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Tuesday, 11 May 2004
Page: 22793


Senator IAN MACDONALD (Minister for Fisheries, Forestry and Conservation) (4:58 PM) —I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT BILL 2004

The Classification (Publications, Films and Computer Games) Amendment Bill (the Bill) will make a number of procedural amendments to the Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act).

The Classification Act is part of the Commonwealth's contribution to the national cooperative classification scheme agreed to by the Commonwealth and the States and Territories, which commenced on 1 January 1996. All State and Territory Censorship Ministers have indicated their support for the changes proposed by the Bill.

The national classification scheme assists consumers to choose films and computer games by assigning a classification and consumer advice to classified products.

The Bill merely renames the existing classification types and does not affect the criteria used to classify films and computer games. Classification decisions are made in accordance with section 11 of the Classification Act, and with the National Classification Code and the classification guidelines.

Both the National Classification Code and the classification guidelines will require amendment to reflect the changes to the names of the classification types. However, the changes will be procedural in nature and will not otherwise affect the criteria used to classify films and computer games.

The amendments will improve the operation of the national classification scheme in two main ways.

First, the amendments will implement common classification types for films and computer games.

These amendments follow and complement recent changes to the classification guidelines agreed to by the Commonwealth and the States and Territories.

The combined Guidelines for the Classification of Films and Computer Games, which came into operation on 30 March 2003, replaced the previously separate Guidelines for the Classification of Films and Videotapes and Guidelines for the Classification of Computer Games.

Submissions to the review of the previous guidelines indicated that members of the public sought clear and easily understandable classification categories and supported the creation of a single set of classification symbols for films and computer games.

Similar conclusions can also be drawn from research commissioned by the Office of Film and Literature Classification (OFLC).

In a study conducted in March 2002, 71% of people agreed that the same classification symbols should be used for films and computer games. This research also indicated that there are poor levels of awareness of the computer games classification scheme. For example, the study found that only 43% of the population are aware that computer games are classified. This contrasts dramatically with 97% awareness of the film classification symbols.

Bearing in mind the results of this research and the fundamental policy objective of a universal classification scheme, the Bill introduces common classification types for films and computer games based on the well known film classifications. This will significantly assist consumer decision-making regarding classified products.

The new common classification types for films and computer games will be known as G, PG, M, MA15+ and RC. R18+ and X18+ classifications will apply to films only.

The second major purpose of the Bill is the creation of a more effective distinction between those classification types that are advisory in nature (being G, PG and M) and those to which legally enforceable restrictions apply (being MA15+, R18+ and X18+).

This distinction will be achieved by the removal of age references from the unrestricted classification types and use of age references for the restricted classification types only. This distinction will also assist consumers to identify the relative hierarchy of classification types.

Given the substantial difference in the material permissible in the advisory and restricted classifications, this amendment is expected to be of great assistance to consumers, particularly parents. It will also help address some of the confusion currently experienced about the difference between the M and the MA classification types.

The Attorney-General's Department and the OFLC have consulted extensively about the proposed changes. Since November 2003, consultation meetings have been held with consumers (including parents), film exhibitors, film distributors, computer games distributors, home entertainment distributors, generalist retailers, specialist retailers, the video, DVD and computer games rental industry and television. The Government responded to the issues raised during that consultation process.

The Bill makes consequential amendments to the Broadcasting Services Act 1992 (the Broadcasting Services Act). Provisions of the Broadcasting Services Act apply the classification system administered by the OFLC to television Codes of Practice, internet content and datacasting.

Within the Broadcasting Services Act there are references to particular classification types. Such references are amended by the Bill to ensure consistency between the OFLC classifications and their application and use on media regulated under the Broadcasting Services Act.

The amendments to the Broadcasting Services Act do not change any of the regulatory requirements under that Act. For example, restrictions on the times that material classified MA can be shown on television will apply to both programs already classified as MA as well as those that will, after the commencement of the proposed amendments, be classified MA15+.

Following passage of the Bill, the Director of the Classification Board intends to determine, under section 8 of the Classification Act, new markings for films and computer games.

The markings prescribe the classification symbol and description that goes with each of the various classification types and specify the requirements about the display of classification information. This includes, for example, the size, location and duration of symbols, classification descriptors and consumer advice on classified products and related advertising.

In recognition of the potential impact of these changes on industry, particularly cinema, retailers and video stores, it is proposed that the new Determination of Markings will enable products classified prior to the commencement of the proposed amendments to carry the old classification marking or the new classification marking. Any products classified after commencement of the proposed amendments will be required to carry the new markings.

During development of the Bill, most stakeholders expressed strong support for a common classification system across all media. This was consistent with OFLC research findings. Therefore the Government is keen to see a common approach based on the Determination of Markings issued by the Director.

In particular, for computer games, films and programs classified MA15+, the Government expects consumers to be informed that such products are not suitable for people under the age of 15—which is the defining feature of this classification under the National Classification Code.

The Government also expects the OFLC and television to continue to work on the development of consistent messages.

The OFLC will conduct national education activities to ensure the community understands the new classification types. These activities will raise awareness of all the classification types.

Under the national classification scheme, the enforcement of classification decisions is the responsibility of the States and Territories. Accordingly, each jurisdiction has enacted complementary classification enforcement legislation.

Implementation of the proposed amendments will also involve amendments to State and Territory legislation. It is anticipated that the State and Territory legislation will follow the passage of this Bill.

Consequential changes will need to be made in the National Classification Code as part of the transition to common classification types. These amendments have been agreed in principle by Censorship Ministers and will be formalised prior to the Bill's commencement. In accordance with the requirements of the 1995 Intergovernmental Agreement on Censorship, the amendments to the Code will then be tabled in both Houses of Parliament.

The principal purpose of the national classification scheme is to inform the choices of consumers. The simple amendments made by this Bill, in conjunction with public education activities by the OFLC, will go a long way toward better meeting the important objectives of the scheme.

—————

SURVEILLANCE DEVICES BILL 2004

Australia's law enforcement personnel are always striving to stay ahead of the criminals.

Our police forces rely on a variety of tools to investigate, catch and prosecute criminal groups which are becoming ever more organised and sophisticated.

One increasingly important tool is the use of surveillance devices.

A surveillance device can be anything from an ordinary set of binoculars, a tiny microphone or camera hidden in a suspect's vehicle to a piece of software to capture the input of information to a computer.

The current surveillance device laws available to Commonwealth law enforcement are not up the job of 21st century policing.

This Bill began as an initiative of the Leaders' Summit on Terrorism and Multi-Jurisdictional Crime held on 5 April 2002.

A Joint Working Group of Commonwealth and State and Territory officials was established by the Standing Committee of Attorneys-General and the Australasian Police Ministers' Council.

The Joint Working Group developed comprehensive model laws for all Australian jurisdictions to improve the effectiveness of cross-border criminal investigations in the areas of controlled operations, assumed identities, protection of witness identity and electronic surveillance.

These model laws were released in a public discussion paper to solicit feedback from groups and individuals on the suitability of these proposed powers.

This Bill implements the electronic surveillance model Bill, tailoring it to the needs of the Commonwealth.

The Surveillance Devices Bill 2004 will allow the Commonwealth to consolidate and modernise its now somewhat outdated surveillance device laws and provide law enforcement agencies with access to the surveillance tools necessary to protect Australians and to investigate crime.

The Bill allows officers of the Australian Federal Police, the Australian Crime Commission or a State or Territory police force investigating a Commonwealth offence to use a greater range of surveillance devices.

The Bill will allow for data surveillance devices, optical surveillance devices and tracking devices in addition to listening devices which are currently permitted.

To restrict Commonwealth law enforcement to the use of devices which are only capable of recording spoken words is simply not adequate.

As criminal and terrorist groups make use of sophisticated technology, our police must be able to match and better them.

This Bill does not prohibit the use of surveillance devices, but rather establishes a structured process for the use of surveillance devices, where such use would ordinarily be prohibited under a State or Territory law.

The Bill also allows for a surveillance device warrant to be issued in relation to a wider range of offences.

The current listening device provisions allow for a warrant to obtained only in respect of a very limited number of specified offences.

For example, the current listening device provisions make no reference to terrorism offences, people trafficking and child sex tourism.

This Bill proposes that, in line with the electronic surveillance model Bill, a surveillance device warrant will be available for any Commonwealth offence, or State offence with a federal aspect, which carries a maximum penalty of at least three years imprisonment.

This offence threshold ensures that an appropriate balance is struck between the public interest that law enforcement investigate serious offences and the privacy interests of individual Australians.

Two other types of offences are also specified as offences for which a warrant may be obtained.

These are offences against the Financial Transaction Reports Act 1989, which relate to the failure to declare the import or export of money in excess of A$10,000 and operating a bank account in a false name.

These are included because they are frequently indicative of more serious underlying criminal conduct.

Various offences against the Fisheries Management Act 1991are also included to assist Australia in the logistically difficult task of protecting the fisheries resources in the Australian Fishing Zone.

The Bill will also allow surveillance device warrants to be issued where a child recovery order has been issued by the Family Court to assist with the location and safe recovery of any child who is subject to an order.

Depending upon the type of device involved, the Bill will require that either a warrant or a police authorisation be obtained.

Less intrusive surveillance may be carried out without a warrant.

There is nothing unusual about this.

Police, throughout our history and across jurisdictions, have engaged in certain types of surveillance without a warrant.

For example, this might include using a pair of binoculars to watch a group of terrorist suspects scout a location for a possible attack.

This is routine police work and must not be subject to unnecessary restrictions which would destroy police effectiveness.

The power contained in this Bill for police to conduct such surveillance is arguably not necessary, however, it has been included here to clarify the law on this issue.

Importantly, the Bill makes clear that, where police surveillance is more intrusive, a warrant or internal authorisation must be obtained.

For example, where optical surveillance involves entry upon private land, a full warrant would be needed, to be issued either by a federal judge or a nominated Administrative Appeals Tribunal member.

Under this Bill, tracking devices can also be used by law enforcement officers without a warrant but with the authorisation of a senior officer of their agency where it does not involve entry onto private land or interference with the interior of a vehicle.

An officer who may authorise use of a tracking device must be at least a senior executive officer (or of Superintendent rank in State or Territory police forces) who has been authorised in writing by the Commissioner.

An internal authorisation, rather than a full warrant, is permissible in these cases because of the lower level of intrusion involved.

The Bill also permits emergency authorisations to be given by a senior executive officer of the law enforcement agency to a law enforcement officer for the use of a surveillance device in circumstances that are characterised by urgency.

The Bill provides for three such situations: where there is an imminent threat of serious risk to a person or substantial damage to property, to recover a child the subject of a recovery order, and, where there is a risk of the loss of evidence in relation to important specified Commonwealth offences, including terrorism, serious drug offences, treason, espionage and aggravated people smuggling.

The Bill brings the extra-territorial use of surveillance devices into a legislative frame-work for the first time.

The technical expertise of Australian law enforcement, particularly the AFP, has been used to great effect in this region and elsewhere, in cooperation with foreign Governments.

For example, Australian expertise in a variety of fields, in conjunction with the Indonesian police, was critically important to the investigation of the 2002 Bali bombings.

Where Australian law enforcement wish to use surveillance devices overseas, they will now need to do so subject to an Australian warrant which will bring this use under the record-keeping and reporting requirements of Australian law.

The Bill sets out the requirements for permission from the relevant foreign Governments and the limited circumstances in which extra-territorial surveillance can take place without such permission.

Generally speaking, the exceptions relate to use of surveillance devices on foreign-flagged vessels in the waters around Australia.

These extra-territorial provisions will enable Australia to more effectively tackle crime beyond our shores and in particular, will assist with the ecologically sustainable management of Commonwealth fisheries.

The extra-territorial use of surveillance devices will also complement recently introduced extraterritorial offences that allow the AFP to investigate Commonwealth offences offshore with the permission of the foreign country.

These provisions are in accordance with international law.

In recognition of the privacy implications of this Bill, the Bill imposes a range of strong accountability measures.

The most intrusive types of surveillance must be subject to the scrutiny of a judge or AAT member before the surveillance begins, or, in the case of an emergency authorisation, within two business days after the authorisation has been given.

The subsequent use, disclosure or communication of material gathered by, or relating to, a surveillance device is subject to stringent restrictions.

For example, it is an offence to communicate such material unless it is covered by one of the exceptions.

And record-keeping requirements ensure that all documents relevant to surveillance device use under warrant or authorisation must be kept to establish a proper compliance paper-trail.

Chief Officers of law enforcement agencies using Commonwealth warrants and authorisations must submit detailed reports, both after a warrant or authorisation has expired and also annually.

The Bill also imposes a duty on the Chief Officers to destroy surveillance device material when it is not longer relevant to one of the permitted purposes in the Bill.

The Bill contains strong powers for the Commonwealth Ombudsman to inspect law enforcement agencies.

The Ombudsman must report on a six-monthly basis to the Attorney-General who in turn must table these reports in Parliament.

Importantly, the Ombudsman has the power to compel law enforcement officers to answer questions or produce relevant documents.

This Bill will greatly increase the capacity of Australian law enforcement agencies to investigate serious offences, including terrorism, while maintaining an appropriate respect for the privacy of all Australians.

—————

WORKPLACE RELATIONS AMENDMENT (AWARD SIMPLIFICATION) BILL 2002

Australia's Workplace Relations system needs progressive, evolutionary change.

Despite falls in unemployment, it remains the duty of this Government through Parliament to do whatever we reasonably can to create jobs.

Reforms since 1996 have resulted in fewer strikes, lower inflation, higher productivity and lower interest rates. This Government has helped Australian families improve their living standards with more choice and more disposable income.

The reforms to awards in this bill will continue to maintain a safety net of minimum wages and conditions to protect the low paid and disadvantaged in the work force.

The Government is now in a position to introduce a further single issue bill drawn from the More Jobs, Better Pay bill 1999.

The award simplification process under the 1996 Act has been beneficial to employers and employees. Since July 1998 over 1,400 obsolete awards have been set aside, and over 1,000 have been simplified.

Award simplification has established a fairer and more streamlined safety net of minimum wages and conditions of employment. It has also facilitated agreement making and more productive workplaces.

It is now appropriate for the Parliament to enact measures for further targeted simplification. Overly complex and restrictive awards hinder agreement making at individual workplaces and act as a barrier to continued employment growth.

This bill amends the Workplace Relations Act to tighten and clarify allowable award matters. Provisions will be removed which duplicate other legislative entitlements, or which are more appropriately dealt with at the workplace.

This bill will more clearly define and specify allowable award matters. For example, redundancy pay will only relate to genuine redundancy, and not to resignation by an employee. The range of matters currently referred to as `other like forms of leave' will be more closely specified and the bill clarifies matters that are isolated from an award.

The current provisions of section 89A which allow matters that are incidental to the specified allowable award matters and necessary for the effective operation of the award are amended to include only matters which are essential for the purpose of making a particular provision operate in a practical way. This bill will ensure that awards maintain a safety net system but one that is appropriately streamlined.

I commend the bill to the Senate.

Debate (on motion by Senator Crossin) adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.