Bills Digest No. 40 2004-05
Classification (Publications, Films and Computer Games)
Amendment Bill (No. 2)
2004
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
Contact Officer & Copyright Details
Passage History
Classification (Publications, Films
and Computer Games) Amendment Bill (No. 2)
2004
Date
Introduced: 17
November 2004
House: House of Representatives
Portfolio: Attorney-General
Commencement:
Royal
Assent
This Bill amends the
Classification (Publications, Films and Computer Games) Act
1995 ( the Act ) to ensure the validity of classification
decisions made by the Classification Board (and decisions made on
review (or appeal) of those decisions by the Classification Review
Board) where those decisions were made on the basis of defective
applications lodged by law enforcement agencies. As stated in the
Explanatory Memorandum for the Bill:
The provisions do not operate to validate
classification decisions that might be defective for reasons other
than technical deficiencies related to the application, nor do they
prevent any challenges to a Board or Review Board decision based on
some defect in the decision making process (as opposed to the form
of the application).(1)
The Classification Board (which is given administrative and
logistical support by the Office of Film and Literature
Classification) was established by section 45 of the Act. It is
responsible for classifying every film, video and computer game
that is legally available in Australia, whether produced in
Australia or overseas, as part of the National Classification
Scheme.(2) The Classification Board is also responsible
for classifying certain publications and, importantly for the
purposes of the Bill, also (among other things) provides advice to
law enforcement agencies.
Section 22A of the Act provides for the making of an enforcement
application . That term is defined in section 5 of the Act as an
application that is made by the Commonwealth or a state or
territory (or an agency of the same) for the purpose of
investigating or prosecuting an offence against a law of the
Commonwealth, a State or a Territory . Enforcement applications
relate to offences, including under State or Territory
classification laws and, and in some cases, child pornography
offences .(3) Under the relevant state and territory
legislation, a prosecution relating to seized material cannot
usually occur until the material is classified although the law is
subject to review at present in some states.(4)
According to a statement dated 14 October 2004, the Classification
Board does not know what charges, if any, are being contemplated
when it classifies material submitted by the police.(5)
In 2003 04, the Classification Board made decisions on 458
enforcement referrals.(6)
The requirements for making an enforcement application are set
out in section 22A of the Act. The application must be in writing,
in a form approved by the Director of the Classification Board, be
signed by or on behalf of the applicant and be accompanied by a
copy of the material to which the application for classification
relates. The applicant must pay the prescribed fee, but the fee
need not accompany the application.(7)
If the Classification Board determines that the material is
child pornography, it will classify it as RC meaning Refused
Classification . According to the National Classification Code,
publications will be classified as RC if they (emphasis added):
(a) describe, depict, express or otherwise deal
with matters of sex, drug misuse or addiction, crime, cruelty,
violence or revolting or abhorrent phenomena in such a way that
they offend against the standards of morality, decency and
propriety generally accepted by reasonable adults to the extent
that they should not be classified; or
(b) describe or depict in a way that is
likely to cause offence to a reasonable adult, a person who is, or
who looks like, a child under 16 (whether the person is engaged in
sexual activity or not); or
(c) promote, incite or instruct in matters of
crime or violence.(8)
Films and computer games are classified RC according to similar,
but narrower, standards. If material is classified RC , it cannot
be sold, distributed or advertised in Australia.
According to the Attorney-General, the Bill is designed to
ensure that prosecutions for child pornography and related offences
do not fail for technical reasons related to applications for
classification .(9)
In this regard, the Bill seems to have arisen in the context of
recent child pornography investigations, including Operation
Auxin.(10) That investigation was coordinated by the
Australian High Tech Crime Centre (which investigates internet and
computer-based crime) and involved the Australian Federal Police,
all state and territory police agencies, foreign police agencies,
internet companies, child protection agencies and financial
institutions. More than 400 search warrants were executed and about
200 people were arrested in what is considered to be Australia s
largest ever crackdown on internet child pornography .
Particularly, more than 150 people were charged with offences such
as child sex tourism, sexual abuse and downloading, possessing or
distributing child pornographic images.(11) The
examination by computer forensic experts of material seized during
raids as part of Operation Auxin may take up to six
months.(12)
In the course of child pornography (and similar) investigations,
law enforcement officers may seize material. That material may then
be submitted to the Classification Board for classification
(according to the procedures and guidelines set out in the Act and
the classification guidelines). It seems from the second reading
speech for the Bill that applications by law enforcement agencies
may not necessarily always meet the technical requirements set out
in the Act hence, in the words of the Attorney-General, the Bill is
designed to ensure that applications for classification from law
enforcement agencies that have not met all the technical
requirements will not result in a subsequent classification
decision being invalid .(13)
The Bill is regarded as a pre-emptive measure by the Government,
which considers decisions made by the Classification Board to be
valid even where there may be a technical deficiency in the
application process. As the Attorney-General stated, the fact that
an application may be flawed casts no doubt whatsoever on the
correctness of the classification decision, which rested on the
examination of the relevant product, not the formalities of the
application .(14) Particularly, Mr Ruddock stated:
There is no legitimate reason why a person should
be able to escape prosecution, conviction and punishment for
serious child pornography offences in those
circumstances.(15)
Schedule
1 to the Bill contains two substantive amendments. All the
validation provisions have both retrospective (or past) and
prospective (or future) effect.
Item 1 amends the Act to insert
proposed section 22C.
Proposed subsection 22C(1) validates decisions
made by the Classification Board (referred to in the provision and
the Act generally as the Board ) where the decision (known as the
original decision ) is made on an application made by or on behalf
of a law enforcement agency and the application did not satisfy the
requirements of the Act for making the application.(16)
As mentioned earlier, the requirements for an enforcement
application are set out in section 22A of the Act.
Proposed subsection 22C(2) provides that any
later decision made, or action taken, by the Classification Board,
the Classification Review Board or the Director on the basis of the
original decision is also taken to be as valid as it would have
been if the requirements in the Act for making the application for
the original decision had been met.
Item 2 inserts proposed section
44B into Part 5 of the Act, which deals with the review of
decisions made by the Classification Board.
Proposed subsection 44B(1) provides that where
the Classification Review Board reviews a decision that was made on
the basis of an application for classification by a law enforcement
agency and the application for review did not satisfy the
requirements in the Act for the making of the review application,
then the decision of the Review Board is taken to be as valid as it
would have been if the review application had met those
requirements.
The persons who may apply for review are set out in section 42
of the Act. They are the Minister (the Attorney-General), the
applicant for classification of the material, the publisher of the
material, and a person aggrieved by the original decision. The
requirements for an application for review are set out in section
43 of the Act and are similar to those for making an original
application.
Proposed subsection 44B(2) provides that any
later decision made, or action taken, by the Classification Board,
the Classification Review Board or the Director on the basis of the
review decision is also taken to be as valid as it would have been
if the review application had met the requirements in the Act for
making the review application.
The Government s view is that the amendments merely seek to
prevent persons accused of child pornography (and other) offences
from evading conviction by virtue of the fact that the
classification decision, which forms the basis for the prosecution
to assert that material in the defendant s possession or control
constitutes child pornography, was made on a technically deficient
application.
However, the wording of the Bill is not limited in this way. The
amendments refer more generally to an application that did not
satisfy the requirements of [the Act] for the making of the
application , which means that the amendments may apply to
applications that are actually wrong and those that are not
actually applications under the Act, and not just those that are
technically deficient in a minor way. For example, the amendments
may have the effect of validating an application where the wrong
film accompanies the application. That is, the Classification Board
makes a decision about Film X that law enforcement agencies sent to
it in error instead of about Film Y that was actually seized by the
agencies from the person whom the law enforcement agencies wish to
charge with an offence. Also, the amendments could apply to a
situation where there is an omission or misstatement of something
substantial in the form mentioned in paragraph 22A(1)(b) and
not a minor, technical deficiency.
Thus, while it is important that a decision be deemed to be
valid even where the application for the decision might not comply
with the requirements in the Act in some minor or technical way, it
may also be important to clarify the reach of the amendments. This
is because the consequence of an application and classification
decision may be a criminal conviction and penalty (including
imprisonment). Alternatively, in some cases, extended application
of the amendments may mean that persons who were definitely
involved in child pornography may escape conviction.
Further, it should be noted that section 22A was introduced in
1998 to simplify the requirements in the Act for an enforcement
application(17) more stringent requirements continue to
apply to applications that are not enforcement applications. There
may therefore be good public policy reasons for ensuring that
enforcement applications be as accurate and complete as
possible.
One way to limit the reach of the proposed amendments, so as to
confine them to instances where there are minor, technical
deficiencies in enforcement applications, may be to use language of
the sort used in section 75 of the Telecommunications
(Interception) Act 1979 (Cwlth). That provision says that but
for an irregularity in the issue of an interception warrant, the
interception would not have been illegal and evidence of the
intercepted communication can be given in evidence. It defines
irregularity in paragraph 75(2)(a) as a defect or irregularity
(other than a substantial defect or irregularity)
in, or in connection with the issue of, a document purporting to be
a warrant (emphasis added).
As mentioned earlier, the amendments have both retrospective and
prospective application. That is, they apply to decisions made
before and after the commencement of the amendments. In other
circumstances, the retrospective application of legislation may be
problematic and unfair, particularly in the area of general
criminal law where the effect of the retrospectivity may be that a
person is taken to have committed a crime when no such crime
existed at the time the person did whatever it was that now
constitutes an offence. Likewise, the effect of retrospectivity may
sometimes be harsh and unreasonable.
However, here the retrospective application of the proposed
amendments may not be an issue, primarily because the amendments do
not seek, according to the Attorney-General, to validate decisions
made improperly by the Classification Board or the
Classification Review Board (that is, not according to the criteria
for classifying material). Rather, the legislation seeks only to
validate applications for such decisions where the application
itself (and not the decision classifying the material to which the
application relates) was defective. Nonetheless, the retrospective
application of the proposed amendments may be problematic in some
situations, depending on the reach of the amendments.
Equally important is the fact that the Bill seeks to validate
all future enforcement applications that do not satisfy the
requirements of the Act. Again, this may or may not be problematic,
depending on the reach of the amendments.
-
Explanatory Memorandum for the Classification (Publications,
Films and Computer Games) Amendment Bill (No. 2) 2004, p. 1.
-
The national classification scheme comprises the
Classification (Publications, Films and Computer Games) Act
1995 Act (Cwlth) ( the Act ), the National Classification Code
and the classification guidelines. The Act provides for the
classification of publications, films and computer games for the
Australian Capital Territory and is intended to form part of a
Commonwealth/State/Territory scheme for the classification of
publications, films and computer games and for the enforcement of
those classifications (section 3). Definitions are set out in
section 5. Classifications are set out in section 7. The states
have passed legislation in similar terms. The scheme commenced on 1
January 1996. Annexed as a schedule to the Act is the National
Classification Code, which exists as a separate document apart from
the Act. It contains descriptions about the products which would
fall within the classification types. For example, the Code sets
out the level of depiction of sex and violence and other issues
which would cause a film to be classified as G, PG, M etc. The
criteria for classification are also contained in the Guidelines
for the Classification of Films and Computer Games, which came into
operation on 30 March 2003. The Guidelines were made under section
12 of the Act and are available electronically at:
http://www.oflc.gov.au/resource.html?resource=62&filename=62.pdf.
For further details see: Morag Donaldson, Classification
(Publications, Films and Computer Games) Amendment Bill 2004 ,
Bills Digest, no. 115, Parliamentary Library, Canberra, 2003 04,
available electronically at: http://www.aph.gov.au/library/pubs/bd/2003-04/04bd115.pdf.
-
Office of Film and Literature Classification, Role of the
Classification Board in processing applications from enforcement
authorities , Statement, 14 October 2004. See:
http://www.oflc.gov.au/resource.html?resource=345&filename=345.pdf
(at 17 November 2004).
-
See, for example, Edith Bevin, Child sex photos to bring tougher
penalty , Adelaide Advertiser, 6 October 2004, p. 8 (South
Australia) and Drew Warne-Smith, Law backdated to beat loophole on
child porn , The Australian, 20 October 2004, p. 5 (New
South Wales).
-
Office of Film and Literature Classification, Role of the
Classification Board in processing applications from enforcement
authorities , Statement, 14 October 2004. See:
http://www.oflc.gov.au/resource.html?resource=345&filename=345.pdf
(at 17 November 2004).
-
Office of Film and Literature Classification, About Us at
http://www.oflc.gov.au/content.html?n=118&p=60
(at 17 November 2004).
-
Section 91A of the Act provides that the Commonwealth is not
liable to pay a fee that is payable under the Act.
-
National Classification Code, available electronically at:
http://www.oflc.gov.au/resource.html?resource=60&filename=60.pdf
(at 19 November 2004).
-
The Hon Philip Ruddock MP, Attorney-General, Second reading
speech: Classification (Publications, Films and Computer Games)
Amendment Bill (No. 2) 2004 , House of Representatives,
Debates, 17 November 2004, p. 3.
-
Senator Ian Campbell, Classification (Publications, Films and
Computer Games) Amendment Bill (No. 2) (which appears under the
heading Notices: Presentation ), Senate, Debates,
16 November 2004, p. 16.
-
For further details about Operation Auxin and the arrests, see
various newspaper articles, late September early October 2004. See
also Australian Federal Police, Hundreds netted in nationwide
crackdown on childporn , media release, 30 September 2004, at:
http://www.afp.gov.au/afp/page/media/2004/mr30092004opauxin.pdf
and Australian Federal Police, Australian High Tech Crime Centre ,
Fact Sheet, October 2004, at
http://www.afp.gov.au/afp/raw/factsheets/factsheetaustralianhightechcrimecentre.pdf
(at 18 November 2004).
-
Renee Campbell, Check of child porn documents could take months
, The Canberra Times, 23 November 2004, p. 3.
-
The Hon Philip Ruddock MP, Attorney-General, Second reading
speech: Classification (Publications, Films and Computer Games)
Amendment Bill (No. 2) 2004 , House of Representatives,
Debates, 17 November 2004, p. 3.
-
ibid.
-
ibid.
-
The term law enforcement agency is not defined in the Bill or in
the Act. According to principles of statutory interpretation, the
term would be accorded the plain and literal meaning of the words.
In case of doubt, some assistance could be gleaned from the
definition of enforcement application in section 5 of the Act
although it is not clear why the amendments do not simply refer to
enforcement applications.
-
Explanatory Memorandum to the Classification (Publications,
Films and Computer Games) Charges Bill 1998 and the Classification
(Publications, Films and Computer Games) Amendment Bill 1998,
(House of Representatives), p. 1.
Morag Donaldson
25 November 2004
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