The federal government’s new Content Regulation Services Bill, which aims to bring all online and electronically delivered media under one piece of legislation, has now seen two exposure drafts distributed to a very small number of interested players. We may well see a third before the Bill is presented to the Parliament over the next few weeks.

The content provisions of the Bill affect members of the Eros Association and the Australian adult industry much more than any other industry group and yet a decision was taken within Prime Minister and Cabinet not to show the draft to us. This is in stark contrast to the open access to the Attorney General’s and Customs department that this industry has had over the last 10 years.

The extent to which Minister’s consult with the adult industry in the online and telecommunications environment is nearly always commensurate with how well their legislation stands up to legal and technical challenges later on. The industry wants to be included in regulatory regimes and wants to work with government to find acceptable ways of distributing its products.

The main problem with the Bill as it stands is that it criminalises media that is currently legal under the federal government’s Classification Act.

Whether intentionally or not, this Bill will destroy much of Australia’s half-a-billion dollar legal adult retail industry and deliver it into the hands of the black market.

The Bill wrongly assumes two things:

That media played on a disk or tape or written on paper, magically transforms into a more potent medium on a screen and needs to be regulated differently, and that printed media, text and the spoken word all become “films” for purposes of censorship just because they are viewed on a screen.

It accepts that age verification systems are sufficiently well advanced online to be used to verify people accessing content that is rated R18+ but denies those people seeking to access currently legal X18+ material. Under the Commonwealth’s Classification Act there is no difference between the age restriction of these two upper level categories. The only difference is the content. R18+ is largely characterised by high level violence, horror, bad language and other illegal or anti-social behaviours. X18+ is largely characterised by non violent and legal acts of explicit sex. With video almost dead as a delivery system for X18+ content and the shelf life of DVD rapidly drawing to a close, the adult industry is increasingly moving to the online arena.

This Bill is an attempt to ban the X18+ film by undermining and superseding the federal Classification Act. In its current form it will lead to a showdown with the ACT government over its X Film Licence Scheme. The ACT government owns half of the local online delivery system, Transact, which has been electronically delivering X18+ films into Canberra suburbs for many years now. This Bill would appear to criminalise the ACT government’s scheme, rob it of the revenue stream and possibly even open the ACT government to criminal charges through its part ownership of Transact.

However the final say may well lie with the ACCC. The Content Regulation Services Bill is about as anticompetitive as a new piece of legislation can be.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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