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Tuesday, 29 May 1984
Page: 2073


Senator GARETH EVANS (Attorney-General)(10.15) —I congratulate the Senate Standing Committee on Regulations and Ordinances for the balanced and moderate tone of the main report, especially the part of it dealing with the legal effect of existing and proposed changes to Customs regulations and Australian Capital Territory ordinances. I have no quarrel with the judgments there set out about the legal effect of the legislation there dealt with. It is clear that the Committee took a great deal of effort to maintain that tone, as we rather predicted it would, when opposing the reference to the Committee in the first place. That certainly emerges from the terms of the dissenting report which, in addressing the particular question of legislation being more appropriate to be enacted as an Act of the Parliament rather than by way of regulation, does plunge headlong into the very policy judgments which the majority of the Committee thought it the business of the Committee to avoid.

I accept that it is possible for reasonable men and women to have different viewpoints on whether the matters in issue here should best or more appropriately be dealt with by Acts of Parliament as distinct from regulations. In the past I have wrestled with that particular question so far as it substantively affects Australian Capital Territory ordinances; but here I simply indicate for the record that I prefer the majority report for the reasons that are there set out. There has, after all, been no shortage of parliamentary deliberation on this matter, including parliamentary deliberation directed quite specifically to particular questions of language as they have arisen in these regulations.

I turn now to the merits of the disallowance argument. I think it important to put the debate in context and to remind the Senate of four threshold considerations that have been crucial in the Government's approach to this particular legislative package. In the first place, what we have done has been consistent with decisions of the ministerial council, the representatives of all governments around Australia responsible for censorship matters. It has not represented some flight of unilateral Commonwealth libertarian fancy; it has been the product of very anguished and extensive debate in that forum. It is the case that getting complete uniformity in censorship administration in this country will be a long and slow process, and in fact, I guess is likely never to be wholly achieved. It is the case that Queensland and Tasmania and to a lesser extent Western Australia have indicated reservations about the X-rated aspect of the system. But they are all happy enough to participate in the general administration of the system. They are all happy enough to have the operation of a system of compulsory classification, perhaps with some reservations again in the case of Western Australia, as to whether that is strictly necessary. They are happy for the basic standards to be applied in respect to each of those categories of classification. It is just that some of those States want to try to draw the line in different locations than others. It has ever been thus, as Senator Durack will recall, in the area of literature censorship-


Senator Durack —But you were going to have a new dawn of uniformity.


Senator GARETH EVANS —Well, we are getting there, Senator. Your cynicism and churlishness are not going to help us get there any quicker. We did not exactly rush to the tape when the honourable senator was administering this portfolio. We are doing our best to get there now.

The second background point I make is this: We have acted in accordance with the basic principle-it has been a bipartisan principle for the last decade or more and it would be an unhappy state of affairs were there to be a major resiling from this-that adults should be entitled to see and read what they wish , subject only to not being involuntarily exposed to offensive matter or matter which they would find offensive and subject also to whatever is necessary to protect children particularly from exploitation.

The third basic consideration we have had in mind is that laws in this area should reflect so far as possible the attitudes that are actually applying and prevailing out there in the community. One does write a blueprint for the disregard and the disrepute of the law if one enacts laws which are unenforceable, if one tries to enforce rules which are simply not reflected or accepted in the community at large. Whether one likes it or not, whether one finds this material distasteful or repugnant or not, there is very substantial support still, very visibly in the community, albeit not from other sectors of the community which have mounted vociferous campaigns, for continued access to R -rated and X-rated material which many of us in this chamber would intensely dislike. I think we just have to acknowledge that particular reality. That is the environment in which we are legislating; it is not an entirely clean page.

Finally, it is important-and this has also been involved in our whole approach to this-that the administration of the law should, so far as humanly possible, be in accordance with the substantive letter of the law itself; that one should not operate in some twilight zone of discretions where the actual practical administration of the law is very far removed from the text of the law. I promised not to talk about the Mahony report, and I will not. But that was the situation that was being addressed by those who worried about the state of Customs administration and the gap that it opened up between, on the face of it, the all embracing language of the previous regulation 4A and the reality of what was enforceable on the ground and what was required to be enforced by successive executive governments, acknowledging the realities of enforcement at the Customs barrier.

Moving quickly to the basic elements in the package as they have emerged, both the existing regulations and those which we propose to have in place quite soon and which we will be putting to the Executive Council later this week, the proposed extras extend to those additions to the Customs (Prohibited Imports) Regulations which have been circulated and which are designed in part to accommodate the valid point that Senator Harradine made about the hiatus which had emerged so far as the treatment of drug inciting publications were concerned . So far as the Australian Capital Territory is concerned, of course, it is proposed, and honourable senators have been circulated with material, to have in place within, now, a couple of days further amendments to that ordinance which will in fact make the system of classification which is applicable for videos compulsory rather than voluntary. Might I add as a footnote that the Australian Capital Territory House of Assembly tonight in Canberra endorsed the proposal for compulsory classification, considering the draft amendment that had been submitted to it for comment. It also endorsed the package of legislation, which was favourably reported upon by a committee of the House of Assembly, and rejected an amendment to delete the X category from the operation of that package of law in the Australian Capital Territory. So, to the extent that it has been possible to tap the representatives of community opinion such as they presently exist in the Australian Capital Territory through the institutions of the Australian Capital Territory, we have done that and received that kind of reaction.

The basic elements in the package fall into two categories-first of all the revision of the import rules and, secondly, the point of sale controls that are to operate internally. As to the import rules and the new amendments to regulation 4A that are contained in the regulations we are looking at tonight and those further amendments which have been circulated for honourable senators' attention, the object here, of course, was to replace the previous open-ended language of regulation 4A, unenforceable and unenforced in its strict literal terms as that legislation was, with five now closely defined categories of description of material which is to be banned absolutely, barred absolutely, at the barrier. Those five categories, as honourable senators will recall from the material that has been circulated, are: Firstly, material relating to child pornography; secondly, material depicting in pictorial form bestiality in a manner likely to cause offence to a reasonable adult person-Leda and the Swan need to escape Customs attention presumably but there are other categories which are not so elevated; thirdly, and this has been an attempt to import into the law language which has been the subject of considerable discussion in and out of this chamber, material which 'contains detailed and gratuituous depictions in pictorial form of acts of considerable violence or cruelty or explicit and gratuituous depictions in pictorial form of sexual violence against non- consenting persons'-language, I might add, which was canvassed with the women's advisors to every government in the country including that of Queensland, Tasmania and Western Australia at a meeting I attended two weeks ago and which was warmly supported by that meeting of women's advisors to all governments as appropriately reflecting matters of particular concern to that group; fourthly, material promoting or inciting terrorism; and finally, material promoting or inciting the misuse of a drug specified in the Fourth Schedule. There is a pretty open-ended list of drugs in the Fourth Schedule.

So what we have is a quite precise description of unconscionable material of a kind which ought not to be allowed into the country at all. The argument is that it is better for the purposes of practical law enforcement and administration to hone in on those things which are capable of detailed barrier control in that way and not to have legislative provisions which, however emotionally satisfying it might be to have the field covered in that open-ended way, were simply not capable of realistic and sensible on the ground administration.


Senator Harradine —Why not, when with proper guidelines you could have done it?


Senator GARETH EVANS —That would be to take us into the area of executive discretion which the honourable senator, on numerous occasions, has indicated he is unhappy with and it would offend the principle which I sought to articulate earlier on and which I think would be generally accepted by honourable senators, that so far as is practicable and possible the law should reflect on the ground the text of the law rather than some narrow executive discretionary application of it.

The other side of the coin so far as the package of material is concerned is, of course, the domestic point of sale and point of hire controls of the kind that are embodied in the Australian Capital Territory Classification of Publications Ordinance. The reality is that before the 1983 ordinance was promulgated there were no point of sale controls in the Australian Capital Territory at all. There was no classification system which operated as such. There was no practical limitation on what was sold in the Australian Capital Territory. There was, as a result, a considerable flood of video material being sold without any practical restrictions and there was certainly no inhibitation on the selling of literature. The only constraint was under the 1958 ordinance which had broad obscenity prohibitions, emotionally satisfying again maybe but not workable because they contained within themselves no clear guidelines for their application. There was no way, for example, the police could enforce the kind of distinctions that the present ordinace enables them to enforce, namely to enable the sale of R related type material to adults but not to minors. Under the broad brush approach of the old obscenity law it was either caught by the obscenity provisions or it was not. One could not have that detailed, sensitive, selective, flexible, sliding point of sale control which is of the essence of sensible administration in a censorship regulation system which respects the principle of allowing adults the right to see and read what they want subject to not being offended by material involuntarily confronting them and subject to protections for children. It is just those sorts of detailed controls that one needs to be able to implement those principles and that is what this Australian Capital Territory ordinance seeks to do, which some honourable senators in this place would want to disallow completely and create a vacuum.

There will be consumer guidance with the new legislation. There will be penalties for those who wrongly label material. There will be penalties for those who sell or hire restricted or objectionable material to kids, and so there ought to be. There will be penalties for those who display that kind of objectionable material involuntarily exposing all members of the community to it and so there ought to be. That is what this legislation is all about. This is the kind of legislation we are trying to adopt all round the country.

Debate interrupted.