Censorship: No! Labelling: Yes!

After considering all aspects of arts-media censorship in Australia I cannot be other than opposed to it. Furthermore, censorship contravenes the fundamental principle of Mill’s great essay On Liberty, which is worth re-stating:

That principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection.

At the outset, it should be understood that the prosecution of criminal activity involving arts-media is not censorship, provided we are clear on what constitutes a crime. Thus, child abuse, euthanasia and terrorist material, although included in censorship law, are not considered here, but are the subjects of a separate opinion.

With regard to censorship, Mill’s principle should be the benchmark for determining how much (if any) interference with an individual’s choice of entertainment is warranted. Australia is a free and democratic nation based on, we are often reminded, the folklore principle of a fair go for all. This, more than anything else, means we accept the Millian principle as having been part of our culture since we hacked off the convict shackles.

On January 26 this year, we will celebrate the founding of English Australia for the 233^rd time. That much of our history is known to most of us, but few are aware that censorship, which came out with the First Fleet, will also have its 233^rd birthday. “I send this by a friend”, wrote a female convict in November 1788, “they read everything here”.

To begin, it must be fairly said that since the 1980s, what Bob Carr once called the “bad old days” of censorship have gone. Nevertheless, I believe it is now time “they” stopped “reading everything” and let Australians choose the arts-media entertainment they prefer. In fact, to paraphrase the National Classification Code (NCC), adults should be able to read, hear and see what they want provided minors are protected from material likely to harm or disturb them and everyone is protected from exposure to unsolicited material that they find offensive. Those provisions fall within the Millian concept, but censorship law doesn’t stop there.

Retain the ratings

Before proceeding to the more profound argument, which concerns the censors’ contentious decisions, I should state that I am not advocating abolition of the classifications (ratings), which are now well established as consumer advisories. The law includes guidelines as to how the Board should implement the NCC. These guidelines are available at no cost to all who want a copy. This means that, armed with their copies, those in the entertainment industry could, by following the guidelines, label their products as required by law just as easily as can the Board. Indeed, a current director Donald McDonald appears to agree that the bulk of his Board’s work is very much run-of-mill classifying. He said:

The very small number of decisions annually which attract controversy (comparative to the large number of decisions made by the Board) indicates that we may be getting the balance right between sense and censorbility.

I argue that industry, not the taxpayer, should do its own labelling work and further, the label (and/or advertisement where appropriate) should give a more detailed description of the product than is presently the case. At present the system fails the NCC’s offence and harm principles because the law requires the inclusion of only a minimal description of content such as “nudity”, “sex scenes”, “drugs” and so on. This does not necessarily satisfy the self-protection aim of protecting persons from material that may offend them, nor does it prevent minors from harm that the law perceives exists.

Some are shocked and offended when violence, sex scenes and the like are more graphic than they had been led to believe by the rating. While some “nudity” etc. might not be offensive to those of sensitive mind, other portrayals might be very offensive to them. A detailed description of contents in the labelling/advertising material would, therefore, be helpful. For example, suppose, instead of “sex scenes”, the description of a movie included something like this: “The (named) leading actors are portrayed naked, having passionate sexual intercourse in a variety of positions”. On reading that, the person who might have tolerated less explicit images but not those so graphic, would know to avoid the movie. There would then be no “unsolicited” exposure and that principle of the NCC would be satisfied.

The requirement that industry include descriptions of what a packaged item contains has been part of consumer law for a long time; what I am suggesting here is that arts-media be treated the same as any other consumable. There is also a financial reward for all here; industry would be spared the Board’s fee (around $750 or so per item) and the taxpayer would no longer have a Classification Board to support.

But that doesn’t account for the “very small number of decisions annually which attract controversy”.

Censorship’s hidden agenda.

Controversy arises from those parts of the law that I haven’t yet mentioned, namely section 11 of the censorship act and clause (d) of the NCC. They are as follows:

Section 11.

Matters to be taken into account in making a decision on the classification of a publication, a film or a computer game.

(a) the standards of morality, decency and propriety generally accepted by reasonable adults; and

(b) the literary, artistic or educational merit (if any) of the publication, film or computer game; and

(c) the general character of the publication, film or computer game, including whether it is of a medical, legal or scientific character; and

(d) the persons or class of persons to or amongst whom it is published or is intended or likely to be published.

The NCC.

(d) the need to take account of community concerns about:

(i) depictions that condone or incite violence,

particularly sexual violence; and

(ii) the portrayal of persons in a demeaning manner.

It can be immediately seen that, with the possible exception of NCC (d)(1), all the above provisions run counter to the Millian principle of self-protection, as I will now demonstrate.

Dealing with the possible exception first, there is a law against inciting violence and those who do so, by whatever means, including arts-media, are charged and tried on matters of fact. No need for censors there. As for sexual violence and (d)(ii), this is only relevant where there is an unwilling victim, but the censors have no way of knowing that. The evidence, given by victims, to the (USA) Meese commission on pornography (1986) makes disturbing reading but those days are over; even so, from that evidence, the theme of pornography then was sex, not violence. As to sexual violence, one need only look at web sites such as collarme.com, alt.com phonehumiliation.com and hundreds of others, to understand that millions of people want to be sexually abused and demeaned. However, because nobody but the person concerned can be demeaned, it is no business of others if that person wishes to be demeaned and to be portrayed so.

It is, perhaps, the provision of (d)(ii) that points up most clearly a hidden agenda. Censorship might be partly for self-protection but for the most part it appears to be for the protection of a set of standards to which those in authority aspire.

Mythical standards

Looking at community standards, there is the acceptance of a myth here that the “reasonable adult” is synonymous with whatever those standards are. Section 11(a) might just as well come right out and say, if you don’t agree with these standards, you are unreasonable. Former federal Attorney-General Daryl Williams took a different approach when he said:

the “reasonable adult” test acknowledges that individuals may have different personal tastes. In other words, although some reasonable adults may find the material offensive, and thus justify a restricted classification for it, others may not. They should be allowed to have access to the material if they wish.

The fact is, no government has ever had any idea what the standards are. (In discussions with Newspoll, I was advised that, to their knowledge, no survey had ever been done and such a survey would be complex and very expensive.) Donald McDonald’s immediate predecessor as chief censor, Des Clark, added weight to the myth when he said: “I am confident that the model of censorship we have in Australia does indeed make for a more decent society”. It is not known how Clark could come to this conclusion when there has never been a censorship-free period in Australia; so there is no way of knowing what the level of decency might have been without censorship. The best that can be said is censorship maintains the status quo of decency - whatever level that might be. So, it would seem, those of censorious bent have a target in mind; that of making Australians conform to some unspecified levels of morality, decency and propriety.

This has nothing to do with self-protection in the Millian sense; the same may be said of the rest of section 11. The quality, character and intended audience of arts-media are not matters of self-protection. Furthermore, the parenthetic “if any” in 11(b) indicates a degree of snobbery, especially as anything can be art. It is not for a few people to decide what is, and is not art; as Franny Moyle observed in her work, Desperate Romantics, “art was in the domain of the people now, and the people were its judge”. Many other art critics take the view that anything can be art, and yet, to paraphrase Moyle, a few of the old guard still try their hand at separating art from non-art - hence the law includes “if any” when requiring the Board to take “merit” into account. Clearly, the lawmakers have in mind something other than self-protection.

Lawmakers are the real censors

Decisions made by the Board must be seen in the light of the government’s guidelines for classifying arts-media materials. The Board is far from free to make up its own mind on controversial matters. It cannot lawfully act against the guidelines, as Maureen Shelley (Convener of the Review Board) confirmed when refusing to classify the movie, Ken Park. Thus, “guidelines” is a euphemism for “requirements” - the Board being required to act in a particular way. The guidelines state what shall be refused classification (RC) and the Board is bound to obey. Shelley’s chief objection to Ken Park was a 2-minute masturbation scene, which, she observed, the actor was enjoying. I fail to see what the actor’s enjoyment has to do with society’s self-protection, but the law believes it should interfere in such matters and so bans the showing of it. The movie, Baise Moi, the banning of which caused Bob Carr to refer to the bad old days, was first released and then its rating revoked because some people objected to it.

Ken Park and Baise Moi are two examples of many more than a “very small number” of controversial movies, but they need not be controversial if, again using Mill, it is accepted that each individual is the best judge of his or her own interests. It is not sufficient, I would argue, that some scenes are too violent, or there is too much sex, to ban arts-media. Correct and detailed labelling, as suggested above, would spare those who object, the offence of viewing such scenes. (My personal gripe is against vomit scenes, but the NCC doesn’t protect me from them.) The fact is, those who object want movies banned or heavily restricted because they object to them - they set themselves up as their brothers’ and sisters’ keepers. There is no “generally acceptable” standard. Thus, controversy arises every time one side thinks something is released that should be banned and vice versa, banned but should be released. This is why former Attorney-General Daryl Williams was moved to say:

The issue of censorship [. . .] forms a significant part of the correspondence I receive as the responsible Minister.

These letters either upbraid me for not stemming the tide of distasteful films, videos and publications coming into the country, or chide me for not allowing people to make absolute choices about what they wish to read, hear and see.

Donald McDonald, who took over as chief censor in 2007, seemed to echo Williams when referring to the correspondence the Board receives:

Everyone has a view, everyone believes they would make better decisions and everyone would more accurately reflect the views of the community!

McDonald cannot act against the law that leans so heavily on unspecified and unstated community standards that are the cause of so much controversy. The four people who sat as a Board of Review that banned Baise Moi did not act for everyone, but on an interpretation of the guidelines. The 50,000 or so Australians who saw the movie before it was banned had no problem with it (the few complainants excepted). If “everyone” would make a better censor, let everyone censor for themselves and their dependent youngsters. There is no community view on consumables but, rather, an aggregation of individual views that happen to coincide. Some approve of an item, some disapprove, some don’t have an opinion; communities are like that - opinions differ.

My opinion favours labelling over censorship. The Board would become unnecessary if arts-media items were required to include descriptions of contents, as do all other packaged consumables.

A final note

The Attorneys-General from all States and Territories were to meet with the Federal Attorney-General a week before Christmas to discuss the controversial R-rated video games issue. I wrote to the Federal Attorney-General, in time for that meeting, on the matter of labelling arts-media and transferring oversight of it the consumer affairs department. I had already written to NSW Premier, Keneally some weeks earlier on this subject; she, in turn passed my letter to Mr Hatzistergos, New South Wales Attorney-General. In my letter to the Federal A-G, I told him of my letter to Keneally-Hatzistergos and hoped those gentlemen would find a moment or two to discuss it. At the time of this writing, and although the video games issue was settled at that meeting, neither of the gentlemen has yet found the time to reply.