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2004
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT BILL (No 2) 2004
EXPLANATORY MEMORANDUM
(Circulated by authority of the Hon Philip Ruddock MP, Attorney-General)
CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT BILL (No 2) 2004
The Classification (Publications, Films and Computer Games) Amendment Bill (No 2) 2004 (‘the Bill’) will make minor amendments to the Classification (Publications, Films and Computer Games) Act 1995 (‘the Classification Act’).
Under the national classification scheme, the Classification Board (the Board) is responsible for the classification, on application, of films, computer games and certain publications. The Classification Review Board (the Review Board) makes fresh classification decisions in response to an application for review of a decision of the Board.
The purpose of the Bill is to remove any doubt as to the validity of classification decisions made by the Board in response to deficient or defective applications for classification by law enforcement authorities before and after commencement, or, in the case of Review Board applications, by persons entitled to make a review application under section 42.
The Bill, which gives effect to recent advice from the Australian Government Solicitor, is designed to ensure that prosecutions for child pornography and related offences do not fail for technical reasons related to applications for classification.
The Bill would ensure that a classification decision would not be rendered invalid if, for example, an application referred to the wrong section number of the Classification Act or did not meet all technical requirements.
The Bill also removes any doubt as to the validity of decisions made or any later action taken by the Board, the Review Board or the Director of the Classification Board (the Director) in respect of the decisions that are validated by the amendments.
The amendments will ensure that prosecutions, including prosecutions for child pornography related offences under Commonwealth, State or Territory legislation, do not fail on technical grounds related to applications for classification of material.
The provisions do not operate to validate classification decisions that might be defective for reasons other than technical deficiencies related to the application, nor do they prevent any challenges to a Board or Review Board decision based on some defect in the decision making process (as opposed to the form of the application).
The classification decision making process will remain unchanged.
FINANCIAL IMPACT STATEMENT
The Bill will not result in any change to the net asset position for the Commonwealth. In particular, the amendments will not result in a loss of revenue or any reduction in the cost of operating the Board, Review Board and the Office of Film and Literature Classification (OFLC). Hence, no changes in operating expenses will result.
CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT BILL (No 2) 2004
SUMMARY OF AMENDMENTS
The Bill contains a number of technical amendments to the Classification (Publications, Films and Computer Games) Act 1995 (‘the Classification Act’). A brief description of the main changes is set out below along with 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 Bill will have the following effects.
• Validate Board decisions made, both before and after the commencement of the amendments, on the basis of deficient or defective applications for classification by Commonwealth, State and Territory law enforcement agencies (Item 1).
• Validate Review Board decisions made, both before and after the commencement of the amendments, on the basis of deficient or defective applications for review of a Board decision, where the relevant Board decision resulted from an application by a Commonwealth, State and Territory law enforcement agency (Item 2).
• Validate any later decisions or actions taken by the Board, the Review Board or the Director under the Classification Act on the basis of the original Board decision, or, as the case may be, Review Board decision (Items 1 and 2).
NOTES ON CLAUSES
1. Clause 1 is a formal provision specifying the short title of the Bill.
Clause 2 - Commencement
2. The amendments will commence on the day this Act receives Royal Assent.
Clause 3 - Schedule(s)
3. This clause provides that the Act that is specified in the Schedule to this Act (ie the Classification Act) is amended as set out in that Schedule. In addition, 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 – Addition of section 22C
This item adds a new section 22C into Division 2 Part 2 of the Classification Act.
Subsection (1) of section 22C validates decisions made by the Board on an application made by a law enforcement agency where the application did not satisfy the requirements of the Act for the making of the application.
This subsection provides that the classification decision, made in response to such an application, is always as valid as it would have been had the application met the requirements of the Act specified in any relevant sections of the Act.
Paragraph 22C(1)(b) provides that the new section applies to applications made by law enforcement agencies. The term ‘law enforcement agency’ is not defined, but in practice includes without limitation, the Commonwealth, a State or a Territory or an authority or agency of the Commonwealth, a State or a Territory enforcing criminal laws such as police; entities with responsibility for classification enforcement matters; and entities which may refer material for classification purposes related to law enforcement, such as the Australian Broadcasting Authority.
The new section operates both retrospectively and prospectively. The new section validates decisions made by the Board in respect of applications that were made by law enforcement agencies before the commencement of section 22A of the Classification Act (that is 4 September 2000), and all applications made by law enforcement agencies since the commencement of section 22A.
The amendments contained in the Bill will apply to classification decisions made before the commencement of these amendments, and are in that sense retrospective in their operation. However, this retrospectivity is appropriate and justified and will not lead to any substantive injustice. The amendments will apply only to remedy technical errors that might be made in the application process. Such technical errors would cast no doubt whatsoever on the correctness of the classification decision, which rested on the examination of the relevant product not the formalities of the application.
For example, section 22A of the Classification Act sets out the requirements for an ‘enforcement application’ for classification decision. Subsection 22A(1) requires that the application be:
• in writing; and
• made in a form approved by the Director in writing; and
• signed by or on behalf of the applicant; and
• accompanied by a copy of the publication, film or computer game.
Subsection 22A(2) requires payment of a prescribed fee.
In practice, a copy of the publication, film or computer game as required by subsection 22A(1) must have been provided for classification to occur. The other requirements reflect good administrative practice, to facilitate the smooth operation of arrangements with agencies, and will continue to be administered by the Board and the OFLC. However, they have no bearing on the classification decision and some default in compliance should not cast any doubt on the validity and effectiveness of that classification. There is no legitimate reason why a person should be able to escape prosecution, conviction and punishment for a serious child pornography offence in those circumstances, including in circumstances where the classification decision occurred in the past and the amendment applies retrospectively.
This section also applies to validate any classification decisions on applications from law enforcement agencies received after the commencement of this Act. The prospective validation is appropriate and justified and will not lead to any substantive injustice. The amendment is intended to validate defective applications as a result of the failure by law enforcement agencies to, for example, fill in the correct forms or to provide all the information required under the Act. Such technical errors would cast no doubt whatsoever on the correctness of the classification decision, which rested on the examination of the relevant product not the formalities of the application.
The amendments will not prevent a challenge to any classification decision on any other grounds, for example a challenge based on some defect in the decision making process such as improper application of the code or guidelines. That is, the provision only protects against a defect in an application and does not extend any protection to a defect in the later steps in arriving at a classification decision.
Subsection 2 of new section 22C validates any later decisions or actions taken by the Board, the Review Board or the Director under the Act on the basis of the original Board decision.
Item 2 – Addition of section 44B
This item adds a new section 44C into Part 5 of the Classification Act.
Subsection 44B(1) validates decisions made by the Review Board on applications for review of a Board decision, where the Board decision was in respect of an application made by a law enforcement agency, and the application for review did not satisfy the requirements of the Classification Act for the making of the review application.
The new section provides that the Review Board decision, made in response to an application for review that did not meet all of the requirements of the Act, is always as valid as it would have been had the application for review met the requirements of the Classification Act that are specified in section 43.
The new section applies to applications made by any person who is entitled, under section 42 of the Classification Act, to make an application for review of a decision, not just to applications for review made by law enforcement agencies. The amendments do not effect the Review Board’s existing power to reject applications on the basis that the application for review does not meet the application criteria set out in section 43.
This item does apply more broadly than item 1, to applications made by any person entitled under section 42 – not just an application for review from a law enforcement agency. This broad application of item 2 is necessary so that, regardless of who made the application for review, the Review Board decision, arising out of a Board decision on an application originally made by a law enforcement agency, is valid and able to be used by the law enforcement agency.
The new section operates both retrospectively and prospectively. The new section validates decisions made by the Review Board in respect of applications for review that were made both before and after the commencement of this item. The policy rationale for the retrospective and prospective nature of the amendments is the same as that under item 1. As noted in respect of item 1, the requirements of section 42 of the Classification Act reflect good administrative practice, to facilitate the smooth operation of arrangements with agencies, and will continue to be administered by the Review Board and the OFLC. However, they have no bearing on the classification decision and some default in compliance should not cast any doubt on the validity and effectiveness of that classification. There is no legitimate reason why a person should be able to escape prosecution, conviction and punishment for a serious child pornography offence in those circumstances, including in circumstances where the classification decision occurred in the past and the amendment applies retrospectively.
As with item 1, the amendments are directed at defective applications and will not prevent a challenge to any classification decision on any other grounds, for example a challenge based on some defect in the decision making process such as improper application of the code or guidelines. That is, the provision only protects against a defect in an application and does not extend any protection to a defect in the later steps in arriving at a classification decision.
Subsection 2 of new section 44B validates any later decisions or actions taken by the Board, the Review Board or the Director under the Act on the basis of the Review Board decision.