Part I
by Bryan Kirk
Wellington Regional Reporter
Challenge Weekly
Vol. 58 Iss. 18, 23 May 2000
On 15 May the Attorney-General, The Human Rights Commission, The Race Relations Office, The NZ Council for Civil Liberties, and the NZ AIDS Foundation, all sought leave to intervene in The Court of Appeal case - Living Word Distributors Limited v Human Rights Action Group (Wellington). As previously reported in Challenge Weekly (21 March, 3 April), Living Word is appealing a recent High Court decision upholding a ban on two Christian videos: Gay Rights/Special Rights: Inside the Homosexual Agenda and AIDS: What You Haven't Been Told. Both videos, now banned as "objectionable", were produced by Jeremiah Films, a leading Christian film producer based in California, and were imported by Living Word to be used specifically as Christian teaching tools.
This is a precedent-making case in which for the first time videos have been banned on the grounds of opinions expressed alone, it being admitted that usual censorship issues such as obscenity or violence are in no way involved. With a record number of five parties, including three national statutory bodies, having applied to intervene, this is shaping up to be a truly landmark civil case and one of considerable constitutional importance.
The case is also significant world-wide: involving a total ban on a publication produced as a teaching tool by a Christian ministry and currently used by Christian groups throughout the world for this purpose. According to the Jeremiah Films Executive Director, in no other country in the world has a restriction, let alone a total ban, been placed on these Christian videos. The outcome of the case could have wide ramifications on the ability of churches and Christians and other religious bodies to speak out and provide teaching on moral issues.
Three Appeal Court Judges were present at the 15 May "hearing of miscellaneous motion", Rt. Hon. Justice Gault (presiding), Rt. Hon. Thomas and Rt. Hon. Tipping. The Court set a hearing date for July 10. Counsel for the appellant, Associate Professor of Law, Paul Rishworth, and barrister Peter McKenzie, have until 20 June to file their written submission. All interveners supporting the respondent, the Human Rights Action Group (HRAG), will have until 30 June to file their submissions with no opportunity of an oral presentation being allowed. The Court reserved the right to view the videos and allow for oral clarifications by interveners on particular points, should the Court consider this necessary.
Justice Gault, referring to the 10 July hearing stated, "we're not into the facts, only points of law." Mr McKenzie pointed out that one of the issues on appeal noted in the Attorney-General's submission, was the need to clarify whether or not, in law, the High Court should have deferred to the Film and Literature Board of Review, when it chose not to consider the facts of the case, and only consider the points of law. If it were not required to have done so, then the Court of Appeal could refer the case back to the High Court for an independent assessment of the facts of the case, or refer it back to the Board with a clear directive as to which matters need further consideration.
Both videos were rated R16 by the Film and Video Labelling Body Inc., in 1994, and then, following an application by HRAG to the Office of Film and Literature Classification in 1995, were given a R18 classification. Following an appeal against this decision by HRAG to the Film and Literature Board of Review, they were re-classified in 1997 as "objectionable" on the ground that "the publication is likely to be injurious to the public good". This represented a total ban: the highest censorship restriction possible. Living Word appealed the decision in the High Court, but the Court upheld the decision of the Review Board.
The right and freedom to robustly criticise
In its application for leave to intervene the NZ Council for Civil Liberties said it believed the appeal "will raise important public law issues, such as the right of Christian or other groups to robustly criticise groups of persons holding views or engaging in behaviour that the former group find offensive and deeply disturbing." Already the Council's involvement in the case has drawn fire in the "gay" journal The Express (27 April), which has accused it of supporting "homophobia".
The chronology of a conundrum
On its website, material on "Censorship Issues" HRAG states:
"In 1995 a Christian group started showing the following videos around the country, AIDS: What You Haven't Been Told and Gay Rights/Special Rights. This didn't concern us too much at the time, but it was brought to our attention that the number of gay men and lesbians being violently assaulted increased whenever and wherever these videos were shown... this was of great concern... we were seeing the results of the hatred that these videos engendered....After consulting the Bill of Rights Act ... We discussed this with staff of the OFLC, and decided to lay a complaint ... on 15 February 1995" [emphasis added].
http://www.geocities.com/CapitalHill/Senate/3585/censorship.html
This reasoning is difficult to reconcile with the date on which the complaint was laid in February 1995, as it would suggest that in only just over a month, sufficient evidence of anti-gay violence had arisen to justify HRAG changing its position.
Furthermore, in reaching the decision to lay a complaint, HRAG reports that its members "were stuck with a conundrum": with s. 14 of the Bill of Rights Act (1990) giving everyone "the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form", and section 19(1) giving everyone "the right to freedom from discrimination on the grounds set out in the Human Rights Act 1993." The conundrum would appear to have been as short-lived as the period of alleged unconcern, for on HRAG's chronology the momentous decision to strike down one of the most sacred civil rights of New Zealanders was both wrestled with and resolved in a bare month.
Concerning their application to the Board of Review in early 1997 to upgrade the R18 classification to a ban, HRAG states on its website:
"We laid a complaint ... stating .. that wherever these videos were being shown the incidents of violence against gays and lesbians increased significantly - in Christchurch at least ten times".
No NZ examples have yet been documented. It is a long-established principle of natural justice that serious and possibly actionable accusations should be checked and substantiated before being reported as fact.
Go to part II.
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