Classification (Publications, Films and Computer Games) Enforcement Amendment (X 18+ Films) Bill 2005
Reverend the Hon. Dr GORDON MOYES: The objectives of the Classification (Publications, Films and Computer Games) Enforcement Amendment (X 18+ Films) Bill are to amend the Classification (Publications, Films and Computer Games) Enforcement Act 1995. The mainstay of these amendments is to remove current bans in relation to the sale and public exhibition of X18+ films under the Commonwealth Act. The amendments also purport to ensure that films classified X18+ are sold only from restricted publication areas such as adult shops. Whilst the bill legalises X-rated films, it also increases penalties in relation to some offences. For example, fines are heightened for the sale and public exhibition of unclassified material, and individuals who allow minors access to adult material will face hefty sanctions under the bill.
Members of this Chamber will have differing views about this bill. Some may feel that the bill, in its entirety, is a welcome initiative that ought to be embraced by this House and the New South Wales community as a whole. People residing in this camp ultimately base their viewpoint on the notion that once individuals become adults they should be able to see and hear whatever they desire. Others will have very strong views against some aspects of the bill, based on practical and moral considerations. I count myself as included in this camp, and I have no qualms about making my opinion known.
At the outset, however, I would like to point out that I wholeheartedly share some of the concerns expressed by the Hon. Peter Breen. The honourable member hit the nail on the head in his contribution to the second reading debate when he indicated that the law relating to the sale and public exhibition of X-rated and other unsavoury material is not being enforced. He referred to research carried out by the Bureau of Crime Statistics and Research, which apparently shows that in the past four years just 14 people have pleaded guilty to a charge of selling or publicly exhibiting an illegal pornographic film, and that the average fine was approximately $300.
Like the Hon. Peter Breen, I am concerned that the law is not being enforced. People are flouting the law because they know they can get away with it. There is no doubt that the lack of enforcement of the law relating to illegal pornographic material is a justification relied upon by many not to observe the existing law. Unless effective enforcement mechanisms are in place, and they are accompanied by a strong political will to rely on and follow through with these mechanisms, breaches of the law will abound. This phenomenon can currently be observed in practice. There can be no effective regulation without an effective sanction that is actively enforced.
This argument might be illustrated by the predicament of the Bali nine as they face sanctions against them in the Bali prison. With all other things being equal, the severe and dire sanctions that are attracted if a person intends to import or export, or actually imports or exports, narcotics to or from Bali ought to be a deterrent to any reasonable person delving in such activity. The message that is sent out by the Balinese Government is closely observed by many. However, based upon expressed views,
I am certain that in hindsight some of the Bali nine would have refrained from attempting to carry narcotics if they had known of the severe consequences that they were facing. Countries such as Bali and Singapore have laws in place in relation to the realm of drug trafficking that are followed through. It is easy to foresee that those countries that have less stringent laws, which are not enforced, will become targets for drug trafficking. There must be enforcement for the laws to be effective. I also concurred with the Hon. Peter Breen when he remarked in his second reading speech on the bill:
In the old days, the Vice Squad comprised good and professional people who knew what the law was and how to enforce it, but there is nobody in the police force today who has any specialised jurisdiction or qualifications to deal with this complex area of film classification and enforcement of laws in relation to X-rated videos and videos that are refused classification.
I cannot emphasise enough that the current state of affairs is due to the lack of will and lack of resources to enforce the law that is in place. Our police must be thoroughly acquainted with the law and how to enforce it. If there is a lack of specialisation in dealing with the X-rated and otherwise unsavoury material targeted by this bill, it goes without saying that the answer is not to eliminate the law in place, but to improve the mechanisms in place to deal with the enforcement of the law. The Hon. Peter Breen is advocating that the baby be thrown out with the bathwater; for good to be thrown out with the bad.
The problem lies with the absence of effective enforcement, not with the merits of the law. If the police are ill-equipped to deal with the prevalence of illegal pornographic material, our focus ought to be to set up a part of the police force that is specifically designed to regulate and enforce sanctions against X-rated and other material. Our emphasis ought to be to stress the need for our police force to improve and follow through its strategies for the enforcement of the current law. It is anomalous to propose that the law should be done away with, not because of its merit per se, but because it is not being enforced. To lack enforcement is to create bad law. If one person is prosecuted to the full extent of the law it will send a clear message to others that it is not on to flout the law.
Another common ground that I share with the Hon. Peter Breen is the need for stricter penalties to be in place in respect of so-called unclassified material. The bill increases the legal sanctions for, among other things, the sale of unclassified material. The honourable member referred to the existence of bestiality, child pornography, and pain and faeces fetishes being all standard fare in the same-sex shops and second-hand bookshops that are operating illegally, but with apparent impunity, at the lower end of George Street and in Darlinghurst, in King’s Cross and in the city of Sydney. Unlike the Hon. Peter Breen, I have not researched this fact and I take his word for it. In the spectrum of sexual material, this material has to be most morally repugnant and reprehensible if I am to believe his research. Clear messages must be sent out that trading and delving in this material is not on in our society. The Government ought to be doing all it can to deter people from selling, buying and distributing this kind of material.
I support the increase in penalties in this context. Last year the Attorney General, Bob Debus, remarked in his second reading speech on the Crimes Amendment (Child Pornography) Bill 2004 that “by increasing the maximum penalties for child pornography offences, the Government is sending a clear message to the courts that such offences should not be tolerated”. Now, that is true. A clear message is sent when penalties for offences are increased, but I must stress that it is futile to make changes to legislation that is just not being enforced, because if the proposed changes are put in place, it is more likely that they will not be enforced either. Suffice it to say that the strategy put forward by the Hon. Peter Breen to increase penalties for some offences in the hope that they will be enforced is flawed. What makes the honourable member believe that increasing penalties for some offences will bring about actual enforcement of these penalties?
I concur that more stringent penalties are needed and that a stronger message must be sent out against the sale of unclassified material, but what makes the honourable member think that the law will then be enforced if it has not been enforced to date, and if he has admitted that that is because of lack of policing and political will? Even if penalties are increased for allowing minors to access adult material, what convinces the honourable member that these penalties will be enforced if the current legislation has not been enforced to date?
Further, I strongly hold that there is no evidence that making penalties tougher for what are called the refused classification [RC] films will eliminate the black market in these films. The honourable member indicated in his second reading speech that the main purpose of his bill is to “get rid of this black market and the corruption and exploitation that it necessarily involves”. Personally, I am not convinced that increasing penalties for refused classification films will result in the elimination of the black market in those films.
Again, the issue lies in whether there is effective policing of the market. The current state of affairs indicates that sex shops and so-called adult bookstores are acting with impunity. What makes the honourable member believe that his changes to current penalties will bring about effective policing? That is a political decision. In my opinion, liberalising the sale of some pornographic material will not lead to retailers restricting the material that they sell if there are no effective sanctions in place that are being enforced. I cannot comprehend the argument that increasing penalties for hardcore, fundamentally depraved material will bring about a shrinking of the black market if enforcements by police are not effective.
Furthermore, a black market for refused classification material will always exist, because there will always be some individuals in our community that have a penchant for this nasty material. The existence of this material in our community is a reflection of the demands of some members of our community. Also, in my opinion, the lack of enforcement willpower will also ultimately lead to X-rated material being sold, not only in restricted publication areas, but in other areas. This is what currently happens and changing the law to increase penalties will accomplish nothing unless the law is effectively enforced. Rather than advocating changes to the law, we ought to start by ensuring that the current law is effectively enforced. I think that enforcement in this area is the core weakness at present.
The honourable member noted in his second reading speech that if it were illegal to sell as well as buy legitimate X-rated videos in New South Wales, that would enable more effective policing of the illegal industry. I do not think that argument is logical. I have reiterated time and again that unless the illegal industry is currently policed effectively, there is no indication that legalising X-rated material will ensure enforcement of the law into the illegal industry. Why would effective policing instantaneously take place on the introduction of the Breen amendments if enforcement of the current law is not happening right now? Interestingly, the honourable member argued the following in his second reading speech:
I understand that approximately 10,000 pornographic videos were produced around the world last year, and about 600 of them were classified by the Office of Film and Literature Classification. The remainder, approximately 94 per cent, do not go unsold but, rather, end up in retail shops with forged classifications on the covers, or indeed no classification.
This means that unclassified material consists of 94 per cent of the material on the market. I am not sure why the honourable member believes that tackling the miniscule 6 per cent of the market will lead to reducing the plethora of unclassified material on the market. The argument has already been made that if X18+ classified material could be sold legally in sex shops or adult shops, that is, in restricted access venues, then sale of this material could be made illegal in video shops or so-called adult book stores that are so abundant about town.
It supposedly follows that the sale of X18+ material legal would dramatically reduce market access for illegal pornography. I do not believe that this argument holds. Though there are no statistics kept on the incidence of illegal pornography in the Northern Territory and the Australian Capital Territory [ACT], there is no doubt that these territories are still affected by the prevalence of illegal material.
Second, restricting the sale of such material to adult shops will not deter retailers from stocking and selling this material if the laws against stocking and selling this material are not enforced. Also, the Hon. Peter Breen has argued that one would be able to differentiate between classified and non-classified material by simply viewing whether a label classification on the jacket of the material is endorsed by the Office of Film and Literature Classification. He has indicated that any item that does not have an authentic label would be easy to spot and would be illegal to sell or to buy from any outlet. However, this is a non-argument because the label classifications already exist but are forged by those wanting to represent an otherwise unclassified film as classified.
The ACT and the Northern Territory have laws in place that allow for the sale and public exhibition, in certain circumstances, of X-rated material. The Hon. Peter Breen argues that New South Wales ought to be in step with these territories as if these territories are illuminating the path for the rest of Australia. I remind members that the most recent Australian demographics statistics of the Australian Bureau of Statistics indicate that only 1.6 per cent of Australia’s population live in the ACT and that the Northern Territory’s population is 1 per cent of Australia’s total population. I am not convinced that New South Wales, the State with Australia’s largest population, being one-third of Australia’s population, would follow the steps taken by these two other territories.
I think that the honourable member is looking for ways to justify his position, and what better way to justify his position than to look at two of the less conservative entities for guidance: the smallest, the ACT, and the Northern Territory. But what about the status quo that has been held across all Australian States? Does that not count for anything in this argument? I ask this rhetorical question because everybody knows the answer to it.
Given the nature of the debate and my position as a Christian leader in the community with a charge to represent the Christian voice of this State, I cannot leave this debate without putting on the record arguments against the sale and use of X18+ rated and other unclassified material. Many are familiar with the arguments against the sale and use of such material. In processing my arguments, however, I would like to draw the attention of the House to the findings of the United States Attorney General’s Commission on Pornography.
The commission was set up in the 1980s to review the available empirical evidence on the relationship between exposure to pornographic material and antisocial behaviour. The commission concluded that there is a causal relationship between the exposure to many forms of pornography and several antisocial effects, including increased levels of violence against women. As a result of these findings, the commission called for a more strict enforcement of existing obscenity laws. In the same vein we would also call for a more strict enforcement of the current pornographic laws.
Further, the Australia Institute, a broadly regarded and reputable think tank on social issues, prepared a report on Regulating Youth Access to Pornography, which was discussion paper No. 53 of 2003. Michael Flood and Clive Hamilton, who drafted the report, stated:
The research literature’s documentation of significant associations between use of certain types of pornography and sexual aggression provides grounds for real concern. Apart from the intrinsically disturbing nature of much Internet pornography, regular consumption of pornography and particularly violent and extreme pornography, is a risk for boys’ and young men’s perpetration of sexual assault.
In another article authored by Flood and Hamilton, entitled “Youth and Pornography in Australia: Evidence on the extent of exposure and likely effects”, the authors concluded that:
… a wide range of studies has been conducted among young people aged 18 to 25. One of the most important areas of social concern has been the impact of pornography on men’s sexual behaviour towards women, and particularly male sexual aggression or rape. One major study integrated the findings of a broad range of research and concluded that there is consistent and reliable evidence that exposure to or consumption of pornography is related to male sexual aggression against women. This association is strongest for violent pornography and still reliable for non-violent pornography, particularly when used frequently.
In experimental studies, adults show significant strengthening of attitudes supportive of sexual aggression following exposure to pornography.
Members will remember Marlene Goldsmith, a former Chairman of the Legislative Council Standing Committee on Social Issues, who explored the topic of whether there is a causal connection between sexual offenders and pornography. There is an abundance of evidence both for and against the argument that there is a causal connection between pornography and sexual violence. There are some quotes from that report that I would like to incorporate into my speech.