Community Views - Whose Views?
Last Updated: 7 August 2000
This paper discusses the OFLC Review of Publications Classification Guidelines (undertaken during 1997-1999) that resulted in revised, considerably more restrictive, guidelines effective from 1 September 1999.
Information referenced herein was obtained by EFA under the Queensland Freedom of Information Act. Despite initial objections by the Office of Film and Literature Classification (OFLC) to the release of some information, the vast majority of documents identified by the Queensland Department of Equity and Fair Trading (which includes the Queensland censorship office) as being relevant to EFA's FOI application were released to EFA in March and June 2000. Documents released include briefing/recommendation papers provided to the Standing Committee of Attorneys-General - Censorship, extracts of Minutes of those meetings, and reports of the OFLC and its independent consultants (Professor Peter Sheehan and Dr Judith Bowey).
- Guidelines Review Process
- Public Submissions
- Community Views - Whose Views?
- Group and Individual Views
- OFLC Independent Consultant's Views
- OFLC Views
- National Co-operative Censorship Scheme or Lowest Common Denominator Approach?
Guidelines Review Process
- Late 1997:
- Draft initial revisions were prepared by the OFLC and circulated to "State and Territory Censorship officials and to all OFLC publications clients for initial comment". The OFLC claims these initial revisions were based on concerns previously raised by the industry, the OFLC Board and the OFLC Community Liaison officer, complaints received by the OFLC and the findings of "preliminary focus group research by the OFLC". (OFLC briefing paper to the Censorship Ministers' meeting of 15 April 1999).
- 18 April 1998:
- After further revising the draft guidelines, the OFLC issued these to some 1400 persons/groups and also called for public submissions via newspaper advertisements. The originally advertised period of 6 weeks for lodgement of submissions was subsequently extended by a month until the end of June 1998 (OFLC briefing paper to Ministers). It is doubtful that this extension of time was publicly announced/advertised.
- Jun - Dec 1998:
- The OFLC prepared an 85 page Analysis/Report on the public submissions and also made further revisions to the Guidelines.
- Jan - Feb 1999:
- An "independent consultant" - Professor Peter Sheehan, Vice Chancellor, Australian Catholic University and former Convenor of the Film Censorship Review Board - was commissioned by the OFLC. He provided a report and comments on the revised guidelines on 29 January 1999, met with the OFLC on 12 February 1999 and then provided a further report and recommendations on 19 February 1999.
- Professor Sheehan's comments on the OFLC Analysis/Report included:
"The Report that has been written is very comprehensive and objective in its summary of the submissions received. Very few could pick it up and fail to appreciate its detail, inclusiveness and scope. Paradoxically, however, these same features may product a significant problem for the Office. There is very little in the Report by way of interpretation to guide readers to an understanding of the rationale for the final set of Guidelines. The Report is statistical, quantitative and actuarial, but not interpretative, explanatory or argumentative. Yet the public will certainly want to know why some changes are made and others not, and what were the reasons that steered the final set of Guidelines. Many of those who submitted are clearly concerned about the communication of rationale, and the factual nature of the Report is likely to be misunderstood. The summary of changes made will help, but the Report itself needs to say more." (3206)
- The OFLC Report released under FOI appears to have been changed somewhat in accord with other comments by Professor Sheehan. However, revisions have not addressed Professor Sheehan's general comments above. These may or may not shed some light on why the OFLC Report was never made publicly available, as Professor Sheehan apparently expected, and why the OFLC objected to QDEFT's releasing the OFLC Report to EFA under FOI law. It may be that the OFLC was unable to revise the Report to provide an understanding of the rationale for the final set of guidelines because no justifiable rationale exists.
- Further information on Professor Sheehan's comments is provided below.
- Professor Sheehan's comments on the OFLC Analysis/Report included:
- Jan - Mar 1999:
- The OFLC made numerous further revisions to the Guidelines, many of which were recommended by Professor Sheehan (see 3190 and 3200 for details of recommendations).
- 26 March 1999:
- Another independent consultant to the OFLC, Associate Professor Judith Bowey, School of Psychology, University of Queensland, provided the OFLC with her comments and recommendations regarding the language used in the Guidelines.
- The OFLC then made further revisions to the Guidelines.
- The OFLC then made further revisions to the Guidelines.
- 15 April 1999:
- The draft guidelines were presented to the Censorship Ministers' meeting for consideration. The OFLC briefing paper to that meeting states:
"The final draft revisions contain significant differences from the public exposure draft commented upon by the industry. In particular, criteria relating to covers and contents in 'Unrestricted' classification are significantly stricter than those set out in the draft. The revised criteria relating to nudity, violence and adult themes exclude descriptions and depictions that previously would have been permitted. These changes result from Professor Sheehan's recommendations following his consideration of public submissions and have not been released for further comment by industry."
- Similar comments relative to increased restrictions were made by Attorney General Darryl Williams at the meeting (see 3257).
- The Ministers decided to issue the revised guidelines to the industry, but not to members of the public, for a further brief period of consultation.
- Similar comments relative to increased restrictions were made by Attorney General Darryl Williams at the meeting (see 3257).
- 7 May 1999:
- The OFLC wrote to industry members, enclosing revised guidelines, inviting them to an industry consultation meeting on 26/27 May and requesting any comments by 1 June 1999.
- 22-23 July 1999:
- The guidelines were approved at the July Censorship Ministers' meeting, subject to one amendment further restricting nudity on covers, as recommended to the meeting by OFLC officers (3317).
- The Ministers' meeting was also advised by the OFLC in their briefing paper that:
"...a legal opinion has been obtained from the Office of General Counsel confirming the legality of Ministers agreeing to introduce classification guidelines under the Act on a specified date, rather than the guidelines necessarily coming into effect on the date of agreement."
- (The above information was deleted from one copy of the OFLC briefing paper (3317) although included in another copy of the same paper (3268). The legal opinion was not provided under FOI and is probably contained in documents denied (3305-3310) on grounds of being fully exempt under Sec 43(1) of the Qld FOI Act).
- The Agenda papers for the July Censorship Ministers' meeting included a letter from the SA Attorney General (dated 5 May 1999) to the OFLC Director expressing his concerns that material promoting suicide may not be refused classification (RC) and that material regarding legal trials of proscribed drugs may be classified RC. The OFLC Director's response was also provided to the meeting, indicating the matters were not of issue in terms of the guidelines but had nevertheless been referred "to Officers for consideration at the next Ministers meeting on 22-23 July 1999...".
- The Ministers' meeting was also advised by the OFLC in their briefing paper that:
- Jul - Aug 1999:
- At some point between the Censorship Ministers' July meeting and new guidelines becoming effective on 1 September 1999, an alteration to the Glossary definition of drugs was made. This deleted reference to Schedule 8 of Regulation 4A (1A)(e) of the Customs (Prohibited Imports) Regulations (leaving the reference to Schedule 4).
- 1 September 1999:
- New guidelines became effective.
Number and Sources of Submissions
The OFLC distributed over 1,400 information packages directly to persons and organisation they considered may wish to make a submission, as well as advertising in national newspapers. Despite this, they received merely 147 submissions.
The OFLC Analysis states (p28):
"147 formal submissions were received. 32 of these submissions were the result of an initial direct mail out of the package to community and interest groups, concerned individuals, all OFLC publications clients and all Federal, State and Territory politicians."and (p25):
"There were 3 newsgroup emails which were not formal submissions. There was also a second submission from one person which has been attached to the first submission but was initially filed separately. Therefore the original figure of 151 has become 147."
Given that over 1200 people and groups who received the package did not respond, it could be concluded they desired no change to the draft guidelines. Nevertheless, on the basis of a mere 147 submissions (not all of which called for increased censorship in any case) the draft guidelines were made more restrictive.
The following information regarding public submissions to the review is deducible from the OFLC Analysis/Report and Professor Sheehan's reports:
19 Community Groups:
- 8 (42%) were directly contacted by the OFLC (response rate: 13% of 62 contacted)
- 8 (42%) were clearly identifiable as religious groups and 7 of the 8 claimed a link between 'porn' and social ills. (See Professor Sheehan's report for further information in the latter regard).
- 4 (21%) were women's groups (excluding 2 clearly religious women's groups included above)
- 7 (37%) were special interest groups
- 4 (21%) were part of letter writing groups (Salt Shakers, Endeavour Forum, Henty Evening Branch CWA, The Action Awareness Group)
- 3 (16%) demonstrated at least one misunderstanding of the publications guidelines (for example, Salt Shakers and the Endeavour Forum.)
- These groups were:
- Religious groups:
- Nanango Christian Faith Centre 
- Australian Christian Coalition 
- Presbyterian Women's Association of NSW  (Almost identical to, and written by same person as, Sub 111- National Council of Women)
- NSW Council of Churches 
- Catholic Women's League 
- Festival of Light 
- The Endeavour Forum  (Salt Shakers/Endeavour Forum related submissions)
- Salt Shakers  (Salt Shakers/Endeavour Forum related submissions)
- Womens' groups:
- Country Women's Association of WA 
- National Council of Women of Aust  (Almost identical to, and written by same person as, Sub 35 - Presbyterian Women's Association of NSW)
- Women's Action Alliance 
- Henty Evening Branch CWA  (Wagga Wagga area related submissions)
- Other special interest groups:
- Electronic Frontiers Australia 
- Australian Library Information Assoc. 
- Rabelais Editors Defence Committee 
- Un-named anti-heavy metal music group 
- Young Media Australia 
- Australian Society of Authors 
- The Action Awareness Group  (Wagga Wagga area related submissions)
- Religious groups:
- 16 (15%) were complainants to the OFLC regarding publications during the prior 2 years who were directly contacted by the OFLC (response rate: 4.5% of 354 contacted).
- 94 (86%) were readily identifiable as pro-censorship
- 43 (39.5%) were identifiable as being married
- 30 (27.5%) were identifiable as having children
- Three occupational categories recurred among this group: teachers (primary school), counsellors, and priests or religious ministers (see Professor Sheehan's report in this regard)
- 42 (39%) were part of 3 letter writing groups (excluding 6 petitions).
- 19 (17.5%) referred only to concerns with aspects of television program classification (mostly part of a letter writing group from Wagga Wagga), i.e. irrelevant to publications classifications
- 25 (23%) demonstrated at least one misunderstanding of the publications guidelines
- Part of letter writing groups (3 groups comprising a total of 52 submissions).
- 6 (54%) were directly contacted by the OFLC (response rate: 6% of 105 contacted).
- 9 industry members
- Horwitz Publishing (Penthouse) 
- Australian Sun & Health 
- Independent Print Media Group 
- Australian Consolidated Press 
- Quick American Archives 
- Inn Press 
- Queensland Pride 
- JT Publishing (Hustler) 
- Van Patten Publishing 
- 2 industry bodies
- Eros Foundation 
- Telephone Information Services Standards Council 
3 Politicians and Government Bodies:
- 3 directly contacted by the OFLC (response rate 0.3% of 843 contacted)
- 2 politicians
- The Hon. Dr Marlene Goldsmith, MLC, NSW 
- Mr David Perrin, MP, Member for Bulleen 
- 1 government body
- The South Australian Classification Council 
Letter Writing Campaigns
The OFLC Analysis of submissions remarks:
"Of the total  submissions, 52 (over one third) seemed to form part of letter writing groups ... The related submissions are able to be divided into 3 distinct groups..."
"...31 submissions from the Wagga Wagga region of NSW who seem to have misunderstood the publications review and commented mainly on their concern over sex and violence on television. These submitters seemed to be responding to an article in the local newspaper calling for people to write to the review with their views about sex and violence in the media". [2 groups, 24 individuals, 5 petitions]
7 submissions "from the Nambucca Heads region (but also and [sic] other areas). They share common concerns and are of the view that the guidelines are not strict enough. It was not clear where these submissions originated and what they were responding to". [7 individuals]
14 submissions "associated with the Christian group, Salt Shakers and are also critical of the guidelines for not being strict enough. They advocate another level of classification and the removal of most classification elements from the 'Unrestricted' category. The Salt Shakers group is situated in the same area of Victoria as many of the similarly worded submissions in this group. Another Christian group, the Endeavour Forum (submission no 120), shares the same concerns". [2 groups, 11 individuals, 1 petition]
Representativeness of Sample (Submitters)
The OFLC's "independent consultant", Professor Peter Sheehan, remarked on the probable unrepresentativeness of the sample (submitters) in terms of the Australian community at large in his report. He said:
"...certain groups could be having a disproportionately large impact on the way community attitudes are being perceived by others. Less than 10% of the Industry groups who were contacted responded. Less than 1% of the government departments and parliamentarians contact responded (the figure is 0.3%). However, 32% of the community groups contacted responded (the figure is a combination of the number of community interest and church groups contacted.) Of the community interest groups, at least 40% are clearly identifiable as religious groups. Of the individuals sent submission packages, approximately 30% responded. This figure is similar to the percentage of community interest groups which responded. However, due to the fact that the individuals selected for inclusion in the study are the people who have contacted the OFLC before (354 submission packages were sent to individuals who had previously contacted the OFLC), they are not representative sample of the community - these people are likely to be those who have had specific concerns that they have raised with the OFLC in the past ...
Of the individuals who did make a submission, 94 (86%) are readily identifiable as pro-censorship, 43 (39.5%) are identifiable as being married and 30 (27%), are identifiable as having children. A possible cause for the views taken by this group may be as a result of concern for their children. It should be noted that these figures are not absolute - that is, there may be more people in the sample who are married or have children, and they simply may not have specifically mentioned this fact in their submissions. It does, however, raise the issue of how many unmarried people contributed submissions and how many people who do not have children responded. To the extent that these groups did not make submissions, the sample might be said to be unrepresentative of community opinion. It might also be noted that there are three occupational categories that seem to recur amongst this group: they are teachers, (primary school), counsellors, and priests or religious ministers." (3199 p.8, and 3206-3207 p.7-8).
Of the 147 submissions received by the OFLC (despite over 1400 packages inviting comments being issued as well as newspaper advertisements):
- 35% were part of 3 localised letter writing campaigns (Wagga Wagga, Nambucca Heads and Melbourne Metropolitan)
- 64% (86% of individuals) were readily identifiable as pro-censorship and three occupational categories seemed to recur amongst this group: teachers, (primary school), counsellors, and priests or religious ministers.
- 5.4% (42% of the groups) were readily identifiable as religious groups
- 19% demonstrated at least one misunderstanding of the guidelines
(Percentages listed above are not mutually exclusive, some submissions may fall into more than one category).
Community Views - Whose Views?
Group and Individual Views
Legitimate questions about the representativeness of submitters - compared to the Australian community at large - may well be raised, given that people who are satisfied with the status quo and do not seek increased censorship are highly unlikely, in the normal course of events, to write to the OFLC saying they are satisfied with the existing situation and/or proposals. It would seem however that neither the OFLC, nor its independent consultant, nor the Censorship Ministers take this situation into account in deciding on changes to censorship policy.
Throughout the OFLC Report/Analysis of submissions, the OFLC notes the number of submissions in favour of, or against, a particular matter. This appears to be an attempt to justify increased censorship (notwithstanding that only 147 submissions were received) since in most cases the number quoted in favour of increased censorship is higher than that against. However, an analysis of the footnotes of the OFLC Report (which include submission numbers and the names of some submitters) sheds doubt on the relevance of the numbers quoted in context of the Australian community at large.
For example, the OFLC Analysis states (p.34):
"Reactions were divided between those who ... endorsed [the Guidelines] as an improvement on the last Guidelines or thought they were adequate (9) 106; those who believed they had been relaxed and had allowed standards to drop (13) 107; and those who felt they had become much stricter and encroached upon freedom of expression (5) 108."The relevant footnotes (p.34) state:
- "106 Guidelines good/adequate"
- 9 submissions are listed, all of these are un-named individuals who were not part of one of the three letter writing campaigns.
- "107 Guidelines not strict enough"
- 13 submissions are listed, 11 of these were part of one of the three letter writing campaigns and 2 were from un-named individuals not part of those campaigns.
- "108 Guidelines too restrictive"
- 5 submissions are listed, comprising EFA and 4 un-named individuals who were not part of one of the three letter writing campaigns.
Although the OFLC identified the letter writing campaigns, it is not clear from their Report the weight that they accorded this type of submission. Nevertheless, the simplistic reporting of numbers in the OFLC Report appears to serve to claim wide community support for increased censorship (unless analysis of the footnotes is undertaken), although over one third of the submissions received came from three regions where letter writing campaigns were organised. These submission numbers feature in most footnotes relative to calls for increased censorship.
As noted earlier herein, 108 of the 147 submissions were from individuals (including 42 individuals who were part of letter writing campaigns). 94 (86%) of the individuals were clearly identifiable as being pro-censorship. Professor Sheehan remarked in his report that:
"A vast majority of the individuals who submitted said that there is a connection between sex, violence and the perceived social ills of this decade. ... The reasons for given for this existence of this link were very similar and were not very convincing as arguments. They tended to take the form of a general statement that presumed that everyone accepted the link. Another type of argument was of the form that serial killers and rapists often admit to using this material before committing their crimes. Persons making these arguments have ignored the fact that these people were probably not capable of coping socially, and that there are many others who read these publications who are not murderers or rapists. The nature of the link is very complex and social scientists do differ among themselves on how to best define it." (3207 p.8)
Wrapping and Sealing of Publications
'Unrestricted' Publications - sealing in clear wrappers
The extent to which the OFLC engages in enforcing the views of a small minority of the population on the wider community appears evident in their proposal that Unrestricted publications be sealed in clear wrappers. The OFLC recommended, in their briefing paper (3058) to the Censorship Ministers' meeting of 15 April 1999, that:
"...consideration should also be given to the suggestion raised by some submitters that 'Unrestricted' material be sold in sealed wrappers. ... Accordingly, it may be desirable to provide the Board with a power to classify a publication as 'Unrestricted' on the condition that it is to be sold in a sealed clear wrapper. This would require the amendment of Commonwealth, State and Territory legislation. Draft amending provisions for this purpose have been prepared for consideration and are in Attachment G."
While the OFLC states "some submitters" suggested 'Unrestricted' publications be sold in a sealed clear wrapper, the OFLC's own Analysis of the public submissions indicates this was suggested, if at all, in only 5 of the 147 submissions. Furthermore, the matter is not mentioned in Professor Sheehan's report which could be expected if a significant number of submissions had raised this matter.
Although wrapping of publications is mentioned a number of times in the OFLC Analysis, the concerns mentioned refer to public display of covers and suggest sealing magazines in opaque sealed wrappers.
The OFLC Analysis states (p.40) that:
"There were 3 calls for Unrestricted elements on covers to be sealed in opaque wrappers."and (p.57) that there were 2 calls for:
Submission Nos: 44, 45, 68
[2 individuals believed by the OFLC to be part of the Salt Shakers/Endeavour Forum letter writing campaign, and 1 other.]
"magazines [with covers showing nudity] be sold in an opaque or plastic wrapper".
Submissions Nos. 135, 142
[1 individual believed by the OFLC to be part of the Salt Shakers/Endeavour Forum letter writing campaign, and 1 other].
Sealing 'Unrestricted' or any other magazines in a clear wrapper, as recommended by the OFLC, will obviously not address concerns about what can be seen on covers on public display. It serves only a purpose of preventing children and other persons looking at the contents inside a magazine while in a shop. According to the OFLC's own Analysis of submissions (p.76), only 5 of the 147 submitters expressed concern in this regard:
"5 submissions expressed concern that the general public, families and especially children have access to sexually oriented 'Unrestricted' magazines at newsagencies, petrol stations or milk bars"The OFLC Analysis does not indicate that these submitters recommended sealing in clear wrappers. It does however state (p.75) that:
Submission Nos: 26, 43, 100, 124, 135
[3 individuals believed by the OFLC to be part of the Salt Shakers/Endeavour Forum letter writing campaign, and 2 others.]
"Some submissions suggested that sexually oriented material either be prohibited, restricted or sealed in opaque covers to prevent such material being seen on public display (6) . Moving magazines onto higher shelves in retail outlets where children would not be able to get hold of them  and placing sexually oriented magazines on 'blinder racks'  were also suggested."In summary, the OFLC Analysis does not provide any indication of the source of the OFLC's recommendation to seal some 'Unrestricted' publications in clear wrappers, nor the reason for the OFLC's recommendation, other than that less than 4% percent of submitters raised concerns regarding children's access to the content between the covers of publications in shops.
352: Submissions No: 13, 24, 47, 55, 74, 129 [Young Media Australia, The Hon Dr Marlene Goldsmith, MLC, NSW and 4 others]
353: Submissions No: 35 [Australian Sun & Health Magazine]
354: Submissions No: 43, 55 [1 individual believed by the OFLC to be participant in the Salt Shakers/Endeavour Forum letter writing campaign and The Hon Dr Marlene Goldsmith, MLC, NSW]
However, papers relative to the Censorship Ministers' meeting of 15 April 1999 may shed further light on this matter. See section National Co-operative Censorship Scheme or Lowest Common Denominator? below.
Category 1 Restricted Publications - sealing in opaque wrappersThe OFLC also recommended that some publications be granted a Category 1 Restricted classification on condition that the publication not be sold etc except when sealed in an opaque wrapper. This recommendation appears to have originated with the OFLC and/or the publishing industry due to an anomaly in the pre-existing law, rather than because of views expressed by submitters to the guidelines review.
While some submissions did express concerns about covers and contents of Category 1 Restricted publications, most of these submitters clearly did not understand the existing law and/or guidelines. It is questionable whether such submitters' calls for increased censorship in general were in any way warranted, given their evident lack of understanding about existing regulations. For example:
OFLC Analysis, p.44:
7 submissions recommended that 'Category 1 - Restricted' magazines not be sold to people under 18.It was already illegal to sell 'Category 1 - Restricted' magazines to people under 18.
Submission Nos: 34, 58, 64, 119, 120, 131, 138
[Salt Shakers, the Endeavour Forum, 4 individuals believed by the OFLC to be participants in those two organisations' letter writing campaign and Mr David Perrin MP, Member for Bulleen]
OFLC Analysis, p.16:
5 submissions recommended that all Category 1 Restricted magazines be sealed in plastic wrappers'Category 1 Restricted' magazines were already required to be in sealed plastic wrappers, since at least 1992.
Submission Nos: 34, 58, 64, 101, 119
[3 individuals believed by the OFLC to be participants in the Salt Shakers/Endeavour Forum letter writing campaign, Mr David Perrin MP, Member for Bulleen and 1 other.]
OFLC Analysis, p.16:
"4 other submissions recommended that all Category 1 magazines be sealed in opaque wrappers."The conditions for covers of 'Category 1 Restricted' and 'Unrestricted' magazines were then and still are identical. Thus, it is nonsensical to require 'Category 1 Restricted' magazines to be sealed in opaque covers but not 'Unrestricted' magazines. Moreover, since the four submissions calling for opaque wrapping of Category 1 magazines came from Victoria where the State Government had already introduced legislation to that effect, there is clearly no reason for such a provision to be introduced on nation-wide basis (even if a call from a tiny percentage of of the adult population could be considered to warrant such, and if the same material could not be published on covers of unwrapped Unrestricted publications anyway).
Submission Nos: 126, 131, 138, 94
[Salt Shakers, 2 individuals believed by the OFLC to be participants in the Salt Shakers/Endeavour Forum letter writing campaign and 1 other.]
"These 4 submissions are from Victoria where a [then] recent amendment to the Victorian Classification...Act now means that all 'Category 1 - Restricted' material is required to be sold in sealed opaque packages."
The OFLC evidently recognised that sealing solely Category 1 Restricted publications in opaque wrappers was pointless and did not act on such recommendations from the 4 (of 147) submitters requesting same, at least two of whom clearly misunderstood the existing laws in any case. The OFLC did, however, recommend that some publications be required to sealed in an opaque wrapper, but this was for a different reason.
The existing law required that publications with covers unsuitable for general public display be classified Category 2 Restricted (including when the internal contents of the publication were suitable for an Unrestricted or Category 1 Restricted classification) so that these publications could not be legally sold except from premises restricted to adults. Thus, publications with internal contents suitable for sale from ordinary premises could not be sold therefrom because of the cover. This situation occurred, for example, in the case of publications produced overseas without regard for Australia's censorship laws.
The OFLC proposed, in their draft revised guidelines submitted to the Censorship Ministers' meeting of 15 April 1999, that:
"A publication with a cover considered unsuitable for public display that does not in itself warrant 'Category 2 - Restricted' or 'RC classification may be classified 'Category 1 - Restricted' on the basis that the publication is sealed in a plain opaque wrapper."The OFLC briefing paper (3059) to the same Ministers' meeting pointed out that:
"However the Board has no legislative power to impose such a condition upon a 'Category 1 Restricted' classification ... This will require the amendment of Commonwealth, State and Territory legislation. Draft amending provisions for this purpose have been prepared for consideration and are in Attachment G."The amendments proposed in Attachment G (of 15 April 1999) are almost identical (apart from minor change to phrasing) to the relevant amendment contained in the Classification (Publications, Films and Computer Games) Amendment Bill (No. 2) 1999 which was tabled in Parliament in December 1999, i.e.:
18 After section 13The final publications classification guidelines effective from 1 September 1999 include provision (2) above regarding opaque wrappers (on page 8 and 13, see actual text earlier herein). However, as at July 2000, relevant legislation has not been amended to empower the Classification Board to impose such a condition, due to opposition of the National Party to the NVE category provisions in the Bill. Thus, either the OFLC Classification Board has been exceeding its powers since September 1999, or information in the guidelines publicly issued in September 1999 is wrong.
13A Conditions of certain classifications for publications
(1) The Board may, if it classifies a publication Unrestricted, impose a condition that it not be sold, displayed for sale or delivered unless it is contained in a sealed package.
(2) The Board may, if it classifies a publication Category 1 restricted, impose a condition that it not be sold, displayed for sale or delivered unless it is contained in a sealed package made of plain, opaque material.
OFLC Independent Consultant's ViewsWhile recognising the probable unrepresentativeness of the submitters, Professor Sheehan nevertheless recommended increased restrictions - perhaps because these suited his personal views:
"The new set (of Guidelines) is undoubtedly more conservative. This reflects the tenor of most of the submitted material, and even considering the unrepresentativeness of the sample, I agree with its thrust". (3192 and 3056).Professor Sheehan also offered numerous suggestions apparently with a view to clarifying the meaning of the guidelines. Some of these included:
"Define the term 'promote' [re RC material] or drop it from the Guidelines". (3195) [Not changed]Full details of Professor Sheehan's comments and recommendations are available in his reports (29 January 1999 and 19 February 1999).
"Definition of nudity appears too conservative. What is the problem with 'rear above waist visuals?'". (3195) [Changed]
"What does the term 'other fantasies' mean" in RC criteria. (3195) [Not changed]
The OFLC states that "significantly stricter" guidelines "result from Professor Sheehan's recommendations".
OFLC approval of depictions of women akin to genital mutilationOFLC officers recommended to the Censorship Ministers meeting of 15 April 1999 that Ministers ignore the industry's request that natural nudity be allowed to be depicted, evidently preferring to allow depictions that misrepresent the female form, akin to genital mutilation:
"Industry sought clarification on a number of issues including...the nudity criteria in the 'Unrestricted' category. Horwitz Publications argued strongly that 'discreet nudity' in the 'Unrestricted' classification should not preclude naturalistic labial detail as the alteration of photographic images to remove such detail... misrepresents the female form and is akin to genital mutilation. Officers do not support this suggestion."The reason for the OFLC's opposition to this suggestion is not evident in the briefing paper nor in other documents released. However, some information regarding the OFLC's position has since been published in the media:
(Item 4, Agenda Papers for Standing Committee of Attorneys General - Censorship, 15 April 1999, p.3)
"ACP Extra spokeswoman Kylie Potter can't explain why it's okay to show an unadulterated penis. But she says the OFLC claims the public finds female genitalia offensive unless it 'looks clean and tidy'. Potter tells us the OFLC calls it a 'healed crease' when technology is used to tidy up photographs for public consumption."It is not clear how the OFLC knows what they reportedly claim the public finds offensive. While the OFLC produced an extremely detailed Analysis (85 pages) of public submissions to the publications guidelines review, detailing specific points raised in submissions together with the numbers of submissions referring to each matter, no mention is made of portrayals of female genitalia.
(Melba column, The Australian, 13 April 2000)
An article in the Sydney Morning Herald on 6 April 2000 reported:
'OFLC director Mr Simon Webb acknowledged there was a degree of "subjectivity" involved in classifying magazines under the office's guidelines. Publishers say it is this subjectivity and ambiguous terminology in the censor's guidelines that is forcing them to present a "false image of the naked female form".According to the industry, however, the alternative way to meet the OFLC's requirements is to avoid depicting women posed in natural positions, eg. in a normal standing position.
"Daily, we have to use technology to smooth, erase and ensure no member of the public will be presented with anything resembling real female genitalia," says Mr Brad Boxall, publisher of ACP Extra, which publishes The Picture and People.
"In the past it has been industry practice to do this [digitally manipulate images]. The magazines are putting their models into these poses, then to say they are forced to digitally remove labia by us is a pure nonsense," Mr Webb said.
"Digitally modifying images of women is only one way to go to fit into the classification, but not one being enforced by us." '
(Porn rules too strict for the noughties, Sydney Morning Herald, 6 April 2000)
The Qld Classification Officer's report on an industry consultation meeting states:
"[Industry] very concerned about discreet nudity - wanted it changed to natural nudity as 85% of women show some labia naturally."The matter was also mentioned in the Eros Foundation's submission to the OFLC publications guidelines review:
(Report titled "Outcomes - Consultation with Industry - Sydney - 26/27 May 1999")
"... medical research shows that only a small percentage of mature women (3%) have no visible evidence of inner labial lips when viewed from a normal standing position or other non sexual pose. In prepubescent females and those who have not had children, the % rises considerably."
OFLC recommendation that its own powers be increasedHistorically, it has been claimed that the Commonwealth's role is solely that of classification while enforcement of censorship is the role of the States and Territories. However, in the process of revising the publications guidelines, the OFLC proposed to Censorship Ministers that the OFLC be given increased powers in relation to enforcement of censorship law.
The OFLC proposed that it be given increased powers to:
- require (some/all) Unrestricted publications to be sealed in clear wrappers
- require some Category 1 Restricted publications to be sealed in opaque wrappers.
As detailed in the section titled Wrapping and Sealing, the OFLC's justification for these proposals is not evident from the OFLC's own analysis of public submissions.
Empowering the OFLC with an enforcement role is likely to result in a nation-wide lowest common denominator approach.
National Co-operative Censorship Scheme or Lowest Common Denominator Approach?
While much is heard from the OFLC, politicians, etc, about Australia's "national co-operative" censorship/classification scheme, there is little evidence that such claims are factual.
Although it is claimed that classification guidelines cannot be changed without unanimous approval of Commonwealth, State and Territory Censorship Ministers, no such requirement applies to revisions to the Commonwealth Classification Act in general. The Commonwealth may enact changes to the Commonwealth Classification Act that impact on States and Territories, and their citizens, whether or not States/Territories agree to the changes.
Jurisdictions not in agreement are over-ridden by Commonwealth law and are left with the options of either accepting the majority decision of other jurisdictions, or amending their own State/Territory censorship enforcement law in a manner no longer complementary to Commonwealth law. It is difficult to see how this situation meets the common interpretation of a "co-operative" scheme, particularly when States/Territories desiring non-unanimous changes regarding enforcement issues are empowered to change their own laws without impacting on those who consider that status quo satisfactory.
There are indications that a lowest common denominator approach, relative to State/Territory policy, is being implemented in Commonwealth law. For example, in 1999 Queensland objected to changes to Commonwealth law granting the OFLC increased powers concerning enforcement issues but was over-ruled.
As discussed above, the OFLC Analysis of public submissions indicates no legitimate grounds for their recommendation to Censorship Ministers that the OFLC be empowered to require Unrestricted publications to be sealed in clear wrappers. Even if there had been evidence of wide community support for this proposal (which there was not), it is an enforcement issue able to be dealt with in State/Territory legislation of jurisdictions wishing to enforce such a condition of sale.
It appears, however, that the OFLC has sought to extend Western Australian government policy to all other jurisdictions. The OFLC briefing paper to the Censorship Ministers' meeting of April 1999 comments:
"In Western Australia a number of major publishers of 'Unrestricted' material  have agreed to distribute the 'Unrestricted' versions of their magazines in sealed wrappers. In this way young children are prevented from accessing without purchasing material which is not recommended for them."
3: "Including the publishers of the 'Unrestricted' versions of 'Hustler' magazine [JT Publishing] and 'Penthouse' magazine [Horwitz]".
The OFLC's definition of "agreed" seems questionable. Once legislation is enacted publishers have no choice but to "agree" to government mandated conditions of sale. Moreover, in 1999, industry objected to this condition being mandated nation-wide.
The Minutes of the April 1999 Censorship Ministers' meeting state:
"Mr Williams [Comm. A-G] supported the proposal to provide the Board with the power to require certain publications to be sold in opaque and/or sealed wrappers, noting that some sections of the industry could be expected to support such a change..." (3257)
However, this expectation seems to have been overly optimistic. According to a report prepared by the Qld Classifications Officer on the OFLC's May 1999 industry consultation meeting:
"All except Penthouse opposed sealed wrapping." (3341)
The OFLC's proposal to seal 'Unrestricted' publications in clear wrappings was opposed by the Queensland Minister, as recorded in the minutes of the April 1999 Censorship Minister's meeting:
"Ms Spence [Qld Censorship Minister] stated that Queensland agreed with the tightening of the guidelines and to the introduction of consumer advice labelling for the 'Unrestricted' category. However, on this basis she did not see as necessary the introduction of new wrapping requirements. Ms Spence acknowledged that the existing prohibition on the sale of restricted publications in Queensland placed pressure on the 'Unrestricted' category, stating that this situation would not change at this stage." (3257)
Queensland's opposition was confirmed at the July 1999 Ministers' meeting, minutes of which state:
"Mr Cannavan (Queensland) suggested that the bagging of 'Unrestricted' publications is an enforcement issue rather than a classification issue which would not be supported by Queensland.
Mr Williams noted that Queensland's position in relation to this matter should not prevent other jurisdictions from agreeing to the proposal.
The motion was passed with Queensland opposing." (3326)
Such an amendment is included in the Classification (Publications, Films and Computer Games) Amendment Bill (No. 2) 1999 tabled in Federal Parliament in December 1999 (the notorious NVE Bill). This will adversely affect Queensland (and other) consumers of 'Unrestricted' publications ability to assess the contents of publications prior to purchase, since basis of choice will be limited to advertising on covers, notwithstanding that the Queensland Government opposed the change.
The change to Commonwealth law is not necessary, since States and Territories are free to place whatever restrictions they wish on sale and distribution of publications in their own "complementary" enforcement legislation. Evidently, States and Territories who wish to enforce this restriction on sale are too lazy to amend their own laws (or doubtful of community support for same in their own jurisdiction) and hence seek to enforce this requirement at Commonwealth level as part of the claimed "national co-operative" scheme.
In no way can it said that the 1999 Publications Classification Guidelines represent the views of the Australian community at large. There is no evidence whatsoever that the views of the vast majority of the population were received by the OFLC. This does not, however, excuse policy based on the views of some 0.002% of Australian adults.
Increasing censorship in Australia is apparently being driven principally by three matters:
- Officers of the Office of Film and Literature Classification being either overly harassed by a small number of especially censorious politicians and/or incapable of recognising that less than 147 submissions from members of censorious minority groups motivated to submit comments to government inquiries, primarily members of the Radical Religious Right (RRR), do not represent the views of Australian community at large;
- Ongoing use by the OFLC of an "independent consultant", an ex member of the Film Censorship Review Board, with a professed view that government attempts to protect children trump adults' rights to read, see and hear what they want;
- A widespread attitude of "She'll be right, mate - government will wake up to widespread community views without hearing my comments."
Encroaching censorship in Australia will not cease until or unless a significantly increased number of persons, who are happy with the censorship status quo, or desire less restriction, put pen to paper to the OFLC and their parliamentary representatives. Moaning about it in the pub, on street corners or on Net mailing lists and in newsgroups will not change the direction of censorship policy. Nor will relying on one or more organisations/groups to submit bulk views.
As at August 2000, the OFLC is preparing to call for public submissions in relation to their review of the Classification Guidelines for Computer Games.
Date: 7 August 2000