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CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) (ENFORCEMENT) AMENDMENT BILL 2009

  Classification (Publications, Films and
    Computer Games) (Enforcement)
           Amendment Bill 2009

                         Introduction Print

               EXPLANATORY MEMORANDUM


                                  General
The objective of the Classification (Publications, Films and Computer
Games) (Enforcement) Act 1995 (the Victorian Act) is to give effect to
the Commonwealth, State and Territory 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.
The Victorian Act provides for the enforcement of classification decisions
made under the Commonwealth Act by prohibiting the publishing or sale of
certain publications, films and computer games. It also prohibits certain
material on on-line information services.
The Classification (Publications, Films and Computer Games)
(Enforcement) Amendment Bill 2009 (the Bill) amends the Victorian Act
to implement amendments consequential on the Classification (Publications,
Films and Computer Games) Amendment (Assessments and Advertising) Act
2008 of the Commonwealth (the Commonwealth Amendment Act), and for
other purposes.
The Commonwealth Amendment Act amends the Commonwealth
Classification (Publications, Films and Computer Games) Act 1995, amongst
other matters, to replace the prohibition on advertising unclassified films and
unclassified computer games with a new scheme that will allow advertising,
subject to conditions to be set out in a Commonwealth legislative instrument.
The Bill implements the necessary consequential amendments to the
Victorian Act to ensure that it is consistent with the Commonwealth Act,
reflective of the cooperative nature of the National Classification Scheme.




561266                                 1       BILL LA INTRODUCTION 5/5/2009

 


 

Clause Notes PART 1--PRELIMINARY Clause 1 sets out the purpose of the Bill which is primarily to amend the Victorian Act to make consequential amendments required as a result of the Commonwealth Amendment Act. Clause 2 provides for the commencement of the Bill. The Bill, other than Part 2, will come into operation on the day after the day on which the Bill receives the Royal Assent. Part 2 will come into operation on a day to be proclaimed. However, Part 2 will come into operation on 1 July 2009 if not proclaimed before that date. The commencement provisions have been drafted to ensure that the commencement ties in with the commencement of the relevant provisions of the Commonwealth Amendment Act. Clause 3 provides that in the Bill the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 is called the Principal Act. PART 2--AMENDMENTS CONSEQUENTIAL ON THE CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT (ASSESSMENTS AND ADVERTISING) ACT 2008 OF THE COMMONWEALTH Clause 4 inserts a definition of Advertising Scheme in section 3 of the Principal Act to mean the scheme for the advertising of unclassified films and unclassified computer games that is determined from time to time under section 31(1) of the Commonwealth Act. Section 31(1) of the Commonwealth Act, inserted by the Commonwealth Amendment Act, is broad in scope in order to empower the Commonwealth Minister to create a scheme by legislative instrument that sets conditions on advertising, provides for adequate safeguards in relation to the operation of the new advertising scheme, and provides for industry-based assessments on the likely classification of an unclassified film or an unclassified computer game. Section 31(5), inserted by the Commonwealth Amendment Act, provides that the Commonwealth Minister must consult with State and Territory Censorship Ministers before making a determination under section 31(1). Clause 4 also inserts a definition of assessed, in relation to an unclassified film or an unclassified computer game, to mean assessed as to the likely classification to be given, such assessment to be made by an authorised assessor in accordance 2

 


 

with the Advertising Scheme or by the Classification Board under section 33 of the Commonwealth Act. Clause 5 inserts a new heading to section 46 of the Principal Act to make it clear that the prohibitions set out in section 46 apply only in relation to the approval process for advertisements for classified films, publications or computer games that may be undertaken by the Classification Board in accordance with sections 29 and 30 of the Commonwealth Act. As section 46 of the Principal Act was enacted prior to 1 January 2001, the existing section heading cannot be amended and a new heading must be inserted (see section 36(2A) of the Interpretation of Legislation Act 1984). Clause 6 amends the offence in section 47(1)(a) of the Principal Act to allow for the publishing of an advertisement for an unclassified film or an unclassified computer game in accordance with the conditions on which unclassified films and unclassified computer games may be advertised, as set out in the Advertising Scheme. The Commonwealth Amendment Act repeals the existing advertising exemption scheme that allows for a limited number of exemptions to be granted by the Classification Board to permit advertising prior to classification only in relation to public exhibition films. Clause 6 removes the current reference in section 47(1)(a) of the Principal Act to certificates of exemption granted under section 33 of the Commonwealth Act. Clause 6 also omits section 47(1)(e) to remove the current prohibition on publishing an advertisement for an unclassified computer game, to reflect the new Advertising Scheme. Clause 7 substitutes section 48 of the Principal Act with a new provision to allow for advertising of an unclassified film or an unclassified computer game that has been assessed as being likely to be classified. Clause 7 provides that an advertisement for a film or a computer game cannot be screened in a public place during a program for the exhibition of another film (the feature film) unless the feature film has a classification equal to or higher than the classification or assessment of the likely classification given to the advertised film or computer game. Clause 7 does not apply in relation to material classified, or assessed as likely to be classified, Refused Classification (RC) or X18+. Clause 7 reflects the "commensurate audience rule". The main objective of clause 7 and the commensurate audience rule in general is to protect audiences from being exposed to advertisements for material classified, or assessed as likely to be classified, at a higher level than the film they have chosen to view, and in 3

 


 

particular that higher level content is not advertised to children in this context. The amendments are required to ensure consistency with the Commonwealth Act. As required by section 47(1)(a) of the Principal Act, advertising for an unclassified film or an unclassified computer game must comply with the conditions in the Advertising Scheme. Clause 8 amends section 49 of the Principal Act to provide that RC material is captured by the offences in section 49(1). Clause 8 also allows for the offences in section 49(1) to capture advertisements for unclassified films or unclassified computer games that have been assessed in accordance with the Advertising Scheme or under section 33 of the Commonwealth Act. Clause 8 substitutes section 49(2) of the Principal Act with a new provision to narrow the scope of the offences under section 49(1). New section 49(2) provides that section 49(1) is not contravened by reason only of the screening of an advertisement for a film or a computer game classified, or assessed as likely to be classified, MA15+ and above, during a program for the exhibition of a film of an equal or higher classification, or where the place in which the screening occurs is a restricted publications area. New section 49(2) does not apply in relation to material classified, or assessed as likely to be classified, RC or X18+. The amendment reflects the commensurate audience rule, and removes the reverse legal onus defences in existing section 49(2) to ensure consistency with the right to be presumed innocent in section 25 of the Charter of Human Rights and Responsibilities Act 2006 (the Human Rights Charter). Clause 9 substitutes section 50 of the Principal Act, with a new provision that provides that a person must not sell a film (the feature film) that is accompanied by an advertisement for a film or a computer game unless the feature film has a classification that is equal to or higher than the classification or assessment of the likely classification given to the advertised film or computer game. Clause 9 does not apply in relation to material classified, or assessed as likely to be classified, RC or X18+. As with clause 7, clause 9 reflects the commensurate audience rule. As required by section 47(1)(a) of the Principal Act, advertising for an unclassified film or an unclassified computer game must comply with the conditions in the Advertising Scheme. Clause 10 substitutes section 51 of the Principal Act with a new provision that provides that a person must not sell a computer game (the main game) that is accompanied by an advertisement for a film or a computer game unless the main game has a classification 4

 


 

equal to or higher than the classification or assessment of the likely classification given to the advertised film or computer game. As with clauses 7 and 9, clause 10 reflects the commensurate audience rule. As required by section 47(1)(a) of the Principal Act, advertising for an unclassified computer game or an unclassified film must comply with the conditions in the Advertising Scheme. Clause 11 amends section 55(a) of the Principal Act to confine it to advertisements for classified films. Clause 11 also amends section 55(c) to confine it to advertisements for classified computer games. Section 55 of the Principal Act provides that a person must not publish a publication containing an advertisement for a film, certain publications, or a computer game unless the publication also contains a list of the classification symbols and determined markings for films or publications or computer games respectively. Clause 11 is required to clarify that an advertisement for an unclassified film or an unclassified computer game which is published in accordance with the conditions of the Advertising Scheme is not captured by the relevant offences in section 55. The Commonwealth Amendment Act enables the Commonwealth Minister to make a legislative instrument to determine the conditions for advertising unclassified films and unclassified computer games under the Advertising Scheme (section 31(1) of the Commonwealth Act), which may include conditions about the requirements for the display of a message about classification (see section 31(2) of the Commonwealth Act). A failure to comply with the conditions of the Advertising Scheme that are set out in the Commonwealth legislative instrument will be captured by the offence in new section 47(1)(a) of the Principal Act. Clause 12 omits "classified" in section 62(1)(b) of the Principal Act. This amendment mirrors the amendment to the equivalent provision of the Commonwealth Act, section 30(1)(b), made by the Commonwealth Amendment Act, and ensures consistency with the Commonwealth Act in relation to the Classification Board Director's "call in powers" for advertisements for films. The amendment enables the Director to call in an advertisement for either a classified or an unclassified film. 5

 


 

Clause 13 inserts new section 87G in the Principal Act. New section 87G(1) is the transitional provision for Part 2 of the Bill. Section 87G(1) provides that amendments made by Part 2 apply to an advertisement published or screened, or an advertisement that accompanies a film or computer game sold, on or after the commencement of Part 2. New section 87G(2) applies in relation to a certificate of exemption for an unclassified film granted under section 33 of the Commonwealth Act as in force before its repeal by the Commonwealth Amendment Act. Section 87G(2) provides that a person does not commit an offence against Part 5 of the Principal Act by reason only of advertising a film in accordance with the conditions, if any, determined under section 35 of the Commonwealth Act as in force before its repeal. New section 87G(3) provides that subsection (2) is subject to the regulations, if any, made under item 13 of Schedule 1 to the Commonwealth Amendment Act. This reflects the Commonwealth Amendment Act which enables 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 that the Commonwealth Amendment Act comes into force. PART 3--REPEAL Clause 14 provides for the automatic repeal of this amending Bill on 1 July 2010. As suggested by the Scrutiny of Acts and Regulations Committee, all amending Acts now contain an automatic repeal provision, which will save the time and expense of having to repeal amending Acts in statute law revision Bills. The repeal of this Act does not affect in any way the operation of the amendments made by this Act (see section 15(1) of the Interpretation of Legislation Act 1984). 6

 


 

 


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