Gerald Moonen

New Zealand
30th April 2001

Submission to the
GOVERNMENT ADMINISTRATION COMMITTEE
for an inquiry into the operation of the
Films, Videos, and Publications Classification Act 1993
and related issues.

Dear Committee,

Harmless or criminal?

We are all created with sexual instruments, which at any age can give harmless pleasure to ourselves or our sexual partners. Not everybody regards sexuality or sexual expression as something that is always innately evil, wrong or criminal. No government has the right to interfere with this basic human right of consensual sexual expression. Where is the harm? This law should only be concerned about harmful therefore criminal aspects of sexual expressions, and through the Bill of Rights protects harmless consensual sexual expressions.

Wrong or harmful?

Laws that regulate us, must at all times be based on preventing actual, not imagined harm.

"It must be "injurious to the public good". In the light of the requirements set out by the Court of Appeal in Collector of Customs v Lawrence Publishing Co Ltd. [1996] 1 NZLR 404 that there be "discernable injury" or "a demonstration that any relevant material has a capacity for some actual harm" (p 409). In the words of Justice Woodhouse P in that judgement (p409):

The question is what constitutes harm? Some of the present law is formulated with regard to what some people may regard as ‘wrong’ as opposed to what constitutes ‘actual harm’.

WRONG is not the same as HARM, although often a deceptive bridge is built with the false reasoning that "if I think it is wrong therefore it must be harmful". This is a basic flaw, but this reasoning has been employed in parts of this law and in the way the censor has applied it.

Wrong is a moral concept that goes up and down with the lengths of the skirts. Sexual morality is for ever changeable and cannot be legislated for, unless one group of ‘believers in wrong’ wants to criminalise people who have a different sexual morality. This is to be avoided at all costs. To protect us from moral disagreements and conflicts we have a Bill of Rights that advocates tolerance. It is not that long ago that masturbation, homosexuality and nudity were regarded by certain people as wrong, and some of this is still reflected in the present legislation. Harmless sexual expression has an ever changing pattern that nobody has the right to misuse by criminalising people who have a different belief about these things.

However, we all can agree about the need to combat something that is actually harmful. In the context of this law we are discussing, the depictions of nudity is regarded by certain people as wrong, but it cannot possibly be regarded as harmful (except for catching a cold!). Depictions of sex or sexual expression by young people may be regarded as wrong, but is it harmful?

Distinction of Privacy..

In this present law there is no distinction to what one possesses or does in one’s own privacy as is protected by the Bill of Rights. Surely someone in privacy, in front of his own computer downloading pictures for his own use, is not injurious to the good of the country! Where is the harm?

Efficiency and fairness.

There are some basic flaws in this law, that give rise to confusion and different interpretations by the present censors. In my case nearly 400 different photos were originally declared "Objectionable" by the Office of Film and Literature Classification. More than SIX YEARS LATER, 900 pages of disclosure from the crown prosecutor and a lot of the taxpayer’s money there are about 37 left of which the "Objectionability" still has to be established. This means that the judgements of different official judges differ as much as 90%, which is an expression of how difficult this law is to interpret.

Therefore I agree with the intention of this inquiry that the definition of "Objectionable" needs refining. With the vaguely defined definition of "Objectionable" the law enforcement system lies open to misuse and abuse. The word "exploitation" 3(2)a also gives rise to confusion, for one person’s perception of exploitation is not the same for another. Are any and all sex acts exploitation? According to the enforcing of the present law by the censors that is so.

 For instance, a 13 year old boy uses a computer camera to take a photo of himself. He posts it on the Internet making it available to many millions of people. The boy is masturbating. Objectionable? The boy has performed a sex-act that is natural for him, and has given himself consent (i.e. freely chosen) to take this picture of himself. It is hard to see what harm that such a picture may produce. Or could it be that the photo of the sex act was judged to be "wrong" (rather than "harmful") by a censor with puritanical tendencies.

Bill of Rights.

SECTION 13:
Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.

SECTION 14:
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

SECTION 6:
"Whenever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred.

This bill has until now mostly been ignored, even though every new Act in New Zealand must be in harmony with the Bill of Rights (This is safeguarded by the Attorney General). Our Bill of Rights has International commitments, and safe-guards the rights and freedoms of the individual and every New Zealand citizen. In my opinion this Bill ought to be enshrined as the basis for a Constitution.

To make a Censorship Act override the Bill of Rights is no small thing. Should Parliament create a censor who, based on the changeable moral puritanical concept of "wrong", persecutes and criminalises citizens who are of a more liberal mind? Or should the judgement be on the actual harm the Bill is trying to prevent?

This is exactly what the Films, Videos and Publications Classification Act and Bill of Rights are about. These Acts have been designed to protect the freedoms all of us are entitled to and to prevent whatever is actual harm. These laws are about tolerance for others. If, for instance, there is only one liberal for every 1000 conservatives, then the rights and freedoms of the one liberal must be respected as much as those of 1000 conservatives. To tamper with the Bill of Rights is going beyond our international obligations and harms the freedoms for which our soldiers gave their lives.

History teaches us that the first thing fascists want to do is to limit hard won freedoms by means of censorship.

Age discrepancy.

Article 127 of this bill states that it is a crime to show "Objectional" material to a person under 18, while this person has for two years been doing all the thinkable and unthinkable ‘things’ in his bed. The least that ought to be done is that the age of 18 should be lowered to the legal age of consent.

is still at an early stage of its development. No doubt there are aspects that have not been regulated and are thus out of control. One of these is the availability of erotic material. It is important to keep the words ‘freedom’ and ‘privacy’ in mind, but freedom also means that this freedom does not infringe on the freedom of others.

Unwanted erotic spam in one’s e-mail or while searching the net, is a gross infringement of one’s privacy and conflicts with the way I would like my children to be brought up. I would like to be in control to what I receive or want to see.

I would like all erotic material to be available at a certain site, set apart from the rest of the internet, so that it is available for people who want it and not forced down the throat of people who do not want it. International agreements need to be made to control people who go outside such guidelines. To criminalise people who, out of their free will, engage in looking at harmless erotica is not the way to go about it. This way the Bill of Rights is respected.

The censorship charges

that are levied are harming the freedoms as guaranteed by the Bill of Rights. It is un-economical to import ‘alternative or festival’ type videos. The censorship charges, with one price for all, outstrip the rental charges and New Zealand citizens are the poorer for it. Charge cheaper fees for less popular movies or videos.

As to the Section 3(3)(e) of the Act should be linked to a "gateway" in section 3(1) of the Act I can only be affirmative, for this supports the ‘actual harm’ prevention as advocated above.

As an example of how things have got out of hand, I include the above OBJECTIONABLE photo of my daughters, taken while they were playing in the garden. It is their grandmother’s favorite photograph. The justifying comment of the Office of Film and Literature classification for declaring it objectionable was:

"Four frames depict a boy and a girl [they are two girls!] in foliage and flowers beside a river. In three of the frames the children are semi-naked from the waist up, their lower torsos are hidden by foliage".

At the time I read that, I wrote: "I was disgusted, and I find it hard to believe what lengths the censor will go to, in order to secure a conviction and to create something seedy from a beautiful photograph. Not only was I angry and disgusted, but I was insulted by such degrading remarks. I am also insulted that my children and my family life have been dragged through the depths of a filthy puritanical mind. To insult me even more, the debasing remarks from the censor’s mind are turned against me and my work by criminalising me for it! This is nothing more than puritan comstockery.

The above is only one example of how much the OFLC is out of kilter with the true meaning of the law. The phrase "their lower torsos are hidden by the foliage" only expresses the bias and puritanical mind of the person making this judgement. The genitals cannot be seen, but the censor is sure that they must be there, and therefore it is objectionable!

I would like to see the OFLC prove that this photograph of my daughters is ‘injurious to the public good’, and I am convinced that not a single one of my photographs are capable of doing any injury. If so I would like to know how".

Barrister Tony Ellis in a submission about my case to the Film and Literature Board of Review:

"Numerous photographs of heads and shoulders have been classified as objectionable, which is so perverse that there could not be a photograph album in the country containing such photographs that would not rate as objectionable.

The totality of the decisions made are so absurd that the decisions have been made in complete absence of any evidence [of harm] that they must have been made for reasons of bias or irrationality."

In my opinion the above is a perfect description of the misuse and abuse earlier mentioned in my submission (Clause 4 Efficiency and Fairness). The censor is looking through the "I think it is wrong" glasses rather than the "What is the actual harm" glasses. This is a misinterpretation of the law, and this misinterpretation makes criminals of ordinary citizens.

May you be guided by honesty and wisdom,

Yours faithfully,

Gerald Moonen

GOVERNMENT ADMINISTRATION COMMITTEE

22 March 2001

Terms of reference for an inquiry into the operation of the Films, Videos, and Publications Classification Act 1993 and related issues

That the committee inquires into:

1. 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.

2. 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.

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 Moonen v Film and Literature Board of Review, adequately carry out the intent of the Act.

4. 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".

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

(a) 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.

(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".

6. Issues surrounding the operation of the provisions that relate to the public display of a publication (that includes art), in particular:

(a) official labels for all publications classified by the Office

(b) the premises/part of premises definition

(c) display conditions on unrestricted publications.

7. 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.

8. 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.

9. The definition of "broadcasting" in the Broadcasting Act 1989 in relation to the matters referred to above.

10. The concept of legislating that trailers shown before a feature should be for films rated no higher than the following feature.

11. 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.