The Federal Parliament has the power under the Australian Constitution to make laws relating to communications and customs. Under the communications power the federal government can regulate the 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 lies with the states.
However, to reduce duplication and ensure some national consistency, the states, territories and federal government have agreed to establish 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 in specific cases to either:
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. Film festivals and institutions such as ACMI - Australian Centre for the Moving Image must apply to the OFLC to have the films on their proposed program made exempt from classification for the purpose of screening at a particular film festival or event. If the OFLC believe an unclassified work, in their estimation would receive an X18+ classification if it were to be classified they will not grant an exemption for public screening as an X18+ cannot be exhibited. Film festivals may be required to age-restrict entrance to a festival or screening.
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.
|The “E” rating indicates material that is exempt from classification.|
|The “G” rating indicates material that is suitable for all ages. Violence must “have a low threat and be justified by context”, sexual activity, nudity and drug use may only be “very discreetly implied”, and coarse language must be “very mild and infrequent”.|
|The “PG” rating recommends parental guidance for young viewers. It is more relaxed in all categories. Violence should be mild and infrequent, and drug use and nudity should be justified by context. Coarse language must be mild and justified by context. This category allows the use of words such as "shit" and "bitch".|
|The “M” rating is recommended for mature but relatively young audiences. Language is moderate in impact, allowing the use of words such as 'fuck,' but "aggressive or strong coarse language" should be infrequent, and sex may be moderately implied. Sexual violence must be limited. Drug use can be depicted in context. This is the highest unrestricted rating.|
|The “MA15+” rating is restricted to those 15 and over meaning those under 15 cannot legally view the film without being accompanied by a parent or legal guardian. It may contain strong bloody violence if justified by context, strong implication of sexual activity, and strong impact coarse language (though “very coarse language” should be infrequent), and “strong themes”.|
|The “R18+” rating is restricted to those 18 and over, meaning those under 18 cannot legally view the film. Themes, violence and coarse language are virtually unrestricted however sexual violence must be “justified by context”, and sexual activity can be “realistically simulated”. This is a general guideline rather than an explicit rule; films such as 9 Songs, The Brown Bunny and Romance contain real sexual activity.|
|The “X18+” rating is restricted to people over 18. It can apply to all types of genre, not just depict explicit non-simulated sexual activity, however all activity must involve only adults in terms of the performers’ age and the perceived age of the characters, must not demean any of the participants, and must not involve the depiction of “sexual fetishes such as golden shower(s), application of candle wax, spanking, or fisting”. This can only be legally sold in the Northern Territory and the ACT, but it is legal to purchase such films interstate via mail order.|
Initially introduced solely for feature films and games, the icons shown above have been in use by Australian television networks since February 2006.
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. However, younger children can still view it in cinemas but not recommended.
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. If it is being viewed in a cinema, an adult must accompany a child if it is under 15.
Note: R18+ rated material is sometimes shown on broadcast television in Australia such as Eyes Wide Shut, Basic Instinct, Pulp Fiction, The Godfather and Kill Bill. However, such films are usually edited to make the films more appropriate for an M, MA15+ or AV15+ audience. Incidentally, Australian broadcast television is considerably more relaxed about sex and coarse language than the American networks.
General entertainment channel Arena was unable to show the uncut R18+ rated version of Reservoir Dogs after promoting it heavily in 1998. Arena eventually decided not to air the movie at all, claiming they were unable to cut the movie to meet an MA15+ rating. X18+ pornography is legally shown in the ACT on TransACT's 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).
There is also a voluntary Code of Practice covering the advertising industry.
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 drugs.
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.
In recent contemporary teen novels, many had been banned due to the promotion of meeting strangers online through chat rooms and then meeting them real life.
Restrictions on the “X18+” category of videos were tightened 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.
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 Internet Service Providers and the Australian Government.
On December 31, 2007 the Telecommunications Minister of the newly elected Labor government, Stephen Conroy, announced that Australia would introduce mandatory internet filtering from which one may opt out. Once more the reason given is that mandatory filtering is required to "provide greater protection to children from online pornography and violent websites". Link: http://www.abc.net.au/news/stories/2007/12/31/2129471.htm
The announcement does not clarify whether, for example, news sites detailing the recent assassination of Benazir Bhutto's would be blocked under the Labor government. It shall be possible to opt out of the 'mandatory' filtering but it remains unclear if citizens opting out of the filtering scheme would, for example, be monitored by government agencies.
Lawyer internet statements concerning personal injury compensation are censored (see below: Censorship of Personal Injury Compensation).
|The “E” rating indicates material that is exempt from classification. Games exempt from classification usually include online titles (such as The Sims Online and World of Warcraft) in which the content cannot be regulated, and educational games.|
|The “G” rating indicates material that is for general play. Violence must “have a low threat and be justified by context”, sexual activity, nudity and drug use may only be “very discreetly implied”, and coarse language must be “very mild and infrequent”.|
|The “PG” rating recommends parental guidance for young players. It is more relaxed in all categories. Violence should be mild and infrequent, and drug use and nudity should be justified by context. Coarse language must be mild and justified by context. This was formerly known as "G8+", but was changed to PG to be consistent with film ratings.|
|The “M” rating is recommended for mature but moderately young audiences, around the teen years. Language is relatively free, but “aggressive or strong coarse language” should be infrequent, and sexual innuendo is freely thrown around and sex may be mildly implied, and there is slightly more violence present. Sexual violence is not allowed. Drug use can be depicted in context. This was formerly known as "M15+", but was changed to M to be consistent with film ratings. This rating is not restricted.|
|The “MA15+” rating is restricted to those 15 and over meaning those under 15 cannot legally play or buy the game without being accompanied by a parent or legal guardian. It can contain strong gruesome violence if justified by context, strong implication of sexual activity, much coarse language (though “very coarse language” should be infrequent), and “strong themes”.|
In the past, computer games faced tougher guidelines than their film counterparts. Nudity of any description was not allowed, nor was sexual activity.
In 1996, Duke Nukem 3D was refused classification because of the presence of minor nudity in a section of the game. It was modified so that it was sold with the parental lock on, removing the nudity, but a mix-up meant that the unlocked content was sold on the game's disc. This led to the majority of the Australian player base gaining access to, and playing, the banned version of the game. The OFLC attempted to have the game recalled, since the version that was being sold was functionally the version that was refused classification. The OFLC was unsuccessful, however, because the distributor had notified them that the uncensored content was on the disc when the modified version was classified. Six months later, the unmodified version of the game was officially reclassified as MA15+, and was allowed for sale throughout Australia.
In 2002, Australia banned Grand Theft Auto III for allowing certain actions against virtual prostitutes; the game was later reinstated when this action was removed. Specifically, the player could solicit services from a virtual prostitute, and then kill her. The ability to solicit sex from prostitutes in the game was the action that was removed, but the player could still violently murder them. The sequel, Grand Theft Auto: Vice City was also modified for the same reasons, and in the same way for release in the Australian market. Similarly, Grand Theft Auto: San Andreas was banned in July 2005 following the revelation that sex scenes were included in the content files on the game's disc. Ordinarily, one could not access these scenes, but third party modification, known as the Hot Coffee mod, allowed the player to access these scenes within the game itself. The inclusion of the scenes on the game disc took the game outside the MA15+ category. The MA15+ rating was re-instated after a modified version was released by Rockstar Games, omitting the content files for the sex scenes.
In 2005 the game 50 Cent: Bulletproof was banned for encouraging gang violence (a version without the game's Arcade Mode and excessive gore, and with an automatic Game Over for killing innocents was later submitted and given an MA15+ rating), and Marc Ecko's Getting Up: Contents Under Pressure was also banned for glorifying illegal graffiti tagging. Reservoir Dogs was banned because the Australian government disliked the fact that the player was able to shoot the heads off of hostages during a bank heist.
The most recent video game of the Grand Theft Auto series, Grand Theft Auto IV, has also prompted editing in the Australian (PAL) version. In the American release, sexual encounters with prostitutes occur inside the player's vehicle and the player has the ability to rotate the camera for clearer view of what transpires. This ability is absent in the Australian version in which the camera is fixed behind the vehicle.
On July 4, 2008, Fallout 3 was refused classification by the OFLC in Australia. In order for the game to be reclassified, the offending content in the Australian version of the game would have to be removed by Bethesda Softworks and the game resubmitted to the OFLC. According the OFLC board report, the game was refused classification due to the "realistic visual representations of drugs and their delivery method (bringing) the 'science-fiction' drugs in line with 'real-world' drugs." A revised version of the game was resubmitted to the OFLC and reclassified as MA 15+ on August 7, 2008. Although the drug content itself was not removed entirely from the revised version of the game, the animation showing the actual usage of the drugs was removed.
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. One of the main opponents to the introduction of a R18+ rating for video games is the South Australian Attorney-General Michael Atkinson who has vetoed every attempt to induce one. Although recently Australian video game show Good Game announced that a meeting of the Attorneys-General in March 2008 resulted in a decision that the Australian public would be consulted before a final decision on the status of a R18+ rating for video games would be made.
These recordings contain infrequent aggressive or strong coarse language and moderate impact references to drug use, violence, sexual activity, themes and/or any other abhorrent activity.
These recordings contain frequent aggressive or strong coarse language and strong impact references to (or detailed description of) drug use, violence, sexual activity, themes and/or any other abhorrent activity.
These recordings contain graphic descriptions of drug use, violence, sexual activity, themes and/or any other abhorrent activity that are very intense and have a high impact. They are not to be sold to anyone under the age of 18; proof of age is required to purchase these recordings.
These recordings contain lyrics which promote, incite, instruct and/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.
However, it is worth noting that these classifications & guidelines carry absolutely no legal ground & are strictly self regulated.
On May 15, 2003, 207 copies of the album 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 CD was classified "Exceeding Level 3" by ARIA (the only such CD to date) and the three band members were charged with a total of seven offences by the Australian Federal Police and the Tasmanian Police:
At the conclusion of the case in the Burnie Magistrates Court, the three were convicted on all charges: Byard was fined a total of $2250, while Studley and Rice were each fined a total of $1000. The seized CDs have since been destroyed.
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. 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).
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 ) 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.
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.
The censorship must be self administered and breaches render a lawyer liable to prosecution, dis-baring and potentially, even jail. The laws under which the censorship arises are designed to protect insurance company profits and reduce payouts to injury victims.. These laws coincided with the Insurance Crisis, the Ipp report and Civil Liability laws.
In New South Wales all lawyer public statements concerning personal injury compensation are prohibited.
The Queensland censorship provisions were originally intended to ban distasteful advertisements by some personal injury law firms that promoted “cash for injuries”. The Queensland Attorney-General stated in his Second Reading speech when introducing the legislation in 2002 as follows:
The bill also better regulates provocative advertising by lawyers in relation to personal injury services ... the sort of advertising currently broadcast on radio and television does not enhance clients’ rights or portray the profession in a particularly positive light.
Section 4 (2) (f) of the Queensland Act refers to "regulating inappropriate advertising..."
However the Queensland government has since given the censorship provisions the strictest possible interpretation and threatened hundreds of lawyers with prosecution.
One of the many outcomes that impact on freedom of expression and free speech is that concerning lawyers’ web sites. A lawyer must not even list "personal injury" even merely as a link on a webpage that has no relation to the prohibited subject matter.
In practice, lawyers are prohibited from listing even on their website homepage some of the areas of law they practise in. Photos, images, slogans are prohibited. All references to personal injury compensation law must be censored out of website staff profiles containing anything more than the person’s name, contact details and area of expertise.
Some other subject matter that must be censored out of web sites and other publications includes: winning verdicts and settlements; mention of the law firms reputation, expertise and history; testimonials; case histories; the standard of service and many other things that would allow consumers to differentiate among competitors.
The Queensland censorship provisions have not yet been judicially interpreted. It is unknown whether the ultra-strict interpretation contended for by the Queensland government will be upheld by a court.
The New South Wales version of the censorship law which is stricter than that of Queensland was considered by the High Court of Australia in 2005. The plaintiffs argued that the law was invalid because it infringed the implied constitutional freedom of political communication and secondly that it infringed Chapter III of the Constitution and the rule of law.
In a majority decision the court held that the New South Wales censorship law was valid. It did not accept that statements merely about personal injury compensation law were of a political nature. It implied however that any statements criticising the censorship itself and tort "reform" would be in the nature of political communication that was protected. The majority also ruled against the plaintiffs on the second argument (but the minority were strongly of the view) that the law unreasonably interfered with lawyers going about their constitutionally protected vocation.
On 20 June 2008, Justice Adams of the Supreme Court of NSW held that clause 34 of the Legal Profession Regulation 2005 which bans personal injury advertising in NSW by non-lawyers, was void because it was Ultra Vires the Legal Profession Act 2004. See: The Council of the Law Society of NSW v Australian Injury Helpline Ltd & Ors  NSWSC 627.
Consumer groups (eg. Tort Reform Institute, Insurance Reform) argue that any restriction on lawyer communication is adverse to the public interest. They argue that the public should be fully informed about their rights particularly under consumer protection laws that generate compensation payments, and that censorship that keeps the public under-informed cannot be justified. In their view, the protection of insurance company profits is not a sufficient "public purpose" to warrant the interference in personal freedoms by way of censorship. The ultimate aim of the government and insurers, according to such consumer groups, is to eliminate the expression "personal injury compensation" from the Australian vocabulary and to dissuade citizens from exercising compensation rights by making it "distasteful" to do so.
Exceptions to the censorship provision apply to:
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 originally given an R18+ classification by the OFLC, 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 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.
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.
In 1992, Island World Communications Ltd and Manga Entertainment Australia Ltd had Urotsukidoji: Legend Of The Overfiend submitted to the OFLC. It was the first animated feature to be banned in Australia and the feature was banned outright like the Violence Jack OVA's which were also released by Manga Entertainment Australia and Polygram Australia. Urotsukidoji was then censored to meet the OFLC's standards. The Australian version is the most censored in the western world, with many fans of Anime importing uncensored versions of Urotsukidoji: Legend Of The Overfiend from the UK. The rest of the Urotsukidoji series was censored in Australia, with many still importing or downloading the Amercian versions of the Urotsukidoji series.
In 1997, the former Attorney - General Phillip Ruddock had the OFLC review Manga Video Australia's, Ninja Scroll. It was originally released in 1994 in Australia by Manga Entertainment Ltd. Australia and had the MA15+ rating on the VHS originally, but this was overturned in 1997 when Phillip Ruddock had the anime reviewed and banned in Australia after an uncut screening of the movie on SBS. A few months later it was given the R18+ rating and was uncut, then edited and edited again, eventually using the BBFC cut of Ninja Scroll. This was overturned in 2003 when Madman Entertainment and Manga Entertainment Ltd. released the uncut version.
Violence Jack Volume 1 was banned outright, and Manga Australia and Polygram decided not to release Violence Jack in Australia.
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.
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.