On Tuesday this week, without fanfare or even a debate, the NSW parliament passed in the lower house an Amendment Bill that may, in the words of its own Legislative Review committee “be an undue trespass on personal rights and liberties as there is a lack of fairness in their scope and operation and potentially puts the accused at a significant disadvantage”.

Basically these draconian new censorship laws will give police the power to classify adult DVDs, just by looking at their covers. Earlier this year, the NSW government sent a 40-year-old gay adult shop owner to jail for selling adult DVDs that had already been classified X18+ by federal authorities. It was the first time that someone had been sent to jail in Australia since 1947, for a censorship offence.

Now a police officer in NSW can make a snap decision about the classification of a film, simply based on its cover, that could see a shop assistant go to jail. Classifying films according to the Classification Guidelines requires years of training and studying and with respect, most police officers do not understand the differences between R18+, X18+ or Refused Classification (RC) material. This is a truly frightening move towards a police state in NSW.

The NSW government claims that the Classification Enforcement Amendment Bill 2010, is a response to the rising costs for police in getting material classified when prosecuting a case. In 2008-09 the NSW police submitted 161 films to be classified. The first 100 of these were free. After that the police had to pay commercial rates at an average of $850 per film. But why classify so many films anyway? You only need to submit one film to classification to get a jail sentence and a $16,000 fine.

These new laws are an attempt to pressure adult shop owners into pleading guilty without any evidence being tendered. If the shop owners say they are not happy with the police evaluation of their films, then under the new laws they will have to pay for the classification fee themselves. But this is what is already happening, so the Attorney-General is being extremely disingenuous in his reasons for this.

This is, of course,  preposterous situation as it reverses the standard of proof and the defence has little means of disproving the assertion as against the ample capacity of the prosecution to independently prove an assertion …  it all boils down to the issue of  who cares as they are only dealing with p-rnographers who are probably guilty, so why should the state waste taxpayer money proving the essential elements of charges that  attract monetary penalties in excess of what is the maximum for dealing heroin.

The scenario I can see being played out is a police officer tells the shop employee you sign the notice saying that these 10 films are X and we prosecute on that or we take 400 films and classify them all. So not only will the defendant face a jail sentence and a fine but also a bill for about $340,000.

The legislative review stated its concern about this too.

Secondly, the committee is concerned with the power imbalance between the prosecution and the accused, with a well-resourced and knowledgeable prosecution trying to enter into an agreement with a likely less resourced and knowledgeable accused. This situation may also be potentially intimidating and there is a risk that the accused may agree to the classification notice sent by the prosecution without proper consideration or being properly informed of the issues and risks in doing so. The committee also has concerns with this process insofar that it circumvents the proper channels for film or game classifications by bypassing the need for an application to the Classification Board for appropriate determination.

In the face of a jail sentence these days, the police can put even more pressure on the defendant for a signature on a notice.

Of course, the real question this raises is why is the NSW government sending people to jail for selling X rated films from adult shops to adults anyway? Is this really what we want our police spending their precious time on?

What is on the NSW Attorney-General’s mind? A cushy seat on the bench after NSW Labor loses the election?

The legislation goes on to show the Attorney-General’s ignorance of the law in other states regarding publications by including a new law in the package that allows for the automatic “calling in” of a publication, called in by any other state. Has he forgotten that SA, WA and Tasmania all retain the power to make their own laws on publications? What he is saying is that if Tasmania bans a particular magazine, then NSW will blindly follow suit. A copy of Australian Hustler that was produced in NSW and classified by the Federal Classification Office was recently refused classification in SA. Under these new laws, the NSW company that produced that magazine could go to jail even though it had been classified by the federal government and sold in NSW without complaint!

The real issue for the ALP is that state Labor laws on censorship are increasingly and dramatically diverging from federal ALP philosophy on censorship. In Labor states you can now go to jail for selling material that the federal minister Brendan O’Connor has classified. If the ALP wants to put itself forward as a consistent and reliable policy maker, O’Connor needs to step in and show some leadership here.