Michael Brown, Melita Berndt, Ben Ross, Valentina Srpcanska v the members of the Classification Review Board of the Office of Film and Literature Classification [1997] FCA 474 (6 June 1997)

Administrative law - judicial review - decision of Classification Review Board to confirm Chief Censor's decision to refuse classification of publication - whether Board erred in law in construction of classification code - whether the Board failed to take into account relevant considerations or took into account irrelevant considerations.

Constitutional law - implied constitutional freedom of political communication and discussion - whether Board's classification decision infringed the freedom.

Civil and political rights - freedom of speech and expression - consideration of limits on freedom of speech and expression in Australia and other jurisdictions.

Words and phrases - "crime" - "instructs in matters of crime or violence".

Legislation

Classification (Publication, Films and Computer Games) Act 1995 (Cth) ss7(1), 9, 11, 96(1)

Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic) ss3, 25, 30, 31, 32, 47, Schedule (National Classification Code)

Cases

Attorney-General v. Guardian Newspapers (No. 2) [1990] 1 AC 109

Chaplinsky v. New Hampshire [1942] USSC 50; 315 US 568 (1942)

Thornhill v. Alabama [1940] USSC 74; 310 US 88 (1940)

Brandenburg v. Ohio [1969] USSC 139; 395 US 444 (1969)

Derbyshire County Council v. Times Newspapers Ltd [1992] UKHL 6; [1993] AC 534

Theophanous v. The Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104

Nationwide News Pty Ltd v. Wills [1992] HCA 46; (1992) 177 CLR 1

MacAlister v. The Queen [1990] HCA 15; (1990) 169 CLR 324

Potter v. Minahan [1908] HCA 63; (1908) 7 CLR 277

Bropho v. State of Western Australia [1990] HCA 24; (1990) 171 CLR 1

Coco v. R [1994] HCA 15; (1994) 179 CLR 427

Wheeler v. Leicester City Council [1985] UKHL 6; [1985] 1 AC 1054

Proprietary Articles Trade Association v. Attorney-General for Canada [1931] AC 310

Gapes v. Commercial Bank of Australia Ltd [1979] FCA 62; (1979) 27 ALR 87

Attorney-General v. Bradlaugh (1885) 14 QBD 667

Polites v. The Commonwealth [1945] HCA 3; (1945) 70 CLR 60

Irving v. Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 228; (1993) 115 ALR 125; (1996) 139 ALR 84

John Fairfax Publications Pty Ltd v. Doe (1994) 37 NSWLR 81

Minister of State for Immigration and Ethnic Affairs v. Teoh [1995] HCA 20; (1995) 183 CLR 273

Collins v. Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 36 ALR 598

Minister for Aboriginal Affairs v. Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration and Ethnic Affairs v. Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Kioa v. West [1985] HCA 81; (1985) 159 CLR 550

VG 507/96 MICHAEL BROWN MELITA BERNDT BEN ROSS VALENTINA SRPCANSKA v THE MEMBERS OF THE CLASSIFICATION REVIEW BOARD OF THE OFFICE OF FILM & LITERATURE CLASSIFICATION

COURT MERKEL J

PLACE MELBOURNE

DATE 6 JUNE 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY

GENERAL DIVISION No. VG 507 of 1996

BETWEEN:

MICHAEL BROWN

MELITA BERNDT

BEN ROSS

VALENTINA SRPCANSKA

Applicants

- and -

THE MEMBERS OF THE CLASSIFICATION REVIEW

BOARD OF THE OFFICE OF FILM & LITERATURE CLASSIFICATION

Respondents

COURT: MERKEL J

PLACE: MELBOURNE

DATE: 6 JUNE 1997

The application is dismissed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIAN DISTRICT REGISTRY

GENERAL DIVISION No. VG 507 of 1996

BETWEEN:

MICHAEL BROWN

MELITA BERNDT

BEN ROSS

VALENTINA SRPCANSKA

Applicants

- and -

THE MEMBERS OF THE CLASSIFICATION REVIEW

BOARD OF THE OFFICE OF FILM & LITERATURE CLASSIFICATION

Respondents

COURT: MERKEL J

PLACE: MELBOURNE

DATE: 6 JUNE 1997

REASONS FOR JUDGMENT

Background facts

The applicants were the editors of the July 1995 edition of Rabelais which is a monthly student journal published by the La Trobe University Students' Representative Council ("the Rabelais publication").

The particular edition included an editorial, a variety of political and satirical articles, graphics, poetry, various reports to students and letters to the editor.

A four page article entitled "The Art of Shoplifting" ("the article"), together with certain artworks of Barbara Kruger, appeared at pp.20-23.

The introductory words to the article stated:

Shoplifting is a topic that is practically relevant to many and it should therefore not become an exclusive craft confined to a small shoplifting elite. On the contrary, shoplifting is an art that deserves the widest possible dissemination. For your convenience we have printed below a step by step guide to shoplifting. Good luck.

The introductory section of the article discussed the desirability of redistributing wealth from the rich to the poor. The section's content is primarily political. After suggesting that a partial solution to the distribution of wealth "may be to STEAL", the introductory section concludes:

No, the injunction against stealing from capitalism is itself a capitalist ideology and should be spurned as such. Although we have been taught that 'thou shalt not steal', an order historically backed by threats of divine retribution, this should not for one minute stop us from taking the redistribution of wealth into our own hands; Believe me, no-one is likely to do it for us.

What follows is a list of effective methods and observations that may prove useful.

The body of the article sets out in detail the "effective methods" and "observations that may prove useful" under the following headings:

preparing oneself for the big haul

on entering the maze

blind-spots and other lifting techniques

exchanging crap for more crap

leaving the store safely

The concluding section entitled "the end" offers advice "if you get caught" and includes the telephone numbers of several legal services.

In July 1995 a co-operative legislative scheme for censorship operated in Australia. Under the scheme the classification of publications, which occurred under the Classification of Publications Ordinance 1983 (A.C.T.), was adopted and given effect to under complementary State and Territory legislation. Under the Ordinance, as amended in 1989, any publication which "instructs in matters of crime or violence" was to be refused classification. Under State legislation, such as the Classification of Films and Publications Act 1990 (Vic), classifications which were or "would be" refused classification were defined as "objectionable publications": see s.3. Objectionable publications, as defined, were not to be published, sold or distributed: see ss.48, 49, 50. A penalty of 240 penalty units or 2 years imprisonment applied to offences under ss.48, 49 and 50.

The Retail Traders Association of Victoria applied under the Ordinance to the Chief Censor to refuse classification of the Rabelais publication. The Chief Censor refused classification for the publication on the ground that the article "instructs in methods of shoplifting and associated fraud." The applicants sought a review, out of time, of the Chief Censor's decision by the Classification Review Board ("the Board"). On 3 May 1996 the Board granted the requisite leave for the review to proceed out of time.

On 26 July 1996, after a re-hearing of the matter on the merits, the Board, in a document entitled "Decision and Reasons for Decision", confirmed the decision of the Chief Censor to refuse to classify the Rabelais publication.

The applicants have applied to the Court to review the decision of the Board under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act").

The legislative framework

The Board was established under the Classification (Publication, Films and Computer Games) Act 1995 (Cth) ("the Act").

The Act was enacted by the Commonwealth as an integral part of a revised co-operative legislative scheme which provided for uniform censorship throughout Australia. The revised scheme was established pursuant to an agreement made on 28 November 1995 between the Commonwealth, the States and the Territories ("the co-operation agreement"). In essence, the Act was to provide for the classification of publications, films and computer games. Complementary laws were to be passed in the States and the Territories to give effect to and enforce classification decisions made under the Act.

The Act provided for classifications ranging from unrestricted or general to "RC (Refused Classification)" for publications, films and computer games. The classification of publications was provided for in s.7(1):

Types of classifications

7.(1) The following are the different types of classifications for publications in ascending order:

Unrestricted

Category 1 restricted

Category 2 restricted

RC (Refused classification).

Section 9 provided:

Classification in accordance with the Code

9. Publications, films and computer games are to be classified in accordance with the Code and the classification guidelines.

The Code was set out in the Schedule:

NATIONAL CLASSIFICATION CODE

Classification decisions are to give effect, as far as possible, to the following principles:

(a) adults should be able to read, hear and see what they want;

(b) minors should be protected from material likely to harm or disturb them;

(c) everyone should be protected from exposure to unsolicited material that they find offensive;

(d) the need to take account of community concerns about:

(i) depictions that condone or incite violence, particularly sexual violence; and

(ii) the portrayal of persons in a demeaning manner.

PUBLICATIONS

Publications are to be classified in accordance with the following Table:

Section 11 sets out the matters to be considered in a classification decision:

Matters to be considered in classification

11. The matters to be taken into account in making a decision on the classification of a publication, a film or a computer game include:

(a) the standards of morality, decency and propriety generally accepted by reasonable adults; and

(b) the literary, artistic or educational merit (if any) of the publication, film or computer game; and

(c) the general character of the publication, film or computer game, including whether it is of a medical, legal or scientific character; and

(d) the persons or class of persons to or amongst whom it is published or is intended or likely to be published.

Classification guidelines were determined in accordance with s.12(1) of the Act but it was common ground that the guidelines were not relevant to the issues arising in the present case.

The Board was established under s.72 of the Act. The Board's members, who are to be "broadly representative of the Australian community" (see s.74(2)), are empowered to deal with a matter by majority decision: see s.79(1).

Under the transitional provisions, contained in Part 9 of the Act, the classification decision of the Chief Censor has effect as if it had been made by the Classification Board under the Act: see s.96(1). Accordingly, the review of that decision by the Board was to be made under and in accordance with the censorship scheme provided for in the Act rather than that provided for under the Ordinance.

The complementary legislation enacted in Victoria pursuant to the co-operation agreement was the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic). The statutory scheme under that Act, including the penalties in respect of publication of "objectionable publications" (which included publications classified RC or which would, if classified, be classified RC) was similar, but not identical, to that provided for under the 1990 Victorian Act: see ss.3, 25, 30, 31, 32, 47 of the 1995 Act. Under both the 1990 Act and the 1995 Act an "objectionable publication" includes a publication which "promotes, incites or instructs in matters of crime or violence": see s.3 of each Act. Under the 1990 Act it is a defence to charges that may be brought in relation to an objectionable publication to establish that since the alleged offence the publication has been classified: see s.55. Under the 1995 Act, the classification of a publication as "Unrestricted" after the alleged offence is a defence to some offences under the Act: see ss.25, 30, 31.

The applicants have been charged with committing offences under Part 6 of the 1990 Act in relation to their role in publishing and distributing the Rabelais publication. Accordingly, if the Board classified the Rabelais publication containing the offending article in a category other than "RC (Refused Classification)" that would appear to afford the applicants with a complete defence to the charges brought against them: see s.55 of the 1990 Act.

The Board's decision

The main findings of fact by the Board were stated as follows:

The Review Board agreed with the Chief Censor that the article provided instruction in the crimes of theft (shoplifting) and fraud.

The Review Board found that the article intended to and, in fact, does provide practical instruction in techniques of shoplifting. These include "preparing oneself for the big haul", "on entering the maze", "blindspots and other lifting techniques", "exchanging crap for more crap", "leaving the store safely", "the end" (if caught). The Board found that there is considerable detail provided in regard to methods, and hazards likely to be encountered.

The tone of the article was instructional, using exhortations such as "suss out", "don't be put off", "Try to find where...", "Make sure", "always double back", "never get too confident". The layout of the major part of the article added to the appearance of instruction, by being divided into six sections, with headings and numbered sub-headings.

The writing was not without humour, but lacked indicators that it was intended to be satirical. The tone was at times considered by the Board to border on malicious, and was seen to lack literary or artistic merit.

A minority of the Board took the view that while the article was seen to be "instructional in shoplifting", the context of the publication and the nature of the crime were such that the publication should not be refused classification.

The majority of the Board concluded that the publication "instructed in matters of crime" and should therefore be refused classification.

In giving its reasons for decision the Board stated, inter alia:

The Review Board based its decision on the publication Rabelais Vol 29(6) on the content, theme and tone of the article "The Art of Shoplifting", as described in 5.3, finding that there were significant indicators that the article was intended to "instruct in matters of crime". The article lacked indicators of satire, or tongue-in-cheek treatment.

....

The content of Rabelais Vol 29(6) is acknowledged to be political in flavour. However, as noted in para 5.1, the major part of the article aims to be a "step by step guide to shoplifting", and in the unanimous view of the Board constitutes "instruction" in crime.

....

The Board has weighed the evidence of intent to provide instruction in the crime of theft, with considerations of the nature of the publication and the nature of the audience. In the majority view, the two latter factors do not provide a sufficient reason for not finding that the publication "instructs in crime". The minority held that the nature of the publication and its contents were mitigating considerations.

In respect of its finding that the article instructed in matters of "crime" the Board said:

The Review Board found that the term "crime" as used in Para 1(c) of the Publications section of the National Classification Code was not defined. It therefore found that it is obliged to use the plain meaning of the term, ie all crime. Shoplifting and fraud are crimes in every Australian jurisdiction.

and

The Review Board notes that the prohibition against publications that "promote, incite or instruct in crime" which formerly existed in the ACT Classification of Publications Ordinance has been preserved in the Act's National Classification Code. There is no reason to conclude that the intention of the legislators was to restrict "crime" to "violent" crime only.

The applicant tendered other articles which it was claimed also dealt with shoplifting. The Review Board took the view that the Act does not prohibit or limit discussion or debate about crime. The intent to instruct in crime is the critical issue.

The Review Board took into account the expressions of concern about the cost of shopstealing ($1b per year) to large retailers, presented on behalf of the Retail Traders Assoc. of Victoria. The RTAV argued that the article had been reprinted a number of times by other university newspapers. Failure to refuse it classification would result in further reprinting. The view of the RTAV was that the article was instructional and detailed.

In its decision the Board discussed each of the matters set out in s.11 of the Act and had regard to the principles contained in the Code to the extent that those matters and principles were applicable to a decision on an article alleged to "instruct in matters of crime".

The applicants' submissions

The applicants' submissions ranged far and wide. In essence the applicants contended that the imposition of an RC classification on the Rabelais publication impugned the freedom of speech and expression to which all in Australia are entitled. The applicants' main submissions were that:

(a) the Board's decision was inconsistent with and breached the applicants' implied constitutional right to freedom of political discussion and communication;

(b) the Board erred in law in construing the Code and, in particular, failed to have regard to:

* the applicants' constitutional right to freedom of political discussion and communication;

* the applicants' common law right to freedom of speech and expression;

* Article 19 of the International Covenant on Civil and Political Rights, to which Australia is a party, which provides that everyone "shall have the right to freedom of expression".

(c) the Board failed to characterise properly the article and, in particular, did not have proper regard to the political and satirical context of the article and the Rabelais publication;

(d) the Board erred in law in giving a literal interpretation to the Code;

(e) the Board failed to have regard to relevant considerations and had regard to irrelevant considerations;

(f) the Board's pre-occupation with the "intent" of the article, rather than its objective characterisation under the Code, demonstrated that the Board misdirected itself as to the issues it was required to address.

Notices under s78B of the Judiciary Act 1903 (Cth) were given in respect of the constitutional issues.

The respondents' submissions

The respondents responded in detail to each of the applicants' submissions. In substance the respondents contended that:

(a) the Board did not err in its construction of the Code;

(b) the Board properly construed the article in question with due and proper regard to both its context and content;

(c) the Board had regard to the relevant considerations to which it was required to have regard and did not have regard to any irrelevant considerations;

(d) the Board referred to the "intent" of the article solely in an objective sense and as one way of testing its characterisation of the article;

(e) the decision made by the Board was one which, on the material, was reasonably open to it.

Freedom of Speech and Expression

The Act provides for the classification of material according to legislated standards of public morality prescribed in the Code. In enforcing that morality the co-operative Federal, State and Territory statutory scheme correspondingly inhibits, and in the RC classification prohibits, certain prescribed speech and forms of expression.

It can be readily accepted that freedom of speech and expression is fundamental to democratic society. It is:

one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection. (Retail, Wholesale & Department Store Union, Local 580 et al v. Dolphin Delivery Ltd (1986) 33 DLR (4th) 174 at 183 per McIntyre J.)

As was said by Lord Simon of Glaisdale in Attorney-General v. Times Newspapers Ltd [1974] AC 273 at 320:

The public interest in freedom of discussion (of which the freedom of the press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves.

Although in many democratic societies the freedom enjoys constitutional protection the freedom is not absolute. Bingham LJ in the Court of Appeal in Attorney-General v. Guardian Newspapers Ltd (No. 2) 1990 1 AC 109 at 214 quoted the following words of the distinguished American author, Archibald Cox:

Freedom of expression, despite its primacy, can never be absolute. .... At any time unrestrained expression may conflict with important public or private interests .... Some balancing is inescapable. The ultimate question is always, Where has - and should - the balance be struck? (Freedom of Expression (1981) p.4)

Even John Stuart Mill in his famous essay On Liberty (1859) accepted that the liberty of action of the individual in a civilised community may be restricted by the state "to prevent harm to others".

In section 1 of the Canadian Charter of Rights and Freedoms the freedom of expression guaranteed by section 2(b) of the Charter is subject "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".

Article 10(2) of the European Convention on Human Rights provides that the freedom of expression guaranteed by article 10(1) may

"...be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

Article 19(3) of the International Covenant on Civil and Political Rights ("ICCPR") also provides that the right to freedom of expression may be subject to such restrictions as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

The freedom enjoys its widest protection under the First Amendment to the Constitution of the United States which provides that Congress may make no law "abridging the freedom of speech". The Supreme Court of the United States has always accepted that the freedom is not absolute and that there are certain classes of speech which have "never been thought to raise any constitutional problem": see Chaplinsky v. New Hampshire [1942] USSC 50; 315 US 568 (1942) at 572 per Murphy J delivering the opinion of the Court. In that regard, it has been accepted that the First Amendment would not restrict the "power and duty of the State to take adequate steps to preserve the peace and to protect the privacy, the lives and the property of its residents...": see Thornhill v. Alabama [1940] USSC 74; 310 US 88 (1940) at 105 per Murphy J. By way of example

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre, and causing a panic. (see: Schenck v. United States 249 US 49 (1919) at 52 per Holmes J.)

One of the acknowledged interests which may restrict the constitutionally protected freedom of speech is the need to protect against words which may induce the commission of crime. Dr Alexander Meiklejohn states in his work Free Speech and Its Relation to Self-Government (1948) at 18 that the legislature has the right and duty to prohibit certain forms of speech:

Words which incite men to crime are themselves criminal and must be dealt with as such.

See also Brandenburg v. Ohio [1969] USSC 139; 395 US 444 (1969) at 447.

Counsel for the applicants could not point to any instances in the free speech jurisprudence of the United States or other jurisdictions where constitutional protection is given for speech which might be likely to cause or induce the commission of a crime.

The freedom as set out in Article 10 of the European Convention has been recognised as consistent with the common law. In Attorney-General v. Guardian Newspapers (No. 2) [1990] 1 AC 109 at 283-4 Lord Goff of Chieveley said:

Finally, I wish to observe that I can see no inconsistency between English law on this subject and article 10 of the European Convention on Human Rights. This is scarcely surprising, since we may pride ourselves on the fact that freedom of speech has existed in this country perhaps as long as, if not longer than, it has existed in any other country in the world. The only difference is that, whereas article 10 of the Convention, in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it.

....

It is established in the jurisprudence of the European Court of Human Rights that the word "necessary" in this context implies the existence of a pressing social need, and that interference with freedom of expression should be no more than is proportionate to the legitimate aim pursued. I have no reason to believe that English law, as applied in the courts, leads to any different conclusion.

In Derbyshire County Council v. Times Newspapers Ltd [1992] UKHL 6; [1993] AC 534 at 551 Lord Keith of Kinkel agreed with Lord Goff saying that:

...in the field of freedom of speech there was no difference in principle between English law on the subject and article 10 of the Convention.

In Australia an implied constitutional freedom of political communication and discussion has been recognised. In Theophanous v. The Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 the High Court considered the content of the implied freedom. In their joint judgment, Mason CJ and Toohey and Gaudron JJ said at 124-5:

For present purposes, it is sufficient to say that "political discussion" includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate, e.g., trade union leaders, Aboriginal political leaders, political and economic commentators. Indeed, in our view, the concept is not exhausted by political publications and addresses which are calculated to influence choices. Barendt states that:

"'political speech' refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about."

It was this idea which Mason C.J. endeavoured to capture when, in Australian Capital Television, he referred to "public affairs" as a subject protected by the freedom.

A similar view has been advocated by Alexander Meiklejohn. He says freedom of speech:

"is assured only to speech which bears, directly or indirectly, upon issues with which voters have to deal - only, therefore, to the consideration of matters of public interest. Private speech, or private interest in speech, on the other hand, has no claim whatsoever to the protection of the First Amendment."

Thus, he distinguishes between commercial speech - "a merchant advertising his wares" - and speech on matters of public concern. The problem is, of course, that what is ordinarily private speech may develop into speech on a matter of public concern with a change in content, emphasis or context. That conclusion is not inconsistent with the proposition that speech which is simply aimed at selling goods and services and enhancing profit-making activities will ordinarily fall outside the area of constitutional protection. Commercial speech without political content "says nothing about how people are governed or how they should govern themselves".

However, the implied freedom, as with other constitutional freedoms, is not absolute. As was said by Deane J in Theophanous at 178-9:

Such a curtailment of the freedom of political communication and discussion is consistent with the implication only to the extent to which it can, according to the standards of our society, be justified in the public interest either for the reason that it is conducive to the overall ability of the effective means of political communication and discussion in a democratic society or it does not go beyond what is necessary either for the preservation of an ordered society or for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity in such a society. In my judgment in Cunliffe v. The Commonwealth, I pointed out that the word "necessary" in that formulation was used in the sense explained by Lord Goff of Chieveley in Attorney-General v. Guardian Newspapers Ltd [No. 2]: "'necessary' in this context implies the existence of a pressing social need, and that interference with freedom of expression should be no more than is proportionate to the legitimate aim pursued."

The position in Australia in respect of freedom of speech and expression generally was summarised by Brennan J in Nationwide News Pty Ltd v. Wills [1992] HCA 46; (1992) 177 CLR 1 at 48. His Honour observed that the freedom of speech and expression we enjoy in Australia is recognised by the common law and is inherent in the idea of representative democracy. Nevertheless, his Honour added at 48-49:

However, at common law there is no right to free discussion of government. Freedoms or immunities recognized by the common law are, generally speaking, liable to impairment or abrogation by legislation. Hence, to quote A.V. Dicey, it is "essentially false" to say that "the right to the free expression of opinion, and especially that form of it which is known as the 'liberty of the press', are fundamental doctrines of the law of England ... and ... that our courts recognize the right of every man to say and write what he pleases, especially on social, political, or religious topics without fear of legal penalties". But the fragility of the common law "right" to the free expression of opinion is in part due to the absence of a constitutional entrenchment of the form of government which the public discussion of political and economic matters is required to sustain. In legal theory, it may be possible - it is not for this Court to say - for the Parliament at Westminster to abolish freedom of speech in the United Kingdom and thereby destroy the representative democracy which has been so entrenched in practice. But where a representative democracy is constitutionally entrenched, it carries with it those legal incidents which are essential to the effective maintenance of that form of government. Once it is recognized that a representative democracy is constitutionally prescribed, the freedom of discussion which is essential to sustain it is as firmly entrenched in the Constitution as the system of government which the Constitution expressly ordains.

In Theophanous at 129 Mason CJ and Toohey and Gaudron JJ said:

It is, of course, beyond question that, but for the implied freedom of communication, legislatures could severely restrict or inhibit freedom of communication.

It follows from the foregoing discussion that even a constitutionally protected freedom of speech and expression has never been absolute; it is always subject to restriction to give effect to legitimate countervailing interests as set out in the Canadian Charter, the ICCPR or as discussed in the decisions on the First Amendment and the Australian Constitution.

In Australia, subject only to any constitutional protection of the freedom of political communication and discussion, it is open to the legislature to enact legislation "restricting or inhibiting" the freedom.

Is the classification of the article in breach of the implied constitutional freedom?

The applicants did not challenge the constitutional validity of the Act on the ground that it infringed the implied constitutional freedom of political communication and discussion. However, the main contention on behalf of the applicants was that the article, being primarily "political" in character and appearing in a political context, was protected by the implied constitutional freedom. Accordingly, so it was said, the Board erred in law in construing the Code and the article in a manner which denied that protection. The argument raises an issue of some importance. Under the Constitution, the Commonwealth cannot enact legislation which infringes the implied constitutional freedom. It must follow that a decision made under an enactment also cannot infringe the freedom. In such cases either the decision might be in excess of the power conferred under the enactment or, subject to interpreting the enactment as being within constitutional power, the enactment might be in excess of the power conferred under the Constitution.

There are a number of answers to the contention.

1. As discussed earlier, the implied freedom is not absolute and gives way to laws giving effect to legitimate countervailing interests. In general, laws which prohibit or restrict conduct which is likely to be harmful to the rights of life, liberty and property of others constitute legitimate protection of countervailing interests and are beyond the scope of the implied constitutional freedom. For the reasons outlined earlier, it is open to Australian legislatures to conclude that incitement to, promotion of or instruction in the commission of crime constitute such conduct.

2. It can be accepted that the article must be construed in the political context in which it appears in the Rabelais publication. The introductory section, which advocates shoplifting as a means of redistributing wealth from the rich to the poor also contains political speech. However, in the same way as changes in "content, emphasis or context" may cause non-political private speech to develop into political speech on a matter of public concern (see Theophanous at 124), so too may such changes cause an article introduced by political speech to develop into non-political speech. That is precisely what has occurred in respect of the "The Art of Shoplifting". The introduction to the article proffers a political justification or rationale for shoplifting but that does not result in the detailed information and guide to shoplifting, which is systematically furnished in the balance of the article, also being characterised as political.

Two examples suffice. An instruction manual on the use of explosives to effectively destroy a high rise building does not become political speech or expression merely because the justification or rationale proffered in the manual for the destruction is political. Likewise, an instruction manual on how to engage in drug trafficking in schools does not become political speech merely because it is distributed by an extremist political group seeking to undermine the established order in society.

It is beyond question that the RC classification confirmed by the Board was based on the portion of the article which furnished the "step by step guide to shoplifting" and not on the rationale or justification for doing so. The RC classification did not apply to the content of the Rabelais publication without the article, or to the article without the guide to shoplifting. Accordingly, it is simply erroneous to treat the classification as infringing the implied constitutional freedom of political communication and discussion.

3. In Australia non-political speech may be impaired or restricted by the legislature or by administrative decisions lawfully made under legislative enactments. Accordingly, in so far as the Act and the complementary legislation enacted pursuant to the co-operative agreement make provision for administrative decisions which restrict freedom of non-political speech, that impairment or restriction is valid and effective under Australian law. For the reasons set out earlier the administrative decision made by the Board under the Act does not impair or restrict political speech. Accordingly, the Board did not err in law in not acceding to the arguments of the applicants based on Theophanous.

Did the Board err in its construction of the Code?

In considering the proper construction of the Code three principles need to be borne in mind. The first is that the Code should be given a sensible meaning which gives effect to its evident purpose: see MacAlister v. The Queen [1990] HCA 15; (1990) 169 CLR 324 at 330.

The second principle is that the presumption against statutory interference with fundamental rights or principles, which include the freedom of speech and expression recognised by the common law, is rarely treated as displaced by general words. The rationale of the presumption against the modification or abolition of fundamental rights or principles is to be found in the assumption that :

"It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.": see Potter v. Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304, Bropho v. State of Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 17-18 and Coco v. R [1994] HCA 15; (1994) 179 CLR 427 at 437-8.

In Coco at 436 Mason CJ, Brennan, Gaudron and McHugh JJ referred, with approval, to the statement by Lord Browne-Wilkinson in Wheeler v. Leicester City Council [1985] UKHL 6; [1985] 1 AC 1054 at 1065 that:

Basic constitutional rights in this country such as freedom of the person and freedom of speech are based not on any express provision conferring such a right but on freedom of an individual to do what he will save to the extent that he is prevented from so doing by the law. Thus, freedom of the person depends on the fact that no one has the right lawfully to arrest the individual save in defined circumstances. The right to freedom of speech depends on the fact that no one has the right to stop the individual expressing his own views, save to the extent that those views are libellous or seditious. These fundamental freedoms therefore are not positive rights but an immunity from interference by others. Accordingly I do not consider that general words in an act of Parliament can be taken as authorising interference with these basic immunities which are the foundation of our freedom. Parliament (being sovereign) can legislate so as to do so; but it cannot be taken to have conferred such a right on others save by express words.

The third principle is that, as the Act was passed as an integral part of a uniform national scheme for censorship, the construction of the Act should have proper regard to its role and function as part of that scheme. In particular, due regard should be had:

* "as far as possible" to the first principle stated in the Code that -

"adults should be able to read, hear and see what they want";

and

* to the consequences of an RC classification and the offences created under the complementary legislation for items falling within that classification.

Accordingly, an RC classification should not be lightly arrived at.

The National Classification Code provides for an RC classification for publications (which are defined in s.5, "any written or pictorial matter") that, inter alia,:

"promote, incite or instruct in matters of crime or violence."(Emphasis added)

I see no reason to give "instruct" a meaning other than its ordinary and usual meaning. The relevant meaning in The Macquarie Dictionary is:

2. to furnish with knowledge, esp. by a systematic method; teach; train; educate.

Having regard to the principles to which I have referred, an instruction, to fall within the Code, must do more than state the obvious or inform or convey knowledge of matters in such a general way that, in a real and practical sense, no instruction has really been given. Likewise, it is unlikely that an article that is truly satirical would, in a real and practical sense, be characterised as instructional. It is difficult to conceive of such an article being instructional in the sense required by the Code.

The word "matters" can have a number of different meanings, some of which are very wide. However, in its context in the Code, the word is intended to relate to or connote the commission of crime. In my view the purpose of the relevant RC classification is to prevent conduct which promotes, incites or instructs in the commission of crime. If no such limitation is imposed, the provision of all kinds of information in relation to "matters" of crime, including for example the prevention of crime, might arguably be prohibited.

The approach I have taken to the meaning of the words "instruct" and "matters" is also consistent with the general principle stated in the Code that:

"adults should be able to read, hear and see what they want".

Finally, I turn to consider the word "crime". The well known description or definition of what amounts to a crime was stated by Lord Atkin in Proprietary Articles Trade Association v. Attorney-General for Canada [1931] AC 310 at 324:

Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the State. The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences? Morality and criminality are far from coextensive; nor is the sphere of criminality necessarily part of a more extensive field covered by morality - unless the moral code necessarily disapproves all acts prohibited by the State, in which case the argument moves in a circle. It appears to their Lordships to be of little value to seek to confine crimes to a category of acts which by their very nature belong to the domain of 'criminal jurisprudence'; for the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the State to be crimes, and the only common nature they will be found to possess is that they are prohibited by the State and that those who commit them are punished.

However, not all conduct which renders an individual liable to a penalty is recognised by the law as being criminal: see Gapes v. Commercial Bank of Australia Ltd [1979] FCA 62; (1979) 27 ALR 87 at 112 per Deane J. As was said by Brett MR in Attorney-General v. Bradlaugh (1885) 14 QBD 667 at 687:

The recovery of a penalty, if that is the only consequence, does not make the prohibited act a crime. If it did, it seems to me that that distinction which has been well known and established in law for many years between a penal statute and a criminal enactment, would fall to the ground, for every penal statute would involve a crime, and would be a criminal enactment.

Accordingly, as was demonstrated in Gapes, regulatory and many other offences that attract a penalty may not fall within the definition of a crime. Put another way it must be established that the conduct in question falls within the category of conduct stipulated by the law as constituting a crime.

As the RC classification is to apply as part of a uniform co-operative scheme throughout Australia it follows that the conduct in question must be generally recognised as a crime under the law of each State and Territory. The same definitions apply throughout the Commonwealth under the Code and the complementary legislation. Accordingly, conduct which is recognised as a crime in some, but not other, parts of Australia is unlikely to fall within the definition of a crime for the purposes of the Code. To come to any other conclusion would have the anomalous and unintended result that distribution of the same publication might be unlawful under the scheme in parts of Australia where the conduct in question is not a crime. That result is inconsistent with the concept and purpose of the uniform co-operative scheme.

The applicants submitted that the phrase "matters of crime or violence" was limited to violent crimes. Reliance was placed on the fact that the 1983 Ordinance originally referred to "terrorism". It was then said that following the 1989 change to the Ordinance to "crimes or violence", those words were somehow to be limited to violent crimes. I do not accept the submission. If the legislature intended to limit the subject matter to crimes involving violence it would have been very simple for it to have said so. Further the subject matter is clearly intended to refer separately to matters of "crime" and matters of "violence". There is no reason to treat either subject as necessarily limiting the other. That is particularly so given the separate interest that the legislature might have in relation to material concerned with criminal conduct and that which is concerned with violent conduct.

A more difficult question, which need not be determined in the present case, relates to the scope of matters of "violence". In general, violent conduct will often involve criminal conduct. However, that is not always so. Many might regard instruction manuals for boxing, police "pressure point" techniques, military training and possibly fox hunting and animal laboratory testing, as instructing in "matters of violence". These examples serve to point out the difficulties of writing any anti-speech code. At all events this problem raises the question of the ambit of what is added to the subject matter by the reference to "violence" rather than what is to be subtracted from the subject matter by the reference to "crime".

It was also submitted that "crime" as used in the Code is limited to the more serious crimes. It was contended that "crime" was clearly not intended to extend to shoplifting which was said to be a "less serious" crime. The submission is without substance. The Code refers to "crime or violence". There is simply no basis for construing "crime" as being limited to less serious crimes. In any event, what may be a less or more serious crime may often be a matter in the mind of the beholder. One can readily recognise the different views that many would hold on that topic. Material before the Board suggested that the cost of "shopstealing" was of the order of $1b per year. There is likely to be considerable reluctance on the part of retailers to consider shoplifting to be a "less serious" crime.

Further, there can be little doubt that, broadly speaking, crime in its narrowest sense is generally accepted as involving invasion of a person's right to life, liberty or property. Shoplifting is a clear invasion of another person's right to property.

In my view the Board did not err in law in its construction of the Code or in its application of the Code to the article. In its decision the Board concluded that:

* shoplifting, i.e. theft, and fraud are crimes throughout Australia;

* the article was "instructional" in relation to the commission of a crime, i.e. shoplifting;

* the article contained "practical instruction in techniques of shoplifting" with "considerable detail provided in regard to methods, and hazards likely to be encountered";

* the article "lacked indicators of satire, or tongue-in-cheek treatment";

* although the content of the Rabelais publication is "acknowledged to be political in flavour" the major part of the article aims to be a "step by step guide to shoplifting";

* accordingly, the article is a publication that instructs in matters of crime and should therefore be refused classification.

The review sought under the ADJR Act is not a review by the Court on the merits. In general an error of law or a failure to exercise the jurisdiction or power conferred on the Board in accordance with law must be demonstrated. Each of the conclusions arrived at by the Board was reasonably open to it on the material and there is no basis for concluding that it erred in law in its construction of the relevant provisions of the Code or in its application of the Code to the Rabelais publication.

The Board approached its task of characterising the article from an objective point of view. As a matter of law it was open to the Board to conclude that the article, so characterised, was truly instructional rather than satirical.

It can be accepted that in construing the Code the Board was to have regard to the applicants' right to freedom of political communication and discussion, the common law's recognition of freedom of speech and expression and Article 19 of the ICCPR: see Polites v. The Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 68, 78, 80-1, the two cases of Irving v. Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 228; (1993) 115 ALR 125 at 139-140 and (1996) 139 ALR 84 at 97, John Fairfax Publications Pty Ltd v. Doe (1994) 37 NSWLR 81 at 97-8 and Minister of State for Immigration and Ethnic Affairs v. Teoh [1995] HCA 20; (1995) 183 CLR 273, 287-8.

I am satisfied that the Board had regard to the substance of the freedoms in both construing the Code and characterising the publication for the purposes of the Code. It did not err in law when it stated:

It agrees that these are important freedoms, which are recognised in the Act. However, the Act proscribes some content, in the public interest, viz that laid out in the National Classification Code: Publications 1(a)-(c).

Other Matters

A. The decision of the Chief Censor

It was submitted that the Board placed undue weight on and had undue regard to the decision of the Chief Censor and therefore did not form its "own view on the merits of the case": see Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 36 ALR 598 at 602. In my view the Board's reasons do not afford any basis for the submission. I am satisfied that the Board formed and expressed its own view on the merits of the case.

B. Relevant and Irrelevant Considerations

The relevant principles were stated by Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-41. In summary:

* a decision-maker only fails to take into account relevant considerations when there is a failure to take into account considerations he or she is bound, upon the proper construction of the statute, to take into account;

* an irrelevant consideration is usually ascertained by determining whether, having regard to the scope, subject matter and purpose of the statute, the consideration is irrelevant to the decision to be made;

* a decision will not be set aside if the failure to take into account a relevant consideration or the taking into account of an irrelevant consideration could not have materially affected the decision;

* in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker, and not the court, to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.

Recently in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 the High Court re-stated the caution with which a reviewing court should approach the reasons given by an administrative decision-maker. In reiterating that courts should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons, Brennan CJ, Toohey, McHugh and Gummow JJ said at 272:

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

With these principles in mind I turn to consider the submissions on behalf of the applicants on these issues. The irrelevant considerations said to have been taken into account were:

(a) the views of the editors of Revolution Catalyst as to the effect of the article;

(b) the "intent" of the article; and

(c) the fact that only approximately 12% of the article was political.

In my view no error has been demonstrated by the Board's reference to the matters in (a) and (c) in its decision. In the course of making its findings on the critical issues reference was made by the Board to the views expressed in Revolution Catalyst and to the percentage of political content in the article. However the references are merely corroborative of the Board's findings on the critical issues and did not affect the decision made by the Board.

The references to "intent" are of greater concern. As I have already said, the proper characterisation of the article for the purposes of the Code is to be determined objectively. Accordingly, reference to the "intent" of the author of the article or the editors of the publication as a "critical issue" would be an error of law if it led to the characterisation being determined subjectively. However, that was not the situation in the present case. No evidence was given as to intent. The reference to "intent" of the article was really a reference to intent determined objectively. In that context, it was another way of the Board saying that the article instructed as to a matter of crime. In any event it is clear that the reference to intent made no difference to the decision as the Board found that:

.... the article intended to and, in fact, does provide practical instruction in techniques of shoplifting. (Emphasis added)

The relevant considerations said not to have been taken into account were:

(a) the constitutional right to free speech in respect of political communications and discussion;

(b) the right to free expression in the ICCPR;

(c) the consequences of an RC classification;

(d) the political context in which the article appeared;

(e) the opinions of witnesses on the issue of classification;

(f) other similar publications had not been refused classification.

Putting aside the issue of whether the matters relied upon are relevant considerations to which the decision-maker is bound, rather than entitled, to have regard, in my view the real objection of the applicants in respect of the above matters is the failure of the Board to give appropriate weight to these matters rather than a failure to have regard to them at all. In the present case, a failure to give due weight in respect of the above matters is not an error of law. In any event, I am not satisfied that the Board did not have regard to the substance of each of these matters in arriving at its decision as to the proper construction of the Code and the classification of the article. The reasons of the Board demonstrate that it was aware of the substance of each of the matters relied upon and there is no basis for concluding that it had no regard to the matters merely because they were not referred to in the manner contended for by the applicants: see Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 570, 588, 603, 629, 634.

C. Unreasonableness

I am not satisfied that the decision of the Board was unreasonable or was not open to the Board on the material before it.

Some other matters were raised on behalf of the applicants in the written submissions but were not pressed in oral argument. I am not satisfied that there is any substance in those matters.

Conclusion

For these reasons it has not been established that the Board erred in law in arriving at its decision or that the applicants have made out any of the other grounds relied upon for review of the Board's decision under the ADJR Act.

It is obviously unfortunate that, by reason of the offending article, a student publication has been classified as RC under the Act. However, it is wrong to regard that classification as an abrogation of the freedom of political communication or discussion. It is not. It occurred because, in the view of the Board, the article strayed from political discussion and developed into detailed and systematic instruction on the commission of the crime of theft. Even strong advocates of free speech rights would concede that there is no public interest in instructing how, most effectively, to steal the property of others: see Barendt, Freedom of Speech (1985) Chapter VII.

Undoubtedly, one expects a university to be a place where freedom of speech and of expression of all kinds will flourish. However, that expectation does not justify one law for the freedom for those in the universities and another law for those outside the universities.

It may well be that the publication of the article occurred as a result of what might now be seen to have been a serious error of judgment, rather than as part of a deliberate attempt to incite others to commit the crime of theft.

Before departing from the present case it is important to observe the difficulties inherent in the administration of any anti-speech code. As was said by Harry Kalven Jnr.:

It is technically impossible to write an anti-speech code that cannot be twisted against speech nobody means to bar. It has been tried and tried and tried".

The Code is no exception. The construction that has been given to the words "instruct in matters of crime" should ensure that, on that subject, the Code is not "twisted against speech nobody means to bar". However, it is important that a similar approach to construction is taken to other aspects of the Code. In particular, it is appropriate to emphasise that it is the policy of the Code that classifications under it should not be lightly made.

Accordingly, the application for review is dismissed. Costs will be considered after hearing submissions from the parties.

I certify that this and the preceding 35 pages are a true copy of the Reasons for Judgment of the Honourable Justice Merkel.

Associate:

Date:

Heard: 21 May 1997

Place: Melbourne

Judgment: 6 June 1997

Appearances: Mr S Littlemore QC instructed by Western Suburbs Legal Service Incorporated for the applicants.

Mr P Hanks instructed by the Australian Government Solicitor for the respondents.