Rev. Fr. Ogle, W. v. Strickland, J. & Ors [1987] FCA 50

Federal Court of Australia|1987-02-13|Before: Fisher J, Lockhart J, Wilcox J, Stephen J, Wilcox JJ

ADMINISTRATIVE LAW - judicial review - wyersons aggrieved - foreign film approved by Censorship Board and registered by Chief Censor ~- film alleged to be blasphemous - standing of Ministers of Religion to challenge approval and registration - applicants possessing more than "intellectual or emotional" interest -

Administrative Decisions (Judicial Peview) Act 1977

REV. FR. WALTER OGLE and REV. FR. JOHN O'NEILL Appellants

KENNETH BARTON. DAVID HAINES, GRAHAM WOOD, DEEORAH EHRLICH, WILLIAM SALTER, BRONWYN BCEKENSTEIN, WILLIAM HUME, ADRIAN CAPNELUTTI, UNA JOANNA DOWNER, ANDREE MARGARET WRIGHT, EVE MILDPEN constituting with the First Respondent the CENSCRSHIE

BOARD constituted oursuant to the CUSTOMS '"CINEMATOGRAPH FIITMS) REGULATIONS 1955

PAN AMEPICAN PPODUCTIONS PTY. LIMITED Third Respondent

FISHER, LOCKHART & WILCOX JJ. SYDNEY 13 FEERUAPY 19287

ON APETAL FROM A STNGLE TT IESE Sea ae FEDERAL COURT OF AUSTRALIA BETWEEN REV. FR. WALTER OGLE and REV. FR. JOHN O'NETLE

Appellants

and - JANET STRICKLAND at all material times Chief Censor of the CENSORSHI BOAPT

constituted pursuant co the CUSTOMS {(CINEMATOGRAPH FIEMS) REGULATIONS 1956

KENNETH BARTON, DAVID HAINES, GRAHAM WOOD, PEBORAH "EHRLICH,

WILLIAM SALTER. BRONWYN BOEKENSTEIN, AILLIAM HUME, ADRIAN CARNELUTTI, UNA JOANNA DOWNEP, ANDREF MARGARET WRIGHT, EVE MILDREN constituting with the First Pespondent the CENSOPSHIP ROARD constituted pursuant to the CUSTOMS (CINEMATOGPAP FILMS) REGULATIONS 195 6

JUDGES MAKING ORDER : FISHER, LOCKHART & WILCOX JU. WHERE MADE : SYDNEY DATE OF ORDER : 13 FEBRUARY 1987

The order of the primary judge of 4th April 13286 he

respondents seeking dismissai of the ovreceaedings be dismissed, and the matter be referred hack to the primary jucgge or a judge of this Court for the further hearing of the application.

The orders for costs py the primary judge be set aside and the first and second respondents ovoay the costs of

Settlement and entry of orders is dealt with in Order 36 of

ON APPEAL FROM A SZNCLE JUDGE OF THE FEDERAL COURT OF AUSTRALTA

JANET STRICKLAND at ail Material tames Chief Censor of the CENSORSHIP BOARD

constituted pursuant to the CUSTOMS 'CINEMATOGRAPHY FILMS) REGULATIONS 1956

KENNETH BARTON, DAVID HAINES, GRAHAM WOOD, DEBORAH EHRLICH, WILLIAM SALTER, BRONWYN BOEKENSTEIN, WILLIAM HUME, ADRIAN CARNELUTTII, UNA JOANNA DQWNER, ANDREE MARGAPET WRIGHT. EVE MILDREN constituting with the First Fespondent the CENSORSHIP POARD ecnstituted pursuant to the CUSTOMS (CINEMATOGRAPH FIEMS) REGULATIONS 1956

Fisher J.: I have had the advantage of reading in draft form the reasons for judgment of Lockhart J. I agree with his conclusions the orders he proposes and generally with his reasons. Tf have

alse read with great interest the reasons for judament cof

It was conceded before us that if the appellants in this

matter had a "special interest" an the sense in which those words

"aggrieved" for the ecurpose of the Administrative Dec

In arriving at my conclusion, namely that this appeal

should be allowed, I adopt the armeroath of Stephen J. in Onus v

Alcoa of Australia Limzted (1922) 149 C.L.R. 27. At page 42 cf that case Stephen J., when speaking of the question whether the appellants had a sufficient "special interest" tc azive them

"As the law new stands 1t seems rather to involve in each case a curi1al assessment of the importance of the concern which a plaintiff has with oarticular subject matter and of the closeness of that plaintiff's relationship to that subject matter.

... Courts necessarily reflect community values and beliefs, according greater weight tc, and perceiving a closer proximity toa plaintiff ain the case of some subject matters than others. The outcome of doing = so, however rationalized, will, when no tangible proprietary or possessory rights are in question, tend to be determinative of whether or not such a special interest exists as will be (sic) found standing to sue."

In these circumstances it 15 not surprising that minds may differ when determining whether a "special interest" has been established. The curial assessment which Stephen J. perceived as involved requires value judgments to be made, in particular when assessing matters of weight anc proximity. Thzs Court is required to make for itself such assessments and ludaments, even

ip circumstances such as the present when, as I see 1t, the trial

judge correctly identified the celevant princivles of law. As

"The cule is obviously a flexible one since, aS was eointed out in that case, (the Australian 'Tonservati Foundation case) the question what 1s a sufficie anterest will vary according to the nature cf t subject matter of the litigation."

The respondents agreed when before the trial judge that each of the appellants was a minister of religion charged with the duty of teaching and fostering Christian beliefs according to

"Notwithstanding their special position as ministers of religion, IT do not think that they stand in any different position from countless cther members of the community who, with varying degrees of commitment, profess the Christian faith. That circumstance, coupled with the absence of any threat to any

proprietary or possessory interest, persuades me that there 15 no conclusion open other than that standing to sue should be denied."

With respect to the contrary view cf the trial judge I

am of opinion that the appellants do positien from other member cof the community who rrofess the Christian faith. I attach significance to the fact That 32 priests and teachers their interest and their activities are not limited merely to professing the Christian faith. Their

arterest in my opinion extends beyond that of other menrers af

descrtbed as oniy "intellectual or emotional", which words were

professicnai calling of the appellants being mere than an

Pr a or fi an t Of a rt c i be oO La itt A o rt H. Q a] p Hn na n a ba a bal uy

@5 greater weight ts he Given to their interest in the subject matter of the film and in the question whether it 1s blasphemous. They have, in the words of Stephen J., a "closer proximity" to this subject matter than other members of the community. This interest in my view sheuld

I am confirmed in this ovinion for the following further, although not necessarily relevant, reason. If these appellants nave not sufficient standing to have reviewed the decision of the respondents the only persons who could have such

standing, apact from the Attorney General wouid, be these with a

commercial interest in the decision. Such an interest could

the & preceding pages are a true copy of the Reasons for Judgment cf Mr Justice

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

Material times Chief Censor of the CENSORSHIP BOARD constituted pursuant to the CUSTOMS (CINEMATOGRAPH FILMS)

GRAHAM WOOD, DEBORAH EHRLICH, WILLIAM SALTER, BRONWYN

DOWNER, ANDREE MARGARET WRIGHT, EVE MILDERN constituting with

CENSORSHIP BOARD constituted pursuant to the CUSTOMS (CINEMATOGRAPH FILMS)

The Reverend Father Walter Ogle is a priest of the Anglican Church in Australia and The Reverend Father John O'Neill 1s a priest of the Roman Catholic Church in Australia. They claim that a film titled "Je Vous Salue Maria" ("Hail Mary") is blasphemous and they seek to challenge decisions of the Censorship Board and of one of its members relating to the importation of the film into Australia. Underlying the making of the decisions is a finding by the Censorship

The two priests ("the appellants") instituted these proceedings for review of the decisions claiming that they should be set aside by the Court on various grounds available under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). The learned trial Judge held that they had no standing

to sue and dismissed the application. They appeal from that decision.

The appeal raises an important question concerning the standing of persons to bring proceedings in this Court under the

Judicial Review Act. Sub-section 5(1) of that Act provides that "a

person who is aggrieved" by a decision to which the Act applies may apply to this Court for a review of the decision. It 1s said against the appellants that each of them lacks standing to bring the case

because they have no interest beyond that of ordinary members of the

public. The appellants claim that, as they are ministers of religion, 1t 1s their vocation to teach and foster Christian beliefs and that it 1S part of their duties to reject or repel blasphemy which attacks the very foundation of their faith. They say that their special position as ministers of religion places them in a position different from that of other members of the community and entitles them to sue. That is the question for decision. It falls to be considered in the background of administrative law where the expression "person aggrieved" and other like expressions are used in statutes to define a person's standing to sue. Some analysis of the development of the law

In cases involving the determination of private rights questions of standing rarely arise. It 1S in civil cases with a public element that a person's standing to sue arises. Proceedings for review of decisions of inferior courts and public officials are proceedings which involve the public. interest. They include proceedings for the issue of the prerogative writs of prohibition, certiorari and mandamus (to mention the principal ones) = and

applications under the Judicial Review Act for the review of decisions

of an administrative character made under Commonwealth enactments.

The standing of persons to bring public interest proceedings 1s defined by various formulae in different statutes. It is useful to examine some of them. Expressions commonly used in statutes to Getermine standing to sue are "person aggrieved", "person interested"

and "person with affected interest". The particular expression with

which this case 1s concerned 1s a "person who 1s aggrieved". It has long been recognised that these formulae for determining standing to sue should not be given a rigid or inflexible meaning. They are flexible words which derive their meaning and take their colour from the context in which they appear and the nature of the particular statute concerned. As Lord Hewart C.J. said in Seven Oaks Urban

Council v. Twynam (1929) 2 K.B. 440 at pp. 443 and 444:

"But as has been said again and again there is often little utility ain seeking to interpret particular expressions in one statute by reference to decisions given upon Similar expressions in different statutes which have been enacted alio intuitu. The problem with which we are concerned 1S not, what is the meaning of the expression 'aggrieved' in any one of a dozen other statutes, but what is 1ts meaning in this part of this statute? It 1s a little important to see what this part of this statute 1s dealing with."

One must therefore approach an examination of the meaning of an expression such as "person aggrieved" with those observations of Lord Hewart C.J. in mind. An examination of the authorities also shows that, as administrative law has evolved, the Courts have shown a discernible, though not always consistent, tendency to construe these expressions liberally. The words "person aggrieved" received a restrictive interpretation over a century ago in Ex parte Sidebotham [1880] 14 Ch.D. 458 where James L.J. said at p. 465, in relation to s.

71 of the Bankruptcy Act 1869 (Eng.) which empowered courts to make

"But the words 'person aggrieved' do not really mean a man who 1s disappointed of a benefit which he might have received 1f some other order had been made. A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something."

This interpretation was generally accepted for many years, though Lord Esher said, as early as 1887, in Ex Parte Official

Receiver In Re Reed, Bowen & Co. (1887) 19 Q.B.D. 174 at p. 178 that

the definition of James L.J. was not an exhaustive definition.

A wider interpretation was placed upon the words "any person

aggrieved" by the Privy Council in Attorney-General of the Gambia v.

Pierre Sarr N'Jie [1961] A.C. 617 where a question arose as to the

meaning of that expression in the context of the West African (Appeal

to Privy Council) Order In Council 1949, s. 31 of which provided:

"Nothing in this Order contained shall be deemed to interfere with the right of His Majesty upon the humble petition of any person aggrieved by any judgment of the Court to admit his appeal therefrom upon such conditions as His Majesty in Council shall think f1t to impose."

Their Lordships rejected the submission that a person aggrieved must be a person who has suffered a legal grievance in the

sense attributed to 1t by James L.J. in Ex parte Sidebotham (supra).

Lord Denning, who delivered the judgment of the Judicial Committee,

said at p. 634 (a passage which has been cited with approval and

"But the definition of James L.J. 18 not to be regarded as exhaustive. Lord Esher M.R. pointed that out in Ex parte Official Receiver, In re Reed,

Bowen & Co. (1887) 19 Q.B.D. 174, 178. The words 'person aggrieved' are of wide import and should

not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who 1S interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests."

Another expression "person who feels aggrieved" also appears in statutes, but my research shows that it tends to be treated interchangeably with "person aggrieved": see for example National

Trust of Australia (Vic) v. T. & G. Mutual Society [1976] V.R. 592 and

Dalton v. Deputy Commissioner of Taxation 60 A.L.R. 783 at p. 797.

The expression "person interested" also appears in various statutory contexts: see the Designs Act 1906 s. 28; Lands Acquisition

Act 1955: ss. 13 and 39; Conciliation and Arbitration Act 1904: ss.

62, 108 and 143; Bankruptcy Act 1966: ss. 35, 75, 167, 108, 300, 303

and 307 and The Environment Protection (Sea) Dumping Act 1981: s. 33.

The words "person with affected interest" are used in some statutes as the test for determining standing to apply for applications for injunctions to restrain breaches of certain provisions of the Companies Act 1981 (Cth) (s. 574) and the Securities Industry Act 1980 (Cth) (ss. 42 and 149). Aliso, a person has a right of appeal under the Administrative Appeals Tribunal Act 1975 to the

Administrative Appeals Tribunal for the administrative review of a

decision 1f his "interests are affected" by the decision:

It 1S important not to shackle the interpretation of these

expressions by importing concepts from other statutes in which they

appear involving different subject matter and objects, especially when

the expressions have received judicial interpretation not intended to have general application or, indeed, application beyond the particular

words in the particular context of the particular statute concerned.

Before turning to the Judicial Review Act itself I shall

discuss two decisions of the High Court upon which considerable reliance was placed by the parties in argument before us. The first

of these 1s Australian Conservation Foundation Incorporated v. The

Commonwealth of Australia (1980) 146 C.L.R. 493 where the Australian Conservation Foundation challenged the validity of certain decisions relating to the Banking Foreign Exchange Regulations and to certain

administrative procedures under the Environment Protection (Impact of

Proposals) Act 1974 (Cth) in the context of a proposal by a company to

establish and operate a tourist resort in central Queensland. Aickin J., who heard the case at first instance, held at p. 508 that the Foundation had no standing to sue because it was not "adversely affected in some way to an extent greater than the public generally".

On appeal to the Full Bench of the High Court, Gibbs J. said at pp. 530-531:

"I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person 1s not interested within the meaning of the rule, unless he 1s likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fauils. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus stand. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it."

His Honour held that the Foundation had no special interest in the preservation of the relevant environment in central Queensland and none in the exchange control transactions. Stephen J. reached the same conclusion as Gibbs J. for substantially the same reasons. Huis

"An individual does not suffer such damage as gives rise to standing to sue merely because he voices a particular concern and regards the actions of another as injurious to the object of that concern. That 1t 1s a body corporate rather than an individual which seeks to do so cannot of itself alter that position; the fact that that body corporate has as 1ts main object the voicing, and

encouragement in the community, of just such a concern no doubt ensures that what it does to give

effect to such an object will not be ultra vires; it will not otherwise improve its position." His Honour regarded the Foundation as in substance basing its right to

sue on a concern regarding threatened detriment to the environment and

Mason J. took a similar view to Gibbs J. and said at p. 548:

"In this difficult field there is one proposition which may be stated with certainty. It is that a mere belief or concern, however genuine, does not un itself constitute a sufficient locus standi in a case of the kind now under consideration."

Murphy J. dissented and held that the Foundation had standing

The later decision of the High Court 1s Onus v. Alcoa of

Australia Limited (1982) 149 C.L.R. 27. Section 21 of the

Archaeological and Aboriginal Relics Preservation Act 1972 (Vic)

provided that a person who wilfully or negligently defaced or damaged or otherwise interfered with a relic or carried out an act likely to endanger a relic should be guilty of an offence. Section 2 defined the terms "archaeological relic" and "relic" to include a relic pertaining to the past occupation by the Aboriginal people of any part of Australia whether or not the relic existed prior to the occupation of that part of Australia by people of European descent and specifically included any Aboriginal deposit, carving, drawings, skeletal remains and anything belonging to the total body of material relating to that past Aboriginal occupation of Australia. Two persons who claimed to be descendants and members of the Gournditch-jmara Aboriginal people and custodians of the relics of those people according to their laws and customs brought proceedings in the Supreme Court of Victoria for the purpose of preventing Alcoa of Australia

Limited from carrying out on land which it occupied works which, it

was claimed, would interfere with Aboriginal relics on that land and

in particular would be a breach of s. 21 of the Archaeological and

Aboriginal Relics Preservation Act 1972. The Supreme Court of Victoria

held that the two persons had no standing to sue. On appeal to the High Court Gibbs C.J. said that, although the two private citizens who brought the action could not show that any right of their own had been infringed, nevertheless they had an interest in the subject matter of the action greater than that of other members of the public and greater than that of other persons of Aboriginal descent who are not members of the Gournditch-jmara people. The appellants and other members of the Gournditch-jmara people would be more particularly affected than other members of the Australian community by the destruction of the relics. The appellants claimed that, in common with other members of the Gournditch-jmara people, they were the custodians of the relics according to the laws and customs of those people, that the relics were of cultural and spiritual importance to them and that they used the relics to teach their children the culture of their people. His Honour said that the case was not one in which a plaintiff sues in an attempt to give effect to his beliefs or opinions on a matter which does not affect him personally except insofar as he holds beliefs or opinions about it. Stephen J. reached the same conclusion and the essence of his Honour's reasoning 1s to be found at

"As the law now stands it seems rather to involve in each case a curi1al assessment of the importance of the concern which ae plaintiff has with particular subject matter and of the closeness of that plaintiff's relationship to that subject matter, The present appellants are members of a

small community of aboriginal people very long associated with the Portland area; the endangered relics are relics of their ancestors' occupation of that area and possess for their community great cultural and spiritual significance. While Europeans may have cultural difficulty in fully comprehending that significance, the importance of the relics to the appellants and their intimate relationship to the relics readily finds curial acceptance, It 1s to be distinguished, I think, and will be perceived by courts as different in

degree, both in terms of weight and, in particular, in terms of proximity, from that concern which a

body of conservationists, however sincere, feels for the environment and its protection. Courts necessarily reflect community values and beliefs, according greater weight to, and perceiving a closer proximity to a plaintiff in the case of, some subject matters than others. The outcome of doing so, however rationalised, will, when no tangible proprietary or possessory rights are in question, tend to be determinative of whether or not such a special interest exists as will be found standing to sue."

Mason J. said at p. 43 that the relics had great cultural and spiritual significance for the Gournditch-jmara community, the members of which are the guardians of the relics according to their laws and customs, and they use the relics. His Honour agreed with Gibbs C.J. that the appellants had a special interest in the preservation of the relics sufficient to support locus stand1. Murphy, Aickin, Wilson and

Brennan JJ. reached the same conclusion in separate reasons for

"R plaintiff must show that he has been specially affected, that 1S, 1n comparison with the public at large he has been affected to a substantially greater degree or in a significantly different Manner. It 1S not necessary to show that the

plaintiff 1s uniquely affected; there may be some others whose interests may be affected in like manner."

It was argued before us on behalf of the appellants that, just as the relics in the Onus Case (supra) had great cultural and spiritual significance to the Gournditch-jmara people, so here the repelling of blasphemy to maintain the sanctity of the Christian faith has great spiritual significance to the appellants as ministers of

The Judicial Review Act is an important part of Commonwealth

legislation in the field of administrative law to scrutinise administrative decisions and actions of Commonwealth Ministers, officials and statutory bodies. It confers jurisdiction on this Court to hear and determine applications by "a person who 1s aggrieved by a decision to which this Act applies", 1.e. decisions of an administrative character made under Commonwealth enactments. Sub-section 3(4) defines the expression by an inclusive definition

(a) a reference to a person aggrieved by a decision includes a reference -

(1) to a person whose interests are adversely affected by the decision; or

(21) an the case of a decision by way of the making of a report or recommendation - to a person whose interests would be adversely affected 1f a decision were, or were not, made in accordance with the report or recommendation; and

(b) a reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference to a person whose interests are or would be adversely affected by the conduct or failure."

The meaning of the expression "a person who is aggrieved" was

and Consumer Affairs (1981) 36 A.L.R. 64. His Honour said at p.

"The words 'a person who 1s aggrieved' should not, in my view, be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal interest at stake in the making of the decision, It 1s unnecessary and undesirable to discuss the full import of the phrase. I am satisfied from the broad nature of the discretions which are subject to review and from the fact that the procedures are clearly intended in part to be a substitution for the more complex prerogative writ procedures that a narrow meaning was not intended. This does not mean that any member of the public can seek an order of review. I am satisfied, however, that 1t at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public. In many cases that grievance will be shown because the decision directly affects his or her existing or future legal rights. In some cases, however, the affect may be less direct. It may affect him or her in the conduct of a business or may, as I think is the case here, affect his or her rights against third parties (see F. Robinson v. Western Australian

This approach of Ellicott J. has been adopted in subsequent

Mills Limited v. Bannerman (1981) 38 A.L.R. 533 at pp. 539,

The importance of not giving the expression "a person who 1s

aggrieved" a narrow meaning is readily perceived when regard 1s had to

the wide range of decisions under Commonwealth enactments which are

susceptible to review under the Judicial Review Act and to the

continually expanding field of Commonwealth law. As statutes, regulations, ordinances and other laws of the Commonwealth are continually emerging from the draftsman's pen, the definition of the words "a person who 1S aggrieved" must be as applicable for future, as

There are sound reasons why the expression should not be extended to include a member of the public who does not have a grievance which he or she will suffer beyond that which he or she has as an ordinary member of the public. Otherwise, anyone at all could apply for review of a decision under a Commonwealth enactment and for

a statement under s. 13 of the Judicial Review Act of the findings on

Material questions of fact and the reasons for the decision in question even though the decision may not affect the person beyond being merely emotionally or intellectually concerned or interested in the decision. The right to request a s. 13 statement 1s conferred by that section upon "any person who 1s aggrieved by the decision" (sub-s. 13(1) and sub-s. 3(4)). Burdens on Government departments and Instrumentalities would be imposed at increased cost to the public purse if an applicant for a statement of reasons under s. 13 did not have some interest in the decision in the sense to which Ellicott J. referred in Tooheys' Case (supra), especially as the person who made the decision 1s obliged to provide the statement to any person

entitled to 1t without cost to the person seeking 1t.

I do not say that, 1f anybody at all has standing to bring

applications under the Judicial Review Act, the "floodgates" will open

and the Court will be swamped with cases. This argument has been

advanced on numerous occasions and rejected: see, for example, Dyson

v. Attorney-General [1911] 1 K.B. 410 per Farwell L.J. at 423; The Colonial Sugar Refining Co. Limited v. The Attorney-General for the Commonwealth (1912) 15 C.L.R. 182, per Griffith C.J. at pp. 189-191 and Barton J. at pp. 202-4; and Phelps v. Western Mining Corporation Limited (1978) 33 F.L.R. 327 per Deane J. at pp. 333-334. It is an argument without substance and reality. There are real constraints which would discourage people from instituting proceedings whose only interest 1S strong views or feelings. The burden of costs, including the risk of orders for costs being made against them 1f they lose, and the power of courts to control their own proceedings, including power to dismiss proceedings or strike out pleadings 1f they are vexatious,

frivolous or an abuse of process are examples of some constraints.

If the Judicial Review Act had provided that "any person" had

standing to seek review of administrative decisions under Commonwealth

enactments it may be that any member of the public could apply. Parliament conferred the right to seek an injunction under s. 80 of

the Trade Practices Act 1974 on the Attorney-General, the Trade

Practices Commission and "any other person". It is now settled that those words confer the right to sue on any member of the public, whether a consumer or not: World Series Cricket Pty. Limited v.

Parish (1977) 16 A.L.R. 181; Phelps v. Western Mining Corporation

Limited (supra); Glorie v. W.A. Chip & Pulp Co. Pty. Limited (1981) 1

T.P.R. 84. Parliament has used words of limitation, however, in sub-s. 5(1) of the Judicial Review Act; the words "a person who 1s

This case 1s concerned with three decisions which were made by members of the Censorship Board ("the respondents"); constituted Pursuant to the Customs (Cinematograph Films) Regulations. The regulations were made under the Customs Act 1901. The three decisions were to grant a licence to import the film, to approve its registration and to register it pursuant to the regulations. Until a film has been registered in accordance with Part II of the regulations 1t shall not be delivered from the control of Customs. The Censorship Board is constituted by regulation 5 and it consists of the Chief Censor, the Deputy Chief Censor and other members (reg. 5(2)). Part II relates to the importation of films and advertising matter. The importation of a film 1s prohibited unless a licence to import it has been granted under the regulations by the Chief Censor or an officer on his or her behalf (reg. 9(1)). The grant of a licence under the regulations 1S subject to the conditions and requirements specified in the regulations and to such conditions and requirements as are specified in the licence (reg. 10). A f1lm shall not be delivered from the control of Customs until it has been registered in accordance with Part II (reg. 11). Regulation 13, so far as 18 presently relevant, provides that a film shall not be registered if, in the

opinion of the Board, the film 1s blasphemous, indecent or obscene.

The registration of a film may be granted either without conditions or subject to such conditions as the Censorship Board thinks f1t and subject to the importer giving security to the satisfaction of the Collector of Customs for the observance of the conditions subject to which the registration has been granted and certain other conditions specified in regulation 19(b). Among those lastmentioned conditions 1s a condition that the film shall not, unless the consent in writing of the Censorship Board has first been obtained, be exhibited in Australia by the importer or any other person in a form other than the form in which the film has been

Part IV of the regulations provides for the review of decisions of the Censorship Board by a body called the Cinematograph Films Board of Review. "A person aggrieved" by a decision of the Censorship Board on a matter arising under the regulations may apply to the Board of Review to review the decision of the Censorship Board (reg. 39(1)). On the hearing of the application for review the Board of Review may confirm the decision of the Censorship Board or direct 1t to grant the permission sought by the applicant either with or

Father Ogle and Father O'Neill allege that the film is blasphemous and that the respondents have, by the decisions referred to, allowed the third respondent, Pan American Productions Pty. Limited (the importer of the film), to import it. They claim that the

decisions of the Censorship Board should be set aside by the Court on

various grounds including the grounds that the decisions were not authorised by the regulations, that relevant considerations were left

out of consideration by the Board and that no person acting reasonably

could have reached the decision reached by the Board if its members

had properly directed themselves as to the applicable law.

The respondents filed a notice of motion to dismiss the proceedings on the ground that the appellants lack standing in that neither of them is "a person who 1s aggrieved" by the decisions within the meaning of sub-s. 5(1) of the Judicial Review Act. The learned primary Judge determined the question of standing as a preliminary

point rather than at the final hearing and held that the appellants

It was agreed by counsel for the respondents before his

Honour, for the purpose only of dealing with the notice of motion,

each of the appellants 1s a minister of religion charged with the duty of teaching and fostering Christian beliefs according to the Scriptures;

the respondents have by their decisions allowed and permitted

the third respondent to import the film into Australia and to

The primary Judge concluded that the appellants did not have

standing to pursue the application. His Honour said:

"Notwithstanding their special position as ministers of religion, I do not think that they stand in any different position from countless

other members of the community who, with varying degrees of commitment, profess the Christian faith.

That circumstance, coupled with the absence of any threat to any proprietary or possessory interest, persuades me that there is no conclusion open other than that standing to sue should be denied. ...

Many people in the community have a concern about the screening of a blasphemous film. But that

Blasphemy 1S an indictable misdemeanour at common law: R. v. Ramsay 15 Cox, C.C. 231. See also the Blasphemy Act 9 and 10 Wm, ITI Ch. 32. The essence of the crime of blasphemy 1s to publish words concerning the Christian religion which are so scurrilous" and offensive as to pass the limits of decent controversy and to be

calculated to outrage the feelings of any sympathiser with or believer

in Christianity: R. v. Gott (1922) 16 Cr.App.R. 87. A temperate and

respectful denial of the existence of God is not an offence against the law which does not render criminal the mere propagation of

At a glance

Court

Decision date

Before

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Judgment (332 paragraphs)

Legislation Cited (4)

Cases Cited (8)

Cited By (1)