| Author: | Hon Daryl Williams AM QC MP Attorney-General of Australia |
| Subjects: | Australia (Other articles) Censorship laws (Other articles) Censorship policies (Other articles) Classification guidelines |
| Issue: | Volume 4, Number 4 (December 1997) |
| Category: | Current Developments |
[This article is an edited version of an address given to Murdoch University, Western Australia on 31 October 1997. In the preparation of this paper I have been greatly assisted by Mr Geoff Holmes, Senior Government Lawyer in the Civil Law Division of the Attorney-General's Department.]
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.
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.
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.
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.
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.
The culmination of this period of change was passage through the Federal Parliament of the Classification (Publications, Films and Computer Games) Act 1995[1]. 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.
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.
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.
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.
It is difficult to appreciate the new scheme and the benefits it confers without some understanding of what preceded it.
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.
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.
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.
Clearly the so called 'national scheme' that existed prior to 1996 was complex and lacked real uniformity. It was a mess.
In the case of films, each decision of the Classification Board was, in fact, made under upto 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 applied[2].
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 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.
The Commonwealth Act adopts the Commission's preferred option for reform[3] - 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. Classification decisions are to be made in accordance with a code agreed between Commonwealth, State and Territory Censorship Ministers.
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]
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 Board[7]. 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 Ministers[8]
Under the Act, with certain limited exceptions, all films are classifiable[9]. A similar regime exists for computer games[10].
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'[11].
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 classification[12].
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 approval[13].
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 Guidelines[14]. 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 Minister[15].
The National Classification Code sets out in the broad criteria for each of the classification categories. The details of what material falls within each of those categories is provided by the more comprehensive Classification Guidelines.
Other matters to be considered in making classification decisions are also set out in the Act.[16]
The Act sets out in ascending order the types of classification for publications, films and computer games[17].
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]
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.
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. 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.
All jurisdictions have participated in this scheme for films and computer games.
Western Australia, uniquely, decided to replicate the relevant provisions of the Commonwealth Act in its legislation and then confer functions on the Commonwealth bodies by agreement between the Commonwealth and Western Australia.[19]
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.
The Act also repealed the Commonwealth controlled ACT Classification of Publications Ordinance 1983 and the Customs (Cinematograph Films) Regulations[20].
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.
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.
I would like to digress briefly to refer to television and on-line services.
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.
Television programs for broadcast free-to-air and on Pay TV channels are classified by classification officers employed by the television networks[21]. 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 legislation[22] and their codes of practice contain similar classification standards.
Classification standards[23] in such codes of practice are based upon the Classification Guidelines for Films and Videotapes[24].
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]
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.
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.
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.
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.
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.
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.
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?
The policy, which only saw full legislative recognition by all jurisdictions in the last decade of the old scheme, has two main elements:
* 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.
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.
Censorship policies became the subject of debate in the Federal Parliament in the early 1970s following a Ministerial Statement[27] 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.
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]
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].
The policy outlined by Mr Hayden was adopted by the incoming Labor Government after its election in 1972.
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 policy[30].
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 Code[31] 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.'
Until reforms in the 1970s and 80s the basis of most of Australian censorship laws rested on concepts of obscenity and indecency.
The classic English definition of obscenity, known as the Hicklin test, was laid down in 1868 by Chief Justice Cockburn when be said:
" . . .I 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]
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]
The trend against the Hicklin test began in 1948 with the case of R v Close[34] 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 sinful thoughts.[35]
The meaning of both indecency and obscenity was taken further in the High Court in Crowe v Graham[36]. 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 matters[37]. Justice Windeyer considered that the question to be asked was whether the material transgresses the contemporary standards of decency of the Australian community[38].
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 1983[40].
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.
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 material[42].
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.
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.
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.
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?
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.
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.
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 Board[44] and Classification Review Board[45].
Following that review, I announced a review of the selection procedures for members of the Classification Board[46]. 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.
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.
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.
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.
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.
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.
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? Do you ban on the basis that a significant and articulate minority find it offensive whereas the majority do not?
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.
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.
You may be interested to know about the way in which the Classification Board makes decisions.
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.
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.
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. 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.
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.
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.
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.
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.
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.
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.
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.
When making classification decisions the Classification Board is required to determine appropriate consumer advice about the content of the films and computer games it classifies[47]. 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.
Australia has been the world leader in terms of providing information to consumers about the content of films and computer games.
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.
Many other countries have adopted a similar approach. Consumer advice labelling is now being taken up in Britain and France. 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.
Community Assessment Panels
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?
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.
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.
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.
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.
Panel members will not be informed in advance of the classification and the consumer advice which has been decided by the Board.
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.
I consider this a very worthwhile initiative.
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.
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.
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.
Another important area or issue of concern is to be found in the area of screen violence and images. Research indicates that this is what people in the community regard as their greatest concern.
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.
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.
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.
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.
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.
I have taken up this matter with the Cabinet and with my colleagues in the States and Territories.
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.
Some violent and sexual depictions are already prohibited. These include child pornography and sexually violent material.
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.
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.
Discussions with State and Territory Censorship Ministers on the matter are continuing.
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.
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.
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.
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. The Government urges all parents to read the consumer advice and to take note of the age based classification rating.
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.
We will not lightly interfere with those rights.
[1] Act No 7 of 1995
[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
[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
[10] section 5
[11] section 5
[12] section 23
[13] sections 29 and 30 respectively
[14] section 9
[15] section 6 and 12 respectively
[16] section 11. These are: a) the standards of 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 of the publication, film or computer game including whether it is of a medical, legal or scientific character; and d) the persons or class of 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
[19] Censorship Act 1996 (Western Australia) section 126
[20] section 98 of the Commonwealth Act
[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 of 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 of the BS Act. Special provisions apply to 'R'- rated materi al 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 of 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 of 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 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
[26] News Release of 17 July 1997
[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.
[30] see eg Restricted Publications Act 1974 (Tasmania)
[31] See the Schedule to the Commonwealth Act
[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
[39] see eg. Classification of Publications Act 1973-74 (South Australia)
[40] Classification of 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
[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 of 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 of 27 December 1996
[47] section 20 of the Commonwealth Act. Consumer advice for 'G' Films is discretionary
[48] eg. Computer Games - Their Effect on Young People, OFLC 1995 and Families and Electronic Entertainment, Monogragh 6, ABA/OFLC, 1996.