Creek and Office of Film and Literature Classification

DECISION AND REASONS FOR DECISION [2001] AATA 987

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2001/86

GENERAL ADMINISTRATIVE DIVISION       )
           Re      DAVID CREEK
  Applicant
           And    OFFICE OF FILM AND LITERATURE CLASSIFICATION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date3 December 2001
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal 1975, the Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
CUSTOMS – permission to import prohibited goods sought by applicant – self-education the purpose of importation of goods – whether the applicant conducts activities of an artistic, educational, cultural or scientific nature – Parliamentary intention of legislative scheme
Customs (Prohibited Imports) Regulations 1956, reg 4A
Moore and Attorney-General's Department (AAT 10017, 17 February 1995)
Moore and Attorney-General's Department (AAT 10492, 25 October 1995)

REASONS FOR DECISION

3 December 2001 Senior Member J.A. Kiosoglous MBE

This is an application for review by Mr David Creek (the applicant) for review of a decision of the respondent dated 14 September 2000 (T15/28) which refused permission to the applicant to import ten videotapes entitled "Blockbuster II The Sequel" pursuant to regulation 4A(2) of the Customs (Prohibited Imports) Regulations 1956 (the Regulations).
The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T15), together with 7 exhibits, 3 lodged by the applicant (Exhibits A1-A3) and 4 lodged by the respondent (Exhibits R1-R4), including one of the videotapes which was released from Customs for the purpose of the hearing of this matter. In addition, the Tribunal heard evidence from the applicant and the respondent called as a witness Mr Desmond Clark, Director of the Office of Film and Literature Classification. The applicant presented his own case and the respondent was represented by Ms K. Bean, of counsel.
The issue for consideration by the Tribunal in this matter is whether the applicant should be granted permission, having regard to the considerations enumerated in regulation 4A(2AA) of the Regulations, to import ten confiscated videotapes entitled "Blockbuster II The Sequel" which have been declared to be prohibited goods in accordance with regulation 4A(1A)(a) of the Regulations.
history of the application
Upon their importation into Australia, the applicant's videotapes were seized by Australian Customs Service (Customs). On 28 May 1998 the videotapes were forwarded to the respondent for advice as to whether the tapes were prohibited imports within the meaning of regulation 4A(1A)(a) of the Regulations (T1/1).
On 5 July 2000, the respondent advised Customs that it considered that the videotapes belonged to the class of goods described in regulation 4A(1A)(a) of the Regulations on the basis that the tapes contained depictions of cruelty. The respondent recommended that the tapes be declared prohibited imports (T13/26), stating that (inter alia):
"…
These films belong to the class of goods described in paragraph 4A(1A)(a), that is goods that:
'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 extend [sic] that they should not be imported'.
In the Office's view, the films contain depictions of cruelty."
On 25 August 2000, the applicant wrote to the respondent and requested permission to import the videotapes (T14/27).
On 14 September 2000, after considering the applicant's written submissions and the matters set out in Regulation 4A(2AA) of the Regulations, the respondent refused the applicant's request to import the tapes (T15/28).
On 7 March 2001, the applicant lodged an application for review with the Tribunal.
legislation
Regulation 4A of the Regulations reads (inter alia) as follows:
"4A.               Importation of objectionable goods
(1)       In this regulation, unless the contrary intention appears:
…
film includes a cinematograph film, a slide, video tape and video disc and any other form of recording from which a visual image, including a computer generated image, can be produced, but does not include a computer game;
…
(1A)     This regulation applies to publications and any other goods, that:
(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 imported; or
…
(2)The importation of goods to which this regulation applies is prohibited unless a permission, in writing, to import the goods has been granted by the Attorney-General or a person authorized by the Attorney-General for the purposes of this subregulation.
(2AA)In considering whether to grant a permission under subregulation (2), the Attorney-General or the person authorised by the Attorney-General is to have regard to:
(a)       the purposes for which the goods are to be imported; and
(b)the extent to which the person to whom any permission to import the goods would be granted conducts activities of an artistic or educational, or of a cultural or scientific, nature to which the goods relate; and
(c)the reputation of the person referred to in paragraph (b), both generally and in relation to an activity referred to in that paragraph; and
(d)the ability of that person to meet conditions that may be imposed under subregulation (3) in relation to the goods; and
(e)       any other relevant matters.
(2A)The Attorney-General may, by instrument in writing, appoint a person to be an authorized person for the purposes of subregulation (2).
(3)A permission under this regulation shall be subject to such conditions imposing requirements or prohibitions on the person to whom the permission is granted with respect to the custody, use, reproduction, disposal, destruction or exportation of the goods, or with respect to accounting for the goods, as the Attorney-General or a person authorized by the Attorney-General for the purposes of subregulation (2) thinks necessary to ensure that the goods are not used otherwise than for the purpose for which he grants the permission.
(4)Application may be made to the Administrative Appeals Tribunal for review of a decision of the Attorney-General under subregulation (2):
(a)       refusing to grant a permission; or
(b)granting a permission subject to conditions by the person to whom the permission was granted subject to conditions.
…
(10)     Subject to subregulation (6), if the Attorney-General:
(a)       refuses to grant a permission to a person; or
(b)       grants a permission to a person subject to conditions;
he or she is to inform the person of the decision by notice in writing within 30 days after making the decision.
(11)     A notice under subregulation (10) must include:
(a)a statement to the effect that application may be made to the Tribunal under the Administrative Appeals Tribunal Act 1975 for review of the decision to which the notice relates; and
(b)except where subsection 28 (4) of that Act applies - a statement to the effect that a person who is entitled to apply to the Tribunal for review of the decision may, under section 28 of that Act, request a statement that includes the reasons for the decision.
(12)A contravention of subregulation (11) in relation to a decision does not affect the validity of the decision.
…"

evidence of the applicant

The applicant told the Tribunal that he was unemployed but currently caring for his children. He has a wife and two children, aged 11 and 13 years respectively. He told the Tribunal that he has been breeding original breeds of game fowl for 10 years and has also bred ducks, geese and pheasants. The applicant testified that his father was in the Army and he grew up in the country and consequently had a lot to do with pets and nature.
The applicant told the Tribunal that he is not selling game fowl yet and just sorting out the breeds takes years. The applicant testified that game fowl have been bred for centuries, but the breeders are "still learning now". He has 20 birds at the moment. The game fowl that he breeds are an edible bird and are good egg layers.
The applicant gave evidence that he decided to import the videotapes depicting cockfighting events in the Philippines because he could not get adequate material on gamefowl for breeding purposes. He explained that cockfighting was illegal in Australia and Australian breeders do not have the best birds. The applicant stated that the videos featured the best breeders from around the world and the best birds competing at derbies. The applicant explained that one was not able to see that quality of birds ever anywhere else. The applicant tendered to the Tribunal an American magazine entitled "The Gamecock" (Exhibit A3) and agreed that he could learn a lot from such a magazine but not as much as from videos depicting the gamefowl engaged in competition. The applicant explained to the Tribunal that the birds are not forced to fight during the derbies and the only reason a bird is held up when it can no longer stand is for gambling purposes. The applicant submitted that the use of steel spurs on the birds was less cruel as the fight was finished more quickly.
The applicant stated that he was importing the videotapes for his own personal use in order to educate himself as to the correct breeding characteristics of gamefowl – he would be able to learn types, colours, hocks, headshapes, heel, back shapes and length.
The applicant gave evidence that if the videotapes were released to him, he would keep them under lock and key and he would not want anyone else to see the videos because they were only for his own education. The applicant stated that he would view them only when no one else was around.
The applicant testified that he does not yet conduct group educational activities in relation to gamefowl. The applicant testified that breeding gamefowl could be considered to be cultural, historical and scientific.
mr desmond clark
Mr Clark gave evidence by telephone. Mr Clark is the Director of the Office of Film and Literature Classification and is also Director of the Classification Board, established under section 45 of the Classification (Publications, Films and Computer Games Act 1995 (The Classification Act). He referred to his written statement dated 24 August 2001 (Exhibit R3) in which he stated (inter alia):
"3. The Classification Board consists of a Director, Deputy Director, Senior Classifiers and other Members. All members of the Classification Board are appointed by the Governor-General. In appointing such members, regard is had to the desirability of ensuring that the membership of the Board is broadly representative of the Australian community. The appointment of members is dealt with in section 48 of the Classification Act.
4.The Classification Board classifies publications, films (including videotapes) and computer games. The OFLC provides administrative support to the Classification Board and is comprised of the staff listed in section 54 of the Classification Act and myself.
5.Pursuant to an administrative arrangement between the OFLC and the Australian Customs Service (ACS), the ACS is able to request advice from the OFLC where it is not able to reasonably ascertain whether an item contravenes Regulation 4A of the Customs (Prohibited Imports) Regulations (the Customs Regulations). Pursuant to that agreement, as a Director of the Classification Board, I am required to provide written advice to the ACS in response to any such requests.
6.A request from the ACS is usually received after the ACS has seized items in accordance with the Customs Act 1901 and/or other relevant legislation. If the item seized involves a publication, film or computer game, and the ACS is uncertain as to the appropriate classification of the item under Regulation 4A of the Customs Regulations, or a formal assessment is required for the purpose of a prosecution, then the ACS is able to refer the item to the OFLC (the referred item) and request an advice as to whether the item contravenes Regulation 4A(1)(a) of the Customs Regulations.
7.The referred item is then viewed by one or more Classification Board Member(s). In this case the videos were viewed by various Board Members.
8.Once viewed, the Member or Members then provide a report which comments on the content of the item and makes a recommendation as to whether the item falls within the criteria set out in Regulation 4A of the Customs Regulations.
9.The written recommendations prepared by the Classification Board Members are then provided to me. I prepare a letter of advice based on the Member's report or reports containing the recommendation of the OFLC to the ACS in relation to the items that the ACS has requested advice on. The letter of advice in this matter is labelled T13 in the T Documents. The OFLC's view in this matter, based on the advice from the Board was that each of the ten video tapes entitled 'Blockbuster II The Sequel' (numbered 1 to 10) (the tapes) contained depictions of cruelty.
10.It is important to stress that the advice provided by the OFLC is a recommendation only. It is the responsibility of the ACS to determine whether the item constitutes a prohibited import within the meaning of the Customs Act 1901. It is my understanding that following receipt of the advice of the OFLC the ACS informed Mr Creek that the tapes were assessed as prohibited imports within Regulation 4A(1A)(a) of the Customs Regulations and therefore was subject to seizure under the Customs Act 1901.
11.I received a letter dated 25 August 2000 from Mr Creek requesting permission to import the videotapes (T15) pursuant to Regulation 4A of the Customs Regulations.
12.As Director of the Classification Board I am a person authorised by the Attorney-General for the purposes of sub-regulation 4A(2) of the Customs Regulations. In the exercise of the discretion conferred by that provision, I decided to refuse Mr Creek's request for permission to import the tapes. In making this decision I had regard to the criteria set out in Regulation 4A of the Customs Regulations. I also considered the representations made by Mr Creek in his letters received by the OFLC on 25 May 1998 (T2) and 25 August 2000 (T15) as well as the reports of each of the Classification Board Members in relation to each of the individual tapes (T3-T12).
13.Mr Creek asserted in his written representations that he required the videotapes as educational material to assist him to identify the desired characteristics of game fowls which he breeds as a hobby. Further, Mr Creek's written representations indicated that he does not fight game fowls and he understands community attitudes towards such an activity. Mr Creek also made written representations concerning his reputation generally.
14.Other than the written representations of Mr Creek, no other supporting documents were provided to OFLC as to the reputation of Mr Creek as a breeder of game fowls. Nor was any documentation provided to suggest that Mr Creek conducts activities of an educational nature. My interpretation of Regulation 4A(2AA) of the Customs Regulations is that in order to justify permission being granted, Mr Creek would need to demonstrate that he conducts activities of an artistic or educational, cultural or scientific nature and that the tapes would assist him in that endeavour. I was not satisfied on the basis of the material put to me by Mr Creek that he conducted or was proposing to conduct any such endeavour or that the tapes would assist him in any such endeavour. I also formed the opinion that there were other means available to Mr Creek to become better informed about game fowls.
15.I was accordingly not satisfied that the criteria in Regulation 4A(2AA)(b) and (c) had been addressed in a manner which justified permission being granted. Accordingly, given the nature and subject matter of the depictions contained in each of the tapes, I reached the conclusion that it was inappropriate to grant permission to import the tapes for the purposes indicated by Mr Creek, even subject to strict conditions.
16.I therefore refused Mr Creek's request for permission to import these tapes."
In support of his written statement, Mr Clark told the Tribunal that the tapes were viewed by members of the Board who provided reports to him and that led to his recommendation that the videotapes were prohibited imports in accordance with sub-regulation 4A(1A)(a). Mr Clark testified during cross-examination that he did not personally view the videos but rather members of the Board viewed them and reported their opinions to him. Mr Clark stated that he relied upon the reports provided by the Board members and was confident in the conduct of the Board. When questioned by the applicant as to the knowledge of the Board members of gamefowl, Mr Clark testified that the Board members were appointed by the Governor-General to represent community standards and values. Mr Clark stated that there was a set of guidelines, in this case customer regulations, and the Board members were experts at interpreting guidelines and regulations.
In relation to the various considerations set out in sub-regulation 4A(2AA), Mr Clark gave the following evidence:

Mr Clark told the Tribunal that the applicant made representations as to his reputation generally that were not substantiated.
Mr Clark testified that it would be impossible to impose strict conditions on release of the videotapes – if the videotapes were in the possession of the applicant, he would be free to show them as he chose. Mr Clark told the Tribunal that he had granted permission for the importation of prohibited goods under regulation 4A(2AA) once in relation to a publication for police officers, when guarantees could be given as to restrictions on access and where housed, and once in relation to a videotape to be used in a court proceeding – the lawyers for the defence were to hold it and the tape was produced for destruction at the end.
Mr Clark was referred to his statement (Exhibit R3) where he stated (at page 4, paragraph 14): "I also formed the opinion that there were other means available to Mr Creek to become better informed about game fowls." Mr Clark explained that in relation to breeding, there are always manuals as well as various clubs and organisations which breed animals and they are the experts. Mr Clark said that in expressing this opinion, he was making that assumption based on the fact that he had pets and knew how to go about getting information about them.
When told by the Tribunal that the applicant's evidence was that there were very few books, manuals, magazines, etc to enable the applicant to better inform himself, Mr Clark testified that even if there was limited information available, it would not change his opinion as the videos still contained such depictions of cruelty that they would be offensive to a reasonable adult.
Mr Clark stated that he believed that the difference between violent movies and the cockfighting videos was that violent movies contain depictions of violence rather than actual cruelty. Mr Clark also stated that movies containing high level violence are also subject to various restrictions and are not available to children.

submissions of the respondent

Ms Bean submitted on behalf of the respondent that the OFLC concluded that the videos contained depictions of cruelty to animals and provided a recommendation to Customs and the videotapes became prohibited imports in accordance with Regulation 4A(1A)(a). Ms Bean submitted that the issue of whether or not the videotapes were prohibited imports had already been determined and it was not an issue before the Tribunal.
Ms Bean submitted that it was a two step process. First, there is the declaration that certain goods are prohibited imports and second, the Attorney-General can grant permission to a person to obtain the prohibited imports. Ms Bean submitted that the Tribunal only had jurisdiction in relation to the issue of permission and not the original decision to declare the goods prohibited imports.
In relation to sub-regulation 4A(2AA)(a), namely the purposes for which the goods are to be imported, Ms Bean submitted that the applicant breeds gamefowl and wants to view the videos to compare his own birds to the birds in the videos and this would assist him and give him information as he would observe their behaviour and characteristics. Ms Bean submitted that the applicant wanted to use the videos for his own personal benefit and does not intend to distribute the videos.
Ms Bean submitted that there was no compelling need for the applicant to view the videos and that there were other ways that the applicant could educate himself on the subject. Ms Bean submitted that any limited personal benefit that the applicant may gain was outweighed by the fact that the videotapes in question are prohibited imports, depicting cruelty to animals.
Ms Bean further submitted that the Tribunal could not be satisfied that the threshold requirement, namely that found in sub-regulation 4A(2AA)(b) had been met. Ms Bean submitted that the fundamental point in the legislative scheme was the requirement that someone seeking to import goods must show that they conduct activities of an artistic, educational, cultural or scientific nature to which the goods relate. It was submitted that although the Regulations do not state that this is the threshold requirement, it is implied that such a wider community benefit must be present.
Ms Bean submitted that the Tribunal could not be satisfied that the applicant was a person who was conducting activities of an artistic, educational, cultural or scientific nature. Ms Bean submitted that the applicant had conceded that he was "not yet" engaged in educational activities involving others. Ms Bean submitted that the applicant was only at this stage seeking to educate himself. Ms Bean submitted that in this context "educational" means educating others, not informing oneself. It was submitted that the purpose of the Regulation is directed to community benefit or public interest and that an exception will be made to allow in prohibited goods in a particular case. Ms Bean put forward the example of goods used by an educational institution.
In relation to the applicant's claim that his activities involving the breeding of gamefowl constituted "scientific" activities. Ms Bean submitted that this involved a very broad construction of the term "scientific" and that breeding was not embraced by the work "scientific" having regard to the meaning and purpose of the Regulations.
Ms Bean submitted that the Regulation makes it clear that there must be some wider benefit to the community in its provisions dealing with the purpose for which the goods are to be imported and the extent to which the person conducts activities of an educational, artistic, cultural or scientific nature.
Ms Bean further submitted that even if the Tribunal disagreed with the above, then in consideration of the other requirements of sub-regulation 4A(2AA), the Tribunal could not be satisfied that the applicant met any of the other requirements. Ms Bean submitted that the next two sub-paragraphs of sub-regulation 4A(2AA), namely (c) and (d) were extra safeguards to ensure the goods were only to be used for their designated purpose.
In relation to reputation as set out in sub-regulation 4A(2AA)(c), Ms Bean submitted that this was to ensure that even if activities of an educational nature could be identified, the decision-maker was still to ensure that the applicant has a good reputation as an extra safeguard. Ms Bean submitted that the onus was on the applicant to show that he had a good reputation and the Tribunal could make no such assumption. Ms Bean submitted that the only evidence before the Tribunal as to the applicant's reputation was a statement from the Deputy Principal of Willunga Primary School in which he stated that he was a "most obliging and supportive parent of the school" (Exhibit A2). Ms Bean submitted that such evidence of his reputation was not enough and in consideration of the legislative intent behind the Regulations, the Tribunal needed to have before it evidence of the applicant's reputation such that it would be satisfied that if the person conducts certain activities, then he would use the material responsibly and could be trusted to comply with any conditions imposed.
Ms Bean submitted that Mr Clark had noted that he had no information as to the applicant's reputation but did not base his decision on that point. Ms Bean submitted that the reference from Willunga Primary School did not state that the applicant was of good character or reputation. In any event, it was submitted that there was a lack of evidence about the applicant's reputation.
In relation to sub-regulation 4A(2AA)(d), namely, the ability of the person to meet conditions that may be imposed under subregulation (3) in relation to the goods, Ms Bean submitted that there was no guarantee that a person living in a private dwelling could ensure that no one else will see the videotapes. It was submitted that Mr Clark had given evidence that he had only released material to the police and lawyers in a trial, both of which have strict procedures and practices in place restricting access to goods and other material the subject of court proceedings. It was submitted that whilst the Tribunal has evidence of the applicant's intentions, there is no guarantee that the videotapes will not be accessed by other persons.
In conclusion, Ms Bean submitted that the intention of the Regulations indicated that permission to import prohibited goods would only be granted in limited circumstances and most importantly only when the person seeking permission conducts activities of an artistic or educational, or of a cultural or scientific, nature to which the goods relate. It was submitted that the above categories of activity constituted the only justification for material otherwise that would not be released to the community. Ms Bean submitted that in the applicant's case the benefit of importing the videotapes was narrow, attaching only to the applicant and not to the community. Ms Bean also submitted that an applicant must demonstrate a benefit to the wider community before the discretion could be exercised in their favour.
submissions of the applicant
In reply to the submissions of the respondent, the applicant submitted that in so far as the security of the tapes was concerned, he could only give his personal guarantee that the videotapes would not be shown to other people. The applicant submitted by analogy that guns were allowed to be kept in the community and the police just hoped that people would do the right thing.
In relation to his reputation, the applicant submitted that he coached "kids" in the local football competitions and was very community spirited.
The applicant submitted that he wants videotapes for his own personal learning and has been involved in breeding gamefowl as a hobby as he has a back disorder. The applicant stated that breeding gamefowl was a hobby generating a lot of thought and gave him a sense of well-being, in the sense that he was attempting to breed animals back to their original stock.
The applicant submitted that the respondent's views about the content of the videotapes were based upon the assumption that the videos depicted cruelty. The applicant submitted that this was just an assumption and the respondent did not know for a fact that what was occurring was cruel.
The applicant submitted that the videotapes should be available to educate him and the education might pay off in the future.
discussion and findings
The Tribunal would indicate at the outset that it has given careful consideration to the whole of the evidence, including the various oral submissions made by the parties.
The Tribunal is mindful that its jurisdiction is limited to review of the decision of the Attorney-General, or a person authorised by him, to give permission for an import of otherwise prohibited goods. Sub-regulation 4A(4) allows an appeal to the Tribunal for review of a decision of the Attorney-General which either refuses to grant permission or grants permission subject to conditions. The Regulations do not empower the Tribunal to review the decision to declare the videotapes to be prohibited goods: Moore and Attorney-General's Department (AAT 10017, 17 February 1995).
In other words, the Tribunal is not empowered to examine the issue of whether or not it was correct to classify the videotapes as goods which describe, depict, express or otherwise deal with matters of cruelty 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 imported. The Tribunal begins its review from the standpoint that the videotapes are prohibited imports and is limited to examining whether or not permission should still be granted to import them. It is important to emphasise this point because in his submissions the applicant presented many reasons why, in his opinion, the videotapes did not depict scenes of animal cruelty. Whilst the Tribunal might be sympathetic to the applicant's viewpoint, it cannot take his submissions into account on this point.
The Tribunal now turns to consider the issue before it. Sub-regulation 4A(2) states that the importation of goods to which this regulation applies is prohibited unless a permission, in writing, to import the goods has been granted by the Attorney-General or a person authorized by the Attorney-General for the purposes of this subregulation. Mr Clark, Director of the respondent, gave evidence that he is a person so authorised.
Sub-regulation 4A(4) states that an application may be made to this Tribunal for review of a decision of the Attorney-General under sub-regulation 4A(2) refusing to grant a permission or granting a permission subject to conditions by the person to whom the permission was granted subject to conditions. In this case, the applicant's application for permission was refused (T15/28).
Sub-regulation 4A(2AA) lists the considerations to which the Attorney-General or the person authorised by the Attorney-General and the Tribunal upon review is to have regard when considering whether to grant a permission under sub-regulation (2). The considerations are as follows:
"…
(a) the purposes for which the goods are to be imported; and
(b)the extent to which the person to whom any permission to import the goods would be granted conducts activities of an artistic or educational, or of a cultural or scientific, nature to which the goods relate; and
(c)the reputation of the person referred to in paragraph (b), both generally and in relation to an activity referred to in that paragraph; and
(d)the ability of that person to meet conditions that may be imposed under subregulation (3) in relation to the goods; and
(e)any other relevant matters."
The Tribunal is mindful that in considering whether to grant permission, it must have regard to all of the considerations. The Tribunal is of the opinion that the Tribunal must be satisfied as to each consideration before it can grant permission in relation to the videotapes. In relation to the considerations, Deputy President McDonald in Moore and Attorney-General's Department (AAT 10492, 25 October 1995) stated (at paragraph 10):
"10. The Tribunal is of the view that the factors set out in regulation 4A(2AA) are compendious and that in assessing the nominated factors and taking into account other factors which may be raised pursuant to regulation 4A(2AA)(e), a decision-maker may, depending on the nature of what is sought to be imported, attribute different weight to the nominated heads. Regulation 4A(2AA) is relatively open in its application by virtue of the scope arising in regulation 4A(2AA)(e). The use of the plural tense in sub-clause (a) ('the purposes') suggests that the Parliament contemplated that there may be more than one purpose for which permission is being sought. Sub-clause (b), however, suggests the type of activity that it is relevant for the decision-maker to consider.
…"
The Tribunal accepts this reasoning as a correct interpretation of the Regulations.
The Tribunal now considers each consideration in turn. The Tribunal first considers the purposes for which the goods are to be imported, in accordance with sub-regulation 4A(2AA)(a). The applicant told the Tribunal that he breeds gamefowl and wants to view the videotapes to compare his own birds with the gamefowl in the videotapes. The applicant stated that viewing the videotapes would assist him and give him information as to the behaviour and physical characteristics of the best gamefowl. The applicant testified that he had been attempting to sort out the breeds of gamefowl, a process that takes years. The applicant told the Tribunal that the videotapes featured the best breeders of gamefowl from around the world and the best birds competing at derbies and one was not able to see that quality of birds anywhere else. The applicant stated that he only wanted the videotapes for his own use and had no intention of distributing copies of the videotapes or showing them to anyone else – they were purely for his own personal education about gamefowl.
The Tribunal is of the opinion that the applicant's purpose for seeking permission to import the videotapes is not one contemplated by the Regulations. The applicant states that he wants the videotapes for his own personal education. The Tribunal accepts the submissions of the respondent that the purpose behind the Regulations is that of the public interest and that there must be some wider benefit to the community before permission is granted to import goods which have been declared to be prohibited. The Tribunal is of the opinion that self-education does not provide a justification for the release of prohibited goods to a person. This would involve too wide a justification for release, and almost any goods could be allowed in. This was clearly not the intent of Parliament. An example of an acceptable purpose for importing the videotapes would be, for example, as cockfighting is illegal in Australia, allowing the videotapes to be viewed during a police-training course to assist officers in learning about the nature of such illegal activities.
The Tribunal now turns to the second consideration, namely, the extent to which the person to whom any permission to import the goods would be granted conducts activities of an artistic or educational, or of a cultural or scientific, nature to which the goods relate.
In relation to whether or not the applicant conducts activities of an educational nature to which the goods relate, the applicant gave evidence that he was yet to conduct any sort of group educational activities in relation to gamefowl, he was not yet selling gamefowl and has 20 birds at the moment. The applicant submitted that he was seeking to educate himself by comparing his own birds with the birds engaged in competition in the videotapes.
The Tribunal is in agreement with the submissions of the respondent that in order for an activity to satisfy one of the requirements of sub-regulation 4A(2AA)(b), the activity must have a community or public interest focus. Therefore, when one considers whether or not a person is engaging in an artistic, educational, cultural or scientific activity to which the prohibited goods relate, it is not enough to assert that one is engaging in one's own private activities. As stated above in relation to sub-regulation 4A(2AA)(a), to allow the activity to be one that one conducts on one's own would encompass too broad a range of activities which could qualify. A person could put forward an argument that they required a whole range of goods which have been declared to be prohibited imports in order to educate him or herself, or to conduct one's own scientific investigations. This was clearly not the intention of Parliament in creating the Regulations. For this reason, the Tribunal is of the opinion that it is not sufficient for the applicant to be engaged in self-education or his own informal "scientific" activity, namely, gamefowl breeding. Permissible activities would be, for example, educational activities conducted by an educational institution or scientific activities carried out by an approved research facility which were of some benefit to the community.
In addition, it is necessary to emphasise that the test in sub-regulation 4A(2AA)(b) is the extent to which the person conducts activities to which the goods relate. Upon the Tribunal viewing one of the videotapes provided to it by the respondent (Exhibit R4), the Tribunal has formed the opinion that such a videotape depicting cockfighting would be of little educational or scientific value to the applicant in so far as breeding is concerned and there are other more relevant ways that the applicant could learn about gamefowl breeding, for example, breeders' associations and magazines like the one the applicant provided to the Tribunal (Exhibit A3).
The Tribunal is of the opinion that the artistic and cultural activity categories are not relevant in this case.
In relation to the third consideration, namely, the reputation of the person referred to in paragraph (b), both generally and in relation to an activity referred to in that paragraph, the Tribunal is mindful that it has very little evidence before it in relation to the reputation of the applicant. In relation to the applicant's reputation generally, the Tribunal has before it the letter dated 19 April 1999 from the Deputy Principal, Mr Keith Kuhlmann, of Willunga Primary School (Exhibit A2). In this letter, the Deputy Principal states (inter alia):
"…
David Creek, as a parent of the school has been known to me for several years. Over the last two years in particular I have got to know David well due to his voluntary assistance on several grounds development projects. His skills, knowledge and experience with paving were invaluable in achieving our goals. David's willingness to give his time to suit the school was excellent and he established a good working relationship with myself, and our groundsperson.
His friendly, good-natured attitude was well received by other parent helpers and inquisitive children.
In conclusion I would describe David as a most obliging and supportive parent of the school.
…"
Whilst this letter provides some evidence of the applicant's good reputation generally in the community, the Tribunal has nothing before it relating to the applicant's reputation in relation to his breeding of gamefowl. The second part of sub-regulation 4A(2AA)(c) requires the Tribunal to consider the applicant's reputation in relation to an activity referred to in paragraph 4A(2AA)(b) to which the goods relate. Therefore, the Tribunal cannot draw a negative or a positive inference about the applicant's reputation in relation to gamefowl breeding.
The Tribunal now turns to consider the fourth consideration, namely, the ability of that person to meet conditions that may be imposed under subregulation (3) in relation to the goods. In his oral evidence before the Tribunal, the applicant undertook to keep the videotapes under lock and key and he would view them only when no one else was around. The applicant emphasised that the videotapes were intended only for his personal use, for his own education about the breeding characteristics of gamefowl and that he had no intention of showing the videos to any other person. The Tribunal is also mindful of the submissions of the respondent, that there was no guarantee that a person living in a private dwelling could ensure that no one else would see the tapes and that on previous occasions, Mr Clark had been very restrictive as to whom he would release material.

In relation to the fifth consideration, namely, any other relevant matters, the Tribunal is not aware of any other relevant matters in relation to this case.
Bearing in mind all of the above considerations and in particular the purpose for which the goods are to be imported and the extent to which the person to whom any permission to import the goods would be granted conducts activities of an artistic, educational, cultural or scientific nature to which the goods relate, the Tribunal finds that on balance, this is not a situation where Parliament intended for permission to be granted. Bearing in mind the fact that the videotapes have already been declared to be prohibited imports in accordance with sub-regulation 4A(1A)(a), the Tribunal is in agreement with the respondent that permission should only be granted when there is some community benefit or it is in the public interest to allow in the prohibited imports. In this case, it appears that there is only the personal benefit to be gained by the applicant through his own education about the physical characteristics of gamefowl.
The Tribunal is of the opinion that this is not a situation that Parliament intended to fall within the ambit of regulation 4A(2AA) and that therefore permission to import the prohibited goods should not be granted pursuant to regulation 4A(2).
decision
For the reasons given, the decision under review is affirmed.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         .........................(Signed).........................
  Barbara Armstrong, Associate
Date of Hearing   6 September 2001
Date of Decision   3 December 2001
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent    Ms K Bean
Solicitor for the Respondent    Australian Government Solicitor

[2001] AATA 987

3 December 2001

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Judicial Review

Statutory Interpretation

Legitimate Expectation