That’s classified: the hypocrisy and discrimination of Australia’s censorship regime

For over a year, public libraries across Australia have been locked in negotiations with State and Federal governments over censorship. Unlike the New Zealand case of Into the River, when the entire country was talking about the see-sawing part-restriction and temporary ban on Ted Dawe’s young adult novel, very few Australians would even be aware of this situation. But the current negotiations highlight just how ridiculous Australia’s censorship regime is, and how hypocritical our political leaders are.

It’s not officially called ’censorship’, of course - Australia has ‘classification’. The crux of the problem is that under this system, anything that is not officially classified is either ‘unclassified’ or, if it has run the gauntlet, ‘refused classification’. In Australia it is unlawful to sell, distribute, rent, or exhibit a film or video game that has not been classified - so ‘refused classification’ is an obtuse way os saying “banned”. But aside from the obscurantist language, the big problem with Australia’s system is that video games and films are banned by default until they are given a classification.

Pay to Play

To understand why this is a problem for public libraries, it helps to understand how libraries procure material, and what sort of material they hold in their collections. In multicultural Australia, most public libraries hold material in several community languages. Often the high demand items in these community language collections are audio-visual - DVDs and, perhaps, music CDs. Unsurprisingly, the overwhelming majority of this material is filmed, produced and manufactured overseas, and the commercial market in Australia is very small. So whilst a local library service may cater to, say, a locally significant Maltese-speaking community, that community is commercially insignificant. This distinction is important when the mechanics of the Classification system are revealed. The Classification Board is funded by film and game makers - if you want to sell or exhibit your film or game, you have to pay for the privilege of having it classified. The minimum cost is $550, and for most films or TV series on DVD (61-120 minutes) it will be $730. Per film. As an importer of a language like Maltese, you are likely to have, at most, perhaps a dozen customers for each title. Even with a generous markup, the Classification fees are likely to exceed your entire profit on the title - perhaps even exceed the entire gross income. This is clearly unsustainable. For this reason, suppliers have simply neglected to submit foreign-language material to the Classification Board before selling it to libraries, and everyone pretended not to know they were breaking the law. Last year, libraries in New South Wales became concerned that they may be liable, and sought legal advice. The answer was fairly clear - libraries probably haven’t been breaching the law by purchasing and displaying unclassified material, but suppliers certainly have. As a consequence of this public legal advice, most public libraries across New South Wales and Victoria have ceased purchasing unclassified DVDs until the matter is resolved.

Confusing, arbitrary, inconsistent

The obvious solution to this problem is to change Australia’s arbitrary and biased Classification laws, but things aren’t quite that simple. Whilst the Classification Board is a national body linked to the Federal Attorney General’s office, enforcement of their decisions is actually governed by the States, for Constitutional reasons. Every State and Territory has more or less uniform Classification legislation, but any State or Territory can also, at least in theory, overrule the Classification Board and re-classify or de-classify titles within their borders. This also gives them the power to allow broad exemptions to the law - and that is what is being looked at in both New South Wales and Victoria to allow public libraries to once again purchase unclassified material. But the very fact that this can be done - and that State governments have made it clear that they have no intention of prosecuting libraries or library suppliers - shows how ridiculous and arbitrary Australia’s classification regime is.

The system is inconsistent both in terms of enforcement - with eight different jurisdictions making independent decisions about whether or not to enforce the law - but also in terms of what is required to be classified. Some types of films and games are exempt, whilst books are exempt by default - except when they’re not. So a DVD of a live concert by, say, Peaches, is exempt from classification and can be sold or lent to anyone, but if basically the same content was packaged as a feature film it would probably be close to an MA15+ rating. George R. R. Martin’s A Song of Ice and Fire series of novels can be freely lent to anyone, even though the DVDs of the television series based on them (Game of Thrones) are rated R18+. But look for American Psycho in your local library and you’ll only find the R18+ rated DVD on the shelf - the book is classified as Restricted literature, and by law libraries are not allowed to store it where people under 18 years of age might be able to access it.

The whole classification system is deeply flawed, and based not on logic or consistency, but fear. Conservatives fear that children will be corrupted, and that “standards of morality, decency and propriety” will be offended. Politicians fear that conservative voters will punish them if they relax censorship laws. This fear is driving poor policy and punishing cultural minorities, library users, and small businesses. Whilst some might argue that Australia should simply do away with our censorship system, if we’re going to have one there are two ways I think it could be vastly improved without materially changing the standards. These could be introduced together, or separately.

Self-regulation

The simplest way to level the playing field would be to allow publishers and importers to self-regulate. With a clear set of classification guidelines, Governments could simply allow publishers to classify their own material. This would allow for the complete elimination of the Classification Board. If a complaint is made about a classification, it could be considered by the Classification Review Board, as is currently the case. Publishers could be penalised for flagrant or repeated mis-classifications, and the system would largely manage itself. Dealing with classifications in this way would save an enormous amount of time and money, and the end result would be basically the same as what we currently have.

Equivalence

The second technique, equivalence, could either be brought in as an (inferior) alternative, or work in tandem with self-classification. Legal equivalence is a long-standing concept in international law. Essentially it involves to countries or states agreeing that their laws on a particular matter are so similar that courts will consider certain decisions to be ‘equivalent’ in both states. An example is banking law in Europe, where (pre-Brexit) banks licenced to operate in Britain are generally able to operate in France without obtaining a French licence, or driving licences in Australia, where every State and Territory issues their own licenses but recognises those issued by the others.

Whilst film classification and rating systems vary from country to country, there are many broad similarities - as Wikipedia’s Motion Picture Content Rating System Comparison Table shows. To go back to our earlier example, under an equivalence scheme, an importer of Maltese films could simply put an Australian PG sticker on material rated Maltese PG, an M on Maltese 12 and 12A, an MA15+ on Maltese 15, and an R18+ on Maltese 18. If the system was combined with self-classification, the Classification Review Board could perhaps only review decisions where an importer has self-classified something differently to the equivalence guidelines (there is never going to be exact equivalence between different countries’ ratings).

The future

Some of these problems will simply disappear as films and games eventually come to be exclusively distributed over the internet. But the last thing we should want is for all the present problems to be transferred to a giant internet censorship regime. Australia’s censorship system is broken. Not only because it continues to ban books, but because it favours large publishers with deep pockets and mass audiences. It systematically criminalises films and games with niche Australian audiences. It is incoherent and inconsistent. Even the governments and agencies responsible for enforcing the law don’t really believe in it. Surely we can do better.