"Likely to cause offence to a reasonable adult"
125 A central plank in Adultshop's attack upon the Review Board's decision was the proposition that the phrase 'likely to cause offence to a reasonable adult' imports a test of whether a majority of Australians would be likely to be offended.
126 Senior Counsel for Adultshop called in aid the remarks of Wheeler JA in Hutchins v The State of Western Australia [2006] WASCA 258 at [4]. Her Honour there observed that the broad social purposes of censorship include ensuring that ordinary members of the community are not affronted by the display of material to which a majority of reasonable adults would object.
127 It is of course well established that the general purpose and policy of a statutory provision are a guide to its proper construction: see Australian Broadcasting Authority v Project Blue Sky (1998) 194 CLR 355 at [69] - [71]; see also CIC Insurance Limited v Bankstown Football Club Limited (1995) 187 CLR 384 at 408. Ordinarily, the purpose will be gleaned from the legislative history and other extrinsic material as well as from the provisions of the statute considered as a whole: Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 112-113 per McHugh J. Regard may be paid to an object clause but it is to be read in light of the overall statutory regime: IW v City of Perth (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J.
128 Wheeler JA's observations in Hutchins were not based upon a consideration of the extensive material or the statute as a whole. Nor was her Honour considering the cooperative legislative scheme which is the subject of these proceedings. Rather, her Honour's remarks were directed at the broad social purpose of this type of legislation. A statement of legislative purpose at this level of generality cannot displace the construction of the statute which emerges from an analysis of the language of the provision in its full context: Victims Compensation Fund v Brown (2002) 54 NSWLR 668 at [9] - [10] per Spigelman CJ; his Honour's dissenting judgment was approved by the High Court in Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260.
129 It follows in my view that the observations of Wheeler JA in Hutchins are not authority for the proposition that the words "likely to cause offence to a reasonable adult" imports a test of whether a majority of Australians would be likely to be offended. Moreover, if her Honour intended to say that the test is one of ascertaining the views of a simple majority, that is, 51% of the population, I respectfully disagree. The legislative history, overseas and Australian authority as well as the construction of the phrase in its statutory context all point against that construction.
The legislative history
130 The genesis of the co-operative legislative scheme for censorship of films and other publications is to be found in the Australian Law Reform Commission Report No. 55, Censorship Procedure. The ALRC Report was produced following upon a reference from the then Commonwealth Attorney-General dated 10 May 1990.
131 The Attorney noted in the terms of reference to the ALRC that the Commonwealth, the States and the Territories were in broad agreement as to the policy that ought to be pursued in relation to the censorship of imported and locally produced films. The terms of reference also noted that the ALRC was to draft legislation to give effect to its recommendations.
132 The ALRC observed at [1.7] that the objective of Australian censorship laws is to regulate the availability of films and publications within the broad framework of 'general community standards'.
133 The draft classification bill prepared by the ALRC was in similar, but not identical, terms to the Act. It provided, in draft cl 5, that publications and films were to be classified in accordance with the classification code.
134 The ALRC's draft national classification code was set out in a schedule to the draft bill. It was a similar table to that which is now contained in the Code. The X classification applied to films that explicitly depict sexual activity between consenting adults where there is no sexual violence, coercion or non-consent of any kind 'in a way that is likely to cause offence to a reasonable adult'.
135 The ALRC's draft explanatory memorandum did not explain the individual classifications. It merely said that the schedule to the draft bill reproduced the national classification code. However, in its report, the ALRC observed that classification decisions being made by the existing boards were to be made:
"… on a judgment of how much the material offends, or is likely to offend, the standards or sensibilities of the reasonable adult. This judgment is, and because of its nature can only be, a subjective one."
136 The ALRC recognized the need for classification decisions to reflect the community's views. It said that there should be a strong emphasis on public participation and consultation in the classification boards' work: see [2.5] of the ALRC Report.
137 The ALRC also recognized that the classification criteria in the draft code were broad. It agreed with the need for guidelines but recommended that they be issued by the federal Attorney-General after consultation with the States and Territories: [3.7] of the ALRC Report. It commented that the Guidelines are:
"… an important way of ensuring that the classification criteria reflect community standards, without the need for constant changes to the national code.". See [3.8] of the ALRC Report.
138 Although the ALRC did not explain the concept of 'a reasonable adult', three points emerge from its discussion of the test. First, the application of the test is to reflect 'community views'. Second, it involves an element of subjectivity, but it is expected to reflect community views through the broadly representative nature of the classifying body.
139 The third point is that guidance as to community standards is to be found in the classification guidelines which are intended to be an expression of current standards, based upon public input: see ALRC Report at [3.8].
140 The regime proposed by the ALRC, which is for present purposes virtually identical with that contained in the Act and the Code, is not the same as a majoritarian test for what is likely to cause offence to a reasonable adult. What the ALRC proposed was that the Review Board make its own assessment of how much the material is likely to offend the sensibilities of the reasonable adult. This is a value judgment which is to be guided by the classification guidelines as indicative of current community standards.
141 The process envisaged by the ALRC was not that the Review Board would simply form an opinion as to whether 51% of the community would, or would not, be offended. Instead, the ALRC's emphasis upon the reaction of the reasonable adult and the importance of community views show, in my opinion, that the process was not to be a mechanistic one. It was to involve a value judgment about the views of the reasonable adult in the diverse Australian community.
142 As with any value judgment, this involves an element of subjectivity which is not based upon precise measurement.
Overseas Authority
143 It is of course critical to construe the phrase at issue in these proceedings in its own statutory context. Overseas regimes are different and accordingly the decisions of courts in other jurisdictions will not, as a general rule, be of assistance in construing the Code.
144 Nevertheless, it does seem to me that the approach of the House of Lords in Director of Public Prosecutions v Collins [2006] 4 All ER 602 provides some assistance in determining what is intended by the concept of "offence to a reasonable adult".
145 In Director of Public Prosecutions v Collins the respondent had been charged with an offence under s 127(1)(a) of the Communications Act 2003 (UK), which provided, inter alia, that a person was guilty of an offence if he or she sent, by means of a public electronic communications system, a message that was "grossly offensive". The charges arose from telephone calls to a member of Parliament and his staff. The respondent had strong views on immigration policy and shouted references to "wogs", "Pakis" and "black bastards".
146 Their Lordships were of the view that the question of whether a message is "grossly offensive" is to be determined by the standards of an open and just multi-racial society and that the words used must be considered in their context and all relevant circumstances.
147 Lord Bingham observed at [9] that there can be no yardstick of gross offensiveness other than by the application of reasonably enlightened, and not perfectionist contemporary standards. His Lordship concluded at [13] that the respondent's messages were grossly offensive and would be found "by a reasonable person" to be so.
148 Lord Carswell said at [18] that the Court's task was to determine whether the communications were grossly offensive "in the eyes of reasonable people." His Lordship also said at [21] that what mattered was "whether reasonable persons in our society would find it grossly offensive."
149 Lord Carswell also referred at [22] to two factors which justified the appeal. He said:
"First, it appears that the justices may have placed some weight on the reaction of the actual listeners to the messages, rather than considering the reactions of reasonable members of society in general. Secondly, it was conceded by the respondent's counsel in the Divisional Court that a member of a relevant ethnic minority who heard the messages would have found them grossly offensive. If one accepts the correctness of that concession, as I believe one should, then one cannot easily escape the standards of an open and just multiracial society. The terms used were opprobrious and insulting, and not accidentally so. I am satisfied that reasonable citizens, not only members of the ethnic minorities referred to by the terms, would find them grossly offensive."
150 This passage provides support for the view that the test of what is likely to cause offence to a reasonable adult is not a simple majoritarian one. It takes into account the wide diversity of views that may be held by different sectors within today's society.
151 Moreover, the decision recognises that what is likely to cause offence to a reasonable adult musts be determined in each case in its entire context. It is not a question of whether the racial labels, or depictions of sexual activity, are likely to cause such offence. It is whether statements or the cinematographic images considered in their entire context meet the test.
Australian authority
152 Australian authority on offensive behaviour also recognises the need to take account of contemporary standards, the context of the act in question and the balancing exercise that is involved.
153 In Wurramura v Haymon (1987) 44 NTR 1, the appellants had been convicted of offensive behaviour for the act of sexual intercourse in a private house, at night with the light on in full view of a public street. On appeal, Asche J said, at 5, that the concept of offensive behaviour depends upon the circumstances in which it takes place and it must be looked at in a contemporary light.
154 His Honour continued as follows:
"No doubt on the question of sexual mores the present age is more tolerant than any in the last century, but there are obviously still limits to what the general public will stand. Even in this day and age, performance of the act of sexual intercourse in public would be considered by the normal reasonable citizen of Australia as offensive, and offensive in the sense that some form of legal prohibition should occur. This does not in my mind make the average Australian some form of narrow minded Puritan. It merely means that he or she accepts that there are boundaries (liberal though they may be) which for the sake of themselves and their families should not be transgressed."
155 Justice Asche also said that behaviour is not necessarily offensive because it offends a particular person; there is a wide variety of personal idiosyncrasies. He quoted part of a passage from Shakespeare's The Merchant of Venice but said that, having some Scottish ancestry, he indignantly refused to quote the next few lines. I have no such ancestry, and will therefore happily quote the passage in full:
"Some men there are love not a gaping pig;
Some, that are mad if they behold a cat;
And others, when the bagpipe sings i' the nose,
Cannot contain their urine; for affection,
Mistress of passion, sways it to the mood
Of what it likes or loathes."
156 His Honour went on to say that the law on offensive behaviour is not for the unduly sensitive or the totally permissive. It strikes a balance.
Construction of the phrase in its statutory context
157 Both Director of Public Prosecutions v Collins and Wurramura v Haymon dealt with offensive behaviour under penal statutes rather than depictions of acts likely to cause offence to a reasonable adult under a film classification scheme. Nevertheless, the definition of "offensive" in the Guidelines adopts the ordinary meaning of that term, ie. material which causes outrage or extreme disgust. Both of the authorities to which I have referred would appear to approach the meaning of the term in that sense.
158 It is also to be noted that although the statute under consideration in Director of Public Prosecutions v Collins did not expressly proscribe messages which were (grossly) offensive to "a reasonable person", both Lord Bingham and Lord Carswell proceeded upon the basis that this was to be established in order for a contravention to be made out. Lord Carswell drew no distinction between the concept of "a reasonable person" and that of "reasonable persons."
159 The Act refers in s 11(a) to the standards "generally accepted by reasonable adults". By contrast, the description of the X18+ classification in the Code refers to depictions likely to cause offence to "a reasonable adult". This distinction also appears in s 29(4)(a) and s 29(4)(b) of the Act.
160 I do not consider that anything turns on the difference in this language. Director of Public Prosecutions v Collins suggests that there is no difference between those terms. In any event, in a cooperative legislative scheme which provides for the classification of films, it would be wrong to draw narrow distinctions between "reasonable adults" and "a reasonable adult".
161 The words "a reasonable adult" in the X18+ classification are part of a composite phrase. That phrase has special work to do. It must be considered in light of the objective referred to by the ALRC, namely that censorship, and classification categories, are aimed at regulating the availability of films within the broad framework of general community standards. The Act and the Code establish a regime for classification of films which applies nationally. Community standards differ widely across Australia. The search is not for one reasonable representative person. The scheme takes account of diverse Australia-wide community standards.
162 The Review Board said it had regard to the definition of "reasonable adult" either as contained in the Guidelines or in the Macquarie Dictionary. However, the Guidelines (ie. The Guidelines for Classification of Films and Computer Games) contain no definition of that term. (Nor, for that matter, does the Macquarie Dictionary). There is a definition of "reasonable adult" in the Guidelines for the Classification of Publications, 2005, as follows:
"Possessing common sense and an open mind, and able to balance personal opinion with generally accepted community standards."
163 Even if it is legitimate to take this definition into account, it merely serves to emphasise the breadth of the value judgment which is involved. The concept of generally accepted community standards involves a judgment about the standards of the diverse Australian community. It is for the members of the Review Board, who are to be broadly representative of the community, to make that value judgment of the film in its full context.
The analogy of the "reasonable person" test in the law of negligence
164 In my view, the concept of "the reasonable person" which underlies the law of negligence is of no real assistance in construing the phrase "likely to cause offence to a reasonable person". The objectives of the regulatory scheme which govern the classification of films and other publications bears no similarity to the policy considerations which inform the law of negligence.
165 Nevertheless, the warning recently given by the High Court against a mechanistic approach to the concept of reasonableness is apt.
166 In New South Wales v Fahy [2007] HCA 20; (2007) 81 ALJR 1021, Gleeson CJ observed at [6], that the balancing exercise to be undertaken to determine the standard of "the reasonable person" should not be described as a "calculus". His Honour said that what is involved is a judgment about reasonableness which is not amenable to exact calculation.
167 Chief Justice Gleeson continued at [7] by referring to an earlier authority which pointed out that there are cases in which an unduly mathematical approach to the exercise can lead to an unreasonable result. See also at [57] per Gummow and Hayne JJ.
"Likely"
168 Nor do I think that the word "likely" in the phrase at hand calls for a rigid or technical approach. Mr Walters SC, for Adultshop, referred to the discussion of the meaning of "likely" in Tillmanns Butcheries Pty Limited v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 at 375, 380-382. That question arose in considering the construction of s 45D of the Trade Practices Act where entirely different considerations apply.
169 I do not consider that a statutory body charged with the task of determining whether a sexually explicit film would be likely to cause offence need ask itself whether there is more than a 50% chance that this would be so. The Review Board must engage in a question of judgment, based upon its perception of the community standards of a diverse community. It seems to me that the degree of likelihood that it is required to assess is best described by the "real chance or possibility" test to which Deane J referred in Tillmanns at 382.
Summary of the offensiveness/reasonable adult tests
170 In summary, the "offensiveness" test for the X18+ classification in the Code is not determined by a mechanistic majoritarian approach. It calls for a judgment about the reaction of a reasonable adult in a diverse Australian society.
171 The "reasonable adult" test must accommodate the community standards of Toorak and Newtown as well as those of Kunnanurra and Broken Hill. It must also accommodate the standards of various subgroups within a multi-racial, secular society which nonetheless includes persons of different ages, political, religious and social views.
172 Even if the question of what would be likely to cause offence to a reasonable adult calls for a judgment as to "what most people think," it is a value judgment which is not susceptible to a bright line test.
173 The Code calls for the Review Board to make a judgment on the "reasonable adult" question in deciding whether to classify a film as X18+. This is plain from the words "likely to cause offence to a reasonable adult". Not every film which depicts actual sex will meet this classification. Yet on the approach urged by Adultshop, no film containing real depictions of actual sex between consenting adults, where there is no violence etc, would be so classified. This is because, on Adultshop's approach, no such film would be offensive to a reasonable adult. In light of its own findings on current community standards, the Review Board was correct to reject Adultshop's approach.
Whether the Review Board improperly rejected the expert evidence
174 No error is disclosed in the way in which the Review Board dealt with the expert evidence or the survey evidence. There are three reasons for this.
175 First, the Review Board's findings were not directed by an inflexible application of the Guidelines. The Review Board considered the evidence but found it unhelpful.
176 Second, the expert and survey evidence did not address the question which the Review Board had to answer. That question was whether Viva Erotica depicted actual sexual activity in a way that is likely to cause offence to a reasonable adult. It called for a judgment as to whether the images and the film, viewed in their full context, would cause offence to a reasonable adult member of a diverse society.
177 This question was to be judged by contemporary Australian standards. It involved a consideration of the reactions of a wide variety of adults to the whole of the specific film, Viva Erotica. This question was not answered by evidence at the level of generality of that which was provided by Professor Lumby and Ms Albury. Professor McKee's evidence addressed the wrong question because he focussed only on the attitudes of consumers of sexually explicit films.
178 The third reason why no error is disclosed is that Adultshop's submissions on this point amounted to a claim for merits review. This is plain from its lengthy complaints about the reasons given by the Review Board for its treatment of the expert and survey evidence.
Wednesbury unreasonableness
179 On appeal in Brown v Classification Review Board, Sundberg J said that a court should only interfere with the decision of the Board (or the Review Board) if the conclusion was not reasonably open on the material before the Board. This states the test for unreasonableness in similar terms to that of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119.
180 Adultshop submitted that the Review Board's decision was unreasonable within this test on two bases. First, the Review Board "unreasonably refused to accept persuasive, unchallenged and uncontradicted evidence in deciding that Viva Erotica was offensive to a majority of adults."
181 The second ground of unreasonableness was said to be that the Review Board relied on facts for which no supporting evidence existed.
182 Both of these contentions fail. The Review Board was not bound to accept the survey and expert evidence. Moreover, as I have said, the question for the Review Board was not whether the film was offensive to a majority of Australian adults. Furthermore, for reasons set out below, the no evidence ground cannot be sustained.
183 Finally, the X18+ classification, as described in the Guidelines, appears to apply in every respect to the content of Viva Erotica. It is difficult, if not impossible to see how the Wednesbury unreasonableness ground can have any application to the Review Board's decision.
The "no evidence" ground
184 In order to succeed on the "no evidence" ground contained in 5(1)(h) and 5(3)(b) of the ADJR Act, Adultshop must do more than negative the existence of a fact on which the decision is based; it must adduce evidence positively establishing the contrary fact: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [580] per Weinberg J.
185 This ground of review is confined to findings of fact; it does not extend to expressions of opinion; Reserve Bank Case at [581]. The fact, as to which there is said to be no evidence, must be shown to be critical to the impugned decision: Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; Reserve Bank Case at [584].
186 Adultshop contended that the relevant fact was the finding that there had been extensive community consultation in the process of updating the Guidelines in May 2005 and in the debate over the amendments to the X classification at the turn of the decade.
187 However, the "no evidence" ground is not established within the principles stated in the Reserve Bank Case. First, Adultshop did not positively establish the contrary fact. The submission contained in [131]-[134] of Adultshop's written submissions deals with the question of research into community attitudes to the X category. However, this was not evidence which positively established that there had been no consultation in 2000 or in 2005. Second, the existence of community consultation was not critical to the Review Board's ultimate finding that the film was likely to cause offence to a reasonable adult.
Conclusion and Orders
188 All of the grounds of review fail. The orders I will make are that the application be dismissed with costs.
I certify that the preceding one hundred and eighty-eight (188) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.