18 November 2005
Review of the Classification (Waiver of Fee) Principles
Below is EFA's submission to the Commonwealth Attorney-General's Department's Review of the Classification (Waiver of Fee) Principles 2000.
- Executive Summary
- Defendants in criminal proceedings
- Persons other than distributor of material
- Definition of "limited distribution"
- About EFA
- Waiving of fees should be mandatory where the applicant is a defendant in some types of criminal proceedings. Lack of availability of a review of a classification on the merits within the criminal justice system, together with the high fees charged for classification, results in potential for injustice. Such potential would be reduced by waiving of the classification fee.
- Waiving of fees for persons other than the distributor of the material, such as non-profit organisations, where the material is to be released for commercial purposes, should not be permitted. In instances where it would be in the public interest to waive the fee, the existing fee waiver principles provide appropriate grounds for distributors themselves to seek and receive a fee waiver.
- The 2000 fee waiver principles, in permitting fee waiver solely on the grounds that an organisation is non-profit, are unfair because they enable one category of "aggrieved persons" (non-profit organisations) to be granted a fee waiver but not other categories of "aggrieved persons" defined in the Act (as effective from March 2002). As a matter of fairness, all categories of "aggrieved persons" should be treated equally, and none should be entitled to a fee waiver for the reasons set out later herein.
- The definition of "limited distribution" in relation to computer games should be increased to a quantity of 50, the same as for films for sale or hire. In a world of media convergence, resulting in combined Classification Guidelines for film and computer games since 2003, it is impractical and inappropriate to require the Director to decide whether material is a film or a computer game (due to the difference in quantity applicable) in order to determine whether a fee waiver may be granted.
01. EFA appreciates the opportunity to make a submission concerning the circumstances in which the Director of the Classification Board may waive classification fees that would otherwise be payable under the Classification (Publications, Films and Computer Games) Act 1995 (Cth) ("the Act").
02. We observe that the current Classification (Waiver of Fees) Principles were determined under Section 91(1A) of the Act in September 2000 and that some provisions of the Act were subsequently amended and became operative in March 2002.
(b) where the applicant is a defendant in criminal proceedings in which the classification of material relevant to the proceedings is a material issue."
03. EFA considers that, not only should the Director be permitted to waive fees in the above circumstance, but that waiver of fees for a Classification Board decision, and a Classification Review Board decision, should be mandatory in at least the following circumstances:
- When the criminal proceedings relate to possession (not publication/distribution), that is, when the defendant was not under any legislated obligation to have the material classified.
- When the criminal proceedings relate to publication/distribution but the defendant can not be held criminally liable for publishing/distributing unclassified material because it is not an offence to publish/distribute material that has not been classified. This applies to all Internet content.
- In any circumstances in which the defendant is entitled to the services of a Public Defender.
04. In relation to (b) above, it should be noted that it would not apply defendants in criminal proceedings relating to the publication/distribution of cinema movies, videos/DVDs for sale or hire, computer games or submittable publications because it is a criminal offence (under State/Territory law) to publish/distribute unclassified material of that type (except for a very limited range of films that are exempt from classification, basically because they would be classified G or PG). Defendants would not be facing charges in relation to such material if they had complied with the law and had the material classified in the first place (unless they published/distributed the material knowing that it was an offence to do so as a result of having obtained a classification and hence certainly knowing the classification). It therefore does not seem appropriate to waive fees in circumstances where there was in effect a legislated obligation to pay a fee for classification prior to publication/distribution.
05. With regard to the circumstances in (a), (b) and (c) above, EFA has long been concerned that serious criminal justice issues arise from the fact that the Classification Board's classification decisions constitute prima facie evidence for the purpose of criminal prosecution and that no Court has the power to review a classification decision on the merits. While a defendant may seek a review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), the Court has no power to review a classification decision on the merits, only whether or not the Classification Board erred in law in its construction of, or application of, the National Classification Code. Furthermore, if the Board's conclusions were "reasonably open to it" there could not be a finding of error, even if the Board failed to give due weight to a relevant matter.
06. In the absence of a review on the merits being available within the criminal justice system, EFA considers that defendants in criminal proceedings should at least be entitled to a review on the merits by the Classification Review Board without paying a fee. We note that the Commonwealth has taken the view that it is undesirable to include provision in Commonwealth legislation allowing for the recovery of investigation costs from a convicted defendant because, among other things, "there is potential for injustice to a poorer defendant, who may be more inclined to admit guilt rather than risk the prospect of having to pay investigation costs". In our view, classification fees should be waived for the same type of reason. While the Classification Board's decisions constitute prima facie evidence, the Board is not the final arbiter of the classification of particular material and it is well known that the Classification Review Board has overturned decisions of the Classification Board. For example, in the 2003-2004 year the Review Board applied a lower classification than was applied by the Classification Board in five of the total of seven reviews. In the other two reviews, the same classification was applied.
07. The high fees charged for a Classification Review Board decision result in significant potential for injustice, especially in relation to computer images and Internet content due to the exorbitant and unfair fees charged. This situation exists because the Commonwealth has not prescribed classification fees specific to computer images and/or Internet content. Therefore the Classification Boards charge the same fee as for classification of a video (film for sale or hire) with a running time of 15 minutes. As a result the Classification Board's fee for a single computer image or web page is $510 and the Review Board's fee is $1270, notwithstanding that it would take far less time to classify a computer image (or most web pages) than it takes to classify a videotape that runs for 15 minutes, or an entire magazine the fees for which are $130 and $330 respectively. Furthermore, in the case of a defendant charged in relation to say, three, computer images apparently the Review Board's fees would total $3810 (i.e. $1270 x 3).
08. Moreover, EFA believes that the Classification Board's practice is such that less time and human resources are involved in classifying a computer image or Internet content because, according to information released to EFA under FOI, only one member of the Board classifies such material. The opinion of one member of the Classification Board cannot be said to be anything remotely like the opinion of a jury concerning the views of reasonable adults and is an additional reason why we believe a defendant in criminal proceedings should be able to obtain a review of the classification on the merits by the Review Board without paying a fee.
(a) for persons other than the distributor of material, such as non-profit organisations, where the material is to be released for commercial purposes such as general films and computer games."
09. We note that the Section 91 provision permitting the Director to waive fees for non-profit organisations has existed since the Act was originally enacted in 1995/96. However, since that time a number of amendments have been made to the Act, most relevantly to exempt a broader range of material (that would otherwise be classified G or PG) from classification, and also to permit the Director to waive fees for special interest material having a limited distribution (other than material that would be restricted to adults) when it is in the public interest to do so, in addition to the pre-existing permission to waive fees when it is in the public interest to do so for public health or educational reasons.
10. In view of those amendments, EFA considers it doubtful that there continues to be a valid reason for waiving fees for non-profit organisations on the sole ground that they are non-profit. We would expect that the type of material distributed by non-profit organisations would generally fall into one of the exemption categories or waiver categories that apply regardless of whether or not the distributor is a non-profit organisation. Nevertheless, it is not inconceivable that there may occasionally be material that, while not fitting within one of those categories, would be in the public interest to allow to be classified without payment of a fee, or on payment of a reduced fee. For that reason, EFA does not object to the continuation of Director's discretion to waive fees for a non-profit organisation when that organisation is the distributor of the subject material and the material is not being distributed for commercial purposes.
11. EFA is, however, opposed to the waiving of fees for persons other than the distributor of the material, such as non-profit organisations, where the material is to be released for commercial purposes, for the reasons set out below.
Inappropriate use of taxpayer funding
12. Waiving fees for persons such as non-profit organisations, where the material is to be released for commercial purposes by some other person or entity, results in tax payers being required to fund the application/activities of the non-profit organisation, including organisations that do not provide a public benefit entitling them to tax exemption.
13. It could also result in tax payers in effect contributing to the profit making activities of the distributor (because a non-profit organisation can apply for a fee waiver solely because they are non-profit, whereas the commercial distributor themself could not).
14. EFA considers that taxpayers should not be required to fund either of the above types activities. In the case of material being released for commercial purposes, if it is in the public interest to waive the fee, the existing fee waiver principles provide appropriate grounds for distributors themselves to seek and be granted a fee waiver.
Lack of fairness in relation to specified categories of "aggrieved persons"
15. We do not know how many, if any, applications for fee waiver have been made for classification by the Classification Board by persons/organisations who are not the distributors of the subject material. However, we are aware from publicly available information that a number of fee waiver applications for classification by the Review Board have been made by non-profit organisations claiming standing as an aggrieved person.
16. In our opinion (and it should be noted that EFA is a non-profit organisation) the existing fee waiver principles, in permitting fee waiver solely on the grounds that an organisation is non-profit, are unfair because they enable one category of "aggrieved persons" (non-profit organisations) to be granted a fee waiver but not other categories of "aggrieved persons". In this regard, we note that Section 42 of the Act states:
"(3) Without limiting paragraph (1)(d), if the decision referred to in that paragraph is a restricted decision, the following persons or bodies are taken to be persons aggrieved by the decision:
(a) a person who has engaged in a series of activities relating to, or research into, the contentious aspects of the theme or subject matter of the publication, film or computer game concerned;
(b) an organisation or association, whether incorporated or not, whose objects or purposes include, and whose activities relate to, the contentious aspects of that theme or subject matter."
17. Hence, under the existing fee waiver principles, a non-profit organisation to which (b) above applies can be granted a fee waiver solely because they are non-profit. However, individuals to which (a) above applies, and other types of organisations or associations to which (b) applies, and individuals who would have standing as a person aggrieved at common law, could not be granted a fee waiver.
18. EFA considers that, as a matter of fairness, either all categories of aggrieved persons/organisations should be entitled to a fee waiver, or none of them should be. We submit that none should be for the reasons set out below.
Opening the floodgates
19. We note that the Australian Law Reform Commission ("ALRC") recommended in its Censorship Procedure Report that "the class of appellants should be widened to include any person, unless the Review Board is of the opinion that the application is made in bad faith or that the applicant is merely meddling". In making that recommendation, the Commission said, among other things, that:
"Concern [by persons opposed to widening the class of appellants] about uncertainty of decisions and cost is based on a fear that broadening standing rights will 'open the floodgates'. In relation to the analogous question of public interest litigation, the Commission's earlier report concluded that that fear was unwarranted. In fact, the fees associated with an appeal would tend to discourage frivolous or speculative appeals and those without real public support."
20. We assume that the Commission's recommendation was not taken up in the 1995/96 legislation, nor the amendments expanding the definition of aggrieved persons in 2001, due to concerns about uncertainty of decisions and cost resulting from opening of the floodgates, notwithstanding that flooding would be very unlikely due to the fees associated with an appeal, as noted by the ALRC.
21. EFA considers that any change to the fee waiver principles that would permit the granting of a fee waiver to persons or organisations claiming to be aggrieved, more often than has been granted to date, has high potential to open the floodgates and as a result unduly increase uncertainty and costs. EFA considers any increase in uncertainty and cost is undesirable because it is likely to discourage distributors from attempting to screen or release material in Australia resulting in less opportunities for adults to choose to see, read and hear what they want.
22. Accordingly, EFA submits that the fee waiver principles should be amended to disallow the granting of a fee waiver to any person or organisation claiming, or having, standing as a person aggrieved.
Extension of uncertainty period arising from fee waiver applications
23. Since prior to 1991 there has been a specified period of 30 days following the date of classification by the Classification Board during which an application for review by the Review Board may be made. We understand that the purpose of the 30 day limitation has been to provide distributors with certainty of the classification so they may proceed with advertising and organising screening dates etc., without risk of subsequent change of classification and costs associated with changing advertisements containing classification markings or withdrawing advertisements and cancelling screening bookings in the case of a subsequent RC classification.
24. However, as a consequence of the 2001 amendments to the Act, the 30 day limitation has inadvertently been almost doubled, to 58 days, in the circumstance of an application for fee waiver made by a non-profit organisation claiming standing under the expanded definition of an aggrieved person (effective from March 2002). This situation exists because a non-profit organisation can lodge an application for both fee waiver and review on the 30th day, and the Director is legislatively provided with a period of 28 days to determine whether or not to grant a fee waiver. Hence it can be 58 days before the Review Board is able to commence considering the application for review and also 58 days before a distributor can know whether or not the classification will be reviewed.
25. While EFA recognises that it would probably be unreasonable to expect the Director to always determine a fee waiver application in significantly less than 28 days, we also consider it is unreasonable to extend the uncertainty period for distributors by 28 days.
26. Furthermore, the 28 day fee waiver determination period provides increased opportunities for uncertainty of the classification. A non-profit organisation could apply for a fee waiver on the 30th day, in circumstances where it is unlikely that it would be granted, with an objective of delaying the distributor's release or screening schedule.
27. Accordingly, we submit that the limitation of 30 days should be restored, to the situation that existed prior to March 2002, by disallowing fee waivers to any person or organisation claiming, or having, standing as a person aggrieved.
Need to appoint temporary members of the Review Board
28. In the OFLC Annual Report 2003-2004, the Convenor of the Review Board reported on issues arising from three applications for review of the same film, involving the same non-profit organisation, and suggestions by that organisation that members of the Review Board who had participated in the first panel should not be involved on a subsequent panel on the grounds that they may be biased. Among other things, the Convenor observed:
"If [the third] application had proceeded (it was withdrawn) only one member of the Review Board would have been available who had not participated in one of the two previous panels.
If Review Board members were unable to participate in panels in which they had considered preliminary material, then it could require temporary members to be appointed to consider matters."
29. We consider the potential need to use temporary members for reviews is of serious concern because we do not regard the legislated provisions and process of appointment of temporary members in any particular instance is adequately transparent and accountable. Appointment of temporary members may give rise to perceptions of selective appointment aimed at increasing the probability of a particular classification. While such perceptions could also exist in relation to the selection of a panel of non-temporary members, the Review Board's voluntary practice, in relatively recent years, of listing the members of each panel in classification decision reports and the Annual Report, provides transparency concerning matters such as whether some members might always be on panels involving a particular type of film, or whether a panel was inappropriately small in a particular case. We do not, however, consider that naming a person temporarily appointed for review of a particular film would provide an equivalent, or adequate, level of transparency concerning the operations of the Review Board.
30. Further, in cases where a fee waiver had been granted to a non-profit organisation appellant, the appointment of temporary members to review the film would result in increased and abnormal unrecoverable costs (e.g. payment of salary to temporary members for the period of their appointment) which would be funded by taxpayers. Also, it would seem impossible to appropriately budget for such costs due to the impossibility of predicting whether one or more non-profit organisations would seek more than one review of a film in any financial year.
31. EFA considers that reasonable efforts should be made to avoid the potential for a need to appoint temporary members to the Review Board. Accordingly, EFA submits that fee waivers should not be granted to any person or organisation claiming, or having, standing as a person aggrieved.
32. EFA also considers that the Act should be amended to prevent a person aggrieved from seeking more than one review of substantially the same material (i.e. a film for public exhibition and also a film for sale or hire such as a DVD), unless the first review resulted in the classification being changed.
33. We note that material of "limited distribution" is currently defined in Section 6(1)(c) of the Principles as follows:
- for a film for public exhibition - 3 prints or copies;
- for a film for sale or hire - 50 prints or copies;
- for a computer game - 20 prints or copies;
- for a publication - 50 prints or copies
34. EFA submits that the quantity applicable to computer games should be increased to 50. In our view, it is impractical and inappropriate to require the Director to decide whether material is a film or a computer game (due to the difference in quantity applicable) in order to determine whether a fee waiver may be granted.
35. As the Director remarked at the OFLC International Conference in 2003, media convergence had created problems for the Classification Board in deciding whether material was a game or a film in order to know which Classification Guidelines to use:
Previously, the Board used two sets of guidelines for audio-visual media - one for films and one for computer games.
But as I'm sure you're aware, with media convergence a film can contain a computer game and a game can contain a film.
Convergence such as this raised issues for the Board, who had problems trying to classify a film that contained a game, or a game that contained a film.
Potentially, the Board had to decide which guidelines to use - film or computer games.
The new Guidelines came into effect on 30 March this year.
They combine the existing guidelines for films and computer games into one unique set of guidelines that the Board can use with any electronic visual media."
36. Now that the Guidelines are the same (and the existing fee waiver provisions do not apply to material that is likely to be classified higher than MA15+, the maximum for games), there is no legitimate reason (if there ever was) for treating computer games differently from films for sale or hire and publications in relation to the quantity applicable for fee waiver. We submit that it is a waste of the Director's valuable time to require him/her to determine whether material is a film or game, in a world of media convergence, in order to decide whether he/she may grant a fee waiver. Hence we consider that the quantity applicable to computer games should be increased to 50.
37. EFA considers the existing fee waiver principles are, generally, appropriate in that they enable fees to be waived when it is in the public interest to do so. However we consider that a number of amendments should be made as discussed in detail above. In summary, these are:
- applicants who are defendants in some types of criminal proceedings (as detailed in Section 3 above) should be entitled to a fee waiver because it is in the public interest to minimise the potential for injustice arising from high classification fees and the lack of classification review on the merits within the criminal justice system;
- the principles should be amended to disallow waiving of fees for persons other than the distributor of the material, such as non-profit organisations, where the material is to be released for commercial purposes;
- as a matter of fairness, all categories of "aggrieved persons" should be treated equally and the principles should be amended to disallow the granting of a fee waiver to any person or organisation claiming, or having, standing as a person aggrieved, for the reasons detailed in Section 4 above.
1. Classification (Publications, Films and Computer Games) Act 1995 (Cth)
3. Classification (Publications, Films and Computer Games) Act 1995 (Cth), Section 91(1A) - Waiver of Fees
4. Discussed in Senate Legal and Constitutional Legislation Committee: Classification (Publications, Films and Computer Games) Amendment Bill 1998 and related bill: Discussion (Questioner: Senator Barney Cooney; Responder: Simon Webb, Acting Deputy Director, Office of Film and Literature Classification), Senate Hansard, 13 April 1999
5. Also, there is no merits review of decisions made by the Review Board, as stated in Answer to Questions in Writing: Office of Film and Literature Classification, Philip Ruddock MP (Attorney-General), House Hansard, 12 May 2005.
6. Michael Brown & Ors v Members of the Classification Review Board of the Office of Film and Literature  319 FCA, 24 March 1998.
Michael Brown, Melita Berndt, Ben Ross, Valentina Srpcanska v the members of the Classification Review Board of the Office of Film and Literature Classification  474 FCA, 6 June 1997.
7. A Guide To Framing Commonwealth Offences, Civil Penalties And Enforcement Powers, Attorney-General's Department, February 2004
8. Classification Review Board Annual Report, in Office of Film and Literature Classification 2003-2004 Annual Report, Part 3.
9. The basis of EFA's knowledge of the applicable classification fees is as follows. EFA sent a Freedom of Information application to the Office of Film and Literature Classification seeking, among other things, copies of documents (including copies of pages from OFLC procedure manuals or the like, memos to staff and/or Board members, etc) detailing the criteria or guidelines used by the OFLC to determine the appropriate fee for classification of Internet content that consists of a web site or a single web page or Usenet newsgroup posting. The OFLC was apparently unable to provide the information requested. The OFLC's response of 6 May 2002 stated that "information about the prescribed classification fees, ... is available free of charge from both the OFLC and the OFLC web site". However, the "prescribed" fees did not, and still do not, state whether a computer image or web page or newsgroup posting is regarded as an "interactive or click-on access film" ($690 or $1490), or a film with 0-15 minutes running time for "public exhibition" in a cinema ($770), or a film for sale or hire such as a videotape with 0-15 minutes running time ($510). However, subsequently in answers to Questions on Notice tabled in the Senate on 17 June 2002, the Minister for Communications, Information Technology and the Arts stated that $510 is the fee for classification of each "item" of Internet Content (i.e. a single web page, a single image, or a newsgroup posting). This is the same fee as for classification of a videotape for sale or hire of up to 15 minutes running time. We assume therefore that the Review Board's fee is also the same as for a videotape of up to 15 minutes running time, i.e. $1,270.
Answer to Questions on Notice: Information Technology: Internet Content: (Question No. 223), Senator Richard Alston (Minister for Communications, Information Technology and the Arts), Senate Hansard, 17 June 2002.
10. Classification (Publications, Films And Computer Games) Regulations (Cth), Schedule 1 - Fees
11. Classification (Publications, Films And Computer Games) Regulations (Cth), Schedule 2 - Fees for review of a decision
12. Copies of Classification Board Reports received by EFA under FOI show that only one person classified items of Internet content submitted by the Australian Broadcasting Authority ("ABA") under legislation that empowers the ABA (now ACMA) to obtain classification of content that the ABA (now ACMA) considers likely to be Refused Classification, or classified R18+ or X18+.
See example copy of a Classification Board Report: Page 1, Page 2, Page 3.
It is evident on Page 3 that only one classifier classified the material because the information blacked out does not cover a large enough area to contain more than one classifier's name. In addition, the "Voting Breakdown" space is blank.
13. Classification (Publications, Films And Computer Games) Regulations (Cth), Section 42 - The persons who may apply for review.
15. According to the ALRC Report referred to in 14 above.
16. Classification Review Board Report: Anatomie De L'enfer (Anatomy of Hell), 7 July 2004.
17. See note 8.
18. Practical response to classification of convergent media in the Australian context: the combined guidelines for films and computer games, Des Clark - Director, Office of Film and Literature Classification, OFLC International Conference 2003.
Electronic Frontiers Australia Inc. ("EFA") is a non-profit national organisation representing Internet users concerned with on-line rights and freedoms. EFA was established in January 1994 and incorporated under the Associations Incorporation Act (S.A.) in May 1994.
EFA is independent of government and commerce, and is funded by membership subscriptions and donations from individuals and organisations with an altruistic interest in promoting online civil liberties. EFA members and supporters come from all parts of Australia and from diverse backgrounds.
Our major objectives are to protect and promote the civil liberties of users of computer based communications systems (such as the Internet) and of those affected by their use and to educate the community at large about the social, political and civil liberties issues involved in the use of computer based communications systems.
EFA policy formulation, decision making and oversight of organisational activities are the responsibility of the EFA Board of Management. The ten elected Board Members act in a voluntary capacity; they are not remunerated for time spent on EFA activities. The role of Executive Director was established in 1999 and reports to the Board.