History of censorship and classification

2.2 The history of censorship and classification in Australia is set out elsewhere and will not be recounted in detail in this Discussion Paper.[1] A précis of this history might start with important reforms that took place after the landmark 1968 case Crowe v Graham, which involved the interpretation of ‘obscene’ and ‘indecent’ under NSW indecent publications legislation. The High Court of Australia upheld the use of a ‘community standards’ test—referring to offence to the ‘modesty of the average man’—rather than adopting the common law test of obscenity, based on the ‘tendency to deprave and corrupt’ and precedents dating back to 1868.[2]

2.3 Subsequent to Crowe v Graham, reforms first announced by the Minister for Customs and Excise, the Hon. Don Chipp MP in 1970, and enacted by the Whitlam Government in 1972, saw the Australian approach shift from a closed and highly interventionist model of censorship into a more open, liberal and accountable regime, based around classification as the norm and direct banning of material as the exception.

2.4 The National Classification Scheme has, since the early 1970s, primarily revolved around the principle of classification rather than censorship, although any classification scheme is also likely to involve some censorship, based upon what has come to be known as the ‘community standards’ test. Gareth Griffith has described the distinction in these terms:

Prima facie classification implies that nothing is banned [but] only restricted if necessary. Classification has certainly a more neutral flavour than the more pejorative term censorship … Whereas censorship is suggestive of public order and idea of the public good, classification is associated with the facilitation of informed choice in a community of diverse standards.[3]

2.5 The ALRC, in the 1991 report Censorship Procedure (ALRC Report 55), made the observation that much of what had occurred since the 1970s has involved classification rather than censorship, and on that basis, recommended renaming the Film Censorship Board as the Classification Board, and the Censorship Review Board as the Classification Review Board:

Rather than focusing 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.[4]

[1] A useful brief history is provided in Senate Legal and Constitutional Affairs References Committee, Review of the National Classification Scheme: Achieving the Right Balance (2011), ch 2. Other historical accounts include I Bertrand, Film Censorship in Australia (1978); B Sullivan, The Politics of Sex: Prostitution and Pornography in Australia since 1945 (1997).

[2]Crowe v Graham (1968) 121 CLR 375, 379.

[3] G Griffith, Censorship in Australia: Regulating the Internet and Other Recent Developments (2002), 3.

[4] Australian Law Reform Commission, Censorship Procedure, ALRC Report 55 (1991), [2.6].