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Administrative Appeals Tribunal of Australia |
Last Updated: 17 November 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION |
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Re |
"WAX" |
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And |
DIRECTOR OF THE CLASSIFICATION BOARD |
Tribunal |
Associate Professor S D Hotop, Deputy President Dr D Weerasooriya, Member |
Decision
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The Tribunal affirms the decision under review.
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............(sgd S D Hotop).....................
CUSTOMS - prohibited imports - imported publications determined by Australian Customs Service to be prohibited imports - applicant sought permission of Attorney- General to import publications - respondent authorised by Attorney-General to grant or refuse permission to import - respondent refused to grant permission to applicant to import publications - whether permission to import publications should be granted to applicant - relevant considerations - purposes for which publications imported - extent to which applicant conducts activities of artistic, educational, cultural or scientific nature to which publications relate - reputation of applicant generally and in relation to such activities - ability of applicant to meet conditions that may be imposed in relation to publications.
PRACTICE AND PROCEDURE - proper scope of Tribunal's review - whether review includes question whether publications are, or are not, prohibited imports.
Customs (Prohibited Imports) Regulations 1956, reg 4A
Re Creek and Office of Film and Literature Classification (2001) 66 ALD 733
Re Moore and Attorney-General's Department (1995) 21 AAR 190
Re Moore and Attorney-General's Department (No 2) (1995) 39 ALD 655
14 November 2003 |
Associate Professor S D Hotop, Deputy President Dr D Weerasooriya, Member |
INTRODUCTION |
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1. The applicant has applied to the Tribunal for review of a decision, dated 23 November 2001, of the Director of the Classification Board ("the respondent") to refuse to grant him permission under reg 4A(2) of the Customs (Prohibited Imports) Regulations 1956 ("the Regulations") to import two publications, namely:
* Kevin Esser, Street Boy Dreams (2nd ed, 1997, Ariel's Press)
* "Koinos 26" (2nd quarter, 2000)
("the publications").
2. At the hearing the applicant appeared in person without representation, and the respondent was represented by Mr A Jenshel of Counsel. The Tribunal had before it the documents ("T documents", T1-T10) lodged by the respondent in accordance with s37 of the Administrative Appeals Tribunal Act 1975 and the following exhibits:
* a bundle of documents, numbered 1-154, and a videotape comprising scenes from certain cinematographic films and television series (A1)
* a statement of the applicant's case (pp 1-77) (A2)
* Luis Miguel Fuentes, Diary of a Dirty Boy (Collected Writings of Luis Miguel Fuentes) (1998, The Wallace Hamilton Press) (A3)
* Perth International Arts Festival 50th Anniversary Brochure and Programme (January-February, 2003) (A4)
* Marguerite Yourcenar, Alexis (1984, Aidan Ellis) (A5)
* "Prohibited Publications and Other Goods - Agreement regarding Administrative Arrangements between The Office of Film and Literature Classification and Australian Customs Service" (31 October, 2000) (A6)
* Kevin Esser, Street Boy Dreams (2nd ed, 1997, Ariel's Press) (R1)
* "Koinos 26" (2nd quarter, 2000) (R2)
* Instrument of Appointment by Attorney-General of an authorized person for the purposes of reg 4A(2) of the Customs (Prohibited Imports) Regulations, dated 6 December 1995 (R3)
* Instrument of Appointment by Governor-General of Director of the Classification Board, under s48(1) of the Classification (Publications, Films and Computer Games) Act 1995, dated 12 April 2000 (R4).
Oral evidence was given by the applicant and, on his behalf, by Stuart Pekin. The respondent did not call any witnesses.
THE FACTUAL BACKGROUND
3. The essential background facts, about which there is no dispute between the parties, and as found by the Tribunal on the basis of the T documents, are as follows.
4. By letter dated 19 October 2000 an officer of the Australian Customs Service ("ACS") informed the Office of Film and Literature Classification ("OFLC") that he was investigating "the importation of suspected Reg 4A material via the post" and he requested the OFLC to classify that material (namely, the publications) and advise him accordingly. The publications were enclosed with that letter. (T8)
5. By letter dated 3 November 2000 (T9) an officer of the OFLC forwarded to the ACS the OFLC's advice, dated 3 November 2000, regarding each of the publications. That advice was in the following terms:
* "The office recommends, after consultation with members of the Classification Board, that the following publication be declared a prohibited import
Title: STREET BOY DREAMS
Publisher: ARIEL'S PRESS
Author: KEVIN ESSER
Production No: L00/1881
This publication belongs to the class of goods described in paragraph 4A(1A)(b), that is goods that:
describe or depict in a way that is likely to cause offence to a reasonable adult, a person who is, or who looks like, a child under 16 (whether the person is engaged in sexual activity or not)
In the Office's view, the publication contains depictions of child pornography."
(T10)
* "The office recommends, after consultation with members of the Classification Board, that the following publication be declared a prohibited import
Title: KOINOS 26 2ND QUARTER 2000
Publisher: NOT SHOWN
Author: NOT SHOWN
Production No: L00/1880
This publication belongs to the class of goods described in paragraph 4A(1A)(a)(b), that is goods that:
describe, depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be imported
describe or depict in a way that is likely to cause offence to a reasonable adult, a person who is, or who looks like, a child under 16 (whether the person is engaged in sexual activity or not)
In the Office's view, the publication contains depictions of minors; child pornography."
(T3)
6. On 31 October 2001 the applicant wrote to the Attorney-General as follows:
"I have been charged with importing two items, a novel STREETBOY DREAMS by Kevin Esser and a journal KOINOS, which the Australian Customs Service claim are tier two goods and prohibited imports.
Although I do not believe these items are prohibited imports and will if necessary defend the charges against me, and although it never was my intention to import the items, my legal advice is that under the Customs (Prohibited Imports) Regulations there is no time restriction on when I may apply to you to import prohibited goods.
Consequently, I make this application to your office to import the novel STREETBOY DREAMS by Kevin Esser published by Ariel's Press 1997, and the journal KOINOS number 26 2nd quarter 2000.
In making my application I would be pleased for you to take regard of the following:
(a) the purposes for which the goods are to be imported
I would like to import the goods to defend my case in this prosecution.
I would also like to import the goods for my continued study of relationships between gay men and youths in furthering my profession as a storyteller, writer and political activist.
The novel and journal have recognised artistic value. Kevin Esser is an established American gay author and the novel STREETBOY DREAMS ranks 53rd in the Gay Publishers Association list of the 100 most popular gay books. KOINOS has been widely praised for the quality of its photography and articles.
Both the novel and journal have an important historical place in gay culture. The emergence of a gay sexuality during boyhood has always been a major genre of gay literature and gay political writing. Esser's writing represents a watershed within gay literature reflecting the emergence of non-polemic, realistic representations of boyhood relationships. Although not taking a strong stand on political issues, KOINOS remains cognisant of the development of discussion on inter-generational relationships both within and outside the gay community. It is one of the few journals that is able to present this particular view.
Both items play a valuable role in developing political discussion and understanding on the subject of gay inter-generational relationships (KOINOS is the only multi-lingual journal on the subject in the world, Esser one of the most experienced writers).
Neither the novel nor the journal promote `paedophilia'.. They both tackle the subject of sex between men and youths as a serious subject offering a unique gay insight adding to popular knowledge and making suggestions for social resolutions to what most people would see as a major trauma for our society.
(b) the extent to which the person to whom any permission to import the goods would be granted conducts activities of an artistic or educational, or of a cultural or scientific, nature to which the goods relate
I have been a professional storyteller and writer for more than thirty years. I have worked at all major festivals in Australia as well as extensively in Britain, Africa, India and Europe. I have had more than two hundred stories/plays performed professionally. I am one of the best known and respected Australian storytellers for children in the world. I have worked with community arts organisations in every state in Australia and been instrumental in the setting up of on-going arts projects in Western Australia, Victoria and New South Wales. I have received Federal and State arts funding for my work in Western Australia, Victoria, Tasmania, The Northern Territory, South Australia and in New South Wales. I was a founding member of the National Community Arts Organisation and convenor of the Victorian chapter. I have been a committee member of the WA Storytellers Guild and represented WA at a National Storytellers Conference. I have been invited to conduct seminars in the arts for practitioners in Australia, England, Scotland and Romania.
Also for many years I have been active in the Australian gay movement as a performer and as a political activist. I was a member of Gay Solidarity in Sydney and an organiser for four National Gay and Lesbian Conferences. I was a committee member of Stonewall NSW, the 5th November Defence Committee and the convenor of the Gay Men's Action Group on Child Abuse. I have twice represented Australia at International Lesbian and Gay Association conferences. I have performed at gay festivals in Sydney, Melbourne and Brisbane and was the sign Interpreter for the Sydney Gay Quire. I have been a guest speaker on the issue of inter-generational sex at seminars around Australia. I have had pamphlets, articles and interviews on the subject published in gay, student and alternative magazines, on community radio around Australia, as well as in all major Australian newspapers and on the major television networks.
I was research assistant on a project about youth sexuality conducted under the auspices of NSW university.
I am the recent author of a novel, a collection of short stories and one non-fiction book on the subject of sexual relations between men and youths that are now awaiting publication.
(c) the reputation of the person referred to in paragraph (b) both generally and in relation to an activity referred to in that paragraph
[extracts from 7 testimonials, dated 1999 and 2000, regarding the applicant's artistic activities - in particular, storytelling - are then set out]
(d) the ability of that person to meet conditions that may be imposed under subregulation (3) in relation to the goods
I see no impediment to my ability to meet any conditions that the Attorney-General may require.
(e) other relevant matters
Although the charges carry a penalty of $10,000.00 or twenty years imprisonment, I am advised that this particular offence is unlikely to attract more than a suspended sentence or small fine. It is at the extreme lower end of prosecutable offences.
However, proceeding to trial will cause considerable stress to me, to my general health and place my person in considerable danger of attacks from vigilante groups and individuals. It will put me in an impossible financial position. Also the trial may run to several weeks and cost the Australian public far more than is justified by any perceivable example it might set.
This is a victimless crime, if crime it is. The prosecution has been brought, in my considered submission, by an over-zealous and even homophobic application of the Australian Customs Service's remit. Continuation of the prosecution, or refusal to grant permission, would be seen by many gay men as an unreasonable attack on our right to read materials important to our personal development, political education and cultural community expression.
...".
(T5)
7. On 23 November 2001 the respondent wrote to the applicant as follows:
"I refer to your letter dated 31 October 2001 to the Attorney-General, The Hon Daryl Williams AM QC MP. The Attorney-General has delegated the decision making power in relation to prohibited imports to the Director of the Classification Board. The letter has accordingly been referred to me for response.
I therefore note your request for permission to import two titles named Street Boy Dreams (Kevin Esser, Ariel's Press, 1997) and Koinos (No 26, 2nd quarter 2000) which contravene Regulation 4A of the Customs (Prohibited Imports) Regulations.
I have decided to refuse your request after considering the information you provided on the intended use of these titles and other relevant matters listed under Regulation 4A(2AA) of the Customs (Prohibited Imports) Regulations.
You may apply for a review of my decision to the Administrative Appeals Tribunal under the Administrative Appeals Act (sic) 1975 (the AAT Act). There are AAT registries in State and Territory capitals. As a person entitled to apply for review, you may, under section 28 of the AAT Act, request that I provide a statement which includes the reasons for my decision.
This letter is the notice of the decision required to be provided to you by Regulation 4A."
(T6) A Statement of Reasons, dated 7 December 2001, for the decision of 23 November 2001 was subsequently provided by the respondent. (T7)
8. Meanwhile the applicant had, on 4 December 2001, lodged with the Tribunal an application for review of the respondent's decision of 23 November 2001. (T1)
THE LEGISLATION
9. The relevant provisions of the Regulations, which were made under s50 of the Customs Act 1901 ("the Act"), are as follows:
"4A Importation of objectionable goods
(1) In this regulation, unless the contrary intention appears:
...
publication means any book, paper, magazine, film, computer game or other written or pictorial matter.
(1A) This regulation applies to publications and any other goods, that:
(a) describe, depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be imported; or
(b) describe or depict in a way that is likely to cause offence to a reasonable adult, a person who is, or who looks like, a child under 16 (whether the person is engaged in sexual activity or not); or
...
(2) The importation of goods to which this regulation applies is prohibited unless a permission, in writing, to import the goods has been granted by the Attorney-General or a person authorized by the Attorney-General for the purposes of this subregulation.
(2AA) In considering whether to grant a permission under subregulation (2), the Attorney-General or the person authorized by the Attorney-General is to have regard to:
(a) the purposes for which the goods are to be imported; and
(b) the extent to which the person to whom any permission to import the goods would be granted conducts activities of an artistic or educational, or of a cultural or scientific, nature to which the goods relate; and
(c) the reputation of the person referred to in paragraph (b), both generally and in relation to an activity referred to in that paragraph; and
(d) the ability of that person to meet conditions that may be imposed under subregulation (3) in relation to the goods; and
(e) any other relevant matters.
(2A) The Attorney-General may, by instrument in writing, appoint a person to be an authorized person for the purposes of subregulation (2).
(3) A permission under this regulation shall be subject to such conditions imposing requirements or prohibitions on the person to whom the permission is granted with respect to the custody, use, reproduction, disposal, destruction or exportation of the goods, or with respect to accounting for the goods, as the Attorney-General or a person authorized by the Attorney-General for the purposes of subregulation (2) thinks necessary to ensure that the goods are not used otherwise than for the purpose for which he grants the permission.
(4) Application may be made to the Administrative Appeals Tribunal for review of a decision of the Attorney-General under subregulation (2):
(a) refusing to grant a permission; or
(b) granting a permission subject to conditions by the person to whom the permission was granted subject to conditions.
... "..
A PRELIMINARY ISSUE - THE PROPER SCOPE OF THE TRIBUNAL'S REVIEW
10. The applicant submitted that the scope of the Tribunal's review includes not only the question whether permission to import each of the publications should, or should not, be granted under reg 4A(2) of the Regulations, but also the fundamental question whether each of the publications falls within reg 4A(1A) of the Regulations and thereby constitutes "goods to which this regulation applies" within the meaning, and for the purposes, of reg 4A(2) of the Regulations. Mr Jenshel (for the respondent) submitted that the scope of the Tribunal's review, pursuant to reg 4A(4) of the Regulations, is confined to the subject matter of the reviewable decision, namely, the question whether permission to import each of the publications should, or should not, be granted under reg 4A(2), having regard to the matters specified in paras (a)-(e) of reg 4A (2AA), of the Regulations. He relied, in support of that submission, on Re Moore and Attorney-General's Department (1995) 21 AAR 190; Re Moore and Attorney-General's Department (No 2) (1995) 39 ALD 655; and Re Creek and Office of Film and Literature Classification (2001) 66 ALD 733.
11. The Tribunal accepts Mr Jenshel's submission. It is clear from the document, "Prohibited Publications and Other Goods - Agreement regarding Administrative Arrangements between the Office of Film and Literature Classification and Australian Customs Service" executed by the Director, Office of Film and Literature Classification and the Chief Executive Officer, Australian Customs Service on 31 October 2000, which was in evidence before the Tribunal (Exhibit A6), that determinations that the importation of goods is prohibited by the Regulations (including reg 4A) are made by the ACS on advice from the OFLC. The making of such a determination by the ACS is, accordingly, a precondition of the exercise of the power of the Attorney-General (or authorized person), under reg 4A(2) of the Regulations, to grant permission to import the relevant goods. It is not part of the Attorney-General's (or authorized person's) function, for the purpose of exercising the power conferred by reg 4A(2) of the Regulations, to determine whether the relevant goods fall within reg 4A(1A) and are thus "goods to which [that] regulation applies". Likewise it is not part of the Tribunal's function, when reviewing a decision made by the Attorney-General (or authorized person) under reg 4A(2) of the Regulations, to determine that question. The sole function of the Attorney-General (or authorized person) - and of the Tribunal on review - is to decide, pursuant to reg 4A(2), having regard to the matters specified in paras (a)-(e) of reg 4A(2AA), whether permission should be granted to import goods whose importation has been determined by the ACS to be prohibited under reg 4A.
12. In the present case a determination by the ACS that each of the publications falls within reg 4A(1A), and thus constitutes "goods to which [that] regulation applies", is not in evidence before the Tribunal. The advice of the OFLC to the ACS, dated 3 November 2000, to the effect that it recommended that each of the publications "be declared a prohibited import" on the basis that it fell within reg 4A(1A) of the Regulations, is, however, in evidence (T3, T10 - see paragraph 5 above). Moreover, the applicant's letter of 31 October 2001 to the Attorney-General (T5), wherein he requested the Attorney-General's permission to import the publications, acknowledges (in the opening paragraph) that the ACS "claim" that the publications are "prohibited imports" (see paragraph 6 above). Having regard to that material the Tribunal is prepared to infer, and finds, that the ACS made a determination, on a date between 3 November 2000 and 31 October 2001, that each of the publications falls within reg 4A(1A) of the Regulations and thus constitutes goods to which reg 4A applies. Accordingly, the discretionary power, conferred on the Attorney-General (or a person authorized by the Attorney-General) by reg 4A(2) of the Regulations, to grant permission to import the publications was enlivened in this case. The reviewable decision in this case, not to grant import permission in exercise of the discretionary power conferred by reg 4A(2) of the Regulations, was in fact made by the respondent in his capacity as a person authorized for that purpose by the Attorney-General under reg 4A(2A) of the regulations (see Exhibits R3 and R4).
THE SUBSTANTIVE ISSUE - SHOULD PERMISSION TO IMPORT EITHER OF THE PUBLICATIONS BE GRANTED TO THE APPLICANT?
The Applicant's Case
13. The applicant, in presenting his case in support of a grant of permission to import the publications, addressed the matters specified in paras (a)-(e) of reg 4A(2AA) of the Regulations. He generally reiterated, and elaborated upon, the matters referred to in his letter of 31 October 2001 to the Attorney-General wherein he requested permission to import the publications (T5 - see paragraph 6 above).
The purposes for which the publications are to be imported: reg 4A(2AA)(a)
14. In his written statement of his case (Exhibit A2) the applicant stated:
"I asked to import the goods for `my continued study'; which could include reading, acquiring knowledge (alone or in concert), and, reflection, discussion and analysis with colleagues and the public. As I stated in my application, the goods were for `furthering my profession as a storyteller, writer, and political activist' which includes contact with other storytellers, writers, and political activists. In particular, the book and magazine lets me learn about other people and their views. My storytelling and writing disseminates my own views. All very public occupations, and part of a conscious process directed at community education.
Written material spreads information. By not being allowed to read the materials in question, both I, and others in my circle of being, are denied access to this information, and to sharing this information; all an integral expression of our being."
In his oral evidence the applicant stated:
" I am a gay writer and I'm a political activist and I don't do this just - I mean a lot of writers I imagine, it is a very private event for them. I am also a storyteller, I go out to the public and I tell stories out loud and I - it is a really important issue to me. I think I've come to only want to write about and talk about gay issues and so to be able to read gay books is absolutely vital and I want to be able to talk to other people about gay books. I want to talk to people about the subject of inter-generational sex and I want to be able to give them a balance and particularly a gay point of view on the issues. And so to have books like Street Boy Dreams not allowed in, and it is not just Street Boy Dreams, there is other literature as well, is a huge hindrance to me. So, yes, it is for my own personal study. It is also I want to be able to disseminate ideas and have discussions in the public...".
(Transcript, p34)
The extent to which the applicant conducts activities of an artistic or educational, or of a cultural or scientific, nature to which the publications relate: reg 4A(2AA)(b)
15. In his written statement of his case (Exhibit A2) the applicant referred to his experience "of more than 30 years working as a schoolteacher, public educator, performer, community artist, arts animateur and administrator, writer, storyteller, political activist and community organiser". He tendered in evidence the following "resume of work" (Exhibit A1, document 32):
"2000-2002
* Writer...
Articles
3 completed manuscripts: Richard Johnson's Diary, The Journey of Little Frog, The Orphanage in the Hills.
Draft of A Storyteller's Cookbook.
* Convenor of the WA GAY MENS WRITERS GROUP.
1999
* Devised and participated in A STITCH IN TIME oral history project for The City of Perth, WA.
* Hitch-hiked across the Sahara and into West Africa.
* Storytelling for SHREWSBURY LITERATURE FESTIVAL, UK.
* Storytelling in libraries and schools, England
* Book Week (month) storytelling tour of WA schools and libraries.
* Workshop and performance for the AUSTRALIAN STORYTELLER'S GUILD National Conference.
1998
* Storytelling for Curtin University MUNDJAH FESTIVAL Reconciliation Project, WA.
* Storytelling for BLUES AT BRIDGETOWN festival, WA.
* Storytelling for the HAY CHILDRENS FESTIVAL, Wales.
* THE LANGFORD STORYTELLING EXPRESS with young people, Perth WA.
* Storytelling in schools and libraries, WA.
* Summer holiday storytelling for UNDERWATER WORLD, WA.
* Committee member of THE STORYTELLING GUILD OF AUSTRALIA (WA).
1997
* Langford after school storytelling project with GOSNELLS LIBRARY SERVICE, WA.
* Storytelling for THE STORYTELLING GUILD, WA.
* Storytelling in schools and libraries, Perth, WA.
* Community mural project with SAMBHAVNA Health Clinic, Bhopal, India.
* Storytelling for MIRAMBIKA, Free Progress School, Delhi, India.
* Storytelling and creative play activities with SALAAM BAALAK TRUST for street children, Delhi, India.
* Storytelling for GREAT ORMOND STREET CHILDRENS HOSPITAL, London, UK.
* Storytelling for FESTIVAL OF DOVER, UK.
1996
* Storytelling for deaf children and visit to community projects in The Gambia, West Africa.
* Collaboration with PARADA, devising arts activities with street children in Bucharest, Romania.
* Director street children's performance SIGHISOARA YOUTH FESTIVAL, Romania.
* Storytelling workshops at ARTS FOR EVERYONE conference for people with disabilities in Bakau, Romania.
* Storytelling workshops with AJUTORAL SCOTIAN EUROPEAN for professionals working with disabled children in Ionaseni and Botosani, Romania.
* Under Fives storytelling project, London UK.
* Storytelling for EDINBURGH CHILDRENS FESTIVAL, UK.
* Storytelling in schools, libraries and community centres in Britain.
1993-5
* Storyteller SCOTTISH INTERNATIONAL STORYTELLING FESTIVAL.
* Member of the SERIOUS ROAD TRIP tour of Romania taking circus and play activities to disabled and institutionalised children.
* Community storytelling project, leading to establishment of the LEWISHAM STORYTELLING CIRCLE, London.
* Storyteller BRENT FESTIVAL, London.
* Storyteller ISLINGTON LITERATURE FESTIVAL, London.
* Study tour and community storytelling, The Gambia, West Africa.
* Established BOOKS FOR GAMBIA project.
* Storytelling workshops for mentally disabled adults, for the GOLDSMITH PROJECT, London.
* Community project to build children's adventure playground THE JUNGLE, East End London.
* Drama workshops with Bengali youths, London.
* Storytelling in schools and libraries in Britain.
1990-92
* Storytelling in schools and libraries, Western Australia.
* Formed PIRATE RADIO STORYTELLERS performance group.
* Storyteller ADELAIDE FRINGE FESTIVAL.
* Drama workshops for mentally disabled adults, W.A. Dept of Health.
* Storytelling project TELLING TALES linking elderly and young people for Swan Valley Councils.
* Co-devised THE VOYAGES OF CHRISTOPHER COLUMBUS with Joan Pope for CATS.
1989
* Storytelling in schools and libraries, Scotland.
* Workshops for EDINBURGH PUPPET FESTIVAL.
* Performances and workshops for SCOTTISH INTERNATIONAL STORYTELLING FESTIVAL.
* Devised a play-in-a-park NESSIE REFUSES THE POLL-TAX for Lothian Council, UK.
* Member of the SCOTTISH COMMUNITIES AGAINST THE POLL-TAX COALITION.
1988
* Co-ordinator for CHILDRENS RAILWAY youth refuge, Sydney.
* Collaborated on self-advocacy project for homeless youths.
* Workshops on sexuality for Australian Men's Conference, NSW.
* Representative at INTERNATIONAL LESBIAN AND GAY ASSOCIATION Conference, Sweden.
1987
* Co-ordinator for CHILDRENS RAILWAY youth refuge, Sydney.
* Established a puppetry workshop employment project for homeless youths.
* Performance art project VIOLENCE IN BREAD devised with Christine Mearing.
1986
* Storytelling tour to WARAKUNA aboriginal community in Central Australia.
* Organiser for the NATIONAL LESBIAN AND GAY CONFERENCE, Melbourne.
* Australian representative at the ILGA Conference in Denmark.
* Observer/worker at youth refuge in Nuremberg, Germany.
* Established a refuge for homeless youths in Sydney.
1985
* Organiser with GAY SOLIDARITY GROUP and SYDNEY STONEWALL.
* Working with homeless youths in Sydney and Melbourne.
* Set painter with CIRCUS OZ.
* Drama workshops for JOHN CURTIN SENIOR HIGH SCHOOL, Perth WA.
* Organiser for the NATIONAL LESBIAN AND GAY CONFERENCE, Canberra.
1984
* Organiser within the gay community with GAY SOLIDARITY GROUP and SYDNEY STONEWALL.
* Working with squatting groups in Sydney.
* Actor in Aboriginal music film WRONG SIDE OF THE ROAD.
* Sign interpreter with the SYDNEY GAY QUIRE.
* Organiser for the NATIONAL LESBIAN AND GAY CONFERENCE, Sydney.
1983
* Community Artist with Mt Druitt Street Art Workers.
* Administrator for the GREAT WESTERN KIDS CIRCUS project.
* Study tour of Indonesia.
* Acted in film on single parenting for the Sydney Women's Centre.
* Convened the 5TH NOVEMBER DEFENCE GROUP supporting gay men charged with `conspiracy to corrupt public morals'.
1982
* Community artist with Mt Druitt Street Art Workers.
* Storyteller for the SYDNEY FESTIVAL.
* Group devised and acted in 2 films for the NSW Dept of Health.
* Joined the SYDNEY GAY QUIRE as sign interpreter.
1981
* Project leader and community artist with Mt Druitt Street Art Workers.
* Set up the GARAGE GRAFFIX community printing workshop.
1980
* Toured outback NSW with the BIG STORM project, a collaboration between Pipi Storm and Big Break.
* Member of the Sydney Gay Solidarity Group.
* Formed gay men's support group SYBOL.
* Storyteller for INTERNATIONAL BOARD ON BOOKS FOR YOUNG PEOPLE Conference, Sydney.
* Storyteller for WARATAH FESTIVAL, Brisbane.
* Worked with Ian and Narelle Reece's Community Arts Team.
* Storytelling tour of outback Queensland.
* Storytelling with Big Beak for the HOBART FESTIVAL.
* Scripted and directed THE GREAT BALLAGUNDI DAMPER BAKE for the Festival of Perth, WA.
* Mural painting project with Big Beak for BLACKTOWN CITY COUNCIL, NSW.
* Invited by Blacktown City Council to establish MT DRUITT STREET ARTWORKERS project.
1979
* Project leader with CARRINGBUSH COMMUNITY ARTS TEAM, Melbourne, VIC.
* Established BIG BEAK storytelling group with Carol Ruff.
* Storytelling and street theatre for the DARWIN YOUTH FESTIVAL.
* Youth drama project with CATS for the FESTIVAL OF PERTH.
* Worked with John and Sue Fox of WELFARE STATE (UK) on the WA leg of their Australian tour.
* Participated in the INTERNATIONAL PUPPET FESTIVAL, Hobart.
* Mural painting for SALAMANCA PLACE COMMUNITY ARTS, Hobart.
1978
* Invited to form a community arts team within the CARRINGBUSH REGIONAL LIBRARY with a special brief to work with young people in the area.
* Workshop in storytelling and youth theatre for VICTORIAN COLLEGE FOR THE ARTS.
* Actor in Peter Oysten's production of KING LEAR at Monash Theatre, Melbourne.
* Founding member of the COMMUNITY ARTS NETWORK and Chairperson of the Victorian branch of CAN.
1977
* Group devised performance AMY AIRHEART, Melbourne, Vic.
* Performance art at LA MAMA THEATRE.
* Community artist with THE MOONEE VALLEY REGIONAL LIBRARY SERVICE.
* Storytelling workshops for Melbourne State College.
1976
* Scripted and acted in PINNOCCHIO for Canberra Children's Theatre.
* Scripted and Directed THE JACK PLAY for Canberra Theatre In Education team.
* Set designer for Canberra Youth Theatre.
* Busking around Australia.
1975
* Activities Director with CHILDRENS ACTIVITIES TIME SOCIETY, WA.
* Participated in workshops with the CHESKOO RAREE SHOW.
* Actor in Jack Hibberd's THE LES DARCY STORY.
Thomas Kenneally's THE AWFUL ROSE.
THE LIONEL FARRELL HORROR SHOW.
Peter Handke's RIDE ACROSS LAKE CONSTANCE at the Hole In The Wall theatre, WA.
* Directed and group devised ANYTHING HAPPENED ON CLOUD NINE for Krate Theatre, WA.
1974
* Activities Director with CATS, WA.
* Drama teacher at GOVERNOR STIRLING SENIOR HIGH SCHOOL, WA.
* Played Horatio in HAMLET for WA Theatre Company.
* Actor in MR TRUMP at The Hole In The Wall theatre.
1973
* Activities Director with CATS.
* Drama specialist at THE SPEECH AND HEARING CENTRE school for deaf children, WA.
* Toured as Dr Coppelius in COPPELIA with Perth City Ballet Company.
* Played The Fool in KING LEAR for the ROUND EARTH THEATRE COMPANY, WA.
* Devised and acted in MR DODO AND THE BOAB TREE at the Playhouse, WA.
1972
* Activities Director with CATS.
* Directed OH WHAT A LOVELY WAR for Gorrilla Theatre, WA.
* Actor in Dorothy Hewett's premiere of CHAPEL PERILOUS at The New Fortune Theatre, WA.
1971
* Primary school teacher, Servite College, Perth WA.
1970
* ASM and then Stage Manager for the National Theatre at the Playhouse, Perth, WA.
* Scripted and directed THE COMMUNION OF HUSKED CORN for the Undergraduate Dramatic Society.
* Actor in CYRANO DE BERGERAC for the Festival of Perth"..
The applicant also tendered in evidence supporting documentation (more particularly referred to in his oral evidence - see below) confirming certain of his abovementioned storytelling activities in the period 1996-2000 (Exhibit A1, documents 33, 35-39). The applicant's oral evidence regarding this matter was as follows:
" ...I have, in the last couple of years, started writing, but up until then although I had written scripts for plays, my background was in school teaching. I was a schoolteacher and then I went into children's theatre and did a lot of script writing and then from that it was just a progression into story telling. But I go, often to libraries, I suppose more than any other venue and an audience usually of children, but also adults, like all sorts of people come in, often mixed audiences and I tell stories and usually, because it is my passion, folk stories and usually adapted and I am more and more interested in finding gay characters in folk stories, I guess, trying to unravel: was Hercules a gay character, for instance?
...
... I would without blowing my own trumpet, or whatever, I would say I was one of the major story tellers in English, for children. I have worked all around Australia. I have worked in every single major festival in Australia, not every school, but it must be coming close. I have worked all around Britain. Every major festival that accommodates story telling, certainly the biggest story telling festival in the world, in Edinburgh, I have more than once been invited there as a story teller. The biggest children's festival in Britain, which is attached to the Hay Literature Festival. I have been invited there more than once, as a story teller. I have worked in India as a story teller. I've done a lot of work with street kids, which is almost my interest in books like, Esser, because I understand from the way he writes, he has also had some kind of contact with street kids, he certainly writes about them as if they are real characters. So for instance, in India I was working with street children. I have worked for something like a year in Romania, with street children. It sounds funny for an English speaking Australian to be in Romania. I learnt enough Romanian to be able to tell stories, but usually I had a translator and in India I definitely had a translator working with me. There is a document 39, I am not suggesting you read it, but it is a report on one small project of my work in Romania, which, as you can see, is not just about oral story telling. The photograph on the front page is me and it is quite a long wall, me and some kids painting a mural which came from doing story telling projects with these children. I mean, 30 years, I can't remember all my 30 years of work, but you can see it there, it is huge. At the same time for something like 10 years, when I was living in Sydney, I was very, very active in the gay movement. This is my cultural activities, I suppose, political activities. I was involved in the organisation of lesbian and gay conferences, national conferences in Sydney, Canberra, Melbourne and Brisbane. I was involved in a number of gay organisations, Stonewall political organisation in Sydney. Gay Solidarity Group political organisation in Sydney. I was a sign language interpreter for the gay choir in Sydney. I was involved in running a youth refuge, which wasn't specifically for gay youths, but certainly was gay friendly, everybody knew that I was gay and so it certainly made it easier for gay youths.
...
My passion is finding folk stories and adapting them so that they make sense, I don't mean ruining them. I don't mean - not turning them into science fiction stories or something, but just so that they make sense to kids today, basically, or adults, or whoever it is that I'm telling stories to. So, yes, it is both. And it would probably - I don't know what my repertoire would be, more than hundreds, I would think, and in terms of the number of scripts that I've - I would - I imagine I have had, you know, 50 to 100 scripts performed by professional theatres, actors, in different countries around the world. I have also been an actor, I don't do that anymore, but I have also been an actor. There, just to leave document 32, the back of document 39, the last few pages are - I'm sorry about the - this photocopying is in fact the problem of the original. Romania is a very poor country, but they are references, if you like, people who - I mean I was funded to be there, yes, so I had to put in a report. This is a report to a funding agency. So these are people, organisations that I was working with. They are references from them, talking about my work in Romania.
What number is this?---Document 39.
Right?---And it is the last - the report on the story telling project in Romania and it is a document from Scottish European Aid, which was an organisation I worked with in the north of Romania. The next one, it is almost impossible to read, by a man called Varley, he was one of the actors I was working under, Romanian actor I was working with, he was from the National - worked with the National Theatre in Botosani. The reference - the next one from Fundata Parada, is the organisation I worked with in Bucharest, a street - though they were offering arts activities for street children and the last one is a youth worker from - an author - gay man from London, who came out to look at the work I was doing and wrote a little bit of a report about it.
...
Document 33, goes to the same matter, the extent of my work, it is just a letter from Edinburgh about - it is a thank you letter for work I had done. The second one is a little certificate given to me for some work, workshops I have presented in Canberra for the National - Australian National Storytelling Organisation.
The third one is a photograph from a Geraldton local paper, of some work I was doing up in Geraldton. A little note - the next one is a little note from Bunbury Libraries and a small article from a Bunbury paper, of some work I was doing in Bunbury and the last one there is - a Hilda Finley Award gets awarded each year in Western Australia by the Storytelling Guild of Western Australia to somebody that has contributed to story telling. Document 34 is in relation to applying to ArtsWA, the arts funding body in Australia, for a grant to travel to work at the Hay Children's Festival and that is a letter from them saying that I was successful, and then the following letters are letters of - I suppose they're like references of people, one from the Storytelling Guild supporting my application basically. One from the Town of Bassendean. One from a lecturer at Murdoch University, English drama lecturer. One from Cecily Scutt, who is a story teller. One from a woman who runs the Blues Festival in Bridgetown and also one from Neville Blampey, who is also a story teller. It is really just to prove that I - these are things in my CV that I have actually done. Document 35, refers to a project I was organising called: 2000 Stories and this was a project to happen over not just the metropolitan area, but country areas as well and so the Shire of Katanning was involved. There was a couple of references from them, from the arts officer and the librarian. There is a letter from the librarian in Lake Grace and from a youth worker in Lake Grace. There is a letter from TAFE, Manager of the TAFE out at the Aboriginal Ngaanyatjarra Community, Warburton in Central Australia and a letter from the library, Alexander Library, Children's Services. Am I going too fast?
No, that is fine?---Document 36 is just evidence of a project that I did with the City of Perth, it was funded by the City of Perth, well it even tells me how much. Me and a couple of other story tellers, it was called: A Stitch in Time and was supported by - and these are just letters of support from Bassendean. It was done in libraries mainly, City of Joondalup, South Perth, City of Gosnells, somebody else, Bunbury, Bridgetown Library, Collie Library, Geraldton Library again and Northam Library. Document 37 is all that is left of a little project I did in Africa, Gambia, West Africa. Document 38 is a report to the funding body, I think it was Gosnells Council, funded a project that I did at a school in Langford. A story telling project at a school in Langford, that is the report on it."
(Transcript, pp36-39).
The reputation of the applicant, both generally and in relation to his relevant artistic, educational or cultural activities: reg4A(2AA)(c)
16. Included in the material tendered in evidence by the applicant were 3 recent character references - from a London-based author, a Senior Lecturer in Sociology at The University of Newcastle (NSW), and a Lecturer in Nursing at Curtin University of Technology (WA) (Exhibit A1, documents 41-43) - together with 6 references (dated April 1998) supporting the applicant's application to ArtsWA for a financial grant to assist him to conduct workshops in storytelling at the Hay Children's Festival in the United Kingdom, and a letter dated 5 May 1998 from the Director of ArtsWA informing the applicant that a financial grant to him had been approved for that purpose (Exhibit A1, document 34). The Tribunal notes that Exhibit A1 also contains numerous other documents which also tend to confirm the applicant's reputation in relation to, in particular, his storytelling activities in 1999 and 2000.
The ability of the applicant to meet conditions that may be imposed under subreg (3) in relation to the publications: reg 4A(2AA)(d)
17. In his written statement of his case (Exhibit A2) the applicant stated:
"The Respondent has never provided me with details of what conditions might be required. However, I see no reason why I would not be able to meet any conditions that might be imposed. If necessary, the materials could be kept in a locked cabinet within my lockable office. Surely no lawyer or academic has any better security. I am able to undertake not to show them to any other person."
He reiterated that statement in his oral evidence.
Other relevant matters: reg 4A(2AA)(e)
18. In his written statement of his case (Exhibit A2) the applicant stated:
"Neither the Attorney General nor the Respondent considered the Applicant's particular request for the Attorney General to recognise that the publications are not prohibited imports.
The Applicant contends that the Classification Board's finding that the books be Refused Classification is flawed, and notwithstanding this, cannot be an impediment to an application for permission to import the publications.
...
The Respondent has given no evidence of community concern which might exist about the abuse of children, and more importantly there is no evidence that either publication has, can or does abuse children. And, as I argue at Section 11.15 - 11.28, there is no evidence that written materials like the goods in question ever do abuse children.
Furthermore, as I argue in Section 11, I believe that I have a right under the Australian Constitution, despite or even because of the subject matter of the publications, to import, read and discuss them."
[The Tribunal has had regard to Section 11 of the applicant's written statement of his case, but it is unnecessary to set it out here.] The applicant reiterated the above comments in his oral evidence.
The Applicant's Evidence in Cross-examination
19. The applicant was questioned about his self-description as a "political activist". He confirmed that, in the past and at the time when he sought the Attorney-General's permission to import the publications, his political activism involved agitating for a change in the law regulating gay sexual behaviour. He added that his political activism is presently involved with gay writing and that he is "more involved with issues rather than laws". "Gay sexuality", he said, "shouldn't be, but is, a political issue". Asked to explain the connection between the publications and his political activism, the applicant said that the magazine "Koinos 26" is "a political magazine" and is "about political issues". He referred to the contents of that magazine as follows:
"There is something here that is about - it is called: `The Spirit of the Times Determine Moral Values', I mean it is a political issue, moral values are a political issue. I haven't read the article. 20 years ago you could buy magazines which are now illegal, okay. There is some kind of moral issue there, yeah. I'm not saying that I agree with it or disagree with it. I'm just saying this is something I know I would find interesting on a political level. I would actually find everything on a political level. I would find the story, the first bit is a story, I can't remember what it is about, I think it is about an artist or something. But if you take the point of view that all actions are political actions then they might not have anything to do with the law but they have got to do with politics, meaning the way people interact with each other. The taking of photographs is a political action, you know, generally I don't like the way people take photographs of children and so I look at them very critically of what do they actually mean, what is the sub-text in these photographs, yeah, and so I find that interesting---
And what---?---No. I'm not going into the sub-text at the moment. I couldn't. `Coming of Age in Freedom: Still a Long Way to Go'.. It is obviously about changing the laws on the age of consent which I would find interesting. `Youth Sex Under Attack', I would find that very interesting. I've long been an advocate that young people should be allowed to determine their sexuality. I don't know about the advertisements. I find that a very political photo, for instance. I would be very interested in having discussions with people about the politics of that photo."
(Transcript, p73)
20. The applicant was next questioned about his storytelling activities. He said that storytelling has been his living for more than 30 years. He said that the bulk of his storytelling has been performed for children but that on occasions he has performed for adult audiences. Asked to what extent the contents of each of the publications informed the content of his storytelling, the applicant responded:
"Yeah, it is hard to answer, it is hard to quantify it, it is an interesting question, it is really hard to quantify, I've never thought. On the one hand I could say that my sexuality, in its broader sense, I don't mean just about having sex with someone else, informs everything I do and is a major component of my storytelling. I also would say that when I am preparing a story, I might research a story for two years, in which time I might have read, you know, I read about three books a week, I suppose, on an average. So to say the amount that one of those books has influenced a storytelling that happens two years later, it might have actually had a huge influence, which I don't realise.
Well, perhaps I could put it this way. To what extent...?---I tell you what, these magazines and that book are influencing my storytelling almost 100 per cent at this very moment. But that is because this case is going on, that is because they become important.
Well, would you say that a high, low, or medium proportion of your storytelling, at the moment, or these days, concerns the theme of inter-generational sexual relations between males?---Yeah, high.
A high proportion?---High.
And so would it be fair to say that this magazine, this book, they are, together with all the other magazines and books and other materials that you have regard to, are source material?---I don't, as regards that book, or this - you mean?
...
I am just referring to the two publications in question. I am asking you, are these, in effect, material, to some extent, for your stories?---It is hard to answer. I'm not trying not to answer, it is not that I don't want to answer, it is like where do ideas and where do thoughts and where do things come from, and these issues are really important to me.
Well, would you agree with this proposition, that if - if they are not material for your stories, then your claim to - permission to import these publications, because you are a storyteller, falls away?---I think you're trying to make something that doesn't even begin to exist, you know, you are trying to make an argument that doesn't - I don't mean legally, I just mean in the sense of - you know - I've - I've got a book here, I didn't - this is - it has just come back from the publishers, actually. This is trying to answer your question. Now, I don't think I wrote in the back. Often when I'm writing books, I put my references, like I write novels, but I put the references. To write that book, which is about a relationship between a man and a boy, I have read hundreds of books that influenced it--".
(Transcript, pp76-77). The applicant added that nowadays he does "very little oral storytelling", having been "black-listed" by the Minister for Education from performing in Government schools a couple of years ago, and has instead been engaged in writing.
21. The applicant could not recall when he last performed storytelling for a living and confirmed that he presently had no storytelling engagements but said that he had "some planned". He added that "the planning [is] part of the storytelling".. As regards his writing, the applicant said that he had 3 manuscripts that were "completely finished", one that is "almost finished", and one that is "dragging on", and he confirmed that those manuscripts dealt with the subject of inter-generational gay relationships. He said that he had no contracts to publish any of those manuscripts. He also confirmed that his present income comprises social security payments.
The Evidence of Stuart Pekin
22. Stuart Pekin told the Tribunal that he owns a bookshop in Perth and that he knows the applicant as "a long term customer" of his shop and "someone with a definite interest in writing" and who has started a local writers' group. He added that he allows his bookshop to be used as a venue for meetings of that group. He described the stock of his bookshop as follows:
"Primarily second-hand book dealer with some element of new material as well. I have aimed for a more literate market, I suppose, a heavy emphasis on architecture, design, art, autobiographies, apart from that just general fiction and a fairly large gay and lesbian content as well."
(Transcript, p46). He said that, whereas 10-15 years ago there were about 10 bookshops in Perth with "fairly large holdings" of gay material, now there are only 5 or 6.
23. Mr Pekin gave general evidence regarding the purchasers, and the relative lack of availability, of gay literature, and expressed opinions regarding the authors and contents of certain books specified in a list which had been compiled by the applicant. It is unnecessary to set out that evidence here.
The Submissions
24. Mr Jenshel (for the respondent) made oral submissions addressing, in particular, the matters specified in paras (a)-(e) of reg 4A(2AA) of the Regulations as follows:
* the purpose for which the publications are to be imported is to inform the applicant of "themes in gay discourse, in literature and art generally" for the purposes of his artistic and cultural pursuits, but that they would not constitute a large, or an especially important, part of the information that is already available to him for those purposes, and neither of the publications is critical to his artistic or cultural activities;
* the publications would not inform the applicant's political activism; any connection between the publications and the applicant's storytelling activities is weak and lacks "immediacy", given the applicant's present relative inactivity in storytelling; likewise, the applicant's lack of published manuscripts, and of publishing contracts, are factors militating against the applicant's case regarding the relationship between the publications and his writing activities;
* the letters of commendation and acknowledgment regarding the applicant's storytelling activities relate to an earlier period when those activities were at their "zenith" and do not reflect his present reputation in relation to storytelling activities (which have largely ceased);
* other relevant matters for the Tribunal to consider include the quality and content of each of the publications, as regards the criteria specified in paras (a) and (b) of 4A(1A) of the Regulations whereby they were each declared to be a prohibited import, and the presence or absence of any public benefit which would result from a grant of import permission to the applicant.
25. The applicant filed substantial written submissions relating not only to the matters specified in paras (a)-(e) of reg 4A(2AA) of the Regulations, but also to various issues that are not relevant to the present application for review. As regards the relevant matters, the applicant's submissions may be summarised as follows:
* the general purpose for which the publications are to be imported, namely, his "continued study of relationships between gay men and youths in furthering [his] profession as a storyteller, writer and political activist", is a legitimate one which fits squarely within the "artistic", "educational" and "cultural" purposes referred to in para (b) of reg 4A(2AA);
* almost the whole of his life's work as an artist, a storyteller, a political activist and a writer has been about inter-generational relationships from a gay perspective - the very issue to which each of the publications relates - and access to the publications is very important, if not critical, to his work such that his work will be seriously impaired if he is denied such access;
* the numerous references and commendations tendered in evidence attest to his established national and international reputation as "a well-known and respected children's storyteller, having performed at all the major storytelling, children's and arts festivals in Australia, and in the United Kingdom, as well as in India, Portugal, Romania, West Africa and other countries", and he intends to continue his career as a professional storyteller in the future;
* he is willing and able to comply with any conditions that may be imposed in connection with a grant of permission to import the publications;
* to the extent (if any) that public benefit is a relevant consideration, his work as a storyteller, writer and political activist has always been in the public domain and for the public benefit; and the discussion of gay inter-generational sexual relations is, furthermore, a matter of public interest;
* on the basis that each of the publications falls within para (a) and/or para (b) of reg 4A(1A) of the Regulations (which he denied), neither of the publications can reasonably be described as grossly offensive to reasonable adults: Street Boy Dreams, which is a novel with fictional characters, falls historically and morally within the bounds of mainstream gay literature, in particular, that genre of gay literature dealing with inter-generational sexual experiences; "Koinos 26" does not promote child sexual abuse or inter-generational sexual relationships but supports the right to argue for a "nuanced view" of such relationships;
* each of the publications is less offensive to reasonable adults than many other imported publications which have not been declared to be prohibited imports and which are readily available;
* to grant permission to the applicant to import the publications would not defeat the purposes of the Regulations; nor would it "open the floodgates" to child pornography or child abuse material entering Australia.
Consideration
26. The Tribunal will first consider the relevant matters specified in paras (a)-(e) of reg 4A(2AA) of the Regulations and it will then determine whether, having regard to those matters, permission should be granted, pursuant to reg 4A(2) of the Regulations, to the applicant to import each of the publications.
27. The Tribunal accepts the applicant's evidence and submissions regarding the purposes for which each of the publications is to be imported, and it accepts that those purposes are, in themselves, bona fide and legitimate and are inextricably linked with the applicant's pursuit of - or, at least, his desire to pursue - storytelling, writing and gay political activism. On the other hand, the Tribunal is not satisfied that either of the publications is essential to the applicant's pursuit of those activities or, indeed, that the applicant's pursuit of those activities would be significantly adversely affected if permission to import either or both of the publications was not granted to him.
28. The Tribunal accepts the applicant's evidence regarding his career since 1970 (as outlined in his resume [Exhibit A1, document 32] set out in paragraph 15 above) and accepts that his storytelling, writing and political activism constitute "activities of an artistic, or educational, or of a cultural..., nature" within the meaning, and for the purposes, of para (b) of reg 4A (2AA) of the Regulations. The Tribunal notes, however, that the applicant has been relatively inactive as a storyteller since 2000 and that, as regards his writing activities, his manuscripts have not been published and are not presently the subject of any publishing contracts. Furthermore, because (as noted in the preceding paragraph) neither of the publications is, in the Tribunal's opinion, essential, or even of significant importance, to the applicant's pursuit of storytelling and/or writing activities, or of his gay political activism, any existing relationship between each of the publications and those activities is neither necessary nor substantial but is, rather, loose and general.
29. The applicant tendered in evidence much material in support of his national and international reputation as a storyteller covering the period 1996-2000, and the Tribunal has no hesitation in accepting that, certainly up until the year 2000, the applicant enjoyed an excellent reputation, both nationally and internationally, as a professional storyteller, whether performing to an audience of children or of adults. The Tribunal is, furthermore, prepared to accept, notwithstanding the applicant's own evidence that he is presently banned from performing in public schools in Western Australia, and notwithstanding his relative inactivity as a storyteller since 2000, that he continues to have a high national and international reputation as a professional storyteller. The applicant also tendered in evidence 3 recent references from professional people attesting to his good character and reputation, and, in the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a person of good character and reputation. The Tribunal reiterates, however, that the activity of storytelling, regarding which the applicant has a high national and international reputation, is an activity to which each of the publications is only loosely and generally related.
30. The Tribunal accepts the applicant's evidence that he is willing to meet any conditions, in relation to each of the publications, that may be imposed on him in connection with a grant of permission to import each of the publications. As regards his ability to do so, however, this matter is somewhat speculative in the absence of knowledge of the nature of such conditions but the Tribunal has no reservations regarding the applicant's willingness to meet any such conditions to the extent of his ability to do so.
31. In the Tribunal's opinion the discretionary power, conferred by reg 4A(2) of the Regulations, to grant permission to import goods, whose importation is otherwise prohibited by reg 4A by reason of their "objectionable" nature as particularised in paras (a)-(e) of reg 4A(1A), should not be exercised lightly or in such a way as would defeat or undermine the evident intention of s50 of the Act, and of the Regulations made thereunder, that such "objectionable" goods should generally not be allowed to enter Australia. In other words, as the terms of reg 4A(2) itself make clear, that discretionary power operates as an exception to the general rule prohibiting importation of "objectionable" goods and accordingly, in the Tribunal's opinion, its exercise should be confined to exceptional circumstances such as would, having regard to the considerations specified in paras (a)-(e) of reg 4A(2AA) of the Regulations, justify a grant of permission to import such goods notwithstanding their "objectionable" nature.
32. The circumstances of the present case - given, in particular, the absence of a necessary or substantial relationship between each of the publications and the applicant's storytelling, writing and political activism - are, in the Tribunal's opinion, not so exceptional or compelling as would warrant a grant of permission to the applicant to import either or both of the publications (which have been determined by the ACS, on the advice of the OFLC, to fall within paras (a) and/or (b) of reg 4A(1A) of the Regulations and thus to constitute prohibited imports).
33. The applicant invited - indeed, urged - the Tribunal to find that neither of the publications falls within paras (a) and/or (b) of reg 4A(1A) of the Regulations. For the reasons stated earlier (see paragraph 11 above), however, the Tribunal has eschewed a consideration of that issue because such a consideration would, in effect, involve a review of the determination of the ACS that each of the publications does fall within paras (a) and/or (b) of reg 4A(1A) and is thus a prohibited import, and that would exceed the scope of the Tribunal's jurisdiction and authority pursuant to reg 4A(4) of the Regulations. Likewise, it is not part of the Tribunal's function, pursuant to reg 4A(4), to judge whether or not the ACS's determination (based on the advice of the OFLC) constitutes arbitrary or unreasonable censorship and deprivation of (what the applicant regards as) his right to possess, and to read, each of the publications.
Conclusion
34. Accordingly, having regard to the matters specified in paras (a)-(e) of reg 4A(2AA) of the Regulations, as considered and discussed in paragraphs 27-33 above, the Tribunal determines that it is not appropriate that permission be granted, pursuant to reg 4A(2) of the Regulations, to the applicant to import either of the publications.
DECISION
35. For the above reasons, the Tribunal affirms the decision under review.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President and Dr D Weerasooriya, Member
Signed: ...............(sgd V Wong)...............................
Associate
Date/s of Hearing 11,12 December 2002
Date of filing of submissions 16 January 2003
Date of Decision 14 November 2003
Counsel for the Applicant In person
Counsel for the Respondent Mr A Jenshel
Solicitor for the Respondent Australian Government Solicitor
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URL: http://www.austlii.edu.au/au/cases/cth/AATA/2003/1149.html