The Australian Classification Board: History, Current
Policies and Future Challenges
 The invitation to speak here tonight came to me in my
capacity as the Director of the Classification Board or as it
might be better understood in the old parlance of Chief
Censor. That certainly was the title in the time of the “lewd
and scandalous” books that are the subject of the exhibition
that has just opened.
 So here I am to discuss the history of classification, the
current classification system and the challenges the
Classification Board faces in a rapidly evolving, technologydriven, increasingly borderless environment. I will punctuate
the discussion with some examples and observations on the
classification (and previously censorship) of books in Australia.
 Australia has certainly come a long way since the early days
of censorship when (prior to the advent of films) the law was
mainly concerned with the importation of books. Under the
classification scheme that exists today books – that is novels
and literature as we know it – rarely come before the
Classification Board.
 In Australia, the Commonwealth has always had a role in
censorship. For most of the 20th century, censorship,
occurred under Customs Regulations1 which prevented the
1
The Customs (Prohibited Imports) Regulations and the Customs (Cinematograph Films) Regulations
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importation of films or publications if they offended against
the criteria set out in those regulations.
Books could be seized by Customs for being blasphemous,
indecent or obscene.
Some famous titles that have been prohibited imports in the
past included Ulysees, Lady Chatterley’s Lover and the subject
of a recent episode of the ABC’s First Tuesday Book Club –
Portnoy’s Complaint.
 Until reforms in the 1970s and 80s the basis of most
Australian censorship law rested on concepts of obscenity and
indecency.
 The English definition of obscenity, known as the Hicklin
test, was incorporated with variations, into Australian law. It
was articulated in 1868 by Chief Justice Cockburn who said:
“. . .I think the test of obscenity is this, whether the
tendency of the matter charged as obscene is to
deprave and corrupt those whose minds are open to
such immoral influences, and into whose hands a
publication of this sort may fall.”2
 Since the 1970s there have been profound changes in the
approach to censorship in Australia including the adoption of
the concept of classifying material on the basis of the views of
2
R v Hicklin (1868) LR 3 QB 360 at p 371
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reasonable adults and changing the names of the Censorship
Board and the Censorship Review Board to reflect that:
“… rather than focussing on preventing material from being
disseminated, policy now concentrates more on classifying
films and publications into defined categories, with
restrictions on dissemination only being imposed at the
upper limits of what is considered acceptable by the
general community.”3
 As a result of the significant evolution of censorship in the
latter part of the 20th century, we now have a classification
scheme that classifies material into appropriate categories
rather than looking for reasons why it should be banned.
The primary purpose of the scheme is to provide information
to consumers, particularly parents, so that they may make
informed decisions about what they or their children see, read
and play.
 Australia has a fully cooperative National Classification
Scheme which was established under legislation introduced in
1995. Under this model the Commonwealth is generally
responsible for classification while the States and Territories
are responsible for enforcing breaches of classification
requirements.
 Each State and Territory makes their own laws about what
material is permissible in their jurisdiction – while there is
3
Australian Law Reform Commission Report #51 on Censorship Procedure (1991)
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significant uniformity – there are some distinct differences.
Eg. Material classified X18+ may be legally sold, hired and
distributed in the ACT and the Northern Territory but not in
any of the States.
 The Board is a statutory body, independent from the
Government and also separate and independent from the
Classification Review Board.
 The Board makes classification decisions by applying
provisions in the Classification Act, the National Classification
Code and the relevant classification guidelines. These
legislative instruments require unanimous agreement by
Commonwealth, State and Territory Ministers with
responsibility for censorship matters.
 The Board currently has seven full time members – three men
and four women - ranging in age from their mid twenties to
70 years old - who represent a variety of academic
qualifications, professional backgrounds and life experience
(including people who are parents and grandparents).
As required by legislation, membership of the Board is broadly
representative of the community.
 Each Board member is generally appointed for a fixed term of
three years. Members have a statutory limit of seven years
service after which time they cannot be reappointed. In
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actual fact, the Board turns over much more frequently than
that.
 This is important for ensuring that the Board makes decisions
which are consistent with community standards - regular
turnover of Board members injects not only “new blood” but
is a mechanism for keeping pace with changes in attitudes
and community standards over time.
 Along with the other members of the Classification Board, it is
my job to apply the legislation to decide on classifications for
films, computer games and certain publications.
 The primary purpose of the scheme is to provide information
and advice to the public so that they can make informed
choices about entertainment material for themselves and
those in their care.
 In fact, the Board does not “censor” material at all and must
classify it in the form it is submitted. Unlike schemes in other
countries, the Board does not edit material or recommend
modifications to publishers or filmmakers – we only determine
a classification and consumer advice.
 The classification scheme is fundamentally based on the
principle that adults should be free to choose what they read,
hear and see – with some limited exceptions.
Exceptions include child pornography, gratuitous or
exploitative depictions of sexual violence, cruelty and detailed
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instructions in crime or violence. This type of content is
Refused Classification and not able to be sold or distributed in
Australia.
 As mentioned earlier, another important principle
underpinning today’s classification decision-making is the
concept of community standards. The ‘community standards’
test refers to ‘the standards of morality, decency and
propriety generally accepted by reasonable adults’.
 A ‘reasonable adult’ is considered to possess common sense
and an open mind, and an ability to balance personal opinion
with generally accepted community standards.
 The ‘reasonable adult’ test is used in two different senses - as
a measure of community standards and also as an
acknowledgment that adults have different personal tastes.
 Of course community standards are not a clear cut concept
and they are often in a state of flux. Views vary widely within
any community, so there will always be differences of opinion
about where the balance should lie when applying a
community standards test and the principle that adults should
be able to read, hear and see what they wish.
 There will always be certain material such as child
pornography which the community will not tolerate for
obvious reasons.
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However, for other material – particularly at the high-end of
the spectrum where decisions may result in material being
restricted or banned entirely - the views of individuals within a
community can be distinctly at odds with one another.
 The most controversial classification decisions today typically
illustrate this point…..I’m sure many of you will have followed
the commentary on the recent decision for the film, Salo.
Both ends of the spectrum – the supporters and the
detractors – are equally vocal, passionate and convinced that
they hold the ‘right’ view and also that they speak for the
majority of the community!
 Similar controversy has surrounded classification decisions for
several books in the past few years….but first let me explain a
little about the classification of publications today.
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Publications
 Under the current system only publications which are deemed
to be ‘submittable’ must be classified by the Classification
Board.
 In accordance with the Classification Act, ‘submittable’
publications are defined as those which are:
- likely be Refused Classification (ie. banned),
- likely to be offensive to the extent that they should not be
sold or displayed as an unrestricted publication, or
- unsuitable for a minor to see or read.
 It is generally the responsibility of the publisher or distributor
to determine whether their publication fits the definition of a
‘submittable publication’ and should therefore be submitted
for classification.
 I do on occasion use my legislative powers to call in
unclassified publications that are believed to be submittable
which come to my attention (generally through complaints
from the public).
 The Classification Board classifies a range of submittable
publications each year – the significant majority are adult
magazines – but also include naturist publications and even
the occasional board game.
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 As mentioned earlier, unlike the censorship regime of the
early 1900s, books and novels are no longer a focus of the
Boards’ activities.
 That said, the Board will classify books for which a valid
application for classification has been made.
It is in this context that the Board has classified a range of
books including the Bible (1993), Art publications and books
that discuss issues such as euthanasia and terrorism.
 It is in the realm of publications that perhaps the greatest
visible shift in censorship has occurred.
Consider that many of the books that were previously not
allowed into Australia were considered offensive for their
descriptions and discussions of sexual activity or other
apparently depraved and permissive behaviour. Today we
have an entire genre legally available of such material that is
not simply text-based but represented in full colour pictures
and images of real people!
 It could be argued that controversy generated today by Board
decisions on publications, is sparked by the fact that the item
in question is, in fact, a book.
 I would now like to share with you the background to some of
the interesting decisions involving books that have prompted
significant debate in the broader community, the media,
members of Parliament and indeed posed challenges for the
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Board during my time as Director and also under my
predecessor.
Islamic texts
 In late 2005 eight ‘Islamic texts’ were submitted for
classification as law enforcement applications. The Board
classified them as Unrestricted.
The Unrestricted category for publications encompasses a
wide range of material, but is not likely to include material
that offends a reasonable adult to the extent that it should be
restricted.
 In July 2006, the Board’s decisions were subject to review by
the Classification Review Board, at the request of the
Commonwealth Attorney-General at the time.
 The Review Board confirmed the Unrestricted classifications
for six of the eight texts, but decided that two of the texts,
Join the Caravan and Defence of the Muslim Lands should be
Refused Classification.
In accordance with the National Classification Code, the
Review Board was of the opinion that the books ‘promote,
incite or instruct in matters of crime or violence,’ specifically
the crime of committing a terrorist act.
 In the latter half of 2007, amendments were made to the
Classification Act to require that publications, films or
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computer games that advocate the doing of a terrorist act
must be Refused Classification.
 It became clear in 2007 when these amendments were being
debated in Parliament that they were being made, at least in
part, to deal with the type of material that was the subject of
decisions made by the Board and Review Board in the
previous year.
 The legislative provisions cover material that ‘directly praises
the doing of a terrorist act in circumstances where there is a
risk that such praise might have the effect of leading a person
… to engage in a terrorist act.’
It is not designed to capture depictions or descriptions of
terrorist acts ‘done merely as part of public discussion or
debate or as entertainment or satire.’
 Since these amendments came into effect, the Board has only
Refused Classification to one item on the basis of this legislative
provision.
Online content was referred to the Board for classification in July
2009 by the Australian Communications and Media Authority (the
ACMA).
The film, Islamic Army in Iraq, consisted of a webpage which
opened with a prayer of praise to Allah followed by a list of
American losses incurred during the war.
It was Refused Classification on the basis that it advocates the
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doing of a terrorist act and in this particular instance ‘…directly
praises the doing of a terrorist act…’
 Matters relating to online content and websites are the
responsibility of the ACMA. I will touch on this point later in
this presentation.
The Peaceful Pill Handbook
 Also in late 2006, the Classification Board classified
The
Peaceful Pill Handbook by euthanasia advocate Philip
Nitschke, Category 1 restricted.
This classification means the book is restricted to adults.
 In early 2007, the Classification Review Board received two
applications to review this decision, one from the interest
group The Right to Life Association, and the other from the
Attorney-General at the time.
 The Review Board decided to set aside the decision made by
the Board and Refused Classification to the book, as in their
view, it instructed in matters of crime relating to the
manufacture, storage, use, possession and importation of
barbiturates, which are generally a prohibited drug.
 The Review Board decision means that the
Peaceful Pill
Handbook cannot be sold in Australia, nor can it be legally
downloaded online.
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 In 2008, another of Mr Nitschke’s books,
Killing Me Softly,
came to my attention through various media reports. I
decided to use my legislative powers to call in this book for
classification.
 The Classification Board subsequently classified this book
Unrestricted. In the view of the Board, the book dealt with
adult themes with a high degree of intensity in a discreet way,
that was low in impact and not exploitative, and did not
instruct or incite the committing of a crime.
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 In relation to these examples there is a fine line between
content which discusses themes, issues and legitimate debate
about euthanasia, and content which instructs and
encourages criminal acts that facilitate euthanasia, such as
the manufacture of drugs or removal of evidence of suicide to
prevent the reporting of such a death to a Coroner.
 A major challenge for the Board when dealing with
contentious material, is determining at what point material
goes beyond discussing an illegal act to clearly instructing or
inciting an illegal act.
 A key feature of the publications discussed above is that they
all discuss highly controversial and sometimes criminal acts.
These are vexed issues that elicit emotive responses and raise
serious questions that are debated by policy-makers and
regulators not just here in Australia but also abroad.
 That these publications came before the Board at all
demonstrates that community standards are often in a state
of flux and can appear to change quite dramatically, for
example, in response to global events.
Widespread community concerns about ensuring safety from
terrorist attacks is a relatively new priority in Australia –
driven by events such as the 9/11 and Bali terrorist attacks.
 Lewd and scandalous – no – but offensive by today’s
community standards and concerns – yes possibly.
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 By contrast, in 2009, following an application form the ACMA,
the Board classified an electronic (ie. online) version of the
Marquis de Sade’s novella, Justine, Unrestricted.
The novella, published in 1788 and in print since that date,
was deemed to be a bona fide artwork.
The Guidelines for the Classification of Publications state that
‘Bona fide artworks are not generally required to be submitted
for classification as they are not generally considered to be
submittable publications’.
Art Monthly
 Another publication which attracted significant attention in
recent years was the infamous July 2008 issue of Art Monthly,
with a cover photograph by Australian photographer Polixeni
Papapetrou of her daughter, entitled ‘Olympia as Lewis
Carroll’s Beatrice Hatch before White Cliffs’.
The photograph depicted the child sitting nude, in three
quarter view, in a painted landscape.
 This issue of Art Monthly was published very soon after the
Bill Henson exhibition at a Sydney Gallery attracted media and
community attention.
 I used my powers to call in the publication for classification.
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 The Board subsequently classified the publication Unrestricted
with the consumer advice ‘M - Not recommended for readers
under 15 years’.
The Board was of the view that the publication was a bona
fide arts publication addressing serious issues of interest to
the arts community.
 A minority of the Board was of the view that the images in the
publication depicted a child under 18 in such a manner that it
was likely to cause offence to a reasonable adult and should
therefore be Refused Classification.
 As a result of community pressure and political decisions in
the wake of the Bill Henson and Art Monthly matters, the
Australia Council for the Arts’ developed protocols for working
with children in art, that came into effect on 1 January 2009.
The protocols require Australia Council funded artists and
organisations to apply, in certain circumstances, for
classification of images of naked real children.
 The Board has only received one application submitted in
accordance with these protocols - the images were classified
Unrestricted.
 In this particular instance, there were two equally interesting
and important debates:
- whether the images constituted art or (in the extreme
view) inappropriate sexualised images of children; and
- whether, as art, it should even be subject to classification.
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 Art may fall within the definition of a publication and the Board
must classify images if an application for classification is
submitted.
However the Classification Guidelines allow for bona fide
artworks to be classified Unrestricted if they are set in a
historical or cultural context, even though the work may offend
some sections of the adult community.
 In the past decade concerns related to the sexualisation of
children in the media and protecting children from sexual
predators have risen. A change in community standards is
evident in the profile and number of interest lobby groups and
their success in focussing attention on the issues and for
instigating legislative changes.
 That the Bill Henson images, which have been exhibited in the
past, caused such a furore resulting in several applications for
classification in the ensuing period, is another example of the
shift in community standards in response to technological and
social changes that have increased concerns about children’s
safety.
 Another element of the classification scheme is to protect
children (including child actors/models) by ensuring that
offensive material that contains descriptions and depictions of
persons who are, or look like they are under 18, is refused
classification.
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 The Classification Code was amended several years ago to
bring the age definition of a minor into line with ILO 182 - the
international treaty aimed at the prohibition and elimination of
the worst forms of child labour including child pornography.
Under this treaty a “child” is defined as a person under the
age of 18 years compared with the age of consent which is 16
years old.
 The Board has an important role – that it treats very seriously –
in relation to classifying material submitted by law enforcement
authorities, including items used in prosecutions for child
pornography offences.
 The Board’s experience in dealing with genuine examples of
child pornography gives them a very useful perspective that can
be applied to the classification of other material. Board
members are able to apply their knowledge of child
pornography to distinguish between it and, for example, high
impact material in dramatic films or artistic representations in
publications such as Art Monthly.
Adult Publications
 So is there anything that might be considered ‘lewd and
scandalous’ in contemporary Australia? I’ve no doubt that
there are people who would point to the proliferation of adult
magazines – despite their regulation –as lewd and scandalous.
However, complaints are limited and more likely to target
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concerns around potential depictions of minors rather than
the availability or the content of the magazines in and of
themselves.
 On this matter, over the past 18 months a prominent issue
raised in public complaints, has been the content and
availability of unclassified ‘teen title’ adult publications sold in
unrestricted premises such as petrol stations and convenience
stores.
With titles such as Purely 18 and Finally Legal, it is safe to
assume and I can indeed confirm, that such publications
contain images of young persons who are depicted to be on
the borderline of 18 years old.
 Classification guidelines in Australia expressly state that
exploitative or offensive depictions or descriptions involving
someone who is or appears to be under the age of 18 years,
must be Refused Classification.
 Investigations into the matter revealed that the publications
being sold had either not been classified by the Board or were
different to the versions that the Board had classified.
 The Board found in many, but not all instances, that the
content in these publications contained offensive depictions
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and descriptions of persons who were or appeared to be
under 18 years.
 In other instances, the Board found that the content was
higher in impact than that allowed to be sold in unrestricted
premises, and therefore be should be sold in restricted, adult
only premises.
 Interestingly and perhaps the most ‘scandalous’ accusation
recently directed at the Board - likely to have been prompted
by the Boards attention to the breaches I have just discussed
above - is that we display a bias against small breasted
women…and on this basis… are banning material!
 Criticisms have been levelled at the Board regarding the
factors it considers when determining the age of persons
depicted in publications, particularly the accusation that small
breasted women are determined by the Board to appear to be
children.
This is categorically untrue.
 The Board members take their responsibilities seriously and
consider the overall appearance of persons and the context in
which they are depicted, including text, props and poses when
making classification decisions.
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 Depicting small-breasted women is not grounds for a
publication to be Refused Classification, nor do the
classification guidelines refer to the size of a woman's breasts!
Classification of online content
 Generation Y and the ones to follow, who embrace technology
and enjoy immediate access to endless streams of information
from all over the globe, are now arguably redefining the
boundaries of lewd and scandalous.
 I would posit to you that lewd and scandalous may cease to
be so in the age of you-tube videos that instantaneously
transmit all manner of behaviour and facebook pages where
individuals actively put themselves (all of themselves) on
display to the world, as it were.
 By comparison the content of books that was once so lewd
and scandalous is today more likely to elicit a disdainful “is
that it?” or dissected and appreciated for its humour value!
 The online environment is potentially where the greatest
challenges lie for governments (here and elsewhere) and for
communities in determining standards and boundaries about
what is acceptable, permissible and indeed legal.
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 Debates about limits on nudity, privacy issues, racism and
bullying online (particularly in relation to social networking
sites) are now emerging and gaining momentum.
It is these forums that will act as a mechanism for defining
community standards into the future.
 Currently the Board’s role is to classify online content on
application from the ACMA.
As mentioned earlier, online content is regulated by the
ACMA.
 The Board classifies online content in the same manner as it
would classify films, computer games or publications.
The content submitted to the Board by the ACMA is vast and
varied and the context in which the material is submitted is
vital for the Board in determining the correct classification.
 Once a classification decision is made, this is communicated to
the ACMA and it is their responsibility to determine what
action is taken from there.
 The proposals for an internet filter and other matters of policy
are for the Government to decide. The Board only applies the
law as it is made so it is not appropriate for me to comment
on policy issues.
 What role the Board plays in the future in relation to online
content remains to be seen.
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 What is certain is that balancing individual freedoms with
practical and enforceable laws that provide an appropriate
level of protection online will be difficult and complex.
Keeping pace with a rapidly evolving and all encompassing
online environment together with highly convergent
technologies will also be very challenging.
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Conclusion
 The challenge for the Board is to continue to appreciate and
understand the evolving nature of community standards and
to apply these appropriately when making decisions.
 Robust community debates, including academic forums such
as this conference, are important for gauging what is and
what isn’t considered acceptable. The Board monitors this
type of exchange of opinions and discourse closely and also
welcomes the opportunity to participate.
 Statistically, from over 7,000 decisions the Board makes each
year, publications only make up about 200 decisions. The
examples I have discussed today are just a snapshot of the
vast and varied work the Board does across a variety of media
formats.
 I hope the matters that the Board has dealt with in recent
times have been of interest to you all and that this
presentation has provided you with some insights into how
the Board operates today including the limits and challenges it
faces.
 Once again, thank you very much for inviting me to take part
today.
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