The “banning” of Ken Park: a brief review of the facts and issues

Introduction

Ken Park’s co-director, Larry Clark, is widely known for his earlier films Kids and Bully which created impact with their confronting treatment of violence and sex amongst American teenagers. He is a seriously regarded filmmaker and few doubt that he has something to say. In Australia, it seems, he just wasn’t permitted to say it.  This article attempts to clarify some of the facts (and some of the myths) surrounding the ‘banning’ of Ken Park in Australia.

Freedom of Expression vs Protecting Society

Film classification is undoubtedly a restriction on freedom of expression. Although the psychology and broader social issues are complex, it is important to consider some of the reasons why we have it.  Like, for example, anti-racist legislation (which is also a restriction on freedom of expression) it aims to reduce the risk of detriment to a society. Classification laws reflect the view that films depicting, say, sexualised violence or child abuse, when seen by an individual can ‘normalise’ these types of behaviours in that individual (particularly where the individual has a predisposition such behaviours)^[1]. The resulting risk of detriment is obvious when you consider, say, child pornography. But what about artistic works which are not intended as pornographic, yet contains some similar ‘high impact’ elements? As the following explains, this is the difficult category into which Ken Park fell.

The Office of Film and Literature Classification

In Australia, under the Commonwealth classification act^[2] (the Commonwealth Act)  films and videotapes, whether they are made locally or come from overseas, have to be classified before they can be sold, hired or shown publicly.^[3] Classification is obtained through application to the Office of Film and Literature Classification (the OFLC). The Classification Board (the Board) determines initial applications for classification. An avenue of appeal is provided by the Classification Review Board (the Review Board).

Film Festival Exemptions

The Director of the Classification Board, under a NSW state act^[4] may exempt a film festival from the requirement that a film be classified.^[5] In doing so, however, the Director must ‘give effect’ to certain guidelines^[6]. On 19 May 2003, the Sydney Film Festival, lodged an application for festival exemption for Ken Park along with around 200 other films which the organisers intended to screen at the 2003 Festival.

The MRA Application

Unbeknown to the Sydney Film Festival, however, Ken Park’s Australian distributor at the time, MRA Entertainment, had already lodged an application to the Board for classification of Ken Park for video sale or hire.

The Classification Board considered MRA’s application and on 21 May refused Ken Park classification. In its reasons for the decision, the Board cited a number of scenes which it says warranted the decision. In the Board’s opinion, these scenes are graphic, depict the characters as minors, involve sexualised violence as well as one scene of implicit sexual abuse and, in some instances, were ‘unnecessarily long in duration’.

When considering an application such as MRA’s, the Commonwealth Act states that the Board is required to take into account, amongst other things, (1) the standards of morality, decency and propriety generally accepted by reasonable adults and (2) the literary, artistic or educational merit of the film.^[7]

In addition to these, the Board is also required to apply certain guidelines, which are set out in the Classification Code(the Code). The Code states that a film may be refused classification if it,

• describes or depicts sex, drug misuse, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that it offends the standards of morality, decency and propriety generally accepted by reasonable adults;
• describes or depicts a minor who is, or appears to be under 16 in a way likely to offend a reasonable adult; or
• promotes, incites or instructs in matters of crime or violence.

In making its decision the Board took into account the above scenes together with the stated guidelines, including the fact that the MRAApplication was for ‘sale and hire’ not film festival exhibition. The film’s artistic integrity was not, it seems, disputed.

Why could Ken Park not have received an R rating?

The guidelines state that for a film to receive an R rating, sexual activity may be ‘realistically simulated’. As the Board took the view that the sexual activity in Ken Park was ‘actual sex’, and not realistically simulated, it exceeded the R rating.

Why could it not receive an X Rating?

The X rating is a special and legally restricted category which may contain sexually explicit material (usually for pornographic films). The guidelines in respect to an X rating, however, are very strict in respect to what other material the film may contain. Specifically, the guidelines for an X rating do not permit any depictions of adult persons who look like they are under 18, or actors who are over 18 but are depicted as minors. Further, the category does not allow any violence or sexualised violence whatsoever. Consequently, because the Board concluded that Ken Park contains actors depicted as minors and scenes of graphic violence, including sexualised violence (together with explicit sex scenes) it exceeds the X rating.

The guidelines very clearly state that where films exceed R and X classification they will be refused classification. As such, the Board refused to classify Ken Park.

The Sydney Film Festival’s appeal to the Review Board

The Director of the Classification Board was then required to consider the Sydney Film Festival’s application for film festival exemption. The guidelines for film festivals, however, state that an exemption cannot be granted for a film which has already been refused classification. As the Board had refused to classify Ken Park, the Director on 28 May was obliged to refuse the Sydney Film Festival’s application for exemption.

On 29 May the Sydney Film Festival lodged an appeal to the Review Board asking them to review the Director’s decision. The Review Board, however, only has jurisdiction to review decisions of the Board and not decisions of the Director.

Consequently, the Sydney Film Festival lodged a further application for review of the Board’s decision in respect to MRA’s original application. Although the Film Festival was not the original applicant, it was able to gain ‘standing’ to have MRA’s decision reviewed. It is important to note, therefore, that although the Sydney Film Festival lodged the appeal, the Review Board were reviewing the Board’s decision based on MRA’s application for video sale or hire  – not the application for film festival exemption.

The Review Board reviewed the specific scenes that were discussed by the Board and agreed that despite the film making a serious attempt to grapple with issues facing many teenagers and having significant artistic merit, cumulatively, the scenes contained material that exceeded the guidelines for an R or X rating and therefore had to be refused classification.

Consequently, the film was removed from the proposed Sydney Film Festival programme and cannot now be sold, hired or shown in Australia.

Conclusion

Interestingly, it does not appear that the Sydney Film Festival presented any significant ‘expert’ evidence in respect to the films artistic merit. Had they done so, it is arguable that both the Board and Review Board could have placed even more importance on it. Whether it would have been enough to outweigh the guidelines is another matter, but, theoretically, it may have, as the requirement that the Board consider a film’s artistic or educational merit (set out in the Commonwealth Act) should ordinarily override both the guidelines or regulations.

Finally, as can be seen, it seems that the guidelines do not specifically cater for works or artistic merit which are not intended to be pornographic but do not easily fit into another classification rating. Until the guidelines are reviewed, therefore, filmmakers should familiarise themselves with the current guidelines if they are considering making a film which contains ‘high impact’ scenes or themes. When applying for classification they should provide the best evidence they can of artistic integrity – possibly even ‘expert’ evidence.

For more information on classification see the Office of Film and Classification website.

Peter Carstairs is a former solicitor with the Arts Law Centre.