Enforcement under the classification cooperative scheme

16.6 Under the classification cooperative scheme, state and territory enforcement legislation prohibits the sale, distribution and advertising of unclassified material; and restricts the sale, distribution and advertising of classified material in various ways.

16.7 State and territory enforcement legislation also provides that the Director of the Classification Board may require ‘submittable publications’, films or computer games to be submitted for classification.[1] Failure to comply with a notice ‘calling in’ a publication, film or computer game (a call in notice) is an offence under state and territory laws.

State and territory offences

16.8 State and territory enforcement legislation provides for a range of offences, which vary markedly between jurisdictions. The main types of offence concern:

  • selling, screening, distributing or advertising unclassified material;
  • failing to comply with restrictions on the sale, distribution and advertising of classified material; and
  • failing to comply with call in notices.

Offences in relation to unclassified material

16.9 State and territory enforcement legislation provides for offences in relation to selling, screening, distributing or advertising unclassified material. For example, in NSW, it is an offence to:

  • sell or publicly exhibit an unclassified film;
  • sell or deliver a submittable publication; or
  • sell or publicly demonstrate an unclassified computer game.[2]

16.10 Similar offences apply in all other state and territory jurisdictions, with minor variations in formulation.[3]

Offences in relation to classified material

16.11 State and territory enforcement legislation provides for offences in relation to selling, screening, distributing or advertising certain categories of classified material (or material that, if classified, would be classified as being in a certain category). Offences vary significantly in relation to:

  • the kinds of classified material that can be sold, screened, distributed, advertised or possessed; and
  • how classified material can be sold, screened, distributed or advertised.

16.12 These differences can be illustrated by reference to X 18+ films. While the sale or public exhibition of X 18+ films is prohibited in all states, the ACT and the Northern Territory permit it,[4] subject to various restrictions. Similarly, while Queensland prohibits the selling, distributing or advertising of Category 1 Restricted and Category 2 Restricted publications,[5] these publications may be sold in all other states and territories.

16.13 State and territory enforcement legislation contains provisions regulating how classified material can be sold, distributed or advertised. These provisions vary, particularly in relation to where certain material may be sold and how it may be displayed. For example, in 2009, South Australia enacted new laws restricting the display and promotion of R 18+ films. These impose requirements to display material for an R 18+ film in a different area of business premises from material for other films and with a prescribed notice warning that the material may cause offence.[6] These requirements are unique to South Australia.

16.14 Penalties for similar offences also differ between jurisdictions. For example, the maximum penalty for failing to comply with a call-in notice is as follows:

  • Queensland $2,000;
  • Victoria $11,945; and
  • NSW $11,000 for an individual (and $22,000 for a corporation).[7]

Offences in relation to call in notices

16.15 All states and territories have similar offence provisions relating to failure to comply with call in notices issued by the Director of the Classification Board. For example, the Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) provides that the Director may call in for classification:

  • publications that are submittable publications;[8]
  • unclassified films that are not exempt films; and
  • computer games that contain contentious material, and unclassified games that are not exempt.[9]

State and territory law enforcement agencies

16.16 In most jurisdictions, state and territory police are responsible for enforcing classification laws.[10] In the ACT, classification laws are enforced by ACT Policing and by the ACT Office of Regulatory Services.[11]

16.17 In Queensland, the Department of Employment, Economic Development and Innovation enforces classification laws using Office of Fair Trading inspectors. Police do not investigate or prosecute alleged classification offences, unless the complaint involves suspected child exploitation.[12]

The Classification Liaison Service

16.18 The Australian Government provides some assistance in relation to enforcement, through the operation of the Classification Liaison Scheme (CLS). The Attorney-General’s Department operates the CLS—a joint Australian Government, state and territory initiative.

16.19 The primary functions of the CLS are to educate industry about legal obligations under the National Classification Scheme and to verify compliance with classification laws. In this context, CLS officers visit premises throughout Australia checking whether classifiable material complies with classification laws and refer possible breaches of the law to police and other law enforcement agencies.[13]

Customs and Border Protection Service

16.20 As discussed in Chapter 13, the Australian Customs and Border Protection Service (Customs) identifies and confiscates ‘objectionable material’ at the Australian border. The definitions of ‘objectionable material’ in the Customs (Prohibited Imports) Regulations 1956 (Cth) and Customs (Prohibited Exports) Regulations 1958 (Cth) substantially mirror the definition of material classified RC under the Classification Act and National Classification Code.

[1] Except in the ACT, where the offence is contained in the Commonwealth Act: Classification (Publications, Films and Computer Games) Act 1995 (Cth) ss 23(3), 23A(3), 24(3).

[2]Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) ss 6, 19, 27.

[3] See, eg, Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic) ss 6, 15, 25, 34.

[4]Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (ACT) ss 9, 22; Classification of Publications, Films and Computer Games Act 1985 (NT) s 49. However, the Commonwealth Act prohibits the possession or control of Category 1 Restricted and Category 2 Restricted publications, X 18+ films, and RC material by persons in prescribed areas of the Northern Territory: Classification (Publications, Films and Computer Games) Act 1995 (Cth) ss 101–102.

[5]Classification of Publications Act 1991 (Qld) s 12.

[6]Classification (Publications, Films and Computer Games) Act 1995 (SA) s 40A, inserted by Classification (Publications, Films and Computer Games) (R 18+ Films) Amendment Act 2009 (SA).

[7]Classification of Films Act 1991 (Qld) s 25CA(3); Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic) ss 60(3), 60A(3), 61(3); Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) ss 46(2), 46A(2), 47(2).

[8] See Classification (Publications, Films and Computer Games) Act 1995 (Cth) s 5 definition of ‘submittable publication’.

[9]Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) ss 46, 46A, 47.

[10] Australian Government Attorney-General’s Department, Submission to Senate Legal and Constitutional Affairs References Committee Inquiry into the Australian Film and Literature Classification Scheme, 4 March 2011.

[11] Ibid.

[12] See, Explanatory Notes State Penalties Enforcement and Other Legislation Amendment Bill 2009 (Qld).

[13] Australian Government Attorney-General’s Department, Submission to Senate Legal and Constitutional Affairs References Committee Inquiry into the Australian Film and Literature Classification Scheme, 4 March 2011.