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2013-2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES)
AMENDMENT (CLASSIFICATION TOOLS AND OTHER MEASURES) BILL 2014
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Minister for Justice, the Hon Michael Keenan MP)
CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES)
AMENDMENT (CLASSIFICATION TOOLS AND OTHER MEASURES) BILL 2014
GENERAL OUTLINE
This Bill amends the Classification (Publications, Films and Computer Games) Act 1995
(Classification Act) to implement a set of first tranche` reforms based upon the
recommendations of the Australian Law Reform Commission (ALRC) in the Classification-
Content Regulation and Convergent Media (ALRC Report 118) This 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 National Classification Scheme
(NCS).
This Bill will also make consequential amendments to the Broadcasting Services Act 1992
(BSA).
Background
The NCS is a cooperative arrangement under which the Classification Board (the Board)
classifies films (including videos and DVDs), computer games and certain publications. The
Classification Act provides for the classification of publications, films and computer games
while States and Territories are responsible for the enforcement of classification decisions.
Each State and Territory has classification enforcement legislation that complements the
Classification Act.
The NCS is designed to provide consumers with classification information about
publications, films and computer games to allow them to make informed decisions about
appropriate entertainment material. The NCS is based on principles that adults should be
able to read, hear, see and play what they want while recognising that minors should be
protected from material likely to harm them and that everyone should be protected from
offensive unsolicited material.
It has been almost 20 years since major classification reform was undertaken. During this
time the technology for delivering content, and the sheer amount of content available, has
changed dramatically. In 2010, Ministers responsible for classification matters
(Classification Ministers) agreed to refer the NCS to the ALRC for review in light of these
technological advances. The ALRC recommended fundamental changes to the architecture
and regulatory framework of the NCS.
At the April 2013 meeting of the Standing Council on Law and Justice, Classification
Ministers agreed that reform of the NCS should be carried out in stages, beginning with a
first tranche` of reforms to be implemented in the short term (one to two years) under the
current scheme. These initial reforms will realise benefits for consumers, reduce
administrative red tape and the regulatory burden on industry and increase industry
compliance with classification laws, thereby improving the effectiveness of the NCS without
prejudicing an ongoing program of major structural reforms.
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In line with Ministers` decision, this Bill amends the Classification Act to:
broaden the scope of existing exempt film categories and streamline exemption
arrangements for festivals and cultural institutions;
enable certain content to be classified using classification tools (such as online
questionnaires that deliver automated decisions);
create an explicit requirement in the Classification Act to display classification
markings on all classified content;
expand the exceptions to the modifications rule so that films and computer games
which are subject to certain types of modifications do not require classification again;
and
enable the Attorney-General`s Department to notify law enforcement authorities of
potential Refused Classification content without having the content classified first, to
help expedite the removal of extremely offensive or illegal content from distribution.
FINANCIAL IMPACT STATEMENT
The implementation of these initial reforms will be met from within existing resources. As
the reforms will reduce the regulatory and administrative burden on industry in relation to
obtaining classification decisions, they are expected to generate savings for industry.
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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 (Classification
Tools and Other Measures) Bill 2014
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 Bill amends the Classification (Publication, Films and Computer Games) Act 1995 (the
Classification Act) and makes consequential amendments to the Broadcasting Services Act
1992.
The Classification Act provides for the classification of publications, films and computer
games. It forms part of a cooperative Commonwealth, State and Territory scheme--the
National Classification Scheme (NCS). The NCS is designed to provide consumers with
information about publications, films and computer games to allow them to make informed
decisions about appropriate entertainment material for themselves and those in their care.
The NCS has not had a significant review since it was established in 1996. Since this time,
classifiable content, and the way in which it is delivered to consumers, has changed
dramatically. For example, consumers now have ready access to classifiable content on a
variety of platforms, such as the delivery of computer games on mobile and other online
devices.
In light of these changes and broader developments in technology, media convergence and
the availability of global content, the Attorney-General referred the NCS to the Australian
Law Reform Commission (ALRC) for review.
The ALRC tabled its Final Report on the NCS, Classification-Content Regulation and
Convergent Media (ALRC Report 118), on 1 March 2012. The ALRC made 57
recommendations for changes to the regulatory framework and structure of the NCS.
A number of the ALRC`s recommendations, which are limited` in their application to
content currently regulated under the NCS, have been identified by the Government for
implementation as a first tranche` of reform. This Bill will implement the first tranche of
reforms that are based on these recommendations.
These reforms will:
broaden the scope of existing exempt film categories and streamline exemption
arrangements for festivals and cultural institutions;
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enable certain content to be classified using classification tools (such as online
questionnaires that deliver automated decisions);
create an explicit requirement in the Classification Act to display classification
markings on all classified content;
expand the exceptions to the modifications rule so that films and computer games
which are subject to certain types of modifications do not require classification again;
and
enable the Attorney-General`s Department to notify law enforcement authorities of
potential Refused Classification content without having the content classified first, to
help expedite the removal of extremely offensive or illegal content from distribution.
In addition to the ALRC-related reforms outlined above, this Bill will make a number of
minor amendments to the Classification Act which will improve the clarity of certain
provisions, address legislative anomalies and enhance the administrative efficiency of the
NCS.
The minor and technical amendments to the Classification Act include:
providing an explicit power for the Minister to determine the rules for the display of
consumer advice;
aligning the provisions relating to the computer games authorised assessor scheme
with the newer provisions relating to additional content assessors;
amending subsection 38(1) to address the ambiguity that exists in relation to the date
that a classification decision is made because the provision currently refers to when a
classification is done; and
replacing the requirement that the Classification Board contains Senior Classifiers
with a discretion to appoint Senior Classifiers.
Human Rights Implications
The Bill engages the following human rights:
freedom of expression in Article 19(2) of the International Covenant on Civil and
Political Rights (ICCPR);
children`s rights to freedom of expression in Article 13 of the Convention on the
Rights of the Child (CRC);
the promotion of the best interests of the child under Article 3 of the CRC;
the right of the child to access information and material from a diversity of national
and international sources in Article 17 of the CRC;
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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;
the right to education in Article 13(1) of the International Covenant on Economic
Social and Cultural Rights (ICESCR);
the right of everyone to take part in cultural life in Article 15(1)(a) of ICESCR; and
the right of ethnic, religious or linguistic minorities to enjoy their own culture in
Article 27 of the ICCPR.
Freedom of expression
Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of
expression - including the freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, through any form of media. Article 19(3) provides that the
exercise of freedom of expression carries with it special duties and responsibilities. As a
result, it can be subject to restrictions provided for by law and necessary to respect the rights
or reputations of others, for the protection of national security, public order or public health
or morals. Article 13 of the CRC mirrors this right in relation to children.
Best interests of the child
Article 3(1) of the CRC requires that in all actions concerning children, whether undertaken
by public or private social welfare institutions, courts of law, administrative authorities or
legislative bodies, the bests interests of the child shall be a primary consideration.
Right of access to information
Article 17 of the CRC requires that the child has access to information and material from a
diversity of national and international sources, especially those aimed at the promotion of his
or her social, spiritual and moral well-being and physical and mental health.
Assistance to parents and legal guardians
Article 18(2) of the CRC requires State Parties to render appropriate assistance to parents and
legal guardians in the performance of their child-rearing responsibilities.
Protecting children from sexual exploitation and sexual abuse
Article 34(c) of the CRC requires State Parties to undertake to protect the child from all
forms of sexual exploitation and sexual abuse. State Parties shall in particular take all
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appropriate national, bilateral and multilateral measures to prevent the exploitative use of
children in pornographic performances and materials.
Right to education
Article 13(1) of the ICESCR provides that everyone has a right to education. Education shall
be directed to the full development of the human personality and the sense of its dignity, and
shall strengthen the respect for human rights and fundamental freedoms.
Cultural life
Article 15(1) of the ICESCR recognises the right of everyone to take part in cultural life.
Similarly, Article 27 of the ICCPR provides that in those States in which ethnic, religious or
linguistic minorities exist, persons belonging to such minorities shall not be denied the right,
in community with the members of their group, to enjoy their own culture, to profess and
practice their own religion, or to use their own language.
Exemptions Reform
Existing section 5B of the Classification Act allows for certain categories of films and
computer games - and only those that do not contain material that would likely be classified
M or higher - to be exempt from classification requirements.
Expansion of Exempt Film Categories
Section 5B will be amended to broaden the scope of the existing exempt film categories and
provide greater flexibility for certain films to be exempt from classification requirements.
The section will then become section 6B.
Currently, eight of the 13 exempt film categories state that a film must wholly` comprise the
genre to be exempt: Current affairs; Hobbyist; Sporting; Family; Live performance; Musical
presentation; Religious; and Community or cultural. For example, a film wholly comprising
a live musical concert is currently exempt while a film comprising a live musical concert and
a brief backstage interview is not. These categories will be expanded so that content may be
exempt from classification if it wholly or mainly comprises the type of content specified in
the category.
Further, section 6B will also contain two new categories of exempt film to cover:
i) a film that wholly or mainly comprises information about, or analysis of, subjects
relating to the social sciences; and
ii) a natural history film, or any film depicting wholly or mainly natural scenery.
Content providers are not required to obtain exemptions under s 6B from the Classification
Board--the onus is on the content provider, producer or distributor to make their own
assessment about whether their content falls within the exempt categories outlined above and
can be distributed without being classified.
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The expansion of the exempt film categories will better reflect contemporary film content and
will accommodate a greater range of documentary-style content, such as nature
documentaries and live music performances, accompanied by related material that informs
and educates the public. Broadening the exempt film categories to include the types of films
identified above promotes the rights to freedom of expression in Article 19(2) of the ICCPR
and Article 13 of the CRC.
This amendment will also promote the right of the child to access information and material
from a diversity of national and international sources under Article 17 of the CRC and the
right of everyone to take part in cultural life in Article 15(1)(a) of the ICESCR. These
amendments will ensure that consumers continue to have 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 educational, artistic and cultural content.
For industry, the regulatory burden and the costs associated with having material classified
will be reduced. This is because certain content previously required to be classified by the
Classification Board will now be exempt from these requirements. It is anticipated that this
reform will lead to a greater diversity of educational, artistic, sporting and cultural content
being available in the mainstream marketplace.
In accordance with Article 19(3), existing limitations on the right to freedom of expression,
designed to protect the rights and reputations of others and to protect public morals generally,
will be retained to limit the type of content that may be exempt under s 6B of the
Classification Act. Any content that would likely be classified higher than PG will still need
to be submitted for classification to the Classification Board. The prohibition on unclassified
content that may be offensive to adults, that is, content classified or likely to be classified X
18+ or RC (Refused Classification) will also be retained.
These limitations will ensure that everyone is protected from exposure to unsolicited material
that they may find offensive. These limitations also promote the best interests of the child in
accordance with Article 3 of the CRC by ensuring that while adults are able to read, hear,
play and see what they want, minors should be protected from material likely to harm or
disturb them.
Exemptions for Festivals and Cultural Institutions
New sections 6C, 6D, 6E, 6F, 6G and 6H will simplify the regulatory requirements for
festivals and cultural institutions by removing the need to apply to the Director for a formal
exemption from classification requirements.
Currently, under provisions in each State and Territory`s classification enforcement
legislation, film festival promoters or cultural institutions must apply to the Director for an
exemption to publicly exhibit unclassified films at a film festival or community event.
Under the new provisions, festivals and cultural institutions will instead self-assess their
eligibility for an exemption under uniform arrangements that will be set out in the
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Classification Act. The Classification Act will also explicitly provide exemptions for
festivals or cultural institutions that screen, demonstrate or exhibit unclassified publications
and computer games.
Reducing the regulatory burden on festivals and cultural institutions will strengthen the
capacity of the cultural sector to contribute to national life, support cultural diversity and
encourage community engagement with arts and culture.
Providing exemptions for unclassified content to be publicly exhibited at festivals or
community events promotes the freedom of expression in Article 19(2) of the ICCPR and
Article 13 of the CRC, the right of everyone to take part in cultural life under Article 15(1)(a)
of the ICESCR and the right of ethnic, religious or linguistic minorities to enjoy their own
culture under Article 27 of the ICCPR. This reform is a way in which the Government can
further contribute to, and increase, access to the arts and cultural sector.
Article 19(3)(b) of the ICCPR provides that freedom of expression may be subject to certain
restrictions that are provided by law and are necessary for the protection of public morals. In
accordance with this Article, 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 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.
These restrictions are an appropriate limitation on freedom of expression which ensure that
everyone is protected from exposure to unsolicited material that they may find offensive and
that public morals are protected.
Furthermore, sections 6C and 6E will limit the screening, exhibition or demonstration of:
unclassified content that is likely to be high in impact to persons aged over 18 years; and
unclassified content that is likely to be moderate or strong in impact to persons aged over 15
unless accompanied by an adult. These age restrictions promote the purposes of Article 3 of
the CRC (the best interests of the child), as the festival exemptions will continue to ensure
that children and young people are protected from harm that may arise from exposure to
age-inappropriate material.
Classification Tools Reform
Section 22CA will enable the Minister to approve the use of classification tools, such as
online questionnaires, to classify certain content. A classification tool might take the form of
an automated decision-making tool that will generate an Australian classification decision in
response to a questionnaire completed by the applicant.
Since the NCS was established in 1996, there have been significant and rapid advances in
technology. This has had a profound effect on how publications, films and computer games
are distributed and sold by publishers, and how they are accessed by consumers.
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For example, presently, the significant majority of computer games available on mobile
devices and online are not classified under the NCS prior to being made available to
Australian consumers. This undermines the integrity of the NCS and is in breach of a range
of relevant State and Territory laws concerning the sale, demonstration and advertising of
computer games.
The Classification Board in its current form is unable to classify the vast volume of this type
of content. The introduction of classification tools will assist the Classification Board to
classify content (such as mobile and online games) which are currently unclassified and
readily available in the Australian market.
This measure, which will introduce another mechanism for the classification of content, may
be seen to limit the freedom of expression under Article 19(2) of the ICCPR. That is, more
content may be classified and some of that content may be classified RC, meaning that it will
not be legally available for sale in the Australian market.
However, in accordance with Article 19(3) (restrictions on the freedom of expression) of the
ICCPR, the introduction of classification tools is a necessary measure to assist with
controlling the distribution of content that would likely be classified X 18+ or RC. The
distribution of this content is generally not allowed under State and Territory classification
laws. Providing classification information for more content will help law enforcement
officials police the distribution of banned or restricted content.
Further, this measure will contribute to an increase in compliance with classification
requirements by providing industry with an additional mechanism for obtaining classification
decisions cheaply and efficiently. Increasing the volume of content that is classified better
protects consumers from exposure to unsolicited material that they find offensive and
contributes to the protection of public morals.
This reform also promotes Article 3 (the best interests of the child) and Article 18(2)
(rendering appropriate assistance to parents or legal guardians in the performance of their
child rearing responsibilities) of the CRC. One of the objectives of classification is to protect
children from material that is likely to harm or disturb them. As such, this measure supports
the overall principles on which the NCS is based.
The introduction of classification tools will assist the Classification Board to provide more
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.
Referral of Potential RC Content Reform
This reform will introduce section 88B into the Classification Act to explicitly enable officers
of the Department to notify law enforcement authorities of content that is potentially RC
without first having the content classified by the Classification Board.
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Currently, the Classification Act does not explicitly empower officers of the Department to
refer RC or potentially RC content to the relevant law enforcement authorities prior to having
the content classified.
Officers of the Department visit premises throughout Australia to check whether classifiable
content for sale, public exhibition or hire complies with classification laws, and refer possible
breaches of the law to police and other law enforcement agencies.
In certain circumstances there is a need to deal with the most serious content expeditiously.
The type of content that might be referred to law enforcement authorities, without first having
the content classified, includes child sexual abuse content. It is in the public interest to have
this content removed from distribution as soon as possible.
New section 88B promotes Article 34(c) (State parties shall take all appropriate measures to
prevent the exploitative use of children in pornographic performances and materials) as it
assists in preventing the distribution of content which depicts the exploitative use of children
in pornographic performances and materials. It also promotes Article 3 of the CRC (the best
interests of the child), because such content is removed from public distribution as soon as
possible.
The purpose of this reform is to introduce a provision into the Classification Act which
explicitly legislates what currently occurs in practice. This provision is directed solely to
notifications` about RC content. That is, law enforcement authorities will be notified of the
content that is likely to be RC (such as child abuse material), and it is for the law enforcement
authorities to seize such material. If there is uncertainty about whether the content is RC,
there will remain the opportunity to get the content classified at a later time, or in any event,
prior to the commencement of any prosecution proceedings.
The other amendments contained in this Bill do not engage any human rights. These include:
amending the Classification Act to ensure that classification markings are displayed on
classified advertisements and products; amending the current requirements concerning when
content becomes unclassified because it has been modified in some way; and making a
number of minor and consequential amendments. The purpose of these reforms is to reduce
the regulatory requirements on industry, improve the overall administrative efficiency of the
NCS and address the clarity of certain provisions or any legislative anomalies.
Conclusion
The Bill is compatible with human rights because it advances the protection of human rights.
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NOTES ON CLAUSES
Clause 1 - Short title
This clause provides that when the Bill is enacted, it may be cited as the Classification
(Publications, Films and Computer Games) Amendment (Classification Tools and Other
Measures) Act 2014.
Clause 2 - Commencement
This clause provides that each provision of this Bill which is listed in column 1 of the table in
this clause will commence or be taken to have commenced in accordance with column 2 of
the table.
Part 3 of Schedule 3 of this Bill will commence on Proclamation or on the day after the
period of 12 months from Royal Assent. The commencement of this Part has been delayed to
ensure that there is sufficient time for States and Territories to make the necessary
consequential amendments to their classification enforcement legislation to complement the
Commonwealth scheme for exemptions relating to registered events and approved cultural
institutions.
Clause 3 - Schedule(s)
This clause provides that the Schedules to the Act will amend or repeal each Act as set out in
the applicable items in the Schedule and that any other item in a schedule to this Act has
effect according to its terms.
Terms and abbreviations
For ease of description, this Explanatory Memorandum uses the following terms or
abbreviations:
Board` means the Classification Board;
BSA` means the Broadcasting Services Act 1992;
Convenor` means the Convenor of the Classification Review Board;
Director` means the Director of the Classification Board;
Classification Act` means the Classification (Publications, Films and Computer
Games) Act 1995;
LIA` means the Legislative Instruments Act 2003; and
RC` means Refused Classification.
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SCHEDULE 1--CLASSIFICATION TOOLS
Classification (Publications, Films and Computer Games) Act 1995
Brief Outline
Schedule 1 will amend the Classification Act to enable the Minister to approve classification
tools to classify certain content.
Classification tools, such as online questionnaires, might be developed by government,
industry or classification bodies overseas. These tools will be capable of classifying content
cheaply and quickly and will enable producers of content that is currently sold and distributed
unclassified to more easily comply with classification legislation.
The Board will continue to have an important role in the classification of content. That is, the
reform will work in tandem with, and not replace, the Classification Board.
Item 1 - section 5
Item 1 will amend existing section 5 to insert a definition of approved classification tool`.
An approved classification tool is a tool that is approved by the Minister to classify
publications, films and/or computer games.
Item 2 - Division 2 of Part 2
Item 2 will repeal the existing heading to Division 2 of Part 2 and replace it with the heading
Division 2--Classification by the Board`.
Item 3 - subsection 10(3)
Item 3 will insert new subsection 10(3) so that where the Board has revoked the classification
of material that was classified using an approved classification tool, the Board may classify
that material (under new subsection 22CH(4)) without requiring an application.
Item 4 - Division 2AA
Item 4 will insert new Division 2AA--Classification by approved classification tools`,
which comprises Subdivisions A to D.
Subdivision A--Approved classification tools
This subdivision will contain new sections 22CA and 22CB, which will enable the Minister
to approve the use of classification tools to classify material, and provide the Minister with
the power to vary or revoke the approval.
New section 22CA will enable tools, approved by the Minister, to be used to classify
material. Subsection 22CA(1) will allow the Minister to approve the use of a classification
tool to classify any combination or class of publications, films and/or computer games
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(known as relevant material). Subsection 22CA(2) will state that the tool, once approved, is
known as an approved classification tool. An approved classification tool may take the form
of a questionnaire and could be on a website or in the form of a computer program or other
interface which allows a person to provide information regarding the relevant material. In
response, the tool will deliver a classification decision and consumer advice for the relevant
material.
Subsection 22CA(3) will establish that an approved classification tool will be subject to any
conditions outlined in the Minister`s approval for that tool. For example, the Minister may
approve a classification tool subject to conditions: that the tool be used only to classify
material that is likely to be classified no higher than M; that the tool may not be used to
classify particular material; and that the tool may not be used to classify material if a
particular person is the applicant for classification.
Subsection 22CA(4) will establish that the Minister, in determining whether to approve a
classification tool, must consider the matters set out in any guidelines made under this
subsection. Subsection 22CA(5) will state that the Minister must not approve a classification
tool unless it will produce an Australian classification for the relevant material, determine
consumer advice and notify the decision and consumer advice to the Director.
Subsection 22CA(6) will be included to clarify the legal status of the Minister`s approval of a
classification tool. The approval given by the Minister is not a legislative instrument because
it does not fall within the meaning of section 5 of the LIA. Likewise, subsection 22CA(7)
will be included to clarify that guidelines (made under subsection 22CA(4)) are not a
legislative instrument within the meaning of section 5 of the LIA. Subsection 22CA(8) will
stipulate that the guidelines (made under subsection 22CA(4)) must be published on the
Department`s website.
New section 22CB will enable the Minister to vary or revoke the approval of a classification
tool. For example, the Minister may decide to revoke the approval of a classification tool if it
malfunctions. The intention of new subsection 22CB(2) is that revocations or variations of
the approval cannot take effect retrospectively. This means that a decision that has been
produced by the tool prior to the revocation or variation of an approval for that tool will
remain valid after the revocation or approval of that tool.
Subdivision B--Contracts etc. in relation to approved classification tools
This subdivision will comprise new sections 22CC, 22CD and 22CE, which will ensure that
the Minister may, among other things, enter into a contract or become a member of a
corporation for the purpose of using or developing an approved classification tool.
Section 22CC will expressly empower the Minister, on behalf of the Commonwealth, to enter
into contracts, arrangements or understandings for purposes related to the development,
operation or availability of a classification tool. For example, the Minister may approve a
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classification tool and the developer of the tool may then require the Minister to enter into a
contract (which involves government expenditure) to enable the use of the tool.
Section 22CD will expressly enable the Minister, on behalf of the Commonwealth, to take
part in forming a corporation or become a member of a corporation for purposes related to the
development, operation or use of a classification tool. For example, the Minister may decide
that the Commonwealth should partake in a not-for-profit corporation that enables the
development or availability in Australia of a particular classification tool.
Section 22CE will provide that new Subdivision B does not limit the executive power of the
Commonwealth. The intention of this new subsection is to clarify that sections 22CC and
22CE do not affect or interfere with any existing powers of the Commonwealth to enter into
contracts, arrangements or understandings, or to form corporations or become a member of a
corporation.
Subdivision C--Classification by approved classification tools
This subdivision will comprise new sections 22CF, 22CG and 22CH, which will establish:
that material may be classified by approved classification tools; that persons may apply to the
Director for approved classification tool certificates; and that the Board may revoke the
classification of, and immediately classify, material that has been incorrectly classified by an
approved classification tool.
Section 22CF will establish that a classification decision produced by an approved
classification tool is a classification decision for the purposes of the Classification Act.
Subsection 22CF(1) will state that unclassified material that is classified using an approved
classification tool, where any prescribed fee has been paid, is taken to have been classified by
the Board.
Subsection 22CF(2) will state that the provisions set out in Division 2 of Part 2 (except for
section 21) and Division 5 of Part 2 will not apply to decisions produced by an approved
classification tool. These provisions will not apply because decisions made by an approved
classification tool, despite being deemed to be decisions made by the Board, will not involve
the exercise of discretion and are different to decisions made by human decision-makers.
Subsection 22CF(3) will be included to clarify that a decision produced by an approved
classification tool will not be valid if the decision does not comply with a condition that was
imposed in the approval of the classification tool. For example, if an approval imposes a
condition that the classification tool may only be used to classify computer games that are not
classified higher than M, and the tool purports to classify a computer game MA 15+, the
decision will not be valid under the Classification Act.
Subsection 22CF(4) will state that a decision of an approved classification tool takes effect
when it is included in the National Classification Database or any replacement register.
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Subsection 22CF(5) will specify that consumer advice which is determined by the approved
classification tool will be taken to be consumer advice determined by the Board.
Section 22CG will establish that a person may apply to the Director for a certificate for a
classification decision that has been produced by an approved classification tool. For an
application to be valid, paragraphs 22CG(1)(a) and (b) will require that the material must
have been, and must remain, classified because of the use of an approved classification tool.
That is, an application cannot be made for a certificate under this section if the Board has
revoked the approved classification tool`s decision (under new section 22CH(1)) or if the
material has otherwise become declassified, been reclassified or been reviewed.
Section 22CH will allow the Board to revoke an incorrect classification decision produced by
an approved classification tool. If the Board decides to revoke the classification of the
material, the Board must classify the material itself.
Subsection 22CH(1) will give the Board the discretion to revoke a classification decision
produced by an approved classification tool if the Board is of the opinion that it would have
given the material a different classification or assigned different consumer advice for the
material. It is not intended that it will be mandatory for the Board to revoke an incorrect
classification decision produced by an approved classification tool.
Subsection 22CH(2) will specify that the Board may revoke a classification decision on its
own initiative or on application. Subsection 22CH(3) will state that applications for
revocation must be in an approved form and made: within 3 months of the decision by the
approved classification tool; or, if another period is specified in a determination made under
new subsection 22CH(8), within that longer period. Paragraph 22CH(3)(c) will also allow
the Minister to determine (or limit) by legislative instrument the class of persons who may
apply to the Board to consider revoking the classification decision produced by an approved
classification tool. For example, the legislative instrument may be used by the Minister, if
necessary, to minimise applications from persons who are vexatious or may have no bona
fide interest in the classification. Paragraph 22CH(3)(d) will stipulate that an application
made under paragraph 22CH(2)(b) must be accompanied by the prescribed fee (if any).
The intended purpose of subsections 22CH(2) and (3) is to enable the Board to act on its own
initiative (for example, in response to consumer complaints) to consider whether it is
appropriate to revoke a decision made by an approved classification tool. However, where a
person has a commercial or other interest in changing a classification decision produced by
an approved classification tool, the provisions appropriately enable a fee to be charged and
limit the timeframe in which a person may apply. For example, a publisher who wishes to
obtain a more favourable classification than the one produced by the approved classification
tool might apply to the Board to have the original classification decision revoked.
Subsection 22CH(4) will specify that if the Board decides to revoke the classification
decision produced by the approved classification tool, the Board must classify the relevant
material. That is, revocation under subsection 22CH(1) automatically triggers classification
16
under subsection 22CH(4). This is to ensure that persons who use approved classification
tools to classify material are not adversely affected by a revocation, whilst also providing for
the Board to expediently change the classification of material that is in the public domain and
is incorrectly classified.
Subsections 22CH(5) and (6) will stipulate that classification decisions made by the Board
under subsection 22CH(4) will take effect when they are included in the National
Classification Database or any replacement register.
Subsection 22CH(7) will ensure that the revocation under subsection (1) and the
classification under subsection (4) occur almost simultaneously. The intention of this
subsection is to ensure that there is no period of time during which the material is available in
the marketplace unclassified (in breach of State and Territory classification enforcement
legislation) or during which the publisher of the material is unable to sell or distribute their
material. A decision of the Board to revoke a classification produced by an approved
classification tool is not subject to review by the Review Board because the Board`s
classification decision (under subsection 22CH(4)) is reviewable.
Subsection 22CH(8) will empower the Minister to make a legislative instrument for the
purposes of determining: a specified period in which an application may be made to the
Board for revocation of a classification produced by an approved classification tool; or the
class of persons who may apply to the Board for revocation of a classification produced by an
approved classification tool.
Subdivision D--Other
Subdivision D will insert new section 22CJ to include a power of delegation for the Minister.
Section 22CJ will enable the Minister to delegate his or her powers under Division 2AA to
the Secretary of the Department, except for the power to make guidelines that specify the
matters to be taken into account when approving a classification tool. The Secretary must
comply with the Minister`s directions, if any, in exercising delegated powers or performing
delegated functions. This is appropriate for administrative efficiency and also because of the
specialised knowledge of the Secretary in relation to classification matters.
Item 5 - subsection 43(4)
Item 5 will make a minor amendment to existing subsection 43(4) to state that, if a review of
a decision is initiated by a person other than the original applicant for classification, the
Convenor only needs to notify the original applicant if it is practicable to do so. For example,
where the person who used an approved classification tool to produce a classification (the
original applicant) cannot be notified or identified, the Convenor will not be required to give
notice of a review to that person.
17
SCHEDULE 2--REFERRAL OF MATERIAL TO LAW
ENFORCEMENT AGENCIES
Classification (Publications, Films and Computer Games) Act 1995
Brief Outline
Schedule 2 will amend the Classification Act to enable the Secretary or officers of the
Department to notify law enforcement authorities about certain content without first having
the content classified by the Board. It is in the public interest to have serious content, such as
child abuse material, removed from distribution as soon as possible.
Item 1 - section 4A
Item 1 will insert new section 4A after section 4 which will ensure that State and Territory
Acts, including offence provisions, continue to operate concurrently with the Classification
Act. Some provisions of the Classification Act, such as the new offence provision (new
section 8AA), will operate beyond the Australian Capital Territory and should not interfere
with or displace State and Territory legislation. As a consequence of the insertion of this
section, existing section 100 will be repealed.
Item 2 - section 88B
Item 2 will insert new section 88B after 88A which will explicitly empower the Secretary of
the Department to notify State and Territory police and other law enforcement bodies of
potential RC content without first having the content classified by the Board.
Subsection 88B(1) will establish that if the Secretary of the Department is of the opinion that
an unclassified film or an unclassified computer game, would likely be classified RC, then
the Secretary may provide a copy of this material to:
(a) the Australian Federal Police; or
(b) the police force of a State or Territory; or
(c) an authority or person responsible for law enforcement in a foreign country or part of
a foreign country.
Subsection 88B(2) will establish that the Secretary may delegate his or her power under
subsection (1) to a member of staff assisting the Board and the Review Board.
Subsection 88B(3) will establish that this section does not limit the power or the functions of
the Secretary, or his or her delegate, to provide other information or material to law
enforcement authorities or other bodies. That is, this provision will be included for clarity
only and will not limit any existing discretion the Department has to refer other types of
material to law enforcement authorities. For example, the Department may also refer
material to law enforcement authorities if the material is likely to be classified X 18+ and is
available for sale in the States, or is classified RC and is available for sale.
18
This provision is also not intended to interfere with existing State and Territory legislation
concerning whether content must be classified prior to the commencement of legal
proceedings.
19
SCHEDULE 3--EXEMPTIONS
Classification (Publications, Films and Computer Games) Act 1995
Brief Outline
Schedule 3 will broaden some of the existing exempt film categories; establish additional
exempt film categories for certain films covering natural history and the social sciences; and
create exemptions that allow for unclassified content to be screened or demonstrated at
festivals or special events by festival operators or cultural institutions. The overall purpose of
this reform is to allow for more streamlined and less legally complex arrangements for
content that is exempt from classification under the Classification Act.
Part 1--Exempt films etc.
Section 5B of the Classification Act sets out in two separate tables the different categories of
films and computer games that are exempt from classification. The amendments contained in
this Part will broaden the parameters of the existing categories for exempt films and add
categories to the existing list of exempt film categories.
Item 1 - section 5 (meaning of social sciences)
Item 1 will amend existing section 5 to state that social sciences` has the meaning given by
section 5C.
Item 2 - subsection 5B(1) (table items 6-13)
Item 2 will amend the table in existing subsection 5B(1) to expand the exempt film categories
for: current affairs; hobbyist; sporting; family; live performance; musical presentation;
religious and community or cultural; so that the exempt film content may wholly or mainly`
comprise that specified genre. Currently, films must wholly comprise these genres to be
exempt from classification. The intention of this amendment is to accommodate a greater
range of contemporary content which is appropriate to exempt under the Classification Act.
Item 3 - subsection 5B(1) (at the end of the table)
Item 3 will amend the table in existing subsection 5B(1) to add two new exempt film
categories, social sciences` and natural history`.
A film which wholly or mainly comprises information about, or analysis of, subjects relating
to social sciences will be exempt from classification under the Classification Act. Social
sciences will have the limited meaning given by new section 5C.
A natural history film, or any film depicting wholly or mainly natural scenery, will also be
exempt from classification under the Classification Act. The intention of this new exempt
film category is to limit it to films which are not dramatic or fictional works and which
20
concern natural history or depict wholly or mainly natural scenery. Examples of the types of
films that would be exempt under this category include:
A film which mainly analyses natural history without using actual footage of nature;
or
A film that wholly comprises depictions of blooming flowers accompanied by music.
Item 4 - section 5C
Item 4 will insert new section 5C which will establish the meaning of social sciences` for the
purposes of the social sciences` exemption category under amended subsection 5B(1).
New section 5C will state that social sciences` means: economics; geography; anthropology;
linguistics; and any other fields that are specified in a legislative instrument. The list
encompasses a broad range of fields but is exhaustive in order to exclude fringe elements,
such as the occult or astrology. A legislative instrument making power is necessary to
prescribe additional fields of social sciences which may develop or have been unintentionally
omitted from section 5C.
Part 2--Certificates for exempt films and computer games
Applications for classification of exempt films and computer games are not necessary as this
exemption process operates on a self-assessment basis. Existing Division 6 of Part 2 of the
Classification Act provides for certificates for exempt films and computer games and sets out
the requirements for an application. The Classification Act will be amended to remove all
existing provisions concerning applications for certification that a film or computer game is
exempt under existing section 5B. The effect of these amendments is that publishers will no
longer be able to apply for a certificate that an unclassified film or unclassified computer
game is exempt. Publishers can, however, apply for classification of such unclassified films
or computer games.
Item 5 - section 5 (paragraph (j) of the definition of decision)
Item 5 is a minor amendment that will account for the fact that paragraphs (k) and (l) of the
definition of decision will be repealed from existing section 5.
Item 6- section 5 (paragraphs (k) and (l) of the definition of decision)
Item 6 is a consequential amendment that will repeal paragraphs (k) and (l) of the definition
of decision` in existing section 5. This is because Division 6 of Part 2 (Certificates for
exempt films and computer games) will be repealed.
Item 7 - section 5 (definition of exempt computer game)
Item 7 is a consequential amendment that will amend the definition of exempt computer
game` in existing section 5 to remove the reference to certificates granted under Division 6 of
21
Part 2. This is because Division 6 of Part 2 (Certificates for exempt films and computer
games) will be repealed.
Item 8 - section 5 (definition of exempt film)
Item 8 is a consequential amendment that will amend the definition of exempt film` in
existing section 5 to remove the reference to certificates granted under Division 6 of Part 2.
This is because Division 6 of Part 2 (Certificates for exempt films and computer games) will
be repealed in this Schedule.
Item 9 - subsection 8(4)
Item 9 is a consequential amendment that will repeal existing subsection 8(4). This is
because Division 6 of Part 2 of the Act (Certificates for exempt films and computer games)
will be repealed and the markings determination (made under section 8) will no longer need
to specify the markings for a film or computer game that has been granted a certificate under
that Division.
Item 10 - Division 6 of Part 2
Item 10 will repeal this Division. The effect of this amendment will be that an applicant will
no longer be able to apply for a certificate that an unclassified film or unclassified computer
game is exempt from classification.
Item 11 - Applications for certificates for exempt films or computer games
Item 11 is a transitional provision that will specify that if, before the repeal of Division 6 of
Part 2:
a person applies for a certificate that an unclassified film or unclassified computer
game is exempt from classification; and
the person has paid the relevant fee; and
the Board has not made a decision on the application before this item commences;
the application will be taken to have never been made and the Director must refund the fee to
the applicant.
Part 3--Conditional cultural exemptions
The amendments contained in this Part will simplify exemption arrangements for festivals,
events and cultural institutions by establishing a consolidated set of rules in the Classification
Act and replacing the inconsistent provisions that are currently set out in each State and
Territory`s classification legislation. The requirement to apply to the Director for a formal
exemption will be removed and, instead, exemptions will continue to be available to support
the arts and cultural sector but on a self-assessed, deregulated basis.
Safeguards that are similar to those currently in place for festivals will ensure that the public
is being protected--particularly children. For example, exemption conditions will include
22
restrictions on the screening, exhibition or demonstration of unclassified content to particular
age-groups if it is moderate, strong or high in impact; require that patrons be provided with
warnings about the content that they are about to see; and prohibit content likely to be X 18+
or RC.
Item 12 - section 5 (paragraph (da) of the definition of advertisement)
Item 12 will insert a new paragraph 5(da) after paragraph 5(d) in the list of what is excluded
from the definition of advertisement`. The new paragraph will stipulate that an
advertisement for a particular demonstration, exhibition or screening of a publication, film or
computer game that is subject to conditional cultural exemption` will not be an
advertisement for the purposes of the Classification Act. For example, if a screening of a
film is subject to a conditional cultural exemption, then advertising for the film (insofar as it
is in connection with the screening) will not be subject to the requirements relating to
advertisements under the Classification Act.
Item 13 - section 5
Item 13 will insert new definitions in existing section 5 of the Classification Act for
approved cultural institution` and conditional cultural exemption rules`.
An organisation will be an approved cultural institution if it meets the criteria established in
new section 6F. For example, an approved cultural institution could include an art gallery or
a museum.
The conditional cultural exemption rules will be the rules made by the Minister, in a
legislative instrument, under new section 6G. These rules will prescribe additional conditions
(if any) that approved cultural institutions and registered events must satisfy in order to use
conditional cultural exemptions for the demonstration, exhibition or screening of
publications, film or computer games.
Items 14 and 15 - section 5 (definition of exempt computer game and exempt film)
Items 14 and 15 are consequential amendments that will amend the definitions of exempt
computer game` and exempt film` in existing section 5 to replace the references to section
5B with references to new section 6B. This is because existing section 5B will be amended
and renumbered to become new section 6B.
Item 16 - section 5
Item 16 will insert new definitions in existing section 5 of the Classification Act for
government body`, registered event` and subject to a conditional cultural exemption`.
A government body` is defined to mean a local government body or a department, agency or
authority of a Commonwealth, State or Territory. This will include certain statutory bodies
that are established for the purposes of local government, or are agencies or authorities of the
Commonwealth, a State or Territory.
23
An event will be a registered event` for the purposes of the Classification Act if it meets the
criteria established in new section 6D.
A publication, film or computer game will be subject to a conditional cultural exemption` if
it meets the criteria established in new section 6C or 6E. A conditional cultural exemption`
will only apply in relation to the particular showing of the publication, film or computer
game. It is not a general exemption that will apply to all showings of the publication, film or
computer game.
Item 17 - section 5B
Item 17 will repeal existing section 5B. The provision will be reinserted (as amended) as
new section 6B. The purpose of this amendment is to group together the provisions relating
to content that is exempt from classification.
Item 18 - Part 1A
Item 18 will insert new Part 1A before Part 1 of the Classification Act. This Part will
comprise Divisions 1 and 2, which will establish categories for films and computer games
that are exempt from classification, and determine when publications, films and computer
games are subject to a conditional cultural exemption.
Division 1--Exempt films and exempt computer games
Division 1 will comprise new section 6B, which will replace section 5B and establish the
categories for exempt films and exempt computer games. Section 6B will incorporate section
5B as amended by items 2, 3 and 4 of this Schedule.
Division 2--Conditional cultural exemptions
Division 2 will comprise new sections 6C, 6D, 6E, 6F, 6G and 6H which will establish a
scheme for determining when publications, films and computer games are subject to a
conditional cultural exemption.
New section 6C will establish when a conditional cultural exemption will apply for a
screening, demonstration or exhibition (the showing) of material that forms part of a
registered event. A conditional cultural exemption` will apply if:
the showing forms part of a registered event;
the material would not likely be classified RC, X 18+ or Category 2 restricted;
relevant age restrictions are imposed for the showing;
the material has not already been demonstrated, exhibited or screened more than a
specified number of times;
a warning about the content is given to those present at the showing; and
the showing satisfies the relevant conditions (if any) contained in the conditional
cultural exemption rules.
24
A conditional cultural exemption` only applies in relation to the particular showing of the
publication, film or computer game. That is, a conditional cultural exemption is not a general
exemption that will apply to all showings of the publication, film or computer game. For
example, a particular screening of a film may be subject to a conditional cultural exemption
whilst another screening of the same film may not. This will be distinct from the current
exemption arrangements under existing section 5B, which provide that certain films and
computer games are exempt from classification requirements entirely.
In addition, a breach of an applicable condition will cause the relevant showing not to be
subject to a conditional cultural exemption. For example, if a relevant showing does not
impose the applicable age restrictions--the showing will not be subject to a conditional
cultural exemption even if it is part of a registered event and meets all other conditions. For
the avoidance of doubt, a publication, film or computer game that is not subject to a
conditional cultural exemption and is not classified will be an unclassified publication, film
or computer game.
New section 6D will establish the criteria for when an event is a registered event`.
Paragraph 6D(a) will specify that the event must involve or relate to the display, screening,
demonstration or exhibition of films, computer games and/or publications. Events including
trade shows, film festivals and mixed media events may be able to satisfy this requirement.
Paragraph 6D(b) will state that these films, computer games and/or publications must be of a
medical, scientific, educational, cultural or artistic character. This will permit a broad range
of material to be displayed, screened, demonstrated or exhibited as part of a registered event.
Paragraphs 6D(c) and (d) will require the organisation that has organised the event to
complete the prescribed registration process and pay the relevant fee (if any).
Paragraph 6D(e) will mandate that any additional conditions specified by the conditional
cultural rules must be satisfied.
New section 6E will establish when a conditional cultural exemption for the screening
demonstration or exhibition (the showing) of material will apply to an approved cultural
institution. A conditional cultural exemption` will apply if:
the showing forms part of an event organised by an approved cultural institution;
the material would not likely be classified RC, X 18+ or Category 2 restricted;
relevant age restrictions are imposed for the showing;
a warning about the content is given to those present at the showing; and
the showing satisfies the relevant conditions (if any) contained in the conditional
cultural exemption rules.
Under new section 6E, approved cultural institutions will not be required to register
individual exhibits or be subject to the same limitations (such as the duration of an exhibition
or the number of times unclassified content may be screened, displayed or demonstrated as
part of an exhibition) that are imposed on registered events. Otherwise, section 6E is drafted
25
in consistent terms with new section 6C, which is discussed above. That is, the conditional
cultural exemption relates only to a particular showing of relevant material and not to the
material generally, and any breach of conditions will cause the showing not to be subject to a
conditional cultural exemption.
New section 6F will establish the criteria for when an organisation is an approved cultural
institution`. Paragraphs 6F(1)(a), (b) and (c) will stipulate that an organisation is an approved
cultural institution if the organisation was formed to conduct activities of an educational,
cultural or artistic nature, continues to conduct such activities and has a sound reputation in
relation to conducting such activities. This will ensure that art galleries, museums and other
cultural institutions that have a sound reputation will be approved cultural institutions for the
purposes of the Classification Act.
Paragraph 6F(1)(d) will prevent cultural institutions from becoming approved cultural
institutions if they demonstrate, exhibit or screen unclassified publications, films or computer
games that would likely be classified RC, X 18+ or Category 2 restricted.
Paragraphs 6F(1)(e)-(g) will stipulate that an organisation must have completed the relevant
training, paid the fee (if any) and satisfied any additional conditions specified by the
conditional cultural rules.
Subsection 6F(2) will specify that certain government bodies will be approved cultural
institutions. The government body must not demonstrate, exhibit or screen unclassified
publications, films or computer games that would likely be classified RC, X 18+ or Category
2 restricted. In addition, the government body must complete relevant training, pay the fee (if
any) and satisfy any additional conditions specified in the conditional cultural rules. It is
intended that activities staged under the auspices of a local council or a major cultural event
that is organised by government will be captured under new section 6F.
New section 6G will enable the Minister, by legislative instrument, to make rules or
conditions that a registered event or an approved cultural institution must satisfy in order to
be subject to a conditional cultural exemption.
New section 6H will give a power to the Director to waive or vary provisions that apply in
relation to conditional cultural exemptions. Subsection 6H(1) will allow the Director to:
exempt material, an event or an organisation from any or all provisions in new Division 2 of
Part 1A or in the conditional cultural exemption rules; or declare that any or all provisions in
Division 2 of Part 1A or in the conditional cultural exemption rules apply (subject to any
variations) in relation to material, an event or an organisation.
Providing the Director with the ability to make declarations or exemptions is appropriate due
to the varied and evolving nature of events for which one set of general conditions will not be
appropriate. For example, a declaration made by the Director may notify an organisation that
the condition in relation to the maximum number of times a certain film can be screened, has
26
been waived for a registered event. In some cases, the Director may also impose other
conditions in relation to a registered event or approved cultural institution.
Subsection 6H(2) will specify that the Director may only act under subsection 6H(1) on
application by the relevant organisation. Subsection 6H(3) will provide that an application
must be in a form approved by the Director and be accompanied by the prescribed fee (if
any).
Subsection 6H(4) will provide that the exemption or declaration made by the Director under
subsection 6H(1) must be in writing and is not a legislative instrument for the purposes of the
LIA. The policy intention is that such declarations or exemptions (which are primarily
administrative but also legislative in character) should be exempt from the requirements of
the LIA. It is not necessary or appropriate for exemptions or declarations under subsection
(1) to be subject to the requirements of the LIA for the following reasons:
An exemption or declaration may only be granted on application and has effect in
relation to a particular publication, film, computer game, event or organisation. That
is, the exemption or declaration applies in relation to a particular item, event or
organisation only.
An exemption or declaration will generally be valid for a short period of time only.
For example, an exemption or declaration will often apply to a particular showing or
an event with a limited duration (generally a number of days). It is not appropriate
that such declarations or exemptions be subject to the disallowance provisions
(contained in Part 5 of the LIA) or sunsetting provisions (contained in Part 6 of the
LIA).
An exemption or declaration will be made on an ad hoc basis, is of a minor nature and
needs to be able to efficiently respond to the needs of the applicant. If the procedures
relating to legislative instruments were to be followed, this provision would require
applications for exemptions or declarations to be made very far in advance.
Consultation prior to making an exemption or declaration is not necessary (in
accordance with section 18 of the LIA).
No public purpose is served by requiring that an exemption or declaration be
published. The only person with an interest in an exemption or declaration is the
applicant. It would create an undue cost and administrative burden and be inefficient
to require declarations or exemptions to be registered on the Federal Register of
Legislative Instruments (as required under section 24 of the LIA).
Requiring compliance with the LIA would also conflict with the deregulation policy
objectives upon which the new Division 2 is based.
A decision by the Director under subsection 6H(1) will, in accordance with
administrative law principles, be reviewable by the Administrative Appeals Tribunal.
Subsection 6H(5) enables the Director, by legislative instrument, to exempt a specified class
of material, events or organisations from any or all provisions in new Division 2 of Part 1A or
in the conditional cultural exemption rules; or declare that any or all provisions in Division 2
27
of Part 1A or in the conditional cultural exemption rules apply (subject to any variations) in
relation to a specified class of material, events or organisations. In contrast to decisions made
under subsection (1), it is appropriate for such declarations or exemptions to be subject to the
LIA because they affect the rights of more persons, they do not need to be responsive to the
demands of applicants and there may be greater public interest in their publication.
Subsection 6H(6) will establish that a decision made by the Director in respect of an
application for an exemption or declaration made under subsection 6H(1) is subject to review
by the Administrative Appeals Tribunal.
Item 19 - paragraph 23(1)(c)
Item 19 will insert new paragraph 23(1)(c) after paragraph 23(1)(b) to establish that the
Director cannot call in a publication in the Australian Capital Territory if the publication is
subject to a conditional cultural exemption in relation to the exhibition, demonstration or
display of that particular publication.
Item 20 - paragraph 23A(1)(c)
Item 20 will insert new paragraph 23A(1)(c) after paragraph 23A(1)(b) to establish that the
Director cannot call in a film in the Australian Capital Territory if the film is subject to a
conditional cultural exemption in relation to the exhibition, demonstration, screening or
display of that particular film.
Item 21 - paragraph 24(1)(c)
Item 21 will insert new paragraph 24(1)(c) after paragraph 24(1)(b) to establish that the
Director cannot call in a computer game in the Australian Capital Territory if the computer
game is subject to a conditional cultural exemption in relation to the exhibition,
demonstration, screening or display of that particular computer game.
Item 22 - subparagraph 53(b)(i)
Item 22 will repeal subparagraph 53(b)(i). This will mean that the Director will no longer be
able to exercise powers under State and Territory laws in relation to the granting of
exemptions relating publications, films or computer games, or the approval of organisations
in relation to films or computer games. The repeal of this subparagraph is a consequential
amendment as a result of the new provisions relating to conditional cultural exemptions in
Part 3 of this Schedule.
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SCHEDULE 4--MODIFICATIONS
Brief Outline
Schedule 4 will amend the Classification Act to improve the clarity of certain provisions,
address legislative anomalies and specify that certain modified versions of content will not
need to be separately classified by the Board.
Part 1--Amendments
Classification (Publications, Films and Computer Games) Act 1995
Item 1 - section 20A
Item 1 will insert new section 20A after section 20 to address a legislative anomaly relating to
modified content being treated differently under the Classification Act depending on whether
the modification is made before or after the content is classified.
Currently, section 21 states that a classified film or classified computer game becomes
unclassified when a modification is made to it, unless the modification is of a kind listed as
an exception to this modifications rule`. The existing exceptions to the modifications rule
include, among other things, the addition or removal of navigation functions (such as a menu
screen) for a classified film. A gap arises because section 21 only deals with modifications
made to classified films and classified computer games, and not with modifications made
before films or computer games are classified.
New section 20A will seek to address this legislative anomaly and expand the modifications
rule. Subsection 20A(1) will specify that if an unclassified film or unclassified computer
game is modified, and the film or computer game is thereafter classified in unmodified form,
the modified version will be taken to have the same classification as the unmodified
version--provided that the modification is covered by subsection (2). That is, if a film or
computer game is modified in specified ways and is then classified in unmodified form at a
later time, both the modified and unmodified forms of the film or computer game have the
same classification from that time.
Subsection 20A(2) will enumerate particular kinds of modifications as well as reproduce
some of the modifications that are listed in existing subsection 21(2) (such as the addition or
removal of navigation functions).
A new modification that will be listed in paragraph 20A(2)(d) is a format change from 2D to
3D (or vice versa) as long as the format change would not be likely to cause the modified
film or modified computer game to be given a different classification to the unmodified film
or unmodified computer game. This will improve the current situation, which requires 2D
and 3D films or computer games to be separately classified. Almost invariably, 2D and 3D
films or computer games are produced simultaneously prior to classification and are given
the same classification by the Board. This type of modified material is very low risk and,
29
rather than being separately classified, should be deemed to have the same classification as
the unmodified material.
A format change from 2D to 3D (or vice versa) that would be likely to cause the film to be
given a different classification will cause the film to remain unclassified.
Paragraph 20A(2)(e) will enable the Minister to specify, using a legislative instrument,
additional kinds of modifications which will be covered by subsection (2). With
technological advances and rapid changes to the kinds of modifications which are made to
films and computer games, it is appropriate to include a power to make a legislative
instrument for this purpose. The power to make a legislative instrument will be necessary to
ensure that the classification scheme is able to respond quickly and deal effectively with
rapidly-evolving technology and delivery mechanisms.
Examples of the operation of subsections 20A(1) and (2) include:
1) If an unclassified film is modified by adding a DVD menu screen and thereafter the
film (without a menu screen) is classified by the Board--the film, with the DVD
menu screen, is taken to have the same classification as the film classified by the
Board.
2) If two unclassified versions of a film, a 3D version and a 2D version, are produced
simultaneously and the 3D version is thereafter classified--the 2D version is taken to
have the same classification as the 3D version provided that it is unlikely to be given
a different classification because of the modification.
Item 2 - subsection 21(1)
Item 2 will amend existing subsection 21(1) to clarify that the content that becomes
unclassified when a modification is made is the modified film or modified computer game
and not the unmodified film or unmodified computer game.
Item 3 - paragraph 21(2)(ba)
Currently, section 21 states that a classified film or classified computer game will become
unclassified when a modification is made to it (that is, the modified film or game becomes
unclassified), unless the modification is of a kind listed as an exception to this modifications
rule` under existing subsection 21(2). The existing exceptions to the modifications rule
include, among other things, the addition or removal of navigation functions (such as a menu
screen) for a classified film.
Item 3 will insert new paragraph 21(2)(ba) after paragraph 21(2)(b) to include a format
change from 2D to 3D (or vice versa) if the format change would not be likely to cause the
modified film or modified computer game to be given a different classification to the
classified unmodified film or classified unmodified computer game.
30
This will improve the current situation, which requires 2D and 3D films or computer games
to be separately classified. Sometimes, a 3D version of a 2D film is created after the 2D film
has been classified (or vice versa). In these circumstances, the Board almost invariably gives
the modified film the same classification as the unmodified film. Hence, the modified
material is very low risk and should not become declassified when the modification is made.
The risk will be mitigated by the inclusion of the condition that the modification must not be
likely to cause the modified film or computer game to be classified differently to the
unmodified film or computer game.
The new paragraph will ease the administrative and cost burden on industry whilst ensuring
that the public continues to receive correct and relevant classification information.
Examples of the operation of the new paragraph 21(2)(ba) include:
1) If a 3D version of a film is classified and thereafter the film is modified to produce a
2D version--the 2D version of the film remains classified provided that it is unlikely
to be given a different classification because of the modification.
2) If a 2D version of a film is classified and thereafter the film is modified to produce a
3D version, but the modification is likely to cause the 3D film to be given a different
classification to the 2D film--the 3D version of the film becomes unclassified.
The paragraph is consistent with new paragraph 20A(2)(d), which is explained under item 1
above.
Item 4 - subsection 21(3)
Item 4 will insert new subsection 21(3) to enable the Minister to specify, using a legislative
instrument, additional kinds of modifications which are exceptions to the rule that classified
films or computer games, as modified, become unclassified when a modification is made.
With technological advances and rapid changes to the kinds of modifications which are made
to films and computer games, it is appropriate to include a power to make a legislative
instrument for this purpose. In particular, computer games are becoming increasingly mutable
and it is both unfeasible and unnecessary to require the vast amount of (low risk) modified
content to be classified separately by the Board. For example, a computer game modified by
including additional costumes should not require classification separately to the unmodified
computer game--provided that the additional costumes would not cause the modified game
to be given a different classification to the unmodified game. The power to make a legislative
instrument will be necessary to ensure that the Classification Act is equipped to deal with
rapidly-evolving technology and delivery mechanisms.
The paragraph is consistent with new paragraph 20A(2)(e), which is explained under item 1
above.
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Item 5 - paragraph 22CF(2)(a)
Item 5 will amend new paragraph 22CF(2)(a) to ensure that new section 20A applies to
decisions made by approved classification tools. This is appropriate since content classified
by approved classification tools should be subject to the same rules regarding modifications
as content classified by the Board.
Part 2--Application of amendments
Item 6 - Amendments relating to modifications
Subitem (1) of item 6 will specify that new section 20A will apply only to content classified
on or after 1 January 2013 irrespective of when the content was modified. Subitem (2) will
specify that amended section 21 will apply only to content classified on or after 1 January
2013.
Examples include:
1) If, in 2012, two unclassified versions of a film, a 3D version and a 2D version, were
produced simultaneously and the 3D version was thereafter classified on 1 January
2013--the 2D version is taken to have the same classification as the 3D version
provided that it is unlikely to be given a different classification because of the
modification. New section 20A will apply in relation to the modified film because the
unmodified film was classified on or after 1 January 2013.
2) If, in 2014, a 3D version of a film is produced by modifying a 2D film that was
classified in 1994--the 3D version will become unclassified even if it would be given
the same classification as the 2D version. The existing section 21 (rather than the
amended section 21) will apply in relation to the modified film because the original
film was classified before 1 January 2013.
These application provisions will further diminish the risk that the classification of modified
content would be different to the classification of unmodified content. That is, the
classification of older content that is modified is more likely to change because of
fluctuations in community standards or changes to the classification guidelines. The current
Guidelines for the Classification of Computer Games 2012 and Guidelines for the
Classification of Films 2012 commenced on 1 January 2013.
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SCHEDULE 5--DETERMINED MARKINGS AND CONSUMER
ADVICE
Classification (Publications, Films and Computer Games) Act 1995
Brief Outline
Schedule 5 will specify that the Minister may determine high level principles relating to
classification markings as well as the display of those markings and consumer advice. The
schedule will include the requirement to display markings and consumer advice in
accordance with the determination. It will also make it mandatory for the Board to provide
consumer advice at the G classification.
Item 1 - section 5
Item 1 is a consequential amendment that will amend section 5 to include in the definition of
determined markings` a reference to new paragraph 8(1)(a).
Item 2 - section 8
Item 2 will change the heading of section 8 to Determined markings and consumer advice`.
Item 3 - subsections 8(1), (1A) and (1B)
Item 3 will repeal existing subsections 8(1) and (1A) and insert new subsections 8(1), (1A)
and (1B) to empower the Minister to determine classification markings and principles relating
to the display of those markings and consumer advice.
New subsection 8(1) will specify that the Minister may, by legislative instrument, determine:
markings related to the classification categories; principles for the display of those markings;
and principles for the display of consumer advice. New subsections 8(1A) and (1B) will
clarify that the principles may also deal with the manner in which markings and consumer
advice is displayed. The intention is that a legislative instrument will be created that includes
high level principles for the display of classification markings and consumer advice. The
new determination will replace the current rules relating to the display of classification
markings, which are highly detailed and prescriptive.
Item 4 - subsections 8(3A) and (3B)
Item 4 will insert new subsections 8(3A) and (3B) after subsection 8(3) to reinforce the
requirement (in State and Territory legislation) to display markings and consumer advice in
accordance with the relevant principles.
New subsection 8(3A) will stipulate that classified films, computer games and publications as
well as advertisements for those products must display markings and consumer advice in
accordance with the principles determined by the Minister under new subsection 8(1). A note
at the end of the subsection will make it clear that the consequences of not displaying
33
markings and consumer advice correctly are to be found in complementary State and
Territory legislation. Subsection 8(3B) has been included to give subsection (3A) extended
Constitutional reach, so that it applies beyond the Australian Capital Territory. These
provisions are not intended to exclude or limit the concurrent operation of State and Territory
offence provisions that impose requirements relating to the display of markings and consumer
advice.
Item 5 - paragraphs 20(1)(a) and (b)
Item 5 will amend existing paragraphs 20(1)(a) and (b) to require the Board to determine
consumer advice in relation to films or computer games that are classified G. This is
appropriate because parents and guardians value additional classification information in
relation to what their children see and play.
Item 6 - subsection 20(2)
Item 6 will repeal existing subsection 20(2) and insert new subsection 20(2) which provides
that the Board may determine consumer advice in relation to publications that are classified
Unrestricted. This is a consequential amendment which will remove the reference to the G
classification from this subsection.
Item 7 - paragraph 25(2)(b)
Item 7 will amend existing paragraph 25(2)(b) so that it states that a classification certificate
must include the consumer advice` for a film or computer game. This is a consequential
amendment because new paragraphs 20(1)(a) and (b) will mean that consumer advice will
always be determined for films and computer games (except for films and computer games
that are classified RC).
Item 8 - Amendments relating to consumer advice
Item 8 will stipulate that the amendments of sections 20 and 25 will apply to publications,
films and computer games classified after the commencement of this item even if the
application for classification is made before commencement. For example, if an application
for the classification of a computer game is made before this item commences and, after
commencement, the Board classifies the game G--the Board must determine consumer
advice for the game because new paragraph 20(1)(b) will apply.
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SCHEDULE 6--OTHER AMENDMENTS
Brief Outline
Schedule 6 will amend the Classification Act to improve the clarity of certain provisions,
address legislative anomalies and enhance the administrative efficiency of the National
Classification Scheme. Consequential amendments are also to be made to the BSA.
Schedule 6 also contains application and saving provisions.
Part 1--Amendments to the Classification Act
Classification (Publications, Films and Computer Games) Act 1995
Item 1 - section 3
Item 1 will amend existing section 3 to clarify that the main, but not the only, purpose of the
Classification Act is to provide for the classification of publications, films and computer
games for the Australian Capital Territory.
Item 2 - section 5
Item 2 will amend existing section 5 to include definitions of constitutional corporation` and
constitutional trade or commerce`. These definitions will be included to assist with
understanding the extended Constitutional reach provisions, such as subsection 8AA(5).
Item 3 - section 5 (definition of decision)
Item 3 will amend the existing definition of decision` in existing section 5 to include a
decision to revoke the classification of a computer game under new section 21AC. This will
make a decision under section 21AC reviewable by the Review Board under existing section
42.
Item 4 - section 8AA
Item 4 will insert new section 8AA after section 8 which will make it an offence to use
determined markings, in trade or commerce, in relation to goods and services (except for
certain goods and services). The section is intended to create offences for unauthorised
commercial use of determined markings while leaving State and Territory legislation to
regulate misleading use of determined markings.
Under subsection 8AA(1), a person will commit an offence if the person, in trade or
commerce, uses a determined marking in relation to goods unless the goods are: a
publication, film or computer game; or goods used to promote a publication, film or computer
game that has the classification for that marking. For example, a person will commit an
offence if the person uses a determined marking on tangible goods, such as pyjamas or a car,
for the purpose of selling those goods. A person will also be guilty of an offence if the
person uses a determined marking in advertising for those goods.
35
This subsection does not intend to make it an offence to use determined markings other than
in trade or commerce, such as in a newspaper headline, a journal article, an academic article
or an information pamphlet. It will also not be an offence under this subsection to use a
determined marking in a misleading way in relation to a publication, film or computer game
(State and Territory classification enforcement legislation prescribes offences in relation to
the misleading use of determined markings). For example, applying the determined marking
for the M classification to the case of an unclassified DVD will not be in breach of this
subsection. Furthermore, goods that are promotional products or merchandise related to
publications, films or computer games will not be caught by this offence. For example, a
figurine promoting a PG-classified film will not be prevented by this subsection from
carrying the determined marking for the PG classification.
A person will commit an offence under subsection 8AA(2) if the person, in trade or
commerce, uses a marking in relation to a service that is not for the purposes of the
classification system. For example, a person that uses the determined marking for the R 18+
classification to advertise an adults-only service will be guilty of an offence; however, a
person that uses a determined marking to advertise that they are authorised under the
Classification Act to make classification assessments will not.
A person will commit an offence under subsection 8AA(3) if a determined marking is used in
relation to goods (and the goods are not a publication, film or computer game or used to
promote a publication, film or computer game that has the classification for that marking),
and a person imports, sells, offers for sale or lets on hire those goods. For example, a person
who imports into Australia goods which have determined markings applied to them will be
guilty of an offence even if the person importing the goods did not apply the determined
markings.
Subsection 8AA(4) will extend the meaning of a determined marking, for the purposes of
section 8AA, to include a marking which so closely resembles a determined marking as to be
likely to be mistaken for it. The extended definition is intended to prevent the use, in trade or
commerce, of subtly changed determined markings.
Subsection 8AA(5) provides that the section will have extended Constitutional reach. The
section will operate in the States and Territories but it is not intended to interfere with or
displace State and Territory legislation in relation to the misleading use of markings.
Item 5 - subsection 14(4A)
Item 5 will insert new subsection 14(4A) after subsection 14(4) to not require particulars of
contentious material (contentious material statements) to be submitted with an application for
classification of a film that has become declassified only because of a change of title. This
provision will only affect films that comprise a recording from which a computer generated
image can be produced which enables a person to choose from two or more visual images (an
interactive film).
36
Currently, if the title of an interactive film is changed, the interactive film becomes
unclassified because of the operation of section 21. Except for the change of title, the
interactive film is identical to the classified interactive film--making the submission of a
contentious material statement redundant. The new subsection will state that an application
for classification of such a film will no longer need to provide a contentious material
statement (that is, particulars of content that would cause the film to be classified M or
higher).
Items 6 and 7 - subsections 14(7) and 14(8)
Items 6 and 7 will amend existing subsection 14(7) and insert new subsection 14(8) to
improve administrative efficiency for the Director or the Board when providing notices of
disagreement to assessors of additional content.
Currently, subsection 14(5) of the Classification Act provides that an application for a film
that comprises classified and/or exempt films and additional content may be accompanied by,
among other things, a classification recommendation for the additional content prepared by a
person authorised under the Classification Act (an additional content assessor).
The amended subsection 14(7) will require that, if the Director or the Board disagrees with
the classification recommendation submitted by the additional content assessor, the Director
must provide notice to the applicant giving reasons for the disagreement. This will remove
the requirement that, in the event of a disagreement, the Director must give the applicant 14
days in which to make additional submissions to the Board prior to the Board making a
decision on the film.
New subsection 14(8) will state that the Director need only invite the applicant to make
(within 14 days of receiving the notice of disagreement) additional submissions to the Board
prior to the Board making a decision if: the additional content would cause the film to be
classified higher than the highest-classified film which the film contains; or the film does not
include a classified film. That is, the Director is required to invite additional submissions
from the applicant only if the overall classification of the film (as opposed to the additional
content) is going to change, or if the film does not contain a classified film.
If the disagreement does not result in a change to the overall classification of the film, it is
unnecessary and inefficient for the Director to invite additional submissions from the
applicant, whose rights in relation to the film are not affected.
For example, an application is made for the classification of a film that comprises: a film
classified PG; a film classified M; and additional content. The assessor recommends a PG
classification for the additional content. However, the Director or the Board disagrees with
this recommendation because they are of the opinion that the additional content should be
classified M. In this instance, the Director will not be required to invite additional
submissions because, even though there is a disagreement about the assessor`s
37
recommendation, the overall classification of the film (comprising two classified films and
additional content) will remain the same. That is, the film will be classified M.
Items 8 and 9 - paragraph 14B(1)(c) and subsection 14B(1A)
Items 8 and 9 will amend existing paragraph 14B(1)(c) and insert new subsection 14B(1A) to
streamline one of the requirements for validity of applications for the classification of
assessed television series films.
Under section 14B of the Classification Act, applicants for the classification of a television
series film may submit with the application an assessment of the television series film made
by an authorised assessor. Presently, for such an application to be valid, at least one of the
episodes of the television series film must have been broadcast in Australia (on a national,
commercial, subscription or community broadcasting service) prior to the making of the
application for classification.
The amendment to paragraph 14B(1)(c) and the insertion of subsection 14B(1A) will specify
that an application for classification of an assessed television series film will be valid if at
least one episode of the television series (rather than the television series film) has been
broadcast in Australia prior to the making of the application. That is, the episode that has
been broadcast does not need to be included in the television series film that has been
submitted for classification but must be part of the television series. It is not sufficient,
however, for episodes of a closely-related or similarly-branded television series to have been
broadcast.
Examples include:
1) An application is made for the classification of an assessed television series film
comprising episodes six to ten of season two of a television series. However, only
episode one of season two of the television series has been broadcast in Australia on a
commercial broadcasting service. The application is valid.
2) An application is made for the classification of an assessed television series film
comprising episodes six to ten of season two of a television series. However, only
season one of the television series has been broadcast in Australia on a national
broadcasting service. The application is valid.
3) An application is made for the classification of an assessed television series film
comprising episodes one to six of season one of a television series. The television
series is a spin-off` of another television series, which has been broadcast in its
entirety in Australia on a national broadcasting service. However, no episodes of the
television series have been broadcast in Australia. The application is not valid.
38
Item 10 - subsection 17(2AA)
Item 10 will insert new subsection 17(2AA) after subsection 17(2) to not require particulars
of contentious material to be submitted with an application for classification of a computer
game that has become unclassified only because of a change of title.
If a classified computer game`s title is changed, the computer game becomes unclassified
because of the operation of section 21. Except for the change of title, the computer game is
identical to the classified computer game--making the submission of particulars of
contentious material redundant. The new subsection will state that an application for
classification of such a computer game will no longer need to provide details of contentious
material (that is, content that would cause the computer game to be classified M or higher).
The paragraph is consistent with new paragraph 14(4A), which is explained under item 5
above.
Item 11 - subsections 17(3) and 17(3A)
Item 11 will repeal subsection 17(3) and insert new subsections 17(3) and 17(3A) to make the
assessment of computer games consistent with the assessment of other material such as
additional content and television series films.
Subsection 17(3) as substituted will establish that if an applicant is of the opinion that a
computer game would be classified no higher than M (and the applicant has not been barred
from submitting assessments) the applicant may submit with the application: an assessment
of the computer game prepared by an authorised person; and a copy of any advertisement that
is proposed to be used to advertise the game.
New subsection 17(3A) will be inserted after subsection 17(3) to establish that an assessment
under subsection 17(3) must describe, and report on the impact of, any classifiable elements
in the game and recommend a classification and consumer advice for the game.
Item 12 - subsection 17(6)
Item 12 will insert subsection 17(6) to ensure that persons that are barred from assessing
computer games cannot be authorised to assess computer games.
Item 13 - sections 17A, 17B, 17C and 17D
Item 13 will insert new sections 17A, 17B, 17C and 17D to make the provisions relating to
the assessment of computer games by authorised persons generally consistent with the
provisions relating to the assessment of additional content in existing Division 2A of Part 2 of
the Classification Act. These changes will make the administration of the assessor schemes
more uniform, equitable and efficient.
39
New section 17A will give the Director express power to revoke the authorisation of a person
to assess computer games under subsection 17(3) if certain conditions are met. Additional
conditions may be prescribed by the Regulations, which may also prescribe circumstances in
which an assessment is taken to be misleading, incorrect or grossly inadequate. The new
provision is consistent with existing section 22E, which relates to revoking the authorisation
of assessors of additional content.
New section 17B will be inserted to provide that, if certain conditions are met, the Director
may bar assessors from submitting assessments for computer games under section 17(3). The
section will state that the barring period may not exceed three years from the date of the
barring notice. The new provision is consistent with existing section 22F, which relates to
barring assessors of additional content.
New section 17C will be inserted to provide that, if certain conditions are met, the Director
may bar an applicant from submitting classification applications accompanied by assessments
of computer games under section 17(3). An applicant for classification will generally be
different to the person authorised to make assessments, and therefore it is appropriate to have
the power to bar both the applicant and the authorised assessor. The section will state that the
barring period may not exceed three years from the date of the barring notice. The new
provision is consistent with existing section 22H, which relates to barring applicants from
submitting assessments of additional content.
New section 17D will make a decision by the Director under sections 17A, 17B and 17C
reviewable in the Administrative Appeals Tribunal. The new provision is consistent with
existing sections 22G and 22J.
Item 14 - section 21AC
Item 14 will insert new section 21AC to oblige the Board to revoke the classification of a
computer game if the classification is incorrect because of an assessment, submitted by an
authorised person under subsection 17(3), that: failed to bring relevant classifiable elements
to the Board`s attention; or assessed classifiable elements in a misleading, incorrect or grossly
inadequate manner. This is a safeguard that allows for the removal from the market of
incorrectly classified games. The new provision is consistent with existing sections 21AA
and 21AB.
Item 15 - section 38
Item 15 will repeal section 38 and insert new section 38 which will provide that the Board
must not reclassify a publication, film or computer game, or approve or refuse to approve an
advertisement, within the period of two years commencing on the day on which the decision
took effect.
Section 38 as substituted will clarify that the two year limit on reclassification is calculated
from the day on which written notice of the decision is given under section 26, or the day on
which the decision otherwise took effect as stipulated by the Classification Act.
40
Existing subsection 38(2) will also be repealed because it is an unnecessary provision. That
subsection states that the Board is not prevented from classifying a film or computer game
which has become unclassified because of the operation of section 21, or a film or computer
game whose classification has been revoked under section 21A. However, sections 21 and
21A both cause films or computer games to become unclassified and section 38 only
prohibits the reclassification of material that is classified. The references to sections 21 and
21A will therefore be omitted from section 38 as amended.
Items 16 and 17 - subsections 39(1) and 39(2)
Currently, the Board may reclassify material under section 39 at its own initiative or at the
request of the Minister. However, it is anomalous that the Board and the Minister are both
delegated this power as separate decision makers and this may present a conflict of interest.
Items 16 and 17 will make minor amendments to existing section 39 so that only the Minister
may initiate reclassification after the two year period referred to in section 38. This means
that the Board will no longer be able to initiate reclassification on its own initiative.
Amended subsection 39(1) will state that, after the two year period, the Minister may request
that the Board reclassifies a publication, film or computer game or reconsiders whether to
approve or refuse to approve an advertisement. Subsection 39(2), which stated that the Board
may reclassify on its own initiative or at the request of the Minister, will be repealed.
Items 18 and 19 - section 40
Items 18 and 19 will make consequential amendments to section 40 to account for the fact
that only the Minister may initiate reclassification. The amended heading of section 40, and
the substituted subsection 40(1), refer to a request`, rather than an intention`, to reclassify.
This is appropriate because the Board will no longer be able to initiate reclassification on its
own initiative.
Item 20 - subsection 46(c)
Item 20 will repeal subsection 46(c) to remove Senior Classifiers from the mandatory
constitution of the Board. That is, the Governor-General will not need to appoint Senior
Classifiers. Section 46 as amended will stipulate that the Board is to consist of a Director,
Deputy Director and other members.
Item 21 - subsection 48(1A)
Item 21 will insert new subsection 48(1A) after subsection 48(1) to empower the Governor-
General to appoint Senior Classifiers from ordinary members of the Board. This will mean
that Senior Classifiers may, rather than must, be appointed to the Board.
Senior Classifiers will be subject to the same rules (contained in sections 48 and 51 of the
Classification Act) which govern the appointment of other members on the Board. For
41
example, under subsection 51(3) of the Classification Act, a Senior Classifier will not be
permitted to hold office for a total of more than seven years.
Item 22 - subsection 49(1)
Item 22 will omit the reference to Senior Classifiers from subsection 49(1). This will mean
that Senior Classifiers will not need to be appointed as full-time members of the Board.
Item 23 - section 86
Item 23 will insert new section 86 to establish that a member of the Board, a member of the
Review Board or a member of staff assisting the Board or the Review Board are protected
from criminal or civil proceedings in connection with the performance of their functions or
duties in good faith.
New section 86 will provide that the persons listed above are immune from civil or criminal
proceedings in relation to action taken, or not taken, in good faith in connection with the
performance or purported performance of functions or duties, or the exercise or purported
exercise of powers, conferred by the Classification Act.
This will mean that Board members, Review Board members and staff assisting the Board or
the Review Board will, for example, be protected from criminal and civil liability (if any) for
possessing, distributing or delivering RC material or any other material that is in breach of
Commonwealth, State or Territory enforcement legislation.
The inclusion of the word purported` in the section is intended to cover situations such as
where a person is instructed to take an action, and in good faith takes that action, and it is
later discovered that the action was beyond the scope of the powers conferred by the
Classification Act. The person should nonetheless be immune from criminal or civil
proceedings in relation to that action.
New section 86 is not intended to provide immunity for bad faith or unreasonable actions
taken in purported performance of a function or duty, or purported exercise of a power,
conferred by the Classification Act.
Items 24 and 25 - section 91
Items 24 and 25 will repeal subsections 91(1) to (2) and 91(5), and insert new subsections
91(1), 91(2), 91(5) and 91(6), to establish that only the Minister may waive all or part of fees
payable under the Classification Act. It is no longer appropriate for the Director or Convenor
to waive fees because they have no other financial powers under the Classification Act.
The reference to the fee waiver principles will be deleted because it would be odd on the face
of the legislation for the Minister to waive fees in accordance with principles developed by
the Minister. It is intended that the fee waiver principles be replaced with administrative
guidelines that cover similar matters.
42
New subsection 91(1) will establish that the Minister (or the Minister`s delegate) may waive
all or part of the fees payable in respect of an application made under the Classification Act
in certain circumstances.
Subsection 91(1) provides that the Minister may waive all or part of the fees if:
in the Minister`s opinion, it is in the public interest to waive fees for public health or
educational reasons; or
the application for a waiver of fees has been made by:
o a Commonwealth, a State or a Territory agency or an authority of a
Commonwealth, State or Territory; or
o a body that is registered under the Australian Charities and Not-for-profits
Commission Act 2012(ACNC Act); or
o a not-for-profit body which is not registered under the ACNC Act; or
the application for the waiver of fees relates to an application for the classification of
special interest material that will not be widely distributed and:
o the material is wholly or mainly a documentary record of an event; or
o the material is of a cultural or like nature; or
o the material is a short film from a new or emerging film maker;
and, in the Minister`s opinion, it is in the public interest to waive fees for such an
application.
New subsection 91(2) will state that the Minister must, within 28 days of having made a
decision in respect of an application to waive fees, notify the applicant in writing of the
decision and the reasons for the decision.
Subsection 91(5) will be repealed and new subsections 91(5) and 91(6) will be inserted.
Subsection 91(5) will establish that the decision made by the Minister in respect of an
application to waive fees is subject to review by the Administrative Appeals Tribunal.
Subsection 91(6) will establish that the Minister may delegate his or her power to waive fees
to the Secretary of the Department, an SES employee, or an acting SES employee in the
Department. This is appropriate to improve the administrative efficiency of the fee waiver
process.
Items 26 and 27 - paragraph 93(2)(aa) and 93(2)(a)
Items 26 and 27 will insert new paragraph 93(2)(aa) after paragraph 93(2)(a) and amend
paragraph 93(2)(a) to permit Regulations to be made in relation to assessments of computer
games. These are consequential amendments.
New paragraph 93(2)(aa) will be inserted to clarify that Regulations may be made which
describe the circumstances in which an assessment of a computer game is taken to contain
43
misleading, incorrect or grossly inadequate information under new paragraphs 17A(2)(c),
17B(1)(b) and 17C(1)(b).
Existing paragraph 93(2)(a) will be amended to clarify that Regulations may be made which
describe the circumstances in which an assessment of classifiable elements is taken to be
misleading, incorrect or grossly inadequate under new paragraphs 17A(2)(a)(ii) and
21AC(a)(ii).
Item 28 - section 100
Item 28 will repeal section 100, which deals with the concurrent operation of State and
Territory laws in relation to Part 10 of the Classification Act. New section 4A will be
inserted to clarify that the Classification Act, in its entirety, will operate concurrently with
State and Territory legislation.
Part 2--Amendments to the Broadcasting Services Act
Broadcasting Services Act 1992
Item 29 - subclauses 28(1) and (2) of Schedule 7
Item 29 will make consequential amendments to subclauses 28(1) and (2) of Schedule 7 of
the BSA as a result of amendments to sections 38, 39 and 40 of the Classification Act. The
amendments will clarify when the period during which reclassification is prohibited
commences, and will account for the fact that the Board can no longer initiate
reclassification.
Subclause 28(1) will clarify that the Board may not reclassify material within two years from
when the decision to classify the material took effect. This will be when notice was given or
as otherwise specified by the Classification Act or BSA. Subclause 28(2) will state that only
the Minister for Communications, the Australian Communications and Media Authority or
the person who applied under clause 22 for classification of the content may make a request
that the Board reclassifies the content.
Item 30 - subclause 28(3) of Schedule 7
Item 30 will consequentially amend subclause 28(3) to refer to a request` for the Board to
reclassify material under subclause 28(2).
Part 3--Application and saving provisions
Item 31 - Amendment relating to use of determined markings
Item 31 will ensure that the provision relating to the use, in trade or commerce, of determined
markings (section 8AA) does not apply retrospectively. As the provision contains a penalty,
it should only apply to conduct occurring after commencement.
44
Item 32 - Amendments relating to contentious material statements
Item 32 will mean that title change` applications for classification submitted before the
commencement of subsections 14(4A) and 17(2AA) will still need to be accompanied by
particulars of contentious material.
Item 33 - Amendments relating to additional content
Item 33 will stipulate that, in relation to applications for classification accompanied by
assessments of additional content made prior to the commencement of amended subsection
14(7) and new subsection 14(8), the Director of the Board must continue to invite additional
submissions in all cases of disagreement.
Item 34 - Amendments relating to applications for television series films
Item 34 will mean that an application for the classification of an assessed television series
film made prior to the commencement of amended section 14B will be invalid unless an
episode contained on the film has been broadcast in Australia.
Item 35 - Amendment relating to computer games
Item 35 will mean that the minor changes to the requirements for assessments of computer
games will only apply to applications made after the commencement of amended section
17(3).
Item 36 - Amendments relating to assessors of computer games
Item 36 will ensure that the new provisions expressly empowering the Director of the Board
to revoke the authorisation of persons to assess computer games (section 17A), and to bar
persons from assessing computer games (section 17B), will apply irrespective of when the
persons were authorised to assess computer games. These provisions safeguard the
additional content assessor scheme and align it with other assessor schemes; the application
of the provisions to all additional content assessors is therefore appropriate.
Item 36 will also ensure that persons authorised to assess computer games immediately
before the commencement of amended section 17(3) will not lose their authorisations as a
result of the amendments. This is necessary to preserve the additional content assessor
scheme and so as not to adversely and unnecessarily affect the rights of persons currently
authorised to assess additional content.
Item 37 - Amendments relating to the date of classification decision
Subitem (1) of item 37 will make the amendments to section 38 (regarding the two year limit
on reclassification or re-approval of content) apply to publications, films, computer games
and advertisements irrespective of when they were classified, approved or refused approval.
Subitem (2) of item 37 will make the substituted subclause 28(1) of Schedule 7 of the BSA
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(regarding the two year limit on reclassification of content) apply in relation to content
irrespective of when it was classified.
It is appropriate for these amendments to apply to all content since they eliminate confusion
about the commencement of the two year limit on reclassification or re-approval. That is, the
amendments are for clarity and do not substantively affect the rights of any person.
Item 38 - Amendments relating to reclassification
Subitem (1) of item 38 will make it clear that the Board may act under existing section 39(1)
at the request of the Minister, or on its own initiative, prior to the commencement of the
amendments to sections 39 and 40. For example, if a film was classified over two years ago,
the Board may reclassify that film on its own initiative prior to the commencement of this
item.
Subitem (2) of item 38 will stipulate that, after the commencement of the amendments to
clause 28 of Schedule 7 of the BSA, the Board may continue an ongoing action to reclassify
content under existing subclause 28(1)(b) provided that the Board commenced taking that
action prior to the commencement of the amendments to clause 28. For example, if content
was classified over two years ago and the Board began to reclassify that content before the
commencement of the amendments to subclause 28, the Board could complete the process of
reclassifying that content even after the amendments commenced.
Item 39 -Amendment relating to immunity
Item 39 will safeguard members of the Board, members of the Review Board and staff
assisting the Board or Review Board from criminal or civil liability in respect of anything
done, or omitted to be done, at any time in connection with their functions or duties. That is,
the immunity in new section 86 will apply retrospectively. Retrospectivity for this provision
is appropriate since Commonwealth employees and statutory appointees should be immune
from civil or criminal liability for past and future good faith conduct in connection with their
occupation.
Item 40 - Amendments relating to fee waiver
Item 40 will state that the amendments to the fee waiver provisions in section 91 (that only
the Minister can determine fee waivers and that the fee waiver principles no longer apply)
only apply to applications for fee waiver made after the amendments commence.
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SCHEDULE 7--SIMPLIFIED OUTLINES
Classification (Publications, Films and Computer Games) Act 1995
Schedule 7 will amend the Classification Act to include simplified outlines for each Part of
the Act. Simplified outlines are included only to assist readers to understand the substantive
provisions. However, the outlines are not comprehensive and it is intended that readers
should rely on the substantive provisions.
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