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

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2004-2005-2006-2007

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT (ADVERTISING AND OTHER MATTERS) BILL 2007

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Philip Ruddock MP)

 

 

 

 

 

CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT (ADVERTISING AND OTHER MATTERS) BILL 2007

 

OUTLINE

 

This Bill enables an advertising assessment scheme and a television series assessment scheme to be established under the Classification (Publications, Films and Computer Games) Act 1995 (Classification Act) .   Each scheme will be contained in a Commonwealth legislative instrument.

 

Schedule 1 of this Bill is part of a package of reforms which, together with amendments to State and Territory legislation and to legislative instruments under the Classification Act, will remove the prohibition on advertising unclassified films and computer games.  The increasing risk of piracy means products are often available for classification only very close to their release date.  The current prohibition, with limited exceptions only for public exhibition films, places unnecessary regulatory limitations on marketing of classifiable products.  This Bill establishes an industry based self-assessment scheme whereby the likely classification of an unclassified film or computer game is assessed by an authorised industry assessor for the purpose of advertising that film or computer game before it is classified.  Safeguards are included in the scheme to ensure consumers continue to be protected from inappropriate material. 

 

Schedule 2 of this Bill amends the classification requirements for films that are compilations of episodes of a television series that has been broadcast in Australia.  This Bill establishes an industry based self-assessment scheme whereby an application for classification of a film that is episodes of a television series may be accompanied by a report from an authorised assessor.  There is an increasing number of television series being released on Video and DVD.  Current arrangements for classification of such films are both expensive and time consuming.  The aim of this Bill is to streamline the classification process and to respond to the changing technological environment for entertainment media.  The purpose of the proposal is to reduce the cost to industry and the processing time for the Classification Board. Quality assurance processes are included in the scheme to ensure the on-going integrity of the classification process.

 

 

FINANCIAL IMPACT STATEMENT

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

It is not expected that there will be any significant financial impact of the industry assessor advertising scheme.  The television series assessment scheme is intended to result in cost reductions to industry.



NOTES ON NEW SECTIONS

 

New section 1: Short title

1.                   New section 1 specifies that the short title will be - Classification (Publications, Films and Computer Games) Amendment (Advertising and Other Matters) Act 2007.

New section 2: Commencement

2.                   Sections 1 to 3 of the Bill will commence on Royal Assent. 

3.                   Schedule 1 of the Bill will commence on the earlier of Proclamation or 12 months after Royal Assent.  The 12 month period is necessary to enable complementary State and Territory legislation to be enacted. 

4.                   Schedule 2 of the Bill will commence on the earlier of Proclamation or 6 months after Royal Assent.  This allows training and application processes to be established.

New section 3: Schedule

5.                   This new section provides that the amendments made by the Bill, when enacted, are as set out in the Schedules.

SCHEDULE 1 - Amendments relating to advertising

Classification (Publications, Film and Computer Games) Act 1995

Items 1 and 2 - Section 5 ‘Advertisement’

6.                   These new provisions update the definition of ‘advertisement’ to explicitly include advertising on the internet and exclude product merchandising including on clothing.  This change will apply to all advertising covered by the Act, (that is advertising for classified and unclassified films, publications and computer games).

7.                   The National Classification Scheme is already considered to apply to internet advertising of classifiable material.  These amendments clarify this.  As the intention of the Scheme is to ensure consumers have adequate information to make informed entertainment choices for themselves and their families, the exclusion of product merchandising such as caps, toys, drink bottles and similar products carrying logos or characters derived from films or computer games recognises that merchandising is not a primary source of classification information for consumers.

3. Section 5 ‘Decision’

8.                   This item amends the definition of ‘decision’ so that a decision of the Classification Board on the likely classification of an unclassified film or computer game is reviewable by the Classification Review Board.  The provision ensures the new assessment decisions by the Classification Board will be subject to merits review by the Classification Review Board.

4. Paragraph 5B(3)(b) ‘Exempt Film or Computer Game’

9.                   This paragraph makes a consequential amendment to the definition of an exempt film or computer game to reflect the change in policy that unclassified films and computer games can be advertised where it is done in accordance with the conditions to be set out in a new Instrument.  The effect of the amendment is that a film or computer game is not exempt from classification if it contains an advertisement for an unclassified film or computer game that has not been assessed, or has been assessed as likely to be classified M or higher.

5.  Subsection 22(1) Commensurate Audience Provisions

10.               This item makes a consequential amendment to reflect the change in policy that unclassified films and computer games can be advertised where it is done in accordance with the conditions set out in a new Instrument.  New paragraphs 22(1)(a) and (c) reflect the existing provisions, re-ordered. 

11.               The effect of the new paragraph 22(1)(b) is that a film or computer game must not be classified is it contains an advertisement for an unclassified film or computer game unless the film or computer game has been assessed either by an authorised assessor or by the Classification Board and the assessment is that the unclassified film or computer game is likely to have the same or lower classification.  The purpose of this amendment is to ensure that when advertising unclassified films and computer games together with classified films or computer games (for example trailers on DVDs and trailers or demos on computer games), the classified film or computer game has a classification that is the same, or higher, classification as the likely classification of the advertised film or computer game.

6.  Part 3 (heading)

12.               This item removes the current heading ‘Approval of Advertisements’ as it is inaccurate and replaces it with ‘Advertising’.

7.  Subsections 29(6) and (7)

13.               This item makes a consequential amendment to reflect the change in policy that unclassified films and computer games can be advertised where it is done in accordance with conditions to be set out in a new Instrument.  The new subsection prevents the Classification Board from approving an advertisement for a film or computer game that is - or is likely to be - classified RC (Refused Classification). 

8.  Subsection 30(1)(b)

14.               This item makes a makes a consequential amendment to reflect the change in policy that unclassified films and computer games can be advertised and to achieve consistency in the application of the Classification Act to films and computer games.

9. Division 2 of Part 3 (Advertising of unclassified films and unclassified computer games)  

15.               The new Part 3, Division 2 amendments remove the existing advertising exemption scheme that applies to public exhibition films.  Instead the new Part provides for the creation of a new advertising scheme for unclassified films and computer games.  These new provisions do not apply to publications. 

Subdivision A - Scheme relating to advertising

16.               New subsection 31(1) enables the Attorney-General to make a legislative instrument that determines the conditions for advertising unclassified films and computer games.  The new section is broad in scope in order to empower the Attorney -General to create a scheme similar to that in place for additional content.  Including the scheme in a legislative instrument ensures that the scheme is able to respond quickly and flexibly to developments in marketing approaches should this be required.

17.               New subsection 31(2) enables the instrument to place conditions on advertising unclassified films and computer games, including conditions about:

a.        The display of a message about classification.  (A new message advising consumers to ‘Check the Classification’ is proposed to be included in the instrument.)

b.       Limitations on advertising unclassified films or computer games together with classified material, so that the instrument may contain a ‘commensurate audience rule’.

c.        Time periods for industry to include classification information on advertisements after classification.

d.       Ensuring adequate safeguards against continued advertising of unclassified material by persons who have not complied with the scheme.

18.               New paragraphs 31(3)(a) and (b) provide that a person appropriately trained and authorised by the Director is able to make an assessment of the likely classification of a film or computer game for the purpose of advertising that film or computer game before it has been classified.  

19.               New paragraph 31(3)(c) sets out the matters that must be considered when making an assessment of the likely classification.

20.               New paragraph 31(3)(d ) enables the Director to impose barring notices on assessors and applicants for unacceptable use of the assessment scheme. 

21.               New paragraph 31(3)(e) sets out that the consequences for an Assessor of receiving a barring notice can include losing the authority to provide assessments.

22.               New paragraph 31(3)(f) empowers the instrument to provide a right of review to the Administrative Appeals Tribunal.

23.               New paragraphs 31(3)(g) and (h) ensure power exists for the Classification Board and the Director to exercise ancillary administrative functions for the proper operation of the scheme.

24.               New subsection 31(4) is an important safeguard enabling the Instrument to ensure that the scheme does not permit inappropriate advertising of unclassified films and computer games.

25.               New subsection 31(5) ensures that the instrument determining the scheme will be made after consultation with Censorship Ministers, protecting the co-operative nature of the National Classification Scheme .

26.               New section 31(6) makes it clear that the advertising scheme does not apply to material that is likely to be classified X18+ or RC.  Advertising this material will continue to be prohibited.

Subdivision B—Assessments of likely classifications of unclassified films and unclassified computer games

27.               New subsection 32(1) enables a person to apply to the Board for an assessment of the likely classification of a film or computer game for the purposes of advertising that film or computer game before classification.  It is envisaged that applicants would use this provision for an assessment in difficult cases, or where they want the assurance of the Board’s consideration, or where it is not feasible or cost effective to obtain an assessment from an authorised assessor.

28.               New subsection 32(2) sets out the formal requirements that must be met in making an application for an assessment of the likely classification of a film or computer game.

29.               New section 33 sets out the circumstances in which the Board may assess the likely classification of a film or computer game and the circumstances in which the Board may decline to assess the likely classification. 

30.               New subsection 33(6) clarifies the instrument is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003.

31.               New section 34 enables an assessment to be revoked in certain circumstances and sets out when that revocation will take effect.

32.               New section 35 provides that an applicant is entitled to a written notice of a decision of the Classification Board under new sections 33 and 34 within 30 ordinary days from the day on which the decision was made.  This is consistent with the other requirements in the Act for the Board to provide notice of its decisions.

10.  Paragraph 42(1)(b)

33.               The amendment to this paragraph includes applicants for an assessment of likely classification for advertising purposes as people who may seek merits review of a decision by the Classification Board.

11.  Subsection 87A(1)(b)

34.               This new paragraph applies the 20 business day timeframe (within which the Classification Board must a decision on an application for classification or approval of an advertisement) to include applications for an assessment of the likely classification of a film or computer game under the new section 33.

12.  Paragraph 97(c)

35.               This section sets out superseded transitional arrangements for applications for a certificate of exemption under State and Territory laws.  It therefore repealed Item 13 of the Schedule which deals with the transitional arrangements for certificates of exemption under the current provisions. 

13.  Transitional regulations

36.               This item empowers the Governor-General to make regulations dealing with the transitional arrangements that will apply to films that have a certificate of exemption for advertising purposes at the time these amendments come into force.

SCHEDULE 2 - Amendments relating to films of television series

Classification (Publications, Film and Computer Games) Act 1995

37.               Schedule 2 amendments enable an authorised assessment scheme to be established in a legislative instrument whereby a person appropriately trained and authorised by the Director is able to make recommendations to the Board about the classification of films that comprise episodes of a television series that have been broadcast in Australia.  The Board will retain responsibility for classifying the film.  If an applicant wishes, the Board’s consideration may be assisted by the assessment of an authorised assessor.

1.  Section 5 ‘Authorised television series assessor’

38.               This item inserts a new definition that is relevant to the television series assessment scheme.  It makes it clear that an ‘authorised television series assessor’ is a person authorised under section 14B(3) to prepare assessments of unclassified films that comprise episodes of a television series that have been broadcast in Australia.  .

2.  Before section 15 - Insert section 14B

39.               A key characteristic of a television series is that it is targeted to a particular consumer group and therefore generally has consistency in the impact of its content.  The effect of the definition of ‘film’ under the Classification Act is that when a collection of episodes of a television series is put onto DVD it is considered in the same way as a feature film and viewed by the Classification Board to determine its classification.  The fee for classification is calculated by reference to the total running time of the film.  A compilation of episodes of a television series may include many hours of running time.  This means classification of television series is comparatively expensive for Australian industry.  There is an increasing number of television series being released on Video and DVD.  The current arrangements for classification of such films are both expensive and time consuming.

40.               To address this issue a new section is inserted into the Classification Act.

41.               New subsection 14B(1) enables a person to submit an authorised assessment together with an application for classification of a film that comprises episodes of a television series that has been broadcast in Australia.

42.               New subsection 14B(2) sets out the formal requirements of an assessment.

43.               New subsection 14B(3) enables the Attorney-General to make a legislative instrument that determines a scheme for the classification of films that are episodes of a television series. 

44.               New subsection 14B(4) sets out the scope of the Instrument.  The new section is broad in scope in order to empower the Attorney -General to create a scheme similar to that in place for additional content.  Including the details of the scheme in a legislative instrument allows flexibility to adjust it to respond to technological advances.  Subsection 14B(4) ensures the Instrument can provide for:

a.        The requirements for making an assessment

b.       The matters to be considered in an assessment

c.        The requirements for continued authorisation and the circumstances in which such authorisation may be revoked

d.       The sanctions that may be applied to applicants who abuse the scheme including issuing ‘barring notices’

e.        The right of external appeal to the Administrative Appeals Tribunal for decisions made under the Scheme

f.        Proper function and power for the Classification Board and the Director to exercise ancillary administrative functions for the proper operation of the scheme, and

g.       The circumstances that may lead to an assessment being determined to be ‘misleading, incorrect or grossly inadequate’ under new section 21AB.

45.               New subsection 14B(5) ensures that the instrument determining the scheme will be made after consultation with Censorship Ministers, protecting the co-operative nature of the National Classification Scheme.

46.               The new subsection 14B(6) clarifies that references to episodes having been broadcast in Australia, in new subsection 14B(1). Are to services as defined in the Broadcasting Services Act 1992.

3.  Before section 22 - Insert section 21AB

47.               New section 21AB provides that the Board must revoke the classification of a television series compilation 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 television series assessment scheme and to maintain consumer confidence in the National Classification Scheme.

48.               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) or, if it did contain such information, the assessment of those elements was highly unreliable because it was 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.

49.               An everyday interpretation should be made to determine whether an assessment of the classifiable elements could be regarded as misleading, incorrect or grossly inadequate.  For flexibility, the instrument may prescribe circumstances in which such an assessment is taken to be misleading, incorrect or grossly inadequate.