It Can Happen Again: Urgent Enquiry Needed into Censorship Tina Kaufman March 2000 Censorship and Romance Issue 4 We may now be able to see Romance (Catherine Breillat, 1999), but what has come out of the recent censorship imbroglio is the probability of it all happening again. Australia has a Classification Act that is both conservative and open to interpretation, a regime within the Office of Film and Literature Classification that appears to be conservatively inclined, whether genuinely or because of expedience, and a federal government that enthusiastically supports such conservatism. There are a number of other films in the pipeline that could run into the same situation as Romance: there’s Tim Roth’s The War Zone (1999), a dark family drama with incestuous elements, another sexually explicit French film, Cedric Kahn’s L’Ennui (1999), and Lies (1999), a South Korean film directed by Jang Sun-woo that’s apparently very sexually confronting, featuring sado-masochism and coprophilia. And there are rumours of an attempt to re-release Nagisa Oshima’s In the Realm of the Senses (1976) without the savage cuts inflicted when it was screened in the ’70s (this has been tried several times before, last in 1992). The OFLC has recently banned a documentary on the making of porn films, and there are claims that Australia’s classification system is becoming something of a problem for overseas distributors, with films having to be cut to gain the same classification they have received in other countries. Three Kings (David O. Russell, 1999) was the latest sufferer, losing footage to gain its MA rating. Surely it’s time to put Australia’s classification system under public scrutiny. It’s quite evident from the media and public reaction to the banning of Romance that Australia’s current conservative classification regime is both locally unpopular and out of step with international trends, particularly in view of the film’s uncut release in New Zealand, the United Kingdom, France and the United States, among many other countries – and indeed its uneventful screening at the Melbourne International Film Festival last year. Equally important is the recent disclosure of questionable practices within the OFLC, including claims from a former board member that conservative classifiers have been rewarded with promotion while more liberal classifiers have had their careers put on hold. It all indicates that an enquiry into both the classification system and the current guidelines, and how decisions are being reached, is urgently needed. Censorship and the media In the four years since the new Classification Act came into operation, censorship in one form or another has rarely been out of the media, with the cutting of Hustler White (Bruce LaBruce, 1996), the rebanning of Salò(Pier Paolo Pasolini, 1975), the Lolita (Adrian Lyne, 1997) outcry, and particularly in the speculation over the federal government’s dealings with independent Senator Brian Harradine, and the concessions they were prepared to make on issues like X-rated videos, R-rated Pay TV, and television classification to obtain his vote in the Senate on crucial issues. However, the change in the censorship climate could have been perceived in the year before the Act was introduced; 1995 saw the banning of the Spanish documentary, Tras El Cristal (In A Glass Cage) (Augustin Villaronga), being imported by Queer Screen for the Mardi Gras Film Festival, and the temporary banning of Jim Jarmusch’s Dead Man (1995). Romance was refused classification on January 14 this year by the Classification Board of the OFLC, despite being described as “a serious artistic work”. It was later revealed that the film had first been seen by a panel of fourteen, and the vote was eight to six in favour of an R classification; unusually, another three classifiers were called in, including, apparently, one whose term had actually expired, and the vote became a narrow nine to eight in favour of refusing classification. On January 28 the appeal by the film’s distributor was upheld by the Review Board of the OFLC. During the furore the lobby group Watch On Censorship wrote to the OFLC calling for urgent reforms to the procedures and public accountability of the organisation. Watch on Censorship was originally formed in a public assembly at the Chauvel Cinema in Sydney in 1996 in urgent response to the unwarranted tightening of the censorship regulations. Formed as a loosely knit group of journalists, lawyers, and people working in film-related areas, WOC is currently becoming an incorporated body which will open its membership to other interested parties. It has as its object: “to protect and promote the rights of adult Australians to freedom of speech and expression in all media”. Since its formation, as the range of films Australians have the opportunity to see has become increasingly limited, and as other related issues have continued to arise, WOC has maintained its public commentary on the growing conservatism of the classification system. The new regime The Classification (Publications, Films, and Computer Games) Act came into operation on January 1, 1996, after over a decade without any censorship controversy. The new system was initially presented, and accepted, as a practical and long overdue revision of outdated practices, a re-organisation of unnecessarily complicated procedures under which the OFLC had to classify material in accordance with the regulations and classification requirements of the differing enforcement legislation of each state and territory. This process was not only exceedingly clumsy, but occasionally caused films and publications to be banned in some states or not in others, or to be released under certain conditions in some states and not in others. As well, changes or amendments had to be made to legislation in each state, often causing enormous delays. For instance, classifications for computer games were drawn up in 1993, but only a few states had actually added them to their legislations by 1996. The Director of the Classification Board, the former Chief Censor, John Dickie, described it at the time as the tidying up of a cumbersome state-based system into a national classification code: the new federal Classification Act would detail both the classification requirements and the enforcement legislation, and be supported by uniform legislation in all states and territories (which would, however, retain the right to independent action). The revised guidelines to the code, however, attached without the recommended three month public consultation process, caused the most concern at the time, with claims that they made the actual classification of film and video much more open to interpretation. Those concerns haven’t gone away. In the code the existing classifications of G, PG, M, MA, R, and X were retained, and the guidelines to each classification were subtly changed in most cases; they became a little more detailed, and were written in language which John Dickie described at the time as “user-friendly”, adding that they took into account shifts in community standards that the Board had observed. “We think that community standards are less tolerant of violence, and particularly of sexual violence,” he explained. Former Deputy Chief Censor David Haines, at the time a consultant on classification (he’s since become a producer of X-rated videos), disagreed quite strongly with that interpretation, arguing that the general flow of information that the board had been receiving from consumer groups and surveys, combined with a quite substantial drop in complaints coming in, indicated that the community was generally satisfied with prevailing practice. David Stratton, film critic for The Australian, Variety, and SBS’s Movie Show, and, as Director of the Sydney Film Festival in the 70s and early 80s, a veteran of many a censorship battle, was another concerned even then that the Board was becoming more conservative. Writing about the Dead Man issue inThe Australian (January 13/14, 1996) he argued that the guidelines under which the censors operate should genuinely reflect community standards, and “not those of small but noisy groups of moral conservatives who seem able to make their minority views heard by willing politicians and compliant government agencies.” John Dickie argued that the new guidelines were framed to accurately reflect classification decisions already being made by the OFLC under the new Classification Act. (The Act came into operation in January 1996, and the guidelines were added many months later, with the late inclusion of a glossary of terms.) Concern had previously been expressed over one specific phrase, that classification decisions “need to take account of community concerns about . . . the portrayal of persons in a demeaning manner”; “demeaning” was seen as a very subjective term, open to interpretation. In the glossary “demean” is defined as “a depiction, directly or indirectly sexual in nature, which debases or appears to debase the person or the character depicted.” The question is whether the subjectiveness has merely been transferred to the word “debase”. General principles The general thinking applying to classification decisions was spelled out in the guidelines, which stated that classification decisions were to give effect, as far as possible, to the following principles: (a) adults should be able to read, hear, and see what they want; (b) minors should be protected from material likely to harm or disturb them; (c) everyone should be protected from exposure to unsolicited material that they find offensive; (d) the need to take account of community concerns about: (i) depictions that condone or incite violence, particularly sexual violence; and (ii) the portrayal of persons in a demeaning manner. (It’s this last phrase that aroused some suspicion. John Dickie explained that it was “something the lawmakers wanted in.” But, as mentioned above, it’s certainly a phrase which could be given a very subjective reading, and could be used to cover a multitude of examples.) Recommendations were made by the Law Reform Commission, in its 1991 report on censorship procedure, about the need for a wide, three month public consultation process, but only ten days were initially given for the presentation of submissions. This deadline was extended for a month, but no report on submissions received has ever been made public, and although much has been made of the involvement of Professor Peter Sheehan (former Chairman of the Board of Review) in their incorporation into the guidelines, it is understood he saw only a summary prepared by OFLC staff. Also, the OFLC Annual Report (95/96) says that when the revised guidelines were circulated at the February 96 meeting of censorship ministers, “further changes were made in accordance with input from Ministers.” Watch On Censorship – Recommendations WOC has in fact argued that the OFLC actually used some guidelines as mandatory rather than discretionary in the Romance decision, while dismissing other, equally appropriate, guidelines, such as those which require the Board to give equal weight to the artistic and educational content and merit of a film. WOC also argues that the Classification Act, in acknowledging the right of adults to see, read or hear what they like, presupposes that those adults are in a position to form their own opinion about whether or not to view a particular film. For the OFLC to fulfil its mandate to reflect and respond to public concerns and community standards, it is essential that there be transparency of process. To this end WOC has made a number of suggestions to the OFLC, and recommends the implementation of these points in the spirit of comments made in the press during the Romance media coverage by the OFLC Acting Directors, Simon Webb and Peter Harvey, who both called for more public debate about the adequacy of the existing guidelines. WOC is looking forward to participating in a process which should deliver a more accountable and transparent classification system. The recommendations include: the prompt publication on the OFLC website of Board decisions, with majority and minority reasons and numbers; the inclusion in an online database of titles at the time of submission for classification, and the status of review or classification, with accurate running times for classified films and including a listing of cuts made to the originally submitted film; in addition to the database, a listing and copies of all recent decisions made by the OFLC and the Film Board of Review; all press releases issued by the OFLC to be available from its website. WOC has also suggested public disclosure of any proposed guidelines, along with submissions made in response to them; publication on the OFLC web site of the results of all research, surveys and polls regarding community attitudes conducted by the OFLC or on the OFLC’s behalf; accountability of independent review in light of submissions, and publication of consultants’ reports and recommendations; publication of the appointment of all classifiers, full-time, part-time and temporary, along with their qualifications for the positions. Within the OFLC The OFLC has had a troubled four years, having been without a permanent head for much of this time. After overseeing the introduction of the new Classification Act, John Dickie’s term expired in 1997, and he left in January 1998. His position was not filled until the next January, when Kathryn Paterson become Director. She was very well qualified for the position, but had an additional mark in her favour when she incurred Brian Harradine’s displeasure. An Australian who had been a member of the Australian Film Censorship Board from 1988 to 1991, and held positions as deputy chief censor and regional inspector of literature classification, Kathryn Paterson had been Chief Censor of film and literature in New Zealand and Chief Executive of the NZ Classification Office for five years, overseeing the introduction and implementation of a radically restructured classification system. Described as a strong believer in viewing both sexually explicit and violent material in context, and as someone who thinks that easy links cannot be made between the portrayal of violence in the media and violent behaviour, she was admired by many for her common sense and her professionalism. Senator Harradine, however, in an article in The Australian (25 November 1998) complained about her appointment, using the fact that she used the term “sexually explicit material” rather than pornography when she said that for adults there was nothing to suggest that the viewing of such material had a detrimental effect, an opinion that was, of course, absolute anathema to him. Kathryn Paterson maintained that the role of director of the office was not to impose personal views but to objectively apply the law. The NZ classification system includes references to material being demeaning or degrading, similar to the Australian code, and Paterson argued that under both legislations “there are precedents in terms of court law, so in my view it’s quite clear what sort of activities fall into that category.” Unhappily, her era of objectivity and professionalism didn’t last long; she became ill several months into her appointment, and tragically died in September last year. The OFLC is again without a Director. Lolita, Censorship, and Politics The Lolita episode went against the tide, and demonstrated how this current classification system could work under a director respected for her skills and common sense. The OFLC granted an R rating to Lolita, Adrian Lyne’s 1997 film of Vladimir Nabokov’s controversial 1955 novel, now recognised as a classic. Although a number of conservative politicians, headed by SA Liberal backbencher Trish Draper, immediately demanded that the film be banned (despite the fact that none of those complaining about the film had seen it), actually getting it banned was far more difficult. Morals campaigner Senator Brian Harradine was predictably outraged, although with an R rating the film was legally restricted to those eighteen and over; he blamed federal Attorney General Daryl Williams for the decision, arguing that it was a direct result of the appointment of Kathryn Paterson. Lolita was given the R rating by the Classification Board in a unanimous decision, after a process which included consultation with a panel of experts invited to view and comment on the film in their professional capacities. The panel was comprised of representatives from the Australian Institute of Criminology and the NSW Child Protection Agency, an academic researcher and a clinical practitioner working in the area of child abuse. Taking into account their views, the Classification Board decided: that the film was a serious artistic work; that it did not promote paedophilia or child sexual abuse; that the complex paedophilic relationship was discreetly portrayed; and that the girl was shown as a victim in a relationship that is damaging and destructive. The Board also decided that the intensity of the theme required an adult perspective and that the film was not suitable for minors. Appeals against a decision of the OFLC may be made to the Classification Review Board by the (federal) Minister (Daryl Williams); by the applicant for classification (usually the distributor); by the publisher of the film, publication or computer game; or a person aggrieved by the decision. An “aggrieved” person has been judicially defined to mean someone who can demonstrate a direct interest in the subject matter of the appeal extending beyond that of a member of the general public. The prescribed fee for such an appeal is between $2000 and $4000. Despite a long media debate both before and after the classification of the film, the Review Board refused to consider any appeal, saying that none had been made by anyone they could accept as an “aggrieved person”. Structural changes The changes to the Classification Act brought about changes in structure to the OFLC itself, aimed at making it a self-supporting, independent statutory body, but they are changes which dramatically affect their clients. The OFLC is now expected to be commercially viable in relation to its classification activities (although not to its community information activities), and since the new legislation was introduced there has been a substantial increase in all fees, with a number of rises over the four years; in some cases fees have more than quadrupled (an appeal lodged over the classification of a cinema feature has risen from $350 to $2000 or more). It’s a system that discriminates against smaller, independent distributors, with a wide release Hollywood film costing the same to be classified as a small foreign language film. It’s tougher and tougher for independents to buy films, with TV sales low, and margins small, and the OFLC charges can tip the balance against deciding to take a film on. Even the majors release films which are likely to have slim profit margins, and have to take the costs of classification into the equation. The new Act also saw the establishment of two boards, the Classification Board (the old Censorship Board), and the Board of Review, and board members now have their terms strictly limited to seven years. To cope with the increase in workload brought about by the addition of computer games and multimedia to the classification process, additional board members had to be appointed. However, the mechanics of selecting members of both boards has been changed to ensure that “their backgrounds and qualifications reflect the diverse composition of the Australian community” (no film knowledge needed). And even after this exhaustive selection process, a list of appointees that went to federal cabinet last year had a number rejected. It’s not only films Currently, legislation that will see a new classification of non-violent erotica (NVA) replace the X-rating for the huge mail-order video industry is to go to a Senate Committee and then through parliament. In its present draft, it rules out material legal under the old category, such as mild fetishism, portrayals of under-age participants, and bondage scenes. Since January 1 this year, legislation exists that was set up to restrict children’s access to explicit material on the Net by introducing a system that deals with complaints from the public and removes offending content. Questionable content is referred by the Australian Broadcasting Authority to the OFLC for classification, using its existing guidelines. Civil libertarians, industry and community groups have all argued that the legislation will be inefficient and ineffectual, and is entirely the wrong way to attack the problem, but the government has paid them no heed. These and other ongoing issues make it certain that censorship in a number of forms will continue to attract attention; we can only hope that the growing number of voices protesting this out of date and out of step attitude will eventually be heard.