Senate Estimates and Unclassified Porn
October 23, 2009
This week saw Donald McDonald, the Director of the Classification Board, down in Canberra for Senate Estimates.
Back in May he was questioned by the Tasmanian Liberal Senator Guy Barnett regarding the availability of unclassified porn magazines. This week's session continued more or less on the same track. Despite his best efforts Donald McDonald is having little luck with calling in these titles for rating.
This whole situation stems from an anti-porn campaign launched in September 2008 by a group called Kids Free 2B Kids who have had success in pressuring Coles and BP to drop adult magazines.
It was taken up a year ago in the October 2008 Senate Estimates when Julian McGauran and Barnaby Joyce initially questioned the Classification Board.
One of the revelations to come out in this week's discussion was that a working group is considering an option of merging the Category 1 (softcore) and Category 2 (hardcore) magazine ratings into one. All adult magazines classified under this new rating would then be restricted to sex shops. This would mean it would be illegal to sell any adult magazines in newsagents. Should this proposal be implemented then the anti-porn campaign of Kids Free 2B Kids would have succeeded beyond their wildest dreams.
Donald McDonald's Six Month Review
Here is the opening statement from Donald McDonald, the Director of the Classification Board in which he reviews the main points of interest that have occurred since the May 2009 Senate Estimates.
LEGAL AND CONSTITUTIONAL LEGISLATION
COMMITTEE
19/10/2009
ATTORNEY-GENERAL’S PORTFOLIO
Classification Review Board
The Board's Workload
Mr D McDonald —Thank you for the opportunity to make an opening statement to give you at the outset some up-to-date information about the board’s workload and focus since the May 2009 committee hearings. The conclusion of the 2008-09 financial year saw the board’s workload remain steady despite the global financial crisis. Interestingly enough, it would seem that, although there were some sharp variations throughout the year, overall no discernible impact was apparent. In 2008-09 the board received 7,036 applications. That figure includes applications for classifying 4,792 films, 1,095 computer games and 197 publications. Consistent with recent years, the viewing time per application increased. This means that, although the total quantity of applications decreased slightly, the amount of time the board is required to devote to each application has increased. Primarily this is due to the continued trend of the release of boxed sets of television and other DVD material.
DVD and TV Authorised assessor scheme
Mr D McDonald —On 1 July 2009 a new industry based scheme commenced, joining the existing authorised assessor scheme for computer games, the additional content assessor scheme for DVDs and the authorised television series assessor scheme. The new scheme, known as the advertising scheme, means industry representatives can be trained and authorised as assessors. Once this has been done, they are able to assess the likely classification of an unclassified film or computer game so that it can be advertised before it is classified by the board. The scheme comes with appropriate training courses delivered by the Attorney-General’s Department and with built-in safeguards.
Unclassified adult magazines
Mr D McDonald —Since May the board has continued its focus on investigating adult publications. I know these continue to be of concern to some community members as well as to some senators. In 2008-09 the board investigated 127 publications. These investigations resulted in 42 revocations and 48 call-in notices. In the current year, to 12 October the board has investigated or is investigating 32 publications. Nine audits have been conducted; six passed the audit, two have been revoked and another is in the process of being revoked. Twenty-three call-in notices have been issued. In 2008-09 I called in 386 unclassified films for classification, and in the first quarter of this financial year the figures are already 441. I also called in one computer game and revoked the classification of another in 2008-09. I should make it clear that none of the call-in notices for adult publications have been complied with, and the majority of film call-ins have not been complied with either. However, in each and every instance the Attorney-General’s Department notifies the relevant law enforcement agency of this failure to comply. I will, however, continue to use my call-in powers in circumstances where I believe it is warranted.
WORLD OF WARCRAFT and online games
Mr D McDonald —The committee may also be interested to note that the board has recently classified the wholly online game World of Warcraft. While this is not the first online game to be classified by the board, World of Warcraft is arguably the most popular online game in the world, and the fact that it was not classified attracted industry and media interest. The classification act does not exclude online games from the definition of computer games. The board must classify a computer game, including one with online content, upon receipt of a valid application.
Rating mobile games
Mr D McDonald —On another aspect of computer games, I recently wrote to the minister regarding my concern that some so-called mobile phone applications, which can be purchased online or either downloaded to mobile phones or played online via mobile phone access, are not being submitted to the board for classification.
There is one last matter to which I would like to draw your attention. In recent times I have become increasingly concerned about the need to do more to better educate the community about the significance of consumer advice that is issued with most classifications. The classification act requires the board to provide consumer advice about the content of films and computer games it classifies, except at the G level. For G-rated products, consumer advice is optional. The aim of consumer advice is to help consumers make informed choices about what they, or minors in their care, might want to see. During 2008-09, the board took steps to provide greater consistency in decision making about consumer advice by trying, where possible, to use consistent terminology for consumer advice. Despite this, a couple of recent cases in particular have confirmed in my mind the need to do more.
BRUNO and LAND OF THE LOST complaints
Mr D McDonald —The board received many complaints about the classification of the film Bruno at the MA 15+ level. This was despite the fact that the consumer advice for the film left little to the imagination. It was ‘strong sex scenes and nudity, crude humour and course language’. Virtually all of the complaints evidenced an unfamiliarity with the advice in question. Similarly, the film Land of the Lost attracted a large number of complaints. The consumer advice issued with this film was ‘drug references, sexual references, mild violence and coarse language’. Many of the complaints again demonstrated that the complainant was not aware of this additional guidance about the film’s content. The board is working with the Attorney-General’s Department to examine what more can be done to provide better access to consumer advice prior to the purchase of tickets for a film as well as at the point of sale itself. I will update senators about this matter at the next estimates hearing.
Honestly, we are trying our best
Mr D McDonald —Finally, I would like to reiterate that, because of the cooperative nature of the national classification scheme, it is not the board’s role to enforce classification laws. Its primary role remains to classify the many thousands of publications, films and computer games submitted to it every year. However, I note that the department has improved communication lines with enforcement authorities at the state, territory and Commonwealth levels. That said, I would like to reassure senators that the board takes its responsibility very seriously and will continue to do everything in its power to increase compliance with Australia’s classification laws and protect the integrity of the classification scheme.
Adult Magazine Crackdown
Here is the main part of the estimates hearing which covers the subject of unclassified pornography.
Apart from the Tasmanian Liberal Senator Guy Barnett, the other speakers were.
Mr Julian Yates, Acting First Assistant Secretary, Territories and
Information Law Division
Ms Jane Fitzgerald Assistant Secretary, Classification Operations Branch
Ms Helen Daniels, Assistant Secretary, Copyright and Classification Policy
Branch
LEGAL AND CONSTITUTIONAL LEGISLATION
COMMITTEE
19/10/2009
ATTORNEY-GENERAL’S PORTFOLIO
Classification Review Board
Call-in requests being ignored
ACTING CHAIR—Mr McDonald, you indicated that you had used your call-in powers on a number of occasions and on none of those occasions had they been complied with, and you have then referred those matters off to the relevant law enforcement agencies. You did not give us any information about what action you believed has or has not been taken or what feedback you received from those agencies.
Mr McDonald—The department may be able to better answer that question, Senator. I am aware of some instances of police response to that, but I will defer to the department for advice.
ACTING CHAIR—I am happy to hear from them, but maybe you could just take me through the process. I understand that you would be the one making the formal complaint—
Mr D McDonald —Yes.
ACTING CHAIR—And then is that the end of your involvement and the department would then take over, or would you as the complainant have an ongoing role in that?
Mr D McDonald—I can take an interest in, say, a publication or a film, because it will be drawn to my attention in various ways. One, it may very well be by a complaint from a member of the public. That is an extremely valuable source of information. Two, it may be the department’s own officers. Their classification liaison service officers may encounter some product in the pursuit of their duties. Or I may simply become aware of something myself, or some other board member.
If I have reasonable grounds, I will call in that product, and that begins the legal process in relation to it. The purpose of calling it in is to classify it. If they do not submit to that call-in notice then that is another step in the legal process. If they fail to do that, that may well be an offence, and that is why the police, mostly, or some other department in some states, then are informed of that.
ACTING CHAIR —Is that the end of your role?
Mr D McDonald —That is the end of my role, unless they finally succeed in making an application, and then we classify.
ACTING CHAIR —The department can tell us what they know about what has happened after the complaint has been made about failure to comply with the call-in notice.
Mr Yates—Regarding action for enforcement, that is referred to the relevant state and territory police service. In terms of the details, I might refer to Jane Fitzgerald, who has more detailed knowledge.
Ms Fitzgerald—In relation to call-ins, in particular, if there is non-compliance with the call-in notice the department refers each and every instance of that to the relevant enforcement body. What they then do as a consequence is that they do not report that back to us as a Commonwealth agency, but we keep informal contact with the relevant agency. They may require, for instance, some further information or they may come back to us and ask for further details about other matters relating to that particular potential offender. For instance, over the past few months we have had dealings with New South Wales Police, Surry Hills local area command, about the sale of unclassified publications through local retailers there. We have had dealings with Miranda local area command in August 2009 about the sale of unclassified film and the sale of X rated films, which are of course illegal to be sold in New South Wales. We have had dealings at the end of 2008 with the Victoria police and Bendigo police about the sale of unclassified films. It is not part of the scheme that the law enforcement agency reports back to the Commonwealth Attorney-General’s Department. We have been looking at ways that we can improve our liaison with police so that we are able to get a better understanding of where any potential law enforcement action is up to as a consequence of action the board may have taken or indeed the department may have taken through the Classification Liaison Scheme.
441 call-ins and no response
Senator BARNETT —Mr McDonald, have you prepared an annual report and submitted it?
Mr D McDonald —We have prepared an annual report.
Senator BARNETT —When was it submitted to the department?
Mr D McDonald —By the due date. I would imagine it will soon be tabled, but the department may be able to answer that.
Senator BARNETT —On what date was it submitted to the department?
Mr D McDonald —Mid September—I think 12 September.
Senator BARNETT —Could you take it on notice to confirm that date?
Mr D McDonald —Yes.
Senator BARNETT —Mr McDonald, much of what you said in your opening remarks I would assume is in your annual report. Would that be correct?
Mr D McDonald—Much of what I said to you is actually more up to date than the annual report. I sought to put some focus on what had happened in this current year.
Senator BARNETT —Absolutely. But the annual report would include information to the date to which you have it?
Mr D McDonald —Absolutely, yes.
Senator BARNETT—So the department has been sitting on that report since that time and what you have delivered to us today verbally is confirmation that we have a system error where into the community is being put pornography, filth, offensive material, which you have called in with, in the case of 368 call ins, nil response and then you indicated 441 call ins and another nil response. This material is getting into the community with no comeback. We have a system error. At estimates in May I said to you and to the department that we have a system failure. Yet it seems that as at today we have not got our systems together and we are not on top of it because this filth is still out there in the community. I know you have a certain role and so I am not pointing the finger directly at you because you have certain functions, but I would like your response as to whether you believe we have a system failure with this material. It seems to be getting worse or better in terms of the figures that you provided to us today. Can we start there? Are the figures getting worse not better and do you believe there is a system failure?
Mr D McDonald—Firstly, as to the figures and the apparent growth in them it may be that I am more aggressive in my call in than some of my predecessors. Calling in is I think in the minds of some people an administrative pain in the neck, you have to put advertisements in the Commonwealth Gazette and all the rest of it. As far as I am concerned it is the only legal power available to me, so it may look as though it is ineffective, but I have no other way to start the process. Whether we have a system failure I think the ‘we’ has to be then viewed as all of the states and territories and the Commonwealth. Ours is not merely a cooperative legislation that we operate under, but it is legislation that requires cooperation at the enforcement end that may well be and nearly always is a step away from the minister who is responsible at state or territory level for censorship matters. So the ‘we’ is really the society and it certainly is the states and territories and the Commonwealth together if your proposition is accurate. As a proportion of what we do, there is a high level of compliance but of course at the extreme end people who are producing material that is likely to be refused classification are therefore unlikely to willingly enter the system.
Senator BARNETT —And there is a high level of non-compliance.
ACTING CHAIR—That is a question I was going to ask. Would you say nearly exclusively that the material you are calling in could not be classified.
Mr D McDonald—If I can give you an example in respect of the several hundred films that I have called in this year our knowledge of those is from a very elaborate colour brochure. Certainly from the covers of those DVDs that are reproduced in that brochure I would say that overwhelmingly they would be likely to be refused classification or at the very least they would be X18+.
Senator BARNETT—Just to focus on the call ins for the moment and your role regarding the call ins, how does that come about? Can you confirm with us exactly how it comes about that you actually undertake an effort to call in these publications or films and is it based primarily on community feedback? That is what I would like to know.
Mr D McDonald—It is a mixture of community feedback and knowledge that comes via the departmental officers. It would be fair to say that in respect of the films it is overwhelmingly departmental information, because in the discharge of their duties those officers visit premises where brochures or leaflets are available.
Senator BARNETT —Is that their job?
Mr D McDonald—They have a range of duties. As for publications, it would probably be about half public complaints and half reports by departmental officers.
Senator BARNETT—This is the problem. Part of the system error is that you have to rely on community feedback from parents who are appalled by the material that is before them in the public arena, whether it is in a newsagent, a petrol station or some bookshop. They complain, you get those complaints—and who knows how long it takes before you then act on it and do a call-in—and then there is a noncompliance. Is that basically what happens?
Mr D McDonald—You say: who knows how long before I act on it? I act on it very promptly. The ‘who knows’ could well apply to: who knows how long the product has been out in the marketplace? But we act very promptly.
ACTING CHAIR —Are there any sanctions against legitimate businesses for selling unclassified material, and what process are you involved in?
Mr D McDonald —That would vary from state to state.
ACTING CHAIR —Is that a role that you are involved in?
Mr D McDonald —No.
Senator BARNETT—That is part of the system error, in my view. You have no role in assessing that at all. You leave it up to the law enforcement agencies of each state and territory.
Mr D McDonald —The department may well wish to add to that.
Bob Debus urges State law enforcement to act
Senator BARNETT—Let us move on to the letters from the Hon. Bob Debus to all the law enforcement agencies on 4 February that were kindly tabled at the last estimates. I have the letters here to New South Wales Police Commissioner Mick Keelty and other state and federal police commissioners and law enforcement agencies. You are aware of the letters I am referring to?
Mr Yates —I believe so.
Senator BARNETT —They refer to the very legitimate concerns of the minister. You have seen the letters, Mr McDonald?
Mr D McDonald —Yes.
Senator BARNETT —The fourth paragraph says:
I understand that after recent audits, the Classification Board has revoked number of serial publication declarations as many of the titles audited contain material that Board considered to be Refused Classification. Other audited titles, although marked as Category 1 restricted, were found to be unclassified.
Then it talks about you doing the call-ins. The last sentence on page 1 says:
This low level of compliance with classification enforcement laws by retailers and distributors of adult publications is a matter of serious concern. As one means to increase compliance I believe it is important that police—
et cetera. It goes on:
I seek your assistance in achieving this.
So the minister put out a call to the law enforcement agencies. The letter goes on to mention the Classification Liaison Scheme, and the minister calls for action and involvement and notes that a working group has been set up. Can you please advise of the response to those letters from the various law enforcement agencies?
Senator Wong —Perhaps I can assist. I am advised of a range of responses received. I would like to take on notice whether or not we provide those. I think that the minister would like to consider that. It obviously involves correspondence in relation to compliance and other matters from state and territory governments. In the circumstances I would suggest it would be appropriate for us to ensure there was some consultation with them. I am happy to take the issue on notice.
Senator BARNETT —Thank you. Can you advise that you have received a response from each and every state and territory and, if so, when?
Senator Wong—I cannot. The advice I have in front of me would suggest that the majority of states and territories have responded, but I do not believe it is all at this point.
Senator BARNETT —Can you nominate which states or territories have not responded?
Senator Wong—The advice in front of me suggests that as at the date of this advice we were awaiting a response from the New South Wales Minister for Police but it is possible that that has come in since the date this advice was prepared.
Senator BARNETT —What is the date of your advice?
Senator Wong—I do not have that in front of me, but I am just indicating that. It may have occurred since. Only because I assume this was prepared for the estimates hearings, so I do not have advice about the date.
Senator BARNETT —So very recently. But you have received a response from the other states and territories law enforcement agencies?
Senator Wong —That is correct.
Senator BARNETT —Can you advise the thrust of that response?
Senator Wong—With respect that is actually going to the issue I have taken on notice. I have indicated that the government is willing to consider your request. It is not unusual, particularly with letters from other parties, for the government to consider and possibly consult with those parties. I do not propose to go to the content of the letters in the absence of that process being undertaken.
Category 1 and 2 Ratings may be merged
Senator BARNETT—Let us take another route. What progress has been made by the Commonwealth state and territory compliance and enforcement working party which is developing proposals to improve compliance with the National Classification Scheme for offensive publications and films?
Mr Yates —I will just ask Helen Daniels to come and provide you with some information on that one.
Ms Daniels—The working party was established following the censorship ministers meeting in April 2009. It is developing proposals to strengthen and harmonise classification offences and penalties, reforming serial classification declarations and considering other means to regulate offensive publications including replacing the category 1 restricted and category 2 restricted classifications with a single restrictive classification and also looking at issues of sale and display of restricted publications.
Senator BARNETT —What was the last one and can you expand on it?
Ms Daniels—It is about limiting the sale and display of restricted publications to adult-only premises. They are some of the issues that the working party is looking at. The working party has met three or four times since it was established, once in person and that was this month, and the other ones have been via teleconference.
Senator BARNETT —Can you advise on notice where, when and who was in those meetings?
Ms Daniels —I could take that on notice.
Senator BARNETT —Thank you. So what have you come up with so far?
Ms Daniels—We are still working our way through all these issues and our plan is to be able to deliver something to censorship ministers prior to their meeting in 2010.
Senator BARNETT —When is that?
Ms Daniels —It is in the SCAG ministers meeting in April 2010.
Senator BARNETT —April?
Ms Daniels —I think so, yes. That is what we are working towards.
Senator BARNETT—We have not progressed very much have we, Mr Wilkins, since May. This has been a very high-profile concern for I know members of the community across the board. It would appear based on the letter from Minister Debus that he had serious concerns. He said it in his letter and that letter is dated February and we are sitting here in October.
Mr Wilkins —I think that depends on what you mean by progress.
Senator BARNETT —Could you tell us what further progress has been made since February 2009?
Mr Wilkins—We have explained the nature of this scheme. It is a Commonwealth-state scheme. The Commonwealth has certainly been doing what we can and you have heard from the Classification Board about their actions.
Senator BARNETT—From your point of view at the Commonwealth level, Mr Wilkins, what has the Commonwealth been doing since February 2009, apart from being involved in the working group that Ms Daniels just referred to?
Mr Wilkins—Our role is precisely the development of policy, and that is what we have been attempting to do, as is working in close cooperation with the Classification Board, making sure that complaints are handed to the states and territories, and that is precisely what we have been doing. This is a cooperative federal scheme. Some of the statistics you have been quoting do reflect some concern, as you say, with the system, but that is not necessarily the fault of the Commonwealth or this department.
Customs to target porn imports
Senator BARNETT —When you say that you have been developing policy, what policy have you been developing?
Mr Wilkins—A number of things. For example, we have been working on an area that we do have some purchase over, which is the way in which Customs treats material that is imported in the country or exported from it. We have been working with Customs to see what we can to develop a better system for ensuring that these items are identified and classified.
Senator BARNETT —Mr Wilkins, page 89 of the budget estimates Hansard of 25 May shows that, in an answer to a question from me, you said:
The department is working with the Australian Customs Service to develop amendments to the customs regulations to increase the penalties for the import of commercial quantities of objectionable goods.
Has that happened?
Mr Wilkins —Yes, it has happened. They are in draft.
Senator BARNETT —They are in draft?
Mr Wilkins —Yes.
Senator BARNETT —How draft is draft? When will they be promulgated?
Ms Daniels —If I can assist, they have been drafted and they are presently with Customs to go through the internal Customs consultation mechanism. When the comments come back from Customs, we will look to finalising them and doing any further consultations we need to.
Senator BARNETT —And they simply increase penalties, do they? Is that all they do?
Mr Wilkins—That, you will recall from our previous discussions at previous committee meetings, is one of the critical areas in this because the penalties, in some cases, are so low that they are simply a cost of doing of business as far as a lot of companies are concerned. So the idea of trying to increase the penalties is not simply window dressing. It actually goes to the incentive system of the work here.
Senator BARNETT—I do not want to think, as a Senate committee, that we are going around in circles. We had the same discussion in May about a very serious, concerning issue. You said yourself, Mr Wilkins, at the time:
The minister has considered options to strengthen harmonised classification offences and penalties.
Since then, what options have come forward to strengthen harmonised classification offences and penalties?
Mr Wilkins —I think we have just gone over that territory.
Senator BARNETT —So that is the extent of the options and the policy development to date?
Mr Yates—I can assist with a further bit of information. Our classification operations branch also provides relevant intelligence to Customs, as we discussed at the May estimates. We are putting more effort into trying to provide them with timely advice on information about objectionable material. We are also putting more effort into training Customs staff to increase their capabilities. This is in addition to the work with them on regulations.
Senator BARNETT—Mr Wilkins, does it concern you that these call-ins that have been made by Mr McDonald have been complied with in respect of your compliance?
Mr Wilkins —Yes.
Senator BARNETT —Have you considered any options to address those matters specifically?
Mr Wilkins—I think we have just been over that territory—that we are trying to address those through looking at what we can do with the states and territories through informing the states and territories. The minister has written to the states and territories and we are trying to work with Customs to do that.
Senator BARNETT—Okay. He did send those letters out in early February this year. It is now October, and we are talking about a submission going to the ministers’ SCAG meeting in April next year. There would be a lot of people in the community who would say that we are dragging our feet as a parliament and as legislators in protecting our children and our community from filth and offensive material.
Thank you for your answer to question on notice No. 21, where you listed the 337 publication referrals that had been made to law enforcement agencies in 2008-09 and gave a breakdown of them. You then indicated:
To provide the list of all publications would require publication of titles containing explicit language that would be offensive to members of the community.
That is well noted. Are you suggesting that all of the titles would be offensive to members of the community? In the past, I understand, you have provided details on the public record, but I am happy to be led by you with respect to the appropriateness or otherwise of providing that information.
Mr D McDonald —I am happy to provide the committee with all of the titles and to have the committee decide whether publishing all or any of them is likely to give offence.
Senator BARNETT—It may be best that we handle it in a separate committee meeting rather than requiring it here. If you do not mind, I would foreshadow to the committee and to yourself that that is my intent and that, if necessary, we would receive that evidence in camera and then make a decision after that.
Mr D McDonald —I would be very happy to do that. As you would expect, it is a sort of marketing tactic that these titles are none too subtle.
ACTING CHAIR—Sure, and Senator Barnett is right in terms of these proceedings. Everything during these proceedings must be made public. So, not as a result of taking a question on notice but as something that happens consequently to these hearings, you can simply send that information to the committee chair.
Mr D McDonald —We certainly have no wish to be secret about it.
ACTING CHAIR—Yes, but in order for us to be able to make that decision about what should be released and what should not, it needs to come to us through that avenue rather than as a consequence of these proceedings.
Senator BARNETT—Mr McDonald, thanks again for your introductory remarks today and thanks to Ms Booyar and Mr Griffin for being here. These matters are deeply concerning and no doubt we will have further discussions about them.
Mr D McDonald —Thank you.
ACTING CHAIR—Thank you to you and your officers, Mr McDonald, for your presentation to the committee today. We will have a five-minute suspension while there is a change of officers at the table.
October 23rd 2009
Refused-Classification.com
