EFA logo Electronic Frontiers Australia
PO Box 382 North Adelaide SA 5006  
Email: [email protected]  
Web: http://www.efa.org.au/  

3 August 1998

The Commonwealth Ombudsman
Level 6
1 Farrell Place

Dear Sir/Madam

Subject: Office of Film and Literature Classification (OFLC)

We provide below details of a complaint regarding the Office of Film and Literature Classification (OFLC) and seek your assistance in obtaining a legislatively mandated service for which we paid more than three months ago.

Despite both oral and written inquiries, the OFLC has failed to provide this service and have now, after three months, advised that they "decline" to provide same because they are uncertain of the powers conferred on them by the legislation under which they are established. We do not consider this to be credible, nor a justifiable reason for refusing to act on our application for service.

As you would be aware, the OFLC is established under the Commonwealth Classification of (Films, Publications and Computer Games) Act 1995 ("the Act") and their primary role is to provide a classification service on application and payment for that service. Under complementary State and Territory enforcement legislation it is an offence to sell, distribute, exhibit, etc films, videos, computer games and various types of publications unless they have been classified by the OFLC. It is also an offence to publish, distribute, etc, material which the OFLC has formally "refused to classify". An OFLC classification provides a complete defence to publishers, distributors etc against prosecution under complementary State and Territory censorship legislation, provided distribution of classified material complies with legislated conditions relative to the particular classification granted by the OFLC. In summary, in order to comply with the law, it is necessary to apply for and obtain a classification from the OFLC prior to publishing, distributing, etc certain types of information.

On 24 April 1998, we mailed an application for classification of a publication to the OFLC in accordance with Section 13 of the Act which states:

"13.(1) An application for classification of a publication must be:
(a) in writing; and
(b) made in a form approved by the Director in writing; and
(c) signed by or on behalf of the applicant; and
(d) accompanied by:
(i) the prescribed fee for that category of publication; and
(ii) a copy of the publication."

Our application complied with those requirements (copy of application form attached).

Our cheque in the amount of the prescribed fee was cleared through our bank account on 29 April. Over a month later, we received the OFLC's Receipt No. AW463660 (copy attached). This receipt is dated 28 April although, according to the envelope postmark, it was not posted by the OFLC until 28 May. The envelope contained nothing other than the receipt.

On 16 June, the writer telephoned the OFLC to ascertain the status of our application. I was put through to a person named Ron who advised he had no record of our application. He transferred me to Jenny Rae, Senior Classifier. Ms Rae said she was surprised we had not received a response as she thought our application had been dealt with some time ago. Ms Rae said she would check and called me back several hours later apologising for that delay, which she said was caused by having had "to hunt through files". She then said that no classification decision had been made because our application had been referred for legal advice as to whether the Classification Board has the "jurisdiction" to classify the particular publication.

We note that the Act defines "publication" as follows:

""publication" means any written or pictorial matter, but does not include:
(a) a film; or
(b) a computer game; or
(c) an advertisement for a publication, a film or a computer game;"
The publication we submitted for classification falls unquestionably within the above definition.

On asking when the OFLC expected to receive the aforementioned legal advice, Ms Rae said that she really couldn't say because the Government Solicitor does things in their own time and the OFLC "really can't push them".

We are mindful of the prior Commonwealth Ombudsman's comments earlier this year that oral advice from government departments and agencies is not always correct. Furthermore, several months' delay in the provision of classification services necessary to comply with the law is highly unsatisfactory and warrants, at least, more than oral explanation.

Therefore, on 1 July, we wrote to the Acting Director of the OFLC, Ms Andree Wright, requesting advice of the status of our application and the reason for the delay in response, as well as advice of when we might expect to receive notification of the applicable classification (copy of our letter attached). Ms Wright subsequently informed us, on a facsimile cover sheet dated 6 July addressed to our email address and sent via Australia Post mail, that our letter of 1 July was "under consideration and will be replied to as soon as possible." (copy attached). It is unclear why our letter would be "under consideration" if the verbal advice from Ms Rae three weeks earlier was correct.

We have since received a letter dated 17 July signed by the Acting Director of the OFLC. Ms Wright advised therein that acting on our application "is probably outside the powers conferred on the Classification Board by the Act" and that "the Board declines to act on the classification application" unless we obtain a Court ruling informing the Board of the powers conferred on them by the Act (copy of letter attached).

We are unable to identify any provision in the Act which enables the Classification Board to refuse to act on legislatively-compliant applications for service merely by claiming that they are uncertain of the powers conferred on them by the legislation under which they are established. As stated above, the publication we have submitted for classification falls unquestionably within the definition of "publication" in the Act. Further, the Act does not specify any types of publications that are exempt from classification, nor that the Board may "decline" to classify, on receipt of an application for classification.

If, in fact, the Board is uncertain of their powers and statutory obligations, it would be appropriate for the OFLC to take any necessary action to become sufficiently informed to enable the provision of statutory services in an efficient and timely manner. It is inappropriate for the OFLC to require members of the public, i.e. their clients, to obtain a Court ruling to advise the Board of their powers in order to receive service, regardless that the OFLC has recently experienced significant cuts in government funding.

With regard to the Board's stated concern that acting on our application would give rise to a "significant risk" of contempt of court, we question the probability of a government agency being held in contempt of court as a result of carrying out statutory obligations. If this is, in fact, probable, it would seem that amendment to relevant legislation is warranted to enable the Board to carry out responsibilities assigned by Parliament without fear. We observe that prior to our application, the OFLC seemed not to be concerned in this regard, given statements attributed to the Acting Director of the OFLC and the Government Solicitor published in The Age on 27 March 1998 (copy attached).

It appears there are significant administrative, procedural and other problems within the OFLC and we see little likely benefit in repeatedly contacting the OFLC. In addition to our experience above, we note that the OFLC reported in their last Annual Report (1996/97) that a client survey had found that "Most significant concerns identified by clients were delays in the classification process resulting in poor turn- around times and price increases associated with the move by the OFLC towards full cost recovery." The Report did not state what steps, if any, would be taken to address the problem of delays in the classification process nor advise of a targeted turn-around time.

Although OFLC fees have been increased to cover full cost of services, the OFLC is the sole agency legislatively empowered to classify material for people seeking to comply with complementary enforcement legislation in most States and Territories. As such there is little, if any, incentive for the OFLC to provide a competent, client-focussed service. In essence, the OFLC can delay classification decisions, particularly those involving complex issues, for years by claiming a variety of novel reasons for delay and/or non-provision of service. There appears little that potential publishers or distributors can do to expedite the classification process without risk of increased delays in future.

In summary, we request your assistance in obtaining either:

the OFLC classification service for which we applied and paid over three months ago, or
an unequivocal written statement from the OFLC, or other relevant government authority, advising that Court judgments are exempt from classification and that public access to case law is not subject to classification/censorship legislation, supported by detailed, authoritative advice of the basis relied upon in arriving at such a conclusion.

We also suggest that a review of OFLC administrative processes and procedures be undertaken by an authority completely separate and genuinely independent of the OFLC, with a view to ensuring that the OFLC provides their mandatory services in a manner which is more obviously client focussed, efficient, and timely.

Yours faithfully

I Graham (Ms)
Secretary - Electronic Frontiers Australia Inc.

Go to: