More often than not, industry associations already have experienced lobbyists on board who know the ropes and are able to get their agendas in front of politicians. Success rates on individual campaigns vary. When an issue appears to be intractable, it’s either shelved for a later date or other lobbyists are brought on board who are closer to the Minister. But what happens when an issue becomes stuck in the parliament over many years and is crucial to the viability of a particular industry?

Australia’s adult retail and entertainment industry association, the Eros Association Inc, has recently had to grapple with this question and the way it chose to deal with it could represent a major political milestone for all industry associations.

Background
Adult shops in Australia are well known to most people even if you’ve never been in one. They retail a range of non-violent, erotic products from age-restricted premises including adult DVDs and publications, lingerie, novelties, sex education material and adult toys. There are 1,000 shops in this network across Australia now and it represents one of the fastest growing sectors in the retail industry. The benchmark product for most adult stores is the (non-violent erotic) X18+ video or DVD. Without this product, most retailers would have a hard time remaining profitable.

Everyone has a different view on this $2 billion a year, niche industry. Like organised religion, it’s not everyone’s cup of tea. But with La Trobe University recently identifying 25 per cent of Australian adults as regular customers, there is a demonstrable need for a regulated industry. The Eros Association believes that, using good old free market philosophy, governments should address the ‘need’ in their legislative focus before they address the moral concerns of a small minority.

X18+ films have been legal to import and possess in Australia since 1983 when the Hawke government set up Australia’s first national classification scheme. The idea was that all states would adopt this scheme as well as the different levels of classification, from the G rating through to the adults-only, X rating.

However before the ink was dry on the new legislation, NSW Christian MP, the Reverand Fred Nile, led a campaign directed at all state Premiers to have them ban the new erotic classification at a state level. He was quite successful and after a few years all the states decided that they would allow their constituents to legally possess X18+ films and legally purchase them but not to legally sell them.

Effectively, state governments imposed a prohibition that was placed fairly and squarely on the shoulders of the small business operator and not on the general community. It was a decision that said ‘We don’t want to appear to be supporting immoral activity against the wishes of the church but we also don’t want to suffer an electoral backlash over a very popular product’. So they had two bob each way and the confusion it created has continued to this day.

The law effectively says that it’s illegal in all states to sell a product that is legally classified by federal authorities. If ever there was a reason to do away with state governments, this was it. Police and magistrates all but turn a blind eye to the fact that these films are easily available from a variety of outlets and an unfortunately from an increasing number of mainstream stores. Of course in the ACT and NT there are no such prohibitions.

When the public company Adultshop.com listed on the Sydney and Berlin stock exchanges in 1999, the Eros Association began a major lobbying campaign to bring the state laws into line with the Commonwealth laws on adult films. Without this uniformity, public companies like Adultshop.com could not compete with the thriving ‘grey’ market in X rated films. Shareholders in an Australian company had a right to expect uniform laws to apply to that national company’s products – otherwise why have a national stock exchange? And surely that was the spirit of Section 92 of the Constitution?

Most state Attorney’s General privately told the Eros Association that on a personal level they were more than comfortable with legal sales of X rated films, however, it was never the right time to do this as an election was always looming or there was always a leadership challenge in the wings. After 20 years of half promises, nods and winks, not one intelligent argument was ever put forward to show how these bans benefited the citizens of the state. Or that the bans were demonstrably supported by a majority of people. For the Eros Association, enough was enough. It took a decision that effectively said to its members, ‘If we can’t beat them, we’ll join them’.

Forming the Australian Sex Party
After discussions with Eros Committee members and major stakeholders in the industry, the Eros Association announced last November that it would set up a new political party to try and further its objectives. This is possibly the first time that an Australian industry association has done this and it is a course of action that Eros would like to encourage others to follow.

Industry associations are ideally placed to form political parties – unlike many other community groups who are not used to managing large numbers of people and massaging consensus on issues. Getting the required 500 people to sign up to a political party is not as easy as you would think and there are quite a few groups around with one or two hundred people they have signed up but just can’t muster the resources to get the rest.

Writing a constitution is not hard for someone who has just written one or updated one for an industry association and the Australian Electoral Commission (AEC) is one of the most helpful and professional government agencies that this organisation has ever dealt with.

Naming the party was an interesting process. Eros CEO, Fiona Patten, said she had been guided by the late, great, Don Chipp. “He once told me to never underestimate the effects of not getting recognised”, she said. “He was saying that for a new party, it doesn’t pay to be too careful about your name. Just make sure people don’t forget it!” She said the party was mostly aimed at winning the last Senate seat in each state and not trying to cover too much ground. “Just a simple message with a simple set of policies, all with sex and gender issues as their bottom line.”

She has outlined a dozen initial major policies that fall within four or five portfolio areas including censorship law reform, abortion, gay marriage, child sex abuse in religious institutions and a national sex education curriculum in schools.

“The hardest part of the whole process comes when policies have to be drafted and if your association has to take all its members into account in doing this, it could become almost unworkable”, she said. “What you need is a core of your committee members, a few major funds contributors, a couple of creative minds from outside your industry and a couple of political advisors from other parties who have become disenchanted with their old masters and are looking for something new to support. This group becomes your policy committee.”

Gaining official registration
On 5 August, the Australian Sex Party came into being with a final signature by the Australian Electoral Commission. But official registration did not come easily. The application set a precedent for the AEC. It had to consider whether registration of the party offended against Section 129(1)(b) of the Commonwealth Electoral Act and whether the name of the party and/or its abbreviation may have been held to be ‘obscene’. This issue has never previously arisen before in Australian electoral history or psephological enquiry.

The AEC’s five page minute entitled The Meaning of ‘Obscene’ under the Commonwealth Electoral Act 1918, determined that the Australian Sex Party’s name was not obscene. The paper stated that the objections the AEC received relating to the party’s policies and its organisational base, were ruled to have been outside the grounds for refusal listed in s.129(1). However those objections that stated that the name Australian Sex Party invoked “orgiastic notions” were duly considered with an in-depth analysis of case law and statutes around the issue.

The findings were that the name was unlikely to ‘deprave and corrupt’ voters and that “The name was most likely selected because of the substance and subject matter of many of the party’s key policies, such as the legalisation of marriage for same sex couples, the introduction of sex education into schools, and the listing of drugs used to treat sexual dysfunction on the Pharmaceutical Benefits Scheme…The perception by any member of the public that the name is ‘obscene’ is simply not enough.”

Sex Party convenor, Fiona Patten, said that the landmark ruling and the thorough investigation carried out by the AEC were surprising in the first instance, for what was notionally such a non-offensive name, but was evidence that the AEC cared about free speech and the democratic rights of various groups in the community. She said the AEC appeared to be able to interpret community opinion on obscenity far better than the major political parties could.

“One of the reasons for establishing the party was to provide a positive platform for sexual issues amongst the negative notions of sex that most politicians and political parties have”, she said. “The fact that the AEC spent so much time considering the word ‘sex’ further exhibits our need for honest and open discussion about sexual matters – be they censorship, education, health or discrimination”.

The future
Now that the registration process is complete, the party will turn its head to developing a wide-ranging platform and a detailed policy suite. It will also begin the search for suitable candidates for both Senate and House of Representative seats. Patten said the party was more inclined towards female candidates, of any age, who had a broadminded and upbeat approach to life and who may also have had a small or family business background.

She said that the party was against the third sector forming a compact with government and that national associations would be far better off seeking political representation themselves, rather than trusting either of the major parties to do the right thing by them.