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New censorship scheme missing that vital X factor

28 January 2012 9,248 views 3 Comments

AFTER taking a record number of public submissions, the Australian Law Reform Commission has now released its final discussion paper on a new Classification Scheme.

The ALRC has come up with 44 proposals to reform classification and official censorship in Australia. Chief among these is a new Classification of Media Content Act. The main thrust of the commission’s proposals is that the online media environment has fundamentally changed the way that people access media and that soon it will be possible that all media will be available on one screen. Therefore the nature of the delivery platform, as a part of the censorship equation, has become irrelevant. At this point in the development of online technology, content becomes the overriding criterion for classification and it needs to be judged similarly whether it turns up on a mobile phone, DVD or computer, or in a book.

Most of what the ALRC has suggested makes a lot of sense, including the addition of new classification categories of C for Children, PG 8+ and T 13+ for teens. Dropping the M for Mature category also makes sense, as would removing the legal requirement to enforce age on the MA15+ classification. This is because trying to regulate age requirements on people accessing MA15+ material on a website would be impossible to enforce online.

What doesn’t make sense is the suggestion that Australia’s restricted publications (Category 1 and 2) both become X-rated. The last time I looked, the X rating was banned in most states. So why is the ALRC suggesting the modern day equivalent of book-burning for anything nude and rude on paper? Why would the federal government, in Section 9 of the report, seek to ban categories of books and magazines that have been around for 30 years?

It is also somewhat disturbing to see that, while the ALRC was being bold and brave about suggesting all these new classifications, when it came to the X classification they went weak at the knees and stated in Section 6: “If the Australian government decided to keep the X classification … ” Why would they not make a recommendation about this category as they have for many others? The fact is, they advised the federal government to introduce a new C for Children and T for Teen category. So why not recommend that X be legal in all jurisdictions as well, so they can achieve the truly uniform and consistent national scheme they say they want?

Let’s be clear about this. Unless there is agreement from the states to relinquish their enforcement powers on classification, the new act could end up being plagued with the same old problems that has beset the current one. If the federal government adopts the major recommendations of the inquiry and the states still insist on denying their citizens the right to have legal X18+ films, then the two-tiered system of censorship will still exist. Queensland will want to keep its bans on adult publications, WA will back away from R-rated games, and the states will fragment into little enclaves of censorship without being uniform.

Communications Minister Stephen Conroy is on record as saying that X18+ material will not be made illegal online. But how can we have a product legal on one platform (the internet) and at one level of government, while remaining illegal on another platform (DVD) and at another level of government? If this is the upshot of a million-dollar inquiry into modernising our classification system then it will have been a waste of time and taxpayer money. This is because as soon as one classification is allowed to stand outside the uniform classification system, others will follow, and further fragmentation occur.

There are issues here for both state and federal governments. Under the Trade Practices Act it may be illegal for a government to make a product legal on one platform but illegal on another, and the National Competition Commission has already stated its concern about this aspect of classification policy.

WA Attorney-General Christian Porter has already sent a submission of his own to the inquiry, stating categorically that he will not rescind his bans on the X classification no matter what the ALRC recommends.

Frankly, I believe that politicians who are in positions of influence regarding the issues being inquired about should not be allowed to comment or make submissions until after the final recommendations have been delivered. The potential for Porter’s comments to unduly affect both the ALRC final recommendations as well as members of the public sending in their own submissions is not insignificant.

The final document that the ALRC places in front of federal Attorney-General Nicola Roxon will, if enacted, oversee Australia’s classification and censorship agenda until at least 2030. The fact that she has young children will inevitably form part of her personal response to the inquiry’s recommendations. Paul Keating’s response to his children’s viewing habits formed part of changes to the Classification Act; no doubt many other politicians of childbearing age use their own family morality meters to guide their moral compass when helping run the ship of state. However, as much as they want to protect children, the easily offended and the very religious, they also need to come to terms with the fact that most adults believe that sexual depictions are part of our media diet and are here to stay. Sexual media will always be the tail that wags the dog in any discussion or inquiry into media and entertainment.

It’s always complaints about sex, not violence, that spark inquiries in this area. It says a lot about our politicians that, while they have commissioned community standards reviews of all other classifications in Australia, they have never commissioned one on the sexual categories. Such a survey would be a useful starting point for Roxon and the states to understand the popularity of sexual media in this country.

Indeed, it could help persuade the states to come on board with a new scheme or suffer the death by a thousand cuts to their censorship laws at the hands of Conroy.

Under the Constitution, the commonwealth has the head of power relating to national communications, while the states hold the head of power concerning regulation of goods and services. If the states say no to the ALRC’s suggestion to have them relinquish their classification enforcement powers so that a truly uniform national scheme can emerge, then the federal government, using its communication powers, may well act to undermine state laws and allow the internet sale of X-rated material in all our states.

Emeritus Professor of History and Politics at Griffith University, Ross Fitzgerald’s most recent book is the co-authored sexual/ political satire ‘Fools’ Paradise: Life in an Altered State’, published in Melbourne by Australian Scholarly Publishing.

The Weekend Australian, January 28-29, 2012

3 Comments »

  • Nils Runeberg said:

    Ross,

    According to a comment by “ALRC legal team” on the discussion forum on international classifications on the ALRC’s website, the ALRC “didn’t mean to suggest that adult magazines should be illegal”, going on to ask “Couldn’t those magazines be required to be sold with an X 18+ marking, rather than an ‘Category 1 or 2 – Restricted’ marking, even if comparable films remained illegal to sell?”. It apparently didn’t occur to them that the whole point of an X rating is that it means “banned” almost everywhere in the country.

    I’m not sure about what you’ve reported Stephen Conroy to have said, considering that he has become one of the most prominent advocates for censorship around by virtue of his policy of mandatory ISP filtering. My guess is that he was just saying that the ISP filter wouldn’t be used to block X-rated material from overseas (which would be impossible anyway thanks to the vast amounts of it out there), as it’s already illegal under the Broadcasting Services Act to publish X-rated material online in Australia. In fact, the way X-rated content is treated online – illegal to publish, legal to view – is much the same as the way it’s treated offline in most of the country.

    The real problem with the ALRC’s discussion paper (other than that it demonstrates an almost complete lack of understanding of the law, communications technology and the politics and history of censorship in Australia) is what its proposals would mean for online content. This comment box is too small to list all of the issues; if you’re interested, I can only recommend that you read Irene Graham’s submissions to the review (available on the ALRC’s website). Her style is a little hyperbolic but few people have a better understanding of the way censorship works in Australia.

    Actually I’m surprised how little attention the ALRC’s paper has got in the media, considering the radical nature of some of its proposals and the effect that they would have on anyone trying to publish anything online. It would, by the way, cover this blog.

  • Denis Eddy said:

    You have aptly defined the visible cracks in the edifice, but I suggest that ‘the elephant in the room’ remains. Focus needs to be shifted to an earlier phase of construction: where lies the need for the edifice at all?
    Still images, whether graphic or sculpted, declare most of their content at first encounter. Other media need time and at least continual, if not continuous, attention from a reader, viewer or hearer for their ‘content’ to become patent to whichever of their senses and emotions. The proposed system of ‘classification’ is demonstrably weighted toward the putative needs of legal infants, whose individual and differing needs range ftom the instinctual responses of the newly-hatched to the magical threshold of adulthood and imperviousness implied in ’18-plus’ years of age as a terminus. However, with the advent of language and the cognate growth in conceptualization and empathy as they grow, few children cannot discern or be guided in the difference between their play—families, cops’n’robbers, space-travel or whatever—and the actuality and norms of sociality. With guidance, even the tawdry and improbably staged artificiality of most pornography could be quickly appreciated by children.
    But for the exception of ‘news’ footage, ‘talking-head’ programs and an inconsequentially few other offerings, most content is simulated by actors, not ‘real’ within any rational sense of that descriptor. From a variably early age children, our under-18s, can distinguish ‘not-real’ from ‘real’ both with and without parental guidance. Their needs for guidance in any other particular during growing-up can be individually, much better and more appropriately addressed by their parents and carers than by the State and wildly speculative age-grouped ‘classification’.
    I make no claim to originality in positing that governments exist to do collectively for the citizens that they serve that which those citizens cannot individually do for themselves. Thus, for example, government should bear responsibility to provide and maintain hospitals, but not to provide medical practice or advice; to provide educational structures and facilities, but not their content or direction; and inter many alia, to maintain social order, but not to define morality or ethics. Governments are necessarily amoral, as opposed to immoral, but they have an obligation to behave ethically. The State has no supportable role in the living, i.e. the conduct, as distinct from the fact, of citizens’ lives. It has no necessary role in citizens’ bedrooms, parlours, kitchens, bathrooms or outhouses. It cannot have one, because morality and ethical behaviour develop in the immediate microenvironments of individuals. Government’s job is to safeguard a macroenvironment for its electorate as a whole. That macroenvironment contains many microenvironments of ethics, morality and propriety (amongst many other differentiating characteristics) according to the various worldviews of citizens.
    However, parents and carers, and other buyers and users of ‘media’, could be assisted in their decisions to discriminate, advise and ‘consume’ by a system of terse, factual, non-judgmental description, not classification, of the invented and simulated ‘content’ of media. That is, publication through any medium could be statutorily obliged to carry with it an accurate description of the burden of its content, on pain of prohibition of import, broadcast, exhibition, sale or other avenue of dissemination.
    If any such content should, by rational and demonstrable criteria, be found to be legally offensive—oppressive, exploitive, seditious, treasonous, fomenting national disorder, and the like, but all of them of macro- rather than micro-significance to the body politic—the appropriate place for the State to control content, to the extent that that is possible in the present world, will remain, as always, at the source rather than at the point of consumption, under relevant other legislation specific to their offending natures.

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