An Act relating to the classification of publications, films and computer games, and related matters
Part 1—Preliminary
1 Short title
This Act may be cited as the Classification (Publications, Films and Computer Games) Act 1995.
2 Commencement
(1) Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.
(2) Subject to subsection (3), the remaining provisions of this Act commence on a day to be fixed by Proclamation.
(3) If the provisions referred to in subsection (2) do not commence under that subsection within the period of 12 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.
3 Purpose
The main purpose of this Act is to provide for the classification of publications, films and computer games for the Australian Capital Territory. This Act is intended to form part of a Commonwealth/State/Territory scheme for the classification of publications, films and computer games and for the enforcement of those classifications.
Note: Provisions dealing with the consequences of not having material classified and the enforcement of classification decisions are to be found in complementary laws of the States and Territories.
4 Powers and functions under State or Territory laws
The Board, the Review Board, the Director and the Convenor may exercise powers and perform functions relating to the classification of publications, films and computer games that are conferred on them under an arrangement between the Commonwealth and a State or the Commonwealth and the Northern Territory.
4A Concurrent operation of State and Territory laws
(1) This Act is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
(2) Without limiting subsection (1), this Act is not intended to exclude or limit the concurrent operation of a law of a State or Territory that makes:
(a) an act or omission that is an offence against a provision of this Act; or
(b) a similar act or omission;
an offence against the law of the State or Territory.
(3) Subsection (2) applies even if the law of the State or Territory does any one or more of the following:
(a) provides for a penalty for the offence that differs from the penalty provided for in this Act;
(b) provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Act;
(c) provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Act.
5 Definitions
In this Act, unless the contrary intention appears:
ACNC type of entity means an entity that meets the description of a type of entity in column 1 of the table in subsection 25‑5(5) of the Australian Charities and Not‑for‑profits Commission Act 2012.
additional content in a film that also comprises a classified film or an exempt film includes, but is not limited to:
(a) additional scenes for the classified film or exempt film (such as alternative endings or deleted scenes); and
(b) a film of the making of the classified film or exempt film; and
(c) interviews with, and commentaries by, directors, actors and other persons involved with the making of the classified film or exempt film; and
(d) such other material as is prescribed by the regulations;
but does not include:
(e) a work; or
(f) such other material as is prescribed by the regulations.
additional content assessor means a person who is authorised by the Director under section 22D.
add‑on means a computer program, data associated with a computer program or a computer program and any associated data referred to in subsection 5A(2).
advertisement for a publication, a film or a computer game means any form of advertising for the publication, film or game, and includes:
(a) advertising, whether visual or audible, whether in the form of written or spoken words or other sounds and whether in a book, paper, magazine, poster, photograph, sketch, program, film or slide or in any other form; and
(b) advertising on a container or wrapping enclosing the publication, film or game; and
(c) advertising on the internet;
but does not include:
(d) advertising for an exempt film or exempt computer game; or
(e) advertising, in an imported publication, for a publication, film or computer game that has not been published in Australia; or
(f) advertising, in an imported film or computer game that is in a form that cannot be modified, for a film or computer game that has not been published in Australia (the advertised film or game), whether or not the advertised film or game is later published in Australia; or
(g) advertising by means of a product:
(i) that refers to or is derived from the publication, film or computer game; and
(ii) that is primarily intended to be sold or distributed to the general public or to a section of the general public; and
(iii) that a reasonable person would not consider to be a primary source of classification information for consumers about the publication, film or computer game.
adult means a person who is 18 or older.
approved classification tool: see subsection 22CA(2).
authorised television series assessor means a person authorised in accordance with the scheme determined under section 14B to prepare assessments of television series films.
Board means the Classification Board.
business day means a day other than a Saturday, Sunday or public holiday.
classifiable elements has the same meaning as in the Guidelines determined under subsection 12(1) and as in force from time to time.
classification certificate means a certificate issued under section 25.
classified means classified under this Act.
Code means the National Classification Code, set out in the Schedule to this Act as originally enacted, as amended in accordance with section 6.
computer generated image means an image (including an image in the form of text) produced by use of a computer on a computer monitor, television screen, liquid crystal display or similar medium from electronically recorded data.
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
constitutional trade or commerce means trade or commerce:
(a) between Australia and a place outside Australia; or
(b) among the States; or
(c) between a State and a Territory; or
(d) within a Territory; or
(e) between 2 Territories.
contentious material, in relation to a film or computer game, means material that would be likely to cause it to be classified:
(a) for a film—M or a higher classification; or
(b) for a computer game—M or a higher classification.
Convenor means the Convenor of the Review Board.
CSC (short for Commonwealth Superannuation Corporation) has the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011.
decision means a decision of the Board:
(a) to classify or refuse to classify a publication, film or computer game (including a decision of the Board under section 39 or 97A); or
(b) to determine the consumer advice to apply to a publication, film or computer game; or
(c) to approve or refuse to approve an advertisement for a publication, film or computer game (including a decision of the Board under section 39) or to impose conditions on such an approval; or
(d) to assess or refuse to assess the likely classification of an unclassified film or an unclassified computer game; or
(da) to revoke an assessment of the likely classification of an unclassified film or an unclassified computer game; or
(e) to decline to deal with or to deal further with an application under this Act; or
(f) to make or refuse to make a declaration under subsection 13(3); or
(g) to revoke such a declaration; or
(h) to impose a condition under section 13A; or
(i) to revoke the classification of a film or computer game under section 21A; or
(ia) to revoke the classification of a film under section 21AA; or
(ib) to revoke the classification of a computer game under section 21AC; or
(j) to revoke the classification of, or consumer advice for, a publication, film or computer game under section 22B.
demonstrate includes exhibit, display, screen, play or make available for playing.
Deputy Director means the Deputy Director of the Board.
determined markings means markings determined under paragraph 8(1)(a).
Director means the Director of the Board.
enforcement application means an application that is made:
(a) by the Commonwealth, a State or a Territory, or by an authority or agency of the Commonwealth, a State or a Territory; and
(b) for the purpose of investigating or prosecuting an offence against a law of the Commonwealth, a State or a Territory.
exempt computer game has the meaning given by section 5B.
exempt film has the meaning given by section 5B.
film includes a cinematograph film, a slide, video tape and video disc and any other form of recording from which a visual image, including a computer generated image, can be produced (together with its sound track), but does not include:
(a) a computer game; or
(b) an advertisement for a publication, a film or a computer game.
Finance Minister means the Minister administering the Public Governance, Performance and Accountability Act 2013.
interactive film means a film to which subsection 14(4) applies.
interactive game means a game in which the way the game proceeds and the result achieved at various stages of the game is determined in response to the decisions, inputs and direct involvement of the player.
member means a member of the Board, and includes a temporary member.
minor means a person under 18.
participating Minister means a Minister of a State or Territory who is responsible for censorship matters where the State or Territory is a participant in the scheme referred to in section 3, but does not include such a Minister in relation to action to be taken under a provision of this Act if:
(a) the action relates to publications, films or computer games; and
(b) the State or Territory does not participate in the scheme in relation to publications, films or computer games, as the case may be.
publication means any written or pictorial matter, but does not include:
(a) a film; or
(b) a computer game; or
(c) an advertisement for a publication, a film or a computer game.
publish includes sell, offer for sale, let on hire, exhibit, display, distribute and demonstrate.
Review Board means the Classification Review Board.
social sciences has the meaning given by section 5C.
submittable publication means an unclassified publication that, having regard to section 9A or to the Code and the classification guidelines to the extent that they relate to publications, contains depictions or descriptions that:
(a) are likely to cause the publication to be classified RC; or
(b) are likely to cause offence to a reasonable adult to the extent that the publication should not be sold or displayed as an unrestricted publication; or
(c) are unsuitable for a minor to see or read.
television series film means a film that comprises:
(a) one or more episodes of a television series; or
(b) one or more episodes of a television series and series‑related material if that material does not appear to be self‑contained and produced for viewing as a discrete entity.
temporary member means a person appointed under section 50.
work means:
(a) a cinematic composition that appears to be:
(i) self‑contained; and
(ii) produced for viewing as a discrete entity; or
(aa) a television program; or
(b) a computer game that is produced for playing as a discrete entity;
but does not include an advertisement.
5A Meaning of computer game
(1) A computer game is a computer program and any associated data capable of generating a display on a computer monitor, television screen, liquid crystal display or similar medium that allows the playing of an interactive game.
(2) A computer program, data associated with a computer program or a computer program and any associated data that:
(a) is capable of generating new elements or additional levels into a game (the original game) that is a computer game under subsection (1); and
(b) is contained in a device separate from that containing the original game;
is also a computer game.
(3) However, a computer game does not include an advertisement for a publication, film or computer game.
5B Exempt films and exempt computer games
(1) Subject to subsection (3), a film specified in this table is an exempt film. Applications for classification of exempt films are not necessary.
Exempt films |
Item | Type | Description |
1 | Business | A film of a promotional, technical or similar nature for use in the course of a business or trade |
2 | Accounting | A film for use in the keeping or verification of accounts |
3 | Professional | A film of a promotional, technical or similar nature for use in the course of a profession |
4 | Scientific | A film for use pursuant to a branch of knowledge conducted on objective principles involving the systemised observation of, and experiment with, phenomena |
5 | Educational | A film whose main purpose is for training, instruction or reference, as a manual, a lesson, an encyclopaedia or a guide |
6 | Current affairs | A film wholly or mainly comprising news reports or information about, or analysis of, current issues or events of public interest or importance |
7 | Hobbyist | A film wholly or mainly comprising a documentary record of a hobby or activity |
8 | Sporting | A film wholly or mainly comprising a documentary record of a sporting event |
9 | Family | A film wholly or mainly comprising a documentary record of a family event or activity |
10 | Live performance | A film wholly or mainly comprising a documentary record of a live artistic performance or that is used within such a performance |
11 | Musical presentation | A film wholly or mainly comprising a musical presentation |
12 | Religious | A film wholly or mainly comprising a documentary record of a religious event or activity |
13 | Community or cultural | A film wholly or mainly comprising a documentary record of a community or cultural activity or event |
14 | Social sciences | A film wholly or mainly comprising information about, or analysis of, subjects relating to the social sciences |
15 | Natural history | A natural history film, or any film depicting wholly or mainly natural scenery |
(2) Subject to subsection (3), a computer game is an exempt computer game if it forms part of or is included in computer software specified in this table. Applications for classification of exempt computer games are not necessary.
Exempt computer games |
Item | Type | Description |
1 | Business | Software for use in the course of a business or trade |
2 | Accounting | Software for use in the keeping or verification of accounts |
3 | Professional | Software for use in the course of a profession |
4 | Scientific | Software for use pursuant to a branch of knowledge conducted on objective principles involving the systemised observation of, and experiment with, phenomena |
5 | Educational | Software whose main purpose is for training, instruction or reference, as a manual, a lesson, an encyclopaedia or a guide |
Exceptions
(3) However, a film or computer game is not an exempt film or an exempt computer game if it contains:
(a) an advertisement that has been refused approval; or
(b) an advertisement for an unclassified film or an unclassified computer game:
(i) that has been assessed in accordance with section 31 or under section 33 as being likely to be classified M or a higher classification; or
(ii) the likely classification of which has not been assessed in accordance with section 31 or under section 33; or
(c) an advertisement for a film, or for a computer game, that has been classified M or a higher classification; or
(d) material that would be likely to cause the film or computer game to be classified M or a higher classification.
5C Meaning of social sciences
(1) For the purposes of this Act, social sciences means the following fields:
(a) economics;
(b) geography;
(c) anthropology;
(d) linguistics;
(e) such other fields (if any) as are specified in an instrument under subsection (2).
(2) The Minister may, by legislative instrument, specify fields for the purposes of paragraph (1)(e).
6 Amendments of the Code
(1) The Code may be amended from time to time in accordance with this section.
(2) If the Minister and each participating Minister agree to an amendment of the Code, the Code is taken to be amended accordingly.
(3) If the Code is amended, the Minister must cause a copy of the amended Code to be published in the Gazette.
6A Application of the Criminal Code
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Part 2—Classification
Division 1—Preliminary
7 Types of classifications
(1) The following are the different types of classifications for publications in ascending order:
Unrestricted
Category 1 restricted
Category 2 restricted
RC Refused Classification.
(2) The following are the different types of classifications for films in ascending order:
G General
PG Parental Guidance
M Mature
MA 15+ Mature Accompanied
R 18+ Restricted
X 18+ Restricted
RC Refused Classification.
(3) The following are the different types of classifications for computer games in ascending order:
G General
PG Parental Guidance
M Mature
MA 15+ Mature Accompanied
R 18+ Restricted
RC Refused Classification.
(4) In subsections (1) to (3), text that is not in bold is included by way of explanation and does not form part of the classification.
8 Determined markings and consumer advice
(1) The Minister may, by legislative instrument, determine:
(a) markings for each type of classification giving information about the classification; and
(b) principles relating to the display of the markings; and
(c) principles relating to the display of consumer advice for publications, films and computer games.
(1A) Without limiting paragraph (1)(b), the Minister may determine principles relating to the manner in which the markings are to be displayed.
(1B) Without limiting paragraph (1)(c), the Minister may determine principles relating to the manner in which consumer advice is to be displayed.
(2) A determination may specify additional material for markings for an add‑on.
(3) A determination may specify additional material for markings for a publication that has been classified subject to a condition under section 13A.
(3A) Each of the following must display markings and consumer advice in accordance with any determinations under this section:
(a) a classified film;
(b) a classified computer game;
(c) a classified publication;
(d) an advertisement for such a film, computer game or publication.
Note: Provisions dealing with the consequences of not displaying markings and consumer advice in accordance with a determination under this section are to be found in complementary laws of the States and Territories.
(3B) Subsection (3A) applies to:
(a) a film, computer game or publication; or
(b) an advertisement for a film, computer game or publication;
(the relevant material) where:
(c) the publisher of the relevant material is a constitutional corporation; or
(d) the relevant material is published in the course of, or in relation to, constitutional trade or commerce; or
(e) the relevant material is published in the course of, or in relation to, the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth; or
(f) the relevant material is published using a postal, telegraphic, telephonic or other like service (within the meaning of paragraph 51(v) of the Constitution); or
(g) the relevant material is published in a Territory or in a Commonwealth place.
8AA Use of markings in relation to goods other than films etc.
Using a determined marking in relation to certain goods
(1) A person commits an offence if:
(a) the person, in trade or commerce, uses a marking in relation to goods; and
(b) the marking is a determined marking; and
(c) the goods are not:
(i) a publication, film or computer game; or
(ii) goods used to promote a publication, film or computer game that has the classification for that marking.
Penalty: 20 penalty units.
Using a determined marking in relation to certain services
(2) A person commits an offence if:
(a) the person, in trade or commerce, uses a marking in relation to a service; and
(b) the marking is a determined marking; and
(c) the service is not for the purposes of the classification system provided for by this Act or a corresponding law of a State or Territory.
Penalty: 20 penalty units.
Selling etc. certain goods with a determined marking
(3) A person commits an offence if:
(a) a determined marking is used in relation to goods; and
(b) the person does any of the following with the goods:
(i) imports them into Australia for sale;
(ii) sells them;
(iii) offers them for sale;
(iv) lets them on hire; and
(c) the goods are not:
(i) a publication, film or computer game; or
(ii) goods used to promote a publication, film or computer game that has the classification for that marking.
Penalty: 20 penalty units.
Extended meaning of determined marking
(4) For the purposes of this section, a determined marking includes a marking so closely resembling a determined marking as to be likely to be mistaken for it.
Constitutional reach
(5) This section has effect only if one or more of the following paragraphs applies:
(a) the conduct constituting the offence occurs to any extent outside Australia;
(b) the conduct constituting the offence occurs within a Territory or a Commonwealth place;
(c) the goods belong to a constitutional corporation;
(d) the person is a constitutional corporation;
(e) the goods are provided in the course of, or intended for, constitutional trade or commerce;
(f) the conduct constituting the offence is for the purposes of constitutional trade or commerce;
(g) the conduct constituting the offence involves the use of postal, telegraphic, telephonic and other like services (within the meaning of paragraph 51(v) of the Constitution).
8A Notice about classifications
The Minister may, in writing, approve a form for a notice about classifications.
Note: Provisions that require sellers and exhibitors of classified material to display a notice about classifications where the material is sold or exhibited can be found in complementary laws of the States and Territories.
Division 2—Classification by the Board
9 Classification in accordance with the Code
Subject to section 9A, publications, films and computer games are to be classified in accordance with the Code and the classification guidelines.
9A Refused Classification for publications, films or computer games that advocate terrorist acts
(1) A publication, film or computer game that advocates the doing of a terrorist act must be classified RC.
(2) Subject to subsection (3), for the purposes of this section, a publication, film or computer game advocates the doing of a terrorist act if:
(a) it directly or indirectly counsels or urges the doing of a terrorist act; or
(b) it directly or indirectly provides instruction on the doing of a terrorist act; or
(c) it directly praises the doing of a terrorist act in circumstances where there is a substantial risk that such praise might have the effect of leading a person (regardless of his or her age or any mental impairment (within the meaning of section 7.3 of the Criminal Code) that the person might suffer) to engage in a terrorist act.
(3) A publication, film or computer game does not advocate the doing of a terrorist act if it depicts or describes a terrorist act, but the depiction or description could reasonably be considered to be done merely as part of public discussion or debate or as entertainment or satire.
(4) In this section:
terrorist act has the meaning given by section 100.1 of the Criminal Code (no matter where the action occurs, the threat of action is made or the action, if carried out, would occur).
Note: The definition of terrorist act in that section covers actions or threats of actions.
10 Classifications in writing etc.
(1) Classifications of publications, films and computer games are to be made by the Board in writing on application.
(2) Subsection (1) does not require an application for a reclassification of a publication, film or computer game under section 39 or a reclassification of a publication or film under section 97A.
(3) Subsection (1) does not require an application for a classification required by subsection 22CH(4).
11 Matters to be considered in classification
The matters to be taken into account in making a decision on the classification of a publication, a film or a computer game include:
(a) the standards of morality, decency and propriety generally accepted by reasonable adults; and
(b) the literary, artistic or educational merit (if any) of the publication, film or computer game; and
(c) the general character of the publication, film or computer game, including whether it is of a medical, legal or scientific character; and
(d) the persons or class of persons to or amongst whom it is published or is intended or likely to be published.
12 Classification guidelines
(1) The Minister may, with the agreement of each participating Minister, determine guidelines to assist the Board in applying the criteria in the Code.
(2) The Minister must cause a copy of the guidelines to be published in the Gazette.
(3) If the Minister and each participating Minister agree to an amendment of the guidelines, the guidelines are taken to be amended accordingly.
(4) If the guidelines are amended, the Minister must cause a copy of the amended guidelines to be published in the Gazette.
13 Applications for classification of publications
(1) An application for classification of a publication (other than an enforcement application—see section 22A) must be:
(a) in writing; and
(b) made in a form approved by the Director in writing; and
(c) signed by or on behalf of the applicant; and
(d) accompanied by:
(i) the prescribed fee for that category of publication; and
(ii) a copy of the publication.
Note: For an applicant that is the Commonwealth or a Commonwealth entity: see section 91A.
(2) If an application is made for classification of a publication that is an issue of a periodical (the original issue), the applicant may request that the classification granted for the original issue apply also to all or some future issues.
(3) The Board may, if the applicant pays the prescribed fee (if any), declare that the classification granted for the original issue applies also to:
(a) all future issues; or
(b) a specified number of future issues; or
(c) all future issues published within a specified period.
(4) In deciding whether to make a declaration under subsection (3), the Board must have regard to written principles determined by the Director and agreed to by the Minister. The Minister may only agree to the principles if the Minister has consulted the participating Ministers about them.
(5) If the Board makes a declaration under subsection (3) for some or all future issues of a publication and the Board is of the opinion that an issue of the publication covered by the declaration:
(a) contains material that, if the issue were being classified separately, would cause it to be classified with a higher classification than the original issue; or
(b) contains an advertisement that has been refused approval;
the Board must revoke the declaration so far as it affects that issue and any future issues. The Board must also revoke approval of any approved advertisement for those issues of the publication.
13A Conditions of certain classifications for publications
(1) The Board may, if it classifies a publication Unrestricted, impose a condition that it not be sold, displayed for sale or delivered unless it is contained in a sealed package.
(2) The Board may, if it classifies a publication Category 1 restricted, impose a condition that it not be sold, displayed for sale or delivered unless it is contained in a sealed package made of plain, opaque material.
14 Applications for classification of films
General rules
(1) An application for classification of a film (other than an enforcement application—see section 22A) must be:
(a) in writing; and
(b) made in a form approved by the Director in writing; and
(c) signed by or on behalf of the applicant; and
(d) accompanied by:
(ia) a copy of the film; and
(i) the prescribed fee for that category of film; and
(ii) an adequate written synopsis of the film in English that includes a statement or summary of any incidents, or of the plot, depicted or intended to be depicted by the film.
Note: For an applicant that is the Commonwealth or a Commonwealth entity: see section 91A.
(2) An application for classification of a film may be accompanied by a copy of any advertisement that is proposed to be used to advertise the film.
Additional rule for films comprising computer generated images
(4) If:
(a) an application is made for classification of a film (other than an enforcement application—see section 22A) that comprises a recording from which a computer generated image can be produced; and
(b) the recording enables a person using it to choose from 2 or more visual images the image that will be viewed;
the application must include particulars of any contentious material in the film and of the means by which access to that material may be gained.
(4A) Subsection (4) does not apply to an application for the classification of a film if the application is made only because the film became unclassified under section 21 because of a modification that consists only of a change to the title of the film.
Additional rules for films comprising classified films, exempt films and additional content
(5) If:
(a) an application is for classification of a film that comprises:
(i) one or more classified films and additional content; or
(ii) one or more classified films, one or more exempt films and additional content; or
(iii) one or more exempt films and additional content; and
(b) the applicant is of the opinion that the film would, if classified, be classified at a particular classification that is R 18+ or a lower classification; and
(c) a notice under section 22H is not in force in relation to the applicant;
the applicant may also submit with the application an assessment of the additional content prepared by an additional content assessor and signed by, or on behalf of, the applicant.
(6) An assessment under subsection (5) must:
(a) if the film includes one classified film—describe, and report on the impact of, any classifiable elements in the additional content that are at the same or higher level as the classified film; and
(b) if the film includes more than one classified film—describe, and report on the impact of, any classifiable elements in the additional content that are at the same or higher level as the classified film with the highest classification; and
(c) if the film does not include a classified film—describe, and report on the impact of, all classifiable elements in the additional content; and
(d) recommend a classification of the additional content; and
(e) recommend consumer advice appropriate to the additional content; and
(f) deal with any other matter prescribed by the regulations.
(7) If the Director or the Board disagrees with the recommended classification of the additional content, the Director must give a notice in writing to the applicant stating the particulars of the disagreement.
(8) If any of the following paragraphs applies in relation to the film, the notice under subsection (7) must also invite the applicant to make, within 14 days after receiving the notice, any additional submissions the applicant may wish to make before the Board makes a decision on the application:
(a) if the film includes one classified film—the Director or the Board is of the opinion that the film would, if classified, be classified at a higher classification than the classified film;
(b) if the film includes more than one classified film—the Director or the Board is of the opinion that the film would, if classified, be classified at a higher classification than the classified film with the highest classification;
(c) the film does not include a classified film.
14A Films consisting only of classified films
Despite any other provision of this Act, a film:
(a) that is contained on one device; and
(b) that consists only of 2 or more classified films;
is to be treated, for the purposes of this Act, as if each of the classified films were on a separate device.
14B Applications for television series films
(1) If:
(a) an application is made for classification of a film; and
(b) the film is a television series film; and
(c) at least one episode of the television series has, before the making of the application, been broadcast in Australia on a national broadcasting service, a commercial broadcasting service, a subscription broadcasting service or a community broadcasting service; and
(d) the applicant is of the opinion that the film would, if classified, be classified at a particular classification that is R 18+ or a lower classification;
the applicant may also submit with the application an assessment of the television series film prepared in accordance with subsection (2).
(1A) The episode referred to in paragraph (1)(c) need not be included in the television series film.
(2) An assessment of a kind referred to in subsection (1) must:
(a) satisfy the requirements specified in the scheme determined by the Minister under subsection (3); and
(b) be prepared by an authorised television series assessor; and
(c) be signed by, or on behalf of, the applicant.
(3) The Minister may, by legislative instrument, determine a scheme relating to the assessment of television series films.
(4) A scheme under subsection (3) may do the following:
(a) specify the requirements for the assessments of television series films;
(b) specify the basis on which assessments of television series films are to be made;
(c) specify the requirements for the authorisation of persons as authorised television series assessors under the scheme and for continued authorisation (including the circumstances in which such authorisation may be revoked or suspended);
(d) provide for a notice system that empowers the Director to give a notice (a barring notice) to a particular person in specified circumstances (including circumstances that relate to whether the Director is satisfied as to a matter or matters);
(e) specify the effect of a barring notice, which may include but is not limited to the following:
(i) providing that a person in respect of whom a barring notice is in force may not be authorised to make assessments of television series films;
(ii) providing that a person in respect of whom a barring notice is in force may not submit an application for classification under subsection (1);
(f) provide for review by the Administrative Appeals Tribunal of decisions under the scheme;
(g) confer functions and powers on the Board or the Director in relation to and for the purposes of the scheme;
(h) provide for administrative matters, such as the making of applications and the giving of notices;
(i) specify circumstances in which an assessment is taken to be misleading, incorrect or grossly inadequate for the purposes of section 21AB (without limiting those circumstances).
(5) The Minister must consult with participating Ministers before determining a scheme under subsection (3).
(6) In this section:
commercial broadcasting service has the same meaning as in the Broadcasting Services Act 1992.
community broadcasting service has the same meaning as in the Broadcasting Services Act 1992.
national broadcasting service has the same meaning as in the Broadcasting Services Act 1992.
subscription broadcasting service has the same meaning as in the Broadcasting Services Act 1992.
15 Discretion of Board
(1) If:
(a) an application is made for the classification as a film of a recording that contains a computer generated image; and
(b) the Board is of the opinion that the recording is more appropriately dealt with as a computer game having regard to:
(i) the definition of computer game in section 5A; and
(ii) the degree of interactivity involved; and
(iii) the nature of the visual images produced;
the Board must decline to deal with the application.
(1A) If:
(a) an application is made for the classification of material as a computer game; and
(b) the Board is of the opinion that the material is more appropriately dealt with as a film having regard to:
(i) the definition of film in section 5; and
(ii) whether, or the extent to which, the material is or involves an interactive game;
the Board must decline to deal with the application.
(2) If the Board declines to deal with the application under this section, the Director must, within 14 days after the decision is made:
(a) notify the applicant in writing of the decision and of the reasons for the decision; and
(b) if the application is not an enforcement application—invite the applicant to provide the additional material that is necessary for an application for classification of a computer game or of a film, as the case requires.
(3) If the application is not an enforcement application, the Board must deal with the application as an application for classification of a computer game or of a film, as the case requires, after receiving the additional material and fee required.
Note: For an applicant that is the Commonwealth or a Commonwealth entity: see section 91A.
(4) If the application is an enforcement application, the Board must deal with the application as an application for classification of a computer game or of a film, as the case requires, after receiving the applicant’s request that the Board do so. The applicant must pay any additional fee on or after making the request.
Note: For an applicant that is the Commonwealth or a Commonwealth entity: see section 91A.
16 Board may decline to deal with application if more than one work involved
(1) If:
(a) an application is made for classification of a film or computer game; and
(b) the film or game is contained on more than one device and each device contains a separate work;
the Board may decline to deal with the application.
(2) If the Board declines to deal with the application under this section, the Director must, within 14 days after the decision is made:
(a) notify the applicant in writing of the decision and of the reasons for the decision; and
(b) invite the applicant to submit an application for classification of each work as a separate film or computer game.
17 Applications for classification of computer games
(1) An application for classification of a computer game (other than an enforcement application—see section 22A) must be:
(a) in writing; and
(b) made in a form approved by the Director in writing; and
(c) signed by or on behalf of the applicant; and
(ca) accompanied by a copy of the game unless the game is an amusement or circuit board game that, in the opinion of the Board, is physically impracticable to submit to the Board’s premises for classification; and
(cb) if the application is for classification of a computer game that is an add‑on—accompanied by a copy of the computer game into which the add‑on is capable of generating new elements or additional levels; and
(d) accompanied by the prescribed fee for that category of game; and
(e) accompanied by a document setting out:
(i) the title of the game; and
(ii) the year of production; and
(iii) the name of the publisher; and
(iv) the country of origin; and
(v) a description of game play.
Note: For an applicant that is the Commonwealth or a Commonwealth entity: see section 91A.
(2) If any part of a computer game is likely to be regarded as containing contentious material, the application must also be accompanied by:
(a) particulars of that material and of the means by which access to it may be gained; or
(b) a separate recording of that material.
(2AA) Subsection (2) does not apply to an application for the classification of a computer game if the application is made only because the computer game became unclassified under section 21 because of a modification that consists only of a change to the title of the computer game.
(2A) If the application is for a computer game that is an add‑on, the Board must classify the add‑on with the computer game into which the add‑on is capable of generating new elements or additional levels.
(3) If:
(a) the applicant is of the opinion that the game would, if classified, be classified G, PG or M; and
(b) a notice under section 17C is not in force in relation to the applicant;
the applicant may also submit with the application:
(c) an assessment of the computer game, signed by or on behalf of the applicant and prepared by a person authorised by the Director for the purpose; and
(d) a copy of any advertisement that is proposed to be used to advertise the game.
(3A) An assessment under subsection (3) must:
(a) describe, and report on the impact of, any classifiable elements in the game; and
(b) recommend a classification of the game; and
(c) recommend consumer advice appropriate to the game.
(4) If the Director or the Board disagrees with the recommended classification, the Director must give a notice in writing to the applicant:
(a) stating the particulars of the disagreement; and
(b) inviting the applicant to make, within 14 days after receiving the notice, any additional submissions the applicant may wish to make before the Board makes a decision on the application.
(5) The Director may authorise a person for the purpose of subsection (3) only if the person has completed training approved by the Director in the making of assessments.
(6) The Director must not authorise a person for the purposes of subsection (3) if a notice under section 17B is in force in relation to the person.
17A Revocation of authorisation to assess certain computer games
(1) The Director may revoke an authorisation given to a person for the purpose of subsection 17(3) if the Director is satisfied that one or more of the conditions mentioned in subsection (2) apply to the person.
(2) The conditions are as follows:
(a) the person has prepared an assessment of a computer game that contains classifiable elements that:
(i) were not brought to the Board’s attention in accordance with paragraph 17(3A)(a) before the classification was made; or
(ii) were brought to the Board’s attention in accordance with paragraph 17(3A)(a) before the classification was made but the assessment of the elements was misleading, incorrect or grossly inadequate;
(b) if the Director has requested that the person complete further training approved by the Director in the making of assessments of computer games—the person has not completed the training;
(c) the person has prepared at least 2 assessments under subsection 17(3) which contain misleading, incorrect or grossly inadequate information;
(d) any other conditions prescribed by the regulations.
Note: The regulations may prescribe circumstances in which an assessment is taken to be misleading, incorrect or grossly inadequate, or to contain misleading, incorrect or grossly inadequate information: see subsection 93(2).
17B Barring notice to assessors of certain computer games
(1) The Director may give a written notice to a person if the Director is satisfied that:
(a) both of the following apply:
(i) the Board classified a computer game taking into account an assessment of the computer game prepared by the person;
(ii) the Board has revoked the classification of the game under section 21A or 21AC; or
(b) the person has prepared at least 2 assessments under subsection 17(3) which contain misleading, incorrect or grossly inadequate information.
Note 1: If the Director gives a notice to a person under this subsection, the person cannot be authorised to prepare assessments of computer games while the notice remains in force: see subsection 17(6).
Note 2: The regulations may prescribe circumstances in which an assessment is taken to contain misleading, incorrect or grossly inadequate information: see subsection 93(2).
(2) The notice takes effect from the date specified in the notice and continues in force for the period specified in the notice. The period must not exceed 3 years.
17C Barring notice to applicant for classification of computer games
(1) The Director may give a written notice to a person if:
(a) the person has submitted at least 2 applications that were accompanied by assessments under subsection 17(3); and
(b) the assessments contained misleading, incorrect or grossly inadequate information; and
(c) as a result of those assessments, the Director revoked the authorisation of the person who prepared them (see section 17A).
Note 1: If the Director gives a notice to a person under this subsection, the person cannot submit an assessment of a computer game with an application for classification of the game while the notice remains in force: see subsection 17(3).
Note 2: The regulations may prescribe circumstances in which an assessment is taken to contain misleading, incorrect or grossly inadequate information: see subsection 93(2).
(2) The notice takes effect from the date specified in the notice and continues in force for the period specified in the notice. The period must not exceed 3 years.
17D Review by AAT
Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Director under section 17A, 17B or 17C.
18 Considered form of publication, film or computer game to be final
(1) The Board must assume, in classifying a publication, film or computer game, that the publication, film or game will be published only in the form in which it is considered for classification.
19 Screening of films and demonstration of computer games before classification
(1) The Board may decline to deal with an application for classification of a film or a computer game, or decline to deal further with the application, unless:
(a) the applicant:
(i) provides a copy of the film or game for screening or demonstration before the Board; or
(ii) for an amusement or circuit board game referred to in paragraph 17(1)(ca) or subsection 22A(3)—allows the Board access to the game; and
(b) in the opinion of the Board, the copy of the film or game provided is complete and is adequate to allow a proper consideration of the application.
(1A) The Board may decline to deal with an application for classification of an interactive film, or decline to deal further with the application, unless the applicant demonstrates the film before the Board.
(2) The Board may decline to deal with an application for classification of a computer game, or decline to deal further with the application, unless the applicant demonstrates the computer game before the Board.
(3) The Director must notify the applicant in writing of a decision under subsection (1), (1A) or (2).
(4) The applicant and not more than 4 representatives of the applicant, and any other persons approved by the Director, are entitled to be present at a screening or demonstration.
(5) A screening or demonstration must take place at a reasonable time and place specified by the Director.
(6) The Director may keep the copy of the film or game or, if the Director and the applicant agree, another copy of the film or game, for as long as the Director requires.
(7) Neither the Commonwealth nor a member is liable for any damage caused to a copy of a film or a computer game as a result of a screening or a demonstration.
20 Board to decide consumer advice for publications, films and computer games
(1) If the Board:
(a) classifies a film G, PG, M, MA 15+, R 18+ or X 18+; or
(b) classifies a computer game G, PG, M, MA 15+ or R 18+;
it must determine consumer advice giving information about the content of the film or game.
(2) If the Board classifies a publication Unrestricted, the Board may determine consumer advice giving information about the content of the publication.
20A Modifications of unclassified films and computer games that are later classified
(1) If:
(a) a film or computer game:
(i) is modified; and
(ii) is classified, in unmodified form, at a later time; and
(b) the modification is of a kind covered by subsection (2);
the film or computer game, as modified, is taken from that later time to have the same classification as the classified film or classified computer game.
(2) This subsection covers the following modifications:
(a) including or removing an advertisement, other than an advertisement to which section 22 applies;
(b) for a film—the addition or removal of navigation functions;
(c) for a film—the addition or removal of material which:
(i) provides a description or translation of the audio or visual content of the film; and
(ii) would not be likely to cause the film, as modified, to be given a higher classification than the classified film;
(d) a format change from 2D to 3D (or vice versa), if the format change would not be likely to cause the film or computer game, as modified, to be given a different classification to the classified film or classified computer game;
(e) modifications of a kind prescribed in a legislative instrument made by the Minister for the purposes of this paragraph.
21 Declassification of classified films or computer games that are modified
(1) Subject to subsection (2), if a classified film or a classified computer game is modified, the film or game, as modified, becomes unclassified when the modification is made.
(2) Subsection (1) does not apply to a modification that consists of:
(a) including or removing an advertisement, other than an advertisement to which section 22 applies; or
(b) for an imported film or computer game that was in a form that cannot be modified and has subsequently been converted to a form that can be modified—removing, from the film or game, material that was advertising referred to in paragraph (f) of the definition of advertisement in section 5; or
(ba) a format change from 2D to 3D (or vice versa), if the format change would not be likely to cause the film or computer game, as modified, to be given a different classification to the classified film or classified computer game; or
(c) for a classified film—the addition or removal of navigation functions; or
(d) for a classified film—the addition or removal of material which:
(i) provides a description or translation of the audio or visual content of the film; and
(ii) would not be likely to cause the film to be given a higher classification.
Example: A film which has been classified has captions added for the hearing impaired. This addition would not cause the film to become unclassified under subsection 21(1).
(3) Subsection (1) does not apply to a modification of a kind prescribed in a legislative instrument made by the Minister for the purposes of this subsection.
21A Revocation of classification of films or computer games that are found to contain contentious material
If the Board is of the opinion that:
(a) a classified interactive film or a classified computer game contains contentious material (whether activated through use of a code or otherwise) that was not brought to the Board’s attention in accordance with subsection 14(4) or 17(2) before the classification was made; and
(b) if the Board had been aware of the material before the classification was made, it would have given the film or game a different classification;
the Board must revoke the classification, and must also revoke approval of any approved advertisement for the film or game.
21AA Revocation of classification of films containing additional content
The Board must revoke the classification of a film that has been classified taking into account an assessment prepared by an additional content assessor under subsection 14(5) if it is satisfied that:
(a) the additional content contains any classifiable elements that:
(i) were not brought to the Board’s attention in accordance with paragraph 14(6)(a), (b) or (c) before the classification was made; or
(ii) were brought to the Board’s attention in accordance with paragraph 14(6)(a), (b) or (c) before the classification was made but the assessment of the elements was misleading, incorrect or grossly inadequate; and
(b) if the Board had been aware of the matters mentioned in subparagraph (a)(i) or (ii) before the classification was made, it would have given the film a different classification.
Note: The regulations may prescribe circumstances in which an assessment is taken to be misleading, incorrect or grossly inadequate: see subsection 93(2).
21AB Revocation of classification of television series films
The Board must revoke the classification of a film that has been classified taking into account an assessment prepared by an authorised television series assessor under section 14B if the Board is satisfied that:
(a) the assessment was misleading, incorrect or grossly inadequate; and
(b) if the Board had been aware of the respects in which the assessment was misleading, incorrect or grossly inadequate before the classification was made, it would have given the film a different classification.
Note: The Minister’s determination under section 14B may prescribe circumstances in which an assessment is taken to be misleading, incorrect or grossly inadequate.
21AC Revocation of classification of computer games if assessment misleading etc.
The Board must revoke the classification of a computer game that has been classified taking into account an assessment prepared under subsection 17(3) if the Board is satisfied that:
(a) the computer game contains any classifiable elements that:
(i) were not brought to the Board’s attention in accordance with paragraph 17(3A)(a) before the classification was made; or
(ii) were brought to the Board’s attention in accordance with paragraph 17(3A)(a) before the classification was made but the assessment of the elements was misleading, incorrect or grossly inadequate; and
(b) if the Board had been aware of the matters mentioned in subparagraph (a)(i) or (ii) before the classification was made, it would have given the game a different classification.
Note: The regulations may prescribe circumstances in which an assessment is taken to be misleading, incorrect or grossly inadequate: see subsection 93(2).
22 Classification of publications, films or computer games containing advertisements
(1A) A publication must not be classified if it contains an advertisement that has been refused approval.
(1) An unclassified film (the first film) or unclassified computer game (the first game) must not be classified if it contains an advertisement:
(a) for a film or computer game with a higher classification than the classification the first film or first game would be given if it did not contain the advertisement; or
(b) for an unclassified film or unclassified computer game:
(i) that has been assessed in accordance with section 31 or under section 33 as being likely to have a higher classification than the classification the first film or first game would be given if it did not contain the advertisement; or
(ii) the likely classification of which has not been assessed in accordance with section 31 or under section 33; or
(c) that has been refused approval.
(2) Subsection (1A) or (1) does not prevent a publication, film or computer game from being classified if the application for the classification was an enforcement application.
22A Applications for classification for enforcement purposes
(1) An application for classification of a publication, film or computer game that is an enforcement application must be:
(a) in writing; and
(b) made in a form approved by the Director in writing; and
(c) signed by or on behalf of the applicant; and
(d) accompanied by a copy of the publication, film or computer game.
(2) The applicant must pay the prescribed fee for the application. However, the fee need not accompany the application.
Note: For an applicant that is the Commonwealth or a Commonwealth entity: see section 91A.
(3) An enforcement application for classification of a computer game does not have to be accompanied by a copy of the game if the game is an amusement or circuit board game that, in the opinion of the Board, is physically impracticable to submit to the Board’s premises for classification.
22B Classification of a publication, film or computer game that may be the same as or similar to a classified item
(1) The Board may proceed to classify a publication, film or computer game (the new item) if:
(a) an application is made for its classification; and
(b) the Board is of the opinion that the new item may be the same as or similar to another publication, film or game that has already been classified (the classified item); and
(c) the Board does not have a copy of the classified item and a copy is not available to it; and
(d) the Board is not able to ascertain from its records whether the items are identical.
(2) A classification by the Board of the new item is valid even though the Board may discover, after the classification of the new item, that it is the same as the classified item.
(3) If:
(a) the Board obtains a copy of the classified item; and
(b) the Board decides that it is the same as the new item but:
(i) the classifications for the classified item and the new item are different; or
(ii) the consumer advice for the classified item and the new item are different;
the Board must revoke the classification or consumer advice for the classified item.
22C Validation of Board decisions etc. on applications by law enforcement agencies
(1) A decision (the original decision) made by the Board (whether before or after the commencement of this section) on an application:
(a) made by or on behalf of a law enforcement agency of the Commonwealth, a State or a Territory; and
(b) that did not satisfy the requirements of this Act for the making of the application;
is as valid, and is taken always to have been as valid, as it would have been if the application had satisfied those requirements.
(2) Any later decision made, or any later action taken by, the Board, the Review Board, the Director or the Convenor under this Act (whether before or after the commencement of this section) on the basis of the original decision is as valid, and is taken always to have been as valid, as it would have been if the original decision had been made on an application that satisfied the requirements of this Act for the making of the application.
Division 2AA—Classification by approved classification tools
Subdivision A—Approved classification tools
22CA Approved classification tools
(1) The Minister may approve a tool (a classification tool) for the purposes of classifying one or more of the following (the relevant material):
(a) publications;
(b) films;
(c) computer games.
(2) A tool approved under subsection (1) is an approved classification tool for the relevant material.
(3) An approval may be given subject to the conditions specified in the approval.
(4) In deciding whether to approve a classification tool under subsection (1), the Minister must have regard to any matters specified in written guidelines made by the Minister for the purposes of this subsection.
(5) The Minister must not approve a classification tool under subsection (1) unless the tool will:
(a) produce a decision on the classification of the relevant material for the Australian Capital Territory; and
(b) determine consumer advice giving information about the content of the relevant material; and
(c) notify the decision and the consumer advice to the Director.
(6) An approval under subsection (1):
(a) must be in writing; and
(b) is not a legislative instrument; and
(c) must be published on the Department’s website.
(7) Guidelines made under subsection (4) are not a legislative instrument.
(8) Guidelines made under subsection (4) must be published on the Department’s website.
22CB Variation or revocation of approval
(1) The Minister may vary or revoke an approval under subsection 22CA(1) if the Minister is satisfied that it is appropriate to do so, having regard to:
(a) the matters specified in guidelines made for the purposes of subsection 22CA(4); and
(b) any other matter the Minister considers relevant.
(2) A variation or revocation of an approval takes effect at the time specified in the instrument varying or revoking the approval (which must not be a time before the instrument is made).
(3) A variation or revocation of an approval:
(a) must be in writing; and
(b) must be published on the Department’s website.
Subdivision B—Contracts etc. in relation to approved classification tools
22CC Contracts etc. in relation to approved classification tools
The Minister may, on behalf of the Commonwealth, enter into a contract, arrangement or understanding for purposes relating to the development, operation or availability for use of a tool that may be approved under section 22CA (approved classification tools).
22CD Involvement in a corporation etc. in relation to approved classification tools
(1) The Minister may, on behalf of the Commonwealth:
(a) participate in the formation of a corporation; or
(b) become a member of a corporation;
for purposes relating to the development, operation or availability for use of a tool that may be approved under section 22CA (approved classification tools).
(2) The Minister may, on behalf of the Commonwealth, appoint a person (whether or not engaged under the Public Service Act 1999) to a body or organisation (whether within or outside Australia) for purposes relating to the development, operation or availability for use of a tool that may be approved under section 22CA (approved classification tools).
22CE Executive power of the Commonwealth
This Subdivision does not, by implication, limit the executive power of the Commonwealth.
Subdivision C—Classification by approved classification tools
22CF Classification by approved classification tools
(1) If:
(a) a publication, film or computer game is unclassified; and
(b) there is an approved classification tool for the publication, film or computer game; and
(c) the approved classification tool is used to produce a decision, for the Australian Capital Territory, on the classification of the publication, film or computer game; and
(d) the prescribed fee (if any) has been paid in relation to the decision;
the decision is taken, for the purposes of this Act, to be a decision of the Board to classify the publication, film or computer game.
(2) The following provisions of this Act do not apply in relation to the decision:
(a) Division 2 of Part 2 (other than sections 20A and 21);
(b) Division 5 of Part 2.
(3) To avoid doubt, subsection (1) does not apply to a decision made by the operation of an approved classification tool if the decision does not comply with a condition to which the approval is subject under subsection 22CA(3).
(4) The decision takes effect when it is included in:
(a) the register, known as the National Classification Database, maintained by the Department; or
(b) any replacement register.
(5) Consumer advice for the publication, film or computer game (as the case may be) that is determined by the approved classification tool is taken to be consumer advice determined under section 20 by the Board for the publication, film or computer game (as the case may be).
Note: An approved classification tool must determine consumer advice: see paragraph 22CA(5)(b).
22CG Approved classification tool certificates
(1) If a publication, film or computer game (the classified material):
(a) is classified; and
(b) is taken to have been so classified by the Board because of the operation of section 22CF in relation to a decision of an approved classification tool;
a person may apply to the Director for a certificate (an approved classification tool certificate) for the classified material.
(2) An application under subsection (1) must:
(a) be in a form approved, in writing, by the Director; and
(b) be accompanied by the prescribed fee (if any).
Note: For an applicant that is the Commonwealth, or a Commonwealth authority or agency: see section 91A.
(3) On application under subsection (1), the Director must issue an approved classification tool certificate for the classified material.
(4) The certificate must include the determined markings for the classification given to the classified material.
22CH Revocation of classification by approved classification tool
Revocation of classification
(1) If:
(a) a decision made by the operation of an approved classification tool in relation to a publication, film or computer game (the relevant material) is taken (because of the operation of section 22CF) to be a decision of the Board to classify the relevant material; and
(b) the Board is of the opinion that, had the relevant material been classified otherwise than because of the operation of that section, the Board would have:
(i) given the relevant material a different classification; or
(ii) determined different consumer advice for the material;
the Board may revoke the classification.
(2) The Board may exercise the power under subsection (1):
(a) on its own initiative; or
(b) on application.
(3) An application under paragraph (2)(b) must:
(a) be in a form approved, in writing, by the Director; and
(b) be made:
(i) within 3 months after the day the decision made by the operation of the approved classification tool takes effect; or
(ii) if another period is specified in a determination under subsection (8)—within that longer period; and
(c) if a class of persons is specified in a determination under subsection (8)—be made by a person included in that class; and
(d) be accompanied by the prescribed fee (if any).
Note: For when the decision made by the operation of the approved classification tool takes effect, see subsection 22CF(4).
Classification after revocation
(4) If the Board decides to revoke the classification of relevant material under subsection (1), the Board must classify the relevant material.
(5) A decision of the Board to classify the relevant material, as referred to in subsection (4), takes effect when it is included in either:
(a) the register, known as the National Classification Database, maintained by the Department; or
(b) any replacement register.
(6) Subsection (5) has effect despite section 28 (when decisions take effect).
When revocation of classification takes effect
(7) The revocation of the classification of relevant material under subsection (1) takes effect immediately before the decision to classify the material, as referred to in subsection (4), takes effect.
Ministerial determination
(8) The Minister may, by legislative instrument, determine either or both of the following:
(a) a specified period for the purposes of subparagraph (3)(b)(ii);
(b) a specified class of persons for the purposes of paragraph (3)(c).
Subdivision D—Other
22CJ Delegation by the Minister
(1) The Minister may, by written instrument, delegate any or all of the Minister’s powers or functions under this Division, other than the Minister’s power to make guidelines for the purposes of subsection 22CA(4), to the Secretary of the Department.
(2) In exercising powers or performing functions under a delegation, the Secretary must comply with any directions of the Minister.
Division 2A—Assessments of additional content
Subdivision A—Additional content assessors
22D Additional content assessors
(1) Subject to subsection (2), the Director may, in writing, authorise a person to prepare assessments of additional content under subsection 14(5).
(2) The Director must not authorise a person if:
(a) a notice under section 22F is in force in relation to the person; or
(b) the person has not completed training approved by the Director in the making of assessments.
22E Revocation of additional content assessor status
(1) The Director may, in writing, revoke an authorisation in relation to an additional content assessor if the Director is satisfied that one or more of the conditions mentioned in subsection (2) apply to the additional content assessor.
(2) The conditions are as follows:
(a) the additional content assessor has prepared an assessment of the additional content in a film and the additional content contains classifiable elements that:
(i) were not brought to the Board’s attention in accordance with paragraph 14(6)(a), (b) or (c) before the classification was made; or
(ii) were brought to the Board’s attention in accordance with paragraph 14(6)(a), (b) or (c) before the classification was made but the assessment of the elements was misleading, incorrect or grossly inadequate;
(b) if the Director has requested the additional content assessor complete further training approved by the Director in the making of assessments—the additional content assessor has not completed the training;
(c) the additional content assessor has prepared at least two assessments under subsection 14(5) which contain misleading, incorrect or grossly inadequate information;
(d) any other conditions prescribed by the regulations.
Note: The regulations may prescribe circumstances in which an assessment is taken to be misleading, incorrect or grossly inadequate, or to contain misleading, incorrect or grossly inadequate information: see subsection 93(2).
22F Barring notice to additional content assessor
(1) The Director may give a written notice to a person if the Director is satisfied that:
(a) both of the following apply:
(i) the Board classified a film taking into account an assessment of the additional content in the film prepared by the person;
(ii) the Board has revoked the classification of the film under section 21AA; or
(b) the person has prepared at least two assessments under subsection 14(5) which contain misleading, incorrect or grossly inadequate information; or
(c) the person meets any other condition set out in the regulations.
Note 1: If the Director gives a notice to a person under this subsection, the person cannot be authorised to prepare assessments of additional content while the notice remains in force: see section 22D.
Note 2: The regulations may prescribe circumstances in which an assessment is taken to contain misleading, incorrect or grossly inadequate information: see subsection 93(2).
(2) The notice takes effect from the date specified in the notice and continues in force for the period specified in the notice. The period must not exceed 3 years.
22G Review by AAT
An application may be made to the Administrative Appeals Tribunal for review of a decision of the Director under subsection 22E(1) or 22F(1).
Subdivision B—Barring notices to applicants
22H Barring notice to applicant
(1) The Director may give a written notice to a person if:
(a) the person has submitted at least two applications that were accompanied by assessments under subsection 14(5); and
(b) the assessments contained misleading, incorrect or grossly inadequate information; and
(c) as a result of those assessments, the Director revoked the authorisation of the additional content assessors who prepared them.
Note 1: If the Director gives a notice to a person under this subsection, the person cannot submit an assessment of additional content with an application for classification of a film while the notice remains in force: see subsection 14(5).
Note 2: The regulations may prescribe circumstances in which an assessment is taken to contain misleading, incorrect or grossly inadequate information: see subsection 93(2).
(2) The notice takes effect from the date specified in the notice and continues in force for the period specified in the notice. The period must not exceed 3 years.
22J Review by AAT
An application may be made to the Administrative Appeals Tribunal for review of a decision of the Director under subsection 22H(1).
Division 3—Submittable publications
23 Calling in submittable publications for classification
(1) If:
(a) the Director has reasonable grounds to believe that a publication is a submittable publication; and
(b) the publication is being published in the Australian Capital Territory, or the Director has reasonable grounds to believe that it will be published in the Australian Capital Territory;
the Director may, by notice in writing given to the publisher of the publication, require the publisher to submit an application for classification of the publication, or of subsequent issues of the publication, by the Board.
(2) The Director must cause notice of a decision under subsection (1) to be published in the Gazette.
(3) A person to whom a notice under this section is given must, within 3 business days after receiving the notice, comply with the notice.
Penalty: 20 penalty units.
(4) An offence against subsection (3) is a strict liability offence.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) It is a defence to a prosecution for an offence against subsection (3) if the defendant proves that he or she did not intend to:
(a) publish the publication in the Australian Capital Territory; or
(b) cause, authorise, permit or licence the publication to be published in the Australian Capital Territory.
Division 3A—Calling in films
23A 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 the Australian Capital Territory, or the Director has reasonable grounds to believe that it will be published in the Australian Capital Territory;
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) The Director must cause notice of a decision under subsection (1) to be published in the Gazette.
(3) A person to whom a notice under this section is given must, within 3 business days after receiving the notice, comply with the notice.
Penalty: 20 penalty units.
(4) An offence against subsection (3) is a strict liability offence.
(5) It is a defence to a prosecution for an offence against subsection (3) if the defendant proves that he or she did not intend to:
(a) publish the film in the Australian Capital Territory; or
(b) cause, authorise, permit or licence the film to be published in the Australian Capital Territory.
Division 4—Calling in computer games
24 Calling in computer games for classification
(1) If:
(a) the Director has reasonable grounds to believe that a computer game is likely to contain contentious material; and
(b) the computer game is being published in the Australian Capital Territory, or the Director has reasonable grounds to believe that it will be published in the Australian Capital Territory;
the Director may, by notice in writing given to the publisher of the game, require the publisher to submit an application for classification of the game.
(1A) If:
(a) the Director has reasonable grounds to believe that an unclassified computer game is not an exempt computer game; and
(b) the game is being published in the Australian Capital Territory, or the Director has reasonable grounds to believe that it will be published in the Australian Capital Territory;
the Director may, by notice in writing given to the publisher of the game, require the publisher to submit an application for classification of the game.
(2) The Director must cause notice of a decision under subsection (1) or (1A) to be published in the Gazette.
(3) A person to whom a notice under this section is given must, within 3 business days after receiving the notice, comply with the notice.
Penalty: 20 penalty units.
(4) An offence against subsection (3) is a strict liability offence.
Note: For strict liability, see section 6.1 of the Criminal Code.
(5) It is a defence to a prosecution for an offence against subsection (3) if the defendant proves that he or she did not intend to:
(a) publish the computer game in the Australian Capital Territory; or
(b) cause, authorise, permit or licence the computer game to be published in the Australian Capital Territory.
Division 5—Notice of decisions
25 Classification certificates
(1) The Director must issue a classification certificate for each publication, film and computer game that is classified by the Board.
(1A) The Convenor must issue a classification certificate for each publication, film and computer game that is classified by the Review Board.
(1B) If:
(a) the Director has issued a classification certificate (the first certificate) for a publication, film or computer game; and
(b) the Convenor issues a classification certificate (the second certificate) for the publication, film or computer game;
the first certificate is taken to be revoked at the time the Convenor gives written notice to the applicant under subsection 26(3).
(2) A classification certificate must include:
(a) the determined markings for the classification given to the publication, film or computer game; and
(b) for a film or computer game—the consumer advice for the film or game; and
(c) the applicant’s obligations about the display of the determined markings and consumer advice.
26 Notice of decisions
Notice of decisions by the Board
(1) The Director must give written notice of a decision of the Board to the applicant.
(2) If there was no applicant, or the applicant is not the person on whose application an earlier decision was made, the Director must give the notice to the persons who, in his or her opinion, have an interest in the matter, whether as a publisher of the publication, film or computer game or otherwise.
Notice of decisions by the Review Board
(3) The Convenor must give written notice of a decision of the Review Board to:
(a) the applicant; and
(b) the persons who, in the Convenor’s opinion, have an interest in the matter, whether as a publisher of the publication, film or computer game or otherwise.
Time for giving notice
(4) The notice must be given as soon as practicable, but not later than 30 days after the decision.
Certificate as notice of decision
(5) A copy of the classification certificate is enough notice of the decision.
27 Applications for information
Applications to the Director
(1) A person may apply to the Director for a copy of:
(a) a classification certificate issued by the Director under subsection 25(1); or
(b) a notice given by the Director under subsection 26(1).
(2) If the application is not an enforcement application, the Director must give the copy to the applicant after the applicant pays the prescribed fee.
Note: For an applicant that is the Commonwealth or a Commonwealth entity: see section 91A.
(3) If the application is an enforcement application, the Director must give the copy to the applicant after the applicant makes the application. The applicant must pay the prescribed fee on or after making the application.
Note: For an applicant that is the Commonwealth or a Commonwealth entity: see section 91A.
Applications to the Convenor
(4) A person may apply to the Convenor for a copy of:
(a) a classification certificate issued by the Convenor under subsection 25(1A); or
(b) a notice given by the Convenor under subsection 26(3).
(5) If the application is not an enforcement application, the Convenor must give the copy to the applicant after the applicant pays the prescribed fee.
Note: For an applicant that is the Commonwealth or a Commonwealth entity: see section 91A.
(6) If the application is an enforcement application, the Convenor must give the copy to the applicant after the applicant makes the application. The applicant must pay the prescribed fee on or after making the application.
Note: For an applicant that is the Commonwealth or a Commonwealth entity: see section 91A.
28 When decisions take effect
A decision takes effect on the day on which notice of the decision is given under section 26.
Part 3—Advertising
Division 1—Approval of general advertisements
29 Approval of advertisements
(1) The Board may approve or refuse to approve an advertisement for a publication, a film or a computer game either on an application for approval or on its own initiative. An approval of an advertisement may be subject to conditions.
(2) An application for approval of an advertisement must be:
(a) in writing; and
(b) made in a form approved by the Director in writing; and
(c) signed by or on behalf of the applicant; and
(d) accompanied by the prescribed fee for that category of advertisement.
(3) The matters to be taken into account in deciding whether to approve an advertisement include the matters set out in section 11 and the classification guidelines referred to in section 12.
(4) The Board must refuse to approve an advertisement if, in the opinion of the Board, the advertisement:
(a) describes, depicts or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that it offends against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that it should not be approved; or
(b) depicts or describes, in a way that is likely to cause offence to a reasonable adult, a person who is, or appears to be, a child under 18 (whether the person is engaged in sexual activity or not); or
(c) promotes crime or violence, or incites or instructs in matters of crime or violence; or
(d) is used, or is likely to be used, in a way that is offensive to a reasonable adult.
(5) The Board must refuse to approve an advertisement for a publication if the publication:
(a) has been classified RC; or
(b) is an unclassified submittable publication.
(6) The Board must refuse to approve an advertisement for:
(a) a film or computer game that has been classified RC; or
(b) an unclassified film or unclassified computer game that, if classified, would be likely to be classified RC.
30 Calling in advertisements
(1) The Director may, by notice in writing given to:
(a) the publisher of a publication that:
(i) the Director has reasonable grounds to believe is a submittable publication; and
(ii) is being published in the Australian Capital Territory, or the Director has reasonable grounds to believe will be published in the Australian Capital Territory; or
(b) the publisher of a film that is being published in the Australian Capital Territory, or that the Director has reasonable grounds to believe will be published in the Australian Capital Territory; or
(c) the publisher of a computer game that is being published in the Australian Capital Territory, or that the Director has reasonable grounds to believe will be published in the Australian Capital Territory;
require the publisher to submit to the Board for approval a copy of every advertisement used or intended to be used in connection with the publishing.
(2) A person to whom a notice under this section is given must, within 3 business days after receiving the notice, comply with the notice.
Penalty: 20 penalty units.
(3) An offence against subsection (2) is a strict liability offence.
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) It is a defence to a prosecution for an offence against subsection (2) if the defendant proves that he or she did not intend to:
(a) publish the publication, film or computer game in the Australian Capital Territory; or
(b) cause, authorise, permit or licence the publication, film or computer game to be published in the Australian Capital Territory.
Division 2—Advertising of unclassified films and unclassified computer games
Subdivision A—Scheme relating to advertising
31 Scheme for advertising may be determined by legislative instrument
(1) The Minister may, by legislative instrument, determine a scheme for the advertising of unclassified films and unclassified computer games including, but not limited to, the following:
(a) specifying conditions on which unclassified films and unclassified computer games may be advertised;
(b) providing for requirements relating to self‑assessment by industry of the likely classification of unclassified films and unclassified computer games.
(2) The conditions on which unclassified films and unclassified computer games may be advertised include, but are not limited to, conditions in relation to the following:
(a) messages that must be displayed on or in relation to the advertising of an unclassified film or an unclassified computer game;
(b) the circumstances in which an unclassified film or an unclassified computer game may be advertised with a classified film or game (including circumstances relating to the likely classification of the film or computer game);
(c) the time within which messages on or in relation to an advertisement for an unclassified film or an unclassified computer game must be changed after the film or computer game is classified;
(d) a condition that an unclassified film or an unclassified computer game may not be advertised by a person in respect of whom a barring notice of a kind mentioned in paragraph (3)(d) is in force.
(3) Without limiting subsection (1), the scheme may:
(a) provide for the authorisation of persons to make assessments of the likely classifications of unclassified films or unclassified computer games; and
(b) specify the requirements for authorisation of a kind mentioned in paragraph (a), and for continued authorisation (including the circumstances in which such authorisation may be revoked or suspended); and
(c) specify the basis on which an authorised person may make, amend or revoke assessments of the likely classification of unclassified films or unclassified computer games; and
(d) provide for a notice system that empowers the Director to give a notice (a barring notice) to a particular person in specified circumstances (including circumstances that relate to whether the Director is satisfied as to a matter or matters); and
(e) specify the effect of a barring notice, which may include but is not limited to providing that a person in respect of whom a barring notice is in force may not be authorised to make assessments of the likely classifications of unclassified films or unclassified computer games; and
(f) provide for review by the Administrative Appeals Tribunal of decisions under the scheme; and
(g) confer functions and powers on the Board or the Director in relation to and for the purposes of the scheme; and
(h) provide for administrative matters, such as the making of applications and the giving of notices.
(4) The scheme may specify the circumstances in which an unclassified film or an unclassified computer game may not be advertised.
(5) The Minister must consult with participating Ministers before making a determination under subsection (1).
(6) A determination under subsection (1) must not be such as to permit the advertisement of a film or computer game that, if the film or computer game were classified, would be likely to be classified RC or X 18+.
Subdivision B—Assessments of likely classifications of unclassified films and unclassified computer games
32 Person may apply for assessment of likely classification of unclassified film or unclassified computer game
(1) A person who is, or proposes to be, the distributor, exhibitor or publisher of an unclassified film or an unclassified computer game may apply to the Board for an assessment of the likely classification of the film or computer game for the purpose of advertising the film or computer game.
(2) The application must:
(a) be in writing; and
(b) be in a form approved in writing by the Director; and
(c) be signed by or on behalf of the applicant; and
(d) include any information, statements, explanations or other matters required by the form; and
(e) be accompanied by any other relevant material required by the form; and
(f) be accompanied by the prescribed fee.
33 Board may assess likely classification of film or computer game
(1) This section applies if an application has been made under section 32 for the assessment of the likely classification of an unclassified film or an unclassified computer game.
(2) The Board may assess the classification that, in the opinion of the Board, the film or computer game would be likely to have if the film or computer game were classified, having regard to the material and information available to the Board when making the assessment.
(3) The Board may refuse to assess the likely classification of the film or computer game if the Board considers that the material and information available to the Board is insufficient (whether or not the Board has made a request under subsection (4)).
(4) The Board may request the applicant to give to the Board, within the period specified in the request, further information for the purpose of enabling the Board to deal with the application.
(5) The Board may decline to deal with the application, or decline to further deal with the application, until the information is given to the Board in accordance with the request.
(6) To avoid doubt, this section does not require the Board to obtain further information under subsection (4) for the purposes of the Board’s assessment.
(7) An assessment made under subsection (2) is not a legislative instrument.
34 Revocation of assessments
(1) If, after making an assessment under section 33 of the likely classification of an unclassified film or an unclassified computer game, but before the film or computer game is classified, the Board is of the opinion that:
(a) the film or computer game contains, or will contain, material of which the Board was unaware when the Board made the assessment; and
(b) if the Board had been aware of the material before making the assessment, it would have assessed the film or computer game as likely to have a higher classification;
the Board must revoke the assessment, and must also revoke the approval of any approved advertisement for the film or game.
(2) The Board must revoke an assessment under section 33 of the likely classification of a film or computer game, and must also revoke the approval of any approved advertisement for the film or game, if the applicant for the assessment makes a written request that the Board do so.
(3) The revocation of an assessment or approved advertisement takes effect:
(a) when written notice of the decision to revoke is given under section 35 to the applicant concerned; or
(b) if a later day is specified in the instrument of revocation—on that later day.
35 Notice of decisions
The Board must give written notice of a decision under section 33 or 34 to the applicant for the assessment or advertisement concerned as soon as practicable but not later than 30 days after the making of the decision.
Part 4—Reclassification
38 Limit on reclassification
(1) If a publication, a film or a computer game is classified, the Board must not reclassify the publication, film or computer game within the period of 2 years commencing on the day the decision to classify took effect.
(2) If an advertisement is approved or refused approval, the Board must not approve or refuse to approve the advertisement within the period of 2 years commencing on the day the decision to approve or refuse to approve the advertisement took effect.
39 Reclassification etc. after 2 years
(1) After that period of 2 years, the Minister may request that the Board:
(a) reclassify the publication, film or computer game; or
(b) reconsider the advertisement and approve or refuse to approve it.
(3) If the Minister requests the Board to act under subsection (1), the Board must do so.
(4) If a participating Minister asks the Minister, in writing, to make a request under this section, the Minister must do so.
(5) If the publisher of the publication, film or computer game resides in the Australian Capital Territory or has an office in the Australian Capital Territory, 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.
(6) A person to whom a notice under this section is given must, within 5 business days after receiving the notice, comply with the notice.
Penalty: 20 penalty units.
(7) An offence against subsection (6) is a strict liability offence.
(8) It is a defence to a prosecution for an offence against subsection (6) if the defendant proves that he or she did not have a copy of the publication, film or computer game.
40 Notice of request to reclassify etc.
(1) If the Board is requested to reclassify a publication, a film or a computer game or reconsider a decision on an advertisement, the Director must give notice of the request, inviting submissions about the matter.
(2) The Director must cause the contents of the notice to be publicised in such manner as the Director decides at least 30 days before the Board proposes to consider the matter.
(3) If practicable, the Director must give a copy of the notice to the person on whose application the former classification or approval was made or given at least 30 days before the Board proposes to consider the matter.
(4) The notice must specify the day on which the Board proposes to consider the matter.
41 Consideration of submissions
The matters that the Board is to take into account in reclassifying the publication, film or computer game or in approving or refusing to approve the advertisement include issues raised in submissions made to the Board about the matter.
Part 5—Review of decisions
42 The persons who may apply for review
(1) Any of the following persons may apply to the Review Board for a review of a decision:
(a) the Minister;
(b) the applicant for classification of the publication, film or computer game concerned, the applicant for assessment under section 33 of the likely classification of the unclassified film or unclassified computer game concerned, or the applicant for approval of the advertisement concerned;
(c) the publisher of the film, publication or computer game concerned;
(d) a person aggrieved by the decision.
(2) If a participating Minister asks the Minister, in writing, to apply for a review of a decision, the Minister must do so.
(3) Without limiting paragraph (1)(d), if the decision referred to in that paragraph is a restricted decision, the following persons or bodies are taken to be persons aggrieved by the decision:
(a) a person who has engaged in a series of activities relating to, or research into, the contentious aspects of the theme or subject matter of the publication, film or computer game concerned;
(b) an organisation or association, whether incorporated or not, whose objects or purposes include, and whose activities relate to, the contentious aspects of that theme or subject matter.
(4) However, a person or body is not aggrieved by a restricted decision because of subsection (3) if the decision was made before:
(a) the person engaged in a series of activities relating to, or research into, the contentious aspects of the theme or subject matter of the publication, film or computer game concerned; or
(b) the organisation or association was formed, or its objects or purposes included and its activities related to, the contentious aspects of that theme or subject matter.
(5) In this section:
restricted decision means a decision of the Board:
(a) to classify a publication Category 1 restricted, Category 2 restricted or RC; or
(b) to classify a film MA 15+, R 18+, X 18+ or RC; or
(c) to classify a computer game MA 15+, R 18+ or RC.
42A Review Board may refuse to deal with certain applications
The Review Board may refuse to deal with an application for review made by a person referred to in paragraph 42(1)(d), or to deal further with it, if the Review Board is satisfied that the application is frivolous or vexatious or not made in good faith.
43 Applications for review
(1) An application for review of a decision must be:
(a) in writing; and
(b) made in a form approved by the Convenor in writing; and
(c) signed by or on behalf of the applicant; and
(d) except for an application made by the Minister—accompanied by the prescribed fee.
(2) An application by the Minister for review of a decision may be made at any time.
(3) Any other application for review of a decision must be made:
(a) within 30 days after the applicant received notice of the decision; or
(b) within such longer period as the Review Board allows.
(4) If a person other than the original applicant applies for review of a decision, the Convenor must, if practicable, notify the original applicant in writing of the application and of the day on which it will be considered.
44 Dealing with applications
(1) The Review Board must deal with an application for review of a decision in the same way that the Board deals with an application for classification of a publication, film or computer game or for approval of an advertisement.
(2) Section 19 (other than subsection 19(6)) applies for the purpose of an application for review as if:
(a) references in that section to the Board were references to the Review Board; and
(b) references in that section to the Director were references to the Convenor.
44A Obtaining copies for review
(1) If:
(a) an application is made for a review of a classification decision by a person who is not the original applicant for classification of the publication, film or computer game concerned; and
(b) the Board or the Review Board does not have a copy of the publication, film or game and a copy is not available to it; and
(c) the original applicant or the publisher of the publication, film or game, resides in the Australian Capital Territory or has an office in the Australian Capital Territory;
the Convenor 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 game available for the purpose of the review.
(2) A person to whom a notice under this section is given must, within 5 business days after receiving the notice, comply with the notice.
Penalty: 20 penalty units.
(3) An offence against subsection (2) is a strict liability offence.
(4) It is a defence to a prosecution for an offence against subsection (2) if the defendant proves that he or she did not have a copy of the publication, film or game.
44B Validation of Review Board decisions etc. in relation to decisions on applications by law enforcement agencies
(1) A decision (the review decision) made by the Review Board (whether before or after the commencement of this section) on an application (the review application):
(a) for review of a decision on an application made by or on behalf of a law enforcement agency of the Commonwealth, a State or a Territory; and
(b) that did not satisfy the requirements of this Act for the making of the review application;
is as valid, and is taken always to have been as valid, as it would have been if the review application had satisfied those requirements.
(2) Any later decision made, or any later action taken by, the Board, the Review Board, the Director or the Convenor under this Act (whether before or after the commencement of this section) on the basis of the review decision is as valid, and is taken always to have been as valid, as it would have been if the review decision had been made on an application that satisfied the requirements of this Act for the making of the application.
Part 6—The Classification Board
Division 1—Establishment of the Board
45 Establishment of Classification Board
A Classification Board is established.
46 Constitution of Board
The Board is to consist of:
(a) a Director; and
(b) a Deputy Director; and
(d) other members.
47 Maximum number of members
There must not be more than 20 members or such higher number as is prescribed by the regulations.
48 Appointment of members
(1) The members (other than temporary members) are to be appointed by the Governor‑General.
(1A) The Governor‑General may appoint one or more members referred to in paragraph 46(d) to be Senior Classifiers.
(2) In appointing members, regard is to be had to the desirability of ensuring that the membership of the Board is broadly representative of the Australian community.
(3) The Minister must, before recommending the appointment of a member (other than a temporary member), consult with participating Ministers.
49 Full‑time and part‑time appointments
(1) The Director and the Deputy Director are to be appointed as full‑time members.
(2) Any other member may be appointed either as a full‑time member or as a part‑time member.
50 Temporary members
(1) The Minister may appoint a person to be a temporary member of the Board if, in his or her opinion, it is necessary to do so for the efficient dispatch of the Board’s business.
(2) An appointment under this section is to be for a maximum period of 3 months.
51 Terms and conditions of appointment
(1) A member (other than a temporary member) is to be appointed for the period (not longer than 5 years) specified in the instrument of appointment but is eligible for reappointment.
(2) A member holds office on such terms and conditions (if any) in relation to matters not provided for by this Act as are determined by the Governor‑General.
(3) A member must not hold office as a member for a total of more than 7 years.
Division 2—Responsibilities and powers of the Director
52 Responsibilities and powers of the Director
The Director is responsible for ensuring that the business of the Board is conducted in an orderly and efficient way and, for that purpose, the Director may give directions as to the arrangement of the business of the Board.
53 Powers of Director under State/Territory laws
The Director may exercise powers conferred on him or her by:
(a) a provision of a law of a State or the Northern Territory that corresponds to section 23, 23A, 24 or 30; or
(b) a provision of a law of a State or Territory that:
(i) relates to the granting of exemptions from a State or Territory law relating to publications, films or computer games or approval of organisations in relation to films or computer games; or
(ii) relates to the approval of forms; or
(iii) is prescribed.
Division 4—Procedure of the Board
56 Board to regulate its procedure
Subject to this Division, the procedure to be followed by the Board is as determined by the Director.
57 Decisions of the Board
(1) This section applies to the consideration by the Board of an application or of an advertisement.
(2) The Director may give directions as to the constitution of the Board for the purpose of that consideration.
(3) If the members of the Board dealing with a matter are divided in opinion, but not equally divided, the decision of the majority prevails.
(4) If the members of the Board are equally divided in opinion:
(a) if the Board constituted for the purposes of the matter includes the Director—the Director has a casting vote as well as a deliberative vote; and
(b) in any other case—the Director must vary the constitution of the Board by adding 1 or more other members and the matter is to be considered again.
(5) The Director may decide the way in which decisions of the Board, and opinions of individual members, are to be recorded.
58 Procedures that apply to meetings of the Board
(1) The Director is to convene such meetings of the Board as he or she thinks necessary for the efficient performance of its functions.
(2) Meetings are to be held at such places as the Director decides.
(3) The Director is to preside at all meetings at which he or she is present.
(4) If the Director is not present at a meeting:
(a) the Deputy Director is to preside; or
(b) if the Deputy Director is not present—the members present are to appoint a member to preside.
(5) At a meeting, 5 members constitute a quorum.
(6) Questions arising at a meeting are to be determined by a majority of the votes of the members present and voting.
(7) If a matter relating to the classification of a publication, film or computer game or the approval of an advertisement is referred to a meeting of the Board, only those members who have read the publication, seen the film or advertisement or seen the computer game demonstrated may vote on the matter.
(8) The person presiding at a meeting has a deliberative vote and, if necessary, also has a casting vote.
Division 5—Administrative provisions
59 Delegations
(1) The Director may by signed instrument delegate to another member all or any of the Director’s powers under this Act or the regulations.
(2) Subject to subsection (3), the Director may, by signed instrument, delegate to a member of staff mentioned in section 88A:
(a) all or any of the Board’s powers under this Act in relation to:
(i) the classification of publications, films or computer games; or
(ii) the approval of advertisements for publications, films or computer games; and
(b) all or any of the Director’s powers under the regulations.
(3) A power may only be delegated under paragraph (2)(a) if the Board has, by resolution, determined that the delegation is desirable for the efficient running of the Board.
60 Remuneration and allowances
(1) A member is to be paid the remuneration and allowances determined by the Remuneration Tribunal. If there is no determination in force, the member is to be paid such remuneration as is prescribed.
(2) A member is to be paid such other allowances as are prescribed.
(3) Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973.
61 Leave of absence
(1) A member has the recreation leave entitlements determined by the Remuneration Tribunal.
(2) The Minister may grant a member leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.
62 Outside employment
(1) Except with the consent of the Minister, a full‑time member must not engage in paid employment outside the duties of his or her office.
(2) Subsection (1) does not apply to service in the Defence Force.
63 Resignation
(1) A member (other than a temporary member) may resign by giving a signed notice of resignation to the Governor‑General.
(2) A temporary member may resign by giving a signed notice of resignation to the Minister.
64 Disclosure of interests
(1) A member who has a conflict of interest in relation to a matter being considered or about to be considered by the Board must disclose the matters giving rise to that conflict to the Board as soon as possible after becoming aware of the conflict.
(2) The member must not take part in the making of a decision by the Board in relation to the matter unless the Director agrees or, if the member is the Director, the Minister agrees.
(3) For the purposes of this section, a member has a conflict of interest in relation to a matter being considered or about to be considered by the Board if the member has any interest, pecuniary or otherwise, that could conflict with the proper performance of the member’s functions in relation to that matter.
65 Termination of appointment
(1) The Governor‑General may terminate the appointment of a member for misbehaviour or physical or mental incapacity.
(2) The Governor‑General must terminate the appointment of a member if:
(a) the member:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the member is a full‑time member and is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) the member is a part‑time member and is absent, without reasonable excuse, from 3 consecutive meetings of the Board; or
(d) the member engages in paid employment contrary to section 62; or
(e) the member fails, without reasonable excuse, to comply with section 64.
(3) If a member is:
(a) an eligible employee for the purposes of the Superannuation Act 1976; or
(b) a member of the superannuation scheme established by deed under the Superannuation Act 1990; or
(c) an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005;
the Governor‑General may, with the member’s consent, retire the member from office on the ground of incapacity.
(4) In spite of anything in this Act, a member who:
(a) is an eligible employee for the purposes of the Superannuation Act 1976; and
(b) has not reached his or her retiring age (within the meaning of that Act);
cannot be retired from office on the ground of invalidity (within the meaning of Part IVA of that Act) unless CSC has given a certificate under section 54C of that Act.
(5) In spite of anything in this Act, a member who:
(a) is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and
(b) is under 60;
cannot be retired from office on the ground of invalidity (within the meaning of that Act) unless CSC has given a certificate under section 13 of that Act.
(5A) In spite of anything in this Act, a member who:
(a) is an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005; and
(b) is under 60;
cannot be retired from office on the ground of invalidity (within the meaning of that Act) unless CSC has given an approval and certificate under section 43 of that Act.
(6) This section applies to a temporary member as if references to the Governor‑General were references to the Minister.
66 Acting appointments
(1) If:
(a) there is a vacancy in the office of Director, whether or not an appointment has previously been made to the office; or
(b) the Director is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office;
the Deputy Director is to act as the Director during the vacancy, absence or inability.
Note: For rules that apply to persons acting as the Director, see section 33A of the Acts Interpretation Act 1901.
(2) If the Deputy Director is not available, the Minister may appoint another member to act as the Director during the vacancy, absence or inability.
Note: For rules that apply to acting appointments of the Director, see section 33A of the Acts Interpretation Act 1901.
(3) The Minister may appoint a person to act in the office of a member other than the Director:
(a) during a vacancy in the office, whether or not an appointment has previously been made to the office; or
(b) during a period, or during all periods, when the holder of the office is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments of members, see section 33A of the Acts Interpretation Act 1901.
67 Annual report
(1) As soon as practicable after the end of each financial year, the Director must give to the Minister a report of the management of the administrative affairs of the Board during the financial year.
(2) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.
Part 7—The Review Board
Division 1—Establishment of the Review Board
72 Establishment of Classification Review Board
A Classification Review Board is established.
73 Constitution of Review Board
The Review Board is to consist of:
(a) a Convenor; and
(b) a Deputy Convenor; and
(c) at least 3, but not more than 8 (or such higher number as is prescribed) other members.
74 Appointment of members of the Review Board
(1) The members of the Review Board are to be appointed by the Governor‑General.
(2) In appointing members of the Review Board, regard is to be had to the desirability of ensuring that the membership of the Review Board is broadly representative of the Australian community.
(3) The Minister must, before recommending the appointment of a member of the Review Board, consult with participating Ministers.
75 Members of the Review Board to be part‑time
The members of the Review Board are to be appointed as part‑time members.
76 Terms and conditions of appointment
(1) A member of the Review Board is to be appointed for the period (not longer than 5 years) specified in the instrument of appointment but is eligible for reappointment.
(2) A member of the Review Board holds office on such terms and conditions (if any) in relation to matters not provided for by this Act as are determined by the Governor‑General.
(3) A member of the Review Board must not hold office as a member of the Review Board for a total of more than 7 years.
Division 2—Responsibilities and powers of the Convenor
77 Responsibilities and powers of the Convenor
The Convenor is responsible for ensuring that the business of the Review Board is conducted in an orderly and efficient way and, subject to section 78, the Convenor may give directions as to the arrangement of the business of the Review Board or the constitution of the Review Board for the purpose of considering a particular matter.
77A Powers of Convenor under State/Territory laws
The Convenor may exercise powers conferred on him or her by a provision of a law of a State or the Northern Territory that corresponds to section 44A.
Division 3—Procedure of the Review Board
78 Constitution of Review Board for the purpose of its functions
For the purpose of performing its functions, the Review Board is to be constituted by at least 3 of its members who are to be nominated for the purpose by the Convenor.
79 Decisions of the Review Board
(1) If the members of the Review Board dealing with a matter are divided in opinion, but not equally divided, the decision of the majority prevails.
(2) If the members of the Review Board are equally divided in opinion:
(a) if the Review Board constituted for the purposes of the application or matter includes the Convenor—the Convenor has a casting vote as well as a deliberative vote; and
(b) in any other case—the Convenor is to vary the constitution of the Review Board by adding 1 or more other members and the matter is to be considered again.
(3) The Convenor may decide the way in which decisions of the Review Board, and opinions of individual members, are to be recorded.
Division 4—Administrative provisions
79A Delegations
(1) The Convenor may, by signed instrument, delegate to another member of the Review Board all or any of the Convenor’s powers under this Act or the regulations.
(2) Subject to subsection (3), the Convenor may, by signed instrument, delegate to a member of staff mentioned in section 88A:
(a) all or any of the Review Board’s powers under this Act in relation to:
(i) the classification of publications, films or computer games; or
(ii) the approval of advertisements for publications, films or computer games; and
(b) all or any of the Convenor’s powers under the regulations.
(3) A power may only be delegated under paragraph (2)(a) if the Review Board has, by resolution, determined that the delegation is desirable for the efficient running of the Review Board.
80 Remuneration and allowances
(1) A member of the Review Board is to be paid the remuneration and allowances determined by the Remuneration Tribunal. If there is no determination in force, the member is to be paid such remuneration as is prescribed.
(2) A member of the Review Board is to be paid such other allowances as are prescribed.
(3) Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973.
81 Resignation
A member of the Review Board may resign by giving a signed notice of resignation to the Governor‑General.
82 Disclosure of interests
(1) A member of the Review Board who has a conflict of interest in relation to a matter being considered or about to be considered by the Review Board must disclose the matters giving rise to that conflict to the Review Board as soon as possible after becoming aware of the conflict.
(2) The member must not take part in the making of a decision by the Review Board in relation to the matter unless the Convenor agrees or, if the member is the Convenor, the Minister agrees.
(3) For the purposes of this section, a member of the Review Board has a conflict of interest in relation to a matter being considered or about to be considered by the Review Board if the member has any interest, pecuniary or otherwise, that could conflict with the proper performance of the member’s functions in relation to that matter.
83 Termination of appointment
(1) The Governor‑General may terminate the appointment of a member of the Review Board for misbehaviour or physical or mental incapacity.
(2) The Governor‑General must terminate the appointment of a member of the Review Board if:
(a) the member:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the member is absent, without reasonable excuse, from 3 consecutive meetings of the Review Board; or
(c) the member fails, without reasonable excuse, to comply with section 82.
(3) If a member of the Review Board is:
(a) an eligible employee for the purposes of the Superannuation Act 1976; or
(b) a member of the superannuation scheme established by deed under the Superannuation Act 1990; or
(c) an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005;
the Governor‑General may, with the member’s consent, retire the member from office on the ground of incapacity.
(4) In spite of anything in this Act, a member of the Review Board who:
(a) is an eligible employee for the purposes of the Superannuation Act 1976; and
(b) has not reached his or her retiring age (within the meaning of that Act);
cannot be retired from office on the ground of invalidity (within the meaning of Part IVA of that Act) unless CSC has given a certificate under section 54C of that Act.
(5) In spite of anything in this Act, a member of the Review Board who:
(a) is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and
(b) is under 60;
cannot be retired from office on the ground of invalidity (within the meaning of that Act) unless CSC has given a certificate under section 13 of that Act.
(6) In spite of anything in this Act, a member of the Review Board who:
(a) is an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005; and
(b) is under 60;
cannot be retired from office on the ground of invalidity (within the meaning of that Act) unless CSC has given an approval and certificate under section 43 of that Act.
84 Acting appointments
(1) If:
(a) there is a vacancy in the office of Convenor, whether or not an appointment has previously been made to the office; or
(b) the Convenor is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office;
the Deputy Convenor is to act as the Convenor during the vacancy, absence or inability.
Note: For rules that apply to persons acting as the Convenor, see section 33A of the Acts Interpretation Act 1901.
(2) If the Deputy Convenor is not available, the Minister may appoint another member of the Review Board to act as the Convenor during the vacancy, absence or inability.
Note: For rules that apply to acting appointments of the Convenor, see section 33A of the Acts Interpretation Act 1901.
(3) The Minister may appoint a person to act in the office of a member of the Review Board other than the Convenor:
(a) during a vacancy in the office, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the holder of the office is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments of members of the Review Board, see section 33A of the Acts Interpretation Act 1901.
85 Annual report
(1) As soon as practicable after the end of each financial year, the Convenor must give to the Minister a report of the management of the administrative affairs of the Review Board during the financial year.
(2) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.
Part 8—Miscellaneous
86 Immunity from suit
Criminal or civil proceedings do not lie against the following persons:
(a) a member of the Board;
(b) a member of the Review Board;
(c) a member of staff assisting the Board or the Review Board;
in relation to anything done, or omitted to be done, in good faith by the person in connection with the performance or purported performance of functions or duties, or the exercise or purported exercise of powers, conferred by this Act.
87 Evidentiary certificates
Applications to the Director
(1) A person may apply to the Director for a certificate about action taken, or not taken, under this Act by the Director or by the Board.
(2) If the application is not an enforcement application, the Director must give the certificate to the applicant after the applicant pays the prescribed fee.
Note: For an applicant that is the Commonwealth or a Commonwealth entity: see section 91A.
(3) If the application is an enforcement application, the Director must give the certificate to the applicant after the applicant makes the application. The applicant must pay the prescribed fee on or after making the application.
Note: For an applicant that is the Commonwealth or a Commonwealth entity: see section 91A.
Applications to the Convenor
(4) A person may apply to the Convenor for a certificate about action taken, or not taken, under this Act by the Convenor or by the Review Board.
(5) If the application is not an enforcement application, the Convenor must give the certificate to the applicant after the applicant pays the prescribed fee.
Note: For an applicant that is the Commonwealth or a Commonwealth entity: see section 91A.
(6) If the application is an enforcement application, the Convenor must give the certificate to the applicant after the applicant makes the application. The applicant must pay the prescribed fee on or after making the application.
Note: For an applicant that is the Commonwealth or a Commonwealth entity: see section 91A.
87A Board to make decisions within a specified time
(1) The Board must make a decision on:
(a) an application for the classification of a publication, film or computer game (other than an enforcement application); or
(b) an application for approval of an advertisement; or
(c) an application for an assessment of the likely classification of an unclassified film or an unclassified computer game;
within 20 business days, or such shorter period as is prescribed by the regulations for the application. The time from which the period runs is to be worked out in the way prescribed by the regulations.
(2) If the Board does not make the decision within the period, the Director must state the reason for the Board not doing so in the annual report given to the Minister under section 67.
87B Review Board to make decisions within a specified time
(1) The Review Board must make a decision on an application for a review of a decision within 20 business days, or such other period as is prescribed by the regulations for the application. The time from which the period runs is to be worked out in the way prescribed by the regulations.
(2) If the Review Board does not make the decision within the period, the Convenor must state the reason for the Review Board not doing so in the annual report given to the Minister under section 85.
88 Additional functions of Board
The Director may, with the written approval of the Minister, enter into an arrangement with a person (including an authority of the Commonwealth) for the performance of services by the Board in relation to material made available on a telecommunications service or other communications service.
88A Staff assisting the Board and the Review Board
The staff assisting the Board and the Review Board are to be persons engaged under the Public Service Act 1999 and made available for the purpose by the Secretary of the Department.
88B Referral of certain unclassified material to law enforcement agencies
(1) If the Secretary of the Department is of the opinion that an unclassified publication, unclassified film or unclassified computer game (the unclassified material) would, if classified, be likely to be classified RC, the Secretary may provide a copy of the unclassified material to:
(a) the Australian Federal Police; or
(b) the police force of a State or Territory; or
(c) an authority or person responsible for law enforcement in a foreign country or a part of a foreign country.
(2) The Secretary may, in writing, delegate his or her power under subsection (1) to a member of staff mentioned in section 88A.
(3) Subsection (1) does not, by implication, limit any other power or function that the Secretary has to provide information or things to the bodies mentioned in that subsection, or to any other body.
89 Service of notices
A notice that may be given to a person under this Act is taken to have been given to the person if:
(a) it is personally delivered to the person; or
(b) it is sent by post addressed to the person’s place of residence or business last known to the Director or Convenor; or
(c) it is left at the person’s place of residence or business last known to the Director or Convenor with a person who is apparently at least 16 and is apparently living or employed at that place.
90 Payments to the States and Territories
(1) The Minister may enter into an agreement with a participating Minister under which amounts are to be paid to the participating Minister’s State or Territory in respect of the administration by the State or Territory of the scheme referred to in section 3.
(2) Payments referred to in subsection (1) are to be made out of the Consolidated Revenue Fund, which is appropriated accordingly.
91 Waiver of fees
Fee waiver on application
(1) The Minister may, on written application, waive all or part of the payment of fees payable, or notionally payable, in respect of an application under this Act if:
(a) in the Minister’s opinion it is in the public interest to do so for public health or educational reasons; or
(b) the body that would be liable, or notionally liable, for the fee is:
(i) the Commonwealth, a State or a Territory (or an authority of one of those bodies); or
(ii) an entity that is registered under the Australian Charities and Not‑for‑profits Commission Act 2012; or
(iii) a not‑for‑profit entity that is not an ACNC type of entity; or
(c) the payment is for special interest material having a limited distribution that is:
(i) wholly or mainly a documentary record of an event; or
(ii) of a cultural or like nature; or
(iii) a short film from a new or emerging film maker;
and, in the Minister’s opinion, it is in the public interest to do so.
Notice of decision
(2) The Minister must, within 28 days after making a decision under subsection (1), notify the applicant in writing of the decision and of the reasons for the decision.
(3) The notice must include a statement to the effect that, subject to the Administrative Appeals Tribunal Act 1975, an application may be made to the Administrative Appeals Tribunal for a review of the decision.
(4) A failure to comply with subsection (3) does not invalidate the decision.
Review by AAT
(5) Applications may be made to the Administrative Appeals Tribunal for review of decisions under subsection (1).
Delegation
(6) The Minister may, in writing, delegate his or her power to waive fees to:
(a) the Secretary of the Department; or
(b) an SES employee, or acting SES employee, in the Department.
91A Commonwealth not liable to pay a fee
(1) The Commonwealth is not liable to pay a fee that is payable under this Act. However, it is the Parliament’s intention that the Commonwealth should be notionally liable to pay such a fee.
(2) The Finance Minister may give such written directions as are necessary or convenient for carrying out or giving effect to subsection (1) and, in particular, may give directions in relation to the transfer of money within an account, or between accounts, operated by the Commonwealth.
(3) Directions under subsection (2) have effect, and must be complied with, despite any other Commonwealth law.
(4) In subsections (1) and (2), Commonwealth includes a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013) that cannot be made liable to taxation by a Commonwealth law.
Note: For persons that can be made liable to pay tax, but are exempt from the liability because of another Commonwealth law: see section 91B.
91B Cancellation of exemptions from fees
(1) This section cancels the effect of a provision of another Act that would have the effect of exempting a person from liability to pay a fee payable under this Act.
(2) The cancellation does not apply if the provision of the other Act:
(a) commences after this section commences; and
(b) refers specifically to a fee payable under this Act.
91C Debts due to the Commonwealth
A fee payable under this Act is recoverable as a debt due to the Commonwealth.
92 Act not to apply to broadcasting services under Broadcasting Services Act
This Act does not apply to broadcasting services to which the Broadcasting Services Act 1992 applies.
92A Proceedings arising out of administration of Board or Review Board
Any judicial or other proceeding relating to a matter arising out of the management of the administrative affairs of the Board or the Review Board, including any proceeding relating to anything done by the Director or the Convenor, may be instituted by or against the Commonwealth.
93 Regulations
General regulation‑making power
(1) The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Regulations in relation to assessments of additional content
(2) Without limiting subsection (1), the regulations may prescribe:
(aa) for the purposes of paragraphs 17A(2)(c), 17B(1)(b) and 17C(1)(b)—circumstances in which an assessment of a computer game is taken to contain misleading, incorrect or grossly inadequate information; and
(a) for the purposes of subparagraphs 17A(2)(a)(ii), 21AA(a)(ii), 21AC(a)(ii) and 22E(2)(a)(ii)—circumstances in which an assessment of classifiable elements is taken to be misleading, incorrect or grossly inadequate; and
(b) for the purposes of paragraphs 22E(2)(c), 22F(1)(b) and 22H(1)(b)—circumstances in which an assessment of additional content is taken to contain misleading, incorrect or grossly inadequate information.
(3) To avoid doubt, the regulations are not to be taken to limit the circumstances in which:
(a) an assessment is misleading, incorrect or grossly inadequate; or
(b) an assessment contains misleading, incorrect or grossly inadequate information.
Part 9—Transitional provisions and repeals
94 Definitions
In this Part:
censor means:
(a) the Chief Censor, the Deputy Chief Censor or another member of the former Board; or
(b) a Deputy Censor appointed under the Customs (Cinematograph Films) Regulations; or
(c) a classification officer appointed under the Indecent Articles and Classified Publications Act 1975 of New South Wales, the Classification of Publications Ordinance 1983 of the Australian Capital Territory or the Classification of Publications and Films Act of the Northern Territory.
former Board means the Censorship Board constituted under the Customs (Cinematograph Films) Regulations.
former Review Board means the Film and Literature Board of Review constituted under the Customs (Cinematograph Films) Regulations.
95 Service of member of former Board or former Review Board
For the purposes of this Act, service by a person as a member of the former Board or of the former Review Board is taken to be service as a member of the Board or the Review Board.
96 Decisions of former Board and former Review Board
(1) A classification, approval or determination made by the former Board or by a censor has effect as if it had been made by the Board under this Act.
(2) A classification, approval or determination made by the former Review Board has effect as if it had been made by the Review Board under this Act.
97 Pending applications
If an application for:
(a) classification of a film, a publication or a computer game; or
(b) approval of an advertisement; or
(d) review of a decision;
is, on the day fixed under subsection 2(2) or the day applicable under subsection 2(3), pending under a law of a State or Territory, the application may be dealt with as if it had been made under this Act.
97A Reclassification
(1) The Board may, on its own initiative, reclassify a publication or film where the publication or film was classified, in response to an enforcement application, by the former Board or a censor under the law of one State or Territory only.
(2) The Board may also, on its own initiative, reclassify a publication or film where the publication or film was classified, in response to an enforcement application, by the former Board or a censor and was given different classifications in different States or Territories.
98 Repeals
(1) The Customs (Cinematograph Films) Regulations of the Commonwealth are repealed.
(2) The Classification of Publications Ordinance 1983 of the Australian Capital Territory is repealed.
Part 10—Material prohibited in certain areas in the Northern Territory
Division 1—Preliminary
98A Main object of Part
The main object of this Part is to enable special measures to be taken to protect children living in Indigenous communities in the Northern Territory from being exposed to prohibited material.
99 Definitions
In this Part:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
body corporate manager, in relation to a body corporate, means:
(a) the manager or governing officer (however described) of the body corporate; or
(b) a member of the governing body (however described) of the body corporate.
child means a person who is under 18 years of age.
Indigenous Affairs Minister means the Minister administering the Aboriginal Land Rights (Northern Territory) Act 1976.
Indigenous Affairs Secretary means the Secretary of the Department administered by the Minister who administers the Aboriginal Land Rights (Northern Territory) Act 1976.
item, in relation to prohibited material, means a publication, film or computer game.
just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.
level 1 prohibited material means:
(a) a publication classified Category 1 restricted or Category 2 restricted; or
(b) an unclassified publication that contains material that would be likely to cause it to be classified Category 1 restricted or Category 2 restricted; or
(c) a film classified X 18+; or
(d) an unclassified film that contains material that would be likely to cause it to be classified X 18+; or
(e) a prohibited advertisement.
level 2 prohibited material means:
(a) a publication, film or computer game classified RC; or
(b) an unclassified publication, film or computer game that contains material that would be likely to cause it to be classified RC.
material includes any computer data or other form of recording from which sounds or written or pictorial matter may be produced.
police officer means a constable within the meaning of the Crimes Act 1914.
postal service means a postal service within the meaning of paragraph 51(v) of the Constitution.
prohibited advertisement means an advertisement for a publication, a film or a computer game:
(a) that has been refused approval under Part 3; or
(b) that contains material that would be likely to cause it to be refused approval under Part 3.
prohibited material means:
(a) level 1 prohibited material; or
(b) level 2 prohibited material.
prohibited material area means an area in the Northern Territory in relation to which a determination under subsection 100A(1) is in force.
seized material means material seized under section 106.
State/Territory body corporate manager, in relation to a body corporate that operates within a State or Territory, means a person who takes part in managing, administering or governing the business of the body corporate in the State or Territory.
supply includes supply by way of sale, exchange, gift, lease, loan, hire or hire‑purchase.
99A The Racial Discrimination Act is not affected
This Part does not affect the operation of the Racial Discrimination Act 1975.
100A Prohibited material areas
(1) The Indigenous Affairs Minister may, by legislative instrument, determine that an area in the Northern Territory is a prohibited material area.
(2) The Indigenous Affairs Minister may, by legislative instrument, revoke or vary a determination under subsection (1).
(3) The Indigenous Affairs Minister may make a determination under subsection (1) or (2):
(a) on the Indigenous Affairs Minister’s own initiative; or
(b) following a request made to the Indigenous Affairs Minister by, or on behalf of, a person who is ordinarily resident in the area to which the determination relates.
Community consultation
(4) Before making a determination under subsection (1) or (2) in relation to an area, the Indigenous Affairs Minister must ensure that:
(a) information setting out:
(i) the proposal to make the determination; and
(ii) an explanation, in summary form, of the consequences of the making of the determination;
has been made available in the area; and
(b) people living in the area have been given a reasonable opportunity to make submissions to the Indigenous Affairs Minister about:
(i) the proposal to make the determination; and
(ii) the consequences of the making of the determination; and
(iii) their circumstances, concerns and views, so far as they relate to the proposal.
(5) A failure to comply with subsection (4) does not affect the validity of a determination under subsection (1) or (2).
Criteria for making a determination
(6) In making a determination under subsection (1) or (2) in relation to an area, the Indigenous Affairs Minister must have regard to the following matters:
(a) the object of this Part (see section 98A);
(b) the wellbeing of people living in the area;
(c) whether there is reason to believe that people living in the area have been the victims of violence or sexual abuse;
(d) the extent to which people living in the area have expressed their concerns about being at risk of violence or sexual abuse;
(e) whether there is reason to believe that children living in the area have been exposed to prohibited material;
(f) the extent to which people living in the area have expressed the view that their wellbeing will be improved if this Part continues to apply in relation to the area;
(g) any submissions of the kind referred to in paragraph (4)(b);
(h) the views of relevant law enforcement authorities;
(i) any other matter that the Indigenous Affairs Minister considers relevant.
(7) If:
(a) the Indigenous Affairs Minister makes a determination under subsection (1) in relation to an area; and
(b) under subsection (2), the Indigenous Affairs Minister:
(i) revokes the determination; or
(ii) varies the determination so that the area is no longer a prohibited material area;
then this Part continues to apply in relation to that area, after the revocation or variation takes effect, in relation to things done, or omitted to be done, before the revocation or variation takes effect.
100C Delegation by Indigenous Affairs Minister
The Indigenous Affairs Minister may, by writing, delegate any or all of his or her powers and functions under section 100A to the Indigenous Affairs Secretary.
Division 2—Offences
101 Possession or control of level 1 prohibited material in prohibited material areas
A person commits an offence if:
(a) the person has possession or control of material; and
(b) the material is level 1 prohibited material; and
(c) the material is in a prohibited material area.
Penalty: 50 penalty units.
Note: For the liability of a body corporate manager, or a State/Territory body corporate manager, see section 104.
102 Possession or control of level 2 prohibited material in prohibited material areas
A person commits an offence if:
(a) the person has possession or control of material; and
(b) the material is level 2 prohibited material; and
(c) the material is in a prohibited material area.
Penalty: 100 penalty units.
Note: For the liability of a body corporate manager, or a State/Territory body corporate manager, see section 104.
103 Supplying prohibited material in and to prohibited material areas
Supply generally
(1) A person commits an offence if:
(a) the person:
(i) supplies material to a third person; or
(ii) prepares material intending to supply any of it, or believing that another person intends to supply any of it, to a third person; or
(iii) transports material intending to supply any of it, or believing that another person intends to supply any of it, to a third person; or
(iv) guards or conceals material intending to supply any of it, or intending to assist another person to supply any of it, to a third person; or
(v) possesses material intending to supply any of it to a third person; and
(b) the third person is in a prohibited material area; and
(c) the material is prohibited material.
Penalty: 100 penalty units.
Note: For the liability of a body corporate manager, or a State/Territory body corporate manager, see section 104.
Supplying 5 or more items
(2) A person commits an offence if:
(a) the person:
(i) supplies material to a third person; or
(ii) prepares material intending to supply any of it, or believing that another person intends to supply any of it, to a third person; or
(iii) transports material intending to supply any of it, or believing that another person intends to supply any of it, to a third person; or
(iv) guards or conceals material intending to supply any of it, or intending to assist another person to supply any of it, to a third person; or
(v) possesses material intending to supply any of it to a third person; and
(b) the third person is in a prohibited material area; and
(c) the material is prohibited material; and
(d) the material consists of 5 or more items of prohibited material.
Penalty: 200 penalty units or imprisonment for 2 years, or both.
Note: For the liability of a body corporate manager, or a State/Territory body corporate manager, see section 104.
(3) For the purposes of proving an offence against subsection (2), a person who engages in conduct specified in subparagraph (2)(a)(ii), (iii), (iv) or (v) in a prohibited material area, is taken to have done so:
(a) intending to supply the material; or
(b) believing that another person intends to supply the material; or
(c) intending to assist another person to supply the material;
as the subparagraph requires, to a person in a prohibited material area.
(4) Subsection (3) does not apply in relation to a subparagraph mentioned in that subsection if the person proves that he or she did not have the intention or belief required by that subparagraph.
Note: A defendant bears a legal burden in relation to the matters in subsection (4)—see section 13.4 of the Criminal Code.
104 Liability of body corporate managers
Body corporate managers generally
(1) A body corporate manager commits an offence if:
(a) the body corporate commits an offence against this Part; and
(b) the manager knew that the offence would be committed; and
(c) the manager was in a position to influence the conduct of the body corporate in relation to the commission of the offence; and
(d) the manager failed to take all reasonable steps to prevent the commission of the offence.
State/Territory body corporate managers
(2) A State/Territory body corporate manager for a State or Territory commits an offence if:
(a) the body corporate commits an offence against this Part within the State or Territory; and
(b) the manager knew that the offence would be committed; and
(c) the manager was in a position to influence the conduct of the body corporate in relation to the commission of the offence; and
(d) the manager failed to take all reasonable steps to prevent the commission of the offence.
Maximum penalties
(3) The maximum penalty for an offence against subsection (1) or (2) is one‑fifth of the maximum penalty that could be imposed for the offence committed by the body corporate, subject to subsection (4).
(4) An offence against subsection (1) or (2) that relates to an offence committed by a body corporate against subsection 103(2) (supplying 5 or more items in or to a prescribed area) is punishable by either or both of the following:
(a) a pecuniary penalty not exceeding 200 penalty units;
(b) imprisonment for a term not exceeding 2 years.
105 Division does not apply to postal services
This Division does not apply in relation to anything done in the normal course of the provision of a postal service.
Division 3—Seizure and forfeiture of prohibited material
106 Seizure of prohibited material
If:
(a) a police officer finds material in a prohibited material area; and
(b) the officer suspects on reasonable grounds that the material is prohibited material;
the officer may seize the material.
Note: See Part IAA of the Crimes Act 1914 for police search powers.
107 Seizure notices
(1) The police officer who is responsible for the seized material (the responsible officer) must, within 7 days after the day on which the material was seized, serve a seizure notice on:
(a) the owner of the material; or
(b) if the owner of the material cannot be identified after reasonable inquiries—the person from whom the material was seized.
(2) Subsection (1) does not apply if:
(a) both:
(i) the owner of the material cannot be identified after reasonable inquiries; and
(ii) the material was not seized from a person; or
(b) it is not possible to serve the person required to be served under subsection (1).
(3) The seizure notice must:
(a) identify the material; and
(b) state the date on which the material was seized; and
(c) state the ground or grounds on which the material was seized; and
(d) explain the procedures for the possible return of the material set out in sections 108 and 109; and
(e) provide contact details for the responsible officer; and
(f) state that, if the material is not returned to the owner under section 108 or 109, it is forfeited to the Commonwealth.
108 Return of seized material—on request
(1) The owner of the seized material may request the responsible officer to return the material.
(2) The request must be made:
(a) within 60 days after the date of the seizure notice; or
(b) if subsection 107(2) applied so that a seizure notice was not served—within 60 days after the day on which the material was seized.
(3) If:
(a) the owner requests the return of the material within the time specified under subsection (2); and
(b) the responsible officer is satisfied, on reasonable grounds, that the material is not prohibited material;
the responsible officer must return the material to the owner. Otherwise the request must be refused.
109 Return of seized material—application to magistrate
(1) If the responsible officer refuses to return the material, the owner may apply to a magistrate for an order that the material is to be returned.
(2) The application must be made within 60 days after the responsible officer’s refusal.
(3) If the magistrate is satisfied that the material is not prohibited material, the magistrate must order that the material is to be returned. Otherwise the magistrate must refuse to make the order.
110 Seized material forfeited to the Commonwealth
Seized material that is not returned to its owner under section 108 or 109:
(a) is forfeited to the Commonwealth; and
(b) must be destroyed, disposed of or otherwise dealt with as the Minister directs.
111 Relationship of Division to other laws
The powers conferred, and duties imposed, by this Division on police officers are in addition to, and not in derogation of, any other powers conferred, or duties imposed, by any other law of the Commonwealth or the law of a State or Territory.
Division 4—Miscellaneous
112 Evidence
In proceedings for an offence against this Part, a certificate under section 87 is prima facie evidence of the matters stated in the certificate.
113 Compensation for acquisition of property
(1) Subsection 50(2) of the Northern Territory (Self‑Government) Act 1978 does not apply in relation to any acquisition of property referred to in that subsection that occurs as a result of the operation of this Part.
(2) However, if the operation of this Part would result in an acquisition of property to which paragraph 51(xxxi) of the Constitution applies from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.
(3) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.
114 Review of operation of this Part
(1) The Indigenous Affairs Minister must cause an independent review to be undertaken of the first 7 years of the operation of this Part.
(2) The review must:
(a) assess the effectiveness of the special measures provided for by this Part; and
(b) consider any other matter specified by the Indigenous Affairs Minister.
(3) The review must be completed, and a report must be prepared, before the end of 8 years after this Part commences.
(4) The person undertaking the review must give the report of the review to the Indigenous Affairs Minister.
(5) The Indigenous Affairs Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of receiving it.
115 Indigenous Affairs Minister may determine that provisions of this Part cease to have effect
(1) The Indigenous Affairs Minister may, by legislative instrument, determine that some or all of the provisions of this Part cease to have effect.
Note: Under section 116, all of the provisions of this Part cease to have effect 10 years after the day section 3 of the Stronger Futures in the Northern Territory Act 2012 commences. This section allows the Indigenous Affairs Minister to determine that some or all of the provisions of this Part cease to have effect before then.
(2) The Indigenous Affairs Minister may, by legislative instrument, revoke a determination under subsection (1).
Community consultation
(3) Before making a determination under subsection (1) or (2), the Indigenous Affairs Minister must ensure that:
(a) information setting out:
(i) the proposal to make the determination; and
(ii) an explanation, in summary form, of the consequences of the making of the determination;
has been made available to people living in prohibited material areas; and
(b) people living in prohibited material areas have been given a reasonable opportunity to make submissions to the Indigenous Affairs Minister about:
(i) the proposal to make the determination; and
(ii) the consequences of making the determination; and
(iii) their circumstances, concerns and views, so far as they relate to the proposal.
(4) A failure to comply with subsection (3) does not affect the validity of a determination under subsection (1) or (2).
Criteria for making a determination
(5) In making a determination under subsection (1) or (2) in relation to an area, the Indigenous Affairs Minister must have regard to the following matters:
(a) the object of this Part (see section 98A);
(b) the wellbeing of people living in prohibited material areas;
(c) whether there is reason to believe that people living in prohibited material areas have been the victims of violence or sexual abuse;
(d) the extent to which people living in prohibited material areas have expressed their concerns about being at risk of violence or sexual abuse;
(e) whether there is reason to believe that children living in prohibited material areas have been exposed to prohibited material;
(f) the extent to which people living in prohibited material areas have expressed the view that their wellbeing will be improved if this Part applies;
(g) any submissions of the kind referred to in paragraph (3)(b);
(h) the views of relevant law enforcement authorities;
(i) any other matter that the Indigenous Affairs Minister considers relevant.
(6) If the Indigenous Affairs Minister makes a determination under subsection (1), then this Part continues to apply after the determination takes effect in relation to things done, or omitted to be done, before the determination takes effect.
(7) If, under subsection (2), the Indigenous Affairs Minister revokes a determination under subsection (1), then the provisions of this Part that were specified in the determination under subsection (1) apply again after the revocation takes effect.
116 Sunset provision
This Part ceases to have effect 10 years after the day section 3 of the Stronger Futures in the Northern Territory Act 2012 commences.
