Commonwealth of Australia Explanatory Memoranda

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CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT (INDUSTRY SELF-CLASSIFICATION AND OTHER MEASURES) BILL 2023

                             2022-2023



  THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                 HOUSE OF REPRESENTATIVES




CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES)
  AMENDMENT (INDUSTRY SELF-CLASSIFICATION AND OTHER
                   MEASURES) BILL 2023




       SUPPLEMENTARY EXPLANATORY MEMORANDUM




        Amendments to be moved on behalf of the Government




                      (Circulated by authority of the
       Minister for Communications, the Hon Michelle Rowland MP)

                                                                   1


AMENDMENTS TO THE CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT (INDUSTRY SELF-CLASSIFICATION AND OTHER MEASURES) BILL 2023 GENERAL OUTLINE The Parliamentary Amendments clarify the application of the deeming provisions under section 6HA of the Classification (Publications, Films and Computer Games) Amendment (Industry Self-Classification and Other Measures) Bill 2023 (the Bill) to the Australian Broadcasting Corporation (ABC) and Special Broadcasting Service (SBS). The Bill currently provides that content classified under the relevant provisions in the Broadcasting Services Act 1992 (BSA) will be deemed as also classified under the Classification (Publications, Films and Computer Games) Act 1995 (Classification Act). These deeming provisions will address a regulatory anomaly whereby content broadcast on terrestrial television, such as Channel 9, is able to be classified under the BSA, while the same content provided on a broadcaster's online video on-demand service, such as 9Now, is required to be classified under the Classification Act. This will support a 'classify once' principle where content that has been classified using almost identical criteria, and that has not been modified, does not require classification again for distribution in another format. The Parliamentary Amendments will extend this automatic deeming arrangement to the national broadcasters by making specific reference to the Australian Broadcasting Corporation Act 1983 (ABC Act) and the Special Broadcasting Service Act 1991 (SBS Act). This will ensure that the ABC and SBS are eligible for the deeming provisions in the same way as broadcasters licensed under the BSA, including commercial television broadcasting licensees. The Parliamentary Amendments, and the Bill, are not intended to change the way broadcasters currently classify content under Codes made pursuant to the BSA, ABC Act and SBS Act. FINANCIAL IMPACT Nil. STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS A Statement of Compatibility with Human Rights has been completed in relation to the Parliamentary Amendments to the Bill. The amendments have been assessed as compatible with Australia's human rights obligations. 2


Statement of Compatibility with Human Rights Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 Classification (Publications, Films and Computer Games) Amendment (Industry Self-Classification and Other Measures) Bill 2023 This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. No additional human rights have been identified in relation to these amendments. Human rights implications These Parliamentary Amendments are compatible with human rights as they do not raise any human rights issues. AMENDMENTS TO THE CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT (INDUSTRY SELF-CLASSIFICATION AND OTHER MEASURES) BILL 2023 Classification (Publications, Films and Computer Games) Act 1995 1) This item updates Schedule 1, item 1 of the Bill, inserting 'the ABC Act or the SBS Act' after the BSA. This amends the outline at section 3A to reflect that films classified under provisions in any of these three Acts are taken to be classified by the Board in certain circumstances. 2) This item updates Schedule 1, item 3 of the Bill, inserting 'the ABC Act or the SBS Act' after the BSA. This amends the outline at section 3A to reflect that films classified under provisions in any of these three Acts that are taken to be classified by the Board can be re-classified in certain circumstances. 3) This item updates the heading at Schedule 2 of Part 4 of the Bill, to reflect that deeming provisions apply to films classified under the BSA, the ABC Act or the SBS Act. 4) This item updates Schedule 2, item 8 of the Bill, amending the note at the end of the definition of 'classified' in section 5 of the Classification Act to add 'the ABC Act or the SBS Act' after the BSA. 5) This item updates Schedule 2, item 10 of the Bill, amending the outline of section 6AA to add 'the ABC Act or the SBS Act' after the BSA. 6) This item updates Schedule 2, item 11 of the Bill, amending the heading of Division 3, from 'Films classified under the Broadcasting Services Act 1992' to 'Films classified under certain other Acts'. 3


7) This item updates Schedule 2, item 11 of the Bill, amending the heading at section 6HA to read 'Certain films classified under certain other Acts are taken to be classified under this Act'. 8) This item updates Schedule 2, item 11 of the Bill, amending paragraph 6HA(1)(a) to add 'the ABC Act or the SBS Act' after the BSA. This paragraph provides that a film is taken to be classified under the Classification Act if the film has been classified by a broadcaster at R 18+ or a lower classification under the BSA, the ABC Act or the SBS Act. 9) This item updates Schedule 2, item 11 of the Bill, amending paragraph 6HA(1)(c) to add 'the ABC Act or the SBS Act' after the BSA. This paragraph provides that a film is taken to be classified under the Classification Act if the film has been classified under the BSA, ABC Act or SBS Act and a person, known as the post-classification publisher, proposes to publish the film. For the avoidance of doubt, 'proposes to publish' refers to an intention to publish film content on any platform, for example broadcast, video on-demand or physical formats such as DVD. 10) This item updates Schedule 2, item 11 of the Bill, amending subsection 6HA(2), to omit 'the BSA' and replace it with 'the BSA, the ABC Act or the SBS Act.' This subsection provides that deeming will apply to the most recent classification of a film under the BSA, ABC Act or SBS Act, that occurred before the film was published by the post-classification publisher. 11) This item updates Schedule 2, item 11 of the Bill, inserting a new paragraph 6HA(3)(aa) to clarify that the deeming provision takes effect for content published by the ABC and the SBS at the time they propose to publish, which is the same as the conditions at paragraph 6HA(3)(a) for broadcasters licensed under the BSA. The effect of this is to enable the ABC or SBS to legally carry over a film classification made under the ABC Act and SBS Act to a different format, with no notification requirement or administrative burden. For the avoidance of doubt, it is intended that for post-classification publishers that fall under paragraphs 6HA(3)(a) or 6HA(3)(aa), deeming will apply to a film that has been classified regardless of the format of publishing, for example whether the film is first transmitted via broadcast or on-demand service. 12) This item updates Schedule 2, item 11 of the Bill, amending paragraph 6HA(3)(b) to omit 'if the post-classification publisher is not such an entity' and replace with 'otherwise.' This is to reflect that this paragraph applies to any entity who intends to publish content using the deeming provision, other than the ABC, the SBS or those licensed to provide broadcasting services under the BSA. 13) This item updates Schedule 2, item 11 of the Bill, amending paragraph 6HA(5)(b) to add 'the ABC Act or the SBS Act' after the BSA. This paragraph reflects that a film is not able to be deemed under subsection 6HA(1) if the content is a modified version of a film classified under the BSA, ABC Act or SBS Act. 4


14) This item updates Schedule 2, item 13 of the Bill, to add 'the ABC Act or the SBS Act' after the BSA, in relation to the commencement of amendments under this part of the Classification Act. 5


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