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Classification (Publications, Films and
Computer Games) (Enforcement)
Amendment Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
The Bill makes a number of amendments to the Classification (Publications,
Films and Computer Games) (Enforcement) Act 1995 to implement the
decision of participating Ministers in the National Classification Scheme to
introduce a new R 18+ classification for computer games in Australia.
The Bill is intended to complement the Classification (Publications, Films
and Computer Games) Act 1995 of the Commonwealth by restricting the
sale, delivery, demonstration and advertisement of R 18+ computer games to
persons aged 18 years and over.
The Bill also inserts an exemption for law enforcement personnel and
authorised persons from certain offences prohibiting the on-line publishing
or transmission of objectionable material and child pornography.
These exemptions will allow members or officers of law enforcement
agencies or authorised persons to securely publish or transmit objectionable
material and child pornography through an on-line information service for the
purposes of inclusion of that material in national law enforcement and
intelligence sharing databases.
Clause Notes
Clause 1 sets out the main purposes of the Bill.
Clause 2 provides for the commencement of the Bill. The Bill (except for
Part 2) comes into operation on the day after the Act receives
Royal Assent. Part 2 of the Bill comes into operation on
1 January 2013.
571117 1 BILL LA INTRODUCTION 9/10/2012
Clause 3 identifies that the Classification (Publications, Films and
Computer Games) (Enforcement) Act 1995 is called the
Principal Act for the purposes of the Bill.
Part 2 of the Bill makes amendments to the Principal Act relating to R 18+
computer games.
Clause 4 inserts a new section 36A into the Principal Act. The new
section establishes an offence prohibiting the public
demonstration of R 18+ computer games in a public place unless
the determined markings are exhibited before the computer game
can be played and entry to the premises is restricted to adults
(persons aged 18 years and over). The determined markings are
defined in the Principal Act as those determined by the
Commonwealth Minister pursuant to section 8 of the
Classification (Publications, Films and Computer Games) Act
1995 of the Commonwealth. The penalty for a breach of this
offence is 10 penalty units.
Clause 5 inserts references to R 18+ computer games in section 38 of the
Principal Act to prohibit the demonstration of R 18+ computer
games (along with MA 15+ and Refused Classification (RC)
computer games) in a manner that is visible from a public place.
The penalty for a breach of this offence in the context of a
computer game that is classified R 18+, or is subsequently
classified R 18+, is 40 penalty units.
Clause 6 inserts references to R 18+ computer games in section 39 of the
Principal Act to prohibit the private demonstration in the
presence of a minor of a computer game classified R 18+, or an
unclassified game which would, if classified, be R 18+.
The offence already applies to RC games. The penalty for a
breach of this offence in the context of R 18+ computer games is
40 penalty units. The amending clause increases the existing
penalty for private demonstration of RC material from 20 penalty
units to 240 penalty units or imprisonment for 2 years. This is
consistent with the penalty provided for in a correlating offence
relating to private demonstration of RC films in section 12 of the
Principal Act and with penalties relating to RC material more
broadly.
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Clause 7 amends section 41 of the Principal Act to establish a penalty for
keeping unclassified computer games with other classified
computer games, in circumstances where the unclassified
computer game is subsequently classified R 18+. The penalty is
a fine not exceeding 120 penalty units or imprisonment not
exceeding a year.
Clause 8 inserts a new offence in section 42 of the Principal Act, providing
that a person must not sell or deliver to a minor a computer game
classified R 18+, or an unclassified computer game, which if
classified, would be R 18+, unless the person is a parent or
guardian of the minor. The penalty for this offence is 60 penalty
units or imprisonment for 6 months.
Clause 8 inserts two defences to prosecution under section 42 of
the Principal Act. The first defence applies in circumstances
where the minor produced acceptable proof of age to the accused
or the employee or agent of the accused prior to sale or delivery
of the game and that person believed on reasonable grounds that
the minor was an adult. This defence may apply in
circumstances where a minor presents fraudulent identification,
so as to lead to the reasonable belief that a minor is an adult.
The second defence applies in relation to delivery of an R 18+
computer game and applies where the minor was employed by
the accused or the employer of the accused and the delivery took
place in the course of employment. This defence reflects that the
offence is not intended to apply to circumstances where minors
working in a retail store physically handle R 18+ computer
games for the purposes of performing employment duties.
Clause 9 inserts references to R 18+ computer games into section 44 of the
Principal Act to prohibit a person from leaving either an R 18+
computer game, or unclassified computer game which, if
classified, would be R 18+, in a public place or on private
premises without the occupier's permission. The penalty for this
offence is 120 penalty units or imprisonment for 1 year.
Clause 10 inserts new penalties for the offences in section 45(1) and (2) of
the Principal Act. The effect of the insertion of the new penalties
is that the offences will prohibit the possession or copying of an
unclassified computer game that is subsequently classified R 18+,
where the possession or copying occurs with the intention of
selling or demonstrating that computer game. The penalty for
both offences is 120 penalty units or imprisonment for 1 year.
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Clause 11 inserts references to R 18+ computer games in column 3 of the
table contained in section 48 of the Principal Act. The purpose of
this insertion is to prevent the screening of an advertisement for
R 18+ computer games during the screening of a film, other than
an R 18+ film. This is designed to ensure that minors are not
exposed to adult content when watching a film of a lower
classification. A failure to comply with the advertising
restrictions provided for in the table is subject to a penalty of
20 penalty units for a natural person and 50 penalty units for a
body corporate.
Clause 12 inserts a reference to R 18+ computer games in section 49(1) of
the Principal Act to prohibit a person from screening an
advertisement for an R 18+ computer game, or for an unclassified
computer game that is subsequently classified R 18+, in a public
place or so that it can be seen from a public place. The penalty
for this offence is 20 penalty units for a natural person and
50 penalty units for a body corporate. Clause 12(2) amends
section 49(2) of the Principal Act, which sets out circumstances
which will not be taken to be a contravention of section 49(1), to
include the screening of an advertisement for an R 18+ computer
game during the exhibition of a film classified R 18+ or in a
restricted publications area.
Clause 13 inserts a reference to R 18+ computer games in column 3 of the
table contained in section 50 of the Principal Act. The purpose of
this insertion is to prevent the sale of feature films (such as
DVDs) that are accompanied by an advertisement for an R 18+
computer game, unless the feature film is also classified R 18+.
This is designed to ensure that minors are not exposed to adult
content when purchasing a film of a lower classification.
A failure to comply with the advertising restrictions provided for
in the table is subject to a penalty of 20 penalty units for a natural
person and 50 penalty units for a body corporate.
Clause 14 includes R 18+ computer games in columns 1, 2 and 3 of the
table contained in section 51 of the Principal Act, inserting a new
item 5. This purpose of this insertion is to prevent the sale of
computer games that are accompanied by an advertisement for an
R 18+ computer game, unless the computer game is also
classified R 18+. This is designed to ensure that minors are not
exposed to adult content when purchasing a computer game of a
lower classification. A failure to comply with the advertising
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restrictions provided for in the table is subject to a penalty of
20 penalty units for a natural person and 50 penalty units for a
body corporate.
Clause 15 amends the definition of material unsuitable for minors of any
age contained in section 56 of the Principal Act to include a
reference to "a computer game that is classified R 18+ or would,
if classified, be classified R 18+". This phrase is inserted to
ensure that section 58(1) of the Principal Act makes it an offence
for a person to use an on-line information service to publish or
transmit, or make available for publication or transmission, an
R 18+ computer game to a minor.
This clause also amends the definition of objectionable
material in the Principal Act by removing the paragraph that
refers to objectionable material including a computer game that
"is unsuitable for a minor to see or play". As R 18+ computer
games will be legally available to adults, it is not appropriate for
such computer games to be captured by prohibitions associated
with objectionable material.
Clause 16 amends section 83 of the Principal Act to insert R 18+ computer
games as content that can be published to a prescribed person,
body or class of person or body.
Part 3 of the Bill makes amendments to the Principal Act relating to law
enforcement exemptions.
Clause 17 inserts a definition of law enforcement agency into section 56 of
the Principal Act. This definition is modelled on the identical
definition contained in the Crimes Act 1958. The definition
captures police (or any other authority or person responsible for
the enforcement of laws) of Victoria, other States and the
Northern Territory. The definition also captures the Australian
Federal Police and the Australian Crime Commission.
The Australian Capital Territory is not noted, as it forms part of
the Australian Federal Police.
Clause 18 creates an exemption in relation to the prohibited conduct
referred to in section 57 of the Principal Act (prohibition on a
person using an on-line information service to public or transmit,
or make available for transmission, objectionable material).
The new exemption applies to certain persons engaging in the
prohibited conduct in the exercise or performance of a power,
function or duty conferred or imposed on the person by the
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Principal Act, another Act or the common law. The persons
captured by the exemption are--
a member or officer of a law enforcement agency; or
a person authorised in writing by the Chief
Commissioner of Police who is assisting a member or
officer; or
a person belonging to a class of persons authorised in
writing by the Chief Commissioner of Police who is
assisting a member or officer.
The purpose of this exemption is to authorise members or
officers of law enforcement agencies or persons authorised by
the Chief Commissioner of Police to be able to securely transmit
objectionable material for the purposes of law enforcement
activities. This exemption is consistent with exemptions from
child pornography offences provided for in the Crimes Act
1958.
Clause 19 creates an exemption to the offence under section 57A of the
Principal Act (prohibition on using an on-line information
service to publish or transmit, or make available for transmission,
objectionable material that constitutes child pornography).
Specifically, the offence relates to material depicting a minor
(or a person who appears to be a minor) engaging in sexual
activity or depicted in an indecent sexual manner or context.
The exemption is created in identical terms and for the same
purpose as the exemption inserted by clause 18 of the Bill, as
outlined above.
Clause 20 creates an exemption to the offence under section 59 of the
Principal Act (prohibition on publishing an advertisement or
notice, or using or allowing an on-line transmission service to be
used for publishing or making available an advertisement or
notice, that objectionable material is available for on-line access).
The exemption is created in identical terms and for the same
purpose as the exemption inserted by clause 18 of the Bill, as
outlined above.
Clause 21 provides for the automatic repeal of the Bill on 1 January 2014.
The repeal of the Bill does not affect in any way the operation of
the amendments made by the Bill (see section 15(1) of the
Interpretation of Legislation Act 1984).
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