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Administrative Appeals Tribunal of Australia |
Last Updated: 12 September 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION |
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Re |
ESIN HUSEYIN |
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And |
DIRECTOR OF THE CLASSIFICATION BOARD |
Tribunal |
Mrs Joan Dwyer, Senior Member |
Decision
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The Tribunal affirms the decision under review. |
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CUSTOMS - refusal of permission to import goods which may be prohibited goods - application to import DVDs which instruct in matters of violence - no inspection of the goods in question - no decision that they are prohibited goods - Customs (Prohibited Imports) Regulations 1956 - decision made under r 4A(2) - consideration given to factors under r 4A(2AA) - the purposes for which the goods are to be imported - the extent to which the applicant conducts activities of an artistic, educational, cultural or scientific nature - the reputation of the applicant - the ability of the applicant to meet conditions imposed under r 4A(3) - any other relevant matters.
PRACTICE AND PROCEDURE - identification of proper respondent - confusion in application of the Regulations - recommendation of amendment to sub-regulation 4A(1A)(d) - whether respondent has power to make decision without prior decision that goods are goods to which sub-regulation 4A(1A) applies - interpretation of sub-regulation 4A(1A) - use by respondent of guidelines which appear to modify meaning of paragraph 4A(1A)(d) - guidelines not made available to applicant - suggestion that amendments to regulations be considered.
Classification (Publications, Films and Computer Games) Act 1995 s.45
Customs (Prohibited Imports) Regulations 1956 rr 4A(1A), (2) and (2AA), 4A(1A)(a)
Re Creek and Office of Film and Literature Classification (2001) 66 ALD 733
Re Moore and Attorney General's Department (1995) 21 AAR 190 (No 1)
Re Moore and Attorney General's Department (1996) 39 ALD 655 (No 2)
11 September 2003 |
Mrs Joan Dwyer, Senior Member |
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INTRODUCTION
1. This is an application for review of a decision refusing to grant Mr Huseyin permission to import a series of six Vale Tudo Brazilian Jiu Jitsu DVDs, which may otherwise be "prohibited goods" under the Customs Act 1901 ("the Act"). The decision is set out in a letter of 31 January 2003 (T6 p28) which, so far as relevant, reads:
I refer to your letter received 16 December 2002 requesting permission to import items which may contravene Regulation 4A of the Customs (Prohibited Imports) Regulations 1956, namely:
Mario Sperry's Vale Tudo Series 1
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(2AAA) of the Customs (Prohibited Imports) Regulations.
2. Mr Huseyin raised a number of issues about apparent inconsistencies in the application by the respondent decision-maker, of the Customs (Prohibited Imports) Regulations 1956 ("the Regulations"). While there is some merit in some of the arguments raised by Mr Huseyin, they do not establish that the decision not to grant him permission to import the videos into Australia should be set aside or varied. The decision under review is therefore affirmed.
FORMAL MATTERS
3. Mr Huseyin applied under r 4A(4) of the Regulations for review of a decision made on 31 January 2003 refusing to grant him permission to import the DVDs.
4. The decision was made by the Director of the Classification Board established under s 45 of the Classification (Publications, Films and Computer Games) Act 1995 ("the Director"). By virtue of his office he is "an authorised person" for the purposes of r 4A(2). The Director is authorised to grant permission to import goods, the importation of which would otherwise be prohibited.
5. Mr Huseyin appeared and gave evidence. Ms E Nance, a solicitor with the Australian Government Solicitor appeared for the respondent. The Director, Mr Clark, gave evidence over the telephone. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing.
6. The respondent was described in the file before the Tribunal as "Office of Film and Literature Classification", but should, in accordance with s 30(1)(b) of the AAT Act, have been the decision-maker. I arranged for the District Registrar to write to the Australian Government Solicitor's Chief Executive Officer asking whether it was her view that the proper respondent is the Attorney-General, as stated in r 4A(4), or the Director, as the authorised person who made the decision. The Australian Government Solicitor replied:
We are instructed to advise that the Respondent considers that his appropriate title is "Director of the Classification Board".
Accordingly I have directed the District Registrar to amend the description of the respondent in this proceeding to Director of the Classification Board.
THE RELEVANT LEGISLATION
7. The Act, in s 50, makes provision for goods to be "prohibited goods". It provides:
(1) The Governor-General may, by regulation, prohibit the importation of goods into Australia.
(2) The power conferred by the last preceding subsection may be exercised:
(a) by prohibiting the importation of goods absolutely;
(aa) by prohibiting the importation of goods in specified circumstances;
(b) by prohibiting the importation of goods from a specified place; or
(c) by prohibiting the importation of goods unless specified conditions or restrictions are complied with.
8. The Regulations provide in r 4A(1A), (2) and (2AA):
(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
(c) in relation to a computer game -- are unsuitable for a person under 18 to see or play; or
(d) promote, incite or instruct in matters of crime or violence; or
(e) promote or incite the misuse of a drug specified in Schedule 4.
(2) The importation of goods to which this regulation applies is prohibited unless a permission, in writing, to import the goods has been granted by the Attorney-General or a person authorized by the Attorney-General for the purposes of this subregulation.
(2AA) In considering whether to grant a permission under subregulation (2), the Attorney-General or the person authorised by the Attorney-General is to have regard to:
(a) the purposes for which the goods are to be imported; and
(b) the extent to which the person to whom any permission to import the goods would be granted conducts activities of an artistic or educational, or of a cultural or scientific, nature to which the goods relate; and
(c) the reputation of the person referred to in paragraph (b), both generally and in relation to an activity referred to in that paragraph; and
(d) the ability of that person to meet conditions that may be imposed under subregulaton (3) in relation to the goods; and
(e) any other relevant matters.
THE ISSUE
9. The issue in this matter is whether the decision made under r 4A(2) not to grant Mr Huseyin permission to import six DVDs which he described as "instructing in Vale Tudo, the most violent form of Brazilian Jiu Jitsu", is the correct or preferable decision. Regulation 4A(2AA) sets out four matters to which regard is to be had in making a decision whether or not to grant permission to import goods to which the Regulation applies. It also provides that regard may also be had to "any other relevant matters".. Where such permission is not granted, the importation of goods to which r 4A applies is prohibited.
10. The Director said that there are not many cases where permission is sought to import goods under r 4A(2). He estimated that there would have been approximately ten such applications this year, but he said they are usually made by an organisation such as a research or cultural organisation rather than an individual. It seems that there have been very few Tribunal decisions arising from applications under r 4A(4). There has therefore been little review of the system. To some extent it appears to operate in an informal, and maybe practical and sensible way, but one which is not clearly spelt out in the Regulations. That creates some confusion.
THE SCHEME OF THE ACT AND REGULATIONS AND THE JURISDICTIONAL ISSUE
11. It is difficult to discern the scheme of the Act and Regulations in regard to the importation of prohibited goods, particularly in a case such as this where permission to import is sought prior to any decision being made as to whether or not the goods are "prohibited goods". The evidence established that the Director's decision not to grant that permission was made without him or anyone else having decided that r 4(1A) applies to the goods.
12. In this matter the goods have not been imported. They have not been purchased by Mr Huseyin. There has been no inspection of the goods in question and no decision has been made that they are "prohibited goods" or goods to which r 4A(1A) applies. Mr Huseyin has sought permission to import the goods prior to making arrangements to do so. He has adopted that course because he previously attempted to import videos which instructed in violence, and they were seized.
13. The Director has not seen the DVDs. Nor has he received any recommendation or advice from any person who is familiar with their content. He explained in his evidence that he does not have power to decide whether goods are "prohibited goods". It is the Director's understanding that his appointment as an "authorised person" for the purposes of r 4A(2) allows him to grant permission under r 4A(2), but not to decide whether r 4A(1A) applies to the goods. He explained that if he grants permission then, even if r 4A applies to the goods their importation is not prohibited. He said that the Classification Board of which he is Director has a responsibility to make recommendations to the Australian Customs Service as to whether seized films, literature, videos, DVDs and computer games "contravene" r 4A. His evidence was that the decision whether the seized goods are "prohibited goods", is made by the Collector of Customs after considering the recommendation of the Classification Board.
14. It is not clear from a reading of r 4A(2) that it envisages permission being given to import goods prior to their arrival in Australia, and prior to the goods being inspected either here or in another country, and prior to any decision being made as to whether or not r 4A(1A) applies to them. Paragraph 7 of the respondent's Statement of Facts and Contentions reads as follows:
The decision under review is not a consideration of whether the goods sought to be imported by the Applicant are prohibited goods; such a decision, once made, is properly reviewable under s.208A [sic] of the Customs Act 1901. Rather, the question to be determined by the Tribunal is whether permission should be granted pursuant to subregulation 4A(2A) notwithstanding that the goods in question are prohibited imports: Re Moore and Attorney-General's Department (1996) 39 ALD 655,658.
Thus my preliminary view was that Mr Clark's power to give permission depended on a decision first having being made that r 4A applied to the goods. I was troubled that no such decision had been made.
15. However, Ms Nance acknowledged that paragraph 7 quoted above was incorrect, both in its reference to s 208A of the Act, which has been repealed and in stating that "the goods are prohibited goods".. The confusion arose because of a failure to appreciate the distinction between this matter and the only similar reported decisions of Re Moore and Attorney General's Department (1995) 21 AAR 190 (No 1) and Re Moore and Attorney General's Department (1996) 39 ALD 655 (No 2) and also Re Creek and Office of Film and Literature Classification (2001) 66 ALD 733.
16. In both those matters the applicants had attempted to import the goods in question. The goods had been seized by the Australian Customs Service and a decision had been made that they were "prohibited goods" as defined in r 4A(1A) and (2). It was only after the seizure and the decision that the goods were "prohibited goods", that the applicants applied under r 4A(2) for permission to import the goods.
17. The Director, in his evidence, explained the scheme of the Act and the Regulations, and his use of the word "may", when he wrote that the goods "may contravene Regulation 4A", in his decision of 31 January 2003 (T6 p23). Similarly in paragraph 12 of his reasons the Director stated:
In the application Mr Huseyin stated that he wished to import the goods "for the purpose of self defence, confidence building and entertainment/recreation." In support of his claim Mr Huseyin annexed a copy of an advertisement for the goods. I reviewed the advertisement which promotes the goods as being able to assist in the development of `street fighting skills'. The advertisement contained numerous aggressive references including "punishing striking techniques", "easily finish the fight", "new arsenal of weapons", "devastating strikes to set your opponent up for chokes, armbars and leg locks". There are no advertised references to techniques for defending against or avoiding aggressors. In these circumstances it is likely that the goods would be used to instruct in matters of violence. Indeed Mr Huseyin stated that he intended to use the goods as a substitute for attending lessons in Vale Tudo. (emphasis added)
18. It was the Director's view said that the legislative scheme envisages the authorised person having power to grant permission to import goods which "may" or "appear likely" to be goods to which r 4A(1A) applies. He said that this means that goods imported for a specific purpose, for example as evidence in a court hearing, can be imported without the delay that would otherwise occur if the goods were seized at the border and then application had to be made under r 4A(2) for permission to import them. Once permission is granted the goods will not be prohibited goods, even if r 4A(1A) applies to them. If Mr Clark's contention is correct, I suggest that the point could be clarified by amendment of the Regulations.
19. I have formed the view that it is not necessary for me to decide the question of construction of the Regulations in this matter. There seems to be no doubt that the DVDs in question do "instruct in matters of violence".. Mr Huseyin readily accepted that as an accurate characterisation. Thus r 4A(1A)(d) applies to them and the Director clearly had power to make a decision whether to give permission, in writing to import the goods.
20. The Director relied on r 4A(1A)(d) in his statement of reasons. However, the recommendation to him from the Office of Film and Literature Classification (T5 at p21) also referred to r 4A(1A)(a). It stated:
I have sought the opinion of the Classification Education Manager in relation to Mario Sperry's Vale Tudo Series 1. She is of the opinion that based on the limited information available, one or more of the series of 6 tapes may be considered as `borderline' and due to their instructional emphasis, particularly in relation to street fighting, may in fact fall under Regulation 4A(1A)(d) - "promote, incite or instruct in matters of crime or violence" or Regulation 4A(1A)(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." The Classification Education Manager also noted that the advertisements appeared to focus heavily on aggressive or attacking techniques rather than self-defense or avoiding conflict.
21. The test in r 4A(1A)(a) is whether the goods "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." That is of course a much more difficult test to apply. I doubt whether a decision-maker could make a decision on that issue without viewing the goods or being advised of their content by somebody who had viewed them. Alternatively, the person seeking permission may be prepared to concede that r 4A(1A)(a) applied to the goods.
22. If, after goods have been seized, permission is subsequently sought under r 4A(2) to import the goods, as in Re Moore and Re Creek, the goods will have been viewed and an opinion will have been formed as to their content (see Re Moore (No 2) paragraph 11, p 658 and Re Creek paragraph 16 and 17).
23. In this matter the Director said that no decision has been made that the DVDs are "prohibited goods". Nor did he decide that r 4A applies to them. He said that the refusal of permission to import goods does not automatically make them "prohibited goods".. Mr Huseyin would be entitled to arrange for the DVDs in question to be sent to him in Australia, but he would face the risk of them being seized and declared to be prohibited goods. If that occurred, Ms Nance said that Mr Huseyin could challenge that seizure, but she did not take the Tribunal to the relevant provisions in the Act. A challenge of the decision that goods are "prohibited goods" may be more likely to be successful where a decision is made that r 4A(1A) subparagraphs (a), (b) or (c) apply to the goods, than where the relevant subparagraph is (d). Each of subparagraphs (a), (b) and (c) contains a qualifying provision which depends on matters of opinion. Paragraph (d) has no such qualification.
24. In subparagraph (a), the test is whether the goods "offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should be imported". In subparagraph (b), the test is whether the goods are "likely to cause offence to a reasonable adult". In subparagraph (c) the test is whether a computer game is "unsuitable for a person under 18 to play".
25. In subparagraph (d), the question, so far as relevant to this matter, is solely whether the goods "promote, incite or instruct in matters of crime or violence".. Mr Huseyin acknowledged that the goods he sought permission to import do "instruct in matters of violence".
26. I have some difficulty accepting that under the Regulations, the Director, as a person authorised for the purposes of subregulation 4A(2), has the power to decide whether or not to grant permission to import goods to which subregulation (1A) may apply, without any decision being made by him or any other decision-maker that r 4A does apply to the goods. However I am prepared, for the purposes of this matter, to act on the basis that not only is that how the scheme of the Act and Regulations is applied, it is also in accordance with the Regulations. Mr Huseyin did not challenge that interpretation and he made it clear that he preferred to seek permission in advance of importation, rather than to again have goods seized and be faced with deciding whether to challenge the seizure.
THE APPLICATION OF REGULATION 4A(2AA)
27. Accepting for the purpose of this matter, that the Director did have power to make a decision whether or not to grant permission to Mr Huseyin to import the six Mario Sperry DVDs, it is necessary to consider whether his decision was the preferable decision.
28. As background to that issue, it is helpful to give a description of the six DVDs. They were described in Attachment 1 to Mr Huseyin's letter of December 2002 (T4 p9) as follows:
Mario Sperry Vale Tudo Series 1
Tape 1 Vale Tudo Takedowns
Tape 2 Defeating the Guard
Tape 3 The Crossbody and Knee on Stomach
Tape 4 The Vale Tudo Mount
Tape 5 Fighting from the Back
Tape 6 The Vale Tudo Guard
29. Mr Huseyin, in his letter seeking permission to import the DVDs, described them as follows (T4 pp5-6):
Firstly I would like to state that the series of DVDS (refer to attachment 1) that I wish to import DO NOT give instructions regarding the use of guns, knives, batons or any other weapons. The instruction given is restricted strictly to unarmed self defence only.
The DVDs in question give instruction in a martial art/sport called Vale Tudo. Vale Tudo is the full contact version of Brazilian jiu-jitsu. It includes strikes, chokes, take downs, joint locking techniques and defences against such techniques. It excludes "dirty tricks" such as eye gouging, hair pulling, bitting (sic), scratching and attacking the groin.
30. The person who wrote the memorandum (T5) recommending to the Director that he not grant permission to import, advised as follows:
Mario Sperry's Vale Tudo Series 1 consists of a series of 6 videotapes and has not been previously classified or referred for advice to the OFLC by ACS. A search of related Internet sites show that Mario Sperry is an established master of Brazilian Jiu-Jitsu and considered as one of the greatest Brazilian fighters of all time. He has numerous accomplishments in legitimate Sport Jiu-Jitsu and more recently competed successfully at a number of `no holds barred' caged combat and submission wrestling tournaments. He currently markets a series of instructional videos that are advertised as "smashing all barriers of secrecy and knowledge of what it takes to win in the street or the Octagon"
The OFLC Classification Database contains 1 record of a film related to the fighting discipline Vale Tudo - T02/879 World Vale Tudo Championship XII (said to be PROVING GROUND) classified as M15+ Low Level Violence. This film appears to differ from Mario Sperry's Vale Tudo Series 1 in that it is an exhibition of Vale Tudo fighting contests rather than a detailed instructional series.
31. In deciding whether to grant permission to import the DVDs regard must be had to the matters in subregulation (2AA).
32. As to factor (a), Mr Huseyin, in his letter (T4) and in evidence, said that he wants to import the DVDs "for the purpose of learning self defence, confidence building and entertainment/recreation". He explained that he knows how to avoid 95% of aggression, for instance by not frequenting bars and nightclubs, but that he also needs to learn how to defend himself should somebody attack him. He said he is of a peaceful nature and would not use his skills to start any aggression, but if somebody were aggressive to him, he would need to defend himself. He explained that in a violent situation you must do what is required to finish the fight quickly. He said to successfully defend yourself you need to have confidence in your ability to fight the attacker. Self defence includes techniques such as going for a strike and manoeuvres to reverse a situation.
33. Mr Huseyin said that he does not go to any martial arts classes and has not joined a club, because he does not want to engage with people much stronger than him. He pointed out that he weighs only 65 kg. Nor does he want to submit to "strikes" in such a situation. He said he practices with his cousin, but their matches are always on the understanding that you stop as soon as asked by your opponent. He said occasionally he may have a match with another friend, but that it is very rare, and always on the same understanding. If he were allowed to import the DVDs, his cousin would probably watch them with him. Even if the cousin did not see the DVDs, he would learn the techniques from practising them with Mr Huseyin. Mr Huseyin gains confidence, entertainment and relaxation from his practice of martial arts.
34. As to factor (b), the only activity of an artistic, or educational or cultural or scientific nature which Mr Huseyin conducts, is self education, and to a lesser extent education of his cousin by practising with him.
35. As to factor (c), Mr Huseyin provided no evidence at all of his reputation either generally or in relation to martial arts activities. Evidence as to reputation, by its nature must be given by somebody other than oneself. The word "reputation" means the estimation in which a person is generally held. Mr Huseyin produced no evidence from anyone other than himself. He said he does not wish to involve others in this matter.
36. Mr Huseyin said he is of good character and there was no evidence to the contrary, but that is not the same as evidence of his reputation in the community in which he is known. He made the point, "there isn't a person alive who can prove that they are of good character" (Applicant's Statement of Facts and Contentions). That is true; even people of good reputation are reported in our newspapers as having committed crimes, thus showing their reputation to have been better than they deserved. But the law still places some reliance on a person's reputation. I accept Mr Huseyin's submission, as did the Director and Ms Nance, that the fact that he had previously attempted to import films instructing in "unarmed, knife, baton and gun combat", is not relevant to his reputation.
37. As to factor (d), and the ability of Mr Huseyin to meet conditions that may be imposed under subregulation 3 in relation to the goods, he said that until he knew the conditions he could not comment on his ability to meet those conditions. The Director said that conditions are usually imposed on organisations to ensure that the goods in question are not generally released, but only available for the specific purpose for which permission was granted. He gave as examples, to assist in the defence of a murder charge, or for instruction at the Police Academy. He said the conditions may include matters concerning the security of the arrangements for holding the goods, restrictions on the persons who have access, or a requirement that the goods be destroyed when they are no longer required for the specific purpose for which importation was permitted. The Director did not suggest what conditions could be relevant in a matter similar to this, because he did not consider that Mr Huseyin had given information as to any specific purpose for which the goods were required. Mr Huseyin agreed that because of the use to which he intends to put the DVDs, his cousin would probably watch them with him, so they would not be imported solely for his own use. In any event, as Ms Nance submitted, it would be impractical to impose conditions as to how a person could use imported goods in his or her own home.
38. As to factor (e), the Director did not refer to any other relevant matter in his statement of reasons. Ms Nance, in her Statement of Facts and Contentions, dealt with matters raised by Mr Huseyin, in his letter (T4), as to the ready availability of similar goods in Australia.
39. Mr Huseyin in his letter suggested that the conclusion that the DVDs he sought to import were likely to be prohibited goods was inconsistent with approaches to similar goods. He pointed out:
(i) similar videos and DVDs appear to be readily available in Australia;
(ii) six out of eight similar Brazilian street fighting tapes had been released by the Classification Board in 1996, and
(iii) instruction in Vale Tudo or similar techniques is readily available in martial arts studios and clubs in Australia.
40. As to the concern about similar videos and DVDs being readily available in Australia, the evidence was that Mr Huseyin had seen such videos advertised in an Australian and an American magazine. He produced copies of the relevant advertisements. It was not clear whether all those videos and DVDs would be able to be imported without seizure. Ms Nance produced a record showing that none of the titles identified by Mr Huseyin had been granted classification by the Office of Film and Literature Classification. The Director said that such classification is required by law for all films, videos and DVDs sold in Australia.
41. As to the six out of eight Brazilian street fighting videos which had been released by the Classification Board in 1996, the recommendation to Mr Clark stated (T5 p21):
This series of tapes appears to deal with similar fighting concepts as advertised in the Mario Sperry series such as `takedowns', `chokes' and `locks'. The Board recommended that 6 of the Brazilian Street Fighting series be released as they contained no material which fell within the areas described in Regulation 4A(1A) of the Customs (Prohibited Imports) Regulations. The Board Reports for all 6 films note that the tapes focus on self-defence rather than instruction to encourage aggressive or attacking behaviour. The Board recommended that 2 of the Brazilian Street Fighting series be declared prohibited imports (T96/1516 and T96/1511) as the focus of the films was on attack rather than defense, and in the context of a tape demonstrating street fighting promoted and instructed in matters of violence. (emphasis added)
42. Mr Huseyin explained that the titles of the six tapes which were released indicate that some of them involve instruction in matters of violence such as "superior leg locking", and "joint locks". He also made the point that even though their titles include the term "self defence", in order to defend oneself against a violent attack, a person must often use violence towards the attacker.
43. Mr Huseyin put to the Director, in cross-examination, that if the released tapes include instruction in joint locks and bodily locks, that could result in bodily harm to another person. Further, that could mean that they "instruct in matters of . . . violence".. The Director did not disagree with that description. Mr Huseyin then suggested to the Director that the Classification Board had released tapes to which r 4A(1A)(d) applied.
44. The Director explained that the Board allowed release of those tapes on the ground that they deal with self defence rather than attack. Mr Huseyin pointed out that r 4A subparagraph (1A)(d) does not make any such distinction. The Director referred to Guidelines used by the Classification Board which seem to treat subparagraph (1A)(d) as if it also, like subparagraphs (1A)(a), (b) and (c), had some qualifying provision as to community standards of what is acceptable in the matter of violence, so that violence for purposes of self defence is acceptable. In answer to a question from the Tribunal, the Director added that goods giving instruction in violent sports such as boxing and wrestling are released on a similar basis.
45. It seems that some qualifying amendment of that nature should be made to r (1A)(d), to bring it into line with the practice of the Classification Board as described by the Director. Further, if guidelines are used in applying a provision in an Act or Regulation, those Guidelines should be made available to the public.
46. Mr Huseyin's third point on this topic was that instruction, in the same techniques depicted in the DVDs he sought to import, is readily available in Melbourne. There was evidence that the police have said it is not unlawful (R2). That does suggest that instruction in these methods may not offend community standards. The Director responded that that is a matter for State authorities and not the Classification Board. Once again, that evidence does raise concern about inconsistency of policies as to what is acceptable by community standards. That concern does not affect the decision whether permission should be given to import goods to which subparagraph (1A)(d) applies, as that paragraph makes no reference to community standards. But it may be relevant to a decision as to whether subparagraph (1A)(a) applied to goods. It does suggest that some modification or definition of the term "violence", in subparagraph (1A)(d) would be helpful.
47. The Tribunal had some concerns about the Director's response to Mr Huseyin's suggestion, that the material he sought to import was not significantly different from material or instruction available in Australia. It appeared from the evidence of the Director that the Classification Board reads down the words of the Regulations, in accordance with Guidelines which reflect the criteria in r 4A(1A)(a), but do not address the criteria in r 4A(1A)(d). But that concern is not relevant to this matter. Mr Huseyin acknowledged that the DVDs he seeks to import instruct in a more violent form of Brazilian Jiu Jitsu than those which have already been allowed to be released, thus r 4A(1A)(d) applies to them.
48. Mr Huseyin's arguments suggest that, even if he is not granted permission to import the specified DVDs, he will still be able to obtain similar DVDs in Australia, and to obtain instruction in the techniques he seeks to learn in Melbourne, if he joins a marital arts club or studio. That evidence indicates that there is no special purpose for which Mr Huseyin requires the importation of the specified DVDs, such as to require an exception to be made to allow the importation of goods in a class that would otherwise be prohibited. He can obtain similar instruction without the need to make any exception to the scheme set out in the Regulations.
49. Further, it was stated by the Director, that the refusal of permission to import the DVDs does not prevent Mr Huseyin importing them, or perhaps importing just one, and testing whether it is classified for release. If it were seized he would be entitled to challenge that seizure under the Act. If he believes that, on viewing the video, the Classification Board would see that it instructs in self defence rather than in matters of violence, then the Board may recommend release. It is difficult for an informed decision to be made simply on descriptions in advertisements for the DVDs. It is not surprising that in a "borderline" case, the Director takes the side of caution rather than allowing release of goods to which, on the material available, subregulation 4A(1A)(d) does apply.
CONCLUSION
50. I regret that I do not entirely agree with the propositions expressed in Re Creek at paragraph 43, on which Ms Nance relied. I would not necessarily say, as stated in Re Creek, that a Tribunal must be satisfied as to each consideration in paragraphs (a)-(e) of subregulation (2AA), before it can give permission to import. There could be situations where some of those paragraphs have no relevance. I consider the position was accurately stated by Deputy President McDonald at paragraphs 10 and 11 of his reasons in Re Moore (No 2):
10. The Tribunal is of the view that the factors set out in regulation 4A(2AA) are compendious and that in assessing the nominated factors and taking into account other factors which may be raised pursuant to regulation 4A2AA(e), a decision-maker may, depending on the nature of what is sought to be imported, attribute different weight to the nominated heads. Regulation 4A(2AA) is relatively open in its application by virtue of the scope arising in regulation 4A(2AA)(e). The use of the plural tense in sub-clause (a) ("the purposes") suggests that the Parliament contemplated that there may be more than one purpose for which permission is being sought. Sub-clause (b), however, suggests the type of activity that it is relevant for the decision-maker to consider. In the instant case, the applicant claimed some connection to each of the artistic, educational, cultural or scientific activities specified in regulation 4A(2AA)(b) but conceded that another purpose that he had in mind, if permission was granted, was the commercial sale of the book at a profit.
11. . .. . The regulation does not contemplate the granting of permission to allow wholesale importation such as that sought Mr Moore on the general premise that members of the public minded to read about the drug ecstasy would be participating in an artistic, educational or cultural or scientific activity. That is too broad a premise.. On the other hand, if the CSIRO, for instance, or the Australian College of Psychiatrists sought to undertake research into the properties of the drug, then permission may be granted on the basis that the activity proposed would be of an educational and/or scientific nature. The very general purposes proposed by Mr Moore do not fall within the type of activity contemplated by the section and, indeed, if permission was granted on that basis, it would ultimately lead to the circumvention of the Customs legislative regime which is designed to prohibit the importation of goods classified in this category, including the book.
51. Nor would I say that self education could never justify a grant of permission to import. I do agree that it would be very rare for self education alone to be sufficient to justify a grant of permission to import goods to which subregulation (1A) applies. I consider, as Deputy President McDonald said, that the subregulation is "relatively open in its application by virtue of the scope arising" for its application. But I would not rule out the possibility that there could be a situation where the particular individual's activities are recognised as making an important contribution to the community by reason of special skills or activities of the individual.
52. I must look at all the factors specified in subregulation (2AA) when exercising the discretion there provided. On the one hand Mr Huseyin desires to import DVDs for self education in self defence, confidence building, entertainment/recreation. On the other hand he accepts that those DVDs do "instruct in violence" and they are thus goods to which subregulation (1A)(d) applies. The scheme of the Act and the Regulations is that such goods are prohibited goods, although in certain circumstances that characterisation can be avoided, by a grant of permission to import. There are no factors in this matter which indicate that, without inspection, a decision should be made allowing the importation of the specified goods so as to prevent their importation being prohibited.
53. The decision under review will be affirmed.
Mrs Joan Dwyer, Senior Member
Signed: .......................................................................................
Administrative Assistant
Date of Hearing 29 August 2003
Date of Decision 11 September 2003
Solicitor for the Applicant Self-represented
Solicitor for the Respondent Ms E Nance, Australian Government Solicitor
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URL: http://www.austlii.edu.au/au/cases/cth/AATA/2003/889.html