Part II
by Bryan Kirk
Challenge Weekly
Vol. 58 Iss. 19, 30 May 2000
On July 10 the issue of the limits of individual rights to freedom of expression, safeguarded under section 14 of the New Zealand Bill of Rights Act (1990), will be a focus in the Court of Appeal Case Living Word Distributors Ltd [Appellant] v Human Rights Action Group (Wellington) [Respondent].
As reported in Challenge Weekly (23 May): "This is a precident-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." A record number of five intervening parties filed applications to make submissions including the Attorney-General, the Human Rights Commission, The Race Relations Office, The New Zealand Council for Civil Liberties, and The New Zealand AIDS Foundation. The Christian videos, produced by Jeremiah Films of California, were classified as R16 in 1994 by the Film and Video Labelling Body Inc., then classified as R18 in late 1996 following an application to the Office of Film and Literature Classification by HRAG; then re-classified as "objectionable" and banned by the Film and Literature Board of Review in late 1997, following an appeal to the Board by HRAG; and then the ban was appealed in The High Court by Living Word Distributors Ltd. and lost in a decision dated 1 March 2000.
The Human Rights Action Group belatedly
seeks evidence of anti - "gay" violence
In May 1997, over two years after The Human Rights Group (Wellington) [HRAG] sought the leave of the Chief Censor to submit the Christian videos AIDS and Gayrights/Special Rights for classification, and with their appeal soon to come before Board of Review; HRAG member Calum G. M. Sawyers made a significant plea. He wrote an appeal in the "gay and bisexual" newsletter Spectrum (May 1997) asking the "gay" community for some evidence of anti-gay or anti-lesbian violence in New Zealand". He wrote:
"Dear Sir/Madam .... Currently the video's Gay Rights/Special Rights and Aids ... are before the Film and Literature Board, who have granted me an oral hearing. In order to strengthen the case against these video's [sic] I need to show that where these video's [sic] have been shown in New Zealand, there has been an increased [sic] in anti-gay or anti-lesbian violence, either verbal or physical. If anyone can help me verify this ... would you please get in contact with me ... All calls will be treated with confidence, and no names will be given to the Board of review." [Emphasis added]
Sawyers was appealing in 1997, in other words, for the very evidence that he was later to claim had been so overwhelmingly attested in 1995, and doing so in order to "strengthen the case".
Has the video ban been "demonstrably justified"?
The rights to freedom of expression safeguarded under The Bill of Rights Act (1990), "may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" (s. 5, italics added). Section 3(2) of the Films, Videos, and Publications Act (1993) is able to overide s. 14 of The Bill of Rights Act, for if material "promotes or supports, or tends to promote or support" one or more of five activities listed in s. 3(2), it can be classified as "objectionable" and banned by the Classification Office, if it is considered "injurious to the public good". Four of these activities (including pedophilia) are outlawed under the Crimes Act 1961 and its amendments. These restrictions are considered in NZ law to be a reasonable limit on the rights and freedoms in s. 14 of The Bill of Rights Act. The Film and Literature Board of Review was satisfied that nothing in the videos fell within section 3(2) of FVPA (1993).
Instead the Board ruled that the videos were "objectionable" under criteria found in 3(3)(e) and 3(4)(a) of the FVPA (1993) when it ruled that the "dominant effect of these videos is to represent that those people who are living with HIV and those people of a homosexual orientation are inherently inferior to other members of the public by reason of those identified characteristics," and consequently the "availability of [the] video recordings [was] likely to be injurious to the public good"(p. 13).
HRAG has published extracts of the transcripts from both banned videos on its website in order to try to advance its case against the "gay-haters". In the High Court appeal case it submitted to the Court transcripts of both videos in which the background music is described as "sinister" 41 times. A significant section of the GayRights transcript was omitted as they claimed the sound quality was inaudible at this point. Their website material seeks to prove that the videos treat people of a homosexual orientation and those living with HIV as inherently inferior to other members of the public. It is significant that none of the terms "sexual orientation" "orientation" or "homosexual orientation" are used in either of the videos. The focus of the videos is on chosen behaviour and sexual acts.
Calum Bennachie (formerly Calum Sawyers of HRAG) makes unsubstantiated claims of violence against "gays" in his article entitled: "A Case in Law: Taking on the Gay Haters and Winning!", published in the April-May (2000) issue of the "gay" publication Out. He claims that the violence prompted HRAG to push for the ban and recently wrote the following to Challenge Weekly (9 May, 2000):
"When these videos appeared in cities throughout the country, there was a large increase in violence against lesbians and gay men. Such violence, a crime, and inciting violence, contradicts Christian love. Inciting a crime is covered by the relevant Act."
Bennachie argues in Out that the decision of the High Court to uphold the ban on "the anti-gay hate videos", has provided a "semi-workable definition of hate literature" and HRAG will be lobbying Parliament to firm up a workable definition of "hate literature".
Eleven Grounds of Appeal
Counsel for the appellant (Living Word) will present 11 grounds of appeal in the Court of Appeal on July 10, including: (1) The banning of the video constitutes a breach of the appellant's right to freedom of expression under s. 14 of the NZ Bill of Rights Act 1990. The classification was unlawful. (2) It was wrong in law for the High Court to hold that the Review Board was a specialist tribunal to whose interpretations of the videos and classifications the High Court was obliged to defer, even when such deference results in leaving intact a classification decision that unreasonably limits freedom of expression and is therefore inconsistent with the NZ Bill of Rights Act. (3) The Board was wrong in law in holding that expressions of opinion, otherwise unobjectionable could be "objectionable" if based on "misinformation" and was wrong in law in determining that certain matters in the videos amounted to "misinformation".
Go to Part I.
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