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High Court action: Minister and Vacant Censor


High Court action involving Minister and Vacant Censor

High Court proceedings have been brought against the Hon. George Hawkins, Minister of Internal Affairs, regarding a three-year vacancy in a statutory appointment in the Censor’s Office that he is responsible for. The case, which was scheduled for hearing in the Wellington High Court this morning, has been adjourned at the request of counsel for the Minister until next week Monday 23 September 2002 (Dom. 16/9, p.A8). The Society for the Promotion of Community Standards (“the Society”) is the applicant in the case.

The Chief Censor Bill Hastings “says there is no need for a Deputy Chief Censor as censorship decisions are already made in consultation with others.” He “says he effectively has four colleagues to help him make decisions, instead of just one. He made this statement in response to a call from the Society that a Deputy Chief Censor be appointed “amid controversy about the Chief Censor’s ruling on a violent and sexually explicit film” (Baise-Moi) (Ref. 1. One News Dec 18, 2001).

The current legislation, section 79(1) of the Films, Videos and Publications Classification Act 1993 (“the Act”), clearly stipulates that the Classification Office must have a Deputy Chief Censor. Section 80(1) stipulates that this position together with that of the Chief Censor are statutory appointments “made on the recommendation of the Minister”. Section 85(1) states that “the Chief Censor shall be responsible for matters of administration in relation to the Classification Office, including (a) The allocation of spheres of responsibility between the Chief Censor and the Deputy Chief Censor.” Section 85(2) states: “The Chief Censor and Deputy Chief Censor shall be responsible for the exercise of the functions and powers of the Classification Office under the Act.”

The clear and unequivocal intention of Parliament is that the executive of the Classification Office “shall consist of” two statutory appointments – a Chief Censor and a Deputy Chief Censor - both persons exercising together the “functions and powers” of the Office. However it has consisted of only one person, Mr Bill Hastings, since December 1998. The Minister’s failure to fulfil his statutory duty “has impacted negatively on the quality of classification decisions made by the Office under Mr Hasting’s leadership”, says Society President Rev Gordon Dempsey (Ref. 2). “For example, dozens of films, videos and DVDs juxtaposing extreme sexual violence, explicit sex and graphic violence have been cleared for general R18 classification in the last three years.

The Society has brought a High Court action against the Minister for his failure to comply with his statutory duty. The matter came before the Wellington High Court of 20 May and 19 August 2002. At the first hearing the Minister (the respondent) through Counsel - Mr John Oliver of the Crown Law Office - gave a firm undertaking to have the Deputy Chief Censor position filled by 31 July 2002. The Minister as expected failed to do so. At the 19 August hearing the Hon. Justice Ellis gave the Minister until 16 September 2002 to rectify the problem and make the appointment and a Court hearing was set for that date. As expected he failed to do so. The Minister, through his Counsel, sought an adjournment of that hearing until 23 September 2002 on the basis that the Minister needed more time to complete his statutory duty. This adjournment has been agreed to by Counsel for the applicant (the Society).

The Minister who has released two press releases this year confirming that he has every confidence in the Bill Hastings as Chief Censor has consistently stated that he has no statutory duty to ensure that the position of Deputy Chief Censor is filled. It has remained vacant for almost three years since 18 October 1999 when Bill Hastings was promoted from Deputy Chief Censor (Acting Chief Censor) to Chief Censor. The Minister only moved to advertise the vacancy, thus reactivating the recruitment and appointment process he had closed off, following the issuing of proceedings against him by the Society in the High Court on 28 March 2002. An advertisement for the job was published in the Dominion on 8 May 2002. It recorded that applications would close on 22 May 2002 and that the Department of Internal Affairs was administering the process.

Last year on 9th May Cabinet approved George Hawkin’s decision to end the recruitment and appointment process for the vacant DCC position, a process that had commenced in May 2000, seven months after the position became vacant. The Minister has stated that it 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 [Classification] Office under the Act” (Ref. 3). More recently, in Parliament on 12 September he stated: “In the intervening period, the Government has taken the opportunity to review this position, and has now concluded it will retain the position” (Ref. 4).

In answer to a question on 12 September in Parliament seeking an explanation for the 3-year delay in the appointment he stated: “I reviewed the need for a Deputy Chief Censor, and I came to the conclusion that there is a need for one” (Ref. 5). However, in a related case the High Court has already ruled that suspending the law, using the excuse of a pending review of the law, is against the law (Fitzgerald v. Muldoon [1975]). The Society argues that the Minister and the Cabinet were derelict in their respective duties in bringing to an end the recruitment and appointment process so that they could look at other options including the possibility of doing away with the statutory position altogether.

On 12 September the Minister was asked in parliament whether “the current legislation clearly stipulates that there must be a Deputy Chief Censor” (Ref. 6). After he emphatically denied that it did, the Hon. Winston Peters raised a point of order stating that the Minister had blatantly refuted the law that requires that there be an appointment and thereby had blatantly mislead the House. He said: that he was “going to bring a breach of privilege against it [the false statement]” (Ref. 7). Mr Hawkins returned to the Chamber just before the adjournment on Thursday evening and sought the leave of the House to correct his answer. He stated:

“I can confirm that the current legislation requires that there be a Deputy Chief Censor” (Ref. 8).

The Society has 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 respectively suggested that at this point costs can simply be reserved.

Mr Hasting’s reasons for his opposition to the appointment of a Deputy Chief Censor appear to have been expressed succinctly by his friend and former Victoria University Law Faculty colleague Mr Christopher Finlayson in a letter to the editor in The Evening Post 28 January 2002, p.8. His letter headlined “Attacks on Chief Censor ‘vulgar’”, clearly a defense of a personal friend, was written in response to calls that a Deputy Chief Censor be appointed.

“The Government should think carefully before deciding to spend around $150,000 a year of taxpayers' money on a position that seems to be tenuously justified by your correspondents…Mr Hastings has stated publicly that all classification decisions are taken collectively in accordance with the Act, and that no decision is issued until there is a consensus of opinion among the senior decision-makers. The appointment of a Deputy Chief Censor strikes me as a rather expensive way of adding yet one more voice to a decision-making process that already considers four or five opinions of people who have not been appointed by the Chief Censor.”

If this does indeed reflect the thinking of Mr Hastings, as many suspect, then it is clear that pragmatism (financial concerns) are more important to him than principle and fulfilling statutory responsibilities. It is this same pragmatism and disregard for the law that may have motivated the Classification Office to refuse to make excisions to the graphic rape scene in the film “Baise-Moi” (transl. “Fu** Me”). Their report dated 20 August signed by Mr Hastings stated:

“The overwhelming effect [of Baise-Moi], however, remains the shocking and unrelenting presentation of violence, much of which has been sexualised due to the association of these images with those of explicit sex. Many of the sexual images are presented using the constructs commonly seen in explicit material intended for adult sexual arousal [i.e. hard-core pornography]… After consideration and consultation, it is felt that excising this film is IMPRACTICABLE due to the frequency with which violence and sex is intercut throughout the publication, the subtleties in how this is presented, and the fact that the publication would be considerably altered in context were this done…. Removal of certain scenes including the explicit penetration shot during the rape scene, would distort the message that the film carries, as well as removing the context for what occurs in the film” (Emphasis added].

In a unanimous decision issued by the Australian Classification Review Board dated 10 May 2002 “Baise-Moi” was banned (originally it was classified R18). In Britain “the film has had a scene depicting an explicit penetration shot during a rape, excised from the publication prior to release” (R18) and “has been banned in Ontario because of explicit portrayals of sexual violence” (Ref. 9).

The Society President Rev. Gordon Dempsey says, “we are still awaiting the appointment of a Deputy Chief Censor. The whole process of appointment has been delayed unconscionably and the Minister has failed to discharge his responsibilities with all diligence. Making the appointment will go some way hopefully to provide a better balance of viewpoint within the executive and leadership as envisaged by parliament. We hope that the “mindset” that has allowed the release of films like “Baise-Moi” will be permanently excised from the Classification Office.”
References: Ref. 1. “Censor’s helping hand controversy” http://onenews.nzoom.com/onenews_detail/0,1227,72681-1-7,00.html Ref. 2 Society Media Release 19 August 2002-09-16 http://www.scoop.co.nz/archive/scoop/stories/c9/6f/200208190849.a6f9b074.html Ref. 3. Letter dated 27 February 2002. Mr Hawkins to Society. In response to Society’s Official Information Request dated 31 January 2002.

Ref. 4. Questions of the day transcript - 12 September 2002. Questions 1-12. Answer to question from Mr Peter Brown, Deputy Leader NZ First Party. Peter Brown: “Has the Minister sought any advice whatsoever to determine whether he has a statutory duty to ensure that a Deputy Chief Censor is appointed--a vacancy that has existed for a considerable period of time, since October 1999?” Ref. 5. Ibid. Answer to question from Judith Collins: “Does the Minister take any responsibility for the 3-year delay in the appointment of a Deputy Chief Censor; if not, who is to blame?” Ref. 6. Ibid. Answer to question from Peter Brown. Ref. 7. Ibid. Ref. 8. Radio NZ “The Week in Parliament” Sunday 7.35 p.m. Based on tape transcript. Ref. 9. OFLC decision Ref. No. 100334, pp. 11, 20. Ref. 9. Ibid. Footnote 2, page 18.

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