Opinion Number. 1429

Subject

CENSORSHIP WHETHER film which has been passed by Censor and released from Customs control can afterwards become prohibited import by reason of alterations effected or additions made in Australia: IMPOSITION OF CONDITION BREACH OF WHICH WOULD LEAD TO FORFEITURE OF SECURITY

Key Legislation

Customs Act 1901: Customs (Cinematograph Films) Regulations 1926

Date
Client
The Comptroller-General of Customs

The Comptroller-General of Customs has forwarded the following memorandum for advice:

The suggestion has been made to this Department by the Royal Commission on the Moving Picture Industry that if possible the Commonwealth Film Censor should be empowered, should circumstances so arise, to withdraw from exhibition any film already passed by him.

The present Censorship of Films is governed by the Customs Act. The conditions to be observed are set out in Customs Proclamation No.130 of 19/9/26 (copy attached) and the Customs (Cinematograph Films) Regulations 1926 (S.R. 1926 No.119).

I should be glad to be favored with advice as to whether there is any power to make a regulation to enable the Commonwealth Film Censor to withdraw films, as suggested, and if so would the Crown Solicitor be good enough to favor me with draft amendment of the Customs (Cinematograph Films) Regulations accordingly.

The question raised appears to be covered by an Opinion given by the Solicitor-General on the 6th October, 1921,(1) which reads as follows:

I do not think that a film which has been passed by the Censor and released from Customs control can afterwards become a prohibited import by reason of alterations effected or additions made in Australia.

I am of opinion, however, that where an importer has given the undertaking contained in Form 1 in consideration of the registration of a film and its release from Customs, he is liable for breach of his undertaking and his security may be forfeited. […]

The above considerations apply also to advertising matter.

So far as regulations 13, 14 and 16 authorize the revocation of registration of films which have been cleared from customs and thereby rendering those goods prohibited imports, I am of opinion that the regulations cannot be supported.

Once goods have been released from Customs, authority to deal with those goods under the Customs Act is at an end.

In my opinion, the Commonwealth has no power to compel an exhibitor of a film in a State to withdraw the film from exhibition after it has been released from Customs control.

I see no reason, however, why the form of undertaking should not be amended with a view to bringing about the withdrawal of a film if the Film Censor so requires. If, upon the Film Censor requiring the withdrawal of a film, the requirement is not complied with, the importer would be liable for a breach of his undertaking and his security liable to forfeiture.

[Vol. 23, p. 533]

(1) Opinion No. 1142.