Submission by David Lane
Secretary
Society for Promotion of Community
Standards Inc
Presented 18 October 2001
INDEX
Footnotes
Background: Why has this inquiry been called?
We understand that this inquiry
has been undertaken in response to the failure of the
Prohibition of Child Pornography Amendment Bill to gain
the required support in Parliament during its second
reading. We presented a written and oral submission on
this Bill to the Government Administration Committee and
raised serious concerns about the current censorship
laws. Our Society, while applauding the good intentions
of the proponent of the Bill, committee member Anne
Tolley MP, opposed it on a number of grounds. We felt
the Bill of Rights issues had not been adequately taken
into account in the drafting of the Bill and that it
required a major reworking. We indicated our support for
a wide review of censorship laws with a particular focus
on developing legislation that would effectively deal
with child pornography and take full account of its
harmful effects.
In view of time constraints we
only seek to make detailed comments and recommendations
on term 5 of this inquiry in this oral submission. The
matter of the proposed incorporation of an additional
ground for classifying published material as
"objectionable", namely "hate speech", into section 3(1)
of the Films, Videos and Publications Classification Act
(1993) [henceforth referred to as FVPC] is of serious
concern to us. As it appears to be the Court of Appeal
decision in
Living Word Distributors Limited v Human Rights Action
Group (Wellington)
that has prompted the move
to suggest this change, we wish to discuss this Court
decision in some detail in the light of this proposal.
Before
looking at these matters, we want to question the
motivation of those who have recommended and succeeded
in making this particular change [the addition of "hate
speech'] to the legislation, one of the 12 terms of the
inquiry. It appears that this change has become an
"urgent" matter for some, only after the Court of Appeal
ruled to quash the High Court and Film and Literature
Board of Review decisions to ban two so-called
"anti-gay" videos. The lengthy campaign by the Human
Rights Action Group [henceforth referred to as HRAG],
which commenced in 1995 with the submission of the
videos to the Office of Film and Literature
Classification [OFLC], led to them being classified
"objectionable", involving a total banning order.
Those
who have sought to uphold the ban and who were
represented by their respective lawyers and made
submissions, written and oral, in the Court of Appeal
case (HRAG, the NZ Aids Foundation, the Human Rights
Commission and the Attorney-General's Office), have all
claimed that the videos constitute "hate speech" and
"hate propaganda". They argued this on the grounds that
the videos discriminate against a section of the
community which is safeguarded against discrimination
under the Human Rights Act. In their view the reference
to section 21 of the Human Rights Act [HRA] in section
3(e) of the FVPC provided a ground for "sexual
orientation" becoming a valid basis for the
classification of a publication as "objectionable". This
view was rejected in the Court of Appeal decision.
Our
Society first heard of the move to broaden the
"jurisdictional gateway" of the FVPC to incorporate
"hate speech" when some of our committee members
attended and witnessed an oral presentation before this
committee by a representative of HRAG, on Anne Tolley's
Child Pornography Bill. The submitter, Mr Calum
Bennachie, who has been the driving force behind HRAG's
six year failed campaign to ban the so-called "anti-gay
videos", strongly urged the committee to add "hate
speech" to the "gateway". It appears that he and his
supporters cannot accept the Court of Appeal's decision
in the Living Word Distributors case and
argue that it is not only flawed, but also detrimental
to societal well-being, in that it has opened up a
significant loophole in censorship legislation which
will allow a tidal wave of child pornography into the
country. Bennachie supplied examples of such material to
committee members.
Our
Society rejects this interpretation of the legal
implications of the Court's decision. Committee member,
Mr Tim Barnett MP, who works closely with Mr Bennachie
in the political sphere, in the course of raising two
leading questions on the occasion of Bennachie's oral
submission, indicated his strong support for this "hate
speech" revised legislation. Mr Barnett has voiced his
strong support elsewhere, through the media.,
highlighting the need for laws outlawing "hate speech"
aimed at groups of particular "sexual orientation".
The
submission [supplied to select committee] to the Film
and Literature Board of Review from the NZ AIDS
Foundation, sent subsequent to the Court of
Appeal decision (31/8/00) and before the Board's
decision to remove the banning order on the videos;
calls on the Board "to ask the Government" to change the
"legal landscape" so that the decision of the Court of
Appeal, or at least its effects can be reversed. The
letter informs the Board that the Foundation has
"written to the Minister of Justice to request that the
Government amends the FVPC so as to include hate
literature unequivocally - defined of course so as to
include videos, sound recordings etc - within the
purview of the Censorship Office and Board" (Italics
added). It goes on to state "We also wish specifically
to address the question as to whether the jurisdictional
gateway that has been identified by the Court of Appeal
does in fact exclude these two videos."
In
short, one could suggest that the attempt by the
respondent (HRAG) and one of the interveners, (NZ AIDS
Foundation), to push for a change to the FVPC so that
videos that express opinions on "sexual orientation" can
come through the "jurisdictional gateway" on the ground
of constituting "hate literature"; is devious. A
six-year campaign to ban "freedom of expression" was
lost in the Courts and now a new campaign to circumvent
the legal process using the parliamentary process
appears to have been been launched. The AIDS Foundation
has stated:
The implications of this Court of
Appeal decision are very considerable. For example, it
now means that nowhere in New Zealand law is there any
capacity to censor hate speech on the basis of
religious belief. That ground is not covered under the
anti-vilification provisions of the Human Rights Act
1993, and religious hatred is much less likely to pass
through the gateway in the FVPC Act than is hatred
directed against homosexual men, which - with respect
to the Court - does always pivot on matters to do with
sexual behaviour.
The
Foundation totally misconstrues the statutory role of
the FVPC and uses a series of non-sequiturs to advance
its case for a rewrite of the Act. It erroneously
assumes that a class of people based on "sexual
orientation" is comparable to one based on "religious"
belief and that the FVPC can somehow be legitimately
used to offer protections against vilification of both
groups in cases where none of the five existing
"jurisdictional gateway" matters are present.
A
similar negative 'spin' on the Court of Appeal's
decision, aimed at advancing the cause of "hate speech"
legislation is found in the Film and Literature Board of
Review's more recent decision which reclassified the
videos as "unrestricted".
Following the Court of Appeal's
interpretation of the effect of the [jurisdictional]
"gateway" it is clear that the censorship legislation
does not provide directly a remedy for hate speech
under New Zealand law. An indirect remedy is provided
only in certain circumstances, when the hate speech
can be directly linked to one of the 'gateway'
components of s.3(1), namely sex, horror, crime,
cruelty or violence. [par. 45, p. 19. Decision
No. 3/2001]
Here the
Board, having reversed its banning order, still clings
to the view that the videos constitute "hate speech".
This is not just an implicit assumption. It is stated as
a fact: "Put simply, the subject
publication contain significant elements of hate speech"
(par 44, p. 19). This 'fact', more correctly described
as an erroneous interpretation, is given as a summary of
a quote made by Judge Thomas concerning the videos (par.
43, p. 18). However, the Board's 'interpretation' of J.
Thomas runs counter to a statement they quote from his
report in par. 68 (p. 6):
Nor on the
other hand, do I wish it thought that I accept the
submissions of those who perceive the videos to be
blatant bigotry or hate propaganda.
In short,
the Board members who took nine months to come up with
their decision, blatantly misrepresented the position of
Thomas J. More importantly, not one of the High Court
Judges or any of the Court of Appeal Judges ever
suggested in their decisions that they considered the
videos constituted "hate speech" or "hate propaganda".
Former Chief Censor, the late Kathryn Paterson, in her
decision, which first classified the material R18,
argued that the publications did not constitute "hate
material".
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Background to the Court of Appeal
Decision Living Word v HRAG
-
Submission to FLBR by the OFLC on the Video recording
entitled AIDS-What You Haven't Been Told
The Classification Office sought the
assistance of the Human Rights Commission under section
21 of the Act. In forming an opinion of the publication
on which to base the classification decision. Two
representatives of the Human Rights Commision1
viewed the publication at the Classification Office on
19 June 1996. The report states:
Having
examined the publication, the Classification Office
gave consideration to the criteria set down in section
3 of the Act. The issues of particular relevance under
the test to AIDS- What You Haven't Been told
were:
It is very significant that at the
outset of this classification process, the OFLC had
imported into the FVPC (1993) a new ground - namely
"hate literature" - as a possible basis for classifying
a publication "objectionable". It also treated the mere
discussion of homosexual behaviour and safe sex practice
(as opposed to any explicit depiction of these topic) as
grounds for accepting the videos through the
jurisdictional gateway" of "sex". The Court of Appeal
ruled this approach to be erroneous in law.
The Classification Office concluded
that the publication is not considered to fit the
definition of "hate literature" as outlined in the
Indecent Publications Tribunal decision number 160/93,
and advocated by the Human Rights Action Group.
The Classification Office believed that the moral
message presented by the publication was extensive and,
although emotive and persuasive, it was not considered
to impact with such convincing authority or vitriol as
to represent members of the homosexual community or
people living with HIV/AIDS as being inherently inferior
to other members of the public. The bias in the
Fundamentalist Christian message . was not borne of fear
and hatred.
-
Summary of Consultations (Record of Assistance Section
21, 19 June 1996)
This was held
between seven representatives of the OFLC, including
Chief Censor of Film and Literature, the late Kathryn
Paterson and Lois Hutchison, Deputy Chief Censor, and
the two consultants from HRC.
Submissions
made to the Classification Office under s20 by HRAG
"stated they are opposed to the
recording; believe it incites hatred toward gays,
lesbians, and people living with HIV/AIDS . and could
lead to a campaign of hatred against a section of the
community" (p. 3).2
In the Office
records (8/7/96) of discussions with the consultants
concerning the video Gay Rights one of them
stated she "was not sure that the
video recording was an example of hate speech".
In discussions of the video AIDS one considered
the video "was a clear example of hate speech".
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The Jurisdictional "Gateway"
and the NZ Bill of Rights Act 1990
The High Court interpreted the
words "such as" in s 3(1)
of the Act as:
"suggest[ing] the generality of the approach and the
possibility of a publication which referred to none of
the specified items still being the subject of
classification as objectionable. Indeed the inclusion
of references to s. 21(1) of the Human Rights Act
1993, presupposes that some publications could avoid
references to any of the matters which are used by way
of illustration in s. 3(1) and still be determined as
objectionable and within the jurisdiction of the
Board. The list may thus be added to but the reference
to s. 21(1) more explicitly justifies the inclusion of
a topic of sexual orientation, as it does for race and
gender."
The High Court took the view that
a publication's reference to topics relating to s 21(1)
matters is sufficient to bring it within s 3(1).
However, if matters of "sexual orientation" provide an
additional ground of classification as "objectionable",
then all the other matters listed in s 21(1) would also
provide grounds, including employment status, political
opinion and family status as well as race and gender.
The Court of Appeal rejected the High Court's support of
the Board's position that "section
3(3)(e) of the Act is a new ground of
classification as "objectionable" not available under
previous censorship legislation." (s. 3.3 AP No.
26/98).
A proper application of s 14 of
the NZ Bill of Rights Act 1990 [BOR] would have
identified the critical words in s 3 whose
interpretation and application was to be discerned in
the light of the BOR. And when that exercise is
undertaken, it can be seen that the interpretative
impact of s 14 is much greater here than in Moonen.
For Moonen was all about s 3(2) which deems
certain publications objectionable. Here, however, the
Board is required to exercise a discretion about
classification, and the relevant criteria set out in s 3
include:
"the
extent and degree to which, and the manner in which,
the publication" [s 3(3)]
represents
(whether directly or by implication) that members of
any particular class of the public are inherently
inferior . [from s 3(3)(e)]
"in such a
manner that the availability of the publication is
likely to be injurious to the public good."
[from s 3(1)].
In short, deciding this case
involved at least these three points of application of
the BOR. At each step the Moonen methodology
requires adoption of such "tenable meaning and
application as constitutes the least possible
limitation."
The Court of Appeal ruled that
there is no mandate for holding that s 19 trumps s 14.
The Government is here restricting the freedom of the
appellant. That is what engages s 14. Government is not
discriminating against the respondent or gay people in
general. There is no person before the Court who may
claim s 19 as a shield against government action. The
only person in this case that may invoke a right in the
BOR is the appellant. The appellant is the person whose
freedom of expression is the subject of abrogation by
Government.
The Board's approach assumed that
the rights of persons under s 19 to be free of
discrimination are, as it were, "in play". That
assumption, if examined rests on a very complex and
unarticulated chain of suppositions. At its simplest,
the implicit argument appears to be that:
- If the videos are shown, then .
- some members of the
public .
- may in the future, .
- if they watch the videos
.
- develop attitudes that
- may lead to acts of
discrimination...
But these discriminatory acts,
even if they were to happen, would be perpetrated by
private persons and not by Government, and hence by
persons who are not even bound by the BOR to refrain
from discrimination.
A publication may incite
discrimination, it may condone it, or it may condemn it
. but the publication itself cannot discriminate. Even
if a publication could discriminate, it would not be a
Bill of Rights matter unless it was the Government's
publication. A video cannot discriminate. Rather, the
highest it can be put is that a publication may
contribute to a climate that allows the formation of
discriminatory attitudes and thence to acts of
discrimination by private persons. To say that a
publication may contribute to formation of attitudes
that may lead to acts of discrimination by private
persons is a long, long way from holding that s 19 of
the BOR is involved. Section 19 is a right for persons
to be free from acts of discrimination by Government.
The BOR applies, by s 3, "only to acts done" by the
three branches of Government and bodies performing a
public function.
The Living Word case is not
a case where two rights are in conflict, such that one
can prevail. This is a case about a right being limited
in pursuit of a legitimate governmental interest -
preventing the dissemination of publications that are
likely to cause harm to some people at the hands of
other people. It is not a clash between rights. The
state does have an interest in promoting laws that are
designed to protect persons from private acts of
discrimination. The state's interest in doing that is
readily accommodated within BOR methodology: that is to
say, the legislative measures designed to advance the
societal interest must, if they infringe rights in the
BOR, be considered in terms of s 5. That requires the
legislative objective to be identified and weighed in
the balance with the affected right, so as to ensure
that there is rationality and proportionality between
objective and means. This is covered in Moonen.
Freedom of expression has been of
pivotal importance in the advancing of equality. If
advocates of equality for gay and lesbian persons had
not had freedom of expression to advance those claims,
their cause would have been impeded, and perhaps even
prevented completely.
The legal theorist Mari Matsuda
argues that states can and should enact laws punishing
"hate propaganda" based on race. This has had no
acceptance in any American case, nor is it reflected in
any legislation. The NZ position under FVPA is certainly
different from that in the USA, but there is no basis
for saying "s 3(3)(e) enacts Ms Mari Matsuda's Critical
Race Theory".
The Board was wrong to say that a
right against discrimination "trumps" freedom of
expression, even in the limited context of s 3(3)(e).
The Board's decision rested on a flawed approach to the
BOR, the same flaw the Court exposed in Moonen.
It proceeded on the basis that the right to freedom of
expression did not call for consideration when applying
the FVPA.
The Board placed considerable
emphasis on determining that the videos contain
"misinformation". They wrote:
"Advocacy
of an opinion, no matter how offensive the opinion is,
ought not to be the subject of censorship. These
videos [,] however [,] go beyond mere advocacy of an
opinion. They contain opinion based on
misinformation of the nature described above,
which is targeted by s 3(3)(e) of the Act."
"One member
of the Board wishes to record her concern that the
Board's decision should be interpreted as precedent for
suppressing mere opinion, as opposed to "opinion plus
misinformation.". The inference from that
passage is that, for the Board as a whole, the key to
the decision was indeed that there was "opinion plus
misinformation".
It is inconsistent with s 14 of
the BOR to discount the value of expression and hence to
censor it by reason of it being labelled
"misinformation".
The rationales historically
offered for freedom of expression are:
- it is instrumental to the
search for truth
- it is a prerequisite to
democratic governance
- human dignity and autonomy
requires it, regardless of any instrumental value it
may have.
It is necessary to pick and choose
amongst these rationales. Each explains facets of the
right.
In the "marketplace of ideas"
metaphor "truth" is contestable. The FVPA is not
directed at policing "truth" or opinions. It is about
harm.
The videos concern debatable
matters that are relevant to the ordering of society.
The Gay Rights video is entirely about law reform
proposals of the very type that exercised the minds of
New Zealanders a mere eight months before the videos
were referred to the Labelling Body (that is, adding
sexual orientation to the Human Rights Act). The Board
banned them describing the views advanced as "redundant"
in the light of the passing of he Human Rights Act. But
surely views are allowed to remain in play, and passing
a particular law does not render opposing views
redundant. The labelling of a view as "redundant" by the
state's censoring body is a chilling thought, as if
those who hold such views are legitimately excluded from
seeking to influence the laws by which they are
governed.
The FVPA does not deal in the
ascertaining of truth or the suppression of error.
There are areas of law - fraud,
trade misdescriptions, defamation, etc - where
expression may be punished for being false. But this is
wholly different. Falsity must in those cases be proved.
The reverse onus applies in defamation, but when put in
issue there is still a requirement of proof.
The question the AIDS video
presents is whether criticism of behaviour and sexual
practices can properly be conceived as ascribing
"inherent inferiority." Criticism is only levelled at
behaviour, not to homosexual persons. The AIDS
video explicitly exhorts Christian persons to care for
AIDS sufferers. The Gay Rights video expresses
the view that homosexual persons already have equal
rights, and that they are seeking "special rights".
If moral judgments, or indeed any
judgments, or the behaviour or views of a
person or group are to count as ascribing "inherent
inferiority" to that group, then robust moral and
political discourse will become impossible. On a variety
of topics, the disparagement of views intimately
connected with a group can always be interpreted as
ascribing inherent inferiority to the group. For
example, criticisms of the "fundamentalist religious
right" and their "bigoted views" could be portrayed as
ascribing inherent inferiority to persons on the basis
of their religion, or heir political opinion (both
prohibited grounds of discrimination in s 21 of the
Human Rights Act).
New Zealand and international
jurisprudence on discrimination law is coming to rest on
concepts of dignity, worth, and equal respect. A
distinction is "discriminatory" if it ascribes less
worth, dignity and respect to one group than others.
"distinctions which treat certain persons as being
less worthy of concern, respect and consideration on
the basis of personal differences which are
irrelevant, in effect treat them as second class
citizens."
3
s 3(3)(e)must be taken as aimed at
attribution of inherent inferiority when advanced as
justification for subordination and ill treatment. It
aims to restrict publications that strive to legitimate
and justify the degradation, dehumanising, and criminal
actions against a group, through arguing for inherent
inferiority as a reason or justification for that
treatment.
The conclusion of the AIDS video,
not addressed in the Board Decision, is an exhortation
to Christian churches to:
"Make a
response by funding various Christian initiatives with
AIDS, by funding a massive hospice movement throughout
the country, throughout the nation, so that we are
continually demonstrating that we care. We're not
merely moralising, we do believe there's a better way
to live than this, we do believe that promiscuity
leads to this sort of thing [AIDS], but we're
demonstrating our care, and we're demonstrating our
love".
The aim of the videos is not to
advance a thesis of inherent inferiority. It is the
opposite, that all persons deserve (as the video makers
see things) better than a lifestyle that may lead to
death. The video is premised on the worth of all
persons, and attributes inherent inferiority to no one.
The legislative aim of s 3 of FVPA
when invoked in relation to s 3(3)e is not to seek to
prevent people developing certain attitudes. Rather, the
aim is the prevention of harm to groups sharing
characteristics in the Human Rights Act. The "harm"
rationale animates the Morris Report on Pornography that
led to the FVPA. As indicated that harm should not be
pitched so low as "attitude formation"; s 13 protects
"freedom of thought, conscience, religion and belief".
The harm to be prevented must be at least at the
threshold suggested by ss 61 and 131 of Human Rights
Act.
Section 61 of the Human Rights Act
does prohibit as unlawful discriminatory publications or
broadcasts but only on the ground of the colour, race,
or ethnic or national origins of that group of persons.
The Film and Literature Board of Review noted in its
decision of 31 May 2001 in the Living Word case
that it wished "to highlight what
it considers to be a gap in our law" in that
other groups in Society other than those listed in
section 61, do not have the this protection of the law
from "hate literature". Of particular concern to the
Board are publications "likely to
excite hostility against or bring into contempt"
(see section 61 [c]) a group of people in society
defined by "sexual orientation".
They suggest that the extension of the HRA to
"include other grounds"
beyond race could include 'religion'.
The concept of "hate literature"
does not fit within the purview of the FVPA. It was
never the intention of legislators to extend the reach
of the censorship act to stifle the expression of
opinions on sexual preference and lifestyles (hateful or
otherwise). The law cannot offer special protections to
classes of people not defined by inherent and intrinsic
qualities such as race etc. This is one of the main
arguments developed in the video GayRights. If special
rights of protection are to be extended to groups based
on "sexual orientation" then what about groups based on
living arrangements such as commune dwellers and
hermits? What about the rights of the obese, left-handed
people, people with shared phobias etc.
As "hate literature" is not
defined in New Zealand statute or common law, it is
puzzling why those so unhappy about the finding of the
Court of Appeal in the Living Word case, find it
so necessary to move towards incorporating this wooly
concept into the FLCA. They also fail to recognise that
it is protected by the freedom of expression in s. 14 of
BORA. It can only be restricted if it can be
demonstrably justified in a free and democratic society
as in s. 5 of the BORA.
In a test case which came before
the Indecent Publications Tribunal involving the book
Exposing the AIDS Scandal (Decision No. 160/93)
those attempting to censor free speech and unhappy
at the way those of a certain "sexual orientation" were
portrayed, failed to accomplish their mission. Like
those who have battled the videos, they did not
understand the way the BOR interacted in matters of
censorship. The prospect of a specialist tribunal
dealing with censorship acting to control and define
what constitutes "hate literature", is a chilling
prospect. There are other more productive and effective
ways of curbing violence and discrimination against
minority groups.
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Summary
Subsection (1) of section (3) of the Films, Videos, and
Publications Classification Act 1993, (FVPC) prescribes
what must be the subject matter of a publication if it
is to be classified as "objectionable" and "sets
boundaries of content-based regulation of speech" (Living
Word p. 582 line 21). The boundaries are set as
"matters such as sex, horror, crime, cruelty or
violence". The Court of Appeal held in Living Word
that those words did not extend to include the types of
speech prohibited by the Human Rights Act 1993 section
21(1). We disagree with the view that this constitutes a
"narrow interpretation". The intent of the Act was fully
complied with in the Court of Appeal's decision. Nothing
in the decision is inconsistent with the explanatory
note to the Bill that became the Act.
Section 3(2) of the Act should not be exempt from the
Bill of Rights provisions. If Parliament wishes to
rectify any ambiguities or weaknesses it sees in this
section it needs to improve the wording of the Act. For
example the words "promotes", "supports",
"exploitation", "children" and "young person" could be
defined.
Section 3(3)(e) of the Act is already linked to a
"gateway" in Section 3(1) of the Act in that it is
concerned with "the context in which a publication deals
with particular subject matter". ((1992) 532 NZPD
12760). Subsection (e) is one of the criteria Parliament
prescribed as forming the "context" of the "particular
subject matter". The context cannot be elevated to
constitute the "subject matter" as ruled by the Court of
Appeal in Living Word.
We are
strongly opposed to allowing the Office of Film and
Literature Classification to classify "hate speech",
whether it be done by widening the jurisdictional
"gateway" of section 3(1) of the FVPC, or by more
strongly linking Section 3(3)(e) to the "gateway" via an
amended Human Rights Act. The concept of "hate
literature" does not fit within the purview of the FVPA.
It was never the intention of legislators to extend the
reach of the censorship act to stifle the expression of
opinions on such matters as sexual preference and
lifestyles (hateful or otherwise as in Living Word).
The law cannot offer special protections to classes of
people not defined by inherent and intrinsic qualities
such as race etc. This is one of the main arguments
developed in the video GayRights/Special Rights.
If the "special rights" of protection are to be extended
to groups based on "sexual orientation" then what about
groups based on living arrangements such as commune
dwellers and hermits? What about the rights of the
obese, left-handed people, people with shared phobias
etc.?
As "hate
speech" is not defined in New Zealand statute or common
law, it is puzzling why those so unhappy about the
finding of the Court of Appeal in the Living Word
case, find it so necessary to move towards incorporating
this wooly concept into the FLCA.
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Recommendations related to
other terms of reference of inquiry
The Society is
recommending that the Minister of Internal Affairs, the
Hon George Hawkins do the following:
-
Ensure
that the constitution of the Film and Literature Board
of Review reflects the multicultural nature of NZ
culture.
-
Ensure
that the Chief Censor and his/her deputy, and all
members appointed to the Board are committed to, and
have demonstrated from their public service record, a
commitment to enhancing/preserving the "public good".
The intention of Parliament is clear from the
Classification Act: the Office and Board have a
statutory responsibility to protect the vulnerable
(especially children and young persons in the case of
R 16 and R 18 classifications) from "objectionable"
publications; and thereby preserve/enhance "the public
good".
-
Appoint
a deputy chief censor as soon as possible, as he
Office has been operating for almost 3 years with only
a one-person executive, rather than the two (as
required under the Act).
-
Involve the
Commissioner for Children and his/her Office in the
censorship procedure and in all classification
decisions that go before the Board of Review which
impact upon children and young persons.
-
Incorporate a
multicultural representative group of citizens and
community leaders into the monitoring of censorship
offices activities. This group would report on a
regular basis to the Minister of Internal Affairs and
have particular responsibility for scrutinising the
activities of the Board, which currently meets without
producing any records of its activities (e.g.
minutes).
-
The quantity,
quality and timeliness measures for the Board must be
included in a clear Memorandum of Understanding or in
legislation to avert the delays
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David Lane
Secretary
Society for Promotion of Community Standards
APPENDIX
Terms of Reference of
Inquiry
The committee intends to
inquire into:
The capacity of the Films, Videos,
and Publications Classification Act 1993 (the Act) to
deal with the impact of new technology on the
classification process set out in the Act, in
particular, the impact of the Internet on the
classification process including the transmission of
live performances and related activities.
The adequacy of the complaint
procedure under the Act, and the powers of the Chief
Censor to deal with the complaints received by the
Office of Film & Literature Classification (the Office).
In particular, whether the process by which publications
are submitted for classification under the Act is
adequate and whether the procedure for lodging a
complaint about a publication is adequate given that the
present Act requires a citizen to make a complaint to
the Office before the Chief Censor can act.
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
Moonen v Film and Literature Board of Review, adequately
carry out the intent of the Act.
Whether or not the Bill of Rights Act
1990 should apply to all matters prescribed in Section
3(2) of the Act, or whether Section 3(2) of the Act
should state that notwithstanding anything in the Bill
of Rights Act 1990, publications that promote the
matters in that section are "objectionable".
The issues to emerge from the Court
of Appeal's decision in Living Word Distributors Limited
v Human Rights Action Group as to whether:
-
Section 3(3)(e) of the Act should
be linked to a "gateway" in Section 3(1) of the Act,
and if so, the extent to which this Interpretation
would defeat the intent of the Act.
-
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".
Issues surrounding the operation of
the provisions that relate to the public display of a
publication (that includes art), in particular:
-
official labels for all
publications classified by the Office
-
the premises/part of premises
definition
-
display conditions on unrestricted
publications.
Whether quantity, quality and
timeliness measures for the Board of Review be included
in a Memorandum of Understanding or in legislation, and
if an inquiry into the means of "maximising the
efficiency and effectiveness of the Act" should be
extended to all three bodies involved in rating and
classification.
The definitions of "publication", and
to take into account the difficulty of the making
excisions to digital publications. This may allow for
the partial examination of digital publications for
classification and remove the power of the Office to
request excisions.
The definition of "broadcasting" in
the Broadcasting Act 1989 in relation to the matters
referred to above.
The concept of legislating that
trailers shown before a feature should be for films
rated no higher than the following feature.
The potential for and appropriateness
of a cross-rating system, and the desirable
characteristics of such a system.
The viability of creating one media
regulatory agency.
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2
HRAG stated "the Board correctly found that the
videotapes: to an unacceptable extent, degree and
manner, represent both directly and by implication
that homosexual men and people with HIV, being
respectively classes of people protected from
discrimination by s21(1)(m) and s21(1)(h)(vii) Human
Rights Act 1993 ate inherently inferior to other
members of the public by reason of their membership
of the relevant class."
3
Thomas J in Quilter v Attorney-General [1998] 1
NZLR 523.
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