DISCUSSION DRAFT ONLY

This draft has been prepared by the NSW Parliamentary Counsel's Office at the request of Censorship Officers. It takes into account the provisions included in the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic) and the Censorship Bill 1995 (WA) and model provisions prepared for discussion by the Parliamentary Counsel's Committee (PCC). The draft is in the form of a Part suitable for inclusion in the Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) and may be a suitable model for adoption by other jurisdictions. While it has been circulated to the PCC and some members of that Committee have commented on it, it has not been settled by that Committee.

Part [] On-line services

1 Object of Part

The object of this Part is to establish a framework to encourage self-regulation by users and providers of on-line services (such as bulletin boards and services providing information through systems connected to the internet):

(a) by creating offences concerning transmission, permitting access to and retrieval of and advertising through on-line services of objectionable material and material that is unsuitable for minors, and

(b) by promoting development of industry codes of practice in consultation with on-line service users and providers to provide guidelines relating to transmission of, permitting access to and retrieval of, and advertising of such material.

2 Definitions

In this Part:

Commonwealth Act means the Classification (Publications, Films and Computer Games) Act 1995.

industry code of practice is defined in section 5.

material unsuitable for minors of any age means:

(a) a film that is classified X or R, or that would, if classified, be classified X or R, or

(b) a publication that is classified Category 1 restricted or Category 2 restricted, or that would, if classified, be classified Category 1 restricted or Category 2 restricted.

Note. The National Classification Code set out in the Commonwealth Act provides for publications (except RC publications) to be classified Category 2 restricted that:

(a) explicitly depict sexual or sexually related activity between consenting adults in a way that is likely to cause offence to a reasonable adult, or

(b) depict, describe or express revolting or abhorrent phenomena in a way that is likely to cause offence to a reasonable adult and are unsuitable for a minor to see or read.

The Code provides for publications (except RC publications and Category 2 restricted publications) to be classified Category 1 restricted that:

(a) explicitly depict nudity, or describe or impliedly depict sexual or sexually related activity between consenting adults, in a way that is likely to cause offence to a reasonable adult, or

(b) describe or express in detail violence or sexual activity between consenting adults in a way that is likely to cause offence to a reasonable adult, or

(c) are unsuitable for a minor to see or read.

material unsuitable for minors under 15 means:

(a) a film that is classified MA or that would, if classified, be classified MA, or

(b) a computer game that is classified MA (15+) or that would, if classified, be classified MA (15+).

Note. The National Classification Code set out in the Commonwealth Act provides for films to be classified MA (15+) that depict, express or otherwise deal with sex, violence or coarse language in such a manner as to be unsuitable for viewing by persons under 15. It provides for computer games to be classified MA (15+) that cannot be recommended for viewing or playing by persons who are under 15.

objectionable material means any film, computer game or publication that is classified RC or that would, if classified, be classified RC [Note: some jurisdictions will need to add references to material classified X to this definition].

Note. The National Classifications Code set out in the Schedule to the Commonwealth Act provides for films, publications 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, or

(b) depict in a way that is likely to cause offence to a reasonable adult, a minor who is, or who appears to be, under 16 (whether the minor is engaged in sexual activity or not), or

(c) promote, incite or instruct in matters of crime or violence.

Publications that describe the matters referred to in paragraphs (a) or (b) may also be classified RC, as may computer games that are unsuitable for a minor to see or play.

on-line service means a service provided by or through the facilities of a computer communications system and accessed through the public telecommunications network that allows for:

(a) the input, output or examination of computer data or computer programs, or

(b) the transmission of computer data or computer programs from one computer to another, or

(c) the transmission of computer data or computer programs from a computer to a terminal service.

on-line service provider means a person who owns, or who has the control and management of the operation of, an on-line service.

participating Minister has the same meaning as in the Commonwealth Act

transmit means send or receive by means of an on-line service.

3 Consent of parent or guardian

Consent may, for the purposes of this Part, be given by a parent or guardian generally, for classes of cases or for specific cases.

4 Reasonable steps

Without limiting the matters that a court may take into account in determining whether an on-line service provider has taken reasonable steps to avoid a contravention of a provision of this Part, it may take into account any one or more of the following:

(a) any undertakings that the on-line service provider has obtained from users of the on-line service as to material that will not be transmitted or transmitted inappropriately on the on-line service, or

(b) procedures (such as random checks of material available through the on-line service) conducted by the on-line service provider to monitor material being transmitted or that may be accessed on the on-line system, or

(c) procedures established by the on-line service provider to require an authorised access or identification code before transmission and to verify the age of persons requesting issue of the code, or

(d) the response of the on-line service provider in deleting material that users of the on-line service have complained is objectionable material or material unsuitable for minors of any age.

5 Industry codes of practice

(1) For the purpose of providing practical guidance to users of on-line services or on-line service providers, or both, the participating Ministers may approve codes of practice, setting out guidelines for users of on-line services or on-line service providers, as industry codes of practice.

(2) A code of practice approved by the participating Ministers may:

(a) consist of any code, standard, rule, specification or provision relating to on-line services, or

(b) apply or incorporate (with or without modification) or refer to any document formulated of published by persons or bodies that the participating Ministers consider have an appropriate interest in the content of industry codes of practice.

(3) Such a code of practice may:

(a) relate to all on-line services or a particular kind of on-line service (such as a bulletin board or services providing information through systems connected to the internet), and

(b) may be amended from time to time.

(4) The Minister [Note: ie the State Minister administering the Act into which the proposed Part is inserted] must:

(a) cause a copy of every code of practice approved by the participating Ministers to be published in the Gazette, and

(b) cause a copy of any amendment to the code of practice to be published in the Gazette.

(5) An industry code of practice, and any amendment to the code of practice, comes into force on the day on which it is published in the Gazette, or on such later day as is specified in the industry code of practice or the amending instrument.

(6) An industry code of practice ceases to be in force on a day notified in the Gazette by the Minister.

(7) A person is not liable to any civil or criminal proceedings by reason only that a person has failed to observe any provision of an industry code of practice.

6 Transmission or advertising on on-line service of objectionable material

(1) A person must not:

(a) transmit objectionable material on an on-line service, or

(b) use an on-line service to advertise that objectionable material is available for transmission.

Maximum penalty: [Note: [?] penalty units for an individual, [?] penalty units for a corporation. To be advised]

(2) It is a defence to a prosecution for an offence under this section to prove that the defendant (or the defendant's employee or agent) believed on reasonable grounds that the material was not objectionable material.

7 Making objectionable material available for access or retrieval on on-line service

(1) An on-line service provider must not permit objectionable material to be available for access or retrieval by users of the service.

Maximum penalty: [Note: [?] penalty units for an individual, [?] penalty units for a corporation. To be advised]

(2) It is a defense to a prosecution for an offence under this section to prove that the defendant (or the defendant's employee or agent):

(a) complied with an applicable industry code of practice, or

(b) took reasonable steps in the circumstances to avoid permitting objectionable material to be available for access or retrieval by users of the service, or

(c) believed on reasonable grounds that the material was not objectionable material.

8 Transmission or advertising on on-line service of certain material unsuitable for minors of any age

(1) A person must not:

(a) transmit material unsuitable for minors of any age to a minor on an on-line service, or

(b) use an on-line service to advertise to a minor that material unsuitable for minors of any age is available for transmission.

Maximum penalty: [Note: [?] penalty units for an individual, [?] penalty units for a corporation. To be advised]

(2) It is a defense to a prosecution for an offence under this section to prove that the defendant (or the defendant's employee or agent):

(a) complied with an applicable industry code of practice, or

(b) took reasonable steps in the circumstances to avoid transmitting, or advertising the availability, of the material to minors, or

(c) believed on reasonable grounds that the material was not material unsuitable for minors of any age, or

(d) believed on reasonable grounds that the recipient of the material was an adult.

9 Transmission or advertising on on-line service of certain material unsuitable for minors under 15

(1) A person must not:

(a) transmit material unsuitable for minors under 15 to a minor under 15 on an on-line service, or

(b) use an on-line service to advertise to a minor under 15 that material unsuitable for minors under 15 is available for transmission.

without the consent of a parent or guardian of the minor.

Maximum penalty: [Note: [?] penalty units for an individual, [?] penalty units for a corporation. To be advised]

(2) It is a defense to a prosecution for an offence under this section to prove that the defendant (or the defendant's employee or agent):

(a) complied with an applicable industry code of practice, or

(b) took reasonable steps in the circumstances to avoid transmitting, or advertising the availability, of the material to minors, or

(c) believed on reasonable grounds that the material was not material unsuitable for minors under 15, or

(d) believed on reasonable grounds that the recipient of the material was 15 or older, or

(e) believed on reasonable grounds that a parent or guardian of the minor had given consent to the transmission, or advertising of the availability of the material for transmission, to the minor.

10 Making material unsuitable for minors of any age available for access or retrieval by those minors

(1) An on-line service provider must not permit material unsuitable for minors of any age to be available for access or retrieval by a minor using the service.

Maximum penalty: [Note: [?] penalty units for an individual, [?] penalty units for a corporation. To be advised]

(2) It is a defense to a prosecution for an offence under this section to prove that the defendant (or the defendant's employee or agent):

(a) complied with an applicable industry code of practice, or

(b) took reasonable steps in the circumstances to avoid permitting access or retrieval of such material by minors, or

(c) believed on reasonable grounds that the material was not material unsuitable for minors of any age, or

(d) believed on reasonable grounds that the users of the service would be adults, or

(e) believed on reasonable grounds that the minor who accessed or retrieved the material was an adult.

11 Making material unsuitable for minors under 15 available for access or retrieval by those minors

(1) An on-line service provider must not permit material unsuitable for minors under 15 to be available for access or retrieval by a minor under 15 using the service without the consent of a parent or guardian of the minor.

Maximum penalty: [Note: [?] penalty units for an individual, [?] penalty units for a corporation. To be advised]

(2) It is a defense to a prosecution for an offence under this section to prove that the defendant (or the defendant's employee or agent):

(a) complied with an applicable industry code of practice, or

(b) took reasonable steps in the circumstances to avoid permitting access or retrieval of such material by minors under 15, or

(c) believed on reasonable grounds that the material was not material unsuitable for minors under 15, or

(d) believed on reasonable grounds that the users of the service would be minors who were 15 or older, or

(e) believed on reasonable grounds that the person who accessed or retrieved the material was 15 or older, or

(f) believed on reasonable grounds that a parent or guardian of the minor had given consent to the service provider permitting the material to be available for access or retrieval by the minor.

Proceedings for offences

[Note: each jurisdiction should ensure that appropriate provisions are included in the Act in which the Part is to be inserted.]

Section 57 of the NSW Act provides:

Summary of proceedings

(1) Proceedings for an offence under this Act may be dealt with summarily: (a) before a Local Court constituted by a Magistrate sitting alone, or (b) before the Supreme Court in its summary jurisdiction.
(2) If proceedings are brought in a Local Court, the maximum penalty that the Local Court may impose for the offence is, despite any other provision of the Act, 100 penalty units or imprisonment for 2 years of the maximum penalty provided by this Act in respect of the offence (whichever is less).

Section 59 of the NSW Act provides:
Commencement of proceedings

(1) Proceedings for an offence under this Act in relation to a film, publication or computer game that is unclassified at the time of the alleged offence:
(a) are not to be commenced until the film, publication or computer game has been classified, and
(b) are not to be commenced later than 12 months after the date on which the film, publication or computer game was classified.
(2) Proceedings for an offence under this Act in relation to a film, publication or computer game that is classified at the time of the alleged offence are not to be commenced later than 12 months after the date of the alleged offence.