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The Classification of Publications, Films and Computer Games Amendment Bill 2008:
(a) provides for amendments consequential to the enactment by the Commonwealth of the Classification (Publications, Films and Computer Games) Amendment Act 2007 namely:
(i) change reference to “National Director” in section 50ZPB
(f) the removal of all of the references to corporate penalties from all of the offences. Section 35DB of the Interpretation Act will now apply to such offences so the maximum penalty for a corporate offender is 5 times the maximum penalty specified for the offence;
(g) omits and replaces the exemptions provisions and amends the regulation making power so that exemptions can be made by regulation (in addition to exemptions that may be granted by the Minister or by the National Director under the Commonwealth Act);
(h) the re-numbering of all of the Parts and all of the provisions from section 35 of the Act; and
(i) a consequential amendment to the Criminal Code (arising from the re-numbering of Part X).
NOTES ON CLAUSES
The Bill when passed may be cited as the Classification of Publications, Films and Computer Games Amendment Act 2008.
2. Commencement
This clause, read with the Interpretation Act, provides that the Act is to commence on the day or days determined by the Administrator.
Computer Games Act
4. Amendment of section 3 (Definitions)
This clause amends section 3 by:
(1) removing and replacing the definitions for “approved form”, “court” and “exhibit”;
(2) replacing “minor” with “child”;
(3) inserting additional definitions of “Advertising Scheme”, “Convenor”, “private place”, “possession” and “prescribed business”; and
(4) making an amendment to the definition of “submittable publication” consequent to the re-numbering of section 50ZM.
5. New sections 3B
This clause inserts new section 3B.
This section provides that for the purposes of the Act a film is a separate film despite the fact that it may be on the same device as another film. See new sections 35(3) and 45(3), for examples of where this definition is used.
This amendment is consequential to section 14A of the Commonwealth Act. Section 14A (as enacted in 2007) clarified that when several previously classified firms are brought together for distribution as a single package, the product does not required classification simply because of the fact of compilation. Section 14A recognises that new technology means there is an increased capacity to put a number of already classified films on a single storage device.
This section applies Part IIAA (principles of criminal responsibility) of the Criminal Code to offences contained in the Act. These new provisions replace the operation of Part II of the Criminal Code.
7. Repeal and substitution of Parts IV to VI
This clause repeals Parts IV to VI (sections 35-50W) and replaces them with new Parts 3-5 (sections 35-74).
Division 1 Exhibition of films
The section prohibits the exhibition of unclassified films in public places or the exhibition of films under titles or forms that differ from those in respect the film was classified.
Section 35(3) also changes the law by permitting exhibition of films as part of a compilation of films or with modifications approved under section 21 of the Commonwealth Act (as amended by the Classification (Publications, Films and Computer Games) Amendment Act 2007).
Section 21 of the Commonwealth Act provides that the following modifications do not lead to a need for re-classification:
The section prohibits the exhibition of films in public places unless an approved form is displayed in such a way as to be visible to the public. The offence is one of strict liability with the maximum penalty being 20 penalty units ($2200).
The section prohibits the exhibition of a refused classification film in a public place or the exhibition of an X 18+ film in a public place that is not a restricted publications area. One of the purposes of this provision is to ensure that X 18+ films cannot be screened in cinemas that are ordinarily open to the public.
The section prohibits the exhibition of RC films or X 18+ films or unclassified films (that. If classified, would be classified RC films or X 18+) in public places. One of the purposes of this provision is to ensure that X 18+ films cannot be screened in cinemas that are ordinarily open to the public.
The section provides that the Minister may prohibit the showing of R 18+ and MA 15+ films in drive in theatres or in places that can be seen into by persons located outside of the place of exhibition.
It is an offence to exhibit a film in breach of a notice under this section. The maximum penalty for breach ranges from 100 penalty units ($11,000)/ 2 years imprisonment for individuals to 1000 penalty units ($110,000) for corporations.
The section prohibits a parent or guardian of a person aged under 18 years from permitting such a person attending the exhibition in a public place of unclassified films or films classified as RC, X 18+ or R 18+.
The section prohibits persons aged 15 or over but under 18 years from attending the exhibition of RC, X 18+ or R 18+ films in a public place.
The section prohibits the exhibition of RC, X 18+ or R 18+ films and unclassified films in a private place if a person under 18 years of age is present during any part of the exhibition.
The section makes it an offence for the exhibitor of a film to exhibit an R 18+ film in a public place if a person under 18 years of age is present during any part of the exhibition.
The section makes it an offence for the exhibitor of a film to exhibit an MA 15+ film in a public place if a person under 15 years of age is present during any part of the exhibition and is not accompanied by a parent or guardian.
Division 2 Sale of films
The section prohibits the sale of unclassified films or the sale of films under titles or forms that differ from those in respect the film was classified.
Section 45(3) also changes the law by permitting the sale of films as part of a compilation of films or with modifications mentioned in under section 21 of the Commonwealth’s Classification (Publications, Films and Computer Games) Act 1995 (as amended by the Classification (Publications, Films and Computer Games) Amendment Act 2007).
This provision is required in order to ensure that the prohibition in section 45 does not apply to films subject to section 14A of the Commonwealth Act or section 21(2) of the Commonwealth Act.
The section prohibits the sale of films unless there is a classification notice that is clearly visible to the public.
The section prohibits the sale of films unless the container, wrapping or casing contains the relevant markings and any relevant consumer advice.
The section prohibits the possession of RC films or unclassified films in places where classified films are sold.
The section prohibits the display or sale of X 18+ films except in restricted publications areas.
The section prohibits the sale of RC, X 18+ and R 18+ classified films and certain unclassified films to persons aged under 18 years.
The section differs from current section 50 in so far as it no longer contains a defence for parents and guardians of persons aged under 18 years who deliver X 18+ films to such children
Division 3 Miscellaneous matters
The section gives police officers and certain other persons
(exhibiters, sellers or delivery persons) the right to require other persons to state name, age and address if the exhibition, sale or delivery of a film would be in breach of Part 3.
The section prohibits a person leaving in a public place or in a private place (without permission of the occupier) a film classified as RC, R 18+, X 18+ and unclassified films.
The section prohibits a person possessing an RC or unclassified film if the person intends to sell or exhibit the film.
Part 5 Publications
The section makes it an offence to sell of deliver submittable publications or publications classified RC.
The section prohibits the sale or delivery of category 1 restricted publications unless in opaque materials and having the determined markings
The section prohibits the sale or delivery of category 2 restricted publications unless this occurs in a restricted publications area. It also prohibits the delivery of such publications to a person who has not made a direct request. Such publications must not be displayed unless contained in opaque packaging which bears the determined markings.
The section prohibits the sale of unrestricted publications or category 1 restricted publications in breach of any condition imposed under section 13 of the Commonwealth Act.
The section prohibits the sale of unrestricted publications in breach of any consumer advice that may apply to them
The section prohibits the sale of an unclassified publication if it has markings suggesting that it has been classified.
The section prohibits the sale or delivery to a person under aged under 18 years of category 1 or category 2 restricted publications.
The section differs from current section 50H in so far as it no longer contains a defence for parents and guardians of persons aged under 18 years who deliver category 1 or category 2 restricted publications to such children
The section creates various offences for leaving submittable publications, category 1 publications and category 2 restricted publications in public places.
The section makes it an offence to possess, with intention to sell, a submittable publication or an RC publication. The section deems a person to have such an intention if the possessor has 10 or more copies.
Part 6 Computer games
The section makes it an offence to sell or demonstrate an unclassified computer game in a public place.
Display of notice about classifications
This section replaces current section 50L. The provision has been revised so the drafting of it conforms with the principles of criminal responsibility as contained in Part IIAA of the Criminal Code.
The section makes it an offence to sell or demonstrate a computer game in a public place unless an appropriate notice, visible to the public, is displayed.
The section makes it an offence to sell or demonstrate a computer game in a public place if the game is classified RC or, if unclassified, would be classified as RC.
The section makes it an offence to sell or demonstrate an MA 15+ game in a public place unless the place is restricted to adults or children in the care of parents or guardians whilst in that place.
The section makes it an offence to demonstrate in a public place or so that it can be seen from a public place a game that is classified RC or MA 15+ or an unclassified one that would, if classified, be RC or MA 15+.
The section makes it an offence to demonstrate in a private place, in the presence of a person aged under 18 years, a game that is classified RC or an unclassified film that would, if classified, be classified RC
The section makes it an offence to sell a game unless its wrapping or casing contains the relevant determined markings and consumer advice.
The section makes it an offence to possess an unclassified or RC game at premises where classified games are demonstrated or sold.
The section makes it an offence to sell or deliver to a person aged under 18 years a game that is RC or, if unclassified, that would be classified RC. The section differs from current section 50T in so far as it no longer contains a defence for parents and guardians of persons aged under 18 years who deliver RC computer games to such children.
The section gives police officers and demonstrators of games the right to require other persons to state name, age and address if the exhibition, sale or delivery of a computer game would be in breach of Part 6
The section makes it an offence to leave in a public place a game that is classified RC or MA 15+ or, if unclassified, would be classified as RC or MA 15+. Similarly, it is an offence to leave such a game in a private place without the permission of the occupier.
The section makes it an offence to possess, with intention to sell, an unclassified game or an RC game. The section deems a person to have such an intention if the possessor has 10 or more copies.
9. Amendment of section 50Y (Codes of practice)
These sections are re-numbered as sections 75 and 76.
10. Repeal and substitution of sections 50Z and 50ZA
This clause repeals and replaces sections 50Z and 50ZA.
77 Objectionable material
The section makes it an offence to use a computer service for sending or receiving objectionable material
The section makes it an offence to use a computer service to make “restricted material” available to persons aged under 18 years.
The section makes it an offence to publish advertisements that either are not approved under the Commonwealth Act or would be refused approval under that Act.
The section prohibits an advertisement for an unclassified film unless it accords with the Advertising Scheme in place under the Commonwealth Act (as proposed to be amended by the Commonwealth’s Classification (Publications, Films and Computer Games) Amendment (Assessments and Advertising) Bill 2008. The section also prohibits advertising of other materials that cannot be legally sold.
The section prohibits advertisements of films in public places (such as cinemas) unless the film being advertised has the same or lower rating to the main feature. The section also prohibits advertising that does not comply with the Advertising Code as proposed in the Commonwealth’s Classification (Publications, Films and Computer Games) Amendment (Assessments and Advertising) Bill 2008.
The section prohibits advertisements of computer in public places unless the computer game being advertised has the same or lower rating any computer game that may be being sold or demonstrated.
The section also prohibits advertising that does not comply with the Advertising Code as proposed in the Commonwealth’s Classification (Publications, Films and Computer Games) Amendment (Assessments and Advertising) Bill 2008.
The section prohibits the screening in a public place of advertisements for MA 15,+, X 18+ or R 18+ films.
The section makes it an offence for classified films and computer games to be advertised except where the determined markings and the consumer advice are provided in an appropriate way (as spelt out in section 85(1)).
The section makes it an offence to publish an advertisement for unclassified materials if the advertising suggests that the materials are classified. Similarly, it is an offence to advertise in such a way as to suggest that the classified materials have a different classification to their actual classification.
The section makes it an offence to advertise category 2 restricted publications in a publication that is not classified as category 2 restricted publication (unless the advertisement is published in a restricted publications area).
The section makes it an offence for a person to sell an X 18+ film to a person following the seller advertising the film as being an R 18+ film.
It is also an offence for advertisements for X 18+ films to explicitly depict or describe sexual acts or fetishes.
The section makes it an offence for a publisher to not include in a publication advertising films, publications or computer games a list of the classification symbols and the determined markings.
13. Amendment of section 50ZMA (Calling in films for classification)
This section renumbers section 50ZMA as section 91 and amends section 91(3) so the drafting of it conforms with the principles of criminal responsibility as contained in Part IIAA of the Criminal Code.
14. Amendment of section 50ZN (Calling in computer games for classification)
This section renumbers section 50ZN as section 92 and amends section 90(3) so the drafting of it conforms with the principles of criminal responsibility as contained in Part IIAA of the Criminal Code.
15. Amendment of section 50ZP (Calling in advertisements)
This section renumbers section 50ZP as section 93 and amends section 93(3) so the drafting of it conforms with the principles of criminal responsibility as contained in Part IIAA of the Criminal Code.
16. Amendment of section 50ZPA (calling in publications, films and computer games for reclassification)
This section renumbers section 50ZPA as section 94 and amends section 94(3) so the drafting of it conforms with the principles of criminal responsibility as contained in Part IIAA of the Criminal Code.
17. Amendment of section 50ZPB (Obtaining copies for review)
This section renumbers section 50ZPB as section 95 and amends section 95(2) so the drafting of it conforms with the principles of criminal responsibility as contained in Part IIAA of the Criminal Code.
The amendment also omits the word “National Director” and replaces it with the word “Convenor”. This is pursuant to amendments made to the Commonwealth Act by the Classification (Publications, Films and Computer Games) Amendment Act 2007.
18. Repeal and substitution of Parts X to XII
This clause repeals Parts X, XI and XII (sections 50ZQ-56) and replaces them with new Parts 10, 11 and 12 (sections 96-105).
New Part 10 replaces old Part X with the Part being drafted so as to accord with exemption schemes in place in other jurisdictions (see, for example, section 51 of the New South Wales Classification (Publications, Films and Computer Games) Act 1995.
Part 11 Sexual articles
The section prohibits the display of sexual articles in public places
The section prohibits advertising in any manner any aspect of a business relating to sexual articles.
Part 12 Restricted Publications Area
The section makes it an offence to permit a person under the age of 18 years to enter a restricted publications area.
Part 13 Production or copying of films and computer games
The section makes it an offence to produce in the Northern Territory an RC or X 18+ film or computer game.
The section makes it an offence to copy for distribution insider or out of the Northern Territory an RC or X 18+ film.
20. Amendment of section 59 (consent to search)
This clause renumbers section 59 as section 111 and corrects a cross reference to section 58 (now section 110).
21. Amendment of sections 60 and 62
This clause renumbers sections 60 and 62 as sections 112 and 113.
22. Repeal and substitution of section 63
Clause 22 repeals section 63 and replaces it with section 114.
114. Liability of executive officers of bodies corporate
24. New section 116
This clause inserts section 116.
115. Statement of prosecution
Section 115 states that the contents of any information or complaint about any of the matters listed in section 115 is evidence of the matter stated.
25. Amendment of sections 64A to 71
Sections 64A to 71 are renumbered as sections 117 to125.
26. New Part 18
29. Amendment of section 125A (interpretation)
Clause 29 corrects a cross reference in section 125A of the
Criminal Code to Part X.
31. Amendment of regulation 7 (Display of sexual articles)
Regulation 7 is amended so as to correct a cross reference to section 52(3)(a) (now section102(3)).
32. Amendment of regulation 8
Regulation 8 is amended so to correct a cross reference to section 61(2). Regulation 8 should have referred to section 64B (following amendments made in 1995) and is now being updated to refer to section 118 (being the new numbering of section 64B).
Schedule
The schedule provides for the Roman numeral numbering to be replaced with the numbering that reflects current drafting practice.
The amendment also updates a reference to Batchelor Institute.