Irreversible

Dir Gaspar Noé / 2002 / France

This had its first screenings in Australia during March and April at the 2003 French Festival. It played Canberra, Sydney, Melbourne, Brisbane, Adelaide, and Perth. Apart from some minor problems with the South Australian Attorney General, it toured the country quite uneventfully.

***

SOUTH AUSTRALIAN LEGISLATIVE COUNCIL
Wednesday 2 April 2003
FILM CENSORSHIP

The Hon. DIANA LAIDLAW: I seek leave to make a statement before asking the Minister for Agriculture, Food and Fisheries, representing the Premier and Minister for the Arts, a question on the subject of film censorship.
  
Leave granted.

 The Hon. DIANA LAIDLAW: Tonight the Premier and Minister for the Arts will open the French Film Festival which, as of late yesterday, will now include the film Irreversible. This follows the last-minute reconsideration by the Attorney-General of his decision in January to refuse to give the film an exemption from classification. As far as I am aware, this is now the second occasion in less than 10 months on which the Labor Attorney-General, the Hon. Michael Atkinson, has flirted with censorship of films screened everywhere else in Australia and overseas but not Adelaide. There may be other occasions, as well, of which I am not aware.

 In a media release issued on 10 May 2002, the Attorney-General highlighted that, if the film Baise-Moi had been brought to his attention earlier following its R18+ classifica­tion the previous October, he would have `ensured it would never be screened in South Australia'. All honour­able members will respect that, throughout the western world and possibly beyond, film censorship is regarded as a very serious matter. The Premier and Minister for the Arts must be acutely embarrassed by his Attorney-General's enthusiasm for censorship in film at the very same time that he is committing millions of dollars of South Australian taxpayers' money seeking to establish Adelaide as a base for an international film festival.

 Incidentally, the Adelaide International Film Festival, which the Premier is promoting as the biggest in the southern hemisphere and possibly a rival to Cannes, is noteworthy in view of the fact that the film Irreversible was shown at the Cannes Film Festival last year without incident. I ask the following questions:

1.  Was the Premier and Minister for the Arts consulted prior to the Attorney-General's decision in January this year to refuse to give the film Irreversible an exemption from classification and, if not, why not?

2.  When did he first learn that the Attorney-General had refused the exemption?

3.  At any time since learning of the Attorney-General's decision in January did the Premier or anyone on his behalf seek to influence the Attorney-General to reconsider and reverse his January decision?

4.  Does the Premier consider that the current arrange­ments, both legislative and administrative, as exercised by the Attorney-General are satisfactory, or should they be amended to ensure this government no longer sends mixed messages around the world regarding film culture in this state?

The Hon. P. HOLLOWAY (Minister for Agriculture, Food and Fisheries): I am sure that this is a subject with which the honourable member can speak with some authority, because we well recall during the term of the last government when the Hon. Trevor Griffin on a number of occasions—

The Hon. A.J. Redford interjecting:

The Hon. P. HOLLOWAY: At least one occasion. What was it: Sweet Sweetback's Baad Asssss Song, I think it was called.

Members interjecting:

The Hon. P. HOLLOWAY: Well, it was one occasion.

The Hon. Diana Laidlaw: Don't mislead.

The Hon. P. HOLLOWAY: I would have thought that if anything was misleading it was the honourable member's question. After all, she was trying to suggest that what is happening under this government is something—

Members interjecting:

The PRESIDENT: Order!

The Hon. P. HOLLOWAY: That particular film was prevented—

Members interjecting:

The Hon. P. HOLLOWAY: I will refer to it in a moment but first I will make some comments. I have that luxury and I am going to exercise my right. As I said, I am sure the honourable member would speak with some authority. When she was talking about the Premier being acutely embarrassed, I can only assume that the honourable member is suggesting that she was acutely embarrassed when that film was censored. I read the paper the other day and noted the comment of my colleague the Attorney, who said that all he was seeking was for the film to be correctly classified. That was certainly his comment in the press. On this occasion I think it is very important that we get the facts, and I will ensure that the honourable member—

Members interjecting:

The PRESIDENT: Order! The Hon. Ms Laidlaw will take her punishment in silence.

The Hon. P. HOLLOWAY: I will ensure that on this occasion we do get the facts about what happened in this case. The honourable member said that the Attorney had flirted with censorship, but that would not appear to be the case, if the press reports in the early papers were correct. I will make sure that we get an accurate description of what happened in this case and bring back a reply.

***

The South Australian Attorney General Michael Atkinson has reversed his decision to ban a film at the French Film Festival in Adelaide.

The French film Irreversible, which has screened interstate and was an official selection at the Cannes Film Festival, was refused a classification by Mr Atkinson after organisers failed to fill in the correct paperwork.

A spokeswoman for Mr Atkinson says he has approved a re-submission from organisers giving the go-ahead for the film to be screened at the festival, which starts tomorrow night.

***

With the banning of KEN PARK in May 2003 it seemed unlikely that any distributor would be willing to take a risk on presenting IRREVERSIBLE to the OFLC. However the newly formed Accent Film Entertainment took a gamble. On November 26th 2003 it payed off when the OFLC unanimously passed it R18+ (Strong Sexual Violence, Graphic Violence, Sexual Activity).

The SMH article from January 29th 2004 titled Rape-revenge drama to screen quotes the OFLC Classification report as saying:

"The impact of the [rape] scene is high due to the lengthy, real- time depiction of the act of sexual violation," 
 "act of violence that is not eroticised in any way". 
"The film has artistic merit and serious intent"

The Director of the OFLC, Des Clarke was interviewed at length in The Age article Censors and Sensibilities on February 13th 2004. He explains more fully the reasons for the R18+ rating. 

The film opened in Sydney and Melbourne on February 12th 2004. It gained some media coverage because of the controversial scenes, but little negative reporting. The Christian Democratic Party issued the following media release on Thursday 19th February 2004.

‘Irreversible’ unforgivable?

Rev Fred Nile MLC, Leader of the Christian Democratic Party has written to the Federal Attorney General asking for the film “Irreversible” to be prohibited from screening in Australia. His letter is as follows: “I have just discovered that the film "Irreversible", which created some controversy when it was screened during several film festivals in Australia last year, was classified "R" by the OFLC last November.

This film would have contravened the OFLC guidelines operating before March 2003. It contains a scene of actual fellatio - with explicit genital contact - clearly prohibited under the old guidelines.

It opens with a scene of excessive, graphic, detailed violence - a man's head is beaten to a pulp with a fire extinguisher. It contains an excessively prolonged and disturbing (nearly ten minute) scene of anal rape. Many women, even film reviewers, were sickened by this 9 minutes of brutal sodomy. [See review at: http://www.nypost.com/movies/55502.htm]

The guidelines say that films will be refused classification if they contain, among other things, "violence with a very high degree of impact or which are excessively frequent, prolonged or detailed; sexual violence, cruelty or real violence which are very detailed or which have a high impact."

The high impact of the violence in this film was so great that large numbers of people walked out during screenings, despite being warned of the content in advance.

Has the OFLC become desensitised to graphic sexual and other violence? Is there no film with violence of impact high enough to be refused classification?

The new guidelines are written in relative terms - "high impact" receives a higher rating than "low impact". When the boundaries are pushed, and films which would formerly have received an "RC" classification are rated "R" instead, the whole system moves in a more permissive direction.

As more explicit sexual and other violence is allowed in the R category, so the boundaries are made more libertarian in MA, M, PG - even G films are ultimately affected. I urge you, as Attorney-General in the national interest to request the Film Review Board to review the "R" classification given to the film "Irreversible" and to prohibit its screening in Australia”.

Note that he claims one of his concerns is that:

"As more explicit sexual and other violence is allowed in the R category, so the boundaries are made more libertarian in MA, M, PG"

This more liberal approach has allowed THE PASSION OF CHRIST to be passed MA15+. This is a film that Nile has had nothing but praise for, his review states.

"I believe The Passion of Christ, through Mel Gibson's inspired faith and leadership, was produced by the guidance of Almighty God through the Holy Spirit in the studios of heaven."

Under a more restrictive OFLC, THE PASSION OF CHRIST should have received an R18+. In the UK and Canada it was restricted to those over 18, and in the USA 17.

***

Alex Meskovic from the Sydney Chauvel Cinema was quoted in the SMH on March 6th 2004 commenting on audience response to IRREVERSIBLE.

"Generally there's been no reaction"
"I'm amazed how tough people are in this town. Some people even say, 'It's not as violent as I thought it would be.' "

By mid-March the film was coming to the end of its run in Sydney and Melbourne and was preparing to move to other capital cities. However on March 19th the ultra-conservative Australian Family Association, with the support of F*** Nile applied to the Classification Review Board to have the film banned. There was some delay in accepting the application as they requested a fee waiver. Yes you read that correctly. Not only did they want it banned, but they also didn't want to pay for it! The Review Board refused the request, so it was not until March 23rd that the fee was paid and things started moving. The Review Board issued the following News Release on March 23rd. 

Application for review of the film Irreversible received

The Classification Review Board has received an application from the Australian Family Association (AFA) for review of the Classification Board’s decision for the French film Irreversible.

Irreversible was classified R18+ with the consumer advice, “Graphic violence”, by the Classification Board on 26 November 2003.

Although reports in the media indicated that the review had been confirmed as early as Monday 22 March 2004, procedural issues concerning the payment of fees meant that requirements for an application for review were not satisfied until late this afternoon.

There has been no date for a review of Irreversible set by the Classification Review Board.

The Classification Review Board’s decision and reasons for its decision will appear on the OFLC website when finalised.

Issues for consideration by the Classification Review Board include:

• whether the AFA has standing to apply for review, and

• whether the Review Board should exercise its discretion to accept the application from the AFA outside the 30 day statutory time limit following the film’s classification by the Classification Board.

The Classification Review Board is an independent merits review body that meets in camera to make a fresh decision on classification matters previously determined by the Classification Board.

Maureen Shelley
Convenor
Classification Review Board

This was followed by another news release on March 26th 2004.

Review date announced for the film Irreversible

The Classification Review Board will meet on Tuesday 30 March 2004 to consider the application for review of the film Irreversible.

An application for review of the Classification Board’s decision for the film Irreversible classified R18+ with consumer advice ‘Strong sexual violence, Graphic violence, Sexual activity’ has been received by the Classification Review Board from the Australian Family Association (AFA).

The Review Board will be constituted by the Convenor, Ms Maureen Shelley, Dr Robin Harvey and Mr Rob Shilkin.

The Review Board’s decision and reasons for its decision will appear on the OFLC website when finalised.

Maureen Shelley
Convenor
Classification Review Board

***

The Board met on March 30th to consider the application for review. This news release was issued on the same day, it is followed by the complete Review Board Report.

 
Classification Review Board determines review for Irreversible out of time

The Classification Review Board met today to consider an application for review of the classification of the film, Irreversible, which is classified R18+ with the consumer advice, ‘Strong sexual violence, Graphic violence, Sexual activity’.

The Classification Review Board exercised its discretion not to hear the application on the basis that it was out of time.

The Classification Review Board convened in response to an application from the Australian Family Association. It considered submissions from the Australian Family Association, and the film’s distributor, Accent Film Entertainment.

In considering the out of time application and after viewing the film, the Classification Review Board considered there was virtually no prospect of the film’s classification changing.

It did not consider if the Australian Family Association had standing to apply for review of the film as a ‘person aggrieved’.

***

MEMBERS: 
Ms Maureen Shelley (Convenor)
Mr Robert Shilkin
Ms Kathryn Smith

APPLICANT: Australian Family Association (AFA) represented by Mr Damien Tudehope (Solicitor)

INTERESTED PARTIES: Accent Film Entertainment Pty Ltd (Original Applicant) represented by Mr Dean O’Flaherty (Marketing and Acquisitions Manager); Ms Raena Lea-Shannon (Solicitor), Mr Douglas Stewart (Classifier);

• To consider whether the Review Board should exercise its discretion to accept the application for review of a decision outside the prescribed period

• To consider whether the AFA has standing to apply for review

• To review the Classification Board’s (the Board) decision to classify the 35mm format film Irreversible R18+ with the consumer advice “Strong sexual violence, Graphic violence, Sexual activity”

The Classification Review Board (the Review Board) determined that

(a) an application for review of the decision of the Classification Board made by the AFA was made outside the time stipulated in section 43(3)(a) of the

(b) it should not exercise its power under section 43(3)(b) to allow the making of the application for review outside 30 days stipulated in section 43(3)(a) of the Classification Act.

The Classification Act governs the classification of films and the review of classification decisions. Section 9 of the Classification Act provides that films are to be classified in accordance with the National Classification Code (the Code) and the classification guidelines (the Guidelines). 

Section 42(1)(d) of the Classification Act provides that a person aggrieved by the decision may apply to the Review Board for a review of a decision. 

Section 42 (3) and (4) deem particular persons, organisations or associations, who fit within the requirements of the section, to be “persons aggrieved” in relation to a “restricted decision”. A restricted decision includes a decision to classify a film R.

Section 43(3) of the Classification Act provides that an application for review must be made (a) within 30 days after the applicant received notice of a decision; or (b) within such longer period as the Review Board allows.

Between 6 March 2003 and 6 April 2003 screenings of Irreversible took place in Canberra, Sydney, Melbourne, Brisbane, Adelaide and Perth during the French Film Festival. At that time the film had been granted a Film Festival exemption by the Director of the Classification Board. There was media coverage regarding the Festival and the nature of the film Irreversible.

On 30.10.03 an application by Accent Film Entertainment dated 28.10.03 for classification of the film Irreversible was received by the Applications Section of the Office of Film and Literature Classification (OFLC).

On 19.11.03 the Classification Board determined a classification for Irreversible of “R18+ (Restricted)” with the consumer advice “Strong SexualViolence, Graphic Violence and Sexual Activity.”

On 26.11.03 a Classification Certificate for the Irreversible was issued and sent to Accent Film Entertainment Pty Ltd. By 27.11.03 the determination was published on the public database on the OFLC website.

The AFA submitted that it first became aware of the decision of the Classification Board to give Irreversible an R18+ classification through various media reports published during February 2004. A notice of the decision of the Classification Board on Irreversible was provided by the OFLC to the Perth office of the AFA on 3 February 2004.

Screenings of Irreversible were held on the weekend of 7 and 8 February and received some publicity in the national media. Subsequently Irreversible was screened at the Chauvel and Valhalla cinemas in Sydney, and at the Lumiere cinema in Melbourne. At these screenings the classification determination and consumer advice were publicised.

Mr Egan of the AFA wrote a letter dated 9.03.04 to the Convenor of the Classification Review Board seeking a review of the Classification Board’s decision to classify the film Irreversible “R18+” and seeking advice of fees and any additional steps in pursuing the review. This was received by fax on 10.03.04.

By fax dated 10.03.04, the Secretary of the Review Board wrote to the AFA enclosing an application form for completion and advising of the fee for review, noting that until a signed application form and prescribed fee were received, the matter would not be considered for review.

On 10.03.04 the Secretary of the Review Board spoke to Mr Richard Egan of the AFA by telephone. Mr Egan raised preliminary issues and suggested that fees should not be payable unless a substantive review of the film was held.

The Secretary agreed to seek further guidance from the Principal Policy Officer at OFLC and to keep him informed about the Review Board’s progress in dealing with the issue.

Mr Egan wrote a letter to the Review Board dated 10.03.04 confirming his conversation with the Secretary. The letter asserted that the prescribed fee of $2820 was only payable if there was a substantial review, and there was no fee for deciding preliminary questions of standing and whether to accept the application out of time. The letter proposed options for proceeding without paying fees.

On 12.03.04 the Secretary of the Review Board spoke again with Mr Egan of the AFA. She confirmed that she was working on the issues he had raised and would get back to him as soon as she had obtained further directions from the Convenor.

In a letter of 15 March 2004, faxed to the AFA the Secretary advised that:

• an application for review must be accompanied by the prescribed fee

• the AFA could apply to the Director (of the Classification Board) to have the prescribed fee waived

• the Convenor had advised that as preliminary issues would involve a consideration of the merits of the substantive application for review the preliminary issues and substantive issues would be dealt with in one hearing

• until an application accompanied by fees, or a fee waiver, was received the Review Board would not treat the application as having been lodged.

In a letter of 15 March 2004 to the Director seeking a waiver of fees, the AFA stated that:

• the OFLC provided the Board’s reasons for its decision by fax on 03.02.04

• it also wrote to the Attorney-General, Philip Ruddock, asking him to apply for review of the decision on 03.02.04

• the Attorney-General, Philip Ruddock replied to the AFA’s letter declining to apply for review of the decision on a letter dated 03.03.04, but the letter was actually received on 09.03.04

• the Review Board replied (to the AFA’s fax of 10.03.04) on 15.03.04 ignoring its arguments and asserting that the prescribed fee was payable whether a substantive hearing proceeded or not; and proposing it apply for a fee waiver.

In a letter of 17 March 2004 faxed to the AFA on that date, the Director confirmed that a payment of fees or fee waiver was necessary before the Classification Review Board could consider an application for review and that the Review Board has no power to waive fees or to refund fees in the event that preliminary issues were not determined in an applicant’s favour. An additional application form was faxed. Confirmation was also sought as to the grounds on which the AFA sought a fee waiver.

On 17 March 2004, the AFA lodged via fax the completed application form and confirmation that it sought a waiver of fees.

On 23 March 2004, the Director advised the AFA in writing that the fee waiver had been granted.

On 30 March the Review Board viewed a screening of Irreversible. The parties were invited to the screening. The applicant was represented by Mr Damien Tudehope. The original applicant did not attend the screening.

Following the screening the Review Board convened a meeting to determine the application by the AFA.

The Convenor advised the parties that the Review Board proposed to deal first with the out of time issue, followed by the matter of whether the Australian Family Association had standing as a person aggrieved and then the substantive application of review of the decision of the Classification Board.

The parties did not object to this process.

The Convenor provided a copy document, prepared by the Review Board secretariat, of significant dates regarding the film Irreversible to the applicant and original applicant. This document was accepted by the parties as being an accurate statement of the order of events. The chronology established by that document is reflected above.

The Review Board heard oral submissions on the “out-of-time issue” on behalf of the AFA from Damien Tudehope and on behalf of the original applicant –Accent Film Entertainment – from Raena Lea-Shannon of Michael Frankel & Co. Solicitors and Douglas Stewart, classifier. Written submissions were also received from each of these representatives. The Review Board also received a written submission from the Communications Law Centre.

After an adjournment to consider the matter the Review Board made its determination and advised the parties. The Review Board did not determine whether the AFA was an ‘aggrieved person’ within the scope of section 43(1)(d) of the Classification Act’ or the substantive review of the decision.

In making its determination the Review Board had regard to the following:

(i) the Australian Family Association’s application for review (including written and oral submissions);

(ii) the written and oral submissions on behalf of Accent Film Entertainment

(iii) the relevant provisions in the Classification Act; and

(iv) principles described by Wilcox J in Ltd & Ors v Cohen 3 FCR 344 (‘Hunter Valley’) and subsequent Federal Court and Federal Magistrates Court cases as being relevant to determining whether to grant an application for an extension of time in which to lodge an application.

The Classification Board stated in its report regarding Irreversible:

“In a Paris sex club, Marcus and Pierre are on a frenzied night time search for a man. Overcome by rage and despair, they are involved in a brutal act of violence. The reason is revealed as the story plays out in reverse. Marcus’s girlfriend Alex is brutally raped and bashed after a party. The complex relationship between Marcus, Pierre and Alex also unfolds and the film ends with Marcus and Alex as yet untouched by the horror that awaits them

The Review Board accepted this view of the product.

The Review Board found that

(a) the decision of the Classification Board was published to Accent Film Entertainment Pty Ltd and on the OFLC website by no later than 27 November 2003;

(b) the AFA was sent a copy of the classification decision on 3 February 2004;

(c) by the time the AFA made an application for review which complied with section 43(1) of the Classification Act (17 March 2004) more than 30 days had passed since the AFA and Accent Film Entertainment Pty Ltd had received notice of the decision of the Classification Board.

In these circumstances the Review Board found the application for review of Irreversible to have been lodged outside the 30 day period for application for review of a decision specified by section 43(3)(a) of the Classification Act.

Was the application made within the period prescribed by section 43(3)(a) of the Classification Act?

The classification certificate for the film Irreversible was issued on 26 November 2003 and notice to that effect was posted on the OFLC public website by no later than 27 November 2003.

The AFA states in its written submission:

“The Australian Family Association first became aware of the decision of the Classification Board to give Irreversible an R18+ classification through various media reports published during February 2004. A notice of the decision of the Classification Board on Irreversible was received, as requested, by facsimile from the Office of Film and Literature Classification at the Perth office of the Association on 3 February 2004.

" supplied], asking him to exercise his prerogative under Section 42 of the Act to apply for a review of the decision. We received a reply from Mr Ruddock, dated 3 March 2004 on 9 March 2004, declining to request a review of the decision. [Copy supplied].

" period may have expired on 4 March 2004 the Classification Review Board should exercise its discretion under Section 43 (3) (b) to allow extra time for the appeal. It would have been unreasonable for the Association to independently initiate a review, which may have exposed us to a cost of $2,820 in the event we could not obtain a waiver of fees, while waiting to hear from the Attorney-General as to whether he would himself apply for a review.”

There had been correspondence between the OFLC and the AFA commencing 3 February 2004. Correspondence between the Review Board Secretariat and the AFA commenced on 9 March 2004.

The AFA lodged an application in the approved form for review of the classification of the film on 17 March 2004 and at the same time lodged an application for waiver of fees under Section 91 of the Classification Act with the Director of the OFLC. The fee waiver was granted on 23 March 2004.

Sub-section 1 of Section 43 of the Classification Act states

(1) An application for review of a decision must be:

(a) in writing; and

(b) made in a form approved by the Convenor in writing;

and

(c) signed by or on behalf of the applicant; and

(d) except for an application by the Minister –accompanied by the prescribed fee.

These basic requirements for an application were, therefore, satisfied on 23 March 2004.

Sub-section 3 of Section 43 of the Classification Act states:

Any other application for review of a decision must be made:

(a) within 30 days after the applicant received notice of the decision; or

(b) within such longer period as the Review Board allows.

It is noted that the AFA had conceded that it was lodging an out of time application. However, it was the AFA's submission that it “received notice of the decision” on 3 February 2004 when it received a fax from the OFLC regarding the film’s classification. The applicant argued that the 30-day notice period commenced from this date. Even on this view its application fell outside the time prescribed by section 43(3)(a) of the Classification Act.

It has been the consistent practice, during a number of years, for the Review Board to consider that the 30 day notice period commences for the purposes of section 43(3) of the Classification Act on the date that the classification determination is published on the OFLC public website. In the case of Irreversible, this was by 27 November 2003.

In considering applications for review of decisions by the Classification Board, the Review Board must give due consideration to the interests of all parties including those of the original applicant, the public and others who have been in similar circumstances to the applicant.

The Review Board considers that it would be unreasonable for the notice period to commence at some later undetermined time, when applicants – particularly those other-than-original applicants – receive written confirmation from the OFLC regarding classification decisions. On this basis, the notice period could commence at any time and original applicants for film classification would have no certainty regarding classification decisions.

In its written submission the AFA noted that as part of its activities, it “hasmonitored and analysed developments in the media and entertainment industry, including developments in the classification of films.” (para 1.2). The Review Board considers that those interested in film classification – such as the AFA – should take reasonable steps to keep themselves informed regarding decisions of interest to them.

Information regarding the nature of the film Irreversible was available in the media approximately a year prior to the applicant contacting the OFLC and was available on the OFLC public website from 27 November 2004, some 2½ months earlier than the AFA’s contact with the OFLC.

Members of the AFA could have seen the film in March/April 2003 in several states. In its submission of 9 March 2004, the AFA states that it had been unable to view the film, although it was screening in Sydney and Melbourne, albeit in limited numbers of cinemas, from 7 February 2004 in Sydney and 12 February 2004 in Melbourne.

Even if it is accepted that the 30 day notice period commenced on 3 February 2004, the decision of the Review Board on the out-of-time issue would not change. The AFA could have lodged an application for review at the same time that it was writing to the Attorney General in February 2004. Although not taken into consideration, the Review Board was aware that this was the action followed by the AFA in regard to the film Baise Moi in 2002 – it pursued both actions simultaneously. When the then Attorney General applied to the Review Board for a review of the decision regarding Baise Moi, the AFA withdrew its application.

Should the Review Board allow a longer period for the AFA to make its application using its power under section 43(3)(b)?

In Hunter Valley it was held that a number of factors were relevant in determining whether to grant an extension of time for making an application to apply for judicial review under section 11 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). Section 11 confers a discretion on the Federal Court to extend time for the making of an application in a similar manner to the discretion conferred under section 43 of the Classification Act on the Board.

The principles distilled by Wilcox J and modified by the Full Court of the Federal Court in the in the matter of Comcare v A’Hearn (1993) 45 FCR 441 have been applied by many Courts and Tribunals. They were summarised in the matter of November 2001):

1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The 'prescribed period' of 28 days is not to be ignored ( Commission

2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential precondition (Comcare v A'Hearn (1993) 45 FCR 441 and

3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See

4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287)

5. The mere absence of prejudice is not enough to justify the grant of an extension. (Lucic at p 416)

6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417)

7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the [decision making body’s] discretion (Wedesweiller v Cole

The Review Board was assisted by consideration of these principles in determining this matter. In considering these principles the Review Board found :

• the explanation by the AFA for the delay to be inadequate,

• the action taken by the AFA apart from lodging the application, to have

been reasonably sufficient but needed to have commenced earlier than February 2004

• that on preliminary assessment of the merits of the application, based on a viewing of the film and the written submissions provided by the applicant and the original applicant, the application for review was unlikely to succeed and there was virtually no prospect of the classification changing;

• that the Review Board had been very consistent in applying the 30-day rule in the past to a range of applicants (with either more or less resources than the AFA), including those with less experience in classification matters than the AFA. It was not in the interests of fairness between applicants in like positions to hear this out-of-time application while not hearing others; and

• there was a need for time limits to apply to the making of applications to review classification decisions to enable greater certainty and finality of classification decisions;

• that while there might arguably be some public interest in ensuring a strict application of the Guidelines, as submitted by the applicant, this was not sufficiently significant to grant an out of time application, particularly when coupled with the Review Board’s assessment of the merits of the application.

Having regard to these matters the Review Board decided that it should not exercise its power under section 43(3)(b) to allow the making of the application for review outside the 30 days stipulated in section 43(3)(a) of the Classification Act.

As noted above, the Review Board did not proceed to review the classification decision in Irreversible or deal with the remaining preliminary issue of the AFA’s standing as either a ‘person aggrieved’ or as a person or organisation ‘deemed to be a person aggrieved’ under section 42 of the Classification Act.

A submission was received from the Dr Derek Wilding of the Communication Law Centre and circulated to the applicant, the original applicant and members of the Review Board. However, as it related to the substantive application it was not referred to, nor taken into account, during the Review Board’s deliberations.

The AFA was advised that it could make an application under the ADJR Act in relation to the determination of the Review Board.

Due to the delay, without adequate reason, in the lodgement of the application for review, the Review Board determined not to exercise its discretion to allow an extension of the period for lodgement of the application.

***

Accent Film Entertainment issued the following media release.

PRESS RELEASE "IRREVERSIBLE"

Today the Office of Film and Literature Classification, Classification Review Board heard the Application of the Australian Family Association (AFA) who were seeking a review of the R Classification of "Irreversible".

The AFA had sought
- a waiver of the review application fee,
- an extension of the 30 day notice period required to make an
application for review,
- a determination on whether the AFA had standing as a person aggrieved
to bring the application and
- a review of the R Classification

The Classification Review Board advised
- that the application fee had been waived,
and decided
- there were no grounds submitted by the AFA for the Review Board to grant an extension.

In making its decision the Review Board had regard to the merits of the AFA's application and  having viewed the film decided there was virtually no prospect of the Review Board changing the R Classification.

Dean O'Flaherty of ACCENT FILM ENTERTAINMENT, the distributor said, "We are delighted with the decision, especially the vindicating remarks of the Review Board in respect to the R Classification. This is a great decision for freedom of artistic expression and the right of adult Australian film-goers to see internationally acclaimed films like Irreversible without having to leave the country"

"We could never have got this outcome without our lawyer Raena. Raena Lea-Shannon, at Michael Frankel and Company, leading  Entertainment Law Firm took on our case as pro-bono. She is on the Committee of Watch On Censorship and is committed to the protection of freedom of expression".

***

It seemed that the status of the film was now secure. However there were some warnings on May 13th when Brian Harradine had the following exchange with Senator Troeth

Senator HARRADINE (Tasmania) - I have a question in relation to the last matter of the board being the authority and everything being transparent. As I understand it, a request is made to the federal AttorneyGeneral by a state AttorneyGeneral about the classification of a film. What is the role of the federal AttorneyGeneral? For example, I understand that the South Australian AttorneyGeneral has, in respect of the film Irreversible, made a request to the federal AttorneyGeneral. Could the parliamentary secretary advise the committee as to what stage that has reached and what is happening to that request?

Senator TROETH  (Victoria—Parliamentary Secretary to the Minister for Agriculture, Fisheries and Forestry) (1.18 p.m.) 

Yes, you are quite right, Senator Harradine, the AttorneyGeneral from South Australia did write to the federal AttorneyGeneral. The statement on this matter and the classification of the review board was that they would not have made a different decision. The AttorneyGeneral at the Australian government level has written back to the South Australian AttorneyGeneral asking him whether he wishes to proceed further with the matter, and as yet we have not received a response.

Senator HARRADINE (Tasmania) (1.18 p.m.) 

What is the attitude of the Commonwealth AttorneyGeneral with respect to this matter? Here is a matter that has been raised by a number of people concerned with not only the fact that this has occurred but the precedent that it sets. We have all been concerned about sexual violence, for example. How can it be explained away that the guidelines in 1996 stated `Sexual violence may only be implied and should not be detailed' whereas the new guidelines state that `sexual violence may be implied, if justified by the context'. That is a significant change, which has allowed for rather lengthy depictions of sexual violence in the film Irreversible. Surely the AttorneyGeneral must have a view of the matter. I do not know whether this change occurred under the previous AttorneyGeneral or the current one—presumably it was the previous AttorneyGeneral. What is the current AttorneyGeneral's view of the matter?

Senator TROETH  (Victoria—Parliamentary Secretary to the Minister for Agriculture, Fisheries and Forestry) (1.20 p.m.) 

As I indicated to Senator Harradine, we are at present awaiting a response from the South Australian AttorneyGeneral. If the AttorneyGeneral in South Australia wishes to have a review, the review will proceed. The Attorney has considered his own power to have a review. At this stage he does not intend to have a review of his own volition; he will await the response from the South Australian AttorneyGeneral.

***

Harradine was back in action on May 24th. He questioned Des Clarke about the film and the Review.

Senator HARRADINE —This document is titled Guidelines for the Classification of Films and Computer Games. You have appealed to us to recognise that these are mere guidelines, and in this particular case of Irreversible you have gone outside the guidelines.

Mr Clark —That is not the case. I would suggest that the board's decision is consistent with the guidelines.

Senator HARRADINE —Why? You have clearly gone out of the guidelines when it comes to explicit sex in a violent film.

Mr Clark —There is one brief moment of explicit sexual content in the film which is not inconsistent with decisions made with both the old guidelines and the new guidelines.

Senator HARRADINE —That is an assertion made by you which will be tested, will it not, under the review?

Mr Clark —It will, Senator. Yes, I am asserting that, but that is what is contained within the board report in relation to this film. As you are aware, the review board has also considered this film and said that, if they were to review it, they would be unlikely to change that decision. So they also have applied the guidelines. As I understand it, there is to be a review by the Classification Review Board of this film anyway, so that will be a further test.

CHAIR —Which will either affirm or change the previous decision?

Mr Clark —Yes, that is correct.

Senator HARRADINE —Which will what?

Mr Clark —Either affirm or change the board's decision.

Senator HARRADINE —What will change the board's decision?

Mr Clark —The Classification Review Board will be conducting a review of the film at some point in the near future, and that will be a further test of the film in terms of the use of the guidelines.

Senator HARRADINE —And that was brought about by what action?

Mr Clark —The South Australian Attorney-General initially requested a review. The Attorney advised him that the matter had been looked at by the Classification Review Board and asked if he still wished to proceed. Attorney-General Atkinson has indicated that he wishes to proceed, and the process for a review of the film has begun.

Senator HARRADINE —By the same people who rejected—

Mr Clark —I am sorry, I cannot comment on the composition of the Classification Review Board or its procedure.

Senator HARRADINE —Why?

Mr Clark —I am the Director of the OFLC and chairman of the classification board, and we keep a good strong distance between the two boards.

Senator HARRADINE —That is admirable, but who can give me advice as to who will do this review? You mentioned that there is a review taking place. I am just asking the question: by whom?

Mr Clark —The convener of the Classification Review Board will be consulting with members of the Classification Review Board as to the procedure and who the members of the review board would be for this review, so I cannot answer that because that is something that they would be negotiating at the moment.

Senator HARRADINE —When will that be known?

Mr Clark —I should imagine this week, but as early as possible in the week is what I imagine they will be aiming for.

Senator HARRADINE —The decision regarding impact is a subjective decision, is it not?

Mr Clark —The guidelines are strictly that: they are guidelines. Therefore the board, in making its decisions, tries to be as objective as possible in using the instruments it has been given but, at the end of the day, yes, they have to make an on-balance decision. If that is subjective, that is what it is; but they are not making wayward decisions in relation to their statutory obligation.

***

Two days later, on May 26th, the Review Board issued the following media release.

Review of the film Irreversible announced

An application for review of the Classification Board’s decision to classify the film Irreversible, R18+ with the consumer advice “Strong sexual violence, graphic violence, sexual activity”  has been received from the Attorney-General, on the request of the Attorney-General of South Australia.

Under the Commonwealth Classification (Publications, Films and Computer Games) Act 1995, the Attorney-General is required to apply for a review of a classification decision, if so requested in writing by a Minister of a State or Territory who is responsible for censorship matters.

The Attorney-General may make an application for review at any time. However, an application for review of a classification decision by any other party must be made within 30 days after the applicant received notice of the decision.

The Classification Review Board exercised its discretion not to hear a previous application for review of the classification of Irreversible, made by the Australian Family Association, because it was out of time.

The Classification Review Board’s decision and reasons for its decision for this review of Irreversible will appear on the Office of Film and Literature Classification’s website when finalised.

***

Watch On Censorship is informed that the Commonwealth Attorney General Phillip Ruddock has bowed to a request from the South Australian Attorney General to apply for Review of the Classification of the film Irreversible. This is despite the fact that Phillip Ruddock declined a request by the Australian Family Association to make an application for a review of Irreversible months ago, as he was of the view that the Guidelines had been properly applied by the Classification Board.

The AFA brought its own application out of time, despite the fact that there was public notice of Classification of the Film on the OFLC web site since 27 November 2003. The Review Board held in that case, "...those interested in film classification...should take reasonable steps to keep themselves informed regarding decisions of interest to them". The Review Board also said, "There was a need for time limits to apply to the making of applications to review classification decisions to enable greater certainty and finality of classification decisions”, and the Review Board found that there was "virtually no prospect of the classification changing”.

It seems that under Classification Laws in this country one can simply tug on the sleeve of every Attorney General until they find a sympathetic ear or political motive. This flies directly in the face of the intention of the Classification Code that was put in place to both streamline and simplify the classification procedure and thereby remove any degree of "Commercial Uncertainty" in the industry.

This late application by the South Australian Attorney General is scandalous. If Attorney Generals have carte blanche to make applications this late, it delivers a chilling impact on freedom of expression in this Country. There must now clearly be a limit imposed on the time within which an Attorney General can be allowed to seek a Review otherwise the entire industry will be placed in disarray.

Commercial distributors must now be seriously concerned. It seems now that at any time after the lapsing of the initial 30 day appeal period following classification approval, and throughout a film's marketing and release schedules - - - an Attorney General can selectively intervene and seek to have a review of an M, or revise an MA to R, let alone an R to RC. This has a severe impact on the credibility of Australian businesses operating in global markets and could cost local industries millions of dollars in cancellations and even small-to-medium business bankruptcies. Just as importantly, it fosters serious conservatism in selection of films and readiness out of dire necessity of distributors, to heavily cut their films to meet desired ratings.

Amendments were made after LOLITA to allow a wider test for aggrieved persons so that community groups with relevant objects related to the subject matter of a film could apply for a review without having to rely on the Attorney General's power. To bring this application on IRREVERSIBLE now, especially given the indication from the Review Board that there was "virtually no prospect of the classification changing" is no more than a blatant abuse of power.

IRREVERSIBLE was classified R on 19 November 2003.This was posted on the OFLC web site from 27 November 2003. The film was screened first on 7 February 2003. It has had Theatrical seasons in Melbourne, Sydney, Brisbane, Canberra and Perth and is already heavily in commercial and marketing preparation for DVD release in July. IRREVERSIBLE was also screened at the 2003 French Film Festival In Adelaide April 2003.

SA Censorship Call For Irreversible ABC Radio National 31.05.04

***

The following news release was issued by the OFLC on June 24th.

Date set for review of the film Irreversible

The Classification Review Board will convene on Wednesday 30 June 2004 to consider the classification of the French film Irreversible, directed by Gaspar Noe.

The review of the Classification Board’s decision of R with the consumer advice “Strong sexual violence, Graphic violence, Sexual activity” is in response to an application from the Attorney-General, on the request of the Attorney-General of South Australia.

The Classification Review Board will be constituted by Convenor, Ms Maureen Shelley, Deputy Convenor, The Hon Trevor Griffin, with members Ms Jan Taylor, Ms Dawn Grassick, Ms Kathryn Smith and Mr Rob Shilkin.

The Classification Review Board’s decision and reasons for its decision for this review of Irreversible will appear on the Office of Film and Literature Classification’s website when finalised.

The Classification Review Board is an independent merits review body that meets in camera to make a fresh decision on classification matters previously determined by the Classification Board.

***

The Review took place on June 30th 2004. The following two press releases were issued by the OFLC on the same day.

Review confirms R classification for Irreversible

A six-member panel of the Classification Review Board met today and a majority determined that the French film Irreversible, directed by Gaspar Noe, should be classified R18+.

The Classification Review Board supported the R18+ classification with the consumer advice, “High-level sexual violence, Graphic violence, Sexual activity.” 

R18+ is a restricted classification. It means the film is legally restricted to adults aged 18 years and over. Some material classified R18+ may be offensive to sections of the adult community.

The application to review the R18+ classification of Irreversible, decided by the Classification Board on 26 November 2003, was made on behalf of the Attorney-General of South Australia.

The Review Board received written and heard oral submissions from the original applicant, Accent Films. Correspondence from the South Australian Attorney-General was submitted by the Australian Attorney-General for consideration by the Review Board. The Review Board also received written and heard oral submissions from the Australian Family Association and the Communications Law Centre.

Convenor Maureen Shelley said, “Although the cumulative impact of this film is strong and disturbing, the Classification Review Board does not consider that the content of exceeds the guidelines for the R18+ classification”.

In reviewing the classification, the Classification Review Board worked within the framework of the National Classification Scheme, applying the provisions of the

The Classification Review Board is an independent merits review body that meets in camera to make a fresh classification decision when applications to review classification matters previously determined by the Classification Board are made. Reasons for this decision will appear on the OFLC website when finalised.

***

BACKGROUND INFORMATION

Review of Irreversible

Who made application for today’s review of Irreversible?

The review conducted today by a six member Classification Review Board was convened in response to an application for review of Irreversible made by the Australian Attorney-General, the Hon Philip Ruddock, on behalf of the Attorney-General of South Australia, the Hon Michael Atkinson.

Why did the Australian Attorney-General make the application?

At law, the Australian Attorney-General is compelled to make an application for review if a Minister responsible for Censorship requests in writing that he does so.

Who sat on the Classification Review Board for today’s review of Irreversible?

Today the Classification Review Board was constituted by Convenor, Ms Maureen Shelley, Deputy Convenor, The Hon Trevor Griffin, with members Ms Jan Taylor, Ms Dawn Grassick, Ms Kathryn Smith and Mr Rob Shilkin.

Was there a previous application made for review of Irreversible?

The Australian Family Association made an application for a review of Irreversible in March of this year.

What was the outcome of the application made by the Australian Family Association?

Under the Classification (Publications, Films and Computer Games) Act 1995 an application for review must be made within 30 days after the applicant (who originally applied to have the film classified) received notice of the decision, or “within such longer period as the Review Board allows”. In the case of the application made by the Australian Family Association for review of Irreversible in March of this year, the Classification Review Board exercised its discretion not to hear the application on the basis that that statutory period of 30 days had elapsed.

Was the standing of the Australian Family Association as “a person aggrieved” considered?

No. Once the “out of time” decision was made, no other matters were required to be considered at that time.

Does today’s Classification Review Board decision apply throughout Australia?

Yes, the decision has immediate effect in all States and Territories.

***

You will note that the films warning has been changed from:

R18+  (Strong Sexual Violence, Graphic Violence, Sexual Activity)

to

R18+(High Level Sexual Violence, Graphic Violence, Sexual Activity) 

***

The full Review Board report is as follows.

30 June 2004
23-33 MARY STREET SURRY HILLS, NSW

MEMBERS: 
Ms Maureen Shelley (Convenor)
The Hon Trevor Griffin (Deputy Convenor)
Ms Dawn Grassick
Ms Jan Taylor
Mr Robert Shilkin
Ms Kathryn Smith

APPLICANT: The Hon Phillip Ruddock, Commonwealth Attorney-General– not represented.

INTERESTED PARTIES:
Accent Film Entertainment Pty Ltd (Original Applicant) represented by Mr Peter Campbell (Principal Director); Ms Raena Lea-Shannon (Solicitor, Michael Frankel & Co Solicitors), Mr Douglas Stewart (Classifier, SBS, Expert Witness);

Australian Family Association (AFA) represented by Mr Damien Tudehope (Solicitor, O’Hara & Company)

Communications Law Centre represented by Dr Derek Wilding, Director, University of New South Wales

BUSINESS:
To review the Classification Board’s (the Board) decision to classify the 35mm format film Irreversible R18+ with the consumer advice ‘Strong sexual violence, graphic violence, sexual activity’.

DECISION AND REASONS FOR DECISION

The majority of the Classification Review Board (the Review Board) determined that the film Irreversible was classified R18+ with the consumer advice ‘High-level sexual violence, graphic violence, sexual activity’.

The

Relevantly, the Code in paragraph 3 of the Table under the heading ‘Films’ provides that films (except RC films and X films) that are unsuitable for a minor to see are to be classified ‘R’. The Code also states various principles for classifications, and that effect should be given, as far as possible, to these principles including that “adults should be able to read, hear and see what they want” and “the need to take account of community concerns about depictions that condone or incite violence, particularly sexual violence and the portrayal of a persons in a demeaning manner”.

Section 11 of the Classification Act requires that the matters to be taken into account in making a decision on the classification of a film include the:

(a) standards of morality, decency and propriety generally accepted by reasonable adults; and

(b) literary, artistic or educational merit (if any) of the film; and

(c) general character of the film, including whether it is of a medical, legal or scientific character; and

(d) persons or class of persons to or amongst whom it is published or is intended or likely to be published.

Three essential principles underlie the use of the Guidelines, determined under section 12 of the Classification Act:

• The importance of context;

• Assessing impact; and

• Six classifiable elements – themes, violence, sex, language, drug use and nudity.

On 30 March 2004, the Review Board exercised its discretion not to hear an application for review of the film Irreversible submitted by the Australian Family Association as it was made out of time. Subsequently in May 2004, the Commonwealth Attorney-General lodged an application for review of Irreversible at the request of the South Australian Attorney-General, pursuant to section 42 of the Classification Act.

The Review Board convened in response to the application from the Attorney- General. The Review Board watched the film Irreversible, and received written submissions and heard oral submissions from Accent Film Entertainment Pty Ltd’s representatives (Original Applicant) represented by Mr Peter Campbell (Principal Director); Ms Raena Lea-Shannon (Solicitor, Michael Frankel & Co Solicitors), Mr Douglas Stewart (Classifier);

Written and oral submissions were also received from the Australian Family Association (AFA) represented by Mr Damien Tudehope (Solicitor) and the Communications Law Centre represented by Dr Derek Wilding, Director, University of New South Wales, as interested parties.

Mr Tudehope submitted that any of the members of the Review Board who had been present at the 30 March meeting should absent themselves from the meeting to avoid the appearance of apprehended bias. The Convenor invited submissions on the matter from Accent Films and the Communications Law Centre. Accent Films and the Communications Law Centre submitted that they did not perceive such bias and that the removal of the members of the original panel was unnecessary.

Ms Shelley advised that the composition of Review Board panels was a matter for the Convenor and that it was her determination that the panel as constituted would consider that matter before it without bias. Ms Shelley determined that the review would proceed with the panel as constituted. Mr Shilkin and Ms Smith advised that they would give no consideration to the previous review.

Mr Tudehope accepted the Convenor’s decision stating that he believed the panel would hear the matter without bias. The substantive review proceeded.

In making its determination the Review Board had regard to the following:

(i) the application from the Attorney-General and the material submitted by him from the South Australian Attorney–General;

(ii) the written and oral submissions on behalf of Accent Film Entertainment;

(iii) the Australian Family Association’s submission (including written and oral submissions);

(iv) the Communications Law Centre’s submission (including written and oral submissions);

(v) the relevant provisions in the Classification Act;

(vi) the relevant provisions in the Code, as amended in accordance with section 6 of the Classification Act; and

(vii) the Guidelines.

The Classification Board stated in its report regarding Irreversible:

“In a Paris sex club, Marcus and Pierre are on a frenzied night time search for a man. Overcome by rage and despair, they are involved in a brutal act of violence. The reason is revealed as the story plays out in reverse. Marcus’ girlfriend Alex is brutally raped and bashed after a party. The complex relationship between Marcus, Pierre and Alex also unfolds and the film ends with Marcus and Alex as yet untouched by the horror that awaits them

The Review Board accepted this view of the product.

The Review Board found that Irreversible contains aspects or scenes particularly worthy of mention under various classifiable elements

(a) themes – there are strong themes in the film including a discussion of incest with passing reference to family breakdown at approximately 5 minutes; a racist assault on a taxi driver involving violence and racism at approximately 28 minutes; discussion of revenge for Alex’s rape with two “thugs” – a matter of crime at 39 minutes; discussion of sexuality including the use of sex workers and issues of sexual orientation, impotence or abstinence from approximately 57 minutes to 59 minutes 46 seconds. The verbal treatment of these matters requires a mature perspective.

(b) violence – At approximately 20 minutes Marcus threatens a man with a glass bottle saying he will bash the bottle in the man’s face – he repeatedly hits the man; at approximately 22 minutes a scene of high-level violence is shown where Marcus bashes Tenia’s companion with a fire extinguisher repeatedly – the man’s face caves in and the sound of bones crunching can be heard; at approximately 28 minutes Marcus hits the taxi driver, pulls him out of the car and steals his taxi; at approximately 36 minutes is a strong scene where Marcus threatens Concha a transgender sex worker – he threatens to “bash the tranny whore”; at approximately 41 minutes Alex is taken away on a stretcher – her face is bloodied and swollen, she appears to be in a coma; at approximately 44 minutes Tenia hits Concha; the high-impact scene involving the implied anal rape of Alex commences at approximately 46 minutes and continues until approximately 53 minutes – in addition to the implied anal rape Tenia threatens Alex with a knife, pulls her hair, explicitly hits her and explicitly and implicitly kicks her. The implied anal rape – while a high-impact scene – is restrained in its portrayal of a deeply offensive act. The man is fully clothed throughout; Alex is clothed for the most part and only partially naked at the end of the scene after her dress is torn; Tenia’s penis is not shown throughout the rape – although there is a fleeting depiction of his tumescent penis when he rolls off Alex; the rape of Alex is implied only – no penetration is shown. The impact of the scene is established by the elapsed time of the scene and the assaultative language used by Tenia to Alex and from her depiction of distress and terror. From approximately 55 minutes to approximately 56 minutes 28 seconds Tenia implicitly hits and kicks Alex. Saying she is now “dead meat” he spits on her and walks away. The sexual violence of the anal rape scene is implied violence and is justified by the context. The violence, while high in impact, is justified by the context.

(c) sex – at approximately 14 minutes two men are implicitly shown having sex, there is groaning; at approximately 15 minutes an erect penis is shown and a person is masturbating (actual sex) – the image is fleeting; at approximately 17 minutes two men are implicitly having sex, there are groans; at approximately 18 minutes two men are implicitly having sex, there are sounds of beating and groans; at approximately 19 minutes there is a projected image on a screen of two men having what appears to be actual fellatio; at approximately 19 minutes 40 seconds a man is shown in a S&M cradle asking passers by to “fist me”; at approximately 20 minutes, whilst Marcus is threatening a patron, a man is explicitly masturbating his penis in the background (actual sex) – the image is fleeting; from approximately 46 minutes to 53 minutes is the implied anal rape of Alex. The scenes of actual sex are fleeting and the impact diminished by the low light during the scenes. Throughout the film are verbal references to homosexual and heterosexual sex (“suck me”, “suck my big cock”, “we make each other come”, “I fucked like a rabbit”) – cumulatively these references add to the high impact of the film.

(d) language – there is extensive use of coarse language and sexually assaultative language throughout the film. It commences with a discussion between two men about the sex one man had with his daughter at approximately 5 minutes (“I slept with my daughter, she was so cute” his friend responds “We fuck up”); continues when the scene at the sex club, The Rectum, is shown – dialogue starts “Blood flowed out of that shithole”, “You’re gonna get your ass fucked in prison”, includes repeated use of the words fuck, ass, faggot, phrases like “fucked to death”, “fucking faggot” and “felching fuck club” and racist epithets such as “dirty chink fuck”, “your slant-eyed friends, asshole”, “you chink fuck” and “you filthy yellow fuck”. During the anal rape scene Tenia uses sexually assaultative language to Alex from “spread your legs bitch”, “don’t move cunt”, “you shit on me you’re dead you fucking high-class swine” to his commentary that includes “you bleeding, you open up your ass real good, so fucking good” to demands for her to “call me daddy, call me daddy, fucking cunt”. He refers to her as a “sweet hole”, a “little fucking whore”, a “piece of shit dead meat”, a “fucking sow” and a “fucking dog” – the language used by Tenia to Alex throughout the rape scene increases its impact to high. Under the Guidelines there are virtually no restrictions on language at the R classification.

(e) drug use – there are some scenes of implied drug use in the film and they are justified by the context. At approximately 20 minutes, Tenia’s friend is smoking and appears drugged; during the anal rape scene Tenia sniffs something from a bottle (approximately 50 minutes and 53 minutes); at approximately 58 minutes Marcus takes some substance in a bathroom with a number of women – possibly cocaine; at approximately 67 minutes Alex asks Marcus “what are you on? Don’t touch me”; at approximately 75 minutes when Marcus and Pierre are talking one passes the other “a pill I’ve saved and never used”. The scenes are justified by the context.

(f) nudity – at approximately 33 minutes Concha lifts her dress to show her penis; at approximately 55 minutes part of Alex’s breast is shown during the anal rape scene; at the end of the film a post-sex scene is shown of Alex and Marcus – at approximately 82 minutes and 83 minutes Marcus’ flaccid penis is seen as he rolls out of bed and walks across the room; at approximately 88 minutes Alex’s breasts are shown and a glimpse of Marcus’ penis is depicted. The nudity is justified by the context. 

The Board found that while the overall impact of the material was high, there was not sufficient strength in the behaviour of the protagonists to cause a higher level of impact for any individual scene or cumulatively. Scenes were dealt with in a realistic yet restrained manner that was neither gratuitous nor exploitative. Each scene was justified by the context in which it was presented and the overall theme of the film. The film techniques used by the film-maker – of low lighting, mid to long range shots (rather than close ups), and fleeting glimpses of action (such as in the sex club) rather than slow motion, meant that elements that may have had a very high impact were reduced in impact to high or strong.

The Review Board based its decision to classify the film Irreversible R18+ with the consumer advice ‘High-level sex scenes, graphic violence, sexual activity’ on the content of the film as set out in 6 above.

The Review Board accepts Accent Film Entertainment’s submission that the film is a serious film of some artistic merit. The Review Board notes the filmmaker uses confronting sound and camera techniques to challenge the viewer from the outset.

It is also noted that the director uses allegory to unravel the tale of what happens to two men when they descend into “the bowels of the Earth” and visit a sex club called The Rectum pursuing an act of revenge. The film appears to take a moral stance. It shows scenes of light, beauty and soft music when Alex and Marcus are engaged in heterosexual lovemaking and contemplating Alex’s possible pregnancy. It depicts scenes of darkness, dirt and violence when Marcus and Pierre pursue Tenia through the red-lit, winding passages of The Rectum with each scene unfolding yet another room of anonymous homosexual and/or sado-masochistic sex accompanied b7 grunts, groans and gyrating music. Regardless of its artistic intent or merit, by its nature the film contains material that may be offensive to sections of the adult community. Such material can be accommodated by the R18+ classification.

The film contains fleeting depictions of actual sex as detailed in 6 above. The Review Board determined that while the general rule under the Guidelines, is “simulation yes – the real thing no” that these scenes were so brief and so incidental that the general rule should not apply in this instance. The Review Board believed that the various potentially controversial scenes were depicted in context and were neither gratuitous nor glamorised.

The Board found that the treatment of violence, including sexual violence was justified by context, as were the actual