Calvista Australia Pty Ltd v Administrative Appeals Tribunal

1. The appeal is allowed, the second respondent to pay the applicant's costs.
2. The decision of the Administrative Appeals Tribunal made on 21 February 2013 affirming the decision under review is set aside.
3. The case is remitted to be heard and decided again by the Tribunal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 493 of 2013

JUDGE: ROBERTSON J DATE: 29 AUGUST 2013 PLACE: SYDNEY

Introduction 1 This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from the decision of the Administrative Appeals Tribunal (the Tribunal) made on 21 February 2013 affirming the decision under review. There is also an application for judicial review of the decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). 2 The Director of the Classification Board (the Director), who was authorised by the Attorney-General to decide the matter, on 16 December 2011 refused the application by Calvista Australia Pty Ltd (Calvista) made under reg 4A(2) of the Customs (Prohibited Imports) Regulations 1956 (Cth) (the Regulations) for a permission to import films. 3 The application which was refused was dated 5 April 2011 and was in the following terms: My client seeks permission, in writing, pursuant to subregulation 4A(2) of the [Regulations] to import films (as defined in subregulation 4A(1)) which may deal with matters of sex or violence (in the manner described by subregulation 4A(1A)(a)) of the Regulations. The essential ground, as explained below, of my client's application for permission is that my client proposes to take all necessary steps to ensure that the films are edited and fully compliant with the classification regime imposed by the [Classification Act] before copies are made of the films and before they are made available for sale. 4 The form of the permission sought by Calvista before the Tribunal and the conditions proposed by Calvista to which the permission would be subject are set out at [19] and [20] below.

The Regulations 5 Regulation 4A(2) of the Regulations provided: 4A(2) The importation of goods to which this regulation applies is prohibited unless a permission, in writing, to import the goods has been granted by the Attorney-General or a person authorized by the Attorney-General for the purposes of this subregulation. 6 That regulation applied to the following goods: 4A(1A) This regulation applies to publications and any other goods, that: (a) describe, depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be imported; or (b) describe or depict in a way that is likely to cause offence to a reasonable adult, a person who is, or who appears to be, a child under 18 (whether the person is engaged in sexual activity or not); or (d) promote, incite or instruct in matters of crime or violence; or (e) promote or incite the misuse of a drug specified in Schedule 4; or (f) advocate the doing of a terrorist act. 7 "Publication" was defined in reg 4A(1) to include any film. In the same regulation "film" was defined to include a cinematograph film, a slide, video tape and video disc and any other form of recording from which a visual image, including a computer generated image, can be produced, but not to include a computer game. 8 Regulation 4A(2AA) provided: (2AA) In considering whether to grant a permission under subregulation (2), the Attorney-General or the person authorised by the Attorney-General is to have regard to: (a) the purposes for which the goods are to be imported; and (b) the extent to which the person to whom any permission to import the goods would be granted conducts activities of an artistic or educational, or of a cultural or scientific, nature to which the goods relate; and (c) the reputation of the person referred to in paragraph (b), both generally and in relation to an activity referred to in that paragraph; and (d) the ability of that person to meet conditions that may be imposed under subregulaton (3) in relation to the goods; and (e) any other relevant matters. 9 Regulation 4A(3) provided: 4A(3) A permission under this regulation shall be subject to such conditions imposing requirements or prohibitions on the person to whom the permission is granted with respect to the custody, use, reproduction, disposal, destruction or exportation of the goods, or with respect to accounting for the goods, as the Attorney-General or a person authorized by the Attorney-General for the purposes of subregulation (2) thinks necessary to ensure that the goods are not used otherwise than for the purpose for which he grants the permission. 10 By s 50 of the Customs Act 1901 (Cth) the Governor-General may, by regulation, prohibit the importation of goods into Australia. By s 50(2)(c) that power, by regulation, to prohibit the importation of goods may be exercised by prohibiting the importation of goods unless specified conditions or restrictions are complied with. 11 Section 50(3) provided as follows: 50(3) Without limiting the generality of paragraph (2)(c), the regulations: (a) may provide that the importation of the goods is prohibited unless a licence, permission, consent or approval to import the goods or a class of goods in which the goods are included has been granted as prescribed by the regulations made under this Act or the Therapeutic Goods Act 1989; and (b) in relation to licences or permissions granted as prescribed by regulations made under this Act - may make provision for and in relation to: (i) the assignment of licences or permissions so granted or of licences or permissions included in a prescribed class of licences or permissions so granted; (ii) the granting of a licence or permission to import goods subject to compliance with conditions or requirements, either before or after the importation of the goods, by the holder of the licence or permission at the time the goods are imported; (iii) the surrender of a licence or permission to import goods and, in particular, without limiting the generality of the foregoing, the surrender of a licence or permission to import goods in exchange for the granting to the holder of the surrendered licence or permission of another licence or permission or other licences or permissions to import goods; and (iv) the revocation of a licence or permission that is granted subject to a condition or requirement to be complied with by a person for a failure by the person to comply with the condition or requirement, whether or not the person is charged with an offence against subsection (4) in respect of the failure. 12 By s 50(3A), a condition may be a condition that before the expiration of the period specified in the permission or that period as extended with the approval of the Collector, that person shall export, or cause the exportation of, the goods from Australia. 13 By s 50(4) a person is guilty of an offence if a permission has been granted under the regulations, the permission is subject to a condition or requirement to be complied with by the person; the person engages in conduct; and the person's conduct contravenes the condition or requirement. The penalty is 100 penalty units and s 50(4) is an offence of strict liability. 14 By s 229(1)(ba), where the importation of goods has been prohibited unless a permission containing conditions or requirements has been granted and where those conditions or requirements have not been complied with, those goods are forfeited to the Crown. 15 By s 233(1)(b), it is an offence to import any prohibited imports, the applicable penalty being prescribed by s 233AB(2) as, relevantly, 1,000 penalty units. 16 Section 33 of the Acts Interpretation Act 1901 (Cth) provided, relevantly: Scope of powers in respect of matters (3A) Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) with respect to particular matters (however the matters are described), the power shall be construed as including a power to make, grant or issue such an instrument with respect to some only of those matters or with respect to a particular class or particular classes of those matters and to make different provision with respect to different matters or different classes of matters. (3AB) If an Act confers on a person or authority the power to make an instrument (except a legislative instrument or a rule of court): (a) specifying, declaring or prescribing a matter; or (b) doing anything in relation to a matter; then, in exercising the power, the person or authority may identify the matter by reference to a class or classes of matters. Note: This provision has a parallel, in relation to legislative instruments, in section 13 of the Legislative Instruments Act 2003. (3AC) For the purposes of subsections (3A) and (3AB), matter includes thing, person and animal. (3B) Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall not be taken, by implication, not to include the power to make provision for or in relation to a particular aspect of a matter by reason only that provision is made by the Act in relation to another aspect of that matter or in relation to another matter. 17 Section 2 of the Acts Interpretation Act 1901 provided: Application of Act (1) This Act applies to all Acts (including this Act). Note: This Act also applies to legislative instruments and other instruments made under an Act: see subsection 13(1) of the Legislative Instruments Act 2003 and subsection 46(1) of this Act. (2) However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention. 18 For completeness I set out s 13 of the Legislative Instruments Act 2003 (Cth) which provided: 13 Construction of legislative instruments (1) If enabling legislation confers on a rule-maker the power to make a legislative instrument, then, unless the contrary intention appears: (a) the Acts Interpretation Act 1901 applies to any legislative instrument so made as if it were an Act and as if each provision of the legislative instrument were a section of an Act; and (b) expressions used in any legislative instrument so made have the same meaning as in the enabling legislation as in force from time to time; and (c) any legislative instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the rule-maker. (2) If any legislative instrument would, but for this subsection, be construed as being in excess of the rule-maker's power, it is to be taken to be a valid instrument to the extent to which it is not in excess of that power. (3) If enabling legislation confers on a rule-maker the power to make a legislative instrument: (a) specifying, declaring or prescribing a matter; or (b) doing anything in relation to a matter; then, in exercising the power, the rule-maker may identify the matter by referring to a class or classes of matters. (4) For the purposes of subsection (3), matter includes thing, person and animal. Note: This section has a parallel, in relation to instruments that are not legislative instruments, in subsection 33(3AB) and section 46 of the Acts Interpretation Act 1901.

The Tribunal's decision 19 Before the Tribunal, Calvista sought a permission in the following terms: Any "film", as defined in regulation 4A(1) of the Customs (Prohibited Imports) Regulations 1956 (the Regulations), that describes, depicts, expresses or otherwise deals with matters of sex and/or violence in such a way that it offends against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that it should not be imported, being a film from any one of the following named studios: Digital Sin and Smash Pictures: but not including any film that would fall within regulation 4A(1)(b) [sic] of the Regulations. 20 Calvista also proposed that the permission be subject to the following conditions and any other reasonable conditions proposed by the Director: (a) the Applicant may import films that are objectionable goods only for the purpose of submitting those films to the Classification Board for classification; (b) the Applicant must, at least 10 days prior to each importation, provide written notice to the Respondent of the Applicant's intention to import unclassified films that may be objectionable goods (Notice); (c) the Notice must specify the date of importation and include a list of all titles that the Applicant intends to import; (d) the Applicant must provide the Notice and a copy of the permission to import objectionable goods to the Australian Customs and Border Protection Service at the point of importation; (e) the Applicant must ensure that the objectionable goods are modified in a bona fide attempt to comply with classification requirements and submitted for classification to the classification Board within three months of importation; (f) the Applicant must not reproduce any material contained in the objectionable goods that is likely to be refused classification, unless necessary for the purpose of modifying that material to comply with classification requirements; (g) the Applicant must not release into the community any objectionable goods containing material that is likely to be refused classification; (h) the Applicant must, within one month of receiving notice from the Classification Board that the objectionable goods have been refused classification: (i) destroy the objectionable goods; or (ii) modify the objectionable goods to be resubmitted for classification; (i) the Applicant must, within three months of importation, destroy any material that is likely to be refused classification; (j) the Applicant must, on request from the Respondent: (i) report on any aspect of compliance with the permission to import objectionable goods; or (ii) provide the Respondent with a list of all films imported under the permission to import objectionable goods. 21 However, as a result of an agreement between the parties, the Tribunal did not consider in detail what, if any, conditions should be imposed. The parties agreed that if the permission sought by Calvista could be granted and if it was appropriate to grant permission then the Tribunal should remit the decision to the Director, to enable the parties to negotiate and agree upon suitable conditions. 22 The Tribunal decided, at [51], that the permission sought could not be granted. The Tribunal's reasoning was as follows: [42] On the plain language of s 50, the discretion to grant import permission under regulation 4A extends to "the goods or a class of goods in which the goods are included" [s 50(3)]. It follows that permission may be granted to import goods within a class of goods under any combination or subset of subregulations 4A(1A)(a) to (f). Even though there is no express limit on the number or the kinds of objectionable goods that may be permitted to be imported under regulation 4A, the use of the definite article suggests that specificity is required in respect of "the goods" in each case. [43] The requirement for specificity is reinforced by the exceptional nature of the discretion. It requires the Attorney-General or an authorised person to determine whether the goods intended for importation should be excepted from the prohibition that otherwise would apply. This requires consideration of the particular goods to which the permission sought relates. It is not a decision that can simply be surrendered or devolved to the importer. Doing so may abrogate the statutory duty of the person authorised to exercise the discretion and it would, in effect, transform the exception into the default position for the importer. Even if Calvista was able to strictly comply with stringent conditions and its reputation was unimpeachable - a question to which we will come below - such a self-regulatory scheme is not consistent with the statutory scheme governing prohibited imports or with the underlying legislative policy. [44] It does not follow, however, that the discretion should only be exercised in exceptional circumstances - the discretion is not expressly fettered in that way. Each case must be assessed on its merits, having due regard to all the matters set out in regulation 4A(2AA). [45] Thus, in principle, while there is no legislative bar that precludes the grant of permission to import goods within a class of "objectionable goods" under regulation 4A, specificity is required in respect of the particular goods to be assessed when deciding whether to permit their importation. Proper exercise of the discretion is preconditioned by sufficiently detailed and reliable information concerning the particular goods to which the permission sought relates. The decision-maker must be reasonably satisfied that the goods the prospective importer seeks permission to import are prohibited imports within the terms of the permission sought. Sufficient information about the goods must be provided to enable the decision-maker to assess all matters that are relevant to exercise of the discretion under regulation 4A(2). [46] Calvista's application refers, generally, to a class of goods, being "objectionable" films from nominated studios that deal with matters of sex and/or violence in a manner that offends against the standards of morality, decency and propriety generally accepted by reasonable adults, within the terms of regulation 4A(1A)(a). Conceivably, films of this nature may have sufficient characteristics in common to constitute a class of goods that is essentially defined and delineated from other goods or classes of goods (including other species of film) by the characteristics of its content. [47] No specific information about the actual films that Calvista seeks permission to import has been provided. Under the conditions Calvista has proposed, notice of its "intention to import unclassified films that may be objectionable goods", including the title of each film, would be provided 10 days prior to importation. It is difficult to understand how any film could reliably be placed within the proposed class of goods, and hence within the terms of the permission sought, without an assessment of its contents prior to importation. This would need to be undertaken on a case by case basis. [48] Take for example a film containing a depiction of a revolting or abhorrent phenomenon that is within the terms of regulation 4A(1A)(a), or a film containing a depiction of a person who is or who appears to be under 18 engaging in sexual activity that is within the terms of regulation 4A(1A)(b). These films would not be within the class of goods covered by Calvista's application and they would not be permitted to be imported. In order to make that assessment and to decide whether to permit the film to be imported, it would be necessary to have regard to the content of the film prior to importation. [49] Similarly, a film containing real depictions of actual sexual activity between consenting adults that is or would be classified X18+ would not be within the terms of regulation 4A, or within the terms of the permission sought. It would not be appropriate for Calvista to seek permission under regulation 4A to import a film of this kind, and it would not be permissible for an authorised person to grant permission under regulation 4A for it to be imported. But the proper characterisation or class of the film would not be known, and a decision about whether permission may be granted to import the film could not be made, until an assessment of its content had been undertaken. [50] Thus, in order to exercise the discretion, and to ascertain whether or not any particular film is within the class of goods Calvista seeks permission to import, it is necessary for an assessment of the content of the film to be made. In our opinion, this cannot properly be addressed in general terms. Films are unique artefacts. Unless Calvista makes a properly formed concession that each film is "objectionable" for the purposes of the Regulations and that the film conforms to the particular class of goods it seeks permission to import, it is difficult to see how the decision-maker could exercise judgment in relation to these threshold questions. It is one thing to seek permission to import a class of goods described by reference to some of the terms of regulation 4A; determining whether the particular goods that would be imported conform to the class description and may be permitted to be imported is entirely another. These matters cannot properly be decided in the abstract, without reference to the particular goods. The terms of the present proposal make no provision for this to occur. [51] The answer to the first question of principle, can the permission sought be granted, is No. (Footnotes omitted, italics in original.) 23 In case the conclusion that the permission sought could not be granted was wrong, the Tribunal went on to consider whether the permission sought should be granted and concluded, at [94], that it should not. The Tribunal's reasons were as follows, having regard to the mandatory considerations in reg 4A(2AA). 24 The Tribunal said, at [56], that in considering whether to grant the permission sought it had assumed that the permission would be subject to conditions at least as stringent as those proposed by Calvista in the proceedings before it. 25 The Tribunal considered the purposes for which the films were to be imported. It said: [57] Calvista contends that the purpose of seeking the permission to import objectionable films containing offensive depictions of sex and/or violence is solely to excise the objectionable material and to submit the edited film for classification. [58] It is self-evident that Calvista's purposes are primarily commercial. It is in the business of importing and distributing films for commercial gain. In order to do so lawfully, the films must first be imported and classified in a category that may be legally be reproduced, sold and distributed. Calvista's purpose in seeking permission to import films dealing with sex and/or violence within the terms of regulation 4A includes the commercial purpose of bringing into existence film products that it can lawfully sell and distribute in Australia. It is also seeking to "avoid any inadvertent breach of the customs legislation". [59] Although Calvista's application relates only to master or time-code copies of individual films, the precise number of individual films that would be imported under the permission, if granted, is not presently established. Thus, in short, for what are ultimately commercial purposes, Calvista proposes to import potentially large numbers of individual "objectionable" films for modification and classification by the Classification Board. [60] In Re Moore and Attorney-General's Department (No 2) (1995) [39 ALD 655] Mr Moore sought permission to import commercial quantities of a book for general release. The Deputy President said that the regulation does not contemplate the granting of permission "to allow wholesale importation such as that sought by Mr Moore" for the "very general purposes proposed", as to do so "would ultimately lead to circumvention of the legislative scheme that is designed to prohibit the importation of goods classified in this category".[at 658] While Calvista's proposal to import objectionable goods may have a commercial character and scale, it is distinguished from Moore's case in one important regard - Calvista is not proposing to release or distribute prohibited imports into the Australian community. Under its proposal, only modified and properly classified films would ultimately be released for sale in full compliance with Commonwealth, State and Territory laws. [61] Calvista contends that a public benefit would flow from the granting of the permission sought: it is said that permitting Calvista to import objectionable films for the purpose of editing and submitting them to the Classification Board will result in objectionable content being excised and such products being lawfully available to Australian consumers. This, it is claimed, will support the national classification arrangements under the cooperative Commonwealth, State and Territory legislative scheme and thereby protect the community at large from the risk of exposure to material that offends against the standards of morality, decency and propriety generally accepted by reasonable adults. It may also protect consumers of adult sexual films from exposure to material that may be harmful or abhorrent. [62] Calvista maintains that the full range of sexual material, including the most heinous and abhorrent content, is openly available on the internet, including on foreign services available in Australia, and that unclassified films are distributed by unscrupulous operators, including grey importers and black market traders, operating outside the classification regime without prosecution and in breach of copyright. It asserts that the grant of permission in the terms proposed may assist to counter activities of this kind, and is in the public interest. [63] The stated purpose for which the goods are to be imported in our view weighs in favour of the grant of the permission sought. (Footnotes omitted, italics in original.) 26 The Tribunal next considered the extent to which Calvista conducted activities of an artistic or educational, or of a cultural or scientific, nature to which the goods related. It considered, at [70], that conceivably the editing and classification of films for public sale and national distribution, even pornographic films without any artistic merit, may be within the meaning of cultural activity or scientific activity. The Tribunal said if that was correct, those considerations weighed in favour of the application. 27 The Tribunal then considered the reputation of Calvista and concluded, at [81], that Calvista's reputation, generally and in relation to the activities set out in reg 4A(2AA)(b), did not weigh in favour of the grant of permission. 28 The Tribunal then considered the ability of Calvista to meet conditions that may be imposed. At [86], the Tribunal concluded that, on balance, Calvista's past conduct raised serious questions about its ability to comply with conditions that may be imposed. This weighed against the grant of the permission sought. 29 The Tribunal considered lastly any other relevant matters. One such matter was the extent to which the permission sought was consistent with the harmonised Commonwealth, State and Territory legislation governing the sale and distribution of films in Australia. The Tribunal said, at [89], that under the terms of Calvista's proposal, public authorities would have little or no control over the potentially large volume of objectionable goods that would be permitted to be imported, and would exercise a monitoring role in respect of compliance. There was a risk that objectionable material may be imported and released. It was far from clear that the level of risk was consistent with the purposes of the national regulatory scheme for films (and related public expectations). 30 The Tribunal stated its conclusion as follows: [90] In our opinion films regarded as so offensive to contemporary community standards as be [sic] adjudged "objectionable" for the purposes of the Customs Act and Regulations ought only be permitted to be imported under very strict conditions by persons or bodies who may be trusted to comply fully with those conditions. It is self-evident that if those conditions were not met, there is a risk that "objectionable goods" imported under the permission might be released to the Australian market. [91] A key factor in considering whether to grant the permission sought is, therefore, the likelihood that the conditions would be complied with. Calvista's reputation and willingness and capacity to meet any proposed conditions are highly relevant to that determination. While it would be in Calvista's self-interest to ensure that the conditions were met, if for no other reason than to ensure that the permission is not revoked, a number of factors lead us to conclude that there is a risk that this might not occur. These include as discussed above the lack of judgement demonstrated by Calvista staff in submitting for classification films that plainly exceed the X18+ classification standard and Calvista's conduct in importing objectionable goods without permission over an extended period. [92] Calvista contends that the permission would facilitate its ability to make available to consumers of adult films in Australia properly classified films of that kind. To the extent this might deter consumers from turning to unclassified material, this arguably bolsters the regulatory regime designed to protect consumers of such products and the community in general. Furthermore, Calvista asserts that its activities asserting copyright in respect of the films it imports may deter unscrupulous operators from trading in grey imports that have not been classified. To the extent that this is correct, it may support the national regulatory arrangements for films and the protections they provide. While this factor favours Calvista's application, it is outweighed in our opinion by the risk that, inadvertently or otherwise, the conditions imposed might not be complied with. [93] Weighing all these considerations we conclude that the scales are tipped against the exercise of the discretion. Negative aspects of Calvista's reputation, and doubts about its ability to comply with conditions, outweigh the positive aspects we have identified. For these reasons we have decided that the preferable decision it [sic] to refuse to grant the permission sought. [94] The answer to the second question, should the permission sought be granted, is No.

The notice of appeal 31 The notice of appeal set out ten questions of law, with sub-questions. So far as pressed, those questions and sub-questions were as follows: 1. Did the decision-maker have power under subregulation 4A(2) of the Regulations to grant the permission sought by the Applicant? 2. Did the decision-maker have no power under subregulation 4A(2) of the Regulations to grant the permission sought by the Applicant because the permission sought lacked the level of specificity required by the Regulations? 3. Where an applicant under subregulation 4A(2) of the Regulations has sought permission in respect of a class of goods, is a decision-maker required to consider the "particular goods" to which the permission sought relates? 4. Is a precondition for the proper exercise of the discretion under subregulation 4A(2) of the Regulations the provision of detailed information "concerning the particular goods [being "actual films"] to which the permission sought relates"? 5. Where a decision is made to grant permission under subregulation 4A(2) of the Regulations so as to authorise goods within a class of goods to be imported: a) does the Customs Act 1901 (Cth) (the Act) or the Regulations require that permission to import be separately and additionally obtained in respect of each good falling within that class? b) does the Act or Regulations require that each good that the importer proposes to import under the permission be assessed prior to importation? 6. Did the Tribunal err in law, in deciding whether there was power under subregulation 4A(2) of the Regulations to grant the permission sought by the Applicant, by having regard to the fact that the Applicant may also import films that would not be covered by that permission (relevantly, because the films would not be objectionable)? 7. Was the Tribunal required by subregulations 4A(2AA) and (3) to take into account: a) the Applicant's proposal that, as a condition of the permission, it engage an independent auditor, at its own cost, to conduct an annual audit of the Applicant's compliance with any conditions imposed on the permission; b) the charitable activities undertaken by the Applicant in relation to the issue of the Applicant's reputation generally? 8. In making the Decision, did the Tribunal make findings of fact without evidence to support those findings? 9. Did the Tribunal breach the rules of natural justice in connection with its making of the Decision? In particular, did it do this by making certain findings adverse to the Applicant in circumstances where the Tribunal: a) failed to provide the Applicant with an opportunity to be heard in relation to those findings; b) failed to contradict the evidence of persons who gave evidence for the Applicant; c) gave no notice to the Applicant that it intended to decide adversely to it on the particular bases that it did; and d) made those adverse findings, which were not obviously open on the material known to the parties. 10. Was the Decision so unreasonable that no reasonable decision-maker would have made it? 32 The grounds relied on in the notice of appeal were as follows: Questions 1-6 1. The Applicant will contend that, in deciding that it lacked power to grant the Applicant the permission that it sought, the Tribunal wrongly answered the questions of law numbered 1 to 6 above. These errors materially affected its conclusion as to the availability of the power to grant the permission sought. 2. The Applicant will contend that the Tribunal was bound to conclude that it had power under subregulation 4A(2) of the Regulations to grant the permission sought by the Applicant. Question 7 3. The Applicant will contend that the Tribunal was required: a) by subregulation 4A(3) of the Regulations, to take into account the Applicant's proposal that, as a condition of the permission, it engage an independent auditor, at its own cost, to conduct an annual audit of the Applicant's compliance with any conditions imposed on the permission; and b) by subregulation 4A(2AA) of the Regulations, to take into account the charitable activities undertaken by the Applicant in relation to the issue of the Applicant's reputation generally. 4. The Tribunal erred in that it failed to take each of these matters into account in making the Decision. Question 8 5. The Tribunal made the following findings of fact which were not supported by evidence or other material (thus constituting errors of law): a) the Applicant had clear knowledge from August 2001 that permission to import objectionable goods was required; b) the Applicant lacked the ability to comply with conditions which might be imposed on it under the terms of the permission; and c) that there was a risk of objectionable goods imported under the permission being released to the Australian market. 6. The Tribunal based the Decision on the existence of the facts referred to in paragraph 5 above, which did not exist. Question 9 7. A breach of the rules of natural justice occurred in connection with the Decision, in that the Tribunal failed to provide the Applicant with an opportunity to be heard in relation to the matters referred to in paragraphs 5(a) to (c) above. 8. The Tribunal made a finding that employees of the Applicant had exercised a lack of judgment in relation to films previously submitted by the Applicant for classification to the Classification Board in circumstances where: a) two employees of the Applicant involved in the reviewing and editing of films were put forward as witnesses; b) the Second Respondent did not seek to cross-examine the Applicant's employees in relation to the films in question; c) the evidence of the Applicant's employees was not contradicted; and d) the Tribunal gave no notice to the Applicant that it intended to make such a finding in relation to the Applicant's employees. 9. The findings referred to in paragraph 5 and 8 were not obviously open to the Tribunal on the known material before it. In particular, the finding in paragraph 5(c) was not obviously open to the Tribunal on the known material before it in circumstances where it was agreed that the material contained in the objectionable goods was readily available by way of downloading or streaming such material from the Internet. Question 10 10. The Applicant will contend that, by reason of the matters in paragraphs 1 to 9 above, the Tribunal acted unreasonably in making the Decision. 33 As I have said, there was also an originating application for judicial review under the Administrative Decisions (Judicial Review) Act 1977. The only parts of that application which require separate mention are the ground of denial of procedural fairness and the declaration sought, in the alternative, that the Director has the power to grant the permission sought by Calvista.

The submissions 34 Calvista submitted that the Tribunal erred in concluding that the use of the definite article in reg 4A(2) ("the goods") impliedly limited the ambit of permissions that may be granted. Calvista submitted that this language did not "suggest that specificity is required", contrary to the Tribunal's analysis. 35 Calvista submitted that the Tribunal also erred in considering that the need for specificity was required because of the "exceptional nature of the discretion". The Tribunal's reasoning seemed to be that if a broad class of goods was identified in a permission, this would effectively devolve the discretion to grant permission to the importer and would make the scheme "self-regulatory". 36 Building on the wrong assumption of the need for specificity, Calvista submitted, the Tribunal implied a further "precondition" on the exercise of the power, namely that "sufficiently detailed and reliable information concerning the particular goods" was provided to the Minister. Calvista submitted that this was not essential in every case and was not a precondition on the exercise of the power but could be no more than a discretionary consideration in any given case. 37 Calvista submitted that, contrary to the Tribunal's reasons, it was not necessary to see each film before giving a notice, under Calvista's proposed condition, that the film may be objectionable goods. 38 Calvista took issue with the reasoning of the Tribunal that films are "unique artefacts" and that a permission could not be granted "without reference to the particular goods". 39 The Director advanced two arguments in support of the contention that the Tribunal lacked the power to grant the permission sought by Calvista. They were the only two arguments the Director relied on. To the extent the Tribunal based its decision on further reasons, criticised by Calvista, the Director did not rely on those further reasons. 40 The Director submitted that reg 4A(2) did not authorise the grant of a permission to import a "class" of objectionable goods. This was not an argument the Director put to the Tribunal but Calvista did not suggest that the argument was not available to the Director in this Court. I shall consider the submission on that basis. 41 The Director referred to Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] and [71] and submitted that Calvista's interpretation simply failed to give any recognition to the differences between the drafting in reg 4A and regs 5 and 4AA. This was on the basis that if reg 4A permitted the granting of permission by reference to a class of goods then the words "a class of goods" in reg 4AA(6) and the words "a class of drugs" in reg 5(3) would have no work to do because if those words were not there they would be implied. 42 Regulation 5(3) referred to the Minister being authorised to "by notice … approve the importation into Australia of a drug specified in, or included in a class of drugs specified in, the notice." Regulation 4AA(6) provided that the regulation did not apply to "plastic explosives included in a class of goods described in Schedule 2." The Director submitted that there was a contrary intention to the ordinary rule in s 33(3AB) of the Acts Interpretation Act in these "cognate regulations". 43 The Director also submitted that the construction she contended for was consistent with the purpose of the provision being to prevent the dissemination of certain goods in Australia. The purpose behind reg 4A was to protect standards of morality, decency and propriety and it was put that it was therefore not surprising that the drafters of the regulation thought it inappropriate and unnecessary to provide a mechanism for the wholesale importation of such films by reference to a class. In this latter respect the Director referred to Vokalek v Commonwealth (2008) 101 SASR 588; 220 FLR 198. 44 The Director also submitted that the purpose of the exemption power could be taken in part from the terms of reg 4A(2AA)(b) setting out the various matters that must be taken into account and expressly referring to activities of an artistic or educational or cultural or scientific nature conducted by the person to whom any permission to import the goods would be granted. 45 The Director also referred to evidence before the Tribunal that previous requests for permission had been for a specified and discrete number of goods and sought on a one-off basis. 46 The Director also submitted that if reg 4A(2) did authorise the grant of a permission to import a class of objectionable goods, the class must be identified in a manner which both (a) did not result in an unlawful sub-delegation of power and (b) permitted the Director to make the assessment required by reg 4A(2AA). In short, the Director submitted that the permission sought by Calvista was not sufficiently specific and on that ground as well the Tribunal had no power to grant it. 47 The Director also referred to a procedural point which was that the application for judicial review should not have been brought, in the alternative, under the Administrative Decisions (Judicial Review) Act 1977. The Director accepted that denial of procedural fairness was available as a ground under s 44 of the Administrative Appeals Tribunal Act 1975. The Director also accepted that the Court had power to make the declaration sought, if not under s 44 then under s 21 of the Federal Court of Australia Act 1976 (Cth), and there was therefore no additional benefit from the Administrative Decisions (Judicial Review) Act application running concurrently with the s 44 appeal. The Director submitted that the Administrative Decisions (Judicial Review) Act application should either be dismissed or should not be dealt with. The Director referred to Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 at [4] per Gray J and at [36] per Rares and Tracey JJ.

The "procedural question" 48 Consistently with the approach in Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463, I do not propose to do more than note the "procedural question" as described by the Director. It was not suggested that at the time the application for judicial review was filed Calvista knew that the Director accepted or would accept that relief for denial of procedural fairness was available under s 44 of the Administrative Appeals Tribunal Act 1975 nor that the Director accepted or would accept that there was power to grant declaratory relief under that section or otherwise, nor that the Director accepted or would accept that the questions of law and the grounds in support of those questions were correctly formulated for the purposes of s 44. 49 In those circumstances I would not regard the combining of the two statutory bases in the one application or in advancing those grounds in submissions as an abuse of process. It seems to me that such a combined application, in the circumstances of this case, was precautionary. Since all the questions and grounds are accepted to be available and the Court has power to grant a declaration, if otherwise appropriate, I will say no more about the "procedural question".

Statutory construction 50 The Director's submission meant that any class, however narrowly defined, fell outside the provision. 51 The submission is to be considered against the background that, by s 50(3)(a) of the Customs Act, regulations may provide that the importation of the goods is prohibited unless a permission to import the goods or class of goods in which the goods are included has been granted as prescribed by regulations made under the Customs Act. 52 Thus the Director was submitting that although the power to make such a regulation was available, it had not been exercised in the case of reg 4A. 53 For the reasons which follow, I see no contrary intention, for the purposes of s 2 of the Acts Interpretation Act 1901, based on reg 5(3) which provides: The Minister may, on the recommendation of the Secretary, by notice published in the Gazette, approve the importation into Australia of a drug specified in, or included in a class of drugs specified in, the notice. 54 First, reg 5 has a quite different structure in that, by reg 5(1), the importation of a drug is prohibited unless the Secretary or an authorised person grants a licence and a permission and other conditions are satisfied but reg 5(1) does not apply to or in relation to a drug in respect of the importation of which an approval is in force under reg 5(3). Regulation 5(3), the terms of which I have set out above, does not in terms deal with a permission but with an approval and is to that extent therefore not comparable with reg 4A(2). 55 Second, the expression "class of drugs" has a usage outside the Regulations: see for example the National Health Act 1953 (Cth) ss 85 and 101. 56 Third, in reg 5 of the Regulations "drug" is defined to include a chemical, compound, or other substance or thing included in Sch 4 and that Schedule, in item 18, refers to a "class of drugs" in relation to barbiturates. 57 Fourth, reg 5(3) was introduced by the Customs (Prohibited Imports) Regulations, being Statutory Rule No 382 of 1980, as a discrete provision and has a subject-matter quite distinct from the subject-matter of reg 4A. Regulation 4A was introduced with its present structure by the Customs (Prohibited Imports) Regulations, being Statutory Rule No 26 of 1963. 58 As to reg 4AA, it is concerned with the importation of plastic explosives. Those goods are prohibited imports unless the Attorney-General or an authorised person has granted a written permission to import the plastic explosives. Regulation 4AA(6) provides that reg 4AA "does not apply to plastic explosives included in a class of goods described in Schedule 2". 59 Again, reg 4AA(6) does not deal with a permission but with a standing exemption. Further, it was introduced by the Customs (Prohibited Imports) Regulations, Select Legislative Instrument No 246 of 2007, as a discrete provision with a subject-matter quite distinct from the subject-matter of reg 4A. (The reference in reg 4AA(6) to Schedule 2 appears not to be apposite.) I therefore see no contrary intention, for the purposes of s 2 of the Acts Interpretation Act 1901, based on reg 4AA(6). 60 Nor do I accept the submission that the construction contended for, to exclude the power to grant a permission by reference to a class of goods, is consistent with the purpose of the provision, being to prevent the dissemination of certain goods in Australia. As I have said, the Director submitted that the purpose behind reg 4A was to protect standards of morality, decency and propriety and it was put that it was therefore not surprising that the drafters of the regulation thought it inappropriate and unnecessary to provide a mechanism for the wholesale importation of such films by reference to a class. 61 As to this submission, it would, in my opinion, have to apply to any of the goods to which the regulation applied, which it does not: it could only apply to reg 4A(1A)(a). Even on the basis that only reg 4A(1A)(a) was relevant, I do not accept that prohibiting the importation of goods, for example, describing matters of sex in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be imported, subject to a permission to import the goods, throws any light on whether the permission, at the level of power, may be framed by reference to a class of goods. 62 As to Vokalek v Commonwealth (2008) 101 SASR 588; 220 FLR 198, in my view it does not stand for the proposition that the purpose of the regulation is to prohibit the importation of goods to which it applies. Read by itself it could be said, as Gray J said at [38], that the purpose of reg 4A(1A)(a) is to prohibit the importation of certain goods into Australia, but his Honour was there dealing with a different argument which was the submission that the use of the word "extent" in the regulation was a reference to the degree to which standards of morality, decency and propriety must be transgressed. More generally in his judgment Gray J referred to the Attorney-General being enabled to control, through conditions, the use to which the goods might be put within Australia, that is, regulating use within Australia through conditions attached to a permission to import. In my opinion the judgment does not assist the Director. A prohibition coupled with a permission is not properly to be construed by reference only to the prohibition, which was the effect of the Director's submission. 63 I derive no assistance on this question of construction from the terms of reg 4A(2AA)(b) referring to whether the person to whom any permission to import the goods would be granted conducts activities of an artistic or educational or of a cultural or scientific nature to which the goods relate. That is merely one of a number of mandatory considerations and does not suggest that permission may or may not be granted by reference to a class of goods to which the regulation applies, as set out in reg 4A(1A). Put differently, in my opinion that mandatory consideration can be taken into account with reference to whether the relevant person importing goods of a class conducted activities of an artistic or educational or cultural or scientific nature to which the class of goods relates. 64 Contrary to the Director's submission, it is not permissible to construe the power by reference to evidence of previous requests made for that power to be exercised. Whether such requests were or were not made throws no light at all on the proper construction of the provision. Were it otherwise, the actions of an applicant for a permission or of the Director in granting or refusing to grant a permission would affect the meaning of the words of the regulation, inconsistently with the values associated with the rule of law. 65 The power is not to be construed by reference to "wholesale importation" by reference to a class because "wholesale importation" and permission in respect of a class of goods are by no means synonymous. 66 As not infrequently happens in questions of statutory construction, the issue of whether or not a power would or might be exercised in particular circumstances is confused with the existence or scope of the power itself. 67 I reject the submissions of the Director that reg 4A(2) does not permit a permission to import a class of goods to which the regulation applies. 68 As to the Director's submission that the class must be identified in a manner which both (a) does not result in an unlawful sub-delegation of power and (b) permits the Director to make the assessment required by reg 4A(2AA) and that these matters required singularity and specificity so that the permission sought by Calvista could not be granted, this submission must also be rejected, for the following reasons. 69 As to the first limb of the argument, in my opinion there would be no sub-delegation. If the Director purported to appoint some other entity, the Director being a delegate of the Minister, there could be an impermissible sub-delegation. Here the point being made is that there would be an abdication of power so that the Director would have said to Calvista "you may import any films within reg 4A(1A)(a) that you wish when you wish and without any conditions attaching to that permission". That is far from having happened here, as the proposed permission and proposed conditions demonstrate. 70 As to the second limb of the argument, the assessment required by reg 4A(2AA), I discern no difficulty in reading the provision as referring to a class of goods wherever the words "the goods" are used. 71 I reject the submission that the terms of reg 4A(2AA) mean that a permission could only be granted in respect of a particular film. In my opinion the considerations there listed are not necessarily directed to individual films. 72 At the level of power, rather than the exercise of it in a particular case, I see no reason why a permission could not be granted to an individual, say the Commissioner of the Australian Federal Police, to import any films from a specified filmmaker advocating the doing of a terrorist act within reg 4A(1A)(f) for the purpose of using those films in criminal prosecutions, until the permission was revoked which, subject to any requirements of procedural fairness, could happen at any time. 73 In the present case no general approval or permission was sought. First, it was with respect to two of the seven or eight subject-matters in reg 4A(1A)(a) only; second, it expressly excluded reg 4A(1A)(b); third, the permission would apply only to Calvista; fourth, it was limited to individual films from two studios; and fifth, it was only for the purpose of submitting those films to the Classification Board for classification. One of the further conditions proposed was that notice to be given by Calvista at least 10 days prior to each importation and such notice must specify the date of importation and include a list of all titles that Calvista intended to import. 74 In my opinion these matters sufficiently delineate the goods. It is not necessary for the detailed content of each film to be known before a permission may be granted. Insofar as it was submitted on behalf of the Director that a permission in the terms sought was not referable to a class of goods I disagree. In my opinion, the first, second and fourth matters I have listed in [73] above, at least, would constitute a class of goods. "Class of goods" is not a term of art or a defined expression. 75 I also note that it was common ground that Calvista proposed to obtain permission to import only a master copy or time-code copy of each title for the purpose of editing and submission to the Classification Board for classification. In my opinion that circumstance removes any basis for the proposition that what was proposed was a blanket permission so as to prevent any consideration of the goods to be imported. 76 The Director did not seek to support the reasoning of the Tribunal at [42] that even though there is no express limit on the number or the kinds of objectionable goods that may be permitted to be imported under reg 4A, the use of the definite article suggested that specificity is required in respect of "the goods" in each case. In my opinion the use of the definite article in reg 4A(2) does no more than refer back to the opening part of reg 4A(2), that is, "goods to which this regulation applies". 77 I also discern in the Tribunal's reasons the idea that the permission sought by Calvista would not be able to be enforced or administered: see for example [45] of the Tribunal's reasons. However I see no basis for saying that the permission sought is unenforceable. If the relevant official wanted to compare, on importation, the goods to the permission to establish whether the goods were within the permission or not then that could be done. If it turned out that the goods were not sufficiently objectionable to be within the permission, as the Tribunal posited at [49] of its reasons, that does not go to the power to issue a permission in the terms sought by Calvista. If goods being imported are not prohibited goods that can be decided by the relevant official at the point of importation. 78 Calvista also criticised the Tribunal's reasons at [50], which I have set out above. It was submitted that it was enough that the description in the permission told the Customs official what it was that was the subject of the permission, and if the official was satisfied that the goods fell within the permission that was sufficient. 79 What the Tribunal said at [50] was that, on the assumption that a permission was permitted to be framed by reference to a class of goods, determining whether the particular goods that would be imported conformed to the class description and may be permitted to be imported could not properly be decided in the abstract, without reference to the particular goods and the terms of Calvista's proposal made no provision for that to occur. This was combined with the idea earlier in [50] that unless Calvista made a properly formed concession that each film was "objectionable" for the purposes of the Regulations and that the film conformed to the particular class of goods it sought permission to import, it was difficult to see how the official decision-maker could exercise judgment in relation to those threshold questions. 80 In my opinion, this approach conflates impermissibly the terms of the reg 4A(1A)(a) with the terms of the National Classification Code (the Code) made under s 6 of the Classification (Publications, Films and Computer Games) Act 1995 (Cth) which the Tribunal set out at [7], particularly the word "imported" at the end of reg 4A(1A)(a) with the word "classified" at the end of item 1 of the classification "RC". The relevant part of the Code was in the following terms: Films 3. Films are to be classified in accordance with the following table: Item Description of film Classification 1 Films that: RC (a) depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified; … (emphasis added) 81 It is this, in my opinion, which led the Tribunal to say that the importer could only present goods for importation and the Customs official could only permit entry when the official knew as a matter of fact, having been so informed by the importer, whether or not the film was "objectionable" and that the film conformed to the permission. In my opinion the same erroneous approach informs [49] of the reasons of the Tribunal. 82 I should also add, for completeness, that in my opinion the Tribunal was correct to say at [44] that the discretion was not confined to exceptional circumstances. To the extent that the Tribunal reasoned differently in [43] in speaking of "the exceptional nature of the discretion", in my view it was incorrect. The power is one to "except" but that does not mean that the nature of the discretion is "exceptional". 83 These reasons dispose of the statutory construction questions and related grounds of appeal. In my opinion the Director had power and the Tribunal had power to grant a permission by reference to a class and had power to grant the permission sought by Calvista.

Exercise of discretion 84 It is often unconvincing for an executive decision-maker first to find that he or she does not have a particular discretionary power but then go on to consider how he or she would have exercised the power. This is because the thought processes of the decision-maker may already be set against the favourable exercise of discretion by virtue of the conclusion that the power does not exist. 85 This may have been compounded in the present case because the discretionary power is one which may be exercised on conditions but, apparently on the invitation of the parties, the Tribunal said at [27] of its reasons that the whole question of conditions was not addressed, that being left to the primary decision-maker if the Tribunal found that the discretionary power existed and was minded to exercise that power in Calvista's favour. In light of [56] of the Tribunal's reasons however I was asked by the Director to treat paragraph [27] as a misstatement and I shall do so. 86 Further, my general observations have a particular relevance in the present case because the conditions are those which the decision-maker "thinks necessary to ensure that the goods are not used otherwise than for the purpose for which he grants the permission" whereas the Tribunal proceeded on the basis that if the conditions were not met it was self-evident that there was a risk that "objectionable goods" might be released to the Australian market. In my view whether or not this is "self-evident" must depend on the particular conditions and which particular condition is not met. See Vokalek v Commonwealth (2008) 101 SASR 588; 220 FLR 198 at [39]-[40], [62] and [68]. 87 More importantly, what I have identified as an error of statutory construction appears to have informed the approach taken by the Tribunal at [83] to the exercise of the (hypothetical) discretion. There the Tribunal said: It is probable that Calvista has imported films within the terms of regulation 4A without permission, at least one of which contained revolting or abhorrent phenomena that warranted an RC classification, placing it outside the terms of the permission presently sought. It is not clear, under the terms of Calvista's proposal, how such a film would be identified prior to importation. Thus, at the first mark there are questions about Calvista's ability to comply with the threshold terms of the permission sought. (footnote omitted) 88 Calvista submitted that if there were an error of construction, then the matter should go back to the Tribunal. I accept that submission because the Tribunal's erroneous conclusion that it did not have power to grant the permission appears to have affected its approach to the exercise of the (hypothetical) discretion. 89 I turn now to consider the remaining legal errors contended for by Calvista.

Procedural fairness 90 Calvista contended that the Tribunal denied it procedural fairness in making its findings that (a) there was a risk of objectionable goods imported under the permission being released to the Australian market; (b) Calvista had clear knowledge from August 2001 that permission to import objectionable goods was required, the basis for this finding being correspondence by an entity called AXIS Australia (AXIS); (c) Calvista lacked the ability to comply with conditions which might be imposed on it under the terms of the permission; and (d) employees of Calvista had exercised a lack of judgment in relation to films previously submitted by Calvista for classification to the Classification Board. 91 As to the first point, the particular circumstances relied on by Calvista were that there was no challenge or dispute that Calvista had, in the past, destroyed material after the classification process was complete. There was direct evidence that this was Calvista's process and it was not contested. It was also submitted that the finding as to this level of risk was particularly surprising when the hearing had proceeded on the basis that persons in Australia could readily access the films that Calvista sought to import from overseas websites that stream them in an unclassified format. 92 As to the second point, clear knowledge, Calvista submitted that there was no evidence that at the time of the 2001 correspondence that AXIS was a part of Calvista or that Calvista traded as AXIS. Calvista accepted that it might be inferred that AXIS had knowledge but AXIS was part of a different company at that time. At some subsequent time AXIS appeared to have been sold or at least the trading name had been in some way conveyed to Calvista but there was no suggestion that that meant all of the records were delivered. This point was therefore principally relied on as a "no evidence" ground. 93 As to the third and fourth points, ability to comply and lack of judgment, Calvista referred to [83]-[86] of the reasons of the Tribunal. 94 As to [83], it was submitted that such a film would be outside the proposed permission, which was not a breach of the proposed permission and thus was not a matter going to the ability to meet conditions. 95 Further it was submitted that classification was evaluative and the mere fact that Calvista sometimes put forward films that were refused classification and then successfully resubmitted them showed that there could be differences of opinion. 96 As to lack of judgment, the Director accepted in her statement of facts, issues and contentions before the Tribunal that Calvista was willing to meet the conditions imposed and expressly made no contention as to its ability to meet any condition. Then Calvista advanced two witnesses who gave evidence about processes that they undertook in editing films and neither the Director nor the Tribunal questioned those editing witnesses about their evidence as to their processes or their ability to meet the standards: they were not required for cross-examination. 97 Although there was cross-examination of Mr Bassett that Calvista was intentionally pushing the envelope and not being bona fide, in oral submissions to the Tribunal Calvista contended that those submissions on the part of the Director were unfair and amounted to a denial of procedural fairness. The Director did not submit to the Tribunal that Calvista lacked the ability to edit films to meet classification standards. In so far as the allegation was put about bona fides, Calvista submitted that it should not have been put without letting the witnesses address that contention. Thus the Director put submissions in terms of Calvista not really trying whereas the Tribunal found that Calvista was not able to comply with the proposed conditions. This was in the context where the relevant proposed condition, (e), was that the applicant must ensure that the objectionable goods are modified in a bona fide attempt to comply with classification requirements and submitted for classification to the Classification Board within three months of importation. 98 The Director submitted there was no such unfairness. As to (a), the risk of objectionable goods imported under the permission being released to the Australian market, the Director said this finding was a logical corollary to the Tribunal's finding that there was a risk that Calvista might not comply with the conditions of any permission. As to (b), the Tribunal's finding that Calvista had clear knowledge from August 2001 that permission to import objectionable goods was required, the Director submitted the finding was open on the known material and was consistent with other evidence unrelated to the 2001 correspondence. As to (c) and (d), the findings that Calvista lacked the ability to comply with conditions which might be imposed on it under the terms of the permission and that the employees of Calvista had exercised a lack of judgment, the Director submitted that these findings arose from evidence which demonstrated that Calvista failed or omitted to excise content that clearly exceeded the classification standards under the X18+ category before submitting for classification films it had imported and edited, causing the films to be classified RC. 99 As to the statutory framework, there could be no doubt that the reputation generally of Calvista was a mandatory relevant consideration: reg 4A(2AA)(c). 100 Also there is no doubt that the closing submissions to the Tribunal on behalf of the Director included that there had been some disregard by Calvista of the requirements of reg 4A and that that went directly to the reputation of Calvista. It was also submitted that it was open to the Tribunal to find that Calvista had known since at least 2001 that it needed reg 4A permissions to bring the material into Australia because there was a large risk that it was objectionable. There was no point taken in the oral reply submissions about that. 101 As to (a), I have already considered an aspect of this ground at [86] above, that is, the conditions are those which the decision-maker "thinks necessary to ensure that the goods are not used otherwise than for the purpose for which he grants the permission", including, in the present case, to ensure that the objectionable goods not be released to the Australian market. 102 This was an important matter in the Tribunal's reasoning because at [92] the Tribunal said that the fact that Calvista contended that the permission would facilitate making available to consumers in Australia properly classified films was outweighed by the risk that, inadvertently or otherwise, the conditions imposed might not be complied with. 103 Although there was cross-examination on the topic of failures to edit out objectionable material before submission to the Board, it was not put to the deponents on behalf of Calvista that there might be advertent non-compliance with conditions to which a permission would be subject nor that there might be inadvertent non-compliance with those conditions. In that connection I note that if there was non-compliance with the conditions, the goods would be forfeited goods and Calvista would be guilty of an offence for which the penalty is 100 penalty units: s 50(4). 104 I do not accept the Director's submission that the risk being referred to constituted observations about the issues raised by the proceeding which were apparent from its nature and the terms and purpose of reg 4A(3). 105 In my opinion, the issue of risk which underlay the findings of the Tribunal at [89] was not put to Calvista in a manner that was procedurally fair. This is because it was affected by the issues of ability and lack of judgment which I consider below. Further, it is likely, although I do not decide this issue on this point, that the conclusion of the Tribunal on the question of its power to grant the permission sought and the reasons for that conclusion affected its reasoning in [89]. 106 As to (b), the contention at [44.1] of the Director's statement of facts issues and contentions was that it "may be inferred from the evidence that, for an unknown number of years, Calvista has been importing objectionable goods in contravention of reg 4A(2). Only since 2011, after it began to receive seizure notices from Customs, did Calvista seek to legalise its activities by applying for permission …". 107 The basis for this proposition was that Ms Fitzgerald, the relevant Assistant Secretary, said in her supplementary affidavit that AXIS had applied to import objectionable goods into Australia in July 2001 and that AXIS was at the time a division of Adultshop.com Ltd which was now Delecta Ltd, Calvista's owner, and according to her understanding now formed part of Calvista. Her understanding from the review of departmental files and other enquiries was that the application by AXIS did not progress further than an exchange of correspondence in August and September 2001. 108 This matter was dealt with in cross-examination of Mr Bassett when it was put to him that he must accept that his company was aware that it may need approvals under reg 4A to import certain films. 109 In my opinion, bearing in mind that the reputation generally of Calvista was a mandatory relevant consideration and that the issue was put to Mr Bassett, it was not procedurally unfair for the Tribunal to conclude that Calvista had clear knowledge from August 2001 that permission was required. In my view the finding does not overstep matter that was either put or was apparent from the statute or was obviously open on the known material: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592. This is also an issue, in my opinion, where it would have been appropriate, in order to establish practical injustice, for Calvista to have called evidence in this Court going to its state of knowledge in August 2001. The High Court has recently confirmed the importance of practical injustice in assessing procedural fairness: see Assistant Commissioner Condon v Pompano Pty Ltd (2013) 295 ALR 638; 87 ALJR 458 at [156]-[157] per Hayne, Crennan, Kiefel and Bell JJ, and at [188] per Gageler J. 110 As to (c) and (d), the findings of lack of ability to comply with the proposed conditions and lack of judgment, the Director's contention at [46] of the statement of facts, issues and contentions was that the Director accepted that, at present, Calvista was willing to meet the conditions proposed by it at [28] of its statement of facts, issues and contentions. The Director expressly there made no contention as to Calvista's ability to meet any condition that may ultimately be applied to it. 111 In my opinion, it was not procedurally fair in the circumstances for the Tribunal to reach adverse conclusions on ability to comply with conditions and lack of judgment in the abstract without those matters being put more directly. The mere history, in the absence of a permission, did not sufficiently bring into play ability to comply with particular proposed conditions. Lack of judgment was not sufficiently brought into play merely from a history of some past failures at the first attempt or subsequently to achieve classification. It is not an offence to fail to achieve classification and the Director did not put to me that there was any rule, of practice or otherwise, limiting subsequent applications for classification of a film. 112 Further, it is likely, although I do not decide this issue on this point, that the conclusion of the Tribunal on the question of its power to grant the permission sought and the reasons for that conclusion affected its reasoning in [83]-[89]. 113 In summary, for the reasons I have given, in my opinion the procedural fairness ground is made out. 114 I have not separately addressed the submissions that were made in reliance on Browne v Dunn (1893) 6 R 67. The applicability in the Tribunal of this rule of practice has been addressed in a number of decisions of this Court. Those decisions include Hoskins v Repatriation Commission (1991) 32 FCR 443; Marelic v Comcare (1993) 47 FCR 437; Jagelman v Commissioner of Taxation (1995) 96 ATC 4055; Haberfield v Department of Veterans Affairs (2002) 121 FCR 233; Lawrence v Centrelink (2005) 88 ALD 664; 3D Scaffolding Pty Ltd v Commissioner of Taxation (2008) 105 ALD 475; (2008) 49 AAR 100; (2008) 73 ATR 729 (Edmonds J); 3D Scaffolding Pty Ltd v Commissioner of Taxation (2009) 75 ATR 604 (Full Court); and Mautner v Minister for Immigration and Citizenship (2009) 112 ALD 518. 115 In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437; (2003) 77 ALJR 1909 the High Court said at [56]-[57] that the rule in Browne v Dunn had no application to proceedings in the Refugee Review Tribunal. The High Court noted that that Tribunal was not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case. It said that those proceedings were not adversarial but inquisitorial and the Tribunal was not in the position of a contradictor of the case being advanced by the applicant. The Tribunal member conducting the enquiry was not an adversarial cross-examiner, but an inquisitor obliged to be fair. In my view it is implicit in what the High Court there said that there are no parties to proceedings in the Refugee Review Tribunal. 116 Contrary to the apparent reasoning of Hely J in Lawrence v Centrelink (2005) 88 ALD 664, it does not automatically follow, in my opinion, from Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 that the rule has no application in proceedings in the Administrative Appeals Tribunal: see the discussion by Edmonds J in 3D Scaffolding Pty Ltd v Commissioner of Taxation at [18]ff with reference to s 33 of the Administrative Appeals Tribunal Act 1975. The Full Court in 3D Scaffolding Pty Ltd v Commissioner of Taxation assumed that the rule did apply. In Mautner v Minister for Immigration and Citizenship (2009) 112 ALD 518 at [19] Stone J said ultimately the rule is an aspect of procedural fairness. Her Honour cited with approval what Edmonds J said in 3D Scaffolding Pty Ltd v Commissioner of Taxation at [21] that the application of the rule "depends on the circumstances of the particular case", as Hill J had said in Jagelman v Commissioner of Taxation (1995) 96 ATC 4055 at 4060. 117 In Anovoy Pty Ltd v Commissioner of Taxation 2000 ATC 4445; (2000) 44 ATR 507 (appeal allowed on other grounds: Commissioner of Taxation v Anovoy Pty Ltd 2001 ATC 4197; (2001) 47 ATR 51), French J, as his Honour then was, said at [30]: Browne v Dunn recognised and offered a rule of practice applicable in civil and criminal litigation that, where it is intended to suggest that a witness is not speaking the truth on a particular point, his or her attention is directed to that fact by questions put in cross examination on the particular point. It is a rule designed to secure procedural fairness in adversarial proceedings… It is flexible in its application.… If a breach of procedural fairness is asserted outside the context of cross examination in an adversarial proceeding then want of procedural fairness can supply a ground of review without recourse to Browne v Dunn. Indeed that case itself may be seen as a particular application of procedural fairness closely related to, if not now entirely subsumed by, the familiar concept of the right to be heard. (Citations omitted.) 118 I agree. Further, in light of the origins of the rule, in my view it is apt to mislead and to give proceedings in the Tribunal an unwarranted curial gloss to refer to principles of procedural fairness as they operate in the Tribunal by reference to Browne v Dunn. In the present case, departures from the principles of procedural fairness can be addressed, and in my opinion should be addressed, without recourse to Browne v Dunn. The principles of procedural fairness, particularly in relation to tribunals, are now far more developed than they were at the time Browne v Dunn was decided.

Failure to take into account relevant considerations 119 Calvista submitted that the Tribunal was bound to take into account Calvista's ability to meet conditions that may be imposed under reg 4A(3) in relation to the goods but that the Tribunal did not consider evidence, that evidence being Calvista's proposal that, as a condition of the permission, it engage an independent auditor, at its own expense, to conduct an annual audit of Calvista's compliance with any conditions imposed on the permission. The source of this evidence is paragraph 7 of the supplementary statement of Mr Bassett which read: If Calvista is granted permission to import objectionable goods, I am willing on behalf of Calvista to engage the services of an independent auditor, as agreed with [the Director], to conduct an annual audit of Calvista's compliance with those conditions and report to [the Director]. 120 This evidence was referred to in cross-examination of Ms Fitzgerald and in submissions on behalf of Calvista at pages 50 and 60 at the transcript of the hearing before the Tribunal. 121 The Tribunal did not refer in terms to this offer of an independent auditor. 122 The Director submitted that the Tribunal was not required to take into account each potential condition put forward by Calvista. Also the Director submitted that the Tribunal referred to this proposed condition at [82] of its reasons. The Tribunal there said: Calvista says that it is willing and able to comply with conditions, such as those proposed set out in [26] above. In the course of the hearing, Calvista gave further undertakings in respect of the scope of the permission sought and conditions with which it says it could and would comply. The Director submitted that the Tribunal was not obliged to make a specific finding about this matter and the Court may infer that it was taken into account. Lastly, if there was an error by the Tribunal it was not one that could have affected the outcome, particularly in light of the agreed position of the parties that formulation of the terms of any conditions be left to a later date. 123 In response Calvista submitted that the issue of what conditions might be imposed on the permission was an issue which affected the decision as such an issue was inseparable from the exercise of the discretion and an issue which the Tribunal was bound to take into account. 124 In my opinion the Tribunal, although implicitly, did sufficiently take into account that evidence or undertaking at [82].

No evidence 125 Calvista submitted that the Tribunal made findings of fact when there was no evidence from which such a finding could be made that: (a) Calvista had clear knowledge from August 2001 that permission to import objectionable goods was required; and (b) there was a risk of release of objectionable material to the Australian market if the permission was acceded to. Calvista also submitted that these findings were not only made on the basis of no evidence but were illogical, irrational and unreasonable. 126 As to (a), the finding that Calvista had clear knowledge from August 2001 that permission to import objectionable goods was required, Calvista submitted that there was no evidence from which such a finding could be made because, even if there had been an application by AXIS for a permission (of which there was no direct evidence), there was no evidence that by reason of such an application, Calvista (a different company at the time) was aware of it (from the date specified or ever). 127 The Director submitted that there was evidence before the Tribunal that AXIS made an application in June 2001 (or at least corresponded with the then Director about a proposed application and potential conditions; it made no difference), at the time AXIS was a division of Adultshop.com Ltd (now Delecta Ltd, Calvista's owner), AXIS belongs to Calvista and is a trading name of Calvista. Critically, when Calvista's CEO, Mr Bassett, was cross-examined on the 2001 correspondence, he appeared to agree with the proposition that "from at least 2001 your company [Calvista] was aware that it may need approvals under reg 4A to import certain films". It was true, the Director submitted, that Mr Bassett denied personal knowledge of the letters, but each of his answers accepted that the correspondence ought to form part of Calvista's corporate knowledge. Further, the Director submitted, the conclusion was consistent with other evidence unrelated to the 2001 correspondence. Mr Bassett accepted that Calvista's business model involved importing objectionable goods contrary to reg 4A and that it had been importing films for the purpose of editing them to meet Australian classification requirements "going back 10/12 years". The Director also points to Calvista's counsel saying that the seizure notices issued by Customs in 2011 motivated Calvista into pursuing the course that it had taken of applying for a permission after not having had a problem for many years. 128 In reply, Calvista submitted that the Director misstated the substance and effect of Mr Bassett's evidence to support the finding that Calvista had "clear knowledge from August 2001". 129 In my opinion, this is not a "no evidence" ground in circumstances where Mr Bassett accepted that AXIS belongs to Calvista and Calvista has AXIS as a registered trading or business name. Mr Bassett did not say, in relation to AXIS, when asked in cross-examination, that there was no relationship between Calvista and AXIS in 2001 but appeared to accept that there was such a relationship. 130 I reject this limb of the "no evidence" ground. 131 As to (b), the finding that there was a risk of release of objectionable material to the Australian market if the permission was granted, Calvista submitted that such a finding was inconsistent with the uncontradicted evidence of Kingi at [15] and Vidali at [12]. In addition, Calvista submitted, in circumstances where it was accepted by the Tribunal that such objectionable material was already available to the Australian market there was a significant missing link in the Tribunal's reasoning process as to how granting of permission to Calvista could affect any risk of release or give rise to any additional risk of release. 132 In my opinion, a risk of release of objectionable material to the Australian market if the permission was granted is not to be characterised as a finding of fact. I referred to a similar issue in Comcare v Martinez (No 2) [2013] FCA 439 at [88] as follows: I would not regard a finding by the Tribunal that, for example, Ms Ward's management of Ms Martinez was not tolerable or fair as being, of itself, a finding of fact but rather an evaluative conclusion: see, in a different context, Pfizer Pty Ltd v Birkett [1999] FCA 1778 at [11]-[13] per Mathews J. In judicial review, in considering findings of fact which are said to be legally impeachable and thus go beyond the simple fact finding referred to by Brennan J in Waterford v Commonwealth (1987) 163 CLR 54 at 77, it is, in my view, impermissible to elide findings of primary facts and an evaluative conclusion or opinion formed on or from those primary facts. This is because, at least, the evaluative conclusion would in most circumstances be founded on a number of primary facts and to challenge an evaluative conclusion on the ground that the fact did not exist or there was an absence of probative material would tend towards impermissibly canvassing the merits. 133 In the present case the Tribunal said there were a number of factors leading to its conclusion about risk. It is those matters, in my opinion, which might constitute evidence for the purpose of a "no evidence" ground of judicial review. The evaluative conclusion reached by the Tribunal does not contradict the paragraphs of Ms Kingi's and Ms Vidali's affidavits. 134 I reject this limb of the "no evidence" ground.

Unreasonableness 135 Calvista submitted that the Tribunal's decision was unreasonable and beyond power because (a) it misunderstood the statutory test it was required to apply; (b) it misunderstood what the rules of natural justice required in relation to its decision or failed to accord procedural fairness in a manner which deprived Calvista of the possibility of a successful outcome; (c) it failed to have regard to the considerations set out in the Regulations with respect to whether a permission should be granted and thereby failed to take into account relevant considerations and misunderstood what it was empowered to do by the Regulations; and (d) it made findings of fact with no evidence which were illogical, irrational and unreasonable. 136 In oral submissions to the Court, Calvista submitted that, in substance, three matters were weighed against Calvista. The first matter was that there was a risk that the grant of the permission might lead to some objectionable material getting into the Australian community and this was irrational in a context where it was accepted that this material was readily available in the Australian community where it could be screened or otherwise downloaded or acquired through unclassified DVDs. The second matter was the alleged inability of Calvista to comply with the conditions and, in particular, the alleged lack of judgment in failing sufficiently to edit the films. It was put that this also showed unreasonableness particularly because it was against Calvista's commercial interests to have its films rejected. The third matter was the suggestion that Calvista may be unable to prevent films that did not even fall within the permission, from being sent for importation into Australia. In this respect [83] of the Tribunal's reasons was referred to. Calvista said this did not go to inability to comply with conditions: it was a different issue and it would be an offence to import films outside the terms of the permission. 137 As to the first matter, I do not regard this as sounding in irrationality as the Tribunal was assessing whether there was any risk from non-compliance. A background of availability of the material otherwise than through the process under consideration does not, in my opinion, make it irrational to assess risk from non-compliance with the proposed permission. As to the second matter, again it was for the Tribunal to weigh up whether or not Calvista would comply with the proposed conditions of the permission. The conclusion was not irrational even if one line of reasoning suggested that a failure to comply with one element was against Calvista's commercial interests. As to the third matter, given the conclusion the Tribunal had reached about the statutory scheme requiring detailed consideration of a film prior to importation, the Tribunal's conclusion was not irrational. 138 In my opinion this submission, in the circumstances of the present case, involves no contentions which require separate consideration. This is not a case where an inference of unreasonableness may be objectively drawn even where a particular error in reasoning cannot be identified: see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [85] per Hayne, Kiefel and Bell JJ. 139 I note that the Director accepted in submissions before the Court that if Calvista succeeded on any of its other grounds, she accepted Calvista also succeeded on the unreasonableness ground.

Conclusion 140 For these reasons the appeal is allowed, the decision of the Tribunal made on 21 February 2013 set aside and the case remitted to be heard and decided again by the Tribunal. In light of my finding on the procedural fairness question, the Tribunal should be differently constituted but I leave that decision to the President of the Tribunal. In my view it is not appropriate to make the declaration sought by Calvista in the alternative. Costs should follow the event. 141 Nothing I have said in these reasons goes to the merits of the application for permission considered by the Tribunal or to the merits of any future application for such a permission. I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.