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.
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
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.  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):
"I am left in no doubt that ... there is a clear
statutory intention to withhold the censorship weapon from material which falls
short of being actually injurious".
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.
Everyone has the right to freedom of thought, conscience, religion, and belief,
including the right to adopt and to hold opinions without interference.
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.
"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
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.
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
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
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
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".
The question from the law to the censor ought to be:
"Where is the harm?, not "Is this too liberal?", or
"do I believe this behaviour to be wrong?"
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
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
May you be guided by honesty and wisdom,
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
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
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
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.