Patch Monday: Refused Classification means what, exactly?

ZDNet Australia logo: click for Patch Monday episode 36Australia’s planned mandatory ISP-level internet filter will block Refused Classification (RC) material. Communications Minister Senator Stephen Conroy says that’s “child pornography, pro-bestiality sites, pro-rape websites and material like that”. But it’s actually more than that.

I covered this in the most recent episode of the Patch Monday podcast, back on 29 March, but I forgot to re-post it here. Consider that fixed.

My guest is Professor Catharine Lumby, one of the authors of Untangling the Net: The Scope of Content caught by Mandatory Internet Filtering.

You can listen below. But it’s probably better for my stats if you listen at ZDNet Australia or subscribe to the RSS feed or subscribe in iTunes.

Please let me know what you think. Comments below. We accept audio comments too. Either Skype to stilgherrian or phone Sydney +61 2 8011 3733.

29 Replies to “Patch Monday: Refused Classification means what, exactly?”

  1. @stilgherrian I have just returned from a shopping trip to downtown Penrith — which has in my mind one of the best adult book shops I’ve ever experienced — it has real books rather than grotty magazines — and there amongst the whips and the chains and the handcuffs were DVDs of someone called Irene Boss (Rated “X”). A Google search on “Irene Boss” reveals some 281,000 entries. The nice and somewhat elderly lady who was explaining to a customer how a certain brand of pill had no side effects whatsoever and would assist with ejaculation noticed me sitting leisurely in one of the comfortable chairs leafing through a catalogue.

    She offered me a glass of water which I consumed on the premises.

    I trust it isn’t illegal to dispense water in adult bookshops.

    BTW: I’m heading back to Penrith this evening hoping to meet up with the Free Thinkers of Western Sydney at the Red Cow.

  2. @Bob Bain: Surely that can’t have been an X18+ video from Domina Irene Boss, who “produces female domination DVDs with CBT, caning, bull whipping, tickling, torture, humiliation, electricity, fetish, bondage, spanking, leather…”? That’s fetish material, which would be Refused Classification, and Senator Conroy has told us quite clearly that this RC material cannot be bought on DVD in Australia.

    1. Irene comments (more recently)

      “It has recently come to my attention that someone who I thought was my friend and did scenes with (who came to my space and who I would visit in DC) and also who I purchased a lot of gear from after she retired, spoke very poorly of me to a lot of people who she played with here at Max. Her exact words to them were “Irene will not respect your interests and limits”. I can assure you that nothing is further from the truth. Any scene I partake in with a new person is always negotiated, and I do respect interests and limits. In fact, I give a complimentary phone call the morning of a first visit (just for this purpose) and am one of the few people in the business who puts time into getting to know someone before they even arrive. Communication about play is always encouraged after I have formed a connection too.

      So again – what you see on video is not “what you get”. You get what you negotiate. wink

      So let it be written…

      Have a nice evening,
      Ms Boss”


  3. @stilgherrian Yes it is “female domination DVDs with CBT, caning, bull whipping, tickling, torture, humiliation, electricity, fetish and leather” ($39.95 per X-rated video including GST). From 1997 to about 2005 Penrith was I believe the bestiality capital of New South Wales until the Government in the Netherlands decided to ban depictions of sexual activity with non-consenting animals. The NSW police raided several outlets in 2005 after a “six week investigation” and sent 30,000 video tapes to the OFLC (or possibly somewhat less than that number).

    After that the Penrith press ran advertisements promoting the sale of fetish material despite the fact the NSW police noted it was illegal to sell.

    Oh Zone !

    “Retail of adult products including lingerie, DVDs, videos, books, magazines, toys and novelties. Couples welcome and private parties available.”

    I visited the Red Cow this evening and met up with several people including the legendary Peter Bowditch (ratbags dot com) and I was referred to James Randi who I’m told can set me straight on the Mayan Calendar.

    What Senator Conroy means is that RC material cannot be purchased in Blacktown. It’s most certainly available in the CBD. In fact the top rating video on the nocensorshipaus channel is an edited version of Salo (rated RC except for the Chinese version with Italian subtitles purchased a few years ago in George Street for $15 from which the video below was extracted).


    I cut out the bits with marmalade. 🙂


  4. @stilgherrian The ban on fetishes was gazetted in the Government Gazette by the former Attorney-General Darryl Williams on 30th August 1999.

    Long url — long .pdf document

    As per the Government Gazette

    “In force 1st. September 1999 – 25 May 2005”

    Questions that I have sometimes raised to those with an inclination to listen are simply:

    a) were the guidelines renewed and tabled in the Government Gazette some time after 25th. May 2005 ?

    b) if they were not then are the guidelines still legally active given that the guidelines were time limited to end on 25th. May 2005.

    It is noted that it is mandatory for changes to the guidelines to be published in the Government Gazette Sub-Section 12(4) of the Act.


  5. Apologies: The previous entry related to publications. This is the entry in the Government Gazette regarding fetishes in films

    It was labelled as being in force 18th September 2000 to 29th March 2003

    On page 3 it explains the purpose of the amendments which were to “further restrict the material permitted in the X classification”

    The questions regarding the continued legality remain the subject of my observation given that it was deemed to be in force up to the 29th. March 2003.

    I once tweeted the question under #nocleanfeed but there were no tweets in reply.


  6. @stilgherrian my interpretation is that the “intent” of the limits with regard to period expressed in the Government Gazette is that when the period has elapsed it is the responsibility for SCAG to either reaffirm the guidelines (and as I’ve repeated many times the guidelines are guidelines NOT LAW ) or to reassess the guidelines in accordance with community values and then publish either a) the status quo or b) the revised guidelines.

    As previously mentioned there are three categories of RC – 1) the classification board has discretion to bypass the guidelines as they did with Baise Moi 2) Instruction in matters of Crime which they cannot bypass and c) CP which is illegal in all states of Austrlia.

    Irene Boss for instance would fall under 1) the classification board has the discretion to bypass the guidelines which is no doubt why they seemingly rate Irene Boss BDSM videos/DVDs as “X” (at least that’s what the stickers on the boxes say). There again perhaps the titles were rated “X” prior to September 2000 and legitimately rated “X” (unless they have been resubmitted for classification).

    RC material in 1) (sorry to be brief) is regularly reclassified – Baise Moi from “R” to “RC” and “I Spit on Your Grave” from “R” to “RC” and then back to “R” for instance. Salo has been “R” but remains RC but I do have a copy purchased in Sydney and seemingly from China. It’s not a version listed on the IMDB. I checked. The spelling on the box is attrocious … and if I’ve spelt that wrong I apologise as my mind doesn’t have an inbuilt spelling checker.


  7. @Bob Bain: The Guidelines are an interesting beast. They are a “legislative instrument” so they have the force of law and yet are, as the title says, “guidelines”. Even if they weren’t called guidelines, their wording is so vague in parts that the Classification Board is left with a fair amount of interpretation to do.

    This is indeed something worth a bit more digging…

  8. @stilgherrian as an aside some may question the display of “X” rated Irene Boss DVDs in Penrith as being an infringement of State Statute Law.

    It isn’t. Why ?

    Let’s have a look at an olde olde common law term “invitation to treat” which forms part of Contract Law which one studies in the subject “Commercial Law” at the most elementary level.

    – it comes from the Latin phrase invitatio ad offerendum and means an “inviting an offer”.

    An invitation to treat isn’t binding and for a contract of sale to take place it’s the person seeking to purchase who approaches the vendor and asks “Can I purchase this at the price listed on the article” at which point bargaining takes place. This is referred to as “offer and acceptance”. There is no right of a person to purchase at the price listed (as a bargaining point) or at any price.

    In Penrith and in Blacktown Adult stores expressly stated that their wares were not available for purchase given interest by the constabulary at various points in time (far far more acute in Blacktown then Penrith).

    Possession of Irene Boss DVDs isn’t an offence in New South Wales – and that includes adult stores. In order to prove an infringement of State law it is necesarry to prove that a sale took place (as happened in Kings Cross where police officers purchased “X” rated material for six months in order to prove their case – under the guidance of the Superintendant Jenny Hayes who seemingly didn’t approve of the “X” rated trade which is only partly illegal).

    The St. Valentines Day Raids 2007 (YouTube) nocensorshipaus

    On the 14th. February 2007 New South Wales police raided bookshops and video outlets in King’s Cross New South Wales Australia.

    Videos similar to the one’s confiscated are currently on sale in the City of Sydney and various suburbs of Sydney.

    There is no record of convictions being recorded following these raids. The New South Wales government has failed to rectify the legal position at the 9th. June 2008.


  9. Addendum although it is legal to possess “X” rated “RC” or unclassified material it is illegal to sell them in the State of New South Wales.

    Police are now targetting Marrickville

    About 1.15pm yesterday police – acting on information received by the Commonwealth Attorney-General’s Department’s classification liaison scheme – raided two warehouse units on Carrington Rd.

    Police will allege during a search of the units they located 1014 pornographic DVDs which were either X18+ rated or unclassified.

    It is further alleged the X-rated DVDs were being sold over the internet by a company operating from the premises.

    The DVDs have been seized and will be sent to the Classification Board for analysis with investigations into the matter continuing.


    I believe it will be necessary to prove that the Marrickville DVDs are being sold from a website in the State of New South Wales.

    The Australian Sex Party has an opinion piece on this :-

    @aussexparty I hate to be pedantic but it’s Stephen Conroy not Steven Conroy. I don’t believe anyone has called the Communications Minister Steve.


  10. Update regarding the Marrickville raids. If I’m correct the XXXX rated website selling XXXX rated DVDs traces to being hosted in Brisbane in the State of Queensland.


  11. The Marrickville raids are interesting.

    According to my archives I wrote this on the 9th. March 2010 to Sarah Ferguson’s list (see the Refused Classification website links sections)

    ( No Censorship forum – mailing list )


    There’s a new adult shop close to the RSL and almost immediately
    opposite David Bradbury’s office. (David is my local Federal Member).

    I’ve noted the URL at the front of the
    shop which I’m told has been open two weeks.


    The URL was at that date in big red letters and the shop has opened in premises once occupied by Way Out West which has seemingly run it’s course and which stocked bestiality videos between at least 1997 until 2005 which I believe were legal imports from the Netherlands.

    How can bestiality content be a “legal import”. I have the answers to that but space is limited and I don’t necessarily wish to tread on old ground.


  12. It appears “Electro Thunder from Downunder” MIB Production Copyright 2010 was not produced in Australia but on a visit overseas by the Australian of that name who has:

    a) a YouTube channel
    b) a Twitter Account and
    c) a Livejournal

    I have added my two cents worth in the appropriate place (LiveJournal)

    I may check to see if it is available locally.

    I said “may”. This isn’t a promise 🙂


  13. Back to the subject of RC material being (or not being available) I have just returned from an Open Forum on the topic “The Iranian Oil Crises & OPEC Whistle Blowers” at the premises of the Humanist Society of New South Wales (10 Shepherd Street, Chippendale) by speaker Matt Mushalalik (a peak oil expert who has experience and knowledge of the situation in the middle east) and who called for a minute’s silence in Parliament House on St. Patrick’s day in relation to “mysterious circumstances” relating to the death of Dr. (Ali) Bakhtiari who I understand provided material in submissions to the New South Wales government which I’m told are documented in the NSW Hansard.

    As I made my way there I noticed a name I’d heard of recently in relation to the Q&A debate regarding the Internet filter on ABC1 on Monday. About 15 seconds walk from Humanist House is the office of the Federal Member of Parliament for Sydney Tanya Plibersek who on Monday stated in relation to RC content on the net (which it is inteneded to block under the government’s mandatory ISP level filtering scheme):-


    TANYA PLIBERSEK: And the reason that we’re trying to shut down this material – it’s material that you can’t go to the shop and buy. It’s material you can’t access legally in any format. It is a difficult issue. I understand the technological complexities. I understand people fear the slowing down. I don’t know that there is an easy solution to this and I’m, you know, interested to hear of the US experience, but certainly there is still a lot of child pornography available that’s generated all over the world, that people are accessing in the United States.


    However just a a few minutes earlier in the City of Sydney I discovered material where women were being chloroformed to a state of unconsciousness and dragged away for sexual abuse in a title “Unconcious 5”.

    Admittedly this was marked “Fantasy Material” and it was noted that the women involved were NOT actually chloroformed into unconsiousness during the making of the movie and that all of them were over the age of 18. The OFLC had rated it “X” which shows just how wide their discretion is when it comes to material of this type – given that the”X” rating precludes any form of coercion whatsoever.

    As the ABC notes :-

    Tanya Plibersek is the Minister for Housing and Status of Women. She is the Member for Sydney, a seat which covers the CBD and several inner suburbs of Australia’s biggest city

    No RC content legally available for purchase in Sydney Ms. Pilbersek ? I suggest you do a bit more research – starting with your own electorate.

    Apart from making a comment here there is little I can do about the situation as I am against censorship of sexually explicit material – especially material of a fantasy nature involving consent of the adult actors involved in the production of such material.


  14. @Bob Bain: I’m not sure that I want to drill down into such detailed specifics here, Bob, but I do have one question. Are you sure that when you see a label saying a DVD has been classified “X” that you’re actually seeing an Australian classification decision? That could well be American labelling, or someone else’s. The Australian classification is actually called specifically “X18+”.

  15. @stilgherrian The classification sticker on the DVD referred to was in the style of an OFLC sticker with the appropriate X18+ label. Yes it had an Austrlian “X18+” label. The outlet is quite well known. When Mike Meloni (Somebody Think of the Children) was in Sydney he told me that he was in a hotel in Haymarket and asked where he might be able to locate material I sometimes refer to in postings. I suggested he walk across the road.

    In short the front of the DVD had appropriate Australian “X18+” classification stickers and the back contained statements about the fantasy nature of the contents and the fact it complied with laws in place in the United States of America regarding age and the “custodian of records”.

    The police know about it (we discussed it over 15 years ago). The OFLC know about it (I took samples to them in 2002/2003 – see the ANU Link List Archives). The former Director of the OFLC Des Clark was told about about it. The Commonwealth Ombudsman’s Department have been told about it (Peter Breen MLC + myself 2005). I have discussed the matter with the former Attorney General of Australia in correspondence up to the point where I purchased a fantasy VHS tape (“No Mercy”) in the CBD and submitted a request to import the DVD under the direction of both the Federal Attorney General and the Director of the OFLC (Des Clark). Permission was refused under section 4A) the prohibited import regulations so I legally purchased a DVD of the same title in Park Street (opposite Hyde Park).

    I was in the city mainly to listen to Matt Mushalik concerning his moment of silence called for in the Jubilee Room at Parliament House on 17th. March 2010.



  16. Addendum: I was looking for a scanned copy of Des Clark’s response which is in my LiveJournal somewhere but I perchanced up this:

    I believe the key words are: “In this State and in all other Australian States, X-Rated material is regarded as ‘refused classification’. ”

    (May 13th. 2008)


    Received today:

    New South Wales

    File No: 08/1115
    Our Ref: D08/3827

    09 May 2008

    Dear Mr Bain

    I refer to your email to the Premier about your support for the availability of X-rated non-violent erotic films from adult shops. The
    Premier has forwarded your letter to the Attorney General, the Honourable John Hatzistergos MLC, who has asked me to respond on his

    In NSW the Classification (Publications, Films and Computer Games) Enforcement Act 1995 (the Act) gives effect to the national scheme for the classification of publications, films and computer games. The scheme is a co-operative one, requiring the agreement of all the
    Commonwealth, State and Territory Censorship Ministers if changes are to be made to the National Classification Code or the classification guidelines.

    The objectives of the co-operative scheme are better advanced if all States agree to changes in the enforcement of the classification
    decisions in their respective jurisdictions. These objectives include the imposition of uniform censorship laws in Australia. A national
    approach ideally respects the principle that adults should be entitled to read, hear and see the material of their choice in private. This
    is subject to adequate protection against persons being exposed to unsolicited material offensive to them and preventing conduct which exploits, or is detrimental to the rights of, others, particularly women and children.

    In this State and in all other Australian States, X-Rated material is regarded as ‘refused classification’. In NSW the law only permits
    X-rated films to be possessed for personal use. It is prohibited under the Act to sell, rent, display or exhibit an unclassified or
    ‘refused classification’ film or video. Contravention of this prohibition constitutes an offence.

    Although the sale of X-rated films to adults 18 years of age or older is legal in the Australian Capital Territory and the Northern
    Territory, this is not a matter which the NSW Government can regulate. Permitting the sale of X-rated films within NSW would be a significant departure from the current classification regime.

    Whist there are no proposals to change the existing prohibition on the sale or pubic exhibition of X-rated films in NSW, you may be assured that the Government will not move to change the current ban without first providing the opportunity for the community to fully consider any such proposal.

    The Attorney General will continue to support a national approach in regards to the availability of adult films and other material, which
    is consistent with the principle outlined above.

    I thank you for bringing your views to the attention of the Attorney General.

    Yours sincerely,

    Barry Collier MP
    Parliamentary Secretary
    Assisting the Attorney General and the Minister for Justice

    E&OE – There are hopefully no errors in transcribing the text of the document from paper.


  17. Update: Salo, a film that was Refused Classification has now been rated R18+.

    16th April 2010

    A controversial cult movie by Italian director Pier Paolo Pasolini, repeatedly banned in Australia since it was made in 1975, has been deemed suitable for DVD release.

    However, Salo, which features scenes of physical, mental and sexual torture, is being released only on condition the DVD includes nearly three hours of additional material to give it “context”.

    The cult art film has become a cause celebre of anti-censorship campaigners. Banned after its release, it was cleared for screening in 1993 before the then Office of Film and Literature Classification re-instituted an Australia-wide ban in 1998. Local distributor Shock tried and failed in 2008 to have Salo cleared for DVD release.

    The Classification Board has granted a R 18+ (restricted) rating for a modified version of Salo o le 120 giornate di Sodoma to be available in DVD format with the consumer advice “Scenes of torture and degradation, sexual violence and nudity”.

    Pasolini’s film, based on the Marquis de Sade’s book The 120 Days of Sodom, includes scenes of sexual degradation and violence. However, its Australian censorship history, and the strident opposition to its screening, has largely focused upon whether some of the participants were under 18.


  18. Update on the SALO decision:

    THE federal government has called for a review of the decision to allow the DVD release of Salo, an anti-fascist film mostly banned since its release in 1975 and featuring scenes of sexual torture.

    The Classification Board allowed Italian director Pier Paolo Pasolini’s work to be released with R 18+ rating provided the DVD contained nearly three hours of contextual material, including documentaries.

    But within hours of the decision being reported by The Australian, Home Affairs Minister Brendan O’Connor applied to the Classification Review Board for a review. Mr O’Connor said he believed a review was “in the public interest”.

    “There are likely to be sections of the community who will have different views on the content of this film so it is appropriate to have an independent review,” he said.

    “This film has a controversial classification history in Australia and even on this occasion the Classification Board was not unanimous in its decision.”

    Liberal senator Julian McGauran requested a review through the Attorney-General’s office. He has also called for the resignation of Classification Board director and Howard government appointee Donald McDonald, if he opposed the majority decision.

    “If he didn’t support this decision, he should step down in protest,” Senator McGauran said. “This film meets absolutely no community standard. This is the most open and shut case ever. There is no context for pedophilia.”

    Salo is an anti-fascist film that features scenes of physical, mental and sexual torture of teens. The film’s “mystique and notoriety” made it commercially appealing, said the film’s potential distributor, Joshua Hibberd, head of DVD acquisitions at Shock Entertainment.

    “Simply put, the film is an interpretation of a literary classic (Marquis de Sade’s 120 Days of Sodom) that can be found in any bookstore around Australia,” he said.


    According to the Internet Movie Database this is a film that has been legal in New Zealand since 2001 along with Norway and several other countries. It appears to be rated PG in Singapore.


  19. Note: Julian McGauran is reputedly (EFA 1998) a member of the Lyons forum and made a similar pitch the last time this movie came up for review.

    So it appears that we have someone who may or may not be a member of the Lyons forum who switched from being a member of the National Party to being a member of the Liberal Party on account of the fact there is little perceived difference, lobbying an arguably conservative Australian Labor Party while calling for the resignation of the John Howard appointed Donald McDonald – an appointment which (prior to forming government) the ALP regarded as being “jobs for the boys”.

    Reference EFA 1998

    Lyons forum

  20. Regarding this “Electric Thunder Down Under” film I stated:


    I may check to see if it is available locally.
    I said “may”. This isn’t a promise 🙂


    It wasn’t on the shelf but I understand they may have it in a week or two.


  21. Update:

    “Electric Thunder Down Under” arrived on Monday. The store kindly imported it from the United States for me.

    It sits in my “censorship and other gumph” area awaiting evaluation.


  22. “Electric Thunder Down Under” has now left the “censorship and other gumph” evalutation queue and has been evaluated.

    The DVD contains scenes of nudity, low level moaning and spittle and would be regarded as “consensting BDSM” material.

    Unlike the other “X” rated films of this genre on the shelves of “Oh Zone” High Streeet Penrith this recently imported copy has not been evaluated by the Classification Board.

    There is a slight chance that if attempting to import this DVD in personal baggage on arrival in Australia (after ticking the recently introduced “Yes I am in possession of pornography” requirement) the film might (might) be deemed “Refused Classification” as there is nothing in the guidelines regarding low level moaning or spittle.

    BTW. I am currently working on the Mayan Calendar topic for Parliament House on the evening of June 22nd.


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