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Appeal On “Baise-Moi” Succeeds Against Film Board

The Society for the Promotion of Community Standards Inc.

Sir John Kennedy-Good KBE QSO
Professor TV O'Donnell MD FRACP CBE
Marilyn Pryor
Founder Patricia Bartlett O.B.E.

Released 2 p.m. Wednesday 24 July 2002

Appeal On “Baise-Moi” Succeeds Against Film Board

The Hon. Justice R.G. Hammond delivered his reserved decision on the classification decision with respect to the French sex-violence film “Baise-Moi” at 2 p.m. on Tuesday 23rd July 2002. This High Court judgement (AP 76/02) involved the case of an appeal by the Society for the Promotion of Community Standards Inc. (SPCS) against a determination of the nine-member Film and Literature Board of Review. The appeal was successful.

Mr Peter McKenzie QC and Mr Paul Rishworth, Associate Professor of Law at Auckland University, represented the Society in the High Court hearings held over two days last month in Wellington (11-12 June).

In his judgement Justice Hammond set aside the decision of the Board (dated 13 March 2002) that had given the film “Baise-Moi” a general R18 classification and remitted it back to the Board for reconsideration in the light of the observations made by the Court. In consequence, the interim restriction order has been set aside. Until such time as the Board reconsiders the classification of the film, there is no classification in full force and effect, and the film cannot be shown.

The Board members responsible for the classification decision that has now been set aside on the basis of the finding that the Board “err[ed] in law” are: Claudia Elliott (President), Greg Presland (Vice-President), Mark Anderson, Peter Cartwright, Dr Brian McDonnell, Pamela Meekings-Stewart, Marion Orme, Dr Lalita Rajasingham and Stephen Stehlin. (Peter Cartwright, husband of Governor-General Dame Silvia Cartwright is perhaps best known. He is currently the Chairperson of the Broadcasting Standards Authority [BSA], the statutory body set up to rule on public complaints regarding material considered “objectionable” that has been presented on television or radio. He served for some years as Chair of the Indecent Publications Tribunal).

The Society executive has released its initial response to the judgement:

“The judgement of Justice Hammond is a triumph for all victims of sexual violence, serial killings and other forms of criminal violence, as well as for all who strive for a decent society free from sexual violence and all forms of degrading and dehumanising attacks on the dignity of the human person. It is a recognition that there is a very real likelihood of harm to the public good from the dissemination of, and exposure to, material that tends to glamourise the juxtaposing of sexual violence and graphic violence for the purposes of so-called entertainment.”

“[In our view] the Board will need to apply a proportionate remedy by way of a new classification decision to take account of its own finding that the degree of harm was ‘high’.”

The Society’s successful ground of the appeal was the failure by the Board to consider the impact of other media, for example video and television. Justice Hammond stated in par. 82 under the heading “Failure to Consider the Impact of the Classification of Baise-Moi on a Medium Other Than Film”.

“… the Board did err in law in this instance in failing to have regard to the impact of the various mediums of formats in which this film might be presented. Effectively, what the Board has done is to read down s. 4(b) and s. 4(f) to the narrowest possible reading, as meaning something along the lines of, ‘the way in which the subject matter is presently to be presented’….”

Subsections 4(b) and 4(c) come from s. 3 of the Films, Videos, and Publications Classification Act (1993) that defines the meaning of the term “objectionable” (publication): “In determining, for the purposes of this Act, whether or not any publication (other than a publication to which subsection [2] of this section applies) is objectionable or should be given a classification other than objectionable, the following matters shall also be considered: … (b) The impact of the medium in which the publication is presented… (f) Any other relevant circumstances relating to the intended or likely use of the publication.”

And from par. 84 of Justice Hammond’s judgement:

“… the Board failed to have regard to the (relevant) considerations to which I have just been referring. It follows that it is appropriate to allow the appeal, and to remit the case to the Board for a reconsideration of the classification of Baise-Moi in light of the view taken of the statutory provisions which I have just set out.”

In his conclusion to the judgement he stated [pars. 89 –91].

[89] “In the result, the appeal is allowed. The decision of the Board is set aside. The proceeding is remitted to the Board for reconsideration in light of the observations made by this Court.

[90] “In consequence, the interim restriction order is set aside. This is because it is not now needed. Until such time as the Board reconsiders the classification of the film, there is no classification in full force and effect, and the film cannot be shown….”

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