Case: Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73 ; (1956) 99 CLR 111 
Outcome: distinguished
applicant submitted that, consistent with the High Court's approach in Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73 ; (1956) 99 CLR 111, the Review Board was obliged, in deciding whether either book promotes, incites or instructs in matters of crime or violence under the Code, to take into account the four matters prescribed in s 11 of the Act: see [8] above. A failure to take into account any of the matters prescribed by s 11 would be a failure to take into account a mandatory consideration constituting reviewable error. In addition, the applicant submitted that the application of a construction of 'promotes, incites or instructs in matters of crime or violence' which did not permit each of those s 11 factors to bear on the conclusion of whether the book promotes, incites or instructs in matters of crime or violence would constitute the application of a wrong legal test which would be a reviewable error. In Transport Publishing the High Court considered a similar criterion of the persons, classes of persons, and age groups to or amongst whom that literature is or is intended or likely to be distributed. Dixon CJ, Kitto and Taylor JJ said (at 118): 'There is the issue as to the persons amongst whom the literature is distributed. That is of course to be proved by evidence ...' The applicant submitted that the matters listed by the Review Board in section 4 of each Statement of Reasons, 'Evidence and Other Material Taken Into Account', contain nothing which would have enabled the Review Board to consider the criterion in subs 11(d). In any event, consistent with Transport Publishing , consideration of the subs 11(d) criterion required, in the applicant's submission, consideration of evidence extraneous to the publications themselves. The applicant submitted that the Review Board: (a) made no findings at all about the persons or class of persons to or amongst whom each book is published or is intended or likely to be published; (b) while reciting in section 2 of its Statement of Reasons the various statutory provisions (including subs 11(d)), did not address any part of the criterion specified in subs 11(d); (c) did not seek or consider evidence, extraneous to the publication, on the question of the persons or class of persons to or amongst whom it is published; (d) did not have regard to the letter to the Review Board from the Mufti of the Islamic Church in Australia regarding the publications in question and other publications. The Mufti wrote: 'Whilst in my office, Mr Trad contacted one of the bookshops that was alleged to stock this material. He was advised in my presence that most of these titles were taken off the shelf after the publication of the inflammatory article by one of the Sydney tabloids last year. The manager of the bookshop advised that they wish to avoid controversy and whilst the contents of these books were in his view misrepresented by the media, the proprietors felt that self-censorship was the course of action that better served social harmony and cohesion in the present atmosphere that seems very emotive when it comes to issues related to in Islam.' The Review Board's finding that each book 'may appeal to some disenfranchised segments of the community' is a statement of the Board's view of the nature of the publication. According to the applicant, it says nothing of the statutory question posed by s 11(d). Second, a determination of the persons or class of persons to or amongst whom each book is published or is intended or likely to be published would have permitted and required a more focused and nuanced consideration of the ultimate issue. According to the applicant, the conclusion that the books incite and promote in matters of crime and violence, like the question in Transport Publishing , falls into two parts. In that case the majority considered the tendency of the literature to deprave or corrupt. They said (at 118 119): ' [O] n the question of the tendency of the literature to deprave or corrupt any such persons [i.e. those amongst whom the literature is distributed] important distinctions must be observed. For the question necessarily has two aspects or falls into two parts. One is the content and nature of the literature and the other concerns the characteristics of the persons themselves. With reference to the second of these it may be said at once that ordinary human nature, that of people at large, is not a subject of proof by evidence, whether supposedly expert or not. But particular descriptions of persons may conceivably form the subject of study and of special knowledge. This may be because they are abnormal in mentality or abnormal in behaviour as a result of circumstances peculiar to their history or situation.' In the applicant's view, the Review Board in the present case found: (a) that neither publication would appeal to members of the Australian community generally; and (b) that if either publication were to appeal to any members of the Australian community, that appeal would be to 'some disenfranchised segments of the community'. The applicant argued that a finding as to the persons or class of persons to whom the books are published, or are intended or likely to be published, would enable and require the Review Board to then consider whether the characteristics of any of those people, taken together with the nature of the literature, makes the inciting and promoting in matters of crime and violence likely. In doing so, the argument continued, it may or may not be the case that the Review Board would be entitled or required to consider evidence based on study or special knowledge about people with those characteristics. For example, if the books are published, or are intended or likely to be published, only to Dr Pennell's students, Dr Pennell would presumably be able to inform the Review Board of the characteristics of those students, which would enable an assessment of the effect or likely effect of that publication on those students. Alternatively, if the books are published, or are intended or likely to be published, to a class of persons being potential terrorist recruits, presumably the Attorney will be in a position to provide information to the Review Board on the characteristics of that class. The applicant submitted, by reference to the High Court in Transport Publishing , that the Review Board should have had evidence before it, other than the publications themselves, to enable it to consider the criterion in subs 11(d) (see [121] [122] above). According to the Attorney, that submission rests upon an oversimplification of the legislative context in which the High Court made the comment, in Transport Publishing, that evidence was necessary on the question of 'the persons amongst whom the literature is distributed'. The Attorney pointed out that, in Transport Publishing , the Literature Review Board of Queensland had prohibited the distribution of certain publications on the basis that they were, in the opinion of the Board, 'objectionable', as that term was defined in the Objectionable Literature Act 1954 (Qld) . Pursuant to that Act, an appeal from that decision lay to the Supreme Court; for the purposes of that appeal, the decision was to be treated as if it were an order made by judges. Further, s 11 of the Objectionable Literature Act provided that the Court reviewing the decision 'shall determine as an issue in the appeal the matter of whether or not the literature in question ... is objectionable under and within the meaning of this Act and, in respect of that determination, shall not be bound by the opinion of the Board'. As the Court noted, the effect of this provision was that 'the cardinal question of fact ... upon which the order of the board must depend' was 'placed wholly within the determination of the court' (at 114). The need for the court to be satisfied by evidence is one thing; according to the Attorney, it is another thing altogether to subject an administrative tribunal to the same requirement. In any event, the Court in Transport Publishing stated that however much assistance could be sought in extrinsic evidence, it could be no substitute for 'the judgment of the court on the literature itself' (at 116). The Attorney submitted that the applicant advanced the same submission as it did in respect of the consideration required by subs 11(b), namely that the Court needs to consider whether the Review Board may have reached a different conclusion 'had it inquired into the question of the persons or class of persons to or amongst whom each book is published or is intended or likely to be published'. The Attorney relied upon his response to this argument above. The terms of subs 11(d) do not require any such inquiry to be made. Contrary to the assertion of the applicant in [129] above, the Review Board did not 'find' that neither of the two publications would appeal to members of the Australian community generally. The applicant's assertion, according to the Attorney, rests upon an unfounded assumption that because the Review Board considered that the publication may appeal to particular segments of the community, it would not appeal to the broader community. Even if the applicant could properly argue that one could extrapolate, from the Review Board's actual finding as to particular sections of the community, a negative finding as to the community generally, such a finding would only further support the Review Board having complied with the requirement in subs 11(d) that it consider the likely audience of the publications. The applicant's real complaint seems to be that the Review Board did not make some wider enquiry, outside a reading of the books themselves, on the question of educational merit and that it erred in law in not doing so; and that the persons or class of persons to or amongst whom each book is published or intended or likely to be published, is a matter required to be proved by evidence extraneous to the publications themselves ( Transport Publishing at 118 119 per Dixon CJ, Kitto and Taylor JJ) and that the Review Board erred in law in not seeking or considering such evidence. Second, I agree with the Attorney's submission that the applicant's complaint on the s 11(d) criterion lack of evidence extraneous to the publications themselves rests upon an oversimplification of the legislative context in which the High Court made the comment in Transport Publishing , that evidence was necessary on the question of 'the persons amongst whom the literature is distributed'. In my view, it was open to the Review Board to come to a conclusion on the subs 11(d) criterion without recourse to such extraneous evidence, and it made no error of law in not seeking or considering such evidence. It follows, in my view, that the applicant cannot succeed on this ground. The applicant submitted that the Review Board could not lawfully make the decisions it made unless it concluded, having taken into account the matters specified in subs 11(b) and 11(d) of the Act, that the books incited or promoted in matters of crime or violence. If, contrary to the applicant's submissions, the Review Board did take into account the educational merit of the books, it did so without considering evidence upon which it could reasonably have been satisfied on that question, the applicant submitted. The only evidence the Review Board considered was the content of the books themselves. That could not inform an assessment of educational merit. Rather the assessment it informed was accurately stated by the Review Board: it was an assessment of discernible educational merit.