FEDERAL COURT OF AUSTRALIA

FamilyVoice Australia v Members of the Classification Review Board [2011] FCA 1014

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the second respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1        In this proceeding the applicant, FamilyVoice Australia (FAVA) seeks judicial review of a classification decision made by the Classification Review Board (Board) on 5 May 2010. The application for review of the Board’s decision is brought under s 5 of the Administrative Decision (Judicial Review) Act 1977 (Cth) (ADJR Act). The application was opposed by the second respondent, the Minister for Justice. The Board entered a submitting appearance.

2        At the heart of the Board’s decision is a film written and directed by Pier Paolo Pasolini. The subject of the decision was “the modified version of the film Salo o le 120 Giornate di Sodoma … in DVD format, along with accompanying material” (Salo). The Board, in a majority decision, gave Salo the same classification as had the Classification Board before it. The classification is “R18+ with the consumer advice ‘Scenes of torture and degradation, sexual violence and nudity’”.

Background

3        Given its content it is not surprising that Salo, in various formats, has a long history of classification in Australia. In its reasons, the Board gave the following synopsis:

Set in the Italian village of Salo (a seat of Fascist Government) during World War II, this film follows four sadistic fascist males (representing the four pillars of the Italian establishment: the Church, Politics, the Nobility and the Judiciary) who detain 16 young males and females and subject them to torture, degradation and sexual violence before executing some of them. A group of young “black shirts” accompanies the captors. The film follows the narrative structure of the Marquis de Sade’s 120 Days of Sodom and is divided into chapters including Anteinferno, Circle of Manias, Circle of Shit and Circle of Blood.

This two-disc DVD release contains substantial additional material including the Italian trailer for the film, a music film clip entitled ‘Ostia – The Death of Pasolini’ by Coil and documentary features entitled ‘Open your Eyes!’, ‘Ai Passi con Pasolini … Walking with Pasolini’, Salo: Fade to Black,’ ‘Whoever Says the Truth Shall Die’ and ‘Ostia’ (with director’s commentary). …

4        Since 1976 those charged with deciding if the film could be shown in Australia or in a particular State or Territory have found themselves attempting to find a balance between the artistic or social value of the film and its depictions of human depravity and degradation. Inevitably this question generates strong views on either side.

5        For example on 18 December 1992, pursuant to the Customs (Cinematograph Films) Regulations then current, the Film Censorship Board refused, by a majority of 7 to 4, to register the film. The majority found that:

… in combination, the visual and conceptual strength of the depictions of the forcing of sadistic sexual acts upon captive teenagers, the brutal violence, plus the disturbing acts of depravity, go beyond what is acceptable in terms of current community standards. …. these depictions exceeded any legitimacy as metaphor or allegory that could be claimed on their behalf ..

In essence … the film’s intellectual thesis was neither sufficiently clear nor compelling to support its relentless juxtaposition of such offensive acts …

6        In contrast the minority’s view was that,

… the film, whilst certainly challenging from a classification standpoint, could nonetheless be accommodated in the Restricted category … although the film deals with indecent or obscene phenomena, it does so in a manner which is neither indecent nor obscene in itself when viewed in the context of a film of merit where even the most problematic elements clearly serve the director’s metaphorical purpose. … the film is neither exploitative nor voyeuristic, but a powerfully realised political statement on the violation of innocence and freedom.

7        In the light of these comments it is not surprising that over the years the film’s classification and status has varied both with changing legislative requirements and, perhaps, changing community standards. Ultimately, however the present proceeding concerns only the decision of the Board made on 5 May 2010. That decision reflected the views of the majority.

The legislative framework for classification of films

8        The Board’s decision was made within the co-operative legislative framework consisting of the Classification (Publications, Films and Computer Games) Act 1995 (Cth) (Act), the National Classification Code (Code) and the Guidelines for the Classification of Films and Computer Games (Guidelines). The Act requires films to be classified in accordance with the Code and the Guidelines; s 9. The Guidelines, which are made under s 12 of the Act, are designed to assist the Classification Board in applying the criteria in the Code. As the title of the Act indicates it applies to publications, films and computer games. In these reasons it is necessary to consider only the provisions that apply to films.

9        The legislative framework for classification forms part of a co-operative national scheme for the classification of publications, films and computer games. The scheme is helpfully described in New South Wales Council for Civil Liberties Inc v Classification Review Board (No 2) (2007) 159 FCR 108 at [4]-[8]; see also Adultshop.Com Ltd v Members of the Classification Review Board [2007] FCA 1871 at [14]-[44].

10        Under the Act there are seven types of classification for films ranging from “G” (which allows general exhibition) to the severely restricted, “R 18+” and “X 18+” and to “RC” which applies when a film is refused classification; s 7. Under the national scheme, separate State and Territory laws deal with the consequences of not having material classified under the Act, and the enforcement of classification decisions made under the Act: see for instance the Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW). Section 20(1)(a) of the Act requires the Classification Board to provide consumer advice information about the content of the film in relation to all classifications except “G” or “RC”.

11        In classifying a film the Classification Board is directed by s 18 of the Act to assume that the film will be “published” only in the form submitted for classification. Any subsequent modification is not classified (s 21) and it follows that a separate application for classification of the modification must be made.

12        Section 11 of the Act lists matters that are to be taken into consideration in determining the classification of a film. They are:

(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 Code

13        In its current form, cl 1 of the Code provides that, as far as possible, classification decisions are to give effect to the following principles:

(a)    adults should be able to read, hear and see what they want;

(b)    minors should be protected from material likely to harm or disturb them;

(c)    everyone should be protected from exposure to unsolicited material that they find offensive;

(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.

14        Clause 3 of the Code contains a table setting out the categories of classification and a description of the qualities of films that would fall within that classification. The only two categories of present concern are the classifications R 18+ and RC. Films classified R 18+ are “Films (except RC films and X 18+ films) that are unsuitable for a minor to see”. Films that are to be classified RC are described as those that:

(a)    depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified; or

(b)    describe or depict in a way that is likely to cause offence to a reasonable adult, a person who is, or appears to be, a child under 18 (whether the person is engaged in sexual activity or not); or

(c)    promote, incite or instruct in matters of crime or violence.

The Guidelines

15        Additional assistance in the classification of films is given in the Guidelines. The introduction to the Guidelines explains that their purpose is to explain the different classifications “and the scope and limits of material suitable for each category”. The Guidelines identify three essential principles underlying their use. The principles concern context, impact and six classifiable elements.

16        The Guidelines stress the importance of context in determining “whether a classifiable element is justified by the story-line or themes”. This may involve recognising that “the way in which important social issues are dealt with may require a mature or adult perspective”.

17        In assessing the impact of a film it is necessary to take account of the cumulative effect of the individual classifiable elements and the purpose and tone of a film sequence. The Guidelines refer to a number of factors that may increase the impact including greater detail, lighting techniques, special effects, repetition and realism. They also make the point that the impact may be lessened where the treatment is verbal rather than visual, or incidental rather than direct. The Guidelines state that “the impact of material classified R 18+ should not exceed high”.

18        The third essential principle requires classification to take into account the following elements: themes, violence, sex, language, drug use and nudity. The Guidelines state:

The classification takes account of the context and impact of each of these elements, including their frequency and intensity, and their cumulative effect. It also takes account of the purpose and tone of a sequence, and how material is treated.

Classification R 18+

19        The Guidelines impose no restriction, per se, on themes, language, drug use or nudity in films classified R 18+. They permit violence including sexual violence “if justified by context”. Sexual activity “may be realistically simulated” but real sexual activity is not permitted. They state that the impact of material in this category “should not exceed high”. Under the Guidelines films classified R 18+ are legally restricted to adults however they note that some films in this classification “may be offensive to sections of the adult community”.

Classification RC

20        The Guidelines note that films that “exceed the R 18+ and X 18+ classification categories will be Refused Classification”. These films include those giving detailed instruction or promotion in relation to crime or violence or the use of proscribed drugs. The Guidelines also provide that RC classification will apply to films that contain the following material:

The promotion or provision of instruction in paedophile activity.

Descriptions or depictions of child sexual abuse or any other exploitative or offensive descriptions or depictions involving a person who is, or appears to be, a child under 18 years.

Gratuitous, exploitative or offensive depictions of:

(i)    violence with a very high degree of impact or which are excessively frequent prolonged or detailed;

(iii)    cruelty or real violence which are very detailed or have a high impact;

(iv)    sexual violence.

…

Depictions of practices such as bestiality.

Gratuitous, exploitative or offensive depictions of:

(i)    activity accompanied by fetishes or practices which are offensive or abhorrent;

(ii)    incest fantasies or other fantasies which are offensive or abhorrent.

The ADJR Act

21        Section 5(1) of the ADJR Act provides that a person “who is aggrieved by a decision to which this Act applies” may apply for an order of review on any one or more of the grounds listed in s 5(1)(a) to (j) inclusive. The applicant has sought review of the Board’s decision under subsections (e), (f), (h) and (j). The grounds are therefore:

(e)    that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f)    that the decision involved an error of law, whether or not the error appears on the record of the decision;

…

(h)    that there was no evidence or other material to justify the making of the decision;

(j)    that the decision was otherwise contrary to law.

22        Further elaboration of subsections (e) and (h) is to be found in ss 5(2) and (3) respectively. All of the grounds on which the applicant relies involve error of law and for the applicant to succeed it is necessary to show that the Board’s decision involved such an error. The applicant cannot rely merely on factual error or by taking issue with the Board’s assessment of the qualities of Salo. The Court has no jurisdiction to review the Board’s assessment of the merits.

The Board’s decision

23        As stated above the Classification Board classified Salo as R 18+. Section 44(1) of the Act provides that in reviewing a decision of the Classification Board, the Board must deal with the application for review in the same way as the Classification Board deals with an application for classification.

24        The original applicant for classification of Salo was Shock Records. The application for review was brought by the Minister for Home Affairs. The Board granted “interested party” status to FAVA, the NSW Council for Civil Liberties (NSW CCL), the Australian Family Association (AFA) and Flinders University Film Animation Comics and Television Society (FACTS). The Board received written submissions from Shock Records, FACTS and FAVA. Representatives of NSW CCL, AFA and FAVA made oral submissions to the five members of the Board who also viewed the film and accompanying additional material.

25        The Board found that the film had been correctly classified “R18+” with the consumer advice “Scenes of torture and degradation, sexual violence and nudity” and on 6 May 2010 issued a Classification Certificate. It revoked previous classification certificates that had been issued for Salo and stipulated the requirement under the Classification (Markings for Films and Computer Games) Determination 2007 that the film and associated advertising display the classification markings and consumer advice contained in that certificate.

The Board’s findings

26        The Board described the film “as a political allegory, critiquing both the corruption of fascist Italy and the consumerist commodification of Italy in the 1970s”. It found that the film contained “aspects or scenes of importance under various classifiable elements”. In relation to impact, it found that the mental and physical violence, the nudity and the implied sexual violence were high in viewing impact but justified by context.

27        In its reasons the Board described a number of violent episodes in the film. It found that the impact of the violence in the film:

is muted and mitigated by it being viewed mostly at a considerable distance and elevation, in extreme long shot through binoculars and the soundtrack consists of classical music only. There are no lingering close-ups of the violence and torture. The impact of the violence and torture is further mitigated by the age and relative lack of technological sophistication of the visual effects.

28        In making its finding that the nudity throughout the film was of high viewing impact the Board attached significance to the fact that the nudity occurred, “in the context of scenes of torture, degradation and implied sexual violence”.

29        The Board’s finding as to impact was sufficient, by itself, to exclude the possibility of classification as G, PG, M and, perhaps, MA 15+. It was, however, compatible with R 18+ classification. The Board found that both the scenes of sexual activity and the language in the film could be “readily accommodated within the R 18+ classification” as the sexual activity is implied and there are “virtually no language restrictions in that category”. It also noted that there was no drug use in the film.

30        Having considered the Guidelines the Board turned its attention to the Act and the Code. The Board considered elements of the Code and the Guidelines concerning description or depiction of a person who is, or appears to be, a child under 18. The Code provides that where the description or depiction of such a person would be likely to cause offence to a reasonable adult, the film should be refused classification whether the person is engaged in sexual activity or not. The Guidelines provide for refusal of classification where the film contains “child sexual abuse or any other exploitative or offensive descriptions or depictions involving” such a person.

31        The Board noted that in its submissions FAVA, citing a website the authority of which was unspecified, claimed that one of the actors was under the age of 18 at the time the film was made. This was denied by Shock Records which stated that all the actors were over 18. The Board stated that no other information on this point was available to it. It concluded however that:

the potential for community offence caused by either the description (in stories related during the film) or depiction of such a ‘person’ is mitigated by the context, purpose and the stylised, detached cinematic techniques of this modified version of the film.

32        The Board’s view of the context, purpose and techniques of the modified version of the film also led it to conclude that the film does not contain descriptions or depictions of child sexual abuse that are exploitative or offensive. The Board placed considerable emphasis on the context provided by the inclusion of the additional documentary material referred to at [3] above. It held:

[this material] facilitates wider consideration of the historical, political and cultural context of the film, and this would mitigate the level of potential community offence and the impact of the classifiable elements to the extent that the film can be accommodated within the R 18+ classification.

…

The additional material included on the DVD, especially of extensive behind-the-scenes footage revealing the director’s approach to filming and his attention to detail in his camera shot-making, supports this view. … The extensive footage also reinforces the fictional and highly stylised nature of the film.

33        In conclusion a majority of the Board held that because it was high in viewing impact and may be offensive to sections of the adult community, the modified DVD version of the film and the additional material should be classified R 18+. The Board also summarised the reasons that led a minority of the Board to conclude that Salo should be classified RC.

The present application

34        As the Board itself recognised, the decisions with which it is charged under the Act, the Code and the Guidelines involve the exercise of discretion and judgment. These are matters on which, in all good faith, informed minds may differ. The difference between the majority and minority views concerning Salo testify to this. It is, however, irrelevant whether the Court agrees with the Board’s decision or would decide the matter differently. The legislative framework entrusts the task of classifying the film to the Board not to the courts. The function of the court is more limited. In Brown v Classification Review Board (1998) 82 FCR 225 French J, as the Chief Justice then was, observed at 240:

The function of this Court upon an application for judicial review is to decide whether the Board has acted in accordance with the law. It is not to substitute its own assessment of the publication for that of the Board. Nor should it seek to judicialise the process of administrative decision making by imposing rigorous standards of detailed explanation.

35        The applicant contends that the Board erred at law by failing to comply with the Guidelines as required under the Act and the Code. The allegations of error may be grouped as follows:

(a)    the Board did not consider the cumulative effect of the individual classifiable elements identified in the Guidelines. The applicant referred to the impact of mental, physical, implied sexual violence and nudity;

(b)    the Board failed to consider whether acts of cruelty, as, distinct from acts of violence, were detailed and of high impact and whether depictions of cruelty and of violence were “excessively frequent, prolonged or detailed and gratuitous, exploitative or offensive” as required by the Guidelines;

(c)    in relation to sexual activity, the Board erred in:

(i)    finding that there were “exploitative and offensive descriptions or depictions” involving a person under 18, or who appeared to be under 18, but that this was permissible because of context. The Board should have considered whether these episodes involved violence (including sexual violence) that was excessively prolonged and detailed;

(ii)    failing to consider whether the depictions of sexual activity were of gratuitous, offensive or abhorrent activity accompanied by fetishes or practices which are offensive or abhorrent or amounted to bestiality (defined as ‘savagely cruel or depraved sex’); and

(iii)    failing to consider whether depictions of sexual violence in the film were gratuitous, exploitative or offensive.

36        In his oral and written submissions, Mr Tudehope who appeared for the applicant, compared the views of the Board’s majority with that of the minority. While the comparison might have some value in illustrating errors made by the majority it must be remembered that the Court is not concerned with which is the better view but only with whether the majority’s reasons contain errors of law.

37        The submission that the Board did not consider the cumulative effect of the individual classifiable elements cannot survive review of the Board’s analysis and reasons. The Board directed its attention to each of the classifiable elements in turn, however, only the elements of violence, sex and nudity warranted further consideration. Appropriately the Board considered each of these elements in turn. It found that the impact of the mental and physical violence, the nudity and the implied sexual violence was high. This finding brought the film into the R 18+ category; see [29] above.

38        The Board’s comments, quoted at [27] above, as to the mitigating effect of various camera techniques and lack of technological sophistication on the impact of violence in the film show that the cumulative effect was considered. It is also clear from the reasons that the context of the film in the DVD set with its explanatory material was significant in muting the effect of violence; see [32] above. It is clear that in turning its mind to this issue and in stating the reasons that led to its conclusion the Board did not find that the violence in the film was excessively prolonged and detailed.

39        The Board found that the film did not contain “exploitative and offensive descriptions or depictions” involving a person under 18 or a person who appears to be under 18. Although the Board considered the submissions of the applicant concerning the age of the actors, it did not find the claim that one of the actors was under 18 was made out. Faced with conflicting evidence on the point it made no finding. It was not obliged to do so given that there were no “exploitative and offensive descriptions or depictions” involving a person under 18 or a person who appears to be under 18. The Board was explicit on the point. In addition to the comments quoted at [31] above, the Board said:

It is the view of the Review Board that the film does not contain descriptions (in stories related during the film) or depictions of child sexual abuse which are exploitative or offensive, or any other exploitative or offensive descriptions or depictions involving such a ‘person’ given the context, purpose and cinematic techniques of this modified version of Salo in DVD format …

40        As to the claim that the actors appeared to be under 18, the Board, as required by the Code, considered the question in the context of whether the actors were depicted in a way “that is likely to cause offence to a reasonable adult”. It said:

It is the opinion of the Review Board that the inclusion of additional documentary features in this modified DVD format version of Salo facilitates wider consideration of the historical, political, and cultural context of the film, and this would mitigate the level of potential community offence and the impact of classifiable elements to the extent that the film can be accommodated within the R 18+ classification.

41        The above comments also give the lie to the claim that the Board failed to consider whether depictions of sexual violence in the film were gratuitous, exploitative or offensive. It was not necessary for the Board to address this very specific issue expressly when it has made comments that, in their generality, encompass it. In expecting it to do so the applicant makes the error against which the High Court cautioned in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, namely that of “seeking to discern whether some inadequacy may be gleaned from the way in which the reasons [of an administrative decision-maker] are expressed” and turning review for error into “a reconsideration of the merits of the decision”; at 271-2 per Brennan CJ, Toohey, McHugh and Gummow JJ.

42        The comments of the Board quoted at [31] and [40] show that the Board had addressed the issue of sexual activity in the film both in terms of the age of the actors, whether it was exploitative or offensive and also the possibility of offence to the community. They show also that the Board had considered the cumulative effect of the individual element albeit that it did not expressly state this. Inherent in the Board’s reasons on this issue is a consideration of whether the violence was excessively prolonged and detailed. The fact that the Board did not specifically mention this does not mean that the issue was ignored.

43        The applicant claimed that the Board failed to identify instances of bestiality, defined as “savagely cruel or depraved” sex. The Guidelines contain definitions of some terms. They state that undefined terms should take their usual dictionary meaning and refer to the “latest edition of the Macquarie Dictionary”. The term, “bestiality” is not defined in the Guidelines. The definition put forward by the applicant comes from the Oxford Dictionary Online. The Macquarie Dictionary Online defines it to mean:

1.    bestial character or conduct; beastliness.

2.    excessive appetites or indulgence.

3.    sexual relations of a human with an animal.

44        In my view, the reference in the Guidelines to “Depictions of practices such as bestiality” contemplates the third meaning. The meaning that the applicant attributes to the term would overlap with other aspects of the criteria for classification as RC; for example the gratuitous, exploitative or offensive depictions of cruelty. Ultimately this complaint is really a challenge to the merits of the Board’s decision. The same may be said of the applicant’s claim that the Board did not give the necessary consideration to “activity accompanied by fetishes or practices which are offensive or abhorrent”.

45        The applicant, FAVA, contends that the Board’s decision was affected by error of law. Having considered the Board’s reasons in detail I am satisfied that the Board considered the relevant issues, directed itself correctly as to the statutory criteria and applied the Act, the Code and the Guidelines without error of law. It is clear that the Board considered, not only the specific criteria but also the overall impact and context of the film and additional material. In addition to the comments quoted above the Board said:

The Review Board also considers that the impact of Salo, now 35 years old, is reduced by its age, its dated and sometimes technically unconvincing visual effects and construction of the film’s narrative through mostly obscured long or extreme long shot visuals and editing techniques. The extensive, discordant usage of classical music, ornate costumes and highly stylised mise-en-scÈne gives the film a surrealist quality. The film employs a detached style, which is totally devoid of any sense of titillation. Overall the characterisation and tone of the film encourages viewer distance rather than engagement.

46        The applicant’s objections to the Board’s decision are, in my view, objections to the merits of the decision and do not point to any error of law. For these reasons the application must be dismissed with costs.

Associate:

Dated:    31 August 2011