Bills Digest No. 119 1997-98
Classification (Publications, Films and Computer Games) Amendment Bill
1997
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have any
official legal status. Other sources should be consulted to determine the
subsequent official status of the Bill.
CONTENTS
Classification (Publications, Films and Computer Games) Amendment
Bill 1997
Date Introduced: 26 November 1997
House: House of Representatives
Portfolio: Attorney-General
Commencement: On Royal Assent with the exception of Part 2 of Schedule
1 dealing with the imposition of charges, which commences on 1 July 1998
To establish administrative provisions for the collection of charges
for classification and other services imposed by the Classification (Publications,
Films and Computer Games) Charges Bill 1997.
The Classification (Publications, Films and Computer Games) Act 1995
(the Principal Act) is part of a Commonwealth, State and Territory co-operative
legislative scheme for the classification of publications, films and computer
games and enforcement of classification decisions made under it. That
Act established the Classification Board and the Classification Review
Board on 1 January 1996 and provides the procedures for the classification
of material.
Cost Recovery of Classification Services
As a result of a Government decision in March 1995, the Office of Film
and Literature Classification (OFLC) has been required to recover the
cost of providing classification services. An incremental approach over
three years was adopted, with the first stage increases in fees coming
into effect on 1 January 1996.
In 1996, Pivotal Management Consultants, an independent accountancy
firm was engaged to conduct a review of the OFLC pricing structure and
to identify costs for each classification service. Pivotal produced a
Pricing Policy Review Report which contained 15 recommendations including:
- a scale of fees for film classification according to film duration;
- new fees for interactive films;
- differential fees for 'public exhibition' and 'sale or hire' classifications;
and
- commercial fees for pre-classification advisory services.
Consultation meetings to discuss the Report were held with the relevant
industry groups in March 1997 resulting in the recommended fees being
introduced from 1 July 1997 with fee levels being set at 75% of the 1998/99
fee level targets.(1)
On 1 November 1997 classification fees increased again and according
to the Government are now set at 100% cost recovery for the provision
of those services. These most recent increases have received criticism
from relevant industry groups and from within the Parliament. Senator
Bob Brown in a Motion of Disallowance on 19 November 1997 argued that
the new fees represent a total increase in an 18-month period of:
- 360% for film;
- 130% for video; and
- 69% for computer games.
Senator Brown and industry groups also argue that the new fees are discriminatory
and will harm the diversity of the film industry. As the Senator said,
small speciality video producers will pay the same as a large company
producing tens of thousands of videos.(2) The Australian Independent Distributors
Association has also said that the increases will harm small independent
publishers, importers and film-makers and the Association hascalled on
the Government to replace the current system with one that reflects the
number of prints distributed.(3)
Full Cost Recovery of the Office of Film and Literature Classification
In May 1997, the Government announced a new budget measure to take effect
from 1 July 1998 to recover 100% of the OFLC operating costs from users.(4)
These operations include activities ancillary to classification services
such as research, policy development, ministerial support and payments
to the States and Territories for enforcement and related purposes. The
measure will result in a significant increase in classification charges
from the current level of fees. For example, as of 1 November 1997, the
current fee for an application for classification of a film for sale or
hire ranges from $510 to $1,010 (depending on the length of the film).(5)
Under the proposed new charging arrangement to come into force on 1 July
1998, this will range from $810 to $1,590. The current fee for classification
of a computer game is $590. This will become a charge of $930.
Constitutional Implications
At present, fees for applications for classification and other services
under the Principal Act are prescribed in regulations made under that
Act.
The limitations imposed by section 55 of the Australian Constitution,
mean that these proposed charges cannot be included in the fee for the
provision of classifications services. Section 55 of the Constitution
provides:
'Laws imposing taxation shall deal only with the imposition of taxation
and any provision dealing with any other matter shall be of no effect.'
In order to implement this Budget measure, separate legislation is required
to impose as a tax, charges for applications for classification and related
services - thus the need for the Classification (Publications, Film and
Computer Games) Charges Bill.
It is to be noted that questions have also been raised about the constitutionality
of the Classification (Publications, Films and Computer Games) Regulations
1997. In the recent Disallowance Debate, it was argued that a full
year of fees set at the 1 November level will result in recouping more
than the actual cost of running theclassification system. On the criteria
of the High Court in Air Caledonie International v The Commonwealth(6),
if the fees for classification are excessive in relation to the cost of
processing, then the fees would be exactions in the nature of a tax. Under
section 55 of the Constitution, if the fees may be deemed taxes, they
render ineffective the other provisions of the Principal Act.
These Bills do not affect or change the co-operative legislative arrangements
for the classification of publications, films and computer games currently
existing between all Australian Governments.
The Classification (Publications, Films and Computer Games) Amendment
Bill proposes the removal of references to prescribed fees in the Principal
Act and their replacement with references to charges prescribed under
the Classification (Publications, Films and Computer Games) Charges Bill.
Items 1-10 of Schedule 1 simplify the procedures for applying
for classifications required for investigating or prosecuting offences.
Under State and Territory law a prosecution cannot be brought in respect
of unclassified material until the material seized is classified. According
to the Explanatory Memorandum, failure to comply with the current complicated
procedures for classification has caused difficulty for prosecuting authorities.
In order to simplify this procedure, item 8 inserts a new section
22A into the Principal Act and requires only that applications relating
to enforcement:
- be in writing;
- on a form approved by the Director;
- signed by or on behalf of the applicant;
- accompanied by a copy of the publication, film or computer game; and
- payment of the prescribed fee is required but need not accompany the
application.
Items 16, 18, 20, 22-24, 27, 29 of Schedule 1 amend the
Principal Act so that the relevant applications to the Board be accompanied
by the charges as prescribed by the Classification (Publications, Films
and Computer Games) Charges Bill rather than by the prescribed fee currently
in operation. Items 14-15 insert into the Principal Act a definition
of 'prescribed charge' and 'prescribed fee'.
The charges do not apply to the Commonwealth and its agencies or authorities.
However items 17, 19, 21, 25, 28 and 30 refer to a new section
91A which makes the Commonwealth and its agencies and authorities
notionally liable to pay the charge.
The new charges will not apply to applications by the Commonwealth,
States and Territories for use in the investigation and prosecution of
an offence. The fee applications for classification for enforcement purposes
will not exceed the cost of providing the services. Therefore these fees
will continue to be prescribed by regulations under the Principal Act.
It is to be noted that enforcement authorities in Victoria have suggested
that the current fee regime causes a dilemma for prosecution. The Age
of the 27 June 1997 reported that in 1996, Victorian police seized 6500
pornographic videos. The head of the Gaming and Vice Squad suggested that
with classification taking several months and costing up to $250 for one
video, it is impossible to get classification of every video it seized.(7)
The Attorney-General in his Second Reading Speech recognised the concerns
of independent film exhibitors in relation to the possible inequity of
these new charges. As he said, concern has been expressed about the effect
of the fee increases on the classification of material that has a limited
market appeal in Australia.(8) In response to these concerns, the Government
has agreed to set up an independent inquiry to review the charges structure
and to ensure greater equity to independent film exhibitors. The Inquiry
is due to report on 30 April 1998, ie three months before the proposed
changes come into effect.
- Classification Board & Classification Review Board. Annual report,
1996–97: 49.
- 'Classification (Publications, Films and Computer Games) Regulations
Motion for Disallowance', Senate Debates, 19 November 1997.
- 'New fees 'a threat' to films, journals', The Canberra Times,
3 November 1997.
- 1997/98 Budget summary. Daryl Williams MP. Media Release (Attorney-General
and Minister for Justice), Federal Budget 1997, 13 May 1997.
- Classification (Publications, Films and Computer Games) Regulations
SR 1997 No. 282.
- (1988) 165 CLR: 462.
- 'Vice squad in dilemma over seized porn', The Age, 27 June
1997: 4.
- Similar concerns were expressed by members of the film industry in
a Four Corners program of 6 October 1997 entitled 'Moving
numbers business' - (available from the Parliamentary Library).
Mary Anne Neilsen
4 December 1997
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to Senators and
Members of the Australian Parliament. While great care is taken to ensure
that the paper is accurate and balanced, the paper is written using information
publicly available at the time of production. The views expressed are
those of the author and should not be attributed to the Information and
Research Services (IRS). Advice on legislation or legal policy issues
contained in this paper is provided for use in parliamentary debate and
for related parliamentary purposes. This paper is not professional legal
opinion. Readers are reminded that the paper is not an official parliamentary
or Australian government document.
IRS staff are available to discuss the paper's contents with Senators
and Members
and their staff but not with members of the public.
ISSN 1328-8091
© Commonwealth of Australia 1997
Except to the extent of the uses permitted under the Copyright Act
1968, no part of this publication may be reproduced or transmitted
in any form or by any means, including information storage and retrieval
systems, without the prior written consent of the Parliamentary Library,
other than by Members of the Australian Parliament in the course of their
official duties.
Published by the Department of the Parliamentary Library, 1997
|
