FEDERAL Attorney-General Robert McClelland and Justice Minister Brendan O’Connor have announced a shake-up of censorship law in Australia through a review of the 1995 Classification Act.

This act determines where the line is drawn on various categories and forms of media. It legislates different levels of “intensity and explicitness” in images and words, setting out what can be accessed by various age groups in Australia. It designates whether different media can be viewed in private (for example by a couple in their home) or in public, such as at a movie theatre.

The Classification Act is primarily concerned with what we commonly call entertainment, news and information. More than any other federal act, its success relies on accurately gauging public opinion, and it is one of the main pieces of legislation that defines “Australian morality”.

Julia Gillard’s government is asking the Australian Law Reform Commission to undertake the review, with submissions being sought throughout this year.

It will be unable to report to the government until at least mid-2012 and the government most likely won’t be able to act on the recommendations until 2013 — close to another federal election. Hence it could be 2014 before this review bears any fruit.

At the same time, there are four other reviews of the Classification Act, or aspects of it, being undertaken by various agencies.

In an appalling waste of resources, the Senate committee on legal and constitutional affairs has also announced an “inquiry into the Australian film and literature classification scheme”.

This owes much of its existence to its deputy chairman, Liberal Party senator Guy Barnett, a man as driven on the censorship of sexual material as was his right-wing Tasmanian predecessor, former independent senator Brian Harradine.

Barnett’s comments during Senate estimates hearings last year on young adults appearing in erotic material revealed he seems overly concerned with the fact such material is available in Australia at all. It would not be surprising if this inquiry was dominated by issues of teenage sexuality and may be fundamentally flawed before it even starts.

Barnett claims the National Classification Scheme is not working — a view shared by his detractors. But what does he propose? He wants to extend the act to include art, billboards and music videos. The terms of reference for this committee read like an ambit claim from the Soviet information ministry where it is forbidden to say or print almost anything about sex.

Second, the beleaguered Minister for Communications Stephen Conroy is also calling for a review of one of the classifications within the act, namely the Refused Classification. This is being done to ensure his benchmark classification for the internet filter does not take out too much material that is legal in the real world. This would include references to safe drug use and to euthanasia.

Third, the Department of Broadband, Communications and the Digital Economy is calling for a review of the effects of so-called convergence in media and entertainment in Australia. This is ultimately the reason why the ALRC is being asked to review the act in the first place, so why couldn’t they be combined into one inquiry?

Fourth, the Attorney-General has announced an inquiry into billboard advertising.

The internet and the convergence of media have rendered many parts of the Classification Act obsolete. In 1995, when the act was introduced, a magazine in a newsagency, an X-rated film in an adult shop, a TV program shown after 9pm, or an early website on dial-up were relatively separate entities.

Now they are all potentially available on a mobile phone in a matter of seconds. In 15 years the changes have been exponential and if it takes three or four years for these reviews to be completed, the accelerating rate of change will have rendered many recommendations out of date.

If we wait until after the next federal election — which Labor may well lose — any recommendations will be based on outdated technology.

All these inquiries need to align Australian censorship law with genuine public opinion and morality. Yet, remarkably, since 1988 the federal government has not conducted a professional opinion poll concerning the controversial issues involved in the Classification Act.

This has been left to industry clients of the Classification Board, which is upset that the Standing Committee of Attorneys-General has ignored public opinion in censorship decisions.

A 2005 survey by Bond University showed that 88 per cent of Australians supported an R18+ classification for video games. This classification has been debated for more than six years and seems to have been stalled by SCAG, which is caught between public opinion and a bias towards placating religious lobby groups.

Since 1988, the X-rated film industry has commissioned more than a dozen national polls that show a consistent support rate of 72 per cent for legal sales. It’s quite legal to buy an X-rated film over the internet.Yet, time and time again, SCAG has refused to address the discrepancy between state and federal laws, which in some states has seen some vendors of X-rated material sent to jail and bankrupted. The federal government accepts this disingenuous situation and continues to claim we have a uniform classification scheme in line with public opinion.

At present, the Classification Act is skewed towards minority religious and right-wing groups. It does not reflect the morality of those attending an Aussie barbecue, a suburban shopping centre, a sporting event or art gallery.

It certainly does not reflect the morality of most Europeans and Americans, or even New Zealanders. Australia’s prurient attitudes to sex and adult themes in films and computer games are a mystery to Europeans, who have been painting X-rated masterpieces for centuries and hanging them in the best galleries in the world.

Americans have freedom of sexual and adult ideas enshrined in their Constitution through the First Amendment. Many can’t understand why Australian adults don’t litigate for the freedom to watch X-rated films and play R-rated games. The fact is we can’t, because we don’t have a bill of rights. The US First Amendment protects free speech unless it is obscene. This forces American courts to consider the meaning of obscenity. But with our Classification Act, Australian courts have to accept what our politicians have enacted.

It’s significant that the review of the act has been called in the name of both McClelland and O’Connor. Since becoming Attorney-General, McClelland has demonstrated little interest in censorship issues, and his presence now may be a response to the many individuals and industry groups who claim the classification scheme is broken and unworkable. However, a proper repair job needs more than input from Labor’s right-wing faction.

The two federal Labor ministers intimately concerned with the review would do well to draw on the philosophies of earlier reformist attorneys-general, including Gareth Evans, and other civil libertarians such as Australian Democrats founder Don Chipp.

The Weekend Australian, February 12, 2011