The R-rating of Gaspar Noé’s IRREVERSIBLE was twice challenged by a coalition of Christians and conservative politicians.
The Classification Review Board upheld the rating, and thanks to the free publicity, it went on to have a successful theatrical and DVD release.
Directed by Gaspar Noé / 2002 / France / IMDb
In 2003, IRREVERSIBLE was programmed to screen around the country at the French Film Festival. It had caused some controversy at the Cannes Film Festival due to Monica Bellucci’s extended rape scene.
March 7, 2003
The Office of Film and Literature Classification has granted an exemption to the organisers of Sydney’s French Film Festival, allowing director Gaspar Noe’s film to be shown four times as part of the event. The screenings – at the Palace Academy Twin and Norton Street cinemas – will be restricted to an over-18 audience.
The general manager of Palace Cinemas, Nicolas Whatson, saw Noe’s film at Cannes. He said he had to “look away” from the screen several times, but was convinced of its artistic merit.
“I thought it was one of the most confronting and disturbing experiences I’ve had [at the cinema], but it was also an undeniably powerful, challenging and important piece of filmmaking,” he said.
“I don’t believe it is exploitative and it’s a completely appropriate film to screen in the festival context.”– Sex and violence screen-shocker to open here uncut
– article @ smh.com.au
During March and April, it played in Canberra, Sydney, Melbourne, Brisbane and Perth.
Only in Adelaide did it have problems when Michael Atkinson, the South Australian Attorney-General, failed in an attempted to stop it from showing. He claimed that his issue was incorrectly prepared paperwork.
April 1, 2003
“I would be happy for them [French Film Festival] to re-submit it. There may be some fault with the form.
It certified that the film contained no explicit sexual or violent scenes, but I read the plot notes and that was not true.
I would be derelict in my duty if I had ticked off on it. I would be signing something I knew to be false. So I sent a note telling them to get back to me that this film would not be refused classification.
If it is not a film which has been refused classification; if it is R18 plus and they assure me no one under 18 will be attending, it can be reversed.”– Michael Atkinson (Labor), SA Attorney-General
Atkinson was involved with escalating complaints against other films such as I SPIT ON YOUR GRAVE (1978), ANATOMY OF HELL (2004), 9 SONGS (2004) and MYSTERIOUS SKIN (2005). In addition, his veto was the main reason that Australia took so long to introduce an R18+ rating for games.
On the day that the French Film festival opened in Adelaide, Diana Laidlaw (Liberal) questioned Paul Holloway (Labor) about the background to the IRREVERSIBLE case. This is a rare occurrence of a Liberal politician speaking out against film censorship.
April 2, 2003
The Hon. DIANA LAIDLAW: I seek leave to make a statement before asking the Minister for Agriculture, Food and Fisheries, representing the Premier and Minister for the Arts, a question on the subject of film censorship.
The Hon. DIANA LAIDLAW: Tonight the Premier and Minister for the Arts will open the French Film Festival which, as of late yesterday, will now include the film IRREVERSIBLE. This follows the last-minute reconsideration by the Attorney-General of his decision in January to refuse to give the film an exemption from classification. As far as I am aware, this is now the second occasion in less than 10 months on which the Labor Attorney-General, the Hon. Michael Atkinson, has flirted with censorship of films screened everywhere else in Australia and overseas but not Adelaide. There may be other occasions, as well, of which I am not aware.
In a media release issued on 10 May 2002, the Attorney-General highlighted that, if the film BAISE-MOI had been brought to his attention earlier following its R18+ classification the previous October, he would have ‘ensured it would never be screened in South Australia’. All honourable members will respect that, throughout the western world and possibly beyond, film censorship is regarded as a very serious matter. The Premier and Minister for the Arts must be acutely embarrassed by his Attorney-General’s enthusiasm for censorship in film at the very same time that he is committing millions of dollars of South Australian taxpayers’ money seeking to establish Adelaide as a base for an international film festival.
Incidentally, the Adelaide International Film Festival, which the Premier is promoting as the biggest in the southern hemisphere and possibly a rival to Cannes, is noteworthy in view of the fact that the film IRREVERSIBLE was shown at the Cannes Film Festival last year without incident. I ask the following questions:
1. Was the Premier and Minister for the Arts consulted prior to the Attorney-General’s decision in January this year to refuse to give the film IRREVERSIBLE an exemption from classification and, if not, why not?
2. When did he first learn that the Attorney-General had refused the exemption?
3. At any time since learning of the Attorney-General’s decision in January did the Premier or anyone on his behalf seek to influence the Attorney-General to reconsider and reverse his January decision?
4. Does the Premier consider that the current arrangements, both legislative and administrative, as exercised by the Attorney-General are satisfactory, or should they be amended to ensure this government no longer sends mixed messages around the world regarding film culture in this state?
The Hon. P. HOLLOWAY (Minister for Agriculture, Food and Fisheries): I am sure that this is a subject with which the honourable member can speak with some authority, because we well recall during the term of the last government when the Hon. Trevor Griffin on a number of occasions—
The Hon. A.J. Redford interjecting:
The Hon. P. HOLLOWAY: At least one occasion. What was it: SWEET SWEETBACK’S BAAD ASSSSS SONG , I think it was called.
The Hon. P. HOLLOWAY: Well, it was one occasion.
The Hon. Diana Laidlaw: Don’t mislead.
The Hon. P. HOLLOWAY: I would have thought that if anything was misleading it was the honourable member’s question. After all, she was trying to suggest that what is happening under this government is something—
The PRESIDENT: Order!
The Hon. P. HOLLOWAY: That particular film was prevented—
The Hon. P. HOLLOWAY: I will refer to it in a moment but first I will make some comments. I have that luxury and I am going to exercise my right. As I said, I am sure the honourable member would speak with some authority. When she was talking about the Premier being acutely embarrassed, I can only assume that the honourable member is suggesting that she was acutely embarrassed when that film was censored. I read the paper the other day and noted the comment of my colleague the Attorney, who said that all he was seeking was for the film to be correctly classified. That was certainly his comment in the press. On this occasion I think it is very important that we get the facts, and I will ensure that the honourable member—
The PRESIDENT: Order! The Hon. Ms Laidlaw will take her punishment in silence.
The Hon. P. HOLLOWAY: I will ensure that on this occasion we do get the facts about what happened in this case. The honourable member said that the Attorney had flirted with censorship, but that would not appear to be the case, if the press reports in the early papers were correct. I will make sure that we get an accurate description of what happened in this case and bring back a reply.– Film Censorship
– SA Legislative Council
R-rated by the OFLC
On 26 November 2003, IRREVERSIBLE was passed with an R (Strong sexual violence, Graphic Violence, Sexual activity) rating.
The applicant was the newly formed Accent Film Entertainment.
January 31, 2004,
Alex Meskovic, manager of the Chauvel in Paddington, which will show the movie along with the Valhalla in Glebe from February 12, is surprised the rape-and-revenge drama was not banned by the Office of Film and Literature Classification. “I would like to congratulate the OFLC for passing it, just like they passed BAISE-MOI,” Mr Meskovic said.
For Mr Meskovic, an R-rating is not necessarily the end of the matter. BAISE-MOI screened at the Chauvel for four weeks in 2002, before having its classification withdrawn after a review instigated by the then attorney-general Daryl Williams, acting on a complaint from a member of the public.
How do BAISE-MOI and IRREVERSIBLE compare? “BAISE-MOI was a low-budget movie which had a lot of people killed and in which people f—ed a lot,” Mr Meskovic says. “IRREVERSIBLE is very stylised. Right from its narrative structure and its use of the camera, it’s for people who are into cinema.”
“Not everybody will be able to handle it, from the strobe lighting to the swirling camerawork. And we will make sure people will be warned.”
The OFLC unanimously classified the film R on November 26.
“The impact of the [rape] scene is high due to the lengthy, real- time depiction of the act of sexual violation,” its report read. The report described an “act of violence that is not eroticised in any way”.
“The film has artistic merit and serious intent,” it said.– Rape-revenge drama to screen
– article @ smh.com.au
It was later noted that, following media reports, the Australian Family Association had first requested a copy of the OFLC decision on February 3. This was presumably referring to the above-mentioned article.
February 13, 2004
…the director of the OFLC, Des Clark, says the IRREVERSIBLE rating was the result of applying standard guidelines to the film. He adds that narrative and dramatic context is important with such extreme content, especially in the portrayal of sexual violence, which is strictly forbidden in porn films.
“This film is very confronting and we look at the context and the impact of the film, so we do look at the drama of it,” Clark says. “But in evaluating IRREVERSIBLE, there were three elements that were of concern to the board.
“One was the sexual violence; two was the violence; and three was the (real) sexual activity in the film.
“The sexual violence was very confronting in the rape scene with the knife and then the bashing after that. You don’t see any detail in any of that,” he says. “The detail that you see is, in fact, when she is taken to the hospital and you see the consequences of the bashing. As much as it’s a very dramatic scene, it is simulated. You don’t see a lot but you do have a very realistic sense of threat and menace. Within the impact test for an R-rating, it’s very high.
“So, in that sense, the board had concerns about it, but they were prepared to say, `Well, it does fit within the guidelines, it does fit within the code’, and if we look at the section on that in the act it does have merit. Context and impact is part of the test we apply against an R-rating. Therefore, we’ve got a (film) complying through the chain of instruments we have in making a decision.”
There is a fine line between “high” and “too high”, says Clark.
In a daring move, director Gaspar Noe digitally painted in an erect penis immediately after the rape to heighten the horror. Too much of that kind of detail is the type of thing that could have pushed IRREVERSIBLE over the line but the fact that the director focused on creating a graphic impression instead of dwelling on graphic detail made a big difference.
“Absolutely,” Clark says. “It’s very high level, so it was always going to be looked at very carefully but it was a unanimous decision by the board in relation to it. So it wasn’t as though there was a huge split like we’ve had with some other films.”
So much for the sexual violence of IRREVERSIBLE. Clark also addresses the violence of that shocking opening sequence.
“The board said in relation to that: ‘In the board’s view, the impact of this scene is high, due to the graphic visual nature of the violence together with realistic sound effects. Despite the darkened surrounds, the act of crushing the man’s face is depicted in medium shot and is the main focus of the scene.”
“So they considered it to be high, but once again, as much as it was the main activity, it was lit with that red light that permeated the whole scene, and so the impact was diminished, even though it was an horrific scene.”
The general rule regarding sexual activity in film is that simulated is fine but actual sex is not. However, Clark admits after some pressing of the point, there has been some loosening up. The passing of ROMANCE, which featured real sex, seems to represent a modest watershed in this regard.
“I suppose that did represent a shift, and there have been a few films since then which, in terms of impact and context, would have had small amounts of actual sexual activity in them. But it’s not a huge ground shift. So yes, there has been a few films where this has happened but the board generally takes a fairly conservative view on actual sexual content and violence.”
BAISE MOI also featured real sexual activity and IRREVERSIBLE does feature glimpses of men masturbating in the gay club. Those scenes, Clark explains, were acceptable because they constituted “peripheral sexual activity but that was really background to the main action. There is a very, very small amount of peripheral, actual sexual activity. It’s very small, nothing like that in ROMANCE or KEN PARK.”
Given that the OFLC classifies hundreds upon hundreds of publications, video games and films each year without drawing any attention, it is decisions over films such as IRREVERSIBLE that put the OFLC and its processes under intense scrutiny. Clark openly welcomes it.
“Some decisions we make are roundly criticised, others are praised and they’re from across the spectrum of views in the community. It’s a healthy thing that people are looking at what we do. There were some people who were very unhappy with the IRREVERSIBLE decision. Others will see it as being a positive.
“We just seek to be consistent in our decision making, so there’s no ground shift or anything particularly special about this film. It’s just another decision that the board has made.”– Censors and Sensibilities
– article @ theage.com.au
A week after the theatrical release, the media coverage alerted Fred Nile to the film. The fact that he claims to have ‘just discovered’ it indicates the likely source was the above-mentioned ‘Censors and Sensibilities’ article published in the Fairfax press five-days earlier.
February 19, 2004
Rev Fred Nile MLC, Leader of the Christian Democratic Party has written to the Federal Attorney General asking for the film IRREVERSIBLE to be prohibited from screening in Australia. His letter is as follows: “I have just discovered that the film IRREVERSIBLE, which created some controversy when it was screened during several film festivals in Australia last year, was classified “R” by the OFLC last November.
This film would have contravened the OFLC guidelines operating before March 2003. It contains a scene of actual fellatio – with explicit genital contact – clearly prohibited under the old guidelines.
It opens with a scene of excessive, graphic, detailed violence – a man’s head is beaten to a pulp with a fire extinguisher. It contains an excessively prolonged and disturbing (nearly ten minute) scene of anal rape. Many women, even film reviewers, were sickened by this 9 minutes of brutal sodomy. [See review at: http://www.nypost.com/movies/55502.htm]
The guidelines say that films will be refused classification if they contain, among other things, “violence with a very high degree of impact or which are excessively frequent, prolonged or detailed; sexual violence, cruelty or real violence which are very detailed or which have a high impact.”
The high impact of the violence in this film was so great that large numbers of people walked out during screenings, despite being warned of the content in advance.
Has the OFLC become desensitised to graphic sexual and other violence? Is there no film with violence of impact high enough to be refused classification?
The new guidelines are written in relative terms – “high impact” receives a higher rating than “low impact”. When the boundaries are pushed, and films which would formerly have received an “RC” classification are rated “R” instead, the whole system moves in a more permissive direction.
As more explicit sexual and other violence is allowed in the R category, so the boundaries are made more libertarian in MA, M, PG – even G films are ultimately affected. I urge you, as Attorney-General in the national interest to request the Film Review Board to review the “R” classification given to the film IRREVERSIBLE and to prohibit its screening in Australia”.– ‘Irreversible’ unforgivable?
– Christian Democratic Party
Nile claims that one of his concerns was that passing the film meant ‘…the boundaries are made more libertarian in MA, M, PG’.
He should consider that this approach allowed THE PASSION OF THE CHRIST (2004) to be passed with an MA15+ rating in Australia. In the UK and Canada, it was restricted to those 18 or over and was R-rated (17+ unless accompanied) in the USA.
Nile gushed over it on release, saying ‘I believe THE PASSION OF CHRIST, through Mel Gibson’s inspired faith and leadership, was produced by the guidance of Almighty God through the Holy Spirit in the studios of heaven’.
By mid-March, the Sydney and Melbourne theatrical run was ending and IRREVERSIBLE was preparing to move to other capital cities.
However, on March 19 the Australian Family Association (AFA), with the support of Fred Nile, applied to have the rating reexamined. There was some delay in accepting the application as they also requested a fee waiver. Not only did they want it banned, but they also did not want to pay for the privilege. The Classification Review Board refused their request, so it was not until the fee was paid and the wheels began to turn.
March 23, 2004
The Classification Review Board has received an application from the Australian Family Association (AFA) for review of the Classification Board’s decision for the French film IRREVERSIBLE.
IRREVERSIBLE was classified R18+ with the consumer advice, “Graphic violence”, by the Classification Board on 26 November 2003.
Although reports in the media indicated that the review had been confirmed as early as Monday 22 March 2004, procedural issues concerning the payment of fees meant that requirements for an application for review were not satisfied until late this afternoon.
There has been no date for a review of IRREVERSIBLE set by the Classification Review Board.
The Classification Review Board’s decision and reasons for its decision will appear on the OFLC website when finalised.
Issues for consideration by the Classification Review Board include:
– whether the AFA has standing to apply for review, and
– whether the Review Board should exercise its discretion to accept the application from the AFA outside the 30 day statutory time limit following the film’s classification by the Classification Board.
The Classification Review Board is an independent merits review body that meets in camera to make a fresh decision on classification matters previously determined by the Classification Board.– Application for review of the film Irreversible received
– Maureen Shelley, Convenor, Classification Review Board
Fred Nile was immediately chalking this up as another win.
March 23, 2004
“I congratulate the Classification Review Board for its decision to review the controversial film IRREVERSIBLE which has sickened members of the audience, resulting in walkouts from the theatre,” said Rev Fred Nile. The Rev Fred Nile went further and has called on elements of the art and film industry to see the bigger picture when it comes to the classification of such films, especially in the midst of footballer gang rapes etc.
“I understand that some elements of the art and film industry may willingly attribute the explicit depiction of a young woman being violently and graphically sodomised for nine long minutes as art, but classification exists for a purpose. It exists to protect the young, the impressionable and the vulnerable from the adverse effects from what some would call “entertainment”. It will come as no surprise that I fail to see the ‘entertainment’ in witnessing young women degraded, abused and raped in such films and productions. I find the whole notion of it being labelled art abhorrent!
Thousands of Women in our Nation and State still suffer from rape, physical, emotional and psychological abuse every year. Whilst some dismiss these behaviours as the remnant of darker age in sex stereotyping that will die out of its own accord, empirical data states otherwise. According to the 2003 report on Australian crime by the ‘Australian Institute of Criminology’, reports of sexual assault against young women had increased by 23% in the six years leading up to the end of 2002, and these offences were increasingly committed by younger and younger males. We’ve all seen it throughout our papers and news broadcasts, the young male gangs and now even our young sporting stars. Our society can no longer afford to stick its heads in the sand and pretend the problem doesn’t exist!
It doesn’t take a brain surgeon to recognise that with the break down of the traditional family unit, young men aren’t getting the much needed role modelling and extrinsic reinforcement of appropriate social attitudes. Many have no positive Fatherly / Mentor / Educational input into their lives and turn to their peers and media to form their opinions of women.
It is widely accepted scientific knowledge that such films as IRREVERSIBLE present inappropriate conditioning stimuli to vulnerable elements of our society and attract high-risk offenders. Dean O’Flaherty from the film’s distributor ‘Accent Film Entertainment’ may be touting the high ideals of “Freedom of speech” and “Freedom of artistic expression” as reasons for allowing his commercial venture to continue, but at what cost to society? There needs to be a line drawn and a stand taken.
I am somewhat disturbed by the predictable comments of SBS movie critic Margaret Pomeranz, who has taken a stand to defend the film. Whilst I respect her experience, skill and credentials in her field, I have to wonder whether she fully understands the gravity of the situation facing our society. She may claim that IRREVERSIBLE is a “serious work of cinema”, but I doubt she’ll ever convince a rape victim of that opinion, however qualified. She may claim that censorship causes her to weep, but my tears will be reserved for the 6,480 young NSW women who had the courage to report rape in 2002. My tears will be reserved for the projected 8,000 young NSW women who will report being raped this year!
I welcome the review of the French film IRREVERSIBLE and commended the Classification Review Board for its courage to take action and consider the broader issues and impact on our society”, the Rev Nile said.– Irreversible Rating
– Christian Democratic Party
March 26, 2004
The Classification Review Board will meet on Tuesday 30 March 2004 to consider the application for review of the film IRREVERSIBLE.
An application for review of the Classification Board’s decision for the film IRREVERSIBLE classified R18+ with consumer advice ‘Strong sexual violence, Graphic violence, Sexual activity’ has been received by the Classification Review Board from the Australian Family Association (AFA).
The Review Board will be constituted by the Convenor, Ms Maureen Shelley, Dr Robin Harvey and Mr Rob Shilkin.
The Review Board’s decision and reasons for its decision will appear on the OFLC website when finalised.– Review date announced for the film Irreversible
– Maureen Shelley, Convenor, Classification Review Board
Last-minute Christians fail
On the day of the meeting, the Classification Review Board declined to allow an extension as the AFA had not provided an adequate reason for delaying their application.
March 30, 2004
The Classification Review Board met today to consider an application for review of the classification of the film, IRREVERSIBLE, which is classified R18+ with the consumer advice, ‘Strong sexual violence, Graphic violence, Sexual activity’.
The Classification Review Board exercised its discretion not to hear the application on the basis that it was out of time.
The Classification Review Board convened in response to an application from the Australian Family Association. It considered submissions from the Australian Family Association, and the film’s distributor, Accent Film Entertainment.
In considering the out of time application and after viewing the film, the Classification Review Board considered there was virtually no prospect of the film’s classification changing.
It did not consider if the Australian Family Association had standing to apply for review of the film as a ‘person aggrieved’.– Classification Review Board determines review for Irreversible out of time
– Classification Review Board
The full report provides a timeline of events that led up to the review. It notes that the Attorney-General, Philip Ruddock had declined the AFA request for the classification to be reexamined.
March 30, 2004
23-33 Mary Street, Surry Hills, NSW
Ms Maureen Shelley (Convenor)
Mr Robert Shilkin
Ms Kathryn Smith
Australian Family Association (AFA) represented by Mr Damien Tudehope (Solicitor)
Accent Film Entertainment Pty Ltd (Original Applicant) represented by Mr Dean O’Flaherty (Marketing and Acquisitions Manager)
Ms Raena Lea-Shannon (Solicitor)
Mr Douglas Stewart (Classifier);
-To consider whether the Review Board should exercise its discretion to accept the application for review of a decision outside the prescribed period
-To consider whether the AFA has standing to apply for review
– To review the Classification Board’s (the Board) decision to classify the 35mm format film IRREVERSIBLE R18+ with the consumer advice “Strong sexual violence, Graphic violence, Sexual activity”
DECISION AND REASONS FOR DECISION
The Classification Review Board (the Review Board) determined that
(a) an application for review of the decision of the Classification Board made by the AFA was made outside the time stipulated in section 43(3)(a) of the
(b) it should not exercise its power under section 43(3)(b) to allow the making of the application for review outside 30 days stipulated in section 43(3)(a) of the Classification Act.
2. Legislative provisions
The Classification Act governs the classification of films and the review of classification decisions. Section 9 of the Classification Act provides that films are to be classified in accordance with the National Classification Code (the Code) and the classification guidelines (the Guidelines).
Section 42(1)(d) of the Classification Act provides that a person aggrieved by the decision may apply to the Review Board for a review of a decision.
Section 42 (3) and (4) deem particular persons, organisations or associations, who fit within the requirements of the section, to be “persons aggrieved” in relation to a “restricted decision”. A restricted decision includes a decision to classify a film R.
Section 43(3) of the Classification Act provides that an application for review must be made (a) within 30 days after the applicant received notice of a decision; or (b) within such longer period as the Review Board allows.
3. Background and Procedure
Between 6 March 2003 and 6 April 2003 screenings of IRREVERSIBLE took place in Canberra, Sydney, Melbourne, Brisbane, Adelaide and Perth during the French Film Festival. At that time the film had been granted a Film Festival exemption by the Director of the Classification Board. There was media coverage regarding the Festival and the nature of the film IRREVERSIBLE.
On 30.10.03 an application by Accent Film Entertainment dated 28.10.03 for classification of the film IRREVERSIBLE was received by the Applications Section of the Office of Film and Literature Classification (OFLC).
On 19.11.03 the Classification Board determined a classification for IRREVERSIBLE of “R18+ (Restricted)” with the consumer advice “Strong Sexual Violence, Graphic Violence and Sexual Activity.”
On 26.11.03 a Classification Certificate for the IRREVERSIBLE was issued and sent to Accent Film Entertainment Pty Ltd. By 27.11.03 the determination was published on the public database on the OFLC website.
The AFA submitted that it first became aware of the decision of the Classification Board to give IRREVERSIBLE an R18+ classification through various media reports published during February 2004. A notice of the decision of the Classification Board on IRREVERSIBLE was provided by the OFLC to the Perth office of the AFA on 3 February 2004.
Screenings of IRREVERSIBLE were held on the weekend of 7 and 8 February and received some publicity in the national media. Subsequently IRREVERSIBLE was screened at the Chauvel and Valhalla cinemas in Sydney, and at the Lumiere cinema in Melbourne. At these screenings the classification determination and consumer advice were publicised.
Mr Egan of the AFA wrote a letter dated 9.03.04 to the Convenor of the Classification Review Board seeking a review of the Classification Board’s decision to classify the film IRREVERSIBLE “R18+” and seeking advice of fees and any additional steps in pursuing the review. This was received by fax on 10.03.04.
By fax dated 10.03.04, the Secretary of the Review Board wrote to the AFA enclosing an application form for completion and advising of the fee for review, noting that until a signed application form and prescribed fee were received, the matter would not be considered for review.
On 10.03.04 the Secretary of the Review Board spoke to Mr Richard Egan of the AFA by telephone. Mr Egan raised preliminary issues and suggested that fees should not be payable unless a substantive review of the film was held.
The Secretary agreed to seek further guidance from the Principal Policy Officer at OFLC and to keep him informed about the Review Board’s progress in dealing with the issue.
Mr Egan wrote a letter to the Review Board dated 10.03.04 confirming his conversation with the Secretary. The letter asserted that the prescribed fee of $2820 was only payable if there was a substantial review, and there was no fee for deciding preliminary questions of standing and whether to accept the application out of time. The letter proposed options for proceeding without paying fees.
On 12.03.04 the Secretary of the Review Board spoke again with Mr Egan of the AFA. She confirmed that she was working on the issues he had raised and would get back to him as soon as she had obtained further directions from the Convenor.
In a letter of 15 March 2004, faxed to the AFA the Secretary advised that:
– an application for review must be accompanied by the prescribed fee
– the AFA could apply to the Director (of the Classification Board) to have the prescribed fee waived
– the Convenor had advised that as preliminary issues would involve a consideration of the merits of the substantive application for review the preliminary issues and substantive issues would be dealt with in one hearing
– until an application accompanied by fees, or a fee waiver, was received the Review Board would not treat the application as having been lodged.
In a letter of 15 March 2004 to the Director seeking a waiver of fees, the AFA stated that:
– the OFLC provided the Board’s reasons for its decision by fax on 03.02.04
– it also wrote to the Attorney-General, Philip Ruddock, asking him to apply for review of the decision on 03.02.04
– the Attorney-General, Philip Ruddock replied to the AFA’s letter declining to apply for review of the decision on a letter dated 03.03.04, but the letter was actually received on 09.03.04
– the Review Board replied (to the AFA’s fax of 10.03.04) on 15.03.04 ignoring its arguments and asserting that the prescribed fee was payable whether a substantive hearing proceeded or not; and proposing it apply for a fee waiver.
In a letter of 17 March 2004 faxed to the AFA on that date, the Director confirmed that a payment of fees or fee waiver was necessary before the Classification Review Board could consider an application for review and that the Review Board has no power to waive fees or to refund fees in the event that preliminary issues were not determined in an applicant’s favour. An additional application form was faxed. Confirmation was also sought as to the grounds on which the AFA sought a fee waiver.
On 17 March 2004, the AFA lodged via fax the completed application form and confirmation that it sought a waiver of fees.
On 23 March 2004, the Director advised the AFA in writing that the fee waiver had been granted.
On 30 March the Review Board viewed a screening of IRREVERSIBLE. The parties were invited to the screening. The applicant was represented by Mr Damien Tudehope. The original applicant did not attend the screening.
Following the screening the Review Board convened a meeting to determine the application by the AFA.
The Convenor advised the parties that the Review Board proposed to deal first with the out of time issue, followed by the matter of whether the Australian Family Association had standing as a person aggrieved and then the substantive application of review of the decision of the Classification Board.
The parties did not object to this process.
The Convenor provided a copy document, prepared by the Review Board secretariat, of significant dates regarding the film IRREVERSIBLE to the applicant and original applicant. This document was accepted by the parties as being an accurate statement of the order of events. The chronology established by that document is reflected above.
The Review Board heard oral submissions on the “out-of-time issue” on behalf of the AFA from Damien Tudehope and on behalf of the original applicant –Accent Film Entertainment – from Raena Lea-Shannon of Michael Frankel & Co. Solicitors and Douglas Stewart, classifier. Written submissions were also received from each of these representatives. The Review Board also received a written submission from the Communications Law Centre.
After an adjournment to consider the matter the Review Board made its determination and advised the parties. The Review Board did not determine whether the AFA was an ‘aggrieved person’ within the scope of section 43(1)(d) of the Classification Act’ or the substantive review of the decision.
4. Evidence and other material taken into account
In making its determination the Review Board had regard to the following:
(i) the Australian Family Association’s application for review (including written and oral submissions);
(ii) the written and oral submissions on behalf of Accent Film Entertainment
(iii) the relevant provisions in the Classification Act; and
(iv) principles described by Wilcox J in Ltd & Ors v Cohen 3 FCR 344 (‘Hunter Valley’) and subsequent Federal Court and Federal Magistrates Court cases as being relevant to determining whether to grant an application for an extension of time in which to lodge an application.
The Classification Board stated in its report regarding IRREVERSIBLE:
“In a Paris sex club, Marcus and Pierre are on a frenzied night time search for a man. Overcome by rage and despair, they are involved in a brutal act of violence. The reason is revealed as the story plays out in reverse. Marcus’s girlfriend Alex is brutally raped and bashed after a party. The complex relationship between Marcus, Pierre and Alex also unfolds and the film ends with Marcus and Alex as yet untouched by the horror that awaits them
The Review Board accepted this view of the product.
6. Findings on material questions of fact
The Review Board found that
(a) the decision of the Classification Board was published to Accent Film Entertainment Pty Ltd and on the OFLC website by no later than 27 November 2003;
(b) the AFA was sent a copy of the classification decision on 3 February 2004;
(c) by the time the AFA made an application for review which complied with section 43(1) of the Classification Act (17 March 2004) more than 30 days had passed since the AFA and Accent Film Entertainment Pty Ltd had received notice of the decision of the Classification Board.
In these circumstances the Review Board found the application for review of IRREVERSIBLE to have been lodged outside the 30 day period for application for review of a decision specified by section 43(3)(a) of the Classification Act.
7. Reasons for the decision
Was the application made within the period prescribed by section 43(3)(a) of the Classification Act?
The classification certificate for the film IRREVERSIBLE was issued on 26 November 2003 and notice to that effect was posted on the OFLC public website by no later than 27 November 2003.
The AFA states in its written submission:
“The Australian Family Association first became aware of the decision of the Classification Board to give IRREVERSIBLE an R18+ classification through various media reports published during February 2004. A notice of the decision of the Classification Board on IRREVERSIBLE was received, as requested, by facsimile from the Office of Film and Literature Classification at the Perth office of the Association on 3 February 2004.
“supplied], asking him to exercise his prerogative under Section 42 of the Act to apply for a review of the decision. We received a reply from Mr Ruddock, dated 3 March 2004 on 9 March 2004, declining to request a review of the decision. [Copy supplied].
“period may have expired on 4 March 2004 the Classification Review Board should exercise its discretion under Section 43 (3) (b) to allow extra time for the appeal. It would have been unreasonable for the Association to independently initiate a review, which may have exposed us to a cost of $2,820 in the event we could not obtain a waiver of fees, while waiting to hear from the Attorney-General as to whether he would himself apply for a review.”
There had been correspondence between the OFLC and the AFA commencing 3 February 2004. Correspondence between the Review Board Secretariat and the AFA commenced on 9 March 2004.
The AFA lodged an application in the approved form for review of the classification of the film on 17 March 2004 and at the same time lodged an application for waiver of fees under Section 91 of the Classification Act with the Director of the OFLC. The fee waiver was granted on 23 March 2004.
Sub-section 1 of Section 43 of the Classification Act states
(1) An application for review of a decision must be:
(a) in writing; and
(b) made in a form approved by the Convenor in writing;
(c) signed by or on behalf of the applicant; and
(d) except for an application by the Minister –accompanied by the prescribed fee.
These basic requirements for an application were, therefore, satisfied on 23 March 2004.
Sub-section 3 of Section 43 of the Classification Act states:
Any other application for review of a decision must be made:
(a) within 30 days after the applicant received notice of the decision; or
(b) within such longer period as the Review Board allows.
It is noted that the AFA had conceded that it was lodging an out of time application. However, it was the AFA’s submission that it “received notice of the decision” on 3 February 2004 when it received a fax from the OFLC regarding the film’s classification. The applicant argued that the 30-day notice period commenced from this date. Even on this view its application fell outside the time prescribed by section 43(3)(a) of the Classification Act.
It has been the consistent practice, during a number of years, for the Review Board to consider that the 30 day notice period commences for the purposes of section 43(3) of the Classification Act on the date that the classification determination is published on the OFLC public website. In the case of IRREVERSIBLE, this was by 27 November 2003.
In considering applications for review of decisions by the Classification Board, the Review Board must give due consideration to the interests of all parties including those of the original applicant, the public and others who have been in similar circumstances to the applicant.
The Review Board considers that it would be unreasonable for the notice period to commence at some later undetermined time, when applicants – particularly those other-than-original applicants – receive written confirmation from the OFLC regarding classification decisions. On this basis, the notice period could commence at any time and original applicants for film classification would have no certainty regarding classification decisions.
In its written submission the AFA noted that as part of its activities, it “hasmonitored and analysed developments in the media and entertainment industry, including developments in the classification of films.” (para 1.2). The Review Board considers that those interested in film classification – such as the AFA – should take reasonable steps to keep themselves informed regarding decisions of interest to them.
Information regarding the nature of the film IRREVERSIBLE was available in the media approximately a year prior to the applicant contacting the OFLC and was available on the OFLC public website from 27 November 2004, some 2½ months earlier than the AFA’s contact with the OFLC.
Members of the AFA could have seen the film in March/April 2003 in several states. In its submission of 9 March 2004, the AFA states that it had been unable to view the film, although it was screening in Sydney and Melbourne, albeit in limited numbers of cinemas, from 7 February 2004 in Sydney and 12 February 2004 in Melbourne.
Even if it is accepted that the 30 day notice period commenced on 3 February 2004, the decision of the Review Board on the out-of-time issue would not change. The AFA could have lodged an application for review at the same time that it was writing to the Attorney General in February 2004. Although not taken into consideration, the Review Board was aware that this was the action followed by the AFA in regard to the film Baise Moi in 2002 – it pursued both actions simultaneously. When the then Attorney General applied to the Review Board for a review of the decision regarding Baise Moi, the AFA withdrew its application.
Should the Review Board allow a longer period for the AFA to make its application using its power under section 43(3)(b)?
In Hunter Valley it was held that a number of factors were relevant in determining whether to grant an extension of time for making an application to apply for judicial review under section 11 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). Section 11 confers a discretion on the Federal Court to extend time for the making of an application in a similar manner to the discretion conferred under section 43 of the Classification Act on the Board.
The principles distilled by Wilcox J and modified by the Full Court of the Federal Court in the in the matter of Comcare v A’Hearn (1993) 45 FCR 441 have been applied by many Courts and Tribunals. They were summarised in the matter of November 2001):
1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The ‘prescribed period’ of 28 days is not to be ignored ( Commission
2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential precondition (Comcare v A’Hearn (1993) 45 FCR 441 and
3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See
4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287)
5. The mere absence of prejudice is not enough to justify the grant of an extension. (Lucic at p 416)
6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417)
7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the [decision making body’s] discretion (Wedesweiller v Cole
The Review Board was assisted by consideration of these principles in determining this matter. In considering these principles the Review Board found :
– the explanation by the AFA for the delay to be inadequate,
– the action taken by the AFA apart from lodging the application, to have
been reasonably sufficient but needed to have commenced earlier than February 2004
– that on preliminary assessment of the merits of the application, based on a viewing of the film and the written submissions provided by the applicant and the original applicant, the application for review was unlikely to succeed and there was virtually no prospect of the classification changing;
– that the Review Board had been very consistent in applying the 30-day rule in the past to a range of applicants (with either more or less resources than the AFA), including those with less experience in classification matters than the AFA. It was not in the interests of fairness between applicants in like positions to hear this out-of-time application while not hearing others; and
– there was a need for time limits to apply to the making of applications to review classification decisions to enable greater certainty and finality of classification decisions;
– that while there might arguably be some public interest in ensuring a strict application of the Guidelines, as submitted by the applicant, this was not sufficiently significant to grant an out of time application, particularly when coupled with the Review Board’s assessment of the merits of the application.
Having regard to these matters the Review Board decided that it should not exercise its power under section 43(3)(b) to allow the making of the application for review outside the 30 days stipulated in section 43(3)(a) of the Classification Act.
As noted above, the Review Board did not proceed to review the classification decision in IRREVERSIBLE or deal with the remaining preliminary issue of the AFA’s standing as either a ‘person aggrieved’ or as a person or organisation ‘deemed to be a person aggrieved’ under section 42 of the Classification Act.
A submission was received from the Dr Derek Wilding of the Communication Law Centre and circulated to the applicant, the original applicant and members of the Review Board. However, as it related to the substantive application it was not referred to, nor taken into account, during the Review Board’s deliberations.
The AFA was advised that it could make an application under the ADJR Act in relation to the determination of the Review Board.
Due to the delay, without adequate reason, in the lodgement of the application for review, the Review Board determined not to exercise its discretion to allow an extension of the period for lodgement of the application.– Classification Review Board report
The distributor responds
Understandably, Accent was pleased with the result.
March 30, 2004
Today the Office of Film and Literature Classification, Classification Review Board heard the Application of the Australian Family Association (AFA) who were seeking a review of the R Classification of IRREVERSIBLE.
The AFA had sought:
– a waiver of the review application fee,
– an extension of the 30 day notice period required to make an application for review,
– a determination on whether the AFA had standing as a person aggrieved to bring the application,
– and a review of the R Classification.
The Classification Review Board advised:
– that the application fee had been waived,
– there were no grounds submitted by the AFA for the Review Board to grant an extension.
In making its decision, the Review Board had regard to the merits of the AFA’s application and having viewed the film decided there was virtually no prospect of the Review Board changing the R Classification.
Dean O’Flaherty of Accent Film Entertainment, the distributor said, “We are delighted with the decision, especially the vindicating remarks of the Review Board in respect to the R Classification. This is a great decision for freedom of artistic expression and the right of adult Australian film-goers to see internationally acclaimed films like IRREVERSIBLE without having to leave the country”
“We could never have got this outcome without our lawyer Raena. Raena Lea-Shannon, at Michael Frankel and Company, leading Entertainment Law Firm took on our case as pro-bono. She is on the Committee of Watch On Censorship and is committed to the protection of freedom of expression”.– Accent Film Entertainment
Ban them all
Despite the setback, Fred Nile continued complaining about the film Here he is telling Michael Egan (Labor) that Catherine Hardwicke’s THIRTEEN (2003) was XXX-rated.
March 17, 2004
Reverend the Hon. FRED NILE: My question without notice is addressed to the Treasurer, representing the Premier. With further cases of alleged mistreatment, abuse and group rape of women by football players and other gangs coming to light in New South Wales and Victoria, does the Premier recognise that this issue may be a much broader problem among young men within our society than previously recognised?
Is the Premier familiar with Professor Albert Bandura’s widely accepted theory of social cognition and reciprocal determinism?
Has the Premier recognised the link between the conditioning stimuli of pornography, obscene productions such as XXX, television, films and videos such as THIRTEEN, IRREVERSIBLE, BAISE-MOI, et cetera, and the unacceptable attitudes and behaviour of a percentage of young men in this State who treat young women as sex objects?
Will the Premier take action to ensure that young and impressionable males are protected from perverting material?
Will the Premier have introduced relevant educational material in high schools?
Will the Premier raise these issues at the next Council of Australian Governments meeting?
The Hon. MICHAEL EGAN: That was a serious question and deserves a serious response. I will refer it to the Premier for just such a response.– Offensive Publications and Abuse of Women
– Fred Nile (Christian Democrat), NSW Legislative Council
Atkinson & Harradine joins the fight
Following the Classification Review Board decision, it appeared that IRREVERSIBLE was secure. However, there were warnings in May when it was revealed that Michael Atkinson, the South Australian Labor Attorney-General, was pushing for a review.
May 13 2004
Senator HARRADINE (Tasmania) – I have a question in relation to the last matter of the board being the authority and everything being transparent. As I understand it, a request is made to the federal Attorney-General by a state Attorney-General about the classification of a film. What is the role of the federal Attorney-General? For example, I understand that the South Australian Attorney-General has, in respect of the film IRREVERSIBLE, made a request to the federal Attorney-General. Could the parliamentary secretary advise the committee as to what stage that has reached and what is happening to that request?
Senator TROETH (Victoria—Parliamentary Secretary to the Minister for Agriculture, Fisheries and Forestry) (1.18 p.m.)
Yes, you are quite right, Senator Harradine, the Attorney-General from South Australia did write to the federal Attorney-General. The statement on this matter and the classification of the review board was that they would not have made a different decision. The Attorney-General at the Australian government level has written back to the South Australian Attorney-General asking him whether he wishes to proceed further with the matter, and as yet we have not received a response.
Senator HARRADINE (Tasmania) (1.18 p.m.)
What is the attitude of the Commonwealth Attorney-General with respect to this matter? Here is a matter that has been raised by a number of people concerned with not only the fact that this has occurred but the precedent that it sets. We have all been concerned about sexual violence, for example. How can it be explained away that the guidelines in 1996 stated `Sexual violence may only be implied and should not be detailed’ whereas the new guidelines state that `sexual violence may be implied, if justified by the context’. That is a significant change, which has allowed for rather lengthy depictions of sexual violence in the film IRREVERSIBLE. Surely the Attorney-General must have a view of the matter. I do not know whether this change occurred under the previous Attorney-General or the current one—presumably it was the previous Attorney-General. What is the current Attorney-General’s view of the matter?
Senator TROETH (Victoria—Parliamentary Secretary to the Minister for Agriculture, Fisheries and Forestry) (1.20 p.m.)
As I indicated to Senator Harradine, we are at present awaiting a response from the South Australian Attorney-General. If the Attorney-General in South Australia wishes to have a review, the review will proceed. The Attorney has considered his own power to have a review. At this stage he does not intend to have a review of his own volition; he will await the response from the South Australian Attorney-General.– Brian Harradine (Independent) & Judith Troeth (Liberal)
– Senate, Parliament of Australia
Nine days later, Brian Harradine was back in action. This time he had questions for the Director of the Office of Film and Literature Classification.
May 24, 2004
Senator HARRADINE —This document is titled Guidelines for the Classification of Films and Computer Games. You have appealed to us to recognise that these are mere guidelines, and in this particular case of IRREVERSIBLE you have gone outside the guidelines.
Mr Clark —That is not the case. I would suggest that the board’s decision is consistent with the guidelines.
Senator HARRADINE —Why? You have clearly gone out of the guidelines when it comes to explicit sex in a violent film.
Mr Clark —There is one brief moment of explicit sexual content in the film which is not inconsistent with decisions made with both the old guidelines and the new guidelines.
Senator HARRADINE —That is an assertion made by you which will be tested, will it not, under the review?
Mr Clark —It will, Senator. Yes, I am asserting that, but that is what is contained within the board report in relation to this film. As you are aware, the review board has also considered this film and said that, if they were to review it, they would be unlikely to change that decision. So they also have applied the guidelines. As I understand it, there is to be a review by the Classification Review Board of this film anyway, so that will be a further test.
CHAIR —Which will either affirm or change the previous decision?
Mr Clark —Yes, that is correct.
Senator HARRADINE —Which will what?
Mr Clark —Either affirm or change the board’s decision.
Senator HARRADINE —What will change the board’s decision?
Mr Clark —The Classification Review Board will be conducting a review of the film at some point in the near future, and that will be a further test of the film in terms of the use of the guidelines.
Senator HARRADINE —And that was brought about by what action?
Mr Clark —The South Australian Attorney-General initially requested a review. The Attorney advised him that the matter had been looked at by the Classification Review Board and asked if he still wished to proceed. Attorney-General Atkinson has indicated that he wishes to proceed, and the process for a review of the film has begun.
Senator HARRADINE —By the same people who rejected—
Mr Clark —I am sorry, I cannot comment on the composition of the Classification Review Board or its procedure.
Senator HARRADINE —Why?
Mr Clark —I am the Director of the OFLC and chairman of the classification board, and we keep a good strong distance between the two boards.
Senator HARRADINE —That is admirable, but who can give me advice as to who will do this review? You mentioned that there is a review taking place. I am just asking the question: by whom?
Mr Clark —The convener of the Classification Review Board will be consulting with members of the Classification Review Board as to the procedure and who the members of the review board would be for this review, so I cannot answer that because that is something that they would be negotiating at the moment.
Senator HARRADINE —When will that be known?
Mr Clark —I should imagine this week, but as early as possible in the week is what I imagine they will be aiming for.
Senator HARRADINE —The decision regarding impact is a subjective decision, is it not?
Mr Clark —The guidelines are strictly that: they are guidelines. Therefore the board, in making its decisions, tries to be as objective as possible in using the instruments it has been given but, at the end of the day, yes, they have to make an on-balance decision. If that is subjective, that is what it is; but they are not making wayward decisions in relation to their statutory obligation.– Brian Harradine (Independent)
– Des Clark, Director, OFLC
– Senate Estimates, Parliament of Australia
On the day of Harradine’s speech, Philip Ruddock applied to have the classification reviewed. This was done at the request of Michael Atkinson.
Back to the Review Board
Two days after the questioning of Des Clark, it was publicly announced that Michael Atkinson had prevailed and the rating would once again be examined.
May 26, 2004
An application for review of the Classification Board’s decision to classify the film IRREVERSIBLE, R18+ with the consumer advice “Strong sexual violence, graphic violence, sexual activity” has been received from the Attorney-General, on the request of the Attorney-General of South Australia.
Under the Commonwealth Classification (Publications, Films and Computer Games) Act 1995, the Attorney-General is required to apply for a review of a classification decision, if so requested in writing by a Minister of a State or Territory who is responsible for censorship matters.
The Attorney-General may make an application for review at any time. However, an application for review of a classification decision by any other party must be made within 30 days after the applicant received notice of the decision.
The Classification Review Board exercised its discretion not to hear a previous application for review of the classification of IRREVERSIBLE, made by the Australian Family Association, because it was out of time.
The Classification Review Boards decision and reasons for its decision for this review of IRREVERSIBLE will appear on the Office of Film and Literature Classification’s website when finalised.– Review of the film Irreversible announced
– Classification Review Board
The distributor responded to the news with the following.
May 26, 2004
Watch On Censorship is informed that the Commonwealth Attorney General Phillip Ruddock has bowed to a request from the South Australian Attorney General to apply for Review of the Classification of the film IRREVERSIBLE. This is despite the fact that Phillip Ruddock declined a request by the Australian Family Association to make an application for a review of IRREVERSIBLE months ago, as he was of the view that the Guidelines had been properly applied by the Classification Board.
The AFA brought its own application out of time, despite the fact that there was public notice of Classification of the Film on the OFLC web site since 27 November 2003. The Review Board held in that case, “…those interested in film classification…should take reasonable steps to keep themselves informed regarding decisions of interest to them”. The Review Board also said, “There was a need for time limits to apply to the making of applications to review classification decisions to enable greater certainty and finality of classification decisions”, and the Review Board found that there was “virtually no prospect of the classification changing”.
It seems that under Classification Laws in this country one can simply tug on the sleeve of every Attorney General until they find a sympathetic ear or political motive. This flies directly in the face of the intention of the Classification Code that was put in place to both streamline and simplify the classification procedure and thereby remove any degree of “Commercial Uncertainty” in the industry.
This late application by the South Australian Attorney General is scandalous. If Attorney Generals have carte blanche to make applications this late, it delivers a chilling impact on freedom of expression in this Country. There must now clearly be a limit imposed on the time within which an Attorney General can be allowed to seek a Review otherwise the entire industry will be placed in disarray.
Commercial distributors must now be seriously concerned. It seems now that at any time after the lapsing of the initial 30 day appeal period following classification approval, and throughout a film’s marketing and release schedules an Attorney General can selectively intervene and seek to have a review of an M, or revise an MA to R, let alone an R to RC. This has a severe impact on the credibility of Australian businesses operating in global markets and could cost local industries millions of dollars in cancellations and even small-to-medium business bankruptcies. Just as importantly, it fosters serious conservatism in selection of films and readiness out of dire necessity of distributors, to heavily cut their films to meet desired ratings.
Amendments were made after LOLITA to allow a wider test for aggrieved persons so that community groups with relevant objects related to the subject matter of a film could apply for a review without having to rely on the Attorney General’s power. To bring this application on IRREVERSIBLE now, especially given the indication from the Review Board that there was “virtually no prospect of the classification changing” is no more than a blatant abuse of power.
IRREVERSIBLE was classified R on 19 November 2003. This was posted on the OFLC web site from 27 November 2003. The film was screened first on 7 February 2003. It has had Theatrical seasons in Melbourne, Sydney, Brisbane, Canberra and Perth and is already heavily in commercial and marketing preparation for DVD release in July. IRREVERSIBLE was also screened at the 2003 French Film Festival in Adelaide April 2003.– SA tries to ban Irreversible
– Michael Frankel & Co on behalf of Accent Film Entertainment
Review date & members
It would take another month for the date of the meeting to be decided.
June 24, 2004
The Classification Review Board will convene on Wednesday 30 June 2004 to consider the classification of the French film IRREVERSIBLE, directed by Gaspar Noe.
The review of the Classification Board’s decision of R with the consumer advice “Strong sexual violence, Graphic violence, Sexual activity” is in response to an application from the Attorney-General, on the request of the Attorney-General of South Australia.
The Classification Review Board will be constituted by Convenor, Ms Maureen Shelley, Deputy Convenor, The Hon Trevor Griffin, with members Ms Jan Taylor, Ms Dawn Grassick, Ms Kathryn Smith and Mr Rob Shilkin.
The Classification Review Board’s decision and reasons for its decision for this review of IRREVERSIBLE will appear on the Office of Film and Literature Classification’s website when finalised.
The Classification Review Board is an independent merits review body that meets in camera to make a fresh decision on classification matters previously determined by the Classification Board.– Date set for review of the film Irreversible
– Classification review Board
At their meeting, the Classification Review Board found that the R-rating should remain. The only change was to the consumer advice that went from ‘Strong sexual violence, Graphic Violence, Sexual activity’ to ‘High level sexual violence, Graphic violence, Sexual activity’.
June 30, 2004
A six-member panel of the Classification Review Board met today and a majority determined that the French film IRREVERSIBLE, directed by Gaspar Noe, should be classified R18+.
The Classification Review Board supported the R18+ classification with the consumer advice, “High-level sexual violence, Graphic violence, Sexual activity.”
R18+ is a restricted classification. It means the film is legally restricted to adults aged 18 years and over. Some material classified R18+ may be offensive to sections of the adult community.
The application to review the R18+ classification of IRREVERSIBLE, decided by the Classification Board on 26 November 2003, was made on behalf of the Attorney-General of South Australia.
The Review Board received written and heard oral submissions from the original applicant, Accent Films. Correspondence from the South Australian Attorney-General was submitted by the Australian Attorney-General for consideration by the Review Board. The Review Board also received written and heard oral submissions from the Australian Family Association and the Communications Law Centre.
Convenor Maureen Shelley said, “Although the cumulative impact of this film is strong and disturbing, the Classification Review Board does not consider that the content of exceeds the guidelines for the R18+ classification”.
In reviewing the classification, the Classification Review Board worked within the framework of the National Classification Scheme, applying the provisions of the
The Classification Review Board is an independent merits review body that meets in camera to make a fresh classification decision when applications to review classification matters previously determined by the Classification Board are made. Reasons for this decision will appear on the OFLC website when finalised.
Who made application for today’s review of IRREVERSIBLE?
The review conducted today by a six member Classification Review Board was convened in response to an application for review of IRREVERSIBLE made by the Australian Attorney-General, the Hon Philip Ruddock, on behalf of the Attorney-General of South Australia, the Hon Michael Atkinson.
Why did the Australian Attorney-General make the application?
At law, the Australian Attorney-General is compelled to make an application for review if a Minister responsible for Censorship requests in writing that he does so.
Who sat on the Classification Review Board for today’s review of IRREVERSIBLE?
Today the Classification Review Board was constituted by Convenor, Ms Maureen Shelley, Deputy Convenor, The Hon Trevor Griffin, with members Ms Jan Taylor, Ms Dawn Grassick, Ms Kathryn Smith and Mr Rob Shilkin.
Was there a previous application made for review of IRREVERSIBLE?
The Australian Family Association made an application for a review of IRREVERSIBLE in March of this year.
What was the outcome of the application made by the Australian Family Association?
Under the Classification (Publications, Films and Computer Games) Act 1995 an application for review must be made within 30 days after the applicant (who originally applied to have the film classified) received notice of the decision, or “within such longer period as the Review Board allows”. In the case of the application made by the Australian Family Association for review of IRREVERSIBLE in March of this year, the Classification Review Board exercised its discretion not to hear the application on the basis that that statutory period of 30 days had elapsed.
Was the standing of the Australian Family Association as “a person aggrieved” considered?
No. Once the “out of time” decision was made, no other matters were required to be considered at that time.
Does today’s Classification Review Board decision apply throughout Australia?
Yes, the decision has immediate effect in all States and Territories.– Review confirms R classification for Irreversible
– Classification Review Board
Trevor Griffin background
A minority of the six-member Board found that it should still be Refused Classification. The involvement of Trevor Griffin, now Deputy Convenor, may point to the identity of the dissenting vote.
Griffin had previous censorship form during his time as a South Australian Liberal. In 1980, as Attorney-General, he successfully had SWEET SWEETBACK’S BAADASSSSS SONG (1971) removed from Adelaide Festival. The following year he banned THE EXTERMINATOR (1980) because it ‘transgressed acceptable standards’.
He would go on to be Deputy Convenor of the Classification Review Board that upheld the refusal of THE GORE GORE GIRLS (1972) and changed the rating of 9 SONGS (2004) from X18+ to R18+. In the latter case, an unnamed minority of the five-member panel called for a Refused Classification.
Damien Tudehope background
The Australian Family Association’s was represented by Damien Tudehope at these Classification Review Board meetings.
2004 – ANATOMY OF HELL (2004)
2004 – IRREVERSIBLE (2002)
2005 – MYSTERIOUS SKIN (2004)
2005 – 9 SONGS (2004)
2007 – THE PEACEFUL PILL HANDBOOK (2006)
2008 – BONDAGE MANSION (2001)
2008 – CLASSES IN SEDUCTION (2004)
2008 – HOLY VIRGINS (2001)
2008 – T&A TEACHER (2004)
2011 – THE HUMAN CENTIPEDE II (FULL SEQUENCE) (2011)
In 2014, he was elected as an NSW Liberal to the Sydney seat of Epping.
Why the R-rating was upheld
June 30, 2004
23-33 Mary Street Surry Hills, NSW
Ms Maureen Shelley (Convenor)
The Hon Trevor Griffin (Deputy Convenor)
Ms Dawn Grassick
Ms Jan Taylor
Mr Robert Shilkin
Ms Kathryn Smith
The Hon Phillip Ruddock, Commonwealth Attorney-General– not represented.
Accent Film Entertainment Pty Ltd (Original Applicant) represented by Mr Peter Campbell (Principal Director)
Ms Raena Lea-Shannon (Solicitor, Michael Frankel & Co Solicitors)
Mr Douglas Stewart (Classifier, SBS, Expert Witness)
Australian Family Association (AFA) represented by Mr Damien Tudehope (Solicitor, O’Hara & Company)
Communications Law Centre represented by Dr Derek Wilding, Director, University of New South Wales
To review the Classification Board’s (the Board) decision to classify the 35mm format film IRREVERSIBLE R18+ with the consumer advice ‘Strong sexual violence, graphic violence, sexual activity’.
DECISION AND REASONS FOR DECISION
The majority of the Classification Review Board (the Review Board) determined that the film IRREVERSIBLE was classified R18+ with the consumer advice ‘High-level sexual violence, graphic violence, sexual activity’.
2. Legislative provisions
Relevantly, the Code in paragraph 3 of the Table under the heading ‘Films’ provides that films (except RC films and X films) that are unsuitable for a minor to see are to be classified ‘R’. The Code also states various principles for classifications, and that effect should be given, as far as possible, to these principles including that “adults should be able to read, hear and see what they want” and “the need to take account of community concerns about depictions that condone or incite violence, particularly sexual violence and the portrayal of a persons in a demeaning manner”.
Section 11 of the Classification Act requires that the matters to be taken into account in making a decision on the classification of a film include the:
(a) standards of morality, decency and propriety generally accepted by reasonable adults; and
(b) literary, artistic or educational merit (if any) of the film; and
(c) general character of the film, including whether it is of a medical, legal or scientific character; and
(d) persons or class of persons to or amongst whom it is published or is intended or likely to be published.
Three essential principles underlie the use of the Guidelines, determined under section 12 of the Classification Act:
– The importance of context;
– Assessing impact; and
– Six classifiable elements – themes, violence, sex, language, drug use and nudity.
3. Background and Procedure
On 30 March 2004, the Review Board exercised its discretion not to hear an application for review of the film IRREVERSIBLE submitted by the Australian Family Association as it was made out of time. Subsequently in May 2004, the Commonwealth Attorney-General lodged an application for review of IRREVERSIBLE at the request of the South Australian Attorney-General, pursuant to section 42 of the Classification Act.
The Review Board convened in response to the application from the Attorney- General. The Review Board watched the film IRREVERSIBLE, and received written submissions and heard oral submissions from Accent Film Entertainment Pty Ltd’s representatives (Original Applicant) represented by Mr Peter Campbell (Principal Director); Ms Raena Lea-Shannon (Solicitor, Michael Frankel & Co Solicitors), Mr Douglas Stewart (Classifier);
Written and oral submissions were also received from the Australian Family Association (AFA) represented by Mr Damien Tudehope (Solicitor) and the Communications Law Centre represented by Dr Derek Wilding, Director, University of New South Wales, as interested parties.
Mr Tudehope submitted that any of the members of the Review Board who had been present at the 30 March meeting should absent themselves from the meeting to avoid the appearance of apprehended bias. The Convenor invited submissions on the matter from Accent Films and the Communications Law Centre. Accent Films and the Communications Law Centre submitted that they did not perceive such bias and that the removal of the members of the original panel was unnecessary.
Ms Shelley advised that the composition of Review Board panels was a matter for the Convenor and that it was her determination that the panel as constituted would consider that matter before it without bias. Ms Shelley determined that the review would proceed with the panel as constituted. Mr Shilkin and Ms Smith advised that they would give no consideration to the previous review.
Mr Tudehope accepted the Convenor’s decision stating that he believed the panel would hear the matter without bias. The substantive review proceeded.
4. Evidence and other material taken into account
In making its determination the Review Board had regard to the following:
(i) the application from the Attorney-General and the material submitted by him from the South Australian Attorney–General;
(ii) the written and oral submissions on behalf of Accent Film Entertainment;
(iii) the Australian Family Association’s submission (including written and oral submissions);
(iv) the Communications Law Centre’s submission (including written and oral submissions);
(v) the relevant provisions in the Classification Act;
(vi) the relevant provisions in the Code, as amended in accordance with section 6 of the Classification Act; and
(vii) the Guidelines.
The Classification Board stated in its report regarding IRREVERSIBLE:
“In a Paris sex club, Marcus and Pierre are on a frenzied night time search for a man. Overcome by rage and despair, they are involved in a brutal act of violence. The reason is revealed as the story plays out in reverse. Marcus’ girlfriend Alex is brutally raped and bashed after a party. The complex relationship between Marcus, Pierre and Alex also unfolds and the film ends with Marcus and Alex as yet untouched by the horror that awaits them
The Review Board accepted this view of the product.
6. Findings on material questions of fact
The Review Board found that IRREVERSIBLE contains aspects or scenes particularly worthy of mention under various classifiable elements
(a) themes – there are strong themes in the film including a discussion of incest with passing reference to family breakdown at approximately 5 minutes; a racist assault on a taxi driver involving violence and racism at approximately 28 minutes; discussion of revenge for Alex’s rape with two “thugs” – a matter of crime at 39 minutes; discussion of sexuality including the use of sex workers and issues of sexual orientation, impotence or abstinence from approximately 57 minutes to 59 minutes 46 seconds. The verbal treatment of these matters requires a mature perspective.
(b) violence – At approximately 20 minutes Marcus threatens a man with a glass bottle saying he will bash the bottle in the man’s face – he repeatedly hits the man;
at approximately 22 minutes a scene of high-level violence is shown where Marcus bashes Tenia’s companion with a fire extinguisher repeatedly – the man’s face caves in and the sound of bones crunching can be heard;
at approximately 28 minutes Marcus hits the taxi driver, pulls him out of the car and steals his taxi;
at approximately 36 minutes is a strong scene where Marcus threatens Concha a transgender sex worker – he threatens to “bash the tranny whore”;
at approximately 41 minutes Alex is taken away on a stretcher – her face is bloodied and swollen, she appears to be in a coma;
at approximately 44 minutes Tenia hits Concha; the high-impact scene involving the implied anal rape of Alex commences at approximately 46 minutes and continues until approximately 53 minutes – in addition to the implied anal rape Tenia threatens Alex with a knife, pulls her hair, explicitly hits her and explicitly and implicitly kicks her. The implied anal rape – while a high-impact scene – is restrained in its portrayal of a deeply offensive act. The man is fully clothed throughout; Alex is clothed for the most part and only partially naked at the end of the scene after her dress is torn; Tenia’s penis is not shown throughout the rape – although there is a fleeting depiction of his tumescent penis when he rolls off Alex; the rape of Alex is implied only – no penetration is shown. The impact of the scene is established by the elapsed time of the scene and the assaultative language used by Tenia to Alex and from her depiction of distress and terror. From approximately 55 minutes to approximately 56 minutes 28 seconds Tenia implicitly hits and kicks Alex. Saying she is now “dead meat” he spits on her and walks away. The sexual violence of the anal rape scene is implied violence and is justified by the context. The violence, while high in impact, is justified by the context.
(c) sex – at approximately 14 minutes two men are implicitly shown having sex, there is groaning;
at approximately 15 minutes an erect penis is shown and a person is masturbating (actual sex) – the image is fleeting;
at approximately 17 minutes two men are implicitly having sex, there are groans;
at approximately 18 minutes two men are implicitly having sex, there are sounds of beating and groans;
at approximately 19 minutes there is a projected image on a screen of two men having what appears to be actual fellatio;
at approximately 19 minutes 40 seconds a man is shown in a S&M cradle asking passers by to “fist me”;
at approximately 20 minutes, whilst Marcus is threatening a patron, a man is explicitly masturbating his penis in the background (actual sex) – the image is fleeting;
from approximately 46 minutes to 53 minutes is the implied anal rape of Alex. The scenes of actual sex are fleeting and the impact diminished by the low light during the scenes. Throughout the film are verbal references to homosexual and heterosexual sex (“suck me”, “suck my big cock”, “we make each other come”, “I fucked like a rabbit”) – cumulatively these references add to the high impact of the film.
(d) language – there is extensive use of coarse language and sexually assaultative language throughout the film. It commences with a discussion between two men about the sex one man had with his daughter at approximately 5 minutes (“I slept with my daughter, she was so cute” his friend responds “We fuck up”); continues when the scene at the sex club, The Rectum, is shown – dialogue starts “Blood flowed out of that shithole”, “You’re gonna get your ass fucked in prison”, includes repeated use of the words fuck, ass, faggot, phrases like “fucked to death”, “fucking faggot” and “felching fuck club” and racist epithets such as “dirty chink fuck”, “your slant-eyed friends, asshole”, “you chink fuck” and “you filthy yellow fuck”.
During the anal rape scene Tenia uses sexually assaultative language to Alex from “spread your legs bitch”, “don’t move cunt”, “you shit on me you’re dead you fucking high-class swine” to his commentary that includes “you bleeding, you open up your ass real good, so fucking good” to demands for her to “call me daddy, call me daddy, fucking cunt”. He refers to her as a “sweet hole”, a “little fucking whore”, a “piece of shit dead meat”, a “fucking sow” and a “fucking dog” – the language used by Tenia to Alex throughout the rape scene increases its impact to high.
Under the Guidelines there are virtually no restrictions on language at the R classification.
(e) drug use – there are some scenes of implied drug use in the film and they are justified by the context.
At approximately 20 minutes, Tenia’s friend is smoking and appears drugged; during the anal rape scene Tenia sniffs something from a bottle (approximately 50 minutes and 53 minutes);
at approximately 58 minutes Marcus takes some substance in a bathroom with a number of women – possibly cocaine;
at approximately 67 minutes Alex asks Marcus “what are you on? Don’t touch me”;
at approximately 75 minutes when Marcus and Pierre are talking one passes the other “a pill I’ve saved and never used”.
The scenes are justified by the context.
(f) nudity – at approximately 33 minutes Concha lifts her dress to show her penis;
at approximately 55 minutes part of Alex’s breast is shown during the anal rape scene;
at the end of the film a post-sex scene is shown of Alex and Marcus – at approximately 82 minutes and 83 minutes Marcus’ flaccid penis is seen as he rolls out of bed and walks across the room;
at approximately 88 minutes Alex’s breasts are shown and a glimpse of Marcus’ penis is depicted.
The nudity is justified by the context.
The Board found that while the overall impact of the material was high, there was not sufficient strength in the behaviour of the protagonists to cause a higher level of impact for any individual scene or cumulatively. Scenes were dealt with in a realistic yet restrained manner that was neither gratuitous nor exploitative. Each scene was justified by the context in which it was presented and the overall theme of the film. The film techniques used by the film-maker – of low lighting, mid to long range shots (rather than close ups), and fleeting glimpses of action (such as in the sex club) rather than slow motion, meant that elements that may have had a very high impact were reduced in impact to high or strong.
7. Reasons for the decision
The Review Board based its decision to classify the film IRREVERSIBLE R18+ with the consumer advice ‘High-level sex scenes, graphic violence, sexual activity’ on the content of the film as set out in 6 above.
The Review Board accepts Accent Film Entertainment’s submission that the film is a serious film of some artistic merit. The Review Board notes the filmmaker uses confronting sound and camera techniques to challenge the viewer from the outset.
It is also noted that the director uses allegory to unravel the tale of what happens to two men when they descend into “the bowels of the Earth” and visit a sex club called The Rectum pursuing an act of revenge. The film appears to take a moral stance. It shows scenes of light, beauty and soft music when Alex and Marcus are engaged in heterosexual lovemaking and contemplating Alex’s possible pregnancy. It depicts scenes of darkness, dirt and violence when Marcus and Pierre pursue Tenia through the red-lit, winding passages of The Rectum with each scene unfolding yet another room of anonymous homosexual and/or sado-masochistic sex accompanied by grunts, groans and gyrating music. Regardless of its artistic intent or merit, by its nature the film contains material that may be offensive to sections of the adult community. Such material can be accommodated by the R18+ classification.
The film contains fleeting depictions of actual sex as detailed in 6 above. The Review Board determined that while the general rule under the Guidelines, is “simulation yes – the real thing no” that these scenes were so brief and so incidental that the general rule should not apply in this instance. The Review Board believed that the various potentially controversial scenes were depicted in context and were neither gratuitous nor glamorised.
The Board found that the treatment of violence, including sexual violence was justified by context, as were the actual sex scenes. Further, the Board found that the impact of the material was high, but not so high as to warrant a Refused Classification rating. However, the Board found that to allow unrestricted viewing to persons under 18 years would fail to protect minors who would likely to be harmed or disturbed by the film.
While the classifiable elements and the impact in the overall context of the film IRREVERSIBLE do not justify an RC classification, they do make the film unsuitable for persons less than 18 years of age and warrant specific consumer advice relating to the sexual violence, graphic violence and actual sex contained in the film.
The minority was of the view that the impact of the rape scene, in particular, was very high and that, generally, all the classifiable elements in the scenes referred to above cumulatively made the film one of very high impact. As a result, the minority was of the view that the film IRREVERSIBLE should be Refused Classification.– Classification Review Board report
Third challenge withdrawn
On 23 July, Accent informed us that moves were underway for a third appeal. This time the challenge was going to be against the DVD release of the film.
However, on August 5, they received an e-mail from the OFLC informing them that the Australian Family Association had withdrawn their application.
It was later revealed that the refusal of a fee-waiver was behind their change of mind.
October 17, 2005
During the course of the year, the Classification Review Board received a number of applications that were later withdrawn. A determination is not made on withdrawn applications, yet a considerable amount of time is spent by the Convenor and the secretariat on these applications.
Applications to the Classification Review Board withdrawn– Classification Review Board
Review applicant: Australian Family Association
Reason for withdrawal: Fee Waiver Refused
– Annual Report, 2004 to 2005
On 2 August 2004, Accent issued IRREVERSIBLE on DVD.
It was promoted as ‘The film they tried to ban’.
They later released it on a double-bill DVD with Noé’s earlier work, I STAND ALONE (1998).
Classification Review Board overview
Here is Maureen Shelly looking back on a long and complex case.
September 16, 2004
The film IRREVERSIBLE, which contains some fleeting scenes of actual sex, was the subject of media coverage in March and June. The Australian Family Association (AFA], a community-based organisation, applied for a review of the film in March – their application was ruled to have been lodged “out of time”. Applications for review need to be lodged within 30 days of the applicant having received notification of the classification.
The South Australian Attorney-General then requested that the Australian Attorney- General apply for a review of the decision. When so requested, the Australian Attorney-General is required to do so under the Classification Act. The 30-day rule does not apply to applications by the Australian Attorney-General. This application was heard on 30 June and the AFA sought leave to appear as an interested party.
The AFA submitted that the second review panel should not have included any members of the original panel. This submission was rejected and the second panel included a majority of the members of the Review Board including the three original panel members.
In July 2004 [outside this reporting period) the AFA then lodged an application for review of the DVD release of IRREVERSIBLE, which contained extra material to the public exhibition version of the film. If this application had proceeded (it was withdrawn) only one member of the Review Board would have been available who had not participated in one of the two previous panels.
If Review Board members were unable to participate in panels in which they had considered preliminary material, then it could require temporary members to be appointed to consider matters.– Maureen Shelly, Convenor
– Classification Review Board
– Annual Report, 2003 to 2004
South Australia speaks
Michael has shared with us correspondence he had with Michael Atkinson.
July 27, 2004
With the utmost respect for yourself and your position I feel I must express my distress and disappointment with your recent position on censorship reviews, namely those of ANATOMY OF HELL and IRREVERSIBLE.
I believe most Australians are able to make their own minds up, with appropriate ratings guidance from the OFLC. For example, I saw IRREVERSIBLE and have no complaints, as I was aware due to its rating and warnings of the content within the film. Similarly I did not see ANATOMY OF HELL (as should be MY choice to see or not see a film), because from what I had read of the film it did not interest me. But let me stress I feel should any Australian decide they wish to see ANATOMY OF HELL, that ought be their choice.
As you are making these requests I’m sure that you have seen both of the films in question and that you would agree that in the case OF IRREVERSIBLE there is nothing within it that promotes or glorifies violence, sexual or otherwise, and I can not see how any individual could come of any other conclusion. The violence is no more glorified than it is in THE PASSION OF THE CHRIST, and neither of these films could be seen to promote it in any way.
I have no doubt that you have concerns for the Australian public should they choose to see these films. Please let me say as an individual whom has chosen to see one of them that censorship of this kind in any society sets a dangerous precedent and only serves to promote the film itself. Please voice your concerns as is your right, but I beg you do not stand in the way of intelligent Australians, as I’m sure you would agree we all are, right to make up their own mind.– To: Michael Atkinson, South Australian Attorney-General
– From: Michael
September 20, 2004
Thank you for your facsimile transmission of 27 July, 2004. You are concerned at any attempt to prevent consenting adults from seeing whatever films they wish, and, in particular, IRREVERSIBLE and ANATOMY OF HELL. You do not think I should have asked the Review Board to review them.
I am sure you know that the classification of publications, films and computer games in Australia is achieved by a national co-operative system embracing the Commonwealth and all States and Territories. Under the Commonwealth Classification (Publications Films and Computer Games) Act 1995, any participating Minister can require the Classification Review Board to review any film, by means of a request to the Commonwealth Attorney-General. This feature is an integral part of our national system. States and Territories agree to adopt the decisions of the Commonwealth classification bodies on the understanding that they can, if they wish, have particular decisions reviewed.
I see nothing wrong in my exercising the statutory authority given to all Ministers by the Commonwealth Act. I am a censorship Minister. That is, I am responsible to the people of South Australia for the operation of the censorship system in a way that, as far as possible, accords with public standards of morality, decency and propriety (to borrow a phrase from the Commonwealth Act), as embodied in the law and the guidelines. This may, from time to time, require me to request that the Review Board examine a contentious film. That is, after all, its job.
My request, or that of any other Minister, merely sets in train a process. It does not alter the classification of the film. That remains a matter for the relevant Commonwealth body, the Review Board. In each of the reviews, one member of the Review Board decided that the film should, if the guidelines were correctly applied, be refused classification.
It is true that the person who requests a review of the film need not have seen it. This is because that person is not called upon to classify the film. All that such a person needs to decide is whether the matter merits the attention of the Review Board. In considering whether it does, I read reviews of the film from around the world. I also take account of any material supplied to me by the person requesting a review. I may also look at the classification the film has received elsewhere. This material is usually sufficient for me to judge whether to ask the Review Board to see the film. In this case, I have not seen either of the films you mention. The OFLC classifies about 5,500 items every year and it is not a priority for me to watch dirty films, read dirty books and play violent computer games each day of my working life. If I had seen IRREVERSIBLE or ANATOMY OF HELL before asking for a review, your attack would have shifted 180 degrees to “He watches the same dirty films he won’t let us watch.”
You are evidently against the banning of any film at all. You are entitled to this view, but it does not accord with our present law. Our censorship laws require that some films, including those that depict extreme violence, be banned. I believe those laws, adopted as they have been around Australia, reflect the standards held by most Australians. Some think that such material should be banned because it desensitises us to violence and so is immoral. Others think it models violence that may be later acted out and thus is dangerous. Others simply do not want a society in which the public exhibition of such material is accepted, any more than they want the streets to be full of litter. Accordingly, laws fixing limits have been made through a democratic process. Until the democratic process changes them, it is my duty to see that they are upheld.
New South Wales participates in the national system. If you think this system should be changed, you may wish to take this up with the New South Wales Attorney-General, the Hon. Bob Debus M.P.– To: Michael
– From: Michael Atkinson, South Australian Attorney-General
Rating guidelines review
The 2003 modifications to the classification guidelines were followed twelve-months later by a review of the decisions. One of the titles examined was IRREVERSIBLE. However, no evidence was found that the changes had resulted in it being awarded an R18+.
A review of the first twelve months’ operation of the Guidelines for the Classification of Films and Computer Games 2003 (the 2003 Guidelines) was promised by the former Attorney General, the Hon Daryl Williams AM QC MP, to ensure that the decisions made under the 2003 Guidelines align with those made under the Guidelines for the Classification of Films and Videotapes – Amendment No. 3, 2000, and Guidelines for the Classification of Computer Games – Amendment No. 1, 1999 (the previous guidelines). The review of the 2003 Guidelines has been conducted and is the subject of this report.
The principal object of the review is to assess whether the combining and recasting of the previous guidelines into the 2003 Guidelines has had the effect of changing the level of content that falls into the various classification categories for film and games.
Summary of concerns of submissions
Concerns about the perceived changes in the R18+ classification dominated the submissions. The R18+ classified film, IRREVERSIBLE, was referred to in more than half the submissions as the sole example of a perceived change in standards. More permissible levels of sexual activity and sexual violence were perceived to have resulted from the change in guidelines.
There is no evidence to suggest the R18+ decision of the film IRREVERSIBLE was a result of the change in guidelines.
4 Complaints received by the OFLC
4.2 Complaints addressed to the OFLC.
Of the 139 complaints regarding public exhibition films in 2003-2004, 33 complaints made reference to the film IRREVERSIBLE. Four of these complaints took issue with the request for the review of the decision by the Australian Family Association (AFA), but most complained about the R18+ decision.
4.3.2 Ministerial Correspondence 1 July 2003-30 June 2004.
The OFLC processed 250 items of ministerial correspondence, including letters, emails and facsimiles referred to the Attorney-General in the financial year 2003- 2004. This was about 70% less ministerial correspondence than the previous year. Report on the Review of the Operations of the 2003 Classification Guidelines for Films and Computer Games 27 Main issues raised in the correspondence were:
– the Board R18+ classification of the film IRREVERSIBLE (82 items);
This chapter summarises and analyses the submissions to the review.
5.2 Coverage of the submissions
The arguments largely centred on the perceived change in permissible content in R18+ classified films. More than half the submissions (58%) cited the R18+ rated film, IRREVERSIBLE, as the sole proof for a shift in the standards under the 2003 Guidelines. The vast majority of these submissions appeared to have been precipitated by the description of IRREVERSIBLE circulated by email through organisational networks as part of a campaign against the guideline changes. The views expressed and issues raised in the email campaign (see section 5.8) were adopted by most submitters, who did not refer to viewing the film and generally used phrases like ‘I have been told’. The volume responding to the campaign can be viewed as a significant level of interest in the maintenance of standards.
5.3 Summary of submissions
Concerns about the changing standards in the R18+ classification dominated the submissions. The R18+ classified film, IRREVERSIBLE, was referred to in more than half the submissions as the sole example of a change in standards. According to submissions, more permissible levels of sexual activity and sexual violence were perceived to have resulted from the change in guidelines. This assertion was based on a film that some in the community believe should have been refused classification. In most submissions that used the film as evidence, it was clear that the submitter had not seen the film and that their concern was based on third party information about the film.
5.8 Content in the R18+ Classification
The bulk of the submissions focused on content permitted in the R18+ category for films. The film that received the greatest attention was the French film, IRREVERSIBLE. IRREVERSIBLE was classified R18+ by the Board on 19 November 2003 and this classification was confirmed by the Review Board on 30 June 2004. In making its decision, the Review Board took into account submissions by the Australian Family Association.
5.8.2 Levels of sexual violence
The level of sexual violence permissible under the R18+ classification was also perceived by submitters to have changed with the introduction of the 2003 Guidelines. A number of submissions focused on the rape scene in IRREVERSIBLE, central to the film’s narrative, as evidence of a shift in permissible sexual violence in R18+ classified films.
Concerns about the level of detail allowed
The submitters noted that the previous guidelines stated, ‘sexual violence may only be implied and should not be detailed’.
The submissions argued that the 2003 Guidelines had removed ‘should not be detailed’ from the statement and added ‘sexual violence may be implied, if justified by context’. It was argued by a number of submitters that the length of the rape scene in IRREVERSIBLE (nine minutes) was excessive and exceeded the standards in the previous guidelines. Some submissions argued that the portrayal of the rape was explicit and not implied as required under both sets of guidelines. It was noted by some submitters that the 2003 Guidelines provide no definition of ‘implied’. 14 On 10 May 2002, the film BAISE- MOI was refused classification for actual sex in a sexual violence context.
The AFA quoted from the Board report for IRREVERSIBLE in describing the rape scene and claimed that the description provided in the Board report was evidence that the scene was detailed and therefore did not meet the standards in the previous guidelines.
Concerns about the adequacy of the impact test
Some submitters claimed that the sexual violence in IRREVERSIBLE demonstrated the inadequacy of the impact test which, for R18+ classified material, should not exceed high. Some submitters asked what level would exceed high.
Violence limits exceeded?
Other submitters argued that the graphic sexualised violence in IRREVERSIBLE was also perceived to be beyond the limits provided for by the previous guidelines for violent content. In their argument the submitters noted the removal of the statement ‘gratuitous, exploitative or offensive depictions of cruelty or real violence will not be permitted’. It was perceived by submitters that some of the stronger violent content in IRREVERSIBLE would not have been allowed if this statement had been retained in the guidelines.
Stronger statements setting limits required?
Other submitters voiced concerns about the changes to the statements related to sexual violence in the R18+ category. They argued that there exists high community concern about the potential for sexual violence and abuse of women and children, and called for stricter and more objective restrictions than those offered by the impact test.
Other submitters raised similar arguments and commented that stronger statements that set limits for the R18+ classification were required. They cited the actual sex, sexualised violence and sexual violence contained in IRREVERSIBLE as an example of material that should have been refused classification.
Attachment D provides the OFLC’s response to complaints about this film. Section 6.5 reports Board members’ views on the classification decision for IRREVERSIBLE. Section 7.6.2 discusses the arguments raised by submitters through an examination of the Board reports for the films cited.
6 Interviews with Classification Board members, Review Board members and computer games authorised assessors
6.5 Responses to concerns raised by submitters
In relation to the sexual violence in IRREVERSIBLE the Board members interviewed made a number of points. Firstly, it was noted that the intercourse was implied and shot from a distance as compared with BAISE-MOI where entry was shown. It was further explained that the length of the scene while high in impact was not gratuitous as the filmmaker’s intent was for the audience to experience the real time such an act would take. When the Board members were given the previous guidelines and asked whether the wording in those guidelines would have resulted in the same outcome, the Board members stated they took the same meaning from both sets of guidelines (2003 and previous) in description of sexual violence in R18+ films.
Board members interviewed defended the R18+ classification for IRREVERSIBLE and noted that while the sexual violence depicted was high in impact it did not show close-up detail of the act and the portrayal was central to the narrative. The length of the scene was not perceived as gratuitous because it served to emphasise the horrific nature of rape.
7 Examination of Board decision reports
7.6.1 Actual Sex
IRREVERSIBLE is a dramatic work that deals very graphically with serious social issues. The Board noted that ‘the themes of rape, revenge and violence are portrayed and dealt with in such a way that they may be offensive to some sections of the adult community… but were not offensive to the extent that the film warrants refused classification’.
The film IRREVERSIBLE was widely cited in submissions as an example of more permissible content at R18+ under the 2003 Guidelines. The sexual content of the film was targeted as it was perceived to represent a loosening of the standards for sex at the R18+ classification level.
The Board report describes the following incident:
At 19.30 minutes, there is a brief depiction of actual fellatio on a television monitor as well as simulated rear entry intercourse between two males. Because the camera is panning wildly around the dark interior of the club, these depictions are fleeting and in the Board’s view, their impact does not exceed high. The fleeting depiction of actual fellatio on a television monitor, while the camera is panning wildly around a dark interior, was cited by submitters as not permissible content for the R18+ classification. The change in the guidelines, some submitters argued, had resulted in this type of content being permitted (see section 5.8.1).
The test for IRREVERSIBLE was the strength of the impact of individual classifiable elements and their cumulative impact. The Board report describes the elements that were considered in assessing the impact of the classifiable elements as high, but not exceeding high, as this would have warranted an RC decision.
The Board report also noted the other classification tools that informed the Board’s decision. The artistic merit and serious intent of the film (two of the matters to consider in section 11 of the Act) were noted, as were the general principles of the National Classification Code that adults should be able to read, hear and see what they want, and minors should be protected from material likely to harm or disturb them.
It should be noted that on 30 June 2004, IRREVERSIBLE went to the Review Board where the Board’s decision was upheld. It is notable that, of the 15 Board and Review Board members who classified IRREVERSIBLE, only one considered that the film should not be R18+. The analysis of the Review Board’s decision however is outside the scope of this Review’s time period.
There is no evidence to suggest the R18+ decision in relation to IRREVERSIBLE was the result of the change in guidelines.
12.3 Consistency in Classification Decisions Before and After the Change in Guidelines
There is no evidence to suggest the R18+ decision in relation to IRREVERSIBLE was the result of the change in guidelines. This and other classification decisions about films with actual sex and sexual violence were consistent with decisions made under the previous guidelines for similar content.
Attachment D – OFLC responses to titles referred to in the report
On 19 November 2003, eight members of the Board unanimously classified the film IRREVERSIBLE R18+ with the consumer advice ‘strong sexual violence, graphic violence, sexual activity’.
The Board noted that ‘the themes of rape, revenge and violence are portrayed and dealt with in such a way that they may be offensive to some sections of the adult community… but were not offensive to the extent that the film warrants refused classification’. In applying the guidelines, the Board considered that the impact of the classifiable elements do not exceed high and could be accommodated at the R18+ classification.
On 24 May 2004, at the request of the South Australian Attorney-General, the Australian Attorney-General submitted an application for review of the classification of IRREVERSIBLE.
On 30 June 2004, a six member panel of the Review Board, in a 5:1 majority decision, classified IRREVERSIBLE R18+ with the consumer advice ‘high level sexual violence, graphic violence, sexual activity.’
The Review Board considered that although the cumulative impact of the film was strong and disturbing, the content of IRREVERSIBLE did not exceed the guidelines for the R18+ classification. The Review Board said in its reasons for decision that:
…while the overall impact of the material was high, there was not sufficient strength in the behaviour of the protagonists to cause a higher level of impact for any individual scene or cumulatively. Scenes were dealt with in a realistic yet restrained manner that was neither gratuitous nor exploitative. Each scene was justified by the context in which it was presented and the overall theme of the film. The film techniques used by the film-maker – of low lighting, mid to long range shots (rather than close ups), and fleeting glimpses of action (such as in the sex club) rather than slow motion, meant that elements that may have had a very high impact were reduced in impact to high or strong…
…while the classifiable elements and the impact in the overall context of the film IRREVERSIBLE do not justify an RC classification, they do make the film unsuitable for persons less than 18 years of age and warrant specific consumer advice relating to the sexual violence, graphic violence and actual sex contained in the film.– Report on the Review of the Operation of the 2003 Guidelines for the Classification of Films and Computer Games
– Prepared by Kate Aisbett, Entertainment Insights
IRREVERSIBLE premiered on the World Movies pay-TV channel on 29 May 2005.
Julian McGauran background
In May 2005, Des Clark, the Director of the OFLC, appeared at Senate estimates in Canberra. There he was questioned by Julian McGauran (National) regarding the R-rating awarded to IRREVERSIBLE. During the same session, he complained about the classification of 9 SONGS (2004).
Between 1993 and 2011, the Catholic Senator had fought to prevent the release of SALÒ, OR THE 120 DAYS OF SODOM (1975). In 2009, he was invested into a crusader order as a knight of the Equestrian Order of the Holy Sepulchre of Jerusalem and was quoted as being honoured that ‘…the church thought he might be a soldier of Christ’.
May 24, 2005
Senator McGAURAN—First of all, I want to ask you about the movie IRREVERSIBLE, which you classified R. I would like to run through a few things. Do you think the violent rape and murder scene was demeaning to the victim, Mr Clark?
Mr Clark—The board, in looking at the film, decided that the scene was certainly very disturbing.
Senator McGAURAN—Demeaning to the victim?
Mr Clark—A portrayal of this type is demeaning to the victim but, in a narrative context—
Senator McGAURAN—No, that is all I wanted—in the narrow context.
Senator McGAURAN—According to the classification code, demeaning refers to ‘depiction directly or indirectly sexual in nature, which debase or appear to debase the person or character depicted’—so, it was for the victim. Is that how you took it?
Mr Clark—The board does not use the word ‘demeaning’ in its board report in relation to this film, as I recall. The actual fictional portrayal in the film could be considered demeaning, I agree with you there. But the actual film, as it is made, does not demean the victim because it is a fictional narrative that is being portrayed on film.
Senator McGAURAN—So, have you changed your mind? Is it demeaning to the victim?
Mr Clark—In the fictional sense that that is what it is, one could say that. But the board report does not talk about demeaning.
Senator McGAURAN—But it is to be taken in as part of the—
Mr Clark—It says it is high in impact
Senator McGAURAN—But it is not part of your judgment, the demeaning factor?
Mr Clark—If you were talking about a real event such as this, yes—
Senator McGAURAN—Like a documentary?
Mr Clark—But we are talking about a fictional event, not a documentary. In that context, it is not.
Senator McGAURAN—So, if it is a documentary, therefore filming real—it is demeaning.
Mr Clark—It could be.
Senator McGAURAN—It could be demeaning. But, because it is two actors, indeed, it is not demeaning. Is that what you are saying?
Mr Clark—That is correct.
Senator McGAURAN—So, I take it you believe that that rape-murder scene is not demeaning.
Mr Clark—In the context of this film, the board did not find that the scene was a demeaning portrayal, because it is a fictional portrayal in the context of a film which has high impact.
Senator McGAURAN—Most of the films, if not all, are fictional, aren’t they?
Mr Clark—The majority of public exhibition are fictional. There are occasional—
Senator McGAURAN—So your judgments are made on fiction—
CHAIR—Senator, if you could let Mr Clark at least finish his answers, I think it would be helpful to proceedings.
Mr Clark—Senator, there are occasional documentaries which are features. There are occasionally films which would be refused classification which may have demeaning content in the view of the board. So a film which in the view of the board is demeaning is most likely to be refused classification.
Senator McGAURAN—All right. I will take it that you did not think that that particular scene was demeaning to the victim.
Mr Clark—The board did not.
Senator McGAURAN—The board.
Senator Ellison—I think it is clear that Mr Clark can only speak for the board. It is the board that does the classification, as I understand it, not Mr Clark.
CHAIR—Thank you, Minister.
Senator McGAURAN—Okay. He is the chief censor though. The buck stops at your desk, doesn’t it, Mr Clark?
Mr Clark—I carry responsibility of the OFLC and the classification board as chairman of the board—
Senator McGAURAN—Do you have a casting vote?
Mr Clark—At the end of the day, the board votes—
Senator McGAURAN—Do you have a casting vote?
Mr Clark—and, after that, I do have a casting vote.
Senator McGAURAN—Well, that makes you the real focus. How tight was this vote?
Mr Clark—It was not a casting vote situation. It was certainly a split decision by the board—
Senator McGAURAN—But you do not want to be too light about—
Mr Clark—Sorry, it was a unanimous decision.
Senator McGAURAN—shifting it onto the board: ‘The board makes all these decisions.’ You are the chief censor, you are the public face and you are the chairman with the casting vote. If you do not in your position—you certainly get paid more than the others, I suspect—carry some authority and responsibility, I would be surprised.
Mr Clark—The board is a board of statutory appointees who are expected to be independent in their decision making. The board cannot be directed by the chair as to how they should vote. The board will vote according to their view on the matter that is before them. Sometimes they vote unanimously, sometimes there will be a split decision. Rarely is there a situation where there is a casting vote.
Senator McGAURAN—All right. I will not go down that track. I was not meaning to. We will keep it tight, Madam Chair. Did you think that in that particular scene—I must not fall into the trap of continually repeating it—the victim was exploited?
Mr Clark—I find it difficult, because it is a fictional story that is being told. It is represented in a very violent manner.
Senator McGAURAN—Why I focus on this scene is that if you took that scene out it could well have been an MA.
Mr Clark—That is the problem—
Senator McGAURAN—I am focusing on that scene because that is where the classification came in—on that scene. I would say that was the dominant classifier—whether it was an R, an X or RC.
Mr Clark—No, I believe it would still have been an R-rated film because of the murder sequence that precedes that.
Senator McGAURAN—All right then. I did not quite get your answer. Do you think the victim was exploited?
Mr Clark—Senator, it goes back to this division between what is a real event where one could say, ‘Yes, that is the case.’ In this event you have actors who are willingly being paid to act a scene in a movie
Senator McGAURAN—Well, we may as well revoke the whole thing if that is the case. If that is how you are going to judge it—by whether it is a documentary or a film—we may as well get rid of this.
CHAIR—Senator McGauran, let me make it quite clear.
Senator McGAURAN—It is a joke!
CHAIR—In this committee we allow witnesses to complete answers to their questions, we do not interrupt them and we proceed in an orderly fashion. If you would let Mr Clark complete the answers to his questions—
Senator McGAURAN—Offensive answers.
CHAIR—You may find the answers offensive or not, as the case may be—
Senator McGAURAN—Why don’t you put that in your report if that is your view now? Why don’t you put that in your report?
CHAIR—Mr Clark, if you would like to complete your answer to this question, Senator McGauran will ask his next question.
Mr Clark—Senator, the film runs for some 98 minutes. This particular scene, as I recall, is about nine minutes in the context of that film. Yes, it is very strong in content. The board was of the view that the actual rape scene was one where the lack of detail in it, although it was still very high in the R classification, permitted it to stay within the R classification category, particularly given the broader context of the film. If you have seen the film, the film ends on a note where you have very happy, innocent people going to a party. This makes the impact of the film even stronger in some respects, but it diminishes in the length of the film. Taking the scene out of context as a fictional narrative is not helping. Overall, yes, this film is very high in impact. Yes, two scenes in particular are in the top end of R—the board recognised that—but they can be accommodated in the R classification.
Senator McGAURAN—I am referring to the classification code here and under R-rated it specifically lists these criteria which I am pointing out to you. Here is another one. To you think that particular scene, which was dominant in the movie, depicts cruelty?
Mr Clark—It depicts a very violent rape scene.
Senator McGAURAN—Do you think it was implied?
Senator Ellison—Can I say something here which may be of assistance to everyone. Senator McGauran has now struck on the way the question should be put, and that is: what does it depict? The question is, did it demean the victim? Of course it was, as Mr Clark says, a fictional movie and the question is all of depiction—what did it depict? That might make it easier for Mr Clark to answer questions if Senator McGauran puts it in that term: did it depict this sort of thing? It is a fictional film which is depicting certain things. I think that is better wording to put in a question to Mr Clark.
Senator McGAURAN—You cannot just isolate scenes, Mr Clark, because scenes are often taken out and clipped—indeed, recut sometimes in extreme cases—to make a classification. That is a red herring you are putting up, without question. I will move on. But you can see my point. I am trying to read the code here which says ‘a high degree of exploitation’ and whether the sexual violence may be implied. It certainly was implied, wasn’t it, the scene? It was pretty obvious.
Mr Clark—Are you reading from the code? I have the code here. I think you may have the old guidelines for classification, not the code. The code says that we need to ‘take account of community concerns about depictions that condone or incite violence, particularly sexual violence; and the portrayal of a person in a demeaning manner’. They are the code words. It does not condone or incite, in my view, but it certainly is a depiction of violence, and sexual violence. Certainly I am not isolating that scene. With respect, I think you are isolating that scene and I am trying to put that scene into the context of the entire film.
Senator McGAURAN—You are trying to merge it into the greater film. Quite frankly, one scene can ruin a whole film’s classification.
Mr Clark—I agree.
Senator McGAURAN—Good. Stop trying to spread it so thin across the whole movie. It is a paramount part of the movie. But moving on, Madam Chair, many years ago I was involved in a movie called SALO, which was eventually banned.
Senator LUDWIG—Did you appear in it?
Senator LUDWIG—You said you were involved in it.
Senator McGAURAN—I was involved in getting it banned.
Senator LUDWIG—I see.
Senator McGAURAN—There was a scene of a 16-year-old girl or under raped and the movie was banned. What has changed so that IRREVERSIBLE, which has I think under any viewing a worse scene, is allowed?
Mr Clark—I was not involved in the decision regarding that film, Senator, and I do not have access to the board report on that film at the moment. As you have described it, a 16-year-old girl would heighten the impact of a scene such as that. I cannot give you a detailed answer, but certainly that would be part of the consideration by the board.
Senator McGAURAN—So the 16-year-old girl’s scene is a worse scene—
Mr Clark—A child, under the age of 18, yes.
Senator McGAURAN—than what is depicted in IRREVERSIBLE—a mature woman?
Mr Clark—The detail of the scene in IRREVERSIBLE is not high; it is not a detailed scene. Yes, it is long, but it is not detailed. As I do not have knowledge of the other scene, I am unable to make a judgment on it.
Senator Ellison—I point out that if you had a depiction of a sexual act in that situation with a person under 18, it could well infringe the child pornography laws that we have enacted. I can get back to Senator McGauran on that if he is interested, but I think our new laws could catch a situation of that sort where a child is being abused in that fashion.
Senator McGAURAN—That is exactly why the movie was banned. Whatever laws exist now regarding the classification scheme also existed then.
Senator Ellison—I raise that to point out the current status—
Senator McGAURAN—You have told me what has changed since the banning of that one—that the difference regarding the rape scenes relates to the age of the person. Under those circumstances, the Report on the review of the operation of the 2003 guidelines for the classification of films and computer games—I forget who undertook that review—
Mr Jordana—The report was undertaken by a consultant named Kate Aisbett.
Senator McGAURAN—One of the key findings of the report was:
There is no discernible shift in the nature of permissible material within particular classification categories …
So from the old category to the new category there has been no discernible shift.
Mr Clark—From the old classification guidelines to the new guidelines, the 2003 guidelines, her finding was that there has been no shift in the standards contained within the guidelines.
Senator McGAURAN—And you agree with that?
Mr Clark—Yes, Senator, I do.– Julian McGauran (National), Joseph Ludwig (Labor), Chris Ellison (Liberal)
– Des Clark, Director, Office of Film and Literature Classification
– Miles Jordana, Attorney-General’s Department
– Legal and Constitutional Legislation Committee
– Senate estimates, Parliament of Australia
October 17, 2005
Classification Board – Films – public exhibition – complaints
The films ANATOMIE DE L’ENFER (ANATOMY OF HELL) (R18+) and IRREVERSIBLE (R18+) received six and four complaints respectively, the complainants contending that the films should be RC.
Classification Board – Films – sale or hire – complaints
There were 93 complaints about videos and DVDs covering a range of films including seven complaints about the film IRREVERSIBLE (R18+).
Classification Review Board – complaints– Classification Board & Classification Review Board
The OFLC also received six complaints about ANATOMIE DE L’ENFER (ANATOMY OF HELL) (R18+) and 11 complaints about IRREVERSIBLE (R18+), most of which addressed the decisions of both the Classification Board and Classification Review Board.
– Annual Report, 2004 to 2005
Back in high-definition
In June 2014, Accent Film Entertainment released IRREVERSIBLE on Blu-ray.