Minister’s Board Appointment Process A Sham
Press Release 10/05/06
Minister’s Board Appointment Process A Sham
The Society is calling on the Minister of Internal Affairs, the Hon. Rick Barker, to explain why he has seen fit to reappoint eight members of the Film and Literature Board of Review whose decisions have given the thumbs up for public cinema operators to screen films containing gratuitous and explicit depictions of rape (Baise-Moi, Irreversible), necrophilia - the sexual violation of corpses - (Visitor Q), and the sexual degradation, dehumanising and demeaning of women for the purposes of entertainment.
The Society understands that a good number of highly qualified people were nominated to the eight vacant Board positions, which were not advertised by the Minister until early December 2005, a full 18 months after the positions first became vacant. None were appointed. (The Minister first announced the eight board reappointments in a press release dated 8 May 2006).
The Society is also asking Mr Barker to explain why he has flouted the spirit (if not the letter) of the law by appointing the Board President Ms Claudia Elliott and board member Mark Anderson, for another period of three years, after they have both served terms on the board of nearly five years. Since their first three-year terms of office expired on 31 May 2004 they have remained in office for 23 months, during which period the responsible Ministers (Hon. George Hawkins and Hon. Rick Barker) have failed to either reappoint them, appoint successors, or formally dismiss them.
Section 94 of the Films, Videos and Publications Classification Act 1993 (“the Act”) states:
“… every member of the Board may be appointed for any period not exceeding 3 years, and may be reappointed for one further period not exceeding 3 years.” [Emphasis added]
Section 95 – entitled “Continuation in office after term expires” - states:
“… every member of the Board whose term of office has expired shall, unless he or she sooner dies or vacates office …. Continue to hold office, by virtue of the appointment for the term that has expired, until –
That member is reappointed; or
(b) A successor to that member is reappointed; or
(c) That member is informed in writing by the Minister that the member is not to be reappointed and is not to hold office until a successor is appointed.”
It is clear that the intention of parliament was to put a six-year upper limit on the period a member could serve on the Board of Review, a task that involves viewing “objectionable” film content including hard-core porn. A reappointment period should never be recommended by the Minister that allows any member to serve on the board beyond the six-year limit. Instead of re-appointing Ms Elliott and Mr Anderson so that their terms expire within the six-year maximum term period provided in law, the Minister has re-appointed them from 20 April 2006 until 31 March 2009. This cements them in place for an eight-year continuous period (2001-2009), when the intention of parliament was clearly to limit the duration of such terms in office to six years maximum (2001-2007).
The Society is also asking the Minister to explain why he has seen fit to re-appoint three other members of the Board – the Deputy president, Greg Presland, Dr Brian McConnell and Marion Orme as members from 20 April 2006 until 31 March 2008 – allowing them to serve for seven continuous years on the board (2001-2008), beyond the time period prescribed in law (six years).
The Minister’s decision to re-appoint Peter Cartwright, Dr Lalita Rajasingham and Stephen Stehlin for terms commencing on 20 April 2006 and concluding on 31 March 2007 does conform with the Act. Their period of Board membership cannot exceed the six-year time limit.
The Minister’s lame-duck excuses for not resolving this board appointment fiasco that has festered for almost two years, are based on the following spurious reasoning:
(1) His claim that his predecessor the Hon. George Hawkins secured a commitment from all eight members that they were prepared to stay on the Board beyond the expiry date of 31 May 2004 as long as it was required until the appointment process was completed. This deal, for him, secures the legitimacy of the 23 month long hiatus-debacle.
(2) The government had a bill before the Government Administration Committee in March 2004 recommending among other things that the number of board members, currently nine under the Act (maximum), should be reduced to six. Consequently, the government was unable to commence or complete appointment process because a law change might result in some members being dropped after appointments had been made.
(3) The intervention of the 2005 election during the ‘appointment hiatus’ and government adherence to the principle that no significant appointments are made within three months of the date of the general election.
Summing up two of these paltry excuses for inaction, spokesperson for the Department of Internal Affairs, Mr Colin Feslier, stated:
“… the Changes to relevant legislation and the 2005 General Election caused considerable delays in the appointment process for these positions. The eight members agreed to remain in office until such time as the appointment process could be completed.”
The Society responds to each lame-duck excuse as follows:
(1) A private cosy arrangement with former Minister of Internal Affairs, the Hon George Hawkins, (a wink and a nudge) is of no relevance whatsoever to the legal status of board members whose terms of office have expired. Members of the board who are not re-appointed, replaced or dismissed by the Minister, continue in office “by virtue of the appointment for the term that has expired, until …” one of the three listed responses of the Minister are made (see s. 95 of the Act listed above). This allows a “continuation in office after term expires” in those rare situations where the expiry date falls within the three month period prior to an election or when the Minister has a genuine reason for being unable to fulfil his statutory duty. The Hawkins ‘deal’ provides the Hon Rick Barker with no “out-clause’. It is totally irrelevant to the legal status of the board members, post expiry.
(2) The fact that a government signals a possible change to a law, provides no basis for the suspension of the law. A Minister has a statutory duty to make appointments at the due time regardless of pending law changes and regardless of claimed forthcoming law changes. Two Court cases set precedents for this view [Muldoon v Fitzgerald (1975) and SPCS v Minister of Internal Affairs (2003)]. In the first, The Rt. Hon. Robert Muldoon tried to suspend the law by refusing to apply it, using the lame-duck excuse that because his government intended to change it, it could not be applied. The Crown lost the case defending this nonsensical view. In the second case, the misguided Minister George Hawkins claimed that his statutory duty to appoint a Deputy Chief Censor did not exist while his government colleagues and his department officials were wrestling with the idea of abolishing the position. There was no legal imperative contained in that part of the Act that states – “There shall be a deputy chief censor” – so the Minister’s advisors claimed. They were wrong. The SPCS sought a judicial review of manoeuvres by the government to circumvent the law and the Crown conceded that the Minister’s had to complete the appointment process. Mr Hawkins had chosen to not fill the vacancy of deputy chief censor for over two and a half years.
In the more recent debacle involving Minister Rick Barker, the government has proceeded to flout the law despite having already had one of its Ministers taken to the High Court over the same matter: for failing to exercise his statutory duty under the Act.
The terms of office of eight Board of Review members expired over 23 months ago. The Minister, who issued a press release just yesterday (8/05) announcing eight re-appointments, made a commitment last year, in answer to a written parliamentary question, that "the process [of filling the eight vacancies] should be completed by April 2006" (Q 11043). His press release of the 8 May 2006 stated that the eight board reappointments took effect on 20 April 2006.
Following serious concerns over the performance of this board, raised throughout from 2001-2005 with the Ministers by the Society and later reported in the media, he finally called for nominations for the eight "vacant" board positions in early December 2005, setting a deadline for receipt of nominations of 21 December 2005. The Society understands that a good number of highly qualified nominees were referred to the Minister before this deadline.
Board members whose term of office expired almost two years ago have all continued to meet regularly as a board, issue highly controversial classification decisions and have been paid fees and allowances since 31 May 2004 when their terms of office expired. The Society understands the Board convened a meeting just two weeks ago.
Society president Mike Petrus says: "The Society strongly opposes the recent reappointment of eight of the current Board members, whose classification decisions reflect an extremely liberal mindset. For example, this board unanimously approved the following films for adult viewing for the purpose of "entertainment" in cinemas and/or for home viewing and/or for study by students in tertiary film and media courses, following reviews: the brutal and sexually explicit rape films "Baise-Moi" and "Irreversible"; the sexually explicit film "9 Songs", the sexually degrading film "Anatomy of Hell" and video "Sinners No Doctor, Yes Doctor", and the gratuitous Japanese sex-violence film "Visitor Q", depicting necrophilia, sex acts involving human excrement, incest and corpse mutilation. The board issued these decisions well aware that it is parliament’s intentions, as embodied in section 3 of the Act, that such obscene content matter should be strictly off limits for the public (e.g. lengthy, gratuitous and explicit depictions of rape)."
The Society contends that Board members such as Peter Cartwright, husband of the Governor-General Dame Silvia Cartwright, have issued decisions that have at the very least "tended to promote and support criminal activities such as rape, the sexual violation of corpses (necrophilia), and other sexually degrading, demeaning and dehumanising acts – all directed against young women. It holds such members of the Board, along with the Chief Censor Bill Hastings and his deputy, Nicola McCully, to account for the ever-increasing volumes of sexually degrading garbage that is being cleared for release into mainstream cinema and the home-‘entertainment’ industry.
Petrus says: "The government should support those nominated to the Board who will uphold the law, oppose and stop the current unlawful regime that clears films for public cinemas that contain gratuitous depictions of objectionable content defined clearly in the Classification Act. The current Board has never sought to tighten the classification restrictions on any publication in the review process, following the release of the classification decision issued by the Office of Film and Literature Classification."