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Federal Court of Australia - Full Court |
Last Updated: 21 May 2008
FEDERAL COURT OF AUSTRALIA
Adultshop.Com Ltd v Members of the Classification Review Board [2008] FCAFC 79
MEDIA AND COMMUNICATIONS –
censorship – uniform classification scheme –
films – Classification Board –
statute prescribing matters
to be taken into account in classification – Classification Code
containing criteria for classification –
Guidelines to assist Board
in application of Code criteria – whether Guidelines inconsistent
with statute –
expert evidence – relevance to
classification process
Classification (Publications, Films and
Computer Games) Act 1995 (Cth), ss 6, 9, 12
Guidelines for the
Classification of Films and Computer Games 2005
R v Hunt; Ex parte Sean Investments Pty
Ltd [1979] HCA 32; (1979) 25 ALR 497 cited
Davis v Minister for Immigration and
Multicultural and Indigenous Affairs [2004] FCA 686 cited
ADULTSHOP.COM
LIMITED (ACN 009 147 924) v MEMBERS OF THE CLASSIFICATION REVIEW BOARD and
MINISTER FOR HOME AFFAIRS
WAD 250 OF 2007
SUNDBERG,
EMMETT AND SIOPIS JJ
21 MAY 2008
PERTH
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AND:
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THE COURT ORDERS THAT:
2. The appellant pay the respondents’ costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the
Federal Court Rules.
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ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF
AUSTRALIA
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BETWEEN:
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ADULTSHOP.COM LIMITED (ACN 009 147 924)
Appellant |
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AND:
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MEMBERS OF THE CLASSIFICATION REVIEW BOARD
First Respondent MINISTER FOR HOME AFFAIRS Second Respondent |
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JUDGES:
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SUNDBERG, EMMETT AND SIOPIS JJ
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DATE:
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21 MAY 2008
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PLACE:
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PERTH
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REASONS FOR JUDGMENT
Background
1 The appellant submitted the film Viva Erotica to the Classification Board for classification under the Classification (Publications, Films and Computer Games) Act 1995 (Cth) (the Act). The appellant contended that the film should be classified R18+. The Classification Board classified it X18+. Both classifications restrict films to persons 18 years and above. The effect of the higher X18+ classification is that films are not legally available for sale or hire in Australia, except in the Australian Capital Territory and the Northern Territory. The appellant applied to the Classification Review Board for review of the Classification Board’s decision. See ss 42 and 44 of the Act. The Classification Review Board confirmed the classification.
2 The appellant sought review of the decision of the Classification Review Board (the Board) under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The application for review was dismissed by the primary judge.
Classification scheme
3 The uniform classification scheme was established under an agreement made in 1995 between the Commonwealth, the States and the Territories. For present purposes, the only relevant statute is the Act. It establishes the Classification Board and the Board: ss 45 and 72. In the appointment of members to the Classification Board and the Board, regard is to be had to the desirability of ensuring that membership is broadly representative of the Australian community: ss 48(2) and 74(2).
4 Section 7(2) sets out the different types of classification for films "in ascending order". They are:
G General
PG Parental Guidance
M Mature
MA15+ Mature Accompanied
R18+ Restricted
X18+ Restricted
RC Refused Classification.
5 Section 9 provides that films are to be classified in accordance with the National Classification Code (the Code) and the Guidelines for the Classification of Films and Computer Games 2005 (the Guidelines). Section 11 sets out matters to be taken into account in making a classification. It provides:
The matters to be taken into account in making a decision on the classification of a publication, a film or a computer game include: (a) the standards of morality, decency and propriety generally accepted by reasonable adults; and (b) the literary, artistic, or educational merit (if any) of the publication, film or computer game; and (c) the general character of the publication, film or computer game, including whether it is of a medical, legal or scientific character; and (d) the persons or class of persons to or amongst whom it is published or is intended or likely to be published.6 Section 12(1) provides:
The Minister may, with the agreement of each participating Minister, determine guidelines to assist the Board in applying the criteria in the Code.The Guidelines were determined pursuant to this provision. Section 12(3) provides that if the Minister and each participating Minister agree to an amendment to the Guidelines, they are taken to be amended accordingly.
7 A person who applies to the Classification Board for classification of a film may apply to the Board for a review of the Classification Board’s decision: s 42(2)(b). The Board must deal with an application for review of a decision in the same way that the Classification Board deals with the application for classification: s 44(1).
Code
8 Clause 1 of the Code states that classification decisions are to give effect, as far as possible, to the following principles:
(a) adults should be able to read, hear and see what they want; (b) minors should be protected from material likely to harm or disturb them; (c) everyone should be protected from exposure to unsolicited material that they find offensive; (d) the need to take account of community concerns about:(i) depictions that condone or incite violence, particularly sexual violence; and(ii) the portrayal of persons in a demeaning manner.
9 Films are to be classified in accordance with the table contained in clause 3 of the Code:
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Item
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Description of film
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Classification
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|---|---|---|
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1
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Films that:
(a) depict, express or otherwise deal with matters of sex, drug misuse or
addiction, crime, cruelty, violence or revolting or abhorrent
phenomena in such
a way that they offend against the standards of morality, decency and propriety
generally accepted by reasonable
adults to the extent that they should not be
classified; or
(b) describe or depict in a way that is likely to cause offence to a
reasonable adult, a person who is, or appears to be, a child
under 18 (whether
the person is engaged in sexual activity or not); or
(c) promote, incite or instruct in matters of crime or violence
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RC
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2
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Films (except RC films) that:
(a) contain real depictions of actual sexual activity between consenting
adults in which there is no violence, sexual violence, sexualised
violence,
coercion, sexually assaultive language, or fetishes or depictions which
purposefully demean anyone involved in that activity
for the enjoyment of
viewers, in a way that is likely to cause offence to a reasonable adult;
and
(b) are unsuitable for a minor to see
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X 18+
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3
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Films (except RC films and X 18+ films) that are unsuitable for a minor to
see
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R 18+
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4
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Films (except RC films, X 18+ films and R 18+ films) that depict, express
or otherwise deal with sex, violence or coarse language
in such a manner as to
be unsuitable for viewing by persons under 15
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MA 15+
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5
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Films (except RC films, X 18+ films, R 18+ films and MA 15+ films) that
cannot be recommended for viewing by persons who are under
15
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M
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6
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Films (except RC films, X 18+ films, R 18+ films, MA 15+ films and M films)
that cannot be recommended for viewing by persons who
are under 15 without the
guidance of their parents or guardians
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PG
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7
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All other films
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G
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Guidelines
10 The Introduction to the Guidelines states that they are a tool for classifying films and that they help to explain the different classification categories and the scope and limits of material suitable for classification under each category. It also states that the Guidelines "are revised from time to time, with extensive community input".
11 The Guidelines list three essential principles underlying their use:
• the importance of context
• assessing impact
• the six classifiable elements.
12 The Guidelines employ a hierarchy in assessing the "impact" of a film:
• very mild G
• mild PG
• moderate M
• strong MA15+
• high R18+
• very high RC
The classification X18+ does not appear in the hierarchy.
13 Assessing the impact of a film is said to require consideration not only of its individual elements, but of their cumulative effect. It also requires consideration of the purpose and tone of a sequence. The impact of a film may be higher where a scene uses various visual techniques such as close-ups, accentuation techniques or repetition.
14 The six classifiable elements of a film are:
• themes
• violence
• sex
• language
• drug use
• nudity.
Classification of a film takes into account the context and impact of each element, including their frequency and intensity, as well as their cumulative effect. Context is crucial in determining whether an element is justified by a film’s story-line or themes.
15 The Guidelines give "explanations" for the various categories of classification set out at [4]. Those for R18+ and X18+ are as follows:
R 18+ - RESTRICTED
Impact test The impact of material classified R18+ should not exceed high. Note: This classification category applies only to films. Material classified R18+ is legally restricted to adults. Some material classified R18+ may be offensive to sections of the adult community. Classifiable elements THEMES There are virtually no restrictions on the treatment of themes. VIOLENCE Violence is permitted. Sexual violence may be implied, if justified by context. SEX Sexual activity may be realistically simulated. The general rule is "simulation, yes – the real thing, no". LANGUAGE There are virtually no restrictions on language. DRUG USE Drug use is permitted. NUDITY Nudity is permitted. X18+ - RESTRICTED CONTAINS CONSENSUAL SEXUALLY EXPLICIT ACTIVITY (Restricted to adults 18 years and over*) *Available only for sale or hire in the ACT and Northern Territory. Note: This classification category applies only to films. This classification is a special and legally restricted category which contains only sexually explicit material. That is material which contains real depictions of actual sexual intercourse and other sexual activity between consenting adults. No depiction of violence, sexual violence, sexualised violence or coercion is allowed in the category. It does not allow sexually assaultive language. Nor does it allow consensual depictions which purposefully demean anyone involved in that activity for the enjoyment of viewers. Fetishes such as body piercing, application of substances such as candle wax, ‘golden showers’, bondage, spanking or fisting are not permitted. As the category is restricted to activity between consenting adults, it does not permit any depictions on non-adult persons, including those aged 16 or 17, nor of adult persons who look like they are under 18 years. Nor does it permit persons 18 years of age or over to be portrayed as minors.Viva Erotica
16 Before the primary judge the parties accepted the Board’s description of the film as accurate. It is substantially as follows. The film is of 98 minutes duration. It depicts men and women having sex. There is no plot and the participants are not given names. There are six unrelated ‘vignettes’ containing explicit sex scenes, five involving a man and a woman and one involving two women.
17 Various forms of sexual activity are explicitly shown including cunnilingus, fellatio, rear-entry sex, the use of dildos, self, partner and mutual masturbation, ejaculation, digital and penal vaginal penetration and tongue stimulation of the anus.
18 The camera angles are designed to accentuate and focus on the sexual activity. Throughout the film there is significant and frequent use of cinematographic techniques to accentuate the sexual activity, including close-ups, zooms, lighting, background music and noises by the participants.
19 The Review Board did not consider that the film depicted fetishes, although the first vignette contains prolonged scenes of toe sucking and licking. The fourth vignette contains four-fingered vaginal penetration and the sixth shows a man using his open hand to stimulate his erect penis.
20 The film contains no violence, sexual violence or coercion.
Board’s reasons
21 The following account of the Board’s reasons is taken from the primary judge’s judgment. It is, in our view, an accurate summary of those reasons.
22 The Board observed that it was required by s 11(a) of the Act to take into account standards of morality, decency and propriety generally accepted by reasonable adults. It acknowledged that these are a reflection of community standards which change over time.
23 Although the Board accepted that survey and expert evidence can be informative and persuasive, it said it was not at liberty to "delegate its responsibility" to make a decision on community standards to others, however learned or however extensive the survey: at 7.4.2. Later in its reasons, the Board found that the expert and survey evidence did not support the appellant’s argument that reasonable adults were not offended by the film. This was because the survey participants were not shown the film or any similar film, and the evidence of the experts did not address the specific question whether a reasonable adult would be offended by the explicit content of the film.
24 The Board stated its position on the expert evidence at 7.4.9:
Overall, the Review Board noted and took into account all the expert evidence in its consideration of current community standards and of whether Viva Erotica contained depictions that would offend a reasonable adult. The Review Board did not regard the evidence as definitive on either issue. The evidence was quite general in nature.25 The Board considered its role to be to apply, independently, its own understanding and perception of community standards. It referred to s 74(2) of the Act which required its membership to be broadly representative of the Australian community, and said this was "presumably to enable it to bring to its decision making the perspective of a wide cross section of the Australian community": at 7.4.2. It was of the view that community standards among Australian adults are not uniform on the topic of sexually explicit films. There is a wide spectrum of views:
From this broad spectrum including older and younger, liberal and conservative, passionate and ambivalent views, the Review Board must use its own perception, its experience and available evidence to form the best view in the circumstances of the current standards of the Australian community and reasonable adults.26 The Board said it had regard to its perception of community standards "as demonstrated by the process of updating the Guidelines in May 2005". It said at 7.4.4 it had also had regard to the debate over the amendments to the X classification at the turn of the decade, and that both the updating and the debate
... involved extensive community consultation and a conclusion, by State, Territory and Australian Governments that the classification regime in relation to R and X rated films did not require an overhaul in light of changing community standards and that the current classifications were, broadly, working well and were in line with community expectations.27 The Board regarded the general rule stated in the Guidelines for R18+, namely "simulation yes – the real thing, no", as broadly representative of current community standards. It considered that most reasonable adults would accept an exception to the general rule, so as to permit an R18+ classification for explicit sexual activity where the film has artistic or other merit, and the actual sex is not prolonged or detailed, having regard to the context of the film. It went on at 7.4.5:
However, it is the view of the Review Board that in regard to a wholly explicit film, such as Viva Erotica, where the entire film is focused solely on sexually explicit activity and titillation that the community would not accept this under the ‘exception’ rule and that the general rule should therefore apply. The Review Board noted that the Applicant made no submission as to artistic or any other merit of Viva Erotica.28 The Board took into account the four principles to which it is required to give effect "as far as possible" under the Code, and noted that they are not binding rules.
29 The Board concluded that taking into account all the matters mentioned in its reasons, Viva Erotica would cause offence to a reasonable adult and it was unsuitable for a minor to see. It found that there were no circumstances justifying a departure from the general rule in the Guidelines that "the real thing" should not be classified R18+, and that the most appropriate classification was X18+.
30 The Board’s decision was a unanimous one of all seven members.
Primary judge
31 The primary judge rejected all the attacks on the Board’s decision mounted by the appellant. His Honour rejected the claim that the Guidelines were invalid because they required a film containing real depictions of actual sexual activity between consenting adults to be classified X18+ without regard to the requirement in the Code that the depiction be "likely to cause offence to a reasonable adult". He rejected claims that the Board applied the Guidelines without regard to the merits of the case, that it wrongly rejected the expert and survey evidence, that its decision was unreasonable in the Wednesbury sense, and that it relied on facts for which no supporting evidence existed.
32 In relation to the words of the Code "likely to cause offence to a reasonable adult", the primary judge rejected the appellant’s contention that the words import a test of whether a majority of Australians would be likely to be offended. His Honour said:
...170 In summary, the ‘offensiveness’ test for the X18+ classification in the Code is not determined by a mechanistic majoritarian approach. It calls for a judgment about the reaction of a reasonable adult in a diverse Australian society.
172 Even if the question of what would be likely to cause offence to a reasonable adult calls for a judgment as to ‘what most people think’, it is a value judgment which is not susceptible to a bright line test.
173 The Code calls for the Review Board to make a judgment on the "reasonable adult" question in deciding whether to classify a film as X18+. This is plain from the words "likely to cause offence to a reasonable adult". Not every film which depicts actual sex will meet this classification. Yet on the approach urged by Adultshop, no film containing real depictions of actual sex between consenting adults, where there is no violence etc, would be so classified. This is because, on Adultshop’s approach, no such film would be offensive to a reasonable adult. In light of its own findings on current community standards, the Review Board was correct to reject Adultshop’s approach.
Grounds of appeal
33 There are two grounds of appeal. The first is that the primary judge should have held that the Guidelines are invalid because they are inconsistent with s 11(a) of the Act. The second is that his Honour erred in not finding that the Board’s decision involved an error of law, in that it should have found, on the basis of the expert evidence, that in accordance with s 11(a) films containing real depictions of actual sexual activity between consenting adults in which there is no violence etc do not cause offence to the majority of reasonable Australian adults.
Invalidity of Guidelines contentions
34 The appellant first made these general submissions about the relationship between the Act, the Code and the Guidelines:
(a) the mandatory requirement of s 11(a) is different from any matter in the Code; it would be senseless for the s 11(a) matter to be replicated in the Code or coterminous with a requirement of the Code;
(b) the Board must classify in accordance with s 11, the Code and the Guidelines;
(c) it follows that there cannot be inconsistency between a mandatory classification requirement of the Act (s 11(a)) and a criterion in the Code;
(d) because the Guidelines relate only to the application of the criteria in the Code (s 12(1)), the Guidelines cannot be inconsistent with a mandatory classification requirement of the Act (s 11(a));
(e) it follows that the scheme of the three instruments is that the classifier must start the classification process with the mandatory classification requirements in s 11;
(f) if a mandatory classification requirement of the Act (s 11(a)) is inconsistent with a guideline in the Guidelines, that guideline could not "assist the Board in applying the criteria in the Code" (s 12(1)) and would be disregarded;
(g) if a mandatory classification requirement of the Act (s 11(a)) is inconsistent with a criterion in the Code, the Code criterion "is not applied": Oreb v Willcock [2004] FCA 1520 at [217];
(h) the Court should approach the question of inconsistency on the assumption that the legislature and its delegates did not intend that provisions of the overall scheme would be inconsistent with each other.
35 As to s 11(a), the appellant claimed:
(a) the "criterion" is a question of fact;
(b) that fact is not found simply by having reference to the qualifications of members of the Board (s 74(2));
(c) expert evidence is admissible to prove the fact or criterion.
36 As to the relevant Code criterion it was said:
(a) because Viva Erotica contains no violence etc for the purposes of item 2 of clause 3, the film was considered to "contain real depictions of actual sexual activity between consenting adults ... in a way that is likely to cause offence to a reasonable adult";
(b) the requirement that the depiction be "likely to cause offence to a reasonable adult" is an objective enquiry; not a matter depending on evidence;
(c) item 2 is directed to a different matter than s 11(a) of the Act;
(d) by reason of clause 1 of the Code, and having regard to the non-violent etc nature of the film, the Board, in considering item 2, must proceed "as far as possible" to give effect to the principle that adults should be able to hear and see what they want.
37 It was said that the R18+ guideline – "simulation, yes – the real thing, no" – (the relevant guideline) is to assist the Board in determining whether the real thing is "likely to cause offence to a reasonable adult". The relevant guideline is not to be understood as an interpretative aid to the meaning of s 11(a) of the Act.
38 The appellant’s submissions then turned to the primary judge’s reasons. Exception is taken to [97] of his Honour’s reasons:
The principles stated in the Guidelines may be seen as explaining and supplementing the matters specified in s 11 of the Act. They are not inconsistent with the requirement of s 11 that each of those matters be taken into account. To the extent that they supplement those matters, there is no inconsistency with the requirements of s 11. That section does not contain an exhaustive list of factors. It does not prevent the Review Board from having regard to other matters. All that is required is that the Review Board include in the factors which it takes into account, the four matters stated in s 11.39 The appellant submitted that if the relevant guideline "explains" s 11(a), it will be invalid if the explanation is inconsistent with s 11(a).
40 On the question of inconsistency between the relevant guideline and s 11(a) the appellant submitted:
(a) the Act divorces the Guidelines from a consideration of the matters required to be considered under s 11(a) of the Act;
(b) the expert evidence was relevant to "the fact required to be found for s 11(a)", (though not in determining the Code question whether the film was likely to cause offence to a reasonable adult);
(c) the relevant guideline is inconsistent with s 11(a) because, on the basis of the expert evidence, the Board ought to have concluded that films which depict actual consensual sex between adults do not offend "the s 11(a) standard";
(d) having found as in (c), when the Board came to apply the Code requirement – whether the film contained "real depictions of actual sexual activity between consenting adults ... in a way that is likely to cause offence to a reasonable adult" – the relevant guideline dictates a decision inconsistent with the s 11(a) matter that the Board is bound to take into account, namely that films which depict actual consensual sex between adults do not offend "the s 11(a) standard".
(e) by reason of that inconsistency the relevant guideline is invalid: Oreb v Willcock at [217].
41 In relation to [40(b)] the appellant took exception to [62] of the primary judge’s reasons:
I do not propose to repeat the reasons given by the Review Board for finding that the expert and survey evidence was unhelpful. It is sufficient to say that the Review Board observed that the survey participants were not shown Viva Erotica or a similar film. Also, the Review Board did not consider that the evidence of the experts ... addressed the specific question of whether a reasonable adult would be offended by the explicit content of Viva Erotica.The complaint was that the survey and expert evidence was not directed to the Code question whether a depiction was likely to cause offence to a reasonable adult, but to the s 11(a) issue whether films depicting actual consensual sex between adults offended standards of morality, decency and propriety generally accepted by reasonable adults.
Validity of relevant guideline
42 In our view a matter lying at the foundation of the appellant’s argument is not made out. That is the relationship it propounds between s 11 of the Act and the other parts of the overall scheme. While the Act, in s 7(2), determines the types of classifications for films, the criteria for differentiating between those classifications is found in a combination of the Code and the Guidelines: s 9. The content of the Code and the Guidelines is left by the Act in the hands of the Ministers representing the Commonwealth, the State and the Territories: ss 6(2) and 12. It is true that s 11 of the Act requires the Board to take into account various matters, including the standards of morality, decency and propriety generally accepted by reasonable adults: par (a). However those matters do not govern classification decisions. Contrary to the appellant’s submissions, the s 11 matters are not classification "criteria" or "standards". As s 9 makes clear, films are to be classified in accordance with the Code and the Guidelines. They work together.
43 Although the Code’s tables are prefaced by a list of principles to which classification decisions are to give effect "as far as possible", the tables are prescriptive: "Films are to be classified in accordance with the following Table". Thus, for example, a film that promotes violence must be classified RC, and one that is unsuitable for minors must be classified R.
44 In contrast to the Code’s prescriptive character, s 11 merely requires the matters it lists and any relevant unlisted matter to be "taken into account". That means the Board must "have regard" to them: cf R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 25 ALR 497 at 504 per Mason J. The appellant is wrong
• to describe the first matter in s 11 as "the criteria ... in s 11(a)"
• to describe the Board as "making a classification decision ... in accordance with s 11"
• to speak of s 11(a) as "a mandatory classification requirement of the Act"
• to say that the decision maker "must start the classification process with the mandatory classification requirements of the Act – s 11"
• to describe s 11(a) as "the standard"
• to describe s 11(a) as a "stand alone criterion".
45 The appellant’s contention that s 11(a) is a classificatory criterion or standard forms the basis for its contention that there is an inconsistency between s 11(a) and the relevant guideline. Inconsistency between a statute and a regulation made under it, between provisions of different statutes, and between provisions of the one statute, are readily understood. However, inconsistency between a prescription contained in a regulation or other delegated legislation and a matter a statute merely requires to be taken into account, is not easily grasped. Whatever might be the case where the decision maker does not take the relevant matter into account, we have difficulty in seeing that, where it is taken into account, a decision made in accordance with the criteria governing the decision-making process could be invalid because the actual decision does not conform or accord with the matter the decision maker was merely required to take into account.
46 In any event, the Minister is in our view correct in submitting that in order for the Code or the Guidelines to be inconsistent with s 11(a), they would have to provide, expressly or by implication, that the Board is not required to take the s 11(a) matter into account in making the classification decision. Neither the Code nor the Guidelines does that. Indeed item 1(a) of clause 3 of the Code repeats the verbiage of s 11(a) – "offend against the standards of morality, decency and propriety generally accepted by reasonable adults ...". Item 1(b) deals with films that describe or depict a child "in a way that is likely to cause offence to a reasonable adult". Item 2(a) of clause 3, dealing with films containing real depictions of actual sexual activity between consenting adults, concludes with the words "in a way that is likely to cause offence to a reasonable adult".
47 The Guidelines are not self-standing. They are to be read with the Code as a means of assisting the Board in applying its criteria. Thus, when the RC guideline rules out, for example, offensive depictions of sexual activity accompanied by practices which are offensive or abhorrent, it is to be understood, by reference to the Code, that they are proscribed because they offend against the standards of morality etc there set out. Similarly, the X18+ guideline rules out real depictions of actual sexual activity between consenting adults (in which there is no violence etc) "in a way that is likely to cause offence to a reasonable adult".
48 In our view therefore the appellant’s inconsistency argument fails for want of a foundation that elevates the matters in s 11(a) to the status of classification criteria.
49 The appellant contends that s 11(a) raises a question of fact that must be determined by the Board on the basis of expert evidence and not simply by reference to the members’ own perceptions of community standards. We doubt that taking into account the s 11(a) matters involves an enquiry based on evidence, especially expert evidence, culminating in formal findings of fact. We think it more likely that the legislature intended to entrust that matter to the members, who are to be appointed having regard to the desirability of ensuring that membership is "broadly representative of the Australian community". In Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686 the Minister was required to "have regard to all the circumstances of the relationship" including various specified matters. Justice Dowsett rejected a contention that having regard to matters obliges the decision maker to make specific findings about them.
50 In any event, the Board not only took into account the appellant’s evidence; it formed a view about it. It will be recalled that the appellant contended (see [40(b)]) that the expert evidence was relevant to "the fact required to be found for s 11(a)" but not to the question whether the film was "likely to cause offence to a reasonable adult". However, that was not the basis upon which the appellant commissioned the experts. Each was asked for an opinion on the question posited by item 2 of clause 3 of the Code. Thus Associate Professor Lumby was asked to answer this question:
Having regard to current community standards of morality, decency and propriety would a film primarily involving various forms of actual sexual activity, including close-ups, between consenting adults but with no coercion or violence, be likely to cause offence to a reasonable adult?That is the question she answered at pars 2.3 and 8.2 of her report. The same question was asked of and answered by Ms Albury (par 44) and Associate Professor McKee (pars 79 and 89).
51 Though the experts were asked and answered the Code question, it is clear that, when considering their evidence, the Board took it into account in a s 11(a) context as well. As appears from our summary of the Board’s reasons at [22] to [29], the Board first dealt with s 11(a). It recited its content, and thereafter referred to the s 11(a) matters as "community standards". It then said that, while survey and expert evidence can be informative and persuasive, the Board could not delegate its responsibility to make a decision on community standards to others. It was its role to apply independently its understanding and perception of community standards. In this connection it noted that its membership is to be broadly representative of the Australian community: s 74(2), presumably to enable it to bring to its decision making the perspective of a wide cross section of the Australian community. The Board went on to say that community standards are not uniform among Australian adults in the context of sexually explicit films, and from the broad spectrum of views on that topic, the Board must use its own perception and experience and the available evidence to form the best view in the circumstances of the current standards of the Australian community and reasonable adults. The Board said that in reaching its view it had regard to its perception of community standards as demonstrated by the process of updating the Guidelines in May 2005 and the debate over the amendments to the X classification at the turn of the decade, both of which involved extensive community consultation. It also had regard to a conclusion, by State, Territory and Australian governments, that the classification regime in relation to R and X rated films did not require an overhaul in light of changing community standards, and that the current classifications were, broadly, working well and were in line with community expectations. The Board said it also regarded the general rule in the Guidelines of "simulation, yes – the real thing, no", promulgated by elected Government representatives after community consultation, as being broadly representative of the current community standards.
52 The Board then said it did not consider that the survey and expert evidence lent significant support to the appellant’s argument that "reasonable adults were not offended by films containing explicit sex between consenting adults, and that the film was therefore not offensive to a reasonable adult": at 7.4.7. This formulation shows that the Board was directing its mind to both s 11(a) and item 2 of the Code. The Board then gave detailed reasons for its view as to the inutility of both the survey and expert evidence. Its conclusion is set out at [24]. In that passage it said once again that it took into account all the expert evidence in its consideration of current community standards (s 11(a)) and whether the film contained depictions that would offend a reasonable adult (the Code).
53 The Board then moved from s 11(a) and the Code to s 11(b) – the literary, artistic or educational merit of the film, and said it was common ground that the film had no such merit. It then dealt with s 11(c) – the general character of the film, and then with s 11(d) – the likely audience of the film.
54 It is apparent from what we have said that the Board did not ignore the relevance of the expert evidence to s 11(a). If the Board was obliged to make a finding about the s 11(a) matter, it did so. See [51] and [52].
55 We do not accept the appellant’s contention that the Board failed to identify the community standards to which it referred in its reasons. The standards appear from the last two sentences of [51], in particular the Board’s acceptance in the s 11(a) connection of the general rule of "simulation, yes – the real thing, no".
56 In any event, a premise of the appellant’s argument on inconsistency was that, on the basis of the evidence before it, the Board ought to have concluded that films which depict actual consensual sex between consulting adults do not offend the standard referred to in s 11(a): see par 52 of the appellant’s submissions. For the reasons given below, there was no error in the Board’s conclusion concerning the evidence.
57 The relevant guideline is not invalid for inconsistency with s 11(a). The primary judge did not err in concluding at [97] that the principles in the Guidelines are not inconsistent with the requirement that each of the s 11 matters be taken into account. It is true that the first sentence in [97] could have been more cautiously phrased – the principles in the Guidelines "may be seen as explaining and supplementing" the s 11 matters. There is no doubt that, since the function of the Guidelines is to assist in the application of the criteria in the Code, they supplement and explain the Code. We think the Minister is correct in submitting that the primary judge’s reference to "explaining and supplementing" is a recognition of the fact that a classification decision is made after taking into account the matters referred to in s 11, and that the Guidelines identify factors to which those matters may be relevant, and in that way may be seen as explanatory of and supplementary to them.
Second ground of appeal
58 The appellant’s contentions can be summarised as follows:
(a) the Board’s reasons conflate s 11(a) and the specific question that arises under the Code;
(b) the determination of fact for the purpose of s 11(a) should have been done by the Board on the basis of the expert evidence;
(c) the Board does not explain why the expert evidence was not relevant or persuasive on the s 11(a) issue;
(d) the relevant guideline is not germane to the making of the factual finding under s 11(a);
(e) the expert evidence related to s 11(a), not to the question under the Code.
59 As to (a), reference is made to 7.4.2 and 7.4.7 of the Board’s reasons. There is no conflation in 7.4.2. It is solely concerned with s 11(a). Paragraph 7.4.7 is described at [52]. As there indicated, the Board dealt separately with the s 11(a) matter – evidence that reasonable adults are not offended by films containing explicit sex between consenting adults – and the Code criterion – the film was therefore not offensive to a reasonable adult. There is no conflation.
60 As to (b), we refer to what we have said at [49] to [54]. Whether or not the Board was obliged to deal with the expert evidence in the manner for which the appellant contends, it did so.
61 As appears at [52], there is no substance in contention (c). The Board gave detailed reasons for its conclusion that the evidence was unhelpful on the s 11(a) matter and on the Code criterion.
62 As to (d), there was no error in the Board’s view that it was not required to determine the classification by resort to the expert evidence alone ("cannot simply delegate its responsibility ... to others"): at 7.4.2. Nor was it in error in deciding that it was entitled to reach its decision on community standards by reference to its own perceptions together with any relevant evidence. It was in our view clearly entitled to say, as it did in the paragraph assailed (7.4.5), that the relevant guideline "promulgated by elected Government representatives after community consultation" was "broadly representative of the current community standards".
63 As to (e), the expert evidence was directed to the Code question. See [50].
Conclusion
64 Both grounds of appeal having been rejected, the appeal must be
dismissed.
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Solicitor for the Appellant:
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Salter Power
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Counsel for the Second Respondent:
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S Lloyd
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Solicitor for the Second Respondent:
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Australian Government Solicitor
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URL: http://www.austlii.edu.au/au/cases/cth/FCAFC/2008/79.html