Classification (Markings for Films and Computer Games) Determination 2005

EXPLANATORY STATEMENT

ISSUED BY THE DIRECTOR OF THE CLASSIFICATION BOARD

CLASSIFICATION (MARKINGS FOR FILMS AND COMPUTER GAMES) DETERMINATION 2005

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

Complementary classification enforcement legislation, enacted by the States and Territories, prescribes restrictions on the exhibition, demonstration, sale, hire, delivery and advertising of films and computer games.

Authority for making the Determination

Section 8 of the Act provides that the Director of the Classification Board may determine the markings for each type of classification giving information about the classification and the manner in which the markings are to be displayed.  This Determination is made pursuant to section 8 of the Act.

Effect of the Determination

The “determined markings” provide consumers with information about the classification and, in the case of consumer advice the content of, films and computer games.  In the absence of such markings consumers would find it very difficult to access classification information.

This Determination prescribes the markings that are required to be displayed on classified films and computer games and advertising related to such products.  The Determination also prescribes the manner in which those markings are to be displayed.

Complementary classification enforcement legislation requires films, computer games and related advertising to display the determined markings (and also consumer advice) under certain circumstances.  A failure to comply with this requirement, without reasonable excuse, is an offence.  General penalties for non-compliance vary amongst jurisdictions but range from $750 for individuals and $3750 for corporations (in Queensland) to $5500 for individuals and $11,000 for corporations (in New South Wales). 

This Determination commences on 26 May 2005.  It revokes the Determination of Markings for Films made on 6 December 2000 and the Determination of Markings for Computer Games made on 14 December 1995.  The Determination is prospective in operation and includes a transitional provision to deal with the marking of films and computer games classified prior to commencement. 

Purpose and operation of the Determination

The objective of this Determination is to ensure that consumers have ready access to clear classification information to inform their choices about films and computer games.  This objective is achieved by:

• creating distinctive classification markings
• requiring the markings to be clear and readable
• requiring the markings are placed on films, computer games and certain related advertising so as to be visibly prominent and helpful to consumers
• providing flexibility in design to enable the markings to be applied in all media environments. 

The markings

In recognition of the variety of different contexts within which classification information is required by consumers, and the diverse nature of those contexts, the Determination includes a range of marking options.  These options are prescribed in the Determination and illustrated in Schedule 1.  Some examples of the new coloured markings and the markings that were in force under the previous determinations are set out in Attachment 1.

The new markings give practical effect to the Classification (Publications, Films and Computer Games) Amendment Act 2004, which will also come into force on 26 May 2005.  That Act amended the classification types in section 7 of the Act to provide uniform names for the film and computer games classifications.  The new names ensure a visual distinction between advisory (G, PG, M) and restricted (MA15+, R18+, X18+) classifications. 

The new markings effectively address the policy problems that gave rise to the Amendment Act, namely the poor awareness of the computer games classification scheme, inadequate understanding of the difference between the advisory and legally restricted classifications and confusion regarding the M and MA (now MA15+) classifications.  This is achieved by common markings for films and computer games, the use of distinctively coloured symbols and incorporation of the word “Restricted” on the relevant classification symbols. 

Display of the markings

The places in which the markings are to be displayed and the manner in which the markings are to be displayed are set out in Part 3 of the Determination.

There are a number of general requirements in respect of the manner of display of the markings to which there are limited exceptions.  The general requirements include that the marking must:

• be clearly legible, in high contrast and not obscured
• be coloured (in accordance with prescribed values) except in black and white or monochrome environments
• use prescribed fonts for classification symbols and boxes
• be placed in the lower left corner of the front face of the thing on which the marking appears (with capacity for some variation under certain circumstances).

The places where markings are required to be displayed include:

• on computer games available for play in a public place (for example “arcade games”)
• before screening of films (other than films on celluloid) and display of computer games
• on the casings of storage devices for films and computer games (for example videocassettes, discs, cartridges and memory sticks) and on the containers for such storage devices (for example computer game and DVD boxes)
• in film directories and guides
• in print advertising (other than that which exceeds 25000cm2) for films and computer games
• in internet advertising for films and computer games
• before or during moving image advertisements for films and computer games and on storage devices comprised solely of advertising material
• on packaging of products containing samples and certain cross promotional advertisements.

At a policy level, the principles which underpin the options regarding the manner of display of markings are:

1. Sources of classification information that are of use to consumers must display prominent markings, including the various design elements (ie classification symbol, classification description and consumer advice).

2.       However, sources of classification information that are smaller contain fewer design elements in recognition of the limited amount of space for the marking.

3.       Also, the information required in screen contexts reflects the capacity of those environments to practically accommodate the marking. 

4.       Where there is no capability to add the classification marking and the marking is less crucial, an exception may be available.  Also, large billboards, window clings, standees and display bins, which by their nature are of negligible value to consumers as a source of classification information, are excluded from the marking requirements.

Issues giving rise to the need for the Determination

The issuing of this Determination was in response to the following:

• the need for consequential amendments to the previous determinations to give effect to the Classification (Publications, Films and Computer Games) Amendment Act 2004

• the outdated nature of the previous determinations in respect of the marking of emerging technologies which blur the distinction between “films” and “computer games”, new storage devices and current marketing techniques

• market research, design, location and positioning advice obtained by the OFLC which has indicated the effectiveness of the previous markings could be enhanced

• recognition that the previous determinations included regulation for which there was not a net public benefit (for example, the requirement for large billboards to carry markings). 

Likely impact of the Determination

The Determination will increase the visibility of classification information (including consumer advice) and thereby support consumers choosing films and computer games for themselves and those in their care.  The use of common markings for films and computer games will increase awareness of the computer games classification scheme.  The coloured markings and the incorporation of the word “Restricted” into the relevant markings will assist consumers, particularly parents, to readily distinguish between the classifications.  Standardised placement of the markings will increase their prominence and accessibility. 

The main impact on the film and computer games distribution and sales sectors is changing the designs of the markings, including the introduction of colour. While some of the new markings are significantly different in appearance to the current markings, the effects of the new requirements do not substantially alter existing regulatory arrangements, in that markings are already required on products and product advertising.  In some circumstances, the new determination has added new requirements for new products and advertising methods and removed requirements where they have not been shown to be effective. 

Consultation regarding the development of the Determination

The development of this Determination has involved extensive public and industry consultation over 15 months.  Key documents have been posted on OFLC website (www.oflc.gov.au) throughout the review, including the discussion paper and proposed designs.

Specifically, public and industry input has been achieved through:

• focus group testing of marking options

• 48 stakeholder briefings and consultation meetings

• receipt and consideration of 1814 responses to an online questionnaire (on the OFLC’s website) regarding the marking options

• issuing 160 copies of a discussion paper about the review in August 2004 (a call for public submissions was placed The Weekend Australian on Saturday 21 August 2004 and on the OFLC website); and receipt and consideration of 31 submissions in response

• issuing over 700 stakeholders with a summary of the drafting instructions for the new Determination in December 2004

• issuing a consultation draft of this determination and plain English explanation of the clauses to peak industry bodies in May 2005

• receipt and consideration of 37 supplementary written submissions and other correspondence regarding the drafting instructions, draft determination and other issues related to the review.

Also, this Determination has been developed in consultation with all jurisdictions participating in the national classification scheme. 

Application of the Determination to media not subject to complementary classification enforcement laws

Broadcasting is not regulated under the Act.  However, various provisions of the Broadcasting Services Act 1992 refer to the film classification system administered by the Office of Film and

Literature Classification (OFLC).  These include provisions dealing with regulatory arrangements for subscription television, commercial television, community television, open narrowcasting television services and datacasting services[1].  Accordingly, the Determination has been framed so that it is capable of being applied under these provisions.

Documents referred to in the Determination

• Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth
  • Determination of Markings for Films (GN  50, 20 December 2000)
  • Determination of Markings for Computer Games (GN 50, 20 December 1995)

• Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 of the Australian Capital Territory
• Classification (Publications, Films and Computer Games) Enforcement Act 1995 of New South Wales
• Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 of Victoria
• Classification of Films Act 1991 of Queensland
• Classification of Computer Games and Images Act 1995 of Queensland
• Classification (Publications, Films and Computer Games) Act 1995 of South Australia
• Censorship Act 1996 of Western Australia
• Classification (Publications, Films and Computer Games) Enforcement Act 1995 of Tasmania
• Classification of Publications, Films and Computer Games Act 1995 of the Northern Territory.

Legislative instrument status

The Determination is a legislative instrument for the purposes of the Legislative Instruments Act 2003 (LIA). In accordance with sections 44(1) and 55(1) of the LIA, the Determination is not subject to disallowance or sunsetting.

Desmond Matthew Clark

DIRECTOR OF THE CLASSIFICATION BOARD

25 May 2005

ATTACHMENT 1

Table 1:  Comparison of examples of some of the new and previous markings

[1] See, for example, Broadcasting Services Act 1992 – sections 100; 119; 123 and Schedule 6, Part 4, Clause 28.