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Date introduced:  15 February 2012
House:  House of Representatives
Portfolio:  Justice
Commencement:  This Act will commence on 1 January 2013

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose

The purpose of the Bill is to create an R 18+ Restricted category for computer games. The Bill proposes that the R 18+ category that currently applies to films is similarly applied to computer games. This Bill is implementing a Standing Committee of Attorneys-General agreement to introduce an R 18+ classification for computer games.

Background

The Classification (Publications, Films and Computer Games) Act 1995 (Classification Act) defines ‘computer game’ to mean a computer program and any associated data capable of generating a display on a computer monitor, television screen, liquid crystal display or similar medium that allows the playing of an interactive game’.[1] Apps and other computer programs that are not ‘played’ or ‘interactive games’ would presumably not meet this definition of computer game.[2]

Computer games are regulated under the National Classification Scheme (NCS). The NCS is a cooperative scheme between the Commonwealth, states and territories. Procedures for the classification of publications, films and computer games are set out in the Classification Act. Currently, subsection 7(3) of the Act has five classifications: G, PG, M, MA 15+, and RC.[3]

In recent years there have been a number of reviews and developments relating to both the classification of computer games and to the entire classification system more generally.

In 2009, the Attorney-General’s Department issued a Discussion Paper about the introduction of an R 18+ classification for computer games, posing the question ‘Should the Australian National Classification Scheme include an R 18+ classification category for computer games?’ 98 per cent of respondents (almost 60 000) said yes.[4]

Following this, the Australian Law Reform Commission (ALRC) was asked in March 2011 to inquire into and report on the framework for the classification of media content in Australia.  This report, Classification-Content Regulation and Convergent Media, was tabled in Parliament on 1 March 2012.[5]

In July 2011, the Standing Committee of Attorneys-General considered the introduction of an R 18+ classification category for computer games. With the exception of New South Wales, they agreed in principle to support the introduction of the classification. At the later date of August 2011, the New South Wales Government joined in supporting the new classification category for computer games.

Following the passage of this Bill that creates the new classification of R 18+ for computer games, the state and territory jurisdictions will need to pass complementary laws to enable the classification to be operational and effective. On 27 March 2012, the ACT was the first jurisdiction to introduce an amendment classification Bill into the Legislative Assembly.[6] Other jurisdictions have until January 2013 to introduce and pass similar legislation. South Australia has announced that complementary legislation is likely to be introduced in May 2012. Additionally, the South Australian Attorney-General John Rau has stated that his intention is ‘that the South Australian legislation will [also] prevent the sale of MA 15+ games to minors. This move will give parents greater certainty about the appropriateness of games for their children’.[7]

The introduction of an R 18+ classification for computer games is a small part of a wide and comprehensive review of the classification system that the Government is presently considering. The ALRC’s Discussion Paper proposed that certain content should only be required to be classified if it is produced on a commercial basis.[8] This is because the classification obligation can be costly. The ALRC further deliberated over whether all commercial computer games should be classified or whether classification should be limited to computer games that are likely to be classified MA 15+ or higher. The ALRC ultimately recommended that commercial computer games that are likely to have a significant Australian audience and are likely to be classified MA 15+ or higher should be classified before they are sold or otherwise distributed.[9] A contrary view submitted by the Classification Board was that lower level computer games should also be classified as ‘parents and guardians actively seek out sound, reliable and consistent classification information... particularly when they are looking to purchase or provide to children’.[10] Further ‘it cannot be assumed that lower-level content is easy or straightforward to classify’.[11] The Government is yet to respond the ALRC report.

It must be made clear that this Bill is not diminishing the definition or effect of any existing classifications (PG, MA 15+ et cetera). It is enabling the classification of R 18+ to be applied to computer games. Reviewing and modifying the MA 15+ criteria has been considered as part of the broader classification review.

Committee consideration

The Bill was referred to the House of Representatives Standing Committee on Social Policy and Legal Affairs. The Bill was also referred to the Senate Legal and Constitutional Affairs Legislation Committee for consideration. Reporting in February and March 2012 respectively, both Committees concluded their consideration with one recommendation that their respective chambers pass the Bill.

Financial implications

The Explanatory Memorandum to the Bill states that the amendments in the Bill have no financial impact on Government revenue.[12]

Human Rights implications

A correction has been made to the Explanatory Memorandum on the human rights implications of this Bill.

The Explanatory Memorandum now states that:

This Bill engages the right to freedom of expression in Article 19 of the International Covenant on Civil and Political Rights which encompasses the freedom to seek, receive and impart information and ideas. The right to freedom of expression extends to any medium, including written and oral communications, the media, public protest, broadcasting, artistic works and commercial advertising.

The right to freedom of expression carries with it special responsibilities, and may be restricted on several grounds including the classification of material where this is necessary on a limited number of grounds including where this is necessary to protect public health and morals, or the rights of others, including protecting children and young people against the harm caused by age-inappropriate material.[13]

Originally stating that the Bill does not raise any human rights issues, this statement has been omitted and replaced with ‘[the] Bill is compatible with human rights issues because it advances the protection of human rights and to the extent that it may also limit human rights, those limitations are reasonable and proportionate’.[14]

Main issues

New computer games submitted for classification after the commencement of this Bill will be able to be rated as R 18+; meaning that the games are not suitable for minors to play due to specific violent or sexual conduct. There will be no retrospectivity or reclassification of computer games that have been classified prior to the Bill coming into effect.

There are no new offences created in this Bill. If a computer game is classified M instead of R 18+, a public person may feel aggrieved and could raise this with the Classification Review Board. Issues may arise in the state and territory jurisdictions as to the amount prescribed in any associated penalty provisions. Jurisdictions will need to consider offences such as selling or demonstrating a computer game that is classified R 18+ to minors. The Australian Christian Lobby had reservations about the effectiveness of the current classification scheme to restrict the sale and availability of the computer games to minors because of existing inconsistencies in the classification enforcement regime across Australian jurisdictions.[15]

Generally, submissions to the Senate Parliamentary Committee were supportive of the Bill.[16] As an example, Bruce Arnold of the University of Canberra concluded his submission stating that:

the Bill ‘is reality based’. It does not open regulatory floodgates. It is consistent with the ALRC’s analysis. It does not impose an inappropriate burden on industry or introduce unacceptable risks for the care of minors and other vulnerable people. Instead it brings games classification in to line with film classification (important given the convergence of those genres and parent/child interpretation of classification tags such as ‘R 18+’).[17]

Key provisions

Main amendments Part 1

The main provisions of this Bill, set out at Part 1 of Schedule 1 of the Bill, amend the Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act). There are four items in this Part.

As set out above, subsection 7(3) of the Classification Act sets out the available classification categories for computer games.  Item 1 of Schedule 1 of the Bill will insert the term ‘R 18+ Restricted’ in subsection 7(3) of the Classification Act. The effect is to introduce a new classification category of R 18+ for computer games.

Subsection 20(1) of the Classification Act provides that if the Classification Board classifies a computer game as PG, M or MA 15+, it must determine consumer advice giving information about the content of the game.  Item 2 of Schedule 1 of the Bill will include the term R 18+ at paragraph 20(1)(b) to require the Classification Board to provide consumer advice giving information about any computer game that is rated R 18+.

Section 42 of the Classification Act provides that a specified group of persons is able to apply for the review of a decision by the Board. This is known as a restricted decision and applies to items of any classification. Item 3 of Schedule 1 of the Bill will insert the term R 18+ at subsection 42(5) (paragraph (c) of the definition of restricted decision).

Item 4 of the Bill outlines that the amendments to the Classification Act made by part 1 of Schedule 1 of the Bill apply to decisions of both the Classification Board and the Classification Review Board that are made on or after the day the Schedule commences.

Consequential amendments Part 2

Subclause 30(4) of Schedule 7 of the Broadcasting Services Act 1992 (Cth) defines the term restricted classification for the purposes of a review of the classification of content. Section 30(4) of Schedule 7 outlines who may apply for a review.  Item 5 of the Bill will insert the term R 18+ into the Broadcasting Services Act 1992 at subclause 30(4) of Schedule 7, at the definition of restricted classification. This is a consequential amendment, its effect being to recognise the introduction of an R 18+ classification for online computer games regulated under the Broadcasting Services Act.

Concluding comments

There has been extensive public consultation on the question of an R 18+ classification which suggests there is overwhelming support for an R 18+ classification for computer games. This Bill will enable the states and territories to introduce and pass complementing legislation before this Bill’s commencement date of 1 January 2013.