Ordinary rendition under the Charter

The War on Terror has given prominence to the practice of extraordinary rendition, where investigators from ‘nice’ countries like the US and (perhaps) Australia arrange for criminal suspects to be interrogated in less nice countries like Egypt and Saudi Arabia.  But, in federations like Australia where only some jurisdictions have human rights laws (and weak ones at that), there’s an easier way: export the application or even the making of your laws. That’s what Victoria does in relation to its child pornography laws.

This Friday’s long expected news that Bill Henson won’t be charged in relation to his photos of naked children in NSW followed a decision by the Commonwealth’s Classification Board to classify the photos as ‘PG’. That decision was merely the nail in the coffin of the prosecution in NSW, given that NSW’s offence also permits the defence of artistic merit which (politicians aside) was a no-brainer. But the Board’s decision is much more important in Victoria, where mild classification is the only formal defence to the creation or publication of something that fits the definition of child pornography (as least where it involves minors, rather than apparent minors.)

As previously blogged here, the classification of the photos was not a no-brainer. Rather, the risk that Henson’s photos would be classified as RC arose from these features of the classification scheme:

  • s11 of the Classification Act, which requires the Board to consider (amongst other things) ‘the standards of morality, decency and propriety generally accepted by reasonable adults’ (who, it seems, may not necessarily include the nation’s politicians or anti-child-abuse lobbyists)
  • the National Classification Code, which
    • requires decision-makers to take account of (amongst other things) ‘community concerns about… the portrayal of persons in a demeaning manner’;
    • requires an RC classification for publication that ‘describe or depict in a way that is likely to cause offence to a reasonable adult, a person who is, or appears to be, a child under 18 (whether the person is engaged in sexual activity or not)’ or ‘incite[s…  in matters of crime of violence’
  • the Guidelines for the Classification of Publications, which require an RC classification for publications that:
    • ‘promote… paedophile activity’
    • ‘contain…   offensive… depictions involving a person who is…  a child under 18’ (with offensive defined as ‘Material which causes outrage or extreme disgust. The Guidelines distinguish between material which may offend some sections of the adult community, and material which offends against generally accepted standards, and is therefore likely to offend most people.’)
    • contain… offensive… depictions of…. sexualised nudity involving minors’ (including ‘poses… that are sexually suggestive’)

So, there are lots of judgment calls to be made, about the meaning of particular terms used here (e.g. What is ‘outrage’ and ‘extreme disgust’? Where is the line between ‘some sections of the adult community’ and ‘generall accepted standards’? Do ‘incite’ and ‘promote’ including unintentioned encouragement of paedophilia? What poses are ‘sexually suggestive’? ), the nature of Henson’s photos and the policy balance between the various classification criteria.

What’s interesting about this from a Charter perspective is that neither the legal questions of interpretation of these documents nor the decisions about how to implement them are subject to the Charter, even though they are crucial to the definition of a criminal offence in Victoria that clearly engages both the right to freedom of expression and the right of children to protection. The Classification Act, the Code and the Guidelines are neither statutes passed by the Victorian parliament nor documents made under those acts, which means they are outside the scope of the interpretation mandate. Moreover, neither the Classification Board nor the Review Board are public authorities subject to the conduct mandate.

Many will say that the Board’s decision shows that, nevertheless, Victoria’s definition of its key defence according to the decisions of a non-Victorian law and board show that the scheme is protecting free expression. Others will argue that it isn’t protecting children. Of course, it may just be that the Board had seen more-than-enough real child pornography recently.

Any Commonwealth, State or Territory Minister responsible for classification matters – typically the various Attorneys-General – or a ‘person aggrieved by the decision’ can ask for the Review Board (not a public authority either) to review the original decision. Moreover, the various Ministers, working together, could tighten the rules. Or perhaps the Commonwealth will simply change the Act, given the views of the PM (or, conversely, the views of his favourite actress.) Indeed, political interference has already created quirks in the scheme: if the child in Henson’s photo was carrying a pro-Al Qaeda message then the photo would be automatically RC, leaving Henson much more open to a charge of child pornography.

If the rules are changed (or aren’t, depending on your perspective) then the only remedy for a breach of the Charter would seem to be a declaration of inconsistent interpretation on the offence provision, which of course would have no legal effect. (Perhaps another possibility would be to argue that a child porn prosecution by a state authority – including Victoria Police or the OPP – (or a failure to prosecute) that limits a human right would be a breach of the conduct mandate. Perhaps. See Charter s. 38(2)).

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