Film Board To Revisit “Baise-Moi” Classification
The Society for the Promotion of Community Standards
PO BOX 13-683 JOHNSONVILLE
Sir John Kennedy-Good KBE QSO
Professor TV O'Donnell MD FRACP CBE
Founder Patricia Bartlett O.B.E.
2nd September 2002
Film Board To Revisit “Baise-Moi” Classification
The matter of the classification of a film described as setting a “new benchmark in terms of sadistic sexual violence” comes again before the nine-member Film and Literature Board of Review (“the Board”) at a public hearing to be held at 1.30 p.m. Tuesday 3 September 2002, at the Department of Internal Affairs, Wellington. Hamish Dixon, a registered psychologist and Manager of Wellington STOP, an agency that treats adult and adolescent sex offenders and provides support to their families, described “Baise-Moi” in these terms in his submission (30/8/02) to the Board. His preference is for the film to be banned as he is convinced it “supports attitudes that may lead to increased sexual violence in our society” and is “likely to contribute negatively to our society as a whole” as it is “injurious to the public good”. Auckland Rape Crisis and the Commissioner for Children, Hon.Roger McClay agree.
One party to the proceedings, the Society for the Promotion of Community Standards Inc. (“the Society”) will be making its oral presentations to the Board at 1.30 p.m. Written submissions have already been received by the Board from the film’s distributor, Auckland-based Metropolis Films Ltd, signed by managing director Gordon Adam. The Office of Film and Literature Classification (OFLC), headed by Chief Censor Bill Hastings, has made a 7-page submission and counsel for the Society, Peter D. McKenzie QC, has also made a submission.
Society President Rev. Gordon Dempsey says: “When the Films, Videos and Publications Classification Act (1993) (“the Act”) is properly applied by the Board to Baise-Moi, they can only but ban the film, or order a number of excisions to be made as a precondition for its restricted release.” He notes that “every year the OFLC either bans or requires excisions to be made to publications it classifies, including films, videos, DVDs and magazines.”
Baise-Moi was submitted in video format for classification on 20 March 2001 by the Secretary of Internal Affairs, as directed by the Chief Censor, under s13(1)(b) of the Act. In was classified R18 with its “availability … limited for the purpose of study in a tertiary media or film studies course or as part of a film festival organised by an incorporated film society.” The censor’s descriptive note was “Contains sexual violence, graphic violence and explicit sex.”
The Society appealed this decision to the Board under s.47 of the Act. The Board reviewed the decision, downgraded the classification to a general R18 release and removed any reference to “sexual violence” in the censor’s descriptive note. The decision dated 13 March 2002 in para 79 states: “The Board recommends that Baise-Moi be advertised and screened with the following warning: ‘This film contains frequent disturbing depictions of violence and repeated explicit sexual content’.” The Society took the view that nothing in this inadequate note was suggestive of the excessive, shocking and unrelenting level of sexual violence in the film.
It then appealed this decision to the High Court under s58 of the Act on a “question of law” and succeeded. In a decision dated 12 June 2002, Hon Justice Hammond ruled in para. 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.”
The Court observed that the Board made one error of law “in failing to have regard to the impact of the various mediums of formats in which this film might be presented” [para ). It also ruled that it may need to consider imposing conditions under s27(5) on the display of Baise-Moi and would need to do so in other mediums (para ).
The current re-classification of Baise-Moi by the Board is a classification de novo (a fresh appraisal). The film’s previous classification has been set aside by the High Court and the Board must proceed to reclassify it. No formal direction has been given to the parties to the proceedings by the Board president limiting submissions to those errors of law identified by Justice Hammond. The Board must consider all matters brought to its attention that are relevant to the re-classification of the film including the recent decision of the Australian Classification Review Board dated 10 May 2002, banning the film. This decision has been submitted to the Board by the Society.
Baise-Moi was to have had its New Zealand premiere in Auckland at the Civic Theatre on Saturday night 13 April as part of the Beck’s Incredible Film Festival, directed by Mr Anthony Timpson. Instead, along with two other films from the festival – Visitor Q and Bully – both also containing graphic scenes of sexual violence, it was pulled from the festival by the organiser. This was in response to a High Court order issued by Justice Hammond on 12 June that imposed an interim restriction order on Baise-Moi, following an application by the Society under s67 of the Act. This is the first time under the s67 such an order has been granted.
The Society’s detractors, like NZ Film Festival director Bill Gosden, have accused it of “malicious” intent and of “exploiting the appeal process” in the law in order to wreak a film festival, cause financial ruin to its organiser and seek to impose its “moral values” on others. The Society President calls these charges “utter nonsense”. He points out that it is “duty-bound to be an effective public watchdog and that the restriction order is only a temporary measure, imposed at the discretion of the Court. Furthermore, matters of public interest and Bill of Rights considerations were thoroughly taken into account by Justice Hammond before granting the order.”
The Board’s decision on Baise-Moi granting it a general R18 classification, was registered by the Classification Office on 13 March 2002 and published in the April List of OFLC Decisions on 15 April. Under s 59(1) an applicant for appeal to the High Court against a decision of the Board has “20 working days after the date of the determination” to register an appeal with the High Court. In this case the ‘window of opportunity’ within which an applicant could have lodged an appeal, ran from 13 March to Friday 12 April. The Society lodged its application on Thursday 28 March, well within this appeal time-frame. Its solicitor served the High Court documents on the Classification Office and the film distributor, Metropolis Films Ltd that day.
Once the appeal had been granted by the High Court, and only then, the Society was entitled to apply to the Court for an interim restriction order to be granted in respect of the film. The Society moved swiftly to make the application and the timing of the granting of the order was in the hands of the Court. Justice Hammond saw merit in the Society’s submission, listened to the submission from counsel acting for Mr Timpson who opposed the application; took consideration of “public interest “ matters, and then ruled in favour of the Society imposing the order on 12 April.
The fact that Mr Timpson had no replacement film at hand following the temporary ban on Baise-Moi was not the fault of the Society, only his own. He ran the very real risk of scheduling a controversial film in his festival only three days out from the end of the appeal period. He wrote in his festival brochure introduction:
“Most of these films won’t have a censor classification by the time this guide goes to print … And believe me, some of these films will be very lucky if they manage to slip past the realm of the censors… Never before has a film [Baise-Moi] caused this much controversy in New Zealand without even being released. As this is being typed the Classification Boards original decision is being appealed, so we’re unsure that it will even be screening.”
The intention of Parliament in allowing for an appeal process as outlined under ss. 47/48 and 58/59 of the Act, with respect to decisions issued by the Board and High Court, respectively, is very clear. It is to provide an opportunity for the applicant to seek redress with respect to a given classification decision within a well-defined statutory framework.
Society President Rev Gordon Dempsey says “the Board will need to provide good reasons why Baise-Moi which the Sociey will demonstrate glamourises graphic violence throughout, constantly juxtaposing it with explicit sex, should not be cut or banned.” He asks: “What more needs to be added for this film to be deemed objectionable under s 3(2) of the Act? The Classification Office has recognised that the litany of graphic violence and explicit sex that intercuts throughout the publication, is so pervasive that it would be quite impracticable to even attempt to limit objectionable material via excisions! There’s just too much of it, that little would be left of the film if one applied the ‘knife’ consistently!”