Censorship in Australia

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Censorship in Australia is called classification and material though technically being given an advisory rating can officially be Refused Classification which results in the material being banned. The system also has several levels of "restricted" categories, prohibiting sale, exhibition or use of some materials to those who are under a prescribed age. Censorship of video games and Internet sites hosted in Australia are considered to be the strictest in the western world.[1]

Australia is a commonwealth, and responsibility for censorship is divided between the states and the federal government. Under the Australian Constitution, the Federal Parliament has the power to make laws relating to communications and customs. Under the communications power the federal government can regulate the broadcast media (television and radio), online services (the internet), and under the customs power, the import/export of printed matter, audiovisual recordings and computer games. The production and sale of printed matter, audiovisual recordings and computer games solely within Australia lies with the states.[2]

To reduce duplication and ensure some national consistency, the states, territories and federal government have agreed to establish a co-operative national classification scheme. Under this scheme, the Australian Classification Board (a federal body) classifies works. Federal law enforces these classifications with respect to customs, and online services. According to the broadcast services act 1992,[3] the board is not responsible for classifying material on broadcast media, this is completed by the Australian Communications and Media Authority (ACMA)

Since the federal Parliament has no power to criminalise the domestic sale or exhibition of printed matter within the States or Territories of Australia, as part of the scheme, the States and Territories pass their own laws criminalising such sale and exhibition. Although they have delegated their censorship responsibility in general to the Commonwealth, they reserve the legal right in specific cases to either:

  • reclassify works,
  • prohibit works that the Classification Board has allowed, or
  • allow works that the Classification Board has prohibited.

Enforcement of classification laws is through an agreement between the Federal and the eight state and territory governments, so any enforcement requires action by the federal and state police in the arrest and prosecution of anybody violating these laws.

History[edit]

Not only was Lady Chatterley's Lover banned from importation into Australia in 1929, and a book describing the British trial, The Trial of Lady Chatterley, was also banned in 1964. A copy was smuggled into the country and then published locally in 1965 to bypass the federal importation ban.[4] The fallout from this event eventually led to the easing of censorship of books in the country.[5]

The Australian Classification Board was formed in 1970. It is a federal body with the power to classify (and to refuse classification) all films (and, from 1994, video games). From 1994 to 2005 the ACB was overseen by the Office of Film and Literature Classification (OFLC). In 2007, the OFLC was dissolved and the Attorney-General's Department became responsible for the ACB.[6] 1993 saw the introduction of the MA15+ rating to fill in the gap between the M rating and the R18+ rating due to complaints about films such as The Silence of the Lambs being too strong for the M rating (not recommended for younger audiences, though any age is still admitted) but not high enough in impact to be rated R18+ (no one under 18 years of age is admitted).

Current situation[edit]

As of 2010, censorship regime is largely the purview of the Classification Board, a statutory body which operates independently of the Federal Government.

Failure to obtain classification is an implicit ban (except for exempt films and games, and publications whose content is not sufficient to warrant restriction to adults) and the Classification Board occasionally refuses to give classification. All feature films, videos, computer games, and magazines that contain sexual content for commercial release are required to be submitted to this body, made up of "community representatives" appointed by the government for three- or four-year terms.

Some films (those made for educational or training purposes, for instance) are exempt from classification under certain conditions. Film festivals and institutions such as ACMI (Australian Centre for the Moving Image) must apply to the Classification Board to have the films on their proposed program made exempt from classification for the purpose of screening at a particular film festival or event. If the Classification Board believes an unclassified work, in their estimation would receive an X18+ classification if it were to be classified they will not grant an exemption for public screening as an X18+ cannot be exhibited. Film festivals may be required to age-restrict entrance to a festival or screening.

In addition to the Classification Board, the Australian Communications and Media Authority is also active in making recommendations and setting guidelines for media censorship. Confusion has recently[when?] arisen between the bodies over censorship of mobile content (see below).

The Classification Board is not responsible for classifying television shows. Television is regulated by the ACMA, and the content of free-to-air commercial television is industry-regulated under the Australian Commercial Television Code of Practice. However, the Classification Board does administer the classification of TV programmes for private sale (e.g. DVD and video), using the same rating classes and advisory graphics as for feature films.

Feature films[edit]

The classification system for visual content is largely standardised for television, videos, and feature films. The current guidelines, which have changed relatively little over the past few years, may be summarised as follows:

Exempt from classification
The "E" rating indicates material that is exempt from classification.
For general exhibition
The G rating indicates material that is suitable for all ages. Violence must "have a low threat and be justified by context", sexual activity, nudity and drug use may only be "very discreetly implied", and coarse language must be "very mild and infrequent".
Parental guidance recommended for viewers
The PG rating recommends parental guidance for young viewers. It is more relaxed in all categories. Violence should be mild and infrequent, and drug use and nudity should be justified by context. Coarse language must be mild and justified by context. This category allows the use of words such as "shit" and "bitch".
Recommended for audiences
The M rating is recommended for people with a mature perspective but is not deemed too strong for younger viewers. Language is moderate in impact, allowing the use of words such as 'f'word', but "aggressive or strong coarse language" should be infrequent, and sex may be moderately implied. Sexual violence must be limited. Drug use can be depicted in context. This is the highest unrestricted rating.
Mature Accompanied for those under 15
The MA15+ rating is restricted to those 15 and over, with those under 15 having to be accompanied by a parent or legal guardian to legally view the film. It may contain strong bloody violence if justified by context, strong implication of sexual activity, and strong impact coarse language (though "very coarse language" should be infrequent), and "strong themes". Use of the word "cunt" usually results in this rating.
No on under 18
The "R18+" rating is restricted to those 18 and over, meaning those under 18 cannot legally view the film. Themes, violence and coarse language are virtually unrestricted however sexual violence must be "justified by context", and sexual activity can be "realistically simulated". This is a general guideline rather than an explicit rule, and films such as 9 Songs, The Brown Bunny and Romance have contained unsimulated sex.

A film is Refused Classification if it contains material that offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that it should not be classified, meaning that it is banned. The distribution and exhibition of unclassified films is a criminal offence that carries a fine of up to A$275,000 and/or 10 years jail.

Initially introduced solely for feature films and games, the icons shown above have been in use by Australian television networks since February 2006.

Television[edit]

Although not regulated by the Classification Board, television classification guidelines are similar, but not identical as many TV shows and films are given harsher or more lenient classifications when broadcast on television.[7] News and current affairs programs are exempt from classification but uses a super text symbol instead. Usually, a content warning will read as follows: "The following movie/programme has been classified (Classification). It contains (Content descriptors). (Channel/Network name) recommends that it is suitable for all audiences(G)/parental guidance for young viewers(PG)/viewing by mature audiences(M)/not suitable for viewers under 15 years(MA15/AV15) or on Channel Nine's programs as follows: "The following programme/(Programme name) has been classified (Classification). The Nine Network recommends that it is suitable for all audiences(G)/parental guidance for young viewers(PG)/viewing by mature audiences(M)/not suitable for viewers under 15 years(MA15/AV15). And It contains (Content descriptors).

Recommended for preschoolers
P rated material is free for preschoolers, now airing on digital channels 7TWO, GO! and ELEVEN from 1 January 2013 due to new penalties and fines and from 4 November 2013 due to launch of breakfast and morning shows.
Recommended for children
C rated material is free for children, now airing on digital channels 7TWO, GO! and ELEVEN from 1 January 2013 due to new penalties and fines and from 4 November 2013 due to launch of breakfast and morning shows. It is similar to the G and PG classifications in terms of film content. It should be of note that some programs that have been rated C on Australian TV have been rated PG when released on DVD. Some examples include Wicked Science and Cybergirl.
For general exhibition
G rated material is deemed free for general exhibition.
Parental guidance recommended for young viewers
PG rated material recommends parental guidance for young viewers. PG rated material cannot be screened between 6 am and 8:30 am and between 4 pm and 7 pm on weekdays on primary channels due to commitments to nightly news, sport and current affairs programs. primary channels also cannot be screened between 6 am and 10 am on weekends. These restrictions do not apply to digital channels, which can screen PG material at any time.
Recommended for mature audiences
M rated material is recommended viewing by mature audiences. M rated material can be screened any time between 8:30 pm and 5:00 am, and may also be screened during the day between 12:00 pm and 3:00 pm on schooldays. Many films are censored in order to meet the PG, or M guidelines in order for commercial stations to air them at an earlier time slot, but the edits are usually minor. However, people under 13 can still view it in cinemas, however this is not recommended, as it is designed for mature audience viewing.
Recommended for mature audiences for 15 years and overAdult Violence for 15 years and over There are two 15+ ratings, MA15+ (introduced in 1993) and AV15+ (introduced in 1999).[8] Both ratings mean that the programme is unsuitable for viewers under 15 years of age, but this is not legally restricted as TV is a broadcast medium. MA15+ rated material can be shown between 9:00 pm and 5:00 am. The AV15+ rating signifies that the program contains significant violence, and may only be shown between 9:30 pm and 5:00 am. If it is being viewed in a cinema, an adult must accompany a child if they are under 15.

R18+ movies cannot be aired on Australian television, except on adult channels with fees. Some R18+ rated movies are modified by having their strong violence, horror, sexuality or drug use toned down to obtain an MA15+ or AV15+ rating, to enable broadcasting. Some R18+ movies have also been modified to enable broadcast on non-chargeable Australian television, include Eyes Wide Shut, Basic Instinct, Pulp Fiction (not aired until 2009), Villain[disambiguation needed] (not aired until 2011), Saw, Saw II, Wolf Creek, The Tripper, The Midnight Meat Train, Eastern Promises, Oldboy, Feast, Reservoir Dogs, Shoot 'Em Up Hard Target, Kill Bill and vintage Australian-made music videos on GO! or GEM. However, the violence in such films is usually modified to make the films more appropriate for an MA15+ or AV15+ rating. Viewers under 15 watching MA or AV is a criminal offence that carries a fine of up to A$275,000 and/or 10 years jail.

Australian broadcast television is considered more relaxed about sex and coarse language than the broadcast networks in the United States. In the 1990s Australian courts ruled that coarse language was no longer offensive due to its common usage and TV networks began allowing the word "fuck" to go to air, particularly where it was seen as vital to the storyline of a movie. Later "cunt" was also broadcast but only when it was vital to the storyline however, some regional stations still choose to censor it.[9] Since 2002, programs featuring frequent coarse language such as The Osbournes, and more recently, Gordon Ramsay's various kitchen series (Hell's Kitchen and Kitchen Nightmares) which both frequently use such obscene words as "fuck" and "cunt" are broadcast uncensored with an MA rating.[10] Free TV Australia, which represents the commercial networks, says the number of complaints about offensive language in television programs has averaged less than one a week over the past decade however, this does not include email or telephone complaints as only written complaints are investigated.

Explicit sex scenes have also become more common. Channel Nine's crime drama Underbelly has frequent coarse language and sex (including explicit anal rape) with one episode featuring a "drug-fuelled orgy with prostitutes accompanied by the Spiderbait song "Fucken Awesome"". This top rating, and M-rated, series has been cited in the media as an example on the issue of "how far we should go". Despite being M on television all the seasons have been classified MA15+ on DVD and some of the episodes that aired with the M rating have been found to breached the code of conduct outlined by ACMA.[11] In contrast, the full frontal nudity once common in popular TV shows such as Number 96 since the early 1970s have become less frequent due to the increasing censorship of gratuitous nudity.[12][13]

Subscription television[edit]

Subscription television is subject to the same classification regime as free television but is able to carry R18+ rated material, but must ensure that the material is restricted to access by those with appropriate disabling devices.[14]

In practice, R18+ material appears predominantly on the Adults Only cable channel but also at times on the foreign-language World Movies channel. X18+ pornography can be legally shown in the ACT.

News and current affairs[edit]

News and current affairs programs shown on TV are exempt from classification.

Advertising[edit]

There are numerous subtle restrictions on advertising in Australia. For example, lawyers in most Australian states are restricted in advertising concerning personal injury compensation law. In New South Wales all advertising concerning personal injury compensation is prohibited. In Queensland print and web site advertising is permitted to a limited extent but television and radio advertising is strictly banned (see below: Censorship of Personal Injury Compensation). In Victoria it is illegal to advertise any aspect of a brothel business.

There is also a voluntary Code of Practice covering the advertising industry. A company specialising in erection problems which pushes the boundaries of this code has a national campaign of television and billboard adverstisements. The TV ads feature two men who took the companies treatments playing the piano before an audience with their newly enhanced body parts. In a recent case of voluntary censorship, the billboards which had the text "WANT LONGER LASTING SEX?" in large red letters followed by the name of the company in very small writing was more controversial. Following complaints from the public the company placed a large sticker over the "EX" so it would read "S-censored".

Books[edit]

Usually only certain types of prohibited pornography, serious encouragement of crime, instructions on suicide and seditious literature are banned from publications in Australia as recent history has shown.[15]

Although the Office of Film and Literature Classification Guidelines state that "adults should be able to read, hear and see what they want", many books are apparently banned or given a restricted classification simply because they may offend certain segments of the population.[16] (see List of books banned in Australia.) Under particularly frequent attacks are books containing erotica, those concerning illegal drugs, and those discussing end-of-life issues (particularly those discussing or condoning assisted suicide). For example, in December 2006 the voluntary euthanasia book The Peaceful Pill Handbook was classified by the OFLC as X18+ and approved for publication. A month later, on appeal from the Australian Attorney General Philip Ruddock and Right to Life NSW, the book's classification was reviewed by the Literature Classification Board and rated RC (refused classification).[17][18]

Enforcement of book bans is sometimes sporadic. In their book TiHKAL, Dr. Alexander and Ann Shulgin state that their earlier work PiHKAL, which was banned in Australia, was apparently standard issue among police and lawyers attending a court case in which Dr. Shulgin served as an expert witness for the defence.

Lady Chatterley's Lover was banned in Australia between 1929 and 1965, and a book describing the British trial, The Trial of Lady Chatterley, was also banned. A copy was smuggled into the country and then published widely. The fallout from this event eventually led to the easing of censorship of books in the country, although the country still retains the Office of Film and Literature Classification. In early October 2009, Australia Post banned the sale of the book in their stores and outlets claiming that books of this nature don't fit in with the 'theme of their stores'.

The Melbourne bookstore Polyester Books, which stocks unusual books of many genres, has been raided by police on two occasions for violation of censorship laws. In addition, several adult book stores have been raided by more than 60 police in Sydney. Australian customs also actively seeks and seizes books imported by individuals.

Video pornography[edit]

All the states actually go further than Commonwealth law requires and ban the sale of X18+ rated material,[citation needed] though possessing it after ordering it from elsewhere is legal (except in parts of the Northern Territory). Therefore, all legal sale of X18+ rated material in Australia occurs by mail order from the Northern Territory and the Australian Capital Territory.[citation needed] In practice, sex shops commonly carry extensive stocks of X-rated films regardless of the law.[citation needed] However the police still can use the laws to raid premises, seize goods (and perhaps prosecute) as happened recently in St Marys, New South Wales[19]

Restrictions on the "X18+" category of videos were tightened[20] in 2000 including the restrictions on portrayal of fetishes, and of actors who appear to be minors, including women with a small bra cup size, after failed attempts by the Howard government to ban the category entirely, and then replace it with a new "NVE" category which would have had similar restrictions.

The Internet[edit]

Australia's laws on Internet censorship are amongst the most restrictive in the western world. However, the restrictive nature of the laws has been combined with almost complete lack of interest in enforcement from the agencies responsible.[21]

Some of the interesting exceptions include an attempt by then NSW Police Minister Michael Costa to shut down Melbourne Indymedia, a case in 2001 involving the US Secret Service that was eventually pleaded out, and an attempt by the FBI using the Australian Federal Police to censor a Victorian they alleged was posting threats to the US.[citation needed]

A collection of both federal and state laws apply, but the most important is the federal legislation which came into effect on 1 January 2000.

If a complaint is issued about material on the Internet, the ACMA is empowered to examine the material under the guidelines for film and video. If it is found that a) the material would be classified R18+ or X18+, and the site does not have an adult verification system, or b) the material would be refused classification:

  • If the site is hosted in Australia, the ACMA is empowered to issue a "takedown notice" under which the material must be removed from the site.
  • If the site is hosted outside Australia, the site is added to a list of banned sites.

This list of banned sites is then added to filtering software, which must be offered to all consumers by Internet Service Providers and the Australian Government.

On 31 December 2007 the Telecommunications Minister of the newly elected Labor government, Stephen Conroy, announced that Australia would introduce mandatory internet filtering. Once more the reason given is that mandatory filtering is required to "provide greater protection to children from online pornography and violent websites".[22]

As of November 2008, the plan includes two blacklists, one of which will filter illegal content according to internet content laws as well as other "unwanted" content, and the other will also filter content unsuitable for children. Internet users will be able to opt out of the secondary blacklist for children, but will not be able to opt-out of the primary filter, sparking free speech concerns.[23] No statement has been made about what content will be considered "illegal", or what Stephen Conroy means by "unwanted".

Slated for blocking, should the "Clean Feed" Act be passed by Australia's Federal Parliament, is the website of Dr Philip Nitschke's banned book, The Peaceful Pill Handbook. The inclusion of Nitschke's euthanasia book's website came to light after the Government's list of would-be banned websites was leaked to wikileaks.org. The Peaceful Pill Handbook was listed on the leaked internet website blacklist, wedged in alphabetical order between the porn sites panty-ass.com and pickyourperversion.com.[24]

Lawyer internet statements concerning personal injury compensation are censored (see below: Censorship of Personal Injury Compensation).

Video games[edit]

Controversy in the early 1990s over games like Night Trap and Mortal Kombat saw the introduction of a classification scheme for video games in 1994.

In 2005 games became subject to the same classification ratings and restrictions as films, in response to confusion by parents.[25] As a part of this the G8+ rating was replaced with PG.[26]

Exempt from classification
The E rating indicates material that is exempt from classification. Games exempt from classification usually include online titles (such as The Sims Online) in which the content cannot be regulated, and educational games.
For general exhibition
The G rating indicates material that is for general play. Violence must "have a low threat and be justified by context", sexual activity, nudity and drug use may only be "very discreetly implied", and coarse language must be "very mild and infrequent".
Parental guidance recommended for young viewers
The PG rating recommends parental guidance for young players. It is more relaxed in all categories. Violence should be mild and infrequent, and drug use and nudity should be justified by context. Coarse language must be mild and justified by context.
Recommended for mature audiences
The M rating is recommended for mature but moderately young audiences, around the teen years. Language is relatively free, but "aggressive or strong coarse language" should be infrequent, and sexual innuendo is freely thrown around and sex may be mildly implied, and there is slightly more violence present. Drug use can be depicted in context. This rating is not restricted.
Mature Accompanied for those under 15
The "MA15+" rating is restricted to those 15 and over, those under 15 cannot legally play or buy the game without being accompanied by a legal guardian. It can contain strong gruesome violence if justified by context, strong implication of sexual activity, strong coarse language (though "very coarse language" should be infrequent), and "strong themes".
No on under 18
The "R18+" rating is restricted to those 18 and over, meaning those under 18 cannot legally view/play the game. Themes, violence and coarse language are virtually unrestricted however sexual violence is not allowed to be depicted but implied only if justified by context and drugs related to incentive or rewards must be kept at a bare minimum.

Originally there was no R18+ rating for video games, meaning that any game that exceeds the MA15+ classification would be automatically Refused Classification and banned, but on 22 July 2011, a meeting of attorneys-generals produced an in-principle agreement to introduce the R18+ classification for videogames, however, NSW Attorney-General Greg Smith abstained from the vote. The Home Affairs Minister, Brendan O'Connor, has said the federal government would over-ride NSW and implement the R18+ rating regardless of its decision.[27] Legislation introducing the rating was passed by the Senate in June 2012, with a start of 1 January 2013.[28]

The Grand Theft Auto series has caused controversy in Australia. In 2002, Grand Theft Auto III was withdrawn from sale for allowing players to have sexual intercourse with virtual prostitutes; the game was later reinstated when this action was removed. Specifically, the player could solicit intercourse from a virtual prostitute, and then kill her. The ability to solicit sex from prostitutes in the game was the action that was removed, but the player could still violently murder them. Grand Theft Auto: Vice City was also pre-censored for the same reasons. Though, in 2010 Vice City was classified uncut again receiving a MA15+.[29]

Grand Theft Auto: San Andreas was withdrawn from sale in July 2005 following the revelation that interactive sex scenes were included in the content files on the game's disc; one could not ordinarily access these scenes, but a third party modification, known as the Hot Coffee mod, allowed the player to access these scenes within the game itself, and the inclusion of the scenes on the game disc took the game outside the MA15+ category. The MA15+ rating was re-instated after a modified version was released worldwide by Rockstar Games, removing the content files for the sex scenes.

Grand Theft Auto IV has also prompted editing in the Australian (PAL) version, as Rockstar was worried it might get a RC rating. In the American release, sexual encounters with prostitutes occur inside the player's vehicle and the player has the ability to rotate the camera for a clearer view of what transpires. In the censored Australian version, the camera is fixed behind the vehicle, which rocks from side to side with accompanying audio effects. It is impossible for the player to view the inside of the car.[30] Rockstar later decided to rate the uncut version of the game which went on to receive a MA15+ and a patch was later released for the PS3 and Xbox 360 to uncensor the game.

In 2005, 50 Cent: Bulletproof was banned for encouraging gang violence (a version removing the game's Arcade Mode, cutting down on gore and with an automatic Game Over for killing innocents was given an MA15+ rating), while Marc Ecko's Getting Up: Contents Under Pressure was also banned for glorifying illegal graffiti tagging, and Reservoir Dogs was banned because the Australian government disliked the fact that the player was able to shoot the heads off of hostages during a bank heist. The highly violent and controversial Postal and its sequel, Postal², have also been banned in Australia for similar reasons.

On 4 July 2008, Fallout 3 was refused classification by the OFLC[31][32] due to the "realistic visual representations of drugs and their delivery method (bringing) the 'science-fiction' drugs in line with 'real-world' drugs."[33] A revised version of the game was resubmitted to the OFLC and reclassified as MA 15+ on 7 August 2008 after drug names were changed.[34] It was later clarrified that the only change done to the final version of the game was the name Morphine changed to Med-x. This change was done to all versions worldwide, thus Australia got the same version of the game as other countries uncut with a MA15+.

The lack of R18+ and X18+ ratings for games has been the subject of complaint in the gaming community, particularly on the basis that there is no reason why adults should not be able to see content in games that they would see in a film. One of the main opponents to the introduction of a R18+ rating for video games was the former South Australian Attorney-General Michael Atkinson who has vetoed every attempt to induce one. Following his resignation after the 2010 South Australian elections there appears to be no likelihood of a future veto in the face of public opinion supporting the new classification.[35][36] Although recently Australian video game show Good Game announced that a meeting of the Attorneys-General in March 2008 resulted in a decision that the Australian public would be consulted before a final decision on the status of a R18+ rating for video games would be made.[37]

On 15 September 2009, Left 4 Dead 2. was refused classification by the OFLC[38][39] with the reason being "The game contains realistic, frenetic and unrelenting violence which is inflicted upon "the Infected" who are living humans infected with a rabies-like virus that causes them to act violently". The game was edited and released with an MA15+ classification two months later. This was due to the games creators and an online petition that began circulating shortly after the public became aware of the game being banned.

Around December 2009, the video game Alien vs Predator was refused classification due to graphic gore, with the developer refusing to modify the game.[40] However, the ban was later[when?] overturned by the Classification Review Board, with the Board giving it an MA15+ rating with the warning "strong science fiction violence".

On 11 August 2010, at a public forum Tony Abbott was asked a question about his views on the absence of an R18+ rating for video games and whether he has any policies relating to the subject. His reply was if the Coalition won the upcoming election he would be happy to examine the issue of an R18+ classification rating for video games. Although he admitted he did not know there had been a debate on the issue "If what happens with video games is not roughly analogous to what happens in other areas, that seems silly," he said. He added "Instinctively I'm with you, and it's something I'd be happy to look at, if we are in Government," finishing off with "If you think there is a problem, I would be happy to look at it."[41][42][43][44] However the Liberal/National coalition led by Abbott did not win government, the Australian Labor Party retaining power through a coalition with Green and Independent members.

As of December 2010, Attorney General Robert McClelland appears to be moving on this issue following the release of telephone poll results conducted by the Minister for Home Affairs Brendan O'Connor, showing roughly 80% in support of a R18+ classification.[45]

On 22 July 2011, at a meeting of State and Territories' Attorney-Generals, An agreement was reached by a vote of 7–0 with NSW abstaining from voting for the introduction of an R18+ classification. It is planned to introduce it towards the end of 2011.[46]

An R18+ rating for video games was introduced on 1 January 2013.

In June 2013, Saints Row IV and State of Decay became the first video games to be refused classification since the introduction of an R18+ adults only rating, Saints Row IV for "interactive depictions of sexual violence" (one of the weapons in the game is an anal probe) and depicting illegal drugs as a power-up, and State of Decay for depicting drugs as a power-up.

Music[edit]

Music is mainly regulated by the Australian Recording Industry Association and the Australian Music Retailers Association.

The current classification scheme was introduced on 1 April 2003, with the following four levels:

  • Level 1: WARNING: MODERATE IMPACT coarse language and/or themes

These recordings contain infrequent aggressive or strong coarse language and moderate impact references to drug use, violence, sexual activity, themes and/or any other revolting or abhorrent activity.

  • Level 2: WARNING: STRONG IMPACT coarse language and/or themes

These recordings contain frequent aggressive or strong coarse language and strong impact references to or detailed description of drug use, violence, sexual activity, themes and/or any other abhorrent activity.

  • Level 3: RESTRICTED: HIGH IMPACT Not to be sold to persons under 18 years

These recordings contain graphic descriptions of drug use, violence, sexual activity, themes and/or any other revolting or abhorrent activity that are very intense and have a high impact. They are not permitted to be sold to anyone under the age of 18.

  • Exceeding Level 3: Not to be sold to the public

These recordings contain lyrics which promote, incite, instruct and/or exploitatively or gratuitously depict drug use, violence, sexual activity, themes and/or any other revolting or abhorrent activity in a manner that would cause outrage and/or extreme disgust to most adults. They are not permitted to be released, distributed or sold to the public.

These guidelines take no legal effect. They are merely for the benefit of the public and are strictly self-regulated.[47]

Music artwork[edit]

Another censored area in music is in the area of CD/record artwork and published lyrics, and some bands censor song titles and/or lyrics themselves to avoid legal trouble.

On April 2001, 207 copies of the album Avagoyamugs by the Tasmanian goregrind band Intense Hammer Rage were seized by the Australian Customs Service.[48]

All three band members were jointly charged with importing a prohibited import, selling a prohibited import, and advertising a prohibited import, while one band member was also charged with possessing child exploitation material.

The three were convicted on all charges in the Burnie Magistrates Court, with one member being fined $2500, and the other two being fined $1250 each. Avagoyamugs was classified "Exceeding Level 3" by ARIA (see above) and the seized CDs were forfeited and destroyed.[49]

Political speech[edit]

Australia lacks an explicitly protected form of freedom of speech. Some individuals possess limited forms of free speech, such as parliamentarians in session, University lecturers in a lecture, or people speaking in a designated domain for speeches. In the late 1990s the High Court of Australia found that there was an implied right of free speech only in relation to political or economic matters.[50][51][52][53][54][55][56][57][58]

In addition to explicit law, Australia has stringent defamation laws which effectively extend to cover the globe (see: Gutnick v Dow Jones).

As of 2006, parody and satire are now legally protected in Australia after the government introduced amendments to the country's copyright laws,[59] thus eliminating the possibility of censorship occurring in such a circumstance, as has previously taken place. More information regarding these amendments can be found on the attorney generals department website <http://www.ag.gov.au>.

Creative arts[edit]

In 2004, the Australian Centre for the Moving Image was responsible for the censorship of an Australian artist's work which they had actually commissioned. Images are captured from a video of the artist nailing her body to a tree were reduced in quantity and scale for final presentation to the public, without the artist's consent.

In 2004, Experimenta refused to include the artwork The Empty Show in the publicly installed version of the House of Tomorrow exhibition (it remains on the net.art website[60]) due to images of illegally stencilled graffiti which depicted Mickey Mouse with drugs. The issue of Mickey Mouse being defamed was considered the risk, not the drugs. This censorship was known only to the organisers and the artists involved, and thus comprised a form of self-censorship.

Other Australian artists have received funding from public funding bodies, only to discover that their works are too controversial to be shown in this country, notably George Gittoes, whilst still being shown freely overseas. The Human Rights and Equal Opportunity Commission Act of 1986 discusses the right to freedom of expression.

In 2009, Adelaide Fringe Festival artist Greg Taylor circulated posters, flyers and postcards featuring lifelike female genital images to promote his exhibition called "Cunts and Other Conversations" which is printed in full on the promotional material. The exhibition features 141 porcelain sculptures of women's genitals. Australia Post banned the postcards from mail-sorting and Police, Adelaide City Council and festival organisers have all received "a number of complaints" about the posters and flyers although they all declined to comment on the number received. The council has ordered Taylor to change the offensive word on the sign above the studios street entrance. The Australian Family Association attacked Taylor's use of the word and images as degrading to women saying "there was absolutely no excuse for the public display of the sculptures or the "C" word". Taylor said he was bemused at the criticism: "Critics should ask themselves what they find so disgusting about a woman's body... any derogatory connotations are purely in their head."[61]

Mobile content[edit]

In early 2005, the OFLC began to explore options for the development of guidelines restricting content delivered via mobile telephones.

The Australian Broadcasting Authority released official guidelines for the restriction of mobile content which were intended to be in place for a trial period of 12 months. No penalties were advised for breaches of these guidelines, as it was expected that the largest mobile operators would adhere to them.

Within days of the release of these guidelines, the Australian Communications Authority announced that:

  • Hardcore pornography and all content that would be classified X18+ or refused classification was banned from mobile phones.
  • Phone companies were to check a customer's age before making any content that would be classified MA15+ or R18+ available.
  • Mobile phones with chat room services were to monitor all content.
  • The ABA had been given the power to remove all outlawed content or services.

These laws affect SMS, picture and video services, but they do not affect live, streamed content, which is loosely regulated under the same guidelines as control live broadcasting on public television. The ACMA took over the control of content when it was formed in 2006 by the merger of the ABA and ACA.[62]

Censorship of personal injury compensation[edit]

Lawyers in most Australian states are censored in respect of public statements they are allowed to publish concerning personal injury compensation law. Non-lawyers are also prohibited from publishing statements on the subject in some states. The laws are described as a ban on advertising of personal injury compensation but go much further.

The censorship must be self-administered, and breaches render a lawyer liable to prosecution, disbarment and, potentially, even jail. These laws coincided with the Insurance Crisis, the Ipp report and Civil Liability laws.

In New South Wales all lawyer public statements concerning personal injury compensation are prohibited.

Queensland[edit]

In Queensland television and radio advertising is banned and lawyer statements concerning personal injury compensation law must be censored so as to contain only:[63]

  • The lawyer's name, contact details and area of speciality (print and other "allowed publications" only);
  • The operation of the law of negligence and a person's rights under that law (lawyers' websites only);
  • The lawyer's terms of service (lawyers' websites only).

The Queensland censorship provisions were originally intended to ban distasteful advertisements by some personal injury law firms that promoted "cash for injuries". The Queensland Attorney-General stated in his Second Reading speech when introducing the legislation in 2002 as follows:

The bill also better regulates provocative advertising by lawyers in relation to personal injury services ... the sort of advertising currently broadcast on radio and television does not enhance clients' rights or portray the profession in a particularly positive light.

Section 4 (2) (f) of the Queensland Act refers to "regulating inappropriate advertising..."

However the Queensland government has since given the censorship provisions the strictest possible interpretation and threatened hundreds of lawyers with prosecution.

One of the many outcomes that impact on freedom of expression and free speech is that concerning lawyers' web sites. A lawyer must not even list "personal injury" even merely as a link on a webpage that has no relation to the prohibited subject matter.

In practice, lawyers are prohibited from listing even on their website homepage some of the areas of law they practise in. Photos, images, slogans are prohibited. All references to personal injury compensation law must be censored out of website staff profiles containing anything more than the person's name, contact details and area of expertise.

Some other subject matter that must be censored out of web sites and other publications includes: winning verdicts and settlements; mention of the law firms reputation, expertise and history; testimonials; case histories; the standard of service and many other things that would allow consumers to differentiate among competitors.

The Queensland censorship provisions have not yet been judicially interpreted. It is unknown whether the ultra-strict interpretation contended for by the Queensland government will be upheld by a court.

New South Wales[edit]

In New South Wales, all statements by lawyers concerning personal injury compensation including on websites are banned and strict penalties apply. One lawyer has already been professionally punished and fined $20,000 for making a website statement.

The New South Wales version of the censorship law which is stricter than that of Queensland was considered by the High Court of Australia in 2005.[64] The plaintiffs argued that the law was invalid because it infringed the implied constitutional freedom of political communication and secondly that it infringed Chapter III of the Constitution and the rule of law.

In a majority decision the court held that the New South Wales censorship law was valid. It did not accept that statements merely about personal injury compensation law were of a political nature. It implied however that any statements criticising the censorship itself and tort "reform" would be in the nature of political communication that was protected. The majority also ruled against the plaintiffs on the second argument (but the minority were strongly of the view) that the law unreasonably interfered with lawyers going about their constitutionally protected vocation.

On 20 June 2008, Justice Adams of the Supreme Court of NSW held that clause 34 of the Legal Profession Regulation 2005 which bans personal injury advertising in NSW by non-lawyers, was void because it was Ultra Vires the Legal Profession Act 2004. See: The Council of the Law Society of NSW v Australian Injury Helpline Ltd & Ors [2008] NSWSC 627.

Victoria[edit]

No censorship applies in Victoria.

Western Australia[edit]

The Western Australian censorship rules are similar to those in Queensland. However, television advertising is permitted by ACMA.

Consumer opposition[edit]

The Australian Lawyers Alliance opposes the censorship and believes that "content-rich statements" concerning the availability of all legal services are in the public interest [3].

Consumer groups (e.g. Tort Reform Institute, Insurance Reform) argue that any restriction on lawyer communication is adverse to the public interest. They argue that the public should be fully informed about their rights particularly under consumer protection laws that generate compensation payments, and that censorship that keeps the public under-informed cannot be justified. In their view, the protection of insurance company profits is not a sufficient "public purpose" to warrant the interference in personal freedoms by way of censorship. The ultimate aim of the government and insurers, according to such consumer groups, is to eliminate the expression "personal injury compensation" from the Australian vocabulary and to dissuade citizens from exercising compensation rights by making it "distasteful" to do so.

Exceptions to the censorship provision apply to:

  • Insurance companies, who are permitted to advertise that personal injury claims can be made directly with them; or
  • Statements concerning the defence of personal injury claims as opposed to the pursuit of those claims (except in New South Wales).

End of life issues[edit]

Another form of censorship unique to Australia can be found in the Suicide Related Materials Offences Act (2005) that prohibits the use of telephone, email, fax or internet to discuss the practical aspects of assisted suicide or voluntary euthanasia.[65] The penalty attached to a breach of this aspect of the Australian Criminal Code is a fine of $110,000 (individual) and $550,000 (for an organisation).

Recent controversies[edit]

Heated debates about classification occur on occasions. Since 1995, a total of five films and two books have been banned.

In regard to books, controversy erupted in early 2007, when the Attorney General banned on appeal Dr Philip Nitschke's voluntary euthanasia guide book The Peaceful Pill Handbook. Published in the US, the book is now banned in Australia. Changes in 2001 to the Australian Customs Act means that it is also illegal to import the book into Australia.[66] The recent plans of the Australian government to block the book's website has seen the euthanasia activist Nitschke embark on a national tour of "Hacking Masterclasses" aimed at teaching the book's readers how to circumvent the planned government internet filter.[67][68]

In regard to films, a notable example is Pasolini's Salò o le 120 giornate di Sodoma, which has twice been banned in Australia, and finally granted approval in April 2010. The Home Affairs Minister, Brendan O'Connor, asked the Classification Review Board to reassess the decision,[69] however, the review failed to find any fault in the classification, and the film was released in September 2010.

Starting in 2000 with the film Romance, a new crop of arthouse films that feature short scenes of actual sex have begun to attract closer scrutiny and in two controversial cases have been banned. The two banned films are:

  • Baisez-moi, a French film about two prostitutes who take violent revenge after being raped.[70] In 2000, The film was classified as R-18+. On 25 April 2002, The film was subsequently banned and pulled from cinemas and still remains prohibited in Australia due to exploitative and offensive depictions of sexual violence, extreme violence and depictions of behavior and fetishes that are considered offensive/abhorrent. The Board announced that any person caught selling, distributing, exhibiting, possessing, owning or importing this film will be fined up to A$275,000 and/or even face up to 10 years imprisonment.[citation needed]
  • Ken Park, an American film about teenagers that features a scene of autoerotic asphyxiation, amongst other sexually explicit scenes.[71] The ban however is actually due to exploitative sexual depiction of minors, which is a criminal offence in Australia.[citation needed] In response to the ban, a protest screening was held which was shut down by the police.[72]

Baise-moi was originally given an R18+ classification by the OFLC,[73] however, this was overturned by the OFLC Classification Review Board some 6 months later after the Attorney General of the time, Daryl William, used his powers under Section 42(1)(a) of the Classification (Publications, Films and Computer Games) Act 1995.[74] to request a Review of the classification.

The banning of Ken Park has attracted considerable media attention and political protest. Prominent movie reviewer Margaret Pomeranz, former host of The Movie Show on SBS and now host of At the Movies on ABC, was arrested (and later cautioned and released) along with several others after attempting to screen at a hall what she described as "a wonderful film".[75]

Tom Gleisner, host of The Panel (a prime-time comedy/panel discussion show), openly stated on the show that he had downloaded and watched the film. Former New South Wales Premier Bob Carr stated that he thought the banning of Ken Park and other films is inappropriate, and his Attorney-General Bob Debus would discuss changing the laws with other state Attorneys-General at a then upcoming meeting.[76]

In 1992, Island World Communications Ltd and Manga Entertainment Australia Ltd had Urotsukidoji: Legend of the Overfiend submitted to the OFLC. It was the first animated feature to be banned in Australia and the feature was banned outright like the Violence Jack OVAs which were also released by Manga Entertainment Australia and Polygram Australia. Urotsukidoji was then censored to meet the OFLC's standards. The Australian version is the most censored in the western world, with many fans of anime importing uncensored versions of Urotsukidoji: Legend of the Overfiend from the UK. The rest of the Urotsukidoji series was censored in Australia, with many still importing or downloading the American versions.

In 1997, the former Attorney – General Phillip Ruddock had the OFLC review Manga Video Australia's, Ninja Scroll. It was originally released in 1994 in Australia by Manga Entertainment Ltd. Australia and had the MA15+ rating on the VHS originally, but this was overturned in 1997 when Phillip Ruddock had the anime reviewed and banned in Australia after an uncut screening of the movie on SBS. A few months later it was given the R18+ rating and was uncut, then edited and edited again, eventually using the BBFC cut of Ninja Scroll. This was overturned in 2003 when Madman Entertainment and Manga Entertainment Ltd. released the uncut version.

Violence Jack Volume 1 was banned outright, and Manga Australia and Polygram decided not to release Violence Jack in Australia.

In February 2006 Melbourne businessman Dean McVeigh attempted in court to shut down a website critical of him through a criminal contempt application, but was unsuccessful.[77]

Starting in January 2010, customs officials have been directed by Australian federal government censors to confiscate any porn depicting female ejaculation. Such content has been deemed to be "golden showers" (an act of urinating on one's partner). However Fionna Patten, a spokesman for the Australian Sex Party has stated, "Female ejaculation has now been described in scientific literature as being as real as male ejaculation and women's ejaculate is as different from urine, as men's is"[78]

Upwards referral[edit]

The Australian Broadcasting Corporation operates a system called 'Upwards Referral' to deal with subjects considered sensitive or potentially challenging. The issues, recordings or scenes under contention are referred to upper management within the organisation.[79]

An example of this occurred in November 1988 on the show Blah Blah Blah, when one episode which featured full frontal male nudity by the musical group Lubricated Goat. The incident was repeatedly upwardly referred throughout the ABC management hierarchy, and after heated debate, some footage was edited from the final show.[citation needed]

A full account of the 'Upwards Referral' process is featured in the documentary In the Raw.

See also[edit]

References[edit]

  1. ^ "Australia & New Zealand". OpenNet. 
  2. ^ Jackson, Kim. "Censorship and Classification in Australia". Analysis and Policy Social Policy Group. 
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  5. ^ "Lady Chatterley’s Lover". University of Melbourne. 
  6. ^ Boland, Michaela (14 March 2007). "Censorship: now you see it, now you don't". Australian Financial Review (First ed.). p. 57. 
  7. ^ Commercial Television Industry Code of Practice. "Classification Zones 2.6 The following classification zones apply to all material required to be classified (whether under the Classification Guidelines or the Television Classification Guidelines)."
  8. ^ Farrant, Darrin (17 April 1999). "Clamp on TV sex, violence". The Age (Australia). p. 3. Retrieved 2012-08-05. 
  9. ^ Pellegrini, Sarah (29 September 1999). "Sex Show Has The Last Word". Herald-Sun. p. 12. 
  10. ^ Knox, David (14 October 2008). "Nine / WIN breach Code with Ramsay & Underbelly TV!". tvtonight.com.au. Retrieved 31 January 2010. 
  11. ^ "Underbelly". Refused-Classification.com. 
  12. ^ au/articles/2003/09/19/1063625202157.html X-rated? Outdated The Age 20 September 2003
  13. ^ Warning: Contains coarse language The Australian 7 June 2008
  14. ^ Subscription Narrowcast Television Codes of Practice 2007 (Report). Australian Subscription Television and Radio Association. 2007. p. 3. http://s3.amazonaws.com/assets.astra.org.au/material/codes%5CSNTCodesofPractice2007.pdf. Retrieved 31 January 2010.
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  18. ^ Marr, David (2007). "His Master’s Voice: The Corruption of Public Debate Under Howard". Quarterly Essay 26: 105. 
  19. ^ Police raid St Marys adult store at Sydney Morning Herald.
  20. ^ Office of Film and Literature Guidelines (2000). "2 Films (except RC films) that:
    (a) contain real depictions of actual sexual activity between consenting adults in which there is no violence, sexual violence, sexualised violence, coercion, sexually assaulting language, or fetishes or depictions which purposefully demean anyone involved in that activity for the enjoyment of viewers, in a way that is likely to cause offence to a reasonable adult; and
    (b) are unsuitable for a minor to see"
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  30. ^ IGN: Aussie GTA IV Censorship Update. Au.xbox360.ign.com.
  31. ^ OFLC listing for Fallout 3. Retrieved 12 July 2008.
  32. ^ ''Fallout 3'' Officially Refused Classification in Australia. Xbox360.ign.com.
  33. ^ OFLC Report: Why Fallout 3 Was Banned In Australia[dead link]
  34. ^ classification.gov.au/special.html?n=46&p=156&sTitle=Fallout+3&sMediaFilm=1&sMediaPublications=1&sMediaGames=1&sDateFromM=1&sDateFromY=1970&sDateToM=8&sDateToY=2008&record=229214 OFLC listing for Fallout 3. Retrieved 11 August 2008.
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  36. ^ Moses, Asher (25 February 2008). [http://www.smh.com.au/text/articles/2008/02/24/ 1203788147712.html "R-rated games may be on shelves soon"]. Sydney Morning Herald (Fairfax Digital). Retrieved 27 February 2008. [dead link]
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  41. ^ Madigan, Michael; Packham, Ben (11 August 2010). "Tony Abbott Q&A from Rooty Hill". The Courier Mail (News Limited). 
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  47. ^ ARIA Guidelines. Aria.com.au.
  48. ^ Hobart Mercury, 16 May 2003, "Tassie band fined over CD import charges." by Luke Sayer
  49. ^ When Tasmanian band Intense Hammer Rage sent their latest album to be manufactured by a US record label, they had no idea they'd be prosecuted for importing the finished product back into Australia. Abc.net.au.
  50. ^ Free Speech and The Constitution
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  54. ^ THEOPHANOUS v THE HERALD AND WEEKLY TIMES LIMITED AND ANOTHER F.C. 94/041 Constitutional Law (Cth) – Defamation (1994). Austlii.edu.au.
  55. ^ STEPHENS AND OTHERS v WEST AUSTRALIAN NEWSPAPERS LIMITED F.C. 94/040 Constitutional Law – Defamation (1994). Austlii.edu.au.
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  59. ^ Copyright Amendment Bill 2006. Explanatory Memoranda: "New sub-s 200AB(5) covers uses for parody and satire. This use does not have a non-commercial advantage condition in recognition that parody and satire may take place in the commercial media or other commercial setting. The conditions contained in sub-s 200AB(1) provide appropriate protection for the copyright owner against 'free-riding' for profit or gain."
  60. ^ Experimenta House of Tomorrow Exhibit. Experimenta.org.
  61. ^ Genital posters 'degrade women' The Advertiser 1 March 2009
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  63. ^ Personal Injuries Proceedings Act Qld (PIPA), ss 62 – 66.
  64. ^ APLA v Legal Services Commissioner NSW (2005) 219 ALR 413
  65. ^ "ComLaw Acts – Attachment – Criminal Code Amendment (Suicide Related Material Offences) Act 2005". comlaw.gov.au. Retrieved 11 June 2010. 
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  68. ^ "Euthanasia workshops 'to fight filter'". Sydney Morning Herald. 4 April 2010. Retrieved 11 June 2010. 
  69. ^ Minister asks censors to reassess approval of sadistic film. SMH (17 April 2010).
  70. ^ OFLC Classification Review Board Report re Baisez-Moi.
  71. ^ OFLC Classification Review Board news release re Ken Park's Refused Classification
  72. ^ Needham, Kirsty (7 April 2003). "Police quiz critic after raid". Sydney Morning Herald. p. 5. Retrieved 2007-05-30. 
  73. ^ OFLC Classifies Baise-Moi R18+.
  74. ^ Classification (Publications, Films and Computer Games) Act 1995 42. The persons who may apply for review (1) Any of the following persons may apply to the Review Board for a review of a decision: (a) the Minister; (b) the applicant for classification of the publication, film or computer game concerned or the applicant for approval of the advertisement concerned; (c) the publisher of the film, publication or computer game concerned; (d) a person aggrieved by the decision Classification.
  75. ^ World Socialist Web Site report into the screening of Ken Park. Wsws.org (10 July 2003).
  76. ^ Maddox, Garry (18 June 2003). "Debus wants festival film rethink". The Sydney Morning Herald. p. 9. ISSN 0312-6315. Retrieved 2012-08-05. 
  77. ^ Sledgehammer style fails to silence a critic – Dean McVeigh Vs Cass. Theage.com.au (17 June 2006).
  78. ^ Adult Industry News For The Media. XBIZ Newswire.
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External links[edit]