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1999
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT BILL (No. 2) 1999
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Attorney-General,
the Honourable Daryl Williams AM QC MP)
ISBN: 0642 426074
CLASSIFICATION (PUBLICATIONS, FILMS AND
COMPUTER GAMES) AMENDMENT BILL (No. 2)
1999
OUTLINE
The Classification (Publications, Films and Computer Games) Amendment
Bill (No. 2) 1999 (‘the Amendment Bill’) will make a significant
number of procedural and other amendments to the Classification
(Publications, Films and Computer Games) Act 1995 ‘(the Act)’.
The amendments include the abolition of the X classification for videotapes and
the creation of a new NVE (Non-violent Erotica) classification
category.
Under the national co-operative censorship scheme, any changes
to the classification categories, the National Classification Code, (‘the
Code’) and the classification guidelines (which are required to implement
the Government’s proposal on X rated videos) must have the unanimous
agreement of the Commonwealth, States and Territories. Implementation of the
Commonwealth’s proposal will also involve complementary State and
Territory legislation. The States and Territories have now agreed to the
Commonwealth’s proposal reflected in the Amendment Bill.
The other
miscellaneous amendments contained in the Amendment Bill have, in the main,
arisen from experience with the Act’s operation since it came into force
on 1 January 1996. These amendments, which have been agreed to by the States
and Territories, will also require complementary State and Territory
legislation.
The amendments included in the Bill expand the current range
of films exempt from classification. This has been done to ensure continued
availability of specialist product on the Australian market, which may be
affected by the cost of classification services. The additional categories of
films to be exempt fall typically into the limited market appeal category. To
preserve the integrity of the current classification scheme, the films exempted
will lose that exemption if they fall outside the G and PG classification. The
amendments also include an expansion in the range of persons and organisations
that can be considered to be ‘a person aggrieved’ for the purposes
of seeking a review of a classification decision.
It is anticipated that
the State and Territory legislation will follow passage of the Commonwealth Bill
and amendment of the Code and the classification guidelines will be finalised
prior to the amending legislation’s commencement.
The Amendment
Bill also makes consequential amendments to the Broadcasting Services Act
1992 to include a reference to NVE, in addition to the current references to
X and RC (Refused Classification) in relation to programs that cannot be
broadcast and will make similar amendments to the provisions of that Act
relating to online services.
FINANCIAL IMPACT STATEMENT
Expansion of the waiver power and of the range of films exempt from
classification is estimated to result in a loss of revenue of approximately
$0.3m annually.
The waiver and exemption provisions are not expected to
result in any significant reduction in the cost of operating the Classification
Board. Hence, no changes in operating expenses will result. The proposed Bill
will not result in any change to the net asset position for the
Commonwealth.
REGULATION IMPACT ON BUSINESS
Low Impact
• The financial impact on business is expected to
be minimal.
• Removal of legal uncertainties and procedural
anomalies within the scheme should reduce costs to business as well as improving
compliance levels.
• Expansion of the range of films exempt from
classification and the waiver of fees power will reduce costs to business and
will provide assistance to new or emerging short film makers dealing with
products which may have a limited market appeal.
• The impact on
the X-rated industry will not be great as it has the capacity to quickly access
and, where necessary, adapt material to be submitted for classification to
enable it to come within the guidelines for the proposed new NVE
classification.
REGULATION IMPACT STATEMENT
This Regulation Impact Statement relates to the Classification (Publications, Films and Computer Games) Amendment Bill (No. 2) 1999.
1. PROBLEM IDENTIFICATION
Censorship in Australia involves a revised co-operative Commonwealth, State and Territory legislative scheme which came into effect on 1 January 1996. Under the revised scheme, a Commonwealth body classifies material and State and Territory legislation provides for the enforcement of the classification decisions so made. The Commonwealth has only limited powers relating to censorship under the Constitution. To achieve a national scheme Commonwealth legislation and complementary State and Territory legislation is required. Accordingly, in the context of a co-operative national legislative scheme, any changes to the scheme must be agreed to by all participating jurisdictions.
The purpose of the regulatory scheme is to allow an independent and representative community body to classify material into categories and to provide consumer advice. This enables adults to make an informed choice about what they see and read and protects minors from material that may harm or disturb them. Under the scheme, material that offends community standards is refused classification and therefore banned.
The revised scheme has now been in operation for over three years. As with all new legislative schemes, experience with its operation has revealed the need for some procedural, technical and other amendments to improve its operation.
Accordingly, the Commonwealth has developed legislative amendments for this purpose in consultation with the States and Territories and has proposed specific amendments relating to X-rated videos.
A. Miscellaneous Amendments
Problems to be addressed by the miscellaneous amendments, as proposed, include:
1. Ensuring the continued availability of specialist film products on the Australian market, especially those with a limited market appeal which can be affected by the cost of classification services, by expanding the power of the Director to waive fees (in whole or in part) and by providing the Board with a power to issue certificates of exemption for specified classes of material on application;
2. Ensuring that new digital multimedia products are appropriately dealt with under classification laws and that imported materials are not unfairly penalised;
3. Ensuring that the Classification Board has power to determine consumer advice, as necessary, when classifying certain publications and computer games and that coin operated arcade game machines are required to display the determined classification markings;
4. Providing the Director of the Board with power, where none currently exists, to call-in a publication, film or computer game for reclassification;
5. Clarifying the definition of ‘submittable publication’ to reflect the National Classification Code and to ensure that ‘RC’ publications are included;
6. Providing for the revocation of classifications of interactive films or computer games that are found to contain material not brought to the attention of the Board which would result in a different classification;
7. Addressing historical inconsistencies in classification decisions in different States and Territories by empowering the Board to reclassify a publication or a film classified pursuant to an enforcement application prior to 1 January 1996 where it was classified under the law of one State or Territory or where it was classified differently in different States or Territories;
8. Removing doubt about the classification status of certain previously classified items by enabling the Board to classify a publication, film or computer game that may be the same or similar to a previously classified publication film or computer game where there is significant doubt about whether the items are identical.
9. Streamlining and improving the efficiency of the classification procedure for serial publications by providing the Board with power to issue and revoke serial classifications for publications in certain circumstances;
10. Protecting children from material that may be offensive to them by providing the Board with power to require certain publications to be sold in sealed wrappings.
B. X-Rated Material
The Commonwealth Government, in the context of a March 2 1996 election commitment, proposed to the States and Territories that the current X classification be abolished and a new classification category - NVE (Non-violent Erotica) - be established. The proposal involved the new category excluding undesirable material in the current X classification including mild fetishes, any depiction of violence whatsoever (the current guidelines only deal with violence in a sexual context), the use of sexually aggressive language and the portrayal of persons over 18 as minors.
The proposed amendments give effect to the Commonwealth Government’s proposal in relation to the X classification. The sale and hire of X rated videos (which contain sexually explicit material) is currently banned in all States but not in the Australian Capital Territory and the Northern Territory. The broadcasting of X-rated material on free-to-air television and Pay-TV is prohibited under the Broadcasting Services Act 1992 and X-rated material is prohibited content under that Act in relation to online services.
2. OBJECTIVES
The OFLC’s primary objectives with regard to classification are:
1. To assist adults to make informed decisions about films, publications and computer games which they or those in their care may read, view or play;
2. To enable the film, publishing and computer games industries to produce and market their products in accordance with public classification standards and preset conditions of sale and exhibition.
The specific objectives of these proposed legislative amendments are:
1. To improve the operation of the national legislative classification scheme; and
2. To give effect to the Government’s election commitment to abolish the X classification.
3. OPTIONS
Within the confines of the current co-operative legislative scheme, which reflects the agreement of all Australian Governments, the alternatives available include:
A. In relation to the proposed general amendments to the legislative scheme:
(i) making the procedural and other amendments to improve the operation of the national classification scheme; or
(ii) do nothing.
B. In relation to X-rated videos:
(i) placing all the material currently allowed in the X classification into the RC (Refused Classification) category and thus banning its sale or hire; or
(ii) doing nothing and thus allowing the current X classification to continue; or
(iii) further curtailing the type of material allowed in the current X classification and placing it in a new category, NVE, whose name would more accurately reflect the material contained in it.
Option A(i) improves the regulatory scheme for publications, films and computer games. It rectifies legal anomalies and procedural difficulties with the current arrangements which have been raised by industry and enforcement authorities. It exempts from classification certain specialised product which does not contain contentious material. Concerns about the unforeseen effect of the classification requirements for advertisements on certain imported fixed format products, such as DVDs are addressed.
Option A(ii) would not address the concerns of industry, enforcement authorities or the public about aspects of the classification scheme which require rectification, streamlining or clarification. This option would not conform to the principles of regulation review and improvement, nor would it conform with the agreement made with States and Territories to proceed to improve the operation of the national classification scheme.
Option B(i) would be welcomed by those in the community who find ‘X’ - rated material offensive and consider that it should not be available in this country. However, banning the material would be contrary to the censorship principles agreed to by all Australian Governments; run contrary to the unanimity required under the co-operative national scheme (some jurisdictions would not agree to the ban); be likely to drive the adult video industry underground (and open the way for the introduction of criminal elements into it) and thus increase enforcement difficulties for police. Further, while sexually explicit material may be considered offensive by some members of the Australian community there are not considered to be sufficient grounds, as a matter of public policy, to deny adults generally the freedom to access non-violent sexually explicit videos if they so wish.
Option B(ii) would not address the concerns by some in the community about the availability of sexually explicit videos or concerns by the Government and others about some of the content currently permitted in the X category. Nor would it deal with the misconceptions held by some in the community about what the X category actually contains.
Option B(iii) maintains a strict regulatory scheme to control the content and availability of videos containing sexually explicit material. This ensures adequate protection for minors and those that may be offended by such material. Under this option, the new category will more accurately describe the type of material contained in it and undesirable content will be removed. It will remain a matter of individual choice for adults as to whether they access the material for viewing in the privacy of their own homes. Under this option it would remain a matter for each State and Territory to determine whether or not to continue the existing restrictions and bans on sexually explicit videos, as is currently the case.
Accordingly, options A(i) and B(iii) are the preferred options.
4. IMPACT ANALYSIS
The procedural amendments will impact on businesses involved in the importation and distribution of publications, films and computer games and on businesses, governments and individuals who make applications for classification of such products. The Government’s proposal in relation to the X classification will impact on the X-rated video industry and those consumers wishing to access the material.
The financial impact on business is expected to be minimal. Industry will benefit from the procedural amendments as proposed, as will enforcement authorities and consumers. Certain innocuous products will no longer be required to be submitted for classification, and classification fees may be waived for certain special interest material having a limited distribution if it is in the public interest to do so. It is expected that this will reduce costs to business and will provide assistance to new or emerging film makers dealing with products which may have a limited market appeal.
Legal uncertainties and procedural anomalies within the scheme will be removed. It is expected that these changes will reduce costs to business as well as assisting enforcement authorities in the prosecution of classification offences and improving legal compliance levels.
It is estimated that the Government’s decision on the X classification may effect between 15% and 20% of X-rated videos per year. However, the industry has the capacity to quickly access, and, where necessary, adapt material to be submitted for classification to enable it to come within the relevant classification guidelines.
Some consumers of X-rated material may be disappointed at losing some of its current content under the new NVE category. Others in the community who seek a ban on all sexually explicit material, as a matter of principle, may be disappointed by the creation of the NVE classification.
The alternative, a ban on X-rated videos would, of course, have put an end to the adult video industry, as currently regulated, and deny consumers legal access to the material.
Assessment of Costs and Benefits
Option A(i) is estimated to reduce the cost to business and to reduce net revenue to Government from classification fees forgone by approximately $0.3m per annum. Benefits to industry include broadening the categories of exempt material (at the ‘G’ and ‘PG’ level only) and expanding the fee waiver criteria It is expected that while the expansion of the exemption categories may result in fewer applications for classification, at least an equivalent number of applications for exemption approval will be received, at an estimated net cost of approximately $0.25m per annum in revenue foregone without any commensurate reduction in workload. It is also expected that broadening the criteria for waiver of classification fees may result in a net revenue loss of approximately $0.05m per annum without any commensurate reduction in workload.
It is also expected that business and enforcement costs will reduce as a result of the removal of legal uncertainties, which in some instances have thrown prosecutions into doubt.
Option A(ii) has no immediate cost implication, however business and enforcement agencies will continue to be adversely affected by existing legal uncertainties and procedural anomalies.
Option B(i) - at the time the Government’s decision was made, the X-rated industry alleged that it had an annual turnover of about $34m and employed about 142 people. At that time, the Office of Film and Literature Classification’s revenue from classifying X-rated videos was about $0.674m and licence fees collected by the Australian Capital Territory were estimated to rise to between $150,000 to $200,000. This option would close down the current legally operated industry.
Option B(ii) - would have had no cost implications.
Option B(iii) - as far as can be ascertained from discussions with the industry, further restricting the material to be found in the current X-rated classification and creating the new NVE category is expected to have a minimal impact on the adult video industry in view of its capacity to access and adapt, as necessary, its product to meet changing content requirements referred to earlier.
This option also enables sexually explicit material to remain legally available for those Australians who wish to access it. Further, the establishment of the new NVE category will accurately reflect the material contained in it and should, over time, finally put at rest misconceptions in the community as to what the category actually contains.
5. CONSULTATION
The States and Territories have been consulted about the miscellaneous amendments and have indicated their support.
Extensive consultation has also occurred with industry. The proposed amendments will be of assistance to business, and the industry has indicated its agreement and support for the changes.
The Government’s decision on the X classification was preceded, and followed, by extensive and detailed consultations with the States and Territories. All States and Territories have now agreed to the Commonwealth’s proposal. Consultation has also occurred with representatives of the adult video industry.
Some in the community support a total ban on sexually explicit material and have indicated that they would favour placing all such material in the RC category as opposed to the new NVE category.
6. CONCLUSION AND RECOMMENDED OPTION
The package of amendments addresses procedural difficulties and anomalies in the revised regulatory scheme and will improve its operation.
The Government’s proposals to broaden the exemption categories and the fee waiver criteria provide a reasonable and fair response to concerns about the impact of the existing classification regime on certain material of special interest which is the work of new or emerging film makers.
The Government’s decision to create the new NVE category and further restrict its content is a realistic response to dealing with the availability of sexually explicit material and pays due regard to the interests of the significant number of Australian consumers who wish to access the product.
It ensures that sexually explicit material is openly and legally regulated and, given the demand for the material, avoids the inevitable creation of an illegal market with all the enforcement difficulties that would entail.
In doing so it preserves the integrity of the national classification scheme thereby ensuring that appropriate legal protections are maintained in the community interest.
7. IMPLEMENTATION AND REVIEW
Administrative Simplicity, Economy and Flexibility
The proposed changes can be implemented within the current regulatory framework and should not add to the administrative burden of business.
Explanatory Material
In view of the need for legislative amendment by the Commonwealth, as well as the States and the Territories, ample opportunity will be given for the industry to prepare for the change. The industry is already aware of the detail of what is being proposed and supports the changes.
The national classification scheme is under constant review by Commonwealth, State and Territory Censorship Ministers.
The classification guidelines for publications, films and computer games are the subject of serial review. The classification guidelines for films and videotapes were last reviewed in 1995/96. This involved an extensive public consultation process. Further amendment of the guidelines will be required to implement the Government’s decision and it is proposed to table the proposed amendments in Parliament when the amending legislation to abolish the X category and create the NVE category is introduced.
Further, it is proposed that the classification guidelines, including those for film and videos, be reviewed every 5 years to ensure they continue to reflect current community standards.
Consultation with the industry about the operation of the
classification scheme is ongoing.
CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT BILL (No. 2) 1999
SUMMARY OF AMENDMENTS
As indicated in the Outline, this Bill contains a significant number of procedural and related amendments to the Act. For ease of reference, set out below is a brief description of the main changes to be made and the item number in the Schedule that will effect the change. A more detailed explanation of each item in the Schedule follows this summary (in the Notes on Clauses). The proposed amendments will:
• amend the definition of advertisement to exclude advertising in an imported publication (or an imported film or computer game which is in a form that cannot be modified), for a publication, film or computer game that has not been published in Australia (item 2).
• amend the definition of contentious material to include material that would be likely to result in an M or higher classification (item 4).
• ensure that a film also includes the sound track of the recording (item 8).
• amend the definition of submittable publication to reflect the National Classification Code and to specifically include publications that would be refused classification (item 11).
• restructure the provision dealing with a film or computer game that contains more than one work (items 12 and 25).
• expand the range of exemptions for films and define the material encompassed by the terms exempt film and exempt computer game (item 13).
• supplement the definition of computer game to make it clear that it also includes what are called add-ons (items 13 and 27).
• abolish the X classification category and create a new NVE category (items 14, 16, 33, 47, 50, 58 and 59).
• allow the Classification Board (‘the Board’) to classify future issues of a periodical publication by declaration, and to revoke such a declaration in certain circumstances (item 17).
• allow the Board a discretion, when classifying a publication Unrestricted or Category 1 restricted, to impose a condition that it not be sold unless it is contained in a sealed package or an opaque sealed package, respectively (item 18).
• require that a copy of a film and computer game be lodged with the application for classification (items 19 and 26 respectively).
• insert a new provision giving the Board a discretionary power to decline to deal with an application for classification of a computer game if, in the opinion of the Board, it is more appropriately dealt with as a film (item 21).
• deal with the classification of amusement or arcade games that cannot physically be submitted for classification (items 26, 30 and 41)
• allow an application for the classification of a computer game to include particulars of any contentious material in the game and of the means by which access to that material may be gained (item 27)
• empower the Board to decline to deal with an application for classification of an interactive film or to decline to deal further with the application unless the applicant demonstrates the film before the Board (item 31).
• give the Board a discretion to determine consumer advice for computer games classified G and for publications classified Unrestricted (item 35).
• provide for revocation (rather than automatic declassification) of the classification of an interactive film or computer game that is found to contain contentious material which would have resulted in a different classification if it had been brought to the Board’s notice prior to classification (item 37).
• provide that a publication, film or computer game must not be classified if it contains an advertisement that has been refused approval (item 38).
• enable the Board to classify a publication, film or computer game that may be the same or similar to a classified item in certain limited circumstances (item 42).
• enable the Director of the Board to call-in unclassified films or computer games that the Director believes are not exempt films or computer games (items 43 and 44, respectively).
• allow for the issuing of a certificate that a film or computer game is an exempt film or exempt computer game as the case requires and of the revocation of such a certificate in certain circumstances (item 46).
• enable the Director of the Board to call-in a publication, film or computer game for reclassification (item 49).
• make provision for those persons who are taken to be ‘a person aggrieved’ for the purpose of seeking a review by the Classification Review Board of a classification decision (items 51 and 52).
• enable the Director to call-in a publication, film and computer game for the purposes of a review by the Classification Review Board (item 53).
• permit, in certain circumstances, charges to be waived in whole or in part for a short film from a new or emerging film maker (item 55).
• allow the Board to reclassify a publication or film classified pursuant to an enforcement application under the previous scheme where it was classified under the law of one State or Territory only or where it was given a different classification in different States or Territories (item 56).
NOTES ON CLAUSES
Clause 1 - Short title
1. Provides for the amendment Act to be cited as the Classification (Publications, Films and Computer Games) Amendment Act (No. 2) 1999.
Clause 2 - Commencement
2. This clause provides that the amendment Act commences on a day to be fixed by proclamation or if it does not commence within twelve months of the date of the Royal Assent, it commences on the first day after that period. The twelve month period allowed before commencement is to give sufficient time for the complementary State and Territory legislation to be enacted.
Clause 3 - Schedule(s)
3. This clause provides for amendment of each Act specified in the Schedule and that any other item in the Schedule has effect according to its terms.
Schedule 1 - Amendment of the Classification (Publications, Films and Computer Games Act) 1995
Item 1 - Section 5
4. Item 1 will insert a new definition in section 5 (Definitions) of the Classification (Publications, Films and Computer Games) Act 1995 (the Principal Act) of an add- on following insertion of new sub-section 5A(2) by item 13.
Item 2 - Section 5 (at the end of the definition of advertisement)
5. This item will amend section 5 to exclude certain advertising from the definition of advertisement.
6. The main exclusions are advertising in an imported publication for a publication, film or computer game that has not been published in Australia, and advertising for a film or computer game that has not been published in Australia in an imported film or computer game where the latter are in a form that cannot be modified. As the physical form of the film or computer game imported will not change, this exclusion will continue even if the film or computer game that is advertised is subsequently published in Australia.
7. Many imported publications contain advertisements for publications, films and computer games that have not been published in Australia. It was never the intention of the new censorship legislation to prevent these publications being classified in Australia or to require that such advertisements be removed.
8. Further, with the advent of new technology it is not possible with certain recordings, such as DVD disks, for an importer to edit the imported disks to remove advertising for films or computer games that have not been published in Australia.
9. The amendments will not affect the ability of the Classification Board (‘the Board’) to deal with the excluded advertising when classifying the publication in question ie. the content of the advertisement can still be taken into account in determining what classification to give to the publication, film or computer game as a whole.
Item 3 - Section 5 (definition of computer game)
10. This item will repeal the current definition of computer game. A new definition is inserted by Item 13.
Item 4 - Section 5 - (definition of contentious material)
11. This item will repeal the definition of contentious material and insert a new definition that defines contentious material to mean material that would cause a film to be classified M or a higher classification or for a computer game M(15+) or a higher classification. The current definition of contentious material is interpreted as only applying to material that would cause the film or computer game to be classified MA or MA(15+), respectively, or higher. Given the expanded range of exempt films and exempt computer games and the range of material in the M classification category it is considered appropriate that the type of material encompassed by the definition be set at the M and M(15+) or higher classification level.
Item 5 - Section 5 (definition of decision)
12. Section 5 of the Principal Act defines those decisions of the Board for which an appeal lies to the Classification Review Board. This item will insert a revised definition of decision in section 5 which will include the decisions referred to in new subsections 13(3) and (5), in new sections 13A, 21A and 22B, in new Division 6 of Part 2 and in new sections 41A and 97A to be inserted by Items 17, 18, 37, 42, 46, 50 and 56, respectively.
Items 6 and 7 - Section 5
13. These items will insert new definitions in section 5 of the Principal Act of exempt computer game and exempt film (see new section 5B to be inserted by item 13).
Item 8 - Section 5 (definition of film)
14. This item will amend the definition of film to make it clear that it also encompasses the sound track of the recording. Modern technology has produced recordings which contain visuals images but which can also include some tracks that comprise sound only.
Item 9 - Section 5 (paragraph (c) of the definition of film)
15. This proposed amendment is consequential upon the insertion, by item 13, of a new provision (section 5B) specifying an expanded range of films that are exempt from classification.
Item 10 - Section 5
16. This item will insert a definition in section 5 of the Principal Act of interactive film.
Item 11 - Section 5 (definition of submittable publication)
17. This item will repeal the definition of submittable publication and insert a new definition to make it clear that a submittable publication also includes a publication that would be refused classification or which is unsuitable for a minor to see or read.
Item 12 - Section 5 (definition of work)
18. This item will repeal the definition of work and insert a new definition of work consequent upon insertion of new section 16 by item 25.
Item 13 - After section 5
19. This item will insert a new section 5A (meaning of computer game). This new definition has been included to ensure that products (called add-ons) which introduce new elements or additional levels into an existing computer game when played in conjunction with that game are also computer games for the purposes of the Principal Act.
20. The existence of additional material in an add-on cannot affect the classification of the original game when played on its own. When an add-on is played with a parent game a new version of the game is effectively created. The new version may warrant a different classification or consumer advice from the original game. It is common for the content of add-ons, when played in conjunction with the original game, to warrant a classification which is either the same as or higher than the classification given to the original game.
21. Item 13 will also insert tables specifying films and computer games that are exempt films or exempt computer games, respectively. While the current range of computer games exempt from classification remains the same, films exempt from classification will be expanded to encompass current affairs, hobbyist, sporting, family, live performance, musical presentation and religious films.
22. The films that are exempt under the new provision are usually distributed in relatively small numbers in Australia. Exempting them from classification, and thereby removing the need to pay a classification fee, will encourage the continued availability of limited market appeal product in Australia.
23. A film is not an exempt film if it contains material that
would be likely to cause it to be classified M or higher (ie. it must fall
within the G or PG classification). A computer game is not an exempt computer
game if it contains material that would be likely to cause it to be classified
M(15+) or higher. Films are not exempt films and computer games are not exempt
computer games if they contain an advertisement for an unclassified film or
computer game, an advertisement that has been refused approval, or an
advertisement for a film or computer game classified M or MA(15+), respectively
or higher.
Item 14 - Subsection
7(2)
24. Subsection 7(2) sets out the different types
of classification for films in ascending order. This amendment repeals the X
(Restricted) classification and substitutes NVE (Non-violent
Erotica).
Item 15 - At the end of section 8
25. This item will amend section 8 of the Principal Act to enable the Director to specify additional material to be included in determined markings for an add-on and for a publication that has been classified subject to a condition under new section 13A (which relates to wrapping of publications) to be inserted by item 18. The amendment will also enable the Director to determine markings for a film or computer game for which a certificate of exemption has been granted under new Division 6 of Part 2 to be inserted by item 46.
Item 16 - Subsection 10(2)
26. This item will insert a replacement subsection 10(2) in the Principal Act consequent upon the insertion of new sections 41A and 97A by items 50 and 56, respectively. Its effect is to remove the requirement that an application be made for reclassification of a film referred to in those new sections when it is made at the Board’s own initiative or at the request of the Commonwealth Minister.
Item 17 - At the end of section 13
27. This item will insert new provisions in the Principal Act to allow for the ‘serial’ classification of periodicals.
28. Under the previous legislative scheme there were provisions enabling a classifying officer, when classifying a publication, to direct that the same classification extend to subsequent editions of that publication. The Australian Law Reform Commission in its Report on Censorship Procedure recommended that this provision be continued under the new legislative scheme, now reflected in the Principal Act, as there was no opposition to it during the consultations which preceded its report. The facility benefits distributors and publishers of periodicals which are of consistent standard. The proposed provision includes a power in the Board to revoke the classification at any time if a particular issue of the publication exceeds the bounds of the periodical’s classification.
Item 18 - After section 13
29. This item will insert a new section 13A in the Principal Act to allow the Board, when classifying a publication Unrestricted, to impose a condition that it be sold in a sealed package or when classifying a publication Category 1 restricted to impose a condition that it be sold in a plain opaque sealed package.
30. The purpose of the sealed packaging for some Unrestricted publications is to restrict ease of access, particularly by young children, to the material (usually of a sexually orientated nature) contained in the publications.
31. Currently, publications that are not considered to be suitable for public display (whether at the Unrestricted or Category 1 restricted level) must be classified Category 2 restricted in accordance with the stringent public display criteria for covers.
32. The provision to be inserted by this item will enable the Board, in cases where a publication would warrant an Unrestricted or Category 1 restricted classification but its cover exceeds the criteria for public display (other than a cover which itself warrants Category 2 restricted or an RC classification) to classify the publication Category 1 restricted with the requirement that it be sealed in a plain opaque wrapper.
Item 19 - Before subparagraph 14(1)(d)(i)
33. This item will amend section 14 of the Principal Act to make it clear that a copy of the film must be supplied when an application is made for classification of a film.
Item 20 - Subparagraph 15(1)(b)(i)
34. This amendment is consequential upon the insertion of a new definition of computer game in section 5A and deletion of the definition from section 5 the Principal Act.
Item 21 - After subsection 15(1)
35. This proposed provision will provide the Board with a discretionary power to decline to deal with an application for classification of a computer game if, in the opinion of the Board, it is more appropriately dealt with as a film.
36. With an increasing number of recordings containing
computer generated images which allow some degree of interactivity, the Board
has been receiving some applications for classification of computer games which,
in its view, are more appropriately dealt with as films. The proposed provision
will enable the Board to address this
problem.
Item 22 - Paragraph
15(2)(b)
Item 23 - Subsection
15(3)
Item 24 - Subsection 15(4)
37. The amendments to be effected by these items are consequential upon the insertion of new subsection 1A in section 15 of the Principal Act by Item 21.
Item 25 - Section 16
38. This item will repeal section 16 in the Principal Act which relates to prescribed fees payable where a film contains more than one work. The current scale of fees makes this section redundant. This item will substitute a new section 16 to enable the Board to decline to deal with an application if a film or computer game is contained on more than one device and each device contains a separate work. Where the Board so declines it must notify the applicant in writing of the decision and reasons for the decision and invite the applicant to submit an application for classification of each work as a separate film or computer game.
Item 26 - After paragraph 17(1)(c)
39. This item will require an application for classification of a computer game that is an add-on to be accompanied by a copy of the computer game into which the add-on is capable of generating new elements or additional levels. It also requires an application for classification of a computer game to be accompanied by a copy of the game unless the game is an amusement or circuit board game that is physically impractical to submit to the Board’s premises for classification. In the latter instance the Board is to be given access to the game for the purpose of classification (see item 30).
Item 27 - Subsection 17(2)
40. This item will insert a new subsection 17(2) in the Principal Act. The current subsection 17(2) provides that an application for classification of a computer game must be accompanied by a videotape recording of any game play likely be regarded as containing contentious material. This was inserted to make it easier for classifiers to find that part of the game containing this material. Due to technological advances, the Office of Film and Literature Classification (‘OFLC’) considers it is now appropriate to also allow an applicant to give particulars of the contentious material, and the means by which access to that material may be gained, rather than just submitting a videotape recording of the material. While the latter will still be an option (but expanded to include any type of separate recording) the proposed amendments will give OFLC more flexibility in dealing with an application.
41 The amendments to be made by the item also make it clear that if the application is for a computer game that is an add-on the Board must classify the add-on with the original game.
Item 28 - Subsection 18(1)
42. This item will amend subsection 18(1) of the Principal Act which provides that the Board must assume, in classifying a film or computer game, that the film or game will be published only in the form in which it is considered for classification. This provision ensures that an applicant cannot change the form of the film or computer game and still rely on the original classification given to it by the Board. An instance has occurred in relation to a publication which makes a provision of this kind also relevant to a publication. The provision is therefore to be amended to also encompass publications.
Item 29 - Subsection 18(2)
43. This item repeals subsection 18(2) which is no longer necessary in view of the new section 16 inserted by item 25.
Item 30 - Paragraph 19(1)(a)
44. The amendment to be effected by this item will require an applicant for classification of an amusement or circuit board game, which is physically impracticable to submit to the Board’s premises for classification, to allow the Board access to the game for classification purposes.
Item 31 - After subsection
19(1)
Item 32 - Subsection 19(3)
45. Item 31 will insert a new subsection 19(1A) to allow the Board to decline to deal with an application for classification of an interactive film or deal further with an application unless the applicant demonstrates the film before the Board. Advances in technology have seen an increase in the number of interactive films being produced and a provision of this kind is needed to enable the Board to satisfactorily classify the material. A provision along these lines already exists in the Principal Act for computer games.
46. Item 32 makes a consequential amendment which will require
the Director of the Board to notify the applicant in writing of the
Board’s decision.
Item 33 - Paragraph
20(1)(a)
47. Paragraph 20(1)(a), among other matters, requires the
Board to determine consumer advice where it classifies a film X. This amendment
substitutes a reference to an NVE film for the reference to an X film.
Item 34 - Paragraph
20(1)(b)
Item 35 - Subsection
20(2)
48. Section 20 of the Act makes it mandatory for the Board, if it classifies a computer game G or above to determine consumer advice giving information about the content of the game. This is to be contrasted with a film classified G where the Board has a discretion whether or not to determine consumer advice. In many cases no consumer advice is warranted for films classified at the G level. Similar considerations apply to computer games classified G and the proposed amendment to be effected by this item will bring computer games into line with films.
49. There is currently no requirement to provide consumer advice for publications. However, some publications that are submitted, and subsequently classified Unrestricted, contain stronger elements that should be brought to prospective purchasers’ attention. The proposed amendment will enable this to be done.
Item 36 - Subsection 21(2)
50. Subsection 21(1) of the Principal Act provides that a classified film or computer game becomes unclassified if it is modified. This does not apply when the modification consists of the addition of certain advertisements. The amendment to be effected by this item provides that a film does not become unclassified when such an advertisement is removed from it or where advertising referred to in paragraph (f) of the definition of ‘advertisement’ in section 5 (to be inserted by item 2) is removed from an imported film or computer game that was in a form that cannot be modified. The latter could be the case where, for example, the film is subsequently released on videotape which can be modified.
Item 37 - Section 21A
51. This item will repeal section 21A in the Principal Act and substitute a new section to improve the procedure where the Board decides that a classified interactive film or a classified computer game contains contentious material that was not brought to the Board’s attention before the classification was made.
52. Under the current section once the Board decides that the film or computer game contains material not brought to its attention, and the material would have resulted in a different classification, the film or computer game is taken never to have been classified. Under the revised provision the Board will be required to revoke the classification and the decision will take effect from the date the revocation is notified to the original applicant.
Item 38 - Before subsection
22(1)
Item 39 - Paragraph
22(1)(b)
Item 40 - Subsection
22(2)
53. Section 22 of the Principal Act prevents a film or computer game being classified if it contains an advertisement for a film or a computer game that has not been classified or it contains an advertisement for a film or computer game that has a higher classification. The amendments to be made by these items prevent the classification of a publication, film or computer game that contains an advertisement that has been refused approval.
Item 41 - At the end of section 22A
54. The purpose of the new subsection 22A to be inserted by this item is to make it clear that an enforcement application need not be accompanied by a copy of a computer game if the game is an amusement or circuit board game that, in the opinion of the Board, is physically impracticable to submit to the Board’s premises for classification. However, under the amendments to be inserted by item 30, the Board must be given access to a game of this kind.
Item 42 - At the end of Division 2 of Part 2
55. This item will insert a new section 22B into the Principal Act. The new section will allow the Board to classify a publication, film or computer game where it considers that it may be the same as or similar to another publication, film or computer game that has already been classified. This may only occur if the Board is unable to ascertain from its records whether the items are identical and a copy of the original item is not available to it.
56. It is often the case that a publication, film or computer
game is submitted for classification and it appears from the title or from other
indicators that the material is similar to or the same as a previously
classified item. If a copy of the earlier classified item is not available and
the records of the earlier decision are not adequate to effect a satisfactory
comparison the Board is in the difficult position of not knowing whether it can
legitimately proceed to classify the material submitted for classification.
Under the proposed amendment, if the Board subsequently obtains a copy of the
earlier item and finds that it is in fact identical to the later item and the
classification or the consumer advice for the two differ it can revoke the
earlier classification or consumer advice as the case
requires.
Item 43 - After Division 3 of Part
2
Item 44 - After subsection
24(1)
Item 45 - Subsection 24(2)
57. Items 43 and 44 will insert new provisions enabling the Director to give a notice calling in a film or computer game where the Director has reasonable grounds to believe that an unclassified film or unclassified computer game is not an exempt film or exempt computer game, respectively, and where the film is being published in the Australian Capital Territory. Item 45 will make a consequential amendment to subsection 24(2) of the Principal Act.
58. The effect of the call-in power is to require the publisher to submit an application for classification of the film or computer game concerned. Complementary provisions will also need to be included in State and Northern Territory legislation to cover material published in those jurisdictions.
59. As with other call-in powers in the Principal Act, failure to comply with a notice under these provisions is made a strict liability offence. It is, however, a defence to prosecution under the provisions if the defendant proves that he or she did not intend to publish the film or computer game in the ACT or cause, authorise, permit or licence the film or computer game to be published in the ACT. As with the current call-in powers (which followed the recommendations of the Australian Law Reform Commission in its Report on Censorship Procedure) the offence has been made one of strict liability as it is directed at professionals engaged in the dissemination of films and computer games as a business. Further, the offence is a less serious one and is not subject to imprisonment. As a strict liability offence, the defence of honest and reasonable mistake will still be available as well as the defence provided.
60. This provision expressly states that the offence is one of strict liability (in the past this has not been made express in the provision) to take into account the recommendations of the Model Criminal Code Officers Committee in their report General Principles of Criminal Responsibility. That report recommended the mental element for offences, or the intention to create an offence of strict liability, be expressly stated in offence provisions. Further, once these recommendations are implemented, any offence with no stated mental element will be assumed to have a mental element of recklessness. The inclusion of an express statement that the offence is one of strict liability will mean that no further amendment is necessary when the Commonwealth Criminal Code Act 1995 (which implements the above recommendations) applies to the offences in the Bill.
Item 46 - After Division 5 of Part 2
61. This item will insert a new Division 6 in the Principal Act (new sections 28A, 28B and 28C).
62. These provisions will allow a person to apply to the Board for a certificate that an unclassified film or an unclassified computer game is an exempt film or an exempt computer game, respectively. The sections set out the material that must accompany the application and empower the Board to decline to deal with an application unless an adequate copy of the film or computer game is provided. Provision is also made for the Board to require an interactive film or a computer game to be demonstrated before the Board.
63. Applying for a certificate of exemption is not mandatory but if an application is made, and a certificate is granted, then it is proposed that the exempt film or computer game would be excluded from the operation of State and Territory offence provisions including those relating to the selling of an unclassified film or computer game.
64. Proposed new section 28C empowers the Board to revoke a
certificate if it subsequently discovers that the film or computer game contains
material that would cause a film to be classified M or higher or a game to be
classified M(15+) or higher, that was not brought to its attention before the
certificate was granted.
Item 47- Subsection
33(2)
65. Subsection 33(2), amongst other matters, prevents the Board
granting an advertising exemption for an unclassified film where it is of the
opinion that the film would be classified X. This amendment substitutes a
reference to NVE for the reference to X.
Item 48 - At the end of subsection 38(2)
66. This will make a consequential amendment to subsection 38(2) of the Principal Act following insertion of new section 21A by item 37.
Item 49 - At the end of section 39
67. This provision will allow the Director, where the publisher of a publication, film or computer game resides in the Australian Capital Territory, or has an office in the Territory, to require the publisher to submit a copy of a publication, film or computer game for the purposes of reclassifying it.
68. Section 39 of the Principal Act enables the Board of its own motion, or at the request of the Commonwealth Attorney-General (including at the instigation of a participating Minister), to reclassify a publication, film or computer game two years after it has been classified.
69. There is no compulsive power in the Principal Act for the Director to obtain a copy of the relevant publication, film or computer game to enable reclassification to take place. This contrasts with the position with publications and computer games where the Director has the power to give notice to a person to submit material for classification. Failure to abide by the notice constitutes an offence.
70. This issue arose recently in relation to a particular film where, at one stage, there was a possibility that the holder of the only print of the film in Australia would decline to make it available for reclassification purposes. Failure to obtain material for reclassification would defeat the whole purpose of section 39. The proposed amendment will rectify this position.
71. As the Principal Act only applies by its own force in the Australian Capital Territory a similar provision will be needed (as is the case at present for calling in publications or computer games for classification) in complementary State and Northern Territory legislation.
72. Failure to comply with a call-in notice under these provisions is a strict liability offence. It is, however, a defence to a prosecution under the provision if the defendant proves that he or she did not have a copy of the publication, film or computer game.
73. The reasons for creating this offence as a strict
liability offence, and expressly stating that to be the case, are the same as
for the new provisions inserted by items 43 and 44.
Item 50 -
After section 41
74. This item inserts new sections 41A and
41B.
75. New section 41A provides for the reclassification of a film
classified X. The new provision will enable the Board to reclassify an X film
at the request of the Commonwealth Minister, of its own initiative, (in both
instances this may have arisen as a result of a complaint) or upon the
application by a person. If a participating State or Territory Minister asks
the Commonwealth Minister to request the Board to reclassify an X film the
Commonwealth Minister must do so. In making its reclassification decision the
Board will be limited to the then current classification categories which will
include NVE but exclude X.
76. New section 41B provides for a notice of
intention to reclassify an X film (which is also to invite submissions about the
matter) to be given to the former applicant where the Board proposes to
reclassify a film on its own initiative or at the request of the Minister, or
where an application is made for reclassification by a person who was not the
original applicant. The Board is to be required to take into account issues
raised in submissions made to it in response to the notice.
Item 51 - At the end of section 42
77. This item amends section 42 of the Principal Act which lists the persons who may apply to the Classification Review Board for a review of a classification decision.
78. Under that section ‘a person aggrieved’ by a decision may seek a review. While it is difficult to set down precise parameters, it is clear that ‘a person aggrieved’ must at least be a person with an interest in the decision concerned which is greater than an ordinary member of the public.
79. The purpose of the proposed amendment is to expand the range of persons and organisations covered by the term ‘a person aggrieved’. There are precedents in other Commonwealth legislation for this (for example in the Administrative Appeals Tribunal Act 1975) in relation to provisions of similar effect.
80. The proposed provision will allow organisations or persons with a particular prior interest and involvement in the contentious aspects of the subject matter or theme of the material concerned to seek a review. In relation to an organisation, prior involvement would need to be reflected in its objects and activities.
81. In cases where there is some community concern about a decision the proposed provision will introduce a greater degree of flexibility into the review process while maintaining appropriate safeguards. The expanded right of review relates only to classifications that fall within the restricted categories.
Item 52 - After Section 42
1. This item inserts a new section 42A which provides that the Classification Review Board may decline to deal with an application by ‘a person aggrieved if it is satisfied that the application is frivolous or vexatious or not made in good faith.
Item 53 - At the end of Part 5
2. This item inserts a new section 44A in the Principal Act to ensure that the Classification Review Board can obtain a copy of a film, publication or computer game where the applicant for a review is not the original applicant for classification. Under section 42 of the Principal Act review of a classification decision may be sought by the Commonwealth Minister, the original applicant for classification, the publisher of the material or a person aggrieved by the decision.
3. If an application is made by other than the original applicant there is no obligation to supply a copy of the material to enable the review to take place. This could defeat the whole purpose of the review provision.
4. The new section will rectify the position by enabling the Director to call-in a film, publication or computer game from the original applicant or the publisher, as the case requires, for review purposes.
5. As the Principal Act only applies by its own force in the Australian Capital Territory a similar provision will be needed in complementary State and Northern Territory legislation.
6. Failure to comply with a call-in notice under the new section is a strict liability offence. It is, however, a defence to a prosecution under the provision if the defendant proves that he or she did not have a copy of the publication, film or computer game. The reasons for creating this offence as a strict liability offence, and expressly stating that to be the case, are the same as for the new provisions inserted by items 43 and 44.
Item 54 - Section 86
7. This item will make a consequential amendment to section 86 of the Act, which deals with review by the Administrative Appeals Tribunal, following repeal of section 16 of the Principal Act by item 25. An appeal under new section 16 lies to the Classification Review Board.
Item 55 - After subparagraph 91(1)(c)(ii)
8. This item will amend section 91 of the Principal Act to allow the Director to waive, in whole or in part, fees or charges for special interest material having a limited distribution that is a short film from a new or emerging film maker where the Director is of the opinion that it is in the public interest to do so.
Item 56 - After section 97
9. This item will insert a new section 97A in Part 9 of the Act. That Part deals with transitional provisions and repeals. Proposed new section 97A enables the Board to reclassify a publication or film where the publication or film has been classified in response to an enforcement application by the former Board or a censor under the law of one State or Territory only or where, in response to an enforcement application, different classifications were given in respect of different States or Territories.
10. Under the previous censorship legislation scheme classification decisions were made under the individual laws of the respective States and Territories. In some cases the criteria under which classification decisions were made differed. This led, particularly in relation to enforcement applications, to different classifications for different jurisdictions. Further, in some cases enforcement applications resulted in a classification decision for one jurisdiction only. This proposed provision will enable the Classification Board to rectify the situation by reclassifying the material under the Principal Act with one set of criteria and classification categories applying.
Item 57 - Application of
amendments
92. This item provides that the amendments made by
the Schedule do not apply to a publication, film or computer game first
published before the commencement of the Act or a publication, film or computer
game for which an application for classification has been made before that
commencement. An exception applies to the amendments to be made by items 14
(substitution of the NVE classification for the X classification), item 16
(applications for reclassification not required where a reclassification is
undertaken on the Board’s own initiative or at the request of the
Minister), item 33 (substitution of NVE for X in relation to determination of
consumer advice), item 42 (which deals with classification of a publication,
film or computer game that may be the same or similar to a classified item),
item 47 (substitution of NVE for X in the provision preventing the Board from
granting a certificate of exemption for the advertising of unclassified films),
item 49 (which enables the Director to call in a publication, film or computer
game for reclassification), item 50 which provides for the reclassification of a
film classified X), items 51 and 52 which expand the range of persons and
organisations covered by the term ‘a person aggrieved’ in relation
to applications to review a classification decision by the Review Board and
allow the Review Board to decline to deal with such applications in certain
circumstances), item 53 (which enables the Director to call in a publication,
film or computer game for review) and item 56 (which enables the Board to
reclassify certain material, classified in response to an enforcement
application under the former scheme).
Item 58 - Films classified X
before commencement
93. This item provides that a film classified X
before the Amendment Act commences retains that classification unless it is
reclassified under new section 41A (to be inserted by item 50). The large
number of X classified films in circulation means it is not feasible or
appropriate to take away their X classification. Nor is it possible to
redesignate them NVE as many would not comply with the guidelines for that
classification. However, as noted in relation to new section 41A, there is
power to reclassify X-rated films.
Item 59 - Decisions after
commencement
94. This item makes, in effect, transitional
arrangements for applications for classification of X films that are pending
when the amending act commences. Such applications must be dealt with,
including any review of Board decisions, as though the X category had been
abolished.
Schedule 2 - Consequential
amendments
Broadcasting Services Act
1992
Item 1 - Clause 1 of Schedule 2
Item 2 - Paragraph 7(1)(g) of
Part 3 of Schedule 2
Item 3 - Paragraph 9(1)(g) of Part 5 of Schedule
2
Item 4 - Paragraph 10(1)(f) of Part 6 of Schedule 2
Item 5
- Paragraph 10(1)(g) of Part 6 of Schedule 2
Item 6 - Paragraph
11(3)(a) of Part 7 of Schedule 2
Item 7 - Subclause 11(4) of Part 7 of
Schedule 2
95. Items 2 to 4 and 6 and 7 made consequential amendments
to the relevant provisions of the Broadcasting Services Act 1992 to
include a reference to programs classified NVE (in addition to the current
references to programs classified X and RC) as programs that cannot be broadcast
pursuant to the provisions of that Act.
96. Classification decisions are
made by the Board and not the Office of Film and Literature Classification and
item 5, and the other items listed above, make a minor amendment to the relevant
paragraphs to reflect this fact. A definition of ‘Classification
Board’ is inserted by item 1.
Item 8 - Clause 2 of Schedule
5
Item 9 - Clause 6 of Schedule 5
Item 10 - Paragraph 10 (1)
(a) of Schedule 5
Item 11 - Subclause 10 (2) of Schedule
5
97. Items 8, 10 and 11 make consequential amendments to the
provisions of Schedule 5 (Online services) to include a reference to internet
content that has been classified NVE (as well as X) by the Board. As a
consequence, item 9 repeals Clause 6 of Schedule 5 which deals with the
replacement of the X classification under the Classification (Publications,
Films and Computer Games) Act 1995 (‘the Classification
Act’).
Item 12 - At the end of clause 16 of Schedule
5
98. This item inserts new provisions relating to persons who are
taken to be persons aggrieved for the purposes of a review of a classification
decision consequent upon the proposed inclusion of a similar provision in the
Classification Act.
Item 13 - Subclause 21(2) of Schedule
5
Item 14 - Subclause 21(2) of Schedule 5
99. Subclause
21(2) of Schedule 5 states that certain sections of the Classification Act do
not apply to a classification under that schedule. Items 13 and 14 add to that
list new provisions, to be inserted by the amending Act, that are also not
applicable to such decisions.
Item 15 - Paragraph 30(2)(a) of
Schedule 5
100. This item makes a consequential amendment to clause
30(2)(a), which relates to potential prohibited internet content to substitute a
reference to NVE for the current reference to X.