Fortbacon P/L v Dickie, J.J

Re: FORTBACON PTY LIMITED
And: JOHN JOSEPH DICKIE
No. ACT G33 of 1991
FED No. 458
Administrative Law
103 ALR 456
30 FCR 531

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Administrative Law - Judicial review - Applications for classification of video tapes - Video tapes having more than one title recorded thereon - Applicant's intention to market titles individually - Decision by Chief Censor that application be not further considered - Whether decision within the powers of the Chief Censor.

Administrative Decisions (Judicial Review) Act 1977 (Cth), s.5

Customs (Cinematograph Films) Regulations (Cth), regs 2A, 5, 39D

Classification of Publications Ordinance 1983 (A.C.T.), ss 3(1), 4(a), 23, 25, 34, 35

Publications Control Act 1989 (A.C.T.)

HEARING

CANBERRA

#DATE 9:8:1991

Counsel for the applicant : Mr P. Howard

Solicitors for the applicant : Creedon Hetherington

Counsel for the respondent : Mr A. Robertson

Solicitor for the respondent : Australian Government Solicitor

ORDER

The decision of the respondent made on or about 26 June 1991 that further consideration was not to be given to the applications dated 24 and 25 June 1991 made by the applicant to the Censorship Board under s.23 of the Classification of Publications Ordinance 1983 (A.C.T.) for the classification of certain video tapes be set aside.

The said applications be considered according to law.

The respondent pay the applicant's costs of the application.

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

JUDGE1

Fortbacon Pty Limited ("the applicant") has applied to the Court for an order of review under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act") in respect of a decision identified in the amended application filed on behalf of the applicant as a decision made by John Joseph Dickie ("the respondent") on 26 June 1991 to refuse to classify certain video cassettes. The application, which was filed on 2 July 1991, also named the "Office of Film and Literature Classification" as a respondent. On the hearing of the application, however, the applicant agreed that, as the respondent so named is not a body corporate or otherwise a legal person, the application should be appropriately amended so that John Joseph Dickie is the only respondent to the application.

The applicant began trading on 1 February 1991. Its business relevantly consists in the distribution, by sale or hire, of X-rated video cassettes. It is part of what is referred to in the affidavit, sworn on 23 July 1991, of Gerald Arthur Hercus, a director of the applicant, as the "Adult Services Mail Order Industry". In the course of its business activities, the applicant purchases master video tapes which have been imported into Australia, including tapes from which visual images and sound can be produced which depict, express or otherwise deal with matters of sex in a manner that is likely to cause offence to a reasonable adult person and tapes which are unsuitable for viewing by a person under the age of 18 years. Each master video tape purchased contains one or more of what are referred to in the evidence as "titles". Each "title" consists of the visual images and sound which have been recorded so as to produce a product which may be marketed separately from any other "title" recorded on the same video tape. The applicant advertises the titles on the video tapes so purchased, such advertising being by means of brochures sent by mail to persons whose names and addresses have been placed on a mailing list as a result of requests for such listing. The applicant makes copies of the tapes containing those titles and distributes, by post or through a courier service, copies of the relevant tapes by way of sale or hire to members of the public who place an order with the applicant for those titles. In some cases, the video tapes distributed by the applicant are limited to one title: in other cases, the tape will be capable of producing the visual images of two or three titles. As Mr Hercus says in his affidavit (par.24):

"Fortbacon markets its videos as both singles, doubles and compilations and, depending on the marketability of the particular titles, in a number of these forms."

The respondent is the Chief Censor appointed pursuant to reg.5(3) of the Customs (Cinematograph Films) Regulations made under the Customs Act 1901 (Cth). Those regulations also provide for the establishment of a Censorship Board to consist of the Chief Censor, the Deputy Chief Censor, the Senior Censor and not more than 9 other members (reg.5(2)).
The Customs (Cinematograph Films) Regulations prohibit the importation of a film other than a film to which Part III of the regulations applies - a Part having no relevance for present purposes - unless the film complies with prescribed conditions and permission to import the film has been granted by the Chief Censor (regs 9 and 10B). The regulations also make provision for the registration of a film (regs 11, 14, 19, 20). A film is not to be registered if in the opinion of the Censorship Board, or a member of the Board, the film is blasphemous, indecent or obscene, is likely to be injurious to morality, or to encourage or incite crime, or depicts matter the exhibition of which is undesirable in the public interest (reg.13). Included amongst the conditions to which importation of a film is subject are conditions that the film will not be exhibited in a form other than that in which the film is registered and that the film will not be exhibited under a title other than that under which it is registered (reg.10). Permission to import a film may also be subject to a condition or requirement with respect to the possession, control, exhibition, use, disposal or exportation from Australia of the film (reg.10B(2)(b)).
The powers and functions conferred on the Censorship Board under the regulations may be exercised or performed by any two or more members of the Board (reg.8(1)). The Chief Censor is responsible for ensuring the orderly and expeditious discharge of the business of the Censorship Board and may give directions as to the arrangement of the business of the Board and the constitution of the Board for the purpose of dealing with matters under the regulations (reg.8(2)).
The expression "film" is defined in reg.4(1) to mean a cinematograph film, a video tape or video disc, and to include a positive or negative of a cinematograph film. Regulation 2A provides, however, that the regulations, other than reg.39D, apply to and in relation to a film that is imported for public exhibition. The expression "public exhibition" is defined in reg.4(1) to mean, in relation to a film, the exhibition of the film to members of the public in a place, whether enclosed, partly enclosed or unenclosed, and whether admission to the exhibition of the film -

(a) is open to all members of the public or is restricted to persons who are members of a club or who possess any other qualifications; and

(b) is or is not procured by the payment of money or on any other condition.

Regulation 39D(1) provides, inter alia, that, in addition to the powers and functions conferred on the Censorship Board and a Censor by the regulations, the Censorship Board and a Censor may, in relation to the censorship and classification of films, exercise such powers, and perform such functions -

(a) as are conferred on the Censorship Board or a Censor respectively -

(i) by any arrangement made, or agreement entered into, under a law of a State; or

(ii) by a law of the Australian Capital Territory; and

(b) under a law of a Territory other than the Australian Capital Territory as the Attorney-General directs.

"Censor" includes the Chief Censor (reg.4(1)).

The Classification of Publications Ordinance 1983 (A.C.T.) makes provision, in Division 2 of Part III, for the classification of films, "film" being defined in s.3(1) to include a cinematograph film, a slide, video tape and video disc and any other form of recording from which a visual image can be produced. The Ordinance does not, however, apply (see s.4(a)) to a film that is registered under the Customs (Cinematograph Films) Regulations made and in force from time to time under the Customs Act 1901 (Cth).
Section 23 provides:

"(1) An application for the classification of a film may be made to the Censorship Board by any person.

(2) An application for the classification of a film shall be in accordance with a form approved by the Chief Censor and shall be lodged with a Censor together with the determined fee, a synopsis of the story depicted by the film and a copy of any advertising matter relating to the film.

(3) The Censorship Board shall not accept an application for the classification of a film unless an application is made to the Board for the classification of the film under the law in each State and the Northern Territory corresponding to this Ordinance."

The expression "Censorship Board" means the Censorship Board established under the Customs (Cinematograph Films) Regulations. "Chief Censor" means the person appointed to be the Chief Censor under those regulations. "Censor" means the Chief Censor, the Deputy Chief Censor, a member of the Censorship Board or a Deputy Censor. The expression "advertising matter" means, in relation to a film, any written or pictorial matter contained or displayed in or on any container or wrapping where that container or wrapping is used to enclose the film and the film, so enclosed, is intended to be made available for exhibition, display, sale, letting on hire or distribution to the public (see s.3(1)).

The Chief Censor may require a film that is the subject of an application for classification to be screened, such screening to take place before the Censorship Board, a member of the Board or a Deputy Censor (s.24). Section 25 provides:

"(1) Where the Censorship Board decides that a film -

(a) is not an objectionable publication; and

(b) is not unsuitable for viewing by a minor, the Board shall approve the classification of the film -

(c) as a 'G' film, where it is of the opinion that the film is suitable for general exhibition;

(d) as a 'PG' film, where it is of the opinion that the film should only be viewed by a person under the age of 15 years with the guidance of a parent or guardian of that person; or

(e) as an 'M' film, where it is of the opinion that the film cannot be recommended for viewing by persons under the age of 15 years.

(2) Subject to this section, where the Censorship Board decides that a film -

(a) depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in a manner that is likely to cause offence to a reasonable adult person; or

(b) is unsuitable for viewing by a minor, the Board shall approve the classification of the film as an 'R' film or an 'X' film.

(3) The Censorship Board shall refuse to approve the classification of a film where the Board is satisfied that the film 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) The Censorship Board shall refuse to approve the classification of a film that -

(a) depicts 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 as reasonable adult person; or

(b) promotes, incites or instructs in matters of crime or violence.

(5) Where a video tape or a video disc includes a trailer advertising an unclassified film, the Censorship Board shall refuse to approve the classification of the video tape or video disc.

(6) Where a video tape or a video disc includes a trailer advertising a classified film, the Censorship Board shall not approve the classification of the video tape or video disc -

(a) as a 'G' film if the advertised film is classified as a 'PG', 'M', 'R' or 'X' film;

(b) as a 'PG' film if the advertised film is classified as an 'M', 'R' or 'X' film;

(c) as an 'M' film if the advertised film is classified as an 'R' or 'X' film;

(d) as an 'R' film if the advertised film is classified as an 'X' film; or

(e) as an 'X' film if the advertised film is classified as a 'G', 'PG', 'M' or 'R' film."

The expression "objectionable publication" is defined in s.3(1) to mean a publication, or advertising matter in relation to a film, that -

"(a) describes, depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in a manner that is likely to cause offence to a reasonable adult person;

(b) depicts in 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

(c) promotes, incites or instructs in matters of crime or violence."

"Publication" includes a film and written or pictorial matter that is made available, or is intended to be made available, for exhibition, display, sale, letting on hire or distribution to the public, but does not include advertising matter in relation to a film. "Minor" means a person under the age of 18 years.

Sections 26 and 27 of the Ordinance provide:

"26.(1) Where a film is screened before a member of the Censorship Board or a Deputy Censor, the member or Deputy Censor shall -

(a) if he or she is of the opinion that the film is a film of the kind referred to in sub-section 25(3) or (4), refer the application for classification to the Chief Censor; and

(b) in any other case, approve the classification of the film -

(i) as a 'G' film, where he or she is of the opinion that the film is a film of the kind referred to in paragraph 25(1)(c);

(ii) as a 'PG' film, where he or she is of the opinion that the film is a film of the kind referred to in paragraph 25(1)(d);

(iii) as an 'M' film, where he or she is of the opinion that the film is a film of the kind referred to in paragraph 25(1)(e); or

(iv) as an 'R' film or an 'X' film, where he or she is of the opinion that the film is a film of the kind referred to in sub-section 25(2), or refer the application for classification to the Chief Censor.

(2) Where a member of the Censorship Board or a Deputy Censor refers an application for classification to the Chief Censor under sub-section (1), the Chief Censor shall cause the film to be screened before the Board.

27. Where the Censorship Board, a member of that Board or a Deputy Censor has approved the classification of a film under this Division, the Chief Censor shall cause the film to be classified accordingly."

Section 28AA of the Ordinance provides:

"(1) Where a decision is made approving, or refusing to approve -

(a) the classification of a film; or

(b) advertising matter in relation to a film; the Chief Censor shall cause a written notice of the decision to be given to the applicant for the approval.

(2) Where the classification of a film is approved, the notice shall include a description of the markings determined under subsection 35(5) in relation to the classification given to that film.

(3) A decision referred to in paragraph (1)(a) or (b) takes effect on the date on which notice of the decision is given."

Provision is made in ss.30-32 for the review by the Film and Literature Board of Review established under the Customs (Cinematograph Films) Regulations of a decision approving, or refusing to approve, the classification of a film.

Criteria for classification are prescribed in s.34. That section provides:

"(1) A prescribed authority shall, in considering whether a publication is an objectionable publication, or is suitable or unsuitable for perusal or viewing by a minor, have regard to the standards of morality, decency and propriety generally accepted by reasonable adult persons.

(2) A prescribed authority shall, in performing the authority's functions under this Ordinance, give effect, as far as possible, to the following principles:

(a) that adult persons are entitled to read and view what they wish; and

(b) that all persons are entitled to protection from exposure to unsolicited material that they find offensive.

(3) A prescribed authority shall, in deciding whether or not a publication is an objectionable publication, or is suitable or unsuitable for perusal or viewing by a minor, have regard to any literary, artistic or educational merit it may possess and to the general character of the publication, including whether it is of a medical, legal or scientific character.

(4) A prescribed authority shall, in deciding what classification (if any) should be given to a publication other than advertising matter in relation to a film, have regard to -

(a) the persons or class of persons to or amongst whom it is published or is intended or likely to be published; and

(b) the conditions (if any) subject to which it should be published.

(5) In this section -

'prescribed authority' means -

(a) a classification officer;

(b) the Review Board;

(c) the Censorship Board;

(d) a member of the Censorship Board; or

(e) a Deputy Censor;

'publication' includes advertising matter in relation to a film."

Sub-sections 35(3) and (4) of the Ordinance relevantly provide:

"(3) The following conditions apply in relation to a publication that is classified ... as an 'X' film:

(a) the publication shall not be sold, let on hire or delivered to a minor (other than by a parent or guardian of that minor);

(b) ...

(c) the publication shall not be sold, let on hire or exhibited, displayed or delivered for or on sale or hire unless the publication bears the prescribed markings or determined markings as the case requires;

(d) the publication shall not be delivered to a person who has not made a direct request for the publication;

(e) the publication shall not be delivered to a person unless it is contained in a package made of plain opaque material.

(4) It is a condition in relation to a classified video tape or video disc that it shall not be sold, let on hire, exhibited or displayed for sale or hire in a public place or exhibited or displayed in a public place if, after classification, it has been edited to include a trailer advertising another film, unless -

(a) in the case of a video tape, or a video disc, classified as a 'G' film - the advertised film is classified as a 'G' film;

(b) in the case of a video tape, or a video disc, classified as a 'PG' film - the advertised film is classified as a 'G' or 'PG' film;

(c) in the case of a video tape, or a video disc, classified as an 'M' film - the advertised film is classified as a 'G', 'PG' or 'M' film;

(d) in the case of a video tape, or a video disc, classified as an 'R' film - the advertised film is classified as a 'G', 'PG', 'M' or 'R' film; or

(e) in the case of a video tape, or a video disc, classified as an 'X' film - the advertised film is classified as an 'X' film."

The Publications Control Act 1989 (A.C.T.) proscribes certain conduct, including that mentioned below, which is made punishable as a criminal offence. A person is not to advertise, sell, let on hire or distribute an unclassified video tape that describes, depicts, expresses or otherwise deals with matters of sex in a manner that is likely to cause offence to a reasonable adult person (s.5). A person is not to sell, let on hire or distribute a video tape that has not been classified or that has been refused classification (s.12). It is an offence to advertise an unclassified video (s.13). Section 18 provides that a person is not to sell, let on hire or distribute a video tape that is classified "X" unless the person to whom the video tape is sold, let on hire or distributed produces or provides a document that the publisher believes on reasonable grounds to be the person's driving licence, birth certificate or passport, or a copy thereof, and that document indicates that the person was born at least 18 years ago or the publisher otherwise has reasonable grounds for believing that that person is an adult. A classified video is not to be sold or let on hire, if, after classification, it has been edited to include a trailer advertising another video tape unless, in the case of a video tape classified "X", the advertised video tape is classified "X" (s.22).
In the course of his oral evidence, the respondent, when asked to explain the procedure followed with respect to the classification of video tapes, said:

"It comes in, it's logged in and what have you, it goes through the normal administrative process. And a file is made up and those files are then given to the Senior Censor roughly in order of the date the application comes in. The Senior Censor will have a look at the synopsis that is supplied, will decide on the appropriate size of the Board that will watch it. For one of these tapes it would normally be a Board of two. The Board of two censors would view the tape. They would write individual reports. If both Board members agree on the appropriate classification that would be normally ratified by the full Board. If they thought that the tape ought to be refused that would also be referred to the full Board and the full Board would make a decision before the tape is refused."

In answer to a further question, the respondent said:

"A classification certificate is issued detailing what the classification is and the certificate is forwarded on to the applicant."

In par.11 of his affidavit sworn on 23 July 1991, the respondent deposed that, as Chief Censor, he had since 24 June 1991 received from the applicant eight applications each requesting that a classification be assigned to a video tape. A copy of each application is annexed to the affidavit. Six of the applications are dated 24 June 1991, the remaining two being dated the following day. Each application takes the following form -

"I request that classification be assigned to the following video tape for sale or hire to persons on our mailing list, which has been assembled and compiled as a result of persons specifically requesting exposure to product available to 'Adults Only' and/or 'X' rated video.

Title: ........ ........ ... Format: ........ ........ ... Producer: ........ ........ ... Country of Origin: ........ ........ ... Running Time: ........ ........ ... Applicant: ........ ........ ... Address: ........ ........ ... I enclose a synopsis and certify that the above details are, to the best of my knowledge, correct. I agree to submit the video tape at our own risk and expense."

It is common ground that the applications so submitted are substantially in the form approved by the Chief Censor under s.23(2) of the Classification of Publications Ordinance. The form so approved is Attachment "B" to a leaflet circulated in the relevant industry in August 1990 by the Chief Censor. That leaflet contained the following as being the requirements which should be observed when submitting video tapes for examination by the Censorship Board -

"Documentation

Applications must be on applicants' letterheads (as per Attachment B) and accompanied on submission by:-

1. The relevant videotape

2. Adequate synopses

3. Fees in the sum of $280.00 per application. Condition of Videotapes

1. Rewound to the start

2. In the form in which they are to be distributed (i.e. without irrelevant commercials or other material)

3. Without transfer overlays or spaces for insertion of commercials

4. With clearly defined images and clearly audible soundtracks."

In cross-examination, the respondent agreed that it was not his intention, in prescribing the requirement that an applicant submit video tapes "in the form in which they are to be distributed" (see the second requirement under the sub-heading "Condition of Videotapes" above) to seek to find out how the videotapes were to be marketed.

Each of the eight applications relates to a video tape which is capable of producing the visual images and sound of more than one title. The titles shown on the applications are as follows:

"1 TEENIES EXTREM 33/ WELCOME ABOARD/ ZWANG DER LUST 2 PARTY BIZARR/ TEENIES EXTREM 14/ OLDIES BUT GOLDIES 3 SEVENTEEN'S SCHOOLGIRL 2/ LOVE GAME/ TEENAGE LESSONS 4 ORIENTAL NIGHT/ HOME BUSINESS/ MODERN LIFE 5 AQUAGINAS/ DESIREE - THE JOKER OF LOVE 6 TEENAGE LOVE/ CHANNEL 17 VOL 2/ ANAL TEENERS 7 POWER OF MY MASTER/ EVER BINDING LOVE 8 FIRST HAND EXPERIENCE/ MADAM TANYA'S PRIVATE CHAMBERS/ NATIONAL SERVICE"

The running time for the video tapes as shown on the application forms varies from approximately 105 minutes to 240 minutes. The running time for individual titles is not shown. It is evident from the applications that each of the video tapes has its origin in an overseas country. Six are shown as originating from Germany and two from the United States of America. The evidence does not disclose whether a synopsis of the story depicted by the video tape was enclosed with each application as required by s.23(2) of the Classification of Publications Ordinance.

On 21 June 1991, that is to say prior to the receipt of the applications the subject of the present proceeding, the respondent had written to the applicant in the following terms:

"I have been advised by Mr Marzic of this Office that your company has recently commenced making application for classification of compilations of two titles on one videocassette and then marketing the titles individually.

I draw to your attention that you are required to market your product in the form that it was submitted for classification. A departure from that practice has the effect of invalidating the classification assigned to the videocassette submitted for classification. It also avoids classification fees. I understand that during the period 30 April 1991 to 12 June 1991 your company has submitted through the Melbourne office thirty-three such 'compilation' tapes which now appear to be marketed as individual titles. This practice should cease immediately and you should make arrangements to correct the anomaly about the thirty-three compilation tapes. You should, if you wish to market them as compilations and individually, submit an application for each title. Or, if you do not wish to market them as compilations, you may request a credit for the thirty-three application fees tendered and we will consider processing sixty-six individual certificates for the cost of a further thirty-three application fees (33 x $280 = $9,240).

Please phone Mr Frank Marzic on (02) 581 7014 regarding this matter. A copy of this letter has been forwarded to Mr Bradshaw of the Northern Territory government and Mr Bardak of our Melbourne office."

The respondent replied by letter also dated 21 June 1991 reading as follows:

"I acknowledge receiving the facsimile transmission of your letter dated 21 June 1991 and must say how pleased I was to receive a direct communication from you - the first time I have ever communicated with you directly in the many years that I have been involved in the industry.

Before responding in detail to your letter let me say that your statement in paragraph one of your letter is only technically correct in that it refers to the entity to which the letter is addressed. I have in other entities (and others in other different entities) submitted material in a similar manner in the past -as was acknowledged by your Mr Frank Marzic in the lengthy telephone conversation which preceded the arrival of your correspondence.

I propose to respond in the maximum possible detail to afford you the opportunity to consider these matters with all possible knowledge of the facts, including, hopefully, an understanding of the position from the point of view of the operator in the market place. I am sure that you are already aware that I, and the entities which I have represented in the last few years, have not only attempted to comply with the letter of the law but that we have also at all times complied with the spirit of the law and, in fact pioneered many efforts to try to legitimise the industry within the system and the market place. Whilst it is likely that you do not have the knowledge of the market place that I, as a trader, do have - I am sure that it is true to say that you already know that a large amount of product is illegally distributed in Australia. We both know that the legitimate operators represent only approximately 50% of the total market and that there are more 'illegal' operators than there are legitimate operators. I stand ready to demonstrate the true position to you with statistics, brochures, names, addresses and mountains of knowledge of the industry and the market place and welcome a thorough review of the law and the 'system' which supports it.

Your direction in paragraph 2 is noted (in fact it seems to me to be the act of a policeman rather than the advice of an administrator) but challenged. It seems to me that the time you and your officers have spent on these matters challenging an operator who is clearly complying at least with the spirit of the law, would have been far more productive had it been spent advising the numerous 'illegal' operators of the requirements of the law. Similarly I say that your contention that I am evading classification fees is equally hypocritical - surely those (including many already well known to you or your officers) not paying at all are the people evading the payment of classification fees. It is correct to say that we have submitted many titles as 'compilations' over these last few months - in fact it is also true that we have many more already in progress. Because the validity of your direction is challenged, and because we simply cannot afford to survive as a legitimate operator in the present environment, we propose to continue to submit in this manner. Obviously under these circumstances I do not wish to negotiate the re-classification as suggested by you. I must also make the point at this stage that the system presently existing heavily favours the illegal operator - who is effectively not policed by any authority. Companies such as ours, and individuals such as I, which are trying to be legal and are paying fees (and very substantial other taxes) are the easy parties to contact and to administer and police - the previous attitude of your office in relation to policing ('not our role') assists the illegal operators to flourish and makes it ever increasingly more difficult to survive. I am therefore frankly pleased to note the apparent move in policy demonstrated by your letter. Please continue to assess the titles submitted in the normal manner and assign appropriate classifications. Perhaps it will ultimately be a matter for the Court to decide whether they are in fact classified in a manner which suits the manner in which they are being distributed - if that transpires then I predict with confidence that 'X' will become as well known in N.T. as the 'dingo' as it would be my obligation to demonstrate the impossibility of the situation and the system which would necessarily involve subpoenas to existing merchants (both legal and illegal), many officers from your office (both Sydney and Melbourne) various police from various states and many others. This would be a substantial case and obviously we would need to apply to Legal Aid for their assistance. (What a bonanza for Greyhound).

A copy of this letter is being supplied to George Bardak and also to Mr Bradshaw (who I assume to be a member of the staff of the N.T. Attorney General). Copies of both your letter and this response are also being supplied to N.T. Police and to my Solicitor. In closing I urge you to consider this matter very seriously and more broadly than at the time of preparing your letter - perhaps if the balance which presently favours the illegal operator can change, then we might be in a position to see the situation differently. P.S. A copy of this correspondence is also being supplied to The Law Reform Commission."

On 26 June 1991, the respondent addressed a further letter to the applicant. That letter read:

"I refer to my letter to you dated 21 June 1991 and your response of the same date.

The issue under consideration is the practice of making application for classification of compilations of two or more titles on one videocassette and then marketing the titles individually. As previously advised, this practice should cease immediately on the basis that the application is not '... in a form approved by the Chief Censor ...' (see section 23(2) of the ACT Classification of Publications Ordinance 1983 and section 27(3) of the Northern Territory Classification of Publications Act 1985). Also, as you are aware the abovementioned practice has the effect of invalidating the classification assigned to the videocassette submitted for classification and avoids the payment of classification fees.

Your response to me dated 21 June 1991 advises that you intended to continue with the practice. In the circumstances, I have directed that such applications are not to be accepted as they are not in a form approved by the Chief Censor. Further, any applications already received where the classification fee tendered has not been cashed will also be held pending resolution of this issue. You may retrieve such applications at your convenience.

Should you wish to discuss this matter you may telephone Mr Marzic on (02) 581 7014."

It is the latter letter which is said to evidence the decision the subject of the application for an order of review.

There was some debate during the hearing whether the decision the subject of the application for an order of review was made under the Customs (Cinematograph Films) Regulations or under the Classification of Publications Ordinance. I am satisfied that the respondent purported to act under the Ordinance. I am also satisfied that reg.2A of the Customs (Cinematograph Films) Regulations is to be read as providing that those regulations, other than reg.39D, have no application to or in relation to films, as defined, that are imported into Australia other than films so imported for public exhibition. It is common ground that the video tapes the subject of this application and video tapes of a similar kind are not intended for public exhibition.
It is also common ground that a decision under the Classification of Publications Ordinance is a decision to which the Judicial Review Act applies as the Ordinance remains an Ordinance of the Australian Capital Territory and has not become an ACT enactment within the meaning of that expression in s.3(1) of the Judicial Review Act (see Australian Capital Territory (Self-Government) Act 1988, s.34(4), (5) and (8) and Australian Capital Territory (Self-Government) Regulations, reg.4). It is not in dispute that the applicant answers the description of a person aggrieved by the decision the subject of the application for an order of review.
In par.6 of his affidavit sworn on 23 July 1991 the respondent said:

"My practice has been and is to refuse to classify video cassettes consisting of a compilation of two or more films on one video cassette where I have concluded that the Applicant for classification intends not to market the video cassette in the form submitted to me, including where the Applicant intends to market the films individually."

Although in the course of his cross-examination the respondent asserted that par.6 of his affidavit reflected the practice he had followed since taking up his appointment as Chief Censor on 1 February 1988, it became clear that he had not on any prior occasion directed that an application for the classification of a video tape consisting of more than one title be not considered for the reason that the applicant intended to market the individual titles separately. He gave the following evidence:

"Q. Now, can you tell the court how you go about ascertaining a party's intentions in respect of marketing? A. In this case?

Q. In this case and as your general practice is stated to be ? A. The stipulation from my Board which is contained in that information that goes out is to applicants that the film is to be distributed in the way in which it's submitted to us. If I have any indication, and it's not often that I get any indication, that the film which is being distributed is different from the way that we have classified it, I would then write to the people who made the application and draw their attention to it and ask them to submit again."

Later he said:

"Well, I'm saying that my practice is to accept the tape as it is submitted to me and to classify it as it's submitted. But on the basis that that's how it intends to be distributed. And I have not had drawn to my attention compilation tapes submitted to me which we have classified which have not been distributed in the form in which they left our office. That's what I'm saying. This is the first case that has been drawn to my attention of that situation."

Paragraphs 12 and 13 of the respondent's affidavit sworn on 23 July 1991 read:

"12. I have decided that, in relation to the eight compilation video cassettes referred to in the preceding paragraph hereof, the Applicant intends to sell or hire out the films individually and not in the form in which they have been submitted to me for classification. I have reached this conclusion on the basis of the correspondence, which forms annexures 'A' and 'B' hereto and by reason of the difference between the forms of the video cassettes referred to in paragraph 8 hereof and the marketing brochures at annexure 'F' hereof.

13. It is my view that there is no obligation imposed on me by the ACT Classification of Publications Ordinance of 1983 to classify films, with respect to which I have concluded that the Applicant for classification proposes not to publish them in the form in which they have been submitted for classification."

The reference in par.12 to annexures "A" and "B" is a reference to the two letters respectively dated 21 June 1991 the text of which is set out earlier in these reasons. Paragraph 8 of the affidavit had referred to the fact that, during the period 30 April 1991 to 12 June 1991, the applicant had submitted "33 compilation video cassettes, each containing two or more films". Annexure "F" consisted of two marketing brochures produced on behalf of the applicant. The respondent deposed (par.10) that "a number of the films advertised on those brochures as being available separately are films on the compilation tapes" referred to in paragraph 8 of the affidavit.

For the applicant it was submitted that the Classification of Publications Ordinance conferred no power on the respondent as Chief Censor to determine that a video tape in respect of which an application for the assignment of a classification had been made under that Ordinance, such application being in the form approved by the Chief Censor, should not be submitted for such classification to those charged under the Ordinance with responsibility for doing so. In the alternative, it was submitted that, even if such a power were conferred on the Chief Censor by the Ordinance, to take into account, in exercising the power, that the applicant intended, notwithstanding that the video tape comprised more than one title, to market the titles separately was to take into account an irrelevant consideration.
The letter dated 26 June 1991 addressed by the respondent to the applicant asserts that the source of the respondent's power to determine that the applications dated 24 and 25 June 1991 to which reference has already been made were not to be further considered was to be found in s.23(2) of the Ordinance. That assertion cannot be sustained. Counsel for the respondent frankly disclaimed any reliance on that provision on the basis that it is not open to question that the relevant applications were substantially in the form approved by the Chief Censor.
As I understand the case for the respondent, it is acknowledged that, in a case where what is submitted for classification is a compilation video tape on which is recorded more than one title, the application for classification will be allowed to proceed provided nothing is said to, or otherwise comes to the notice of, the Chief Censor or another member of the Censorship Board that suggests that the titles are to marketed as individual video cassettes. It is submitted, however, that if, in such a case, it comes to notice that the intention is to market the titles individually, the Chief Censor is entitled to require that each title be the subject of a separate application for classification and is further entitled to refuse to allow the application for classification of the compilation video tape to proceed.
Reference has been made to reg.8(2) of the Customs (Cinematograph Films) Regulations which confers certain responsibilities and powers upon the Chief Censor. Those responsibilities and powers are, however, conferred only for the purpose of dealing with matters under those regulations. I am of opinion, however, that similar responsibilities and powers must be taken to reside in the Chief Censor when dealing with matters under the Classification of Publications Ordinance even though that Ordinance is silent on the point. That the Chief Censor must have responsibilities and powers of that kind is, I think, implicit in the fact that he is both a member of the Censorship Board and its senior executive officer. It follows that he is entitled to take whatever steps are necessary to ensure that the only applications that are allowed to come before the Board are applications that comply with the requirements prescribed by or under the Ordinance and are accompanied by all the material necessary to enable proper consideration to be given to the classification of the video tape or tapes the subject of such applications. Although it is unnecessary to express a concluded view on the matter, the powers of the Chief Censor may well extend to declining to have an application for the classification of a video tape further considered if, for example, it is made clear to him that the application is of academic interest only because the applicant does not intend to market the tape or what is recorded on it or intends that, before marketing takes place, the tape is to be edited, by the addition or deletion of material, in a way that is not disclosed in the application.
It is, however, quite another thing to say that the Chief Censor may decline to permit an application for the classification of a video tape to be considered because it has happened to come to his notice that the various titles recorded on the tape are to be marketed separately, there being no suggestion that the part of the tape that records any particular title is to be edited, by the addition or deletion of material, before marketing takes place.
In my opinion, the respondent exceeded the powers conferred upon him by the Classification of Publications Ordinance in determining that the applications dated 24 and 25 June 1991 were not to be further considered. I shall proceed to explain my reasons for reaching that conclusion.
The Ordinance does not define the expression "video tape" by reference to the number of titles recorded on it. Indeed, it does not anywhere refer to the situation where a video tape submitted for classification has more than one title recorded on it. It does not, by any express provision, concern itself with the question whether the title or titles recorded on the video tape are to be marketed singly or in combination. By way of contrast, however, it makes express reference to the situation where the tape includes a trailer advertising a classified or unclassified film including a video tape (see s.25(5) and (6) and s.35(4)).
The only circumstances in which the Ordinance expressly provides for the non acceptance by the Censorship Board of an application for the classification of a video tape are those referred to in s.23. It is only in the circumstances set out in s.25 that the Board is expressly authorised to refuse to approve the classification of a video tape. The only specific references to the manner in which a video tape submitted for classification is to be marketed are to be found in ss.23(2) and 35(4) of the Ordinance. Section 23(2) requires that the application for classification be accompanied by any advertising matter, as defined, relating to the video tape. "Advertising matter" in this context is confined to any written or pictorial matter contained in or displayed in or on any container or wrapping where the container or wrapping is used to enclose the video tape and the video tape, so enclosed, is intended to be sold or let on hire (s.3(1)). Section 35(4) limits the extent to which a classified video tape may be edited, after classification, to include a trailer advertising another video tape.
A curious feature in the approach by the Censorship Board to the carrying out of the task assigned to it by the Classification of Publications Ordinance, is that, according to the respondent's oral evidence, it is the Board's practice, in the case of a video tape recording more than one title, to assign a single classification to the whole tape whether or not any of the titles, considered separately, would attract a different classification than that which would be attracted by any other title. The classification accorded in such a case is the more, or the most, restrictive of those that would be assigned to the titles if classified separately. Thus, a video tape containing one "X" rated title and two "R" rated titles would be classified as an "X" rated tape. Although, having regard to the nature of the material with which this proceeding is concerned, the possibility of such a compilation tape being marketed may be completely discounted, a person intent on purchasing or taking on hire "X" rated material who is supplied with a compilation video tape which has an "X" rating but which contains one or more titles that, considered separately, would not attract such a classification might well think that he had been misled or deceived. Similarly, in a case where one of the titles on a tape would be refused classification by reason of any of the provisions of s.25, the Board's practice is to refuse classification of the whole tape, not only of the objectionable title.
The effect of the view taken by the respondent is that, if an applicant submits for classification a video tape recording two titles and he intends to market the two titles on a single tape and also to market each title separately, three applications for classification are necessary each accompanied by the payment of the relevant fee. I find nothing in the language of the Ordinance that warrants the conclusion that that correctly describes its effect.
There is, however, a good deal to be said in favour of the view that the Ordinance was drafted on the assumption, for which there may have been adequate foundation at the time, that any video tape submitted for classification would be a video tape recording only one title. Whether that was the assumption or not, the subject matter dealt with by the Ordinance and the general policy which might be thought to underlie its provisions strongly suggest that the Ordinance should be construed so as to require the Censorship Board to determine, in relation to each of the titles recorded on a compilation video tape, the appropriate classification of that title or, if circumstances warrant, that the title be refused classification. That, however, is not a construction of the Ordinance for which the respondent contended.
There is nothing in the Ordinance, or, if it be material, in the leaflet issued by the Chief Censor in August 1990, that requires an applicant for the classification of a video tape recording more than one title to state the manner in which he intends that the titles be marketed. If the respondent's contention be correct, such information would be essential to the proper performance of the Board's functions and one would expect it to be a requirement that such information be provided. It cannot be a correct approach to the exercise of the important powers which the Ordinance confers on the Censorship Board that the question whether an application for the classification of a compilation video tape will be considered depends upon whether some information concerning the applicant's marketing intentions has fortuitously come to the notice of the Chief Censor or another member of the Board.
It should be noted, before parting with the matter, that the letters dated 21 and 26 June 1991 complain that the practice being followed by the applicant avoids the payment of classification fees. That was not a matter relied upon at the hearing. However, if the quantum of the fees payable under the Ordinance where a compilation video tape is the subject of an application for classification is, for administration purposes, a critical issue, that problem can be overcome by a suitable amending provision.
For the above reasons, I am of opinion that the decision of the respondent made on or about 26 June 1991 that further consideration was not to be given to the applications dated 24 and 25 June 1991 made by the applicant to the Censorship Board under s.23 of the Classification of Publications Ordinance for the classification of certain video tapes should be set aside and I so order. I further order that those applications be considered according to law. The respondent must pay the applicant's costs of the application.

[1991] FCA 458

09 AUGUST 1991