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"X" Rated Films and the Regulation of Sexually Explicit Material

"X" Rated Films and the Regulation of Sexually Explicit Material

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 15/2003 by Gareth Griffith
In June 2002 the Legislative Council Standing Committee on Social Issues released a report titled, Safety net? Inquiry into the Classification (Publications, Films and Computer Games) Enforcement Amendment Bill 2001 – Final Report: On-Line Matters . That report included the following recommendation:

The Attorney-General consider either establishing a licensing scheme, similar to that which operates in the ACT to allow controlled premises to sell X-rated material in NSW or taking more enforcement action against breaches of the legislation.

Further to this, on 30 April 2003 a notice of motion was moved in the Legislative Council that leave be given for a Private Members’ Bill, sponsored by the Hon Peter Breen MLC, ‘to amend the NSW Classification (Publications, Films and Computer Games) Enforcement Act 1995 to remove the prohibition on the sale of films classified “X”, and for other purposes.

These developments serve as the basis for this paper on X rated films. Its major findings are:

  • X rated films are legally available for sale or hire from the ACT or the Northern Territory (p 2).
  • In the States, the law only permits X rated films to be possessed for personal use. X rated films are not, and never have been, legally available for sale or hire in NSW (p 3).
  • Prior to the introduction of the X classification in 1984, sexually explicit films were available for sale in NSW. They were unclassified and subject to the State’s indecency laws (p 3).
  • The X classification is a restrictive category of films that is defined to be unsuitable for minors (p 3).
  • The X classification is also defined under the National Classification Code to exclude all violent content. Depictions involving coercion and non-consent have been banned in X since 1984, with later prohibitions being placed on sexually assaultive language, fetishes and purposefully demeaning depictions (p 3).
  • While all classification decisions for NSW are made under the Commonwealth Classification Act – the Classification (Publications, Films, Computer Games) Act 1995 , enforcement of the law is a matter for the State, under the Classification (Publications, Films, Computer Games) Enforcement Act (NSW) (p 3 and p 19).
  • Specific offences relating to the sale, production and distribution (but not possession by adults) of X rated films are found under Part 2 of the NSW Classification Enforcement Act 1995. The private exhibition of an X film in the presence of minors is an offence under this legislation (s. 14) (p 22).
  • An offence of publishing indecent articles (other than child pornography) is specifically created under section 578C (2) of the Crimes Act 1900 (NSW). Whether an X film constitutes an ‘indecent article’ would be for the courts to decide. The proposed Draft Classification Enforcement Amendment Bill 2003 would amend the Crimes Act by omitting ‘or X’ from paragraph (e) of the definition of article in section 578C (1) (pp 24- 25).
  • Two conclusions can be drawn from the enforcement statistics. One is that relatively few cases are brought under the relevant provisions of the Classification Enforcement Act 1995. The second is that, for those cases where a finding of guilty is recorded for a principal offence, most occur under section 6 (a), where a fine is the most common outcome. Section 6(a) provides for the offence of selling or exhibiting a film classified RC or X (p 30).
  • The current ACT X film licencing scheme has been in place since 1996. According to the Registrar for this scheme, Tony Brown, there is a high level of compliance with the relevant licensing conditions, something that is helped ‘by the fact that the industry is now controlled by a smaller number of players and in the main these are publicly listed companies’ (p 31).
  • Every aspect of the debate about X rated films is contested, none more so than research findings on the effects, or lack of effects, of viewing sexually explicit material. The recent research of Flood and Hamilton on youth and pornography in Australia has proved controversial (pp 32-41).
  • At this stage, social science research is unlikely to answer the legal and policy questions at issue in the X rated debate in any definitive way. However, certain benchmarks are established in Australian law and policy. For example, it recognises the potential harmful effects that may be caused by sexually violent pornography. For this reason, such material is banned (p 41).
  • From one standpoint, over recent years the base line of Australian law and policy has moved beyond a primary concern with ‘harm’ towards a greater emphasis on ‘offensiveness’, as seen in the banning of all fetishes from the X classification. From another standpoint, recent policy has reflected a different and broader conception of ‘harm’, one that encompasses a concern for the physical (and psychic) well-being of participants in sexually explicit material, as well as a concern for the ‘social harm’ that may be caused by such material. This reminds us that very different results on the harmful effects (or lack thereof) of pornography can be reached depending on how ‘harm’ is defined (p 42).
  • Various surveys and opinion polls have been conducted over the past decade or so (pp 42-46). The available results are set out in Appendix D.
  • The largely ACT based legitimate X film industry has around 430,000 persons on its mail order list (p 47). Various claims are made about the size of the black market in NSW, which is estimated to have a turnover of $45 million in video sales alone (p 50).
  • In recent years some art-house films, depicting sexually explicit material, have been classified R. Explicit sex education films have been permitted in R since the early 1990s (p 53).
  • Whatever the merits or demerits of an X film licencing scheme, ultimately the debate will revolve around competing and conflicting perceptions of the content of X rated films (p 58).