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

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 [Royal Assent 8 December 1995] 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 has the same meaning as in the Commonwealth Act; Advertising Scheme means the scheme determined from time to time under section 31 of the Commonwealth Act; approved advertisement means an advertisement approved under section 29 of the Commonwealth Act ; approved form means a form approved under section 8A of the Commonwealth Act; bestiality means sexual activity of any kind between a human being and an animal; Board means the Classification Board established by the Commonwealth Act; business day means a day other than – (a) a Saturday or Sunday; or (b) a statutory holiday as defined in the Statutory Holidays Act 2000 ; 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; classification certificate means a certificate issued under section 25 of the Commonwealth Act; classified means 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under that Act; Code means the National Classification Code, set out in the Schedule to the Commonwealth Act as originally enacted, as amended in accordance with section 6 of the Commonwealth Act ; Commonwealth Act means the Classification (Publications, Films and Computer Games) Act 1995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 Gazette means the Commonwealth of Australia Gazette; computer game has the same meaning as in the Commonwealth Act; consumer advice means consumer advice given under section 20 of the Commonwealth Act ; contentious material, in relation to a computer game, means material that would be likely to cause it to be classified M, MA 15+, R 18+ or RC; Convenor means the Convenor of the Review Board appointed under section 74 of the Commonwealth Act; demonstrate includes exhibit, display, screen, play or make available for playing; Deputy Director means Deputy Director of the Board; determined markings means markings determined under section 8 of the Commonwealth Act ; Director means Director of the Board; exempt computer game has the same meaning as in the Commonwealth Act; exempt film has the same meaning as in the Commonwealth Act; exhibit – (a) in relation to a film, means project or screen; and (b) in relation to a publication, includes display; film has the same meaning as in the Commonwealth Act; guardian means an adult who is exercising parental control over a minor under 15; international flight, in relation to an aircraft, means a flight that passes through the airspace over the territory of more than one country and includes any part of the flight that may occur within Australia; international voyage, in relation to a vessel, means a voyage, whether direct or indirect, between a place in Australia and a place outside Australia and includes any part of the voyage that may occur within Australia; 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) (c) describes, depicts, expresses or otherwise deals with an act of bestiality; or (d) promotes, incites or encourages terrorism; or (e) is classified RC or would, if classified, be classified RC; parent includes guardian; place includes premises or vacant land; premises includes vehicle, vessel and aircraft except a vessel on an international voyage or an aircraft on an international flight; privately means not in a public place; 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 has the same meaning as in the Commonwealth Act; publish includes sell, exhibit, display, distribute and demonstrate; 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; Review Board means the Classification Review Board established by the Commonwealth Act; Review Committee means the Review Committee established by the Minister under section 41A ; 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; subject to a conditional cultural exemption has the same meaning as in the Commonwealth Act; submittable publication has the same meaning as in the Commonwealth Act and includes a publication called in by the Minister or Director under section 64 ; 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 . 3A. Application of Act This Act does not apply to – (a) exempt films or exempt computer games; or (ab) a publication, film or computer game that is subject to a conditional cultural exemption; or (b) broadcasting services to which the Broadcasting Services Act 1992 of the Commonwealth applies. 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. 4A. Films contained on devices consisting only of classified films Despite any other provision of this Act, a film that – (a) is contained on one device; and (b) consists only of 2 or more classified films – is to be treated for the purposes of this Act as if each of the classified films were on a separate device. PART 2 - Publications Division 1 - . . . . . . . . 5. . . . . . . . . 6. . . . . . . . . Division 2 - . . . . . . . . 7. . . . . . . . . 8. . . . . . . . . 9. . . . . . . . . 10. . . . . . . . . 11. . . . . . . . . 12. . . . . . . . . 13. . . . . . . . . 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 category 1 restricted: (a) the publication must not be sold or delivered to a 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. (1A) If – (a) a publication is reclassified under section 22CH(4), 39 or 97A of the Commonwealth Act; or (b) the Board revokes a classification for a publication under section 22B(3) or 22CH(1) of that Act – it is sufficient compliance with subsection (1)(c)(i) and (d) for a period of 30 days after the decision to reclassify or revoke takes effect if the publication bears the determined markings applicable to the publication before that reclassification or revocation. (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 publications classified category 1 restricted; 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 (1) The following conditions apply in relation to a publication that is classified category 2 restricted: (a) the publication must not be sold, delivered or exhibited to a 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. (2) If – (a) a publication is reclassified under section 22CH(4), 39 or 97A of the Commonwealth Act; or (b) the Board revokes a classification for a publication under section 22B(3) or 22CH(1) of that Act – it is sufficient compliance with subsection (1)(c) for a period of 30 days after the decision to reclassify or revoke takes effect if the publication bears the determined markings applicable to the publication before that reclassification or revocation. 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 publication classified category 1 restricted or category 2 restricted 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 publication classified category 2 restricted to another person knowing or having reason to believe that that other person intends to deliver or exhibit the publication to a minor. 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 publication classified category 2 restricted; or (b) cause or permit such a minor to sell a publication classified category 2 restricted. Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 12 months, or both. 16A. Sale or delivery of publications contrary to conditions If a publication is classified Unrestricted or category 1 restricted subject to a condition imposed under section 13A of the Commonwealth Act, a person must not sell or deliver the publication except in accordance with that condition. Penalty: Fine not exceeding 20 penalty units. 16B. Consumer advice for Unrestricted publications A person must not sell a publication classified Unrestricted in respect of which the Board has determined consumer advice under section 20(2) of the Commonwealth Act unless the consumer advice is displayed on the publication or the packaging of the publication. Penalty: Fine not exceeding 20 penalty units. 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) . . . . . . . . (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. 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 publication classified RC or cause or permit such a publication to be sold or delivered; or (b) exhibit, or cause or permit to be exhibited, a publication classified RC 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 publication classified RC 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. (3) If – (a) a publication is reclassified under section 22CH(4), 39 or 97A of the Commonwealth Act; or (b) the Board revokes a classification for a publication under section 22B(3) or 22CH(1) of that Act – it is sufficient compliance with this section for a period of 30 days after the decision to reclassify or revoke takes effect if the publication bears the determined markings applicable to the publication before that reclassification or revocation. PART 3 - Films Division 1 - Exhibition of films 20. Requirements for exhibiting film in public place (1) 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. (2) Subsection (1) is not contravened by reason only of the exhibition of a film – (a) under a title different from that under which it is classified if it is contained on one device that consists only of 2 or more classified films; or (b) with a modification referred to in section 20A, 21(2) or 21(3) of the Commonwealth Act. 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 18+ film not to be exhibited in public place A person must not exhibit in a public place a film classified RC or X 18+. Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both. 23. RC, X 18+, R 18+ or MA 15+ film not to be exhibited if visible from public place A person must not exhibit a film classified RC, X 18+, R 18+ or MA 15+ if the film can be seen from a public place. Penalty: – (a) in the case of a film classified R 18+ or MA 15+ – a fine not exceeding 20 penalty units; or (b) in the case of a film classified RC or X 18+ – a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both. 24. Unclassified RC, X 18+, R 18+ or MA 15+ 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 18+, R 18+ or MA 15+ 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 18+ or MA 15+ – 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 18+ – a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both. 25. RC, X 18+ or R 18+ 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 18+ or R 18+. Penalty: – (a) in the case of a film classified R 18+ – a fine not exceeding 20 penalty units; or (b) in the case of a film classified RC or X 18+ – 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 18+ or R 18+ 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 18+ or R 18+. Penalty: – (a) in the case of an unclassified film that would, if classified, be reasonably likely to be classified R 18+ – 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 18+ – 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 18+ or MA 15+ 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 18+ or MA 15+. Penalty: Fine not exceeding 20 penalty units. 28. R 18+ 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 18+. 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 18+ 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 18+; or (b) is unclassified but would, if classified, be reasonably likely to be classified R 18+. Penalty: Fine not exceeding 20 penalty units. 30. Minor not to attend exhibition of R 18+ film A minor who is 15 or older must not attend the exhibition in a public place of a film classified R 18+ knowing that the film is so classified. Penalty: Fine not exceeding 5 penalty units. 31. MA 15+ 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 15+ 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 18+ or RC – a fine not exceeding 100 penalty units; (b) if the film has been classified MA 15+ or R 18+ – a fine not exceeding 50 penalty units. 33. Classified film not to be sold or delivered under different title or in altered form (1) 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 15+ or R 18+ – a fine not exceeding 20 penalty units. (2) Subsection (1) is not contravened by reason only of the sale or delivery of a classified film – (a) under a title different from that under which it is classified if it is contained on one device that consists only of 2 or more classified films; or (b) with a modification referred to in section 20A, 21(2) or 21(3) of the Commonwealth Act. 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) a film is reclassified under section 22CH(4), 39 or 97A of the Commonwealth Act; or (b) the Board revokes a classification or consumer advice for a film under section 22B(3) or 22CH(1) of that Act – display of the determined markings and consumer advice applicable to the film before that reclassification or revocation is sufficient compliance with this section for a period of 30 days after the decision to reclassify or revoke takes effect. 36. RC or X 18+ film not to be sold or delivered A person must not – (a) sell or deliver a film classified RC or X 18+; or (b) cause or permit a film classified RC or X 18+ 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 18+ film not to be sold or delivered to minor (1) A person must not sell or deliver a film classified R 18+ to a minor. 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 15+ film not to be sold or delivered to minor under 15 (1) A person must not sell or deliver a film classified MA 15+ 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 18+ film A minor who is 15 or older must not buy a film classified R 18+ 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 Minister to review the film's classification. (2) The application is to be – (a) in writing; and (b) lodged with the Minister; and (c) 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) . . . . . . . . 41A. Review Committee (1) On receipt of an application under section 41 , the Minister must establish a Review Committee. (2) If the Minister considers that a classified film unduly emphasises matters of cruelty or violence, the Minister may establish a Review Committee. (3) The Review Committee is to consist of not less than 3 persons who in the opinion of the Minister have suitable knowledge, experience and qualifications to review the film's classification. (4) The members of the Review Committee are to be appointed by the Minister on such terms and conditions as the Minister determines. (5) The Review Committee must review the classification of the film. 42. Criteria for reviewing classification of film The Review Committee 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. Review Committee to make recommendation to Minister after review (1) Within 14 days after reviewing the classification of a film classified R 18+ the Review Committee 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 Review Committee 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 Review Committee 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 Review Committee 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) . . . . . . . . (3) The Minister must give notice of the making of the order to the person 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 If the Minister accepts a recommendation under section 43 (1) (b) or (2) (b) , the Minister must give notice of acceptance to the person who applied to have the relevant film's classification reviewed, that the Minister has accepted the recommendation of the Review Committee 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 (1) 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. (2) Subsection (1) is not contravened by reason only that the computer game that is, or is to be, sold, delivered or demonstrated has a modification referred to in section 20A, 21(2) or 21(3) of the Commonwealth Act. 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. (3A) A person must not make a computer game available for playing on a pay and play basis unless the determined markings relevant to the classification of the computer game and relevant consumer advice, if any, are displayed on the device used for playing the game. Penalty: Fine not exceeding 20 penalty units. (3B) If 2 or more computer games are available for playing on a device referred to in subsection (3A) , the determined markings and consumer advice to be displayed on the device are those relevant to the computer game with the highest classification under the Commonwealth Act. (4) If – (a) a computer game is reclassified under section 22CH(4) or 39 of the Commonwealth Act; or (b) the Board revokes a classification or consumer advice for a computer game under section 22B(3) or 22CH(1) of that Act – display of the determined markings and consumer advice applicable to the computer game before that reclassification or revocation is sufficient compliance with this section for a period of 30 days after the decision to reclassify or revoke 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, R 18+ 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, R 18+ or MA 15+; or (b) an unclassified computer game which would, if classified, be reasonably likely to be classified RC, R 18+ 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 (ab) in the case of a computer game classified R 18+ – a fine not exceeding 50 penalty units; or (b) in the case of a computer game classified MA 15+ – a fine not exceeding 20 penalty units. 54. RC or R 18+ 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 R 18+; or (b) is an unclassified computer game which would, if classified, be reasonably likely to be classified RC or R 18+. 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. 54A. R 18+ computer games not to be sold or delivered to minor under 18 (1) A person must not sell or deliver a computer game classified R18+ to a minor under 18. 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 the minor was 18 years or older. 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 (ba) if the advertisement was approved under section 29 of the Commonwealth Act and the approval is revoked under section 13(5) or 21A of that 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 publication classified RC; or (b) a publication classified category 2 restricted; or (c) a film classified RC or X 18+; or (d) an unclassified film, if the advertisement contravenes the Advertising Scheme; or (e) a computer game classified RC; or (f) an unclassified computer game, if the advertisement contravenes the Advertising Scheme. 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. Advertisement for classified film 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 classified film during a program for the exhibition of another classified 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: Column 1 Column 2 Item 1. G G 2. PG PG or G 3. M M, PG or G 4. MA 15+ MA 15+, M, PG or G 5. R 18+ R 18+, MA 15+, M, PG or G Exhibited film Advertised film Penalty: Fine not exceeding 20 penalty units. 59. Classified 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 classified film that is accompanied by an advertisement for another classified 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: Column 1 Column 2 Item 1. G G 2. PG PG or G 3. M M, PG or G 4. MA 15+ MA 15+, M, PG or G 5. R 18+ R 18+, MA 15+, M, PG or G Film sold Advertised film Penalty: Fine not exceeding 20 penalty units. 59A. Advertisement for unclassified film to be in accordance with Advertising Scheme (1) A person must not screen in a public place an advertisement for an unclassified film during a program for the exhibition of a classified film if the advertisement contravenes the Advertising Scheme. Penalty: Fine not exceeding 20 penalty units. (2) A person must not sell or deliver, or cause to be sold or delivered, a classified film that is accompanied by an advertisement for an unclassified film if the advertisement contravenes the Advertising Scheme. Penalty: Fine not exceeding 20 penalty units. 60. Classified computer game not to be sold, delivered or demonstrated with advertisement for computer game of higher classification A person must not sell, deliver or demonstrate, or cause or permit to be sold, delivered or demonstrated, a classified computer game that is accompanied by an advertisement for another classified 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: Column 1 Column 2 Item 1. G G 2. PG PG or G 3. M M, PG or G 4. MA 15+ MA 15+, M, PG or G 5. R 18+ R 18+, MA 15+, M, PG or G Computer game sold Advertised computer game Penalty: Fine not exceeding 20 penalty units. 60A. Advertisement for unclassified computer game to be in accordance with Advertising Scheme A person must not sell, deliver or demonstrate, or cause or permit to be sold, delivered or demonstrated, a classified computer game that is accompanied by an advertisement for an unclassified computer game if the advertisement contravenes the Advertising Scheme. 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) a publication, film or computer game is reclassified under section 22CH(4), 39 or 97A of the Commonwealth Act; or (b) the Board revokes a classification for a publication, film or computer game under section 22B(3) or 22CH(1) of that Act – publication of the determined markings applicable to the publication, film or computer game before that reclassification or revocation is sufficient compliance with subsection (2) for a period of 30 days after the decision to reclassify or revoke 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 publication classified category 1 restricted; 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 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 publication classified category 1 restricted 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) a publication, film or computer game is reclassified under section 22CH(4), 39 or 97A of the Commonwealth Act; or (b) the Board revokes a classification or consumer advice for a publication, film or computer game under section 22B(3) or 22CH(1) of that Act – display of the determined markings and consumer advice applicable to the publication, film or computer game before that reclassification or revocation is sufficient compliance with subsection (1) for a period of 30 days after the decision to reclassify or revoke takes effect. PART 6 - Call In Provisions 64. Calling in submittable publication for classification (1) If – (a) the Minister or Director has reasonable grounds to believe that a publication is a submittable publication; and (b) the publication is being published in Tasmania or the Minister or Director has reasonable grounds to believe that it will be published in Tasmania – the Minister or Director may, by notice given to the publisher of the publication, require the publisher to submit to the 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. 64A. Calling in films for classification (1) If – (a) the Minister or Director has reasonable grounds to believe that an unclassified film is not an exempt film; and (b) the film is being published in Tasmania or the Minister or Director has reasonable grounds to believe that it will be published in Tasmania – the Minister or Director may, by notice in writing given to the publisher of the film, require the publisher to submit an application for classification of the film. (2) The Minister or Director must cause notice of a decision under subsection (1) to be published in the Commonwealth Gazette. (3) A person to whom a notice under this section is given must, within 3 business days after receiving the notice, comply with the notice. Penalty: Fine not exceeding 50 penalty units. (4) It is a defence to a prosecution for an offence against subsection (3) to prove that the defendant did not intend – (a) to publish the film in Tasmania; or (b) to cause, authorise, permit or license the film to be published in Tasmania. 65. Calling in computer game for classification (1) If – (a) the Minister or 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 Minister or Director has reasonable grounds to believe that it will be published in Tasmania – the Minister or Director may, by notice given to the publisher of the game, require the publisher to submit to the Board an application for classification of the game. (1A) If – (a) the Minister or Director has reasonable grounds to believe that an unclassified computer game is not an exempt computer game; and (b) the computer game is being published in Tasmania, or the Minister or Director has reasonable grounds to believe that it will be published in Tasmania – the Minister or Director may, by notice in writing given to the publisher of the computer game, require the publisher to submit an application for classification of the computer 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. Board may call in advertisement (1) The Minister or Director may, by notice given to – (a) the publisher of a film that is being published in Tasmania, or that the Minister or 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 Minister or Director has reasonable grounds to believe will be published in Tasmania – require the publisher to submit to the 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. 66A. Calling in publication, film or computer game for reclassification (1) If – (a) the Board proposes to reclassify a publication, film or computer game under section 39 of the Commonwealth Act; and (b) the publisher of the publication, film or computer game resides in Tasmania or has an office in Tasmania – the Director or the Minister may, by notice in writing given to the publisher, require the publisher to submit a copy of the publication, film or computer game for the purpose of reclassifying it. (2) A person to whom a notice under this section 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 for an offence against subsection (2) to prove that the defendant did not have a copy of the publication, film or computer game. 66B. Obtaining copies for review (1) If – (a) an application is made for a review of a classification decision under the Commonwealth Act by a person who is not the original applicant for classification of the publication, film or computer game concerned; and (b) the Board or the Review Board does not have a copy of the publication, film or computer game and a copy is not available to it; and (c) the original applicant or the publisher of the publication, film or computer game resides in Tasmania or has an office in Tasmania – the Convenor or the Minister may, by notice in writing given to the original applicant or publisher, require the original applicant or publisher to make a copy of the publication, film or computer game available for the purpose of the review. (2) A person to whom a notice under this section 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 for an offence against subsection (2) to prove that the defendant did not have a copy of the publication, film or computer game. PART 7 - . . . . . . . . 67AA. . . . . . . . . 67. . . . . . . . . 68. . . . . . . . . 69. . . . . . . . . 70. . . . . . . . . PART 8 - Child Exploitation Material and Bestiality Products Unlawful 71. Interpretation of Part In this Part – access, in relation to material, includes the display of the material by an electronic medium or any other output of the material by an electronic medium; bestiality product means a publication, film or computer game that depicts in pictorial form bestiality; child means a person under the age of 18 years; child exploitation material means material that describes or depicts, in a way that a reasonable person would regard as being, in all the circumstances, offensive, a person who is or who appears to be under the age of 18 years – (a) engaged in sexual activity; or (b) in a sexual context; or (c) as the subject of torture, cruelty or abuse (whether or not in a sexual context); electronic medium means any thing that contains data from which text, images or sound can be generated; make includes produce, film, print, photograph and record; material includes any film, printed matter, electronic data and any other thing of any kind (including any computer image or other depiction); person includes part of a person. 72. Offence to make or reproduce bestiality product A person must not – (a) make or reproduce a bestiality product; or (b) cause or permit a bestiality product to be made or reproduced; or (c) be in any way concerned in the making and reproduction of a bestiality product. Penalty: Fine not exceeding 200 penalty units or imprisonment for a term not exceeding 2 years, or both. 72A. Offence to make or reproduce child exploitation material A person must not – (a) make or reproduce child exploitation material; or (b) cause or permit child exploitation material to be made or reproduced; or (c) be in any way involved in the making or reproduction of child exploitation material. Penalty: Fine not exceeding 300 penalty units or imprisonment for a term not exceeding 3 years, or both. 73. Offence to procure child to be involved in making child exploitation material A person must not procure or invite or attempt to procure a child to be involved in the making of child exploitation material. Penalty: Fine not exceeding 300 penalty units or imprisonment for a term not exceeding 3 years, or both. 73A. Offence to distribute child exploitation material (1) A person must not distribute, or do anything to facilitate the distribution of, child exploitation material. Penalty: Fine not exceeding 300 penalty units or imprisonment for a term not exceeding 3 years, or both. (2) In this section – distribute includes – (a) send, sell, deal, supply, exhibit, transmit or communicate child exploitation material to another person, or enter into an agreement or arrangement to do so; and (b) make child exploitation material available for access by another person, or enter into an agreement or arrangement to do so. 74. Offence to possess bestiality product A person must not have possession of – (a) . . . . . . . . (b) a bestiality product. Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 12 months, or both. 74A. Possession of child exploitation material A person must not –