The current scope of RC content

10.19 The Classification Act, the Code and the relevant guidelines together outline whether certain content is to be classified RC. Some examples of RC content are discussed below. A number of RC classification decisions have been tested in litigation.

Item 1(a) content—certain matters presented in an offensive way

10.20 The idea of certain content being ‘offensive’ to community standards underpins some of the rationales for the RC classification. 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 th[at] 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.^[24]

10.21 In ALRC Report 55, the ALRC observed that ‘[c]urrent policy sees “offensiveness” mainly in terms of sex and violence and, particularly, any combination of the two’.^[25]

Fetish activity

10.22 The guidelines pertaining to RC in the Guidelines for the Classification of Films and Computer Games specifically provide that ‘[g]ratuitous, exploitative or offensive depictions of sexual activity accompanied by fetishes or practices which are offensive or abhorrent’^[26] are to be classified RC.

10.23 These Guidelines provide that the X 18+ classification for films and computer games cannot accommodate fetishes such as:

• body piercing;
• application of substances such as candle wax;
• ‘golden showers’;
• bondage;
• spanking; and
• fisting.

10.24 Adult entertainment films depicting sexual activity between consenting adults have been classified RC for containing live portrayals of such fetishes.^[27]

10.25 If a fetish is not on this list, 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. ^[28]

10.26 It should be noted that 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 publications. Only publications which describe and depict fetishes where it is apparent that there is no consent or where there is physical harm would constitute RC content.

Item 1(b) content—offensive depictions or descriptions of children

10.27 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 tables and in other parts of the Code.^[29] The phrase has been subject to judicial consideration in respect of the X 18+ category for films.^[30] In that context, the Federal Court determined that the so-called ‘offensiveness’ test ‘is not determined by a mechanistic majoritarian approach. Rather, it calls for a judgment about the reaction of a reasonable adult in a diverse Australian society.’^[31]

Child sexual abuse

10.28 Child sexual abuse is a form of child abuse. Bravehearts Inc, a group of child protection advocates, has argued that ‘child sexual assault’ should be distinguished from ‘child abuse and neglect’, as they are different and require different responses.^[32] However, as one commentator has observed, ‘it is generally accepted that children are harmed whenever child pornography is created, disseminated and viewed’.^[33]

10.29 The ALRC has elected not to use the term ‘child pornography’ in this Discussion Paper unless quoting from those who do. The Internet Watch Foundation (IWF) cogently explained the importance of refraining from using such terminology:

The IWF uses the term child sexual abuse content to accurately reflect the gravity of the images we deal with. … [C]hild 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.^[34]

10.30 Child sexual abuse need not be depicted for the media content to be classified RC. It may be so classified if it is a verbal description.^[35]

Sexual nudity involving minors

10.31 The Guidelines for the Classification of Publications define ‘sexualised nudity’ as including ‘poses, props, text and backgrounds that are sexually suggestive’.

Sexual activity involving minors

10.32 Any representation of persons less than 18 years of age involved in consensual sexual activity could potentially be RC, even though they may be legally permitted to consent to sexual activity. For example, ‘sexting’, which refers to ‘sending sexually explicit or sexually suggestive text messages’ as well as ‘the electronic transfer of nude and semi-nude images via mobile phone’.^[36]

10.33 Further, 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 [that is, a holy virgin] 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.^[37]

Item 1(c) content—promoting, inciting or instructing in certain matters

10.34 This category 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)—upon which item 1(c) of the Code was based—shows that the original expression was ‘promotes, incites or encourages terrorism’.^[38] 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.^[39] While the explanatory statement suggests why the reference to ‘terrorism’ needed to be deleted, it does not explain why the new expression was chosen as a replacement.^[40]

10.35 Judicial consideration of item 1(c) content has focused on matters of crime. Perhaps this is because, as Merkel J remarked, ‘violent conduct will often involve criminal conduct’.^[41] The Federal Court of Australia has expressly rejected the contention that the crime must be a serious one.^[42] As Merkel J observed, ‘what may be a less or more serious crime may often be a matter in the mind of the beholder’.^[43]

10.36 The phrase ‘matters of violence’ in item 1(c) of the tables in the Code has not yet been subject to detailed judicial interpretation.

Content instructing how to commit crime

10.37 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,^[44] and, secondly, there must be ‘some element of encouraging or exhorting the commission of crime’.^[45] An objective test is used to determine whether the second element is met.^[46] Accordingly, the actual intent of the author or publisher is not relevant.^[47] 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.^[48]

10.38 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’.^[49] The decision was confirmed by the Classification Review Board.^[50] 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.^[51]

10.39 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 and was ‘intended for seriously ill and suffering people for whom there is little hope that their quality of life will ever recover to a level that is satisfactory to them’.^[52] 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)’, amongst other things.^[53]

Drug use

10.40 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 also promoted such drug use.^[54]

Content promoting or inciting crime

10.41 The Federal Court has expressly rejected the argument that the words ‘promote’ and ‘incite’ contain a requirement to look to the effect or likely effect of the action.^[55]

10.42 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 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,^[56] but the application was dismissed.^[57]

Section 9A content—advocating a terrorist act

10.43 When judgment was reserved in this case brought by the NSW Council for Civil Liberties,^[58] the Australian Government released a discussion paper about material that advocates terrorist acts. 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.^[59]

10.44 The Australian Government had hoped that agreement could be achieved through the SCAG to amend the Code and guidelines as they pertain to RC in this respect.^[60] However, the required unanimous support was not forthcoming,^[61] so the Parliament of Australia amended the Classification Act by inserting s 9A.^[62] The Act adopted the same use of the terms ‘advocates’ and ‘terrorist act’ that are used in the Criminal Code (Cth).^[63] The Classification Board has classified some online content as RC on the basis of s 9A of the Classification Act.^[64]

Computer games that are unsuitable for minors

10.45 As there is currently no R 18+ classification category for computer games—although this position is soon to change—computer game content that is unsuitable for a minor to see or play must be classified RC. The relevant guidelines provide that ‘[c]omputer games that exceed the MA 15+ classification category will be [RC]’.^[65]

10.46 On this basis, in March 2011 the Classification Review Board classified the computer game, Mortal Kombat, as RC on the basis of the violence it contained.^[66] By contrast, the Classification Board classified the game, The Witcher 2: Assassins of Kings, as RC because it ‘contains sexual activity related to incentives and rewards’.^[67]