Film Censorship: Lolita (1997)


 

 

 

 

Lolita

Directed by Adrian Lyne / 1997 / France - USA / IMDb

In March 1999, Beyond Films had a 138m 35mm print of LOLITA classified with an R18+ (Adult themes, Medium level violence) rating.

 

 

LOLITA R18+: Community groups unhappy

Following the classification, several Western Australian community groups called to have the R-rating reviewed.

On April 9, 1999, the Review Board found HALO (helping all the little ones) not to be a 'persons aggrieved' by the decision, and refused to review the R18+ rating.

 

Classification Review Board
Annual Report 1998-99
Year in Review

Much public controversy was generated over the 'R18+' classification assigned by the Classification Board to the film Lolita. A joint application for review of the decision was received from a consortium of community groups from Western Australia.

The task before the Review Board was firstly to determine whether the groups and individuals concerned qualified as 'persons aggrieved' within the meaning of subsection 42(1) of the Classification (Publications, Film and Computer Games) Act 1995, viz. that they were persons entitled to lodge an application for review of the decision to classify the film 'R18+'. In the event, the Review Board, having taken legal advice, found that the applicants were not 'persons aggrieved' within the meaning of the Act and therefore the Board did not proceed to review the classification assigned.

 

 

LOLITA: Review Board Report

 

LOLITA

Applicants:
Helping All Little Ones (HALO)
Individual on behalf of Child Protection Connection
Adult Survivors of Sexual Child Abuse

Decision

1. The Classification Review Board declined to deal with the applications from Helping All Little Ones and an individual on behalf of Child Protection Connection, dated 28 March 1999, for a review of the decision of the Classification Board to classify the film Lolita (Adrian Lyne, 1997) R18+. The Review Board was not satisfied that either applicant was 'a person aggrieved' within the meaning of sub- section 42(1)(d) of the Classification (Publications, RIm and Computer Games) Act 1995 (Cth).

 

2. The Classification Review Board decided that there was no competent application from Adult Survivors of Sexual Child Abuse because the prescribed fee had not been paid in accordance with section 43 of the Act and the Director of the Classification Board had not waived the payment of fees in accordance with section 91 of the Act,

 

Legislative provisions

3, The relevant legislative provisions are sections 42, 43 and 91 of the Classification (Publications, Films and Computer Games) Act 1995 (Cth) ('the Act'). These included requirements that:

> section 42 (1):
'Any of the following persons may apply to the Review Board for a review of a decision:...
(d) a person aggrieved by the decision,'

> section 43 (1):
'An application for review of a decision must be:",
(d) accompanied by the prescribed fee.'

> section 91(1):
'The Director may, on application in writing by a person, waive payment of fees that would be payable under this Act if: , . .
(b) the body that would be liable for the fee.., is a non-profit organisation.'

 

Procedure

4. Three applications for review were made on 28 March 1999, Of the applicants, two were incorporated associations, Helping All Little Ones (HALO) and Adult Survivors of Sexual Child Abuse (ASSCA), and one was an individual on behalf of Child Protection Connection (CPC),

 

5. The Review Board received written material from the applicants and from Beyond Films Ltd, the Australian distributor of the film ('the distributor'), on the issue of whether the applicants were 'persons aggrieved' under section 42 of the Act and also on the classification of the film Lolita should the Review Board decide that one or more of the applicants was a 'person aggrieved',

 

6. On 9 April 1999, the six members of the Review Board viewed the film Lolita.

 

7, On the same day, the Review Board heard oral submissions from Ms Karen McDonald of HALO and the individual representing CPC, for the applicants, and from Mr Ian Robertson, for the distributor, on the issue of whether the applicants were 'persons aggrieved' under section 42 of the Act and also on the classification of the film Lolita should the Review Board decide that one or more of the applicants was a 'person aggrieved'.

 

Evidence

8. In reaching its decision, the Review Board had regard to the following:

(a) the applicants' Application for Review;

(b) the written material provided by HALO and the individual representing CPC;

(c) the written submission prepared by Holding Redlich on behalf of the distributor;

(d) the film Lolita (Adrian Lyne, 1997);

(e) oral submissions from Ms Karen McDonald, Coordinator, HALO, and the individual representing CPC;

(f) oral submissions from Mr Ian Robertson, Holding Redlich, on behalf of the distributor;

(g) the relevant provisions of the Act;

(h) relevant case law on standing and the meaning of 'person aggrieved' including
Australian Conservation Foundation v. The Commonwealth (1980) 146 CLR 493,
Ogle v. Strickland (1987) 71 ALR 41;
North Coast Environment Councillnc v. Minister for Resources (1994) 127 ALR 617;
Tasmanian Conservation Trust Inc v. Minister for Resources (1995) 127 ALR 580;
Right to Life Association (NSW) Inc v. Secretary;
Department of Human Services and Health (1995) 128 ALR 238;
Executive Council of Australian Jewry v. Sculiy(1998) 160 ALR 138.

 

Findings on Material Questions of Fact

9. The film is concerned with a sexual relationship between a 14 year old girl and her stepfather and implies a sexual relationship between her and at least one other adult man.

 

HALO

10. HALO was formed as an association in December 1997 and was incorporated in June 1998. It has approximately 100 members of whom 30 are full members and entitled to participate as 'committee members'. It has several branches, all of which are in Western Australia. It has no other groups affiliated with it. It is a non-profit organisation and receives no government funding. It receives financial support from members and is seeking private sector sponsorship.

 

11. HALO was formed as a voice for children who have been sexually abused. It states that its aims and objectives include:

> providing comfort and support to WA families which have experienced domestic violence or child sexual abuse

> lobbying the government and raising public awareness on child protection issues

> acting as an advocate for children who have been the victims of sexual abuse and for their families

> training and education of medical and legal practitioners, social workers and the Courts in relation to the best interests of the child.

 

12. HALO has undertaken various activities in the community in relation to some of its stated aims and objectives. It specifically relied upon the following activities:

> organising social events and guest speakers for its members

> the Convenor, Ms McDonald, acts as an advocate for children who have been the victims of sexual assault and their parents when they are involved in cases in the Family Court. Some are referred to HALO by hospitals or the State Department of Family and Community Services. Ms McDonald's assistance to the family may include informing them about available services and suitable professionals to consult, liaising with the government agencies on an informal basis and making submissions to Legal Aid if the family does not receive assistance. Ms McDonald has no professional training in this area and keeps only informal records about her clients. She is currently providing support to about 50 people who are involved in Family Court cases.

> HALO has access to a trained counsellor who provides services to members in crisis on a voluntary basis

> HALO made a 60 page submission to Legal Aid and sent copies to the Family Court entitled 'Domestic Violence and Sexual Abuse Cases in the Family Court'. The submission was in response to a verbal request by Legal Aid and does not seem to have been part of a formal inquiry. HALO has had meetings with the Chief Justice of the Family Court of Western Australia and Legal Aid to discuss the issues raised in their submission.

> HALO has conducted some activities to raise public awareness of the issues with which it is concerned, including holding a public meeting attended by 100 people in December 1997. However, the Review Board found that Halo's major focus was on helping WA families with abused children through Court processes.

Child Protection Connection

 

13. CPC is an unincorporated association which was formed in January 1999. It has six members. It is a non-profit organisation and does not receive any govemment funding. The group is concerned with community attitudes towards children and its aims and objectives include 'making parents aware of how to protect their children from predators', conducting radio interviews and lobbying Members of Parliament in relation to child welfare legislation.

 

14. The Review Board considered that the members of CPC are committed to the protection of children in the community and that the organisation has carried out some activities to raise public awareness about issues related to this goal, including lobbying Members of Parliament and speaking publicly, including on radio.

 

15. The individual member of the CPC claimed that she is an adult survivor of child abuse. She clearly has a sincere personal interest in assisting victims of child abuse.

 

Reasons

16. The expression 'person aggrieved' in sub-section 42(1)(d) is not defined in the Act and there have not been any cases in the Federal Court which have considered the use of the term in this particular legislation. Accordingly, the Review Board found it necessary to look at cases which have considered the meaning of 'person aggrieved' in other legislation, including the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Racial Discrimination Act 1975 (Cth). The Review Board recognises that the meaning of 'person aggrieved' may be slightly different in the context of this legislation, given that an applicant before the Review Board will have a different role to play than an applicant before a Court. However, the Board has found the cases which have considered the use of these words in other legislation to be a useful guide in interpreting the expression 'person aggrieved' in this legislation.

 

HALO

17. HALO's submission on the question of whether their organisation was a 'person aggrieved' was that since the aim of their organisation was to defend the interests of sexually abused children, and since it considered that the film promotes child sexual abuse, this film directly affected their organisation.

 

18. The Review Board does not doubt the sincere commitment of the members of HALO to its stated aims and objectives. However, the Review Board does not consider that HALO is a 'person aggrieved' for the purposes of the Act because it does not have a sufficient 'special interest' in the classification of Lolita as described in case law in this area. (See, for example, ACF v Commonwealth (1988) 146 CLR 493 at 530,547-548; North Coast Environment Council Inc v. Minister for Resources (1994) 127 ALR 617 at 636-637.)

 

19. In particular, the Review Board did not consider that HALO demonstrated that they could be considered a representative of the public interest on the issue of the protection of children from sexual assault. They are a relatively small and recently-formed group and do not have a long history of involvement in these issues. They are neither a peak body nor an umbrella organisation. Apart from one submission prepared for Legal Aid, they are not recognised or consulted by government bodies in relation to these issues nor do they receive any government funding for their work. There was little or no evidence provided to the Board that they carried out activities in relation to some of their stated aims and objectives, such as the training of professionals working in the area or lobbying the government on child protection issues.

 

20. The Review Board was of the view that HALO did not possess the attributes which courts have found to be relevant in considering whether organisations which claim to be representative of a particular public interest have a 'special interest' in a matter. (See North Coast Environment Council lnc v. Minister for Resources (1994) 127 ALR 617 at 637-638; Tasmanian Conservation Trust Inc v.The Minister for Resources (1995) 127 ALR 580 at 613-614.)

 

21. In relation to HALO's claim that Lolita would interfere with their efforts to educate people about sex offenders, the Review Board found that there was insufficient evidence that HALO ran significant numbers of education programmes or other campaigns on these issues, aside from one public meeting entitled 'Beware paedophiles'. This claim was not therefore established to the satisfaction of the Review Board.

 

22. The Review Board also found that HALO did not have a special interest in the matter by reason of their profession or vocation (Ogle v. Strickland (1987) 71 ALR 41). In particular, despite Ms McDonald's statement that she has dedicated her to life to the protection of children, the Review Board did not consider her work as an advocate for families involved in the Family Court to be part of a profession or a vocation. She has no formal training in the area and does not maintain formal records of her work. In any event, Ms McDonald's work as an advocate, and the work of the counsellor, were not sufficient to give HALO, as an organisation, a professional or vocational interest. The main role of the organisation is as an advocacy body for families of abused children in the Court system in Western Australia, rather than as an association of people whose vocation is related to child welfare.

 

Child Protection Connection

23. The Coordinator brought the application on behalf of CPC. A person may be a 'person aggrieved' because of their special responsibility to safeguard the interests of a representative organisation (Executive Council of Australian Jewry v. Scully (1998) 160 ALR 138 at 150).

 

24. The Review Board considered that the Coordinator represented a support and advocacy group for the protection of abused children, but no evidence was provided by the organisation to suggest that it was representative of the wider public interest which might mean that it would qualify as a 'a person aggrieved'. The organisation is not a peak body in the area of child protection; it does not receive any government funding nor is there any evidence of government recognition of CPC as a body that should be consulted on these issues; the organisation has only been in existence for a very short period of time and little evidence was provided to the Review Board to support some of its claims of involvement in this area.

 

25. As with HALO, the Review Board was of the view that CPC did not possess many of the attributes which the Courts have found to be relevant to the possession of a 'special interest' by representative organisations. (See North Coast Environment Council lnc v Minister for Resources (1994) 127 ALR 617 at 637-638; Tasmanian Conservation Trust Inc v. The Minister for Resources (1995) 127 ALR 580 at 613-614. In the Review Board's opinion, since CPC has not demonstrated that it has a special interest in the classification of the film Lolita as a representative body on child protection issues, the individual could not be a 'person aggrieved' by reason of her role as co-ordinator of that organisation.

 

26. The individual also claimed that she was a 'person aggrieved' because she had been a victim of sexual abuse as a child. Because a film depicts the subject of child sexual abuse, this does not of itself, in the view of the Board, make a survivor of sexual abuse a person with a sufficient interest to be a person aggrieved by a decision to classify the film.

 

Adult Survivors of Sexual Child Abuse

26 The Review Board considered that since neither a fee had been received in accordance section 43 of the Act, nor a waiver granted by the Director of the Classification Board in accordance with section 91, there was no competent application from ASSCA before the Board.

 

Summary

28. The Review Board's decision was that it declined to deal with the applications for a review of the classification of the film Lolita because neither of the applicants in the two competent applications before the Board was a 'person aggrieved' within the meaning of sub-section 42(1)(d) of the Act. As a result of this decision, the Review Board did not proceed to review the classification of the film.

 

29. This decision was taken after full consideration of the applicants' submissions and in light of the relevant legislative provisions and case law.

9 April 1999

 

 

Complaints to the Attorney-General

An organised letter writing campaign saw the Attorney-General receive nearly one thousand complaints regarding the LOLITA classification.

 

Complaints
Films - Public Exhibition
The OFLC received 17 phone and 58 written complaints about films exhibited in cinemas.
Of these, 37 were in relation to the 'R' classification of the film Lolita.
Classification Board and Classification Review Board Annual Report 1998-1999

Ministerials
The OFLC processed 1,310 complaints directed to government ministers and referred to the office by the Attorney-Generals department.
The majority of these Ministerial complaints (945) were in relation to the classification and subsequent release of the film Lolita.
Classification Board and Classification Review Board Annual Report 1998-1999

 

Complaints
Films - Public Exhibition
Concerns that the film Lolita would encourage paedophilia were the basis of two complaints received within the reporting period.
Classification Board and Classification Review Board Annual Report 1999-2000

Ministerials
There were also a number of letters (13) about the film Lolita within the reporting period.
Classification Board and Classification Review Board Annual Report 1999-2000

 

 

LOLITA and the change in law

The fall out from the LOLITA resulted in the Howard Government changing the definition of 'persons aggrieved' to allow groups such as HALO to challenge future ratings.

A direct consequence of this was that Religious Right groups, such as the Australian Family Association, were able to challenge the R-ratings of films such as IRREVERSIBLE, ANATOMY OF HELL, and MYSTERIOUS SKIN.

 

 

Barnaby Joyce vs. SBS

During Senate Estimates in October 2005, the National's Senator Barnaby Joyce took the chance to question SBS over their programming. Up for discussion was QUEER AS FOLK and the documentary LOST WORLDS: THE REAL FAMILY OF JESUS.

Joyce made a fool of himself by claiming that SBS had screened LOLITA (1997), when it was in fact the Stanley Kubrick's 1962 version.

Shaun Brown and Julie Eisenburg from SBS defended the station in the face of questioning from the ill-informed Joyce.

 

Committee Name: ENVIRONMENT, COMMUNICATIONS, INFORMATION TECHNOLOGY AND THE ARTS LEGISLATION COMMITTEE
Special Broadcasting Service: Discussion
Date: 31 October, 2005
Database: Estimates Comm.
Source: Senate

Senator JOYCE—In May you had Lolita on. Lolita is rated R, if you got it from a video store. How did you manage to get that on?

Mr Brown—It was not rated R for—

Ms Eisenberg—Was that the Stanley Kubrick version?

Mr Brown—The Stanley Kubrick 1960s film

Ms Eisenberg—I think we would need to take that on notice. There was another version of it which was made a number of years later which had a different rating. R rated content is not permitted on SBS under our codes of practice.

 

 

LOLITA: DVD Release

LOLITA was first released on DVD in a Special Edition by Twentieth Century Fox Home Video.

 

 

New consumer advice

In July 2006, Madman Entertainment had a DVD of LOLITA passed with an R18+ (Adult themes, High level violence) rating. In 1999, the consumer advice had been, 'Adult themes, Medium level violence'.

The Madman Entertainment DVD was released in September 2006.

 

Lolita - Twentieth Century Fox [au] DVDLolita- Madman Entertainment [au] DVD


 

 

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