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Legislation relating to pornography in Australia

CONTENTS

1. Introduction

2. Overview 2.1 National scheme 2.2 Film Censorship Board and the Office of Film and Literature Classification 2.3 Recent reports

3. Importation 3.1 Customs (Prohibited Imports) Regulations 3.2 Customs (Cinematograph Films) Regulations

4. Classification 4.1 Australian Capital Territory 4.1.1 Films and videos 4.1.2 Publications 4.2 New South Wales 4.2.1 Films and videos 4.2.2 Publications 4.3 Victoria 4.3.1 Films and videos 4.3.2 Publications 4.4 South Australia 4.5 Queensland 4.5.1 Films and videos 4.5.2 Publications 4.6 Tasmania 4.6.1 Films and videos 4.6.2 Publications 4.7 Northern Territory 4.7.1 Films and videos 4.7.2 Publications 4.8 Western Australia 4.8.1 Videos tapes 4.8.2 Films 4.8.3 Publications

5. Exhibition, sale and hire 5.1 Australian Capital Territory 5.1.1 Films and videos 5.1.2 Publications 5.2 New South Wales 5.2.1 Films and videos 5.2.2 Publications 5.3 Victoria 5.3.1 Films and videos 5.3.2 Publications 5.4 South Australia 5.5 Queensland 5.5.1 Films and videos 5.5.2 Publications 5.6 Tasmania 5.6.1 Films and videos 5.6.2 Publications 5.7 Northern Territory 5.7.1 Films and videos 5.7.2 Publications 5.8 Western Australia 5.8.1 Videos 5.8.2 Films 5.8.3 Publications

6. Advertising 6.1 Australian Capital Territory 6.1.1 Films and videos 6.2 New South Wales 6.2.1 Films and videos 6.2.2 Publications 6.3 Victoria 6.3.1 Films and videos 6.4 South Australia 6.5 Queensland 6.5.1 Films and videos 6.6 Tasmania 6.6.1 Films and videos 6.6.2 Publications 6.7 Northern Territory 6.7.1 Films and videos 6.7.2 Publications 6.8 Western Australia 6.8.1 Videos 6.8.2 Films 6.8.3 Publications

7. Commonwealth constitutional powers 7.1 External affairs power 7.2 Corporations power 7.3 Territories power 7.4 Postal power 7.5 Telecommunications power 7.6 Trade and commerce power

Footnotes

1. Introduction

The regulation of pornography is an issue that is raised frequently and one which is covered by a number of State and Commonwealth Acts. There appears to be no publication which describes the various Acts and gives an overview of all the Australian jurisdictions. This Issues Brief seeks to provide a useful resource in gathering the relevant legislation in the one paper.

The Issues Brief outlines Commonwealth, State, and Territory legislation dealing with pornography in films, videos and written material. It does not attempt a complete coverage of all sections of the relevant Acts but rather chooses some important aspects and compares the provisions of the different States and Territories. The paper focuses on the following main issues which are dealt with in the various Acts:

importation

classification

exhibition, sale and hire

advertising

It is beyond the scope of this paper to discuss regulation of newer technologies which are or may in the future be used to access pornography, such as computer programs, telephone services, and pay TV.

2. Overview

The regulation of pornography in Australia involves some Commonwealth laws but is mainly regulated on a State and Territory level. The Commonwealth has traditionally considered that legislating in this area is beyond its power and/or politically unwise, except in relation to imports.

The Commonwealth Constitution gives the Commonwealth power to legislate only in certain defined areas whereas the States have general constitutional power to legislate for the 'peace, order and good government' (or an equivalent phrase) of their respective jurisdictions. Although Commonwealth legislation overrides State legislation where the two conflict, the Commonwealth has only a limited range of matters on which it may make laws, while the States' legislative powers are much wider. A brief discussion of the Commonwealth's constitutional powers in this area is included at the end of the paper.

2.1 National scheme

Following negotiations between the Commonwealth, State and Territory governments a new 'national' scheme for the classification of publications was put into place on 1 February 1984. This consisted of amendments to the Customs (Prohibited Imports) Regulations and the Customs (Cinematograph Films) Regulations. These allow the Commonwealth Government to control the importation of pornography.

Also on 1 February 1984 the Commonwealth Government enacted the Classification of Publications Ordinance 1983 (ACT), which used the same classification system as the Customs (Prohibited Imports) Regulations, and was designed as model legislation for the States and the Northern Territory to follow. There was agreement that the States and Territories should be responsible for regulating the point of sale or hire of pornographic material. Each State and the Northern Territory subsequently enacted its own legislation, with most States using the ACT legislation as a model.

The amendments to the Customs (Prohibited Imports) Regulations were specifically designed to:

bring Commonwealth censorship legislation into line with the Government's policy that adults be entitled to read, hear and see what they wish in private and in public, subject to adequate provisions preventing persons being exposed to unsolicited material offensive to them and preventing conduct exploiting, or detrimental to the interests of children 1

2.2 Film Censorship Board and the Office of Film and Literature Classification

The Film Censorship Board and the Film and Literature Review Board were established under the Customs (Cinematograph Films) Regulations.

The Film Censorship Board is a full- time statutory board established in 1956, headed by the statutory office of Chief Censor. By agreement the Board classifies films and videos for all jurisdictions. The legislation of each State and Territory except South Australia allows for an arrangement with the Commonwealth and defines the Censor as being the Commonwealth Censor where such an arrangement is in place. All these jurisdictions currently have such an agreement. In South Australia a classification given by the Film Censorship Board is accepted as a classification under the relevant South Australian legislation unless the South Australian Classification of Publications Board has made a different classification.

Publications are classified for some States and Territories by the Office of Film and Literature Classification. The Office is a non- statutory office established within the Attorney- General's portfolio in April 1988. Publications for New South Wales, Victoria, South Australia and the Territories are classified by the Office. Western Australia, Tasmania and Queensland operate their own classification schemes 2 .

2.3 Recent reports

The issue of pornography has received much attention in recent years which has led to the following important reports:

Report of the Joint Select Committee on Video Material, April 1988. 3

Law Reform Commission, Report No 55, Censorship Procedure, June 1991. 4

Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Telecommunications Technologies, June 1992. 5

3. Importation

Importation of pornographic material is regulated by Commonwealth legislation. T he Customs (Prohibited Imports) Regulations allow confiscation of some types of publications and other goods at the point of entry into Australia.

3.1 Customs (Prohibited Imports) Regulations

Regulation 4A prohibits the importation of the following goods:

(a) publications, other than films that are registered under the Customs (Cinematograph Films) Regulations, that-

(i) depict in pictorial form a child (whether engaged in sexual activity or otherwise) who is or is apparently, under the age of 16 years in a manner that is likely to cause offence to a reasonable adult person;

(ii) depict in pictorial form bestiality in a manner likely to cause offence to a reasonable adult person;

(iii) contain 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;

(iv) promote, incite or instruct in matters of crime or violence; or

(v) promote or incite the misuse of a drug specified in the Fourth Schedule.

(b) any other goods that-

(i) depict, express or are otherwise concerned with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in a manner that is likely to cause offence to a reasonable adult person to the extent that they should not be imported; or

(ii) depict a child (whether engaged in sexual activity or otherwise) who is, or who is apparently under the age of 16 years in a manner that is likely to cause offence to a reasonable adult person.

The Attorney- General may give permission for goods in the above categories to be imported 6 . In granting permission the Attorney- General must however have regard to 7 ;

(a) the purposes for which the goods are to be imported; and

(b) the extent to which the person to whom any permission to import the goods would be granted conducts activities of an artistic or educational, or a cultural or scientific, nature to which the goods relate; and

(c) the reputation of the person referred to in paragraph (b) both generally and in relation to an activity referred to in that paragraph; and

(d) the ability of that person to meet conditions that may be imposed under subregulation (3) in relation to the goods; and

(e) any other relevant matters

A person whose request to import is refused under regulation 4A(2) may apply to the Administrative Appeals Tribunal for a review of the decision 8 .

3.2 Customs (Cinematograph Films) Regulations

The Customs (Cinematograph Films) Regulations provide that films may not be imported unless certain conditions are complied with 9 . These include applying for registration of the film within 120 days of importation, and not exhibiting the film in a form or under a title other than that registered. 10

Conditions are also imposed on the importation of advertisements such as, conditions that they will not be used in any form other than the form which has been approved for importation, and that they will be used without addition or comment. 11

An importer may apply to the Chief Censor for permission for the importation of a film or advertising matter. 12

Where a film is refused registration or advertising material is not passed, the importer must either export the film or advertising material or destroy it under supervision, within 28 days. 13

Films may also be screened by 'approved organisations' at 'approved events' under the provisions of Part III of the Regulations.

A person aggrieved 14 by a decision of the Censorship Board may apply to the Board of Review for review of a decision to refuse or allow importation. 15

4. Classification

The Film Censorship Board classifies films for all jurisdictions and a copy of their Guidelines for the Classification of Films and Videotapes is in Attachment A. Each State and Territory has its own legislation and not all categories used by the Film Censorship Board are accepted in every jurisdiction.

Publications are classified by the Office of Film and Literature Classification, for New South Wales, Victoria, South Australia and the Territories. The guidelines for the classification of printed matter are in Attachment B. Western Australia, Tasmania and Queensland operate their own schemes.

4.1 Australian Capital Territory

Censorship legislation in the Australian Capital Territory is controlled by the Commonwealth Government.

The Classification of Publications Ordinance 1983 came into force on 1 February 1984, the same day as the amendments to the Customs Regulations. It has been amended by the Classification of Publications (Amendment) Ordinances of 1984, 1988, 1989 Nos. 1 and 2, and the Publications Control Ordinance 1989. It was designed as model legislation for the States to follow, and covers all types of publications including films and videos. The Publications Control Ordinance 1989 contains the offences and enforcement powers in relation to publications, previously contained in the Classification of Publications Ordinance.

The Classification of Publications Ordinance is not an enactment of the A.C.T. Legislative Assembly, but an Ordinance made by the Governor- General. Although the Film Classification Act 1971 is an enactment of the A.C.T. Legislative Assembly, paragraph 23(1)(g) of the Australian Capital Territory (Self- Government) Act 1988, only allows its classification provisions to be amended by the Federal Parliament, by way of Ordinance under the Seat of Government (Administration) Act 1910.

4.1.1 Films and video

The classification categories contained in the Classification of Publications Ordinance are 16 :

'G' where the Censorship Board is of the opinion that the film is suitable for general exhibition;

'PG' where it is of the opinion that the film should only be viewed by a person under the age of 15 years with the guidance of a parent or guardian of that person;

'M' where it is of the opinion that the film cannot be recommended for viewing by persons under the age of 15 years;

'R' or 'X' where it is of the opinion that it is unsuitable for viewing by a minor and it depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in a manner that is likely to cause offence to a reasonable adult. (The distinction between an 'R' and an 'X' classification is explained in the Film Censorship Board classification guidelines.)

Classification is refused 17 where the Board is satisfied that the film:

(a) depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a manner that it offends against the standards of morality, decency and propriety generally accepted by reasonable adult persons to the extent that it should not be classified;

(b) depicts a child (whether engaged in sexual activity or otherwise) who is, or who is apparently, under the age of 16 years in a manner that is likely to cause offence to a reasonable adult person; or

(c) promotes, incites or instructs in matters of crime or violence.

An application for the review of a classification 18 can be made by the person who applied for classification of the film, the publisher of the film, or the Attorney- General.

The Films Board of Review may revoke the classification 19 of a film, on application or by its own motion. There does not appear to be any restriction on who may apply for revocation, as the section only refers to the 'applicant'. The Board may not revoke a classification of its own motion within 12 months of making the classification.

A limited exemption from being found to be an objectionable publication is available for a film which possesses literary or artistic merit or is of a medical, legal or scientific character depending on the conduct and intention of the person who has control over the film 20 .

4.1.2 Publications

The categories of classification for publications under the Classification of Publications Ordinance are 21 :

unrestricted

restricted publication category 1

restricted publication category 2

A publication will be classified as restricted where it:

describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence, or revolting or abhorrent phenomena in a manner that is likely to cause offence to a reasonable adult person; or

is unsuitable for perusal by a minor.

Classification will be refused 22 where the publication:

describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty or violence, or revolting or abhorrent phenomena, in such a manner that it offends against the standards of morality, decency and propriety generally accepted by reasonable adult persons, to the extent that it should not be classified.

depicts in pictorial form a child (whether engaged in sexual activity or otherwise) who is, or who is apparently, under the age of 16 years in a manner that is likely to cause offence to a reasonable adult person.

promotes, incites or instructs in matters of crime or violence

An application to review the classification 23 can be made by the person who applied for classification, the publisher of the publication or the Attorney- General.

A classification decision can also be revoked by the Publications Review Board 24 on application or by its own motion. However, the Board may not revoke a classification of its own motion within 12 months of making the classification.

A publication may be granted a limited exemption from being found to be an objectionable publication (ie. refused classification) if the Board considers the publication possesses literary or artistic merit or is of a medical, legal or scientific character depending on the conduct and intention of the person who has control over the film [ Publication Control Ordinance 1989, s16].

4.2 New South Wales

4.2.1 Films and Videos

In New South Wales the classification of films and videos is covered by the Film and Video Tape Classification Act 1984, reprinted as at 4 November 1991 and further amended by the Film and Video Tape Classification (Amendment) Act 1991.

This Act provides that the classification categories 25 are 'G', 'PG', 'M' and 'R'. The New South Wales Act does not contain an 'X' rated classification and these films would fall into the refused classification category.

The Act provides films shall be refused classification where the film: 26 (a) describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty or violence, or revolting or abhorrent phenomena, in a manner that is likely to cause offence to a reasonable adult;

(b) is a child abuse film (defined [s3] as a film which depicts a person, whether engaged in sexual activity or otherwise, who is, or who is apparently, a child in a manner that is likely to cause offence to a reasonable adult);

(c) describes, depicts, expresses or otherwise deals with sexual activity of any kind between a human being and an animal; or

(d) promotes, incites or encourages terrorism within the meaning of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth.

Advertisements may also be subject to classification. 27 Film advertisements may not be shown at the exhibition of a film of a lower classification than that being advertised. 28

An application for the review of a decision of the censor, 29 can be made by the person who applied for classification of the film, or the Minister. Revocation of the classification of a film 30 is by the appeal censor on her or his own motion or on application of the person who applied for classification of the film, or the Minister. Revocation cannot take place within 12 months of initial classification of the film. In 1991 the Act was amended 31 to allow the censor to review the previous classification of a film after 2 years.

Any alteration without approval to a classified film 32 after it has been classified will render it unclassified. 4.2.2 Publications

Classification of publications other than films and videos in New South Wales are covered by the Indecent Articles, Classified Publications Act 1975, reprinted as at 28 October 1991.

The Act establishes three levels of classification for legal publications: 33

unrestricted;

restricted publication category 1; and

restricted publication category 2.

In determining whether a publication should be classified as restricted, as either category 1 or 2, the classifying authority must have regard to: 34

the manner in which, and the extent to which, the publication relates to or depicts matters of sex, drug addiction, horror, crime, cruelty or violence;

The Act prohibits publications 35 which: (a) contain indecent matter that depicts, whether by photograph or in any other pictorial manner, a person who is, or who is apparently, under the age of 16 years and who:

(i) is engaged in an activity, including the activity of posing, of a sexual nature; or

(ii) is in the presence of another person who is so engaged;

(b) describes, depicts, expresses, or otherwise deals with, sexual activity of any kind between a human being and an animal;

(c) contains a detailed and gratuitous description or depiction of an act of significant cruelty:

(d) contains an explicit and gratuitous description or depiction of an act of sexual violence;

(e) promotes, incites or encourages the use of hard drugs; or

(f) promotes, incites or encourages terrorism within the meaning of the Australian Security Intelligence Organisation Act 1979 of the Commonwealth.

4.3 Victoria

The Victorian Classification of Films and Publications Act 1990 covers the classification of all types of publications.

This new Act adopts the classification scheme used in the Classification of Publications Ordinance 1983 (ACT) except that it does not contain an 'X' category for films and videos and these are therefore classified as 'objectionable films'.

4.3.1 Films and videos

Classification categories for films and videos are 'G', 'PG', 'M', and 'R' 36 and advertisements may also be classified. 37

A film will be labelled an 'objectionable film' where it: (a) describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence, or revolting or abhorrent phenomena, in a manner that is likely to cause offence to a reasonable adult person; or

(b) depicts in pictorial or other form a child (whether engaged in sexual activity or otherwise) who is, or who is apparently, under the age of 16 years in a manner that is likely to cause offence to a reasonable adult person; or

(c) promotes, incites or instructs in matters of crime or violence; or

(d) has been refused classification or approval, as the case requires.

An application for review of a classification decision can be made by the person who applied for the classification, the publisher of the film, the Minister, or any person aggrieved. 38 The Censor may review a classification on her or his own motion after 2 years. 39

The Censor may also revoke a classification decision on her or his own motion or on application. 40 There does not appear to be any restriction on who may apply for the decision to be revoked. The Censor may not act on her or his own motion within 12 months of the original decision.

4.3.2 Publications

The classification categories for publications are: 41

unrestricted;

restricted publication category 1; and

restricted publication category 2.

A publication will be classified as restricted where it is classified as such under the ACT Ordinance. 42

Classification will be refused and the publication labelled objectionable where it: (a) describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence, or revolting or abhorrent phenomena, in a manner that is likely to cause offence to a reasonable adult person; or

(b) depicts or describes in pictorial or other form a child (whether engaged in sexual activity or otherwise) who is, or who is apparently, under the age of 16 years in a manner that is likely to cause offence to a reasonable adult person; or

(c) promotes, incites or instructs in matters of crime or violence; or

(d) has been refused classification.

The Victorian Act makes no provision for review presumably because the classification of the publication made under the ACT Ordinance would also be subject to the review process of the Ordinance.

4.4 South Australia

In South Australia the Classification of Publications Act 1974 reprinted as at 1 March 1984 and as amended by the Classification of Publications Amendment Act 1985 Nos. 1 and 2, covers all types of publications including films. The Act is not divided into separate parts covering films and other classifications. Films are also covered by the Classification of Films for Public Exhibition Act 1971 formerly called the Film Classification Act 1971 reprinted as at 1 March 1984.

Classification categories for films are 'G', 'PG', 'M', and 'R', and for other publications unrestricted, or restricted category 1 or 2. 43

A publication will be classified as an 'R' film or a category 1 or 2 restricted publication as the case may be where it: (a) describes, depicts, expresses or otherwise deals with prescribed matters in a manner that is likely to cause offence to reasonable adult persons; or

(b) is unsuitable for perusal or viewing by minors Prescribed matters means: 44 (a) matters of sex

(b) violence or cruelty

(c) the manufacture, acquisition, supply or use of instruments of violence or cruelty;

(d) the manufacture, acquisition, supply, administration or use of drugs;

(e) instruction in crime; or

(f) revolting or abhorrent phenomena.

Classification will be refused where the Classification of Publications Board is satisfied: 45 (a) that to assign a classification to the publication could not give proper effect to the principles that the Board is bound to apply; or

(b) that the publication would, by reason of the manner in which it describes, depicts, expresses or otherwise deals with prescribed matters, so offend against the standards of morality, decency and propriety generally accepted by reasonable adult persons that it should not be assigned a classification; or

(c) in the case of a film- that the film is, by reason of its emphasis on or explicit depiction of prescribed matters, unsuitable for classification as an "R" film.

Films are deemed unsuitable for classification as an 'R' film 46 if they are films which have been refused classification under a corresponding law or have had their classification revoked, or have been classified as otherwise than 'G', 'PG', 'M', or 'R' (thus excluding 'X' films).

Where a publication has been altered after classification in an unauthorized manner, it will be deemed to be unclassified. 47

An application for review of a classification decision can be made by any person. 48 The Board may also review a classification of its own motion. 49

4.5 Queensland

The Queensland Classification of Films Act 1991 covering classification of films and videos and the Classification of Publications Act 1991 were both assented to on 9 December 1991. The Acts are yet to be proclaimed but the Queensland Attorney- General's Department advises that they will be proclaimed in the near future.

4.5.1 Films and videos

The classification categories for films and videos under the Classification of Films Act are 'G', 'PG', 'M', and 'R'. 50

Classification will be refused where a film: 51

(a) describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena, in a way that offends against standards of morality, decency and propriety generally accepted by reasonable adult persons; or

(b) is or would be classified as an "X" film under the Ordinance (ACT);

(c) depicts a minor (whether engaged in sexual activity or otherwise) who is, or is apparently, under the age of 16 years in a way that is likely to cause offence to a reasonable adult person; or

(d) promotes, incites or instructs in matters of crime or violence.

Advertisements may also be classified. 52

An application for review of a classification decision can be made by the person who applied for the classification, the publisher of the film or the Minister. 53 The Censor may review a classification on her or his own motion after 2 years. 54 4.5.2 Publications

The classification categories for publications under the Queensland Classification of Publications Act are: 55

unrestricted; restricted publication category 1; restricted publication category 2; and refused classification.

A publication will be classified applying the relevant provisions of the ACT Ordinance. 56

A publication may be reclassified if the publication officer is satisfied that it should have a different classification. 57

A persons whose interests are adversely effected by a classification decision may appeal against the classification. 58

4.6 Tasmania

The Classification of Publications Act 1984 has been amended by the Classification of Publications Amendment Act 1988, and the Classification of Publications Amendment Act 1990. It covers all types of publications. Films and videos are also subject to the Films Act 1971 as amended by the Films Amendment Act 1984 and the amendments to the Classification of Publications Act 1984.

4.6.1 Films and videos

The classification categories 59 under the Classification of Publications Act, as amended are 'G', 'PG', 'M' and 'R'. There is no 'X' category.

Where the censor decides that a film is an objectionable publication it will not be classified. 60 An objectionable publication means a publication that: 61

(a) describes, depicts, expresses, or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence, or revolting or abhorrent phenomena in a manner that is likely to cause offence to a reasonable adult; (b) is a child abuse publication; (c) describes, depicts, expresses, or otherwise deals with an act of bestiality; or (d) promotes, incites, or encourages terrorism. A child abuse publication means a publication that: 62

depicts in pictorial form a person (whether engaged in sexual activity or otherwise) who is, or who is apparently, a child in a manner that is likely to cause offence to a reasonable adult. A child means 63 a person who has not attained the age of 16 years.

An application for the review of the classification can be made by the person who applied for the classification or the Minister. 64 The Censor may revoke the classification of a film on application or on her or his own motion, but not within 12 months of having made the decision in the latter case. 65

A person who considers that a classified film unduly emphasises matters of cruelty or violence may apply to the Board to review the classification of the film. 66

4.6.2 Publications

The Tasmanian Classifications Board shall classify publications other than films in the following manner: 67 (1) Where the Board decides that a publication-

(a) is not an objectionable publication; and (b) is not unsuitable for perusal by a minor,

the Board shall classify the publication as an unrestricted publication.

(2) subject to subsection (3), where the Board decides that a publication-

(a) describes, depicts, expresses, or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence, or revolting or abhorrent phenomena in a manner that is likely to cause offence to a reasonable adult; or (b) is unsuitable for perusal by a minor,

the Board shall classify the publication as a category 1 or category 2 restricted publication.

(3) The Board shall classify as a prohibited publication a publication which-

(a) describes, depicts, expresses, or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence, or revolting or abhorrent phenomena in such a manner that it offends against the standards of morality, decency, and propriety generally accepted by reasonable adults to the extent that it should, in the opinion of the Board, be classified as a prohibited publication; (b) is a child abuse publication; (c) describes, depicts, expresses, or otherwise deals with an act of bestiality; or (d) promotes, incites, or encourages terrorism.

The Tasmanian Classifications Board will review a classification decision on the application of any person or the Minister, or of its own motion, but not within 12 months of the classification decision. 68

4.7 Northern Territory

The Classification of Publications and Films Act 1985, 69 covers the classification of all types of publications.

A Bill was introduced in the Northern Territory Legislative Assembly on 20 August 1992 70 which seeks to insert two new Parts in the Act:

Part IVA - dealing with the 'Production or Copying of Films Classified 'X', & c' - creating an offence to produce a film that is or is likely to be, classified 'X' or refused classification except for natural persons registered under the Bill. 71

Part IVB - dealing with 'Child Pornography' making it an offence to:

Knowingly possess a film or photograph of a child who is, or apparently is, under the age of 16 years and who is engaged in sexual activity or is depicted in an indecent sexual manner. 72

This would attract a penalty of $10,000 or imprisonment for 12 months.

It is understood the Bill will be further debated in November 1992 (and/or February 1993).

4.7.1 Films and videos Classification categories 73 are 'G', 'PG', 'M', 'R' and 'X'.

A film will be refused classification 74 if it is found to be 'objectionable,' which is defined as a publication that: 75 (a) describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in a manner that is likely to cause offence to a reasonable adult;

(b) depicts in pictorial form an infant (whether engaged in sexual activity or otherwise) who has not, or apparently has not, attained the age of 16 years, in a manner that is likely to cause offence to a reasonable adult; or

(c) promotes, incites or instructs in matters of crime or violence.

The Censor must also refuse to classify a film where it: 76

(3) depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty or violence, or revolting or abhorrent phenomena, in such a manner that it offends against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that it should not be classified. Advertisements may also be subject to classification 77 using the same criteria as for films.

An application for the review of a decision of the censor, 78 can be made by the person who applied for classification of the film, the publisher of the film or the Minister. The Censor can also review a decision of her or his own motion after 2 years. 79

The Board may revoke the classification of a film 80 of its own motion or on application. The Act does not specify who may make an application for revocation. Revocation cannot take place at the motion of the Board within 12 months of the initial classification. 81

A publication will not be objectionable if it possesses literary or artistic merit or is of a medical, legal or scientific character depending on the conduct and intention of the person who has control over the film. 82

4.7.2 Publications The classification categories for publications are: 83

unrestricted; restricted publication category 1; and restricted publication category 2.

A publication will receive a restricted classification where it: 84 (a) describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence, or revolting or abhorrent phenomena, in a manner that is likely to cause offence to a reasonable adult person.; or

(b) is unsuitable for perusal by a infant.

Classification will be refused where a publication: 85

(a) describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence, or revolting or abhorrent phenomena, in such a manner that it offends against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that it should not be classified; or

(b) depicts in pictorial form an infant (whether engaged in sexual activity or otherwise) who has not, or apparently has not attained the age of 16 years, in a manner that is likely to cause offence to a reasonable adult person;

(c) promotes, incites or instructs in matters of crime or violence.

An application for the review of a decision of the censor, 86 can be made by the person who applied for classification of the publication, the publisher of the publication or the Minister.

4.8 Western Australia

In Western Australia the Video Tapes Classification and Control Act 1987 amended by the Video Tapes Classification and Control Amendment Act 1991, covers the classification of video tapes.

The classifications of films is covered by the Censorship of Films Act 1947 reprinted in 1978 and as amended by the Censorship of Films Amendment Act 1984.

The classification of publications is covered by the Indecent Publications and Articles Act 1902 reprinted in 1975 and amended by the Indecent Publications and Articles Amendment Act 1983, the Indecent Publications and Articles Amendment Act (No.2) 1983, and the Video Tapes Classification and Control Act 1987 . 4.8.1 Video tapes The classification categories for videos under the Video Tapes Classification and Control Act are 'G', 'PG', 'M' and 'R'. 87 There is no 'X' classification.

A video tape will be refused classification where it: 88 (a) describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty or violence, or revolting or abhorrent phenomena, in a manner that is likely to cause offence to a reasonable adult;

(b) is a child abuse video tape;

(c) describes, depicts, expresses or otherwise deals with sexual activity of any kind between a human being and an animal; or

(d) promotes, incites or encourages terrorism.

Advertisements may also be subject to classification. 89

An application for review of a decision of the censor, 90 can be made by the person who applied for classification of the video tape or advertisement, the publisher of the video tape or advertisement, or the Minister.

The Censor may review a classification decision of her or his own motion after 2 years of making the decision. 91

Revocation of the classification of a video tape 92 is by the appeal censor on her or his own motion or on application of the person who applied for classification of the film, or the Minister. Revocation cannot take place within 12 months of initial classification of the film.

Any alteration without approval to a classified video tape 93 after it has been classified will render it unclassified.

4.8.2 Films

The classification categories for films under the Censorship of Films Act are: 94 (a) for general exhibition; (b) a film which should be viewed by children only with the guidance of a parent or guardian; (c) for mature audiences; or (d) for restricted exhibition.

Classification will be refused where a film is, in the Censor's opinion: 95 (a) indecent or obscene, or likely to be injurious to morality; or (b) likely to encourage public disorder or crime; or (c) undesirable in the public interest.

The censor shall not unconditionally refuse to approve a film which- (a) reproduces or adapts, in good faith and with artistic merit, any work of recognised literary merit; or (b) represents, in good faith and with artistic merit, any scriptural, historical, traditional, mythical or legendary story.

An advertisement may also be classified. 96

A person aggrieved by a decision of the censor may appeal to the Minister. 97

4.8.3 Publications

Publications may be refused classification, or may be classified as restricted under the Indecent Publications and Articles Act or become subject to proceedings under the Act. 98

A publication or class of publication will be classified on the basis of whether it:

(a) by reason of the nature or extent of references therein to sex, drug addiction, crime, violence, gross cruelty or horror or any other reason, is undesirable reading for persons under the age of eighteen years and should be classified as a restricted publication or class of publication;

(b) should be the subject of proceedings under section 2 of this Act.

Section 2 of the Act prohibits dealings with, including possession of, indecent or obscene publications and articles.

Nothing in the Act relates to any work of recognised literary, artistic or scientific merit or any bona fide medical work or treatise. 99 The onus of proof is on the defendant to show its bona fides.

A person aggrieved (author, publisher or seller) by a classification decision can appeal against a decision to the District Court of Western Australia. 100

5. Exhibition, sale and hire

5.1 Australian Capital Territory

5.1.1 Films and videos

The exhibition, sale and hire of films in the Australian Capital Territory is covered by the Publications Control Ordinance 1989.

The Ordinance makes it an offence to exhibit an unclassified film in a public place, 101 or to deposit an unclassified film 102 or an 'R' or 'X' film in a public place. 103

The sale, hire or distribution of an unclassified video is also prohibited. 104

An 'R' or 'X' film may not be sold, let on hire or delivered to a minor except by a parent or guardian of that minor. 105 An 'X' film may not be exhibited or displayed in a public place unless its container bears the classification, 106 and an 'X' film can only be displayed in a restricted publications area. 107

5.1.2 Publications

The sale of publications in the Australian Capital Territory is covered by the Publications Control Ordinance 1989.

It is an offence to sell, advertise, let on hire or distribute an objectionable publication (unclassified publication) 108 and an offence to possess one for the purposes of publication. 109

The Ordinance prohibits the exhibition or display 110 or depositing 111 of an objectionable publication in a public place is also prohibited. Depositing a category 1 or 2 restricted publication in a public place is also prohibited. 112

A category 1 or 2 restricted publication may not be sold, let on hire or delivered to a minor other than by a parent or guardian of that minor. 113 A category 1 publication may only be exhibited or displayed in a public place if it is contained in a sealed package, and must bear the prescribed markings. 114 A category 2 publication may only be exhibited or displayed in a restricted publications area, and must bear the prescribed markings. 115 It may only be delivered to a person who has made a direct request for the publication and must be contained in a plain opaque wrapping. 116

5.2 New South Wales

5.2.1 Films and videos

In New South Wales the Film and Video Tape Classification Act 1984 prohibits the exhibition of an unclassified film in a public place. 117

Attendance by minors including children under 2 years of age, at the exhibition of an 'R' or unclassified film is prohibited. 118 An offence is committed by the exhibitor; 119 the minor if aged 15 years or over; 120 and any person who causes, permits or allows the attendance by a minor. 121

The censor may at any time order the withdrawal of any film from exhibition if in her or his opinion such a course is necessary in the public interest. 122

Sale or display of unclassified films is prohibited 123 and the sale of an 'R' film to minors is prohibited. 124 The purchase by a minor over the age of 15 years of an 'R' film is also an offence. 125

Films for sale must carry the prescribed classification markings 126 and premises used for the sale of films must display a notice setting out the classifications. 127

5.2.2 Publications

The New South Wales Indecent Articles, Classified Publications Act 1975 prohibits the sale or delivery of Category 1 publications to a person under the age of 18 years, other than by a parent or guardian of the person. Such publications may not be displayed in a public place unless sealed in a package and must bear their classification. 128

Category 2 publications may not be sold or delivered to a person under the age of 18 years, other than by a parent or guardian of the person. They may not be displayed other than in a restricted area, and must be contained in a package of plain opaque material and bear their classification. They may only be sold to a person who makes a direct request for the publication. 129

Publishing a prohibited publication or having possession of a prohibited publication apparently for the purpose of publication is prohibited. 130

5.3 Victoria

5.3.1 Films and videos

In Victoria the Classification of Films and Publications Act 1990 prohibits the exhibition of an unclassified film or an objectionable film (defined as an unclassified film or an advertisement for a film which would be refused classification) in a public place. 131

Exhibition of an 'R' film in a public place is prohibited if a child between the ages of 2 and 18 years is present. 132 A child of 10 years or more commits an offence by attending an 'R' film. 133 It is an offence for any adult to accompany or assist a child, or where the child is in her or his care, custody or control, cause or permit a child between 2 and 18 years to attend a 'R' film in a public place. 134

It is an offence to screen an 'R' film in a place other than a public place in the presence of a child without the consent of a parent or guardian of the child. 135

A member of the police force, an exhibitor or an exhibitor's servant or agent can demand from a person their correct name, age and address where they reasonably suspect that the person entering premises where an 'R' film is to be shown, is under 18 years of age or has a child over 2 years of age in their control. 136 If there is reason to believe the evidence given is false, evidence of the particulars may be required to be produced within a reasonable time, and the person under suspicion may be required to sign a statement as to those particulars. Sale or display of an unclassified or objectionable film is prohibited 137 and the sale of an 'R' film to minors is prohibited. 138

Films for sale must carry the prescribed classification markings 139 and premises used for the sale of films must display a notice setting out the classifications. 140

Objectionable films must not be kept on the same premises from which classified films are sold. 141 A person must not possess an objectionable film for the purpose of sale or distribution, or for exhibition in a public place. 142

A person must not make, produce or copy an objectionable film for the purposes of gain. 143

A film may not be sold which contains an advertisement for a film with a higher classification than the actual film. 144

5.3.2 Publications

The Act makes it an offence to sell or advertise an 'objectionable publication' 145 and an offence to possess one for the purposes of publication. 146 A person must not print or otherwise make or produce or copy an objectionable publication for the purposes of publishing it. 147

The exhibition or display 148 or depositing 149 of an objectionable publication in a public place is prohibited. Depositing a category 1 or 2 restricted publication in a public place is also prohibited. 150

A category 1 or 2 restricted publication may not be sold, or delivered to a child other than by a parent or guardian of that child. 151

A category 1 publication may only be exhibited or displayed in a public place if it is contained in a sealed package, and must bear the prescribed markings. 152

A category 2 publication may only be exhibited or displayed in a restricted publications area, and must bear the prescribed markings. 153 It may only be delivered to a person who has made a direct request for the publication and must be contained in a plain opaque wrapping. 154

It is an offence for a person in charge of a restricted publications area to allow a child to enter that area. 155

5.4 South Australia

In South Australia the Classification of Publications Act 1974 makes it an offence for a person to sell, display or deliver on sale an unclassified film. 156 It is also an offence to show images from an unclassified film or copy the whole or any part of it. 157

It is an offence to sell or deliver a restricted publication category 1 or an 'R' film, or to show images of an 'R' film, to a minor except by a parent or guardian of that minor or with the written authority of a parent or guardian of that minor. 158

A restricted publication category 1 may not be displayed in a public place unless it is contained in a sealed container. 159

A restricted publication category 2 may not be sold, displayed, delivered or exhibited to a minor otherwise than by a parent or guardian of that minor. 160 Sale, display or delivery must take place in a restricted publications area. 161 The publication shall not be delivered to a person who has not made a direct request for it, and must be delivered wrapped or contained in plain opaque material. 162

A person selling films must display signs containing the prescribed information relating to classification on the premises used for sale or display. 163

It is an offence to exhibit an 'R' film on premises in which restricted publications are for sale. 164 A person who has the control or management of the premises also commits an offence. 165

The Classification of Films for Public Exhibition Act 1971 prohibits the exhibition of an unclassified film in a theatre, 166 or a film which has been altered after classification. 167

The exhibitor commits an offence if a child between the ages of 2 and 18 years is present in the theatre exhibiting a restricted film. 168 A person assisting the entry of a minor to a restricted film commits an offence. 169

The exhibitor, an employee of the exhibitor, or a member of the police force may require a person seeking admission to a restricted film to state their age and produce documentary evidence of their age. 170 Where they believe on reasonable grounds that the person is under the age of 18 years they may require the person to leave the theatre.

5.5 Queensland

5.5.1 Films and videos

In Queensland The Classification of Films Act 1991 prohibits the exhibition of an unclassified film in a public place. 171 Exhibition of an 'R' film in a public place is prohibited if a child between the ages of 2 and 18 years is present. 172 A child of 15 years or more commits an offence by attending a 'R' film. 173 It is an offence for any adult to accompany or assist a child, or where the child is in her care, custody or control, cause or permit a child between 2 and 18 years to attend a "R" film or an objectionable film in a public place. 174

An inspector, an exhibitor or an exhibitor's servant or agent can demand from a person their correct name, age and address where they reasonably suspect that the person entering premises where an 'R' film is to be shown, is under 18 years of age or has a child over 2 years of age in their control. 175 If there is reason to believe the evidence given is false, evidence of the particulars may be required to be produced within a reasonable time, and the person under suspicion may be required to sign a statement as to those particulars.

It is an offence to exhibit an 'R' film in a place that is not a public place in the presence of a minor without the consent of a parent or guardian of the minor. 176 It is an offence to exhibit an objectionable film in a place that is not a public place in the presence of a minor. 177

Sale or display of an unclassified or objectionable film is prohibited 178 and the sale or delivery of an 'R' film to minors is prohibited. 179

Films for sale must carry the prescribed classification markings 180 and premises used for the sale of films must display a notice setting out the classifications. 181

Objectionable films must not be kept on the same premises from which classified films are sold. 182 A person must not possess an objectionable film for the purpose of sale or distribution, or for exhibition in a public place. 183

A person must not make or produce an objectionable film for the purposes of gain 184 or possess an objectionable film for the purpose of sale or distribution. 185

A film may not be sold which contains an advertisement for a film with a higher classification than the actual film. 186 5.5.2 Publications

The Queensland Classification of Publications Act 1991 makes it an offence to sell, distribute or advertise a prohibited publication (a restricted publication, a publication which has been refused classification or is an interim prohibited publication) 187 and an offence to possess one for the purposes of publication. 188

It is an offence to possess a child abuse publication 189 defined as: 190

a refused classification publication that depicts or describes in pictorial or other form a minor (whether or not engaged in sexual activity) who is, or is apparently, under the age of 16 years in a way that is likely to cause offence to a reasonable adult person A person must not print or otherwise make or produce or copy a prohibited publication for the purposes of publishing it. 191

Exhibition or display 192 of a prohibited publication in a public place is prohibited.

Leaving a prohibited publication in a public place with intent to cause offence to another person or reckless disregard to the offence that could be caused is an offence 193 as is leaving a prohibited publication on private premises without the occupiers permission. 194

5.6 Tasmania

5.6.1 Films and videos

In Tasmania the Classification of Publications Act 1984 makes it an offence to screen an 'R' film in any premises in which publications are sold or premises associated or used in conjunction with those premises. 195

An objectionable film (a film which is an objectionable publication) may not be exhibited or displayed in a public place or in such a manner that it is visible from a public place. 196

The screening of an objectionable film in the presence of a minor other than by a parent or guardian of that minor is an offence. 197

The Films Act 1984 makes it an offence to exhibit an unregistered film in a theatre 198 or to screen a film in a form other than it's registered form. 199

The Films Act also makes it an offence for an exhibitor to admit or permit the admission of child between the ages of 2 and 18 years to an 'R' film. 200 Any adult who causes, permits or allows a child between the ages of 2 and 18 years to be present in a theatre when an 'R' film is being shown commits an offence. 201 A child over fourteen attending an 'R' film is guilty of an offence. 202

A member of the police force, or an authorised person can demand from a person their correct name, age and address where they reasonably suspect that the person entering premises where an "R" film is to be shown, is under 18 years of age. 203 If there is reason to believe the evidence given is false, evidence of the particulars may be required to be produced within a reasonable time. 204

It is an offence to sell or deliver an 'R' film to a minor except by a parent or guardian of that minor 205 or to sell or deliver or cause to be sold or delivered an unclassified film 206 or an objectionable film. 207

It is an offence to exhibit or display in a public place or in such a manner as to be visible from a public place, the container wrapping or casing of a classified film without the prescribed markings, 208 or at all in the case of an unclassified film 209 or an objectionable film. 210

A responsible person in respect of a business carried on in or on any premises where classified films are sold must display a clearly visible notice to that effect. 211

5.6.2 Publications

The Tasmanian Classification of Publications Act makes it an offence to sell or deliver an unclassified objectionable publication 212 or a prohibited publication, 213 or cause or permit such a publication to be sold or delivered.

It is an offence to exhibit or display, or cause or permit to be exhibited or displayed, an unclassified objectionable publication 214 or a prohibited publication, 215 in a public place or in such a manner that it is visible from a public place.

It is an offence to sell or deliver a restricted publication to a minor except by a parent or guardian of that minor. 216

A person shall not exhibit or display an unclassified objectionable publication, 217 or a prohibited publication 218 to a minor except a parent or guardian of that minor.

A category 1 restricted publication shall not be exhibited or displayed in a public place unless it is in a sealed package which bears the prescribed markings. 219

A category 2 publication shall not be exhibited or displayed in a public place or in such a manner that it is visible from a public place. 220 It may not be sold or delivered unless it is in a plain opaque package, bears the prescribed markings and has been directly requested. 221

It is an offence to sell a category 2 restricted publication to another person, knowing or having reason to believe that person intends to deliver, exhibit, or display the publication to a minor, other than a minor to which that person is the parent or guardian. 222

A responsible person in respect of a business shall not permit a minor employed in that business to have access to or sell a category 2 restricted publication. 223

5.7 Northern Territory

5.7.1 Films and videos

In the Northern Territory the Classification of Publications Act 1985 prohibits the exhibition in a public place of objectionable films; 224 unclassified films; 225 and 'X' films. 226

Attendance by minors who have attained the age of 2 years, at the exhibition of an 'R' or unclassified film is prohibited. 227 An offence is committed by the exhibitor; 228 the minor if aged 10 years or over; 229 and any person who causes, permits or allows the attendance by a minor. 230

A member of the police force, an exhibitor or an exhibitor's servant or agent can demand from a person their correct name, age and address where they reasonably suspect that the person entering premises where an 'R' film is to be shown, is under 18 years of age or has a child over 2 years of age in their control. 231 If there is reason to believe the evidence given is false, evidence of the particulars may be required to be produced within a reasonable time, and the person under suspicion may be required to sign a statement as to those particulars. 232

A film may not be exhibited in a public place unless the classification of the film is displayed at the commencement of the film. 233

Sale or letting on hire or distributing of objectionable films is prohibited 234 as is possession for the purpose of selling or hiring; 235 keeping at premises for the purpose of selling; 236 publishing in a public place; 237 depositing in a public place; 238 and making for the purpose of selling. 239

Sale or letting on hire of an unclassified video tape is prohibited. 240

It is an offence to sell or let on hire a film which bears an incorrect classification. 241

The sale, letting on hire or delivery of an 'R' or 'X' film to a infant is prohibited 242 except by a parent or guardian of that infant.

An 'R' or 'X' film must be exhibited or displayed only in a restricted publications area. 243 The publication shall not be delivered to a person who has not made a direct request for it, and must be delivered wrapped or contained in plain opaque material. 244

A person offering films for sale or hire must display signs containing the prescribed information relating to classification on the premises used for sale or display. 245

A person in charge of a restricted publications area must not permit an infant to enter that area 246 and must display a prescribed notice at each entrance to the area.

5.7.2 Publications

The Northern Territory Classification of Publications Act prohibits the sale or letting on hire of objectionable publications; 247 the possession for the purpose of selling or hiring; 248 the keeping at premises for the purpose of selling; 249 the publishing in a public place; 250 the depositing in a public place; 251 and the making for the purpose of selling of objectionable publications. 252

A category 1 or 2 restricted publication may not be sold, or delivered to a child other than by a parent or guardian of that child. 253

A category 1 publication may only be exhibited or displayed in a public place if it is contained in a sealed package, and must bear the prescribed markings. 254

A category 2 publication may only be exhibited or displayed in a restricted publications area, and must bear the prescribed markings. 255 It may only be delivered to a person who has made a direct request for the publication and must be contained in a plain opaque wrapping. 256

It is an offence for a person in charge of a restricted publications area to allow a child to enter that area. 257

5.8 Western Australia

5.8.1 Videos

In Western Australian the Video Tapes Classification and Control Act 1987 prohibits the exhibition of an unclassified video tape in a public place. 258 An offence is committed by the person who conducts the exhibition and a person who has the management of the place.

Attendance by minors who have attained the age of 2 years, at the exhibition of an 'R' or unclassified video tape is prohibited. 259 An offence is committed by the exhibitor and manager of the premises; 260 the minor if aged 15 years or over; 261 and any person who causes, permits or allows the attendance by a minor. 262

Sale or display of unclassified video tapes is prohibited. 263 It is an offence to sell or give an 'R' video tape to a minor except by the parent or guardian of that minor. 264 The purchase by a minor over the age of 15 years of an 'R' or unclassified video tape is also an offence. 265

Video tapes for sale must carry the prescribed classification markings 266 and premises used for the sale of films must display a notice setting out the classifications. 267

Video tapes with an 'R' classification may not be displayed for sale except in a restricted area 268 and unclassified video tapes must not be kept on premises which sell classified video tapes. 269

5.8.2 Films

The Western Australian Censorship of Films Act 1947 prohibits the exhibition of a film unless it has been approved by the censor or exempted by the Act ( includes films registered under the Customs (Cinematograph Films) Regulations). 270 It is an offence to exhibit or cause to be exhibited any film otherwise than in the form approved by the Censor. 271

It is an offence to exhibit a restricted exhibition picture in a picture theatre when a child over the age of 2 years is present. 272

An adult who causes, permits or allows a child over the age of 2 years to be present at the exhibition in a picture theatre of a restricted exhibition picture commits an offence. 273

A child of 14 years or more commits an offence by attending the exhibition of a restricted exhibition picture. 274

A member of the police force may demand from a person reasonably suspected of being under 18 years of age at the exhibition of a restricted exhibition picture, their correct name, age and address, and require the person to produce evidence of the correctness of the information within a reasonable time. 275

5.8.3 Publications

The Western Australian Indecent Publications and Articles Act 1902 prohibits the sale and almost any dealing with an indecent or obscene publication or article. 276

It is an offence to sell, hire, publish, distribute or exhibit a restricted publication in a public place 277 or to sell a restricted publication to a minor. 278 Exhibition of a restricted publication inside a shop is also prohibited. 279

Persons wishing to sell restricted publications must apply to the State Advisory Committee on Publications for registration. 280

6. Advertising

6.1 Australian Capital Territory

6.1.1 Films and videos

In the Australian Capital Territory advertising of pornography is covered by the Publications Control Ordinance 1989.

Advertising matter which falls into any of the categories above for films refused classification, shall be refused approval. 281

A film may not contain an advertisement for any other film with a classification higher than that of the original film. 282

A notice about classifications must be displayed in a conspicuous place and in a form that may easily be read, on premises where classified films are sold, hired or distributed. 283

6.2 New South Wales

6.2.1 Films and videos

In New South Wales the Film and Video Classification Act 1984 provides that where an advertisement has been classified by the censor it must only be used in accordance with that classification. 284

Advertising unclassified films is prohibited 285 as is advertising a film as having a classification other than its actual classification. 286

A film may not be sold which contains an advertisement for a film of a higher classification. 287

6.2.2 Publications

The Indecent Articles, Classified Publications Act 1975 prohibits advertising which may inform a person that a publication is a restricted publication, or that identifies a person or place from which restricted publications may be obtained. 288

6.3 Victoria

6.3.1 Films and videos

The Victorian Classification of Films and Publications Act 1990 makes it an offence to use an advertisement which has been refused classification. 289

Where an advertisement has been classified by the censor it must only be used in that form and in accordance with that classification. 290

Advertising unclassified films is prohibited as is advertising a film as having a classification other than its actual classification. 291

6.4 South Australia

The South Australian Classification of Publications Act 1974 makes it an offence to advertise a restricted publication category 2 except in a restricted publications area, in another category 2 restricted publication or by way of printed matter delivered to a person upon their written request.

Under the Classification of Films for Public Exhibition Act 1971 every advertisement for a film must state its classification. 292

6.5 Queensland

6.5.1 Films and videos

The Queensland Classification of Films Act 1991 makes it an offence to use an advertisement which has been refused classification. 293

An advertisement must bear the determined markings for the film displayed. 294 Advertising unclassified films is prohibited as is advertising a film as having a classification other than its actual classification. 295

A film may not be sold which contains an advertisement for a film of a higher classification. 296

6.6 Tasmania

6.6.1 Films and videos

The Tasmanian Films Act 1971 requires that an advertisement for a film must show the markings required by the censor. 297 Advertisements may be required to be submitted for approval, 298 and where approved may not be shown in any other form. 299

It is an offence to advertise a film which has not been registered under the Act. 300

6.6.2 Publications

The Classification of Publications Act 1984 makes it an offence to advertise the availability of a category 2 restricted publication, 301 or an unclassified objectionable publication. 302

6.7 Northern Territory

6.7.1 Films and videos

The Northern Territory Classification of Publications Act 1985 makes it an offence to publish unclassified advertising matter. 303 A film may not be sold which contains an advertisement for a film of a higher classification. 304

It is an offence to sell or offer for hire a film in association with an advertisement which has been refused classification. 305

Advertising unclassified video tapes is an offence, 306 as is falsely advertising that a video tape is either classified or unclassified.

6.7.2 Publications

The Act makes it an offence to publish unclassified advertising matter. 307

6.8 Western Australia

6.8.1 Videos

The Western Australian Video Tapes Classification and Control Act 1987 requires that where an advertisement has been classified by the censor it must only be used in accordance with that classification and in the form in which it was approved. 308 Advertising unclassified films is prohibited 309 as is advertising a film as having a classification other than its actual classification. 310 A film may not be sold which contains an advertisement for a film of a higher classification. 311

6.8.2 Films

The Western Australian Censorship of Films Act 1947 makes it an offence to: 312 announce, print, publish, distribute, exhibit, or otherwise disseminate in any way, or cause to be so announced, printed, published, distributed, exhibited, or disseminated, any advertisement of or with respect to any film or portion of a film-

which has not been approved, or an advertisement which has not been submitted for approval as requested or which has been altered after approval.

An advertisement must carry the film's classification 313 with limited exceptions.

6.8.3 Publications

The Western Australian Indecent Publications and Articles Act 1902 makes it an offence to advertise restricted publications. 314

Advertising of indecent or obscene publications is prohibited 315 and an interesting section deems to be indecent: 316

Any advertisement, picture, or printed or written matter relating to any complaint or infirmity arising from or relating to sexual intercourse, or to nervous debility or female irregularities, or which might reasonably be construed as relating to any illegal medical treatment or illegal operation. [Emphasis added].

7. Commonwealth constitutional powers

As already noted, the Commonwealth does not have express constitutional powers in respect of pornography. Most of the Commonwealth's legislative powers are enumerated in section 51 of the Constitution and the powers which could be relevant to regulating pornography are discussed briefly below.

It is unclear whether the recent decisions of the High Court in the Political Advertising Case 317 and Nationwide News v Wills 318 which found the Constitution contained an implication of freedom of political expression would impact on regulation of the sale of pornography, distribution through the post or regulation of pornography using telecommunications under the various heads of constitutional power discussed below. The High Court confined its decision to freedom of political expression which is unlikely to include pornography.

7.1 External affairs power

Section 51(xxix) gives the Commonwealth power to make laws with respect to external affairs. The Commonwealth has executive power to enter into international agreements on any matter, not limited by its specific legislative powers under the Constitution. In the Tasmanian Dams Case 319 and earlier cases, the High Court established that the external affairs power enables the Commonwealth to make laws giving effect to international obligations imposed by a bona fide international agreement or by customary international law on any subject. 320 Laws based on international agreements must however be a reasonable implementation of the agreement.

The Commonwealth may also have power to legislate to implement a recommendation of an international body or on matters of international concern. 321

The Commonwealth could legislate in relation to pornography to implement an international agreement which Australia had ratified.

7.2 Corporations power

Section 51(xx) of the Constitution gives the Commonwealth power to make laws with respect to, 'foreign corporations, and trading and financial corporations formed within the limits of the Commonwealth'. This power has been used for example, to enact the Trade Practices Act which regulates some trading activities of corporations. However, the extent of the activities which can be regulated under the corporations power is unclear. While acts of corporations done for the purposes of trade can be regulated, there is also some support for the proposition that all external activities of a trading or financial corporation can be regulated.

The Commonwealth has scope to regulate the trading activities of corporations selling and\or distributing pornography, subject to the s.92 requirement of free trade discussed above.

7.3 Territories power

Section 122 of the Constitution gives the Commonwealth plenary power to make laws for the government of the Territories. 322 As noted above the Australian Capital Territory legislation relating to pornography is controlled by the Federal Parliament. It is however unlikely for political reasons that the Commonwealth would intervene to impose laws relating to pornography in the Northern Territory.

7.4

Postal power

Section 51(v) of the Constitution gives the Commonwealth power to regulate postal services. The Commonwealth could therefore regulate or prohibit the sending of pornography through the post. The Australian Postal Corporation Act 1989 does not contain such a prohibition although Australia Post is required to perform its functions consistently with any general policy of the Commonwealth Government notified by the Minister under s.48 of the Act; 323 any directions given by the Minister under s.49; 324 and obligations under any conventions ratified by Australia. 325

Section 85s of the Commonwealth Crimes Act 1914 however prohibits a person from knowingly or recklessly using the post (or telecommunications, see below) to menace or harass another person or in a way which reasonable persons would find offensive.

It is unclear whether regulation/prohibition of pornography through the post would contravene s.92 of the Constitution which guarantees free trade between the States. Although in the recent case of Cole v Whitfield 326 the High Court confined s.92 to only prohibiting regulation which was discriminatory and protectionist the scope of s.92 is still receiving elabouration in the High Court. 327

7.5 Telecommunications power

Section 51(v) of the Constitution also gives the Commonwealth power, subject to s.92) to make laws with respect to telecommunications. The Commonwealth can regulate or prohibit 328 pornography on TV, radio, cable- pay TV, telephones, computers using telephone cables and programs received in Australia by satellite (although some of these areas would be difficult to enforce).

7.6 Trade and commerce power

Section 51(i) of the Constitution allows the Commonwealth to make laws with respect to 'trade and commerce with other countries and among the states.' Under this power the Commonwealth has passed the Customs Act 1901 and Regulations which control imports, including the import of pornographic or obscene publications. This power does not however allow the Commonwealth to make laws relating to the production and sale etc. of pornography in the states.

Footnotes 1 Attorney- General's Explanatory Statement. 2 W.A.- State Advisory Committee on Publications; Tas - Publications Classification Board; Qld - Publications classification officer. 3 Parliament of the Commonwealth of Australia. Report of the Joint Select Committee on Video Material Canberra: AGPS, 1988. 4 Law Reform Commission. Report No. 55 Censorship Procedure. Canberra: National Capital Printing, 1991. 5 Parliament of the Commonwealth of Australia. Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Telecommunications Technologies: Final Report. Canberra: Senate Printing Unit, Parliament House, 1992. 6 Reg 4A(2). 7 Reg 4A(2AA). 8 Reg 4A(4). 9 S.9. 10 S.10. 11 S.10A. 12 S.10B. 13 S.27. 14 'Person aggrieved' is not defined in the legislation and would include persons other than the film importer. 15 Reg 39. 16 S.25. 17 S.25. 18 S.30. 19 S.36. 20 Publication Control Ordinance 1989, s16. 21 S.19. 22 S.19. 23 S.20. 24 S.36. 25 S.9. 26 S.9. 27 S.10. 28 S.19A, S.29. 29 S.12. 30 S.15. 31 S.11A. 32 S.17. 33 S.13. 34 S.13. 35 S.13. 36 S.8. 37 S.9. 38 S.11. 39 S.13. 40 S.17. 41 S.3. 42 S.3. 43 S.13. 44 S.13. 45 S.13. 46 S.13. 47 S.14. 48 S.15. 49 S.15. 50 S.9. 51 S.9. 52 S.10. 53 S.12. 54 S.14. 55 S.9. 56 S.9. 57 S.10. 58 S.11. 59 S.21. 60 S.21. 61 S.3. 62 S.3. 63 S.3. 64 S.23. 65 S.26. 66 S.26A. 67 S.13. 68 S.15. 69 Which is the Classification of Publications Act 1985 as amended by the Classification of Publications Act 1991 and with appropriate change in title of the Act. 70 The classification of Publications and Films Amendment Bill 1992. 71 Clause 56B. 72 Clause 56T(1). The Opposition introduced a Criminal Code Amendment Bill on 30 September 1992 which seeks to insert a new s.137A relating to child pornography (similar to the clauses in the Government Bill) into the Queensland Criminal Code. The rationale for this is that the child pornography provisions should be contained in the Criminal Code as s.137 of the Code makes it an offence to publish child pornography. 73 S.29. 74 S.29. 75 S.3. 76 S.29. 77 S.30. 78 S.32. 79 S.34B. 80 S.37. 81 S.37. 82 S.46. 83 S.20. 84 S.20. 85 S.20. 86 S.22. 87 S.9. 88 S.9. 89 S.10. 90 S.13. 91 S.15A. 92 S.16. 93 S.19. 94 S.12. 95 S.12. 96 S.14. 97 S.22. 98 S.9. 99 S.5. 100 S.10. 101 S.8. 102 S.9. 103 S.20. 104 S.12. 105 S.19. 106 S.19. 107 S.19. 108 S.5. 109 S.6, S.7. 110 S.8. 111 S.9. 112 S.20. 113 S.19. 114 S.19. 115 S.19. 116 S.19. 117 S.19. 118 S.20. 119 S.20. 120 S.21. 121 S.22. 122 S.23. 123 S.32. 124 S.30. 125 S.31. 126 S.27. 127 S.28. 128 S.17. 129 S.18. 130 S.18B. 131 S.22, S.39. 132 S.23. 133 S.24. 134 S.25. 135 S.40. 136 S.26. 137 S.35, S.41. 138 S.34. 139 S.30. 140 S.31. 141 S.41. 142 S.43. 143 S.44. 144 S.32. 145 S.48. 146 S.49, S.50. 147 S.53. 148 S.51. 149 S.52. 150 S.57. 151 S.47. 152 S.47. 153 S.47. 154 S.47. 155 S.60. 156 S.18. 157 S.18. 158 S.14A. 159 S.14. 160 S.14. 161 S.14. 162 S.14. 163 S.18. 164 S.18. 165 S.18A. 166 S.4. 167 S.5. 168 S.6. 169 S.6. 170 S.6. 171 S.21. 172 S.22. 173 S.24. 174 S.23. 175 S.25. 176 S.38. 177 S.38. 178 S.34, S.39. 179 S.33. 180 S.29. 181 S.30. 182 S.40. 183 S.43. 184 S.42. 185 S.41. 186 S.31. 187 S.12. 188 S.13. 189 S.13. 190 S.3. 191 S.17. 192 S.15. 193 S.16. 194 S.20. 195 S.34. 196 S.41. 197 S.41. 198 S.6. 199 S.16. 200 S.9. 201 S.9. 202 S.9. 203 S.9 Films Act. 204 S.9 Films Act. 205 S.34. 206 S.38. 207 S.41. 208 S.35. 209 S.39. 210 S.41. 211 S.36. 212 S.31. 213 S.33. 214 S.31. 215 S.33. 216 S.17. 217 S.31. 218 S.33. 219 S.17. 220 S.17. 221 S.17. 222 S.29. 223 S.29. 224 S.42. 225 S.38C. 226 S.38C. 227 S.38.D. 228 S.38D. 229 S.38E. 230 S.38F. 231 S.38G. 232 S.38G. 233 S.38B. 234 S.39. 235 S.40. 236 S.41. 237 S.42. 238 S.43. 239 S.44. 240 S.56. 241 S.55. 242 S.36. 243 S.36. 244 S.36. 245 S.50A. 246 S.50. 247 S.39. 248 S.40. 249 S.41. 250 S.42. 251 S.43. 252 S.44. 253 S.36. 254 S.36. 255 S.36. 256 S.36. 257 S.50. 258 S.32. 259 S.33. 260 S.33. 261 S.34. 262 S.35. 263 S.28, S.29. 264 S.26. 265 S.27. 266 S.23. 267 S.24. 268 S.29A. 269 S.30. 270 S.9. 271 S.17. 272 S.12A. 273 S.12. 274 S.12. 275 S.12. 276 S.2. 277 S.11. 278 S.11. 279 S.11. 280 S.11A. 281 S.28. 282 S.25. 283 S.49A. 284 S.24. 285 S.25. 286 S.26. 287 S.29. 288 S.19. 289 S.27. 290 S.27. 291 S.29. 292 S.8. 293 S.26. 294 S.27. 295 S.28. 296 S.29. 297 S.12. 298 S.13. 299 S.13. 300 S.14. 301 S.28. 302 S.31. 303 S.47A. 304 S.36. 305 S.55. 306 S.56. 307 S.47A. 308 S.20. 309 S.21. 310 S.22. 311 S.25. 312 S.14. 313 S.15. 314 S.11. 315 S.2.

316 S.4. 317 Australian Capital Television Pty Ltd v The Commonwealth, unreported decision of 28 August 1992, Judgment 30 September 1992, F.C. 92/033. 318 Unreported, Judgment of 30 September 1992, F.C. 92/032. 319 Commonwealth v Tasmania (1983) 46 ALR 625. 320 Zines, L. The High Court and the Constitution, 2nd ed., Butterworths, 1987: p.250. 321 See Zines, ibid. for a discussion of this point. 322 The High Court has recently held however, that the Commonwealth cannot delegate its power to impose excises (taxes on production) to the Territories. The High Court also found that the Territories, like the States, are prevented from imposing excises by s.90 of the Constitution: Capital Duplicators Pty Ltd v the ACT, unreported Judgment of 15 October 1992 F.C. 92/0. This judgment effectively meant that the ACT's tax on the production of pornographic videos is invalid under s.90. The Territories and the States can however impose taxes calculated on past sales and this would probably not contravene s.90. 323 S.28(a). 324 S.28(b). 325 S.28(c). 326 (1988) 165 CLR 360. 327 And was discussed in the recent Nationwide News Case, op.cit. 328 Subject to s.92 of the Constitution.

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