Marc My Words - 25 February 2005

When the only censorship is against the truth

This week the letter is somewhat technical and I apologize in advance if it causes drowsiness.

However it is very important for a number of reasons. First and foremost, in my view Stephen Franks of the ACT party has completely misrepresented the recent Films, Videos and Publications Classification Amendment Act. In an attempt to shore up his party's rapidly diminishing relevance, he has argued that the legislation is an encroachment on our freedom of speech. In my opinion nothing could be further from the truth.

Furthermore, it seems to me that a party that prides itself on being tough on crime, and then votes against legislation that stiffens the penalties by tenfold on child pornography, is an absolute contradiction.

And finally, when political parties except for ACT are united against the crime of child abuse through child pornography, then clearly that party is politically out of step with the public and richly deserve its demise at the next election.

Many will be comforted with the news of Operation Tercel, the biggest Police operation ever against the purveyors of child pornography in NZ, with 19 arrests and another 22 people on summons as a result. While the legalities take over and the courtroom dust settles on the 41 alleged offenders (with the possible addition of another seven cases pending) it is timely to consider the relevant legislation that was passed by Parliament last week.

The Films, Videos and Publications Classification Amendment Act

The Films, Videos and Publications Classification Amendment Act was passed almost unanimously. Some have mischievously considered the Act to be a first step of censorship against 'hate speech'; nothing could be further from the truth. In a nutshell, where previously no such sentence existed the Act imposes a five year prison sentence for possession of child pornography. It also increased by tenfold the maximum sentences that could be attached to the most serious offences.

It is difficult to understand why the ACT party stood alone against this legislation. The principal defence for their stand was that the Act would introduce 'hate speech law'. This Bill does nothing of the sort. Nowhere in the legislation is there any attempt to stifle free expression. However the chief censor's office has the ability to restrict material to those over 18 years of age if the language used is obscene and injurious. The legislation states explicitly: "Publication may be age-restricted if it contains highly offensive language likely to cause serious harm." The provision is a high threshold to meet. The Act is not directed at ideas or beliefs but is a restriction on extreme language only. It is neither a ban on content nor a blanket ban on language but a reasonable restriction to protect our most vulnerable young.

Another protection against the nonsense of the 'free speech' argument is that the term 'highly offensive language' cannot be defined by one segment of the public but by 'the public in general'. This definition safeguards against, for example, any group demanding the banning of publications that others would not object to and vice versa. The 'Living Word' argument just does not apply here.

Stephen Franks sought six amendments which United Future and Labour could not support and they lapsed. ACT alone stood against a law that increased penalties for child pornographers. His proposed amendments sought to address problems that do not exist and would have resulted in confusion rather than clarity. In my opinion the allegations about hate speech conspiracy theories are nonsense.

His first amendment proposed to replace the words "reasonably capable of being regarded as sexual in nature" with "likely to be regarded by a normal person as sexual in nature." The change is not substantially different. However; the term "normal person" in Franks' amendment is not the usual approach for introducing an objective standard; (how should the law define a "normal" person?). All that it does is clarify that certain images of children are to be regarded as a "matter such as sex" for the purposes of the subject matter gateway in section 3(1). This enables the Classification Office to consider whether or not they should be restricted or prohibited. Under the existing legal standards, the Classification Office:

· May restrict or prohibit a publication if it deals with the subject matter in such a manner that the availability of the publication is likely to be injurious to the public good (section 3(1)); and

· Must prohibit that publication if it promotes or supports, or tends to promote or support, the exploitation of children or young persons, or both for sexual purposes (section 3(2) (a)).

The decision in the 'Living Word' case in which the Court of Appeal ruled that a publication must deal with "matters such as sex, horror, crime, cruelty, or violence" to be classified as "objectionable", cast some doubt on whether nude images of children could be classified. This clause simply clarifies that such images are a matter of sex, and therefore they can be classified. The new section 3(1A) is to be read with the section 3 gateway, it is not a separate or new test.

Franks' second amendment was that the proposed section 3A(3) in clause 4A be replaced with the following: "In this section, means language that is likely to cause grave offence to the overwhelming majority of the public by its use of offensive expression and not by its reason of disagreement with the subject matter or argument or propositions expressed."

The effect was to seek to replace the definition of 'highly offensive' to ensure that freedom of speech is protected and in light of a view that the Bill does not achieve this. The result is not substantially different from the Bill as drafted in terms of its motivations and desired effects. The amendment was trying to draw a distinction between language and ideas and appeared to attempt to raise the threshold of "offensiveness". The
offensive language provision would only apply to publications that contain language that is 'highly offensive to the public in general', to a degree that if not age restricted ,the availability of the publications would likely cause serious harm to people under that age.

Mr Franks thoroughly missed the point because this provision is concerned solely with the protection of children. The Bill does not authorise restriction just because adults find an expression offensive or because language might be insulting or offensive to a particular group. This is not a provision to be generally applied but an age restriction provision to prevent serious harm to children. It is confined to language and must be interpreted in light of the guarantee to freedom of expression in the Bill of Rights Act 1990. This is a measure to protect children from exposure to otherwise unclassifiable extreme offensive language, not a measure to limit freedom of speech. Again I consider Mr Franks was wrong.

His third proposed amendment was to section 3B in clause 4A to be amended by inserting "the overwhelming majority of" before the word "person" in a (proposed) subsection (4) The effect of this restricts the reference to the general levels of emotional and intellectual development by linking it to the overwhelming majority of persons. The Bill referred to the general levels of development of all persons under the specified age - this necessarily involves the overwhelming majority of persons. The amendment added nothing.

The fourth amendment was to section 3B in clause 4A to be amended by the deletion of subsection (4) ©. The effect is on Section 3B which allows age restrictions to be placed on publications which contain specified material that is likely to be injurious to the public good, for specified reasons. Franks' amendment sought to remove one of the specified reasons (those relating to people being degraded, dehumanised or demeaned).New clause 4A is a provision which includes grounds (specified reasons) on which age restrictions may be imposed on certain publications (specified material) to prevent harm to children or young persons. The specified material that may be age-restricted includes portrayals of: suicide, bodily mutilations and other self-harm, dangerous imitable behaviour (such as extremely reckless physical behaviour or consumption of intoxicants), or nude and other visual portrayals that are degrading, dehumanising or demeaning (examples include degrading physical depictions of amputees).

The Act currently permits age restrictions to be imposed on publications that deal with "matters such as sex, horror, crime, cruelty or violence". New clause 4A ensures that these matters are also able to be age-restricted if making the publication available to young persons under the specified age would be likely to greatly shock or disturb them; increase the risk of them doing harm to themselves or others; or encourage them to regard or treat themselves or others as degraded, dehumanised or demeaned. R18 is the highest restriction.

In contradiction to what increasingly looks to me like Franks' 'conspiratorial' view, this does not mean that ideas that the Chief Censor thinks are degrading to minorities for example, can be age-restricted: only portrayals of physical conduct and/or visual images are covered by the 'degrading' sections (that is, specified material), not ideas or opinions or beliefs.

Franks' fifth amendment proposed that section 3D in clause 4A be deleted.
The effect of the amendment would be to delete 3D, stating that it allows the Chief Censor to bypass the "gateway provisions" in the Act. Section 3D is a technical amendment to make clear how the various sections in the Act fit together. It is intended to supplement section 3 in the limited way described above: to allow age restrictions to prevent harm to children, notwithstanding that the material may not necessarily be generally classifiable in terms of the Act. This is not a clause of general application so the consequence that Franks perceived is imaginary.

His sixth and final amendment was to clause 4B; that it be amended by omitting subclause (3).This was Franks' attempt to ensure that the law was not retrospective.

The clause allows a publication that has been previously classified or considered, to be reconsidered in rare circumstances. Examples might be where a publication previously could not be age-restricted on the basis of extreme offensive language, but it is in the public interest to have it age-restricted to protect children in future. Any criminality is not retrospective. Franks' supposed consequence could not arise irrespective of this limited power of reconsideration, because the grounds for age restriction are limited, as we see above.

In discussing Operation Tercel one of the detectives talked about retrieved pornographic depictions of a rape on a child too young to walk. What of her rights? Surely the ACT party cannot seriously entertain the idea that the freedom of expression for pornographers supersedes her rights to be protected? That would be no rights at all.

It's hard for me to escape the conclusion that the only reason ACT opposed this legislation was because they chose to elevate their libertarian principle of free expression (which was never at risk), over the interests of protecting our most vulnerable from the shocking horrors of child abuse.

ENDS

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