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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-10-14 Daily Xml
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CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) (CLASSIFICATION PROCESS) AMENDMENT BILL

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. P. HOLLOWAY: I move:

Page 3—

After line 18 [clause 4]—

(1a) Section 4—after the definition of advertisement insert:

advertising scheme means the scheme determined from time to time under section 31 of the Commonwealth Act;

After line 21 [clause 4(2)]—

After the definition of approved form insert:

authorised television series assessor means a person authorised in accordance with the scheme determined under section 14B of the Commonwealth Act to prepare assessments of television series films;

After line 26 [clause 4]—

(5) Section 4(1)—after the definition of submittable publication insert:

television series film means a film that comprises—

(a) one or more episodes of a television series; or

(b) one or more episodes of a television series and series-related material if that material does not appear to be self-contained and produced for viewing as a discrete entity;

I did explain in the second reading, just to facilitate debate, that I would be moving amendments and that I would put in the explanation of those amendments. Clause 4 inserts a new definition into the bill to provide for the new commonwealth advertising scheme. The definition of 'advertising scheme' refers to the scheme determined under section 31 of the commonwealth amending act.

Section 31 of the amending act allows the minister, by legislative instrument, to determine a scheme for the advertising of unclassified films and unclassified computer games. It contains a non-exhaustive list of the things that the instrument may determine, such as specifying what messages must be displayed on or in relation to the advertising of an unclassified film or computer game and provides for the requirements relating to self-assessment by industry of the likely classification of unclassified films and unclassified computer games.

As I said, there are three amendments specifically related to clause 4 that recognise the new commonwealth scheme.

Amendments carried; clause as amended passed.

New clause 4A.

The Hon. P. HOLLOWAY: I move:

Page 3, after line 26—After clause 4 insert:

4A—Insertion of section 19AA

After section 19 insert:

19AA—Consideration of television series films

(1) The council or the minister may, for the purposes of the assessment of a television series film within the ambit of this section for the purposes of classifying the film, take into account an assessment of the film prepared by an authorised television assessor and furnished in the prescribed manner.

(2) A television series film is within the ambit of this section if—

(a) at least one of the episodes of the television series film has, before the making of the application, been broadcast in Australia on a national broadcasting service, a commercial broadcasting service, a subscription broadcasting service or a community broadcasting service; and

(b) the applicant for classification is of the opinion that the film would, if classified, be classified at a particular classification that is R18+ or a lower classification.

(3) An assessment prepared by an authorised television assessor must satisfy the requirements specified in the scheme established under section 14B of the commonwealth act.

This clause inserts a new section to allow the council or the minister, under the South Australian act, for the purposes of the assessment of the television series film, to take into account an assessment of the film prepared by an authorised television assessor. The assessment by the authorised television assessor must satisfy the requirements of the scheme established under section 14B of the commonwealth act.

New clause inserted.

Clause 5 passed.

New clause 5A.

The Hon. P. HOLLOWAY: I move:

Page 4, after line 19—After clause 5 insert:

5A—Substitution of section 22

Section 22—delete the section and substitute:

22—Classification of films or computer games containing advertisement

An unclassified film (the first film) or unclassified computer game (the first game) must not be classified if it contains an advertisement—

(a) for a film or computer game with a higher classification than the classification the first film or first game would be given if it did not contain the advertisement; or

(b) for an unclassified film or unclassified computer game—

(i) that has been assessed in accordance with this act or the commonwealth act as being likely to have a higher classification than the classification the first film or first game would be given if it did not contain the advertisement; or

(ii) the likely classification of which has not been assessed (either under this act or the commonwealth act); or

(c) that has been refused approval (either under this act or the commonwealth act).

This clause deletes section 22 from the South Australian act. Section 22 of the act currently prohibits the classification of a film or computer game if it contains an advertisement for a film or computer game that has not been classified, or an advertisement for a film or computer game that has a higher classification. The substituted section 22 makes provision for the new assessment scheme by allowing for classification of films and computer games that contain advertisements, in accordance with the commonwealth act advertising scheme.

New clause inserted.

Clauses 6 and 7 passed.

Clause 8.

The Hon. P. HOLLOWAY: I move:

Page 5, after line 4 [clause 8]—Before section 23B insert:

23AB—Revocation of classification of television series films

(1) If—

(a) The council or the minister has classified a film taking into account an assessment prepared by an authorised television series assessor under section 19AA; and

(b) the council or the minister (as the case may require) is satisfied that—

(i) the assessment was misleading, incorrect or grossly inadequate; and

(ii) if the council or the minister had been aware of the respects in which the assessment was misleading, incorrect or grossly inadequate before the classification was made, the council or the minister (as the case may be) would have given the film a different classification,

the council or the minister (as the case may require) must revoke the classification.

(2) The regulations may prescribe circumstances in which an assessment is misleading, incorrect or grossly inadequate for the purposes of subsection (1)(b).

(3) To avoid doubt, the regulations are not to be taken to limit the circumstances in which an assessment is misleading, incorrect or grossly inadequate.

The clause inserts a new section that mirrors section 21AB of the commonwealth act, and it will allow the council or the minister to revoke a classification that was made in reliance on an assessment made under the new scheme. The minister or the council may revoke such a classification if they are satisfied that the assessment was misleading, incorrect or grossly inadequate and, if the council or minister had been aware of the respects in which the assessment was misleading, incorrect or grossly inadequate, the council or minister would have given the film a different classification. Section 14B of the commonwealth act may prescribe the circumstances in which an assessment is taken to be misleading, incorrect or grossly inadequate.

Amendment carried; clause as amended passed.

Clause 9 passed.

New Clause 9A.

The Hon. P. HOLLOWAY: I move:

Page 5, after line 40—After clause 9 insert:

9A—Insertion of Part 3 Division 4

Part 3—After Division 3 insert:

Division 4—Assessments of likely classifications of unclassified films and unclassified computer games

27A—Person may apply for assessment of likely classification of unclassified film or unclassified computer game

(1) A person who is, or proposes to be, the distributor, exhibitor or publisher of an unclassified film or an unclassified computer game may apply to the council for an assessment of the likely classification of the film or computer game for the purpose of advertising the film or computer game.

(2) The application must—

(a) be in writing; and

(b) be in a form approved in writing by the council; and

(c) be signed by or on behalf of the applicant; and

(d) include any information, statements, explanations or other matters required by the form; and

(e) be accompanied by any other relevant material required by the form; and

(f) be accompanied by the prescribed fee.

27B—Council may assess likely classification of film or computer game

(1) This section applies if an application has been made under section 27A for the assessment of the likely classification of an unclassified film or an unclassified computer game.

(2) The council may assess the classification that, in the opinion of the council, the film or computer game would be likely to have if the film or computer game were classified, having regard to the material and information available to the council when making the assessment.

(3) The council may refuse to assess the likely classification of the film or computer game if the council considers that the material and information available to the council is insufficient (whether or not the council has made a request under subsection (4)).

(4) The council may request that applicant to give to the council, within the period specified in the request, further information for the purpose of enabling the council to deal with the application.

(5) The council may decline to deal with the application, or decline to further deal with the application, until the information is given to the council in accordance with the request.

(6) To avoid doubt, this section does not require the council to obtain further information under subsection (4) for the purposes of the council's assessment.

27C—Revocation of assessment

(1) If, after making an assessment under section 27B of the likely classification of an unclassified film or an unclassified computer game, but before the film or computer game is classified, the council is of the opinion that—

(a) the film or computer game contains, or will contain, material of which the council was unaware when the council made the assessment; and

(b) if the council had been aware of the material before making the assessment, it would have assessed the film or computer game as likely to have a higher classification,

the council must revoke the assessment, and must also revoke the approval of any approved advertisement for the film or game.

(2) The council must revoke an assessment under section 27B of the likely classification of a film or computer game, and must also revoke the approval of any approved advertisement for the film or game, if the applicant for the assessment makes a written request that the council do so.

(3) the revocation of an assessment or approved advertisement takes effect—

(a) when written notice of the decision to revoke is given to the applicant concerned; or

(b) if a later day is specified in the instrument of revocation—on that later day.

Section 27D—Notice of decisions

The council must give written notice of a decision under section 27B or 27C to the applicant for the assessment or advertisement concerned as soon as practicable but not later than 30 days after the making of the decision

This clause inserts a new division 4 into part 3 of the bill to allow for assessments of likely classifications of unclassified films and unclassified computer games. New sections 27A and 27B mirror the commonwealth provisions 32 and 33 and allow for persons to apply to the council for the assessment of the likely classification of an unclassified film or unclassified computer game and for the council to assess the likely classification of an unclassified film or computer game for the purpose of advertising the film or computer game.

New section 27C mirrors the commonwealth section 34 and allows for the council to revoke an assessment where it is of the opinion that the film or computer game contains, or will contain, material of which the council was unaware when the council made the assessment and, if the council had been aware of the material before making assessment, it would have assessed the film or computer game as likely to have a higher classification.

New clause inserted.

Clauses 10 and 11 passed.

New clauses 11A to 11D.

The Hon. P. HOLLOWAY: I move:

Page 6, after line 21—

After clause 11 insert:

11A—Amendment of section 67—Certain films, publications and computer games not to be advertised

(1) Section 67(1)(a)—delete paragraph (a)

(2) Section 67(1)(e)—delete paragraph (e)

(3) Section 67—after subsection (1) insert:

(1a) A person must not publish an advertisement for an unclassified film otherwise than in accordance with—

(a) the advertising scheme; or

(b) a transitional Commonwealth regulation.

Maximum penalty: $5,000.

Expiation fee: $315.

(1b) A person must not publish an advertisement for an unclassified computer game otherwise than in accordance with the advertising scheme.

(4) Section 67—after subsection (2) insert:

(3) In this section—

transitional Commonwealth regulation means a regulation under Schedule 1 Item 13 of the Classification (Publications, Films and Computer Games) Amendment (Assessments and Advertising) Act 2008 (Commonwealth).

11B—Amendment of section 68—Screening advertisements with feature films

Section 68—after its present contents (now to be designated as subsection (1)) insert:

(2) A person must not screen an advertisement for an unclassified film in a public place unless the advertisement complies with the advertising scheme.

Maximum penalty: $2,500.

Expiation fee: $210.

11C—Amendment of section 70—Sale of feature films with advertisements

Section 70—after its present contents (now to be designated as subsection (1)) insert:

(2) A person must not sell a classified film (the feature film) that is accompanied by an advertisement for an unclassified film unless the advertisement complies with the advertising scheme.

Maximum penalty: $2,500.

Expiation fee: $210.

11D—Amendment of section 71—Advertisements with computer games

Section 71—after its present contents (now to be designated as subsection (1)) insert:

(2) A person must not sell or demonstrate a classified computer game (the main game) in a public place that is accompanied by an advertisement for an unclassified computer game unless the advertisement complies with the advertising scheme.

Maximum penalty: $2,500.

Expiation fee: $210.

The proposed new clauses make amendments to sections 67, 68, 70 and 71 of the act to take into account the new advertising scheme. Section 67 of the act currently prohibits the publication of advertisements for unclassified films and unclassified computer games. The amendment removes the prohibition contained in sections 67(1)(a) and 67(1)(e) and inserts a new subsection (1)(a) and (1)(b) that prohibits the publication of an advertisement for an unclassified film or an unclassified computer game otherwise than in accordance with the advertising scheme.

Section 68 is amended to insert new subsection (2) prohibiting the screening of an advertisement for an unclassified film in a public place unless it complies with the advertising scheme. Section 70 is amended to insert new subsection (2) prohibiting the sale of a classified film that is accompanied by an advertisement for an unclassified film unless the advertisement complies with the advertising scheme. Section 71 is amended to insert new subsection (2) prohibiting the sale or demonstration of a classified computer game in a public place that is accompanied by an advertisement for an unclassified computer game unless the advertisement complies with the advertising scheme.

New clauses inserted.

Clauses 12 to 14 passed.

Clause 15.

The Hon. S.G. WADE: The bill provides some scope for organisations approved by the minister to make an application for an exemption from the act. Proposed section 79A proposes:

The Minister...may... approve an organisation for the purposes of section 77(3)—

that is, for an exemption—

if the organisation carries on activities of an educational, cultural or artistic nature.

In another place, the Attorney-General said:

If the organisation screens a film or uses a computer game, then I can exempt it from the classification process, and I do so because I can trust that organisation to abide by the classification rules without forcing it to take all its films and computer games through the classification process. I would not be able to do that for most—indeed, any—commercial organisations, because so many organisations will flout the classification rules to make a quid.

Is there any provision in the bill which precludes a commercial organisation receiving an exemption? If there is no such provision, could a predetermined position by a minister that a commercial organisation is not entitled to an exemption raise issues in relation to the robustness of the decision at administrative law?

The Hon. P. HOLLOWAY: My advice is that, under the Classification (Publications, Films and Computer Games) Act, the exemptions are provided in part 8; in particular, the section relevant to the honourable member's question would be section 77 (Exemption of approved organisations). Section 77(1) provides that the minister may, on application under this subsection, direct in writing that this act does not apply (or any of the provisions of this act do not apply) to an organisation approved under this part in relation to the exhibition of a film at an event where the film and the event are specified in the direction.

Section 77(2) provides that an application for a direction under subsection (1) may be made by an approved organisation and must (a) be in writing and (b) specify the film the organisation intends to exhibit and the event at which the film is to be exhibited and (c) be accompanied by (i) a synopsis of the story or events depicted in the film and (ii) the prescribed fee. That is what the act covers. I am not quite sure whether that covers what the honourable member is suggesting. I think he was talking about the robustness of the provision in relation to administrative law.

The Hon. S.G. WADE: The minister is correct in putting the law in terms of the exemption, but section 79(2) of the act and new section 79A(2) in similar terms lay down the characteristics of an organisation which the minister may approve for an exemption. I cannot see anything in those clauses that suggests that the commercial nature of an organisation is at all relevant. The Attorney-General in another place has said that he would not give an exemption to any commercial organisation. I am not debating whether or not that is appropriate, but if that is the government's intention then it should be in the law.

My understanding is that, if the minister made a judgment in relation to whether an organisation should be approved on grounds that are not in the law, it would be contrary to administrative law. He cannot just think up some factor that is not identified by the law and decide that that will be the determining factor. In fact, the implication in the Attorney-General's statement is that he would not even consider an application from a commercial organisation. My reading of the act is that his ministerial discretion would be constrained to the elements in the act and would not extend into other factors. I would like clarification of that and whether the Attorney-General is correctly stating the law.

The Hon. P. HOLLOWAY: The relevant part of new section 79A(1) is that the minister may, by notice published in the South Australian Gazette, on application, approve an organisation for the purposes of section 77(3) if the organisation carries on activities of an educational, cultural or artistic nature. In subclause (2) that is further qualified. It provides that, in considering whether to approve an organisation under this section, the minister must have regard to the purpose for which the organisation was formed; the extent to which the organisation carries on activities of an educational, cultural or artistic nature; the reputation of the organisation in relation to the screening of films; the possession or demonstration of computer games, as the case may be; the conditions to the admission of persons, etc.

All I can say is that on my reading it is pretty clear that it is talking about an organisation that is carrying on activities of an educational, cultural or artistic nature. Nothing in there refers to an organisation set up purely for the making of profit.

The Hon. S.G. WADE: My view is that the fact that a commercial entity can be established for educational, cultural or artistic purposes means that that can come within the act. That is my interpretation of the act, and perhaps it is best left for appropriate legal interpretation at the appropriate time. Whilst there may not be a huge number of them, it is legally conceivable that there could be a commercial organisation that meets the criteria in 79A(1) and (2) and, for that matter, 79(1) and (2).

The Hon. P. HOLLOWAY: I can only assume that the point the Attorney was making was that he would not wish blatantly commercial organisations to fit through this section as a sort of loophole. I guess any case would be on its merits, but it would be a question of whether the organisation was principally there for educational, cultural or artistic reasons or principally there to make a profit. I guess that is really a discretion the Attorney would have to exercise, and ultimately the courts would determine that.

The Hon. S.G. WADE: Again, I think the minister needs to resist the temptation to put glosses on legislation. I cannot see any reference to a primary purpose. The fact of the matter is that whether or not it is a commercial organisation is not relevant: it is whether it meets all the criteria. I agree with the minister that it will be a matter for future interpretation, and I do not intend to take the matter any further

I reiterate that this clause, as I read it, does not preclude a commercial organisation. I accept the minister's point that you would expect a commercial organisation to have drivers in its operations, which might mean that the Attorney-General would look more closely to make sure it fitted those criteria. However, there is one set of standards, and for the Attorney-General to suggest that these exemptions are not available for commercial organisations is gloss on the legislation which is not in the bill.

Clause passed.

Remaining clauses (16 and 17), schedule and title passed.

Bill reported with amendments.

Third Reading

Bill read a third time and passed.

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