DEMOCRACY, the BILL OF RIGHTS and CENSORSHIP.
Submission to parliament, New Zealand, 9th August 2001
by Gerald Moonen
Before I start I would like to make it clear that I am here only representing myself. I do not represent any existing, or non-existing organisation.
I was brought up with the belief that democracy is only as good as it treats its minorities. The other day this belief was a bit more refined when I was listening on the TV, to a speech by Bill Clinton the former president of the United States, who said that "in a democracy the majority rules and the minorities have rights".
We are one of those lucky countries where its citizens pride themselves on, and value, their democracy. We have a proportional representation system to decide who the majority is that rules, and we have the Bill of Rights and the Human Rights Act with which to protect and value our minorities. In a fair and just democracy these tools work such that all citizens benefit from the guaranteed freedoms. These are the corner stones that hold our democracy together, and they teach us tolerance and respect.
What we are presently looking at is a conflict that is the result of the moral panic that has taken hold in many Christian democratic countries over the last 10 years. Those with conservative views have taken the power that was offered to them by vague and less then perfect laws. That's why we are now faced with a conflict about the meaning of the censorship law. It is therefore of ultimate importance in a conflict like this that the other person's values are recognised and protected by the Bill of Rights. For the conservatives as well as the liberals.
There are a large variety of people in New Zealand with many different tastes and needs. There are people who are offended by religious broadcasts, rugby, sex or rock music. But does their sense of moral discomfort give them the right to use the weapon of censorship and so to dominate and limit those citizens in their needs or enjoyments? Not only that, but a moral discomfort or belief cannot possibly be the criterion by which one should apply censorship and thereby to criminalise ones fellow man.
In my written submission I drew the logical conclusion that it is the actual harm (not perceived harm) that must be "damaging to the good of the country". This is the only reasonable criterion that can be used as a distinguishing yardstick to determine what is objectionable material and what is not. That we feel some freely expressed publication as 'wrong, against our morals or even against the Bible' does not fall within this criterion of actual harm. Morals are beliefs that change with the times, like the lengths of the skirts. Our laws should not be an instrument for religious sexual repression. I believe it to be immoral to use one's beliefs as a standard in order to persecute ones fellow New Zealanders.
Justice Woodhouse stated in 1996 that there is the requirement for, "a demonstration that any relevant material has a capacity for some actual harm" and "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". (In Collector of Customs v Lawrence Publishing Co Limited  1 NZLR page 404).
Furthermore, "a Court of Appeal ruling reversed the decision of two anti-Gay videos of an earlier High Court ruling handed down in September 2000, saying the videos had to depict sex in a way that was injurious to the public good to be banned. That element was lacking, therefore the censors had exceeded their jurisdiction". (Evening Post 21 June 2001 page 8). Please note that the Court of appeal did not say 'that it must be thought likely to be or deemed to be injurious' but that it had to be injurious. This and other Court of Appeal decisions back up the ruling of Justice Woodhouse.
The basis of the Bill of Rights lies in the fact that it is designed to protect every person's freedoms from outdated or religious ideals or from convenient misinterpretation by individuals to please "the moral majority". This inquiry is to my knowledge the first time that the authority of the Bill of Rights is being challenged, and I would like to impress upon the members of this committee the importance of upholding the principles of our democracy. The Bill of Rights is not just some other law that can be manipulated according to the norms of the time.
In this country our freedoms are guaranteed in our laws and in particular our Bill of Rights, and the Human Rights Act. These Acts are of such importance that they should be incorporated into any future written constitution. Our Bill of Rights exists as the result of obligations of the Universal Declaration of Human Rights Attachment 1 which our country has signed and is bound to implement. The universal Declaration of Human Rights has the following articles: Article 18. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
These are the same clauses which are the essence in our Bill of Rights. The idea that we are contemplating stripping people, who read pornography, of their Human Rights, by exclusion from the Bill of Rights, is repugnant to me. And in a civilised country like ours this is not acceptable.
There has been very little scientific proof about the harm of pornography. For some it is abhorrent and for many it is as innocent as their own sex play, and for others erotica is known to be used as a substitute and aid for sexual gratification practices, and as such, can be a saviour for some people who might otherwise lose self-control and commit a crime. This is shown very clearly by one of the few statistics available. Attachment 2 In Denmark, the rate of serious sex crimes against children fell over 70% over ten years when in 1960 Denmark decriminalised pornography. Criminological research has shown that this dramatic fall in sex crimes is real. Since the 80's, with the coming of more obsessive and punitive attitudes to sexuality, and the reintroduction of censorship laws, I have been told that the offending has gone up again. It would make an interesting study to see what effect the introduction in 1993 of the Films, Videos and Publication Act had on our own crime statistics. From what we know now, there can be no doubt, that erotica, has the capability to prevent crimes.
In the DECLARATION OF SEXUAL RIGHTS Attachment 3 by World Association for Sexology, which was adopted in 1999 it states: Sexuality is an integral part of the personality of every human being. Its full development depends upon the satisfaction of basic human needs such as the desire for contact, intimacy, emotional expression, pleasure, tenderness, and love. I will not read the whole of this important document. But I would like to make the members of this Inquiry aware that the experts' consideration in this declaration is, that age and gender is not mentioned as an issue in regards to sexuality and sexual rights. Age discrimination is against the Human Rights Act.
Regarding the censorship issue it is obvious there is material that is clearly non-consensual, and harmful, and there are laws that already protect us from that. However, a proportion of freely available erotica is an expression of our sexuality, and it is typically of a consensual nature. The criteria for establishing what is objectionable cannot solely be that there is nudity, or that a sex act is taking place. The establishing of what is objectionable has to be based on obvious or proven non-consensuality issues such as harm, abuse of power, rape or violence. Nudity or sex in itself are not innately harmful.
The other aspect that the Inquiry needs to consider, is the revolution in knowledge through the immense communication possibilities such as the Internet. Here almost anything and everything is available, and is being discussed, and evaluated. Through these unlimited exchanges of information, our horizons are widening and our moral and sexual beliefs are changing faster, than in any time in the history. We have to be careful, while we are at the beginning of this revolution; to keep an open mind.
In my view, a redefining of the censorship law is necessary. I do not believe that it is the duty of the government to make laws that are demonstrably anti-sexual, as in the present law, but I do believe that it is the Governments duty to make laws, that protect us from harm, power, violence and abuse.
Recently a book by David Hamilton was declared objectionable Attachment 4, for it "tended to promote or support the exploitation of children and young persons for sexual purposes". David Hamilton happens to be a world-renowned photographer with many books to his name. He is not a pornographer and never will be. A few years ago he was invited by a major conservative photographic firm to travel the main centres of New Zealand to give illustrated lectures. What does it mean, the publication "tended to promote or support the exploitation for sexual purposes"? This man might have expressed his liberal attitudes in his photography, which he is entitled to under the Bill of Rights, but never have I seen in any of his books a tendency to promote and support exploitation for sexual purposes. The vagueness of the law we have at present, makes it possible for a puritanical censor in his or her judgement, to project whatever is in his or hers puritanical mind. The judgement needs to be guided by something much more tangible than beliefs or prejudices. Actual harm as the Court of Appeal and Justice Woodhouse said perhaps? The words in the present law "tend to, deem to or is likely to" seems to leave the door wide open for personal interpretation.
If this government as a member state of the United Nations ignores the Universal Declaration of Human Rights and excludes any New Zealand citizen from the protection of our Bill of Rights, it would be interesting to see what the International Court of Justice in the Hague will have to say. It would also take many years, to regain the relatively enlightened management of freedoms that we have at present.
To conclude I would like to summarise the main points:
Thank you for listening.
This document is the oral submission by Gerald Moonen to the Parliamentary Inquiry into the Operations of the Films, Videos and Publication Act 1993 and related issues.
9th August 2001