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1
Classification of Computer Games and Images (Interim)
CLASSIFICATION OF COMPUTER
GAMES AND IMAGES (INTERIM) BILL
1995
EXPLANATORY NOTE
GENERAL OUTLINE
Objectives of the Legislation
The main objectives of the Bill are:
(a) to classify all computer and video games published after the
commencement of the legislation in accordance with guidelines
agreed to by all States/Territories and the Commonwealth;
(b) to ensure consumer information is provided to
parents/guardians/care providers of children;
(c) to prohibit the sale/distribution/exhibition of undesirable and
exploitative material, especially material containing themes of
sexual violence and abhorrent behaviour;
(d) to enable the comprehensive classification of games that are
exhibited or played in arcade parlours;
(e) to ensure that an appropriate and proactive enforcement policy is
adopted by vesting classification/certification powers in a State
official, designated as the "Computer Games Classification
Officer", in those circumstances when seized material has not
already been classified by the Commonwealth Office of Film and
Literature Classification.
Reasons for the Bill
The Commonwealth and all States and Territories have agreed that there
is a need for computer games and images to be subject to a classification
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Classification of Computer Games and Images (Interim)
regime so as to prevent exploitative and offensive material being
sold/hired/displayed and also to provide consumer education to
parents/guardians of children.
The Senate Select Committee on Community Standards Relevant to the
Supply of Services Utilising Electronic Technologies, in its October 1993
report on Video and Computer Games and Classification Issues
commended the proposal of Governments to establish and adopt uniform
classification legislation for video and computer games. The Committee
recommended that a high priority be accorded to achieving that goal and that
censorship authorities maintain a monitoring role on the relevance of the
legislation in a changing industry.
The computer and video games industry is expanding rapidly. In 1993 it
was estimated that in the seven years since 1986 the video games industry
alone had grown to a turnover of $7 billion world-wide.
The Senate Select Committee received evidence that the arcade parlour
industry in Australia employed approximately 5,000 people and that there
were some 50,000 coin-operated arcade amusement machines. It was
further estimated that the coin-operated arcade games account for only 30%
of the official market, with the balance in video and computer games and
bulletin boards.
At the present time, there is no legislation providing guidance to parents
or targeting offensive material which is available to be purchased/hired and
which can be loaded either onto computers or video games machines. The
only specific legislative supervision is provided by the Art Unions and
Public Amusements Act 1992. Pursuant to that statute a person must not
conduct a public amusement unless licensed to do so and the chief executive
has approved the public amusement and each game played on it. The chief
executive must be satisfied that each game played on a public amusement is
not offensive or obscene.
Accordingly, there is some supervision of the games played in arcade
parlours, but there is no guidance on what games are "offensive or
obscene" nor any mechanism for either consumer education or
comprehensively protecting minors.
There is also concern that because of the level of technology involved
with the use of video and computer games, many parents do not necessarily
have the competency to ensure adequate parental guidance. It has been
suggested that Governments need to provide some consumer education to
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Classification of Computer Games and Images (Interim)
parents so that they are in a better position to monitor the material that their
children have access to and play on video games machines or computers.
The proposed legislation will provide guidance to parents, and at the
same time, ensure that there are adequate powers granted to both the
Commonwealth Office of Film and Literature Classification and the State
Censor so that a proactive enforcement policy can be put into place.
Estimated Cost for Government Implementation
There will be some extra costs for Government, in that inspectors will be
able to seize material which presently is not subject to classification
legislation, and the State Censor will be required to classify/certify seized
material. However, costs for Government are not expected to be significant
in the short to medium term.
Consultation
The proposed legislation has been the subject of consultation involving
the Commonwealth and all States and Territories.
The Queensland legislation is modelled on provisions which were
originally inserted in the ACT Classification of Publications Ordinance
1983 by amendments introduced in February 1994.
NOTES ON CLAUSES
PART 1--PRELIMINARY
Clause 1 sets out the short title of the Act.
Clause 2 sets out the commencement date.
Clause 3 refers to the Dictionary for the Act contained in Schedule 2.
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Classification of Computer Games and Images (Interim)
PART 2--CLASSIFICATION OF COMPUTER
GAMES
Clause 4 provides that if a computer game is classified under the
Classification of Publications Ordinance 1983, it has effect for the
purposes of this Act. However, if a computer game is classified or refused
classification under the Act is later classified under the Classification of
Publications Ordinance 1983, the classification under this Act has effect.
Clause 5 empowers the Computer Games Classification Officer to
classify or refuse to approve the classification of an unclassified game. The
Officer may act on his/her own initiative or as a result of representations by
third parties. In determining the appropriate classification for a game, or
determining to refuse to approve classification of a game, the Officer can
have regard to section 25A, section 34(1)-(4) and relevant definition
provisions of the Classification of Publications Ordinance 1983. The
relevant non-definitional provisions of the Ordinance are attached to the Act,
though do not form part of it.
Clause 6 enables the Computer Games Classification Officer to
reclassify a game which has been previously classified or which has been
refused approval for classification.
Clause 7 enables the Computer Games Classification Officer to ask a
publisher of a computer game to give the Officer a copy for the purposes of
classification or reclassification. The clause sets out the procedure which the
Officer must follow, and provides that if the game is classified or refused
approval for classification (other than a child abuse computer game) it must
be immediately returned to the publisher.
Clause 8 allows a person who has been adversely affected by a decision
of the Computer Games Classification Officer under clause 5 to appeal
within 28 days after becoming aware of the decision to the appeal body.
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Classification of Computer Games and Images (Interim)
PART 3--DEMONSTRATION OF COMPUTER
GAMES
Clause 9 prohibits a person demonstrating or attempting to demonstrate
an unclassified computer game in a public place. This provision applies to a
computer game published before the commencement of the Act only if it is
an objectionable computer game.
Clause 10 prohibits a person demonstrating or attempting to demonstrate
in a public place an "MA(15+)" computer game if a child under 15 who is
not accompanied by an adult is present. Subclause (2) provides a defence to
prosecution if the person believes on reasonable grounds that the child is at
least 15 or is or will be accompanied by an adult.
PART 4--ADVERTISING AND SUPPLY OF
COMPUTER GAMES
Clause 11 prohibits a person using or attempting to use an advertisement
for a computer game if:
· the advertisement has been refused approval under the Ordinance;
· it is used other than in the form in which it was approved; or
· it is used other than in accordance with the conditions subject to
which approval was given.
Clause 12 provides that a person must not publish or attempt to publish
an advertisement for a computer game unless it bears the determined
markings so that they are clearly visible, having regard to the size and nature
of the advertisement.
Clause 13 prohibits false advertising of computer games.
Clause 14 provides that a person must not sell or attempt to sell a
computer game unless the container, wrapping or casing in which it is
contained bears the determined markings.
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Classification of Computer Games and Images (Interim)
Clause 15 provides that a person who is selling or attempting to sell a
classified computer game in a public place must keep displayed a notice
about classifications in the form determined under the section 26 of the
ACT Publications Control Act 1989 for a computer game.
Clause 16 sets out requirements for persons selling or attempting to sell
a classified computer game containing advertisements for other classified
games or objectionable computer games.
Clause 17 sets out restrictions on persons who display or attempt to
display for sale an "MA(15+)" computer game or an advertisement for
such a game.
Clause 18 restricts the sale or delivery or attempted sale or delivery of an
"MA(15+)" computer game to a child under 15 years of age, unless
accompanied by an adult.
Clause 19 prohibits the sale or attempted sale of unclassified computer
games which are published after the commencement of the Act.
Unclassified games published before the commencement of the Act, with
the exception of objectionable computer games, are not subject to this
section.
Clause 20 prohibits the sale of improperly marked unclassified computer
games.
Clause 21 prohibits the sale of improperly marked classified computer
games.
PART 5--OBJECTIONABLE COMPUTER GAMES
Note: The term "objectionable computer game is defined in Schedule 2
to mean an unclassified computer game, or an unapproved
advertisement for a computer game, that--
(a) describes, depicts, expresses or otherwise deals with matters of
sex, drug misuse or addiction, crime, cruelty, violence, or
revolting or abhorrent phenomena, in a way that offends against
standards of morality, decency and propriety generally accepted
by reasonable adults; or
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Classification of Computer Games and Images (Interim)
(b) depicts a minor (whether engaged in sexual activity or otherwise)
who is, or is apparently, under 16 in a way that is likely to cause
offence to a reasonable adult; or
(c) promotes, incites or instructs in matters of crime or violence; or
(d) has been refused classification or approval.
Clause 22 prohibits the demonstration or attempted demonstration of an
objectionable computer game in a way that it can be seen by persons in a
public place.
Clause 23 prohibits the demonstration of an objectionable computer
game in the presence of a child. A child is an individual under 18 years.
Clause 24 prohibits the sale, or attempted sale, of an objectionable
computer game.
Clause 25 prohibits the keeping or possession of objectionable computer
games on any premises from which classified computer games are sold.
Clause 26 prohibits the possession of an objectionable computer game
for the purposes of sale or demonstration in a public place.
In addition, subclause (3) prohibits a person knowingly having
possession of a child abuse computer game. "Child abuse computer game"
is defined in Schedule 2 to mean "a computer game that is an objectionable
computer game because it depicts a child (whether engaged in sexual
activity or otherwise) who is, or is apparently under 16 years in a way likely
to cause offence to a reasonable adult person".
Clause 27 prohibits:
-- the making or production; or
-- the copying;
of an objectionable computer game for the purpose of gain. In addition
clause 27 prohibits the making, producing or copying of a child abuse
computer game.
Clause 28 prohibits the procurement of a minor or the attempted
procurement of a minor to be in any way concerned in the making or
production of an objectionable computer game.
Clause 29 provides that a person is not guilty of an offence under section
26 (Possession of Objectionable Computer Games) or section 27 (Making
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Classification of Computer Games and Images (Interim)
an Objectionable Computer Game) in certain circumstances. The defence
does not apply to those objectionable computer games falling within
paragraphs (b)-(d) of the definition.
PART 6--INVESTIGATION AND ENFORCEMENT
Clause 30 allows for the appointment of both Departmental staff and
Police Officers to be inspectors.
Clause 31 sets out the terms of appointment of inspectors.
Clause 32 provides for the issuing of identity cards to Departmental
inspectors, as well as the material which the card must contain.
Clause 33 requires the production or display of an inspector's identity
card prior to exercising a power in relation to a person. The section does not
apply to a uniformed police officer.
Clause 34 sets out the rights of inspectors to enter places.
Clause 35 sets out the procedures which an inspector must follow where
the inspector intends to ask the occupier of a place for consent to enter.
Clause 36 sets out the ability, and the procedures, which an inspector
must follow when applying to a Magistrate for a warrant to enter a place.
Clause 37 enables, and prescribes the procedures to be followed where
an application is made for a warrant other than in person. In particular, the
clause sets out the procedures where an application is made for a warrant by
phone, fax, radio or other form of communication.
Clause 38 sets out an inspector's general powers after entering a place.
Clause 39 sets out the basis on which an inspector is entitled to enter or
search a vehicle, and the powers which the inspector may exercise.
Clause 40 sets out the powers an inspector may exercise to enable a
vehicle to be entered.
Clause 41 sets out the power to seize evidence by an inspector who has
entered a place with the occupier's consent or pursuant to a warrant issued
by a Magistrate.
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Classification of Computer Games and Images (Interim)
Clause 42 sets out additional powers of inspectors to seize computer
games when a representation has been made to the Computer Games
Classification Officer, and the Officer reasonably believes the computer
game is an objectionable computer game.
Clause 43 sets out the powers of, and the procedure to be followed by,
an inspector when seizing things.
Clause 44 requires an inspector to give to the person from whom a thing
is seized a receipt unless this would be impracticable or unreasonable.
Clause 45 provides for the return of a seized thing, other than a child
abuse computer game, to the owner within specified time periods unless
proceedings have been instituted.
Clause 46 enables the owner of a seized thing, other than a child abuse
computer game, to have access to it until it is either forfeited or returned.
Clause 47 provides a power for an inspector to require a person to state
that person's name and address in specified circumstances and the
procedure that must be followed.
Clause 48 sets out the procedure to be followed by a police officer to
arrest a person without warrant for failure to give that person's name and
address to an inspector.
Clause 49 provides a power for an inspector to require information from
persons where the inspector reasonably believes that:
-- an offence against the Act has been committed; and
-- a person may be able to give information about the offence.
Clause 50 makes it an offence for a person to give false or misleading
information to an inspector.
Clause 51 prohibits a person, without reasonable excuse, obstructing an
inspector in the exercise of a power. The section sets out the procedure an
inspector must follow if the inspector decides to proceed with the exercise
of the power as well as the ability of a departmental inspector to ask a police
officer to assist with the enforcement of the section.
Clause 52 sets out the procedure to be followed by a police officer to
arrest a person without warrant for obstructing an inspector.
Clause 53 prohibits the impersonation of an inspector.
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Classification of Computer Games and Images (Interim)
Clause 54 provides that while exercising a power, either an inspector or a
person acting under the direction of an inspector, damages anything, notice
must be given to the owner of any non-trivial damage.
Clause 55 allows a person to claim compensation from the State if the
person incurs loss or expense because of the exercise or purported exercise
for the power under Part 6. A Court may only award a compensation if it is
satisfied that it is just in the circumstances of the particular case. In addition,
a regulation may prescribe matters that may, or must, be taken into account
by a Court when considering whether it is just to make a compensation
Order.
PART 7--EXEMPTIONS
Clause 56 enables the Computer Games Classification Officer to
approve in writing an entity as an approved entity, and further sets out the
procedure which must be followed by the Officer.
Clause 57 sets out the procedure to be followed where an approved entity
makes application for an exemption of a computer game that the entity
intends to demonstrate at a specified event.
Clause 58 enables the Computer Games Classification Officer to exempt
an approved entity from all or part of the Act for a specified game to be
demonstrated a specified event, with or without conditions.
Where the Computer Games Classification Officer exercises his
discretion in favour of a computer game intended to be demonstrated by an
approved entity, the game is not indecent or obscene material for the
purposes of the Criminal Code or the Vagrants, Gaming and Other
Offences Act 1931.
Clause 59 empowers the Computer Games Classification Officer to
exempt an entity from the Act or specified provisions with respect to
computer games of a medical, educational or scientific character or intended
to be used for a medical, educational or scientific purpose. An exemption
can be granted with conditions and revoked if the conditions are not
complied with. For so long as the exemption remains in force the computer
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Classification of Computer Games and Images (Interim)
game is not indecent or obscene material for the purposes of the Criminal
Code or the Vagrants, Gaming and Other Offences Act 1931.
Clause 60 sets out a right of appeal to the appeal body against a refusal of
the Computer Games Classification Officer to either approve or revoke the
approval of an entity or to refuse to give an exemption under section 58 or
59.
PART 8--MISCELLANEOUS
Clause 61 sets out the procedures followed where an appeal is made to
the appeal body either under section 8 or section 60.
Clause 62 sets out certain evidentiary matters concerning the
appointment or power of the computer games classification officer, the
officer's delegate and an inspector and certificates or delegations signed by
the Computer Games Classification Officer.
Clause 63 provides that all offences other than those under section 28 or
involving a child abuse computer game, are summary offences. Those
involving section 28 or child abuse computer games are punishable on
indictment.
Clause 64 enables the Court, on the conviction of a person for an
offence, to order the forfeiture of anything used to commit the offence or
anything else the subject of the offence.
Clause 65 provides that a forfeited thing becomes the State's property
and may be dealt with as directed by the chief executive.
Clause 66 provides that a classified computer game and an approved
advertisement are not indecent or obscene material for the purpose of the
Criminal Code or the Vagrants, Gaming and Other Offences Act 1931.
Clause 67 enables the Governor in Council to make regulations for the
Act, including the constitution, practice and procedure of the appeal body.
Clause 68 enables the Computer Games Classification Officer to
delegate, with the written approval of the chief executive, the Officer's
powers under the Act to another officer of the Department or someone else
prescribed by regulation.
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Classification of Computer Games and Images (Interim)
Clause 69 empowers the chief executive to approve a form for use under
the Act.
Clause 70 provides that the Act expires two years after its
commencement.
PART 9--AMENDMENT OF ART UNIONS AND
PUBLIC AMUSEMENTS ACT 1992
Clause 71 provides that the Art Unions and Public Amusements Act
1992 is amended as set out in Schedule 1.
SCHEDULE 1
Schedule 1 sets out amendments to the Art Unions and Public
Amusements Act 1992.
Amendments are made to sections 76(b), 80(1) and 80(3) by deleting
references to games that are played on public amusements. Games which
are played on public amusements will no longer be approved by the chief
executive under the Art Unions and Public Amusements Act 1992, but
instead will be subject to the classification provisions of the Classification of
Computer Games Images (Interim) Act 1995.
SCHEDULE 2
Schedule 2 sets out the dictionary for the Bill.
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Classification of Computer Games and Images (Interim)
ATTACHMENT
For the purposes of section 5 of the Bill, the Attachment sets out those
parts of sections 25A and 34 of the Classification of Publications
Ordinance 1983 (ACT) which are applied under the Act.
© The State of Queensland 1995