Australia's National Classification System for Publications, Films and Computer Games: Its Operation and Potential Susceptibility to Political Influence in Classification Decisions
| Author | Michael Ramaraj Dunstan |
| DOI | 10.22145/flr.37.1.5 |
| Published date | 01 March 2009 |
| Date | 01 March 2009 |
| Subject Matter | Article |
AUSTRALIA'S NATIONAL CLASSIFICATION SYSTEM FOR
PUBLICATIONS, FILMS AND COMPUTER GAMES:
ITS OPERATION AND POTENTIAL SUSCEPTIBILITY TO
POLITICAL INFLUENCE IN CLASSIFICATION DECISIONS
Michael Ramaraj Dunstan*
The purpose of this article is to examine Australia's regulatory system for the
classification of publications, films and computer games, the National Classification
System ('NCS'), and to question whether its classification decision process is
susceptible to political influence. Formed in 1995 as a cooperative scheme between the
Commonwealth, States and Territories, the NCS was created to overcome problems
associated with former classification schemes that operated on a non-national basis in
each Australian jurisdiction. It is argued that, although the current system is superior
to the ones of the past, it still allows, or at least perceivably allows, political influence
in censorship decision-making, as was historically the case. This is because documents
used by the Classification Board and Classification Review Board ('the Boards') to
make classification decisions are ambiguous and often inconsistent, and, even with
redrafting, would remain so without the benefit of judicial precedent. The ambiguity
created by the classification documents legitimates the possible exercise of political
influence through a variety of means.
I INTRODUCTION
Although 'censorship' and 'classification'1 are terms widely and fiercely contested in
their meaning and application in Australia, there has been to date relatively little
academic attention paid to the workings of the key feature of this country's
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* BEc (Hons), LLB (Hons), BA (Monash). This article is a revised version of a thesis
submitted in partial fulfilment of the requirements for the degree of Bachelor of Laws,
Monash University. I would like to thank my thesis supervisor Sharon Rodrick for her
diligent supervision, as well as Dr Diana Bowman, Poh York Lee, Associate Professor
Pamela O'Connor, Dr Colin Campbell, Professor Jeffrey Goldsworthy and Dr George
Gilligan from Monash University for their comments and suggestions. I would also like to
thank the anonymous suggestions made by the referees; and to thank Professor Cheryl
Saunders AO of the University of Melbourne, David Cannavan of the Queensland Office of
Fair Trading, Department of Tourism and John Peterson of the Australian Customs Service
for their assistance.
1 The more traditional term 'censorship' has now been replaced in Australian media
regulation parlance by 'classification': see, eg, Des Clark, 'Does Art Censorship Create a
More Decent Society?' (Speech delivered at the Melbourne Workers Theatre, Melbourne, 23
July 2005) 2.
134 Federal Law Review Volume 37
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classification framework, the NCS. The NCS is responsible for classifying, and
regulating the dissemination of, publications, films and computer games. The purpose
of this article is to redress somewhat this relative paucity of analysis, with a particular
emphasis on the integrity of the process of classification decision-making undertaken
under the system's scope. There are three reasons for this focus. First, classification
decisions by the Boards are often highly controversial and thus attract much
publicity.2 Secondly, the current system is now arguably the normative centrepiece of
Australia's censorship system given the use of NCS concepts and expertise by
classification institutions in other areas.3 Thirdly, the classification and censorship of
films, publications and computer games now largely take place free from the previous
check of judicial scrutiny: although the common law offence of obscene libel4 is now
codified in all Australian jurisdictions with the exception of the Australian Capital
Territory,5 it is today of marginal relevance as obscenity cases concerning material (as
opposed to behaviour) are now rarely brought before the courts.6
This article argues that, although the current system is superior to earlier models,
the NCS still allows, or at least perceivably allows, political influence in censorship
decision-making.7 Part II will give a detailed account of the current operation of the
NCS; Part III will highlight aspects of the NCS that allow for the operation of political
influence; and Part IV will offer some suggestions for reform.
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2 See, eg, the nationwide banning of the 2002 film Ken Park directed by Larry Clark and
Edward Lachman (see, eg, Philippa Hawker, 'Festival Movie Banned from Australian
Screens', The Age (Melbourne), 4 June 2003, 6); the South Australian banning of the 2004
film 9 Songs directed by Michael Winterbottom (see, eg, Nick Henderson, 'Sorry, This Film
is Banned', The Advertiser (Adelaide), 20 August 2005, 13); the 2008 Bill Henson
'controversy' (see, eg, David Marr, 'Board Clears Henson Images', The Sydney Morning
Herald, 2 June 2008, 3); and the 2006 nationwide banning of two Islamic publications on the
instigation of the then Commonwealth Attorney-General, Mr Philip Ruddock (see, eg, 'Two
Islamic Books Banned for Inciting Terrorism', Australian Associated Press General News, 11
July 2006). This banning of the Islamic works was upheld by the Federal Court of Australia:
NSW Council for Civil Liberties Inc v Classification Review Board (No 2) (2007) 159 FCR 108.
Concerned that the Classification Review Board still permitted six other works, Mr
Ruddock introduced in September 2007 the Classification (Publications, Films and Computer
Games) Amendment (Terrorist Material) Act 2007, which created Classification (Publications,
Films and Computer Games) Act 1995 (Cth) ('Classification Act') s 9A(1), which states that a
'publication, film or computer game that advocates the doing of a terrorist act must be
classified RC' (refused classification, ie, banned).
3 See, eg, import restrictions imposed by the Australian Customs Service ('ACS') (see below n
27) and Internet content regulation (see generally Broadcasting Services Act 1992 (Cth) sch 5).
4 See generally Des Butler and Sharon Rodrick, Australian Media Law (3rd ed, 2007) 365-6;
Scott Beattie and Elizabeth Beal, Connect + Converge: Australian Media and Communications
Law (2007) 179; Crowe v Graham (1968) 121 CLR 375, 379 (Barwick CJ), 399 (Windeyer J).
5 See Paul Mallam, Sophie Dawson and Jaclyn Moriarty, Media and Internet law and Practice
(revised ed, 2005), vol 1 (at update 41) ¶1.6090.
6 Ibid (at update 41) ¶1.5790. See also Bede Harris, 'Censorship: A Comparative Approach
Offering a New Theoretical Basis for Classification in Australia' (2005) 8 Canberra Law
Review 25, 48.
7 Here, 'political influence' will be used to denote any ulterior motive for suppressing non-
criminal material that should not be considered in the execution of a public classification
duty. Such a motive could be based on personal religious, moral or ideological values of
the decision-maker or a pressure group.
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