Federal Court of Australia

Gaynor v Minister for Communications [2024] FCA 1186

ORDERS

THE COURT ORDERS THAT:

1.    The name of the second respondent be amended to read: “Convenor of the Classification Review Board, as representative of the Members of the Classification Review Board as identified in s 73 of the Classification (Publications, Films and Computer Games) Act 1995 (Cth)”.

2.    An order in the nature of certiorari be made quashing the decision of the second respondent dated 5 July 2023 and 20 July 2023 in relation to the Classification Certificate for a Publication, Classification No CLAS-108096.

3.    An order in the nature of mandamus be made compelling the second respondent to conduct its review function of the Classification Board’s decision dated 3 April 2023 according to law.

4.    The first respondent pay the applicant’s costs of the proceedings.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKMAN J:

Introduction

1    This is an application for judicial review pursuant to s 39B of the Judiciary Act 1903 (Cth) and ss 5 and 6 of the Administration Decisions (Judicial Review) Act 1977 (Cth) of a decision made by a majority of the Classification Review Board (Review Board) on 5 July 2023 (the Decision) together with the associated Classification Certificate for a Publication issued on 20 July 2023 pursuant to the Classification (Publications, Films and Computer Games) Act 1995 (Cth) (the Act) in relation to a publication entitled Gender Queer. The decision of the Review Board was that the publication should be given a classification of “Unrestricted” together with the consumer advice of “M–Not recommended for readers under 15 years”. That conclusion was the same as that reached by the Classification Board on 3 April 2023 in the decision under review.

2    The Review Board described Gender Queer as “an autobiographical non-fiction graphic memoir, written by Maia Kobabe, that explores the author’s path to identifying as nonbinary and asexual”. The Review Board referred to the publication as a 240-page edition published in 2020 by Oni-Lion Forge Publishing Group.

3    At the outset of the appeal, the applicant (Mr Gaynor) raised an issue concerning the proper constitution of the proceedings, in that the second respondent was identified in the originating application as the Classification Review Board, which is not referred to in the Act as being able to be sued in that name. Mr Gaynor proposed that the name of the second respondent be amended to read: “Convenor of the Classification Review Board, as representative of the Members of the Classification Review Board as identified in s 73 of the Classification (Publications, Films and Computer Games) Act 1995 (Cth)”. That order was sought pursuant to r 9.21 of the Federal Court Rules 2011 (Cth). The Minister submitted that it would be more appropriate to amend the name of the second respondent to read: “The Members of the Classification Review Board”, although counsel for the Minister could not identify any practical consequence of choosing one rather than the other of those formulations. In my view, it is appropriate to amend the name of the second respondent in order to ensure that the proceedings are properly constituted. In light of the fact that the members of the Review Board do not wish to be identified by name in these proceedings, I regard it as appropriate to make the order for a representative party which is propounded by Mr Gaynor.

4    Mr Gaynor’s application for judicial review was opposed by the Minister for Communications (the Minister), being the first respondent. The second respondent filed a submitting appearance.

Salient provisions of the Act

5    Section 9 of the Act provides relevantly that publications are to be classified in accordance with the Code and the classification guidelines. Section 11 of the Act provides as follows:

The matters to be taken into account in making a decision on the classification of a publication, a film or a computer game include:

(a)    the standards of morality, decency and propriety generally accepted     by reasonable adults; and

(b)    the literary, artistic or educational merit (if any) of the publication,     film or computer game; and

(c)    the general character of the publication, film or computer game,     including whether it is of a medical, legal or scientific character; and

(d)    the persons or class of persons to or amongst whom it is published or     is intended or likely to be published.

6    The reference in s 9 to the Code is a reference to the National Classification Code, being the Schedule to the Acts: s 5 of the Act. Clause 1 of the Code provides as follows:

Classification decisions are to give effect, as far as possible, to the following principles:

(a)    adults should be able to read, hear, see and play what they want;

(b)    minors should be protected from material likely to harm or disturb     them;

(c)    everyone should be protected from exposure to unsolicited material     that they find offensive;

(d)    the need to take account of community concerns about:

(i)    depictions that condone or incite violence, particularly sexual     violence; and

(ii)    the portrayal of persons in a demeaning manner.

7    Clause 2 of the Code provides that publications “are to be classified in accordance with” the table which is there set out. The issues in the present case concern Item 1 in that table which is as follows:

8    The letters “RC” which appear under the heading “Classification” stand for “Refused Classification”: s 7 of the Act.

9    Section 44(1) of the Act provides as follows:

The Review Board must deal with an application for a review of a decision in the same way that the Board deals with an application for classification of a publication, film or computer game or for approval of an advertisement.

Mr Gaynor’s application for judicial review

10    The primary way in which Mr Gaynor puts his case for judicial review is that the Review Board in making the Decision ignored, overlooked or misunderstood relevant facts or materials, namely (i) the written submissions from interested members of the public, and (ii) a letter from Dr Lesley-anne Ey, a lecturer in Educational Psychology and Child Protection at the University of South Australia.

11    In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [27] Kiefel CJ, Keane, Gordon and Steward JJ set out a long line of High Court authority for the established principle that if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials, that may give rise to jurisdictional error: see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179; Minister for Immigration and Citizenship [2010] HCA 48; (2010) 243 CLR 164 at [27]; Minister for Immigration v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82]–[84]; Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [25]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [13]; Minister for Immigration, Citizenship and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398 at [22]. In applying that principle, however, the Court must bear in mind its limited role in reviewing the exercise of an administrative discretion and not substitute its decision for that of an administrative decision-maker: Plaintiff M1/2021 at [26]; SZJSS at [30].

Written submissions from interested members of the public

12    The Decision refers in a number of places to the Review Board having considered the written submissions from members of the public. In itself, that is not in issue, as Mr Gaynor accepts that the submissions from members of the public were considered, but challenges the quality and extent of that consideration.

13    The Review Board said the following concerning those submissions:

Written submissions from interested members of the public

The Review Board received a large number of emails in response to this review. Overwhelmingly, those in favour of restricting or refusing classification for Gender Queer contained statements that the Review Board considered to be broadly anti-LGBTQIA+. The Review Board gave little weight to these submissions as they contained little or no evidence that the writers had read Gender Queer, or that they understood the content within the context of the publication. The submissions did not demonstrate engagement with the publication.

Most of the written submissions in favour of an Unrestricted classification contained clear and detailed evidence that the writers had read the book and understood the impact of the classifiable elements. The Review Board gave more weight to these submissions as they appeared to have been written by members of the intended audience of Gender Queer who had read and considered the content within the context of the publication.

14    The public submissions made to the Review Board comprise 837 pages of the Court Book (CB 443–1279). There were 611 submissions by about 9,000 people in total (mostly but not entirely from the Australian public). Some 82 of the submissions were emails each bearing the names of 100 people. On my count, 35 of the submissions were in favour of the Review Board retaining an unrestricted classification, and 576 were against that position.

15    If one were to generalise and form a view as to the “overwhelming” or dominant theme of the submissions opposing an unrestricted classification, it would be that the book tolerates or promotes paedophilia, and that such a stance is against the criminal law in Australia and is morally repugnant. Senior Counsel for the Minister accepted that proposition (T44.36–45.19).

16    Few of the submissions opposing an unrestricted classification could rationally be described as “broadly anti-LGBTQIA+”. The Review Board did not say what it meant by that term. I understand the term to include an expression of aversion or dislike towards the sexual practices or experiences of those who identify as lesbian, gay, bisexual, transgender, queer, intersex or asexual (or some sexual identification other than heterosexual). In order to treat the Review Board’s reasons as favourably as possible to the Review Board, I will also proceed on the basis that the description “broadly anti-LGBTQIA+” extends to an expression of the view that heterosexuality represents normality in sexual relations, or that any of the non-heterosexual identities represent abnormality.

17    Some of the public submissions clearly fall within the description of being “broadly anti- LGBTQIA+”. Others are more contestable. Again, in order to treat the Review Board’s reasons favourably to the Review Board, I will include those borderline cases in the category of being “broadly anti-LGBTQIA+”. At the hearing I proposed a list of 52 submissions which could rationally be regarded as “broadly anti-LGBTQIA+”, to which the Minister added a further 14 submissions. The combined list of 66 submissions is as follows: CB 456, 475, 481, 741, 743, 759, 762, 770, 771, 800–1, 816, 822, 835, 837, 842, 855, 858, 859, 867, 869, 872, 880, 903, 917, 920, 922, 924, 925, 928, 936, 943, 948, 954, 979, 996, 1009, 1024, 1027, 1030, 1031, 1079, 1081, 1085, 1109, 1115, 1116, 1118–24, 1126, 1138, 1148, 1166, 1182, 1199, 1208, 1224, 1236, 1239–40, 1246, 1257, 1259, 1263, 1264, 1266, 1271, 1277 and 1278. I have not included in that list objections based simply on sexual activity being depicted in a book which children may read, irrespective of whether the sexual activity in question is between people of the same sex or otherwise falling within the acronym “LGBTQIA+”. Nor have I included objections based on perceptions that some of the sexual activity depicted in the book involves paedophilia, which as I have said is the predominant theme of the public submissions in favour of a restricted classification. The Minister accepted that it was only those 66 submissions, and no others, which could rationally be regarded as “broadly anti-LGBTQIA+” on their face (T62.27–31). The qualifying words “on their face” were included in the Minister’s concession on the basis that the Review Board may have been aware of “other contextual factors” which are not apparent on the face of the submissions, but the Minister could not point to any such actual circumstances (T62.35–63.2).

18    The fundamental issue is simply whether the applicant is correct in submitting that the Review Board ignored, overlooked or misunderstood relevant facts or materials as revealed by its statement that: “Overwhelmingly, those in favour of restricting or refusing classification for Gender Queer contained statements that the Review Board considered to be broadly “anti-LGBTQIA+”. I am not passing any judgment (whether legal, moral or otherwise) on any of the submissions, whether in favour of, or in opposition to, an unrestricted classification.

19    In my view, that submission is plainly correct. Only 66 of the 576 submissions opposing an unrestricted classification can be rationally treated as “broadly anti-LGBTQIA+”. That is not an “overwhelming” number, and no rational person who had actually read the submissions could arrive at the conclusion that it was. Only about 11.5% of the public submissions by number, and less than 1% of the individuals who made submissions, can thus be described as “broadly anti-LGBTQIA+” even on the extended meaning of that term given above. The majority of the Review Board whose reasons were published in the Decision cannot have read and understood the public submissions in expressing the view that they did.

20    The Minister submits that the Review Board must have read and understood the public submissions in order to have expressed the views that the submissions “contained little or no evidence that the writers had read Gender Queer, or that they understood the content within the context of the publication” and “did not demonstrate engagement with the publication”. I disagree. The Review Board may well have formed those impressions merely from a cursory glance at the submissions, and noticing the brevity of many of the submissions, without having actually read all the submissions. That would be consistent with the Review Board’s misinformed view that, overwhelmingly, the submissions were “broadly anti-LGBTQIA+”.

21    The Minister also submits that in the circumstances of the present case, where there is no reclassification request by the Minister triggering the obligation to invite and take into account submissions about the matter (see ss 39–41 of the Act), there is no obligation on the Review Board to take submissions from the public into account. The Minister further submits that the Review Board was not compelled, once it asked for submissions, to consider them, relying on Palmer v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1113 at [65]–[66] and [107]–[110] (Raper J), Greenpeace Australia Pacific Pty Ltd v Chief Executive Officer of the Australian Radiation Protection and Nuclear Safety Agency [2002] FCA 1144; (2002) 125 FCR 186 at [69] (19th bullet point) (Beaumont J) and EUF20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 130; (2023) 298 FCR 492 at [66] (Abraham, O’Sullivan and Raper JJ). The short answer to those submissions is that the Review Board did in fact regard the public submissions in this matter as relevant, but decided to give them little weight. Having formed the view that the public submissions were relevant, and should not be treated as having no weight at all, the Review Board was obliged not to ignore, overlook or misunderstand them.

22    The Minister further submits that whether the Review Board was correct in referring to the submissions in favour of restricting or refusing classification as being overwhelmingly “broadly anti-LGBTQIA+” is beside the point, because the reason for the Review Board giving little weight to those submissions was not that they were “broadly anti-LGBTQIA+”. The Minister submits that the real reason for so treating the submissions was that they contained little or no evidence that the writers had read Gender Queer, or that they understood the content within the context of the publication, and did not demonstrate engagement with the publication. The fundamental flaw in that submission is that, as I have said above, the Review Board’s description of the public submissions overwhelmingly being “broadly anti-LGBTQIA+” demonstrates that the Review Board ignored, overlooked or misunderstood those submissions. In light of that finding, the Review Board’s view that the submissions contained little or no evidence that the writers had read the publication, understood the content within the context of the publication, or failed to demonstrate engagement with the publication also proceed from, and are infected by, the Review Board having ignored, overlooked or misunderstood the submissions.

23    In the circumstances of this case, Mr Gaynor has established jurisdictional error on the part of the Review Board in ignoring, overlooking or misunderstanding relevant facts or materials, being the written submissions from interested members of the public. That in itself is sufficient to justify an order quashing the Decision and requiring the Review Board to conduct its review function according to law.

The Letter from Dr Ey

24    The letter from Dr Ey relied on by Mr Gaynor contains the following:

I was contacted to review an image of concern depicting a highly stylised drawing of a work of ancient Greek art depicting a sexual encounter between an ancient Greek scholar and his student.

It is my opinion that this image depicts a full-grown man and a child aged approximately 12 years of age. From a child development perspective, boys go through a growth spurt at around 12 years of age; they grow pubic hair, and their penis enlarges, and a height spurt begins approximately six months later. They experience spermarche, and at approximately 14 years they have another height spurt and put on weight, their voice deepens, and facial hair begins to grow. At about 15 years, their penis, testes and pubic hair growth is complete, and they have reached the peak of their strength and adult height. The male child depicted in this picture is clearly half the size of the male adult in physical structure. The child has no, or little pubic hair and his penis size is much smaller than a typical adult size penis suggesting it has not reach full maturation. Boys commonly reach full secondary sexual maturation between the age of 15-17 years.

My concern about this image is that it depicts sexual activity between a child and an adult which is classified child sexual abuse. Images depicting sexual abuse of a child is illegal, immoral and offensive to a reasonable adult. The availability of such image’s [sic] risks normalising child sexual abuse. Additionally, an image depicting a sexual encounter between an ancient Greek scholar and his student poses a further moral dilemma of a sexual relationship between a teacher and student. This is also against professional codes of practice, even if a student is an adult, due to power differentials and conflict of interest https://www.universitiesaustralia.edu.au/media-item/relationships-between-academic-supervisors-and-their-students-are-never-okay/

I strongly recommend that this image be removed from literature aimed at adolescents and young people in Australia. Despite that the picture is classified ancient Greek art, moral standards relative to engaging in sexual activity with children have shifted immensely since the creation of the original work and such activity is now illegal.

25    The passage of the Decision of the Review Board dealing with Dr Ey’s letter is as follows:

The panel at the bottom of page 135 depicts the author lying on a couch at approximately age 14, fully clothed, eyes closed, arms resting across eir mid-chest area. Above the author is a piece of text that reads, ‘An elaborate fantasy based on Plato’s Symposium with an arrow pointing to a framed artwork inside a thought bubble. Inside the thought bubble, we see an image of two nude male and a cleanshaven, younger-looking male. The bearded male is kneeling before the cleanshaven male with one hand resting just beneath the cleanshaven male’s genitals. The image of the males is not titled but the Classification Board, the Review Board, ALIA, and the Applicant have all identified it as a highly stylised depiction of a work of pottery art attributed to the Brygos painter, dated around 4th BC Athens.

Mr Gaynor submitted that the Classification Board had found that the depiction was of a child under the age of 18 years engaged in a sexual activity with a man, in the context of the author’s discovery of masturbation and “fetish habits and fantasies about paedophilia”. Mr Gaynor included a letter from Dr Lesley-anne Ey, a lecturer in Educational Psychology and Child Protection at the University of South Australia. Dr Ey stated her opinion that the image depicts sexual activity between a full-grown man and a child aged approximately 12 years.

The Review Board considered Mr Gaynor’s submission and noted that the paragraph at the top of page 5 of the Classification Board’s decision report contains an error and poor wording that has led to a misinterpretation by the Applicant. Specifically, the Classification Board states that the image on “page 134” of Gender Queer “does not depict a child under 18 years in a way that offends against the standards of morality, decency and propriety generally accepted by reasonable adults …” The Review Board understands that the Classification Board is referring to the panel image at the bottom of page 135 of Gender Queer, and not to an image on page 134. The Review Board determined that this is a typo made in error.

The Review Board notes Mr Gaynor’s submission that the Classification Board’s findings in the paragraph at the top of page 5 of the decision report serve as an admission that the Classification Board has identified ‘a child under 18 years’ in the Greek artwork, and that the Classification Board, therefore, should have classified Gender Queer as ‘refused classification’. The Review Board considered the Classification Board’s statement and determined it not to be an admission that the Greek artwork contains a depiction of a minor, but that the Classification Board is referencing the section of the Classification Guidelines for Publications that sets out the criteria for classifying a publication ‘refused classification’. The Review Board’s understanding of the Classification Board’s statement is that the Classification Board determined that the image on page 135 of Gender Queer does not depict a child under 18 years, nor does it depict a child, nor anyone, in a way that offends against the standards of morality, decency and propriety generally accepted by reasonable adults. In any event, as set out below, the Review Board determine that the image does not depict a child under 18 years, nor does it depict a child, nor anyone, in a way that offends against the standards of morality, decency and propriety generally accepted by reasonable adults.

As noted by the Classification Board, the Greek artwork is “a highly stylised drawing of a work of ancient Greek art”. The image is depicted within the same square symbols that surround the original work. The inclusion by the illustrator of the square symbols around the males is a strong indicator that the image is a stylised depiction of the flat, inanimate pottery art, and sets the artwork within its historical context. The Review Board considers that the artwork is an artist’s impression of the bona fide artwork that contains less details and realism than the original work, and is less realistic, sexual, intimate, and evocative than the original work. The image is tertiary to the primary image of the author on the couch and the secondary reference to Plato’s Symposium, so is less active than the original artwork, which serves as the primary image on the ceramic.

The Review Board notes that the Applicant has speculated in his submission the ages of the males within the panel image; however, the Review Board is of the opinion that while the precise ages of the males in both the original artwork and the panel image are unclear, the Review Board is satisfied that the males are not children. The Review Board could not find any indicators in the publication that conclusively or definitely suggest whether either of the males in the panel image are minors. The Review Board also notes that the publication contains many examples of adults who appear to be depicted as minors, including numerous depictions of the author’s mother.

The Applicant submits that the panel image on page 135 depicts the author fantasising about paedophilia. The Review Board determined that the Greek artwork inside the panel image on page 135 is a depiction of an older-looking male and a younger-looking male, and not a depiction of paedophilia, child exploitation, child pornography, or any other interaction between an adult and a minor. The Review Board notes the Classification Board’s findings that the image likely depicts a sexual encounter between an ancient Greek scholar and his student. The Review Board rejects the Applicant’s submission that ‘student’ means ‘child’.

26    In a later passage in the Decision, the Review Board stated as follows:

The Review Board agrees with the Applicant’s submission that the image would be likely considered criminal if the males were real people depicted contemporaneously, and the males were an adult and a minor, and the males were found to be involved in a sexual activity. The Review Board shares the Applicant’s view that depictions of children engaged in sexual activity are beyond the norms of morality or decency accepted by society, as well as the Applicant’s concern for victims of child abuse. The Review Board agrees with submissions by the Applicant, ALIA, members of the public, and the Classification Board that state minors should be protected from material that is likely to harm or disturb them.

The Review Board found that the depiction on page 135 would not cause offence to a reasonable adult because the panel does not contain a detailed or realistic description or depiction of sexual activity, and it is not offensive, gratuitous, exploitative, or explicit. As the Classification Board notes in their Decision Report, the Greek artwork is highly stylised and justified in its historical content and the narrative context of the publication.

27    As with the written submissions from interested members of the public, Mr Gaynor accepts that the Review Board gave some consideration to Dr Ey’s letter, but challenges the extent and quality of that consideration.

28    Dr Ey’s letter makes two basic points about the image in question. The first is that, in her opinion, the image depicts sexual activity between a child and an adult, which is illegal, immoral and offensive to a reasonable adult. The second point is that the image depicts a sexual encounter between and a teacher and his student, which is against professional codes of practice even if the student is an adult, and is not tolerated by universities in Australia.

29    As to the first point, in my view it cannot be said that the Review Board has ignored, overlooked or misunderstood the contents of Dr Ey’s letter in relation to her opinion that the image depicts sexual activity between a child and an adult. The Review Board expressly dealt with Dr Ey’s opinion that the image depicts sexual activity between a full-grown man and a child aged approximately 12 years, and formed a different view, namely that there was no child under 18 years depicted in the image. I find that conclusion by the Review Board surprising, but I note that Mr Gaynor has not contended in these proceedings that the Review Board’s decision as to that matter is so unreasonable that no reasonable decision-maker could have reached it. Although the Review Board’s reasoning is very brief, the Review Board did read and understand this aspect of Dr Ey’s letter. Accordingly, Mr Gaynor has not established this ground of his application for judicial review.

30    As to the second of the two basic points made by Dr Ey, namely that the image depicts a sexual encounter between a teacher and his student, I cannot see any evidence as to the Review Board having read and understood that this was an additional, and separate, basis for Dr Ey’s opinion. At the end of the lengthier of the two passages from the Decision which I have extracted above, the Review Board noted that the Classification Board’s finding was that the image likely depicts a sexual encounter between an ancient Greek scholar and his student, and the Review Board rejected Mr Gaynor’s submission that “student” means “child”. However, the Review Board did not then proceed to consider whether the teacher-student relationship was itself problematic, and appears to have ignored, overlooked or misunderstood that this was a separate objection made by Dr Ey. The Minister submits that the aspect of the image involving the teacher-student relationship is encompassed in the Review Board’s determination that the image does not depict “anyone, in a way that offends against the standards of morality, decency and propriety generally accepted by reasonable adults”. While the teacher-student aspect of the image may be encompassed by the strictly literal meaning of those words, in my view it is much more likely than not that the Review Board has ignored, overlooked or misunderstood that second aspect of Dr Ey’s letter. Otherwise, the Review Board would have included in its summary of Dr Ey’s letter, and dealt expressly with, the teacher-student aspect of the image, given the importance of that aspect in Dr Ey’s letter.

31    Accordingly, that second aspect of Dr Ey’s letter also gives rise to jurisdictional error by the Review Board.

Conclusion

32    Having reached those conclusions, it is not necessary to consider Mr Gaynor’s further ground of judicial review, namely whether the Review Board took into account an irrelevant consideration in its comment concerning the written submissions from the public being overwhelmingly “broadly anti-LGBTQI+”.

33    Mr Gaynor has established jurisdictional error. It is appropriate that the Decision and the associated Classification Certificate be quashed and that an order in the nature of mandamus be made to compel the Review Board to determine the matter according to law. Mr Gaynor is entitled to an order that the Minister pay his costs of the proceedings.

Associate:

Dated:    14 October 2024