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Classification (Publications, Films and Computer Games) Amendment (Online Games) Bill 2011

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2010 - 2011

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT (ONLINE GAMES) BILL 2011

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Justice

the Honourable Brendan O’Connor MP)



CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDENT (ONLINE GAMES) BILL 2011

 

GENERAL OUTLINE

 

This Bill amends the Classification (Publications, Films and Computer Games) Act 1995 (Cth) (the Classification Act) to address uncertainty about the classification laws for mobile phone and online games.  This Bill inserts a new category of exempt online games into the Classification Act which removes the requirement for mobile phone and online games to be classified.

 

Mobile phone and online games are regulated under the National Classification Scheme (NCS).  The NCS is a cooperative scheme between the Commonwealth, States and Territories.  Procedures for classification are contained in the Classification Act, and provisions dealing with not having material classified and the enforcement of classification decisions are contained in State and Territory legislation.

 

Consumers now have access to an increasing number and range of computer games on a variety of platforms including on mobile devices and other network services.  The NCS was not established to cater for the classification of these types of computer games.  Presently, the significant majority of these games are not classified prior to being made available to the public in breach of offences contained in State and Territory enforcement legislation.  The Classification Board in its present form could not sustain the administrative burden that would be imposed on it if all mobile phone and online games were submitted for classification.  This would also impose a very significant financial burden on industry.  Industry has expressed concern about this regulatory uncertainty and asked Government to clarify the present legal requirements for the classification of mobile phone and online games. 

The exemption will not apply to computer games that are likely to contain ‘refused classification’ material which would offend against the standards of decency, morality and propriety generally accepted by reasonable adults.  Existing protections against this category of material contained in Commonwealth, State and Territory legislation will continue to apply.

A number of other regulatory protections will remain in place.  Under the Classification Act any person may submit a computer game to the Classification Board for classification upon payment of a prescribed fee.  Under the Broadcasting Services Act 1992 (Broadcasting Services Act) individuals may lodge a complaint with the Australian Communications and Media Authority (the ACMA) about mobile phone and online games reasonably suspected of containing prohibited material (material likely to cause the computer game to be classified M or above).  The ACMA investigates complaints and refers material to the Classification Board for classification if deemed appropriate.  In addition, the Director of the Classification Board will retain the power to call-in any computer game for classification if it is reasonably suspected to contain contentious material (material likely to cause the computer game to be classified M or above), or if it is suspected that the computer game is not an exempt computer game. 



This proposal is an interim reform intended to remain in place for a period of two years.

It is anticipated that long-term reforms to address this issue will be established following the review of the NCS by the Australian Law Reform Commission, due to report in January 2012.

FINANCIAL IMPACT STATEMENT

 

The amendments in this Bill have no financial impact on Government revenue.



NOTES ON CLAUSES

 

Clause 1: Short Title

 

This clause provides that when the Bill is enacted, it is to be cited as the Classification (Publications, Films and Computer Games) Amendment (Online Games) Act 2011 .

 

Clause 2: Commencement

 

This clause provides that the Act will commence on Royal Assent.

 

Clause 3: Schedule

 

This clause provides that the Schedule to the Bill will amend each Act set out in that Schedule in accordance with the provisions set out in the Schedule.

 

 



Schedule 1 - Amendments

Classification (Publications, Films and Computer Games) Act 1995

Subsection 5B(2) of the Classification Act contains an existing category of exempt computer game.  This is a computer game that forms part of or is included in computer software of a business, accounting, professional, scientific, or educational type.  Subsection 5B(3) sets out a number of exceptions to the exemption including paragraph 5C(3)(d) which excludes a computer game from exemption if it contains material that is likely to cause the computer game to be classified M or a higher classification. 

This Bill introduces a new category of exempt computer game—exempt online game—into the Classification Act.  Proposed subsection 5B(2) identifies these two separate categories of exempt computer games — the existing category and the new category.  Each category of exempt computer games has its own set of exceptions to the exemption, set out in subsection 5B(3) for the existing category of exempt computer game, and in proposed subsection 5C(2) for the new category of exempt online games.

This proposal does not change the definition of computer game in section 5A.

 

Item 1 - amends section 5

 

Item 1 inserts a definition of the term ‘computer game’ in section 5 Definitions.  This term is defined in section 5A.  However, a reference to all terms defined in the Act should be included in section 5.

 

Item 2 - amends section 5

 

Item 2 inserts a definition of the term ‘exempt online game’ in section 5 Definitions.  This term is defined in section 5C.  However, a reference to all terms defined in the Act should be included in section 5.

 

Item 3 - amends section 5

Item 3 inserts a definition of the term ‘mobile device’ in section 5 Definitions.  The term ‘mobile device’ means ‘a device that is designed to run a mobile operating system.’  This term is used in proposed subparagraph 5C(1)(a)(i) to define one of the two categories of exempt online games.

It is intended that the definition of the term ‘mobile device’ include a range of different wireless devices which are designed to run a mobile operating system.  A ‘mobile operating system’ is an operating system that controls a mobile device.  This excludes operating systems designed to control a desktop computer or a laptop, as the operating system that runs these types of devices is not a mobile operating system.  Examples of devices designed to run a mobile operating system are smart phones, personal digital assistants (PDA), and tablet computers.  A smartphone is a high-end mobile phone offering advanced computing capability and internet connectivity. A PDA is a personal information manager often with internet connectivity.  A tablet computer is a lightweight portable computer, primarily operated via a touch screen.  A tablet computer is larger than a mobile phone or PDA, with a screen typically between seven to 12 inches in size, which provides a broad range of applications and internet connectivity.   Some netbooks (which are small laptops) are capable of running a mobile operating system.  These devices will also qualify as a mobile device.

 

Item 4 - repeals subsection 5B(2) and inserts a new subsection 5B(2)

Item 4 introduces a new definition of ‘exempt computer game’ in subsection 5B(2) which replaces the previous subsection.  This definition establishes two separate categories of exempt computer games. 

Paragraph 5B(2)(a) re-enacts the existing definition of ‘exempt computer game’.  The Bill does not seek to change that definition.  It provides that an exempt computer game is a game that forms part of, or is included in, any of five categories of software listed in the table set out under subsection 5B(2), namely, business, accounting, professional, scientific, or educational software.  A computer game that qualifies as an ‘exempt computer game’ under paragraph 5B(2)(a) is subject to the exceptions to the exemption listed in paragraphs  5B(3)(a) - (d).

 

Paragraph 5B(2)(b) introduces a new category of exempt computer game called ‘exempt online game’.  This term is defined in proposed section 5C.  Subsection 5B(2) also establishes that applications for classification are not required for exempt computer games, although they may be made.  This means that exempt computer games are exempt from classification.

 

Item 5 - amends section 5B(3)

 

Item 5 replaces the words ‘or computer game’ with the words ‘or a computer game referred to in paragraph (2)(a)’.  This makes the exceptions to exemption listed in paragraphs                      5B(3)(a) - (d) apply only to the existing category of exempt computer games defined in subsection (2)(a).  This amendment will ensure that the existing exceptions to exemption applying to exempt computer games (other than the new category of exempt online games) contained in paragraphs 5B(3)(a) - (d) will remain in place unchanged.

 

Item 6 - inserts a new section 5C

 

Item 6 inserts a new section 5C which deals with exempt online games.

 

Subsection 5C(1) defines ‘exempt online game’.  This definition includes two different categories of computer game. Subsection 5C(1) also establishes that the definition of ‘exempt online game’ is subject to subsections 5C(2), (3), and (5).

 

Paragraph 5C(1)(a) defines the first category of exempt online games.  This definition is intended to cover computer games which are available on the internet and can only be played once they have been downloaded and installed on a mobile device.  This covers games that are played on mobile phones, PDAs, and tablet computers (for example, mobile apps which are games).

 

To qualify as an exempt online game the computer game must satisfy both limbs of the definition.  The first limb is set out in subparagraph 5C(1)(a)(i) and the second limb is set out in subparagraph 5C(1)(a)(ii). 

 

To satisfy subparagraph 5C(1)(a)(i) the computer game must only be available by means of a ‘content service’.  This means that the computer game can only be accessed and played if it is delivered by means of a content service.  A content service is a service that delivers content by means of a ‘carriage service’, or allows end users to access content using a ‘carriage service’.  The term ‘content service’ is defined in clause 2 of schedule 7 of the Broadcasting Services Act.  The term ‘carriage service’ is defined in section 7 of the Telecommunications Act 1997 as a service for carrying communications by means of guided and/or unguided electromagnetic energy.    The inclusion of the requirement that the computer game be ‘only available’ in this way is intended to exclude from exemption under this limb those computer games that have a substantially similar online and offline edition.  If a computer game is available in substantially similar online and offline editions it will not be covered by the exemption and both editions will require classification before being sold or otherwise made available to the public.  This will ensure that there is consistency in the approach to the classification of computer games that are available in substantially similar online and offline forms.

 

To satisfy subparagraph 5C(1)(a)(ii) the computer game must only be able to be played on a mobile device onto which it has been installed.  This requirement is intended to narrow the definition of the first limb of exempt computer games to those computer games which can only be played on a mobile device, and only once they have been installed on the device.  This is intended to exclude computer games which are available by means of a content service and can be played without a mobile device.  Such games are a type of online game which are the subject of the second limb of the definition.  The term ‘mobile device’ is defined in section 5.

 

Paragraph 5C(1)(b) defines the second category of ‘exempt online games’.  This definition is intended to cover those computer games that are played while using an internet carriage service.

 

To satisfy subparagraph 5C(1)(b)(i) the computer game must only be available by means of a ‘content service’.  This means that the computer game can only be accessed and played if it is delivered by means of a content service.  The inclusion of the requirement that the computer game be ‘only available’ in this way is intended to exclude from exemption under this limb those computer games that have a substantially similar online and an offline edition.  If a computer game is available in substantially similar online and offline editions it will not be covered by the exemption and both editions will require classification before being sold or otherwise made available to the public.  This will ensure that there is consistency in the approach to the classification of computer games that are available in substantially similar online and offline forms.

 

To satisfy subparagraph 5C(1)(b)(ii) the computer game must only be able to be played by the player using an internet carriage service.  This requirement is intended to narrow the definition of the second limb of exempt computer games to those games that can only be played online.  If a computer game contains any aspect that can be played offline it will be excluded from the second limb of the definition.

 

Subsection 5C(2) sets out exceptions to the exemption for exempt online games.  Paragraph 5C(2)(a) establishes that a computer game is not an ‘exempt online game’ if it contains an advertisement that has been refused approval.  Section 29 deals with approval of advertisements. 

 

Paragraph 5C(2)(b) establishes that a computer game is not an ‘exempt online game’ if it contains an advertisement for a film, or for a computer game, that has been refused classification, or is unclassified but likely to be refused classification.  This means that an exempt online game may contain an advertisement for a film or computer game of any classification excluding those films or computer games that are refused classification, or are unclassified but likely to be refused classification.

 

Paragraph 5C(2)(c) establishes that a computer game is not an ‘exempt online game’ if it contains material that is likely to cause it to be refused classification.  This means that relevant provisions relating to computer games that are likely to be refused classification contained in Commonwealth, State and Territory laws apply to these computer games.

 

Subsection 5C(3) establishes that a computer game that is classified is not an exempt online game.  This subsection makes it clear that an computer game that may have been an exempt online game will lose its status as an exempt online game if it is classified.  Exempt online games may be submitted for application or called-in for classification by the Director of the Classification Board.  This section is intended to make clear that once these computer games are classified they are no longer considered exempt online games. Once classified these games are classified games and relevant provisions and offences relating to classified games contained in the Classification Act and State and Territory enforcement legislation apply to these games.

 

Subsection 5C(4) establishes that Division 6 of Part 2 applies to an ‘exempt online game’ with some qualifications outlined below.  It is intended that a person may make an application for a certificate of exemption for an ‘exempt online game’ under section 28A of the Classification Act.  The Classification Board may grant a certificate stating that an ‘exempt online game’ is an ‘exempt computer game’ under section 28B.  The Classification Board may choose to revoke a certificate that has been granted for an ‘exempt online game’ under section 28C. 

 

An application for exemption for an exempt online game made under section 28A pursuant to subparagraph 28A(2)(vi) must include particulars of any material that could cause the game to be classified M or a higher classification and of the means by which access to it may be granted.  The Board pursuant to section 28C must revoke a certificate of exemption given to an ‘exempt online game’ if it considers that the game contains material which was not brought to its attention before the certificate was granted that would cause the computer game to be refused classification.

 

Subsection 5C(4) provides that any references in Division 6 of Part 2 to ‘M or a higher classification’ are to be read as references to refused classification in the application of that Division to an ‘exempt online game’.  This makes the requirement in subparagraph 28A(2)(vi) to include particulars of any material that could cause the game to be classified M or a higher classification to be read as particulars that could cause the game to be refused classification.

 

Subsection 5C(5) establishes that a computer game is not an ‘exempt online game’ at any time after the end of the period of two years starting on the commencement of section 5C.  This makes the reform operative for a two year period only.

 

Subsection 5C(5) also establishes that any certificate granted under Division 6 of Part 2 on the basis of a computer game being an exempt online game ceases to be in force.  This amendment is intended to prevent a computer game from retaining its status as an exempt online games after the Act ceases to be in force, reflecting the interim nature of this reform.

 

 

Item 7 - inserts note at end of subsection 28A(1)

 

Item 7 inserts a note at the end of subsection 28A(1) that states that ‘for how this provision applies in relation to exempt online games, see subsections 5C(4) and (5)’.  This is intended to highlight the particular application of Division 6 of Part 2 to exempt online games.