20 March 2001
The Hon Trevor Griffin, MLC
GPO Box 464
ADELAIDE SA 5001
Fax: 08 8207 1736 Page 1 of 11
Dear Mr Griffin
Classification (Publications, Films and Computer Games) (Misc)
Amendment Bill 2000
refer to the document "response Classifications Amend. Bill.doc"
attached to an email message issued on 14 and 15 March
2001 by a Senior Administrative Officer in the Attorney-Generals Office and sent to members of the public who wrote to you to express their concerns regarding the Online Services section of the above Bill. A copy of this document was forwarded to EFA by various recipients and has also been posted on the SA Government's Talking Point Forum, apparently at the request of the A-G's office.
We draw your attention to the following:
- The statement in the document that online publishers "can have the proposed material classified before making it available online" is wrong according to advice provided to EFA by representatives of both the OFLC and the ABA on 16 March 2001.
- The reason that the provision for a "defendant to sign a form agreeing that the material is X or is RC", does not apply to material alleged to be R is evidently because drafters of the proposed legislation consider it is not "fairly clear" what type of material would be classified R according to the Second Reading Speech.
- Since what would be classified R is not "fairly clear", defendants will have no choice but to pay a classification fee if material is determined by the OFLC to be R. However, the Commonwealth has not prescribed fees for classification of Internet according to the Commonwealth Classification (Publications, Films and Computer Games) Regulations. To charge a defendant the current minimum fee of $770 for a 'film' of 15 minutes running time would be unfair since a web page of text does not have a "running time" and the fee for an entire printed magazine is $130. Prior to the SA Bill coming into effect, classification fees for Internet content should be determined.
- Of the four films referred to in the document as examples of adult themed material that can be accommodated at MA or lower, two of the films were classified R by the national Classification Board and only became MA after costly appeal to the Review Board. Further, 60% of a panel of Adelaide residents, who classified one of the films when participating in OFLC research, gave the film a lower classification (MA) than did the Classification Board (R). These South Australians would have committed an offence under the proposed SA legislation if they had made the material available online based on their assessment of the classification.
- Although the document states that "As long as [R material] is protected by an approved system, there is no offence", the SA Bill clearly states that it is an offence whether or not the material is protected by an approved restricted access system. Furthermore, the Bill reverses the onus of proof, requiring online publishers to prove that access was subject to a restricted access system, rather than requiring the prosecution to prove it was not.
- The view expressed in the document that "there should be no restriction of educational, scientific or professional discussion" indicates a misunderstanding of existing classification laws and the reason that Internet content that consists of text is being classified as a 'film'. Furthermore, the OFLC classifies educational articles in magazines unsuitable for children, for example, an article on cosmetic surgery in January 2001.
- The document states: "The best indication [that the legislation will not have a 'chilling effect'] is the fact that the existing laws in WA, Victoria and the NT do not seem to have had any effect of this kind."
Freedom of expression is chilled when people do not say what they would otherwise say because of fear of prosecution. It is not possible to know how many people in the above jurisdictions have been silenced by the introduction of criminal penalties applicable to speech.
The effect of existing laws in other jurisdictions is not a good indication of the potential effect of the proposed SA laws. Firstly, police in other jurisdictions may be more inclined to devote their time and resources to investigation, tracking down and prosecution of perpetrators of serious crimes that unquestionably harm members of the community such as child abuse, murder, rape, theft and so on. Evidently however police in South Australia have time and consider it a priority to spend time seeking out unnamed publications in bookshops and appealing classifications of the national Classification Board. Secondly, other jurisdictions have not made it a criminal offence to make available to adults information unsuitable for minors. South Australia will be the first.
Further information regarding the above and other statements in the document issued by your office is attached.
EFA remains concerned that the proposed legislation treats online publishers less fairly under criminal law than offline publishers and that it appears existing classification laws and related administrative procedures have not been adequately considered by legislative drafters. Further information in this regard is available in our letter to you of 7 March 2001, to which we have not received a reply, and in our comprehensive analysis of the Bill available at http://www.efa.org.au/Publish/sabillanalysis.html.
We urge the South Australian Government to suspend the Bill until its full ramifications have been investigated, criminal justice issues addressed and appropriate amendments made.
EFA response to
Q&A document "response Classifications Amend.Bill.doc"
issued by SA Attorney-General's Office on 14 and 15 March 2001
(Note: Italicised paragraphs below are extracts from the Q&A
document issued by the SA Attorney-General's Office. Non-italicised
paragraphs contain EFA's comments.)
- Thank you for your email expressing your views about the Classification
(Publications, Films and Computer Games) (Miscellaneous) Amendment
Bill 2000, which was introduced into the South Australian Parliament
last November. You may be interested in the following background
information about this Bill.
- Are we the first?
Australia is not the first Australian jurisdiction to legislate to
regulate internet content. Western Australia, Victoria and the
Northern Territory have already done so. If you are interested in
these provisions, they can be found in the Western Australian
Censorship Act 1990 (sections 99 ff), the Victorian Classification
(Publications, Films and Computer Games) Act 1995 (Part 6 - On-line Information Services) and the Northern Territory Classification of Publications, Films and Computer Games Act (Part VII - Computer Services).
- South Australia is the first Australian jurisdiction to make it a criminal offence to make available to adults information unsuitable for minors on the Internet. EFA believes South Australia will be the first Western democracy to do so. Such a law does not exist in the United Kingdom, Canada, New Zealand, the USA nor, to the best of EFA's extensive knowledge, in any other Western democracy.
- What do
the provisions do?
- The South
Australian Bill aims to subject online content to similar rules as
apply to offline content.
- The rules to be
applied to online content are different from those applied to
offline content. For example:
information (text) online is to be subject to rules applying to
movies instead of rules applying to books and magazines
treats ordinary South Australians providing on-line content less
fairly under criminal law than off-line film distributors/exhibitors
and magazine publishers
- For further
information, see Item 4 of EFA's letter to the SA Attorney-General
of 7 March 2001.
makes it illegal to make available or supply objectionable content
online, which means content which is or would be classified X or RC.
It also requires that matter unsuitable for minors, that is, R-level
content, must be subject to a restricted access system so minors
cant access it.
- Details of
the classification criteria are published in the film classification
guidelines, which can be downloaded from www.oflc.gov.au.
- These film
do not explain how they are applied to text and static images on the
Internet, as distinct from moving images and sound in movies, for
which the guidelines were developed.
X material is non-violent depiction of actual sexual intercourse,
and RC material is material that is so highly offensive that it is
banned - such as child pornography, instruction in crime, incitement
to commit crime, sexually violent material, etc.
classified RC is not necessarily "so highly offensive"
that it should be banned. For example, the national Classification
Board classified the film 'Romance' RC
in December 1999. This decision was widely criticised by members of
the public and the Classification Review Board subsequently
overturned the lower Board's decision and classified the film R. The
only reason it was originally classified RC was because the
Classification Board considered the film could not be accommodated
within the prescriptive guidelines for either the R or X categories.
It contained no "highly offensive" elements, according to
material is contentious material legally restricted to adults only.
- According to
R-rated material "deals with issues or contains depictions
which require an adult perspective". The Guidelines do not
state the material is "contentious", nor is that word
contained anywhere in the Guidelines or Glossary thereto.
- The Bill is
complementary to the Commonwealth laws. While the Commonwealth
legislation deals with internet service providers and content hosts,
the Bill deals with persons who make content available on the
- The Bill is
inconsistent with the Commonwealth law. Unlike the Commonwealth
Broadcasting Services Amendment (Online Services) Act,
the SA Bill makes it a crime to make available material that has not
been classified (but "would be" classified in a particular
manner) and whether or not access to R material is subject to a
restricted access system.
- While the
Commonwealth law requires ISPs and content hosts to take content
down on receipt of a notice from the Australian Broadcasting
Authority, they are not prosecuted or penalised unless they fail to
take the content down by 6 pm on the next working day. No such
opportunity is provided to content providers and Internet users in
the SA Bill. Instead they will be prosecuted and subject to a fine
of up to $10,000.
online material is caught?
which is in stored form and accessible using an internet carriage
service, is caught. This covers websites, newsgroups and bulletin
boards. Ordinary email is excluded from the Bill. Real time chat,
which is not stored, is not caught.
- Other material
that will be caught includes email to mailing lists which are
subsequently archived on the Web and postings on effectively live
web chat forums.
- Moreover, the
Bill makes providers of online chat forums, like the South
Australian Government's Talking Point Forum, criminally liable for
information posted by participants in the forum. Provision of chat
forums in South Australia will become highly risky once the SA
legislation comes into effect, due to the risk of prosecution of
people who merely provide web space for such forums.
- How are
people meant to know how the content would be classified?
- The offence
is only committed if the person knows that the content is
objectionable/unsuitable, or is reckless about whether it is
or not. Recklessness involves knowing that there is a substantial
risk that the matter is objectionable/unsuitable, but making it
available anyway. Police must prove this. If they cant prove
that the person knew or was reckless, the person is acquitted.
"recklessness" provisions are unworkable in the context of
classification of online material. The SA Bill states "The
question of whether taking a risk is unjustifiable is one of fact".
However, the matter of how any particular material "would be"
classified is not a matter of fact, it is a matter of opinion, a
- Under the
proposed legislation content providers are damned if they make a
genuine attempt to comply with the law and damned if they do not.
providers who make an effort to interpret the guidelines and assess
the classification, but who make the wrong guess will likely find
themselves in court. The defence they are offered is that they did
not know, and were not aware of a substantial risk, that the matter
was/would be illegal. If they claim this defence, they will then be
accused of being reckless as to risk. To prove they were not
reckless they need to show, at least, that they tried to interpret
and comply with the guidelines. In so doing, they admit they were
aware of a substantial risk that they could be wrong because the
guidelines are vague, broad, subjective and the "correct"
classification depends on a decision of the Classification Board, a
decision which is not, under the law, required to be unanimous.
- The matter of
recklessness is further addressed in section 7 of EFA's analysis of
the Bill available at:
- Of course, if a person is worried and wants to be quite sure, he or she can have the proposed material classified before making it available online.
- To date EFA has been unable to ascertain the procedure and cost for classification of proposed online content, indicating it is not presently possible to have proposed material classified before making it available online.
On 16 March 2001, EFA telephoned the Office of Film and Literature Classification (OFLC) requesting information on the procedure and cost for having proposed online content classified. EFA was advised that the OFLC does not classify Internet content for prospective online publishers; they classify Internet content only for the Australian Broadcasting Authority (ABA) and police. This confirmed previous advice to EFA. The OFLC representative stated that prospective online publishers should contact the ABA and provided the ABA's telephone number. A representative of the ABA stated that the ABA does not classify content for prospective online publishers and will only ask the OFLC to classify material on receipt of a complaint about existing online content. The ABA representative said prospective online publishers should contact the OFLC and was advised the OFLC had already been contacted and had referred the inquiry to the ABA.
EFA considers it is inappropriate for the SA Attorney-General's Office to issue statements advising that prospective online publishers "can have the proposed material classified before making it available online" without details of how this can be achieved, when the government agency responsible for classification is unable to advise of the relevant procedure and costs. EFA questions whether the South Australian Government discussed the matter of classification of online content with OFLC management prior to introducing the Bill.
Prior to enactment of any legislation that legislators purport offers online publishers an option to have material classified before making it available online, relevant issues should be addressed and resolved by the OFLC and State/Territory Governments. These include, but are not necessarily limited to:
- How could Internet content be made available to the OFLC for classification without commission of a criminal offence? The SA bill makes it a crime to "make available" material online that "would be" classified R, X or RC to any person. No exception applies to making content available to any particular person, organisation or government agency for classification or any other purpose:
- A copy of a web page cannot usefully be made available to the OFLC on paper, because then it would be a publication not a "film" and have to be classified under Guidelines for Publications, not Films.
- While static HTML web pages might readily be captured on portable media (such as floppy disks or CDs) and submitted to the OFLC by post, many modern websites consist of dynamic content linked from remote banner advertising sites, active server pages generated from database servers, and server-side scripts, none of which can be readily submitted for classification without placing the material online, which would be an offence under the proposed legislation if the material was classified objectionable or unsuitable for minors.
- Once a web page or site has been classified by the OFLC, what will constitute acceptable proof in a court that the page or site online is, or is not, identical to that classified by the OFLC? At best, it appears this will be the OFLC's word against the online publisher's. While this situation is in principle the same as applicable to offline material, one of the benefits of online publication is that material can be easily updated and changed. However, a change to, for example, the juxtaposition of images and text on a page may change the "impact" of the material and hence the classification. A content provider who wished to rely on an OFLC classification as a safe harbour from criminal prosecution would need to have pages/site re-classified each time changes are made. Version control procedures will be necessary to avoid any potential for the OFLC to identify an early version of material as the most recent version submitted.
- What classification fees will be applicable to Internet content? The current minimum for classification of a film for public exhibition, of 15 minutes running time, is $770. What is the "running time" of a web page or web site ("films")? Further, the present minimum fee is clearly unjust in cases where online content consists, for example, of a small number of images or web pages of text, since the fee for classification of an entire offline magazine is $130. Will the same fees be charged for amendments to previously classified material?
- Does the OFLC have sufficient staff available to classify online content and re-classify same each time a publisher updates their material? During the past fifteen months, offline publishers have reported delays of months in receiving a classification.
- What turnaround time would the OFLC provide for classification of online content? Persons who wish to post material to chat forums, newsgroups etc, which are near real time, cannot wait weeks or months for a classification, by which time the relevant discussion will likely have ended. Even one day is too long. The same applies to web pages about matters of current public debate. Would prospective publishers be refunded classification fees, if by the time they receive a classification, the matter has ceased to be topical?
- Does the
Bill mean its up to police to decide whats offensive?
- No. Police
do not decide. The material has to be classified by the national
Classification Board, using the nationally agreed guidelines which
apply to films. The exception is where the defendant agrees with
police that the material would have been classified X or RC. Police
can invite the defendant to sign a form agreeing that the material
is X or is RC. If the person signs, the notice acts as evidence and
there is no need to have the material classified. Needless to say,
people who dont agree with the police wont sign. The
police will then need to prove the classification in the ordinary
way. However, if police were right and the material proves to be X
or RC, the defendant pays the classification fee.
- As has been
amply demonstrated in the recent case of the book 'Pictures' by
Robert Mapplethorpe, South Australian police do not prove a
classification "in the ordinary way". Not satisfied with a
decision of the national Classification Board, the SA police
appealed to the Classification Review Board, resulting in a book
that was initially classified Unrestricted being classified
Restricted, that is, unsuitable for minors - the equivalent of R
online under the proposed SA legislation.
- In effect, the
police decided how this book would be classified. They were not
under any obligation to appeal the decision of the national
Classification Board, and if they had decided not to do so, the book
would have remained classified Unrestricted.
- Note that
this procedure does not apply where the material is alleged to be R.
- Evidently, the
reason that this procedure only applies to material alleged to be X
or RC and does not apply to material alleged to be R is because
drafters of the proposed legislation consider it is not "fairly
clear" what type of material would be classified R. The Second
Reading Speech of the Bill states:
often, even though an item has not been classified, it may be fairly
clear on examination how it would be classified. For example, all
child pornography will certainly be refused classification. In such
cases, classification is [currently] required, even though there may
be in reality no dispute over what the classification would be. To
address this issue, it is proposed to insert a new clause 83A,
which would permit the prosecution to serve the defendant with a
notice asserting that the item was or would be classified at a
particular classification. If the defendant does not dispute this,
he or she may sign the notice, which can be tendered in evidence as
proof of the classification. This avoids the cost and delay
associated with classification, or obtaining a certificate of
classification, where it is apparent to all that the item was or
would have been classified in a particular way."
- Since it is not
"fairly clear" whether particular material would be
classified R, an online publisher will not have an option to agree
with police as to classification and thereby avoid paying the
classification fee (as in the case of material alleged to be X or
RC). An accused will have to pay the classification fee if the
material is determined by the OFLC to be R.
- At present, the
fees for classification by the OFLC prescribed in the Commonwealth
Classification (Publications, Films and Computer Games) Regulations
do not include fees for classification of Internet content. If, as
it appears, Internet content is to be classified as if a 'film', the
current minimum fee is $770, that is, the fee for classification of
a film for public exhibition, of 15 minutes running time. What is
the "running time" of a web page or web site? By contrast,
the fee for classification of an entire printed magazine is $130.
- Prior to the SA
Bill coming into effect, classification fees for Internet content
that consists of text and static images should be determined in a
manner that is not based on a minimum "running time" of 15
minutes. Classification fees relevant to the number of pages or
images, or those applicable to publications would be less unfair to
online publishers, many of whom provide content free of charge
online, unlike the vast majority of offline publishers who receive
income from their publications. Establishing more appropriate
classification fees for Internet content may also minimise the cost
to tax payers when police mis-guess the classification that would be
given to Internet content and so cannot require the online publisher
to pay it.
information on the matter of who decides what is illegal are
contained in Item 2 of our letter to the SA Attorney-General of 7
the Bill stifle the discussion of adult themes?
- Adult themes
are taken into account in classifying films. However, they dont
necessarily result in the film being restricted to adults, or
banned. Adult themes are permitted in M and MA rated films. At MA
level, for example, content such as in Saving Private Ryan
(war theme) and The Green Mile (death penalty theme) and
The Generals Daughter (rape theme) can be
- Both 'Saving
Private Ryan' and 'The General's Daughter' were
classified R by the national Classification Board. These films were
subsequently classified MA on appeal to the Classification Review
Board, further demonstrating the point EFA has previously made that
online publishers cannot be expected to know how any particular
material would be classified, since even members of the two
Classification Boards do not necessarily agree and evidently those
who drafted the SA Bill recognise this is not "fairly clear".
- In October
1999, a group of Adelaide residents viewed and classified the film
'The General's Daughter' as part of the OFLC's Community
Assessment Panels research.
- Of the 20
Adelaide panel members, 8 classified the film R and 12 classified
the film MA, that is 12 (60%) of them gave the film a lower
classification than the Classification Board. These 12 Adelaide
residents would have committed an offence under the proposed SA
legislation if they had made the material available online based on
their assessment that it would be classified MA, the evidence of
which would be a Classification Board certificate stating the Board
had classified it R.
- While an online
publisher could presumably appeal to the Classification Review Board
after criminal proceedings have commenced against them, and the
Review Board might grant a lower classification than the lower Board
(as they did in the case of 'The General's Daughter'), how
any particular material would be classified by a majority of either
Board depends to a significant extent on the membership of the
Boards from time to time and which particular members are assigned
to classify particular material. Generally, a sub-group of the full
Classification Board is selected to classify a particular film.
information on classification
of 'The General's Daughter'
is available on EFA's web site:
- At M level,
themes such as the holocaust/racial persecution (eg Schindlers
List) can be accommodated.
List' was classified in December 1993, prior to the enactment of
the current Commonwealth and SA Classification Acts and prior to the
introduction of more restrictive Guidelines for Classification of
Films which became effective in 1996. Whether this film would
receive the same classification today as it did seven years ago is
- Adult themed
material will only result in R classification if the theme is
treated with a very high intensity.
- Accordingly, it
will be a criminal offence to make such material available online to
other adults attracting a fine of up to $10,000, dependent on the
views of the Classification Boards about the "intensity"
of adult themed material.
- In the case of
the film 'The General's Daughter', the Classification Board
stated in its report on the reasons for an R classification that:
follows a murder investigation of a particularly heinous crime. The
nature of the crime is horrific enough; however the tone is
strengthened by the constant emphasis on psychological warfare and
post traumatic effects of trauma [rape]. The murder victim, who
worked as a military psychologist had earlier stated, 'We fuck with
peoples' minds". As the investigation [of the murder] draws to
a head, the audience is left to ponder the question, "What's
worse than rape?". Given the intensity of the theme, and the
visuals of sexual violence it is felt that some of the material may
be offensive to some sections of the adult community".
- Hence, the
extent to which "adult themed material" will be censored
by the SA Bill depends in part on whether a majority of the OFLC
Classification Board members "feel" that the "intensity
of the theme" is such that the information might be offensive
to some people.
- R level
material can still be made available under the Bill, as long as it
is subject to an approved restricted access system.
- The SA Bill
makes it a criminal offence to make available material that is or
would be rated R, whether or not access is subject to a restricted
access system. It states:
- "75D.(1) A
person must not, by means of an on-line service, make available or
supply to another person any matter unsuitable for minors [i.e. is
or would be classified R]: ... Maximum penalty: $10,000".
- If it is
intended to be legal to make available R level material if it is
behind an approved Restricted Access System (RAS), the proposed
legislation should state that, rather than making a RAS a defence to
- In this regard
the SA Bill is inconsistent with Commonwealth law which it is
claimed to complement in "What do the provisions do?"
above. The Commonwealth Broadcasting Services
Amendment (Online Services) Act states:
purposes of this Schedule, Internet content hosted in Australia is
prohibited content if:
(a) the Internet
content has been classified RC or X by the Classification Board; or
the Internet content has been classified R by the Classification
access to the Internet content is not subject to a restricted access system"
- In contrast,
the SA Bill makes it a crime to make available material that has not
been classified (but "would be" classified in a particular
manner) and whether or not access to R material is subject to a
restricted access system.
the SA Bill reverses the onus of proof, requiring online publishers
to prove that access was subject to a restricted access system,
rather than requiring the prosecution to prove it was not. The
proposed legislation unjustifiably enables prosecution proceedings
against any content provider whether or not a restricted access
system was in place and when content was not made available to
anyone other than adults. It is to add insult to injury to require a
content provider to prove access was subject to an RAS.
- EFA's comments
on the technical issues relative to proving that a RAS was in place
are contained in Item 5 of our letter to the SA Attorney-General of
7 March 2001.
- There should
be no undue restriction of the discussion of adult themes.
- A definition of
"undue" is the matter at issue. There is no question that
the SA Bill makes it a criminal offence to make available detailed
information on "adult themes" to adults, as well as to
minors. In addition to the actual provisions of the law, uncertainty
as to what is permissibly non-detailed will chill discussion on such
themes. This situation arises because the Bill makes it a criminal
offence to make available "matter unsuitable for minors",
that is, information that is or would be classified R. In other
words, the highest classification that will not attract prosecution
is MA15+. The OFLC Guidelines for the MA classification require that
the "treatment" of "adult themes" be "discreet".
The definition of "discreet", in the Glossary to the
Guidelines, is "With little or no detail and generally brief".
Therefore, discussion of adult themes that is not "with little
or no detail and generally brief" carries a risk of being
classified R/unsuitable for minors. "Adult themes" include
topics such as "suicide, crime, corruption, marital problems,
emotional trauma, drug and alcohol dependency, death and serious
illness, racism, religious issues" according to the OFLC
information on this matter is contained in Item 3 of EFA's letter to
the SA Attorney-General of 7 March 2001.
- Also, not
all types of internet material are covered. A recording for
business, accounting, professional, scientific or educational
purposes is not a film, unless it contains an image
which would result in an MA or higher classification. Hence, there
should be no restriction of educational, scientific or professional
- The reference
to an 'image' above appears to have been taken out of context of the
Classification Acts and without regard for the reason that Internet
content is being classified as a 'film'. The suggestion that 'there
should be no restriction of educational, scientific or professional
discussion' indicates a misunderstanding of existing
classification laws. Written/textual information on a computer
screen is treated as a 'visual image' and is therefore a 'film'
caught by the SA Bill irrespective of the whether the material is
text and of an educational or scientific nature.
- On 4 June 1999,
during the time the Commonwealth Internet censorship legislation was
in the Commonwealth Parliament, Mr Geoff Holmes, a solicitor in the
Policy Division of the Civil Law Division of the Commonwealth
Attorney-General's Department, advised EFA's now Executive Director
that text on a computer screen is a "visual image" for the
purpose of the Classification Acts and is therefore a film. The
basis of this treatment was said to be as follows:
The definition of a
'film' in the Classification Act "includes ... any other form
of recording from which a visual image, including a computer
generated image, can be produced"
- The definition
of a 'computer generated image' in the Act includes "an image
in the form of text".
- Hence, text on
a computer screen is a computer generated image/visual image and
thus a film. Therefore, the same Guidelines and provisions of the
Act and National Classification Code apply to written material of an
educational or scientific nature as to any other type of material.
If it is or would be rated R applying guidelines designed for
movies, it will be a criminal offence under the SA Bill to make it
available to adults on the Internet.
- A recent
decision of the national Classification Board provides an example of
educational information deemed to be matter unsuitable for minors
and therefore a criminal offence to make available online under the
- In January
2001, the national Classification Board censored pictures of normal
vaginas contained in a serious magazine article about cosmetic
surgery. The article aimed to inform women on the true appearance of
normal vaginas after doctors had expressed alarm at the number of
women requesting cosmetic surgery to make their genitals look more
like the computer-edited images in magazines. Australian censorship
laws prohibit detailed depictions of normal female genitals in
publications classified Unrestricted, and any publications not
classified Unrestricted are illegal to sell to adults in Queensland.
Hence publishers of magazines such as Playboy and Penthouse edit
photos of female anatomy so that they are not too detailed and can
be published in Unrestricted versions of their magazines. Such
edited photos give a false impression of the appearance of normal
vaginas and sometimes indicate the woman in the photo has been
- The publishers
of 'Australian Womens Forum' magazine intended to publish a serious
article in their February 2001 edition that aimed to educate women
about the true appearance of normal vaginas and related cosmetic
surgery. The OFLC Classification Board deemed this article
unsuitable for minors, thereby warranting a Category 1 Restricted
classification (the equivalent of R online under the SA Bill). The
Board's report on its decision (L00/3180) states:
majority of the Board's view depictions of genitalia in an article
titled 'Lip Service' on page 50 warrants a Category 1 classification
as they do not constitute discreet genital detail. Further, the
depictions are prominent and contain a genital emphasis. In the
minority of the Board's view these depictions can be accommodated at
an Unrestricted classification as they are contextually justified
within the serious nature of an article on cosmetic surgery in a
publication which is principally a lifestyle magazine oriented
toward women's health and sexuality."
- As the above
example shows, if the SA Bill is enacted it will be a crime to make
available online not only "pornography" but also serious
educational articles of a health and medical nature that are deemed
unsuitable for minors.
information on the above case is available in:
- Is it
true that it will be an offence to have R material on the net, even
if no minors access it?
- The material
must be protected by an approved restricted access system (ie a
password or PIN). Otherwise, an offence is committed. This is
because, if it is not protected, there is no guarantee that minors
wont access it. As long as it is protected by an approved
system, there is no offence.
- As detailed
earlier herein, the SA Bill clearly states that it is an offence
whether or not the material is protected by an approved restricted
- This is
similar to the existing requirement that some publications must be
sold in a sealed bag, even if all the customers who come into the
shop are adults, or that only adults can be admitted to a cinema
where an R film is screening.
- The restriction
may be 'similar' in principle, but in operation it is not. The
requirement disregards both the nature and technology of the
Internet. Further information on this matter and the difficulties of
proving in a court that an RAS was in place is contained in Item 5
of EFA's letter to the SA Attorney-General of 7 March 2001.
- How do we
know the Bill wont have a chilling effect on free
- The best
indication is the fact that the existing laws in WA, Victoria and
the NT do not seem to have had any effect of this kind.
- Freedom of
expression is chilled when people do not say what they would
otherwise say because of fear of prosecution. It is not possible to
know how many people in the above jurisdictions have been silenced
by the introduction of criminal penalties applicable to speech.
- EFA questions
the merits of introducing new laws on the basis of what "seems"
to be. Has the South Australian Government obtained information from
the OFLC, or police, on classifications made under laws of WA,
Victoria and NT?
- Regardless, the
effect of existing laws in other jurisdictions is not a good
indication of the potential effect of the proposed SA laws because
the SA Bill is more restrictive than other laws and the effect of
the SA law will depend in part on the extent to which it is
- Firstly, police
in other jurisdictions may be more inclined to devote their time and
resources to investigation, tracking down and prosecution of
perpetrators of serious crimes that unquestionably harm members of
the community such as child abuse, murder, rape, theft and so on.
Evidently however police in South Australia have time and consider
it a priority to spend time seeking out unnamed publications in
bookshops and appealing classifications of the national Classification
- Secondly, other
jurisdictions have not made it a criminal offence to make available
to adults information unsuitable for minors. South Australia
will be the first.
jurisdictions permit a defence of taking "reasonable steps"
to avoid providing restricted material to minors. In the case of WA
and the NT, it is also a defence to a charge of providing R material
to minors that the defendant complied with an industry code of
practice. By contrast, the proposed SA legislation provides only the
defence of using an approved Restricted Access System (RAS).
Commonwealth law does require the use of an approved RAS, the
penalty for non-compliance is a takedown notice, not a fine of up to
the legislation in each of WA, NT and Victoria specifically
recognises that Internet content includes publications as well as
films and computer games, indicating Internet content that consists
of text would be classified under Guidelines for Publications, not
the more restrictive guidelines designed for movies.
- I hope this is of assistance to you in evaluating the Bill and thank you for your comments.
- EFA remains concerned that the proposed legislation treats online publishers less fairly under criminal law than offline publishers and that it appears existing classification laws and related administrative procedures have not been adequately considered by legislative drafters. Further information in this regard is available in EFA's letter faxed to the SA Attorney General on 7 March 2001, to which we have not received a reply, and in our comprehensive analysis of the Bill available at http://www.efa.org.au/Publish/sabillanalysis.html.
- EFA urges the South Australian Government to suspend the Bill until its full ramifications have been investigated, criminal justice issues addressed and appropriate amendments made.