Legal Beagle by Graeme Edgeler


Into the River/Interim Restrictions

The Censor recently reclassified Ted Dawe’s award-winning young adult novel Into the River as “unrestricted” (.pdf). This decision is now to be reviewed by the Film and Literature Board of Review, whose President has imposed an interim restriction order, which means the book cannot be sold or distributed by anyone.

Essentially, the Board of Review is there to provide some community oversight over the decisions of the professional censors at the Office of Film and Literature Classification. While both are bound by the same laws, the basic idea is that if professional censors stray too far from community expectations, they can have the views of a wider group within the community made known to them. This goes both ways: the Board of Review has often lessened the restrictions imposed by the censor. Cruel Intentions was initially rated R18, but its rating was reduced in time for its video release to R16 (I have heard that the review was taken because distributors didn’t want to dilute the R18 brand, given the film didn’t actually contain sex). And it was a decision of the Board of Review over Saving Private Ryan that means the censor now rates films whose sole concern is that they depict "graphic and realistic war scenes” as R15, and not the R16 restriction the censor would have imposed.

There’s no automatic right of Review by the Film and Literature Board of Review, and the Board doesn’t make many decisions. It appears to have made two decisions in 2014 (including a review of five text message), and one decision in 2013 (their first look at Into the River, which changed rating to R14), and four in 2012 (including the US remake of The Girl with the Dragon Tattoo (confirming its R16 rating), and New Zealand Film Two Little Boys (reducing the censor’s R16 to an R15).

The Censor had looked at Into the River before, rating it “M (unrestricted and suitable for mature audiences 16 years and over) with the descriptive note 'Contains sex scenes, offensive language and drug use'”, but this decision was overturned by the Film and Literature Board of Review in 2013, which gave the book a unique R14 rating (Don Mathieson QC, the Board President (who has also imposed the Interim Restriction order), issued a rare dissenting view and would have rated the book R18).

This wasn’t all that long ago, so I was pretty surprised at news of the reclassification by the Censor. The Censor gets to make decisions, but these can be reviewed by the Film and Literature Board of Review, which gets to make (subject to High Court review) the final decision. As with all classification decisions, the Censor can revisit them after a time (it does so occasionally when asked, notably in respect of books banned years ago. In 2012, after the book ‘Bloody Mama’ (banned in 1971), was seized at the border, the Censor looked at it again, and reclassified it as unrestricted), but the general rule is that decisions stand for at least three years.

It’s been less than three years since that R14 decision of the Board of Review, so the Censor needed to be “satisfied that there are special circumstances justifying reconsideration”. The reasons given for finding that there were special circumstances were as follows:

Since this publication was classified R14 in January 2014 a number of factors have come to light which taken together amount to special circumstances justifying the reconsideration of the classification of the publication under s.42 of the Films, Videos, and Publications Classification Act 1993. The factors include the range of views expressed by the Film and Literature Board of Review, the capacity of public libraries to mitigate the injury to the public good which might but for the restriction flow from unrestricted access to the book, the shared view of libraries across New Zealand, in particular the 63 public libraries run by local government authorities, the impact that the restriction has had on the value of the book as a teaching resource, and the significance of the book as an aid to countering issues in New Zealand about bullying.

The problem that was presented to the Censor, and which has led to the censor deciding that the R14 restriction unreasonably limits freedom of expression, is that it appears that the R14 restriction is stopping people aged 14 and up from accessing the book. Any restriction precludes the book being on library bookshelves, or easily accessible in book stores, because it could be picked up and by 13 year-olds, and most bookstores and most libraries do not have R14 (or even R18) sections to which children are not admitted. While perhaps not disagreeing that the book is appropriately limited to teens, the Censor has decided that the act of restricting the book has had a detrimental effect on freedom of expression for those who would appropriately have access to it, and that in light of the importance of the book, this restriction is unreasonable, especially in light of other things that can be done to limit the harm done to children who might access it.

I really like the decision of the Censor, and think that the appreciation of the unintended consequences of a possibly-justifiable-in-theory restriction is a welcome advance for freedom of speech in New Zealand. But it is probably no surprise, given the past (recent) controversy, that those who sought that the book be classified last time, would again seek to review the decision.

So that there is to be another review by the Film and Literature Board of Review isn’t surprising. What is noteworthy is that, pending the review (which might take a month or so), the President of the Board of Review has imposed an interim restriction, which bans anyone from supplying it to anyone else.

And there is a problem with this.

The Board of the Review said banning 14 year olds from reading Into the River would be unjustifiable, and even the President of the Board, who would have gone further, didn’t think everyone should be banned from reading it. Yet, for the next month or so, that’s basically what has happened (although if you already have a copy, you’re not breaking the law, you just can’t supply one to someone else).

I don’t think this an appropriate or proportionate used of the Interim Restriction power. When you’re talking about a publication like the film Baise-moi, interim restrictions can make sense. There were arguments that Baise-moi shouldn’t just be restricted, it should be banned. We have reviews and appeals for a reason, and the power to make an interim restriction order is in the law to allow the process to occur fairly. If those who consider a publication to be so detrimental to the public good are to be able to pursue this properly through the review process, or in the Courts, it’s appropriate that there is a discretionary power to restrict a publication while that is being sorted through. Without such a power, the damage (such as it is) that publication can supposedly do could be done, when, as a matter of law, it shouldn’t have been allowed.

But Into the River is not Baise-moi. There were arguments that Baise-moi was so injurious to the public that allowing anyone to see it would be harmful. No-one is arguing that Into the River should be banned. And yet, the Interim Restriction is a ban.

For me, the problem is way the Interim Restriction Regime is set up. It’s designed for films like Baise-moi, but in situation like this, it leaves the President of the Board of Review with two options: allow the decision of the Censor that Into the River should be unrestricted to stand while the board makes its decision, or ban the book while the board makes its decision. He doesn’t have the power to say: Into the River has been R14 for the last 18 months, can we leave it at that for another month while we make a new decision, in light of the new evidence? That's probably a hole in the law, but its certainly not one I'd have picked up before today.

The Board has already looked at Into the River and decided that, if 12 and 13 year-olds read it, there is a risk they may be harmed. I suspect that the President of the Board of Review has had that decision in mind when he made his decision: if the Board was “right” and 12 and 13 year-olds will be harmed if they read Into the River, then that harm can now occur. It is possible that the Board will maintain its view, and the President of the Board sees it as his responsibility to maintain the status quo ante, in light of that still pretty recent decision. For the next month or so, 12 and 13 year-olds will be banned from accessing Into the River, it’s just that, unfortunately, the only way he can achieve that end, is to ban everyone from accessing it.

In my mind, the decision is clearly wrong. Whatever risk of harm there is, that harm is nowhere near the highest level, and the possibility of that harm is not enough that it is justifiable to ban everyone from accessing this book, even for a month. The Bill of Rights permits the balancing of societal interests, against individuals’ interests, but in a situation like this, where everyone agrees that the adult population should be permitted to read this book, the possibility an R14 restriction may come into in force in a month’s time does not come close to providing a demonstrably justifiable reason for a temporary ban.

But there's not really a lot any of us can do about it in the meantime. [edit: as Andrew Geddis notes in the comments, it is possible to apply to have an Interim Restriction Order revoked, if one is "a person ... detrimentally affected by the existence of the order". As such a person (I would like to buy the book), I have applied to have the order revoked. I see no reason why there shouldn't be more than one application, however.] Unfortuantely, it's just one more thing to add to the list of problems with our censorship laws.


I am grateful to the Association of New Zealand Booksellers for uploading the decision granting the Interim Restrict order (here as .pdf). Why this is not available on the DIA website, or the website of the Censor, I am not sure. The reasons given for the interim restriction are:

This order is in the public interest for the following reasons:

1. The classification of Into the River under the Act is a matter of wide public concern, as evidenced by the volume of submissions to the Classification Office and published comments.

2. The decision of the Classification Office would radically alter the decision of the Board of Review.

3. It is particularly appropriate that the Board should have an opportunity to consider the publication a fresh without being inhibited in any way by any distribution occurring between now and the date of the Board’s decision.

4. It is debatable, and a matter of independent public interest, whether the Chief Censor acted lawfully under section 42(3)(b) of the Act in deciding that “special circumstances” exist.

5. It is highly arguable whether the Classification Office has reached the correct conclusion on the application for reconsideration before it.

6. The correct classification of Into the River under the Act will operate as a semi-precedent, and will exert a significant influence upon other decisions portraying teenage sex and drug-taking.

As you can see, there is no consideration of the wider effect of the order.

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