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
Parliamentary Library
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