Introduction
Artists should be aware that they might be required to have their works classified. Whether an artist has an obligation to have a particular work classified depends on a number of factors, including the type of work, its content and how it is being used.
Different works are subject to different classification systems, including:
- Films, computer games and publications classification is administered by the Office of Film and Literature Classification (OFLC).
- Television, radio and internet classification is overseen by the Australian Broadcasting Authority (ABA).
- A system of voluntary labelling guidelines for audio tapes, records and CDs manufactured in Australia has been developed by the Australian Record Industry Association (ARIA) and the Australian Music Retailers’ Association (AMRA).
There is no formal classification system applicable to the performing arts and visual arts. However, even if there is no obligation to have a work classified, if the work is arguably obscene, indecent or blasphemous, there may be limitations on how and where the work can be exhibited or displayed.
Films, Computer Games & Publications
Classification of films, computer games and certain publications that are displayed, demonstrated, sold, hired, advertised or publicly exhibited is generally compulsory.
Classification of films, computer games and publications is made by the Classification Board, which makes decisions in accordance with the general principles and criteria outlined in the Classification (Publications, Films and Computer Games) Act (Cth) 1995, the National Classification Code and the relevant Classification Guidelines.
Classification decisions must give effect to the following principles:
- adults should be able to read, hear and see what they want;
- minors should be protected from material likely to harm or disturb them;
- everyone should be protected from exposure to unsolicited material that they find offensive; and
- community concerns about depictions that incite or condone violence, especially sexual violence, or that portray people in a demeaning manner, should be taken into account.
A film, computer game or publication may be refused classification if it:
(i) 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;
(ii) describes or depicts a minor who is, or appears to be under 16 in a way likely to offend a reasonable adult; or
(iii) promotes, incites or instructs in matters of crime or violence.
Films & Computer Games
Films (which includes cinematograph films, slides, videos, DVDs and CDs with a visual image or any other form of recording from which a visual image can be produced) are classified into 7 categories (G – General; PG – Parental Guidance; M15+ – Mature; MA15+ – Mature Accompanied; R18+ – Restricted; X18+ – Restricted; and RC – Refused Classification) depending on the presence of classifiable elements: violence, sex, language, themes, drug use and nudity. Computer games are classified into five categories (G – General; G(8)+ – General; M15+ – Mature; MA15+ – Mature Restricted; and RC – Refused Classification) based on the same classifiable elements.
There are legally enforceable age restrictions for MA15+ (person under 15 must be accompanied by a parent or adult guardian), R18+ and X18+ (person must be 18) and RC material cannot be sold, hired etc. The other classification categories are recommendations.
It is generally an offence to display, demonstrate, sell, hire, publicly exhibit or advertise a film or computer game that is required to be classified without having it classified. It must also clearly display its classification in accordance with legal requirements. Applications for classification should be submitted to the OFLC.
Under certain circumstances, a film or computer game may be exempt from classification. Computer games and films created for business, accounting, professional, scientific or educational purposes may be exempt from classification unless they would, if classified, be classified M15+ or above. In addition, films created for current affairs, hobbyist, sporting, family, live performance, musical presentation, religious, community or cultural purposes may be exempt. For example, a film created for a live performance is a film comprising a documentary record of a live artistic performance or a film which is used within such a performance. Applications for classification of exempt films are not necessary. A film can also be granted an exemption for classification if it will be screened as part of a film festival.
As film is defined so broadly in the Classification Act it means that an artist exhibiting a moving image or video artwork, that is not exempt from classification, is legally required to have the artwork classified or seek an exemption before it can be displayed, demonstrated, sold, offered for hire, publicly exhibited or advertised.
Publications
Publications (which broadly refers to books and magazines, but may also include other printed matter such as calendars, cards, catalogues etc) are generally not required to be classified unless they contain depictions or descriptions of sexual matters, drugs, nudity or violence that are unsuitable for a minor to see or read or likely to cause offence to a reasonable adult if sold as an unrestricted publication.
Applications for classification of publications should be submitted to the OFLC.
There are 4 classification categories for publications: Unrestricted (publications which may be freely delivered, displayed, sold and advertised), Categories 1 and 2 – Restricted and RC. Generally, Category 1 Restricted can only be displayed and sold in a sealed wrapping and Category 2 Restricted can only be displayed and sold in a restricted premises. Restricted categories can only be sold to people over 18 and cannot be legally sold in Queensland. RC material cannot be sold.
It is generally an offence to sell, display or advertise a publication that is required to be classified without having it classified, or to display it other than in accordance with the classification requirements.
Television and Radio
The Australian Broadcasting Authority (ABA) is an independent federal statutory authority responsible for the regulation of radio, television and internet content in Australia which administers the Broadcasting Services Act (Cth) 1992, is responsible for classification of programming for television, radio and the internet. Each industry or industry group regulated by the ABA is governed by its own code of practice, which must be approved by the ABA (although the national broadcasters, the ABC and SBS, are self-administering and are not required to obtain the ABA’s approval of their codes of practice).
Television
Under the code of practice established by the commercial television networks, each broadcast day is broken up into specific classification zones with only material considered suitable for that time period to be shown. The classification of a program is judged according to the frequency and intensity of key elements (violence, sexual behaviour, nudity, coarse language, drugs, suicide and adult themes) as well as the time of day it is broadcast. Contextual factors such as merit, purpose, tone, camera work, and relevance of the material to the program are also taken into account.
Radio
Under the Commercial Radio Code of Practice programs that:
1) are likely to incite, encourage or present for its own sake violence or brutality;
2) simulate news or events in such a way as to mislead or alarm listeners;
3) present as desirable the misuse of alcohol;
4) present as desirable the use of narcotics, tobacco or any illegal drug;
5) depict suicide favourably or presents suicide as a means of achieving a desired result; or
6) are likely to incite or perpetuate hatred against or vilify any person or group on the basis of age, ethnicity, nationality, race, gender, sexual preference, religion or physical or mental disability;
will not be broadcast unless they are presented reasonably and in good faith for academic, artistic (including comedy or satire), religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about any act or matter.
Community Broadcasting
The Code of Practice governing community broadcasting specifies that material which may:
1) incite, encourage or present for their own sake violence or brutality;
2) simulate news or events in such a way as to mislead or alarm listeners;
3) present as desirable the misuse of drugs including alcohol, narcotics and tobacco;
4) stereotypes, vilifies or discriminates against a person or group on the basis of ethnicity, nationality, race, gender, sexual preference, religion, age or physical or mental disability;
will not be broadcast, although factors such as audience, explicitness, context and the social importance of the event are relevant.
Narrowcasting Television and Radio Stations
Open narrowcasting television services follow the same classification system as the OFLC. Material classified X by the OFLC will not be broadcast while those rated R are shown only after being modified to fit the MA criteria and only between 9.30pm and 5am. Narrowcasters in general (that includes open and subscription television and radio narrowcasters) will not show material that: incites, or gratuitously vilifies racial and social groups; depicts putting a person in a hypnotic state; is designed to induce an hypnotic state in the audience; or uses a method like "subliminal perception" to convey information or messages below or near the threshold of normal awareness.
Subscription (Pay) Television
Apart from restrictions on programs inciting or vilifying racial or social groups, depicting or inducing hypnotic states, or employing "subliminal" messages, subscription television broadcasters follow the OFLC Guidelines for the Classification of Film and Videotapes (see "Publications, Films, Computer Games and Advertising" section above).
Internet
Amendments passed in the Broadcasting Services Amendment (Online Services) Act (Cth) 1999 which altered the Broadcasting Services Act (Cth) 1992 have made the classification of material available online, and hosted in Australia, subject to the same scheme as that applied to publications, films and computer games by the OFLC. The regulatory scheme for the internet operates on industry codes of practice and a complaints basis, so that when a person finds material offensive they can contact the ABA about whether the material potentially falls within a prohibited category. The ABA has the power to initiate its own investigation into suspect websites. It may refer on-line content to the OFLC for classification.
Australian-hosted material that is classified ‘RC’ or ‘X’ is removed by an ABA order notifying the Internet Contact Host or Server to shut down the site. Additionally they can be asked to apply a ‘restricted access system’ to ‘R’ rated material to prevent viewing of the site by children. Internet service providers are not responsible for monitoring the content of the server; however, they must comply with any orders issued by the ABA to take a site down.
Music
ARIA and AMRA have developed an industry code of practice, which requires the labelling and handling of audio recordings containing explicit and potentially offensive lyrics. Recordings containing strong lyrics are classified into 3 categories:
Level 1 – Warning: moderate impact coarse language and/or themes;
Level 2 – Warning: strong impact coarse language and/or themes;
Level 3 – Restricted: high impact themes. Not to be sold to persons under 18 years.
Recordings which exceed the criteria for Level 3 (which are those which contain lyrics that deal explicitly with and promote or incite or instruct in matters of hard drug abuse, criminal violence, sexual violence, bestiality, incest and child abuse) are not permitted to be sold in Australia.
Recordings which include visual images, for example an audio-visual recording of a concert, are considered a film and may need to be classified by the OFLC.
Performing Arts
Performances are not generally subject to classification, however where a performance forms part of a classifiable work (for example, a multi-media work) then the performance may impact on how the multi-media work is classified.
Performances anywhere in Australia that are arguably obscene, indecent or blasphemous risk infringing common laws (court made laws) and/or the relevant state’s or territory’s criminal legislation.
Works will be considered to be obscene, and therefore unlawful, where they are offensive to contemporary community standards. It can be extremely difficult to predict with any degree of certainty whether a particular work will be considered obscene. Determination of what is offensive and what are contemporary community standards involves highly subjective assessments. Issues to consider in determining whether a performance or other work is likely to breach such laws include: the content of the performance or work, the context of any potentially offensive material, the location of the performance or work, the target audience, the manner in which the performance or work is promoted and the extent to which prospective audience members or prospective visitors are warned of possibly offensive elements.
South Australia has specific legislation dealing with the classification of theatrical performances. Under the Classification of Theatrical Performances Act 1978 (SA) a theatrical performance that causes offence to adults or is unsuitable for children may have conditions imposed on the advertisement and performance of the production.
Visual Arts
Visual artworks are not generally subject to classification, however where a visual artwork forms part of, or is itself, a classifiable work (for example, a film, moving image or video art, or computer game) then the visual artwork may impact on how the film or computer game is classified and it will need to be classified before it can be exhibited or sold. See the previous section on ‘Films, Computer Games or Publications’ for further information, or contact the OFLC.
Visual artworks that are publicly displayed, and which are arguably obscene, indecent or blasphemous, risk infringing common laws and/or the relevant State’s or Territory’s criminal legislation. For more information see the comments made about obscenity under the heading ‘Performing Arts’ above).
Printed reproductions of artworks such as exhibition catalogues may also be subject to classification as “publications” by the OFLC.
Further Information
Office of Film and Literature Classification www.oflc.gov.au, ph: (02) 9289 7100
Australian Broadcasting Authority www.aba.gov.au, ph: (02) 9334 7700
Australian Record Industry Association www.aria.com.au, ph: (02) 9267 7996
Australian Music Retailers’ Association www.amra.org.au, ph: (03) 9507 2547
Communications Law Centre www.comslaw.org.au, ph: (02) 9385 7385/ (03) 9248 1278
Electronic Frontiers Australia www.efa.org.au, ph: (07) 3424 0201
Internet Industry Association Codes of Practice www.iia.net.au/codes.html, ph: (02) 6232 6900
Watch on Censorship Inc www.watchoncensorship.asn.au
Legislation can be searched for and viewed at www.austlii.edu.au