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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2010-11-11 Daily Xml
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CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) (EXEMPTIONS AND APPROVALS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 9 November 2010.)

The Hon. B.V. FINNIGAN (17:15): I do not believe there are any other members intending to speak on the bill, so I thank the Hon. Mr Wade for his contribution and indication of support. If I could just address some of the amendments that the Hon. Mr Wade has foreshadowed, the proposed administrative scheme is very similar to the commonwealth scheme. It is correct to say that the commonwealth does not charge a fee for applications for exemption of films to be screened at film festivals, but it is not correct to say that there are no time restrictions for applications or no requirements for applications to be in writing or for specific information to be provided in an application to the director for such exemptions.

There may be no specific application form, but there is a requirement for particular information to be set out within an application. That includes the name and activities of the organisation that is mounting the film festival or film event, as well as any information relating to its reputation; the name of the film festival or event; the dates over which the film festival or event will run; the venue or venues at which it will take place; contact details, including a postal address, fax number, email address and daytime phone number; and an adequate synopsis of each of the films in the festival or event, including the film length and name of the director and producer.

These requirements are not in the legislation: they are set out on the Classification Website. If an application does not contain all the relevant information, it will not be processed. The website also states that organisers of film festivals and film events must make sure that the office receives a complete application at least three weeks before the start of the event or any advertising or other relevant deadline that may fall before that date. As these requirements are not in legislation, they can quickly and easily be changed.

It is the government's view that, although the commonwealth legislation does not prescribe a time or an application form, nonetheless there are those requirements on the website, and those requirements must be met in order for the commonwealth to approve. It is the government's contention that it is better for these requirements to be in the statute rather than be provided for simply by the decision of the minister or the Attorney or the director.

Rather than having some arbitrary process that could just change without any notice, we believe it is better to provide the requirements in the statute. We believe it is appropriate to have a fee which will be prescribed on a cost recovery basis, given that there would be some cost in administering the scheme at the local level, particularly given that the state does not have the resources and staff and so on that the commonwealth has available already, and they deal with this sort of matter every day. So the government will oppose the amendments to be moved by the Hon. Mr Wade. I thank him for his contribution and other honourable members for their interest in the bill. I commend the bill to the council.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. D.G.E. HOOD: Family First were satisfied with the regime in place. There are not big changes here, but there are significant changes with respect to the allocation of responsibilities, which is the main purpose of the act in terms of who can decline or approve. We are predisposed to supporting the Hon. Mr Wade's amendment. We will need to hear the debate, of course, but what he is proposing makes sense to us. We do not see the reason for the change, but given that it seems the committee will support the change, I register that sentiment and indicate that we are likely to support the Hon. Mr Wade's amendment.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. S.G. WADE: I move:

Page 3, lines 5 to 12 [clause 4(2)], inserted subsection (2)(b) and (c)]—Delete paragraphs (b) and (c) and substitute:

(b) be accompanied by documents and information of a kind prescribed by regulation.

It would be appropriate, considering this amendment has the three elements the Hon. Mr Finnigan referred to in his second reading summing up, to briefly respond. There are three elements: the level of information required; the time frames required; and, the fee. The principle the Liberal opposition is putting to the committee is that, while we do not object to the policy decision the government has made, in which it is giving South Australians another option for approvals and exemptions under the classification regime, if that is all the government is proposing to do, that is all that should be done. There should not be additional hurdles put in front of South Australians in relation to the first option.

Our intent is to make the burden on a South Australian going to the minister the same as the burden on a South Australian going to the national director. I accept the point that the Hon. Mr Finnigan makes that there is an information requirement on South Australians going to the national director, and that is reflected in our amendments. It allows the government to require information of people who want to make applications, and the Hon. Mr Finnigan kindly outlined the sort of information that both the minister and the national director would require.

The second element is time frames. If I am correctly understanding the Hon. Mr Finnigan's advice, he was suggesting that the commonwealth has a three-week time frame. This bill provides a 60-day time frame. We just want consistency. If the government wants to come back with amendments that put in a date that it vouches for us is the same as the national director, so be it. In relation to the fee, we understand that the commonwealth national director does not levy a fee. For the sake of consistency our amendment does not put a fee on South Australians who want to go to the minister.

With these hurdles being put in front of South Australians wanting to go to the minister, we think it raises doubts as to whether the government is really sincere about that option being retained. If it is not sincere and actually wants to get the minister out of the field, bring in a bill and we will discuss it on its merits. In the meantime we do not want these pseudo concurrent powers, we want real choices. If we are giving South Australians real choice, let us do that on a level playing field.

The Hon. B.V. FINNIGAN: With the Hon. Mr Wade's agreement, I assume we could treat this as a test clause because essentially the issues are the same in each one. With the current system the Attorney-General can grant an exemption at his or her discretion upon application. What we are trying to do here is put in place a straightforward and easily understood system for providing for exemptions.

As honourable members would know if they have looked at the house Hansard, what happens now is that film festivals in particular are coming up—and they may be literally in a couple of days—and the organisers have realised that they are not covered in terms of being able to screen the film legally and they have to seek an exemption; so they put in the information required and expect a very prompt response.

The information that is provided to the Attorney is normally quite sparse—and he gave some examples of that in the other place. The information will usually have a very brief synopsis of the film and often people will put yes or no as to adult language, nudity, violence or whatever. The Attorney is generally being asked to exempt films which he does not have a script for, which are often in a foreign language and which he has not seen, and we are accepting the film organiser's word that it does not contain violence, nudity, or whatever, or that they are of a standard in keeping with the classification.

That is not a system that works particularly well because it means the applications are coming in usually quite late in the day and with fairly sparse information. That puts the Attorney and the government obviously in a fairly invidious position. We do not want to stop people being able to organise film festivals or organise for the screening of films that may not have great broad commercial appeal. They are not the sorts of things that are going to be on at Marion or wherever, but people want to be able to screen those films.

We do not want to simply knock them all back on the basis that the Attorney has not had time to properly consider the film and what he is being asked to exempt. This is about creating a framework that is open and transparent and, as I said, in the statute, so it is quite clear what people need to do. At the moment, as I said in my second reading summing up, the commonwealth legislation does not prescribe a time for making an application to the director and does not provide a fee.

However, in accordance with the exemption requirements outlined on the classification website under films, festivals and community screenings, applicants need to provide the director with a complete application at least three weeks before the start of the event, or any advertising or other relevant deadline that may fall before that date. Of course, advertising may be considerably in advance of the actual screening.

If the director, who is an expert and who has the resources necessary for processing applications, given that this is their stock in trade, has determined that a minimum of three weeks is required to process an application, we consider it reasonable to require a longer time frame for applications to be processed outside that office. A time frame set by legislation, as I have said, is more transparent than one which is contained in guidelines which can be altered without reason or notice.

A prescribed fee, as I have indicated, would be on a cost-recovery basis. Covering the costs of administering the scheme is not the prime business of the unit doing it, but it is a reasonable and sensible thing to do, which is what we would expect with a lot of these processes. If an organisation has decided it is more convenient or appropriate to make an application to the Attorney-General rather than the director, the requirement to pay a reasonable cost-recovery fee is unlikely, in our view, to be a disincentive to the organisation to make the application. The time we are talking about is necessary to provide adequate time for proper consideration of the material and look at whether or not it should be given an exemption.

The commonwealth legislation, I should point out, does not provide for appeal or review of a decision by the director not to exempt a film. The only course open to an applicant, after being notified that an application for exemption was unsuccessful, is to make an application to have the film classified, and according to the classification regulations 2005, the fee for classification of a film for public exhibition is $900.

What we are trying to put in place here is a statutory, simple, straightforward and transparent process for people to be able to seek an exemption. The effect of the Hon. Mr Wade's amendments would essentially be to nullify the point of this bill. If we say there is no time requirement and there is no fee, in a sense one could argue that not much would change at all.

The purpose of the bill is, essentially, to provide a transparent, easily accessible method of seeking exemption for those organising screenings of films, for whatever reason, particularly film festivals; to try to give them an easily understood way to seek the exemptions they require, and to do that in a way that sets out the time frame and the fee, which I believe would be a fairly modest cost recovery-based fee, although I suppose 'modest' is a subjective term, depending on who is paying it. However, the purpose of this bill is to set in place that regime rather than any arbitrary scheme that can be changed at will.

As I said, the current system is that people apply to the Attorney-General for exemptions. He is put in a position where he has to make very prompt—unreasonably prompt, on occasion—decisions with fairly scant information. We want to ensure that a framework is in place that people can easily understand so that they know what they are required to do, rather than putting the Attorney in a position where he or she might take a punt—perhaps a very large punt—regarding whether the film is what it purports to be or represent.

I do not think we would want the Attorney to be placed in a position where he or she would, in the absence of the necessary time and process, make the judgement that they would prefer simply not to grant the exemption. We are trying to make this easier, more accessible and straightforward for those who are organising these types of screenings.

The Hon. S.G. WADE: I would like to respond to a couple of the points made by the Hon. Mr Finnigan. First, he keeps saying that the government wants the information to be clear in the statute, but my amendment is no less clear than the government's bill in relation to information—for example, what is required in an application. Both of them provide that 'the information shall be prescribed by regulation', so I do not think we have a difference on that point.

In relation to time frames, I reiterate the opposition's objective, which is to have a level playing field with the commonwealth. If the government wants to suggest a form of words that is a better reflection of that, then it is free to do so, but at the moment all we have is an indication from the Hon. Mr Finnigan about his understanding of the commonwealth time frames. Certainly, the Hon. Mr Finnigan makes no attempt to suggest that the commonwealth has a fee in relation to these sorts of applications, as South Australia would have. The opposition believes it is much closer to a level playing field than what the Hon. Mr Finnigan proposes.

I think the honourable member's comments actually confirm that the government's desire is to shed the minister of this responsibility. I respect the Hon. Mr Hood's concerns on behalf of Family First; if you like, they are less convinced than we are about the wisdom of the government's policy objectives. I presume that Family First, consistent with its position on a number of matters, is keen to make sure that a local decision maker, connected with local community values, is involved in these sorts of decisions.

When the Hon. Mr Finnigan says that my amendments would actually nullify the bill, it suggests to me that the intent is not to provide more options for South Australians but to clear the desk of the Attorney-General. That is not our objective. We want to take the government at its word, and make more options available for South Australians. I intend to proceed with my amendments, and ask the council for its support.

The Hon. D.G.E. HOOD: I have just a couple of questions. I am not quite sure about the mechanism for the intervention of the Attorney-General. Is the director required, in all cases, to inform the Attorney-General of his or her decision with respect to the classification or non-classification of a particular film or game, or whatever it may be? What is the mechanism in place? Will the Attorney-General be aware of all the decisions of the director? If so, how much warning or time will the Attorney-General have in order to potentially overrule the decision made by the director?

The reason I ask that—and I think the Hon. Mr Wade said it well—is that from our perspective we are not keen to see a change at all. We have had a system that has worked very well. The previous Attorney-General, I think, did an outstanding job in this regard and, as I say, it is not something we seek change on, but if the member could answer that, please.

The Hon. B.V. FINNIGAN: In response to the Hon. Mr Hood, I am advised that the director does inform the Attorney-General of exemptions and vice versa, but no time frame is defined for that process.

The Hon. D.G.E. HOOD: Thank you, Mr Parliamentary Secretary. My concern then is that we could have a situation where the director becomes aware or makes a decision and then it could be very close, as you said a moment ago, to the actual screening date of a movie—if it is indeed a movie—and the Attorney-General has almost no time in reality to make a decision. It would be almost impractical for him or her—him at the moment—to overrule the decision of the director, because the film may be showing that night and arrangements have already been made, etc. So, I think it potentially places the Attorney-General in a very difficult position, because the time frames required—well, there is no time frame required—may actually make it impossible to work in practice.

As I said, I do not see the reason for the change, and I think we could find ourselves effectively taking these decisions largely out of the hands of the Attorney-General and putting them in the hands of a public servant. From my perspective, I think it is very useful to leave it in the hands of a publicly elected person, because they will then face the pressure of the electorate and are certainly more susceptible to outside voices than a public servant would be. Anyway, that is not the will of the council, but I think this could be a real problem and that what we might find is that the Attorney-General in many cases will have no choice but to go with the decision of the director.

The Hon. S.G. WADE: I would just like to respond to the Hon. Mr Hood's comment. We as an opposition are not inclined to support the bill without amendments; so I would not want him to think that we are a patsy for the government.

The Hon. B.V. FINNIGAN: Just to confirm, my advice is that, as the Hon. Mr Hood says, indeed there may be a very narrow time frame between the director informing the Attorney-General and the screening of the movie, but I would point out to the honourable member that that is precisely one of the mischiefs, if you like, that we are trying to correct in this bill. At the moment, an application for an exemption can lob on to the Attorney-General's desk the Friday before, 24 hours or 30, 40 hours before the film is due to be screened, so what we are trying to do is put in place a clearer guideline and a transparent process for seeking the exemption.

I repeat my earlier point that, under the commonwealth process, currently, according to the website, there is a three-week requirement, but that is really an administrative guideline. Again, I would have thought it would be a general principle that most honourable members would support, that if something is in an act, in a statute, that gives people more clarity and certainty as to what a process is, than one that can be arbitrarily changed according to the process that the Attorney or a public servant or person in a position such as the national director would have.

The Hon. D.G.E. HOOD: I acknowledge the comments of the parliamentary secretary and, in fact, I agree with him. I think that putting in place a time frame is not a bad thing at all. I think it is probably a good measure. My issue is that there is no definite requirement, really. As I said, I think we are going to face a situation where the Attorney-General will be backed into a corner in certain circumstances. The solution to me would have been to put in place a time frame and leave the system as it is.

The Hon. S.G. WADE: I merely make the observation that, in the last response, the Hon. Mr Finnigan revealed that we actually have no enforcement at the commonwealth level of the requirements that this government is trying to put in here. He has just indicated that the three-week requirement is an administrative practice, not an enforceable legislative requirement which, as such, is what has been put before us today. I think that suggests that, on all three counts, my amendments are more reflective of the commonwealth practice.

The Hon. M. PARNELL: Just to assist the committee and to make sure that we do not have any unnecessary divisions, the Greens have carefully considered the amendments of the Hon. Stephen Wade but we are not convinced that the bill as presented needs amendment. So, we will be supporting the government's position.

The Hon. A. BRESSINGTON: I will be supporting the amendment.

The Hon. B.V. FINNIGAN: Can I just reiterate, particularly to the Hon. Mr Hood, that all states, apart from Queensland—which, I am advised, has brought back some ability for the Attorney-General to intervene—have handed over the ability to grant exemptions to the national director. Sorry, I am advised that Queensland cannot intervene, but other states have handed over the ability to make exemptions. Essentially, it is no longer a power that the Attorney-General has. I point out to the Hon. Mr Hood in particular that what this bill does is continue to enable the Attorney-General, of his own volition or upon receiving a complaint from the public, to review a decision made by the national director.

The Hon. D.G.E. HOOD: I thank the parliamentary secretary for his response. I understand that; that is my understanding of the bill. All I can say is that, if a bill was presented to this place to try to align us with the other states in terms of removing the Attorney-General from that process, we would oppose it. I support the amendment.

The committee divided on the amendment:

AYES (11)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Dawkins, J.S.L. Hood, D.G.E. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. Stephens, T.J.
Vincent, K.L. Wade, S.G. (teller)
NOES (8)
Finnigan, B.V. (teller) Franks, T.A. Gazzola, J.M.
Holloway, P. Hunter, I.K. Parnell, M.
Wortley, R.P. Zollo, C.
PAIRS (2)
Ridgway, D.W. Gago, G.E.

Majority of 3 for the ayes.

Amendment thus carried; clause as amended passed.

Clauses 5 and 6 passed.

Clause 7.

The Hon. S.G. WADE: I move:

Page 3, lines 24 to 26 [clause 7(2), inserted subsection (1a)]—Delete subsection (1a) and substitute:

(1a) An application made to the Minister under subsection (1) must be in writing.

Further to the Hon. Mr Finnigan's comments earlier, I understand the government was happy for the first amendment to be a test for the remainder, in which case I would suggest this is consequential, and I ask for the committee's support.

The Hon. B.V. FINNIGAN: I can confirm that the other amendments are all in line with the will of the council expressed in the previous division. So, while the government opposes the amendments, we will not divide on them.

Amendment carried; clause as amended passed.

Clause 8.

The Hon. S.G. WADE: I move:

Page 4, lines 6 to 8 [clause 8(2), inserted subsection (1a)]—Delete subsection (1a) and substitute:

(2) An application made to the Minister under subsection (1) must be in writing.

Amendment carried; clause as amended passed.

Clause 9.

The Hon. S.G. WADE: I move:

Page 4, line 39 to page 5, line 5 [clause 9, inserted section 79C(2)]—Delete subsection (2) and substitute:

(2) An application made to the minister under subsection (1) must be in writing.

Amendment carried; clause as amended passed.

Remaining clause (10) and title passed.

Bill reported with amendment.

Third Reading

Bill read a third time and passed.

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