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Review Of Decision Of Minister Of Internal Affairs

The Society for Promotion of Community Standards Inc.

The Society for Promotion of Community Standards (SPCS) is to seek a judicial review to determine the legality of Internal Affairs Minister George Hawkins’ failure to recommend an appointment to the position of Deputy Chief Censor (DCC) in the Office of Film and Literature Classification (OFLC) and his decision on May 9 2001 to end the recruitment and appointment process he commenced in May 2000. The decision to end the process was “confirmed” by Cabinet in its meeting of 14 May 2001 [Ref. 1].

Papers were filed in the High Court, Wellington at 4.15pm today by Mr John Bryson, solicitor acting for the Society. Barrister Dr George Barton QC is counsel to the Society. The Crown Law Office were formally notified yesterday of the High Court action. Copies of High Court documents were served on the Secretary for Internal Affairs and the Minister via the Crown Law Office late this afternoon.

Hon. George Hawkins is the Minister responsible for determining policy and exercising relevant statutory powers and functions in relation to the Office of Film and Literature Classification. This Office, set up under the Films, Videos and Publications Classification Act 1993 (FVPC), is a Crown entity and is currently headed by Chief Censor Mr Bill Hastings. Both the positions of Chief Censor and Deputy Chief Censor within the two-person executive of the office are statutory appointments made by the Governor-General on the recommendation of the Minister, in consultation with the Ministers of Justice and Womens Affairs. The position of DCC has been vacant since October 1999 and the OFLC executive has consisted of only one person (rather than the two as required by law) since October 1998. Section 85(2) of FVPC states that “the Chief Censor and Deputy Chief Censor shall be responsible for the exercise of the functions and powers of the Classification Office under this Act.” The DCC is the only person in the OFLC (currently with staff of about 30) who is not appointed by the Chief Censor.

In answer to "questions for written answer" (due for 4 March 2002) put to the Minister by Mr Stephen Franks MP concerning the reasons for the non-appointment of a DCC, George Hawkins answered: "At its 9 May 2001 meeting, the Cabinet Appointments and Honours Committee [APH] noted that I was ending the appointment process to fill the position of Deputy Chief Censor of Film and Literature. A process to fill the vacancy ... was formally initiated in May 2000…. I am responsible for the administration of the appointment sections of the Act". [Ref. 2. Emphasis added].

In a letter dated 31 January 2002 the executive committee of the Society (SPCS) put the same question to the Minister, to which he replied:

"The appointment process for a Deputy Chief Censor was ended due to concerns at the amount of time taken to fill the vacancy and because it was agreed that there was merit in considering the extent to which the position contributes to the effective operation of the Office under the [FVPC] Act. Ministers made these decisions at a meeting of APH on 9 May 2001." [Ref. 3]

SPCS secretary David Lane says “the Minister’s answer is reminiscent of the evasion and gobbledygook so characteristic of Prime Minister Jim Hacker, aided and abetted by his PA Humphrey, in the television programme “Yes Minister”. Mr Hawkins, aided and abetted by Cabinet, has chosen to abrogate his statutory duty. However, he and his Cabinet colleagues are not above the law as we have pointed out publicly” [Ref. 4] (The Cabinet confirmed the decision of the APH Committee on 14 May 2001).

There were 70 applicants for the DCC position to which Bill Hastings was appointed in December 1998
[Ref. 5]. Mr Lane says “Suspending the law, using the lame excuse of a pending review of the law to do so, is against the law, as clearly established in the High Court case Fitzgerald v Muldoon [1975].”

“The Office of the Controller and Auditor-General investigated our complaint against the Minister” said Mr Lane [Ref. 6] “and advised us that it had no authority to intervene on the matters raised under the Public Audit Act 2001 [Ref. 7]. It took the view: ‘It is not for us to advise on legal issues or resolve matters of statutory interpretation. In our view, the courts would more appropriately address the further issues you have raised’ [Ref. 8] A judicial review to determine the legal position is thus the only option open to the Society to resolve the matter, as Mr Hawkins still argues that he is not duty-bound under section 79 (1) of the FVPC Act to ensure that the recruitment and appointment process for a DCC is completed. SPCS argues that he is, and that the Cabinet has been derelict in its duties in bringing to an end the recruitment and appointment process, and in the meantime looking at the option of doing away with the statutory position altogether.”

References.
Ref. 1 (Cab Min (01) 15/2).
Ref 2. Questions (001082, 001085, 001087) for written answer due for 4 March 2002
Ref. 3 Letter dated 27 Feb 2002. In response to SPCS OIR dated 31 Jan 2002.
Ref. 4. Letter, The Evening Post 1 February 2002.
Ref. 5. Dominion 30 October 1999, p. 18. "He sees what we won't" by Val Aldridge (Saturday People).
Ref. 6. See The Dominion, 19 Jan, p. 2.
Ref. 7. Letter of 28 January 2002. Signed Andrew McConnell, Sector Manager.
Ref. 8. Letter of 13 February 2002. Signed Terry McLaughlan Assistant Auditor-General.

Contact: David Lane M.Sc. (Hons.), Dip. Tchg.
Society spokesperson and secretary
Tel. (04) 970-1067 E-mail: david.lane@paradise.net.nz

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