2004-2005-2006-2007 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time Classification (Publications, Films and Computer Games) Amendment (Advertising and Other Matters) Bill 2007 No. , 2007 (Attorney-General) A Bill for an Act to amend the Classification (Publications, Films and Computer Games) Act 1995, and for related purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedule(s) ........................................................................................ 2 Schedule 1--Amendments relating to advertising 3 Classification (Publications, Films and Computer Games) Act 1995 3 Schedule 2--Amendments relating to films of television series 10 Classification (Publications, Films and Computer Games) Act 1995 10 [Page Break] 1 (Publications, Films and Computer Games) Act 1995, 2 and for related purposes 3 The Parliament of Australia enacts: 4 1 Short title 5 This Act may be cited as the Classification (Publications, Films 6 and Computer Games) Amendment (Advertising and Other 7 Matters) Act 2007. 8 2 Commencement 9 (1) Each provision of this Act specified in column 1 of the table 10 commences, or is taken to have commenced, in accordance with 11 column 2 of the table. Any other statement in column 2 has effect 12 according to its terms. 13 Classification (Publications, Films and Computer Games) Amendment (Advertising and Other Matters) Bill 2007 No. , 2007 1 [Page Break] Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedule 1 A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence 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. 3. Schedule 2 A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 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. Note: This table relates only to the provisions of this Act as originally 2 passed by both Houses of the Parliament and assented to. It will not be 3 expanded to deal with provisions inserted in this Act after assent. 4 (2) Column 3 of the table contains additional information that is not 5 part of this Act. Information in this column may be added to or 6 edited in any published version of this Act. 7 3 Schedule(s) 8 Each Act that is specified in a Schedule to this Act is amended or 9 repealed as set out in the applicable items in the Schedule 10 concerned, and any other item in a Schedule to this Act has effect 11 according to its terms. 12 [Page Break] Schedule 1--Amendments relating to 2 advertising 3 4 Classification (Publications, Films and Computer Games) 5 Act 1995 6 1 Section 5 (paragraph (c) of the definition of advertisement) 7 Repeal the paragraph, substitute: 8 (c) advertising on the Internet; 9 2 Section 5 (at the end of the definition of advertisement) 10 Add: 11 ; or (g) advertising by means of a product: 12 (i) that refers to or is derived from the publication, film or 13 computer game; and 14 (ii) that is primarily intended to be sold or distributed to the 15 general public or to a section of the general public; and 16 (iii) that a reasonable person would not consider to be a 17 primary source of classification information for 18 consumers about the publication, film or computer 19 game. 20 3 Section 5 (paragraph (d) of the definition of decision) 21 Repeal the paragraph, substitute: 22 (d) to assess or refuse to assess the likely classification of an 23 unclassified film or an unclassified computer game; or 24 (da) to revoke an assessment of the likely classification of an 25 unclassified film or an unclassified computer game; or 26 4 Paragraph 5B(3)(b) 27 Repeal the paragraph, substitute: 28 (b) an advertisement for an unclassified film or an unclassified 29 computer game: 30 (i) that has been assessed in accordance with section 31 or 31 under section 33 as being likely to be classified M or a 32 higher classification; or 33 [Page Break] 1 in accordance with section 31 or under section 33; or 2 5 Subsection 22(1) 3 Repeal the subsection, substitute: 4 (1) An unclassified film (the first film) or unclassified computer game 5 (the first game) must not be classified if it contains an 6 advertisement: 7 (a) for a film or computer game with a higher classification than 8 the classification the first film or first game would be given if 9 it did not contain the advertisement; or 10 (b) for an unclassified film or unclassified computer game: 11 (i) that has been assessed in accordance with section 31 or 12 under section 33 as being likely to have a higher 13 classification than the classification the first film or first 14 game would be given if it did not contain the 15 advertisement; or 16 (ii) the likely classification of which has not been assessed 17 in accordance with section 31 or under section 33; or 18 (c) that has been refused approval. 19 6 Part 3 (heading) 20 Repeal the heading, substitute: 21 Part 3--Advertising 22 7 Subsections 29(6) and (7) 23 Repeal the subsections, substitute: 24 (6) The Board must refuse to approve an advertisement for: 25 (a) a film or computer game that has been classified RC; or 26 (b) an unclassified film or unclassified computer game that, if 27 classified, would be likely to be classified RC. 28 8 Subsection 30(1)(b) 29 Omit "classified". 30 9 Division 2 of Part 3 31 [Page Break] 1 Division 2--Advertising of unclassified films and 2 unclassified computer games 3 Subdivision A--Scheme relating to advertising 4 31 Scheme for advertising may be determined by legislative 5 instrument 6 (1) The Minister may, by legislative instrument, determine a scheme 7 for the advertising of unclassified films and unclassified computer 8 games including, but not limited to, the following: 9 (a) specifying conditions on which unclassified films and 10 unclassified computer games may be advertised; 11 (b) providing for requirements relating to self-assessment by 12 industry of the likely classification of unclassified films and 13 unclassified computer games. 14 (2) The conditions on which unclassified films and unclassified 15 computer games may be advertised include, but are not limited to, 16 conditions in relation to the following: 17 (a) messages that must be displayed on or in relation to the 18 advertising of an unclassified film or an unclassified 19 computer game; 20 (b) the circumstances in which an unclassified film or an 21 unclassified computer game may be advertised with a 22 classified film or game (including circumstances relating to 23 the likely classification of the film or computer game); 24 (c) the time within which messages on or in relation to an 25 advertisement for an unclassified film or an unclassified 26 computer game must be changed after the film or computer 27 game is classified; 28 (d) a condition that an unclassified film or an unclassified 29 computer game may not be advertised by a person in respect 30 of whom a barring notice of a kind mentioned in 31 paragraph (3)(d) is in force. 32 (3) Without limiting subsection (1), the scheme may: 33 [Page Break] 1 of the likely classifications of unclassified films or 2 unclassified computer games; and 3 (b) specify the requirements for authorisation of a kind 4 mentioned in paragraph (a), and for continued authorisation 5 (including the circumstances in which such authorisation may 6 be revoked or suspended); and 7 (c) specify the basis on which an authorised person may make, 8 amend or revoke assessments of the likely classification of 9 unclassified films or unclassified computer games; and 10 (d) provide for a notice system that empowers the Director to 11 give a notice (a barring notice) to a particular person in 12 specified circumstances (including circumstances that relate 13 to whether the Director is satisfied as to a matter or matters); 14 and 15 (e) specify the effect of a barring notice, which may include but 16 is not limited to providing that a person in respect of whom a 17 barring notice is in force may not be authorised to make 18 assessments of the likely classifications of unclassified films 19 or unclassified computer games; and 20 (f) provide for review by the Administrative Appeals Tribunal of 21 decisions under the scheme; and 22 (g) confer functions and powers on the Board or the Director in 23 relation to and for the purposes of the scheme; and 24 (h) provide for administrative matters, such as the making of 25 applications and the giving of notices. 26 (4) The scheme may specify the circumstances in which an 27 unclassified film or an unclassified computer game may not be 28 advertised. 29 (5) The Minister must consult with participating Ministers before 30 making a determination under subsection (1). 31 (6) A determination under subsection (1) must not be such as to permit 32 the advertisement of a film or computer game that, if the film or 33 computer game were classified, would be likely to be classified RC 34 or X 18+. 35 [Page Break] 1 unclassified films and unclassified computer games 2 32 Person may apply for assessment of likely classification of 3 unclassified film or unclassified computer game 4 (1) A person who is, or proposes to be, the distributor, exhibitor or 5 publisher of an unclassified film or an unclassified computer game 6 may apply to the Board for an assessment of the likely 7 classification of the film or computer game for the purpose of 8 advertising the film or computer game. 9 (2) The application must: 10 (a) be in writing; and 11 (b) be in a form approved in writing by the Director; and 12 (c) be signed; and 13 (d) include any information, statements, explanations or other 14 matters required by the form; and 15 (e) be accompanied by any other relevant material required by 16 the form; and 17 (f) be accompanied by the prescribed fee. 18 33 Board may assess likely classification of film or computer game 19 (1) This section applies if an application has been made under 20 section 32 for the assessment of the likely classification of an 21 unclassified film or an unclassified computer game. 22 (2) The Board may assess the classification that, in the opinion of the 23 Board, the film or computer game would be likely to have if the 24 film or computer game were classified, having regard to the 25 material and information available to the Board when making the 26 assessment. 27 (3) The Board may refuse to assess the likely classification of the film 28 or computer game if the Board considers that the material and 29 information available to the Board is insufficient (whether or not 30 the Board has made a request under subsection (4)). 31 (4) The Board may request the applicant to give to the Board, within 32 the period specified in the request, further information for the 33 purpose of enabling the Board to deal with the application. 34 [Page Break] 1 further deal with the application, until the information is given to 2 the Board in accordance with the request. 3 (6) To avoid doubt, this section does not require the Board to obtain 4 further information under subsection (4) for the purposes of the 5 Board's assessment. 6 (7) An assessment made under subsection (2) is not a legislative 7 instrument. 8 34 Revocation of assessments 9 (1) If, after making an assessment under section 33 of the likely 10 classification of an unclassified film or an unclassified computer 11 game, but before the film or computer game is classified, the Board 12 is of the opinion that: 13 (a) the film or computer game contains, or will contain, material 14 of which the Board was unaware when the Board made the 15 assessment; and 16 (b) if the Board had been aware of the material before making 17 the assessment, it would have assessed the film or computer 18 game as likely to have a higher classification; 19 the Board must revoke the assessment, and must also revoke the 20 approval of any approved advertisement for the film or game. 21 (2) The Board must revoke an assessment under section 33 of the 22 likely classification of a film or computer game, and must also 23 revoke the approval of any approved advertisement for the film or 24 game, if the applicant for the assessment makes a written request 25 that the Board do so. 26 (3) The revocation of an assessment or approved advertisement takes 27 effect: 28 (a) when written notice of the decision to revoke is given under 29 section 35 to the applicant concerned; or 30 (b) if a later day is specified in the instrument of revocation--on 31 that later day. 32 [Page Break] 1 The Board must give written notice of a decision under section 33 2 or 34 to the applicant for the assessment or advertisement 3 concerned as soon as practicable but not later than 30 days after the 4 making of the decision. 5 10 Paragraph 42(1)(b) 6 After "game concerned", insert ", the applicant for assessment under 7 section 33 of the likely classification of the unclassified film or 8 unclassified computer game concerned,". 9 11 Subsection 87A(1)(b) 10 Insert: 11 or (c) an application for an assessment of the likely classification of 12 an unclassified film or an unclassified computer game; 13 12 Paragraph 97(c) 14 Repeal the paragraph. 15 13 Transitional regulations 16 (1) The Governor-General may make regulations providing for matters of a 17 transitional nature in relation to the advertising of unclassified films that 18 have been granted a certificate of exemption. 19 (2) In this item: 20 certificate of exemption means a certificate of exemption granted by the 21 Board under section 33 of the Classification (Publications, Films and 22 Computer Games) Act 1995, as in force before its repeal by item 9 of 23 this Schedule. 24 [Page Break] Schedule 2--Amendments relating to films of 2 television series 3 4 Classification (Publications, Films and Computer Games) 5 Act 1995 6 1 Section 5 7 Insert: 8 authorised television series assessor means a person authorised in 9 accordance with the scheme determined under section 14B to 10 prepare assessments of films comprising one or more episodes of a 11 television series. 12 2 Before section 15 13 Insert: 14 14B Applications for films comprising previously broadcast 15 television series 16 (1) If: 17 (a) an application is made for classification of a film that 18 comprises one or more episodes of a television series; and 19 (b) each of the episodes has, before the making of the 20 application, been broadcast in Australia on a national 21 broadcasting service, a commercial broadcasting service, a 22 subscription broadcasting service or a community 23 broadcasting service; and 24 (c) the applicant is of the opinion that the film would, if 25 classified, be classified at a particular classification that is R 26 18+ or a lower classification; 27 the applicant may also submit with the application an assessment 28 of the film prepared in accordance with subsection (2). 29 (2) An assessment of a kind referred to in subsection (1) must: 30 (a) satisfy the requirements specified in the scheme determined 31 by the Minister under subsection (3); and 32 (b) be prepared by an authorised television series assessor; and 33 [Page Break] 1 (3) The Minister may, by legislative instrument, determine a scheme 2 relating to the assessment of films that comprise one or more 3 episodes of a television series. 4 (4) A scheme under subsection (3) may do the following: 5 (a) specify the requirements for assessments of films that 6 comprise one or more episodes of a television series; 7 (b) specify the basis on which assessments of films that comprise 8 one or more episodes of a television series are to be made; 9 (c) specify requirements for the authorisation of persons as 10 authorised television series assessors under the scheme and 11 for continued authorisation (including the circumstances in 12 which such authorisation may be revoked or suspended); 13 (d) provide for a notice system that empowers the Director to 14 give a notice (a barring notice) to a particular person in 15 specified circumstances (including circumstances that relate 16 to whether the Director is satisfied as to a matter or matters); 17 (e) specify the effect of a barring notice, which may include but 18 is not limited to the following: 19 (i) providing that a person in respect of whom a barring 20 notice is in force may not be authorised to make 21 assessments of films that comprise one or more episodes 22 of a television series; 23 (ii) providing that a person in respect of whom a barring 24 notice is in force may not submit an application for 25 classification under subsection (1); 26 (f) provide for review by the Administrative Appeals Tribunal of 27 decisions under the scheme; 28 (g) confer functions and powers on the Board or the Director in 29 relation to and for the purposes of the scheme; 30 (h) provide for administrative matters, such as the making of 31 applications and the giving of notices; 32 (i) specify circumstances in which an assessment is taken to be 33 misleading, incorrect or grossly inadequate for the purposes 34 of section 21AB (without limiting those circumstances). 35 (5) The Minister must consult with participating Ministers before 36 determining a scheme under subsection (3). 37 [Page Break] 1 commercial broadcasting service has the same meaning as in the 2 Broadcasting Services Act 1992. 3 community broadcasting service has the same meaning as in the 4 Broadcasting Services Act 1992. 5 national broadcasting service has the same meaning as in the 6 Broadcasting Services Act 1992. 7 subscription broadcasting service has the same meaning as in the 8 Broadcasting Services Act 1992. 9 3 Before section 22 10 Insert: 11 21AB Revocation of classification of films 12 The Board must revoke the classification of a film that has been 13 classified taking into account an assessment prepared by an 14 authorised television series assessor under section 14B if the Board 15 is satisfied that: 16 (a) the assessment was misleading, incorrect or grossly 17 inadequate; and 18 (b) if the Board had been aware of the respects in which the 19 assessment was misleading, incorrect or grossly inadequate 20 before the classification was made, it would have given the 21 film a different classification. 22 Note: The Minister's determination under section 14B may prescribe 23 circumstances in which an assessment is taken to be misleading, 24 incorrect or grossly inadequate. 25 4 Application of amendments 26 The amendments made by this Schedule apply to applications for 27 classification of films made on or after the commencement of this 28 Schedule. 29