Films, Videos, and Publications Classification (Interim Restriction Orders) Amendment Bill

So Part 1 of the Films, Videos, and Publications Classification (Interim Restriction Orders) Amendment Bill—a catchy title, as my colleague Maggie Barry said during the second reading of this bill—deals with the substantive amendments to the principal Act, which is, of course, the Films, Videos, and Publications Classification Act 1993. The Act has been amended a couple of times—I think probably more than a couple of times—over the last 24 years since it was passed. It is probably an Act that is in need of a bit more of a substantive review as we move into the internet age. But what this bill does is make a couple of very small but, I think, very useful changes to advance and improve freedom of expression in New Zealand.

In the first and second readings of this bill members in the House canvassed the issues around the book Into the River, which was the genesis for this bill, basically—the unfortunate events of 2015 around Into the River, the award-winning novel by Ted Dawe. What happened there—and I do not want to traverse again the potted history—

The CHAIRPERSON (Hon Trevor Mallard): No, that would be irrelevant.

—because it takes about 6 minutes to explain and, as the Chair is pointing out, it would be irrelevant. But I do want to draw the Committee’s attention to the exact changes in Part 1 to try to remedy the situation, to try to make sure that does not happen again.

So what we have in clause 4 of Part 1 is the replacement of section 49 with a new and expanded new section 49, which will become section 49 of the Act, to basically expand the tool kit that the president of the board of review, and also the High Court, can use when considering interim restriction orders. Basically, what happened with Into the River was that Family First lodged an appeal—the second appeal, or the fourth time a body was going to classify the book Into the River. Family First lodged an appeal and used this little-known section of the Act we are talking about, which was the power for the president to order an interim restriction. What the president did in that situation was—they did decide to do that and, of course, we had the effect of the book not being available for 6 weeks before the board of review met. Basically, the president was placed in that position because of the binary nature of interim restrictions.

So what new section 49 in clause 4 of this bill does is expand the tool kit. In particular, I am talking about subsection (3), which allows—sorry, it is subsection (3)(d), or (b). It allows—I will start that again. Section 49, subsection (3), paragraph (b)—

The CHAIRPERSON (Hon Trevor Mallard): Clause 4.

No, no, paragraph—the Chair is pointing out that I mean clause 4, but I actually mean subsection (3)(b), which allows the president to issue an interim restriction order that is more appropriately calibrated to the specific harm that may or may not be, in the opinion of the president, occurring as a result of this order. So what it does is it allows the president to issue an order that is more closely calibrated to the specific harm.

In the case of Into the River, which had been at various points classified R18 or R14, rather than simply saying that this publication is objectionable pending further appeal, they could say, I suppose, “It is partially objectionable but we will maintain it to be available for people over the age of 18.”, or in the case—as you sometimes see going into things like the incredible film festival in Wellington in the early 2000s, you could also say it is available for film festival viewings or for tertiary study. I have a sort of objection in principle to the idea of restricting speech based on the fact that people are in tertiary education, or saying that a higher class of people go to film festivals. I tend to think that is a bit ridiculous, actually. But, regardless, that is in the Act, and that power, I suppose, to restrict to a specific audience is in the Act.

💬 Clare Curran: I can feel another member’s bill coming on.

So I am not going to traverse that. I did not hear that interjection, but—

💬 Clare Curran: That’s your next member’s bill.

Oh, that is my next member’s bill, says Clare Curran. Well, possibly—I mean, this Parliament has got only a short run of life left in it, but you never know. My next member’s bill is actually around celebrancy. I might get the third luck of the ballot on that one, but I highly doubt it—I do not think we can have another member’s day.

So, anyway, that is the substantive amendment advanced through new section 49. Then, of course, we come to clause 5 of the bill—[Bell rung] Mr Chair.

The CHAIRPERSON (Hon Trevor Mallard): I will call the member again, but I will remind him that we are discussing three clauses: clauses 4, 5, and 6. The member might be talking about a section of another Act, and if that is the case—he is a lawyer. He should know.

Thank you, Mr Chair. We come to clause 5, which deals with similar powers to do with interim restrictions to do with the High Court. It is a little-known section about the power to do with interim restrictions in that they can also be appealed to the High Court. What the bill does is, essentially, replicate the same powers as in clause 4 of the bill in new section 67 in clause 5 in relation to the High Court, and that is just a consequential change that has to be replicated in the appeals to the High Court as a result of the changes we are making in clause 4 to section 49 of the Act.

Clause 6 inserts new section 133A. Again, this is a change that is necessary in response to the changes we are making through clause 4, which is about the potential penalties for people who contravene an interim restriction order. What the bill proposes as a result of the changes made by the very hard-working Justice and Electoral Committee is in subsection (3), which will make people liable to conviction or a fine not exceeding $3,000 or, in the case of a body corporate, $10,000. We had a bit of debate in the select committee, I think it is fair to say, about the level of fines. You could probably argue they should be greater, but we have decided to go for the moderate option that is put forward in the bill. So, with those brief introductory remarks, I will leave it there.

I think Chris Bishop described this bill as small and useful, and the Labour Party would agree. We support it. It corrects an anomaly in legislation, and that is always an important thing to do. It stems—and I will not go into too much depth on this; obviously, it has been traversed before—from an outcry around the total restriction on Into the River, the book written by Ted Dawe in 2015. It corrects that anomaly around interim restriction orders made under the Films, Videos, and Publications Classification Act.

In the Justice and Electoral Committee discussion—I did not sit on the select committee, but in reference to the commentary back from the select committee, there are, essentially, two changes that are being made. One is to the title, which does not relate to Part 1. The second is the insertion of new clause 6, which inserts new section 133A into the principal Act. The member Chris Bishop has just touched on that, around the introduction of new offence provisions for breaching interim restriction orders. Basically, what that appears to be saying, to me, is that the existing penalty for breaching an interim restriction order would also apply to breaching any of the new types of orders.

Because I did not sit on the select committee, I am not quite sure what the principal Act offence provisions are that are not envisaged by the more flexible interim restriction orders proposed in this bill, so maybe the chair might just like to answer that.

💬 Kris Faafoi: The chair?

Oh, not the Chair. Mr Chair, my apologies go to you. I am sure that you could have a go and I am sure you could answer it. It would be a hands-tied-behind-the-back—

The CHAIRPERSON (Hon Trevor Mallard): I might be the Chair; I’m not the member’s researcher.

But the member in charge of this bill, Mr Bishop, could answer it.

I would also just like to refer to the submission by the censor’s office, or the Office of Film and Literature Classification, which is an important office. It gave a considered submission. It referred to the unprecedented public outcry at the imposition of the interim restriction order, which the president of the film classification board had no option about. His hands were tied. He had to impose that total restriction during that period of time. But there was a considerable public outcry, and the chief censor’s office really said that, had this amendment been in place in August 2015, the president could have issued a more nuanced interim restriction order. Of course, there is no guarantee that that would have been done, but this anomaly being corrected allows for that to occur. For instance, it could have continued with the R14 classification, which means that libraries still could have issued the book and there would not have been the public outcry.

But I also note, in my closing remarks, that the member, in his various speeches on this bill, has raised the issue—and I think the censor sort of goes there to some extent as well, in his submission on this bill—of the concept of the interim restriction orders and asked whether it was timely for a review of those. Clearly, this bill does not go there, and he deals with just a small anomaly, which Labour supports. But I think that I would like to see the member bringing another member’s bill, maybe next year when he is in Opposition, to actually address the bigger issue of interim restriction orders and to see whether they could be reviewed, and to review the role of the film censorship board in actually carrying out those orders.

It is a pleasure to be able to stand and take a call on this bill and, particularly, I think that when you have got amendment bills of this nature, it is really important for us to look and ask what is broken that needs fixing. I think what we saw from the incident that led to the formulation of this bill—i.e., the issue around the Into the River book—was that we had only blunt instruments at the disposal of the president and the board when it came to looking at matters that are on appeal. And so I think it is very, very good that Mr Bishop has brought this forward so that we can actually fine-tune the types of things that are available and the tools that are available to deal with appeals to the board on issues of censorship around different forms of publication.

In clause 4, I think, there are some really good, pertinent words that actually have been brought out in the drafting of this legislation. For example, in subclause (2), it says that once the president has received a written submission from somebody regarding this, the precursor to what the president must do is in these keys words, for me: “The President must, as soon as practicable,—”. I think that is really important, because if you stick a specific time, like within 3 days or 5 days or something like that, that is not appropriate, either. But what we would not want is for it to be open-ended in such a way that it could be dragged out. Mr Bishop, in his opening remarks at this Committee stage, touched on this as well.

In particular circumstances, where there are either publications or film festivals or the like that are taking place—there is some time sensitivity attached to those festivals. For example, if somebody brought a film into the country for a festival where it had only a week-long screening, and then somebody asked for one of these restriction orders to be put in place because they did not like the classification the film had received, I think we would all agree that the promoters of the film—if, say, for example, the film had initially been given an R13 rating, if it was just completely withdrawn because of the blunt instruments that are available now, the promoters would be economically and realistically quite disadvantaged by the situation of not being able to show it during that one week of the film festival.

So for the president then to need to actually act quickly and to bear that in mind—that can mean that, actually, it is quite possible for that film to still be shown, albeit with a revised, temporary classification. The president, as we see in subclause (3), has an ability to put in place particular classifications. So that film that may originally have been rated R13 or R16, perhaps—the president can say, “Well, clearly it’s not so objectionable that it needs to be banned, and the worst possible scenario would be that it will be R18.” So he could perhaps change it to R18. That would allow the promoters of that said film festival to proceed anyway and be able to—perhaps, without the 13- to 18-year-olds attending it, they might have some economic disadvantage, but they would not be completely wiped out because they were unable to show the film.

I think, on balance, particularly around clause 4, it is very good that we have got this timing issue for the president to make his ruling. But what we also have is this sort of variation in the types of interim orders that can be put in place.

I will just skip over clause 5 at this point, but clause 6, I think, is also very important, because, actually, there needs to be some sort of disincentive for people who might breach those interim orders. What we do not want is, if the president has actually put in place something that says “Look, this is what we’re going to do now.”, people turning a blind eye to that. Clearly, there needs to be some ramifications for that, some consequences for that action.

In debating what level of fine would be put in place, it is, indeed, in a committee, something that you have to wrestle with, because any number that you pick is ultimately an arbitrary number. Obviously, when setting the level of fine, one has to be trying to figure out that balance between what is a reasonable response to a breach of this kind and also what would be a sufficient deterrent. In this case, obviously, as outlined in clause 6, what we have actually outlined as a committee was that in the case of an individual, $3,000 seemed to be an appropriate fine for that situation. It strikes that balance between—you would certainly have to be grossing a fair amount off some publication or film for it to be worth your while to simply thumb your nose at a $3,000 fine. Obviously, of course, in the case of a body corporate, there is the $10,000 fine.

I think, ultimately, in clauses 4, 5, and 6 in Part 1 of this piece of legislation, it has been clear to me, actually, that that balance, as I said earlier, between the timing and the flexibility available to the president in being able to put different classifications in place on an interim basis clearly shows, to me, that the current legislation is broken. It did need fixing, and this amendment bill goes a long way to fixing those issues.

Thank you, Mr Chair, for this opportunity to speak in the Committee of the whole House on Part 1, which contains the substantive provisions on this Films, Videos, and Publications Classification (Interim Restriction Orders) Amendment Bill, of course brought in the name of Mr Chris Bishop. It is a very good little bill—a technical amendment—but one that is going to have great application in this area.

In respect of clause 4, which, of course, replaces section 49 of the principal Act, it does extend the tool box available to the films, videos, and publications classification team to be able to make more meaningful rulings in the interim in respect of publications. As the member rightly pointed out, this came about because of the situation with Into the River, where the president of the board of the review was left with very few options once an appeal was lodged. So the president had either the option of completely banning the publication or, of course, to—

The CHAIRPERSON (Hon Trevor Mallard): Order! I am going to interrupt the member now and remind her that we are at the Committee stage debate. I think it becomes particularly apparent when the member is making a very similar speech to an earlier member, which I probably should have warned that member not to do, and it is also irrelevant. The member has got to talk to the Committee stage—the detail of these clauses—or not at all.

Yes, thank you. I was going to come back to clause 4, which does, of course, replace section 49 of the principal Act, in particular section 49(3)(b), and come back to the fact that the tool box has been widened and more flexibility given to the president in respect of interim orders. And if I just go through that here—there are two subsections to allow an interim order with more flexibility to apply to “(i) persons who have attained the age of 18 years or a specified younger age; or (ii) specified persons or classes of persons;”.

When we look at that, when we are talking about banning publications or restricting publications in the interim, when, as my colleague has noted, people have made an investment in a publication, if that is suddenly ripped from them, they need to have some sort of flexibility in the system—or we do; the classification team—to go back to earlier orders or to create parameters to protect people socially or economically, maintaining that balance between protection and freedom of speech.

I note that the member talked in particular about, in clause 4, the insertion of new section 49(3)(b)(ii), in respect of creating “specified persons or classes of persons”—talking about tertiary study—as a range of people who could be looking at studying a novel or a publication in some way, as part of their literature degree. So if they were somewhat through that, it may be appropriate that they continue throughout that study.

I do not think it necessarily applies just to tertiary institutions. We did have a discussion about this in the committee—that it could go wider. It could be high school children, in respect of certain novels. It could be any group of people who may have the need to have an interim order upheld for them so that they can study that particular piece of literature. I do not think it is an elitist thing; I think it is protecting a group of people in the interim to continue that study, all while the classification team balances freedom of speech versus the public interest. Thank you.

Ms Curran made some remarks a few moments ago and asked a couple of questions that I do wish to respond to. The first was in relation to, if I understood her correctly—I think she was asking about what sections would be offended against if something was classified as objectionable. I think this is a reference to new section 49(3) inserted by clause 4 of the bill. She was referring to what section 123(1)(c) of the principal Act actually refers to, and what it refers to is, essentially, all of the things to do with dissemination of the potentially objectionable material—so the sale, the supply, the publication, the distribution; insert various verbs there.

What the interim restriction power allows the president to do—in fact, what the Act compels the president to do—is make an interim restriction order that prohibits the doing of any act or thing in relation to a publication that, if the publication were an objectionable publication, would be an offence against the dissemination, the distribution, the production, the sale, and the supply. That is replicated in various other sections, section 127 and section 129, as well. I think, if I understood what Ms Curran was saying correctly, that responds to that point.

Ms Curran also raised a point around whether or not there should be a wider review of interim restrictions, and she noted that during my first reading speech I did advert to that possibility. I have got to say, I think that there is, possibly, a case for the wholesale abolition of interim restrictions. There are a number of reasons one could advance for that proposition. First of all, they do not give enough recognition to freedom of expression, which is of course recognised in section 14 of the New Zealand Bill of Rights Act and is a paramount constitutional consideration within our system.

The courts and, indeed, New Zealand have traditionally viewed with distaste the possibility of what is known as prior restraint on speech. The courts will generally prioritise freedom of expression when it comes to cases of breach of confidence, breach of privacy, or defamation. There is a very high bar before the courts will intervene with things like interim injunctions, for example. They will generally prioritise and preference freedom of expression over those other values. There is a high bar that litigants must meet. So it seems very strange, in some ways, that if that is the case when it comes to interlocutory cases of prior restraint, we would preference the one judgment or one determination of one person—whoever happens to be the president of the board of review at the time—after a properly constituted body, the classification office, has made a determination.

It is worth remembering that this is on appeal, so there has been a classification office determination already. A group of experts appointed by the Minister have made a determination about the appropriate classification of a book or a publication—whether or not it should be objectionable, or whether or not it should be R18 or R16 or recommend to be M for mature audiences only, 15 years and above. There has already been a determination. This is on appeal, so it seems a bit strange that given the courts and New Zealand society generally do value and preference freedom of expression we would not do so when it comes to something like interim restrictions—that we would say that the president of the board of review has, you know, some sort of magic power over and above that of the properly constituted body in the first place. That is the first reason.

The second reason is that, actually, in some ways, they are just unnecessary. I got the library to go back and have a look at how many interim restrictions have actually been issued and how many times the board of review has altered the decision of the classification office. There were 101 appeals between 2005 and 2012, and only seven alterations to what the original classification decision was. That is a very small number—seven out of 101, that is just less than 7 percent—so you do have to wonder whether or not this power does actually need to be there.

Of course, it can be abused, and that is the third and final point—that it can be abused. In other remarks on this bill, I have talked about the frankly outrageous behaviour, I think, of groups like the Society for Promotion of Community Standards, which would wait right until the last minute before applying to the president of the board of review for an interim restriction in the early 2000s. It seems to have stopped that practice more recently, but it did of course lead to some disharmony at the time. Their intention was to disrupt 2-day film festivals and, having achieved that purpose, having the film festival go on without the showing of films like Baise-Moi and Bully and stuff like that—films that I would never go and see, but that, apparently, people do want to go and see.

So to respond to Clare Curran, I think there is a strong case for getting rid of interim restriction orders. Maybe that is my next member’s bill. This makes at least some steps in the right direction. We did canvass it at the Justice and Electoral Committee, but we decided that we would just go with this next step as a starting point, but let us wait and see where Parliament lands in a few months’ time.

I too stand tonight in support of this, the Films, Videos, and Publications Classification (Interim Restriction Orders) Amendment Bill in its Committee stage tonight. We are speaking about the meat of this bill, which is in clause 4, where it inserts new section 49. That provides a solution for the inflexibility that there is with the current law, and it does give a simple amendment—simple but effective—and it allows for the Film and Literature Board of Review to apply interim restrictions while a publication is under appeal.

We found that, with the book Into the River by Ted Dawe, this was a completely inflexible system that we were operating under, so this new section 49 provides for some very practical tools to apply these classifications—for instance, M in this classification would be restricted to mature audiences or a specific age group. In granting these applications, there is an opportunity to apply these restrictions across a variety of age groups or types, and also to decline the application if that is deemed appropriate.

The other part of this Part 1 is that it relates to interim restriction orders where the High Court or the judge must apply the same consideration to these restrictions on publications. The High Court or the judge also has the ability to apply the various restrictions to age groups or types, as in “mature” or an age bracket, or to decline the application.

As we have heard tonight, there is also the ability to impose sanctions for contravening these restriction orders and apply quite considerable fines to people who do intend to breach these rules—up to $3,000 for an individual and up to $10,000 for a corporate body. It is very clear that this was a gap in the law. It has been ably filled by these small amendments in the Films, Videos, and Publications Classification (Interim Restriction Orders) Amendment Bill, and I commend it to the House.

Part 1 agreed to.

Part 2 Consequential amendments to principal Act