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PO Box 382 North Adelaide SA 5006  
Email: [email protected]  
Web: http://www.efa.org.au/  

2 November 1998

The Commonwealth Ombudsman
GPO Box 442

Attention: Ms Phyl Crawford, Senior Investigations Officer

Dear Ms Crawford

Office of Film and Literature Classification (OFLC) - Your Ref: C/98/15571

Thank you for your letter of 21 October 1998. Our comments and request for further information in relation to the matters raised therein follows.

We note your advice that "the action taken by OFLC was reasonably open to it on the facts and the relevant law as advised to it" and your opinion that there is "a serious issue about whether OFLC would lawfully be able to classify [the publication]" arising from "the likelihood that any decision to refuse classification (or to restrict availability) would be a contempt of court.".

In the absence of more detailed information in the above regard, this suggests that such an issue would not arise if the OFLC classified the publication "Unrestricted". This action appears to have been equally open to the OFLC on grounds of educational merit and legal character of the publication and the class of persons amongst whom the publication was intended to be published, etc, in accordance with Section 11 of the Classification (Publications, Films and Computer Games) Act 1995 (�the Act'), which states:

    "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."

It appears that the Board, or a Board representative, considered that if they were to classify the Court's publication of the judgement, the Board would do so in a manner which would restrict, or ban, distribution of same, thus indicating that the Board failed to take into account the requirements of Section 11 of the Act.

We also note your comments that EFA may seek judicial review of the Board's "decision" or a ruling regarding the Board's capacity to make a decision in the matter. As outlined in our letter of 3 August 1998, we do not consider this appropriate, nor that it should be necessary.

Firstly, while "decision" is defined in Section 5(e) to include the Board's declining to deal with an application under the Act, circumstances under which the Board may decline to deal with an application are specified in Sections 15 and 19. These relate to classification of films and computer games (not publications) in cases where, for example, the applicant has not provided sufficient information. This is not relevant to EFA's application. As mentioned in our letter of 3 August, the Act does not specify any types of publications which are exempt from classification, nor circumstances in which the Board may "decline" to classify publications, on receipt of application.

Secondly, with regard to our seeking a Court ruling relative to the Board's capacity to make a decision, the subject legislation was established, apparently, to inform members of the public of the types of speech proscribed by law. It was also intended, apparently, to facilitate a means by which the public may ascertain whether or not publication, distribution, etc of particular publications would contravene censorship laws, and may therefore result in their facing fines and/or terms of imprisonment. The government agency both empowered and required by legislation to make decisions in this regard is the OFLC.

If the OFLC is uncertain of their powers, or there is a risk that their actions in accord with the legislation under which they are established may be in contempt of court, we are of the view that it is incumbent on the OFLC to take appropriate steps, via for example the Federal Attorney General, to have the intent of Parliament clarified and, if necessary, the Act amended accordingly. As you may be aware, one of the roles of the OFLC Director is to provide policy advice to government. It is clearly open to the OFLC Director, at least, to seek clarification and/or recommend amendment of relevant legislation as found necessary or desirable. However, it appears that the OFLC would prefer that members of the public waste the Courts' time in seeking a ruling to clarify whether or not Court publications are subject to censorship laws. Regardless of the outcome of such a case, if it is not satisfactory to Parliament, it is open to Parliament to amend legislation to reflect their original intent. Given that neither the OFLC nor, as we understand from you, the Government Solicitor are certain of the meaning of the legislation, in EFA's view the matter should be clarified by government rather than by, even initially, time consuming and expensive action in the Courts undertaken by members of the public or voluntary non-profit organisations such as EFA.

Insofar as your comment that "that the judgment has already been public for a number of months and that it has been the subject of some media attention" is concerned, we do not understand the relevance. The mere availability of information to the public does not prove that its publication/distribution complies with the law, and thus that the publishers/distributors cannot and will not be subsequently prosecuted. The article included in a schedule to the Court judgement had, we understand, been published elsewhere prior to its publication in the La Trobe University student journal. It was subsequently published in a number of other university student journals, as has also been publicised in the media. However, only the former editors of the La Trobe journal have been prosecuted. Similarly, the Aug-Sep 1998 edition of Benetton "Colors" magazine, on sale in Australian newsagents in October 1998, includes a six page article containing detailed instructions on breaking into homes, to which attention was drawn in the Sydney Morning Herald some weeks ago. It is unclear whether these publishers/distributors have not been prosecuted because, for example, the context of publication of these articles (a relevant matter under the legislation) may have been considered a redeeming factor by the OFLC, or because the publications have not been directly brought to the attention of law enforcement authorities. Thus, it is not possible for members of the public to know whether or not a publication is being distributed legally, or may be so distributed, merely because it is being distributed. Again, the OFLC is the government agency empowered and required to make decisions and advise in this regard.

Furthermore, as you are aware, The Age newspaper reported on 28 March 1998 that a lawyer from the Government Solicitor's office had written to a Federal Court judge stating, amongst other things:

"Whether or not the legislation applies to publication or distribution of the article by the court as part of the court's judgment, there would appear to be an issue whether the legislation applies to consequential publication, and distribution by other persons/bodies"

Although the Federal Court decision was handed down on 24 March 1998, it was not until 3 April that the judgment became available on paper, and at a monetary cost, from Federal Court registries, an unusually lengthy delay which Federal Court librarians had been at a loss to explain to people seeking a copy of the Court's decision. A further six days passed before it was made available to law web site providers on 9 April. EFA learned that there had been discussion as to whether the judgment would be made available by the Federal Court to the on-line law site providers at all. While one of the three on-line law sites subsequently made the full judgment available (Austlii); one deleted the schedule containing the offending article (ScalePlus, provided by the Federal Attorney-General's Department), and another has not made the judgment available at all (LawNet).

It would appear that there is doubt amongst the legal fraternity as to the legality of distributing the Court judgement. In the absence of the on-line service provided by Austlii, it seems that the full judgement would not have been made available freely on-line to either members of the law profession or members of the public desirous of increasing their understanding of the laws with which they are required to comply. EFA considers this potential situation undesirable, especially in a democratic society. EFA therefore sought classification of the Court judgement, with the intent of clarifying the matter and thus minimising the likelihood that access of citizens to case law in future could be hindered as a result of threat or intimidation towards distributors. To date, however, it appears that governmental authorities would prefer that a question mark remain over whether or not citizens are entitled to readily and freely access case law, leaving them reliant on those prepared, evidently, to accept a risk that their re-publication of Court judgements might infringe censorship laws.

With regard to the OFLC's letter to your office of 31 August, which was attached to your letter to us of 21 October, we comment as follows:

Ms Wright, Acting Director of the OFLC said: "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."

We point out that EFA's "unusual" application would not have been lodged if a lawyer from the Government Solicitor's office had not taken the equally unusual step of writing to a Federal Court judge saying, we understand, that the OFLC thought he may have breached censorship laws. We therefore find it unusual that the OFLC Board did not, according to the OFLC's letter to you, form the view that classifying a judgement of the Court "might be beyond the power of the Board and/or improper" until they received EFA's application. Given that the OFLC provided copies to you of correspondence (of 25 and 26 March) with an Associate to Justice Heerey, apparently in support of their reasons for declining to act on EFA's application, it would seem that such a view should have been formed prior to receipt of EFA's application for classification over a month later.

We note that in Ms Wright's view it is not the role of the OFLC to provide the written statements sought by EFA, specifically, "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". EFA recognises that the OFLC is uncertain about their powers and have no apparent interest in, or intention of, clarifying the matter.

In view of the above, we request the following:

i)Copies of the following documents:
(a) Copy of a letter of advice from Mr Andrew Barram of the Office of General Counsel, Australian Government Solicitor to Mr Marcus Bezzi of the Australian Government Solicitor dated l3 July l998 (as attached to the OFLC's letter to you of 31 August);

While we note the OFLC claims this letter is subject to Legal Professional Privilege, we consider that the confidentiality of this communication was lost by it being passed to a third party. As is no doubt obvious, a desire to keep the information contained in the communication confidential raises the question as to why. As it may contain information which may resolve EFA's concerns and thus draw the matter to close, it would seem desirable that the communication be made available without any necessity for testing of the law relative to legal professional privilege along the lines of the recent decision by the Chief Justice of the ACT Supreme Court in Mann v. Carnell.

(b)Copy of a letter to Ms Christine Petrov, Associate to Justice Heerey of the Federal Court from Mr Marcus Bezzi of the Australian Government Solicitor dated 25 March l998 (as attached to the OFLC's letter to you of 31 August);

(c)Facsimile transmission note from Ms Christine Petrov, Associate to his Hon our Heerey J of the Federal Court to Mr Marcus Bezzi of the Australian Government Solicitor dated 26 March l998 (as attached to the OFLC's letter to you of 31 August);

We note that the OFLC indicated no concern relative to the provision of documents (b) and (c) to EFA.

(d)copies of correspondence from the Ombudsman's office to the OFLC, copies of correspondence from the OFLC to the Ombudsman's office, notes of any telephone conversations between respective officers, copies of any email or voicemail messages between respective officers, relating to EFA's complaint;
(e)copies of correspondence to and from Ombudsman's office by any other party relating to EFA's complaint, notes of telephone conversations and copies of any email or voicemail messages involving such other party;
(f)copies of any memo, post-it message or accompanying "with compliments" note relating to items (a) to (e) above;
ii)the OFLC classification service for which we applied and paid over 5 months ago; or
iii)a written undertaking from the OFLC to obtain clarification of whether or not it is the intent of Parliament that the OFLC be empowered to restrict access of citizens to case law by application of censorship legislation, and if not to recommend amendment to relevant legislation to clarify this issue accordingly; or
iv)in the event that the OFLC remains either unwilling or unable to undertake either of the activities in (ii) or (iii) above, that the Commonwealth Ombudsman recommend a governmental review of the relevant legislation be undertaken, and that amendment to legislation be made as necessary, to clarify whether or not Court publications are subject to classification/censorship legislation, for the benefit of the OFLC Board/s and members of the public.

Yours sincerely

I Graham (Ms)
Secretary - Electronic Frontiers Australia Inc.

Go to: Background to EFA's application to the OFLC and subsequent complaint to the Commonwealth Ombudsman