mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Associated Provincial Picture House v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223
Outcome: cited
applicant submitted that this Court needs to consider whether the Review Board's conclusions may have been different had it inquired into the whole question of educational merit. According to the Attorney, that submission overstates the Court's role in reviewing administrative decisions generally, and decisions of the Review Board in particular. In doing so, the applicant seeks to impose on the Review Board, and the Board, a duty to inquire which does not appear either expressly or by implication on the terms of the Act. As Wilcox J noted in Prasad v Minister for Immigration &amp; Ethnic Affairs (1985) 6 FCR 155 at 169 170, the circumstances in which an administrative decision will be invalid for failure to inquire are 'strictly limited'. His Honour considered that it was only in cases where it was 'obvious that material is readily available which is centrally relevant to the decision to be made' where proceeding to a decision without attempting to obtain that information may properly be described as unreasonable in the Wednesbury sense ( Associated Provincial Picture House v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 at 169 170). I cannot agree with these complaints. First, there was no obligation on the Review Board to make some wider or roving enquiry as to the educational or literary merit of each book, other than perhaps to have regard to 'material [that] is readily available ... [and] centrally relevant to the decision to be made' where proceeding to a decision without attempting to obtain that information may properly be described as unreasonable in the Wednesbury sense: Prasad at 169 170 per Wilcox J. That is not this case. There was no attack on the Review Board's finding that neither publication exhibited any discernible literary or educational merit on the basis that such a finding was not reasonably open. Clearly it was.
Case: Australian Capital Television Pty Limited v The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106
Outcome: cited
at the matters generally, in the applicant's submission, the following are protected: (1) the freedom of the Australian people to discuss government and political matters: Nationwide News v Wills [1992] HCA 46 ; (1992) 177 CLR 1 at 50; (2) the dissemination of information, opinions and ideas about all aspects of the Government of the Commonwealth: Nationwide News v Wills at 74; Cunliffe v The Commonwealth [1994] HCA 44 ; (1994) 182 CLR 272 at 364; and (3) the freedom to communicate views on a wide range of matters that may call for, or are relevant to, political action or decision: Australian Capital Television Pty Limited v The Commonwealth [1992] HCA 45 ; (1992) 177 CLR 106 at 138.
Case: CIC Insurance Limited v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384
Outcome: cited
fundamentally, the terms of para (c) of Item 1 of the Code dealing with those publications which are to be classified 'RC' cannot be construed by reference to para (c) alone, but are to be construed by reference to the context ( CIC Insurance Limited v Bankstown Football Club Ltd [1997] HCA 2 ; (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ) of the similar mandatory 'RC' classifications, namely, those in paras (a) and (b) as well. The terms of all three paragraphs are set out in [54] above. It is to be noted that both para (a), which includes the words '... in such a way that they offend against the standards of morality, decency', etc, and para (b), which includes the words '... in a way that it is likely to cause offence to a reasonable adult', look at the effect or likely effect of the publication on the reader, in contrast to the terms of para (c), which is no doubt what prompted Sundberg J in Brown (at 256G 257B) to observe: 'The appellants contended that the companion words "promote" and "incite", which it was said involve an intent to bring about the commission of a crime and have the commission of a crime as a likely consequence, mean that those elements are present in the word "instruct". I do not agree. The approach to interpretation identified by the maxim noscitur a sociis (the meaning of a word is affected by its companions) is only to be used when the meaning of word is ambiguous or unclear. See Commissioner of Taxation v Whitehouse [1961] HCA 10 ; (1961) 104 CLR 25 at 31 per Dixon CJ, Fullagar and Kitto JJ and R v Morton (1986) 42 SASR 571 at 575. I do not think "instruct" has either of those qualities. Further, the other publications in the RC classification are defined in terms that look to the effect or likely effect of the publication on the reader. Thus par (a) deals with publications which, for example, describe matters of drug misuse "in such a way that they offend ...". Paragraph (b) deals with publications which describe or depict a minor in a way that is "likely to cause offence" to a reasonable adult. Paragraph (c), by contrast, does not require that the publication have any effect or likely effect on the reader. The absence of such a requirement, when it has been included in pars (a) and (b), is a clear indication that it is not to apply to publications falling within par (c).' The applicant referred to Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 at 567, 568, where the High Court set out a two-stage test for determining whether a law infringes the constitutional implication. The test, as slightly modified in Coleman v Power , is as follows: (1) Does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? (2) If so, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the system of government prescribed by the Constitution ?
Case: GA Moonen v Film and Literature Board of Review [2000] 2 NZLR 9
Outcome: distinguished
support of its submission that a publication does not promote crime or violence unless the publication had an effect of the kind in (i) of [23] above, the applicant relied on three New Zealand decisions: &#8226; GA Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (' Moonen No. 1 ') &#8226; GA Moonen v Film and Literature Board of Review [2002] 2 NZLR 754 (' Moonen No. 2 ') &#8226; Society for the Promotion of Community Standards Inc v Film and Literature Board of Review [2005] 3 NZLR 403.
Case: GA Moonen v Film and Literature Board of Review [2002] 2 NZLR 754
Outcome: distinguished
support of its submission that a publication does not promote crime or violence unless the publication had an effect of the kind in (i) of [23] above, the applicant relied on three New Zealand decisions: &#8226; GA Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (' Moonen No. 1 ') &#8226; GA Moonen v Film and Literature Board of Review [2002] 2 NZLR 754 (' Moonen No. 2 ') &#8226; Society for the Promotion of Community Standards Inc v Film and Literature Board of Review [2005] 3 NZLR 403.
Case: Holland v The Queen (2005) 193 CLR 140
Outcome: approved
Attorney noted that in Holland v The Queen (2005) 193 FLR 140, a matter in which a small amount of political advocacy on laws pertaining to pedophilia was blended with a larger amount of child pornography, Roberts-Smith JA said the following (at [236]) in the course of rejecting the appellant's claim that the imported documents were protected by the constitutional freedom: 'The conduct of political discourse or debate about those matters neither requires nor justifies their presentation in combination with child pornography as defined by the legislation.' In the Attorney's submission, the analogy with the present case is that political discourse or debate about anti-terrorism laws does not require or justify publication of the two books the subject of these proceedings. The particular calls to arms contained therein are, at best, only remotely connected to that political debate. In summary, the Attorney submitted that to the extent that the applicant relies upon the freedom of political communications to protect the publications the subject of these proceedings from the Act and the Code on the basis that the content of those publications are political speech, it must be rejected. The freedom does not extend to speech advocating violence or crime to effect changes in laws, policies or government. To the extent that the applicant's reliance is premised upon the publications being in some way relevant to the issue of anti-terrorism laws, any restriction effected by the law on political communications is remote and not direct. THE SECOND LIMB: FIRST ELEMENT The Attorney submitted that the Court would not reach this issue unless it first found that the challenged law effectively burdened the freedom of communication about federal government and political matters. In the Attorney's submission, there appears to be no dispute that the primary object of the challenged law is to protect the Australian community from violence and crime. Needless to say, the object of the law is not incompatible with the system of government prescribed by the Constitution . Indeed, public safety is one of the most critical responsibilities of any government. THE SECOND LIMB: SECOND ELEMENT
Case: Levy v State of Victoria [1997] HCA 31 ; (1997) 189 CLR 579
Outcome: cited
to the applicant's submission, in the Attorney's submission the question for the Court is not whether some means other than those chosen by the Parliament may have been preferable or less onerous, but rather whether Parliament's choice was a reasonable one in light of the burden which it places on the implied freedom of communication about government and political matters: Lange at 561 562, 567. See also Levy v State of Victoria [1997] HCA 31 ; (1997) 189 CLR 579 at 598 per Brennan CJ, 608 per Dawson J, 614 615 per Toohey and Gummow JJ, 618 620 per Gaudron J, 627 628 per McHugh J, 647 648 per Kirby J; Coleman v Power at [31] per Gleeson CJ, [l00] per McHugh J, [292] per Callinan J, [328] per Heydon J; cf. at [235] per Kirby J; Mulholland v Australian Electoral Commission [2004] HCA 41 ; (2004) 220 CLR 181 at [32] [33] per Gleeson CJ, [248] [249] and [256] [267] per Kirby J, [360] per Heydon J. For the corresponding position under the Canadian Charter of Rights and Freedoms, see R v Sharpe [2001] 1 SCR 45 at [96] per McLachlin CJ, Iacobucci, Major, Binnie, Arbour and LeBel JJ: 'It suffices if the means adopted fall within a range of reasonable solutions to the problem confronted'. The Attorney submitted that the circumstances which bear upon the reasonableness of the Parliament's choice of means will vary from case to case. But they will usually include the nature and importance of the legislative object and the purpose, operation and effect of the particular law, including the degree to which the law burdens the discussion of government or political matters. Where the law is directed at or involves a substantial curtailment of discussion of federal government or political matters, 'reconciliation with the constitutional implication will be more difficult': Cunliffe v The Commonwealth at 339 per Deane J. As to the distinction between laws that have the purpose of restricting discussion of government or political matters and those that merely affect it incidentally, see generally Levy v State of Victoria at 611 and 614 per Toohey and Gummow JJ, at 618 619 per Gaudron J, at 645 per Kirby J. See also Coleman v Power at [326] per Heydon J; cf. at [30] [31] and [33] per Gleeson CJ; Mulholland v Australian Electoral Commission at [40] per Gleeson CJ. Here, the law challenged is not directed to communications about government or political matters. Depending on those matters, the extent of availability of alternative means to achieve the legislative object may also be relevant.
Case: Lodhi v R [2006] NSWCCA 121 ; (2006) 199 FLR 303
Outcome: cited
limbs of para (a) of the definition of 'terrorist act' and both paras (b) and (c) are each essential physical elements of the offence: Lodhi v R [2006] NSWCCA 121 ; (2006) 199 FLR 303 at [90] and [93]. It follows, in the applicant's submission, that incitement or promotion of the crime of engaging in a terrorist act involves: inciting or promoting action having one of the effects listed in subs (2) of the definition of terrorist act, which will not be action that falls within subs (3); in circumstances or in a manner where such action will be attended by the motivation prescribed by para (b); and in circumstances or in a manner where such action will occur with the intention prescribed by para (c). According to the applicant, the Review Board's findings and reasoning arguably address promotion or incitement of two elements of the offence of committing a terrorist act, namely, the causing of harm (the question under subs (2) of the definition of 'terrorist act') and the requirement that the publications have the intention of advancing a political, religious or ideological cause (the question under para (b) of that definition). The reasoning may also be said to deal with whether the causing of harm would be attended by the intention defined in para (b).
Case: Mulholland v Australian Electoral Commission [2004] HCA 41 ; (2004) 220 CLR 181
Outcome: cited
to the applicant's submission, in the Attorney's submission the question for the Court is not whether some means other than those chosen by the Parliament may have been preferable or less onerous, but rather whether Parliament's choice was a reasonable one in light of the burden which it places on the implied freedom of communication about government and political matters: Lange at 561 562, 567. See also Levy v State of Victoria [1997] HCA 31 ; (1997) 189 CLR 579 at 598 per Brennan CJ, 608 per Dawson J, 614 615 per Toohey and Gummow JJ, 618 620 per Gaudron J, 627 628 per McHugh J, 647 648 per Kirby J; Coleman v Power at [31] per Gleeson CJ, [l00] per McHugh J, [292] per Callinan J, [328] per Heydon J; cf. at [235] per Kirby J; Mulholland v Australian Electoral Commission [2004] HCA 41 ; (2004) 220 CLR 181 at [32] [33] per Gleeson CJ, [248] [249] and [256] [267] per Kirby J, [360] per Heydon J. For the corresponding position under the Canadian Charter of Rights and Freedoms, see R v Sharpe [2001] 1 SCR 45 at [96] per McLachlin CJ, Iacobucci, Major, Binnie, Arbour and LeBel JJ: 'It suffices if the means adopted fall within a range of reasonable solutions to the problem confronted'. The Attorney submitted that the circumstances which bear upon the reasonableness of the Parliament's choice of means will vary from case to case. But they will usually include the nature and importance of the legislative object and the purpose, operation and effect of the particular law, including the degree to which the law burdens the discussion of government or political matters. Where the law is directed at or involves a substantial curtailment of discussion of federal government or political matters, 'reconciliation with the constitutional implication will be more difficult': Cunliffe v The Commonwealth at 339 per Deane J. As to the distinction between laws that have the purpose of restricting discussion of government or political matters and those that merely affect it incidentally, see generally Levy v State of Victoria at 611 and 614 per Toohey and Gummow JJ, at 618 619 per Gaudron J, at 645 per Kirby J. See also Coleman v Power at [326] per Heydon J; cf. at [30] [31] and [33] per Gleeson CJ; Mulholland v Australian Electoral Commission at [40] per Gleeson CJ. Here, the law challenged is not directed to communications about government or political matters. Depending on those matters, the extent of availability of alternative means to achieve the legislative object may also be relevant.
Case: Prasad v Minister for Immigration &amp; Ethnic Affairs (1985) 6 FCR 155
Outcome: approved
applicant submitted that this Court needs to consider whether the Review Board's conclusions may have been different had it inquired into the whole question of educational merit. According to the Attorney, that submission overstates the Court's role in reviewing administrative decisions generally, and decisions of the Review Board in particular. In doing so, the applicant seeks to impose on the Review Board, and the Board, a duty to inquire which does not appear either expressly or by implication on the terms of the Act. As Wilcox J noted in Prasad v Minister for Immigration &amp; Ethnic Affairs (1985) 6 FCR 155 at 169 170, the circumstances in which an administrative decision will be invalid for failure to inquire are 'strictly limited'. His Honour considered that it was only in cases where it was 'obvious that material is readily available which is centrally relevant to the decision to be made' where proceeding to a decision without attempting to obtain that information may properly be described as unreasonable in the Wednesbury sense ( Associated Provincial Picture House v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223 at 169 170). I cannot agree with these complaints. First, there was no obligation on the Review Board to make some wider or roving enquiry as to the educational or literary merit of each book, other than perhaps to have regard to 'material [that] is readily available ... [and] centrally relevant to the decision to be made' where proceeding to a decision without attempting to obtain that information may properly be described as unreasonable in the Wednesbury sense: Prasad at 169 170 per Wilcox J. That is not this case. There was no attack on the Review Board's finding that neither publication exhibited any discernible literary or educational merit on the basis that such a finding was not reasonably open. Clearly it was.
Case: Society for the Promotion of Community Standards Inc v Film and Literature Board of Review [2005] 3 NZLR 403
Outcome: distinguished
support of its submission that a publication does not promote crime or violence unless the publication had an effect of the kind in (i) of [23] above, the applicant relied on three New Zealand decisions: &#8226; GA Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (' Moonen No. 1 ') &#8226; GA Moonen v Film and Literature Board of Review [2002] 2 NZLR 754 (' Moonen No. 2 ') &#8226; Society for the Promotion of Community Standards Inc v Film and Literature Board of Review [2005] 3 NZLR 403. In Society for the Promotion of Community Standards Inc v Film and Literature Board of Review, the New Zealand Court of Appeal again considered the meaning of subs 3(2) of the FVPC Act, although primarily in relation to the phrase 'tends to promote'. In Society for the Promotion of Community Standards Inc v Film and Literature Board of Review , the New Zealand Court of Appeal was concerned with the second half of the phrase in subs 3(2), namely 'tends to promote or support'. McGrath and Glazebrook JJ noted that the use of the words 'tends to' was 'designed to provide a sliding scale so as to ensure that it was not necessary for the classifying authority to come to the view that the publication's effect was definitely to promote or support the specified activities' (at [100]). In construing those words, their Honours were mindful of the 'Moonen (No. 1) principles' as to adopting a meaning 'which impinges the least on freedom of expression' (at [102] [103]).
Case: Tan v Vocational Registration Appeal Committee (1996) 71 FCR 405 
Outcome: cited
reference to 'violence' in the Code is a 'matter or thing' within the meaning of subs 21(1)(b) (the applicant cited Tan v Vocational Registration Appeal Committee (1996) 71 FCR 405 at 413G in support). According to the applicant, there is nothing in the Act or Code which indicates a contrary intention for the purposes of the common law or statutory presumption. The purpose of the Act and Code is to protect the Australian community from the effects of certain publications. That purpose is consistent with the application of the presumption. In both Statements of Reasons the Review Board, in stating the reason for its conclusion, said of the Criminal Code provisions words to the effect that: 'Under section 15.4, the offence [of engaging in a terrorist act] applies whether or not the conduct constituting the alleged offence occurs in Australia.'
Case: Wanganui-Rangitiki Electric Power Board v Australian Mutual Provident Society [1934] HCA 3 ; (1934) 50 CLR 581
Outcome: cited
Commonwealth legislation describes a matter in general words, according to the applicant it is presumed that the meaning of the words is confined to Australia (per Dixon J in Wanganui-Rangitiki Electric Power Board v Australian Mutual Provident Society [1934] HCA 3 ; (1934) 50 CLR 581 at 601. See also Pearce D and Geddes R, Statutory Interpretation in Australia (Butterworths, 2006) at [5.8]). That presumption is reinforced by subs 21(l)(b) of the Acts Interpretation Act 1901 (Cth) which provides: 'In any Act, unless the contrary intention appears: ... (b) references to localities jurisdictions and other matters and things shall be construed as references to such localities jurisdictions and other matters and things in and of the Commonwealth.'
Case: Western Aboriginal Legal Service Limited v Jones [2000] NSWADT 102 
Outcome: distinguished
support of its submission that a publication does not incite in matters of crime or violence unless the publication had an effect of the kind in (ii) of [23] above, the applicant referred to what was said by the New South Wales Administrative Decisions Tribunal ('the Tribunal') in a case under the Anti-Discrimination Act 1977 (NSW): Western Aboriginal Legal Service Limited v Jones [2000] NSWADT 102. One of the issues that arose in the case was the meaning of 'incite' in s 20C of the Anti-Discrimination Act . The Tribunal accepted that the proper approach was to look at the Macquarie Dictionary definition of 'incite' and to give the word its ordinary and natural meaning. The Attorney submitted that in Western Aboriginal Legal Service Limited v Jones , the Tribunal considered the meaning of the word 'incite' in a different statutory context to that at issue in this case. Section 20C(1) of the Anti-Discrimination Act declares it 'unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group'. The primary issue for the Tribunal was whether the word 'incite' incorporated an intent element. As the applicant acknowledges in [79] of its written submissions, having considered that the 'ordinary meaning' of 'incite' was unclear, the Tribunal had regard to extrinsic materials in order to properly define it in the particular context of s 20C(1) , including the Second Reading Speech and a report by the New South Wales Law Reform Commission on its review of the Act (at [86] [87], [89]).
Case: Wu Shan Liang v Minister for Immigration &amp; Ethnic Affairs [1996] HCA 6 ; (1996) 185 CLR 259
Outcome: approved
11(d) of the Act requires the Review Board to consider the persons or class of persons to or amongst whom material is published or is intended or likely to be published. Contrary to the applicant's submission that the Review Board did not take this consideration into account, the Attorney submitted that the Review Board found that both books 'may appeal to some disenfranchised segments of the community'. In the Review Board's opinion, the books were likely to find a market amongst this class of persons. Its expression of that opinion is indicative of consideration of the persons or class of persons to or amongst whom the books were intended or likely to be published. The applicant's assertion that the Review Board's comment is no more than 'a statement of the Board's view of the nature of the publication' is a semantic quibble of the type against which the High Court counselled in Wu Shan Liang v Minister for Immigration &amp; Ethnic Affairs [1996] HCA 6 ; (1996) 185 CLR 259.