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Chief Censor Ignores Court of Appeal on Baise-Moi

10 November 2005

Chief Censor Ignores Court of Appeal on Baise-Moi

In “The Chief Censor’s Year In Review” Bill Hastings has chosen to completely ignore the significant ruling of the Court of Appeal regarding “Baise-Moi” (transl. “Fu*k Me”), the second successful win in the courts by the Society against the Film and Literature Board of Review with respect to this offensive and sick publication.

In his selective review contained in the Annual Report 2005 of the Office of Film and Literature Classification (OFLC), that was tabled in parliament yesterday, Hastings claims:

“There were ONLY TWO JUDICIAL DECISIONS OF NOTE this year concerning the classification system. The first, Society for the Promotion of Community Standards v Elliott [Unreported, Wellington Registry, CIV-2004-485-1741, Mckenzie J, 27 August 2004] concluded that it was inappropriate to apply a high threshold test in terms of whether or not the President should issue an interim restriction order restraining the exhibition of film pending its review before the Board of Review.

“In the second, Society for the Promotion of Community Standards v Film and Literature Board of Review (Re Visitor Q), the Court of Appeal, in a 2:1 decision, decided that the Board had made a legal error in its classification of Visitor Q, and sent the film back to the Board for reconsideration [Unreported, CA 59/04, Anderson P, McGrath and Glazebrook JJ, 30 June 2005].

The mistake the Board made was that it failed to give reasons why it thought that attendees of film festivals would be informed of the film’s various meanings with educational material and why being informed of the film’s various meanings was sufficient to counter the injurious effects that the Board decided the film would otherwise produce.” [p. 13. Emphasis added]

The OFLC Annual Report covers the period 1 July 2004 to 30 June 2005. Perhaps the Chief Censor felt the Court of Appeal decision issued on 9 December 2004 on Baise-Moi was not at all significant. If so, we strongly disagree. It set the standard for censors to adhere to in all subsequent classifications.

Hasting’s position seems inconsistent with the effort his Office has made in the past to hail the earlier decisions of the Board on Baise-Moi, as a vindication of his Office’s compliance with the law when it comes to classification decisions. As a former Deputy President of the same Board he might well be delighted every time there is agreement.

In earlier Annual Reports, issued prior to the Court of Appeal decision on Baise-Moi, Hastings discussed the case in some detail. The OFLC News Archive (25.11.02) still provides a comprehensive report on the history of the classification of Baise-Moi up to the point where the Board had issued its first classification on 1 November 2002 and the Society had open to it a judicial review by the High Court. The report notes: “Baise-Moi has had more media coverage and informed public debate than any film in recent memory.”

See: http://www.censorship.govt.nz/news09.html

The Society submits that the 19-page Court of Appeal decision dated 9 December 2004 that upheld its appeal against the High Court decision issued by Goddard J on 11 November 2003 [(Goddard J, CIV-2002-485-235]; is very significant. In a unanimous decision at par. 48 the Court of Appeal did “allow the [Society’s] appeal in part”.

It corrected the determination of the Board dated 1 November 2002 (pars. [12] and [123]), that had been erroneously approved by the High Court. The Court of Appeal, represented by Anderson P, Chambers and O’Regan JJ, substituted a revised decision for that issued by the Board, having concluded that it had contained a legal error.

The Board’s decision dated 1 November 2002 was the second of its flawed classification decisions issued on Baise-Moi that the Society had successfully appealed against. The Board’s first decision dated 13 March 2003 was found by Hammond J. to contain legal errors, following an appeal brought by the Society. Hammond J. issued his decision on 23 July 2002 (AP76/02) and it required the Board to make a fresh classification decision, taking account of his ruling.

He found that the Board made a legal error by not considering Baise-Moi in other mediums. Earlier, on 12 April 2002, he had imposed an interim restriction order against Baise-Moi, temporarily preventing its exhibition, on application by the Society. This was the first time the High Court had issued an interim restriction order against a film.

The Court of Appeal would have been responsible for putting egg all over the faces of all the Board members if it had remitted the matter involving Baise-Moi back to it, in its decision dated 9 December 2004. To do so would have meant that the Courts would have issued a second decision requiring the Board to issue yet another corrected classification.

To avoid such a fiasco, the Court of Appeal used its special powers to effectively quash (in a technical sense) the Board’s decision and then correct it themselves. For this the president, Ms Claudia Elliott and her fellow Board members should be eternally grateful to the Court.

The Society’s actions in bringing this matter before the Court of Appeal resulted in a loophole being blocked that would have allowed the film “Baise-Moi” to be accessed by the adults when available in video or DVD format for home use. The Court of Appeal at par [51] criticised the Board for ignoring the clear directive given to it by Hammond J. It also highlighted the fact that the Hon. Justice France had ruled that “It appears the Board has not taken on board the ruling of he High Court” adding in its own words – “In our view, the Board ought to have done so”.

These are the same Board members whose terms of Office expired on 31 May 2004 and who the Society is calling the Minister to replace.


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