Table of Contents

Para No

 

Introduction [1]

The legislation [5]

Moonen 1 [7]

Promotion and support: the Board's decision [17]

Promotion and support: the High Court decision [20]

Promotion and support: conclusions [21]

Irrationality and inadequate reasons [24]

s23: classification as restricted [29]

Failure of the 1993 Act to define children and young persons [36]

Result [41]

 

 

This appeal by Mr Moonen under the censorship provisions of the Films, Videos & Publications Classification Act 1993 ("the 1993 Act") is a sequel to Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 ("Moonen 1"). In that judgment the five Judge court concluded that the High Court (and the Board of Review) had erred in law in their approach to the role of the Bill of Rights in the interpretation and application of the provisions of s3(2) of the 1993 Act. That error had affected the Board's conclusions that the book in question, called The Seventh Acolyte Reader, and certain photographs were objectionable within the meaning of s3(2). The appeal was allowed, the classification of the book and photographs as deemed objectionable under s3(2) was set aside, and the Board was directed to reconsider the classification of those publications in accordance with the law as expressed in the court's judgment (para [40]).

The Board reviewed all the material previously classified by it as objectionable, i.e. the book, 35 photographs from what was described as "the Swiss roll", and 39 photographs from the other rolls. Reconsideration of all 74 photographs was undertaken because of some uncertainty as to which photographs had previously been found to be objectionable under s3(2), and so were required by this court to be reconsidered by the Board, and those which had been classified under s3(3) and were not required by this court to be reconsidered; and, as well, because Mr Moonen sought reconsideration of all 74. In the result, two photographs previously classified as objectionable were classified unrestricted. Thirty-seven photographs were classified objectionable under s3(2)(a) and 35 were classified as objectionable under s3(3). And the book was classified objectionable under s3(2)(a).

Mr Moonen's appeal on law to the High Court was dismissed by a Full Court (Heron J and Wild J) on 2 October 2001. Mr Moonen now appeals under s70 to this court, contending that the final determination of the High Court in respect of the appeal from the Board to the High Court is erroneous in point of law.

Mr Ellis advances five appeal points. They are, in essence: (1) failure properly to apply s14 of the Bill of Rights as directed in Moonen 1; (2) incorrectly applying s23 to the book and the photographs; (3) irrationality of the decision that the book and photographs were objectionable (and an associated reference to the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography which we find tangential and not requiring discussion); (4) failure of the 1993 Act to define the statutory expressions "children" and "young persons" and the legal consequences; and (5) failure to give reasons.

 

 

The immediately relevant provisions of the 1993 Act are ss3, 4 and 23. The material provisions of those sections for present purposes read:

3 Meaning of "objectionable"

(1) For the purposes of this Act, a publication is objectionable if it describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good.

(2) A publication shall be deemed to be objectionable for the purposes of this Act if the publication promotes or supports, or tends to promote or support,—

(a) The exploitation of children, or young persons, or both, for sexual purposes;

...

(3) In determining, for the purposes of this Act, whether or not any publication (other than a publication to which subsection (2) of this section applies) is objectionable or should be given a classification other than objectionable, particular weight shall be given to the extent and degree to which, and the manner in which, the publication—

(a) Describes, depicts, or otherwise deals with—

...

(iv) Sexual conduct with or by children, or young persons, or both:

...

(b) Exploits the nudity of children, or young persons, or both:

(4) In determining, for the purposes of this Act, whether or not any publication (other than a publication to which subsection (2) of this section applies) is objectionable or should be given a classification other than objectionable, the following matters shall also be considered:

(a) The dominant effect of the publication as a whole:

(b) The impact of the medium in which the publication is presented:

(c) The character of the publication, including any merit, value, or importance that the publication has in relation to literary, artistic, social, cultural, educational, scientific, or other matters:

(d) The persons, classes of persons, or age groups of the persons to whom the publication is intended or is likely to be made available:

(e) The purpose for which the publication is intended to be used:

(f) Any other relevant circumstances relating to the intended or likely use of the publication.

4 Whether publication objectionable a matter of expert judgment

(1) The question whether or not a publication is objectionable is a matter for the expert judgment of the person or body authorised or required, by or pursuant to this Act, to determine it, and evidence as to, or proof of, any of the matters or particulars that the person or body is required to consider in determining that question is not essential to its determination.

...

23 Examination and classification

(1) As soon as practicable after a publication has been submitted or referred to the Classification Office under this Act, the Classification Office shall examine the publication to determine the classification of the publication.

(2) After examining a publication, and having taken into account the matters referred to in section 3 of this Act, the Classification Office shall classify the publication as—

(a) Unrestricted; or

(b) Objectionable; or

(c) Objectionable except in any one or more of the following circumstances:

(i) If the availability of the publication is restricted to persons who have attained a specified age:

(ii) If the availability of the publication is restricted to specified persons or classes of persons:

(iii) If the publication is used for one or more specified purposes.

(3) Without limiting the power of the Classification Office to classify a publication as a restricted publication, a publication that would otherwise be classified as objectionable may be classified as a restricted publication in order that the publication may be made available to particular persons or classes of persons for educational, professional, scientific, literary, artistic, or technical purposes.

Sections 5, 6 and 14 of the Bill of Rights provide:

5 Justified limitations

Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

6 Interpretation consistent with Bill of Rights to be preferred

Wherever 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 to any other meaning.

14 Freedom of expression

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.

 

 

The critical and narrow question which the court directed the Board to answer concerned the test under s3(2)(a), namely, whether the publication "promotes or supports or tends to promote or support" the exploitation of children or young persons, or both, for sexual purposes. Speaking for the court, Tipping J said at para [29]:

 

[29] The concepts of promotion and support are concerned with the effect of the publication, not with the purpose or the intent of the person who creates or possesses it. The concepts denote an effect which advocates or encourages the prohibited activity, to borrow the words of Rowles J of the British Columbia Court of Appeal in an allied context in R v Sharpe (1999) 136 CCC 3d 97 at para 184. Description and depiction (being the words used in s 3(3)(a) of the Act) of a prohibited activity do not of themselves necessarily amount to promotion of or support for that activity. There must be something about the way the prohibited activity is described, depicted or otherwise dealt with, which can fairly be said to have the effect of promoting or supporting that activity.

The court observed that the Board's first decision contained no discussion of the meaning the Board had given to the concept of promotion and no discussion or reasons as to why it saw the book as promoting the exploitation of children or young persons for sexual purposes (para [26]). And it was not apparent from the Board’s decision "how the nine stories, which described sexual activity between men and boys under the age of 16, had the effect of promoting or supporting the exploitation of children or young persons for sexual purposes in the sense of advocating or encouraging that exploitation"(para [29]). Those of the photographs that were held to be objectionable under s3(2) were also to be reconsidered by the Board because the same statutory considerations applied to the book. The same risk existed that the Board's approach to the promotion or support issue was in error (para [30]).

But there was no such risk of error of law influencing the Board's classification of other photographs as objectionable under s3(3) (para [31]):

Questions of promotion and support did not arise. The board correctly identified the issue under s 3(3)(b) and considered the matters referred to in s 3(4). The board’s ultimate conclusion was that the photographs in question exploited the nudity of children and young persons to an extent, and in such a manner, that their availability, if only to Mr Moonen, was likely to injure the public good. That was a finding open to the board and within the scope of their expert judgment under s 4 of the Act. No Bill of Rights inconsistency can reasonably arise on this aspect of the case.

In short, the reconsideration which the Board was directed to undertake was narrow and specific. As the High Court put it in the judgment under appeal, the correct basis "involves treating the concepts of promotion and support as concerned with the effect of the publication, not with Mr Moonen's purpose or intent. The concepts denote an effect which advocates or encourages the prohibited activity. Description and depiction (the words used in s3(3)(a) of the Act) of a prohibited activity do not of themselves necessarily amount to promotion of or support for that activity. There must be something about the way the prohibited activity is described, depicted or otherwise dealt with, which can fairly be said to have the effect of promoting or supporting it."

Notwithstanding that direction, the Board canvassed censorship considerations under the legislation at some length, reiterating the view that child pornography should be outside the protection of s14 of the Bill of Rights. As well, the Board discussed other aspects of the court's judgment, including the five-step approach which the court had suggested might be helpful in other cases in weighing the relevant provisions of the Bill of Rights with those of the 1993 Act.

That, in turn, led to substantial discussion in the High Court about the five-step approach and no doubt influenced the Solicitor-General in seeking on the argument of the appeal to this court to have the court revisit and modify what we had said in Moonen 1. Mr Arnold's concern was that in discussing the application of the Bill of Rights in this field, and having stated that, if there were two tenable meanings, the one most in harmony with the Bill of Rights must be adopted, the court added, referring also to s5 as well as s6, that "An enactment which limits the rights and freedoms contained in the Bill of Rights should be given such tenable meaning and application as constitutes the least possible limitation" (para [16]). His submission was that to be Bill of Rights consistent the obligation is to adopt a meaning consistent with the placing of "reasonable limits" (s5) on the relevant Bill of Rights right or freedom, even if it is not the least restrictive meaning possible. In essence, a Bill of Rights consistent interpretation is one which involves the least possible reasonable limitation on a Bill of Rights right or freedom, rather than the least possible limitation.

We resisted the Solicitor-General's invitation. It was too late at this second appeal in the Moonen proceeding, where the second Board hearing and High Court appeal had been directed to Moonen 1 as it stood, to allow that argument. Further, it is a complex question. Arguably the answer is context dependent and would require extensive consideration of the application of s5 in relation to various provisions of the Bill of Rights as well as of s14, which was the immediate subject of the discussion in Moonen 1. (Consider, for example, unreasonable search or seizure under s21 of the Bill of Rights, arbitrary arrest or detention under s22, the bar on retroactive penal legislation under s26, and also Article 19(3) of the International Covenant on Civil and Political Rights).

We emphasise, too, that the five-step discussion in Moonen 1 was immediately prefaced by the statement (para [17]):

Although other approaches will probably lead to the same result, those concerned with the necessary analysis and application of ss 4, 5 and 6 of the Bill of Rights may in practice find the following approach helpful when it is said that the provisions of another Act abrogate or limit the rights and freedoms affirmed by the Bill of Rights.

Clearly, it was not intended to be prescriptive. "May" means may. The five-step approach may be helpful. Other approaches are open.

The only other passage in Moonen 1 requiring attention is para [39] relating to the availability of a restrictive classification in respect of a publication deemed objectionable under s3(2). The court saw that question as likely to be raised with the Board as part of its reconsideration of the book and photographs:

 

[39] The starting point is the definition of the word "classification" in s 2. For the purposes of the Act "classification" means the classification given to a publication under s 23 or s 55 or s 56. Sections 3 and 23 serve different purposes. Section 3 deals primarily with the meaning of "objectionable" as its heading states. Section 23, as its heading also states, deals with the classification process. A publication deemed objectionable under s 3(2) is not by dint of that deeming thereby classified as objectionable under s 23. The classification process under that section is a separate one. It necessarily requires a publication deemed objectionable under s 3(2) to be classified as objectionable, subject to any exception to that requirement within the terms of s 23 itself. It is at this point that s 23(3) comes into play. It provides the sole exception to the otherwise mandatory requirement that a publication deemed objectionable under s 3(2) be classified as objectionable. In terms of s 23(3) a publication that would otherwise have to be classified as objectionable may be classified as a restricted publication in order that it may be made available to particular persons or classes of persons for any of the listed purposes. It follows that the office or the board may classify a publication deemed objectionable under s 3(2) as restricted under s 23(3) if satisfied that it should be made available on the very limited basis envisaged by s 23(3). This approach to the interrelation between the provisions in question is fairly open on the language used and is one which should be adopted in terms of the Bill of Rights considerations discussed earlier. The alternative view that once deemed objectionable under s 3(2) a publication cannot be given a restricted classification under s 23(3) is semantically justifiable in light of the fact that s 3(3) and s 3(4) do make reference to classification, but that view would not recognise the purpose and effect of the Bill of Rights, and in particular s 6 thereof.

 

 

It is convenient to set out the crucial passages in the decision:

With regard to a classification under s(3)(2)(a), the meaning to be attached to "promotes or supports, or tends to promote or support" is of crucial importance. On this matter the Board carefully took into account the decision of the Court of Appeal ((1999) 5 HRNZ 224 at 236, 237) and the submissions of counsel. With regard to the book, the Board was of the view that the nine stories depicted sexual activity between men and boys under the age of sixteen in such a way as to give the impression that such activity is both normal and pleasurable and without adverse consequences or effects: in other words, that the stories would have the effect of encouraging those who might consider engaging in such activities. It was this very apparent normality of the depicted activity which, in the Board's opinion, brought the book within the terms of the statute. The Board did not consider it necessary to go beyond the plain and ordinary meaning of the words "[tend to] promote or support" in order to arrive at this conclusion.

...

[T]he Court of appeal expressed the view that "description and depiction ... of a prohibited activity do not of themselves necessarily amount to promotion or support for that activity". Clearly there are some instances where description and depiction do not promote or support an activity: a pamphlet depicting such activity in efforts to ban child pornography would be such an example. The Court of Appeal continued: "There must be something about the way the prohibited activity is described, depicted or otherwise dealt with, which can fairly be said to have the effect of promoting or supporting that activity". In the Board's view that "something" is provided in this case by the encouragement given to such activity by the very way in which it is treated as "normal" and pleasurable.

The Board turned to consideration of the photographs. It had earlier explained that it had followed the same process when considering their classification as it had at the first hearing, namely, by considering each photograph individually. It concluded that 37 photographs identified in the attached schedule should be deemed objectionable under s3(2)(a) and classified them accordingly:

In the Board's view, these particular photographs "[tended] to promote and support the exploitation of children, or young persons for sexual purposes" in the sense that they depicted children as sexual objects, sometimes together or through, for example, over-emphasis on body parts, and thus had the effect of encouraging their exploitation as if it were a normal and acceptable activity. The use of actual children or young persons in this context may be an additional factor in encouraging such exploitation although the Board is not convinced that it is a necessary, or distinguishing, one. Again the Board measured its opinion against the factors outlined in section 3(4).

Next:

The remainder of the photographs to be classified depict naked children in such a way, in the Board's opinion, as to bring them within the scope of section 3(3)(b). (35 photographs, see attached schedule.) As the Board noted in its original decision: "The Board must give 'particular weight' to whether or not they exploit the nudity of children or young persons. The manner in which some of the naked children has been depicted is exploitive of their nudity. Those photographs which are close-ups of child's genitals or anus, and those in which the photographer has taken the photograph from below or from an angle which emphasises the genital area, are exploitive of the child's nudity because rather than depicting simply a naked child, the viewer's attention is drawn to the child's genital or anal area. The child's nudity is consequently exploited, or taken advantage of, by the photographer's emphasis in composing such shots."

(Decision 4/97 at p12)

Taken as they stand, that is as individual photographs, the Board was unable to find any mitigating circumstances under section 3(4) which would lead to a different conclusion. The emphasis and purpose of the Act itself, discussed above, led the Board to the conclusion that the availability of these photographs was likely to be injurious to the public good, in the sense that any material which could be seen to normalise and encourage the exploitation of the nudity of children or young persons should not be in general circulation, when society had expressed its clear intention that the public good would be best served by promoting the interests of children and young persons over other competing interests.

 

 

The High Court properly emphasised that the Board's interpretation of s3(2)(a) was the focus of the appeal. It traversed the reasoning of the Board and concluded that, in reviewing the classification of the book, the Board correctly understood and adequately applied the law, as explained and directed upon by this court (para [32]). In reaching that view it noted that the Board gave the words, "[tend to] promote or support" in s3(2)(a), the available interpretation which least impinged upon freedom of expression. The wider, and thus more limiting (of freedom of expression), interpretation identified and rejected by this court, was also rejected by the Board (para [29]).

 

 

We are satisfied that when the Board came to deal with these issues it stated and applied the law as directed by this court in Moonen 1 and that the High Court was entitled to reach the conclusions it did on this branch of the case.

The Board, and the High Court, focussed on the effect of the publication, the book and the photographs concerned in relation to s3(2)(a). The sexual activity was, the Board found, depicted in the stories in the book as normal and pleasurable and without adverse consequences. The stories would have the effect of encouraging those who might consider engaging in such activities. Mr Ellis took issue with the finding that the book "would" have that effect. But to have found that it would have that effect, the Board must have concluded that it could have that effect. As well, it must be taken, as the Board itself noted, to come within the statutory test of "tend to promote or support". Again, read in context with the earlier part of the paragraph and the next paragraph, the reference by the Board to plain and ordinary meaning does not furnish any support for a submission that the Board ignored Bill of Rights considerations or gave the statutory expression an unreasonably restrictive construction.

Following on from the discussion and findings in relation to the book, the Board concluded that the first group of photographs tended to promote and support, and had the effect of encouraging the exploitation of the children depicted in the first category as if it were a normal and acceptable activity and of encouraging the exploitation of the nudity of the children depicted in the second category photographs. Then, turning to s3(4) the Board concluded that the availability of the particular photographs could be seen to normalise and encourage exploitation of the nudity of children or young persons. We can discern no error of law on the part of the Board, or on the part of the High Court in upholding the Board's analysis.

 

 

We are also satisfied that there is nothing in the argument that the Board (and the High Court) determination that the book and photographs were objectionable within the meaning of s3 was irrational, or that inadequate reasons were given.

The question whether or not the publication was objectionable is a matter for the expert judgment of the Board as the statutory body required to determine that question (s4(1)). And the Board's membership reflects that statutory role. In making recommendations to the Governor-General for appointment to the Board, the Minister must have regard to the need to ensure that the membership of the Board "includes persons with knowledge of, or experience in, the different aspects of matters likely to come before the Board" (s93(5)). Importantly, as underlining that its function is to reach a judgment, making its own assessment drawing on its expertise, s4 itself makes it plain that evidence or proof is not required.

We cannot discern any basis for concluding that the Board's classification of the material as objectionable was irrational, or that, in consequence or in its own assessment, the High Court erred in law in its consideration of the issue. Mr Ellis referred to the two photographs considered by the first Board in 1997 to be objectionable and classified by the second Board in 2000 as unrestricted. As a matter of assessment and judgment, the different composition of the two Boards and the passage of time may not unreasonably have led to differing conclusions at the margin. Also, in comparing the two photographs classified as unrestricted with accompanying photographs classified as objectionable, there is an obvious difference in the extent of the exposure of the genitalia between the two categories.

For its part the High Court at para [30] set out a long citation from the Board's reasoning in relation to the classification of the photographs (the irrationality argument in the High Court apparently being confined to the photographs). The High Court clearly accepted the Board's reasoning and saw no irrationality in the Edwards v Bairstow ([1956] AC 14) sense.

Finally, the nature and extent of the reasoning supporting the decision must depend on the nature of the inquiry. While economical, we consider that the decision does sufficiently convey the reasons which weighed with the Board in reaching its determination. It stated the features of the photographs which contributed to the value judgment which it made. Further, given the pattern of the photographs, and that the Board had recorded that it considered each photograph image separately, clearly it was not obliged to set out in the text a separate reason for its decision photograph by photograph. We are satisfied that it was not necessary in this case for the Board to go further than it did, nor for the Full Court to require more.

 

 

The immediately relevant passage in the Board's decision reads:

Finally, the Board also considered again, as part of this comprehensive rehearing, the possibility of an alternative classification under section 23(2)(c) and (3), in relation to the book and all the photographs, following the Court of Appeal's direction that such alternative classification an be considered for publications whether deemed objectionable under s3(2) or considered by the Board to be objectionable under s3(1)(3) and (4). ... As to the book, the Board considered an argument that the book should be restricted to persons over 18, but rejected the possibility for the reason advanced above, its opposition to general availability because of the effect on society at large, and not only on young people. Similarly it rejected the suggestion that the book be restricted to Mr Moonen alone, being unable to bring the book within the statutory criteria. Counsel also advanced the argument that the availability of the photographs should be restricted to Mr Moonen alone and raised again in this context the alleged purpose for which the photographs were intended, the publication of a book which would include a montage of some of the photographs. This argument was supported by reference to Mr Moonen's standing as a professional artist and the consequent artistic merit of the resulting publication (see s23(2)(c)(ii) and (iii), and (3)). While accepting for the purposes of argument the possibility of a restriction to one person's use under the statute, the Board was not prepared to make such a restricted classification in this case; for the reasons discussed earlier, the Board was unable to form any judgment of the likely artistic merits of such a hypothetical resulting "publication", since only the individual photographs were before it.

In the earlier discussion the Board had noted Mr Moonen's statement that he was intending to select some of the photographs to create a montage depicting children for a book on which he was working. The Board observed that, although that may well have been the intended use to which the photographs were to be put, the Board was not able to view that hypothetical publication; that it was only the original photographs which could be classified as publications, that the factors listed in s3(4) also related only to existing publications, i.e. the individual photographs; and that it would consider, as it later did in the passage cited in para [29] above, the possibility of an alternative classification of the photographs to Mr Moonen alone under s23(2)(c)(ii) and (iii) and s23(3).

The High Court ruled that classification of the book and particular photographs as objectionable under the deeming provisions of s3(2)(a) precluded any alternative classification under s23, while noting that the Board had nevertheless considered restriction to Mr Moonen alone. Then, as to the photographs classified as objectionable under s3(3), the Full Court concluded that s3(4) factors referred only to existing publications and, similarly, publications which were merely planned or proposed were outside s23.

Mr Ellis submitted, and the Solicitor-General accepted, that the High Court erred in its interpretation of s23. We agree. In Moonen 1, the court at para [39] (para [16] above) concluded, for the reasons it gave, that s23(3) provided the sole exception to the otherwise mandatory requirement that a publication deemed objectionable under s3(2) be classified as objectionable and allowed for availability on the very limited basis envisaged by that section (s23(3)). And, of course, photographs found objectionable under s3(3) could also, if satisfying the statutory criteria under s23(3), be classified for restricted availability under the section.

The Board was not satisfied that the book could be brought within these statutory criteria. In respect of the photographs, it considered that the material before it threw no light on the artistic merit of the use of the photographs in a hypothetical resulting publication.

Section 23(3) is directed to the purposes for which the restricted publication may be made available. The yardstick is not whether, as it stands, the publication, i.e. the photograph, has artistic merit or whether any ultimate publication will or may have artistic merit. The test is whether the publication should be made available on a restricted basis for artistic purposes.

The argument for Mr Moonen could have been advanced on the basis that the photographs should be classified as available to Mr Moonen alone for artistic purposes, namely, for use in relation to the preparation of a projected book (paras [29] and [30] above). And he told the Classification Office that photographs were to be selected from his negative files "for the publication of a photography and poetry book in Europe. The aim of this project was to express the essence and beauty of boyhood". (Decision of Classification Office of 2 October 1996, p7.) However, the Board was given very little information as to what the artistic purposes were and how they would be given effect. There is insufficient material available before us to warrant remitting the matter to the Board to allow Mr Moonen to adduce further differently focussed evidence as to present artistic purposes more than six years after he first made submissions regarding the photographs.

 

 

Mr Ellis submitted that the 1993 Act was deficient in not defining the crucial terms "children" and "young persons"; that the consequence was unacceptable vagueness and uncertainty, breaching natural justice and s27 of the Bill of Rights; and that the court should fill in the gap by providing a definition or should make a declaration of incompatibility with Bill of Rights standards.

The omission of an express definition was deliberate. That is apparent from the scheme of s3 and related provisions. Thus, s3(2) deems a publication to be objectionable if it tends to promote or support the exploitation of children or young persons for sexual purposes, s 3(3)(a)(iv) is concerned with the depiction of sexual conduct with or by children or young persons, and s3(3)(b) with exploiting the nudity of children or young persons, in each case not expressly defined - but the age group of the persons to whom publication is intended or likely to be made available is identified as a relevant matter under s3(4) - and s23(2)(c)(i) provides for availability of publication to be restricted to persons who have attained a specified age and is buttressed by strict specific age related offence provisions, e.g. ss125, 126 and 127, but also, and as well, to strict liability provisions relating to making, supplying and exhibiting objectionable publications, including, of course, those deemed objectionable under s3(2)(a) or classified as objectionable by reference to s3(3)(a)(iv) and s3(3)(b).

The Board held in effect that the age issue did not arise on the facts of this particular case because the issue before it was not "What actual age are the subjects depicted in the photographs?", but rather, "What effect would the availability of the photographs have on children and young persons and on society at large in its attitude to them?". It said:

Had the Board been concerned only with the actual children or young persons in the photographs or the details of those in the fictional stories, as providing direct analogies for behaviour, the exact age limit might have been an issue. As it is, the Board has taken a broader view of the effect of the publications in question on children and young persons, and indeed on society at large in its attitude to them, and therefore the question of whether the term relates to those under 16 or under 18 (or something else) is not relevant. In the absence of an agreed definition in the Act, the Board declines to supply one.

The High Court concluded that the Board's approach was consistent with the direction of this court in Moonen 1, that the focus must be on the effect of a publication; and continued (at para [55]):

The Board held that the effect of the 37 photographs it considered should be deemed objectionable under s3(2)(a) was to promote and support the exploitation of children for sexual purposes, in that it depicted them as sexual objects. In the case of the 35 photographs it classified as objectionable under s3(3)(b), the Board's concern was again exploitation, this time of the children's nudity. The Board's particular concern was that the photographs were taken in such a way as to draw attention to the genitals or anal area of the children photographed.

We see no error of law in the approach taken by the Full Court. The legislation is concerned with the vulnerability of young people and with the corrosive injury to the public good of depicting persons perceived to be children or young people as subjects for exploitation. The Board properly assessed whether the publication of the photographs would tend to promote or support the exploitation of children or young persons, not limited to the impact on the particular persons photographed. The inquiry under s3 does not require the ascertainment of the precise age of the person photographed. And it was not suggested that the Board acted irrationally in assessing the photographs to be of children or young persons.

 

 

For the reasons given the appeal is dismissed. If any questions as to costs arise, counsel may submit memoranda.

 

N Dunning, Wellington, for appellant

Crown Law Office, Wellington, for respondent