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Tuesday, 29 May 1984
Page: 2061

Senator LEWIS(9.03) —I also wish to speak on the report of the Senate Standing Committee on Regulations and Ordinances. It is a special report. With all due respect to the Chairman of that Committee, I cannot agree that the Senate ought not in the future to refer to the Committee references such as this one.

Senator Coates —I said in such an ad hoc way. I do not mind it reviewing our terms.

Senator LEWIS —I see. I misunderstood my Chairman. Apparently his objection is to the so-called ad hoc way it was done in the Senate. This particular reference has assisted the Committee considerably along the track of determining recommendations which the Committee should make in the future about when the Committee ought to report that matters should be dealt with by substantive legislation rather than by way or regulation and ordinance. Certainly, the Committe has been under extreme pressure to produce its report in the time which the Senate needed, as a result of the problems with disallowance motions. Nevertheless, I think the exercise has been excellent. I congratulate the Senate Committee's staff, in particular the Secretary, Dr Uhr, the Senate's legal adviser, Professor Whalan, and the other staff, advisers and typists, who have been involved in the almost indecent haste necessary in order to produce this report. They have certainly done an excellent job-the sort of job that I suppose we are now getting used to in the Senate with the marvellous staff who service us.

By way of explanation of the report, the first 13 pages contain the report, first of the whole Committee and, secondly, of the majority of the Committee. In other words, the first eight pages of the report, down to paragraph 16, contain the unanimous recommendation of the Committee. It is in those paragraphs that the comparison is made between what the Committee describes as the pre-existing legislation-that is what I call legislation which was in place prior to 1 February 1984 but which it should be appreciated is legislation by way of delegated legislation-and what the Committee has defined as the new legislation which was introduced by this Government on 1 February 1984. These were also the draft regulations and an ordinance which the Attorney-General (Senator Gareth Evans), having foreshadowed them in the Senate prior to the adjournment of the Senate after the last period of sittings, circulated to all honourable senators during the recent break. The Committee then considered those draft regulations in its report. Those first 16 paragraphs make comparisons of the legislation. On page 8 we have what is described as consideration of the question:

(3) That the Committee advise the Senate whether, in the light of this examination, the Regulations or Ordinance contain matter more appropriate for parliamentary enactment or revised delegated legislation.

The majority report, signed by the Chairman, I presume on behalf of Senators Cook, Richardson, Tate and Zakharov, continues through to page 13, paragraph 25. The dissenting report then follows, from page 14 to an unnumbered page, for some 23 paragraphs. That dissenting report is signed by Senator Archer, Senator Sir John Carrick, Senator Harradine and myself. So the Committee was divided about this very vexed and difficult question of how far the Government should be allowed to introduce into the Parliament very complex laws, new legislation, by way of regulations and an ordinance.

I openly acknowledge that I have had great difficulty in coming to a decision on this matter. I am aware of the history of the Committee and I can assure the Senate that I did my best to come up with a report which was unanimous in all aspects, but ultimately I had to come down with a recommendation that the matters contained in the new law and in the draft regulations and ordinance submitted by the Attorney-General should be the subject of parliamentary enactment. There comes a point beyond which the Parliament surely must stand up and say, 'This law and these proposals are such that the whole Parliament ought to be given the opportunity to consider them by way of an Act of Parliament', instead of using the convoluted back-door way we have of considering delegated legislation, thanks to the existence of a Senate committee and the Standing Orders of the Senate. Honourable senators will be able to read the dissenting report and see expressed the reasons why I came to that decision.

There is no doubt that these proposals are of enormous consequence to the people of Australia, and the other place ought to be given an opportunity to consider them. We ought to be given the opportunity to consider amendments and votes ought to be able to be taken on questions of alteration by way of amendment. We cannot do that with regulations. I know that we have changed the rules so that not only can we disallow a whole ordinance but also part of an ordinance. Although that is a considerable advance on our previous system, it still does not overcome the problem of how one alters an ordinance which one believes is wrong. I draw attention to the complaints of a former Chairman and Deputy Chairman of the Senate Standing Committee on Regulations and Ordinances, Senator Cavanagh. He used to complain bitterly, for example, about my Government -and, I might add, his own Government-introducing a schedule which varied workers compensation entitlements or accident entitlements by way of regulation. He constantly pointed out to the Senate that that meant that if we disagreed with, say, an assessment of $50,000 for the loss of a leg, we were placed in an impossible situation. All we could do was to disallow the whole ordinance, which would mean that no amount would be allowable for any of the matters listed in the schedule, or disallow that part of it so that a person who lost a leg would not be entitled to anything, although the whole of the Parliament might be of the view that the amount ought to be increased. Because it is done by way of regulation, the Parliament is unable to act in its proper role, which is a legislative role. That is the situation we are confronted with today.

It must be conceded even by the Attorney-General, I think, that these proposals have been subject to enormous criticism. The Attorney-General has already introduced many pages of proposed amendments to the ordinance. Clearly, the Attorney-General would acknowledge that he has great difficulty in finding a form of words which satisfies all the requirements in this matter. Yet the Parliament will not be given an opportunity to express its views on this matter by way of amendments which could be properly put and debated, considered and then voted upon. I submit to the Senate that that is why these laws ought to be disallowed and ought to be the subject of parliamentary enactment.

In the last four paragraphs of the dissenting report we point out to the Senate the enormous difficulty with which the Senate is confronted by being put in a position where, at around 9 o'clock at night, it must properly debate this matter and come to a conclusion because today is the last day upon which this matter can be dealt with, thanks to the Standing Orders. So the Senate is placed in a position where it has to apply its mind to these enormously complex matters -

Senator Gareth Evans —It has had a fair bit of practice on this one.

Senator LEWIS —I hear the Attorney-General say that we have had a fair bit of practice on it. Let me assure the Attorney-General that every member of that Senate Committee, all eight of us, had to spend many hours reading and re- reading the pre-existing, the new and the proposed regulations and ordinances, and the reports, before we could grasp what was proposed. Even now, with all due respect, we will find that undoubtedly honourable senators will not really grasp the significance of all this. I gather from something that has been happening around me, from some of the laughter going on, that perhaps the Australian Democrats may have got the bull by whatever they get the bull by. It is a great pity that the Democrats did not have a member on this Committee.

Senator Walters —Why not? Read this and you will see why not. This is their news release. Now you will know why not.

Senator LEWIS —I have not had a chance to read the news release. Everybody in the Senate apparently has had the chance to read it, but I have been on my feet ever since it was distributed around the chamber. I cannot read it while I am on my feet.

Senators Walters —Here you are, read it out.

Senator LEWIS —It has been suggested to me that I should read it out. It states:

The Australian Democrats Deputy Leader Senator Colin Mason today attacked the Liberal Party for its intention to vote on a customs regulation on X-rated videotapes, saying it represented a new low in political cynicism and dishonesty .

Good grief! The Committee spent hours worrying about this, trying to solve the problem, trying to come up with a form of words which is accurate. What is this nonsense that the Democrats have come out with? Fair dinkum, one would not believe that Senator Mason represented the State of New South Wales. The Press release goes on:

'I have been told the Liberals will vote for disallowance of a regulation controlling the entry into Australia of the filthiest and most violent pornography imaginable,' Senator Mason said.

What on earth is he talking about? It is unbelievable that he should behave in this way. I point out that I am not a Catholic and never have been a Catholic. I am an Anglican. Nevertheless, I was very impressed by some material which was provided to the Committee by the Catholic Bishops of Australia. The material was headed as a submission. Of course, the Committee did not receive submissions. It did not advertise for submissions so the material was not received as a submission. It was received as correspondence because anyone is entitled to write to the Senate Committee. The submission is of five and a half pages and a supplementary submission received subsequently by the Committee is of one page. I seek leave to have both documents incorporated in Hansard.

Leave granted.

The documents read as follows-


The Catholic Bishops of Australia welcome the opportunity to make a submission to the Standing Committee on Regulations and Ordinances in relation to the reference to that Committee of the Customs (Prohibited Imports) Regulations ( Amendment) as contained in Statutory Rules 1983 No. 331 and associated Regulations made under the Customs Act and the Classification of Publications Ordinance 1983 of the Australian Capital Territory and the Regulations made under that Ordinance. All of these Regulations and the Ordinance are in this submission called compendiously ''the relevant Delegated Legislation''.

This Submission is divided into two parts. Part 1 deals with the substantive effect on the previously existing law of the making of the relevant Delegated legislation. Part 2 deals with matters that are more directly relevant to the principles adopted by the Committee to guide the Committee's operations.

Part I

The Catholic Bishops of Australia have for some time been greatly troubled by the moral standard of much of the literature, the films and the video tapes that appear to be freely available in Australia.

The general issue of the distribution of pornographic and other objectionable material has been debated in the Senate of the Australian Parliament and the debate continues. The occasion for the debate was a series of motions for the disallowance of the relevant Delegated Legislation.

It seems now to be generally agreed that much of the relevant Delegated Legislation in the form in which it came into operation on 1 February 1984 was not satisfactory and remains unsatisfactory. By reason of the operation of the relevant Delegated Legislation-

(a) A person is free to import any film, video tape or video disc, notwithstanding that it deals with matters of sex, drugs, crime, cruelty, or revolting phenomena in a manner that is likely to cause offence to a reasonable adult person so long as it does not depict child pornography, encourage terrorism or gratuitously depict violence or cruelty.

(b) A person is free to deal commercially with material of this character whether imported or locally produced so long as it has been given a classification rating by the Censorship Board-classification ratings being provided for soft pornography (rating R) and hard-core pornography (rating X).

(c) Persons in the Australian Capital Territory who deal commercially or otherwise with hard-core pornography that has been classified will no longer be able to be prosecuted for the common law offences of obscene libel or conspiracy to corrupt public morals because those offences are abolished to the extent to which they apply to material that has been given a classification rating.

(d) Films and video tapes and discs depicting unnatural sexual behaviour, even bestiality, could be accorded a classification rating. Whether they would or would not be classified is within the discretion of the Censorship Board.

6. We believe that the production and distribution of pornographic material or material depicting gratuitous violence or cruelty always involves grave moral danger especially for young people. In common with all those who have expressed views on the subject in the Parliament (including Ministers), we believe that some form of censorship must be exercised; the debate is about where the line should be drawn.

7. It is our clear view that the law should prohibit the importation, production, possession or distribution of all objectionable publications. In this context, we would define an objectionable publication as a book, magazine, film, video tape or the like that depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorent phenomena in a manner that is likely to cause offence to a reasonable adult person.

8. We believe that the ready availability in perhaps a majority of Australian homes of video equipment poses a particular danger to the moral wellbeing of children-a danger that demands the making and enforcement of effective laws to control the importation, production, possession and distribution of objectionable video tapes and discs.

9. Whilst it is possible for conscientious parents to exercise supervision over the attendance of children at places of public entertainment, it is virtually impossible for parents to exercise any censorship over what children may see on home video equipment. A youngster who is at the home of friends may be shown video films of the most objectionable kind to which his or her parents may have the strongest objections.

There is an urgent need for effective legislation to control the flood of highly objectionable videos that is pouring into the Australian market. No legislation has any real prospect of being effective unless it seeks to apply controls at the point of production or importation as well as at the point of distribution.

11. None of those who have spoken on the subject in the Parliament claims any personal interest in hard-core pornography. If these people fairly represent the Australian community, there is no reason why hard-core pornography should not be banned by law. The danger that it represents to the young and impressionable is very great and the protection of the young is of the first importance. We believe that the relevant Delegated Legislation should be recommended for disallowance by this Committee and should be disallowed by the Senate; that the pre-existing law which would be revived by its disallowance should be enforced; and that urgent consideration should be given to devising an effective scheme for controlling the importation and circulation of objectionable publications generally-but particularly of objectionable video tapes and discs.

12. We acknowledge that uniformity of the law on this subject throughout Australia may be desirable. But uniform laws are desirable only if they are good laws. The laws now before this Committee and the Senate are wholly unsuitable models for other legislatures.

Part 2

13. Applying the Principles that have been adopted by the Committee to the relevant Delegated Legislation, we make the following submissions:

(a) The relevant Delegated Legislation gave effect to major policy changes in the area of censorship. Those policy changes are of such great importance to the whole community that they should remain the direct responsibility of the Parliament itself and its elected members. It is not appropriate for those changes to be given effect to by delegated legislation of the Executive Government. In particular, the decisions (i) to end control over the importation of films and videos, other than films and videos for public exhibition (Customs (Cinemetograph Films) Regulations); (ii) to permit commercial dealing for profit in hard core pornography (Classification of Publications Ordinance), are of such major importance that they should not be given effect to except by direct parliamentary enactment.

(b) The Customs (Prohibited Imports) Regulations, as amended by Statutory Rules 1983 No. 331 diminish the Government's pre-existing powers to prevent the importation of publications, including films and videos, that promote or encourage violence or the use of hard drugs or depict hard core pornography. They do so because the pre-existing rights of citizens to objective control over the importation of objectionable publications (see par. 7 above) is abolished and replaced by controls dependent upon subjective administrative decisions not subject to independent review of their merits. Under Regulation 4A the question whether the importation of publications or other goods of the kind described in the regulation is prohibited depends upon the opinion of the Attorney-General or a person authorized by him (Sub-regulation 4A (1A)). Under regulation 4A (1A) (b ), the test whether the importation of goods, other than publications, is prohibited is wholly uncertain in that it depends on the subjective views of the Attorney-General or a person authorized by him; the test for prohibition is whether the Attorney-General or an authorized person is of opinion that the goods to be imported are concerned with matters of sex, drugs, crime, cruelty etc. 'in a manner that is likely to cause offence to a reasonable adult person to the extent that they should not be imported' (emphasis added).

(c) The Classification of Publications Ordinance includes provisions with respect to the classification of publications films and advertising matter that correspond to the provisions referred to in the preceding sub-paragraph (b) above. In this connexion, see sections 19 (3), 25 (3), 28 (1) (a).

(d) The general dispensing power conferred on the Attorney-General by section 56 of the Classification of Publications Ordinance makes the rights of citizens dependent on administrative decisions not subject to effective review. The exercise of that power will diminish the pre-existing power to protect children from exposure to publications including videos that promote or encourage violence or the use of hard drugs or that depict hard core pornography.

14. We believe that amendments made by sub-regulation 7 (4) of Statutory Rules 1983 No. 332 are unwarranted. That sub-regulation gives the Chief Censor a casting vote in certain circumstances and thereby increases considerably the significance of regulation 40 of the Customs (Cinemetograph Films) Regulations. That regulation empowers the Attorney-General to direct that a matter arising under the regulations be submitted to him for determination and to give such directions as he thinks fit; the Chief Censor is required to take such action as is necessary to give effect to the directions.


Having reviewed the Submission sent to the Committee on 22 May 1984, we have noted that it does not refer specifically to the need to control the importation , production and distribution of material that is blasphemous. By this we mean material that ridicules or holds up to contempt the religious beliefs or convictions of people, whatever may be the nature of those religious beliefs.

2. It is our view, that there should be effective control over material of this kind. The distribution of blasphemous material involves discrimination which cannot be justified. Accordingly, we would slightly revise the definition of objectionable publications, which we set out in paragraph 7 of our original submission, by including in it specific reference to blasphemous material. The revised definition of ''objectionable material'' would include '' any book, magazine, film, video tape or the like-

(a) that depicts, expresses or otherwise deals with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorent behaviour in a manner that is likely to cause offence to a reasonable adult person; or

(b) that is blasphemous and is for that reason likely to cause offence to reasonable adult persons.'' (The revision of the original definition is underlined).

Senator LEWIS —I have put those documents in the Hansard because it seems to me that the Catholic bishops or whoever wrote their submission really applied their minds to these problems very well and expressed them clearly and far more succinctly than I could. The whole argument about these laws is where the line ought to be drawn. Even the Attorney-General apparently is now prepared to admit , to concede, that there is a question of where the line is to be drawn. I say that because he seems to be reluctant to concede that there is a question of drawing the line. He talked about 'giving effect to the policy of the freedom of adults to see, hear and read what they wish'; he then added 'but with specific prohibitions'. The Attorney-General and the Government have then drawn a line. The placement of the line is always difficult and will always be controversial I suppose as perceptions about the effect of publications on the community change. I get cross when the Attorney-General and Senator Mason, with all due respect to them, criticise other people in the community for endeavouring to place the line in a different position or in a different manner from the place where they believe the line ought to be drawn. I suggest to them that these matters are extremely difficult and that there are varying views.

I am particularly concerned about the report from a psychologist in Victoria about the effect of violence in the community arising from viewing films and video cassettes. Since the rising of this Senate, in other words in the last couple of weeks, just about the time when the Senate was getting up for its last two-week break, there was a case in Victoria where a young fellow sitting in a picture theatre asked three other young people if they would mind being quiet so that he could watch the show. After that show which, I gather, was an R rated film of considerable violence these three fellows followed him out, chased him down a lane and kicked him into unconsciousness. He was lucky to escape with his life. There is a report to the Attorney-General from a psychologist in Victoria which has been referred to in previous debates and there is the report of the United Kingdom Parliament about the growth of violence arising from these films.

I compare it to, say, cigarette smoking. If someone arrived on this planet at this stage and said he wanted to introduce us to a new thing called tobacco and that we roll it in a bit of paper, light one end of it and suck it into our mouths we would now, with the hindsight of 250 years of people coughing up their lungs as a result of doing just that very thing, tell him to take a running jump . How much hindsight will he have about the effect on people of viewing the sort of violence that is now being used for gain? There may be some artistic merit of some sort in some of these films, but far too frequently they are being produced for one specific purpose; that is, to arouse the violence and violent emotions and feelings within people in this community. It is clear that that is the whole purpose of these films. In other words, violence is being used for crass profit. It has nothing to do with artistic merit, it has to do with the ability to get people to pay money to go to see something or to take it home with them. This is a matter of grave concern to the community.

Let us look down the track. I do not know where it will lead but, glory be, we surely do not want to rush into the situation in which we allow this sort of stuff to come pouring into the country without any real control over it at this stage when these problems are being raised. I know that, of course, I will be called a wowser or the like because I am opposed to these progressive views which the Attorney-General would have us lumbered with, but I will be interested to see how he views these matters 20 years hence with perhaps a bit of maturity and a bit of wisdom. I will be interested to see what he feels and how much responsibility he is prepared to accept for the violence erupting in this community. As recently as 20 years ago people did not mind walking around the streets at night by themselves. It is now acknowledged that one is a fool to walk around the streets alone at night. Girls who are forced to work in an office until late at night now demand, and rightly so, a taxi to take them home for their protection. That has happened within 20 years. I just feel that we ought to be much more careful about where we place the line in regard to the importation of this material and its classification.

In regard to the placement of that line I refer honourable senators to the submission of the Catholic bishops of Australia. I believe that there is much merit in the words contained in that submission. I hope that as a result of this the Democrats, notwithstanding this nonsense that Senator Mason has apparently released, see the wisdom in saying to the Government: 'Bring in an Act of Parliament so that this matter can be considered over a proper period of time and proper and due amendments can be considered'. If we cannot persuade the Government to do that can we persuade the Government to withdraw the current regulations and replace them with the new draft regulations so that the Senate and, I hope, the House of Representatives, can be given some proper time to give the consideration to these laws that they deserve.