Queer Screen Ltd v The Chief Censor [1995] FCA 93

CATCHWORDS

STATUTES - Interpretation - interrelationship of the Film and Computer Game Classification Act 1984 (NSW) and the Customs (Cinematograph Films) Regulations (Cth) - whether Commonwealth censor while exercising powers under the State Act was obliged to grant an exemption to a film under s 38 (2) of the State Act because of the operation of provisions of the Commonwealth Regulations.

Film and Computer Game Classification Act 1984 (NSW) ss 3, 4, 9 and 38.

Customs (Cinematograph Films) Regulations (Cth) regs 13, 29, 31, 32 and 39D.

QUEER SCREEN LIMITED v THE CHIEF CENSOR

No NG 114 of 1995

Lindgren J

24 February 1995

Sydney

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No NG 114 of 1995

GENERAL DIVISION )

BETWEEN:

QUEER SCREEN LIMITED

Applicant

AND:

THE CHIEF CENSOR

Respondent

CORAM: Lindgren J

PLACE: Sydney

DATE: 24 February 1995

MINUTE OF ORDERS

THE COURT:

1. ORDERS that the application be dismissed.

2. ORDERS that the applicant pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No NG 114 of 1995

GENERAL DIVISION )

BETWEEN:

QUEER SCREEN LIMITED

Applicant

AND:

THE CHIEF CENSOR

Respondent

CORAM: Lindgren J

PLACE: Sydney

DATE: 24 February 1995

REASONS FOR JUDGMENT

INTRODUCTION:

The applicant is a company limited by guarantee and is a community-based non-profit organisation set up for the purpose of organising and presenting an annual "gay and lesbian film festival" in Sydney. The film festival for 1995 ("the Festival") had commenced on 16 February 1995 and was scheduled to end on 26 February 1995 when the present application came before me as Duty Judge late on Thursday afternoon, 23 February.

The applicant had intended to screen a film entitled "Tras El Cristal" (In a Glass Cage") ("the Film") on that very evening at 9.30 pm and on Sunday 26 February at 5.30 pm as part of the Festival. The applicant sought relief which, if granted, would make it possible for it to screen the Film as part of the Festival without contravening certain statutory provisions referred to below. On Friday 24 February, I dismissed the application, gave a summary of my reasons for doing so and said that I would publish my Reasons in full form subsequently. These are those Reasons.

THE ISSUE

The Film was described in the following terms in the published programme for the Festival.

"With an aura of brutality that is reminiscent of the early works of Bunuel and Pasolini. In a Glass Cage is a truly disturbing film. Meisner, a Nazi doctor living in hiding in Spain, continues his bloodlust after the war is over by torturing and murdering young boys. After a near fatal accident, he is left to live his final days in an iron lung. A young man, who is hired as his nurse, seems to know of the doctor's past and the hunter becomes the hunted. This brilliantly constructed thriller probes a moral heart of darkness, and is bound to be the most controversial film of the festival."

The Film and Computer Game Classification Act 1984 (NSW) (Act No 155 of 1984) ("the State Act") provides, inter alia, for the classification, exhibition and supply of films. Sub-section 9 (1) provides that except as provided by sub-s (2), "the censor" shall classify a film for which an application for classification has been made, "G", "PG" "M" or "R"
according to which of various opinions the censor forms of the film. Sub-section 9 (2) provides as follows:

"9.(2) The censor shall refuse to classify a film for which an application for classification has been made where the film:

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

(b) is a child abuse film;

(c) describes, depicts, expresses or otherwise deals with sexual activity of any kind between a human being and an animal; or

(d) promotes, incites or encourages terrorism within the meaning of the Australian Security Intelligence Organization Act 1979 of the Commonwealth" (emphasis supplied).

The expression "child abuse film" is defined in sub-s 3 (1) as:

"a film which depicts a person (whether engaged in sexual activity or otherwise) who is, or who is apparently, a child in a manner that is likely to cause offence to a reasonable adult; ..."

Sub-section 19 (1) provides that a person shall not exhibit an unclassified film in a public place or cause an unclassified film to be so exhibited. For contravention, penalties are provided. The expression "exhibit" in relation to a film is defined to include "screen". It was common ground that the Film was an unclassified film.

Importantly, sub-s 38 (2) provides as follows:

"(2)The censor ... may, in any particular case, by direction in writing under the hand of the censor ... exempt, subject to such conditions as may be specified in the direction, any film ... from the operation of this Act to the extent specified in the direction."

Screening of the film by the applicant would have contravened sub-s 19 (1). But the applicant contended that it was entitled to an exemption of the Film from the State Act under sub-s 38 (2).

The case concerns the interrelationship between the State Act and the Customs (Cinematograph Films) Regulations ("the Commonwealth Regulations" and "the Regulations") made under the Customs Act 1901, (Cth). The concern of the Commonwealth Regulations is the importation of films. That of the State Act is the exhibition of films. The respondent is an officer of the Commonwealth appointed by the Governor General under reg 6 of the Commonwealth Regulations. The office of "Chief Censor" is created by the Regulations. The Regulations provide for the constitution of a "Censorship Board" ("the Board") comprising the Chief Censor, the Deputy Chief Censor, two senior Censors and not more than 11 other members, each member being called a "Censor". The "Chief Censor" and "Deputy Chief Censor" are the members of the Board appointed to hold those respective offices.

Section 4 of the State Act allows for arrangements to be made between the State and the Commonwealth "for the exercise and discharge by officers or authorities of the Commonwealth, on behalf of the State, of the functions of a censor of films or ... with respect to the classification of films" under the State Act. It was common ground that such a Commonwealth- State arrangement has been made. The term "censor" in the State Act is defined in sub-s 3 (1) as follows:

"'censor' means:

(a) the officer or authority of the Commonwealth exercising and discharging on behalf of the State the functions of a censor of films pursuant to an arrangement under section 4; or

(b) where no such arrangement is in operation, the appeal censor appointed as referred to in section 5; ..."

Section 5 provides that where there is no arrangement in operation under s 4, a censor may be employed under the Public Service Act 1979 (NSW). I shall henceforth use the expression "State censor" to refer "the censor" as defined in the State Act and to include the Chief Censor in the capacity of State censor. Sub-section 5A (1) provides that in exercising functions under the State Act, the State censor must have regard to any guidelines issued by the Minister relating to the classification of films.

In summary, the applicant contends that because, for reasons which appear below, the respondent was, when wearing his Commonwealth hat of Chief Censor, obliged by sub-reg 31 (1) of
the Commonwealth Regulations to grant to the applicant permission to import the Film for screening at the Festival (and because the only purpose of importation of a Film is the screening of it) he was, when wearing his State hat as State censor, obliged, under sub-s 38 (2) of the State Act, to exempt the Film from the operation of that Act or at least from such provisions of it as would prevent the screening of the Film at the Festival.

It will be necessary to consider in more detail the provisions of the Commonwealth Regulations and the State Act. But first, the question of the Court's jurisdiction must be addressed.

JURISDICTION

The decision attacked by the applicant is a decision of the respondent not to exercise the power of exemption given by sub-s 38 (2) of the State Act. Although the respondent is appointed under the Commonwealth Regulations, in relation to that decision he was, prima facie, exercising and discharging the functions of State censor. However, sub-reg 39D (1) provides, relevantly, as follows:

"39D(1)In addition to the powers and functions conferred on ... a Censor ... by these Regulations, ... a Censor ... may, in relation to the censorship and classification of films ... exercise such powers, and perform such functions:

(a) as are conferred on ... a Censor ... :

(i) by any arrangement made, or agreement entered into, whether before or after the commencement of this regulation, under a law of a State; ..."

The applicant submitted that by reasons of this provision the respondent, in granting or refusing to grant exemption under sub-s 38 (2) of the State Act, was acting as Chief Censor under the Commonwealth Regulations after all. Consistent with this approach, in form the application was an application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the AD(JR) Act") and an application under s 39B of the Judiciary Act 1903 (Cth). As well, however, it was intituled as an application under s 69 of the Supreme Court Act 1970 (NSW).

The respondent contended that in refusing to grant exemption under sub-s 38 (2) of the State Act, he had been acting as State censor and exercising exclusively State power, but accepted that the Court had jurisdiction to grant the applicant relief under s 69 of the Supreme Court Act 1970 (NSW) by reason of s 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). The respondent submitted, referring to authorities, that reg 39D did not have the effect that the respondent was exercising Commonwealth power, that the decision impugned was not a "decision under an enactment" for the purposes of the AD(JR) Act because it was not a decision which was given force or effect by a Commonwealth enactment, and that the respondent in his capacity as State censor was not an "officer of the Commonwealth" within the meaning and for the purposes of s 39B of the Judiciary Act 1903 (Cth).

There was no debate before me on the jurisdictional question. Since it was common ground that at least by reason of s 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) I had jurisdiction to grant appropriate relief of a kind sought by the applicant, and in the absence of debate I saw no reason to think otherwise, I will give no further consideration to the jurisdictional question.

THE COMMONWEALTH REGULATIONS

Part II (regs 13-27) of the Commonwealth Regulations is headed "THE IMPORTATION OF FILMS AND ADVERTISING MATTER". Regulation 9 provides that the importation of a film, "other than a film to which Part III applies", into Australia is prohibited unless the film complies with the conditions specified in reg 10 or permission to import the film has been granted by the Chief Censor under reg 10B. Regulation 10 provides for a condition that importation is subject to a conditions which depend on "registration" of the film. Regulation 10B empowers the Chief Censor, on application, to grant permission to import a film and provides that the permission may specify conditions of certain classes. Regulation 10B was not said to be relevant to this case. Regulation 11 provides that a film is not to be delivered from Customs Control until it is registered and reg 13 provides that a film is not to be registered under Part II of the Regulations if, in the opinion of the Board.

"(a) the film ... is blasphemous, indecent or obscene;

(b) the film ... is likely to be injurious to morality, or to encourage or incite to crime; or

(d)[sic] the film ... depicts any matter the exhibition of which is undesirable in the public interest."

Regulation 14 requires applications by importers for the registration of films to be in accordance with a form approved by the Chief Censor. Regulations 15 and 16 empower the Chief Censor to require that a film which is the subject of an application for registration be screened before the Board, a member of the Board or a Deputy Censor. Regulations 17, 18 and 18A provide for the respective roles of the Board, the Deputy Censor and such a Board member as well as of the Chief Censor in relation to the screening and registration of films. Where registration is approved, it is the Chief Censor who, under reg 20, must cause the film to be registered. These and other regulations within Part II show that the role of the Chief Censor is pivotal in the context of the consideration of individual films for which registration is sought.

Part III (regs 28-34) of the Regulations is headed "FILMS TO BE SCREENED BY APPROVED ORGANIZATIONS". Regulation 28 defines "approved organization" to mean an organisation approved by the Attorney-General for the purposes of Part III, "approved event" to mean an event conducted by an approved organisation being an event approved by the Attorney General for the purposes of Part III, and "film to which this Part applies" to mean "a film that is intended to be screened by an approved organization at an approved event." Regulation 29 is as follows:

"29.The importation of a film to which this Part applies is prohibited unless a permission to import the film has been granted under this Part."

Regulation 30 provides for the making of applications for such permission by the importers of films and for the lodgement of such applications with the Chief Censor. Sub-regulations 31 (1) and (2) are as follows:

"31.(1)Where an application is made for permission to import a film for screening by an approved organization at an approved event, the Chief Censor shall grant to the approved organization permission for the importation of the film subject to the conditions specified in this regulation.

(2)For the purposes of subregulation (1), the conditions to be complied with by the holder of the permission are:

(a)that the film is screened by the organization, and at the approved event, specified in the permission and not otherwise;

(b)that the film is screened not more than 3 times in the course of the approved event;

(c)that the film is exported, or delivered to the holder of a permission in respect of the film, within the period of 6 weeks after the conclusion of the approved event;

(d)that the film is not screened other than before a subscription audience; and

(e)that no person under the age of 18 years is admitted to a screening of the film."

Regulation 32 is as follows:

"32.(1)The Attorney-General may, by instrument in writing, approve organizations and events for the purposes of this Part.

(2)In determining whether to approve an organization or an event, the Attorney-General shall have regard to:

(a)the purposes for which the organization was formed;

(b)the extent to which the event is in keeping with the purposes of the organization;

(c)the extent to which the organization carries on activities of a cultural or artistic nature;

(d)the reputation of the organization with respect to the screening of films;

(e)the conditions imposed by the organization with respect to the admission of persons to the screening of films by the organization.

(3)An approval under this regulation shall be published in the Gazette."

Although the purpose of importation by an organisation is, of course, screening (as reg 31 recognises), the approval of "organisations" and "events" by the Attorney-General takes place without reference to particular films.

It will be recalled that Part II of the Regulations provides for registration of films. Questions of blasphemy, indecency, obscenity, injury to morality encouragement or incitement to crime and undesirability in the public interest arise for the Board as part of the registration process under that Part. But under Part III, once the Attorney-General has approved of an artistic or cultural organisation and an event carried on by it, the organisation is entitled to be granted an importation licence by the Chief Censor for the screening of any film at the event subject only to the conditions set out in sub-reg 31 (2), and so there will be no occasion for those questions to arise.

FACTS

On 9 August 1993 the Attorney-General pursuant to sub-reg 32 (1) of the Commonwealth Regulations approved the applicant as an "organisation able to hold approved events within the meaning of Part III ... ". On 23 November 1994, the Attorney-General, pursuant to sub-reg 32 (1), approved for the purposes of Part III thereof, the 1995 Mardi Gras Film Festival to be held in Sydney commencing on 16 February 1995 and ending at the expiration of 26 February 1995 to be conducted by the applicant.

On 19 December 1994 the applicant applied to the Chief Censor under reg 30 for permission to import 19 films including the Film. On 30 December 1994 the Chief Censor replied advising that while in the case of the Film permission to import it had been granted under the Commonwealth Regulations, overseas reviews of it suggested that it might not meet current Australian guidelines for films intended for public exhibition. In particular the letter said of the Film, "it still may not be legally exhibited in New South Wales unless classified or exempted from classification". The Chief Censor advised, however, that as State censor he was able to grant an exemption under sub-s 38 (2) of the State Act. He said, that he was reluctant to do this without first being satisfied that the Film met current public exhibition criteria. He asked therefore that the Film be made available for examination by the Board which would endeavour to form a judgment on it as soon as possible.

On 6 January 1995 the applicant wrote to the Chief Censor supplying a VHS preview cassette of the Film and some additional information about it, made observations on its merits, and noted that it had been screened in prestigious film festivals overseas. At the same time, the applicant applied for registration of the Film. The applicant was much later to appreciate that this was inappropriate in view of the "approved" status of the applicant and of the Festival under Part III. The applicant's misapprehension accounts for the course of events down to 20 February 1995.

On 27 January 1995 the Chief Censor responded to the application for registration of the Film by certifying that the Board had refused to register it pursuant to sub-reg 13 (1) (a) of the Regulations, that is to say, that in the Board's opinion it was "blasphemous, indecent or obscene". On 30 January 1995 the applicant applied for review of the Board's decision and on 31 January requested a statement of reasons for that decision. That statement was supplied on 1 February. On 7 February the Film and Literature Board of Review ("the Review Board" - also constituted under the Commonwealth Regulations) decided to confirm the Board's decision.

On 15 February 1995 the respondent, pursuant to sub-reg 31 (1), granted the applicant a Permission to Import in respect of 33 films. The Film was not included, no doubt because the applicant had applied for registration of it under Part II of the Regulations.

By notice also dated 15 February 1995, "John Joseph Dickie, a censor for the purposes of Part I of the [State] Act" pursuant to sub-s 38 (2) of the State Act exempted 42 films specified in the First Schedule to the notice from certain provisions of Parts II, III and IV of that Act specified in the Second Schedule to the notice subject to the conditions contained in the Third Schedule to the notice. Of course, the Film was not listed in the First Schedule. The sections referred to in the Second Schedule included ss 9 and 19 of the State Act referred to earlier. The Third Schedule specified conditions to the effect that the films specified were to be exhibited only by the applicant as part of the Festival, were not to be exhibited more than four times each during the course of the Festival, and that no person under the age of 18 years was to be admitted to the screenings.

On 20 February the applicant's solicitors, M Frankel & Co ("Frankels"), wrote to the respondent advising that they had now advised the applicant that registration under sub-reg 13 (1) was not necessary in view of its "approved organisation" status and the "approved event" status of the Festival. They noted that the Permission to Import dated 15 February had omitted reference to the Film. They advised that the applicant had arranged for importation of a print of the Film for exhibition at the Festival which was expected to arrive in Australia on or about Thursday 23 February (a Festival brochure had advertised the Film as being due for screening at 9.30 pm on Thursday 23 February and 5.30 pm on Sunday 26 February). Frankels requested the respondent to issue a Permission to Import in respect of the Film by 12 noon on the very next day, Tuesday 21 February. The solicitors also requested the exemption under sub-s 38 (2) of the State Act, submitting that "the clear policy of Part III of the Customs (Cinematograph Films) Regulations and its counterpart, Section 38 of the NSW Act, is that such exemptions should follow as a matter of course for exhibition at approved events in the limited circumstances permitted by reg 31 (2)". Frankels requested a response by 12 noon on Tuesday 21 February. They also requested extension of the period of the "approved event"
for a further day to the end of Monday 27 February to allow time for the screening of the Film.

On 21 February, the respondent, pursuant to sub-reg 31 (1), granted the applicant a Permission to Import in respect of the Film for screening at the Festival. On the same day the Australian Government Solicitor ("AGS") replied to Frankels' letter dated 20 February advising that in relation to the request for exemption under sub-s 38 (2) of the State Act, the respondent would, apart from considering the Film and the applicant's synopsis of it, also consider the decisions of the Board and the Review Board, and inviting Frankels to provide any other material and/or comments on those decisions which they wished the respondent to consider, by noon on 22 February. Apparently this letter was faxed by the AGS to Frankels at 2.13 pm on 21 February. Accordingly, from that time if not from the time of the respondent's earlier letter dated 30 December 1994 referred to above, the applicant knew that the respondent regarded the State censor's discretion to exempt given by sub-s 38 (2) of the State Act as a discretion which was to be exercised independently of the applicant's entitlement to a Permission to Import in respect of the Film under Part III of the Commonwealth Regulations. Frankels faxed a reply on the same day, inter alia submitting "that the policy of the statutory regime compels exemptions as a matter of course".

On 22 February 1995 the respondent wrote to Frankels declining
to exempt the Film under sub-s 38 (2) of the State Act. Because submissions focussed on this letter, a copy of it is annexed to these Reasons.

The applicant led hearsay evidence in para 9 of an affidavit sworn 23 February 1995 of its solicitor Raena Lea-Shannon which, subject to the applicant's concessions noted below, was not challenged, that there had not been a single film imported into Australia by an approved organisation for an approved event which had been refused exemption under sub-s 38 (2) of the State Act. The applicant's concessions were as follows:

"In relation to paragraph 9 of the affidavit of Raena Lea-Shannon, the Applicant concedes

1.In each case referred to in paragraph 9, a separate exercise of discretion under s 38 (2) of the NSW Act occurred.

2.In no case has the film in question fallen within any of the categories in s 9 (2) of the NSW Act, in the opinion of the then Chief Censor."

Clearly, whatever effect para 9 of the affidavit may otherwise have had was substantially neutralised by the concessions.

THE PARTIES' SUBMISSIONS

Two matters may be disposed of at the outset. Firstly, the case does not concern the merits of the Film or the merits of either the terms or the policy of either the Commonwealth Regulations or the State Act. In particular, I am not concerned with the merits of legislation which may operate to prevent adults in New South Wales from viewing a film which has apparently been screened at seven overseas film festivals and in a season of Spanish films at the National Film Theatre in London, released commercially in The United States of America and broadcast on Spanish television. Secondly, the applicant did not submit that the Regulations were inconsistent with the State Act for the purposes of s 109 of the Constitution.

The applicant submitted that the Regulations and the State Act represented "interlocking and parallel regimes" and that it could not be intended by them that the respondent could, wearing the Commonwealth hat of Chief Censor, grant a permission to import a film subject to the conditions set out in sub-reg 31 (2), then wearing the hat of State censor, decline to exercise the discretion given by sub-s 38 (2) of the State Act with the result that the film, although permitted to be imported, could not be screened at the event for which importation had been permitted. It was submitted that the contrary position made a mockery of the intention of the parallel regimes. The submission was that in the case of an approved organisation and an approved event, not only was the Commonwealth registration system not to apply, but neither was the State classification system. Although the terms of sub-reg 13 (1) and sub-s 9 (2) are not identical, the applicant submitted that it would be most unlikely that some area covered by the State provision was not covered by the Commonwealth provision, and referred, in particular, to the breadth of the expressions "injurious to morality" and "undesirable in the public interest" in the Commonwealth Regulations.

The applicant submitted that as a matter of law the respondent, acting as State censor, was bound to grant the exemption under sub-s 38 (2), or alternatively, that in taking into account the following matters (referred to in his letter dated 22 February 1995), he took into account irrelevant considerations:

his viewing of the Film;

the provisions of s 9 of the State Act dealing with the classification of films;

the decisions of the Board and the Review Board in relation to the Film; and

the view put to him that the Film had artistic merit.

Finally, the applicant submitted that the respondent's exercise of the discretion given by sub-s 38 (2) of the State Act was unreasonable.

Although put in these various ways, the applicant's
submissions were all ways of attacking the proposition that the respondent was entitled to embark upon the exercise and discharge of the function of State censor provided for in s 9 of the State Act, on the ground (according to the submission) that he was obliged to grant, under sub-s 38 (2) of that Act, an exemption from the provisions of that section.

The respondent submitted that although the Commonwealth and State regimes were parallel, they operated as at different points in time - the Commonwealth at the point of importation which normally calls for "registration", and the State at the point of exhibition which normally calls for "classification". The respondent referred to the joint judgment of Beaumont and Gummow JJ in Minister for Immigration and Ethnic Affairs v Maitan (1988) 78 ALR 419 at 427-428 in support of the proposition that the scope of the discretion under sub-s 38 (2) was confined only by reference to the subject matter, scope and purposes of the State Act. The respondent submitted that there was nothing in the subject matter, scope or purposes of the State Act which compelled the exercise of the power under sub-s 38 (2) (so as to allow an unclassified film to be exhibited in New South Wales) where permission to import the film had been granted under sub-reg 31 (1) of the Commonwealth Regulations.

The respondent further submitted that the independence of the discretion given by sub-s 38 (2) of the State Act from the operation of Part III of the Commonwealth Regulations was
demonstrated by s 5A of the State Act which required that the State censor have regard to any guidelines issued from time to time by the Minister relating to the classification of films, and sub-s 38 (1) which empowered the Minister to grant exemption from the operation of provisions of the State Act.

In reply, the applicant submitted that it was beside the point to refer to the classification provisions of ss 5A and 9 of the State Act because the discretion which sub-s 38 (2) gave to the State censor was a discretion to exempt from the operation of the Act as a whole including those very sections.

REASONS

The submissions did not address in detail the respective points of time at which the regimes represented by the Commonwealth Regulations and the State Act respectively came into existence. Nor were the terms of the Commonwealth-State arrangement pursuant to sub-s 4 (1) of the State Act in evidence. In favour of the applicant, I proceed on the following bases, none of which were put in issue by the respondent:

1. That the subject Commonwealth-State arrangement under sub-s 4 (1) was made at a time when the regime represented by the Commonwealth Regulations in their present form was already in effect;

2. that the Commonwealth-State arrangement was in terms of sub-s 4 (1), that is to say, that "the functions of a censor of films ... with respect to the classification of films under [the State Act]" were to be exercised and discharged by the person occupying from time to time the office of Chief Censor under the Commonwealth Regulations;

3. that at the time when the Commonwealth-State arrangement was made, the State regime was that represented by the State Act in its present form.

I note at the outset that there is, to my mind, a question whether the expression in sub-s 4 (1), "the functions of a censor of films ... with respect to the classification of films under this Act" embraces the exercise of the power of exemption provided in sub-s 38 (2) at all. Part 2 (ss 4-17) of the State Act is headed "CLASSIFICATION OF FILMS AND COMPUTER GAMES", Division 1 (ss 4, 5) of that Part is headed "Appointment of censor and appeal censor", and Division 2 (ss 5A-17) is headed "Classification". Part 3 (ss 18-23) is headed "EXHIBITION OF FILMS", Part 4 (ss 24-34) is headed, "ADVERTISING AND SUPPLY OF FILMS", Part 4A (ss 34A-34K) is headed "REGULATION OF COMPUTER GAMES", and Part 5 (ss 35-48), in which s 38 occurs, is headed "MISCELLANEOUS".

Section 4 is the first section in Part 2. Division 2 of that Part clearly provides for functions of the State censor "with respect to the classification of films under [the] Act". For example, s 5A obliges the State censor to have regard to guidelines issued to him or her by the Minister relating to the classification of films, s 7 provides for the making of applications for classification, s 8 for the screening of films for the purpose of classification, s 9 for the State censor's obligations with respect to classification, s 10 for the State censor's approval of advertisements relating to a film (whether already classified or subject to an application for classification), s 11 for notification of the State censor's decision on an application for classification, s 11A with review by the State censor on his or her own initiative, ss 12-14 with review of the State censor's decision by an "appeal censor" upon application for review, and s 15 with revocation of a classification.

Although Parts 3, 4 and 5 assume the distinction between classified films and unclassified films, it is at least arguable that "the functions of a censor of films ... with respect to the classification of films" are the functions provided for in Part 2 alone. This possibility was not the subject of debate before me. I say no more about it, and proceed on the assumption that it is open to the respondent, as State censor, to exercise the discretion under sub-s 38 (2) by exempting the Film from the operation of the State Act.

The State and Commonwealth regimes have similarities at three levels. Firstly, there are similarities between the State
censor's classification functions in respect of individual films under Division 2 of Part 2 of the State Act and the Chief Censor's registration functions in respect of individual films under Part II of the Commonwealth Regulations. Secondly, the State censor's power to exempt particular films from the operation of the State Act given by sub-s 38 (2) of that Act is comparable to the special permission to import particular films which the Chief Censor is empowered to issue under reg 10B of the Commonwealth Regulations. Thirdly, and at the highest level, the power to exempt "a person or body, or a person or body of a class or description of persons or bodies" from the operation of provisions of the State Act given to the State Minister by sub-s 38 (1) of that Act is comparable to the power to approve "organisations" and "events" (thereby exempting films to be screened by such organisations at such events from the registration provisions of Part II of the Commonwealth Regulation), given to the Commonwealth Attorney-General by reg 32 of those Regulations.

Section 4 of the State Act assumes that there are Commonwealth officers or authorities who or which have expertise, experience and facilities which equip them to carry out the functions of a State censor with respect to the classification of films provided for in Division 2 of Part 2 and, ex hypothesis, in sub-s 38 (2) of that Act. In particular, s 4 and the Commonwealth-State arrangement pursuant to it, assume the existence of the Commonwealth Censor who, because of his or her expertise, experience and facilities relevant to the screening, assessment and registration of individual films under Part II of the Commonwealth Regulations and the power to grant special permission to import particular films under reg 10B within that Part, will be an appropriate person to exercise and discharge the functions of State censor with respect to the screening, assessment, classification and exemption of individual films under the provisions of the State Act to which I have referred. Section 4 contemplates that, acting as State censor, the Chief Censor will bring to bear in relation to individual films for which classification or exemption from classification is sought, both the general expertise, experience and facilities available to him or her as Chief Censor relevant to the screening, assessment and registration of films and the issue of special permission to import under reg 10B, and any particular knowledge or appreciation which he or she, as Chief Censor, may have gained under Part II of the Commonwealth Regulations of a particular film. Of course, s 4 also contemplates that the Chief Censor will, as State censor, obey the command contained in sub-s 9 (2) of the State Act.

Is the rationale which I have just described displaced by the power of exemption given by sub-s 38 (2) of the State Act and the assumed background to the making of the Commonwealth-State arrangement? That assumed background is that it was known to the State that by reason of Part III of the Commonwealth Regulations there would probably be some films in respect of which the process of registration and the issue of licences under reg 10B and the functions of the Chief Censor in relation to them, would be rendered otiose by reason of approvals of organisations and events given by the Attorney-General under Part III of the Regulations. I think that the rationale is not displaced by those considerations.

Sub-regulation 32 (1) empowers the Attorney-General of the Commonwealth to approve organisations and events. Where such approvals exist, sub-reg 31 (1) obliges the Chief Censor to grant a Permission to Import without that consideration of the film to be imported which would otherwise be called for by Part II of the Commonwealth Regulations. The Chief Censor's expertise, experience and facilities which are related to the detailed consideration of individual films are made irrelevant where the Attorney-General exercises that power.

In effect the Commonwealth Regulations allow the Attorney-General, having regard to criteria touching "organisations" and "events", to take consideration of certain films out of the Chief Censor's hands in the same way in which sub-s 38 (1) of the State Act allows the Minister to exempt "a person or body, or a person or body of a class or description of persons or bodies" from, inter alia, the classification functions provided for in the State Act.

In determining whether to approve an organisation or an event, the Attorney-General is required by sub-reg 32 (2) to have regard to factors in respect of which the Chief Censor's expertise, experience and facilities are irrelevant or only marginally relevant. Where approvals are granted by the Attorney-General, the Chief Censor's role in relation to the importation of films by the approved organisation for screening at the approved event is only the mechanical one under reg 31 of issuing a permission for importation subject to conditions laid down in that regulation.

The discretion to exempt given by sub-s 38 (2) to the State censor is required to be exercised "in any particular case" in relation to "any film" subject to "such conditions as may be specified in the direction [granting the exemption of the State censor]". In the context of an exemption from the requirement of classification, the State censor must give genuine consideration to the question whether to exempt a particular film from that requirement. This duty would not be performed if the respondent, acting as State censor, were to act as a cipher as he is required to do when acting under reg 31 of the Commonwealth Regulations. The State has not made an arrangement with the Commonwealth under s 4 of the State Act for the exercise and discharge by the Commonwealth Attorney-General of any function under the State Act.

In my opinion, the State Act and the assumed Commonwealth-State arrangement in terms of sub-s 4 (1) of that Act, have the effect that the Chief Censor may not, as State censor, exercise the discretion to exempt provided for in sub-s 38 (2) of the State Act except by having regard to the subject matter, scope and purposes of that Act. It would not be an exercise of that discretion for the respondent to grant the exemption simply because his or her Commonwealth political master had, by reference to criteria to which the State Act makes no reference, approved of an organisation and of an event under reg 32.

In the typical case where the Commonwealth Attorney-General has approved of an organisation and of an event under reg 32, the Chief Censor will not have occasion to give detailed consideration to a film to be screened by that organisation at that event except in his or her capacity as State censor and by reference to the considerations made relevant by the State Act. In the present case, however, because the applicant inadvertently applied for registration under Part II of the Commonwealth Regulations, consideration was in fact given by the Board and by the Review Board to the Film in the context of that application. It was not submitted by the applicant that if the respondent, acting as State censor, was required independently to consider the Film by reference to s 9 of the State Act (as I think he was), he was not entitled to take the benefit of the earlier consideration which was in fact given to the Film under Part II of the Commonwealth Regulations. Indeed, such a submission would have been inconsistent with the applicant's submission that sub-reg 13 (1) and sub-s 9 (2) cover the same or similar territory. Rather, the applicant's submission was that all consideration of the Film under s 9 of the State Act was irrelevant to the respondent's taking of his decision under sub-s 38 (2) of that Act. For the reasons which I have attempted to explain, I disagree.

The application should be dismissed and the applicant ordered to pay the respondent's costs.

I certify that this and the preceding 28 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate:

Dated: 7 March 1995

Heard: 23 February 1995

Place: Sydney

Decision: 24 February 1995

Appearances:Mr D K Catterns QC with Ms S J Goddard and Mr R Cobden of counsel instructed by Michael Frankel & Company appeared for the applicant.

Mr S J Gageler of counsel instructed by The Australian Government Solicitor appeared for the respondent.

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