CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) (EXEMPTIONS AND APPROVALS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 15 September 2010.)

Mr WILLIAMS: Madam Speaker, I draw your attention to the state of the house.

A quorum having been formed:

Ms CHAPMAN (Bragg) (11:25): I am pleased today to speak on behalf of the opposition in support of the bill. This matter comes before the parliament as a result of a bill being introduced by the Attorney-General on 15 September this year. The history of the development of a national classification scheme, which now incorporates a joint commonwealth, state and territory legislative and administrative scheme, stems from a report undertaken by the Australian Law Reform Commission back in 1991. That was tabled in the federal parliament and, in summary, it provided amongst its major recommendations on the question of censorship procedure as follows:

the rationalisation of existing Commonwealth, State and Territory legislation into a national scheme;

the upgrading of the Commonwealth's existing 'voluntary' scheme for the classification of literature to a 'partially compulsory' scheme which focuses primarily on adult material;

implementation of a compulsory classification scheme for computer games;

the revision of the censorship fee sharing arrangements;

widening the right to appeal against classification decisions to include members of the public but not 'mere meddlers'.

It should be noted that this last recommendation was not adopted by the existing commonwealth and state attorneys-general at the time but, nevertheless, a new regime came into effect circa 1995, when each of the state and federal parliaments dealt with the recommendations by introducing legislation consistent with a uniform national scheme for the classification of publications, films and computer games.

The national scheme also deals with issues of advertising, sale, demonstration, exhibition and, in particular, the regulation thereof. Under this scheme, the commonwealth act empowers a classification body, which is the Classification Board, to classify publications, films and computer games in accordance with the commonwealth act. Furthermore, a national classification code and classification guidelines operate to fulfil that objective.

Unlike other jurisdictions, South Australia has maintained a separate classification regime that can, if triggered, classify publications, films and computer games independently of the commonwealth classification and the Classification Review Board. Back in 1995, South Australia enacted its complementary enforcement legislation, the Classification (Publications, Films and Computer Games) Act 1995, which determines how films, publications and computer games can be sold, hired, exhibited, advertised and demonstrated.

It is important to note for the purpose of the proposed legislation now before us that each of the enforcement acts of the states contains provisions allowing for films, computer games and publications to be exempt from the act and for organisations seeking exemptions to be approved for that purpose.

South Australia's powers of exemption and approval are contained in part 8 of the act. Under this part, the minister may, on application, direct that the act does not apply, to the extent and subject to any specified conditions specified in the direction, or in relation to a film, publication, computer game or advertisement pursuant to section 76; or may exempt organisations either in relation to the exhibition of a film at an event or in respect of all or any of its activities. That is under sections 77, 79 and 79A.

I note, with interest, the contribution made by the Hon. K.T. Griffin, attorney-general, in his second reading explanation on 27 July 1995 in which he outlines the background of the bill being considered at that time by the parliament, the national scheme, its history and the like. In that contribution he points out:

The State Bill contains exemption provisions in Part 8 to exempt a film, publication, computer game or advertisement from the classification process. This will be used only in certain instances such as film festivals. The State Bill also allows for the imposition of conditions as to the admission of persons to the screening of films.

So, I think it was very clear, at the time that our state legislation was introduced back in 1995—my understanding is that that bill (now our act) passed with the support of the opposition of the day—that this exemption application by a state body would only be used in limited circumstances.

Part 8 of the explanation of clauses sets out all the conditions that could be imposed for an exemption to be granted, which were certainly very general and very broad. I think it is important to note that a number of matters needed to be taken into account for the approval of an organisation for the purposes of gaining the exemption that we are talking about, whether the minister of the day or the national director were to approve that application for exemption. They were:

(a) the purpose for which the organisation was formed; and

(b) the extent to which the organisation carries on activities of a medical, scientific, educational, cultural or artistic nature; and

(c) the reputation of the organisation in relation to the screening of films; and

(d) the conditions as to admission of persons to the screening of films by the organisation.

That approval, of course, could be revoked if there were any change in the circumstances which were relied upon for the purposes of the initial approval.

I mention that because there have been applications made under part 8, at a state level, for events, and I can recall one in the short time I have been here in the parliament. My recollection is that it was an application for exemption to allow the screening of a film that had not been classified, but had been prepared in Israel, and it was to be screened in a public auditorium (in fact, at the Trak Cinema in my electorate) during the period of a celebratory festival of the Jewish community.

It is fair to say that the content of the film was very pro-Jewish—hardly surprising—and content which, I think it is fair to say, some in the community would have said was on the boundaries of propaganda and, therefore, they raised some objection to it. Nevertheless, the former attorney-general, under this government, made whatever decisions were necessary to approve its screening. I am not sure that it had a huge audience, but it was important for the festival that was being celebrated and it was duly screened.

So, there are circumstances when, clearly, the local minister would have more of a local understanding of the prevailing circumstances surrounding the importance or otherwise of an exemption being granted than, surely, a national director who does not sit here in Adelaide and who probably never will. So, I just make that point about the significance of retaining that local power.

For the record, I outline that, in South Australia, the power to grant the exemptions and approve organisations is conferred on the minister. All other states and territories, except Queensland, confer the power to grant exemptions and approve organisations on the director of the classification board, either alone or concurrently with the minister. Queensland has amended its legislation to confer the power on the director and the minister concurrently, but these amendments, at least according to the briefing I have at this stage, are yet to commence.

The advantages advanced by the Attorney-General in his presentation of having the director of the Classification Board make the exemption and approval decisions are: first, that the director has the relevant expertise and resources to properly assess films, publications, computer games and organisations seeking approval; and, secondly, decisions will be more consistent, that being more relevant to exemption applications for films. Many films that are the subject of exemption applications are screened in more than one state or territory, often being screened at several film festivals, and therefore it is suggested that it makes sense for the one decision-maker to consider all applications for exemption in relation to the one film.

I say this: first, it is important that we have a local assessment by a local person who will be familiar with it; and, secondly, it will make no difference, I suggest, whether a minister makes this decision or a director, on the basis of expertise/relevant resources. Each person in those circumstances will be making a decision after receiving a full briefing from whatever the resources of the department are. So, I do not actually accept that. What has happened, though, is that, under this bill, sections 76, 77, 79 and 79A confer the power to grant exemptions and approve organisations on the director, but the minister will retain a power to grant exemptions and approve organisations. Queensland, on our understanding, does not provide for that overriding power.

As I read these proposals, the executive of government steps back from the responsibility of making decisions—in this case retaining some role but not the primary role—and elevates chief executive officers or directors to undertake this role, for the reasons I have outlined. So, we end up with a hybrid situation. The director makes the decision—or he is the appointed person to do it (assuming that they do not go down the national director role, or, if they do, that they exercise the director's role locally as well); and then, if somebody does not like it, the minister may step in—'may'—and under section 79C, 'the minister may revoke the decision of the national director'.

So, we have this situation where, instead of having what I would describe as a clean and proper appeal process, we have a bit of a dog's breakfast. Of course, we are asking for some local flavour to be left in this, but we end up with a situation where a national director or a director (a non-minister as such) undertakes that role and then the minister may come in and deal with it.

The autonomy and relevance of the minister in these circumstances I think is very much diminished. It is probably a token offering that has been reached in an agreement at COAG to keep this small role for the minister, but I think it upsets the proper process of how we should be dealing with matters. This legislation is not unique to the extent that ministers retain a decision-making role. The immigration act is riddled with circumstances where the federal minister for immigration retains a lot of what I would call, for the sake of this argument, reserve powers to be able to make decisions that override what departmental people decide in the processing of applications, particularly for people who may be applying for a visa and/or migration status.

To identify something closer to home, we had very significant amendments to legislation under the public health obligations and the decision-making role when it came to outbreaks of contagious disease. The famous swine flu epidemic, which was apparently a pandemic, was the basis upon which the Minister for Health brought into this parliament (I still say) draconian legislation to elevate the power and decision-making role of the Chief Executive of the Department of Health—I think I anointed him as King Tony at the time—that could essentially shut down streets, stop traffic and stop people moving into certain areas in a situation where there was a major threat to public health and safety.

This is a role, frankly, that I still think should be reserved only for someone at the police level, but, in any event, should always be with the approval of cabinet and/or a minister. It is fair to say that, by the time we got through that hotchpotch of legislation, the minister had agreed that any decision by the chief of executive of health in these extraordinary circumstances would have to be backed up by having the approval of the relevant minister; the person who actually comes into this parliament and who should always have that decision-making role.

I do not suggest for one moment that this is on the same level as a terrorist attack or a public health and safety issue for the general public, but I think we should always move with caution in South Australia when we sign up to national agreements, allegedly in the interests of making things simpler, cheaper, easier, more accessible and so on, and that uniformity ought to be the prevailing panacea for legislative reform, only to find out later that it has some defect.

I indicate that, whilst the original proposals back in 1991 of the Australian Law Reform Commission had merit and were picked up in the proceedings, South Australia maintained its position. It will maintain a little bit of its position if this bill goes through, but I simply say that it should be moving with caution. At the very least, even though I think the Attorney-General's position has been relegated–and I think even described disrespectfully in the bill as an add-on—it does not sit well with me, but it is not one that we will be opposing.

It is fair to say—and I just say it for a procedural point of view—that the bill that we are currently considering is clearly structured not only to provide the national director to exercise powers under the state act but to encourage people to go to the national director rather than the minister. Applications to the minister need to be lodged 60 days in advance. There is no time limit on the national director. Applications to the minister need to be in writing and accompanied by specified information, whereas there is no such requirement with the national director. Applications to the minister are subject to fees, whereas there is no fee with the national director.

All of these, of course, are designed to encourage people to go off to the national director by putting up the barbed wire barrier of cost around the minister and, if you fail with him or her, then presumably you would have to jump a few hurdles and you could still get to the minister in this backup system that we are now going to have. In any event, we would say that what is important is that, when the Attorney-General is considering the regulations and guidelines that go with this legislation, at the very least if there is no fee to go to the national director, there should not be with the minister. It is hard to imagine how you would not have to put a certain amount of information before the national director to have him or her deal with the matter, but the same threshold should surely be there for the minister.

If we follow this legislation, in the circumstances, limited as they may well be, an application to the minister could follow where someone is unhappy with the national director's decision, and we do not consider that those barriers of cost, time limit and prescription of applications in writing with specified information should impede the applicant in those circumstances. So we may look at amendments between houses to ensure that there is not that same impediment, barrier or barbed wire fence before the matter is dealt with in another place. In those circumstances, I give notice to the house that amendments may well be tabled in another place. I do not believe that others are stimulated to speak on this debate from our side of the house. It is a most interesting matter, but nevertheless I hope that that outline is sufficiently clear for the government to understand our position.

The Hon. J.R. RAU (Enfield—Attorney-General, Minister for Justice, Minister for Tourism) (11:49): I thank the honourable member for Bragg for her contribution. There are a couple of matters that the honourable member mentioned that I would like to address because I appreciate the thorough and considered approach that she has obviously given to this matter. The first one is that I assure the honourable member that my slavish adherence to COAG principles has nothing to do with this bill because, as the honourable member knows, I am one of the least enthusiastic people in this building about uniformity for uniformity's sake and always have been. I cannot stress enough how little COAG has to do with this bill. That is the first point.

The second point is that, as the honourable member pointed out, basically two reasons were advanced in the briefing for this piece of legislative change. The first one was that the Classification Board had the expertise and experience to be able to deal with these matters. The second one was that a uniform approach at a national level probably was not a bad thing. Both of those points are in fact genuine and serious points. First of all, as to the director of the Classification Board, can I say this: the Department of Justice, the Attorney-General's Department and indeed my office and I cannot really by any stretch of the imagination be described as film critics or indeed experts on the nuances between various classifications of film.

I cannot tell you or anybody in this chamber, for instance, how a particular cartoon winds up being G and another one PG. I am not quite sure where they drop that line. I do not know where they drop the line between PG and M or between M and MA, and when you start getting to the line between MA and R I am completely puzzled. I honestly do not know how one works that out. So, there is a genuine and real lack of expertise on my part as the minister and, believe it or not, I do have a lot of other things to do. Indeed any of those sitting opposite who in due course wind up occupying one of these positions will find that you have things to do.

To sit down and watch movies for days on end is not a productive use of your time and, even if you did, you would not actually know how to apply the guidelines because you are not doing that all the time, although I suspect you would be. You would be doing nothing else but watching movies. There is nobody in the Attorney-General's Department who is a film expert.

Ms Chapman interjecting:

The Hon. J.R. RAU: The member for Croydon might be interested in this as a job. That is a good point and I confess that I have not raised it with him but I do not know whether the honourable member would be pleased or happier with me delegating this responsibility to the member for Croydon rather than the Director-General in Canberra. I am not sure, but I am happy to take her advice on that in due course. I do know that he would be very thorough if he were to be delegated that responsibility. I daresay there would be a fairly thorough examination of it.

That is a genuine point: there is in fact expertise reposed in the national body which does not sit within the state body. Therefore, as a matter of general principle, it seems to me that it would be better to take advantage of that central expertise as the basic default setting, if you like, and then say that, in the event that someone in South Australia for some reason has an issue about that default setting, they are welcome to come to the state minister and say to the state minister, 'Look, we think they've got it wrong' for whatever reason, make their case and then the state minister can intervene and override that default position.

Then, if I can emphasise this to the honourable member, it would be the minister focusing his or her entire attention on that one matter, that one film that has been the subject of concern among members of the community in South Australia. It would not be a matter of the minister having to review perhaps hundreds of these things and find the needle in the haystack when the minister is not actually necessarily fluent in Farsi or Hindi or Iraqi or Pashtun or whatever other language these films are in, because some of the offensive material may not be entirely graphic material. It might be dialogue.

The honourable member mentioned the Jewish film. There may be certain members of our community not from that particular country who might have found that film annoying for one reason or another. I do not know; I did not see it. The point is again, when you start going into these foreign-language films, even if you think you are sufficiently skilled to pick the dividing line between M and MA and R, I can promise the member for Bragg and all those present, whilst I am reasonably fluent in English and passable in one other European language, I am not competent in any of the other languages that come by. I would not have a clue, and none of my staff would either.

Mr Kenyon: Why don't you learn them?

The Hon. J.R. RAU: Well, I could quote Manuel from Fawlty Towers, but I will not go there. That is a genuine point, and I think it is one that I would urge the honourable member to think about between the houses. From that flows the point I was trying to make again about the importance of that default setting. It does give the minister an opportunity to consider, in a focused way, controversial matters rather than expect the minister to pick the controversy out of a maze of other possibilities.

The honourable member also talked about the particular provisions that provide the default setting, which include, as the member quite reasonably interpreted, some barriers; although barbed wire might be a little bit extensive, I accept there are barriers there. I want to explain why that is the case because honourable members may not be aware of how these things function, and I can absolutely confess that I was not either until confronted by it.

I can assure members that there are a lot of film festivals and that they are not once a year events—every community has them all the time. The people who are organising these are not necessarily your David Stratton-type individuals. They are just Mr X who is a bit of a luminary in the Afghan community, or whatever, and they bring these things in. They assume that, because a classification has been granted by the federal people and they have been allowed to bring them in, they are allowed to show them.

The consequence is that it is only perhaps on the Thursday before the Saturday, when the movie is on, that somebody tumbles to the reality that they do not have permission to show these films. They have already sold all the tickets, and they have already told 150 smiling faces that they are about to go and see a fabulous film in Pashtun or whatever it is. Unfortunately, it is illegal.

What happens then is that there is a mad scramble around the place. 'What are we going to do? How are we going to fix it?' The answer is: you have to go to the Attorney because the Attorney is the only person who can give you permission to do this, so woe betide them if the Attorney is away. If the Attorney is in Melbourne or somewhere at a meeting for that day when they need that signature, bad luck: they either run the illegal film or they call off the event.

I am not exaggerating when I say to the honourable member that that sort of time line is common—it is extremely common—and it causes very considerable difficulties. If there are a number of films, that then means the time for the minister, or any advice the minister might be seeking to obtain in relation to these films, is compressed into what might literally be hours. That is not a reasonable or a sensible way for decisions about these things to be made, particularly when the director in Canberra has plenty of time to look at these matters and consider them.

The reason for the time stipulation is so that, in the event of somebody wishing to depart from the default position, as we have described it here, they have to give whoever the minister is plenty of time to consider what their point is. They cannot just drop it on them the day before and say, 'You fix it.' They have to get their act together, explain what their point is and give the minister a fair opportunity to consider the complaint. Secondly, if the film is in Urdu, for example, they need to have a proper and accurate translation of the film. They might need even to include some cultural material about why it is important or unimportant that this will be shown and so forth.

The prescribed fee, I admit, is something that might be a bit of icing on the cake, but it might not be very much. We can talk about how much it might be, and we can talk about the regulations, but if it turned out that people were routinely opting for this, rather than another way of dealing with things, it might be necessary to make it something they would at least think about before they did it. I can assure the honourable member that I do not have in contemplation that the prescribed fee be $10,000 or something silly like that, but it may be $50 or $100 to at least take into account some of the time and effort that will be required to be set aside in order to consider properly the application that has been made.

I hope that those remarks are at least in some way informative about why this is coming forward. I encourage the honourable member please not to fiddle with section 79C too much between the houses because there are good reasons for it being as it is. I cannot emphasise this enough: imagine you are about to finish work on a Thursday and an urgent application comes in about one of these films going to run on the Saturday, 200 people or 150 people have bought tickets, the organisers are very enthusiastic and they say, 'Look, if you don't sign off on this thing we have to cancel the whole event.'

Then you receive a series of short summaries (because there is no time for them to give you the films or the full dialogue or anything) which go something like this—and I am not picking on one but this is a paraphrasing of them—two men meet in a bar; they discuss their early life; time sequence back to childhood; man in room with nun; nun talks to man; some nudity; people use various language; time travel, etc. This tells you absolutely nothing; nothing at all. Then you rely on—

An honourable member interjecting:

The Hon. J.R. RAU: It tells you a bit, and you probably would want to go and see it, wouldn't you? I have told you enough. I think that one might have been in Spanish so I do not know if you would have enjoyed it that much. The point is that, if you only have a very limited time, and that is all you know about it, you are relying entirely on the person who has prepared the précis—which may or may not be accurate. Then, at the bottom of that, sometimes if you are lucky, you get a little thing that reads 'Violence no; nudity no', etc. Again, there is absolutely no opportunity to consider that independently.

The paradox is that by retaining all of this authority entirely in South Australia these are being screened less thoroughly than they would be if they were run through the way that we are proposing here, which is that they are done in a place where people do have the time, the authority and experience to be able to look at these things, but we still preserve the right for people to say, for whatever reason, 'That film is going to be unacceptable, and here is why.'

Whilst I understand everything that the honourable member has said, you can be comforted in the knowledge that (a) this has nothing to do with COAG and (b) the reason for section 79 is to demonstrate that, if a person does have a consideration of this type, it will be thoroughly and properly considered. It will sift the films out into two different groups: those about which there is controversy, which will then have plenty of time for the minister of the day to look at; and those about which there is no controversy, which will be dealt with in the ordinary course by the national scheme.

It in no way prevents a local person having an argument about these matters to bring a matter forward. I assure the member for Bragg that, if the prescribed fee survives elsewhere, it is not my intention that it be some sort of Mount Everest that nobody can climb but that it is some modest recompense for the time and attention that might be required for that application to be entertained in a fair and reasonable manner. I appreciate the opposition's support here and I can only add that I encourage you to please review your views about whether you need to further disturb the text between here and the other place.

Bill read a second time and taken through its remaining stages.