CHAPTER 1
INTRODUCTION
Referral of inquiry
1.1
On 3 November 2011, the Senate referred the provisions of the Classification
(Publications, Films and Computer Games) Amendment (Online Games) Bill 2011
(Bill) to the Senate Legal and Constitutional Affairs Legislation Committee
(committee) for inquiry and report by 14 March 2012.[1]
Purpose of the Bill
1.2
Mobile device and online games are regulated as computer games under the
National Classification Scheme, a cooperative scheme between the Commonwealth, and
the states and territories. Decisions on the classification of publications,
films and computer games are made pursuant to the processes set out in the Classification
(Publications, Films and Computer Games) Act 1995 (Cth) (Classification
Act), and the sale, demonstration and advertising of this material is regulated
by state and territory laws.[2]
1.3
The Explanatory Memorandum (EM) to the Bill notes that consumers now
have access to an increasing number and range of computer games on a variety of
platforms including on mobile devices and other network services. The National
Classification Scheme, however, was not designed to cater for the
classification of these types of computer games.[3]
1.4
In his Second Reading Speech, the former Minister for Justice (Minister),
the Hon Brendan O'Connor MP, outlined the practical challenges in relation to
the classification of computer games played online and on mobile devices:
At present the significant majority of mobile device and
online computer games are not classified prior to being made available to
consumers. This is in breach of a range of relevant state and territory laws
concerning the sale, demonstration and advertising of computer games.
If the present legal requirements were enforced, the
Classification Board in its present form would be unable to sustain the
administrative burden that would be imposed. It would also result in
significant compliance costs for industry and may threaten the existence of
smaller operators.[4]
1.5
The Minister stated that '[i]ndustry has expressed concern over this
regulatory uncertainty and expressed the need for government to clarify the
present legal requirements for the classification of mobile device and online
games'.[5]
1.6
The EM explains that the purpose of the Bill is to 'address uncertainty
about the classification laws for mobile phone and online games'.[6]
The Bill aims to achieve this by inserting a new category of 'exempt online
games' into the Classification Act, which would remove the requirement for
classification of mobile device and online games.[7]
1.7
In introducing the Bill, the Minister noted the Australian Law Reform
Commission's (ALRC) ongoing review of the National Classification Scheme. As
part of that review, the ALRC is considering the best way to classify computer
games. The Bill is intended to operate as an interim measure because any
solution on the classification of computer games arising from the ALRC's review
is 'still some time away'.[8]
The ALRC is due to deliver its final report to the Attorney-General on
28 February 2012.[9]
Provisions of the Bill
Exempt online games
1.8
The main amendments proposed in the Bill reflect the purpose of the
legislation to exempt from classification games which are only available online
and on mobile devices. The Bill does this by inserting a proposed new section
5C into the Classification Act, which would define 'exempt online games' (item
6 of Schedule 1), and by amending the current definition of 'exempt computer
games' in subsection 5B(2) of the Classification Act (item 4 of Schedule 1).[10]
1.9
Proposed new subsection 5C(1) sets out two categories of computer
games[11]
which are exempt online games:
-
a computer game that is only available by means of a content
service (within the meaning of Schedule 7 of the Broadcasting Services
Act 1992 (Broadcasting Services Act)),[12]
and can only be played on a mobile device[13]
onto which it has been installed (proposed new paragraph 5C(1)(a)); and
-
a computer game that is only available by means of a content
service (within the meaning of Schedule 7 of the Broadcasting Services Act),
and can only be played while the player is using an internet carriage service
(within the meaning of Schedule 5 of the Broadcasting Services Act)[14]
(proposed new paragraph 5C(1)(b)).
1.10
Proposed new subsection 5C(2) provides that a computer game is not
an exempt online game if it contains:
-
an advertisement that has been refused approval; or
-
an advertisement for a film, or for a computer game, that has
been classified Refused Classification (RC)[15]
or that, if classified, would be likely to be classified RC; or
-
material that would be likely to cause the computer game to be
classified RC.
1.11
A computer game that is classified is not an exempt online game
(proposed new subsection 5C(3)).
Exempt computer games
1.12
Currently, a computer game is an 'exempt computer game' if it 'forms
part of, or is included in computer software' for business, accounting,
professional, scientific, or educational purposes (subsection 5B(2) of the
Classification Act). Item 4 of Schedule 1 repeals the current
definition of 'exempt computer game' and inserts a new definition of this term.
The new definition of 'exempt computer game' includes the types of 'exempt
computer games' under current subsection 5B(2) and exempt online games.
1.13
Subsection 5B(3) of the Classification Act sets out exceptions to
the definition of 'exempt computer game'.[16]
For example, a computer game is not an exempt computer game if it contains an
advertisement that has been refused approval.[17]
Item 5 of Schedule 1 amends subsection 5B(3) to clarify that the
exceptions apply to the five types of computer games in the current subsection
5B(2) (proposed new paragraph 5B(2)(a)), and not to an 'exempt online
game'.
Certificates for exempt online
games
1.14
Division 6 of Part 2 of the Classification Act sets out the process of
application for, and grant of, certificates for unclassified films or computer
games as exempt films or computer games. In applying for a certificate,
applications must include, among other things, particulars of any material that
could cause the film or game to be classified 'M' or a higher classification.[18]
1.15
Proposed new subsection 5C(4) applies Division 6 of Part 2 of the
Classification Act to applications for, and grants of, certificates for
computer games as exempt online games, as if the references to the 'M or a higher
classification' are instead references to RC.
Sunset provision
1.16
Proposed new subsection 5C(5) puts in place a two-year sunset
clause for the exemption from classification for online games. The subsection
provides that, at the end of the period of two years starting on the
commencement of section 5C, a computer game is not an exempt online game.
Further, proposed subsection 5C(5) provides that any certificate granted
under Division 6 Part 2 of the Classification Act for a computer game being an
online exempt game will also cease to have effect at the end of the two-year
period following commencement of the section.
Conduct of the inquiry
1.17
The committee advertised the inquiry in The Australian on
9 and 23 November, and 7 December 2011. Details of the
inquiry, including links to the Bill and associated documents, were placed on
the committee's website. The committee also wrote to a number of organisations
and individuals, inviting submissions by 13 January 2012. Submissions
continued to be accepted after this date.
1.18
The committee received six submissions, which are listed at Appendix 1.
All submissions were published on the committee's website. The committee did
not hold a public hearing for this inquiry.
Acknowledgement
1.19
The committee thanks those organisations and individuals who made
submissions.
Note on references
1.20
References in this report are to individual submissions as received by
the committee, not to a bound volume.
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