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44 classification publications films and computer

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44Classification (Publications, Films and Computer Games) Act 1995(Cth) s 9.45National Classification Code (May 2005)(Cth) cl 3(4).
language, drug use and nudity,46and films are only to be classified MA15+where the impact of the material is ‘strong’.8.2The Documentary‘does not contain any explicit sex scenes or courselanguage’ and deals with sexuality in terms ‘likely to be understood bychildren aged 10 and up’, which is therefore relatively mild. Based on thisand considering the description of an MA15+ rating in both the Code andGuidelines, the Board failed to follow these instruments as required bytheClassification Actin making the Decision, amounting to procedural error.8.3Additionally,the Classification Actrequires that a decision to reclassifyshould take into account ‘the literary…or education merit’ oftheDocumentary, as well as its ‘general character’.47Given expert opinion hasexpressed that the Documentaryis of ‘significant educational merit foryoung children, including children aged between 10 and 14’, the Board hasagain failed to comply withthe Classification Act, resulting in proceduralerror.8.4These procedural errors enable review underthe ADJR Actas‘proceduresthat were required by law to be observed in connection with the making ofthe decision were not observed’.48The common law equivalent ground ofreview is relied on in the alternative application underthe Judiciary Act.8.5It is noted that it is ‘irrelevant whether the court agrees with the board’sdecision or would decide the matter differently’,49and in the context of thisapplication, ‘[t]he function of this Court upon an application for judicialreview is to decide whether the Board has acted in accordance with thelaw. It is not to substitute its own assessment of the publication for that ofthe Board.509.The Decision and reasoning of the Board is also affected by an improperexercise of power.46Guidelines for the Classification of Films 2012(Cth) Part 2.47Classification (Publications, Films and Computer Games) Act 1995(Cth) s 11.48Administrative Decisions (Judicial Review) Act 1977(Cth) s 5(1)(b).49FamilyVoice Australia (ABN 57479 058 057) v Members of the Classification Review Boardand Another(2011) 283 ALR 245.50Brown v Members of the Classification Review Boardof the Office of Film(1998) 82 FCR 225.
9.1Underthe ADJR Act, judicial review may be sought where the making of adecision was ‘an improper exercise of power conferred by the enactmentin pursuance of which it was purported to be made’.51To prove on balancethat there has been an improper exercise of power, certain legislativeconsiderations are set out.529.1.1One consideration is whether the decision-maker failed to takeinto account a relevant consideration.53The Applicant allegesthat the Respondent failed to properly consider the expertevidence received in submissions, as was legally mandated.54These fifteen submissions, from prominent child mental health,development and educational professionals, all asserted thatthe Documentary does not pose any risk of psychological harm,and is instead of significant educational value. The Respondentclearly failed to take relevant submissions adduced by experts

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Term
Three
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NoProfessor
Tags
Decision Making, Separation of Powers, Supreme Court of the United States

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