Roadshow received an MA15+ (Adult Themes, Medium Level Sex Scene) rating for BIRTH in September 2004.
The Australian Family Association applied for a $3,470 fee waiver so that they could appeal against the rating. They were upset by a scene where Nicole Kidman shares a bath with a ten-year-old boy. Having already given them one fee waiver so that they could appeal against ANATOMY OF HELL, Des Clark this time refused. It was posted in the OFLC database on February 23rd 2005 as a Fee Waiver Refused S91.
Classification Board & Classification Review Board
Annual Report 2004-2005
Classification Review Board
During the course of the year, the Classification Review Board received a number of applications that were later withdrawn. A determination is not made on withdrawn applications, yet a considerable amount of time is spent by the Convenor and the secretariat on these applications.
Table 22: Applications to the Classification Review Board withdrawn
Review applicant: Australian Family Association
Reason for withdrawal: Fee Waiver Refused
The AFA quoted Des Clark as saying:
"the Australian Family Association, and the public represented by this group, have already received the benefit of a fee waiver this financial year on a previous occasion".
BIRTH had an Australian theatrical release in May 2005.
In February 2005, Robert Lawson, a Liberal member of the South Australian Legislative Council showed himself to be a supporter of the Festival of Light, and to be of the opinion that BIRTH was incorrectly classified.
South Australian Parliament
Monday 28 February 2005
CLASSIFICATION (PUBLICATIONS, FILMS AND COMPUTER GAMES) (TYPES OF CLASSIFICATIONS) AMENDMENT BILL
The Hon. R.D. LAWSON: There are a number of reservations—sometimes, serious reservations— expressed about the current system. In fact, some of the recent decisions in relation to the classification of movies by the Classification Review Board have been described as outrageous by the Festival of Light. Those decisions include the R rating for the film Nine Songs and the MA rating for the film Birth.
It is not surprising that from time to time the South Australian Attorney-General expresses his disagreement with classification matters. However, he rarely appears to exercise the power which he has to seek a review of classifications. Mrs Ros Phillips, the research officer for the Festival of Light, has indicated to me her dismay at the 2003 rewrite of the classification guidelines for films and computer games. In her view, recent classification decisions have shifted in a more permissive direction despite a written assurance from the Office of Film and Literature Classification to the effect that classification standards would remain unchanged after those new guidelines came into operation.
Notwithstanding the reservations that Mrs Phillips and others have expressed, we believe that the current system, with all its imperfections, is working satisfactorily. The fact that some ministers choose to express reservations about particular decisions of the classification board, but then refuse to take the steps open to them to have those reviewed, is really a comment on the commitment of a particular minister rather than an adverse comment on the system itself.
In March 2005, Kevin Lingard from the National Party spoke out against BIRTH in the Queensland Parliament.
Queensland 51ST PARLIAMENT
WEDNESDAY, 9 MARCH 2005
CRIMINAL CODE (CHILD PORNOGRAPHY AND ABUSE) AMENDMENT BILL
Second Reading Resumed from 24 November 2004 (see p. 3742).
Hon. KR LINGARD (Beaudesert—NPA) (4.59 pm): ......Another concern that the opposition has with these defences relates to the Commonwealth-state classification system for films, computer games et cetera. Generally this system seems to have been working at a standard that has general community acceptance. However, every so often something seems to slip through the system that arguably does not reflect reasonable community values. One recent example of concern is the film Birth, which is alleged to contain certain depictions of an actress in a potentially sexually compromising situation with a 10-year-old boy. Under the classification system that operates, there is a mechanism to have the initial classification reviewed at the request of the relevant minister. The Leader of the Opposition says that he hoped Minister Keech would react favourably to the requests that he has passed on to have the classification of this film reviewed in order to ensure that material that potentially involves the sexual exploitation of children does not seep through the system, thus lowering acceptable community standards. However, from letters he has seen that the minister has sent to citizens who have written to her, it seems that the minister is adopting the common standard of ministers in this area and refusing to utilise the review mechanism that the Commonwealth state classification system has built into it.
The Leader of the Opposition asks why the minister is allowing what is arguably sexual child exploitation material to be displayed in this film. Does she think that suggestions of sexual relations in films between adult females and young males represent acceptable community standards? Why is the minister refusing to utilise the relevant appeal mechanism to have the initial classification reviewed? Is this another example of a hands-off approach by a minister of the government?
Andrew Evans from the Religious Right Party, Family First had this to say.
South Australian LEGISLATIVE COUNCIL
Tuesday 3 May 2005
The Hon. A.L. EVANS: I would like to ask a real question, as you requested, Mr President. I seek leave to make a brief explanation before asking the Minister for Industry and Trade, representing the Attorney-General, a question about film classification.
The Hon. A.L. EVANS: Recently the film Birth opened in Adelaide cinemas. The movie is rated MA15+. The movie, Birth, stars Nicole Kidman playing the role of a woman who becomes convinced that a 10-year-old boy is the reincarnation of her dead husband. The movie includes a scene showing the naked actress in a bath with a 10-year-old boy who has an erotic obsession with her, and who has previously discussed having sex with her. Channel 9’s film reviewer, Kerry Bashford, said:
A young boy seeks out a man’s ex-wife and begins to have something of a romance with her. This is what has everyone talking, not to mention the nude scene in which Nicole Kidman shares a bath with the young boy who makes no secret of his admiration of her naked form.
In the light of growing reports of paedophilia in the community, including the case last year of a Melbourne school teacher who had a sexual relationship with a 15-yearold student, and a former Adelaide teacher who had unlawful sexual intercourse with two of his 17-year-old students, my questions to the Attorney-General are:
1. Is he aware that the Commonwealth Film Classification guidelines state that ‘Depictions of child sexual abuse or exploitative or offensive depictions involving a person who is or looks like a child under 16 will be refused classification’?
2. Is he aware that the MA15+ classification allows children of any age to see a film in this category as long as they are accompanied by their parent or adult guardian?
3. Is he aware that adult paedophiles might use Birth to groom children to consider child—adult sex as thinkable?
4. Will he refer Birth to the South Australian Classification Council for review of its apparent inappropriate MA15+ classification? If not, why not?
The Hon. P. HOLLOWAY (Minister for Industry and Trade): I will refer that question to the Attorney-General for his consideration and bring back a reply.
The Liberal's Elizabeth Cunningham spoke out against BIRTH in the Queensland Parliament.
Queensland 51ST PARLIAMENT
TUESDAY, 24 MAY 2005
Mrs LIZ CUNNINGHAM (Gladstone—Ind) (3.59 pm):
.....A number of constituents—and I add my support to their comments—have commended the Queensland government on changes that have been made and additional protection that has been given to children through the government’s various pieces of legislation in terms of the child safety department and Criminal Code changes. However, some of the recent decisions by the Classification Board have been contradictory and have undermined the hard work that has been done by the Queensland government in that regard. One person who contacted my office stated—
"The OFLC has given an MA rating to the new Nicole Kidman film ‘Birth'. This film concerns a widow, and a 10 year old boy who claims to be the reincarnation of her late husband. At one point, the film portrays the two in a bath together, naked, and while there they share a kiss ... One can imagine the delight of every paedophile at this portrayal of child pornography. About this scene, one reviewer said" —
and these are people used to seeing movies of all classifications—
"What is shown on-screen is a bold and clear representation of the double standard held between the sexes in Hollywood. Women are seldom thought of as paedophiles or molesters. It's generally not in the nature of a female human being. Imagine Robert De Niro sitting naked in a bathtub. Dakota Fanning walks in, looks at him ... and then strips ... to crawl into the tub with him. ... The message is clear: sexual relationships between adults and 10 year olds, as long as consent is there, is OK. The film has received mixed reviews, but as the star is seen as an acceptable role model for our young people, it is likely to have wide viewing." —
The film was given an MA tag. This writer and others have said that it should have received a much higher classification. The letter continues—
"... it will be seen by children, and eventually it will be available for home use on video. Our impressionable youth will therefore be thinking that this is acceptable: paedophiles and child-porn producers will be thinking up more ways to get child pornography accepted." —
Again, the writer and others commended the Labor government on its strengthening of protection for children but see these sorts of classifications by the Office of Film and Literature Classification as undermining the very strong moves that the government has made in an attempt to protect our children. The guidelines for the classification of films and computer games state that a film should be refused classification if it includes depictions of child sexual abuse or any other exploitative or offensive depictions involving a person who is or looks like a child under 16. It is the contention of this and other writers that the film Birth gives that intention. I believe that people have written to the minister with those concerns.
Having failed to have BIRTH banned in Australia, the Religious Right then turned to the South Australian Classification Council (SACC). This unnecessary organisation has the power to review ratings awarded by the Classification Board. In 2004, they agreed that I SPIT ON YOUR GRAVE should remain as an R18+, and DODGEBALL as M. Following complaints by the Religious Right, in 2005 they increased the rating of 9 SONGS from R18+ to X18+, and left the R18+ rating of MYSTERIOUS SKIN unchanged.
Their review of BIRTH agreed that the MA15+ rating should remain unchanged.
SOUTH AUSTRALIAN CLASSIFICATION COUNCIL
CLASSIFICATION OF THE FILM BIRTH BY JONATHAN GLAZER
A complaint was received by the Council, by letter dated 10 June 2005, that this film should be refused classification. It submitted that the film could be used by paedophiles to persuade children that sex between adults and children was acceptable. It submitted that the film contained exploitative and offensive depictions of a child.
The Council decided to view the film, and did so on 4 August 2005.
Anna is a young widow about to remarry. Her plans are disrupted when a boy aged 10 appears, claiming to be her dead husband. Complications arise for her as she comes to believe his claim.
The film is currently classified MA15+ in Australia. This means that children aged 15 and over may lawfully view or hire the film unaccompanied, but those under 15 cannot attend a screening or hire the film unless accompanied by a parent or guardian.
In the United Kingdom, the film was classified 15, meaning that no one younger than 15 may see it in a cinema or rent or buy it on video or DVD. In the United States, the advisory classification is 17, meaning that persons under that age are required to be accompanied by a parent or guardian. In New Zealand, the classification decision was ‘Objectionable except if the availability of the publication is restricted to persons who have attained the age of 16 years’.
The film was released in Australian cinemas on 26 April 2005 and on DVD in early August 2005. No member of the public has complained to the Council after viewing the film, nor has the Council heard from any parent or guardian whose child has seen the film. Critical reviews of the film are available on the Internet.
Matters to be considered in classification
1. The Classification (Publications Films and Computer Games) Act 1995, s. 19, says:
The matters to be taken into account by the Council or the Minister in making a decision on the classification of a publication, film or computer game include—
(a) the standards of morality, decency and propriety generally accepted by reasonable adults; and
(b) the literary, artistic or educational merit (if any) of the publication, film or game; and
(c) the general character of the publication, film or game, including whether it is of a medical, legal or scientific character; and
(d) the persons or class of persons to or amongst whom it is published or is intended or likely to be published.
Section 18 says:
Publications, films and computer games are to be classified by the Council or the Minister in accordance with the National Classification Code and the national classification guidelines.
Public standards of morality
This film contemplates the possibility of a romantic relationship between an adult and a child. The relationship is not one that Anna seeks. Rather, the possibility emerges because she comes to believe that Sean, though apparently a child, is really her husband in a child’s form. This belief gives rise to the dilemma of relating to him both as her beloved husband and as a ten-year-old stranger. Thus, she questions him about the possibility of a sexual relationship, but resolves this by deciding that they will wait until he is 21 and marry.
It is only while Anna is able to sustain her belief in his claim that she approaches the child as a potential romantic partner. Once she realizes that he is not her husband, she loses all interest in him. She is not presented as a paedophile.
The film does not present the interactions between Anna and Sean as acceptable but as problematic. Sean himself exhibits little emotion, while Anna endures mental anguish. Other characters, such as Anna’s fiancé and her mother, disbelieve Sean’s claim and try to disabuse Anna of her belief. Anna’s inability to dismiss Sean alienates her from those closest to her and threatens her relationships.
The Council thought that the Australian public is gravely concerned about child sexual abuse. A film that depicted actual child sexual abuse, or promoted sexual activity between adults and children, would not be tolerated by reasonable adults. The Council did not think, however, that a film would necessarily be refused classification only because it dealt with a theme of child sexual abuse. For example, the 1999 film Lolita is concerned with a romantic/sexual relationship between an adult and a child but was classified R18+.
The Council noted that an offensive or exploitative depiction of a child will result in an RC classification. It considered the particular scenes complained of, that in the bathtub1, the conversation about a possible sexual relationship, and the kiss on the lips. Clearly these depictions would offend some viewers. The Council did not, however, consider them to be of such impact that the film should be banned.
1 The Council understands that the film was not actually made by having the adult and the child naked together in the bath, even though that is how the finished scene appears.
The film, which was screened at the Venice Film Festival, is meant as a serious artwork. The cast includes noted actors. The cinematography is of high quality. Critics writing for reputable journals have reviewed it favourably. For example, the Christian Science Monitor said:
‘The eerie tale is steeped in brooding atmosphere and psychological suspense thanks to Glazer’s hugely imaginative visual style and creative use of music, sound and silence. Huston gives a starmaking performance and Kidman is better than ever. Brilliant.’
The Council did not think that it was the purpose or the effect of the film to gratify any prurient interest.
The film is an entertainment of a serious nature. It has no medical, legal or scientific character.
Likely or intended audience
The film is made for adult viewers. It is unlikely to appeal to children or to be selected by parents for children’s viewing. It is slow-paced, even ponderous. The tone is sombre. Much of the film consists of brief conversations among adult family members in their homes. Many of the adult interactions are subtle and it would be difficult for child viewers to follow the storyline or the import of the interactions. The dialogue is sparse and there are many visuals of faces and family groups where little overt action occurs. Several scenes are silent, or nearly so.
Consistently with the suggestion that he is an adult in a child’s body, Sean is portrayed as an unusual child. His demeanour is unvarying. He is taciturn, solemn and solely focussed on his claim to be Anna’s husband. He treats adults as equals, regarding them dispassionately and without affection. His role involves chiefly mundane activities such as eating cake, taking a bath, being put to bed, etc rather than any more adventurous activities that might be likely to hold the interest of a child viewer. As there are no other children in the film, all his interactions are with adults. Their interest in him is limited to whether he is, or is not, the reincarnation of Anna’s dead husband. The Council thought it unlikely that child viewers would warm to or identify with Sean.
Most children would find this film too boring to sit through. Children younger than high-school age would struggle to follow the story.
The Council noted the complaintant’s concern that a parent or guardian who is a paedophile might select the film with the intention of grooming his or her child to take part in sexual activity with the parent or guardian. It is not impossible that a paedophile parent or guardian could select the film with that intention, although it is also conceivable that a paedophile would be willing to break the law to show the child material that is more directly sexual in nature. The Council doubted that the exhibition of this film to a young child would, however, persuade the child to accept sexual relations between adults and children.
Code and Guidelines
The Code says that a film that describes or depicts a child in a way that is likely to cause offence to a reasonable adult is classifiable RC. A film that is unsuitable for a minor to see is classifiable R18+. A film that depicts or deals with matters of sex in such manner as to be unsuitable for viewing by persons under 15 is classifiable MA15+.
The Guidelines elaborate on the Code. The difference between the R18+ category and the MA15+ category is one of impact. Strong themes are permitted in MA15+ if justified by context. There are virtually no restrictions on themes in R18+. The RC guideline says that a film that contains depictions or descriptions of child sexual abuse, or exploitative or offensive depictions of a child, will be banned. That also applies to a film that promotes or provides instruction in paedophile activity.
The Council decided to classify the film MA15+. The theme of an adult-child relationship is a strong theme but its impact in this case is not so high as to require an R18+ classification. Children aged over 15 are likely to be aware of child sexual abuse as a social issue and to know that sexual activity between children and adults is a serious crime. With an MA15+ classification, children under 15 will not be able to select the film for themselves. Their parents would be unlikely to select it for them both because it would not appeal to children and because parents would not consider it suitable viewing. The Council noted that the Board had attached consumer advice of ‘Adult themes; Strong sex scene2, which would be likely to alert parents that the film is unsuitable for younger children. The Council adopted this advice for South Australia.
The Council did not think the film likely to influence a child of any age to accept sexual relations with an adult. It did not consider that the film promoted or provided instruction in paedophile activity. It noted that some of the depictions of the child could offend some people but did not judge that the depictions were so offensive that the film should be classified RC.
2 This refers to a scene between Anna and her fiancé, not to any scene involving the child.
The Director of the OFLC spoke about the controversy regarding the MA15+ rating that was awarded to BIRTH.
Classification Board & Classification Review Board
Annual Report 2004-2005
The Classification Board is highly experienced and professional in applying the decision-making tools provided under the national classification scheme and takes its responsibility to classify material for the benefit of consumers extremely seriously. As well as other principles, the Classification Board is required to apply the principle that adults should be able to hear, see and view what they want. It is acknowledged that there is a broad spectrum of views in the community and I am confident that they are all taken into account in decision-making.
The Classification Board is established to make decisions at arms length from Governments and it is essential that the independence of the Classification Board should not be compromised in any way.
While Australians are very supportive of the national classification scheme, the diverse nature of our society means that some classification decisions will not always satisfy all people. Each reporting period there are a small number of products that create controversy.
During the reporting period there continued to be a low number of complaints. Specifically, 9,294 classification decisions were made during the reporting period and only 126 individual titles of films, computer games and publications were complained about.
Some of the titles that generated more letters and media commentary included the R18+ classified films Irreversible, Anatomie de L’enfer (Anatomy of Hell) and 9 Songs. It is inevitable that some films classified R18+ will be offensive to some sections of the adult community; however, there are appropriate safeguards in place to ensure that children are not exposed to these films. Few complaints were received by consumers who viewed these films, although a significant number were received from those who apparently had not.
Another film that attracted attention was Birth (MA15+). Media and other reports surrounding this film often contained misleading information on the actual content of the film triggering a significant level of complaints. No complaints were received from consumers who had viewed the film.
Classification Board & Classification Review Board
Annual Report 2004-2005
Films – public exhibition – complaints
....... and 15 complaints about Birth (MA15+) due to misleading media reports about the depiction of an adult-child relationship.
Classification Board & Classification Review Board
ANNUAL REPORT 2005–2006
The OFLC processed 210 items of ministerial correspondence, including
letters, emails and facsimiles, referred by the Attorney-General in the
reporting period. This compares with 197 items of ministerial correspondence
during 2004.05. The main issues raised in the correspondence were:
the films Birth (MA 15+) (17 items)