CHAPTER 7
Artworks, film festivals and 'advocating terrorism'
7.1
This chapter deals with a range of issues raised in the course of the
inquiry with respect to the National Classification Scheme, including:
-
application of the National Classification Scheme to artworks,
and particularly the role of artistic merit in classification decisions (term
of reference (e));
-
film festival classification exemptions (term of reference (o));
and
-
section 9A of the Classification Act 1995, relating to the
advocacy of terrorism (term of reference (o)).
Classification of artworks
7.2
Term of reference (e) relates to the application of the National Classification
Scheme to works of art and the role of artistic merit in classification
decisions. The committee received a substantial amount of evidence on this issue.
7.3
The Arts Law Centre of Australia's (Arts Law Centre) submission noted
that the requirement to classify a work prior to public exhibition under the federal
Classification Act 1995 does not traditionally extend to works of art
that are exhibited in gallery spaces.[1]
The Classification Act 1995 may apply, however, by virtue of the nature
of the media included in the artwork.
7.4
This section of the report considers the circumstances in which the National
Classification Scheme does apply to works of art, and outlines issues raised
during the inquiry in relation to the application of the National
Classification Scheme to works of art. The discussion centres around two
aspects of 'artistic merit', namely:
-
the role of artistic merit in classifying works of art; and
-
the role of a defence of artistic merit with respect to child
pornography, child exploitation and the production of child abuse material offences
under Commonwealth, state and territory legislation.
Application of the National
Classification Scheme to artworks
7.5
In its submission, the Arts Law Centre noted that the Classification
Act 1995 may apply to artwork where it contains classifiable material such
as film or video:
This would include multimedia works such as installation art
which frequently incorporates a video element, and are exhibited in gallery
spaces. Such pieces have been increasing in popularity with the rise of digital
technology as contemporary art...[2]
7.6
While noting the exemptions for classification of films listed in
section 5B of the Classification Act 1995, the Arts Law Centre argued:
It is unlikely that films such as those used in multimedia
works of art are exempt from the classification requirement...Some multimedia art
films may be exempt as a musical presentation or record of a hobby or live
performance, however these would be required to wholly be a documentary record
of that hobby or live performance. A film used in a work of art that exists as
a piece of art, not a documentary record, would not be automatically exempt
from the classification requirement. More importantly, for many artists their
artistic activities are a professional activity, not a hobby activity.[3]
7.7
The Arts Law Centre noted that the fee for classification of a film for
public exhibition, currently $990 for a 0-60 minute film, may be beyond the
means of many artists using films in their works of art.[4]
7.8
The Arts Law Centre set out the circumstances when the Classification
Act 1995 would apply to photography or visual artworks:
Under the Guidelines for the Classification of
Publications bona fide artworks are not usually required to be submitted [for]
classification as they are not generally considered to be 'submittable
publications'.
...
'Publication' is defined in the Act to include any 'pictorial
matter', not including a film, computer game or advertisement for a film or
computer game. As such, visual artworks such as photographs are publications
under the Act, and if they contain certain depictions or descriptions, may be
considered submittable for classification.[5]
7.9
The submission from the Attorney-General's Department (Department)
highlighted that the Director of the Classification Board may also play a role
in judging material to be submittable in the context of calling-in publications
for classification as authorised under state and territory enforcement
legislation.[6]
The Department gave the example of the issuing of a call-in notice for the July
2008 edition of the magazine Art Monthly, which contained reproductions
of Bill Henson photographs, as demonstrating that arts publications and
reproductions of artworks may be submittable publications requiring
classification under the National Classification Scheme.[7]
7.10
The fee for the classification of a 0-76 page publication is $520.[8]
7.11
While there are limited circumstances in which the Classification Act
1995 may apply to artworks, a number of submissions noted that an artist
whose work contains contentious material may seek to have their work classified
as a 'preventative measure' to 'ensure against any controversy'.[9]
7.12
The National Association for the Visual Arts (NAVA) noted that decisions
about whether to have works classified is a dilemma for artists:
For artists who explore sensitive or controversial material
it presents a real and tangible dilemma. Do they pay the extensive costs of
having their work classified, even when it is not likely to need
classification, or do they defend their right to freedom of expression and risk
prosecution or censorship?[10]
Role of 'artistic merit' in
classification decisions
7.13
Section 11 of the Classification Act 1995 provides that, in
making a decision on the classification of a publication, film or a computer
game, one of the matters to be taken into account is the 'literary, artistic or
educational merit (if any) of the publication, film or computer game'.[11]
The Arts Law Centre noted that 'artistic merit' is not defined in either the Classification
Act 1995, the Guidelines for the Classification of Publications
2005 or the Guidelines for the Classification of Films and Computer
Games:
It may be impliedly taken into context, which is emphasised
in the Guidelines as being crucial in determining whether a 'classifiable
element' is justified by the storyline or themes, however this is unclear...[12]
7.14
The Arts Law Centre's submission provided a detailed analysis of certain
Classification Review Board decisions it has undertaken by it since 'the amount
of weight artistic merit has in classification decisions is only known in [Review
Board] decisions'.[13]
The Arts Law Centre provided the following conclusive view based on its
analysis:
...'[A]rtistic merit' was crucial in the Review Board's
decision to ultimately grant a rating to works...that but for artistic merit,
could have been refused classification...
However, artistic merit alone is insufficient to ensure
classification, with some works (again, usually film) [having] been refused
classification and therefore banned in Australia despite acknowledgments of
artistic merit...[14]
7.15
Submissions and witnesses commented that the term 'artistic merit'
involves a subjective element. For example, Mr Bruce Arnold and Dr Sarah
Ailwood submitted:
Classification decisions should be based on content (eg the
intensity and gratuitousness of violence) rather than on measures of artistic
merit such as the deftness of the screenwriter or the brilliance of the
cinematographer. It should not be the function of the [Classification Board] to
articulate and implicitly enforce a particular aesthetic.[15]
7.16
Mr Paul Hotchkin from Media Standards Australia criticised the term as too
broad and vague, arguing that '[a]nyone can justify artistic merit'.[16]
Salt Shakers expressed the view that artistic merit should play a limited or
non-existent role in relation to the classification of artworks.[17]
7.17
The Office of Public Prosecutions Victoria (OPP) submitted that there
needs to be a 'balancing' of the matters set out in section 11 of the Classification
Act 1995:
...[A]rtistic merit should remain a factor to be taken into
account by the Classification Board pursuant to s11 of the Commonwealth Act
although it should not be elevated above the other factors that...are required
by that section to take into account.[18]
7.18
One proposal put forward to address the concern in relation to artistic
merit was for any assessment of the literary or artistic merit of a work to
take into account the views of highly regarded arts professionals who are
specialists in the medium being assessed.[19]
Associate Professor Robert Nelson suggested that artistic intentions should be
the key criterion in all matters of classification:
[I]n the law, intention is always a critical factor; and
however difficult it may be to establish artistic intention, it is much safer
and more reliable than merit. In all other circumstances, the law makes
decisions about the intentions of a suspected felon; and no one is found guilty
unless he or she [possesses] an evil mind (mens rea) over the evil deed.
I cannot see how art and its legal or classificatory evaluation operate
differently and see no basis for appealing to artistic merit as some kind of
moral disclaimer.[20]
Works featuring children
7.19
The issue of works featuring children and, in particular, naked children
has been the subject of considerable attention, and concern, in recent years.
Whether such works constitute 'art' or 'child pornography' is the subject of
heated debate between various groups in the community.
Bill Henson case
7.20
One specific issue considered in the course of this inquiry was the
differing treatment of the defence of 'artistic merit' in relation to child abuse
or child pornography offences contained in Commonwealth and state and territory
criminal law.
7.21
The most well known case in relation to this issue is the work of Mr Bill Henson,
and the debate which surrounded an exhibition of his work in a Sydney gallery
in 2008. In May 2008, an exhibition of Mr Henson's photographs was due to
open at the Roslyn Oxley9 Gallery in Sydney, featuring images of naked
children, aged 12 and 13.[21]
The National Association of Visual Artists' submission summarised what ultimately
occurred:
The exhibition...was raided by police on the day it was to
open, the works were confiscated by police and the artist and gallery were
threatened with legal proceedings. On request, the police received advice from
the Public Prosecutor...[22]
7.22
At the time, the Crimes Act 1900 (NSW) (NSW Crimes Act) defined 'child
pornography' as material that depicts or describes in a manner that would cause
offence to a reasonable person, a person under (or apparently under) the age of
16 years:
(a)
engaged in sexual activity; or
(b)
in a sexual context; or
(c)
as the victim of torture, cruelty or physical abuse.[23]
7.23
The NSW Crimes Act, at the time, set out three relevant offences
in relation to child pornography:
(a)
producing or disseminating child pornography, with a maximum sentence of
10 years imprisonment;[24]
(b)
possessing child pornography, with a maximum sentence of five years
imprisonment;[25]
and
(c)
using or causing or procuring a child, or consenting or allowing a child
under the care of the off ender, to be used for pornographic purposes, with a
maximum sentence of 14 years imprisonment where the child is under the age of
14 years and 10 years imprisonment where the child is of or above that age.[26]
7.24
The NSW Crimes Act also provided for the following specific defences to
these child pornography offences, including:
...that, having regard to the circumstances in which the
material concerned was produced, used or intended to be used, the defendant was
acting for a genuine child protection, scientific, medical, legal, artistic or
other public benefit purpose and the defendant’s conduct was reasonable
for that purpose...[27]
7.25
The NSW Police sought advice from the NSW Director of Public Prosecutions
(DPP) in relation to whether Mr Henson should be charged with child pornography
offences. The DPP determined that the Henson photographs in question would not
cause offence to the reasonable person. The DPP's advice noted that the models
in the pictures were naked, but that in and of itself was not sufficient to
cause offence to reasonable persons. Further, the DPP concluded that the models
in the pictures were not depicted in a 'sexual context'. Again, the DPP's
advice noted that the models were nude, but stated that '[m]ere nudity is not
sufficient to create a "sexual context"'. On this basis, the DPP concluded
that the offence was not made out and that the case should not be prosecuted.[28]
7.26
Despite being of the view that the offences were not made out in the
Henson case, the DPP also considered whether the defence of 'artistic merit' would
be successful. The DPP concluded that such a defence 'could well be established
on the balance of probabilities'.[29]
7.27
On the day of the exhibition opening, photographs from the exhibition
were posted on the Roslyn Oxley9 Gallery's website, but removed a few hours later.
The removal of the images occurred before any complaint was made to the
Australian Media and Communications Authority (ACMA) for investigation.[30]
The ACMA received a complaint, however, in relation to one of the Henson images
posted on another website.[31]
The ACMA referred the complaint to the Classification Board and the image was later
classified PG.
Retaining 'artistic merit' as a
defence
7.28
Following the Henson case, the NSW Crimes Act was amended in 2010
to remove 'genuine artistic purpose' as a defence to the offences of
production, dissemination and possession of child abuse material.[32]
The amendment was introduced because:
...the inclusion of the defence of artistic merit amongst the
child pornography offences may, somewhat unhelpfully, lead to the impression
that material that would otherwise constitute child pornography is acceptable
if the material was produced, used, or intended to be used whilst acting for a
genuine artistic purpose...[M]aterial that is otherwise offensive because of
the way in which it depicts children should not be protected because its
creator claims an overriding artistic purpose for it.[33]
7.29
As part of the amendments, references to 'child pornography' were also
changed to 'child abuse material'.[34]
In determining whether material is 'child abuse material', the test is whether
the material depicts or describes a child, or the private parts of a child, in a
way that a reasonable person would regard as being offensive.[35]
Subsection 91FB(2) of the NSW Crimes Act provides that the 'literary, artistic
or educational merit (if any) of the material' must be taken into account in
determining whether a reasonable person would regard the particular material as
being offensive.
7.30
The NSW Crimes Act still provides that classification of material
under the Classification Act 1995 (other than material that has been Refused
Classification) is a defence to an offence of production, dissemination and
possession of child abuse material.[36]
This defence is not available, however, for offences relating to the use of a
child for the production of child abuse material.[37]
7.31
The Criminal Code Act 1995 (Cth) provides for offences in
relation to the use of a carriage service for child pornography material or
child abuse material.[38]
The Criminal Code Act 1995 (Cth) does not provide for a defence of
'artistic merit' in relation to these offences.[39]
Considerations of artistic merit, however, form part of the decision-making
process in determining whether a reasonable person would regard the relevant
material as offensive. Section 473.4 of the Criminal Code Act 1995 (Cth)
provides:
The matters to be taken into account in deciding for the
purposes of this Part whether reasonable persons would regard particular material,
or a particular use of a carriage service, as being, in all the circumstances,
offensive, include:
...
(b) the literary, artistic or educational merit (if any) of
the material...
7.32
The amendments to the NSW Crimes Act in 2010 are intended to reflect the
Commonwealth provisions.[40]
7.33
Despite the changes to the NSW legislation, a number of state jurisdictions
still retain the defence of 'artistic merit' in relation to the production and
possession of child pornography. For example, subsection 70(2) of the Crimes
Act 1958 (Vic) provides that it is a defence to a prosecution for an
offence of possession of child pornography if the relevant film, photography,
publication or computer game possesses artistic merit or is for a genuine,
medical, legal, scientific or educational purpose. However, as the Office of
Public Prosecutions Victoria (OPP) advised in its submission this defence
cannot be relied on in a case where the child depicted is actually under the
age of 18 years.[41]
7.34
The National Association of Visual Artists noted that the NSW Attorney-General
tried unsuccessfully to convince other state Attorneys-General to excise the
artistic defence from their respective legislation, and to tighten other laws
about creating images of children and making them publicly available.[42]
7.35
As the National Association of Visual Artists explained in its
submission, the artistic merit defence is:
...based on an understanding that art, science and education
can be interrogative and serve special purposes that are intended for the
public good, even though the material may at times go against what, in another
context would be regarded as problematic.[43]
7.36
However, the committee received evidence which supported the sentiment
behind the NSW amendments, and argued that artistic merit should not be used to
justify the lower classification of material which would otherwise be Refused
Classification:
Commonwealth classification law could be further clarified to
ensure that any offensive material of this nature that would normally be
classified Refused Classification does not receive a lower classification
rating on the basis of 'artistic merit'. The Classification Act, Code and
Guidelines should state that any depiction or description of a minor under the
age of 18, including the promotion or instruction in the creation of child
abuse material, that is considered offensive and would receive a Refused
Classification rating, cannot receive a different rating because of artistic
merit. Artistic merit should never excuse content in breach of the Guidelines.[44]
7.37
Ms Melinda Tankard Reist of Collective Shout put her argument more
bluntly:
We need to get rid of this idea of artistic merit, because
why is a pornographic image of a young girl okay just because you slap the word
'art' on it?[45]
7.38
The Family Council of Victoria asserted that 'artistic merit should not
be allowed to be a scapegoat for pornography'.[46]
7.39
In their joint submission, the Hon. Nick Goiran MLC and Mr Peter Abetz
MLA from the Western Australian Legislative Council and the Western Australian
Legislative Assembly (respectively), argued that the NSW legislation at the
time of the Henson case indicated that the law did not provide adequate powers
for the police to prosecute Mr Henson:
In this case it was clear that the community, as demonstrated
by the outrage expressed, did not find it acceptable to use children in art in
a way that could be used as pornography...[47]
Protocols for working with children
in art
7.40
A number of submissions noted the introduction of the Australia
Council's Protocols for working with children in art (Protocols).[48]
The Protocols set out the requirements for recipients of Australia Council
funding, specifically in relation to obtaining consent where an artist is
working with a child under the age of 15. The Protocols note that state laws
may prohibit working with a child under the age of 15 who is fully or partly
naked.[49]
7.41
In its submission, Bravehearts noted the restrictions put in place by
state employment laws:
Each State and Territory in Australia places varying
prohibitions or restrictions on the engagement of children in employment while
the majority, NSW, Vic, Qld and WA specifically prohibit the use of naked or
semi naked children in art.[50]
7.42
Bravehearts argued that state employment laws should prevail over
classification decisions:
Taking images of naked or semi naked children, manufactured
and created for the purposes of 'art' is illegal in NSW–end of argument. As
such, there is no place for any consideration of 'artistic merit'. There should
be no further opportunity in law, either by the allowance of the introduction
of 'expert evidence' or by a rating obtained from a 'Classification Board' or
by any other means or individual–or group of individuals–that would weaken that
position.[51]
7.43
Associate Professor Robert Nelson's submission noted that, until the
introduction of the Protocols, many artists had not considered the impact of
employment laws:
...[V]isual artists (like photographers and painters who
exhibit in galleries) did not believe that state child employment laws had
application to art, because they had never thought of themselves employing the
people in their pictures.[52]
7.44
The Protocols also state:
If you have any concerns about the content of any images or
artworks being exhibited, we strongly suggest you obtain a rating
classification from the Classification Board and follow any requirements the Classification
Board may impose.[53]
7.45
In this context, the committee notes the evidence it received from the
Arts Law Centre in relation to Mr Henson applying for the
classification of his works prior to exhibition.[54]
7.46
The Protocols also provide that an artist working with anyone under the
age of 15 is required to obtain the consent of the child's parent or
guardian prior to commencing their artwork.[55]
7.47
Professor Elizabeth Handsley set out for the committee the concerns she
has in relation to the giving of parental consent in a situation such as the
Henson case:
My main concern with [the Henson] photos has been the
question of how consent was gained for those children to appear in material
that would be widely published, and published for the rest of their lives.
There are many matters where we do not allow children under our legal system to
give consent to certain kinds of activities and experiences, and there are some
matters where we do not allow parents to give consent on behalf of children.
One example that the committee might be aware of is the one that is based on
Marion's case...where it was decided that parents cannot give consent on behalf
of their intellectually disabled children to an irreversible sterilisation operation.
I would liken the experience of having your naked body plastered all over
websites for the rest of your life to be something akin to an irreversible
sterilisation operation, perhaps not as bodily invasive, but certainly
something that could affect your life quite profoundly.
I think the main point is that it is irreversible. I would
suggest that, on that sort of analysis, there would be a basis for saying that
parents cannot give consent on behalf of their children to having naked
pictures taken, irrespective of the artistic merit. I am not terribly happy
about the idea of leaving it the way that it appears to be at the moment, where
as long as the artist or the photographer can get some sort of consent from
someone, then what that person does with the photographs afterwards is
completely out of their hands.[56]
No featuring of children in
artworks
7.48
Some submissions argued that a consequence of the Henson case has been
that children are no longer being featured in artworks. For example, NAVA
noted:
...[C]ertainly artists and the public media are much more
reluctant to get involved in any form of representation of children, whether
clothed or unclothed. This fear being engendered around the representation of
children is rendering them invisible.[57]
7.49
NAVA's submission also outlined some examples where images of children have
attracted media attention. Sydney artist Del Kathryn Barton's photograph 'Eye
Land of Kell' depicted her son wearing only jeans standing in front of a floral
display with decorative elements superimposed on his face and torso. The
photograph was part of a fundraising exhibition for the Sydney Children's
Hospital. NAVA noted that, while the photograph was outside the scope of the
Protocols, the Sydney Children's Hospital decided to withdraw from the event:
...[T]he hospital adopted the most cautious possible position
and decided not to continue its partnership as charity recipient from the art
exhibition stating that some members of the community might find the image
inappropriate as part of a fundraiser for a children's hospital charity.[58]
7.50
Ms Susan Reid noted the historical use of children in art, such as in
religious images, and referred to community fears about children in the media
prompting 'knee-jerk calls for broader censorship laws and tighter
restrictions on content providers, broadcasters and publishers'. Ms Reid also
referred to certain comments by media academic Professor Catharine Lumby, who has
warned that 'the trouble begins when we start looking at every image through
the lens of a paedophile'.[59]
7.51
Bravehearts, however, drew a distinction between the use of naked
children in art and other situations. Bravehearts argued that it is possible to
remove the artistic merit defence without infringing on the rights of
journalists and artists to depict valid situations involving children:
Images of naked or semi naked children that are designed,
produced, manufactured, posed or created images should remain illegal. Images
of children that may well hold artistic merit but that are real life depictions
of un-orchestrated true events, fall into another category. The determination
of the motivation for taking the photo and the context of the image is
critical.[60]
Exempting artwork from
classification
7.52
The committee received submissions that argued for exemptions for
artworks from classification. NAVA argued that classification should not be
mandatory for artworks, and that galleries and art spaces 'seem an obvious zone
for exemption from classification, especially as it is the industry's standard
to use signage and explanatory panels to alert the public to potentially
challenging content'.[61]
7.53
Similarly, the Arts Law Centre recommended that there should be an
explicit exemption to classification for works of art exhibited in a gallery
space, and that the requirements for 'submittable publication' for
classification should apply only if the work of art is to be communicated or
distributed to the general public.[62]
7.54
NAVA also suggested that classification for artists be done either
without charge if they bring the works to the Classification Board themselves,
or with the cost being borne by the complainant if they are called-in as the
result of a complaint.[63]
7.55
Conversely, the committee received submissions which strongly argued
against the exemption of artworks from classification. The Catholic Women's
League of Australia recommended that the National Classification Scheme apply
to works of art.[64]
Similarly, Salt Shakers recommended that all artworks should be classified.[65]
7.56
The Hon. Nick Goiran MLC and Mr Peter Abetz MLA recommended that the
public display of artwork should be included in the National Classification
Scheme, with all works to be displayed in galleries or exhibitions to be
classified in order to inform viewers of the likely content, as well as any
potentially offensive material. Further, the display of artwork that is
suitable for adults only should be limited to restricted areas.[66]
Exemptions for film classification
7.57
Under the National Classification Scheme, films are subject to
compulsory classification before they can be exhibited, sold or hired out. Thirteen
types of film, however, are exempt from the requirement for classification:
business, accounting, professional, scientific, educational, current affairs,
hobbyist, sporting, family, live performance, musical presentation, religious,
and community and cultural films.[67]
7.58
In addition, films screened at film festivals may also be exempted from
classification under provisions in state and territory enforcement legislation.[68]
7.59
The National Film and Sound Archive (NFSA) noted that all state and
territory enforcement legislation allows for 'approved organisations' to seek
exemptions allowing them to screen unclassified films:
[Exemptions] can be granted by the Classification Board or,
in Queensland and South Australia, by the relevant minister. An approved
organisation is one authorised by the Classification Board to apply for
exemptions, having regard to matters such as the extent to which it engages in
medical, scientific, education, cultural or artistic activities, and its
reputation for screening films.
There are different types of exemptions, some of which are
not available in all jurisdictions. The most common type—which is available in
all jurisdictions—is a festival exemption. This allows approved organisations
to screen particular unclassified titles at a specific event or festival. The
exemption works as a temporary classification, although conditions may be set
for screening particular titles (e.g. a requirement to show background material
with a film to contextualise it).[69]
7.60
The NFSA informed the committee that a significant amount of material
held within its collection is unclassified, meaning that the NFSA often relies
on film festival exemptions to screen archived material. Ms Ann Landrigan from the
NFSA described the nature of this material:
As you can appreciate, with material in our collection that
dates back to the earliest days of moving image production, we have a
significant number of titles that have never been classified. They might be Indigenous
titles, ethnographic material, home movies and filmed oral histories, for
example; and, as you are aware, we must apply for festival exemptions for each
event at which we plan to screen these films.[70]
7.61
These exemptions, however, present administrative difficulties for the
NFSA, given the frequency with which it has to apply for an exemption.
Additionally, because the exemption is granted under state and territory
enforcement legislation, the NSFA often has to apply to multiple jurisdictions
to facilitate national tours.[71]
7.62
Due to the difficulties arising from the NFSA's large unclassified
collection, it proposed the inclusion of a blanket exemption for cultural
institutions which would allow them to screen unclassified material.[72]
The NFSA expected that, under such a provision, the relevant institution would
self-classify material in a manner similar to that adopted by television
broadcasters, and could be subject to oversight by the Classification Board.[73]
'Advocating terrorism'
7.63
Section 9A of the Classification Act 1995 provides for the
refusal of classification for publications, films or computer games that
advocate terrorist acts.[74]
7.64
Material is considered to advocate the doing of a terrorist act if:
(a) it directly or indirectly counsels or urges the doing of a terrorist
act; or
(b)
it directly or indirectly provides instruction on the doing of a
terrorist act; or
(c)
it directly praises the doing of a terrorist act in circumstances where
there is a substantial risk that such praise might have the effect of leading a
person (regardless of his or her age or any mental impairment (within the
meaning of section 7.3 of the Criminal Code) that the person might
suffer) to engage in a terrorist act.[75]
7.65
However, a publication, film or computer game is not considered to advocate
the doing of a terrorist act if it depicts or describes a terrorist act, but
the depiction or description could reasonably be considered to be done merely
as part of public discussion or debate, or as entertainment or satire.[76]
7.66
The committee received three submissions relating to section 9A. Each
submitter recommended the repeal of section 9A from the Classification Act
1995.
7.67
Professor George Williams from the Gilbert and Tobin Centre of Public
Law argued against section 9A on a number of grounds, including that it removes
discretion from the independent Classification Board and Classification Review
Board, pre-empting the decision at a political level.[77]
In particular:
[Section 9A] is inconsistent with the principle that the
Boards' classification decisions should be discretionary, as part of the guided
balancing of complex, unquantifiable values. Section 9A eliminates the [Classification]
Boards' discretion as to what classification to give in certain circumstances.
If they find that material advocates a terrorist act, they must classify it
'RC'.[78]
7.68
Similarly, Professor Williams noted that the provision was introduced
without the support of all states and territories, undermining the cooperative,
uniform nature of the National Classification Scheme.[79]
7.69
Professor Williams also argued that the application of section 9A is
overly broad, by virtue of the test established in paragraph 9A(2)(c):
Many publications, including innocuous and valuable
publications that concern past liberation struggles like that of Nelson Mandela
against apartheid in South Africa, could be considered to laud a terrorist act.
If that objective purpose could be made out, what s 9A(2)(c) would then require
is simply proof that the publication could possibly have a malign effect on one
member of a very large class of people. And that class includes people (the
mentally ill and the young) who are likely to be far more susceptible to such
effects than the ordinary adult. This is the nub of the problem with the
amendments. It will be difficult for the courts to construe s 9A(2)(c) so that
it does not do too much.[80]
7.70
Dr Katharine Gelber expressed a similar view, noting that the test
established in paragraph 9A(2)(c) is a significant departure from the
'reasonable person' test that characterises most other aspects of the National Classification
Scheme.[81]
7.71
Dr Gelber submitted that other provisions could be used to refuse
classification to material that promotes, incites or instructs in matters of
crime or violence, meaning that section 9A adds nothing of benefit to the
classification of material that could realistically lead people to commit
terrorist acts.[82]
7.72
Finally, both Professor Williams and Dr Gelber submitted that section 9A
inhibits academic research. Professor Williams noted that two publications that
had been bought by the University of Melbourne for a course on jihad were
removed in response to the section 9A provisions.[83]
Dr Gelber recommended that, if section 9A is not repealed in its entirety,
it should at least be amended so as to allow an exception to permit scholarly
research.[84]
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