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From censorship to classification



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FROM CENSORSHIP

TO CLASSIFICATION

An Address By

The Attorney-General

The Hon Daryl Williams AM QC

Murdoch University

11.30 am

Friday 31 October 1997

Check Against Delivery

1. I am very pleased to be here today to discuss one of the more interesting and

controversial areas in my portfolio - that of censorship or, as it is more accurately

referred to these days, classification.

2. The issue of censorship is one about which everybody in the community has

definite views; very often they don’t coincide with each other or with other vocal and

influential groups within the community.

It is therefore the source of considerable tension betweeen points of view that

compete for ascendancy with much energy and enthusiasm.

It forms a significant part of the correspondence I receive as the responsible Minister.

3. These letters either upbraid me for not stemming the tide of distasteful films,

videos and publications coming into the country, or chide me for not allowing people

to make absolute choices about what they wish to read, hear and see.

4. It is an area, that has embroiled Governments for centuries.

For much of the past - and in some countries even today - there has been and still is

an emphasis on the censorship of political ideas and of political expression.

We can all be particularly grateful that Australia is a tolerant society, free from

religious and political oppression.

Fortunately in Australia today we do not have a system of political censorship.

5. We have a system which classifies material into appropriate categories rather

than looking for reasons why it should be banned.

Underpinning that system are the basic premises that adults should be able to read,

hear and see what they wish, and that the views of a reasonable adult should be

applied in making classification decisions.

6. Since the 1970s there have been profound changes in the approach to the

classification of films and publications in Australia.

In many respects these changes have reflected changes in society generally and the

way we view individual rights and freedoms.

From Censorship to Classification

T he Passage o f the C lassification (Publications, Films a n d C om puter G ames) Act 1995

7. The culmination of this period of change was passage through the Federal

Parliament of the Classification (Publications, Films and Computer Games) Act

1995*.

Complementary State and Territory Legislation was also enacted, reflecting the co­

operative nature of censorship administration throughout the Commonwealth.

The Commonwealth Act and most State and Territory legislation commenced on 1

January 1996.

8. The passage of the Commonwealth Act was significant in that it was the first

time since federation that the Federal Parliament had been called upon to pass

substantive legislation dealing with the classification of what we read, hear and see.

It passed with the support of all political parties.

9. As the new legislative scheme has now been in operation for nearly two years it

is appropriate to reflect on the background to it, the policy that underpins it, and how

it operates in practice.

10. The Commonwealth has always played a national role in censorship of material.

However, for most of this century this has been through customs regulations under

the Customs Act 1901.

It also attempted to provide a model for a national scheme for the classification of

videotapes and publications in 1984 through an Ordinance for the Australian Capital

Territory.

T he need for a new legislative scheme

11. It is difficult to appreciate the new scheme and the benefits it confers without

some understanding of what preceded it.

Act No 7 of 1995

From Censorship to Classification

12. In brief, the Customs (Prohibited Imports) Regulations, and the Customs

(Cinematograph Films) Regulations for films for public exhibition, prevented the

importation of films or publications if they offended against the criteria set out in

those regulations.

Once imported, the circumstances in which the material could be sold, exhibited or

hired fell to be determined by State and Territory legislation.

Films were classified under State and Territory legislation by the Commonwealth

Censorship Board established under the Customs (Cinematograph Films)

Regulations.

An appeal lay to the Film and Literature Board of Review also established under

those Regulations.

P ublications

13. For publications the scheme was voluntary.

Classification officers - who were Commonwealth public servants - classified

publications for some jurisdictions with varying avenues of appeal while other

jurisdictions maintained their own schemes.

14. The effect of the voluntary scheme was that it was not an offence, except in

Queensland, which did not allow restricted publications, to sell a restricted

publication if it was classified and the conditions attached to its sale observed.

If it was unclassified it was only an offence if it fell within the definition of an

objectionable publication under State and Territory legislation and, in some

jurisdictions, if it was not sold in accordance with the conditions that would have

applied if it had been classified.

15. Clearly the so called ‘national scheme’ that existed prior to 1996 was complex

and lacked real uniformity.

It was a mess.

From Censorship to Classification

16. In the case of films, each decision of the Classification Board was, in fact,

made under up to 12 separate pieces of legislation.

The problems for both Boards were compounded by the numerous differences

between each set of legislation including the criteria under which decisions were

made, the matters to be taken into account in making a decision and procedures for

classification.

For publications, it was not unusual for a classification officer to be required to make

different decisions for different jurisdictions in light of the criteria to be applied2.

17. It was against this background that the then Attorney-General, the Hon Michael

Duffy, gave a reference in 1990 to the Australian Law Reform Commission on how

censorship laws could be made more uniform and efficient while giving effect to the

policy agreed between the Commonwealth, States and Territories.

In other words the reference was about procedure and not policy.

The ALRC Report

18. The Law Reform Commission presented its report on Censorship Procedure in

1991.

The Commonwealth Act followed closely, but not completely, the recommendations

contained in that report and also had the benefit of a process of close consultation

between the States and Territories.

19. The Commonwealth Act adopts the Commission’s preferred option for reform3 -

with one variation , as agreed to by Commonwealth, State and Territory Censorship

Ministers, which involves treating the Australian Capital Territory as a full partner.

This option involves a Federal Act for the Australian Capital Territory, based on the

Territories power in section 122 of the Constitution, establishing the classification

bodies and setting out the procedure for classification.

The option also involves State and Territory legislation adopting, through

enforcement laws, the classifications given to particular publications, films and

computer games under the Act.

2 The Australian Marijuana Grower’s Guide: Refused classification for the Northern Territory, Victoria and the Australian Capital Territory, Category 1 Restricted for New South Wales and South Australia.

3 The Law Reform Commission: Report no 55: Censorship (1991) para 2.13 From Censorship to Classification

Classification decisions are to be made in accordance with a code agreed between

Commonwealth, State and Territory Censorship Ministers.

20. In putting forward this recommended option, the ALRC commented that it:

‘ . . . accurately reflects, and maintains, the balance of responsibilities

that has been arrived at between these jurisdictions. It recognises that,

in relation to the classification criterion and categories, the

Commonwealth, the States, and the Northern Territory are equal

partners, and that policy on these matters is derived from agreement

between all jurisdictions. There will be a single procedure, avoiding

the overlaps and duplications that presently exist, and that classifiers

will derive their powers from a single source, removing the difficulty

that they sometimes face now of conflicting legislation from different

jurisdictions.’4

T he C om m onw ealth Act

21. The Commonwealth Act establishes the Classification Board and the

Classification Review Board.5

The Classification Board’s role is to classify publications, films and computer games

submitted to it.6

Not surprisingly, the Classification Review Board reviews decisions of the

Classification Board7.

The Act provides that, in appointing members to both Boards, regard is to be had to

the desirability of ensuring that the membership of the boards is broadly

representative of the Australian community.

Further, the Commonwealth Minister must before recommending the appointment of

the members, consult with participating State and Territory Ministers8

22. Under the Act, with certain limited exceptions, all films are classifiable9.

4 ibid para 2.13 5 sections 45 and 72 respectively 6 sections 13, 14 and 17 respectively 7 section 43 8 sections 48 and 74 respectively 9 section 5

From Censorship to Classification

A similar regime exists for computer games10 1 1 .

23. For publications, the previous voluntary scheme is replaced by a partially

compulsory scheme under which publications are classified by the Classification

Board and not departmental officers as previously.

A partially compulsory scheme is achieved by State and Territory legislation making

it an offence to sell a submittable publication which has not been classified.

“Submittable publication” is defined under the Act to mean:

‘An unclassified publication that, having regard to the code and

classification guidelines to the extent that they relate to publications,

contains depictions or descriptions of sexual matters, drugs, nudity or

violence that are likely to cause offence to a reasonable adult to the

extent that the publication should not be sold as an unrestricted

publication’n.

24. As the publications scheme is only partially compulsory the Act enables the

Director of the Classification Board to give a notice to a publisher requiring the

publisher to apply for classification12.

25. The Act also allows for approval of advertisements for publications, films and

computer games and, because that scheme is voluntary, gives power to the Director to

call in advertisements for approval13.

26. The Act provides that publications, films and computer games are to be

classified in accordance with the National Classification Code, set out in the Schedule

to the Act, and the Classification Guidelines14.

The Code and the Guidelines may be amended from time to time with the agreement

of the Commonwealth Minister and each participating State and Territory Minister15.

27. The National Classification Code sets out in the broad criteria for each of the

classification categories.

10 section 5 11 section 5 12 section 23 13 sections 29 and 30 respectively

14 section 9 15 section 6 and 12 respectively

From Censorship to Classification

The details of what material falls within each of those categories is provided by the

more comprehensive Classification Guidelines.

28. Other matters to be considered in making classification decisions are also set out

in the Act.16

29. The Act sets out in ascending order the types of classification for publications,

films and computer games17.

30. Review of a decision of the Classification Board lies to the Classification

Review Board at the instigation of: the Commonwealth Attorney-General; the

applicant for classification; the publisher of the film, publication or computer game

concerned, and any person aggrieved by the decision.

If a participating State and Territory Minister asks the Commonwealth Minister to

apply for review of a decision the Commonwealth Minister must do so.18

State a n d T erritory legislation

31. The other part of the legislative package recommended by the ALRC is to be

found in the State and Territory enforcement provisions.

This legislation, in effect, requires the submission of films, publications and

computer games to the Classification Board for classification under the

Commonwealth Act.

It spells out the consequences, in each jurisdiction of the different classifications that

are open to the Board for films, publications, and computer games,

while at the same time backing this up with an extensive offence regime.

32. The State legislation may also include provisions allowing jurisdictions to

override the classifications given by the Classification Board to a film, publication or

computer game.

8

16. section 11. These are: a) the standards o f morality, decency and propriety generally accepted by reasonable adults; b) the literary, artistic or educational merit (if any) of the publication, film or computer game; c) the general character o f the publication, film or computer game including whether it is of a medical, legal or scientific character; and d) the persons or class o f persons to or amongst whom it is published or is intended or likely to be published. 17 section 7. These are: for publications, Unrestricted, Category 1 Restricted, Category 2 Restricted and “RC”

(Refused Classification); for films, “G” (General), “PG” (Parental Guidance), “M” (Mature), “MA” (Mature Accompanied), “R” (Restricted), “X” (Restricted) and “RC” and for computer games, “G” (General), G8+ (General), M(15+) (Mature), MA(15+) (Mature Restricted) and RC. 18 section 42

From Censorship to Classification

This is currently the case for Western Australia, South Australia, Tasmania and the

Northern Territory for films and computer games and for South Australia and the

Northern Territory for publications.

33. All jurisdictions have participated in this scheme for films and computer games.

Western Australia, uniquely, decided to replicate the relevant provisions the

Commonwealth Act in its legislation and then confer functions on the

Commonwealth bodies by agreement between the Commonwealth and Western

Australia.19

34. Publications did not fare quite as well.

Western Australia and Tasmania maintained their own schemes.

Queensland adopts classification decisions made for publications under the

Commonwealth Act.

However, it also permits its Publications Classification Officer to make classification

decisions which, if made before a classification decision under the Commonwealth

Act, prevail over those latter decisions.

Despite this, the publications regime is a vast improvement over the scheme that

preceded it.

35. The Act also repealed the Commonwealth controlled ACT Classification of

Publications Ordinance 1983 and the Customs (Cinematograph Films) Regulations20.

Regulation 4A of the Customs (Prohibited Imports) Regulations was amended to

bring the criteria set out in the Regulation, which provide the grounds for refusing to

allow the importation of a publication, film, or computer game, into line with the

refused classification criteria in the National Classification Code.

The criteria in Regulation 4A were narrower than the classification criteria for

‘refused classification’ in the then State and Territory censorship legislation.

36. Although it is not perfect, the success of this exercise in co-operative federalism

should not be under-rated.

It is an almost classic example of how a Federal scheme can operate successfully to

meet national imperatives while at the same time retaining a degree of local control.

19 Censorship Act 1996 (Western Australia) section 126 20 section 98 of the Commonwealth Act From Censorship to Classification

10

37. I would like to digress briefly to refer to television and on-line services.

T elevision

38. The Classification Board, and its predecessor the Censorship Board, have not

been involved in the classification of television programs since the commencement of

self-regulation within the television industry in 1986.

The self-regulatory scheme under the Broadcasting Services Act 1992 is administered

by the Australian Broadcasting Authority.

39. Television programs for broadcast free-to-air and on Pay TV channels are

classified by classification officers employed by the television networks21.

The content standards underlying such classification activities are set out in industry

codes of practice which are registered with the Australian Broadcasting Authority.

The Australian Broadcasting Corporation and the Special Broadcasting Service

Corporation operate under their own legislation22 and their codes of practice contain

similar classification standards.

40. Classification standards23 in such codes of practice are based upon the

Classification Guidelines for Films and Videotapes24.

21 Television classifiers classify all television programs and films for broadcast. There is no requirement for films broadcast on television services to be classified by the Classification Board. Many films are modified for broadcast on television. Subsection 7(1 )(g Schedule 2 o f the Broadcasting Services Act (the BS Act) prohibits a licensee from broadcasting a film which has been classified ‘RC’ or ‘X ’ by the Office of Film and Literature Classification, and subsection 7(i)(ga) of the Schedule prohibits a licensee from broadcasting a film which has been classified ‘R’ unless the films have been modified in accordance with paragraph 123(3A)(b) of the BS Act [see footnote 24], Similar provisions relating to subscription television and community broadcasting services are set out at subsection

10(f) and 10(g) and 9(g) and 9(ga), respectively of Schedule 2 o f the BS Act. Special provisions apply to ‘R’- rated material on subscription broadcasting services see section 10(g) 22 The Australian Broadcasting Corporation Act 1983 and the Special Broadcasting Service Act 1991 respectively 23 Standards applying to children’s programs and Australian content are determined by the ABA in accordance with

section 122 o f the BS Act. 24 Subsection 123(3A) of the BS Act provides that television broadcasting licensees must ensure that: (a) for the purpose of classifying films - those codes [of practice] apply the film classification system administered by the Office o f Film and Literature Classification; and

(b) those codes provide for methods of modifying films having particular classifications under that system so that: (i) the films are suitable to be broadcast; or (ii) the films are suitable to be broadcast at particular times; and (c) those codes require that films classified as “M” may be broadcast only:

(i) between the hours of 8.30pm on a day and 5am on the following day; or (ii) between the hours of noon and 3pm on any day that is a school day; and (d) films classified as “MA” may be broadcast only between the hours of 9pm on a day and 5am on the following day; and (e) those codes provide for the provision of advice to consumers on the reasons for the films receiving a particular classification. The Government has introduced legislation to prohibit programs that have been classified ‘RC’ or ‘X ’ on subscription and open television narrowcasting services. Open narrowcasting services will be subject to the same

From Censorship to Classification

O n - line Services

41. The Government is aware of concerns about the content of some material

available on on-line information services, including the Internet.

My colleague the Minister for Communications, the Information Economy and the

Arts, Senator Richard Alston and I, have announced principles for a national

approach to regulate the content of on-line services.25

42. The basis of the approach is that material accessed through on-line services

should not be subject to a more onerous regulatory framework than ‘off-line’ material

such as books, videos, films and computer games.

As a guideline, what is protected behaviour ‘off-line’ should be protected behaviour

on-line.

This framework balances the need to address community concerns in relation to

content with the need to ensure that regulation does not inhibit industry growth and

potential.

43. The new regulation framework will be based on industry developed codes of

practice with the Australian Broadcasting Authority as industry regulator.

The proposed codes of practice for on-line service providers will cover such matters

as on-line access by minors and the provision of information about content filtering

software to assist parents and other carers - who have the final responsibility for the

protection of minors.

This will be complemented by education campaigns, particularly for parents and

educators, so that they aware of means to manage the use of on-line services by

minors.

44. Reform in this area has begun.

Following amendments to the Broadcasting Services Act passed earlier this year,

Senator Alston has directed the ABA to consult with the industry and relevant

organisations to provide a basis for a smooth transition to the new regulatory scheme.

restrictions regarding ‘R’ - rated programs as currently apply to commercial televison broadcasting services. It is not proposed to prohibit ‘R’ - rated material on subscription televison narrowcasting services. 25 Joint Press Release 15 July 1997

From Censorship to Classification

45. The Government is aware that most on-line content originates from overseas and

of the difficulty this poses for national regulatory frameworks for on-line content.

The Government will actively pursue collaborative arrangements internationally in

relation to on-line content codes of practice and on-line labelling of content.

The OECD is one forum where the issue is receiving international attention in the

context of wider policy formulation.

46. I expect that arrangements will develop between law enforcement and regulatory

agencies internationally to allow information on objectionable material to be passed

to authorities in the country of its origin.

The new National Office for the Information Economy will ensure that Australia’s

position in international deliberations on on-line matters is put in a strong and

effective fashion.

47. In addition to the Commonwealth’s role, State and Territory Censorship

Ministers have agreed to the principle of uniform laws to regulate the publication and

transmission of material by on-line creators and users and to protect minors from

unsuitable material.26

This reinforces legislation that already exists in some States.

Discussions are continuing with my State and Territory colleagues on preparation of

legislation to give effect to the in principle agreement.

C ensorship Policy

48. So much for the legislative structure we now have.

What of the policy that underpins it?

How could the reference to the Law Reform Commission in 1990 state so confidently

that the Commonwealth, States and Territories were in broad agreement on the issue

of censorship policy?

49. The policy, which only saw full legislative recognition by all jurisdictions in the

last decade of the old scheme, has two main elements:

26 News Release of 17 July 1997

From Censorship to Classification

- 1. that adults should be able to read, hear and see what they wish

subject to adequate provisions preventing persons being exposed to

unsolicited material offensive to them and protecting children

from material likely to be harmful to them.

- 2. the concept of the views of a reasonable adult becoming the

basis upon which classification decisions are made.

50. These two elements, which continue to have the support of all Australian

Governments, are to be found in the Commonwealth Act and continue to guide the

making of classification decisions under it.

A dults sh o u ld be able to read, hear a n d see w h a t they w ish

51. Censorship policies became the subject of debate in the Federal Parliament in

the early 1970s following a Ministerial Statement27 on Censorship by the then

Minister for Customs and Excise, the Hon. Don Chipp, in which he expressed the

need for public debate on the issue to identify the prevailing community standards.

52. In response to the Ministers’ statement, the then Member for Oxley, Mr Hayden,

said that in his view censorship laws should conform to the general principle that

adults should be entitled to read, hear and view what they wish in private or public

and that persons and those in their care should not be exposed to unsolicited material

which is offensive to them.28

53. In 1971, when introducing the ‘R’ certificate so that adults could have restricted

access to stronger material if they chose to do so, Don Chipp said:

‘My decision is in accordance with my frequently expressed policy

that of adopting a more liberal censorship attitude for adults while at

the same time maintaining close control on material which young

children may view in cinemas .. ,’29.

27 Commonwealth Parliamentary Debates HR 11 June 1970 p 3372. 28 Commonwealth Parliamentary Debates H R 11 June 1970 p 3381 29 ‘The Australian’ 14 July 1971.

From Censorship to Classification

54. The policy outlined by Mr Hayden was adopted by the incoming Labor

Government after its election in 1972.

55. Following meetings of Commonwealth, State and Territory Censorship

Ministers in 1973 and 1974, legislation introduced in several States from 1974

onwards, and by the Commonwealth in 1983, articulated the ‘freedom to read’ and

‘freedom from offensive material’ principles which underpinned the 1973 policy30.

56. These principles, together with the addition of one relating to violence and the

portrayal of persons in a demeaning manner, are now reflected in the preamble to the

National Classification Code31 and are expressed in the following terms:

‘Classification decisions are to give effect, as far as possible, to the following principles:

(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 'REASONABLE ADULT' TEST

57. Until reforms in the 1970s and 80s the basis of most of Australian censorship

laws rested on concepts of obscenity and indecency.

30 see eg Restricted Publications Act 1974 (Tasmania) 31 See the Schedule to the Commonwealth Act From Censorship to Classification

58. The classic English definition of obscenity, known as the Hicklin test, was laid

down in 1868 by Chief Justice Cockbum when be said:

“ .. .1 think the test of obscenity is this, whether the tendency of the

matter charged as obscene is to deprave and corrupt those whose

minds are open to such immoral influences, and into whose hands a

publication of this sort may fall.”32

59. This definition of obscenity was incorporated, with variations, into Australian

law.

In fact until 1984 the Customs (Prohibited Imports) Regulation prohibited the import

of material that was indecent or obscene or was likely to encourage depravity.33

60. The trend against the Hicklin test began in 1948 with the case of R v Close34 in

which Mr Justice Fullagar observed that the word obscene has nothing to do with

corrupting or depraving susceptible people, but that it is used to describe things

which are offensive to current standards of decency and not things which may induce

to sinful thoughts.35

61. The meaning of both indecency and obscenity was taken further in the High

Court in Crowe v Graham?6.

In that case, the then Chief Justice, Sir Garfield Barwick, said that material was

indecent if, having regard to the manner and circumstances in which it was presented,

it would offend the modesty of the average man or women in sexual matters37.

Justice Windeyer considered that the question to be asked was whether the material

transgresses the contemporary standards of decency of the Australian community38.

32 R v Hicklin (1868) LR 3 QB 360 at p 371 33 Regulation 4A 34 [1948] VLR 445 35 ibid at p 463 36 (1968) 121 CLR 375 37 ibid at page 379 38 ibid at pages 395 and 399

From Censorship to Classification

62. The concept of classifying material on the basis of the views of reasonable

adults was adopted by most States during the mid 1970s as part of their legislative

reforms to introduce a classification scheme for publications, which had previously

been subject to obscenity and indecency offence provisions.39

It was not given recognition in Commonwealth legislation until 198340.

63. The ‘reasonable adult’ test is used in two different senses - as a measure of

community standards and also as an acknowledgment that adults have different

personal tastes.

64. The ‘community standards’ test, to be taken into account in making

classification decisions, refers to ‘the standards of morality, decency and propriety

generally accepted by reasonable adults’41.

It is usually applied in the context of refusing classification to material42.

65. One of the criteria for determining whether a film should be classified ‘R’ or ‘X’

or a publication given a restricted classification is whether the material is ‘likely to

cause offence to a reasonable adult’43.

This is the other sense in which the ‘reasonable adult’ test occurs and acknowledges

that individuals may have different personal tastes.

In other words, although some reasonable adults may find the material offensive, and

thus justify a restricted classification for it, others may not.

They should be allowed to have access to the material if they wish.

66. The change to an objective assessment of the views of reasonable adults has had

a significant effect on the approach adopted in making classification decisions.

It is a far preferable approach to an open-ended subjective assessment by a decision

maker of whether material will deprave or corrupt the minds of susceptible people.

39 see eg. Classification of Publications Act 1973-74 (South Australia) 40 Classification o f Publications Ordinance 1983 (ACT) 41 see eg. section 11 of the Commonwealth Act 42 see the Refused Classification criteria in the Nation Classification Code for publication, films and computer games 43 see the criterion for ‘X ’ rated films and Category 1 Restricted and Category 2 Restricted publications in the National

Classification Code and the Classification Guidelines for ‘R* Rated films From Censorship to Classification

W h o decides?

67. The introduction of the ‘reasonable adult’ test in making classification decisions

and the principle that, subject to safeguards, adults should be read, hear and see what

they wish has changed the focus of the censorship debate.

68. It raises, in some peoples minds, the question: how do Board members know

what the views of a ‘reasonable adult’ in the community are, and how do they gauge

current community standards?

69. When a decision is made by the Classification Board, which some sections of

the community do not like, the cry usually goes up that Board members are out of

touch with current community standards.

70. This has led, in recent times, to close scrutiny of the background and

qualifications of Board members to see whether they can be said to be as broadly

representative of the Australian community as the Act requires.

71. One of the recommendations of the Ministerial Committee on the Portrayal of

Violence in the Media established by the Prime Minister after the Port Arthur

tragedy, was that the Attorney-General review the composition and terms of

appointment of members of the Classification Board44 and Classification Review

Board45.

72. Following that review, I announced a review of the selection procedures for

members of the Classification Board46.

This was not because I considered that the decisions were out of kilter with current

community standards or that the board did not have good mix of members.

It was done to ensure that there was nothing in the current selection process that

prevents the legislative imperative of having a breadth of representation being met in

full.

44 The Act provides that the Classification Board is to consist of a Director, a Deputy Director, Senior Classifiers and other members. There must not be more than 20 members (s.46 and 47). The Board currently operates on an establishment o f 13 (the Director, Deputy Director, 2 Senior Classifiers and 9 members). 45 The Act provides that the Classification Review Board is to consist of the Convenor, Deputy Convenor and at least 3

but not more than 8 other members (s.73). The Review Board currently operates on an establishment of 6 ( the Convenor, Deputy Convenor and 4 other members). 46 Press release o f 27 December 1996

From Censorship to Classification

73. The review of the selection process is being undertaken by my Department and

is well advanced.

Although it has not been finalised, an initial conclusion reached is that vacancies

should be advertised widely in the National, State and Territory and ethnic press to

attract more applications from regional and diverse backgrounds.

Other measures include assisting applicants to relocate to Sydney, where the Board is

based, and to provide for outside participation in the selection process.

74. The Review also recognises that applicants for the classification of material

have the right to expect a professional and consistent approach to classification

issues.

There is a need, therefore, to ensure that those who are appointed are capable of

making decisions on classification that will withstand all scrutiny and be good at law.

75. I would expect the new selection process to be used for the next round of

advertisements for positions on the Board which are likely to be placed at the end of

this year.

Striking the Balance

76. There is an inherent tension between the concept of applying a community

standards test to the making of a classification decision and the principle that adults

should be able to read, hear and see what they wish.

77. There is some material such as child pornography and sexual violence which the

community generally will not tolerate.

For other kinds of material however, the views of the community are sharply

divided.

These cases, which may involve issues such as depictions of violence, how people are

portrayed or just plain questions of taste are the most difficult to deal with.

78. This is particularly so if it is a question of allowing the material to be available

or banning it.

Do you ban material on the basis that a majority of the community find it offensive

whereas a significant minority do not?

From Censorship to Classification

Do you ban on the basis that a significant and articulate minority find it offensive

whereas the majority do not?

79. At the end of the day, if we are to have an independent and transparent decision

making process, the task of balancing the competing interests must be left to the

classifiers to decide when applying the legislative requirements for decision making.

80. The role of Government should be to ensure that the criteria and guidelines

under which classification decisions are made are appropriate, that they reflect

contemporary standards in the community, and that the persons charged with making

the decisions are broadly representative of that community.

T he C lassification P rocess

81. You may be interested to know about the way in which the Classification Board

makes decisions.

82. When making classification decisions the Board operates in panels.

For instance, if a new cinema film is submitted for classification, a panel of at least

three Board members will be assigned to view the film and assess its classification.

If the film has acquired some notoriety overseas, or the indications are that there may

be some difficult classification questions, a larger panel may watch it.

If panel members agree on the classification, their decision will normally be ratified

by the whole Board.

83. If, on the other hand, there is a disagreement about the classification or some of

the panel consider that it should be viewed by other members of the Board, it will be

rescheduled for screening by another panel.

In such cases, the final classification and consumer advice are determined by a

majority vote with a casting vote in the Director, if required.

N ew G uidelines

84. Censorship Ministers have approved classification guidelines for publications,

for Films and Videotapes and for computer games.

They have agreed that the classification guidelines will be sequentially reviewed to

ensure that they properly reflect current community standards.

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This review commenced last year with the Classification Guidelines for Films and

Videotapes and will be followed by reviews of the classification guidelines for

printed matter and computer games, respectively.

T he review process

85. It is worth outlining some aspects of the review process for the Classification

Guidelines for Films and Videotapes because it is an important way in which we can

ensure that community standards are maintained.

86. In discussions with State and Territory Censorship Ministers the view was

expressed that the Guidelines, which dated from 1988, required updating in light of

changes in community standards and that any revisions should be easier for the

general public to understand.

87. At the outset of the review, initial proposed revisions and a discussion draft of

the Guidelines were prepared by members of the Classification Board.

The initial revisions took account of recent research literature and suggestions made

by industry and community groups.

All complaints received by the Board during the previous two years were also taken

into account.

88 Copies of the revised draft Guidelines were sent to every Parliamentarian in

Australia, to all community groups which had made representations to the Office of

Film and Literature Classification, to all relevant industry bodies and users of the

classification scheme for films, to complainants and to all those who responded to

advertisements in the national press calling for submissions on the Guidelines.

89. As a result over 140 submissions were received.

In order to ensure that the submissions were given proper consideration, Professor

Peter Sheehan, the pro Vice Chancellor of the University of Queensland conducted an

independent assessment of all the public and industry submissions.

Dr Judith Bowey, a language expert from the University of Queensland, was engaged

to ensure that the revisions were not unduly complex or difficult to understand.

Their suggestions were incorporated in a further revision of the Guidelines.

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90. Subsequently, the draft revised Guidelines were considered by the

Commonwealth, State and Territory Censorship Ministers.

Further revisions were made by these Ministers in the wake of the tragedy at Port

Arthur and following the various recommendations made by the Ministerial

Committee on Portrayal of Violence in the Media that followed it.

The final Guidelines were then approved and came into effect on July 11 1996.

91. This process of public consultation and review ensures that the Guidelines

reflect, as accurately as possible, the current views of the community about the

standards which should apply to films and videotapes.

C onsum er A dvice

92. When making classification decisions the Classification Board is required to

determine appropriate consumer advice about the content of the films and computer

games it classifies47.

Under State and Territory legislation, consumer advice labels are required to be

shown on packaging, posters and in all advertising materials for a film or computer

game.

93. Australia has been the world leader in terms of providing information to

consumers about the content of films and computer games.

94. The provision of this information has been warmly received by consumers, and

in particular by parents of young children.

The number of complaints made to the Office of Film and Literature Classification

dropped by more than half once the consumer advice became an integral part of the

classification process.

95. Many other countries have adopted a similar approach.

Consumer advice labelling is now being taken up in Britain and France.

47 section 20 o f the Commonwealth Act. Consumer advice for ‘G’ Films is discretionary

From Censorship to Classification

In the United States the classification and rating administration has developed the

practice of publishing reasons for classification decisions in magazines like Variety

but has yet to include them in advertisements or posters.

C o m m u n ity Standards

Community Assessment Panels

96. It is one thing to say that Classification Board decisions are to reflect current

community standards but how do you assess objectively if this has been achieved?

97. Censorship Ministers have agreed to a Commonwealth proposal to establish the

Community Assessment Panel scheme to help the Classification Board assesses

current community standards.

It will also give Censorship Ministers an indication of whether the Classification

Board is reflecting community standards in its decisions.

98. At this stage it is intended that up to 3 Panels will be convened each year in

metropolitan and rural locations across Australia.

The first Panels will be convened in New South Wales and in Queensland.

99. Members will be drawn from a cross section of the community and each panel

will screen up to three films or videos which have been classified by the Board but

not released publicly.

100. Using the Classification Guidelines as a base, Panel members will be asked to

express their views about classifiable elements in terms of age suitability,

classification and consumer advice.

Each Panel will be facilitated by an independent research consultant who will be

chosen by a Research Reference Group acting under the auspices of Censorship

Ministers.

101. Panel members will not be informed in advance of the classification and the

consumer advice which has been decided by the Board.

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102. Board decision reports will be provided to the research consultant who will

prepare a detailed comparative analysis of Panel assessments and Board decisions for

each film screened by a Panel.

These reports will be provided to Censorship Ministers and to members of the

Classification Board for future reference.

103.1 consider this a very worthwhile initiative.

Research

104. The Office of Film and Literature Classification is required, as a part of its

charter, to conduct or commission research into community standards and attitudes.

Each year, the Office has commissioned research on important issues relating to

classification.48

Some of this work has been jointly commissioned with the Australian Broadcasting

Authority which is responsible for maintaining standards in broadcast media such as

television.

105. The research shows that while many adults, when choosing what to see for

themselves, take note of the classification and the consumer advice, most will base

their selection on grounds other than the classification.

106. However, with the onset of parenthood, attitudes appear to change considerably.

Where previously a person may have ignored the classification, as soon as children

enter the household, classification and consumer advice information is avidly sought.

In some cases classifications are used to back up a decision made on other grounds

about what is appropriate viewing for the family.

T he Portrayal o f V iolence

107. Another important area or issue of concern is to be found in the area of screen

violence and images.

48 eg. Computer Games - Their Effect on Young People, OFLC 1995 and Families and Electronic Entertainment, Monogragh 6, ABA/OFLC, 1996.

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Research indicates that this is what people in the community regard as their greatest

concern.

108. A survey conducted by the Australian Broadcasting Authority found that 65

percent of the population perceived that violence as portrayed on television

influenced behaviour and the level of violence in the community.

109. One of the recommendations of the Ministerial Committee on the Portrayal of

Violence in the Media was to remove from the ‘R’ category those films and videos

which would have been given a “high level violence” consumer advice by the Board.

This had the effect of removing from the market place some of the films featuring the

mindless portrayal of high level violence, particularly on videos.

110. It does not mean that Australians will not be able to watch mainstream films that

are freely available in comparable countries overseas.

It does not herald a return to the rigorous censorship of bygone days but ensures that

an appropriate balance between social responsibility and civil rights is properly

maintained in reflection of generally accepted standards.

111. The Government is committed to preserving the rights of adults in a free society;

it is also committed to protecting the rights of children to grow up in a free and

uniquely Australian society.

Accordingly, to those of you who are concerned about these matters I urge some

caution before making unjustified or uninformed assumptions about claims of

increasing censorship.

X a n d N o n Violent Erotica

112. The Government has also taken action in relation to the X-rated category for

videos.

As part of its election platform, the Government undertook to abolish the ‘X’

category in videos.

113.1 have taken up this matter with the Cabinet and with my colleagues in the States

and Territories.

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114. The proposal is that the ‘X’ category be banned, that the strongest elements of

the ‘X’ category be removed, and that a new ‘NVE’ - non violent erotica - category

be created.

This category would then more accurately reflect the kind of material contained in it.

115. Some violent and sexual depictions are already prohibited.

These include child pornography and sexually violent material.

116. The new category would further remove depictions which some groups in the

community find offensive such as sexually assaultive language, certain offensive

fetishes and the portrayal of adults as minors.

117. There is no doubt that some people and groups in the community consider

explicit depictions of sexual activity between consenting adults, which would be the

basis of the new category, to be offensive.

However, the indications are that the community generally is tolerant of such

depictions whether they wish to watch them or not, provided that they are restricted

to those over the age of 18 and provided there are restrictions on the distribution and

display of such material.

118. Discussions with State and Territory Censorship Ministers on the matter are

continuing.

G overnment Po sitio n

119. In closing can I say that the Government fully supports the policy which is

reflected in the Commonwealth Act and in particular that adults should be free to

choose what they read, hear and see.

At the same time the Government is of the view that parents should be the arbiters of

what their children watch.

121. The Government will take the necessary steps to ensure that those who are

appointed to the Classification Board are broadly representative of the community at

large and apply classification guidelines which, as far as possible, reflect community

standards.

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122. There is certain material, about which there is a general community consensus,

which should not be permitted to be sold or distributed in this country.

This includes child pornography, depictions of rape and torture, and other sexually

violent material.

The community also should be able to protect itself from material which gives

instruction on how to make offensive weapons and detailed instructions in matters of

crime and violence.

123. The Classification Board will continue to provide information to parents and to

anyone else in the community about the strongest elements in films, videos or

computer games.

124. The Government urges all parents to read the consumer advice and to take note

of the age based classification rating.

125. The Government does not wish to return to the repressive censorship practices

of the past.

The Government recognises that the right of adults to choose for themselves in these

matters is fundamentally important.

126. We will not lightly interfere with those rights.

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