[Letterhead: Office of Film and Literature Classification]
Ms Irene Graham
Electronic Frontiers Australia Inc
PO Box 382
NORTH ADELAIDE SA 5006
Dear Ms Graham
I refer to your letter of 2 November 1998 to the Ombudsman, in which you ask that certain documents be provided to you. I note that your request is being dealt with as a request under the Freedom of Information Act 1982 (the Act). As you know, part of your request was transferred to this office pursuant to the Act.
Of the documents referred to this office by the Ombudsman, the following are released to you, and copies are enclosed:
1. Letter from the Australian Government Solicitor (Marcus Bezzi) to Ms Christine Petrov, Associate to Justice Heerey of the Federal Court of Australia, dated 25 March 1998;
2. Facsimile message from Christine Petrov to Marcus Bezzi dated 26 March 1998; and
3. Facsimile cover sheet from Simon Webb, Acting Deputy Director, Classification Board, to Phyl Crawford, Commonwealth Ombudsman Office, dated 2 September 1998.
The letter of advice from Mr Andrew Barram dated 13 July 1998, and the enclosure to item 3 above are exempt documents under section 42 of the Act (legal professional privilege) and, accordingly, are not released to you. In this respect, I refer you to section 9 of the Ombudsman Act 1976.
Acting Deputy Director
22 December 1998
[Letterhead: Australian Government Solicitor]
25 March 1998
Ms Chris Petrov
Associate to Justice Heerey
Federal Court of Australia
450 Little Bourke Street
MELBOURNE VIC 3000
By Facsimile: (03) 9670 4965
Dear Ms Petrov
CLASSIFICATION REVIEW BOARD ATS BROWN & OTHERS - FEDERAL COURT PROCEEDINGS VG 314 OF 1997
I refer to a telephone conversation between yourself and Marcus Bezzi of this office earlier today.
[There is no point no. 1]
2. The Full Court's published reasons for judgment include, as a schedule to Justice Heerey's reasons, a copy of the article published in Rabelais Vol.29(6) 'The Art of Shoplifting'. It was the inclusion of that article in Rabelais that led to the decision by the Respondents to confirm the classification of Rabelais Vol.29(6) as 'Refused Classification'(RC). That decision has been unanimously upheld by the Full Federal Court.
3. I have been instructed to bring the following matters to the Court's attention:
(a) The Victorian Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (the 'Victorian Act') creates an offence of printing or otherwise making or producing an objectionable publication for the purpose of publishing it (s.32).
(b) The Victorian Act defines objectionable publication in such a way
as to include
'a publication that -' ... '(d) promotes, incites or instructs in matters of crime or violence; or (e) is classified RC or would, if classified, be classified RC'.
(c) The Queensland Classification of Publications Act 1991 contains corresponding provisions (s. 17). It does not presently appear that there is any other similar legislation in Australia.
4. My client is concerned that the Court may not have been aware of the Victorian Act (and any other parallel legislation) when it marked the reasons for judgment, which include
the schedule to Justice Heerey's reasons, 'General Distribution'. As I recall, the Victorian Act did not figure prominently in the submissions made to the Court.
5. My client's concern arises in the following ways. First, 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. Secondly, leaving aside the question whether any illegality would be involved, it does seem inappropriate, and contrary to normal principle, that the article be published as a result of a Court judgment upholding a decision that the article be refused classification.
6. My client is, of course, prepared to appear and make any formal submissions that may further assist the Court.
7. Please note that I have sent a copy of this letter to the Solicitor for the appellants.
Senior Government Solicitor
for the Australian Government Solicitor
Telephone: (02) 9581 7470
Facsimile: (02) 9581 7627
Email: [email protected]
[Letterhead: Federal Court of Australia]
FAX TRANSMISSION SHEET
To: Marcus Bezzi
Fax To: 02 9581 7627
From: Christine Petrov, Tel. No: 03 9289 9307
Associate to His Honour Heerey J
Date: 26/3/98 No. of pages ONE (including this page)
Subject: VG 314/97 Brown v Classification Review Board
I refer to the above matter and advise that your fax has been referred to members of the Full Court.
Their Honours see no reason why the judgments should not be published in the ordinary way.
Associate to His Honour Heerey J
A/g DEPUTY DIRECTOR'S OFFICE
FACSIMILE COVER SHEET
To: Phyl Crawford Commonwealth Ombudsman Office
Fax No: 026 249 7829
From: Simon Webb
Telephone: (02) 9581 7011
Fax No: (02) 9581 7079
Date: 2/9/98 No of pages 3
NOTE: If transmission is incomplete please ring (02) 9581-7000
POSTAL ADDRESS: Level 1, 255 Elizabeth Street, Sydney NSW 2000