By David Marr*
As published in ART+law, September 2001
The Arts Law Centre increasingly gives advice on classification issues in the Arts. David Marr, long time supporter of Arts Law and censorship, reviews the performance of the Attorney General at a recent forum on censorship. The forum was chaired by Margaret Pomeranz with a panel including David Marr, the Federal Attorney General Daryl Williams and Film Critic Julie Rigg. At a time when the Office of Film and Literature Classification is calling for submissions of the review of its guidelines such debates are sure to be ongoing.
"The Howard Government pursues classification policies not censorship policies," declared Daryl Williams QC at the Chauvel Cinema in Sydney in May. The Attorney General was addressing a meeting called by the Australian Film Institute, the Film Critics Circle and Watch on Censorship lately troubled by what SBS's Margaret Pomeranz called "a feeling that things are changing in Australia, that we are not quite as free as we were some years ago to see and read what we want."
Williams is a lawyer. He was there to defend his government's position. It was a skilled yet illuminating performance. He admitted Pasolini's Salo had been banned, that R rated films can never be seen on Australian free to air television or open cable channels and that the government has recently chopped "10 to 15%" of porn videos. But in the Attorney's view this does not amount to a system of censorship. "The Howard Government strongly believes in the rights of the individual. We believe that our society and our economy function at their best when people are free to make their own decisions. Censorship is alien to liberal philosophies and traditions."
While declaring adults "should be able to read, hear and see what they want", Williams also insisted "Government needs to take into account the entire spectrum of views that exist in the community. And we need to find a meaningful 'middle ground' which reflects these view." At several points he argued governments must respond to complaints even if, in the case of porn on the Internet, the action taken isn't very effective. "What we've done there is declaratory." In Williams' judgement, the views of the organizations that called the Chauvel meeting were "at the libertarian end of the spectrum."
Those groups had called the meeting after two worrying developments: government intervention to reclassify Hannibal and the new definition of "person aggrieved" in the Classification (Publication, Films and Computer Games) Act (the Act) which will come into operation from March 2002.
Censorship battles are fought over trophies. Having Salo banned in May 1998 was a great trophy for those morals groups who had worked for years to overturn the 1993 release of the film. Australia was one of the last countries to release Pasolini's classic and perhaps the only one anywhere to ban it once again. The rebanning happened under the old "aggrieved persons" provisions of the act. The "aggrieved person" was Denver Beanland, then Attorney General of Queensland. At his request, the Classification Review Board put under lock and key the one scratched print of Salo still doing the rounds of Australian cinemas.
The next trophy fight was over "Lolita". The novel was at the centre of censorship battles in the 1960s and was, for many years, banned in Australia. The first film with James Mason and Shelley Winters had a troubled history before its release in this country. The same sorts of morals groups that fought those two rounds regrouped last year to oppose the release of the new, lugubrious version of the film. But the campaign failed. The Office of Film and Literature Classification (OFLC), released the film with an 'R' certificate restricting it to adults 18 years and over.
The fight against Lolita did not end there. Three anti-pedophile groups HALO (Helping All Little Ones), ASSCA (Adult Survivors of Sexual Child Abuse) and CPC (Child Protection Connection) - applied for "aggrieved persons" status to argue before the Classification Review Board for the banning of the film. They failed.
The clients of the Review Board are, essentially, film-makers and distributors, plus State and Federal attorneys-general. The board held that the anti-paedophile groups were no more ``aggrieved'' in law than any other groups in the community that might not like Lolita being released. They, along with all other citizens, they had to live with the decision of the OFLC.
About this time, there was public agitation over "Hannibal" to which the government buckled. The first adventures of Hannibal Lecter provoked a major trophy contest in the early 1990s when the OFLC gave "The Silence of the Lambs" an M rating. This meant it was open to anyone while recommended for "mature audiences 15 years and over." Paul Keating was a leading figure in the push that followed to create a new classification category MA that closed the theatre to anyone under 15 not accompanied by an adult. The appearance of MA was generally welcomed.
But earlier this year when the new adventures of Mr Lecter were released with an MA rating, there was a fresh uproar. This time morals groups were demanding an R rating. Queensland's Censorship Minister Judy Spence approached Daryl Williams who applied for a review of Hannibal. The Review Board agreed to the tougher classification. Now Anthony Hopkins can only be seen pretending to eat the brains of living humans by Australians 18 years and over. The box office for Hannibal immediately dropped 60%.
Defending these government interventions, Daryl Williams said: "The number of complaints about the work of the OFLC, apart from complaints about those few high profile films, is negligible." Williams also pointed out that the Review Board has, lately, given more generous classifications than the OFLC to a couple of films: releasing Romance with an 'R' classification after it had been banned by the OFLC, and giving The Mexican an 'M' after the OFLC thought it deserved the tougher 'MA'.
But neither of those decisions involved political intervention. What worried the backers of the Chauvel meeting was the willingness of governments, in response to public pressure, to intervene in the process of film censorship - and to change the act to give "aggrieved persons" status to morals groups like those
anti-paedophile lobbiests who had tried and failed to ban Lolita.
Margaret Pomeranz asked the Attorney: where did the pressure come for this change Williams declined to answer. He said: "The government believes the amendment will, in relation to decisions where there is some community concern, introduce a greater degree of flexibility into the review process. The amendment will improve the effectiveness of the scheme by striking a balance between providing the community with an opportunity to seek review of classification decisions while ensuring that the process is not abused."
Moral hardliners have been working for this change since the early 1990s. There has been no public agitation. It's been entirely a backroom movement which might have got nowhere but for the troubles over Lolita. As the change went through the Senate, the Democrats' Brian Greig said: "You are opening the door to every lunatic fringe, nutter organisation and individual in this country to complain about every film that they want to. And let us be clear about this: they will not hold back.They must be salivating at the thought of having this tremendous opportunity.''
Of particular worry to the groups who called the Chauvel meeting, is the wording of the amendment which gives standing only to those organizations whose "activities relate to the contentious aspects of [a film's] theme or subject matter". That opens the door to lobby groups concerned with paedophilia, rape, homosexuality, violence, perhaps even smoking but appears to leave the door closed to organizations like Watch on Censorship whose "activities relate" to free speech. The "theme or subject matter" of Lolita isn't free speech, it's underage sex.
At the Chauvel, Williams said: "Civil liberties groups, like other community groups, will be able to apply to the Classification Review Board for standing." He was not able to assure the meeting they would get it. The Attorney was even less encouraging when asked by film critic and broadcaster Julie Rigg if the Film Critics Circle would have standing. "No. Interest in film doesn't distinguish you from any other member of the community."
Williams reminded his critics that a public enquiry into the OFLC's classification guidelines is to be held this year. "If you think the guidelines are deficient you have an opportunity to suggest changes to the guidelines." A public discussion paper on changes will be released towards the end of August after many months delay while State and Federal Attorneys-General haggled over the text. This will be the first, full-scale review of government film censorship policies since 1996, said Williams "an opportunity for ongoing consultation on what the public wants."
The challenge for the public will be, as always, to make itself heard in Canberra over the lobbying of the morals groups. Unfortunately, civil libertarians can't expect support in this from the Labor Party. The Democrats believed they had persuaded Labor to join them in voting down the new ``aggrieved persons'' provisons of the act but at the last minute Labor backed the Coalition. The Opposition has done so on all censorship issues throughout the life of the Howard Government.
*David Marr is a former board member of the Arts Law Centre of Australia
