CHAPTER 2
History of censorship and classification in Australia
2.1
This chapter provides a brief overview of the historical development of
censorship and classification in Australia.
Historical background
2.2
Censorship and classification has a long history in Australia, beginning
with publications and extending to new media, including films for public
exhibition in the early 20th century, and more recent additions such
as videos and computer games.
2.3
The Commonwealth has no direct power of censorship, but has used other
constitutional heads of power to this end, including:
-
the trade and commerce power (section 51(i) of the Constitution),
to restrict and prohibit the importation of books, films and videotapes;
-
the telecommunications power (section 51(v) of the Constitution),
to regulate radio, television and the internet; and
-
the territories power (section 122 of the Constitution), in
setting up national classification and censorship schemes.
Era of censorship
2.4
From 1901, the trade and commerce power enabled the Commonwealth to
prohibit the import of 'blasphemous, indecent or obscene works or articles',[1]
a function that was carried out by the Department of Trade and Customs.
Australian-produced publications continued to be regulated by state legislation,
such as various Police Offences Acts or Obscene and Indecent Publications Acts.[2]
2.5
The censorship of films in Australia began in 1917, with customs regulations
prohibiting the import of films that were not first approved by the new Commonwealth
Board of Censors.[3]
The Board of Censors was authorised to ban any film that:
-
was blasphemous, indecent or obscene;
-
was likely to be injurious to morality, or to encourage or incite
to crime;
-
was likely to be offensive to any ally of Great Britain; or
-
depicted any matter the exhibition of which, in the opinion of the
Board, was undesirable in the public interest.[4]
2.6
The Board of Censors was replaced in 1919 by a similar system involving
a Chief Censor and Deputy Censor,[5]
and in 1929 by the Commonwealth Film Censorship Board.[6]
2.7
This strict censorship regime, with the Commonwealth regulating imported
books and films, and the states regulating Australian material, remained in
place until the late 1960s.
2.8
During the 1960s, however, some steps were being taken to establish a
uniform censorship regime. In 1961, after the unsuccessful prosecution of
Penguin Books in England for publishing a paperback edition of Lady
Chatterley's Lover, it was agreed that the states would not take legal
proceedings against publications approved by Customs authorities, without prior
consultation.[7]
In 1965, negotiations commenced between the Commonwealth and the states on a
uniform censorship regime, leading to an intergovernmental agreement signed on
15 November 1967.
2.9
The intergovernmental agreement established the National Literature
Board of Review, which had the task of classifying books[8]
as unsuitable for distribution in Australia if they:
-
were blasphemous, indecent or obscene;
-
unduly emphasised matters of sex, horror, violence or crime; or
-
were likely to encourage depravity.[9]
2.10
The expectation was that books permitted by the National Literature
Board of Review would be permitted by the state ministers, but enforcement
decisions were ultimately matters for each state government.[10]
From censorship to classification:
1968–84
2.11
From the 1960s, the censorship regime was significantly liberalised,
moving from a model of censorship to a model of classification which enabled adults
to make well-informed choices about what they saw and read.
2.12
One of the first major developments occurred in March 1968. In the landmark
case of Crowe v Graham, the High Court of Australia replaced the
common-law test of obscenity—the 'tendency to deprave and corrupt', dating from
1868—with a community-standards test: whether material offends against
contemporary community standards, or the 'modesty of the average man'.[11]
This was a significant shift in the underlying principle behind censorship.
2.13
A second major development occurred in June 1970. The then Minister for
Customs and Excise, the Hon. Don Chipp MP, commenced a new debate on censorship
in a major parliamentary statement. Mr Chipp called for as little censorship as
possible (within the limits set by community standards), greater public scrutiny,
and community responsibility (in particular parental responsibility).[12]
2.14
The same year, the Film Censorship Board began to publish reasons for
film-censorship decisions;[13]
and, in 1971, an R classification was introduced for films, as well as a Film
Board of Review, which provided an enhanced appeal mechanism for decisions of
the Film Censorship Board.[14]
2.15
The policy of the Whitlam Government, elected in November 1972, was as
follows:
-
adult persons should be free to read, view and hear what they
wish;
-
persons and those in their care should be protected from exposure
to unsolicited material offensive to them; and
-
the reasons for censorship decisions should be published.[15]
2.16
At a ministerial meeting in January 1974, the Commonwealth and all
states except Queensland agreed that publications should be classified by the
Commonwealth, although the states indicated that these decisions would be
advisory only. Publications were to be classified in three categories, in
keeping with the 1968 decision in Crowe v Graham:
-
restricted, and not for sale to those under 18: material that was
sexually explicit, or depicted extreme violence, horror or cruelty;
-
for direct sale only, by mail order: 'hard core' pornography; and
-
prohibited: publications which advocated or incited to crime,
violence or the use of illegal drugs.[16]
2.17
A new round of general classification reform took place in 1983–4, prompted
by the wide availability of films on videotape. The existing system focused on
the importation of films for public 'exhibition' and did not include the
display and sale of videos, especially sexually explicit videos. There was also
no requirement for separate areas for displaying videos, no requirement for
under-the-counter sale and no effective limitations on the sale of videos to
minors.[17]
2.18
After an intergovernmental meeting in July 1983, the Commonwealth established
a model law to apply in the Australian Capital Territory (ACT), based on the
existing South Australian legislation. The Classification of Publications
Ordinance 1983 (ACT) commenced on 1 February 1984, along with associated changes
to customs legislation.
2.19
The main features of the 1983–4 changes were as follows:
-
a movement of the focus away from the customs barrier to the
point of sale, so that the only material to be stopped at the customs barrier
would now be child pornography, material which 'promotes, incites or encourages'
terrorism,[18]
or material gratuitously depicting extreme violence or cruelty, particularly in
circumstances involving a sexual element;
-
the continuation of compulsory classification of films for public
screening;
-
the establishment of a nationally uniform classification system,
with the Commonwealth running the classification of publications, subject to
some regional or state variations, and the Film Censorship Board classifying films
and videos;
-
the introduction of legislation by each state to establish
appropriate point-of-sale controls for each category of material;
-
the introduction of an X rating for sexually explicit videos, which
could not be publicly screened; and
-
the voluntary classification of all publications and other works,
except films for public screening, though a person selling material later found
to be Refused Classification would be liable to prosecution. This voluntary approach
was adopted because it was not considered necessary for every video or every
piece of literature to be classified, particularly material at the general-exhibition
end of the scale.[19]
2.20
From June 1984, the classification of videotapes and videodiscs for sale
was made compulsory. This change was made by an amendment to the 1983 ordinance
by the Classification of Publications (Amendment) Ordinance 1984 (ACT). The
purpose of the amendments was to provide better guidance to purchasers of
videos and, in particular, to parents wishing to distinguish between movies
rated G (general), PG (parental guidance) and M (mature).[20]
Towards the 1996 scheme
2.21
Although the reforms introduced in the period 1983-84 were meant to
herald greater coherence between the states and territories, there remained
significant differences between approaches to classification in each
jurisdiction.[21]
2.22
The difficulties in administering the classification laws prompted the
Attorney-General to refer the matter to the Australian Law Reform Commission
(ALRC) in May 1990. The ALRC reported in 1991, presenting model classification
laws for both federal and state jurisdictions. The ALRC outlined the main
problems with the existing scheme:
Despite the recognition, at Ministerial level, among federal,
State and Territory officers with responsibility for censorship matters and in
the film and print distribution industries, that uniformity of policy and
procedure is desirable, there is still a marked lack of uniformity in
classification and censorship laws. While every State and the Northern
Territory has legislation which, to some degree, imitates the Australian
Capital Territory model, there are still significant differences.
Determined markings and
consumer advice. The markings to be displayed on films and videos are not
uniform throughout all jurisdictions. Most jurisdictions have not amended their
legislation to require the display of consumer advice, despite an agreement
made between Ministers in 1989.
Reclassification.
Australian Capital Territory, Tasmanian and Victorian laws provide that films
and publications can be reclassified at the Board's own motion after two years.
This is not the case in other jurisdictions.
Standing to have decisions
reviewed. Standing differs among jurisdictions. In New South Wales, for
example, only the Minister or applicant for a classification can apply to have
a classification decision reviewed. In Queensland, 'the exhibitor or
distributor' can also apply. Under the Customs (Cinematograph Films)
Regulations and under Victorian law, 'persons aggrieved' may also apply.
Classification of publications.
The classification of publications under the Classification of Publications
Ordinance 1983 (ACT) is not adopted or effective throughout Australia.
Western Australia, Tasmania and Queensland operate their own schemes.
This situation is exacerbated when agreement is reached on
changes to the scheme, as some jurisdictions' legislation is updated more
quickly than others. What has resulted is a set of State, Territory and federal
legislation that is neither uniform nor comprehensive. Australia does not have
a single, uniform classification procedure for the entire country.[22]
2.23
In a speech made in 1997, the then Attorney-General, the Hon. Daryl
Williams AM QC MP, described the practical effects of the lack of uniformity
under the pre-1996 scheme:
In the case of films, each decision of the Classification
Board was, in fact, made under up to 12 separate pieces of legislation. The
problems...were compounded by the numerous differences between each set of
legislation including the criteria under which decisions were made, the matters
to be taken into account in making a decision and procedures for classification.
For publications, it was not unusual for a classification officer to be
required to make different decisions for different jurisdictions in light of
the criteria to be applied.[23]
2.24
The Attorney-General concluded that 'the so called "national scheme"...was
complex and lacked real uniformity. It was a mess'.[24]
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