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rests neither wholly with the states, nor wholly with the federal government. The Australian Constitution grants the federal Parliament that is constitutionally lawful to make laws governing communications and customs, and the federal government can therefore, under the communications power, legally regulate broadcast media (television and radio), online services (Internet), and under the customs power, the import/export of printed matter, audiovisual recordings and computer games. However, the production and sale of printed matter, audiovisual recordings and computer games solely within Australia is not within the federal powers, and thus lies with the states. However, as part of a desire to reduce duplication and ensure some national consistency, the states, territories and federal government have agreed to operate a co-operative national classification scheme. Under this scheme, the Office Of Film And Literature Classification (OFLC) (a federal body) classifies works. Federal law enforces these classifications with respect to customs, and online services. (Broadcast media are not under the purview of the OFLC, but rather a separate federal agency, ACMA.) But since the federal Parliament has no power to criminalise the domestic sale or exhibition of printed matter within the States, the States and Territories then as part of the scheme pass their own laws criminalising such sale and exhibition. However, although they have delegated their censorship responsibility in general to the Commonwealth, they reserve the legal right to in specific cases to either:
HISTORY
CURRENT SITUATION As Of 2005 , censorship regime is largely the purview of the OFLC , a statutory body which operates independently of the Federal Government. Failure to obtain classification is an implicit ban and the OFLC occasionally refuse to give classification. All feature films, videos, computer games, and magazines that contain sexual content for commercial release are required to be submitted to this body, made up of “community representatives” appointed by the government for two-year terms. Some films (those made for educational or training purposes, for instance) are exempt from classification under certain conditions. In addition, film festivals may screen films that have not been classified, as long as they restrict entry to those 18 and over. In addition to the OFLC, the Australian Communications And Media Authority is also active in making recommendations and setting guidelines for media censorship. Confusion has recently arisen between the three bodies over censorship of Mobile Content (see below). The OFLC is NOT responsible for classifying television shows. Television is regulated by the ACMA, and the content of free-to-air commercial television is industry-regulated under the Australian Commercial Television Code of Practice. However, the OFLC does administer the classification of TV programmes for private sale (eg. DVD and video), using the same rating classes and advisory graphics as for feature films. Feature films The classification system for visual content is largely standardised for television, videos, and feature films. The current guidelines, which have changed relatively little over the past few years, may be summarised as follows:
Initially introduced solely for feature films and games, the icons shown above have been in use by Australian Television Networks since February 2006 . Television Although not regulated by the OFLC, television classification guidelines are similar, but not identical as many TV shows and films are given harsher or more lenient classifications when broadcast on television Commercial Television Industry Code of Practice . "Classification Zones 2.6 The following classification zones apply to all material required to be classified (whether under the OFLC Guidelines or the Television Classification Guidelines).". News and current affairs programs are exempt from classification. P rated material is intended for preschoolers. C rated material is intended for children. It is similar to the '''G''' and '''PG''' classifications in terms of film content. G rated material is deemed suitable for general exhibition. PG rated material recommends parental guidance for young viewers. PG rated material cannot be screened between 6am and 8:30am and between 4pm and 7pm on weekdays. It also cannot be screened between 6am and 10am on weekends. M rated material is recommended for mature audiences. M rated material can be screened any time between 8:30pm and 5:00am, and may also be screened during the day between 12:00pm and 3:00pm on schooldays. Many films are censored in order to meet the PG, or M guidelines in order for commercial stations to air them at an earlier timeslot. and There are two 15+ ratings, MA15+ and '''AV15+'''. Both are not suitable for people under 15, but this is not legally restricted as TV is a Broadcast medium. MA15+ rated material can be shown between 9:00pm and 5:00am. The AV15+ rating signifies that the program contains significant violence, and may only be shown between 9:30pm and 5:00am. Note: R18+ rated material is sometimes shown on broadcast television in Australia such as '' Eyes Wide Shut '', '' Basic Instinct '', '' Pulp Fiction '', and Kill Bill . However, such films are usually edited to make the films more appropriate for an M, MA15+ or AV15+ audience. Incidently, Australian broadcast television is considerably more relaxed about sex and coarse language than the American networks. Subscription Television On subscription television, some channels have been able to carry R18+ rated material:
General entertainment channel Arena was unable to show the uncut R18+ rated version of subscription television service “TransTV Digital”. Enforcement of classification laws is through an agreement between the Federal and the eight state and territory governments, so the ''federal and state police'' would be involved in the arrest and prosecution of anybody violating the classification laws. There is one exception with high rating movies on free-to-air TV: the Special Broadcasting Service (SBS). News and current affairs News and current affairs programs shown on TV are exempt from classification. Books Levels of censorship of books are not all that high in Australia. Usually only certain types of prohibited pornography, serious encouragement of crime and instruction on suicide are banned from publications in Australia as recent history has shown.http://libertus.net/censor/auscensor.html Although the Office of Film and Literature Classification Guidelines state that “adults should be able to read, hear and see what they want”, many books are apparently banned simply because they may offend certain segments of the population. Under particularly frequent attacks are books containing Erotica , and those concerning illegal Drug s. Enforcement of book bans is sometimes sporadic. In their book TiHKAL , Dr. Alexander and Ann Shulgin state that their earlier work PiHKAL , which was banned in Australia, was apparently standard issue among police and lawyers attending a court case in which Dr. Shulgin served as an expert witness for the defense. The Melbourne bookstore Polyester Books, which stocks unusual books of many genres, has been raided by police on two occasions for violation of censorship laws. In addition, several adult book stores have been raided by more than 60 police in Sydney. Australian customs also actively seeks and seizes books imported by individuals. Video pornography All the states actually go further than Commonwealth law requires and ban the sale of X18+ rated material, though possessing it and ordering it from elsewhere is quite legal. Therefore, all legal sale of X18+ rated material in Australia occurs by mail order from the Northen Territory and the Australian Capital Territory . In practice, sex shops commonly carry extensive stocks of X-rated films regardless of the law. Restrictions on the “X18+” category of videos were tightened Office of Film and Literature Guidelines (2000). "2 Films (except RC films) that: (a) contain real depictions of actual sexual activity between consenting adults in which there is no violence, sexual violence, sexualised violence, coercion, sexually assaultive language, or fetishes or depictions which purposefully demean anyone involved in that activity for the enjoyment of viewers, in a way that is likely to cause offence to a reasonable adult; and (b) are unsuitable for a minor to see" in 2000 including the restrictions on portrayal of fetishes, and of actors who appear to be minors, after failed attempts by the Howard government to ban the category entirely, and then replace it with a new “NVE” category which would have had similar restrictions. The Internet See Also: Internet censorship in Australia Australia’s laws on Internet censorship are, theoretically, amongst the most restrictive in the Western world. However, the restrictive nature of the laws has been combined with almost complete lack of interest in enforcement from the agencies responsible. Some of the interesting exceptions include an attempt by then NSW Police Minister Michael Costa to shut down Melbourne Indymedia , a case in 2001 involving the US Secret Service that was eventually pleaded out and an attempt by the FBI using the Australian Federal Police to censor a Victorian they alleged was posting threats to the USA. A collection of both federal and state laws apply, but the most important is the federal legislation which came into effect on January 1, 2000. If a complaint is issued about material on the Internet, the ACMA is empowered to examine the material under the guidelines for film and video. If it is found that a) the material would be classified R18+ or X18+, and the site does not have an adult verification system, or b) the material would be refused classification:
This list of banned sites is then added to filtering software, which must be offered to all consumers by their Internet Service Providers. Consumers are not legally required to install such filtering software. Video games Controversy in the early 1990s over games like Night Trap and Mortal Kombat saw the introduction of a classification scheme for video games in 1994, which stands as follows: There is no R18+ or X18+ rating for video games, meaning that any game that exceeds the MA15+ classification would be automatically ''Refused Classification'' and banned. In the past, computer games faced tougher guidelines than their film counterparts. Nudity of any description was not allowed, nor was sexual activity. In 1997, '' Duke Nukem 3D '' was refused classification despite the fact the earlier Shareware version was passed uncut with an MA15+ rating Duke Nukem 3D Shareware version released as MA15+. . The distributor proceeded to sell the game with a self-censor feature permanently on, but the uncensored data was still on the game disc, and soon the majority of the country was playing the uncensored version of the game. Duke Nukem 3D Full Version released (censored) as MA15+. The OFLC tried to have the game pulled from shelves, but it was discovered that the distributor had notified them of this fact and the rating could not be surrendered, so the game was later reclassified and released uncensored with an MA15+ rating Duke Nukem 3D Full Version re-released (uncensored) as MA15+. . The next year, the interactive CD-ROM game ''Tender Loving Care'' was banned Tender Loving Care Refused Classification. , but when the exact same game was also issued as an interactive DVD it received an MA15+ classification without any problems. This situation was changed in 2003, with film and computer games now sharing the same guidelines. The Grand Theft Auto series has also been targeted. In 2001, '''' was originally passed completely uncut in 2004 with an MA15+ classification Grand Theft Auto: Vice City MA15+. , but the infamous “Hot Coffee” mod lead to the MA15+ being revoked and the title was pulled from the shelves at a later date Grand Theft Auto: San Addreas Classification Revoked. . The game was later re-issued without the hidden sexual content, and received its former MA15+ rating Grand Theft Auto: San Andreas re-released MA15+. . Another title to be banned Manhunt Refused Classification over a year after its initial release Manhunt MA15+ was ’’ Manhunt ’’. This did not involve the discovery of any hidden material, the game was simply reclassified due to complaints from a government minister. was banned in 2005 on the grounds that it encouraged crime OFLC Full Board Review of Mark Ecko's Getting Up. . The game's premise was a future world where freedom of expression is suppressed by a tyrannical city government, and to win the game, the player had to express his message through graffiti. The lack of R18+ and X18+ ratings for games has been the subject of complaint in the gaming community, particularly on the basis that there is no reason why adults should not be able to see content in games that they would see in a film. The nine governments concerned seem unlikely to change the policy in the short term, despite a line in the OFLC guidelines stating that adults may hear, read and see what they wish. Music Music is mainly regulated by the Australian Recording Industry Association and the Australian Music Retailers Association. The classification scheme was introduced on October 31 , 1996 with the following three levels:
These recordings contained explicit language, whether used as expletives or otherwise, in the lyrics or spoken dialogue.
These recordings contained higher impact explicit and language and/or dealt with issues which may have offended some sections of the adult community. There was no restriction on sale to persons under the age of 18.
These recordings contained lyrics which explicitly and gratuitously dealt with and promoted, incited or instructed in matters of hard drug abuse, criminal violence, sexual violence, bestiality, incest, child abuse, and being abhorrent activity. They were refused classification as 18+ and not permitted to be sold. The classification scheme was reformed and introduced on April 1 , 2003 , with the follwing four levels:
These recordings contain infrequent aggressive or strong coarse language and moderate impact references to drug use, violence, sexual activity and/or themes.
These recordings contain frequent aggressive or strong coarse language and strong impact references to (or detailed description of) drug use, violence, sexual activity and/or themes.
These recordings contain graphic descriptions of drug use, violence, sexual activity and/or themes which are very intense and have a high impact. They are not to be sold to anyone under the age of 18, and ''proof of age is required'' to purchase them.
These recordings contain lyrics which promote, incite, instruct or depict drug use, violence, sexual activity, themes and/or any other abhorrent activity in a manner that would cause outrage and/or extreme disgust to most adults. They are not permitted to be released, distributed or sold to the public. The new classification system has cleared up ambiguity and has also added a level that (although restricting sales to those 18 and over) has allowed previously banned recordings onto store shelves. However, it is worth noting that these classifications & guidelines carry absolutely no legal ground & are strictly self regulated ARIA Guidelines . Music Artwork Another censored area in music is in the area of CD/record artwork and published lyrics, and some bands, ''even those from Australia '', censor song titles or lyrics themselves to avoid legal trouble. On May 15 , 2003 , 207 copies of the CD ''Avagoyamugs'' by the Australian Goregrind band Intense Hammer Rage were seized by the Australian Customs Service because of the extreme cover artwork and printed lyrics about Child Pornography and other illegal acts. The three members of the band, Allan Phillip Byard, Christopher Mark Studley and Bradley Maxwell Rice, were charged with a total of seven offences. Byard was charged with importing a prohibited import, selling a prohibited import, and possessing a child abuse product, while Studley and Rice were charged with importing and selling a prohibited import. Byard was fined a total of $1750 over the importation of the CDs and possession of a child abuse product, while Studley and Rice were fined $500 each in the Burnie Magistrates Court over the importation of the CDs (the other three charges are currently being heard). The CD was classified "Exceeding Level 3" and all copies seized have been destroyed When Tasmanian band Intense Hammer Rage sent their latest album to be manufactured by a US record label they had no idea they'd be prosecuted for importing the finished product back into Australia. . Racial vilification laws Political speech Even though the nation prides itself in freedom, Australia lacks an explicitly protected form of freedom of speech. Some individuals possess limited forms of free speech, such as parliamentarians in session, University lecturers in a lecture, or people speaking in a designated domain for speeches. In the late 1990s the High Court Of Australia found that there was an implied right of free speech in relation to political or economic matters Free Speech and The Constitution Libertus.net Free Speech Rights and Australian Law NATIONWIDE NEWS PTY. LIMITED v. WILLS (1992) AUSTRALIAN CAPITAL TELEVISION PTY. LIMITED AND OTHERS and THE STATE OF NEW SOUTH WALES v. THE COMMONWEALTH OF AUSTRALIA and ANOTHER (1992) THEOPHANOUS v THE HERALD AND WEEKLY TIMES LIMITED AND ANOTHER F.C. 94/041 Constitutional Law (Cth) - Defamation (1994) STEPHENS AND OTHERS v WEST AUSTRALIAN NEWSPAPERS LIMITED F.C. 94/040 Constitutional Law - Defamation (1994) CUNLIFFE AND ANOTHER v THE COMMONWEALTH OF AUSTRALIA F.C. 94/039 Constitutional Law (Cth) (1994) David Russell Lange v Australian Broadcasting Corporation Levy v The State of Victoria & Ors In addition to explicit law, Australia has stringent defamation laws which effectively extend to cover the globe (see: Gutnick V Dow Jones ). As of 2006, parody and satire is now legally protected in Australia after the government introduced amendments to the country's copyright laws. Copyright Amendment Bill 2006 . Explanatory Memoranda: "New sub-s 200AB(5) covers uses for parody and satire. This use does not have a non-commercial advantage condition in recognition that parody and satire may take place in the commercial media or other commercial setting. The conditions contained in sub-s 200AB(1) provide appropriate protection for the copyright owner against ‘free-riding’ for profit or gain." Thus eliminating the possibility of censorship occurring in such a circumstance, as has previously taken place. More information regarding these amendments can be found on the attorney generals department website (http://www.ag.gov.au). Creative arts In 2004, the Australian Centre For The Moving Image was responsible for the censorship of Australian female artist’s work which they had actually commissioned. Videoed images of the artist nailing her body to a tree were reduced in quantity and scale for final presentation to the public, against the artist’s consent. In 2004 , Experimenta refused to include the artwork ‘The Empty Show’ in the publicly installed version of the House of Tomorrow exhibition (it remains on the net.art website Experimenta House of Tomorrow Exhibit ) due to images of illegally stencilled graffiti which depicted Mickey Mouse with drugs. The issue of Mickey Mouse being defamed was considered the risk, not the drugs. This censorship was known only to the organisers and the artists involved, and thus comprised a form of self-censorship. Other Australian artists have received funding from public funding bodies, only to discover that their works are too controversial to be shown in this country, notably George Gittoes , whilst still being shown freely overseas. The Human Rights and Equal Opportunity Commission Act of 1986 discusses the right to freedom of expression. Mobile content In early 2005, the OFLC began to explore options for the development of guidelines restricting Content Delivered Via Mobile Telephones . The Australian Broadcasting Authority released official guidelines for the restriction of mobile content which were intended to be in place for a trial period of 12 months. No penalties were advised for breaches of these guidelines, as it was expected that the largest mobile operators would adhere to them. Within days of the release of these guidelines, the Australian Communications Authority announced that:
These laws affect SMS, picture and video services, but they do not affect live, streamed content, which is loosely regulated under the same guidelines as control live broadcasting on public television. The ACMA took over the control of content when it was formed in 2006 by the merger of the ABA and ACA ACMA Regulation of Mobile Premium Services. . RECENT CONTROVERSIES Heated debates about classification occur on occasions, however the outright banning of films is quite rare. Since 1995 , a total of five films have been banned, a notable example being '' Salò O Le 120 Giornate Di Sodoma ''. However, starting in 2000 with the film '' Romance '', a new crop of “arthouse” films that feature short scenes of actual sex have begun to attract closer scrutiny and in two controversial cases have been banned. The two banned films are:
Baise-Moi was riginally given a R18+ Classification by the OFLC OFLC Classifies Baise-Moi R18+. , however, this was overturned by the OFLC Classification Review Board some 6 months later after the Attorney General of the time, The Hon Daryl William AM QC, used his powers under Section 42(1)(a) of the Classification (Publications, Films and Computer Games) Act 1995 . Classification (Publications, Films and Computer Games) Act 1995 42. The persons who may apply for review (1) Any of the following persons may apply to the Review Board for a review of a decision: (a) the Minister; (b) the applicant for classification of the publication, film or computer game concerned or the applicant for approval of the advertisement concerned; (c) the publisher of the film, publication or computer game concerned; (d) a person aggrieved by the decision Classification. to request a Review of the classification. The banning of ''Ken Park'' has attracted considerable media attention and political protest. Prominent movie reviewer Margaret Pomeranz , former host of '' The Movie Show '' on SBS and now host of '' At The Movies '' on ABC , was arrested (and later cautioned and released) along with several others after attempting to screen what she described as “a wonderful film” at a hall World Socialist Web Site report into the screening of Ken Park. . Tom Gleisner , host of '' The Panel '' (a prime-time comedy/panel discussion show), openly admitted on the show that he had downloaded and watched the film. Former New South Wales Premier Bob Carr has stated that he thinks that the banning of ''Ken Park'' and other films is inappropriate, and his Attorney-General Bob Debus will discuss changing the laws with other state Attorneys-General at an upcoming meeting. The use of criminal contempt of court proceedings in February 2006 by Melbourne businessman Dean McVeigh to shut down a website critical of him has attracted criticism and public attention Sledgehammer style fails to silence a critic - Dean McVeigh Vs Cass. .
UPWARDS REFERRAL The Australian Broadcasting Corporation operates a system called ‘Upwards Referral’ which is Bureaucratic Censorship. When a subject becomes ‘too hot to handle’ or is deemed potentially challenging, the issue is referred to upper management within the organization. An example of this occurred in November 1988 on the show “Blah Blah Blah”, when one episode which featured full frontal male nudity by the musical group Lubricated Goat . The incident was repeatedly upwardly referred throughout the ABC Management Hierarchy, and after heated debate, some footage was edited from the final show. A full account of the ‘Upwards Referral’ process is featured in the documentary In The Raw . SEE ALSO
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