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CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) (ENFORCEMENT) (AMENDMENT) BILL 2001

   Classification (Publications, Films and
Computer Games) (Enforcement) (Amendment)
                     Bill

                         Circulation Print

               EXPLANATORY MEMORANDUM


                                 General
The Bill amends the Classification (Publications, Films and Computer
Games) (Enforcement) Act 1995 to reflect and provide for the enforcement
of the Commonwealth Classifications (Publications, Films and Computer
Games) Act 1995 ("the Commonwealth Act") as amended on 22 March
2001. The Bill also creates a new offence in the Classification
(Publications, Films and Computer Games) (Enforcement) Act 1995
addressing the intentional use of an on-line information service to transmit
child pornography. The Bill also amends the Crimes Act 1958 to provide
indemnities to police and their computer analysts from the offences of
production and possession of child pornography where this is done for the
purpose of investigating child pornography related offences.

                              Clause Notes

                      PART 1--PRELIMINARY
Clause 1   sets out the purposes of the Act.

Clause 2    provides for the commencement of the provisions of the Act.
           Sub-clause (1) provides that the new offence (section 57A) and
           related provisions and the amendments of the Crimes Act 1958
           come into effect on the day after the Act receives Royal Assent.
           Sub-clause (2) provides that, subject to sub-clause (3), the
           remaining provisions come into operation on a day or days to be
           proclaimed.




541224                                         BILL LA CIRCULATION 20/9/2001
                                     1

 


 

Sub-clause (3) provides that if a provision of the Act does not come into operation before 23 March 2002, it comes into operation on that day. This provision reflects the commencement date of the Commonwealth Act which is to be by proclamation or upon the first day after a period of 12 months beginning on the day on which it received the Royal Assent (section 2). The Commonwealth Act received the Royal Assent on 22 March 2001. Clause 3 provides that throughout the Bill, the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 is called the Principal Act. PART 2--AMENDMENT OF THE CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) (ENFORCEMENT) ACT 1995 Clause 4 amends the definitions of certain terms used in the Principal Act. The Bill amends the definitions of "contentious material" and "submittable publication" to refer to the definitions in the Commonwealth Act, thus ensuring uniformity of interpretation. The Bill inserts definitions of "exempt computer game" and "exempt film" to refer to the definitions in the Commonwealth Act, thus ensuring uniformity of interpretation. The Bill inserts definitions of "international flight" and "international voyage". The Principal Act is to be amended to ensure that the definition of "place" does not include a vessel on an international voyage or an aircraft on an international flight. The Principal Act applies to, for example, the exhibition of films in a "public place" or private exhibitions in a "place". International flights and voyages are excluded, as they are otherwise dealt with by the Commonwealth. The Bill inserts a definition of "Review Board" into the Principal Act to refer to the Classification Review Board established by the Commonwealth Act. Clause 5 inserts a new section 5 into the Principal Act. 2

 


 

The new section 5 provides that the Principal Act does not apply to "exempt films" and "exempt computer games" or broadcasting services to which the Broadcasting Services Act 1992 of the Commonwealth applies. "Exempt films" and "exempt computer games" are defined in the Commonwealth Act (as amended 22 March 2001), section 5B. They include business, accounting, professional, scientific, educational, current affairs, hobbyist, sporting, family, live performance, musical presentation, religious and community or cultural films and business, accounting, professional, scientific and educational computer games that would otherwise receive a G or PG rating. Under the Commonwealth Act, the Classification Board can also issue certificates stating that unclassified films and computer games are exempt films or computer games (sections 28A to C). Clause 6 amends sub-section 18(4) of the Principal Act to apply the 14 day grace period to reclassifications of films under the new sections 97A and 22B(3) of the Commonwealth Act. Section 18 of the Principal Act currently provides that a person must not sell a film unless the correct determined markings relevant to the classification of the film and relevant consumer advice, if any, are displayed on the container, wrapping or casing of the film. Sub-section 18(4) currently provides that a person has 14 days to display the correct markings where the film has been reclassified under section 39 of the Principal Act (reclassification after 2 years). Section 97A of the Commonwealth Act provides the Classification Board with the power to reclassify a publication or film where it was classified in response to an enforcement application (that is, an application made by the Commonwealth, State or Territory or an agency thereof for the purpose of investigating or prosecuting a Commonwealth, State or Territory offence), by the former Board (that is, the Censorship Board constituted under the now repealed Customs (Cinematograph Films) Regulations) or a censor under the law of one State or Territory only. Section 22B(3) of the Commonwealth Act provides that where the Classification Board classifies a publication, film or computer game that is the same as or similar to a previously classified 3

 


 

publication, film or computer game, a copy of which is not available to it, when a copy becomes available and has a different classification or consumer advice, the board must revoke the classification or consumer advice for the previously classified publication, film or computer game. Clause 7 amends section 26 of the Principal Act to apply the 14 day grace period to reclassifications of Category 1 restricted publications under the new sections 97A and 22B(3) of the Commonwealth Act. Section 26 provides that a person must not sell or deliver a publication classified Category 1 restricted unless it is contained in a sealed package made of plain, opaque material and both the publication and the package bear the determined markings. Section 26(2) provides that if the sale or delivery takes place in a restricted publications area, the package need not be sealed but on delivery must be contained in an opaque wrapper. Clause 7 amends section 26(2) to make the provision subject to any conditions imposed by the Classifications Board under section 13A(2) of the Commonwealth Act. Section 13A(2) of the (recently amended) Commonwealth Act provides that the Board may, if it classifies a publication as Category 1 restricted, impose a condition that it not be sold, displayed for sale or delivered unless it is contained in a sealed package made of plain, opaque material. Clause 8 amends section 27 of the Principal Act to apply the 14 day grace period to reclassifications of Category 2 restricted publications under the new sections 97A and 22B(3) of the Commonwealth Act. Section 27 provides that a publication that is classified Category 2 restricted must not be displayed except in a restricted publications area, or delivered to a person who has not made a direct request for the publication, or delivered to a person unless it is contained in a package made of opaque material, or published unless it bears the determined markings. Clause 9 inserts new sections 27A and 27B into the Principal Act. Section 27A provides that if a publication is classified Unrestricted or Category 1 restricted subject to a condition imposed under section 13A of the Commonwealth Act, a person 4

 


 

commits an offence if they sell or deliver the publication except in accordance with that condition. The maximum penalty for the offence is 60 penalty units or 6 months imprisonment. Section 27B provides that if a publication is classified Unrestricted and the Board has determined consumer advice under section 20(2) of the Commonwealth Act for the publication, a person commits an offence if they sell the publication unless the consumer advice is displayed on the publication or the packaging of the publication. The maximum penalty for the offence is 60 penalty units or imprisonment for 6 months. Clause 10 amends section 28 of the Principal Act to apply the 14 day grace period for changes of determined markings for publications to reclassifications under the new sections 97A and 22B(3) of the Commonwealth Act. Section 28 contains offences concerning misleading or deceptive markings on publications. Clause 11 inserts two new sub-sections in the Principal Act, 40(3A) and 40(3B). Sub-section 40(3A) makes it an offence to make a computer game available for playing on a pay and play basis (for example, a coin operated arcade game) unless the determined markings relevant to the classification of the computer game and the relevant consumer advice, if any, are displayed on the device used for playing the game. The maximum penalty for the offence is 20 penalty units for a natural person and 50 penalty units for a body corporate. Sub-section 40(3B) provides that if two or more computer games are available for playing on a device referred to in sub-section (3A), the determined markings and consumer advice to be displayed on the device are those relevant to the computer game with the highest classification under the Commonwealth Act. Clause 11 also replaces sub-section 40(4) to apply the 14 day grace period for changes to determined markings and consumer advice for computer games under the new section 22B(3) of the Commonwealth Act. Clause 12 amends sections 46, 52 and 53 of the Principal Act. 5

 


 

Section 46 is amended to extend the categories of advertisements for films, publications or computer games that cannot be published to include advertisements whose approval under section 29 of the Commonwealth Act has been revoked under section 13(5) or 21A of that Act. Section 13(5) of the Commonwealth Act refers to revocations of declarations relating to the classification of serial publications. Section 21A of the Commonwealth Act refers to the revocation of classifications of films or computer games that are found to contain contentious material. Section 52 is amended to apply the 14 day grace period for the display of changes to the determined markings and consumer advice for films, publications and computer games to reclassifications under section 97A and revocations of classification or consumer advice under section 22B(3) of the Commonwealth Act. Section 53 is amended to apply the 14 day grace period for the publication of changes to the determined markings and consumer advice for films, publications and computer games to reclassifications under section 97A and revocations of classification under section 22B(3) of the Commonwealth Act. Clause 13 inserts a new section 60A in the Principal Act. Section 60A creates a new power in the Director of the Classification Board to call in films for classification. Currently the director has the power to call in submittable publications (section 60), computer games (section 61) and advertisements (section 62). Section 60A provides that where the Director has reasonable grounds to believe that an unclassified film is not an exempt film and that the film is being published in Victoria (or the Director has reasonable grounds to believe that it will be published in Victoria), the Director may, by notice in writing given to the publisher of the film, require the publisher to submit an application for classification of the film. The notice is also to be published in the Commonwealth Gazette. The person given the notice has 3 business days to comply with the notice. Failure to comply is an offence, attracting a maximum penalty of 100 penalty units. 6

 


 

It is a defence to the offence of failing to comply with the notice to prove that the defendant did not intend to publish the film in Victoria or intend to cause, authorise, permit or license the film to be published in Victoria. Clause 14 amends section 61 of the Principal Act by inserting a new sub- section (1A). Section 61 currently empowers the Director to call in a computer game where the Director has reasonable grounds to believe that it is likely to contain contentious material and is being, or the Director has reasonable grounds to believe it will be, published in Victoria. The new sub-section (1A) extends the call-in power to where the Director has reasonable grounds to believe that an unclassified computer game is not an exempt computer game and is, or the Director has reasonable grounds to believe that it will be, published in Victoria. Sub-section 61(2) is amended to ensure that notice of a decision to call in the unclassified computer game under sub-section 61(1A) is published in the Commonwealth Gazette. Clause 15 inserts new sections 62A and 62B into the Principal Act. The Commonwealth Act vests a power in the Classifications Board to reclassify publications, films and computer games 2 years after their initial classification (section 39). Where the Classification Board proposes to reclassify a publication, film or computer game under section 39 of the Commonwealth Act and the publisher of the publication, film or computer game resides in Victoria or has an office in Victoria, section 62A gives the Director power, by notice in writing given to the publisher, to require the publisher to submit a copy of the publication, film or computer game for the purpose of reclassifying it. The person given the notice has 3 business days to comply with the notice. Failure to comply is an offence attracting a maximum penalty of 100 penalty units. It is a defence to the offence of failing to comply with the notice to prove that the defendant did not have a copy of the publication, film or computer game. 7

 


 

Section 62B provides that where-- · an application has been made for a review of a classification decision under the Commonwealth Act by a person other than the original applicant for classification of the publication, film or computer game concerned; and · the Classification Board or the Classification Review Board does not have a copy of the publication, film or computer game and a copy is not available to it; and · the original applicant or the publisher of the publication, film or computer game resides in Victoria or has an office in Victoria-- the Director may by notice in writing to the original applicant or publisher, require them to make a copy of the publication, film or computer game available for the purpose of the review. The person given the notice has 3 business days to comply with the notice. Failure to comply is an offence attracting a maximum penalty of 100 penalty units. It is a defence to the offence of failing to comply with the notice to prove that the defendant did not have a copy of the publication, film or computer game. Clause 16 inserts a new offence (section 57A) in the Principal Act. Under this section, a person who knowingly uses an on-line information service to publish or transmit, or make available for transmission, objectionable material that describes or depicts a person who is, or looks like, a minor under 16 engaging in sexual activity or depicted in an indecent sexual manner or context (that is, child pornography) is guilty of an indictable offence and liable to a term of imprisonment not exceeding 10 years. "On-line information service" is currently defined in section 56 of the Principal Act as being a service which permits, through a communication system, on-line computer access to or transmission of data or computer programs. This section creates a more serious offence of the intentional use of an on-line information service for the publishing, transmission or making available for transmission, of child pornography. Clause 17 inserts a transitional provision (section 87B) into the Principal Act. 8

 


 

The new section 87B provides that the new section 57A applies only to a use of an on-line information service on or after the commencement of section 16 of the amending Act. Clause 18 inserts a number of further transitional provisions into section 87B of the Principal Act. Section 87B(2) provides that the new section 40(3A) and (3B) (see clause 11 above) applies to computer games published before or after the commencement of clause 11. Section 87B(3) provides that the new sections 62A and 62B (see clause 15 above) apply to publications, films and computer games published before or after the commencement of clause 15. Section 87B(4) provides that any other amendments to the Principal Act only apply to publications, films and computer games first published on or after the commencement of the amending provision or publications, films and computer games for which an application for classification is made on or after that commencement. PART 3--AMENDMENT OF OTHER ACTS Clause 19 amends Schedule 4 of the Magistrates' Court Act 1989. Schedule 4 is amended by inserting a new clause 40 to include the new section 57A offences. This ensures that offences under section 57A of the Principal Act (which are indictable) can be heard and determined summarily. Clause 20 inserts a new sub-section (2) into section 68 of the Crimes Act 1958. Sub-section (2) provides an indemnity to members and officers of law enforcement agencies, and to their authorised assistants, from committing offences when they print or otherwise make or produce child pornography in the exercise or performance of a power, function or duty conferred or imposed on the member or officer by law. This new sub-section will ensure that police, other law enforcement agents and their assistants are not prosecuted, for example, for "printing" or "making" child pornography where such printing is necessary for the production of evidence for the 9

 


 

purpose of prosecution. This often occurs where pictures are down-loaded or digitally copied from suspect computer hard- drives for the purpose of prosecution. Clause 20 also amends section 70 of the Crimes Act 1958 by substituting sub-section (4). Sub-section (4) currently provides an indemnity to members and officers of law enforcement agencies from committing offences when they possess child pornography in the exercise or performance of a power, function or duty conferred or imposed on the member or officer by law. The amendment extends this protection to their properly authorised assistants, who may technically "possess" child pornography when collecting it from suspect computer hard- drives for the purpose of prosecution. 10

 


 

 


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