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Applications to the Secretary for Internal Affairs for leave to apply to the Film & Literature Board of Review
Procedure for considering applications
When an application for leave is received, the Department will:
1. Process the application.
2. View the publication that is the subject of the application to help determine whether the application is frivolous.
3. Consider the case made in the application in light of the criteria set out in the ‘criteria for leave’ section below.
4. Prepare advice for the Secretary recommending that leave be granted or refused.
5. If leave is to be granted, prepare advice on the appropriate application fee to be paid for the review.
6. Prepare a report setting out the reasons why leave was granted or refused.
7. Distribute the report to interested parties.
Criteria for leave
Applicants are asked to provide the following information when applying for leave:
Decision about granting leave
The Secretary plays a limited role in the classification and review process. Decisions about the quality and persuasiveness of the cases put forward by parties to a review are for the Board of Review to make. Before granting leave the Secretary must be convinced that an applicant has prima facie grounds to apply for a review and that the application is not vexatious or frivolous.
The Secretary may refuse an application if it:
Prima facie grounds
Prima facie is a legal term that means "on the face of it" or "at first sight". In order to accept that there is a prima facie case, the Secretary will need to be satisfied that there is sufficient evidence disclosed in the application to initially establish that there is a case to answer. This is not to say that the applicant’s arguments will necessarily be accepted by the Board.
Vexatious or frivolous applications
A vexatious application may be one that is not made in good faith or that is actuated by malice. The Courts have held actions to be vexatious where they were taken with the intention to disturb, trouble or annoy another party. The pursuit of claims without sustainable foundation has also been deemed vexatious.
A frivolous application may be one that is so untenable that it could not possibly succeed. An application that is considered to be trivial, needless or unfounded may also be regarded as frivolous. The Courts have held that, in order to be frivolous, pleadings must be so clearly frivolous that to put them forward would be an abuse of process.
For an application for leave to be refused on the grounds that it is frivolous or vexatious, an applicant must be believed to be patently abusing the rights granted by the legislation rather than exercising those rights in a bona fide manner.
Notification of decision
Once the Secretary has made a decision to grant or refuse leave, a written decision will be issued. A copy of the decision will be provided to the applicant, the owner/distributor of the publication and the Office of Film and Literature Classification.
Application for leave
The Films, Videos, and Publications Classification Act 1993 allows anyone to seek the leave of the Secretary for Internal Affairs to apply to the Film and Literature Board of Review for a review of the classification of a publication.
Some government officials, parties to court proceedings, and the owner/distributor of a publication have an automatic right to seek a review and do not require the leave of the Secretary.
Application forms to seek the leave of the Secretary and copies of these guidelines are available from the Secretary of the Board of Review, upon request (ph: 495-7200).
Last updated: 19/12/2005