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28 May 1998
Electronic Frontiers Australia Inc. (EFA) submits the following comments relative to the Office of Film and Literature Classification (OFLC)'s Review of Classification Guidelines for Publications and associated public exposure draft of proposed revisions.
EFA is a non-profit national organisation formed in 1994 to define, promote and defend the civil liberties of users and operators of networked systems. Whilst EFA's interests lie principally in the area of telecommunications, proposed changes to the Guidelines for Classification of Publications are of considerable concern to EFA. This concern arises, in part, due to Federal and State/Territory Government proposals to attempt to apply restrictions relative to off-line information to on-line information and, also, existing classification/censorship legislation in some States/Territories, which is specifically applicable to on-line content, and which refers to OFLC classifications in that regard.
However, on-line purchasing of books and (perhaps) magazines would defeat the classification system, and the present regime cannot be enforced without a raft of undesirable e-commerce regulations. The OFLC has no plausible role in classification of other than domestic industries such as public performance, video hire and cinemas since the global marketplace makes home entertainment media available direct from overseas sources.
The draft Guidelines indicate that a considerably more restrictive approach, affecting the freedom of adults to read, hear and see what they want, is to be implemented. It is disturbing that no justification for increased restrictions have been provided in the public exposure draft, particularly given that the last two Annual Reports of the Office of Film and Literature Classification (OFLC) advise that the number of complaints received regarding publications is negligible.
EFA notes that the OFLC is making important, quasi-judicial decisions, and that the composition of the Review Board has changed significantly.
EFA opposes increased restrictions on the availability of information, either off-line or on-line, and is of the view that existing restrictions go well beyond restricting, and/or banning, information that may cause outrage or extreme disgust to most reasonable adults. EFA also questions why adults are not allowed to be shocked or offended. As attributed to Janet Strickland in the Sydney Morning Herald, 6 July 1996: "These are emotions we are not allowed to feel and yet they are very useful emotions. They help to create a value system. If we have nothing that makes us feel shocked, how do we know what our value system is?"
Detailed comments on the public exposure draft are provided below.
There is conflict between the definition of a "submittable publication" in Section 5 of the Act, and the proposed new criteria to be incorporated in the Guidelines for assessing material permissible in the 'Unrestricted' category. This is likely to cause confusion to parents as to which material is most suitable for minors. It also has the potential to place publishers at risk of prosecution under State and Territory enforcement legislation for reasons not intended at the time such legislation was developed.
The draft Guidelines (Page 6) state that:
"State and Territory laws require that 'submittable publications' (those likely to warrant restriction to adults) must be submitted to the Board for classification before they can legally be sold, distributed or advertised.
The above statement can be interpreted to mean that publications which are submittable are those likely to warrant restriction to adults because they are likely to be unsuitable for minors. However, that is not the meaning of "submittable publication" in the Act, the definition of which follows the above paragraph on Page 6 of the draft Guidelines:
Under section 5 of the Classification Act a "submittable publication" is defined as:
...an unclassified publication that, having regard to the Code and the classification guidelines to the extent that they relate to publications, contains depictions or descriptions of sexual matters, drugs, nudity or violence that are likely to cause offence to a reasonable adult to the extent that the publication should not be sold as an unrestricted publication."
The definition of "submittable publication" clearly states that these are publications that contain material which "is likely to cause offence to a reasonable adult to the extent that the publication should not be sold as an unrestricted publication".
The draft Guidelines for the 'Unrestricted' category (Page 7, Para 1) state:
"Publications classified 'Unrestricted' will not be unsuitable for minors, but some publications will not be recommended for children under fifteen."
In other words, material considered unsuitable for minors of 15 to 17 years of age is not permitted in the 'Unrestricted' category (although this category may include material not recommended for those under 15 years of age). This is a very different issue to that of material which is submittable under the Act because it is likely to cause offence to a reasonable adult.
Nevertheless, under the current Guidelines content identified as warranting a Restricted (or Refused) classification is solely that involving certain types of depictions or descriptions of sexual matters, [prohibited] drugs, nudity or violence. This is in accordance with the definition of a "submittable publication". It may be reasonable to assume, with regard to those topics, that material deemed unsuitable for minors of 15-17 years of age may cause offence to some adults.
However, the draft Guidelines propose a range of new criteria for assessing the classification of status of publications including "Adult Themes", "Coarse Language" and "[non-prohibited] Drug Use". Publications containing content which deals with those elements in a manner deemed unsuitable for minors will receive a Restricted classification. As such, they will be illegal to sell to minors and illegal to sell to adults other than in a sealed wrapper.
Publications which are likely to be given a Restricted classification as a result of the new criteria in the draft Guidelines are not obviously submittable under the Act, as they do not contains depictions or descriptions of sexual matters, drugs, nudity or violence that are likely to cause offence to a reasonable adult. The intent of the inclusion of new criteria in the Guidelines is therefore unclear. It suggests, however, an intent to require that publications which may not be suitable for persons of 15 to 17 years of age because, for example, they include unsuitable treatment of "Adult Themes", be submitted for classification although there is no requirement under the Act that they be submitted.
The proposed incorporation of new criteria therefore has the potential to cause confusion to parents, guardians and educators, as to which publications are most suitable for minors aged 15-17 years of age. Publications which are classified 'Unrestricted' will, according to the draft Guidelines, be suitable for that age group. However, many publications which have not been classified (because they are not "submittable publications"), but which deal with eg. "Adult Themes" in a manner which would warrant a 'Restricted' classification, will remain legally able to be sold to minors although they will be less suitable for minors of 15-17 years of age than publications which have been classified 'Unrestricted'.
This confusing situation is undesirable. The current Guidelines, which provide warning to parents that publications classified 'Unrestricted' may not be suitable in their opinion for minors of any age, given that such publications were submitted for classification on the ground that they may have warranted restriction to adults, are preferable.
This situation also has the potential for publishers to be prosecuted under State and Territory enforcement legislation on grounds not intended at the time such legislation was enacted. For example, there is no need for a publisher to submit a publication for classification if it does not "contain depictions or descriptions of sexual matters, drugs, nudity or violence that are likely to cause offence to a reasonable adult to the extent that the publication should not be sold as an unrestricted publication". However, a publication may be called in for classification, if the Director of the OFLC has reasonable grounds to believe that it is a submittable publication, perhaps for example as a result of complaints. The Classification Board may subsequently decide that, whilst the publication does not contain depictions or descriptions of sexual matters, drugs, nudity or violence to the extent that it should be Restricted, it does contain references to "Adult Themes"on issues such as serious illness, racism, religious issues, etc and in accordance with the Guidelines proposed, classify it Category 1 or 2 Restricted. Under, for example, Victorian enforcement legislation (S.25) the publisher would be subject to a penalty as a result of the publication being given a Restricted classification, unless they are able to prove that they "believed on reasonable grounds that the publication was not a submittable publication". Although a publisher may be able to prove this, publishers should not be placed in the position of having to defend themselves as a result of discrepancies between the Act and the Guidelines.
The draft Guidelines are inconsistent with the Act and EFA opposes amendment of the Act to suit the draft Guidelines. The draft Guidelines must be amended to prevent the possibility of the above mentioned situations occurring. Revisions to the Guidelines should not result in ambiguity relative to the type of publications which are submittable and for which publishers may face prosecution for distributing without prior classification.
The "Issues for Consideration" section of the public exposure draft focusses entirely on the protection of minors indicating that little if any regard has been given, or is intended to be given, to the interests or "rights" of adults. This impression is supported by the draft Guidelines.
Under "Key Issues" (Section B, Document D) it is stated that:
"To ensure the protection of minors in accordance with the principles and standards of the Code, the proposed revisions to the guidelines aim to incorporate all factors which must be assessed to determine the classification status of material. For example, where the current guidelines concentrate on matters of sex and nudity in this category, the draft guidelines will also include new criteria for violence, drug use and adult themes."
General principle (b) of the National Classification Code (the Code) that "minors should be protected from material likely to harm or disturb them" (i.e. likely to cause developmental damage or emotional trauma) is commendable.
However, no information is provided in the public exposure draft to suggest that the current guidelines do not adequately protect minors from exposure to material in publications which may be likely to harm or disturb them, nor that there are a concerning number of complaints suggesting otherwise.
EFA wishes to make the obvious, but we fear neglected point, that while the bulk of the complaints to the Office of Film and Literature Classification (OFLC) may be about publications being too lightly censored, this is always going to be the case. People who do not think that publications should be given a more restrictive classification than that granted by the OFLC are hardly likely to contact the OFLC. In addition, few people will ever see publications that are banned and hence be in a position to protest their banning. Similarly, adult residents of Queensland will rarely know what publications, classified suitable for adults by the OFLC, are banned in Queensland as a result of the criteria of Federal legislation and Guidelines claimed to represent national "community standards".
Nevertheless, the last two Annual Reports of the OFLC advise that the number of complaints received by the OFLC regarding publications is negligible.
The OFLC's 1995/96 Annual Report (Page 26, 27) states that most of the complaints which are received concerning publications relate to publications which sit on the 'Unrestricted'/'Category 1 Restricted' border. In that year, 158 complaints were received (48 written and 110 oral): "13 of the written complaints related to the magazines Picture and/or People. Similarly the majority of the oral complaints concerned 'adult' type 'Unrestricted' magazines."
In the following year, 1996/97, the OFLC reported receiving 105 complaints regarding publications (71 written and 34 oral): "23 of these concerned the 'Unrestricted' classification given to Picture and People, which was thought to be too low. 15 other complaints related to the display and availability of 'Unrestricted' magazines such as People and Picture and other 'adult' type magazines in public places such a milk bars and newsagencies etc.". Again it seems that the majority of complaints related to 'adult' type magazines.
However, these complaints must be viewed in the context of the availability of such material. Mitchells and Partners report that Australian circulation of certain magazines in June 1997 was as follows:
| People | 86204 (weekly) |
| Australian Penthouse | 97168 (monthly) |
| Australian Playboy | 35000 (monthly) |
| Total | 6068624 (annualised) |
Whilst there were well over 6 million copies of 'adult' type magazines circulating in Australia in the year ended June 1997, the OFLC received a mere 105 complaints concerning those and other publications in that year.
Further restrictions on the freedom of adults to readily access material and read, see and hear what they want should not be implemented on the basis of complaints by an articulate and vehement minority who find certain material offensive and/or unsuitable for minors. There is no evidence whatsoever to suggest that this minuscule number of complainants are representative of the majority of adults. In fact, distribution figures suggest quite the opposite.
The OFLC's 1995/96 Annual Report states that research undertaken by the OFLC indicates that elements of concern in regard to publications on the 'Unrestricted/Restricted' border are "a combinations of elements such as the level of pictorial explicitness, advertising, explicit language and the presentation of women as sex objects in some 'adult' type magazines" and that "[w]hile a majority of participants do not necessarily support the idea of stringent censorship of such publications, they nevertheless felt they were inappropriate for people under 16 years". This indicates that the current Guidelines are perfectly adequate in that publications classified 'Unrestricted' are not recommended for minors and, accordingly, are required to be labelled 'Unrestricted'.
The Report further states that "the female oriented magazines...appeared to provoke little cause for concern..." and that "[t]he majority of mothers who participated in the groups were inclined to monitor the contents of such magazines and it was widely agreed that the magazines could provide an opportunity to discuss issues between mother and daughter. The only element of these magazines that caused any significant concern for parents is the physical image portrayed by models and the (perceived) huge emphasis such magazines placed on appearance. The magazines were seen to contribute to teenagers propensity to diet by over emphasising the slim and glamorous image.".
The Report then states that the findings of this research will be a key element in the formulation of new draft guidelines for publications. However, this does not seem to be the case.
4.1.4 Relevance of Film Guidelines
The draft Guidelines consist primarily of a copy of the criteria contained in the Guidelines for Films and Videotapes, although these have been edited to cover "descriptions" (i.e. written text) whereas the Film Guidelines refer primarily to depictions (visual images). However, no justification is provided for the apparent assumption that the potential effects of reading and viewing textual and static images in publications is the same as is claimed, but not proven, to be applicable to the viewing of films.
This unfortunately has the effect of creating a new form of thought crime, which is dependent on the thoughts and imagination of the members of the Classification Board/s. Whilst people who watch a film will see the same thing and there may be some justification for an assumption that it is likely to have a similar effect on many viewers, the same certainly cannot be said for reading textual information. The "effect" and "impact" on readers of textual information are clearly dependent on the reader's imagination and understanding of the language amongst other things. To attribute to one, or even eight, members of the Classification Board the ability to know what other people are likely to see or understand when they read textual information, and the "impact" and "effect" this is likely to have on them, is patently ridiculous.
Furthermore, given there is no evidence of a causal relationship between the depictions of violence on screen and violence which occurs in society, the intent to restrict distribution of publications using the same criteria as for films, that is, based on concern about perceived potential effects, is completely unjustifiable.
Despite the lack of any indication that the current Guidelines are inadequate to enable the protection of minors, or that minors are being developmentally damaged or emotionally traumatised by some perceived failure of the existing Guidelines, new criteria extends the range of material which is unlikely to be offensive to a reasonable adult but will not be permitted in the 'Unrestricted' category. Whilst the current Guidelines concentrate on matters of sex and nudity, the draft Guidelines incorporate new criteria for "suicide, crime, corruption, emotional trauma, drug and alcohol dependency, fetish, death and serious illness, racism, religious issues".
The new criteria seems very likely to result in restrictions on the freedom of the press to report on political and social issues; to restrict the distribution of newspapers and other mainstream publications and thereby restrict the ease with which adults are able to access information on issues relevant to adult life.
This suggests that due regard has not been given in revising the Guidelines to the competing principle (a) of the Code that "adults should be able to read, hear and see what they want".
4.2.2 Restriction of Political and Social Issues
New criteria defining material that will be permitted in the 'Unrestricted' category includes:
"Adult Themes: The treatment of themes with a high degree of intensity should be discreet and low in impact."
Reference to the Glossary reveals that "Adult Themes" does not refer to material commonly defined as "adult" material, ie. erotica, but refers to information on political and social issues. It is defined as:
"Issues dealing with aspects of adult life that are potentially harmful to minors, or disturbing. Adult themes may include references to and depictions associated with issues such as suicide, crime, corruption, emotional trauma, drug and alcohol dependency, fetish, death and serious illness, racism, religious issues."
Further reference to the definitions in the Glossary reveals that the only material involving "Adult Themes" which may be permitted in the 'Unrestricted' category is proposed to be as follow:
Themes associated with adult life (such as suicide, crime, corruption, emotional trauma, drug and alcohol dependency, fetish, death, and serious illness, racism and religious issues) should be handled, with regard to such factors as the amount of textual or visual information, emphasis and tone, with little or no textual or visual information and generally should not be prominent and the strength of the effect on the viewer/reader should be low.
There seems little doubt that many newspapers and mainstream publications would attract a Category 1 Restricted classification and be required to be sealed in wrappers if submitted, or called in, for classification.
It is questionable, however, whether these increased restrictions are likely to have any marked effect on the availability to minors of most publications discussing these topics, as these are not "Submittable Publications" as discussed above, unless it is intended that there be greater activity directed to calling in publications for classification.
4.2.3 Availability of Restricted Publications
Whilst the sale and distribution of Restricted publications is legal in most States, the requirement that Category 1 Restricted publications be contained in sealed wrappers interferes with adults' ability to make appropriate purchasing decisions. Advertising of articles on covers is frequently inadequate as evidenced by the number of adults seen scanning magazines or reading the index before purchase.
Furthermore, based on the proposed consumer advice labelling system, adults will not readily be able to identify whether a Category 1 Restricted publication (sold in a sealed wrapper) is restricted due to matters of sex and nudity, or discussion of political and social issues.
Classification fees for publications caught by new criteria will increase the cost of such publications to consumers and are likely to result in special interest publications, with low distribution, ceasing production.
4.2.4 Difficulties of Non-Uniform National Legislation
The draft Guidelines, in proposing the incorporation of new criteria, appear not to have taken into account the failure to achieve "uniform" national censorship legislation. For example, publications which would be classified Category 1 or 2 Restricted under the proposed new criteria covering "Adult Themes" (political and social issues) will be illegal to sell or distribute in Queensland to adults. Whilst Restricted publications were banned in Queensland because of content involving matters of sex or nudity, there is no indication that the Queensland Government wishes to ban the sale of publications discussing political and social issues to adults. The proposed new Guidelines, unless amended, present the Queensland Censorship Minister with the options of blocking the implementation of the new Guidelines nationally; further restricting Queensland adults to reading, seeing and hearing only material deemed suitable for minors; or significantly amending the associated Queensland Act.
As outlined above, the inclusion of new criteria is of particular concern in regard to the freedom of adults to read, see and hear what they want. Although the Act does not give the OFLC a mandate to restrict publications dealing with political and social issues ("Adult Themes"), for example, it appears this new criteria is intended to have the effect of making a greater range of publications submittable and given 'Restricted' classifications.
Whilst increasing the range of "Submittable Publications" may assist the OFLC to operate on a full cost recovery basis, the Guidelines should not attempt to provide the OFLC/Classification Boards with a wider mandate with regard to classification and restriction of publications than that intended, and granted, by Parliament. Furthermore, increased restrictions should not be implemented by stealth, in a manner which would contravene both the letter and intent of Section 5 of the Act.
The failure to provide specific exemption for illustrations, paintings, statues etc which are considered bona fide erotic artworks is disturbing. The current Guidelines for the 'Unrestricted' category contain the clause "illustrations, paintings, statues etc. which are considered bona fide erotic artworks and depict explicit sexual activity or nudity may be acceptable in 'Unrestricted' when set in a historical or cultural context". The draft Guidelines contain no such exemption. In fact, the draft Guidelines contain solely references to "lacking moral, artistic, or other values" in the definition of "exploitative" and to "artistic merit" in the definition of "gratuitous". In addition, the draft Guidelines fail to distinguish between photographs and realistic illustrations, in including both under the definition of "depiction", indicating that bona fide erotic artworks are to be classified in the same way as photographs. This is inappropriate; bona fide erotic artworks should not be given 'Restricted' classifications.
Similarly, the draft Guidelines propose, in the 'Unrestricted' category for example, that descriptions (written references) of sexual activity between consenting adults may be more detailed than photographs if this does not increase the "impact". This appears intended to place increased restrictions on the distribution of mainstream works of literature and publications not overwhelmingly dedicated to sexual matters, which are granted specific exemption from restriction in the current Guidelines.
EFA also notes with concern the recently released reasons for the re-banning of the film "Salo". Whilst the current Guidelines for Films do not specifically provide for the banning of films wherein the actors appear to be under the age of 18 years, the draft Guidelines for Publications do so. This proposed new criteria in the Guidelines for publications clearly presents an even greater likelihood of the banning of publications without regard for literary or artistic, etc, merit.
This is, EFA would suggest, a failure to take into account Section 11, Parts (b) and (c) of the Act. It is not enough that the Board/s are supposed to take this section into account when making a decision - it must be known to the Board/s and the public how these clauses are to be interpreted, otherwise no one will have the slightest idea how anything will be classified. Scientific, literary, artistic, and political merit should, therefore, be explicitly included in the Guidelines and in such a way as to ensure that these issues will be given precedence over other matters deemed relevant to classification decisions.
The current Guidelines place restriction on photographs in several places whereas the draft Guidelines restrict not only depictions, but also written references. As discussed above, the impact of written material cannot be equated with the impact of a photograph. This is an even more subjective matter than that of the impact of a photograph and appears intended to place unwarranted and unjustifiable increased restrictions on the distribution and availability of written material.
The National Classification Code (NCC) provides for the refusal to classify publications that "promote, incite or instruct in matters of crime or violence" and the current Guidelines state that such publications will be refused classification. However, whilst the draft Guidelines for the 'Refused Classification' category draw attention to that provision in the NCC, they then indicate that only publications which provide "detailed instruction in matters of crime or violence" will be 'Refused Classification'. Whether or not this is the intent should be clearly stated in the Guidelines.
In either case, it is of concern that no information is provided as to what is considered "a matter of crime or violence" and that neither the interpretation of the words "matters" and "crime," nor the individual words in the phrase "promote, incite or instruct" are clarified in the Glossary.
As the OFLC is no doubt aware, concern in this regard was expressed by Justice Merkel of the Federal Court of Australia when handing down his decision in the case of Michael Brown & Others -v- the members of the Classification Review Board of the Office of Film and Literature Classification [1997] 474 FCA (6 June 1997).
For example, he said:
"The word "matters" can have a number of different meanings, some of which are very wide. However, in its context in the Code, the word is intended to relate to or connote the commission of crime. In my view the purpose of the relevant RC classification is to prevent conduct which promotes, incites or instructs in the commission of crime. If no such limitation is imposed, the provision of all kinds of information in relation to "matters" of crime, including for example the prevention of crime, might arguably be prohibited."
Similarly:
"...conduct which is recognised as a crime in some, but not other, parts of Australia is unlikely to fall within the definition of a crime for the purposes of the Code. To come to any other conclusion would have the anomalous and unintended result that distribution of the same publication might be unlawful under the scheme in parts of Australia where the conduct in question is not a crime. That result is inconsistent with the concept and purpose of the uniform co-operative scheme. "
Rather than leaving Courts to interpret the intent of legislation, or what is "unlikely" to fall within a definition, in their view, the legislation and Guidelines must be amended to clarify these, and related issues raised by the above mentioned case. Publishers and authors must be provided with surety as to what expression will result in their prosecution under criminal law and classifiers must be left in no doubt as to what "matters of crime or violence" they may proscribe.
In addition, EFA is of the view that the existing clause in the NCC is too broad and vague, regardless
of how the various words are defined. Speech involving "matters of crime or violence" should be refused
classification only if it is directed to inciting or producing imminent lawless action and is likely to incite
or produce such action, as, for example, is the situation in the USA under the Brandenburg standard
() which prevails today.
The proposal to refuse classification to images of sexual activity and of nudity in a sexual context where
participants are, or apparently are, under 18 years of age is an unjustifiable infringement on the rights
and freedom of not only persons of 16 and 17 years of age, but older persons who look younger. This
is especially likely to affect persons of Asian descent who frequently look younger than equivalent age
persons of, for example, European descent. Persons who "look" young in the subjective opinion of the
Classification Boards should not be discriminated against, especially since this will bar them from careers
not just as "porn-stars", but in practice as actors in a wide range of roles.
The whole idea of using "apparent" age is totally dubious in this context. No criminal code in Australia
makes the age of consent dependent on apparent age: apparent age is simply too subjective to be a
reasonable criterion for deciding on a criminal offence. However, the OFLC guidelines effectively
constitute criminal legislation. In case of doubt, production of evidence of age should be sufficient to
ensure publishers are not charged with criminal offences.
The National Classification Code, which sets out the broad criteria for each of the classification
categories, places restrictions on depictions of persons under 16 years of age which is in accordance with
the most common age of consent. The Guidelines, which provide the details of what material falls within
each of those categories, should not conflict with the criteria specified in the Code. The permissible age
of participants should remain at 16 years. If the age is raised to 18 years, the "apparently" must not be
included.
Furthermore, the emphasis on banning the portrayal persons of 16 and 17 years of age when involved
in consensual sexual activity is particularly disturbing. No special restrictions on the portrayal of abuse
of persons in this age group are evident in the draft Guidelines.
Guidelines should not state that Restricted material is unsuitable for minors. This is a decision for parents
to make, not government or statutory authorities to decree. The phrasing in the current Guidelines
advising that "Adults choosing to purchase publications from [Restricted] categor[ies] should be aware
that they may contain material that is not suitable for minors or those easily offended" is far more
appropriate.
The draft Guidelines indicate that the portrayal of sexual violence will be permitted to a greater extent
than that of consenting sexual activity between adults. For example, for "Category 1 Restricted"
publications the draft Guidelines state that: "Sexual activity involving consenting adults may be
realistically simulated in photographs. Actual sexual activity may not be shown in photographs and
should be obscured." However, no such restriction is stated relative to the portrayal of actual sexual
activity involving non-consenting adults, that is, involving sexual violence, solely that same should not
be "detailed, gratuitous or exploitative".
EFA considers it inappropriate to place greater restriction on the availability of portrayals of consenting
sexual activity between adults, than that placed on portrayals of sexual activity between non-consenting
adults. The draft Guidelines must be amended to permit the portrayal of consenting sexual activity to,
at least, the same extent as that of non-consenting sexual activity.
The draft Guidelines are complex, baroque, and lacking in clarity. The definitions in the glossary are of
such a poor quality that they serve to confuse rather than to enlighten.
The Guidelines make it next to impossible for anyone to predict whether a particular publication is
submittable, let alone how it would be classified if submitted. Their vagueness allows the OFLC
Classification Board/s to act arbitrarily.
The draft Guidelines fail to improve on the current Guidelines in this regard. Where the current
Guidelines run to 7 pages, the draft Guidelines run to 17. Given that both documents are difficult to
interpret and highly obscure in places, the shorter document is the easier to understand.
Note: While some examples presented below may seem trivial and of little consequence, sloppy wording
and poorly thought out definitions in such a document are simply not acceptable. Failure to understand
and correctly interpret these Guidelines (or rather to guess how the OFLC Board will interpret them)
can destroy lives. Four editors of the student newspaper Rabelais face up to six years in prison for
publishing material they couldn't possibly have guessed was submittable, let alone 'Refused
Classification'.
The goal of the Guidelines is, as well as assisting the Classification Board/s in their activities, to help
publishers and authors understand how the Act and other relevant legislation will be interpreted by the
Board/s. The Guidelines are a complete failure in this regard.
Section 11 of the Act requires the Board/s to take into account in classifying publications
and in section 5 of the Act, a "submittable publication" is defined in terms of what is
The draft Guidelines offer no suggestion at all as to what a "reasonable adult" is, let alone a means of
determining what such a hypothetical entity would be offended by. Nor do they offer any hint as to the
decision procedures the Board/s will use in place of such a determination.
The definitions accompanying the draft Guidelines only aggravate this problem. "Offensive", for
example, is defined as:
But neither "outrage", "extreme disgust", or "most" are defined.
In short, the Guidelines fail to provide definitions of critical terms, let alone operational definitions which
could actually be used by publishers in deciding whether a publication is submittable or whether material
is offensive. By their failure to offer any guidance in this area, the Guidelines leave the members of the
Classification Board/s free to decide, on their personal and subjective whim, what "reasonable" standards
of "morality, decency and propriety" are, for the entire country.
The claim that "the Guidelines aim to be as objective as possible" is unwarranted.
Publishers and writers have acquired, over the last six years, some idea how the OFLC will interpret the
legislation within which it acts and the terms within which it is couched, and what the existing (1992)
Guidelines mean. Replacing these Guidelines completely will make much of that precedent inapplicable.
The Guidelines do provide an extensive glossary. This not only fails to explain the critical terms
mentioned above, but is so poorly put together that it increases the confusion rather than resolves
uncertainties.
impact: The Guidelines for covers of 'Unrestricted' Publications say "The impact of any depictions,
descriptions, and references on covers should be low". But the glossary defines "impact" simply as "the
strength of the effect on the reader/viewer."
So the Guidelines clearly state that 'Unrestricted' publications may not have covers which have a strong
effect on the reader/viewer. Given that most newspapers have headlines chosen in order to maximise
"the effect on the reader", it is hard to see how any newspaper could be classified 'Unrestricted'. This
is surely not what is intended.
drugs: The glossary contains the definition "Drugs: Detailed instruction in the use of proscribed drugs
is refused classification. Proscribed drugs are those specified in Schedule 4 (referred to in Regulation
4A (1A) (e)) of the Customs (Prohibited Imports) Regulations."
Leaving aside questions about what the first sentence is doing in a definition, this seems to imply that
"drugs" are not the same thing as "proscribed drugs". But the Guidelines for 'Category 2 Restricted'
say "Drug use should not be promoted or encouraged". Given that "drug use" here is not qualified with
"proscribed", this means that advertisements for aspirin would have to be refused classification under
these Guidelines.
fetish: A fetish is defined as "an object, an action, or a non-sexual part of the body which gives sexual
gratification". This makes both vibrators and masturbation fetishes. In fact, as "an action ... which gives
sexual gratification", it makes having sex in the missionary position a fetish.
adult themes: The definition of adult themes (when expanded using other definitions) describes these
as issues which potentially "cause emotional trauma" and or "cause damage" to minors. This bears no
resemblance to either common language usage or to the list of examples, given. It is somewhat difficult
to even conceive of a reference to corruption, for example, which would cause emotional trauma, let
alone "damage" to a minor.
harm/harmful: "harm" is defined as to "cause damage. In relation to minors, includes developmental
damage". But the definition of "unsuitable" implies that "harm" is exactly the same things as "cause
developmental damage".
On the subject of "developmental damage", it must be pointed out that there is no evidence that merely
encountering information of any kind can cause developmental damage. (It is, on the other hand, well
established that denial of access to information can prevent full development.) "Cause developmental
damage" here appears to be a tendentious way of saying "socialises children in ways that conservative
parents don't like".
The OFLC should avoid embedding crank pseudo-science in its Guidelines.
disturbing and offensive: To define disturbing as "causing emotional trauma" is to totally distort
common usage, where the word is not nearly that strong. Someone might, for example, say that they find
Australia's draconian censorship system disturbing, without implying that they had suffered emotional
trauma from it. Defining "offensive" as "material which causes outrage or extreme disgust to most
people" similarly contradicts ordinary language use.
In summary, the draft Guidelines reflect a poor grasp of logic and a weak command of the English
language. Prior to implementation, they would need to be rewritten from scratch.
The draft Guidelines propose that covers of publications will be affected by the new criteria in much the
same way as the content of publications. That is, there is a greater range of criteria enabling publications
to be classified Restricted, on the basis of covers rather than content. The draft Guidelines state that such
publications will be classified Category 1 Restricted provided they are sealed in opaque wrappers,
whereas the current Guidelines require that these be classified Category 2 Restricted and thus may only
be sold from restricted premises.
This provision appears likely to result in a wide range of publications produced in other countries ceasing
distribution in Australia because of the cost, and difficulties associated with, sealing in opaque wrappers.
Whilst increased restrictions on covers are not supported, EFA believes that publishers should be
provided with the choice of either sealing publications with "unsuitable" covers in opaque wrappers
(classified Category 1) or distributing same unsealed from restricted premises (classified Category 2).
The usefulness to parents of the proposed new 'Unrestricted-M' classification is questionable given this
classification will only apply to publications which did not actually warrant submission for classification
in the first place, in that they do not warrant restriction to adults. A considerable amount of material
which potentially would be given an 'Unrestricted-M' classification, if voluntarily submitted, will remain
legally unclassified. Furthermore, the overwhelming majority of material which is presently classified
'Unrestricted' is likely to attract an 'Unrestricted-M' rating under the proposed Guidelines. It is
therefore doubtful that adding an "M" to the 'Unrestricted' classification will assist parents, or adults,
in any significant way. Nevertheless, adding an "M" to the classification may alert those people who are
familiar with film classifications, but not familiar with the meaning of publication classifications.
According to the public exposure draft, no information is to be provided on the reasons for a publication
being given an 'Unrestricted-M' rating, except that it is "recommended for mature audiences only". This
appears to mean that the content is not recommended for those under 15 years of age. It would be more
helpful to parents if this was stated on the label rather than leaving consumers to guess, or find out, who
the OFLC considers to be a mature person. It is therefore suggested that consumer advice be
"recommended for mature audiences 15 years and over".
If the Guidelines are amended to incorporate the proposed new criteria, detailed consumer advice must
be provided, on the label, explaining why a publication has received a given classification. For example,
whether the content involves sex/nudity as currently, or new criteria of violence, drugs, discussion of
adult themes such as racism or religious issues, etc.
Adequate consumer advice would be particularly important in regard to publications classified Category
1 Restricted, that is, sealed in clear and, in some cases, opaque wrappers. One of the stated purposes
of classification is to protect people from exposure to unsolicited material that they find offensive, and
the achievement of this objective is apparently assisted by the sealing of publications in wrappers lest
adults should accidentally look inside a publication labelled Restricted. Given this, at the very least,
adults should be provided with advice as to why they may or may not find the content offensive to assist
their purchasing decisions. Whilst some adults may refrain from buying publications covering matters
of sex and nudity, the number of adults who find detailed information on political and social issues
("adult themes") offensive is no doubt significantly smaller.
The proposed revisions to the Guidelines achieve little other than to increase the range of publications
which may be banned, or made difficult for adults to select and access, on the basis of subjective
opinions of members of the Classification Board/s. The Guidelines do not adequately achieve the stated
purpose of informing consumers and publishers of the basis for classification decisions, nor adequately
enlighten publishers and writers as to what will result in their potential imprisonment. They instead serve
to further confuse and obfuscate.
EFA recommends that the proposed changes to the Guidelines not be made.
EFA suggests that those who seek to judge and control what is suitable for other persons to read and
see remember that:
"Books won't stay banned. They won't burn. Ideas won't go to jail. In the long run of history, the
censor and inquisitor have always lost. The only sure weapon against bad ideas is better ideas. The
source of better ideas is wisdom. The surest path to wisdom is a liberal education."
5.5 Age of Participants
5.6 Material Unsuitable for Minors
5.7 Portrayal of Sexual Violence -vs- Consensual Sexual Activity
6. Accessibility and Clarity - and the Glossary
6.1 Overview
6.2 Vagueness and Subjectivity
"(a) the standards of morality, decency and propriety generally accepted by reasonable adults"
"likely to cause offence to a reasonable adult"
"material which causes outrage or extreme disgust to most people"
6.3 The Glossary: An Exercise in Definitional Confusion
7. Suitability for Public Display - Covers of Publications
8. Mature Readers
9. Consumer Advice
10. Conclusion
(Whitney Grisworld, 1952)