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					Northern Territory Emergency
Response
Bans on Pornography

Question & Answer Sheet
Changes to the Classification (Publications, Films and Computer Games) Act 1995
introduced offences for possessing pornography within prescribed areas, and for
supplying pornography in and to those areas.

When did the bans start?
The bans commenced on 14 September 2007.

What is banned?
There are two levels of prohibited material now banned in prescribed areas.

Level 1 prohibited material covers:
          publications classified Category 1 – Restricted or Category 2 – Restricted
          unclassified publications that would be likely to be classified Category 1 –
           Restricted or Category 2 – Restricted
          X18+ films
          unclassified films that would be likely to be classified X18+, and
          prohibited advertisements.

Level 2 prohibited material covers:
          Refused Classification (RC) films, computer games or publications, and
          unclassified films, computer games or publications that would be likely to
           be classified RC.

Is it only films and publications containing sex that are banned?
No. It is the classification, or likely classification, of material that will determine
whether it is banned. R18+ classified films are permitted in prescribed areas.

Category 1 – Restricted and Category 2 – Restricted publications that only contain
depictions and descriptions of violence — with or without sexual content — are also
banned.

Similarly, material that contains matters of drug misuse or addiction, crime, cruelty,
violence or revolting or abhorrent phenomena is classified RC and will be prohibited
material.
How can I tell what classification the material is?
Look for the markings on the container of the DVD or video. Restricted classified publications should contain
publications markings and may be contained in wrapping.

You can also check the classification, using the title of the material, on the classification database at
www.classification.gov.au or, if required, call 1800 333 995 any time for advice.

If the material does not contain a classification marking, assess the content contained in the material using
the Guidelines for the Classification of Films and Computer Games, the Guidelines for the Classification of
Publications and the National Classification Code (see Attachments). These documents are also available at
www.classification.gov.au and www.ag.gov.au.

What would Category 1 – Restricted and Category 2 – Restricted publications contain?
Category 1– Restricted and Category 2 – Restricted publications should be marked with the relevant
following classification symbol:




Category 1 – Restricted and Category 2 – Restricted publications may also be marked with the following old
classification symbols:




Category 1 – Restricted Publications:

These publications may include:
            detailed descriptions of sexual activity involving consenting adults
            stylised (cartoons and/or drawings) or realistic (photographs) depictions of simulated or
             obscured sexual activity involving consenting adults
            realistic depictions of nudity which contains genital detail, depictions of obvious sexual
             excitement and touching of the genitals
            adult themes with a high degree of intensity
            some descriptions and depictions of fetishes
            coarse language, and
            descriptions and depictions of drug use.

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Category 1 – Restricted titles include Australian Penthouse, The Picture and Mayfair.

The Guidelines for the Classification of Publications contains more detail about the type of content that is
permitted in this category. The Guidelines are available at www.classification.gov.au and www.ag.gov.au.

Category 2 – Restricted Publications:

Category 2 – Restricted publications allow the same descriptions and depictions on violence, coarse
language and drug use as permitted in a Category 1 – Restricted publication.

In addition, Category 2 – Restricted publications may contain:
       detailed descriptions of sexual activity
       depictions of actual sexual activity involving consenting adults
       realistic depictions of nudity may include actual sexual activity, and
       some fetishes which do not involve non-consent or physical harm.

Category 2 – Restricted publications include The Australian Rosie, Swank and Private.

How do I know if a film is an X18+ film?
X18+ films should be marked with the relevant following classification symbol:

                        Classification                      Consumer Advice




X18+ films contain actual sexual intercourse and other actual sexual activity between consenting adults. The
sexual activity in X18+ films is not simulated.

What sort of content would be Refused Classification (RC)?
Films and computer games will be classified RC if they promote, incite, or instruct in matters of crime or
violence, or contain exploitative or offensive descriptions or depictions involving a person who is, or appears
to be, under 18 years, or child sexual abuse.

Films and computer games containing gratuitous, exploitative or offensive depictions of sexual violence or
very high impact and excessive violence would be classified RC. In addition, any films containing both
depictions of violence and explicit actual sexual activity will also be classified RC.

Depictions of practices such as bestiality and gratuitous, exploitative or offensive depictions of offensive or
abhorrent practices or fantasies or fetishes would be RC content. Content promoting, encouraging and
providing detailed instruction of proscribed drug use is also classified RC.

Similarly, publications which contain this type of content will also be classified RC.
The Guidelines for the Classification of Films and Computer Games, the Guidelines for the Classification of
Publications and the National Classification Code provide further detail on what type of content would be
classified RC. The Guidelines are available at www.classification.gov.au and www.ag.gov.au.

Why are advertisements banned?
Advertisements for films, publications or computer games which are, or would be likely to be, refused
approval under the Classification Act, are also prohibited material. An advertisement must be refused
approval if it describes, depicts, or otherwise deals with matters of sex, drug misuse or addiction, crime,
cruelty, violence, or revolting or abhorrent phenomena in such a way that it offends against the standards of
reasonable adults. Banning these kinds of advertisements ensures that high level sexual material cannot
escape the ban on prohibited material by being presented as an advertisement that is not otherwise
classifiable.



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Where do the bans apply?
The bans apply to ‘prescribed areas’ which are defined under legislation (the Northern Territory National
Emergency Response Act 2007 — section 4) and include Aboriginal land under the Aboriginal Land Rights
(Northern Territory) Act 1976, community living areas, and areas the Minister declares to be prescribed
areas, including town camps.

Maps of the prescribed areas, and a list of communities within those areas, can be found at
http://www.facsia.gov.au/nter/legis_areas.htm

What do you mean by banned?
Possession or control
The possession or control of prohibited material within a prescribed area is an offence. Separate offences
apply to possession of Level 1 prohibited material and Level 2 prohibited material.

Possession of Level 2 prohibited material — that is films and publications that have been classified RC or are
unclassified but would be classified RC — attracts a higher penalty than possession of Level 1 prohibited
material such as X18+ films. This is because RC material is considered high impact and is not able to be
legally sold or exhibited under the existing classification scheme.

The penalty for possession of Level 1 prohibited material is 50 penalty units, which is currently $5,500. The
penalty for possession of Level 2 prohibited material is 100 penalty units, which is currently $11,000.

What do you mean by possession or control?
Control is having physical or legal possession, while possession is having physical control or custody or
control recognised and protected by law. For example, someone might be in possession of material if they
have it on their person, in their house, or in their vehicle. A person might not have possession of material, but
will be in control of it if, for example, they have bought the material and then stored it in a post office box.

To establish the offence it needs to be proven that the person intended to possess the prohibited material.
For example, if the material is found in a house in which a number of families live the mere presence of the
material in that house is not enough to establish that the ‘owner’ or ‘lessee’ of the house intended to possess
it.

What if that person didn’t know the material was prohibited or that they were in a prescribed area?
A person must only be reckless as to whether the material is ‘prohibited material’ and whether they are in a
‘prescribed area’ to be guilty of the offence of possession. That is, it is not necessary for them to have known
that the material they possessed or controlled was prohibited, or that they were inside a prescribed area,
provided they are aware of a substantial risk that they were and, having regard to the circumstances known
to him or her, it is unjustifiable to take the risk. However, any material police believe to be prohibited material
may be seized.

Supply and trafficking
In addition to offences for possession, the laws also prohibit the supply of prohibited material in and to
prescribed areas. The penalty for supply is 100 penalty units, which is currently $11,000.

There is also a separate offence for supplying five or more items of prohibited material into a prescribed area.
Five or more items is considered to be a quantity likely to indicate a commercial transaction or that they
aren’t intended solely for personal use. The penalty for trafficking is 200 penalty units, which is currently
$22,000 or 2 years imprisonment.




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What do you mean by supply?
Supply is defined to include supply by sale, exchange, gift, lease, loan, hire or hire-purchase. This is not an
exhaustive list, but outlines some of the ways in which prohibited material may be placed in a person’s
possession or control.

In addition to ‘supplying’ material, it is also an offence to:
        prepare material, intending to supply any of it, or believing that another person intends to supply any
         of it, to a third person
        transport material, intending to supply any of it, or believing that another person intends to supply
         any of it, to a third person
        guard or conceal material, intending to supply any of it, or intending to assist another person to
         supply any of it, to a third person, or
      possess material, intending to supply any of it to a third person,
if that third person is in a prescribed area.

What if that person supplies material from outside a prescribed area?
The offence applies to activities conducted outside the prescribed areas, including the States and Territories,
other than the Northern Territory. For example, a mail order company which sends X18+ films from Canberra
into a prescribed area is committing an offence. Similarly, a mail order publisher sending
Category 1 - Restricted or Category 2 – Restricted magazines into a prescribed area is committing an
offence. This is intended to stop material at its source.

What if that person didn’t intend to supply prohibited material to a prescribed area?
If a person is suspected of supplying less than 5 items of prohibited material, it will be necessary to establish
that they intended to supply the material and that they were reckless as to whether the material is prohibited
and whether the person being supplied (ie: third person) is in a prescribed area.
However, a person who is suspected of supplying 5 items or more will be presumed to have intended to
supply the material. That is, it will be presumed that they intended to supply the material unless the person
proves that they did not intend to supply.

What if Australia Post or a courier delivers a package containing prohibited material into a prescribed
area?
The new offences do not apply to anything done in the normal course of providing a postal service. If, for
example, Australia Post merely delivers a package to an address within a prescribed area this does not
constitute supply by Australia Post. However, using a postal service to send prohibited material into a
prescribed area is an offence.

What if a retailer or vendor of X18+ material, who travels with pornography in their vehicle to and
from towns in the Northern Territory which are not within prescribed areas, drives on a road which
runs through a prescribed area?
Prescribed areas include roads and waterways that are within those areas. A vendor travelling on a road that
is in a prescribed area will be liable for possession offences even if the retailer is merely in transit and enters
a prescribed area without the intention of supplying. In addition, if they have 5 or more items in their
possession, the retailer would have to prove they did not intend to supply to escape trafficking offences.

If the retailer travels to a prescribed area with the intention of selling that material to people in the prescribed
area, the retailer will be caught by the supply offences. If they have 5 or more items — which is likely — the
trafficking offence will apply.

The objective of the laws is to remove, and keep out, the prohibited material from prescribed areas. Whether
a retailer who does not intend to supply would be charged with a possession offence would be a matter for
the police and prosecuting authorities.

Will the sale of X18+ and Category 1 – Restricted and Category 2 – Restricted publications from
remote service stations be allowed?
Yes, providing the X18+ films and Category 2 – Restricted publications are not being sold in a prescribed
area and the remote service station is a restricted publication area under section 55 of the Northern Territory
Classification of Publications, Films and Computer Games Act (the NT Classification Act),.

Under the NT Classification Act, Category 1 – Restricted publications must be contained in a sealed, opaque
material and bear the determined markings if it is sold outside a restricted publication area. If it is sold in a
restricted publications area the package need not be sealed in opaque wrapping. Category 2 – Restricted
publications may only be displayed in premises restricted to adults.

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What if a mining camp is within the prescribed area? Do the bans extend to these camps?
If a mining camp, or similar community, falls within the prescribed area, then persons in the mining camp
would be prohibited from possessing or supplying prohibited material. The Commonwealth Minister may
declare that an area in what would otherwise be a prescribed area is not a prescribed area.

How are these laws different to the laws which apply to the rest of the Northern Territory?
The laws work concurrently with existing State and Territory classification enforcement legislation. They do
not limit the operation or enforcement action of police under existing laws.

It is already illegal in the States and Territories, including the Northern Territory, to sell or exhibit much of the
prohibited material. This includes films that have been classified RC or are unclassified and have content that
exceeds the levels permissible at X 18+, such as sexual violence, coercion, demeaning portrayals, or
fetishes. Northern Territory laws also restrict the sale of X18+ material and prevent the sale of restricted
publications to minors.

However, the ban goes further than the legislation applying to the rest of the Northern Territory, which only
prohibits the possession of certain material if there is an intention to copy or sell the material. The laws make
mere possession or control of prohibited material in a prescribed area an offence.

How will the bans be enforced?
To facilitate the immediate removal of prohibited material, police will be able to seize material found in
prescribed areas where a police officer suspects, on reasonable grounds, that it is prohibited.

Seizure of potentially prohibited material may be made without obtaining a court order or conviction. If police
find what they suspect, on reasonable grounds, to be prohibited material in a prescribed area, then they may
seize it. It does not matter who possesses or controls the material. Unlike the new offences, if someone is in
possession or control of suspected prohibited material within a prescribed area the police can seize the
material without having to establish intention to possess or supply.

Police must still obtain a warrant or consent to enter and search premises.

What if the owner of seized material believes it is not prohibited material?
The laws provide an opportunity for persons to have material that is not prohibited returned to them.

The police are required to issue a notice to the owner of the seized material notifying them, among other
things, of why the material was seized and the procedures for possible return of the material.

A person may make a request that the material is returned within 60 days after the seizure notice. The
responsible officer may return this material if satisfied that the material is not prohibited material. If the
material is not returned, the owner may apply to the magistrate within 60 days after the responsible officer’s
refusal. The magistrate will determine whether the material is prohibited material and whether the material
may be returned.

What will be done with seized prohibited material which is not returned to the owner?
Any material which is not returned is forfeited to the Commonwealth and will be destroyed or otherwise
disposed of. A forfeiture order is not required.

Will material which was ‘legal’ before the bans commenced, and purchased before 14 September
2007, be subject to the bans?
All prohibited material within a prescribed area are now subject to the bans regardless of when that material
was purchased and whether it was previously ‘legal’ to possess or supply it.




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