Classification (Publications, Films and Computer Games) Enforcement Act 1995

Classification (Publications, Films and Computer Games) Enforcement Act 1995

An Act to provide for the classification of publications and the enforcement of those classifications and for the enforcement of a national scheme of classification of films and computer games and for related matters

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Classification (Publications, Films and Computer Games) Enforcement Act 1995 .

2.   Commencement

This Act commences on a day to be proclaimed.

3.   Interpretation

In this Act, unless the contrary intention appears –

acceptable proof of age, in relation to a person, means documentary evidence that might reasonably be accepted as applying to the person as showing that the person is an adult;

adult means a person who is 18 or older;

advertisement in relation to a publication, film or 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, 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;

approved advertisement means an advertisement approved under section 29 of the Commonwealth Act ;

approved form means a form approved by the Director and published in the Commonwealth Gazette;

bestiality means sexual activity of any kind between a human being and an animal;

business day means a day other than –

(a) a Saturday or Sunday; or

(b) a bank holiday under the Bank Holidays Act 1919 ;

buy means buy or exchange or hire and includes offer to buy or exchange or hire, agree to buy, exchange or hire and cause or permit to be bought or exchanged or hired, whether by retail or wholesale;

category 1 restricted publication means a publication classified as a category 1 restricted publication by the Tasmanian Board under this Act;

category 2 restricted publication means a publication classified as a category 2 restricted publication by the Tasmanian Board under this Act;

Chairperson means Chairperson of the Tasmanian Board;

child means a minor under 16;

child abuse publication means a publication that describes or depicts a person (whether engaged in sexual activity or otherwise) who is, or who looks like, a child in a manner that is likely to cause offence to a reasonable adult;

classification certificate means a certificate issued under section 24 of the Commonwealth Act ;

Classification Guidelines means the guidelines referred to in section 12 of the Commonwealth Act ;

classified means –

(a) in relation to a publication – classified by the Tasmanian Board under this Act; or

(b) in relation to a film or computer game – classified under the Commonwealth Act, including reclassified under that Act;

Code means the National Classification Code set out in the Schedule to the Commonwealth Act or as amended in accordance with section 6 of the Commonwealth Act ;

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

Commonwealth Board means the Classification Board established under section 45 of the Commonwealth Act ;

Commonwealth Gazette means the Commonwealth of Australia Gazette;

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, film or 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;

computer generated image means an image, including an image in the form of text, produced by use of a computer on a computer monitor, television screen, liquid crystal display or similar medium from electronically recorded data;

consumer advice means consumer advice given under section 20 of the Commonwealth Act ;

contentious material, in relation to a computer game, means material in the computer game that a reasonable adult would consider unsuitable for viewing or playing by a minor under 15;

demonstrate includes exhibit, display, screen, play or make available for playing;

Deputy Chairperson means Deputy Chairperson of the Tasmanian Board;

Deputy Director means Deputy Director of the Commonwealth Board;

determined markings means markings determined under section 8 of the Commonwealth Act ;

Director means Director of the Commonwealth Board;

exhibit –

(a) in relation to a film, means project or screen; and

(b) in relation to a publication, includes display;

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, 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;

guardian means an adult who is exercising parental control over a minor under 15;

interactive game means a game in which the way the game proceeds and the result achieved at various stages of the game is determined in response to the decisions, inputs and direct involvement of the player;

member means member of the Tasmanian Board, and includes the Chairperson and Deputy Chairperson;

minor means a person under 18 who is not married;

notice means notice in writing;

objectionable publication means a publication that –

(a) describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in a manner that is likely to cause offence to a reasonable adult; or

(b) is a child abuse publication; or

(c) describes, depicts, expresses or otherwise deals with an act of bestiality; or

(d) promotes, incites or encourages terrorism;

parent includes guardian;

place includes premises or vacant land;

police officer has the same meaning as in the Police Regulation Act 1898 ;

premises includes vehicle, vessel and aircraft;

privately means not in a public place;

prohibited publication means a publication classified as a prohibited publication by the Tasmanian Board;

public place means any place which the public is entitled to use, or which is open to or used by the public, whether on payment of money or otherwise;

publication means any written or pictorial matter, but does not include –

(a) a film; or

(b) a computer game; or

(c) an advertisement for a film or computer game;

publish includes sell, exhibit, display, distribute and demonstrate;

Registrar means Registrar of the Tasmanian Board;

relevant consumer advice means advice determined under section 20 of the Commonwealth Act ;

reproduce, in relation to a publication, means to reproduce that publication by means of printing, photographing or recording or by any other means;

responsible person means, in respect of a business carried on, in or on any premises, each of the following:

(a) the person carrying on the business;

(b) any person apparently having the management or charge of the business either generally or so far as it is carried on in or on those premises;

sell means sell, whether by wholesale or retail, and includes the following:

(a) offer or expose for sale;

(b) keep or have in possession for sale or to let on hire;

(c) barter or exchange;

(d) let on hire or offer to let on hire;

(e) deal in or agree to sell;

(f) send, forward or deliver for, or in consideration of receiving, any payment or other consideration;

(g) receive for sale or on sale;

submittable publication means an unclassified publication that contains depictions or descriptions of sexual matters, drugs, nudity or violence that are likely to cause offence to a reasonable adult to the extent that the publication should not be sold as an unrestricted publication;

Tasmanian Board means the Publications Classification Board continued in existence under section 5 ;

terrorism has the meaning assigned to that expression by the Australian Security Intelligence Organization Act 1979 of the Commonwealth;

vehicle has the meaning assigned to that expression by the Traffic Act 1925 .

4.   When is a person taken to have exhibited a film in a public place?

For the purposes of this Act, a person is taken to have exhibited a film in a public place if the person –

(a) arranged or conducted the exhibition of the film in the public place; or

(b) had the superintendence or management of the public place in which the film was exhibited.

PART 2 - Publications

Division 1 - Administration

5.   Continuation of Tasmanian Board

(1)  The Publications Classification Board established under section 6 of the Classification of Publications Act 1984 continues and is referred to in this Act as the Tasmanian Board.

(2)  Subject to subsection (3) , the Tasmanian Board consists of 5 members.

(3)  For the purpose of discharging its functions under Division 3 of Part 3 , the Tasmanian Board consists of 7 members, being –

(a) the 5 members referred to in subsection (2) ; and

(b) an additional 2 members.

(4)  The members are appointed by the Governor.

(5)  In making appointments to the Tasmanian Board the Governor may give consideration to appointing persons skilled in the fields of psychology, literature and education.

(6)  One of the persons constituting the Tasmanian Board for the purpose of discharging its functions under Division 3 of Part 3 is to be a person who is under 25 when appointed or reappointed to the Board.

(7)  The Governor may appoint a member referred to in subsection (2) as Chairperson and another such member as Deputy Chairperson.

(8)  The Minister may make arrangements to provide the Tasmanian Board with such accommodation, services and other facilities as it may require.

(9)  Schedule 1 has effect with respect to the membership and meetings of the Tasmanian Board.

6.   Registrar

(1)  For the purposes of this Act the Secretary of the Department may appoint a person employed in the Department to be Registrar of the Tasmanian Board and that person may hold office as Registrar in conjunction with the person's position in the State Service.

(2)  A person appointed as Registrar does not incur any personal liability for any act done or purported or omitted to be done by that person in good faith as Registrar.

Division 2 - Classification of publications

7.   Types of classification

The following are the different types of classification for publications in ascending order:

(a) unrestricted publication;

(b) category 1 restricted publication;

(c) category 2 restricted publication;

(d) prohibited publication.

8.   Tasmanian Board to decide classification of publications

(1)  The Tasmanian Board must decide the classification to be assigned to a publication that is referred to it by the Minister.

(2)  The Tasmanian Board may, on its own motion, and must, on the application of any person, decide the classification to be assigned to a publication.

(3)  An application under subsection (2) is to be –

(a) in writing; and

(b) on a form provided or approved by the Tasmanian Board; and

(c) lodged with the Registrar; and

(d) accompanied by a copy of the publication.

9.   Criteria for deciding classification of publication

(1)  The Tasmanian Board must, in deciding whether a publication is an objectionable publication, or suitable or unsuitable for perusal or viewing by a minor, have regard to –

(a) the standards of morality, decency and propriety generally accepted by reasonable adults; and

(b) any literary, artistic or educational merit the publication may possess; and

(c) the general character of the publication, including whether it is of a medical, legal or scientific character.

(2)  The Tasmanian Board must, in deciding what classification to assign to a publication, have regard to –

(a) the persons or class of person to or amongst whom it is published or is intended or likely to be published; and

(b) the conditions, if any, subject to which it should be published.

(3)  In performing its functions the Tasmanian Board must, as far as possible, give effect to the following principles:

(a) that adults are entitled to read what they wish;

(b) that all persons are entitled to be protected from exposure to unsolicited publications they find offensive.

10.   Classification of publication by Tasmanian Board

(1)  The Tasmanian Board must classify a publication as an unrestricted publication if it decides that the publication –

(a) is not an objectionable publication; and

(b) is not unsuitable for perusal by a minor.

(2)  Subject to subsection (3) , the Tasmanian Board must classify a publication as a category 1 or category 2 restricted publication if it decides that the publication –

(a) describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in a manner that is likely to cause offence to a reasonable adult; or

(b) is unsuitable for perusal by a minor.

(3)  The Tasmanian Board must classify as a prohibited publication a publication which –

(a) describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a manner that it offends against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that it should, in the opinion of the Board, be classified as a prohibited publication; or

(b) is a child abuse publication; or

(c) describes, depicts, expresses or otherwise deals with an act of bestiality; or

(d) promotes, incites or encourages terrorism.

(4)  If a publication under consideration by the Tasmanian Board is a single issue of a series of publications that are issued periodically or by instalment, the Board may classify future issues of the same series on the basis of the publication under consideration and the classification applies to those future issues accordingly.

(5)  If changes have been or are to be made in the nature, contents or characteristics of an issue of a series of classified publications and the Tasmanian Board is satisfied that by reason of those changes the classification should be varied, the Board may vary the classification so far as it relates to issues of that series of publications published after such date as the Board may specify.

11.   Variation of classification of publication

(1)  Subject to this section, the Tasmanian Board may on its own motion and must, on the application of the Minister or any other person, review the classification assigned to a publication and, on the review, may vary the classification as it considers appropriate.

(2)  An application under subsection (1) made by a person other than the Minister is to be –

(a) in writing; and

(b) on a form provided or approved by the Tasmanian Board; and

(c) lodged with the Registrar; and

(d) accompanied by a copy of the publication.

(3)  The Tasmanian Board is not to review a classification assigned to a publication within 12 months from the day on which the classification of the publication first took effect.

(4)  If an application is made under subsection (1) and the Tasmanian Board has reviewed the classification assigned to the relevant publication within the preceding 12 months, the Board is not obliged to proceed with the review until the expiration of 12 months from the date of the previous review.

(5)  Subsections (3) and (4) do not apply to a publication that, being a single issue of a series of publications that are issued periodically or by instalment, is classified by virtue of a classification assigned to an earlier issue of the series under section 10 (4) .

12.   When does a classification or variation of classification take effect?

Except as provided in section 10 (5) , the classification of a publication or the variation of the classification of a publication takes effect –

(a) on the fourteenth day after the day on which the decision to assign the classification was made or the classification was varied; or

(b) on such earlier day as the Tasmanian Board may determine.

13.   Tasmanian Board to give notice of its decisions

(1)  When the Tasmanian Board makes a decision on the classification to be assigned to a publication it must, within 14 days –

(a) give notice of the decision to the person who applied to have the publication classified or, in the case of a referral by the Minister, to the Minister; and

(b) cause a notice of the decision to be published in at least one daily newspaper published and circulated generally in Tasmania.

(2)  When the Tasmanian Board has reviewed the classification assigned to a publication it must, within 14 days –

(a) give notice of the decision on the review to the person who applied for the review; and

(b) cause a notice of the decision to be published in at least one daily newspaper published and circulated generally in Tasmania.

(3)  A notice published in a newspaper for the purposes of this section is to contain –

(a) a notification that on a specified day the Tasmanian Board made a decision in respect of the classification of a publication or varied the classification of a publication; and

(b) a notification of the date that the classification or variation of classification takes effect; and

(c) a statement to the effect that particulars with respect to the publication, including its title or name, are available on request from the Registrar without payment of a fee; and

(d) such other particulars as the Board may consider necessary or appropriate.

Division 3 - Category 1 and 2 restricted publications

14.   Conditions applying to category 1 restricted publications

(1)  The following conditions apply in relation to a publication that is classified as a category 1 restricted publication:

(a) the publication must not be sold or delivered to a minor, other than by a parent of that minor;

(b) the publication must not be exhibited in a public place unless the publication is contained in a sealed package;

(c) if the sealed package referred to in paragraph (b) is made of transparent material –

(i) the publication must bear the determined markings; and

(ii) no more than the top 6 centimetres of the publication is to be exhibited or displayed in a public place;

(d) if the sealed package referred to in paragraph (b) is made of opaque material – both the publication and the package must bear the determined markings;

(e) the publication must not be exhibited in a public place unless it is exhibited in a designated area of the public place in a vertical rack.

(2)  It is sufficient compliance with subsection (1) (c) (ii) if that part of the publication below the top 6 centimetres –

(a) is hidden by a cover, rack or other thing; and

(b) cannot be seen except by handling the publication.

(3)  For the purpose of subsection (1) (e) , designated area means an area which is –

(a) used to exhibit or display category 1 restricted publications; and

(b) easily identifiable and clearly marked as an area where publications which are unsuitable for perusal by minors are exhibited.

15.   Conditions applying to category 2 restricted publications

The following conditions apply in relation to a publication that is classified as a category 2 restricted publication:

(a) the publication must not be sold, delivered or exhibited to a minor, other than by a parent of that minor;

(b) the publication must not be exhibited in a public place or in such a manner that it is visible from a public place;

(c) the publication must not be sold or delivered to a person unless the publication bears the determined markings;

(d) the publication must not be sold or delivered to a person who has not made a direct request for the publication;

(e) the publication must not be sold or delivered to a person unless the publication is contained in a package made of plain opaque material.

16.   Offences in relation to category 1 and 2 restricted publications

(1)  A person must not sell, deliver, exhibit or otherwise deal with, or cause or permit to be sold, delivered, exhibited or otherwise dealt with, a category 1 or category 2 restricted publication otherwise than in accordance with the conditions applicable to that publication.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 12 months, or both.

(2)  A person must not sell a category 2 restricted publication to another person knowing or having reason to believe that that other person –

(a) intends to deliver or exhibit the publication to a minor; and

(b) is not the minor's parent.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 12 months, or both.

(3)  A responsible person in respect of a business carried on in or on any premises must not –

(a) permit a minor employed in that business to have access to a category 2 restricted publication; or

(b) cause or permit such a minor to sell a category 2 restricted publication.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 12 months, or both.

Division 4 - Other publications and offences

17.   Offences in relation to unclassified objectionable publications

(1)  Subject to subsection (2) , a person must not –

(a) sell or deliver an unclassified objectionable publication or cause or permit such a publication to be sold or delivered; or

(b) exhibit, or cause or permit to be exhibited, an unclassified objectionable publication in a public place or in such a manner that it is visible from a public place.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 12 months, or both.

(2)  Subsection (1) (a) does not apply to the delivery of an unclassified objectionable publication to the Tasmanian Board for the purpose of having a decision made under this Part in relation to the publication.

(3)  A person is not to be convicted of an offence under subsection (1) if it is proved that –

(a) since the offence was alleged to have been committed the publication has been classified; and

(b) the act alleged to constitute the offence did not infringe any conditions, other than the conditions relating to prescribed markings, that would have been applicable to the publication had it been so classified at the time when the act was done.

(4)  A person must not exhibit an unclassified objectionable publication to a minor if that person is not the minor's parent.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 12 months, or both.

(5)  A person must not publish an advertisement relating to an unclassified objectionable publication or cause or permit such an advertisement to be published.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 12 months, or both.

18.   Offences in relation to prohibited publications

(1)  A person must not –

(a) sell or deliver a prohibited publication or cause or permit such a publication to be sold or delivered; or

(b) exhibit, or cause or permit to be exhibited, a prohibited publication in a public place or in such a manner that it is visible from a public place.

Penalty:  Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both.

(2)  A person must not exhibit a prohibited publication to a minor.

Penalty:  Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both.

19.   Offences in relation to misleading or deceptive markings

(1)  A person must not publish an unclassified publication with a marking, or in packaging with a marking, that indicates or suggests that the publication has been classified.

Penalty:  Fine not exceeding 10 penalty units.

(2)  A person must not publish a classified publication with a marking, or in packaging with a marking, that indicates that the publication is unclassified or has a different classification.

Penalty:  Fine not exceeding 10 penalty units.

PART 3 - Films

Division 1 - Exhibition of films

20.   Requirements for exhibiting film in public place

A person must not exhibit a film in a public place unless the film –

(a) is classified; and

(b) is exhibited under the same title as that under which it is classified; and

(c) is exhibited in the form, without alteration or addition, in which it is classified.

Penalty:  Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both.

21.   Classification notice to be displayed when exhibiting film in public place

A person must not exhibit a film in a public place unless a notice in the approved form about classifications for films is displayed in that public place in a position where the notice may be clearly seen and easily read by members of the public.

Penalty:  Fine not exceeding 5 penalty units.

22.   RC or X film not to be exhibited in public place

A person must not exhibit in a public place a film classified RC or X.

Penalty:  Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both.

23.   RC, X, R or MA film not to be exhibited if visible from public place

A person must not exhibit a film classified RC, X, R or MA if the film can be seen from a public place.

Penalty:   –

(a) in the case of a film classified R or MA – a fine not exceeding 20 penalty units; or

(b) in the case of a film classified RC or X – a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both.

24.   Unclassified RC, X, R or MA film not to be exhibited if visible from public place

A person must not exhibit an unclassified film that would, if classified, be reasonably likely to be classified RC, X, R or MA if the film can be seen from a public place.

Penalty:   –

(a) in the case of an unclassified film that would, if classified, be reasonably likely to be classified R or MA – a fine not exceeding 20 penalty units; or

(b) in the case of an unclassified film that would, if classified, be reasonably likely to be classified RC or X – a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both.

25.   RC, X or R film not to be exhibited privately in presence of minor

(1)  A person must not exhibit a film privately in the presence of a minor if the film is classified RC, X or R.

Penalty:   –

(a) in the case of a film classified R – a fine not exceeding 20 penalty units; or

(b) in the case of a film classified RC or X – a fine not exceeding 50 penalty units.

(2)  It is a defence to a prosecution under subsection (1) to prove that the defendant believed on reasonable grounds that the minor was an adult.

26.   Unclassified RC, X or R film not to be exhibited in presence of minor

(1)  A person must not exhibit an unclassified film privately in the presence of a minor if the film would, if classified, be reasonably likely to be classified RC, X or R.

Penalty:   –

(a) in the case of an unclassified film that would, if classified, be reasonably likely to be classified R – a fine not exceeding 20 penalty units; or

(b) in the case of an unclassified film that would, if classified, be reasonably likely to be classified RC or X – a fine not exceeding 50 penalty units.

(2)  It is a defence to a prosecution under subsection (1) to prove that the defendant believed on reasonable grounds that the minor was an adult.

27.   R or MA film not to be exhibited on premises where films sold

A person must not exhibit a film on premises where films are sold if the film is classified R or MA.

Penalty:  Fine not exceeding 20 penalty units.

28.   R film not to be exhibited in public place in presence of minor

(1)  A person must not exhibit a film in a public place in the presence of a minor if the film is classified R.

Penalty:  Fine not exceeding 20 penalty units.

(2)  It is a defence to a prosecution under subsection (1) to prove that –

(a) the minor produced to the defendant, or to an employee or agent of the defendant, acceptable proof of age before the minor was admitted to the place where the film was exhibited; or

(b) the defendant, or an employee or agent of the defendant, believed on reasonable grounds that the minor was an adult.

29.   Parent not to allow minor to attend exhibition of R film

A person who is the parent of a minor must not allow that minor to attend the exhibition of a film if the person knows that the film –

(a) is classified R; or

(b) is unclassified but would, if classified, be reasonably likely to be classified R.

Penalty:  Fine not exceeding 20 penalty units.

30.   Minor not to attend exhibition of R film

A minor who is 15 or older must not attend the exhibition in a public place of a film classified R knowing that the film is so classified.

Penalty:  Fine not exceeding 5 penalty units.

31.   MA film not to be exhibited in public place in presence of unaccompanied minor

(1)  A person must not exhibit in a public place a film classified MA if –

(a) a minor under 15 is present; and

(b) the minor is not accompanied by the minor's parent.

Penalty:  Fine not exceeding 20 penalty units.

(2)  For the purposes of subsection (1)  –

(a) a minor does not cease to be accompanied if the minor's parent is temporarily absent from the exhibition of the film; and

(b) an offence is committed in respect of each unaccompanied minor under 15 present at the exhibition of the film.

(3)  It is a defence to a prosecution under subsection (1) to prove that the defendant, or the defendant's employee or agent –

(a) took reasonable steps to ensure that a minor under 15 was not present at the exhibition of the film; or

(b) believed on reasonable grounds that the minor so present was 15 or older; or

(c) believed on reasonable grounds that the person accompanying the minor so present was the minor's parent.

Division 2 - Sale and delivery of films

32.   Unclassified film not to be sold or delivered

(1)  A person must not –

(a) sell or deliver an unclassified film; or

(b) cause or permit an unclassified film to be sold or delivered.

Penalty:  Subject to subsection (2) , a fine not exceeding 25 penalty units.

(2)  If a court convicts a person of an offence under subsection (1) and, by that time, the film to which the conviction relates has been classified, the court may, on the application of the prosecutor made at any time before sentence, impose on the person whichever of the following penalties applies to the film instead of the penalty under subsection (1) :

(a) if the film has been classified X or RC – a fine not exceeding 100 penalty units;

(b) if the film has been classified MA or R – a fine not exceeding 50 penalty units.

33.   Classified film not to be sold or delivered under different title or in altered form

A person must not sell or deliver a classified film unless the film is sold or delivered –

(a) under the same title as that under which it is classified; and

(b) in the form, without alteration or addition, in which it is classified.

Penalty:   –

(a) in the case of a film classified G, PG or M – a fine not exceeding 5 penalty units; or

(b) in the case of a film classified MA or R – a fine not exceeding 20 penalty units.

34.   Classification notice to be displayed on premises where film sold

A person must not sell a film on any premises unless a notice in the approved form about classifications for films is displayed on those premises in a position where the notice may be clearly seen and easily read by members of the public.

Penalty:  Fine not exceeding 5 penalty units.

35.   Film sold or delivered is to bear determined markings and consumer advice

(1)  A person must not sell or deliver a film unless the determined markings relevant to the classification of the film and relevant consumer advice, if any, are displayed on the container, wrapping or casing of the film.

Penalty:  Fine not exceeding 20 penalty units.

(2)  A person must not sell or deliver an unclassified film if the container, wrapping or casing in which the film is sold bears a marking that indicates or suggests that the film has been classified.

Penalty:  Fine not exceeding 20 penalty units.

(3)  A person must not sell or deliver a classified film if the container, wrapping or casing in which the film is sold bears a marking that indicates or suggests that the film is unclassified or has a different classification.

Penalty:  Fine not exceeding 20 penalty units.

(4)  If a film is reclassified under Part 4 of the Commonwealth Act, display of the determined markings and relevant consumer advice applicable to the film before reclassification is sufficient compliance with this section for a period of 30 days after the decision to reclassify takes effect.

36.   RC or X film not to be sold or delivered

A person must not –

(a) sell or deliver a film classified RC or X; or

(b) cause or permit a film classified RC or X to be sold or delivered.

Penalty:   –

(a) if the sale or delivery is to a minor – a fine not exceeding 200 penalty units or imprisonment for a term not exceeding 2 years, or both; or

(b) in any other case – a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both.

37.   R film not to be sold or delivered to minor

(1)  A person must not sell or deliver a film classified R to a minor if the person is not the minor's parent.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 12 months, or both.

(2)  It is a defence to a prosecution under subsection (1) to prove that –

(a) the minor produced to the defendant, or to an employee or agent of the defendant, acceptable proof of age before the defendant sold or delivered the film to the minor and the defendant, or the defendant's employee or agent, believed on reasonable grounds that the minor was an adult; or

(b) in the case of a prosecution for delivery of such a film, the minor was employed by the defendant or the defendant's employer and the delivery took place in the course of that employment.

38.   MA film not to be sold or delivered to minor under 15

(1)  A person must not sell or deliver a film classified MA to a minor under 15 if the person is not the minor's parent.

Penalty:  Fine not exceeding 20 penalty units.

(2)  It is a defence to a prosecution under subsection (1) to prove that the defendant or the defendant's employee or agent believed on reasonable grounds that –

(a) the minor was 15 or older; or

(b) the minor's parent had consented to the sale or delivery.

39.   Minor who is 15 or older not to buy R film

A minor who is 15 or older must not buy a film classified R knowing that it is so classified.

Penalty:  Fine not exceeding 5 penalty units.

Division 3 - Review of classification of films for sale

40.   Interpretation of Division

In this Division, film means a film offered for sale in this State.

41.   Application to review classification of film emphasising cruelty or violence

(1)  A person who considers that a classified film unduly emphasises matters of cruelty or violence may apply to the Tasmanian Board to review the film's classification.

(2)  The application is to be –

(a) in writing; and

(b) lodged with the Registrar; and

(c) if the application is made by a person other than the Minister – accompanied by the prescribed fee and particulars of the matters of cruelty or violence that the applicant considers are unduly emphasised by the classified film.

(3)  On receiving the application, the Tasmanian Board –

(a) must review the classification of the film if it is classified R; or

(b) may review the classification of the film if it has any other classification.

42.   Criteria for reviewing classification of film

The Tasmanian Board must, in reviewing the classification of a classified film, have regard to –

(a) the standards of morality, decency and propriety generally accepted by reasonable adults; and

(b) any artistic or educational merit that the film may possess and the general character of the film; and

(c) the persons or class of person to whom or to which the film is sold or likely to be sold.

43.   Tasmanian Board to make recommendation to Minister after review

(1)  Within 14 days after reviewing the classification of a film classified R the Tasmanian Board must make whichever of the following recommendations to the Minister it considers appropriate:

(a) a recommendation that the sale and delivery of the film should be prohibited on the ground that it unduly emphasises matters of cruelty or violence;

(b) a recommendation that the sale and delivery of the film should not be prohibited.

(2)  Within 14 days after reviewing the classification of any other classified film the Tasmanian Board must make whichever of the following recommendations to the Minister it considers appropriate:

(a) a recommendation that the classification of the film for this State should be changed to a higher classification specified in the recommendation on the ground that the classification assigned to the film under the Commonwealth Act is inappropriate because of the level or amount of cruelty or violence depicted in the film;

(b) a recommendation that the classification of the film for this State should not be changed.

44.   Ministerial action on recommendation

(1)  On receiving a recommendation under section 43 (1) (a) , the Minister must make an order prohibiting the sale and delivery of the relevant classified film.

(2)  On receiving a recommendation under section 43 (2) (a) , the Minister must make an order assigning a higher classification to the relevant classified film, being the classification specified in the recommendation.

(3)  On receiving a recommendation under section 43 (1) (b) or (2) (b) , the Minister must –

(a) accept the recommendation; or

(b) if dissatisfied with the recommendation – request the Tasmanian Board to review it.

(4)  A request under subsection (3) (b) is to –

(a) be in writing; and

(b) specify the grounds on which the Minister bases the request.

(5)  On receiving a request under subsection (3) (b) , the Tasmanian Board must, having regard to the grounds on which the Minister has based the request and the criteria in section 42 , review the recommendation to which the request relates and, within 14 days of the review, make another recommendation –

(a) confirming its original recommendation; or

(b) setting aside its original recommendation and making a recommendation under section 43 (1) (a) or (2) (a) .

(6)  If the Minister receives another recommendation under subsection (5)  –

(a) confirming an original recommendation under section 43 (1) (b) or (2) (b)  – the Minister must accept the original recommendation; or

(b) making a recommendation under section 43 (1) (a)  – the Minister must make an order prohibiting the sale and delivery of the relevant film; or

(c) making a recommendation under section 43 (2) (a)  – the Minister must make an order assigning a higher classification to the relevant classified film, being the classification specified in the recommendation.

45.   Effect of Ministerial order

A classified film to which an order under section 44 (2) or (6) (c) relates has, on the taking effect of the order, the classification assigned to it by the order, and for the purposes of this Act, that classification has effect in this State notwithstanding the classification assigned to the film under the Commonwealth Act.

46.   Provisions relating to orders

(1)  An order under section 44  –

(a) is not a statutory rule within the meaning of the Rules Publication Act 1953 ; and

(b) is to be published in the Gazette and in at least one daily newspaper published and circulated generally in Tasmania; and

(c) takes effect on such day as is specified in the order, being a day not earlier than 7 days after the date of its publication in the Gazette.

(2)  The Minister must give a copy of an order under section 44 to the Registrar.

(3)  On receiving the order the Registrar must in turn give notice of the making of the order to the person (if not the Minister) who applied under section 41 (1) for the review of the classified film to which the order relates.

47.   Provisions relating to Ministerial acceptance of recommendation

(1)  If the Minister accepts a recommendation under section 43 (1) (b) or (2) (b) , the Minister must give notice of acceptance to the Registrar.

(2)  On receiving the notice, the Registrar must in turn give notice to the person (if not the Minister) who applied to have the relevant film's classification reviewed, that the Minister has accepted the recommendation of the Tasmanian Board that the sale and delivery of the film should not be prohibited or that the film's classification for this State should not be changed.

48.   Offence to sell or deliver film that has been prohibited

A person must not sell or deliver, or cause or permit to be sold or delivered, a film the sale and delivery of which has been prohibited by an order under section 44 (1) or (6) (b) .

Penalty:   –

(a) if the sale or delivery is to a minor – a fine not exceeding 200 penalty units or imprisonment for a term not exceeding 2 years, or both; or

(b) in any other case – a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both.

PART 4 - Computer Games

49.   Requirements for selling, &c., computer game in public place

A person must not sell, deliver or demonstrate a computer game in a public place unless the computer game –

(a) is classified; and

(b) is sold, delivered or demonstrated under the same title as that under which it is classified; and

(c) is sold, delivered or demonstrated in the form, without alteration or addition, in which it is classified.

Penalty:  Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both.

50.   Classification notice to be displayed when selling or demonstrating computer game in public place

A person must not sell or demonstrate a computer game in a public place unless a notice in the approved form about classifications for computer games is displayed in that public place in a position where the notice may be clearly seen and easily read by members of the public.

Penalty:  Fine not exceeding 5 penalty units.

51.   Computer game sold or delivered is to bear determined markings and consumer advice

(1)  A person must not sell or deliver a computer game unless the determined markings relevant to the classification of the computer game and relevant consumer advice, if any, are displayed on the container, wrapping or casing of the computer game.

Penalty:  Fine not exceeding 20 penalty units.

(2)  A person must not sell or deliver an unclassified computer game if the container, wrapping or casing in which the computer game is sold bears a marking that indicates or suggests that the computer game has been classified.

Penalty:  Fine not exceeding 20 penalty units.

(3)  A person must not sell or deliver a classified computer game if the container, wrapping or casing in which the computer game is sold bears a marking that indicates or suggests that the computer game is unclassified or has a different classification.

Penalty:  Fine not exceeding 20 penalty units.

(4)  If a computer game is reclassified under Part 4 of the Commonwealth Act, display of the determined markings and consumer advice applicable to the computer game before reclassification is sufficient compliance with this section for a period of 30 days after the decision to reclassify takes effect.

52.   RC computer game not to be sold or delivered

A person must not sell or deliver –

(a) a computer game classified RC; or

(b) an unclassified computer game which would, if classified, be reasonably likely to be classified RC.

Penalty:   –

(a) if the sale or delivery is to a minor – a fine not exceeding 200 penalty units or imprisonment for a term not exceeding 2 years, or both; or

(b) in any other case – a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both.

53.   RC or MA (15+) computer game not to be demonstrated in public place

A person must not demonstrate in a public place –

(a) a computer game classified RC or MA (15+); or

(b) an unclassified computer game which would, if classified, be reasonably likely to be classified RC or MA (15+).

Penalty:   –

(a) in the case of a computer game classified RC – a fine not exceeding 100 penalty units or a term of imprisonment not exceeding 2 years, or both; or

(b) in the case of a computer game classified MA (15+) – a fine not exceeding 20 penalty units.

54.   RC computer game not to be demonstrated privately in presence of minor

(1)  A person must not demonstrate a computer game privately in the presence of a minor if the game –

(a) is classified RC; or

(b) is an unclassified computer game which would, if classified, be reasonably likely to be classified RC.

Penalty:  Fine not exceeding 20 penalty units.

(2)  It is a defence to a prosecution under subsection (1) to prove that the defendant believed on reasonable grounds that the minor was an adult.

55.   MA (15+) computer game not to be sold or delivered to minor under 15

(1)  A person must not sell or deliver a computer game classified MA (15+) to a minor under 15 if the person is not the parent of the minor.

(2)  It is a defence to a prosecution under subsection (1) to prove that the defendant, or the defendant's employee or agent, believed on reasonable grounds that –

(a) the minor was 15 or older; or

(b) the minor's parent had consented to the sale or delivery.

Penalty:  Fine not exceeding 20 penalty units.

PART 5 - Advertisements

56.   Unapproved advertisement not to be published, &c.

A person must not publish an advertisement for a film or computer game –

(a) if the advertisement has not been submitted for approval under section 29 of the Commonwealth Act and, if submitted, would be reasonably likely to be refused approval; or

(b) if the advertisement has been refused approval under section 29 of the Commonwealth Act; or

(c) if the advertisement is approved under section 29 of the Commonwealth Act in an altered form to the form in which it is approved; or

(d) if the advertisement is approved under section 29 of the Commonwealth Act subject to conditions – except in accordance with those conditions.

Penalty:  Fine not exceeding 20 penalty units.

57.   Certain advertisements for films, publications and computer games not to be published

(1)  A person must not publish an advertisement for –

(a) a prohibited publication; or

(b) a category 2 restricted publication; or

(c) a film classified RC or X; or

(d) an unclassified film, other than a film in relation to which a certificate of exemption has been granted under section 32 of the Commonwealth Act; or

(e) a computer game classified RC; or

(f) an unclassified computer game.

Penalty:  Fine not exceeding 20 penalty units.

(2)  For the purposes of this section, if a person publishes an advertisement for an unclassified film or unclassified computer game at the request of another person, that other person alone is taken to have published the advertisement.

58.   Film advertisement not to be screened during public exhibition of other film of lower classification

A person must not screen in a public place an advertisement for a film during a program for the exhibition of another film unless the film exhibited has a classification specified in column 1 of an item in the following table and the advertised film has a classification specified opposite it in column 2 of that item:

TABLE

Item	Column 1 Exhibited film	Column 2 Advertised film
1	G	G
2	PG	PG or G
3	M	M, PG or G
4	MA	MA, M, PG or G
5	R	R, MA, M, PG or G

Penalty:  Fine not exceeding 20 penalty units.

59.   Film not to be sold or delivered with advertisement for film of higher classification

A person must not sell or deliver, or cause or permit to be sold or delivered, a film that is accompanied by an advertisement for another film unless the film sold has a classification specified in column 1 of an item in the following table and the advertised film has a classification specified opposite it in column 2 of that item:

TABLE

Item	Column 1 Film sold	Column 2 Advertised film
1	G	G
2	PG	PG or G
3	M	M, PG or G
4	MA	MA, M, PG or G
5	R	R, MA, M, PG or G

Penalty:  Fine not exceeding 20 penalty units.

60.   Computer game not to be sold or delivered with advertisement for computer game of higher classification

A person must not sell or deliver, or cause or permit to be sold or delivered, a computer game that is accompanied by an advertisement for another computer game unless the computer game sold has a classification specified in column 1 of an item in the following table and the advertised computer game has a classification specified opposite it in column 2 of that item:

TABLE

Item	Column 1 Computer game sold	Column 2 Advertised computer game
1	G	G
2	G (8 +)	G (8+) or G
3	M (15+)	M (15+), G (8+) or G
4	MA (15+)	MA (15+), M (15+),
		G (8+) or G

Penalty:  Fine not exceeding 20 penalty units.

61.   Misleading or deceptive advertisement not to be published

(1)  A person must not publish an advertisement for an unclassified publication, film or computer game with a marking that indicates or suggests that the publication, film or computer game is classified.

Penalty:  Fine not exceeding 20 penalty units.

(2)  A person must not publish an advertisement for a classified publication, film or computer game with a marking that indicates or suggests that the publication, film or computer game is unclassified or has a different classification.

Penalty:  Fine not exceeding 20 penalty units.

(3)  If a film or computer game is reclassified under Part 4 of the Commonwealth Act, publication of the determined markings applicable to the film or computer game before reclassification is sufficient compliance with subsection (2) for a period of 30 days after the decision to reclassify takes effect.

62.   Classification symbols, &c., to be published with advertisement

A person must not publish a publication containing an advertisement for –

(a) a film; or

(b) a category 1 restricted publication; or

(c) a computer game –

unless the publication also contains a list of the classification symbols and determined markings for films or publications or computer games.

Penalty:  Fine not exceeding 20 penalty units.

63.   Certain advertisements to contain determined markings and consumer advice

(1)  A person must not publish an advertisement for a classified film or computer game unless –

(a) the advertisement contains the determined markings relevant to the classification of the film or computer game and relevant consumer advice, if any; and

(b) the determined markings and consumer advice are displayed –

(i) in the manner determined by the director under section 8 of the Commonwealth Act; and

(ii) so as to be clearly visible, having regard to the size and nature of the advertisement.

Penalty:  Fine not exceeding 20 penalty units.

(2)  A person must not publish an advertisement for a category 1 restricted publication unless –

(a) the advertisement contains the determined markings relevant to the publication's classification; and

(b) the determined markings are displayed so as to be clearly visible, having regard to the size and nature of the advertisement.

Penalty:  Fine not exceeding 20 penalty units.

(3)  If a film or computer game is reclassified under Part 4 of the Commonwealth Act, display of the determined markings and relevant consumer advice applicable to the film or computer game before reclassification is sufficient compliance with subsection (1) for a period of 30 days after the decision to reclassify takes effect.

PART 6 - Call In Provisions

64.   Tasmanian Board may call in submittable publication for classification

(1)  If –

(a) the Chairperson has reasonable grounds to believe that a publication is a submittable publication; and

(b) the publication is being published in Tasmania or the Chairperson has reasonable grounds to believe that it will be published in Tasmania –

the Chairperson may, by notice given to the publisher of the publication, require the publisher to submit to the Tasmanian Board an application for classification of the publication, or of subsequent issues of the publication.

(2)  A person to whom a notice under subsection (1) is given must, within 3 business days after receiving the notice, comply with the notice.

Penalty:  Fine not exceeding 50 penalty units.

(3)  It is a defence to a prosecution under subsection (2) to prove that the defendant did not intend –

(a) to publish the publication in Tasmania; or

(b) to cause, authorise, permit or license the publication to be published in Tasmania.

65.   Commonwealth Board may call in computer game for classification

(1)  If –

(a) the Director has reasonable grounds to believe that a computer game is likely to contain contentious material; and

(b) the computer game is being published in Tasmania, or the Director has reasonable grounds to believe that it will be published in Tasmania –

the Director may, by notice given to the publisher of the game, require the publisher to submit to the Commonwealth Board an application for classification of the game.

(2)  A person to whom a notice under subsection (1) is given must, within 3 business days after receiving the notice, comply with the notice.

Penalty:  Fine not exceeding 50 penalty units.

(3)  It is a defence to a prosecution under subsection (2) to prove that the defendant did not intend –

(a) to publish the computer game in Tasmania; or

(b) to cause, authorise, permit or license the computer game to be published in Tasmania.

66.   Commonwealth Board may call in advertisement

(1)  The Director may, by notice given to –

(a) the publisher of a classified film that is being published in Tasmania, or that the Director has reasonable grounds to believe will be published in Tasmania; or

(b) the publisher of a computer game that is being published in Tasmania, or that the Director has reasonable grounds to believe will be published in Tasmania –

require the publisher to submit to the Commonwealth Board for approval a copy of every advertisement used or intended to be used in connection with the publishing.

(2)  A person to whom a notice under subsection (1) is given must, within 3 business days after receiving the notice, comply with the notice.

Penalty:  Fine not exceeding 50 penalty units.

(3)  It is a defence to a prosecution under subsection (2) to prove that the defendant did not intend –

(a) to publish the film or computer game in Tasmania; or

(b) to cause, authorise, permit or license the film or computer game to be published in Tasmania.

PART 7 - Exemptions for Films

67.   Exemption of film

The Minister may direct in writing that this Act does not apply, to the extent and subject to any condition specified in the direction, to or in relation to any film.

68.   Exemption of film exhibited by approved organisation

The Minister may, on application under section 70 , direct in writing that this Act does not apply, or that specified provisions of this Act do not apply, to an organisation approved under section 69 in relation to the exhibition of a film at an event specified in the direction.

69.   How does an organisation become an approved organisation?

(1)  An organisation may apply in writing to the Minister to be an approved organisation for the purposes of this Part.

(2)  The Minister may require the applicant organisation to provide such information or evidence as the Minister requires in order to consider the application.

(3)  On receiving the application the Minister may approve the organisation or refuse to approve the organisation.

(4)  In considering whether to approve an organisation, the Minister must have regard to –

(a) the purpose for which the organisation was formed; and

(b) the extent to which the organisation carries on activities of a medical, scientific, educational, cultural or artistic nature; and

(c) the reputation of the organisation in relation to the screening of films; and

(d) the conditions as to admission of persons to the screening of films by the organisation.

(5)  The Minister must cause notice of an approval to be published in the Gazette.

(6)  An approval takes effect on the date of publication of the notice referred to in subsection (5) .

(7)  The Minister may revoke an approval if, because of a change in any matter referred to in subsection (4) , the Minister considers that it is no longer appropriate that the organisation be approved.

(8)  The Minister must, within 30 days of making a decision to refuse an application for approval or revoke an approval, give the organisation concerned notice of the decision and the reasons for it.

(9)  Revocation of an approval takes effect on the date of the decision to revoke or on such later date as may be specified in the notice.

70.   Approved organisation may apply for exemption

(1)  An approved organisation may apply to the Minister for an exemption under section 68 .

(2)  The application is to –

(a) be in writing; and

(b) specify the film which the organisation intends to exhibit and the event at which the film is to be exhibited; and

(c) be accompanied by –

(i) a synopsis of the story or events depicted in the film; and

(ii) the prescribed fee.

(3)  The Minister must, within 30 days of making a decision to refuse an application for an exemption, give the organisation concerned notice of the decision and the reasons for it.

PART 8 - Child Abuse and Bestiality Products Unlawful

71.   Interpretation of Part

In this Part –

bestiality product means a publication, film or computer game that depicts in pictorial form bestiality;

child abuse product means a publication, film or computer game that describes or depicts a person (whether engaged in sexual activity or otherwise) who is, or who looks like, a child in a manner that is likely to cause offence to a reasonable adult;

make includes print, photograph and record.

72.   Offence to make or reproduce child abuse product or bestiality product

A person must not –

(a) make or reproduce a child abuse product or bestiality product; or

(b) cause or permit a child abuse product or bestiality product to be made or reproduced; or

(c) be in any way concerned in the making and reproduction of a child abuse product or bestiality product.

Penalty:  Fine not exceeding 200 penalty units or imprisonment for a term not exceeding 2 years, or both.

73.   Offence to procure child to be concerned with making child abuse product

A person must not procure or invite or attempt to procure a child to be in any way concerned in the making of a child abuse product.

Penalty:  Fine not exceeding 200 penalty units or imprisonment for a term not exceeding 2 years, or both.

74.   Offence to possess child abuse product or bestiality product

A person must not have possession of –

(a) a child abuse product; or

(b) a bestiality product.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 12 months, or both.

PART 9 - Miscellaneous

Division 1 - Enforcement and proceedings

75.   Power of police officers and other persons to demand particulars

(1)  In this section, prescribed person means a person who –

(a) exhibits, sells or delivers a film to another person or is about to exhibit, sell or deliver a film to another person; or

(b) demonstrates, sells or delivers a computer game to another person or is about to demonstrate, sell or deliver a computer game to another person; or

(c) sells or delivers a publication to another person or is about to sell or deliver a publication to another person.

(2)  A prescribed person who has reasonable cause to suspect that –

(a) he or she may be about to commit an offence against this Act in respect of another person; or

(b) another person has committed or is about to commit an offence against this Act –

may demand the name, age and address of that other person.

(3)  A police officer who has reasonable cause to suspect that a person has committed or is about to commit an offence against this Act may demand that person's name, age and address.

(4)  A person must not give false particulars, or fail or refuse to give particulars, to a prescribed person or police officer under subsection (2) or (3) .

Penalty:  Fine not exceeding 2 penalty units.

76.   Power of entry and seizure

(1)  In this section, prescribed premises means premises where publications, films or computer games are sold or where films are exhibited or where computer games are demonstrated, and includes any premises associated with those premises.

(2)  For the purposes of ascertaining whether there is or has been a contravention of or failure to comply with this Act, a police officer may, at any reasonable time, without warrant, enter any prescribed premises.

(3)  A police officer who has entered prescribed premises under the power conferred on that officer by subsection (2) may do all or any of the following things:

(a) search any room in, or any part of, the premises and examine anything in any such room or part;

(b) require the production of anything kept on those premises;

(c) seize –

(i) anything in respect of which the police officer has reasonable grounds for believing that an offence against this Act has been or is being committed; or

(ii) any advertisement displayed contrary to the provisions of this Act;

(d) seize anything that the police officer has reasonable grounds for believing is relevant to the investigation of an offence against this Act.

(4)  If anything has been seized from premises under this section and a court has convicted a person of an offence against this Act in respect of that thing, it is forfeited to the Crown and may be disposed of or destroyed in such manner as the Attorney-General may direct.

77.   Forfeiture relating to a Part 8 offence

(1)  [Section 77 Subsection (1) omitted by No. 35 of 1997, Sched. 1, Applied:01 Jun 1999] .  .  .  .  .  .  .  .  

(2)  [Section 77 Subsection (2) omitted by No. 35 of 1997, Sched. 1, Applied:01 Jun 1999] .  .  .  .  .  .  .  .  

(3)  [Section 77 Subsection (3) omitted by No. 35 of 1997, Sched. 1, Applied:01 Jun 1999] .  .  .  .  .  .  .  .  

(4)  [Section 77 Subsection (4) amended by No. 35 of 1997, Sched. 1, Applied:01 Jun 1999] If anything has been seized from premises under a warrant issued under the Search Warrants Act 1997 and a court has convicted a person of an offence against Part 8 in respect of that thing, it is forfeited to the Crown and may be disposed of or destroyed in such manner as the Attorney-General may direct.

78.   Evidence

(1)  In any proceedings for an offence against this Act –

(a) a certificate signed or purporting to be signed by the Director or Deputy Director and stating that –

(i) a film or computer game is, or was on a specified date, classified as specified in the certificate; or

(ii) a film or computer game is not classified, or is not classified at a classification specified in the certificate; or

(iii) an advertisement described in the certificate is approved or has been refused approval or has not been approved –

is evidence of the facts stated in the certificate; and

(b) a certificate signed or purporting to be signed by the Registrar and stating that –

(i) a publication is, or was on a specified date, classified as specified in the certificate; or

(ii) a publication is not classified, or is not classified at a classification specified in the certificate –

is evidence of the facts stated in the certificate.

(2)  A court that convicts or finds a person guilty of an offence against this Act may, on the application of the prosecutor, make an order that the person must pay, by way of costs, either or both of the following:

(a) the amount of any fee incurred in obtaining a certificate under subsection (1) (a) for the purposes of prosecuting the offence;

(b) the amount of any fee incurred by the prosecution for classification.

(3)  An order under subsection (2) is in addition to any other penalty the court may impose.

79.   Proceedings on prosecutions

Notwithstanding anything in the Justices Act 1959 to the contrary –

(a) proceedings in respect of an offence under section 72 or 73 may be commenced at any time within a period of 2 years after the time when the offence is alleged to have been committed; and

(b) proceedings in respect of any other offence under this Act may be commenced at any time within a period of 12 months after the time when the offence is alleged to have been committed.

80.   Matters averred to in complaint

(1)  In any proceedings for an offence against this Act, an averment in a complaint that a specified publication, film or computer game has been assigned a specified classification is, in the absence of proof to the contrary, to be accepted as proof –

(a) that the publication, film or computer game has been assigned that classification; and

(b) that the publication, film or computer game was so classified on the day the act alleged to constitute the offence in the complaint was committed.

(2)  In any proceedings for an offence against this Act, an averment in a complaint that a person was a child, a minor or a minor under 15 is, in the absence of proof to the contrary, to be accepted as proof that the person was a child, a minor or a minor under 15, as the case may be, on the day the act alleged to constitute the offence in the complaint was committed.

81.   Defence to offences with respect to minors and children

(1)  In any proceedings for an offence against Part 2 alleged to have been committed in respect of a minor, it is a defence to prove that at the time the offence was committed the defendant had reasonable grounds for believing that that minor was an adult or was married.

(2)  In any proceedings for an offence against this Act alleged to have been committed in respect of a child, it is a defence to prove that at the time the offence was committed the defendant had reasonable grounds for believing that the child had attained the age of 16 years.

82.   Offences by principals and bodies corporate

(1)  If an offence against this Act is committed by a person employed in respect of any premises where a business is carried on, each responsible person in respect of that business is taken also to have committed the offence and may be convicted of the offence unless the responsible person proves that –

(a) the offence took place without the responsible person's knowledge or consent; and

(b) the responsible person took all such steps as were reasonable in the circumstances to prevent the offence from being committed.

(2)  If an offence against this Act is committed by a body corporate, each person concerned in the management of that body corporate is taken also to have committed the offence and may be convicted of the offence unless the person proves that the act or omission constituting the offence took place without that person's knowledge or consent.

(3)  A person referred to in subsection (2) may be convicted of an offence against this Act whether or not the body corporate is charged with or convicted of the offence.

83.   Higher penalty for offence committed by body corporate

If a body corporate is convicted of an offence against this Act, the penalty that the court may impose is a fine not exceeding 2 times the maximum amount that, but for this section, the court could impose as a pecuniary penalty for the offence.

Division 2 - Administrative, consequential and transitional

84.   Record of Tasmanian classifications

(1)  The Tasmanian Board must keep a record of all classification decisions made by it.

(2)  Any person is entitled, on making application to the Registrar in a manner approved by the Registrar, to inspect the record of the Tasmanian Board's classification decisions.

85.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(2)  Regulations made under this Act may contain provisions of a savings or transitional nature consequent upon the enactment of this Act.

(3)  A provision of a regulation made pursuant to subsection (2) may, if the regulation so provides, take effect on the date referred to in section 2 or a later date.

87.   Repeals

The Acts specified in Schedule 2 are repealed.

88.   Savings and transitional provisions

The savings and transitional provisions set out in Schedule 3 have effect.

89.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Minister for Justice; and

(b) the Department responsible to the Minister for Justice in relation to the administration of this Act is the Department of Justice.

SCHEDULE 1 - Provisions with Respect to Membership and Meetings of Publications Classification Board

Section 5 (9)

1.   Term of office

(1) A member is appointed for such term, not exceeding 3 years, as is specified in the member's instrument of appointment.

(2) A member is eligible to be reappointed, on one or more occasions, for a further term not exceeding 3 years.

2.   Holding office

The holder of an office who is required under any Act to devote the whole of his or her time to the duties of that office is not disqualified from –

(a) holding that office and also the office of a member; or

(b) accepting any remuneration payable to a member.

3.   Conditions of appointment

A member holds office on such conditions relating to matters not provided for by this Act as are specified in the member's instrument of appointment.

4.   Nature of office

(1) The office of a member is not an office of profit under the Crown.

(2) The Tasmanian State Service Act 1984 does not apply to the office of a member.

5.   Remuneration of members

(1) A member is entitled to be paid such remuneration, including travelling and subsistence allowances, as the Governor may from time to time determine.

(2) A determination under subclause (1) does not apply to a member who is an employee within the meaning of the Tasmanian State Service Act 1984 without the approval of the Head of the Agency in which the member is employed.

6.   Vacation of office

(1) A member vacates office if the member –

(a) dies; or

(b) resigns; or

(c) is removed from office under subclause (2) .

(2) The Governor may remove a member from office if –

(a) the Governor is satisfied that the member is unable to perform adequately or competently the functions of office; or

(b) the member is convicted, in Tasmania or elsewhere, of a crime or offence punishable by imprisonment for a period exceeding 12 months; or

(c) the member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration or estate for their benefit; or

(d) the member is absent from 3 consecutive meetings of the Tasmanian Board, as constituted with that member, without the permission of the Board; or

(e) the Governor is satisfied that the member has been guilty of misbehaviour or incompetence.

7.   Filling of vacancy

If the office of a member becomes vacant, the Governor may appoint a person to the vacant office for the balance of that member's term of office.

8.   Validity of proceedings

An act or proceeding of the Tasmanian Board or of a person acting under the direction of the Board is not invalid by reason only that at the time when the act or proceeding was done, taken or commenced there was a vacancy in the membership of the Board.

9.   Presumptions

In any proceedings, unless evidence is given to the contrary, proof is not required of –

(a) the constitution of the Tasmanian Board; or

(b) any resolution of the Tasmanian Board; or

(c) the appointment of any member of the Tasmanian Board; or

(d) the presence of a quorum at a meeting of the Tasmanian Board.

10.   Procedure at meetings

(1) Subject to subclause (2) , 3 members form a quorum at any duly convened meeting of the Tasmanian Board.

(2) For the purpose of discharging its functions under Division 3 of Part 3 , 4 members form a quorum at any duly convened meeting of the Board.

(3) Any meeting of the Board at which a quorum is present is competent to transact any business of the Board.

(4) Questions arising at a meeting of the Board are to be determined by a majority of votes of the members present and voting.

(5) In the event of an equality of votes on a question arising at a meeting of the Board, the question stands adjourned until its next meeting.

11.   Who presides at meetings

(1) The Chairperson is to preside at all meetings of the Board at which the Chairperson is present.

(2) If the Chairperson is not present at a meeting of the Board, the Deputy Chairperson is to preside at the meeting.

(3) The person presiding at a meeting of the Board has a deliberative vote only.

12.   General procedures

Subject to this Schedule, the Tasmanian Board may determine its own procedures.

SCHEDULE 2 - Repeals

Section 87

SCHEDULE 3 - Savings and Transitional Provisions

Section 88

1.   Interpretation

In this Schedule –

commencement day means the day proclaimed under section 2 ;

former Act means the Classification of Publications Act 1984;

Ordinance means the Classification of Publications Ordinance 1983 of the Australian Capital Territory.

2.   Prescribed fee

Until a fee is prescribed for the purposes of section 41 (2) , the fee for an application to the Tasmanian Board under that section is $5.

3.   Continuation of Tasmanian Board

(1) A person who, immediately before the commencement day, was a member of the Tasmanian Board under the former Act is taken to have been appointed as a member of the Board under this Act and that person holds that office subject to this Act for the remainder of the term for which the person was appointed under the former Act.

(2) The person who, immediately before the commencement day, was the chairman of the Tasmanian Board under the former Act is taken to have been appointed as Chairperson of the Board under this Act.

(3) The person who, immediately before the commencement day, was deputy chairman of the Tasmanian Board under the former Act is taken to have been appointed as Deputy Chairperson of the Board under this Act.

4.   Registrar

The person who, immediately before the commencement day, was the Registrar of the Tasmanian Board under the former Act is taken to have been appointed as Registrar of the Board under this Act.

5.   Publications

(1) A publication that, immediately before the commencement day, was classified "unrestricted publication", "category 1 restricted publication", "category 2 restricted publication" or "prohibited publication" is taken to have been classified "unrestricted publication", "category 1 restricted publication", "category 2 restricted publication" or "prohibited publication" respectively under this Act.

(2) An application or referral made under section 12 of the former Act and not determined immediately before the commencement day is taken to be an application or referral made under section 8 of this Act.

(3) An application made under section 15 of the former Act and not determined immediately before the commencement day is taken to be an application made under section 11 of this Act.

6.   Computer Games

(1) A computer game that, immediately before the commencement day, was classified "G", "G (8+)", "M (15+)" or "MA (15+)" under the Ordinance is taken to have been classified "G", "G (8+)", "M (15+)" or "MA (15+)" respectively under the Commonwealth Act.

(2) A computer game that has been refused or is taken to have been refused classification under the Ordinance is taken to have been classified "RC" under the Commonwealth Act.

(3) Nothing in this Act, other than section 65 , applies to or in relation to a computer game published before the commencement day unless the computer game has been classified or refused classification under the Ordinance.

(4) Advertising matter, in relation to a computer game, which has been approved or refused approval under the Ordinance before the commencement day is taken to have been approved or refused approval respectively under the Commonwealth Act.

7.   Films

(1) A film that, immediately before the commencement day, was classified "G", "PG", "M", "MA" or "R" under the former Act is taken to have been classified "G", "PG", "M", "MA" or "R" respectively under the Commonwealth Act.

(2) A film that, immediately before the commencement day, was classified "G", "PG", "M", "MA" or "R" under the Films Act 1971 is taken to have been classified "G", "PG", "M", "MA" or "R" respectively under the Commonwealth Act.

(3) A film that has been refused classification under the Ordinance is taken to have been classified "RC" under the Commonwealth Act.

(4) A film that, immediately before the commencement day, was classified "X" under the Ordinance is taken to have been classified "X" under the Commonwealth Act.

(5) An application made under section 26A of the former Act and not determined immediately before the commencement day is taken to be an application made under section 41 of this Act.

(6) An order of the Minister made under section 26B (1) or (6) (b) of the former Act and in force immediately before the commencement day is taken to be an order of the Minister made under section 44 (1) or (6) (b) of this Act and is enforceable accordingly.

(7) An application made under the former Act or Films Act 1971 for the classification or review of the classification of a film or for the review of a decision and not determined immediately before the commencement day is taken to have been made under the Commonwealth Act.

(8) Advertising matter, in relation to a film, which has been approved or refused approval under the Films Act 1971 is taken to have been approved or refused approval respectively under the Commonwealth Act.

(9) An application made under section 14A of the Films Act 1971 for an advertising exemption and not determined immediately before the commencement day is taken to be an application for a certificate of exemption under section 32 of the Commonwealth Act.

(10) A certificate of advertising exemption issued under section 14C of the Films Act 1971 and in force immediately before the commencement day is taken to be a certificate of exemption granted under section 33 of the Commonwealth Act.