Legal Beagle: Into the River/Interim Restrictions
56 Responses
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Ian Dalziel, in reply to
“I got this idea from a book”
Sigh, it seems the ’Seduction of the Innocent’ ride has opened up again…
I thought we had left 1950s’ mindsets behind us…
mostly it just shows that adults don’t understand their young, and that adults project their own fears and inadequacies in contexts that challenge their comprehension… while the younger mind is more ‘elastic’ …
Family First members are just trying to avoid having meaningful discussions with their kids.
Do we know if the complainant has children or was just acting as ‘God’? -
I'm going to say a few - and only a few - words in defence of Don Mathieson.
He is surely right that what's happened here is that the censor's office has brazenly overruled the Film and Literature Board of Review. That's like the District Court purporting to overrule the High Court.Resubmissions are allowed after three years have passed. That's surely to allow for changing social circumstances. They can be accepted before that, but only if there are special circumstances, as Graeme points out. None of the circumstances given by the censor's office are really about anything that has changed since the Review Board's decision was issued. The censor essentially says: "I think the Board got this wrong".
It's true, as Graeme says, that they point to the fact that the R14 restriction has had more of an effect on the availability of the book to others than might have been expected. But, you know, that's what happens when you age restrict a book. It was surely fairly apparently from the outset. It hardly constitutes the sort of special circumstances I think the Act is contemplating. Nor do any of the other reasons given.
In fact, the main reason given by the censor is the Board's failure to consider the Bill of Rights. That's a legal error. It is not the function of the censor to reverse a decision of the Board of Review for legal error.
That said, I agree that it's a doozy of a legal error. What the hell is the Board of Review doing making a restrictive decision without grappling with the Bill of Rights? Still, it's not the censor's place to fix that.
As for the interim restriction order, I agree that it's overkill. That is, it's disproportionate in that it fails to properly grapple with (and act consistently with) the Bill of Rights. I'd add another reason: it cannot be too hard for the Board to agree to meet quickly and reach a decision so that no interim restriction is required.
But I don't agree with Andrew Geddis that all the President's reasoning for the restriction order is wrong. If the censor did make a bad and manifest legal error in purporting to overturn the Board of Review when there really were no special circumstances justifying it (as I think is the case), then surely that is at least a factor that may be taken into account in assessing the public interest in an interim restriction order. That said, Andrew is surely right that the main question is about the balancing the harms involved: was the damage to free expression worse than the harm to impressionable youngsters of the availability of the book?
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Most other developed countries don't even have a classification system for books.
Children generally have a parent or guardian who might be expected to supervise their reading choices, don't they?
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I am finding all of this quite astounding. So many examples of books that very young children can read - I remember Robert Cormier books being on the curriculum at high school, and access was unrestricted. "After the first death" made a particularly strong impression on me. As far as I know, anyone can read the works of Iain Banks from any public library in New Zealand - I read The Wasp Factory when I was 16, but could have read it much younger - arguably much more disturbing content. "Lord of the Flies" - still taught in New Zealand schools I assume? Also freely available from libraries and bookshops.I cannot see any reasonable argument that could apply any kind of age restriction on these books or the book in question - are we asking librarians, teachers and booksellers to police this?
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We might add: Fifty Shades of Grey is also freely available to all. (Disclosure: I made submissions for the publisher that this should be unrestricted).
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Sanya Baker, in reply to
Yes, Tamsin, we are, which is where the contention that this was making access difficult for young people aged 14 and over came in. And this applies to the ban as well. Librarians have been reminded by our professional association this morning that not only is _Into the River_ to be removed from shelves but also "off your search catalogues".
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I've been looking at the LIANZA website, but can't see any kind of announcement about this. I'm a librarian myself, qualified in NZ, but now working in the UK - is there going to be any LIANZA response to the restriction? I understand that this is just an interim ban, but I can't quite see how the original R14 was arrived at - I've read the excerpts above, but I can't see that this is a proportionate rating for the book anyway. All of this is just bizarre.
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Chris Bell, in reply to
Rob, you're correct that the Kindle edition of _Into The River_ isn't available from Amazon.com but it is available from the Amazon.com.au website: bit.ly/1Uwz35E . New Zealand Amazon customers can shop from either the US or the Australian store, your choice.
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Sofie Bribiesca, in reply to
Do we know if the complainant has children or was just acting as ‘God’?
Bob McCroskie on the news last night said " I showed extracts of the book to several fathers TODAY and they couldn't get past the first paragraph, they were shocked"
How come he's allowed to be showing it to others. I thought that was restricted also. He seems to have broken the law. -
Rob Stowell, in reply to
It's there, but when you try to buy it -
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the little 'read' schoolbook
Into the River could become the Little Red Schoolbook for this generation... which means ultimately it is available with parents being the arbiters...From the Censor's timeline
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Some time, probably in the early 70s, my Mother bought a copy of the LRSB for us kids to read … so yes what Ian said about parents
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Rich Lock, in reply to
Fifty Shades of Grey is also freely available to all.
As is it's inspiration 'The Twilight Saga', and it's creepy abusive central relationship.
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Andrew Geddis, in reply to
If the censor did make a bad and manifest legal error in purporting to overturn the Board of Review when there really were no special circumstances justifying it (as I think is the case), then surely that is at least a factor that may be taken into account in assessing the public interest in an interim restriction order.
But what role does the Board (and its President) have in reviewing the legality or otherwise of the Office's decision to reclassify? Where in the Act are you sourcing this jurisdiction? The right of review/process of review refers to the Board looking at the publication only ... it's clear that it isn't intended to be able to conduct a full appeal jurisdiction over all aspects of the Office's actions.
In a nutshell, Dr Mathieson (and you) think that the Office exercised its reclassification powers improperly. So - off to the High Court you go! You don't use a power given under the Act for an entirely different purpose to try and remedy what you personally happen to think is a wrong action.
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Another interesting historic example I've recently come across is the film Secrets of Life.
The attached image shows crowds outside the Embassy Theatre in Wellington in May 1950. The film was screened to segregated audiences (women and girls at 2pm and 6pm, men and boys, 8.30pm, all youth to be over 14) and was supposedly about the dangers of venereal disease. It was written by American "sex therapist" Elliot Forbes who presented a Q&A session at the end of each screening.In reality, the whole thing was a sexploitation fraud. The film was marketed in a titillating way to give the impression that there would be some serious rumpy-pumpy to be seen so the distributor deliberately introduced segregated screenings and included the Q&A session to turn it into a sex-education "event" (thus avoiding the ire of the film censor). "Elliot Forbes" never actually existed and was one of several actors that travelled with the film around Australasia, the idea being that they would get in and out of town before word of mouth spread that the film was complete rubbish.
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As far as actions go, there are Read-Ins in Dunedin and Wellington. Reading your own copy of the book is about the only thing left you can legally do with it.
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Where am I sourcing this jurisdiction? In the power to grant an interim restriction order in the public interest. I take the public interest to include an interest that valid classifications take effect and are not subverted if there is an obviously unlawful purported exercise of a power to overturn them. (We can argue about how obviously unlawful it is here, but that's a different question). On your logic, the OFLC could "overturn" every decision of the FLBR the next day, on the grounds that the Board supports a different rugby team, and this could have no impact on a decision to grant an interim restriction order.
That said, I completely agree with you that the power to make interim restriction orders must be exercised consistently with the Bill of Rights and that requires a focus on the competing harms.
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"Banned in NZ". It's like being damned with faint praise.
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On your logic, the OFLC could “overturn” every decision of the FLBR the next day, on the grounds that the Board supports a different rugby team, and this could have no impact on a decision to grant an interim restriction order.
On my logic, the President then would have to consider whether there is harm caused to the public by having each individual publication freely available to all people in NZ for the period until the Board can review the classification. Or, alternatively, you (or the President, or anyone else) could file an application for an urgent injunction in the High Court to set aside the Office’s decision as unlawful on ultra vires grounds. Because the courts determine the lawfulness (or otherwise) of the Office’s decision to accept for reclassification, not the Board.
Put it this way. Can the Board, upon full substantive review, say that the Office has improperly acted when reclassifying the book – not that its “no restrictions” reclassification is wrong, but that its even looking at the book again was wrong? No, it can’t. So you’re arguing that the President has a wider jurisdiction when making an interim order than the whole Board does when making a final substantive ruling. That seems wrong to me.
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BenWilson, in reply to
I remember seeing a DVD copy sitting next to ‘I spit on your grave’ in the local video hire shop when we moved to Devonport in 2006.
BAN THIS SICK FILTH!
When faced as a young teen with the choice and some lads who wanted to watch something not-allowed, I Spit on your Grave was eliminated because only I hadn't already seen it. When we picked Caligula instead, and the question is "It it art, or obsenity?" was being pondered, the consensus was that we hoped it wasn't art. We were all a bit disappointed.
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Steven Price, in reply to
Yes, I have a wider view about what the public interest allows here.
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Russell Brown, in reply to
Into the River could become the Little Red Schoolbook for this generation... which means ultimately it is available with parents being the arbiters...
I was a kid at the time of that controversy. I wasn't even quite sure of what The Little Red Schoolbook was, but I knew I desperately wanted to read it. That and Down Under the Plum Trees.
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Sanya Baker, in reply to
There is a response from the Library and Information Association of New Zealand Aotearoa (LIANZA) here: [http://www.lianza.org.nz/lianzas-response-river-ban]. Happily, the rather shocking advice that libraries must not only remove the book from shelves but also remove reference to the book from library search results was revised earlier today by Internal Affairs.
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Rich of Observationz, in reply to
Around that time, someone surveyed a group of 13 year olds as to what video nasties they'd seen. They dropped an imaginary title into the possible options, which if not at the top, was certainly well up the list.
Also: who remembers I Spit on Your Gravy
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Graeme Edgeler, in reply to
Or, alternatively, you (or the President, or anyone else) could file an application for an urgent injunction in the High Court to set aside the Office’s decision as unlawful on ultra vires grounds. Because the courts determine the lawfulness (or otherwise) of the Office’s decision to accept for reclassification, not the Board.
I think I'm with the Andrew on this. I was surprised by the decision of the Censor to review it so soon, and am open to the argument Steven posits that it was wrong to do so. I didn't focus on this in my piece because, well, a book that everyone agrees should not be banned has been banned, and that seemed like a bigger deal :-) But even the decision was wrong, that doesn't mean that the response to that decision is the correct one.
I did try to be fair to the President of the Board in assessing what I think his rationale must have been for imposing the interim restriction order, but nonetheless come down against the decision. Simply put, because the effect of an interim restriction order is to ban everyone from accessing the book, the power is, in my opinion, never appropriately used in respect of a publication that no-one wants to ban.
A High Court review is the appropriate course, not least because you could obtain the interim measures that the Bob McCoskrie, and the Board President actually want: a High Court could delay the coming into force of the new classification pending final review of the censor's decision that there were special circumstances. The High Court has the power to order, by temporarily staying the Censor's re-determination, to order that the Board's R14 restriction remain in place, pending determination of the question of whether the decision of the Censor was correct. The Board President cannot do that, and as Andrew argues, the Board is not empowered to review the decision that those circumstances exist, anyway.
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