Julian McGaurin

Vic Federal
Member of the Senate
Liberal Party

A long time pro-censorship voice in the senate. He defected from the National Party to the Liberals in January 2006. He has taken to grilling the OFLC in Senate Estimates now that Brian Harradine has departed.

Date: 24 May, 2005
Department: attorney-general's portfolio
Database: Estimates Comm.
Committee name: LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE
Program: Office of Film and Literature Classification
Proof: Yes
Page: 103
Source: Senate

CHAIR—Do you have any questions, Senator McGauran?

Senator McGAURAN—First of all, I want to ask you about the movie Irreversible, which you classified R. I would like to run through a few things. Do you think the violent rape and murder scene was demeaning to the victim, Mr Clark?

Mr Clark—The board, in looking at the film, decided that the scene was certainly very disturbing.

Senator McGAURAN—Demeaning to the victim?

Mr Clark—A portrayal of this type is demeaning to the victim but, in a narrative context—

Senator McGAURAN—No, that is all I wanted—in the narrow context.

Mr Clark—Yes.

Senator McGAURAN—According to the classification code, demeaning refers to ‘depiction directly or indirectly sexual in nature, which debase or appear to debase the person or character depicted’—so, it was for the victim. Is that how you took it?

Mr Clark—The board does not use the word ‘demeaning’ in its board report in relation to this film, as I recall. The actual fictional portrayal in the film could be considered demeaning, I agree with you there. But the actual film, as it is made, does not demean the victim because it is a fictional narrative that is being portrayed on film.

Senator McGAURAN—So, have you changed your mind? Is it demeaning to the victim?

Mr Clark—In the fictional sense that that is what it is, one could say that. But the board report does not talk about demeaning.

Senator McGAURAN—But it is to be taken in as part of the—

Mr Clark—It says it is high in impact

Senator McGAURAN—But it is not part of your judgment, the demeaning factor?

Mr Clark—If you were talking about a real event such as this, yes—

Senator McGAURAN—Like a documentary?

Mr Clark—But we are talking about a fictional event, not a documentary. In that context, it is not.

Senator McGAURAN—So, if it is a documentary, therefore filming real—it is demeaning.

Mr Clark—It could be.

Senator McGAURAN—It could be demeaning. But, because it is two actors, indeed, it is not demeaning. Is that what you are saying?

Mr Clark—That is correct.

Senator McGAURAN—So, I take it you believe that that rape-murder scene is not demeaning.

Mr Clark—In the context of this film, the board did not find that the scene was a demeaning portrayal, because it is a fictional portrayal in the context of a film which has high impact.

Senator McGAURAN—Most of the films, if not all, are fictional, aren’t they?

Mr Clark—The majority of public exhibition are fictional. There are occasional—

Senator McGAURAN—So your judgments are made on fiction—

CHAIR—Senator, if you could let Mr Clark at least finish his answers, I think it would be helpful to proceedings.

Senator McGAURAN—Okay.

Mr Clark—Senator, there are occasional documentaries which are features. There are occasionally films which would be refused classification which may have demeaning content in the view of the board. So a film which in the view of the board is demeaning is most likely to be refused classification.

Senator McGAURAN—All right. I will take it that you did not think that that particular scene was demeaning to the victim.

Mr Clark—The board did not.

Senator McGAURAN—The board.

Senator Ellison—I think it is clear that Mr Clark can only speak for the board. It is the board that does the classification, as I understand it, not Mr Clark.

CHAIR—Thank you, Minister.

Senator McGAURAN—Okay. He is the chief censor though. The buck stops at your desk, doesn’t it, Mr Clark?

Mr Clark—I carry responsibility of the OFLC and the classification board as chairman of the board—

Senator McGAURAN—Do you have a casting vote?

Mr Clark—At the end of the day, the board votes—

Senator McGAURAN—Do you have a casting vote?

Mr Clark—and, after that, I do have a casting vote.

Senator McGAURAN—Well, that makes you the real focus. How tight was this vote?

Mr Clark—It was not a casting vote situation. It was certainly a split decision by the board—

Senator McGAURAN—But you do not want to be too light about—

Mr Clark—Sorry, it was a unanimous decision.

Senator McGAURAN—shifting it onto the board: ‘The board makes all these decisions.’ You are the chief censor, you are the public face and you are the chairman with the casting vote. If you do not in your position—you certainly get paid more than the others, I suspect—carry some authority and responsibility, I would be surprised.

Mr Clark—The board is a board of statutory appointees who are expected to be independent in their decision making. The board cannot be directed by the chair as to how they should vote. The board will vote according to their view on the matter that is before them. Sometimes they vote unanimously, sometimes there will be a split decision. Rarely is there a situation where there is a casting vote.

Senator McGAURAN—All right. I will not go down that track. I was not meaning to. We will keep it tight, Madam Chair. Did you think that in that particular scene—I must not fall into the trap of continually repeating it—the victim was exploited?

Mr Clark—I find it difficult, because it is a fictional story that is being told. It is represented in a very violent manner.

Senator McGAURAN—Why I focus on this scene is that if you took that scene out it could well have been an MA.

Mr Clark—That is the problem—

Senator McGAURAN—I am focusing on that scene because that is where the classification came in—on that scene. I would say that was the dominant classifier—whether it was an R, an X or RC.

Mr Clark—No, I believe it would still have been an R-rated film because of the murder sequence that precedes that.

Senator McGAURAN—All right then. I did not quite get your answer. Do you think the victim was exploited?

Mr Clark—Senator, it goes back to this division between what is a real event where one could say, ‘Yes, that is the case.’ In this event you have actors who are willingly being paid to act a scene in a movie—

Senator McGAURAN—Well, we may as well revoke the whole thing if that is the case. If that is how you are going to judge it—by whether it is a documentary or a film—we may as well get rid of this.

CHAIR—Senator McGauran, let me make it quite clear.

Senator McGAURAN—It is a joke!

CHAIR—In this committee we allow witnesses to complete answers to their questions, we do not interrupt them and we proceed in an orderly fashion. If you would let Mr Clark complete the answers to his questions—

Senator McGAURAN—Offensive answers.

CHAIR—You may find the answers offensive or not, as the case may be—

Senator McGAURAN—Why don’t you put that in your report if that is your view now? Why don’t you put that in your report?

CHAIR—Mr Clark, if you would like to complete your answer to this question, Senator McGauran will ask his next question.

Mr Clark—Senator, the film runs for some 98 minutes. This particular scene, as I recall, is about nine minutes in the context of that film. Yes, it is very strong in content. The board was of the view that the actual rape scene was one where the lack of detail in it, although it was still very high in the R classification, permitted it to stay within the R classification category, particularly given the broader context of the film. If you have seen the film, the film ends on a note where you have very happy, innocent people going to a party. This makes the impact of the film even stronger in some respects, but it diminishes in the length of the film. Taking the scene out of context as a fictional narrative is not helping. Overall, yes, this film is very high in impact. Yes, two scenes in particular are in the top end of R—the board recognised that—but they can be accommodated in the R classification.

Senator McGAURAN—I am referring to the classification code here and under R-rated it specifically lists these criteria which I am pointing out to you. Here is another one. To you think that particular scene, which was dominant in the movie, depicts cruelty?

Mr Clark—It depicts a very violent rape scene.

Senator McGAURAN—Do you think it was implied?

Senator Ellison—Can I say something here which may be of assistance to everyone. Senator McGauran has now struck on the way the question should be put, and that is: what does it depict? The question is, did it demean the victim? Of course it was, as Mr Clark says, a fictional movie and the question is all of depiction—what did it depict? That might make it easier for Mr Clark to answer questions if Senator McGauran puts it in that term: did it depict this sort of thing? It is a fictional film which is depicting certain things. I think that is better wording to put in a question to Mr Clark.

Senator McGAURAN—You cannot just isolate scenes, Mr Clark, because scenes are often taken out and clipped—indeed, recut sometimes in extreme cases—to make a classification. That is a red herring you are putting up, without question. I will move on. But you can see my point. I am trying to read the code here which says ‘a high degree of exploitation’ and whether the sexual violence may be implied. It certainly was implied, wasn’t it, the scene? It was pretty obvious.

Mr Clark—Are you reading from the code? I have the code here. I think you may have the old guidelines for classification, not the code. The code says that we need to ‘take account of community concerns about depictions that condone or incite violence, particularly sexual violence; and the portrayal of a person in a demeaning manner’. They are the code words. It does not condone or incite, in my view, but it certainly is a depiction of violence, and sexual violence. Certainly I am not isolating that scene. With respect, I think you are isolating that scene and I am trying to put that scene into the context of the entire film.

Senator McGAURAN—You are trying to merge it into the greater film. Quite frankly, one scene can ruin a whole film’s classification.

Mr Clark—I agree.

Senator McGAURAN—Good. Stop trying to spread it so thin across the whole movie. It is a paramount part of the movie. But moving on, Madam Chair, many years ago I was involved in a movie called Salo, which was eventually banned.

Senator LUDWIG—Did you appear in it?

Senator McGAURAN—Pardon?

Senator LUDWIG—You said you were involved in it.

Senator McGAURAN—I was involved in getting it banned.

Senator LUDWIG—I see.

Senator McGAURAN—There was a scene of a 16-year-old girl or under raped and the movie was banned. What has changed so that Irreversible, which has I think under any viewing a worse scene, is allowed?

Mr Clark—I was not involved in the decision regarding that film, Senator, and I do not have access to the board report on that film at the moment. As you have described it, a 16-year-old girl would heighten the impact of a scene such as that. I cannot give you a detailed answer, but certainly that would be part of the consideration by the board.

Senator McGAURAN—So the 16-year-old girl’s scene is a worse scene—

Mr Clark—A child, under the age of 18, yes.

Senator McGAURAN—than what is depicted in Irreversible—a mature woman?

Mr Clark—The detail of the scene in Irreversible is not high; it is not a detailed scene. Yes, it is long, but it is not detailed. As I do not have knowledge of the other scene, I am unable to make a judgment on it.

Senator Ellison—I point out that if you had a depiction of a sexual act in that situation with a person under 18, it could well infringe the child pornography laws that we have enacted. I can get back to Senator McGauran on that if he is interested, but I think our new laws could catch a situation of that sort where a child is being abused in that fashion.

Senator McGAURAN—That is exactly why the movie was banned. Whatever laws exist now regarding the classification scheme also existed then.

Senator Ellison—I raise that to point out the current status—

Senator McGAURAN—You have told me what has changed since the banning of that one—that the difference regarding the rape scenes relates to the age of the person. Under those circumstances, the Report on the review of the operation of the 2003 guidelines for the classification of films and computer games—I forget who undertook that review—

Mr Jordana—The report was undertaken by a consultant named Kate Aisbett.

Senator McGAURAN—One of the key findings of the report was:

There is no discernible shift in the nature of permissible material within particular classification categories ...

So from the old category to the new category there has been no discernible shift.

Mr Clark—From the old classification guidelines to the new guidelines, the 2003 guidelines, her finding was that there has been no shift in the standards contained within the guidelines.

Senator McGAURAN—And you agree with that?

Mr Clark—Yes, Senator, I do.

Senator McGAURAN—Turning to another movie, 9 Songs, in the review board’s own report it is admitted that this movie has pushed all the boundaries; that it has taken the next step and broken the record. It states:

No previous movie in Australia has been classified R by the review board where it contains a prolonged, detailed scene of explicit ....

It is talking about sex, basically. So it has pushed the boundaries. To me, it has gone over the boundaries, but it has pushed the boundaries. This movie, 9 Songs, is a first. So there has been a distinct change. When a movie like Salo can be banned, with lesser degree scenes than either Irreversible or 9 Songs, it means that there has been a discernible shift in the interpretation of the code, and that the new code itself is different from the old one. Do you agree that 9 Songs is a movie like no other that has been released?

Mr Clark—Senator, because it is a decision of the Classification Review Board, I really do not want to comment on the decision. Certainly, as I understand it, the amount of actual sex contained in the film is greater than we have seen before—not a huge amount greater, but certainly there is a greater amount of actual sex in the film than in any other film before. But that is a decision regarding interpretation of the guidelines, not a change in the standards contained in the guidelines. With respect to the guidelines for sex at the R level, the words used in these guidelines and in the old guidelines are the same.

Senator McGAURAN—They are the same. So you are saying there has been a change in the interpretation of the guidelines. There has been a discernible shift.

Mr Clark—It is for the review board to interpret the guidelines. I cannot comment on that.

Senator McGAURAN—What are we to make of this report that goes to the minister, no less? It says:

There is no discernible shift in the nature of permissible material within particular classification categories ...

But there has. 9 Songs proves there has been a discernible shift. We have a first on our screens. Anyway, continuing on, if I may.

CHAIR—Senator McGauran, I want to alert you to the fact that the committee does have a very significant time constraint tonight. We have the entire estimates for the Australian Customs Service to examine this evening and we are running very short of time. Could you give the committee some indication of how long you might wish to spend with the OFLC?

Senator McGAURAN—Barring sidetracks—

CHAIR—Whose—yours or ours?

Senator McGAURAN—Probably mine—20 minutes.

CHAIR—Could we review that in 10?

Senator McGAURAN—Yes.

Senator Ellison—Perhaps we can also take some questions on notice.

CHAIR—That would be very helpful to the committee.

Senator Ellison—We want to ensure that Senator McGauran gets all his questions up.

CHAIR—Absolutely.

Senator McGAURAN—I have a letter here from the Attorney-General on a certain matter. I will read you a paragraph of it. It says:

However, Board and Review Board members, as statutory appointees, endeavour to make decisions which are as objective as possible, on behalf of the community and not as personal opinions. In other words, the boards apply what they consider to be the standards of reasonable adults in the community, rather than the personal standards of members.

Take into account that Philip Ruddock has quoted that you take community views into account. In a letter to Senator Harradine, from Minister Ruddock, he says that, in the case of 9 Songs, consumer advice was sought. Can you tell me what community opinion was sought when you reviewed the movie?

Mr Clark—Sorry, Senator, would you repeat the last phrase.

Senator McGAURAN—That community views were taken into account with regard to 9 Songs. He says that to me. He calls it consumer but in my letter he calls it community. You know what he is getting at. In fact, it is even part of your brief. Isn’t it your brief to take in community views?

Mr Clark—The classification board is broadly representative of the Australian community and, in making decisions, it plays out that role. In the ordering of the business of the board, often a board member may alone or with one or two others be in a position to have to make a decision on the classification of a product. In making a decision in that manner, they need to have regard to the views of the whole board. The whole board does have a range of views and they need to seek to reflect that in a decision. If they do not think they can do that, they will go back for a re-screen or another consideration of the product. When the classification board meets as a whole, they will more specifically articulate their own views in relation to their classification decision but they all have regard to and respect the views of the other members of the board. They have a vigorous discussion and then come to a decision so that, in making a decision, they are fulfilling the board’s statutory function, which is to be broadly representative of the Australian community. That is why they are there.

Senator McGAURAN—Am I to take it from that answer that they do assert their personal opinions?

Mr Clark—I have described to you the two ways in which they work. One is that it is a collective view of the board and, yes, in other circumstances they will have vigorous discussion. But, as I say, they have respect for it. It is not about being representative of any particular group; they just have to have regard to broad views in the community. As you appreciate, that is not going to suit everybody. Not everybody is going to be happy with those decisions.

Senator McGAURAN—I see your point but Mr Ruddock would not because he says you do not take into account your personal views—but you do bring your experience and broad views to the board I am sure. But it is clear not only from Mr Ruddock’s letter to Senator Harradine and to me with regard to 9 Songs and according to your charter that you must take into account community views, whatever way you do it.

Mr Clark—Yes, correct.

Senator McGAURAN—Specifically in relation to 9 Songs, how did you take into account community views?

Mr Clark—Senator, as I described to you, we are there because of the fact that the board members are widely experienced in the community. They participate in the community. They come from all over Australia from all sorts of geographic origins. In doing that, part of their function is to reflect the community. Therefore they do that in their day-to-day decision making. In testing our decisions, in saying, ‘Are we consistent with the community?’ we have done the community assessment panels in the past 10 months, and these are saying that the board is making decisions which are broadly consistent with community standards in terms of the focus groups done as part of that. The operational review has looked at that and there has been significant consultation there, talking with people about decisions being made by the board as to whether there has been a change in standards within the 2003 guidelines. In addition to that, the actual process for establishing the guidelines and developing the new guidelines once again involved a very extensive consultation process. So we are testing all the time. We do not just go out on one decision and say, ‘Are we consistent with community views?’ There is this ongoing process of research and finding out, ‘Are we in the right place?’ and broadly saying to us, ‘Yes you are.’

Senator McGAURAN—Then why did you, in reflecting community views, differ from the review board?

Mr Clark—That is the system, and the way the system operates—

Senator McGAURAN—They have a different outlook from the community view.

 Mr Clark—The review board makes a new decision, and from time to time the review board will make a decision at a higher classification level, the same level or a lower level. That is another test of the system and that is the function of the review board. It is a new decision. They use the same tools we use in the process.

Senator McGAURAN—They have the same community touchstone you do.

 Mr Clark—Yes, and they use the guidelines, the same code and the same sections of the act to come up with a decision. From time to time they will come up with a different decision, and that is demonstrating that the classification system is working.

Senator McGAURAN—The classification system makes it quite clear that bondage is inadmissible in a movie. Did you find that there was any bondage in 9 Songs? It is not even a point of discretion; it is out.

Mr Clark—The board came to a different view from the review board in relation to one scene in the—

Senator McGAURAN—Did you? Did your board find bondage—

CHAIR—Senator, Mr Clark is answering your question.

Mr Clark—In looking at that scene the board was of the view that this w

as a more of a role-play situation than a bondage situation. The board are very familiar with what a bondage situation is and were of a view that this was not the sort of activity that could be described as bondage in the sense of what they are accustomed to seeing in classifying or refusing classification to material that would seek to be an X-rated movie.

Senator McGAURAN—So it was role playing, not bondage?

Mr Clark—They are the words used in the board report in relation to this film.

Senator McGAURAN—The review board—the other mob—deemed it as bondage. They knew it to be.

Mr Clark—They did, but they also deemed it to be very mild as well in that context.

Senator McGAURAN—Did you read anything in the classification that it says mild bondage is all right but hard bondage is not?

Mr Clark—I did not describe it as mild bondage. That is the decision of the review board and I am not in a position to comment on a decision by the review board. I can only say that in coming to an X classification on the film 9 Songs and looking at that scene, they were of the view that it was not a serious bondage scene but more of a role-play scene.

Senator McGAURAN—So they have used their discretion about what is a serious bondage scene and what is a mild bondage scene. Though they accept that it is bondage and you do not—

Mr Clark—In the guidelines it just says:
Fetishes such as body piercing, application of substances such as candle wax, ‘golden showers’, bondage, spanking or fisting are not permitted.
The board was of the view that this was not bondage.

Senator McGAURAN—Yes, I know. But the review board was of the view that it was. Once you accept that it is, there is no room for discretion, be it mild or hard bondage or whatever you want to call it.

Mr Clark—The board was of the view that it was not bondage. If it was bondage in the view of the board, it would have been refused classification.

Senator McGAURAN—You are all getting very muddled. You do not think it is bondage and therefore it would not be refused classification on that basis. The review board thinks it is bondage and yet gives it classification. What a right muddle. Where are they? Are they here?

Mr Clark—The convener can be called, but she is not here. I would be very happy to take that on notice for a response from the convener of the Classification Review Board.

Senator McGAURAN—Chair, why isn’t there anyone here from the review board?

CHAIR—Would you like that taken on notice, Senator McGauran?

Senator McGAURAN—To whom?

CHAIR—To the convener of the review board.

Senator McGAURAN—To answer that question?

CHAIR—Yes.

Senator McGAURAN—It was a statement.

Senator LUDWIG—You cannot make a statement.

CHAIR—We actually deal in questions and answers here.

Senator McGAURAN—You are all muddled. All right, let her answer this: why are you all so muddled?

CHAIR—I do not think that is the question. The question is a specific question you were asking about 9Songs. That was my understanding.

Senator McGAURAN—All right. If she can possibly answer that, I would appreciate it.

Senator Ellison—We will take that on notice.

Senator McGAURAN—On 14 February Senator Harradine asked you:
Do you take the pornographic intent into consideration?
You answered:
If the intent is purely pornographic I am sure that the board will apply the guidelines very rigidly.
So if the intent is pornographic, you will certainly take that into account. Did you find the movie pornographic?

Mr Clark—Do you mean 9 Songs?

Senator McGAURAN—Yes.

Mr Clark—If I can go to the same estimates, I replied to Senator Harradine that the guidelines do not actually use the word ‘pornographic’ and nor does the code. Sexually explicit intent would place the film into an X classification, which is what the board did.

Senator McGAURAN—I am only quoting you back. You said:
If the intent is purely pornographic I am sure that the board will apply the guidelines very rigidly.

Mr Clark—And then I clarified that. I said that it does not use the word ‘pornographic’ in any of the instruments or tools that the board uses. That word does not appear. So the board is classifying it X in the sense that it is a special classification with sexually explicit material in it. That word is not used anywhere in the classification system.

Senator McGAURAN—So you do not take that into account.

Mr Clark—No, the X classification says:

... This classification category applies only to films. This classification is a special and legally restricted category which contains only sexually explicit material. That is material which contains real depictions of actual sexual intercourse and other sexual activity between consenting adults.

Senator McGAURAN—Aren’t you just playing with words? You have told us how you keep in touch with the community, and that is very good—and that, by the way, was a result of the movie Salo. It made many changes to the review board—although I despair that they are all unwinding now. The community, whom you are meant to refer to from time to time, know what pornographic means. They know the line, albeit that it is different for each person—there is a line and you know it when you see it.

Senator McGAURAN—I have not finished.

Mr Clark—I apologise.

Senator McGAURAN—It is my turn! I know you are just playing with words. You are hiding behind the fact that it is not classified, but in real life you have to take that into account, because every criticism that I have picked up—and critics are well known for their liberal views when reviewing films at the best of times—

Senator Ellison—If we could just get to the nub of the question.

CHAIR—We are very pressed for time, Senator McGauran.

Senator McGAURAN—In every critic’s review that I pick up, they use that term. You are trying to hide behind ‘sexually explicit’, but go out to the community and put those words to them and they would not know what you meant. Say ‘pornographic’ and they are with you. Every critic calls it pornographic or question whether or not it is. I have all the critics’ reviews here, from the Age and the Financial Review, claiming it is just pornographic and should not be exhibited. The Australian says it is pornographic—

CHAIR—Your actual question, Senator McGauran?

Senator McGAURAN—I have to give this a bit of a backdrop. The Herald-Sun asks is it not pornographic—

CHAIR—We are getting your drift. What is your actual question?

Senator McGAURAN—and there is a feature in the Age. So that is the term they use. If you want to stay in touch with the community, know what that word means and where that line is drawn. You use one term; the public identify with another, including the critics—and, may I add, the review board. The review board thought it was pornographic, ‘mildly pornographic’. But if it is pornographic it should not be shown. You use the term ‘sexually explicit’; we use ‘pornographic’.

Mr Clark—If I take the common word—and I agree with you, ‘porn’ is the more frequently used descriptor—you are perfectly right: yes, that is the case. I am not playing with words. They are the actual words that we have to use in coming to classification decisions. The board, if you like, formed a view that 9 Songs should be classified X because it contains sexually explicit material which, yes, the press are commonly referring to as porn. They are not using that word but the words that are here. They are not words to hide behind but words that they are required to have regard to. That is the classification system. The Classification Review Board looked at that and considered that the amount of sex in the film could be accommodated by an R rating. The reasons for their decision on 9 Songs are in their report. If they choose to use the word that is commonly used, there is nothing wrong with that, but it is not a word that appears in the classification system.

Senator McGAURAN—In short, you did not believe the movie was pornographic—

Mr Clark—I do not express personal views about this.

Senator McGAURAN—The board did not believe it was pornographic, yet they would not classify the movie. The review board thought it was pornographic, yet they classified the movie. What a muddle!

Mr Clark—If I apply the word ‘pornographic’ then obviously that is consistent with the board coming to an X decision. The reasons for the Classification Review Board’s decision are available. That is their justification for coming to a decision which shows the review board and the classification system working. A lot of people will disagree with that decision, but that is the decision that the review board have made. I would also add that there is a lot of material that is simulated sex which is classified R. It is not real but it is simulated sex, which is classified R—and that could also be described as pornographic.

Senator McGAURAN—You have to take into account, according to the classification, the prolonged nature of any offending scene or any scene at all. There are two questions here. The movie is a cheap 70 minutes long and 35 minutes of it, according to the critics, is sex. The real offending scene breaks a record, being the most prolonged of its kind. In the past you have always relied on a fleeting scene—you have used the word ‘fleeting’ quite often, or ‘not prolonged’, in any other reports you have on films. But here we have got a record: it is quite a long scene, with more than half the movie itself being one big sex scene.

What is the question? There has been no other movie with such a prolonged, intimate sex scene. Firstly, I am trying to establish that this movie is groundbreaking. And, secondly, where do you draw the line between ‘fleeting’ and ‘prolonged’, when half the movie—35 minutes—is taken up with it?

Mr Clark—The actual sex scenes in the film do not add up to 35 minutes. I believe that was a misreport in the press. There are two longer scenes of actual sex. There is a lot of what is, for all intents and purposes, simulated sex. There are two longer scenes of actual sex—one of approximately one minute and one of approximately two minutes—and several briefer depictions of actual sex identified in the review board’s reasons for its decision. It is not the 30 minutes described in the media, but there are those particular scenes that have been described. There is quite a lot of other simulated sexual activity but not detailed, explicit sexual activity.

Senator McGAURAN—But the true offending scene is not fleeting, is it? For the first time it is not.

Mr Clark—That would be the one of approximately one minute and one of approximately two minutes.

CHAIR—Senator McGauran, in light of the circumstances in which the committee finds itself, is it possible for you to put your further questions on notice, as the minister suggested?

Senator McGAURAN—No, but I only have two more—

CHAIR—I see.

Senator McGAURAN—providing I do not get sidetracked. Thank you for your patience. Another criterion you have to take into account is the type of audience you expect to see this movie. That is what the review board took into account too, as they said. In rejecting this movie, from your level, what type of audience did you think would be seeing this movie?

Mr Clark—The film is restricted to adults over the age of 18. The film would probably have a limited appeal in terms of the broader community. I would not want to make a judgment about those members of the community who may or may not choose to see the film, but I think that the amount of time it has been on exhibition would indicate that not a vast number in the community have taken the opportunity to view the film.

Senator McGAURAN—You cannot speak for the review board, can you.

Mr Clark—No.

Senator McGAURAN—Would your board take into account where the movie is going to be shown—in which theatres?

Mr Clark—The board takes that into account in coming to a decision. In my board’s decision, it was X18+, which means it would not be shown in cinemas; it would only be available from the ACT and the Northern Territory.

Senator McGAURAN—The review board took that criterion into account too. The movie is showing in one place in Collins Street, which is pretty mainstream, and on Fitzroy Street, St Kilda—mainstream again.

Mr Clark—That reflects the fact that the film now has an R18+ rating and it is quite permissible for it to be shown in public exhibition cinemas. But, as I say, from the amount of time that the film has been on the screens, not a vast proportion of the Australian adult community has actually gone to see the film.

Senator McGAURAN—Other than that it is an R rated movie for adults over 18, if you take into account where it is showing—which theatres it is being shown in—it is being shown in mainstream theatres.

Mr Clark—That is correct. That is consistent with the rating.

Senator McGAURAN—Heaven knows what the review board was ever taking into account. If it is being shown in the mainstream theatres, they are taking nothing into account, other than the rating.

Mr Clark—The rating is consistent with the ratings in other jurisdictions around the world. The film has been shown in similar circumstances in many places.

Senator McGAURAN—Of course, for someone who does not represent the review board, you do a good job defending them. This is my last question. No, I have two more.

CHAIR—One.

Senator McGAURAN—All right—I will make it a big one.

CHAIR—How will I tell the difference?

Senator McGAURAN—Mr Clark, you released the movie Irreversible with the offending scene in it and you issued it on artistic merit.

Mr Clark—No.

Senator McGAURAN—You did not?

Mr Clark—That is one of many criteria the board applies, so it was not a decision made solely on artistic merit. That is one of the things the board must consider in coming to a decision every time it makes a decision.

Senator McGAURAN—I put it to you that it was the overriding one. It was mutually exclusive to all the others. I was establishing in my earlier questioning about the meaning and all those other factors. They were so black and white you had to overcome them with some esoteric or subjective judgment. That was artistic merit, which has now become the overriding factor in the classification system. However, with Nine Songs they are a lot clearer. They admit it is pornographic—they admit this and that and everything else I have been speaking about—but it has artistic merit, which overrides all the classifications. So aren’t you just cherry-picking now? There is no holistic look at the classification system. In fact, you may as well get rid of the detailed classification system because you are now just cherry-picking to the mutual exclusion of everything else, and artistic merit is coming to the forefront here. I also put it to you—and it is quite obvious—that you and the higher board run to this artistic merit excuse every time you are caught with your backs to the wall. It has become the catch-cry to diminish the existing classification. I put it to you that Reid v Director-General of Social Services, Administrative Appeals Tribunal, 1981, states that in exercising the discretion under the relevant section of the act:

... the decision-maker must have regard to whether, by exercising the discretion in a particular case, he will be achieving or frustrating ends or objects which are conformable with the scope and purpose of the Social Services Act 1947 ...

The act specifies the code and classification—words such as ‘demeaning’, ‘exploitation’ et cetera.

CHAIR—Senator McGauran—

Senator McGAURAN—You do not take them into account; you take artistic merit into account.

CHAIR—Senator McGauran, I am going to ask Mr Clark for a response and that will conclude his part of the examination.

Senator McGAURAN—Quite frankly, you would not hold up an Administrative Appeals Tribunal—

Senator Ellison—Madam Chair, we need the question, not the statement. If we can have the question, and if there are a series of them perhaps we can take them on notice—

CHAIR—And examine the Hansard and assess what the questions were.

Senator Ellison—and Mr Clark can have an opportunity to get back in detail to Senator McGauran.

CHAIR—Would the minister’s suggestion be satisfactory, Senator McGauran?

Mr Clark—I think the simple answer is no.

CHAIR—Mr Clark, would you assist the committee by examining the Hansard and extracting the questions from Senator McGauran’s statement and then responding to them?

Mr Clark—I will assist the committee—

CHAIR—Thank you very much. Senator McGauran, will the minister’s suggestion assist you? Thank you. Mr Clark and Mr Hunt, we appreciate your assistance to the committee this evening.

Andrew McIntosh

Vic State 
Member of the Legislative Assembly
Liberal Party
Electorate: Kew

The Victorian Shadow Attorney-General Andrew McIntosh (who claims not to believe in censorship) called for the game HITMAN: CONTRACTS to be banned.

Quoted from:
Demand to ban thrill-kill game.  Melbourne Herald-Sun 19.07.04 

"This is a matter where you would think the Premier would stand up and call for a voluntary ban,"
"It is up to large corporations like Blockbuster and anybody else who is hoping to distribute this game to show some sort of responsibility.
"If you glorify a highly illegal activity in an environment of 27 gangland killings, where do you draw the line?"

Bruce Mildenhall

Vic State 
Member of the Legislative Assembely
Australian Labor Party
Electorate: Footscray

Ridiculed a petition calling for the legalisation of X18+ in Victoria.

Gordon Moyes

NSW State
Member of the Legislative Council
Member of Christian Democratic Party (Fred Nile Group)

In May 2005 he voted against Peter Breen's CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) ENFORCEMENT AMENDMENT (X 18+ FILMS) BILL that would have seen X18+ legalised in NSW.

NSW Legislative Council Hansard 
CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) ENFORCEMENT AMENDMENT (X 18+ FILMS) BILL
Page: 15648

Second Reading 

Debate resumed from 3 March 2005. 

Given the nature of the debate and my position as a Christian leader in the community with a charge to represent the Christian voice of this State, I cannot leave this debate without putting on the record arguments against the sale and use of X18+ rated and other unclassified material. Many are familiar with the arguments against the sale and use of such material. In processing my arguments, however, I would like to draw the attention of the House to the findings of the United States Attorney General's Commission on Pornography. 

The commission was set up in the 1980s to review the available empirical evidence on the relationship between exposure to pornographic material and antisocial behaviour. The commission concluded that there is a causal relationship between the exposure to many forms of pornography and several antisocial effects, including increased levels of violence against women. As a result of these findings, the commission called for a more strict enforcement of existing obscenity laws. In the same vein we would also call for a more strict enforcement of the current pornographic laws.

***

NSW Legislative Council Hansard
8 March 2006
Subjects: Education; Films; Censorship 
Speakers: Moyes Reverend The Hon Dr Gordon; Hatzistergos The Hon John 
Speech Type: QWN; Questions Without Notice 
Commentary: Answered on 2 May 2006 by John Hatzistergos

PRIMARY SCHOOLS M15+ FILMS PRESENTATION 
Page: 21186

Reverend the Hon. Dr GORDON MOYES: I ask the Minister for Health, representing the Minister for Education and Training, a question without notice. Is the Minister aware of conflicting policies on the presentation of M15+ films to primary school students? In particular, is the Minister aware that the latest excursion policy released in 2004 allows for M15+ films to be shown to primary school students while a more detailed memorandum to principals, entitled "Use of Videos in Schools", that currently remains in force, expressly forbids showing M15+ films to under-age children? Is the Minister aware that the conflicting policies have created much angst and some confusion between parents and principals? What is the correct policy on showing M15+ films to primary schoolchildren, most of them under 11 years of age, when the law says they must be restricted to people over the age of 15 years? What will the Minister do to correct the discrepancy?

The Hon. JOHN HATZISTERGOS: The last time I visited this issue was when I was Minister for Justice and looking into what ratings we gave prisoners in respect of the videos they saw in prison. I cannot say that I am familiar with the school policy, but I will take the question on notice and obtain an answer from the Minister for Education and Training.

NSW Legislative Council Hansard (Proof) 
Extract from Transcript of Hansard 02/05/2006 (Article No.40)

PRIMARY SCHOOLS M15+ FILMS PRESENTATION Page: 29 

On 8 March 2006 Reverend the Hon. Dr Gordon Moyes asked the Minister for Health, representing the Minister for Education and Training, a question without notice regarding primary schools M15+ film presentations. The Minister for Education and Training provided the following response:

Since the Use of Video in Schools Memorandum was issued in 1998, the Office of Film and Literature Classification has changed its classifications. However, the meaning of the classification markings has not changed. The correspondence is still there with the G, PG and M ratings but the MA and R are reinforced as legally restricted with the MA15+ and R18+ additions to the codes.

The Memorandum to Principals, Use of Videos in Schools is the current policy document in relation to the viewing of films, including videos and DVDs.

The Memorandum to Principals, Use of Videos in Schools states explicitly that films classified as M or MA (MA15+) should only be provided for students who are 15 years and over and parents should be informed in writing before a video rated M or MA (MA15+) is shown and provided with the opportunity to withdraw their child from the viewing.

Material rated R (R18+) is not to be shown to students in schools under any circumstances.

The Excursion Policy (2004) relates to all educational excursions and includes a section 6.1.2 Film Screenings and Live Performances. This section states explicitly that students should not attend R18+ (R) classifications and that the MA15+ (MA) classification is legally restricted.

This section also states that parents and caregivers must be informed of the classification of the film or live performance to be viewed as part of the excursion and provided with the opportunity to withdraw their child.

The Excursion Policy (2004) does not explicitly refer to an M rated live performance or film screenings but this document should be read in conjunction with the policy referred to in the Memorandum to Principals, Use of Video in Schools because the Excursion Policy does not supersede the policy contained in the memorandum.

No primary age students should be shown films or live screenings that are rated M or MA15+ (MA).

John Murray

NSW Federal 
Member of the House of Reps
Labor Party
Electorate: Lowe

Pushes the Religious Right agenda whenever possible.

QUESTIONS IN WRITING: Office of Film and Literature Classification

Date: 12 May, 2005
Database: House Hansard
Questioner: Murphy, John, MP (Lowe, ALP, Opposition)
Responder: Ruddock, Philip, MP (Berowra, Attorney-General, LP)
Page: 125
Question no: 904
Type : Question
Main Committee: No
Proof: Yes
Source: House
Context: Questions in Writing

Mr Murphy (Lowe) asked the Attorney-General, in writing, on 17 March 2005:

(1) Who are the members of the Classification Board in the Office of Film and Literature Classification (OFLC).

(2) Who are the members of the Classification Review Board of the OFLC.

(3) Can he explain how these persons are representative of a cross section of Australian Society; if not, why not.

(4) What is the relationship between the 2003 Guidelines for the Classification of Films and Computer Games and the Classification Code.

(5) How has he ensured that the intent of the legislation providing for the classification of film and literature (ie. That the Classification Board’s and the Classification Review Board’s decisions reflect contemporary Australian community standards) is reflected in the Boards’ decisions.

(6) Can a member of the public initiate a review of a classification decision if they feel that it does not reflect contemporary community standards, if not, why not.

***

Date: 09 August, 2005 
Database: House Hansard 
Questioner: Murphy, John, MP (Lowe, ALP, Opposition) Responder: Ruddock, Philip, MP (Berowra, Attorney-General, LP) 
Page: 82 
Proof: Yes 
Question_no: 1403 
Source: House 
Type: Question 
Context: Questions in Writing 
Main Committee: No

Question Mr Murphy (Lowe) asked the Attorney-General, in writing, on 23 May 2005: 

(1) Can he confirm that the Classification Review Board has reviewed the decision of the Classification Board in respect of the film 9 Songs from X18+ to R18+, permitting explicit sex scenes to be viewed in mainstream theatres throughout Australia, as reported in the article titled ‘Uncomfortable position’ in The Australian on 4 May 2005; if so, can he explain the basis of this classification decision. 

(2) Does the classification of 9 Songs as R18+ conform to the standards for the R18+ classification in the (a) Classification Code and (b) Classification Guidelines. 

(3) Do all films depicting explicit sex scenes subject to assessment by the Office of Film and Literature Classification now fall within the R18+ category. 

(4) What action will he take to prevent explicit sex scenes being screened in mainstream theatres. 

(5) What is the current composition of the Classification Review Board. 

(6) What is the statutory number of positions permitted on the (a) Classification Board and (b) Classification Review Board. 

(7) Are churches, young Australians, elderly Australians and other persons represented on the (a) Classification Board and (b) Classification Review Board. 

(8) What is the background of each of the eight members of the Classification Board and in which industries have they worked. 

(9) Will he take action to broaden the representation on the (a) Classification Board and (b) Classification Review Board so that churches, consumer groups, the young, older Australians and other persons other than those currently on the board, are represented; if so, what; if not; why not. 

***

2004-2005-2006
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NOTICE PAPER
(www.aph.gov.au/house/info/notpaper)
No. 90
TUESDAY, 28 MARCH 2006
The House meets at 2 p.m.

QUESTIONS IN WRITING
28 March 2006

*3255 MR MURPHY: To ask the Attorney-General—

(1) Is he aware of reports that SBS is planning to broadcast an edition of South Park which depicts the Blessed Virgin Mary, a person held Sacred and Venerable to the vast majority of Christian adherents, menstruating before His Holiness Pope Benedict XVI.

(2) Has he read the article in Volume 4307 of the Catholic Weekly on 26 March 2006 titled ‘Ridicule sparks call for blasphemy law review’ in which it is reported that soul music veteran, Isaac Hayes, the voice of the character Chef on the satiric TV cartoon, South Park, has recently left the show citing its inappropriate ridicule of religion, and in particular, Christianity.

(3) Has the Office of Film and Literature Classification classified the episode of South Park; if so, what classification did it receive; if not, when will it be classified.

(4) Will he act to ensure that the episode of South Park is not broadcast and is refused classification on the grounds that such depictions are highly offensive to a significant proportion of Australians; if so, when; if not, why not.

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