Brown v Classification Review Board
[1998] FCA 319
•24 MARCH 1998
FEDERAL COURT OF AUSTRALIA
MEDIA AND COMMUNICATIONS - censorship - classification of publications - publications which promote, incite or instruct in matters of crime or violence - freedom of expression - at common law - under international law - by constitutional implication - construction of statutes - construction of National Classification Code - meaning of instructs in matters of crime - student newspaper article, The Art of Shoplifting.
ADMINISTRATIVE LAW - judicial review, construction of statutes - relevant and irrelevant considerations - review of Classification Board decision - limitation of judicial review function - no review as to merits.
CONSTITUTIONAL LAW - implied constitutional freedom of political communication and discussion - whether censorship law reasonable - contrast with guarantees of freedom of speech under other national constitutions - nature of political speech - whether censorship law reasonable, appropriate and adapted to legitimate end - whether political speech involved.
INTERNATIONAL LAW - human rights - freedom of expression - qualifications on freedom of expression - relationship between international obligations and domestic law.
Classifications of Publications Ordinance 1983 (ACT)
Classification of Films and Publications Act 1990 (Vic)
Classification (Publications, Films and Computer Games) Act 1995 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Racial Discrimination Act 1995 (Cth)
Theophanous v The Herald and Weekly Times Limited (1994) 182 CLR 104 (cited)
Attorney General v Guardian Newspapers Ltd [1990] AC 109 (discussed)
Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 (distinguished)
Derbyshire County Council v Times Newspapers [1993] AC 534 (discussed)
Ballina Shire Council v Ringland (1994) 33 NSWLR 680 (cited)
Potter v Minahan (1908) 7 CLR 277 (cited)
Bropho v Western Australia (1990) 171 CLR 1 (discussed)
Coco v R (1994) 179 CLR 427 (considered)
Davis v The Commonwealth (1988) 166 CLR 79 (cited)
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 (discussed)
Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309 (cited)
Zachariassen v The Commonwealth (1917) 24 CLR 166 (cited)
Polites v The Commonwealth (1995) 70 CLR 60 (cited)
Minister for Foreign Affairs v Magno (1992) 37 FCR 298 (cited)
Garland v British Rail Engineering [1983] 2 AC 751 (cited)
R v Secretary of State for the Home Department Ex parte Brind [1911] 1 AC 696 (cited)
Dietrich v R (1992) 177 CLR 292 (cited)
Mabo v Queensland (No 2) (1992) 175 CLR 1 (cited)
Australian Capital Television Pty Ltdv The Commonwealth (1992) 177 CLR 106 (discussed)
Cunliffe v The Commonwealth (1997) 146 ALR 126 (discussed)
Kruger v The Commonwealth (1992) 146 ALR 126 (cited)
Commissioner of Taxation v Whitehouse (1961) 104 CLR 25 (cited)
R v Morton (1986) 42 SASR 571 (cited)
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 (cited)
Levy v Victoria (1997) 146 ALR 248 (discussed)
Langer v Australian Electoral Commission (1996) 186 CLR 302 (cited)
Stephens v West Australian Newspapers (1994) 182 CLR 211 (cited)
Muldowney v South Australia (1996) 186 CLR 352 (cited)
Brandenburg v Otrio 395 US 444 (1969) (distinguished)
MICHAEL BROWN, MELITA BERDNT, BEN ROSS and VALENTIA SRPCANSKA v THE MEMBERS OF THE CLASSIFICATION REVIEW BOARD OF THE OFFICE OF FILM & LITERATURE CLASSIFICATION
VG 314 of 1997
FRENCH, HEEREY AND SUNDBERG JJ
MELBOURNE
24 MARCH 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
VG 314 of 1997
BETWEEN:
MICHAEL BROWN, MELITA BERDNT, BEN ROSS
AND VALENTIA SRPCANSKAAPPELLANTS
AND:
THE MEMBERS OF THE CLASSIFICATION REVIEW
BOARD OF THE OFFICE OF FILM & LITERATURE
CLASSIFICATIONRESPONDENT
JUDGES:
FRENCH, HEEREY AND SUNDBERG JJ
DATE OF ORDER:
24 MARCH 1998
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
The appeal is dismissed.
The appellants to pay the respondent’s costs of the appeal.
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
VG 314 of 1997
BETWEEN:
MICHAEL BROWN, MELITA BERDNT,
BEN ROSS AND VALENTINA SRPCANSKAAPPELLANTS
AND:
THE MEMBERS OF THE CLASSIFICATION REVIEW
BOARD OF THE OFFICE OF FILM & LITERATURE
CLASSIFICATIONRESPONDENT
JUDGES:
FRENCH, HEEREY AND SUNDBERG JJ
DATE:
24 MARCH 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
FRENCH J:
INTRODUCTION
The July 1995 edition of “Rabelais”, the student newspaper of the La Trobe University Student Representative Council, contained an article called “The Art of Shoplifting”. Following complaints from retailers the article was found by the Commonwealth Office of Film and Literature to “instruct in matters of crime”. It was refused classification. This had the effect of prohibiting its distribution. The decision was confirmed by the Classification Review Board and an application for judicial review dismissed by Merkel J.
The editors of the paper appealed to this Court. The appeal raises questions about the proper construction of the words “instruct in matters of crime” in the National Classification Code made under the Classification (Publications, Films and Computer Games) Act 1995 (Cth). It also raises questions about the extent and limits of freedom of expression and the ways in which that value is applied in a democratic society.
FACTUAL BACKGROUND
Rabelais is a publication of the La Trobe University Student Representative Council. In July 1995, its editors were Michael Brown, Melita Berdnt, Ben Ross and Valentina Srpcanska. The edition for that month contained an article entitled “The Art of Shoplifting” which is the cause of these proceedings. The article contained a brief introductory critique on the deficiencies of capitalism followed by what was described in its text as “a step by step guide to shoplifting”.
Following the publication of the July edition, the Retailer Traders Association of Victoria applied to the Chief Censor in the Commonwealth Office of Film and Literature Classification for a decision that the publication be refused classification. The application was made under a Co-operative legislative scheme then in operation in Australia. Under the scheme publications were classified or refused classification pursuant to the Classifications of Publications Ordinance 1983 (ACT). Their classification or refusal of classification was given effect pursuant to complementary State legislation which, in Victoria, was the Classification of Films and Publications Act 1990 (Vic).
The Chief Censor decided on 18 September 1995 to refuse classification for Rabelais. He applied s 19(4) of the ACT Ordinance which required a Classification Officer to refuse classification to a publication:
“That promotes, incites or instructs in matters of crime or violence.”
At the same time classification was refused to a publication of the Royal Melbourne Institute of Technology Students Union called “Revolution Catalyst”. The latter publication contained the same article on shoplifting as appeared in Rabelais.
The Chief Censor concluded that the article which appeared in each publication instructed in methods of shoplifting and associated fraud. Both were refused classification under the co-operative scheme which operated in the ACT, the Northern Territory, South Australia, Queensland and Victoria. They were classified “Restricted - Category 1” for New South Wales.
The editors of Rabelais applied out of time on 1 May 1996 for a review of the Chief Censor’s decision. The application was made to the Classification Review Board under the Revised Co-operative Scheme providing for uniform censorship throughout Australia. The new governing legislation was the Classification (Publications, Films and Computer Games) Act 1995 (Cth).
In July 1996 the Board confirmed the decision of the Chief Censor to refuse to classify the publication. The editors applied for an order of review of the Board’s decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The application was dismissed by Merkel J. The editors now appeal to this Court.
THE PUBLICATION
The July edition of Rabelais comprised some seventy four pages including the front and rear covers. Its content was largely critical political commentary on a range of issues. These included the application of the death penalty in the United States and particularly the pending execution of a former black activist and member of the Blank Panther Party, Mumia Abu-Jamal. Industrial relations activities of CRA, Victorian Government attitudes to homosexuality, communist government in Nepal, access to university education, marijuana, undercover police at La Trobe University, government in South Africa, exploitation of outworkers, private prison systems and workers’ conditions in Indonesia were also among the topics covered in the July edition.
The article which is the subject of these proceedings is annexed to and forms part of the reasons for judgment of Heerey J. It is therefore necessary only to refer to its salient features here. An introductory heading above the text of the article speaks of shoplifting as a topic that is “practically relevant to many” and that it should not become ”an exclusive craft confined to a small shoplifting elite”. It is described as an “art that deserves the widest possible dissemination”. The heading then concludes:
“For your convenience we have printed below a step by step guide to shoplifting. Good luck.”
The body of the article begins with a critique of modern capitalism. It sets some limits on the targets of shoplifting thus:
“NEVER STEAL FROM SOMEBODY WHO COULD CONCEIVABLY BE A COMRADE.”
It also warns about stealing from small “corner store” shops on the basis that “you could be ripping off someone in a situation not dissimilar to your own”. As a matter of general principle it is proposed that the injunction against stealing from capitalism “is itself a capitalist ideology and should be spurned as such”. There then follows what is described as “a list of effective methods and observations that may prove useful”. This list of methods and observations is subdivided 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 end.
Under each of these headings there is a number of pieces of advice of a practical nature. For example, Item 3 under the heading “preparing oneself for the big haul” says:
“It is always a good idea to carry a bag although you should never stash anything in it - if security/sales staff are suss on you the first place that they’ll check is your bag and it may just get you off the hook if they can’t find anything suspicious inside of it.”
Under the heading “blind-spots and other lifting techniques” a blind spot is defined as a section of the store where the shopper is barely visible and can thus feel free to both dump and collect material without fear of being seen. The text goes on:
“Display units can make perfect blind-spots - they ensure security is confident they have their eye on you, when in fact they can only see your top half - at the same time they enable you to keep your eye on security. For these reasons, the best blind-spots are generally below the chest - around waist high. Blindspots are good for loading into the lip of your jeans or into a jacket.”
Theft of goods followed by their return and exchange for other goods is also suggested. Techniques related to exchange are canvassed:
“1.If you plan to steal something and then make an exchange always take stuff that people are (sic) to take back like sheets, or other obscure household items. If questioned you can say to them “as if I’m gonna keep the receipt. I didn’t plan to bring it back.” Books and other small but expensive items such as computer software are also great exchangeables.”
Advice is also given on how to leave the store safely and a warning “NEVER GET TOO CONFIDENT or you will start to make silly mistakes”.
THE DECISION OF THE CLASSIFICATION REVIEW BOARD
At its meeting held on 12 July 1996 the Classification Review Board decided to confirm the decision of the Chief Censor to refuse to classify the July edition of Rabelais. After adverting to the relevant legislation and the applicable Code, the Board considered what it described as “the content, theme and tone of the publication”. It found the tone of the article to be instructional and hortatory. While the writing was not without humour it lacked indicators that it was intended to be satirical. Its tone was considered to border on malicious. It lacked literary or artistic merit. A majority of the Board concluded that the publication instructed in matters of crime and should be refused classification. A minority of the Board was of the opinion that “while the article was instructional in shoplifting the context of the publication with the nature of the crime were such that the publication should not be refused classification”.
In responding to arguments put to it on behalf of the editors, the Board declined to enter into a consideration of the effect of the implied constitutional freedom in relation to political speech. It confined its decision to what it called the “parameters of the Act”. The Board rejected argument that the article was ironic in tone.
Also rejected was a submission that the Code applied only to publications instructing in violent crimes. The Board posed a question whether there were “degrees of crime intended to be caught by the statute”.
The Board accepted the importance of freedom of political speech, the right to challenge accepted notions and the right to express politically uncongenial views. But this was subject to the statutory proscriptions set out in the National Classification Code.
At par 6.5 of its reasons, in a passage expressly criticised in argument, the Board said:
“The Review Board took into account the expressions of concern about the cost of shop stealing ($1b per year) to large retailers, presented on behalf of the Retail Traders Association Assoc. of Victoria. The RTAV argued that the article had been reprinted a number of times by other university newspapers. Failure to refuse its classification would result in further reprinting. The view of the RTAV was that the article was instructional and detailed.”
THE DECISION AT FIRST INSTANCE
There were eighteen grounds of review in the application before Merkel J. After setting out the facts, legislation and submissions, his Honour turned to the free speech question referring to the wide spread acceptance of limits upon even constitutionally protected freedom of speech. He observed that the appellants had been unable to 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 implied constitutional freedom of political communication and discussion recognised in recent High Court jurisprudence was itself not absolute. His Honour said:
“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.”
The administrative decision made by the Board in this case, in his Honour’s opinion, did not impair or restrict political speech and, accordingly, the Board did not err in law in not acceding to the arguments of the applicants based on the case of Theophanous v The Herald and Weekly Times Limited (1994) 182 CLR 104.
His Honour held that the Board did not err in its construction of the Code or in its application of the Code to the particular article. He adopted as the meaning of the word “instruct” the ordinary meaning given in the Macquarie Dictionary:
“to furnish with knowledge, esp. by a systematic method; teach; train educate.”
His Honour added:
“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.”
In his Honour’s opinion the word “matters” referred to the commission of crime. This reflected what he saw as the purpose of the refusal of classification namely to “prevent conduct which promotes, incites or instructs in the commission of crime”. His Honour pointed out that if no such limitation were 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 term “crime” referred to conduct falling within that category stipulated by law as constituting crimes. In Australia stealing and therefore shoplifting, is regarded as a crime.
His Honour observed that the review available under the ADJR Act is not on the merits, each of the factual conclusions arrived at by the Board was reasonably open to it on the material and there was no basis for concluding that it had erred in law. In particular, it was open to the Board to conclude that the article was truly instructional rather than satirical.
His Honour rejected claims that the Board placed undue weight on the decision of the Chief Censor or that it failed to take into account relevant matters or took into account irrelevant matters.
Relevant matters said not to have been taken into account were the constitutional implication of freedom of expression in respect of political communications and discussion, the right to free expression in the International Covenant on Civil and Political Rights, the consequences of refusal of classification, the political context of the article, the opinions of witnesses on the issue of classification and the fact that other similar publications had not been refused classification. His Honour found the reasons of the Board demonstrated it to have been aware of the substance of each of the matters relied on and that there was no basis for concluding that it had no regard to them merely because they were not referred to in the manner contended for by the applicants.
He also rejected an argument that the decision of the Board was unreasonable in the Wednesbury sense or not open to the Board on the material before it.
STATUTORY SCHEME
The original decision of the Chief Censor on 18 September 1995 was made under the Classification of Publications Ordinance 1983 (ACT). Section 19 provided for the classification of publications as unrestricted, Category 1 restricted or Category 2 restricted. Publications could also be refused classification on grounds set out in ss 19(3) and 19(4):
“19(3) A classification officer shall refuse to classify a publication where he or she is satisfied that the publication described, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a manner that it offends against the standards of morality, decency and propriety generally accepted by reasonable adult persons to the extent that it should not be classified.
(4) A classification officer shall refuse to classify a publication -
(a)that depicts in the pictorial form a child (whether engaged in sexual activity or otherwise) who is, or who is apparently, under the age of 16 years in a manner that is likely to cause offence to a reasonable adult person; or
(b)that promotes, incites or instructs in matters of crime or violence.”
Under a co-operative legislative scheme for censorship then operating in Australia, classification under the ACT Ordinance was given effect under complementary State and Territory legislation including the Classification of Films and Publications Act 1990 (Vic). The latter statute, by ss 48 to 53 inclusive, prohibited the sale, possession, keeping on premises, exhibition, display, depositing in a public place and production of any “objectionable publication”. An objectionable publication was defined in s 3 as, inter alia that:
“(c) promotes, incites or instructs in matters of crime or violence.”
It was also defined as one that “has been, or would be, refused classification”. The word “classified” was defined to mean “classified under the ACT Ordinance”.
In 1995 the Classification (Publications, Films and Computer Games) Act 1995 (Cth) was passed. It received Royal assent on 15 March 1995 and its provisions, other than ss 1 and 2, came into effect on 1 January 1996. Sections 1 and 2 came into effect upon the giving of the royal assent. The Act initiated a new co-operative legislative scheme providing for uniform censorship rules throughout Australia. Complementary legislation in Victoria was called the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic).
The 1995 Act established a Classification Board (s 45) and a Classification Review Board (s 72). The classification of publications, films and computer games under the Act is done by the Board on application (s 10(1)). Section 9 provides:
“Publications, films and computer games are to be classified in accordance with the Code and the classification guidelines.”
The Code is the National Classification Code set out in the Schedule to the Act or that Code as amended in accordance with s 6 of the Act (s 5). Guidelines are created under s 12 which authorises the Minister, with the agreement of each participating Minister, to determine guidelines to assist the Board in applying the criteria in the Code. Nothing turns on the guidelines for present purposes.
Section 11 specifies that matters to be taken into account in making a decision on classification 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.”
The types of classification available under the Act for publications are “Unrestricted”, Categories 1 and 2 “Restricted” and “Refused Classification”. The Act establishes a Classification Review Board. The Review Board is authorised to review decisions of the Classification Board (ss 42-44). Those decisions include decisions to classify or refuse to classify a publication, film or computer game (s 5). The Review Board is required to deal with an application for a review of a decision in the same way that the Board deals with an application for classification (s 44(1)).
The combined effect of ss 95 and 96 is that decisions made by the Chief Censor under the Classification of Publications Ordinance 1983 (ACT) have effect as if made by the Classification Board under the 1995 Act. They are therefore subject to review by the Review Board. In reviewing a classification decision, the Review Board is obliged to deal with it in the way that the Classification Board deals with an application for classification. Thus the provisions of the 1995 Act, the Code and the guidelines apply to the decision of the Review Board.
The National Classification Code is set out in the Schedule to the Act and in the relevant parts provides:
“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:
Description of publication Classification
1. Publications that:
(a)describe, depict, express RC
or otherwise deal with
matters of sex, drug misuse
or addiction, crime, cruelty,
violence or revolting or
abhorrent phenomena in
such a way that they offend
against the standards of
morality, decency and
propriety generally
accepted by reasonable
adults to the extent that
they should not be
classified; or
(b) describe or depict in a way that
is likely to cause offence to a
reasonable adult, a minor who
is, or who appears to be, under
16 (whether the minor is
engaged in sexual activity or not);
or
(c) promote, incite or instruct in
matters of crime or violence.”
The criteria for refusal of classification applicable to publications under the Code also apply to films. In the case of computer games there is an additional criterion that the game is “unsuitable for a minor to see or play”.
THE GROUNDS OF APPEAL
The grounds of appeal were lengthy and elaborate. They reduced to broad propositions that his Honour misconstrued the Code and particularly the term “instruct”, and erred in holding that it was open to the Board to characterise the article as falling within the Code. The construction of the Code and the characterisation of the article should have had regard to the implied constitutional freedom of political discussion, the common law recognition of freedom of speech and expression and the provisions of the International Covenant on Civil and Political Rights.
The proper construction of the Code, it was said, would require that before an article could be said to “instruct” in matters of crime it must be shown that the intent and likely effect of the publication is to cause the commission of the crime.
In addition, it was said that his Honour had erred in not holding that the Board had failed to take into account relevant considerations and had taken into account an irrelevant consideration. As to those matters I agree, for the reasons stated by Sundberg J, that no error on the part of the Board or his Honour was made out.
FREEDOM OF EXPRESSION
To assert freedom of expression under the law is to make a statement exhaustive of a wide range of possibilities including comprehensive censorship. A person may say and write what he pleases except in so far as he may not. This is a special case of the general proposition of the common law that “.... everybody is free to do anything, subject only to the provisions of the law”- Attorney General v Guardian Newspapers Ltd [1990] AC 109 at 283 (Lord Goff); Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 at 110. Beyond its trivialising logical formulation the assertion conveys a recognition of two important values and the tension between them. They are individual liberty and the rule of law in an organised society. The tension was made explicit by Blackstone who wrote that “the liberty of the press is indeed essential to the nature of a free state” but did not extend that liberty to “freedom from censure for criminal matter when published”. The rationale for that limitation, confined to post-publication sanctions, was stated thus:
“...to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty.” Blackstone Commentaries Vol 4, 151-152.
The value currently given by the common law to freedom of expression is high. Freedom of expression, particularly the freedom to criticise public bodies, is regarded by the Courts as one of the most important freedoms - Halsburys Laws of England 4th Edition Vol 8(2) para 107. This is no doubt attributable in part to the influence of the body of International Conventions which have accorded the freedom explicit recognition and protection and the designation “fundamental”. That designation may be traced from Articles 1 and 55 of the Charter of the United Nations to the Universal Declaration of Human Rights and the International Convention on Civil and Political Rights. It has legislative recognition in Commonwealth statutes - Human Rights and Equal Opportunity Commission Act 1986 (Cth), and the Racial Discrimination Act 1975 (Cth). Courts applying common law principles may be expected to proceed on an assumption of freedom of expression and look to the law to discover exceptions to it - Attorney General v Observer Ltd [1990] AC 109 at 203. So in England local authorities and other organs of government cannot sue for libel at common law. There is no public interest favouring such a right and it is contrary to the public interest “because to admit such action would place an undesirable fetter on freedom of speech”- Derbyshire County Council v Times Newspapers [1993] AC 534 at 549. The New South Wales Court of Appeal followed the House of Lords in this respect - Ballina Shire Council v Ringland (1994) 33 NSWLR 680.
The value accorded to freedom of expression will support a conservative approach to the construction of statutes which would impair or abrogate it. This is no more than a particular application of the general point made very early in the life of the High Court in Potter v Minahan (1908) 7 CLR 277 at 304, affirmed in Bropho v Western Australia (1990) 171 CLR 1 at 18 and recently restated in Coco v R (1994) 179 CLR 427 at 437:
“The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.”
Even before the sequence of cases dealing with the implied freedom of communication under the Commonwealth Constitution the “extraordinary intrusion” of a statute into freedom of expression provided a basis for concluding that it was “not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power” - Davis v The Commonwealth (1988) 166 CLR 79 at 100 and 117.
The common law does not provide the support for freedom of expression that would accord it the status of a “right”. In Australia “at common law there is no right to free discussion of government. Freedoms or immunities recognised by the common law are, generally speaking, liable to impairment or abrogation by legislation” - Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 48 (Brennan J). At best it can be said that, absent constitutional implication, the common law and conservative rules of construction provide a zone of partial protection. The overarching principle remains in effect that “where Liberty ends the Law begins and where the Law ends Liberty begins” - Kocourek, “The Alphabet of Legal Relations” in Readings in Jurisprudence ed Jerome Hall (Indianapolis 1938) 509 at 510.
There is a number of international instruments which contain explicit provision for freedom of expression. The Universal Declaration of Human Rights made on 10 December 1948 provides in Article 19:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
The Declaration accepts such limitations on the general rights declared by it as are determined by law “solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”. (Article 29) Moreover nothing in the Declaration is to be interpreted as implying “for any state, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein”. (Article 30) Relevantly, one of the other rights set out in the Declaration is the right “to own property alone as well as in association with others” coupled with the proposition that “no one shall be arbitrarily deprived of his property”. (Article 17)
In Article 19 of the International Covenant on Civil and Political Rights (ICCPR), ratified by Australia in 1980, both the extent and limits of freedom of expression are acknowledged:
“19(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
(3) The exercise of the rights provided for in paragraph (2) of this Article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such 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.”
Article 10 of the European Convention on Human Rights provides for “the right for freedom of expression” but subjects it to such legal qualifications as are necessary in a democratic society for, inter alia, the prevention of disorder or crime. It is nevertheless in terms similar to Article 19 and both are consistent with the common law - Ballina Shire Council v Ringland (supra) at 688; Derbyshire County Council v Times Newspapers (supra) at 550. A similar provision is found in Article 13 of the American Convention on Human Rights 1969.
International Conventions to which Australia is a party do not form part of its domestic law unless and until given effect by statute. They can however supply content to a rule of construction that statutes are to be interpreted and applied, as far as their language permits, so as not to be inconsistent with the comity of nations or with the established rules of international law - Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309 at 363. As Pearce and Geddes state in the 4th Edition of Statutory Interpretation in Australia at 137:
“The courts generally endeavour to give effect to this proposition while conceding that it is possible for the domestic law to differ from international law.”
See Zachariassen v The Commonwealth (1917) 24 CLR 166 at 181; Polites v The Commonwealth (1945) 70 CLR 60 at 68-9, 77 and 80-1, Minister for Foreign Affairs v Magno (1992) 37 FCR 298 at 304-305; Garland v British Rail Engineering [1983] 2 AC 751 at 771; R v Secretary of State for the Home Department Ex parte Brind [1991] 1 AC 696 at 747-748. International law, as expressed in such conventions, may also inform the development of the common law; Dietrich v R (1992) 177 CLR 292 at 306; Mabo v Queensland(No. 2) (1992) 175 CLR 1 at 42.
The freedom guaranteed by Article 10 of the European Convention and, by extension, Article 19 of the ICCPR applies not only to information or ideas that are favourably received or regarded as inoffensive but, subject to para 2, “those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broad mindedness without which there is no “democratic society”” - Handyside Case, European Court of Human Rights 1976 Ser.A. No. 24 1 EHRR 737.
But a democratic society is a society governed by the rule of law. Thus laws which impose accessorial liability for counselling or procuring the commission of criminal offences against property or person may penalise speech but are necessary restrictions of the kind contemplated by Article 19(3). They are, in the language of the European Convention, necessary for the prevention of crime. Such provisions are common in Australian criminal statutes. Prior restraint is more troublesome as Blackstone recognised. That is not to say that it will always be incompatible with freedom of expression in the qualified sense necessary in a society governed by the rule of law.
Qualifications apply also to the implied constitutional freedom of communication with respect to public affairs and political discussion. In Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106, Mason CJ said at 142:
“In most jurisdictions in which there is a guarantee of freedom of communication, speech or expression, it has been recognized that the freedom is but one element, though an essential element, in the constitution of “an ordered society” or a “society organized under and controlled by law”. Hence, the concept of freedom of communication is not an absolute. The guarantee does not postulate that the freedom must always and necessarily prevail over competing interests of the public.”
The freedom of communication in relation to public affairs and political discussion protected by constitutional implication does not confer private rights. It confines legislative power - Lange. It will not, however, invalidate a law enacted to satisfy some legitimate end if that law is compatible with the maintenance of representative and responsible government under the Constitution and is reasonably appropriate and adapted to achieving the legitimate end - Lange at 108.
Heerey J in his reasons for judgment, which I have had the advantage of reading, draws an important distinction between the basis and content of the constitutional implied freedom of communication in Australia and the express guarantees of freedom of speech “as such” under the First Amendment to the Constitution of the United State and Section 2 of the Canadian Charter. I respectfully agree with that distinction.
But to recognise the distinction is not to define the range of communications protected by the implied freedom. The source of the implication is the provision made by the Constitution for a system of representative democracy. The conditions necessary for the exercise of that democracy are to be protected. On that basis there is protected “the freedom of the Australian people to discuss government and political matters....” - Nationwide News at 50. The discussion of government may include “information, opinions and ideas about all aspects of the government of the Commonwealth...” - Nationwide News at 74, see also Cunliffe v The Commonwealth (1994) 182 CLR 272 at 364. Political matters are not limited to matters concerning the functioning of government. They may include broad discussion about the social and economic organisation of society as well as about its laws and proposals for their change. It is “a wide range of matters that may call for, or are relevant to, political action or decision” - Australian Capital Television at 138. In Theophanous at 124, Mason CJ, Toohey and Gaudron JJ saw the concept of political speech as extending, in the words of Barendt to “all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about”.
The potential range of political discussion was indicated by Toohey J in Cunliffe at 379 where, after reviewing dicta on the point in Nationwide News and Australian Capital Television, his Honour said:
“These statements, at their lowest, assert an implied freedom on the part of the people of the Commonwealth to communicate information, opinions and ideas relating to the system of representative government. At their highest, they recognise a freedom to communicate in relation to public affairs and political matters generally.”
In the recent joint judgment in Lange, the High Court retained the formulation “government and political matters” to describe the subject matter of the discussion that is within the constitutional implication. In the subsequent decision in Kruger v The Commonwealth (1997) 146 ALR 126, Toohey J at 177 restated the adoption by Mason CJ, Toohey and Gaudron JJ in Theophanous of the observations of Barendt quoted above. In so doing his Honour added:
“Nothing said in Lange diminishes the scope of the implied freedom as I have identified it.”
The various cases and the terms in which they describe the implied constitutional freedom leave open the possibility of further development of the law as to what will constitute “political discussion”. The adoption of the observation taken from Barendt would support a view that the category of such discussion is open.
There is much to be said for the conclusion that “The Art of Shoplifting” falls outside the scope of political discussion. But, inelegant, awkward and unconvincing as is its attempt to justify its practical message about shoplifting by reference to the evils of capitalism, it is arguable that in some aspects it would fall within a broad understanding of political discussion. That characterisation, however, will not invalidate the effective operation upon it of a law which is enacted for a legitimate end, is compatible with representative and responsible government and is reasonably appropriate and adapted to achieving that end.
Deane and Toohey JJ said in Nationwide News at 77:
“...a law prohibiting conduct that has traditionally been seen as criminal (eg conspiring to commit, or inciting or procuring the commission of, a serious crime) will readily be seen not to infringe an implication of freedom of political discussion notwithstanding that its effect may be to prohibit a class of communications regardless of whether they do or do not relate to political matters.”
The law in question in this case is the National Classification Code and the supporting provisions of the Classification (Publications, Films and Computer Games) Act 1995 (Cth). It is the construction of that law paying due regard to the common law value of freedom of expression; Australia’s international obligations under the ICCPR and the implied constitutional freedom that is the Court’s primary task. In my opinion properly construed for the reasons that follow, the relevant provisions of the Classifications Code and the supporting provisions of the Act are enacted for a legitimate end, are compatible with representative and responsible government and are reasonably appropriate and adapted to achieving that end.
TO INSTRUCT IN MATTERS OF CRIME
The Classification (Publications, Films and Computer Games) Act 1995 (Cth) incorporates by reference in s 9, the provisions of the Classification Code. So far as its language permits the Code is to be construed conformably with the requirements of the ICCPR, common law with which that Convention is consistent in relation to freedom of expression and the implied constitutional freedom of communication.
In positive recognition of freedom of expression, the Code is literally consistent with those requirements. For it mandates application by the Classification Review Board of the principle that “adults should be able to read, hear and see what they want”. That principle is cast in terms of the freedom of adult consumers. It may be accepted that it conveys a correlative freedom on the part of writers, publishers, film makers and producers of computer games to write, publish, make and produce what they want.
The construction of the qualifying criteria justifying refusal of classification is not simply a matter of diminishing the freedom so recognised by subtracting from it those restrictions construed in isolation. Their construction must be informed by the principle that recognises the freedom. They must also be construed in light of the other principles enunciated in the Code although none of those appears to have general application to a publication “that promotes, incites or instructs in matters of crime”.
The phrase, “promote, incite or instruct” is a collocation of overlapping meanings. According to the Shorter Oxford English Dictionary, to promote is to further the growth, development, progress or establishment of (anything); to further advance, encourage. To incite, is to urge or spur on; to stir up, instigate, stimulate. To instruct, is relevantly to furnish with knowledge or information; to teach or educate.
The word “instruct” does not have to be construed in a way which excludes all elements of promotion or incitement. To do so would lead to a broad construction satisfied by the mere fact that a publication furnishes the reader with knowledge on “matters of crime”. On that basis it could be argued that books or films describing or depicting the commission of crimes, real or fictitious, instruct in matters of crime. So too, a detailed newspaper report of how a particular crime was effected might be said to instruct in matters of crime.
Consistently with the principle of freedom of expression recognised by the Code itself, it must appear from the publication in question that it goes beyond the mere provision of information about crime and teaches or educates in matters of crime. Reflecting the theme of promotion or incitement the provision of information on matters of crime will constitute instruction if it appears from the content and context of the article, objectively assessed, as purposive, the relevant purpose being to encourage and equip people with the information to commit crimes. So construed, this provision of the Code in my opinion seeks by reasonable and appropriate means to protect the rule of law which is of the essence of democratic society with representative and responsible government. Moreover, in its application to the crime of stealing it seeks to protect a fundamental right recognised in the Universal Declaration of Human Rights which is the right to own property alone as well as in association with others.
The approach of the learned trial judge was criticised by the appellants as accepting a meaning of instruct that was merely “to furnish with knowledge” (other than stating the obvious). It may be that the adoption without qualification of the dictionary meaning including those words could convey a wider sense than is appropriate. But as his Honour said in his judgment:
“...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.”
In any event for reasons I will advert to shortly, the article in question, as assessed by the Classification Review Board, fell within the purposive meaning of “instruct” to which I have referred.
The appellants submitted that a publication cannot be said to “instruct in matters of crime” unless the evident intent and the likely effect of the publication is to bring about the commission of the crime. It is difficult to see how a rule requiring assessment of the likely effect of a publication in bringing about the commission of a crime would work in practice.
In my opinion the proposed limitation involves a reading down of the word “instruct” which is not justified having regard to its ordinary meaning and the constructional principles to which reference has already been made.
But conformably with the principle of freedom of expression, it cannot be extended to a publication which merely informs about matters of crime.
In considering whether a publication instructs in matters of crime in the purposive sense, the assessment is objective. The existence of words in the publication which, literally read, constitute such instruction, will not necessarily bring the publication within the Code. It must be read as a whole and in context. So a writing which is satirical or ironic or is offered as parody may not be instructional in the sense required by the Code. Its satirical or ironic character may be such as to negate instruction by conveying the message that it is not to be taken seriously. In other words it is not the purpose of the writing to encourage or equip the reader with information for the commission of a crime. There may be other indicators from tone and content including the nature of the publication and the market to which, on the face of it, it is directed that indicate a different characterisation. In student publications in particular it may be open to treat outrageous or offensive or shocking statements as statements whose purpose is to do little more than outrage, offend or shock even if presented in a form susceptible of a literal characterisation as instructional.
The evaluation of a publication is a matter for the Board in the discharge of its duties under the Act. The function of this Court upon an application for judicial review is to decide whether the Board has acted in accordance with the law. It is not to substitute its own assessment of the publication for that of the Board. Nor should it seek to judicialise the process of administrative decision making by imposing rigorous standards of detailed explanation.
The Board had regard to what it called “the content, theme and tone of the publication” which it found to be instructional and hortatory. In coming to that conclusion it referred to various phrases used in the article such as “suss out”, “don’t be put off”, “Try to find where...”, “make sure”, “always double back” and “never get too confident”. The layout of the article, in the view of the Board, conveyed an appearance of instruction by its division into six sections with headings and numbered sub-sections.
The approach taken by the Board, in substance if not in strict form, lay well within the application of an objectively assessed purposive construction of the word “instruct”. And although it may be unnecessary to say so, in my opinion, that evaluation was correct. The question whether the character of the publication was intended to outrage, offend or shock rather than instruct was not in terms addressed by the Board. However, its assessment of the nature of the article was inconsistent with such a conclusion.
In my opinion, neither the Board nor his Honour is shown to have erred in their approach to construction and the application of the law to the publication in question.
CONCLUSION
For the above reasons, the appeal should be dismissed with costs.
I certify that this and the preceding twenty three (23) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice French
Associate:
Dated:
Counsel for the Appellants: G T Pagone QC and W Harris Solicitor for the Appellants: Western Suburbs Legal Service Incorporated Counsel for the Respondent: P Hanks and R Doyle Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 7 October 1997 Date of Judgment:
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 314 of 1997
BETWEEN:
MICHAEL BROWN
FIRST APPELLANTMELITA BERNDT
SECOND APPELLANTBEN ROSS
THIRD APPELLANTVALENTINA SRPCANSKA
FOURTH APPELLANTAND:
THE MEMBERS OF THE CLASSIFICATION REVIEW BOARD OF THE OFFICE OF FILM & LITERATURE CLASSIFICATION
RESPONDENTJUDGES:
FRENCH, HEEREY AND SUNDBERG JJ
DATE OF ORDER:
24 MARCH 1998
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 314 of 1997
BETWEEN:
MICHAEL BROWN
FIRST APPELLANTMELITA BERNDT
SECOND APPELLANTBEN ROSS
THIRD APPELLANTVALENTINA SRPCANSKA
FOURTH APPELLANTAND:
THE MEMBERS OF THE CLASSIFICATION REVIEW BOARD OF THE OFFICE OF FILM & LITERATURE CLASSIFICATION
RESPONDENT
JUDGES:
FRENCH, HEEREY AND SUNDBERG JJ
DATE:
24 MARCH 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
HEEREY J:
I agree that the appeal should be dismissed. It is important that the article in question be read as a whole. The full text of the article is set out in a schedule to these reasons.
“INSTRUCT IN MATTERS OF CRIME”
(a) The appellants’ argument
At the forefront of the appellants’ argument, as expressed in their counsel’s submissions, was the contention that “a publication cannot be said to ‘instruct in matters of crime’ unless the evident intent and the likely effect of the publication is to bring about the commission of crime” (emphasis in original).
As Sundberg J notes, this argument was not put to the Board, or to Merkel J. Indeed it was argued before his Honour that the intent of the article was an irrelevant consideration and the Board had erred in law by taking it into account.
The only dictionary definitions of the word “instruct” referred to by counsel for the appellants were “To direct or command; furnish with orders or directions” (Macquarie) and “Direct, command” (Concise Oxford). But in that sense, the word conveys nothing as to the likely reaction of the person instructed (or directed or commanded). A direction or command may or may not be obeyed.
Even if the word “instruct” as used in the Act bears the meaning contended for by the appellants, it would still have been open to the Board to find that it applied to the article. As well as providing details of shoplifting techniques, the article urges and exhorts the reader to engage in that conduct. The appellants on the appeal, and before Merkel J, abandoned any argument that the article is ironical or satirical. The conclusion is that the author means what he or she says, that people, or at least those “living precariously on low incomes”, should engage in the crime of shoplifting, and in a regular and systematic way. That the author intended that the instructions should be followed is confirmed by those parts of the article which advise on what to do when caught.
As to the effect of the article
“To impart information which can be used ... is necessarily to encourage its use if the recipient of the information is so inclined.”
Langer v Australian Electoral Commission (1996) 186 CLR 302 at 326 per Dawson J.
It would have been open to the Board in my opinion to reason that since shoplifting occurs (to the extent of $1 billion per year in Victoria, according to the Retail Traders’ Association) there are obviously people around who commit that crime and others who might be prepared to commit it in some circumstances. The Board could have found (were the appellants’ present argument put to it) that the article, with its detailed practical advice as well as its moral rationalisation of shoplifting, was capable of leading existing shoplifters to commit the crime more efficiently or encouraging potential shoplifters to embark on such activity.
(b) A purposive construction
I agree with French J that in the present statutory context “instructs” is to be read as connoting (i) the imparting or teaching of knowledge, skills and techniques as to how crime may be committed, and also (ii) some element of encouraging or exhorting the commission of crime. Indeed the meaning “instructs” bears in the present context is close to the dictionary definitions relied on by the appellants. But for the reasons already mentioned, one is not concerned with the actual effect of the publication. Still less is the actual intent of the author or publisher relevant. The text is an objective one.
The purposive construction of “instructs in matters of crime” is consistent with the principle that free speech, while not an absolute, should be restricted only to the minimum extent necessary to protect other important values in a civilized society - in the present case the security of personal property. Such a construction would clearly place beyond the reach of the statute newspaper reports of crime, crime fiction and criminology material as well as publications which are satirical or ironic.
THE CONSTITUTIONAL ISSUE
The second limb of the appellants’ case was that the article fell within the protection of the implied Constitutional freedom for speech concerning political or government matters.
Unless the article is prima facie within that freedom, one does not get to the stage of considering whether the relevant statute is enacted for a legitimate end, compatible with representative and responsible government and reasonably appropriate and adapted to achieving that end. The statute simply operates according to its terms as properly construed, like any other statute.
For the following reasons I have concluded that the article was not protected by the Constitutional freedom.
The submissions of counsel for the appellants included a comprehensive and scholarly review of the jurisprudence of free speech under the First Amendment to the United States Constitution and The Canadian Charter of Rights and Freedoms 1982.
But the freedom of communication on matters of government and politics implied by the Australian Constitution comes from a very different source. In the United States and Canada, entrenched constitutional provisions protect speech as such. The First Amendment provides:
“Congress shall make no law ... abridging the freedom of speech, or of the press ...”
Section 2 of the Canadian Charter provides (in its English version):
“2.Everyone has the following fundamental freedoms:
(a)...
(b)freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c)...
(d)...”
In the United States and Canada, the Constitutional protection of speech is not conditioned on its subject matter or purpose, or the occasion of its exercise.
In Australia by contrast, the freedom springs from, and is concerned to protect, the system of representative and responsible government: see Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 at 104-106 and also at 106-107 where all the members of the High Court in their joint judgment say:
“... ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors.”
In Levy v Victoria (1997) 146 ALR 248 at 252 Brennan CJ said that the freedom is
“... needed to preserve the system of representative and responsible government that the Constitution prescribes.”
McHugh J in Levy (at 273) treated Lange as authority for the proposition that :
“... the Constitution protects the freedom of `the people of the Commonwealth’ (the members of the Australian community) to communicate with each other concerning those political and government matters that are relevant to the system of representative and responsible government provided for by the Constitution.”
In like vein, Kirby J in the same case (at 291) said the purpose of the freedom is
“... to contribute to protecting and reinforcing the system of representative government for which the text and structure of the Constitution provide.”
In the cases thus far dealing with the Constitutional freedom it was not in serious contest that the subject matter of the litigation concerned “political or government matters”. Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 and Lange itself arose out of allegedly defamatory statements concerning the conduct in office of members of Parliament albeit, in the last-mentioned case, of the New Zealand Parliament. (In Theophanous, Mason CJ, Toohey and Gaudron JJ said (at 123) that criticism of the views, performance and capacity of a member of Parliament is “at the very centre of the freedom of political discussion”.) Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, Langer v Australian Electoral Commission (1996) 186 CLR 302 and Muldowney v South Australia (1996) 186 CLR 352 involved electoral legislation. Nationwide News Ltd v Wills (1992) 177 CLR 1, concerned legislation which restricted criticism of a public body, the Australian Industrial Relations Commission. Cunliffe v Commonwealth (1994) 182 CLR 272 dealt with legislation setting up a system of registered immigration agents. In Levy, the plaintiff was a campaigner for legislative change in relation to a particular subject, namely duck shooting in Victoria. Kruger v Commonwealth (1997) 146 ALR 126 concerned the administration of a Commonwealth Ordinance and its application to the guardianship of Aboriginal children.
Insofar as the authorities have touched on the scope of the freedom, it is clear that the freedom is a broad and generous one. Thus the freedom cannot be confined to the election period: Lange at 107. It extends to conduct as well as speech: Levy at 267, 274 - 275. Nor, one would think, is the freedom confined by what happens to be the existing parameters of political discourse at any given time.
But the freedom is not absolute and must remain
“... limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution.” (Lange at 107)
However, in Theophanous Mason CJ, Toohey and Gaudron JJ said (at 124) that the concept of “political discussion” was not “exhausted by political publications and addresses which are calculated to influence choices”. Their Honours continued (at 124):
“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 CJ endeavoured to capture when, in Australian Capital Television, he referred to `public affairs’ as a subject protected by the freedom.” (Footnotes omitted)
I would, with respect, doubt that this statement is to be taken in the literal sense for which the appellants contend, that is to say divorced from the democratic system of law making and administration which is the touchstone of the Constitutional freedom. In any event, the statement does not form part of the ratio of Theophanous where, as already pointed out, there was no issue as to whether the publication complained of concerned political or government matters. And the comprehensive and authoritative restatement of principles in Lange leaves no room for any contention that the freedom extends to the discussion of any subject matter whatsoever that might interest some members of the public: see the joint judgment at 104-107 and particularly the passage at 107 where the High Court says:
“If the freedom is to effectively serve the purpose of ss 7 and 24 and related sections, it cannot be confined to the election period. Most of the matters necessary to enable `the people’ to make an informed choice will occur during the period between the holding of one, and the calling of the next, election. If the freedom to receive and disseminate information were confined to election periods, the electors would be deprived of the greater part of the information necessary to make an effective choice at the election.
In addition, the presence of s 128, and of ss 6, 49, 62, 64 and 83, of the Constitution makes it impossible to confine the receipt and dissemination of information concerning government and political matters to an election period. Those sections give rise to implications of their own. Section 128, by directly involving electors in the States and in certain Territories in the process for amendment of the Constitution, necessarily implies a limitation on legislative and executive power to deny the electors access to information that might be relevant to the vote they cast in a referendum to amend the Constitution. Similarly, those provisions which prescribe the system of responsible government necessarily imply a limitation on legislative and executive power to deny the electors and their representatives information concerning the conduct of the executive branch of government throughout the life of a federal parliament. Moreover, the conduct of the executive branch is not confined to ministers and the public service. It includes the affairs of statutory authorities and public utilities which are obliged to report to the legislature or to a minister who is responsible to the legislature. In British Steel Corp v Granada Television Ltd, Lord Wilberforce said that it was by these reports that effect was given to `[t]he legitimate interest of the public’ in knowing about the affairs of such bodies. Whatever the scope of the implication arising from responsible government and the amendment of the Constitution may be, those implications cannot be confined to election periods relating to the Federal Parliament.” (Emphasis added, footnotes omitted)
Throughout this passage their Honours mark out the extent of the freedom by repeated reference to the system of representative and responsible government. Moreover, the freedom comes not from some external, abstract concept of representative government but “only to the extent that the text and structure of the Constitution establish it”: (Lange at 112)
In my respectful opinion, an illuminating insight into the extent of the freedom is provided by the statement of Gaudron J in Kruger (at 199):
“Freedom of political communication is a freedom which extends to all matters which may fall for consideration in the political process.”
Earlier (at 196) her Honour had said that the Constitution
“... mandates whatever is necessary for the maintenance of the democratic processes for which it provides.”
A practical illustration of this concept in action comes from the judgment of McHugh J in Levy (at 276):
“Plainly, the plaintiff and other protesters did not seek to involve public and government opinion merely by their own spoken utterances, placards and posters. The argument for the plaintiff made clear, as his statement of claim indicates, that the protesters also sought to enter the permitted hunting area because their activities in that area would attract television coverage which would maximise their opportunity to influence public opinion. Mr Castan QC said:
We are dealing with a political process here and television is the means by which one influences politicians and influences public opinion and in the case of this particular exercise, if you want to influence people to have a different view about killing these particular animals, you would have to do it in a dramatic way and highlight the issues and if that is emotional or unreasoned, so be it.
No doubt the protesters believed that televised images of the bloodied bodies of dead and wounded ducks and of angry confrontations between the shooters and the protesters were more likely to attract public attention to their cause than a placard-carrying demonstration outside the Parliament of Victoria.
For the reasons that I have given, the constitutional implication extends to protecting political messages of the kind involved here and also the opportunity to send those messages. By prohibiting protesters like the plaintiff and any accompanying media representatives from entering the permitted hunting area at Lake Buloke, the regulations effectively prevented the protesters from putting the kind of political message to the people and Government of Victoria that they wished to put to them. It is beside the point that their arguments against the alleged cruelty of duck shooting could have been put by other means during the periods when the regulations operated. What the regulations did was to prevent them from putting their message in a way that they believed would have the greatest impact on public opinion and which they hoped would eventually bring about the end of the shooting of game birds. That being so, and subject to one qualification, the regulations effectively burdened their freedom to communicate with other members of the Australian community on a political matter.”
The concept of the political process (a synonym in this context for the democratic process) is a dynamic thing, an ongoing discourse about who ought to govern us, how we ought to be governed, and what laws should bind us. It is better seen from this perspective than considered as a static thing, dependent on categorisation of subject matter.
In the present case, the article does not concern “political or government matters”. The author is not advocating the repeal of the law of theft, either generally or in respect of theft from shops owned by large corporations. The article says nothing, expressly or by implication, about the conduct of holders of elected or appointed public office or the policies which should be followed by them. The article is not addressed to readers in their capacity as fellow-citizens and voters. The article does not even advocate breaking one law as a means of securing the repeal of another law perceived as bad, as with draft card burning in protest against conscription for Vietnam. (I do not express any view as to whether such conduct would or would not fall within the Constitutional freedom; the issue has not arisen in the present case.)
The appellants’ counsel pointed out in their submissions that writers have from time to time advocated theft as an appropriate means of reallocation of resources (Oscar Wilde in “The Soul of Man under Socialism”), or of political dissent (“On Maoism: An Interview with Jean -Paul Sartre” in Telos, Summer 1973), or as a central tenet of Anarchist theory (Proudhon, “Qu’ est-ce que la propriété?”).
However, it should be noted that Anarchist theory extended from non-violent writers and political leaders like Tolstoy, Thoreau and Ghandi to Proudhon (“property is theft”), Bakunin, who declared that “the passion for destruction is also a creative urge”, and the Anarcho-Syndicalists whose creed was that unions should become militant organizations dedicated to the destruction of capitalism and the state.
All this may be in one sense politics, but the Constitutional freedom of political communication assumes - indeed exists to support, foster and protect - representative democracy and the rule of law. The advocacy of law breaking falls outside this protection and is antithetical to it.
It follows that in my opinion United States decisions like Brandenburg v Ohio 395 US 444 (1969) and the line of cases which follow it are not applicable to the implied freedom under the Australian Constitution. There is no Constitutional protection for speech which is “mere advocacy” or abstract teaching of the necessity or propriety of criminal or violent conduct. The reason is simple. Such conduct is not part of the system of representative and responsible government or of the political and democratic process. In Constitutional terms those who advocate, or engage in, such conduct are in the same position as they were before 1992.
If it were necessary to decide, I would agree with the other members of the Court that the National Classification Code is, in this respect, enacted for a legitimate end (the prevention of crime), is compatible with representative and responsible government and adopted to achieving that end.
SCHEDULE
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 art of shoplifting
Within capitalism, most of us are either (1) alienated from our labour and hence dependent on the ruling classes for commodities as basic as food and clothing, (2) excluded from the division of labour, in which case we are likewise dependant on the State, or (3) performing unpaid and/or unrecognised labour and hence dependant on patriarchal relations for food, clothing, etcetera. In any case, our access to resources is severely limited by contemporary relations of domination. One partial solution to this problem may be to STEAL.
Sadly, however, many people living precariously on low incomes tend to either: (1) avoid shoplifting for anachronistic moral and/or ethical reasons; or (2) remain ignorant of the better methods and techniques of shoplifting, thus failing to maximise their lifting potential.
From the outset, the golden rule of theft should be enunciated: NEVER STEAL FROM SOMEBODY WHO COULD CONCEIVABLY BE A COMRADE. Hence kicking into a house on Bell Street with a beaten up old Mazda in the yard is irresponsible and counter-revolutionary!
Be careful, too, about taking stuff from small ‘corner store’ type shops - you could be ripping off someone in a situation not dissimilar to your own. On the whole, it is best to play it safe and go straight for the big corporate fuckers.
Some people will suggest that shoplifters are a selfish breed, since ‘we all pay for it in the end’ through inflated prices to cover losses and so forth. However, comrades, this and closely analogous arguments are used to justify lowering wages, breaking unions, lowering corporate taxation and taxation on the rich, etcetera. If we are going to accept the idea we have an interest in maintaining the high profits of the rich and corporate sector we may as well sell ourselves into bonded slavery now, or join the Liberal Party.
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.
preparing oneself for the big haul
1. If possible, you should always have some money on you when intending to shoplift, because if you’ve got none, it’s rather hard to argue that to steal the item was a spontaneous decision. As a result, if you’ve got no money and are caught shoplifting you are more than likely to be charged for burglary as well as theft.
2. Buying something at the same time that you steal stuff doesn’t necessarily ensure success. Approaching staff for items you are absolutely sure they don’t have is just as good. Think of something that you know they don’t have (ie. A doona cover with a specific pattern on it or something equally obscure) and pretend that you are looking for this, so that you have an excuse for being there. If staff are ever suspicious of you or ask if they can help you, ask them if they’ve got the thing you are sure they don’t have. Never screw this up - if you do you will have to buy the item or they may realise that you are there to steal.
3. It is always a good idea to carry a bag although you should never stash anything in it - if security/sales staff are suss on you the first place that they’ll check is your bag and it may just get you off the hook if they can’t find anything suspicious inside of it.
4. Remember that there is no such thing as a standard store detective - there is no qualifying dress code, age, race, gender or class. Grandmas will bust you this week and next week it’ll be a 5 year old kid.
5. Just as there is no typical store detective nor is there a standard shoplifter. Security do not go looking for the poorly dressed people. They may pick on you out of boredom, but remember, only an unsuccessful store detective picks on poorly dressed people. By the same token don’t believe the stale myth that suits + dresses = more successes; security anticipate that professional shoplifters will dress up a bit. Wear whatever you want.
on entering the maze
1. As soon as you enter the store, suss out the sales people. First impressions often count here. You could find a valuable blind-eye turning ally in younger or less-affluent employees. Alternatively, an employee can often stand out as a more wishy-washy gullible individual - so even if they see you they are likely to be too gutless to mention it, either to you or to security.
2. Don’t be put off by signs such as ‘shoplifters will be prosecuted’ or ‘security police patrol this store’. Often this is just bluff anyway, and in any case there is no security measure that cannot be undone by a clever shoplifter or a quick talker. Do, however, keep your eye on security and be on the lookout for video surveillance cameras.
3. Try to find out where the video surveillance monitors are and who is watching them; often they are not even looking at them. See if you can get a glance at their monitor. Often it is one monitor hooked up to 20 cameras which changes sequentially (every 30 seconds or so). Other times its one guy in a room looking at 50 screens while reading the paper or glued to the box. These monitors are usually pretty small and have a wide aperture, showing more of the room but not enough detail to adequately see what you are up to.
4. It is a good idea to keep your back to the camera as much as possible without looking suspicious. Checkout camera (hold-up camera’s) (sic) are often set up to check on employees, so they are not hard to keep your back turned to.
blind-spots and other lifting techniques
1. A blind-spot is a section of the store where you are barely visible and can thus feel free to both dump and collect stuff, without fear of being seen. Display units can make perfect blind-spots - they ensure security is confident they have their eye on you, when in fact they can only see your top half - at the same time they enable you to keep your eye on security. For these reasons, the best blind-spots are usually below the chest - around waist high. Blindspots are good for loading into the lip of your jeans or into a jacket.
2. Make sure your blind-spot is not under surveillance. Never hang around your blind-spot for too long. Most of all, be careful to never lead security to your blind-spot.
3. A good method is to take everything you want to your blind-spot and collect it all later in one go, or better still get someone else to collect it for you. Getting someone else to collect for you can be a great system, particular with exchanges - which I’ll come to later. If you are really pedantic, or you think that they are watching you, then load up, go to the toilets and pass the stuff under the wall/petition of the cubicle to a waiting friend in an adjoining cubicle and get them to leave with it.
5. Speaking of dunnies and change-rooms, one of the oldest tricks in the book is to put more than one garment on a hanger (works particularly well with women’s underwear), go to the change-rooms and put the garment underneath what you are wearing. Alternatively, if you are a woman, you can slip your old bra on a hanger and put on the new one. Don’t be put off by the staff as you enter the change-rooms - they are usually quite disinterested and so long as the number of hangers you exit with matches the little plastic number they’ve given you they’ll be satisfied.
6. On the subject of women’s underwear, the lingerie department is ideally suited to male shoplifters - not only is it the perfect excuse for looking embarrassed or suspicious (they have come to expect this), but staff are less likely to harass you by trying to help you and will be more sympathetic generally.
exchanging crap for more crap
Exchanging things - that is, taking the redistribution of wealth into your own hands by refunding yourself for an item you never payed for, or swapping something you stole that you don’t want for something you do want, or swapping something you don’t want that is unstealable and therefore refundable - is a whole new ball game.
1. If you plan to steal something and then make an exchange always take stuff that people are likely to take back like sheets, or other obscure household items. If questioned you can say to them “as if I’m gonna keep the receipt. I didn’t plan to bring it back”. Books and other small but expensive items such as computer software are also great exchangeables.
2. Stealing women’s underwear and cosmetics are the perfect alibi for male shoplifters who specialise in exchanges. Male customers always fuck up buying stuff for their girlfriends/wives/mothers and when it comes to lingerie, its just too easy for a guy to look goofy, have sales staff sympathise and all too quickly agree to exchange or refund the items. This works particularly well around Xmas time when you can tell them you bought it for your mother but she already had that one.
3. Never take an exchange item to the store you stole it from and make sure the other store (ie, Myers in Doncaster as opposed (sic) Northland) has the same item before you take it back.
4. Make sure you have chosen your item before you approach anyone for an exchange. Also, tell the people in the first department that you want an exchange without mentioning receipts - they should send you down to the appropriate department for your other item and then ring up this department providing a referral, which if you are lucky will mean you do not have to provide a receipt given that everything appears legitimate.
5. The first time you exchange a stolen item for another product make sure you get something unstealable in return, like a video, watch, or something else kept behind a counter, so that the second time you do it, even if you don’t get an exchange receipt they will not suspect that it is stolen.
6. Exchange receipts are a pain in the arse. Sometimes smart arse sales people will write across the original docket ‘no original receipt’ which is a problem, so if you have a bit of money on you, it is a good idea to exchange for something that costs a little bit more so that they have to give you a cash receipt.
7. Don’t freak out if they call security while you are acting out an exchange - as returns will often require security’s signature this is quite standard procedure and nothing to worry about.
8. If you’re having problems getting an exchange, big department stores normally have consumer rights people located upstairs somewhere - they can usually be contacted by information telephones. These are people with big egos who like to wield power and the sales staff, who are much lower down the hierarchy, are usually pretty freaked out by this power. If you do get the ego from upstairs on side, they will organise a sales person to look after you and after the egomaniac goes up upstairs again, they sure will - because the sales person does not want to reprimanded (sic) by the same person from upstairs more than once, you will be practically able to get them to do anything that you want them to. A good technique is to tell the person upstairs a different story to the one that you tell the sales person. You can get angry at this stage and tell them that they fucked you around, that you don’t want an exchange any more and that you want a refund now and they will usually comply.
9. Be wary of the long term employee - you’ve got to know when to stop. Be particularly wary of the head of sales or middle management who have been working there for a long time (sometimes 20 years or more) and are not as scared of the big guys from upstairs as are the newer employees. You can often convince some of the younger staff that they are allowed to do refunds if you tell them that you used to work there.
10. Another commonly used technique is to take an empty bag from the same store with a receipt in it for previously payed for items and then nick the same stuff, which gives you the perfect alibi.
11. Better still, if you’ve got some money, find two things that are worth however much you’ve got, take them out of the store and stash them somewhere, then go back in and buy the exact same items. While leaving the checkout, make a big deal about it. “Am I doing the right thing? Will she like it? Will it fit him? etcetera” and then “what the heck!” (Make sure you don’t go overboard and push them to mention keeping the receipt or worst of all mention it yourself.) Pay for it. About half an hour to a couple of hours later (not too long) take the stuff back to the same sales people and they’ll usually give you cash without a receipt because they remember selling it to you. If you pull it off you’ve got a cash receipt and your stolen goods which you can exchange at another store.
leaving the store safely
1. Always double back just as you are about to leave the store so that you can check if anyone is following you (99.9% of the time they will follow you out of the store before they approach you). Alternatively, go up and down an escalator or in a lift and press every button in the lift and it will be obvious if anyone is following you.
2. If people are watching you, whatever you do, do not try to discreetly dump stuff unless you are absolutely sure that you can get away with it. If caught dumping stuff they usually won’t charge you but they may fuck you around for a few hours.
3. If you are caught dumping stuff never let a store detective know it was because of them. Always make out it was a result of a sudden guilty conscience. Never let a store detective know that you know that they are on to you, because they won’t put them on you the next time. That way you get to know store security and are able to keep your eye on them as much as you can.
4. If you want to have a bit of a fun and don’t plan to continue shoplifting that day, or ever or you just don’t give a shit, go up to a store detective and treat them like a sales person, asking them for help etcetera. It is just as embarrassing for them to be caught as it is for you. It is always a good thing to break their spirits or at least bring them down every now and again. Alternatively, use reverse psychology on them. Say “I’m going down to such and such department. I’ll see you down there”. Often they’ll be too embarrassed that they’ve been busted and think that you won’t do it now that you’re being watched and you will have the run of the mill.
NEVER GET TOO CONFIDENT or you will start to make silly mistakes.
the end
Finally, if you get caught - lie your teeth out! Never admit to premeditation. Always say that the opportunity arose, so you took it. Don’t act tough or be a smart arse. Cry. Bawl. Admit a guilty conscience. Beg them not to call the cops. Tell them that CSV will take your kids off you and then weep.
Even though some stores say they have a policy to call the police it is not necessarily true and they may, after lots of tears and admissions of guilt, just get you to sign a statement which says you’ll never enter that store again. If the cops do arrive, its a good idea to act scared shitless because they may assume you’re a first offender and not bother to check your record. Don’t antagonise the filth - it is their personal discretion as to how bad you get busted.
You are most likely to be charged with ‘theft’ if caught shoplifting, but you can be charged with ‘burglary’ as well if you don’t have any money on you. “Equipped to steal” is what you will be charged with if, for example you have a slit in the lining of your jacket for concealing stolen goods. ‘Obtaining financial advantage’ and ‘deception’ are what you are likely to be charged with as well as ‘theft’, if caught exchanging stolen items.
Carmen Lawrence, with thanks to Josuah and Destroyer 267.
If you get busted, the following telephone numbers will be useful.
Alphaline Emergency 24 hour free legal service
(for people under 25 years old) Phone: 419 7427
Fitzroy Legal Service Phone: 419 3744
Aboriginal Legal Service Phone: 419 3888
West Heidelberg Legal Service Phone: 459 8833
I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey
Associate:
Dated: 24 March 1998
Counsel for the Appellants: G T Pagone QC and W Harris Solicitor for the Appellants: Western Suburbs Legal Service Counsel for the Respondents: P J Hanks and R M Doyle Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 7 October 1997 Date of Judgment: 24 March 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VG 314 of 1997
BETWEEN:
MICHAEL BROWN
FIRST APPELLANTMELITA BERNDT
SECOND APPELLANTBEN ROSS
THIRD APPELLANTVALENTINA SRPCANSKA
FOURTH APPELLANTAND:
THE MEMBERS OF THE CLASSIFICATION REVIEW BOARD OF THE OFFICE OF FILM & LITERATURE CLASSIFICATION
RESPONDENT
JUDGES:
FRENCH, HEEREY AND SUNDBERG JJ
DATE:
24 MARCH 1998
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
SUNDBERG J
RABELAIS - JULY 1995 EDITION
Rabelais is a monthly student journal published by the La Trobe University Students’ Representative Council. The appellants were the editors of the July 1995 edition. That edition includes an editorial, articles, graphics, poetry, reports to students and letters to the editor. One of the articles is entitled “The Art of Shoplifting” and the title is in large lettering. Above the title, in heavy print, are these introductory words:
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 opening part of the article advocates redistributing wealth from the rich to the poor. After suggesting that one partial solution to the evils of capitalism “may be to STEAL”, the article continues:
Sadly, however, many people living precariously on low incomes tend to either: (1) avoid shoplifting for anachronistic moral and/or ethical reasons; or (2) remain ignorant of the better methods and techniques of shoplifting, thus failing to maximise their lifting potential.
Then follows a “list of effective methods and observations that may prove useful” under the following headings: “preparing oneself for the good haul”, “on entering the maze”, “blind‑spots and other lifting techniques”, “exchanging crap for more crap”, “leaving the store safely”, and “the end”. Under the last heading is advice about what to do “if you get caught” which includes the telephone numbers of several legal services.
CLASSIFICATION LEGISLATION
(a) Original co‑operative scheme
At the time the July 1995 edition of Rabelais was published a legislative scheme for censorship operated in Australia. Publications were classified under the Classification of Publications Ordinance 1983 (ACT), and classifications were adopted and given effect to under complementary State and Territory legislation. Under the Ordinance classifications were made by classification officers: s 18. Any publication which “instructs in matters of crime or violence” was to be refused classification. Decisions of classification officers were reviewable by a Review Board: s 20. Under State and Territory legislation, such as the Classification of Films and Publications Act 1990 (Vict) (“the 1990 Act”), an “objectionable publication” included a publication which “promotes, incites or instructs in matters of crime or violence” or which “has been, or would be, refused classification”: s 3. Such a publication was not to be published, sold or distributed: ss 48, 49, 50. A penalty of 240 penalty units or two years imprisonment applied to offences under ss 48, 49 and 50.
(b) 1995 co‑operative scheme
The Classification (Publications, Films and Computer Games) Act 1995 (Cth) (“the Act”) came into operation on 1 January 1996. The Act is part of a revised co‑operative scheme which provides for uniform censorship throughout the country. Complementary laws exist in the State and Territories to give effect to and enforce classifications made under the Act. Section 7 establishes four classifications for publications: Unrestricted, Category 1 restricted, Category 2 restricted and RC (Refused Classification). Under s 9 publications, films and computer games are to be classified in accordance with the Code and the classification guidelines. The Code is set out in the Schedule and is in part as follows:
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:
Description of publication Classification
1. Publications that: RC
(a)describe, depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified; or
(b)describe or depict in a way that is likely to cause offence to a reasonable adult, a minor who is, or who appears to be, under 16 (whether the minor is engaged in sexual activity or not); or
(c)promote, incite or instruct in matters of crime or violence.
Classifications are to be made by the Classification Board (“the Classification Board”) established by s 45: s 10. Under s 11 the matters to be taken into account in making a decision on the classification of a publication 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.
The Classification Review Board (“the Review Board”) is established by s 72. A person aggrieved by a decision of the Classification Board to classify or refuse to classify a publication may apply to the Review Board for a review of the decision: s 42(1). The Review Board must deal with the application for review in the same way as the Classification Board deals with the application for classification.
Part 9 contains transitional provisions. Under s 96(1) a classification decision made under the Ordinance has effect as if it had been made by the Classification Board under the Act. Thus a review of that decision by the Review Board is made under the Act rather than the Ordinance.
The complementary legislation enacted in Victoria is the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (“the 1995 Act”). The scheme of the 1995 Act, including the penalties for disseminating “objectionable publications”, is similar to that of the 1990 Act: see ss 3, 25, 30, 31, 32 and 47 of the 1995 Act. Under the 1995 Act an “objectionable publication” includes one which “promotes, incites or instructs in matters of crime or violence” or which “is classified RC or would, if classified, be classified RC”: s 3.
THE REFUSAL OF CLASSIFICATION
The Retail Traders’ Association of Victoria applied to the Chief Censor under the Ordinance to refuse classification of the July 1995 edition of Rabelais. The Chief Censor refused classification on the ground that the article “instructs in methods of shoplifting and associated fraud”. The appellants applied to the Review Board for a review of the Chief Censor’s decision. On 26 July 1996, after a re‑hearing of the matter on the merits, the Review Board confirmed the Chief Censor’s decision.
Under the heading “Findings on Material Questions of Fact” the Review Board said:
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 out 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.
Under the heading “Reasons for Decision” the Review Board said:
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 Review 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.
...
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.
The Review Board considered 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”.
APPLICATION FOR REVIEW
The appellants applied to the Court to review the Review Board’s decision under the Administrative Decisions (Judicial Review) Act 1977. The application was heard by Merkel J. His Honour was of the opinion that
“instruct” should be given its ordinary meaning of “to furnish with knowledge”
the phrase “matters of crime” means the “commission of crime”
to be a crime the conduct in question must fall within the category of conduct stipulated by the law as constituting a crime
the conduct in question must be generally recognised as a crime under the law of each State and Territory
“matters of crime” are not limited to violent crime or serious crime.
His Honour then summarised the Board’s conclusions as follows:
·shoplifting, ie theft, and fraud are crimes throughout Australia;
·the article was “instructional” in relation to the commission of a crime; ie 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.
Merkel J then said that each of those conclusions had been reasonably open to the Review Board on the material, and that there was no basis for concluding that it had erred in law in its construction of the Code or in its application of the Code to the article. He then rejected the appellant’s submissions that the Review Board had taken into account irrelevant considerations and had failed to take into account relevant considerations, and that the decision was unreasonable.
“INSTRUCT IN MATTERS OF CRIME”
The appellants take objection only to the first of the matters of construction decided by the primary judge, namely the meaning of “instruct”. Under the Code, publications that “promote, incite or instruct in matters of crime or violence” are to be classified RC. The appellants contend that a publication cannot be said to “instruct in matters of crime” unless the evident intent and the likely effect of the publication is to bring about the commission of crime.
One meaning of instruct in the Shorter Oxford English Dictionary is “To furnish with knowledge or information; to teach, educate”. The comparable Macquarie Dictionary meaning is essentially the same: “to furnish with knowledge, esp by a systematic method; teach; train; educate”. It was the Macquarie meaning that the primary judge adopted.
The appellants contended that the companion words “promote” and “incite”, which it was said involve an intent to bring about the commission of a crime and have the commission of a crime as a likely consequence, mean that those elements are present in the word “instruct”. I do not agree. The approach to interpretation identified by the maxim noscitur a sociis (the meaning of a word is affected by its companions) is only to be used when the meaning of a word is ambiguous or unclear. See Commissioner of Taxation v Whitehouse (1961) 104 CLR 25 at 31 per Dixon CJ, Fullagar and Kitto JJ and Reg v Morton (1986) 42 SASR 571 at 575. I do not think “instruct” has either of those qualities.
Further, the other publications in the RC classification are defined in terms that look to the effect or likely effect of the publication on the reader. Thus par (a) deals with publications which, for example, describe matters of drug misuse “in such a way that they offend ...”. Paragraph (b) deals with publications which describe or depict a minor in a way that is “likely to cause offence” to a reasonable adult. Paragraph (c), by contrast, does not require that the publication have any effect or likely effect on the reader. The absence of such a requirement, when it has been included in pars (a) and (b), is a clear indication that it is not to apply to publications falling within par (c).
In my view “instruct in matters of crime” involves two elements: first, furnishing readers with information as to how crime can be committed, and secondly, encouraging them to use that information to commit crime. The mere furnishing of information about how to commit crime is not sufficient. If it were, a newspaper report about how a bank was broken into and robbed might instruct in matters of crime. That could not have been Parliament’s intention. The reader must as well be encouraged to use the information. To determine whether the second element is present, one does not look into the mind of the author. The test is an objective one. Conformably with the view I favour, an article which merely states the obvious, or conveys information in such a general way that no learning is imparted, is not instructional. Nor do I think that an article that is clearly satirical or tongue‑in‑cheek is instructional. It will lack the educational quality that inheres in the word “instruct”, and readers will understand that it is not to be taken seriously.
FREEDOM TO READ
The appellants contended that the construction of the words “instruct in matters of crime” adopted by the primary judge infringes the constitutional guarantee of freedom of political communication because it would prevent the publication of political material which is neither intended nor likely to cause harm. It is said that the construction advanced by the appellants would not so infringe. Reference was made to cases to which the Board and the primary judge had been referred (Nationwide News Ltd v Wills (1992) 177 CLR 1, Cunliffe v The Commonwealth (1994) 182 CLR 272 and Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104) and cases decided since his Honour’s decision (Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 and Levy v Victoria (1997) 146 ALR 248).
The most recent and authoritative statement of the nature and extent of the constitutional guarantee is that of all the justices in Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 at 108:
the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution. The freedom of communication required by ss 7 and 24 and reinforced by the sections concerning responsible government and the amendment of the Constitution operates as a restriction on legislative power. However, the freedom will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies two conditions. The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end.
Their Honours had earlier described the “freedom of communication” referred to as “freedom of communication between people concerning political or government matters which enables the people to exercise a free and informed choice as electors”: at 106‑107.
There are several answers to the submission that the construction of “instructs in matters of crime” which I prefer causes the Act to infringe the protected freedom of communication. The first is that the article is not within the ambit of the freedom. That is so for two reasons. One is that it is not a communication concerning a political or government matter. Although its opening “redistribution” paragraph is “political” in one sense of the word, its true character is not political because it is overwhelmingly a manual about how successfully to steal. The other reason is that the article does not relate to the exercise by the people of a free and informed choice as electors.
The second answer to the submission is that even if the article were prima facie to fall within the freedom, the Act as interpreted satisfies the legitimate end of protecting the community from conduct likely to be harmful. The first condition referred to in Lange is not offended. Nor is the second. The relevant provisions of the Act are reasonably appropriate and adapted to achieving that protection. It is open to the legislature to conclude that furnishing people with information about how to commit a crime in a manner which encourages them to do so is conduct which it is proper to proscribe. It thus furthers a legitimate end and is not invalidated by the freedom.
THE BOARD’S APPROACH
The Review Board did not in its reasons closely examine the meaning of “instruct”. That is doubtless because the argument that was put to us as to the meaning of “instruct” appears not to have been put to the Board (or to the primary judge). Nevertheless it is clear that the Board adopted the meaning I favour. Thus it said that the article “provided practical instruction in techniques of shoplifting”. It provided considerable detail “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 out where ...’, ‘Make sure’, ‘always double back’, ‘never get too confident’.” The Board’s language reflects the two elements I have mentioned: the furnishing of information and the encouragement of its use.
It was for the Board, and not for the primary judge or for us, to determine whether the article instructs in matters of crime. The Court should interfere only if the Board’s conclusion was not reasonably open on the material before it. In my view it was open to the Board to conclude that the article instructs in matters of crime. The accumulation of detail, presented in a structured manner, and expressed in a directional “this is how you do it” fashion, gives the article the quality of a manual on shoplifting. In its own terms it is a step by step guide to that particular crime. It was thus open to the Board to be satisfied that the first of the elements I have mentioned was present. It was also open to it to be satisfied as to the second element. The article has an hortatory quality. The Board referred to “exhortations such as ‘suss out’, ‘Try to find out where ...’, ‘Make sure’, ‘always double back’ and ‘never get too confident’.” Imparting information in this fashion is necessarily to encourage its use: cf Langer v The Commonwealth (1996) 186 CLR 302 at 326.
The Board was alive to the distinction between an instructional publication on the one hand and a satirical, ironical or tongue‑in‑cheek publication on the other. It was plainly open to the Board to conclude that while the article was not without humour, it was not satirical, ironic or tongue‑in‑cheek. The Board considered and rejected the contention that the dominant character of the article was political. It acknowledged that the content of the July edition of Rabelais was political in flavour and that the opening part of the article (about 12 per cent) presents shoplifting as a legitimate method of redressing the imbalance between the rich and those on low incomes. It noted that the remainder of the article was a step by step practical guide to shoplifting. The Board was clearly entitled to conclude that the dominant character of the article was not political.
I agree with the primary judge that each of the Review Board’s conclusions was reasonably open to it.
RELEVANT CONSIDERATIONS
It was submitted that there were six relevant factors which the Board had failed to take into account. They were
(a)the content (in a broad sense) of the article itself ‑ that is, its political theme, and the exposition of ideas against that background;
(b)the content and nature of the balance of the July edition;
(c)the historical content and nature of the Rabelais publication generally ‑ that is, a university student publication which aims to be provocative;
(d)the identity of the appellants as editors of Rabelais ‑ that is, elected student editors;
(e)the identity of the Rabelais readership ‑ that is, other university students;
(f)the evidence of experts as to the nature and meaning of the article in a literary sense, and the manner in which it was likely to be understood by its readers.
Putting aside the question whether the matters listed are considerations the Board was bound to take into account (Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39‑41), the Board did not fail to take into account factors (a), (b), (c), (e) and (f). It expressly referred to each of them. The fact that the appellants were elected student editors (factor (d)) is not a consideration the Board was bound to take into account.
The fact that the appellants complain that the Board failed to take into account five considerations which on the face of its reasons it plainly did take into account shows that their real complaint is that the Board failed to give those considerations the weight the appellants consider they should have been given; that is to say enough weight to produce a different classification. Failure to give due weight to a relevant matter, as opposed to failure to take that matter into account, is not a ground of review. The Court has no power to review a decision on the merits. That is the task entrusted to the Board.
IRRELEVANT CONSIDERATION
The Board said that it took into account the Retail Traders’ Association’s concern about the cost of shoplifting to large retailers. The Association was the applicant for classification. It appeared before the Board, tendered evidence and made submissions. The Board did not take the Association’s concern into account for the purpose of determining whether the article instructs in matters of crime. Obviously that would have been to take an irrelevant consideration into account. The evident purpose of the Association drawing attention to its concern was to explain to the Board why it had applied for classification of the article, and the Board took account of it in this context.
CONCLUSION
The appeal should be dismissed.
I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg J
Associate:
Dated: 24 March 1997
Counsel for the Appellants: G T Pagone QC, C M Maxwell and W Harris Solicitor for the Appellants: Western Suburbs Legal Service Incorporated Counsel for the Respondents: P Hanks and R Doyle Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 7 October 1997
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