******

It has been Senate Estimates this week in Canberra. Des Clark and his staff were there to explain some of the more recent OFLC decisions. Brian Harradine was absent due to ill health. His place was taken by Julian McGaurin of the Victorian National Party. It was McGaurin who was behind the push that saw SALO banned. The following exchange between McGaurin and Senator Joseph Ludwig (Qld, Labor Party) is worth highlighting.

Senator McGAURAN—........ But moving on, Madam Chair, many years ago I was involved in a movie called Salo, which was eventually banned.
Senator LUDWIG—Did you appear in it?
Senator McGAURAN—Pardon?
Senator LUDWIG—You said you were involved in it.
Senator McGAURAN—I was involved in getting it banned.
Senator LUDWIG—I see.  

The speakers for the following discussion are:

Senator Christopher Ellison (WA, Liberal Party)
Senator Linda Kirk (SA, Labor Party)
Senator Julian McGaurin (Vic, National Party)
Senator Joseph Ludwig (Qld, Labor Party)

Mr Des Clark, OFLC Director
Mr Paul Hunt, OFLC Deputy Director
Mr John Robinson, OFLC Business Manager

Office of Film and Literature Classification
Mr Des Clark, Director

LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE: Office of Film and Literature Classification: Discussion

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

CHAIR—Welcome, Mr Clark.

Senator Ellison—Madam Chair, I was going to say that this is a spot normally reserved for Senator Harradine, who is, unfortunately, not with us due to ill health.

CHAIR—We do miss Senator Harradine, I agree.

Senator Ellison—I am sure Mr Clark will too.

CHAIR—I have a feeling that we may now more than make up for his absence.

Senator Ellison—I think so. I have got that funny feeling. I just thought there was some aspect of nostalgia that we do not have Senator Harradine here tonight.

CHAIR—Indeed, particularly if we had renamed ‘special expert procedures’ ‘sexpros’, as I was keen to do earlier this evening.

Senator KIRK—In 2004-05 there was additional funding of $0.3 million that I understand was to reflect the workload increase due to Operation Auxin.

Mr Clark—It was $270,000 because of the additional workloads that are coming out of Operation Auxin.

Senator KIRK—What workload increase did you experience as a consequence of that operation?

Mr Clark—We had a significant increase in the number of applications. A lot of those applications were subsequently withdrawn, but Mr Hunt does have the specific figures in terms of the decisions that were made by the classification board in relation to the operation.

Mr Hunt—We initially received just over 1,000—I think it was 1,004—applications. As Mr Clark said, a significant number were withdrawn for a number of technical reasons. At the end of the day, the board made 333 classification decisions and issued a further 299 evidentiary certificates.

Senator KIRK—Was the $270,000 funding that you received enough, or more than enough, to finance those increases in applications?

Mr Clark—That was sufficient to meet the increase in classifications.

Senator KIRK—How many films, computer games and videos were considered by the office in this last financial year?

Mr Hunt—In the 2003-04 financial year?

Senator KIRK—Yes.

Mr Hunt—Do you want a total breakdown of all decisions by the board? Would you like them broken into films and games?

Senator KIRK—You might be able to take them on notice. I wonder if also used you can give us the figures from 2004-05 until the current date.

Mr Hunt—Yes, Senator.

Senator KIRK—That would be helpful; thank you. Will the information that you give us set out the numbers that were refused classification as well as those that were approved?

Mr Clark—Yes, it does.

Mr Hunt—Those figures are in our annual report, including the numbers refused.

Senator KIRK—Have you recently introduced a new classification scheme for computer games? Is that a new introduction?

Mr Clark—There is not a new scheme. The recent legislative amendment amalgamated the markings and classifications for computer games and films so that they will appear the same. The markings and classifications will be the film classifications that have been used up until now. Essentially, the biggest difference is that G8 will be called PG, and it continues to be that there is not an R classification for computer games.

Senator KIRK—How is that different scheme for computer games working?

Mr Clark—That scheme commences on Thursday of this week.

Senator KIRK—So you will be able to tell me when we speak next time.

Mr Clark—We certainly will, and we are looking forward to that.

Senator KIRK—I have some questions about the Classification Review Board in relation to appointments. How many new appointments have been made in this financial year?

Mr Clark—Two new appointments and one reappointment have been made.

Senator KIRK—What is the process for appointment of members to the Classification Review Board?

Mr Clark—The Office of Film and Literature Classification does not in fact conduct the process. That is conducted by the department, so Mr Govey may wish to provide an answer to that.

Mr Anderson—My recollection of the process that was followed for the recent appointments was that it was notified on the web sites of both the department and the Office of Film and Literature Classification that there was to be a process. Some people put in applications as a result of that. The committee comprised a representative from the Attorney-General’s Department; a representative from the ACT government, as it happened, on behalf of the state and territory classification ministers; the convener of the Classification Review Board; and a member of the Attorney’s office. A shortlisting process was followed, interviews were carried out in addition to some experiential testing and then recommendations were made to the Attorney. The Attorney then also consulted with state and territory classification ministers before the appointments were made.

Senator KIRK—Did you mention that any of the existing members of the board were members of the committee?

Mr Anderson—The convener of the board was a member of the committee.

Senator KIRK—How long does that process take from the time it is advertised on the web site through to the appointment of the new members?

Mr Anderson—We interviewed in late November or early December last year. I believe they had been on the web site in around October. I could take that on notice to check the exact dates. The appointments were made comparatively recently: obviously there is that need for considerable consultation between the different jurisdictions.

Senator KIRK—In the advertising, are there particular criteria that are listed that would make an applicant worthy of appointment? I am thinking about whether there are various skills, past experience or work skills that might be listed.

Mr Anderson—The act itself gives some direction as to what is required. Obviously, there is a need for members of the board to be able to operate in a group to review material and to be able to engage in discussions with other group members. Certainly, demonstrated community involvement is something that is required. To the extent that is possible, it is desirable to have a range of demographic and geographic coverage. So, based upon the applicants of course, it would be desirable to have coverage from as many different areas of Australia—from people with children, people without children, people who are mature adults and people who are younger; that sort of thing.

Senator KIRK—Are the positions advertised as part time or full time?

Mr Anderson—The positions were not strictly advertised in the sense there were not press advertisements, although the positions were placed on the web sites. The positions were not notified as being part time or full time because the review board only gets together when there is an application to the review board. It is fairly rare. I think there are around 10 applications a year to the review board concerning films, and a few concerning games. So there are relatively infrequent occasions when the board needs to convene to consider an application.

Senator KIRK—How is remuneration paid to the board members?

Mr Anderson—There is an annual stipend that is paid.

Senator KIRK—Does that vary according to the number of meetings they may need to have?

Mr Anderson—I do not believe so. It varies; the convener receives a slightly higher stipend.

Senator KIRK—But I imagine allowances are paid for travel and the like.

Mr Anderson—That is correct.

Senator KIRK—I was interested to learn of the number of matters that the review board considered and the number in which classification was either refused or approved. Could you take that on notice and provide us with that information?

Mr Clark—That information is in the annual report.

CHAIR—Do you have any questions, Senator McGauran?

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

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

Senator McGAURAN—Demeaning to the victim?

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

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

Mr Clark—Yes.

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

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

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

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

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

Mr Clark—It says it is high in impact

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

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

Senator McGAURAN—Like a documentary?

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

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

Mr Clark—It could be.

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

Mr Clark—That is correct.

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

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

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

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

Senator McGAURAN—So your judgments are made on fiction—

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

Senator McGAURAN—Okay.

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

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

Mr Clark—The board did not.

Senator McGAURAN—The board.

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

CHAIR—Thank you, Minister.

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

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

Senator McGAURAN—Do you have a casting vote?

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

Senator McGAURAN—Do you have a casting vote?

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

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

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

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

Mr Clark—Sorry, it was a unanimous decision.

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

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

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

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

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

Mr Clark—That is the problem—

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

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

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

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

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

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

Senator McGAURAN—It is a joke!

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

Senator McGAURAN—Offensive answers.

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

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

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

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

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

Mr Clark—It depicts a very violent rape scene.

Senator McGAURAN—Do you think it was implied?

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

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

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

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

Mr Clark—I agree.

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

Senator LUDWIG—Did you appear in it?

Senator McGAURAN—Pardon?

Senator LUDWIG—You said you were involved in it.

Senator McGAURAN—I was involved in getting it banned.

Senator LUDWIG—I see.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Senator McGAURAN—And you agree with that?

Mr Clark—Yes, Senator, I do.

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

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

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

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

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

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

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

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

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

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

Senator McGAURAN—Barring sidetracks—

CHAIR—Whose—yours or ours?

Senator McGAURAN—Probably mine—20 minutes.

CHAIR—Could we review that in 10?

Senator McGAURAN—Yes.

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

CHAIR—That would be very helpful to the committee.

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

CHAIR—Absolutely.

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

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

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

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

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

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

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

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

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

Mr Clark—Yes, correct.

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

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

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

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

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

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

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

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

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

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

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

CHAIR—Senator, Mr Clark is answering your question.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Senator McGAURAN—To whom?

CHAIR—To the convener of the review board.

Senator McGAURAN—To answer that question?

CHAIR—Yes.

Senator McGAURAN—It was a statement.

Senator LUDWIG—You cannot make a statement.

CHAIR—We actually deal in questions and answers here.

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

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

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

Senator Ellison—We will take that on notice.

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

Mr Clark—Do you mean 9 Songs?

Senator McGAURAN—Yes.

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

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

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

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

Mr Clark—No, the X classification says:

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

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

Senator McGAURAN—I have not finished.

Mr Clark—I apologise.

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

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

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

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

CHAIR—Your actual question, Senator McGauran?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CHAIR—I see.

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

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

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

Mr Clark—No.

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

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

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

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

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

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

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

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

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

CHAIR—One.

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

CHAIR—How will I tell the difference?

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

Mr Clark—No.

Senator McGAURAN—You did not?

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

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

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

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

CHAIR—Senator McGauran—

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

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

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

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

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

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

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

Mr Clark—I think the simple answer is no.

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

Mr Clark—I will assist the committee—

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

******

Following on from the last update, John Murphy (ALP for Lowe), has again been asking questions on behalf of the Religious Right.

Date: 23 May, 2005
Database: House Notice Paper
Number: 29
Session: Budget (2005)
Source: House

QUESTIONS IN WRITING

On the first sitting day of each fortnight, a complete Notice Paper is published containing all unanswered questions. On subsequent days, only new questions for the sitting are included in the Notice Paper. The full text of all unanswered questions is available at:

www.aph.gov.au/house/info/notpaper/qons.pdf.

*1403 MR MURPHY: To ask the Attorney-General—

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

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

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

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

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

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

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

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

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

******

The full Review Board reports have just been released for THE GORE GORE GIRLS and IN A GLASS CAGE.

******

This brings to five the number of films they have had banned this month.

******

The ACS have been busy recently with two reports of confiscations. DVD's of ANTHROPOPHAGOUS: THE BEAST and ENTRAILS OF A BEAUTIFUL WOMAN have both been taken. Keep those reports coming!

******

ABA News Release
NR 55/2005
19 May 2005

ABA finds Triple J broadcast inappropriate and gratuitous language and failed to respond to complaint

The Australian Broadcasting Authority has found that the Australian Broadcasting Corporation breached the ABC Code of Practice 2004 by using inappropriate and gratuitous language on the Triple J Breakfast Show and failing to to provide a response to a complaint.

On 10 February 2005, the ABA received a written complaint alleging that the Breakfast Show broadcast on the ABC’s Triple J network on 23 November 2004, used inappropriate language. The complainant also alleged that the broadcaster failed to respond to his complaint.

The ABA determined that the broadcaster:

The ABA notes that in response to the breach finding, the ABC has taken the following steps:

The ABA considers these actions address the compliance issues raised by the investigation and will continue to monitor the broadcaster's performance in this regard.

A copy of the investigation report is available on the ABA website at www.aba.gov.au.

***

ABA News Release
NR 60/2005
27 May 2005

Correction to ABA investigation report into Triple J breach

On the 19 May 2005 the Australian Broadcasting Authority published a report on its web site about an investigation into the use of inappropriate and gratuitous language on the Triple J Breakfast Show.

The report wrongly attributed the inappropriate and gratuitous language to Mr Wil Anderson, described in the report as ‘WA’. This attribution was based on information provided to the ABA by the broadcaster in submissions made in the course of the investigation. The ABA has since been advised of this mistake. The ABA apologises to Mr Anderson for this error in attribution of the comment and has corrected it in the report. The corrected report is now available on the ABA web site

******

ABA News Release
NR 57/2005
23 May 2005

ABA finds Desperate Housewives promo breached TV code

The Australian Broadcasting Authority has found that Channel Seven (Sydney) Pty Ltd, the licensee of commercial television service ATN Sydney and Channel Seven (Adelaide) Pty Ltd the licensee of commercial television service SAS Adelaide, breached the Commercial Television Industry Code of Practice 2004, by broadcasting a program promotion classified M during sporting coverage.

In February and March 2005 the ABA received four complaints regarding the broadcast of a promotion for the M classified program Desperate Housewives on ATN and SAS.

The promotion was shown throughout the Seven network and was broadcast during the men's final of the Australian Open Tennis tournament after 8:30pm on Sunday 30 January 2005. The depiction of concern was one in which a female character was implied to have committed suicide. The promotion was preceded by a visual and audio warning that the promotion was classified ‘M’.

The period from 8:30pm is generally an M classification zone, however the commercial television code provides that, during certain programs, including live sporting events, program promotions must comply with the PG classification requirements. This is in recognition of the fact that, during such broadcasts, children are likely to comprise a higher percentage of the viewing audience than would generally be the case at this time. Additional safeguards are therefore needed to ensure material is suitable for younger audiences. The relevant code provisions are clauses 3.11 and 3.12.

Seven Network Ltd had acknowledged that the broadcast of M classified material was in breach of the code and had apologised to complainants. The complainants had, however, come to the ABA to further express concern about the suitability of the promotion material, particularly the treatment of suicide themes, for broadcast during a program in which large numbers of children were likely to be viewing.

The ABA is aware that suicide is a matter of considerable concern in the Australian community, and believes that particular care is necessary in dealing with this subject matter. This is especially the case at times when children are likely to be viewing.

The ABA therefore asked Seven Network Ltd to take further action to ensure that clause 3.11 is understood by network staff. This action included giving an undertaking to the ABA that Seven Network Ltd would provide the investigation report along with an explanation of the ABA’s findings to staff and implement information sessions across the network to discuss provisions of the code relating to the placement of promotions, particularly with regard to restrictions in G and PG programs. The ABA requested Seven Network Ltd undertake this action within a six month period and report back to the ABA on its compliance.

Seven Network Ltd has accepted the ABA’s request for an undertaking. It has also advised the ABA that it took action soon after the promotion was broadcast and prior to the ABA’s investigation, to conduct training with promotions staff in scheduling requirements, particularly those under clause 3.11.

A copy of the investigation report is available on the ABA web site at www.aba.gov.au.

******

ABA News Release
NR 56/2005
19 May 2005

ABA finds 3CAT Geelong failed to respond to complaint

The Australian Broadcasting Authority has found that Geelong Broadcasters Pty Ltd, the licensee of the commercial radio service 3CAT Geelong, breached the Commercial Radio Australia Codes of Practice 2004 (the codes) by failing to to provide a response to a complaint.

On 21 February 2005, the ABA received a written complaint alleging that 3CAT had breached the codes by broadcasting matter that vilified Christians during the Morning Program of 20 December 2004. The complainant also alleged that the licensee failed to respond to his complaint.

The ABA determined that the licensee:

The ABA notes that in response to the breach finding, the licensee has forwarded an apology to the complainant together with an explanation of the action taken in regard to his complaint.

Noting that this is the first occasion on which the licensee of 3CAT has been found to be in breach of the complaints handling provisions of the codes, the ABA considers this action addresses the compliance issue raised by the investigation and will continue to monitor the licensee’s performance in this regard.

A copy of the investigation report is available on the ABA website at www.aba.gov.au

*****

ABA News Release
NR 59/2005
27 May 2005

New codes of practice for the Internet and mobile content

New community safeguards for the Internet and mobile telephone content are in place from today, with the registration by the Australian Broadcasting Authority of three new codes of practice for the Internet industry.

The three codes – one for Internet content hosts and two for Internet service providers – were developed by the Internet Industry Association. They replace the previous codes, registered by the ABA on 9 May 2002.

The IIA has developed the codes in response to recommendations contained in the Government’s May 2004 report on the operation of the co-regulatory scheme for Internet content, established under Schedule 5 to the Broadcasting Services Act 1992.

Content Code 1 and Content Code 2 aim to improve Internet users’ access to Internet safety tools and information. They require Internet service providers to prominently display relevant links on their home pages, and to provide regular updates on these matters during the year. ‘It is important that families have easy access to accurate and reliable information about managing the risks associated with the Internet, and ISPs have important roles to play in educating their customers,’ said ABA Acting Chair, Lyn Maddock.

Content Code 2 also contains rules for content delivered to mobile telephones with audio-visual capabilities. This code prohibits mobile content that is or would be classified RC or X, and requires access to content classified R or MA to be restricted to users who ‘opt in’ to such services and verify that they are 18 years of age or older. The content codes use the National Classification Code categories that apply to films, DVDs and computer games. This will help ensure consistent treatment of content across fixed and mobile entertainment platforms.

‘The ABA welcomes the initiative and co-operation demonstrated by mobile carriers in developing community safeguards that will help to encourage development and take-up of new content services on the mobile platform,’ said Ms Maddock. ‘The codes aim to ensure that regulation of mobile content is consistent with measures for traditional ‘fixed’ platforms, but provide flexibility for mobile network operators to develop measures and procedures that are compatible with their individual business models.’

The codes will complement the provisions to be set out in a service provider determination on the supply of premium rate services on mobile telephones, currently being developed by the Australian Communications Authority. The service provider determination and Internet industry codes will together provide interim safeguards for all mobile content, and mobile network operators have given the ABA written undertakings that they will comply with all requirements of the codes and determination.

The ABA understands the Government is preparing legislative reforms to establish a permanent regulatory framework for content delivered to mobile and other convergent devices.

Content Code 3 contains a process for dealing with overseas-hosted Internet content that has been the subject of a complaint to the ABA and found to be prohibited. Such content is notified to the makers of selected Internet filter products, which ISPs must make available to their customers at the time an account is opened, either directly or via a filter software portal maintained by the IIA.

The codes will operate for 12 months, at which time they will be reviewed to take account of developments in filtering technologies and any community concerns which arise during this period.

The codes are accessible on the ABA’s web site at www.aba.gov.au and on the IIA’s web site at www.iia.net.au.

Media contact Donald Robertson, ABA Manager Media and PR on (02) 9334 7980.

BACKGROUNDER

The ABA administers a ‘co-regulatory’ scheme for Internet content. The scheme aims to address community concerns about offensive and illegal material on the Internet and, in particular, to protect children from exposure to material that is unsuitable for them.

The scheme is established under Schedule 5 of the Broadcasting Services Act 1992, which gives the ABA the following functions:

John Murphy is the Labor member for the Sydney seat of Lowe (Drummoyne, Concord, Strathfield, Croydon, Haberfield). His question regarding the OFLC was undoubtedly made after lobbying by the Religious Right. As mentioned before, these groups are very well organised, and are on a mission to see censorship laws tightened in Australia. If you reside in the seat of Lowe and believe that John Murphy does not represent you, then send him a message.

Parliament House Contact
House of Representatives
Parliament House
Canberra ACT 2600

Tel: (02) 6277 4099
Fax: (02) 6277 8530
Email: John.Murphy.MP@aph.gov.au

Electorate Office Contact
Burwood Office:
Location/Postal Address:
185G Burwood Road
Burwood NSW 2134

Tel: (02) 9745 4433
Fax: (02) 9745 2825

QUESTIONS IN WRITING: Office of Film and Literature Classification

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

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

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

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

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

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

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

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

Answer

Mr Ruddock (Berowra—Attorney-General)—The answer to the honourable member’s question is as follows:

(1)  The members of the Classification Board are:

Des Clark (Director); Paul Hunt (Deputy Director); Wendy Banfield (Senior Classifier); Marie-Louise Carroll (Senior Classifier); Jeremy Fenton (Board Member); Alexandra Greene (Board Member); Robert Sanderson (Board Member); Rodney Smith (Board Member); Lynn Townsend (Board Member).

(2) The members of the Classification Review Board are:

Maureen Shelley (Convenor); Trevor Griffin (Deputy Convenor); Rob Shilkin (Review Board Member), Gillian Groom (Review Board Member), Kathryn Smith (Review Board Member) and Anthony Hetrih (Review Board Member).

(3) Subsections 48(2) and 74(2) of the Classification Act require that, in appointing members, regard is had to the desirability of ensuring that the membership of the Board is broadly representative of the Australian community. Subsections 48(3) and 74(3)) also require the Attorney-General to consult all States and Territories regarding appointments.

The Board as a whole is, to the extent possible, broadly representative of the Australian community.

Biographical information regarding the members of the Boards is published on the Office of Film and Literature Classification website (www.oflc.gov.au) and in the annual reports of the Boards. As this information indicates, members are drawn from diverse geographic areas, are of different ages and gender and have a diversity of life experiences and qualifications.

(4)  Under the Classification (Publications, Films and Computer Games) Act 1995 (the Act), the Board must make classification decisions in accordance with the National Classification Code (the Code) and the relevant classification guidelines (ie the Guidelines for the Classification of Publications or the Guidelines for the Classification of Films and Computer Games). Various provisions of the Act are also relevant for decision making.

The Code provides that classification decisions are to give effect, as far as possible, to the principles set out in the introduction to the Code. The Code also prescribes the criteria against which publications, films and computer games are to be classified.

The Guidelines for the Classification of Films and Computer Games (2003) have been determined under section 12 of the Classification Act and assist the Board to apply the criteria in the Code.

(5) The express purpose of the Act, as set out in section 3, is to provide for the classification of publications, films and computer games under the Commonwealth/State/Territory classification scheme.

A key principle underpinning the scheme is the application of Australian community standards to classification decision making.

First, the Boards are comprised of individuals so that the Board is, as a whole, broadly representative of the Australian community. Board members make classification decisions using the statutory framework of the national classification scheme and apply their understanding of community standards and the views of reasonable adults.

Secondly, Censorship Ministers ensure the tools used by the Boards (ie the National Classification Code and the Classification Guidelines) are reviewed and amended as appropriate to ensure that they remain current and continue to broadly reflect contemporary community standards. In accordance with the relevant intergovernmental agreement, such reviews include an opportunity for public input.

Thirdly, a number of mechanisms are used to keep Board members abreast of community standards, including consumer feedback on decisions and consumer research. In particular, the OFLC periodically engages independent researchers to convene Community Assessment Panels (CAPs) to gauge whether the classification decisions made by the Board align with contemporary community standards. In 2004, CAPs were convened in Alice Springs, Melbourne and Canberra. The independent report of that process found “the classification decisions of the Board generally reflect community standards”. This is consistent with the findings in respect of CAPs undertaken in 1997/98 (Sydney, Brisbane, Wagga Wagga) and 1999/2000 (Perth, Adelaide, Bendigo).

(6) Section 42 of the Classification (Publications, Films and Computer Games) Act 1995 provides that an application for review of a classification decision made by the Classification Board may be made by any of the following:

the Minister (ie the Australian Attorney-General) 

an applicant for classification of the film, computer game or publication

the publisher of the classified item, and

a person aggrieved by the decision.

The Act also provides that if a participating Minister asks the Minister (ie the Attorney-General), in writing, to apply for a review of a decision, the Minister must do so. Accordingly, a member of the public could e