UPDATES: 29th August 2009
BEAT ANGEL ESCALAYER: R18+ Hentai DVD is Cut
Banned and Censored Porn Round Up
Censor Flashback: PAYBACK (1990)

UPDATES: 21st August 2009
Censors stop MUFF screening MATINÉE

UPDATES: 9th August 2009
RISEN: The latest game banned in Australia
EVIL VAULT 4: Banned in Australia
Censor Flashback: THE AFTERMATH (1982)

UPDATES: 26th July 2009
T&A TEACHER: R18+ Hentai DVD is Cut
Censor Flashback: DEATH WARMED UP & ANGEL MINE
New Rating and Consumer Advice: DOGS IN SPACE, AMERICAN HISTORY X, and SIN CITY

UPDATES: 4th July 2009
Cash Markman and Aussie Lesbians banned
FREE & WILD 10-HIGH ENERGY: RC
NOT WITH MY WIFE YOU DON'T: RC
POSTCARDS FROM THE BED: RC
THE WRONG KIND OF WOMAN: RC
Australia to get a censored BRÜNO
LET SLEEPING CORPSES LIE: Australian Release!
Censor Flashback: TAKE ME (1991)
Advertising Standards Bureau: December 2008 Complaints 
DYING BREED Poster Complaint

UPDATES: 8th June 2009
SEXY POKER: Banned in Australia
Censor Flashback: CAGED FURY (1989)
Advertising Standards Bureau: October - November 2008 Complaints 
NOT QUITE HOLLYWOOD: No Poofters Allowed
SAW V: Bus Advertisement
Senate Estimates: Graffiti and Porn Mags, Customs, and Police

Australian Censorship News    
29th August 2009

BEAT ANGEL ESCALAYER: R18+ Hentai DVD is Cut

BEAT ANGEL ESCALAYER is the latest hentai that we can report is censored in Australia. This is again part of Siren's Hentai collection and was rated R18+ (High level animated sex scenes) in July 2008.  Thanks again to Geoff for his work in uncovering these cuts.

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Banned and Censored Porn Round Up

The ban on Joey Silvera's EVIL VAULT 4 has been lifted following the removal of a massive 21 minutes of footage. 

A 132m version of Chi Chi La Rue's THE FINAL LINK, was Refused Classification on August 12th. This gay hardcore DVD has now been censored down to 128m for an X18+ (Explicit Sex) rating. Both of the above titles were submitted by Calvista.

Three titles were submitted by the ACT Office of Regulatory Services, the body in charge of monitoring that only legal X18+ titles are available there. They are the reason that you will find fewer unrated titles in the ACT, where X18+ hardcore is legal, than in States such as NSW and Victoria where X18+ is illegal. HUSTLER'S TABOO MAGAZINE BONUS MAGAZINE DVD was banned by the Classification Board, whilst the Gia Paloma's NASTY HARD SEX (2004), and RAZORDOLLS (2006) were passed X18+ (Explicit Sex).

Back in June the Richmond Branch of the Victorian Police raided the offices Abby Winters following pressure from a story written by a Herald Sun journalist. Obviously hoping to discover some illegal activity they took away a number of DVDs and submitted them to the Classification Board. Abby Winters must feel somewhat vindicated now that all eight titles have been passed with X18+ (Explicit Sex) ratings, and none were Refused Classification. The films were:

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Censor Flashback: PAYBACK (1990)

For this look back into Australian censorship history we visit 1992 for the low budget action film PAYBACK.  Matt has provided us with a review where he has managed to identify the likely scenes that the OFLC objected to.

Update 29th August 2009
Refused-Classification.com

Australian Censorship News    
21st August 2009

Censors stop MUFF screening MATINÉE

The 10th Melbourne Underground Film Festival opens tomorrow and once more they have issues with the censors. This time they have refused a festival exemption for a screening of Jennifer Bell's short film MATINÉE.

This is not the first time that the MUFF have run into problems. Seven titles were dropped in 2006 and four in 2004. All are covered in more depth in our film database. 

Update 21st August 2009
Refused-Classification.com

Australian Censorship News   
9th August 2009

RISEN: The latest game banned in Australia

Koch Media's medieval role-playing game RISEN has become the latest title be banned by the Classification Board. It joins NECROVISION and SEXY POKER, and is the third game of 2009 to be Refused Classification.

In the U.S. the Entertainment Software Rating Board (ESRB) has already rated it as Mature meaning that it is suitable for persons 17 years and older.  Sex or drugs, or a combination of the two look to have been the reason that the game was banned here in Australia.

The ESRB describe the sex and drug content as follows. 

"During the course of the game, players can interact with prostitutes (referred to as "whores" in the game) at a local brothel. Players can trigger a lengthy dialogue to engage in their services; sexual activity is strongly implied, but never depicted on screen"

Many of the characters in the game smoke a fictional drug called "brugleweed." The "wood reefer" plant is described as having a mild relaxing effect on users, and can be bought, sold, and used by players.

The game is due for worldwide release in October.

The full ESRB report is as follows.

MATURE Titles rated M (Mature) have content that may be suitable for persons ages 17 and older. Titles in this category may contain intense violence, blood and gore, sexual content and/or strong language.

Entertainment Software Rating Board
Risen
Platform: Windows PC, Xbox 360
Rating: Mature
Content descriptors: Blood, Sexual Themes, Strong Language, Use of Drugs, Violence

Rating summary: This is a role-playing game (RPG) in which players control a castaway on a Medieval island. Players can explore the island, interact with its inhabitants, solve quests for the people, and kill various monsters along the way. Players can use swords to attack characters, including bystanders, resulting in brief splashes of dark red blood. During the course of the game, players can interact with prostitutes (referred to as "whores" in the game) at a local brothel. Players can trigger a lengthy dialogue to engage in their services; sexual activity is strongly implied, but never depicted on screen. Many of the characters in the game smoke a fictional drug called "brugleweed." The "wood reefer" plant is described as having a mild relaxing effect on users, and can be bought, sold, and used by players. Some profanity (e.g., "f*ck" and "sh*t") can be heard in the dialogue.

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EVIL VAULT 4: Banned in Australia

Joey Silvera's EVIL VAULT 4 has become the latest hardcore porn DVD to fall foul of the Classification Board. They hit it with an RC-rating back in July for what we can speculate was some kind of fetish.

Evil Angel Summary: 
EVIL VAULT 4 proves that Joey Silvera's leftovers put most other porn directors' best work to shame. Eight scenes ranging from full-out orgies to fetishy vignettes are populated by dreamy teenage whores captured in all their transient intimate glory. Balloons, pocket rockets, dog collars and red licorice all become tools of lust as we accompany the king of teen kink on a colorful journey through the real Candyland.

EVIL VAULT 3 was also banned by the Classification Board who gave it an RC-rating in August 2007. It was later censored down to an X18+ (Explicit Sex) rating.  The original EVIL VAULT has never been rated, but EVIL VAULT 2 passed with no problems in 2005.

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Censor Flashback: THE AFTERMATH (1982)

For this update our flashback visits 1985 when the censors banned the post-apocalyptic sci-fi THE AFTERMATH. It was later released on VHS by Platinum Video missing around two minutes of what the censors described as 'excessive violence'. Matt has now reviewed the uncut version and reports exactly what was missing.

Update 9th August 2009
Refused-Classification.com

Australian Censorship News   
26th July 2009

T&A TEACHER: R18+ Hentai DVD is Cut

Geoff is back to report more censored hentai in the form of Siren's T&A TEACHER.  The Classification Board passed this with an R18+ (High level animated sex scenes, Violence) in February 2008. This then became one of the four titles that were looked at by the Review Board following complaints from Catholic World Youth Day pilgrims. It managed to hold onto the R18+ rating with only the consumer advice changed to 'High level animated sex scenes and sexualised violence'. Now we know that the version we are talking about was censored all along.

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Censor Flashback: DEATH WARMED UP & ANGEL MINE

We have a flashback double for you this update in the form of two films from Kiwi Director David Blyth. In 1980 his first feature ANGEL MINE lost a sex scene for an R-rating. His best known work is DEATH WARMED UP which in 1985 was heavily cut to tone down the violent content. 

See the database entries for David's comments on both titles. We have to agree with his views of the censor's cultural discrimination against New Zealand. How else can you explain the 1989 ban on Peter Jackson's BAD TASTE? A film that at the time even the scissor mad British censors saw fit to pass uncut.

Australian film censorship is now probably a little more liberal than New Zealand. The above mentioned T&A TEACHER hentai was banned there. We have also leant that THE HOWLING: SPECIAL EDITION was banned in March. No doubt this was due to the FAKE PORN MOVIE extra that also caused problems in the UK. 

New Zealand's game censorship will always be more liberal than us as long as they have a games R18+ and we don't.

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New Rating and Consumer Advice: DOGS IN SPACE, AMERICAN HISTORY X, and SIN CITY

Three more titles that have been back before the Classification Board for new ratings. 

DOGS IN SPACE: From R18+ to MA15+

First up we have the 1986 Aussie film DOGS IN SPACE. Hoyts were naturally keen for an M-rating (this was before MA15+) to appeal to fans of Michael Hutchence. Unfortunately the drug references pushed it into an R18+ category. A new version was prepared, but this was also rated R18+. An appeal to the Review Board only confirmed this. Twenty two years on and it has been dropped to MA15+. This DVD is due out from Umbrella Entertainment in August.

14/04/09: DOGS IN SPACE Film (DVD) MA15+ (Consumer Advice Strong drug use and coarse language)
06/01/87: DOGS IN SPACE Film (35MM)  Classification R - 107min
01/01/87: DOGS IN SPACE Film (35MM)  Classification R - 103min
01/01/87: DOGS IN SPACE Film (35MM)  Classification R - 107min
29/10/86: DOGS IN SPACE Film (35MM)  Classification R - 103min

Here is the Review Board report from 1987 where they confirm the R-rating of the censored version.

Title: "DOGS IN SPACE" (Reconstructed Version)
Applicant: Hoyts Distribution Pty Ltd
Decision Reviewed: Classify 'R' by the Film Censorship Board

Decision: DOGS IN SPACE depicts a subculture of people who form a community of permanent and transitory youth eking out an existence associated with drug-taking and aimless living. It depicts the degradation of that community when it breaks up upon the death of the central female character from an overdose of heroin. The film is well made, acted and stylishly produced and is obviously a film of high quality. 

The Board, in its original judgement, considered that much of the tone of the film is non-condemnatory of drug taking, despite the lesson of the ending which depicts personal tragedy and fragmentation of the community. Counter-arguments, personal and in writing, were presented by the film's producer, Ms. Glenys Rowe. 

The Board acknowledges the warning now issued at the beginning of the film about drug-taking. This warning, however, was seen as achieving relatively little in softening or changing the impact engendered by the visual style and pace of the film; neither did it make drug-taking appear less attractive in the way it was presented. Overall, the film continues to project a permissive subculture that overindulges itself in many different displays of pleasure-seeking and self-gratification. The Board inferred from the reconstructed film, as it did from the original, that this film does not recommend or advocate drug use. The visual impact of the film, however - which spends little time developing character or clarifying its point of view so as to reinforce the appended warning - could lead impressionable adolescent viewers to accept that drug use is tolerable and, for some, could even be said to encourage drug abuse. 

A minority of the Board maintained its previous opinion that the film was sufficiently condemnatory of drug-taking, overall. Another minority opinion expressed was that the film at times condemned hard drugs, while failing to condemn the taking of other drugs. 

The Board as a whole was not unduly concerned with language in the film, though some Members did see it as strong, and Members did not consider that drug use was portrayed in an excessively detailed way. The attitude of the film, however - that of implied tolerance of drug use, and even abuse - continued to place the film, for the majority of the Board, within the "Restricted" category.

The Films Board of Review accordingly confirms the decision of the Film Censorship Board to classify DOGS IN SPACE (RECONSTRUCTED VERSION) "For Restricted Exhibition" ("R"). 8 January 1987.

AMERICAN HISTORY X: New Consumer Advice

Ten year on and the MA15+ is retained, but the warning for AMERICAN HISTORY X has been increased

03/09: AMERICAN HISTORY X Film (DVD) MA15+ (Strong violence, themes and coarse language)
11/98: AMERICAN HISTORY X Film (35 mm) MA15+ (Medium level violence, Medium level coarse language, Adult themes)

SIN CITY: New Consumer Advice

The two DVD releases of SIN CITY have both had their consumer advice increased. This may have been due to extra footage.

03/09: SIN CITY Film (Blu-Ray) MA15+ (Strong violence)
08/05: SIN CITY Film (DVD) MA15+ (Strong violence)
05/05: SIN CITY Film (35 mm) MA15+ (Medium level violence)

Update 26th July 2009
Refused-Classification.com

Australian Censorship News   
4th July 2009

Cash Markman and Aussie Lesbians banned

Calvista has seen three of Cash Markman's DVDs recently run into problems. We also have a ban being slapped on an Australian produced lesbian DVD.

A heavily censored 75m DVD of NOT WITH MY WIFE YOU DON'T! was rated R18+ (Mainly concerned with sex) on May 5th 2009. It has since been Refused Classification twice, first in a 102m version on May 26th 2009, and again in a 100m version on June 5th 2009. Both of these presumably contained hardcore and were aiming for an X18+. 

A heavily censored 81m DVD of POSTCARDS FROM THE BED was rated R18+ (Mainly concerned with sex) on May 20th 2009. While a 97m DVD was Refused Classification on June 2nd 2009.  Again this presumably contained hardcore and was aiming for an X18+.

The third title was THE WRONG KIND OF WOMAN was banned in an 88m version on May 21st 2009. A censored 84m version was passed with an R18+ (Mainly concerned with sex) on June 5th 2009. This was followed by a 64m version which was rated X18+ (Explicit sex) on May 28th 2009. This gives a good indication of how much footage can sometimes be removed to achieve an X18+. The synopsis for this title makes it sound as thought there was at least some kind of plot. Unfortunately this does not usually fit well in the X18+ category. This probably explains how the R18+ version can run 24m longer than the X18+.

Finally we have some banned Aussie porn in the shape of Charles McFarland's FREE & WILD 10: HIGH ENERGY. Syntech Video Co had this 76m lesbian DVD Refused Classification on June 3rd 2009. We have a feeling that they were aiming for an R18+ but instead overstepped the mark.

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Australia to get a censored BRÜNO

On June 4th, BRÜNO, Sacha Baron Cohen's follow up to BORAT, was surprisingly hit with an R18+ rating by the Classification Board. We knew there was no way that Universal would settle for anything more than an MA15+, and on June 18th they got what they wanted. This does not seem to have been the result of an appeal to the Review Board. Instead the film looks like it has been censored and re-edited, with the 81m MA15+ actually running longer than the 80m R18+ version.

06/09: BRÜNO Film (DVD for 35mm) R18+ (Sexual activity and nudity)
06/09:BRÜNO  (DVD for 35mm) MA15+ (Strong sex scenes and nudity, crude humour and coarse language)

In the US the film was originally rated NC17 (usually equivalent to our R18+), but was re-edited for an R-rating (usually equivalent to our MA15+) with a warning of 'pervasive strong and crude sexual content, graphic nudity and language'.

The UK has reportedly passed the censored US R-rated version with an 18-rating with a warning that it contains 'strong sex and sex references'. The running time is 82:32. Here is what they had to say about the film.

BBFC
BRÜNO Feature Film 
Classified 17 June, 2009 
BRUNO is a satirical comedy in which Sacha Baron Cohen plays gay Austrian fashion show presenter Bruno, who falls into disgrace and travels to the States in an attempt to achieve fame. This film was classified '18' in accordance with BBFC Guidelines, for strong sex and strong sex references. At '15', the Guidelines state that 'sexual activity may be portrayed but without strong detail. There may be strong verbal references to sexual behaviour'. Both the scenes of strong sex and the sex references were considered by the Board to go beyond the '15' level, but acceptable at the adult '18' category. There are three strong sex scenes in the film. The first one features a montage of exaggerated sexual activity, including Bruno being anally penetrated by a dildo on a long rod attached to an exercise bike, which his boyfriend is pedalling. Other details include implied anal penetration with a fire extinguisher hose, as well as with a champagne bottle, and sight of a vacuum pump being used on Bruno's scrotum. The second shows Bruno comically miming fellatio and anilingus as he pretends to have oral sex with a deceased person with whom he is in contact through a medium, while the third scene features sex between couples at a swingers' party, with sexual detail obscured.

We could be wrong but we suspect that our R18+ was the NC17 version. Whilst the MA15+ version is the censored US R-rated print. The Classification Board  passed it the day after the BBFC gave it an 18-rating. The running times do not exactly make sense 81m (Aus) vs. 82:32 (UK), but if there is one thing we have learnt it is not to trust the Classification Board's database. Just compare how much information the BBFC gives, an exact running time and an explanation of the reasons for the rating, to what we are told in Australia.

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LET SLEEPING CORPSES LIE: Australian Release!

One of our favourite films has finally been released in Australia thirty-one years after it was banned by our censors. Four years after it was made Jorge Grau's THE LIVING DEAD AT MANCHESTER MORGUE was picked up for Australian distribution by Roadshow. Unfortunately the Classification Board banned it due to excessive violence, a censored print was never submitted, and the film went unreleased on VHS in Australia. To be fair we think this could have scored an uncut R18+ as far back as the early 80's, however no distributor picked up the rights.

Now on its thirty-fifth anniversary it has been released on DVD by Umbrella Entertainment. This time the censors were much more lenient skipping the R18+ altogether and instead going for an MA15+ (Strong horror violence and drug use) rating. It's out now under its alternative title LET SLEEPING CORPSES LIE.

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Censor Flashback: TAKE ME (1991)

The early to mid-90's saw a number of Hong Kong Category 3 rated titles run into problems when submitted to the Australian Censors. This newly created rating had seen the filmmakers ramp up the sex and violence content, sometimes combining both which at the time was the quickest way to get an RC rating in this country. Some of the titles that ran into problems included ANGEL DELIGHT (1992), THE DEMON WET NURSE (1992), DIARY OF A SERIAL KILLER (1995), DON'T STOP MY CRAZY LOVE FOR YOU (1993), DR LAMB, THE FRUIT IS SWELLING (1997), LABORATORY OF THE DEVIL (1992), RAPED BY AN ANGEL (1993), THE RAPIST (1994), REBEKAH (1996), and ROBOTRIX (1991). All were later censored and rated R18+ before playing Chinese language cinemas. Our database contains details of each one.

Another title that went down the banned, censored, R18+ route was the 1991 comedy TAKE ME. This lost around four minutes of footage before being passed. We have now updated the database entry to include Matt's review where he manages to pin down exactly what the Classification Board objected to.

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DYING BREED Poster Complaints 

 1. Complaint reference number 499/08 
2. Advertiser Hoyts Cinemas 
3. Product Entertainment 
4. Type of advertisement Print 
5. Nature of complaint Violence Other –section 2.2 
6. Date of determination Wednesday, 10 December 2008 
7. DETERMINATION Dismissed 

DESCRIPTION OF THE ADVERTISEMENT 
This print advertisment from Hoyts Cinema for the movie "Dying Breed" includes an image of a meat pie which is broken with the insides spilling out. The contents include an eye, finger, teeth, hair and liquid. Below the image is the movie title and the words "Every body has different tastes". The movie classification (MA15+) is also included. 

THE COMPLAINT 
A sample of comments which the complainant/s made regarding this advertisement included the following: 

This advertisement is nauseating. It is unnecessarily gruesome and disturbing. This newspaper must realise that this ad would shock and disgust the average person. There should be more stringent rules disallowing this type of advertising. Obviously the guidelines aren’t strict enough if advertising like this is cleared for publication. 

I have never complained about any form of adverising before, however my seven year old was subjected to this unsavory image when he went to check a movie time, which I strongly object to. I think the violence depicted in this advertisment is going "too far", and is actually offensive. I have no objection per say with people watching movies in the genre of Saw, Wolf Creek and Hostel, however, would rather my children and myself not be exposed to such gross imagery in the public domain. 

Overtly graphic and disgusting. Alarming and scary for children and adults. Disgusting linkage of dead bloody body parts being part of a meat pie which could be eaten. The ad has a sub comment "every body has different tastes" suggesting that everybody likes to eat dead body parts out of a meat pie and suggesting that each or every "body" tastes different. Both suggest cannibalism and murder and dismemberment - not a message or graphic that should be promoted in the community. 

It is extremely violent and in a newspaper even a child can pick it up. 

Because it is very distasteful and on the same page as cinemas advertising childrens films. A picture depicting human body parts - teeth, eyes, blood falling out of a food item is offensive and stomach churning. I don't want to be confronted with these sort of images when I am looking through a 'family' newspaper. 

THE ADVERTISER’S RESPONSE 
Comments which the advertiser made in response to the complaint/s regarding this advertisement included the following:

The film is a horror film and all materials contain the OFLC censorship advice. The artwork is supplied by the films producers for use to promote the release –we work with the materials supplied. Coincidentally the advertising campaign for this film is over. 

THE DETERMINATION 
The Advertising Standards Board (“Board”) considered whether this advertisement breaches Section 2 of the Advertiser Code of Ethics (the “Code”). 

The Board considered the application of Section 2.2, relating to violence. The Board noted that the advertisement related to a horror film with an “MA 15+” classification. The Board considered that the image would be disturbing to some people, but also noted the image was in black and white, which lessened its impact. 

The Board considered the graphic nature of the image was directly relevant to the film advertised and the depiction was justifiable in the context of that product. The Board therefore found no breach of Section 2.2 of the Code. 

Finding that the advertisement did not breach the Code on other grounds, the Board dismissed the complaint.

Update 4th July 2009
Refused-Classification.com

Australian Censorship News   
8th June 2009

SEXY POKER: Banned in Australia

The second game of 2009 to be banned is Gameloft's SEXY POKER.

The reason given was "nudity as an incentive or reward to interactive game play".

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Censor Flashback: CAGED FURY (1989)

For this censor flashback we go to 1996 when Bill Milling's 1989 women-in-prison feature CAGED FURY was banned for a second time by our censors. A butchered VHS release finally appeared in 1997. We've always wondered what was missing, so many thanks to Simon for sending in the list of cuts.

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Advertising Standards Bureau: October - November 2008 Complaints 

1. Complaint reference number 376/08 
2. Advertiser Madman Entertainment 
3. Product Entertainment 
4. Type of advertisement Cinema 
5. Nature of complaint Discrimination or vilification Sexual preference – section 2.1 
6. Date of determination Wednesday, 8 October 2008 
7. DETERMINATION Dismissed

DESCRIPTION OF THE ADVERTISEMENT 
This online advertisement is in the style of a short documentary which runs through scenes of movies and comments from actors and other people in the entertainment business. The scenes shown include car crashes and explosions, nude women, people being shot and other scenes from horror films. It opens with a screen that has: "NFP - Not for poofters". It runs for 2 minutes 12 seconds. 

THE COMPLAINT 
A sample of comments which the complainant/s made regarding this advertisement included the following:

In the opening scenes, the movie trailer (ad) brings up a screen showing 'film classification board', which then underneath says 'NFP' in large letters, followed by 'Not For Poofters'. 

THE ADVERTISER’S RESPONSE 
Comments which the advertiser made in response to the complaint/s regarding this advertisement included the following: 

NOT QUITE HOLLYWOOD is a documentary on Australian genre cinema that consists of clips from films that pushed the boundaries of censorship and good taste in the early 70s - mid 80s. 

The offending "NPA" classification was not produced exclusively for my film - it appears on the head of the 1972 production, "The Adventures of Barry McKenzie". 

The aim of the NQH trailer was to provide a shortcut to the sensibility of the documentary. It is a film that strives to irreverently explore Australian attitudes to sexuality, racism and homophobia (among many other topics). I believe the inclusion of this classification helped achieve this. As the writer/director of NQH it was not my intention to offend Australia's gay population by including this graphic - just as I assume it was not Barry Humphries aim when he created this satirical faux film classification. 

THE DETERMINATION 
The Advertising Standards Board (“Board”) considered whether this advertisement breaches Section 2 of the Advertiser Code of Ethics (the “Code”). 

The Board considered the application of Sections 2.1, relating to discrimination and 2.5, relating to language. The Board noted the complainants’ concerns with the classification shown in the advertisement, “No Poofters Allowed”. 

The Board noted that the reference was historically relevant to the films that the advertisement related to. The Board noted the tag line used was an in-joke in keeping with the context of the documentary being advertised, and was a direct reference to the fictional film "The Adventures of Barry McKenzie". However, the Board agreed that viewed as a still screen in isolation, the wording was offensive. 

A minority of the members of the Board considered that the inclusion of the text 'No Poofters Allowed' was discriminatory. However the overwhelming majority considered that the advertisement was not in breach of Sections 2.1 or 2.5 of the Code on the basis that it was clear the text was to be understood as cultural satire in the context of 1970s Australia genre films. 

Finding that the advertisement did not breach the Code on other grounds, the Board dismissed the complaint.

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SAW V: Bus Advertisement

Last year we reported that SAW IV had been the subject of complaints regarding the poster art. Then the ASB upheld the complaint, while in the case of SAW V it was dismissed. Check out the SAW IV poster and ASB report to compare the two cases.

1. Complaint reference number 440/08 
2. Advertiser Hoyts Cinemas 
3. Product Entertainment 
4. Type of advertisement Transport 
5. Nature of complaint Other - Causes alarm and distress 
6. Date of determination Wednesday, 12 November 2008 
7. DETERMINATION Dismissed

DESCRIPTION OF THE ADVERTISEMENT 
The advertisement for a movie "Saw V" appears on the back of a bus. The text reads "Saw V only at the movies October 23". It depicts a man whose head is inside a metal framed glass box. He appears to be attempting to remove the box from his shoulders. 

THE COMPLAINT 
A sample of comments which the complainant/s made regarding this advertisement included the following: 

I was stuck in a traffic jam for at least 30 minutes directly behind this bus with my 7 year old daughter and we were forced to look at it. No one in our family watch horror films - we actively CHOOSE not to allow these images to enter our minds. I felt that our right to CHOOSE was taken away from us that we ourselves we tortured having to look at this image. There was no where else to look, no where to turn off the road and we were simply stuck. This film is rated MA15+ and should not be allowed on the back of a bus. 

This is a highly emotional add. It is not appropriate for all members of society, not only is it upsetting but it illustrates all too clearly what human beings are capable of doing to one another. The image is real, a photograph as apposed to a cartoon which adds to the distress and discomfort felt while viewing the add. I would not be as upset if this image was shown during the later hours of the evening or in a domain where people can choose to see this sort of thing or not, however the fact that this image is plastered on the back of a bus for all to see is not only unnecessary but bad taste. People should not have this sort of footage forced upon them. 

THE ADVERTISER’S RESPONSE 
Comments which the advertiser made in response to the complaint/s regarding this advertisement included the following: 

Please find attached a copy of the artwork that appeared on the busback. I've also attached another option which we refrained from using (SAW5_Teaser_Poster.jpg). This is the most conservative artwork we have used on all four Saw titles to date. The poster communicates what it does. Inference is subjective. I think most people would agree this is a very soft approach for the 'horror' genre. 

THE DETERMINATION 
The Advertising Standards Board (“Board”) considered whether this advertisement breaches Section 2 of the Advertiser Code of Ethics (the “Code”). 

The Board noted the complainants' concern about the graphic images used in this transport advertisement.  

The Board noted that Section 2.2 of the Code provides that 'advertisements shall not present or portray violence unless it is justifiable in the context of the product or service advertised.' The Board noted that the advertisement is for a horror movie that is for mature adult audiences. In the context of the particular movie the Board considered that a certain level of graphic horror image was justified in the advertisement. However the Board noted that, as a billboard, the advertisement is visible by a broad audience including children and young adults under the age of 15 and that the advertisement should not be inappropriate for that audience. The Board viewed the advertisement and considered that it was not particularly clear what was depicted. While the image was apparently meant to indicate violence towards a man, the image was not necessarily likely to be understood by those who saw the advertisement. The Board considered that these images were not strong and were not inappropriate for an outdoor advertisement where there was an unrestricted audience. 

The Board determined that the advertisement did not breach Section 2.2 of the Code as it did not depict an inappropriate level of graphic violence, considering the product advertised. Finding that the advertisement did not breach the Code on other grounds, the Board dismissed the complaint.

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Senate Estimates: Graffiti and Porn Mags, Customs, and Police

Last week saw Donald McDonald appear before Senate Estimates to be questioned by the usual bunch of religious wowsers. Guy Barnett,  Julian McGauran, and Steve Fielding were all present, only Barnaby Joyce was missing. The entire session focused on the availability of unrated porn magazines in stores such as 7-Eleven.

This is linked to a group called Kids Free 2B Kids who launched an anti-porn campaign in September 2008 which has so far seen Coles and BP drop adult magazines.

Julian MCGauran and Barnaby Joyce first questioned the Classification Board about this during the October 2008 Senate Estimates. Since then the Board have released a monthly Publications Enforcement Bulletin which lists titles that may be in breach of classification enforcement laws.  It warns that:

The sale of submittable publications1 is an offence in all Australian jurisdictions under State and Territory classification enforcement laws. Unless or until submittable publications have been classified by the Classification Board it is an offence to distribute and/or sell them. The sale of classified publications which carry incorrect classification markings is also an offence in all Australian jurisdictions.

Donald McDonald claims to this year have used his powers to call in 48 adult publications, 5 graffiti magazines, and 387 films. To our knowledge only one graffiti magazine has been banned. That was issue 8 of DIRTY DEEDS which was rated RC in January.

McGauran also claims that:

"as soon as you open up the jacket it is child pornography"

We are talking titles such as 18 EIGHTEEN, CHERI TEENS, FINALLY LEGAL, LIVE YOUNG GIRLS, PURELY 18, and YOUNG AND WILD. All are pornographic magazines from the US, and although some of the titles may sound dubious, they are not child porn. Does he really expect us to believe that in 2009 anyone in the US would produce and distribute such a magazine?

This is an extremely interesting session which shows the chain of enforcement from the Classification Board, to the Police, and finally to Customs. You come away with the conclusion that the Police and Customs quite rightly regard the (in the words of Julian McGauran) "filth that is infiltrating the public arena" to be of a low concern when compared to more important investigations.

The full unedited question and answers are as follows.

The Senators doing the questioning are:

Senator Julian McGauran Vic Liberal 
Senator Guy Barnett Tas Liberal
Steve Fielding Vic Family First

Those providing the answers are:

Mr Donald McDonald, Director of the Classification Board
The Hon Trevor Griffin, Deputy Convenor Classification Review Board
Ms Amanda Davies, Assistant Secretary Copyright and Classification Policy Branch

Title LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE
25/05/2009
ATTORNEY-GENERAL’S PORTFOLIO Classification Review Board
Database Estimates Committees
Date 25-05-2009 
Source Senate Committee 
Name LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE 
Place Canberra 
Department Attorney-General’s Department |
Page 57 
Status Proof 
Program Classification Review Board 
Reference Estimates 

Questioner
CHAIR
Senator BARNETT
Senator FISHER
Senator McGAURAN
Senator FIELDING 

Responder
Senator Ludwig
Mr McDonald
Mr Griffin
Mr Wilkins
Ms Davies 

LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE - 25/05/2009 - ATTORNEY-GENERAL’S PORTFOLIO - 

Classification Review Board Classification Review Board

CHAIR —I welcome representatives from the Classification Board and the Classification Review Board. We will examine these agencies together. I invite you to make an opening statement?

Mr McDonald—Thank you for the opportunity to make an opening statement. I want to take this opportunity at the outset to update you with a few facts and figures about the board’s work this year and to mention progress since we last appeared before you in October of last year. As you would be aware, the Classification Board is an integral part of the national classification scheme and cooperative arrangement between the Commonwealth, states and territories.

The act under which we are established requires that, in appointing members to the board, regard is to be had to the desirability of ensuring that membership of the board is broadly representative of the Australian community. Since we last met, five new board members have been appointed and two others reappointed. Those new members come from Western Australia, New South Wales, the ACT and the Northern Territory.

In recent years the board has processed over 7,000 applications per annum for classification and classification-related services. The board makes its decisions about the classifications of films, publications and computer games in accordance with the act, the national classification code and classification guidelines, which are statutory instruments.

In this financial year to the end of April the board has received 5,710 applications. This includes applications for classifying around 4,000 films, 872 computer games and 163 publications. There is evidence of a decline in this year’s applications to date, although not a large one, and time will tell whether this is yet another instance of the impact of the global financial crisis or due to some other causes. In making its decision, the legislation requires that the board must reflect community standards, which means the standards of morality, decency and propriety that are generally accepted by reasonable adults. In every instance the board takes this duty most seriously.

During the current year, the new authorised television series assessor scheme commenced. Starting on 1 January, this new scheme complements the other industry-based schemes where authorised persons are enabled to make recommendations to the board about likely classifications of different product types. From 1 January, this also includes television series which have been screened on Australian television and which are commonly known as boxed sets. So far 25 people have been trained and 73 applications have been submitted under the scheme.

Senator BARNETT —On 1 January this year?

Mr McDonald —Yes, Senator. Looking forward to the next financial year, another new industry-based scheme will commence on 1 July. That scheme, known as the advertising scheme, will enable authorised and trained industry assessors to assess the likely classification of an unclassified film or computer game so that it can be advertised together with classified material before it is classified. The scheme will come with appropriate training courses and safeguards.

I also briefly mention developments since the October 2008 Senate estimates hearing when some senators raised concerns about certain publications. Since that time the board has increased its focus in this area and this year to date has investigated 119 publications. This, in turn, has led to increased monitoring of serial classification declarations, which are declarations made by the board that the classification of one publication applies to future issues, usually for 12 or 24 months. Where breaches of these declarations are found, the classification is being revoked.

Some of these magazines had RC, that is to say refused classification, content; that is, they featured people who were under 18 in a way that would cause offence to a reasonable adult. These publications have been reported to law enforcement agencies. In addition, I have continued to use my power to call in material for classification. If material is unclassified and I have reasonable grounds to believe that it should be classified in accordance with the legislation as it pertains to publications, films and computer games, I am able to require that it be submitted within three days.

This year I have called in, among other things, 48 adult publications, five graffiti magazines, and 387 films. I will continue to use this power in circumstances where I believe it is warranted. I should also mention that the board works with the three officers of the classification liaison scheme, who travel around Australia and check compliance with classification laws while also educating industry about those laws. During this financial year I have asked these officers, among their other tasks, to buy adult magazines that are sold in unrestricted premises, such as petrol stations and news agencies.

Senator BARNETT —Excuse me, Mr McDonald, could you repeat that last part?

Mr McDonald —Yes. I have asked the officers of the classification liaison scheme, among their other duties, to buy adult magazines that are sold in unrestricted premises, such as petrol stations, and news agencies. The board is using these magazines to more closely monitor whether distributors are complying with the serial classification declaration scheme. I am also using these magazines, and others sent in by members of the public, to call in unclassified publications for classification.

Finally I should note that the board is not charged with the responsibility of enforcing classification laws. Its primary role remains to classify the many thousands of publications, films and computer games that it must classify every year. 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 in cooperation with enforcement agencies and protect the integrity of the classification scheme. Thank you, Senators. I look forward to answering your questions.

CHAIR —Thank you, Mr McDonald.

Mr Griffin —Madam Chair and Senators, can I offer an apology for Ms Victoria Rubensohn, who is the recently appointed convenor of the Classification Review Board. Unfortunately she has an examination to sit at the University of Sydney and is therefore unable to be here today. I have been the deputy convenor since April 2004 and I have sat on most of the classification reviews since about that time as well as attended Senate estimates committees. I thought it was important to offer her apology for her inability to be her today.

CHAIR —Thank you very much; that is appreciated.

Senator BARNETT—Chair, I do not want to intervene at great length at the moment, but there is a bit of a trend that has been set today in terms of this particular department and in terms of relevant officers not being available. But thank you for advising us, Mr Griffin.

CHAIR —Given Mr Griffin’s eminent qualifications—

Senator BARNETT—There is a very strong trend. I think it is in four out of five agencies so far the relevant executive officers have not been present.

Senator FISHER —Yes.

Mr Griffin —I made the apology with some trepidation, having heard the earlier apology.

CHAIR—Yes, and I will just put on the record again that there are some very valid reasons here that are quite unique and have not occurred certainly in my last 15 months of chairing estimates. Mr Griffin, I am sure that with your eminent background you will be able to answer these questions just as well. I have every confidence in that. Let us go to questions.

Senator McGAURAN—In your opening statement you said that while it is not the responsibility of the board to enforce, is it not the responsibility of the board to, if you like, monitor and police? What do you mean by enforcement? Do you mean lay charges?

Mr McDonald —No.

Senator McGAURAN —I would have thought it was your responsibility to follow up and check up on your classifications.

Mr McDonald —With respect, Senator, it is not. That is the responsibility of state and territory police forces.

Senator McGAURAN—So on all occasions, the complaints, such as Kids Free 2B Kids, should be directed to the police first, and not to your organisation?

Mr McDonald—No, not at all, Senator. We take all contact from the public very seriously and deal with the material that people bring before us. It is extremely useful to us to hear from members of the public their concerns about material. We take that seriously and we examine that material.

Senator McGAURAN —If you find it to be in breach?

Mr McDonald—If we find it to be in breach, if it has been subject to a serial classification and it is in breach of that serial declaration, we will revoke the declaration and advise the enforcement authorities; that is to say, the state police, in the main. On the other hand there is material that comes to us from members of the public which has not been classified at all. Similarly, we advise the enforcement authorities of that material.

Senator McGAURAN—If I ask about that specific case, I am trying to understand that really you play with a dead hand over all of this. The best example yet of the serial breaches that are occurring out there, or the racket that is occurring out there, is Ms Gale, who self-titles as a housewife in the suburbs and runs the Kids Free 2B Kids, finding out all these things. It is for her to monitor, to follow up, and to bring that to your attention. She is the one who has triggered all this and has brought these enormous numbers of breaches—or, as I call it, a racket—to your attention. It is not within your power or your resources to ever at any time uncover this racket by the pornographers?

Mr McDonald —It is not within the duties of the Classification Board but the department may have some comment on that.

Mr Wilkins—I can perhaps just point out, Senator, the arrangement between the states and the Commonwealth, which has lasted some considerable time now, has the Classification Board and the Commonwealth basically responsible for the classification of publications. Enforcement of and compliance with those rules is a matter for the states and particularly the state police. That is how the system works and has worked for a long time.

If the complaint is about classification, the right place to bring it is to the Classification Board. If the complaint is about the compliance with classifications that have been made, then the right place for it to end up is with the state police. What Mr McDonald is saying is that if matters come to our attention—whether it is to the Classification Board or whoever in the Commonwealth—and through liaison officers some non-compliance is seen, that is referred to the state police. They are the people who appropriately should take action.

Senator McGAURAN —The call-in notices to the distributors? What distributors?

Mr McDonald —Not to many.

Senator McGAURAN —No.

Mr McDonald —I have the figures here, Senator. I have called in 11 publications in 2008 and 37 in 2009, and I am just getting for you the response, which was pretty pathetic, actually. Senator, rather than delay you now, can I take that on notice? But I can tell you there was very little response from the calling in.

Senator McGAURAN —Having taken it on notice, are you able to identify the distributors involved?

Mr McDonald—Even that is a shadowy world. For background, the publications we are talking about are overwhelmingly entirely printed overseas. We are not having problems of this sort with Australian publishers. These are magazines that are imported—many of them two and three years after the original date that is on the cover. They are imported by not just one distributor but by several distributors, so what is called parallel importing is going on.

The issues may not even be exactly the same: for instance, there have been cases where one of these distributors has submitted a publication for serial declaration with pages removed and otherwise treated. Then we have later found in this last year issues of apparently the same magazine, imported by somebody else, as far as we can determine, that is not the same as the original issue that we classified. This might lead you to think that serial declaration classification is a flawed scheme. I think it works on trust, and we are finding out who can be trusted and who cannot be trusted.

In the main, the Australian publishers can be trusted. They have some issues where they sail very close to the wind. We talk to them about those issues and they live within the declaration. But the imported material, I have formed the view, is not an entirely suitable range of products to which a serial classification should apply.

Senator McGAURAN —When it is imported, in crates or however, it is non-classified then, is it not? How does that work? Does Customs do it?

Mr McDonald —Yes. What happens at that point would be a matter for Customs, who are among the enforcement agencies that we deal with. It is not for me to speak for them or to defend them, but Customs and the police clearly have many priorities in respect of crime. They do not necessarily find these easy matters to pursue in comparison with their other priorities.

Senator McGAURAN—Just on the same theme, have you had any or many, and if so how many, state police notifications to you or complaints to you? You say it is the state police who have to enforce this. If they are enforcing it, you would be kept abreast of it. How much of that is going on?

Mr McDonald—The police do not report back to us. The police might seize the publication that they are concerned about in some sort of raid and they could submit it to us—in other words, make an application to us for classification. In respect of adult publications, that would happen extremely rarely. We do have other sorts of material referred to us by state police and by customs, but not in the adult publication area very often.

Senator McGAURAN —So the state police are doing nothing. You mentioned community liaison officers.

Mr McDonald —Community liaison officers, yes.

Senator McGAURAN —What are their duties?

Mr McDonald —They are employees of the Attorney-General’s Department in the classification operations branch.

Senator McGAURAN —They go out and check?

Mr McDonald —Yes. There are three of them for the whole country, Senator.

Senator McGAURAN —Under resourced, do you believe, for such a job?

Mr McDonald —It is a matter for other people to determine those priorities, not for me.

Senator McGAURAN—Has there been any complaint to you about 7-Eleven? We know the major service stations, to their absolute credit—BP and Shell to name two—have withdrawn all these publications because of the racket in the jackets; that is, the publication is classified as one thing, and then as soon as you open up the jacket it is child pornography.

Mr McDonald —Yes.

Senator McGAURAN —Have you had any complaints that 7-Eleven has refused to withdraw these category 1 magazines?

Mr McDonald—Again, that is not within my sphere of influence, Senator. 7-Eleven may be among the stores selling these publications; I am sure they are. But there is no mechanism under my responsibilities for me to have a direct relationship with retailers or chains of retailers.

Senator McGAURAN—I thought perhaps Kids Free 2B Kids, for example, may have brought it to your attention. They have certainly brought it to the attention of 7-Eleven. They have listed the category 1 magazines which you have now de-classified—you know, the classics. Purely 18, for example, is the one that was caught up the most. It has been brought to the attention of 7-Eleven that they are selling that magazine, and Shell all the major service stations have withdrawn it and you have withdrawn it, and 7-Eleven have written back and said that it has category 1 on the jacket. They believe that is all right and they continue to sell such a magazine. I have a letter here from the 7-Eleven national franchising manager.

Mr McDonald—I have not seen copies of the correspondence to which you refer, but it would in any case be a matter for the state and territory police.

Senator McGAURAN —Yes, to enforce. But when these matters are brought to your attention you then notify the state police.

Mr McDonald —I do.

Senator McGAURAN —As you have with the previous complaints?

Mr McDonald —Yes.

Senator McGAURAN —Would you not then notify the state police to investigate 7-Eleven’s recalcitrance?

Mr McDonald—That is another chain. Our chain of responsibility is in respect of classifying or revoking a classification of a publication and informing police of that.

Senator McGAURAN —Would you inform the police of that if you thought 7-Eleven was selling illegal magazines—if the evidence was put to you?

Mr McDonald —I would not withhold the information. I do not have it.

Senator McGAURAN—That is what you have been doing up until now. I do not know why you are reluctant on this one. After my complaints and Kids Free 2B Kids complaints you have duly followed it up. Why would you not duly follow this up?

Mr McDonald—I think I have already said that I have not seen the letter to which you are referring. I have not seen any correspondence from the 7-Eleven franchise.

Senator McGAURAN—All right. Perhaps I will write directly privately. I will not table it, but I will definitely give it to the Classification Board.

CHAIR —You will follow it up in a private capacity?

Senator McGAURAN —Yes, with the Classification Board.

Senator Ludwig —Has it been referred to the state police? Quite frankly, I have a concern if we are talking about lawful publications.

Senator McGAURAN —No.

Senator Ludwig —To any relevant jurisdictions?

Senator McGAURAN —No, it has not.

Senator Ludwig—Maybe in writing to the Classification Board. Mr McDonald, you might also do the latter as well and bring it to the attention of the state police

Senator McGAURAN—Possibly so. That seems to be the chain. Let us not divest ourselves of the responsibility the Classification Board has. There is a racket going on here. It is being gang pressed into doing something, if not necessarily by Mr McDonald. But if the previous meeting we had here some time ago in estimates is any example—and I am glad to see that the Classification Board has acted upon that—there was a tremendous amount of dragging of feet initially.

CHAIR —Is that all the questions you have, Senator McGauran?

Senator BARNETT —I assume he is reserving his right.

Senator McGAURAN —I am reserving my right.

CHAIR —Senator McGauran, is that all the questions you have?

Senator BARNETT —He is reserving his right.

CHAIR —Have you finished for the moment?

Senator McGAURAN —Yes.

Senator BARNETT—It seems Mr McDonald—and indeed the minister and Mr Williams—that we have a system failure currently before us where we have pornographic material being sold in corner stores, newsagencies and service stations all around Australia. These are publications which should be refused classification. In fact, they are publications which have an RC—refused classification—and they are continuing to be sold. We have had the example of Julie Gale who bought those 28 publications and sent them in to you, and you have outlined or responded to some of that. But we have a system failure. You are acknowledging that today. You are saying that it is up to the law enforcement agencies, which are state and territory agencies, and ministers and that, indeed, the police commissioners are responsible.

I understand that the Minister, Bob Debus—and please confirm if this has occurred—has written to his state counterparts and the state police commissioners. Perhaps Mr Wilkins or the minister can advise. I understand it is an acknowledgment of system failure. He has written to say, ‘Let’s fix the system. Let’s see what we can do to fix it.’ Perhaps you could advise when, where and how that occurred and the content of that letter. If that is the case, there is an acknowledgment at a federal level that we have a system failure, that young kids and adults are buying a publication that has been refused classification and yet it is continuing to be sold. We have a system failure. Could we perhaps have a response from the government to start with?

Senator Ludwig —Thank you. It is a serious matter. I highlight that as well. I can advise that the Minister for Home Affairs has taken an interest in addressing this matter. He sought the cooperation of police commissioners and ministers to address the issue. He also raised compliance and enforcement of publications at the 7 November 2008 meeting of the Ministerial Council for Police and Emergency Management. In addition, on 4 February the minister wrote to all police commissioners and the Queensland Commissioner of Fair Trading seeking their assistance in giving increased priority and adequate resources to the enforcement of classification offences. As of 11 May, five commissioners have responded.

Senator BARNETT —Which five?

Senator Ludwig—I do not have any detailed knowledge of this particular matter other than what I have provided. I can ask Mr Wilkins to see if he can add to the information we have at hand. If not, I can always seek additional information from the Minister for Home Affairs and provide it to the committee.

Senator BARNETT —He has written to the police commissioners and his relevant counterpart in each state?

Senator Ludwig—I am advised that he has written to the police commissioners and the Queensland Commissioner of Fair Trading, who has a role in enforcing classification laws in Queensland.

Senator BARNETT —But has he written to his ministerial counterparts in each state and territory?

Senator Ludwig —I understand it was copied to the ministers.

Senator BARNETT —And you will take on notice the responses that have come back?

Senator Ludwig —Yes.

Senator BARNETT —You have said there are five and you will let us know which five.

Senator Ludwig—First of all I said I will see whether Mr Wilkins can provide any additional information to the committee in terms of the question you have asked and the general matter. In addition, if that does not satisfy the committee’s primary question, I am happy to take that on notice as well.

Senator BARNETT—The threshold question is: do you acknowledge and has the minister in his letter acknowledged, or at a public level that perhaps I have missed, that we have a system failure here where this type of material is being sold through these shops and corner stores?

Senator Ludwig—I am only familiar with what you have described to date. I can say personally that I am very concerned about it. I will get Mr Wilkins, who has some knowledge or at least has been familiar with this material before, to provide additional information to the committee.

Mr Wilkins—Just going to the question of systems failure, I think that is rather too strong a word. But the minister in his letter certainly says that he has concerns about the level of compliance and asks that more attention be given to that by state and territory police. I think the idea of system failure is too strong a word. In fact, after matters were raised in this chamber by some of the senators here steps were taken by the minister. This is one among the several measures to try to get higher penalties in terms of customs regulations, which is in train, and working through the Standing Committee of Attorneys-General to try to get a more uniform approach to this, as well as the letters that he has been sending to police commissioners—

Senator BARNETT —We will come to SCAG in a minute. I have SCAG on the horizon.

Mr Wilkins—But you asked what was being done. In response to questions I think raised in this place last time, Mr McDonald has said the matters were raised with the Classification Board and it took action on that as well. I am not sure that the concept of a system failure is not too strong a word.

Senator BARNETT—That is my interpretation of it and I stand by it. I appreciate your responding. I am happy for you to take this on notice. Could we please have a copy of the letter that the minister sent.

Mr Wilkins —I think that will probably be okay, but I need to check with the minister to see if he is happy with that.

Senator BARNETT —Of course. Thank you.

Mr Wilkins —You wanted to know which commissioners have responded.

Senator BARNETT —Yes.

Mr Wilkins—So far, we have had letters back from Western Australia, South Australia, of course, the AFP, the Northern Territory and Victoria.

Senator BARNETT —That is only three states.

Mr Wilkins —The territories are responsible for this too.

Senator BARNETT—But there are six states and the Northern Territory and the AFP. Who are we missing? We are missing New South Wales, Tasmania, Queensland and the ACT.

Mr Wilkins —Yes.

Senator BARNETT—That letter was written on 4 February. It is now mid-May. That indicates to me, and I think perhaps to others, the level of seriousness with which some of those states are dealing with this matter. That is a matter for them, of course.

I refer to the SCAG meeting of 17 April. I have the communique that came out of that meeting. I refer specifically to point 2, which you touched on Mr Wilkins, regarding classifications of publications and films, compliance and enforcement. It states that ministers considered proposals to improve compliance with the National Classification Scheme for offensive publications and films and asked officers to develop detailed proposals for reform in this area. Where are we up to? What has happened? How much progress has been made? This has been an ongoing issue. I have raised it at most estimates hearings in which I have been involved over several years. I know that for other senators, such as Senator Fielding, Senator McGauran, Senator Joyce and many others representing their constituents from all around Australia, this has been an ongoing issue. What progress has been made, apart from a letter being sent to commissioners?

Mr Wilkins —There are a number of things being taken care of, and I have already foreshadowed some of them. All the ministers agreed to examine actions in their relevant jurisdictions to facilitate prosecution of classification offences. As I said, the Commonwealth is looking at strengthening regulations in respect of customs matters. 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. The minister has considered options to strengthen harmonised classification offences and penalties. That is rather a tall order. But officers are to develop detailed proposals to reform serial classification declarations to reduce their abuse. As I said, the minister has also written to commissioners. There is a working party which is to develop relevant proposals in relation to consultation with law enforcement agencies about how to do that. But there are quite a lot of things occurring on this front, actually.

Senator BARNETT—I appreciate that feedback. But I use the Latin words, res ipsa loquitur—the facts speak for themselves. In terms of dealing with what I call a system failure, it appears to me that we have not progressed a great deal. I go back to Mr McDonald. Thank you for advising in your introductory remarks the number of publications called in. I think you said there were 48 adult publications, five graffiti publications and 300 films. Could you please take it on notice to advise the names of those?

Mr McDonald —Of all those products?

Senator BARNETT —Yes. You have also indicated that you have investigated—

Mr McDonald —You would like titles of those 387 films. I would be happy to provide them.

Senator BARNETT —And the adult publications—and I think you said graffiti publications.

Mr McDonald —Yes.

Senator BARNETT —You also indicated that you have investigated 119 publications over the past 12 months. Can you identify them on notice?

Mr McDonald —Certainly.

Senator BARNETT—Senator McGauran has rightly pointed out that we have an issue with the distributors. Clearly they are not responding to your requests. You must be pulling your hair out. What can you do about it?

Mr McDonald —Absolutely nothing, other than to advise the police and—

Senator BARNETT—That is further evidence of system failure where you request these distributors to respond and you are getting absolutely no response.

Mr McDonald —Well, you are calling it a system failure. I think it would be helpful to define which part of the system is failing.

Senator BARNETT —You have put out a request and you are not getting an answer.

Mr McDonald —And having not got an answer, I then advise, as I am obliged to do, the law enforcement agencies responsible.

Senator BARNETT—I have a comment here from Mr Davis, who says that since July last year the Classification Board has referred over 200 adult publications to law enforcement agencies. Is that correct?

Mr McDonald—I will provide you with a schedule of all of the classification publications that we have advised the law enforcement agencies about. It would be of that order at least.

Senator BARNETT —At least?

Mr McDonald —Yes.

Senator BARNETT —So you will advise us how many? Can you advise us their identity?

Mr McDonald —Yes.

Senator BARNETT —Can you advise us which enforcement agencies you have referred them to?

Mr McDonald —Yes. All of the state and territory police or, in the case of Queensland, the Office of Fair Trading.

Senator BARNETT—All right. What about the response? Do you follow up and do you find out what has happened to these publications? In terms of law enforcement, do you have any follow-on or follow-up to know exactly what is happening?

Mr McDonald —Police are not obliged to inform us of any action they take.

Senator BARNETT—I know they are not obliged, but do you follow up? Do you find out? Do you monitor court proceedings? Do you know if you are making any progress in nailing these people who are allowing this filth to penetrate the public arena?

Mr McDonald—I preside over a body that is called the ‘Classification Board’, and that is what we do. I do not want to use what may seem a vainglorious analogy, but a court does not follow up what happens after it finds against somebody. That is not within our remit, nor certainly within my powers.

Senator BARNETT—That is again further evidence of system failure from my perspective, but you are responding from your perspective, and I appreciate that. I have some questions regarding computer games and the classification of computer games in the R18+ category. But other senators, like Senator Fielding, may have other questions.

Senator FIELDING—I am happy to make a start in this area. This might be a dumb question, but have any laws been broken in regard to pornographic material being sold at corner shops, milk bars and petrol stations?

Mr McDonald—Yes, there have been publications sold which have never been classified or which have carried a serial classification declaration for category 1, which permits them to be sold in a sealed plastic bag in an unrestricted premises, but which on the opening of the plastic bag and on examination proved to be category 2, which means they should be sold only in restricted premises. On that level, yes, the law is being broken, and not infrequently.

Senator FIELDING —Is it a federal law or a state law?

Mr McDonald —It is a state law.

Senator FIELDING—We do not seem to be getting very far in cracking down on this issue given what we have just heard and how you have explained it. You have certainly written and the responses are, frankly, pretty slow and sloppy given the serious nature of the breach. It is pornographic material. Mr Wilkins might be able to help in answering this question. Given the seriousness of the breach, have you or the department recommended anywhere that we should have a federal law so that we are not beholden to the states in cracking down on pornography being so readily available in corner shops and milk bars and so that we can get on with it and use the AFP? We can send the federal police into the Northern Territory but we cannot send them in to deal with pornography being sold in milk bars, corner shops and petrol stations. I find that absurd. Anyone listening to this today would find it absurd that we are beholden to the states when we could pass a federal law with penalties for selling this sort of material in our local communities.

Mr Wilkins—Some support has been given to that proposition. There are some constitutional constraints, but it may be possible for the federal government to do that. The big issue is whether we are going to basically run police forces that enforce that. We would have to grow the police forces significantly to do this job.

Senator FIELDING—I am not sure. That is a separate issue. At the moment we are not following through and there seems to be no penalty given. I think at the federal level, certainly in the case that you have in front of you, being beholden to the states to react in their own fair time is ludicrous. We should have a federal law that can be policed with some penalty, even if it is financial, to stop this so readily happening. You are clearly being played here. You are a soft touch and you are saying that the parliament of Australia is soft on this issue. Putting up with the states on this issue is not fair to Australian families, who are clearly concerned about this issue. Was it raised at SCAG having federal laws in place with severe penalties, even financial ones, to stop this from happening and getting to the issue?

Mr Wilkins —The question of more severe penalties was certainly raised at SCAG.

Senator FIELDING —Were federal laws raised?

Mr Wilkins—No. But we have a cooperative scheme which has lasted since 1996 and before that, and it has worked quite well in relation to a whole range of issues. The question here is partly about raising penalties. But, most significantly, it does not matter if you raise penalties if those penalties are not enforced. The real question is about enforcement. It is about having people out on the streets enforcing the laws. It comes down to enforcement issues at the end of the day.

Senator FIELDING—It is not a matter of enforcement; it is actually applying penalties. Quite clearly this breach has occurred and no-one has actually copped anything.

Mr Wilkins —But you have to go and enforce. You have to collect the evidence and take the people to court.

Senator FIELDING —You already have evidence showing that some people have breached the law. The evidence is there.

Mr Wilkins—I am not sure that it is evidence that is there. This is a technical issue. But the police need to collect the evidence, lay the charges and take people to court. The federal parliament can pass all the laws it likes, if no-one is going to enforce them it is meaningless. You need both adequate penalties and enforcement as well.

Senator FIELDING —Wrappers are another issue. Who stipulated that wrappers should be placed on these materials?

Mr McDonald —It is in the legislation.

Senator FIELDING —Federal legislation?

Mr McDonald —Yes.

Senator FIELDING —What does it say has to be on the wrapper? What is stipulated to be on the wrapper?

Mr McDonald—It is part of the cooperative legislation. For category 1 it is a label that says: ‘Restricted category 1. Not available to persons under 18 years.’

Senator FIELDING—Does the distributor’s name and contact details have to appear on the wrapper so that they can be easily contacted, knowing that there have been some problems in the past with this?

Mr McDonald —I cannot answer. Can we take that on notice?

Ms Davies—Under the current legislation, the requirement is that the classification marking—that is, category 1 and the restriction to adults—be listed, but there is no requirement regarding who the distributor is or contact details.

Senator FIELDING —Do you think it would be helpful to have that on the front for people to be held more accountable?

Ms Davies—It is certainly one of the sorts of issues that the officers are looking at in terms of taking proposals back to ministers—what information should be available on the outside of the cover—yes.

Senator FIELDING —When you say that is being looked at, where is that being discussed?

Ms Davies—That is part of the work that censorship ministers asked officers to do in terms of bringing back proposals for further changes in this area. So that will go back to censorship ministers, to SCAG.

Mr Wilkins —That list of issues that I explained to Senator Barnett came out of SCAG.

Senator FIELDING—Is this something we could do at the federal level—that is, introduce some requirement that you cannot sell these things unless the wrapper shows the distributor’s name and contact details?

Mr Wilkins—Possibly. But if we start doing that unilaterally the problem will then be that state and territory police and jurisdictions may not continue to play ball in terms of the cooperative scheme, which would mean that this whole issue of enforcement that I explained to you would become very problematic indeed. We would prefer to do it cooperatively under the scheme rather than just unilaterally using the federal law. But that is a possibility, maybe.

CHAIR —It is 3.30 pm, so it is time for our scheduled afternoon tea break. We will reconvene at 3.45 pm.

Proceedings suspended from 3.31 pm to 3.45 pm.

CHAIR—Senator Fisher, we are dealing with the Classification Board and the Classification Review Board. Do you have any questions for these people?

Senator FISHER —No.

CHAIR—That concludes our questioning. There are no other senators here to ask you questions and Senator Fielding has said that he will put the rest of his questions on notice. Thank you very much for your time this afternoon.

[3.50 pm]

***

Dirty Magazines and The Australian Federal Police

Senator Guy Barnett followed up on from the previous days questioning of the Classification Board by asking Tony Negus of the Australian Federal Police what they were doing about the spread of dirty magazines around Australia.

LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE - 26/05/2009 - ATTORNEY-GENERAL’S PORTFOLIO - Australian Federal Police 

Australian Federal Police

Senator BARNETT —It is open for others, perhaps, to speculate in terms of the reason the increase is so significant. Why don’t we move to another matter. Yesterday we had evidence from the Classification Board regarding the proliferation of pornography and filth through our corner stores, petrol stations, small shops, milk bars and that sort of thing, and that this is happening with regular occurrence around Australia. One of the reasons for this occurring was the fact that there is inadequate enforcement by the states and territories and, indeed, by police around the country. Indeed, there is a whole range of other reasons, notwithstanding that the Classification Board have refused classification to many of the materials, the pornographic and other offensive materials that are in existence in these corner stores, petrol stations and the like. I am wondering what the Australian Federal Police is doing to assist in combating what I have described as a systems failure, where young kids and adults can access this material when clearly it has been refused classification and should not be publicly available. I would like to get a response, if possible, from the perspective of the Australia Federal Police, knowing, also, that Bob Debus, the federal Minister for Home Affairs, has written a letter which he tabled yesterday to you, Mr Keelty, dated 4 February 2009. I have that letter before me. He says in that letter:

I am writing to seek your cooperation in addressing low levels of compliance by retailers and distributors with classification enforcement laws.

He says that he wants to give:

... an increased priority and adequate resources to the enforcement of classification offences and I seek your assistance in achieving this.

I was wondering if you can let us know how you have responded to that and the issue before us.

Mr Negus —The responsibility, really, for the enforcement of this rests with states and territories, as you have already articulated. When that letter was received from the minister it was certainly forwarded to our ACT command, who do have the responsibility, as a state or territory police force, to administer that. But really the AFP is not in a position to be enforcing those laws across Australia with regard to local milk bars or service stations.

Senator BARNETT—So what role does the AFP have, if any, in terms of combating this type of filth that is infiltrating the public arena in Australia?

Mr Negus—At the moment the bulk of our activity focuses on online activity, and we are certainly doing a lot of work in that area to ensure that children are protected and that child pornography particularly is pursued vigorously by the police. At present we do not have a role as far as regulating the sale of offensive material in places like milk bars and service stations.

Senator BARNETT—I will come to the online activities shortly. We were advised yesterday that the minister had received a response from you. Can you advise if that is correct, and can you provide a copy of that letter if possible? I am happy for you to take that on notice.

Mr Negus—I am sure we did respond and, from memory, I think that I actually authored that letter. We referred that to the ACT community policing area, which does have responsibilities in the ACT for enforcement. I also articulated in that letter that the AFP, on a federal level, do not have the resources or the capability to respond. As you would be aware, we are based in the major capital cities of Australia. We do not have a presence in regional or rural Australia across the broad range of different areas where this may be available so it is not particularly practical for us to be involved in the broad enforcement of this type of crime.

Senator BARNETT—Sure, I understand that. We were advised yesterday—I stand to be corrected if it were otherwise—that WA, South Australia, Victoria, the AFP and the Northern Territory commissioners are the states that have responded to that letter which was written on 4 February. It is noted and appreciated that those states and entities obviously considered this with some priority, but it is now mid-May and, sadly, it would appear that the New South Wales, Queensland and Tasmanian police commissioners have not responded. I am aware that a copy of that letter went to the relevant police ministers as well. I consider that a great and grievous disappointment. This is a very serious matter—it is considered serious according to the minister. It was written on 4 February, and we still do not have a response from those states. No doubt that will be pursued in other areas.

What measures are you undertaking to combat offensive material online via gaming measures—internet and the like—at this time?

Mr Negus—As you are aware, we do have the high tech crime operations area in the AFP. They have been very active in a range of different crime types across the internet. In fact, I think I briefed this estimates committee last time that they have made in excess of 300 arrests in the child pornography area over the last 12 months or so. For things like online gaming we are working with industry. We have a meeting in Sydney tomorrow with key communications authority personnel to look at what we can do further in that area. The online gambling area is a difficult area, and we continue to work with industry to make sure that it is properly policed.

Senator BARNETT —Whose responsibility is online gambling? Is it yours, or state and territory police?

Mr Negus —There are Commonwealth offences for which the AFP has responsibility for enforcement.

Senator BARNETT —What sort of offences are we talking about?

Mr Negus —I might have to take that on notice and come back to you with a suite of offences that would be available.

***

Dirty Magazines and Australian Customs

Next for Senator Guy Barnett  were two representatives  of Australian Customs, Michael Carmody, Chief Executive Officer and Sue Pitman National Director, Trade. Some interesting information to come out was that in the period 2007-2008 there were 630 detections of objectionable material involving 10,441 individual items. From this there were fourteen prosecutions, six of which were for child abuse material. 

LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE - 26/05/2009 - ATTORNEY-GENERAL’S PORTFOLIO 

Senator BARNETT —No, I have three other areas that I do not think will take too long. Mr Carmody, yesterday we had discussions with the Classification Board. I am not sure whether you are aware of those discussions, but obviously it involved Customs to some degree and a good deal of concern was expressed about the pornography, filth and other offensive material being made available in petrol stations, general stores, 7/11s and the like all around Australia, notwithstanding the fact that some of the publications had been refused classification. Have you received advice from the Classification Board relating to publications subject to those call-in notices that have been found to contain material that should be refused classification?

Mr Carmody—Madam Chair, to put that into context, this came under the broad heading of a serial classification that has been provided by the Classification Board in respect of publications that are then wrapped and given that category—I think category 1, Senator Barnett. The matter was brought to the attention of the Classification Board by Free to Be Kids. Under the serial classification what was contained in the wrappers was not a priority 1 classification but in fact RC documents. They referred those matters to the various state police.

Senator BARNETT —Yes, the various state and territory police ministers and the Australian Federal Police.

Mr Carmody —Yes.

Senator BARNETT—A February letter from Minister Bob Debus to each of those state and territory police ministers expressed his concern and asked them to use all available resources within their power to act upon it. You are a key enforcement agency at a customs level so I am interested to know what you are doing about it.

Mr Carmody —What our role is?

Ms Pitman —Generally speaking, our role is to reflect the domestic restrictions or classifications. We receive advice from the Classification Board about the relevant classifications and we apply that at the border. Referring to your specific question, I would need to confirm that we have received that advice, as I do not have it here.

Senator BARNETT—You can take that question on notice. Can you give us feedback relating to what sort of success you are having in stopping this type of material getting into Australia?

Ms Pitman —I have some detection figures that I could give you. Whether or not it is exactly the same material I could not say.

Senator BARNETT —That is okay; fire away.

Ms Pitman—For example, in 2007-08 there were approximately 630 detections of objectionable material involving 10,441 individual items, and 14 prosecutions followed from that.

Senator BARNETT —How many?

Ms Pitman —Fourteen, including six for possession of child exploitation material.

Senator BARNETT —How many of those were successful?

Ms Pitman —I apologise, as I do not have the success rate in front of me.

Senator BARNETT —You can take that question on notice.

Ms Pitman —Yes.

Senator BARNETT—Can you also take on notice and give us a breakdown of the type of material that you have apprehended? Can you give us some more detail about the nature of the 14 prosecutions?

Ms Pitman —I think we will take that question on notice and provide you with what information we can.

Senator BARNETT —That is 2007-08. What about the figures for 2008-09? Do you have the latest figures for us?

Ms Pitman—I am afraid I do not have the figures for the number of detections in 2008-09, but I do have a figure of 27 prosecutions conducted, including 20 for possession of child exploitation material.

Senator BARNETT —That figure has jumped a bit, has it not?

Ms Pitman —Yes.

Senator BARNETT —Is that in the period from 1 July through to April? What period is that for?

Ms Pitman —This document is dated 25 May 2009.

Senator BARNETT—Can you confirm that on notice and fill in the rest of the details? Frankly, that jump in figures should give rise to some concern—in particular for the child exploitation material.

Ms Pitman—I do not have a broader assessment in front of me. Obviously Customs takes it seriously and prosecutions are pursued where we can.

Senator BARNETT —Could you also take that question on notice? Have you received advice from the Classification Board regarding distributors who have been unwilling to respond to the call for the publications to be referred to the board for classification? I said that the board chairman was probably pulling out his hair because he was annoyed that distributors were not responding to his request to send in these publications for assessment and classification.

Ms Pitman—I am afraid I cannot confirm that at the moment. However, I can take that question on notice and we can provide that information to you.

Senator BARNETT —I draw it to your attention and seek your response. This is an important matter. If these distributors are known to the Classification Board, they should also be known to Customs. I assume that these are the same people or entities that are perhaps bringing them in. Obviously they should be apprehended and their efforts should be thwarted.

Ms Pitman —They might well be known to us, but I just cannot confirm that. I will need to take that question on notice.

Senator BARNETT —Would Mr Carmody concur with that assessment?

Mr Carmody —I would have thought that it was important information for us, yes.

Senator BARNETT —I would be disappointed and disturbed if you had not been advised by the Classification Board. That is a question we did not ask them yesterday, but I hope that they advised all relevant enforcement agencies of the identity of the distributors of these publications. In your view, are there any obstacles to the effective enforcement of regulations and current law relating to this material getting in?

Ms Pitman —I am not aware of any.

Senator BARNETT —Mr Carmody?

Mr Carmody —I echo that statement.

Senator BARNETT —Are you taking any other steps apart from your usual practice to ensure that the material does not get in?

Ms Pitman —Our usual practice relies heavily on intelligence and information sharing with the Classification Board. You would be aware that we also conduct a broad range of interventions at the border relating to cargo. Some of those might also lend themselves to the detection of this material.

Senator BARNETT—Can you describe for us what successful measures you have put in place? I assume that you also get intelligence from the police as well as the Classifications Board.

Ms Kelley—Yes, we do. We have a number of what we call computer forensics tools that we use at both airports and other locations to interrogate computers and other electronic devices.

Senator BARNETT —When you say ‘both airports’ what do you mean?

Ms Kelley —In airports.

Senator BARNETT —You said in airports?

Ms Kelley—In airports. When we get other detection we are able now to interrogate some of those electronic devices. That is one of the reasons for our increase in prosecutions this year.

Senator BARNETT—You have obviously identified the amount of material that has been detected. Do you have a view on how much has not been detected?

Mr Carmody —We do not have any.

Senator BARNETT —You could not say that you believe you are apprehending 10 per cent or 50 per cent of the material that is entering Australia?

Mr Carmody —I do not believe that we are in a position to do that.

Senator BARNETT —If you were could you take that question on notice? If you thought that you could—

Mr Carmody —I could take that question on notice, but I do not think the answer will be any different to what we have stated.

Senator BARNETT—Okay. Are you aware of any amendments that are currently being drafted with regard to customs regulations to increase penalties for the import of commercial quantities of objectionable material?

Ms Pitman —No.

Mr Carmody —No.

Senator BARNETT —Are you aware of any amendments to customs regulations regarding the import of objectionable material?

Mr Carmody —I am not aware, but we could take that question on notice to see whether we can inform you of any developments.

Update 8th June 2009
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