? { | JUDGMENT No. S201)... F) CATCHWORDS ADMINISTRATIVE LAW - judicial review - applications for urgent relief - evidence required - queue jumping in applications - decision of Cinematograph Films Board of Review confirming decision of Film Censorship Board to classify the film "Full Metal Jacket" for Restricted Exhibition ("R") - aggrieved person - failure to reconvene Board to consider or consult Board on additional matters before decision takes effect - improper exercise of power —- denial of natural justice - legitimate expectation - procedural fairness. Administrative Decisions (Judicial Review) Act 1977 ss 5(1), (2), 6 Film _ and Video Tape Classification Act 1984 (NSW) ss 9(1), 15(4) Customs (Cinematograph Films) Regulations 38, 35, 39C VILLAGE ROADSHOW CORPORATION LIMITED ~- v — PETER SHEEHAN G 388 OF 1987 FEanfeld J. 9 October 1987 FEDERAL COURT Sydney AUSTRALIA oF PRINCIPAL REGISTRY serene rey me IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 388 of 1987 GENERAL DIVISION CORAM: PLACE: DATE: 1. Between: VILLAGE ROADSHOW CORPORATION LIMITED Applicant FE PETER SHEEHAN Respondent Einfeld J. Sydney 9 October 1987 - MINUTE OF ORDERS AND DIRECTION Order that the decisions by the respondent (a) (b) (c) not to reconvene the Cinematograph Films Board of Review for the purpose of reconsidering its censorship classification of the film "Full Metal Jacket", not to notify the members of the Board of the applicant's request and reasons for a reconsideration, and not to ascertain their views before refusing such request be set aside. Direct that the Cinematograph Films Board of Review reconsider the applicant's application for a further consideration of the said censorship classification. Order the respondent pay the costs of the applicant. Lowe ce ner ee ae a5, te nner weer t IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 388 of 1987 ) ) GENERAL DIVISION Between: VILLAGE ROADSHOW CORPORATION LIMITED Applicant And: PETER SHEEHAN Respondent CORAM: Einfeld J. PLACE: Sydney DATE: 9 October 1987 REASONS FOR JUDGMENT ' The applicant seeks judicial review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") of a decision of the Cinematograph Films Board of Review ("the Review Board") rejecting the applicant's appeal from the decision of the Film Censorship Board ("the Censorship Board") to classify the film "Full Metal Jacket" ("the film") for restricted exhibition ("R") and to confirm the Censorship Board's decision to classify the f1lm accordingly. The applicant is the distributor and marketer of the film, and the respondent, a Professor of Psychology at Queensland University, is Chairman of the Review Board. By appropriate arrangements between the parties and as a result of earlier directions of the Court, the respondent assumed responsibility, for the purposes of this litigation, for the relevant decisions of which judicial review is sought. spe erg oppor tenes ee The applicant also seeks judicial review of the respondent's personal decision, or conduct for the purpose of making the decision, not to reconvene the Review Board to consider its decision further following a written request by the applicant. The appeal itself was heard by the Review Board on 30 July 1987. Its decision was communicated to the applicant by letter of 3 August 1987. The application for further consideration of the matter was conveyed by letter from the applicant to the respondent dated 6 August 1987 and delivered to the office of the Review Board on 7 August 1987. It was refused by the respondent on the same day, and the refusal to reconsider was confirmed by letter from the respondent to the applicant dated 11 August 1987. The applicant first sought leave to give _ short notice of this application on 11 August 1987 in order to prevent its publication in the Commonwealth Government Gazette. This was said to be necessary because under the relevant legislation, viz. the Film and Video Tape Classification Act 1984 (NSW) ("the Film Classification Act") section 11(2), the decision of the Review Board does not take effect until it 1s gazetted. The original application for judicial review Named as respondents the Commonwealth Government Printer and Acting Commonwealth Government Printer, one of whom, it was said, would without injunction be likely to publish this classification within a matter of hours or, at most, days. In the event, the application for an urgent hearing appears to have been misconceived because there does not seem to be a_ time limitation for the publication of the classification nor was its publication as imminent as was feared. In this case, as might be expected, a Commonwealth body and officers exercising powers under Commonwealth statutes had no difficulty agreeing to withhold publication pending the completion of these proceedings. This agreement persists to this day. There should ordinarily not be a need for "queue Jumping" in applications, especially against or involving a government agency or official, nor the joining of parties who have nothing to do with the dispute, unless the anticipated respondent has indicated on request that there will be no withholding of otherwise intended action without judicial order or intervention. It 1s inmy view a misuse of the Court's process to seek urgent relief where no effort has been made to secure the same result by negotiation or agreement between the parties. The efforts to obtain consent to delay pending judicial consideration should ordinarily be a prerequisite to, and evidenced upon, an application for urgency. In New South Wales, both the Censorship and the Review Boards, although Commonwealth agencies, administer film classification under the Film Classification Act, under which the available classifications for films intended for public release are prescribed by section 9 as follows: "g (1) Except as provided by subsection (2), the censor shall classify a film for which application for classification has been made (a) as a "G" film, where the censor is of the opinion that the film is suitable for general exhibition; (b) as a "PG" film, where the censor 1s of the opinion that the f1im should be viewed by a person under the age of 15 years only with the guidance of a parent or guardian of the person; ar oe a eps eee ee ween mee eee aoe en ey ee eee (c) as an "M" film, where the censor is of the opinion that the f1jm cannot be recommended for viewing by persons under the age of 15 years; or (d) as an "R" film, where the censor 1s of the opinion that the film is unsultable for viewing by a minor." (Subsection (2) is not here relevant.) In the first instance, this 1s decided by the Censorship Board from which an appeal lies to the Review Board. This body is established under Part IV of Regulations") made Regulations provide Board and establish pursuant to the Commonwealth Customs regulations are 38 and 39 which provide: "38. (1) (2) (3) 39. (1) (2) The functions of the Board of Review may he exercised by not less than three members of the Board of Review of whom one is_ the Chairman of the Board of Review or the Deputy Chairman of the Board of Review." The Chairman of the Board of Review shall determine which members are to constitute the Board of Review in relation to an application under regulation 39 of these Regulations. The functions of the Board of Review may be exercised by three members of the Board of Review notwithstanding that three other members of the Board of Review are at the same time exercising the functions of the Board of Review. A person aggrieved by a decision of the Censorship Board on a matter arising under these Regulations may apply to the Board of Review to review the decision of the Censorship Board. An application under the last preceding sub- regulation shall be 1n accordance with Form 7 and shall be lodged with the Chazimman of the Board of Review within fourteen days after the date of the decision of the Censorship Board to which it relates or within such further period as the Chaimnan of the Board of Review allows." the Customs (Cinematograph Films) Regulations ("the Act. These for the constitution and personnel of the Review its powers. For present purposes, the applicable cme ee - ceo ee a The Censorship Board found that this film was produced and directed hy Stanley Kubrick in the United States, that it was 116 minutes in length and, hy unanimous decision, that it warranted an "R" classification. The evidence establishes that the film deals with the Vietnam war at the time of the so-called "Tet Offensive" and that the effect of the film was to be anti-war. The Censorship Board was of the opinion that the film had considerable merit and technical sophistication, but contained "some of the most graphic and realistic violence seen in a war film". The Censorship Board found the film to have "a very powerful emotive and lingering impact". The film was said to contain "explicit and graphic depictions of violence" and "sexually explicit and assaultive language". The Censorship Board was of the opinion that the bloody violence depicted in the film was "frighteningly realistic, visually and conceptually impactful and at times relished". The language, the Censorship Board felt, was "augmented by its rapid delivery, excessive volume and by its being occasionally combined with physical and psychological torment". In its request for review of the "R" classification by the Review Board, the applicant sought the reclassification of the film for mature audiences ("M"), meaning that it could be viewed by persons aged 15 years and over. The reasons given in the application for review sought to place a less gratuitous and more contextual face upon the language and violence noted by the Censorship Board. There was submitted with or at the time of application for review a letter from Mr. Kubrick, seeking also to put the violence and the language into a less arresting contextual light~. wa te a es Lomi ere te one ae ee see + The uncontested evidence before me asserts, and I accept, that the classification of this film as "M" rather than "R" would result in additional box office receipts in Australia of some two to three million dollars. This is because of what I am informed are public perceptions, unwillingness of certain theatre owners to present "R" films, and the fact that promotional trailers for "R" films can by law apparently only be shown when another "R" film is being exhibited. This limitation, coupled with the very few films with an "R" classification, means that there is what the evidence describes as a "severe inhibition" on the applicant's capacity to promote and publicise this f£1lm. This in turn requires that other more expensive promotional activity be substituted fox customary advertising in most cinema theatres. | ! Both the Censorship and the Review Boards use certain guidelines as an aid to their assessment of films and allocition of classifications. The guidelines currently operating give the following descriptions of f11ms suitable for "M" and "R" classifications: | MATURE (suitable for persons 15 years ant over) Material which is considered likely to, disturb, ham or offend those under the age of 15 years. While most adult themes may be dealt with, the degree of explicitness and exploitatizveness of treatment will determine what can be accommodated in this classification i ' Language: Crude language that 1s efcessive, assaultive or sexually explicit 1s pot acceptable Sex: Depictions of discretly implied sexual activity. i Violence: Depictions of realistic and sometimes bloody violence but not' if gratuitous, © exploitative, relished, cruel or unduly explicit. Other: Depictions of drug use if not advocatory. a, ae ono -f Pepa wre ee me ee pee ee torte ec ee The RESTRICTED (18 years and over ) Adult materlal which 1s considered likely to he possibly harmful to those under 18 years and possibly offensive to some sections of the adult community " Language: May be sexually explicit and/or assaultive Sex: Implied, obscured or simulated depictions of sexual activity; depictions of sexual violence only to the extent that they are discreet, not gratuitous and not exploitative. Violence: Explicit depictions of violence, but not detailed and gratuitous depictions of acts of considerable violence or cruelty. Other: Depictions of drug abuse if not advocatory. decision by the Review Board reached on 30 July 1987 and communicated on 3 August was relevantly as follows: The film deals graphically with the horrors of war, including sadistic training routines by US marines and the brutality and aggression inherently involved in war. In the scenes of battle depicted in the film, the "display of aggression was vivid, compelling and often shocking in its impact ...". The film emphasised both physical and verbal aggression. The majority considered that the aggression was nonetheless not gratuitous and the Board generally acknowledged that "a heavy emphasis on violence fits appropriately with the theme of war and ... 1ts atrocities". poe The film's language was felt by the majority of the Board to he "stronger and more assaultive than the language of similar war films ... in the recent past". Much of (the language) was sexually direct, explicit and offensive. For some members (which the context indicates to be a minority), the degree of ""assaultiveness of the language" was excessive, although relevant and appropriate to the context. For these members, this was itself sufficient to classify the film as "R". The majority (by three votes to two) was persuaded to the "R" category by what 1s described as "the accumulation of graphically displayed aggression and assaultive language". The application to the Review Board to reconvene for the purposes of reconsideration of the matter describes the request for a review as "unusual". It was based upon three matters: There was "new and relevant information" unavailable to the Review Board on 30 July ~ specifically, the recent censorship decisions on the film in both New Zealand and the United Kingdom. (The evidence before me establishes that there was discussion at the Review Board on 30 July of the fact that in the United States the classification given had permitted the film to be shown to any person but only to a person under 17 years if accompanied by parent or adult guardian. The - 2 ctreence ee ene classification also required or urged that parents learn more about the film before taking such young persons with them to see it.) (a) The effect of the decision in New Zealand was that, subject to the condition that all advertising carry the warning "Language and content may offend", the film could be seen by persons of any age provided only that children under 13 years were accompanied by a parent or guardian. By way of contrast, 1t was pointed out that the recent feature film "Platoon" dealing with a similar subject ina similar way had been classified in New Zealand for persons 16 years and over, and in Australia had been classified "M" (i.e. 15 years and over). (b) So far as concerns the United Kingdom, the applicant said, or revealed its understanding, that a majority of the British classification authority had voted for a decision to restrict display to people 15 years and over. The applicant in substance asked the Board to reconsider the film with "sufficient time to give a full and proper consideration to all the relevant material, arguments and possible options" and suggested by inference that it may not have done so earlier because of the applicant's request that the initial review be carried out urgently. 3. The applicant said that the Review Board had perhaps not considered, because no request was made or arguments put to it on behalf of the applicant that it do so, that the film might be classified "M", subject to the same condition as applied in New Zealand. About an hour and a half after the applicant's 6 August letter had been received, the respondent caused to be conveyed verbally to the applicant that he was not prepared to reconvene the Review Board on these or any grounds. In response to a request for written reasons for this refusal, the respondent supplied in his letter of 11 August the following information: 1. There was no need for further time to be taken because "every aspect" had been considered before the decision was taken, including "the possibility of imposing a special condition" of the kind suggested. Apparently, such a condition had been imposed on a recent film called "Heartbreak Ridge" which dealt with a similar subject matter. 2. The possibility of adding the special condition was considered inappropriate. The "R" classification was not given merely because of language but because of the accumulation of violence and language. 3. In the opinion of the respondent, the information concerning the treatment of the film in censorship terms overseas, "whilst interesting", would not in his judgment have made any difference to the Board's majority decision. The respondent revealed that the Board takes cognizance of overseas censorship decisions but ene aye ee myc ee at on = forms its judgments wholly independently in the ILight of Australian criteria and conditions. To the extent that it is relevant, there do not appear to me, and it was not suggested that there are, any distinctly Australian considerations applicable to this film to warrant classification on any different basis to comparable countries. The powers of this Court to intervene in a matter of this kind are very limited. Although the application for judicial review submitted for the purposes of urgent relief at the outset of these proceedings was subsequently amended before the hearing, I gave leave by consent for the filing of yet a further amended application on the morning of the hearing, 28 August 1987. It was agreed that the Court had jurisdiction to entertain this further amended application. The applicant based its claim for review upon the provisions of sections 5 and 6 of the ADJR Act. The grounds upon which this application therefore proceeded to trial were as follows: 1. The applicant was a person aggrieved by the decision of the Review Board refusing to disturb the Censorship Board's "R" classification as well as by the decision of the respondent to refuse a request for the Board to reconvene to consider the matter again. I did not understand this assertion to he seriously contested. It was clearly established. 2. The making of the 30 July decision by the Review Board was an improper exercise of the power conferred by the Customs Act within the meaning of section 5(1)(e) of the ADJR Act in that: -12- (a) the Revicw Board failed to take santo account as a relevant consideration the question of whether in its opinion the film was unsuitable for viewing by minors between the ages of 15 and 17 years (s. 5(2)(b)); and (b) the Review Board exercised 1ts discretionary power in accordance with the printed guidelines without regard to the merits of the particular case (s. 5(2)(f)). The applicant was denied natural justice in relation to the refusal to reconvene the Review Board for a further consideration of the matter (s. 5{1)(a)) because in relation to that decision: (a) the applicant was given no opportunity to present its "new" case to the Review Board "as a Board", either on the question of the reconvening or on the film's classification; (b) the Review Board itself was not given the opportunity of making a decision on either matter; and (c) there was not taken properly into account the matters set out in the applicant's letter of 6 August 1987. The decision not to reconvene was also an improper exercise of the power conferred by the Customs Act 1901 in that the matters set out in the applicant's letter of 6 August 1987, which were relevant considerations, were not taken into account contrary to s. 5(2)(b) of the ADJR Act. In substance, this ground tried to - owes a ges ee ers saprcsp ower tas Vee enee Senne eee: bring the application within section 5(1)(c)} of the ADJR Act in suggesting that the respondent did not have what the application described as "jurisdiction" to make this "decision". What it really meant was that Professor Sheehan as chairperson of the Review Board did not have the legal power or right to make the decision not to reconvene the Board and to refuse further consideration of the film's classification without prior consultation with other board members. 5. The respondent engaged in conduct in relation to the refusal to reconvene and reconsider, contrary to section 6 of the ADJR Act, in that (a) the applicant was denied natural justice because it was not given a full opportunity to present its case (s. 6(1)(a)); {b) all matters set out in the letter of 6 August 1987 were not taken into account (ss. 6(1)(e) and 6 (2)(b)); (ec) the procedures required by regulation 38 of the Regulations were not observed (s. 6(1)(b)). The applicant sought the setting aside of both the decision of 30 July and the refusal to reconsider of 7 August, and an order that the censorship classification be recommitted to the Review Board for further consideration. As I see the position, there 1s little practical distinction, on the facts of this matter, between the cases made under sections 5 and 6. This is because section 6 as expanded by section 3(5) refers to "conduct for the purpose of making a (relevant) decision" y me pete ee ee ee ey ee oe won ete aoe peepee \y were matron ancluding "the doing of any act or thing preparatory to the making of the decision ..." (see Gunaleela & Ors. v The Minister for Immigration & Ethnic Affairs & Ors., Full Court of the Federal Court of Australia unreported 21 August 1987 at 27-28; Lamb v Moss (1983) 49 ALR 533 at 558). For reasons which follow, I think this is more correctly a section 5 case but the same principles and analysis apply in either event. The applicant's challenge to the Review Board's decision of 30 July is not based on a claim that it was a decision no reasonable tribunal could have made (s. 5(2)}(g)}). Nor is there said to have been any breach of natural justice in connection with 1t. In other words, the attack on the decision is not at all based upon the unavailability or inappropriateness of the substance of the decision itself, still less on the procedure by which the decision was arrived at. For all the multiplicity of issues raised in the further amended application, it is simply an attack based first, on the failure of the Review Board to take unto account for decision the suitability of the film for viewing by a person between the ages of 15 and 17 years; and second, on the allegation that the members of the Review Board slavishly followed the guidelines and did not apply themselves to the merits of the particular case. In the absence of statutory prescription, the appropriate entitlements applying 1n a "relevant considerations" case were summarised 1n Minister for Aboriginal Affairs and Anor. v Peko-Wallsend Limited and Ors. (1986) 66 ALR 299. In statements since frequently followed in this Court, Mason J, as his Honour then was, expressed these entitlements as follows at 308: pete ert ner ae eee eee > oe cet eee eer "(A) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he 1s bound to take into account in making that decision (Sean Investments Pty Ltd v MacKellar (1981) 38 AIR 363 at 375; CRERDNZ Inc. v Governor-General (1981) 1 NZIR 172 at 183, 196-7; Ashby v Minister of Immgration (1981) 1 NZIR 222 at 225, 230, 232-3). (B) What factors a decision-maker 1s bound to consider in making the decision is detemnined by construction of the statute conferring the discretion. If the statute expressly states the considerations to he taken into account, 1t will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. .. In the context of judicial review on the ground of taking into account irrelevant considerations, this court has held that, where a statute confers a discretion which in 1ts terms 1s unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute, some implied limitation on the factors to which the decision- maker may legitimately have regard (see Rv Australian Broadcasting Tribunal; ex parte 2HD Pty. Ltd. (1979) 27 AIR 321. By analogy, where the ground of review 1s that a relevant consideration has not been taken into account and the discretion 1s unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he 1s bound to do so 1s to be found in the subject matter, scope and purpose of the Act. (C) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. It follows that, 1n the absence of any statutory indication of the weight to be given to various considerations, 1t is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power (Sean Investments Pty Ltd v Mackellar (1981) 38 ATR 363). I say "generally" because both principle and authority indicate that 1n some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable"." wwe eae cee ern ea wees ae es -Iywn weeps ie There is simply no evidence that the Review Board failed to address or take unto account whether the film was suitable for viewing by young people between the ages of 15 and 17 years. Indeed, if this assertion be true, there would be no explanation for the decision at all having regard to the fact that the Film Classification Act and the guidelines themselves, and the wording and basis of the decision of the Review Board, are all directed to that very determination. There would simply be no point in the Review Board even examining and reaching conclusions on the language and violence portrayed in the film, were it not for the carrying out of its duty to address whether such exposure and depictions are appropriate for minors. Although, of course, the Review Board had available to it all the options set forth in section 9(1) of the Film Classification Act, the decision on this film clearly came down to a simple question as to whether its exhibition ought to be restricted for adult viewing only, or whether it should be made available to all persons aged 15 years and over. In my opinion, far from the case being one where the administrative authority failed to take into account or address a relevant consideration, the suggested consideration seems to have been virtually the only matter, and was certainly the principal matter, to which attention was directed by the Review Board in this case. For these reasons, it is my view that this ground has not been made out for an order of review of the Review Board's decision of 30 July 1987. This attack on the decision fails. The second argument, it seems to me, is also answered by reference to the evidence. As has been seen, the guidelines set forth general principles upon which films will normally be classified "M" or "R". It is true that some of the words in the guidelines were used in the Review eer aes ct a re ee "3 ? an Gre Se ee anne Board's decision. However, no evidence, oather than the similarity of words, was adduced to suggest that the Review Board simply abdicated its responsibility to make an independent and, as 1t were, personal decision in the matter. As I observed during argument, if the words of the guidelines had not been adverted to in any particular respect, no doubt criticism would have been made that the decision was made otherwise than in accordance with known or accepted principles. In my opinion, this attack on the Review Board's decision is also without merit. The applicant gave much greater emphasis to its case arising out of the failure of the respondent ta reconvene the Board following upon its letter of 6 August 1987. It was not denied, and on the facts it is obvious, that the respondent himself made the decision - or engaged in the relevant conduct leading to the decision — not to reconvene or even to submit the letter to the other members of the Review Board. Indeed, the respondent submitted that he did not have the power to reconvene the Board and that the Board lacked the power to review its decision. The respondent pointed to regulation 39C and section 15(4) of the Film Classification Act as indicative of a lack of power in these respects. They provide: Regulation 39¢: "Subject to regulation 40 of these Regulations, the decision of the Board of Review on a matter 1s final." (Regulation 40 empowers the Minister to intervene. ) Section 15(4): "The appeal censor shall not revoke a classification or a decision unless the appeal censor 1s satisfied that 1t 1s proper to do so, having regard to the provisions of this Division relating to the classification of films." (The 'appeal censor' here 1s the Review Board.) I think it unlikely that these provisions or any other textual implication are available to prevent the Review Board reconsidering and, if thought appropriate, rescinding decisions already made, prior to gazettal when they actually take effect. The classification of films is obviously subjective and in this case the decision may very well he finely balanced. The fact that there were different classifications in comparable countries overseas, together with the close vote by the Review Board in this country, indicates that the decision could have gone either way. In such a circumstance, any fact may be capable of altering the decision. The circumstances calling for reconsideration may be rare but this legislation and the procedure to accompany it does not seem to me to indicate that the legislature had 1n mind categorising a decision, once taken, as completely and utterly inviolable from further consideration before it is finally executed. On the other hand, there does not seem to be, and the applicant did not argue that there was, any legislative or regulatory basis upon which the applicant can claim a statutory entitlement to a reconvening of the Review Board and a reconsideration of the decision on the basis of new evidence, even if, aS appears to he the case here, some or all of the new evidence was not in existence at the time of the original decision. All this means is that if there is an entitlement, it 1s one arising from the operation of the common law rules relating to natural justice viewed in the light of all the applicable statutory prescriptions. The Review Board is an administrative body consisting of part-time members who live in different parts of Australia. Bringing them together is no doubt costly. It is clearly not within the purview of the Board's obligations and duties to do natural justice to reconvene physically every time, or just because, an applicant for classification wate woe eee pricier meee thinks of a new argument or obtains some new evidence that was not presented before. Indeed, the prospect is conjured up of regular visitors to the Review Board, like this applicant, either tactically or through lack of preparation, withholding relevant material almost on an institutional basis for the purpose or with the result of bringing the work of the Review Board into hopeless and inefficient confusion, or of wearing its members down, and then asking for reconsiderations frequently between adverse first decisions and gazettals. There is no suggestion in this case that this applicant was so motivated or that it did not genuinely seek to place relevant and potentially vital evidence before the Review Board for the purpose of maximising its financial return from the exhibition of this film. Nor 1s physical reconvening the only available option. Although the regulations do not make provision for it, there was nothing to prevent the respondent as chairperson of this administrative authority consulting the other members of the authority by telephone, telex, telegram, facsimile transmission, courier or even mail, for their input into the matter. Even if the decision in this case went against the applicant, this respondent would still be able to do so. In view of the financial implications involved, the overseas classification results, the close vote here and the responsibility of public bodies te be as correct as possible in their decisions, he may very well have thought it appropriate to canvas the views of the other members even before now. If a Full Court or Court of Appeal was asked, before it published its decision, to reconvene to consider fresh evidence or arguments that had not previously been presented, the decision not to do so would hardly be taken by one member of the Court. When the members of the Court were considering the possibility of reconvening, they would undoubtedly reflect inter alia on whether the matters desired to be raised might affect the result of the case. This situation is similar and most court decisions do not involve the sums of money at stake here. However, the question to be addressed in terms of the ADJR Act is not whether some mechanism might have been available which the respondent could have adopted, but whether relevant natural justice provides this applicant with an entitlement to the adoption of that mechanism. Ever since Lord Denning's thesis, sitting as Master of the Rolls, in Schmidt & Anor. v Secretary of State for Home Affairs (1969) 2 Ch 149 at 170 that this brand of natural justice flows from what might have been the "legitimate expectation" of the allegedly unjustly treated party, there has been considerable judicial debate about the meaning and scope of the principle. Brennan J in Kioa (infra at 371) described it as "a seed which has grown luxuriantly in the literature of administrative law" allying himself with Barwick CJ's description of the term as 'imprecise' in Salemi v MacKellar (No. 2) (1977) 137 CLR 396 at 404. Davies J in Minister for Immigration & Ethnic Affairs v Haj-Ismail (1981-1982) 40 ALR 341 at 358 describes the expression as one that characterises the "circumstances which give rise to the application of the rules of natural justice if a decision is to be made contrary to that expectation". In FAI Insurances Limited v Winneke & Ors (1982) 41 ALR 1 at 54, Brennan J opted for the expression "special interests" as the criterion for the procedural fairness demanded. However, Brennan J's views were not those of the Court. In Kioa & Ors. v The Minister for Immigration and Ethnic Affairs & Anor. (1985) 62 ALR 321 at 330, Gibbs CJ adopts the comments of Mason J in FAI Insurances (supra) at 13: "The fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power [Twist _v Randwick Municipal Council (1976) 136 CLR 106 at 109 per Barwick CJ]. The application of the rules . extends to the exercise of a power which affects an interest or a privilege (Banks v Transport Regulation Board (Vic.) (1968) 119 CIR 222); or which deprives a person of a 'legitimate expectation' .. in c1lrcumstances where it would not be fair to deprive him of that expectation without a hearing. Salem v MacKellar (No.2) (1977) 137 CIR 396 at 419; Rv MacKellar; ex parte Ratu (1977) 14 ALR 317; Heatley v Tasmanian Racing & Gaming Commission (1977) 137 CLR 487 at 498-9." To Gibbs CJ, the expression 'legitimate expectation' means expectation': AC 629 at 636; cf Barwick CJ in Salemi (No. 2) supra at 404. Mason J (as his Honour then was), developing a 345): 'reasonable see Attorney-General of Hong Kong v Ng Yuen Shi (1983) 2 "It 1s a fundamental rule of the common law doctrine of Natural justice expressed 1n traditional tems that, generally speaking, when an order 1s to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he 1s entitled to know the case sought to be made against him and to be given an opportunity of replying to it: ... The reference to "right or interest" in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests. The reference to "legitimate expectation" makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest. .. (1t) extends to expectations which go beyond enforceable legal rights provided that they are reasonably based." similar theme, said (at Expanding on the nature of the 'expectation', Mason J went on: wee ye pom eee pene eet epee aoe EE 7 eee "The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision. In the view of some members of the court an Salem (No. 2) the "ammesty" constituted an example of such an undertaking. Alternatively, the expectation may arise from the very nature of the application, as it did in the case of the application for a renewal of a licence in FAI, or from the existence of a regular practice which the person affected can reasonably expect to continue: Council of Civil Service Unions v Minister for the Civil Service (1985) 1 AC 374 at 401. The expectation may be that a right, interest or privilege will be granted or renewed or that 1t will not be denied without an opportunity being given to the person affected to put his case." As has come to be expected of such a scholarly judicial personage, Kirby P ium MacRae & Ors. v Attorney General of NSW (NSW Court of Appeal, 24 June 1987, as yet unreported) gathers in addition some New Zealand, Canadian and United States cases in this area. My reading of these cases suggests no reason for doubting that the Kioa principles espoused by Mason J are not applicable to this case. As was also pointed out by Kirby P in Johns v Release on Licence Board & Ors. (NSW Court of Appeal, 7 May 1987, as yet unreported), Kioa decided that the question for determination is not whether natural justice applies, but what are the requirements in the circumstances of the particular case of the undoubted duty to act fairly (at 10 of the unreported judgment). In Sinnathamby v Minister for Immigration & Ethnic Affairs (1986) 66 ALR 502 at 506, Fox J applied Kioa thus: "The guideline 1s fairness; 1n general the party should have an opportunity of dealing in an appropriate way with matters with which he can reasonably be expected to be able to deal, and which might assist his or her case." Another expression of the relevant duty is to be found in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109 where Barwick CJ sald: "...'Fundamental and universal' rule at common law 1s that 'a statutory authority having power to affect the rights of a person 1s bound to hear him before exercising the power'." (See also Bread Manufacturers of NSW v Evans (1981) 56 ALJR 89 at 93.) Because the application of all these rules 1s so flexible, requiring fairness in a wide variety of circumstances, including the nature of the power exercised and the statutory provisions governing its exercise, these expressions require a decision in this case as to whether this commercial applicant was entitled to the opinion of the whole Review Board on its application for reconsideration. Included on the adverse side to the applicant are: (a) It had sought an urgent decision by the Review Board. Its review application sought a non urgent, comfortable, quiet review. (b) It was represented at the Review Board's viewing of the fiim by an acknowledged expert — perhaps the country's leading expert - in the field. She lacked no familiarity with either the subject matter, the decision-making powers of the Review Board, or the options available to her client and the Board. (c) It had ample opportunity at the hearing on 30 July to raise the question of overseas classification. As I have earlier pointed ae sa — (da) (e) (£) (g) out, the evidence establishes that there was some reference to the American position in the course of the hearing. The applicant also had the opportunity, should it have chosen to exercise it, to ask the Review Board to withhold a final decision until it was able to collect more information about the situation in New Zealand and the United Kingdom. It did not do so. The applicant is an experienced commercial operator in this field. It could have chosen to ask for a conditional "M" rating, similar to the United States decision of which 1t did know ox the New Zealand decision of which it did not. It did not do so, but the respondent says the Board considered and rejected this option in any event. In other words, the applicant made the choice - in true litigation it would be called a deliberate advised forensic choice - to seek the immediate decision of the Review Board without the additional options which were available to it. It is unusual to ask for - and presumably receive ~- a reconsideration. The applicant's admission of this fact gives rise to the inference that as a relatively frequent user of the Board's facilities and powers, the applicant's own previous experience and knowledge of the Review Board's practices suggested to it that all matters desired to be raised should be available at the original hearing. If they are not, the hearing should be delayed or adjourned. mee ae, eyes oe a -—— ~ On the other hand, the respondent's response to the applicant's request for a reconsideration was to purport to grant it, and then to determine the reconsideration himself, while actually asserting that it was not taking place at all. It was not his sole "judgment" which the applicant was seeking and to which it was entitled, but the judgment of the whole Review Board. It was the Review Board as a whole, not the respondent as its chairperson, who had to decide whether the overseas censorship decisions (which the respondent admitted were generally relevant to the Review Board's considerations) would "have made any difference" to its decision in this case. In the circumstances of this very intuitive and finely tuned matter, where the applicant had a very substantial financial interest in the outcome, the choice made by the respondent to determine the matter alone denied to the applicant that degree of procedural fairness which the Act, as currently interpreted, provides in cases such as this. As I read the authorities, the purpose of the ADJR Act is to ensure that decision-making and conduct of administrative authorities are as fair as possible and that members of the public submitting themselves to administrative action receive decisions which are as correct and justifiable as can be achieved. It 1s true that the process requires a balancing of possibly competing public interests and that a review should not be granted for insignificant, pettifogging or pedantic reasons. But, as I have already pointed out, this is not such a case. It is fundamental to the ADJR Act and our system of justice that relevant decisions be made by the authority empowered by the appropriate enactment (including regulations) to make them. The decision not to reconsider, or more precisely, the decision not to submit for the opinion of the members of the Review Board the application to reconsider and the new evidence said to support 1t, deprived the applicant of an opportunity, which it might reasonably have expected, for a full and fair - albeit further - determination of 1ts request for an "°M" classification of this film, with or without conditions. This represents a ground for judicial review under section 5(1)(a) of the ADJR Act entitling the applicant to an order for review. Having identified a relevant error of law, I must finally consider whether 1n all the circumstances, I should grant an order of review in the exercise of the statutory discretion provided by the ADJR Act. As I have said earlier, the respondent's was not a technical breach of the duty to act fairly. There was and is every chance that upon reconsideration, at least one member of the previous majority will change her/his vote - that is, one member net of any other changes - so as to constitute a majority in favour of an "M" classification. I have referred earlier to the financial consequences of a_ change of classification. But the consequences are not merely financial. There may also be significant public repercussions — for example, in the humber and age of people assisted by the film to form views about war in general and the Vietnam war in particular; and the degree and extent of occupancy of the cinema theatres where the film will be shown may also be affected. Opposed to the exercise of the discretion seem to be no factors which can legitimately be called in aid. The respondent's argument that all the Court's intervention can achieve is the reconsideration of the decision by the whole Review Board, seems to miss the point that that is what judicial review is about. I think the applicant is entitled to the exercise of my discretion in its favour. wee yen sets I therefore quash the decision of the respondent not to permit the Review Board to reconsider its decision of 36 July 1987 and order that the Review Board review and reconsider the classification of "Full Metal Jacket" in light of the application of 6 August 1987. The respondent is to pay the applicant's costs. Counsel for the Counsel for the Date of Date of and Solicitors Applicant and Solicitors Respondent Hearing Judgment D.F. Rofe, QC with D.K. Catterns instructed by Malcolm Johns & Company B.T. Sully, QC with G.S. Hosking instructed by Australian Government Solicitor 28 August 1987 9 October 1987 Bc mee eens ree -