Legal case for re-classification of Baise-Moi

The Board now has available to it the decision of the Australian Classification Review Board on "Baise-Moi" dated 10 May 2002 which was not available to the Board at the time it made its earlier classification. Peter McKenzie QC acting for the appellant, submitted that the Board should properly have regard to that decision in making its reclassification...
David Lane
Secretary SPCS

BEFORE THE FILM AND LITERATURE BOARD OF REVIEW

UNDER The Films, Videos And Publications Classification Act 1993

IN THE MATTER of a Determination of the Film and Literature Board of Review on an application for review by the Society for the Promotion of Community Standards Inc of a film entitled “Baise-Moi”

SUBMISSIONS OF COUNSEL (P D McKENZIE QC) ON BEHALF OF THE APPELLANT

Dated: August 2002

BRYSON & CO

Solicitors RAUMATI BEACH

P O Box 2034, DX RP60301, Raumati Beach

Telephone (04) 299 2166; Facsimile (04) 299 2165

Solicitor Acting: Mr John Bryson

Introduction

1. This is a written submission presented on behalf of the appellant covering certain legal issues. The Society will present its own submission on the merits of its appeal. This submission covers the following matters -

(a) The scope of the reconsideration by the Board;

(b) The relevance of the decision of the Australian Classification Review Board on 10 May 2002;

(c) The matters to be addressed by the Board in relation to s.3(4)(b) and (f).

The scope of the Board’s reconsideration of this film

2. In his judgment dated 23 July 2002, Justice Hammond classified the grounds of appeal under five headings:

(1) Errors under s.3;

(2) Manifest unreasonableness;

(3) Failure to consider the submissions of the OFLC;

(4) Failure to consider the impact of the classification of Basie-Moi on a medium other than film;

(5) Failure to attach conditions.

3. Hammond J allowed the appeal in relation to grounds 4 and 5, and at para.89 stated:

“In the result the appeal is allowed. The decision of the Board is set aside. The proceeding is remitted to the Board for reconsideration in light of the observations made by this Court.”

4. In relation to grounds 1 and 2, Justice Hammond found no error of law in that he considered that it was reasonably open to the Board as an expert “jury” set up under the Act to make the classification, and reach the decision which it did. Hammond J is not stating that he agreed with the Board or would necessarily have come to the same view. That is not the Court’s function. Ground 3 was rejected on the facts.

5. The Court set aside the Board’s decision with the effect stated in para.90, namely that there is now no classification in full force and effect. The film is now unclassified and cannot be shown.

6. It is, therefore, not sufficient for the Board to simply proceed to make a decision in relation to the two grounds on which the appeal was allowed. Its previous classification has been set aside and the Board must proceed to reclassify this film. In conducting its rehearing, the Board has been directed by the Court to reconsider its classification in light of the observations made by the Court. In this respect, Hammond J was proceeding in accordance with r.718A of the High Court Rules which provides:

“(1) In allowing an appeal, the Court may -

(a) Set aside or quash the decision appealed from:

...

(2) Notwithstanding subclause (1), the Court may remit to the Tribunal or person whose decision is appealed from, for further consideration and determination by the Tribunal or person, the whole or any part of the matter to which the appeal relates.

(3) In remitting any matter to the Tribunal or person under this rule, the Court shall -

(a) Advise the Tribunal or person of its reasons for so doing; and

(b) Give to the Tribunal or person such direction as it thinks just as to any rehearing or to the reconsideration or determination of the whole or any part of the matter that is so referred.

...”

7. The Board has no power to issue a retrospective decision so as to classify the film as at the date of its previous hearing on 13 March 2002. Classification is made at the date on which the Board reconsiders the matter.

8. It is submitted that if, during the intervening period, any event occurs or a relevant decision having a bearing on the classification is given, the Board is entitled to have regard to such intervening matters when giving its classification. If a relevant authority bearing on the classification is drawn to the Board’s attention, then the Board should properly take that authority into account in considering its reclassification of the film.

9. In the present case, the Board now has available to it the decision of the Australian Classification Review Board dated 10 May 2002 which was not available to the Board at the time it made its earlier classification. It is submitted that the Board should properly have regard to that decision in making its reclassification.

Decision of the Australian Classification Review Board

10. It is submitted that decisions of the Australian classification bodies are relevant when considering a classification of a film in New Zealand. Regulation 4 of the Films, Videos and Publications Classification Regulations 1994 gives special recognition to the Film Censorship Board of Australia, which is declared, along with the British Board of Film Classification, to be an “overseas classification authority”. Under regs.9 and 12, if the labelling body, when assigning a rating to a film, is satisfied that the main feature of that film was identical in content with the main feature on a film which was identical in content with the film that had been classified by an overseas classification authority, then the labelling body is to have regard to that classification in assigning a rating to the film. In particular, reg.9(3) provides:

“9(3) If, after making an assessment under subclause (1) of this regulation, the labelling body is satisfied that the main feature on the film is identical in content with -

(a) A film that has been classified by an overseas classification authority as approved for supply or exhibition only to persons of or over a specified age (the specified age being an age that is 15 years or more); or

(b) A film that an overseas classification authority has refused to approve for supply or exhibition, -

the labelling body shall not assign a rating to that film, but shall submit it to the Classification office in accordance with section 12(1) of the Act.”

11. Regulation 4(2) provides that where, pursuant to regs.9 or 12 a labelling body is required to refer to a classification issued by overseas classification authorities, the labelling body shall refer first to the classification made by the Film Censorship Board of Australia, and shall not refer to the classification by the British Board of Film Classification unless no relevant classification has been issued by the Film Censorship Board of Australia.

12. It is apparent that a special status under the regulations is given to classifications made by the Film Censorship Board of Australia. Although the present case is not concerned with a decision of the labelling body, the particular status given by the Regulations to a decision of the Film Censorship Board of Australia is a factor to which the Board should have regard when making its own classification. It is accepted that the Board is not bound by decisions of the Film Censorship Board of Australia. The submission is that the Board is entitled to give special respect to those decisions in comparison with classifications made elsewhere.

13. In considering the decision of the Classification Review Board of Australia, the Board will need to take into account the fact that the Australian legislation differs in a number of respects from the Films, Videos and Publications Classification Act. In particular, the National Classification Code issued under that Act requires regard to be had to “the standards of morality, decency and propriety generally accepted by reasonable adults” and the Guidelines required in relation to an R18+ category require that sexual activity may be realistically simulated: the general rule is “simulation, yes - the real thing, no” and “nudity in a sexual context should not include obvious genital contact”. Although in these, and certain other, respects the Australian Guidelines impose a stricter regime on films which exhibit explicit sexual contact, and unlike the New Zealand regime require regard to be had to commonly accepted standards of morality and decency, the Australian Board’s factual description of the film is one to which, it is submitted, the New Zealand Board is entitled to have regard, given the status accorded to that body by the New Zealand Regulations. The decision of the Classification Review Board provides a detailed analysis of the content of the film and findings made by that Board which are of particular relevance in New Zealand having regard to the matters which the New Zealand Board is required to take into account under s.3(3), including the following:

- The finding at p.5 that there were “strong depictions of realistic violence” which were considered to be “gratuitous”. Four scenes in particular are detailed in this respect.

- The finding at pp.5 and 6 that sexual violence in the film was detailed and the rape scene was prolonged and is a “scene of realistic violence of very high impact”. A detailed analysis follows and concludes “notwithstanding the director’s stated intentions the scene was prolonged detailed and gratuitous”. This finding that the unrelenting level of realistic violence and the violent and explicit rape scene were “gratuitous” requires serious consideration by the Board as to whether s.3(2) of the Films Act applies to deem these sequences objectionable. The Court indicated in News Media Limited v. Film and Literature Board of Review (1997) 4 HRNZ that a tendency to promote or support is sufficient. The threshold is not a high one. The Society will develop a submission on this issue.

- The finding at p.6 that the film comes from the pornographic genre and uses many of the genre’s editing techniques to increase the impact of the film. The Board made a detailed analysis and considered that unlike many pornographic films, this film has a strong plot, good characterisation and some integrity of cultural purpose. However, the Board did not consider the film to be of such merit for this to otherwise override the requirements under the Code and the Guidelines.

- In its conclusions at para.6, the Board summarises its description of the film and its findings in relation to violence (“the film was of almost unrelenting violence...”), sexual violence was detailed and the rape scene one of very high impact.

These are findings by way of description of the content and impact of the film to which the Board is entitled to have regard. These findings by the Australian Classification Review Board which has some status under the Regulations, were not available to the Board when it made its earlier classification, and it is submitted that the Board is entitled to have regard to these findings when considering its reclassification of the film.

Section 3(4)(b) and (f)

14. In its earlier classification, the Board classified the film as R18 without imposing any other restriction. Justice Hammond held that the Board had made an error of law “in failing to have regard to the impact of the various mediums of formats in which this film might be presented”. Effectively, what the Board has done is to read down s.3(4)(b) and (f) to the narrowest possible reading, as meaning something along the lines of:

“The way in which the subject matter is presently to be presented. To my mind, the broader view taken by the OFLC is correct in law.”

The “various mediums of formats” to which Hammond J referred were the viewing of the film in video or DVD form and by way of screening on television.

15. A significant issue raised by Hammond J is in para.65 where the Judge drew attention to s.26 which provides that the classification given to a “publication”, “shall apply to every copy of that publication that is identical in content with it”. In para.68, Hammond J held that the effect of s.26 is that if the film was classified in the particular way [in this case, the classification was R18], videos for public consumption would then attract precisely the same classification. Hammond J drew attention to Mr Oliver’s submission on behalf of the Board that in practice the Board regards any change in the publication, e.g. the introduction of a trailer or any other additional material into a video as meaning that the video is then not “identical in content” with the film and can then be classified separately. It is apparent, however, from His Honour’s finding that where no trailer or additional material is introduced into the video it would, by reason of s.26, have to carry the same classification as the film. It is implicit from the judgment that the Board is required, when classifying a film, to have regard to the significant fact that under s.26 it would be open to any distributor to market that film in video form carrying the identical classification.

16. Paragraph 80 of the judgment is also significant. In that paragraph, the Court held that the Films Act appears to have adopted what the Court called “a monistic approach”, namely that a given publication is to be classified at the outset, and having regard to both the present and the likely use of that publication. The Court held that the likely use in terms of s.3(4)(f) includes the viewing of the film on television and the making of a recording of that film.

17. In reclassifying the film, the Board, therefore, must, in accordance with the statement of the law in Hammond J’s judgment, have regard to all the likely mediums and formats in which this film can be exhibited, including particularly video or DVD form and television screening. It will be submitted by the Society in its separate submission on the classification that when the particular factors set out in s.3(3) are taken account of, it is not reasonably open to the Board to give this film an R18 classification, and the Board must reconsider its classification in that respect. In the Society’s submission, the appropriate classification is for the film to be classified as objectionable unless appropriate excisions are made and the availability is restricted to use for certain specified purposes, such as in postgraduate use in tertiary film study courses.

18. The Chief Censor at para.12 questions the correctness of Hammond J’s judgment. With respect, that is not the function of the Chief Censor or the Board. The direction of the High Court must be applied.

19. Hammond J’s judgment is directed at the meaning of s.3(4)(b) and (f). These paragraphs do not place any limitation on the “medium” in which a publication is presented or on “other relevant circumstances” or the “likely use” of the publication, the latter particularly being words of very wide application. The Broadcasting Act has its own regime for material broadcast on television but there are clear points at which the two regimes intersect, e.g. s.4(2) of the Broadcasting Act 1989 and the obligation placed on the classification authorities under s.3(4)(b) an (f). It is also important to observe that a broadcaster is not exempt from s.131. The classification authorities under the Films Act have power to classify a publication in a manner which will make it an offence for a broadcaster to have possession of an objectionable publication.

Display conditions

20. In paras.86 and 87 of his judgment, Hammond J directed the Board to reconsider whether display conditions are required under s.27(5) having regard to the particular medium in which the film may be exhibited. It is submitted that as submitted by the Women’s Group at the initial hearing, it would be totally inappropriate to permit this publication to be classified in a manner which would permit it becoming available in video or DVD form. There are even stronger grounds to ensure that this publication cannot be screened on television since this would enable any viewer to record the film on video or DVD. Display conditions would then not be an issue.

21. The Board, in its previous decision, required a warning notice to accompany the film. This notice, if it becomes relevant for it to be issued, should be strengthened to refer to the fact that this film contains frequent depictions of violence including explicit sexual violence. It should be made clear that this warning does not replace the description assigned to the film under reg.14.

DATED at Wellington this day of August 2002.

...............................

P D McKenzie QC

Counsel for the Appellant

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