The Federal government has recently released a report into Australia’s national classification regulation, which is likely to have a significant impact on the laws regarding pornography across the nation.
Australian laws relating to sexually explicit content depicting consenting adults are far more censorious than many might think, with much of the nation – including New South Wales – imposing prohibitions on both the exhibition and sale of pornographic material.
Here’s a summary of the rules and how proposed reforms could impact on them.
Current Australian Classification Regulation
Media which is to be sold, exhibited or distributed in Australia must first be classified by the Australian Classification Board.
Classification markers include “G, PG, M, MA 15+, R 18+ or X 18+” for films and games, and “Unrestricted, Category 1 (restricted) or Category 2 (restricted)” for publications.
If a film, game or publication does not fit this classification criteria, it is ‘Refused Classification’ (RC). It is illegal to sell, exhibit or distribute a film, game or publication that is RC (or would likely be RC).
For pornography, depicting consenting adults, to be classified in Australia it would need to receive either an X 18+ classification (for films) or be considered a Category 2 (restricted) publication.
However, current guidelines severely limit the kinds of pornography that could be classified under this scheme.
Under the current Publication Guidelines a publication will be RC (and therefore illegal throughout Australia) if it depicts:
‘revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults’.
‘Revolting or abhorrent phenomena’ under the guidelines includes ‘fetishes or practices, sometimes accompanied by sexual activity, which are considered offensive’. Furthermore, ‘fetish’ is defined under the Publication Guidelines as:
‘[A]n object, an action, or a non-sexual part of the body which gives sexual gratification. Mild fetishes include stylised domination and rubberwear. Stronger fetishes include bondage and discipline.’
Under the current Film Guidelines, a pornographic film will be RC if it depicts:
- Violence, even if violence is unrelated to the sex occurring in the film. Infamously, the Pirates of the Caribbean porn parody Pirates (2005) was initially prohibited in Australia because of its non-sexual fight scenes.
- Fetishes, which are much broadly defined under the film guidelines to include “body piercing, application of substances such as candle wax, ‘golden showers’, bondage, spanking or fisting”.
- People over the age of 18 portraying minors, including scenarios involving school uniforms or other indicators of youth.
- Incest fantasies or other fantasies which are offensive or abhorrent.
As can be seen, many forms of pornography depicting consenting adults would not meet the criteria to be classified either Category 2 (restricted) or X 18+ in Australia and would be prohibited throughout the country.
Along with pornographic films, the current guidelines have developed an infamous reputation for censoring sexually explicit art films, including the works of Bruce LaBruce (LA Zombie), Greg Araki (Mysterious Skin), John Waters (Pink Flamingos) and Larry Clark (Ken Park).
The exhibition and sale of pornography in Australian jurisdictions
Even if a pornographic publication or film is able to get classified in Australia, there are significant restrictions on where that media can be sold or exhibited.
Category 1 (restricted) and Category 2 (restricted) publications are able to be sold in all States and Territories except for Queensland, but must only be sold in age-restricted sections of premises, in packaging which conceals their content.
X 18+ classified films can only be sold or exhibited in the ACT or the Northern Territory. It is therefore a criminal offence to sell or exhibit X 18+ films throughout most of Australia.
Films or publications that have not been classified or have been Refused Classification are also prohibited from sale or exhibition throughout Australia with tough criminal offences applying.
New South Wales offences of possessing, exhibiting or selling prohibited material
The Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) contains several offences relating to the sale or exhibition of prohibited publications or films.
- Section 6 of the Act: sale or public exhibition of unclassified, RC or X 18+ films, which carries a maximum penalty of a fine of $11,000 and/or 12 months’ imprisonment for an individual, or a fine of $27,500 for a corporation.
- Section 16 of the Act: keeping or possession of an unclassified, RC or X 18+ film in premises where classified films are sold, attracts a maximum penalty of a fine of $11,000 for an individual, or $27,500 for a corporation.
- Section 17 of the Act: leaving an RC of X 18+ film in a public place or in a private premises without permission, comes with a maximum penalty of a fine of $11,000 and/or 12 months’ imprisonment for an individual, or a fine of $27,500 for a corporation.
- Section 18 of the Act: possessing or copying of unclassified, RC or X 18+ films with the intention of selling or exhibiting it, has a maximum penalty of an $11,000 fine and/or 12 months’ imprisonment for an individual, or $27,500 for a corporation.
- Section 19 of the Act: selling for RC or unclassified publications, sets down a maximum penalty of $2,200 for an individual ,or $5,500 for a corporation for unclassified Category 1 publications, a fine of $5,500 for an individual or $11,000 for a corporation for unclassified Category 2 publications, and a fine of $11,000 for an individual and/or 12 months’ imprisonment for an individual, or $27,500 for a corporation for RC publications.
Production of pornographic material in New South Wales
The legal status of porn production in much of Australia is unclear, due to the application of laws regarding sex work, or “prostitution”, as well as existing outdated offences applying to “objectionable films” or “indecent articles”.
Sex work has been largely decriminalised in NSW, but a number of restrictions still remain.
It is an offence under section 15 of the Summary Offences Act (NSW) to live wholly or in part on the earnings of “prostitution”, unless the earnings are derived from working, managing or owning a brothel. This offence carries a maximum penalty of 12 month’s imprisonment.
Prostitution is defined broadly under the Act as including: “acts of prostitution between persons of different sexes or the same sex and includes (a) sexual intercourse … and (b) masturbation committed by one person on another, for payment”.
Under a plain language interpretation, if a person is hiring performers to have sex on film and the producer is earning money from selling that film, this could constitute an offence under the Act unless the premises is recognised a brothel.
A rarely enforced offence also exists under section 578C of the Crimes Act 1900 (NSW) for “publishing indecent articles” which includes a generating a “record” such as a film. This carries a maximum penalty of a fine of $11,000 and/or 12 months imprisonment for an individual, or a fine of $27,500 for a corporation.
An act is “indecent” if right minded persons would consider it to be contrary to community standards of decency. A similarly worded offence exists in Victoria for “making an objectionable film” – this offence was used in 2009 to prosecute porn producer Garion Hall in Victoria over films made for his website Abbywinters.com.
A further consideration on the legality of porn is whether production follows laws regarding sexual consent. This includes considerations such as:
- Ensuring all performers freely and voluntarily agree to sexual activity, which requires the continuous communication of consent, the absence of severe intoxication and the absence of force, threats, intimidation or other vitiating factors, including by third parties such as the performer’s partner.
- Ensuring consent has not been obtained by fraudulent inducement, including false promises about the amount of payment.
- Ensuring that consent is obtained for the distribution of images to third-parties. If this is not obtained the media would be considered “revenge porn” or abuse-based imagery.
The Eros Association, Australian adult industry association, has developed a set of production standards for adult media which outline common expectations shared by porn performers and producers regarding consent.
Uploading Content Online
The Online Safety Act 2021 (Cth) regulates online content in Australia. The Act empowers a regulator called the eSafety Commissioner to take down online content deemed harmful or unsafe for Australians.
Under the Act, potentially harmful material is subcategorised into “Class 1 material” and “Class 2 material”.
Class 1 material includes all RC media under the current classification guidelines. This material is prohibited and should not be accessible to Australians online.
Class 2 material includes all media which would likely be classified as X 18+ under the current classification guidelines. This material can be accessible to Australians online, but must be behind a “restricted access system”
Currently, a restricted access system for Class 2 material requires some proactive steps to prevent access to the material by minors. However, a more comprehensive age verification process is currently in development.
The eSafety Commissioner has extensive powers to remove and block Class 1 material or unrestricted Class 2 from being accessed by Australians, with significant civil penalties applying to social media sites, web hosts and internet service providers for failing to comply.
Uploading pornography online must follow the regulations regarding online content in Australia and producers must ensure all X 18+ content is behind a restricted access system, and RC material is not accessible.
Proposed Classification Reforms
The recently released report into national classification regulation suggests a number of key reforms when it comes to pornography. This includes:
- The removal of prohibitions on “fetishes” in Category 2 (restricted) publications and X 18+ films as long as they are not illegal.
- The removal of prohibitions on violence in sexually explicit films, if the violence is not related to sexual activity.
- Limits the need to classify sexually explicit films to films which are professionally produced, directed at an Australian audience and distributed for commercial purposes. This means that many “amateur” forms of pornography no longer need to be classified.
If adopted, these reforms will not stop the censorious state-based prohibitions on the sale of pornography, but they will mean that less material will be deemed “RC” under classification guides will be legally accessible to Australians if behind a restricted access system.
Any reform to Australia’s classification guidelines will require cooperation and agreement from each State and Territory and is likely to be a gradual process.