“United Future’s Objectionable and Offensive Censorship Bill”

SPCS opposes a Private Member’s Bill in the name of Marc Alexander, a first-term United Future Party MP and party spokesman on Internal Affairs, which is set down as item number six on the Order Paper for Wednesday 19th February 2003. United Future Deputy Leader Gordon Copeland has confirmed to SPCS that his Party’s caucus supports the Bill.

While appreciating the well-intentioned objectives of the Bill’s proponent to try to restrict the dissemination of objectionable publications by ‘tightening’ up the law, SPCS has conveyed its serious concerns over the Bill to the United Future caucus and the belief that the ironic effect of its passing would be to muzzle one of our most precious rights, that of freedom of social, political and religious expression, while still permitting censors to continue to pass truly objectionable pornographic material.

The Bill called the Films, Videos, and Publications Classification (Meaning of Objectionable) Amendment Bill” replaces the three words “matters such as” [sex, violence, crime, cruelty and horror] in s. 3(1) of the Films, Videos and Publications Classification Act 1993 (“the principal Act”), with the words “including, but not limited to” [sex, violence .. etc]. (The Society has already made lengthy submissions to the Government Administration Select Committee opposing the sorts of changes to the principal Act found in the Bill. See below). The clear intention of the Bill is to widen the jurisdictional gateway beyond the five activities listed in the principal Act, as it states in section 3.

The purpose of this Act is to - (a) amend the scope and intent of the meaning of “objectionable” in relation to a publication, as defined in section 3 of the principle Act and (b) clarify the standard applying to that term.

If passed, it will enable the Office of Film and Literature Classification (OFLC), headed by Chief Censor Bill Hastings, to ban or heavily restrict publications (via age restrictions and excisions) that contain matters it considers “objectionable” and that do not come within the existing jurisdictional gateways, for example, politically-incorrect opinions expressed that are considered “objectionable”, such as so-called “hate speech” (the Society believes the latter is more than adequately dealt with under existing defamation laws and the Human Rights Act).

The Bill amends section 3 (2) of the principle Act which defines those activities that deem a publication objectionable, “if the publication promotes or supports, or tends to promote or support” them. They include bestiality, paedophilia, necrophilia, and sexual coercion involving violence. The amendment will omit the words quoted from the Act replacing them with “if the publication advocates, promotes, or encourages, or tends to advocate, promote or encourage”. The Society regards this change as pointless and asks: Why is the current law is not being applied properly by the Film and Literature Board of Review and the OFLC to ban films such as “Visitor Q” and “Baise-Moi” which do tend to promote activities listed in section 3(2) of the principal Act.

Chief Censor Bill Hastings, a supporter of the Bill, was Deputy President on the Film and Literature Board of Review that in 1996 unanimously banned two Christian videos that contain material critical of the promiscuous homosexual lifestyle (the Living Word videos). The Board considered that some of the opinions expressed in the documentary -style religious-based programme were hurtful to homosexuals and lesbians and took the view that the publications constituted “hate speech”. The High Court subsequently upheld the banning order on an appeal by the video distributor, but following a further appeal to the Court of Appeal, in its ruling in September 2000, the banning order was unanimously quashed. In June 2001 the videos were reclassified by the Board as unrestricted (Evening Post 21 June, 2001, p. 8).

Editorial writers at the time expressed astonishment that “opinion-piece” videos, universally conceded to have no pornographic content, were ever banned in the first place and hailed the ruling as a triumph for the cause of freedom of expression. That hard-one victory is now under the gravest threat from the manoevres by the United Future Pary supported by the Chief Censor.

In contrast to Hastings, none of the Court judges took the view that the videos constituted “hate speech”. The High Court expressed serious concerns about the inroads into freedom of expression that this case represented, but still upheld the Board’s ban. The unanimous ruling of the Court of Appeal quashing the ban has irked Mr Hastings and led him to make repeated calls for a law change.

The Society president Rev. Gordon Dempsey says:

“This ill-conceived and seriously flawed Bill, if passed, will give unbridled power to the Chief Censor’s Office and the Film and Literature Board of Review. It constitutes the greatest threat to civil liberties and freedom of expression that this country has seen in recent years. It poses more danger than Government legislation introduced last year that sought to include criminal liability provisions in the Electoral Amendment Bill No. 2, by way of a supplementary order paper. If passed it would have had the effect of muzzling the media in its coverage of election campaigns. The outcry against that ill-conceived and draconian addition led the government to abandon the SOP. The Society will be looking to the NZ media to take a lead in opposing Mr Alexander’s Bill. They need to ask why the United Future Party isn’t devoting its energy to ensuring that our current censorship laws are being properly applied and enforced, given their stated concerns about the family?”

How the Government might reverse the effect of a unanimous Court of Appeal decision by changing the law.

Reproduced from Society of Community Standards Newsletter (October 2002 pp. 4-5) (Copyright SPCS Inc. P.O Box 13-683 Johnsonville).

The Society presented its oral and written submission to the Government Admin-istration Select Committee undertaking the Inquiry into the Operation of the Films, Videos, and Publications Act 1993 [“the Act”] and related issues last year. The committee has yet to release its report. Among the 12 terms of reference of the inquiry are:

3. The definition of ‘objectionable’, as set out in Section 3 of the Act, to determine whether the Court of Appeal’s narrow interpretation of the words, ‘matters such as sex, horror, crime, cruelty, or violence,’ in the Living Word Distributors Limited v Human Rights Action Group, adequately carry out the intent of the Act.

5. The issues to emerge from the Court of Appeal’s decision in Living Word Distributors v Human Rights Action Group as to whether: ...

(b) To include a ‘hate speech’ provision in the Act that would allow the Office to classify ‘hate speech’, and whether to amend the Human Rights Act 1993 to provide a penalty for the dissemination of ‘hate speech’.

Society spokesperson David Lane pointed out to the select committee that if the Act was amended to widen the “jurisdictional gateway” as defined in s.3(1), to include ‘hate [sex, violence, crime, cruelty and horror].

speech’, it would reverse the effect of a unanimous decision of the Court of Appeal in the Living Word case. This decision quashed an earlier decision by the High Court that had upheld the decision of the Film and Literature Board of Review to ban two Christian videos that critiqued promiscuous homosexual lifestyle choices, examined the causal factors in the AIDS epidemic and documented the growth of the aggressive pro-“gay” political lobby in the United States. Lane noted that such lobbyists in NZ seem not to have accepted the judgement of the Court of Appeal on these video classifications and appear to be intent on having section 3(1) of the Act – defining the “jurisdictional gateways as ‘sex, horror, crime, cruelty and violence’ - widened to include “hate speech”, “sexual orientation and the sexual transmission of HIV”. They cannot tolerate any critical appraisal of their sexual lifestyle choices and label all such publications by definition as “hate speech”.

The Living Word videos were not “hate material”. None of the seven judges (2 in the High Court and 5 in the Court of Appeal) involved in the Living Word case regarded the material as being “hate material”. Indeed, in various ways, every judge to have considered these videos made it clear that he would not have banned them The videos were, as Thomas J describes them “essentially political tracts”.

By a simple change to the words “matters such as” in s. 3(1) of the Act to “matters that include” or “matters including” (or by substituting “includes” for “such as”); those submitters intent on bringing ‘hate speech’ and issues of ‘sexual orientation’ into the “jurisdictional gateway”, seek to overturn the effect of the unanimous Court of Appeal decision in Living Word. The decision of the Court of Appeal was that the videos did not deal with “sex, horror, crime, cruelty, or violence” and the matter was remitted back to the Board for reclassification. Nine months later the two videos were classified “unrestricted”.

Counsel for the respondent in Living Word, the Human Rights Action Group (Wellington), argued that because the videos reported on sexual activities of gays, albeit in a non-explicit or salacious manner; the mere discussion of such practices meant they dealt with “sex” in terms of s.3(1) of the Act and therefore came within the jurisdiction of the Classification Office for the purposes of censorship. This view, accepted by the High Court on an appeal by the video distributor, was rejected unanimously by the Court of Appeal. It is the view of the Society that the Court of Appeal was right to interpret s. 3 (1) of the Act as “tending to point to [sexual] activity rather than to expression of opinion or attitude.”

Court of Appeal decision in Living Word has “put in doubt” his Office’s ability to do its job says Bill Hastings.

Reproduced from Society of Community Standards Newsletter (October 2002 pp. 5-6) (Copyright SPCS Inc. P.O Box 13-683 Johnsonville).

Bill Hastings has stated: “The Court of Appeal’s interpretation of s3(1) [of the Act] has put in doubt the Classification Office’s ability to classify as restricted or objectionable publications which for example:

[1] Depict mere nudity which is to some degree “sexualised”;

[2] Invade the privacy of people surreptitiously filmed changing clothes;

[3] Contain offensive language and little else;

[4] Treat a group of the public as inherently inferior by reason of a prohibited ground of discrimination [under the Human Rights Act 1993];

“All of which are status based and which therefore cannot easily relate to an “activity” now required to pass through a gateway. At the time of writing, the Government Administration Select Committee is holding an inquiry into the operation of the Act which includes consideration of whether s3(1) should be amended following the Court of Appeals decision.”

The Society is astounded that our Chief Censor should so misinterpret the findings of the Court of Appeal in Living Word in this manner and that media commentators appear to have been taken in by such flawed reasoning. It is clear that the Chief Censor has little concern about items 1-3 as the Classification Office under his leadership has granted unrestricted classifications to numerous publications containing grossly offensive language and nudity that is “to some degree sexualised”.

Publications containing element 2 can be dealt with under privacy laws and element 4 under s. 3(3) of the Act as well as under the Human Act 1993. For as long as Hastings has been in the executive of the Classification Office (since December 1998) there has been a significant increase in the numbers of sexually explicit videos granted R18 classification that have the effect of “degrading, demeaning and dehumanising” women (a class protected under the HRA) and treating them as “inferior”. Numerous OFLC classification decisions document this fact, acknowledging that women are depicted as a mere “collection of orifices” for the “sexual gratification of men”. Excisions are very rarely required by the OFLC. It is hard to credit such decisions to an Office that has women holding four out of five of the management team positions.

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