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Legislative Assembly for the ACT: 1997 Week 13 Hansard (4 December) . . Page.. 4534 ..

MR HUMPHRIES (continuing):

The remaining provisions of the Bill, save for the last, which I will deal with shortly, relate to the amendment of the provisions concerning the return and destruction of seized films. The proposed amendments introduce provisions to require persons from whom a film is seized to provide the Registrar of X Film Licences with satisfactory proof that a film is classified X, R, MA, M, PG or G before the registrar is required to return the film. A person can satisfy the registrar that a film is so classified by providing a classification certificate if the film is already classified or by submitting the film for classification to the Office of Film and Literature Classification and providing the subsequent classification certificate. A person will have 120 days to provide such evidence.

It is appropriate that the responsibility to prove the classification status of a film rest with the person from whom the film was seized, because whether a film has been classified will be peculiarly within the knowledge of that person. That knowledge obviously cannot be held by the registrar and, in the absence of evidence to the contrary being provided to the registrar within what is, at 120 days, a generous period, the registrar should be entitled to assume that there is no such evidence. Were the onus to prove that seized films are unclassified to be placed on the registrar, the costs and difficulties associated with doing so would render the enforcement system unviable.

A period of 120 days for the provision of satisfactory proof is included in the Bill. However, there is provision to allow the registrar to extend this period, either on the application of the person from whom the film was seized, before the period expires, or on the registrar's own motion, at any time, if such an extension is considered reasonable. This will allow circumstances to be appropriately addressed where the classification of a seized film may not have been able to be completed within the 120-day period.

Members will note that, strictly speaking, the provision also allows the registrar, by using the power to grant an extension to the period of 120 days, to apply the provisions to films seized prior to the commencement of the proposed legislation. If it were otherwise, seized films which are not classified would have to be returned to licensees, even where they have been convicted by a court of an offence in relation to the films. In any event, persons from whom films have already been seized will not, at the end of the day, be disadvantaged, because under the amending legislation the registrar will be required to give them notice providing them with the opportunity to satisfy the registrar that the films are classified.

The amendments will ensure that only classified films are returned. I believe that this is the only acceptable outcome, as to require the registrar to return a film that is unclassified would, in my view, directly undermine the regulation of X film licensees. A similar provision applies to circumstances where no proceedings have been taken against the person from whom the film was seized or where the proceedings have been taken and the charge has been dismissed. I acknowledge that not to return a film in such circumstances is unusual, but I do not believe that it would ever be appropriate to return to a person a film that the registrar believes is not classified, given that persons from whom films are seized are given at least the minimum 120 days to prove that seized films are in fact classified.

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