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AusGamers ALRC National Classification Review Scheme Interview (Or How I Learnt to Stop Worrying and Love R18+)
Post by Steve Farrelly @ 08:36am 01/08/11 | Comments
AusGamers talks with the Australian Law Reform Commission's Terry Flew about the National Classification Review scheme and what it means for media and Australians in general. Read on for his clarificatory answers to our questions...

AusGamers: Hi Terry, we just want to say how great it is to speak to you and thank you for your time, we’re not really sure how often your commission actually speaks to gaming publications.

Terry Flew: Very happy to do so. I’ve been following the AusGamers coverage of the review and certainly a lot of people are very engaged with it.

AusGamers: Thank you very much, and yes our community is very engaged in the topic which is why we wanted to talk to you today - there seems to be a bit of a disconnect between what the general public understands of the Review Scheme and how the Attorneys-General conduct themselves in regards to the introduction of, not just an R18+ rating, but a complete overhaul of the classification system in Australia. So let’s begin there - how does the review scheme work alongside the SCAG meetings, because it seems convoluted and quite disconnected...

Terry: Sure, I can see how it could look that way from the outside. Why the ALRC is conducting the review that it is, is it’s actually the first comprehensive review of censorship and classification in Australia since the Australian Law Reform Commission conducted a review in 1991. Now while it looks like a lot’s been going on because there are various inquiries doing different pieces here and there - the most recent being the senate committee for legal and constitutional affairs reports - this is actually the first review of the system as a whole, and of course the big change since 1991 and the present is... well it’s the Internet, to put it simply, and media convergence more generally.

So one of the key drivers for this inquiry, and one of the key factors the ALRC needs to be considering, are the implications of media convergence for any future classificatory regime, and this inquiry is taking place in parallel with the convergence review that’s happening through the Department of Broadband Communication and the Digital Economy, although it’s headed by a three-person independent panel chaired by Glen Boram, the two reviews will be developing their findings in tandem and both are intended to make policy [and] legislative recommendations that respond more fully to the current media convergent environment, and to try and anticipate future developments, and recommend a framework that can adapt to those.

Rebellion's Aliens Vs Predator was initially RC'd here before being resubmitted and passing for an MA15+ rating, unchanged

AusGamers: How much gravity does something like this hold against the individual views of each Attorneys-General? Because obviously we’re stuck in a scenario where we need a unanimous vote for anything to actually pass legislation.

Terry: Yeah, well one of the anomalies of the classification regulation as it developed for computer games in Australia is the framework came into place before the Internet was really popularised...

AusGamers: Sure.

Terry: So what occurred was the extension of the framework as it applied to films and publications to computer games. Now, all Internet-based content sits outside of that framework, and has been incorporated with varying degrees of success into the online services amendments to the broadcasting services act which means that - and this would be one of the issues that our review needs to consider - games that are played online are subject to quite a different classificatory and regulatory regime, to games that are purchased from a shop. That is precisely the sort of anomalous arrangement that we need to address.

The question of why you need state and territories Attorneys-General to agree to something related to the classification act where obviously they're not consulted in relation to broadcasting or Internet-based services, goes back to the Australian constitution, and the manner in which the... [well] the Commonwealth of Australia was formed by what were then the Colonies agreeing to devolve powers to the new Commonwealth government as it was in 1901 of which it allocated post and telegraphy powers, which were subsequently interpreted to mean telecommunications and broadcasting, and the status of those areas that were not directly seated to the Commonwealth which historically has included books, films, publications and in this instance, computer games, remains somewhat unresolved constitutionally hence the sort of discussions we have at a forum such as the SCAG.

AusGamers: If we do reach a consensus to change one or more classifications in the country or actually overhaul the entire system, what sort of time-frame would we be looking at for implementation?

Terry: I’m not a legislator, so I’m not able to give you a precise answer on that, but I can give you my sense of it.

If the state and territories Attorneys-General agreed to the Minister’s recommendation around introducing an R18+ classification for games, my understanding is that [it] would not need to go to an amendment in the parliament... [though] I should say here I’m not a constitutional lawyer so I need to be a bit careful about anything I’d presume there, but the classification guidelines enacted by the Classification Board are not in themselves required to go through Parliament for approval...

AusGamers: Okay...

Left 4 Dead 2's RC case is one of the more famous secnarios here where the game was altered to suit an MA15+ rating

Terry: Okay. At least that’s my layperson’s understanding of it. If, however, there failed to be an agreement and the Commonwealth took the view that it should have sole responsibility in this area; a recommendation which incidentally was made by the Kennett legal and constitutional affairs committee chaired by Guy Barnett in their report that came out in the end of June, and that would require legislation. Because it involves the use of Commonwealth powers which can include, I believe, the commerce powers... the territory powers... we discuss this in the issues paper - [but] there is constitutional scope to change the regulatory framework so that it solely had Commonwealth responsibility, and I believe an example of that relates to wilderness legislation. So that can happen, but I think that would have to go to the Parliament so that would be a longer process, and given there is a minority government you couldn’t be sure of what the outcome of that might be.

So that’s my - as I said - non-constitutional laywer’s understanding of how...

AusGamers: No worries, we’ll make sure that’s made loud and clear (laughs).

Terry: (Laughs) great, thanks.

AusGamers: Okay, on another level, there’s a lot of talk regarding the states and territories going their separate ways on the issue, and we’re just hoping you can clarify the legalities behind that, and what it would mean for content coming into the country.

Terry: It’s possible, and in some areas it already exists. So, for example, in the publications area, a publication that is classified Restricted 1 cannot be publicly displayed in the state of Queensland, where I’m from, for instance. So you go into a newsagent or a Seven-Eleven in Brisbane and they look quite different to a newsagent in Sydney or Melbourne in terms of the types of magazines that are there. And to this day the Bret Easton Ellis novel, American Psycho, can’t be purchased legally in the state of Queensland, because it was classified Restricted Category 1.

So there are those differences, similarly in South Australia there’s a rule around not being permitted to advertise R18+ rated material in catalogues, which means that - and this was perhaps an unintended consequence - Target, Big W, K-Mart-type colour catalogues have to look different in the state of South Australia if they’re selling R18+-rated DVDs, which they nearly always are. So you do get these state-based regulations that generate certain complexities in the environment. We are of course seeking - in a consultation process - what industry stakeholder views are on that state of affairs, it seems - from my point of view - to be going in the opposite direction to where you would understand media, more generally, is going; which is that they’re not only becoming more National, but becoming more global; so, specific state regulations seem to be at odds with that...

[But] I guess like you, I’ll get a sense of the different points-of-view of the states Attorneys-General at the SCAG meeting, but as general principal in terms of facilitating trade and commerce on a National basis, let alone dealing with global media platforms such as the Internet, the idea of state-based regulations does seem to be anomalous. You know, there’s not a Queensland Internet or a South Australian Internet or a Tasmanian Internet, so that would be my sense of those discussions.

Fallout 3 was changed, globally, for its drug-references after being initially RC'd here in Australia

AusGamers: Talking about that global aspect, and again I’m not sure how much of this you can answer, but what’s the consensus around a self-regulatory system within the groups involved; has there been any progression in looking at something like that where, say, the games industry self-regulates or the film industry self-regulates?

Terry: It certainly can be a part of the review scheme. The issues paper that we circulated at the end of May spends quite a bit of time discussing different regulatory models, as they actually exist, that include co-regulation which applies in the broadcasting areas; self-regulation; direct government-regulation and what we call quasi-regulation, so that is absolutely in play, it could be an option... the submission from the Interactive Games and Entertainment Association is on the ALRC’s website, and there’s certainly an opportunity to have a look at that, and look at the framework that they’re recommending in relation to that and the commission has been in consultations with the IGA along with other stakeholders about other possible models. So that is an option that’s on the table; that it need not all be directly managed from the Classification Board’s offices in Surrey Hills.

AusGamers: Can you run us through the process of collating all of the public’s submissions and industry submissions from when the concept of changing the framework was introduced to the point where the ALRC will present your findings to the involved parties...

Terry: Yeah sure, as in what our time-lines are?

AusGamers: And I guess just the review process itself; is it literally just a case of taking, I guess, the most comprehensive public and industry submissions; how do you choose whose point-of-view...

Terry: Well, it’s... it’s a bit hard to answer that in that way because we’re certainly not taking the view that some submissions are more important than others. The ALRC process is a multi-stage process of putting out an issues paper for public consultation; developing a discussion paper for the next round of consultation, in terms of developing a final report to go to the Attorneys-General, and the ALRC has conducted over 100 inquiries using that sort of model. Also, though, we increasingly engage with social media platforms such as Facebook, Twitter... we’ll be developing a Blog around some aspects of the review in undertaking the consultation’s process.

One of the things that would be different to, say, the Attorneys-Generals process last year is that we wouldn’t be so much focusing on the weight of contributions; it’s not a matter of demarcating our submissions into gamers or Christians or artists or concerned parents or, you know, whatever category you may choose to put people in and then saying “well the majority said this, therefore that’s what we’ll do”. That’s certainly one of the things that we’d consider, but it’s one of a number of inputs in a deliberative process. So there will be opportunities to comment on the discussion paper that we’re intending to release in mid-September which will flesh out more specifically what our thinking has come to be based on - among other inputs - the submissions that we’ve received so far.

But in terms of how we’re doing it, to be honest, we have over 2000 submissions, which is far more than the ALRC has dealt with in previous inquiries and a lot of the work at the moment is simply reading everything and checking it can go up on the web; starting the process of analysing the content of the different submissions, you know, checking there’s nothing liabless in any of the submissions [laughs] and really getting this process up and running.

I mean that hasn’t 100% answered the question that you asked, but it’s probably the best answer I can give in terms of where the process goes from here. The main point being that the discussion paper will be released in September, and the final report is intended to be out by the end of January [2012].

Risen suffered a similar RC fate to Fallout 3 that also included "sexual incentives" it, however, was not altered for release

AusGamers: Are you approaching third-parties to contribute to the report in relation to, I guess, to stay on the videogame topic, the concept that violent games create violent behavior in children... that sort of thing?

Terry: Yeah, so certainly we’re keen to get the input of researchers who’ve specifically looked at those kinds of questions, and I take it you’re familiar with the work of Jeff Brandt from Bond University; he’s certainly someone whose input we’re seeking on those questions. I’m also aware that the submissions will also refer to research and literature in those areas, I mean you could look at the IGEA submission - it’s up on the web and that may make some reference to some of the research around those questions.

So yeah, definitely looking at what the research is, and I’m aware that in a sense... the burden of proof here is that the... because of the absence of an R18+ classification for games is premised on an assumption that the user interacts with the platform in a fundamentally different way to that being the case with other media. There’s a strong assumption there about the platform and our general sense would be that the classification framework needs to be more directly based upon questions relating to content rather than platform, so it seems an anomalous criteria in that it makes a very strong assumption about how users interact with the platform, and I’m not sure those are borne out by the empirical evidence - I’m certainly aware of a recent US Supreme Court judgement that rejected that proposition and had input from a very large number of scholars in the field.

AusGamers: Yeah, we were following that one very closely as well.

In regards to the concept of an introduction to an R18+ classification surely... the moral dilemma, I guess, with lobbyists like the ACL, for example, is that such an introduction would allow games of a violent and disruptive nature into the country and therefore immediately wind up in the hands of children. But surely the introduction of this rating would ensure that those particular games are only available to adults and then it’s actually at the discernation of parents to gauge how their kids are getting games...

I guess what I’m getting at is in this country there’re massive fines for selling alcohol to minors or cigarettes to minors, surely the same rule-set would apply to something like this as well?

Terry: I’m not sure what the laws would be as they applied to a games shop... I mean my apologies, but I’m just not... but your general point that when there are games that in other countries, both would be classified as R18+ or equivalent; in Australia some being classified MA15+ or Refused Classification outright, puts them in a category with what is a profoundly different type of... well what is profoundly different material that’s Refused Classification in film for instance, is very different sort of material. It looks decidedly odd when viewed from an international perspective and the point that you raise is I think is a valid one, that an R18+ classification could act to avoid some of the problems that may be perceived to arise from games or slightly modified versions of games being classified MA15+ which may arguably be better considered to be R18+ if that classification existed in the framework.

The latest RC victim here was Mortal Kombat which was appealed by Warner Bros, but rejected by the Classification Board

AusGamers: Okay, now I have two last questions for you Terry and then we’ll finally let you go. The first one is you mentioned that it’s the highest response in regards to weighing in on a topic, but you also mentioned that you had to go through and make sure that some of that stuff could be put up on the web - is there a percentage of responses coming through that are just ridiculous?

Terry: No, not by and large, no. Some submitters ask for their submissions to be confidential and we respect that, I mean the confidential criteria has typically applied in instances where there may be commercial in confidence material, although some submitters have asked for confidentiality even though that’s not the case, and so we respect that wish, you know, more submissions have been received than are publicly up on the website, but I would say that nothing should be read into that. As the first president of the Australia Law Reform Commission, Justice Michael Kirby, said in founding the commission his view was that the law was far too important to simply be left to the experts. So we have a public interest bias there...

No, I mean I’d heard one or two here and there... one simply said at the end, and I don’t know if you can quote me on this, “fuck John Howard” (laughs) which I’m sure John Howard’s interest isn’t important in the scheme of things (laughing), but no, so obviously we’re not putting that up on our website.

So no, the vast majority of contributions have engaged with what are quite complicated questions in a number of areas in a systematic, thoughtful manner.

AusGamers: I guess the final [question] and I’m not sure you’re really able to answer this...

Terry: I can actually let you know one other thing on submissions which is we are still awaiting some submissions from some industry and community stakeholders who’ve asked for extensions of time...

AusGamers: Right. Are you able to divulge the weight, I guess one way or another, in regards to “yes we do need an overhaul” or “no please leave it as it stands”?

Terry: No, because we haven’t had the time to go through that just yet, but what I do know is that, and you’d probably be aware of this, an article appeared on the ABC’s technology and games site that said it seemed like no one is interested in the ALRC’s enquiry because they’ve only received 80 submissions...

AusGamers: Yeah, we read that and went into action to spread the word...

Terry: Well you weren’t the only one because the number of submissions we had went from 80 to well over a thousand in about a week. And I would suspect the bulk of those would be responding to the question of R18+ for games. In terms of the rate of responses, we just don’t know yet, we haven’t had time to sit down and go through... and it’s also, you know, when people are providing you with a written submission it’s not always easy to just count the votes - people can have quite divergent views on a range of questions; what someone thinks about artworks as compared to games as compared to music could be quite different.

AusGamers: Was the actual questionnaire constructed internally by your selves?

Terry: Yes, yes it was. We took the view that the issues paper... it was in the public interest for the issues paper to go out quickly so that we could then gauge the public’s viewpoint. What I would say though is that any inquiry of this nature has terms of reference and those terms of reference are at the front of the issues paper and they’re important in how we go about our review process.

AusGamers: Well we’ll leave it there Terry, thank you so much for you time in helping clarify the issue and the ALRC’s role in it all...

Terry: Sure, [and] thank you for getting in contact with us!

Latest Comments
Posted 04:52pm 04/8/11
Just finished reading. Good work by the interviewer!

It sounds like this stuff is being evaluated by some pretty sensible folk, which is a boon for us.

Also good work promoting the issue, it sounds like you guys had a pretty significant effect on how many people ended up submitting a response.

and just a last little nitpick, thats libelous, not liabless :P
Posted 05:12pm 04/8/11
A one line bullls*** statement from the christian lobby generates pages of replies, a proper interview is tldr and two replies.
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