Classification (Markings for Films and Computer Games) Amendment Determination 2009 (No. 1)

Administered by Attorney-General's Department

Legislation au F2009L02480 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

ISSUED BY THE MINISTER FOR HOME AFFAIRS

CLASSIFICATION (MARKINGS FOR FILMS AND COMPUTER GAMES) AMENDMENT DETERMINATION 2009 (No. 1)

The Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act) facilitates the operation of the intergovernmental co-operative legislative scheme for censorship in Australia.  The Classification Act provides for the classification of films, computer games and some publications. 

Authority for making the instrument

State and Territory legislation requires classified films and computer games and advertising for these materials to display markings determined under section 8 of the Classification Act.  Section 8 of the Classification Act provides that the Minister may, by legislative instrument, determine markings for each type of classification giving information about the classification; and the manner in which the markings are to be displayed.

Purpose of the instrument

The Classification (Markings for Films and Computer Games) Determination 2007 (the Markings Determination) stipulates the format, size and placement of the markings on films and computer games and on advertisement for these products.

Issues giving rise to the need for the instrument

The Markings Determination is being amended so that it will operate consistently with the Classification (Advertising of Unclassified Films and Computer Games Scheme) Determination 2009 (the Advertising Determination).  The Advertising Determination and these consequential amendments to the Markings Determination are part of a package of reforms that include amendments to the Classification Act inserted by the Classification (Publications, Films and Computer Games) Amendment (Assessments and Advertising) Act 2008 (the Amendment Act) and amendments to State and Territory classification enforcement legislation.  The new scheme will permit unclassified films and computer games, except those likely to be classified X 18+ or RC - Refused Classification, to be advertised in accordance with the Advertising Determination.

The Advertising Determination commences on 1 July 2009.  The Advertising Determination sets out conditions on advertising unclassified films and computer games and establishes an industry self-assessment scheme.  The Advertising Determination will, among other things, introduce a new advertising message and the display requirements for that message. 

The Classification (Markings for Films and Computer Games) Amendment Determination 2009 (No. 1) amends the Markings Determination to ensure the effectiveness of the provisions in the Advertising Determination relating to which advertisements displaying the advertising message must be updated to display the classification marking and the timeframes for doing so.  Consistent with the Advertising Determination, the Markings Determination is also amended to remove an anomaly which, in the case of very short moving image advertisements, may require the classification marking to be displayed for longer than the length of the relevant advertisement for a film or computer game.

Consultation

The package of reforms for advertising unclassified films and computer games has been the subject of extensive consultation, which is outlined in the Explanatory Statement to the Advertising Determination.  The Classification Board, State and Territory officials and peak industry bodies were consulted throughout the development of these amendments to the Markings Determination.  The Minister for Home Affairs has consulted State and Territory Censorship Ministers before making the determination, as required by section 8(1A) of the Classification Act..

Commencement arrangements

The Classification (Markings for Films and Computer Games) Amendment Determination 2009 (No. 1) commences on 1 July 2009.

This is the day on which the Advertising Determination and the relevant provisions in the Amendment Act commence.  Complementary amendments to the Classification (Publications, Films and Computer Games) Regulations 2005 also come into effect on 1 July 2009. 

The Markings Determination is a legislative instrument for the purposes of the LIA. In accordance with subsections 44(1) and 54(1) of the LIA, the Determination is not subject to disallowance or sunsetting because the Classification Act facilitates the establishment or operation of an intergovernmental scheme involving the Commonwealth and one or more of the States, and authorises the instrument to be made by the Minister.

 

 

 

The Hon Brendan O’Connor MP

MINISTER FOR HOME AFFAIRS

 

ATTACHMENT

Details of the Classification (Markings for Films and Computer Games) Amendment Determination 2009 (No. 1)

Section 1 – Name of the Determination

The Determination is called the Classification (Markings for Films and Computer Games) Amendment Determination 2009(No. 1) (the Determination).

Section 2 – Commencement

This section provides that the Determination commences on 1 July 2009.  The commencement of the Determination is concurrent with the commencement of the Advertising Determination and the Classification (Publications and Computer Games) Amendment Regulations 2009 (No. -).

Section 3 – Amendment of Classification (Markings for Films and Computer Games) Determination 2007

This section provides that the amendments to the Markings Determination are in Schedule 1.

 

SCHEDULE 1 – AMENDMENTS

 

Details of the Classification (Markings for Films and Computer Games) Amendment Determination 2009 (No. 1)

 

Item [1]: In section 7, after the definition of the Act

This item inserts a definition of Advertising Determination.  The note clarifies that definitions of long message and message are contained in the Advertising Determination.

Item [2]: After section 34

This item inserts section 34A into the Markings Determination.  The new section ensures that consumers of cinema release films are aware of the actual classification of the films they want to see before they purchase their tickets.

Item [3]: New section 35A

This item inserts section 35A, to ensure that advertising material for an unclassified film or computer game, which has not been classified X 18+ or RC, and which displays the advertising message prescribed in the Advertising Determination, complies with that Determination, irrespective of the medium in which the advertising appears.  This means that advertising for unclassified films or computer games must be updated to the classification marking within the timeframes required by the Advertising Determination.  It also allows the exceptions to updating advertising that displays the advertising message to operate, provided that the advertising complies with the Advertising Determination.

Item [4]: Paragraph 40(2)(b)

This amendment corrects an anomaly in the Markings Determination which can have the result that the marking is required to be displayed for longer than the advertisement for a film or computer game.  The previous requirement that a ticker be shown for a minimum of 10 seconds could, where there is an advertisement for a range of products including a film or computer game, lead to the ticker provide classification information while unrelated products such as socks, clothing or garden products are being shown on the screen.  This undermines the effectiveness of the message.

The new requirement for advertisements of less than 10 seconds is that the marking be displayed for the length of the advertisement.  The new provision is similar to subparagraph 2.5(1)(b)(ii) of the Advertising Determination.

A note is included to clarify that where the advertisement for a film or computer game is part of an advertisement including other unrelated material, only the advertisement for the film or computer game is covered by the determination and its length, not that of the advertising for other material, is the relevant time for the purposes of applying this determination. 

Item [5]: Subparagraphs 40(3)(b)(i) and (ii)

Subsection 40(3) provides an alternative to subsection 40(2) for the display of classification markings on moving image non-celluloid advertisements for classified films and computer games.  The subsection is amended so that the requirements for length of display of a ticker are consistent with subsection (2) and with the Advertising Determination.

Item [6]: Section 41

The requirement in section 41 for advertisements for two or more films or computer games to display a ticker for  at least 10 seconds has been amended to the length of the advertisement for advertisements less than 10 seconds long, to be consistent with the Advertising Determination.

Item [7]: Section 41, note

 

This item amends the note to indicate that there is another note following it.

Item [8]: Section 41, after the note

This item inserts a note 2 after note 1 to clarify that the advertising time relates to the length of the actual advertisement for the film or computer game, even if the advertisement is contained within larger advertisements that include other material.  This note is identical to the note inserted by Item [9].

 

Overview

The Classification (Markings for Films and Computer Games) Amendment Determination 2009 (No. 1) was enacted to address inconsistencies between the Classification (Markings for Films and Computer Games) Determination 2007 and the Classification (Advertising of Unclassified Films and Computer Games Scheme) Determination 2009. This amendment was necessary to align the regulations for the display of classification markings on films and computer games with the new advertising provisions introduced by the Classification (Publications, Films and Computer Games) Amendment (Assessments and Advertising) Act 2008. The Minister for Home Affairs issued this determination under the authority granted by section 8 of the Classification (Publications, Films and Computer Games) Act 1995, with the policy objective of ensuring that the classification markings are displayed effectively and consistently across all media, enhancing consumer awareness of content ratings before making purchasing decisions. The determination also seeks to correct an anomaly whereby classification markings on very short advertisements could be displayed for longer than the advertisement itself, which was deemed ineffective and potentially misleading. By aligning the display requirements with those set out in the Advertising Determination, the amendment ensures that the markings are shown for the actual duration of the advertisement, regardless of whether it is part of a longer advertisement featuring unrelated content. This amendment, along with others outlined in the explanatory statement, aims to streamline and modernise the regulatory framework for film and computer game classifications and advertising in Australia.

Scope and Application

The Classification (Markings for Films and Computer Games) Amendment Determination 2009 (No. 1) applies to the classification markings used on films, computer games, and advertisements for these products in Australia. It amends the Classification (Markings for Films and Computer Games) Determination 2007 to ensure consistency with the Classification (Advertising of Unclassified Films and Computer Games Scheme) Determination 2009, which is part of a broader package of reforms aimed at regulating the advertising of unclassified films and computer games. This Determination is applicable nationally across Australia and is made under the authority of the Classification (Publications, Films and Computer Games) Act 1995, which facilitates an intergovernmental co-operative scheme for censorship. The amendments ensure that the display requirements for classification markings are aligned with the new advertising scheme, allowing for unclassified films and computer games, excluding those likely to be classified X 18+ or RC, to be advertised under specific conditions. The Determination does not apply to the classification of publications but is specifically focused on films and computer games. It commenced on 1 July 2009, the same day as the Advertising Determination and relevant provisions in the Classification (Publications, Films and Computer Games) Amendment (Assessments and Advertising) Act 2008.

Key Provisions

The Classification (Markings for Films and Computer Games) Amendment Determination 2009 (No. 1) amends the Classification (Markings for Films and Computer Games) Determination 2007 to ensure consistency with the Classification (Advertising of Unclassified Films and Computer Games Scheme) Determination 2009 (the Advertising Determination). These amendments align with the broader legislative reforms introduced by the Classification (Publications, Films and Computer Games) Amendment (Assessments and Advertising) Act 2008 and State and Territory classification enforcement legislation. The primary objective is to facilitate the advertisement of unclassified films and computer games, with exceptions for those likely to be classified X 18+ or RC - Refused Classification, in accordance with the Advertising Determination. This includes the introduction of a new advertising message and display requirements for that message, as well as adjustments to the display of classification markings on advertisements. Under the amended Markings Determination, certain obligations are imposed on the parties involved. Firstly, the amendments necessitate that advertisements for unclassified films or computer games, which display the advertising message prescribed in the Advertising Determination, comply with the new advertising requirements. This includes updating the classification marking within the timeframes specified by the Advertising Determination. Secondly, the amendments ensure that cinema release films have their actual classifications clearly displayed before ticket sales, thereby enhancing consumer awareness. Additionally, for advertisements less than 10 seconds in duration, the classification marking must be displayed for the full length of the advertisement, rather than a fixed minimum duration, to maintain message effectiveness. Failure to comply with the provisions of the Classification (Markings for Films and Computer Games) Amendment Determination 2009 (No. 1) may result in civil or criminal consequences, depending on the severity of the breach. The specific penalties are not detailed within the Explanatory Statement but would be outlined in the relevant State and Territory classification enforcement legislation, which has been amended to align with these determinations. These penalties may include fines, orders for rectification, or other enforcement actions to ensure compliance with the regulatory scheme. The Classification (Markings for Films and Computer Games) Amendment Determination 2009 (No. 1) comes into effect on 1 July 2009, in conjunction with the Advertising Determination and other relevant legislative amendments. This commencement date ensures that all related provisions operate in harmony, providing a coherent framework for the classification and advertising of films and computer games in Australia. The Determination is not subject to disallowance or sunsetting as it facilitates an intergovernmental scheme involving the Commonwealth and the States, as authorised by the Classification (Publications, Films and Computer Games) Act 1995.

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