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High Court Rules Against President of Board


High Court Rules Against President of Board of Review Re "Irreversible"

The Society For The Promotion Of Community Standards Inc. P.O. Box 13-863 Johnsonville SPCSNZ@hotmail.com http://www.spcs.org.nz

On 26 August 2004, in the Wellington High Court, the Society, represented by Wellington barrister Mr Lance Pratley, challenged the decision of the president of the Film and Literature Board of Review, Ms Claudia Esther Elliott, dated 17 August 2004, not to grant an interim restriction order against the French film "Irreversible" which features a nine minute anal rape scene of a woman by a drug-crazed homosexual. The plaintiff (the Society) submitted that the president's decision contained five errors of law. In his judgment dated 27 August 2004 the Hon. Justice MacKenzie upheld two of the grounds advanced by the Society and ordered Ms Elliott (the first defendant) to reconsider her decision in the light of the Court's findings. His decision states:

“Ground 1: I hold that the President has applied an incorrect test in considering whether there was an arguable (or obvious) error (whether of law or otherwise) in the decision of the OFLC [the Office of Film and Literature Classification, the second defendant).

“Ground 4: I hold that the President has applied an incorrect test in regarding as relevant the high threshold applicable to a restriction on publication pending resolution of litigation in defamation and similar cases.

“In the light of my decision on Grounds 1 and 4, I cannot be confident that the President would have reached the decision she did if the correct tests had been applied. Accordingly, I consider that the appropriate course is for me to direct the President, pursuant to s 4(5) of the Judicature Amendment Act 1972, to reconsider the plaintiff’s application, in accordance with the principles expressed in this judgment. I so direct.”

To read the complete High Court judgment of A D MacKenzie J see Appendix below).

APPENDIX

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2004-485-1741

UNDER the Judicature Amendment Act 1972 (Part I)

AND UNDER Rule 626 of the High Court Rules

BETWEEN SOCIETY FOR THE PROMOTION OF COMMUNITY STANDARDS INC

Plaintiff

AND CLAUDIA ESTHER ELLIOTT

First Defendant

AND THE OFFICE OF FILM AND LITERATURE CLASSIFICATION

Second Defendant

AND ACCENT FILM ENTERTAINMENT PTY LIMITED

Third Defendant

AND AUCKLAND RAPE CRISIS INC

Fourth Defendant

Hearing: 26 August 2004

Appearances: L Pratley for the plaintiff. J A L Oliver for the first and second defendants

Judgment: 27 August 2004

JUDGMENT OF MACKENZIE J

Introduction

[1] This is an application for judicial review under the Judicature Amendment Act 1972, in respect of a decision of the first defendant, the President of the Film and Literature Board of Review, made on an application by the plaintiff under s 49 of the Films, Videos and Publications Classification Act 1993. In that decision, the first defendant refused an application for an interim restriction order in respect of the film “Irreversible”.

Background

[2] Some history is relevant. The film was first given a classification by the second defendant in April 2003. The plaintiff was given leave under s 47 of the Act to seek a review of the film by the Board. The plaintiff made application on 26th May 2003 for an interim restriction order under s 49. That application was refused by a decision dated 30 May 2003. The plaintiff applied for judicial review of that decision, and the decision in respect of another film which was under consideration at the same time. That application was heard by Ronald Young J on 12 June 2003 and judgment was delivered on 16 June. I will need to refer to those proceedings later. Suffice to say at present that the President’s decision was not disturbed. Ultimately, the plaintiff did not proceed with its application for review under s 47.

[3] The classification given to the film at that stage was to the effect that it was R18, and to be available only for the purpose of exhibition as part of a film festival, or for the purposes of study in a tertiary institution. The film was screened at Becks Incredible Film Festival in June/July 2003. [4] Application was made for a reconsideration of that classification under s 42(3) of the Act, and a decision was made by the second defendant (“OFLC”) on 28 July 2004. The new classification was “objectionable except if the availability of the publication is restricted to persons who have attained the age of 18 years and for the purposes of theatrical exhibition or study in tertiary institutions only”.

[5] The effect of that classification was to permit the release of the film for screening at general cinemas in New Zealand on an R18 basis, with a warning which was also required. Thus, the limitation that it be shown only at a film festival was removed. Beyond that, availability was not extended.

[6] The OFLC decision was registered on 29 July 2004, and on 30 July 2004 the plaintiff applied to the Secretary of Internal Affairs under s 47(3) of the Act for leave to review the classification of the film. Leave was granted on 5 August 2004. On the same day, the plaintiff lodged an application for the making of an interim restriction order by the President under s 49 of the Act. The first defendant, the President, delivered her decision on the application on 17 August 2004. In that decision, the President refused the plaintiff’s application and declined to make an interim restriction order. This application for judicial review of the President’s decision was filed on 19 August. It came before Wild J by way of a judicial conference pursuant to s 10 of the Judicature Amendment Act 1972 on 23 August. It was directed to be heard on 26 August.

Grounds for judicial review

[7] It is not in dispute that the consideration of an application for an interim restriction order under s 49 of the Act involves the exercise of a statutory power, and that judicial review under the Judicature Amendment Act 1972 is accordingly available.

[8] The plaintiff alleges that a number of errors of law were made by the President in her decision. These alleged errors of law may be summarised as follows:

That she wrongly required that there be an “obvious error” in the Classification Office rating. The plaintiff submits that an “obvious error” is at a higher threshold than the law requires, and that that threshold is that of an “arguable error”.

In reaching her decision, the President placed undue weight on current international ratings, and in particular the Australian Review Board rating, and failed properly to direct her attention to the classification provisions of the New Zealand legislation, and, further, did not direct attention to matters raised in the plaintiff’s submission.

That she wrongly treated an interim restriction order as imposing a “classification”, whereas the making of an interim restriction order does not constitute the making of a classification under the Act.

That she wrongly applied the provisions of the New Zealand Bill of Rights Act 1990; in particular, that she placed undue reliance on decisions dealing with the imposition of a prior constraint on a publication, and accordingly required too high a threshold when dealing with the application of the New Zealand Bill of Rights Act and failed to have proper regard to the interim nature of an interim restriction order.

In applying the New Zealand Bill of Rights Act, the President failed to have regard to the number of screenings and unrestricted length of screening season available under a general R18 classification and her decision in equating this in substance to the Becks Incredible Film Festival is manifestly unreasonable.

[9] The first defendant in its statement of defence, and in counsel’s submissions, joins issue with each of those grounds.

The legislation

[10] A very brief review of the relevant parts of the legislation is desirable. The primary function of classifying films is reposed in the OFLC. The OFLC is required to classify films submitted to it, and to maintain a register of the classification decisions made by it. Part 4 of the Act deals with review of classification decisions. Section 47 provides for a number of categories of persons who are entitled, on application, to have the publication reviewed by the Board. Those categories include, with the leave of the Secretary, any person other than those to whom rights of review without leave are conferred. Any application for review must be lodged within 30 working days after the decision of the OFLC has been listed as required by s 40. Section 49 provides as follows:

49.Interim restriction orders

(1) Any person who is entitled, under section 53(2) of this Act, to make written submissions to the Board in relation to a publication submitted for review under section 47 of this Act may, at any time before the review is completed, apply to the President of the Board for an interim restriction order in respect of the publication to which the review relates, and the President may, if satisfied that it is in the public interest to do so, make such an order accordingly.

(2)Every application under subsection (1) of this section shall be dealt with as soon as practicable.

(3)While an interim restriction order is in force, no person who has knowledge of the making of that order shall do any act or thing in relation to the publication to which the order relates that would be an offence against paragraph (c) or paragraph (d) or paragraph (e) of section 123(1) of this Act or against section 127 or section 129 of this Act if that publication were an objectionable publication.

[11] Section 52 provides as follows:

52. Conduct of reviews

Every review under this Part of this Act shall be conducted as soon as practicable.

Every review under this Part of this Act shall be by way of re-examination of the publication by the Board without regard to the decision of the Classification Office.

The Board shall examine any publication submitted to it under section 47 of this Act to determine the classification of the publication.

In determining the classification of any publication, the Board shall take into account the matters referred to in section 3 of this Act.

[12] Part 5 of the Act deals with appeals against decisions of the Board. Section 58 gives a right of appeal against a decision of the Board on a question of law. Where an appeal is lodged, the High Court has power to make an interim restriction order. That power is contained in s 67:

67. Imposition of interim restrictions on appeal

Any party to an appeal under section 58 of this Act may apply on notice to the High Court or a Judge of that Court for an interim restriction order in respect of the publication that is the subject of the appeal, and the Court or Judge may, if satisfied that it is in the public interest to do so, make such an order accordingly.

Every application under subsection (1) of this section shall be dealt with as soon as practicable.

While an interim restriction order is in force, no person who has knowledge of the making of that order shall do any act or thing in relation to the publication to which the order relates that would be an offence against paragraph (c) or paragraph (d) or paragraph (e) of section 123(1) of this Act or against section 127 or section 129 of this Act if that publication were an objectionable publication.

Relevant authorities

[13] As that brief summary of the legislation shows, there are two provisions, worded in very similar terms, which provide for interim restriction orders to be granted, under s 49 by the President, and under s 67 by the Court. There is only one previous decision of this Court, counsel informed me, in relation to s 49. That is the decision of Ronald Young J to which I referred earlier: Society for the Promotion of Community Standards Inc v Elliott (CIV-03-485-1117, High Court, Wellington, 16 June 2003). That case, like this, was an application for judicial review in respect of a decision by the President to refuse to grant interim restriction orders in respect of two films, one of them the film in issue in this case. There, at the commencement of the hearing, counsel for the President advised that she accepted that an error of law had been made in her interpretation of alleged delay by the plaintiff in bringing the application for interim restriction. Accordingly, Ronald Young J was not required to deal with the application in any substantive way. This is therefore the first case in which the provisions of s 49 have had to be fully considered by this Court.

[14] There are two decisions under s 67 which need to be mentioned. These are the decisions of Hammond J in Re Society for the Promotion of Community Standards Inc (No. 1) [2002] NZAR 884, and of France J in Re Society for the Promotion of Community Standards Inc (No. 3) [2003] NZAR 200. Both of those decisions deal with the matters which are to be taken into account by the Court in considering an application under s 67. Because s 67 and s 49 are similarly worded, those decisions under s 67 give some helpful guidance to what are relevant matters for an application under s 49. However, although the two sections are similarly worded, they deal with different stages in the process. Accordingly, some care is needed in applying the principles which have been established in relation to applications under s 67 to an application under s 49. I deal in more detail with those decisions in my discussion of the plaintiff’s grounds of application for judicial review.

Discussion

Ground 1 – obvious error/arguable error

[15] In her decision, the President said:

[153] The Hammond J decision states I must consider if there is an arguable error in the Classification Office decision. The Classification Office has provided information of international classifications for “Irreversible”

[16] After discussing this, the President said:

[158] The President cannot in line with the current international ratings and in particular the Australian Review Board rating, find that there is any obvious error in the Classification Office rating for “Irreversible”

[17] In short, the plaintiff’s submission is that the President directed herself that she must consider if there was an arguable error in the decision, but then wrongly applied a test of whether there was an obvious error.

[18] The proposition that the presence or otherwise of an error of law in the decision is relevant in an application under s 67 is derived from the following passage in Hammond J’s decision:

[30] Counsel knows of no previous application under s 67. Both counsel were of the view that some assistance might be had from the way in which this Court has approached applications for interim relief under s 8 of the Judicature Amendment Act 1972.

[31] In a general way that may be so, but the provision stands on its own feet. Certain general observations may be made on it:

First, it must be squarely kept in mind that an appeal to this Court is restricted to points of law. Even on the merit appeal, this Court has no power to substitute its views, whatever they might be, on the merits of the screening of this film for those of the Board. The central task of this Court is to see that the Board stays within the proper bounds of its enabling legislation – or as it is sometimes put, more shortly, to see that the Board acts “lawfully”. But there is of course the question of what is meant by a point of law, and I will have more to say about that shortly.

Secondly, although s 67 gives this Court a broad discretion to restrict publication pending the appeal, “if it is satisfied in the public interest that it should do so”, that power does not exist in a vacuum. It has to be exercised having regard to the purposes of this Act itself.

Thirdly, this is essentially a prophylactic jurisdiction – it is designed to enable the preservation of the status quo until such time as the merits of an appeal have been resolved. Otherwise an appeal would be rendered nugatory.

[32] If the Society can establish that the Board made an error of law, that would not necessarily enable this Court to substitute its own views as to whether the film can be shown. The relief would normally be that this Court would remit the classification back to the Board for determination according to the law as found. The short point here is really a practical one. It will normally be quite undesirable to have a film screen when there is a real possibility that a reconsideration according to law might result in a different or revised classification.

[19] France J cited paragraph 31 with approval in Re Society for the Promotion of Community Standards Inc (No 3).

[20] The different stages in the process at which ss 49 and 67 apply, to which I have already referred, are relevant. Section 67 applies in the context of an appeal, where the right of appeal is restricted to points of law. Section 49 applies in respect of an application for review of a decision of the OFLC. Such a review is not confined to errors of law. Under s 52 the Board is required to consider the classification de novo, without regard to the decision of the OFLC. Accordingly, the first of the three matters noted by Hammond J in para 31 has no application in relation to s 49. I see no basis on which a test of whether an error of law, whether arguable or obvious, should be applied in considering an application under s 49. The Board will, on the review, not be concerned with whether there are errors of law in the decision of the OFLC. There is accordingly no justification for using that as a test of whether an interim restraint pending review is appropriate.

[21] The President in her decision does not specifically refer to an error of law, but simply an error. However, given that she has based that test upon the Hammond J decision, it seems that she must have had in mind an error of law, rather than some other error.

[22] I consider that s 49 does not require an examination of the decision of the OFLC, to identify whether there are errors, whether of law or otherwise, in that decision. Nor do I consider that it is necessary for the President to view the publication in question to form some preliminary view as to the classification which the Board might think appropriate, or whether the OFLC’s classification is clearly wrong. To do so would require the President to form, in advance of its consideration by the Board of which the President is a member, a view of the merits of the application for review, and of the appropriate classification. To require that would compromise the integrity of the review process. Accordingly, I do not consider that it is incumbent upon an applicant for an interim restriction order under s 49, as opposed to s 67, to show that the application for review has prospects of success, in the sense that the applicant has an arguable case that the Board may alter the classification by the OFLC.

Ground 2 – Undue weight on international ratings

[24] The plaintiff’s second ground for review alleges that the President placed undue weight on current international ratings and, in particular, the Australian Review Board rating. Mr Pratley submits that the Australian rating system is different from the New Zealand system. Mr Oliver agrees with that proposition, and describes the New Zealand system as unique.

[24] Whether international ratings are a consideration which OFLC, or the Board on review, is entitled to take into account in assessing the classification of a film is not an issue which is before me, The question for me is whether the President is entitled to take into account the conditions upon which a film has been released in other countries, in determining whether it is in the public interest to grant an interim restriction order in New Zealand. I find nothing in the scheme of the Act which would lead to the conclusion that the President was not entitled to take that matter into account, if in a particular case the President considered that relevant to the public interest test.

Ground 3 – Interim restriction order and classification

[25] Counsel for the plaintiff submits that the making of an interim restriction order does not constitute the making of any “classification” under the Act. That submission is undoubtedly correct. An interim restriction order is precisely what it says, an interim order restricting publication in the manner described in s 49(3). I do not consider that the wording of the paragraph in question is such that I should conclude that the President has erred in law in her assessment of what is involved in an interim restriction order. The decision is a lengthy one, but was obviously prepared, as necessarily it must be, under some pressure of time. Some impression of language in such circumstances is understandable. Indeed, it appears quite clear that the word “more” has been omitted in line 1 of that paragraph. I do not consider, when the decision is read as a whole, that the reference to a restrictive classification by way of interim restriction order indicates any misapprehension by the President as to the distinction between a classification and an interim restriction order. The fact is that an interim restriction order, if granted, would be more restrictive than the classification imposed by the OFLC. I do not read the decision as saying more than that, on this point.

Ground 4 – New Zealand Bill of Rights Act 1990

[27] The plaintiff submits that the President wrongly applied the provisions of the New Zealand Bill of Rights Act 1990, in particular by placing reliance on decisions dealing with the imposition of a prior constraint on a publication where the courts have required “a much higher threshold than the arguable case threshold”.

[28] The President relied upon TV3 Network Services Ltd v Fahey [1999] 2 NZLR 129, and Auckland Area Health Board v Television New Zealand Ltd [1992] 3 NZLR 406. Both of those cases concern applications for interim injunctions to restrain the publication of allegedly defamatory material. As Richardson P noted in TV3 Network Services Ltd v Fahey, at p 132:

The Court has jurisdiction to restrain the publication of defamatory matter but it is exercisable only for clear and compelling reasons.

[29] The President referred to other cases, in particular Attorney General for the United Kingdom v Wellington Newspapers Ltd (No. 2) [1988] 1 NZLR 180 (“the Spycatcher case”) and Television New Zealand v Solicitor-General [1989] 1 NZLR 1 and said:

The proposition that prior restraint requires strong justification is not limited to defamation proceedings.

[30] I do not consider that the principles set out in those cases are relevant to consideration of an application under s 49. An application under s 49 is not, in my view, to be equated with the situation in the defamation cases, or in relation to breach of confidence (the “Spycatcher case”) or suppression in the context of criminal proceedings (the TVNZ case). The starting point under the Act is that every film must have a clearance, either by means of labelling requirements, or by means of a classification by OFLC. Until a classification is obtained, a film may not lawfully be exhibited. Accordingly, a “prior restraint on publication” is expressly provided for in the legislation. The legislation also provides, as part of the statutory procedure for classification, a right of review, and the ability to make an interim restriction order while that review is conducted. Accordingly, an interim restriction order is in my view to be seen as part of the statutory process which is to be followed before a film can be exhibited. Although the Act does not prohibit publication until the statutory process has run its course, it does provide for restriction until the statutory process has run its course, in appropriate cases. Having regard to the scheme of this Act, I consider that it is incorrect to equate the making of an interim restriction order with a restraint on prior publication of the sort involved in the cases relied on by the President. I consider that it is wrong to apply the high threshold test used in those cases to the making of an interim restriction order.

[31] In this regard, it is necessary to bear in mind the third of the factors mentioned by Hammond J, namely that the making of an interim restriction order is essentially a prophylactic jurisdiction, designed to enable the preservation of the status quo until such time as the merits of the review have been resolved. Otherwise a review might be rendered nugatory. As France J said (at para 15):

The short point, Hammond J states, is that it will normally be undesirable to have a film screen where there is a real possibility that a reconsideration according to law might result in a different or revised classification.

In my view, similar considerations apply at the review stage.

[32] The consideration to which I have referred also deal, at least inferentially, with the issue of the application of the New Zealand Bill of Rights Act. The inroad into the right of freedom of expression affirmed by s 14 of the Act may be subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. I do not intend to embark upon an analysis of the way in which the balancing exercise required by the Act is to be conducted. The approach described in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 is well known and I need venture no further comment or gloss upon that. The only point which is necessary to emphasise here is that, in conducting the balancing exercise, one of the factors to be taken into account is that an order under s 49 is of an interim nature only. Restriction on the rights contained in the Bill of Rights Act, which, if they were permanent, would not be justified, might well be justified for a limited period, so that the public interest can be protected while a full consideration of the issues can be undertaken.

Ground 5 – The number of screenings

[33] The fifth ground of review is that the President failed to have regard to the number of screenings and unrestricted length of screening season available under a general R18 classification and that her decision in equating this in substance to the Becks Incredible Film Festival was manifestly unreasonable. The President dealt with this issue at paragraph 163. She said:

[163] “Irreversible” has been screened at the Becks Incredible Film Festival to an audience of 18 years and over [in] 2003. What is now being sought is that “Irreversible” be screened to theatre audiences beyond the Incredible Film Festival but still to patrons over the age of 18 years. The Becks Incredible Film Festival does not limits its viewers to, for instance, members of a Film Society, and therefore the only extension of the viewing audience will be to areas outside of the centres where the Becks Incredible Film Festival was held.

[34] I do not consider that the President has applied an incorrect test. The information as to the screenings which were to take place, and that they had commenced on 5 August 2004, was clearly before the President. There is no evidence that she has overlooked that. In the passage quoted, I do not take the President as doing more than stating the rather obvious proposition that the public may attend a film festival, so that the restriction which is now to be removed will simply permit a wider range of exhibition to the public, rather than change the character of the persons to whom exhibition may be made.

General

[35] Since the issue of whether an arguable error of law has been identified by the applicant for an interim restriction order is not an appropriate test under s 49, that raises the question of what are appropriate considerations. The second of the factors mentioned by Hammond J is relevant in this regard. The power to restrict publication pending review does not exist in a vacuum and has to be exercised having regard to the purposes of the Act itself.

[36] When one examines the provisions of the Act as to review, it is clear that the Act contemplates that a classification by OFLC will become immediately effective. Its effect is not delayed until the decision is included in the list, or until the period for applying for a review has expired. That period is 30 working days. Mr Oliver indicated that the practice is to wait until that period has expired before considering for review, even if an application has been made earlier. That is to avoid the possibility of the Board having to conduct more than one review in relation to a particular decision.

[37] However, although the Act contemplates that a decision will become effective pending review, and there is no automatic suspension of the decision pending review, there is power to make an interim restriction order. It does not seem to me appropriate that a high threshold test should be applied in terms of whether or not an interim restriction order should be made. The test is whether it is in the public interest to do so. That may require a consideration of a wide range of matters, relevant to the circumstances of individual cases. I do not consider that it is desirable to attempt to comprehensively list the type of considerations which might be relevant. To do so might detract from the ability of he President to have regard to a particular matter which may be relevant to the public interest in a particular case. Accordingly, I have not dealt with any matters other than those in issue in these proceedings. That does not mean that those are the only relevant considerations. A decision as to what considerations are relevant, in any particular case is, in the first instance, a matter for the President,

Decision

[38] In the light of that discussion, my decision on each of the grounds of review is as follows:

Ground 1: I hold that the President has applied an incorrect test in considering whether there was an arguable (or obvious) error (whether of law or otherwise) in the decision of the OFLC.

Ground 2: I hold that the President has not erred in the respects claimed under this ground.

Ground 3: I hold that the President has not erred under this ground.

Ground 4: I hold that the President has applied an incorrect test in regarding as relevant the high threshold applicable to a restriction on publication pending resolution of litigation in defamation and similar cases.

Ground 5: I hold that the President has not erred under this ground.

[39] In the light of my decision on Grounds 1 and 4, I cannot be confident that the President would have reached the decision she did if the correct tests had been applied. Accordingly, I consider that the appropriate course is for me to direct the President, pursuant to s 4(5) of the Judicature Amendment Act 1972, to reconsider the plaintiff’s application, in accordance with the principles expressed in this judgment. I so direct.

Costs

[40] The plaintiff brings these proceedings on a public interest basis. In the circumstances, I make no order as to costs.

A D MacKenzie J

Signed at 4.15 p.m. this 27th day of August 2004

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