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Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) 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 (TERRORIST MATERIAL) BILL 2007

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Philip Ruddock MP)

 

 

 

 



CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT (TERRORIST MATERIAL) BILL 2007

OUTLINE

 

The Classification (Publications, Films and Computer Games) Amendment (Terrorist Material) Bill 2007 amends the Classification (Publications, Films and Computer Games) Act 1995 (Classification Act) .

 

Schedule 1 makes amendments to the Classification Act to require that publications, films or computer games that advocate the doing of a terrorist act must be classified as Refused Classification.  The amendments take effect the day after Royal Assent.

 

The Bill adopts the meanings of ‘advocate’ and ‘terrorist acts’ from the Criminal Code Act 1995 by adaptation of language or direct reference.  It is intended that the meanings of these terms in the Classification Act remain consistent with their meaning in the Criminal Code.

 

FINANCIAL IMPACT STATEMENT

 

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

As the amendments merely add a criterion for consideration by the Classification Board and Classification Review Board when classifying material, it is not expected that there will be any significant financial impact. 



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 (Terrorist Material) Act 2007.

Clause 2: Commencement

2.                   This clause provides that the Act will commence on the day after it receives Royal Assent.  It avoids any problem for decisions made on the day of, but earlier in time than, Royal Assent.

Clause 3: Schedule 1

Item 1.  Section 5 (definition of submittable publication )

2.              This item amends the definition of submittable publication to include unclassified publications that, having regard to new provision 9A, contain depictions or descriptions that are likely to cause the publication to be classified Refused Classification.

Item 2.  Section 9

3.              This item amends section 9 to provide that the general requirement to classify publications, films and computer games in accordance with the National Classification Code and classification guidelines is subject to the requirement in new section 9A that material that advocates terrorist acts must be classified as Refused Classification.

Item 3.  After section 9 - new section 9A

4.              This item inserts a new section that requires that publications, films or computer games that ‘advocate’ the doing of a ‘terrorist act’ - as defined - must be classified as Refused Classification by the Classification Board and the Classification Review Board. 

5.              The amendment is not intended to exclude from the Boards’ consideration the matters in section 11 of the Act.  However, the Board and Review Board need not refer to the National Classification Code or guidelines if section 9A applies.

3.                   The Bill adopts the meanings of ‘advocate’ and ‘terrorist acts’ from the Criminal Code - by adaptation of language or direct reference.

4.                   The definition of ‘advocates’ is adapted directly from the definition of ‘advocates’ in section 102.1(1A) of the Criminal Code where it applies to the activities of an organisation.  It is intended that ‘advocate’ should have the same meaning in the Classification Act when applied to a publication, film or computer game as in the Criminal Code when applied to an organisation.  ‘Advocate’ covers direct or indirect advocacy, in the form of counselling, urging or providing instruction on the doing of a terrorist act.  It also covers direct praise of a terrorist act where there is a risk that such praise might lead a person (regardless of his or her age or any mental impairment) to engage in a terrorist act.  This is intended to capture material that has the capacity to lead the impressionable to engage in a terrorist act. 

5.                   The advocacy would need to be about doing a terrorist act , not merely expressing generalised support of a cause.  The definition recognises that some communications about doing a terrorist act are inherently dangerous because they could inspire a person to cause harm to the community.  This could be the case where it may not be possible to show a person had any intention that a specific terrorism offence be committed or to communicate the material to any particular person.

6.                    The term ‘terrorist act’ is given the same meaning as in section 100.1 of the Criminal Code .  Any amendments made to that section will automatically apply to the definition of ‘terrorist acts’ for the purposes of the Classification Act.  It is defined in the Criminal Code to mean a specified action or threat of action that is made with the intention of advancing a political, religious or ideological cause and to coerce or influence by intimidation an Australian or foreign government or intimidate the public or a section of the public.

7.                    Subsection 100.1(2) of the Criminal Code sets out the types of actions or threats of action that can constitute a ‘terrorist act’.  They include actions or threats that, if carried out, involve serious harm to a person or serious damage to property, endanger life, create a serious risk to the health or safety of the public or a section of the public, or are designed to seriously interfere with, seriously disrupt, or destroy, an electronic system.  Electronic systems include information systems, telecommunications systems, financial systems, and systems used for essential government services, essential public utilities and transport providers.

8.                   However, subsection 100.1(3) of the Criminal Code expressly excludes advocacy, protest, dissent or industrial action which is not intended to cause serious harm, death, endangerment of life, or serious risk to the health or safety of the public.

9.                   Subsection 100.1(4) of the Criminal Code makes it clear that a reference in the definition to a person, property or the public includes those within or outside Australia.

10.               In addition, the definition in proposed new subsection 9A(4) specifically states that actions and threats of action comprise a ‘terrorist act’ regardless of where the action occurs, the threat is made or the action, if it were carried out, would occur.  This is consistent with the application provision in section 100.4(1)(a) of the Criminal Code.  However, other application provisions in Part 5.3 of the Criminal Code are not relevant for the purposes of the Classification Act.

11.               The new section is not intended to restrict the legitimate exercise of freedom of speech or to prevent film-makers or authors or publishers from dealing with contentious subject matter in an informative, educational, entertaining, ironical or controversial way. 

12.               Proposed new subsection 9A(3) clarifies that the provision is not intended to capture material whose depiction or description of a terrorist act could reasonably be considered to be done merely as part of public discussion or debate or as entertainment or satire .  The subsection clarifies that material, which does no more than contribute to public discussion or debate or provide entertainment or satirical comment, is not material which should be classified as RC under this provision.  Examples could include investigative journalists’ work, historical analyses, material that might appear to glorify war or battle (including ‘factional’ or fictional accounts of war, insurgency or resistance), satirical pieces, and popular culture movies.  On the other hand, material containing content which goes further and advocates the doing of terrorist acts, for example by directly praising terrorist acts in circumstances where there was a risk of leading a person to do similar, runs the risk of inspiring someone to commit a terrorist act.  Such material would be required to be classified RC. 

Item 4.  Application

13.               This item makes it clear that the new provisions apply to all decisions made by the Board and Review Board on or after the day after Royal Assent, regardless of whether and when an application for classification was received. 

14.               If the Board had made a decision prior to the commencement of new section 9A, the Review Board must still apply that new section 9A.