Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES)
AMENDMENT (ASSESSMENTS AND ADVERTISING) BILL 2008
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Home Affairs,
the Honourable Bob Debus MP)
CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES)
AMENDMENT (ASSESSMENTS AND ADVERTISING) BILL 2008
OUTLINE
The purpose of this Bill is to amend the Classification (Publications, Films and
Computer Games) Act 1995 (Classification Act) to:
· replace the prohibition on advertising unclassified films and computer games
with a new scheme that will allow advertising, subject to conditions to be set
out in a new Commonwealth instrument (Schedule 1 refers); and
· amend the classification procedures for films that are compilations of
episodes of a television series so that an application for classification of such
a film may be accompanied by a report that complies with conditions set out
in a new Commonwealth instrument (Schedule 2 refers).
Schedule 1 of this Bill is part of a package of reforms involving amendments to State
and Territory legislation and to legislative instruments under the Classification Act.
The proposal was developed in response to industry concerns that the current
advertising arrangements were cumbersome and outdated. The increasing risk of
piracy means products are often available for classification only very close to their
release date. The current prohibition, with limited exceptions only for public
exhibition films, places unnecessary regulatory limitations on marketing of
classifiable products. This Bill enables a legislative instrument to set conditions on
advertising unclassified films and computer games and establish an industry based
self-assessment scheme whereby the likely classification of an unclassified film or
computer game is assessed by an authorised industry assessor for the purpose of
advertising that film or game together with classified films or games before it is
classified. Safeguards in the scheme ensure consumers will not be exposed to
advertisements for higher level content than the film or game they have chosen to
view or play.
Schedule 2 of this Bill enables an industry based self-assessment scheme to be
established for films that are episodes of a television series and series related material
where that series has been broadcast in Australia. The proposal was developed in
response to the increasing number of television series being released on video and
DVD. Current arrangements for classification of such films are both expensive and
time consuming. The scheme will allow an application for classification of a box set
of episodes of a television series to be accompanied by a report from an authorised
assessor. The aim of this proposal is to streamline the classification process, respond
to the changing technological environment for entertainment media and reduce the
cost to industry. Quality assurance processes and safeguards are included in the
scheme to ensure the on-going integrity of the classification process.
FINANCIAL IMPACT STATEMENT
This Bill will not result in any change to the net asset position for the Commonwealth.
It is not expected that there will be any significant financial impact of the industry
assessor advertising scheme. The television series assessment scheme is intended to
result in lower costs to industry.
NOTES ON NEW SECTIONS
New section 1: Short title
1. New section 1 specifies that the short title will be - Classification (Publications,
Films and Computer Games) Amendment (Assessments and Advertising) Act 2008.
New section 2: Commencement
2. Sections 1 to 3 of this Bill commence on Royal Assent.
3. Schedule 1 of this Bill commences on the earlier of Proclamation or 12 months
after Royal Assent. The 12 month period is necessary to enable complementary State
and Territory legislation to replace existing offences for advertising unclassified films
and computer games to be enacted.
4. Schedule 2 of this Bill commences on the earlier of Proclamation or 6 months
after Royal Assent. This allows training and application processes to be established.
New section 3: Schedule
5. This new section provides that the amendments made by this Bill, when enacted,
are as set out in the Schedules.
Article I. SCHEDULE 1 - Amendments relating to
advertising
(a) Classification (Publications, Film and Computer Games) Act
1995
Items 1 and 2 - Section 5 `Advertisement'
1. These new provisions update the definition of `advertisement' to explicitly
include advertising on the internet and exclude product merchandising including on
clothing. This change will apply to all advertising covered by the Act, (that is
advertising for classified and unclassified films, publications and computer games).
2. The National Classification Scheme is already considered to apply to internet
advertising of classifiable material. These amendments clarify this. As the intention
of the Scheme is to ensure consumers have adequate information to make informed
entertainment choices for themselves and their families, the exclusion of product
merchandising such as caps, toys, drink bottles and similar products carrying logos or
characters derived from films or computer games recognises that merchandising is not
a primary source of classification information for consumers.
3. Section 5 `Decision'
3. This item amends the definition of `decision' so that a decision of the
Classification Board on the likely classification of an unclassified film or computer
game is reviewable by the Classification Review Board. The provision ensures the
new assessment decisions by the Classification Board will be subject to merits review
by the Classification Review Board.
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4. Paragraph 5B(3)(b) `Exempt Film or Computer Game'
4. This paragraph makes a consequential amendment to the definition of an exempt
film or computer game to reflect the change in policy that unclassified films and
computer games can be advertised where it is done in accordance with the conditions
to be set out in a new Instrument. The effect of the amendment is that a film or
computer game is not exempt from classification if it contains an advertisement for an
unclassified film or computer game that has not been assessed, or has been assessed
as likely to be classified M or higher.
5. Subsection 22(1) Commensurate Audience Provisions
5. This item makes a consequential amendment to reflect the change in policy that
unclassified films and computer games can be advertised where it is done in
accordance with the conditions set out in a new Instrument. New paragraphs 22(1)(a)
and (c) reflect the existing provisions, re-ordered.
6. The effect of the new paragraph 22(1)(b) is that a film or computer game must not
be classified is it contains an advertisement for an unclassified film or computer game
unless the film or computer game has been assessed either by an authorised assessor
or by the Classification Board and the assessment is that the unclassified film or
computer game is likely to have the same or lower classification. The purpose of this
amendment is to ensure that when advertising unclassified films and computer games
together with classified films or computer games (for example trailers on DVDs and
trailers or demos on computer games), the classified film or computer game has a
classification that is the same, or higher, classification as the likely classification of
the advertised film or computer game.
6. Part 3 (heading)
7. This item removes the current heading `Approval of Advertisements' as it is
inaccurate and replaces it with `Advertising'.
7. Subsections 29(6) and (7)
8. The amendments to subsections 29(6) and (7) replaces the existing subsections in
order to remove the prohibition on the Classification Board approving an
advertisement for an unclassified film or computer game. The amendments continue
to prohibit the Classification Board from approving advertisements that are - or are
likely to be - classified RC (Refused Classification).
8. Subsection 30(1)(b)
9. This item makes an amendment to the Director's `call in powers' for
advertisements for films. The amendment enables the Director to call in an
advertisement for both a classified and an unclassified film.
9. Division 2 of Part 3 (Advertising of unclassified films and unclassified
computer games)
10. The new Part 3, Division 2 amendments remove the existing advertising
exemption scheme that applies to public exhibition films. Instead the new Division 2
provides for the creation of a new advertising scheme for unclassified films and
computer games. These new provisions do not apply to publications.
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Subdivision A - Scheme relating to advertising
11. New subsection 31(1) enables the Minister to make a legislative instrument that
determines the conditions for advertising unclassified films and computer games. The
new section is broad in scope in order to empower the Minister to create a scheme
that sets conditions on advertising, provides for adequate safeguards and, provides for
industry based assessments on the likely classification of unclassified films and
games. Including the scheme in a legislative instrument ensures that the scheme is
able to respond quickly and flexibly to developments in marketing approaches should
this be required.
12. New subsection 31(2) enables the instrument to place conditions on advertising
unclassified films and computer games, including conditions about:
a. The display of a message about classification. (A new message
advising consumers to `Check the Classification' is proposed to be
included in the instrument.)
b. Limitations on advertising unclassified films or computer games
together with classified material, so that the instrument may contain a
`commensurate audience rule'.
c. Time periods for industry to include classification information on
advertisements after classification.
d. Ensuring adequate safeguards against advertising of unclassified
material by persons who have not complied with the scheme.
1. To ensure that appropriate safeguards are in place to prevent audiences from being
exposed to advertisements for material likely to be classified at a higher level than the
film or computer game they have chosen to view or play, and in particular that higher
level content is not advertised to children in this context, new subsection 31(3)
enables the instrument to establish a scheme for assessing the likely classification of
unclassified films and computer games.
2. New paragraphs 31(3)(a) and (b) provide that a person appropriately trained and
authorised by the Director is able to make an assessment of the likely classification of
a film or computer game for the purpose of advertising that film or computer game
before it has been classified.
3. New paragraph 31(3)(c) sets out the matters that must be considered when making
an assessment of the likely classification.
4. New paragraph 31(3)(d) enables the Director to impose barring notices on
assessors and applicants for unacceptable use of the assessment scheme.
5. New paragraph 31(3)(e) sets out that the consequences for an Assessor of
receiving a barring notice can include losing the authority to provide assessments.
6. New paragraph 31(3)(f) empowers the instrument to provide a right of review to
the Administrative Appeals Tribunal.
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7. New paragraphs 31(3)(g) and (h) ensure power exists for the Classification Board
and the Director to exercise ancillary administrative functions for the proper operation
of the scheme.
8. New subsection 31(4) is an important safeguard enabling the Instrument to ensure
that the scheme does not permit inappropriate advertising of unclassified films and
computer games.
9. New subsection 31(5) ensures that the instrument determining the scheme will be
made after consultation with Censorship Ministers, protecting the co-operative nature
of the National Classification Scheme.
10. New section 31(6) makes it clear that the advertising scheme does not apply to
material that is likely to be classified X 18+ or RC. Advertising this material will
continue to be prohibited.
Subdivision B--Assessments of likely classifications of unclassified films and
unclassified computer games
11. New subsection 32(1) enables a person to apply to the Board for an assessment of
the likely classification of a film or computer game for the purposes of advertising
that film or computer game before classification. It is envisaged that applicants
would use this provision for an assessment in difficult cases, or where they want the
assurance of the Board's consideration, or where it is not feasible or cost effective to
obtain an assessment from an authorised assessor.
12. New subsection 32(2) sets out the formal requirements that must be met in
making an application for an assessment of the likely classification of a film or
computer game.
13. New section 33 sets out the circumstances in which the Board may assess the
likely classification of a film or computer game and the circumstances in which the
Board may decline to assess the likely classification.
14. New subsection 33(7) clarifies that the assessment is not a legislative instrument
within the meaning of section 5 of the Legislative Instruments Act 2003 because the
assessment is an administrative decision.
15. New section 34 enables an assessment to be revoked in certain circumstances and
sets out when that revocation will take effect. These circumstances include where the
Board was not made aware of material in the film or computer game that would have
changed its assessment to a higher likely classification if it had been aware of the
material.
16. New section 35 provides that an applicant is entitled to a written notice of a
decision of the Classification Board under new sections 33 and 34 within 30 calendar
days from the day on which the decision was made. This is consistent with the other
requirements in the Act for the Board to provide notice of its decisions.
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10. Paragraph 42(1)(b)
17. The amendment to this paragraph includes applicants for an assessment of likely
classification for advertising purposes as people who may seek merits review of a
decision by the Classification Board.
11. Subsection 87A(1)(b)
18. This new paragraph applies the statutory timeframe (within which the
Classification Board must make a decision on an application for classification or
approval of an advertisement) to applications for an assessment of the likely
classification of a film or computer game under the new section 33.
12. Paragraph 97(c)
19. The amendment to this paragraph removes the transitional arrangements for
applications for a certificate of exemption under State and Territory laws under the
previous provisions.
13. Transitional regulations
20. This item empowers the Governor-General to make regulations dealing with the
transitional arrangements that will apply to films that have a certificate of exemption
for advertising purposes at the time these amendments come into force.
Article II. SCHEDULE 2 - Amendments relating to
films of television series
(a) Classification (Publications, Film and Computer Games) Act
1995
1. Schedule 2 amendments enable an authorised assessment scheme to be established
in a legislative instrument whereby a person appropriately trained and authorised by
the Director is able to make recommendations to the Board about the classification
and consumer advice for a television series film. The Board will retain responsibility
for classifying the film. If an applicant wishes, the Board's consideration may be
assisted by the assessment of an authorised assessor.
1. Section 5 `Authorised television series assessor'
2. This item inserts a new definition that is relevant to the television series
assessment scheme. It makes it clear that an `authorised television series assessor' is
a person authorised under proposed section 14B(3) to prepare assessments of
television series films.
2. Section 5 `Television series film'
3. This item inserts a new definition that is relevant to the television series
assessment scheme. It makes it clear that a `television series film' is one or more
episodes of a television series and can include series-related material. Series-related
material is intended to include material that is related to the television series such as
bloopers, interviews with and commentary from cast and crew, deleted scenes, behind
the scenes information on the series, stunts and special effects, wardrobe and music
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information, trailers and teasers, character profiles, featurettes and alternate endings.
However, it does not include self-contained material such as feature films or computer
games, regardless of whether they relate to the series.
3. Before section 15 - Insert section 14B
4. A key characteristic of a television series is that it is targeted to a particular
consumer group and therefore generally has consistency in the impact of its content.
The effect of the definition of `film' under the Classification Act is that when a
collection of episodes of a television series is put onto DVD it is considered in the
same way as a feature film and viewed by the Classification Board to determine its
classification. The fee for classification is calculated by reference to the total running
time of the film. A compilation of episodes of a television series may include many
hours of running time. This means classification of television series is comparatively
expensive for Australian industry. There is an increasing number of television series
being released on Video and DVD. The current arrangements for classification of
such films are both expensive and time consuming.
5. The new scheme addresses this issue by allowing applications for classification of
a television series film to be accompanied by an assessment.
6. New subsection 14B(1) provides that where an unclassified television series film
includes an episode that has been broadcast in Australia and the applicant believes the
television series film is likely to be classified R 18+ or lower, the applicant may
submit an assessment by an authorised television series assessor with the application
for classification of the television series film.
7. New subsection 14B(2) sets out the formal requirements of an assessment.
8. New subsection 14B(3) enables the Minister to make a legislative instrument that
determines a scheme for the assessment of television series films.
9. New subsection 14B(4) sets out the scope of the instrument. The new section is
broad in scope in order to empower the Minister to create a scheme similar to that in
place for additional content. Including the details of the scheme in a legislative
instrument allows flexibility to adjust it to respond to technological advances.
Subsection 14B(4) ensures the instrument can provide for:
a. The requirements for making an assessment
b. The matters to be considered in an assessment
c. The requirements for authorisation of assessors, such as the
circumstances in which such authorisation may be revoked
d. The sanctions that may be applied to assessors or applicants who abuse
the scheme including issuing `barring notices'
e. The effects of a `barring notice'
f. The right of external appeal to the Administrative Appeals Tribunal for
decisions made under the scheme
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g. The Classification Board and the Director to exercise ancillary
administrative functions for the proper operation of the scheme
h. Administrative matters in relation to the scheme, and
i. The circumstances that may lead to an assessment being determined to
be `misleading, incorrect or grossly inadequate' under new
section 21AB.
1. New subsection 14B(5) ensures that the instrument determining the scheme will
be made after consultation with Censorship Ministers, protecting the co-operative
nature of the National Classification Scheme.
2. The new subsection 14B(6) clarifies that references to episodes having been
broadcast in Australia, in new subsection 14B(1), are to types of broadcasting services
as defined in the Broadcasting Services Act 1992.
4. After section 21AA - Insert section 21AB
3. New section 21AB provides that the Board must revoke the classification of a
television series film in specified circumstances which demonstrate that the
assessment on which the classification was based was highly unreliable. This is an
important safeguard to ensure the integrity of the television series assessment scheme
and to maintain consumer confidence in the National Classification Scheme.
4. It covers situations where the Board has made a classification on the basis of an
assessment that did not contain information required by the instrument or, if it did
contain such information, the assessment was highly unreliable because it was
misleading, incorrect or grossly inadequate. The Board is required to revoke the
classification if it would have made a different classification decision had it been
aware of those matters.
5. An everyday interpretation should be made to determine whether an assessment
could be regarded as misleading, incorrect or grossly inadequate. For flexibility, the
instrument may prescribe circumstances in which such an assessment is taken to be
misleading, incorrect or grossly inadequate.
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