Printed for Phyl Crawford <...> 2
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Date: Mon, 7 Sep 1998 10:21:39 +1000
To: pc
From: Paul B1uck <...>
subject: judicial humourists
Thanks for passing up the e mail of Mracus (sic) Bezzi's view on EFA's application to classify a judgment of the Federal Court. This latest action forms a part of the hilarious saga of the university guide to shoplifting.
As some general observations, I think the judgment would be capable of falling within the definition of "publication": "publication" means any written or pictorial matter, but does not include:
(a) a film; or
(b) a computer game; or
(c) an advertisement for a publication, a film or a computer game."
But I am inclined to agree with Mr Bezzi that a Court would be likely to
reject any attempt by an official to restrict or prohibit publication of
the judgment of a Court. After all:
- a Court is able to make whatever orders it considers necessary about
publication of evidence or material in judgments and, on this occasion, the
Court was not minded to make such an order;
- the classification of a judgment may thus be considered by a court to go
beyond executive power and to trespass on judicial power;
- the forum for publication would be relevant (see section 11 of the Act):
"The matters to be taken into account in making a decision on the
classification of a publication, a film or a computer game include:
(a) the standards of morality, decency and propriety generally accepted by
reasonable adults; and
(b) the literary, artistic or educational merit (if any) of the
publication, film or computer game; and
(c) the general character of the publication, film or computer game,
including whether it is of a medical, legal or scientific character; and
(d) the persons or class of persons to or amongst whom it is published or
is intended or likely to be published.";
- by definition, a judgment will be of a "legal" character and the primary
reading audience for court judgments would be judges, lawyers and officials
dealing with the relevant legislation; and
- as you note, the Federal court decisions in the three Brown cases (single
judge, full court on appeal and costs) have been in circulation now for
some time and any damage caused by publication has probably been done.
In relation to the non consideration of the application. I disagree with Mr Bezzi. I think this action falls within the definition of "decision" (paragraph (e, specifically) because there would be nothing to prevent the Board from dealing with the application - even if to refuse it. The application was made under the Act and the judicial character of the judgment and the other features would simply have been reasons for delining (sic) to restrict publication. With respect to Mr Bezzi, his argument seems to require some measure of pulling itself up by the bootstraps*[footnote]. Whether or not the application was within the Act would be highly relevant, but it is a matter which requires a decision and (probably) some opportunity for the applicant to make submissions.
"decision" means a decision of the Board:
(a) to classify or refuse to classify a publication, a film or a computer
game; or
(b) to determine the consumer advice to apply to a film or a computer
game; or
(c) to approve or refuse to approve an advertisement for a publication. a
film or a computer game or to impose conditions on such an approval; or
(d) to grant a certificate of exemption for a film; or
(e) to decline to deal with or to deal further with an application under
this Act; or
(f) referred to in subsection 21A(l);
and includes a decision of the Board under section 39.
Printed for Phyl Crawford <...> 1
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Paul Bluck,7/9/98 10:21 AM +1000, judicial humourists 2
PB