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High Court action against George Hawkins

The Society for the Promotion of Community Standards Inc.
P.O. Box 13-683 Johnsonville
Patrons
Sir John Kennedy-Good KBE QSO
Professor T.V. O’Donnell MD FRACP CBE
Marilyn Pryor
Founder Patricia Bartlett OBE

Media Release 19 May 2002

High Court action against George Hawkins

A judicial review of the perceived failure of the Minister of Internal Affairs, Hon George Hawkins (the respondent), to recommend the appointment of a Deputy Chief Censor (DCC) of Film and Literature under s. 80(1) of the Films, Videos and Publications Classification Act 1993 (“the Act”), is scheduled to come again before the High Court in Wellington at 10 am on Monday 19 August 2002. The applicant is the Society for the Promotion of Community Standards Inc. (SPCS) which will be represented by Dr George Barton QC. The respondent will be represented by Mr John Oliver from the Crown Law Office.

The Society is concerned that the position of DCC has been vacant since October 1999 and the Office of Film and Literature Classification (OFLC) has consequently been operating since December 1998, with only a one-person executive rather than two as required under the Act. Apart from the position of Chief Censor, currently occupied by Mr Bill Hastings whose 3-year term of office expires on 30 September 2002, the position of DCC is the only other statutory appointment in the OFLC. All other appointments to the office, which currently has a full-time staff of about 30, are made by the Chief Censor
Society President Rev. Gordon Dempsey says: “The one-person executive lacks balance and this deficiency would be corrected by the appointment of a DCC. This additional statutory appointment ensures an independence of viewpoint. The whole process of appointment has been delayed unconscionably and the Society seeks evidence that the Minister is discharging his responsibilities with all diligence. After all this is not a new appointment. It is one that should have been made long, long ago; and, furthermore, an appointment where the Minister appears to have recognised that he has not faced up to his responsibilities. It is noteworthy that there is no statement of defense from the Minister at all. Under the Act all that is required for the Minister to do is to obtain the concurrence of the Minister of Women’s Affairs and the Minister of Justice concerning his recommendation of a DCC. It is concurrence and not consultation that is required.”

The proceeding involving the Minister last came before the High Court on 20 May 2002 when the Society (SPCS), the applicant, sought to determine the legality of the Minister’s decision on 9 May 2001 to end the recruitment and appointment process for the vacant position of DCC, a process 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 by the Society’s solicitor, Mr John Bryson, in the High Court on 28 March and served on the Minister on 2 April 2002. After the proceeding was issued, the respondent (the Minister) notified the applicant that the Government intended to retain the position of DCC and that it would be advertised in early May 2002 with the intention of making an appointment by 31 July 2002. A press release to that effect was released by Hon George Hawkins on 18 April 2002.

An advertisement was published in the Dominion newspaper on 8 May 2002. It recorded that applications would close on 22 May 2002 and the Department of Internal Affairs was administering the appointment process.

Given the commitment made by the Minister to put right his failure to implement the law, counsel agreed that the applicant did not require the respondent to file a statement of defense at that stage. Counsel purposed that the proceeding be adjourned for a period of three months (until 31 July 2002) to enable the appointment process to be monitored and to ensure that it proceeded to a proper conclusion. As yet the Minister has not made a recommendation to the Appointments and Honours Committee of Cabinet regarding the DCC position.

The applicant put the respondent on notice that regardless of the outcome of the appointment process, the applicant will be seeking costs. That particular matter may require argument at some stage but counsel have respectfully suggested that at this point costs can simply be reserved.

Given the public nature of this proceeding, the applicant requested that the matter be called in open Court to enable the proceeding to be formally adjourned. The applicant required that the respondent confirm in open Court on 20 May that the appointment process had been properly instituted.

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 (OFLC). This Office, set up under the Films, Videos and Publications Classification Act 1993 (“the Act”), is a Crown entity. Both the positions of Chief Censor and DCC 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 Women’s Affairs. Section 85(2) of the Act states:

“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.”

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, Hon. 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].

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 and spokesperson, 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 had argued that he was 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 was 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.”

In concluding Society President Rev. Dempsey says: “The Society has at great expense sought to ensure that the Minister discharges his responsibility in relation to the DCC position. His failure to do so has impacted negatively on the quality of classification decisions made by the OFLC under Mr Hasting’s leadership.”

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.


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