Australian Censorship News: June 2007 - Part 1

UPDATES: 24th June 2007
MANHUNT 2 Controversy
ACMA ISP Content Filtering Tender
Classification Amendment (Terrorist Material) Bill Introduced
CONTENT SERVICES BILL: Senate to House
Restricting Aboriginal access to porn

UPDATES: 16th June 2007
NSW Council for Civil Liberties: Case Fails.
PEACEFUL PILL HANDBOOK: Banned in NZ
Disorderly Conduct: PG Problems
JACK'S POV 6: Censored 
V-Tech Rampage: MA15+.

UPDATES: 10th June 2007
CRUSH: RC 
DARK ANGELS 2: BLOODLINE: RC
DOUBLE JEOPARDY: Cut 
FACE FUCKING INC: Cut 
SUMMER SEX JOB IN GUADALOUPE 2: Cut
TITTY BABES: Cut 
PP 100% HOME GIRLS #46: Mod.
Censors vs. PENTHOUSE.
Liberals want music video ratings.
Rating Smoking in Films.
Terror Review Closes. 
April ASB Complaints.

UPDATES: 3rd June 2007
DOUBLE JEOPARDY: RC
SEX AND VIOLINS: RC
SUMMER SEX JOB IN GUADALOUPE 2: RC
DEBBIE DOES DALLAS AGAIN: Cut
INSPECTOR REX: Not PG
The OFLC @ Senate Estimates 

UPDATES
24th June 2007

MANHUNT 2 Controversy

The sequel to the controversial MANHUNT was always going to have problems in Australia.  However, before our Classification Board could even look at the game, in June 2007 it was banned by the British Board of Film Classification (BBFC), and the Irish Films Censors Office (IFCO). The decision of the U.S. Entertainment Software Rating Board (ESRB) to give the game an ADULTS ONLY (AO)* rating finally saw the distributor Take-Two Interactive put the release on hold.

* "Titles rated AO (Adults Only) have content that should only be played by persons 18 years and older. Titles in this category may include prolonged scenes of intense violence and/or graphic sexual content and nudity."

Consistency is usually not a censors strong point, so we usually never like to try and guess how the OFLC would react to a particular title. However in this case it would seem that Classification Board would have joined the BBFC, and IFCO in refusing the game.

MANHUNT was originally passed with an MA15+ (Medium Level Animated Violence) rating in October 2003. The Attorney General Philip Ruddock eventually referred it to the Review Board in August 2004, and they obligingly banned it the following month. So as you can see, MANHUNT 2 was already carrying considerable baggage even before our censors reviewed it.

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ACMA ISP Content Filtering Tender

The Australia Communications and Media Authority have released a tender to conduct a Tasmanian trial of content filtering products at the internet service provider level. The full media release can be found here.

The day before the ACMA tender was released the Attorney-General Phillip Ruddock had this to say.

"At the moment the internet is the biggest problem in this war and we are only going after people we can get our hands on, but that is changing," Mr Ruddock said.

"We are looking at ways and means of using technology that detects hate publications and removes them.

Quoted from:
Plan to block terror recruiting websites 
News.com.au 21.06.07

For a long time the Federal Government has resisted ALP and Family First calls for ISP content filtering. Now it would seem that they are warming to it. If this is the case then we are at the beginning of a slippery slope of ever increasing censorship. Do not think for a moment that terrorist website will be where this will stop.

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Classification Amendment (Terrorist Material) Bill Introduced

On June 21st the Attorney-General Phillip Ruddock introduced his CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) AMENDMENT (TERRORIST MATERIAL) BILL 2007. This will amend the Classification guidelines to RC material that the censors think promotes terrorism.

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CONTENT SERVICES BILL: Senate to House

With the support of the ALP the Communications Legislation Amendment (Content Services) Bill 2007 has moved from the Senate to the House of Representatives.

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Restricting Aboriginal access to porn

This week the government announced that it intended to crack down on Aboriginal access to porn in the Northern Territory. Currently the NT, along with the ACT are the only places in Australia where it is legal to sell X-rated product. Along with the other Government plans, it remains to be seen how this ban can, and will be implemented.

In the Senate on Thursday Senator Nigel Scullion, the Minister for Community Services had this to say.

"We will be banning the possession and use of X-rated pornography in these communities and in these areas."

The full text is as follows.

QUESTIONS WITHOUT NOTICE: Indigenous Affairs
Date 21 June, 2007
Database Senate Hansard
Questioner Boswell, Sen Ron (Leader of The Nationals in the Senate, NATS, Queensland, Government)
Responder Scullion, Sen Nigel (Minister for Community Services, CLP, Northern Territory)
Page 48
Proof Yes
Source Senate
Type Question

QUESTIONS WITHOUT NOTICE
Indigenous Affairs
Question
Senator BOSWELL (2.06 p.m.)—My question is to the Minister for Community Services, Senator Scullion. Will the minister update the Senate on the serious challenges confronting Indigenous communities in the Northern Territory and what the government is doing to protect the children in these communities?

Answer
Senator SCULLION—I thank Senator Boswell for his question and acknowledge his feelings of abhorrence of child abuse wherever it occurs in Australia. This issue is seen in exactly the same way in the eyes of every Australian. I rose in this place yesterday in response to an unsolicited question from Democrat Senator Bartlett and I made it absolutely clear that this government will stop at nothing to ensure that the protection of Indigenous people and their children in these communities remains a priority of the highest level.

This is no less than a national emergency. I am happy to inform the Senate that we will not be dealing with this in any other way than as a national emergency. We have had the cyclone of child abuse leave battered the minds and bodies of the most vulnerable of First Australians across the Northern Territory and very likely across the top of the entire Australian continent.

We have today announced a range of initiatives that deal with the emergency response in much the same way as we would with any other type of cyclone. We will first move to stabilise the communities in which this is happening, and then will we move to normalise them. In the most recent report, which is entitled Every child is sacred, one of the principle recommendations and recognitions in the report is that there is a very close association with substance abuse, particularly alcohol—the rivers of alcohol that run into Indigenous communities—that needs to be dealt with. The initiatives announced today indicate that in all Aboriginal lands in the Northern Territory described under the Aboriginal land rights act, and town camps and other Indigenous communities identified by the act, there will be no trafficking of any alcohol, there will be no consumption of any alcohol and there will be a total prohibition on alcohol, with the only exemption being for existing areas that are licensed under the liquor licensing act.

Today we have foreshadowed amendments to the welfare act that ensure that those persons who have been on welfare for more than a two-year period will have coupons for 50 per cent of their welfare payment. This will ensure that the safety and welfare of the family and the children are met. Of course, the future of these individuals is a function of school attendance and there will be announcements made in much the same vein with regard to welfare payments and school attendance. Also, every child in these communities is going to have a health check.

We will be acquiring these townships—the Commonwealth will compulsorily acquire some 50 townships. We will then move, under the Constitution, to ensure that compensation is paid on just terms. We will be providing extra police—10 police from every police force around Australia—to assist the Northern Territory with the provision of safety and law and order and to provide the same cover of law and order that we enjoy in all other parts of Australia. We will be assisting with the clean-up of the communities by ensuring that we have the Welfare to Work process. We will be banning the possession and use of X-rated pornography in these communities and in these areas. We will be abolishing the permit system as it applies to public roads and public areas within townships.

These are wide-ranging changes, and many will say that many rights will be trodden on. There is no doubt about that. But we fundamentally believe that it is the right to protection of the youngest and most vulnerable of our First Australians that should come first.

Question
Senator BOSWELL—Mr President, I ask a supplementary question. Could the minister further inform the Senate on initiatives to rid Australia’s Indigenous communities of child sex abuse?

Answer
Senator SCULLION—I thank the senator for the supplementary question. We will also be appointing administrators to these communities to assist in the governance of the communities. We are making broad based reforms. This is all about how the Commonwealth can assist in this emergency. On one of the most important issues and incentives required in this, we are formally referring the issues that were highlighted in this report and others to the Australian Crime Commission for investigation. It is a great tragedy in the eyes of every Australian that we get newspaper reports and we get the Every child is sacred report that identifies 45 communities across Australia and we know that there are paedophiles working within those communities. The frustration of it is that everybody knows it reflects the Australian view that these perpetrators need to be brought to justice. That is why all of these matters will be referred directly to the Australian Crime Commission.

***

Also on Thursday the Prime Minister, John Howard had this to say.

"We intend to ban the possession of X-rated pornography in the prescribed areas and we will check all publicly funded computers for evidence of storage of pornography."

The full text is as follows.

QUESTIONS WITHOUT NOTICE: Child Abuse
Date 21 June, 2007
Database House Hansard
Questioner Tollner, David, MP (Solomon, CLP, Government)
Responder Howard, John, MP (Bennelong, Prime Minister, LP)
Page 49
Proof Yes
Source House
Type Question
Context Questions Without Notice
Main Committee No

QUESTIONS WITHOUT NOTICE

Child Abuse
Question
Mr TOLLNER (2.02 p.m.)—My question is also addressed to the Prime Minister. Would the Prime Minister advise the House now of details of the Australian government’s response to the emergency outlined in the Northern Territory report into the protection of Aboriginal children from sexual abuse?

Answer
Mr HOWARD—I thank the member for Solomon for his question and I also thank him for the advice and counsel he provided to me and to the relevant minister regarding this matter prior to the government’s final decision. The measures are essentially as follows, and they are couched against the background of believing that this is a national emergency. The Minister for Families, Community Services and Indigenous Affairs put it to me very powerfully yesterday when he said that if this report had been about events in the suburb of Dickson, here in the Australian Capital Territory, there would have been a massive and immediate community response and a demand that something along the scale that I outlined a few minutes ago be undertaken by the government. We take the view that the same attitude should be adopted in relation to the Indigenous children of the Northern Territory.

The actions that the government has announced will be overseen by a task force of eminent Australians, including logistics and other specialists and child protection experts. I am very happy to announce that Dr Sue Gordon, the eminent Western Australian magistrate, has agreed to assume a leadership role in the task force. Essentially, what the government has in mind is the introduction of widespread alcohol restrictions on Northern Territory Aboriginal land for six months—banning the sale, the possession, the transportation and the consumption—and broader monitoring of takeaway sales across the Northern Territory. We will be appealing to the Australian Medical Association to encourage the provision of doctors to undertake a medical examination of every Indigenous child in the Northern Territory under the age of 16. The federal government will bear all of the additional costs involved in relation to those health checks. I have no doubt that the Australian Medical Association, given its longstanding interest in this issue, will respond very enthusiastically to what the government has in mind.

We propose a major change in the area of welfare in order to stem the flow of cash going towards alcohol abuse and to ensure that funds that are meant to be used for children’s welfare are actually used for that purpose. The main intention here is that 50 per cent of these welfare payments will effectively be quarantined for the purchase of food and other essential items. That will apply to all families receiving these payments anywhere in the affected areas. We will be enforcing school attendance by linking income support and family assistance payments to school attendance for all people living on Aboriginal land. We will be ensuring the provision of meals for children at school, with parents paying for those meals.

The Commonwealth government will take control of townships through five-year leases to ensure that property and public housing can be improved. That will include, if appropriate, the payment of just terms compensation. We will be requiring intensive on-ground clean-up of communities to make them safer and healthier by marshalling local workforces through Work for the Dole arrangements. We intend to scrap the permit system for common areas and road corridors on Aboriginal land. We intend to ban the possession of X-rated pornography in the prescribed areas and we will check all publicly funded computers for evidence of storage of pornography.

In the area of law enforcement, there will be an immediate increase in policing levels, which have been woefully inadequate for many years in the Northern Territory. We will be calling on the state police services to provide at least 10 additional officers at Commonwealth expense, and they will be sworn in as Territory police officers to assist with the policing task. We will provide additional resources to set up an Australian government sexual abuse reporting desk, and we will appoint managers of all government businesses in all of the relevant communities. Next Thursday there will be a meeting of the Intergovernmental Committee on the Australian Crime Commission, and the federal representative on that body, the Minister for Justice and Customs, will ask his fellow ministers to refer to the Australian Crime Commission a reference to allow the commission to identify and locate perpetrators of sexual abuse of Indigenous children in other areas of Australia. After the identification of those perpetrators, that will lead, hopefully, to the prosecution of those people.

I also indicate to the House that the minister will be bringing to cabinet at its next meeting proposals for further extending the conditionality of welfare payments to all Australians receiving income support, to ensure that these payments are used for the benefit of their children. I should put the House on notice that it may be necessary for parliament to be recalled from the winter break in order to pass the legislation needed to give effect to this package. That legislation will involve amendments to the Northern Territory (Self-Government) Act and to the Northern Territory land rights legislation. At this stage I am advised that amendments to other pieces of legislation will not be required.

Many in the House will know that the terrible, sad and tragic set of circumstances revealed by this report in Northern Territory is duplicated in other parts of the country. The difference between the Territory and other parts of the country is that this parliament has the constitutional power and authority to do something about it in the Territory. We do not have the constitutional power to act in the same way in the states. I would appeal directly to every state Premier who has got the same problem in some part of his state to do the same as I have announced this morning. I appeal directly to the Premier of Queensland, to the Premier of New South Wales, and particularly to the Premier of Western Australia. They know that they have the same problem, and many of them have had reports saying that. I am asking them to do the same for their Aboriginal children as we have today announced a willingness to do for the Aboriginal children of the Northern Territory.

***

The Eros Association
PM’s Call for Ban on X Material Misguided, Fraudulent.
Friday, 22 June 2007
Media Release 21.6.07

PM’s Call for Ban on X Material Misguided, Fraudulent.

The Prime Minster’s statement today that X rated material will be banned from aboriginal communities as a way of solving child sex abuse problems was a political manoeuvre that would do nothing to alleviate the problems, the Eros Association said today.

X Rated material includes X18+ films as well as Category 1 and 2 Restricted books and magazines which are legal to possess in all states of Australia with some material even available through ordinary newsagents. It does not include Refused Classification material or sexually violent R rated material.

The recent report of the NT Board of Inquiry concluded that Austar and SBS were “probably the main sources of porn in the community”. It also stated that aboriginal people were more concerned about American violent gangster movies and video clips (p199-200). Mr Howard’s statement did not address any of this media.

Eros CEO, Fiona Patten said that the problem in the communities was with sexually violent films and publications which were Refused Classification or R rated – not with non violent sexually explicit X rated. “Mr Howard’s statement says nothing about these films and publications and ostensibly leaves the way open to rogue traders who supply this sort of material to continue pumping it into these communities like they have been doing for 10 years now”, she said.

The Eros Association and some of its members have been sending information to Federal Government and NT ministers and police about the problems of illegal pornography on aboriginal communities for over four years without any action being taken. This situation was raised in Senate Estimates on 23rd May by Senator Ludwig when he questioned the Justice Minister and AFP Commissioner, Bill Keelty. Eros documents dating back four years were tabled.

Ms Patten estimated that 80% of the banned (ie Refused Classification) pornography coming onto the communities has been coming from four pirate operators in Darwin who do not sell X rated material but sell illegal material for ridiculously low prices like $5 per DVD. “The Prime Minister has been very badly advised about the situation on the ground and is making a huge mistake for the purposes of trying to assure the community that he is doing something”, she said.
“The federal government should be prosecuting these rogue operators and stem the flow at its source rather than try and place unworkable bans on certain geographic locations. People on these communities do not send $50 cheques to Canberra operators for classified X rated ‘couples’ films when they can buy $5 banned films from Darwin”.

She said that Mr Howard had ignored the effect of the big commercial R rated film companies who sold Texas Chainsaw Massacre films, simulated rape fantasies and other monstrously violent material which also ended up on the communities which were noted as being the major visual problems in the recommendations

“We were the first ones to alert government and the authorities to the fact that banned pornography was turning up on these communities so what do they do? Ban the legal material and forget about the bad stuff. No wonder they are not making a dent on the problem.”

Media: Fiona Patten, 0413 734 613

***

'Pointless' porn law won't stop crims. The Australian 22.06.07

However, Ms [Fiona] Patten decried the Prime Minister's ban on pornography as "ludicrous", saying it raised "huge free speech issues". While it was inappropriate and illegal to show the X-rated material to children, it was "drawing a long bow" to link it to sexual violence.

The director of the College of Indigenous Australian People at Southern Cross University, Judy Atkinson, also expressed reservations about the efficacy of the ban.

Despite her belief there was a "clear causal link" between pornography and sexual violence, the ban would not solve problems in indigenous communities.

Professor Atkinson said that a key was providing resources for education and early intervention.

Images of women having sex with multiple partners - common in porn films - sent a particularly dangerous message, she said

***

Predictably the Australian Christian Lobby wants to extend the ban to the ACT.

Extend Aboriginal porn ban to ACT, say Christians. ABC Online 24.06.07

"It's sourced from these places, it's not banned in terms of being available in other parts of Australia," he said.

"If you're going to address this problem you've got to stop pornography at its source - which is the ACT."

Update June 24th 2007
Refused-Classification.com 

Australian Censorship News

UPDATES
16th June 2007

NSW Council for Civil Liberties: Case Fails.

On Thursday the NSW Council for Civil Liberties failed in their attempt to have the ban on Join the Caravan and Defence of the Muslim Lands overturned.

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THE PEACEFUL PILL HANDBOOK: Banned in NZ

In other book banning news, the New Zealand OFLC have joined the Australian censors in refusing Phillip Nitschke's THE PEACEFUL PILL HANDBOOK.

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Disorderly Conduct: PG Problems

The ACMA have found that an episode of the reality TV show DISORDERLY CONDUCT was incorrectly rated PG.

Australian Government
Australian Communications and Media Authority
MR 65/2007
14 June 2007

ACMA finds Disorderly Conduct Caught on Tape broadcast on HSV 7 Melbourne exceeded PG classification

The Australian Communications and Media Authority has found that Channel Seven Melbourne Pty Ltd, the licensee of commercial television service HSV Melbourne, breached the Commercial Television Industry Code of Practice (the code) by broadcasting a program, Disorderly Conduct Caught on Tape, which failed to comply with the PG requirements for ‘violence’.

On 25 January 2007, ACMA received a complaint about Disorderly Conduct Caught on Tape, a program consisting of a compilation of real footage, which was broadcast by HSV on 20 December 2006. The complainant alleged that a scene in which a person is run over by a car, which was shown four times in the program, was not mild in impact and therefore caused it to exceed the PG classification.

ACMA determined that HSV breached clause 2.4 and paragraph 3.1 of Appendix 4 of the code by failing to comply with the PG requirements for violence.

The code states that, among other things, depictions of violence in PG classified programs must not be explicit and must be restrained.

In ACMA’s view, the visual depiction of violence in the program was explicit and unrestrained in nature.

In response to the finding, Channel Seven Melbourne Pty Ltd has undertaken to circulate ACMA’s final investigation report and an explanation of the decision to all classification and programming staff and senior management. It also undertook to incorporate issues raised by the investigation in future training at the network.

ACMA is satisfied that Channel Seven Melbourne Pty Ltd has addressed the compliance issues raised by the breach finding.
The investigation report is available here on the ACMA website.

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JACK'S POV 6: Censored 

The hardcore DVD JACK'S POV 6 has been censored to achieve an X18+ (Explicit Sex) rating.

JACK'S POV 6 Film (DVD)
Classification RC
Consumer Advice
Category Film - Sale/Hire
Version ORIGINAL
Duration variable
Date of Classification 21 May 2007
Author RODDY D
Publisher SAM & JOONE
Production Company DIGITAL PLAYGROUND
Country of Origin USA
Applicant CALVISTA AUSTRALIA PTY LTD
File Number T07/2303
Classification Number 4272141C

JACK'S POV 6 Film (DVD)
Classification X 18+ (Restricted to 18 and over.)
Consumer Advice Explicit sex
Category Film - Sale/Hire
Version REVISED
Duration variable
Date of Classification 12 June 2007
Author RODDY D
Publisher SAM & JOONE
Production Company DIGITAL PLAYGROUND
Country of Origin USA
Applicant CALVISTA AUSTRALIA PTY LTD
File Number T07/2303
Classification Number 5273652D

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V-Tech Rampage: MA15+.

According the ACMA, the OFLC have rated the V-Tech Rampage game MA15+.

Update June 16th 2007
Refused-Classification.com 

UPDATES
10th June 2007

CRUSH: RC
DARK ANGELS 2: BLOODLINE: RC

A DVD double-bill of CRUSH and DARK ANGELS 2: BLOODLINE has just been banned by the Classification Board. The second title was presumably the one that caused the most problems as it contains something that has become difficult to see in an OFLC approved hardcore DVD, that is - a plot! The vampire theme would no doubt have to include some element of violence. Remember this is strictly out of the question in X18+.

CRUSH / DARK ANGELS 2 - BLOODLINE Film (DVD)
Classification RC
Consumer Advice
Category Film - Sale/Hire
Version ORIGINAL
Duration variable
Date of Classification 8 June 2007
Author ETHAN KANE , NIC ANDREWS
Publisher ETHAN KANE , NIC ANDREWS
Production Company DIGITAL SIN / NEW SENSATIONS
Country of Origin USA
Applicant THOMAS A ROYSTON
File Number T07/2607
Classification Number 737A6617

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DOUBLE JEOPARDY: Cut
FACE FUCKING INC: Cut
SUMMER SEX JOB IN GUADALOUPE 2: Cut
TITTY BABES: Cut

Calvista have now secured X18+ (Explicit Sex) ratings for five of the seven hardcore DVDs that they had banned in May. Joining DEBBIE DOES DALLAS AGAIN are censored versions of:

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PICTURE PREMIUM 100% HOME GIRLS #46: Modified

As usual with titles in THE PICTURE PREMIUM range of magazines, the publisher, ACP Extra have again overstepped the intended ratings. Issue #46 of the 100% HOME GIRLS magazine saw the proof print of the Unrestricted issue hit with a Category 1, Modifications have now been made and it now has the intended Unrestricted (M not recommended for readers under 15 years) rating.

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Censors vs. PENTHOUSE 

The latest issue of PENTHOUSE has ran into problems with the Classification Board. It looks like the magazine takes advantage of the Serial Classification that the OFLC offers. Like THE PICTURE PREMIUM two versions of the magazine are produced. One is Unrestricted (M not recommended for readers under 15 years), and the other Category 1.

The Serial Classification option could now be in doubt after the Classification Board found that the Unrestricted (M not recommended for readers under 15 years) version "emphasised genitals".

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Liberals want music video ratings.

Pushed by their Women's Committee, the Liberal Party Federal Council has backed a motion calling for music videos to be rated.

Call for music videos to be classified. ABC AM Program 02.06.07

TIMOTHY MCDONALD: The Attorney-General Philip Ruddock told the council he'd look into the matter.

PHILIP RUDDOCK: I would like to have the particular programs that you have identified and particularly if you have a tape of them or can identify the particular clips so that I can invite the appropriate officers to undertake a review and to see whether or not those matters ought to be requested for further examination.

TIMOTHY MCDONALD: Network Ten has a long running and popular video show on Saturday and Sundays mornings. It's rated G before 10 o'clock and PG afterwards.

A spokeswoman says all music videos on Channel Ten are reviewed by professional classifiers, who make sure they're in line with the commercial television code of practice. She says the network receives very few complaints about the program.

That comes as no surprise to the President of the New South Wales Council for Civil Liberties, Cameron Murphy. He says there's no problem with the current classification system.

CAMERON MURPHY: If parents are concerned about material that's on television, it's their job in the first place to ensure that they're determining what their children watch, what's appropriate for them, and they have all the tools to do so. The current system allows them to do that.

TIMOTHY MCDONALD: Mr Murphy says he's worried about the Government's approach to censorship laws. He says people don't need the Government telling them what they can and can't watch.

CAMERON MURPHY: The Classification Review Board, which used to be independent, has been moved into the Attorney-General's department. There's a review at the moment of the Classification Act. Music videos are fine.

ELIZABETH JACKSON: The President of the New South Wales Council for Civil Liberties Cameron Murphy ending that report from Tim McDonald.

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Rating Smoking in Films

On Tuesday the ABC Radio National show Australia Talks covered the subject of smoking in film. Now that the MPAA in the US are looking at giving higher ratings to such films, will Australia follow? One of the guests on the show is the new Director of the OFLC Donald McDonald. You can download a copy of the show here.

Australia Talks
5th June 2007
Smoking in the Movies

Smoking in the movies - is it time to get tough on films that glamourise smoking? Or, is contemporary cinema simply an accurate depiction of everyday life?

And what is the cultural exchange between movie scripts and society in general?

What do you think about this one-time ubiquitous movie prop - smoking - should it be restricted on-screen or not? Should there be more indicators to parents that smoking is in a film?

Guests
Julie Rigg
Host of Radio National's 'Movie Time'

Associate Professor John Fitzgerald
School of Population Health, University of Melbourne.

Wendy Oakes
Manager of Tobacco Control at The Cancer Council of New South Wales.

Donald McDonald
Director of the Classification Board, at Australia's Office of Film and Literature Classification.

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Terror Review Closes

The Material That Advocates Terrorist Acts review closed on May 29th. A link to the results of the public consultation can now be found here.

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Advertising Standards Board: April Complaints

Here is a breakdown of the complaints heard by the Advertising Standards Board in April. Go to their website (adstandards.com.au) to read full reports for each one. Thanks to that wonderful thing called the internet many of these advertisements can still be viewed on video share sites.

The following complaints were upheld.

All of the following complaints were dismissed.

Here are the full reports for a couple of the complaints.

ADVERTISING STANDARDS BOARD CASE REPORT
1. Complaint reference number 110/07
2. Advertiser Jim Beam Brands (The Tragedy)
3. Product Alcohol
4. Type of advertisement Pay TV
5. Nature of complaint Discrimination or vilification Religion – section 2.1
Discrimination or vilification Sexual preference – section 2.1
6. Date of determination Tuesday, 10 April 2007
7. DETERMINATION Dismissed

DESCRIPTION OF THE ADVERTISEMENT
This television advertisement features an attractive young brunette woman in a night club telling the camera "Actually I've never had a boyfriend. Not one, no. I've always preferred girls. I guess I just find them more fascinating." An attractive young blonde woman joins her, touching her leg and putting her arm around her shoulders. The first girl introduces her "This is my girlfriend. I don't know why,
but blokes just don't do it for me. I just love girls." A male voiceover concludes "THE TRAGEDY.
JIM BEAM. THE BOURBON".

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

Totally inappropriate material for children during a live sports program.

I find this offensive due to the fact that it goes against my Christian faith and also I don't find it acceptable that I sit down with my young children to watch a game of footy and this ad comes on.When they ask questions of this ad I then have to explain. I don't have a problem with them advertising their product but I don't see what lesbians have to do with drinking bourbon.

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

These commercials are intended to be a humorous campaign which claims Jim Beam is the highest quality, the best and ‘The Ultimate’ bourbon, or, as the catchphrase puts it ‘The Bourbon’. Each has been pre-vetted and approved against the ABAC code and with CAD.

In each case, we liken Jim Beam to other ‘ultimate’ or incredible things, the kind of things which our audience could only imagine in their wildest dreams. This is common to most humorous advertising, we over-exaggerate and fantasize in order to illustrate our point.

In ‘The Tragedy’ TVC a beautiful girl who is dreamily attractive to any man turns out not to be attracted to men at all, but instead prefers other women. To most men this is the ultimate tragedy, in the same way that Jim Beam is the ultimate bourbon. This is a fantasy occurrence for most men,
to the point of cliché, and as such we believe it is understood to be non-sensical.

Prior to filming and airing this commercial we researched it amongst both men and women (in Australia and NZ) aged between 20 and 35 to make sure our audience shares a similar view, and the outcome was positive. Interestingly, although our audience are all positive, ‘The tragedy’ was liked more by women than by men. It was seen as a well understood scenario which ‘never happens in real life’ and one which gave men their ‘just desserts’.

The complainant makes two points, first that it [lesbianism] goes against her Christian faith, and second, the offence that her children are exposed to this issue by our advertising.

Taking the first point, whether or not sexuality forms reasonable content for advertising is a matter of judgment, particularly when it comes to the issue of religious faith which we would not venture to comment upon. I believe Jim Beam have taken the necessary steps to ensure that
depicting lesbianism is not offensive to the majority in itself, and not as shown in this commercial. For this reason we assert this TVC is not interpreted as discriminating against or vilifying lesbians, in fact the converse is true, lesbians are celebrated.

The second point does concern us. Although we are confident this commercial is acceptable to the majority we are mindful it is not our place to prompt unwelcome discussion of the subject between parents and their children. As a consequence we have ensured this particular TVC will no longer be aired during sports programming prior to 8.30 pm on the Pay TV channels. This is the standard set for network TV and alcohol advertising, which we understand is the appropriate benchmark. We would hope this demonstrates a responsible approach to the issue.

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

The Board viewed the advertisement and considered the complainant's comments that the advertisement was offensive.

The Board considered whether the depiction of the lesbian women breached Section 2.3 of the Code dealing with sex, sexuality and nudity. The Board agreed that the depcition of lesbian affection was no less acceptable than depicting hetero-sexual affection. The Board agreed that the advertisement did not breach Section 2.3.
The Board then considered whether the advertisement breached Section 2.1 of the Code dealing with
discrimination and vilification. The Board agreed that the advertisement was a parody not to be taken
seriously and that the label at the end, "The Tragedy", was not intended to mean that it was a tragedy generally for women to be lesbians, but that such an attractive woman was not available to heterosexual men. The Board agreed that this did not amount to discrimination against lesbians.
Finding that the advertisement did not breach the Code on any grounds, the Board dismissed the complaint.

***

ADVERTISING STANDARDS BOARD CASE REPORT
1. Complaint reference number 108/07
2. Advertiser MasterFoods Australia (Starburst - Big Brother Key)
3. Product Food & Beverages
4. Type of advertisement TV
5. Nature of complaint Health and safety – section 2.6
Other - Causes alarm and distress
6. Date of determination Tuesday, 10 April 2007
7. DETERMINATION Upheld – discontinued or modified

DESCRIPTION OF THE ADVERTISEMENT
This television advertisement features a montage of the life experiences of male conjoined twins from birth to today. As the backing track music ceases we see the grown twins lying beside each other on hospital beds with a blue dotted line painted down the middle of the joining skin. One twin is smiling and holding a packet of Starburst and a big golden key that has a Big Brother keyring attached, while the other appears to be unconscious on life-support. We then see one of the twins standing on the Big Brother stage set with the key and a carry bag in one hand and an intravenous drip in the other.
Heavily bandaged around his mid-section, he waves to the crowd of excited Big Brother fans. A male voiceover proclaims "Buy any specially marked pack of Starburst, win a Golden Key and ONE lucky person could become a Big Brother Housemate".

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

I found this very degrading, immoral and VERY POOR advertising.

...the depiction of "Disabled/Conjoined Twins" in such an inappropriate manner. Clearly the actors are not conjoined and the comical way in which they were portraying their "disability" was extremely ofensive (sic).

I was extremely offended and disappointed that some supposed advertising geniuses have seen fit to make a commercial that makes fun of and is insulting to these types of identical twins. It is my opinion that this ad is extremely offensive and should be taken off air immediately. The lives and struggles of conjoined twins and their families is a serious matter, not a joke. The deserve respect.

Siamese twins is (sic) a tragic and serious medical condition not something to be made fun of for the purposes of advertising. For those parents who face this problem, separation of the twins is a serious life threatening operation not something to be made light of.

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

The advertisement emphasises that there can be just one winner, and builds on the show’s popularity with young adults, who the STARBURST® brand particularly appeals to. In developing this advertisement we took care to ensure that the twins portrayed were engaging in all the enjoyable activities that the other individuals undertook in each scene, and at no stage intended to portray them in a discriminatory way, or to cause offence to anyone.

The complainant letters submitted to the Bureau comment that conjoined twins live with a serious condition, and that for some of them surgery is a life threatening operation. One also, however, acknowledges that some live relatively normal lives and achieve incredible things.

Whilst we acknowledge that we have portrayed this small group, and their condition, in ouradvertising we do not believe that our advertisement does so in a way that is discriminating or vilifying to that group. It is certainly not our intent, and through the creative development process
we endeavoured to ensure this did not occur.

In summary, we acknowledge that this advertising has prompted three complaints, and welcome the community’s feedback in relation to it. We do, however, believe that the care we have taken to develop the advertisement has ensured it meets the provisions of the Code, and that the complaints
submitted should be dismissed.

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

The Board viewed the advertisement several times and considered the complainants' comments that the advertisement was offensive.

The Board agreed that the advertisement, and the scene showing the conjoined twins undergoing separation surgery in particular, was insensitive, highly tasteless and very offensive, especially given the high likelihood of at least one conjoined twin dying in cases of separation surgery.

The Board considered whether the advertisement breached section 2.6 of the Code dealing with community standards of health and safety. The Board agreed that the notion of undergoing separation surgery in order to be a single winner in a prize draw was against prevailing community standards of health and safety. While the Board recognised that the advertisement contained attempted humour, the Board agreed that the humour failed in the light of the sensitive nature of conjoined twins' separations. Accordingly the Board found that the advertisement breached Section 2.6 of the Code dealing with health and safety.

The Board also considered whether the advertisement breached the AANA Food and Beverages Advertising and Marketing Communications Code (“F & B Code”). In the absence of presented evidence to the contrary, the Board found that the advertisement did not breach the F & B Code.

Finding that the advertisement did breach section 2.6 of the Code, the Board upheld the complaint.

ADVERTISER'S RESPONSE TO DETERMINATION
As a result of the Board’s finding we will move promptly to either modify or discontinue the advertisement.

We have this week written to the advertising agency involved, Clemenger BBDO requesting that they read the draft case report and respond to us with a proposal as to how the advertisement could be modified to ensure that it complies with Section 2.6 of the Advertiser Code of Ethics.

We have requested they provide us with a formal response by c.o.b on Tuesday 24th April.

It is our intention that we make a prompt and considered assessment of their proposal, and then to advise you of any reasonable suggestions they make to modify the advertisement before the end of that week.

Update June 10th 2007
Refused-Classification.com 

UPDATES
3rd June 2007

DOUBLE JEOPARDY: RC
SEX AND VIOLINS: RC
SUMMER SEX JOB IN GUADALOUPE 2: RC
DEBBIE DOES DALLAS AGAIN: Cut

Poor old Clavista! Another three of their hardcore DVDs have been banned by the Classification Board. These are:

SUMMER SEX JOB IN GUADALOUPE 2 (PRIVATE TROPICAL 33) Film (DVD)
Classification RC
Consumer Advice
Category Film - Sale/Hire
Version ORIGINAL
Duration variable
Date of Classification 23 May 2007
Author ALESSANDRO DEL MAR
Publisher NOT SHOWN
Production Company FRASERSIDE HOLDINGS LTD
Country of Origin EUROPE
Applicant CALVISTA AUSTRALIA PTY LTD
File Number T07/2378
Classification Number 5273440E

DOUBLE JEOPARDY Film (DVD)
Classification RC
Consumer Advice
Category Film - Sale/Hire
Version ORIGINAL
Duration variable
Date of Classification 28 May 2007
Author CHUCK LORDS
Publisher SHYLAR COBI
Production Company VIVID
Country of Origin USA
Applicant CALVISTA AUSTRALIA PTY LTD
File Number T07/2398
Classification Number 4272053D

SEX AND VIOLINS Film (DVD)
Classification RC
Consumer Advice
Category Film - Sale/Hire
Version ORIGINAL
Duration variable
Date of Classification 31 May 2007
Author PAUL THOMAS
Publisher SHYLAR COBI
Production Company VIVID
Country of Origin USA
Applicant CALVISTA AUSTRALIA PTY LTD
File Number T07/2478
Classification Number 7672172E

These join the three that were banned the previous week. So far only one of those, DEBBIE DOES DALLAS AGAIN, has been censored for an X18+ (Explicit Sex) rating.

******

INSPECTOR REX: Not PG

ACMA have found SBS guilty of incorrectly classifying the DEATH VIA THE INTERNET episode of INSPECTOR REX PG.

Australian Government
Australian Communications and Media Authority
29 May 2007
ACMA finds SBS incorrectly classified episode of Inspector Rex

The Australian Communications and Media Authority has found that the Special Broadcasting Service Corporation (SBS) breached Code 4 of the SBS Codes of Practice 2006 by broadcasting an incorrectly classified episode of the program Inspector Rex on 16 November 2006.

In response to a complaint received on 31 December 2006, ACMA found that material in certain scenes was not sufficiently mild and discreet to be classified PG.

The guidelines for PG-classified programs require that sexual activity be mild in impact, discreetly implied, and justified by context.

SBS acknowledged it had incorrectly classified the program and advised ACMA that it had apologised to the complainant for the breach. The broadcaster further advised that it did not intend to broadcast the episode in question again, and that it had discussed the reasons behind the finding of the breach with staff directly involved in the program’s classification.

ACMA also found that SBS had complied with Code 8 in dealing with the complaint in the first instance.

ACMA does not propose to take any further action in relation to the matter at this time.

ACMA’s investigation report can be viewed on ACMA’s website.

Media contact: Donald Robertson, ACMA Media Manager, on (02) 9334 7980.

Backgrounder
Complaints about national broadcasters
Under section 150 of the Broadcasting Services Act 1992, if a person complains to the ABC or SBS about a matter that is covered by a code of practice and does not receive a satisfactory response within 60 days, the person can refer the complaint to ACMA.

Further information about ACMA’s complaint-handling role is available on its website.

SBS Code of Practice 2006
The SBS Code of Practice 2006 can be viewed on the SBS website at www20.sbs.com.au/sbscorporate/index.php?id=1065.

******

The OFLC @ Senate Estimates

The new Director of the OFLC, Donald McDonald, made his debut at the recent Senate Estimates. Topics covered included just how he managed to land the job, Muslim terror books and DVD's, and the banning of THE PEACEFUL PILL HANDBOOK.

The speakers are:

ALP
WA Senator Chris Evans 
QLD Senator Joe Ludwig

Liberal Party
WA Senator David Johnston
NSW Senator Marise Payne

Office of Film and Literature Classification 
Mr Donald McDonald, Director
Ms Kelly Williams, Assistant Secretary
Mr Jeremy Fenton, Senior Classifier

Attorney-General’s Department Management and Accountability
Mr Ian Govey, Deputy Secretary, Civil Justice and Legal Services

Support services for government operations Output group 4 
Mr Alex Anderson, Assistant Secretary, Legal Policy

Output 1.2 Ms Amanda Davies, Assistant Secretary, Classification Policy Branch

STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS: Office of Film and Literature Classification: Discussion
Date 24 May, 2007
Committee name STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
Page 86
Proof Yes
Database Estimates Comm.
Source Senate

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CHAIR—We welcome Mr McDonald and his colleagues from the Office of Film and Literature Classification. Are there any questions?

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Senator CHRIS EVANS—I wish to ask about the appointment process and how it was conducted. I presume I ask that of Mr Cornall rather than Mr McDonald. We had a discussion earlier about the human rights commission. Was this job advertised?

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Mr Cornall—Yes, it was.

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Senator CHRIS EVANS—When was it advertised?

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Mr Cornall—Some time in the latter part of 2006.

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Senator CHRIS EVANS—Did the department handle the selection process?

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Mr Cornall—Yes, we did.

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Senator CHRIS EVANS—What was the selection process?

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Mr Cornall—We called for applications. We considered the applications. We established a short-list and we conducted interviews.

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Senator CHRIS EVANS—Was Mr McDonald an applicant?

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Mr Cornall—No. I will just go on. We did all of that in 2006. We felt, out of that process, that there were two candidates who were worthy of consideration, but we were not sure that they met all of the criteria that we were looking for in the position. In early 2007 we engaged an executive recruitment firm to see if they could supplement the list of candidates, which they did. We conducted another round of interviews and, as a result of that, one of the people who was in that second round of interviews stood out to us as the candidate that we felt met the criteria most closely. We then put those details before the Attorney. We told him of the process that we had been through, the people we had interviewed, the candidates we thought were worthy of consideration and the reasons why we thought that. We gave him a report of the process and the matter was left to him at that point. I should stress that, as we discussed before, statutory appointments are matters for government to make. They can ask for a process to be conducted or they can simply make appointments without any reference to the department. They can ask for a process to be undertaken and then not accept the recommendations about potential candidates.

As I understand it, after that point the Attorney had a discussion with Mr McDonald in which it became clear that Mr McDonald would consider appointment if it was offered to him. The Attorney thought that was an outstanding appointment to be made, and the matter went forward from there.

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Senator CHRIS EVANS—Thank you for that. You answered a bit quickly for me so I will take you back a bit more slowly through that. PM&C told me the other day it was a cabinet appointment.

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Mr Cornall—Yes.

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Senator CHRIS EVANS—As you say, it is within the power of cabinet to make whatever decision it wants to make. I might add that I am not casting any aspersions against Mr McDonald or his qualifications for the job. I am not particularly familiar with what the qualifications for the job are. So you short-listed in 2006. Did you make the decision that the two candidates that you came down to were not up to it, or was that a decision the minister made after seeing what you had put up to him?

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Mr Cornall—It was a decision that was reflected on by the committee after we had looked at the report that we were preparing at that time.

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Senator CHRIS EVANS—Were you on the committee?

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Mr Cornall—Yes, I chaired the committee.

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Senator CHRIS EVANS—Who else was on it?

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Mr Cornall—Amanda Davies, one of my fellow officers; Laurie Glenfield, the Secretary of the Attorney-General’s Department in New South Wales; and Josh Faulks, who is an adviser to the Attorney-General.

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Senator CHRIS EVANS—Is he a political adviser?

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Mr Cornall—He is an adviser to the Attorney-General.

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Senator CHRIS EVANS—He is not someone on secondment from the department?

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Mr Cornall—No.

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Senator CHRIS EVANS—That committee was constituted. You came to two names, but in the end you concluded that you were not going to put either of them forward to the minister?

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Mr Cornall—We did not put a formal submission to the Attorney before we decided we might have another look.

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Senator CHRIS EVANS—Did you discuss that with the Attorney before you decided to have another look?

Talk
Mr Cornall—No, I did not.

Talk
Senator CHRIS EVANS—Was that a process done within the selection committee itself?

Talk
Mr Cornall—Yes, more or less within the selection committee itself. I did not discuss it with the Attorney and I did not put a submission to the Attorney at that point.

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Senator CHRIS EVANS—Who did you get to do the executive recruitment search?

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Mr Cornall—Hansen and Searson.

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Senator CHRIS EVANS—Had you used them before?

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Mr Cornall—Yes. They are very well known recruitment agents in Canberra.

Talk
Senator CHRIS EVANS—And they went out and did a recruitment service. How did you handle what came back?

Talk
Mr Cornall—They received eight expressions of interest and, after we discussed them, we agreed to short-list five candidates from that process.

Talk
Senator CHRIS EVANS—Were any of them candidates from your earlier process?

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Mr Cornall—No.

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Senator CHRIS EVANS—When you say ‘expressions of interest’, these are people they had identified who have said that they were willing to have their name go forward?

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Mr Cornall—Yes, that is right.

Talk
Senator CHRIS EVANS—You short-listed five; did the same selection committee interview them?

Talk
Mr Cornall—Yes, the same selection committee.

Talk
Senator CHRIS EVANS—Did you interview them, get referees and that sort of process?

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Mr Cornall—Yes, we did.

Talk
Senator CHRIS EVANS—Did you come down to one recommended candidate?

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Mr Cornall—In the end we felt one candidate stood out, but we told the Attorney of the three candidates from both processes that we felt were worthy of consideration.

Talk
Senator CHRIS EVANS—So there was still somebody from the original list?

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Mr Cornall—We made a report to the Attorney that covered the whole process.

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Senator CHRIS EVANS—Was there one preferred candidate and the two from the original process?

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Mr Cornall—The candidates in the final process that we felt most closely met all of the criteria, but the two earlier candidates we thought had come pretty close.

Talk
Senator CHRIS EVANS—Is it fair to say that the candidates from the second process were the preferred nomination?

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Mr Cornall—That was our recommendation. All we can do in these circumstances is make a recommendation to the Attorney that ‘we feel this person meets the criteria that you are looking for’.

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Senator CHRIS EVANS—I am just trying to ascertain whether the three went forward with equal weight.

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Mr Cornall—No, one stood out.

Talk
Senator CHRIS EVANS—One went forward as the recommendation and you also forwarded the other two names as being qualified but not recommended?

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Mr Cornall—No, we said that they were certainly worthy of consideration for appointment if he did not want to appoint the person whom we felt most closely met all of the criteria.

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Senator CHRIS EVANS—What happened after that?

Talk
Mr Cornall—Then the matter was in the hands of the Attorney.

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Senator CHRIS EVANS—When were you advised that he was not going to select the recommended candidate?

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Mr Cornall—I am not sure that I know the exact date. It was not long before the meeting of the Standing Committee of Attorneys-General. If you want the exact date I will have to find it for you. I do not know that I have it.

Talk
Senator CHRIS EVANS—Were you told first that the applicant that you had recommended would not be appointed and did you subsequently hear that cabinet had made a decision to appoint Mr McDonald or was it one process?

Talk
Mr Cornall—I had a telephone call that said that the Attorney was considering making Mr McDonald as an appointment, because with the process that we had to go through—and I just cannot remember the timing of all of this and who did what—we have to do papers for the matter to go to the cabinet. Once it has gone to cabinet, because this was a process that involved a position that had to be consulted with the states, we had to also do letters for the Attorney to send to his state colleagues on the censorship ministers committee before the appointment could be formally made. We had to do all of those things as well, so we were involved in those processes.

Talk
Senator CHRIS EVANS—Just so that I am clear, that means you must have been asked to provide paperwork for the cabinet that nominated Mr McDonald and not the other applicant?

Talk
Mr Cornall—Yes, that is right.

Talk
Senator CHRIS EVANS—The minister had advised you that he was not taking forward the applicant you had recommended or either of the other two but he was taking forward Mr McDonald’s name?

Talk
Mr Cornall—That is right.

Talk
Senator CHRIS EVANS—And the recommendation was just for one candidate?

Talk
Mr Cornall—That is right.

Talk
Senator CHRIS EVANS—So you prepared the paperwork for the Attorney-General to take to cabinet?

Talk
Mr Cornall—Yes, we did.

Talk
Senator CHRIS EVANS—Do you have the date of the cabinet meeting? Was it some time in April?

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Mr Cornall—It was between 23 March and 11 April, but I am not sure of the date. I do not have it here in front of me.

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Senator CHRIS EVANS—Does anyone have the date?

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Mr Cornall—Mr Anderson said that it was on 11 April.

Talk
Senator CHRIS EVANS—I have a media report here which was the 14th so I figured it was soon after that. Can you explain to me the process by which you have to consult with the states on this appointment?

Talk
Mr Cornall—Yes. There was a letter drafted for all of the states. It was faxed to the offices of the various ministers, and that was two days before the SCAG meeting, or the censorship ministers meeting. Then there was discussion about it at the meeting of the ministers.

Talk
Senator CHRIS EVANS—Is this all subsequent to the cabinet decision?

Talk
Mr Cornall—Yes, it is.

Talk
Senator CHRIS EVANS—SCAG is an unfortunate sounding acronym.

Talk
Mr Cornall—It is actually the censorship ministers. They are virtually all the same and they meet at the same time.

Talk
Senator CHRIS EVANS—So this was not the SCAG?

Talk
Mr Cornall—It was a meeting of the censorship ministers.

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CHAIR—Ministers for censorship.

Talk
Senator CHRIS EVANS—I am just trying to understand what the powers are. The cabinet had already made the decision and this was more of a courtesy than a—

Talk
Mr Cornall—No. It is difficult where you have to consult on appointments, which are normally kept very confidential, to go to eight jurisdictions and put the name of a person into that environment if in fact you have not got a clear indication from the cabinet that that person is acceptable to the Australian government. It is a question of which you do first, and the policy is to take any nominee to cabinet first to make sure that at least you have cabinet endorsement before you then go to the states, because then it will become a very public nomination. Under the legislation the Attorney-General has the power to make the appointment, but there is an obligation to consult.

Talk
Senator CHRIS EVANS—It is a consult and not a vote?

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Mr Cornall—That is right.

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Senator CHRIS EVANS—The Attorney-General says: ‘This is our nominee. We can have a chat about it,’ but at the end of the day unless he is convinced otherwise, he makes the nomination?

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Mr Cornall—That is right.

Talk
Senator CHRIS EVANS—It is not one of those deals where they get the deputy censor or something like that?

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Mr Cornall—No.

Talk
Senator CHRIS EVANS—A couple of them are those sorts of things.

Talk
Mr Cornall—No.

Talk
Senator CHRIS EVANS—So it is an appointment by the Attorney-General?

Talk
Mr Cornall—It is an appointment by the Australian government.

Talk
Senator CHRIS EVANS—I know it is a cabinet decision but formally it is the A-G; is that right?

Talk
Mr Cornall—It goes to the governor-in-council and it is a formal appointment by the governor-in-council after it has been recommended to the cabinet by the Attorney and the cabinet has endorsed it.

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Senator CHRIS EVANS—I think we are clear on that. PM&C told me the Prime Minister left the room for the decision. Was he the only person to absent himself from the cabinet meeting?

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Mr Cornall—I do not know.

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Senator CHRIS EVANS—But Mr Ruddock did not absent himself?

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Mr Cornall—I do not know.

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CHAIR—It is hard for Mr Cornall to respond on what happened in cabinet proceedings.

Talk
Senator CHRIS EVANS—I just wanted him to tell me who came out the door. PM&C gave evidence which confirmed the press reports that Mr Howard, the Prime Minister, absented himself from the room for the discussion. That was their evidence earlier in the week. When was Mr McDonald appointed?

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Mr Anderson—He was appointed on 26 April effective from 1 May.

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Senator CHRIS EVANS—How long is the appointment for?

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Mr Anderson—Four years.

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Senator CHRIS EVANS—Is this a full-time position?

Talk
Mr Anderson—That is correct.

Talk
Senator CHRIS EVANS—Thank you.

Talk
Senator LUDWIG—In response to Senator Stott Despoja’s question on notice No. 2903 of 7 February 2007, the minister indicated the reason for the amalgamation of the OFLC into the department was:

It is Government policy in the context of the Uhrig report to review all Australian Government agencies and identify ... functions that should be brought back within a Department.

In respect of the OFLC, what was the review that identified that the OFLC’s policymaking function should be brought back within the department?

Talk
Mr Cornall—It was a ministerial decision.

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Senator LUDWIG—There was no review?

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Mr Cornall—Yes, but not a review like the Uhrig review.

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Senator LUDWIG—There were no terms of reference?

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Mr Cornall—No, not a formal external review.

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Senator LUDWIG—And no-one conducted a review? There was no public consultation?

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Mr Cornall—No.

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Senator LUDWIG—Were stakeholders, industry representatives or community groups consulted?

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Mr Cornall—No.

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Senator LUDWIG—There was no ultimate report, either?

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Mr Cornall—No.

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Senator LUDWIG—So how do we understand the process of public interest or policy advice? Was that all simply by the minister making a decision to role the OFLC into the Attorney-General’s Department?

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Mr Cornall—Yes, I think that is right.

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Senator LUDWIG—How was that communicated to the department? Was that decision communicated to you?

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Mr Cornall—There was a submission to the Attorney recommending that course of action that the Attorney endorsed.

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Mr Anderson—There had been some interaction with the department of finance as well in the context of the Uhrig process that also fell into that advice to the Attorney.

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Senator LUDWIG—Are you able to say what that submission entailed and when it was made?

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Mr Anderson—I would have to take the date on notice.

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Senator LUDWIG—Was it close to the decision making or was it some time ago? Do you have a rough date?

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Mr Anderson—I will have to take that on notice.

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Senator LUDWIG—In the last 10 years? I am not asking for a specific date. I accept that you will take it on notice.

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Mr Anderson—I can say it was early in 2006.

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Senator LUDWIG—Who started the discussion with the department of finance? Was that the Attorney-General’s Department or the department of finance?

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Mr Anderson—We were already in discussion with the department of finance in the context of the ongoing Uhrig process.

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Senator LUDWIG—How did the OFLC get put on that list?

Talk
Mr Anderson—We were already having discussions with the department of finance about OFLC in the context of applying the Uhrig review to the OFLC.

Talk
Senator LUDWIG—When did that discussion commence? Was that from the Attorney-General’s Department?

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Mr Anderson—I would have to take that on notice.

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Senator LUDWIG—Was that before the Uhrig review?

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Mr Anderson—I would have to take that on notice in respect to OFLC. It is an ongoing process of discussion in relation to a range of bodies.

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Senator LUDWIG—Are you able to say what other bodies were also discussed?

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Mr Anderson—My understanding is that we were required to apply the Uhrig formula or methodology to all portfolio bodies.

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Senator LUDWIG—Was a submission then produced as a consequence of that report? What I am trying to understand is, given that we all know that there was a Uhrig report, what happened after that? You read it presumably?

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Mr Anderson—Yes.

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Senator LUDWIG—You then decided to independently say, ‘We will review all of the agencies’?

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Mr Anderson—We were required to do that.

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Senator LUDWIG—Was that a direction from the department of finance that caused that to occur? The report would not generally generate—

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Mr Cornall—It was a decision of government that all departments had to do it in respect of all agencies.

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Senator LUDWIG—As a consequence of the report, not because of the report?

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Mr Cornall—Following on from the report, which made the recommendation that the government should where possible reduce the number of agencies.

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Senator LUDWIG—I can accept that language. The government does not always implement all the recommendations of reports. It has to at some point say, ‘We will pick this one up and run with it.’

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Mr Cornall—That is true, and we were directed to do that.

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Senator LUDWIG—You can then find me that date. In being directed to do that, was there a document produced—in other words, a submission? Is it back to government? I am just trying to understand the process.

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Mr Cornall—The difficulty is that I just do not have the detail at my fingertips, but the gist of it was that we looked at all of the agencies. Many of them by definition could not be a division of a department.

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Senator LUDWIG—Yes. We could use the Australian Federal Police as an example.

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Mr Cornall—You could not have the police, the courts, the tribunals, the Privacy Commissioner, HREOC and so on. Really when we went through it there were very few portfolio agencies that actually fell within the principles such that you could bring them into the department. OFLC was one of the few that could be looked at in that regard.

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Senator LUDWIG—What others?

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Mr Cornall—We looked at the AIC. There was a review of the Institute of Criminology at some point. The Institute of Criminology was looked at in this context.

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Senator LUDWIG—Any of the tribunals?

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Mr Cornall—No.

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Senator LUDWIG—Certainly not the Office of the Director of Public Prosecutions?

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Mr Cornall—No.

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Senator LUDWIG—The Australian Law Reform Commission?

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Mr Cornall—That was looked at, but it was determined not to go ahead. I am sure we looked at all of them against the principles and we came to conclusions about all of them as to which ones could or could not be moved or whether there was any rationale for doing so under the principles.

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Senator LUDWIG—What I was trying to establish is which ones ended up in the basket to be looked at in more detail or examined?

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Mr Cornall—They were all examined. Basically, the OFLC was the most significant outcome of that.

Proceedings suspended from 6.30 pm to 7.29 pm

Talk
CHAIR—I call the committee to order. Did you want to make a statement, Mr Cornall?

Talk
Mr Cornall—Yesterday I gave a schedule of advertising expenditures. I have a couple of very minor corrections to the figures. One figure has come down from $0.6 million to $0.3 million, and one has come down from $5.3 million to $5.2 million, so they are a bit less than the figures I gave you. I will table this slightly corrected version for the sake of accuracy. The net result is that the advertising expenditure is less than was shown yesterday by a small amount.

Talk
CHAIR—Thank you. We will continue with the questions. Senator Ludwig, I have some questions too if you need some relief at any stage.

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Senator LUDWIG—I will tie this up as quickly as I can. I have questions with respect to the incorporation of OFLC in the department. We have heard how there was a decision by the Attorney-General to bring it forward and we have seen how we arrived at the OFLC-in-the-basket post the report. Did the department provide a submission to the Attorney-General’s Department based on the government direction and was there then the development, in light of the report, of a final snapshot to the Attorney-General that said, ‘This is what our recommendation is’? There seems to be a bit of difference on this point.

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Mr Cornall—I do not have these details fixed in my mind, that is all.

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Mr Anderson—Effectively, that is correct.

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Senator LUDWIG—In dealing with that was any consideration given to the issue of assessing the value of having a stream of policy advice on censorship which is not only independent of government but also perceived to be independent of government?

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Mr Anderson—The model that has been adapted is the model that is applied in all Australian jurisdictions where policy is given from the department of the state.

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Senator LUDWIG—In terms of the Attorney-General making the decision, how long was it until the announcement was made for the OFLC to be rolled into the department?

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Mr Anderson—I would have to take that question on notice.

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Senator LUDWIG—What date was the OFLC rolled into the department?

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Mr Anderson—It has not happened yet. The policy function, human resources and some other ancillary functions were incorporated into the department from 1 July 2006. The full integration is scheduled to occur on 1 July 2007. The OFLC still exists.

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Senator LUDWIG—I thought that. I knew that since the last time we spoke you had rolled in the corporate functions. The remaining functions will be rolled in on 1 July 2007?

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Mr Anderson—That is right.

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Senator LUDWIG—What will that entail? Will it entail the commercial premises being sublet?

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Mr Anderson—No. The people will stay in the same place. They have some purpose-built facilities for viewing different types of product. The classification board members who are full time will continue doing that work. It is just that the people who currently support them as part of OFLC will instead be officers of the department, but they will still be providing support to that board and also to the Classification Review Board from the same premises and with the same arrangements for industry in terms of delivery of product, et cetera.

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Senator LUDWIG—On what date did the minister take responsibility for policy development?

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Mr Anderson—On 1 July 2006. That was sole responsibility for the policy. Prior to that it had been shared policy responsibility.

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Mr Govey—Senator, just so that we are clear, you asked, ‘On what date did the minister take responsibility’? The minister, of course, always had responsibility. There was a joint responsibility prior to that.

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Senator LUDWIG—Yes, we understood one another in that sense. I should have said ‘sole responsibility’.

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Mr Govey—He always had sole responsibility. I guess that was my point. Previously what happened was that the responsibility for giving him advice was shared between the department and the OFLC. Nothing changed in terms of ministerial responsibility. All that changed from 1 July 2006 was that the department became responsible for giving the advice.

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Senator LUDWIG—Was the opportunity given to the OFLC to provide a submission—do we want to call it an internal submission or a review; I am open on that—on their view about whether they should be rolled into the department?

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Mr Anderson—No.

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Senator LUDWIG—How was that communicated to them?

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Mr Anderson—My understanding is that the Attorney rang the director.

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Senator LUDWIG—How many full-time equivalent positions were attached to the policy development unit? That might come back you, Mr McDonald, unless Mr Anderson can help. I do not mind who in that sense. I am trying to understand which of those has been brought forward.

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Mr Anderson—Five positions were attached to the policy function.

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Senator LUDWIG—That was prior to the amalgamation. Are they still there, or will they change from 1 July?

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Mr Anderson—Those positions all transferred to Canberra from 1 July 2006.

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Senator LUDWIG—There are two stages to the amalgamation. Prior to 1 July 2006 there were five and post 1 July 2006 there were still five. Is that right?

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Mr Anderson—Those five positions transferred to Canberra.

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Senator LUDWIG—Post 1 July 2007 will it still be five?

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Mr Anderson—We have increased the number of positions. The branch that has the policy function has more than five positions, but it has other functions beyond classification policy. So there are still five positions doing classification policy work.

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Senator LUDWIG—Is there a new policy unit with a new name?

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Mr Anderson—There is a branch called the Classification Policy Branch, which is in Canberra.

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Senator LUDWIG—So those five positions then get rolled into that?

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Mr Anderson—Yes, that is correct.

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Senator LUDWIG—What other responsibilities does it have?

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Mr Anderson—It has responsibility for supporting the Attorney’s participation in SCAG.

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Senator LUDWIG—How many positions in total?

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Mr Anderson—There are eight people currently in that branch.

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Senator LUDWIG—That is in total. How many were there before 1 July 2006?

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Mr Anderson—The branch itself was set up when it was identified that the policy function would transfer.

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Senator LUDWIG—On what date was the branch set up?

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Mr Anderson—I would have to take that on notice.

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Mr Govey—It would have been around that date.

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Senator LUDWIG—There were then three people. Where did the other three people come from?

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Mr Anderson—There is a branch head, a personal assistant who supports the branch head in the branch, and the SCAG officer. The policy function was previously dealt with from within the Office of Legal Services Coordination, which was another part of the division. We moved it out of that and created a separate branch called the Classification Policy Branch.

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Senator LUDWIG—Excellent. So three people in the Office of Legal Services Cooordination who were doing the work of supporting SCAG?

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Mr Anderson—The branch head actually came from a separate area.

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Senator LUDWIG—Could we just look at the positions? I worry about the people but we are talking about positions. I think that might be easier.

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Mr Anderson—The branch head position was a new position created because there was a new branch with a new function. Similarly, the personal assistant position was a new position to support that new branch head position. There was one person, a SCAG officer, in the Office of Legal Services Coordination.

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Senator LUDWIG—So we now have eight in total?

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Mr Anderson—Yes.

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Senator LUDWIG—We have had an increase from five to eight, less one, which was an existing position. We have two new positions created?

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Mr Govey—There was already some work being done on policy within the Office of Legal Services Coordination. I think it is worth making the general point that it is very hard to add up all the little bits that were working on this and then come up with where we are now. Effectively, we sat down again and looked at what structure we were going to need, taking into account the available resources. The branch has been set up in light of current needs, which are not necessarily the same as when you had policy being done from an office in Sydney and an office in Canberra.

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Senator LUDWIG—Yes, Mr Govey. Sometimes it is very hard from this side of the table. If you are telling me that it is hard from your side, I will certainly accept that. Mr McDonald, I know that you are new but this was a process of policy development which might be called, if I use the general term, the hate books—that is, books promoting suicide bombing and atrocities against the West. As I understand the situation, we have a fourfold system dealing with this type of material. I am happy to be assisted here. First, there are criminal offences under section 102.1A of the Criminal Code, which proscribes counselling, praising of or instruction in a terrorist act. Second, there are sedition offences under section 80.2 of the Criminal Code. Third, there is the censorship regime. You have a role—this is already within the capacity of the Classification Review Board to take into account—to refuse classification on the basis of depictions that condone or incite violence. The fourth area involves Customs, if there is an importation. There are regulations that then deal with the importation of refused classification material or the like. Have I missed any? They are the four main ways in which we generally deal with this type of material.

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Ms Davies—Yes, those are the four main ones, although I note that the sedition offences et cetera that you are talking about are not directed at the material itself.

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Senator LUDWIG—That is right. Under the categories and symbols page on your website there is the classification ‘PG’ for films and computer games that contain material that need to be explained to children and, therefore, parental guidance is recommended. The PG content is mild. I refer to the specific example of the Sheik Feiz terror DVD, which was given a PG rating. As I understood it, that matter was raised in the Sydney Morning Herald on 15 April 2005. The question that I have is: how is a film that calls for Muslims to murder non-Islamic people considered mild by the board?

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Mr McDonald—The board considered that material on a referral that was submitted by the Australian Federal Police. It was a clear majority decision to classify the material on that basis.

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Senator LUDWIG—I do not understand one issue. Perhaps you can help me with this. How can a film that calls for suicide attacks or so-called martyrdom be considered mild by the board? How on earth can the board come to the conclusion that a DVD that displays racial hatred by calling Jewish people an army of pigs is mild? I would like to know specifically why the board—which, as I understand the brief, is to be reflective of Australian community standards—considered this material appropriate for young Australian Muslim children aged, say, 10 years, to view.

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Mr McDonald—I am just referring to the actual report. As you clearly understand, this decision was reached before I was appointed to the board, which is not meant to be misunderstood as any repudiation of the decision; it is just that I was not there and familiar with it. It was the board’s view that the classifiable element of the themes—which are the religious themes—was mild in its viewing impact. I am now reading from the report, which states:

The film contains religious themes that have a low sense of threat and/or menace and that are justified by context. The context is a lecture about tenets of the Islamic faith, ostensibly from a fundamentalist perspective.

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Senator LUDWIG—Was the content of the DVD produced in Australia or overseas?

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Mr McDonald—Yes, it was produced in Australia. It is astonishingly undramatic, Senator. A camera is simply trained on somebody who is standing there, speaking.

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Senator LUDWIG—Are you able to provide to the committee the statement of reasons by the board?

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Mr McDonald—I believe I have provided them in full. The report refers to various points—at minute 14 et cetera—

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Senator LUDWIG—I understand the report.

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Mr McDonald—The concluding remark is:

In the Board’s view, the use of the consumer advice “Religious themes” most accurately reflects the content of the classifiable element in the film.

In a minority view of the board, it was stated:

The classifiable elements contained in the film do not exceed “very mild” in impact. The themes are delivered in the manner of a modern-day sermon, and contain references and imagery generally tolerated within the wider Australian religious community.

That was the minority view, but I believe it was a minority of three.

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Senator LUDWIG—It just does not seem sensible to me. How can it be justifiable when it has material or content that allows someone to murder non-believers? If you could provide that report, it would be helpful. I understand, and I am sure Mr Cornall can confirm this, that in the past those reports have been provided to the committee upon request.

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Mr McDonald—Yes. We have the report, Senator. I would be happy to have it provided.

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Senator LUDWIG—Could it be tabled?

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CHAIR—Is it the wish of the committee that the report be tabled? There being no objection, it is so ordered.

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Senator LUDWIG—Are you able to say when the decision was made? Is that demonstrated in the report?

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Mr McDonald—Sorry, your question was the date—

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Senator LUDWIG—The date the decision was made. I am not sure how it works. Do you review the material?

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Mr McDonald—On 9 February 2007.

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Senator LUDWIG—When was it referred to the OFLC by the Australian Federal Police?

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Mr McDonald—I am hazarding a guess that it would have been 20 days prior to that. I will ask Mr Fenton to provide that information. He is a member of the board and a senior classifier.

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Mr Fenton—We would have to take that on notice. We are not sure exactly when the material would have been received, but the director is correct in saying that it would not have been more than 20 days before the decision was made, I believe.

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Senator LUDWIG—Is there a legislative requirement for the decision to be made within 20 days of receiving it?

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Mr Fenton—A statutory requirement, yes.

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Senator LUDWIG—I have not yet seen the decision, but does that provide the names of members who made the decision? We have heard that it was a majority decision but there was also a dissenter. Does it provide the names of the people who were in the majority and the name of the dissenter?

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Mr McDonald—It provides their initials. The names could be provided to you. As you would appreciate from the legislation, the board acts as a group and it is ultimately a board decision.

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Senator LUDWIG—Yes, I accept that. But it is always worth while clarifying that for the purposes of the record. Are those individuals appointed for a period of time?

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Mr McDonald—Yes. They are appointed for either three years or four years.

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Senator LUDWIG—How many classifiers are there at present?

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Mr McDonald—The board consists of 17 members in its current establishment—that is, the director, the deputy director, two senior classifiers, of whom Mr Fenton is one, and the remaining 13 board members.

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Senator LUDWIG—What is their usual term of appointment?

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Mr McDonald—Three or four years.

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Mr Anderson—To add to that: there is a statutory maximum of seven years for the term. It is common for the initial appointment to be for, say, three years.

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Senator LUDWIG—Thank you. Who appointed the decision makers who made the decision in respect of the DVD to which we are referring? Were those appointments made under the current Attorney?

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Mr Anderson—I believe that some of them would have been initially appointed under the previous Attorney, but I will just check that. Yes, a number of them were actually appointed under the previous Attorney. The current deputy director, a senior classifier and two members were appointed under the previous Attorney. The remainder have been appointed by the current—sorry, under the current Attorney; it is still an appointment by the Governor-General on advice of Executive Council.

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Senator LUDWIG—Were the people who made the decision in respect of the DVD all appointed by the Attorney?

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Mr McDonald—It is the mix as described by Mr Anderson.

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Senator LUDWIG—I did not have the decision with me. How many people on the board made the decision? Was it the whole 17?

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Mr McDonald—There were 13 who participated in that voting.

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Senator LUDWIG—Hence my question. Were any of the 13 not appointed by the Attorney-General? Not all of the 17 were.

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Mr McDonald—I am trying to analyse the initials. I think that we had better provide that to you on notice.

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Senator LUDWIG—Thank you.

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CHAIR—Will you take that on notice?

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Mr McDonald—Yes. Chairman, could I correct the date that I gave earlier. I said that the classification decision was made on 9 February. That was the day of the viewing. I am sorry, I misread the report. The board classified them on 1 March 2007.

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Senator LUDWIG—Thank you. I think my next question, on the proposed change, should be directed to you, Mr Cornall, or even to you, Mr Anderson. When was the proposed change to the law to address this area first mooted?

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Mr Anderson—Before the videos in question, some previous publications were described in the media as books of hate. The Classification Board, and then the Classification Review Board considered eight publications. On 10 July 2006 the Classification Review Board refused a classification to two of those hate publications. At the SCAG (Censorship) meeting in July 2006, the Attorney first proposed amendments to the classification act to deal with material advocating terrorist acts.

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Senator LUDWIG—So it was proposed at that meeting on 10 July 2006?

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Mr Anderson—10 July was when the Classification Review Board made a decision about publications.

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Senator LUDWIG—And at the next SCAG following that?

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Mr Anderson—There was a SCAG meeting shortly after that.

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Senator LUDWIG—Would that have been about mid-July?

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Mr Anderson—Late July.

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Senator LUDWIG—How time flies! So it was raised at that time. Was that when it was first proposed?

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Mr Anderson—That is correct.

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Senator LUDWIG—It is interesting that you say that. It seems that in 2005 it was first mentioned by Mr Philip Ruddock in a radio interview with Ray Hadley. I might have to ask the minister to check on this, but was it a matter that popped into the head of the Attorney-General back in 2005 and he did nothing with it? It was a matter that was raised in that interview but it seems to have been sitting there waiting from there on. I could provide the transcript if you want to have a look.

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Mr Anderson—July 2006 was when the Classification Review Board made a decision on these eight publications. They had previously been to the Classification Board. So the issue itself had been known to the Attorney prior to proposing to state and territory ministers at SCAG (Censorship) in July 2006. It was only once the decision of the review board was known that the extent to which there was a problem became clear, as to how the terrorist material and the classification code, act and guidelines interact.

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Senator LUDWIG—So the explanation is that it was a matter that Mr Ruddock first raised in July 2005 in the radio interview. The next time we hear of it is roughly in July 2006 when we learn from a media release from the Attorney that he has written to the states about the issue. I think that was sent on 9 June 2006 and it was entitled ‘Classification review to consider hate material’. So 10 July is probably a little out.

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Mr Anderson—My recollection is that the Attorney referred the matter to the Classification Review Board. I cannot be sure of the exact timeframe leading up to that, in terms of the Classification Board itself considering it.

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Senator LUDWIG—The media release dated 9 June 2006 goes on to state:

The Australian Government will push for censorship laws to be reviewed to assess whether they deal adequately with material which urges or advocates terrorist acts ...

...

Mr Ruddock also has referred eight publications and one film to the Classification Review Board in response to community concerns ...

It got to the Classification Review Board by July and soon after to SCAG?

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Mr Anderson—No. He referred the matter to the review board. I cannot recall the precise dates, but if the press release is dated 9 June then I am assuming that that would be when the Attorney referred the matter to the review board. However, the decision of the review board was on 10 July 2006. That was followed relatively soon after by the SCAG (Censorship) meeting at which the Attorney formally urged state and territory ministers to agree to amend the legislation and the code.

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Senator LUDWIG—We still had a period from July 2005 to write the letter—about a year later. It is almost a year from the time the thought popped into the Attorney-General’s head—at the time of the radio interview—to the time when he took the action of writing a letter.

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Senator Johnston—That is not necessarily surprising, given that I think the AFP had to review the evidence to see whether there was an existing offence. That does take some time. The document that you have given us indicates that there is an element of that. The brief was being reviewed, it came back and then I think the Attorney has looked at what involvement he needed from the states. The problem we have is that if you unilaterally make legislation in the Crimes Act you need to make sure it is not incompatible with existing state legislation. So there is an element of everybody being on the same page, and that does take some time, I must say.

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Senator LUDWIG—He did not give the SCAG ministers that much time to get into the vote. He went to the press and announced it and then ended up in SCAG saying, ‘This is what I want you to do,’ whereas he had already considered it and thought about it 12 months earlier. He had plenty of opportunity a lot earlier to take it to SCAG and say, ‘This is my thinking on the matter.’

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Senator Johnston—It is much better to compare apples with apples.

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Senator LUDWIG—I am happy to hear that you have compared them. What we had in 2005 was Mr Ruddock’s thoughts on radio. It appears to me that it disappeared at that point. In 2007 we learn that a hate-filled jihad DVD was given a PG rating. The Classification Review Board then provides a PG rating, and the Attorney then writes to the states to ask them to come up with a policy in the area within two weeks.

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Senator Johnston—I will take this question on notice and get a chronology of what has occurred. I am sure there is a lot more to it than simply looking at the radio interview and at the end outcome. A lot of consultation has to go on. I will get a chronology for you.

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Senator LUDWIG—We also have the press release entitled ‘States should agree to new test for terrorism material’, dated 15 April 2007. The real crux of the matter is that, when you are doing your chronology, you should also plug in what consultation went to the states at that point; otherwise you have 2005 where the original thinking starts. It concertinaed right at the end where you end up with a press release on 15 April 2007 stating that the states have to agree, and they are given about two weeks to come up with a considered response about all this. If you then say that it has been developed over 2005, obviously from that point the Attorney-General, if he has also consulted with the Australian Federal Police, has had a significantly longer time to consider it, look at the issue and decide on the best course of action.

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Senator Johnston—I do not think that that depiction is accurate, but I will come back to you with a formal response on the chronology.

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Senator LUDWIG—All right.

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Mr Anderson—I have one other thing, Senator. While the chronology will detail in particular what happened from 2005 to 2006, I can say that between the July 2006 SCAG censorship meeting and the 13 April 2007 press release a great deal of work was done by a working party of officials from the states, territories and the Commonwealth seeking to progress the case for the amendment. It was the Commonwealth’s experience that we were meeting resistance from the states and territories at every turn along the way, despite doing a great deal of work seeking to persuade them of the need for the amendments. But the chronology will make clear all of the steps.

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Senator LUDWIG—That will be helpful. Mr McDonald, this is a matter that I suspect you will have to grapple with. Clearly, you were not there, but prior to its absorption into the department—and you are now here almost at the end point of the second wave of absorption, if we can call it that—did the OFLC make public submissions to public inquiries?

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Mr McDonald—Does it make submissions?

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Senator LUDWIG—It did. I am not sure whether it has had an opportunity in the short while, but when it was more independent of the Attorney-General’s Department, did it make public submissions to public inquiries?

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Mr McDonald—I would need to ask about that.

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Senator LUDWIG—I know that you would have to seek advice.

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Ms Williams—I would need to take that on notice.

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Senator LUDWIG—So you cannot recollect whether you have ever made a public submission to an inquiry?

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Ms Williams—I have only recently commenced in the position.

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Senator LUDWIG—We are challenged, aren’t we? All right.

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CHAIR—Senator, do you want to be more specific about the type of inquiry?

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Senator LUDWIG—A Senate committee?

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Senator PAYNE—Clearly the answer to that is yes. I think you have been round the table.

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Senator LUDWIG—Yes, I know. I am just surprised that they did not know, that is all.

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Senator PAYNE—I am happy to help.

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Senator LUDWIG—Thank you, Senator Payne, but I am not sure whether your evidence is that helpful.

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Senator PAYNE—I am not sure that I like that, Senator.

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Senator LUDWIG—In the context that it is not from the OFLC.

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Senator PAYNE—I am sorry.

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Senator LUDWIG—I am not arguing the veracity of it.

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Senator PAYNE—I can assure the office that they have, if that is of any assistance to anyone.

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Senator LUDWIG—I was nearly going to do that too.

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Senator PAYNE—In fact, it is on the website.

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CHAIR—I think Senator Payne and Senator Ludwig are in agreement that you seem to appear in a number of inquiries, so we will take that as fact.

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Senator LUDWIG—It was really a preparatory question to my next one. From 1 July 2007 you will form part of the Attorney-General’s Department. Issues like the work done in sedition—

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Mr Cornall—I think we should correct this. The Classification Board and the Classification Review Board will all be comprised of independently appointed officers. It is the administrative side of the activity which is now part of the department. They are all statutory appointees by the Executive Council—the governor and the Executive Council.

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Senator LUDWIG—I am sorry; I tend to talk in a generic sense, but I am always happy to receive some clarity.

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Senator Johnston—We are happy to correct you when you do.

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Senator LUDWIG—As I said, I am always happy to receive some clarity.

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Mr Cornall—It is a significant point that all members of the board are completely independent of the department.

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Senator LUDWIG—Yes. Could you have a look at submissions outside your own bills. I know that you have made submissions to this committee, but it is also about whether you have made submissions to other inquiries in your capacity as the OFLC, whether it be a Privacy Commission inquiry, an ALRC inquiry, or some other type of inquiry. Mr Cornall, is it correct that the policy unit that produces the work will be absorbed?

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Mr Cornall—That is true.

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Senator LUDWIG—So the people who do the policy development and who might write the ultimate submissions are to be absorbed?

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Mr Cornall—To the Attorney, that is correct.

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Senator LUDWIG—In that sense, the policy unit, which makes submissions to public inquiries and the like, has now been absorbed. Those matters that would have gone towards developing that are now part of the Attorney-General’s Department. How will the Classification Board and the Classification Review Board deal with directing the policy unit to make submissions and do all those things in an independent way? How will that interaction occur?

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Mr Cornall—Well—

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Senator LUDWIG—My question was directed to Mr McDonald—

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Mr Cornall—Good. That is fine.

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Senator LUDWIG—in the sense that he now has to grapple with this, if I can use that expression, and provide an answer as to what you will do to ensure that you will have an independent ability to make submissions and use the policy unit to do that.

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Mr McDonald—If there were a circumstance in which we needed to do so, then we would expect to have the services of the policy unit to assist us.

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Senator LUDWIG—What if it said no, that it was not going to be available to make that inquiry?

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Mr McDonald—The memorandum of understanding will ensure that they will do that.

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Senator LUDWIG—Do you have that memorandum of understanding? Is that available?

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Mr McDonald—It is nearly finalised.

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Senator LUDWIG—What does it provide for in this instance?

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Mr McDonald—In that instance we are not at a final point, but policy support is one of the things that are to be provided under that memorandum.

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Senator LUDWIG—Yes, it is not the board but the OFLC policy unit that makes submissions to inquiries.

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Mr Cornall—We will make submissions to the Attorney.

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Mr Anderson—If there is a question where the director or the board wishes to make a submission to a parliamentary inquiry, for example, they would call upon support from departmental staff in the support area in Sydney, and those departmental staff might discuss matters with the policy people in Canberra. But that is not to say that the only support that can be given is by the policy people in Canberra. It is the departmental people in Sydney who are tasked with supporting the two boards and who would be providing it. They would be the first people to call upon if the director needed assistance to formulate a submission.

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Senator LUDWIG—How do you guarantee that the OFLC will then be able to provide independent work on commissions, inquiries and public submissions if it sits within the Attorney-General’s Department as a policy unit?

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Mr Govey—It will not be the OFLC that is doing it; it will be one of the two boards—either the Classification Board, headed by the director, or the Classification Review Board, headed by the convener of that board. So the OFLC, as such, will not be in existence, but you will have the two independent statutory boards.

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Mr Anderson—I think that is a distinction that is worth drawing: while submissions have previously been made, they have been made by the director in his capacity as the head of the OFLC rather than in his capacity as the head of the Classification Board.

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Senator LUDWIG—Yes. I know that that has been a confusing point. It is not the board that makes the submissions; it is the OFLC, prior to 1 July.

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Mr Anderson—The body that had primary responsibility for classification policy was making the submission, whereas after 1 July the body with responsibility for making submissions on classification policy is the department. So if the director, in his capacity as director of the Classification Board, wished to make an inquiry, the thing that will guarantee the independence of that submission is that it is the director who is making that submission and putting his name and the name of the Classification Board to it. But they would have assistance in preparing that—for example, in carrying out research et cetera—from the departmental staff and they would task those staff with doing research for them. That is a matter that is encompassed by the MOU. The manner in which staff in Sydney provide support to the board can be tasked by the director.

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Senator LUDWIG—Yes, but up to the point where the OFLC, as the independent body, made the submissions, that function will now cease. The policy unit will not do that work any longer. The board has not made those submissions in the past; the OFLC has made the submissions.

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Mr Anderson—The OFLC is the body that had primary responsibility for classification policy. Since the body with primary responsibility for classification policy will be the department, it is more likely that, if there is a question of making a submission on classification policy, it will be made by the department.

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Senator LUDWIG—That is right. How will you guarantee the independence of that?

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Mr Anderson—If the department makes a submission?

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Senator LUDWIG—You have now lost the independence of that. That is right, isn’t it?

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Mr Anderson—I am not sure I understand.

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Senator LUDWIG—The OFLC, as a body, could make independent submissions. It did not have to—

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Mr Anderson—It was still part of government.

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Senator LUDWIG—I am sure it was still part of government.

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Mr Anderson—And answerable to the Attorney.

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Senator LUDWIG—Yes, but it could make submissions. Did they always have to run every submission past the Attorney-General before they tendered it?

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Mr Anderson—That is a question that I would have to direct to the OFLC, as to whether they did on every occasion.

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Senator LUDWIG—I could not discover whether they had ever made one, so we will be challenged to sort that out tonight.

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Mr Anderson—My understanding is that they corresponded closely on such matters with the Attorney and his office. I cannot confirm that myself; that is my understanding.

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Mr Cornall—Senator, another way to look at it is that Des Clark was the senior person in the organisation, representing the organisation in the media and so on. From time to time you would see Mr Clark on television talking about classification issues. If that were to occur it may well be that Mr McDonald fulfils that role as the director of the Classification Board.

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Senator LUDWIG—Thank you. I have no further questions.

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CHAIR—Thank you. Firstly, as chairman, I congratulate you, Mr McDonald, on your appointment, effective, I understand, from 1 May this year. It is a great honour to have you in that position with a very distinguished and comprehensive career. Congratulations.

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Mr McDonald—Thank you.

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CHAIR—I would like to follow up one line of questioning and then make a couple of other points about the Attorney-General’s request of the states to fulfil the commitments that he deemed they had to him and to ensure that they were supporting the new test for terrorism material. I refer to a media release of 15 April by the Attorney-General. The third paragraph states:

He said he was pleased the States had finally agreed the laws for material that praised terrorism should be toughened, but wanted no further delays.

The fifth paragraph states:

If the States and Territories continue to resist, as they have done for more than a year, then I may be forced to go it alone and make this change to the Commonwealth’s Classification Act.

I assume the Attorney would not have said that for no reason or out of his hat. You have taken on notice to come back with the chronology. You can either answer now or take it on notice why some of the states, according to the Attorney or according to my interpretation of his comments, have been dilatory or perceived to have been dilatory in their performance. Could you name the states and advise the committee accordingly?

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Mr Govey—I think we might need to take that question on notice.

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CHAIR—Thank you, Mr Govey.

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CHAIR—I want to ask about the guidelines for the classifications of films and computer games. I understand that a review is taking place or is soon to take place. Can you advise whether that the case. If so, what is the process for the review?

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Mr Anderson—No review is currently envisaged for those guidelines.

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CHAIR—I want to ask about Dr Nitschke’s The Peaceful Pill Handbook, which I understand has recently been refused classification. Can you advise the reasons for that refusal?

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Mr McDonald—I will go to the report of the board.

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CHAIR—Is that a report like the other reports that you are able to table?

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Mr McDonald—It is. The Classification Review Board made a decision on 24 February to refuse classification.

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CHAIR—I am interested in the reasons and whether you are able to table that decision.

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Mr McDonald—I certainly can. It is a very long report but I am happy to table it.

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CHAIR—Thank you. I understand one of the key reasons was that the document instructed in matters of crime, ancillary to committing suicide, and specifically the importation or manufacturing of a prohibited substance. That was one of the specific reasons for its refusal.

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Mr McDonald—The manufacture of barbiturates—that is correct.

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CHAIR—What steps are being taken to ensure that material which promotes or instructs suicide specifically is refused classification?

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Mr McDonald—It would not be our responsibility to take steps generally. We respond to specific publications when they come before us.

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CHAIR—If there was a specific publication which instructed or promoted suicide, what category would that fall into?

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Mr McDonald—I will ask Mr Fenton to provide the answer.

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Mr Fenton—The board’s understanding is that suicide is not a crime in Australia in any of the jurisdictions; therefore, it would be looked at in the context of any material the board received under the act, the code and the classification guidelines.

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CHAIR—I will just seek clarity from the department as to whether that is the case.

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Mr Anderson—Yes, Senator.

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CHAIR—There is no reason to refuse classification of a publication which promotes or supports suicide?

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Mr Anderson—Senator, under the National Classification Code, publications must be refused classification if they ‘promote, incite or instruct in matters of crime or violence’, which is where you need the link back to crime.

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CHAIR—Crime or violence?

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Mr Anderson—Crime or violence, or if they ‘describe or otherwise deal with matters of … crime, cruelty, violence or revolting, or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults’. That is the test the board has to apply.

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CHAIR—Are we saying that suicide does not fall within that test? Is that what we are saying? Is that your response?

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Mr Anderson—Senator, the application of guidelines is a matter for the board. It is a judgement that the board itself has to make.

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CHAIR—Thank you very much for that. Mr McDonald, thank you again, and congratulations on your appointment.

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Mr McDonald—Thank you, Senator.

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CHAIR—We will move on.

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Mr Anderson—Senator, just before you move on, there was one question I took on notice earlier about the period between the decision of the government on the integration of OFLC and the actual announcement. Could I just address that. There was a period of two days between the decision and the public announcement.

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CHAIR—Thank you, Mr Anderson.

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Senator LUDWIG—The only other question I have is about the original process that went through for the appointment. What was the cost for the preparation of applications, the advertisement and the position?

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Mr Cornall—In the first instance there would have been advertising costs and some other attendant costs associated with the process. In respect of the second part of the process, I think there were advertising costs but certainly, obviously, the costs to the executive search agency. I do not have those details with me, but we can provide them on notice.

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Senator LUDWIG—Thank you. That would be helpful.

[8.24 pm]

Update June 3rd 2007
Refused-Classification.com 

Updates: June 2007 Part 2