DRAFT ENFORCEMENT PROVISIONS
This draft is in the form of a Part suitable for inclusion in the Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW). If this Part is inserted into that Act many words and phrases used in this Part will have the same meaning as in the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth. See, in particular the definition in that Act of "advertisement". A note at the end of this draft describes the matter that may be classified RC.
Part [ ] On-line Services
1 Definitions
In this Part:
access has the same meaning as it has in the Broadcasting Services Act 1992 of the Commonwealth.
matter unsuitable for minors means a film that is classified R, or that would, if classified, be classified R, or an advertisement for any such film consisting of or containing an extract or sample from the film.
objectionable matter means:
(a) a film that is classified X, or that would, if classified, be classified X,
(b) a film or computer game that is classified RC or that would, if classified, be classified RC,
(c) an advertisement for a film or computer game referred to in paragraph (a) or (b), or
(d) an advertisement that has been, or would be, refused approval under section 29(4) of the Commonwealth Act.
on-line service means an Internet carriage service within the meaning of the Broadcasting Services Act 1992 of the Commonwealth and includes a bulletin board.
responsible Minister means the Minister [Note: ie the State Minister administering the Act into which the proposed Part is inserted] and any Minister of another jurisdiction in which a law corresponding to this Part is in force.
2 Application of Part
(1) This Part Applies to an on-line service other than an on-line service, or on-line service of a class, prescribed by the regulations.
(2) Nothing in this Part makes it an offence to supply objectionable matter or matter unsuitable for minors by means of an on-line service:
(a) to any person in the form of ordinary electronic mail (within the meaning of the Broadcasting Services Act 1992 of the Commonwealth),
(b) to subscribers of, or participants in, a chat or discussion group, or
(c) to any other person, or class of persons, prescribed by the regulations.
(3) A person is not guilty of an offence under this Part by reason only of the person:
(a) owning, or having the control and management of the operation of, an on-line service, or
(b) facilitating access to or from an on-line service by means of transmission, down loading, intermediate storage, access software or similar capabilities.
3 Making available or supplying objectionable matter on on-line service
A person must not, by means of an on-line service, make available, or supply, to another person, objectionable matter:
(a) knowing that it is objectionable matter, or
(b) being reckless as to whether or not it is objectionable matter.
Maximum penalty: [Each jurisdiction to insert appropriate amount for offences by individuals and corporations, respectively].
4 Making available or supplying matter unsuitable for minors on on-line service
(1) A person must not, by means of an on-line service, make available, or supply, to another person, any matter unsuitable for minors:
(a) knowing that it is matter unsuitable for minors, or
(b) being reckless as to whether or not it is matter unsuitable for minors.
Maximum penalty: [Each jurisdiction to insert appropriate amount for offences by individuals and corporations, respectively].
(2) It is a defence to a prosecution under this section for the defendant to prove that access to the matter unsuitable for minors was subject to an approved restricted access system at the time the matter was made available or supplied by the defendant.
(3) In this section:
approved restricted access system means:
(a) any restricted access system within the meaning of the Broadcasting Services Act 1992 of the Commonwealth, or
(b) any other system of limiting access declared by the Minister, by notice published in the Gazette, to be an approved restricted access system for the purposes of this definition.
5 Recklessness
(1) A person is reckless as to whether matter is objectionable matter or matter unsuitable for minors:
(a) if the person is aware of a substantial risk that the matter is objectionable matter or matter unsuitable of minors, and
(b) that having regard to the circumstances known to the person, it is unjustifiable to take the risk.
(2) The question of whether taking a risk is unjustifiable is one of fact.
Note. The National Classification Code set out in the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth ("the Code") provides for films and computer games to be classified RC that:
(a) depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified,
(b) depict in a way that is likely to cause offence to a reasonable adult, a person who is, or who looks like, a child under 16 (whether the person is engaged in sexual activity or not), or
(c) promote, incite or instruct in matters of crime or violence.
Computer games that are unsuitable for a minor to see or play may also be classified RC.
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