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Thursday, 28 March 1985
Page: 948


Senator ZAKHAROV(12.03) —I must ask for the indulgence of the Senate. This matter was brought on at very short notice. I had not intended to speak at this stage. Nobody else on the list of speakers was in the chamber. In speaking now I am, therefore, a little disorganised. I apologise for that. I start by thanking the staff of the Select Committee on Video Material for the assistance that they gave to the Committee. It has not been an easy Committee to be on or to service because of the short time available to report and because of the fact that we were meeting right through the Christmas break. I am sure that that was a strain on the staff as well as on Committee members. I would also like to thank the people who made submissions, particularly those who made submissions of some substance, and people in the community who have gone to the trouble to dig out reference material and send it to us concerning research overseas.

I have dissented from those parts of the report which make observations about the alleged unsatisfactory state of the law and from the recommendation that a moratorium be imposed on the sale or hire of X-rated video material in the Australian Capital Territory until such time as the Joint Select Committee on Video Classification is set up-in fact, it was set up last week-and brings down its report later this year. That makes it sound like a very short dissenting report. I have also-I will not have time to cover it here-considered some of the other material which is included in the majority report with the intention of backing up its recommendations. It needs to be pointed out very clearly at the outset that the Senate Select Committee was in existence for too short a period to examine all the submissions and it restricted itself almost entirely to two paragraphs only of the terms of reference. These paragraphs refer to the operation of the relevant Australian Capital Territory Ordinance and the Customs regulations. Among other terms of reference which were not explored was one which I would have thought was the most important. In fact, at various stages during the hearings I raised the point that we ought to be looking at it with some priority. That term of reference was 1 (e). It related to the likely effects on people, especially children, of exposure to violent, pornographic or otherwise obscene material. The majority report recommended a moratorium as if the Committee already knew of those effects, although its members have, presumably, read the submissions which show that the evidence is, at best, equivocal. I have had an interest in this area for some years and I have avidly read all the evidence-I say evidence, not just rhetoric-on this issue. I have not come to a conclusion either way, because I do not think the evidence is conclusive.

I have dissented from those parts of the report which make observations about the alleged unsatisfactory state of the law and the recommendation that a moratorium be imposed on sale or hire. I will return later to the question of the moratorium. The present state of the law was addressed by the Committee for most of the time it was in operation. Those who complain about the present unsatisfactory state of the law should look at the law before the amendments were made last year. Those amendments put a prohibition at the Customs barrier on material depicting child pornography, bestiality, material containing detailed and gratuitous depictions in pictorial form of acts of considerable violence or cruelty or explicit and gratuitous depictions in pictorial form of sexual violence against non-consenting persons and the category of promotion or incitement of terrorism or promotion or incitement of the misuse of certain drugs. That is not only more explicit than the law in existence previously, in its statement of what the community finds objectionable and does not want to enter the country, but also it spells it out in a form which makes it easier for the law to be administered, and that is also important. Changes to the Australian Capital Territory Ordinance last year tightened up control on the display and sale of videos, which brought the law into line with the provisions already applying to print material in the States. In other words, it imposed greater restrictions than there had been in the Australian Capital Territory.

There have always been problems with laws in the censorship area. There are difficulties of definition, as well as difficulties with satisfying a very large range of community attitudes. I believe there are difficulties in the present state of the law-that is, as it was amended last year. For example, both Senator Walters and I have asked witnesses on several occasions whether consent to behaviour depicted refers to the actor or the character who is the subject of the behaviour. The Attorney-General recognised those difficulties in a statement last year that changes would probably be necessary and further tuning would be needed. From memory, he said that the Senate Committee would look at those things.

However, I do not believe these difficulties should be used as an excuse for a moratorium. I return to that question now. The majority report refers to the 'weight of opinion' and 'majority of the community' as part of its reasoning for justifying the moratorium. We had a very large number of submissions-the number was given in the tabling statement-but many of those submissions were pro forma letters. When I say 'pro forma', I do not mean that they were necessarily photocopied letters that people had signed, but the wording was identical in many cases. Most of those letters did not give any supporting evidence; they just stated an opinion. The Committee in its wisdom decided to accept those as submissions, but an expression of opinion does not really add much to the evidence which a select committee needs to have if it is to make a reasoned and logical judgment at the end.

I have looked at various sources of material, as well as the material presented to us, and there is nothing which states the present weight of opinion or majority community view in Australia at the moment. It certainly cannot be substantiated from the material we have received. I quote briefly from my dissenting report, which puts all of that more succinctly:

. . . while the fact that an 'overwhelming majority' of submissions to the Committee opposed 'X' and 'ER' indicates some concern amongst sections of the community about such material, it is not necessarily an indication of community opinion in general. The numbers are no guide whatsoever to public opinion on the subject. They merely show that a campaign playing on the fears of the uninformed can easily result in a mass write-in . . . the debate about censorship in a democracy should not, in any event, be dictated by opinion poll. In a democracy minorities also have rights, both of freedom of expression and freedom to see, hear and read what may not appeal to the majority. This issue has not been addressed in the majority report.

I referred to the atmosphere at the time this Committee was set up. It was that atmosphere which led-it is hard to say what is the cause and what is the effect-to that flood of letters which, in the early stages at least, mainly put one point of view without any argument attached as to why people held that point of view. That concerned me very much. It seemed to be a regional thing. The letters I received in Victoria were from particular areas; it was not a widespread, across the board community reaction. I am sure all senators are well aware of how easy it is to go along to the meeting place of an organisation, say, give people one side of the story and ask them 'Will you write in and say that?' or, perhaps, give them forms of words to use when they make so-called submissions. The argument of what the community wants is not substantiated. If it were, I do not believe that the majority necessarily has the right to say that the individual will see, hear or read, particularly in the case of videos, in the privacy of his or her own home.

In the same lead-up to the setting up of the Committee we had a most unfortunate case where a young person in the Australian Capital Territory was, to my mind, set up in what was virtually entrapment in order to prove that children under the age of 18 could obtain X-rated videos. We had some evidence from the police on that matter. From what I have seen, it reflects nothing but bad taste, to say the least, by the people who used that young person in that fashion. Yet, the same people and the same sorts of groups in the community say that they want to protect young people from pornography. It seems to me to be rather hypocritical for the same people to say that, yet they encourage the breaking of the law by someone who is not entirely responsible for his or her own actions, who is asked to do something by a parent in order to entrap.

I would have been much happier if this report had not contained any recommendations, because I do not believe the Committee sat for long enough or considered enough of the terms of reference to draw any conclusions at all. I think the call for a moratorium is unfortunate. I would not usually hope that a joint committee would ignore a select committee, but in this case I hope it will because I think that this is a move which has been made in haste and perhaps, in some cases, with the wrong motives. I do not think it will be for the good of the community in the long run. I also think that there would be very great difficulties in implementing a moratorium if it were decided that that should happen. There will be an outcry from business people, for example, who will be faced with very great changes if there is a large amount of material in the X-rated category being hired. They will face very great change to their business and possibly to their patterns of employment. I do not think that we considered enough evidence to come up with any recommendations at all, and certainly not that recommendation.

The last part of the report, which is a general discussion of the issues of censorship and particularly of the censorship of video material, is very useful. Those are the sorts of issues that I hope the Joint Committee will discuss before it goes into the detail of discussing submissions which might lead to action. In other words, I think that Committee members should be quite clear as to their own terms of reference, as well as the Committee's terms of reference. They should recognise that they, just like Customs officers, the Attorney-General or anyone else, cannot apply an objective test in this area. It is a subjective area. Pornography is very much in the eye of the viewer or the ear of the listener. What I regard as pornographic someone else may not; what I regard as erotic someone else may regard as hard-core pornography. Too often in this debate people suppose that they can make an objective test. Sometimes the objective test relates to an appeal to what might be called a higher authority, such as the Bible, but it must be remembered that not all people in the community accept that authority. I think that people's moral attitudes are their own business and as long as material is not demonstrably harmful, and if there is no strong evidence that it could be harmful, it should not be censored. I believe that the present regulations and ordinances cover that fairly adequately, especially with the new wording that was added last year.

It is interesting that one of the arguments that were used in some of the evidence given to the Committee was that women would object. I am well known in my State as a feminist and I am a person to whom women would normally bring such matters. I have had no representations at all from women about the new regulations. Certainly, I had representations about the old regulations, but now that the wording has been changed there has been no community reaction that I know of from the women's movement.

The question of uniformity has been used also as a reason for having a moratorium. Again last year-and I am relying on my memory here-there was some consultation at some length on several occasions between State Ministers and the Federal Minister about this matter in an effort to get a uniform view. Also from memory, I believe that some uniformity was arrived at in terms of looking at the law again and looking at changes in State laws to bring them into line with the Australian Capital Territory. What happened then was that the same sort of campaign was launched by certain sections of the community in the States and some politicians got cold feet and stepped back from the line they had taken at the ministerial council meetings. Fairly recently, at least in some States, there has been a move away from X-rated movies. I do not really believe that uniformity is an end in itself. I do not find any difficulty in the fact that numbers of people in Victoria travel frequently across the border to play the pokies, for example. Nor do I find it anomalous that Queensland has very different laws about what one can read and what one can sell in printed matter from the other States. That is Queensland's business. I do not think that we should say that people in the Australian Capital Territory should be deprived of something which is very likely to be of benefit to many of them. I know from my own work in the area of psychology that many people with sexual dysfunctions, for example, find it very helpful, rather than harmful, to have access to what might be called soft pornographic material. I do not think that we should jump in, even temporarily and with all the disruption that that would cause, to deprive Australian Capital Territory citizens of their right to see and hear what they wish within the laws as they are framed at present.

I do not think that we have the right to impose judgments about people's values. In the present laws and the present Customs regulations we have moved to protect people from material that most people would find objectionable. I guess there is a civil libertarian argument that one should not even do that, but I do not go along with it. In the Australian Capital Territory we have certainly moved to give greater protection to minors. This did not exist before. We have heard the argument on past occasions about children who will see video material that their parents have hired. As parents, we must all take responsibility for what goes on in our own homes. I do not consider that it is responsible for a parent to leave a whisky bottle around where there are children. Similarly, I do not consider it responsible for a parent to leave an X-rated movie around, but I do not think that there is any real difference between the two cases. One could say that a parent who leaves prescription medicines around is probably far more likely to cause harm to the child than the parent who leaves an X-rated video movie around. That is in the hands of the parents and we are certainly not going to ban whisky or prescription drugs just on the supposition that children might get hold of them.

I wish to make a brief comment about some evidence that came to my mind in relation to that matter. A comment was made to the Committee by the Customs officers in their submission. They said that we should tighten up on the import of videos at the Customs barrier because, after all, a video case might contain drugs. That is the most devious argument that I have heard for a long time. Anything in one's luggage might contain drugs. Are we to say to everyone: 'You can't bring in anything at all because you might have drugs secreted in it'? That is an example of some of the very wobbly arguments that we have heard on this matter.

I commend my dissenting report to honourable senators. I hope that they will read it, as well as reading the majority report. Again, I apologise for the scrappiness of my delivery.