Television and Film Fact Sheet - updated May 2010

Film Funding

As part of the Australian Screen Media Support Package, the Australian film and television industry received a major boost in support in 2007-08 through the Australian Screen Productive Incentive. The incentives which aim to stimulate and advance domestic production include three mutually-exclusive tax offsets:

· the Producer Offset of up to 40%

· the Location Offset of 15%

· the PDV Offset of 15%

The tax offsets are provided for by Division 376 of the Income Tax Assessment Act 1997 (Cth).

Eligibility for a Location and PDV Offset is based on expenditure thresholds, unlike the Producer Offset which is exclusively for productions with Significant Australian Content (SAC) or official co-productions.

The Producer Offset

The Producer Offset is administered by Screen Australia who issues eligible applicants with a Final Certificate. The rebate is paid through the Australian company tax system.

The refundable tax offset is worth:

· 40% of QAPE for feature films (generally 33% of the total budget where all expenditure is made in Australia)

· 20% of QAPE for all non-feature films (generally 17% of the total budget where all expenditure is made in Australia)

To be eligible the film must:

o be completed;

o have ‘significant Australian content’ or be an official co-production;

o meet or exceed the relevant threshold in regards to its qualifying Australian production expenditure (QAPE);

o be in an eligible format.

The applicant company must be an Australian company or a foreign company with an Australian permanent residency and an Australian Business Number (ABN), who has either carried out, or made arrangements for carrying out, all the activities for making the film or program.

For detailed information regarding eligibility criteria see the Screen Australia website.

The Location and PDV Offset

The Location and PDV Offsets are administered by the Department of the Environment, Water, Heritage and the Arts (DEWHA).

The Location Offset (formerly Refundable Film Tax Offset (RFTO)) is designed to attractiveness of Australia as a location to shoot large-budget film and television productions, and thereby increase the opportunities for the Australian film and television industry. It does this providing a rebate on Australian expenditure of large-budget productions that do not satisfy the significant Australian content test for the Producer Offset.

The PDV Offset is designed to advance Australia’s reputation as the best and most cost-effective visual effects, post production and animation sector. It does this by providing a rebate on Australian expenditure for post, digital and visual effects production (PDV) work on large budget productions, which do not need to be shot in Australia.

To access either Offset the following criteria must be satisfied:

· the minimum level of QAPE;

· be an eligible format/genre; and

· be an eligible company.

There is also a prescribed timeframe for production which must be met to access the Location Offset.

For detailed information regarding eligibility for either Offset go to the DEWHA website.

Further Film Support Programs

The Australian International Co-Production Program is administered by Screen Australia and aims to promote cultural development and cultural exchange by facilitating international film co-productions.

For the guidelines concerning Foreign Actors for Film or Television see the DEWHA website.

Classification and Censorship

Film

Over the last decade, a small number of contentious classification decisions by the Classification Board and Classification Review Board (‘the Boards’), reignited debate over Australia’s peculiar film classification scheme and censorship policy. The National Classification Scheme which is premised on the principle that adults should be able to read, hear and see what they want, ostensibly focuses on classification as opposed to censorship. Former Attorney-General Daryl Williams fiercely asserted that Australia does not have a censorship policy but rather a classification system, which serves the function of providing information to consumers so that they can make an informed viewing decision. The current Director of the Classification Board, Mr Donald McDonald, however carefully conceded that the scheme is ‘largely about classifying material’.

Censorship policy aims to serve the social purposes of protecting the community from offensive material, which a reasonable adult would object to; to maintain a level of public decency; and to prevent the desensitisation of society to offensive material (Hutchins v The State of Western Australian [2006] WASCA 258 [4]). When making a classification decision, the application of the “reasonable adult” test must accommodate the contemporary community standards of the various racial, religious, political, and social subgroups (Adultshop.com Ltd v Members of the Classification Review Board [2007] FCA 1871 [170]-[172]). Classification is therefore a delicate balancing act in which a sensible middle ground must be reached as it is unlikely that a consensus will ever be obtained due to the invariably diverse and forever changing community standards.

The legitimate exercise of classification is achieved by removing government from the role of censor through the provisions of the Classification (Publications, Films and Computer Games) Act 1995, which establish the independent bodies of the Boards. Transparency and independence is further guaranteed by the requirement that the Boards be representative of society, and make value judgments by applying the Guidelines, which reflect community attitudes. The latest research assessing classification decisions (Classification Decisions and Community Standards Report 2007) purportedly confirms that Board decisions have been in line with current community standards.

The subjectivity of decision-making has led to much controversy as both proponents for and against the scheme argue that classification decisions are inconsistent and fail to adequately provide clear consumer advice. Libertarians have especially contended that the application of the guidelines to the classifiable elements of violence and sex are contradictory. Director/writer Peter Duncan, corroborated the allegation of a double standard when comparing the R rating that his film, Passion, received, and the MA rating given to Blade. Duncan argues that classification decisions forbid the truth by classifying films that offer a truthful, intelligent analysis of life a restricted classification, but allow cartoon violence, which has produced a desensitised society that can cope with pretty much all forms of violence on the screen. The general rule, “simulation, yes – the real thing, no”, contained in the R18+ classification guidelines, is further evidence of sensitivity to sex in Australian censorship policy.

In 2001 the federal government introduced amendments (Classification (Publications, Films and Computer Games) Amendment Act 2001) increasing the scope of persons regarded as a ‘person aggrieved’ who is able to seek review of classification decisions of legally restricted films (MA, R, X and RC [refused classification]). Under the amendments a person or organisation who has engaged in a research or activities concerning the contentious issues of the subject matter or theme of the restricted film, will be able to apply for review provided that they are able to establish the existence of the interest prior to the making of the restricted classification decision. The motivation of the amendment is to provide greater flexibility in the review process however a further corollary should also be the increased likelihood that decisions will reflect community standards by subjecting decisions to a greater level of scrutiny and public debate. Conversely, libertarian groups fear that the amendments will be exploited by religious, parental, or anti-gay groups and other such organisations pursuing a particular cause, thereby resulting in further censorship and obstruction to artistic freedom of expression.

The severity of Australia’s classification decisions in comparison to other liberal democracies has led to a suppression of artistic expression despite the fact that films are not edited or cut by the Boards. The consequences of a restricted classification (MA15+, R18+, X18+), or a decision to refuse classification, in effect dictates artistic expression by forcing artists to conform to the guidelines in order to obtain the lowest classification. The danger that censorship poses to freedom of expression is arguably the heart of the libertarian argument. History has shown that censorship has been used as a political weapon not only by dictatorships, which have used it for social control and oppression, but also by democracies to silence public debate and conceal media reporting. Thus far the classification scheme has survived the implied freedom to political communication, although its fate will be determined on a case by case basis.

Television

Television broadcasting is regulated by the Australian Communications and Media Authority (ACMA), which was established on 1 July 2005 through the merger of the Australian Broadcasting Authority and the Australian Communications Authority. ACMA’s role, authority, and policy objectives are provided for by the Broadcasting Services Act 1992 (Cth) and the Australian Communications and Media Authority Act 2005 (Cth). The function of ACMA in television program classification is to assist in self-regulation by developing codes of practice with industry groups. Once registered, ACMA then monitors the compliance of the codes and manages any unresolved complaints that have arisen from them.

On 1 January 2010, the 2010 Commercial Television Industry Code of Practice came into effect. Amongst other matters prescribed under s 123 of the Broadcasting Services Act, the Code regulates TV classification in accordance with community standards based on an established system of viewing zones, which is primarily intended to protect children from unsuitable material. The Code also requires broadcasters to provide consumer information through on-screen classifications and advice for higher-classified programs. Failure to comply with the Code may result in serious penalties for TV broadcasters under the Broadcasting Services Act.

Again like film, television censorship and classification is controversial owing to the difficult balancing act of respecting community standards and the concept that adults should be able to see what they want. The airing of R18+ content on television provides the greatest source of contention as cynics perceive the government as a nanny state, removing the parental responsibility of seeing that children are in bed at a certain time with the consequence that at no time day or night will an R-rated uncut film be broadcasted. Television broadcasters usually censor R18+ material in order to meet the MA15+ or AV15+ rating, which is possible as TV shows and films are classified by the TV broadcasters themselves and therefore the OFLC classification may not apply.

Whilst broadcast television has become more lenient towards coarse language and significant violence, R-rated sexual content remains heavily restricted. For instance, “fuck” and “cunt” have become common uncensored phrases on television programs such as Gordon Ramsay’s Kitchen Nightmares, however programs containing sexual content must be suitable for minors 15 years and over, as MA15+ (apart from violence) is the strongest material permitted on free-to-air television. The sensitivity towards sex on television can also be evidenced through the major changes introduced by the 2010 Code concerning MA classification criteria and reality TV programs.

Formerly, MA classification criteria prescribed visual depictions of intimate sexual behaviour to only be implied or simulated “discreetly”. This requirement has been removed since the term “discreetly” caused much confusion in the context of MA classified context. However, the category still requires that visual depictions of sexual behaviour and nudity be relevant to the program context and that verbal references to sexual activity, whilst may be detailed, cannot be of high impact. Similarly, in response to concerns that the Big Brother series reality TV was not meeting community standards, material that presents participants in reality TV programs in a sexual way which seriously devalues a person is now prohibited.

Although R18+ rated material is permitted on subscription television, it is severely limited in comparison to other nations as access to R18+ material is restricted to those with appropriate disabling devices (ASTRA, Codes of Practice 2007, Subscription Narrowcast Television). Moreover, X18+ material can only be legally shown in the ACT on TransTV Digital. In December 2009, FOXTEL implemented a more rigorous classification strategy in recognition of the community sensitivity surrounding adult content, after it was found to have breached the ASTRA Subscription Television Codes of Practice 2007 by showing programs containing sexual content that exceeded the MA15+ classification.

Links

Film Funding

http://www.screenaustralia.gov.au/

http://www.arts.gov.au/film

http://www.artslaw.com.au

Film Classification

http://www.oflc.gov.au

http://www.ag.gov.au/www/agd/agd.nsf/Page/Classification_policy

http://www.artslaw.com.au

http://libertus.net

http://www.watchoncensorship.asn.au

http://www.refused-classification.com/