CHAPTER 4
Serial classification declarations and display of Restricted publications
Introduction
4.1
This chapter will examine two parts of the inquiry's terms of reference:
-
the use of serial classifications for publications (term of
reference (a)); and
-
the desirability of national standards for the display of restricted
publications (term of reference (b)).
4.2
The first section of the chapter considers the serial classification
declaration scheme. Under this scheme, publishers and distributors can apply
for ongoing classification of a number of issues of a publication for a period
of 12 months, based on the classification of a single issue of the publication.
The discussion in this chapter outlines how serial classification declarations
work, before moving to a review of the substantial evidence received by the
committee which highlighted particular problems with this scheme.
4.3
The second part of the chapter describes the varying requirements
between states and territories for the display of Restricted publications;
discusses the need for national standards for the display of these publications;
and considers options for a national standard, including calls to increase
restrictions on access to these publications.
Serial classification declarations
4.4
The submission from the Attorney-General's Department (Department)
explained the operation of the serial classification declaration for
publications:
...a 'serial classification declaration' can be granted by
the [Classification] Board so that a classification of a publication applied to
a single issue of a periodical, also applies to some or all future issues of
the periodical during a set period of time. The [Classification] Board
currently limits the period of a serial classification declaration to 12 months
from the date the declaration is granted.[1]
4.5
The Classification Board conducts compliance checks of all publications
granted a serial classification declaration after a three-month period 'to
determine whether future issues have higher content or breach any other
conditions of the declaration'.[2]
In addition to these compliance checks, audits of publications may also take
place in response to complaints:
The Classification Board provides officers of the
Classification Liaison Scheme with a report of scheduled audits and the titles
of any publications that are the subject of complaint and requests the purchase
of those publications.[3]
4.6
The Department's submission provided details on the numbers of
publications that had serial classification declarations revoked in the last
financial year:
The [Classification] Board revoked the classification of
seven adult publication titles in the 2009/2010 period from a total of 60
serial classification declarations. When a serial classification is audited and
the classification is revoked, the audited issue and future issues (ie those
published after the revocation) become unclassified. The Department advises
relevant law enforcement agencies of unclassified publications by direct
correspondence and through a regular bulletin.[4]
4.7
In response to a question on notice, the Classification Board advised
that, for the calendar year 2010, 49 publications were audited and three
publications failed the audit.[5]
4.8
The committee notes that members of the Senate Legal and Constitutional Affairs
Legislation Committee have pursued the issue of compliance with revocations of
serial classifications through the estimates process.[6]
4.9
The serial classification declarations were highlighted in submissions
and by witnesses as one of the most flawed aspects of the National
Classification Scheme. For example, the Family Council of Victoria argued:
Serial classification for publications, such as Playboy,
do not work. There is no reason that each print of a serial publication should
not undergo classification. It is rather redundant to classify only a handful
of issues and apply them to the complete series of publications.
Furthermore, there is a lack of stringency in the system that
regulates these classifications and it is not unknown for a publication to lapse
into releasing an edition that does not meet the serial classification that has
been imposed upon it. This is a further compelling reason to require every
edition of a publication to be classified.[7]
4.10
The committee received several examples of serious failings in relation
to the use of serial classification declarations. For example, in evidence to
the committee, Ms Barbara Biggins of the Australian Council on Children and the
Media (ACCM) stated:
We [have] very strong concerns...particularly [with] those which
are showing pictures—and I will use the word 'offensive'—depictions of mainly
girls who certainly appear to be under the age of 16 or 18 years. The way that
they are presented was in a very sexually provocative manner. On closer examination,
many of those magazines were either incorrectly classified, in other words,
they were not displaying the classification that had been ascribed to them. In
some cases they were on open display, they were not in plastic bags; and in
some cases, they carried a lower classification sticker than they should have.
We understand that the complaints made about that material
have been very slow to be resolved, and any action about that material even
slower to result. In our view, if that sort of malpractice is out there, then
it warrants a much closer and more frequent examination of whether the
enforcement obligations are being observed, and one year seems to be more appropriate
than two.[8]
4.11
One issue to which a number of witnesses referred is the apparent
breaching of serial classification declarations, with later issues of certain
publications containing material of a higher classification level than was
originally included. This appears to occur despite the compliance checking and
auditing undertaken with respect to publications. For example, Kids Free 2B
Kids asserted that distributors are 'flouting the law' and failing to maintain
material in subsequent issues of a publication at the classification level that
the Classification Board has given to the publication.[9]
4.12
Ms Melinda Tankard Reist from Collective Shout also referred to this issue
in her evidence to the committee:
We have a problem with the whole system of serial
classification, where a porn distributor will submit one issue, which is
probably a less graphic issue, and then they have been given permissioq to
import two years worth. So they save the more graphic ones for after they get
the tick-off.[10]
4.13
Similarly, the Australian Christian Lobby (ACL) drew attention to the
apparent practice of publishers and distributors submitting 'milder' issues to
the Classification Board for the purposes of obtaining a serial classification
declaration:
The [numbers of serial classification declaration
revocations] strongly suggest that some publishers and distributors of
classifiable publications have been submitting 'milder' editions of their
publications for classification, before increasing the level of content once
serial classification has been granted. This type of behaviour represents a
breaking of confidence in the co‐regulatory
environment, where some publishers and distributors abuse the flexibility and
trust afforded them by the classification system and the [Classification] Board.[11]
4.14
The committee also received evidence from the Eros Association, which stated
in its submission that the serial declaration scheme 'is not working in its
current format'.[12]
The Eros Association offered the following reason for the failings of the
system:
The current scenario that plays out is that one supplier modifies
the publication and then has it classified, often as a serial classification.
That company then supplies the publication to its customers, modified according
to the classification. Competitors of this company then often supply their
customers with an unmodified version. When the unmodified version is found in
the market place the company who invested in the serial classification and
acted lawfully has their classification revoked because they are the only ones
who the [Classification Board] can link to the publication. To appeal this
decision they must fork out another $10,000.[13]
4.15
Submissions from both Collective Shout and FamilyVoice Australia
outlined specific instances in which Ms Julie Gale, Director of Kids Free 2B
Kids, had demonstrated the failings of the serial classification system:
Ms Gale identified a number of publications on sale at service
stations and corner stores bearing Category 1 or Category 2 'Restricted' labelling,
but which contained material including pseudo child pornography and incitements
to rape and incest, which should have resulted in the publications being Refused
Classification.
After this material was submitted to the Classification Board
the classifications given by the Board to eight publications were eventually revoked:
Best of Cheri, Finally Legal, Swank, The Very Best of
High Society, Hawk, Gallery, Purely 18 and Live
Young Girls.
Live Young Girls had been given repeated 24‐month serial classifications
as Category 1 Restricted based on issues Vol. 26, no. 5, May 2005 and Vol. 29,
no. 5, May 2008. After Ms Gale submitted three issues of Live Young Girls (December 2006, August 2007, and April 2008) to the Classification Board, the Director
informed Ms Gale in January 2009 that each of these issues had been found to contain
Refused Classification content and that the serial classification based on the May
2005 issue was revoked. Inexplicably, the later 24‐month serial classification based on the May
2008 issue was left in place. It was only when Ms Gale submitted copies of the June
2008, September 2008 and December 2008 issues of Live Young Girls that the
Board moved to revoke this second classification. Had Ms Gale not pressed the issue
further, it is unlikely any further action would have been taken.[14]
4.16
As can be seen from this example, a serial classification declaration for
a publication can be revoked. However, there does not appear to be a process in
place for steps to be taken in relation to checking the compliance of the
publication with a subsequent serial classification declaration which it may
have been granted.
4.17
ACL submitted that the number of revocations of serial classification
declarations indicates a system which is not capable of responding to community
expectations:
As of February 2010, the Classification Board had, 'revoked
the serial classification declarations of 55 publications since the scheme
began in December 2005. Forty-eight of these were originally classified
Category 1 restricted'...
ACL believes that the above figure, of 55 classification
revocations in just five years operation of the serial classification system,
demonstrates a system incapable of adequately responding to community
expectations. Serial classification of publications for two years has proven
too long, providing publishers and distributors of classifiable publications
with too much flexibility, especially when enforcement under the Scheme is
ineffective.[15]
4.18
The committee received a number of suggestions in relation to how the
failings of serial classification declarations should be addressed. Media
Standards Australia (MSA) suggested that there should be 'random spot checks'
of publications, made without notice, to ensure that all issues of a
publication adhere to the serial classification declaration.[16]
In evidence to the committee, Mr Paul Hotchkin from MSA expressed his
dissatisfaction with the current level of compliance checking and auditing of
serial classification declarations:
If it is happening at the moment, why are some of the
publications that are not supposed to be coming through coming through?[17]
4.19
ACL recommended increasing the number of issues of a publication on
which a serial classification declaration is based, and shortening the period
for the declaration:
...the first six issues of any new classifiable publication
entered into the Australian market [should] be subject to mandatory submission
for classification to demonstrate the content of that publication consistently
matches the conditions and restrictions of sale. Serial classification may then
be granted for periods not exceeding six months. The [Classification] Board may
request submission for classification any other issue of the publication.
Failure to comply with that request should result in immediate revocation of
serial classification for that publication, and for any other publication from the
same publisher or distributor. A strong deterrent of this nature is required if
the community is to trust the co‐regulatory
nature of the serial classification system.[18]
4.20
The Catholic Women's League Australia highlighted the need for clarity
regarding the content of each classification category:
...the use of serial classifications for publications—is good
so long as it is clear what can be found under each category and everyone is
clear as to what the classification means. An index of the title and content of
the catalogued material ought to be available and individuals given the right
to challenge the item's location and give reason why its classification should
be changed.[19]
4.21
Ms Melinda Tankard Reist of Collective Shout called for the serial
classification declaration system to be 'ended immediately'.[20]
4.22
Despite clear evidence pointing to the failings of the serial
classification declarations, the committee notes that some support for this
system remains. For example, Ms Irene Graham argued:
Repeal of the serial classification system would, in effect,
penalise law abiding publishers/distributors (collateral damage resulting from
possibly illegal activity by others), and very likely result in increased costs
to consumers and taxpayers (due to increased costs to law abiding
publishers/distributors which would be passed on to customers, and a need to
increase the number of tax-payer funded members of the Classification Board to
deal with weekly/monthly submissions of single publications for
classification).[21]
4.23
Mr Matthew Whiteley maintained that serial classification for magazines
'makes sense as most content in adult magazines is similar from issue to
issue'.[22]
Mr Whiteley went on to suggest that there should, in effect, be no
classification for magazines:
...as a whole, print media in other western countries are
rarely subjected to government classification, especially magazines published
on a regular basis, in which the publisher or distributor has to pay exorbitant
fees to have their publication classified. As print media is being hammered to
death by internet publications, it seems absurd to add extra costs to
publishers, especially when there is no obvious benefit to the community. Adult
publications in Western Europe and North America are not required to submit
magazines, yet there is no scientific or anecdotal evidence which shows the
populations in these regions have been adversely affected by lack of government
classification...Mandatory classification for adult publications also makes it
prohibitively expensive to publish niche or self published publications.[23]
Display of Restricted publications
4.24
The states and territories are responsible for enforcement legislation
which sets out how publications can be sold, hired, exhibited, advertised and
demonstrated. For this reason, the requirements for the display of Restricted
publications vary between the states and territories.
Requirements for display of
Restricted publications
4.25
The submission from the Attorney-General's Department outlined the
'similar, but slightly different requirements' for the display of Restricted
publications:
...in the case of Restricted publications, Queensland does
not permit their sale at all. In Victoria, South Australia, Northern Territory
and Western Australia the packaging must be sealed and use plain opaque
material. New South Wales and the Australian Capital Territory also require
sealed packaging though it may be transparent. Tasmania allows packaging to be
transparent though no more than the top six centimetres of the publication can
be displayed or exhibited in a public place. In all States and Territories
except Queensland, the publication must display the determined classification
markings.[24]
4.26
An 'Information Sheet for Magazine Retailers' on the Australian
Government's Classification website also provides details about the differences
between the states and territories for the display of publications:
Unrestricted
These magazines are not legally restricted, however, some are
not recommended for people under 15 years.
Category 1 Restricted
In QLD, it is illegal to sell Category 1 Restricted magazines
and in prescribed areas of the NT.
In all other States and Territories, Category 1 Restricted
magazines:
- are legally restricted and can only be sold to people 18 years and over,
and
- can only be displayed for sale in general outlets (eg a newsagency,
convenience store or service station) if they are in sealed wrapping. In SA,
VIC, NT and WA the wrapping must be opaque.
In WA, a retailer needs to be registered with the WA
Censorship Office before they can sell Category 1 Restricted magazines.
Category 2 Restricted
In QLD, it is illegal to sell Category 2 Restricted magazines
and in prescribed areas of the NT.
In ACT, NSW, NT, SA and Victoria, Category 2 Restricted
magazines can only be displayed for sale or sold in a restricted publications
area, for example an adult shop.
In Tasmania and WA, Category 2 Restricted magazines can be
sold in premises that are not restricted publications areas, provided certain
conditions are met. In WA, a retailer needs to be registered with the WA
Censorship Office before they can sell Category 2 Restricted magazines.
Category 2 Restricted magazines are legally restricted and
can only be sold to people 18 years and over.[25]
Desirability of national standards
for display of Restricted publications
4.27
The committee notes that there appeared to be a general consensus among submissions
for a national standard for the display of publications. Civil Liberties Australia
(CLA) stated that achieving national standards is a 'positive goal' as '[there]
is nothing inherently different about Australians from different states'.[26]
The Eros Association noted the inconsistency across the states and indicated
that a national uniformity to the display and sale of Restricted publications
is 'generally supported by [the adult retail] industry'.[27]
Salt Shakers submitted that '[n]ational standards provide uniformity and
reliability in the display of publications...[T]his is something we would
encourage'.[28]
4.28
While conceding that there are arguments for and against national
standards, Mr Johann Trevaskis noted that it is 'very likely' that costs
savings could be made through the introduction of national standards for the
display of Restricted publications.[29]
4.29
In contrast to much of the evidence received by the committee on this
issue, Ms Irene Graham expressed the following view:
...the manner of shelf display in sale/hire premises should
not be a 'national standard', but [should] remain the role/responsibility of
each State and Territory Government in the context of their classification enforcement
legislation.[30]
Appropriate national standard for
display of Restricted publications
4.30
While there was strong support for national standards for the display of
Restricted publications, submissions differed in their views about what the
national standard should be.
4.31
A particular concern was raised about the availability of Category 1
Restricted publications in retail outlets where those publications can be seen
by children. Many submissions noted that, in several jurisdictions, Category 2
Restricted publications are only available in restricted areas, where children
cannot access them; these submissions called for similar requirements to be
placed on Category 1 Restricted publications. For example, FamilyVoice
Australia argued that because Category 1 Restricted material is 'designed for
the sole purpose of sexual arousal [the sale] of such material in general
retail outlets such as newsagents and petrol stations is inappropriate'.[31]
FamilyVoice Australia recommended that the sale of Category 1 Restricted
material should be 'rigorously restricted to adults by limiting display and
sale to premises restricted to adults, as is the case with Category 2 material
in most jurisdictions'.[32]
4.32
ACL asserted that Restricted publications are 'pornographic in nature'
and 'are published for an adult market'. Accordingly:
...there is no need to display, or promote for sale,
publications with pornographic content in general retail outlets where children
will inevitably be present, such as in milk bars, convenience stores and petrol
stations.[33]
4.33
Collective Shout also noted that, in its view, Category 1 Restricted
publications are offensive to women:
It is offensive for women – often accompanied by children – to
have to confront graphic pornographic titles every time they have to buy milk and
petrol. The material is often [at] children's eye level, frequently next to lollies.[34]
4.34
Collective Shout called for a national standard requiring that Category
1 and 2 Restricted publications should only be available from a 'secure,
physically separated area to ensure no children can enter the area'.[35]
4.35
The Australian Council on Children and the Media (ACCM) also noted the
problem of displaying Restricted magazines in open areas where children may be
able to see the publications. ACCM called for a 'national review of the
conditions for the display of [Restricted Category 1] magazines and a
development of effective local systems of content checks and enforcement'.[36]
ACCM also suggested that 'parents need to be better supported with information
about complaints mechanisms, when children are confronted by such material'.[37]
4.36
Submissions referred to the principles set out at the beginning of the
National Classification Code as supporting more controlled access to Category 1
Restricted publications. For example, ACL contended:
Restricted publications and films are produced for an adult
audience and considered inappropriate for children. In accordance with an
important principle articulated in the National Classification Code, that 'minors
should be protected from material likely to harm or disturb them', the display
of such items should be restricted to areas where children are unlikely to be
exposed.[38]
4.37
Kids Free 2B Kids also noted the principle in the National
Classification Code that everyone should be protected from exposure to
unsolicited material that they find offensive, and stated that 'the word
'unsolicited', means 'Not looked for or requested; unsought'.[39]
Specifically:
Children and young teens are not looking for or requesting
pornographic magazines which are unsolicited and sold at their eye level and
within easy access, in the public arena.[40]
4.38
On the other hand, some submissions noted the principle in the National
Classification Code that 'adults should be able to read, hear and see what they
want'. For example, Mr Matthew Whitely argued that 'adults [should] have
the right to choose what they wish to read and view in the privacy of their
home and have the right to buy these products from retailers without absurd
restrictions'.[41]
4.39
Similarly, Civil Liberties Australia did not think there was necessarily
any need for such restrictions as retailers do not purposely set out to offend
their customers:
As to [R]estricted publications, their display is only of
concern if they have cover designs that are sexually explicit (nudity, by
itself, should not be considered sexually explicit), and are then displayed to
draw attention in a store that caters to a large and diverse audience. There is
little evidence to suggest that businesses go out of their way to offend their
customers.[42]
4.40
However, as Ms Julie Gale of Kids Free 2B Kids told the committee, this is
not necessarily the case. Ms Gale acknowledged a number of retailers who have
taken proactive steps to remove Category 1 Restricted publications from their
stores, but noted that some retailers continue to sell these items:
...BP, Shell Coles Express and Mobil...took swift and
responsible action by removing all category 1 pornographic magazines nationwide
from their company owned stores. This followed contact from Kids Free 2B Kids,
which included providing examples of the content of the category 1 magazines
they were selling. The same cannot be said for 7-Eleven, McDonald's Fuel Zone,
Safeway, Caltex, United Petroleum and others who...refused to take responsible
action, many stating they could not dictate what their co branded stores or
franchisees sold.[43]
4.41
The Eros Association also argued for less stringent restrictions
surrounding the display of Restricted publications, outlining the example of
Category 1 Restricted publications. The Eros Association emphasised that, under
the Guidelines for the Classification of Publications 2005, covers of
Category 1 Restricted publications must be suitable for public display, and covers
which are considered not suitable for public display will not be permitted in
this classification category unless sealed in plain opaque wrapping.[44]
Given this explicit requirement, the Eros Association questioned the additional
stipulation existing in a number of states and the Northern Territory that all
Category 1 Restricted publications must have opaque wrapping.[45]
4.42
Against this view that the requirements in the Guidelines for the
Classification of Publications 2005 provide for the display of Restricted Category
1 publications in a manner which is suitable for public display, the committee
received evidence demonstrating that retailers are currently displaying Restricted
publications in ways which do not accord with those requirements. The
submission of Kids Free 2B Kids contained a photograph with an example of a
magazine display in a milk bar where the comic 'Scooby-Doo' and Who
magazine were displayed alongside Category 1 Restricted magazines.
According to Kids Free 2B Kids:
Category 1 [Restricted] magazines are also frequently
displayed next to the daily newspapers, young girl's magazines such as Dolly
and Girlfriend, and magazines such as The Woman's Weekly, New
Idea and Who. This creates normalisation and desensitisation about
pornography for children and young teens.[46]
4.43
The Kids Free 2B Kids submission contained further persuasive evidence
for national standards for the display of Restricted publications in prescribed
areas which cannot be accessed by children. In discussing the outcomes of
audits by the Classification Board, Kids Free 2B Kids noted that 'distributors
are flouting the law by sealing illegal magazines with official Category 1
labels and selling them to retailers'.[47]
These magazines would then be available for display next to Unrestricted and
non-submittable publications, albeit in sealed, and in some cases opaque,
wrapping.
4.44
In this context and due to the graphic nature of the photos and
extracted text in the section of the submission from Kids Free 2B Kids dealing
specifically with publications, the committee made a decision not to publish
that part of the submission on the Parliament of Australia's website. Even
though that aspect of the submission was not made available on the website, the
committee accepted it as a public document (since its content was taken from
magazines freely available from certain retail outlets). Copies of the relevant
part of the submission are available in hard copy on request from the
secretariat.
4.45
In terms of progress being made towards national standards for the
display of Restricted publications, the Attorney-General's Department noted
that in 2010 the Commonwealth explored issues around the harmonisation of
jurisdictional requirements for the display of restricted material through the Standing
Committee of Attorneys-General Compliance and Enforcement Working Party.[48]
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