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Classification (Publications, Films and Computer Games) Amendment Bill 2007

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2004-2005-2006

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT BILL 2006

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Philip Ruddock MP)

 

 

 

 



CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT BILL 2006

OUTLINE

 

The Classification (Publications, Films and Computer Games) Amendment Bill 2006 amends the Classification (Publications, Films and Computer Games) Act 1995 , the Broadcasting Services Act 1992 and the Freedom of Information Act 1982.

 

Schedule 1 makes amendments to facilitate the integration of the Office of Film and Literature Classification into the Attorney-General’s Department.  It removes the Director’s financial powers and responsibilities for the administration of the Office of Film and Literature Classification and replaces references to that agency in legislation with more appropriate references.  It provides for Australian Public Service staff from the Attorney-General’s Department to support the Classification Board (Board) and Classification Review Board (Review Board) in executing their statutory functions.

 

Schedule 2 makes amendments to reinforce the independence of the Board and Review Board.  It provides 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 giving 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.  Consistent with ministerial responsibility, the Bill also transfers to the Minister administering the Act (currently the Attorney-General) the power to determine fee waiver principles in consultation with State and Territory Censorship Ministers.

 

Schedule 3 makes amendments to improve the operation of the National Classification Scheme and to respond to the changing technological environment for entertainment media.  It provides that additions to already classified films of descriptions or translations such as sub-titling or captioning, or of navigation functions such as interactive menus, are not considered modifications necessitating reclassification.  The Bill also provides for an additional content assessor scheme to recommend to the Board the classification and consumer advice for ‘additional content’ released with an already classified or exempt film.  Quality assurance processes are included in the scheme to ensure the on-going integrity of the classification process. 

 

Schedule 4 makes a number of miscellaneous minor amendments such as to repeal expired or redundant provisions.  The Bill also transfers from the Director of the Board to the Minister the power to determine markings to be displayed about classified material. 

 

FINANCIAL IMPACT STATEMENT

The Bill will not result in any change to the net asset position for the Commonwealth.

As amendments relate generally to changes to administrative processes, it is not expected that there will be any significant financial impact.  The additional content assessment scheme and the amendments excluding descriptions or translations and navigation functions from being modification requiring reclassification streamline the classification process and may result in cost reductions to industry as less material will require classification by the Board.



NOTES ON CLAUSES

 

Clause 1: Short title

1.       This clause sets out the title by which the Bill, when enacted, is to be cited - Classification (Publications, Films and Computer Games) Amendment Act 2006.

Clause 2: Commencement

2.       This clause provides separate commencement dates for various items of the Bill.  The Short Title, Commencement and Schedule enactment provisions in sections 1 - 3 will commence on the day on which the Bill receives Royal Assent.

3.       Amendments in Schedule 1 - Integration amendments

a.        All items in Parts 1 and 2 will commence on the earlier of Proclamation or 6 months after Royal Assent. 



This flexibility is necessary as a variety of administrative and financial arrangements must be co-ordinated to effect the integration of the Office of Film and Literature Classification into the Attorney-General’s Department.  

1.       Amendments in Schedule 2 - Amendments relating to the administrative arrangements of the Classification Board and the Classification Review Board have varying commencement dates. 

a.        Part 1, Items 2 and 8 validating Convenor actions will commence on Royal Assent.

b.       Part 1, Item 1 about the Convenor exercising State and Territory powers, items 13 and 26 about proceedings arising from the Convenor’s actions, items 16 and 25 about reviews by the Administrative Appeals Tribunal, item 19 about the timeframe for Review Board decisions, item 20 about service of notice, and items 21 to 24 about waiver of fees will commence on the earlier of Proclamation or 6 months after Royal Assent. 



This flexibility is necessary as a variety of administrative and financial arrangements, including remaking delegations and instruments, must be co-ordinated to effect these amendments which are ancillary to the integration of the Office of Film and Literature Classification into the Attorney-General’s Department.  

c.        Part 1, Items 10-12 and 15 about delegations of the Director’s and Convenor’s powers will commence on the same day as item 13 of Schedule 1 (which provides for Australian Public Service staff to assist the Boards) as they are intrinsically linked.

d.       Part 1, Items 3-6 and 17-18 about providing the Convenor with powers concerning classification certificates, notices and evidentiary certificates; and items 7, 9 and 14 about the Convenor’s power to request copies of material will commence on the earlier of Proclamation or 12 months after Royal Assent. 



The option for commencement up to 12 months after Royal Assent is necessary as these provisions either require amendments to complementary State and Territory legislation to be effective or are intrinsically linked to provisions which require such amendment.

e.        Part 2 - Application, transitional and saving provisions - will commence on Royal Assent.

1.       Amendments in Schedule 3 - Amendments to streamline the classification process have varying commencement dates.

a.        Part 1, Items 1-6 and 9-12 about the additional content assessment scheme will commence on the earlier of Proclamation or 6 months after Royal Assent. 



This flexibility is necessary as a variety of administrative arrangements, including establishing training and application processes, must be co-ordinated for this scheme to operate effectively.  

b.       Part 1, Items 7-8 about the addition of descriptions or translations and navigation functions to classified films will commence on the earlier of Proclamation or 12 months after Royal Assent. 



The option for commencement up to 12 months after Royal Assent is necessary as these provisions require amendments to complementary State and Territory legislation to be effective.

c.        Part 2 - Application, transitional and saving provisions will commence on Royal Assent.

1.       Amendments in Schedule 4 - Other amendments have varying commencement dates.

a.        All items in Part 1 contain miscellaneous and minor amendments.  They commence on Royal Assent.

b.       All items in Part 2 are about determined markings.  They will commence on the earlier of Proclamation or 12 months after Royal Assent. 



The option for commencement up to 12 months after Royal Assent is necessary as these provisions require amendments to complementary State and Territory legislation to be effective.

Clause 3: Schedule(s)

1.       This clause provides that the amendments made by the Bill, when enacted, are as set out in the Schedules.

SCHEDULE 1 - Integration amendments

Part 1 - Amendments

2.       These amendments integrate the Office of Film and Literature Classification’s functions into the Attorney-General’s Department.

Broadcasting Services Act 1992

1. Paragraphs 100 (2)(c) and 119(2)(c)

3.       These consequential amendments change references in the Broadcasting Services Act 1999 from compliance with the film classification system ‘administered by the Office of Film and Literature Classification’ to that ‘provided for by the Classification (Publications, Films and Computer Games) Act 1995’ .  There are no operational changes arising from this amendment.

4.       Section 100 includes compliance with the film classification system as something to which the Australian Communications and Media Authority may subject a subscription television broadcasting license.

5.       Section 119 includes compliance with the film classification system as a condition which may be included by Australian Communications and Media Authority in subscription broadcasting and narrowcasting class licences as a condition it considers should be imposed on the provision of services under that licence.

2. Paragraphs 123(3A)(a) and 123(3C)(a)

6.       These consequential amendments change references in the Broadcasting Services Act 1999 from applying the film classification system ‘administered by the Office of Film and Literature Classification’ to that ‘provided for by the Classification (Publications, Films and Computer Games) Act 1995 ’.  There are no operational changes arising from this amendment.

7.       Paragraphs 123(3A)(a) and 123(3C)(a) require that industry groups representing television broadcasting licensees and narrowcasters, in developing codes of practice concerning classification of programs and community standards, must apply the film classification system for the purpose of classifying films.

3. Paragraphs 89(1)(g) to (i) of Schedule 5

8.       This consequential amendment to the Broadcasting Services Act 1999 reflects the changed staffing arrangements for the Board and Review Board.  The amendment changes the listing of protected persons from officers made available under subsection 54(3) of the Classification Act which is being repealed to staff mentioned in new section 88A (below) and consultants engaged to assist the Boards.

9.       Section 89 provides that criminal proceedings do not lie against protected persons in connection with them exercising powers or functions conferred on the ACMA, the Board or the Review Board by the Online Content Scheme in Schedule 5 of the Broadcasting Services Act 1999.

Classification (Publications, Film and Computer Games) Act 1995

4. Subsection 17(5)

10.     Subsection 17(5) provides that the Director of the Board may authorise a person to assess and make recommendations on classification and appropriate consumer advice of computer games if they have completed the appropriate training.  This amendment replaces reference to training by the Office of Film and Literature Classification with training approved by the Director. 

5 and 6.  Section 52

11.     Subsections 52(2) and (3) concern the Director’s agency administration responsibilities and powers.  This amendment repeals them and removes the unnecessary reference to subsection 52(1) as a consequence of integrating the Office of Film and Literature Classification into the Attorney-General’s Department.  The financial and administrative affairs of the Board and the Review Board will be managed by officers of the Department, including entering into contracts and acquiring or disposing of property.

7 and 8.  Division 3 of Part 6 and subsection 59(1)

12.     Sections 54 and 55 concern the structure of the Office of Film and Literature Classification as a Statutory Agency for the purposes of the Public Service Act 1999 , staff assisting the Board, and the Director’s power to engage consultants.  This amendment repeals these provisions as a consequence of integrating the Office of Film and Literature Classification into the Attorney-General’s Department.  A new section 88A (below) will provide for Australian Public Service staff provided by the Attorney-General’s Department to assist the Board and the Review Board.  The Attorney-General’s Department will engage consultants as appropriate in the normal course of business.

13.     Because section 54(2) which created the separate Statutory Agency is repealed, the amendment to subsection 59(1) removes that subsection’s reference to subsection 54(2).  See the further amendment to section 59 in Schedule 2 Part 1 below.

9.  Section 67

14.     Section 67 requires the Director to provide the Minister with a report of the management of the administrative affairs of the Board and audited financial statements for the Board and Review Board.  The Director will no longer be responsible for the financial management of the resources of the Board and Review Board which are currently appropriated to the Office of Film and Literature Classification.  The amendment repeals the financial reporting aspects of the section.  The new provision will require annual reporting on the management of the administrative affairs of the Board in the same terms as for the Convenor of the Review Board under section 85. 

10 - 12.  Sections 68, 69 and 70

15.     Sections 68, 69 and 70 concern obligations to keep proper financial accounts and records, provide access to them, and have them audited by the Auditor-General.  The amendment repeals these sections as the Attorney-General’s Department will assume responsibility for the financial administration of the Board and Review Board activities as part of its regular financial management and reporting obligations.

13.  After section 88

S 88A Staff assisting the Board and the Review Board

16.     A new section 88A is inserted to provide that staff assisting the Board and the Review Board are to be public servants made available by the Secretary of the Attorney-General’s Department. 

Freedom of Information Act 1982

14 and 15.  Division 1 of Part 11 of Schedule 2 (items relating to the Office of Film and Literature Classification)

17.     Part 11 of Schedule 2 lists agencies which are exempted from particular provisions of the Freedom of Information Act 1982 in relation to specific documents.  Currently, the Board, the Review Board and the Office of Film and Literature Classification are listed in relation to exempt Internet-content documents.  After the commencement of the relevant provisions of this Bill, the Office of Film and Literature Classification will no longer exist as a separate body and its relevant functions will be performed by officers of the Attorney-General’s Department. 

18.     These amendments replace the listing for the Office of Film and Literature Classification with the Attorney-General’s Department.  The listings for the two Boards remain, recognising their ongoing status as independent bodies.

Part 2 - Application, transitional and saving provisions

16 and 17.  Transitional provisions - conditions of licences and codes of practice

19.     These provisions ensure that existing conditions to which a subscription television broadcasting license is subject, and broadcasting and narrowcasting codes of practice made under the Broadcasting Services Act 1992 that refer to the scheme administered by the Office of Film and Literature Classification continue to have effect.

18.  Transitional provision - training

20.     This provision provides that a person previously trained by the Office of Film and Literature Classification and authorised by the Director prior to the commencement of the relevant item continues to be considered to have been appropriately trained to make assessments.  Therefore, their authorisation by the Director continues to have effect.

19.  Application provision - annual report

21.     This provision recognises that the integration of the Office of Film and Literature Classification may occur during a financial year.  It provides a revised section 67 to maintain the Director’s financial reporting obligations for the part of a financial year occurring prior to the integration of the Office of Film and Literature Classification.  It requires the Director to provide financial statements for the Board and Review Board for that part of the financial year, and a report of the management of the administrative affairs of the Board for the whole year.

20.  Application provision - audit

22.     This provision provides a revised section 69 if the Auditor-General had not yet inspected and audited for the financial year in which integration occurred.  The provision requires the Auditor-General to inspect and audit, within three months of the end of the financial year in which integration occurred, the accounts and records of financial transactions and records about assets held by the Director on behalf of the Commonwealth for that part of the financial year occurring before integration.

23.     This provision ensures ongoing financial accountability of the Director in managing the Office of Film and Literature Classification for that part of a financial year occurring prior to integration.  

21.  Application provision - access to accounts and records

24.     This provision provides that section 70, which authorises the Auditor-General to access accounts and records of the Board and Review Board, applies in a revised way to provide access to accounts and records of money received and paid and assets acquired, held or disposed of on behalf of the Commonwealth until integration.

25.     Again, this ensures ongoing financial accountability of the Office of Film and Literature Classification for that part of a financial year occurring prior to integration.  

22.  Application provision - exempt documents

26.     This provision protects exempt documents held by the Attorney-General’s Department from relevant Freedom of Information Act 1982 provisions regardless of when they were created.  That is, if they were protected as documents under the Office of Film and Literature Classification’s previous listing, they maintain that protection once listed under the Attorney-General’s Department.

SCHEDULE 2 - Amendments relating to the administrative arrangements of the Classification Board and the Classification Review Board

27.     These measures are ancillary to the integration decision.  The Act currently confers administrative and financial powers of both the Board and the Review Board on the Director of the Board who is concurrently the Director of the Office of Film and Literature Classification.  These amendments will delineate powers and responsibilities to implement the full independence of the Board and the Review Board and remove the anomaly whereby the Review Board is reliant on the Director of the Board for some of its administrative functions. 

Part 1 - Amendments

Classification (Publications, Film and Computer Games) Act 1995

1.  Section 4

28.     This amendment enables the Convenor to exercise powers and perform functions relating to classification that are conferred under an arrangement between the Commonwealth and the States and Territories.  This is consistent with providing the Convenor of the Review Board the statutory powers to manage the administrative functions of the Review Board independently of the Board.

2.  Subsection 22C(2)

29.     This amendment extends to the Convenor the protection given by section 22C to decisions made or actions taken by the Board, Director and Review Board on the basis of an otherwise invalid classification decision by the Board.

30.     The Classification Act was amended in 2004 to validate classification decisions made by the Board or Review Board further to deficient or defective applications for classification by law enforcement authorities.  It also validated decisions made or any later action taken by the Board, the Review Board or the Director in respect of the decisions that were validated by the amendments.

31.     However, it appears to have been an oversight that the Convenor was not included when section 22C was first inserted.  Such a provision necessarily operates retrospectively.  This is appropriate and justified.  No person will be adversely affected.  The amendment merely remedies technical errors in the application process. Such technical errors cast no doubt on the correctness of the classification decision. 

3.  After subsection 25(1)

32.     This amendment requires the Convenor to issue a classification certificate for material classified by the Review Board.  This is consistent with providing the Convenor of the Review Board the statutory powers to manage the administrative functions of the Review Board independently of the Board.

33.     It also clarifies that, when the Board has classified material and the Review Board has later classified the same material on review, the classification certificate issued by the Review Board is to prevail.  The Board’s certificate is taken to be revoked on the same day the Review Board’s decision takes effect.  This is on the day on which notice of the Review Board’s decision is given under section 26.  This may not be the same day as when the Review Board issues its classification certificate.

4.  Subsection 26(3)

34.     This amendment requires the Convenor to give a notice of a Review Board decision to a wider range of people than is currently required.  This is consistent with providing the Convenor of the Review Board the statutory powers to manage the administrative functions of the Review Board independently of the Board.

35.     The amendment requires the Convenor to give notice of decisions of the Review Board to the applicant, and to persons who in the Convenor’s opinion have an interest in the matter, whether as publisher or otherwise.  The range of people who may have a relevant interest in a Review Board decision include the original applicant if they are not the applicant for review; a publisher or distributor; the Minister; or persons who made submissions in the review.  The provision is limited by the requirement that the Convenor hold the opinion that a person has an interest.

36.     This power differs marginally from that of the Director who is required to give notice to the applicant, or, if there is no applicant or the applicant is a different person from the person on whose application the original decision was made (for example, in the case of a reclassification after 2 years), to persons who in the Director’s opinion have an interest in the matter, whether as publisher or otherwise.

37.     This difference reflects the fact that classification by the Review Board will always be on application but the applicant may differ from the original applicant for classification by the Board.  Therefore, both the applicant and other parties may have an interest.  In addition, the Board may classify without an applicant - for example, a reclassification after 2 years under section 39 - and an interested person may need to be identified by the Director.

38.     Various headings are also inserted to the subsections within section 26 to assist the reader.

5 and 6.  Subsection 27(1) and at the end of section 27

39.     These amendments are consequential to the separation of administrative functions and powers of the Review Board and Convenor from those of the Board and Director.  These amendments operate together so that there are separate provisions in similar terms in section 27 for applications to each of the Director and the Convenor for copies of classification certificates or notices of decisions made by the respective Boards. 

40.     Headings are also inserted to the subsections within section 27 to assist the reader.

7.  Subsection 44A(1)

41.     This amendment replaces the Director with the Convenor as the person who may require the relevant person to provide a copy of a particular publication, film or computer game for the purpose of the Review Board conducting a review of that material.  This is consistent with providing the Convenor of the Review Board the statutory powers to manage the administrative functions of the Review Board independently of the Board.

8.  Subsection 44B(2)

42.     As for section 22C(2) above, this amendment extends the protection given by section 44B to decisions made or actions taken by the Board, Director and Review Board on the basis of an otherwise invalid classification decision to decision made or action taken by the Convenor.

43.     The Classification Act was amended in 2004 to validate classification decisions made by the Board or Review Board further to deficient or defective applications for classification by law enforcement authorities.  It also validated decisions made or any later action taken by the Board, the Review Board or the Director in respect of the decisions that were validated by the amendments.

44.     However, it appears to have been an oversight that the Convenor was not included when section 44B was first inserted.  Such a provision necessarily operates retrospectively.  This is appropriate and justified.  No person will be adversely affected.  The amendment merely remedies technical errors in the application process. Such technical errors cast no doubt on the correctness of the classification decision. 

9  Paragraph 53(a)

45.     This amendment removes the listing of section 44A from section 53(a) which provides that the Director may exercise powers conferred by State and Territory legislation that correspond to the listed sections of the Commonwealth Act.  This is because the amendment (above) to section 44A gives the Convenor the power to request copies for review, and new section 77A (below) enables the Convenor to exercise powers conferred by a State or Territory law corresponding to section 44A.  Once the Convenor not the Director has the power under section 44A to request copies for review and the States and Territories make consequential amendments to their legislation to refer to the Convenor, the listing of section 44A in the Director’s powers in section 53(a) is inappropriate.

10, 11 and 12.  Section 59

46.     Amendments to section 59 provide greater flexibility for the Director to delegate to members of the Board and staff various powers relating to the Director’s and the Board’s activities.  This will provide improved opportunity to effectively manage the administration of the Board’s resources and workloads.

47.     Amendments to subsection 59(1) clarify that the Director may delegate to another Board member the Director’s powers under the regulations as well as the Act. 

48.     Amendments to subsection 59(2) provide that the Director may also delegate to staff any of the Director’s power under the regulations.  This includes, for example, the power to determine partial refunds of fees.  This is an administrative action requiring the Director to determine the amount of refund due, having regard to criteria that are specified in the regulations.  It is unnecessary that this power be exercised by the Director in person. 

49.     The amendment also updates reference to the staff to whom powers may be delegated under subsection 59(2) as those mentioned in the new section 88A.  That section provides that staff assisting the Board and the Review Board are to be public servants made available by the Secretary of the Attorney-General’s Department.

50.     The amendments to subsection 59(3) is consequential on the redrafting of subsection 59(2), and preserves the existing effect of subsection 59(3).

51.     See the further amendment to section 59 in Schedule 1 Part 1 above.

13.  Section 71

52.     This amendment and new section 92A below are consequential to the separation of administrative functions and powers of the Review Board and Convenor from those of the Board and Director.  These amendments operate together to provide that judicial or other proceedings relating to anything done by the Convenor as well as by the Director may be brought by or against the Commonwealth.

53.     Section 71 is repealed.  It provides that any judicial or other proceedings relating to the administration of the Board or the Review Board, including anything done by the Director, may be instituted by or against the Commonwealth.  This effectively removes it from Part 6 - The Classification Board; Division 5 - Administrative Provisions.  Instead, new section 92A in Part 8 - Miscellaneous is in almost identical terms except that it adds ‘anything done by the Convenor’.

14.  At end of Division 2 of Part 7

S 77A Powers of Convenor under State / Territory laws

54.     New section 77A provides that the Convenor may exercise powers conferred on him or her by a law of a State or the Northern Territory that corresponds to section 44A.  This is consistent with providing the Convenor of the Review Board the statutory powers to manage the administrative functions of the Review Board independently of the Board.

55.     Section 44A, once amended, will provide that the Convenor may require the relevant person to provide a copy of a publication, film or computer game for the purpose of the Review Board conducting a review of that material.  Section 44A refers to material in the Australian Capital Territory.  State and Northern Territory legislation confers the equivalent power for material in each jurisdiction.  The States and the Northern Territory will be making relevant changes to their complementary legislation to change ‘Director’ to ‘Convenor’ to come into effect in conjunction with the commencement of this provision.

15.  Before section 80

S 79A Delegations

56.     New section 79A will replicate amended section 59 to provide flexibility for the Convenor to delegate to members of the Review Board and staff various powers relating to the Convenor’s and the Review Board’s activities.  This will provide opportunity to effectively manage the administration of the Review Board’s resources and workloads.

57.     Under subsection 79A(1), the Convenor may delegate to another Review Board member the Convenor’s powers under the Act and the regulations. 

58.     Under subsection 79A(2), the Convenor may also delegate to staff any of the Convenor’s power under the regulations.  Although the Convenor currently has no power under the regulations, it is intended that the regulations will be amended to provide that the Convenor has the power to provide partial refunds of fees relevant to applications for review.  This would be an administrative action requiring the Convenor or delegate to determine the amount of refund due, having regard to criteria that would specified in the regulations, as is the case for the Director now.  It is unnecessary that this power be exercised by the Convenor in person. 

59.     Under subsections 79A(2) and (3), the Convenor may delegate to staff the Review Board’s powers under the Act.  Commensurate with delegation of the Board’s powers under the Act, this power may only be exercised in relation to classification of publications, films or computer games or approval of advertisements for such material, and only if the Review Board has determined by resolution that the delegation is desirable for the efficient running of the Review Board. 

16.  Section 86

60.     Section 86 is repealed.  It provides for application to the Administrative Appeals Tribunal for review of a decision of the Director to waive all or part of the fees payable under section 91.  This effectively removes it from the beginning of Part 8 - Miscellaneous.  Instead, a new subsection 91(5) is inserted at the end of section 91.  It is in almost identical terms except that it includes a decision of the Convenor. 

17 and 18.  At the end of subsection 87(1) and at the end of section 87

61.     These amendments are consequential to the separation of administrative functions and powers of the Review Board and Convenor from those of the Board and Director.  These amendments operate together so that section 87 includes separate provisions for applications to the Director for certificates about actions taken or not taken under the Act by the Director or Board, and to the Convenor for certificates about actions taken or not taken under the Act by the Convenor or Review Board.

62.     Headings are also inserted to the subsections within section 87 to assist the reader.

19.  After section 87A

S 87B Review Board to make decisions within a specified time

63.     New section 87B provides the timeframe within which the Review Board must make a decision on an application for a review of a decision.  It replicates the existing timeframe for classification decisions by the Board except to the extent that the Review Board must make a decision within 20 business days or ‘such other period’ as is prescribed by the regulations rather than ‘such shorter period’.  There are currently no regulations prescribing another period.  However, it is appropriate to provide flexibility to prescribe a longer time period if necessary.  Merits review of decisions often involves extra work over and above the Board’s classification process, such as seeking written submissions and conducting hearings. 

20.  Paragraphs 89(b) and (c)

64.     This amendment is consequential to the separation of administrative functions and powers of the Review Board and Convenor from those of the Board and Director.  It simply adds ‘or Convenor’ to provide that a notice may be served under the Classification Act by sending it by post to the residential or business address last known to either the Convenor or the Director, or by leaving it with a person apparently over 16 and living or employed at the residential or business address last known to either the Convenor or the Director.

21, 22, 23 and 24.  Subsections 91(1), 91(1A) and 91(2)

65.     These amendments are consequential to the separation of administrative functions and powers of the Review Board and Convenor from those of the Board and Director.  These amendments operate together so that section 91 includes separate provisions in similar terms  for the Director and the Convenor to waive fees payable under the Act in respect of applications to, respectively, the Board or Director, or the Review Board or the Convenor (subsections 91(1) and 91(1A)).

66.     New section 91(1B) replaces previous section 91(1A) and provides that the Director or Convenor may only waive payment in accordance with written principles determined by the Minister in consultation with the participating Ministers.  Currently the principles to be applied when waiving fees are determined by the Director and approved by the Minister in consultation with State and Territory Ministers.  Consistent with ministerial responsibility, the amendment transfers the power to determine fee waiver principles from the Director of the Board to the Minister, in consultation with State and Territory Censorship Ministers.

67.     Subsection 91(2) is amended to include an obligation on the Director or the Convenor, as the case may be, to notify the applicant of a decision.

68.     Headings are also inserted to the subsections within section 91 to assist the reader.

25.  At the end of section 91

69.     New subsection 91(5) at the end of section 91 provides for application to the Administrative Appeals Tribunal for review of a decision of the Director or the Convenor to waive all or part of the fees payable under section 91.  This amendment is consequential to the separation of administrative functions and powers of the Review Board and Convenor from those of the Board and Director.   It is in almost identical terms to the repealed section 86 except that it includes a decision of the Convenor. 

26.  After section 92

S 92A Proceedings arising out of administration of Board or Review Board

70.     New section 92A provides that any judicial or other proceedings relating to the administration of the Board or the Review Board, including anything done by the Director or Convenor, may be instituted by or against the Commonwealth.  It is in almost identical terms to the repealed section 71 except that it adds ‘or the Convenor’.

Part 2 - Application, transitional and saving provisions

27.  Application provisions

71.     (1) This provision applies the protection in sections 22C and 44B to decisions made or actions taken by the Convenor on the basis of an otherwise invalid classification decision made before or after commencement of the provision.

72.     (2) The effect of this provision is that the Convenor may provide classification certificates and notices of decision for classifications made on or after the commencement regardless of whether the application for the relevant review was made before or after then .

73.     (3) This provision continues in force the Director’s powers to provide copies of classification certificates and notices of decision.

74.     (4) This provision provides that, on or after commencement, the Convenor may in the ACT require a copy of the relevant material regardless of whether the application for the relevant review was made before or after the commencement.

75.     (5) This provision provides that proceedings may still be brought by or against the Commonwealth regardless of whether the pertinent thing occurred before or after the commencement.

76.     (6) This provision provides that only decisions of the Director made up to commencement are reviewable by the AAT under section 86 as from that point they will be reviewable under section 91.

77.     (7) This provision provides for separate powers for the Director and Convenor to deal with applications for evidentiary certificates made on or after commencement.

78.     (8) This provision provides that provisions relating to the time period in which the Review Board must make a decision apply to applications made on or after commencement, and, in the event of failure to meet that timeframe, for reporting in the annual report starting with the financial year in which commencement occurred.

79.     (9)             This provision provides for separate powers for the Director and Convenor to deal with fee waiver applications made on or after commencement.

80.     (10)           This provision provides that decisions of the Director or the Convenor made on or after commencement are reviewable by the AAT under section 91.

28.  Transitional provision - fee waiver principles

81.     This provision provides that the fee waiver principles determined before the commencement of the relevant item continue to have effect in relation to the Director’s power to waive fees as if they were made under the relevant new provision.

28.  Transitional provision - powers of the Director

82.     This provision preserves the power of the Director with respect to the States or the Northern Territory until they have substituted the Director with the Convenor under their corresponding laws.

SCHEDULE 3 - Amendments to streamline the classification process

Part 1 - Amendments

Classification (Publications, Film and Computer Games) Act 1995

83.     Amendments to section 5 and 14 and new sections 21AA, 22D, 22E, 22F, 22G, 22H and 22J introduce an additional content assessment scheme whereby a person appropriately trained and authorised by the Director is able to make recommendations to the Board about the classification and consumer advice for additional content released with already classified or exempt films.  The Board will retain responsibility for classifying the film.  Its consideration will be assisted by the assessment of an additional content assessor.

1 - 5.  Section 5

84.     These amendments insert essential new definitions or make amendments to existing definitions relevant to the additional content assessment scheme.

‘Additional content’

85.     A new definition for ‘additional content’ is established.  It is an inclusive definition intended to provide indications of the type of material that is to be considered additional content for the purposes of the additional content assessment scheme.  It expressly excludes some material from being additional content.

86.     The new definition lists some material that would be additional content.  This is not an exhaustive list.  Additional content might also include featurettes or short films which take their meaning from the classified or exempt film but would not be marketable independently.  For example, a classified fictional feature film may include a storyline based around a particular place, item or thing which may or may not be real.  A distributor may later produce a featurette inventing a ‘history’ or ‘explanation’ or ‘sequel’ to that place, item or thing for marketing with the already classified film on a storage device such as a disc.  This could also be considered to be ‘additional content’.

87.     The definition expressly states that additional content does not include a ‘work’ as amended.  Therefore, the following are not ‘additional content’:

- audio-visual productions that appear to be both self-contained and produced for viewing as a distinct unit such as spin-offs from a movie which could be marketed independently

- television programmes, and

- computer games that are produced for playing independently.

88.     In addition, a ‘film’ as defined in the Classification Act expressly states that it does not include a computer game or an advertisement.  Therefore, it is clear that a computer game or advertisement cannot be the additional content submitted with a classified or exempt film for classification under the additional content assessment scheme.

89.     The definition also provides that the regulations may prescribe other material which is or is not additional content for the purposes of the additional content assessment scheme.  The ability to prescribe something in the regulations is designed to provide flexibility into the future.  For example, it may be necessary at a later stage to clarify or limit further the type of material that is regarded as additional content to respond to industry and marketing developments.

Additional content assessor

90.     A new definition for ‘additional content assessor’ is established.  It refers to a person authorised by the Director under new section 22D which in turn sets up requirements for authorisation.

Classifiable elements

91.     A new definition for ‘classifiable elements’ is established.  It makes it clear that they are the same as those provided in the guidelines as they are determined and in force at any particular time.  These are currently themes, violence, sex, language, drug use and nudity.

Decision

92.     The definition of ‘decision’ for the purposes of the Classification Act is amended to include a decision to revoke the classification of a film in the circumstances set out in new section 21AA.  The effect is a decision is reviewable by the Review Board.

Work

93.     The definition of ‘work’ is amended to provide that it includes a cinematic composition that appears to be produced for viewing as a discrete unit as well as appears to be self-contained.  This change overcomes any ambiguity or uncertainty arising from the previous formulation of the definition which required the composition to be objectively produced for viewing as a discrete entity.  The definition also clarifies that ‘work’ includes a television programme.

6.  At the end of section 14

94.     The effect of the definition of ‘film’ in the Classification Act is that, when a film which has previously been classified is released with additional material - for example, when a feature movie is released with extra material on a storage device such as a DVD - this new release is a new ‘film’ which is unclassified.

95.     To address this issue, this amendment inserts three new subsections to provide special rules for the classification of films which comprise classified films, exempt films and additional content. 

96.     New subsection 14(5) provides that an applicant may submit with an application for classification of a film an assessment of any additional content prepared by an additional content assessor.  There are a number of safeguards to protect the integrity of the classification scheme as a whole.  Paragraph 14(5)(a) provides the threshold for using the scheme as being films that comprise a combination of classified or exempt films and additional content.  If an applicant submits material that does not meet the hurdle of comprising only those elements, applying the definitions in section 5 as relevant, the additional content scheme is not available to them.  Paragraph 14(5)(b) provides that the additional content assessment scheme would not apply to films that would, in the applicant’s opinion, be classified at X18+ or be refused classification.  Paragraph 14(5)(c) ensures that applications using the additional content scheme cannot be made by a person who has been given notice by the Director because of the poor quality of assessments provided with previous applications (below).

97.     New subsection 14(6) provides that the assessment must, in the case of a film containing at least one already classified film, describe and report on the impact of any classifiable elements in the additional content that are at the same or higher level as the highest classification or, in the case of a film not containing any already classified film, describe and report on the impact of all classifiable elements in the additional content.  This ensures that all classifiable elements at the same or a level higher than the existing classification are identified for the Board’s consideration.  The assessment must include a recommendation of the classification and appropriate consumer advice and any other matter prescribed in the regulations.  The ability to prescribe something in the regulations is designed to provide flexibility into the future.  For example, use of the additional content assessment scheme may later reveal issues that, for the protection and information of the consumer, should be brought to the attention of the Board, whose responsibility it remains to classify the new film.

98.     New subsection 14(7) is in similar terms to existing section 17(4) for the computer games assessment scheme.  It gives the opportunity to the applicant to make any supporting submissions in the event the Board or Director disagrees with the recommended classification.

7.  After section 14

S 14A Films consisting only of classified films

99.     New section 14A 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.  In the past, such compilations have generally been on separate discs.  However with changing technology, there is increasingly the capacity to put a number of already classified films onto one storage device.  Without amendment, the Classification Act arguably requires a new application and classification of a compilation on a single storage device as it constitutes a new ‘film’.  This amendment responds to changing technology to limit regulatory burden or cost to industry and to ensure a commonsense approach to technological developments. 

8.  At the end of subsection 21(2)

100.     This amendment to subsection 21(2) provides that the addition of descriptions or translations, and navigation functions to classified films are not considered modifications requiring reclassification under section 21. 

101.     ‘Navigation functions’ add functionality and useability without fundamentally changing or adding to the content of the film per se.  Such functions are intended to cover any form of navigation tool used by a viewer to move around a film on a storage device such as a video disc.  Navigation functions include menus which allow the user to make choices using screen icons or a list of options or possible selections.  They include simple functions such as ‘play’ and ‘fast forward’ but also include the ability to choose between scenes of the movie, or between alternative options on the storage device such as additional content on the film (see new section 14(6) ff) or different movies on the same storage device (see new section 14A).

102.     Descriptions or translations such as subtitles, captions, dubbing and audio descriptions provide interpretation of, and therefore access to, already classified films for people with language barriers, visual or hearing impairments and the ageing population.  They do not provide new content per se but allow the audio and visual elements of an already classified film to be accessed by those who are unable to otherwise access them. 

103.     Descriptions or translations cover a wide variety of tools to give information about the visual or audio content in another format.  They include subtitling in the same or another language; dubbing of speech in another language; closed or open captioning of dialogue and sound effects such as a phone ringing, baby crying or dog barking; audio descriptions of the visual content that describe actions, facial expressions, scene changes, and other visual effects such as who laughed or fired the gun; and on screen sign language interpretations.

104.     Descriptions or translations should accurately render the original visual or audio content in another format.  Paragraph 21(2)(d)(ii) provides a safeguard to require descriptions or translations to be accurate in rendition - they must not provide a different meaning or nuance which would be likely to cause the film to receive a higher classification.

9.  After section 21A

S 21AA Revocation of classification of films containing additional content

105.     New section 21AA provides that the Board must revoke the classification of a film in specified circumstances which demonstrate that the assessment on which the classification was based was highly unreliable.  This is an important safeguard to ensure the integrity of the additional content assessment scheme and to maintain consumer confidence in the classification of films containing additional content.

106.     It covers situations where the Board has made a classification on the basis of an assessment that did not contain information about classifiable elements (as defined) that were at the same or higher levels than the already classified film, or, if it did contain such information, the assessment of those elements was highly unreliable because it was either misleading, incorrect or grossly inadequate .  The Board is required to revoke the classification if it would have made a different classification decision had it been aware of those matters.

107.     An everyday interpretation should be made to determine whether an assessment of the classifiable elements could be regarded as misleading, incorrect or grossly inadequate. 

108.     For flexibility, regulations may prescribe circumstances in which such an assessment is taken to be misleading, incorrect or grossly inadequate.  See new subsection 93(2).

10.  After Division 2 of Part 2

Division 2A - Assessments of additional content

109.     New Division 2A sets out provisions about additional content assessors and applicants using the additional content assessment scheme.

Subdivision A - Additional content assessors

S 22D Additional content assessors

110.     New section 22D provides that the Director may authorise a person to prepare assessments of additional content if they have undertaken the appropriate training and if they are not subject to a notice issued by the Director under section 22F (see below) barring them from being an additional content assessor.  This is a quality control mechanism to ensure that assessors understand the classification system and have not previously acted improperly in making assessments or failing to meet training requirements.

22E Revocation of additional content assessor status

111.     New section 22E provides that the Director may revoke an additional content assessor’s authorisation in certain circumstances.  Together with sections 22F and 22H (see below), it is an important safeguard to ensure the integrity of the additional content assessment scheme and preserve community confidence in classifications which are based on assessments by additional content assessors.

112.     It is a permissive power and only exercisable if the Director is satisfied of one or more conditions.  They are either that the assessor has prepared an assessment of additional content but not revealed its classifiable elements as required by subsection 14(6) or that the assessor’s assessment of the classifiable elements was misleading, incorrect or grossly inadequate ; or that the additional content assessor has not completed further training as requested by the Director; or that the additional content assessor has prepared two or more assessments which contain misleading, incorrect or grossly inadequate information. 

113.     The section also provides for the regulations to prescribe other conditions.  This is to provide the flexibility to introduce specific indicators of an additional content assessor’s behaviour that warrants revocation of the authorised status should use of the additional content assessment scheme indicate such was appropriate or necessary.

114.     An everyday interpretation should be made to determine whether an assessment of the classifiable elements could be regarded as misleading, incorrect or grossly inadequate or whether an assessment could be regarded as containing misleading, incorrect or grossly inadequate information. 

115.     As the consequences of revocation of an additional content assessor’s authorisation are potentially serious, it is expected that an assessment would need to exhibit a high degree of ineptitude, be made in bad faith, or include a highly unreliable evaluation of the classifiable elements to be regarded as misleading, incorrect or grossly inadequate.

116.     For flexibility, 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 new subsection 93(2).

117.     The section operates so that a person whose authorisation has been revoked may at any time, if they otherwise fulfil the requirements of section 22D, be authorised again.

22F Barring notice to additional content assessor

118.     New section 22F escalates sanctions for the unacceptable use of the additional content assessment scheme by a person who is, or has been, an additional content assessor.  It establishes a process whereby, in conjunction with section 22D, the Director can effectively bar a person from being an additional content assessor for a period of up to 3 years.  Section 22F empowers the Director to issue a notice on certain conditions.  Section 22D prevents the Director from authorising a person if a notice under section 22F is in force against that person.

119.     Like section 22E, the power to issue a notice is permissive and only exercisable if the Director is satisfied of one or more conditions.  They are either that a classification of a film, which was classified taking into account an assessment by the person of its additional content, has been revoked under section 21AA; or that the person has prepared two or more assessments which contain misleading, incorrect or grossly inadequate information; or that the additional content assessor has met another condition prescribed by the regulations.

120.     The sanction imposed by this section is more serious than those in section 22E.  In view of that, it is expected that the Director’s powers under section 22F would be used rarely.  It must be clear that the conduct of the person is sufficiently serious to warrant these stronger sanctions.

121.     As a permissive power, there is no requirement that a person be barred if a condition’s minimum trigger point is satisfied.  For example, even if a person has prepared two assessments with misleading, incorrect or grossly inadequate information, the Director will need to consider whether the nature of the errors was significant enough to necessitate issuing a notice barring that person.  At all times, the Director will be expected to exercise discretion and consider the nature and severity of the person’s action in the circumstances.

122.     Unlike section 22E, this section applies both to current additional content assessors and to people who have been but are no longer assessors, perhaps because their authorisation has been revoked because they have not completed required further training.

123.     Like section 22E, an everyday interpretation should be made to determine whether an assessment could be regarded as containing misleading, incorrect or grossly inadequate information.  For flexibility, regulations may prescribe circumstances in which an assessment is taken to contain misleading, incorrect or grossly inadequate information.  See new subsection 93(2).

22G Review by AAT

124.     As a revocation made under section 22E and a notice issued under section 21AA each has the potentially serious consequence of a person being deprived of their current employment, section 22G provides for application to the Administrative Appeals Tribunal for review of a decision of the Director under either of those sections.

Subdivision B - Barring notice to applicants

22H Barring notice to applicant

125.     New section 22H provides serious sanctions for the unacceptable use of the additional content assessment scheme by a distributor, publisher or other industry applicant.  It establishes a process whereby, in conjunction with subsection 14(5), the Director can effectively bar someone from using the additional content assessment scheme for a period of up to 3 years.  Section 22H empowers the Director to issue a notice on certain conditions.  Paragraph 14(5)(c) prevents an applicant from submitting an assessment of additional content with an application for classification of a film if a notice under section 22H is in force against that person.

126.     The power to issue a notice under section 22H is a permissive power and only exercisable if the applicant has submitted at least two applications for classification containing assessments with misleading, incorrect or grossly inadequate information, which led to the Director revoking the authorisation of the additional content assessors who prepared them.

127.     Like section 22F, this is a serious sanction and expected to be used rarely.  At all times, the Director will be expected to exercise discretion and consider whether the nature and severity of the person’s action are sufficiently serious to warrant these strong sanctions in the circumstances.

128.     An everyday interpretation should be made to determine whether an assessment could be regarded as containing misleading, incorrect or grossly inadequate information.  For flexibility, regulations may prescribe circumstances in which an assessment is taken to contain misleading, incorrect or grossly inadequate information.  See new subsection 93(2).

22J Review by AAT

129.     As a notice issued under section 22H has the consequence of a person being unable to use the additional content assessment scheme, section 22J provides for application to the Administrative Appeals Tribunal for review of a decision of the Director under that section.

11 and 12.  Section 93 and at the end of section 93

130.     A new subsection 93(2) provides that, in addition to the general regulation making power now found in subsection 93(1), regulations may prescribe, for the purposes of the additional content assessment scheme, circumstances in which an assessment of classifiable elements is to be taken to be misleading, incorrect or grossly inadequate, and circumstances in which an assessment of additional content is taken to contain misleading, incorrect or grossly inadequate information. 

131.     This provision provides the flexibility to address particular issues or to set out particular matters should they arise in the future.  It applies to provisions relating to the revocation of the classification of films containing additional content in section 21AA, the revocation of additional content assessor status in section 22E, issuing a barring notice to additional content assessors in section 22F, and issuing a barring notice to applicants in section 22H.

132.     New subsection 93(3) makes it clear that it is not intended that the regulations should prescribe exhaustively or in any way limit the circumstances in which an assessment either is misleading, incorrect or grossly inadequate ; or contains misleading, incorrect or grossly inadequate information.

Part 2 - Application, transitional and saving provisions

13.  Application of amendments

133.     (1)           This provision relates to the additional content assessment scheme.  It applies the new and amended definitions - ‘additional content’, ‘additional content assessor’, ‘classifiable elements’, and ‘decision’, as well as the application and assessment process to applications for films made on or after commencement.

134.     (2)           This provision applies the new definition of ‘work’ to applications for classification of both films and computer games on or after commencement.

135.     (3)           This provision allows compilations to be treated as if each classified film was on a separate disc, regardless of whether the classified films were classified before or after commencement.

136.     (4)           This provision provides that the addition of descriptions or translations, and navigation functions to classified films after commencement are not considered modifications requiring reclassification under section 21, regardless of whether the classified film was classified before or after commencement.

SCHEDULE 4 - Other Amendments

Part 1 - Amendments commencing on Royal Assent

Classification (Publications, Film and Computer Games) Act 1995

1.  Subsection 14(3)

137.     This amendment removes the requirement for separate applications to be made for classification of otherwise identical public exhibition films and sale/hire films.  This is consistent with the objective of standardising classifications regardless of platform. 

2.  Application provision

138.     The application provision removes the requirement for separate classification for applications made on or after commencement.

3.  Paragraph 29(4)(b)

139.     This amendment implements the requirements of the Convention on the Rights of the Child by changing the requirement for the Board to refuse to approve an advertisement if it depicts in an offensive way a person who is or looks like a child under 16 to a person who is or appears to be a child under 18. 

4.  Application provision

140.     The application provision ensures the amended provision applies to advertisements submitted for approval or review on or after commencement.

5.  At the end of section 47

141.     This amendment allows the regulations to prescribe if required a higher maximum number of members of the Board.  The Classification Act currently limits the maximum number of Board members to 20, including the Director and Deputy Director. 

142.     This amendment provides greater flexibility into the future, so that the membership of the Board may be increased should the workload require it.  The Board’s workload is dependent on industry lodging applications and is to an extent seasonal.  The Act permits the appointment of temporary Board members as a means of dealing with high workload periods.  However, this is limited by the statutory maximum.  The ability to prescribe a higher maximum number would ensure that increased workloads can be managed in high workload periods within the statutory timeframes for making decisions.  As classification operates on a cost recovery basis, the costs for any additional Board members would be covered by the amount of fees recovered.

143.     The current requirements that members of the Board be appointed by the Governor-General, that the membership be broadly representative of the Australian community and that the Minister consult with the States and Territories before recommending the appointment of a member are retained. 

6.  At the end of subparagraph 53(b)(i)

144.     This amendment provides for the Director to exercise powers conferred by States and Territories to approve organisations in relation to computer games.

145.     Under State and Territory enforcement legislation, the Director may approve an organisation and exempt its activities that relate to films (eg a film festival exemption).  However, the display of certain types of interactive images more readily defined as computer games raises classification issues.  Some State legislation has been amended to cover organisations and activities or functions that relate to computer games.

7.  Paragraph 73(c)

146.     This amendment allows the regulations to prescribe if required a higher maximum number of members of the Review Board.  The Classification Act currently limits the maximum number of Review Board members to eight members plus the Convenor and Deputy Convenor. 

147.     The current requirements that members of the Review Board be appointed by the Governor-General, that the membership be broadly representative of the Australian community and that the Minister consult with the States and Territories before recommending the appointment of a member are retained. 

8 and 9.  Subsections 95(1), (2) and (3)

148.     These amendments repeal expired transitional provisions dealing with members of the former Board and Review Board.

Part 2 - Amendments commencing on Proclamation

Classification (Publications, Film and Computer Games) Act 1995

 

10, 11 and 12.  Section 5 (definition of determined markings ) and subsections 8(1) and (1A)

149.     Amendments to section 8(1) transfer from the Director to the Minister the power to determine markings for each type of classification and the manner in which they are to be displayed.  The provision is also amended to remove the requirement to issue a notice in the Gazette and to state expressly the Minister would determine the markings by legislative instrument.  This ensures transparency of the law and its central location in the Federal Register of Legislative Instruments.

150.     New subsection 8(1A) will require the Minister to consult with participating Ministers - the State and Territory Censorship Ministers.

151.     The definition of determined markings in section 5 is also amended to remove reference to the markings being determined by the Director.

13.  Transitional provision - determined markings

152.     These amendments provide that the determination in force before the commencement of these items continues to have effect as if it was determined under the new provision.

14.  At the end of Division 1 of Part 2

8A Notice about classifications

153.     New section 8A provides the Minister may approve a form for a notice about classification.  The note explains that State and Territory legislation requires sellers and exhibitors of classified material to display a notice about classifications where the material is sold or exhibited.  The notice sets out and explains the markings determined under section 8, and so is appropriately approved by the Minister.