The Referral of Publications by the Courts
Article by Chief Censor, Bill Hastings
24.04.2005
In civil and criminal proceedings, it is sometimes necessary to determine whether or not a publication is objectionable. When this happens, the Court may refer the question to the Classification Office under s29(1) and s116(1) of the Films, Videos and Publications Classification Act 1993. The Office has exclusive jurisdiction to determine the matter, and sends a “report of findings” back to the Court. Every report of findings contains decisions that classify the publications referred by the Court to the Office.
No form is prescribed by the Act or Regulations for this reference. Section 29 does however require that the reference
- identify the referring Court;
- identify the civil or criminal proceeding that gives rise to the reference (normally this will include the style of cause and a CRN number);
- identify the publication or publications referred to the Office; and
- state that the Court determines that “a question arises whether any publication is objectionable” or is objectionable except in particular circumstances (such a determination will require the order to be signed by the judge or registrar).
Sections 29(1) and 116(1) do not permit the Office to provide a report of findings to the referring Court unless the Court Order makes clear reference to these four matters.
Section 20(2) gives every party to the proceeding in respect of which a s29(1) referral is made the right to make written submissions to the Classification Office in respect of the classification of the publications referred by the Court. As a courtesy, the Office reminds counsel of this right. The reference should therefore also include
- contact details for counsel representing all parties to the proceeding.
If the Court requires one publication to be classified, it can be identified in the Court Order itself. If more than one publication must be classified, the Court Order may refer to a schedule attached to it that identifies the publications being sent to the Office.
Misidentification of the publications referred to the Office is the most common cause of delay. The Court Order will accompany the publications referred to the Office. The Court Order determines what the Office must examine and classify. If the references to publications in the Court Order do not match the identification on the publications themselves, the Office cannot be certain that it has received the publications that the Court requires it to classify. For this reason, particular care should be taken to ensure that
- the information contained in the schedule is recorded in exactly the same way as it appears on the publication itself;
- any titles on the schedule reflect the same capital and lower case conventions as those that appear on the publications (for example, LL20i3Ep.jpg);
- file extensions for digital material (for example, .mpeg or .jpeg or .jpg) are also accurately recorded;
- the publication sent with the Court Order is what the Court requires a report of findings for (for example, do not send a hard drive if all that must be classified is an image file on it).
Adherence to these requirements will contribute to the Office’s ability to respond efficiently to references from the Courts.