Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Act 2014

No. 99, 2014

An Act to amend the Classification (Publications, Films and Computer Games) Act 1995, and for related purposes

Contents

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—Classification tools

Classification (Publications, Films and Computer Games) Act 1995

Schedule 2—Referral of material to law enforcement agencies

Classification (Publications, Films and Computer Games) Act 1995

Schedule 3—Exemptions

Part 1—Exempt films etc.

Classification (Publications, Films and Computer Games) Act 1995

Part 2—Certificates for exempt films and computer games

Classification (Publications, Films and Computer Games) Act 1995

Part 3—Conditional cultural exemptions

Classification (Publications, Films and Computer Games) Act 1995

Schedule 4—Modifications

Part 1—Amendments

Classification (Publications, Films and Computer Games) Act 1995

Part 2—Application of amendments

Schedule 5—Determined markings and consumer advice

Classification (Publications, Films and Computer Games) Act 1995

Schedule 6—Other amendments

Part 1—Amendments to the Classification Act

Classification (Publications, Films and Computer Games) Act 1995

Part 2—Amendments to the Broadcasting Services Act

Broadcasting Services Act 1992

Part 3—Application and saving provisions

Schedule 7—Simplified outlines

Classification (Publications, Films and Computer Games) Act 1995

Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Act 2014

No. 99, 2014

An Act to amend the Classification (Publications, Films and Computer Games) Act 1995, and for related purposes

[Assented to 11 September 2014]

The Parliament of Australia enacts:

1  Short title

  This Act may be cited as the Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Act 2014.

2  Commencement

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedule(s)

  Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Classification tools

Classification (Publications, Films and Computer Games) Act 1995

1  Section 5

Insert:

approved classification tool: see subsection 22CA(2).

2  Division 2 of Part 2 (heading)

Repeal the heading, substitute:

Division 2—Classification by the Board

3  At the end of section 10

Add:

 (3) Subsection (1) does not require an application for a classification required by subsection 22CH(4).

4  After Division 2 of Part 2

Insert:

Division 2AA—Classification by approved classification tools

Subdivision A—Approved classification tools

22CA  Approved classification tools

 (1) The Minister may approve a tool (a classification tool) for the purposes of classifying one or more of the following (the relevant material):

 (a) publications;

 (b) films;

 (c) computer games.

 (2) A tool approved under subsection (1) is an approved classification tool for the relevant material.

 (3) An approval may be given subject to the conditions specified in the approval.

 (4) In deciding whether to approve a classification tool under subsection (1), the Minister must have regard to any matters specified in written guidelines made by the Minister for the purposes of this subsection.

 (5) The Minister must not approve a classification tool under subsection (1) unless the tool will:

 (a) produce a decision on the classification of the relevant material for the Australian Capital Territory; and

 (b) determine consumer advice giving information about the content of the relevant material; and

 (c) notify the decision and the consumer advice to the Director.

 (6) An approval under subsection (1):

 (a) must be in writing; and

 (b) is not a legislative instrument; and

 (c) must be published on the Department’s website.

 (7) Guidelines made under subsection (4) are not a legislative instrument.

 (8) Guidelines made under subsection (4) must be published on the Department’s website.

22CB  Variation or revocation of approval

 (1) The Minister may vary or revoke an approval under subsection 22CA(1) if the Minister is satisfied that it is appropriate to do so, having regard to:

 (a) the matters specified in guidelines made for the purposes of subsection 22CA(4); and

 (b) any other matter the Minister considers relevant.

 (2) A variation or revocation of an approval takes effect at the time specified in the instrument varying or revoking the approval (which must not be a time before the instrument is made).

 (3) A variation or revocation of an approval:

 (a) must be in writing; and

 (b) must be published on the Department’s website.

Subdivision B—Contracts etc. in relation to approved classification tools

22CC  Contracts etc. in relation to approved classification tools

  The Minister may, on behalf of the Commonwealth, enter into a contract, arrangement or understanding for purposes relating to the development, operation or availability for use of a tool that may be approved under section 22CA (approved classification tools).

22CD  Involvement in a corporation etc. in relation to approved classification tools

 (1) The Minister may, on behalf of the Commonwealth:

 (a) participate in the formation of a corporation; or

 (b) become a member of a corporation;

for purposes relating to the development, operation or availability for use of a tool that may be approved under section 22CA (approved classification tools).

 (2) The Minister may, on behalf of the Commonwealth, appoint a person (whether or not engaged under the Public Service Act 1999) to a body or organisation (whether within or outside Australia) for purposes relating to the development, operation or availability for use of a tool that may be approved under section 22CA (approved classification tools).

22CE  Executive power of the Commonwealth

  This Subdivision does not, by implication, limit the executive power of the Commonwealth.

Subdivision C—Classification by approved classification tools

22CF  Classification by approved classification tools

 (1) If:

 (a) a publication, film or computer game is unclassified; and

 (b) there is an approved classification tool for the publication, film or computer game; and

 (c) the approved classification tool is used to produce a decision, for the Australian Capital Territory, on the classification of the publication, film or computer game; and

 (d) the prescribed fee (if any) has been paid in relation to the decision;

the decision is taken, for the purposes of this Act, to be a decision of the Board to classify the publication, film or computer game.

 (2) The following provisions of this Act do not apply in relation to the decision:

 (a) Division 2 of Part 2 (other than section 21);

 (b) Division 5 of Part 2.

 (3) To avoid doubt, subsection (1) does not apply to a decision made by the operation of an approved classification tool if the decision does not comply with a condition to which the approval is subject under subsection 22CA(3).

 (4) The decision takes effect when it is included in:

 (a) the register, known as the National Classification Database, maintained by the Department; or

 (b) any replacement register.

 (5) Consumer advice for the publication, film or computer game (as the case may be) that is determined by the approved classification tool is taken to be consumer advice determined under section 20 by the Board for the publication, film or computer game (as the case may be).

Note: An approved classification tool must determine consumer advice: see paragraph 22CA(5)(b).

22CG  Approved classification tool certificates

 (1) If a publication, film or computer game (the classified material):

 (a) is classified; and

 (b) is taken to have been so classified by the Board because of the operation of section 22CF in relation to a decision of an approved classification tool;

a person may apply to the Director for a certificate (an approved classification tool certificate) for the classified material.

 (2) An application under subsection (1) must:

 (a) be in a form approved, in writing, by the Director; and

 (b) be accompanied by the prescribed fee (if any).

Note: For an applicant that is the Commonwealth, or a Commonwealth authority or agency: see section 91A.

 (3) On application under subsection (1), the Director must issue an approved classification tool certificate for the classified material.

 (4) The certificate must include the determined markings for the classification given to the classified material.

22CH  Revocation of classification by approved classification tool

Revocation of classification

 (1) If:

 (a) a decision made by the operation of an approved classification tool in relation to a publication, film or computer game (the relevant material) is taken (because of the operation of section 22CF) to be a decision of the Board to classify the relevant material; and

 (b) the Board is of the opinion that, had the relevant material been classified otherwise than because of the operation of that section, the Board would have:

 (i) given the relevant material a different classification; or

 (ii) determined different consumer advice for the material;

the Board may revoke the classification.

 (2) The Board may exercise the power under subsection (1):

 (a) on its own initiative; or

 (b) on application.

 (3) An application under paragraph (2)(b) must:

 (a) be in a form approved, in writing, by the Director; and

 (b) be made:

 (i) within 3 months after the day the decision made by the operation of the approved classification tool takes effect; or

 (ii) if another period is specified in a determination under subsection (8)—within that longer period; and

 (c) if a class of persons is specified in a determination under subsection (8)—be made by a person included in that class; and

 (d) be accompanied by the prescribed fee (if any).

Note: For when the decision made by the operation of the approved classification tool takes effect, see subsection 22CF(4).

Classification after revocation

 (4) If the Board decides to revoke the classification of relevant material under subsection (1), the Board must classify the relevant material.

 (5) A decision of the Board to classify the relevant material, as referred to in subsection (4), takes effect when it is included in either:

 (a) the register, known as the National Classification Database, maintained by the Department; or

 (b) any replacement register.

 (6) Subsection (5) has effect despite section 28 (when decisions take effect).

When revocation of classification takes effect

 (7) The revocation of the classification of relevant material under subsection (1) takes effect immediately before the decision to classify the material, as referred to in subsection (4), takes effect.

Ministerial determination

 (8) The Minister may, by legislative instrument, determine either or both of the following:

 (a) a specified period for the purposes of subparagraph (3)(b)(ii);

 (b) a specified class of persons for the purposes of paragraph (3)(c).

Subdivision D—Other

22CJ  Delegation by the Minister

 (1) The Minister may, by written instrument, delegate any or all of the Minister’s powers or functions under this Division, other than the Minister’s power to make guidelines for the purposes of subsection 22CA(4), to the Secretary of the Department.

 (2) In exercising powers or performing functions under a delegation, the Secretary must comply with any directions of the Minister.

5  Subsection 43(4)

After “must”, insert “, if practicable,”.

Schedule 2—Referral of material to law enforcement agencies

Classification (Publications, Films and Computer Games) Act 1995

1  After section 4

Insert:

4A  Concurrent operation of State and Territory laws

 (1) This Act is not intended to exclude or limit the concurrent operation of any law of a State or Territory.

 (2) Without limiting subsection (1), this Act is not intended to exclude or limit the concurrent operation of a law of a State or Territory that makes:

 (a) an act or omission that is an offence against a provision of this Act; or

 (b) a similar act or omission;

an offence against the law of the State or Territory.

 (3) Subsection (2) applies even if the law of the State or Territory does any one or more of the following:

 (a) provides for a penalty for the offence that differs from the penalty provided for in this Act;

 (b) provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Act;

 (c) provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Act.

2  After section 88A

Insert:

88B  Referral of certain unclassified material to law enforcement agencies

 (1) If the Secretary of the Department is of the opinion that an unclassified publication, unclassified film or unclassified computer game (the unclassified material) would, if classified, be likely to be classified RC, the Secretary may provide a copy of the unclassified material to:

 (a) the Australian Federal Police; or

 (b) the police force of a State or Territory; or

 (c) an authority or person responsible for law enforcement in a foreign country or a part of a foreign country.

 (2) The Secretary may, in writing, delegate his or her power under subsection (1) to a member of staff mentioned in section 88A.

 (3) Subsection (1) does not, by implication, limit any other power or function that the Secretary has to provide information or things to the bodies mentioned in that subsection, or to any other body.

Schedule 3—Exemptions

Part 1—Exempt films etc.

Classification (Publications, Films and Computer Games) Act 1995

1  Section 5

Insert:

social sciences has the meaning given by section 5C.

2  Subsection 5B(1) (table items 6 to 13)

After “wholly”, insert “or mainly”.

3  Subsection 5B(1) (at the end of the table)

Add:

4  After section 5B

Insert:

5C  Meaning of social sciences

 (1) For the purposes of this Act, social sciences means the following fields:

 (a) economics;

 (b) geography;

 (c) anthropology;

 (d) linguistics;

 (e) such other fields (if any) as are specified in an instrument under subsection (2).

 (2) The Minister may, by legislative instrument, specify fields for the purposes of paragraph (1)(e).

Part 2—Certificates for exempt films and computer games

Classification (Publications, Films and Computer Games) Act 1995

5  Section 5 (paragraph (j) of the definition of decision)

Omit “22B; or”, substitute “22B.”.

6  Section 5 (paragraphs (k) and (l) of the definition of decision)

Repeal the paragraphs.

7  Section 5 (definition of exempt computer game)

Omit “, and includes a game for which a certificate is in force under Division 6 of Part 2”.

8  Section 5 (definition of exempt film)

Omit “, and includes a film for which a certificate is in force under Division 6 of Part 2”.

9  Subsection 8(4)

Repeal the subsection.

10  Division 6 of Part 2

Repeal the Division.

11  Applications for certificates for exempt films or computer games

If:

 (a) a person has, before the commencement of this item, made an application under section 28A of the Classification (Publications, Films and Computer Games) Act 1995 for a certificate; and

 (b) the person has paid a fee in relation to the application; and

 (c) the Board has not made a decision in relation to the certificate before the commencement of this item;

the application is taken never to have been made and the Director must, on behalf of the Commonwealth, refund the application fee.

Part 3—Conditional cultural exemptions

Classification (Publications, Films and Computer Games) Act 1995

12  Section 5 (after paragraph (d) of the definition of advertisement)

Insert:

 (da) advertising for a particular demonstration, exhibition or screening of a publication, film or computer game, if the publication, film or computer game is subject to a conditional cultural exemption in relation to the demonstration, exhibition or screening; or

13  Section 5

Insert:

approved cultural institution: see section 6F.

conditional cultural exemption rules means rules made by the Minister under section 6G.

14  Section 5 (definition of exempt computer game)

Omit “section 5B”, substitute “section 6B”.

15  Section 5 (definition of exempt film)

Omit “section 5B”, substitute “section 6B”.

16  Section 5

Insert:

government body means:

 (a) a department of the Commonwealth, a State or a Territory; or

 (b) an agency or authority of the Commonwealth, a State or a Territory; or

 (c) a body established for the purposes of local government by or under a law applying in a State or Territory.

registered event: see section 6D.

subject to a conditional cultural exemption: for when a publication, film or computer game is subject to a conditional cultural exemption, see sections 6C and 6E.

17  Section 5B

Repeal the section.

18  After Part 1

Insert:

Part 1A—Exemptions etc.

Division 1—Exempt films and exempt computer games

6B  Exempt films and exempt computer games

 (1) Subject to subsection (3), a film specified in this table is an exempt film. Applications for classification of exempt films are not necessary.

 (2) Subject to subsection (3), a computer game is an exempt computer game if it forms part of or is included in computer software specified in this table. Applications for classification of exempt computer games are not necessary.

Exceptions

 (3) However, a film or computer game is not an exempt film or an exempt computer game if it contains:

 (a) an advertisement that has been refused approval; or

 (b) an advertisement for an unclassified film or an unclassified computer game:

 (i) that has been assessed in accordance with section 31 or under section 33 as being likely to be classified M or a higher classification; or

 (ii) the likely classification of which has not been assessed in accordance with section 31 or under section 33; or

 (c) an advertisement for a film, or for a computer game, that has been classified M or a higher classification; or

 (d) material that would be likely to cause the film or computer game to be classified M or a higher classification.

Division 2—Conditional cultural exemptions

6C  Conditional cultural exemptions—registered events

  If:

 (a) a publication, film or computer game (the relevant material) is demonstrated, exhibited or screened (the relevant showing) as part of a registered event; and

 (b) the relevant material, if it were classified, would not be likely to be classified RC, X 18+ or Category 2 restricted; and

 (c) in the case of relevant material that, if it were classified, would be likely to be classified M or MA 15+—persons aged under 15 years are not present at the relevant showing unless accompanied by an adult; and

 (d) in the case of relevant material that, if it were classified, would be likely to be classified R 18+ or Category 1 restricted—only persons aged 18 years and over are present at the relevant showing; and

 (e) the relevant material has not already been demonstrated, exhibited or screened more than the number of times specified in the conditional cultural exemption rules; and

 (f) the information, about the relevant material, that is prescribed by the conditional cultural exemption rules is given, in the manner and form prescribed by the conditional cultural exemption rules, to the persons present at the relevant showing; and

 (g) the conditions (if any) specified in the conditional cultural exemption rules are satisfied;

the relevant material is subject to a conditional cultural exemption, but only in relation to the relevant showing.

6D  Registered events

  An event is a registered event if:

 (a) the event wholly or mainly involves, or wholly or mainly relates to, one or more of the following:

 (i) the display or screening of films;

 (ii) the display or demonstration of computer games;

 (iii) the display or exhibition of publications; and

 (b) the films, computer games, or publications (as the case may be) referred to in paragraph (a) are of a medical, scientific, educational, cultural or artistic character; and

 (c) the event is organised by an organisation that has, in relation to the event, completed the registration process prescribed by the conditional cultural exemption rules; and

 (d) the organisation has, in relation to the event, paid the fee (if any) prescribed by the conditional cultural exemption rules; and

 (e) the conditions (if any) specified in the conditional cultural exemption rules are satisfied.

6E  Conditional cultural exemptions—approved cultural institutions

  If:

 (a) a publication, film or computer game (the relevant material) is demonstrated, exhibited or screened (the relevant showing) as part of an event organised by an approved cultural institution; and

 (b) the relevant material, if it were to be classified, would not be likely to be classified RC, X 18+ or Category 2 restricted; and

 (c) in the case of relevant material that, if it were classified, would be likely to be classified M or MA 15+—persons aged under 15 years are not present at the relevant showing unless accompanied by an adult; and

 (d) in the case of relevant material that, if it were classified, would be likely to be classified R 18+ or Category 1 restricted—only persons aged 18 years and over are present at the relevant showing; and

 (e) the information, about the relevant material, that is prescribed by the conditional cultural exemption rules is given, in the manner and form prescribed by the conditional cultural exemption rules, to the persons present at the relevant showing; and

 (f) the conditions (if any) specified in the conditional cultural exemption rules are satisfied;

the relevant material is subject to a conditional cultural exemption, but only in relation to the relevant showing.

6F  Approved cultural institutions

 (1) An organisation is an approved cultural institution if:

 (a) the organisation was formed wholly or mainly for the purpose of carrying on activities of an educational, cultural or artistic nature; and

 (b) the organisation wholly or mainly carries on activities of an educational, cultural or artistic nature; and

 (c) the organisation has a sound reputation in relation to the carrying on of those activities; and

 (d) the organisation does not demonstrate, exhibit or screen unclassified publications, films or computer games that, if classified, would be likely to be classified RC, X 18+ or Category 2 restricted; and

 (e) the organisation has satisfied the training requirements prescribed by the conditional cultural exemption rules; and

 (f) the organisation has paid the fee (if any) prescribed by the conditional cultural exemption rules; and

 (g) the conditions (if any) specified in the conditional cultural exemption rules are satisfied.

 (2) An organisation is an approved cultural institution if:

 (a) the organisation is a government body; and

 (b) the organisation does not demonstrate, exhibit or screen unclassified publications, films or computer games that, if classified, would be likely to be classified RC, X 18+ or Category 2 restricted; and

 (c) the organisation has satisfied the training requirements prescribed by the conditional cultural exemption rules; and

 (d) the organisation has paid the fee (if any) prescribed by the conditional cultural exemption rules; and

 (e) the conditions (if any) specified in the conditional cultural exemption rules are satisfied.

6G  Conditional cultural exemption rules

  The Minister may, by legislative instrument, make rules (the conditional cultural exemption rules) prescribing matters:

 (a) required or permitted by this Division to be prescribed by the conditional cultural exemption rules; or

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

6H  Modifications etc. in relation to this Division

 (1) The Director may, if the Director considers it appropriate to do so:

 (a) exempt a particular publication, film, computer game, event or organisation from any or all provisions of this Division or of the conditional cultural exemption rules; or

 (b) declare that any or all provisions of this Division or of the conditional cultural exemption rules apply subject to such modifications as are set out in the declaration in relation to a particular publication, film, computer game, event or organisation.

 (2) An exemption or declaration under subsection (1) may only be made on application by the relevant organisation.

 (3) An application under subsection (2) must:

 (a) be in a form approved, in writing, by the Director; and

 (b) be accompanied by the prescribed fee (if any).

 (4) An exemption or declaration under subsection (1):

 (a) must be in writing; and

 (b) is not a legislative instrument.

 (5) The Director may, by legislative instrument:

 (a) exempt a specified class of publications, films, computer games, events or organisations from any or all provisions of this Division or of the conditional cultural exemption rules; or

 (b) declare that any or all provisions of this Division or of the conditional cultural exemption rules apply subject to such modifications as are set out in the declaration in relation to a specified class of publications, films, computer games, events or organisations;

if the Director considers it appropriate to do so.

 (6) Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Director under subsection (1).

19  After paragraph 23(1)(b)

Insert:

 (c) if the publication is being published in the Australian Capital Territory—the publication is not subject to a conditional cultural exemption in relation to the publication;

20  After paragraph 23A(1)(b)

Insert:

 (c) if the film is being published in the Australian Capital Territory—the film is not subject to a conditional cultural exemption in relation to the publication;

21  After paragraph 24(1)(b)

Insert:

 (c) if the computer game is being published in the Australian Capital Territory—the computer game is not subject to a conditional cultural exemption in relation to the publication;

22  Subparagraph 53(b)(i)

Repeal the subparagraph.

Schedule 4—Modifications

Part 1—Amendments

Classification (Publications, Films and Computer Games) Act 1995

1  After section 20

Insert:

20A  Modifications of unclassified films and computer games that are later classified

 (1) If:

 (a) a film or computer game:

 (i) is modified; and

 (ii) is classified, in unmodified form, at a later time; and

 (b) the modification is of a kind covered by subsection (2);

the film or computer game, as modified, is taken from that later time to have the same classification as the classified film or classified computer game.

  (2) This subsection covers the following modifications:

 (a) including or removing an advertisement, other than an advertisement to which section 22 applies;

 (b) for a film—the addition or removal of navigation functions;

 (c) for a film—the addition or removal of material which:

 (i) provides a description or translation of the audio or visual content of the film; and

 (ii) would not be likely to cause the film, as modified, to be given a higher classification than the classified film;

 (d) a format change from 2D to 3D (or vice versa), if the format change would not be likely to cause the film or computer game, as modified, to be given a different classification to the classified film or classified computer game;

 (e) modifications of a kind prescribed in a legislative instrument made by the Minister for the purposes of this paragraph.

2  Subsection 21(1)

Omit “it”, substitute “the film or game, as modified,”.

3  After paragraph 21(2)(b)

Insert:

 (ba) a format change from 2D to 3D (or vice versa), if the format change would not be likely to cause the film or computer game, as modified, to be given a different classification to the classified film or classified computer game; or

4  At the end of section 21

Add:

 (3) Subsection (1) does not apply to a modification of a kind prescribed in a legislative instrument made by the Minister for the purposes of this subsection.

5  Paragraph 22CF(2)(a)

Omit “section 21”, substitute “sections 20A and 21”.

Part 2—Application of amendments

6  Amendments relating to modifications

(1) Section 20A of the Classification (Publications, Films and Computer Games) Act 1995, as inserted by this Schedule, applies in relation to films or computer games classified on or after 1 January 2013, regardless of when the film or computer game was modified.

(2) The amendments of section 21 of the Classification (Publications, Films and Computer Games) Act 1995 made by this Schedule apply in relation to films or computer games classified on or after 1 January 2013.

Schedule 5—Determined markings and consumer advice

Classification (Publications, Films and Computer Games) Act 1995

1  Section 5 (definition of determined markings)

Omit “section 8”, substitute “paragraph 8(1)(a)”.

2  Section 8 (heading)

Repeal the heading, substitute:

8  Determined markings and consumer advice

3  Subsections 8(1) and (1A)

Repeal the subsections, substitute:

 (1) The Minister may, by legislative instrument, determine:

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

 (b) principles relating to the display of the markings; and

 (c) principles relating to the display of consumer advice for publications, films and computer games.

 (1A) Without limiting paragraph (1)(b), the Minister may determine principles relating to the manner in which the markings are to be displayed.

 (1B) Without limiting paragraph (1)(c), the Minister may determine principles relating to the manner in which consumer advice is to be displayed.

4  After subsection 8(3)

Insert:

 (3A) Each of the following must display markings and consumer advice in accordance with any determinations under this section:

 (a) a classified film;

 (b) a classified computer game;

 (c) a classified publication;

 (d) an advertisement for such a film, computer game or publication.

Note: Provisions dealing with the consequences of not displaying markings and consumer advice in accordance with a determination under this section are to be found in complementary laws of the States and Territories.

 (3B) Subsection (3A) applies to:

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

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

(the relevant material) where:

 (c) the publisher of the relevant material is a constitutional corporation; or

 (d) the relevant material is published in the course of, or in relation to, constitutional trade or commerce; or

 (e) the relevant material is published in the course of, or in relation to, the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth; or

 (f) the relevant material is published using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution); or

 (g) the relevant material is published in a Territory or in a Commonwealth place.

5  Paragraphs 20(1)(a) and (b)

Before “PG”, insert “G,”.

6  Subsection 20(2)

Repeal the subsection, substitute:

 (2) If the Board classifies a publication Unrestricted, the Board may determine consumer advice giving information about the content of the publication.

7  Paragraph 25(2)(b)

Omit “any consumer advice”, substitute “the consumer advice”.

8  Application of amendments relating to consumer advice

The amendments of sections 20 and 25 of the Classification (Publications, Films and Computer Games) Act 1995 made by this Schedule apply in relation to publications, films and computer games classified after the commencement of this item, regardless of when the application for classification is made.

Schedule 6—Other amendments

Part 1—Amendments to the Classification Act

Classification (Publications, Films and Computer Games) Act 1995

1  Section 3

After “The”, insert “main”.

2  Section 5

Insert:

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

constitutional trade or commerce means trade or commerce:

 (a) between Australia and a place outside Australia; or

 (b) among the States; or

 (c) between a State and a Territory; or

 (d) within a Territory; or

 (e) between 2 Territories.

3  Section 5 (after paragraph (ia) of the definition of decision)

Insert:

 (ib) to revoke the classification of a computer game under section 21AC; or

4  After section 8

Insert:

8AA  Use of markings in relation to goods other than films etc.

Using a determined marking in relation to certain goods

 (1) A person commits an offence if:

 (a) the person, in trade or commerce, uses a marking in relation to goods; and

 (b) the marking is a determined marking; and

 (c) the goods are not:

 (i) a publication, film or computer game; or

 (ii) goods used to promote a publication, film or computer game that has the classification for that marking.

Penalty: 20 penalty units.

Using a determined marking in relation to certain services

 (2) A person commits an offence if:

 (a) the person, in trade or commerce, uses a marking in relation to a service; and

 (b) the marking is a determined marking; and

 (c) the service is not for the purposes of the classification system provided for by this Act or a corresponding law of a State or Territory.

Penalty: 20 penalty units.

Selling etc. certain goods with a determined marking

 (3) A person commits an offence if:

 (a) a determined marking is used in relation to goods; and

 (b) the person does any of the following with the goods:

 (i) imports them into Australia for sale;

 (ii) sells them;

 (iii) offers them for sale;

 (iv) lets them on hire; and

 (c) the goods are not:

 (i) a publication, film or computer game; or

 (ii) goods used to promote a publication, film or computer game that has the classification for that marking.

Penalty: 20 penalty units.

Extended meaning of determined marking

 (4) For the purposes of this section, a determined marking includes a marking so closely resembling a determined marking as to be likely to be mistaken for it.

Constitutional reach

 (5) This section has effect only if one or more of the following paragraphs applies:

 (a) the conduct constituting the offence occurs to any extent outside Australia;

 (b) the conduct constituting the offence occurs within a Territory or a Commonwealth place;

 (c) the goods belong to a constitutional corporation;

 (d) the person is a constitutional corporation;

 (e) the goods are provided in the course of, or intended for, constitutional trade or commerce;

 (f) the conduct constituting the offence is for the purposes of constitutional trade or commerce;

 (g) the conduct constituting the offence involves the use of postal, telegraphic, telephonic and other like services (within the meaning of paragraph 51(v) of the Constitution).

5  After subsection 14(4)

Insert:

 (4A) Subsection (4) does not apply to an application for the classification of a film if the application is made only because the film became unclassified under section 21 because of a modification that consists only of a change to the title of the film.

6  Subsection 14(7)

Omit all the words from and including “to the applicant”, substitute “to the applicant stating the particulars of the disagreement”.

7  At the end of section 14

Add:

 (8) If any of the following paragraphs applies in relation to the film, the notice under subsection (7) must also invite 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:

 (a) if the film includes one classified film—the Director or the Board is of the opinion that the film would, if classified, be classified at a higher classification than the classified film;

 (b) if the film includes more than one classified film—the Director or the Board is of the opinion that the film would, if classified, be classified at a higher classification than the classified film with the highest classification;

 (c) the film does not include a classified film.

8  Paragraph 14B(1)(c)

Omit “one of the episodes of the television series film”, substitute “one episode of the television series”.

9  After subsection 14B(1)

Insert:

 (1A) The episode referred to in paragraph (1)(c) need not be included in the television series film.

10  After subsection 17(2)

Insert:

 (2AA) Subsection (2) does not apply to an application for the classification of a computer game if the application is made only because the computer game became unclassified under section 21 because of a modification that consists only of a change to the title of the computer game.

11  Subsection 17(3)

Repeal the subsection, substitute:

 (3) If:

 (a) the applicant is of the opinion that the game would, if classified, be classified G, PG or M; and

 (b) a notice under section 17C is not in force in relation to the applicant;

the applicant may also submit with the application:

 (c) 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; and

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

 (3A) An assessment under subsection (3) must:

 (a) describe, and report on the impact of, any classifiable elements in the game; and

 (b) recommend a classification of the game; and

 (c) recommend consumer advice appropriate to the game.

12  After subsection 17(5)

Insert:

 (6) The Director must not authorise a person for the purposes of subsection (3) if a notice under section 17B is in force in relation to the person.

13  After section 17

Insert:

17A  Revocation of authorisation to assess certain computer games

 (1) The Director may revoke an authorisation given to a person for the purpose of subsection 17(3) if the Director is satisfied that one or more of the conditions mentioned in subsection (2) apply to the person.

 (2) The conditions are as follows:

 (a) the person has prepared an assessment of a computer game that contains classifiable elements that:

 (i) were not brought to the Board’s attention in accordance with paragraph 17(3A)(a) before the classification was made; or

 (ii) were brought to the Board’s attention in accordance with paragraph 17(3A)(a) before the classification was made but the assessment of the elements was misleading, incorrect or grossly inadequate;

 (b) if the Director has requested that the person complete further training approved by the Director in the making of assessments of computer games—the person has not completed the training;

 (c) the person has prepared at least 2 assessments under subsection 17(3) which contain misleading, incorrect or grossly inadequate information;

 (d) any other conditions prescribed by the regulations.

Note:  The regulations may prescribe circumstances in which an assessment is taken to be misleading, incorrect or grossly inadequate, or to contain misleading, incorrect or grossly inadequate information: see subsection 93(2).

17B  Barring notice to assessors of certain computer games

 (1) The Director may give a written notice to a person if the Director is satisfied that:

 (a) both of the following apply:

 (i) the Board classified a computer game taking into account an assessment of the computer game prepared by the person;

 (ii) the Board has revoked the classification of the game under section 21A or 21AC; or

 (b) the person has prepared at least 2 assessments under subsection 17(3) which contain misleading, incorrect or grossly inadequate information.

Note 1: If the Director gives a notice to a person under this subsection, the person cannot be authorised to prepare assessments of computer games while the notice remains in force: see subsection 17(6).

Note 2: The regulations may prescribe circumstances in which an assessment is taken to contain misleading, incorrect or grossly inadequate information: see subsection 93(2).

 (2) The notice takes effect from the date specified in the notice and continues in force for the period specified in the notice. The period must not exceed 3 years.

17C  Barring notice to applicant for classification of computer games

 (1) The Director may give a written notice to a person if:

 (a) the person has submitted at least 2 applications that were accompanied by assessments under subsection 17(3); and

 (b) the assessments contained misleading, incorrect or grossly inadequate information; and

 (c) as a result of those assessments, the Director revoked the authorisation of the person who prepared them (see section 17A).

Note 1: If the Director gives a notice to a person under this subsection, the person cannot submit an assessment of a computer game with an application for classification of the game while the notice remains in force: see subsection 17(3).

Note 2: The regulations may prescribe circumstances in which an assessment is taken to contain misleading, incorrect or grossly inadequate information: see subsection 93(2).

 (2) The notice takes effect from the date specified in the notice and continues in force for the period specified in the notice. The period must not exceed 3 years.

17D  Review by AAT

  Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Director under section 17A, 17B or 17C.

14  After section 21AB

Insert:

21AC  Revocation of classification of computer games if assessment misleading etc.

  The Board must revoke the classification of a computer game that has been classified taking into account an assessment prepared under subsection 17(3) if the Board is satisfied that:

 (a) the computer game contains any classifiable elements that:

 (i) were not brought to the Board’s attention in accordance with paragraph 17(3A)(a) before the classification was made; or

 (ii) were brought to the Board’s attention in accordance with paragraph 17(3A)(a) before the classification was made but the assessment of the elements was misleading, incorrect or grossly inadequate; and

 (b) if the Board had been aware of the matters mentioned in subparagraph (a)(i) or (ii) before the classification was made, it would have given the game a different classification.

Note: The regulations may prescribe circumstances in which an assessment is taken to be misleading, incorrect or grossly inadequate: see subsection 93(2).

15  Section 38

Repeal the section, substitute:

38  Limit on reclassification

 (1) If a publication, a film or a computer game is classified, the Board must not reclassify the publication, film or computer game within the period of 2 years commencing on the day the decision to classify took effect.

 (2) If an advertisement is approved or refused approval, the Board must not approve or refuse to approve the advertisement within the period of 2 years commencing on the day the decision to approve or refuse to approve the advertisement took effect.

16  Subsection 39(1)

Omit “the Board may”, substitute “the Minister may request that the Board”.

17  Subsection 39(2)

Repeal the subsection.

18  Section 40 (heading)

Repeal the heading, substitute:

40  Notice of request to reclassify etc.

19  Subsection 40(1)

Repeal the subsection, substitute:

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

20  Paragraph 46(c)

Repeal the paragraph.

21  After subsection 48(1)

Insert:

 (1A) The Governor‑General may appoint one or more members referred to in paragraph 46(d) to be Senior Classifiers.

22  Subsection 49(1)

Omit “, the Deputy Director and the Senior Classifiers”, substitute “and the Deputy Director”.

23  Before section 87

Insert:

86  Immunity from suit

  Criminal or civil proceedings do not lie against the following persons:

 (a) a member of the Board;

 (b) a member of the Review Board;

 (c) a member of staff assisting the Board or the Review Board;

in relation to anything done, or omitted to be done, in good faith by the person in connection with the performance or purported performance of functions or duties, or the exercise or purported exercise of powers, conferred by this Act.

24  Subsections 91(1) to (2)

Repeal the subsections, substitute:

Fee waiver on application

 (1) The Minister may, on written application, waive all or part of the payment of fees payable, or notionally payable, in respect of an application under this Act if:

 (a) in the Minister’s opinion it is in the public interest to do so for public health or educational reasons; or

 (b) the body that would be liable, or notionally liable, for the fee is:

 (i) the Commonwealth, a State or a Territory (or an authority of one of those bodies); or

 (ii) an entity that is registered under the Australian Charities and Not‑for‑profits Commission Act 2012; or

 (iii) a not‑for‑profit entity that is not an ACNC type of entity; or

 (c) the payment is for special interest material having a limited distribution that is:

 (i) wholly or mainly a documentary record of an event; or

 (ii) of a cultural or like nature; or

 (iii) a short film from a new or emerging film maker;

  and, in the Minister’s opinion, it is in the public interest to do so.

Notice of decision

 (2) The Minister must, within 28 days after making a decision under subsection (1), notify the applicant in writing of the decision and of the reasons for the decision.

25  Subsection 91(5)

Repeal the subsection, substitute:

Review by AAT

 (5) Applications may be made to the Administrative Appeals Tribunal for review of decisions under subsection (1).

Delegation

 (6) The Minister may, in writing, delegate his or her power to waive fees to:

 (a) the Secretary of the Department; or

 (b) an SES employee, or acting SES employee, in the Department.

26  Before paragraph 93(2)(a)

Insert:

 (aa) for the purposes of paragraphs 17A(2)(c), 17B(1)(b) and 17C(1)(b)—circumstances in which an assessment of a computer game is taken to contain misleading, incorrect or grossly inadequate information; and

27  Paragraph 93(2)(a)

Omit “21AA(a)(ii) and 22E(2)(a)(ii)”, substitute “17A(2)(a)(ii), 21AA(a)(ii), 21AC(a)(ii) and 22E(2)(a)(ii)”.

28  Section 100

Repeal the section.

Part 2—Amendments to the Broadcasting Services Act

Broadcasting Services Act 1992

29  Subclauses 28(1) and (2) of Schedule 7

Repeal the subclauses, substitute:

 (1) If content has been classified by the Classification Board (otherwise than because of subclause 24(1) or (2)), the Classification Board must not reclassify the content within the 2‑year period beginning on the day the decision to classify took effect.

 (2) After that 2‑year period, any of the following may request that the Classification Board reclassify the content:

 (a) the Minister;

 (b) the ACMA;

 (c) if another person applied, under clause 22, for classification of the content—the other person.

30  Subclause 28(3) of Schedule 7

Omit “required to act under paragraph (1)(b)”, substitute “requested to act under subsection (2)”.

Part 3—Application and saving provisions

31  Amendment relating to use of determined markings

Section 8AA of the Classification (Publications, Films and Computer Games) Act 1995, as inserted by this Schedule, applies in relation to conduct engaged in after the commencement of this item.

32  Amendments relating to contentious material statements

Subsections 14(4A) and 17(2AA) of the Classification (Publications, Films and Computer Games) Act 1995, as inserted by this Schedule, apply in relation to applications for classification made after the commencement of this item.

33  Amendments relating to additional content

(1) The amendment of subsection 14(7) of the Classification (Publications, Films and Computer Games) Act 1995 made by this Schedule applies in relation to applications for classification made after the commencement of this item.

(2) Subsection 14(8) of the Classification (Publications, Films and Computer Games) Act 1995, as inserted by this Schedule, applies in relation to applications for classification made after the commencement of this item.

34  Amendments relating to applications for television series films

The amendments of section 14B of the Classification (Publications, Films and Computer Games) Act 1995 made by this Schedule apply in relation to applications for classification made after the commencement of this item.

35  Amendment relating to computer games

The amendment of subsection 17(3) of the Classification (Publications, Films and Computer Games) Act 1995 made by this Schedule applies in relation to applications for classification made after the commencement of this item.

36  Amendments relating to assessors of computer games

(1) Subsections 17A and 17B of the Classification (Publications, Films and Computer Games) Act 1995, as inserted by this Schedule, apply in relation to a person authorised for the purposes of subsection 17(3) of that Act whether the person became authorised for that purpose before or after the commencement of this item.

(2) Subitem (3) applies to a person who was authorised by the Director for the purposes of subsection 17(3) of the Classification (Publications, Films and Computer Games) Act 1995 immediately before the commencement of this item.

(3)  Despite the amendment made by item 11, the person continues, immediately after that commencement, to be a person authorised for that purpose.

37  Amendments relating to date of classification decision

(1) The amendment of section 38 of the Classification (Publications, Films and Computer Games) Act 1995 made by this Schedule applies in relation to:

 (a) publications, films and computer games classified before or after the commencement of this item; and

 (b) advertisements approved or refused approval before or after that commencement.

(2) Subclause 28(1) of Schedule 7 to the Broadcasting Services Act 1992, as substituted by this Schedule, applies in relation to content classified before or after the commencement of this item.

38  Amendments relating to reclassification

(1) The amendments of sections 39 and 40 of the Classification (Publications, Films and Computer Games) Act 1995 made by this Schedule do not apply to actions of the Board taken at the request of the Minister, or on its own initiative, before the commencement of this item.

(2) If, before the commencement of this item, the Classification Board had started to take action under paragraph 28(1)(b) of Schedule 7 to the Broadcasting Services Act 1992, the Classification Board may continue to take that action despite the amendment of clause 28 of Schedule 7 to that Act made by this Schedule.

39  Amendment relating to immunity

Section 86 of the Classification (Publications, Films and Computer Games) Act 1995, as inserted by this Schedule, applies in relation to things done, or omitted to be done, before or after the commencement of this item.

40  Amendments relating to fee waiver

The amendments of section 91 of the Classification (Publications, Films and Computer Games) Act 1995 made by this Schedule apply in relation to applications made after commencement of this item.

Schedule 7—Simplified outlines

Classification (Publications, Films and Computer Games) Act 1995

1  After section 3

Insert:

3A  Simplified outline of this Act

Note: This Act is part of a national scheme, and there is complementary legislation in all States and Territories. Under the complementary legislation, some publications and most films and computer games must be classified before they can be legally made available to the public.

2  Before Division 1 of Part 1A

Insert:

Division 1A—Preliminary

6AA  Simplified outline of this Part

3  Before section 7

Insert:

6J  Simplified outline of this Part

4  Before Division 1 of Part 3

Insert:

Division 1A—Preliminary

28D  Simplified outline of this Part

5  Before section 38

Insert:

37  Simplified outline of this Part

6  Before section 42

Insert:

41A  Simplified outline of this Part

7  Before Division 1 of Part 6

Insert:

Division 1A—Preliminary

44C  Simplified outline of this Part

This Part establishes the Classification Board and deals with administrative matters associated with it, such as membership and procedures.

8  Before Division 1 of Part 7

Insert:

Division 1A—Preliminary

71  Simplified outline of this Part

This Part establishes the Classification Review Board and deals with administrative matters associated with it, such as membership and procedures.

9  Before section 87

Insert:

86  Simplified outline of this Part

This Part deals with miscellaneous matters, such as waiver of fees and regulations.

10  Before section 94

Insert:

93A  Simplified outline of this Part

This Part contains transitional provisions relating to the Customs (Cinematograph Films) Regulations.

11  After section 98A

Insert:

98B  Simplified outline of this Part

[Minister’s second reading speech made in—

House of Representatives on 19 March 2014

Senate on 26 March 2014]