| 17.09.05 | 2 from ROCCO RC Fatherhood Foundation. Rating Compliance Agreement. WOLF CREEK R18+ by RB. GTA: SA MA15+ Again. Big Brother Breach. Andrew Bartlett Speech. Andrea Coote Question. WA Censorship Bill. Eros Press Release. More |
| 17th September | Calvista
have been having a hard time lately with the Classification Board. Two
titles from Rocco Siffredi are the latest victims of the censors. ROCCO
RAVISHES IBIZA 2 and ROCCO:
TOP OF THE WORLD were both rated RC. A cut version of the latter title has
since been passed X18+.
****** The Fatherhood Foundation are yet another group of conservatives who are being taken seriously by those in power. Their campaign to have internet filters installed in public libraries has already been brought up in the Victorian Parliament. They are also pushing to have warning labels attached to Adult DVDs and magazines. Library porn anger. Herald-Sun 19.08.05 PUBLIC libraries that refuse to stop peddling internet pornography should have their funding cut, a federal MP has demanded. Victorian Labor MP Anthony Byrne said a recent survey had revealed that most public libraries across Melbourne had easily accessible internet pornography, which could be downloaded by adults or children."The purpose of libraries is not to view pornography but to educate and nourish the people who use them," he said. "I think parents would be incredibly disturbed to know how easily porn can be accessed in public libraries without their knowledge." Push for warnings on porn material. Herald-Sun 29.08.05 PRO-family groups and conservative and Christian MPs have joined forces to push for compulsory health warnings on sexually explicit DVDs and magazines. The activists, who boast the support of federal Employment Minister Kevin Andrews, want cigarette-pack-style warning labels placed on DVDs and magazines containing R-rated sex scenes or images."This is sexually explicit material which might lead to sex-addiction and relationship problems," is one tag proposed by the Fatherhood Foundation, a conservative group opposed to porn and prostitution. Asked about the foundation's proposal, a spokesman for Mr Andrews said labelling R-rated material was "certainly something worth looking at". ****** Following on from their August 14th Media
Release, the OFLC have now came to agreement with the cinema industry
about better enforcing the guidelines. Such a quick response obviously has
nothing to do with fact that Steve Fielding of the Family First Party
brought it up in the Senate. Cinema industry and Government regulator agree on initiatives to ensure families are better informed At a joint meeting today, the cinema industry and the Office of Film and Literature Classification have committed to work closely together to ensure that families have access to clear, correct, easy-to-find classification information about the films they might be choosing to see at the cinema. “The OFLC has worked hard to devise a system that responsibly informs parents and other cinema-goers about the classification and the content of the films they can choose to see at the cinema,” said Cinema Industry spokesperson and Chairman of the Motion Picture Distributors Association of Australia, Joel Pearlman today. “We in the cinema industry take the responsibility of providing this information very seriously in the interests of providing the best possible cinema experience to consumers, particularly those with children,” Mr Pearlman said. Cinemas are required to feature classification information on advertisements for films in newspaper and magazine advertisements, posters, flyers, at box-office listings, on websites and before trailers at the cinema and on television. The meeting was requested by the cinema industry following a recent report by the OFLC about classification compliance by cinemas across Sydney. It revealed that the industry was still struggling to incorporate these requirements into all of their advertising. “Given the commitment the Australian Government has to protecting children from material that could be harmful or upsetting to them, I am heartened by the seriousness with which the cinema industry has responded to the Snapshot report,” said Director of the OFLC, Des Clark. “I was also delighted by the interest expressed by film distributors and exhibitors in working with the OFLC on best practice classification strategies,” Mr Clark said. Both the MPDAA and the OFLC agreed that it was preferable for both organisations to achieve a clear mutual understanding about how compliance with classification requirements will be achieved so that legal enforcement of the provisions would not be required. The Australian Independent Distributors Association, Independent Cinema Association of Australia, Greater Union, Hoyts, Village, Dendy, Palace and other independent distributors were also represented at the meeting. Media contacts Brinsley Marlay (OFLC) 02 9289 7187 or 0438 889 759 Brendan Gutsell (MPDAA) 02 9265 0260 or 0407 614 922 Background: The Classification Board makes classification decisions about films, computer games and publications. All films, computer games and submittable publications must be classified by the Classification Board before they can be sold or hired in Australia. The Classification Review Board makes classification decisions when a valid application has been made for a review of a film, computer game or publication for which the Classification Board has already made a decision. The Office of Film and Literature Classification provides administrative support to both the Classification Board and the Classification Review Board. The OFLC is responsible for policy initiatives in relation to classification matters and the legislative framework within which the Classification Board and the Classification Review Board work. ****** Roadshow Films have failed in their attempt to get the R18+ rating of WOLF CREEK lowered to MA15+. Once again the Review Board has deemed it necessary to change the consumer advice. It has gone from 'High Level Violence, Coarse Language, Adult Themes' to 'High Level Realistic Violence, Strong Coarse Language'. Now, I feel so much better informed. Thanks Review Board! Australian Government Review announced for the film Wolf Creek The Classification Review Board has received an application to review the classification for the Australian film, Wolf Creek. Wolf Creek was classified R 18+ with the consumer advice, “High level violence, Coarse language, Adult themes”, by the Classification Board on 24 August 2005. The Classification Review Board will meet on Wednesday 14 September 2005 to consider the application. The Classification Review Board’s decision and reasons for its decision will appear on the OFLC website once the review has been finalised. The Classification Review Board is an independent merits review body. Meeting in camera, it makes a fresh classification decision upon receipt of an application for review. The Classification Review Board decision takes the place of the original decision made by the Classification Board. *** What a shocker: film hit with horror rating. SMH 11.09.05 An Australian film based loosely on the disappearance of Peter Falconio and the Ivan Milat murders has been given an R rating by the Office of Film and Literature Classification ahead of its November release. But Roadshow Films, the local distributor of Wolf Creek, has appealed against the rating decision so the horror film can be seen by a younger audience. A spokesman for the OFLC has confirmed a review of the R rating will take place on Wednesday. Roadshow Films is likely to appeal for an MA15+ rating (one step below the 18+ R rating) so the film can be seen by a segment of the teenage audience. *** Australian Government Wolf Creek classified R 18+ upon review A 3-member panel of the Classification Review Board has determined, in a unanimous decision, that the Australian film, Wolf Creek, is classified R 18+ with the consumer advice, “High level realistic violence, Strong coarse language.” “Unlike typical horror movies, Wolf Creek does not employ the usual tension-releasing devices, nor the stylized approaches to depictions of violence, instead striving for a tone of realism that takes it out of the realm of fantasy,” said Classification Review Board Deputy Convenor, The Hon Trevor Griffin. “This very realistic tone results in a film of high impact.” Mr Griffin also said that in the opinion of the Classification Review Board, the level of realism created by the documentary-style approach heightens the impact of the violence, which is frequent and, in some scenes, prolonged. R 18+ is a restricted classification. Persons aged under 18 years cannot be admitted to films classified R 18+. The Classification Review Board convened today in response to an application from the distributor, Roadshow Films, to review the R 18+ classification of Wolf Creek made by the Classification Board on 24 August 2005. In reviewing the classification, the Classification Review Board worked within the framework of the National Classification Scheme, applying the provisions of the Classification (Publications, Films and Computer Games) Act 1995, the National Classification Code and the Guidelines for the Classification of Films and Computer Games. The Classification Review Board is an independent merits review body. Meeting in camera, it makes a fresh classification decision upon receipt of an application for review. This Classification Review Board decision takes the place of the original decision made by the Classification Board. The Classification Review Board’s reasons for this decision will appear on the OFLC website when finalized. ****** Grand Theft Auto: San Andreas is set to be back on the shelves after the Classification Board passed it MA15+(Strong Violence, Strong Coarse Language). ****** The complaints made against BIG BROTHER back in June have resulted in the ACMA finding that C10 breached the code of practice. Australian Government ACMA finds Big Brother Uncut in breach of code The Australian Communications and Media Authority has found Network Ten licensees in Adelaide, Brisbane, Melbourne, Perth and Sydney breached the Commercial Television Industry Code of Practice for broadcasts of Big Brother Uncut. Breaches were found in two of the three episodes of the program investigated by ACMA. The breaches were of clause 2.4 of the code, which requires that material be classified in accordance with the Television Classification Guidelines in the code. Big Brother Uncut is classified MA, meaning it is suitable for viewing only by persons aged 15 years and over and may only be screened after 9 pm. The investigation found material was screened that was in excess of the MA classification. Other material broadcast in Big Brother Uncut was considered to approach the limit of content permitted at the MA classification level. ‘MA classified material is the strongest permitted on free-to-air television. Because of this, broadcasters are obliged to exercise particular care in selecting material for this category,’ said Lyn Maddock, Acting ACMA Chair. ‘ACMA has found that on two of the occasions it investigated, Network Ten did not take sufficient care in selecting material for Big Brother Uncut.’ One breach, in the episode broadcast on 30 May 2005, involved what ACMA considered a gratuitous and demeaning portrayal of nudity. This scene depicted a male participant in the program massaging a female participant’s shoulders. The female was unaware that the male’s penis was exposed and near the back of her head. The other breach, in the 13 June 2005 episode, was for very coarse language that was not suitable for persons aged 15 years or over. A group of males composed a song containing references to fetishistic and degrading sexual behaviour. The impact of the language was such that it was not considered suitable for 15 year olds. ACMA is aware that Network Ten has taken steps to review the program’s production process in response to criticism about some of the behaviour of male participants in the 2005 series. Network Ten has offered to advise ACMA of the outcomes of that review including any new procedures that may be implemented as a result. ‘While welcoming the steps already taken by the licensee, ACMA will further discuss appropriate measures with Network Ten. Action requested of Network Ten by ACMA will be geared towards ensuring future breaches of the MA classification provisions do not occur,’ said Lyn Maddock. If Network Ten fails to provide appropriate undertakings, ACMA will consider imposing a licence condition on the Network Ten licensees. The full investigation report will be made available on the ACMA website following consideration of any comments on the text of the report by Network Ten, as required by law. Media contact: Donald Robertson ACMA Media Manager on (02) 9334 7980. BACKGROUNDER The investigation The Australian Broadcasting Authority (ABA) initiated an investigation into three episodes of Big Brother Uncut on 23 June 2005. The ABA made its decision to investigate in response to considerable public comment on the contents of the program. The three episodes of the program examined were broadcast on 30 May 2005, 6 June 2005 and 13 June 2005. The Australian Communications and Media Authority took over the role and responsibilities of the ABA on 1 July 2005. The licensees that are the subject of the investigation are: Network Ten (Adelaide) Pty Limited, Network Ten (Brisbane) Pty Limited, Network Ten (Melbourne) Pty Limited, Network Ten (Perth) Pty Limited and Network Ten (Sydney) Pty Limited. The investigation report is currently being considered by the licensees under section 180 of the Broadcasting Services Act 1992. Section 180 requires that persons likely to be adversely affected by a report be given an opportunity to make comment prior to publication. The Commercial Television Industry Code of Practice The Commercial Television Industry Code of Practice 2004 is the code of practice developed by the commercial television industry and registered by ACMA. Licensees are expected to comply fully with the code. The code contains the Television Classification Guidelines, which set out the classification categories permitted on commercial free-to-air television, and define the type of material that is suitable for each category. MA is the strongest category of material that is permitted on commercial television (apart from material containing violent content, for which a different classification applies). For material to be suitable for the MA classification, it must be suitable for viewing by persons aged 15. The relevant MA criteria are: The Mature Audience (MA) Classification 5. Material classified MA is suitable for viewing only by persons aged 15 years or over because of the intensity and/or frequency of sexual depictions, or coarse language, adult themes or drug use.. . . 5.2 Sex and nudity: Visual depiction of intimate sexual behaviour (which may only be discreetly implied or discreetly simulated) or of nudity only where relevant to the story line or program context. However, a program or program segment will not be acceptable where the subject matter serves largely or wholly as a vehicle for gratuitous, exploitative or demeaning portrayal of sexual behaviour or nudity. Exploitative or non-consenting sexual relations must not be depicted as desirable. 5.3 Language: The use of very coarse language must be appropriate to the story line or program context and not overly frequent or impactful.… 5.6 Adult themes: The treatment of strong themes should be justified by the story line or program context. Clause 2.4 of the code requires that material for broadcast be classified in accordance with these guidelines: 2.4 All other material for broadcast: Subject to Clauses 2.3 and 2.4.1, all other material for broadcast must be classified according to the Television Classification Guidelines (set out in Appendix 4) or, where applicable, the stricter requirements of Section 3: Program Promotions and Section 6: Classification and Placement of Commercials.
The program Big Brother is a reality television program that was broadcast by Network Ten licensees. The program presents a group of housemates sharing a house for approximately three months, and competing for a cash prize. Big Brother Uncut is an MA classified version of the program, and contains content that would not be suitable for broadcast in other time periods. ACMA enforcement powers for code breaches Having found that a breach of a code has occurred, ACMA can request an informal undertaking from a licensee that certain steps will be taken to ensure no future breach of a particular code provision occurs. A wide range of possible undertakings could be requested. ACMA may also decide to impose an additional condition on a licence. Additional licence conditions may be geared to corrective action in respect of a breach, or reducing the likelihood of future breaches. The scope for a licence condition is very broad. Compliance with the code itself could be made a licence condition. The imposition of a licence condition invokes some of ACMA’s stronger powers of sanction. Failure to comply with a licence condition allows ACMA to issue a notice directing compliance with the condition. Failure to comply with a notice means ACMA can suspend or cancel a licence, or refer the matter to the DPP for prosecution and possible imposition of a fine by the Federal Court. *** On a related note, here is a speech made by the Democrats Senator Andrew Bartlett. ADJOURNMENT:
Television: Program Content Television: Program Content Senator BARTLETT (Queensland) (7.38 p.m.)—Tonight I want to speak about a general topic that has been covered a few times both in the Senate and in the other place in this parliament, and that is the issue of content on television and the appropriateness of certain types of content at various times. We have had some speeches made in the parliament and there have also been comments made in the general community about the appropriateness of content on Big Brother and whether something should be done about that. For those of you who are not aware, Big Brother is a television show. I will get to that in a moment but I would like to firstly highlight some comments made by the head of the Australian Children’s Television Foundation, Janet Holmes a Court. She made some comments which I very much concur with. I recognise that any attempt to determine what type of content should be on television at particular hours is always going to be in part a matter of opinion. But, if you are looking at what is viewed by children, I do think there is a wider recognition and agreement amongst the community that we need to be aware of what sort of content may be readily available to children and whether or not it is appropriate or potentially harmful. Ms Holmes a Court was particularly talking about the need to consider restricting the amount of violent or distressing news images in the early evening. This is particularly apposite at the moment, with some of the awful images coming from New Orleans and other parts of the USA. But of course we all know that, sadly, pretty much every night on the television there will be fairly distressing images of death, destruction or violence of some sort of another in some part of the world. Frankly, I very much agree with the need to focus on this particular aspect. Whilst I understand the concern of some others who are a bit worried about naked breasts and bottoms on Big Brother late at night, I think there is a much bigger problem and a much bigger genuine concern about potentially very distressing images—images that I sometimes find quite distressing, let alone wondering how they might appear to young children—that appear not only on the 6 pm news but sometimes on news updates throughout the afternoon, the midday news and at all sorts of times of the day. It is not just a matter of say that more parental guidance and appropriate guardianship should be applied, though that might be arguable if you are talking about 8.30 or 9.30 at night. My daughter seems to want to stay up until midnight even though she is only three, so it gets a bit hard—but that is my problem. But I think that it is reasonable to assume that people have the television on in the house and you can expect that children of any age are likely to be around, and it is unrealistic to expect parents to have to be perpetually keeping half an eye on what might be flashing on the television. I am not saying that these issues should not be reported; I am simply talking about disturbing images, violent or distressing news images, in the early evening or other hours of the day. I would like to draw attention to the call by Janet Holmes a Court in her capacity as head of the Australian Children’s Television Foundation, because there are, as she says, horrendous images on the news all the time and there is no attempt in Australia to modify it when young people may be watching. I agree with her that we should look at it. I am not putting forward a specific proposal or a specific set of criteria; I would simply call on the government to take this comment on board. Indeed, I think the relevant minister is Senator Coonan, who is in the chamber at the moment. I am sure she is listening closely to everything I say, as she always does. I would ask her to take this comment on board, as she has done in considering some of the comments about Big Brother. With regard to some of the comments that others have made about Big Brother, I would have to say that, if you are looking at programs at 9.30 or 10.30 at night, I am not so convinced that images of naked breasts and bottoms or even stupid, inane or offensive behaviour by adults is necessarily something that we should be rushing to ban or something that should be able to be dragged off the TV screens. I do think there is an argument that people can decide for themselves what they want to watch and, if they want to watch that, it is up to them—and I say that as somebody who has not watched Big Brother for a while. I must say that I really could not stomach watching Big Brother anymore after the treatment that poor old Merlin Luck got when he was evicted. He decided to come out and use his 15 minutes of fame to make a political statement about refugees. For his trouble he was roundly slagged off by the host of Big Brother not just on that night but indeed for weeks to come. He was regularly ridiculed. I recall seeing him being ridiculed by the host and by Rove on Rove Live a few weeks later for being such an idiot as to waste his moment in the sun by making a statement about refugees. I thought it was pretty tragic, frankly, that someone who wanted to express an opinion, as opposed to coming out with the sort of nonsense that people normally say when they leave the Big Brother house, should be ridiculed. But that is for them to do, of course, and it is for others to decide whether or not they want to watch that show. I have to also say that, whilst I do not advocate censorship with regard to violent images late at night, I personally believe that it is violence and distressing images of violence and murder and the like that are much more potentially problematic than what is on so-called reality TV. Quite clearly what is on Big Brother is not reality. You can do things inside the Big Brother house, get lots of headlines and lots of controversy, and it gives us an opportunity to discuss amongst the community what sorts of behaviour are appropriate or not. If you try some of those behaviours outside in the real world, as opposed to the so-called reality TV world, then you can find yourself in a lot of trouble, as I think one of the Big Brother contestants found when they allegedly did something out in the street in North Queensland and found themselves arrested for their trouble. I think some of the crime shows and others that are on late at night have images that are far more problematic in terms of violence and the distressing and confronting nature of them. If anything were to be looked at, I would have to say that those are a much bigger problem than young people being like some young people tend to be—so I am told, not been so young anymore. I think the bigger concern is not what is on late night TV but what is on during normal hours early in the evening. If you want to talk about so-called pornographic images, as some people have described Big Brother, I have to say—once again showing my age—that some of the music clips on the video shows on Saturday morning TV are much closer to virtual pornography than I am comfortable with at a time when children are watching them. I want to
emphasise that the issue of much greater concern is violence, death and
destruction and those sorts of much more confronting images,
particularly for young children. I think it is children that we need to
be particularly concerned about rather than adults. It is the comments
of people like the Children’s Television Foundation that we should be
taking heed of. I urge the relevant minister to take those views into
account. Indeed, I urge the news networks to give a bit more thought to
this. It is preferable not to bring in some hard and fast regulation if
we can get a generally accepted practice beforehand. The occasional
disclaimers such as ‘images contained in this news report may be
distressing’ could probably be used rather more often. Or perhaps a
little more often they could think about not using some of the more
distressing images. ****** The following was asked in the Victorian Legislative Council by Andrea Coote from the Liberal Party. Title Arts: film and multimedia -- crude
violence 6 September 2005 COUNCIL Page 699 Arts: film and multimedia -- crude violence 4847. THE HON. ANDREA COOTE -- To ask the
Minister for Sport and Recreation (for the Minister for the Arts): What
regulations has the Minister for the Arts put in place to ensure that
crude violence has been reduced in movies and multimedia in Victoria. ANSWER: ****** The WA CENSORSHIP AMENDMENT BILL 2005 has now moved from the Legislative Assembly to the Legislative Council. House: Legislative Assembly CENSORSHIP AMENDMENT BILL 2005 Introduction and First Reading Bill introduced, on motion by Mr J.B. D’Orazio (Minister for Justice), and read a first time. Explanatory memorandum presented by the minister. Second Reading MR J.B. D’ORAZIO (Ballajura - Minister for Justice) [1.23 pm]: I move - That the bill be now read a second time. The Western Australian Censorship Amendment Act 2003, which came into effect on 1 July 2003, made Western Australia a full participant in the national classification scheme. Western Australia’s legislation is now consistent with that of other states and territories. Importantly, as a result of these changes, the state is no longer involved in the censorship of products, and the purpose of its Censorship Act 1996 now mainly relates to the enforcement of classification decisions. Following on from these important changes to the act, it is now proposed to change the name of the legislation to the Classification (Publications, Films and Computer Games) Enforcement Act, so that the name better reflects the purpose of the act. This name is consistent with the names of the equivalent legislation in other states, particularly Victoria’s Classification (Publications, Films and Computer Games) (Enforcement) Act 1995, New South Wales’ Classification (Publications, Films and Computer Games) Enforcement Act 1995 and Tasmania’s Classification (Publications, Films and Computer Games) Enforcement Act 1995. The change to the name of the legislation was foreshadowed when the 2003 amendment act was being debated in Parliament. The Western Australian Censorship Amendment Act 2003 also made a number of changes to the legislation to assist the Western Australia Police Service to enforce the legislation. However, despite the above changes, the Western Australia Police Service is still experiencing difficulties with certain forfeiture, evidentiary and infringement notice provisions contained in the Western Australian Censorship Act 1996. Members are aware that the government is committed to assisting the Police Service to crack down on the availability of child pornography, and to improve the efficacy of the enforcement provisions in the Western Australian Censorship Act 1996. I will now outline the measures in this bill that will address the problems identified by the Police Service in relation to the investigation of child pornography. The bill also contains the necessary amendments to evidentiary certificates and infringement notices, which will further assist the Police Service in its enforcement of the legislation. Child pornography - forfeiture provisions: On receiving information indicating that a person may possess child pornography on a computer system, the Western Australia Police Service child abuse unit generally takes out a search warrant under section 711 of the Criminal Code to investigate the disclosure. The police officers search the suspect’s premises and seize computers and any other property that may provide evidence. Upon the seizure of a computer, it is forensically analysed by the computer crime investigation unit of the Police Service. The unit searches the hard drive and gathers any images and evidence related to the alleged offence. It is usually not possible to charge the suspect with an offence relating to child pornography until the computer crime unit has completed its analysis. Subsection 117(2a) of the Western Australian Censorship Act 1996 provides for the forfeiture of films classified “refused classification” - RC - or X, and publications or computer games classified RC, or child pornography, seized under this part, if no person has been charged after 12 months. However, although this subsection applies to child pornography, it does not apply to material highly likely to be, or contain, child pornography. Moreover, it applies only to material seized under this part but not under a Criminal Code search warrant. Section 112(2) of the Western Australian Censorship Act 1996, which deals with entry, inspection and seizure, relates only to businesses and cannot be used for private premises. Although it was intended that subsection 117(2a) would apply to child pornography, the Police Service is required to comply with subsection 117(3) of the Western Australian Censorship Act 1996. However, this subsection requires the police to apply for a summons within 60 days of seizure. Moreover, under subsection 117(6) of the Censorship Act 1996, the court has the option of forfeiting the seized thing to the Crown - if an offence has been committed - or ordering that the thing be returned to the person who possessed it prior to seizure. It does not provide the court with the option of returning the thing to the police to enable the investigation to be completed. As it typically takes more than 60 days for a computer to be analysed, subsections 117(3) and (6) hinder police investigations of child pornography. To facilitate the investigation and prosecution of persons who possess child pornography on computers, this bill will overcome the problems being experienced by the Western Australia Police Service regarding forfeiture. Evidentiary provisions: Section 141 of the Western Australian Censorship Act 1996 provides that the Director or Deputy Director of the commonwealth Office of Film and Literature Classification can issue a certificate relating to the classification of a film, publication or computer game. Under section 87 of the commonwealth Classification (Publications, Films and Computer Games) Act 1995, the Director of the commonwealth Office of Film and Literature Classification can issue evidentiary certificates regarding actions taken or not taken under that act. However, courts in both Victoria and Western Australia have disallowed such evidentiary certificates as evidence to prove that a film had been classified at the time of seizure. In January 2003, a Western Australian magistrate held that under section 141 of the Western Australian Censorship Act 1996, although a section 87 certificate could be used to prove that a film was classified on the date the certificate was issued, it could not be used to prove that a film was classified on the date of the seizure or alleged contravention. This bill amends the Western Australian Censorship Act so that section 87 certificates issued by the Director of the commonwealth Office of Film and Literature Classification can be accepted into evidence in relation to the classification of films, publications and computer games at the time of the alleged offence. Infringement notices: Section 117D of the act provides that a member of the Police Force or a designated person can issue an infringement notice to a person who has committed a prescribed offence under the act. At this stage, it is not intended for any person other than a police officer to be able to issue an infringement notice. Unlike other statutes, for example the Road Traffic Act 1974, the act does not currently enable a police officer to extend the period of payment for an infringement notice or allow a police officer - that is, a person who can issue an infringement notice - to withdraw an infringement notice. This bill amends the act to enable police officers authorised by the Commissioner of Police to extend the period of payment for an infringement notice or withdraw an infringement notice. New classification categories - films and computer games: As I mentioned, Western Australia is a full participant in the National Classification Scheme, which commenced in January 1996. Under this scheme, the commonwealth Office of Film and Literature Classification classifies publications, films and computer games pursuant to the Classification (Publications, Films and Computer Games) Act 1995, which is a commonwealth act. Western Australia, in conjunction with the other states and territories, adopts commonwealth classification decisions. Those decisions are enforced under the Western Australian Censorship Act 1996. The commonwealth act sets out the classification categories for publications, films and computer games. On 26 May 2005, the classification categories for films and computer games in the commonwealth act were amended to reflect the new combined classification categories for these articles. The new combined classification categories for films and computer games now cited in the commonwealth act are G, PG, M, MA15+, R18+, X18+ and RC - Refused Classification. The use of combined classifications for films and computer games, based on the current classifications for films, will create simple and well-known classification bands for the community and assist parents in determining suitable material for their children. It will also create a more effective distinction between those classification categories that are advisory in nature - G, PG, and M - and those to which legally enforceable restrictions apply - MA15+, R18+ and X18+. This distinction will be achieved by the removal of age references from the unrestricted classification categories and the use of age references for the restricted classification categories only. Importantly, while the bill renames the classification categories, it does not relax the content of material that is permitted within each classification, nor does it introduce an R classification for computer games. The Western Australian Censorship Act 1996 refers to the previous separate classification categories for films and computer games. The classification categories for films in this legislation are G, PG, M, MA, R, X and RC. Computer games classification categories are G, G8+, M15+, MA15+ and RC. This means that the new classification categories in the commonwealth act are different from those in the Censorship Act 1996 and this will compromise the ability of the Western Australia Police Service to bring a successful prosecution in regard to films and computer games. This bill amends the Western Australian legislation to incorporate the new combined classification categories for films and computer games so that they will be the same as those referred to in the commonwealth act. As it was not possible to amend the Western Australian Censorship Act 1996 by 26 May 2005, appropriate transitional provisions have been drafted in the bill so that the new combined classification categories for films and computer games are deemed to apply from 26 May 2005 after enactment of this legislation. I commend the bill to the house. Debate adjourned, on motion by Dr S.C. Thomas. *** House: Legislative Assembly CENSORSHIP AMENDMENT BILL 2005 Second Reading Resumed from 29 June. MR R.F. JOHNSON (Hillarys) [1.06 pm]: I am very happy to lead the debate for the opposition on the Censorship Amendment Bill 2005. This legislation is a case of better late than never, but we have come to expect that from the government, which cannot seem to get its act together. It is important to place on record that this bill is before the house now because of the bill that the Leader of the Opposition introduced to address the loopholes in the legislation brought forward by the Minister for Police and Emergency Services; that is, the Community Protection (Offender Reporting) Act 2004. I apologise, but I have spilled my water. I now have a wet and soggy bill - a bit like the government. This bill will rectify those loopholes. I reiterate that that legislation was introduced last year. The Minister for Police and Emergency Services obviously was not doing her job properly, because she was unaware that schedule 2, class 2 offences, of the Community Protection (Offender Reporting) Act 2004 referred to an act that does not exist. This was picked up not by the government, but by the opposition. The reason the Leader of the Opposition brought in a private member’s bill was to try to address that loophole and to ensure that the name of every sex offender went on the sex offenders register. That is the purpose of the bill. It is not the fault of the Minister for Justice; it was not his bill, but a bill introduced by the Minister for Police and Emergency Services. For all the snide remarks the Minister for Police and Emergency Services directs at me - I can take it because I have broad shoulders - this bill addresses the haphazard way in which she introduced the legislation to which I have referred. It was important to mention that. Let us look at the sequence of events. I will refer to another piece of legislation because it is referred to in the main bill. The purpose of the Community Protection (Offender Reporting) Act is - . . . to require certain offenders who commit sexual or certain other serious offences to keep police informed of their whereabouts and other personal details for a period of time to reduce the likelihood that they will re-offend and to facilitate the investigation and prosecution of any future offences that they may commit, to enable courts to make orders prohibiting certain offenders from engaging in specified conduct . . . The Censorship Amendment Bill deals with two main areas. To a certain extent, the first is a housekeeping activity dealing with films, videos and computer games to ensure that they are correctly classified. This bill reflects the national scheme. We do not have a problem with that. The opposition will be supporting this bill. This bill will address what we on this side of the house believe are more appropriate classifications for some of these dreadful films, videos and computer games that should not be seen by children. At the end of the day, charges will be able to be laid against people who abuse these clauses dealing with the classification of films, videos, DVDs and computer games, and we support that completely. Some people may say that the penalties are not harsh enough, but that is something we can debate during consideration in detail. Another important area of the bill addresses the loophole that the government created in the previous legislation that it introduced, and that is charges relating to the investigation of child pornography. To make the previous legislation more effective, this bill simply renames the Censorship Act 1996 to the Classification (Publication, Films and Computer Games) Enforcement Act 1996. That is just a different name, but it makes the previous legislation more sensible and relevant. It does not matter what this bill is called; it is what the bill does that counts. Almost every person in this house wants to ensure that people who download, store or distribute child pornography face the harshest punishments that this Parliament can lay down. Mr Speaker, as you are probably aware, in the past few weeks or months a lot of my time has been spent tracking down paedophiles who have been let out of our prisons very early - some, five years into an 11-year sentence, and, others, less than eight years into a 15-year sentence. I have spent a lot of time doing that because I feel so strongly about these people who commit crimes against children. I believe that anyone who downloads child pornography is a prime candidate for committing the crime of paedophilia. Those people are not downloading those images just to view them; that information will instil in their warped minds a feeling to act out the dreadful images that they see. I must be honest and say that I have never seen a pornographic image of a child or a sex photo or anything like that, and I do not want to; I think it might make me sick. However, I know they exist. I know there are a number of sick people in our society who get pleasure from doing this sort of thing. I do not know whether the member for Riverton, or whoever he is, is smiling at what I am saying or something else. Mr M.P. Whitely: Something else; let us not go there. Mr R.F. JOHNSON: That is fine, because I think the member would share my views. Mr M.P. Whitely: Of course. Mr R.F. JOHNSON: I am pleased to hear that. I think every member will share those views. At the end of the day, we must think of what sort of gratification these people get from doing this sort of thing. This does not happen only in Western Australia and Australia; it is worldwide. Some dreadful acts have taken place, particularly in some eastern European countries, where children have been not only sexually abused but also violently abused by people who may do it for money. I do not know, but if they did not have customers they would not do it because they would not make any money out of it. I have read quite a bit about this, but I have never seen a picture of a child being abused sexually or violently. Occasionally I get unsolicited e-mails. This is something that the minister needs to look into. As the minister is in charge of censorship, he should look into this issue, because occasionally I get e-mails on my laptop from all sorts of weird and wonderful people. Ms S.E. Walker interjected. Mr R.F. JOHNSON: I do not know where they come from. Some of the people sending them must feel I have a deficiency in an appendage, because they are advertising all sorts of things that they say will make my life more wonderful. That sort of crap - if I may call it that - just gets deleted anyway. Occasionally these other e-mails will come through on my computer. I am going to ask someone in the Police Service what action can be taken and whether the sender of these e-mails, with their attachments, can be located. I received one the other day - I did not open the attachment, not because I am worried about viruses but because I have no desire to see the sorts of things that were being advertised as being depicted on the attachment - but I did not know what it was about from what was said on the bar. One does not always know what the e-mail is about from the initial message that one gets on the one liner. The ACTING SPEAKER (Mr A.P. O’Gorman): Do you mean the subject line? Mr R.F. JOHNSON: Yes. There is not always a subject line. It is just listed as an important message or something and I have to think whether or not to open it. I usually open the e-mails I receive but I never open an attachment unless I know where it has come from or I have a reason to open it. On an e-mail I received recently there was nothing in the subject line, but when I opened the e-mail it told me to go to a particular site. The web site was in blue, and if I clicked on it I was informed that it would open up some sort of Pandora’s box. I did not go to that web site, but what it said to invite me to go to that web site I found absolutely distasteful and disgusting. I cannot find enough adjectives to explain how I felt about it. It was about young teenage girls. These people produce these dreadful videos somewhere in the world - I do not know where they come from; they could be home grown for all I know - and send them through e-mails for people with warped minds to open. Plenty of people will open them. Whether they do anything after or not, I do not know. We need to find out where those e-mails are coming from. The minister responsible for censorship has a duty to do all he can to prevent those sorts of e-mails, with their attachments, from coming through. The minister may need to work with the police on that issue. I am flagging that matter with the minister today, because as the minister responsible for censorship, he should ensure that censorship is put in place so that decent people do not receive these types of horrific e-mails and attachments depicting the sort of child pornography that seems to be rife throughout the world. When the minister responds at the end of the second reading debate, I hope he will give a commitment to do something about that. I do not have my computer here today, but I am happy to show the minister those e-mails. Although I have deleted them, they are probably still in the deleted box. If the minister’s department or the Police Service can find out the country in which the e-mail was initiated and the owner of that e-mail address, we can do something about it in Western Australia even if its origin is overseas. If I am getting those e-mails, I would say that other members are getting them too. I am sure they are not just picking me out. Ms K. Hodson-Thomas: I am getting them. Mr R.F. JOHNSON: The member for Carine is getting them as well. I suggest that most members get those sorts of e-mails. I opened one once, because it gave the wrong impression. It was not child pornography; I think it was advertising some possible brides in Russia. I opened it by mistake, and it contained pictures of different Russian women, although they were not pornographic; they were quite pleasant photographs, from what I saw. However, this is obviously part of an international market. I do not know what is behind those sorts of things, and whether they are genuine or not, but they are the sorts of e-mails that everybody is getting now. Anyone with an e-mail account will be getting these sorts of messages with those sorts of attachments. As much as I am sure that these Russian ladies are lovely and would probably make good wives, I do not want details of them coming through my e-mail address. I prefer to keep things that I am interested in on my address. My wife would never forgive me if I responded to one of those e-mails - not that I ever would! The most important part of this, however, is the child pornography part, and that is what I want the minister to look at. For the benefit of this Parliament and for my benefit as well, at the consideration in detail stage I would like an explanation of some clauses of the bill. I understand fully the classifications and the reasons for reclassifying them, but we need to know about some of the other areas in this bill because they are very important. We will want to discuss the penalties for people abusing these provisions. I want to be assured that even video shops and some of the seedier little cinemas cannot abuse the classification system. We had a briefing yesterday with advisers from the minister’s department. I appreciate that briefing and, along with my colleagues who were able to attend, found it very useful indeed. Child pornography is a class 2 offence under the Community Protection (Offender Reporting) Act 2004. I understand that, although some people think it should be a class 1 offence. A person convicted of a class 2 offence must be listed on the sex offender register for eight years. Some people would say that such people should be on the register for a lot longer than eight years. As I understand it, offenders must report to the commissioner at least once every year. I suppose it is down to the commissioner of the day to decide whether that person should be reporting more frequently than that. I understand from the briefing we had yesterday that if the commissioner wants an offender to report more frequently, then he must do so. For a class 1 offence, people are listed on the register for 15 years and must report all personal details. They must report where they are residing - if they move house they must report that to the commissioner - where they are working, and the registration number and make of the car they drive. If they go on holidays or move interstate, they must report it. This information is important, otherwise the sex offender register will be out of date. I am not sure that registration periods of 15 years for a class 1 offence and eight years for a class 2 offence are enough. We have recently seen some of the most horrific sex offenders released from jail. Some of them have served a pittance of their sentences, while others have served many years in jail. These people should be on the sex offender register for life. Class 1 offences are all detailed in schedule 1 of the Community Protection (Offender Reporting) Act 2004, and are deemed to be the most serious offences. Class 2 offences relate mainly to people found in possession of, downloading, storing or distributing child pornography, whether as literature or images. I suggest that there is something wrong with any person who has engaged in that sort of activity. I do not believe what some of our do-gooders say - that these people can be cured if they do a sex offenders’ program and if they find God. I have already found God, but I would gladly find God for a second time if I thought it would save me two or three years of imprisonment. I would go to the chapel every week if I thought it would save me two to five years in prison. If I were in their shoes, I would go on a sex offenders’ program. I would do any of those things to get out of jail free. That is what is happening in our society. We are letting these animals - I will call them animals because that is what they are - out of jail and giving them the opportunity to commit these sorts of heinous crimes again. The length of time for which people who have been found guilty of a class 1 or class 2 offence are required to report is not sufficient; they should be on the register for life. People who have that sort of inclination do not just suddenly stop. It does not matter how old they are. We know of old men sexually abusing young children and that, to me, is one of the worst possible crimes. They should be on the register for the rest of their lives. We may want to discuss this in more detail during the consideration in detail stage of the bill. Mr J.B. D’Orazio: How does all this relate to the bill before the house? I cannot find any place where it fits in. Mr R.F. JOHNSON: It relates to the bill, because this bill deals with changes relating to the investigation of child pornography. Mr J.B. D’Orazio: It is not the about the penalties; it is about the processes the police go through. Mr R.F. JOHNSON: It relates to this bill inasmuch as it relates to the Community Protection (Offender Reporting) Act 2004. It may be a long bow, but it is there. The two pieces of legislation relate to each other. Mr J.B. D’Orazio: I promised that I would not interrupt you, so I will not interrupt you. Mr R.F. JOHNSON: That is fine; we get on fine. However, that is the point I am trying to make. It is all part of this bill. This bill is being referred to and used under the Community Protection (Offender Reporting) Act, so it is important that the bill before the house now be correct. It is important that this bill be renamed to reflect the Community Protection (Offender Reporting) Act 2004. Can the minister see that? Mr J.B. D’Orazio: Yes, but we are not changing the Community Protection (Offender Reporting) Act 2004 in any form at all. Mr R.F. JOHNSON: No, but the bill refers to a bill that does not exist at the moment. Mr J.B. D’Orazio: Please continue. I will let you get on and not interrupt you again. Mr R.F. JOHNSON: That is okay. The member questioned it. That is why I am saying that one bill relates to another, so each bill must be good legislation. There must be a bill to which that one can relate. Until now there has not been, but now we will have that bill. When this bill is renamed, the offences provided for under this bill are all part of the same crimes as far as I am concerned. If the offences relate to child pornography, they are the same crimes. Clause 4(4) is a deeming condition that picks up those sorts of people we have been talking about. If that is not the case, the minister’s advisers have given the wrong advice, because that was their explanation for that clause. It is important, and it is part and parcel of the same crimes. The offences in this legislation are predominantly sex crimes. Whether they be distributing unclassified sex films, videos, DVDs and computer games or whether they be child pornography that can be downloaded from computers, they are all sex crimes. Of course, the new classifications will marry up with national standards. Films depicting violence can be pretty horrific, but the ones that affect people most are sex abuse films, videos, DVDs and games. The worst films, videos, DVDs and games are those containing violence and sex abuse. The more violence there is, the worse they are, but they are all dreadful things. We do not want people to see them, particularly not young people. That is why the minister has brought in the new classification. Western Australia handed over its powers to national censorship a few years ago. I remember our doing it, and that is not a problem, but the reason we must have this bill is not only so that Western Australia is in tune with national classifications and everything else, but also to reflect the legislation, such as the Community Protection (Offender Reporting) Act, which is now in place. These are all part and parcel of the same issues. I am glad we are getting to grips with this now. I will not spend much longer on the second reading debate because, as I have said, we support the bill, but we will want some explanation during the consideration in detail stage, which I am sure the minister, together with his advisers, will be able to give to us. My colleague the member for Nedlands also has a great interest in this bill. As a lawyer, she will probably understand some of the legal technicalities better than I. As a past prosecutor, she will understand some of the implications that some of these clauses will have. I am a fairly innocent, naive person when it comes to these things; I like to think good of everybody until somebody proves differently. However, my colleague has seen many bad people appear before the courts where she has had to prosecute them, so she will understand a lot of the detail much better than I will. I am very happy to admit that. My colleague the member for Nedlands wants to make a substantial contribution to this legislation, so I will sit down and allow her the opportunity to do so. I look forward to continuing a lot more informative discussion during the consideration in detail stage. MS S.E. WALKER (Nedlands) [1.28 pm]: The member for Hillarys flatters me. I do not think I will touch on many of the areas that the member for Hillarys went through, because he gave a very good overall view of what the bill is seeking to do. This bill comes under the justice portfolio in the Government Gazette; it is not one that comes within the Attorney General’s portfolio. Nevertheless, I have not had the opportunity to look at the Censorship Act before. The Censorship Act was always handled by the former member for Kingsley. She handled it during the time she was Attorney General and retained the handling of all matters pertaining to censorship when they came before this house, as I understand it. We support the amendments to the bill. I come to this bill with fresh eyes. This created in me an interest in how everything worked in relation to the commonwealth level and how the Censorship Act came to be in Western Australia. I have done a little digging around to see whether I can put this legislation into some sort of context. I am quite sure that the minister is across it. As the member for Hillarys has said, the bill does several things: it changes the name of the current Censorship Act 1996 to properly reflect its function under the national censorship scheme. The legislation will have the same name as the commonwealth act, as I understand it. The Classification (Publications, Films and Computer Games) Act 1995 is the title of the commonwealth act. The commonwealth scheme was the subject of a report by the Australian Law Reform Commission in 1991. It resulted in the general revision of censorship laws and administration throughout Australia. I looked back at what was said in the federal Parliament on 22 September, because that is when major changes were made to a whole variety of laws that we have scattered around the state in Western Australia. They are all pulled together under the one censorship act of 1996. I thought it was interesting to read the comments of the then commonwealth Attorney General, Hon Michael Lavarch, who said - The Classification (Publications, Films and Computer Games) Bill provides for the classification of films, publications and computer games. This is the forerunner to the Western Australian Censorship Act. He continues - The agreement of the states and territories to the bill proceeding provides a unique opportunity, on a cooperative national basis, to make Australia's censorship laws more uniform and simple, with consequential benefits to the industry and the public. I pause there to ask myself the question: what is the purpose of censorship laws? I will come to that shortly. He said - The bill is the Commonwealth's contribution to revising the current legislative structure in cooperation with the states and territories. When enacted, the bill will not be able to be brought into force until complementary state and territory enforcement legislation is enacted. The model state and territory legislation is currently being drafted. He went on to say - Australia’s censorship laws are in an unsatisfactory state. They comprise regulations under the Customs Act 1901 which, among other matters, establish the Censorship Board and the Film and Literature Board of Review, a Commonwealth administered Australian Capital Territory ordinance, and state and territory legislation. For many years, the Censorship Board has performed the classification function for films under state and territory legislation. There are considerable difficulties in administering the current laws as they are unnecessarily complicated and not uniform. With this background in mind, the Australian Law Reform Commission was asked to report on how the laws could be simplified and made more uniform and efficient while preserving the cooperative nature of the current scheme. The commission presented its report on censorship procedure in 1991 and the bill has been prepared in consultation with the states and territories, following the recommendations in that report. He said also - The bill will establish the Classification Board and the Classification Review Board and set out the procedures for classification. I will come to that in a minute because that is relevant for Western Australia. He continues - Classification decisions will be made in accordance with the national classification code and guidelines to help apply the code. Both the code and the guidelines - The staff of the Minister for Justice have been very kind and cooperative; they have given me help so that I can understand it. He continues - The code and the guidelines must be agreed between the commonwealth, states and territories. I have a copy of that code. He further states - Under the new scheme, it is proposed that state and territory legislation will adopt, in enforcement laws, the classification decisions made under the Commonwealth act. This is important - It is the state and territory legislation that will, in effect, govern the submission of films, publications and computer games to the Classification Board for classification. It will also deal with the consequences, in the respective jurisdictions, of the different classifications given by the board to films, publications and computer games. The 1995 commonwealth act then established a new Classification Board and a Classification Review Board. It set out new administrative procedures for the classification of material and it provided for the classification of computer games. If I am wrong, I would like to be corrected during the consideration in detail stage. It is important that members of the public who read what we say today understand the scheme and how it works for Western Australian citizens. In 1995, the Standing Committee on Uniform Legislation and Intergovernmental Agreements commented on the 1995 act. That sounds very longwinded. Hon Phillip Pendal was a member of the committee that presented a report on the censorship bill which was then before Parliament and which followed on from the federal act. I am not sure whether the federal act had been enacted before the Western Australian bill was introduced into the state Parliament in 1996. The report states that the Western Australian government introduced the Censorship Bill into the Legislative Assembly in 1995, and that it commenced operations in this state on 1 January 1996. It consolidated into one act provisions contained in the following statutes: the Indecent Publications and Articles Act 1902, the Censorship of Films Act 1947, the Video Tapes Classification and Control Act 1987 and the Criminal Code, which deals with the classification and control of publications, films, videotapes and indecent and obscene articles and objects. The bill also incorporated new provisions dealing with the classifications and control of computer games and the control of computer services, such as the Internet. The committee to which I have referred comprised the then members for Floreat and Geraldton, the current member for Darling Range and the then member for Ashburton, who is now the Speaker. It is a very brief report but it is worth putting on record a couple of comments in it. The censorship bill was introduced - . . . after extensive consultation with the Commonwealth, State and Territory Censorship Ministers as well as industry and community representatives. The legislation results from two agreements reached by the Standing Committee of Attorneys General. The two agreements are as follows - (1) This agreement involves all jurisdictions and is based on a revision of the Co-operative Legislative Scheme for Censorship in Australia which sets up the censorship scheme for the classification of films and computer games. The Agreement also provides that the Classification Guidelines can only be amended with the consent of all the Ministers. I am not sure whether that is still the case. Mr J.B. D’Orazio: Yes. Ms S.E. WALKER: The report continues - The Agreement recognises that Western Australia will have its own legislation and will classify publications on its own account. As I understand it, that changed. Mr J.B. D’Orazio: In 2003. Ms S.E. WALKER: Yes. It continues - This Agreement is in the process of being signed by Ministers. (2) The second Agreement between the Commonwealth and Western Australia enables the appointment of the Commonwealth censor as censor and appeal censor for this State. This Agreement sets out the mechanisms by which the Commonwealth will carry out the censorship process. The Agreement may be terminated by the Minister at any time. Is that still the case? Mr J.B. D’Orazio: There is an agreement. I am not sure whether they have the ability to override it. Ms S.E. WALKER: That agreement was being drafted at that time. The Censorship Bill, as it was then known, was the first complete review - Mr J.B. D’Orazio interjected. Ms S.E. WALKER: It was interesting to see how that came into being, how it changed at the commonwealth level and how it came into being in Western Australia. Censorship laws across Australia were like scrambled eggs. In Western Australia, a lot of old provisions were repealed. They were outdated and outmoded and provided only very light penalties. In 1996, the Censorship Bill, as it was then known, was the first complete review of the state’s censorship laws by the government in more than 20 years. As I understand it, prior to the commonwealth act a commonwealth censorship board classified films and videos for all Australian jurisdictions and publications for all states except Western Australia and Tasmania. Therefore, the Classification Board and the Classification Review Board conducted the censorship for films and videos on that basis. The enforcement of the commonwealth act was left to the states and territories. At the time, I think the former member for Kingsley, Hon Cheryl Edwardes, was the Attorney General. I read the second reading debate, and noted that the former member for Perth, Hon Diana Warnock, was the Labor Party’s spokesperson. Although Western Australia was part of a scheme for classification of films and computer games, Hon Cheryl Edwardes said the government would not adopt decisions made under the commonwealth act. WA entered into an agreement with the commonwealth censorship board to be appointed censor of Western Australia and to make decisions under Western Australian legislation for films, videos and computer games. Is that still the case? Mr J.B. D’Orazio: There is only the central body; there is only Canberra now. Ms S.E. WALKER: Is it all done in Canberra? The then Censorship Bill allowed the WA minister to vary commonwealth classification decisions for films and computer games in WA. Was that repealed in 2003? Mr J.B. D’Orazio: Yes. Ms S.E. WALKER: It is important to set it down on the record. In 1996, the commonwealth had no role in the classification of publications for Western Australia; the state minister had that role, acting on advice from the then state advisory committee on publications. Mr J.B. D’Orazio: I think that was repealed in 2002. Ms S.E. WALKER: In 2002, amendments to the act were made by the Gallop government through the Censorship Amendment Bill 2002, which enabled Western Australia to briefly become a full participant in the national cooperative scheme and made it consistent with other states and territories. It appears that we gave the commonwealth the power to classify our publications, and the penalties were increased. I think that is when infringement notices for less serious offences were introduced. When I attended the briefing for the opposition the other day, I was interested to know - as the member for Hillarys said, because I am a former prosecutor - about the offences and penalties under the current censorship agreement. I wanted to know which penalties were prescribed for which offence. Before I discuss that, I will briefly mention - I am sure we can go into this in consideration in detail - that although there is a commonwealth act, at the back of that act is a National Classification Code. I understand that in May this year a new code was tabled. Mr J.B. D’Orazio: A new classification code. Ms S.E. WALKER: I am sorry that I do not have time to speak on that in the remaining six minutes. I do not think Western Australian members of Parliament would know where to look for the classification code, what it entails or how we act upon it in this state. An example is that the code is attached as a schedule to the commonwealth act. The introduction to the guidelines to the classification of films and computer games, for instance, which is produced by the commonwealth, assists us in interpreting the classification or the codes. I will give members a very brief example of that. All the classifications are listed. The guidelines use the following hierarchy of impact: G is very mild, PG is mild, M is moderate, MA15+ is strong, R18+ is high and RC is very high. However, under the general category it states that the impact of the classifiable elements for material classified G should be very mild only. The code states - . . . The G classification is for a general audience. However, it does not necessarily indicate that children will enjoy the film or computer game. Some G films and games contain themes, story-lines or game play that do not interest children. There is then a list of classifiable elements. It is stated that the treatment of themes should have a very low sense of threat or menace and be justified by context; violence should have only a low sense of threat or menace and be justified by context; sexual violence is not permitted; sex and sexual activity should be very mild and very discreetly implied and be justified by context; coarse language should be very mild and infrequent and be justified by context; drug use should be implied only very discreetly and be justified by context; and nudity should be justified by context. That gives an example of where censorship has been heading and where it is today. I suppose I am trying to put all this into one speech. I will not go into everything that the bill does, but I wanted to make mention of the purpose of the code. The code further states - Classification decisions are to give effect, as far as possible, to the following principles - [Leave granted for the member’s time to be extended.] Ms S.E. WALKER: The code continues - (a) adults should be able to read, hear and see what they want; (b) minors should be protected from material likely to harm or disturb them; (c) everyone should be protected from exposure to unsolicited material that they find offensive; (d) the need to take account of community concerns about: (i) depictions that condone or incite violence, particularly sexual violence; and (ii) the portrayal of persons in a demeaning manner. The guidelines on consumer advice state - Except for G classifications, the Act requires the Classification Board to provide consumer advice about the content of films and computer games it classifies. (For G classifications, the Act gives the Board the option whether to provide consumer information.) This information helps consumers make informed choices. Therefore, when the Classification Review Board now looks at classifications in either the Australian Capital Territory, Western Australia or the Northern Territory - Mr J.B. D’Orazio: Tasmania. Ms S.E. WALKER: It was Tasmania. Are all jurisdictions around Australia now involved in the scheme? Mr J.B. D’Orazio: Yes; we are the last one. Ms S.E. WALKER: We are the last one. Did it end in 2003? Mr J.B. D’Orazio: I am not sure about 2003, but this one definitely. Ms S.E. WALKER: All right, about then. So the board looks at films, videos and computer games. Does it look at publications as well? Mr J.B. D’Orazio: Yes. Ms S.E. WALKER: So the board goes to the schedule in the act as a starting base for the codes and then to the guidelines to help it make a decision. Is that how the board makes a decision? Mr J.B. D’Orazio: Yes, there is a group of things listing them. Ms S.E. WALKER: Sure. However, I have not seen in the second reading speeches that I have read an explanation of how the board gets to its determination of the classification of material. Mr J.B. D’Orazio: There is a provision for the states to appeal a decision, and, upon receipt of the appeal, the matter goes off to another review. Ms S.E. WALKER: Does it go to the Classification Board and then to the Classification Review Board? Mr J.B. D’Orazio: There is a review that may decide that the original decision is final. Ms S.E. WALKER: I have a document that the minister tabled, I think, in May. Perhaps the people of Western Australia want to know what the classification codes are now. The principles are the same as the classifications I have just read. I would like to read these. There is a new schedule to the commonwealth act, the National Classification Code, that Hon Philip Ruddock brought into the federal Parliament for which I think I have with me the second reading speech. The classifications are RC for publications, category 2 restricted, category 1 restricted, unrestricted, X, R, MA, M, PG and G. I have already been through category G. Briefly, films classified PG cannot be recommended for viewing by persons under 15 years of age without the guidance of parents or guardians. Films classified M are films, except RC, X, R and MA films, that cannot be recommended for viewing by persons under 15 years of age. Films classified MA are films, except RC, X and R films, that depict, express or otherwise deal with sex, violence or coarse language in such a manner as to be unsuitable for viewing by persons under 15 years of age. Films classified X are films, except RC films, that contain real depictions of actual sexual activity between consenting adults in which there is no violence, sexual violence, sexualised violence, coercion, sexually assaultive language or fetishes or depictions which purposefully demean anyone involved in that activity for the enjoyment of viewers in a way that is likely to cause offence to a reasonable adult, and are unsuitable for a minor to see. Does the RC classification mean that the films cannot be viewed at all? Mr J.B. D’Orazio: Yes. Ms S.E. WALKER: Films classified RC are films that depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified; or describe or depict in a way that is likely to cause offence to a reasonable adult a person who is or appears to be a child under 18 years of age, whether or not the person is engaged in sexual activity; or promote, incite or instruct in matters of crime or violence. The act goes on to refer to categories 2 restricted and 1 restricted. However, if members have read my contribution to the second reading debate, they would know about those categories. However, to understand how the Classification Board censors the films, they would need to read the guidelines given by the commonwealth government in that schedule. I will quickly refer to the offences in the 2002 amendments to the act, when infringement penalties were brought in for the first time. There are offences in the act and, like the member for Hillarys, I am surprised that the possession of child pornography carries a maximum penalty of only seven years. I would have thought it would have been a lot more than that. I have not checked the Criminal Code, but I may have an opportunity to do that before the consideration in detail stage. However, under general offences in the Censorship Act, possession of indecent or obscene articles carries a maximum penalty of only $10 000. Under section 60, the possession of child pornography carries a maximum penalty of only seven years, and that is the highest imprisonment penalty in the act. For publication offences, the highest imprisonment term appears to be 18 months - I am not sure whether that is mandatory - for the sale or supply of submittable or RC publications. Mr J.B. D’Orazio: This bill isn’t about penalties. Ms S.E. WALKER: I know that it is not. Mr J.B. D’Orazio: It is about bringing in changes. Ms S.E. WALKER: Sure, but I can talk about the act. Mr J.B. D’Orazio: I am just saying that I am happy to look at that as another issue. Ms S.E. WALKER: Yes, but I am allowed to make comments during my contribution to the debate on what I regard are quite inadequate penalties, and I am making that point. Mr J.B. D’Orazio: Yes. I am not disagreeing with you. Ms S.E. WALKER: I know. We will get to what the minister wants to talk about. Ms M.M. Quirk: You are not the minister; what do you know? Ms S.E. WALKER: I give the minister a lot of respect in this place, which is more than I can say the member for Girrawheen gives members of this place. I refer to films and offences. If a film that is refused classification is exhibited in a public place, the penalty is only 18 months. I wonder whether some time in the future the minister will look seriously at the penalties in the legislation because I do not think they are strong enough. I understand that there will be some changes to infringement notices and that there will be changes to the name of the act, which is contained in the schedule. That will reflect the current name of the act. I understand that the Community Protection (Offender Reporting) Act 2004 was given assent in February this year. That act deals with the registration of sex offenders, including paedophiles. However, from 1 February until this bill is assented to the legislation will not capture automatically anyone who is convicted of a sexual assault offence or a sexual offence against a child. I ask the minister: how many offenders were convicted after 1 February or the date on which the act was proclaimed - I think it may have been 2 February? Of those offenders, how many were paedophiles? How many charges were involved? Who was not captured automatically by the mistake in that act? Does the minister understand what I am saying? Mr J.B. D’Orazio: I will try and find out for the member. Ms S.E. WALKER: Of those people, was any application made against them by the Director of Public Prosecutions, because there should have been? Mr J.B. D’Orazio: As I said, I will check the matter for the member. Ms S.E. WALKER: Aside from that, I do not have anything further to add until consideration in detail. MR J.B. D’ORAZIO (Ballajura - Minister for Justice) [1.52 pm]: I thank the members who contributed to this debate and I thank those who gave support to this bill. This bill is not aimed at looking at penalties; it is about fixing an anomaly that occurred because we are now part of the federal scheme, and classifications under the national scheme are different from those currently in place in this state. This legislation addresses that anomaly. The changes will be backdated to 26 May, when the new federal classifications came into place. That is the intention of the bill. At the same time, in doing this, the government has taken the opportunity to strengthen some provisions to try to control child pornography in order to lessen the difficulties faced by the Police Service in doing its job. The changes will give the police the ability to do their job better. They will ensure that the ability of anyone to possess child pornography in our community will be limited. Police will be given more power. It is quite appropriate that we do that. We are also changing requirements under the legislation for processes to be undertaken. The member for Hillarys made comments to the effect that he would like us to investigate everything from e-mail to the whole world. I understand where he is coming from concerning e-mail. I am told that that is already covered by a commonwealth communications act that deals with the improper use of a communication service. We all understand that no-one wants to receive disgusting e-mails. We will do whatever we can to come to a position of strength on this. We want to stop people receiving inappropriate messages. It is a position we all support. Mr R.F. Johnson: We are amending the Censorship Act 1996, section 60 of which deals with child pornography. Section 60(4) states that a person who possesses or copies child pornography is guilty of a crime, and is liable to imprisonment for five years. I can understand copying, but if someone innocent like me receives unsolicited material through an e-mail, I am still in possession of it whether I want to be or not. I do not want to be, obviously. Technically, a person is guilty of possession if such material is on his computer system. Mr J.B. D’ORAZIO: I am not a computer expert so I am not sure whether material going through the e-mail system does go on to a person’s computer system and stays there. Mr R.F. Johnson: If the material is deleted, as I have done, it is still in the trash box. As the minister knows, experts can retrieve material that has been trashed, even if it was a long time ago. I did not open the disgraceful e-mail I received; the description was enough. It concerned sexual acts between teams of fathers and daughters. It was dreadful stuff like that. I did not open that e-mail or the web site; I deleted it immediately. However, I was in possession of it. Mr J.B. D’ORAZIO: This legislation does not cover the transmission of e-mails from one location to another; that is part of the federal communications legislation. Mr R.F. Johnson: But the act we are amending does; it comes under section 60, “Child pornography”. Mr J.B. D’ORAZIO: Child pornography covers a lot of areas. What we are amending here gives police powers to hold equipment. It does not refer to the offence that the member is referring to. Mr R.F. Johnson: The act the minister is amending does. The minister is amending the Censorship Act 1996. It will be renamed but, under that act, the sections will remain the same apart from the ones that the minister is amending. Mr J.B. D’ORAZIO: The government is confining the legislation to very specific things. One is to change the name of the act. If the member is asking me to review the act, we can do that in a different process. We are amending the act with minor changes to bring the classifications into line with the commonwealth act, introducing different classifications for some films and computer games, and giving some powers to police. We are not covering the areas referred to by the member. The member is asking that his concerns be looked at as a separate exercise. The member for Nedlands referred to other matters. I am happy to take them on board at a later date. Mr R.F. Johnson: I wanted to get that commitment from the minister. Many people are receiving the disgusting e-mails with the even more disgusting attachments. They are deemed as child pornography. Most decent people do not want them coming into their homes through their computers. The minister is responsible for censorship and the Censorship Act. He is amending some of it today but he should amend some other parts. Mr J.B. D’ORAZIO: I am happy to look at processes we can look at. This legislation does not deal with those concerns. This legislation is very specific. Let us not bring other things into this. There is already federal legislation to control the sending of e-mails. The sending of obscene e-mails is the offence. The member is concerned about having received material on his computer. We will need to check that out under the Criminal Code and/or the Censorship Act. I am sure we can do that independently of this process. Mr R.F. Johnson: But under the act I am guilty of possessing it. Mr J.B. D’ORAZIO: Under the Censorship Act, the member may be. We can look at that process independently of this debate. Mr R.F. Johnson: This is the main act. That is what I am saying to you. Don’t do half a job. Mr J.B. D’ORAZIO: I thank the member for Hillarys for extending this debate so that I can get to two o’clock and question time! Mr A.J. Simpson: The point is about jurisdictional control; that is the point about e-mails. Mr J.B. D’ORAZIO: Communications is a federal issue and is covered under federal legislation. It is the appropriate place. This bill is very, very strict and limited to what we are doing. The ability for police to issue and withdraw infringements is a minor change that strengthens the current act. The amendment will not cause any great problems and should not have been there in the first place. This legislation will bring us back into line. The change in the name will resolve some of the anomalies referred to. Ms S.E. Walker: How will it do that? Mr J.B. D’ORAZIO: I will continue my comments when we get to consideration in detail. Ms S.E. Walker: We wait with bated breath! Mr J.B. D’ORAZIO: Absolutely! I thank members for their comments on this bill. I look forward to the next stage. Question put and passed. Bill read a second time. *** House: Legislative Assembly Consideration
in Detail CENSORSHIP AMENDMENT BILL 2005 Consideration in Detail Clauses 1 to 3 put and passed. Clause 4: Section 1 amended, consequential amendments, transitional and validation - Mr R.F. JOHNSON: Mr Speaker, under clause 4 - Mr A.D. McRae interjected. Mr R.F. JOHNSON: Dumb and Dumber are having a go again! It is Dumber, rather than Dumb, who is speaking this time. We have had it in this house so many times. The members for Perth and Riverton never learn; they sit there like a couple of monkeys. I said they were Dumb and Dumber, and the member for Riverton asked “Which one am I?” The SPEAKER: As the member for Hillarys knows, we should address the clause we wish to talk about. If he addresses the clause, we will proceed very well. Mr R.F. JOHNSON: That is what I wanted to do; I wanted to address the clause, until Dumber made a contribution. I will come back to the clause because it is important. This is not a hard question; even Dumb and Dumber would probably know this, but I would like the Minister for Justice to explain so that it is on the record. The purpose of clause 4 was explained to me in brief detail yesterday, but perhaps the minister can explain now, so that it is on the record in this house, the exact purpose of this clause, the reason for it, what it achieves and what it relates to. Mr J.B. D’ORAZIO: Clause 4 renames the Censorship Act to the Classification (Publications, Films and Computer Games) Enforcement Act. This brings us into line with the federal act, and what has been adopted by all the other states. It then brings in other legislation, which the member referred to earlier, in which the name of this act is referred to in other legislation. It corrects the anomaly. Mr R.F. Johnson: Would you explain this as a deeming condition? Yesterday it was explained as a deeming condition, because it picks up certain people. That is how it was explained to me yesterday. I just want the minister to explain exactly what that means. Mr J.B. D’ORAZIO: Clause 4(3) will result in a reference in any other act or regulation to the Censorship Act 1996, unless the context requires otherwise, being read or construed as a reference to the Classification (Publications, Films and Computer Games) Enforcement Act 1996, which brings us into line with the commonwealth and other states. Mr R.F. Johnson: Who does it pick up? I was told yesterday that it picks up certain individuals. Will the minister tell me which individuals these are? Mr J.B. D’ORAZIO: A previous act refers to the new title rather than the old title. By giving the act the new title, we have fixed this anomaly. Mr R.F. Johnson: We had a briefing yesterday. Several members interjected. Ms S.E. WALKER: I have spent a lot of time on this legislation, and the three fools here keep giggling. I want to know what is being said about the legislation. I ask the Speaker to ask these members to go outside if they want to giggle. The SPEAKER: I was concentrating on something else. It is inappropriate to interject to the extent that people who wish to listen to the debate cannot hear it. If people do not wish to contribute to the debate, and they cannot resist speaking, they should leave the chamber. Mr J.B. D’ORAZIO: This clause picks up the anomaly that was created on 1 February and will exist until this legislation is enacted, in that the name of the legislation in another act was different from what the legislation is called. This corrects that anomaly and solves that problem. Mr R.F. Johnson: So it picks up people who commit offences under that other act? Mr J.B. D’ORAZIO: Yes; this refers to its proper name. Clause put and passed. Clause 5: Section 117 amended - Mr R.F. JOHNSON: Will the minister give a brief outline of what will be achieved by amending section 117 with the amendments contained in this bill relating to the investigation of child pornography? Mr J.B. D’ORAZIO: Clause 5 allows the police to hold on to the equipment for up to 12 months for cases in which it is highly likely that the equipment contains child pornography. Currently, a summons is required to keep the equipment after 60 days. Under this clause, the equipment can be kept for up to 12 months if it is highly likely to contain child pornography. After 12 months the equipment can be kept if it is believed it is highly likely to contain pornography. This provision will give the police far more power than it has. Currently the police must apply for a summons or for an extension to hold onto the equipment after 60 days. This provision will allow the police to hold onto the equipment for 12 months if it is highly likely that it contains child pornography. Even if no charges have been laid, the police will be able to retain the equipment in their possession after 12 months if it is believed the equipment is highly likely to contain child pornography. Mr R.F. JOHNSON: I understand what the minister has said, but I do not know whether he has explained if fully. We were talking about this earlier. I do not have a problem with the outcome of this amendment. I accept that the minister said that it is highly unlikely to contain child pornography - Mr J.B. D’Orazio: I said highly “likely”. Mr R.F. JOHNSON: Obviously I have misunderstood the minister. I thought the minister said highly “unlikely”. Mr J.B. D’Orazio: No. Mr R.F. JOHNSON: The minister is saying that currently the police can hold the equipment, including hard drives and everything else, for 60 days and that this amendment will extend that time to 12 months. I think what the minister has said is slightly different from what will actually take place. I think the clause means that if the police still believe the equipment is highly likely to contain child pornography, the police had to apply for a court order to retain it for more than 12 months after the 12-month period. The minister can answer by way of interjection if he would like to. Mr J.B. D’Orazio: No, it does not. That is what I said to you earlier. It means they can forfeit the material, even though no charges have been laid, if it is highly likely that child pornography is on the computer. This covers a situation whereby someone might have seen a print-out from a computer that had child pornography on it but the hard drive cannot be gotten into for whatever reason and it is highly suspected that the computer contains child pornography. The police could keep it after 12 months without applying for a court order. Mr R.F. JOHNSON: Is it an indefinite amount of time? Mr J.B. D’Orazio: The person would forfeit it. Mr R.F. JOHNSON: Completely? Mr J.B. D’Orazio: If it is highly likely that child pornography is on it. Mr R.F. JOHNSON: If it is highly likely to contain child pornography, it can be kept forever as far as I am concerned. The area of concern I have is about bringing charges against people who are collecting this type of material on their computer system and are distributing it. I explained to the minister that I might have that type of material on my computer, not because I put it on there but because a perverted person somewhere in the world sent me an e-mail with an attachment that contains child pornography. I am holding child pornography, I imagine. I have not opened it, but judging from the description on it, it looks like it does contain child pornography. The minister will address that. Technically, police could take away my computer if they believe I am holding child pornography on the computer, even though I did not put it there or solicit it; it is there because someone sent me a dreadful e-mail. Technically, I would have thought that I would be considered guilty of holding child pornography. The minister said earlier that that was part of the federal Telecommunications Act, which should address it. I do not mind that. However, this is contained in division 1 of the Censorship Act which refers to a person who is “in possession” of child pornography. It is not a matter of the person wanting to be in possession of it. A person who is in possession of it could be deemed guilty. Another point is the very long time it takes the police to find this type of material. I am concerned about whether enough specialist officers are employed who can get all the information off the hard drives in a reasonable time. I want to see people who possess such material charged in less than 18 months, if that is the amount of time it takes to find this vile type of literature. Will the government commit to increasing the number of officers who can deal with this type of offence so that the 12-month period does not have to be extended? Mr J.B. D’ORAZIO: The staffing of the unit is obviously a matter of police resourcing, although I am informed that extra resources have been allocated to that area. When a sting is being conducted, obviously more resources are put into it at the appropriate time. It has been pointed out to me that in some circumstances it is very difficult to prove that a person knowingly downloaded this type of material and can therefore be charged. Under this clause, if the police believe it is highly likely that the computer equipment contains child pornography on it, the police have the ability to take the equipment even though no charges have been pressed. That is the provision of this clause. Mr R.F. Johnson: My computer could hold that. Mr J.B. D’ORAZIO: This clause is not aimed at people who, like the member, innocently receive offensive material. This clause is about trying to get access to that type of material. Some of the hard drives and other devices on which this type of material is stored are very difficult to break into and get access to. If other evidence suggests that computer equipment may have these types of images on it, under this provision the police can take the computer and keep it so that it does not get back into the system. Mr R.F. Johnson: Is that because it is highly likely that there will be child pornography on that computer system? Mr J.B. D’ORAZIO: Yes. Mr R.F. Johnson: I must tell you that I and others may have that type of material on our computers from the crap e-mails we are sent that have attachments. I want to know how that is being addressed. Mr J.B. D’ORAZIO: That will not change. This clause will give the police the ability to keep a computer that they believe contains child pornography in circumstances in which charges might not necessarily have been laid. Mr A.J. Simpson: The member for Hillarys made a point about hard drives. The SPEAKER: Is this a point of order? Mr A.J. Simpson: Yes, it is, Mr Speaker. It is a point of clarification. The SPEAKER: A member cannot interrupt a minister to give his point of view while the minister is on his feet. Mr J.B. D’ORAZIO: I have finished saying what I wanted to say. The SPEAKER: The member for Serpentine-Jarrahdale. Mr A.J. SIMPSON: As a point of clarification, the hard drive contains information about the web sites a person has visited. That will tell the police whether the owner of the computer has used his credit card to buy pornographic material. If someone is sent an e-mail, the police cannot lay charges against the person to whom it was sent because somebody else had sent it, although a person could lose his job because of it. The hard drive contains information about the web sites a person has visited. If that person used his credit card, the police could trace the credit card statement from the computer, and they would catch the person. It would prove that the owner bought it and took receivership of it. However, if somebody is sent an e-mail, he can tell the police that it was sent by somebody else. The police cannot charge someone for receiving an e-mail. However, if the police searched the hard drive and found another 120 offensive photographs stored on the hard drive, that would be it. If a person has been sent one or more e-mails, he can tell the police that someone else had sent it, and point the police in the direction of the person who sent it. The minister is trying to make the point that once the police have a person’s hard drive in their possession, they can find all the web sites the person has visited in Russia, for example, which is where the majority of that type of material comes from. The police can then match the owner’s credit card statement with what he has been paying each month to certain web sites to receive information. Does that clear it up a bit? Mr J.B. D’ORAZIO: I am advised that a person can be charged only if he saves or downloads it. The police cannot lay charges against someone who receives an e-mail as an attachment. The material must be saved or downloaded. That is the advice I have received about the current process. Mr R.F. Johnson: Under what act? That is just a comment from your adviser from the police department. With all due respect, that is just a comment. Where can we be guaranteed that that is the case? Mr J.B. D’ORAZIO: I am advised it is an interpretation of section 60 of the Censorship Act. Mr R.F. Johnson: Whose interpretation is that? Section 60 of the Censorship Act relates to child pornography. That is the point I made to the minister. Section 60(4) of the main act states that a person who possess or copies child pornography is guilty of a crime and is liable to imprisonment for five years. The word I am stressing is “possesses”. Mr J.B. D’ORAZIO: The interpretation given to me by the police adviser is that possession means the material has either been saved or downloaded. That is how the police interpret possession before a person is charged. Mr R.F. Johnson: What is meant by downloaded? Mr J.B. D’ORAZIO: Put on a hard drive. Mr R.F. Johnson: A lot of these things are part of a hard drive. Mr J.B. D’ORAZIO: The member’s knowledge of computers is about as good as mine! I am relying on the advice that I am given. I am told that material is either saved or downloaded. Mr R.F. Johnson: What if material is deleted? Mr J.B. D’ORAZIO: That is not saved or downloaded. Mr R.F. Johnson: It is important that you put this on the record because people are concerned. Mr J.B. D’ORAZIO: I will give three examples of “highly likely to be, or highly likely to contain”. One is when other printed materials or items containing child pornography are located and the offender is charged over the other items. In other words, the hard drive is linked to other charges. Another example is when an offender confesses that child pornography is on his system but, prior to charging the offender, police want to examine the computer to confirm the offender’s confession. Thirdly, police may seize CDs or DVDs that appear to have been produced by the offender on a computer system. In that case, police may opt to keep the computer as it is “highly likely” that child pornography is on the computer. Ms S.E. WALKER: I wonder where the phrase “highly likely” came from. Is it used in other legislation in other states? It seems a very sweeping phrase. I suppose I could enter the debate on whether the member for Hillarys would be charged. I will use him as an example. Alternatively, I could use the member for Girrawheen. She could be sent material that she asked for in an e-mail. However, she may not download it. That does not mean that she is not guilty of possession. As such, I do not agree with any of the advice put forward. The member would be open to charges if material was found on his computer, whether or not it was saved. Mr J.E. McGrath: No way. Ms S.E. WALKER: Yes, he would. If material was sent to a person for his pleasure and enjoyment and he opened it, he could. The point is whether a person knew it was coming. The member for Hillarys did not know it was coming. Ms M.M. Quirk interjected. Ms S.E. WALKER: If I have said it once, I have said it a thousand times. If the member for Girrawheen wishes to say something, please stand up and say something. Ms J.A. Radisich interjected. Ms S.E. WALKER: The same to the member for Swan Hills. She should get up and say something. I do not agree with some of the comments. I believe the member for Hillarys would be open to prosecution under the Criminal Code. I ask the minister again about the phrase “highly likely”. Mr J.B. D’ORAZIO: “Highly likely” is parliamentary counsel’s recommendation of a legal definition that gives us greater certainty. It provides a high level of proof. Ms S.E. Walker interjected. Mr J.B. D’ORAZIO: It was recommended as a higher level of requirement. That is why it is in the bill. With regard to possession, an individual has to do something to possess information. An e-mail sent to a person from someone else is not interpreted as possession. Ms S.E. Walker interjected. Mr R.F. Johnson: Once I open it, it is an action. Mr J.B. D’ORAZIO: I am referring to the word “possession”. I tell the member what I am advised. The word “possession” is interpreted as doing an act to possess something. Mr R.F. Johnson: Opening the e-mail is doing an act. From what the minister has just said, that is possession. Ms S.E. WALKER: With due respect to the minister, that does not make sense. I could leave a packet of heroin on the desk of the member for Hillarys, but he will have done nothing. He may be in possession of it. The same exists with e-mails. An e-mail may be sent to someone and he opens it. Anyone could use that as a device for asking to see all the child pornography that another person may possess. He may ask for it to be sent to him by e-mail and he will open it, but he will not save it. As such, he believes he is not in possession. In my view, that is nonsense. I want to help the police as much as I can on this. Why do we have the provision “highly likely” in this state when it is a national scheme? The scheme is adopted by all states. Why us? Why do we have “highly likely” and no other state has it? What is different about us? Are our computers different? Mr R.F. Johnson: Is it in any other state legislation? Ms S.E. WALKER: No. I do not think so. Mr J.B. D’ORAZIO: The reason the phrase is in the legislation is that the act contains forfeiture provisions. That is why the phrase “highly likely” is used in the clause. Ms S.E. Walker: Is there forfeiture in other provisions in other states? Mr J.B. D’ORAZIO: We have not checked that. We will find out what is contained in other acts and relay it to the member. My advice is that the phrase is specific to our legislation. It came from legal counsel on the basis of trying to move the bar higher rather than lower. As I said earlier, the member may be technically right about possession. I am not a lawyer but she is. However, I am advised that that is not the way it is enforced. If a person is in possession of such material, the police will chase the person who sent it. More importantly, it is part of the original act and not this bill. Ms S.E. WALKER: I would be most concerned if a person in this state had 100 e-mails sent to him over a few months that contained child pornography, and it had not been downloaded in the belief that he could not be prosecuted. Mr R.C. Kucera: That is the nature of all charges. Ms S.E. WALKER: Thank you; I do not want to listen to what the minister has to say. I would be concerned if that were the case, but I do not think it is. However, I do not want to dwell on it. I wonder why our state has the provision “highly likely to be”. Under section 117(2a)(c) a hard drive is not forfeited; it is the computer. Is that not right? Mr J.B. D’Orazio: The hard drive is in the computer. Ms S.E. WALKER: I am talking about the board, the screen - whatever - the whole thing. Mr J.B. D’Orazio: I am informed that just the hard drive is taken. Ms S.E. WALKER: Okay. Mr R.F. JOHNSON: I would like to hear more of the comments from the member for Nedlands, who just spoke. The minister did not respond, and she needs somebody to interrupt her last speech so she can make her next speech. Mr J.B. D’Orazio: I apologise, member for Hillarys. This is my first time. Mr R.F. JOHNSON: Not a problem. The minister is doing okay. Ms S.E. WALKER: We appreciate the member for Hillarys’ experience in the chamber. Under clause 5, section 117(2a) is amended by deleting “under this Part”. Subsection (2a) of the principal act states - If - (a) a film classified RC or X; (b) a publication or computer game classified RC; or (c) child pornography, has been lawfully seized under this Part . . . It goes on to state that it can be forfeited. If we are deleting “under this Part”, how else could something be lawfully seized in this state and subject to forfeiture? Mr J.B. D’ORAZIO: I am told it would be done by using a search warrant that had been issued under section 711 of the Criminal Code. They could come in with a search warrant and collect the material under that section. Ms S.E. Walker: You are just extending it to make sure you cover child pornography? Mr J.B. D’ORAZIO: Yes, to include child pornography. Ms S.E. WALKER: I have the same question about subclause (3), which seeks to amend section 117(3) of the Censorship Act by deleting the words “seized under section 112 or under a search warrant”. What is the reason for deleting those words? Mr J.B. D’ORAZIO: Those words are sought to be deleted because they restrict the power of the police to seize material. Material may come into the possession of the police in a number of different ways. The deletion of those words will give the police the power to collect material in ways other than by lawfully seizing it. “Lawfully seized” is the new terminology. The old words are too specific. Ms S.E. WALKER: Subclause (4) seeks to amend section 117(6) of the Censorship Act by inserting a new paragraph (c ). Why is that necessary? Mr J.B. D’ORAZIO: This new paragraph will allow the police, with the approval of the court, to hold the material for 60 days if it does not contain child pornography. Ms S.E. Walker: Where does it say it can be held for 60 days? Mr J.B. D’ORAZIO: It says the material may be held “for such further period as the court thinks fit”. The court has to approve it. The police may be interested in material other than child pornography, in which case they will need to go to the court to get an extension to 60 days. However, if the material is child pornography, the police can hold it for up to 12 months. Mr R.F. JOHNSON: If the police have seized the computer and the hard drive in the belief that it contains child pornography, and then they establish that it does not - Mr J.B. D’Orazio: They cannot prove that it does. Mr R.F. JOHNSON: The minister has said that this deals with material that may be other than child pornography. If the police have seized the hard drive on the basis that they believe it is highly likely that it contains child pornography, they can keep it for up to a year, until they have concluded their investigations into that matter. However, the minister is now saying that if the police believe there may be something else on the hard drive that is not related to child pornography, they can keep it for longer than 60 days, but they will need to go to court to get an order to keep it. It may be a completely unrelated item. It may be a confidential letter that the police believe constitutes a conspiracy to commit a crime. What sort of unrelated matter will need to be dealt with by a court order? Mr J.B. D’ORAZIO: They can keep the material only if it relates to the Censorship Act, and it must be within the 60 days. If it is highly unlikely to contain child pornography, the 60-day rule will apply, and the police will need to get approval from the court to hold it for longer than 60 days. If they do not do that, section 714 of the Criminal Code will apply, under which the material must be given back to the original person. Mr R.F. Johnson: So the police only need to say they think it is highly likely there is something on there, and then they can keep it for longer than 60 days? Mr J.B. D’ORAZIO: If it is clearly not highly likely that the material contains child pornography, and if there is other material that the police are interested in, they will need to apply to the court if they want to hold that material for longer than 60 days. Mr R.F. Johnson: Does the minister accept that those words are probably a bit superfluous, because the police can maintain that they still think it is highly likely that it contains child pornography, even though they have discovered that it does not, and they can then keep it for longer and delve into the personal finances or correspondence of a person? Mr J.B. D’ORAZIO: There may be circumstances in which it is clear that there is nothing on the hard drive to do with child pornography. However, this amendment will allow the police to go to the court and seek an extension for more than 60 days if they can explain why they need to do that. To some degree is may be a bit superfluous, but if there is a specific case, this would cover it. Mr R.F. Johnson: Even if they believe it is unrelated to child pornography? Mr J.B. D’ORAZIO: Yes. It goes back to the search warrant power. Mr R.F. Johnson: Normally the search warrant power would be for specific things such as child pornography. The police do not have an open-ended search warrant to search somebody’s home. Mr J.B. D’ORAZIO: I am not a lawyer - the member for Nedlands may have a better knowledge of this - but there is what is called a chance find, which allows the police to do all sorts of things under the search warrant provisions. It is an area that I do not know much about, but I am advised that it comes under the common law. Mr R.F. Johnson: Is that encompassed in the search warrant that has been sought? Mr J.B. D’ORAZIO: It comes under the common law, which is independent of this legislation. Mr R.F. Johnson: I think some civil libertarians might want to raise some issues about that, but I will not progress that any further at this time. Ms S.E. WALKER: Subclause (5) seeks to insert a new subsection 117(9), which states - “lawfully seized” means lawfully seized in relation to an alleged offence under this Act. How does that fit with the Criminal Code or any other act? Mr J.B. D’ORAZIO: If material is lawfully seized in relation to an alleged offence under this act, it has to proceed under this act. Clause put and passed. Clause 6 put and passed. Clause 7: Section 117F amended - Ms S.E. WALKER: This is an interesting clause, because, as the minister has said during this debate, infringement notices came into being in this state in 2003. Are police officers the only people who can issue infringement notices? Mr J.B. D’Orazio: The minister can authorise any person to be a designated person. Ms S.E. WALKER: What sort of people would the minister authorise? Mr J.B. D’Orazio: It could be justice department people or police officers. Ms S.E. WALKER: How would that work? How would a person in the justice department issue an infringement notice for censorship? Mr J.B. D’ORAZIO: At this stage, no-one other than a police officer is designated to issue an infringement notice and we do not intend to change that. Ms S.E. WALKER: At the moment, a police officer who issues an infringement notice can withdraw that infringement notice - is that the idea? Part 3 of the bill, of which clause 7 is a part, will tighten up the provisions so that a police officer who issues an infringement notice cannot withdraw it. Will the person who is given that responsibility - I refer to an acting commissioner or someone like the Minister for Disability Services, the member for Yokine - be someone who is reliable and trustworthy so that we can ensure that there is no corruption in the system? Mr J.B. D’ORAZIO: This clause allows a police officer to issue an infringement notice; however, that same police officer cannot withdraw it. Someone delegated by the Commissioner of Police will be given the power to remove an infringement notice, so that there is no conflict of interest. We do not want a person who issues an infringement notice to have the power to withdraw it. Ms S.E. Walker: That doesn’t guarantee it though, does it? Mr J.B. D’ORAZIO: It does, because the clause states that the person who issues it cannot withdraw it. Ms S.E. Walker: What about a mate - not that I’ve got anything against the Police Force? Mr J.B. D’ORAZIO: An officer designated by the Commissioner of Police will be able to withdraw it. Ms S.E. Walker: I am always mindful of the Lewandowski affidavit. Mr R.F. JOHNSON: I understand the concern of the member for Nedlands. Indeed, to some extent I share her concern. The minister said that a police officer who issues an infringement notice cannot rescind that notice. The minister said that it must be somebody else - I assume he means a police officer - who is designated by the Commissioner of Police. Mr J.B. D’Orazio: He or she must be a commissioned officer authorised by the Commissioner of Police. It cannot be another constable; it must be a police officer of a certain level. Mr R.F. JOHNSON: I imagine that that person would be an inspector or someone with a higher rank. That is what I would hope. Will this be carried out on a case-by-case or infringement-by-infringement basis, or will one specific inspector or high-ranking officer within the Police Service be given the authority to rescind an infringement notice that has been issued by a constable or sergeant, whether it be in Perth or one of the regional areas? Will such a person be a permanently designated officer, or will that person be any commissioned officer - an inspector or above - in any area of Western Australia? Will the officer who issues an infringement notice be informed of the rescission? I am hoping that the provisions will avoid the possibility of corruption, collusion or doing a favour for a mate. An officer may in good faith issue an infringement notice against suspect A. However, suspect A might know somebody who is an inspector in the Police Service or who holds a higher rank and he might ask that person to rescind the infringement notice. I am concerned about that; it should not happen. Will the commissioned officer - an inspector or someone with a higher ranking - have to report to somebody who has an even higher ranking when they rescind an infringement notice? If we want to achieve a completely open and accountable system, maybe that should be considered so that an inspector or an officer with a higher ranking cannot do a favour for a mate. That is my concern. Obviously we - or the minister, because he is in charge - must address that issue. Perhaps we should amend the bill to ensure that the commissioned officer who rescinds an infringement notice has to report to a more senior officer. Mr J.B. D’ORAZIO: That is not in place at the moment. The processes that are in place relate to traffic infringements. I am informed that the commissioned officer will discuss the process with the issuing officer. At the appropriate time, a decision will be made by the commissioned officer. Under this clause, the Commissioner of Police has to authorise a commissioned officer and the commissioned officer will consider matters on a case-by-case basis. However, the department will outline its policies and explain how the process will be implemented. There is no reporting mechanism for traffic infringements, and none is proposed under this clause. This is about the Police Force operating this clause in accordance with the act. The Commissioner of Police can authorise a commissioned officer to be in charge of this area. The department will look after this particular area. It will liaise with the person who issued the infringement notice, and a decision will be made by the commissioned officer. Ms S.E. WALKER: We are discussing three different areas at once. Having issued an infringement notice, why would a police officer withdraw it? Has there been a situation in which something dodgy has been suspected because a police officer has withdrawn an infringement notice? Mr J.B. D’ORAZIO: The only way that this would happen is if a defendant complained about the process involved. A more senior officer would consider the case and liaise with the person who issued the infringement notice, and a decision would be made about whether there are appropriate grounds to withdraw it. Ms S.E. Walker: Has concern been expressed about corruption at that level? Why is it being changed? Mr J.B. D’ORAZIO: There has been no mechanism for the withdrawal of infringement notices. Previously, a police officer could not be the designated person and could not withdraw the notice. This provision will give the Commissioner of Police the ability to have a commissioned officer withdraw an infringement notice. That is the difference between the current process and the new process. Ms S.E. Walker: Where in the Censorship Act does it state that the police officer who issued the infringement notice can withdraw it? Mr J.B. D’ORAZIO: I refer the member to section 117J. I am informed that although a police officer cannot withdraw it, a public servant can. Ms S.E. Walker: Where? Mr J.B. D’ORAZIO: I am told that it is contained in section 117J(1), which reads - The Minister may, in writing, appoint persons or classes of persons to be designated persons for the purposes of section 117D, 117E, 117F or 117G or for the purposes of 2 or more of those sections. Ms S.E. Walker: Does section 117G refer to withdrawing an infringement? Mr J.B. D’ORAZIO: That is right. Ms S.E. Walker: Why is the minister putting in the provision for a higher ranking officer? Mr J.B. D’ORAZIO: Section 117J(3) reads - A person who is authorised to give infringement notices under section 117D is not eligible to be a designated person for the purposes of any of the other sections. That means that police cannot withdraw the infringement notice. Ms S.E. Walker: But a person from the Department of Justice could? Mr J.B. D’ORAZIO: Yes. Ms S.E. Walker: Of which there are none appointed at the moment. Mr J.B. D’ORAZIO: Under clause 7 we are appointing a commissioned officer who will have the ability to do it. Ms S.E. WALKER: If an infringement notice is given under a traffic act, or wherever act it may be, how can it be withdrawn? Mr J.B. D’ORAZIO: Infringement notices cannot be withdrawn at this time because no-one has been designated to withdraw them. Ms S.E. Walker: How do police officers withdraw infringement notices? Mr J.B. D’ORAZIO: Under the Road Traffic Act? Ms S.E. Walker: Yes; how do they do it? Mr J.B. D’ORAZIO: It is by a person of the rank of inspector or above; it is exactly the same as is being provided here. That is why this clause has been included in this form. Mr R.F. JOHNSON: Can it be anyone of the rank of inspector or above? Mr J.B. D’ORAZIO: Under the Road Traffic Act it can be any inspector, but under this legislation the appointment will have to be approved by the Commissioner of Police. In other words, the Commissioner of Police must designate a person for him to have the ability to do this, and that person must be of a certain rank. I am informed that under the Road Traffic Act, it can be any inspector. Mr R.F. Johnson: Does the commissioner designate just one person? Is it not just anyone of the rank of inspector or above? Mr J.B. D’ORAZIO: It is a commissioned officer of the Police Force who has been authorised to do so by the Commissioner of Police. It must be a commissioned officer, which outlines the rank. Under this legislation, the police commissioner must authorise a person to be eligible to remove infringement notices. Mr R.F. Johnson: Is that one person or can the commissioner give delegated authority to rescind infringement notices to half a dozen or a dozen people of the rank of inspector or above? Mr J.B. D’ORAZIO: The commissioner can authorise as many people as he sees fit. Ms S.E. WALKER: Is the minister telling me that since 2003, not one infringement notice has been withdrawn? Mr J.B. D’ORAZIO: That is correct. Mr R.F. Johnson: How many infringement notices have been served? Mr J.B. D’ORAZIO: I am unable to say. I asked the question of my advisers and they shook their heads. We do not have that information. Mr R.F. Johnson: Have any been issued? Mr J.B. D’ORAZIO: It is possible that none has been issued. Mr R.F. Johnson: Since 2003? Mr J.B. D’ORAZIO: We are hypothesising, because the information is not available. Ms S.E. WALKER: During the police royal commission that we had to have, which cost how much? Mr R.F. Johnson: Millions and millions. Ms S.E. WALKER: It cost millions and millions of dollars. During the royal commission, some disturbing allegations were made about sexual charges against famous people or celebrities being pulled by high-ranking officers. I would have thought that if a police officer issued an infringement notice, he would not withdraw it. I have great respect for the Police Force, but there are sometimes bad apples in there. A high-ranking officer could put pressure on a lower-ranking officer to withdraw an infringement notice. Why will the officer who issued the infringement notice not be able to withdraw it himself? He would not issue it if he were going to withdraw it. I am a bit concerned about this, particularly in areas such as censorship and child pornography. Does this occur in other states? How is it done in other states? Mr J.B. D’ORAZIO: This area of the bill does not refer to child pornography; it concerns infringements of the Censorship Act. We are putting in place a safeguard by outlining that only a more senior officer can remove an infringement notice once one has been issued. It would pose a greater danger if the person who issued the infringement notice had the power to remove it, as that might create unnecessary collusion. By stating that it must be a senior officer at the level of inspector or above who is designated to do so by the commissioner provides more credibility and integrity to the system. Ms S.E. Walker: I don’t agree. That is not necessarily so, minister. Mr J.B. D’ORAZIO: I will not question the integrity of the Police Force. By putting this provision in place, it will enable someone other than the person who issued the infringement notice to decide, after consultation, whether it should be removed. That is appropriate. Mr R.F. JOHNSON: I accept what the minister is saying, but I also accept the concerns of the member for Nedlands. A very simple amendment could be made by perhaps adding some words. That would probably solve this problem and would certainly make the acts of the officers more open and accountable. For instance, I totally agree that an officer who issues an infringement notice should not be able to rescind it. I do not have a problem with a person of the rank of inspector or above being able to rescind an infringement notice after considering all the detail. However, if an officer has been given this authority by the commissioner, he or she should provide an automatic report to the commissioner outlining the reasons he or she rescinded an infringement notice, so that there is some accountability all the way along the line. A very simple memorandum could be sent to the commissioner that outlined why the officer rescinded an infringement notice. I do not think it would do any harm. I think it would be good. It would alleviate any accusations of possible collusion, corruption or whatever, the sort of which the member for Nedlands has related. Mr J.B. D’ORAZIO: That should not be part of the legislation. If it were to happen, it would be a matter for the police department to decide as a matter of policy. I do not anticipate making such an amendment to the bill, as what has been suggested is not reflected in any other processes adopted by the police department in dealing with a similar but far more expansive area; that is, traffic infringements. Ms S.E. WALKER: We are not dealing with traffic infringements; we are dealing with the Censorship Act. As outlined in the Government Gazette, people can be issued with an infringement notice for displaying category 2 restricted material in a non-opaque package. The penalty is a fine of up to $5 000. I do not know what category 2 material is - I could find out - but I suspect that if it must be in an opaque package, it should not be seen. A young officer may issue an infringement notice for that offence. However, the person to whom the notice is issued may ring a mate in the Police Force who is of the rank of inspector or above - believe me, that has happened - to have the infringement notice removed. Frankly, it is not the same thing as talking about the Road Traffic Act. Is this provision in place in any other state? Are infringement notices issued in other states, and can they be withdrawn by senior ranking officers? Mr J.B. D’ORAZIO: I cannot inform the house of whether infringement notices are issued in other states. The police department already has reporting processes in place to deal with the discretionary ability to withdraw infringement notices. The bill reflects the normal processes. I have no intention of changing them. Ms S.E. WALKER: I just make the point that there is a long list of quite serious offences for which an infringement notice can be issued. For instance, a minor who is 15 years of age or older must not buy a computer game classified as RC. That means that that material cannot be available in the public domain. This provision cannot be equated with provisions on traffic offences. That is nonsense. Could the minister tell me what legislation is in place in other states on the issuing of infringement notices and the offences they relate to, and how they can be withdrawn? In my view, it would be highly unlikely for a police officer to issue an infringement notice and to then withdraw it. It is more susceptible to corruption for a higher-ranking officer to be involved. I stress that I have a huge degree of confidence in the Western Australia Police Force. However, it is easy for a person at a higher level in the Police Force to pressure a person at a lower level. Mr J.B. D’ORAZIO: As the member said, this clause refers to infringement notices and it is about display, not about selling or possessing. Those offences are dealt with under a different process. Ms S.E. Walker: Section 84(2) of the Censorship Act is about buying a computer game classified RC. Mr J.B. D’ORAZIO: This clause deals with the actual minor, not the person who is selling. Ms S.E. Walker: I know. Mr J.B. D’ORAZIO: I undertake to get the information the member for Nedlands asked for. It is important to know what is happening in the other states. I will do that before we get to the third reading stage. I cannot give that information right now, because I do not have it. Ms S.E. WALKER: To clarify that: section 84(2) may be a provision. I am not talking about the penalty to the minor; I am talking about the fact that a person in a shop may be selling that material to young people. Mr J.B. D’Orazio: The kid who bought the material would get the infringement; not the person who actually sold it. Ms S.E. WALKER: Sure, but who knows whether the person who is a minor is the son of someone involved? The point is that it can leave it open to corruption. It would be unusual for a person to issue the infringement notice and then withdraw it. Mr J.B. D’Orazio: I think we have dealt with this issue fairly extensively. Ms S.E. WALKER: So do I. Mr J.B. D’ORAZIO: I do not propose to make any more changes, but before the third reading stage I will undertake to find out whether infringement notices are issued in other states and the processes involved. Clause put and passed. Clauses 8 and 9 put and passed. Clause 10: Section 3 amended - Mr R.F. JOHNSON: The minister and his advisers have certainly assisted the passage of this bill through the consideration in detail stage, and I appreciate the clarification they have given. The rest of the bill deals with classification changes reflecting the national scheme. That is a bit of housekeeping to make things consistent throughout Australia. I believe we are the last state to do this. Mr J.B. D’Orazio: Yes. Mr R.F. JOHNSON: We should not be lagging behind; we should be up with the other states. I will not make any comments on the remainder of the bill at this stage because it is mainly about reclassifications. The member for Nedlands may wish to comment or ask questions, and that is her prerogative. I would be very happy to conclude the consideration in detail and not go to the third reading today because, in all good faith, the minister needs to provide further information. However, we can finish the third reading tomorrow. Mr J.B. D’ORAZIO: The member for Nedlands would like clarification on the classification changes. Currently for film - Ms S.E. Walker: Can I be given a comprehensive chart? Mr J.B. D’ORAZIO: There is a chart in the explanatory notes which takes one through the reclassifications. There are no dramatic changes and it basically brings us into line with the standards that have been adopted in other states. Clause put and passed. Clauses 11 to 34 put and passed. Schedules 1 and 2 put and passed. Title - Mr J.B. D’ORAZIO: I would like to thank the members for Hillarys, Nedlands and Serpentine-Jarrahdale for their support for this bill. The member for Serpentine-Jarrahdale has a very good knowledge of computer systems and hard drives. Maybe I need some lessons on computers. This legislation is important. It brings us into line with the rest of Australia and fixes up some anomalies. I thank the opposition for its support and I will provide the information I promised to members opposite before the third reading stage. Title put and passed. *** House: Legislative Assembly CENSORSHIP AMENDMENT BILL 2005 Third Reading MR J.B. D’ORAZIO (Ballajura - Minister for Justice) [10.23 am]: I move - That the bill be now read a third time. MR R.F. JOHNSON (Hillarys) [10.23 am]: I will not take up a great deal of the time of the house, because we have debated this bill in the second reading stage and have supported the clauses during consideration in detail. The opposition totally supports the bill. As I said during consideration in detail, it was essential that this bill be brought in, not just to deal with the reclassification of films, videos and computer games, but also to address the large loophole that the government created when it brought in the Community Protection (Offender Reporting) Bill 2004. Some months have been wasted because of the delay in bringing in this bill, and during that time some sex offenders have gotten away with not being registered on the sex offenders register. However, I am pleased the government has now addressed that matter. I thank the minister for supplying some information to me, and my colleague the member for Nedlands, since the consideration in detail stage about how other states handle infringement notices. We appreciate the fact that we have received that information so quickly. The minister promised that we would receive that information before the third reading of the bill. In my case the minister made it just in time, but that is fine; better late than never. Mr J.B. D’Orazio: I would have delivered it to you last night, but I could not find you. Mr R.F. JOHNSON: I was paired last night, so I was not available. The information highlights the fact that our legislation is very similar to the legislation in the other states and territories of Australia, particularly with regard to the provision that any recision of an infringement notice must be authorised by a senior police officer. In New South Wales the police officer can be just a duty officer at a police station. We have gone further than that and said the police officer must be of the rank of inspector or above. I hope that in the interests of the general public, and in particular vulnerable children, this bill will be given urgent passage in the other place, because it is essential that we address the loophole with regard to the sex offenders register. It is all very well to progress the bill quickly in this house, but that will be to no avail if the government in the upper house does not also bring on the bill as a matter of urgency. I would be more than a little disappointed - in fact, I would be extremely angry - if the government did not make this bill a priority in the upper house. We have taken very little time in this house to pass this bill. We have not filibustered for one second, and I think the minister recognises that. You are smiling, Mr Acting Speaker, because I know you think I filibuster sometimes, but I have not filibustered on this bill at all. It may be perceived that I filibuster - Ms S.M. McHale: It is part of your nature! Mr R.F. JOHNSON: It is not part of my nature at all, minister. The ACTING SPEAKER (Mr A.P. O’Gorman): Order, members! Do not encourage the member for Hillarys! Mr R.F. JOHNSON: Yes, do not encourage me! Members know they get into trouble when they encourage me! Normally the only time I filibuster is on a bill that we completely oppose. I will do anything I can to stop a bill going through this Parliament if I believe it is wrong for the people of Western Australia. However, when I believe a bill is right for the people of Western Australia and will protect the vulnerable people in our society I will give it my total support and will not waste the time of the Parliament at all. I believe that has been the case on this bill. I ask the minister to talk to his colleagues in the other place and ensure this bill is not left to languish on the notice paper in the Legislative Council for months and months, because the government will demonstrate extreme hypocrisy if it does not make this bill a priority in the other place. I urge the government to ensure the bill is brought on for debate in the upper house at the earliest possible opportunity and is given swift passage. The opposition is very happy to support the third reading of the bill. MS S.E. WALKER (Nedlands) [10.29 am]: I thank most sincerely the members of the public service who assisted the member for Hillarys, Hon Barbara Scott and me. As I said, I knew nothing about Western Australia’s Censorship Act 1996, but I feel now that I have a good grasp of its historical background. I thank Malcolm Penn of the Department of Justice; Frank Morisey, the senior policy officer with the Department of Justice; Matthew Samson, the legislation officer from the police legal services unit; and Natalie Machin, the ministerial policy adviser. I think Ryan, the minister’s staff member, was there yesterday - I do not have his last name. I concur with the member for Hillarys that this is important legislation. It is wonderful to see that the law, which is often described as a slow-moving glacier, has come together. This is the last state to hop on board completely, but it is wonderful to see the commonwealth and the states working together for a national classification scheme and a national classification review board. It is a good thing and the opposition is fully supportive of it. MR J.B. D’ORAZIO (Ballajura - Minister for Justice) [10.31 am]: I put on the record my thanks to the members for Hillarys and Nedlands for their support in helping this legislation go through the house so quickly. It is important legislation. The bill amends the Censorship Act 1996 to ensure that the name of the act reflects the purpose for Western Australia being a member of the national classification scheme. It also creates classifications uniformly across Australia, which is a good thing. It means that people will be able to understand the classifications. Parents will be in a much better position to make better judgments on how censorship is used and how to protect their children. The amendments also address certain forfeiture, evidentiary and infringement notice provisions. They are important, as they will give the police more power, especially in relation to child pornography offences. That will bring us into a better position to deal with that issue in the community. The bill is also important because, as the member for Nedlands indicated, it brings Western Australia into line with the national scheme. The legislation will be backdated to 26 May, which means that from that date, which was when the new classifications commenced, Western Australia will be in line with the national scheme. The bill also corrects an anomaly by changing the name of the act. As I said, this bill will contribute to the protection of children and the elimination of child pornography in the community. We, as members, regardless of the side of politics we come from, must ensure that the police have every weapon available to eliminate child pornography in the community. It is a scourge on the community and we should do everything possible to eliminate it. The legislation does that. I also put on record my thanks to Malcolm Penn of the department, Frank Morisey and Matthew Samson, Natalie Machin from my staff and all the other people who worked very closely in bringing this legislation together. It is an important bill. I do not think that many people realise how important it is, but I am sure that the community and the youth of our community will be much better protected by having this uniform code throughout Australia and a clearly defined process that will set the standards by which our society will abide. I again thank members of the opposition for their support. I intend to ask the other house to treat this bill as a matter of urgency. Mr R.F. Johnson: Demand it! Mr J.B. D’ORAZIO: The member for Hillarys would understand that we in this house cannot demand anything of our colleagues in the other place, but I will suggest to them that it is a matter of importance. I thank the members for Hillarys and Nedlands for their support on behalf of the opposition. I commend the bill to the house. Question put and passed. Bill read a third time and transmitted to the Council. *** House: Legislative Council CENSORSHIP AMENDMENT BILL 2005 Receipt and First Reading Bill received from the Assembly; and, on motion by Hon Kim Chance (Leader of the House), read a first time. Second Reading HON KIM CHANCE (Agricultural - Leader of the House) [3.28 pm]: I move - That the bill be now read a second time. The Western Australian Censorship Amendment Act 2003, which came into effect on 1 July 2003, made Western Australia a full participant in the national classification scheme. Western Australia’s legislation is now consistent with that of other states and territories. Importantly, as a result of these changes, the state is no longer involved in the censorship of products, and the purpose of its Censorship Act 1996 now mainly relates to the enforcement of classification decisions. Following these important changes to the act, it is now proposed to change the name of the legislation to the Classification (Publications, Films and Computer Games) Enforcement Act, so that the name better reflects the purpose of the act. This name is consistent with the names of the equivalent legislation in other states, particularly Victoria’s Classification (Publications, Films and Computer Games) (Enforcement) Act 1995, New South Wales’ Classification (Publications, Films and Computer Games) Enforcement Act 1995 and Tasmania’s Classification (Publications, Films and Computer Games) Enforcement Act 1995. The change to the name of the legislation was foreshadowed when the 2003 amendment act was debated in Parliament. The Western Australian Censorship Amendment Act 2003 also made a number of changes to the legislation to assist the Western Australia Police Service enforce the legislation. However, despite those changes, the Western Australia Police Service is still experiencing difficulties with certain forfeiture, evidentiary and infringement notice provisions contained in the Western Australian Censorship Act 1996. Members will be aware that the government is committed to assisting the Western Australia Police Service to crack down on the availability of child pornography, and to improve the efficacy of the enforcement provisions of the Western Australian Censorship Act 1996. I will now outline the measures in this bill that will address the problems identified by the Police Service in the investigation of child pornography. The bill also contains the necessary amendments in relation to evidentiary certificates and infringement notices, which will further assist the Police Service in its enforcement of the legislation. Child pornography - forfeiture provisions: On receiving information indicating that a person may possess child pornography on a computer system, the Western Australia Police Service child abuse unit generally takes out a search warrant under section 711 of the Criminal Code to investigate the disclosure. The police officers search the suspect’s premises and seize computers and any other property that may provide evidence. Upon the seizure of a computer, it is forensically analysed by the computer crime investigation unit of the Police Service. The unit searches the hard drive and gathers any images and evidence related to the alleged offence. It is usually not possible to charge the suspect with an offence relating to child pornography until the computer crime unit has completed its analysis. Section 117(2a) of the Censorship Act provides for the forfeiture of films classified RC or X, publications or computer games classified RC, or child pornography seized under this part if no person has been charged after 12 months. However, although this subsection applies to child pornography, it does not apply to material highly likely to be, or contain, child pornography. Moreover, it applies only to material seized under this part but not under a Criminal Code search warrant. Section 112(2) of the Censorship Act, which deals with entry, inspection and seizure, relates only to businesses and cannot be used for private premises. Although it was intended that section 117(2a) of the Censorship Act would apply to child pornography, the Police Service is required to comply with section 117(3). However, this subsection requires the police to apply for a summons within 60 days of seizure. Moreover, under section 117(6) of the Censorship Act, the court has the option of forfeiting the seized thing to the Crown if an offence has been committed, or ordering that the thing be returned to the person who possessed it prior to seizure. It does not provide the court with the option of returning the thing to the police to enable the investigation to be completed. As it typically takes more than 60 days for a computer to be analysed, subsections (3) and (6) of section 117 hinder police investigations of child pornography. To facilitate the investigation and prosecution of persons who possess child pornography on computers, this bill will overcome the problems being experienced by the Police Service regarding forfeiture. Evidentiary provisions: Section 141 of the Censorship Act provides that the Director or Deputy Director of the commonwealth Office of Film and Literature Classification can issue a certificate relating to the classification of a film, publication or computer game. Under section 87 of the commonwealth Classification (Publications, Films and Computer Games) Act 1995, the Director of the commonwealth Office of Film and Literature Classification can issue evidentiary certificates regarding actions taken or not taken under that act. However, courts in both Victoria and Western Australia have disallowed such evidentiary certificates as evidence to prove that a film had been classified at the time of seizure. In January 2003, a Western Australian magistrate held that under section 141 of the Censorship Act, although a section 87 certificate could be used to prove that a film was classified on the date the certificate was issued, it could not be used to prove that a film was classified on the date of the seizure or alleged contravention. This bill amends the Censorship Act so that section 87 certificates issued by the Director of the commonwealth Office of Film and Literature Classification can be accepted into evidence in relation to the classification of films, publications and computer games at the time of the alleged offence. Infringement notices: Section 117D of the act provides that a member of the Police Force or a designated person can issue an infringement notice to a person who has committed a prescribed offence under the act. At this stage, it is not intended for any person other than a police officer to be able to issue an infringement notice. Unlike other statutes, for example the Road Traffic Act 1974, the act does not currently enable a police officer to extend the period of payment for an infringement notice or allow a police officer - that is, a person who can issue an infringement notice - to withdraw an infringement notice. This bill amends the act to enable police officers authorised by the Commissioner of Police to extend the period of payment for an infringement notice or withdraw an infringement notice. New classification categories - films and computer games: As I mentioned, Western Australia is a full participant in the National Classification Scheme, which commenced in January 1996. Under this scheme, the commonwealth Office of Film and Literature Classification classifies publications, films and computer games pursuant to the Classification (Publications, Films and Computer Games) Act 1995, hereinafter called the commonwealth act. Western Australia, in conjunction with the other states and territories, adopts commonwealth classification decisions. Those decisions are enforced under the Western Australian Censorship Act 1996. The commonwealth act sets out the classification categories for publications, films and computer games. On 26 May 2005, the classification categories for films and computer games in the commonwealth act were amended to reflect the new combined classification categories for these articles. The new combined classification categories for films and computer games now cited in the commonwealth act are G, PG, M, MA15+, R18+, X18+ and RC. RC stands for refused classification. The use of combined classifications for films and computer games, based on the current classifications for films, will create simple and well-known classification bands for the community and assist parents in determining suitable material for their children. It will also create a more effective distinction between those classification categories that are advisory in nature - G, PG and M - and those to which legally enforceable restrictions apply - MA15+, R18+ and X18+. This distinction will be achieved by the removal of age references from the unrestricted classification categories and the use of age references for the restricted classification categories only. Importantly, although the bill renames the classification categories, it does not relax the content of material that is permitted within each classification, nor does it introduce an R classification for computer games. The Censorship Act refers to the previous separate classification categories for films and computer games. The classification categories for films in this legislation are G, PG, M, MA, R, X and RC. Computer games classification categories are G, G8+, M15+, MA15+ and RC. This means that the new classification categories in the commonwealth act are different from those in the Western Australian Censorship Act, and this will compromise the ability of the Police Service to bring a successful prosecution with regard to films and computer games. This bill amends the Western Australian legislation to incorporate the new combined classification categories for films and computer games so that they will be the same as those referred to in the commonwealth act. As it was not possible to amend the Western Australian Censorship Act by 26 May 2005, appropriate transitional provisions have been drafted in the bill so that the new combined classification categories for films and computer games are deemed to apply from 26 May 2005 after enactment of this legislation. I commend the bill to the house. Debate adjourned, pursuant to standing orders. *** The Eros Association Adult Retailers Look to Foreign Powers The 29th Sexpo in Sydney again saw the event crowned as the best attended expo in the country. With over 50,000 people - mainly couples - attending the event it is now more popular than State of Origin and more than twice as popular as a packed Hillsong evangelical crusade. Adult (sexual) retail is the fastest growing retail sector in the country with the number of adult shops growing from 180 in 1992 over 500 today. Eros Association spokesperson Fiona Patten said that the popularity of Sexpo showed governments and legislators there had been a huge change in the way people access adult material over the last decade. The vast majority of people who shop in adult shops are couples, which shows that adult material is intrinsic to their sex lives, she said. As a result of continued state government bans on federally classified X rated films, Ms Patten said that the adult retail industry was now beginning a series of legal challenges to these bans on the grounds that they contravene the Human Rights (Sexual Conduct) Act. The first case was held in Townsville Magistrate's court recently where it was argued that state laws which outlaw the sale of federally classified material to adults from adult shops are invalid because they are inconsistent with section 4 Human Rights (Sexual Conduct) Act 1994 (Cth) and Article 17 of the International Covenants on Civil and Political Rights. The section provides that sexual conduct, involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or territory to arbitrary interference with privacy. The CEO of Impotence Australia, Brett McCann, supported this claim by stating that there is considerable evidence that adult shops and erotic films and publications play an important role in Australia's sexual well being. He said adult retail shops have access to populations who are either hard for traditional health services to contact or who don't perceive themselves as a health risk. I believe that the supply of erotic publications and films by adult shops is a legitimate activity and important in meeting many consumer's sexual needs, he said. Australian sex therapists will often recommend erotic films for therapy however they do not provide them but rely on the adult retail sector to do so. Ms Patten said that government bans on selling X rated material were very similar to Tasmania's old sodomy laws which were overturned under this legislation in 1994.
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| Updates | July - August 2005 |
