Commonwealth Coat of Arms of Australia

Classification (Publications, Films and Computer Games) Act 1995

No. 7 of 1995

An Act relating to the classification of publications, films and computer games,
and related matters

[Assented to 15 March 1995]

The Parliament of Australia enacts:

PART 1—PRELIMINARY

Short title

1. This Act may be cited as the Classification (Publications, Films and Computer Games) Act 1995.

Commencement

2.(1) Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.

(2) Subject to subsection (3), the remaining provisions of this Act commence on a day to be fixed by Proclamation.

(3) If the provisions referred to in subsection (2) do not commence under that subsection within the period of 12 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

Purpose

3. The purpose of this Act is to provide for the classification of publications, films and computer games for the Australian Capital Territory. This Act is intended to form part of a Commonwealth/ State/Territory scheme for the classification of publications, films and computer games and for the enforcement of those classifications.

Note: Provisions dealing with the consequences of not having material classified and the enforcement of classification decisions are to be found in complementary laws of the States and Territories.

Powers and functions under State or Territory laws

4. The Board, the Review Board and the Director may exercise powers and perform functions relating to the classification of publications, films and computer games that are conferred on them under an arrangement between the Commonwealth and a State or the Commonwealth and the Northern Territory.

Definitions

5. In this Act, unless the contrary intention appears:

"advertisement" for a publication, a film or a computer game means any form of advertising for the publication, film or game, and includes:

(a) advertising, whether visual or audible, whether in the form of written or spoken words or other sounds and whether in a book, paper, magazine, poster, photograph, sketch, program, film or slide or in any other form; and

(b) advertising on a container or wrapping enclosing the publication, film or game; and

"adult" means a person who is 18 or older;

"Board" means the Classification Board;

"business day" means a day other than a Saturday, Sunday or public holiday;

"classification certificate" means a certificate issued under section 25;

"classified" means classified under this Act;

"Code" means the National Classification Code set out in the Schedule, or that Code as amended in accordance with section 6;

"computer game" means a computer program and associated data capable of generating a display on a computer monitor, television screen, liquid crystal display or similar medium that allows the playing of an interactive game, but does not include:

(a) an advertisement for a publication, a film or a computer game; or

(b) business, accounting, professional, scientific or educational computer software unless the software contains a computer game that would be likely to be classified MA (15+) or RC;

"computer generated image" means an image (including an image in the form of text) produced by use of a computer on a computer monitor, television screen, liquid crystal display or similar medium from electronically recorded data;

"contentious material", in relation to a computer game, means material in the computer game that a reasonable adult would consider unsuitable for viewing or playing by a person under 15;

"Convenor" means the Convenor of the Review Board;

"decision" means a decision of the Board:

(a) to classify or refuse to classify a publication, a film or a computer game; or

(b) to determine the consumer advice to apply to a film or a computer game; or

(c) to approve or refuse to approve an advertisement for a publication, a film or a computer game or to impose conditions on such an approval; or

(d) to grant a certificate of exemption for a film; or

(e) to decline to deal with or to deal further with an application under this Act;

and includes a decision of the Board under section 39;

"demonstrate" includes exhibit, display, screen, play or make available for playing;

"Deputy Director" means the Deputy Director of the Board;

"determined markings" means markings determined by the Director under section 8;

"Director" means the Director of the Board;

"film" includes a cinematograph film, a slide, video tape and video disc and any other form of recording from which a visual image, including a computer generated image, can be produced, but does not include:

(a) a computer game; or

(b) an advertisement for a publication, a film or a computer game; or

(c) a recording for business, accounting, professional, scientific or educational purposes unless it contains a visual image that would be likely to cause the recording to be classified MA, R, X or RC;

"interactive game" means a game in which the way the game proceeds and the result achieved at various stages of the game is determined in response to the decisions, inputs and direct involvement of the player;

"member" means a member of the Board, and includes a temporary member;

"minor" means a person under 18;

"participating Minister" means a Minister of a State or Territory who is responsible for censorship matters where the State or Territory is a participant in the scheme referred to in section 3, but does not include such a Minister in relation to action to be taken under a provision of this Act if:

(a) the action relates to publications, films or computer games; and

(b) the State or Territory does not participate in the scheme in relation to publications, films or computer games, as the case may be;

"publication" means any written or pictorial matter, but does not include:

(a) a film; or

(b) a computer game; or

"publish" includes sell, offer for sale, let on hire, exhibit, display, distribute and demonstrate;

"Review Board" means the Classification Review Board;

"submittable publication" means an unclassified publication that, having regard to the Code and the classification guidelines to the extent that they relate to publications, contains depictions or descriptions of sexual matters, drugs, nudity or violence that are likely to cause offence to a reasonable adult to the extent that the publication should not be sold as an unrestricted publication;

"temporary member" means a person appointed under section 50;

"work" means a cinematic composition that:

(a) appears to be self-contained; and

(b) is produced for viewing as a discrete entity;

but does not include an advertisement.

Amendments of the Code

6.(1) The Code may be amended from time to time in accordance with this section.

(2) If the Minister and each participating Minister agree to an amendment of the Code, the Code is taken to be amended accordingly.

(3) If the Code is amended, the Minister must cause a copy of the amended Code to be published in the Gazette.

PART 2—CLASSIFICATION

Division 1—Preliminary

Types of classifications

7.(1) The following are the different types of classifications for publications in ascending order:

Unrestricted

Category 1 restricted

Category 2 restricted

RC (Refused Classification).

(2) The following are the different types of classifications for films in ascending order:

G (General)

PG (Parental Guidance)

M (Mature)

MA (Mature Accompanied)

R (Restricted)

X (Restricted)

RC (Refused Classification).

(3) The following are the different types of classifications for computer games in ascending order:

G (General)

G (8+) (General)

M (15+) (Mature)

MA (15+) (Mature Restricted)

RC (Refused Classification).

Markings for classifications

8. The Director may, by notice in the Gazette, determine:

(a) markings for each type of classification giving information about the classification; and

(b) the manner in which the markings are to be displayed.

Division 2—Classification of publications, films and computer games

Classification in accordance with the Code

9. Publications, films and computer games are to be classified in accordance with the Code and the classification guidelines.

Classifications in writing etc.

10.(1) Classifications of publications, films and computer games are to be made by the Board in writing on application.

(2) Subsection (1) does not require an application for a reclassification under subsection 39(2).

Matters to be considered in classification

11. The matters to be taken into account in making a decision on the classification of a publication, a film or a computer game include:

(a) the standards of morality, decency and propriety generally accepted by reasonable adults; and

(b) the literary, artistic or educational merit (if any) of the publication, film or computer game; and

(c) the general character of the publication, film or computer game, including whether it is of a medical, legal or scientific character; and

(d) the persons or class of persons to or amongst whom it is published or is intended or likely to be published.

Classification guidelines

12.(1) The Minister may, with the agreement of each participating Minister, determine guidelines to assist the Board in applying the criteria in the Code.

(2) The Minister must cause a copy of the guidelines to be published in the Gazette.

(3) If the Minister and each participating Minister agree to an amendment of the guidelines, the guidelines are taken to be amended accordingly.

(4) If the guidelines are amended, the Minister must cause a copy of the amended guidelines to be published in the Gazette.

Applications for classification of publications

13.(1) An application for classification of a publication must be:

(a) in writing; and

(b) made in a form approved by the Director in writing; and

(d) accompanied by:

(i) the prescribed fee for that category of publication; and

(ii) a copy of the publication.

Applications for classification of films

14.(1) An application for classification of a film must be:

(a) in writing; and

(b) made in a form approved by the Director in writing; and

(d) accompanied by:

(i) the prescribed fee for that category of film; and

(ii) an adequate written synopsis of the film in English that includes a statement or summary of any incidents, or of the plot, depicted or intended to be depicted by the film.

(2) An application for classification of a film may be accompanied by a copy of any advertisement that is proposed to be used to advertise the film.

(3) Separate applications must be made for a version of a film that is for public exhibition and a version of the film that is for sale or hire.

Discretion of Board

15.(1) If:

(a) an application is made for the classification as a film of a recording that contains a computer generated image; and

(b) the Board is of the opinion that the recording is more appropriately dealt with as a computer game having regard to:

(i) the definition of "computer game" in section 5; and

(ii) the degree of interactivity involved; and

(iii) the nature of the visual images produced; the Board must decline to deal with the application.

(2) If the Board declines to deal with the application under this section, the Director must, within 14 days after the decision is made:

(a) notify the applicant in writing of the decision and of the reasons for the decision; and

(b) invite the applicant to provide the additional material that is necessary for an application for classification of a computer game.

(3) After receiving the material and any additional fees required, the Board must deal with the application as an application for classification of a computer game.

Prescribed fees for certain films

16.(1) If, in the opinion of the Director, a film comprises more than one work and runs for more than 90 minutes, the prescribed fee for the film is payable for each 90 minutes, or part of 90 minutes, of the length of the film.

(2) If the Director makes a decision under this section, the Director must, within 28 days after making the decision, notify in writing the person by whom the fee is payable of the decision and of the reasons for the decision.

(3) The notice must include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, an application may be made to the Administrative Appeals Tribunal for a review of the decision.

(4) A failure to comply with subsection (3) does not invalidate the decision.

Applications for classification of computer games

17.(1) An application for classification of a computer game must be:

(a) in writing; and

(b) made in a form approved by the Director in writing; and

(d) accompanied by the prescribed fee for that category of game; and

(e) accompanied by a document setting out:

(i) the title of the game; and

(ii) the year of production; and

(iii) the name of the publisher; and

(iv) the country of origin; and

(v) a description of game play.

(2) If any game play is likely to be regarded as containing contentious material, the application must also be accompanied by a video tape recording of the game play.

(3) If the applicant is of the opinion that the game would, if classified, be classified G, G (8+) or M (15+), the applicant may also submit with the application:

(a) an assessment of the computer game, signed by or on behalf of the applicant and prepared by a person authorised by the Director for the purpose, including:

(i) a recommended classification of the game; and

(ii) consumer advice appropriate to the game; and

(b) a copy of any advertisement that is proposed to be used to advertise the game.

(4) If the Director or the Board disagrees with the recommended classification, the Director must give a notice in writing to the applicant:

(a) stating the particulars of the disagreement; and

(b) inviting the applicant to make, within 14 days after receiving the notice, any additional submissions the applicant may wish to make before the Board makes a decision on the application.

(5) The Director may authorise a person for the purpose of subsection (3) only if the person has completed training by the Office of Film and Literature Classification in the making of assessments.

Considered form of film or computer game to be final

18.(1) The Board must assume, in classifying a film or a computer game, that the film or game will be published only in the form in which it is considered for classification.

(2) A classification approved by the Board for a film is taken to be the classification for each work comprised in the film.

Screening of films and demonstration of computer games before classification

19.(1) The Board may decline to deal with an application for classification of a film or a computer game, or decline to deal further with the application, unless:

(a) the applicant provides a copy of the film or game for screening or demonstration before the Board; and

(b) in the opinion of the Board, the copy of the film or game provided is complete and is adequate to allow a proper consideration of the application.

(2) The Board may decline to deal with an application for classification of a computer game, or decline to deal further with the application, unless the applicant demonstrates the computer game before the Board.

(3) The Director must notify the applicant in writing of a decision under subsection (1) or (2).

(4) The applicant and not more than 4 representatives of the applicant, and any other persons approved by the Director, are entitled to be present at a screening or demonstration.

(5) A screening or demonstration must take place at a reasonable time and place specified by the Director.

(6) The Director may keep the copy of the film or game or, if the Director and the applicant agree, another copy of the film or game, for as long as the Director requires.

(7) Neither the Commonwealth nor a member is liable for any damage caused to a copy of a film or a computer game as a result of a screening or a demonstration.

Board to decide consumer advice for films and computer games

20.(1) If the Board:

(a) classifies a film PG, M, MA, R or X; or

(b) classifies a computer game G, G (8+), M (15+) or MA (15+);

it must determine consumer advice giving information about the content of the film or game.

(2) If the Board classifies a film G, it may determine consumer advice giving information about the content of the film.

Declassification of classified films or computer games

21.(1) Subject to subsection (2), if a classified film or a classified computer game is modified, it becomes unclassified when the modification is made.

(2) Subsection (1) does not apply to a modification that consists of including an advertisement, other than an advertisement to which section 22 applies.

(3) If a classified computer game is found to contain contentious material (whether available through use of a code or otherwise) that was not brought to the attention of the Board before the classification was made, it is taken never to have been classified.

Classification of films or computer games containing advertisements

22. A film or computer game must not be classified if it contains:

(a) an advertisement for a film or computer game that has not been classified; or

(b) an advertisement for a film or computer game that has a higher classification.

Division 3—Submittable publications

Calling in submittable publications for classification

23.(1) If:

(a) the Director has reasonable grounds to believe that a publication is a submittable publication; and

(b) the publication is being published in the Australian Capital Territory, or the Director has reasonable grounds to believe that it will be published in the Australian Capital Territory;

the Director may, by notice in writing given to the publisher of the publication, require the publisher to submit an application for classification of the publication, or of subsequent issues of the publication, by the Board.

(2) The Director must cause notice of a decision under subsection (1) to be published in the Gazette.

(3) A person to whom a notice under this section is given must, within 3 business days after receiving the notice, comply with the notice.

Penalty: 20 penalty units.

(4) An offence against subsection (3) is a strict liability offence.

(5) It is a defence to a prosecution for an offence against subsection (3) if the defendant proves that he or she did not intend to:

(a) publish the publication in the Australian Capital Territory; or

(b) cause, authorise, permit or licence the publication to be published in the Australian Capital Territory.

Division 4—Calling in computer games

Calling in computer games for classification

24.(1) If:

(a) the Director has reasonable grounds to believe that a computer game is likely to contain contentious material; and

(b) the computer game is being published in the Australian Capital Territory, or the Director has reasonable grounds to believe that it will be published in the Australian Capital Territory;

the Director may, by notice in writing given to the publisher of the game, require the publisher to submit an application for classification of the game.

(2) The Director must cause notice of a decision under subsection (1) to be published in the Gazette.

(3) A person to whom a notice under this section is given must, within 3 business days after receiving the notice, comply with the notice.

Penalty: 20 penalty units.

(4) An offence against subsection (3) is a strict liability offence.

(5) It is a defence to a prosecution for an offence against subsection (3) if the defendant proves that he or she did not intend to:

(a) publish the computer game in the Australian Capital Territory; or

(b) cause, authorise, permit or licence the computer game to be published in the Australian Capital Territory.

Division 5—Notice of decisions

Classification certificates

25.(1) The Director must issue a classification certificate for each publication, film and computer game that is classified by the Board.

(2) A classification certificate must include:

(a) the determined markings for the classification given to the publication, film or computer game; and

(b) for a film or computer game—any consumer advice for the film or game; and

Notice of decisions

26.(1) The Director must give written notice of a decision of the Board to the applicant.

(2) If there was no applicant, or the applicant is not the person on whose application an earlier decision was made, the Director must give the notice to the persons who, in his or her opinion, have an interest in the matter, whether as a publisher of the publication, film or computer game or otherwise.

(3) The Convenor must give written notice of a decision of the Review Board to the applicant.

(4) The notice must be given as soon as practicable, but not later than 30 days after the decision.

(5) A copy of the classification certificate is enough notice of the decision.

Applications for information

27.(1) A person may apply to the Director for a copy of a classification certificate or of a notice under section 26.

(2) If the applicant pays the prescribed fee, the Director must give the copy to the applicant.

When decisions take effect

28. A decision takes effect on the day on which notice of the decision is given under section 26.

PART 3—APPROVAL OF ADVERTISEMENTS

Division 1—Approval of general advertisements

Approval of advertisements

29.(1) The Board may approve or refuse to approve an advertisement for a publication, a film or a computer game either on an application for approval or on its own initiative. An approval of an advertisement may be subject to conditions.

(2) An application for approval of an advertisement must be:

(a) in writing; and

(b) made in a form approved by the Director in writing; and

(d) accompanied by the prescribed fee for that category of advertisement.

(3) The matters to be taken into account in deciding whether to approve an advertisement include the matters set out in section 11 and the classification guidelines referred to in section 12.

(4) The Board must refuse to approve an advertisement if, in the opinion of the Board, the advertisement:

(a) describes, depicts or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that it offends against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that it should not be approved; or

(b) depicts or describes a minor (whether engaged in sexual activity or not) who is, or who appears to be, under 16 in a way that is likely to cause offence to a reasonable adult; or

(d) is used, or is likely to be used, in a way that is offensive to a reasonable adult.

(5) The Board must refuse to approve an advertisement for a publication if the publication:

(a) has been classified RC; or

(b) is an unclassified submittable publication.

(6) The Board must refuse to approve an advertisement for a film or a computer game that:

(a) has been classified RC; or

(b) has not been classified.

(7) Paragraph (6)(b) does not apply to a film for which a certificate of exemption is in force under section 33.

Calling in advertisements

30.(1) The Director may, by notice in writing given to:

(a) the publisher of a publication that:

(i) the Director has reasonable grounds to believe is a submittable publication; and

(ii) is being published in the Australian Capital Territory, or the Director has reasonable grounds to believe will be published in the Australian Capital Territory; or

(b) the publisher of a classified film that is being published in the Australian Capital Territory, or that the Director has reasonable grounds to believe will be published in the Australian Capital Territory; or

(c) the publisher of a computer game that is being published in the Australian Capital Territory, or that the Director has reasonable grounds to believe will be published in the Australian Capital Territory;

require the publisher to submit to the Board for approval a copy of every advertisement used or intended to be used in connection with the publishing.

(2) A person to whom a notice under this section is given must, within 3 business days after receiving the notice, comply with the notice.

Penalty: 20 penalty units.

(3) An offence against subsection (2) is a strict liability offence.

(4) It is a defence to a prosecution for an offence against subsection (2) if the defendant proves that he or she did not intend to:

(a) publish the publication, film or computer game in the Australian Capital Territory; or

(b) cause, authorise, permit or licence the publication, film or computer game to be published in the Australian Capital Territory.

Division 2—Advertising for unclassified films

Definitions

31. In this Division:

"eligible film" means an unclassified film that complies with conditions determined by the Minister by notice in the Gazette;

"excluded film" means a film that is exempt from classification, or from enforcement provisions relating to the public exhibition or sale or hire of films, under a law of a State or Territory;

"film" means a film as defined in section 5 that is intended for public exhibition that is not an excluded film.

Certificates of exemption

32.(1) A person who is, or proposes to be, the distributor or exhibitor of an eligible film may apply to the Board for a certificate of exemption in relation to the film for advertising purposes.

(2) An application for a certificate of exemption must be:

(a) in writing; and

(b) made in a form approved by the Director in writing; and

(d) accompanied by the prescribed fee for that category of film.

Granting of certificates of exemption

33.(1) Subject to this section, the Board may grant a certificate of exemption in relation to an eligible film.

(2) The Board must not grant a certificate of exemption in relation to a film if the Board is of the opinion that, if the film were classified, it would be classified RC, X or R.

(3) The Board must not, without the written approval of the Minister, grant more than 30 certificates of exemption in a calendar year.

Board may refuse certificate

34. The Board may refuse to grant a certificate of exemption in relation to a film if the Board is of the opinion that the applicant has not given to the Board a copy of all advertising matter relating to the film.

Conditions of exemptions

35. The Minister may, by notice in the Gazette, determine conditions that are to apply to the use of advertising matter in relation to films in respect of which certificates of exemption have been granted.

Revocation of exemptions

36. The Director may, by notice in writing given to a person to whom a certificate of exemption has been granted, revoke the certificate if the Board is satisfied that there has been a breach of a condition applicable to the exemption.

Review of decision not to grant exemption

37. If:

(a) the Board refuses to grant a certificate of exemption in respect of an eligible film; and

(b) the refusal was not because of subsection 33(3);

the applicant may apply to the Review Board for a review of the decision.

PART 4—RECLASSIFICATION

Limit on reclassification

38.(1) If:

(a) a publication, a film or a computer game is classified; or

(b) an advertisement is approved or refused approval;

the Board must not reclassify the publication, film or computer game, or approve or refuse to approve the advertisement, within the period of 2 years commencing on the day on which the classification, approval or refusal of approval was done.

(2) Subsection (1) does not prevent the Board classifying a film or computer game that becomes unclassified under section 21.

Reclassification etc. after 2 years

39.(1) After that period of 2 years, the Board may:

(a) reclassify the publication, film or computer game; or

(b) reconsider the advertisement and approve or refuse to approve it.

(2) The Board may act under subsection (1) at the request of the Minister or on its own initiative.

(3) If the Minister requests the Board to act under subsection (1), the Board must do so.

(4) If a participating Minister asks the Minister, in writing, to make a request under this section, the Minister must do so.

Notice of intention to reclassify etc.

40.(1) If the Board intends to reclassify a publication, a film or a computer game or reconsider a decision on an advertisement, the Director must give notice of that intention, inviting submissions about the matter.

(2) The Director must cause the contents of the notice to be publicised in such manner as the Director decides at least 30 days before the Board proposes to consider the matter.

(3) If practicable, the Director must give a copy of the notice to the person on whose application the former classification or approval was made or given at least 30 days before the Board proposes to consider the matter.

(4) The notice must specify the day on which the Board proposes to consider the matter.

Consideration of submissions

41. The matters that the Board is to take into account in reclassifying the publication, film or computer game or in approving or refusing to approve the advertisement include issues raised in submissions made to the Board about the matter.

PART 5—REVIEW OF DECISIONS

The persons who may apply for review

42.(1) Any of the following persons may apply to the Review Board for a review of a decision:

(a) the Minister;

(b) the applicant for classification of the publication, film or computer game concerned or the applicant for approval of the advertisement concerned;

(d) a person aggrieved by the decision.

(2) If a participating Minister asks the Minister, in writing, to apply for a review of a decision, the Minister must do so.

Applications for review

43.(1) An application for review of a decision must be:

(a) in writing; and

(b) made in a form approved by the Convenor in writing; and

(d) except for an application made by the Minister—accompanied by the prescribed fee.

(2) An application by the Minister for review of a decision may be made at any time.

(3) Any other application for review of a decision must be made:

(a) within 30 days after the applicant received notice of the decision; or

(b) within such longer period as the Review Board allows.

(4) If a person other than the original applicant applies for review of a decision, the Convenor must notify the original applicant in writing of the application and of the day on which it will be considered.

Dealing with applications

44.(1) The Review Board must deal with an application for review of a decision in the same way that the Board deals with an application for classification of a publication, film or computer game or for approval of an advertisement.

(2) Section 19 (other than subsection 19(6)) applies for the purpose of an application for review as if:

(a) references in that section to the Board were references to the Review Board; and

(b) references in that section to the Director were references to the Convenor.

PART 6—THE CLASSIFICATION BOARD

Division 1—Establishment of the Board

Establishment of Classification Board

45. A Classification Board is established.

Constitution of Board

46. The Board is to consist of:

(a) a Director; and

(b) a Deputy Director; and

(d) other members.

Maximum number of members

47. There must not be more than 20 members.

Appointment of members

48.(1) The members (other than temporary members) are to be appointed by the Governor-General.

(2) In appointing members, regard is to be had to the desirability of ensuring that the membership of the Board is broadly representative of the Australian community.

(3) The Minister must, before recommending the appointment of a member (other than a temporary member), consult with participating Ministers.

Full-time and part-time appointments

49.(1) The Director, the Deputy Director and the Senior Classifiers are to be appointed as full-time members.

(2) Any other member may be appointed either as a full-time member or as a part-time member.

Temporary members

50.(1) The Minister may appoint a person to be a temporary member of the Board if, in his or her opinion, it is necessary to do so for the efficient dispatch of the Board's business.

(2) An appointment under this section is to be for a maximum period of 3 months.

Terms and conditions of appointment

51.(1) A member (other than a temporary member) is to be appointed for the period (not longer than 5 years) specified in the instrument of appointment but is eligible for reappointment.

(2) A member holds office on such terms and conditions (if any) in relation to matters not provided for by this Act as are determined by the Governor-General.

(3) A member must not hold office as a member for a total of more than 7 years.

Division 2—Responsibilities and powers of the Director

Responsibilities and powers of the Director

52.(1) The Director is responsible for ensuring that the business of the Board is conducted in an orderly and efficient way and, for that purpose, the Director may give directions as to the arrangement of the business of the Board.

(2) For the purpose of managing the administrative affairs of the Board, the Director may, on behalf of the Commonwealth, do anything that is necessary or convenient to be done, including:

(a) entering into contracts; and

(b) acquiring or disposing of personal property.

(3) The Director must not, without the approval of the Minister, enter into a contract under which the Commonwealth is to pay or receive an amount over $250,000 or, if a higher amount is prescribed, that higher amount.

Powers of Director under State/Territory laws

53. The Director may exercise powers conferred on him or her by:

(a) a provision of a law of a State or the Northern Territory that corresponds to section 23, 24 or 30; or

(b) a provision of a law of a State or Territory that:

(i) relates to the granting of exemptions from a State or Territory law relating to publications, films or computer games or approval of organisations in relation to films; or

(ii) relates to the approval of forms; or

(iii) is prescribed.

Division 3—Staff

Staff

54.(1) The staff of the Board are to be persons appointed or employed under the Public Service Act 1922.

(2) The Director has all the powers of a Secretary under the Public Service Act 1922 as they relate to the branch of the Australian Public Service comprising the Office of Film and Literature Classification.

(3) The Director may make arrangements with an authority of the Commonwealth for the services of officers of that authority to be made available for the purposes of the Board.

Consultants

55. The Director may engage consultants to assist the Board in the performance of its functions.

Division 4—Procedure of the Board

Board to regulate its procedure

56. Subject to this Division, the procedure to be followed by the Board is as determined by the Director.

Decisions of the Board

57.(1) This section applies to the consideration by the Board of an application or of an advertisement.

(2) The Director may give directions as to the constitution of the Board for the purpose of that consideration.

(3) If the members of the Board dealing with a matter are divided in opinion, but not equally divided, the decision of the majority prevails.

(4) If the members of the Board are equally divided in opinion:

(a) if the Board constituted for the purposes of the matter includes the Director—the Director has a casting vote as well as a deliberative vote; and

(b) in any other case—the Director must vary the constitution of the Board by adding 1 or more other members and the matter is to be considered again.

(5) The Director may decide the way in which decisions of the Board, and opinions of individual members, are to be recorded.

Procedures that apply to meetings of the Board

58.(1) The Director is to convene such meetings of the Board as he or she thinks necessary for the efficient performance of its functions.

(2) Meetings are to be held at such places as the Director decides.

(3) The Director is to preside at all meetings at which he or she is present.

(4) If the Director is not present at a meeting:

(a) the Deputy Director is to preside; or

(b) if the Deputy Director is not present—the members present are to appoint a member to preside.

(5) At a meeting, 5 members constitute a quorum.

(6) Questions arising at a meeting are to be determined by a majority of the votes of the members present and voting.

(7) If a matter relating to the classification of a publication, film or computer game or the approval of an advertisement is referred to a meeting of the Board, only those members who have read the publication, seen the film or advertisement or seen the computer game demonstrated may vote on the matter.

(8) The person presiding at a meeting has a deliberative vote and, if necessary, also has a casting vote.

Division 5—Administrative Provisions

Delegations

59.(1) The Director may by signed instrument delegate to another member all or any of the Director's powers under this Act, other than powers under subsection 54(2).

(2) Subject to subsection (3), the Director may by signed instrument delegate to a person who is an officer of the Australian Public Service and who is performing duties in the Office of Film and Literature Classification all or any of the Board's powers under this Act in relation to:

(a) the classification of publications, films or computer games; or

(b) the approval of advertisements for publications, films or computer games.

(3) A power may only be delegated under subsection (2) if the Board has, by resolution, determined that the delegation is desirable for the efficient running of the Board.

Remuneration and allowances

60.(1) A member is to be paid the remuneration and allowances determined by the Remuneration Tribunal. If there is no determination in force, the member is to be paid such remuneration as is prescribed.

(2) A member is to be paid such other allowances as are prescribed.

(3) Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973.

Leave of absence

61.(1) Subject to section 87E of the Public Service Act 1922, a member has the recreation leave entitlements determined by the Remuneration Tribunal.

(2) The Minister may grant a member leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.

Outside employment

62.(1) Except with the consent of the Minister, a full-time member must not engage in paid employment outside the duties of his or her office.

(2) Subsection (1) does not apply to service in the Defence Force.

Resignation

63.(1) A member (other than a temporary member) may resign by giving a signed notice of resignation to the Governor-General.

(2) A temporary member may resign by giving a signed notice of resignation to the Minister.

Disclosure of interests

64.(1) A member who has a conflict of interest in relation to a matter being considered or about to be considered by the Board must disclose the matters giving rise to that conflict to the Board as soon as possible after becoming aware of the conflict.

(2) The member must not take part in the making of a decision by the Board in relation to the matter unless the Director agrees or, if the member is the Director, the Minister agrees.

(3) For the purposes of this section, a member has a conflict of interest in relation to a matter being considered or about to be considered by the Board if the member has any interest, pecuniary or otherwise, that could conflict with the proper performance of the member's functions in relation to that matter.

Termination of appointment

65.(1) The Governor-General may terminate the appointment of a member for misbehaviour or physical or mental incapacity.

(2) The Governor-General must terminate the appointment of a member if:

(a) the member:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or

(b) the member is a full-time member and is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(c) the member is a part-time member and is absent, without reasonable excuse, from 3 consecutive meetings of the Board; or

(d) the member engages in paid employment contrary to section 62; or

(e) the member fails, without reasonable excuse, to comply with section 64.

(3) If a member is:

(a) an eligible employee for the purposes of the Superannuation Act 1976; or

(b) a member of the superannuation scheme established by deed under the Superannuation Act 1990;

the Governor-General may, with the member's consent, retire the member from office on the ground of incapacity.

(4) In spite of anything in this Act, a member who:

(a) is an eligible employee for the purposes of the Superannuation Act 1976; and

(b) has not reached his or her retiring age within the meaning of that Act; cannot be retired from office on the ground of invalidity within the meaning of Part IVA of that Act unless the Commonwealth Superannuation Board of Trustees No. 2 has given a certificate under section 54C of that Act.

(5) In spite of anything in this Act, a member who:

(a) is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and

(b) is under 60;

cannot be retired from office on the ground of invalidity within the meaning of that Act unless the Commonwealth Superannuation Board of Trustees No. 1 has given a certificate under section 13 of that Act.

(6) This section applies to a temporary member as if references to the Governor-General were references to the Minister.

Acting appointments

66.(1) If:

(a) there is a vacancy in the office of Director, whether or not an appointment has previously been made to the office; or

(b) the Director is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office;

the Deputy Director is to act as the Director during the vacancy, absence or inability.

(2) If the Deputy Director is not available, the Minister may appoint another member to act as the Director during the vacancy, absence or inability.

(3) The Minister may appoint a person to act in the office of a member other than the Director:

(a) during a vacancy in the office, whether or not an appointment has previously been made to the office; or

(b) during a period, or during all periods, when the holder of the office is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office.

(4) Anything done by or in relation to a person purporting to act under this section is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the appointment; or

(d) the occasion to act had not arisen or had ceased.

Annual report

67.(1) As soon as practicable after the end of each financial year, the Director must give to the Minister:

(a) a report of the management of the administrative affairs of the Board during the financial year; and

(b) financial statements for the Board and the Review Board for that financial year.

(2) The financial statements are to be in a form approved by the Minister for Finance.

(3) Before giving the financial statements to the Minister, the Director must give them to the Auditor-General who must report to the Minister:

(a) whether, in the opinion of the Auditor-General, the statements are based on proper accounts and records; and

(b) whether the statements are in agreement with the accounts and records; and

(c) whether, in his or her opinion, the receipt, expenditure and investment of money, and the acquisition and disposal of assets, during the year have been in accordance with this Act; and

(d) as to such other matters arising out of the statements as the Auditor-General considers should be reported to the Minister.

(4) The Minister must cause a copy of the report and financial statements, together with a copy of the report of the Auditor-General, to be laid before each House of the Parliament within 15 sitting days of that House after their receipt by the Minister.

Proper accounts and records to be kept

68.(1) The Director must ensure that proper accounts and records of the transactions and affairs relating to the administration of the Board and of the Review Board are kept.

(2) The Director must do all things necessary to ensure that:

(a) all payments out of money appropriated by the Parliament for the purposes of the Board or the Review Board are correctly made and properly authorised; and

(b) proper control is maintained over assets held by, or in the custody of, the Director on behalf of the Commonwealth and over the incurring of liabilities on behalf of the Commonwealth under this Act.

Audit

69.(1) The Auditor-General must, at least once in each financial year, inspect and audit:

(a) the accounts and records of financial transactions relating to the administration of the affairs of the Board and of the Review Board; and

(b) the records relating to assets held by, or in the custody of, the Director on behalf of the Commonwealth.

(2) The Auditor-General must immediately draw the attention of the Minister to any irregularity disclosed by the inspection and audit that, in the opinion of the Auditor-General, is of enough importance to justify such action.

(3) The Auditor-General may, at his or her discretion, dispense with all or any part of the detailed inspection and audit of any accounts or records referred to in subsection (1).

(4) The Auditor-General must report to the Minister the results of the inspection and audit carried out under subsection (1).

Access to accounts and records

70.(1) The Auditor-General or a person authorised by him or her may, at all reasonable times, have full and free access to all accounts and records maintained for the Board or the Review Board that relate directly or indirectly to:

(a) the receipt or payment of money; or

(b) the acquisition, receipt, custody or disposal of assets by the Director on behalf of the Commonwealth.

(2) The Auditor-General or a person authorised by him or her may make copies of, or take extracts from, those accounts and records.

(3) The Auditor-General or a person authorised by him or her may require any person to give him or her:

(a) information in the person's possession; or

(b) information to which the person has access;

if the Auditor-General or authorised person considers the information necessary for the purposes of the functions of the Auditor-General under this Act. The person must comply with the requirement.

(4) A person who, without reasonable excuse, contravenes subsection (3) is guilty of an offence and is punishable, on conviction, by a fine of not more than 10 penalty units.

Proceedings arising out of administration of Board or Review Board

71. Any judicial or other proceeding relating to a matter arising out of the management of the administrative affairs of the Board or the Review Board, including any proceeding relating to anything done by the Director, may be instituted by or against the Commonwealth.

PART 7—THE REVIEW BOARD

Division 1—Establishment of the Review Board

Establishment of Classification Review Board

72. A Classification Review Board is established.

Constitution of Review Board

73. The Review Board is to consist of:

(a) a Convenor; and

(b) a Deputy Convenor; and

Appointment of members of the Review Board

74.(1) The members of the Review Board are to be appointed by the Governor-General.

(2) In appointing members of the Review Board, regard is to be had to the desirability of ensuring that the membership of the Review Board is broadly representative of the Australian community.

(3) The Minister must, before recommending the appointment of a member of the Review Board, consult with participating Ministers.

Members of the Review Board to be part-time

75. The members of the Review Board are to be appointed as part-time members.

Terms and conditions of appointment

76.(1) A member of the Review Board is to be appointed for the period (not longer than 5 years) specified in the instrument of appointment but is eligible for reappointment.

(2) A member of the Review Board holds office on such terms and conditions (if any) in relation to matters not provided for by this Act as are determined by the Governor-General.

(3) A member of the Review Board must not hold office as a member of the Review Board for a total of more than 7 years.

Division 2—Responsibilities and powers of the Convenor

Responsibilities and powers of the Convenor

77. The Convenor is responsible for ensuring that the business of the Review Board is conducted in an orderly and efficient way and, subject to section 78, the Convenor may give directions as to the arrangement of the business of the Review Board or the constitution of the Review Board for the purpose of considering a particular matter.

Division 3—Procedure of the Review Board

Constitution of Review Board for the purpose of its functions

78. For the purpose of performing its functions, the Review Board is to be constituted by at least 3 of its members who are to be nominated for the purpose by the Convenor.

Decisions of the Review Board

79.(1) If the members of the Review Board dealing with a matter are divided in opinion, but not equally divided, the decision of the majority prevails.

(2) If the members of the Review Board are equally divided in opinion:

(a) if the Review Board constituted for the purposes of the application or matter includes the Convenor—the Convenor has a casting vote as well as a deliberative vote; and

(b) in any other case—the Convenor is to vary the constitution of the Review Board by adding 1 or more other members and the matter is to be considered again.

(3) The Convenor may decide the way in which decisions of the Review Board, and opinions of individual members, are to be recorded.

Division 4—Administrative provisions

Remuneration and allowances

80.(1) A member of the Review Board is to be paid the remuneration and allowances determined by the Remuneration Tribunal. If there is no determination in force, the member is to be paid such remuneration as is prescribed.

(2) A member of the Review Board is to be paid such other allowances as are prescribed.

(3) Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973.

Resignation

81. A member of the Review Board may resign by giving a signed notice of resignation to the Governor-General.

Disclosure of interests

82.(1) A member of the Review Board who has a conflict of interest in relation to a matter being considered or about to be considered by the Review Board must disclose the matters giving rise to that conflict to the Review Board as soon as possible after becoming aware of the conflict.

(2) The member must not take part in the making of a decision by the Review Board in relation to the matter unless the Convenor agrees or, if the member is the Convenor, the Minister agrees.

(3) For the purposes of this section, a member of the Review Board has a conflict of interest in relation to a matter being considered or about to be considered by the Review Board if the member has any interest, pecuniary or otherwise, that could conflict with the proper performance of the member's functions in relation to that matter.

Termination of appointment

83.(1) The Governor-General may terminate the appointment of a member of the Review Board for misbehaviour or physical or mental incapacity.

(2) The Governor-General must terminate the appointment of a member of the Review Board if:

(a) the member:

(i) becomes bankrupt; or

(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii) compounds with his or her creditors; or

(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or

(b) the member is absent, without reasonable excuse, from 3 consecutive meetings of the Review Board; or

(3) If a member of the Review Board is:

(a) an eligible employee for the purposes of the Superannuation Act 1976; or

(b) a member of the superannuation scheme established by deed under the Superannuation Act 1990;

the Governor-General may, with the member's consent, retire the member from office on the ground of incapacity.

(4) In spite of anything in this Act, a member of the Review Board who:

(a) is an eligible employee for the purposes of the Superannuation Act 1976; and

(5) In spite of anything in this Act, a member of the Review Board who:

(a) is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and

(b) is under 60;

Acting appointments

84.(1) If:

(a) there is a vacancy in the office of Convenor, whether or not an appointment has previously been made to the office; or

(b) the Convenor is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office;

the Deputy Convenor is to act as the Convenor during the vacancy, absence or inability.

(2) If the Deputy Convenor is not available, the Minister may appoint another member of the Review Board to act as the Convenor during the vacancy, absence or inability.

(3) The Minister may appoint a person to act in the office of a member of the Review Board other than the Convenor:

(a) during a vacancy in the office, whether or not an appointment has previously been made to the office; or

(b) during any period, or during all periods, when the holder of the office is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office.

(4) Anything done by or in relation to a person purporting to act under this section is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the appointment; or

(d) the occasion to act had not arisen or had ceased.

Annual report

85.(1) As soon as practicable after the end of each financial year, the Convenor must give to the Minister a report of the management of the administrative affairs of the Review Board during the financial year.

(2) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.

PART 8—MISCELLANEOUS

Review by AAT

86. An application may be made to the Administrative Appeals Tribunal for review of a decision of the Director under section 16 or 91.

Evidentiary certificates

87. The Director may, on payment of the prescribed fee, issue a certificate about action taken under this Act.

Additional functions of Board

88. The Director may, with the written approval of the Minister, enter into an arrangement with a person (including an authority of the Commonwealth) for the performance of services by the Board in relation to material made available on a telecommunications service or other communications service.

Service of notices

89. A notice that may be given to a person under this Act is taken to have been given to the person if:

(a) it is personally delivered to the person; or

(b) it is sent by post addressed to the person's place of residence or business last known to the Director; or

(c) it is left at the person's place of residence or business last known to the Director with a person who is apparently at least 16 and is apparently living or employed at that place.

Payments to the States and Territories

90.(1) The Minister may enter into an agreement with a participating Minister under which amounts are to be paid to the participating Minister's State or Territory in respect of the administration by the State or Territory of the scheme referred to in section 3.

(2) Payments referred to in subsection (1) are to be made out of the Consolidated Revenue Fund, which is appropriated accordingly.

Waiver of fees

91.(1) The Director may, on application in writing by a person, waive payment of fees that would be payable under this Act if:

(a) in the opinion of the Director it is in the public interest to do so for public health or educational reasons; or

(b) the body that would be liable for the fee is an agency of the Commonwealth or of a State or Territory or is a non-profit organisation.

(2) If the Director makes a decision under this section, the Director must, within 28 days after making the decision, notify the applicant in writing of the decision and of the reasons for the decision.

(4) A failure to comply with subsection (3) does not invalidate the decision.

Act not to apply to broadcasting services under Broadcasting Services Act

92. This Act does not apply to broadcasting services to which the Broadcasting Services Act 1992 applies.

Regulations

93. The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

PART 9—TRANSITIONAL PROVISIONS AND REPEALS

Definitions

94. In this Part:

"censor" means:

(a) the Chief Censor, the Deputy Chief Censor or another member of the former Board; or

(b) a Deputy Censor appointed under the Customs (Cinematograph Films) Regulations; or

(c) a classification officer appointed under the Classification of Publications Ordinance 1983 of the Australian Capital Territory;

"former Board" means the Censorship Board constituted under the Customs (Cinematograph Films) Regulations;

"former Review Board" means the Film and Literature Board of Review constituted under the Customs (Cinematograph Films) Regulations.

Members of the Board and Review Board

95.(1) A person who, immediately before the day fixed under subsection 2(2) or the day applicable under subsection 2(3), held an office as a member of the former Board or of the former Review Board specified in the following Table continues, subject to this Act, to hold the corresponding office as a member of the Board or of the Review Board specified in the Table.

Table

Former Office	Corresponding office
Chief Censor	Director
Deputy Chief Censor	Deputy Director
Senior Censor	Senior Classifier
Other member of the former Board	Other member of the Board
Chairman of the former Review Board	Convenor
Deputy Chairman of the former Review Board	Deputy Convenor
Other member of the former Review Board	Other member of the Review Board

(2) The corresponding offices are to be held for the remainder of the terms of the former offices.

(3) For the purposes of this Act service by a person as a member of the former Board or of the former Review Board is taken to be service as a member of the Board or the Review Board.

Decisions of former Board and former Review Board

96.(1) A classification, approval or determination made by the former Board or by a censor has effect as if it had been made by the Board under this Act.

(2) A classification, approval or determination made by the former Review Board has effect as if it had been made by the Review Board under this Act.

Pending applications

97. If an application for:

(a) classification of a film, a publication or a computer game; or

(b) approval of an advertisement; or

(d) review of a decision;

is, on the day fixed under subsection 2(2) or the day applicable under subsection 2(3), pending under a law of a State or Territory, the application may be dealt with as if it had been made under this Act.

Repeals

98.(1) The Customs (Cinematograph Films) Regulations of the Commonwealth are repealed.

(2) The Classification of Publications Ordinance 1983 of the Australian Capital Territory is repealed.

__________

SCHEDULE Sections 5

NATIONAL CLASSIFICATION CODE

Classification decisions are to give effect, as far as possible, to the following principles:

(a) adults should be able to read, hear and see what they want;

(b) minors should be protected from material likely to harm or disturb them;

(d) the need to take account of community concerns about:

(i) depictions that condone or incite violence, particularly sexual violence; and

(ii) the portrayal of persons in a demeaning manner.

PUBLICATIONS

Publications are to be classified in accordance with the following Table:

Description of publication

Classification

1. Publications that:

(a) describe, depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified; or

(b) describe or depict in a way that is likely to cause offence to a reasonable adult, a minor who is, or who appears to be, under 16 (whether the minor is engaged in sexual activity or not); or

SCHEDULE—continued

Table—continued

Description of publication	Classification
2. Publications (except RC publications) that: (a) explicitly depict sexual or sexually related activity between consenting adults in a way that is likely to cause offence to a reasonable adult; or (b) depict, describe or express revolting or abhorrent phenomena in a way that is likely to cause offence to a reasonable adult and are unsuitable for a minor to see or read.	Category 2 restricted
3. Publications (except RC publications and Category 2 restricted publications) that: (a) explicitly depict nudity, or describe or impliedly depict sexual or sexually related activity between consenting adults, in a way that is likely to cause offence to a reasonable adult; or (b) describe or express in detail violence or sexual activity between consenting adults in a way that is likely to cause offence to a reasonable adult; or (c) are unsuitable for a minor to see or read.	Category 1 restricted
4. All other publications	Unrestricted

SCHEDULE—continued

FILMS

Films are to be classified in accordance with the following Table.

Description of film	Classification
1. Films that: (a) depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified; or (b) depict in a way that is likely to cause offence to a reasonable adult a minor who is, or who appears to be, under 16 (whether or not engaged in sexual activity); or (c) promote, incite or instruct in matters of crime or violence.	RC
2. Films (except RC films) that: (a) explicitly depict sexual activity between adults, where there is no sexual violence, coercion or non consent of any kind, in a way that is likely to cause offence to a reasonable adult; and (b) are unsuitable for a minor to see.	X
3. Films (except RC films and X films) that are unsuitable for a minor to see.	R
4. Films (except RC films, X films and R films) that depict, express or otherwise deal with sex, violence or coarse language in such a manner as to be unsuitable for viewing by persons under 15.	MA
5. Films (except RC films, X films, R films, MA films) that cannot be recommended for viewing by persons who are under 15.	M

SCHEDULE—continued

Table—continued

Description of film	Classification
6. Films (except RC films, R films, X films, MA films and M films) that cannot be recommended for viewing by persons who are under 15 without the guidance of their parents or guardians.	PG
7. All other films	G

SCHEDULE—continued

COMPUTER GAMES

Computer games are to be classified in accordance with the following Table.

Description of computer game	Classification
1. Computer games that: (a) depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified; or (b) depict in a way that is likely to cause offence to a reasonable adult a minor who is, or who appears to be, under 16 (whether or not engaged in sexual activity); or (c) promote, incite or instruct in matters of crime or violence; or (d) are unsuitable for a minor to see or play.	RC
2. Computer games (except RC computer games) that depict, express or otherwise deal with sex, violence or coarse language in such a manner as to be unsuitable for viewing or playing by persons under 15.	MA (15+)
3. Computer games (except RC and MA (15+) computer games) that cannot be recommended for viewing or playing by persons who are under 15.	M (15+)
4. Computer games (except RC, MA (15+) and M (15+) computer games) that cannot be recommended for viewing or playing by persons who are under 8.	G (8+)
5. All other computer games	G

[Minister's second reading speech made in—

House of Representatives on 22 September 1994

Senate on 11 October 1994]