Censorship of Lolita (1997)

The 1997 remake of LOLITA was on the radar of morals campaigners before it was even submitted to the OFLC. After being awarded an R-rating, an attempt was made to take it to the Classification Review Board. This failed after the groups were found to be ineligible to force such a review.

The Howard Government subsequently changed the law and broadened the definition of a ‘person aggrieved’ by a decision.


Lolita

Directed by Adrian Lyne / 1997 / France – USA / IMDb

Even before it was classified, a campaign was building to have the LOLITA remake banned in Australia. The South Australia Liberal, Trish Draper, was the behind the push.

February 16, 1999
Mrs DRAPER (10:59 PM) —Recently I had occasion to speak out publicly against the prospect of a film being released in Australia although not yet classified by the Office of Film and Literature Classification, a film entitled LOLITA , based on the novel by Vladimir Nabokov. This in turn created something of a frenzy on the part of some people in the media. In particular, Mr Phillip Adams, in his Weekend Australian article, without actually naming me or bothering to speak to me about this issue, poured vitriol on my efforts to take some steps to protect our children and even accused me of being xenophobic. I have written a response to Mr Adams, and with the House’s indulgence, I will read from that.

Mr DEPUTY SPEAKER (Mr Nehl) —Order! It being 11 p.m., the debate is interrupted.

– Trish Draper (Liberal)
– Garry Nehl (National)
– House of Representatives, Parliament of Australia

February 18, 1999
Mrs DRAPER (12:35 PM) —As I stated several nights ago in the adjournment debate, I recently had occasion to speak out publicly against the prospect of a film being released in Australia, although not yet classified by the Office of Film and Literature Classification—a film entitled, LOLITA, based on the novel by Vladimir Nabokov. Unfortunately, there was not enough time to finish, so I will continue here.

This in turn created something of a frenzy on the part of some people in the media. In particular, Mr Phillip Adams, in his Weekend Australian article, without actually naming me, poured vitriol on my efforts to take some steps to protect our children and even accused me of being xenophobic. Again, as I stated in the House earlier, I have written a response to Mr Adams in the form of a letter to the editor to the Australian, dated 16 February 1999, which, sadly, has not yet been published. That may still be. We live in hope. The letter is as follows:

Dear Sir

I choose to refute comments made by Phillip Adams in his article, ‘In pursuit of Power Abusers’ (Weekend Australian , 13-14 February 1999) with reference to an unnamed Liberal MP wanting to have the film, LOLITA , sight unseen, banned.

Well, yes, I’m not afraid to admit publicly, having recently finished reading the book, LOLITA , by Vladimir Nabokov, on which the film is based, I do have grave concerns about the film which, to date, has not yet been classified by the Office of Film and Literature Classification.

Upon deconstruction of the text, the main themes are: (i) that of a middle-aged man (stepfather) who desires to abduct, rape and keep prisoner a 12-year-old girl, specifically after priming her for that purpose, which he does for two years until her escape, sadly, into the arms of another paedophile and child pornography film-maker; (ii) his justification for continual sexual abuse of his step-daughter; and (iii) his desire to procure more victims via Lolita having more daughters by him.

The justification of his abuse by statements to the effect that his loves her and wants to care for her sounds a bit like Phillip Bell’s ‘hebephile’ defence to me. When any adult loves and cares for a child, that’s exactly what they do—not sexually exploit them for their own deviant sexual gratification. Mr Adams states the film is a depiction of ‘child sexuality’. Isn’t that the problem? This notion is used by paedophiles to justify their deviant behaviour. The term ‘child sexuality’ in the context of Adams’ comments on the film is, in my view, incongruous.

I have no objection to examining the serious issues relating to the abuse and exploitation of children for educative and preventative purposes. However, a film depicting the aforementioned in the genre of ‘film entertainment’ is beyond the pale.

The most up-to-date research suggests there are two things that paedophiles crave most. The first is more children to sexually abuse. The second is mainstream acceptance and sympathy for their activities in any form (Institute of Criminology Conference, 14-15 April 1997, Paedophilia Policy and Prevention). I, for one, do not wish to put a smile on a paedophile’s face.

Mr Adams refers to covers of magazines with fourteen year old girls. Yes, sex sells, as does violence, particularly in videos, computer games and films, so how low, if we continue to push boundaries and lower the thresholds of tolerance, can we as a society go? Mr Adams may be consoled by the fact that these are issues I have consistently raised with the Attorney-General’s office, as well as the Office of Film and Literature Classification.

I’m a little bit perplexed as to why Mr Adams attributes to the unnamed Liberal MP the comment, “Not only is it filth, (the book, ‘LOLITA’) but it is foreign filth.” I am not xenophobic, Mr Adams, and I resent the inference in the article. I am also perplexed by Peter Goers’ hysterical reaction on local radio recently in relation to my stance on this issue.

Yours sincerely

(Mrs) Trish Draper MP (nee Zimmermann)

– Trish Draper (Liberal)
– House of Representatives, Parliament of Australia

Classified R

Despite the protests of Trish Draper, a 138-minute CD of LOLITA was passed with an R (Adult themes, Medium level violence) rating by the OFLC.

Beyond Films was the applicant.

The National Classification Database lists March 15th, however, the following speech confirms it was March 8th.

March 8, 1999
Mrs DRAPER (10:51 PM) —It is with much disappointment that I rise to speak on a very serious issue on an important day such as International Women’s Day. However, I do recognise that once again giving voice to the campaign against the prospect of the film LOLITA being released in Australia is a very important issue to Australian women and men and their families.

It is with incredulous dismay that I report to the House that just today the Office of Film and Literature Classification gave LOLITA an R rating, effectively allowing it to be viewed by the adult population of this country. Yet in X-rated movies it is against the law to depict sexual acts between children and adults, and it is against the law to depict an 18- or 20-year-old as a minor having sex with an adult.

In my last speech regarding this issue I mentioned the reactions on the part of some people within the media which followed my initial protest on this issue. On that occasion it was Mr Phillip Adams, in his Weekend Australian article, who poured vitriol on my efforts to take some steps to protect our children. Now I am saddened to discover that Samela Harris has jumped to the defence of the film and, in doing so, has engaged herself in a bizarre effort to support the screening of the above mentioned film.

I am dismayed and appalled, as are many of my parliamentary colleagues and people within my electorate of Makin, about the possible release of LOLITA. In her article in the Advertiser on Saturday, 6 March 1999, entitled ‘The will of Irons’, Ms Harris describes the protests shown by so many within our community in relation to this issue as ‘nonsense’. I do not understand how Ms Harris can completely write off as ‘nonsense’ the concern shown by so many in our community in relation to this very serious issue. In the article Ms Harris quotes actor Jeremy Irons—and I accept the quote as accurate—as saying that:

… he and the director worked to make the paedophile into someone audiences would sometimes like, sometimes laugh at and sometimes feel for.

Honestly, the question that has to be asked is: why? Why would you want to make a paedophile into someone to ‘like’, ‘laugh at’ or ‘feel for’?

As I have said before, the most up-to-date research suggests that there are two things that paedophiles crave most and they are more children to sexually abuse and mainstream acceptance and sympathy for their activities. Portraying a paedophile as someone who audiences can ‘sometimes like, sometimes laugh at and sometimes feel for’ could lead to eventual mainstream acceptance and sympathy for these actions. This is totally outrageous and I find it to be very bizarre. How can we as a society accept this sort of behaviour?

Further in the article Ms Harris explains how the LOLITA film was filmed with caution and how every effort was made to ensure that the young star’s mother was on the set at all times and that an older body double was used for all sexual implications. If some in the entertainment industry believe it is not damaging to have images of a middle aged stepfather having an abnormal, deviant and sexually abusive relationship with a child, why bother with an older body double? Because it is not okay—it is against the law; it is illegal to have sex with a child.

The article states that a certain actress was not cast for the role of Lolita because her screen reactions had been described as ‘like a mini-adult’. This statement in itself shows that the directors did not want to portray a middle aged stepfather in the film having an abnormal, deviant and sexually abusive relationship with a child, his stepdaughter, who would fit the image of an adult, albeit a ‘mini-adult’ perhaps sophisticated in the ways of the world. Yet the portrayal of a young innocent child being sexually abused by a middle aged stepfather is acceptable to some. Even Irons explains that it was her youth which made her ‘terribly attractive’. In his interview Mr Irons said that the actress who played Lolita was:

… a fawn-like creature who was not pretty and yet because of her youth and lack of self-consciousness she was terribly attractive and also infuriating—all the things LOLITA should be.

Do they mean all the things a child being sexually abused should be? How can a child defend herself against a grown man? He goes on to say:

I think we were lucky to catch her at that age.

So here this film portrays an innocent, vulnerable young person as being attractive sexually and open to predatory sexual abuse by an older, more powerful man purely because of her age. How sick and how bizarre! Why would we, as a society, want mainstream acceptance of and sympathy for paedophile behaviour? (Time expired)

– Trish Draper (Liberal)
– House of Representatives, Parliament of Australia

Rating challenged

On 28 March 1999, three Western Australian groups applied to have the R-rating reviewed. They were Helping All Little Ones (HALO), Adult Survivors of Sexual Child Abuse (ASSCA) and an individual on behalf of Child Protection Connection (CPC).

The Classification Review Board were set to meet on April 9.

Fighting on

With a review date locked-in, Trish Draper was piling on the pressure.

March 29, 1999
Mrs DRAPER —I have been disappointed to read various reviews written by movie critics and others on the film LOLITA . Hollywood has succeeded in seducing and manipulating so-called intelligent academic people with the idea that it is quite okay for adults to have sexual relations with children. A number of people have now written and been heard describing LOLITA as a love story. Some have even suggested that the character of Lolita is as much the seducer as the one seduced—the initiator, the promiscuous nymphette. The silence from our feminist writers is deafening. These images have the effect of legitimising the victimisation of children. They dilute the message that it is never okay to have sex with a child and that it is up to the adult in any relationship to act responsibly and to ensure that certain boundaries are never crossed.

When confronted with their crimes in court, paedophiles have often used the excuse that they were seduced by the child in question, even in some cases where the child was as young as five. The film LOLITA will do much to provide comfort to these predators and justification for their twisted self-justifications. How clever of Hollywood. The theme of violence has been done to death, so they are now saying, ‘Let’s now push out the boundaries so we can have sex with children.’

– Trish Draper (Liberal)
– House of Representatives, Parliament of Australia

March 30, 1999
Mrs DRAPER (10:35 PM) —Yesterday in this place I spoke about the success that Hollywood and some sections of the film and entertainment industry have had in seducing and manipulating so-called academics and people with supposed intelligence of some sort with the idea that it is quite okay for adults to have sexual relations with children. Unfortunately, in my members’ statement I was not able to finish my last sentence, which should have read, ‘How clever of Hollywood. The theme of violence has been done to death so now they are saying, “Let’s now put out the boundaries so that we can have sex with children and adults portrayed as entertainment for mass audiences to sell tickets and make money.”‘

What is even more astonishing is the silence from our so-called feminists—those who are supposed to be concerned about the way women are portrayed, a woman’s position in society and so on. How about the images of young girls and teenagers? Their silence is not only deafening but also pathetic and sickening. Here we have the Hollywood film industry commentators and the spin doctors all suggesting that paedophiles are or should be characters worth evoking sympathy from mainstream audiences. How successful they have been. What fools we are as a society to believe them, to get sucked into the vortex of their money making schemes.

The movie LOLITA has been described variously as a love story, a tragic love story and even a tale of morality. Oh, please! Can I at this point remind everyone that Australian law states that adults cannot have sex with a child in a paedophilic or incestuous relationship, whether discreetly portrayed or otherwise.

It has been stated that the character of Lolita is as much the seducer as the one seduced—the initiator, the promiscuous nymphette. This last contention, which we have heard quite a bit lately, is particularly sickening. Whether it is the way the film interprets the character or the way that the critics have interpreted the film, it is irresponsible and illegal to portray a child or young teenager having sex with an adult, let alone contemplate the victim as being emotionally mature enough or knowing enough to take on a middle aged mature adult in an equal relationship. Have the feminists in our midst stopped to think of what this kind of portrayal does for women’s rights? The loud and clear message to sexual predators is that they can have their way with underage children—boys or girls; they do not have to take responsibility for their own actions and when they are finished they can blame their victims.

It took a long time for our society to wake up to the damage being wrought by the excessive diet of violence in film, music and the entertainment industry generally, that is, video and computer games. Belatedly, some attention has been paid to this issue, although not nearly enough, as we all know. Meanwhile, Hollywood and others in the entertainment industry have served up a diet of constant and increasing violence. They are now looking for some new way to shock and outrage the public all in the name of money, entertainment and big dollars for exploiting our kids—the real life victims. What do they care about art or artistic merit when they are being sexually abused?

In attempts to continue pushing the boundaries of tolerance, sections of the so-called entertainment industry have decided to launch an assault on one of the few remaining taboos in our society. Thankfully, most of us still regard the idea of sex between adults and children as abhorrent. But make no mistake: there are now some sections of the entertainment industry who have set themselves the task for money at any cost. Whatever their motives, there must be a realisation that some barriers are there for a reason. There are some things to which society cannot and must not give its sanction.

Some people have sought to portray this as a freedom of speech issue or a censorship issue. These matters have been openly discussed in the parliament, in the media and in the public. What has not been sufficiently discussed is the impact that the visual media has upon our lives and the responsibility that goes with this. If the film had portrayed the point of view of the teenage girl—the victim who was sexually abused—the reaction to it, I suggest, may have been considerably different. Why then are our media so mute when the character portrayed is a paedophile? Why have they been so easily duped by the fiction that a 14-year-old can happily seduce and manipulate her own stepfather? (Time expired)

– Trish Draper (Liberal)
– House of Representatives, Parliament of Australia

Canberra premiere

A screening of LOLITA was organised by Trish Draper for her Liberal-National colleagues. The Labor Party questioned the arrangement and why they were not invited.

March 31, 1999
Mr LEO McLEAY -Mr Speaker, I have a question for you. I draw your attention to an article in today’s Canberra Times which says:

‘The contentious movie LOLITA will screen at Parliament House today in a special preview for Government MPs who want it banned.’

The article goes on to quote the member for Makin [Trish Draper] as saying:

‘We’ve got a lot of MPs really concerned about this issue but some have expressed to me that because of the way this movie deals with sex with children, they’d rather not watch it …’

Mr Speaker, my question to you is: how many staff members have been rostered on for the theatrette to both screen this film and to ensure that people are admitted in accordance with the R18 rating of the movie; what is the cost of those extra staff members; and will you advise the House at its next sitting how many government members attended?

Mr SPEAKER-Obviously, not all of the member for Watson’s question can be responded to immediately. I can inform him and the House that the requirements for the screening of this film are exactly the same as the requirements for the screening of any other film. I will check the question of the number of staff members involved.

Mr LEO McLEAY -Mr Speaker, I have another question for you on this matter. You have just said that the screening of this film is the same as the screening of any other movie in this place. My understanding is that, to all the other movies that have been run, everyone is invited. Today’s article says that this is a private showing for Mrs Draper and her people. As that is a party political showing, the House of Representatives should not be paying for it.

Mrs Irwin-Is it a fundraiser?

Mr SPEAKER-The member for Fowler is excused from the service of the House under standing order 304A.

‘The honourable member for Fowler there upon withdrew from the chamber.’

Mr SPEAKER-The member for Watson did not ask me a question in his latter statement, but I would indicate to him that when the Speaker’s office was approached about the screening of this film I signed the appropriate minute indicating that the normal circumstances apply. If the film. is restricted to government members only, I will check that with the member for Makin.

Mr LEO McLEAY -Mr Speaker, I have a further quick question. If, as the Canberra Times says, this movie is available only to members of the government, will you bill the government for the cost of the screening?

Mr SPEAKER-I have already indicated to the member for Watson the action I will take.

Mr LEE-Mr Speaker, I have a further question on the same issue. If no additional staff have been rostered for this particular film, how are they ensuring that no-one under the age of 18 is attending the film? If the federal law is breached, who is to be held responsible-the member for Makin or the Presiding Officers?

Mr SPEAKER-As I have already indicated to all members of the House, I have signed a minute on this film under the same rules and regulations as other films are permitted in the theatrette of Parliament House. I will check that minute when I am no longer in the chair.

Mr LEO McLEAY -Mr Speaker, this movie is not the same as any movie that has been shown before. Seeing as this is an R-rated movie, will you as the person responsible for the running of this movie in this House, ensure that only those people who are in accordance with the guidelines for seeing R-rated movies are admitted?

Mr SPEAKER-This is not the first occasion in which an R-rated movie has been screened in the House of Representatives, going by memory that is.

Opposition members interjecting-

Mr SPEAKER-Relying solely on the Speaker’s memory, I do not believe this is the first occasion in which an R-rated movie has been screened in the parliament. But that is going by memory, I am the first to concede. I signed the minute indicating that I expected the same conditions to apply to this film as to any other. Clearly, I would take whatever action is necessary to ensure that the laws of the land were not breached within this building. That should be self-evident.

– Questions to Mr Speaker
– Leo McLeay (Labor), Julia Irwin (Labor), Michael Lee (Labor)
– House of Representatives, Parliament of Australia

The speaker was correct, R-rated films had indeed been screened in parliament. LANGUAGE OF LOVE (1969), a Swedish sex-education film, proved to be a hit with politicians in December 1973.

Before that, in April 1970, Don Chipp showed scenes that had been cut by the Censorship Board. The event would go on to be known as ‘Chipp’s Reel’.

One Liberal not at the LOLITA screening was Dr Brendan Nelson.

March 31, 1999
Dr NELSON (7:14 PM) —I, firstly, would like to say that I did not take the opportunity to procure a viewing of the film LOLITA. I had read in the press that it could be hostile to my personal development, so I chose not to see it.

– Brendan Nelson (Liberal)
– House of Representatives, Parliament of Australia

Application denied

Before deciding if the film should be reviewed, it was necessary to decide if any of the groups were allowed to apply.

Following legal advice, it was determined that none of them was ‘persons aggrieved’, so the review did not proceed.

April 9, 1999
Applicants:
Helping All Little Ones (HALO)
Individual on behalf of Child Protection Connection
Adult Survivors of Sexual Child Abuse (ASSCA)

Decision

1. The Classification Review Board declined to deal with the applications from Helping All Little Ones and an individual on behalf of Child Protection Connection, dated 28 March 1999, for a review of the decision of the Classification Board to classify the film LOLITA (Adrian Lyne, 1997) R18+. The Review Board was not satisfied that either applicant was ‘a person aggrieved’ within the meaning of sub- section 42(1)(d) of the ‘Classification (Publications, Film and Computer Games) Act 1995’ (Cth).

2. The Classification Review Board decided that there was no competent application from Adult Survivors of Sexual Child Abuse because the prescribed fee had not been paid in accordance with section 43 of the Act and the Director of the Classification Board had not waived the payment of fees in accordance with section 91 of the Act.

Legislative provisions

3. The relevant legislative provisions are sections 42, 43 and 91 of the ‘Classification (Publications, Films and Computer Games) Act 1995’ (Cth) (‘the Act’). These included requirements that:

– section 42 (1):
‘Any of the following persons may apply to the Review Board for a review of a decision’

(d) a person aggrieved by the decision,’

– section 43 (1):
‘An application for review of a decision must be:’

(d) accompanied by the prescribed fee.’

– section 91(1):
‘The Director may, on application in writing by a person, waive payment of fees that would be payable under this Act if…

(b) the body that would be liable for the fee.., is a non-profit organisation.’

Procedure

4. Three applications for review were made on 28 March 1999. Of the applicants, two were incorporated associations, Helping All Little Ones (HALO) and Adult Survivors of Sexual Child Abuse (ASSCA), and one was an individual on behalf of Child Protection Connection (CPC).

5. The Review Board received written material from the applicants and from Beyond Films Ltd, the Australian distributor of the film (‘the distributor’), on the issue of whether the applicants were ‘persons aggrieved’ under section 42 of the Act and also on the classification of the film LOLITA should the Review Board decide that one or more of the applicants was a ‘person aggrieved’.

6. On 9 April 1999, the six members of the Review Board viewed the film LOLITA.

7, On the same day, the Review Board heard oral submissions from Ms Karen McDonald of HALO and the individual representing CPC, for the applicants, and from Mr Ian Robertson, for the distributor, on the issue of whether the applicants were ‘persons aggrieved’ under section 42 of the Act and also on the classification of the film LOLITA should the Review Board decide that one or more of the applicants was a ‘person aggrieved’.

Evidence

8. In reaching its decision, the Review Board had regard to the following:

(a) the applicants’ Application for Review;

(b) the written material provided by HALO and the individual representing CPC;

(c) the written submission prepared by Holding Redlich on behalf of the distributor;

(d) the film LOLITA (Adrian Lyne, 1997);

(e) oral submissions from Ms Karen McDonald, Coordinator, HALO, and the individual representing CPC;

(f) oral submissions from Mr Ian Robertson, Holding Redlich, on behalf of the distributor;

(g) the relevant provisions of the Act;

(h) relevant case law on standing and the meaning of ‘person aggrieved’ including

Australian Conservation Foundation v. The Commonwealth (1980) 146 CLR 493,

Ogle v. Strickland (1987) 71 ALR 41;

North Coast Environment Council lnc v. Minister for Resources (1994) 127 ALR 617;

Tasmanian Conservation Trust Inc v. Minister for Resources (1995) 127 ALR 580;

Right to Life Association (NSW) Inc v. Secretary;

Department of Human Services and Health (1995) 128 ALR 238;

Executive Council of Australian Jewry v. Scully (1998) 160 ALR 138.

Findings on Material Questions of Fact

9. The film is concerned with a sexual relationship between a 14 year old girl and her stepfather and implies a sexual relationship between her and at least one other adult man.

HALO

10. HALO was formed as an association in December 1997 and was incorporated in June 1998. It has approximately 100 members of whom 30 are full members and entitled to participate as ‘committee members’. It has several branches, all of which are in Western Australia. It has no other groups affiliated with it. It is a non-profit organisation and receives no government funding. It receives financial support from members and is seeking private sector sponsorship.

11. HALO was formed as a voice for children who have been sexually abused. It states that its aims and objectives include:

– providing comfort and support to WA families which have experienced domestic violence or child sexual abuse

– lobbying the government and raising public awareness on child protection issues

– acting as an advocate for children who have been the victims of sexual abuse and for their families

– training and education of medical and legal practitioners, social workers and the Courts in relation to the best interests of the child.

12. HALO has undertaken various activities in the community in relation to some of its stated aims and objectives. It specifically relied upon the following activities:

– organising social events and guest speakers for its members

– the Convenor, Ms McDonald, acts as an advocate for children who have been the victims of sexual assault and their parents when they are involved in cases in the Family Court. Some are referred to HALO by hospitals or the State Department of Family and Community Services. Ms McDonald’s assistance to the family may include informing them about available services and suitable professionals to consult, liaising with the government agencies on an informal basis and making submissions to Legal Aid if the family does not receive assistance. Ms McDonald has no professional training in this area and keeps only informal records about her clients. She is currently providing support to about 50 people who are involved in Family Court cases.

– HALO has access to a trained counsellor who provides services to members in crisis on a voluntary basis

– HALO made a 60 page submission to Legal Aid and sent copies to the Family Court entitled ‘Domestic Violence and Sexual Abuse Cases in the Family Court’. The submission was in response to a verbal request by Legal Aid and does not seem to have been part of a formal inquiry. HALO has had meetings with the Chief Justice of the Family Court of Western Australia and Legal Aid to discuss the issues raised in their submission.

– HALO has conducted some activities to raise public awareness of the issues with which it is concerned, including holding a public meeting attended by 100 people in December 1997. However, the Review Board found that Halo’s major focus was on helping WA families with abused children through Court processes.

Child Protection Connection

13. CPC is an unincorporated association which was formed in January 1999. It has six members. It is a non-profit organisation and does not receive any government funding. The group is concerned with community attitudes towards children and its aims and objectives include ‘making parents aware of how to protect their children from predators’, conducting radio interviews and lobbying Members of Parliament in relation to child welfare legislation.

14. The Review Board considered that the members of CPC are committed to the protection of children in the community and that the organisation has carried out some activities to raise public awareness about issues related to this goal, including lobbying Members of Parliament and speaking publicly, including on radio.

15. The individual member of the CPC claimed that she is an adult survivor of child abuse. She clearly has a sincere personal interest in assisting victims of child abuse.

Reasons

16. The expression ‘person aggrieved’ in sub-section 42(1)(d) is not defined in the Act and there have not been any cases in the Federal Court which have considered the use of the term in this particular legislation. Accordingly, the Review Board found it necessary to look at cases which have considered the meaning of ‘person aggrieved’ in other legislation, including the ‘Administrative Decisions (Judicial Review) Act 1977’ (Cth) and the ‘Racial Discrimination Act 1975’ (Cth). The Review Board recognises that the meaning of ‘person aggrieved’ may be slightly different in the context of this legislation, given that an applicant before the Review Board will have a different role to play than an applicant before a Court. However, the Board has found the cases which have considered the use of these words in other legislation to be a useful guide in interpreting the expression ‘person aggrieved’ in this legislation.

HALO

17. HALO’s submission on the question of whether their organisation was a ‘person aggrieved’ was that since the aim of their organisation was to defend the interests of sexually abused children, and since it considered that the film promotes child sexual abuse, this film directly affected their organisation.

18. The Review Board does not doubt the sincere commitment of the members of HALO to its stated aims and objectives. However, the Review Board does not consider that HALO is a ‘person aggrieved’ for the purposes of the Act because it does not have a sufficient ‘special interest’ in the classification of LOLITA as described in case law in this area. (See, for example, ‘ACF v Commonwealth’ (1988) 146 CLR 493 at 530,547-548; ‘North Coast Environment Council Inc v. Minister for Resources’ (1994) 127 ALR 617 at 636-637.)

19. In particular, the Review Board did not consider that HALO demonstrated that they could be considered a representative of the public interest on the issue of the protection of children from sexual assault. They are a relatively small and recently-formed group and do not have a long history of involvement in these issues. They are neither a peak body nor an umbrella organisation. Apart from one submission prepared for Legal Aid, they are not recognised or consulted by government bodies in relation to these issues nor do they receive any government funding for their work. There was little or no evidence provided to the Board that they carried out activities in relation to some of their stated aims and objectives, such as the training of professionals working in the area or lobbying the government on child protection issues.

20. The Review Board was of the view that HALO did not possess the attributes which courts have found to be relevant in considering whether organisations which claim to be representative of a particular public interest have a ‘special interest’ in a matter. (See ‘North Coast Environment Council lnc v. Minister for Resources’ (1994) 127 ALR 617 at 637-638; ‘Tasmanian Conservation Trust Inc v.The Minister for Resources’ (1995) 127 ALR 580 at 613-614.)

21. In relation to HALO’s claim that LOLITA would interfere with their efforts to educate people about sex offenders, the Review Board found that there was insufficient evidence that HALO ran significant numbers of education programmes or other campaigns on these issues, aside from one public meeting entitled ‘Beware paedophiles’. This claim was not therefore established to the satisfaction of the Review Board.

22. The Review Board also found that HALO did not have a special interest in the matter by reason of their profession or vocation (‘Ogle v. Strickland’ (1987) 71 ALR 41). In particular, despite Ms McDonald’s statement that she has dedicated her to life to the protection of children, the Review Board did not consider her work as an advocate for families involved in the Family Court to be part of a profession or a vocation. She has no formal training in the area and does not maintain formal records of her work. In any event, Ms McDonald’s work as an advocate, and the work of the counsellor, were not sufficient to give HALO, as an organisation, a professional or vocational interest. The main role of the organisation is as an advocacy body for families of abused children in the Court system in Western Australia, rather than as an association of people whose vocation is related to child welfare.

Child Protection Connection

23. The Coordinator brought the application on behalf of CPC. A person may be a ‘person aggrieved’ because of their special responsibility to safeguard the interests of a representative organisation (‘Executive Council of Australian Jewry v. Scully’ (1998) 160 ALR 138 at 150).

24. The Review Board considered that the Coordinator represented a support and advocacy group for the protection of abused children, but no evidence was provided by the organisation to suggest that it was representative of the wider public interest which might mean that it would qualify as a ‘a person aggrieved’. The organisation is not a peak body in the area of child protection; it does not receive any government funding nor is there any evidence of government recognition of CPC as a body that should be consulted on these issues; the organisation has only been in existence for a very short period of time and little evidence was provided to the Review Board to support some of its claims of involvement in this area.

25. As with HALO, the Review Board was of the view that CPC did not possess many of the attributes which the Courts have found to be relevant to the possession of a ‘special interest’ by representative organisations. (See ‘North Coast Environment Council lnc v Minister for Resources’ (1994) 127 ALR 617 at 637-638; ‘Tasmanian Conservation Trust Inc v. The Minister for Resources’ (1995) 127 ALR 580 at 613-614. In the Review Board’s opinion, since CPC has not demonstrated that it has a special interest in the classification of the film LOLITA as a representative body on child protection issues, the individual could not be a ‘person aggrieved’ by reason of her role as co-ordinator of that organisation.

26. The individual also claimed that she was a ‘person aggrieved’ because she had been a victim of sexual abuse as a child. Because a film depicts the subject of child sexual abuse, this does not of itself, in the view of the Board, make a survivor of sexual abuse a person with a sufficient interest to be a person aggrieved by a decision to classify the film.

Adult Survivors of Sexual Child Abuse

26 The Review Board considered that since neither a fee had been received in accordance section 43 of the Act, nor a waiver granted by the Director of the Classification Board in accordance with section 91, there was no competent application from ASSCA before the Board.

Summary

28. The Review Board’s decision was that it declined to deal with the applications for a review of the classification of the film LOLITA because neither of the applicants in the two competent applications before the Board was a ‘person aggrieved’ within the meaning of sub-section 42(1)(d) of the Act. As a result of this decision, the Review Board did not proceed to review the classification of the film.

29. This decision was taken after full consideration of the applicants’ submissions and in light of the relevant legislative provisions and case law.

– Classification Review Board report

What just happened?

Tara Gutman from Beyond Films, the distributor, wrote this detailed overview of the case.

June 1999
The recent furore over Adrian Lyne’s 1996 remake of LOLITA has ended with a whimper rather than a bang. While the film industry and free speech commentators boasted the outcome of the appeal application as a victory for their respective interest groups, in fact no such glory can be rightfully claimed. The decision of the Classification Review Board (CRB) was not that LOLITA should not be banned, nor was it that the Office of Film and Literature Classification (OFLC) at first instance was correct in its finding that the film warranted an R rating, its decision was merely that the applicants did not have standing to bring an appeal.

As the theatre box office slows to a trickle and the video goes into manufacture, it is timely to re-cap what happened and consider whether the process proved itself to be an effective one.

Background

LOLITA was awarded an R rating by the board of the OFLC after prolonged deliberation which involved consultation with a panel of experts working in the fields of paedophilia, child sexual abuse and criminology. Its conclusion was that “while the theme of child sexual abuse has a very high degree of intensity and the depictions of realistic violence have a strong impact, these are not sexualised, gratuitous or exploitative to the extent that an ‘RC’ (Refuse (sic) Classification) is warranted.”

Three applicants, non profit groups from Western Australia (WA) who sought to have LOLITA refused classification brought their application for appeal. Of the three organisations the CRB exercised its discretion to waive the application fee in respect of two: Helping All Little Ones (HALO) and an individual on behalf of the Child Protection Connection (CPC). The third declined to pay the fee and was not heard. The film’s distributor, Beyond Films, was invited by the CRB to comment because its interests would be affected by the outcome of the decision.

It is worth noting that there is no requirement for an applicant to have seen the film. Both applicants stated that they refused to see it because they considered the story abhorrent Sensible argument is seriously impaired when the complainants do not have the capacity to address the specifics of the subject matter of their complaint. Most other opponents to the film, including liberal backbencher Trish Draper who spearheaded the initial campaign, ceased to publicly denounce it after they had actually seen it. No person or organisation who viewed LOLITA made a formal complaint to the distributor or to the CRB.

Before considering whether LOLITA should be re-classified, it was necessary for the CRB to determine whether either of the applicants had standing. Subsection 42(1) of the ‘Classification (Publications, Films and Computer Games) Act 1995’ allows that four categories of people may apply to CRB for a review of a decision made by the OFLC:

1. the Minister;

2. the applicant for classification;

3. the publisher;

4. a person aggrieved by the decision.

The applicants submitted they were “aggrieved persons”. The CRB requested that submissions on both standing and the substantive question be made prior to it making a determination on standing. The substantive issue was whether or not the film offended against the standards of morality, decency and propriety generally accepted by reasonable adults.

“Aggrieved Person”

Because the term has never been judicially considered in the form in which it appears in the Act, the CRB suggested that the applicants consider the expression as it has been understood in case law.

In essence, the cases tell us that an aggrieved person must have a “special interest” in the subject matter of the decision above a mere intellectual or emotional concern. The subject matter must be relevant to the activities of the organisation. The nature of the services provided is relevant as are: the outcomes of the work of the organisation to date; the representative nature of their organisations, i.e., the geographical area in which they operate the number of members; whether the membership includes other organisations.

One factor identified in cases and questioned by the CRB and not affirmed in its written decision was an organisation’s financial capacity to represent the public interest effectively, faithfully and adequately.

HALO is a voluntary support group for WA families using the Family Court processes that seeks to raise awareness and advocate on Child Protection issues. It is an unaffiliated organisation with 30 full members at its several branches, all in WA. The CPC is an unincorporated association formed in January 1999, with six members whose objectives include “making parents aware of how to protect their children from predators”.

The CRB declined to deal with the case on several grounds including that the special interest requirement was not met in relation to either applicant and that the CPC did not show that it was sufficiently representative. As such, neither organisation qualified as aggrieved persons. In their reasons for decision, the CRB noted that the meaning of “person aggrieved” as defined in relation to the ‘Administrative Decisions (fiducial Review) Act 1977’ (Cth) and the ‘Racial Discrimination Act 1975’ (Cth) were instructive although not definitive in the context of the ‘Classification (Publications Film and Computer Games) Act 1995’.

In relation to the substantive issue, there was some discussion about section (a) of the Refused Classification section of the Guidelines. The section states that:

“Films and videos will be refused classification if they contain:

(a) depictions of child sexual abuse or any other exploitative or offensive depictions involving a person who is or looks like a child under 16″.

The CRB put it to the distributor that this could be interpreted to mean that any such depiction requires a film be refused classification.

It was submitted in reply that this provision ought to be read in the context of the preceding paragraph which states that the depiction must be in a manner “likely to cause offence to a reasonable adult person”, and that in any event these guidelines must be subservient to the Act It was also considered that the word “depiction” in this context appeared to mean portrayal of actual sexual abuse. This explanation is consistent with the OFLC’s decision which found “that the film does not contain depictions of actual child sexual abuse”.

If “depiction” means simply portrayal then there could be no classified films which show drug misuse, addiction, crime, cruelty or violence. According to the guidelines these are also to be refused classification only when the depiction offends “against the standards of morality, decency and propriety generally accepted by reasonable adults…” This investigation showed that the guidelines lack clarity, and are poorly drafted.

The lesson to be learned from the application to appeal is that the CRB is still finding its way as far as both the interpretation of the Act goes and the inter-relationship of the Act with the code and the guidelines. Further, the fact that the decisions of both the OFLC and CRB are not reported or publicly accessible contributes to the public’s lack of understanding of the role and results of those statutory bodies.

– Lolita’s lesson learned
– Tara Gutman, legal and business affairs executive, Beyond Films
– Australasian Legal Information Institute, Communications Update No. 155
austlii.edu.au

Not giving up

With the theatrical run of LOLITA nearly over, Trish Draper continued to reference the film in parliament.

June 9, 1999
Mrs DRAPER (7:45 PM) —Last week I spoke in this place about several articles written in the Australian by Jane Mills and George Millar in relation to violence in films and whether prudence or the laissez-faire anything goes approach is more appropriate for entertainment on our televisions, in films, video and music. Mr Speaker, I would like to take this opportunity to express my appreciation of your extraordinary capacity for patience and tolerance in listening to all of the speeches I have made on this issue on behalf of my constituents in my electorate of Makin, as I know you have heard me speak on these issues many times previously in this House.

Once again I express my utter dismay at the ever-pervasive violence which is becoming almost a natural part of everyday living in our society. I refer to Mr Scott Gilroy’s murder in front of 100 people in Oxford Street—100 people who clapped and cheered while a man was kicked and bashed to death. Why? We as a society are now starting to reap what we have sown with the anything goes attitude. My heart and my thoughts go out to Colin and Christine Gilroy and their families and friends who have had to come to terms with the appalling and disgusting way in which their son died so publicly—with no-one in the crowd with the decency or humanity to intervene and stop these outrageous sick bullies in the course of their destructive actions in killing a fellow human being, with a crowd of vultures cheering them on. It is a pity we do not have video evidence of the crowd. They should also be charged as accessories to murder.

As you would be aware, Mr Speaker, recently I have been the target of malicious attacks by journalists in relation to my call for the censorship rating of the film LOLITA to be reviewed. This film is about a violent, sexually abusive relationship between a sick paedophile—a 45-year-old stepfather—and a 14-year-old stepdaughter who has no choice in the matter. But according to some in the media, this is okay; the film is just a sweet, innocent love story full of moral teachings. As members of the federal parliament we need to now make a stand, to set some standards in relation to the portrayal of the abuse of our children—whether that portrayal is through the promotion of paedophiles’ ideals or violence being portrayed as okay for entertainment. As I said earlier, what we sow as a society we reap. In the short time left to me, I would like to quote from an article titled ‘LOLITA denies the reality of abuse’. It was published in the Green Left weekly on 21 April and it is by Zanny Begg. It says:

“The film’s problem is not that it depicts the sexual abuse of young people (a depressingly common feature of our society) but the manner in which it does so.

The story is narrated by Humbert. This forces the audience to see the unfolding relationship from his perspective. This device allows Lyne to sexualise almost every moment that Lolita graces the screen. Through Humbert’s eyes, we watch water from the sprinkler soak Lolita’s dress. As she undresses, the camera focuses on her legs, her red lipstick, objectifying every part of the adolescent Lolita. By constructing the film in this manner Lyne attempts to draw the audience into Humbert’s world.

The shocking part about LOLITA is the manner in which the film tries to make the viewer identify with Humbert. Irons plays the part with such sensitivity and pathos, you almost believe his claim to ‘love’ Lolita.

But of course any notion of consent is exploded by the reality of Lolita’s life. When her mother is run over by a car, Humbert becomes her sole guardian. There are more frequent incidents of violence as Humbert struggles to keep Lolita under his control. One of the most horrifying scenes is where Lolita barters sex for a $1 raise in her pocket money. There is absolutely nothing consensual about Humbert and Lolita’s relationship and the film’s ambivalence on this is unjustifiable.

What a new version of LOLITA might have more usefully examined is the impact of paedophilia on those who suffer from it. Twisting Lolita’s crush on Humbert into ‘consent’ denies the reality of her rape. Humbert raped Lolita, held her captive and abused her—there is nothing ambiguous about that.”

– Trish Draper (Liberal)
– House of Representatives, Parliament of Australia

VHS release

Towards the end of 1999, LOLITA was issued on video by Twentieth Century Fox Home Entertainment.

Lolita (1997) - VHS videotape 1
VHS – 20th Century Fox

The tagline on the cover was ‘See it and make up your own mind’.

Complaints to Government

An organised letter writing campaign saw the Attorney-General receive nearly one thousand complaints regarding the R-rating

September 20, 1999
Complaints – Films – Public Exhibition
The OFLC received 17 phone and 58 written complaints about films exhibited in cinemas.

Of these, 37 were in relation to the ‘R’ classification of the film LOLITA.

Ministerials
The OFLC processed 1,310 complaints directed to government ministers and referred to the office by the Attorney-General’s department.

The majority of these Ministerial complaints (945) were in relation to the classification and subsequent release of the film LOLITA.

– Classification Board
– Annual Report, 1998 to 1999

September 29, 2000
Complaints – Films – Public Exhibition
Concerns that the film LOLITA would encourage paedophilia were the basis of two complaints received within the reporting period.

Ministerials
There were also a number of letters (13) about the film LOLITA within the reporting period.

– Classification Board
– Annual Report, 1999 to 2000

Increased censorship

The fallout from the LOLITA case resulted in the Howard Government changing the definition of a ‘persons aggrieved’. Here Brian Harradine speaking in favour of the bill.

February 28, 2001
Senator HARRADINE (5:45 PM) —I am supporting the provisions in the bill, which I think are needed, given the interpretation of the section by the court. Honourable senators will know that there is a great degree of uncertainty over the extent to which organisations can currently seek review of classification decisions. An example of that is the LOLITA case. Three organisations in Western Australia with longstanding interests in the counselling of victims of child abuse and the prevention of paedophilia were found not to have the standing to seek a review of the classification board’s decision.

Rather than have a narrow attitude to this, I agree that there should be an opportunity for groups such as those with a longstanding interest in matters to be able to appeal and have standing. This is important in this area. We are talking about their ability to have standing in respect of decisions on classifications, yet I do not think it is proper to restrict that standing in effect to the publishers of the films or computer games. I think that the publisher of a film and an applicant for the classification of a film, computer game, et cetera, represent the business sides but we should have appropriate standing for other organisations which have a longstanding interest in the area. I support the government’s bill.

– Classification (Publications, Films and Computer Games) Amendment Bill (No. 2) 2000
– Brian Harradine (Independent)
– Senate, Parliament of Australia

On becoming law, Christian groups such as the Australian Family Association were able to bring several titles before the Classification Review Board. A full list of challenged decisions is available on our ‘Protest’ page.

DVD release

In 2001, a ‘Special Edition’ DVD of LOLITA was issued by Twentieth Century Fox Home Entertainment.

Lolita (1997) - DVD cover 1
DVD – 20th Century Fox

The Australian DVD appears to be the same as the Pathe Distribution one in the UK.

The British Board of Film Classification initially banned that disc for containing two deleted scenes that ‘…featured highly eroticised representations of the 14 year old Lolita character having sex with the middle-aged Humbert.’

THE COMIC BOOK is a longer version of a scene in the film. It now shows Lolita’s bare breasts and her legs being touched by Humbert.

THE LAKE POINT COTTAGES is another longer version of a scene in the film. It again shows Lolita’s bare breasts and body as she removes her underwear.

It is unclear why they are also missing from the Australian DVD.

Morals crusader & taxpayer funds

The protests by Trish Draper (Liberal) would see her become one of the Howard government’s most prominent morals campaigners. She would follow up LOLITA with challenges against films such as BAISE-MOI (2000), HANNIBAL (2001) and SALÒ, OR THE 120 DAYS OF SODOM (1975).

Her image was tarnished in 2004 when she was caught taking her then-boyfriend on a taxpayer-funded European trip.

May 29, 2004
What goes around comes around, they say. Federal Liberal MP Trish Draper looked a genuinely sad figure this week as she sought to rescue her reputation and her political career. Her halting delivery in Parliament on Monday reflected the awful pressure she’d been experiencing as revelations about her publicly funded European study tour in 2000 bounced around the nation.

So what made Draper so special? Maybe she set herself up for a fall. To the extent that Draper had any national profile, it was as a morals crusader. A member of the conservative sub-group of Coalition MPs known as the Lyons Forum, Draper was active in persuading the Howard Government to ban the French film BAISE-MOI in 2002.

She also organised a special screening of the remake of Vladimir Nabokov’s LOLITA, starring Jeremy Irons, at Parliament House in 1999 for sympathetic fellow MPs so that they could all be sickened and outraged together.

If you’ve been wondering when you heard of her before, that’s probably when.

Draper looked like a woman under siege as she told Parliament: “It has been claimed that (the trip) did not fall within the rules pertaining to MPs’ travel entitlements. Such claims are false and defamatory. These claims have further been used to make personal attacks on me and my family, which are again false and defamatory.”

She looked pathetic, in the non-pejorative sense of the word. All the details of her private life and her romances were being trawled around for public consumption and titillation. It cannot have been nice.

But Draper has styled herself – indeed, has made a reputation in Canberra and Adelaide – as someone devoted to government putting its mitts all over what others see and hear. She has been a champion of censorship, anxious for the state to control the flow of information and images on moral grounds.

It hardly needs to be said that Draper, and anyone else for that matter, has the right to hold these opinions and to campaign for them. But when you stand up to do that, you need to make sure no one can come back at you and question your own behaviour.

– They’re only human, after all
article @ theage.com.au

Barnaby Joyce vs. SBS

In October 2005, Barnaby Joyce took the chance in Senate estimates to question SBS about their screening disgusting and blasphemous programs. Up for discussion was such inappropriate programming as QUEER AS FOLK and the documentary LOST WORLDS: THE REAL FAMILY OF JESUS.

Joyce mistakenly claimed that the channel had screened Adrian Lyne’s LOLITA when it was, in fact, the Stanley Kubrick’s M-rated 1962 version. Shaun Brown and Julie Eisenburg from SBS were present to explain this to the confused Senator.

October 31, 2005
Senator JOYCE—In May you had LOLITA on. LOLITA is rated R, if you got it from a video store. How did you manage to get that on?

Mr Brown—It was not rated R for—

Ms Eisenberg—Was that the Stanley Kubrick version?

Mr Brown—The Stanley Kubrick 1960s film.

Ms Eisenberg—I think we would need to take that on notice. There was another version of it which was made a number of years later which had a different rating. R rated content is not permitted on SBS under our codes of practice.

– Environment, Communications, Information Technology and the Arts Legislation Committee
– Special Broadcasting Service: Discussion
– Senate estimates, Parliament of Australia

DVD rerelease

In July 2006, LOLITA was passed with an R18+ (Adult themes, High level violence) rating. In 1999, the consumer advice had been, ‘Adult themes, Medium level violence’.

Lolita (1997) - DVD cover 2
DVD – Madman

The applicant, Madman Entertainment, released it on DVD in September 2006.

Coming to Blu-ray

Via Vision Entertainment is due to release LOLITA on their Imprint Films label on September 28.


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