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Classification (Publications, Films and
Computer Games) (Enforcement)
Amendment Bill 2007
Introduction Print
EXPLANATORY MEMORANDUM
General
The objective of the Classification (Publications, Films and Computer
Games) (Enforcement) Act 1995 (the Victorian Act) is to give effect to the
Commonwealth/State/Territory scheme for the classification of publications,
films and computer games set out in the Classification (Publications, Films
and Computer Games) Act 1995 of the Commonwealth. The Victorian Act
provides for the enforcement of classification decisions made under the
Commonwealth Act by prohibiting the publishing or sale of certain
publications, films and computer games. It also prohibits certain material on
on-line information services.
The Classification (Publications, Films and Computer Games)
(Enforcement) Amendment Bill 2007 (the Bill) amends the Victorian Act to
implement amendments consequential on the Classification (Publications,
Films and Computer Games) Amendment Act 2007 of the Commonwealth
(the Commonwealth Amendment Act).
The Commonwealth Amendment Act amends the Commonwealth
Classification (Publications, Films and Computer Games) Act 1995 (Cth.),
among other things--
· to provide separate statutory powers to the Convenor of the
Review Board to manage the administrative functions of the
Review Board independently of the Board (confining the
existing powers of the Director to matters associated with the
Board) and to give new powers to the Convenor for matters
associated with the Review Board. These include obtaining
copies of material to be reviewed, considering applications for
waiver of fees, and issuing classification certificates;
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· to respond to the changing technological environment for
entertainment media. It provides that additions to already
classified films of descriptions or translations such as subtitling
or captioning, or of navigation functions such as interactive
menus, are not considered modifications necessitating
reclassification; and
· to transfer from the Director of the Board to the Minister the
power to determine markings to be displayed about classified
materials.
The Bill implements the necessary consequential amendments to the
Classification (Publications, Films and Computer Games) (Enforcement)
Act 1995 to ensure that the Victorian Act is consistent with the
Commonwealth Act.
Clause Notes
Clause 1 sets out the purpose of the Bill which is to amend the
Classification (Publications, Films and Computer Games)
(Enforcement) Act 1995 to make consequential amendments
required as a result of the Commonwealth Amendment Act.
Clause 2 provides for the commencement of the Bill. Clauses 1 and 2(1)
will come into operation on the day after the day on which the
Bill receives the Royal Assent. The remaining provisions will
come into operation on a day or days to be proclaimed.
However, these provisions will come into operation on 15 March
2008 if not proclaimed before that date. The commencement
provisions have been drafted to ensure that the commencement
ties in with the commencement of the relevant provisions of the
Commonwealth Amendment Act.
Clause 3 provides that in the Bill the Classification (Publications, Films
and Computer Games) (Enforcement) Act 1995 is called the
Principal Act.
Clause 4 substitutes the definition of approved form in section 3 of the
Principal Act with a new definition that refers to new section 8A
of the Commonwealth Act. New section 8A of the
Commonwealth Act provides that the Minister may approve a
form for a notice about classification. As the note in the new
section 8A in the Commonwealth Act explains, State and
Territory legislation requires sellers and exhibitors of classified
material to display a notice about classifications where the
material is sold or exhibited.
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For example, section 7 of the Principal Act requires a person who
exhibits a film in a public place to keep a notice in the approved
form about classifications for films on display in a prominent
place so that the notice is clearly visible to the public.
Clause 4 also inserts a definition of Convenor to mean the
Convenor of the Review Board appointed under section 74 of the
Commonwealth Act. The definition is required for the
amendments in clauses 9, 11 and 12 of this Bill. These clauses
(explained below) are required to give effect to the new
amendments to the Commonwealth Act to give new powers to
the Convenor for matters associated with the Review Board.
These include obtaining copies of material to be reviewed,
considering applications for waiver of fees, and issuing
classification certificates.
Clause 5 inserts a new section 5A in the Principal Act. New section 5A
provides that a film that is contained on one device and consists
of only two or more classified films, is to be treated for the
purposes of this Act as if each of the classified films were on
a separate device. The amendment is consistent with new
section 14A inserted by the Commonwealth Amendment Act.
New section 14A of the Commonwealth Act clarifies that, when
several previously classified films are brought together for
distribution as a single package, the product does not require
classification simply because of the fact of compilation.
The Commonwealth Act amendment recognises that, with
changing technology, there is increasingly the capacity to put a
number of already classified films on the one storage device.
The amendment to the Commonwealth Act clarifies that a new
application and classification of a compilation of already
classified films on a single storage device is not required as it
does not constitute a new film.
As the definition of film in the Principal Act has the same
meaning as in the Commonwealth Act, this amendment is
required to make sure that the offences in the Principal Act are
consistent with the classification requirements for films under the
Commonwealth Act.
Clause 6 inserts a new section 6(2) at the end of section 6 of the Principal
Act. Section 6 provides that a person must not exhibit a film in a
public place unless the film is classified, is exhibited with the
same title as that under which it is classified and is exhibited in
the form, without alteration or addition, in which it is classified.
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Section 6(2) provides that section 6 is not contravened by reason
only of the exhibition of a classified film under a title different
from that under which the film is classified if it is contained on
one device that consists only of two or more classified films.
Section 6(2) is required to prevent films that fall within
section 14A of the Commonwealth Act (and new section 5A to
be inserted in the Principal Act) from being captured by the
offence in section 6. For example, in circumstances where a
classified film or films contained on one device was or were
screened in a public place, and the film(s) were screened under
the title given to the compilation of the films on the one device,
rather than screened under the title under which the film(s) were
classified.
Section 6(2) also provides that it is not an offence to exhibit a
classified film with a modification referred to in section 21(2) of
the Commonwealth Act. This is required to make sure the
offences are consistent with the classification requirements under
the Commonwealth Act. Section 21(2) of the Commonwealth
Act provides that the following modifications to a film do not
require it to be reclassified under section 21 of the
Commonwealth Act--
· including or removing an advertisement, other than an
advertisement to which section 22 of the
Commonwealth Act applies; or
· for an imported film or computer game that was in a
form that cannot be modified and has subsequently been
converted to a form that can be modified--removing
from the film or game certain specified advertising
material; or
· for a classified film--the addition or removal of
navigation functions; or
· for a classified film--the addition or removal of
material which provides a description or translation of
the audio or visual content of the film and would not be
likely to cause the film to be given a higher
classification.
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Clause 7 inserts new section 16(2) at the end of section 16 of the Principal
Act. Section 16 provides that a person must not sell a classified
film unless the film is sold under the same title as that under
which it is classified and in the form, without alteration or
addition, in which it is classified. Section 16(2) provides that
section 16 is not contravened by reason only of the sale of a
classified film under a title different from that under which the
film is classified if it is contained on one device that consists only
of two or more classified films.
Section 16(2) is required to clarify that films which are captured
by new section 14A of the Commonwealth Act (and new
section 5A to be inserted in the Principal Act) are not captured by
the offence in section 16. For example, in circumstances where
classified films contained on one device are sold under a title
different from the title under which each film was classified.
Section 16(2) also provides that it is not an offence to sell a
classified film with a modification referred to in section 21(2)
of the Commonwealth Act. Such a modification does not require
the film to be reclassified. The notes to clause 6 set out these
modifications. This amendment is required to make sure the
offences are consistent with the classification requirements under
the Commonwealth Act.
Clause 8 omits the phrase "by the Director" from section 52(1)(b)(i) of
the Principal Act. Section 52 of the Principal Act sets out the
requirements in relation to an advertisement for a classified
film, classified publication or classified computer game.
Section 52(1)(b)(i) provides that the determined markings and
consumer advice are to be displayed in the matter determined
under section 8 of the Commonwealth Act.
New section 8(1) of the Commonwealth Act empowers the
Minister (rather than the Director of the Classification Board)
to determine markings for each type of classification giving
information about the classification and to determine the manner
in which markings are to be displayed. Omitting the phrase
"by the Director" from section 52(1)(b)(i) is required to make the
section consistent with the Commonwealth Act.
Clause 9 substitutes "Director" with "Convenor" in section 62B(1) of the
Principal Act. Section 62B(1) provides that the Convenor may
require an original applicant or publisher to make a copy of a
publication, film or computer game available where an
application for review of the classification decision made under
the Commonwealth Act is made by a person who is not the
original applicant.
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The amendment mirrors the amendment to section 44A(1) in the
Commonwealth Act which applies to the Australian Capital
Territory. This is consistent with the Convenor of the Review
Board having the statutory powers to manage the administrative
functions of the Review Board independently of the Board.
The power of the Convenor to exercise powers under section 62B
of the Principal Act is given by new section 77A of the
Commonwealth Act.
Clause 10 substitutes the phrase "approved form" with "form approved by
the Director for the purposes of this subsection and published in
the Government Gazette" in section 67(2A)(a) of the Principal
Act. The amendment is required in response to the new
definition of approved form in the Commonwealth Act.
Section 67(2A)(a) requires that an application for an exemption
under section 64(2) must be in the approved form. The new
definition of approved form in the Commonwealth Act (and by
consequential amendment to the Principal Act) means it is no
longer appropriate to keep the reference to approved form in
section 67(2A)(a). The amendment does not change the meaning
of the form to be used when applying under this section. Rather,
it inserts the substance of the current definition of approved form
in this specific provision.
Clause 11 substitutes the phrase "Director or Deputy Director" with the
phrase "Director, Deputy Director or Convenor" in section 78(1)
of the Principal Act. Section 78(1) provides that the Director,
Deputy Director or Convenor can sign a certificate or a copy of a
certificate to be used as evidence in any proceeding for an
offence against the Principal Act. The amendment is required as
a result of amendments to section 87 of the Commonwealth Act.
Clause 12 substitutes the phrase "Director or Deputy Director" with the
phrase "Director, Deputy Director or Convenor" in section 82 of
the Principal Act. The provision provides that in a proceeding
for an offence against the Act, the court may order a person to
pay by way of costs, the amount of any fee incurred by the
prosecution for classification or for the provision of any
certificate by the Director, Deputy Director or Convenor.
As with the amendment to section 78(1), the amendment is
required as a result of amendments to section 87 of the
Commonwealth Act.
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Clause 13 provides for the automatic repeal of this amending Act on
15 March 2009. As suggested by the Scrutiny of Acts and
Regulations Committee, all amending Acts now contain an
automatic repeal provision, which will save the time and expense
of having to repeal amending Acts in statute law revision Bills.
The repeal of this Act does not affect in any way the operation of
the amendments made by this Act (see section 15(1) of the
Interpretation of Legislation Act 1984).
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