A new government report is set to reshape Australia’s pornography laws.
Current regulations on adult content are more restrictive than many realise. In several jurisdictions, including New South Wales, strict prohibitions exist on the exhibition and sale of pornographic material.
We’ll explore the implications of this new classification report for the adult content industry nationwide.
Understanding Australia’s Pornography Classification
In Australia, any film, game, or publication that’s going to be sold, shown, or shared must first be rated by the Australian Classification Board.
So, what are these ratings?
- Movies and Games: G, PG, M, MA 15+, R 18+, and X 18+
- Publications: Unrestricted, Category 1 (restricted), or Category 2 (restricted)
But what if something doesn’t match any of these categories? It gets tagged as ‘Refused Classification‘ (RC). Selling, showing, or sharing anything marked RC is illegal in Australia. This includes any media with content that’s sexually explicit and illegal, like child abuse material.
For adult content involving consenting adults, it can be classified as X 18+ (for movies) or Category 2 (restricted) for publications. But, Australia’s strict guidelines limit what can be classified.
Publication Guidelines
Under the Publication Guidelines, anything showing “revolting or abhorrent phenomena” that goes against what’s generally accepted by reasonable adults will be RC. This includes certain fetishes or practices seen as offensive. Here’s a breakdown:
- Revolting or Abhorrent Phenomena: Offends standards of morality, decency, and propriety.
- Fetishes: Defined as objects, actions, or non-sexual body parts that give sexual pleasure.
- Mild Fetishes: Stylised domination, rubberwear
- Stronger Fetishes: Bondage, discipline
Film Guidelines
For films, the rules are even stricter. A pornographic movie will be RC if it shows:
- Violence: Even unrelated to sex scenes (e.g., Pirates of the Caribbean porn parody was banned for fight scenes).
- Fetishes: Includes body piercing, candle wax, spanking, etc.
- Adults Portraying Minors: Scenarios involving school uniforms or other youth indicators.
- Incest Fantasies: Or any offensive or abhorrent fantasies.
As you can see, many types of adult content won’t make the cut and are banned in Australia. This also affects art films that have explicit content, like those by Bruce LaBruce and John Waters.
Where Can You Buy and Show Adult Content in Australia?
Most states permit the sale of “restricted” publications, except for Queensland. Additionally, these publications must not be displayed openly; they should be kept in designated areas inaccessible to minors and in packaging that obscures their content.
For X 18+ films, they can only be purchased or viewed in the Australian Capital Territory (ACT) and the Northern Territory. In all other regions, it is illegal to sell or show these films.
Furthermore, any material that has not been classified or has been refused classification by the classifiers cannot be sold or shown anywhere in Australia. Attempting to do so may result in severe penalties.
Offences for Prohibited Material in New South Wales
Let’s talk about the rules in New South Wales. The Classification (Publications, Films and Computer Games) Enforcement Act 1995 (NSW) sets out what’s illegal when it comes to selling or showing banned media.
Here are the key points:
- Section 6: If you sell or show an unclassified, RC, or X 18+ film, you could face a fine of up to $11,000 and/or 12 months in prison. For companies, the fine can go up to $27,500.
- Section 16: Keeping or possessing these films on premises where other classified films are sold can lead to the same penalties: $11,000 for individuals and $27,500 for corporations.
- Section 17: Leaving an RC or X 18+ film in a public place or private premises without permission can also result in fines up to $11,000 and/or 12 months in prison for individuals, and $27,500 for corporations.
- Section 18: If you have or make copies of these films with the intent to sell or show them, the penalties are similar: an $11,000 fine and/or up to 12 months in prison for individuals, and $27,500 for corporations.
- Section 19: Selling unclassified or RC publications can result in various fines:
- $2,200 for individuals and $5,500 for corporations for unclassified Category 1 publications.
- $5,500 for individuals and $11,000 for corporations for unclassified Category 2 publications.
- $11,000 and/or up to 12 months in prison for individuals, and $27,500 for corporations for RC publications.
Rules for Making Porn in New South Wales
Is making porn legal in New South Wales? It’s a bit of a grey area due to outdated laws and rules about sex work.
Sex Work and Restrictions
Sex work has been mostly decriminalised in NSW, but there are still some rules. For example, it’s illegal under Section 15 of the Summary Offences Act (NSW) to live off the earnings of sex work unless it’s from managing or owning a brothel. Breaking this law can lead to up to 12 months in jail.
Definition of Prostitution
The Act defines prostitution broadly:
- Acts of sex between different sexes or the same sex.
- Includes sexual intercourse and masturbation for payment.
Impact on Porn Production
If you’re hiring actors to perform sex acts on film and making money from selling those films, this could be seen as an offence unless the filming takes place in a recognised brothel.
Indecent Articles Law
There’s also a rarely enforced law under Section 578C of the Crimes Act 1900 (NSW) about “publishing indecent articles.” This includes making films. Breaking this law can result in a fine of up to $11,000 and/or 12 months in jail for individuals, or $27,500 for companies.
What Is Indecent?
An act is considered indecent if it goes against community standards of decency. A similar law in Victoria was used to prosecute a porn producer in 2009.
Consent in Porn Production
When making porn, it’s crucial to follow laws about sexual consent:
- Performers must freely and voluntarily agree to all activities.
- Consent must be maintained throughout, with no severe intoxication or coercion.
- Consent must not be obtained through false promises.
- Permission must be obtained for distributing the images or videos.
The Eros Association, representing the Australian adult industry, has set production standards to ensure consent and other expectations are met.
Rules for Uploading Porn Content Online
Uploading porn online in Australia? You need to know the rules.
The Online Safety Act 2021
This law controls what can be shared online. It gives the eSafety Commissioner the power to remove harmful content.
Types of Harmful Material
There are two main types:
- Class 1 Material: This includes all RC (Refused Classification) media. It’s banned and shouldn’t be accessible online in Australia.
- Class 2 Material: This includes media that would be classified as X 18+. It can be online but must be behind a restricted access system.
Restricted Access Systems
For Class 2 material, you need to make sure kids can’t see it. Right now, this means taking steps to block underage access, but more strict age checks are coming soon.
Powers of the eSafety Commissioner
The Commissioner can remove or block Class 1 and unrestricted Class 2 content. Websites, social media, and internet providers can face big fines if they don’t comply.
What You Need to Do
If you’re uploading porn, follow these rules:
- Make sure X 18+ content is behind a restricted access system.
- Ensure RC content is not available online.
Proposed Changes to Australia’s Classification Guidelines
A new report on national classification rules suggests some important updates for adult content.
Here’s what could change:
- No More Fetish Restrictions: As long as they’re legal, “fetishes” might be allowed in restricted publications and X 18+ films.
- Less Focus on Violence: Violence in adult films could be fine if it’s not tied to sexual acts.
- Amateur Content Exempt: Only professionally made films aimed at Aussies and sold for money would need classification. So, many amateur videos wouldn’t need to be classified anymore.
If these changes happen, they won’t stop state bans on selling porn. But, they could mean more material won’t be marked as “RC” (Refused Classification) and could be available if behind restricted access.
The Future of Adult Content Regulation in Australia: What’s on the Horizon?
Australia’s pornography laws are complex and evolving. From strict classification guidelines to online content regulations, the adult industry faces numerous challenges. Proposed changes could ease some restrictions, potentially allowing more diverse content and exempting amateur productions. However, state-level bans and online safety measures will continue to shape the landscape.
For expert guidance on navigating these intricate pornography laws and staying compliant with current and future regulations, consult with KPT Legal. Our experienced team can help you understand and adapt to the changing legal environment in Australia’s adult content industry.
*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice beforetaking any course of action.*
