Over the weekend, I went games shopping, and spotted something on sale that, legally speaking, shouldn't have been there: a game that hadn't been classified in Australia, alongside others that were refused classification.
Having noticed last week that UK second-hand games (and tech) retailer CEX had set up shop in Australia, I wandered into my local store to peruse the goods, especially as some Kotaku commenters had noted how much UK stock they had. I browsed, picked up a few cheap DVDs (including Dara O'Briain's This Is The Show, with that excellent Metal Gear Solid routine) and then spotted something on the shelves that rather surprised me.
Manhunt 2 for Wii.
There's a problem there, and it's this; Manhunt 2 was never submitted for classification in Australia, which, technically speaking, makes it illegal to sell in Australia. A quick stock check from CEX's online checker reveals it's not the only title that falls under that banner; they're also selling second-hand copies of the original Manhunt, which was at first released, then banned after outcry and the most recent iteration of Mortal Kombat, which was refused classification.
I'm pretty sure that's a matter of omission rather than commission in their case, given the copy of Manhunt 2 I saw would have cost me $8. Based on the reviews at the time, that might be about ten bucks too much, but that's a digression. I asked the in-store staff about the games ratings and the stuff they had on shelf, and got a mixed response; one staff member said she'd have to refer it to her manager, while the other was sure that it was OK "because we've got an R18+ rating now".
Sadly, that's not so; not that we don't have an R18+ rating (although Queensland has been late to the game in terms of legislation), but that ratings from overseas automatically carry over to Australian ratings. Any game that wants to carry the Australian R18+ rating needs to be rated by the Australian ratings board, not an overseas one.
I've tried repeatedly to contact CEX Australia, but this too proves to be a difficult thing; there's a web form and email address (no luck as yet) but no listed phone number; the head office appears to be tied into the Rouse Hill store, but a call to the contact phone number for the shopping centre that it's located in led me to a call representative who informed me that CEX has "decided not to have a contact phone number; you'll have to make any enquiries via their web site". Naturally, if anyone from CEX is reading this, I'd love a chance to chat.
Where all this gets interesting — and by interesting, I mean rather painful — is in the potential penalties that apply. Out of interest, I spent some (rather dry) time reading over the amended legislation. It varies state by state, as we've covered before, but as an example, in the ACT — typically one of the more broad-minded locations in terms of available material, and somewhere that CEX trades — the guidelines in the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 state that:
38 Sale of computer game or demonstration in public place (1) A person commits an offence if— (a) the person— (i) sells a computer game; or (ii) demonstrates a computer game in a public place; and (b) the computer game is not classified. Maximum penalty: 100 penalty units, imprisonment for 1 year or both.
In New South Wales, it's similarly worded
27 Sale or public demonstration of unclassified or RC computer games prohibited A person must not sell or publicly demonstrate:
(a) a computer game classified RC, or (b) an unclassified computer game. Maximum penalty:
in the case of an unclassified computer game that is subsequently classified G, PG or M—10 penalty units for an individual, 20 penalty units for a corporation in the case of an unclassified computer game that is subsequently classified MA 15+—20 penalty units for an individual, 50 penalty units for a corporation in the case of a computer game classified RC or an unclassified computer game that is subsequently classified RC—100 penalty units or imprisonment for 12 months for an individual, 250 penalty units for a corporation.
One penalty unit is worth $110 for individuals in NSW and the ACT, but corporations in the ACT cop $500 per penalty unit. That means that it could cost up to either $11,000 or a staggering $50,000 per offense, which doesn't really make selling a game for $8 all that worthwhile; again, I'm not intending to moralise here. Indeed, personally that feels a little harsh to me, but then I'm not a legislator, and I suppose it's meant to be punitive.
Technically, CEX might also be subverting the law as it relates to classification markings, as most of its current stock appears to be UK-classified, and that could confuse; again, from the ACT version of the act:
(3) A person commits an offence if— (a) the person sells a classified computer game; and (b) the container, wrapping or casing in which the computer game is sold displays a marking that suggests that the computer game is unclassified or has a different classification. Maximum penalty: 30 penalty units.
Ouch. The ACT version of the act is a little blurry about personal possession (but then I'm no lawyer), as it mixes us the terms "premises" and "personal premises" a little, but it's even theoretically feasible to hit heavy penalties for possession of RC or unclassified games, just in case you were thinking of quickly getting a copy in-store:
Possessing unclassified or RC computer games and other computer games (1) A person commits an offence if— (a) the person possesses an unclassified computer game or a computer game classified RC at any premises; and (b) classified computer games are sold or demonstrated at the premises. Maximum penalty: 100 penalty units, imprisonment for 1 year or both.
Now, that's the law as it stands in the ACT; the New South Wales Law as I read it is more concerned with possession by businesses:
37 Possession or copying of computer games for the purpose of sale or demonstration (1) A person must not possess: (a) a computer game classified RC, or (b) an unclassified computer game that would, if classified, be classified RC, with the intention of selling or demonstrating the computer game. (2) A person must not copy: (a) a computer game classified RC, or (b) an unclassified computer game, with the intention of selling or demonstrating the computer game or the copy. (3) In proceedings for an offence under this section, evidence that a person made or possessed 10 or more copies of an unclassified computer game is prima facie evidence that the person intended to sell or demonstrate the computer game. Maximum penalty: 100 penalty units or imprisonment for 12 months for an individual, 250 penalty units for a corporation.
Once again; I'm not a lawyer, and if anyone with more formal training cares to comment, I'm all ears; this is how I'm interpreting it as a matter of interest — especially if possession of an RC game could cost you $11,000!
What's the practical uptake, though? It's very clear that personal importation (whether digitally, via overseas stores or simply brought back in within your luggage) of RC games material happens an awful lot in Australia, and anecdotally it appears that at an individual level it usually appears to end up with the offending items confiscated and a warning applied. That doesn't mean, however, that you'd never be prosecuted — simply that it hasn't happened as yet.