Bills Digest no. 86 2007–08
Classification (Publications, Films and Computer Games)
Amendment (Assessments and Advertising) Bill 2008
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
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Classification (Publications, Films
and Computer Games) Amendment (Assessments and Advertising) Bill
2008
Date
introduced: 14
February 2008
House: House of Representatives
Portfolio: Home Affairs
Commencement:
Schedule 1 (the
establishment of an advertising assessment scheme) commences 12
months after Royal Assent, unless commenced earlier by
Proclamation.[1]
Schedule 2 (the establishment of a television series assessment
scheme) commences 6 months after Royal Assent, unless commenced
earlier by Proclamation.
Links: The
relevant links to the Bill, Explanatory Memorandum and
second reading speech can be accessed via BillsNet, which is at
http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The Bill amends the Classification (Publications,
Films and Computer Games) Act 1995 to enable an advertising
assessment scheme and a television series assessment scheme to be
established. Each scheme will be contained in a
Commonwealth legislative instrument.
The Classification (Publications, Films and Computer Games)
Amendment (Advertising and Other Matters) Bill 2007 (the 2007 Bill)
was introduced into the 41st Parliament on 22 March
2007. The 2007 Bill was referred to the Main Committee for second
reading debate and returned to the House of Representatives without
amendment on 9 August 2007. The Bill had not been passed and lapsed
when the Parliament was prorogued in October 2007.
This current Bill has been introduced in the same form as the
2007 Bill with one minor drafting change in Schedule 2.
The National Classification Scheme is a cooperative arrangement
between the Commonwealth, states and territories established by the
Classification (Publications, Films and Computer Games) Act
1995 (the Classification Act). The Classification Act provides
that the Classification Board classifies films (including videos
and DVDs), computer games and certain publications. As part of the
national classification scheme, each state and territory has
enacted classification enforcement legislation that complements the
Commonwealth Classification Act. State and territory classification
legislation prescribes penalties for classification offences and
provides for enforcement of classification decisions in the
particular jurisdictions.[2]
The National Classification Code exists as a
separate document authorised by the Classification 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 and the
Guidelines for the Classification of Publications, the
latest versions of which came into operation on 26 May 2005.
The Classification Act defines advertising broadly. The
definition extends to still and moving visual images and audio
material advertising films, computer games and publications. It
encompasses trailers, print advertising such as posters or
advertising in magazines, and advertising on items such as clothing
and wrapping material.[4]
Under the National Classification Scheme, films and computer
games cannot legally be advertised until classified. Submittable
publications , defined as those publications containing depictions
or descriptions likely to be refused classification , cannot
legally be advertised in Australia.
Advertisements are not required to be classified by the
Classification Board, although advertisements for classified films,
computer games and publications may be submitted to the Board for
approval or considered by the Board on its own initiative.[5] The Board can approve or
refuse approval to advertisements, although advertisements do not
receive a classification. The fee for approval of advertisements by
the Board is set at $450. This approval process is rarely
used.[6]
State and territory legislation, complementary to the
Commonwealth Act, prohibits advertising of films and computer games
before they are classified. Similar provisions apply across all
jurisdictions.[7]
Under state and territory legislation, it is an offence to
publish certain advertisements including for:
- a film, computer game or publication that is not classified
(unless in relation to an unclassified film where an exemption has
been granted)
- a film classified X18+
- a film, computer game or publication that is classified refused
classification , or
- an unclassified submittable publication.
Under state and territory legislation, classified films and
computer games can only be advertised (for example by trailers in
cinemas) with feature films or computer games of the same, or
higher, classification. Markings and consumer advice must be
displayed on advertising for films, computer games or
publications.
A limited number of exemptions can be granted by the
Classification Board[8] to allow for advertising prior to
classification.[9]
Exemptions are only available for public exhibition films. In
practice, these are used for major cinema releases where, in many
instances, the film has not been completed when advertising
begins.[10]
Exemptions are not available for other films (DVD/video),
computer games, or publications.
The Classification (Advertising for Unclassified Films)
Instrument 2005 relates to these exemptions. It prescribes a limit
of 110 exemptions per calendar year. The Board considers all
applications for exemptions. The fee for the Board granting a
certificate of exemption is set at $510.
If an exemption is granted, an advertising message must be
displayed reading This film has advertising approval check the
classification closer to the release date or a short exemption
message TBC (to be classified). The Instrument prescribes the
design and manner in which this message must be displayed. The
exemption message must be displayed on all advertising with some
limited exceptions including some print and Internet
advertising.
If the Board decides that a film will be classified R18+, X18+
or is likely to be refused classification , it cannot grant an
exemption.[11]
In August 2006, the Attorney-General s Department issued a
discussion paper on a proposal to update, simplify and clarify the
advertising provisions for unclassified material within the
National Classification Scheme . The paper stated:
[ ] the proposal balances the need to inform and
protect consumers and the need to reduce the regulatory burden on
industry and improve compliance. The proposal updates the scheme to
account for rapid technological advances, changes in user
preferences and changes in advertising and marketing
practices.[12]
The Second Reading Speech and Explanatory Memorandum to the Bill
do not indicate the level of response to this discussion paper,
although public comment on the discussion paper was required some
time ago.[13]
Amongst other things, the paper canvassed the following
proposals.
- To update the current definition of advertising to specifically
include the Internet and exclude product merchandising, including
clothing, in recognition of where consumers get their
classification information.
- To remove the anomaly that currently allows for films likely to
be classified PG to be advertised during exhibition of a G rated
film, and remove the prohibition on advertising unclassified films
likely to be classified R18+. This would apply to both public
exhibition films and other films (DVD/video).
- To remove the current quota scheme that applies to cinema
release films.
- To remove the prohibition on advertising unclassified films
(such as DVDs/video) and unclassified computer games so the
regulatory scheme is consistent across products to the greatest
extent possible. Industry would be able to advertise these products
prior to classification.
- To provide that industry would assess the likely classification
of products, to ensure advertising is shown to commensurate
audiences.
- To provide that either a short or long message be included on
all advertising material for unclassified products including all
films and computer games. The short message would be check the
classification ( CTC ) and the long message would be Check the
classification. This [product] has been advertised before being
classified . Advertising within the control of industry would
require updating once a product is classified.
- To include safeguards to protect consumers and ensure
consistency and quality of decisions by industry assessors on the
likely classification of unclassified advertising material.
The discussion paper also proposed that
publications would be excluded from the proposal and there would be
no changes to the prohibitions on sexually explicit products (X18+)
and products refused classification (RC).
Schedule 1 of the Bill implements some of these proposals
directly and provides for the introduction of others via a
legislative instrument. That is, all proposals are being
implemented.
The Explanatory Memorandum states that the Bill
will not result in any change to the net asset position for the
Commonwealth.[14]
Items 1 and 2 amend the
definition of advertisement in section 5 of the Classification Act.
They update the definition to clarify that it includes advertising
on the internet and excludes product merchandising, including on
clothing.
Items 3 and 4 are
consequential amendments. They amend the definition of decision of
the Classification Board and the definition of exempt films or
exempt computer games respectively to take account of the new
advertising scheme for unclassified films and computer games.
Item 5 repeals and replaces subsection 22(1),
the commensurate audience provision. The effect of item 5 is that a
film or computer game must not be classified if 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 higher classification. The purpose of this amendment is to
ensure that unclassified films and computer games are advertised
with classified films or computer games of the same or higher level
(for example trailers on DVDs and trailers or demos on computer
games). For example, likely PG films are only to be advertised with
classified films with a PG or higher rating, and likely M films are
only to be advertised with classified films with an M or higher
rating.
In contrast to films, advertisements are not required to be
classified by the Classification Board, although under section 29
of the Act, advertisements for classified films, computer games and
publications may be submitted to the Board for approval or
considered by the Board on its own initiative. Item
7 is a consequential amendment. It amends section 29 to
reflect the changed policy that unclassified films and computer
games can be advertised in accordance with the new legislative
instrument. It also reinforces the existing policy that the
Classification Board must not approve an advertisement for a film
or computer game that is, or is likely to be, classified RC
(Refused Classification).
Items 8 and 9 are
consequential amendments reflecting the change in policy that
unclassified films and computer games can be advertised.
Division 2 of Part 3 of the Classification Act provides the
existing advertising exemption scheme that applies to public
exhibition films that are unclassified. Item 9
would repeal this Division and insert a new Division
2 that provides for the creation of a new advertising
scheme for unclassified films and computer games.
Proposed subsection 31(1) is the key provision.
It enables the Attorney-General to make a legislative instrument
that determines the conditions for advertising unclassified films
and computer games and provides for an industry self assessment
scheme of the likely classification of unclassified films and
computer games. The section is notably broad in scope. The
Explanatory Memorandum to the 2007 Bill[15] stated that it would enable the
Attorney-General to create a scheme similar to that in place for
additional content. That scheme was implemented through the
Classification (Publications, Films and Computer Games)
Amendment Act 2007. In contrast to this Bill and the 2007 Bill
that lapsed, the additional content scheme is set out in some
detail in the Act itself rather than through a legislative
instrument.
The Government s stated rationale for including the advertising
scheme in a legislative instrument is that it will ensure that the
scheme is able to respond quickly and flexibly to developments in
marketing approaches should this be required.[16] Legislative instruments are
subject to disallowance (unless the enabling primary Act or the
Legislative Instruments Act 2003 applies to exempt them
from the disallowance provisions, or unless Regulations under the
LIA have introduced an exception to the principle that instruments
are disallowable).
Proposed subsection 31(2) enables the
instrument to place conditions on advertising unclassified films
and computer games, including conditions about:
- the display of a message about classification a new message
advising consumers to Check the Classification is proposed to be
included in the instrument[17]
- limitations on advertising unclassified films or computer games
together with classified material, so that the instrument may
contain a commensurate audience rule
- time periods for industry to include classification information
on advertisements after classification, and
- ensuring adequate safeguards against continued advertising of
unclassified material by persons who have not complied with the
scheme.
Proposed subsection 31(3) deals with assessors
and administrative matters regarding the scheme. By way of the
legislative instrument, the scheme may:
- provide that an authorised and appropriately trained person 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 (proposed
paragraphs 31(3)(a) and (b))
- set out the matters that must be considered when making an
assessment of the likely classification. (proposed
paragraph 31(3)(c))
- enable the Director of the Classification Board to impose
barring notices on assessors and applicants for unacceptable use of
the assessment scheme (proposed paragraph
31(3)(d))
- provide that the consequences for an assessor of receiving a
barring notice can include losing the authority to provide
assessments (proposed paragraph 31(3)(e))
- provide for review by the Administrative Appeals Tribunal of
decisions made under the scheme (proposed paragraph
31(3)(f))
- confer powers and functions on the Classification Board and its
Director to exercise ancillary administrative functions for the
proper operation of the scheme (proposed paragraphs
31(3)(g) and (h)).
Proposed subsection 31(4) provides that the
legislative instrument may specify circumstances in which an
unclassified film or an unclassified computer game may not be
advertised.
Proposed subsection 31(5) requires the Attorney-General to consult with state
and territory Censorship Ministers before making the legislative
instrument determining the advertising scheme.
Proposed section 31(6) clarifies that the
advertising scheme does not apply to material that is likely to be
classified X18+ or RC meaning Refused Classification. Advertising
this material will continue to be prohibited.
Proposed sections 32 35 provide an alternate
scheme for assessments of likely classifications for the purposes
of advertising. The provisions would enable industry to request
that the Classification Board provide an assessment of the likely
classification of the film or computer game for the purposes of
advertising the film or game. The Explanatory Memorandum states
that it is envisaged that applicants would use this arrangement 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.[18]
Schedule 2 would enable the establishment of a
scheme for the classification of films that are episodes of a
television series.
Television is not regulated under the Classification Act.
Rather, the Broadcasting Services Act 1992 establishes a
co-regulatory scheme for broadcast services relying on codes of
practice developed by industry and registered with the Australian
Communications and Media Authority. For the purposes of classifying
films screened on television, the Broadcasting Services Act
requires that codes of practice apply the film classification
system set out in National Classification Code.
Under existing arrangements, 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 making the classification of television
series comparatively expensive for Australian industry and time
consuming for the Board.[19]
The purpose of Schedule 2 is to address this issue.
Schedule 2 of this Bill has been drafted in slightly modified
terms to the 2007 Bill. In contrast to the previous Bill, it uses a
new term television series film which is defined in item
2 as a film that comprises one or more episodes of a
television series. It can include series-related material (such as
interviews or related commentary) providing it is not self
contained material. Item 3 inserts
proposed section 14B, the key provision.
Proposed subsection 14B(1) enables an authorised
television assessor to submit an assessment together with an
application for classification of a television series film where at
least one of the episodes of the series has been broadcast in
Australia. The assessment must satisfy the requirements specified
in the scheme determined by the Minister under proposed
subsection 14B(3), be prepared by an authorised television
series assessor and be signed by, or on behalf of, the
applicant.
The scheme determined by the Minister in the form a legislative
instrument may do the following. It may:
- specify the requirements and the basis for making an assessment
(proposed paragraphs 14B(4)(a) and (b))
- specify requirements for authorising television series
assessors (proposed paragraph 14B(4)(c))
- enable the Director of the Classification Board to impose
barring notices on assessors and applicants for unacceptable use of
the assessment scheme (proposed paragraph
14B(4)(d))
- provide that the consequences for an assessor of receiving a
barring notice can include losing the authority to provide
assessments (proposed paragraph 14B(4)(e))
- provide for review by the Administrative Appeals Tribunal of
decisions made under the scheme (proposed paragraph
14B(4)(f))
- confer powers and functions on the Classification Board and its
Director to exercise administrative functions for the proper
operation of the scheme (proposed paragraphs 14B(4)(g) and
(h)), and
- specify circumstances in which an assessment is taken to be
misleading, incorrect or grossly inadequate for the purposes of
revoking a classification under new section 21AB (proposed
paragraph 14B(4)(i)).
Proposed subsection 14B(5) requires the
Attorney-General to consult with state and territory Censorship
Ministers before making the legislative instrument determining the
scheme.
Item 4 inserts proposed section
21AB. It provides that the Classification Board must
revoke a classification of a television series compilation in
situations where the Board would have given the film a different
classification if it had been aware that the assessment was
misleading, incorrect or grossly inadequate.
The Bill aims to streamline the classification process and
reduce the regulatory burden on industry.[20] Based on the parliamentary debate
that occurred on the 2007 Bill,[21] this Bill would appear to be non controversial
and have bipartisan support.
One observation relates to the method of implementing the two
schemes in the Bill through legislative instruments rather than
through the primary Act. By way of contrast, Parliament recently
enacted a similar scheme for additional content through the
Classification (Publications, Films and Computer Games)
Amendment Act 2007. The additional content scheme recommends
to the Classification Board the classification and consumer advice
for additional content which is released with an already classified
or exempt film. In contrast to this Bill, the additional content
scheme is set out in some detail in the primary Act rather than
through a legislative instrument.
The Explanatory Memorandum states the rationale for including
the advertising and the television series schemes in legislative
instruments is to ensure that the schemes are able to respond
quickly and flexibly to developments in technology and marketing
approaches should this be required.[22] On this basis, arguably a similar
arrangement could have been used for the additional content scheme
set out in the Classification (Publications, Films and Computer
Games) Amendment Act 2007.
[20]. Mr Bob Debus, Minister for Home
Affairs, Second Reading Speech , Classification (Publications,
Films and Computer Games) Amendment (Assessments and Advertising)
Bill 2008, House of Representatives, Debates, 14 February
2008, p. 321.
[21]. The House of Representatives, Debates, 9
August 2007, pp. 129 138.
Mary Anne Neilsen
14 March 2008
Bills Digest Service
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