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House of Assembly - Fifty-First Parliament, Second Session (51-2)
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CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) (CLASSIFICATION PROCESS) AMENDMENT BILL

Introduction and First Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs) (15:45): Obtained leave and introduced a bill for an act to amend the Classification (Publications, Films and Computer Games) Act 1995. Read a first time.

Second Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs) (15:45): I move:

That this bill be now read a second time.

The National Classification Scheme is an arrangement between the commonwealth, states and territories established under the 1996 intergovernmental agreement for a cooperative censorship scheme. The commonwealth Classification (Publications, Films and Computer Games) Act 1995, the commonwealth act, establishes the framework for the classification of publications, films and computer games and a review of classification decisions. The states and territories each have complementary classification or censorship legislation, whichever you prefer to call it. I prefer to call it 'censorship legislation' and myself a censorship minister and, indeed, one of the best debates at the Ministerial Council on Censorship was whether we should be censorship ministers or classification ministers, and I am pleased to say that, for a change, my fellow Labor attorneys-general supported me on a censorship matter and supported the view that we should be known as censorship ministers, so that we could call the evil by what it is—not that I regard it as an evil.

Early in 2007, the commonwealth act was amended to integrate the Office of Film and Literature Classification into the commonwealth Attorney-General's Department and to streamline the film classification process by introducing an additional content assessment scheme for fast-tracking the classification process for additional content released with already classified or exempt films and removing the requirement for compilations of already classified films to be reclassified.

Amendments integrating the Office of Film and Literature Classification into the commonwealth Attorney-General's Department came into effect from 1 July 2007, and the complete commonwealth Classification (Publications, Films and Computer Games) Amendment Act 2007 started on the ides of March 2008, a date very familiar to me because it is my wedding anniversary. Members will recall—

The Hon. J.D. Hill: Romantic, isn't he? He probably remembers his anniversary because of that act.

The Hon. M.J. ATKINSON: That's right. 'Oh, dear, it is the anniversary of the act, dear.' Members will recall that, when the Howard government removed the statutory body status of the Office of Film and Literature Classification and moved it into the Attorney-General's Department, as a parting gift to the people of Australia they made Donald McDonald the head of it. Changes to the commonwealth act require some cognate amendments to the South Australian Classification (Publications, Films and Computer Games) Enforcement Act 1995 and the classification enforcement laws in other jurisdictions. The consequential amendments to the South Australian act are in this bill.

I was delighted to receive Mr Donald McDonald at the Standing Committee of Attorneys-General meeting in the Barossa Valley at Tanunda just last week, and the member for Schubert accepted my invitation to be there, and I thank him for that. I thanked Donald McDonald for making his way from Sydney to the meeting, and I was delighted to observe that Donald McDonald is a Spectator reader. I suspect we are the only Spectator readers in SCAG.

With those remarks, I seek leave to incorporate the remainder of my second reading explanation in Hansard without my reading it.

Leave granted.

The new Commonwealth administrative arrangements are based on the recommendations of the report made by John Uhrig AC, who conducted a review of the corporate governance of Commonwealth statutory authorities and office holders. The amendments are intended to reinforce the independent functions of the Classification Board and the Classification Review Board. They confine the existing powers of the Director to matters associated with the Board and give separate statutory powers to the Convenor for matters associated with the Review Board, and transfer from the Director of the Classification Board to the Attorney General, as Minister administering the Act, responsibility for delegated legislation. This includes the power to determine markings to be displayed about classified material to be exercised in consultation with State and Territory censorship Ministers.

The Bill amends the South Australian Act to take account of the administrative changes. In particular, the Bill inserts a definition of 'convenor' and 'classifiable elements' into the Act and amends the definition of 'approved form' to take account of the Commonwealth Act now providing for the Commonwealth Minister, and not the Director of the Classification Board, to approve a form for notice about classifications.

The Commonwealth amendments, which are aimed at streamlining the classification process and reducing the regulatory burden on industry, introduce an additional content assessment scheme, alter the definition of 'film' and allow for certain modifications, such subtitles, captions, dubbing and audio descriptions or the addition of navigation aids, to be made to already classified films, without affecting their classification.

The effect of the definition of 'film' in section 14 of the Commonwealth Act is that when a previously classified film is released with additional material, such as on a DVD, the new release is a new 'film' which is unclassified. The definition of 'film' has been expanded to provide special rules for the classification of films that comprise classified films, exempt films and additional content. New section 14A of the Commonwealth Act makes it clear that when several previously classified films are brought together for distribution as a single package, the product does not require classification simply because it is a compilation. The amendment is a response to changing technology.

The amendments to section 21 of the Commonwealth Act allow for the addition of descriptions or translations and navigation functions to classified films without requiring reclassification under section 21. Navigation functions improve the usability of video discs without changing, or adding to, the content of the film. They include menus from which the user makes choices using screen icons or a list of options, and simple functions such as 'fast forward' or the ability to choose particular scenes of the movie or additional content, such as interviews with the actors of the film. Descriptions or translations include subtitles, captions, dubbing and audio descriptions providing interpretation that allow people with visual or hearing impairments or language barriers to access already classified films.

The Bill accommodates the new definition of 'film' and the amendments to section 21(2) of the Commonwealth Act by amending section 23(2) and inserting new section 23AA into the South Australian Act. New section 23AA provides for the compilations of classified films to be dealt with as if each of the classified films were on a separate device. As it would be an offence under section 54 of the South Australian Act to sell or publicly exhibit a classified film unless the film is sold or exhibited with the same title as that under which it is classified, the Bill also amends sections 28 and 37 of the Act so that films that are modified in accordance with section 21(2) of the Commonwealth Act, or are compilations, can be lawfully sold and exhibited in South Australia.

The additional content assessment scheme introduced by the Commonwealth was worked up after public consultation on a discussion paper released early in 2007. The scheme is based on the successfully operating authorised computer games assessor scheme. Under the new scheme, a person appropriately trained and authorised by the Director may recommend to the Classification Board the classification and consumer advice for additional content released with an already classified film. The Classification Board retains responsibility for classifying the film, but will be helped by the assessment of an authorised assessor. Additional content in a film includes additional scenes for a classified or exempt film, such as alternative endings, a film of the making of the film and interviews with and commentaries by actors and other persons who took part in the making of the film, but does not include a work or any other material prescribed by the regulations. Additional content may also be prescribed by the regulations. Consistent with the Commonwealth amendments, the Board must revoke classifications in specified circumstances that demonstrate that the assessment on which the classification was based was unreliable and the Board would otherwise have made a different classification.

The Bill takes into account the additional content scheme by inserting new section 21A into the South Australian Act. This will allow the South Australian Classification Council or the Minister, for the purposes of the assessment of additional content associated with a film, or the formulation or publication of consumer advice about additional content associated with a film, to take into account an assessment of the additional content prepared by an additional content assessor and furnished in the prescribed manner. The Bill also inserts into the South Australian Act the amended Commonwealth Act definitions for 'additional content' and 'additional content assessor'.

Finally, the South Australian Act, although primarily concerned with offence and enforcement matters, also provides some scope for organisations approved by the Minister to make an application for the exemption from classification of a specific film at a specific event. The Commonwealth, Victorian Act, New South Wales and Queensland Acts all now apply the exemption to computer games. This Bill amends section 77 of the South Australian Act to extend its application to computer games, in line with other States and the Commonwealth classification legislation. The same tests that apply to the decision to approve an organisation for the grant of an exemption from classification of a film will apply in the case of a computer game. That is, the Minister must have regard to the purpose for which the organisation was formed, the extent to which the organisation carries on activities of a medical, scientific, educational, cultural or artistic nature, the reputation of the organisation in relation to computer games and the conditions it intends to impose about the admission of people to exhibitions of computer games.

The proposed amendments are consistent with the changes enacted by the Commonwealth and will help to maintain the uniformity of the classification scheme.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

The measure will be brought into operation by proclamation.

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Classification (Publications, Films and Computer Games) Act 1995

4—Amendment of section 4—Interpretation

This clause incorporates additional definitions in connection with the new provisions that are to be enacted by this measure. A definition relating to additional content is to be inserted. Another definition will allow an approved form to be a form approved under section 8A of the Commonwealth Act. (New section 8A of the Commonwealth Act provides that the Minister may approve a form for a notice about classification. As the note in the new section 8A in the Commonwealth Act explains, State and Territory legislation requires sellers and exhibitors of classified material to display a notice about classifications where the material is sold or exhibited.)

Clause 4 also inserts a definition of Convenor to mean the Convenor of the Review Board appointed under section 74 of the Commonwealth Act. Various amendments are required to give effect to the new amendments to the Commonwealth Act to give new powers to the Convenor for matters associated with the Review Board. These include obtaining copies of material to be reviewed, considering applications for waiver of fees, and issuing classification certificates.

5—Insertion of section 21A

This clause will allow the Council or the Minister to take into account an assessment of additional content prepared by an additional content assessor authorised under the Commonwealth Act.

6—Amendment of section 23—Declassification of classified films or computer games

This amendment reflects amendments made to the Commonwealth Act to provide that certain additions or removals will not lead to the declassification of a film.

7—Insertion of section 23AA

This clause inserts a new section 23AA in the Act. New section 23AA provides that a film that is contained on 1 device and consists of only 2 or more classified films, is to be treated for the purposes of this Act as if each of the classified films were on a separate device. The amendment is consistent with new section 14A of the Commonwealth Act.

(New section 14A of the Commonwealth Act makes it clear that, when several previously classified films are brought together for distribution as a single package, the product does not require classification simply because of the fact of compilation. The Commonwealth Act now recognises that, with changing technology, there is increasingly the capacity to put a number of already classified films on the 1 storage device. The Commonwealth Act clarifies that a new application and classification of a compilation of already classified films on a single storage device is not required as it does not constitute a new film.)

8—Insertion of section 23B

This clause will allow a classification based on an assessment prepared by an additional content assessor to be revoked in an appropriate case.

9—Amendment of section 26—Approval of advertisements

This amendment provides consistency with the Commonwealth Act.

10—Amendment of section 28—Exhibition of film in public place

This clause inserts a new subsection (2) at the end of section 28.

Section 28 provides that a person must not exhibit a film in a public place unless the film is classified, is exhibited with the same title as that under which it is classified and is exhibited in the form, without alteration or addition, in which it is classified.

Section 28(2) provides that section 28 is not contravened by reason only of the exhibition of a classified film under a title different from that under which the film is classified if it is contained on 1 device that consists only of 2 or more classified films.

Section 28(2) is required to prevent films that fall within section 14A of the Commonwealth Act (and new section 23AA to be inserted in the principal Act) from being captured by the offence in section 28. For example, in circumstances where a classified film or films contained on 1 device was or were screened in a public place, and the film(s) were screened under the title given to the compilation of the films on the 1 device, rather than screened under the title under which the film(s) were classified.

Section 28(2) also provides that it is not an offence to exhibit a classified film with a modification referred to in section 23(2) of this Act or section 21(2) of the Commonwealth Act. This is required to make sure the offences are consistent with the classification requirements under the legislative scheme. For example, section 21(2) of the Commonwealth Act provides that the following modifications to a film do not require it to be reclassified under section 21 of the Commonwealth Act:

(a) including or removing an advertisement, other than an advertisement to which section 22 of the Commonwealth Act applies;

(b) for an imported film or computer game that was in a form that cannot be modified and has subsequently been converted to a form that can be modified—removing from the film or game certain specified advertising material;

(c) for a classified film—the addition or removal of navigation functions;

(d) for a classified film—the addition or removal of material which provides a description or translation of the audio or visual content of the film and would not be likely to cause the film to be given a higher classification.

11—Amendment of section 37—Sale of films

This clause inserts new section 37(2) at the end of section 37 of the principal Act. Section 37 provides that a person must not sell a classified film unless the film is sold under the same title as that under which it is classified and in the form, without alteration or addition, in which it is classified. Section 37(2) provides that section 37 is not contravened by reason only of the sale of a classified film under a title different from that under which the film is classified if it is contained on 1 device that consists only of 2 or more classified films.

Section 37(2) is required to clarify that films which are captured by new section 14A of the Commonwealth Act (and new section 23AA to be inserted in the principal Act) are not captured by the offence in section 37. For example, in circumstances where classified films contained on 1 device are sold under a title different from the title under which each film was classified.

Section 37(2) also provides that it is not an offence to sell a classified film with a modification referred to in section 23(2) of this Act or section 21(2) of the Commonwealth Act. Such a modification does not require the film to be reclassified. This amendment is required to make sure the offences are consistent with the classification requirements under this Act and the Commonwealth Act.

12—Amendment of section 72—Advertisement to contain determined markings and consumer advice

This clause is consequential on amendments made to the Commonwealth Act.

New section 8(1) of the Commonwealth Act empowers the Minister (rather than the Director of the Classification Board) to determine markings for each type of classification giving information about the classification and to determine the manner in which markings are to be displayed. Omitting the phrase 'by the Director' from section 72 is required to make the section consistent with the Commonwealth Act.

13—Amendment of section 77—Exemptions—organisations

14—Amendment of section 79—Organisation may be approved (section 77(1))

15—Insertion of section 79A

These clauses facilitate exemptions for organisations that carry on activities of an educational, cultural or artistic nature. The scheme is consistent with provisions that have been enacted interstate.

16—Amendment of section 83—Evidence

17—Amendment of Schedule 1

These amendments are consequential.

Schedule 1—Transitional provisions

1—Transitional provisions

The schedule contains transitional provisions consistent with the arrangements for amendments to the Commonwealth Act.

Debate adjourned on motion of Ms Chapman.

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