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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2019-11-26 Daily Xml
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Statutes Amendment and Repeal (Classification of Publications, Films and Computer Games)

Second Reading

The Hon. R.I. LUCAS (Treasurer) (16:19): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and the detailed explanation of clauses inserted in Hansard without my reading them.

Leave granted.

Mr President, the Bill I introduce today amends the Classification (Publications, Films and Computer Games) Act 1995 to abolish the South Australian Classification council and repeals the Classification of Theatrical Performances Act 1978.

This Bill is one of the many measures that the Marshall Liberal government is implementing to ensure that our laws stay current and relevant to contemporary South Australian needs.

As some members may know, the classification of publications, films and computer games is dealt with under a national scheme, which is implemented by the commonwealth Classification (Publications, Films and Computer Games) Act 1995 ('the commonwealth Act').

The commonwealth Act establishes the Classification Board, an independent statutory body, which makes classification decisions for films, computer games and certain publications in accordance with the criteria set out in the National Classification Code and Classification Guidelines. The commonwealth Act also establishes the Classification Review Board, which can review certain decisions of the Classification Board and make a new classification decision where appropriate.

Each State and Territory has enforcement legislation that complements the commonwealth Act and which sets out how material may be sold, hired, exhibited, advertised and demonstrated. In South Australia, the classification of publications, films and computer games is governed by the Classification (Publications, Films and Computer Games) Act 1995 ('the SA Classification Act').

Part 2 of the SA Classification Act establishes the South Australian classification council ('the council'). The council is a separate statutory body that may examine and classify a publication, film or computer game and determine relevant consumer advice. This may be done on the initiative of the council or the direction of the minister.

Mr President, South Australia and the Northern Territory are currently the only jurisdictions to maintain a separate body for classification. All other jurisdictions rely upon the commonwealth classification board for the handling of complaints and classification decisions. The classification board offers the same complaint resolution service as the council.

Since it was first established in 1995, the council has classified only 29 items (24 publications and five films) under the SA Classification Act. A further film was refused classification by the former Attorney-General, the Hon. John Rau MP, in 2011. The council has not made any classification decisions in relation to a publication, film or computer since 2011 and the council has not met since 2014.

In view of this information, the Attorney-General undertook broad consultation with relevant government, industry and advocacy bodies to seek their views on whether the council should be abolished.

Mr President, I am pleased to advise that there was overwhelming support for the Bill and the repeal of the council. All submissions received on the Bill either indicated their support for the reforms or provided a no comment response.

In particular, stakeholders noted the Bill will help to reduce regulatory confusion amongst industry and consumers and bring greater consistency and uniformity to the content classification regime in Australia. The commonwealth minister for Communications, Cyber Safety and the Arts, the Hon. Paul Fletcher MP, has also expressed his support for the Bill and has not identified any issues of concern with the proposed amendments at a Federal level.

In light of the relative inactivity of the council in recent years, and the extensive overlap of functions between the work of the council and the Classification Board under the national scheme, it is therefore the government's view that it is appropriate that the council should be abolished.

As a result of these amendments, it is intended that all complaints and matters relating to the classification of publications, films and computer games will be determined in accordance with the national scheme under the commonwealth Act. This will ensure that all material classified for South Australia is assessed by the commonwealth Classification Board in the same way that material in other States and Territories is currently classified and that any consumer advice issued will be consistent across participating jurisdictions.

Mr President, in addition to abolishing the council, the bill also repeals the Classification of Theatrical Performances Act 1978 ('the Theatrical Performances Act').

Under the Theatrical Performances Act, the council has powers to review and classify theatrical performances and to impose conditions restricting the publication of advertisements in certain circumstances.

Since the Theatrical Performances Act was first enacted in 1978, the council has only ever classified two theatrical performances and, notably, has not reviewed any theatrical performances since 1997. No other Australian jurisdiction currently regulates the classification of theatrical performances.

While the Theatrical Performances Act may have once provided a legitimate benefit to South Australians, it is clear that the Act has now long outlived its original purpose and is out of step with contemporary South Australian attitudes. Accordingly, it is the government's view that it is appropriate that the Theatrical Performances Act be repealed.

Mr President, it is the government's view that these reforms will create a simpler and more efficient classification process for both consumers and industry alike by avoiding unnecessary duplication, delay, and expense.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

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

4—Amendment of long title

This clause amends the long title to reflect the content of the Classification (Publications, Films and Computer Games) Act 1995 as amended by this measure.

5—Substitution of section 3

This clause repeals the provision setting out the objects of the Act and substitutes new objects.

3—Objects

Proposed section 3 provides that the objects of the Act are—

(a) to give effect to the scheme for the classification of publications, films and computer games set out in the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth by—

(i) making provision for the enforcement of classification decisions applying in South Australia; and

(ii) prohibiting the publication of certain publications, films and computer games; and

(b) to provide protection against prosecution under laws relating to obscenity, indecency, offensive materials or blasphemy when classified publications, films or computer games are published in accordance with the Act.

6—Amendment of section 4—Interpretation

This clause amends a number of definitions. The changes are consequential on the repeal of Parts 2 and 3 of the Act.

7—Repeal of Parts 2 and 3

This clause repeals Parts 2 and 3 of the Act which established the South Australian Classification Council and set up a State publications, films and computer games classification scheme administered by the Council and the Minister.

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

The amendment made by this clause is consequential on the repeal of Parts 2 and 3 of the Act.

9—Amendment of section 37—Sale of films

The amendment made by this clause is consequential on the repeal of Parts 2 and 3 of the Act.

10—Amendment of section 40—Films to bear determined markings and consumer advice

The amendments made by this clause are consequential on the repeal of Parts 2 and 3 of the Act.

11—Amendment of section 47—Category 1 restricted publications

The amendments made by this clause are consequential on the repeal of Parts 2 and 3 of the Act.

12—Amendment of section 48—Category 2 restricted publications

The amendments made by this clause are consequential on the repeal of Parts 2 and 3 of the Act.

13—Amendment of section 48A—Sale or delivery of publications contrary to conditions

The amendment made by this clause is consequential on the repeal of Parts 2 and 3 of the Act.

14—Amendment of section 50—Misleading or deceptive markings

The amendments made by this clause are consequential on the repeal of Parts 2 and 3 of the Act.

15—Amendment of section 60—Computer games to bear determined markings and consumer advice

The amendments made by this clause are consequential on the repeal of Parts 2 and 3 of the Act.

16—Amendment of section 66—Certain advertisements not to be published

The amendment made by this clause is consequential on the repeal of Parts 2 and 3 of the Act.

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

The amendments made by this clause are consequential on the repeal of Parts 2 and 3 of the Act.

18—Amendment of section 73—Misleading or deceptive advertisements

The amendments made by this clause are consequential on the repeal of Parts 2 and 3 of the Act.

19—Amendment of section 83—Evidence

The amendment made by this clause is consequential on the repeal of Parts 2 and 3 of the Act.

20—Repeal of section 90

The repeal of section 90 is consequential on the repeal of Parts 2 and 3 of the Act.

Part 3—Amendment of Summary Offences Act 1953

21—Amendment of section 33—Indecent or offensive material

The amendment to section 33 is consequential on the repeal of Parts 2 and 3 of the Classification (Publications, Films and Computer Games) Act 1995.

Part 4—Repeal of Classification of Theatrical Performances Act 1978

22—Repeal of Act

This clause repeals the Classification of Theatrical Performances Act 1978.

Part 5—Transitional provisions

23—Transitional provisions

This clause ensures that members of the South Australian Classification Council will cease to hold office when the repeal of Part 2 of the Classification (Publications, Films and Computer Games) Act 1995 comes into operation. It also ensures that part-heard processes and proceedings before the Council or the Minister before that repeal takes effect can continue to be dealt with and completed by the Minister after the repeal of Part 2 takes effect.

The Hon. I.K. HUNTER (16:19): I rise today to speak briefly on the Statutes Amendment and Repeal (Classification of Publications, Films and Computer Games) Bill 2019. I am considering moving an amendment to the title of the bill to call it the 'Michael Atkinson Memorial Repeal Bill', but I will take that on advice. I indicate that I am the opposition's lead speaker for this bill, and indicate Labor's support.

The bill seeks to do two things. Firstly, it seeks to dismantle the state-based classification system in favour of the commonwealth system, which includes the disbanding of the South Australian Classification Council and removing the decision-making powers of the Attorney-General in relation to classification. This bill also repeals the legislation governing the classification of theatre performances.

Since coming into law the Classification of Theatrical Performances Act 1978 has led, I am advised, to only two theatre productions being classified in the mid-1990s. For 41 years it has been clearly shown that we do not need a classification system for theatrical performances, and we are currently the only jurisdiction in Australia to have one.

This bill marks the end of the process of moving away from state-based classification of films, publications and video games in South Australia. The process of transitioning responsibility for classification to the commonwealth has been undertaken, I am advised, by both Labor and Liberal governments in increments.

For decades, the South Australian Classification Council or the Attorney-General had the power to classify films, publications and computer games to the exclusion of the commonwealth system. This meant that the classification of films, publications and computer games could be classified by the commonwealth and then classified differently in South Australia. From the commencement of the act in 1995 until 2011 there had been only 29 items classified by the council, one by the Attorney-General, and none since 2011. In fact, the council has not even met since 2014.

In transitioning to the commonwealth classification system the former Labor government worked tirelessly to ensure that overtly violent, sexual or graphic content was not going to end up on our TV or cinema screens. Currently, we are the only state or territory, apart from the Northern Territory, to have any state-based classification in relation to films, publications and, in particular, video games.

The time it has taken to move fully from a state-based classification to a commonwealth-based classification scheme is a reflection of South Australia's willingness to embrace and participate in good national policies, whilst maintaining backup insurance to ensure that nothing could slip through the gaps. However, as we have seen, it seems that is no longer needed.

With this bill we recognise decades of trust built by the commonwealth system to the point where we can now remove the insurance of a state-based system and rely entirely on the commonwealth classification. I hope we never feel sorry for it. As I said, the opposition will support the legislation.

The Hon. T.A. FRANKS (16:22): I rise also to support this bill on behalf of the Greens, and to reflect upon our unique history with regard to the classification of films, games and other art forms. The previous member reflected that perhaps he might consider an amendment to the title of the bill: the Greens are also considering an amendment to the title of the bill, however we might call it the 'Gamers 4 Croydon Memorial Act'.

Certainly a peculiarly South Australian phenomenon, the resistance to an R18+ rating for games in this country led South Australia to be known by gamers, not just in South Australia and not just in Australia but indeed on the international scene, as a somewhat strange place where we would prefer children and minors to be exposed to violence and other more adult content of games due to the refusal of the then attorney-general at the federal level to accept an R18+ classification rating for those games.

I am pleased to say it was not something that all attorneys-general supported. Gamers 4 Croydon did not exist when this particular ban first existed under our peculiar state heritage. However, when a local constituent wrote via email to the then attorney-general, he challenged that constituent, who was anonymous in that email, to not only provide a street address to prove the reality of his existence but also to start a political party to test the will of the people of Croydon in terms of a classification rating for R18+ games. I disclose that this 'concerned citizen' is known to me and is indeed a real and living person who is still in South Australia today.

I am quite pleased to say that that concerned citizen and many other concerned citizens did indeed do that. They started their own political party. It had some 400 to 500 members very quickly. Within a few months it had a national profile and an international profile. It ran a candidate, Kat Nicholson, in Croydon. Previously, the former member for Croydon had enjoyed quite a comfortable position in the very safe seat of Croydon. Indeed, in the 2006 election he was elected with 76 per cent of the two-party preferred vote, with a 6.9 per cent swing towards him.

However, in the 2010 election where Gamers 4 Croydon ran and there was a very high-profile campaign—and they did not just run in Croydon, they ran in the upper house as well, and I reflect that I was the beneficiary of the preferences of Gamers 4 Croydon to put me in this place—there was a 12 per cent two-party swing against him. Strangely enough, it was not reflective of the general swing against the then Labor Party of only 8.4 per cent, so something was in the water in Croydon that Saturday in March.

I note that much of the reflection on the bill in the other place has focused on the previous attorney-general and has focused on our peculiar heritage as a state to stand alone with regard to the classification and the censorship principles that were not in accordance with the then other attorneys-general, international standards or the voters of the Croydon preferences. Indeed, Kat Nicholson did reasonably well with, I think, a 3.7 per cent polling that day, which is not a bad effort for somebody on the single issue of having an R18+ gaming classification rating in this state.

The current Attorney-General in the other place reflected on a range of issues where this particular act has been applied. They are very few and far between and they seem to have been an unnecessary burden, I believe, on our public purse and, indeed, an unnecessary adornment when we have a quite workable federal scheme. It is to our shame that we stood in stark contrast to the other states and territories of this country for so long. It is to our shame that gaming and gamers themselves were portrayed as more dangerous than bikies by the former attorney-general, Mr Atkinson, the then member for Croydon.

How extraordinary to classify gamers, who are in effect geeks, as being more dangerous than bikies. I think that reflects far more on the former member for Croydon than it does on the gamers. But all credit to the gamers: they did set up that political party and we did see a change in the classification of games, not just in this state but in this country, as a result of that then attorney-general no longer holding out at those federal meetings. I look forward to the swift passage of this bill abolishing some of the last vestiges of that censorship.

I also note for the record that in the other place there was much conversation that one of the Gamers 4 Croydon was the one called out by the then member for Croydon, Mr Atkinson, as not being a real person. It was actually an entirely different issue where Mick Atkinson, the then member for Croydon, called somebody out as not being real. That person then appeared in the paper the next day with his driver's licence to prove exactly who he was and he, indeed, did also live in Croydon. I suspect he may well have voted for them, but he was not actually one of the activists of the Gamers 4 Croydon. With those few words, I look forward to the swift passage of this legislation.

The Hon. R.I. LUCAS (Treasurer) (16:30): I did quip that the Hon. Mr Hunter did start something with that introductory remark. I am hoping we are not going to finish it. Let's just see the sensible passage of the bill without any further amendment, as amusing as it might be. With that, I thank the honourable members for their indication of support for the second reading.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (16:32): I move:

That this bill now be read a third time.

Bill read a third time and passed.

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