The Australian Family Association were planning their protest even before 9 SONGS was submitted to the OFLC.
Sex Films Inflames Passions
MX News, October 20, 2004
Bill Muehlenberg from the Australian Family Association (AFA).
There are plenty of places people can go to see this sort of stuff. There's no need for it in normal cinemas.
... if 9 Songs was like Irreversible or Romance or Anatomy of Hell, which the AFA had opposed, they might appeal against an R rating.
Less than a month later, the OFLC delivered the AFA exactly what they wanted. An X18+ rating prevented 9 SONGS from screening in "normal cinemas".
On November 11, 2004, 9 SONGS was passed with an X18+ (Contains Sexually Explicit Material) rating. The 35mm print that Accent Film Distribution submitted ran 69m.
On November 12, 2004, the Classification Board issued the following media release explaining their decision.
9 Songs is classified X18+
The Classification Board has classified 9 Songs, the controversial British film by director Michael Winterbottom, X18+ in a split 7 to 1 decision.
X18+ is a specially and legally restricted classification category. Films in this classification are sexually explicit and contain real depictions of actual sexual intercourse and other sexual activity between consenting adults.
The X18+ classification means that the film can only be legally sold or hired in the Australian Capital Territory and the Northern Territory from premises licensed to sell X18+ videotapes and DVDs. Only people aged 18 years and over are able to buy and hire such films from these premises.
“The X18+ classification applies to films that principally concentrate on actual sexual activity”, said the Director of the OFLC, Des Clark. “Though the Classification Board acknowledges some claim to artistic merit in 9 Songs, the frequency, duration and detail of the explicit sexual activity in this film warrant that it be considered under the guidelines for the X18+ classification.”
The consumer advice for X18+ films is “Contains sexually explicit material”.
The Guidelines for the Classification of Films and Computer Games 2003 state that films classified X18+ cannot contain any depictions of violence, sexual violence, sexualised violence, sexually assaultive language or coercion. They may not contain fetishes. All depictions of characters must be consenting adults. The classification does not permit the depiction of non-adult persons, including those aged 16 or
9 Songs charts the development and demise of a relationship based upon sexual pleasure between a man and woman, against the backdrop of nine different songs they see played at rock concerts.
It features sequences of explicit sexual intercourse, oral sex, masturbation and ejaculation.
The Classification Board is an independent statutory body responsible for the classification of films, DVDs, videos, computer games and some publications. Board members are drawn from across Australia and are chosen to be broadly representative of the Australian community.
It is very unusual to see a mainstream title such as 9 SONGS classified X18+.
For any film to receive such a rating, it must contain absolutely no violence. Other titles that contain real sex such as BAISE-MOI and ANATOMY OF HELL would not be awarded such a rating due to their violent content.
Although an X18+ rating does not equal a ban, it does severely restrict the distribution opportunities. A general theatrical release would be impossible, and a DVD could only be rented in the ACT/NT, or supplied to other States by mail-order.
Explicit film OK in UK, but not here
sunherald.com.au, November 14, 2004
Des Clark, the Director of the OFLC.
We basically said, 'Yeah, the film's got some artistic merit',
But the frequency, duration and detail of the explicit sexual scenes meant the film went beyond the R rating.
He goes on to describe the X18+ rating as a:
....quite an extraordinary situation.
Des Clark confirms that despite it containing no violent material, the....
..... amount of actual sex in it exceeds our R-rating guidelines.
Rev Fred Nile Congratulates Federal Film Censor’s X Rating
For Pornographic Film – "9 Songs"
The Christian Democratic Party, November 16, 2004
The Rev Fred Nile has congratulated the Director of the Office of Film and Literature Classification, Des Clark, for the decision to prohibit the porn film "9 Songs" from being screened in Australian Theatres or available as a video.
The Federal Film Censor must uphold the Federal Government’s policy that real sexual intercourse and male and female genitalia cannot be approved for screening in Australia’s Theatres.
"The description of ‘pornographic film’ is justified for explicit films such as ‘9 Songs’", said Rev Fred Nile MLC.
In a pickle over slap'n'tickle
theaustralian.com.au, November 17, 2004
Dean O'Flaherty from Accent Film Distribution.
It's a totally non-violent film about sex and it's really quite sweet. Are we that backwards in our attitudes to sex? It's an indication of what's to come in terms of the increasing role of right-wing and Christian attitudes in censorship decisions.
Film critic Margaret Pomeranz.
It certainly isn't Winterbottom's best film, but you only have to look at his filmography to know he's a serious film-maker,
To shove it in with porn is so insulting to Winterbottom. I really
believe that this contravenes the [Classification] Act, because the basis of
the act is that adults should be able to read and hear and see what they
It's about relationship sex. I don't see why we can't have something that is completely legal represented on the screen.
Do the Australian authorities not even consider what is happening elsewhere? Don't they see that we are marginalising ourselves as a country? We are moving in the opposite direction to Britain, and you can't help feeling that these decisions are being generated by a minority.
Des Clark, the Director of the OFLC.
We make class decisions for the Australian community based on the tools that we have,
In the guidelines of sex and the R rating, it says simulation yes, real thing, no. The guidelines are clear, but the board has previously permitted some very brief actual sex, even if some of this has been surrounded by lots of simulated sex.
X marks the spot
smh.com.au, November 20, 2004
Gary Maddox looks at the 9 SONGS controversy and the general increase in sexual content of mainstream films.
Des Clark, the Director of the OFLC.
If you say that filmmakers are changing their standards, clearly that
has been the case,
But I don't believe that standards in terms of classification have changed, and I don't think that filmmakers lead the community ... They are people who make artistic films. That doesn't mean [the films] are necessarily going to be acceptable to the community.
The board has over time permitted brief moments in context ... of actual sexual activity, but only brief,
Asked if we will see more liberal standards in the coming years.
I don't think we necessarily will,
But the way the system is constructed allows for changing community standards over time.
If you were to look at classification over the last 50 or so years, there have been quite substantial moves in various directions around changing views of the community.
People are much less tolerant of violence. I think that's reflected in some of the decisions.
Is this a Swan Song for 9 SONGS?
accentfilm.com, November 24, 2004
As most of you who receive this note will have heard, the Australian Office of Film and Literature Classification (OFLC) has bestowed an X18+ rating on 9 Songs, the latest feature film from acclaimed British director Michael Winterbottom, whose previous works include Butterfly Kiss, Jude, Welcome to Sarajevo, Wonderland, The Claim and Party People.
We at Accent Entertainment were both stunned and dismayed by this decision and will be mounting an appeal to have this decision reversed, which given the recent censorship problems we experienced with the controversial French drama, Irreversible, seems an all too familiar scenario. An X18 rating means that 9 Songs can only be viewed in the ACT and Northern Territory on video or DVD, and then only through mail order via those video and DVD retailers with a licence to distribute pornography.
Coming from a country that prides itself on being one of the world’s most open-minded democracies, it’s a strange decision, particularly as both the UK and Irish censorship boards passed 9 Songs with an 18+ rating (equivalent to our ‘R’ rating) and will be launching it theatrically on March 11, 2005. In the United States, 9 Songs will be screened un-rated and in France, where the film received an 18+ rating, the public have lobbied to have the age restriction lowered to 16+.
For such a classification to be given to a film, particularly one of artistic merit from one of modern cinemas most admired filmmakers, is an appalling travesty of freedom of expression. 9 Songs is not a violent film, but an intimate glimpse of a brief, yet passionate relationship between two consenting adults. Yes, it does feature actual intercourse, but so did the recent art-house releases Romance and Intimacy both of which were released theatrically here with an ‘R’ rating (and surprising the world still continues to turn).
9 Songs is not an exploitative film, nor does it contain violence, cruelty to animals, dangerous political overtones or cunningly coded messages for members of Al Qaeda. It is a love story that reveals a generous degree of on-screen flesh, surely something that anybody over the age of eighteen, regardless of race, colour sex or creed, should have the right to view or not to view.
The decision should not be made for us.
Rachel Williams was a member of the Classification Board from 2000 to 2003. She exposes the myth about 9 SONGS containing 34 minutes of explicit sexual activity.
The struggle of naked truths
smh.com.au, November 26, 2004
Claims that the movie contains 34 minutes of explicit sex are untrue: in reality there is little more than 2 minutes of explicit sex in the 69-minute film. Moreover, Winterbottom isn't directing from a vacuum: this movie takes us further along the historic and progressive arc of explicit sex in mainstream films.
The controversial Baise-Moi juxtaposes violence with X-rated movie conventions; by contrast, 9 Songs does not make use of the conventional X cinematic vocabulary and does not include any violence. Nevertheless, Australians may not view this movie on the big screen.
Effectively, the film has been banned. The Classification Board has classified the film X: "a special and legally restricted category which contains only sexually explicit material". Cinemas cannot show the film legally in our country.
Until 2003, the guidelines stated that sexual violence could only be implied and could not be detailed. Under the new guidelines, there is no limit to the detail a filmmaker may include in order to depict sexual violence, if the sexual violence is implied and "justified by context".
The significance of this can be seen in the different reception given to Intimacy and Baise-moi. Little controversy has been attached to Intimacy, where the explicit sexual activity is brief and grey. The lack of controversy surrounding Kerry Fox performing fellatio raises the obvious question as to whether we can only lift the taboo on watching if we don't enjoy what we see. What will happen if a mainstream film depicts explicit sex in a loving and joyful manner?
The classification of 9 Songs focuses attention on the distinction between R and X films. That the majority of the Classification Board has decided a film by the respected filmmaker Michael Winterbottom contains "only sexually explicit material" and so is deserving of the same restrictions as Debbie Does Dallas gives critics of the law the opportunity to again state their concerns.
They will do so to a nation in flux, with the political rise of Family First providing a counterweight to the anti-censorship advocacy of groups such as the Eros Foundation.
Some films, such as child pornography and snuff movies, diminish us as human beings. The point of contention, clearly, is where to draw the borders between those films and the greater number of other movies, good, bad, and indifferent.
The following media release was issued by the OFLC on December 14, 2004.
Review announced for the film 9 Songs
The Classification Review Board has received an application from Accent Film Entertainment to review the classification for the film, 9 Songs, directed by Michael Winterbottom.
The Classification Review Board will meet on Monday 17 January 2004 to consider the application.
9 Songs was classified X18+ by the Classification Board on 11 November 2004. Films classified X18+ carry the consumer advice, “Contains sexually explicit material”. They contain real depictions of actual sexual intercourse and other sexual activity between consenting adults.
The X18+ classification means that the film can only be legally sold or hired in the Australian Capital Territory and the Northern Territory from premises licensed to sell X18+ videotapes and DVDs. Only people aged 18 years and over are able to buy and hire such films from these premises.
The Classification Review Board’s decision about 9 Songs and reasons for its decision will appear on the OFLC website once the review has been finalised.
The Classification Review Board is an independent merits review body. Meeting in camera, it makes a fresh classification decision upon receipt of an application for review. The Classification Review Board decision takes the place of the original decision made by the Classification Board.
The following media release was issued by the OFLC on January 17, 2005.
9 Songs classified R18+ upon review
A five-member panel of the Classification Review Board has determined, in a 3 to 2 majority decision, that the film, 9 Songs, directed by Michael Winterbottom, is classified R18+ with the consumer advice, “Actual sex, High-level sex scenes ”.
R18+ is a restricted classification. Only persons aged 18 years and over can gain entry to a film that has been classified R18+.
In the Classification Review Board’s majority opinion, the film warrants an R18+, rather than an X18+ classification, because, while some scenes may offend some sections of the adult community, the actual sex scenes are justified by the context, narrative, tone and artistic merit.
Classification Review Board Convener Maureen Shelley said, “9 Songs depicts a couple’s emotional and physical relationship and the sexual activity is incidental to and reflective of this theme.”
The Classification Review Board convened today in response to an application from the distributor, Accent Film Entertainment, to review the X classification of 9 Songs made by the Classification Board on 11 November 2004.
In reviewing the classification, the Classification Review Board worked within the framework of the National Classification Scheme, applying the provisions of the
The Classification Review Board is an independent merits review body. Meeting in camera, it makes a fresh classification decision upon receipt of an application for review. This Classification Review Board decision takes the place of the original decision made by the Classification Board.
The Classification Review Board’s reasons for this decision will appear on the OFLC website when finalised.
Classification Review Board
17 January 2005
23-33 MARY STREET
SURRY HILLS, NSW
Ms Maureen Shelley (Convenor)
The Hon Trevor Griffin (Deputy Convenor)
Ms Dawn Grassick
Mr Robert Shilkin
Ms Kathryn Smith
Accent Film Entertainment Pty Ltd (Accent), original applicant for
classification, represented by Mr Dean O’Flaherty (Marketing and
Acquisitions Manager, Accent);
Ms Raena Lea-Shannon (Solicitor, Michael Frankel & Co Solicitors),
Ms Margaret Pomeranz (Expert Witness);
Mr David Haines (Expert Witness).
Australian Family Association (AFA) represented by Mr Damien Tudehope
(Solicitor, O’Hara & Company).
Communications Law Centre (CLC) represented by Ms Elizabeth Beal (Director, Victoria University).
To review the Classification Board’s decision to classify the film 9 Songs (the film) ‘X’ with the consumer advice ‘Contains sexually explicit material’.
DECISION AND REASONS FOR DECISION
The Classification Review Board (the Review Board) in the majority classified the film ‘R’ with the consumer advice ‘Actual sex, high-level sex scenes’.
2. Legislative provisions
The Classification (Publications, Film and Computer Games) Act 1995 (the Act) governs the classification of films and the review of classification decisions. Section 9 of the Act provides that films are to be classified in accordance with the National Classification Code (the Code) and the classification guidelines.
Relevantly, the Code in paragraph 3 of the Table under the heading ‘Films’ provides that films (except RC films and X films) that are unsuitable for a minor to see are to be classified ‘R’. The Code also states various principles for classifications, and that effect should be given, as far as possible, to these principles including, that “adults should be able to read, hear and see what they want”.
Section 11 of the Classification Act requires that the matters to be taken into account in making a decision on the classification of a film 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 film; and
(c) the general character of the 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 use of the 2003 Guidelines for the Classification of Films and Computer Games (the Guidelines), determined under Section 12 of the Act:
• The importance of context
• Assessing impact
• Six classifiable elements – themes, violence, sex, language, drug use and nudity.
Having earlier received a valid written application for review, five members of the Review Board viewed the film 9 Songs at its meeting on January 17, 2005.
The Review Board made the formal determination that the application was valid.
The Review Board accepted written submissions from the Australian Family Association and the Communication Law Centre but declined to hear oral submissions from these organisations’ representatives.
The Review Board then received oral submissions from Ms Raena Lee-Shannon representing the Applicant, which was confirmed in a written submission and from Ms Margaret Pomeranz and Mr David Haines. Mr Dean O’Flaherty also attended on behalf of the Applicant during the oral submissions.
The Review Board then met in camera to consider the matter.
4. Evidence and other material taken into account
In reaching its decision the Review Board had regard to the following:
(i) Accent’s application for review;
(ii) Accent’s written and oral submissions;
(iii) The AFA’s written submission;
(iv) The CLC’s written submission;
(v) The film;
(vi) The relevant provisions in the Act;
(vii) The relevant provisions in the Code, as amended in accordance with Section 6 of the Act;
(viii) The Classification Board’s report; and\
(ix) The Guidelines for the Classification of Films and Computer Games 2003.
Lisa, a young American student in London for a year, meets a somewhat older Matt at a concert in suburban London. They commence a romantic and sexual relationship. The explicit and at times intimate film follows the course of their physical and emotional relationship using the device of depicting their sexual acts and rock concert attendance. They then part at Lisa’s instigation. The narrative is given from Matt’s perspective as he reflects on what he remembers of the relationship.
6 Findings on material questions of fact
The Review Board found that the film contains aspects or scenes of importance, under various classifiable elements:
(a) Themes – Despite his relationship with Lisa, Matt expresses feelings of loneliness at 44 minutes (“5,000 people at a concert and you can still feel alone”). At approximately 46 minutes, the film depicts Lisa playing with a bottle of tablets. She seems depressed. She appears to smoke a marijuana cigarette. Matt expresses concern. She says, “I haven’t taken any fucking pills at this time of the day. You’re not paying any fucking attention to me.” These themes of loneliness, depression and potential suicide are moderate in impact and justified by context.
(b) Sex – The film is mainly concerned with the couple’s sexual relationship and their attendance at rock concerts. At 34 seconds the scene depicts the couple in what could be a simulated sex scene. The lighting is subdued, the audience hears heavy breathing. Matt speaks: “I remember her smell, her taste”.
At approximately 2 minutes 18 seconds the film depicts a scene of apparent cunnilingus.
At 2 minutes 43 seconds Matt squeezes Lisa’s breast and nipple.
At 2 minutes 57 seconds and 3 minutes 10 seconds scenes of what appears to be simulated sex are shown.
At 3 minutes 36 seconds Lisa is astride Matt and they appear to be having sex.
At 9 minutes 28 seconds is a scene of apparent cunnilingus.
At 9 minutes 44 seconds Matt’s head is shown between Lisa’s legs.
At 9 minutes 58 seconds Matt’s tongue is shown in Lisa’s pubic area. This appears to be a scene of actual sex.
At 10 minutes 16 seconds is a scene of implicit sexual intercourse.
At 13 minutes 49 seconds an implicit sex scene is shown. There is some moaning and little other detail.
At 14 minutes an implicit sex scene is shown and the couple do not use a condom.
At approximately 21 minutes the film depicts Matt’s erect penis in the bath water. Lisa begins to manipulate his penis with her feet which she does for approximately one minute. Matt’s penis lengthens and becomes more erect during this activity. This is a scene of actual sex.
At 26 minutes 44 seconds Matt kisses Lisa’s breasts. His hands clasp her head more tightly than necessary. There is some discomfort in watching this action, which is not quite menace.
At 27 minutes 30 seconds Lisa reads a sexually-charged passage from a book.
At approximately 28 minutes 23 seconds Matt blindfolds Lisa. He ties her hands to the bed posts.
At 29 minutes 12 seconds is a visual of Lisa’s pubic area shown at a low angle and between her legs as she lies on the bed. There is some genital detail.
At 29 minutes 46 seconds Matt’s head is shown between Lisa’s legs in the area of her genitals. There are further visuals of Lisa’s blindfolded face with her mouth open and of her breasts.
At 30 minutes 28 seconds Matt’s tongue is shown and he apparently licks Lisa’s pubic area.
At 31 minutes Matt’s head is off to one side but still depicted between Lisa’s legs. Lisa says, as if still reading, “she grabs his balls and puts his cock in her mouth. Fuck me man. Fuck me, come up here.”
At 32 minutes 37 seconds Matt has his erect penis in his hand.
At 33 minutes Matt is astride Lisa, she is still bound, she tries to alter the position of her hands but is unable to free them. She says “Fuck me”. This continuous scene is shown for approximately 5 minutes. In the background during the scene is piano music that is soft and slow. The other sounds heard are the couple’s breathing. The scene ends at 34 minutes 30 seconds.
At 37 minutes 53 seconds Lisa is shown blind folded (but not bound). Matt holds her head. Lisa says “do it harder”. Matt holds her neck and massages it firmly. There is a low-level sense of menace.
At 38 minutes 29 seconds Lisa takes Matt’s hand and puts it in her vaginal area. At 40 minutes 15 seconds Lisa is shown apparently using a dildo to stimulate herself.
At 41 minutes Lisa is shown breathing rapidly, she makes some moaning sounds.
At 42 minutes 39 seconds Lisa is shown in bed with a top on and without knickers. She is implicitly using a vibrator. Matt is watching her from a distance. Lisa is shown prone on the bed, moving very little. She apparently reaches climax. Matt walks away.
At 47 minutes 58 seconds Lisa ties Matt to the bed, she slaps his face with her open hand and puts her stiletto heel into his chest and puts her weight on her foot. She then puts her booted foot onto Matt’s legs. She undresses.
At 49 minutes 45 seconds Lisa asks Matt “do my nipples feel sore to you? They are.”
At 50 minutes a two-minute scene of actual sex commences. Lisa kisses Matt’s penis and pulls at his testicles. She holds his penis in her mouth (actual sex), she manipulates his penis with her hand (actual sex), her hand is shown repeatedly manipulating Matt’s penis (actual sex). Matt explicitly ejaculates (actual sex). His semen is explicitly shown spurting out of the end of his penis onto his chest and stomach (actual sex). Lisa continues to fondle Matt after he climaxes. The scene is prolonged and contains significant detail.
At approximately 60 minutes an actual sex scene of two minutes duration is shown.
At 60 minutes Lisa removes her knickers and the couple start to fondle each other.
At 60 minutes 28 seconds, explicit vaginal penetration is shown. The camera angle is at the end of the bed as the shaft of Matt's penis explicitly enters Lisa’s vagina. Her vagina is visible and some detail is shown including pubic hair, open labia and moist clitoral region. Matt’s penis is erect and wet. The camera angle is from the end of the bed toward the couple. Matt is on his knees facing away from the camera and is seen in mid shot. His buttocks and testicles are shown. The shaft of his penis is shown explicitly entering Lisa’s vagina and partly withdrawing and moving up and down, re-entering her vagina in a rhythmic manner. The scene is prolonged and detailed and ends at approximately 62 minutes and 21 seconds. The film ends at 69 minutes 23 seconds.
The majority view was that the sex scenes (including those of actual sex), while high in impact, were justified by context and could be accommodated at an ‘R’ classification. It was the view of the minority that the impact of two prolonged scenes of actual sex was very high and the cumulative impact of all the actual sex scenes was very high. The minority view was that the amount of actual sex scenes was gratuitous.
(c) Drug use – At approximately 12 minutes a character apparently snorts what appears to be cocaine up their nose.
At approximately 36 minutes the protagonists apparently smoke a marijuana cigarette at a concert.
At 46 minutes the scene described under themes takes place.
At approximately 57 minutes the characters both appear to snort cocaine. The drug use is moderate in impact and justified by context.
(d) Language – The characters use strong coarse language during the film.
At approximately five minutes Lisa says to Matt “Fuck me”. At 15 minutes someone says colloquially: “Fucking weird man”.
At 31 minutes Lisa says to Matt, “Fuck me man, fuck me”.
At approximately 38 minutes Lisa tells Matt that at times she would like to bite him in “not a nice way”, “I want to bite you, fucking hard”. All of these references would be in keeping with an ‘MA15+’ classification.
At 46 minutes the scene described under themes takes place. The coarse language is strong in impact and justified by context.
(e) Nudity – At 2 minutes 43 seconds Lisa’s breast and nipple are shown.
At 4 minutes and 27 seconds Lisa gets out of bed naked, her breasts and buttocks are shown.
At 11 minutes Lisa walks naked and her breast and buttocks are seen.
At 11 minutes 30 seconds Matt is seen naked, his penis is visible.
At 11 minutes 54 seconds Lisa lays on the table naked.
At 12 minutes 5 seconds Lisa watches her naked self in the mirror.
At 12 minutes 57 seconds Lisa is seen dancing without knickers on. Her buttocks are seen.
At 20 minutes 57 seconds the couple are seen in the bath naked. Her breasts and his penis are depicted.
At 22 minutes 37 seconds Matt removes his clothes and goes swimming. His buttocks are shown.
At 26 minutes Matt and Lisa are naked in bed.
At 39 minutes 48 seconds partially naked women are shown dancing.
At 41 minutes 37 seconds the couple is shown naked in bed. Lisa is crying.
At 56 minutes Lisa and Matt are shown naked kissing in bed. Lisa sits on Matt. Her breasts are seen. The nudity is strong in impact and justified by context.
The Review Board in the majority found that while the overall impact of the material was ‘high’, there was not sufficient strength in the film to cause a higher level of impact for any individual scene or cumulatively. Scenes were dealt with in a realistic yet restrained manner that was not gratuitous or exploitative. Each scene was justified by the context in which it was presented and the overall theme of the film, the couple’s sexual and emotional relationship.
The Review Board in the majority found that the film had a serious intent and some artistic merit and that the sex scenes were justified and in context.
It was the view of the minority that at least two of the individual scenes were prolonged, detailed and gratuitous and as such went beyond what the Review Board had been previously prepared to accept within an ‘R’ rated film. Further, the cumulative impact of the lengthy and numerous actual sex scenes ensured that the impact of the film was very high and as such should be Refused Classification.
7 Reasons for the decision
The ‘X’ classification, the unanimous view
The Review Board considered the Classification Board’s report and the classification given by the Board of ‘X’. The Review Board made a careful examination of the Guidelines in this regard. The Guidelines state that, amongst other fetishes, bondage is “not permitted”. There is no discretion available to the Review Board in this instance. If a film contains bondage then it cannot be classified ‘X’ as fetishes “are not permitted”.
The film contains two scenes that the Review Board unanimously determined to be “bondage” scenes. The first is where Lisa is tied by her wrists to the bed and blindfolded. Matt then explicitly performs actual sexual acts with her. The second is where Matt is tied by the wrists to the bed and blindfolded. Lisa slaps him across the face, steps on him with a stilettoed foot and performs explicit actual sexual acts with him.
The Review Board determined that these were scenes of bondage and the latter scene was one of sexualised violence. As such, the Review Board accepted the Applicant’s submission on this issue – as represented by Mr Haines – and determined that the Guidelines do not permit the film 9 Songs to be classified ‘X’.
If not ‘X’, then what? The majority view
The Guidelines for R18+ films state that “sexual activity may be realistically simulated; the general rule is ‘simulation, yes - the real thing, no’ ”.
The rule is expressed to be a general rule, implying the possibility of exceptions in a limited number of instances. While the general rule must be given weight by the Review Board, its application to any given film must be consistent with the scope and objects of the Act and the Code. The general rule cannot be applied so inflexibly such that the various matters in the Act and the Code (all of which the Review Board is required to consider in reaching a decision) are effectively ignored or rendered immaterial.
In Reid v Director-General of Social Services (1981) 4 ALN No. 1, the Administrative Appeals Tribunal stated:
in exercising the discretion under [the relevant section] of the Act 'the decision-maker must have regard to whether, by exercising the discretion in a particular case, he will be achieving or frustrating ends or objects which are conformable with the scope and purpose of the ...Act .. Thus while keeping the general rule laid down by [the relevant section] in mind, the decision-maker must nevertheless be prepared to respond to the circumstances of a particular case if for any special reason the application of the general rule would be unjust, unreasonable or otherwise inappropriate having regard to the scope and object of the Act.
In a limited number of previous decisions, the Review Board has permitted exceptions to the general rule by allowing depictions of “the real thing” in the R18+ category (for example Romance, Irreversible and Anatomy of Hell). These films variously contained scenes of actual intercourse, fellatio and masturbation.
The Review Board in the majority found that there were special aspects of 9 Songs which differentiated it from other films which feature “the real thing” and have been Refused Classification by the Classification Review Board:
• 9 Songs is a film in which Matt and Lisa’s relationship is explored, from Matt’s perspective, through music and sexual activity. In this context, the scenes of actual sex are integral to the plot and theme of the movie.
• 9 Songs, made by the highly-regarded British director Michael Winterbottom, is a film of serious intent and considered by many to have artistic merit. The underlying themes of the movie, the honest, realistic and, at times, emotional and poignant depiction of the couple’s relationship, which were integrated with the scenes at rock concerts, were likely to resonate with a number of the film’s likely audience and had artistic value.
• The scenes of actual sex are not considered by the majority to be exploitative, immoral, indecent, demeaning, improper or gratuitous. In particular, regarding the scene in which Lisa slaps Matt and steps on him with a stiletto boot, the majority was of the view that the impact of this scene was mild and was not demeaning to Matt or Lisa.
• The tone of the scenes of actual sex, in terms of theme and style, were contextually relevant, filmed in a restrained manner and different from standard pornographic films that are routinely classified ‘X’.
Accordingly, viewed in context and in light of the above points, the scenes of actual sex were, in the view of the majority, of no more than high impact.
While some adults would be offended by the film, most reasonable adults (even if some would choose not to see the film) would not be offended. In reaching this conclusion, the majority was influenced by its belief that the Australian community is more accepting of a film containing contentious elements that are sexual in nature, are neither violent nor exploitive and are between consenting adults.
After careful consideration, the majority of the Review Board determined that the limited discretion implicit in the application of the general rule should be exercised because, in this instance, ‘R’ was the most appropriate classification for the film, having regard to the special aspects of the film mentioned above, and the objects and operation of the classification scheme (in particular Section 11 of the Act, the four guiding principles in the Code and the Guidelines).
The minority view
It was the minority view that the film should be classified ‘RC’ as the contentious material exceeds that permissible in the ‘R’ classification. The minority noted previous decisions of the Review Board permitting fleeting, non-detailed scenes of actual sex and case law regarding the application of a “general rule”. In the film, the actual sex scenes were prolonged and detailed, took more than five minutes of the 69 minute film and were shown with full lighting. The amount of actual sex scenes and cumulative impact of those scenes was gratuitous. It was also noted that the protagonists were not the subject of sexualised violence in the actual sex scenes of the three previous films depicting actual sex that have been classified ‘R’ by the Review Board.
The minority of the Review Board noted that the AAT stated in Reid v Director-General of Social Services that:
there must be some factor or factors in the circumstances of the particular case which take it outside the common run of cases
The minority view was that there were no circumstances in the particular film to “take it outside the common run of cases”. The argument put by the majority is that given the theme of a sexual relationship, artistic merit of the film and likely audience that the actual sex is justified by context and cites these as special factors to take 9 Songs outside the “common run of cases”. However, artistic merit and likely audience are but two of the four matters to be taken into consideration in making classification decisions. The first of the four listed “matters to be considered in classification” is the “standards of morality, decency and propriety generally accepted by reasonable adults”. It was the minority view that the gratuitous actual sex, in particular the explicit actual ejaculation scene and sexualised violence present in the film exceeds this standard.
Further, proper consideration of the impact of the explicit ejaculation scene in regard to Section 11 (d) of the Act and under the Guidelines in the circumstances of a public cinema need to be given as does the “class of persons” who attend such cinemas. These cinemas use larger screens and more powerful sound systems than that used by the Review Board and films have greater impact in these circumstances. No previous film in Australia has been classified ‘R’ by the Review Board where it contains a prolonged, detailed scene of explicit, actual ejaculation.
Also sufficient weight and proper consideration of the principles to be given effect in classification decisions under the Code, particularly (d) needs to be given, especially for the scene where Lisa slaps Matt across the face and stands upon him whilst she is wearing stiletto boots and where he is blindfolded and tied to the bed. One principle that the Code requires the Review Board to give effect to “as far as possible” is “the need to take account of community concerns about” “the portrayal or persons in a demeaning manner”. The scene depicts actual sexualised violence (although at a lower level of violent scenes) in an actual sex scene and where it is the minority that Matt is portrayed in a demeaning manner. No sexual partner, regardless of gender, should be portrayed in a demeaning manner or subject to sexualised violence in actual sex scenes in a classified film, in the view of the minority.
The film has a serious intent and the minority accepted the submission of the applicant that the film has some artistic merit. However, the mere absence of more extreme sexual behaviour does not constitute a factor to set aside the general rule of “simulation, yes – the real thing, no”.
While the classifiable elements and the impact in the overall context of the film 9 Songs, in the majority view, did not justify a Refused Classification, the impact and contentious material warrant the legally-restrictive ‘R’ classification.
It was the majority view of the Review Board that the contentious material and impact of the film did make it unsuitable for minors and warranted specific consumer advice relating to actual sex and high-level sex scenes.
It was the minority view that the film should be Refused Classification.
On February 14, 2005, Senator Brian Harradine questioned the Director of the OFLC in Senate Estimates about the rating awarded to 9 SONGS.
LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE
Office of Film and Literature Classification
Mr Des Clark, Director
Mr Paul Hunt, Deputy Director
Mr John Robinson, Business Manager
CHAIR —Welcome Mr Clark, Mr Hunt and Mr Robinson. I understand we will start with questions from Senator Harradine.
Senator HARRADINE —I am wondering about the answers that have been given to me over a period of time in respect of the contents of X material. In the Daily Telegraph of 18 January this year the Classification Review Board rated a film featuring real sex scenes as R rather than X. This overturned the decision of the OFLC. Given statements made by the OFLC to the committee over the years, what grounds were used to rate that film X when clearly it came within the guidelines of R?
Mr Clark —In answer to your question, the board, in making an X decision, was of the view that the amount of actual sex in the film did not permit it into the R classification but that, because there was no violence or other content that would cause it not to fit into the X classification, the board placed in that classification category. The review board made a different decision in interpreting the same guidelines, but I am unable to tell you precisely their thinking in relation to that. As you know, the Classification Review Board makes a new decision and it is entirely their decision to make.
Senator HARRADINE —I thought you may be able to provide the information to the committee as to why the review board made such a decision in contradistinction to yours.
Mr Clark —I am unable to comment on review board decisions. As I understand it, the reasons for the decision by the review board are not yet complete but when they are complete they can be made available to you.
Senator HARRADINE —However, your guidelines are fixed, are they not? They have not changed.
Mr Clark —No, the guidelines have not changed and the review board use the same guidelines.
Senator HARRADINE —In a previous estimates committee I questioned the OFLC on earlier film classification decisions and was assured that, for R rated films:
Sexual activity may be realistically simulated; the general rule is “simulation, yes—the real thing, no.
When making classification decisions about nudity in a sexual context, which includes genital to genital contact, the Classification Board applies and has always applied the general rule.
That was a statement made by your officers. You are now telling me that you cannot comment on the review board's decision.
Mr Clark —As chairman of the classification board it would be entirely inappropriate for me to comment on a decision made by the Classification Review Board, which is an independent statutory board. I can comment on the application of the guidelines by the classification board, of which I am a member, and my answer to you at that time still stands true in relation to the guidelines for sexual activity at the R classification and the application of a general rule.
Senator HARRADINE —So, in fact, it is just a technical question as to whether there is real sex involved or not.
Mr Clark —It is not a technical question. The board, in a number of decisions over 10 years, has applied the general rule and permitted small amounts of actual sex depending on the context and the merit of the film, but the general rule is applied.
Senator HARRADINE —You say `the context' of the film.
Mr Clark —Yes.
Senator HARRADINE —So you take that into consideration. Do you take the pornographic intent into consideration? I can envisage films that may have no pornographic content or intent at all but which would have nudity, for example. According to what you have just said, you have indicated that you do have regard to the nature of the content.
Mr Clark —The context of the story of the film and the way that is told is different to the intent. If the intent is purely pornographic I am sure that the board will apply the guidelines very rigidly. But if the film has merit—and it is a judgment that the board makes under section 11 of the act—it may be permissible in applying the general rule. But, in applying the general rule, the board would certainly not be permitting films which have a sexually explicit intent which would sit most appropriately in the X classification.
Senator HARRADINE —What is a sexually explicit intent?
Mr Clark —That is the purpose of the film. That is all it is about and that is what X rated films are.
Senator HARRADINE —I just cannot cope with those words together—sexually explicit intent. You are talking about pornographic intent, presumably, are you?
Mr Clark —The guidelines do not actually use the word `pornographic' and nor does the code. Sexually explicit intent, if you like, of making a film like that would place it into X. It would not fit into the R classification. An R classification has permitted, under the general rule, from time to time a small amount of actual sexual activity, but it is in the context of a film which is mostly not about that; it is about narrating a story.
Senator HARRADINE —So you could have a pornographic theme in part of the film which relates to the explicit area and that would normally be classified as X?
Mr Clark —Under the guidelines, films that are classified X contain sexually explicit material, and that is mostly what they contain.
Senator HARRADINE —Why don't you assess the films on their pornographic intent and content or otherwise?
Mr Clark —We assess X-rated films on their explicit sexual content. The word `pornographic' is not in any of the guidelines.
Senator HARRADINE —That is what you did on this particular occasion. You classified this particular film, 9 Songs, as X.
Mr Clark —We did because of the amount of sexual activity in the film. The board recognised that it had a more serious intent than other X-rated films because it had musical performances, but the board's view was that the film sat within the X classification.
Senator HARRADINE —Again, you are talking about the question of explicit intent. Does that mean pornographic intent?
Mr Clark —I do not believe that the film had pornographic intent, because we do not seek to measure that. We believe that the amount of actual sex in 9 Songs exceeded the guideline for R, but it does not necessarily have to be RC because it could be accommodated at the X classification.
Senator HARRADINE —Would you agree that the definition of porn is material, the content and intent of which is designed to arouse the sexual desires of its target audience?
Mr Clark —No I do not. Pornographic can mean many things. It depends on how the word is applied, if I go to the dictionary for its meaning. I think that is the reason why the `pornographic' does not appear in the code or in the guidelines.
Senator HARRADINE —So you would deny that that definition was appropriate?
Mr Clark —It is one of many. It does accommodate that, but there are many interpretations of the meaning of `pornographic'.
Senator HARRADINE —Like what? Could you explain?
Mr Clark —I am trying to think of a good example. I think sometimes matters of crime could be applied as being pornographic as well in their intent. I would really need to get the dictionary, but that is my last reading of the meaning of the word.
Senator HARRADINE —Can the public expect that material which contains small amounts of pornographic and explicit sex will be classified as X—is that right?
Mr Clark —No. It is a possibility, but that is not the case because many of these films that have been given an R classification which do contain some explicit sex also contain violence or other activities which would prohibit them from being in the X classification.
Senator HARRADINE —I understand that. That is a given. We have been through this time and time again.
Mr Clark —Yes we have, Senator.
Senator HARRADINE —I do not have to be told that.
Mr Clark —But that still applies.
Senator HARRADINE —Yes, but I am talking about how explicit material—and I specifically use your words and added my word to make it explicit and pornographic material—would thereby be classified by your board as X.
Mr Clark —Provided it meets the guidelines for X, yes, it could be.
Senator HARRADINE —I am trying to get to what the new guidelines are for X.
Mr Clark —The note to the guidelines for X says:
This classification category applies only to films. This classification is a special and legally restricted category which contains only sexually explicit material. That is material which contains real depictions of actual sexual intercourse and other sexual activity between consenting adults.
Senator HARRADINE —Thank you.
In February 2005, Robert Lawson, a Liberal member of the South Australian Legislative Council showed himself to be a supporter of the Festival of Light, and to be of the opinion that 9 SONGS was incorrectly classified.
South Australian Parliament
Monday 28 February 2005
CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) (TYPES OF CLASSIFICATIONS) AMENDMENT BILL
The Hon. R.D. LAWSON: There are a number of reservations—sometimes, serious reservations— expressed about the current system. In fact, some of the recent decisions in relation to the classification of movies by the Classification Review Board have been described as outrageous by the Festival of Light. Those decisions include the R rating for the film Nine Songs and the MA rating for the film Birth.
It is not surprising that from time to time the South Australian Attorney-General expresses his disagreement with classification matters. However, he rarely appears to exercise the power which he has to seek a review of classifications. Mrs Ros Phillips, the research officer for the Festival of Light, has indicated to me her dismay at the 2003 rewrite of the classification guidelines for films and computer games. In her view, recent classification decisions have shifted in a more permissive direction despite a written assurance from the Office of Film and Literature Classification to the effect that classification standards would remain unchanged after those new guidelines came into operation. "
Notwithstanding the reservations that Mrs Phillips and others have expressed, we believe that the current system, with all its imperfections, is working satisfactorily. The fact that some ministers choose to express reservations about particular decisions of the classification board, but then refuse to take the steps open to them to have those reviewed, is really a comment on the commitment of a particular minister rather than an adverse comment on the system itself.
The new rating finally appeared in the OFLC database on May 6th, 2005. The 69m 35mm print was classified R18+ (Actual Sex, High Level Sex Scenes).
Accent Film Distribution finally opened 9 SONGS on May 12, 2005.
In May 2005, the Director of the OFLC, Des Clark, was back ay Senate Estimates in Canberra.
Again, he was questioned about the rating awarded to 9 SONGS. This time it was by Senator Julian McGaurin of the Victorian National Party
LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE: Office of Film and Literature Classification: Discussion
Date: 24 May, 2005
Department: attorney-general's portfolio
Database: Estimates Comm.
Committee name: LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE
Program: Office of Film and Literature Classification
Senator McGAURAN—Turning to another movie, 9 Songs, in the review board’s own report it is admitted that this movie has pushed all the boundaries; that it has taken the next step and broken the record. It states:
No previous movie in Australia has been classified R by the review board where it contains a prolonged, detailed scene of explicit ....
It is talking about sex, basically. So it has pushed the boundaries. To me, it has gone over the boundaries, but it has pushed the boundaries. This movie, 9 Songs, is a first. So there has been a distinct change. When a movie like Salo can be banned, with lesser degree scenes than either Irreversible or 9 Songs, it means that there has been a discernible shift in the interpretation of the code, and that the new code itself is different from the old one. Do you agree that 9 Songs is a movie like no other that has been released?
Mr Clark—Senator, because it is a decision of the Classification Review Board, I really do not want to comment on the decision. Certainly, as I understand it, the amount of actual sex contained in the film is greater than we have seen before—not a huge amount greater, but certainly there is a greater amount of actual sex in the film than in any other film before. But that is a decision regarding interpretation of the guidelines, not a change in the standards contained in the guidelines. With respect to the guidelines for sex at the R level, the words used in these guidelines and in the old guidelines are the same.
Senator McGAURAN—They are the same. So you are saying there has been a change in the interpretation of the guidelines. There has been a discernible shift.
Mr Clark—It is for the review board to interpret the guidelines. I cannot comment on that.
Senator McGAURAN—What are we to make of this report that goes to the minister, no less? It says:
There is no discernible shift in the nature of permissible material within particular classification categories ...
But there has. 9 Songs proves there has been a discernible shift. We have a first on our screens. Anyway, continuing on, if I may.
CHAIR—Senator McGauran, I want to alert you to the fact that the committee does have a very significant time constraint tonight. We have the entire estimates for the Australian Customs Service to examine this evening and we are running very short of time. Could you give the committee some indication of how long you might wish to spend with the OFLC?
Senator McGAURAN—Barring sidetracks—
CHAIR—Whose—yours or ours?
Senator McGAURAN—Probably mine—20 minutes.
CHAIR—Could we review that in 10?
Senator Ellison—Perhaps we can also take some questions on notice.
CHAIR—That would be very helpful to the committee.
Senator Ellison—We want to ensure that Senator McGauran gets all his questions up.
Senator McGAURAN—I have a letter here from the Attorney-General on a certain matter. I will read you a paragraph of it. It says:
However, Board and Review Board members, as statutory appointees, endeavour to make decisions which are as objective as possible, on behalf of the community and not as personal opinions. In other words, the boards apply what they consider to be the standards of reasonable adults in the community, rather than the personal standards of members.
Take into account that Philip Ruddock has quoted that you take community views into account. In a letter to Senator Harradine, from Minister Ruddock, he says that, in the case of 9 Songs, consumer advice was sought. Can you tell me what community opinion was sought when you reviewed the movie?
Mr Clark—Sorry, Senator, would you repeat the last phrase.
Senator McGAURAN—That community views were taken into account with regard to 9 Songs. He says that to me. He calls it consumer but in my letter he calls it community. You know what he is getting at. In fact, it is even part of your brief. Isn’t it your brief to take in community views?
Mr Clark—The classification board is broadly representative of the Australian community and, in making decisions, it plays out that role. In the ordering of the business of the board, often a board member may alone or with one or two others be in a position to have to make a decision on the classification of a product. In making a decision in that manner, they need to have regard to the views of the whole board. The whole board does have a range of views and they need to seek to reflect that in a decision. If they do not think they can do that, they will go back for a re-screen or another consideration of the product. When the classification board meets as a whole, they will more specifically articulate their own views in relation to their classification decision but they all have regard to and respect the views of the other members of the board. They have a vigorous discussion and then come to a decision so that, in making a decision, they are fulfilling the board’s statutory function, which is to be broadly representative of the Australian community. That is why they are there.
Senator McGAURAN—Am I to take it from that answer that they do assert their personal opinions?
Mr Clark—I have described to you the two ways in which they work. One is that it is a collective view of the board and, yes, in other circumstances they will have vigorous discussion. But, as I say, they have respect for it. It is not about being representative of any particular group; they just have to have regard to broad views in the community. As you appreciate, that is not going to suit everybody. Not everybody is going to be happy with those decisions.
Senator McGAURAN—I see your point but Mr Ruddock would not because he says you do not take into account your personal views—but you do bring your experience and broad views to the board I am sure. But it is clear not only from Mr Ruddock’s letter to Senator Harradine and to me with regard to 9 Songs and according to your charter that you must take into account community views, whatever way you do it.
Mr Clark—Yes, correct.
Senator McGAURAN—Specifically in relation to 9 Songs, how did you take into account community views?
Mr Clark—Senator, as I described to you, we are there because of the fact that the board members are widely experienced in the community. They participate in the community. They come from all over Australia from all sorts of geographic origins. In doing that, part of their function is to reflect the community. Therefore they do that in their day-to-day decision making. In testing our decisions, in saying, ‘Are we consistent with the community?’ we have done the community assessment panels in the past 10 months, and these are saying that the board is making decisions which are broadly consistent with community standards in terms of the focus groups done as part of that. The operational review has looked at that and there has been significant consultation there, talking with people about decisions being made by the board as to whether there has been a change in standards within the 2003 guidelines. In addition to that, the actual process for establishing the guidelines and developing the new guidelines once again involved a very extensive consultation process. So we are testing all the time. We do not just go out on one decision and say, ‘Are we consistent with community views?’ There is this ongoing process of research and finding out, ‘Are we in the right place?’ and broadly saying to us, ‘Yes you are.’
Senator McGAURAN—Then why did you, in reflecting community views, differ from the review board?
Mr Clark—That is the system, and the way the system operates—
Senator McGAURAN—They have a different outlook from the community view.
Mr Clark—The review board makes a new decision, and from time to time the review board will make a decision at a higher classification level, the same level or a lower level. That is another test of the system and that is the function of the review board. It is a new decision. They use the same tools we use in the process.
Senator McGAURAN—They have the same community touchstone you do.
Mr Clark—Yes, and they use the guidelines, the same code and the same sections of the act to come up with a decision. From time to time they will come up with a different decision, and that is demonstrating that the classification system is working.
Senator McGAURAN—The classification system makes it quite clear that bondage is inadmissible in a movie. Did you find that there was any bondage in 9 Songs? It is not even a point of discretion; it is out.
Mr Clark—The board came to a different view from the review board in relation to one scene in the—
Senator McGAURAN—Did you? Did your board find bondage—
CHAIR—Senator, Mr Clark is answering your question.
Mr Clark—In looking at that scene the board was of the view that this was a more of a role-play situation than a bondage situation. The board are very familiar with what a bondage situation is and were of a view that this was not the sort of activity that could be described as bondage in the sense of what they are accustomed to seeing in classifying or refusing classification to material that would seek to be an X-rated movie.
Senator McGAURAN—So it was role playing, not bondage?
Mr Clark—They are the words used in the board report in relation to this film.
Senator McGAURAN—The review board—the other mob—deemed it as bondage. They knew it to be.
Mr Clark—They did, but they also deemed it to be very mild as well in that context.
Senator McGAURAN—Did you read anything in the classification that it says mild bondage is all right but hard bondage is not?
Mr Clark—I did not describe it as mild bondage. That is the decision of the review board and I am not in a position to comment on a decision by the review board. I can only say that in coming to an X classification on the film 9 Songs and looking at that scene, they were of the view that it was not a serious bondage scene but more of a role-play scene.
Senator McGAURAN—So they have used their discretion about what is a serious bondage scene and what is a mild bondage scene. Though they accept that it is bondage and you do not—
Mr Clark—In the guidelines it just says:
Fetishes such as body piercing, application of substances such as candle wax, ‘golden showers’, bondage, spanking or fisting are not permitted. The board was of the view that this was not bondage.
Senator McGAURAN—Yes, I know. But the review board was of the view that it was. Once you accept that it is, there is no room for discretion, be it mild or hard bondage or whatever you want to call it.
Mr Clark—The board was of the view that it was not bondage. If it was bondage in the view of the board, it would have been refused classification.
Senator McGAURAN—You are all getting very muddled. You do not think it is bondage and therefore it would not be refused classification on that basis. The review board thinks it is bondage and yet gives it classification. What a right muddle. Where are they? Are they here?
Mr Clark—The convener can be called, but she is not here. I would be very happy to take that on notice for a response from the convener of the Classification Review Board.
Senator McGAURAN—Chair, why isn’t there anyone here from the review board?
CHAIR—Would you like that taken on notice, Senator McGauran?
Senator McGAURAN—To whom?
CHAIR—To the convener of the review board.
Senator McGAURAN—To answer that question?
Senator McGAURAN—It was a statement.
Senator LUDWIG—You cannot make a statement.
CHAIR—We actually deal in questions and answers here.
Senator McGAURAN—You are all muddled. All right, let her answer this: why are you all so muddled?
CHAIR—I do not think that is the question. The question is a specific question you were asking about 9Songs. That was my understanding.
Senator McGAURAN—All right. If she can possibly answer that, I would appreciate it.
Senator Ellison—We will take that on notice.
Senator McGAURAN—On 14 February Senator Harradine asked you:
Do you take the pornographic intent into consideration?
If the intent is purely pornographic I am sure that the board will apply the guidelines very rigidly.
So if the intent is pornographic, you will certainly take that into account. Did you find the movie pornographic?
Mr Clark—Do you mean 9 Songs?
Mr Clark—If I can go to the same estimates, I replied to Senator Harradine that the guidelines do not actually use the word ‘pornographic’ and nor does the code. Sexually explicit intent would place the film into an X classification, which is what the board did.
Senator McGAURAN—I am only quoting you back. You said:
If the intent is purely pornographic I am sure that the board will apply the guidelines very rigidly.
Mr Clark—And then I clarified that. I said that it does not use the word ‘pornographic’ in any of the instruments or tools that the board uses. That word does not appear. So the board is classifying it X in the sense that it is a special classification with sexually explicit material in it. That word is not used anywhere in the classification system.
Senator McGAURAN—So you do not take that into account.
Mr Clark—No, the X classification says:
... This classification category applies only to films. This classification is a special and legally restricted category which contains only sexually explicit material. That is material which contains real depictions of actual sexual intercourse and other sexual activity between consenting adults.
Senator McGAURAN—Aren’t you just playing with words? You have told us how you keep in touch with the community, and that is very good—and that, by the way, was a result of the movie Salo. It made many changes to the review board—although I despair that they are all unwinding now. The community, whom you are meant to refer to from time to time, know what pornographic means. They know the line, albeit that it is different for each person—there is a line and you know it when you see it.
Senator McGAURAN—I have not finished.
Mr Clark—I apologise.
Senator McGAURAN—It is my turn! I know you are just playing with words. You are hiding behind the fact that it is not classified, but in real life you have to take that into account, because every criticism that I have picked up—and critics are well known for their liberal views when reviewing films at the best of times—
Senator Ellison—If we could just get to the nub of the question.
CHAIR—We are very pressed for time, Senator McGauran.
Senator McGAURAN—In every critic’s review that I pick up, they use that term. You are trying to hide behind ‘sexually explicit’, but go out to the community and put those words to them and they would not know what you meant. Say ‘pornographic’ and they are with you. Every critic calls it pornographic or question whether or not it is. I have all the critics’ reviews here, from the Age and the Financial Review, claiming it is just pornographic and should not be exhibited. The Australian says it is pornographic—
CHAIR—Your actual question, Senator McGauran?
Senator McGAURAN—I have to give this a bit of a backdrop. The Herald-Sun asks is it not pornographic—
CHAIR—We are getting your drift. What is your actual question?
Senator McGAURAN—and there is a feature in the Age. So that is the term they use. If you want to stay in touch with the community, know what that word means and where that line is drawn. You use one term; the public identify with another, including the critics—and, may I add, the review board. The review board thought it was pornographic, ‘mildly pornographic’. But if it is pornographic it should not be shown. You use the term ‘sexually explicit’; we use ‘pornographic’.
Mr Clark—If I take the common word—and I agree with you, ‘porn’ is the more frequently used descriptor—you are perfectly right: yes, that is the case. I am not playing with words. They are the actual words that we have to use in coming to classification decisions. The board, if you like, formed a view that 9 Songs should be classified X because it contains sexually explicit material which, yes, the press are commonly referring to as porn. They are not using that word but the words that are here. They are not words to hide behind but words that they are required to have regard to. That is the classification system. The Classification Review Board looked at that and considered that the amount of sex in the film could be accommodated by an R rating. The reasons for their decision on 9 Songs are in their report. If they choose to use the word that is commonly used, there is nothing wrong with that, but it is not a word that appears in the classification system.
Senator McGAURAN—In short, you did not believe the movie was pornographic—
Mr Clark—I do not express personal views about this.
Senator McGAURAN—The board did not believe it was pornographic, yet they would not classify the movie. The review board thought it was pornographic, yet they classified the movie. What a muddle!
Mr Clark—If I apply the word ‘pornographic’ then obviously that is consistent with the board coming to an X decision. The reasons for the Classification Review Board’s decision are available. That is their justification for coming to a decision which shows the review board and the classification system working. A lot of people will disagree with that decision, but that is the decision that the review board have made. I would also add that there is a lot of material that is simulated sex which is classified R. It is not real but it is simulated sex, which is classified R—and that could also be described as pornographic.
Senator McGAURAN—You have to take into account, according to the classification, the prolonged nature of any offending scene or any scene at all. There are two questions here. The movie is a cheap 70 minutes long and 35 minutes of it, according to the critics, is sex. The real offending scene breaks a record, being the most prolonged of its kind. In the past you have always relied on a fleeting scene—you have used the word ‘fleeting’ quite often, or ‘not prolonged’, in any other reports you have on films. But here we have got a record: it is quite a long scene, with more than half the movie itself being one big sex scene.
What is the question? There has been no other movie with such a prolonged, intimate sex scene. Firstly, I am trying to establish that this movie is groundbreaking. And, secondly, where do you draw the line between ‘fleeting’ and ‘prolonged’, when half the movie—35 minutes—is taken up with it?
Mr Clark—The actual sex scenes in the film do not add up to 35 minutes. I believe that was a misreport in the press. There are two longer scenes of actual sex. There is a lot of what is, for all intents and purposes, simulated sex. There are two longer scenes of actual sex—one of approximately one minute and one of approximately two minutes—and several briefer depictions of actual sex identified in the review board’s reasons for its decision. It is not the 30 minutes described in the media, but there are those particular scenes that have been described. There is quite a lot of other simulated sexual activity but not detailed, explicit sexual activity.
Senator McGAURAN—But the true offending scene is not fleeting, is it? For the first time it is not.
Mr Clark—That would be the one of approximately one minute and one of approximately two minutes.
CHAIR—Senator McGauran, in light of the circumstances in which the committee finds itself, is it possible for you to put your further questions on notice, as the minister suggested?
Senator McGAURAN—No, but I only have two more—
Senator McGAURAN—providing I do not get sidetracked. Thank you for your patience. Another criterion you have to take into account is the type of audience you expect to see this movie. That is what the review board took into account too, as they said. In rejecting this movie, from your level, what type of audience did you think would be seeing this movie?
Mr Clark—The film is restricted to adults over the age of 18. The film would probably have a limited appeal in terms of the broader community. I would not want to make a judgment about those members of the community who may or may not choose to see the film, but I think that the amount of time it has been on exhibition would indicate that not a vast number in the community have taken the opportunity to view the film.
Senator McGAURAN—You cannot speak for the review board, can you.
Senator McGAURAN—Would your board take into account where the movie is going to be shown—in which theatres?
Mr Clark—The board takes that into account in coming to a decision. In my board’s decision, it was X18+, which means it would not be shown in cinemas; it would only be available from the ACT and the Northern Territory.
Senator McGAURAN—The review board took that criterion into account too. The movie is showing in one place in Collins Street, which is pretty mainstream, and on Fitzroy Street, St Kilda—mainstream again.
Mr Clark—That reflects the fact that the film now has an R18+ rating and it is quite permissible for it to be shown in public exhibition cinemas. But, as I say, from the amount of time that the film has been on the screens, not a vast proportion of the Australian adult community has actually gone to see the film.
Senator McGAURAN—Other than that it is an R rated movie for adults over 18, if you take into account where it is showing—which theatres it is being shown in—it is being shown in mainstream theatres.
Mr Clark—That is correct. That is consistent with the rating.
Senator McGAURAN—Heaven knows what the review board was ever taking into account. If it is being shown in the mainstream theatres, they are taking nothing into account, other than the rating.
Mr Clark—The rating is consistent with the ratings in other jurisdictions around the world. The film has been shown in similar circumstances in many places.
Senator McGAURAN—Of course, for someone who does not represent the review board, you do a good job defending them. This is my last question. No, I have two more.
Senator McGAURAN—All right—I will make it a big one.
CHAIR—How will I tell the difference?
Senator McGAURAN—Mr Clark, you released the movie Irreversible with the offending scene in it and you issued it on artistic merit.
Senator McGAURAN—You did not?
Mr Clark—That is one of many criteria the board applies, so it was not a decision made solely on artistic merit. That is one of the things the board must consider in coming to a decision every time it makes a decision.
Senator McGAURAN—I put it to you that it was the overriding one. It was mutually exclusive to all the others. I was establishing in my earlier questioning about the meaning and all those other factors. They were so black and white you had to overcome them with some esoteric or subjective judgment. That was artistic merit, which has now become the overriding factor in the classification system. However, with Nine Songs they are a lot clearer. They admit it is pornographic—they admit this and that and everything else I have been speaking about—but it has artistic merit, which overrides all the classifications. So aren’t you just cherry-picking now? There is no holistic look at the classification system. In fact, you may as well get rid of the detailed classification system because you are now just cherry-picking to the mutual exclusion of everything else, and artistic merit is coming to the forefront here. I also put it to you—and it is quite obvious—that you and the higher board run to this artistic merit excuse every time you are caught with your backs to the wall. It has become the catch-cry to diminish the existing classification. I put it to you that Reid v Director-General of Social Services, Administrative Appeals Tribunal, 1981, states that in exercising the discretion under the relevant section of the act:
... the decision-maker must have regard to whether, by exercising the discretion in a particular case, he will be achieving or frustrating ends or objects which are conformable with the scope and purpose of the Social Services Act 1947 ...
The act specifies the code and classification—words such as ‘demeaning’, ‘exploitation’ et cetera.
Senator McGAURAN—You do not take them into account; you take artistic merit into account.
CHAIR—Senator McGauran, I am going to ask Mr Clark for a response and that will conclude his part of the examination.
Senator McGAURAN—Quite frankly, you would not hold up an Administrative Appeals Tribunal—
Senator Ellison—Madam Chair, we need the question, not the statement. If we can have the question, and if there are a series of them perhaps we can take them on notice—
CHAIR—And examine the Hansard and assess what the questions were.
Senator Ellison—and Mr Clark can have an opportunity to get back in detail to Senator McGauran.
CHAIR—Would the minister’s suggestion be satisfactory, Senator McGauran?
Mr Clark—I think the simple answer is no.
CHAIR—Mr Clark, would you assist the committee by examining the Hansard and extracting the questions from Senator McGauran’s statement and then responding to them?
Mr Clark—I will assist the committee—
CHAIR—Thank you very much. Senator McGauran, will the minister’s suggestion assist you? Thank you. Mr Clark and Mr Hunt, we appreciate your assistance to the committee this evening. [9.19 pm]
A-G concerned rating guidelines are being ignored
The Honourable Michael Atkinson MP
June 16, 2005
The Attorney-General Michael Atkinson says it’s time for the national film classification system to be changed to correspond to the intention of governments and to what the public are being told.
Mr Atkinson’s call comes at the end of the Adelaide screenings of a movie called 9 SONGS, a film directed by Michael Winterbottom that is mainly made up of scenes of explicit real sex between two actors.
The movie includes a scene of actual ejaculation and was originally given an X18+ rating by the Office of Film and Literature Classification.
However, a five-member panel of the Classification Review Board decided, in a 3-to-2 majority decision, that the film be classified as R18+, giving it a wider audience.
"This is the latest in a string of decisions by the Board over the last year or two that fly in the face of the ratings criteria," says Mr Atkinson.
"The movies 'Romance', 'Irreversible' and 'Anatomy of Hell' all contained depictions of actual sex and were allowed to be seen in mainstream cinemas.
"The Board’s own press release about '9 Songs’'says the guidelines for R18+ films state that sexual activity may be realistically simulated – the general rule being simulation yes – the real thing no – yet the guidelines appear to be worth very little once artistic merit is put up as a counter view.
"I believe that this latest decision to downgrade the rating for ‘9 Songs’ really is a new stage in de-sensitising cinema-goers and I feel compelled to take action.
“The ruling goes against the guidelines, against precedent and, quite frankly, it’s perverse.
Mr Atkinson has written to the Federal Attorney-General, Philip Ruddock, outlining his complaints and urging further clarification of the guidelines – especially when it comes to the R18+ category.
"If Australia’s Censorship Ministers want to permit actual sexual activity in R-rated movies, then the guidelines should say so.
“The system should reflect the public’s standards of decency and the rules should be as black and white as possible .
"Mr Atkinson decided to speak out after ‘9 Songs’ Adelaide season closed, so as to avoid giving the film’s promoters a public controversy that would have attracted more viewers.
John Murphy was a Federal Labor MP, and a mouthpiece of the religious-right. In Parliament in August 2005, he questioned the rating awarded to 9 SONGS.
Date: 09 August, 2005
Database: House Hansard
Questioner: Murphy, John, MP (Lowe, ALP, Opposition) Responder: Ruddock, Philip, MP (Berowra, Attorney-General, LP)
Context: Questions in Writing
Main Committee: No
Question Mr Murphy (Lowe) asked the Attorney-General, in writing, on 23 May 2005:
(1) Can he confirm that the Classification Review Board has reviewed the decision of the Classification Board in respect of the film 9 Songs from X18+ to R18+, permitting explicit sex scenes to be viewed in mainstream theatres throughout Australia, as reported in the article titled ‘Uncomfortable position’ in The Australian on 4 May 2005; if so, can he explain the basis of this classification decision.
(2) Does the classification of 9 Songs as R18+ conform to the standards for the R18+ classification in the (a) Classification Code and (b) Classification Guidelines.
(3) Do all films depicting explicit sex scenes subject to assessment by the Office of Film and Literature Classification now fall within the R18+ category.
(4) What action will he take to prevent explicit sex scenes being screened in mainstream theatres.
(5) What is the current composition of the Classification Review Board.
(6) What is the statutory number of positions permitted on the (a) Classification Board and (b) Classification Review Board.
(7) Are churches, young Australians, elderly Australians and other persons represented on the (a) Classification Board and (b) Classification Review Board.
(8) What is the background of each of the eight members of the Classification Board and in which industries have they worked.
(9) Will he take action to broaden the representation on the (a) Classification Board and (b) Classification Review Board so that churches, consumer groups, the young, older Australians and other persons other than those currently on the board, are represented; if so, what; if not; why not.
Answer Mr Ruddock (Berowra—Attorney-General) —The answer to the honourable member’s question is as follows:
(1) On 17 January 2005 the Classification Review Board, in a 3:2 majority decision, classified the film 9 Songs R18+ with the consumer advice ‘Actual sex, high-level sex scenes’. In the Review Board’s majority opinion, the film warrants an R18+ classification because, while some scenes may offend some sections of the adult community, the actual sex scenes are justified by the context, narrative, tone and artistic merit. In the view of the Review Board, “while the overall impact of the material was ‘high’, there was not sufficient strength in the film to cause a higher level of impact for any individual scene or cumulatively. Scenes were dealt with in a realistic yet restrained manner that was not gratuitous or exploitative. Each scene was justified by the context and the overall theme of the film, the couple’s sexual and emotional relationship”.
(4) Classification decisions are made by the Classification Board and Classification Review Board both of which are statutory bodies, deliberately independent from the Government. It is not the role of Government to make classification decisions. Nor is it appropriate for me to intervene to prevent classified films from being publicly exhibited. Additionally, the National Classification Scheme provides for classification categories that are legally restricted. Sexually explicit material classified X is restricted to adults and is only available for sale or hire in the Northern Territory and the ACT. Material classified R18+ is legally restricted to adults. Children under 18 are not permitted to view R18+ films in cinemas, or rent or buy them on video or DVD.
(5) The current composition of the Classification Review Board is: Maureen Shelley (Convenor); Trevor Griffin (Deputy Convenor); Rob Shilkin (Review Board Member), Gillian Groom (Review Board Member), Kathryn Smith (Review Board Member) and Anthony Hetrih (Review Board Member).
(6) The Classification (Publications, Films and Computer Games) Act 1995 (the Act) states that the maximum number of positions permitted on the Classification Board is not more than 20. In relation to the Classification Review Board, the Act provides that the Board is to consist of a Convenor, Deputy Convenor, and at least three, but not more than eight other members.
(7) The Act requires that, in appointing members, regard is had to the desirability of ensuring that the membership of the Boards is broadly representative of the Australian community. It also requires the Attorney-General to consult all States and Territories regarding proposed appointments. Biographical information regarding the members of the Boards is published on the Office of Film and Literature Classification website (www.oflc.gov.au) and in the annual reports of the Boards. As this information indicates, members are drawn from diverse geographic areas, are of different ages and gender and have a diversity of life experiences and qualifications.
(8) As mentioned above, details on the individual members of the Classification Board can be found in the OFLC Annual Report and also on the OFLC website. The current members’ educational and professional backgrounds span a diverse range of fields including local government, teaching, environmental health, building surveying, law, administration, retail, media and communications, film production, tourism, defence, research, community radio, employment and training, journalism and accounting.
(9) The Boards are comprised of individuals who collectively are broadly representative of the Australian community. The Act provides the greatest opportunity to achieve this by not proscribing or limiting who may be appointed to the Boards. Members of both Boards are appointed following an open merit-based recruitment and short-listing process. Whilst having regard to the desirability of recruiting a broadly representative Board (as required under the Act), the rigorous selection process also ensures that highly competent people with the practical skills and personal attributes to enable them to undertake the duties of Board members are appointed. Appointments to the Boards are generally for three to four years and membership cannot exceed seven years in total. The regular membership changes ensure that new individuals from different backgrounds are joining the Boards on a routine basis.
Accent released 9 SONGS to DVD on August 3, 2005.
There were some questions asked as to why Accent's DVD did not contain any extras. According to Melon Farmers, the UK disc does not contain the 18m extra of rough-cut footage, 12m of which was hardcore. The BBFC gave the disc an R18 (equivalent to our X18+), so the distributor dropped the extra. The same problem would have happened in Australia, so Accent released a bare bones disc.
The following statement was posted on Michael D's R4 DVD Info Page following a review of the disc.
9 Songs DVD Review - George Papadopoulos
Your recent DVD review of our film, 9 SONGS, bemoaned the fact that our R4 DVD release of the film featured no extra features as opposed to the UK disc. Being the film's distributor, I thought it best to explain why we did not include any extra features.
The reason we did not include any extras is that when we appealed the OFLC X18+ rating to downgrade it to an R18+ rating, the classification was applicable to both the theatrical and DVD release. If we had included any extras whatsoever apart from the actual feature, we would have had to get the film re-classified which would have opened the door for religious right groups such as the Australian Family Association and the Festival of Light to appeal the decision which would have unnecessarily delayed the DVD release, more legal costs in defending the film and the possibility of getting the DVD banned. As a result, the film has done very well on DVD so we may actually do another release next year with the extra features but this will depend on potential sales for the new version. There is also extra footage that never made the film so we may include those as well.
Accent Film Entertainment always strives to release the best possible version of all our films including any extra features as evidenced with some of other releases including Fritz Lang's M, Murnau's SUNRISE, Ingmar Bergman's FANNY & ALEXANDER, Gaspar Noe's IRREVERSIBLE etc. However, sometimes due to circumstances beyond our control such as above, we cannot include the extra features that we would like.
Accent Film Entertainment
Following several responses to the above statement, George Papadopoulos clarified some of his points with this follow up post at Michael D's site.
Greg is correct in that adding any extras apart from the feature will automatically require reclassification. We thought it was better to release the DVD rather than risk the film getting banned and thus never getting a release. After a successful DVD release, we may opt to release a special edition with extras next year because even if it fails, at least the DVD was released in the first place.
I was aware that the UK DVD was going to have a deleted scenes section but decided against it as it contained more hardcore sex scenes. The problem was that they were only sex scenes and taken out of context like that would have opened the Pandora's Box and the film would certainly get banned. Our whole defence of the film at the Classification Review Board hearing was that the film was a work of art from a major filmmaker and the sex scenes were quite lovingly portrayed and not pornographic at all. Taking the sex scenes out of context from the film would have devalued the film as a work of art. Having said that, we will evaluate any extra features available from the producers before we plan any future re-release of the film.
Thanks again for your interest.
The South Australian Classification Council is a body with the power to review ratings in that State. Two complaints were received regarding the R18+ rated 9 SONGS. These came from the Attorney General Michael Atkinson, and the Festival of Light.
In August 2005, the SACC increased the R18+ rating back up to X18+. It is illegal to sell or rent X18+ films in South Australia, but legal to purchase and possess them from other States. This means that South Australians are not able to rent the DVD from their local video store, but are able to purchase or rent it by mail order from other States.
South Australian Classification Council
Classification of the film '9 Songs' by Michael Winterbottom
The Council received two complaints, one from an individual and one from the Festival of Light, about this film. It was argued that a film containing many scenes of actual sexual intercourse could not be accommodated in the R18+ category. It was argued that if this content is permissible in R18+, then the guidelines for that category have become meaningless.
One complainant also expressed concern that films of actual sexual intercourse are tantamount to prostitution and may be psychologically damaging to the actors. Concern was also expressed that once the film is released on DVD, it will inevitably become available to children.
The Council decided to view the film, which it did on 11 August, 2005.
The film deals with the relationship between the lovers Matt and Lisa. It consists of scenes from their relationship alternated with concert performance scenes and scenes of Matt's work as a glaciologist.
In Australia, the film has been classified R18+ by the Review Board, having been originally classified X18+ by the Classification Board. A minority of the Review Board would have classified it RC.
In New Zealand, the film was classified as 'Objectionable except if the availability of the publication is restricted to persons who have attained the age of 18 years.'
In the United Kingdom, the film is classified 18, which means that it can be screened and sold only to adults. This is equivalent to the R18+ category in Australia. The applicable guidelines for the 18 category provide that although adults should be free to choose their own entertainment, an exception is likely for 'more explicit images of sexual activity unless they can be exceptionally justified by context and the work is not a 'sex work''. The latter fall into the category R18 which is primarily for explicit works of consenting sex between adults. Such items are only available in licensed cinemas and sex shops.
In the United States, the Motion Picture Association of America has not rated the film.
The Council is required by law to apply the principles given by s. 19 of the Act, and to apply the Code and the guidelines. Sections 18 and 19 provide:
18 Classification of publications, films and games in accordance with national code and guidelines Publications, films and computer games are to be classified by the Council or the Minister in accordance with the National Classification Code and the national classification guidelines.
19 Matters to be considered in classification The matters to be taken into account by the Council or the Minister in making a decision on the classification of a publication, film or computer game 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, film or game; and
(c) the general character of the publication, film or 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 Classification Code incorporates four principles:
Classification decisions are to give effect, as far as possible, 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
(ii) the portrayal of persons in a demeaning manner.
The Code relevantly specifies that:
Films that depict, express or otherwise deal with matters of sex in such a way as to offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified, will be refused classification.
Films, other than RC films, that contain real depictions of actual sexual activity between consenting adults in which there is no violence, sexual violence, sexualised violence, coercion, sexually assaultative language, or fetishes or depictions which purposefully demean anyone involved in that activity for the enjoyment of viewers, in a way that is likely to cause offence to a reasonable adult, and are unsuitable for a minor to see, will be X18+.
Films that are neither RC nor X18+ but are unsuitable for a minor to see will be R18+.
The Guidelines expound the concepts of impact and context and stipulate the content of each category.
Public standards of morality, decency and propriety
South Australian law currently prohibits the sale (including hire) of X18+ films (penalty $10 000). This prohibition is evidence that South Australian community standards do not presently accommodate films that extensively depict consenting adult sexual activity, even though they include no violence or offensive fetishes and even though they are bought by consenting adults for viewing in private
This film, which was screened at the Cannes Film Festival, is a serious artistic work. The director is well-known for other works such as Welcome to Sarajevo, Butterfly Kiss and Wonderland. The cinematography is of high quality.
The film is not of a legal, medical or scientific character such as to justify sexual content that would otherwise be impermissible.
Likely or intended audience
The film has recently been released on DVD. It is meant for an adult audience. It has been screened to an adult audience in South Australian cinemas under its current R18+ rating. In South Australia, a minor is not permitted to see an R18+ film in a cinema, even with parental permission, but a parent or guardian of a minor can lawfully exhibit an R18+ film to the minor at home (s. 32, s. 34(2)).
The first principle of the Code is that adults should be able to see what they want. This is a principle rather than an absolute right, because the law restricts the availability of some material even to consenting adults (RC or X18+ films). Rather, the principle implies that, in classifying, the Council should start from the position that adults should be able to view a film, rather than that they should not. Legal restrictions on adult viewing should only be imposed in keeping with the law and the guidelines.
The Code also requires that minors, and people who do not want the material, should be protected. The R18+ classification protects minors from seeing the material unless in a private place with the permission of a parent or guardian. Other than that, an R18+ DVD should not be in the possession of a minor. The consumer advice attached by the Review Board, warning of 'Actual sex, high-level sex scenes' should suffice to protect people who do not wish to encounter such material.
The community is concerned about violence, especially sexual violence, and demeaning portrayals. The relationship between Matt and Lisa is consensual and is not portrayed as violent or demeaning.
The guidelines indicate that, in general, films that contain depictions of actual sexual activity will be classifiable higher than R18+. Where they are non-violent depictions of consenting activity, they may be classifiable X18+. Otherwise, the only remaining category is RC.
The contentious aspects of the film are coarse language, nudity, sex and drug use. Of these, the Council thought that neither the coarse language nor the drug use would be likely to require a classification higher than R18+. The Council did not judge the film to be suitable for minors and so did not consider that the film could be classified lower than R18+. The classification issue then is whether the nudity and sexual depictions in the film can be accommodated in R18+ or require a higher classification.
A substantial part of the film consists of scenes of actual sexual intercourse between consenting adults. These scenes are an important part the film, as they contain most of the information we are given about the relationship between Matt and Lisa, which is the sole subject of the film. Indeed, the director indicated in an interview with The Guardian newspaper that his purpose in making the film was to overcome the prudishness of cinema by going to the extreme of showing a relationship only through sex.The sexual depictions are direct rather than incidental. The scenes are frequent, detailed and explicit. They could not be described as fleeting or discreet. The relationship between the protagonists gives the scenes a context, but not so as to reduce the impact of the scenes.
High-impact material can be accommodated in the R18+ category but there are restrictions on the depiction of actual sexual activity in this category. The R18+ guideline says that 'Sexual activity may be realistically simulated. The general rule is 'simulation, yes - the real thing, no''. These scenes are not simulations so, ordinarily, the film would not be classified R. A general rule, however, implies the possibility of exceptions. The extent of exceptions would be controlled by the more general principles of the Code and the Act. Occasionally, depictions of actual sexual activity have been permitted in this category, for instance, Romance, Intimacy and Irreversible.
The Council considered whether the film could be accommodated in the R18+ category by making an exception from the general rule. It concluded, however, that these scenes appear to go beyond what has hitherto appeared in the R18+ category and to include the sort of material most often found in the X18+ category. This is a special category not defined by an impact test but by its content. It contains 'real depictions of actual sexual intercourse and other sexual activity between consenting adults'. The Council accepted that the film may have artistic merit. Nonetheless, the majority of the Council considered that the film could not be accommodated in the R18+ category. If this content is accommodated within the R18+ category, then many films that are now classified X18+ might claim to be classifiable R18+. The public has, through the democratic process, decided to make the sale of X18+ films illegal in South Australia. That sets a standard of public decency which excludes this type of material. It is not the role of the Council to challenge community standards but to apply them as they have been set.
 Books deal explicitly with sex, as they do with any other subject. Cinema has been extremely conservative and prudish. I wanted to go to the opposite extreme and show a relationship only through sex. Part of the point of making the film was to say, 'What's wrong with showing sex?'" Interview with The Guardian (Guardian, May 17, 2004)
 The Guardian newspaper in the United Kingdom described the film as ‘the most sexually explicit film in the history of mainstream British cinema’ (Guardian, May 17, 2004).
The Council, by majority, classified the film X18+.
Sorry, this film is banned
The Adelaide Advertiser, August 20. 2005
9 Songs, which has been shown in cinemas in Adelaide and is still available on video shop shelves, was officially banned yesterday from being screened, sold or hired in the state.
South Australia is the only Australian state with the power to ban movies within its borders.
The Advertiser understands the last film to be banned exclusively in this state was Salo, in 1994.
George Papadopoulos, general manager of the film's distributor, Accent Films, said he was shocked by the South Australian Classification Council's 3-2 ruling to ban the film.
"It's remarkable, it's ridiculous, I'm astounded," Mr Papadopoulos said.
"No countries have banned it, not even in Ireland which is very conservative."
SACC chairwoman Julie Redman said; "The council has to apply community standards. In South Australia, as in other states, it is against the law to screen or sell films of actual sexual activity. That is a standard that the South Australian public has set through the laws it has made."
SA goes it alone with 9 Songs DVD ban
7 News, August 20, 2005
South Australian Attorney-General Michael Atkinson, a regular campaigner on censorship issues, labelled the OFLC's change of mind perverse and complained to the federal government.
On Friday the South Australian Classification Council said that following complaints, it had reviewed 9 Songs ahead of its release on DVD.
As a result it had changed the rating to X18+, which meant it could not be screened, sold or hired in SA.
Council chairwoman Julie Redman said a substantial part of the film was footage of actual sexual activity.
"In South Australia it is against the law to screen or sell films of actual sexual activity," Ms Redman said."
"9 Songs has some artistic value, but its content most closely matches the X18+ category."
Classification Board & Classification Review Board
Annual Report 2004-2005
The Classification Board is highly experienced and professional in applying the decision-making tools provided under the national classification scheme and takes its responsibility to classify material for the benefit of consumers extremely seriously. As well as other principles, the Classification Board is required to apply the principle that adults should be able to hear, see and view what they want. It is acknowledged that there is a broad spectrum of views in the community and I am confident that they are all taken into account in decision-making.
The Classification Board is established to make decisions at arms length from Governments and it is essential that the independence of the Classification Board should not be compromised in any way.
While Australians are very supportive of the national classification scheme, the diverse nature of our society means that some classification decisions will not always satisfy all people. Each reporting period there are a small number of products that create controversy.
During the reporting period there continued to be a low number of complaints. Specifically, 9,294 classification decisions were made during the reporting period and only 126 individual titles of films, computer games and publications were complained about.
Some of the titles that generated more letters and media commentary included the R18+ classified films Irreversible, Anatomie de L’enfer (Anatomy of Hell) and 9 Songs. It is inevitable that some films classified R18+ will be offensive to some sections of the adult community; however, there are appropriate safeguards in place to ensure that children are not exposed to these films. Few complaints were received by consumers who viewed these films, although a significant number were received from those who apparently had not.
Another film that attracted attention was Birth (MA15+). Media and other reports surrounding this film often contained misleading information on the actual content of the film triggering a significant level of complaints. No complaints were received from consumers who had viewed the film.
Classification Board & Classification Review Board
Annual Report 2004-2005
Classification Review Board
The year’s controversies have centred on the computer game Manhunt (mainly in Western Australia), Anatomie de L’enfer (Anatomy of Hell) and 9 Songs (mainly in South Australia). Actual sex is depicted in Anatomie de L’enfer (Anatomy of Hell) (fleetingly) and in 9 Songs (more extensively).
Whilst the Guidelines for the Classification of Films and Computer Games state that the general rule is ‘simulation, yes – the real thing, no’ this is not always a simple matter to determine when faced with a filmic depiction. Generally, the Classification Review Board only determines that ‘actual sex’ is depicted when it sees actual penetration (of some kind), actual manipulation of genitalia or actual climax. This is generally simpler to determine in scenes involving men rather than those that centre on women.
Consequently, what many people would describe as ‘actual sex’ would not be classified as such by the Classification Review Board. This is apparent in 9 Songs where it has been stated in the media that half of the film is taken up with actual sex (about 30 minutes), whereas the Classification Review Board noted about five minutes of ‘actual sex’.
9 Songs had been classified X18+ by the Classification Board and this was reduced to R18+ by the Classification Review Board, in a 3-2 majority decision. This decision caused concern amongst some sectors of the Australian community, who saw the X18+ classification as a means, according to media reports, of ‘banning the film to the general public’. The Classification Review Board accepted the applicant’s submission that the film could not be classified X18+ because of what the Classification Review Board determined were some scenes of bondage. Some concern was expressed that the Classification Board and the Classification Review Board reached different conclusions in relation to the same material. However, the potential for different decisions would have been acknowledged by the Parliament when establishing a review mechanism for classification matters.
Some groups have argued that there should be no actual sex at all permitted in R18+ films. However, under the classification guidelines discretion is given to the Classification Board and the Classification Review Board in this regard. The Classification Review Board considers all the relevant factors in its decision-making very carefully before classifying a film that contains actual sex.
Classification Board & Classification Review Board
Annual Report 2004-2005
Films – public exhibition – complaints
The OFLC received five complaints about the X18+ classification of the film 9 Songs compared with 133 letters of support for the X18+ classification. Following review by the Classification Review Board, the film was classified R18+. Twelve complaints were received about the reduced classification. Further details on complaints about Classification Review Board decisions are included in the Classification Review Board Annual Report on page 94.
Classification Board & Classification Review Board
Annual Report 2004-2005
Classification Review Board
Of the ministerials processed on behalf of the Attorney-General, 48 ministerial complaints specifically referred to the Classification Review Board’s R18+ classification of the film 9 Songs.
Classification Board & Classification Review Board
ANNUAL REPORT 2005–2006
The OFLC processed 210 items of ministerial correspondence, including
letters, emails and facsimiles, referred by the Attorney-General in the
reporting period. This compares with 197 items of ministerial correspondence
during 2004.05. The main issues raised in the correspondence were:
The Classification Review Board's R 18+ classification decision for the film 9 Songs (40 items)
The OFLC received two complaints which specifically addressed the
Classification Review Board’s R 18+ decision for the film 9 Songs.
Of the ministerial correspondence processed on behalf of the Attorney-General, 40 ministerial complaints specifically referred to the Classification Review Board’s R 18+ classification of the film 9 Songs.
In March 2011, Roslyn Phillips from Family Voice Australia (aka The Festival of Light) spoke about their 9 SONGS appeal during an inquiry into the Classification system.
LEGAL AND CONSTITUTIONAL AFFAIRS REFERENCES
Reference: Australian film and literature classification scheme
Friday, 25 March 2011
Mrs Roslyn Helen Phillips,
National Research Officer,
Family Voice Australia
Mrs Phillips—I would like to add something else which we did not mention in our submission. On the discussion in terms of reference G about actual sex in R18+ films, we noted the gradual category creep of the Classification Board’s gradually allowing more and more actual sex into films, and not classifying them X or RC but simply allowing them as R18+. We were very concerned about Nine songs which was classified back in January 2005 by the Classification Review Board as R18+. We took it to the South Australian Classification Council which looked at it quite separately and independently. It should be noted that they agreed with us. In August 2005 the South Australian Classification Council decided to classify Nine songs in South Australia as X18+ because in its view it did contravene the guidelines for R18+.
CHAIR—That is interesting. What about other states, or was it just South Australia?
Mrs Phillips—I think South Australia is unique in that it does have a classification council. When there are substantiated complaints, it will have another look at Commonwealth decisions. I am not sure that any other state has that facility.
CHAIR—This is part of the discussion we are having with at least some witnesses, and in the deliberations of the committee, because some states have different approaches to others, as do territories, obviously, as we have just been talking about with the X18+ films. Thank you very much for drawing that to our attention.
In June 2014, Accent Film Entertainment released 9 SONGS on Blu-ray.