Censorship laws threaten freedom
to access case law

Last Updated: 22 March 2000


OFLC uncertain of its censorship powers

In July 1998, the Acting Chief Censor informed EFA that the Classification Board of the Office of Film and Literature Classification (OFLC) does not know what its powers are and does not intend to find out. This attitude threatens the rights and freedom of Australians to access case law, either by application of censorship law, or by uncertainty and intimidation. In August 1998, EFA lodged a complaint regarding the OFLC with the Commonwealth Ombudsman. Detailed information on the background and the outcome of the complaint and an associated application under the Freedom of Information Act is provided below.

Contents:

EFA's Application to the OFLC

On 23 April 1998, EFA sent an application to the OFLC for classification of a printed publication under Section 13 of the Classification (Publications, Films and Computer Games) Act 1995 ("the Act"). The publication in question was the Full Federal Court judgment in Michael Brown and Others v Classification Review Board (the notorious case of Rabelais - the La Trobe University student newspaper), a copy of which had been purchased from the Federal Court.

EFA lodged the application following indications that the rights and freedom of Australians to access case law were under threat due, at the least, to uncertainty regarding the reach of censorship laws.

The Age newspaper had reported on 28 March 1998 that it has been suggested that publication of Court judgments could be subject to Australia's censorship laws and that a lawyer from the Australian Government Solicitor's office had written to a Federal Court judge saying he might have breached the law by publishing a banned article on shoplifting in a schedule to the judgment that upheld its banning. According to the report, the lawyer also said:

"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"
and Ms Andree Wright, the Acting Director of the OFLC had said:
"it 'may be a possibility' the legislation applied to publication of court judgments."

Also according to The Age report:

"Justice Heerey's associate, Ms Christine Petrov, wrote in reply [to the Government Solicitor's office] 'Their honors see no reason why the judgments should not be published in the usual way.' "

(See also additional extracts from The Age.)

However, 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 from Federal Court registries, an unusually lengthy delay which 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 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).

During the three month wait for the OFLC's response to the application, EFA telephoned the OFLC querying when their response would be forthcoming. A Senior Classifier advised, after several hours delay while locating and ascertaining the status of the application, that EFA's application had been referred to the Government Solicitor for legal advice as to whether the Classification Board had the jurisdiction to classify the particular publication.

The OFLC's Response to EFA's Application

Eventually, EFA received a letter from the Acting Director of the OFLC, dated 17 July 1998, which said:

"I refer to your application dated 23 April 1998 under section 13 of the Classification (Publications, Films and Computer Games) Act 1995 ("the Act") for the classification of the Full Federal Court Judgement in Brown and Others v Classification Review Board.

I write to inform you that the Classification Board is concerned that:

(a) undertaking the requested classification exercise in relation to the Federal Court"s judgement is probably outside the powers conferred on the Classification Board by the Act; and

(b) undertaking that exercise would give rise to a significant risk of contempt of court.

You may wish to seek a Court ruling that undertaking the classification exercise is within the power of the Classification Board and would not be a contempt of court. This, of course, is a matter for you. However, in the absence of such a ruling, the Board declines to act on the classification application.

You may wish to apply for a refund of the fee paid by Electronic Frontiers Australia Inc when it applied for classification. If so please advise me.

Yours sincerely,

Andree Wright
A/g Director

17 July 1998"

EFA has been unable to identify any provision in the Act which enables the Classification Board to refuse to act on legislatively-compliant applications for service merely by claiming that they are uncertain of the powers conferred on them by the legislation under which they are established. The publication submitted for classification falls unquestionably within the definition of "publication" in the Act which is defined as follows:

" '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;"
The Act does not specify any types of publications that are exempt from classification, nor that the Board may "decline" to classify, on receipt of an application for classification.

The apparent uncertainty regarding the reach of censorship laws threatens the rights and freedom of Australians to access case law. Many Court decisions include details of criminal activity which could be seen to "instruct in matters of crime or violence".

Comments from the Court judgment are notable:

Justice Sundberg:

"In my view "instruct in matters of crime" involves two elements: first, furnishing readers with information as to how crime can be committed, and secondly, encouraging them to use that information to commit crime. The mere furnishing of information about how to commit crime is not sufficient. If it were, a newspaper report about how a bank was broken into and robbed might instruct in matters of crime. That could not have been Parliament's intention."

Justice Heerey:

" "To impart information which can be used ... is necessarily to encourage its use if the recipient of the information is so inclined." Langer v Australian Electoral Commission (1996) 186 CLR 302 at 326 per Dawson J. "

If Justice Sundberg's view that it could not have been Parliament's intention to proscribe the mere furnishing of information about how to commit crime is correct, then there would seem to be no doubt that Parliament did not intend that publication and distribution of Court judgments be subject to censorship law. However, it appears that neither the OFLC or the Government Solicitor are sure about that. While the current Board considers that classification of Court judgments is "probably" outside their powers, future Boards may hold a different opinion.

EFA believes the censorship laws in this regard should be clarified and that if the Board is uncertain of their powers and statutory obligations, it would be appropriate for the OFLC to take any necessary action to become properly informed. It is not appropriate for the OFLC to require members of the public, their clients, to obtain a Court ruling to advise the Board of their powers in order to receive service.

With regard to the Board's stated concern that acting on EFA's application would give rise to a "significant risk" of contempt of court, if this is the case, it would seem that amendment to relevant legislation is warranted; either to clearly exclude Court judgments from censorship laws or to enable the Board to carry out responsibilities assigned by Parliament without fear. EFA considers the former to be the only acceptable situation in a democratic society.

EFA's complaint to Commonwealth Ombudsman

In early August 1998, EFA lodged a complaint with the Commonwealth Ombudsman regarding the OFLC's failure to provide either the service paid for or unequivocal advice that acting on EFA's application is outside the powers of the Board.

Commonwealth Ombudsman Office Response to EFA

The Commonwealth Ombudsman's office responded to EFA's complaint in a letter dated 21 October 1998 advising that they had written to OFLC and had received a comprehensive reply, including the legal advice relied on by the OFLC in declining to act on EFA's application for classification - details of which were not provided to EFA.

The letter advised that "[n]otwithstanding that the judgment appears to be capable of being a "publication"; for the purposes of the [Act]", in view of the information provided by the OFLC to the Commonwealth Ombudsman's office and because the CO's office believes it would be available to EFA to seek judicial review of the OFLC's "decision", or the capacity of the Board to make a decision, it had been decided that further investigation would not be warranted. Neverthless, the file had been left open for a short period should EFA wish to comment on any aspect of the letter.

The brief information and opinions provided by the Commonwealth Ombudsman's office were insufficient to resolve EFA's concerns regarding whether or not publication, distribution, etc of case law is subject to censorship laws and the OFLC's failure to address and clarify this issue.

There is obviously considerable doubt amongst the legal fraternity as to the legality of distributing the Court judgement and, 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. To date, it seems 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.

EFA's Response to the Commonwealth Ombudsman

EFA responded to the Commonwealth Ombudsman's office in a detailed letter dated 2 November 1998 stating, amongst other things, that:
"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."

EFA also requested copies of all correspondence, etc, between the offices of the Commonwealth Ombudsman and the OFLC relative to EFA's complaint, including a copy of the legal advice relied upon by the OFLC in declining to act on EFA's application, which was disclosed to the Commonwealth Ombudsman's office. While the OFLC has claimed this advice is subject to Legal Professional Privilege, EFA notes that the confidentiality of the communication was lost by it being passed to a third party and the OFLC's apparent desire to keep this information secret, from the public, raises questions as to why.

Commonwealth Ombudsman Office Second Response to EFA

On 4 November 1998, a representative of the Commonwealth Ombudsman's office advised by telephone that, as in their opinion no new issues were raised in EFA's letter of 2 November, they would close the complaint and EFA's request for copies of documents would be treated as a Freedom of Information (FOI) application.

Freedom of Information Application to Commonwealth Ombudsman

The Commonwealth Ombudsman confirmed in a letter dated 9 November 1998 that EFA's request for documents would be treated as an FOI application. EFA was asked to pay an FOI application fee of $30 and this was sent. Confirmation of receipt of the FOI application was received from the Commonwealth Ombudsman's office by letter dated 19 November 1998.

The Commonwealth Ombudsman's office subsequently advised that part of the FOI request was being transferred to the OFLC because the subject matter of the documents was more closely connected with the function of the OFLC rather than the Ombudsman. This advice was provided in letters dated 8 December 1998 and 11 December 1998. Documents released by the Commonwealth Omubudsman's office were received under cover of a second letter dated 11 December 1998.

The OFLC responded to the part of the FOI application that had been transferred to the OFLC by the Commonwealth Ombudsman in a letter dated 22 December 1998 from Margaret Harradine, Acting Deputy Director. Several documents were released with this letter.

Documents released under FOI by Commonwealth Ombudsman Office and OFLC

Doc. Date Item Released by:
25 Mar 98 Letter from the Australian Government Solicitor (Marcus Bezzi) to Ms Christine Petrov, Associate to Justice Heerey of the Federal Court of Australia OFLC
[Request transferred to OFLC by CO (FF100-101)].
26 Mar 98 Fax from Christine Petrov, Federal Court to Marcus Bezzi, Australian Government Solicitors Office. OFLC
[Request transferred to OFLC by CO (FF99)].
13 Jul 98 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.

Note: According to the OFLC's letter to the CO of 31 August 1998, the letter from Andrew Barram apparently contained the advice relied upon by the OFLC in advising EFA on 17 July 1998 that the Classification Board declined to process EFA's application for classifiction and that:

"...the Classification Board is concerned that:
(a) undertaking the requested classification exercise in relation to the Federal Court's judgement is probably outside the powers conferred on the Classification Board by the Act; and
(b) undertaking that exercise would give rise to a significant risk of contempt of court."
The OFLC's letter to EFA did not state that the Classification Board had obtained legal advice. Since the legal advice has not been released, it is not known what other advice was provided in what appears to have been a five page document (the CO folio numbers for the document are 102-106).
Not released. The OFLC advised that "The letter of advice from Mr Andrew Barram dated 13 July 1998, and the enclosure to the [OFLC fax of 2 Sept 98] 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."
[Request transferred by CO (FF102-106) to OFLC].
4 Aug 98 Commonwealth Ombusdsman letter to OFLC advising of EFA complaint, requesting OFLC provide various docs to CO by 31 August 1998 and asking whether EFA had appeal rights to Classification Review Board. CO (FF13)
31 Aug 98 OFLC fax to Commonwealth Ombudsman Office attaching the OFLC's letter of 31 August 1998 and advising that documents requested by the CO were being couriered to the CO that day. (Previously received with CO letter to EFA of 21 October 1998).

Note: The OFLC letter of 31 August 1998 responded to the CO's letter of 4 August 1998. However it did not include a response to the CO's request for advice regarding "whether or not EFA has appeal rights to the Classification Review Board in relation to your decision". This advice was apparently subsequently provided by the OFLC on 2 September 1998 (see next item).

CO (FF15-17)
2 Sep 98 Facsimile cover sheet from Simon Webb, Acting Deputy Director, Classification Board, to Phyl Crawford, Commonwealth Ombudsman Office. OFLC (1 page only - CO FF111).
[Request transferred to OFLC by CO (FF109-111)].
Attachments to OFLC fax of 2 September 1998.

Note: According to a CO internal memo of 23 September 1998 the attachments included, at FF109-110, "legal advice re appeal rights to Classification Review Board" and the CO Director Policy had "commented on this at ff 112-113". Apparently the legal advice was from Marcus Bezzi, Senior Government Solicitor - see next item re FF112-113.

Not released. OFLC claimed document exempt - legal professional privilege.
7 Sep 98 Advice from CO Director Policy (Paul Bluck) to CO Snr Investigation Officer (Phyl Crawford). Document is a copy of an email message from Paul Bluck, subject line: "judicial humourists", commenting on "the e mail of Mracus (sic) Bezzi's view on EFA's application to classify a judgment of the Federal Court."

Note: It is not clear from Mr Bluck's email whether or not Marcus Bezzi was of the view that EFA had appeal rights to the Classification Review Board regarding the decision to decline to deal with EFA's application. However, Mr Bluck's email message seems to indicate that Mr Bezzi's view was that EFA did not have such a right and that Mr Bluck disagreed with that view.

In addition, a printout from the CO Case Management System provided under FOI states in the case summary that: "OFLC advised C does not have right of appeal to Classification Review Board because no decision has been made. OFLC provided legal advice from A/Gs."

CO (FF112-113)
15 Sep 98 CO "Note for File/Minute" containing brief record of telephone conversation with I. Graham of EFA regarding inquiry as to status of investigation. The handwritten notes state, inter alia, that the CO officer advised that "we have already sought our own legal opinion on some of the material".

Note: The only reference, in material released by the CO, to documents that could be seen to be a legal opinion is the inclusion of the email message of 7 September 1998 from the CO Director Policy (Paul Bluck). The CO did not deny access to any documents, on ground of legal professional privilege or any other ground, except those they transferred for processing to the OFLC.

CO (FF114)
23 Sep 98 Memo from Phil Crawford, CO Snr Investigation Officer, to Paul Bluck, CO Policy Director, summarising status of EFA complaint and advising that she proposed:
"...to write to C [EFA], enclose the letter from OFLC at ff 107-108, state that in my opinion OFLC has made a decision which is reasonably open for it to make and do not consider there has been any defective administration; therefore no purpose in any further investigation. I will remind C it may ask for a refund of application fee which OFLC is keen to provide. If C wants to pursue the issue it has the option of applying for a Court ruling on the extent of powers of OFLC to classify a Court judgement."
CO (FF115)
16 Oct 98 Draft letter from Phyl Crawford to EFA, with "from Paul Bluck" handwritten on the top. This letter is identical to that finally sent to EFA on 21 October 1998 except that the final letter added that a copy of the OFLC's letter of 31 August 1998 was enclosed and that the file would be left open until 4 November 1998 in event EFA wished to comment further. Both the draft and final letter advised that:
'I believe it would be available to you to seek judicial review of:
  • either the "decision" (in terms of paragraph 5(e) of the Act) to "decline to deal with or to deal with further [your] application"; or
  • to seek a ruling of the kind contemplated in Ms Wright's letter of 17 July 1998 about the Board's capacity to make a decision.'
From the documents provided under FOI, the first dot point appears to be the opinion of Paul Bluck of the Commonwealth Ombudsman's office, and contrary to that of the OFLC and Marcus Bezzi of the Australian Government Solicitor's office.

CO (FF116-117)
3 Dec 98 Case Management System printout from the CO's database recording details of complainant, status of case/action taken etc. Lists complexity rating as "4 Complex complaint". The case summary states:
"AG - Office of Film & Lit Class is about to separate from AGs as a Stat Body but the Bill is still in the Senate. C applied to OFLC to have a publication classified which included the Full Federal Court Judgement in Michael Brown & Ors v OFLC. This ruling quoted extensively from an article The Art of Shoplifting as published in Rabelais July 95. OFLC declined to act on the application (on legal advice) & advised C to seek a refund of applic fee. OFLC advised C does not have right of appeal to Classification Review Board because no decision has been made. OFLC provided legal advice from A/Gs. OFLC reminded of need to advise applicants of any review rights in decision letter. Response to C (OFLC response to C a reasonable decision/action for it to make) endorsed by POLPA. OFLC had advised C (17/7/98) to seek a ruling from a Court as to whether OFLC has power to classify a Federal Court judgement and not be considered in contempt of court. EFA then requested all docs under FOI. Case closed and transferred for FOI process."
CO (FF135-136)

Summary

In April 1998, EFA asked (accompanied by the relevant fee) the government agency empowered and required to classify/censor publications what should be a simple question - basically: "Is publication/distribution of case law subject to classification/censorship legislation?".

Nine months later, after subsequently lodging a complaint with the Commonwealth Ombudsman regarding the OFLC and obtaining associated documents under the Freedom of Information Act, the question remains unanswered. It seems clear, however, that OFLC Classification Board members and officers of Australian Government Solicitor's office - at that time - were doubtful that the Classification Board is empowered to classify Court judgments and thought that doing so may be in contempt of Court.

EFA's inquiry arose because in March 1998 Marcus Bezzi, Senior Government Solicitor for the Australian Government Solicitor, had written to a Federal Court judge's associate suggesting that the Court may have breached the law by publishing a banned article on shoplifting in a schedule to the judgment that upheld its banning.

Apparently as a result of EFA's application for classification of the judgment, Mr Bezzi sought a legal opinion from Mr Andrew Barram of the Office of General Counsel, Australian Government Solicitor. Mr Barram apparently advised, in what seems to have been a 5 page document, that "undertaking the requested classification exercise in relation to the Federal Court's judgements is probably outside the powers conferred by the Act" and that "undertaking that exercise" [of classifying the judgement] "would give rise to a significant risk of contempt of court.".

However, the OFLC is not willing to provide, as requested by EFA, "an unequivocal written statement...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", nor are they prepared to provide a copy of the advice provided to them by the Australian Government Solicitor.

The legal advice obtained internally by officers of the Commonwealth Ombudsman's office disagrees with some of the views of Mr Marcus Bezzi of the Australian Government Solicitor and states, inter alia, "[w]ith respect to Mr Bezzi, his argument seems to require some measure of pulling itself up by the bootstraps".

EFA is of the view that the matter of whether Court judgments are subject to classification/censorship law should not be left to the discretion of members of the Classification Boards from time to time, nor subject to the opinion of officers of the Australian Government Solicitor from time to time.

EFA considers that the OFLC and CO's suggestion that EFA may "seek a Court ruling that undertaking the classification exercise is within the power of the Classification Board and would not be a contempt of court" is inappropriate. 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 situation and that neither the OFLC nor 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.

EFA believes that, to avoid doubt, the Classification (Publications, Films and Computer Games) Act 1995 and the Broadcasting Services Amendment (Online Services) Act 1999 should be amended to specifically exclude court judgments from the application of those Acts.

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