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South Australian
Classification (Publications, Films and Computer Games) (On-line Services) Amendment Bill 2002

The 2002 version of the Bill includes two minor amendments to the previous version introduced into SA Parliament in November 2000. The amendments were recommended by a SA Parliamentary Committee and are shown in the text of the Bill below: text crossed out denotes deletions and text in red denotes replacements/additions.

A border around text below signifies a definition from another Act, referred to in the SA Bill, and inserted below for ease of reference (such text does not appear in the SA Bill).


South Australian
Classification (Publications, Films and Computer Games) (On-line Services) Amendment Bill 2002

Short title
1.   (1) This Act may be cited as the Classification (Publications, Films and Computer Games) (On-Line Services) Amendment Act 2002.

     (2) The Classification (Publications, Films and Computer Games) Act 1995 is referred to in this Act as "the principal Act".

Commencement
2. This Act will come into operation on a day to be fixed by proclamation.

Insertion of Part
3. The following Part is inserted after Part 7 of the principal Act:

PART 7A
ON-LINE SERVICES

Interpretation

75A. In this Part-

"access" has the same meaning as it has in the Commonwealth Broadcasting Act.

Commonwealth Broadcasting Act states:
access includes:
(a) access that is subject to a pre-condition (for example, the use of a password); and
(b) access by way of push technology; and
(c) access by way of a standing request.

"Internet content" has the same meaning as in the Commonwealth Broadcasting Act.

Commonwealth Broadcasting Act states:
Internet content means information that:
(a) is kept on a data storage device; and
(b) is accessed, or available for access, using an Internet carriage service;
but does not include:
(c) ordinary electronic mail; or
(d) information that is transmitted in the form of a broadcasting service.

"matter unsuitable for minors" means Internet content consisting of 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 comprising moving images;

Commonwealth Act, to which SA Act refers, states:
film includes a cinematograph film, a slide, video tape and video disc and any other form of recording from which a visual image, including a computer generated image, can be produced, but does not include:
(a) a computer game; or
(b) an advertisement for a publication, a film or a computer game; or
(c) a recording for business, accounting, professional, scientific or educational purposes unless it contains a visual image that would be likely to cause the recording to be classified MA, R, X or RC.

"objectionable matter" means Internet content consisting of:

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

(b) a film or computer game that is classified RC or that would, if classified, be classified RC; or

Commonwealth Act , to which SA Act refers, states:
computer game means a computer program and associated data capable of generating a display on a computer monitor, television screen, liquid crystal display or similar medium that allows the playing of an interactive game, but does not include:
(a) an advertisement for a publication, a film or a computer game; or
(b) business, accounting, professional, scientific or educational computer software unless the software contains a computer game that would be likely to be classified MA (15+) or RC.

(c) an advertisement for a film or computer game referred to in paragraph (a) or (b); or

Commonwealth Act, to which SA Act refers, states:
advertisement for a publication, a film or a computer game means any form of advertising for the publication, film or game, and includes:
(a) advertising, whether visual or audible, whether in the form of written or spoken words or other sounds and whether in a book, paper, magazine, poster, photograph, sketch, program, film or slide or in any other form; and
(b) advertising on a container or wrapping enclosing the publication, film or game; and
(c) advertising on an item of clothing advertising the publication, film or game.

(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 Commonwealth Broadcasting Act and includes a bulletin board.

Commonwealth Broadcasting Act states:
Internet carriage service means a listed carriage service that enables end-users to access the Internet.

listed carriage service has the same meaning as in the Telecommunications Act 1997.

Application of Part

75B. (1) This Part applies to an on-line service other than an on-line service, or an on-line service of a class, prescribed by regulation.

(2) Nothing in this Part makes it an offence to make available or supply objectionable matter or matter unsuitable for minors by means of an on-line service to a person, or class of persons, prescribed by regulation.

(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.

Making available or supplying objectionable matter on on-line service

75C. 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: $10,000

Making available or supplying matter unsuitable for minors on on-line service

75D.(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: $10,000

(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.

(2) It is a defence to a prosecution for an offence against this section to prove that-

(a) an approved restricted access system operated, at the time of the offence, in relation to access by means of the on-line service to the matter unsuitable for minors; or

(b) the defendant intended, and had taken reasonable steps to ensure, that such a system would so operate and any failure of the system to so operate did not result from any act or omission of the defendant.

(3) In this section:

"approved restricted access system" means:

(a) a restricted access system within the meaning of the Commonwealth Broadcasting Act; 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.

(4) A notice declaring a system of limiting access to be an approved restricted access system may be varied or revoked by the Minister by subsequent notice pubished in the Gazette.

Recklessness

75E. (1) A person is reckless as to whether matter is objectionable matter or matter unsuitable for minors if-

(a) the person is aware of a substantial risk that the matter is objectionable matter or matter unsuitable for minors, and

(b) 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.

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