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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-11-13 Daily Xml
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CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) (R18+ COMPUTER GAMES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (17:13): By way of concluding remarks, I would like to thank honourable members for their second reading contributions and their support for this important piece of legislation. This bill seeks to amend the classifications act to provide R18+ classification for computer games and to bring about consistencies with commonwealth classification legislation.

It has taken 10 long years of negotiation between the commonwealth and the states and territories, an incredibly comprehensive and long consultation period where there has been agreement around the nation to introduce R18+ classification system for games. There has been overwhelming support around the nation for this and this will help bring Australia in line with other overseas countries as well. I commend this bill to you.

Bill read a second time.

In committee.

Clauses 1 to 4 passed.

Clause 5.

The Hon. S.G. WADE: I move amendment No. 1 [Wade-1]:

Page 3, line 9 [clause 5, inserted paragraph (c)]—

Delete 'prescribed by' and substitute 'set out in'

The bill at clause 17 proposes that regulations produced for this section under the Classification (Publications, Films and Computer Games) Act 1995 be allowed to refer to or incorporate:

...wholly or partially and with or without modification a code, standard or other document prepared or published by a prescribed body either as in force at the time the regulations are made or as in force from time to time.

This would allow, for instance, an industry code of conduct to be prescribed by regulation without it being promulgated in regulations. Amendment to the code or document by the external body would effectively change the law without parliament having any opportunity to disallow the change. This is confirmed by the Attorney-General's second reading speech on 17 October 2012, where he said:

So it will be up to the industry to draft a code, to be aware of the code and to decide whether they choose to adopt it.

That is particularly curious, given that this bill is all about a state-imposed censorship regime. The government wants to legislate to control the supply of items but when it comes to the display of such items the government is happy for the industry to write the law itself. The code would not necessarily even be reproduced in the regulation text; instead it may simply be referred to as an external document or code. Whereas regulations and statutes are publicly accessible, such codes may not be. To accommodate access, the government proposes that such a code or document be accessible and states:

...for public inspection, without charge and during ordinary office hours, at an office or offices specified in the regulations.

The opposition sees three potential problems with this approach. First, public access to the law is diminished in that it is left in the hands of a private sector organisation. I note that the Interactive Games and Entertainment Association is based in Sydney and the Australian National Retailers Association has offices in Canberra and Sydney. South Australians cannot know the law without going interstate during office hours, and that is not accessible law.

It is neither difficult nor onerous for such a code to be reduced in the regulations and yet the government is proposing a hyperlink approach to law whereby law is subject to change at any point without the usual period of notice, without the usual process of consultation and without the usual oversight and sign-off by this parliament. This brings me to the second point: the model proposed by the government would potentially allow a parliamentary body to write the regulatory law.

If a document referred to in the regulations is changed by an industry body the change will be immediate without consultation, without the ability of this parliament to disallow the regulation and, quite likely, without the minister even being aware of the change. We consider this devolution of legislative authority to an unelected external body is inappropriate. It should be resisted, especially when compliance with such codes could be vital to establish defence.

Thirdly, the opposition is concerned that the law may also mean that certain industry bodies are given the capacity to control the law governing retailers beyond the scope of their organisation. The Interactive Games and Entertainment Association and the Australian National Retailers Association are not, we presume, representative of all of the relevant organisations and, for that matter, all the retailers within their sectors.

The Hon. G.E. GAGO: The government rises to indicate its support for this amendment; I think it is actually a series of amendments. The government actually does not consider that it is necessary for a code of conduct that does not set down any required conduct or impose any particular sanctions to be set out in regulations. However, as the amendments do not affect the existing display provisions or the proposed R18+ amendments, it is important that we do not delay the passage of this bill any further. Therefore, the government will not be opposing this amendment; we are prepared to support it.

The Hon. S.G. WADE: I would like to challenge the minister's comments that because it does not impose a sanction it is trivial or without import. The fact of the matter is that it is a defence to a sanction, so it effectively does relate to a sanction. We believe that it is worthy of consideration and should be supported.

The CHAIR: The minister just agreed with you and now you are taking issue?

The Hon. S.G. WADE: My point, Mr Chair, to clarify it further, is that this is another example of where the opposition believes that external reference to documents is not good legislative practice. Part of the minister's response was not actually to challenge that it was bad legislative practice, but her response was: it is trivial because it does not impose a sanction. It is directly related to a sanction. It is a defence to a sanction, so we do not believe that it is trivial.

We believe that people are entitled to know the law, and I pay tribute to the work of the Hon. Dennis Hood in putting in this provision initially and for working with the industry associations to make sure that the law is workable. We, as an opposition, support the arrangement, which I understand was worked out by the Hon. Dennis Hood in cooperation with the government. I think it is very good that members of this council in cooperation with the government are finding ways to make the law more workable for those that we relate to, but I am not willing to accept that it is trivial when we are talking about a statutory defence to a sanction that this parliament has imposed.

The CHAIR: But we are in robust agreement. The Hon. Mr Hood.

The Hon. D.G.E. HOOD: Just for the record, I am pleased to hear that the government is supporting the amendments. I was not sure that it would support the amendments, but Family First certainly will.

Amendment carried; clause as amended passed.

Clauses 6 to 9 passed.

Clause 10.

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

Page 5, line 20 [clause 10, inserted section 60A(3)(c)]—Delete 'prescribed by' and substitute 'set out in'

Just by way of a footnote comment, this is the second bill today—the other bill was the Statutes Amendment (Courts Efficiency Reforms) Bill—

The CHAIR: Let us stick to this one.

The Hon. S.G. WADE: The point being that this is another amendment to try to resist external reference to legislation. That is a recurring theme in our amendments to bills. In the courts efficiency bill we were reiterating our commitment to retrospectivity. If the government, in its instructions to parliamentary counsel, were to avoid offending good legislative practice, it is less likely to have work to do in this parliament. I seek its support for this amendment.

The Hon. G.E. GAGO: The government rises to support this amendment and, if it is helpful, to indicate that it will be supporting the rest of the Hon. Mr Wade's amendments.

Amendment carried; clause as amended passed.

Clauses 11 to 17 passed.

Clause 18.

The Hon. S.G. WADE: I oppose this clause.

Clause negatived.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (17:27): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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