Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2004-2005-2006-2007
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES)
AMENDMENT (ADVERTISING AND OTHER MATTERS) BILL 2007
EXPLANATORY MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Philip Ruddock MP)
CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES)
AMENDMENT (ADVERTISING AND OTHER MATTERS) BILL 2007
OUTLINE
This Bill enables an advertising assessment scheme and a television series assessment
scheme to be established under the Classification (Publications, Films and Computer
Games) Act 1995 (Classification Act). Each scheme will be contained in a
Commonwealth legislative instrument.
Schedule 1 of this Bill is part of a package of reforms which, together with
amendments to State and Territory legislation and to legislative instruments under the
Classification Act, will remove the prohibition on advertising unclassified films and
computer games. 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 establishes 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 computer game before it is classified. Safeguards are included
in the scheme to ensure consumers continue to be protected from inappropriate
material.
Schedule 2 of this Bill amends the classification requirements for films that are
compilations of episodes of a television series that has been broadcast in Australia.
This Bill establishes an industry based self-assessment scheme whereby an
application for classification of a film that is episodes of a television series may be
accompanied by a report from an authorised assessor. There is an 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 aim of this
Bill is to streamline the classification process and to respond to the changing
technological environment for entertainment media. The purpose of the proposal is to
reduce the cost to industry and the processing time for the Classification Board.
Quality assurance processes are included in the scheme to ensure the on-going
integrity of the classification process.
FINANCIAL IMPACT STATEMENT
The 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 cost reductions to industry.
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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 (Advertising and Other
Matters) Act 2007.
New section 2: Commencement
2. Sections 1 to 3 of the Bill will commence on Royal Assent.
3. Schedule 1 of the Bill will commence 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 be enacted.
4. Schedule 2 of the Bill will commence 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 the Bill, when
enacted, are as set out in the Schedules.
SCHEDULE 1 - Amendments relating to advertising
Classification (Publications, Film and Computer Games) Act 1995
Items 1 and 2 - Section 5 `Advertisement'
6. 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).
7. 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'
8. 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'
9. 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
10. 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.
11. 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)
12. This item removes the current heading `Approval of Advertisements' as it is
inaccurate and replaces it with `Advertising'.
7. Subsections 29(6) and (7)
13. 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 conditions to be set out in a new Instrument. The new subsection
prevents the Classification Board from approving an advertisement for a film or
computer game that is - or is likely to be - classified RC (Refused Classification).
8. Subsection 30(1)(b)
14. This item makes a makes a consequential amendment to reflect the change in
policy that unclassified films and computer games can be advertised and to achieve
consistency in the application of the Classification Act to films and computer games.
9. Division 2 of Part 3 (Advertising of unclassified films and unclassified
computer games)
15. The new Part 3, Division 2 amendments remove the existing advertising
exemption scheme that applies to public exhibition films. Instead the new Part
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
16. New subsection 31(1) enables the Attorney-General 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
Attorney -General to create a scheme similar to that in place for additional content.
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.
17. 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 continued advertising of
unclassified material by persons who have not complied with the
scheme.
18. 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.
19. New paragraph 31(3)(c) sets out the matters that must be considered when
making an assessment of the likely classification.
20. New paragraph 31(3)(d) enables the Director to impose barring notices on
assessors and applicants for unacceptable use of the assessment scheme.
21. 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.
22. New paragraph 31(3)(f) empowers the instrument to provide a right of review
to the Administrative Appeals Tribunal.
23. 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.
24. 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.
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25. 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.
26. New section 31(6) makes it clear that the advertising scheme does not apply to
material that is likely to be classified X18+ or RC. Advertising this material will
continue to be prohibited.
Subdivision B--Assessments of likely classifications of unclassified films and
unclassified computer games
27. 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.
28. 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.
29. 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.
30. New subsection 33(6) clarifies the instrument is not a legislative instrument
within the meaning of section 5 of the Legislative Instruments Act 2003.
31. New section 34 enables an assessment to be revoked in certain circumstances
and sets out when that revocation will take effect.
32. 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 ordinary
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.
10. Paragraph 42(1)(b)
33. 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)
34. This new paragraph applies the 20 business day timeframe (within which the
Classification Board must a decision on an application for classification or approval
of an advertisement) to include applications for an assessment of the likely
classification of a film or computer game under the new section 33.
12. Paragraph 97(c)
35. This section sets out superseded transitional arrangements for applications for
a certificate of exemption under State and Territory laws. It therefore repealed
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Item 13 of the Schedule which deals with the transitional arrangements for certificates
of exemption under the current provisions.
13. Transitional regulations
36. 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.
SCHEDULE 2 - Amendments relating to films of
television series
Classification (Publications, Film and Computer Games) Act 1995
37. 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 of films that comprise episodes of a television series that have been
broadcast in Australia. 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'
38. 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 section 14B(3) to prepare assessments of unclassified films
that comprise episodes of a television series that have been broadcast in Australia. .
2. Before section 15 - Insert section 14B
39. 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.
40. To address this issue a new section is inserted into the Classification Act.
41. New subsection 14B(1) enables a person to submit an authorised assessment
together with an application for classification of a film that comprises episodes of a
television series that has been broadcast in Australia.
42. New subsection 14B(2) sets out the formal requirements of an assessment.
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43. New subsection 14B(3) enables the Attorney-General to make a legislative
instrument that determines a scheme for the classification of films that are episodes of
a television series.
44. New subsection 14B(4) sets out the scope of the Instrument. The new section
is broad in scope in order to empower the Attorney -General 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 continued authorisation and the circumstances in
which such authorisation may be revoked
d. The sanctions that may be applied to applicants who abuse the scheme
including issuing `barring notices'
e. The right of external appeal to the Administrative Appeals Tribunal for
decisions made under the Scheme
f. Proper function and power for the Classification Board and the
Director to exercise ancillary administrative functions for the proper
operation of the scheme, and
g. The circumstances that may lead to an assessment being determined to
be `misleading, incorrect or grossly inadequate' under new
section 21AB.
45. 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.
46. The new subsection 14B(6) clarifies that references to episodes having been
broadcast in Australia, in new subsection 14B(1). Are to services as defined in the
Broadcasting Services Act 1992.
3. Before section 22 - Insert section 21AB
47. New section 21AB provides that the Board must revoke the classification of a
television series compilation 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.
48. It covers situations where the Board has made a classification on the basis of
an assessment that did not contain information about classifiable elements (as defined)
or, if it did contain such information, the assessment of those elements was highly
unreliable because it was misleading, incorrect or grossly inadequate. The Board is
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required to revoke the classification if it would have made a different classification
decision had it been aware of those matters.
49. An everyday interpretation should be made to determine whether an
assessment of the classifiable elements 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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