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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES)
AMENDMENT (INDUSTRY SELF-CLASSIFICATION AND OTHER
MEASURES) BILL 2023
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the
Minister for Communications, the Hon Michelle Rowland MP).
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY
THE HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED
CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES)
AMENDMENT (INDUSTRY SELF-CLASSIFICATION AND OTHER MEASURES)
BILL 2023
GENERAL OUTLINE
This Bill amends the Classification (Publications, Films and Computer Games) Act 1995
(Classification Act) to improve the capacity of the National Classification Scheme (NCS) to
efficiently manage the rapid growth in the volume of classifiable content, particularly online
content, reduce costs and promote industry compliance, and increase access to cultural
content in public libraries and approved cultural institutions. The Bill also makes a number of
minor amendments to improve the clarity of certain provisions, address legislative anomalies
and enhance the administrative efficiency of the NCS.
Industry self-classification
The Bill expands options for industry to self-classify film and computer game content to
promote industry compliance and improve efficiency in classifying large volumes of content
across platforms, especially online. It establishes a new accreditation scheme to enable
content providers to use classifiers (either in-house or third party) who have been trained and
accredited by Government to self-classify content. This will increase the options available for
industry to classify content, operating in addition to the existing two approved methods for
classification: submissions to the Classification Board and the use of Minister-approved
classification tools.
To support the expansion of industry self-classification arrangements, the Bill introduces a
number of safeguards, including eligibility criteria to ensure that persons accredited to
classify content are fit and proper, and provisions for accreditation to be suspended or
revoked for failure to appropriately classify content. Decisions to classify content as RC
(Refused Classification), X18+ (Restricted) or for law enforcement purposes will continue to
only be made by the Classification Board.
Classification Board powers
The Bill refines and extends the powers of the Classification Board to quality assure industry
self-classification decisions to ensure the consistency and reliability of classification
information. The Classification Board is currently empowered to conduct checks and, where
necessary, revoke classification decisions made by Minister-approved classification tools
where the Board would have made a different classification decision. These powers will be
extended to decisions made by accredited self-classifiers.
In addition, the Classification Board's powers to revoke industry self-classification decisions
on the basis of differences in consumer advice will be clarified. This will improve the
efficiency of the NCS by reducing unnecessary revocations for minor subjective differences
that do not materially affect the accuracy and usefulness of consumer advices. The Board will
also be required to have regard to any technical limitations of tools as allowed for in
agreements between the Commonwealth and tool operators.
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To support industry self-classification, the Classification Board may also publish a list of
consumer advices and guidance on their appropriate use. This will improve the consistency of
classification information provided to consumers.
Exemptions for low-risk cultural content
The Bill expands classification exemptions to include films in languages other than English
(LOTE) distributed through public libraries. This will reduce the regulatory burden for
distributors and increase community access to content, especially for culturally and
linguistically diverse communities. As a risk-mitigation measure, only content that would be
classified either G (General) or PG (Parental Guidance) will be granted this exemption.
Existing conditional cultural exemptions will also be broadened for approved cultural
institutions to enable publication, film or computer game content displayed as part of routine
exhibitions to not require classification. At present, this exemption only applies to designated
events at approved cultural institutions. This exemption will lower the administrative burden
for approved cultural institutions where content is considered low risk.
'Classify once' principle
The Bill also enables certain content that has already been classified under the Broadcasting
Services Act 1992 (BSA), Australian Broadcasting Corporation Act 1983 (ABC Act) or the
Special Broadcasting Service Act 1991 (SBS Act) to be deemed as classified under the
Classification Act for distribution on other platforms, where no substantial changes have been
made to the classifiable content. This will support a 'classify once' principle where content
does not need to be classified again for distribution in a different format.
This change is considered appropriate as the deemed content will have been already classified
by free to air and subscription television broadcasters using criteria based on the NCS
Guidelines for the Classification of Films 2012, under long-standing arrangements overseen
by the Australian Communications and Media Authority (ACMA). The Bill is not intended to
change the way broadcasters currently classify content under Codes made pursuant to the
BSA, ABC Act and SBS Act.
These amendments form part of the first tranche of classification reforms announced by the
Government on 29 March 2023, and have been informed by recommendations from the
Australian Law Reform Commission's 2012 report on Classification-Content Regulation and
Convergent Media and the 2020 Review of Australian Classification Regulation. The
amendments will have no material impact on existing cooperative arrangements between the
Commonwealth, states and territories under the NCS.
FINANCIAL IMPACT STATEMENT
Implementation costs will be met from within existing resources. Cost recovery arrangements
for industry self-classification may be considered in a future Budget process.
STATEMENT OF COMPATABILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the
amendments in this Bill. The amendments have been assessed as compatible with Australia's
human rights obligations.
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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.
Overview of the Bill
The Classification (Publications, Films and Computer Games) Amendment (Industry Self-
Classification and Other Measures) Bill 2023 amends the Classification (Publications, Films
and Computer Games) Act 1995 (the Classification Act) to improve the capacity of the
National Classification Scheme (NCS) to efficiently manage the rapid growth in the volume
of classifiable content, particularly online content, reduce costs and promote industry
compliance, and increase access to cultural content in public libraries and approved cultural
institutions.
The NCS provides for the classification of films, computer games and certain publications. It
plays an important role as a trusted and reliable source of information for all Australians
about what they - or those in their care - read, see, hear or play.
The NCS was established in 1995 under cooperative arrangements between the
Commonwealth, states and territories and has remained largely unchanged since this time.
This has meant that it has not kept pace with the way Australians access media content,
particularly the rapid growth in online content. Several reviews have found that there are
aspects of the NCS that are no longer fit-for-purpose, including the Australian Law Reform
Commission's 2012 report on Classification-Content Regulation and Convergent Media and
the 2020 Review of Classification Regulations by Mr Neville Stevens AO, which the
Government released on 29 March 2023.
The Bill addresses a number of issues raised in these reviews by:
(a) expanding options for industry to self-classify film and computer game content, to
promote industry compliance and improve efficiency in classifying large volumes
of content across platforms, especially online:
i. content providers will be able to classify content using industry
classifiers who have been trained and accredited by the Government
(b) refining and extending the Classification Board's powers to quality assure
industry self-classification decisions, including revocation of those decisions as
necessary:
i. the Classification Board is currently empowered to conduct checks and
where necessary revoke classification decisions made by approved
tools. This power will be carried over to decisions of accredited
classifiers.
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ii. the Classification Board's powers to revoke industry self-classification
decisions on the basis of differences in consumer advice will be
clarified to improve the efficiency of the NCS by reducing unnecessary
revocations for minor subjective differences that do not materially
affect the accuracy and usefulness of consumer advices, and
iii. to support industry self-classification, the Classification Board will be
able to publish a list of consumer advice terms and guidance on use of
these terms. This will provide for consistency across classification
decisions and improve the quality of classification information
provided to consumers
(c) extending exemptions from classification to increase access to low-risk cultural
content, including:
i. films in languages other than English distributed from public libraries that
would be classified G (General - suitable for everyone) or PG (Parental
Guidance - may require the guidance of parents, teachers or guardians),
and
ii. broadening exemptions under the Conditional Cultural Exemptions rules
for routine exhibitions at approved cultural institutions, and
(d) deeming certain content that has already been classified under the Broadcasting
Services Act 1992 (BSA), Australian Broadcasting Corporation Act 1983 (ABC
Act) or the Special Broadcasting Service Act 1991 (SBS Act) to be classified
under the Classification Act.
Human Rights Implications
The Bill engages with the following rights:
▪ the promotion of the best interests of the child under Article 3 of the Convention on
the Rights of the Child (CRC)
▪ the requirement for States to render appropriate assistance to parents or legal
guardians in the performance of their child rearing responsibilities in Article 18(2) of
the CRC
▪ the need for States to protect children from all forms of sexual exploitation and sexual
abuse, including pornographic performances and materials under Article 34(c) of the
CRC
▪ freedom of expression in Article 19(2) of the International Covenant on Civil and
Political Rights (ICCPR)
▪ the right of everyone to take part in cultural life in Article 15(1)(a) of the
International Covenant on Economic, Social and Cultural Rights (ICESCR)
▪ the right to enjoy and benefit from culture in Article 27 of the ICCPR, and
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▪ the right of the child to access information and material from a diversity of national
and international sources in Article 17 of the CRC.
Specific articles and the manner in which the Bill engages them are presented below.
The promotion of the best interests of the child under Article 3 of the CRC
The requirement for States to render appropriate assistance to parents or legal guardians in
the performance of their child rearing responsibilities in Article 18(2) of the CRC
The need for States to protect children from all forms of sexual exploitation and sexual abuse,
including pornographic performances and materials under Article 34(c) of the CRC
All of the above articles are directly or indirectly supported through this Bill.
Taken together, the majority of the amendments have the effect of making it easier for
publishers of classifiable content under the Classification Act, particularly films and
computer games, to comply with the requirement under the NCS to ensure content is
classified before it is made available to the Australian public. The NCS has been established
to inform the choices of consumers about what they, and those in their care, read, hear, see
and play. It is founded on the principles of protecting children from material that may harm
or disturb them while preserving the right of adults to access media content of their choice
with limited exception.
The introduction of accredited classifiers will help to promote the provision of consistent
classification information to consumers and is a way in which the Government can realise its
obligations under the CRC, by assisting parents and legal guardians to make informed
decisions regarding appropriate entertainment material for their children.
The amendment to refine and extend the Board's powers to quality assure industry self-
classification decisions, including revocation of those decisions, also supports these
provisions by discouraging inaccurate classification decisions that may mislead consumers,
including children, in their media choices. The refined, clearer revocation criteria and added
provision for the Board to issue a list of consumer advice terms and guidance for classifiers
will more effectively facilitate the provision of consistent information which will also support
the articles above.
Freedom of expression in Article 19(2) of the ICCPR
Expanding options for industry to self-classify content through the introduction of
accreditation, broadening exemptions from classification and deeming certain classifications
under the BSA, ABC Act or SBS Act to be classified under the Classification Act promotes
the rights to freedom of expression in Article 19(2) of the ICCPR and Article 13 of the CRC
because the regulatory burden associated with having content classified is reduced.
Alleviating this burden promotes the provision of a broader array of media content to be
published and to be made available to Australians.
Expanding exempt film categories to include certain films in languages other than English
distributed through public libraries also promotes freedom of expression as it supports the
freedom of expression of the producers of the films that would otherwise not be able to be
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made available to communities through public libraries due to the prohibitive cost of having
them classified.
The right of everyone to take part in cultural life in Article 15(1)(a) of ICESCR
The right to enjoy and benefit from culture in Article 27 of the ICCPR
The right of the child to access information and material from a diversity of national and
international sources in Article 17 of the CRC
The above articles will be supported in particular by expanding exempt film categories to
include certain films in languages other than English distributed through public libraries. This
amendment will ensure that consumers have greater access to mild content that has been self-
assessed as exempt, and it is anticipated that expanding the film exemptions categories will
foster the growth of available cultural content. The exemption will only apply to content that
would be classified G or PG, which enables children as well as adults to benefit from broader
access to cultural content under this exemption.
Article 15(1)(a) is also supported by expanding exemptions under Conditional Cultural
Exemptions to routine or permanent exhibitions at approved cultural institutions. This
amendment reduces the regulatory burden on cultural institutions which will have benefits on
the ability of these institutions to uphold the right of everyone to take part in cultural life.
Expanding industry self-classification will also support the right of everyone to take part in
cultural life, in that it will provide a more cost-effective means for a broader range of content
providers to meet classification obligations and legally make their content available to
Australians.
Finally, new deeming provisions relating to certain films classified under the BSA, ABC Act
or SBS Act will enable publishers of content to carry over broadcasting classifications,
reducing the regulatory burden associated with re-classifying such content and making it
easier for a wider variety of content to be made available to Australians, including
international content.
Existing limitations on the right to freedom of expression in Article 19(2) of the ICCPR
These limitations, designed to protect the rights and reputations of others and to protect
public morals generally, will be retained through conditions that will apply to many of the
amendments in the Bill. These include: the limitation of exemption from classification for
films in languages other than English to content that would be classified G or PG; the ability
for publishers to re-classify content that has already been classified for broadcast under the
BSA, ABC Act or SBS Act if they consider that the most recent classification for broadcast
may not align with the National Classification Code or the classification guidelines; the need
for content likely to be classified X 18+ or RC (Refused Classification) to be referred for
classification by the Board instead of being classified by accredited classifiers (who will only
be able to classify content up to R 18+).
Under amendments to Conditional Cultural Exemptions, necessary prohibitions and
requirements to display warnings or information for the public exhibition of certain content
will be retained to ensure that public morals are protected. For example, festivals and
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cultural institutions will be required to provide patrons with warnings about the content that
they are about to see and prohibitions on the screening or display of content likely to be
X 18+ or RC will be retained.
Encouraging the classification of content by expanding industry self-classification to include
accredited classifiers and extending Board quality assurance powers to decisions by
accredited classifiers, will also place a necessary limit on the right to freedom of expression.
It upholds the role of the NCS in preserving this freedom as long as content is appropriately
classified, and certain content is able to be restricted or Refused Classification in order to
protect children from unsuitable content and consumers more broadly from objectionable,
abhorrent or illegal content. Increasing the volume of content that is classified in accordance
with the NCS better protects consumers from exposure to unsolicited material that they may
find offensive and contributes to the protection of public morals.
Conclusion
The Bill is compatible with human rights because it advances the protection of human rights.
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Terms and abbreviations
For ease of description, this Explanatory Memorandum uses the following terms or
abbreviations:
▪ 'ABC Act' means the Australian Broadcasting Corporation Act 1983
▪ 'Board' means the Classification Board
▪ 'BSA' means the Broadcasting Services Act 1992
▪ 'NCS' means National Classification Scheme
▪ 'Director' means the Director of the Classification Board;
▪ 'Secretary' means Secretary of the Department of Infrastructure, Regional
Development, Transport, Communications and the Arts
▪ 'Classification Act' means the Classification (Publications, Films and Computer
Games) Act 1995
▪ 'LIA' means the Legislative Instruments Act 2003
▪ 'G' means the classification rating of General as outlined in section 7 of the
Classification Act
▪ 'PG' means the classification rating of Parental Guidance as outlined in section 7 of
the Classification Act
▪ 'M' means the classification rating of Mature as outlined in section 7 of the
Classification Act
▪ 'MA 15+' means the classification rating of Mature Accompanied as outlined in
section 7 of the Classification Act
▪ 'R 18+' means the classification rating of Restricted to adult aged 18 and over as
outlined in section 7 of the Classification Act
▪ 'RC' means Refused Classification as outlined in section 7 of the Classification Act,
▪ 'SBS Act' means the Special Broadcasting Service Act 1991, and
▪ 'SVOD' means subscription video-on-demand service.
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NOTES ON CLAUSES
Clause 1 - Short title
Clause 1 provides that when the Bill is enacted, it may be cited as the Classification
(Publications, Films and Computer Games) Amendment (Industry Self-Classification and
Other Measures) Act 2023 (the Act).
Clause 2 - Commencement
Item 1 of the table in subclause 2(1) provides for the Bill to commence on a day or days to be
fixed by Proclamation. However, if the provisions do not commence within the period of
6 months beginning on the day this Act receives the Royal Assent, they commence on the day
after the end of that period.
Clause 3 - Schedule(s)
Clause 3 provides that legislation specified in a Schedule to the Act is amended or repealed as
set out in the applicable items in the Schedule concerned, and that any other item in a
schedule to the Act has effect according to its terms.
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SCHEDULE 1-- Classification by accredited persons
Part 1 - Main amendments
Classification (Publications, Films and Computer Games) Act 1995
Items 1 to 3 update the simplified outline of the Act at section 3A including inserting the
statement that films classified under the BSA, ABC Act or SBS Act are taken to be classified
by the Board in some circumstances, that a film or computer game may also be classified by
an accredited person and that films classified under the BSA, ABC Act or SBS Act that are
taken to be classified by the Board can be reclassified in some circumstances. The outline is
included to assist readers to understand substantive provisions of the Bill, and is not intended
to be comprehensive. Readers should rely on substantive provisions.
Item 4 updates the definition of decision to clarify the requirement of the Board to make a
classification decision under subsections 22CH(4) and 22L(3) following the revocation of a
classification decision made by an approved classification tool or accredited person.
Items 5 and 6 update the simplified outline for Part 2 of the Act (section 6J) to assist readers
to understand this part of the Bill including that a film or computer game may also be
classified by an accredited person and that consumer advice must be determined for each
classified film or computer game, and certain publications. It also removes reference to
classification by the Board to reflect the wider application of this provision to approved
classification tools and accredited persons.
This outline is not intended to be comprehensive. It is intended that readers should rely on the
substantive provisions.
Items 7 to 29 deal with the restructure of Part 2 of the Act. This restructure has been
undertaken to provide the reader with additional clarity on the application of various
classification provisions and avoid repetition of sections applying to more than one
classification mechanism (for example, Classification by the Board, Classification by
accredited classifiers, Classification by approved classification tools etc).
Item 7 repeals the heading at Division 2 of Part 2 'Classification by the Board'. Division 1
now deals with sections under Part 2 of the Act that apply to all classification decisions and a
new Division 2 is inserted as outlined at Item 7 to cover Classification by the Board.
Item 8 repeals Section 10 as part of the restructuring of Part 2 of the Act, for internal
consistency and brevity as the intent of this section is covered through the operation of other
provisions of the Act.
Item 9 removes reference to 'the Board' in subsection 12(1) to reflect that the guidelines will
assist all classifiers classifying content under the Act.
Item 10 makes the following insertions before section 13 of the Act:
• subclauses 12B, 12C and 12D. These new subclauses adapt sections 14A, 18 and 22
respectively, which have been relocated under Division 1 to be with the sections of
the Act that apply to all classification decisions. Subclause 12C omits reference to the
Board that was in section 18 so that it applies to all classification decisions and
subclause 12D(3) inserts 'by the Board' to reflect that only the Board can classify
material for enforcement purposes.
11
• the heading 'Division 2 - Classification by the Board' and a new subheading
'Subdivision A - Classification on application to the Board'. This Subdivision
establishes the process for applications for classification by the Board for
publications, films and computer games, and
• a new section 12E to clarify that a person may apply to the Board for the classification
of a publication, film or a computer game. It also inserts a reference to the Australian
Capital Territory, noting that the Act relies on the territories power for constitutional
support.
Item 11 repeals section 14A of the Act, which has been relocated as outlined at Item 10.
Item 12 repeals subsections 17(5) and (6) relating to computer game assessors, to remove
them from Subdivision A as they do not relate to classification by the Board.
Item 13 inserts a new subheading 'Subdivision B - Authorised assessors of computer games'
and a new section 17AA to relocate subsections 17(5) and (6) outlined at Item 12. This
restructure co-locates sections of the Act that relate to authorised assessors of computer
games.
Item 14 clarifies that Note 1 under subsections 17B(1) now applies to subsection 17AA(2)
(instead of subsection 17(6)) as a result of the restructuring outlined at Items 12 and 13.
Item 15 repeals section 18 of the Act, which has been relocated as outlined at Item 10.
Item 16 inserts a new subheading 'Subdivision C - Consumer advice and other matters'
before section 19 of the Act to denote that the following sections under Part 2 relate to the
issuing of consumer advice by the Board or other matters which are specific to the Board.
Item 17 inserts a new subheading 'Division 2A - Modified films and computer games' after
section 20 of the Act. This Division establishes the process of classification and
declassification of modified films and computer games. The sections remain largely
unchanged; however, the structure clarifies that these sections of the Act apply to accredited
classifiers as well as the Board.
Item 18 removes reference to 'section 22' in paragraphs 20A(2)(a) and 21(2)(a) of the Act
and replaces the reference with 'subclause 12D' to reflect the relocation of section 22, as
outlined at Item 10.
Item 19 inserts a new subheading 'Division 2B - Revocation by the Board of classifications
involving assessments of additional content or authorised assessors' before section 21A of the
Act. This Division contains sections of the Act that relate to revocation by the Board, for
clarity.
Item 20 provides additional clarification on that the revocation powers under section 21A of
the Act only apply to interactive films or computer games classified by the Board following
an application (as established under sections 14 and 17 respectively).
Item 21 repeals section 22 of the Act, which has been relocated as outlined at Item 10.
Item 22 inserts a new subheading 'Division 2C - Enforcement applications for classification
by the Board' to denote that the following sections of the Act apply to classification decisions
by the Board for law enforcement purposes.
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Item 23 establishes under section 22A(1) that only the Board can receive applications and
make classification decisions for law enforcement purposes.
Item 24 inserts a new subheading 'Division 2D - Validation of Board decisions' to denote
that the following sections apply to the validation of classifications decisions by the Board.
Item 25 repeals the heading at Division 2AA of Part 2 and replaces it with a new subheading
'Division 2E - Classification by approved classification tools' to denote that the following
subdivisions of the Act cover classification decisions and other matters relating to approved
classification tools.
Item 26 updates subsection 22CF(2)(a) to clarify that Divisions 2,2B, 2C and 2D of Part 2 do
not apply in relation to classification tool decisions. This change is a result of the restructure
of Part 2 of the Act.
Item 27 repeals subsection 22CH(6) for internal consistency and brevity, as a result of
amendment to section 22A(1) (outlined at Item 23).
Item 28 repeals the heading at Division 2A of Part 2 and replaces it with a new subheading
'Division 2F - Additional content assessors' to denote that the following sections of the Act
establishes arrangements for additional content assessors.
Item 29 updates subsection 22D(2)(a) of the Act to specify that a person is not eligible to be
an authorised assessor of additional content under the Act if that person is currently banned,
via a barring notice, from assessing certain computer games (section 17B), as an applicant for
classification of computer games using authorised assessors (section 17C), assessing certain
films (section 22F), as an applicant under a content assessor scheme (section 22H), or from
making accredited self-classification decisions (section 22Q).
Item 30 inserts a new heading after section 22J of the Act 'Division 2G - Classification by
accredited person'. This is a new division which provides for a person to become accredited
to classify films and computer games under the Act. This Division does not apply to the
classification of publications.
Subdivision A - Classification
A new 'Subdivision A - Classification' establishes:
• At new section 22K, that classification decisions in relation to film and computer
games content may be made by an accredited classifier, on request of a publisher or
proposed publisher of the content. A person who is an accredited classifiers is an
individual and does not include a body politic or corporate entity. Decisions made by
accredited classifiers will be taken as decisions in their own right, and take effect
when they are uploaded to the National Classification Database, an existing
centralised public record. This is different to decisions by classification tools, which
are considered as decisions of the Board under the Act (refer to section 22CF(1)).
Classification decisions by accredited classifiers must also include consumer advice
information to provide additional information to consumers on the nature of the
classified content. This is consistent with requirements relating to classification by the
Board under section 20 and approved classification tools under section 22CA(5)(b).
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As a risk mitigation measure, accredited classifiers may not classify content that
would likely be classified RC (Refused Classification) or X 18+. It is intended that
powers to classify this level of content remain vested with the Board, and any content
that is likely to require classification at this rating is referred to the Board for
consideration.
• At new section 22L, the circumstances and criteria under which the Board may revoke
decisions by accredited classifiers are provided. The revocation process can be
initiated by the Board, Minister or Secretary, as well as by applications by persons
provided for in a separate instrument to be issued by the Secretary and accompanied
by a prescribed fee, in order to prevent capricious or vexatious applications.
The provision for making regulations in relation to the time period for revocation and
the class of persons who may apply to have a decision revoked is also consistent with
existing provisions in the Act for classification tools (at section 22CH(8)). To
minimise the use of delegations in the Act, the power for making these regulations has
been vested in the Secretary, instead of the Minister, as they are administrative in
nature.
A decision can only be revoked if the Board would have given the material a different
classification rating, the consumer advice provided for relevant material is
'misleading, incorrect or grossly inadequate' or uses a term that is not included in the
Board's published list of consumer advices that was in force at the time the consumer
advice was determined (under section 12A of the Act). This is consistent with the
criteria for revocation of decisions by approved classification tools.
However, as decisions by accredited classifiers are considered to be decisions in their
own right under the Act, accredited classifiers will be accorded a right of response
where the Board is considering revoking a classification decision. The proposed time
period for this right of response is 7 days to minimise the length of time that
incorrectly classified content that may be potentially harmful to consumers is in the
public domain.
Consistent with revocation of decisions by approved tools, the Board must classify the
film or computer game following revocation and publish its decision on the National
Classification Database.
Subdivision B - Accreditation
A new 'Subdivision B - Accreditation' establishes:
• At new section 22M, the circumstances and criteria under which a person can apply to
be accredited to classify films and computer games. The application must be provided
in writing in a form approved by the Secretary, and be accompanied by an annual fee
(if any is prescribed).
The application process requires a person seeking accreditation to provide a
declaration that they have not been convicted of an offence against a law of the
Commonwealth or a law of a State or Territory involving fraud or dishonesty and has
not been ordered to pay a pecuniary penalty for the contravention of a civil penalty
provision Commonwealth or a law of a State or Territory involving fraud or
dishonesty.
The Secretary may accredit a person to classify games and films for a specified period
if: the person has made an application in accordance with requirements (above),
successfully completed approved training within the previous 12 months and paid any
prescribed accreditation fee, there is no barring notice in force against them (under
sections 17B, 17C, 22F, 22H or 22Q of the Act), the Secretary is not aware of any
14
other reason why the person is not a suitable person to classify films and computer
games.
Taken together, these provisions act as safeguards to establish that a person is fit and
proper to become accredited to classify films and computer games, and will conduct
their duties in a responsible and honest manner to maintain the integrity of the NCS
and protection of children and others from unsuitable or unsolicited content. The
disclosure and declaration requirements do not affect the operation of Part VIIC of the
Crimes Act 1914 relating to spent convictions.
Legislative authority is provided for the Government to make regulations to charge an
accreditation fee to recover the costs of administering the classification of films and
computer games by accredited persons for a specified accreditation period (for
example, annually or biannually). Examples of the types of costs envisaged include,
but are not limited to, IT support and development costs to maintain access to a portal
for accredited classifiers to record their classification decisions, as well as the
implementation of quality assurance checks by the Board for accredited classification
decisions. This fee must not be greater than the cost of providing the activity as this
would amount to taxation.
• At new section 22N, that the Secretary may request an accredited person complete
further approved training in classification if, during the previous 12 month period, the
Board has revoked 2 or more classifications by the person, or the Secretary otherwise
considers that additional training is necessary for an accredited classifier to perform
their functions competently.
This provision is designed to be applied as a corrective measure in the form of an
early intervention, where an accredited person has failed to demonstrate the desired
level of accuracy or competency in their classification decision making, but it is not
considered proportionate to revoke their accreditation for an extended period or issue
a barring notice. The person's accreditation will be suspended until the training has
been successfully completed.
• At new section 22P, the circumstances and criteria under which the Secretary may
revoke a person's accreditation to classify films and computer games.
These include where any of the following apply: the Board has revoked 3 or more
classification decisions by the person during the previous 12 month period; the
accredited person has not completed any required corrective training within the period
specified (section 22N); the Secretary becomes aware of the person having made a
false or misleading declaration in their accreditation application, having been
convicted of an offence against a law of the Commonwealth or a law of a State or
Territory involving fraud or dishonesty, or having been ordered to pay a pecuniary
penalty for the contravention of a civil penalty provision Commonwealth or a law of a
State or Territory involving fraud or dishonesty; if the person has purported to classify
a film or computer game as RC or X 18+, or the Board has revoked a classification
decision on the grounds that the material should be classification X 18+ or RC; or any
other reason why the person is not a suitable person to classify films and computer
games or as prescribed by the regulations to the Act.
A person is not able to apply to have their accreditation to classify films and computer
games reinstated for a period of 28 days. After this period, they are able to be
reaccredited by the Secretary, provided that criteria under section 22M of the Act are
met.
• At new section 22Q, the circumstances under which the Secretary may give a written
notice to bar an accredited person from classifying films and computer games for a
period up to 5 years.
15
These include: revocation of a person's accreditation by the Secretary on more than
one occasion; revocation of 2 or more classification decisions by the Board during the
person's most recent 3 accreditation periods, with at least 2 revocations on the
grounds that the Board would have given the material a classification two or more
categories higher or lower, or that the consumer advice was grossly misleading,
grossly incorrect or grossly inadequate; if the person has purported to classify a film
or computer game as RC or X 18+, or the Board has revoked a classification decision
on the grounds that the material should be classification X 18+ or RC; if the Secretary
is of the opinion that a person has knowingly made a false or misleading declaration
under subsection 22M(2), or that the person meets any other condition set out in the
regulations. The higher threshold for decision-making reflects the increased
seriousness of barring provisions in the Act.
A person who has been issued with a barring notice under this section of the Act
cannot be re-accredited to undertake any classification activities while the notice
remains in force.
• At new section 22R, that administrative decisions of the Secretary, in respect to
granting or revoking accreditation including the requirement that a person undertake
additional training (at section 22N) or issuing barring notices, can be brought to the
Administrative Appeals Tribunal for review.
Subdivision C - Other
A new 'Subdivision C - Other' establishes:
• At new section 22S, that the Secretary may approve training to enable a person to
become an accredited classifier under the Act, or remedial training for a person to
continue to be accredited under the Act (at section 22N). It is intended that the content
of this training will be developed in consultation with the Board to ensure that it
appropriately reflects current classification standards.
The provision also gives legislative authority for the Government to make regulations
to charge a fee to recover the costs of providing this training, and specifies that this
fee must not be greater than the cost of providing the activity as this would amount to
taxation.
• At new section 22T, the powers under Division 2G of the Act that are delegable by
the Secretary to a Senior Executive Service employee or Acting Senior Executive
Service employee within the administering Department who has responsibility for
classification matters. It is proposed to only delegate administrative matters where the
expected volume makes it practicable to do so. It is not proposed to delegate the
making of instruments under the Act, or decisions in relation to the barring of
accredited classifiers (section 22Q).
Provisions relating to delegations are contained in Sections 34AA to 34A of the Acts
Interpretation Act 1901.
Item 31 updates the heading of Division 5 of Part 2 of the Act to include "by the Board or
Review Board" to clarify that notification provisions in this part of the Act only apply to the
Board or Review Board.
16
Item 32 removes the following text in section 28 "a decision" and replaces this text with
"Unless this Act otherwise provides, a decision" to clarify when a decision made under the
Act takes effect.
Item 33 removes the following text in subsection 38(1) "the Board must not reclassify the
publication, film or computer game" and replaces it with "the publication, film or computer
game must not be reclassified" to clarify that this subsection of the Act applies to accredited
classifiers as well as the Board.
Item 34 removes the following text from the simplified outline of 'Part 5--Review of
decisions' at section 41A of the Act "the applicant received notice of the decision" and
replaces it with "the classification took effect". This clarifies that classification certificates
are not required to be issued for decisions made by classification tools, accredited classifiers
or revocations by the Board, as these decisions take effect when they are published on the
National Classification Database.
Item 35 inserts a new subsection 41B to extend the application of Part 5 of the Act, the
review of classification decisions by the Classification Review Board, to include decisions
made by accredited classifiers.
Item 36 inserts additional text at subsections 42(1) and 42(2) of the Act to clarify that
persons or a participating Minister (a state or territory minister with responsibility for
classification matters), respectively, may apply to the Classification Review Board for the
review of both decisions made by the Board or accredited classifiers.
Item 37 removes the text "of the Board" in subsection 42(5) of the Act to amend the
definition of a restricted decision to apply to decisions made by the Board or accredited
classifiers. While section 22K provides that accredited classifiers may not classify content at
the RC or X18+ level, they are permitted to classify content at the MA15+ and R18+
restricted classification levels.
Item 38 amends paragraph 43(3)(a) of the Act to the same effect as referenced at Item 34.
Item 39 updates the subheading for subsection 93(2) to include "or consumer advice".
Item 40 and 41 inserts new subparagraphs 93(2)(d) and 93(2)(e), as well as 93(3)(c) and
93(3)(d), to extend the circumstances under which regulations may be prescribed, and clarify
limitations of those regulations, in relation to consumer advice being taken to be misleading,
incorrect or grossly inadequate for the purposes of paragraphs 22CH(1)(b)(ii) and
22L(1)(b)(ii) of the Act, or for the purposes of 22Q(2)(b)(iii), grossly misleading, grossly
incorrect or grossly inadequate.
17
Part 2 - Application of Amendments
Classification (Publications, Films and Computer Games) Act 1995
Item 42 establishes that existing classification guidelines for the classification of films and
computer games, as provided for under section 12 of the Act, will apply to decisions of
accredited classifiers in the same way they apply to the Board. These guidelines support the
application of the National Classification Code for classification decisions relating to films or
computer games.
Under cooperative arrangements between the Commonwealth, states and territories for the
NCS, any changes to the classification guidelines must receive unanimous agreement from all
state and territory ministers with responsibility for classification matters. This approval is not
required in this instance as there are no proposed changes to the classification guidelines
under amendments proposed by the Bill.
Item 43 provides that existing authorisations for persons to assess certain computer games
content made under the previous subsection 17(5) of the Act, will continue to remain in effect
as provided for under the new section 17AA of the Act. This application is a result of the
reordering of Part 2 of the Act (as outlined at Item 9).
18
Part 3 - Consequential Amendments
Broadcasting Services Act 1992
Items 44 to 49 cover a number of consequential amendments required to the BSA to reflect
that classification decisions are now legally able to be made by both the Board and accredited
classifiers.
References to decisions made "by the Classification Board" in paragraphs 10(1)(f) and (g) of
Schedule 2 of the BSA, subclause 11(4) of the BSA, and paragraphs 24(1)(e) and (f) of
Schedule 6 of the BSA will be removed and replaced with the following text "under the
Classification (Publications, Films and Computer Games) Act 1995".
The reference to "administered by the Classification Board" at Paragraph 28(4)(a), (d) and (f)
of Schedule 6 of the BSA will be removed and replaced with the following text "provided for
by the Classification (Publications, Films and Computer Games) Act 1995".
The definition of the Classification Board will also be repealed from Subclause 1(1) of
Schedule 2 of the BSA and Subclause 2(1) of Schedule 6 of the BSA.
19
SCHEDULE 2 - Other amendments
Part 1--Criteria for revocation in relation to consumer advice
Classification (Publications, Films and Computer Games) Act 1995
Item 1 inserts a new section 12A in the Act to establish that the Board may issue a legislative
instrument containing a list of approved words and phrases to use in consumer advice, along
with guidance on how they should be used. It is intended that accredited persons and
operators of approved classification tools will use the list of approved consumer advices to
ensure consistent application for all content classified under the Act. The purpose of this is to
make it easier for consumers to understand and interpret consumer advice.
A delayed commencement date for this legislative instrument of 3 months, or a longer period
prescribed in regulations is specified and the Proclamation commencement date for the Act
will allow for this. The purpose of this delay is to give time for industry self-classifiers to
complete any additional training, and for classification tool owners to undertake system
updates and testing of the tool's algorithms and program logic in relation to the application of
changed consumer advices.
This legislative instrument will also be exempt from sunsetting and disallowance under
subsections 44(1) and 54(1) of the Legislation Act 2003, as it facilitates the operation of an
intergovernmental scheme involving the Commonwealth and one or more states or territories.
Item 2 repeals subsection 22CH(1) and replaces it with a new Subsection 22CH(1) that
establishes the circumstances and criteria under which the Board may revoke decisions of an
approved classification tool.
The text of subsection 22CH(1)(a) is unchanged. Updated provisions in subsection
22CH(1)(b) clarify that a decision can only be revoked if the Board would have given the
material a different classification, the consumer advice provided for the relevant material is
'misleading, incorrect or grossly inadequate' or the consumer advice for the relevant material
uses a term that is not included in the Board's published list of consumer advices (under
section 12A of the Act). The intent of this amendment is to create a more objective set of
criteria for revocation on the basis of different consumer advices, particularly in
circumstances where these differences would make no material difference to the usefulness of
the advice to consumers. This amendment also aligns this subsection with the criteria for
revocation of decisions by accredited classifiers at subsection 22L(1)(b).
The term 'relevant material' is included to provide clarification that this revocation criteria
can only be used in circumstances where the consumer advice list at section 12A was in force
at the time the classification decision was made.
New subsection 22CH(1A) will require the Board, in deciding whether to revoke a decision,
to have regard to the conditions of any agreement, arrangement or understanding between the
Minister and administrators of approved classification tools as provided for under section
22CC of the Act.
The purpose is to ensure that the Board gives due consideration to arrangements that the
Government has entered into regarding the operation of a classification tool. For example,
where content falls between two classification ratings, an arrangement may require the tool to
adopt the higher of the two possible classification ratings. Such an arrangement must be taken
into account by the Board in deciding whether or not to revoke the classification and
reclassify at the lower classification rating.
20
Item 3 provides that the application of amendments under this Part of the Act apply in
relation to decisions of the Board that are made on or after the commencement of this Part, to
revoke a classification (whether or not the classification was made before, on or after that
commencement).
21
Part 2--Exemption for public library distribution of films in a
language other than English
Classification (Publications, Films and Computer Games) Act 1995
Item 4 inserts a new entry at the end of the table under subsection 6B(1) to provide for films
in languages other than English, distributed through public libraries, to be exempt from
classification.
For this exemption to apply, films will need to be wholly in a language other than English
(not including minor and infrequent uses of English or English language subtitles or
captioning) and likely to receive a classification rating of G or PG, have been imported into
Australia for the sole purpose of being included in the collection of a public library or library
of a tertiary educational institution, be published in a physical format and no more than 500
copies will have been imported into Australia.
The intent of this exemption is to minimise the regulatory burden for low risk classifiable
content and increase community access, particularly for culturally and linguistically diverse
communities, to cultural content. Under current arrangements, access to films in community
languages is limited to those which can be imported and sold in large enough volumes to
offset the cost of classification.
Item 5 provides that the application of amendments under this Part of the Act apply to films
imported into Australia before, on or after the date of commencement.
22
Part 3--Extending conditional cultural exemptions
Classification (Publications, Films and Computer Games) Act 1995
Item 6 removes the text "as part of an organised event" from section 6E(a) of the Act. This
has the effect of broadening the application of conditional cultural exemptions for classifiable
content to include routine exhibitions at approved cultural institutions (defined at section 6F
of the Act).
Removing this requirement will clarify the compliance requirements for approved cultural
institutions, and will lower the administrative burden for the conduct of routine exhibitions
that are considered low-risk. These institutions already have measures in place to ensure that
young people are kept safe from content that is not appropriate for them. For example,
festivals and cultural institutions will be required to provide patrons with warnings about the
content that they are about to see and prohibitions on the screening or display of content
likely to be X 18+ or RC will be retained.
23
Part 4-- Deeming of films already classified under certain other Acts
Classification (Publications, Films and Computer Games) Act 1995
Items 7, 8 and 9 update definitions under section 5 of the Act to:
• repeal the definition of authorised television series assessor, as the scheme for
Authorised Assessors of Television Series (ATSA) will be repealed as outlined at
Item 12, and
• insert a new note at the end of the of the definition of classified to reference that
certain films classified under the BSA, ABC Act or SBS Act are now taken to be
classified under the Act, and
• repeal the definition of television series film as this term is not used in relation to
content classified under the BSA, ABC Act or SBS Act elsewhere in the Act.
Item 10 updates the simplified outline for Part 1A of the Act (section 6AA) to assist readers
to understand this part of the Bill. It omits the reference to an 'event' in relation to the
application of conditional cultural exemptions, reflecting the broadening of these exemptions
to cover routine exhibits as well as events. It adds the statement that films classified under the
BSA, ABC Act or SBS Act are taken to be classified by the Board in some circumstances.
This outline is not intended to be comprehensive. It is intended that readers should rely on the
substantive provisions.
Item 11 inserts a new heading at the end of Part 1A of the Act 'Division 3 - Films classified
under certain other Acts'. This is a new Division which provides for certain films classified
under the BSA, ABC Act or SBS Act to be taken to be classified under the Act, and when
this deemed classification takes effect.
Division 3 - Films classified under certain other Acts
A new 'Division 3 - Films classified under certain other Acts' establishes:
• At new section 6HA, that certain films already classified under the BSA, ABC Act or
SBS Act are taken to be classified under the Act provided: the film has a classification
rating of R18+ or lower, has not been previously classified under the Act and is not
modified post-classification. The deeming applies to film classified up to R 18+ as
subscription narrowcasting services are able to carry R 18+ material. This is also
allowed under the ATSA scheme which will be repealed by this deeming provision.
The intent of this provision is to support a 'classify once' principle where content that
has been classified using similar classification guidelines does not need to be
classified again. It also addresses an anomaly in the BSA, as per the Broadcasting
Services ("Broadcasting Service" Definition--Exclusion) Determination 2022,
whereby on-demand services including 'catch-up' services operated by broadcasters
(for example Nine Now or ABC I-view) are not covered by the definition of a
broadcasting service under the BSA, but are instead regulated under the Classification
Act.
Deeming will apply only to the most recent classification of a film for broadcast, that
occurred before the film was published by the post-classification publisher.
24
The circumstances for the deeming to take effect are differentiated between broadcast
services (under the BSA, ABC Act and SBS Act) and others, to enable classifications
of on-demand services associated with television broadcasters to legally carry over a
classification with no additional administrative burden or vice versa. Post-
classification publishers who seek to publish content classified for broadcast in other
formats, for example SVOD services or DVD publishers, can only use the
classification given by a broadcaster under the BSA, ABC Act or SBS Act after they
notify the Department, including details of the broadcaster that made the classification
the post classification publisher intends to carry over. This will enable the Department
to investigate any cases of potential misuse of deeming provisions to preserve the
integrity of the NCS.
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. It is also 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.
• At new section 6HB, that a post-classification publisher may choose to reclassify a
film that has already been classified for broadcast in certain circumstances. This is a
safeguard to enable publishers to reclassify content if they consider the most recent
broadcast classification does not align with contemporary community standards in
accordance with current classification guidelines. For example, if a television series
was last classified for broadcast in the 1980s and contains sexual references which
were at the time accommodated at the PG classification rating, but which may now
receive an M classification.
This provision does not apply if the film has already been reclassified under the
Classification Act, or if the classification of the film has been subject to review by the
Classification Review Board under Part 5 of the Act.
Item 12 repeals sections 14B and 21AB of the Act. These sections provide for the operation
of the ATSA Scheme, under which persons can become authorised to assess content for
television series to be published in other formats, such as DVD or streaming video on
demand, and recommend a classification to the Board. The new provisions at section 6HA
will make the Scheme redundant as classifications for this content made under the BSA, ABC
Act or SBS Act will be carried over to these other formats, providing the conditions
contained in 6HA are met.
Item 13 provides that the application of amendments under this Part of the Act apply on or
after the commencement of this Part, in relation to a film classified under the BSA, ABC Act
or SBS Act (whether or not the classification was made before, on or after that
commencement).
25
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