In December 2005, THE ABSENT OBLIGATION was passed with an Unrestricted-rating by the Classification Board. This was confirmed by the Classification review Board in July 2006.
THE ABSENT OBLIGATION was one of eight books and one videotape that were classified following a raid on the Islamic Bookstore in Lakemba.
For full details of this case, see our database entry for DEFENCE OF THE MUSLIM LANDS.
THE ABSENT OBLIGATION
Review Board Report
Classification Review Board
19, 20, 23 June and 3, 5 July 2006
23-33 MARY STREET SURRY HILLS, NSW
Ms Maureen Shelley (Convenor)
The Hon Trevor Griffin (Deputy Convenor)
Mr Rob Shilkin
Mrs Kathryn Smith
Mrs Gillian Groom
Ms Ann Stark
Mr Anthony Hetrih
Commonwealth Attorney General, the Hon Philip Ruddock MP, not represented.
NSW Council for Civil Liberties.
BUSINESS: To review the Classification Board’s decision to classify the publication The Absent Obligation: And Expel the Jews and Christians from the Arabian Peninsula ‘Unrestricted’.
DECISION AND REASONS FOR DECISION
The Classification Review Board (the Review Board) in a 5-2 majority decision classified the publication The Absent Obligation: And Expel the Jews and Christians from the Arabian Peninsula ‘Unrestricted’.
2. Legislative provisions
The Classification (Publications, Film and Computer Games) Act 1995 (the Act) governs the classification of publications and the review of classification decisions. Section 9 of the Act provides that publications are to be classified in accordance with the National Classification Code (the Code) and the classification guidelines. Section 11 of the Classification Act requires that the matters to be taken into account in making a decision on classification include:
(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 or film; and
(c) the general character of the publication or film, 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.
Three essential principles underlie the 2005 Guidelines for the Classification of Publications (the Publication Guidelines), determined under s.12 of the Act:
1. The importance of context;
2. Assessing impact; and
3. The six classifiable elements – themes, violence, sex, language, drug use and nudity.
The Review Board convened on 19 June 2006 in response an application dated 5 June 2006 from the Attorney General, the Hon Philip Ruddock MP (the Applicant). The original application for classification of the publication was lodged by the Australian Federal Police on 15 December 2005 (application reference L05/1457). The Classification Board classified the publication as ‘Unrestricted’ on 23 December 2005.
At its meeting on 19 June 2006 seven members of the Review Board received oral and written submissions from Mr Drew Kovacs representing the New South Wales Council for Civil Liberties, and then adjourned to consider the substance of the application ‘in camera’. The Review Board continued to deliberate ‘in camera’ on 20 and 23 June 2006 and on 3 July 2006. At its meeting on 3 July 2006 the Review Board determined it was not able to reach a decision without obtaining a translation of the Arabic Publishers Note on page 7 of the publication and adjourned until such a translation could be obtained.
The Review Board reconvened on 5 July 2006 for a final time and, after careful consideration of all of the relevant issues, determined in a majority decision that the publication be classified ‘Unrestricted’.
4. Evidence and other material taken into account
In reaching its decision the Review Board had regard to the following:
(i) The Attorney General’s application for review;
(ii) The NSW Council of Civil Liberties’ written and oral submissions;
(iii) The Publication The Absent Obligation: And Expel the Jews and Christians from the Arabian Peninsula (L05/1457);
(iv) The relevant provisions in the Act;
(v) The relevant provisions in the Code, as amended in accordance with s.6 of the Act;
(vi) Translation of the Arabic Publishers Note on page 7;
(vii) The Classification Board’s report; and
(viii) The 2005 Guidelines for the Classification of Publications.
The Absent Obligation: And Expel the Jews and Christians from the Arabian Peninsula is a book of 110 pages that examines the Islamic concept of Jihad and establishing the Law of Allah upon the earth - specifically the Arabian peninsula. The author is an Egyptian Islamist Muhammad Abdus Salam Faraj.
6. Findings on material questions of fact
The Review Board found that the publication contains aspects or scenes of importance, under various classifiable elements:
There are no descriptions or depictions of sex, drug use, nudity or coarse language in the publication. The descriptions of violence in the book are fleeting and mild. The underlying themes of the publication would undoubtedly be rejected by most Australians and would be considered extreme. However, their impact in the publication is not high, largely due to the turgid academic style of the publication and the lack of real detail. The treatment of themes is not offensive as that term is defined in the Guidelines, although it may be offensive to some people given the ordinary use of the word.
Promotion, incitement or instruction in matters of crime or violence
The publisher’s note states that this is a “truly revolutionary work”, that it has been published numerous times in Arabic and that this is the first time that it has been produced in English.
This edition of the book was published in 2000. It contains a prayer for “our family struggling throughout the globe and in particular those in Chechnya and Palestine.” Other than this, there are no contemporary references. The fundamental thesis of the publication is that it is obligatory upon every Muslim to fight in order to re-establish the Islamic State. The book provides various Koranic quotes and quotes of prophets and Islamic scholars that purport to support this obligation.
The book is stated to “illustrate...how the obligation of fighting in the cause of Allah is truly absent and forgotten - except by a few Lions and swords of Allah. Bring back the desire for Jihad and establishing the Law of Allah upon the earth will surely be a revolutionary step for the Muslims of today.”
The book notes that many rulers of formerly Islamic lands have "apostatised from Islam. They have been brought up over colonial tables be they Christian, Communist or Zionist". The book quotes from scholars and the Koran to support the notion that fighting such leaders is obligatory until "the religion is for Allah (alone)". The book notes that other Islamic obligations - such as obedience to Allah, pursuing education and intensive worship - are secondary to the obligation of Jihad. The publication notes that the most important task is to establish the laws of Allah "in our own land" rather than "destroying the imperialists" which is "not a useful action and is a waste of time".
The book emphasises the importance of rebellion against non-Islamic leaders in Islamic lands "it is obligatory upon the Muslims to raise their swords against the rulers who are hiding the truth and are manifesting falsehood, otherwise the truth will never reach the hearts of the people." The book notes the benefits in the afterlife that "martyrs" in the cause of Allah allegedly receive.
The book notes that "it is permissible for a Muslim to plunge himself into the thick of the disbelieving enemy if there is benefit in it for the Muslims...even if that leaves to his killing and before he sees the benefit of his plans with his own eyes". The book appears to suggest in one part that the killing of the children of the pagans is permissible, but in a subsequent paragraph suggests that women, children and prisoners should not be killed.
The book contains an Appendix entitled “Martyrdom Operations”. This states that the proper term for “suicide operations” is “martyrdom operations” and “there is a vast difference between the one who ends his life due to his inability to bear the difficulties of life...and the one who offers his life for the cause of Allah and to bring benefit and protection to the Muslims.”
Without explicitly stating that suicide/martyrdom operations are justified or permissible, the book contains a list of incidents from the Koran and the tales of various scholars in which Muslims have engaged in attacks against the enemy which have caused their own death.
The publication is hostile towards “disbelievers” and, in particular, towards the leaders of formerly Muslim countries who do not themselves observe Islam. The book states that it is incumbent on Muslims to fight such leaders. The book also implies that suicide/martyrdom operations are permissible.
7. Reasons for the decision
The Review Board considered that most Australians would find the attitudes and sentiments expressed in the publication to be contemptible and extreme. Having said that, the Review Board is required to take a conservative approach to the interpretation of the Code.
The Review Board noted that the book was written in a descriptive, matter of fact manner, rather than as an emotive or an impassioned plea, or an attempt to persuade Muslims to engage in any particular act of Jihad.
There was no detail of any particular types of violence or crime that should be committed, nor any particular reference to any modern theatres of Jihad (other than a brief reference to the Mujahideen in “Palestine” and Chechnya) but no detail about the operations engaged in there, nor any demand that Muslims should assist in those particular theatres.
The majority of the Review Board concluded that the publication did not contain any tangible instruction, in the sense required, in matters of crime or violence. In relation to “promotion” or “incitement”, the Review Board noted that it is obliged to consider “the objective purpose of the publication”, and that the publication must have the intention of “encouraging a disposition” towards crime in someone who otherwise does not have one or “magnify a pre-existing disposition” (Chief Executive Officer of Customs v Carman  QDC 433).
The majority of the Review Board found that the publication’s objective purpose was to provide broad support for the broad notion of fighting against “disbelievers” but, in the absence of anything specific, there were no “matters of crime or violence” that were being incited or promoted.
In the majority view the book stopped short of advocating any particular crime or violence. The majority of the Review Board formed the view that such a generalised call to fight in the name of Allah, without details of where, by what means and at what time could not comprise the promotion or incitement in matters of crime or violence as that term has been interpreted by the Courts (see Carman and Brown v Classification Review Board).
The guidelines for the classification of publications (2005) provide:
1. That publications will be refused classification (RC) if they contain “detailed instruction in:
(i) matters of crime or violence”
2. That one of the criteria for classifying a publication RC is that it: “promote, incite or instruct in matters of crime or violence.”
3. That in both Category 1- Restricted and Category 2- Restricted: Publications which promote, incite or instruct in violence are not permitted. “Promote” means “to further the growth, development, progress etc, of; encourage” according to the Macquarie Dictionary (on-line edition). “Incite” is described as: “to urge on; stimulate or prompt to action” “Violence” means: “any unjust or unwarranted exertion of force or power, as against rights, laws, etc; injury; wrong; outrage.”
The Publisher’s Note states that the “work was originally published in Arabic and has been subsequently re-published on a number of occasions”. The 2000 edition is the first English-language version. The note states
“when a book such as this is made available to readers in the English language, neglecting it becomes a great disservice to the Islamic obligation”. Further it states
“It also causes great injury to oneself, in the form of humiliation in this in (sic) life, by not practicing what has been clarified and confirmed from the texts, thus being subjugated by the enemies of Allaah”.
At page 7 the note describes the book as “this truly revolutionary work”. It states that it “is revolutionary not just because of the topic at hand but also by the nature of the title which illustrates so clearly how the obligation of fighting in the cause of Allaah is truly absent and forgotten – except by a few Lions and Swords of Allaah, Bringing back the desire for Jihaad and establishing the Law of Allaah upon the earth will surely be a revolutionary step for the Muslims of today.
” It states further “It is therefore imperative, and ordained for us to follow all of those duties and obligations of Islaam and not to pick and choose those parts of the religion, which happen to be in accordance with our weak desires.” In the same ‘Publishers Note’ (page 10) it says: “And at what time on earth was Jihaad more needed that it is now, when the enemies of Islaam have surrounded our lands like wolves, taking from there what they wish.”
On page 12 the publishers add a note about the author, stating that he was executed by hanging in central Cairo and that he was a “household name” in the Islamic movement along with Umar Abdur Rahman who is “serving a life term prison sentence in the USA as a result of a conspiracy between the United States and Egyptian governments.”
Throughout the book, references lead to the conclusion that, while there is no detailed instruction in violence or crime, there is promotion of violence and crime and incitement to violence and crime. The language used in describing the obligation of Muslims to fight is frequently inflammatory. There are several passages, when taken in context, which urge fighting for Islam. These passages, some of which are listed below, reflect the tenor of the publication.
The underlying obligation on Muslims is claimed to be “establishing the Islamic State” “…If the state can only be established by fighting, then it is compulsory on us to fight” (page 20).
On page 23 it states “It is the obligation of Muslims to oppose such a ruler [one who rules by law taking precedence over the book of Allah and the Sunnah] by all necessary means until he returns to the rule of Allaah and His Messenger, So that no other than Him should rule, neither in a minor or major way.’’
The publication argues that: “The present rulers have apostatized from Islaam. They have been brought up over colonial tables be they Christian, Communist or Zionist, What they carry of Islaam is nothing but names, even if they pray, fast and claim to be Muslims” (page 24)
Then the conclusion is: “if part of the religion is for Allaah and another is for other than Him, fighting is obligatory until the religion is for Allaah (alone)” (page 25). Further references to this obligation also appear at pages 32, 33 and 44.
On page 38 it states: “Whoever really desires to be engrossed in the highest degree of obedience and be on the peak of worship, then let him make Jihaad in the cause of Allaah.”
In a section headed “Reply to those who say that Jihaad in Islaam is for defence only” the following appears:
“Concerning this, it is worth giving a reply to the one who has said that Jihaad in Islaam is for defence and the sword did not spread Islaam. This is a false saying that has been repeatedly uttered by a lot of those who are known in the Islamic da’wah [preaching, inviting, propagating, calling (to Islam, Jihad etc)]. But the truth is in the answer given by the Messenger [the Prophet Mohammad] when he was asked:
‘Which Jihaad is in the cause of Allaah?’ He said: ‘He who has fought to raise the word of Allaah supreme is in the cause of Allaah.’ So fighting in Islaam is to raise Allaah’s word highest either offensively or defensively. Also Islaam was spread by the sword, but only against the leaders of kufr (sic) [disbeliever, infidel, non-Muslim, anyone who does not believe in the creed of Islam], who veiled it from reaching the people, and after that no one was forced to embrace it. It is obligatory upon the Muslims to raise their swords against the rulers who are hiding the truth and manifesting falsehood, otherwise the truth will never reach the hearts of the people” (page 49). At page 58, reference is made (as it is in other parts of the publication) that “it is clear; by the Quraanic text that fighting means (physical) opposition and killing”. See also page 65: “It is obligatory upon the Muslim to prepare himself for Jihaad in the cause of Allaah”.
Further on page 59 it states “As for the Muslim lands, the enemy resides in their countries, In fact the enemy is controlling every thing, The enemies are these rulers who have snatched the leadership of the Muslims, Thence Jihaad against them is fardh ‘ayn. Besides the Islamic Jihaad is now in need of the effort of every Muslim. And it should be borne in mind that when Jihaad is fardh ‘ayn (an individual obligation), it is not required to seek permission from one’s parents for the to (sic) march forth as scholars said: ‘it becomes like praying and fasting.’ ” The book also outlines the punishments for those abandoning Jihaad including humiliation, division amongst the Muslims, “painful torment” and being replaced by Allaah by “another people”.
On page 69 it details that human shields, whether they be Muslim or not, is no excuse for not taking up Jihad: “if the kuffaar (sic) army take Muslims prisoners as human shields, and it is feared that harm will afflict the Muslims if they do not fight, then they must fight even if it results in the killing of the Muslims (sic) prisoners”. Further, the book states: “Such Muslims, if they are killed, will be martyrs but obligatory Jihaad must not to be abandoned because of the one who will be killed as a shaheed (martyr)”.
It is the view of the minority that by giving religious justification of martyrdom for killing Muslims in the cause of Jihad, the publication glorifies Jihad and incites those who may not otherwise take up “the fight” to do so. One of the Arts of fighting in Islam” at page 73 refers to the words of the Prophet that “war is deceit”. That is referred to in the context of fighting the present rulers of the Muslims and also in dealing with the “kufaar” in war. Appendix 1 (p 95) deals with “Martyrdom Operations”: “
This issue is of paramount importance in our times as we hear the term “suicide operations” in occupied Palestine and Chechnya, carried out by the Mujahadeen, In fact the correct term is martyrdom operation and the people of knowledge both past and present have discussed the issue. Indeed there is a vast difference between the one who ends his life due to his inability to bear the difficulties of life and its various tribulations, and the one who offers his life for the cause of Allaah and to bring benefit and protection to the Muslims.
” The cumulative impact of these passages, taken with the tenor of the remainder of the publication, lead the minority to conclude that the publication promotes and incites violence and/or crime. There is no specific exhortation in the publication to undertake a specific martyrdom operation or to undertake such an operation in a specific area. However, the general tenor of the publication is to encourage and incite Muslims “everywhere” to undertake Jihad, that is to fight for Islam, including physical fighting, the over throwing of leaders of countries – particularly in the Arabian peninsula – that are not committed to Shariah law and to undertake martyrdom operations, even where such operations result in the deaths of Muslims. Given that the publication was published for the first time in English in 2000, it appears that the objective purpose of its publication and its sale in Australia is to encourage and incite Muslims – who may not otherwise be so encouraged – to undertake Jihad. Therefore, it is the minority view that the publication must be refused classification.
In light of the impact of the classifiable elements and the way in which the Courts have interpreted the term “promote, incite or instruct in matters of crime or violence”, the Review Board decided in the majority that the publication should be classified “Unrestricted”. The decision of the Review Board was reached by majority of 5 to 2.
It was the view of the minority that the publication should be refused classification
This controversial title was first published in 1971; however it was not until 1985 that a copy was refused by the Classification Board. Since then, the ban has been confirmed several times.
Date: May 1985
Title: THE ANARCHIST COOKBOOK (C) 1971 (Paperback)
Submitted by: NSW
Date: July 1990
Title: THE ANARCHIST COOKBOOK + (C) 1989 (Paperback)
Submitted by: NSW
Date: August 2000
Title: ANARCHIST COOKBOOK (3.5" Diskette)
Submitted by: WA Police - Organsied Crime/Vice Investigation
Date: October 2016
Title THE ANARCHIST COOKBOOK (152 A4 pages)
Submitted by: NSW Police
Reason: Pubs 1(c) The publication is classified RC in accordance with the National Classification Code, Publications Table, 1. (c) as publications that "promote, incite or instruct in matters of crime or violence".
Date: October 2016
THE ANARCHIST COOKBOOK (160 A4 pages)
Submitted by: NSW Police
Reason: Pubs 1(c) The publication is classified RC in accordance with the National Classification Code, Publications Table, 1. (c) as publications that "promote, incite or instruct in matters of crime or violence".
In June 2016, ARTILLERY MAGAZINE: CHAPTER 6 (2013) (116-pages) was banned by the Classification Board.
The reason given for the Refused Classification ratings was:
Pubs 1(c) The publication is classified RC in accordance with the National Classification Code, Publications Table, 1. (c) as publications that "promote, incite or instruct in matters of crime or violence".
At the same time, ARTILLERY MAGAZINE: CHAPTER 5 (2011) (132-pages) was passed with an Unrestricted (M - Not recommended for readers under 15 years) rating.
In both cases, the applicant was the Queensland Police Service Graffiti Task Force.
Artillery is an independent publication dedicated to the creative struggle, determination and rawness of the world's best graffiti artists. In addition to its predominant graffiti focus, Artillery mixes in a healthy dose of art, design and photography; presenting all of it in a well thought out, beautifully designed and printed package.
Artillery Magazine is pleased to announce the sixth chapter in its endeavour to roll the world’s best graffiti, visual art and imagery into a high quality, section sewn publication.
The content is flawlessly put together in a well curated outfit, designed to be visually pleasing whilst maintaining a hard edge for the info heads. Coming together at 116 pages, Chapter Six boasts in-depth feature interviews with Australian and international graffiti artists; Caib KOC (Sydney), KGB Crew (Sydney), Roger (Adelaide) and Zoer CSX (France).
The magazine also features site-specific illustrations in the Art Department by Seb Gorey (France/NYC), KC Ortiz (Chicago), Gimiks Born (Brisbane), Remio VTS (USA) and this chapter’s spotlights focus on street artist turned gallery superstar Anthony Lister (Brisbane), eclectic street photographer Jacob Doubleyou (Perth) and American all-rounder Jurne.
Artillery Magazine – Chapter Five weighs in at 132 pages of well curated content in a beautifully designed and printed package.
AUGOR MSK (Los Angeles) features on the cover, photographed by Keegan Gibbs. Inside is an extensive interview with the man himself.
The mag also features interviews with TMD Crew (New Zealand) and YANOE (USA). You’ll also find features on; Chems (QLD), Skull (Melb/Europe), Skary (AUS) goes to the USA, Kings Way book (Melb) and Alex Fakso (Italy) along with the usual dose of photography and graffiti on walls, trains and more.
In May 2008, the NSW Police raided the Roslyn Oxley9 Gallery in Paddington and seized photography by Bill Henson.
Police seize numerous art works – Paddington
Friday, 23 May 2008
Police have seized numerous items as part of an investigation launched into art works displayed at an exhibition in Paddington.
About 2pm yesterday, police received a report from a concerned member of the public about the nature of the work displayed at the gallery on Hampden Street. Several other complaints have since been reported.
Officers from Rose Bay Local Area Command have conducted extensive investigations into the complaints, with assistance from detectives with the State Crime Command’s Child Protection and Sex Crimes Squad.
Officers executed a search warrant at the premises this morning, and have since seized more than 20 works from the 41 piece series.
The images are believed to depict a child under the age of 16. Police are currently investigating the possible prosecution of offences regarding the act of publish indecent article under the Crimes Act.
Police are yet to speak with all parties involved with the exhibition, and are unable to speculate on an outcome at this early stage of the investigation.
Inquiries are continuing.
The controversial pictures of a naked girl were sent to the Classification Board, who awarded them PG-ratings.
Henson photo not porn says censor
smh.com.au, June 6, 2008
IT'S official. The picture of the naked girl that sparked the Bill Henson fuss is not pornography.
The sight of her on an invitation to the photographer's Sydney exhibition two weeks ago provoked shock and outrage, but the Classifications Board has now declared the picture "mild" and safe for many children.
Yesterday the Herald also learned that the Director of Public Prosecutions was on the verge of advising NSW police that any prosecution of Henson was unlikely to succeed. In Canberra, Federal Police also announced that no charges would be laid over photographs in the Australian National Gallery.
The Henson affair appears close to collapse.
Since then, Henson photographs have been removed from the walls of two regional NSW galleries and impounded at the National Gallery. Stacks of the invitation, along with copies of Art World, a new magazine containing Henson images, have also been seized by NSW police.
But the Classification Board, under its new chief, former ABC head Donald McDonald, is far less troubled by Henson's work. Earlier this week it cleared five images - four of them had been partly censored - and it has now given the young girl on the invitation a rating of PG.
The picture came to the board for classification when it was found in a blog discussing pornography and the sexualisation of children. The classifiers found the "image of breast nudity … creates a viewing impact that is mild and justified by context … and is not sexualised to any degree".
While a minority of the board thought the impact of the picture was "moderate", none of the classifiers called for any restriction on its display.
Just as the moral panic about Bill Henson's pictures was dying down, the July 2008 issue of ART MONTHLY magazine appeared featuring nude pictures of Olympia Nelson. The cover-image of a six-year-old girl was done to protest against the recent controversy.
Art Monthly Australia Issue 211
Editorial - compiled by Maurice O'Riordan
To dream a child
Melbourne artist Polixeni Papapetrou, the artist of this month’s cover image, has also borne her share of censorship and moral outrage, particularly with the nude photographs of her daughter Olympia. ‘My criminality appears to rest on the notion that art has somehow supplanted my maternal duty’, she said earlier this year in an interview with Australian Centre of Photography Director Alasdair Foster. The transgression of the artist-mother – especially one who dares to ‘implicate’ her own child in the process – can cut deeper than any questions surrounding the male gaze as a domain for art and exploitation.
The choice of Papapetrou’s Olympia as Lewis Carroll’s Beatrice Hatch before White Cliffs (2003) for our cover may be seen as controversial but is made in the hope of restoring some dignity to the debate; to validate nudity and childhood as subjects for art; to surrender to the power of the imagination (in children and adults) and dialogue without crippling them through fear-mongering and repression.
There is, admittedly, a fair amount concerning sex and sexuality in this issue, apart from discussions of Henson’s work (and at the risk, perhaps, of distorting the nudity in Papapetrou’s image): from the celebrations of women in the work of Japanese photographer Nobuyoshi Araki and Australian painter David Laity (who have both sparked controversy and divided their audiences) to the subject of Queer perspectives in the Sydney Gay and Lesbian Mardi Gras 30th anniversary exhibition Bent Western, and the critical ‘excavation’ of one of its artists, the late Arthur McIntyre. As Donald Brook argues, it should never be a question of art or pornography, but rather: ‘Should works of art enjoy a general indulgence, recognised in law, so that even culpably pornographic works of art like those on the walls of brothels in Pompeii may sometimes be tolerated?’ The past few weeks in Australia have certainly exposed just how timid and intolerant our society seems to have become, even while Henson is now free to show his work. The obvious parallels, in the extreme, are suggested by this issue’s inclusion of German painter Otto Dix, one of the Nazi’s ‘Degenerate’ artists, alongside Melbourne artist Sam Leach’s ‘self-portrait as a Nazi’, Self in Uniform (2007).
Yours (perchance to sleep) Maurice
The NSW Government noticed the controversy, and submitted ART MONTHLY to the Classification Board.
Magazine sent to classification board
smh.com.au, July 6, 2008
NSW community services minister Kevin Greene said the images had been inappropriately hijacked for political mileage.
"I will refer this to the ACB tomorrow, and the community also should let (the Board) know what they think," Mr Greene told reporters in Sydney.
Opposition Leader Barry O'Farrell labelled the publication a "provocative publicity stunt" and called for a review of Arts Council's funding for the magazine.
He said the average parent faced strict regulation of photographing their children at school events, and would be frustrated by the actions of the magazine.
"I understand they are in receipt of funding from the Arts Council and I assume there are procedures where that can be reviewed by Mr Rudd and his ministers," Mr O'Farrell said.
"I notice (Premier) Morris Iemma hasn't ruled them out receiving state government funds in the future.
"The public are furious about the double standards, I think taxpayers are angry when they see funds used in this way and to review it, I think, would be sensible."
Transcript of Interview With Barrie Cassidy
ABC Insiders, ABC TV, Canberra
06 July 2008
CASSIDY: Just finally on top of the Bill Henson controversy, a taxpayer supported magazine has put a naked 6 year old girl this time on its cover, Art Monthly Australia. The editor said that he did it to restore some dignity to the debate, is that what it does?
PM: If you asking my personal view Barrie, no it doesn't and it does the reverse. My view hasn't changed on this. We are talking about the innocence of little children here. A little child cannot answer for themselves about whether they wish to be depicted in this way. I have very deep, strong personal views on this which is that we should be on about maximising the protection of children. I don't think this is a step in the right direction at all.
CASSIDY: And it does seem to be a deliberately provocative act aimed directly at you?
PM: Who knows what the motivation is, but I’ve got to say my interest and the interest of many Australians. I think most Australians, is to protect little children and restore innocence to kids childhood. But I go back to the fundamental question: how can anyone assume that a little child of 6 years old, 8, 10, 12, somehow is able to make that decision for themselves? I mean, I don't think they can. That's just my view, and that's why frankly, I can't stand this stuff.
Nelson to go to police over nude photo
heraldsun.com.au, July 7, 2008
FEDERAL Opposition Leader Brendan Nelson says he will ask police to investigate whether an art magazine broke the law when it used a photograph of a naked six-year-old girl on its cover.
Using the photograph sent a "two-fingered salute" to the rest of Australia, Dr Nelson said today.
But Dr Nelson said the editors did not understand the way the images could be used by pedophiles.
"The use and sexualisation of children in this way is indefensible, whether in the name of art, parental consent or political protest," he said.
"It is absolutely essential that we stand up to this. What these people have done in this publication and using the photographs of this child in this way is send a two-fingered salute to the rest of society.
"I will be asking the police authorities to investigate whether there is any breach of the law as it stands by publication of these photographs.
"It's also obvious that there needs to be a review of the national classifications systems."
Dr Nelson said there had been many ways in which children had been used by earlier generations that would not be defended today.
Dr Nelson said the use of naked children in art could not continue.
"And whilst it is very hard to define explicitly where it is appropriate or not appropriate to use children in this way, I think most Australians would accept this is not appropriate," he said.
"And that the child concerned defends the photographs in my view merely compounds what has happened."
Kevin Rudd Interview
Transcript of Doorstop, Fairbairn RAAF Base, Canberra
08 July 2008
JOURNALIST: (inaudible) Art Monthly, says she is offended by your comments. Is she too young to know the real issues here?
PM: As I said the other day. My attitude to this has not changed one bit. And that is, the protection of children and the innocence of children is of fundamental importance. Secondly, if people want to make a political point in opposition to me, I don’t think it is right they use under age children to make that point.
They can engage the political debate as much as they want, it is a free country. But when it comes to the protection of children, I say that should be a foremost responsibility for each of us and I add this: How can you credibly expect a six year old girl to have made their own independent decision about this matter in the beginning.
I go back to my point, we have a view about what constitutes, you know, a responsible time for people to take decisions for themselves. Children, I don’t think fit within that category.
Classification board wants magazine
heraldsun.com.au, July 10, 2008
THE Classification Board has asked the art magazine which published a photo of a naked girl on its front cover to submit its publication for review.
The Attorney-General's Department confirmed that the board's director Donald McDonald had made the request.
Under the Classification Act, Mr McDonald can use special powers to "call in a publication for classification under certain circumstances ... if the director has reasonable grounds to believe it is a submittable publication," a department spokeswoman said.
"The director has formed the view that there are reasonable grounds to believe that the June edition of Art Monthly Australia is a submittable publication."
Under the Act a submittable publication is one that is likely to be refused classification, could "cause offence to a reasonable adult to the extent that the publication should not be sold or displayed as an unrestricted publication", or is unsuitable for a minor to see or read.
If the magazine is ultimately deemed unsuitable, it could be banned under the classification process.
On July 16 2008, the Classification Board awarded issue 211 of ART MONTHLY AUSTRALIA an M (Not recommended for readers under 15 years) rating.
Nude art mag gets over-15s rating
heraldsun.com.au, July 17, 2008
The board reviewed the entire July edition of the magazine and yesterday, in a split decision, gave it an M rating. It means the magazine is not recommended for readers under 15.
"The board notes that the images in this publication have been classified unrestricted within the specific context of the publication as a bona fide and serious vehicle for the discussion of the arts," a spokeswoman said.
"The overall tone of the publication and the debate contained therein is considered to be serious and have genuine artistic and educational merit.
"The board notes that the images and text within the publication that relate to the ongoing debate about the difference between art and pornography and the sexualisation of children require a mature perspective."
A minority on the board wanted to give the magazine a refused classification, meaning it would not be able to be sold, the spokeswoman said.
But that minority were split over what images, both on the cover, and inside, deserved the rating.
There were other graphic images within the magazine.
Art Monthly's Nude girl cover leads to tougher laws move
dailytelegraph.com.au, July 23, 2008
THE nation's classification laws are set to toughen following the furore over photographs of naked children depicted as art.
"Recent events have highlighted how concerned the community is about how children are represented in artworks and publications," Minister for Community Services Kevin Greene said.
"Where there is a concern that an image of a child has been obtained inappropriately, or is displayed or publicised inappropriately, then some parts of the community want to see measures put in place that protect children."
Mr Greene would bring the subject up today at a meeting of state and federal community services ministers.
And The Daily Telegraph understands Attorney-General John Hatzistergos had written to ministers responsible for censorship urging them to take action.
"I agree with the Attorney-General that the community would benefit from greater clarity and consistency in the rating of the display and publication of artworks," Mr Greene said yesterday.
"I am not an art expert, but I am a father, and I am a member of a community that wants to see protection given not just to children, but to the notion of what childhood is."
He said the public outrage following exposure of the Henson photos and the ensuing Art Monthly revealed the depth of concern.
In August, the Department of Foreign Affairs and Trade decided not to renew their subscription to ART MONTHLY magazine. They denied the move had anything to do with the recent controversy.
Provocative art magazine gets chop from DFAT's razor gang
theaustralian.com.au, August 8, 2008
In a move that will cost Art Monthly Australia about 200 copies a month and about $8000 in revenue a year, a DFAT official told editor Maurice O'Riordan the department was unlikely to ever renew its subscription.
While the department said the decision was the result of a general review of funding, O'Riordan yesterday said the timing was suspicious. The 200 copies represent almost 5 per cent of the magazine's monthly sales of 4500.
"It's a sizeable cut, in terms of the prestige of having the magazine going to embassies," O'Riordan said.
Anthony Taylor, the director of DFAT's Cultural Diplomacy Section, wrote to O'Riordan last month saying the department would "not be renewing our subscriptions to a number of magazines, including Art Monthly Australia".
He said the department had already received and would pay for the magazine's July issue that featured the Henson debate.
"However, we do not wish to receive any more magazines for the rest of this financial year," Mr Taylor wrote. "Nor do we foresee, at this stage, that we will be renewing our subscription at a later date."
Mr Taylor offered to put details of the magazine on the DFAT website in case any overseas missions wanted to subscribe "using their own funding allocations".
The move is a blow to O'Riordan, who saw a small spike in circulation following last month's issue.
But he said there had been no significant change in advertising volumes. "We lost some big full-page ads, mostly federal government bodies, but we picked up a lot of smaller ads as a show of support. so it balanced out," the editor said.
In the latest edition of the magazine, O'Riordan defends the earlier cover as an "informed and rational response" to issues of censorship, nudity and consent".
"A cheap stunt might have been to secure a provocative image by Henson for the cover, given that his offending works were all cleared by the Classification Board before we went to print," he wrote in the editorial.
"But the issue is much bigger than Henson, as nuanced by our cover image and related articles. If anything, July's cover image showed the potency of art in eliciting a diverse range of opinions on a subject of deep and far-reaching concern."
In October 2008, Guy Barnett, the Tasmanian Liberal Senator, questioned Olya Booyar, the Acting Director Classification Board, during Senate Estimates.
SENATE STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
ESTIMATES (Supplementary Budget Estimates)
MONDAY, 20 OCTOBER 2008
Proceedings suspended from 3.28 pm to 3.46 pm
Senator BARNETT —Mr Wilkins, I hope you are getting the sense that there is extreme concern shared by a number of senators on this side of the desk, on behalf of our constituents, in regard to how these matters are operating, and how they are being managed currently. It is not personal. Please do not take any of this personally. What we are doing is reflecting the concerns of our constituents.
Senator Wong—I am not sure that Senator McGauran’s saying, ‘You are up to something’ can be taken in any way other than personally, if you don’t mind me saying. I am not quite sure how one would not take that personally.
—He has expressed a whole range of views and concerns, and many of them are very strongly held. I know Senator McGauran is bona fide in his views and beliefs and that he holds them very firmly. I want to move to a specific example: Art Monthly. It was in the news, it is in the public arena, it has been drawn to your attention and it has been classified. Can you advise the committee, firstly, of the date when you were alerted to that document and, secondly, when you started the process to classify that magazine?
Ms Booyar —The director of the board wrote to the publisher on 8 July requiring the publisher to submit the July edition of Art Monthly for classification.
Senator BARNETT —When did you first become aware of the concerns regarding Art Monthly?
Ms Booyar —There were a number of media reports immediately prior to that, so it would have been in the days prior to that. It would have been around 6 or 7 July.
Senator BARNETT—So on the 6th or 7th of July you became aware of it and, as a result of that, you are advising the committee that the director of your board wrote to the publisher.
Ms Booyar —Yes, calling in the publication. Art Monthly usually would not be considered a submittable publication. But because the director had formed a reasonable view that it could be a submittable publication he is required to call it in for classification.
Senator BARNETT—Indeed. I think this is exactly one of the concerns that many senators and many constituents have: these publications are out there and they are unclassified until views are expressed of concern in the community, they come to the attention of your director and yourselves, and then you have called them in or you have written to them and said, ‘Please forward the publication.’
Ms Booyar —They are required to at that point. They cannot not submit them.
Senator McGAURAN —Senator Barnett, that is on one occasion. They are not as rigorous as they are making it sound to you.
Senator BARNETT—My point is that it is based on public concern. A lot of these publications are just out there, and perhaps the public’s concerns have not been made available to you or known to you, and yet these publications are out there which are indeed offensive or should be restricted or classified in some way. Does that make sense, and would that be correct?
Ms Booyar —I am not sure what your question is.
Senator BARNETT—Let me rephrase it. Are there publications that are distributed in the community that are unclassified that should be classified?
Ms Booyar—I do not know the answer to that. Under our scheme, there are specific examples and definitions of what a submittable publication is. There are myriad publications outside that which are not submittable publications. Unless the board and the director have a reason to believe that a publication may be submittable, it does not have to be submitted for classification. That is within the law and our codes.
Senator BARNETT —But the very reason that the director wrote to the publisher of Art Monthly is because concerns were raised by members of the public. My point is that there are other publications out there that you are not being made aware of that should be classified. Do you agree?
Ms Booyar —If we are made aware of them we will look at them.
Senator BARNETT —But there are no doubt publications in the community that you are not aware of that should be classified. Can you confirm that?
Ms Booyar —I am not aware of that, so—
CHAIR —Senator Barnett, do you have some examples of those publications to assist Ms Booyar?
Senator BARNETT —Art Monthly is an excellent example.
CHAIR —But are there others that you—
Ms Booyar —The Art Monthly magazine has been published for some time and the issue in question was that one particular issue, not every issue.
Senator BARNETT —I was interrupted and I would like to finish my questions regarding Art Monthly if I could.
CHAIR —You can do that.
Senator BARNETT—I hope you sense, Ms Booyar, and the department, that the motive behind the questions from this side is to protect the best interests of the child. So let us pursue Art Monthly for the moment. You wrote to the publisher on 8 July. When did you receive the document?
Ms Booyar —We received it on 11 July.
Senator BARNETT —On 11 July—and when was the assessment made and exactly what was the assessment?
Ms Booyar —On 16 July the Classification Board classified the July edition of Art Monthly Australia as unrestricted with the consumer advice ‘M—not recommended for readers under 15 years’.
Senator BARNETT —So it is not recommended for readers under 15.
Ms Booyar —Yes.
Senator BARNETT —If I am a newsagency what does that mean in terms of display, promotion and advertising of that publication?
Ms Booyar —As I understand, it can be displayed in the newsagency. It does not require a sealed wrapper.
Senator BARNETT —So that is still available, then, to any person under the age or over the age who wants to come in and peruse that document.
Ms Booyar —Yes. Unrestricted magazines are like that, yes.
Senator BARNETT —Can you understand how a lot of people feel very upset by that, knowing that there are what I would consider offensive, revolting photographs of underage children in the Art Monthly publication? One newsagency that I visited in Launceston, for example, refused to even display it because it was, in their view, restricted. Yet you as a «classification» «board» did not see fit to restrict it.
Ms Booyar —We used the guidelines and applied them. As per the guidelines, it was an unrestricted publication.
Senator BARNETT —This is a concern that I know Senator McGauran and others have. You are interpreting the guidelines in such a way as to perhaps be more liberal than others might be in their interpretation of them.
Ms Booyar—I am happy to hand up a set of the guidelines, but under the unrestricted section it does say that classification encompasses a wide range of material—and some material that may be offensive to some people.
Senator BARNETT—I am going to move on, but let me just say that I commend that newsagency in Launceston for what they did to protect the best interests of children. I think they did the right thing and I commend them on it. It was perhaps to the financial disadvantage of that small business.
Annual Report 2008-2009
Four complaints were received about the Classification Board's decision to classify the July 2008 edition of Art Monthly Unrestricted with the consumer advice 'M-not recommended for readers under 15 years'. Complainants were concerned about a photograph depicting a naked child on the front cover
The Australian Classification Board: History, Current
Policies and Future Challenges
Speech by Donald McDonald
Director of the Classification Board (2007-current)
Opening speech of the BSANZ Conference
To Deprave and Corrupt: Forbidden, Hidden and Censored Books
14 July 2010
Another publication which attracted significant attention in recent years was the infamous July 2008 issue of Art Monthly, with a cover photograph by Australian photographer Polixeni Papapetrou of her daughter, entitled ‘Olympia as Lewis Carroll’s Beatrice Hatch before White Cliffs’. The photograph depicted the child sitting nude, in three quarter view, in a painted landscape.
This issue of Art Monthly was published very soon after the Bill Henson exhibition at a Sydney Gallery attracted media and community attention.
I used my powers to call in the publication for classification.
The Board subsequently classified the publication Unrestricted with the consumer advice ‘M - Not recommended for readers under 15 years’. The Board was of the view that the publication was a bona fide arts publication addressing serious issues of interest to the arts community.
A minority of the Board was of the view that the images in the publication depicted a child under 18 in such a manner that it was likely to cause offence to a reasonable adult and should therefore be Refused Classification.
As a result of community pressure and political decisions in the wake of the Bill Henson and Art Monthly matters, the Australia Council for the Arts’ developed protocols for working with children in art, that came into effect on 1 January 2009. The protocols require Australia Council funded artists and organisations to apply, in certain circumstances, for classification of images of naked real children. The Board has only received one application submitted in accordance with these protocols - the images were classified Unrestricted.
In this particular instance, there were two equally interesting and important debates: - whether the images constituted art or (in the extreme view) inappropriate sexualised images of children; and - whether, as art, it should even be subject to classification.
Art may fall within the definition of a publication and the Board must classify images if an application for classification is submitted. However the Classification Guidelines allow for bona fide artworks to be classified Unrestricted if they are set in a historical or cultural context, even though the work may offend some sections of the adult community.
In the past decade concerns related to the sexualisation of children in the media and protecting children from sexual predators have risen. A change in community standards is evident in the profile and number of interest lobby groups and their success in focussing attention on the issues and for instigating legislative changes.
That the Bill Henson images, which have been exhibited in the past, caused such a furore resulting in several applications for classification in the ensuing period, is another example of the shift in community standards in response to technological and social changes that have increased concerns about children’s safety.
Another element of the classification scheme is to protect children (including child actors/models) by ensuring that offensive material that contains descriptions and depictions of persons who are, or look like they are under 18, is refused classification.
The Classification Code was amended several years ago to bring the age definition of a minor into line with ILO 182 - the international treaty aimed at the prohibition and elimination of the worst forms of child labour including child pornography. Under this treaty a “child” is defined as a person under the age of 18 years compared with the age of consent which is 16 years old.
The Board has an important role – that it treats very seriously – in relation to classifying material submitted by law enforcement authorities, including items used in prosecutions for child pornography offences.
The Board’s experience in dealing with genuine examples of child pornography gives them a very useful perspective that can be applied to the classification of other material. Board members are able to apply their knowledge of child pornography to distinguish between it and, for example, high impact material in dramatic films or artistic representations in publications such as Art Monthly.
In January 2013, the February issue of AUSTRALIAN PENTHOUSE was passed with an Unrestricted (M – not recommended for readers under 15 years) rating. This became the serial classification, which allowed the magazine to hold this rating for twelve months.
However, the Classification Board found the May 2013 issue to be higher than Unrestricted, and revoked the serial classification.
In October 2013, an appeal was made against the decision. During this time, the November and December issues were both classified Unrestricted (M – not recommended for readers under 15 years).
Classification review announced for the revocation of the
serial classification of the publication, Australian Penthouse
8 October 2013
Classification Review Board
The Classification Review Board has received an application to review the revocation of the serial classification of the publication, Australian Penthouse – declaration 256420.
Australian Penthouse was classified ‘Unrestricted’ with consumer advice 'M – not recommended for readers under 15 years' on 9 January 2013 for a period of 12 months.
On 21 August 2013, the Classification Board revoked the serial classification for Australian Penthouse as the May 2013 issue of the publication contained content that was considered higher than ‘Unrestricted’.
The Classification Review Board will meet on Wednesday 23 October 2013 to consider the application.
Serial classification of Australian Penthouse Not Revoked by
Classification Review Board
5 November 2013
Classification Review Board
A three-member panel of the Classification Review Board has unanimously decided to not revoke the serial classification of the publication, Australian Penthouse (declaration number 25640).
The Review Board decided that the May 2013 issue of Australian Penthouse (which is an issue within the serial declaration period) would, if classified, be classified as Unrestricted.
Classification Review Board
Melissa de Zwart
To review the Classification Board’s decision to revoke the serial classification of the publication, Australian Penthouse – Serial Declaration Number 256240.
DECISION AND REASONS FOR DECISION
The Classification Review Board (the Review Board) unanimously has decided to not revoke the serial classification (Declaration Number 25640) of the publication, Australian Penthouse.
2. Legislative provisions
Section 13(3) of the Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act) states that the Classification Board may declare that the classification granted for an issue of a publication (the original issue) applies to all future issues, a specified number of future issues, or all future issues published within a specified period. This declaration provides for the ‘serial classification’ of a publication. Section 13(5) of the Classification Act obliges the Classification Board to revoke a serial classification if the Classification Board is of the opinion that an issue of the publication covered by the serial classification: contains material that, if the issue were being classified separately, would cause it to be classified with a higher classification than the original issue; or contains an advertisement that has been refused approval.
Section 42(1) of the Classification Act provides that certain persons (including ‘the publisher of the publication concerned’) may apply to the Review Board for the ‘review of a decision’. According to section 5 of the Classification Act, the revocation of a serial classification is a ‘decision’ of the Classification Board.
The Review Board met on Tuesday 5 November 2013 in response to the receipt of an application from Horwitz Publications on 20 September 2013 to conduct the review. Three members of the Review Board viewed the relevant publication on 5 November 2013.
The Review Board heard oral submissions from a representative of the applicant, Mr Cameron Murray, and Mr Tony O’Reilly, Kennedy’s. This was provided in addition to a written submission. The Review Board then considered the matter.
4. Evidence and other background material taken into account
In reaching its decision the Review Board had regard to the following:
(i) The relevant provisions in the Classification Act, the National Classification Code (the Code) and the Guidelines for the Classification of Publications (the Publications Guidelines).
(ii) Horwitz Publications application for review
(iii) Kennedy’s (applicant’s representative) written and oral submissions
(iv) the February 2013 issue of Australian Penthouse (the original issue)
(v) the Serial Classification Declaration for a Publication Section 13(3) notice
(vi) the May 2013 issue of Australian Penthouse
The Review Board noted the following background material:
(i) the Classification (Serial Publications) Principles 2005 made under section 13(4) of the Classification Act
(ii) the Classification Board’s Decision Report for the publication titled, Australian Penthouse Unrestricted February 2013
(iii) the Classification Certificate for Australian Penthouse Unrestricted February 2013
(iv) the Publications Audit Report, dated 20 June 2013 for the May 2013 issue of Australian Penthouse
(v) the letter to Horwitz Publications from the Director of the Classification Board, dated 9 July 2013 (invitation to explain why classification should not be revoked)
(vi) the letter to the Director of the Classification Board from Australian Penthouse, dated 23 July 2013 (response to above letter)
(vii) the File Note by the Acting Deputy Director of the Classification Board, dated 9 August 2013
(viii) the letter to Australian Penthouse (C11/95) from the Director of the Classification Board (Notice of revocation of serial classification -Declaration number 25640).
Australian Penthouse is a publication containing photographs, general interest stories, letters and advertisements for adult products and services.
7. Findings on material questions of fact
The Review Board assessed the content in the May 2013 issue of Australian Penthouse (which is an issue covered by the serial declaration number 25640) and found that it contains aspects of importance under various classifiable elements:
Sex – The Review Board considered that the issue contained material that would be classified no more than Unrestricted.
The Board in particular considered the images on pages 43-50 which is the pictorial titled ‘Sparring Partners’. This pictorial consists of a series of photographs of two adult females, Karina and Eufrat. These photographs include: on page 44 one woman with her tongue on the other woman’s right nipple, on page 45 one woman kneeling in front of the other apparently undoing the bikini bottom of the other woman, on pages 46-47 one woman kissing the back of the other now nude woman who is posed in a rear facing position on elbows and knees, page 48 with one woman holding the other woman’s left breast and placing her mouth close to (but not touching) the breast, page 49 two women nude stand with their bodies touching each other, depicting their tongues touching and one woman’s hand apparently brushing the other woman’s breast, and page 50 with the two women nude standing opposite each other with the pubic area of one woman visible.
The Review Board considered that these images discreetly imply sexual activity involving consenting adults which is not high in impact. According to the Publications Guidelines, this content would be permitted in the Unrestricted Category.
(b) Nudity –
The Review Board considered that the images referred to above contain a variety of breast nudity, rear below waist visuals, and images in which both women are clearly nude. The Review Board considered that these are realistic depictions of sexual nudity but that they are not high in impact, and there is, at most discreet, genital detail. According to the Publications Guidelines, this content would be permitted in the Unrestricted Category.
(c) Adult themes -
According to the Publications Guidelines, the Issue contains content that would be permitted in the Unrestricted Category.
8. Reasons for the decision
The Review Board is of the opinion that the May 2013 issue of Australian Penthouse, which is covered by the serial declaration number 25640 does not contain material that, if the issue were being classified separately, would cause it to be classified with a higher classification than the original issue, which was classified Unrestricted.
Therefore the serial classification (declaration number 25640) is not revoked.
The review Board decided that the serial classification (declaration number 25640) of Australian Penthouse is not revoked.