Foundations of Australian Law – June 2004
Part A – Mark 70
Note all references here to sections are those in the Acts Interpretation Act 1901 unless otherwise specified.
The Classification Act (CA) 2004 does not state as to when it comes into force. s5(1A) states that an Act comes into force on the 28th day after the day on which the Act receives the royal assent unless the contrary intention appears in the Act. Thus the CA came into force the 6th May 2004.
Retrospectivity does not seem an issue here [But Susie Smit issue?]. My interpretative approach is dictated by the provisions of s15AA which requires giving a construction to a provision that would promote [advance further?] the purpose or object underlying the Act.
The major issue to keep in mind when interpreting legislation is what the actual or imputed intention of Parliament (P) is (Project Blue Sky) and more specifically whether the relevant conduct the sort of thing that the P intended to deal with under this legislation. In determining the purpose, regard must be had to “language of the relevant provision and the scope of the whole statute (Tasker v Fullwood).
The purpose of the CA under s2 is to provide the classification of films and computer games to inform the public about products containing offensive, violent or sexually explicit material.
We will now discuss in turn the potential liabilities of TransMit (T) under this Act.
I/Will T be liable under s8 if it releases the game to the public without classification?
For T to be liable under s8 it is necessary to show that all the elements of the offence are made out:
- Is releasing a game free of charge amounts to circulate it for commercial game?
There is a fundamental principle of interpretation that a provision should be read in context (Metropolitan Gas).
-The plain and ordinary meaning of the word “circulate” (King-Ansell v Police) is to move around freely. In this case, making something available seems to fit with releasing a game freely.
-The maxim of interpretation ejusdem generis can also be used (Quazi v Quazi): where the words of particular meaning are followed by words of a general meaning, the general words are limited by the specific words. “Or otherwise circulate for commercial gain” is interpreted ejusdem generis with the specific words “distribute, sell, hire, expose for sale or hire”. The common genus seems to be making something available to the public in order to make a profit. Prima facie, the release of the game was free of charge thus no direct commercial benefit. However, T expects to profit from the sale of the T9000 phone itself.
Thus, likely that this element is made out.
[Does this ordinary meaning seem consistent with the Act’s purpose?]
- Is a form of mobile phone game amounts to a computer game?
-Under s3 Definition of the CA a computer game means (ie closed definition) a computer program and any associated data capable of generating a display on a computer monitor, television screen, or similar device that allows the planning of an interactive game.
-From an ordinary and plain meaning of computer program and any associated data capable of generating a display, it seems that a mobile phone game can be considered as a computer game. Indeed, there is no doubt that there is a computer program inside a game. Furthermore, the game is displayed in an extra-large viewing screen. By using the maxim noscitur a sociis (R v Ann) clearly “or similar device” such as a mobile phone with a large viewing screen is covered under this section.
[But you’ve not checked this ordinary meaning against Act’s purpose. Turn to extrinsic materials to confirm meaning?]
- …that has not been classified?
The facts tell us that T has not sought classification under the Act. And it is likely that P intends to cover such conduct of releasing that kind of game.
Under s15AB(1)(a) it is possible to use extrinsic materials to confirm the meaning of the provision.
It appears from statement of members [are the statements both equally weighty?] of the HR [?] that the purpose of classification is crucially to limit the access to offensive, violent or sexually explicit material. Here, the game released will be the Adventures of Parry Hotter containing fierce battle and other action scenes. Furthermore, the focus is not to specific device (film, video games) but is on the [capacity to keep pace with] technological change.
Likely to be made out if T seeks no classification.
II/Is T liable under s8 for distributing the game to Susie Smit without a classification?
- Distributing
Distributing a game is expressly covered by s8 thus no difficulty.
[But is it “for commercial gain” here?]
- to a child
The purpose of the Act is clearly to limit access of a certain product containing offensive, violent or sexually explicit material not to the public at large but especially to children. The purpose of classification is to protect the children from those kind of products (also young adults).
[But is there any reason to think the Act doesn’t cover distribution to children? Are you focussing on the fact that only one child is here receiving? It’s not clear].
The second reading speech (ie extrinsic materials used under s15AB(1)(a) to confirm purpose of P) clearly express the view that this legislation is to protect children but also young adults (ie extrinsic material from Ms Whithouse) from moral degradation through advances in technology.
Clearly, T is likely to be liable as it had distributed game to a child without first seeking classification.
[Retrospectivity issue, if SS received game before 6 May 2004?]
III/Is T liable under s8 for making television advertisements?
- Is placing a series of advertisements on national television amounts to circulating them for commercial gain?
As previously discussed, it seems that the intention of P was to cover all positive conducts that is making some product available to the public in order to make profit.
Clearly, making advertisement is for profit only by trying to make viewers buy the product. It must be noted that the presumption that penal provisions (which clearly s8 is) are strictly construed (Beckwith v R) is applicable in determining whether T is liable under I, II, and III. However, as this presumption is very week (“one of last resort”), the preference is given to the interpretation that is consistent with the purpose of the Act (ie here a broader interpretation of the elements set out under s8).
[But who’s doing the distribution here? TransMit or TV Co?]
- Is an advertisement on television a film?
The definition s3 states that a film includes (open definition) a motion picture film, video tape and any other form of recording from which a visual image can be produced, but does not include a computer game.
By interpreting ejusdem generis, it appears that the common genus is any kind of device that produces a visual image. Furthermore, the definition is open and thus can be interpreted broadly to cover advertisement on television.
[But ejusdem generis is invoked to limit words of general importance. You’ve just restated the terms of the provision and your suggested genus is not a limiting one].
In addition, it is possible to rely on previous judicial interpretation for the purpose of interpreting in context. It was held in August 2002 by the High Court in Packer v A-Gthat a “film” includes television advertisements promoting products which clearly cover this situation (ie advertisement on TV promoting the game).
[But this case must have concerned different legislation given it’s date, so how relevantis it?]
Since no classification, likely that T will be liable under s8.
[You’ve produced a solid answer here in which you’ve spotted most key issues amd organised your analysis clearly and sensibly. At few points though, you’ve applied principles imprecisely or incompletely].
Part B – 70
Q3
International law is a body of law which participating nations recognise as binding them in their conduct towards each other. International law is mainly constituted by international treaties and customary international law. However, the provisions of international law do not bind Australia automatically as Australia is a dualist system. These provisions have no local effect unless they are implemented by statute. Even though not automatically binding, international law (IL) is of great influence to Australian domestic law.
Australian courts can resolve ambiguities in domestic legislation by for example interpreting it in conformity with international treaties whenever possible (Chen v Minister for Immigration and Ethnic Affairs No.2). The High Court also interprets the Commonwealth Constitution by reference to international treaties and customary law (Kartinyeri).
[This remains questionable. Kirby J is of that opinion].
However, the most notable decision where the High Court clearly expressed its attachment to IL was Mabo v Qld (No2). The HC held that in light of changed notions about human rights opposed to racial discrimination, it was appropriate to change the old common law rule in relation to radical title of the Crown. By recognising that de facto Australia was not terra nullius, the HC recognised the validity of the customary native title to land.
These cases clearly show that IL is of great influence not only to legislation (domestic) but also to case law (common law).
[A solid effort].
Q5
One cannot truly understand the meaning nor the importance of equity is one does not look back at the common law history. Indeed, equity’s body of rules developed for the major reason that it was necessary to remedy the injustice suffered at the hands of the common law courts.
At first, the common law was relatively informal and also a speedy means of dispute resolution. Overtime, it became procedurally complex and was also very slow. The legal process became costly and due to the rigidities of the unit system, the litigants were dissatisfied.
Common law became unpopular and people started to approach the King who soon began to delegate responsibility to the Chancellor in the 14th century. The reason behind the growing popularity of the Chancellor’s jurisdiction was the fact that Chancellors did not, as the common law judges did, base their judgments on the accumulated body of judicial precedent but on Christian precepts of justice. It should be remembered that Chancellors were trained as priests and studied the canon law. This body of rules was then called “equity” and have th primacy objective of tempering the harshness of the law.
One of the bases of equity’s popularity was its discretionary system of justice. The Chancellor retained discretion not to grant a requested remedy (ie under the common law) if the plaintiff was not morally deserving.
The development of equity was crucial to temper the obsession that the common law had with procedure.
[You might mention maxims. Still important today?]