No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 24 January 2025
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.
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.
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) 365-6Google Scholar; Scott, Beattie and Elizabeth, Beal, Connect + Converge: Australian Media and Communications Law (2007) 179Google Scholar; 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 1Google Scholar (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, 48Google Scholar.
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.
8 Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) ('NSW Act’); Classification of Computer Games and Images Act 1995 (Qld) ('Qld Games Act’); Classification of Films Act 1991 (Qld) ('Qld Films Act’); Classification of Publications Act 1991 (Qld) ('Qld Publications Act’); Classification (Publications, Films and Computer Games) Act 1995 (SA) ('SA Act’); Classification (Publications, Films and Computer Games) Enforcement Act 1995 (Tas) ('Tas Act’); Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic) ('Vic Act’); Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) ('WA Act’); Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (ACT) ('ACT Act’); Classification of Publications, Films and Computer Games Act 1985 (NT) ('NT Act’).
9 See the Colonial Laws Validity Act 1865 (Imp) s 5 for the wide-ranging powers of the colonial (now State) legislatures.
10 Agreement Between the Commonwealth of Australia the State of New South Wales the State of Victoria the State of Queensland the State of Western Australia the State of South Australia the State of Tasmania the Australian Capital Territory and the Northern Territory of Australia Relating to a Revised Co-operative Legislative Scheme for Censorship in Australia (1995), <http://www.classification.gov.au/resource.html?resource=215&filename=215.pdf> at 13 March 2009 ('IGA’). This was recommended in 1928: Commonwealth, Royal Commission on the Moving Picture Industry in Australia, Report (1928) 31 (recommendation 39).
11 Tasmania and Western Australia initially declined to join the NCS in relation to publications. However, Tasmania joined in 2001 (see Classification (Publications, Films and Computer Games) Enforcement Amendment Act 2001 (Tas)), and Western Australia in 2003 (see Censorship Amendment Act 2003 (WA)).
12 IGA, above n 10, [4] (see above n 8 for the participating legislation).
13 Classification Act ss 3, 4. See also Harris, above n 6, 48.
14 See below Part II(C).
15 IGA, above n 10, [9]. See also Classification Act s 6. The guidelines are periodically revised through ‘consultation with members of the public': Guidelines for the Classification of Publications 2005 (Cth) [3].
16 The participating ministers are: the Attorneys-General for the Commonwealth, New South Wales, South Australia, Tasmania, Victoria, Western Australia and the Australian Capital Territory; the Minister for Tourism, Fair Trading and Wine Industry Development for Queensland; and the Minister for Justice and Attorney-General for the Northern Territory: Attorney-General's Department, National Classification Scheme <http://www.ag.gov.au/www/agd/agd.nsf/Page/Classificationpolicy_Nationalclassificationscheme> at 13 March 2009.
17 See, eg, Michaela Boland, ‘Censorship: Now You See It, Now You Don't', The Australian Financial Review, 14 March 2007, 57.
18 Attorney-General's Department, Classification Operations Branch <http://www.ag.gov.au/www/agd/agd.nsf/Page/Organisational_StructureCivil_Justice_and_Legal_Services_GroupClassification_Human_Rights_and_Copyright_DivisionClassification_Operations_Branch> at 13 March 2009.
19 Ibid.
20 See Attorney-General's Department, Classification Policy Branch <http://www.ag.gov.au/www/agd/agd.nsf/Page/Organisational_StructureCivil_Justice_and_Legal_Services_GroupClassification_Human_Rights_and_Copyright_DivisionClassification_Policy_Branch> at 13 March 2009.
21 The legislative provision empowering the Boards to carry out their classification functions is Classification Act s 4, which permits them to ‘exercise powers and perform functions’ that ‘are conferred on them under an arrangement between the Commonwealth and a State or the Commonwealth and the Northern Territory'. This is unusual in that the powers of classification and review of classification are not further enunciated in the legislation.
22 ‘A statutory body is simply a body established by statute': Christopher Enright, Judicial Review of Administrative Action (1985) 21. See also Attorney-General's Department, Classification Policy <http://www.ag.gov.au/www/agd/agd.nsf/Page/Classification_policy> at 13 March 2009.
23 The Classification Board is created by Classification Act pt 6 div 1. Classifications at first instance are made under Classification Act pt 2 div 2 (see below Part II(C)).
24 See below n 44-6 and accompanying text.
25 Classification Act ss 5 (for ‘publication’ and ‘film’), 5A(1) (for ‘computer game’). If a music product has multimedia content, it will be classified as either a film or computer game, and hence become subject to the NCS: Classification Website <http://www.classification.gov.au/special.html?n=273&p=197> at 13 March 2009.
26 The Classification Board can provide an evidentiary certificate to law enforcement bodies making a prosecution regarding objectionable material: Classification Act s 87.
27 Classification Website <http://www.classification.gov.au/special.html?n=250&p=58> at 13 March 2009. The ACS also has a residual classification power under Customs (Prohibited Imports) Regulations 1956 (Cth) reg 4A, which prohibits the importation of ‘objectionable goods'. Such goods include publications, films and computer games that are classified RC (see below Part II(C)), or, in the case of unclassified material, would be classified RC. ACS staff receive NCS training to help achieve consistent classification standards: email from John Peterson (Community Protection, Trade Policy and Regulation Branch, Australian Customs Service) to Michael Dunstan, 14 May 2007.
28 Classification Act s 48(2).
29 Classification Act s 48(3). Note that this does not include temporary members (see below Part III(B)).
30 Classification Act ss 46, 47. Profiles of current members are available at Classification Website <http://www.classification.gov.au/special.html?n=259&p=68> at 13 March 2009.
31 Classification Act s 51(3).
32 Gareth, Griffith, ‘Censorship Controversies: Asking Questions about the OFLC’ (2000) 4(1) Telemedia 1, 1Google Scholar.
33 The Classification Review Board is created by Classification Act pt 7 div 1.
34 Classification Act s 74. Profiles of current members are available at Classification Website <http://www.classification.gov.au/special.html?n=261&p=67> at 13 March 2009. The Classification Review Board must have at least three, but no more than eight (or such higher number as prescribed), members: Classification Act s 73(c).
35 Classification Act s 76(3).
36 Classification Act pt 5.
37 Classification Act s 44(1). See also Classification Website <http://www.classification.gov.au/special.html?n=251&p=62> at 13 March 2009. The Classification Board makes around 6 500 decisions a year whilst the Classification Review Board makes around 30. Since 2000, these review decisions have been made public at Classification Website <http://www.classification.gov.au/special.html?n=262&p=66> at 13 March 2009. The Classification Board, however, does not publish its decisions online.
38 Classification Act s 42. Thus, a publisher unhappy with a decision can either appeal, or resubmit the work with the sections in question removed: John, Dickie, ‘Future Directions in Film and Literature Classification’ (1989) 1 Current Issues in Criminal Justice 107, 109Google Scholar. The second option is controversial as audiences need not be made aware of the cuts, meaning that, indirectly, the NCS could remove material unbeknownst to audiences: Paul, Byrne, ‘In the Realm of the Censors’ (1997) 132 Communications Update 14, 14Google Scholar.
39 Applications for classification for publications, films and computer games are made under Classification Act ss 13, 14, 17 respectively.
40 Classification Act s 7.
41 Formerly, a film needed separate classifications for exhibition and hire/sale, even if the film was exactly the same in both cases: Classification Act s 14(3), repealed by Classification (Publications, Film and Computer Games) Amendment Act 2007 (Cth) s 3; sch 4(1). This repeal was undertaken with the objective of ‘standardising classifications regardless of platform': Explanatory Memorandum, Classification (Publications, Film and Computer Games) Amendment Bill 2006 (Cth) 22.
42 See especially Classification Website <http://www.classification.gov.au/special.html?n=253&p=78> at 28 July 2007. The legislative provisions pertaining to this requirement are part of the State and Territory enforcement legislation.
43 Fees are tabled in the Classification (Publications, Films and Computer Games) Regulations 2005 (Cth), and range between A$520–1840 for publications (reg 5; sch 1 pt 1); A$510-5090 (reg 7; sch 1 pt 2; sch 1 pt 3) for films; and A$470-2040 for computer games (reg 8; sch 1 pt 4). For review fees, see below n 155 and 166 and accompanying text.
44 Classification Act s 5B. According to Classification Website <http://www.classification.gov.au/special.html?n=281&p=193> at 28 July 2007, the exemption system enables limited-market products to avoid the otherwise prohibitive costs of classification. However, the exemption does not apply if the film or computer game would be rated M or above: Classification Act s 5B(3)(d). Those wishing to obtain an exemption can do either nothing (Classification Act s 5B(1), (2)), or obtain an exemption certificate (Classification Act pt 2 div 6).
45 The Film Festivals Exemption Scheme exempts films at film festivals unless, in the opinion of the Director of the Classification Board, the material would be classified X 18+ or RC: see Office of Film and Literature Classification, Film Festival Guidelines (2004), <http://www.classification.gov.au/resource.html?resource=290&filename=290.pdf> at 28 July 2007 especially [8]-[10]. See also Classification Website <http://www.classification.gov.au/special.html?n=284&p=116> at 28 July 2007; Clark, above n 1, 2. Furthermore, the Sydney Film Festival has been given the ability to screen RC, or likely to be RC, films, by the New South Wales Government's 2004 Sydney Film Festival Direction: Classification Website <http://www.classification.gov.au/special.html?n=284&p=116> at 28 July 2007.
46 See especially Classification Website <http://www.classification.gov.au/special.html?n=272&p=194> at 28 July 2007. Given that many such publications are serial magazines, an application for a serial classification declaration can be made under the Classification Act s 13(2). This costs less than getting each issue classified: Classification Website <http://www.classification.gov.au/special.html?n=300&p=161> at 28 July 2007. See also Classification (Serial Publications) Principles 2005 (Cth), <http://www.classification.gov.au/resource.html?resource=662&filename=662.pdf> at 28 July 2007.
47 Classification Act s 5.
48 Classification Act s 23.
49 NSW Act s 46; Qld Publications Act s 9A; SA Act sch 1 s 1; Tas Act s 64; Vic Act s 60; WA Act s 102A; NT Act s 50ZM. The Tasmanian and Western Australian provisions also empower their participating ministers to call in publications, whilst the Queensland provision empowers Queensland classification officers to do the same. See also Mallam, Dawson and Moriarty, above n 5, (at update 41) ¶1.5990.
50 See, eg, NSW Act ss 46A (films), 47 (computer games), 48 (advertisements), 48A (reclassification).
51 See Classification Act s 42(5).
52 Controversially, as computer games cannot be given R 18+ or X 18+ classifications, any such game is therefore refused classification. A March 2008 proposal to introduce an R 18+ category has currently stalled: see Jason Hill, ‘Setback for Adults-only Games', The Age (Melbourne), 28 January 2009, Green Guide 36.
53 These are made according to Classification Act s 8. For the markings themselves, see Classification Website <http://www.classification.gov.au/special.html?n=455&p=134> at 28 July 2007.
54 Classification Act s 25. Once a work has been classified, details of the classification can be accessed via the Classification Database <http://www.classification.gov.au/special.html?n=44&p=155> at 28 July 2007.
55 Advice for G films and computer games and Unrestricted publications is optional: Classification Act s 20. A review of film and computer game consumer advice was conducted in 2005: see Office of Film and Literature Classification, Review of Consumer Advice for Films and Computer Games (2005), <http://www.classification.gov.au/resource.html?resource=519&filename=519.pdf> at 28 July 2007.
56 These matters are listed under Classification Act s 11.
57 Classification Act s 9A; see above n 2. This section is unique in the Classification Act in that it is the only section to explicitly list details for the classification of materials, as opposed to making mention of general guidelines or referring to other documents.
58 Classification Act ss 9, 12.
59 See below n 117 and 125 and accompanying text.
60 This is similar to the tempering principle enunciated in the common law cases on obscene and indecent material. See, eg, Popow v Samuels (1973) 4 SASR 594, 607 (Bray CJ); Butler and Rodrick, above n 4, 371-2.
61 National Classification Code 2005 (Cth) [1].
62 See generally Guidelines for the Classification of Publications 2005 (Cth), above n 15; Guidelines for the Classification of Films and Computer Games 2005 (Cth). They also provide glossaries for terms used in the classification levels (such as, for example, ‘demean’).
63 Guidelines for the Classification of Films and Computer Games, above n 62, 5-7.
64 Ibid.
65 Ibid 14. See also National Classification Code, above n 61.
66 See above Part II(A). However, the Commonwealth government's 2007 ‘intervention’ to prevent child abuse in indigenous communities in the Northern Territory has also seen the introduction of transitional Commonwealth enforcement provisions for the purpose of restricting access to pornographic material in these indigenous communities: see Classification Act pt 10. These provisions are set to expire in August 2012: Classification Act s 115.
67 It is likely such arrangements were made to gain the agreement of these jurisdictions to join the NCS. See generally History of Cooperative National Scheme for the Classification of Films in Australia [3], [4] <http://www.classification.gov.au/resource.html?resource=859&filename=859.pdf> at 28 July 2007.
68 These are the publications classification officer (see Qld Publications Act s 6); the computer games classification officer (see Qld Games Act sch 2); and the films classification officer (see Qld Films Act s 4(5)). The Queensland Acts also allow for the creation of classification inspectors: Qld Publications Act s 5; Qld Games Act s 30; Classification of Films Act 1991 (Qld) s 4(1).
69 Qld Publications Act ss 9, 10.
70 Qld Games Act ss 5, 6. See also s 4.
71 This means that Queensland officers mostly work with unclassified materials: interview with David Cannavan, Classifications Officer, Office of Fair Trading, Department of Tourism, Fair Trading and Wine Industry Development, Queensland Government (Telephone interview, 29 May 2007).
72 Qld Films Act pt 7.
73 An appeal against a publication decision can be made under Qld Publications Act s 11. To do this, the Publications Appeal Tribunal must be convened under the Classification of Publications Regulation 1992 (Qld) (enacted under s 38 of the principal Act). The same ability to appeal to the Computer Games and Images Appeal Tribunal exists with regards to computer games under Qld Games Act s 8 (see Classification of Computer Games and Images Regulations 2005 (Qld); Qld Games Act s 67). It is also possible to convene the Films Appeal Tribunal (see Classification of Films Regulation 1992 (Qld); Qld Films Act s 65) for classification exemption appeals under s 59 of the principal Act.
74 Since the enactment of the legislation in 1992, the Publications Appeal Tribunal has only been convened once, in 2007: interview with David Cannavan, above n 71.
75 SA Act pt 2.
76 SA Act pt 3.
77 SA Act s 17. The South Australian Classification Council must classify according to the Code and Guidelines (s 18); and pay heed to maters practically identical to those in the Classification Act s 11 (s 19). Although not related to the NCS, South Australia also has, uniquely in Australia, a Classification of Theatrical Performances Board, for the South Australia-only classification of theatrical performances. See generally Classification of Theatrical Performances Act 1978 (SA).
78 Henderson, above n 2. See below this Part for X 18+ classified films.
79 Tas Act s 41A; see also s 41.
80 Tas Act s 44. The Review Board must use the criteria in Tas Act s 42, which are different to the criteria in the NCS.
81 NT Act s 7.
82 NT Act s 16.
83 See Northern Territory of Australia Remuneration Tribunal (2004) Report and Recommendation No 2 of 2004 [49] <http://www.dcm.nt.gov.au/dcm/remuneration/pdf/TribunalReport.pdf> at 28 July 2007.
84 See, eg, Olivia Hill-Douglas, ‘State “Powerless” to Undo Ban on Controversial Film', The Age (Melbourne), 14 May 2002, 5 (concerning Victoria); ‘Film Hard to Get Back on the Big Screen – Dickie', Australian Associated Press, 13 May 2002 (concerning New South Wales). It was this controversy that led to the passing of the Sydney Film Festival Direction: see above n 45.
85 Cheryl, Saunders, ‘Intergovernmental Agreements and the Executive Power’ (2005) 16 Public Law Review 294, 299Google Scholar.
86 IGA, above n 10, [3(3)].
87 IGA, above n 10, [3(2)]. Email from Cheryl Saunders (Professor of Law, University of Melbourne) to Michael Dunstan, 24 May 2007. See also Saunders, above n 85, 296-302.
88 An example of this could be the free availability of X 18+ classified films in the States: see below n 91.
89 See generally, eg, NSW Act pt 3 (publications), pt 2 (films), pt 4 (computer games).
90 See generally, eg, NSW Act pt 5 (advertisements), pt 6 div 3 (exemptions), pt 6, pt 7 (general enforcement issues).
91 See NSW Act s 6; Qld Films Act; Qld Publications Act ss 37, 39; SA Act ss 30, 38; Tas Act ss 22, 36; Vic Act ss 8, 9, 15(1); WA Act ss 69, 73. Cf ACT Act ss 9(2), 22; NT Act ss 37(2), 49. This is controversial: see, eg, Harris, above n 6, 52, 55–6; Tony, Pitman, ‘What's Wrong with Seeing Sex? Offensiveness and the Flawed Australian Censorship System’ (2000) 53 Australian Rationalist 12, 18Google Scholar; David Wilson, ‘Call for Uniform Approach to Porn', The Age (Melbourne), 6 January 2008, 8. However, anecdotally, X 18+ films are freely available for illegal purchase in the States: see, eg, Dickie, above n 38, 113. In 2007, an adult products company unsuccessfully argued that pornographic films depicting actual sex should be classified R 18+ instead of X 18+: see Caroline Overington, ‘Be Adult about Porn, Pleads Industry', The Australian (Sydney), 28 February 2007, 3; Adultshop.com Ltd v Members of the Classification Review Board (2007) 243 ALR 752.
92 See, eg, Dickie, above n 38, 113; Harris, above n 6, 52.
93 Qld Publications Act ss 4, 12.
94 WA Act s 64(1). See also WA Act pt 11 concerning the registration of premises.
95 WA Act ss 62 (publications), 81(1) (films), 89(1) (computer games).
96 Qld Games Act sch 2 defines computer games as including such images. Cf Classification Act s 5A.
97 SA Act pt 7A; Vic Act pt 6; WA Act pt 7 div 6; NT Act pt VII.
98 WA Act s 5.
99 NT Act pt XI.
100 See Crimes Act 1900 (NSW) s 91H; Qld Games Act s 26, sch 2 (definition); Qld Films Act ss 3 (definition), 41; Qld Publications Act ss 3 (definition), 14; Criminal Law Consolidation Act 1935 (SA) pt 3 div 11A; Tas Act pt 8; Vic Act pt 12; Crimes Act 1958 (Vic) pt I div 1(13); WA Act ss 3 (definition), 60; Crimes Act 1900 (ACT) ss 64–5; Criminal Code Act 1983 (NT) sch I pt 5 div 2 sub-div 1. Whilst child pornography is defined as sexually depicting a person under or apparently under 18 years of age in Tasmania, the Australian Capital Territory and the Northern Territory, all other State jurisdictions define the crime as sexually depicting a person under or apparently under 16 years of age. See also Criminal Code Act 1995 (Cth) sch ss 474.19-24 regarding using telecommunications services for child pornography.
101 This argument was raised in a rare classification-related case, Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1997) 145 ALR 464 (Federal Court of Australia); Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1998) 82 FCR 225 ('Rabelais Case’), in which the work was classified RC for providing instruction or promotion in matters of crime. However, the argument by the work's producers, both in terms of the specific classification decision and the NCS, was rejected: Rabelais Case (1998) 82 FCR 225, 237-9 (French J), 246 (Heerey J), 257-9 (Sundberg J).
102 See Human Rights Act 2004 (ACT) s 16 (freedom of expression); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 15 (freedom of expression). Brief judicial comment on the Victorian provision was made in X v General Television Corp Pty Ltd [2008] VSC 344 (Unreported, Supreme Court of Victoria, Vickery J, 8 September 2008) [34]-[40] concerning the screening of the Underbelly television series in Victoria.
103 Griffith, ‘Censorship Controversies', above n 32, 5; Gareth, Griffith, ‘Censorship Law in Australia: Reflections on the Rabelais Case (1999) 10 Public Law Review 99, 99Google Scholar.
104 Classification Act pt 5 (see above n 36 and accompanying text). See also Griffith, ‘Censorship Controversies’ above n 32, 5; Griffith, ‘Censorship Law', above n 103, 99.
105 Classification Act ss 22G (additional content assessors), 22J (barring notices), 91(5) (the waiver of fees). The Commonwealth Attorney-General may also provide for AAT review in a scheme relating to the assessment of television series films: Classification Act s 14B(4)(f).
106 The AAT can review decisions only if the relevant enactment provides that it can: Administrative Appeals Tribunal Act 1975 (Cth) s 25.
107 See Australian Constitution s 75(v) (High Court of Australia); Judiciary Act 1903 (Cth) s 39B (Federal Court of Australia); Roger, Douglas, Douglas and Jones's Administrative Law (5th ed, 2006) 657-61Google Scholar.
108 This involves a decision (s 5), conduct relating to a decision (s 6), and the failure to make a decision (s 7).
109 See below Part III(D).
110 Concerning the meaning of ‘decision', and the enactment requirement, see Administrative Decisions (Judicial Review) Act 1977 (Cth) ('ADJR Act’) s 3(1). See also Douglas, Administrative Law, above n 107, 677-84 ('decision’); 670-7 ('enactment’); 665-70 ('administrative character’); 695-25 ('justiciability’). These issues did not seem to bar judicial review in the Rabelais Case: see Rabelais Case (1998) 82 FCR 225, 256-7 (Sundberg J).
111 See, eg, Rabelais Case (1998) 82 FCR 225, 259-60 (Sundberg J).
112 This path was probably taken in the Rabelais Case due to the appellants’ facing potential criminal charges. It was also taken, unsuccessfully, by the NSW Council for Civil Liberties in NSW Council for Civil Liberties Inc v Classification Review Board (No 2) (2007) 159 FCR 108. The grounds of review argued in that case were that the decisions in question involved errors of law, were an improper exercise of power under Classification Act s 44, were not based on sufficient evidence, and were not authorised by the Classification Act.
113 See above n 22 and accompanying text.
114 Enright, above n 22, 22.
115 See Classification Act s 42; above n 38 and accompanying text.
116 History of Cooperative National Scheme, above n 67, 2.
117 See, eg, Classification Review Board, ‘Review Board Determines Viva Erotica X 18+’ (Press release, 7 December 2006) <http://www.classification.gov.au/resource.html?resource=937&filename=937.pdf> at 13 March 2009.
118 For the history of Australian censorship, see generally Peter, Coleman, Obscenity, Blasphemy and Sedition: 100 Years of Censorship in Australia (revised ed, 1974)Google Scholar; Ina, Bertrand, Film Censorship in Australia (1978)Google Scholar; History of Cooperative National Scheme, above n 67; Roger, Douglas, ‘Saving Australia from Sedition: Customs, the Attorney-General's Department and the Administration of Peacetime Political Censorship’ (2002) 30 Federal Law Review 135Google Scholar.
119 According to at least one commentator, ‘the guidelines lack clarity, and are poorly drafted': Tara, Gutman, ‘Lolita's Lesson Learned’ (1999) 155 Communications Update 18, 21Google Scholar.
120 Attorney-General's Department, Classification Policy Research <http://www.ag.gov.au/www/agd/agd.nsf/Page/Classificationpolicy_Research> at 28 July 2007.
121 Ibid.
122 See Urbis, Keys Young, 2004 Community Assessment Panels (2005) iiGoogle Scholar; Keys, Young, Community Assessment Panels Report (2000) 5Google Scholar; Keys, Young, Community Assessment Panels Report (1998) 6Google Scholar. These are available at ibid.
123 Classification Review Board, above n 117.
124 For a discussion of the potentially ambiguous meaning of the term ‘offensive', see Pitman, above n 91, 14.
125 See Guidelines for the Classification of Publications 2005, above n 15, 16-19.
126 See Guidelines for the Classification of Films and Computer Games, above n 62, 5-6.
127 Harris, above n 6, 26, quoting Roth v United States, 354 US 476, 484 (1957).
128 Harris, above n 6, 28. This justification is the newer of the philosophies, and is often used in terms of gender equality and/or sexual violence. See also, eg, Michelle, Evans, ‘What's Morality Got to Do With It? The Gender-based Harms of Pornography’ (2006) 10 Southern Cross University Law Review 89Google Scholar.
129 Harris, above n 6, 53. See also Rebecca, Huntley and Jane, Mills, ‘Reformers Aim for Uniform Legislation’ (1998) 140 Communications Update 30, 30Google Scholar.
130 See Peter, Hutchings, ‘Censorship, Violence and the Law’ (1993) 9 Australian Journal of Law and Society 43, 44Google Scholar.
131 See, eg, Gabriel, Fleming, ‘“The Proof of the Pudding is in the Eating“: Questions About the Independence of Administrative Tribunals’ (1999) 7 Australian Journal of Administrative Law 33Google Scholar, 47-9 concerning appointments to the Migration Review Tribunal.
132 Classification Act s 48(2).
133 Attorney-General's Department, National Classification Scheme <http://www.ag.gov.au/www/agd/agd.nsf/Page/Classificationpolicy_Nationalclassificationscheme> at 28 July 2007; letter from Kelly Williams, Assistant Secretary, Classification Operations Branch to Michael Dunstan, 27 July 2007.
134 Daryl Williams, ‘From Censorship to Classification’ (Speech delivered at Murdoch University, Perth, 31 October 1997).
135 Tina, Kaufman, ‘Call for Public Scrutiny of Classification System’ (2000) 163 Communications Update 13, 13Google Scholar.
136 See, eg, Mark Metherell, ‘States Brand Job Selection a Charade', The Sydney Morning Herald (Sydney), 14 April 2007, 4.
137 At the time of writing, some Board members do have industry experience, such as Joseph Mlikota and David Simon of the Classification Board, and Anthony Hetrih of the Classification Review Board.
138 See Marcus Casey, ‘Sex, Violence and Other Classified Information', The Daily Telegraph (Sydney), 6 May 2005, 37. It is not clear how individual members, or the number of members, are selected for classifications, although ‘straightforward’ decisions often have three members, whilst ‘blockbusters’ often have seven. However, it is argued that a RC-classified film should be seen by a majority of permanent Classification Board members, including the Director: see Griffith, ‘Censorship Controversies', above n 32, 4.
139 Concerning the appointment of Mr McDonald discussed above, it was argued that his appointment would ‘ensure the board remained ‘broadly representative of the Australian community'': Peter Ker, ‘Censure as PM's Pal Turns Censor', The Age (Melbourne), 14 April 2007, 4.
140 See, eg, Griffith, ‘Censorship Controversies', above n 32, 2; Byrne, above n 38, 16. It is also arguable that such a selection process leaves the Boards lacking in the technical expertise: see, eg, Des Partridge, ‘Film Doyen Blasts Censors', The Courier-Mail (Brisbane), 8 August 2003, 12.
141 Classification Act s 50(1). This cannot be done for the Classification Review Board.
142 Classification Act s 48(1), (3).
143 Classification Act s 50(2).
144 Griffith, ‘Censorship Controversies', above n 32, 3-4.
145 Kaufman, above n 135, 13.
146 Ibid. Kaufman also suggests that these three temporary members were specifically called by the Commonwealth Attorney-General to reverse the initial appraisal, due to the personal dislike of the film by government members.
147 Interview with Pamela O'Connor, Senior Lecturer, Monash University (Telephone interview, 26 April 2007). For the independence of tribunals generally, see, eg, Kristy, Richardson, ‘Defining Judicial Independence: A Judicial and Administrative Tribunal Member Perspective’ (2006) 15 Journal of Judicial Administration 206Google Scholar.
148 Classification Act ss 38, 39.
149 Clark, above n 1, 6.
150 Ibid.
151 This is unlikely, according to Byrne, above n 38, 16.
152 Barry Divola, ‘Censors Working Overtime', The Sun-Herald (Sydney), 25 September 2005, 22.
153 Clark, above n 1, 6.
154 See Classification Website <http://www.classification.gov.au/special.html?n=251&p=62> at 13 March 2009.
155 Classification Act s 43(1)(d); Classification (Publications, Films and Computer Games) Regulations 2005 (Cth) reg 14; sch 1 pt 8. Cf Classification Act s 91A.
156 Most non-government review applications are made for general release films by distributor companies: see Classification Website <http://www.classification.gov.au/special.html?n=262&p=66> at 28 July 2007.
157 Classification Review Board decisions note this fact. See, eg, below n 177.
158 Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No 39 (1995) [2.11].
159 Classification Act s 42(1)(d).
160 See ADJR Act s 3(4).
161 Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493, 527, 530 (Gibbs J).
162 Gutman, above n 119, 18. Originally, three interest groups wished the film reclassified RC because of their belief that it condoned child abuse. The two groups that eventually applied for reclassification were both organisations from Western Australia; one had 30 members, whilst the other had six.
163 Classification Act s 42(3)-(5). See also Classification (Publications, Films and Computer Games) Amendment Act (No 1) 2001 (Cth). This has some similarity with the Administrative Appeals Tribunal Act 1975 (Cth) s 27: interview with Pamela O'Connor, above n 147. For ‘restricted decision’ see Classification Act s 42(5).
164 Ogle v Strickland (1987) 13 FCR 306, 319-20 (Lockhart J), 321-2 (Wilcox J).
165 Gutman, above n 119, 18. In the Lolita case, the two interest groups in question consisted of six and 30 members respectively.
166 Classification Act s 91; Classification (Waiver of Fees) Principles 2000 (Cth).
167 See, eg, Casey, above n 138.
168 See above n 2.
169 See, eg, Griffith, ‘Censorship Law', above n 103, 102.
170 For administrative tribunal informality and flexibility generally, see, eg, Fleming, above n 131, 53.
171 Griffith, ‘Censorship Controversies', above n 32, 4.
172 See generally Harris, above n 6. See also Beattie and Beal, above n 4, 177-84.
173 See generally LexisNexis, Halsbury's Laws of Australia (at 2 July 2008) 80 Civil and Political Rights, II Civil Rights, (1) Equality and Discrimination, C Discrimination, ‘VIII Racial, Homosexual and HIV or AIDS Vilification’ [80-700]-[80-710].
174 For the principles of the Code, see above Part II(C).
175 Butler and Rodrick, above n 4, 368-70.
176 See also Gutman, above n 119, 21.
177 See, eg, Classification Review Board, The Absent Obligation: And Expel the Jews and Christians from the Arabian Peninsula (2006) [5] <http://www.classification.gov.au/resource.html?resource=880&filename=880.pdf> at 13 March 2009, in which the Classification Review Board mentions in passing the Rabelais Case, and cites Chief Executive Officer of Customs v Carman (Unreported, District Court of Queensland, McGill DCJ, 2 November 2004). The decision in the latter case, which in turn refers to the Rabelais Case, considers the meaning of ‘promotion’ and ‘incitement'. See also Classification Review Board, The Peaceful Pill Handbook (2007) <http://www.classification.gov.au/resource.html?resource=989&filename=989.pdf> at 28 July 2007, which quotes extensively from the Rabelais Case. However, John Dickie, former director of the Classification Board, has noted the crime matter raises difficulties for classification: Dickie, above n 38, 116. Furthermore, Merkel J in obiter has questioned what ‘crime’ in this context actually means: Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1997) 145 ALR 464, 478 (Merkel J). For the Classification Review Board seeking legal advice, see, eg, NSW Council for Civil Liberties Inc v Classification Review Board (2006) 236 ALR 313 (Edmonds J); Griffith, ‘Censorship Law', above n 103, 102.
178 See, eg, Harris, above n 6, 51; Divola, above n 152.
179 For normative efficacy, see above n 157 and accompanying text.
180 See, eg, the issuance of general visas and the Migration Review Tribunal.
181 See above n 28 and accompanying text.
182 See above n 163 and accompanying text.
183 See above n 162 and 167 and accompanying text.
184 See above n 38 and 146.
185 See above Part III(C).
186 See above n 17 and accompanying text.
187 See above n 158 and accompanying text.
188 Ibid.