FEDERAL COURT OF AUSTRALIA

MICHAEL BROWN,  MELITA BERNDT,    BEN ROSS,

VALENTINA SRPCANSKA

v

THE MEMBERS OF THE CLASSIFICATION REVIEW BOARD

OF THE OFFICE OF FILM & LITERATURE CLASSIFICATION

No. VG 507 of 1996

SUMMARY

INTRODUCTION

In accordance with the practice of the Federal Court in some other cases of public interest, Merkel J has prepared this brief summary to accompany the reasons for judgment, delivered today.  It must, of course, be emphasised that the only authoritative pronouncement of the Court’s reasons is that contained in the published reasons for judgment.  This summary is intended to assist in understanding the matter before the Court and the principal conclusions reached by the Court, but is necessarily incomplete.

THE BACKGROUND FACTS

The July 1995 edition of Rabelais, a monthly publication of the La Trobe University Students’ Representative Council, contained an article entitled “The Art of Shoplifting”.

The Retail Traders Association of Victoria applied to the Chief Censor to refuse classification for the publication on the ground that it contained an article that “instructs in matters of crime”.

A refusal of classification for a publication can have significant consequences.  Under the co-operative Commonwealth, State and Territory legislative scheme for uniform standards of censorship in Australia it can be an offence to distribute a publication which has been refused classification.

The applicants in the present case were the editors of Rabelais.  They applied to the Classification Review Board to review the Chief Censor’s classification. 

The Review Board concluded that

•    shoplifting, i.e. theft, and fraud are crimes throughout Australia;

•    the article was "instructional" in relation to the commission of a crime, i.e. shoplifting;

•    the article contained "practical instruction in techniques of shoplifting" with "considerable detail provided in regard to methods, and hazards likely to be encountered";

•    the article "lacked indicators of satire, or tongue-in-cheek treatment";

•    although the content of the Rabelais publication is "acknowledged to be political in flavour" the major part of the article aims to be a "step by step guide to shoplifting"; and

•    accordingly, the article is a publication that instructs in matters of crime and should therefore be refused classification.

The decision of the Review Board is of importance to the applicants who have been charged with certain offences in relation to the article.  If the article is not refused classification that will constitute a complete defence to the charges which will be dealt with by another court on another occasion.

The applicants applied to the Federal Court to review the Review Board’s decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). When review is sought under that Act the Court does not rehear the matter on its merits;  the application for review can only succeed if the applicants establish that the Board made an error of law or did not exercise its decision-making power in accordance with law.

FREEDOM OF SPEECH AND EXPRESSION

The first main issue is whether the censorship of the article infringed the implied constitutional freedom of political communication and discussion.  It was argued by the applicants that the article, being primarily “political” in character and appearing in a political context, was protected by the implied freedom.

However such a freedom, which exists in a considerably wider form in the United States, Canada, Europe and under the International Covenant on Civil and Political Rights, has never been accepted as absolute.  It gives way to laws which prohibit or restrict conduct which is likely to be harmful to the rights of life, liberty and property of others.  Accordingly, it is open to legislatures to enact some laws which prohibit or restrict conduct which incites, promotes or instructs in the commission of crime even though such laws may have the effect of prohibiting or restricting some categories of speech.  For example, in the United States where the protection of freedom of speech under the First Amendment is at its widest, it has always been accepted that the most stringent protection of free speech would not protect a person in falsely shouting fire in a theatre and causing a panic.  Likewise, words which induce the commission of crime enjoy no constitutional protection in the United States.

However the Court will lean strongly against construing any anti-speech law, or any decision made under such a law, in a manner which would prohibit or restrict political speech or discussion.  The article in Rabelais contained some political content and appeared in a political context.  However, changes in context, emphasis or content can cause political speech to develop into non-political speech.  That is precisely what has occurred in respect of “The Art of Shoplifting”.

The introduction to the article proffers a political justification or rationale for shoplifting.  However, that does not result in the detailed information and guide to shoplifting, which is systematically furnished in the balance of the article, also being characterised as political.  By way of example, an instruction manual on the use of explosives to destroy a high rise building does not become political speech merely because the rationale proffered in the manual is political.

The Review Board’s refusal of classification did not apply to the Rabelais publication without the article or to the article without the guide to shoplifting contained in the article.  It was based entirely on the detailed guide to shoplifting.  Accordingly, the Board did not err in law in treating the classification

·      as not infringing the implied freedom of political communication and discussion;  and

·      as not impairing or restricting political speech.

THE PROPER CONSTRUCTION OF THE NATIONAL CLASSIFICATION CODE

The second main issue related to whether the Board erred in law in its construction of the National Classification Code pursuant to which its censorship decisions are made.

The relevant portion of the Code provides for a classification of “RC (Refused Classification)” for publications that “instruct in matters of crime”.

To fall within the Code an instruction must, in a real and practical sense, instruct in the commission of crime. A publication must do more than state the obvious and not be merely satirical in content.  Also, as the Code applies nationally, “crime” for the purposes of the Code must be conduct which is a “crime” throughout Australia.  In general, regulatory offences or conduct which constitutes a crime in some, but not other, parts of Australia are unlikely to constitute “crime” for the purposes of the Code.  However, subject to that limitation, the reference in the Code to “crime” is general and is not restricted to violent crimes or to the “more serious” crimes, however that may be defined.  Shoplifting, which is theft of another person’s property, is a crime throughout Australia.  It falls within the definition of “crime” in its narrowest sense, i.e. an invasion of a person’s right to life, liberty or property.

It was open, as a matter of law, to the Review Board to conclude that the article, in a real and practical sense, instructs in the commission of crime. Its content was not so general or so satirical that it was not open to the Review Board to conclude that it was truly instructional.  The Board did not lightly arrive at its RC classification decision.

OTHER GROUNDS

A number of other grounds were unsuccessfully argued.  In particular, it was argued that the Board did not have regard to the consequences of an RC classification for freedom of speech in Australia.  The Court was satisfied that the Board had regard to those consequences in construing the Code and in arriving at its classification.

CONCLUSION

For these reasons the applicants have not established that the Review Board erred in law in arriving at its decision, nor have they made out any of the other grounds relied upon by them to review the decision.

It is obviously unfortunate that, by reason of the offending article, a student publication has been classified as RC under the Act. However, it is wrong to regard that classification as an abrogation of the freedom of political communication or discussion. It is not. It occurred because, in the view of the Board, the article strayed from political discussion and developed into detailed and systematic instruction on the commission of the crime of theft.  Even strong advocates of free speech rights would concede that there is no public interest in instructing how, most effectively, to steal the property of others.

Undoubtedly, one expects a university to be a place where freedom of speech and expression, of all kinds, will flourish. However, that expectation does not justify one law for the freedom for those in the universities and another law for those outside the universities.

It may well be that the publication of the article occurred as a result of what might now be seen to have been a serious error of judgment, rather than as part of a deliberate attempt to incite others to commit the crime of theft.

Before departing from the present case it is important to observe the difficulties inherent in the administration of any anti-speech code. As was said by Harry Kalven Jnr.:

     It is technically impossible to write an anti-speech code that cannot be twisted against speech nobody means to bar. It has been tried and tried and tried.

The Code is no exception.  The construction that has been given to the words "instruct in matters of crime" should ensure that, on that subject, the Code is not "twisted against speech nobody means to bar".  However, it is important that a similar approach to construction is taken to other aspects of the Code. In particular, it is appropriate to emphasise that it is the policy of the Code that classifications under it should not be lightly made.

Accordingly, the application for review is dismissed.  Costs will be considered after hearing submissions from the parties.

Melbourne, 6 June 1997

This judgment is available in full text on the internet at the following URL:http://www.austlii.edu.au/au/other/fca