10 March 2000

Classification Amendment Bill (No. 2) 1999

Below is a copy of EFA's submission to the Senate Legal and Constitutional Legislation Committee's inquiry.


  1. Executive Summary
  2. Introduction
  3. The Change from X to NVE
  4. Public Consultation
  5. Nature of NVE material
  6. Effects of the Change on the States
  7. Persons Aggrieved
  8. Changes to the Guidelines
  9. The classification system generally
  10. Freedom to speak and read
  11. Conclusions
  12. Recommendations
  13. Bibliography

1. Executive Summary

  • The proposed changes to the definition of the content of X rated material are unjustified and should be omitted from the amendments.
  • Proper public consultation has not been conducted, and should take place in relation to any proposed changes to film and video classifications.
  • The potential wider availability of X rated material throughout the States, as a possible consequence of renaming the category, is outside the constitutional powers or responsibility of Federal Parliament.
  • Objective research, rather than personal bias or pseudo psychology, should be used as the proper basis for assessing the impact of video material on human behaviour.
  • A revision of the R category should be carried out so as to more readily accommodate explicit sexual activity in context.
  • An enquiry should be conducted into the activities, staffing and role of the Office of Film and Literature Classification to ensure that the organisation is properly able to perform its role in an independent and objective manner.
  • The change from X to NVE in itself is of no particular consequence, as long as the change is divorced from unjustified further censorship restrictions.

2. Introduction

Electronic Frontiers Australia Inc. ("EFA") is a non-profit national organisation formed to protect and promote the civil liberties of users and operators of computer based communications systems. EFA was formed in January 1994 and incorporated under South Australian law in May 1994.

Our major goals are to advocate the amendment of laws and regulations in Australia and elsewhere (both current and proposed) which restrict free speech and unfettered access to information and to educate the community at large about the social, political and civil liberties issues involved in the use of computer based communications systems.

EFA's concerns about the proposed Bill are twofold. Schedule 2 of the Bill provides for consequential amendments to the Broadcasting Services Act 1992 which will have the effect of further increasing the level of censorship applied to material on the Internet. EFA holds the view that the Online Services Bill passed by the Parliament in 1999 is a bizarre piece of legislation that fails to meet its stated objectives and ignores world best practice in relation to dealing with contentious online material.

EFA has further concerns that censorship of all media in this country is becoming increasingly restrictive. This policy direction, which is being implemented without reference to, or significant demand from, the community at large, ultimately affects freedoms generally. We are obliged to speak out about this steady encroachment on the civil liberties of Australians and the freedom of adults to read, hear and see what they want.

The options outlined by the government in relation to X-rated material provide ample evidence of this contention. Apart from doing nothing, the only other options presented were to further restrict the material or to ban it outright. Liberalisation of the present guidelines was not even presented as an option.

We also have specific concerns about the measure in the Bill to extend the definition of "person aggrieved" in both Schedule 1 and Schedule 2. This change appears carefully crafted to allow pro-censorship pressure groups to appeal classification decisions while denying the same privilege to groups like EFA who may wish to appeal an overly conservative decision.

3. Reasons for the Change from X to NVE

A major reason advanced for this change is to give effect to a government policy commitment to abolish the X classification. Clearly when this policy was promoted it would have been understood by the public to mean banning of X-rated material, rather than renaming of the classification with additional restrictions. When the government encountered a backlash from the community about this outrageous restriction on adult freedoms, the approach was obviously altered to a change of name. It should go without saying that the majority (70-80%) of Australians have indicated in survey after survey that they would not support banning this material. It is not clear who the change of policy was meant to fool but it is likely that it will fool no one. The moral crusaders will remain outraged, while those of liberal viewpoint will consider the move a further erosion of the freedom to choose. Since this is a lose-lose situation, EFA submits that the government would do better to keep the majority happy and do nothing.

A second reason advanced for the change is that it would deal with misconceptions in the community about what the X category actually contains. No evidence is presented that any such misconceptions exists. We contend that there is no confusion, except that which certain conservative elements in the Parliament attempt to create through deliberately misleading statements, particularly in relation to sexual violence. Sexual violence was eliminated from the X category in 1984. The term Non-Violent Erotica is clearly meant to continue the distortion by falsely implying that the X classification is Violent Erotica.

Whether one chooses to describe this material as erotica, porn, or sexually explicit material, everyday experience suggests that the general public has a pretty fair idea what X-rated means, irrespective of the views of the Parliament.

4. Public Consultation

The government's Explanatory Memorandum to the Bill makes it quite clear that the only groups consulted in respect of this proposed change were the censorship ministers and the industry. It is also apparent that moral crusaders have been active in seeking to have the government ban the material outright.

No attempt whatsoever has been made to determine community attitudes in relation to this proposed change. EFA contends that the matter should be debated in the community rather than decided behind closed doors. We suggest that if the matter were to be open to debate, much more questioning of the need for this change would result.

5. Nature of NVE material

The committee has been asked to consider the nature and possible effects of the material to be included in NVE. Presumably this reference is designed to provide a platform for conservative interests to proclaim the dangers to the human race of sexually-explicit material.

It could be postulated that if the availability of X-rated material has not resulted in dysfunctional behaviour inside or outside the bedrooms of the nation, the more restrictive NVE category will have even less effect.

Unfortunately some members of the Joint Select Committee on Video Materials, which conducted enquiries in the late 80's, accepted evidence about the negative effects of this material that would quite simply not stand up to rigorous research conducted according to the scientific method. Pop psychology and bogus research from anti-porn crusaders was accepted unquestioningly to support the case for banning X-rated material, while objective research that found no harmful effects from non-violent sexually explicit material was ignored.

Time does not permit a full analysis of this issue, but the committee is referred to the excellent study by Irene Graham about the work of the Joint Select Committee and the lack of objectivity exhibited by certain members (see Bibliography The X-rated Hoax). Myths from that era have been further perpetrated by successive reincarnations of the group popularly known as the Senate Morals Committee. EFA contends that committees stacked with members who come to inquiries with pre-conceived notions about the desired outcome do a disservice to the Parliament and the community.

Senator Harradine claims that "the bulk of 'X' rated videos engender a sexually calloused [sic] and manipulative orientation toward women". No evidence is provided to back up this claim except for suspect findings from groups associated with the moral right. Perhaps Senator Harradine believes that if he repeats this mantra often enough it will be believed. More objective and unbiased research is available which refutes the Senator's claims, and EFA invites the committee to look at the research findings with an open mind.

6. Effects of the Change on the States

The committee has been asked to consider "whether the change from the 'X' rating to 'NVE' would support moves to make the bulk of material now classified 'X' more accessible throughout the States". One is inclined to ask what business it is of the Senate what individual states may decide to do as a result of the change. The question is quite blatantly pandering to the conservative moral crusaders in the Parliament who believe it is their duty to decide what activities other Australians may choose to undertake in their bedrooms.

X-rated material is freely and openly available by mail order from the ACT and NT in all states. No reasons have ever been advanced for restricting over the counter sales or mail order sales in the States themselves, but there seems little justification for such restrictions, provided that appropriate measures are in place to restrict sales to adults. Such measure are much more likely to be effective in over the counter sales anyway. No doubt because of the stigma that religious groups have managed to attach to matters of sex, mail order sales will continue to be popular amongst those who prefer more privacy.

It is known that the state censorship agencies often receive requests from members of the public to loosen the restrictions on X rated material. If changing the classification to NVE were effective in removing the barriers to such changes, it would at least provide one positive outcome from the proposed amendments.

7. Persons Aggrieved

Item 51 in Schedule 1 and Item 12 in Schedule 2 provide for an extension of the meaning of the term "person aggrieved" in respect of who can lodge an appeal against a classification decision. This change appears carefully crafted to allow pro-censorship pressure groups to appeal classification decisions while denying the same privilege to groups like EFA who may wish to appeal an overly conservative decision. The problem is the term "contentious aspects of the theme or subject matter". Pro-censorship groups are more likely to consider some themes contentious, while anti-censorship groups are more concerned about the act of censorship itself, and would be more interested in objecting to over-zealous censorship. This measure is made even more controversial by the fact that the so-called "research" conducted by moral crusaders is often bogus and subjective.

EFA strongly objects to these particular changes, and recommends that the wording be changed to be more inclusive of both sides of the debate. If a change is to be made at all, it would be far more appropriate to allow any member of the public to have standing (subject to guidelines), as recommended by the Australian Law Reform Commission Report of 1991.

8. Changes to the Guidelines

EFA has some concerns about the Guidelines tabled with the Amendments. For example, the word "fetish" is held to mean "an object, an action, or a non-sexual part of the body which gives sexual gratification." Given that ordinary sexual intercourse is "an action which gives sexual gratification", the definition implies that the entire sexually active population of the country indulges in fetish activity, a term which is used in a pejorative sense throughout the classification system.

The Explanatory Memorandum to the Bill states that "mild fetishes" are to be banned from the NVE classification, and some examples of unacceptable fetishes are described in the new Guidelines. In contrast, the existing Guidelines for the X category exclude "offensive fetishes", while explicitly permitting "mild fetishes". One has to ask what the government is doing in the fetish approval business, especially when the definitions are expressed in torturous language more appropriate as religious dogma than government regulation.

The proposed new Guidelines also extends the meaning of the word "demean":

    Demean: A depiction, directly or indirectly sexual in nature, which debases or appears to debase the person or character depicted or which lowers the dignity or standing of the person or character.

The phrase "or which lowers the dignity or standing of the person or character" is not contained in the existing Guidelines. No explanation is offered for this change in definition.

The proposed Guidelines ban "consensual depictions which purposefully demean anyone" and, taken in conjunction with the extended definition of the word, this could be used to ban a great deal of material, for reasons that are obscure given that the activity is consensual. The ordinary English meaning of the word "demean" is not particularly connected with a sexual context. Perhaps the meaning of the word has been deliberately distorted to avoid banning films about say, the role of, and attitudes towards, women in the Catholic Church.

This fiddling with the meaning of words and phrases is excruciatingly tiresome and clearly aimed at providing even more reasons for films to be banned, with not a shred of evidence presented to justify the changes. Sexual activity is a private matter, and the government should get out of people's bedrooms and leave such issues to individual choice.

9. The classification system generally

The recent controversy over the film Romance has exposed a flaw in Australia's film classification system that demands attention. This film was initially banned by the Classification Board as being too violent for the X category and too sexually explicit for the R category. It was therefore initially classified RC, despite the fact that nothing in the film warranted placement in this category. The classification decision was arrived at by default rather than by common sense. There is clearly a case for the guidelines to be thoroughly reviewed in the adult material ranges so that explicit sex scenes may be included in the R category, with appropriate consumer warnings. The present torturous and arbitrary guidelines in the R and X categories make no logical sense, and appear to be the result of successive interference by meddling politicians with a pedantic obsession for redefining the English language.

10. Freedom To Speak And Read

"One of the great changes that have come over Australia in the past six months is that people do feel able to speak a little more freely and a little more openly about what they feel."
- Prime Minister John Howard, 1996

It is commendable that the Prime Minister apparently favours freedom of expression, or did so at the time of making that statement. Unfortunately however, it appears the government has progressively retreated from that position. There is a disturbing trend towards an increasingly repressive censorship regime in all media in Australia. While such measures invariably claim "protecting the children" as an objective, they deny the rights of adult Australians to read, see and hear what they want and they deny parents' responsibility for safeguarding their children.

The proposed changes to the X classification are a primary example. The aims of this change are dubious and will infringe the legislated principle in Australian law that adults should be free to read, see and hear what they want.

EFA believes that the proposed amendments further contravene Australia's international obligations as a signatory to the Universal Declaration of Human Rights and the "International Covenant on Civil and Political Rights (ICCPR).

Article 19 of the ICCPR states:

  1. Everyone shall have the right to hold opinions without interference.
  2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
  3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
    (a) For respect of the rights or reputations of others;
    (b) For the protection of national security or of public order, or of public health or morals.

EFA draws to the Committee's attention that the proposed legislation will infringe the rights of Australian citizens under clause 19(2) and is not "necessary" as set out in clause 19(3).

Despite the claims of moral crusaders that there is "wide community concern" to support the heavy-handed censorship they favour, surveys of Australian adults since at least 1992 have consistently shown vast support for the availability of X-rated (67%-83%) and R-rated material (72%-82%) to adults. These studies have been carried out by respected organisations including the OFLC and the ABA. (For examples, see:

The results of these surveys are supported by the community outrage evident during the Government's most recent attempts to ban X-rated videos and R-rated material on pay-TV. Several years passed before the results of the ABA survey in the latter regard were accepted as reflective of community views.

As Avedon Carol, of Feminists against Censorship UK, writes, in A Lie About the Dangers of Pornography:

    'It is morally wrong to pretend that we can end sexual violence by handing over our freedom of expression to the forces of repression. Half a century of research has consistently demonstrated that it is sexual repression, not pornography, that is at the root of the outrageous acts performed by most serious sex offenders. Why are we being sold a lie about the dangers of pornography, rather than told the truth about the causes of sexual violence? And when is it going to stop?'

11. Conclusions

The interference in this issue by narrow-minded conservatives in the Parliament in recent weeks is comical. If reports in the media are correct, certain Members of Parliament were treated to private showings of alleged X-rated material. However, a search of the OFLC database available on the Internet fails to provide any information about the films named in the press as amongst those viewed. Either the media report was wrong, or the OFLC database is not correct. If neither of these alternatives is true, one is drawn to the conclusion that the MPs were watching unclassified films. Ignoring the questionable legality of that activity, it would appear that once again Senator Harradine is attempting to distort the facts by portraying extreme unclassified material as X-rated. Conservative groups or individuals are quite entitled to their views. They are not entitled to inflict them on the entire community.

It has become obvious from recent media reports relating to the film Romance that the OFLC board comes under intense political pressure from certain quarters. The recent interference by Cabinet in the selection process for classification board members is likewise most disturbing. The current board has few people with any experience and that seems to have been a major contributing factor in the Romance fiasco.

In September 1996, the then Chief Censor (John Dickie) told the Senate Estimates Committee:
"[the Censorship Ministers] did not want to go back to the situation where you could not see films in Australia that you could see overseas."
Yet that is exactly the situation that is occurring in Australia, and will get progressively more common unless the government retreats from its regressive policy.

Classification is justifiable if it is used to provide consumer information. It is unacceptable to use the classification system to censor or ban material just because a section of the population, or worse a section of the Parliament, may find it objectionable. No one is forced to see any movie they don't wish to.

The point where the community should provide direction to film makers is at the box office, not at a government office. Material that is criminally prosecutable obviously cannot be permitted, but too much material is becoming subject to the arbitrary guidelines we have in Australia. The development of the current guidelines has had very little community involvement. They have arisen as a result of a process involving the OFLC, the Senate Community Standards Committee in its various guises, the Censorship Ministers group (SCAG), and a very influential academic, Professor Peter Sheehan from the Australian Catholic University, who has played a key role in developing the final guidelines. The Parliament itself doesn't get a say, nor is there any real attempt to determine the views of the community at large.

Do the moral crusaders in the Parliament represent the community? EFA contends that they do not. They inject their own personal belief system into their hearings and findings, ignoring all evidence that contradicts their pre-conceived opinions. It is a blatant example of social engineering that the rest of the Parliament seems to prefer to ignore. As a result, Australia is now regarded internationally as one of the most conservative and censorious of Western nations. On the few occasions where community panels have been brought in to review films, they have tended to be less conservative than the OFLC classifiers. Even then, how can community panels be selected as genuinely representative?

The Lolita episode last year was a particularly blatant example of political interference. A small group of Parliamentarians took it upon themselves to try to have it banned. If the OFLC is supposed to represent the community interest, why do politicians interfere so much, and why is there no real attempt to determine community opinion? The ABA carried out a survey a few years back into the question of R-rated material on pay-TV. The results supported its availability but the Senate Select Committee ignored the survey and recommended otherwise. Other surveys have consistently shown that in excess of 70% of the community rejects the level of censorship that we currently have.

Why should not the classification of films be done by the distributors, just as television stations classify the material they broadcast? Films exhibited in the cinema are less intrusive than television so why do we need a government agency to classify them? The OFLC role could devolve into ensuring that classifications stay within the guidelines. Such an approach could surely produce an outcome no more controversial than the current arbitrary system.

Happy, consensual sex is a normal part of human life, and the attempts of moral vigilantes to portray all but the most narrowly-defined sexual activity as vile and disgusting is to impose on the entire population a religious guilt complex about sex that has no place in a modern, liberal society.

12. Recommendations

EFA recommends the following:

  • that the proposed changes to the definition of the content of X-rated material be omitted from the amendments and the proposed new Guidelines.
  • that proper public consultation take place in relation to proposed changes to film and video classifications.
  • that the potential wider availability of X rated material throughout the States be considered as outside the constitutional powers or responsibility of Federal Parliament.
  • that objective research, rather than personal bias or pseudo psychology, be used as the proper basis for assessing the impact of video material on human behaviour.
  • that a revision of the R category be made so as to more readily accommodate explicit sexual activity in context.
  • that an enquiry be conducted into the activities, staffing and role of the Office of Film and Literature Classification to ensure that the organisation is properly able to perform its role in an independent and objective manner.

EFA takes no position on the desirability or otherwise of a simple renaming of the X classification to NVE.

13. Bibliography

Baron, Lynn, Money, Staples, Straus and Zilbergeld, 1987, 'The Meese Commission Report Distorts The Scientific Evidence', Taking Sides: Clashing Views on Controversial Issues In Human Sexuality, Robert T. Francoeur, Ed. Guilford: The Dushkin Publishing Group, 1987: 254-263, in Guy McArthur, 'Should Porn Be Banned?', (12 Jul 1999)

Califa, Pat 1986, 'The Obscene, Disgusting, and Vile Meese Commission Report', Cultronix, 1994, (1 Aug 1999)

Carol, Avedon 199-, The Harm of Porn: Just Another Excuse to Censor,

Carol, Avedon 1994, Nudes, Prudes and Attitudes: Pornography and Censorship, New Clarion Press, Gloucester.

Felson, Richard 1996, 'Mass media effects on violent behavior', Annual Review of Sociology, v. 22. Part II, (3 Aug 1999)

Gabb, Sean 1998, The Case Against Sex Censorship: A Conservative View, Libertarian Alliance, London, 1992 (14 Jul 1999).

Graham, Irene, 1999. The X-Rated Hoax - a tale of harridans, charlatans and poppycock.

Joint Select Committee on Video Materials 1988, Report of the Joint Select Committee on Video Materials, Canberra: Australian Government Publishing Service, 1988.

Klein, Marty 1996, 'The Sex Lies of the Religious Right: How conservatives distort the facts of life', Playboy Forum, January 1996, (12 Jul 1999)

Nobile, P. and Nadler, E. (1985), United States of America vs Sex: How the Meese Commission Lied About Pornography, Minotaur Press, New York, 1985.

Petersen, Patricia 1999, Speech at Brisbane Anti-Censorship Rally, 28 May 99