There is a report that the West Australian customs service confiscated a copy of BAISE-MOI in mid-2001. This was before it was passed by the OFLC, and later banned by the Review Board.
In October 2001, BAISE MOI was passed with an R18+ (Strong Sexual Violence, High level violence, Actual sex and Adult themes) rating. Although it contained real sex, it could be passed because of the precedent that had been set in 2000 with ROMANCE (1999).
The Classification Board report showed a majority found the sexually explicit content could be accommodated with an R18+.
However, a minority was of the view that:
...this film warrants Refused Classification for gratuitous and detailed depictions of sexual violence which cannot be accommodated at an R18+ classification. In the minority view, their cumulative impact is considered to be excessive and go beyond what the minority believes to be allowable at R18+.
Here is the letter that Fred Nile sent to the Attorney-general Daryl Williams urging him to have a review of the R-rating.
Reclassification of hardcore pornographic film 'Baise-Moi'
Friday, 12 April 2002
The Hon Daryl Williams MHR
House of Representatives
Canberra ACT 2600
I bring to your urgent attention for immediate action a serious breech of the Federal classification guidelines.
The Office of Film and Literature Classification has classified the extremely violent and explicit pornographic film 'Baise-Moi' as R18+, so that anyone 18 years or over can view it.
I call on you to direct the Film Review Board to urgently review this R18+ classification as the film will apparently be released in Melbourne on 25th April 2002 which is Anzac Day to deliberately create controversy for promotional purposes.
However if it is released on 25th April it will be the Federal Government which will be strongly criticised for allowing this to happen.
This film whose title literally means in English "fuck me" was produced in France in 2001 yet it is banned in France inspite of France's liberal outlook! The film is also totally banned in over 20 other countries (SMH 15/3/02).
The film's overseas distributors, Filmfixx, have issued the following warning about 'Baise-Moi': "This film contains prolonged sex scenes of an extremely explicit nature and scenes of graphic violence which some viewers may find shocking and disturbing."
Reviewer George O. Singleton says this warning must be taken seriously, and "the word 'may' should be replaced with 'will'". (See http://www.reelmoviecritic.com/id1088.htm)
Singleton describes the plot as: "Two women go on a sex and killing spree when one commits a murder after being raped and the other is depressed because her best friend is killed."
Other reviewers comment that the plot line is "very thin" or "dull", implying that it merely provides an excuse for the prolonged sex scenes of an extremely explicit nature and scenes of shocking, graphic violence. There is no redeeming "literary, artistic or educational merit".
Since 'Baise-Moi' contains prolonged explicit sex scenes, it would normally be classified "X" (and be available only in the Northern Territory and the ACT). However 'Baise-Moi' also contains explicit, graphic sexual violence including rape, which is prohibited from the "X" category - so one would expect this film to be refused classification.
The Federal Film Classification Guidelines state that in films rated R, "sexual violence may only be implied and should not be detailed; depictions must not be frequent, gratuitous or exploitative..."
The Guidelines state that in films rated X, there shall be "no depiction of violence, sexual violence, sexualised violence or coercion..."
The Guidelines say that films will be classified RC (Refused Classification - ie banned) if they contain "gratuitous, exploitative or offensive depictions of violence with a very high degree of impact or which are excessively frequent, prolonged or detailed; sexual violence;".
The reasons given by the OFLC for its classification decisions can be downloaded by searching the Classification Database on the OFLC website. They say of 'Baise-Moi': "R18+ (Strong sexual violence, high level violence, actual sex, adult themes)". These reasons directly contravene the R18+ guidelines quoted above.
In view of the shortage of time, you may have to directly intervene as Attorney-General to prevent the film being screened on 25th April 2002 until it is reclassified.
(Rev) Fred Nile MLC
Hon National President
Christian Democratic Party.
This article appeared in the Sydney Morning Herald the day after Fred Nile had written his letter to the Attorney-General. Already it is clear that the Christian moral police are alert, with Brian Harradine already on the case.
Reality rules on screen
smh.com.au, April 13, 2002
The federal Attorney-General, Daryl Williams, has raised no objections to the film's classification, which is accompanied by a warning of "strong sexual violence, high-level violence, actual sex and adult themes".
But the independent senator Brian Harradine said the Government had failed to take action because the film was classified on October 4, when the Government was in election mode.
Senator Harradine said that, although he had not seen Baise-Moi, the film was inappropriate for an R-rating because of its strong sexual violence and actual sex. He called on Mr Williams to order a review of the film's classification under special circumstances beyond the standard 30-day review deadline.
"He should have been appealing the decision [but instead] he was spouting Coalition policy [that the] Government would ensure the classification system appropriately reflects community standards. I am sure the public would be very, very concerned."
The OFLC's director, Des Clark, said it was correct that, on a general interpretation, simulated sex was permissible under an R-rating, but actual sex was not. But the board retained the right to award Baise-Moi an R-rating "given the context".
Mr Clark said people could make their own decision whether to see the film. He denied the board had become more liberal or conservative in awarding classifications: it was regularly accused of being both. He conceded Baise-Moi was "the strongest" of three recent sexually explicit films including Romance and Intimacy that had caused censorship debate in Australia over the past two years.
Baise-Moi's distributor, Mark Spratt of Potential Films, which also handled Romance in Australia, said the furore over the latter set a benchmark, which had allowed films such as Baise-Moi and last year's Intimacy and Japan's In the Realm of the Senses to achieve an R-rating, rather than face tighter restrictions.
He said the censorship office's Mr Clark had had a "steadying" influence on film classification in Australia. "I think the message has got through to them that the community isn't screaming for more censorship, as a few minority groups would have them believe. I think the OFLC recognises that in a film that's a legitimate drama there's a place for this degree of explicitness."
Protests Over Violent, Explicit pornographic film "BAISE –
The Christian Democratic Party, April 15, 2002
Many organisations have protested to the Federal Government over the R18+ classification for an extremely violent and explicit pornographic film ‘BAISE MOI’, which has been banned in over 20 countries including the USA and cut in other countries.
On Friday 12th April, the Rev Fred Nile MLC, Member of the NSW Parliament, sent a strongly worded letter to the Federal Attorney General, Hon Daryl Williams and the Prime Minister Hon John Howard, urging the film be banned and refused classification (refer attached letter).
"The film which contains actual sex acts, not simulated sex acts, makes it a pornographic film not suitable for general theatre and video release" said Rev Fred Nile MLC.
"It is also an insult to our ex servicemen and Anzac commemorations to release the film on Anzac Day, 25th April, 2002, in Sydney and Melbourne".
"The increasing number of rape attacks, violent murders and shootings in Sydney do not need the incitement and encouragement of such a violent film, with its subtitle ‘RAPE ME’" said Rev Fred Nile MLC.
It was planned for BAISE-MOI to open in late April 2002. The distributor, Potential Films, was promoting it as:
Art or Pornography?
You be the judge.
Banned in France!
Cut by the censor in Britain!
Pulled off screens by court order in NZ!
Complete and uncut in Australia!
Ironically, it would soon be banned in Australia, and complete and uncut in New Zealand.
The film opened with a heap of free publicity when The Attorney-General Daryl Williams called for it to be reviewed. The request was made on April 21st 2002; however, the Board was unable to meet until May 10th. During this time, BAISE-MOI opened around the country and was enjoying healthy box-office.
Attorney-General Daryl Williams
I have requested that the Classification Review Board review the R18+ classification of the French film Baise-Moi, following a number of representations to me concerning the film.
The Classification Board classified the film as R18+ last October in a majority decision of 6 votes to 5.
I do not take lightly my power to seek a review and the fact that the Classification Board makes a decision by a close majority would not, by itself, justify my intervention.
I understand that the film is intended for limited release. Clearly there are already restrictions on who may see the film, and consumers are warned that it contains "Strong Sexual Violence, High Level Violence, Actual Sex, and Adult Themes".
I am advised that, in making its decision, the Classification Board carefully considered the guidelines and section 11 of the Act, and that they took into account "the literary, artistic, or educational merit … of the film".
In no way does my decision to seek a review reflect any concern about the handling of this matter by the Classification Board.
However, after carefully reading the decision of the Board, I was persuaded that there is an arguable issue about whether Baise-Moi ought to have been classified R18+ and that there is merit in seeking a review of the Board’s interpretation of the guidelines.
I am also conscious of the diverse reaction to classification of the film in overseas jurisdictions.
I note that new standing provisions for "persons aggrieved" came into effect in March 2002. I would expect in future cases that people appropriately covered by those provisions will seek to use the new mechanisms for seeking review promptly.
I stress that my decision is simply to request a review of the classification of the film by another body. It is not up to me to classify the film – that is a matter for the Classification Review Board. In the meantime it is a matter for individual adults to choose whether or not to see the film, given the consumer advice about its contents.
Call for new review of French sex film's rating.
theage.com.au, April 22, 2002
In asking for the rating review, Mr Williams said he had received representations from individual members of the public expressing concern about the film.
"After carefully reading the decision of the board, I was persuaded that there is an arguable issue about whether Baise-Moi ought to have been classified R18+," Mr Williams said. "I am also conscious of the diverse reaction to classification of the film in overseas jurisdictions."
Government leads on Baise-Moi review
The Christian Democratic Party, April 22, 2002
Rev Fred Nile MLC congratulated the Federal Attorney General, Daryl Williams, for showing leadership by ordering a review of the French film Baise-Moi.
Rev Fred Nile said, "Daryl Williams has shown leadership in this situation by requesting the Classification Review Board to review the R18+ rating on the French film Baise-Moi. This film was banned in liberal minded France yet classified here in Australia."
"The attack by the liberal left post-modern lecturer of censorship law and founder of Watch on Censorship Rebecca Huntley is uncalled for. She calls the review ‘an example of the conservative moral agenda’. Rather she seems to be pushing her own post-modern philosophy which believes in ‘any-thing-goes’ morality based on relativism and which rejects a belief in absolute moral truth."
"One only wonders what postmodern agenda Ms Huntley is pushing in making her comments. This is a film which has been banned by many governments around the world. Even prominent Australian journalist have written of their surprise that this film has received classification here in Australia."
"Ms Huntley would be well aware that Australian classification guidelines for R18+ are very clear. They include bans on excessive violence, sexual violence, sexual activity that is not simulated, and nudity in a sexual context should not include obvious genital contact. The Guidelines state, ‘Gratuitous, exploitative or offensive depictions of cruelty or real violence will not be permitted’ and ‘Sexual activity may be realistically simulated; the general rule is ‘simulation, yes – the real thing, no.’ Nudity in a sexual context should not include obvious genital contact."
"This film breaks most of the classification guidelines established for R18+. These guidelines are based on community standards. It is what the community thinks that establishes the criteria for the guidelines. Not some ‘conservative moral agenda’ as claimed by professor Huntley. If the film steps outside the established boundaries of the guidelines it should not be classified. This film does not even fit into the X18+ rating because of its depiction of violence and actual genital sex. The only category in which it fits, based on our established Australian classification guidelines, is RC for refused classification."
With the prospect of a review hanging over them, Potential Films decided to go on with the planned release.
Baise-Moi controversy set to ensure full houses
theage.com.au, April 23, 2002
Tomorrow, Melbourne filmgoers will have a chance to see the controversial film Baise-Moi for themselves.
The manager of the Lumiere Cinema, Paul Coulter, has scheduled an extra daily session, although he says that "this kind of situation often attracts people who come to the film for the wrong reasons".
South Australian Liberal MP Trish Draper said yesterday the film blatantly contravened the classification guidelines in its depiction of sexual violence.
Mrs Draper, who has not seen the film, wrote to both Prime Minister John Howard and Mr Williams requesting the classification be reviewed after members of her electorate drew the film's official warnings - "strong sexual violence, high level violence, actual sex and adult themes" - to her attention.
"Even in X-rated films, and we're talking about hardcore porn, you're not allowed to depict sexual violence against women or men and that's the crux of the issue," Mrs Draper said yesterday.
The guidelines for an R film say that simulated sex is permitted, but "the real thing, no" (the French film Romance, initially banned but later given an R rating, features real sex) and sexual violence may only be implied but not detailed.
National Party MP De-Anne Kelly also wrote to Mr Williams after constituents in her north Queensland electorate raised their concerns with her.
Although Mrs Kelly acknowledges she is relying on "third-hand information" because she has not seen the film, she believed the concerns raised with her were very real.
"According to those who have seen it, the film has a lot of sexual violence," Mrs Kelly said. "Sexual violence doesn't deserve an R rating. It has actual sex rather than simulated sex and is apparently very violent and confronting."
Editorials in both The Age and The Sydney Morning Herald spoke out against the review.
Editorial: Film furores not for governments.
smh.com.au, April 23, 2002
For 30 years, classification has served the community well in terms of restricting audiences to appropriate ages and as a general guide to viewers. Within the restrictions, sensible people make sensible choices. These should not be curtailed by governments giving undue comfort to advocates of suppression.
Editorial: Sexual violence and the usual suspects.
theage.com.au, April 24, 2002
But the ability to confront and to excite debate should not automatically be condemned as mere sensationalism. Indeed, art must always possess as one of its constituent parts the capacity to shock, in order to provoke the viewer or listener into dealing with various truths about human relations or nature or life itself.
Until Australia enshrines in law the right to free speech, it will remain prone to exactly the type of behind-the-scenes manoeuvring that has characterised the Baise-Moi "controversy".
When the Review Board did meet, it proved to be a very easy decision to award BAISE-MOI an RC-rating.
CLASSIFICATION REVIEW BOARD
10 May 2002
23-33 MARY STREET
SURRY HILLS, NSW
Ms Maureen Shelley (Convenor)
Mr Jonathan O’Dea (Deputy Convenor)
Dr Robin Harvey
Ms Kathryn Smith
APPLICANT: Attorney-General, The Hon Daryl Williams AM QC MP
To review the decision of the Classification Board to assign the classification "R18+" under the Classification (Publications, Films and Computer Games) Act 1995 to Baise-Moi (the film) with the consumer advice "Strong Sexual Violence, High Level Violence, Actual Sex and Adult Themes".
DECISION AND REASONS FOR DECISION
The Classification Review Board (the Board) decided to set aside the decision of the Classification Board and to classify Baise-Moi "RC" (refused classification).
2. Legislative provisions
The Classification (Publications, Films and Computer Games) Act 1995 (the Act) governs the classification of films and the review of classification decisions. The Act provides that films be classified in accordance with the National Classification Code and the classification guidelines.
Section 11 of the 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;
(b) the literary, artistic or educational merit (if any) of the film;.(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.
The National Classification Code (the Code) requires that
Classification decisions are to give effect, as far as possible, to the
(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; and
(d) the need to take account of community concerns about:
i) depictions that condone or incite violence, particularly sexual violence; and
ii) the portrayal of persons in a demeaning manner.
Within the Code, paragraph 1 of the Table under the heading "Films"
provides that films that:
"depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified" should be classified "RC."
Further, the Code provides that films may be classified "X" if they:
a) contain real depictions of actual sexual activity between consenting adults in which there is no violence, sexual violence, sexualised violence, coercion, sexually assaultive 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 b) are unsuitable for a minor to see.
The Guidelines in relation to the "R18+" category provide, in part
"Sexual activity may be realistically simulated; the general rule is ‘simulation, yes – the real thing, no.’" and "Nudity in a sexual context should not include obvious genital contact."
In addition, the Guidelines in relation to the "X18+ Restricted" category provide, in part that, "No depiction of violence, sexual violence, sexualised violence or coercion is allowed in the category."
Four members of the Board were empanelled and viewed the film at the Board’s meeting on 17 May 2002.
An application for review was received from the Attorney General The Hon Daryl Williams. Mr Williams was offered the opportunity to provide further submission, either in writing or through a representative, to the Board but chose not to do so. The Board received submissions from interested parties. Potential Films, the original applicant for classification, represented by Mark Spratt made written and oral submissions to the Board. The written submissions included extensive media commentaries and reviews. After the screening of the film and having the opportunity to seek further advice, Mr Spratt requested two further media articles/reviews be taken into consideration. This was done.
A submission was also received from the Australian Family Association (AFA) which the Association requested be taken into account during the Board’s deliberations.
Prior to making a decision as to whether the AFA’s submission would be considered, the Board made a copy of the submission available to Mr Spratt and asked if he would like to comment on any matters raised by the submission. Mr Spratt was given the opportunity to seek further advice, including legal advice, and return to the Board at a later time with any comments regarding the submission or raised by matters contained within the submission. No further written submissions were received by Mr Spratt in relation to the AFA submission.
Mr Spratt did not object to the AFA submission being considered but made comments regarding its accuracy. Specifically, Mr Spratt stated that the AFA’s quote from the Classification Board report regarding an "underage porn" actor was wrong, that the actor in question was 24 years of age at the time of filming and the directors had not attempted to make her appear as a minor.
The Board then met in camera to consider the matter.
4. Matters taken into account
In reaching its decision the Board had regard to the following:
The applicant’s Application for Review
(a) Oral and written submissions by the film’s distributor, Potential Films;
(b) Written submission from the Australian Family Association;
(c) The film Baise-Moi;
(d) Information regarding the date of Raffaela Anderson’s date of birth from the film website www.usimbd.com;
(e) The relevant provisions in the Act;
(f) The relevant provisions in the National Classification Code as amended in accordance with Section 6 of the Act; and
(g) The Guidelines for the Classification of Films and Videotapes determined under Section 12 of the Act.
5. Findings on material questions of fact
In its submission, Potential Films stated:
manhunt, soon everyone is out to capture the two young fugitives.".
The Board as a finding of fact believed that this was a reasonable summary of the plot of the film. Manu, is shot and killed at a service station and Nadine, is arrested by the police during an attempt to kill herself. During their time on the road the women (and others) use proscribed drugs (marijuana, cocaine) and guns. They knife and shoot their victims with many being depicted in pools of blood. They use their car to run over a victim. They steal money and goods. The film contains scenes of actual sex depicting the two main protagonists and other named and nameless characters in the film. It contains extensive coarse language. The actual sex scenes show partial nudity and explicit genital contact.
The Board found that the film was of almost unrelenting violence. Some of the instances of violence are listed.
• At approximately 20 minutes Manu has an argument with her brother which escalates and he gets a gun and tells her to "Shut your big fucking mouth", she responds: "Fuck you". At 21.30 Manu fights with her brother and shoots him in the head. He is shown dead lying in blood on the floor, there is blood coming from the back of his head, there is blood on his face and the walls. She takes his money, bends over, kisses him and leaves with the gun and the money. This strong scene of realistic violence has high impact.
• At 22 minutes Nadine and her flatmate are physically fighting. Nadine leaves her flatmate prone and unmoving on the floor. Mr Spratt in his submission stated that Nadine and Manu meet after they both have killed someone. It seems that Nadine kills her flatmate in this scene.
• At 24.30 the men who have earlier been pursuing Nadine’s friend Francis shoot him. Nadine sees it happen. The scene is replayed in slow motion. There is blood over the car and over his dead body. One of the techniques of the film, as is common in the pornographic genre and which is shared by "sport action-replays", is to show a scene, return to it, show excerpts of it again, sometimes from a different camera angle and sometimes again in slow-motion. This technique increases the impact of these scenes. This scene is edited using this technique. This is a strong scene of realistic violence.
• Soon after this event, Manu and Nadine meet outside a train station. After a short conversation they get into Francis’ car. Manu points a gun at Nadine and says: "I want to go to the sea and you’re going to take me there."
• At 39.56 The women rob a gunshop and shoot the owner.
• At 48 minutes Manu shoots and kills a man in the street who has asked her: "Do you wanna feel my balls slapping your ass?".
• At 55 minutes Manu shoots a police officer.
• At 1 hour and 3 minutes Manu shoots a wealthy home owner. He is shot several times and blood is spread through the room. At 1 hour 4 minutes Manu and Nadine are sitting outside the man’s house drinking beer and Jack Daniels and eating Cadbury Fingers. His bloodied body is inside the house. The callousness of the women and their lack of remorse or concern is striking
• At 1.08 Manu is shot by a service station proprietor and Nadine shoots him.
• At 1.09 Nadine drives Manu’s body to a forest. She is crying and there is blood on her hand. She lowers the body to the blanket and kisses the dead body.
• At 1.13 Nadine is sitting by a lakeside with a gun to her head. She is captured by the police and the film ends.
Realistic violence which was found to be gratuitous
Strong depictions of realistic violence were shown and it was considered that some scene were gratuitous. Some scenes of realistic violence which were considered gratuitous are listed below.
• At approximately 34 minutes Nadine and Manu shoot a woman at an ATM. The scene shows the woman being shot, the blood spurting and the woman sliding down the wall with the blood sprayed over the wall as she collapses. Manu says: "First I felt bad . . . [now] I feel really great. So great I almost feel like doing it again". This strong scene of realistic violence is gratuitous and of high impact.
• At 38.50 The women steal a car and run over its owner. "Fucking bastard, let rip the mother-fucker". Blood is shown coming out of the man’s mouth as he lies prone on the ground, apparently dying. This is one of the scenes with the repetitive editing techniques which increase the impact of the scene. This scene was found to be gratuitous.
• At 43 minutes Nadine sniffs cocaine. Manu is with a man who wants to wear a condom to have sex. At 45 minutes Manu puts her head into the mans groin area. He appears to believe she is going to perform fellatio. She vomits into his lap. Manu and Nadine laugh. He says: "Filthy little cunts". Manu head butts him. Manu and Nadine then kick the man and tread on him with high spiked heeled shoes until he appears to be dead. He is shown with blood over his head and over the carpet. The Board found this scene to be gratuitous with a high level of impact.
• At 1 hour 6 minutes a sex club is shown. Couples are having actual sex including fellatio and rear penetration. One man approaches Manu who says "Fuck off mother fucker, keep your hands off me". Manu and Nadine then start shooting people. There is blood and bodies throughout the club. One man is having sex and has his trousers around his ankles. He tries to remove his erect penis from his partner’s vagina but has difficulty. He stands up and tries to run away but is hampered by his trousers. He is shot. The scene is comical, cruel and degrading. The sex club scene is gratuitous in parts and contains elements which are very high in impact and degrading. The interaction between the scenes of actual sex, the degrading way the man with his trousers around his ankles is shown and the violence of the scene (the shooting, the blood, wounded people crying and screaming) increase its impact on a cumulative basis to that of a very high level.
Sexual violence in the film was detailed and in the rape scene was prolonged. A description of some of the elements of the rape scene follows. It is a scene of very high impact.
At 9 minutes Manu and her friend are sitting on a park bench when approached by several men. They are taken in a car to a covered carpark and raped. The film cuts between the two women being raped. One is violently resisting and is shown with blood on her legs and her face. She is screaming. Her breasts are exposed and she is crying. A close up shot of an erect penis in a condom is shown and is shown being inserted into the woman’s vagina. She continues screaming and struggling. Her bloodied face is shown again. She has been repeatedly hit across her face by the rapist. She is crying and sobbing.
Manu is shown as unwilling but completely unresisting. She demonstrates little emotion during the rape. She lies prone on the floor with her legs spread as one man rapes her. One man tells her to get on all fours. She does so. He spits on his hand and wipes the spit on his penis. Implicit rear penetration is shown. She shows no emotion and does not move, unless instructed, nor does she struggle. He says: "Shit it’s like fucking a zombie." When berated (at approximately 13 minutes) by her still-crying friend as to why she did not resist the rapists Manu says: "I leave nothing precious in my cunt for those . . ."
The rape scene is a disturbing one and is of very high impact. It shows two women being raped, one with violence and visible and audible distress, one with a complete absence of emotion. At approximately 4 minutes length the sexually violent scene is prolonged and detailed (erect penis, condom, exposed vagina, bloodied face and legs of victim). The scene where Manu is raped through rear penetration is degrading.
In describing the rape scene Mr Spratt stated:
"This crucial scene depicts rape as an ugly, violent crime. It is not sanitised for a comfortable viewing experience nor presented as an erotic fantasy. It is an example of the skill and intentions of the filmmakers in confronting the audience with what is for women in many places [these suburbs, war zones] a ghastly, everyday reality. Virginie Despentes [Convenor’s note: the co-director] has defended her use of a close shot of sexual penetration during this scene as being vital to her intention to show that this scene is about the violation of one person’s body by another. This detail, in common with many other recent films that have dealt with war violence for example, is graphic but not, I believe exploitative or gratuitous."
The Board noted Mr Spratt’s submission but found that, notwithstanding the directors’ stated intentions, the scene was prolonged, detailed and gratuitous.
The Classification Board stated in its report that the bleak cinema verite treatment of the rape scene detached the explicit scene (of the penis being inserted in the vagina) from the scenes of violence. The Board found that the insertion of the penis was in itself the act of rape and therefore was an act of violence and of sexual violence.
At approximately 1 hour 07 minutes Manu gives instructions to the man in the sex club who approached her. He is on all fours and she says: "C’mon grunt asshole. Drop your pants". He removes his pants and is grunting and wiggling his bottom. He is shown with blood running down his face and is clearly frightened. Manu shoots him in the anus and the blood comes out of his face. The screen turns red. This degrading scene is disturbing, gratuitous and of very high impact.
This scene was considered in relation to sexual violence because of the nudity of the man, the context of the scene taking place in the sex club where scenes of actual sex had been depicted earlier, the sexual position which he was forced to assume, the cinematic reference to the earlier rape of Manu, and the scene’s further cinematic reference to a similar rape scene of a man by a group of men in the film which included rape by the use of a gun into the man’s anus.
The scene of the man on all fours being asked to grunt and wiggle was also considered offensive and demeaning. Whilst cinematically its intention may have been to reinforce the impact of the rape of Manu (who was also on all fours and asked to make noises and move), and her disengagement from reality during that scene, the Board considered it went beyond what was necessary for the storyline and was gratuitous.
Findings as to cultural merit
The film was considered to have significant cultural merit. The Board considered the following elements in this regard.
The film comes from the pornographic genre and uses many of the genre’s editing techniques, as mentioned above, for impact. It has also been described as being in the tradition of cinema verite and whilst dark in tone shows the women to have agency and direction. The techniques used of lighting, editing and the compelling music of the soundtrack increase the impact of the film.
Its digital video format gives it a grainy quality in keeping with its stark, realistic portrayal of the women’s lives and as one critic noted "a certain murky malignancy".
Unlike many pornographic films it has a strong plot, good characterisation, compelling and believable performances by the actors Bach and Anderson, an outstanding musical score which enriches the visual elements and entertains the viewer/listener with rich melody, rhythm and beat, and some integrity of cultural purpose given the directors’ aim of incorporating "a strong feminist warrior vision, while also [demonstrating] a cutting edge sense of provocation" which Despentes stated was important to them.
In material submitted by Mr Spratt for Potential Films he states that the backgrounds of the two directors (one as porn star, one as a sex worker) contribute to the film’s integrity and the inclusion of porn stars Bach and Anderson furthers this. The Board agreed that the porn-star background of one of the actors, and that of one of the directors, added to the authenticity of the portrayal of the actual sex scenes, this was clearly familiar territory for them.
In the context of the pornographic genre the film had much to offer, however, the Board did not consider the film to be of such merit as for this to otherwise override the requirements under the Code and the Guidelines.
Finding in regard to "under age porn star"
In regard to the Classification Board’s report reference of an "under age porn star", which was quoted in the AFA submission the Board made its own enquires.
The Board found that the actor Anderson was aged 24 at the time of filming as it obtained independent verification from film website www.imdb.com confirming her date of birth as the 8 th of January 1976.
In the Board’s view Anderson was not depicted as a minor. As Board members had read the AFA’s submission and heard from Mr Spratt prior to seeing the film, members took particular note as to whether Anderson had been portrayed in a child-like manner or in anyway which could be seen as a minor.
The Board found that the character Manu was not portrayed, either by intent or unintentionally, as a minor.
Finding regarding actual sex
This finding was based on the Board’s assessment of the content of the following scenes:
• At 14 minutes Nadine who is employed as a sex worker is shown with a client. The money is counted out. She is wearing leather underpants and stilettos. Actual fellatio is shown at approximately 15 minutes with the erect penis moving in and out of the actor’s mouth.
• At 15.15 actual sexual intercourse is shown between Nadine and her client. She is watching TV with her head hanging over the bed during the event. At approximately 15.40 implied rear penetration is shown. The erect penis is shown. Nadine is watching a sausage being sliced on TV. She groans but shows no emotion.
• Between 35.30 and 38 minutes a sex scene is shown. Both women are having sex with unnamed male partners in the same room. The scenes cut back and forth between the two beds. Implied cunnilingus and actual fellatio are shown as well as actual sex with penetration. The women watch each other having sex with their partners.
• At approximately 52 minutes to 54.30 is a further sex scene. Both women are shown having actual sex with different partners. Erect penises and obvious genital contact are shown, rear entry penetration, masturbation, fellatio are shown. A parted vagina is shown in close up. A man masturbates his erect penis as he rubs his partner’s underpants. The scene cuts to the other woman and her partner having sex and back to the first couple. By the technique of switching.between sexual scenarios the impact of the scene is increased. The scene is detailed and prolonged.
• The sex club scene described in the subsection headed "violence" contains several instances of actual sex including prolonged and detailed scenes of fellatio (one with a mature couple and one with a younger couple), erect penises and rear penetration sex.
Drug references, adult themes, coarse language
Apart from the scenes of actual sex and gratuitous realistically simulated
violence, the other elements of the film could have been accommodated within
an R18+ classification. The film used coarse language which would have
required an R (restricted) rating. Further it dealt with adult themes of
death, the use of proscribed drugs and trauma. Some of those elements are
The opening scene shows a woman who appears to be drugged and has bruises on her arms. A bar scene follows where young men are playing pool and a woman approaches one. He tells her to: "Fucking piss off". Manu is in the bar.
At approximately 4 minutes Nadine’s is in her flat watching a pornographic video whilst fondling herself and talking to her flatmate. Nadine says: "I’m sick of having to masturbate in my room." At 6.15 Nadine smokes a joint after asking: "Have you got any weed left?" and being told: "You’re a fucking pain".
At 16.22 Nadine argues with her flatmate. A violent scene is shown where men pursue one of Nadine’s friend Francis. "What do you see in a junkie like him?" asks her flatmate.
At 23 minutes Nadine is seen writing out a doctor’s prescription. Francis comments she is: "Doing a prescription in your fancy writing". At 23.30 Nadine and Francis are talking and Francis describes a women and says: "She crosses the border with acid and all that shit."
At approximately 42 Manu is shown seated in her underwear on a bath with menstrual blood coming from between her legs and running down into the bath. She is talking to Nadine during this scene who is visible to her.
Whilst these elements would not be such that would require more than an R (restricted) rating the Board considered the film as a whole as one of almost unrelenting violence, interspersed with extensive actual sex scenes. Less than 10 minutes of the film could be described as light in tone. The sex and violence in the film are inextricably linked which take it into the RC (refused classification) rating.
Mr Williams, in his application for review stated:
"After carefully reading the decision of the Board [Convenor’s note: the Classification Board], I am persuaded that there is at least an arguable issue elements I have described are justified by context and artistic merit."
Mr Spratt in his verbal submission, which he read from a prepared
paper - copies of which were given to the Board, stated:
Mr Spratt further stated:
entertaining. Above all it seemed defensible. . ."
The Board agreed with Mr Williams that it was "arguable that the Classification Board classified Baise-Moi in accordance with the guidelines."
Whilst noting Mr Spratt’s well-argued submission regarding the merit of the film, the Board found that the merit was not sufficient to otherwise override the requirements of the Act, Code and Guidelines.
The Board had regard to the submission of the AFA but gave it little weight in determining the classification because the authors relied solely on the Classification Board’s report and had not made further independent assessment of the film for themselves.
6 Reasons for the decision
The Board considered the film in light of the relevant provisions of the Act, Code, Guidelines and having regard to the terms of the application for review from the Attorney General and submissions from the interested parties.
The film is of almost unrelenting violence and some scenes contained gore and some were of high impact. Strong depictions of realistic violence were shown and it was considered that some scenes were gratuitous.
Sexual violence was detailed and in the rape scene was prolonged. The rape scene was one of very high impact.
The depictions of violence were frequent and some were gratuitous and
exploitative. Notably, the sex club scene was considered in parts both
gratuitous and exploitative.
There were several scenes of actual sex in the film including erect penises, semi-nudity with obvious genital contact, an exposed and parted vagina shown in close-up and actual fellatio and actual masturbation with an erect penis.
Whilst there was little total nudity, the partial nudity included several scenes of obvious genital contact.
The language in the film was such as to require an R rating.
The film dealt with issues of suicide, crime, corruption, emotional trauma, drug dependency and death but these were not generally of a very high degree of intensity and were not considered exploitative.
Drug use was shown but was not gratuitously detailed nor promoted. Drug users were not shown as escaping from the consequences of drug use (bruising to one users arms, one character contemptuously being described as a "junkie").
Section 11 considerations
The Board formed the view that the inclusion of detailed and prolonged scenes of sexual violence which included actual sex, and the combination of sex and violence, meant that the film fell outside what was considered generally acceptable by reasonable adults.
The Board then considered 1) the film’s general character, 2)
Potential Film’s submission that the film
"notwithstanding the strength of the classifiable elements in the film, [was] an against a very literal and quantitative application of the general guidelines"
3) the artistic merit of the film (if any) and 4) the persons amongst whom it is to be published.
Despite significant cultural merit found in the film, the Board concluded that the general character of the film, its artistic merit and any educational value it might have was ot such as to justify a classification except RC.
To do so would have meant that the R restricted classification would be able to contain material not permitted (ie. sexual violence) in the X restricted classification, which is a more restricted category. The Act states that the classifications are listed in ascending order with R (restricted) appearing in the list prior to X (restricted).
Balancing these considerations is the principle that adults should be able to see, hear and read what they want. The Board did specifically consider Section 11 of the Act but concluded that the Code’s explicit statement of concern regarding sexual violence and the extensive nature of such sexual violence in the film would override the principle in this instance.
The Australian Family Association’s submission
The Board had regard to the AFA submission but did not give it much weight in its determination. The AFA relied on the description of the film in the report of the Classification Board as a basis for its submission. The AFA raised issues relating to strong sexual violence, actual sex and nudity with obvious genital contact and portrayal of a minor under 18 engaged in actual sex.
The AFA stated:
"The Board’s [Convenor’s note: the Classification Board] report observes, but (somewhat surprisingly) otherwise fails to comment on, the fact that one of the two main characters in the film, Manu, is "an under age porn actor". This implies that she is depicted as a minor under the age of 18 years.
The X 18+ classification, which provides for explicit depiction of sexual activity, prohibits the depiction of non-adult persons, including those aged 16 permit persons 18 years of age or over to be portrayed as minors.
If the Classification Review Board maintains the view expressed in its decision on Romance that the guidelines permit "exceptions in a limited number of actual sex should be included in this "limited number of instances".
Otherwise this would result in the R 18+ classification being interpreted as allowing depictions of explicit sex with persons portrayed as minors which are prohibited in the X 18+ classification."
Mr Spratt, in his verbal submission, stated that the AFA quote regarding the underage portrayal by Anderson was factually incorrect. He said the Classification Board erred in its report in a matter of fact as Anderson was 24 at filming and now aged 26. He also stated she was not portrayed in a child-like manner nor portrayed as to appear under the age of 18.
The Board accepted Mr Spratt’s evidence on this point and agreed that Anderson was not portrayed in a child like manner and did not appear under the age of 18.
The X restricted classification states:
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.
No depiction of violence, sexual violence, sexualised violence or coercion is allowed in the category.
Whilst it was not relevant to the application for classification which was the subject of the Board’s determination, should the Board have been required to consider this issue, the Board considered that the film could not have been accommodated within the X classification due to the strong and extensive scenes of realistic and gratuitous violence, sexual violence and coercion.
The Board decided to set aside the decision of the Classification Board and to classify Baise-Moi RC (refused classification).
This decision was taken with due deliberation and consideration of the Act, Code and Guidelines, the applicant’s request for review and the submission from Mr Spratt of Potential Films. The submission from the AFA was also considered.
It is the Board’s belief that to classify the film in any other way than RC would have required the Board to ignore the requirements of the Act, the Guidelines and the Code agreed to by the Commonwealth, State and Territory Ministers with censorship responsibilities. The Act requires the Board to classify films "in accordance with the Code and the National Classification Guidelines".
The Board considered that the film contained scenes of violence which had a very high degree of impact and were prolonged and detailed. It also considered there were prolonged scenes of sexual violence. In a cumulative sense, the film as a whole depicted strong scenes of sex and violence which were inextricably linked throughout. This interaction of sex and violence in the film increased the impact of the individual scenes.
The Board also considered the statement in the Code regarding community concerns about the portrayal of persons in a demeaning manner.
The Board considered the scenes of the rape of Manu on all fours being given instruction by her rapists on how they wanted her to move and sound and the later, somewhat similar scene, of Manu instructing the man in the sex club to move and grunt and squeal while being on all fours were demeaning. The Board found that these scenes were intended to titillate.
In balancing the matters for consideration under the legislative scheme, whilst acknowledging the film has artistic merit, the Board did not consider its "serious cultural purpose" was sufficient to warrant a classification except "RC".
19 June 2002
For a short time, the Chauvel and Valhalla cinemas in Sydney and the Lumiere in Melbourne continued to run BAISE-MOI. They claimed that they had not been served a notice to stop. It was prevented from screening in Brisbane and Perth on the day of the Review Board's decision.In circumstances such as this, the REFUSED CLASSIFICATION INFORMATION SHEET states that:
"A decision of the Review Board takes effect immediately. once written notice is given to the distributor.
If a film is refused classification, it is illegal to exhibit the film in Australia.
Each State and Territory is responsible for enforcing the Act and has its own enforcement legislation.
In limited circumstances, Classification Review Board decisions can be subject to judicial review under the Commonwealth Administrative Decisions (Judicial Review) Act 1977. Judicial review is concerned only with the legality of the Classification Review Board's decision making process not with the decision itself."
Cinematic smut off Aussie screens
smh.com.au, May 11, 2002
Almost 50,000 people have seen it in the past month, but now the controversial French film Baise Moi has been banned from Australian screens.
The film's distributor, Mark Spratt, was shocked by what he called an extremely heavy-handed action.
''It's absurd to fly in the face of public opinion, editorial opinion and general acceptance of the film since it's been playing. It's insulting to the public, really."
Mr Spratt said Australia joined Ontario, Canada, as the only place to ban Baise Moi. It screened in England after a cut to a scene showing sexual penetration but had run in about 30 other countries.
The Liberal member for Makin in South Australia, Trish Draper, was delighted by the decision. While she had not seen the film, she believed it contravened the guidelines for an R rating because of its violence and sex.
Sex film banned after review
theage.com.au, May 11, 2002
The manager of Melbourne's Lumiere Cinema, Paul Coulter, said last night he had not been told of the ban, which he described as "outrageous", and screenings would continue until he was notified.
Baise-Moi has been showing at the Lumiere for six sessions a day since April 24. Between 10,000 and 15,000 people in Melbourne have seen the film, which took $302,000 nationally in its first two weeks.
The film's distributor, Mark Spratt, said the review board's decision "ignored every editorial and the weight of public opinion", which had been in favour of allowing the filmed to be screened. He is seeking legal advice on further action.
Cinemas remain defiant over French film
theage.com.au May 12, 2002
Controversial French arthouse film Baise Moi has continued to screen in Victoria and NSW despite Australian censors banning it late last week.
The Valhalla at Glebe in Sydney's inner west, the Chauvel Cinema at Paddington in the eastern suburbs, and the Lumiere Cinema in Melbourne advertised the film's screening in Sunday newspapers but a spokesman for the Valhalla said it may not continue for much longer.
"We are still running it today, but we are expecting it may be the last day today," he said.
NSW Premier Bob Carr said his government was seeking legal advice over the applicability of the ruling in NSW and attacked the nation's censors for trying to tell adults what they could watch in cinemas.
"I don't like the idea of telling adults what they can see in cinemas," he told reporters in Sydney.
"I don't want to go back to the bad old days of police charging into cinemas or bookshops or theatres and closing things down or seizing books, but the state has got a limited rule here."
The decision was made at national level and NSW could not institute its own classification system because people would not want that, he said.
The three cinemas continuing to screen the film advertised six screenings of the film for today, with four at the Chauvel and six at the Valhalla and Lumiere for tomorrow.
Chauvel indicated it would continue to screen the movie until it was served with a legal notice to stop showing it.
Exhibitor Alex Meskovic said he was appalled at the decision to ban the movie.
"We have been averaging $30-40,000 a week, that's about 4,000 people a week (for the film)," Mr Meskovic said.
Cinemas defy censor's ban on sex movie
smh.com.au, May 12, 2002
Cinema owners ignored the Federal Government censor yesterday and showed the banned sex-and-violence French movie Baise Moi to packed houses.
Chauvel cinema owner Alex Mescovic said he had not been told officially the film had been banned and would continue to show it until he was.
''We have been showing this film for weeks and we have advertised it for this weekend, so we have an obligation to show it," he said yesterday at his cinema in Paddington Town Hall.
Anyone showing a banned film can be jailed for a year and fined up to $11,000. A company can be fined up to $250,000.
''Never before has a film been banned once it has opened and been in general release," Mr Mescovic said. ''They did ban the film Salo in 1997, but that was years after it had been released and been through the cinemas
''I don't even know who will tell us to take this film off. Will police come in and close us down?"
The owner of Valhalla Cinema in inner-city Glebe, Chris Kiely, also said he would screen the film until he received official notification.
Yesterday afternoon police had not approached him. Local police had visited the cinema earlier, but it was closed. A spokesman said officers would ''examine the product" and seek legal advice.
A poster stuck to the main entrance detailing the film's screening times had the word ''cancelled" written across it anonymously in blue pen.
Mr Kiely said he was furious about the ban. He had been showing it for three weeks to a packed house and no patron had complained.
NSW Council for Civil Liberties Welcomes Premier's Comments over Baise-Moi
NEW SOUTH WALES COUNCIL FOR CIVIL LIBERTIES INC
Sunday, 12 May 2002
NSW Council for Civil Liberties President, Mr Cameron Murphy, today supported Premier Carr's call for legal advice over the banning of the film Baise Moi.
Mr Murphy said:
"as someone who is usually critical of Premier Carr, on this issue I believe he is taking a sensible approach by asking for legal advice about whether we have to enforce this ban in NSW."
"This film is an adult film, and adults should be able to decide what is appropriate for them to see or not to see. After all, they are the ones that go to the cinema an fork out their $12-$14 and they should be able to decide what is appropriate for them."
"The Classification Review Board is making a decision for everyone in banning this film, rather than allowing responsible adults to decide themselves what is appropriate for them to see."
"The banning of this film, after it has been screening for over a month, is a clear case of political interference from the Federal Attorney General, Daryl Williams."
"I understand that the Premier has today called for legal advice over the enforcement of this ban and I believe that NSW Police can, and should, refuse to enforce it."
"NSW Police, who are responsible for enforcing this ban by prosecuting those who screen and watch it, should ignore filmgoers in favour of serious crime."
"The last thing that we need is NSW Police being diverted from their important duties and going off to arrest innocent filmgoers and cinema operators."
"There is legal precedent for NSW to choose not to enforce Commonwealth laws. The situation surrounding the heroin injecting room at Kings Cross is a good example of this practice."
On May 12th, the NSW Police requested that cinemas in Sydney stop showing BAISE-MOI. The Lumiere in Melbourne decided to comply with the ban.
The NSW Premiere Bob Carr said he would look at ways to challenge the RC-rating. Whilst the Attorney-General of Victoria, Rob Hulls also made his displeasure known.
Baise Moi 'unlikely' to return, says censor
theage.com.au, May 13, 2002
John Dickie, former director of the Office of Film and Literature Classification, said NSW legal authorities would not be able to get Baise Moi back into cinemas after it was refused classification by the review board.
His comments follow reports NSW Premier Bob Carr would seek legal advice to challenge the ban.
"The legislation in 1995 and 1996 was agreed on by the commonwealth, the states and the territories, and at the basis of that agreement was that the commonwealth would carry out the classification function and the states would do the enforcement of those classification decisions," Mr Dickie told ABC Radio today. "That put into uniform legislation what had been the practice for many years (and) that's been the process ever since.
But Mr Dickie said there was "not much" Mr Carr could do to get the film back on cinema screens.
It had been through the process of initial classification and an appeal process by the review board, he said.
"It's been through all those processes and the classification review board has refused a classification," he said.
"I would have thought it would have been most unusual for anyone to not uphold that decision."
Mr Dickie conceded there may be some error of law that could be taken to the Federal Court but he "hadn't heard that bandied around".
Premier in bid to get banned film shown again
smh.com.au, May 13, 2002
The NSW government has sought urgent legal advice to determine whether banned French film Baise Moi can be returned to cinemas.
A Canberra cinema operator also is seeking his legal right to screen the the graphic and sexually explicit film.
Premier Bob Carr said he had written to Crown Solicitor Ian Knight asking for all options to be explored in relation to the matter.
This included whether the CCRB decision could be challenged.
''We don't want to go back to the bad old days when books were taken out of book shops as they were in Victoria in the early 60s or when stage shows were closed down, as they were in Sydney under the Askin government," he told reporters.
Mr Carr said while he did not want to see the film he did not like the idea of adults being told what they could and could not see.
The banning of the film followed a request from federal Attorney-General Daryl Williams to revisit the R rating classification originally given to it by the Commonwealth Office of Film and Literature Classification.
Mr Carr said Mr Williams had obviously received a complaint from ''conservative people".
He said while the film could be among the worst ever made, censorship was not the way to go and the move simply generated greater publicity.
In Canberra Ronin Cinemas director Andrew Pike said his lawyers were looking into whether there were any grounds on which he could ask the ACT government to appeal against the ban.
''We're trying to find out if there is any room for appeal," Mr Pike said today.
He said he had planned to screen Baise Moi from May 23 but would not be able to unless the decision was overturned.
Mr Pike also said the ban was a blow to small business.
''Independent cinemas need access to film like this," he said.
''It's not often we get access to such a high-profile film."
Lumiere may challenge Baise-Moi ban
theage.com.au, May 13, 2002
Lumiere manager Paul Coulter said he would be discussing whether to continue screening the film, which had its R rating withdrawn by the Office of Film and Literature Classification on Friday. Mr Coulter said he had not yet received official notification of the change.
Mr Coulter was considering approaching Attorney-General Rob Hulls today to ask him to intervene and allow the film to complete its planned run on Wednesday. "We have a contract with the distributors, there has been expenditure on promotion, and we feel we have an agreement with the people of Victoria to show the film," he said.
Melbourne cinema-goers were undeterred by the controversy, many queuing in the rain in Lonsdale Street last night, saying the widely reported ban had encouraged them to see the film.
Up to 1500 people bought tickets at the weekend with many more being turned away.
Cinema interruptus: Baise Moi no longer shown in Australia
smh.com.au, May 13, 2002
Controversial French film Baise Moi is no longer being shown in Australia, after Melbourne's Lumiere cinema cancelled today's screening.
Until today, the Lumiere was the only Australian theatre still showing the graphic and sexually explicit film, which was banned by the Classification Review Board late on Friday.
Several cinemas in Sydney and Melbourne continued to show the film at the weekend, claiming they had not been informed by state censorship authorities of the change from its original R-rating.
The NSW government is seeking legal advice over the ruling.
Carr on banned skinflick
ABC World Today, May 13, 2002
Mr Carr says he does not want to see a return to the dark ages of censorship.
"This could be the worst film made in the last five years but it leaves some of us with a dubious feeling if we now have police going into cinemas," Mr Carr said.
"We don't want to give encouragement to people who institute banning of books or closing down stage shows."
State 'powerless' to undo Baise Moi ban
theage.com.au, May 14, 2002
The Victorian Government was powerless to overturn a national ban of controversial French film Baise-Moi, after a review on Friday recalled the film's R rating, state Attorney-General Rob Hulls said yesterday.
"We don't have any power (to overturn the ban)," Mr Hulls said. "We don't have any power to review the review. We will adhere to the ultimate decision of the umpire, but the process has been appalling."
"From all reports it's a pretty ordinary film, but I think there's a bigger question here - and that is the right of Victorians to see a film that's gone through the appropriate classification procedures,"
Mr Hulls said he would write to federal Attorney-General Daryl Williams - who ordered a review on April 21, three days before the film opened - to complain about the review process.
"We are part of a national classification scheme and that means cooperation and collaboration rather than just Daryl Williams unilaterally going off and appealing the decision,"
Nile and Co get top billing as Baise Moi meets the usual
smh.com.au, May 14, 2002
In a highly organised campaign, the Rev Fred Nile, a member of the NSW upper house, and supporters of the Festival of Light lobbied the Prime Minister, his deputy, John Anderson, and the Attorney-General, Daryl Williams.
Mr Nile was joined by three federal MPs - the Nationals' De-Anne Kelly, Liberal Trish Draper and conservative Tasmanian independent Brian Harradine - who all claimed the censorship board had breached its own guidelines.
Ms Draper, a South Australian MP, said she was contacted by constituents and the Festival of Light in early April. ''It started out as a couple of calls but built up to quite a few. I was disgusted to think a film of its sex and violence could get an R-rating."
At 9am on Saturday Tery Breen, executive officer of the Australian Family Association NSW branch, asked Surry Hills and Glebe police to enforce the ban. It was not until Sunday night, however, that Valhalla and Chauvel cinemas were told to halt screenings.
''I would ask the question whether there was the political will to act," Mr Breen said. ''Were the police being hamstrung?"
The Premier, Bob Carr, yesterday asked the Crown Solicitor, Ian Knight, to explore ways the State Government could defy the Commonwealth ban but said his hands were likely tied.
In late May 2002, Des Clark, the Director of the OFLC, was in Canberra appearing before the Senate estimates committee. South Australian Labor Senator Chris Schact questioned him about the BAISE-MOI case. The infamous Tasmanian Senator Brian Harradine also made an appearance.
COMMONWEALTH OF AUSTRALIA
Official Committee Hansard
SENATE LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE
Consideration of Budget Estimates
TUESDAY, 28 MAY 2002 CANBERRA
BY AUTHORITY OF THE SENATE
Office of Film and Literature Classification
Senator SCHACHT—Who was the person who made the complaint to the Attorney- General that led to him referring the movie Baise-Moi to the review panel to review its R18 classification?
Mr Clark—I am not aware of the particular. I am aware there were some requests from individuals and organisations that went to the Attorney, but I cannot answer the entirety of that question.
Senator Ellison—It was a subject of the last estimates, I think.
Senator HARRADINE—Not this movie.
Senator Ellison—Sorry, it was another movie. I thought it was raised last estimates. I think the Attorney is on record as saying there was community concern, that a number of concerns were expressed, but I am not aware in particular of those; so I will take it on notice.
Senator SCHACHT—Is it a requirement under the act that the minister has to announce or table or indicate either who they were or what numbers of requests he got to refer a classification decision of the board to the review board?
Senator SCHACHT—It is very strange. I think the parliament has been very deficient in allowing a clause to go through which says the Attorney-General on any excuse—and then says it is community standards—can refer a decision of the board to the review panel. The minister has taken that on notice. Minister, do you know whether the Attorney-General got one request, five requests, 25 or 2,000?
Senator Ellison—I will take that on notice. I am not aware of that detail.
Senator SCHACHT—Mr Clark, the minister never consulted you as head of the office about his decision to put it to the review panel?
Mr Clark—No. The Classification Review Board is an entirely separate body in the sense of the decision making.
Senator SCHACHT—But when you gave it a classification of R18, did the minister at any time suggest to you he thought that that was a wrong decision?
Senator SCHACHT—Did any other minister in the government indicate by correspondence or phone call they thought it was a wrong decision?
Senator SCHACHT—How many other members of parliament, if any, wrote to you saying that the classification by the board was wrong?
Mr Clark—Not to me.
Senator SCHACHT—So there was none to the Office of Film and Literature Classification from any member of parliament?
Senator Ellison—I do not think that is unusual, Senator Schacht. I might just say that if a member had a concern I think they would write to the minister responsible, which would be the Attorney-General. That is a question that I am taking on notice, to see what communications he received.
Senator SCHACHT—So will you take that on notice again. Let us make sure we get this clear: the question is that you will provide details of how many members of parliament wrote. I want not just a generic answer saying he received 21 comment submissions but actually who he got them from. Senator Ellison—I would place a caveat on that last one, because—
Senator SCHACHT—Oh, yes. Here it comes.
Senator Ellison—The people who made that might not want that to be made public. It might have been in confidence to the Attorney. There is a privacy aspect. Some of the people might have—
Senator SCHACHT—You are developing a star chamber system.
Senator Ellison—No, it is not. It is called courtesy to those people who sent communications to the Attorney-General. You asked for a number before. Now you are asking for the identities of the people. I will certainly take that on notice. There is no question of that, but whether we will provide the identities of the people who contacted the Attorney- General that is something which the Attorney-General will decide.
Senator SCHACHT—Again, this is a deficiency in the act. The parliament has passed the act and has to take responsibility for a deficiency in which unknown people or numbers of people or community organisations, under the claim of privacy, do not wish to be identified as complaining about the movie.
Senator ELLISON—I have not said anybody does not want to be identified. But we had a privacy commissioner here yesterday. He was there for a very good reason. There are some individual Australians who write to a member of parliament who might not want that to be made public, for very good reasons.
Senator SCHACHT—But they are asking for a public process to take a decision in a democracy to ban something, to prohibit something. I think it is not an unreasonable request that, for transparency reasons, the community know who is complaining.
Senator ELLISON—I will take that up with the Attorney and get back to the committee. S
enator SCHACHT—Okay. Mr Clark, several weeks ago you gave me the courtesy of taking a phone call from me and were quite forthcoming in information you gave to me about process of the office and this particular case. You told me, and it is now on the record elsewhere, that the board voted 6-5 to give it an R18 classification, which I think Senator Harradine confirmed last night. Is that correct?
Mr Clark—That is correct.
Senator SCHACHT—Can you inform us who the six were and who the five were?
Mr Clark—The practice of the office has not been to give the names of how individuals voted on the board. I would prefer to maintain that protocol. It is an issue that the board feel strongly about. In their view, they do not want to be the subject of undue pressure from any direction and therefore they prefer the actual voting pattern of individuals to be private.
Senator SCHACHT—Last night Senator Harradine raised an issue—and the minister actually responded—about the Classification Review Board. He said it should be taken as a superior ‘court’ in that you should now take note of the precedent they have set. But if it is any sort of court—using Senator Harradine’s view—judges identify themselves as to which way they vote in a decision. If it is a full bench, they identify 4-3, or 3-2. If that is good enough for Senator Harradine to raise in that argument, why isn’t it good enough for the board to identify 6-5?
Mr Clark—The board are appointed as members of the community to represent the community. They are not lawyers and they are not judges. They are community representatives there to broadly reflect community views. It is a very different situation to a court. As I say, it is their preference that that remains that way. They feel less vulnerable, if you like, to undue pressure.
Senator SCHACHT—I disagree with Senator Harradine, though he raised it as a point, about precedent. This is not a court. But you say ‘represent community standards’. I am a member of the community. There are 19.5 million Australians out there, and you are taking decisions that affect what they can see, hear and read in their daily lives. Don’t they have a right to know which members of the board are voting on various decisions and therefore make a judgment about your performance?
Mr Clark—As I say, the issue is one where it is the preference of the board. I have talked about this with them in terms of making available the names on voting, and it is something that they prefer not to do.
Senator SCHACHT—Can you take it on notice that I would ask that the board come back either on notice or at the next hearing, at which I will not be present, with a statement explaining why they think it is preferable not to identify themselves as to how they voted.
Mr Clark—Certainly. I am very happy to do that.
Senator SCHACHT—Can you tell me the names of the four members of the review board who reviewed Baise-Moi. I can’t say the meaning in English; I got a ruling from the President of the Senate the other day that you can say it in French but if you say it in English it is unparliamentary. It is the most absurd ruling that I have seen that you cannot say it in English, but anyone can say it in French and it means the same thing. Nevertheless, I cannot say it, apparently.
Senator HARRADINE—I raise a point of order. I have not seen the President’s ruling, but a reflection has been made on her. She is not here to defend herself, and it is quite inappropriate for Senator Schacht to reflect on the President or a ruling.
Senator SCHACHT—On that point of order, when the President made her statement in the Senate on the last Thursday night—the last day of sitting—I responded and made it very clear that, though I accepted her ruling, I disagreed with it very strongly as being absurd.
Senator HARRADINE—This forum is to seek information from the officers.
CHAIR—Indeed it is. Senator Schacht, I do not think it is appropriate for you to reflect on a ruling of the President. If you wish to make any imputations in relation to that—
Senator SCHACHT—I did nothing more than I did in the Senate. I will move on. Who were the four on the review board who dealt with Baise-Moi?
Mr Clark—The four members on the panel were the convenor of the review board, Ms Maureen Shelley; Mr Jonathan O’Dea, who is the deputy convenor; Ms Robin Harvey; and Ms Kathryn Smith.
Senator SCHACHT—With regard to Ms Shelley, from the annual report which ended 30 June—
Mr Clark—She in fact has been appointed since that time.
Senator SCHACHT—Were any of those members previously on the Classification Board itself.
Mr Clark—Kathryn Smith was previously a member of the Classification Board.
Senator SCHACHT—Minister, is there any particular reason why someone would go from being a member of the Classification Board to being on the Classification Review Board?
Senator Ellison—I have no knowledge as to that or the reasons behind it.
Mr Clark—When Ms Smith resigned from the board, she advised me that she wanted to do other things in her life. She was a part-time member, but she did not wish to continue that longer commitment to the board.
Senator SCHACHT—Has it happened before that someone has resigned from the Classification Board and then been appointed to the Classification Review Board?
Mr Clark—No, it has not happened.
Senator SCHACHT—Minister, is there a situation here where you might say that someone is at one level and then gets appointed to the review board? It is not so much a conflict of interest, but they have had one experience and then they go on to be on the review board, judging their previous peers’ performance.
Senator Ellison—It happens every day in the judiciary.
Senator SCHACHT—We are not dealing with the judiciary, and I have accepted that point.
Senator Ellison—It is an administrative process. It is quite normal for that to occur. People are involved in one body and then are promoted to another body of review which is involved in reviewing the previous body on which they sat. In the administrative law, in the administrative process, you see that all the time.
Senator SCHACHT—Mr Clark, the decision of the review board was 4-0. Is that correct?
Mr Clark—That is correct.
Senator SCHACHT—Therefore, on this occasion, I know exactly how four members of the review board voted and, if it was a unanimous decision of the Classification Board, I would know exactly how the members of that board voted. So we do not have a decision where it is automatic that you refuse to divulge how people voted. If it is unanimous one way or the other, we know exactly how they voted. Isn’t that an inconsistency in your position?
Mr Clark—It would appear that way, but I still express the view that the board has taken. I have taken on notice your request, and we will come back with that statement.
Senator SCHACHT—And you will take on board the obvious inconsistency that, if it is a unanimous decision of either the Classification Board or the Classification Review Board, we all know exactly how they voted.
Mr Clark—Yes, I understand that.
Senator SCHACHT—Again, Mr Clark, I acknowledge that you were very generous in the time you gave me in explaining some of the process some weeks ago. I asked you at that time—and I will ask it here because I think it ought to go on the record so that people understand it—once the review board made the decision, who passed the decision on in administrative terms to each of the states to carry it out?
Mr Clark—The obligations under the act are that the applicant be informed and the original applicant be informed. The OFLC advised the states and territories of that decision that afternoon. In addition to that, the original applicant for the classification has advised me that he advised the cinemas that day of the review board decision.
Senator SCHACHT—Who did that?
Mr Clark—Mr Spratt, who is the original applicant for the classification of the film.
Senator SCHACHT—So the person who sought a classification, once the review board had turned it over, then himself informed the cinemas who were showing it; is that correct?
Mr Clark—That is what he advised me.
Senator SCHACHT—Who are the people that you advise in each state? Do you send a letter to the Attorney-General of each state or to the censorship minister? Where do you send the message?
Mr Clark—The message goes to the censorship official in each state and territory.
Senator SCHACHT—We have a censorship official in each state?
Mr Clark—There is an officer who is involved with the classification responsibilities of the states and territories.
Senator SCHACHT—For example, in New South Wales who is that officer?
Mr Clark—In New South Wales it is Mr Andrew Osborne, who is from the Attorney- General’s Department.
Senator SCHACHT—What knowledge of censorship does he have?
Mr Clark—He is the officer responsible for the New South Wales act and he is responsible for the liaison with the Office of Film and Literature Classification.
Senator SCHACHT—So has he been delegated that job by the New South Wales government?
Mr Clark—By the department, yes.
Senator SCHACHT—By the department?
Mr Clark—By the Attorney-General’s Department; he is a member of the department.
Senator SCHACHT—You called him a censorship officer.
Mr Clark—It is a curious situation that there is a hangover: we haven’t got to calling them classification officials yet.
Senator SCHACHT—Would you take it on notice to provide to the committee the name of the person in each state and territory who is the delegated officer that you contact to let them know the outcome of a decision?
Senator SCHACHT—Is that officer then required—by their complementary legislation or the act they have to establish the censorship regime in Australia—to inform the police to go and check that cinemas are not showing it?
Mr Clark—The Commonwealth responsibility is finished once that advice is given to the states and territories. The procedures adopted by each state and territory will vary, and I am afraid that I would not be competent to comment on the procedures adopted at the enforcement level within the states and territories.
Senator SCHACHT—Mr Carr, the Premier of New South Wales, made it quite clear in public statements that he thought the decision of the review board was wrong; I think he made more colourful descriptions than that but let us just say that he disagreed with it. He has a piece of legislation that says his state administration has to carry out the decision of the review board.
Mr Clark—That is correct.
Senator SCHACHT—But, if he wanted to constitutionally amend that, he has every right to do so.
Mr Clark—The enforcement legislation is state legislation.
Senator SCHACHT—So, if he wanted to amend it, it might mean the end of a national system of censorship or whatever you want to call it. If one state decided to do that, which constitutionally they are able to do, that would be the end of the national system.
Mr Clark—It may not mean the end of it; I would be reluctant to see that happen. Some states have reserve powers in relation to classification matters, but not all states.
Senator SCHACHT—But, under the Constitution of Australia, no power was given to the federal parliament.
Senator SCHACHT—Other than importing. Do you inform Customs of all your decisions?
Mr Clark—Customs and OFLC have an agreement in relation to providing them advice under their legislation; we provide that advice to them on application. Additionally, they have access to our web site and our classification decisions.
Senator SCHACHT—Is there a dedicated officer in Customs who is, in generic terms, a censorship officer?
Mr Clark—No, there is not.
Senator SCHACHT—Who do you send the information to in Customs, or do you say, ‘Read the web site’?
Mr Clark—We do not directly send information unless it is a specific application; otherwise they do have access to our database.
Senator SCHACHT—Would they have the right to go and seize copies of Baise-Moi?
Mr Clark—They would seize copies of Baise-Moi if they were imported, yes.
Senator SCHACHT—Copies are already in the country. Do they have the power now to go and seize them?
Mr Clark—Not as I understand it, but once again it is really a question for Customs as to the exercise of their powers.
Senator SCHACHT—As the movie now does not have any classification at all, is it illegal for any of the distributors to still hold a copy of the movie in their possession?
Mr Clark—My understanding is that to possess a copy of the film is not illegal but to exhibit it is illegal.
Senator SCHACHT—Is that the same with X-rated videos, that you can hold a nonclassified X-rated video but so long as you do not show it that is not against the law if it is not classified?
Mr Clark—If it is not classified.
Senator SCHACHT—So I can import a non-classified video and so long as I do not show it to myself or anyone else it is not illegal.
Mr Clark—So long as you do not show it to anyone else. Once again, it is up to whether the matter is seized at the border.
Senator SCHACHT—But in Australia now you will send a note to the distributor that he cannot even have a private showing of Baise-Moi for him and his executives.
Mr Clark—I will not be sending a note. The enforcement is a state matter.
Senator SCHACHT—I just want to get this straight. I know it is a state matter. The police can go around to the distributor of Baise-Moi—I forget the name of the company; you might remind me of it—
Mr Clark—Potential Films.
Senator SCHACHT—Potential Films—they have an office in Sydney or Melbourne.
Senator SCHACHT—I presume they have asked for all of the copies of the movie to be returned to them because it is their property—right?
Mr Clark—I assume so.
Senator SCHACHT—If they had a private showing at their private cinema to see, for example, what they could do to the movie to remove the offending parts—such as happened in Great Britain—they are then in contravention of the state law and can be charged. Is that correct?
Mr Clark—That is correct.
Senator SCHACHT—I think you might see the point that this system is ludicrous—that they can hold the movie but if the chief executive had a private showing for himself alone he now breaks the law.
Mr Clark—Sorry, Senator—not alone. But if he intends to sell or exhibit the film—and exhibit in that private circumstance apart from himself alone I would want to take more advice on—
Senator SCHACHT—I think you should!
Mr Clark—it would then be a breach.
Senator SCHACHT—From what you know of state law, would the police have the power in Victoria to go around to his office and confiscate the movie?
Mr Clark—I would really prefer not to get into state law. But my understanding is no, that it would not be the case. It really is state legislation.
Senator SCHACHT—Let us just get back to this. If someone in Australia made a movie that they clearly knew would not get classification under the rules because of the content—it had bestiality or paedophilia in it; clearly illegal—apart from the fact that making it was illegal, if they held it in their possession and showed it to no-one else but themselves, are you also saying that that is not a breach of the act?
Mr Clark—Not of the classification legislation, but it could well be a breach of other legislation.
Senator SCHACHT—Other legislation, but it is not a breach of the classification act. This just continues to show the lunacy and the ludicrous nature of some of this once you get into censorship—and Baise-Moi has exposed it. I want to get back to Customs. As a former minister for Customs, I was always bemused by the fact that they had certain powers. Once it is inside the country, can they use any of their warrants or standing powers of seizure to go and seize something they believe is contraband and has been smuggled in?
Mr Clark—I really cannot answer that question.
Senator SCHACHT—Surely, you must—
CHAIR—Senator Schacht, I think Mr Clark is helping to the extent of his capacity in his position as the head of the Office of Film and Literature Classification. Your questions, both in relation to state law and the application of customs law, go extensively outside Mr Clark’s areas of responsibility. In relation to the customs questions, you of course will be able to ask those of Customs in this very hearing. In relation to the other issues, if there are matters you wish to place on notice, I am sure the department will follow those up for you.
Senator SCHACHT—I will ask Customs but, in the meantime, take on notice and come back to us on what you do to inform Customs of your arrangements when you make a decision that a film does not have a classification and that if it is coming through the border it should be seized.
Mr Clark—The advice is given via the web site. As far as I am aware, we had inquiries from Customs within days of that decision in relation to this film.
Senator SCHACHT—What was their query?
Mr Clark—They had encountered copies of the film being imported into the country and confirmed advice that in fact that film had been refused classification.
Senator SCHACHT—They sought your advice and then, when they got your advice, they seized those copies of the film?
Mr Clark—I cannot answer that, Senator. I am aware that they sought advice as to the final classification of the film.
Senator SCHACHT—Were they tapes or commercial quality film that were coming in?
Mr Clark—They were DVDs.
Senator SCHACHT—And you do not know whether they seized them or not?
Mr Clark—No. Once a classification decision has been made and they have that decision, on the basis of the classification they will make a decision to seize material, because it would be illegal to import it. So it is an automatic process in terms of the arrangements we have with Customs.
Senator SCHACHT—When they seize it, using your decision, do they return the seized material to you or do they keep it for themselves and destroy it? Do you know?
Mr Clark—It does not come to us. That is their process and their decision.
Senator SCHACHT—Do you know what happens in Customs?
Senator SCHACHT—Mr Clark, it was said in the media that between your classification—giving an R18+—and when the Classification Review Board banned it, something like 50,000 Australians, according to the distributors, went and saw the movie. Do you have any reason to dispute that figure?
Senator SCHACHT—It might be 40,000 or 52,000, but it is not a figure that you would dispute?
Mr Clark—I have no knowledge other than what I have read in the media.
Senator SCHACHT—Presumably, that is the correct figure. Of the 50,000, during that period of three or four weeks that it was shown, how many complaints did you receive from people who saw the movie and then said they wanted it banned?
Mr Clark—I know there were, in the total period of time before and since, a couple of complaints from people who actually went to the film. There were one or two.
Senator SCHACHT—One or two out of 50,000 people complained about the movie after they saw it?
Mr Clark—To the best of my knowledge, of those who had seen the film, I think there were one or two.
Senator SCHACHT—Do you keep records?
Mr Clark—We do.
Senator SCHACHT—So you will be able to take it on notice and specifically tell us that two people who saw the movie complained about it. So, from 50,000, that means 49,998 did not complain.
Mr Clark—Correct. Senator SCHACHT—Does that by definition mean that the 49,998 are deviant, sexually promiscuous and violently oriented, because they did not complain?
CHAIR—Senator Schacht, I am not sure that that is a question that Mr Clark is in any position to answer. If it is an assessment that you wish to make, then that is a matter for you.
Senator SCHACHT—Mr Clark said earlier—because he has to say this; it is in the legislation—that the board tries to represent community standards. I find it interesting that two people who saw the movie complained after they saw it and 49,998 who saw it did not complain. I can make an extrapolation that maybe the Australian community believes that it is not unreasonable for the movie to be exhibited under an R18+ classification.
CHAIR—You can make that extrapolation,
Senator Schacht. The point I was making was in relation to the questions you were asking of Mr Clark.
Senator SCHACHT—Mr Clark, you said before that the members and part-time members of the review board are selected to reflect community standards, and in making your judgments you reflect community standards.
Mr Clark—They are selected to broadly represent the Australian community and as such the guidelines and the legislation talk about community standards. But they broadly represent the Australian community.
Senator SCHACHT—Do you realise that more people on the review board—four of them—said it should be banned than of the 50,000 who actually saw it? That is a fact, isn’t it?
Senator Ellison—You are not taking into account the rest of the population who did not see it and who might have wanted to see it banned. There was community concern about this film. Some of the reviews of it were not exactly complimentary, were they?
Senator SCHACHT—That is the very point, Minister. A man in Adelaide—one of your Liberal members—was demonstrating outside the theatre in Adelaide, wanting the film to be banned. When they interviewed people who had been in to see it, most of them said they did not like the movie but not one of them said it should be banned. They said that adults should make up their own minds. I thought that was a pretty commonsense attitude. The people who wanted it banned had not seen it. It is a ludicrous situation.
Senator Ellison—Things are banned without the whole population having to see them. You know that; it has been the system for some time. The community has not called for a committee of 18 million people to see a film before they make a decision as to whether it should be banned or not. You entrust that to responsible individuals.
Senator SCHACHT—It is true that on most occasions you do not have any empirical evidence from the community about films that have been banned before they have even been distributed. Yes, people have to make a judgment. I understand that. There is material in Australia which under law has always been banned, and I do not think there is much argument that the community is pretty well relaxed about that. Those rules in the past have been pretty good. But we have now had the example of a sample of 50,000 Australians of which two took the trouble to complain to Mr Clark’s office about the film. Mr Clark, I will put it around the other way. It might make it easier for you or for the others who want to ban it. Did any of the 49,998 people who saw the movie send you messages to say that it should not be banned?
Mr Clark—This answer is not specific to that, but there has been a large body of correspondence to the office in relation to both decisions, both for and against the decision by the board and by the Classification Review Board.
Senator SCHACHT—During the month or three weeks the movie was shown before it was banned, just out of observation did you notice whether there was any increase in Australia in sex crimes, in murder or in mayhem?
Senator Ellison—I do not think that that is Mr Clark’s area of responsibility. There are others who—
Senator SCHACHT—He represents community standards.
Senator Ellison—You are not asking about community standards there; you are asking about trends in crime. We might have to get Dr Greycar from the Australian Institute of Criminology to do a paper on it or something, but that takes forensic analysis, and you are asking this witness to make a statement to this committee about trends in crime and sexual behaviour.
Senator SCHACHT—In some cases I think the parliament has badly drafted the legislation, and that has put Mr Clark and his office in a difficult position about community standards. I acknowledge that. But they are there to try to judge what relevant community standards are. In the broader picture, maybe that is why initially they gave a vote of 6-5 in favour of the movie. They thought that Australians could watch it and not go out and be, shall we say, aroused sexually or encouraged to commit violence. That is what I am interested in. If they are going to look at this broad community standard, what other evidence is there around that the 50,000 people who saw it were corrupted by it?
Senator Ellison—You have to remember, Senator Schacht, that those 50,000 people wanted to see the film and they went to see it. You are relying upon them as a sample base. You know very well from your own experience campaigning that a true sample is one that is picked at random across the community. You are relying on a base of 50,000 people who went to see the film because they wanted to see it. A lot of people did not go and see the film because they did not want to see it.
Senator SCHACHT—Good; that is choice in a democracy.
Senator Ellison—There is also the question of standards, and we have had those and you have recognised that yourself. There are laws to recognise community standards and this is a situation where the process recognised that and banned the film.
Senator SCHACHT—This is a process in which, over the last several years, during your government in particular, the law has been amended to make it more likely that this outcome would occur—that is, so that those people who have an ideological position in favour of censorship to achieve certain moral outcomes have more success. I accept that; they have had a victory. But I do not think the majority of Australians overwhelmingly accept that someone else should dictate in this sort of area what they have a right to see, read and do at this level. The parliament made the decision. I disagreed with it and I have to admit I was not successful in my own party. When these amendments were put before the parliament I thought we should oppose them. I was not successful, but that is another argument inside the Labor Party. The parliament has now made retrograde decisions that have put Mr Clark and his board in a stupid position not of his own making. I acknowledge that. Mr Clark, I have a question about film festivals. In South Australia the new Premier has just announced funding for a major new international film festival to be held in Adelaide every two years in the alternate years to the very successful Adelaide Festival of Arts. What is the arrangement if that film festival wants to have an exhibition as part of the range of movies and show Baise-Moi? It has now been banned in Australia at a film festival level.
Mr Clark—That is correct, but under the South Australian residual powers the granting of an exemption for the purposes of a festival is under state legislation. In most other states and territories that exemption for festivals is given by the OFLC. In the South Australian case it is not, so it would be a South Australian decision in relation to that.
Senator SCHACHT—Thank goodness for that. The new Premier, Mike Rann, says he is a dedicated believer in people like Don Dunstan, who believed that adults should have the mature ability to make their own judgments. If he wanted to, Baise-Moi could be given an exemption to be shown at the Adelaide film festival next year.
Mr Clark—I am uncertain as to the exemption provisions under the state legislation.
Senator SCHACHT—It would be ironic if that happened because I think the state of South Australia put that exemption in to do the exact opposite. Is that correct?
Mr Clark—I do not know the intent, but it can work in both directions.
Senator SCHACHT—Yes. In 1981 the then Liberal Attorney-General of South Australia did not like a movie called Bad Arse or something which was to be shown at the then Adelaide film festival. It had something to do with drugs. He banned it of his own volition. It wrecked the Adelaide film festival and it collapsed because no director of a movie was going to put their movies through a state attorney-general’s view of what was artistic or not. So he amended it. Ironically, Mike Rann now has the ability under state legislation to get round the Ms Drapers of the world who want to ban everything in sight. Is that correct?
Senator HARRADINE—Madam Chair, could I please take a point of order.
Mr Clark—Senator Schacht, I cannot comment on that.
Senator HARRADINE—Madam Chair, I raise a point of order.
CHAIR—Senator Harradine, I was just about to come to you. You wish to raise a point of order.
Senator HARRADINE—I thought you may have corrected Senator Schacht. He reflected on a member of the House of Representatives.
CHAIR—He made a comment about Ms Draper, the member for Makino, in his statements to Mr Clark. I was about to say that it would be helpful, Senator Schacht, given the discussion we had previously, if you would refrain from doing that. I take the point that Senator Harradine has raised. The members to whom you have made reference are not in a position to respond to those references in these hearings, and on that basis it would be helpful if you avoided making those references.
Senator SCHACHT—I referred to the member’s ideological position; I did not refer to her personally. I said that Ms Draper—
CHAIR—I heard what you said, Senator Schacht; there is no need to repeat it.
Senator SCHACHT—Ms Draper is the South Australian federal member for Makin—
CHAIR—Could you continue with your questions to Mr Clark?
Senator SCHACHT—The question is, I would think she would be quite delighted to say that she had—
CHAIR—Senator Schacht, I do not think there is any need to canvass that any further.
Senator SCHACHT—Okay. Has any other state got an exemption for film festivals the way South Australia has?
Mr Clark—No, they have not.
Senator SCHACHT—It is only the South Australian experience which I— Mr Clark—I am certain because I know there was an amendment in Tasmania, which I think brought it into line with most other states and territories.
Senator SCHACHT—There was an amendment in Tasmania to remove the exemption?
Mr Clark—No. There was an amendment to their act and part of that was that we would do their exemptions for festivals in future.
Senator SCHACHT—I would like to ask about the members of the board—not the review board but the board that does the classification. You have in your report that members of the board either individually or as small panels review a lot of material every week, every month et cetera. Mr Clark—Yes, that is correct.
Senator SCHACHT—They see some, to say the least, distasteful material and a lot of awful material. Is that correct? Mr Clark—There is a lot of material they encounter which is extremely confronting.
Senator SCHACHT—Why are those people better able to withstand watching these very confronting things every day and yet not be psychologically affected, or not become affected in a way that creates antisocial activity, but the rest of the Australian population cannot make the same judgment?
Senator SCHACHT—What is so special about you, Mr Clark, and the others that you can see all of this material, day in and day out, and yet you do not go out and commit crimes or conduct antisocial activity?
Mr Clark—I do not think it is a question of anything special. The members of the board have a significant amount of training to undertake their activities. They are affected by the material in the sense that they can occasionally require support and counselling in relation to it. They consider they are serving the Australian community—they take their responsibilities very seriously—and for a period of time in their lives they consider that to be something very special to do.
Senator SCHACHT—But they are ordinary Australians?
Mr Clark—They are very much ordinary Australians.
Senator SCHACHT—You say that occasionally or regularly they have to get counselling?
Mr Clark—That service is available to them. We do not measure that, but it is available if they wish.
Senator SCHACHT—Do you know, without naming anybody—that would be an invasion of privacy—how many times individual members have sought regular counselling?
Mr Clark—No, it is not something that we keep records on. That service is also available to other members of staff.
Senator Ellison—I think, Madam Chair, we are straying onto dangerous ground here.
Senator SCHACHT—I understand that, Minister.
CHAIR—We are straying into an area of great sensitivity; that is certainly true.
Senator SCHACHT—I just wanted to ask: the counselling is not mandatory but it is available and it is up to the individual to seek it?
Mr Clark—There are two processes: one is debriefing where they talk about the experience, and the other is that there is another service available if they wish. It is not just for board members but for other members of staff who encounter material. We do not distinguish between the two groups.
Senator SCHACHT—Is the counselling done by other people within the office or—
Mr Clark—No, we have a service provider who is available to—
Senator SCHACHT—And they are on a retainer to provide that?
Senator SCHACHT—I just want to say, Mr Clark, as one of those who have tried to argue in this place for a long, long time a different view from that which others have, I actually trust the Australian people’s judgment; they themselves should be able to overwhelmingly make a decision. I think you and your staff at the Office of Film and Literature Classification have often been put in an invidious position by a very small minority who are trying to restrict what adults can make their own judgment about. I have always said that I do not blame the office and the staff that you have. I think the parliament has made mistakes in legislation. A very small minority, who do not reflect the Australian public, have put you in an invidious position. I wish you luck in the future and I hope that, at some stage in the future, the Australian parliament amends the legislation to make it easier for you to do your job on behalf of the great majority of Australians.
CHAIR—We will take that as a statement, Senator Schacht.
Senator HARRADINE—I have a couple of questions on the matter of transparency. Is it not a fact that the provisions of the legislation limit standing to a certain group of people: those people aggrieved?
Mr Clark—This is to the review board?
Mr Clark—Yes, Senator.
Senator HARRADINE—In this particular case, community groups that were very strongly concerned and that wished to openly and transparently take the matter to the review board were unable to do so because of the fact that the persons aggrieved by the decision of the OFLC were the producers or the maker of the film? Mr Clark—A normal application for a review would come from the applicant, which is usually the producer or, most often, the distributor of a film. There is a 30-day period, after initial classification, within which an application for review can be made. That application can also be made by state and territory ministers or the Commonwealth Attorney-General. There is a provision, under the recent amendments, for persons aggrieved to prove standing to the classification review board but, in doing that, they must make a formal application for a review and then establish their standing before the review board. That, to date, has not happened. But, as I say, it is only a recent amendment.
Senator HARRADINE—Once these guidelines are in, they are in for eight years—it was 1994 the last time.
Mr Clark—That was the computer games. The intent of the system is that the guidelines are reviewed in serial manner. There was to be a review of the computer games guidelines, but ministers made the decision, in the light of convergent media, to review computer games and films and videos in the same review to enable consideration of combined guidelines for the two mediums.
Senator HARRADINE—Thank you, Mr Clark. I again come back to the question of a public hearing once the guidelines are in a form to present to the ministers. You mentioned last night that that might be a matter for next time. I wonder whether you could raise this with the ministers at the meeting—or perhaps it is not appropriate for me to do it.
Senator Ellison—I will undertake to take up with the Attorney-General that you requested he raise that at the ministerial council with the other ministers. I think that is the appropriate course. I will do that.
CHAIR—Thank you. There being no further questions to the Office of Film and Literature Classification, Mr Clark, thank you very much. I thank the officers very much for assisting the committee both very late last night and first thing this morning. Just to clarify matters to do with the program, I advise the committee and officers that the committee will work through the programs, continuing in the order in which they appear and endeavouring to reach by 1 p.m. the Australian Protective Service. Either way, we will commence after lunch, at 2 p.m., with the Australian Federal Police. If there is any part of a preceding component of the estimates that we have not examined, we will return to that after examination of the Australian Federal Police. I understand that message is being conveyed to the Australian Federal Police. [10.07 a.m.]
Fred Nile was really on the case of BAISE-MOI when in June 2002 he asked Labor's Michael Costa to consider re-establishing a vice squad to help track down illegal copies of the film.
NSW LEGISLATIVE COUNCIL
Thursday 6 June 2002
Reverend the Hon. FRED NILE: I ask the Minister for Police a question without notice. Is it a fact that the new New South Wales Commissioner of Police, Mr Maroney, is, with the Minister's support, re-establishing a number of specialised police squads, such as for armed hold-up and car theft, which will greatly improve the efficiency and expertise of the police response to crime?
Is it a fact that one remaining area of major concern is the implementation of laws relating to vice, such as prostitution, brothels, live sex shows, strip joints, child pornography, X-rated videos, unclassified films such as Baise-Moi, unclassified videos, et cetera?
Will the Minister authorise and support the re-formation of the vice squad to protect community standards and family life, with untouchable police officers to enforce specialised vice laws which are beyond the usual expertise of local police officers?
Not content with BAISE-MOI's Refused Classification rating, Fred Nile turned his attention to those who may try to import DVDs. In an August 2002 letter from the Assistant Advisor to the Attorney-General (previously available on-line at pastor.net.au), Mr. Nile was informed that Customs were aware that BAISE-MOI could be purchased from overseas and its officers have been informed to look out for copies.
He is also informed that complaints about advertisements for the film appearing on Amazon should be addressed to the Minister for Communications, Information Technology and the Arts.
Dear Mr Nile
I refer to your letter of 26 May 2002 to the Attorney-General, the Hon Daryl Williams AM QC MP, regarding the availability of video and DVD versions of Baise-Moi through the internet and the possible importation of the film. The Attorney-General has asked me to respond to you on his behalf.
As you are aware, the Classification Review Board classified the film Baise-Moi ‘RC’ (Refused Classification) for public exhibition on 10 May 2002. (Editor: Film was banned from public screening)
In your letter you express concern that Baise- Moi could be imported into Australia and made available through video shops. The Australian Customs Service is responsible for decisions concerning the status of material imported into Australia. An administrative agreement between the OFLC and Customs states, in part that goods classified ‘RC’ by the Board will be seized by Customs upon interception.
I am advised that Customs is aware that Baise-Moi can be purchased overseas through internet sites. In response, Customs has taken appropriate steps to advise operational Customs Officers of the prohibited status of the film and the possible methods of its importation into Australia. Should copies of the film escape interception by Customs and be successfully imported into the country enforcement becomes a matter for State and Territory authorities.
Regarding your concerns about Baise- Moi’s advertisement for sale by Amazon.com, the regulation of internet content is not within the Attorney-General’s portfolio of responsibility, but falls within the responsibilities of the Minister for Communications, Information Technology and the Arts, Senator the Hon Richard Alston.
The Broadcasting Services Amendment (Online Services) Act 1999 (The Broadcasting Act) came into effect on 1 January 2000. The Broadcasting Act amends the Broadcasting Services Act 1992 to provide for the regulation of online services through a complaints-based scheme.
The scheme is a administered by the Australian Broadcasting Authority (the ABA). In accordance with the Broadcasting Act, if the ABA receives a valid complaint about Australian-hosted online content, the ABA may refer the material to the Classification Board for classification. The Board classifies the content in accordance with the existing classification guidelines for films or computer games, as appropriate.
I hope this is of assistance to you.
Commonwealth Office of the Attorney General
29 August 02
In April 2003, the Victorian Police submitted two copies of BAISE-MOI to the OFLC who unsurprisingly gave them RC ratings. One was a 74m VCD, and the other a VHS dupe. The 123m tape also contained A DOCUMENTARY ON THE MAKING OF GORE VIDAL'S CALIGULA.
These joined the copy that was reportedly taken by the West Australian customs service in mid-2001.
The Australian Customs Service does not publicise the films that they confiscate. We have always found this to be very unfair to anyone who attempts to do the right thing, and check the status of a film before ordering.
For example, a member of the public may wish to import a certain film. They consult the Classification Board’s database, and because there has never been an Australian distributor, they find no listing. They go ahead with the order, and customs seize the film as they have done on previous occasions.
In the period 1997 to 1998, customs submitted 447 items to the Classification Board; by 2006 to 2007, this was down to four items. In their 2003 to 2004 Annual Report, the Classification Board explained the reason for this huge drop.
At the request of the ACS, nine sessions were held for ACS officers in Adelaide, Brisbane, Darwin, Melbourne, and Sydney, resulting in 137 people being trained.
Officers were trained in applying Regulation 4A of the Prohibited Imports Regulations, and comparing this regulation, and the refused classification category of the National Classification Code.
The training enables ACS officers to make decisions about intercepted material and only refer items to the Board where there is need for advice.
Obviously the training needs improving because we have heard of the ACS taking R18+ titles such as HIGH TENSION, OPERA, and VAMPYROS LESBOS.
The following list has been compiled in a number of ways. These include members of the public sending in details of their confiscations, forum posts, fanzines, court cases, web sites etc. Very occasionally ACS submissions such as NECROPHAGIA: THROUGH THE EYES OF THE DEAD appears in the Classification Board’s database. Please send in details of any confiscations you may have heard of.
This listing is not meant to encourage anyone to attempt to import a prohibited Item; it is more likely to act as a deterrent.
Please do not direct any questions about the workings of the ACS to this site. Question them directly.
Some of these films have since been passed uncut with R18+ ratings.
All titles have separate entries in our Film Censorship Database.
We take no responsibility for errors in this list.
See our Games Censorship Database for a list of video and computer games that have been confiscated by customs.
See our Book and Magazine Censorship Database for a list of publications that have been confiscated by customs.
On August 12, 2013, a 74m DVD of BAISE-MOI was again banned. The reason given was:
Film 1(a) The film is classified RC in accordance with the National Classification Code, Films Table, 1. (a) as films that "depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified."
Thanks to Potential Films for this copy of the full Classification Board report.
Reason For Decision: In making this decision, the Classification Board has applied the Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act), the National Classification Code (the Code) and the Guidelines for the Classification of Films 2012 (the Guidelines).
In the Board’s view this film warrants an ‘RC’ classification in accordance with item 1(a) of the films table of the National Classification Code: “
1. Films that:
(a) depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified;” will be Refused Classification.
The Board notes that this full-length feature has been previously classified RC in May 2002 for content that included explicit sexual violence, violence, actual sexual activity and scenes which “demean both men and women”.
This modified version has had the depiction of explicit penetration removed from the rape scene, which commences at approximately 9 minutes, however the remaining content of the film, which includes explicit sexual activity, implied sexual violence, sexualized violence and violence, remains unaltered.
Examples include but are not limited to the following:
At approximately 9 minutes, Manu and a friend are captured and gang raped. Manu’s friend is struck about the face and, bleeding, screams and struggles throughout her ordeal, while Manu lies placidly on the ground as her assailants rape her.
At approximately 32 minutes, a woman is grabbed and then shot in an alley. Repeated flashbacks to the shooting depict the woman bleeding heavily with blood splatter on the wall behind her head.
At approximately 33 minutes, Manu and Nadine have sex with two males in a hotel bedroom. This scene includes depictions of explicit fellatio and cunnilingus.
At approximately 38 minutes, Manu and Nadine shoot a gun seller. The scene cuts to an extreme close-up of Manu’s genital region as she squats over a bath. Blood pools in the bath as she tells Nadine that she used to deliberately stain “everything” to annoy her mother when she was younger.
At approximately 62 minutes, Manu and Nadine enter a “fuck club”. Various characters are viewed engaging in sexual activity, including explicit fellatio and penetration, before the two women begin shooting the patrons. One male is ordered onto his knees on the floor then to remove his pants and grunt like a pig. One of the women places the barrel of a handgun against his anus before the camera cuts to a close-up of the man’s face and the sound of a gunshot is heard.
The Guidelines for the Classification of Films 2012 (the Guidelines) state that, within the R 18+ classification, “sexual activity may be realistically simulated . . . the general rule is ‘simulation, yes – the real thing, no’ “, and, that “the impact of material classified R 18+ should not exceed high”. In the Board’s opinion the film contains a number of scenes of explicit sexual activity which exceed what can be accommodated within the R 18+ classification. Additionally, these scenes are juxtaposed with implied sexual violence, sexualized violence and violence, which results in an impact that is very high; once again exceeding what can be accommodated within the R 18+ classification.
Films containing depictions of consensual, sexually explicit activity can be accommodated within the legally restricted X 18+ classification. However, the Guidelines state that, within the X18+ classification, “no depiction of violence, sexual violence, sexualised violence or coercion is allowed in this category”. The film contains multiple depictions of implicit sexual violence, sexualized violence and violence and, as such, cannot be accommodated within the X 18+ classification.
In summary, as this film contains depictions of explicit sexual activity and sexual violence, sexualized violence and violence which are very high in impact and, as such, exceeds what can be accommodated within the R 18+ classification, and, as the film also contains violence, sexual violence and sexualized violence and, as such, cannot be accommodated within the X18+ classification, this material warrants Refused Classification in accordance with item 1(a) of the films table of the National Classification Code.
A minority of the Board is of the opinion that the film contains violence, sexual violence and actual sexual activity which do not exceed a high impact level. The film contains a strong narrative which justifies the inclusion of scenes which include explicit sexual activity and can therefore be accommodated within the R18+ classification category. The minority of the Board acknowledges that the film contains content which may be offensive to some sections of the adult community.
OTHER MATTERS CONSIDERED OR NOTED
The Board notes that the film’s grainy and low quality production values serve to obscure detail in a number of scenes.
This film is Refused Classification in accordance with item 1(a) of the films table of the National Classification Code.
This film is Refused Classification in accordance with item 1(a) of the films table of the National Classification Code.
In August 2013, a censored version of BAISE-MOI premiered on the World Movies channel as part of their FILMS THAT SHOCKED THE WORLD series.
Films That Shocked The World
worldmovies.com.au , July 27, 2013
They’re the movies that changed the face of cinema. They’ve been banned around the world and have been the cause of arrests, court cases and protests. They’ve caused moral outrage and countless newspaper headlines. Now, over one controversial week, World Movies brings you the Films That Shocked The World – all for the first time on Australian television.
We’re presenting the movies that others have told you that you can’t or shouldn’t see. From the film that invented modern-day pornography, to the movie that the Australian Classification Board banned for being too “graphic” in 2004, this is the essential collection of controversial cinema.
The week begins with the horror film that sparked outrage in 2009, The Human Centipede, followed by Larry Clark’s shocking tale of youth without hope – Kids. Don’t miss the 1980 horror film Cannibal Holocaust, the infamous Deep Throat and finally the international scandal of Baise-Moi.
Friday 23 August 9.30pm
Baise-Moi (France, 2000) - Australian Television Premiere
After being raped and witnessing the death of a close friend, two women go on a revenge road-trip of sex and murder. Controversial for its real sex and violence, this film was banned in Australian cinemas.
World Movies @WorldMovies
3:05 PM - 19 Aug 13
We'll be showing a R18+ version of Baise-moi that has been further edited to comply with the Australian classification standards.
Arthouse shocker 'Baise-moi', banned in Australia, screens on
World Movies tonight
sbs.com.au, Sep 23, 2016
One of the most notorious films in recent cinema - French arthouse shocker Baise-moi - gets a rare screening tonight (and Sunday) as part of week three of World Movies' Sexual Evolution.
Directed by Virginie Despentes and Coralie Trinh Thi and starring adult actresses Karen Lancaume and Raffaëla Anderson, the uncompromising thriller - which follows two disenchanted sex workers on a rampage of revenge - stirred up a nest of controversy when it arrived in Australian cinemas in early 2002, largely thanks to its brutal depiction of rape and hardcore, unsimulated on-screen sex.
Having been initially passed by censors with an R18+ rating, Baise-moi came under fire from Australian family groups, who lobbied to have the film banned from cinemas - and succeeded. The film was refused classification in May 2002 and ordered to be pulled from screens, though several cinemas in Sydney and Melbourne continued to play it. Baise-moi was banned again on DVD in 2013, and screened in an edited, R18+ version on World Movies that year.
In her 2002 review, Margaret Pomeranz called it "an uncompromising exploration of two women of the underclass angry at society in general and men in particular."
See for yourself what all the fuss was about: Baise-moi screens on World Movies tonight at 8:30pm and again at 1:45am Sunday morning
For another look at the banning of the film, see Baise-moi banned in Australia at Libertus. It includes the original October 2001 OFLC R-rating report where it was passed uncut, as well as submissions to the Review Board from Potential Films and the Australian Family Association.