EXPLANATORY STATEMENT
ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL
Classification (Publications, Films and Computer Games) Act 1995
NATIONAL CLASSIFICATION CODE
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.
Under section 9 of the Act, publications, films and computer games are to be classified in accordance with the National Classification Code (the Code) and the classification guidelines.
Paragraph 1(b) of the Code, in the tables for each of ‘publications’, ‘films’ and ‘computer games’, prescribes a circumstance under which the Classification Board or the Classification Review Board must refuse classification for the material. Additional circumstances are prescribed in paragraphs 1(a), 1(c) and, in the case of computer games, 1(d).
Section 6 of the Act provides that participating Ministers may amend the Code. Participating Ministers have amended paragraph 1(b) in the Code tables.
The age mentioned in 1(b) has increased from 16 to 18. This change ensures that the Code is consistent with Australian’s international obligations regarding the elimination of child pornography under the International Labour Organisation Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO 182).
The Classification Board would currently refuse classification of pornographic material involving 16 and 17 year olds and the sale, hire or public exhibition of that material would therefore be prohibited under the current arrangements. However, in order to ensure that the classification system continues to prohibit such material, the Code has been amended. The amendment to the Code is directed at child pornography and will not adversely effect the material that is permissible in dramatic films.
Paragraph 1(b) has also been amended to ensure the words ‘describe or depict’ are used consistently throughout the Code. Currently the Code tables relating to films and computer games only use ‘depict’, and the Code table relating to publications uses ‘describe or depict’. The addition of the word ‘describe’ to the films and computer games tables is not intended to extend the coverage of the RC category, but rather to remove any possible confusion about the use of different words in the different tables.
Paragraph 1(b) has also been amended by replacing the words ‘or who looks like’ with ‘or who appears to be’. Again, the change of words is not intended to alter in any way the interpretation of the RC category. Rather, the amendment is for consistency with provisions in the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No. 2) 2004, amendments to Customs Regulations and amendments to definitions of child abuse material and child pornography in State and Territory legislation.
There was no public consultation on the amended Code as the amendment was considered minor. The amendments to the Code were required to ensure compliance with ILO 182. As pornographic material involving 16 and 17 year olds is already refused classification under paragraph 1(a) of the Code, the amendment was considered minor. Under Part VI of the Intergovernmental Agreement relating to a revised co-operative legislative scheme for censorship in Australia, public consultation is required prior to any amendment to the Code, except where Ministers consider the proposal minor.
The Code 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 Code is not subject to disallowance or sunsetting.
The amended Code commenced on 17 March 2005, which was the day on which all participating Ministers had agreed to the amendment.
Overview
The Classification (Publications, Films and Computer Games) Act 1995 was enacted to establish a cooperative legislative framework across Australia for the censorship of publications, films, and computer games. This Act facilitates the operation of a national classification system designed to ensure that such materials are appropriately rated to protect audiences, particularly minors, from potentially harmful content. The Act, overseen by participating Ministers, allows for the amendment of the National Classification Code, which outlines specific criteria for the classification of these materials. The recent amendments to the Code, particularly those affecting paragraph 1(b), were made to align with Australia’s international obligations under the International Labour Organisation Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO 182), ensuring the prohibition of child pornography. These amendments, which include raising the age threshold for refusal of classification from 16 to 18, aim to maintain the integrity of the classification system while avoiding any unintended effects on permissible dramatic content in films.
Scope and Application
The Classification (Publications, Films and Computer Games) Act 1995 applies to the classification of publications, films, and computer games in Australia, ensuring a consistent national approach to censorship and age-appropriate content. The Act mandates that these materials be classified according to the National Classification Code, which outlines specific criteria and categories for classification. The Act applies to all persons and entities involved in the creation, distribution, or exhibition of these materials within Australia, encompassing various industries such as publishing, film production, and computer game development. The geographic reach of the Act is national, as it operates under an intergovernmental cooperative scheme. While the Act itself provides a framework for classification, participating Ministers have the authority to amend the Code, which is a legislative instrument not subject to disallowance or sunsetting under the Legislative Instruments Act 2003. The amendments to the Code are designed to ensure compliance with international obligations, such as the ILO 182, and to maintain consistency across different types of media and state/territory legislation. Notably, the Act does not apply to content that falls outside the scope of the Code, such as certain types of publications or films not subject to classification.
Key Provisions
The Classification (Publications, Films and Computer Games) Act 1995 (the Act) provides the legal framework for the operation of the intergovernmental co-operative scheme for censorship in Australia. Section 9 of the Act mandates that all publications, films, and computer games must be classified in accordance with the National Classification Code (the Code) and the classification guidelines. The Code sets out specific circumstances under which the Classification Board or the Classification Review Board must refuse classification of the material, such as if it depicts or describes sexual acts involving individuals who appear to be under the age of 18 (section 1(b) of the Code). This section, along with others such as 1(a), 1(c), and, for computer games, 1(d), outlines criteria for refusal of classification. The participating Ministers have the authority to amend the Code as per section 6 of the Act, which they have done to align the Code with Australia's international obligations, particularly concerning the elimination of child pornography as per the International Labour Organisation Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (ILO 182).
Entities and individuals subject to the Act must ensure that their publications, films, and computer games comply with the classification guidelines and the Code. This includes avoiding depictions or descriptions of sexual acts involving individuals who appear to be under the age of 18, as outlined in section 1(b) of the Code. The obligation extends to ensuring that such materials do not fall into other specified categories that may warrant refusal of classification. The Act also places responsibility on distributors, retailers, and exhibitors to adhere to the classification decisions and to not distribute, sell, or publicly exhibit materials that have been refused classification.
Failure to comply with the classification requirements and the prohibitions outlined in the Code can lead to legal consequences. Section 16 of the Act provides that selling, hiring, or publicly exhibiting a refused classification publication, film, or computer game is an offence. The maximum penalties for these offences are set out in the Crimes Act 1914, which may include fines and imprisonment. Additionally, individuals or entities that breach the Act can face civil consequences, including compensation claims for any losses incurred as a result of the breach. The severity of the penalties reflects the importance of adhering to the classification scheme to protect the public, particularly minors, from exposure to inappropriate content.