The current scope of RC content

11.11 Some examples of RC content are discussed below. Given that content classified RC results in that content being banned for sale or distribution in Australia, it is perhaps unsurprising that a number of RC classification decisions have been tested in litigation.

Certain matters presented in an offensive way—Code item 1(a)

11.12 The idea of certain content being ‘offensive’ to community standards underpins some of the rationale for the RC classification, with its origins in the reform of Australian censorship laws undertaken in the 1970s. For example, item 1(a) of the Code tables refers to content that offends against the standards of morality, decency and propriety generally accepted by reasonable adults; and item 1(b) refers to content causing offence to a reasonable adult. Further, some parts of the Guidelines also refer to offensiveness.

11.13 In NSW Council for Civil Liberties Inc v Classification Review Board, the Attorney-General for Australia submitted that

in imposing an ‘effect’ requirement in [item 1] (a) … the legislature has recognised that while the content specified in [that] paragraph … may be offensive to some segments of the community, it may not be to others. In that situation, assessing the content in accordance with the standards and sensibilities of reasonable adults will strike an appropriate balance between the general principle that adults should be able to read, hear and see what they want, and the competing community concerns about such matters as drug misuse or addiction, crime, cruelty or violence.^[10]

Fetish activity

11.14 The Guidelines for the Classification of Films and Computer Games specifically provide that ‘gratuitous, exploitative or offensive depictions of sexual activity accompanied by fetishes or practices which are offensive or abhorrent’^[11] are to be classified RC.

11.15 These Guidelines also provide that the X 18+ classification for films cannot accommodate fetishes such as body piercing; application of substances such as candle wax; ‘golden showers’; bondage; spanking; or fisting.

11.16 The listing of these fetishes first appeared in the Guidelines for the Classification of Films and Videotapesin 2000. Before then, guidelines expressly provided that the X 18+ classification could accommodate ‘real depictions of sexual intercourse and other sexual activity between consenting adults, including mild fetishes’.^[12] However, no depiction of ‘offensive fetishes’ was permitted.^[13] The guidelines at that time defined ‘fetish’ as:

An object, an action, or a non-sexual part of the body which gives sexual gratification. Fetishes range from mild to offensive. An example of a mild fetish is rubber wear. Offensive fetishes include abhorrent phenomena such as coprophilia.^[14]

11.17 At that time, films and videos that contained elements beyond those permitted in the X 18+ classification—for example, offensive fetishes—were to be classified RC.^[15]

11.18 The inclusion of the above-mentioned six fetishes in the Guidelines for the Classification of Films and Videotapes, as well as other amendments, including changing the definition of ‘fetish’ so only the first sentence above remained, served to ‘further restrict the content of the material permitted in the X classification’.^[16]

11.19 This change arose in the context of the Australian Government’s proposal for the abolition of the X 18+ classification and for the establishment of a new classification category, NVE (non-violent erotica), and the Government’s eventual decision to ‘retain the X classification for sexually explicit videos but with a more restricted content’.^[17] Since the listing of the fetishes in the relevant Guidelines, adult entertainment films depicting sexual activity between consenting adults have been classified RC for containing live portrayals of such fetishes.^[18]

11.20 If a fetish is not given as an example in the Guidelines, it does not necessarily mean that a live portrayal of it will not be classified RC. Other fetishes that have been depicted in an adult entertainment film and described in a fictional text have been classified RC.^[19]

11.21 The Guidelines for the Classification of Publications differ from those for film. Descriptions and depictions of ‘stronger fetishes’—defined as including bondage and discipline—are permitted in publications that would currently be classified as Category 2 Restricted. Only publications which describe and depict fetishes where it is apparent that there is no consent or where there is physical harm, or which contain exploitative descriptions or depictions of sexual activity accompanied by fetishes that are revolting or abhorrent, would constitute RC content.

Offensive depictions or descriptions of children—Code item 1(b)

11.22 The word ‘offensive’ is defined in both sets of the Guidelines as ‘material which causes outrage or extreme disgust’. The phrase, ‘likely to cause offence to a reasonable adult’, appears in item 1(b) of the Code tables and in other parts of the Code.^[20] The phrase has been subject to judicial consideration in respect of the X 18+ category for films.^[21]

Child sexual abuse

11.23 The Guidelines provide that publications, films and computer games are to be classified RC if they contain

descriptions or depictions of child sexual abuse or any other exploitative or offensive descriptions or depictions involving a person who is, or appears to be, a child under 18 years.^[22]

11.24 The use of the term ‘child sexual abuse’, rather than ‘child pornography’, may recognise that, as one commentator observed, ‘it is generally accepted that children are harmed whenever child pornography is created, disseminated and viewed’.^[23] The Internet Watch Foundation has explained:

The IWF uses the term child sexual abuse content to accurately reflect the gravity of the images we deal with. Please note that child pornography, child porn and kiddie porn are not acceptable terms. The use of such language acts to legitimise images which are not pornography, rather, they are permanent records of children being sexually exploited and as such should be referred to as child sexual abuse images.^[24]

11.25 As discussed in more detail below, the relevant terms used in the Criminal Code (Cth) are ‘child pornography material’ and ‘child abuse material’.^[25] The ALRC also uses ‘child sexual abuse content’ as a generic term in this Report.

Sexual activity involving minors

11.26 Any representation of persons less than 18 years of age involved in consensual sexual activity could potentially be classified RC, even though they may be legally permitted to consent to sexual activity. For example, ‘sexting’ content^[26] could fall within the bounds of the RC classification category—even where those involved are over the age of consent, but under 18 years of age. One submission to this Inquiry stated:

Sexting is another example where laws designed to pick up one group of people (users of child pornography) are inadvertently picking up private individuals who should not be expected to know better. That is, it is unreasonable that the law even has reach into such distribution.^[27]

11.27 The depiction of sexual activity involving a minor need not be ‘real’: the Classification Review Board determined that a Japanese animé film should be classified RC, because

the impact of the sex scenes involving the blonde novitiate are exploitative and as she is depicted as a child under 18 years … [T]he depictions are likely to cause offence to a reasonable adult.^[28]

11.28 The Guidelines for the Classification of Publications also refer to ‘sexualised nudity’, which includes ‘poses, props, text and backgrounds that are sexually suggestive’.

Promoting, inciting or instructing in crime—Code item 1(c)

11.29 This category of RC encompasses content promoting, inciting or instructing in matters of crime or violence. The legislative history of the relevant provision of the Classification of Publications Ordinance 1983 (ACT)—on which item 1(c) of the Code was based—indicates that the original expression was ‘promotes, incites or encourages terrorism’.^[29] However, in 1989 the ACT Government amended the relevant provision to ‘promotes, incites or instructs in matters of crime or violence’, because it determined that it needed to delete the term ‘terrorism’ from the Ordinance.^[30]

11.30 Judicial consideration of this content has focused on matters of crime. The Federal Court of Australia has expressly rejected the contention that the crime must be a serious one.^[31] Merkel J observed that ‘what may be a less or more serious crime may often be a matter in the mind of the beholder’.^[32] The phrase ‘matters of violence’ in item 1(c) of the tables in the Code has not been subject to detailed judicial interpretation.

Content instructing how to commit crime

11.31 The Full Court of the Federal Court has held that, in order for material to instruct in matters of crime, first, it must impart or teach the information as to how the crime can be committed,^[33] and, secondly, there must be ‘some element of encouraging or exhorting the commission of crime’.^[34] An objective test is used to determine whether the second element is met.^[35] Accordingly, the actual intent of the author or publisher is not relevant.^[36] Further, the Full Federal Court has determined that it is not necessary to show that the material was, in fact, likely to result in the commissioning of a crime.^[37]

11.32 A broad range of behaviour may constitute a crime. For example, an article entitled ‘The Art of Shoplifting’ in the university student newspaper, Rabelais, was classified RC on the basis that it ‘instruct[ed] in methods of shoplifting and associated fraud’.^[38] The decision was confirmed by the Classification Review Board.^[39] Both the Federal Court and the Full Federal Court dismissed the editors’ applications for judicial review of the Classification Review Board’s decision—including the submission that the relevant decision breached the editors’ implied constitutional right to freedom of political discussion and communication.^[40]

11.33 Another classification decision illustrative of the current breadth of item 1(c) of the Code is the Classification Review Board’s decision in respect of Dr Philip Nitschke and Dr Fiona Stewart’s book, The Peaceful Pill Handbook. This publication relates to assisted suicide and voluntary euthanasia.^[41] The Classification Review Board classified it as RC because it found that ‘it instructs in matters of crime relating to the manufacture of a proscribed drug (barbiturates)’, among other things.^[42]

Drug use

11.34 The Guidelines for the Classification of Publications provide that publications that contain detailed instruction in the use of proscribed drugs are to be classified RC. The Guidelines for the Classification of Films and Computer Games contain a similar provision but they also go further and provide that films and computer games that contain material promoting or encouraging proscribed drug use are also to be classified RC. The Classification Board has classified online content as RC because the text constituted detailed instruction in ‘recreational’ drug use and promoted such drug use.^[43]

Advocating a terrorist act—Act s 9A

11.35 In 2006, the Attorney-General for Australia applied to the Classification Review Board for classification of one film and eight publications that some considered incited terrorism. The Classification Board had decided that none should be classified RC, but the Classification Review Board classified two of the publications RC on the basis of item 1(c) of the Code. The New South Wales Council for Civil Liberties Inc sought judicial review of the latter two decisions,^[44] but the application was dismissed.^[45] While judgment was reserved in this case, the Australian Government released a discussion paper about material that advocates terrorist acts.^[46] The discussion paper stated:

There are community concerns about the public availability of material that advocates people commit terrorist acts. It is not certain that the national classification scheme adequately captures such material.^[47]

11.36 The Australian Government had hoped that agreement could be achieved through the Standing Committee of Attorneys-General (SCAG) to amend the Code and Guidelines in this respect.^[48] However, the required unanimous support was not forthcoming,^[49] so the Parliament of Australia amended the Classification Act by inserting s 9A,^[50] which provides that a publication, film or computer game that advocates the doing of a terrorist act must be classified RC.

11.37 The Act adopted the same use of the terms ‘advocates’ and ‘terrorist act’ that are used in the Criminal Code.^[51] The Classification Board has classified some online content as RC on the basis of s 9A of the Classification Act.^[52]

Computer games that are unsuitable for minors

11.38 At the time of writing, there is no R 18+ classification category for computer games and computer game content that is unsuitable for a minor to see or play must be classified RC. Accordingly, the Guidelines for the Classification of Films and Computer Games state that computer games that ‘exceed the MA 15+ classification category will be [RC]’.^[53]

11.39 In March 2011, the Classification Review Board classified the computer game Mortal Kombat as RC, on the basis of the violence it contained.^[54] The Classification Board also classified the game The Witcher 2: Assassins of Kings as RC because it ‘contains sexual activity related to incentives and rewards’.^[55]

11.40 However, if the Australian Parliament passes the Classification (Publications, Films and Computer Games) Amendment (R 18+ Computer Games) Bill 2012 then there will be an R 18+ category for computer games from 1 January 2013.