The criteria for refusal of classification applicable to publications under the Code also apply to films. In the case of computer games there is an additional criterion that the game is "unsuitable for a minor to see or play".
THE GROUNDS OF APPEAL
The grounds of appeal were lengthy and elaborate. They reduced to broad propositions that his Honour misconstrued the Code and particularly the term "instruct", and erred in holding that it was open to the Board to characterise the article as falling within the Code. The construction of the Code and the characterisation of the article should have had regard to the implied constitutional freedom of political discussion, the common law recognition of freedom of speech and expression and the provisions of the International Covenant on Civil and Political Rights.
The proper construction of the Code, it was said, would require that before an article could be said to "instruct" in matters of crime it must be shown that the intent and likely effect of the publication is to cause the commission of the crime.
In addition, it was said that his Honour had erred in not holding that the Board had failed to take into account relevant considerations and had taken into account an irrelevant consideration. As to those matters I agree, for the reasons stated by Sundberg J, that no error on the part of the Board or his Honour was made out.
FREEDOM OF EXPRESSION
To assert freedom of expression under the law is to make a statement exhaustive of a wide range of possibilities including comprehensive censorship. A person may say and write what he pleases except in so far as he may not. This is a special case of the general proposition of the common law that ".... everybody is free to do anything, subject only to the provisions of the law"- Attorney General v Guardian Newspapers Ltd [1990] AC 109 at 283 (Lord Goff); Lange v Australian Broadcasting Corporation (1997) 145 ALR 96 at 110. Beyond its trivialising logical formulation the assertion conveys a recognition of two important values and the tension between them. They are individual liberty and the rule of law in an organised society. The tension was made explicit by Blackstone who wrote that "the liberty of the press is indeed essential to the nature of a free state" but did not extend that liberty to "freedom from censure for criminal matter when published". The rationale for that limitation, confined to post-publication sanctions, was stated thus:
"...to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty." Blackstone Commentaries Vol 4, 151-152.
The value currently given by the common law to freedom of expression is high. Freedom of expression, particularly the freedom to criticise public bodies, is regarded by the Courts as one of the most important freedoms - Halsburys Laws of England 4th Edition Vol 8(2) para 107. This is no doubt attributable in part to the influence of the body of International Conventions which have accorded the freedom explicit recognition and protection and the designation "fundamental". That designation may be traced from Articles 1 and 55 of the Charter of the United Nations to the Universal Declaration of Human Rights and the International Convention on Civil and Political Rights. It has legislative recognition in Commonwealth statutes - Human Rights and Equal Opportunity Commission Act 1986 (Cth), and the Racial Discrimination Act 1975 (Cth). Courts applying common law principles may be expected to proceed on an assumption of freedom of expression and look to the law to discover exceptions to it - Attorney General v Observer Ltd [1990] AC 109 at 203. So in England local authorities and other organs of government cannot sue for libel at common law. There is no public interest favouring such a right and it is contrary to the public interest "because to admit such action would place an undesirable fetter on freedom of speech"- Derbyshire County Council v Times Newspapers [1993] AC 534 at 549. The New South Wales Court of Appeal followed the House of Lords in this respect - Ballina Shire Council v Ringland (1994) 33 NSWLR 680.
The value accorded to freedom of expression will support a conservative approach to the construction of statutes which would impair or abrogate it. This is no more than a particular application of the general point made very early in the life of the High Court in Potter v Minahan (1908) 7 CLR 277 at 304, affirmed in Bropho v Western Australia (1990) 171 CLR 1 at 18 and recently restated in Coco v R (1994) 179 CLR 427 at 437:
"The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights."
Even before the sequence of cases dealing with the implied freedom of communication under the Commonwealth Constitution the "extraordinary intrusion" of a statute into freedom of expression provided a basis for concluding that it was "not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power" - Davis v The Commonwealth (1988) 166 CLR 79 at 100 and 117.
The common law does not provide the support for freedom of expression that would accord it the status of a "right". In Australia "at common law there is no right to free discussion of government. Freedoms or immunities recognised by the common law are, generally speaking, liable to impairment or abrogation by legislation" - Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 48 (Brennan J). At best it can be said that, absent constitutional implication, the common law and conservative rules of construction provide a zone of partial protection. The overarching principle remains in effect that "where Liberty ends the Law begins and where the Law ends Liberty begins" - Kocourek, "The Alphabet of Legal Relations" in Readings in Jurisprudence ed Jerome Hall (Indianapolis 1938) 509 at 510.
There is a number of international instruments which contain explicit provision for freedom of expression. The Universal Declaration of Human Rights made on 10 December 1948 provides in Article 19:
"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."
The Declaration accepts such limitations on the general rights declared by it as are determined by law "solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society". (Article 29) Moreover nothing in the Declaration is to be interpreted as implying "for any state, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein". (Article 30) Relevantly, one of the other rights set out in the Declaration is the right "to own property alone as well as in association with others" coupled with the proposition that "no one shall be arbitrarily deprived of his property". (Article 17)
In Article 19 of the International Covenant on Civil and Political Rights (ICCPR), ratified by Australia in 1980, both the extent and limits of freedom of expression are acknowledged:
"19(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
(3) The exercise of the rights provided for in paragraph (2) of this Article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) for respect of the rights or reputations of others;
(b) for the protection of national security or of public order (ordre public), or of public health or morals."
Article 10 of the European Convention on Human Rights provides for "the right for freedom of expression" but subjects it to such legal qualifications as are necessary in a democratic society for, inter alia, the prevention of disorder or crime. It is nevertheless in terms similar to Article 19 and both are consistent with the common law - Ballina Shire Council v Ringland (supra) at 688; Derbyshire County Council v Times Newspapers (supra) at 550. A similar provision is found in Article 13 of the American Convention on Human Rights 1969.
International Conventions to which Australia is a party do not form part of its domestic law unless and until given effect by statute. They can however supply content to a rule of construction that statutes are to be interpreted and applied, as far as their language permits, so as not to be inconsistent with the comity of nations or with the established rules of international law - Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309 at 363. As Pearce and Geddes state in the 4th Edition of Statutory Interpretation in Australia at 137:
"The courts generally endeavour to give effect to this proposition while conceding that it is possible for the domestic law to differ from international law."
See Zachariassen v The Commonwealth (1917) 24 CLR 166 at 181; Polites v The Commonwealth (1945) 70 CLR 60 at 68-9, 77 and 80-1, Minister for Foreign Affairs v Magno (1992) 37 FCR 298 at 304-305; Garland v British Rail Engineering [1983] 2 AC 751 at 771; R v Secretary of State for the Home Department Ex parte Brind [1991] 1 AC 696 at 747-748. International law, as expressed in such conventions, may also inform the development of the common law; Dietrich v R (1992) 177 CLR 292 at 306; Mabo v Queensland(No. 2) (1992) 175 CLR 1 at 42.
The freedom guaranteed by Article 10 of the European Convention and, by extension, Article 19 of the ICCPR applies not only to information or ideas that are favourably received or regarded as inoffensive but, subject to para 2, "those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broad mindedness without which there is no "democratic society"" - Handyside Case, European Court of Human Rights 1976 Ser.A. No. 24 1 EHRR 737.
But a democratic society is a society governed by the rule of law. Thus laws which impose accessorial liability for counselling or procuring the commission of criminal offences against property or person may penalise speech but are necessary restrictions of the kind contemplated by Article 19(3). They are, in the language of the European Convention, necessary for the prevention of crime. Such provisions are common in Australian criminal statutes. Prior restraint is more troublesome as Blackstone recognised. That is not to say that it will always be incompatible with freedom of expression in the qualified sense necessary in a society governed by the rule of law.
Qualifications apply also to the implied constitutional freedom of communication with respect to public affairs and political discussion. In Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106, Mason CJ said at 142:
"In most jurisdictions in which there is a guarantee of freedom of communication, speech or expression, it has been recognized that the freedom is but one element, though an essential element, in the constitution of "an ordered society" or a "society organized under and controlled by law". Hence, the concept of freedom of communication is not an absolute. The guarantee does not postulate that the freedom must always and necessarily prevail over competing interests of the public."
The freedom of communication in relation to public affairs and political discussion protected by constitutional implication does not confer private rights. It confines legislative power - Lange. It will not, however, invalidate a law enacted to satisfy some legitimate end if that law is compatible with the maintenance of representative and responsible government under the Constitution and is reasonably appropriate and adapted to achieving the legitimate end - Lange at 108.
Heerey J in his reasons for judgment, which I have had the advantage of reading, draws an important distinction between the basis and content of the constitutional implied freedom of communication in Australia and the express guarantees of freedom of speech "as such" under the First Amendment to the Constitution of the United State and Section 2 of the Canadian Charter. I respectfully agree with that distinction.
But to recognise the distinction is not to define the range of communications protected by the implied freedom. The source of the implication is the provision made by the Constitution for a system of representative democracy. The conditions necessary for the exercise of that democracy are to be protected. On that basis there is protected "the freedom of the Australian people to discuss government and political matters...." - Nationwide News at 50. The discussion of government may include "information, opinions and ideas about all aspects of the government of the Commonwealth..." - Nationwide News at 74, see also Cunliffe v The Commonwealth (1994) 182 CLR 272 at 364. Political matters are not limited to matters concerning the functioning of government. They may include broad discussion about the social and economic organisation of society as well as about its laws and proposals for their change. It is "a wide range of matters that may call for, or are relevant to, political action or decision" - Australian Capital Television at 138. In Theophanous at 124, Mason CJ, Toohey and Gaudron JJ saw the concept of political speech as extending, in the words of Barendt to "all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about".
The potential range of political discussion was indicated by Toohey J in Cunliffe at 379 where, after reviewing dicta on the point in Nationwide News and Australian Capital Television, his Honour said:
"These statements, at their lowest, assert an implied freedom on the part of the people of the Commonwealth to communicate information, opinions and ideas relating to the system of representative government. At their highest, they recognise a freedom to communicate in relation to public affairs and political matters generally."
In the recent joint judgment in Lange, the High Court retained the formulation "government and political matters" to describe the subject matter of the discussion that is within the constitutional implication. In the subsequent decision in Kruger v The Commonwealth (1997) 146 ALR 126, Toohey J at 177 restated the adoption by Mason CJ, Toohey and Gaudron JJ in Theophanous of the observations of Barendt quoted above. In so doing his Honour added:
"Nothing said in Lange diminishes the scope of the implied freedom as I have identified it."
The various cases and the terms in which they describe the implied constitutional freedom leave open the possibility of further development of the law as to what will constitute "political discussion". The adoption of the observation taken from Barendt would support a view that the category of such discussion is open.
There is much to be said for the conclusion that "The Art of Shoplifting" falls outside the scope of political discussion. But, inelegant, awkward and unconvincing as is its attempt to justify its practical message about shoplifting by reference to the evils of capitalism, it is arguable that in some aspects it would fall within a broad understanding of political discussion. That characterisation, however, will not invalidate the effective operation upon it of a law which is enacted for a legitimate end, is compatible with representative and responsible government and is reasonably appropriate and adapted to achieving that end.
Deane and Toohey JJ said in Nationwide News at 77:
"...a law prohibiting conduct that has traditionally been seen as criminal (eg conspiring to commit, or inciting or procuring the commission of, a serious crime) will readily be seen not to infringe an implication of freedom of political discussion notwithstanding that its effect may be to prohibit a class of communications regardless of whether they do or do not relate to political matters."
The law in question in this case is the National Classification Code and the supporting provisions of the Classification (Publications, Films and Computer Games) Act 1995 (Cth). It is the construction of that law paying due regard to the common law value of freedom of expression; Australia's international obligations under the ICCPR and the implied constitutional freedom that is the Court's primary task. In my opinion properly construed for the reasons that follow, the relevant provisions of the Classifications Code and the supporting provisions of the Act are enacted for a legitimate end, are compatible with representative and responsible government and are reasonably appropriate and adapted to achieving that end.
TO INSTRUCT IN MATTERS OF CRIME
The Classification (Publications, Films and Computer Games) Act 1995 (Cth) incorporates by reference in s 9, the provisions of the Classification Code. So far as its language permits the Code is to be construed conformably with the requirements of the ICCPR, common law with which that Convention is consistent in relation to freedom of expression and the implied constitutional freedom of communication.
In positive recognition of freedom of expression, the Code is literally consistent with those requirements. For it mandates application by the Classification Review Board of the principle that "adults should be able to read, hear and see what they want". That principle is cast in terms of the freedom of adult consumers. It may be accepted that it conveys a correlative freedom on the part of writers, publishers, film makers and producers of computer games to write, publish, make and produce what they want.
The construction of the qualifying criteria justifying refusal of classification is not simply a matter of diminishing the freedom so recognised by subtracting from it those restrictions construed in isolation. Their construction must be informed by the principle that recognises the freedom. They must also be construed in light of the other principles enunciated in the Code although none of those appears to have general application to a publication "that promotes, incites or instructs in matters of crime".
The phrase, "promote, incite or instruct" is a collocation of overlapping meanings. According to the Shorter Oxford English Dictionary, to promote is to further the growth, development, progress or establishment of (anything); to further advance, encourage. To incite, is to urge or spur on; to stir up, instigate, stimulate. To instruct, is relevantly to furnish with knowledge or information; to teach or educate.
The word "instruct" does not have to be construed in a way which excludes all elements of promotion or incitement. To do so would lead to a broad construction satisfied by the mere fact that a publication furnishes the reader with knowledge on "matters of crime". On that basis it could be argued that books or films describing or depicting the commission of crimes, real or fictitious, instruct in matters of crime. So too, a detailed newspaper report of how a particular crime was effected might be said to instruct in matters of crime.
Consistently with the principle of freedom of expression recognised by the Code itself, it must appear from the publication in question that it goes beyond the mere provision of information about crime and teaches or educates in matters of crime. Reflecting the theme of promotion or incitement the provision of information on matters of crime will constitute instruction if it appears from the content and context of the article, objectively assessed, as purposive, the relevant purpose being to encourage and equip people with the information to commit crimes. So construed, this provision of the Code in my opinion seeks by reasonable and appropriate means to protect the rule of law which is of the essence of democratic society with representative and responsible government. Moreover, in its application to the crime of stealing it seeks to protect a fundamental right recognised in the Universal Declaration of Human Rights which is the right to own property alone as well as in association with others.
The approach of the learned trial judge was criticised by the appellants as accepting a meaning of instruct that was merely "to furnish with knowledge" (other than stating the obvious). It may be that the adoption without qualification of the dictionary meaning including those words could convey a wider sense than is appropriate. But as his Honour said in his judgment:
"...an instruction, to fall within the Code, must do more than state the obvious or inform or convey knowledge of matters in such a general way that, in a real and practical sense, no instruction has really been given. Likewise, it is unlikely that an article that is truly satirical would, in a real and practical sense be characterised as instructional. It is difficult to conceive of such an article being instructional in the sense required by the Code."
In any event for reasons I will advert to shortly, the article in question, as assessed by the Classification Review Board, fell within the purposive meaning of "instruct" to which I have referred.
The appellants submitted that a publication cannot be said to "instruct in matters of crime" unless the evident intent and the likely effect of the publication is to bring about the commission of the crime. It is difficult to see how a rule requiring assessment of the likely effect of a publication in bringing about the commission of a crime would work in practice.
In my opinion the proposed limitation involves a reading down of the word "instruct" which is not justified having regard to its ordinary meaning and the constructional principles to which reference has already been made.
But conformably with the principle of freedom of expression, it cannot be extended to a publication which merely informs about matters of crime.
In considering whether a publication instructs in matters of crime in the purposive sense, the assessment is objective. The existence of words in the publication which, literally read, constitute such instruction, will not necessarily bring the publication within the Code. It must be read as a whole and in context. So a writing which is satirical or ironic or is offered as parody may not be instructional in the sense required by the Code. Its satirical or ironic character may be such as to negate instruction by conveying the message that it is not to be taken seriously. In other words it is not the purpose of the writing to encourage or equip the reader with information for the commission of a crime. There may be other indicators from tone and content including the nature of the publication and the market to which, on the face of it, it is directed that indicate a different characterisation. In student publications in particular it may be open to treat outrageous or offensive or shocking statements as statements whose purpose is to do little more than outrage, offend or shock even if presented in a form susceptible of a literal characterisation as instructional.
The evaluation of a publication is a matter for the Board in the discharge of its duties under the Act. The function of this Court upon an application for judicial review is to decide whether the Board has acted in accordance with the law. It is not to substitute its own assessment of the publication for that of the Board. Nor should it seek to judicialise the process of administrative decision making by imposing rigorous standards of detailed explanation.
The Board had regard to what it called "the content, theme and tone of the publication" which it found to be instructional and hortatory. In coming to that conclusion it referred to various phrases used in the article such as "suss out", "don't be put off", "Try to find where...", "make sure", "always double back" and "never get too confident". The layout of the article, in the view of the Board, conveyed an appearance of instruction by its division into six sections with headings and numbered sub-sections.
The approach taken by the Board, in substance if not in strict form, lay well within the application of an objectively assessed purposive construction of the word "instruct". And although it may be unnecessary to say so, in my opinion, that evaluation was correct. The question whether the character of the publication was intended to outrage, offend or shock rather than instruct was not in terms addressed by the Board. However, its assessment of the nature of the article was inconsistent with such a conclusion.
In my opinion, neither the Board nor his Honour is shown to have erred in their approach to construction and the application of the law to the publication in question.