obsceneThe meaning of simple words such as “and” and “or” (or shorter/longer) is not always as clear cut as you might at first think.

The 30 May 1956 edition of People magazine included an article entitled “Love in the South Seas”. The article was almost exclusively concerned with the sexual habits of Polynesians in their native islands, who apparently compared with Westerners were abnormally oversexed. The article was found to be obscene under Victorian law at the time. More details about the article appear in the judgment of the Victorian Supreme Court. Associated Newspapers sought special leave to appeal to the High Court (see Associated Newspapers v Wavish) .

The argument was about the construction of section 169 of the Police Offences Act 1928-1954  (Vict.) which provided:

(1) In this Part—obscene’ (without limiting the generality of the meaning thereof) includes

(a) tending to deprave and corrupt persons whose minds are open to immoral influences; and

(b) unduly emphasizing matters of sex, crimes of violence, gross cruelty or horror.

Dixon CJ found that: “In relation to the definition of the word obscene’ in s. 169 (1), we are of opinion that the word and” does not mean that what is stated in pars. (a) and (b) provides cumulative conditions which must be both fulfilled before an article” can fall within that definition. It is enough if the article has the tendency described in (a) or has the undue emphasis described in (b).”

So, was the article obscene? Dixon CJ said: “In this particular case four members of the Court have read the article carefully and are of opinion that it is clearly within the definition of obscene”. For myself, I have not read the article through but I have seen sufficient of it to leave me with no doubt that their Honours are entirely right in the view they have taken.” So there – application refused!

Creative commons acknowledgement for the photograph (which is not obscene – it’s a clothes hook).

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