Illegal porn and the R18+ debate
February 14, 2010
The availability of unclassified porn magazines and DVDs was again the main subject of last weeks Senate Estimates.
In September 2008 a group called Kids Free 2B Kids pressured BP and Coles to remove adult magazines from their service stations. The following month Julian McGauran and Barnaby Joyce had taken up the cause and were questioning the Classification Board during Senate Estimates.
Tasmanian Liberal Senator Guy Barnett continued the campaign during the 2009 hearings in May and October. Last week he again had Donald McDonald in his sights.
During 2008 and 2009 the Classification Board have been busy issuing call-in notices to distributors of unclassified porn. Donald McDonald admitted that none of the 827 call-in notices had been complied with and that the matters had been passed on to the various States.
Also discussed were the activities of the censorship working party. Helen Daniels, the Assistant Secretary, Copyright and Classification Policy Branch, listed some of areas that they were looking in to.
"....includes strengthening and harmonising offences and penalties for publications and films, the reform of serial classification declarations, display requirements on labelling requirements, whether there should be single category or a merging of category 1 and category 2 restricted classifications, and limiting the sale of restricted publications to adult-only premises"
Merging the Category 1 (softcore) and Category 2 (hardcore) magazine ratings into one, and then restricting them all to adult stores would provide Kids Free 2B Kids with a spectacular win.
The games R18+ was also discussed with Helen Daniels providing some encouraging information for supporters of the rating.
As of 1 February, we received 6,239 submissions: 5, 465 have been by email, 447 by fax and 327 by post.
The majority received so far are tending to support having an R18+ classification for computer games, but, as I said, we have only processed about 20 per cent.
As at 28 January, 11 of the 1,084 processed submissions opposed an R18+ classification for computer games.
Guy Barnett was obviously unhappy with these numbers and did his best to try and prove that the views of those against an R18+ were not being heard.
Remember that the submissions to the Games R18+ Discussion close on February 28th 2010. The majority so far may well be in favour, but that does not mean that you should not make your own submission.
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 October 2009 Senate Estimates.
The Board's Workload
Mr D McDonald—Thank you, Senator. I do and I am thankful for the opportunity of making an opening statement. As you have already noted, I am joined today by my board colleague who is the acting deputy director, Jeremy Fenton. Since we last met with the Senate committee, the Classification Board has continued to work efficiently to classify films, computer games and publications and so fulfil its statutory duty and its role in the National Classification Scheme. As you know, the National Classification Scheme is a cooperative scheme between the Commonwealth and all Australian states and territories. The board’s fundamental role is to make classification decisions. On the other hand, the states and territories are primarily responsible for enforcement. Customs and Border Protection Service regulate what can and cannot be imported into Australia.
In the first half of this financial year the board received 3,783 applications, including applications to classify 2,471 films, 617 computer games and 155 publications. These figures are generally consistent with the number of applications the board has received over the previous two years.
Illegal Adult Magazines and the Serial Classification
In estimates hearings senators have expressed concerns about the illegal sale of some adult magazines—concerns shared by the board. Continuing the practice I have described to you in recent hearings, I have called in for classification 440 adult films and 36 adult magazines since July 2009. Unfortunately, none of the publishers of these films and magazines complied with these notices; thus, they have all been referred to relevant state and territory law enforcement agencies for appropriate attention and action. I am not in a position to advise you what actions these agencies may or may not have taken with regard to these referrals.
The board continues to audit adult magazines that are covered by a serial classification declaration, and since July the board has revoked the classification of seven magazines which featured content not permitted in the classification. This revocation also applies to future issues of that publication covered by the declaration. While the board has been conducting rigorous audits since the first serial declarations were granted, our audit schedule will be increased from this year onward to include an audit of every periodical covered by a declaration to ensure that publishers do not abuse the system by including higher level or entirely illegal content.
Since we last met, the board has also given further consideration to the issuing of serial declarations. When deciding whether to issue a serial classification declaration, the board considers, among other things, the classification history of the periodical, statements from the applicant about the content of future issues and how the applicant intends to comply with conditions imposed by the board. Given the recent history of noncompliance by some distributors, the board has been tending to issue shorter serial declarations—up to 12 months, rather than 24 months.
Overall, I can assure you the board will continue to work with the Attorney-General’s Department, officers of the Classification Liaison Scheme, industry and law enforcement agencies to increase the industry compliance with state and territory classification laws.
Improving Awareness of Consumer Advice
On another matter, at the October meeting I expressed my concerns about consumers sometimes missing the very important advice that the board gives about films and computer games—advice such as, for example, ‘strong violence’ and ‘coarse language’. Providing such advice is a statutory requirement. Since then the board has started working with the department on a project to improve access to and understanding of consumer advice. During the first half of this year we will discuss options for improvements with industry and consumer representatives. The aim of the project is to increase the prominence of consumer advice on advertising and at points of sale and thereby to help Australians make more informed choices about what they and their families view for entertainment. I hope to report to senators about the progress and success of this project at future hearings.
Positions available at the Classification Board
2010 will be a period of some change for the board. Deputy Director Olya Booyar recently left to take up a senior Public Service position as her three-year term of appointment was drawing to a close. The board’s senior classifier, Jeremy Fenton, currently acting as deputy director, will leave the board in May having served his full seven-year term. Other long-serving members have recently left or will soon leave the board. This week advertisements have been placed on the internet and in newspapers across the country, including the regional press, to fill these positions. Members are appointed by the Governor-General on recommendation of the Minister for Home Affairs after consultation with state and territory censorship ministers. I look forward to welcoming our new members. Thank you for this opportunity.
Want to work as a censor?
For those of you who are interested in working as a censor, here is the advertisement that Donald McDonald refers to.
Australian Government
Classification Board
BOARD VACANCIES
The Classification Board, located in Sydney, is responsible for classifying films, publications and computer games on behalf of the Commonwealth, State and Territory Governments. No formal qualifications are required to become a member of the Board. Board members are representative of the community. Broad life experience and experience with children will be highly regarded and people from diverse backgrounds and regional Australia are encouraged to apply.
DEPUTY DIRECTOR
($184,170 pa including base salary of $134,450 pa)
Duties: In addition to the duties of Board
members, the Deputy Director is required to:
• Provide high level support to the Director in the ongoing management of
classification processes
• Act as Director in the Director’s absence
• Participate in the planning and management activities of the Board
• Represent the Board and discuss classification decision-making processes
with a range of stakeholders.
SENIOR CLASSIFIER
($135,930 pa including salary of $117,750 pa)
Duties: In addition to the duties of Board
members, the Senior Classifier is required to:
• Participate in the planning and management activities of the Board and
supervise Board members
• Represent the Board and discuss classification decision-making processes
with a range of stakeholders
• Oversee processes and procedures and provide input to new classification
services.
BOARD MEMBERS –SEVERAL POSITIONS
($107,200 pa including salary of $92,880 pa)
Duties: Board Members are required to:
• View and determine classifications and consumer advice for films,
publications and computer games,
• Apply formal guidelines and other legislative requirements in making
classification decisions, and
• Write reports on reasons for classification decisions.
Some highly ranked but unsuccessful applicants may be included in a register used for temporary appointment of Board members to provide short-term assistance with the work of the Board.
CONDITIONS FOR ALL POSITIONS: Successful candidates will be appointed for an initial fixed term of up to five years and may be eligible for reappointment to a statutory maximum of seven years.
The remuneration and allowances for all Board members including the Senior Classifier and the Deputy Director are determined by the Commonwealth Remuneration Tribunal.
NOTES FOR ALL POSITIONS: All persons interested in these positions must first obtain an Information Pack (containing position requirements, selection criteria, contact details and address for applications). Information Packs are available at www.ag.gov.au/classificationappointments or may be requested by fax on (02) 6141 3488 or by phone on (02) 6141 3416. Note that separate applications are required for each position.
All applications close 5:00pm on 1 March 2010.
Unclassified Porn Magazines
Here is the full text of the discussion regarding the adult film and DVD call-in.
The speakers are:
Senator Guy Barnett Liberal Senator for
Tasmania
Senator David Feeney Labor Senator for Victoria
Senator the Hon Penny Wong Labor Senator for South Australia
Legal Services
Sub Program 1.2.2—Classification and Copyright
Mr Julian Yates, Acting First Assistant Secretary, Territories and Information
Law Division
Ms Helen Daniels, Assistant Secretary, Copyright and Classification Policy
Branch
Attorney-General’s Department
Management and Accountability
Mr Roger Wilkins AO, Secretary
Classification Board
Mr Donald McDonald AC, Director
Classification Review Board
Ms Victoria Rubensohn, Convenor
Database Estimates Committees
Date 08-02-2010
Source Senate
Committee Name LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE
Place Canberra
Department Attorney-General’s Department
CHAIR —Thank you very much, Mr McDonald. Ms Rubensohn, do you have an opening statement that you want to make?
Ms Rubensohn —I do not, Chair.
CHAIR —All right. We will go to questions. Senator Barnett, do you want to start?
Senator BARNETT —Thank you. Welcome back, Mr McDonald. I presume you can table your opening statement for us.
Mr D McDonald —Yes.
Senator BARNETT —It sounds almost like the white flag going up in terms of the success of our classification system across the country. That is my feedback. Nevertheless, let me go straight to questions. You have outlined that 440 adult films and magazines were called in since July last year, and none have been complied with. That must be extremely disappointing and confirms that the system is not working. You indicate you have referred those matters to state and territory law enforcement agencies. Do you have a similar view, that the system is not working? What feedback have you had from state and territory law enforcement agencies?
Mr D McDonald—Perhaps the department can provide information on the response of the state and territory law enforcement agencies, because the board does not deal directly with them.
Senator BARNETT—Perhaps we can come to that in a minute. At the last estimates, we talked about community concern about the so-called teen porn titles depicting little girls as eager for sex with older men and rape and incest themes being sold in corner stores, milk bars, 7-Elevens and petrol stations, including McDonald’s fuel zone. I would like to ask some further questions about the lack of compliance. You have indicated that you had zero per cent response to the call-in notice. On this lack of enforcement of the classification laws, you made it clear last October that none of the call-in notices for adult publications from 2008 up to October 2009 had been complied. We have today heard that some 440 publications have been called in and none have complied with. So we have a zero success rate. Does this suggest that the distributors of adult publications hold the board and our classification system in contempt? What is the power of a call-in notice if it is ignored?
Mr D McDonald—A failure to comply with the call-in notice is in fact to render that publication, whether it is a film or a magazine, an illegal product.
Senator BARNETT —And it remains in the community, Mr McDonald.
Mr D McDonald —It may or may not.
Senator BARNETT —Why would you say that it may not? On what basis would—
Mr D McDonald —Retailers may well withdraw them from sale.
Senator BARNETT—Would you like to further expand on your response to the fact that we are getting zero per cent compliance with your call-in notices? What other powers exist under the call-in notice in terms of getting enforcement?
Mr D McDonald—Enforcement, as I said at the outside and as I have said before, rests with state and territory enforcement authorities. It is for them to prioritise these matters and act on them.
Senator BARNETT —Can you list the titles that you have called in and the distributors of those titles?
Mr D McDonald —I will provide you with a list.
Senator BARNETT—Thank you very much. And likewise for the ones from 2008 to 2009? We have not concluded that. You did not get success there. Have you monitored that progress of your call-in notices for 2008 up to October 2009 and what has been complied with and what has not? Can you give us an update report on those magazines?
Mr D McDonald—The publisher to whom the call-in notice is sent is required to respond within three days, so the monitoring can effectively end three business days after it is required. However, the community liaison officers, on their visits to premises, look out for these titles and act if they see them. What the states and territories do is for them to account for.
Senator BARNETT—These distributors, it seems, are having a field day. Are there any particular distributors that you can identify as being particularly troublesome in not responding to your call-in notices? Can you identify them, please?
Mr D McDonald —I can provide the names of those distributors.
Senator BARNETT —Can you do that now?
Mr D McDonald —I cannot do it right now, but I will take it on notice.
Senator BARNETT —How long will it take, Mr McDonald? Don’t you have a file there now with the names?
Mr D McDonald —No, I do not.
Senator BARNETT—Are there any that come to mind in terms of being particularly troublesome in not responding? Are there half-a-dozen distributors that are the absolute worst around—that never respond; that are shameful in their contempt for the board and their contempt for Australia’s laws?
Mr D McDonald —I will provide the names in response to that on notice.
Senator BARNETT —My question was: are there any that are particularly troublesome. Are there half-a-dozen? Are there a dozen?
Mr D McDonald —There are probably half-a-dozen in total—in respect of magazines. In respect of films there are probably fewer than that.
Senator BARNETT—Let me ask you about the called-in titles. Were any imported by Namda and/or Windsor Holdings, whose general manager is David Watt, who is also an office bearer of the Eros Association, which launched the Australian Sex Party.
Mr D McDonald —Namda is the holder of serial declarations for a number of titles which have been subject to call-in.
Senator BARNETT —How many? You do not know?
Mr D McDonald —I would prefer not to say. I would rather give you accurate information in my response.
Senator BARNETT —Sure—but dozens and dozens?
Mr D McDonald —Well, there would be several dozen.
Senator BARNETT —What about Windsor Holdings?
Mr D McDonald —I cannot answer that question.
Senator BARNETT—How many of the revoked titles have been previously given category 1 serial classification by the board? I am happy for you to take that on notice if you do not know.
Mr D McDonald —Yes, I think it would be better if I did. There would be a number of them.
Senator BARNETT —Does the board consider the evidence that the serial classification system should be scrapped?
Mr D McDonald—You will have learned from my opening remarks that we have restricted the range of it and have increased the controls around it. Serial classification relies on trust. As the board learns that there are some publishers or distributors who are not worthy of that trust then they do not receive a serial declaration in the future. I am expecting fewer difficulties with the serial classifications in the future.
Senator BARNETT—You said in October that you had called in 386 unclassified films for classification between 2008 and 2009, and in the first quarter of 2009 the figure was already 441. Have any of the call-in notices for these 827 films been complied with since we last met?
Mr D McDonald —None.
Senator BARNETT —How many of the publications and films were referred to law enforcement authorities in the states?
Mr D McDonald —All of them.
Senator BARNETT—Perhaps at this juncture, bearing in mind that answer, is the department able to respond to the response from the law enforcement agencies in terms of the outcomes?
Mr Yates—At this stage it is inappropriate for us to comment on the outcomes because those investigations by the state and territory authorities are still underway. We do not have any direct knowledge of those results other than they are underway at this stage.
Senator BARNETT—Thank you. We will come back to those related matters. Have you conducted any further audits of adult publications since October?
Mr D McDonald —We have, and as a result of that several serial declarations have been revoked.
Senator BARNETT —How many?
Mr D McDonald—As I said in my opening remarks, every publication that carries a serial declaration will be audited at least once during the term of that declaration.
Senator BARNETT —How many have you audited since October?
Mr D McDonald —We will provide that as factual information.
Senator BARNETT —Can you provide a list of the audited titles and the distributors for each title, on notice?
Mr D McDonald —Yes.
Senator BARNETT —Thank you. How many publications have been refused classification in the past 12 months?
Mr D McDonald —We will take that on notice.
Senator BARNETT—I am trying to find out whether there has been an increase in the number of publications refused classification. Perhaps you could look.
Mr D McDonald —I understand that. We will provide comparative information.
Senator BARNETT —Thank you. Have you also increased auditing of classified periodicals in the last 12 months?
Mr D McDonald —Yes.
Senator BARNETT—At the last estimates you indicated, ‘The department has improved communication lines with enforcement authorities at the state, territory and Commonwealth levels.’ In terms of those improved communication systems, can somebody perhaps explain how that is being done?
Mr Wilkins—We have a much more active liaison, working groups et cetera, with the states and territories, but it is very much a matter for the states and territories to enforce these laws. We can mainly deal with policy issues with them. There are liaison people who, as their name implies, look at the industry and talk to the states and territories and provide them with information. So all of that is happening.
Senator BARNETT —Have you established a special working group?
Mr Wilkins—There is a special working group under the Standing Committee of the Attorneys-General of the states, territories and the Commonwealth.
Senator BARNETT—Going back to the board, have you notified the Australian Customs Service of the names of the distributors who are responsible for the distribution in Australia of the imported magazines contemplating material that would be classified but which has been refused classification?
Mr D McDonald —Departmental officers have done that on our behalf.
Senator BARNETT—We will get to Customs later today. I want to ask about the censorship arrangements with SCAG, unless other senators have a question on classifications for the board. I have related questions on SCAG.
Censorship Working Party and Unclassified Porn
Here is the full text of the discussion regarding the introduction of an R18+ for games.
The speakers are:
Senator Guy Barnett Liberal Senator for
Tasmania
Senator David Feeney Labor Senator for Victoria
Legal Services
Sub Program 1.2.2—Classification and Copyright
Ms Helen Daniels, Assistant Secretary, Copyright and Classification Policy
Branch
Ms Jane Fitzgerald, Assistant Secretary, Classification Operations Branch
Attorney-General’s Department
Management and Accountability
Mr Roger Wilkins AO, Secretary
Senator BARNETT—Thank you, Chair. I have another topic to move to, if I could, in terms of an update on the activities of the censorship working party since October, and could the department provide a copy of the agenda for the April meeting of the censorship ministers.
Ms Daniels—Senator, in April 2009, ministers agreed to establish an intergovernmental working party to develop proposals, in consultation with law enforcement agencies, on strengthening and harmonising classification offences and penalties, reforming serial classification declarations and other means to regulate offensive publications. The compliance and enforcement working party is chaired by the department and includes representatives from all states but not the Northern Territory, who are unable to attend. Since the last estimates, it met on 18 November and on 3 February, and the working party plans to report on progress to censorship ministers in April.
Senator BARNETT —Do have an agenda yet for the April meeting?
Ms Daniels —No. There are a list of things the working party are looking at that we will be reporting to ministers on.
Senator BARNETT —Can you advise the committee of that list?
Ms Daniels—That includes strengthening and harmonising offences and penalties for publications and films, the reform of serial classification declarations, display requirements on labelling requirements, whether there should be single category or a merging of category 1 and category 2 restricted classifications, and limiting the sale of restricted publications to adult-only premises.
Senator BARNETT —Have public submissions been invited on any of those matters?
Ms Daniels—Public submissions have not been invited, but we have received submissions from a couple of stakeholders via the department that we have sent on to the working group members.
Senator BARNETT —So you are not intending to get public feedback on those matters?
Mr Wilkins—We are in the process of policy development and reporting to ministers. Once ministers have had a chance to look at the conclusions of the working group and form some preliminary views about policy directions then it might be appropriate to go out and seek some public input about that. But it would be premature at this stage to widely canvass it. As Ms Daniels said, there are interest groups whose views might have some currency and input into this process.
Senator BARNETT—In October I asked a question on notice, No. 40, with regard to the letter sent to law enforcement agencies from the former Minister for Home Affairs, Bob Debus, on 4 February 2009, as to the response received from the various law enforcement agencies. I got a response to that. I received a list of those who responded. However, I asked for the response received. I would like to request a copy of those responses and have them tabled, please.
Mr Wilkins—I think we will probably need to consult with the ministers in the states and territories. As you would appreciate, this is a matter of Commonwealth-state relations so provided the state and territory ministers are happy with that, we could provide that.
Senator BARNETT—I appreciate that and fully understand where you are coming from. If the answer is no, perhaps you could summarise for the committee the content of such a letter if they are not willing to provide a copy of it.
Finally, in the hearings last October, we were told that the A-G’s Department notified the relevant law enforcement agencies of failures of distributors of adult magazines, titles and films to comply with classification laws. Can you advise how many notifications you have received, what action is being taken in each instance and what other action law enforcement officers take to enforce compliance with the classification laws?
Ms Fitzgerald —If a call-in notice is not complied with or there has been some other potential breach of classification laws that is discovered by classification liaison scheme officers, generally what happens is those potential breaches are referred to the relevant state or territory law enforcement agency. We do that through a formal referral process. However, law enforcement agencies do not generally provide us with advice as to what they do next.
Senator BARNETT —What is the formal notification process? Is it a letter?
Ms Fitzgerald —Yes.
Senator BARNETT —Does it come from the department?
Ms Fitzgerald—It comes from me. What will happen is the director of the board will, for instance, issue a call-in notice and then there will be no response after the statutory three-day period. Once that time has expired, I will then send a letter to the law enforcement contacts that we have—we have a particular contact in relevant jurisdictions—advising them of the potential breach and any other relevant information that we have about the particular matter.
Senator BARNETT—So for the 440 publications that Mr McDonald referred to this morning and the 81 call-in notices of adult publications that we referred to back in October, you have sent a letter to each state and territory law enforcement agency with respect to each of those?
Ms Fitzgerald —Yes, that is right. We send them to the relevant jurisdiction.
Senator BARNETT —So it may be the AFP and, indeed, Customs. Do you communicate with Customs as well as the AFP?
Ms Fitzgerald—We regularly communicate with Customs but they are not an enforcement body in relation to the type of offences that I am talking about. The types of offences that I am talking about are found in the state and territory legislation. So, if for example, we found that a distributor that we knew was based in New South Wales had not complied with a call-in notice I would write a letter to the state and territory law enforcement official in New South Wales. Similarly, if they were distributing out of Western Australia or Tasmania I would write to the law enforcement official in that state.
Senator BARNETT—Understood. Are you saying there are no responses to date? Or have you got some responses and if so what sort of response have you received?
Ms Fitzgerald—The way the system is set up is that the information flow is one-way to them. The law enforcement official is under no obligation under the scheme to report back to me as the assistant secretary or indeed to the director of the board. We may receive a follow-up inquiry from a police officer in a particular jurisdiction. He might receive my letter and might want some information. Let me give you an example. Last week officers of the classification liaison scheme who report to me were speaking with Victoria Police—I will not mention the particular instance for obvious reasons—about a referral letter that had gone to them. They wanted some specialist advice about the particular types of product that they were likely to encounter if they indeed undertook some sort of operation in relation to that jurisdiction.
Senator BARNETT—Let me ask you specifically: have you received any advice or communication from a law enforcement agency confirming their success or otherwise with respect to following up this illegal activity?
Ms Fitzgerald—What I am saying to you is that we are regularly in contact with particular jurisdictions and we regularly receive follow-up information from jurisdictions but it is not in the manner of a formal communication like my communication is to them. Indeed, they do not necessarily contact the Attorney-General’s Department once they have finalised a particular investigation.
Senator BARNETT—So you have no knowledge or understanding of any success or otherwise by the law-enforcement agencies with respect to the call-in notice?
Ms Fitzgerald —I will have information if the law enforcement official provides it to me but if they do not then I will not.
Senator BARNETT —But, more often than not they do not. It is uncommon that they do. Is that a fair comment?
Ms Fitzgerald —Yes. It is not routine, it is not mandated.
Mr Wilkins —It is an unknown unknown.
Ms Fitzgerald —Indeed.
Senator BARNETT—To sum up, the department and the government are oversighting a system that you have confirmed today, and which you confirmed at least in part in October, is in failure, a system that is not working. The call-in notices are not working. What we do know is that we have teen porn titles depicting little girls, inappropriate behaviour and all sorts of inappropriate filth out there in the community—whether it be in service stations, bookstores, corner stores, milk bars, 7-Elevens or whatever. We are overseeing a system in failure. That seems to be confirmed again today by the opening statement from Mr McDonald and the evidence that we have had before this committee. Is that correct?
Mr Wilkins —I think that overstates the position considerably.
Senator BARNETT —That is how I see it.
Mr Wilkins —There are obviously shortcomings in the system and we are trying to address those. That is undoubtedly the case.
Senator BARNETT —But you have been doing that for years.
Mr Wilkins —There is always room for improvement.
Senator BARNETT —Indeed.
Mr Wilkins—For example, the minister has now stiffened the penalties under the customs legislation and regulations to try to ensure that people have appropriate negative incentives to report matters and to make them available. That gives Customs more power. Of course there are problems with this system and it is under considerable strain with the emergency of new technologies, the burgeoning of publications et cetera. So it is silly to pretend that there are not a whole bunch of questions and some quite radical challenges to the system of classification—for example, with the R-rated games question. That is a whole new genre of material that may or may not come within the classification scheme. Also, there is the federal system—in other words, the fact that we rely on the states to basically enforce the law while the standards are made at a national level. All of that needs to be kept under close review, and it is being kept under close review. There are significant challenges for us all in doing that.
CHAIR —It is 10.30, so we are going to break for morning tea. Before we do, are there any other questions of the Classification Board and the Classification Review Board?
Senator FEENEY —I have one, which I am happy to deal with now.
CHAIR —With my indulgence you can deal with it now.
Senator FEENEY—The opportunity to ask it now just seems too good because Mr Wilkins referred just a moment ago to the change in the customs regulations and I want to ask a couple of quick questions about those government changes. I understand they date to only December 2009. I was wondering if you could tell us what problem those changes to regulations will assist us in addressing.
Ms Daniels—In the broad, the intention is to provide a greater disincentive for the importation of offensive publications and other objectionable goods.
Senator FEENEY —How do they do that? What are the new penalties?
Ms Daniels—The new penalties are for up to five years in prison and apply to the import and export of commercial quantities, which are 25 or more copies, of objectionable goods and to imports for a commercial purpose, such as selling, exhibiting or displaying it in public.
Senator FEENEY —Can you tell me what the breadth of goods is that the new penalties apply to? Are we talking just about magazines or film?
Ms Daniels —No, it is broader than that. It applies to DVDs as well, to a whole range of material beyond classification 2.
Senator FEENEY —What were the penalties previously? How significant an increase in penalties are we talking about?
Ms Daniels—Can I take that on notice, just to be sure what the previous ones were, so that I can give that accurately? It is monetary and imprisonment.
Senator FEENEY —You will take that on notice?
Ms Daniels —Yes.
Senator FEENEY —Thank you kindly.
Proceedings suspended from 10.32 am to 10.52 am
Senator Wong —Chair, I think Mr Wilkins has an issue to raise arising out of the previous questioning.
Mr Wilkins—Chair, you might recall that in response to a question from Senator Barnett, the department indicated that we were prepared to table for the committee the titles of the 440 films and the magazines that were the subject of the question. Last estimates the committee took the view that it did not want to publish these names. We are perfectly happy to provide them to the committee. It is really a question for the committee as to whether you want us to now hand them up and make them public.
CHAIR—My understanding is that that is not what we have done on previous occasions. There is an issue, I think, with making them public, but the committee could deal with it by way of correspondence. We may need to get advice about how we are going to deal with this.
Mr Wilkins —We will hold off then.
CHAIR —We will get back to you about that.
Senator BARNETT—The reason I want to make this report public, unlike last time where there was an advice that it could be of concern for some reason, is that these publications are already in the public arena. They are being sold at milk bars, seven-elevens, petrol stations and bookstores all around Australia. These are already in the public arena. The submission was to make them public, so the public has a right to know the level of filth that is already in the public arena. I am happy to seek advice from the Clerk of the Senate, and/or her officers, to take advice on that. But that is the reason and motivation behind my previous request.
Senator Wong—Madam Chair, that is obviously a matter for the committee, and we will await your views about that. I think the alternative view might be that, by making them public in this way, the Senate would actually be assisting in advertising the filth.
CHAIR —As I said, we are going to take advice about how to best handle that. Mr Wilkins, we will come back to you with that.
Mr Wilkins —Thank you, Chair.
Senator BARNETT —I think we are agreed on the fact that it is filth, Minister. That is good news.
CHAIR—I think the minister was simply requoting your words, Senator Barnett, as opposed to espousing her own view. We have already talked about matters of opinion and views today. We are now going to deal with a couple of changes to the program. There has been a request to have the Family Court and the Federal Magistrates Court just a bit later. I think we are waiting on Senator Brandis to ask questions in that area. So we might proceed to the Federal Court and then to the High Court. The other thing I need to advise people from the department is that to enable Minister Wong and Minister Ludwig to swap responsibilities later this evening and to ensure that they also have a decent dinner break we are going to move our dinner break to 7 pm to 8 pm.
Senator Wong — Both Senator Ludwig and I are most grateful, Chair, for the committee’s assistance.
CHAIR —We are here to assist, always.
[10:56 am]
The R18+ Discussion Paper
Here is the full text of the discussion regarding the introduction of an R18+ for games.
The speakers are:
Senator Guy Barnett Liberal Senator for
Tasmania
Senator David Feeney Labor Senator for Victoria
Senator the Hon Penny Wong Labor Senator for South Australia
Legal Services
Sub Program 1.2.2—Classification and Copyright
Mr Julian Yates, Acting First Assistant Secretary, Territories and Information
Law Division
Ms Helen Daniels, Assistant Secretary, Copyright and Classification Policy
Branch
Ms Jane Fitzgerald, Assistant Secretary,
Classification Operations Branch
Attorney-General’s Department
Management and Accountability
Mr Roger Wilkins AO, Secretary
Classification Board
Mr Donald McDonald AC, Director
Database Estimates Committees
Date 08-02-2010
Source Senate
Committee Name LEGAL AND CONSTITUTIONAL AFFAIRS LEGISLATION COMMITTEE
Place Canberra
Department Attorney-General’s Department
Senator FEENEY—I want to ask you some questions concerning classification of computer games. I note on 14 December last year the Minister for Home Affairs, Brendan O’Connor, released a consultation paper to discuss the notion of whether there should be R18+ classification for computer games. From the submissions already received have you been able to identify the main issues that are being ventilated through that discussion paper?
Mr D McDonald—That consultation process is ongoing, as your question implied. The collating of those responses is the responsibility of the department and it is my understanding they have begun to do so. There a very large number of responses.
Senator FEENEY —Have you undertaken any kind of review or assessment of the submissions received to date?
Mr D McDonald—No, we will do it when the process is complete. But, in any case, the result of that consultation will be information for the government and for the state and territory governments. It is not a matter for the board itself. The board does not have a view about R18+ classification for games. That is a matter for legislators.
Senator FEENEY —So you are not intending to make a submission?
Mr D McDonald —No.
Senator FEENEY —The consultation period ends at the end of February. Is that correct?
Mr D McDonald —That is correct.
Senator FEENEY—Could I ask the department some questions pertaining to this consultation paper. Are you in any position at all to tell us about the submissions received to date?
Mr Yates —I will ask Ms Helen Daniels, Assistant Secretary, Copyright and Classification Policy Branch, who has some information on that.
Ms Daniels —As of 1 February, we received 6,239 submissions: 5, 465 have been by email, 447 by fax and 327 by post.
Senator FEENEY—That total number of submissions is obviously an impressive, but it is not unknown that you will receive a lot of submissions in similar or precisely the same terms, particularly those you have received by email. Are you in any position to give us a sense of how many of those submissions might be characterised as substantive? Do you have any internal classification system for identifying how many of those submissions might be more than a page?
Ms Daniels—The discussion paper encouraged people to respond by a template—and of course we will accept and look seriously at submissions that do not use the template. A lot of those received so far have used the template, and that includes a list of questions with a range of answers in them. So far the department has processed, for want of a better word, about 1,100 of those. They have been using the template so that makes the processing a little easier.
Senator BARNETT —So 1,100 used the template?
Ms Daniels —Have been processed by the department out of the 6,000 so far.
Senator BARNETT —How many used the template?
Ms Daniels —Can I take that on notice?
Senator BARNETT —Sure.
Ms Daniels —I will give the answer for the ones received to date.
Senator FEENEY —Is the department in any position now to provide us with advice about what the main issues are?
Ms Daniels—The majority received so far are tending to support having an R18+ classification for computer games, but, as I said, we have only processed about 20 per cent. Until the consultation process is finished, it is difficult to make generalisations. But of those to date that we have looked at that is certainly the position.
Senator FEENEY—When you say that the majority support the creation of such a classification, would you say it is the overwhelming majority? Can you give us an indication?
Ms Daniels—I would say the overwhelming majority. As at 28 January, 11 of the 1,084 processed submissions opposed an R18+ classification for computer games.
Senator FEENEY—Of those you have processed so far, you say the overwhelming majority support the classification. Can you give us any idea of what the top issues might be, what the top drivers might be, for that opinion being put forward?
Ms Daniels —Consistency across other media, particularly DVDs, would be one and the fact that a lot of adults are gamers.
Senator FEENEY —That is all I have on R18+.
Senator BARNETT—Of the 20 per cent that you have assessed to date, you are saying that an overwhelming majority support the R18+ classification?
Ms Daniels —Yes, that is to date.
Senator BARNETT —Of the ones you have looked at are they mostly email or a variety of email and post?
Ms Daniels —They are mainly email because that is the way the majority have come in.
Senator BARNETT —Of the 5,465 by email what proportion—and you have indicated you will take this on notice—are the template version?
Ms Daniels —A very high proportion, but I would prefer to take that on notice to give you the correct figure.
Senator BARNETT—That is fine. In the template version there are asterisks if you want to nominate your gender, age and gaming habits. I am not suggesting a preconceived view by the department, but is there a tendency to push submitters into a certain answer, because there must be a little bit of pressure if you are putting on gender, age, gaming habits and other personal questions. The issue of privacy is also of concern. Can you tell us about your response to the privacy issues in particular?
Senator FEENEY—Perhaps you might tell us what information you are seeking to ascertain from respondents’ gaming habits. Senator Barnett is creating a mystique around that terminology which it does not deserve.
Ms Daniels—For those that who decide to answer those questions on what the department is seeking, we are hoping to get at a more complete picture so that we can advise ministers about the situation in relation to R rating plus. The Commonwealth does not have a position on whether there should be an R rating plus category for games or not. The discussion paper is intended to be even-handed.
Senator BARNETT—That is really the point. If people do not participate in gaming practices, how are you still encouraging them to make a submission? Are you still encouraging them to make a submission?
Ms Daniels—The department seek submissions from everyone. I am imagining those who are putting in text based submissions will probably come in in the next few weeks as opposed to the template version. Of course, we will be analysing all submissions received. We do not yet have many submissions from bodies representing particular sectors, for example. Those submissions are yet to come in.
Senator Wong—When Senator Barnett is referring to ‘gaming habits’, is this the question which says, ‘Do you play computer or video games, yes or no’? Is that what you mean by ‘gaming habits’?
Senator BARNETT —That is my understanding, yes.
Senator Wong —And, ‘How frequently do you play? How long do you play in an average session’?
Senator BARNETT—That is right. There are a lot of people who have views on this—and Mr Wilkins, you are looking at me quizzically—who do not play computer games but are fully aware of the impact of R rated computer games. I hope you understand the thought behind it.
Senator Wong—Absolutely. I was just a little confused as to the non sequitur in the question which suggests that, because the department has the question ‘Do you play computer or video games, yes or no’, that that somehow is skewing the questionnaire or the submission.
Senator BARNETT—I am not saying that is skewing the questionnaire. I am saying that you are setting up a system whereby you have answers from people who do not participate in gaming and those who do participate in gaining. That is correct, is it not?
Senator Wong —It says, ‘Yes or no?’
Ms Daniels —That is correct, but they are both equally valid and they are answers we will advise the minister of.
Senator BARNETT—You have said in your discussion paper, ‘Please use the submission template attached to this paper.’ You have an optional 250 words but there is no encouragement to use as much length and time as they wish. It just seems you want the formulaic responses set out in the department’s discussion paper.
Ms Daniels—We knew it would be a large consultation process. We were trying, in an attempt to put some indicators to those who wanted to put in submissions. We wrote to various organisations to seek their views as well. So it is not just the template which will form part of the consultation process, but as a lot of individuals will be having a view on this issue, we thought a template was a sensible way to go.
Senator BARNETT —But you have made mandatory answering those questions about gender, age and gaming habits, is that right?
Ms Daniels —In relation to mail and email, I do not know whether they are mandatory.
Senator FEENEY —I do not think any component of the survey could be characterised as mandatory. No-one is obliged to fill in any part of it.
Senator BARNETT—So you are not setting up a system where you are going to put more weight on certain answers. How will you assess the answers and the submissions when they come in? Will they all be equally weighted?
Ms Daniels—Yes, we have to give the minister an analysis of all submissions received. So on those arguments for and against which were raised in the paper our intention would be to give the minister and ministers an assessment against each of them.
Senator BARNETT—Right. How much weight are you going to be giving to the quantity of the responses, compared to a response from perhaps entities that might put in a more substantial submission? How will you assess it?
Ms Daniels —In our advice to the minister, we would give both quantitative and qualitative advice on what was received.
Senator BARNETT —I am advised that in the US the unmodified version of the game Left 4 Dead 2 was given a ‘mature’ rating—so, suitable for persons aged 17 and older—but was classified ‘refused classification’ in Australia. ‘Mature’ games in the US may contain intense violence, blood and gore, sexual content and strong language. What is the minister’s intent in wanting to open the possibility of these extremely violent and sexually explicit interactive games being made available in Australia? That is a question for the minister. I am happy for you to take it on notice, Minister.
Mr Wilkins —That is one for the Classification Board.
Senator BARNETT —I am happy for the board to respond.
Mr D McDonald —Senator, I can give you the history of the classification of that game in Australia—this is Left 4 Dead 2. On 15 September 2009, the Classification Board classified an original, unedited version of Left 4 Dead 2 as RC—that is to say it was refused classification. In the board’s view, the game was unsuitable for a minor and contained violence that was more than strong in impact. The interactive nature of the game increased the overall impact of the frequent and intense depictions of violence. This, coupled with the graphic depictions of blood and gore, combined to create a playing impact that was considered high. The distributor applied for a review of this decision and, on 22 October 2009, the Classification Review Board met and also classified the game ‘RC’—in other words, they refused classification. A modified version of the game was later submitted to the Classification Board and was classified MA15+, with consumer advice of ‘strong, bloody violence’.
Senator BARNETT —All right. Thank you for that. Did the minister want to respond to that question as to why the minister or the government would want to make such a video game legal?
Senator Wong—I am not sure I have got any instructions or advice from the minister about the view on that specific game. I would have to take that on notice. I am not sure I can agree with the assertion you have just made either.
Senator BARNETT —I am happy for you to take it on notice.
Mr Wilkins —Can I just comment on that, Senator. The Classification Board classifies according to the existing law. The discussion paper is out there precisely because the government is trying to elicit what the public view is and it will then make some policy decisions on the basis of that. So that is the position. The government has not got a concluded view on this issue.
February 14, 2010
Refused-Classification.com
