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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