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Classification (Publications, Films and Computer Games) Amendment ( Classification Tools and Other Measures) Bill 2014
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Schedule 6 Other amendments

Part 1 Amendments to the Classification » Act

« Classification » (Publications, Films and Computer Games) Act 1995

1  Section 3

After “The”, insert “main”.

2  Section 5

Insert:

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

constitutional trade or commerce means trade or commerce:

                     (a)  between Australia and a place outside Australia; or

                     (b)  among the States; or

                     (c)  between a State and a Territory; or

                     (d)  within a Territory; or

                     (e)  between 2 Territories.

3  Section 5 (after paragraph (ia) of the definition of decision )

Insert:

                    (ib)  to revoke the « classification » of a computer game under section 21AC; or

4  After section 8

Insert:

8AA   Use of markings in relation to goods other than films etc.

Using a determined marking in relation to certain goods

             (1)  A person commits an offence if:

                     (a)  the person, in trade or commerce, uses a marking in relation to goods; and

                     (b)  the marking is a determined marking; and

                     (c)  the goods are not:

                              (i)  a publication, film or computer game; or

                             (ii)  goods used to promotea publication, film or computer game that has the « classification » for that marking.

Penalty:  20 penalty units.

Using a determined marking in relation to certain services

             (2)  A person commits an offence if:

                     (a)  the person, in trade or commerce, uses a marking in relation to a service; and

                     (b)  the marking is a determined marking; and

                     (c)  the service is not for the purposes of the « classification » system provided for by this Act or a corresponding law of a State or Territory.

Penalty:  20 penalty units.

Selling etc. certain goods with a determined marking

             (3)  A person commits an offence if:

                     (a)  a determined marking is used in relation to goods; and

                     (b)  the person does any of the following with the goods:

                              (i)  imports them into Australia for sale;

                             (ii)  sells them;

                            (iii)  offers them for sale;

                            (iv)  lets them on hire; and

                     (c)  the goods are not:

                              (i)  a publication, film or computer game; or

                             (ii)  goods used to promote a publication, film or computer game that has the « classification » for that marking.

Penalty:  20 penalty units.

Extended meaning of determined marking

             (4)  For the purposes of this section, a determined marking includes a marking so closely resembling a determined marking as to be likely to be mistaken for it.

Constitutional reach

             (5)  This section has effect only if one or more of the following paragraphs applies:

                     (a)  the conduct constituting the offence occurs to any extent outside Australia;

                     (b)  the conduct constituting the offence occurs within a Territory or a Commonwealth place;

                     (c)  the goods belong to a constitutional corporation;

                     (d)  the person is a constitutional corporation;

                     (e)  the goods are provided in the course of, or intended for, constitutional trade or commerce;

                      (f)  the conduct constituting the offence is for the purposes of constitutional trade or commerce;

                     (g)  the conduct constituting the offence involves the use of postal, telegraphic, telephonic and other like services (within the meaning of paragraph 51(v) of the Constitution).

5  After subsection 14(4)

Insert:

          (4A)  Subsection (4) does not apply to an application for the « classification » of a film if the application is made only because the film became unclassified under section 21 because of a modification that consists only of a change to the title of the film.

6  Subsection 14(7)

Omit all the words from and including “to the applicant”, substitute “to the applicant stating the particulars of the disagreement”.

7  At the end of section 14

Add:

             (8)  If any of the following paragraphs applies in relation to the film, the notice under subsection (7) must also invite the applicant to make, within 14 days after receiving the notice, any additional submissions the applicant may wish to make before the Board makes a decision on the application:

                     (a)  if the film includes one classified film—the Director or the Board is of the opinion that the film would, if classified, be classified at a higher « classification » than the classified film;

                     (b)  if the film includes more than one classified film—the Director or the Board is of the opinion that the film would, if classified, be classified at a higher « classification » than the classified film with the highest « classification » ;

                     (c)  the film does not include a classified film.

8  Paragraph 14B(1)(c)

Omit “one of the episodes of the television series film”, substitute “one episode of the television series”.

9  After subsection 14B(1)

Insert:

          (1A)  The episode referred to in paragraph (1)(c) need not be included in the television series film.

10  After subsection 17(2)

Insert:

       (2AA)  Subsection (2) does not apply to an application for the « classification » of a computer game if the application is made only because the computer game became unclassified under section 21 because of a modification that consists only of a change to the title of the computer game.

11  Subsection 17(3)

Repeal the subsection, substitute:

             (3)  If:

                     (a)  the applicant is of the opinion that the game would, if classified, be classified G, PG or M; and

                     (b)  a notice under section 17C is not in force in relation to the applicant;

the applicant may also submit with the application:

                     (c)  an assessment of the computer game, signed by or on behalf of the applicant and prepared by a person authorised by the Director for the purpose; and

                     (d)  a copy of any advertisement that is proposed to be used to advertise the game.

          (3A)  An assessment under subsection (3) must:

                     (a)  describe, and report on the impact of, any classifiable elements in the game; and

                     (b)  recommend a « classification » of the game; and

                     (c)  recommend consumer advice appropriate to the game.

12  After subsection 17(5)

Insert:

             (6)  The Director must not authorise a person for the purposes of subsection (3) if a notice under section 17B is in force in relation to the person.

13  After section 17

Insert:

17A   Revocation of authorisation to assess certain computer games

             (1)  The Director may revoke an authorisation given to a person for the purpose of subsection 17(3) if the Director is satisfied that one or more of the conditions mentioned in subsection (2) apply to the person.

             (2)  The conditions are as follows:

                     (a)  the person has prepared an assessment of a computer game that contains classifiable elements that:

                              (i)  were not brought to the Board’s attention in accordance with paragraph 17(3A)(a) before the « classification » was made; or

                             (ii)  were brought to the Board’s attention in accordance with paragraph 17(3A)(a) before the « classification » was made but the assessment of the elements was misleading, incorrect or grossly inadequate;

                     (b)  if the Director has requested that the person complete further training approved by the Director in the making of assessments of computer games—the person has not completed the training;

                     (c)  the person has prepared at least 2 assessments under subsection 17(3) which contain misleading, incorrect or grossly inadequate information;

                     (d)  any other conditions prescribed by the regulations.

Note:          The regulations may prescribe circumstances in which an assessment is taken to be misleading, incorrect or grossly inadequate, or to contain misleading, incorrect or grossly inadequate information: see subsection 93(2).

17B   Barring notice to assessors of certain computer games

             (1)  The Director may give a written notice to a person if the Director is satisfied that:

                     (a)  both of the following apply:

                              (i)  the Board classified a computer game taking into account an assessment of the computer game prepared by the person;

                             (ii)  the Board has revoked the « classification » of the game under section 21A or 21AC; or

                     (b)  the person has prepared at least 2 assessments under subsection 17(3) which contain misleading, incorrect or grossly inadequate information.

Note 1:       If the Director gives a notice to a person under this subsection, the person cannot be authorised to prepare assessments of computer games while the notice remains in force: see subsection 17(6).

Note 2:       The regulations may prescribe circumstances in which an assessment is taken to contain misleading, incorrect or grossly inadequate information: see subsection 93(2).

             (2)  The notice takes effect from the date specified in the notice and continues in force for the period specified in the notice. The period must not exceed 3 years.

17C   Barring notice to applicant for « classification » of computer games

             (1)  The Director may give a written notice to a person if:

                     (a)  the person has submitted at least 2 applications that were accompanied by assessments under subsection 17(3); and

                     (b)  the assessments contained misleading, incorrect or grossly inadequate information; and

                     (c)  as a result of those assessments, the Director revoked the authorisation of the person who prepared them (see section 17A).

Note 1:       If the Director gives a notice to a person under this subsection, the person cannot submit an assessment of a computer game with an application for « classification » of the game while the notice remains in force: see subsection 17(3).

Note 2:       The regulations may prescribe circumstances in which an assessment is taken to contain misleading, incorrect or grossly inadequate information: see subsection 93(2).

             (2)  The notice takes effect from the date specified in the notice and continues in force for the period specified in the notice. The period must not exceed 3 years.

17D   Review by AAT

                   Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Director under section 17A, 17B or 17C.

14  After section 21AB

Insert:

21AC   Revocation of « classification » of computer games if assessment misleading etc.

                   The Board must revoke the « classification » of a computer game that has been classified taking into account an assessment prepared under subsection 17(3) if the Board is satisfied that:

                     (a)  the computer game contains any classifiable elements that:

                              (i)  were not brought to the Board’s attention in accordance with paragraph 17(3A)(a) before the « classification » was made; or

                             (ii)  were brought to the Board’s attention in accordance with paragraph 17(3A)(a) before the « classification » was made but the assessment of the elements was misleading, incorrect or grossly inadequate; and

                     (b)  if the Board had been aware of the matters mentioned in subparagraph (a)(i) or (ii) before the « classification » was made, it would have given the game a different « classification » .

Note:          The regulations may prescribe circumstances in which an assessment is taken to be misleading, incorrect or grossly inadequate: see subsection 93(2).

15  Section 38

Repeal the section, substitute:

38   Limit on reclassification

             (1)  If a publication, a film or a computer game is classified, the Board must not reclassify the publication, film or computer game within the period of 2 years commencing on the day the decision to classify took effect.

             (2)  If an advertisement is approved or refused approval, the Board must not approve or refuse to approve the advertisement within the period of 2 years commencing on the day the decision to approve or refuse to approve the advertisement took effect.

16  Subsection 39(1)

Omit “the Board may”, substitute “the Minister may request that the Board”.

17  Subsection 39(2)

Repeal the subsection.

18  Section 40 (heading)

Repeal the heading, substitute:

40   Notice of request to reclassify etc.

19  Subsection 40(1)

Repeal the subsection, substitute:

             (1)  If the Board is requested to reclassify a publication, a film or a computer game or reconsider a decision on an advertisement, the Director must give notice of the request, inviting submissions about the matter.

20  Paragraph 46(c)

Repeal the paragraph.

21  After subsection 48(1)

Insert:

          (1A)  The Governor-General may appoint one or more members referred to in paragraph 46(d) to be Senior Classifiers.

22  Subsection 49(1)

Omit “, the Deputy Director and the Senior Classifiers”, substitute “and the Deputy Director”.

23  Before section 87

Insert:

86   Immunity from suit

                   Criminal or civil proceedings do not lie against the following persons:

                     (a)  a member of the Board;

                     (b)  a member of the Review Board;

                     (c)  a member of staff assisting the Board or the Review Board;

in relation to anything done, or omitted to be done, in good faith by the person in connection with the performance or purported performance of functions or duties, or the exercise or purported exercise of powers, conferred by this Act.

24  Subsections 91(1) to (2)

Repeal the subsections, substitute:

Fee waiver on application

             (1)  The Minister may, on written application, waive all or part of the payment of fees payable, or notionally payable, in respect of an application under this Act if:

                     (a)  in the Minister’s opinion it is in the public interest to do so for public health or educational reasons; or

                     (b)  the body that would be liable, or notionally liable, for the fee is:

                              (i)  the Commonwealth, a State or a Territory (or an authority of one of those bodies); or

                             (ii)  an entity that is registered under the Australian Charities and Not-for-profits Commission Act 2012 ; or

                            (iii)  a not-for-profit entity that is not an ACNC type of entity; or

                     (c)  the payment is for special interest material having a limited distribution that is:

                              (i)  wholly or mainly a documentary record of an event; or

                             (ii)  of a cultural or like nature; or

                            (iii)  a short film from a new or emerging film maker;

                            and, in the Minister’s opinion, it is in the public interest to do so.

Notice of decision

             (2)  The Minister must, within 28 days after making a decision under subsection (1), notify the applicant in writing of the decision and of the reasons for the decision.

25  Subsection 91(5)

Repeal the subsection, substitute:

Review by AAT

             (5)  Applications may be made to the Administrative Appeals Tribunal for review of decisions under subsection (1).

Delegation

             (6)  The Minister may, in writing, delegate his or her power to waive fees to:

                     (a)  the Secretary of the Department; or

                     (b)  an SES employee, or acting SES employee, in the Department.

26  Before paragraph 93(2)(a)

Insert:

                    (aa)  for the purposes of paragraphs 17A(2)(c), 17B(1)(b) and 17C(1)(b)—circumstances in which an assessment of a computer game is taken to contain misleading, incorrect or grossly inadequate information; and

27  Paragraph 93(2)(a)

Omit “21AA(a)(ii) and 22E(2)(a)(ii)”, substitute “17A(2)(a)(ii), 21AA(a)(ii), 21AC(a)(ii) and 22E(2)(a)(ii)”.

28  Section 100

Repeal the section.

Part 2 Amendments to the Broadcasting Services Act

Broadcasting Services Act 1992

29  Subclauses 28(1) and (2) of Schedule 7

Repeal the subclauses, substitute:

             (1)  If content has been classified by the « Classification » Board (otherwise than because of subclause 24(1) or (2)), the « Classification » Board must not reclassify the content within the 2-year period beginning on the day the decision to classify took effect.

             (2)  After that 2-year period, any of the following may request that the « Classification » Board reclassify the content:

                     (a)  the Minister;

                     (b)  the ACMA;

                     (c)  if another person applied, under clause 22, for « classification » of the content—the other person.

30  Subclause 28(3) of Schedule 7

Omit “required to act under paragraph (1)(b)”, substitute “requested to act under subsection (2)”.

Part 3 Application and saving provisions

31  Amendment relating to use of determined markings

Section 8AA of the « Classification » (Publications, Films and Computer Games) Act 1995 , as inserted by this Schedule, applies in relation to conduct engaged in after the commencement of this item.

32  Amendments relating to contentious material statements

Subsections 14(4A) and 17(2AA) of the « Classification » (Publications, Films and Computer Games) Act 1995 , as inserted by this Schedule, apply in relation to applications for « classification » made after the commencement of this item.

33  Amendments relating to additional content

(1)       The amendment of subsection 14(7) of the « Classification » (Publications, Films and Computer Games) Act 1995 made by this Schedule applies in relation to applications for « classification » made after the commencement of this item.

(2)       Subsection 14(8) of the « Classification » (Publications, Films and Computer Games) Act 1995 , as inserted by this Schedule, applies in relation to applications for « classification » made after the commencement of this item.

34  Amendments relating to applications for television series films

The amendments of section 14B of the « Classification » (Publications, Films and Computer Games) Act 1995 made by this Schedule apply in relation to applications for « classification » made after the commencement of this item.

35  Amendment relating to computer games

The amendment of subsection 17(3) of the « Classification » (Publications, Films and Computer Games) Act 1995 made by this Schedule applies in relation to applications for « classification » made after the commencement of this item.

36  Amendments relating to assessors of computer games

(1)       Subsections 17A and 17B of the « Classification » (Publications, Films and Computer Games) Act 1995 , as inserted by this Schedule, apply in relation to a person authorised for the purposes of subsection 17(3) of that Act whether the person became authorised for that purpose before or after the commencement of this item.

(2)       Subitem (3) applies to a person who was authorised by the Director for the purposes of subsection 17(3) of the Classification (Publications, Films and Computer Games) Act 1995 immediately before the commencement of this item.

(3)       Despite the amendment made by item 11, the person continues, immediately after that commencement, to be a person authorised for that purpose.

37  Amendments relating to date of « classification » decision

(1)       The amendment of section 38 of the « Classification » (Publications, Films and Computer Games) Act 1995 made by this Schedule applies in relation to:

                     (a)  publications, films and computer games classified before or after the commencement of this item; and

                     (b)  advertisements approved or refused approval before or after that commencement.

(2)       Subclause 28(1) of Schedule 7 to the Broadcasting Services Act 1992 , as substituted by this Schedule, applies in relation to content classified before or after the commencement of this item.

38  Amendments relating to reclassification

(1)       The amendments of sections 39 and 40 of the « Classification » (Publications, Films and Computer Games) Act 1995 made by this Schedule do not apply to actions of the Board taken at the request of the Minister, or on its own initiative, before the commencement of this item.

(2)       If, before the commencement of this item, the « Classification » Board had started to take action under paragraph 28(1)(b) of Schedule 7 to the Broadcasting Services Act 1992 , the « Classification » Board may continue to take that action despite the amendment of clause 28 of Schedule 7 to that Act made by this Schedule.

39  Amendment relating to immunity

Section 86 of the « Classification » (Publications, Films and Computer Games) Act 1995 , as inserted by this Schedule, applies in relation to things done, or omitted to be done, before or after the commencement of this item.

40  Amendments relating to fee waiver

The amendments of section 91 of the « Classification (Publications, Films and Computer Games) Act 1995 made by this Schedule apply in relation to applications made after commencement of this item.