be classified;

(b) who should classify different types of media content;

(c) a single set of statutory classification categories and criteria applicable to all media content;

(d) access restrictions on adult content;

(e) the development and operation of industry classification codes; and

(f) the enforcement of the National Classification Scheme, including through criminal, civil and administrative penalties for breach of classification laws (Recommendation 5-2)

The Classification of Media Content Act should provide a definition of 'exempt content' that captures all media content that is exempt from the laws relating to what must be classified. The definition of exempt content should capture the traditional exemptions, such as for news and current affairs programs. The definition should also provide that films and computer games shown at film festivals, art galleries and other cultural institutions are exempt. Providers of this content should not be exempt from obligations to take reasonable steps to restrict access to adult content (Recommendation 6-3)

Beyond these, the ALRC did not specifically recommend that artworks be classified.

The Government will consider the Committee's recommendation in developing the Government response to the ALRC recommendations.

Recommendation 8

The committee recommends that the Australian Government, through the Standing Committee of Attorneys-General, pursue with relevant states the removal of the artistic merit defence for the offences of production, dissemination and possession of child pornography.

Government Response – agree

The Attorney-General's Department understands that artistic merit is no longer a defence to child pornography in NSW. The defence was removed in NSW from s 91G of the Crimes Act 1900.

The change aligned NSW child pornography laws with the Commonwealth, but means that NSW is inconsistent with other states and territories. This could be problematic where charges are laid for offences taking place in various jurisdictions.

The Commonwealth will raise the inconsistency issue with the Standing Committee of Law and Justice.

Recommendation 9

The committee recommends that provision be made in the Classification Act 1995 for an exemption for cultural institutions, including the National Film and Sound Archive, to allow them to exhibit unclassified films. This exemption should be subject to relevant institutions self-classifying the material they exhibit and the Classification Review Board providing oversight of any decisions in that regard.

Government Response – noted

Section 5B of the Classification Act already allows for films to be exempt from classification if they are of a community or cultural type. There is also a film festival exemption scheme that allows festivals to screen unclassified films under certain conditions, however, exemptions are generally granted under the condition that each film is to be screened a maximum of four times during the course of a film festival/event and that audiences are restricted to age 18+.

The ALRC made a recommendation about exempting from classification films and computer games screened or demonstrated by certain entities including cultural institutions, namely Recommendation 6-3.

The ALRC also recommended that, under the proposed new NCS, the Classification Review Board cease to operate (Recommendation 7-9).

The Government will consider the Committee's recommendation in developing the Government response to the ALRC recommendations.

See also response to Recommendation 7.

Recommendation 10

The committee recommends that the Australian Government take a leadership role through the Standing Committee of Attorneys-General in requesting the referral of relevant powers by states and territories to the Australian Government to enable it to legislate for a truly national classification scheme.

Government Response – noted

The ALRC made the following relevant recommendations:

The Classification of Media Content Act should be enacted pursuant to the legislative powers of the Parliament of Australia (Recommendation 15-1).

The Classification of Media Content Act should express an intention that it cover the field, so that any state legislation operating in the same field ceases to operate, pursuant to s 109 of the Constitution (Recommendation 15-2).

The Government will consider the Committee's recommendation in developing the Government response to the ALRC recommendations.

Recommendation 11

In the event that a satisfactory transfer of powers by all states and territories is not able to be negotiated within the next 12 months, the committee recommends that the Australian Government prepare options for the expansion of the Australian Government's power to legislate for a new national classification scheme.

Government Response – noted

See response to Recommendation 10.

Recommendation 12

The committee recommends that, as a matter of priority, the Standing Committee of Attorneys-General should consider the development of uniform standards for the display and sale of material with a Restricted classification.

Government Response – noted

Consistency across jurisdiction is desirable for the consumer, industry and for compliance monitoring.

The ALRC made recommendations that are relevant to sale, display and restriction of access to content, in particular: recommendations 5-2, 8-5, 10-1 to 10-4 and 13-2. Consistency of laws and classification obligations nationally was also a key consideration for the ALRC in making recommendations 15-1 and 15-2 for a Commonwealth-only NCS.

The ALRC also recommended renaming the 'Refused Classification' category of content 'Prohibited' (Recommendation 11-1).

The Government will consider the Committee's recommendation in developing the Government response to the ALRC recommendations.

Recommendation 13

The committee recommends that:

Government response – noted

In relation to the first bullet point of this recommendation, see response to Recommendation 12.

In relation to the second bullet point of this recommendation, the ALRC made the following recommendations:

The Classification of Media Content Act should provide that content providers should take reasonable steps to restrict access to adult content that is sold, screened, provided online or otherwise distributed to the Australian public. Adult content is:

(a) content that has been classified R 18+ or X 18+; or

(b) unclassified content that, if classified, would be likely to be classified R 18+ or X 18+.

The Classification of Media Content Act should not mandate that all adult content must be classified (Recommendation 10-1)

The Classification of Media Content Act should provide the Regulator with the power to issue 'restrict access notices' to providers of adult content. For the purpose of issuing these notices, the Regulator should be empowered to determine whether the content is adult content (Recommendation 10-2).

The Classification of Media Content Act should provide that the reasonable steps that content providers must take to restrict access to adult content may be set out in:

(a) industry codes, approved and enforced by the Regulator; and

(b) standards, issued and enforced by the Regulator.

These codes and declarations may be developed for different types of content, content providers and industries, but could include:

(a) how and where to advertise, package and display hardcopy adult content;

(b) the promotion of parental locks and user-based computer filters;

(c) how to confirm the age of persons accessing adult content online; and

(d) how to provide warnings online (Recommendation 10-3).

The Government will consider the Committee's recommendation in developing the Government response to the ALRC recommendations.

Recommendation 14

The committee recommends that, as a matter of priority, the Commonwealth and the states and territories should establish a centralised database to provide for information-sharing on classification enforcement actions.

Government Response – noted

In February 2011, the then Minister for Justice wrote to Police Ministers and the Minister for Employment and Economic Development in Queensland requesting bi-annual reports on compliance and enforcement action taken in relation to classification laws. This initiative was agreed to by the Commonwealth, States and Territories at the Classification Enforcement Contacts Forum 2010.

These reports are now being compiled by the Classification Liaison Scheme (CLS) which is administered by the Commonwealth Attorney-General's Department and is responsible for collating and sharing the information received.

The Government will consider the Committee's recommendation in developing the response to the ALRC recommendations and, in particular, in relation to the role of the states and territories under a new NCS.

Recommendation 15

The committee recommends that the Classification Liaison Scheme should substantially increase its compliance and audit-checking activities in relation to, for example, compliance with serial classification declaration requirements.

Government Response – noted

The Classification Board currently has responsibility for conducting audits of serial declarations. All serial declarations are audited during the term of the declaration.

CLS compliance checks have increased from 701 in 2007/08 to 917 in 2010/11.

The Government will consider the Committee's recommendation in developing the response to the ALRC recommendations and, in particular, in relation to the role and size of the CLS under a new NCS.

Recommendation 16

The committee recommends that the Classification Liaison Scheme should have at least one representative in each state and territory.

Government response – noted

The ALRC envisages a new approach to compliance and enforcement in relation to classification matters. In particular it makes the following recommendations:

The Classification of Media Content Act should provide for enforcement of classification laws under Commonwealth law. (Recommendation 16-1)

The Classification of Media Content Act should provide a flexible range of compliance and enforcement mechanisms allowing the Regulator, depending on the circumstances, to:

(a) issue notices to comply with provisions of the Act, industry codes or standards;

(b) accept enforceable undertakings;

(c) pursue civil penalty orders;

(d) refer matters for criminal prosecution; and

(e) issue infringement notices. (Recommendation 16-2)

The Classification of Media Content Act should provide for the imposition of criminal, civil and administrative penalties in relation to failing to comply with:

(a) notices of the Regulator;

(b) an industry code or standard;

(c) restrictions on the sale, screening, online provision and distribution of media content;

(d) statutory obligations to restrict access to media content; and

(e) statutory obligations to classify and mark media content. (Recommendation 16-3)

The Classification of Media Content Act should require the Regulator to issue enforcement guidelines outlining the factors it will take into account and the principles it will apply in exercising its enforcement powers. (Recommendation 16-4)

The Government will consider the Committee's recommendation in developing the Government response to the ALRC recommendations.

Recommendation 17

The committee recommends that the Classification Liaison Scheme should be charged with responsibility for establishing and maintaining the centralised database to provide for information-sharing on classification enforcement actions, as proposed in Recommendation 14.

Government Response – noted

See response to Recommendations 14 and 16.

Recommendation 18

The committee recommends that the Classification Liaison Scheme should provide assistance to state and territory law enforcement agencies in relation to enforcement actions for failure to respond to call-in notices issued by the Director of the Classification Board.

Government Response – agree

This recommendation is already implemented. CLS officers currently provide assistance to law enforcement agencies in relation to referrals from the Director of the Classification Board of non-compliance with a call-in notice, or any other classification matter. Currently, CLS officers request the relevant State and Territory police to enforce breaches of call-in notices. All of the evidence establishing an offence will be presented by CLS. Such CLS assistance is prioritised and can also include presentations on content, offences and evidentiary certificates, as well as provision of witness statements, on site assistance and any other help requested.

Generally, CLS Officers meet with the nominated Classification Enforcement Contact in each law enforcement agency when conducting compliance checks in their jurisdiction.

Recommendation 19

The committee recommends that more detailed information should be included in the Attorney-General's annual report about the operations of the Classification Liaison Scheme.

Government Response – agree

Currently the annual report of the Attorney-General's Department provides information about the number of compliance checks conducted by CLS Officers.

It would be possible to include more detailed information about CLS. Further information about the activities undertaken by CLS can be included such as presentations delivered, meetings held and referrals. This will be included in future annual reports.Recommendation 20

The committee recommends that the Australian Government should increase the size of, and commensurate funding to, the Classification Liaison Scheme as a matter of priority.