Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001

i Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001 Act No. 69/2001 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purposes 1 2. Commencement 2 3. Principal Act 2 PART 2—AMENDMENT OF THE CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) (ENFORCEMENT) ACT 1995 3 4. Definitions 3 5. New section 5 substituted 4 5. Application of Act 4 6. Determined markings and consumer advice 4 7. Category 1 restricted publications 5 8. Category 2 restricted publications 5 9. New sections 27A and 27B inserted 6 27A. Sale or delivery of publications contrary to conditions 6 27B. Consumer advice for Unrestricted publications 6 10. Misleading or deceptive marking 7 11. Computer games to bear determined markings and consumer advice 7 12. Advertisements 8 13. New section 60A inserted 10 60A. Calling in films for classification 10 14. Calling in computer games for classification 11 15. New sections 62A and 62B inserted 11 62A. Calling in a publication, film or computer game for reclassification 11 62B. Obtaining copies for review 12 16. New section 57A inserted 13 57A. Publication or transmission of child pornography 13 17. New section 87B inserted 13 -- 1 of 19 -- Section Page ii 87B. Transitional provisions (2001 amendments) 13 18. Amendment of section 87B 13 PART 3—AMENDMENT OF OTHER ACTS 15 19. Amendment of Magistrates' Court Act 1989 15 40. Publication or transmission of child pornography 15 20. Amendment of Crimes Act 1958 15 ═══════════════ ENDNOTES 17 -- 2 of 19 -- 1 Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001 † [Assented to 7 November 2001] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purposes The purposes of this Act are— (a) to amend the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 as a consequence of amendments to the Classification Victoria No. 69 of 2001 -- 3 of 19 -- Act No. 69/2001 Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001 2 (Publications, Films and Computer Games) Act 1995 of the Commonwealth; and (b) to make miscellaneous amendments to that Act, the Magistrates' Court Act 1989 and the Crimes Act 1958. 2. Commencement (1) This Part and sections 16, 17, 19 and 20 come into operation on the day after the day on which this Act receives the Royal Assent. (2) Subject to sub-section (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (3) If a provision referred to in sub-section (2) does not come into operation before 23 March 2002, it comes into operation on that day. 3. Principal Act In this Act, the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 is called the Principal Act. _______________ s. 2 See: Act No. 90/1995 Reprint No. 1 as at 1 January 1999. LawToday: www.dms. dpc.vic. gov.au -- 4 of 19 -- Act No. 69/2001 Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001 3 PART 2—AMENDMENT OF THE CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) (ENFORCEMENT) ACT 1995 4. Definitions In section 3 of the Principal Act— (a) for the definition of "contentious material" substitute— ' "contentious material" has the same meaning as in the Commonwealth Act;'; (b) after the definition of "Director" insert— ' "exempt computer game" has the same meaning as in the Commonwealth Act; "exempt film" has the same meaning as in the Commonwealth Act;'; (c) after the definition of "guardian" insert— ' "international flight", in relation to an aircraft, means a flight that passes through the air space over the territory of more than one country and includes any part of the flight that may occur within Australia; "international voyage", in relation to a vessel, means a voyage, whether direct or indirect, between a place in Australia and a place outside Australia and includes any part of the voyage that may occur within Australia;'; (d) in the definition of "place", after "aircraft" insert "(except a vessel on an international voyage or an aircraft on an international flight)"; s. 4 -- 5 of 19 -- Act No. 69/2001 Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001 4 (e) after the definition of "restricted publications area" insert— ' "Review Board" means the Classification Review Board established by the Commonwealth Act;'; (f) for the definition of "submittable publication" substitute— ' "submittable publication" has the same meaning as in the Commonwealth Act and includes a publication called in by the Director under section 60.'. 5. New section 5 substituted For section 5 of the Principal Act substitute— "5. Application of Act This Act does not apply to— (a) exempt films or exempt computer games; or (b) broadcasting services to which the Broadcasting Services Act 1992 of the Commonwealth applies.". 6. Determined markings and consumer advice In section 18 of the Principal Act, for sub-section (4) substitute— "(4) If— (a) a film is reclassified under section 39 or 97A of the Commonwealth Act; or (b) the Board revokes a classification or consumer advice for a film under section 22B(3) of that Act— display of the determined markings and consumer advice applicable to the film before that reclassification or revocation is s. 5 -- 6 of 19 -- Act No. 69/2001 Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001 5 sufficient compliance with this section for a period of 14 days after the decision to reclassify or revoke takes effect.". 7. Category 1 restricted publications (1) In section 26(2) of the Principal Act, for "If" substitute "Subject to any condition imposed by the Board under section 13A(2) of the Commonwealth Act, if". (2) In section 26 of the Principal Act, for sub-section (3) substitute— "(3) If— (a) a publication is reclassified under section 39 or 97A of the Commonwealth Act; or (b) the Board revokes a classification for a publication under section 22B(3) of that Act— it is sufficient compliance with sub-section (1) for a period of 14 days after the decision to reclassify or revoke takes effect if the publication bears the determined markings applicable to the publication before that reclassification or revocation.". 8. Category 2 restricted publications In section 27 of the Principal Act, for sub-section (3) substitute— "(3) If— (a) a publication is reclassified under section 39 or 97A of the Commonwealth Act; or s. 7 -- 7 of 19 -- Act No. 69/2001 Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001 6 (b) the Board revokes a classification for a publication under section 22B(3) of that Act— it is sufficient compliance with sub-section (1)(d) for a period of 14 days after the decision to reclassify or revoke takes effect if the publication bears the determined markings applicable to the publication before that reclassification or revocation.". 9. New sections 27A and 27B inserted After section 27 of the Principal Act insert— "27A. Sale or delivery of publications contrary to conditions If a publication is classified Unrestricted or Category 1 restricted subject to a condition imposed under section 13A of the Commonwealth Act, a person must not sell or deliver the publication except in accordance with that condition. Penalty: 60 penalty units or imprisonment for 6 months. 27B. Consumer advice for Unrestricted publications A person must not sell a publication classified Unrestricted in respect of which the Board has determined consumer advice under section 20(2) of the Commonwealth Act unless the consumer advice is displayed on the publication or the packaging of the publication. Penalty: 60 penalty units or imprisonment for 6 months.". s. 9 -- 8 of 19 -- Act No. 69/2001 Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001 7 10. Misleading or deceptive marking In section 28 of the Principal Act, for sub-section (3) substitute— "(3) If— (a) a publication is reclassified under section 39 or 97A of the Commonwealth Act; or (b) the Board revokes a classification for a publication under section 22B(3) of that Act— it is sufficient compliance with this section for a period of 14 days after the decision to reclassify or revoke takes effect if the publication bears the determined markings applicable to the publication before that reclassification or revocation.". 11. Computer games to bear determined markings and consumer advice (1) In section 40 of the Principal Act, after sub-section (3) insert— "(3A) A person must not make a computer game available for playing on a pay and play basis (for example, a coin operated arcade game) unless the determined markings relevant to the classification of the computer game and relevant consumer advice, if any, are displayed on the device used for playing the game. Penalty: in the case of a natural person, 20 penalty units; in the case of a body corporate, 50 penalty units. s. 10 -- 9 of 19 -- Act No. 69/2001 Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001 8 (3B) If two or more computer games are available for playing on a device referred to in sub-section (3A), the determined markings and consumer advice to be displayed on the device are those relevant to the computer game with the highest classification under the Commonwealth Act.". (2) In section 40 of the Principal Act, for sub-section (4) substitute— "(4) If— (a) a computer game is reclassified under section 39 of the Commonwealth Act; or (b) the Board revokes a classification or consumer advice for a computer game under section 22B(3) of that Act— display of the determined markings and consumer advice applicable to the computer game before that reclassification or revocation is sufficient compliance with this section for a period of 14 days after the decision to reclassify or revoke takes effect.". 12. Advertisements (1) In section 46 of the Principal Act, after paragraph (b) insert— "(ba) if the advertisement was approved under section 29 of the Commonwealth Act and the approval is revoked under section 13(5) or 21A of that Act; or". s. 12 -- 10 of 19 -- Act No. 69/2001 Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001 9 (2) In section 52 of the Principal Act, for sub- section (2) substitute— "(2) If— (a) a film, publication or computer game is reclassified under section 39 or 97A of the Commonwealth Act; or (b) the Board revokes a classification or consumer advice for a film, publication or computer game under section 22B(3) of that Act— display of the determined markings and consumer advice applicable to the film, publication or computer game before that reclassification or revocation is sufficient compliance with sub-section (1) for a period of 14 days after the decision to reclassify or revoke takes effect.". (3) In section 53 of the Principal Act, for sub-section (3) substitute— "(3) If— (a) a film, publication or computer game is reclassified under section 39 or 97A of the Commonwealth Act; or (b) the Board revokes a classification for a film, publication or computer game under section 22B(3) of that Act— publication of the determined markings applicable to the film, publication or computer game before that reclassification or revocation is sufficient compliance with sub-section (2) for a period of 14 days after the decision to reclassify or revoke takes effect.". s. 12 -- 11 of 19 -- Act No. 69/2001 Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001 10 13. New section 60A inserted After section 60 of the Principal Act insert— "60A. 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 Victoria, or the Director has reasonable grounds to believe that it will be published in Victoria— 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 sub-section (1) to be published in the Commonwealth 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: 100 penalty units. (4) It is a defence to a prosecution for an offence against sub-section (3) to prove that the defendant did not intend— (a) to publish the film in Victoria; or (b) to cause, authorise, permit or license the film to be published in Victoria.". s. 13 -- 12 of 19 -- Act No. 69/2001 Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001 11 14. Calling in computer games for classification (1) In section 61 of the Principal Act, after sub-section (1) insert— "(1A) If— (a) the Director has reasonable grounds to believe that an unclassified computer game is not an exempt computer game; and (b) the computer game is being published in Victoria, or the Director has reasonable grounds to believe that it will be published in Victoria— the Director may, by notice in writing given to the publisher of the computer game, require the publisher to submit an application for classification of the computer game.". (2) In section 61(2) of the Principal Act, after "(1)" insert "or (1A)". 15. New sections 62A and 62B inserted After section 62 of the Principal Act insert— "62A. Calling in a publication, film or computer game for reclassification (1) If— (a) the Board proposes to reclassify a publication, film or computer game under section 39 of the Commonwealth Act; and (b) the publisher of the publication, film or computer game resides in Victoria or has an office in Victoria— the Director may, by notice in writing given to the publisher, require the publisher to submit a copy of the publication, film or s. 14 -- 13 of 19 -- Act No. 69/2001 Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001 12 computer game for the purpose of reclassifying it. (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: 100 penalty units. (3) It is a defence to a prosecution for an offence against sub-section (2) to prove that the defendant did not have a copy of the publication, film or computer game. 62B. Obtaining copies for review (1) If— (a) an application is made for a review of a classification decision under the Commonwealth Act 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 computer game and a copy is not available to it; and (c) the original applicant or the publisher of the publication, film or computer game resides in Victoria or has an office in Victoria— the Director 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 computer game available for the purpose of the review. (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. s. 15 -- 14 of 19 -- Act No. 69/2001 Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001 13 Penalty: 100 penalty units. (3) It is a defence to a prosecution for an offence against sub-section (2) to prove that the defendant did not have a copy of the publication, film or computer game.". 16. New section 57A inserted After section 57 of the Principal Act insert— "57A. Publication or transmission of child pornography A person who knowingly uses an on-line information service to publish or transmit, or make available for transmission, objectionable material that describes or depicts a person who is, or looks like, a minor under 16 engaging in sexual activity or depicted in an indecent sexual manner or context is guilty of an indictable offence and liable to a term of imprisonment not exceeding 10 years.". 17. New section 87B inserted After section 87A of the Principal Act insert— "87B. Transitional provisions (2001 amendments) Section 57A, as inserted by section 16 of the Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001, applies only to a use of an on-line information service on or after the commencement of section 16 of that Act.". 18. Amendment of section 87B At the end of section 87B of the Principal Act insert— s. 16 -- 15 of 19 -- Act No. 69/2001 Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001 14 "(2) Section 40(3A) and (3B), as inserted by section 11(1) of the Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001, applies to a computer game whether published before or after the commencement of section 11(1) of that Act. (3) Sections 62A and 62B, as inserted by section 15 of the Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001, apply to a publication, film or computer game whether published before or after the commencement of section 15 of that Act. (4) An amendment of this Act made by any other provision of the Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001 only applies to— (a) a publication, film or computer game first published on or after the commencement of that provision; or (b) a publication, film or computer game for which an application for classification is made on or after that commencement.". _______________ s. 18 -- 16 of 19 -- Act No. 69/2001 Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001 15 PART 3—AMENDMENT OF OTHER ACTS 19. Amendment of Magistrates' Court Act 1989 In Schedule 4 to the Magistrates' Court Act 1989, after clause 39 insert— "40. Publication or transmission of child pornography Offences under section 57A of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995.". 20. Amendment of Crimes Act 1958 (1) At the end of section 68 of the Crimes Act 1958 insert— "(2) Nothing in sub-section (1) makes it an offence for— (a) any member or officer of a law enforcement agency; or (b) a person authorised in writing by the Chief Commissioner of Police assisting a member or officer; or (c) a person belonging to a class of persons authorised in writing by the Chief Commissioner of Police assisting a member or officer— to print or otherwise make or produce child pornography in the exercise or performance of a power, function or duty conferred or imposed on the member or officer by or under this or any other Act or at common law.". s. 19 -- 17 of 19 -- Act No. 69/2001 Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001 16 (2) In section 70 of the Crimes Act 1958, for sub- section (4) substitute— "(4) Nothing in this section makes it an offence for— (a) any member or officer of a law enforcement agency; or (b) a person authorised in writing by the Chief Commissioner of Police assisting such a member or officer; or (c) a person belonging to a class of persons authorised in writing by the Chief Commissioner of Police assisting such a member or officer— to have child pornography in his or her possession in the exercise or performance of a power, function or duty conferred or imposed on the member or officer by or under this or any other Act or at common law.". ═══════════════ s. 20 -- 18 of 19 -- Act No. 69/2001 Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2001 17 ENDNOTES † Minister's second reading speech— Legislative Assembly: 19 September 2001 Legislative Council: 16 October 2001 The long title for the Bill for this Act was "to amend the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 mainly as a consequence of amendments to the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth, to amend the Magistrates' Court Act 1989 and the Crimes Act 1958 and for other purposes." Endnotes -- 19 of 19 --