[Letterhead - Commonwealth Ombudsman]
21 October 1998
Ms I Graham
Electronic Frontiers Australia
PO Box 382
NORTH ADELAIDE SA 5006
Dear Ms Graham
I am writing to you about the complaint Electronic Frontiers made to the Ombudsman in August 1998 about the failure of the Office of Film and Literature Classification (OFLC) to deal with your application for classification of a Federal Court judgment.
As I understand you know, we wrote to OFLC about your complaint and we have now received a comprehensive reply, including the legal advice relied on by OFLC. For your information I am enclosing a copy of the OFLC response to this office. As we see the matter, the action taken by OFLC was reasonably open to it on the facts and the relevant law as advised to it. Notwithstanding that the judgment appears to be capable of being a "publication"; for the purposes of the Classification (Publications, Films and Computer Games) Act 1995 (the Act) there is, in my opinion, a serious issue about whether OFLC would lawfully be able to classify it and OFLC has responded properly to its concern about that issue. That issue arises from the likelihood that any decision to refuse classification (or to restrict availability) would be a contempt of court.
It follows from this that the Ombudsman would be unlikely to be able to form the opinion that the action of OFLC was unreasonable or otherwise defective - the formation of such an opinion being necessary before the Ombudsman is able to report. For that reason, and because I believe it would be available to you to seek judicial review of:
I have decided that further investigation by this Office would not be warranted. In coming to that decision, I have noted as well that the judgment has already been public for a number of months and that it has been the subject of some media attention. I will keep this file open until 4 November 1998 in case you wish to comment on any aspect of this letter. As you know my telephone number is 02 6276 0111.
Also as mentioned in Ms Wright's letter, it is open to you to request that OFLC refund your application fee.
Senior Investigation Officer
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[Letterhead: Office of Film and Literature Classification]
31 August 1998
The Commonwealth Ombudsman
GPO Box 442
CANBERRA ACT 260l
Attention: Ms Phyl Crawford
Senior Investigation Officer
Dear Ms Crawford
APPLICATION FOR CLASSIFICATION OF THE COURT JUDGMENT IN BROWN AND OTHERS V. THE CLASSIFICATION REVIEW BOARD
Thank you for your letter dated 4 August 1998.
2. I enclose the following documents which you requested in your letter or which I believe may be of relevance to your investigation:
3. Please note that the letter of advice listed at paragraph (a) is subject to Legal Professional Privilege. You may consider this to be an appropriate matter to take into account when considering what documents to release to the complainant.
4. You have asked for my comments on the issues raised by the letter to you from EFA. That letter raises two matters on which I wish to respond.
5. Firstly, the Applicant complains that the OFLC has not "provided a service for which the Applicant has applied and paid over three months ago". The Applicant sought to have a classification decision made in relation to a judgment of the Federal Court. As you will no doubt appreciate the circumstances in which the application arose are most unusual. I understand that the application made by EFA was the first application of its type ever to have been made under the Classification (Publications, Films and Computer Games) Act 1995 ('the Act'). When the request was received a view was formed within the Board that classification of a judgement of the Court might be beyond the power of the Board and / or improper. In these circumstances, it was considered that the appropriate course was to seek advice from the Australian Government Solicitor. A copy of that advice is enclosed with this letter.
6. The advice from the Australian Government Solicitor confirmed that "undertaking the requested classification exercise in relation to the Federal Court's judgements is probably outside the powers conferred by the Act". The Australian Government Solicitor also advised that "undertaking that exercise" [of classifying the judgement] "would give rise to a significant risk of contempt of court.". I note that the opinion given by the Australian Government Solicitor was settled at a high level within that organisation.
7. In the light of this advice the Board considered that the prudent and safe course for the Board to adopt would be to decline to act on the application. I therefore wrote to EFA and advised them of the Board's position. In these circumstances, the Classification Board has acted in a responsible and appropriate manner.
8. I note that EFA seeks "an unequivocal written statement from the OFLC or other relevant government authority advising that Court judgments are exempt from classification and that Public access to case law is not subject to classification / censorship legislation, supported by detailed authoritative advice of the basis relied upon in arriving at such a conclusion". In my view it is not the role of the OFLC to provide the written statements sought by the Applicant.
9. Please let me know if I can provide further assistance to you in resolving the complaints made by EFA.
Office of Film and Literature Classification