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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Classification (Publications, Films and
Computer Games) Enforcement
Amendment Bill 2001
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Classification (Publications, Films and
Computer Games) Enforcement Act 1995 No 63 2
4 Amendment of Fines Act 1996 No 99 2
Schedules
1 General amendments 3
2 Amendments relating to on-line services 15
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2001
New South Wales
Classification (Publications, Films and
Computer Games) Enforcement
Amendment Bill 2001
Act No , 2001
An Act to amend the Classification (Publications, Films and Computer Games)
Enforcement Act 1995 to make further provision with respect to the enforcement
of a classification scheme for publications, films and computer games; to create
certain offences relating to on-line services; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill as
finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Classification (Publications, Films and Computer Games) Enforcement
Amendment Bill 2001
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Classification (Publications, Films and Computer
Games) Enforcement Amendment Act 2001.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Classification (Publications, Films and Computer
Games) Enforcement Act 1995 No 63
The Classification (Publications, Films and Computer Games)
Enforcement Act 1995 is amended as set out in Schedules 1 and 2.
4 Amendment of Fines Act 1996 No 99
Schedule 1 to the Fines Act 1996 is amended by inserting the
following in alphabetical order:
Classification (Publications, Films and Computer Games)
Enforcement Act 1995, section 61A
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Classification (Publications, Films and Computer Games) Enforcement
Amendment Bill 2001
General amendments Schedule 1
Schedule 1 General amendments
(Section 3)
[1] Section 4 Definitions
Insert in alphabetical order in section 4 (1):
exempt computer game has the same meaning as in the
Commonwealth Act. (see note at the end of this section)
exempt film has the same meaning as in the Commonwealth
Act. (see note at the end of this section)
international flight, in relation to an aircraft, means a flight
that passes through the air space over the territory of more than
one country and includes any part of the flight that may occur
within Australia.
international voyage, in relation to a vessel, means a voyage,
whether direct or indirect, between a place in Australia and a
place outside Australia and includes any part of the voyage that
may occur within Australia.
Review Board means the Classification Review Board
established by the Commonwealth Act.
[2] Section 4 (1), definition of "place"
Omit the definition. Insert instead:
place includes any vacant land, premises, vehicle, vessel or
aircraft (except a vessel on an international voyage or an
aircraft on an international flight).
[3] Section 4 (2)
Insert in alphabetical order in the note to the section:
exempt computer game has the meaning given by section 5B, and
includes a film for which a certificate is in force under Division 6 of Part 2.
exempt film has the meaning given by section 5B, and includes a film for
which a certificate is in force under Division 6 of Part 2.
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Classification (Publications, Films and Computer Games) Enforcement
Amendment Bill 2001
Schedule 1 General amendments
[4] Section 4 (2)
Insert at the end of the note to the section:
Section 5B of the Commonwealth Act includes tables specifying films that
are exempt films and computer games that are exempt computer games,
respectively. They include business, accounting, professional, scientific,
educational, current affairs, hobbyist, sporting, family, live performance,
musical presentation, religious and community or cultural films and
business, accounting, professional, scientific and educational computer
games. A film is not an exempt film if it contains material that would be
likely to cause it to be classified M or higher (that is, it must fall within the
G or PG classification). A computer game is not an exempt computer
game if it contains material that would be likely to cause it to be classified
M (15+) or higher. Films and computer games are also not exempt if they
contain an advertisement for an unclassified film or computer game, an
advertisement that has been refused approval or an advertisement for a
film or computer game classified M or MA (15+), respectively, or higher.
Under Division 6 of Part 2 of the amended Commonwealth Act, the
Classification Board can also issue certificates stating that unclassified
films and computer games are exempt films or computer games.
[5] Section 4A
Insert after section 4:
4A Application of Act
This Act does not apply to:
(a) exempt films or exempt computer games, or
(b) broadcasting services to which the Broadcasting
Services Act 1992 of the Commonwealth applies.
[6] Section 15 Films to display determined markings and consumer advice
Omit section 15 (4). Insert instead:
(4) If:
(a) a film is reclassified under section 39 or 97A of the
Commonwealth Act, or
(b) the Board revokes a classification or consumer advice
for a film under section 22B (3) of that Act,
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Classification (Publications, Films and Computer Games) Enforcement
Amendment Bill 2001
General amendments Schedule 1
display of the determined markings and consumer advice
applicable to the film before that reclassification or revocation
is sufficient compliance with this section for a period of 30
days after the decision to reclassify or revoke takes effect.
[7] Section 20 Category 1 restricted publications
Omit "A" from section 20 (1).
Insert instead "Subject to subsection (1A), a".
[8] Section 20 (1A)
Insert after section 20 (1):
(1A) Subject to any condition imposed by the Board under section
13A (2) of the Commonwealth Act, if the sale or delivery takes
place in a restricted publications area, the package need not be
sealed but on delivery must be contained in an opaque wrapper.
[9] Section 20 (2)
Omit the subsection. Insert instead:
(2) If:
(a) a publication is reclassified under section 39 or 97A of
the Commonwealth Act, or
(b) the Board revokes a classification for a publication
under section 22B (3) of that Act,
it is sufficient compliance with subsection (1) for a period of 30
days after the decision to reclassify or revoke takes effect if the
publication bears the determined markings applicable to the
publication before that reclassification or revocation.
[10] Section 21 Category 2 restricted publications
Omit section 21 (3). Insert instead:
(3) If:
(a) a publication is reclassified under section 39 or 97A of
the Commonwealth Act, or
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Classification (Publications, Films and Computer Games) Enforcement
Amendment Bill 2001
Schedule 1 General amendments
(b) the Board revokes a classification for a publication
under section 22B (3) of that Act,
it is sufficient compliance with subsection (1) (d) for a period
of 30 days after the decision to reclassify or revoke takes effect
if the publication bears the determined markings applicable to
the publication before that reclassification or revocation.
[11] Sections 22A and 22B
Insert after section 22:
22A Sale or delivery of publications contrary to conditions
If a publication is classified Unrestricted or Category 1
restricted subject to a condition imposed under section 13A of
the Commonwealth Act, a person must not sell or deliver the
publication except in accordance with that condition.
Maximum penalty: 20 penalty units for an individual,
50 penalty units for a corporation.
22B Consumer advice for Unrestricted publications
A person must not sell a publication classified Unrestricted in
respect of which the Board has determined consumer advice
under section 20 (2) of the Commonwealth Act unless the
consumer advice is displayed on the publication or the
packaging of the publication.
Maximum penalty: 20 penalty units for an individual,
50 penalty units for a corporation.
[12] Section 23 Misleading or deceptive markings
Omit section 23 (3). Insert instead:
(3) If:
(a) a publication is reclassified under section 39 or 97A of
the Commonwealth Act, or
(b) the Board revokes a classification for a publication
under section 22B (3) of that Act,
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Classification (Publications, Films and Computer Games) Enforcement
Amendment Bill 2001
General amendments Schedule 1
it is sufficient compliance with this section for a period of 30
days after the decision to reclassify or revoke takes effect if the
publication bears the determined markings applicable to the
publication before that reclassification or revocation.
[13] Section 34 Computer games to display determined markings and
consumer advice
Insert after section 34 (4):
(4A) A person must not make a computer game available for playing
on a pay and play basis (for example, a coin operated arcade
game) unless the determined markings relevant to the
classification of the computer game and relevant consumer
advice, if any, are displayed on the device used for playing the
game.
Maximum penalty: 50 penalty units for an individual,
100 penalty units for a corporation.
(4B) If two or more computer games are available for playing on a
device referred to in subsection (4A), the determined markings
and consumer advice to be displayed on the device are those
relevant to the computer game with the highest classification.
[14] Section 34 (5)
Omit section 34 (5). Insert instead:
(5) If:
(a) a computer game is reclassified under section 39 of the
Commonwealth Act, or
(b) the Board revokes a classification or consumer advice
for a computer game under section 22B (3) of that Act,
display of the determined markings and consumer advice
applicable to the computer game before that reclassification or
revocation is sufficient compliance with this section for a
period of 30 days after the decision to reclassify or revoke takes
effect.
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Classification (Publications, Films and Computer Games) Enforcement
Amendment Bill 2001
Schedule 1 General amendments
[15] Section 38 Publishing of advertisements--approvals under the
Commonwealth Act
Omit section 38 (1). Insert instead:
(1) A person must not publish an advertisement for a film,
publication or computer game:
(a) if the advertisement has been refused approval, or
would be refused approval if submitted for approval,
under section 29 of the Commonwealth Act, or
(b) if the advertisement was approved under section 29 of
the Commonwealth Act and the approval is revoked
under section 13 (5) or 21A of that Act.
Maximum penalty:100 penalty units for an individual,
200 penalty units for a corporation.
[16] Section 42 Advertisements to contain determined markings and
consumer advice
Omit section 42 (2). Insert instead:
(2) If:
(a) a film, publication or computer game is reclassified
under section 39 or 97A of the Commonwealth Act, or
(b) the Board revokes a classification or consumer advice
for a film, publication or computer game under section
22B (3) of that Act,
display of the determined markings and consumer advice
applicable to the film, publication or computer game before that
reclassification or revocation is sufficient compliance with
subsection (1) for a period of 30 days after the decision to
reclassify or revoke takes effect.
[17] Section 43 Misleading or deceptive advertisements
Omit section 43 (3). Insert instead:
(3) If:
(a) a film, publication or computer game is reclassified
under section 39 or 97A of the Commonwealth Act, or
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Classification (Publications, Films and Computer Games) Enforcement
Amendment Bill 2001
General amendments Schedule 1
(b) the Board revokes a classification or consumer advice
for a film, publication or computer game under section
22B (3) of that Act,
display of the determined markings and consumer advice
applicable to the film, publication or computer game before that
reclassification or revocation is sufficient compliance with
subsection (2) for a period of 30 days after the decision to
reclassify or revoke takes effect.
[18] Section 46A
Insert after section 46:
46A Calling in films for classification
(1) If:
(a) the Director has reasonable grounds to believe that an
unclassified film is not an exempt film, and
(b) the film is being published in New South Wales, or the
Director has reasonable grounds to believe that it will be
published in New South Wales,
the Director may, by notice in writing given to the publisher of
the film, require the publisher to submit an application for
classification of the film.
(2) A person to whom such a notice is given must comply with the
notice within 3 business days after it is given.
Maximum penalty: 100 penalty units for an individual,
200 penalty units for a corporation.
(3) The Director is required to publish in the Commonwealth
Gazette a notice about the Director's decision under subsection
(1) requiring the publisher to submit an application.
(4) It is a defence to a prosecution for an offence under this section
to prove that the defendant did not intend to publish the film
(or cause it to be published) in New South Wales.
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Classification (Publications, Films and Computer Games) Enforcement
Amendment Bill 2001
Schedule 1 General amendments
[19] Section 47 Calling in computer games for classification
Insert after section 47 (1):
(1A) If:
(a) the Director has reasonable grounds to believe that an
unclassified computer game is not an exempt computer
game, and
(b) the computer game is being published in New South
Wales, or the Director has reasonable grounds to believe
that it will be published in New South Wales,
the Director may, by notice in writing given to the publisher of
the computer game, require the publisher to submit an
application for classification of the computer game.
[20] Section 47 (3)
Insert "or (1A)" after "(1)".
[21] Sections 48A and 48B
Insert after section 48:
48A Calling in a publication, film or computer game for
reclassification
(1) If:
(a) the Board proposes to reclassify a publication, film or
computer game under section 39 of the Commonwealth
Act, and
(b) the publisher of the publication, film or computer game
resides in New South Wales or has an office in New
South Wales,
the Director may, by notice in writing given to the publisher,
require the publisher to submit a copy of the publication, film
or computer game for the purpose of reclassifying it.
(2) A person to whom such a notice is given must comply with the
notice within 3 business days after it is given.
Maximum penalty: 100 penalty units for an individual,
200 penalty units for a corporation.
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Classification (Publications, Films and Computer Games) Enforcement
Amendment Bill 2001
General amendments Schedule 1
(3) It is a defence to a prosecution for an offence under this section
to prove that the defendant did not have a copy of the
publication, film or computer game.
48B Obtaining copies for review
(1) If:
(a) an application is made for a review of a classification
decision under the Commonwealth Act by a person who
is not the original applicant for classification of the
publication, film or computer game concerned, and
(b) the Board or Review Board does not have a copy of the
publication, film or computer game and a copy is not
available to it, and
(c) the original applicant or the publisher of the publication,
film or computer game resides in New South Wales or
has an office in New South Wales,
the Director may, by notice in writing given to the original
applicant or publisher, require the original applicant or
publisher to make a copy of the publication, film or computer
game available for the purpose of the review.
(2) A person to whom such a notice is given must comply with the
notice within 3 business days after it is given.
Maximum penalty: 100 penalty units for an individual,
200 penalty units for a corporation.
(3) It is a defence to a prosecution for an offence under this section
to prove that the defendant did not have a copy of the
publication, film or computer game.
[22] Section 61A
Insert after section 61:
61A Penalty notices for certain offences
(1) An authorised officer may serve a penalty notice on a person if:
(a) it appears to the officer that the person has committed
an offence under this Act or the regulations, and
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Classification (Publications, Films and Computer Games) Enforcement
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Schedule 1 General amendments
(b) the regulations prescribe that offence as an offence for
which a penalty notice may be issued.
(2) A penalty notice is a notice to the effect that, if the person
served does not wish to have the matter determined by a court,
the person may pay, within the time and to the person specified
in the notice, the penalty prescribed by the regulations for the
offence if dealt with under this section.
(3) A penalty notice may be served personally or by post.
(4) If the amount of the penalty prescribed for an alleged offence
is paid under this section, no person is liable to any further
proceedings for the alleged offence.
(5) Payment under this section is not an admission of liability for
the purposes of, and does not affect or prejudice, any civil
claim, action or proceeding arising out of, the same occurrence.
(6) The regulations may:
(a) prescribe an offence for the purposes of this section by
specifying the offence or by referring to the provision
creating the offence, and
(b) prescribe the amount of penalty for an offence if dealt
with under this section, and
(c) prescribe different amounts of penalty for different
offences or classes of offences.
(7) The amount of penalty prescribed under this section for an
offence may not exceed the maximum amount of penalty
which could be imposed for the offence by a court.
(8) This section does not limit the operation of any other provision
of, or made under, this or any other Act relating to proceedings
which may be taken in respect of offences.
(9) In this section:
authorised officer means, in relation to a particular offence, a
person belonging to a class of persons specified in the
regulations in relation to that offence.
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Classification (Publications, Films and Computer Games) Enforcement
Amendment Bill 2001
General amendments Schedule 1
[23] Schedule 1 Savings and transitional provisions
Omit "this Act" from clause 1 (1). Insert instead:
the following Acts:
this Act
the Classification (Publications, Films and Computer Games) Enforcement
Amendment Act 2001
[24] Schedule 1, clause 1 (2)
Omit "this Act". Insert instead "the Act concerned".
[25] Schedule 1, Part 3
Insert after clause 6:
Part 3 Provisions consequent on Classification
(Publications, Films and Computer Games)
Enforcement Amendment Act 2001
7 Definition
In this Part:
amending Act means the Classification (Publications, Films
and Computer Games) Enforcement Amendment Act 2001.
8 Transitional provisions
(1) Section 34 (4A) and (4B), as inserted by Schedule 1 [13] to the
amending Act, apply to a computer game whether published
before or after the commencement of Schedule 1 [13].
(2) Sections 46A and 48A, as inserted by Schedule 1 [18] and [21]
to the amending Act, apply to a publication, film or computer
game whether published before or after the commencement of
Schedule 1 [18] and [21], respectively.
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Classification (Publications, Films and Computer Games) Enforcement
Amendment Bill 2001
Schedule 1 General amendments
(3) An amendment to this Act made by any other provision of the
amending Act applies only to:
(a) a publication, film or computer game first published on
or after the commencement of that provision, or
(b) a publication, film or computer game for which an
application for classification is made on or after that
commencement.
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Classification (Publications, Films and Computer Games) Enforcement
Amendment Bill 2001
Amendments relating to on-line services Schedule 2
Schedule 2 Amendments relating to on-line services
(Section 3)
Part 5A
Insert after section 45:
Part 5A On-line services
45A Definitions
In this Part:
access has the same meaning as it has in Schedule 5 to the
Broadcasting Services Act 1992 of the Commonwealth.
Internet content has the same meaning as it has in Schedule 5
to the Broadcasting Services Act 1992 of the Commonwealth.
Note. Internet content is defined so as to mean information that is kept
on any article or material (for example, a disk) from which information is
capable of being reproduced, with or without the aid of any other article or
device and that is accessed, or available for access, using an Internet
carriage service (as defined in that Act) but so as not to include ordinary
electronic mail or information that is transmitted in the form of a
broadcasting service.
matter unsuitable for minors means Internet content
consisting of a film that is classified R, or that would, if
classified, be classified R, or an advertisement for any such
film consisting of or containing an extract or sample from the
film comprising moving images.
Note. The National Classification Code set out in the Classification
(Publications, Films and Computer Games) Act 1995 of the
Commonwealth ("the Code") provides for films and computer games to be
classified RC 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 person who is, or who appears to be, a child under 16
(whether the person is engaged in sexual activity or not), or
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Classification (Publications, Films and Computer Games) Enforcement
Amendment Bill 2001
Schedule 2 Amendments relating to on-line services
(c) promote, incite or instruct in matters of crime or violence.
Computer games that are unsuitable for a minor to see or play
may also be classified RC.
objectionable matter means Internet content consisting of:
(a) a film that is classified X, or that would, if classified, be
classified X, or
(b) a film or computer game that is classified RC, or that
would, if classified, be classified RC, or
(c) an advertisement for a film or computer game referred
to in paragraph (a) or (b), or
(d) an advertisement that has been, or would be, refused
approval under section 29 (4) of the Commonwealth
Act.
on-line service means an Internet carriage service within the
meaning of Schedule 5 to the Broadcasting Services Act 1992
of the Commonwealth and includes a bulletin board.
45B Application of Part
(1) This Part applies to an on-line service other than an on-line
service, or on-line service of a class, prescribed by the
regulations.
(2) Nothing in this Part makes it an offence to supply objectionable
matter or matter unsuitable for minors by means of an on-line
service to any person, or class of persons, prescribed by the
regulations.
(3) A person is not guilty of an offence under this Part by reason
only of the person:
(a) owning, or having the control and management of the
operation of, an on-line service, or
(b) facilitating access to or from an on-line service by
means of transmission, downloading, intermediate
storage, access software or similar capabilities.
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Classification (Publications, Films and Computer Games) Enforcement
Amendment Bill 2001
Amendments relating to on-line services Schedule 2
45C Making available or supplying objectionable matter on on-line
service
A person must not, by means of an on-line service, make
available, or supply, to another person, objectionable matter:
(a) knowing that it is objectionable matter, or
(b) being reckless as to whether it is objectionable matter.
Maximum penalty: 100 penalty units for an individual,
250 penalty units for a corporation.
45D Making available or supplying matter unsuitable for minors on
on-line service
(1) A person must not, by means of an on-line service, make
available, or supply, to another person, any matter unsuitable
for minors:
(a) knowing that it is matter unsuitable for minors, or
(b) being reckless as to whether it is matter unsuitable for
minors.
Maximum penalty: 50 penalty units for an individual,
100 penalty units for a corporation.
(2) It is a defence to a prosecution under this section for the
defendant to prove that access to the matter unsuitable for
minors was subject to an approved restricted access system at
the time the matter was made available or supplied by the
defendant.
(3) In this section:
approved restricted access system means:
(a) any restricted access system within the meaning of the
Broadcasting Services Act 1992 of the Commonwealth,
or
(b) any other system of limiting access declared by the
Minister, by order published in the Gazette, to be an
approved restricted access system for the purposes of
this definition.
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Schedule 2 Amendments relating to on-line services
45E Recklessness
(1) A person is reckless as to whether matter is objectionable
matter or matter unsuitable for minors:
(a) if the person is aware of a substantial risk that the matter
is objectionable matter or matter unsuitable for minors,
and
(b) that having regard to the circumstances known to the
person, it is unjustifiable to take the risk.
(2) The question of whether taking a risk is unjustifiable is one of
fact.
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