With the introduction of the R18+ classification for computer games at the beginning of this year, we're ready for the sale of new games targeted at adult audiences in Australia. One question has been what this means for old games that were not released under the old classification scheme.
The message from the government is that the new classification scheme only applies to new games and old games won't automatically be allowed into the country, which appears to be mostly true. Looking at this more closely, there are two categories at play here:
- Games that were submitted to the Australian Classification Board and received a Refused Classification (RC) rating, or received such a rating on review. Well known examples include Manhunt, Marc Ecko's Getting Up and the recent Mortal Kombat.
- Games that have never been submitted for classification. Some examples include Manhunt 2 (I suppose they didn't think it was worth trying), and Telltale's The Walking Dead series.
For most states, these two categories are essentially the same in the eyes of the law. For instance, the NSW Classification Enforcement Act says in section 27:
A person must not sell or publicly demonstrate:
(a)a computer game classified RC, or
(b)an unclassified computer game.NSW Classification Enforcement Act
So the NSW law treats the two categories the same. Western Australia is often seen as a bit more strict since it also criminalises possession of RC material rather than just sale. I was a bit surprised to note that it actually seems a bit more lenient with respect to unclassified material though.
While there is a similar requirement that games must be classified if they are to be sold or demonstrated in a public place (section 82), it might not extend to private sales. Once you're out of a public place, you'd still be bound by section 84 of the WA Classification Enforcement Act:
(1) A person must not sell or demonstrate -
(a) an unclassified computer game that would, if classified, be classified RC; or
(b) a computer game classified RC.
Penalty: $15000 or imprisonment for 18 months.WA Classification Enforcement Act
So it isn't enough for the game to be unclassified to fall foul of this section: it only triggers if the content needs to be extreme enough to warrant an RC classification. And that would be determined according to the current classification guidelines.
The same language is used in section 89, which deals with the possession of RC games.
Imports
So, it is not necessarily illegal to possess an unclassified game in WA. But to possess one you will probably need to import it. And imports are subject to the federal customs regulations rather than state classification enforcement laws (the same as for all other states).
Such imports are potentially covered under the "Pornography and other objectionable material" class of prohibited and restricted imports. The guidelines on what is determined to be objectionable are described as "consistent with the RC criteria in the National Classification Code and the Classification (Publications, Films and Computer Games) Act 1995", although you can read the full details here. It is interesting to note that they reference the act rather than particular decisions made by the classification board, so you may be able to argue that all imports should be judged against the new guidelines.
Is it worth it?
So while it may be legal to import/use some of these old games, is it really worth pursuing this if Customs intercepts your shipment? You should probably talk to a lawyer if you really care. I suspect that they would tell you that it isn't worth it, since giving up and letting them destroy your package will probably result in no fine, while if you contest it they might push for maximum penalties if you lose.
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