Bills Digest No. 120  1999-2000 Classification (Publications, Films and Computer Games) Amendment Bill (No. 2) 1999

Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Appendix A
Contact Officer and Copyright Details

Passage History

Classification (Publications, Films and Computer Games) Amendment Bill (No. 2) 1999

Date Introduced: 8 December 1999

House: House of Representatives

Portfolio: Attorney-General

Commencement: 12 months after Royal Assent, or before by Proclamation

Purpose

• To remove the 'X' classification for films and videos and to encompass an 'NVE' classification (Non-violent Erotica)
• To expand the definition of 'standing' for those wanting to challenge the classification decisions of the Classification Board
• To create a scheme of films and computer games that are exempt from the need to seek classification, and
• To make a large number of technical and procedural changes to the Classification (Publications, Films and Computer Games) Act 1995.

Background

Despite being a notoriously difficult policy area to deal with, and generating an unusual degree of polarities of perspective, Australia's censorship system has attracted a fairly bipartisan approach. The Commonwealth does not have any direct head of power to deal with censorship, and while it can use its customs powers to regulate what is imported into the country, there is a co-operative scheme in place between the States and Territories and the Commonwealth, which operates through the Classification (Publications, Films and Computer Games) Act 1995. There is complementary State and Territory legislation to this Act, and the scheme commenced in most States and Territories on 1 January 1996.

The censorship system in Australia is often quoted as being underpinned by these principles:

In 1997 there was a flurry of publicity around the issue of censorship in the wake of the election, during which the in-coming Government had had a policy that 'X'-rated videos should be banned.⁽²⁾ On 7 April 1997 the Government agreed that the Attorney-General negotiate with State and Territory Censorship Ministers to achieve a ban on 'X'-rated videos and to create a new 'NVE' category for non-violent sexually explicit videos that would exclude certain material which is currently allowed in the 'X'-rated category or which contains demeaning material.⁽³⁾ Both the Australian Labor Party and the Liberal Party went to the 1998 election with policies that committed them to the introduction of a new classification category of non-violent erotica.⁽⁴⁾

The decision to introduce the new category has now been reached with agreement of State and Territory Attorneys-General, through the Standing Committee of Attorneys-General. The views of the interest groups involved in this area are, however, still at odds with each other.

Groups such as the Eros Foundation say the new laws will produce a black market for pornographic material showing fetishes and demeaning sexual material, whereas groups such as the Australian Family Association have said that the community is failing the families with children, who are not sufficiently protected from inappropriate values.⁽⁵⁾ The Hon Peter Costello and Senator Harradine have both emphasised more general claims about the link between violence in film and in real life, and the undermining effect of violence on adults' consciousness and behaviour. The Hon Peter Costello has commented:

Senator Harradine has argued that:

The issue of censorship has been an on-going subject of controversy in recent months, with the initial banning of the film Romance (a decision that was overturned by the Classification Review Board) leading to comments that Australian censors were returning to the more restrictive regime of the 1960s,⁽⁸⁾ to accusations of bias on the film board,⁽⁹⁾ and to comments by academics such as:

The passage of the Broadcasting Services Amendment (On-Line Services) Act 1999 in mid 1999 with its provisions regulating Internet content, including the capacity to ban certain pornographic material from servers in Australia, also contributed to impressions that the Government was favouring a pro-censorship position.

This Bill does not exhibit so much a 'strong moral conservative trend' as a wide-ranging review of the current legislative scheme, with consequential amendments of a rigorous particularity. The changes to the X-rated category, while they are likely to lead to some restrictions, are not a comprehensive ban. The changes seem more to reflect the Attorney-General's comments that

In the Explanatory Memorandum the Government was at pains to emphasise the balanced nature of the legislative amendments. While the amendments reflect a mid point in the options presented in the Memorandum it should be noted that liberalisation of the area of censorship was not presented as an option. The alternatives were doing nothing, banning 'X'-rated materials, and restricting 'X'-rated materials into a new category, 'NVE'.

Throughout this Digest the following abbreviations, taken from those used in section 7 of the Classification (Publications, Films and Computer Games) Act 1995 ('the Principal Act') are used:

The abbreviation 'NVE' for Non-violent Erotica is also used. For the definitions of these classifications provided in the National Classification Code see Appendix A. The definitions currently used for computer games are also given there.

The National Classification Code is contained in a Schedule to the Principal Act. However section 6 of the Act provides that the Code can be changed by the agreement of the Ministerial Council and that the Minister is required to publish the revised Code in the Gazette. This has yet to happen, however the proposed changes to the Code and the Guidelines⁽¹²⁾ were contained in briefing papers prepared by the Commonwealth for the Standing Committee of Attorneys-General, which was considering the proposed non-violent erotica classification. These briefing papers were, reluctantly, tabled by the Government in the Senate on 23 June 1998. As the proposal then stood the NVE category in the Code would be defined as follows

The proposed changes to the National Classification Code as tabled by the Attorney-General after the Second Reading Speech were identical to those proposed in 1998.

The proposed Classification Guidelines for the NVE classification are as follows:

These proposed changes to the National Classification Code and the Classification Guidelines do not come before the Commonwealth Parliament but rather are decided upon by the National Council of State, Territory and Commonwealth censorship Ministers. The final form of the changes are Gazetted by the Commonwealth Attorney-General.

Main Provisions

There are a large number of amendments made by this Bill. Many of them are minor or technical in nature. Some of them, while not being insignificant, are unlikely to attract controversy. Finally there are changes which may attract controversy as they deal with the traditionally troubled area of sexually explicit videos. This Digest will examine the changes to the provisions regarding X-rated videos first, and will then group the other amendments according to their subject area. All the significant amendments are contained in Schedule 1 of the Bill.

X-rated videos

Item 14 of Schedule 1 (unless otherwise noted, all items referred to are from Schedule 1) redefines the types of classifications for films, and substitutes for the 'X (Restricted)' category a new category, 'NVE (Non-violent Erotica)' in section 7 of the Principal Act. Items 33 and 47 make consequential changes to section 20(1)(a) of the Principal Act, which requires the Classification Board ('the Board') to determine consumer advice regarding the content of an NVE film, and section 33, which prevents the Board from granting an exemption from classification to films which will probably fall within the NVE category.

Item 50 deals with the reclassification of X films, and inserts two proposed sections, 41A and 41B, which allow the Board to reclassify X films, either at their own instigation, the Minister's instigation or on application from an individual under section 14. The Minister who may request reclassification includes a 'participating Minister' from the States or Territories. If the applicant for a reclassification is not the original applicant for classification then the Board is required to let the original applicant know of the application for reclassification, and must invite submissions about the matter. Unless an application is made for reclassification a film classified X retains that classification (item 58), however if a decision on classification is pending the Board must use the new classification structure once the proposed amendments have come into force (item 59).

These changes to be made by the Bill to the Principal Act are necessary as a result of changes to the Classification Code which have already been agreed to by the Ministerial Council and which do not have to be voted on by the Commonwealth Parliament but which instead come into effect after the Council agrees. Section 6 of the Principal Act requires these changes to be put into the Gazette by the Federal Minister. The current definition of the X category is contained in Appendix A. The Attorney-General said in his Second Reading Speech that he was tabling the proposed definition of NVE.⁽¹⁴⁾

Exemption of Specialised Films

Item 13 inserts a new section 5B which would recognise that for certain sorts of films applications for classification are not necessary. The categories are essentially specialist films such as business films, scientific or educational films, religious films, films of live performance or musical presentations, current affairs films and hobbyist, sporting or 'family' films (family films are documentary records of a family event or activity). Similarly there are categories created for computer games. Proposed sub-section (3) of this new section would not allow the exemptions to apply to films or computer games which have advertisements which have been refused approval or for advertisements for unclassified films or games, or classified films or games of M or higher. In the case of films which would be likely to be classified M or higher they will not be exempt, similarly computer games likely to be classified M (15+) or higher would also not be exempt.

Items 43-46 go on to make consequential amendments, with item 43 extending the provisions regarding the calling in⁽¹⁵⁾ of items for classification to films (it already applies to computer games) and item 44 extending the power to call in an unclassified computer game to situations where the unclassified game may not be exempt. Item 46 provides the mechanism whereby certificates can be issued regarding a film or computer game's exempt status. This process effectively includes a requirement that to get a classification an applicant must demonstrate the computer game or interactive film if the Board requires a demonstration. It also allows the Board to revoke the certificate of exemption if the item for classification contains material that was not brought to the Board's attention and would cause the item to be classified as M or higher (for a film) and M (15+) or higher for a computer game.

Expansion of standing to appeal Board decisions

The current section that determines who may apply for a review of a decision by the Board includes 'a person aggrieved by the decision' (section 42(1)(d)). This section has been interpreted by the Classification Review Board ('the Review Board') as requiring the person to have a greater interest in the decision than the 'average member of the community'. During 1999 a joint application for review of a decision by the Board to assign the 'R18+' classification to the film Lolita was received from a consortium of community groups from Western Australia. The Review Board was required to determine whether the groups and individuals concerned qualified as 'persons aggrieved' within the meaning of paragraph (d). The Review Board, having taken legal advice, found that the applicants were not 'persons aggrieved' within the meaning of the Act and therefore the Review Board did not proceed to review the classification assigned.⁽¹⁶⁾

Item 51 expands the definition of those who may appeal a 'restricted decision' to people who have been engaged in a series of activities relating to, or research into, the contentious aspects of the theme or subject matter of the item for classification and organisations whose objects or purposes and activities include the contentious aspects of that theme or subject matter. A 'restricted decision' is one which classifies the item at the more restricted end of classifications, e.g. above MA, and including RC. Item 52 gives the Review Board the right to refuse applications for review if it believes the application is 'frivolous or vexatious or not made in good faith.'

What and how items are to be classified

Item 1 creates a definition of an 'add-on' which means a computer program and associated data which generates new elements or additional levels of a game, but which is separate from the original game. Item 13 creates a new definition of 'computer game', which clarifies that computer games include 'add-ons' and item 27 modifies the current section 17 which deals with applications for classification of computer games so that the Board is required to classify an add-on along with the computer game the add-on will change. Item 27 also changes the current requirement - if it is likely to be contentious, the computer game must be accompanied by a video tape recording of the game play - to a requirement that an application include particulars of the contentious material with particulars of how access to it may be gained along with a separate recording of that material.

Item 2 excludes certain advertisements from the definition of advertisement, including advertising for exempt films or computer games, and certain advertising in imported items. Imported publications that have advertising for publications, films or computer games not published in Australia are not to be regarded as advertisements. Nor is advertising in imported films or computer games which cannot be modified and which is for films or computer games that have not been published in Australia (even if they subsequently are published in Australia). The Explanatory Memorandum points out that DVD⁽¹⁷⁾ technology makes it difficult for importers to delete advertising material from imported disks. It also says that the Board will still be able to take into account the contents of the advertisement when classifying the publications as a whole.

Item 8 makes it clear that the definition of a 'film' includes its sound track.

Item 10 introduces a new definition of an 'interactive film'. This is necessary since the category of film and game is becoming blurred over time, and, for instance, if the Board is classifying an interactive film rather than a 'traditional' film it needs to make provisions to ensure that it can classify elements that may not be immediately accessible (thus item 31 enables the Board to require a demonstration of an interactive film before proceeding with its classification).

Item 17 introduces new provisions to deal with periodicals. These provisions will allow the Board a discretion to declare a classification to hold for a certain number of future issues of a periodical, while allowing this decision to be revisited if future issues contain material that requires a different classification, or contains advertisements that have been refused approval.

At the moment section 15 of the Principal Act allows the Board to treat an application for classification of a film as if it were an application for classification as a computer game (once the necessary adjustments to the application are made). The changes made by items 21-24 will mean that this shift will apply in the other direction as well, i.e. the Board can treat an application for classification of a computer game as if it were an application for classification as a film.

Changes in the Director and/or Board's powers

Item 15 expands the Director of the Board's capacity to specify additional conditions for markings for particular classifications (through notices in the Gazette). This additional capacity governs add-ons, a new capacity (inserted by item 18) to specify that unrestricted publications, or publications which are 'Category 1 restricted'⁽¹⁸⁾ may be required to be sealed when displayed for sale and the Board can also determine what markings should be put on exempt films or computer games.

Item 34 removes computer games classified G from the requirement that the Board must determine consumer advice which gives advice about the content of the game. This requirement for the formulation of advice remains for games which are rated higher. Item 35 preserves the Board's capacity to give this advice, should it so desire, in the case of unrestricted publications, films or computer games classified G.

Item 42 clarifies the procedure if the Board is unclear whether it has already classified an item before. If the records are unable to clarify whether the publication, film or computer game has been classified before and a copy of the original item is not available to it then the Board can go ahead and classify the later item. If it becomes apparent that the items are identical it must revoke the earlier classification or consumer advice.

Items 43-45 deal with the powers of the Director to call in films or computer games which are not classified and which s/he believes are not exempt. The power only applies to films or computer games being published in the Australian Capital Territory and complementary legislation will be necessary in the States and the Northern Territory to give the provisions force. The offence of failing to comply with a 'call-in' notice is a strict liability offence, although it is a defence to prove that one did not intend to publish the film in the ACT, or 'cause, authorise, permit or licence' it to be published in the ACT.

Similarly item 49 inserts new provisions which allow the Director to require the publisher to submit a copy of a publication, film or computer game for reclassification purposes. After two years, under the current section 39, the Board can reclassify items either at its own instigation or at the request of the Commonwealth Attorney-General or the request of a participating Minister. Despite having the power to reclassify the Board does not necessarily have the power to obtain a copy of the relevant publication. Once again complementary legislation will be required in the States and the Northern Territory, and once again the offence of failing to comply with a request for a copy of the item is a strict liability offence, although it is a defence to prove that one no longer has a copy of the item. Item 53 creates the same effect in the case of an application for a review of the original decision under section 42, which is the provision for an appeal from a decision of the Board.

Item 55 gives the Director a discretion to waive fees when there is a special interest film with a limited distribution which is a short film made by a new or emerging film maker.

Miscellaneous, procedural & technical changes

Item 5 widens the definition of a 'decision' of the Board to include decisions that may be made under the new sections dealing with the Board's powers and responsibilities.

Item 4 makes a minor modification of the definition of 'contentious material'. In the current section 5 it is defined as something a reasonable adult would consider unsuitable for viewing or playing by a person under 15. By shifting the definition, as item 4 does, to 'material that would be likely to cause it to be classified' M or higher (films), or M (15+) or higher (computer games), the Bill shifts it to the definitions contained in the National Classification Code, which includes these items:

This is a subtle distinction which, according to the Explanatory Memorandum, is needed because of the interpretation that has been given to this definition.

Item 11 changes the definition of 'submittable publication' (the Board can require such publications to be submitted for classification) from

to

Once again this distinction is sufficiently subtle that it may be difficult to appreciate. The Explanatory Memorandum comments that the changes 'make it clear' that the definition should include a publication that would be refused classification or which is unsuitable for a minor to see or read.

Item 12 broadens the definition of 'work' to include a computer game. This change ties into the change made by item 25, which repeals the current arrangements for items which run for longer than 90 minutes and include more than one 'work' and inserts a new provision giving the Board the capacity to decline to deal with applications which cover more than one work.

Item 16 removes the requirement that an application be made in writing for classification when the Minister or the Board have initiated a reclassification.

Item 19 makes it clear that a copy of the film to be classified must be submitted to the Board along with the application for classification.

Item 26 inserts new conditions on what must be submitted with an application for classification of computer games. It inserts a new section 17(1)(ca) which exempts large games from a requirement to submit a copy of the game when it would be 'physically impracticable' to submit the copy to the board's premises and a new section 17(1)(cb) requires submissions of add-ons for classification to include a copy of the original game. Items 30 and 41 also deal with changes consequential to the new paragraph (ca), recognising that the Board may require access to such a game in order to classify it.

The current section 18 ensures that a classification only applies to the particular form in which an item is released. Previously the section simply referred to films and computer games, however this condition that the classified item only retains its classification for the particular form it was classified in has now been expanded to publications by item 28.

Item 37 changes the procedural results from a finding by the Board that an interactive film or computer game contains material which it was not informed about and which changes the games classification. Instead of the classification never having occurred the classification is revoked (as well as classifications for advertisements for the film or game).

Items 38-40 make the provisions which prevent material containing unclassified advertisements from being classified stronger and broader, essentially preventing classification of a publication, film or computer game that contain advertisements that have been refused approval.

Item 54 removes a reference to section 16 in terms of decisions which may be appealed to the Administrative Appeals Tribunal. Appeals under section 16 now lie to the Classification Review Board rather than to the AAT.

Item 56 inserts a new section 97A which enables the Board to reclassify a publication where it was classified in response to an enforcement application under one particular State or Territory law or where different classifications have been given in respect of different States or Territories. The current scheme will allow reclassification of material under one unified set of principles.

Items 57, 58 and 59 are transitional provisions, which apply to ensure that, while most amendments made by the proposed Act will not come into force for items published before the commencement of the amendments, some, such as the change from X to NVE, or for situations where the Board is classifying the same item twice, come into force even when the item was published before the proposed amendments come into force. Item 58 preserves X classifications made under the pre-existing Code unless an application is made for reclassification and item 59 stipulates that classification decisions which are pending when the proposed changes comes into force should be made according to the new (NVE) scheme.

Schedule 2 - Consequential amendments

The Broadcasting Services Act 1992 is amended so that programs classified NVE cannot be broadcast (in the same way that programs currently classified as X cannot be broadcast). It is also amended to ensure that Internet content classified as NVE will be under similar restrictions to material currently classified as X.

Concluding Comments

The legal, political and moral debate surrounding this legislation and the subject of classification and censorship generally, highlights the tension between the principle that adults should be free to read, see and listen to whatever they choose and that of protecting the community, particularly children, from material likely to be harmful to them. Legislation such as this Bill raises this tension between freedom of speech and censorship. It also raises the question of whether the decision makers in this area are sufficiently informed of the views of the general community as to what they wish or do not wish to read, see and listen to, and what they wish or do not wish to allow others to read, see and listen to. While vocal minorities make their views well-known there is a further question regarding what less outspoken citizens think. According to Maxine McKew on Lateline, opinion polls in 1997 showed that 8 out of 10 Australians favoured the on-going availability of X-rated videos.⁽¹⁹⁾

It would be interesting to revisit those statistics. In the meantime this legislation could be regarded as uncertain in its impact or outcome on the availability of sexually explicit materials. Much will depend on the decisions of the States and Territories as to whether they will treat the NVE category in precisely the same way as the X category has been treated.

Most State Governments are yet to announce the form of their implementing legislation. While the Commonwealth is responsible for setting the classification structure in place it is the State and Territory governments which are responsible for enforcement provisions. The State and Territory legislation, in effect, requires the submission of films, publications and computer games to the Classification Board for classification under the Commonwealth Act. It spells out the consequences, in each jurisdiction, of the different classifications that are open to the Board for films, publications, and computer games, while at the same time backing this up with an extensive offence regime. The State legislation may also include provisions allowing jurisdictions to override the classifications given by the Classification Board to a film, publication or computer game. Thus, as is recognised by the Second Reading Speech, complementary legislation will be required in all State and Territory jurisdictions.

Endnotes

1. The National Classification Code.
2. See for example Lateline, 1 April 1997. The Coalitions's Law and Justice policy for the 1996 March 2 election stated: 'X-rated videos have been banned from sale or rental to the public in each of the States. The Australian Capital Territory should not continue as a centre of distribution for such material to the States. The Liberal and National Government will ban the X-rated classification.'
3. Classification - Non-violent erotica - Copies of briefing papers provided to the Standing Committee of Attorneys-General, prepared by the Commonwealth relating to the proposed non-violent erotica classification. Tabling statement, 28 May 1998.
4. A better plan for justice, Australian Labor Party Justice Policy, 23 September 1998; Law and justice policy, Liberal Party of Australia, 25 September 1998.
5. Eros Foundation spokesman, Mr Robbie Swan, Australian Financial Review 10 December 1999; Lateline, 1 April 1997, Susan Bastick, Secretary, New South Wales Branch, Australian Family Association
6. Lateline, 'The Right to Watch', 1 April 1997.
7. Press Release, ''X'-Rated Videos', Senator Brian Harradine, 28 October 1998.
8. 'Disney distributor hits at "60s censorship"' The Australian, Thursday, 27 January 2000.
9. 'Bias taints film board: ex-censor', Lynden Barber and Jennifer Sexton, The Weekend Australian, Saturday, 22 January, 2000 and 'The Process of censorship', Peter Gotting, Letters to the Editor, Sydney Morning Herald, Saturday, 22 January, 2000. See also 'Who Censors the Censors - John Howard Does' Press Release, Mr Robert McClelland, MP, 3 June 1999.
10. 'Return of the Vice Police', Melissa Fyfe, quoting David Lindsay, a media law academic from Melbourne University, The Age, Saturday, 22 January, 2000.
11. The Hon Daryl Williams, MP 'From censorship to classification' An address to Murdoch University, 31 October 1997, p. 12.
12. When making a classification the Board is required to have regard to the Classification Guidelines which are also determined by the censorship Ministers for the States, Territories and Commonwealth. The Guidelines offer more in-depth explanation of the classifications established under the National Classification Code.
13. Classification - Non-violent erotica - Copies of briefing papers provided to the Standing Committee of Attorneys-General, prepared by the Commonwealth relating to the proposed non-violent erotica classification. Tabled 28 May 1998, Attachment B.
14. House of Representatives, Official Hansard, 8 December 1999, p. 13025.
15. The process of 'calling in' an item for classification allows the Board to require an item to be submitted for classification.
16. The full text of this decision is available in the Office of Film and Literature Classification Annual Report 1998-99, p. 161. The Board found that since the Federal Court had not made a finding regarding the definition of a 'person aggrieved' they had to have regard to general case law on this matter, relying on relevant case law on standing and other interpretations of the phrase 'person aggrieved' including the following cases: Australian Conservation Foundation v. The Commonwealth (1980) 146 CLR 493, Ogle v. Strickland (1987) 71 ALR 41; North Coast Environment Council Inc v. Minister for Resources (1994) 127 ALR 617; Tasmanian Conservation Trust Inc v. Minister for Resources (1995) 127 ALR 580; Right to Life Association (NSW) Inc v. Secretary, Department of Human Services and Health (1995) 128 ALR 238; Executive Council of Australian Jewry v. Scully (1998) 160 ALR 138.
17. DVD technology refers to a Digital Video Disc or Digital Versatile Disc.
18. 'Category 1 Restricted' at this time means:

19. Lateline, 'The Right to Watch', 1 April 1997. Quoted by Maxine McKew.

Appendix A

National Classification Code (Schedule to the Classification (Publications, Film and Computer Games) Act 1995 as in force on 7 January 1998)

Films

Films are to be classified in accordance with the following Table.

Computer Games

Computer games are to be classified in accordance with the following Table.

Contact Officer and Copyright Details

Kirsty Magarey
15 February 2000
Bills Digest Service
Information and Research Services

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ISSN 1328-8091
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