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Decision of the Film and Literature Board of Review

IN THE MATTER OF: The Films, Videos and
Publications Classification Act
1993

AND

IN THE MATTER OF: An application under s47 by the Family First New Zealand Inc for a review of the book “Into the River” by Ted Dawe

DECISION OF THE FILM AND LITERATURE BOARD OF REVIEW

The Board 1. The members of the Board which met for this review were: Dr Don Mathieson (President) Andrew Caisley (Deputy President) Michael Stephens Laurence Simmons Sandy Gill 2. This is a decision of the majority, from which Dr Mathieson dissents.

Submissions
3. The Board received written submissions from: a. The Office of Film and Literature Classification; b. Family First New Zealand Inc (2 submissions) ; c. Auckland Libraries, Auckland Council (2 submissions); d. Mr Ted Dawe; e. Mr Bernard Beckett; f. The Library and Information Association of New Zealand (LIANZA); g. The School Library Association of New Zealand Aotearoa (SLANZA); h. The New Zealand Society of Authors (PEN NZ Inc) (2 submissions); i. Penguin New Zealand Pty Limited and Random House New Zealand Limited; 1 j. The Booksellers Association of New Zealand; k. The New Zealand Book Council; l. Hastings District Libraries, Hastings District Council; m. Wellington City Libraries, Wellington City Council; and 4. In addition to the foregoing submissions, the Board also received copies of over 50 emails and submissions from various individuals variously supporting the book and/or supporting the decision not to restrict access to the book and/or opposing the interim restriction placed on the book.

5. The Board also received copies of over 480 emails from individuals that were attached to the Family First submission, which variously opposed the book and/or opposed the decision not to restrict access to the book and/or supported some restriction on the book either to those over a certain age or completely.

Appearances
6. Although parties were able to attend the hearing and present oral submissions, no submitters elected to do so.

Introduction
7. “Into The River” is a 279 page novel written by a New Zealand school teacher, Mr Ted Dawe.

8. The book tells the story of a young boy of Maori and Spanish ancestry, Te Arepa Santos. He is born and raised in a fictional East Coast village, but wins a scholarship to a prestigious boy’s boarding school in Auckland. The book centres around his experiences in his first two years at the school where he is academically successful, but as a result of a series of poor decisions ends up being expelled.

9. In the closing paragraphs of the book one of the teachers says to Te Arepa, as he is being driven away from the school for the last time: “I do hope you have learnt something from your experiences. Life’s not complicated; it’s just a series of choices between right and wrong.” During his time at the school Te Arepa is confronted with a number of these choices between right and wrong, and unfortunately the choices he makes ultimately lead to his expulsion.

10. The history of the book itself is now almost as fraught as the story of its central character.

11. The author notes in his submissions that he began writing books for young adults in 2003. His first novel “Thunder Road” was an immediate success. Feedback 2 received from readers then lead Mr Dawe to commence writing what he described a prequel, which tells the story of what happened to Thunder Road’s central character earlier in life. In his submission to Board which met for this review, Ted Dawe said that his intention was to write “a powerful story” and “the most complete account of a young man growing up in New Zealand”. This project proved challenging. It dragged on for years and the initial manuscript was almost 800 pages long. It was turned down by publishers, extensively reworked, edited and stripped down, and eventually turned into a self-published novel of 279 pages called “Into The River”.

12. Initially the book sold in relatively small numbers, but in 2013 the book won the New Zealand Post Margaret Mahy Book of the Year Award, as well as the Young Adult Fiction category of the New Zealand Post Children’s Book Awards.

Thereafter, the author reports, sales increased significantly.

13. However, as Family First New Zealand Inc pointed out in their submissions, both in 2013 and again in this review, the award was controversial and attracted both media criticism and also a certain amount of public pressure on the sponsor of the awards.

14. On 8 July 2013, following a complaint from a member of the public, the Secretary of Internal Affairs submitted the book for classification under section 13(1)(b) of the Films, Videos, and Publications Classification Act 1993 (“the Act”).

15. In a decision dated 11 September 2013, the Office of Film and Literature Classification (“the Classification Office”) classified the book “Unrestricted: Suitable for mature audiences 16 years of age and over”.

16. By letter dated 21 October 2013, Family First New Zealand Inc applied to have the book reviewed by the Film and Literature Board of Review (“the Board”). In that application they sought to have the book given an R18 rating.

17. In their submissions to the Board, the Classification Office sought to have the book classified as R16. In their submissions, the Classification Office said that it had been: “correct to classify Into The River as objectionable unless the availability of the publication is restricted to persons who have attained the age of 16 years, and to require the descriptive note “Contains violence, offensive language and sex scenes””.

18. The Board did not have the original decision of the Classification Office before it at the review meeting, since for reasons noted below decisions of the Classification Office are not directly relevant to reviews by the Board.

Accordingly, the Board was not aware that the actual decision which the Classification Office had made differed from the reference to it in its submissions.

19. Having received and considered written submissions from: 3 a. Family First, seeking an R18 classification, and b. the Classification Office, seeking an R16 classification, and c. the author who advised that he intended the book for the older end of the young adult market, being those 15 years or older, the Board determined the book should have an R14 rating and carry the descriptive note it had when originally published, namely “Parental advisory explicit content”.

However the decision was not unanimous and a dissenting opinion was also issued indicating that an R18 rating would be appropriate.

20. The Act provides a process whereby content can be submitted for reclassification.

Normally this can only occur after three years, although there is provision for this to occur within three years if the Chief Censor is satisfied that “special circumstances justifying reconsideration exist” 21. In this case, on 25 May 2015 Auckland Libraries (a department of Auckland Council), made an application for reconsideration inside three years. The Classification Office accepted that special circumstances existed, and therefore accepted the book for reclassification.

22. Having accepted the book for reclassification, by decision 14 August 2015, the Classification Office determined the publication should be unrestricted.

23. As they are entitled to do, Family First New Zealand Inc then applied to have the book reviewed by this Board. They also applied for an interim restriction order, as they are entitled to do under the Act.

24. By way of decision dated 3 September 2015 the President of the Board, exercising powers provided under section 49 of the Act, issued an interim restriction order banning sale or distribution of the book pending completion of the review by the Board.

25. Since then, and in connection with this hearing, the Board has received over 550 submissions and emails expressing views about the book. Those views cover the entire range of options including suggestions: a. that there should be no restrictions on any books ever; and b. that there should be no restriction on this book; and c. that this book should be rated R14 or R16 or R18; and d. that it should be banned completely.

Those submissions have come from both within and beyond New Zealand, including places as far afield as, Sweden, the US, the UK and even Mongolia.

The issues surrounding the book, and in particular the interim restriction order, have also received significant media coverage both domestically and internationally.

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The Current Review - Context
26. At a time when one of the highest selling young adult series is the “The Hunger Games”, which has as its central premise a competition where children are required to murder each other, and where the “50 Shades of Grey” series is freely available in bookshops on an unrestricted basis, it is perhaps surprising that it is “Into The River” that has occasioned so much attention and so little consensus.

However, the Board has no control over which films, videos or publications are referred to it for review. It is simply required to review those matters which are referred.

27. Furthermore, when conducting its review it must apply the provisions of the Films, Videos and Classifications Act 1993, and do so in a manner consistent with the New Zealand Bill of Rights Act 1990.

28. Before addressing the matters directly relevant to the review, it is worth briefly commenting on some matters that are not at issue in this, or indeed any, review.

29. The first point to note is that the Board has no power to review the decision by the Classification Office to accept the application for reconsideration inside the normal three year period. Section 42 of the Act allows applications for reconsideration to be made and under section 42(3) it is for the Chief Censor to determine whether there are, or are not, special circumstances justifying reconsideration. There is no statutory provision allowing such decisions to be reviewed by the Board and accordingly this majority opinion does not express any opinion regarding that decision.

30. The second point is that under section 49(1) of the Act any decision about imposing an interim restriction order rests solely with the President of the Board.

There is no statutory provision allowing such decisions to be reviewed by the Board as a whole, and accordingly we do not express any opinion about that decision.

31. The third point is that under section 52 of the Act, reviews undertaken by the Board are conducted by way of “re-examination of the publication by the Board without regard to the decision of the Classification Office”. Accordingly, although the Board has read the decision of the Classification Office, we are not reviewing that decision per se, but instead examining the book, in the context of the provisions of the Act. Accordingly, we do not refer further to the decision by the Classification Office in this determination.

32. Finally, it is worth noting that a number of the submissions and emails provided in connection with this review expressed views to the effect either that banning/classifying books was never appropriate, and/or that banning/classifying books was not appropriate or practical in an internet age. Those issues will fall to be debated whenever the legislation is next reviewed. For the time being, NZ does have a regime which provides for the classification of films, books and other material and this review takes place within the context of that existing legislation, 5 regardless of the views that Board members may otherwise have about those more general issues.

The Legislation
33. The Board is required to determine whether “Into The River is “objectionable” – as that term is defined in the Act. The personal views of Board members about whether it is objectionable or not are not directly relevant, since it is the definition in the Act that must be applied.

34. Pursuant to section 3(1) of the Act, a publication is “objectionable” if it: “describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good”.

35. The Act prescribes that this test for “objectionable” may be met in two ways: a. A publication must be deemed objectionable if the test set out in section 3(2) is met; or b. Even if a publication is not automatically deemed objectionable under section 3(2), it may nevertheless be objectionable if the test set out in section 3(1) is met, taking into account the matters required to be considered under section 3(3) and section 3(4).

36. Additionally, under section 23 of the Act, the Classification Office (and on a review, the Board) may find a publication objectionable except to those over a specified age. The publication may then be age restricted and made available only to those over a particular age.

37. Under section 3A, this can apply if the publication contains: “highly offensive language to such an extent that the availability of the publication would be likely, if not restricted to persons who have obtained a specified age, to cause serious harm to persons under that age”.

38. Alternatively it can apply, under section 3B, if the publication contains: “material specified in sub-section (3) to such an extent or degree that the availability of the publication would, if not restricted to persons who have attained a specified age, be likely to be injurious to the public good for any or all of the reasons specified in sub-section (4)”.

39. Finally, in applying the Act the Board must act consistently with the New Zealand Bill of Rights Act 1990. Section 14 of the New Zealand Bill of Rights Act 1990 states that everyone has “the right to freedom of expression, including the 6 freedom to seek, receive, and impart information and opinions of any kind in any form”.

40. Under section 5 of the Act, this freedom is subject “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Both in its 2013 decision, and again in this decision, the Board has taken that Act into account.

41. In practical terms, the legislative framework means that the Board has assessed first whether the publication falls within the test in section 3(2). It has then assessed whether the publication is otherwise “objectionable” under section 3(1), taking into account the matters set out in section 3(3) and section 3(4). Finally, the Board has assessed whether the book should be age restricted, under either section 3A or section 3B.

42. In making these assessments it has been mindful of section 5 of the New Zealand Bill of Rights Act 1990, which specifies that any restriction on the right of freedom of expression (being the right to seek, receive and impart information and opinions of any kind) must be reasonable and demonstrably justifiable in a free and democratic society.

Content of the Book
43. In terms of whether the book is “objectionable”, as that term is defined in section 3 of the Act, the key matters to be considered are as follows: a. Offensive language – the submission from Family First New Zealand in 2013 noted that the word “fuck” is said seventeen times in the book, the word “shit” sixteen times, the word “cock” ten times and the word “cunt” nine times. There are a number of other offensive words used as well, including “arse”, “pissing”, “bitchin’” etc Others have noted that the book contains other references that may be regarded as offensive such as “nig” and “nigger”.

b. Two sex scenes – there are two sex scenes described in detail in the book, both involving Te Arepa. He is either 13 or 14 at the time of the first scene, and probably 14 at the time of the second scene. One scene involves a young single mother, and the other scene involves a school girl, who may or may not be over the age of 16. ; c. Drug taking – Te Arepa smokes marijuana; and at one point he is in an environment where it appears others are using ecstasy; d. Other criminal activity – there are a number of references to criminal activity in the book. For example, at one point Te Arepa is involved in driving a car significantly in excess of the speed limit and at another point he receives a jacket which is almost certainly stolen property. A friend of 7 his is involved in stealing money and phone cards and at one stage a young boy is beaten with a hockey stick by a senior student in circumstances that could presumably result in assault charges.

e. Teacher behaviour – one of the characters in the book is a music teacher at the school. Although it is mostly inferred, rather than directly described, the reader is left in no doubt that the teacher engages in a number of entirely inappropriate, unacceptable and at times unlawful behaviours. He is ultimately arrested for some of what he has done. He provides alcohol and drugs to some of the students, he has an inappropriately close (and probably sexual) relationship with one or more of the students, he has a practice of photographing young boys with or no clothes on and so on.

f. Violence, bullying and racism – the book features a number of physically and psychologically abusive behaviours surrounding bullying and racism.

In one of the scenes, in particular, a junior student is held down in his bed while a senior student repeatedly hits him with a hockey stick.

44. In light of the matters set out in paragraph 43 above, there can be no doubt that the book describes, depicts and otherwise deals with matters such as sex, crime, cruelty and violence. It therefore makes it through the subject matter gateway prescribed in section 3 of the Act.

45. The book will therefore be objectionable if “the availability of the publication is likely to be injurious to the public good” (see section 3(1) of the Act).

46. As noted earlier, that requires the Board to consider the section 3(2) test, then section 3(1) in light of the matters referred to in section 3(3) and section 3(4), and finally the age restriction provisions in section 3A and section 3B.

The Section 3(2) Test
47. Section 3(2) deems a publication to be objectionable if the publication promotes or supports or tends to promote or support: “a. The exploitation of children, or young persons or both for sexual purposes; or b. The use of violence or coercion to compel any person to participate, or submit to, sexual conduct; or c. Sexual conduct with or upon the body of a dead person; or d. The use of urine or excrement in association with degrading or dehumanising conduct or sexual conduct; or e. Bestiality; or f. Acts of torture or the infliction of extreme violence or extreme cruelty.”

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48. There is no subject matter in the book which causes section 3(2) (b) – (e) to be relevant.

49. There is some subject matter in the book dealing with violence, both psychological and physical. However, the Board does not consider the violence crosses the threshold of being “extreme violence or extreme cruelty”. Accordingly the threshold set in section 3(2)(f) is not crossed.

50. Finally, although there are two sex scenes which involve at least one young person (Te Arepa), the scenes do not involve the exploitation either of, or by, Te Arepa. Furthermore, neither of the scenes otherwise promote or support, or tend to promote or support the exploitation of children or young persons.

51. There are also veiled hints that the music teacher may be photographing young boys either naked or partially naked, and collecting the photographs for some unspecified purpose. However, the subject is only alluded to very briefly.

52. As the submissions of the Office of Film and Literature Classification describe it “the music teacher seems to be not only a drug dealer but also a producer and dealer of paedophilic/child exploitation images. Steph is the character that makes these links – his relationship with the teacher is dubious, probably sexual, but this is not dwelt upon. Steph is the character who is worldly, sophisticated, experienced, casual and unaffected. As a character, his role is to open Te Arepa’s eyes to the temptations and follies of the contemporary urban environment. The teacher suggests Te Arepa ‘sit’ for him. Steph causally draws attention to the teacher’s portfolio: “yes I know… most of them are boys and most of them have no clothes on.” The two boys have a silent understanding of the abhorrence of this. There is no doubt that they know what they are seeing is wrong”.

53. We accept that this is a fair description of the way this matter is dealt with in the book. We also note that the scene occupies less than a page in the context of a 279 page novel. We also note that, ultimately, the music teacher is arrested. He figures in the book as part of the poor decisions that Te Arepa makes and as part of his downfall.

54. In these circumstances, the Board does not consider the allusions to the exploitation of young persons contained within the book promote or support or tend to promote or support such activity. On the contrary, we consider they are there as a genuine depiction of some of the dangers that young teenagers may have to face, and to warn of the dangers and wrongfulness of such behaviours.

55. Accordingly, the Board determines that the publication does not fall within the test for objectionability contained in section 3(2) of the Act.

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Sections 3(3) and 3(4).

56. Having determined that the publication is not automatically deemed objectionable under section 3(2), it is necessary to determine whether the publication is otherwise objectionable under section 3(1). In undertaking this assessment the Board must be particularly guided by the matters set out in section 3(3) and section 3(4).

57. The Board is also mindful of the guidance provided by the Court of Appeal in Living World Distributors Limited v Human Rights Action Group Inc (Wellington) [2000] 3 NZLR 570, particularly regarding the need for there to be a likelihood of injury to the public good, and for that risk to be linked to the depiction of sex, crime, or other subject matter.

58. The Board accepts that the book does describe, depict or otherwise deal with a number of the matters identified in section 3(3)(a) of the Act.

59. In particular, the book can be said to describe or depict: a. Serious physical harm, as provided for in section 3(3)(a)(i) – and in particular a scene that involves the infliction of serious physical harm where one of the junior boys in the school is repeatedly hit by one of the senior boys in the school using a hockey stick. The assault leaves the victim with severe bruising to much of his body; b. Sexual or physical conduct that is potentially degrading or demeaning, as provided for in section 3(3)(a)(iii) – and in particular a scene involving a teacher who apparently takes photographs of naked young boys, it deals with conduct of a sexual nature that is potentially degrading or demeaning.

Some of the physical bullying which occurs through the book can also be said to be physical conduct of a demeaning nature.

c. Sexual conduct by young persons, as provided for in section 3(3)(a)(iv) – and in particular the two sex scenes involving Te Arepa.

60. The Board also considers that section 3(c) is engaged because some of the behaviours in the book, particularly by senior students towards junior students are demeaning of those junior students. There are also displays of racism directed at Te Arepa which can be described as demeaning of him. Those displays of racism might also engage section 3(3)(e).

61. Accordingly, the Board is satisfied that the threshold in section 3(3) is crossed and an evaluative exercise must be undertaken, concerning the extent and degree to which those matters are dealt with, taking into account the factors set out in section 3(4).

62. With respect to those factors listed in section 3(4) of the Act, the Board considers: 10 a. The dominant effect of the publication as a whole.

Many of the submissions and emails received by the Board focussed on particular extracts from the book. Whilst the Board took those extracts into careful consideration, and it was appropriate for submitters to have highlighted their concerns in this way, the Act requires the Board to assess the dominant effect of the publication as a whole. This requires the Board to take a view of the book as a whole, and not merely to focus on particular extracts in isolation. This is not to say the offending extracts are ignored, but rather that they are seen in the context of the 279 page novel read as a whole.

Both in its earlier review process in 2013, and during this review process, the Board spent considerable time assessing the dominant effect of the publication as a whole. The majority and the minority take different views on this issue, and this difference is a key cause for the divergence in outcome.

For reasons set out in the minority opinion, it is possible to take the view that this book normalises some or all of the unlawful and/or unacceptable behaviours which the book describes.

The majority however do not take that view. Instead, we read the book as a morality tale warning against the dangers of the various choices which Te Arepa makes and as a study of the challenges that can arise from the alienation he experiences on leaving the community of his childhood and being dropped in the very different cultural environment of an Auckland boys boarding school. The book deals with the challenges which young people face, and the decisions they must make, growing up in a contemporary urban environment.

There is no doubt that issues such as bullying, underage drinking, drug taking, and underage sex are very real, albeit undesirable, features of contemporary urban life. These features are neither new, nor exclusive to New Zealand. Nevertheless, they are challenges which many of our school children will face and about which they will be required to make choices.

The book focusses on the reality of those choices and the consequences of poor decisions, both individually and cumulatively. The book paints a series of superficially glamorous or exciting opportunities for Te Arepa, but also shows the consequences of making poor decisions and highlights the way in which a series of poor decisions can lead down a path to destruction.

To take the second sex scene for example, Te Arepa is at a school drama camp rehearsing for the upcoming school production. During an unauthorised ‘midnight swim’ Te Arepa is swimming with a fellow cast 11 member with whom he had been beginning to develop a friendship. In the course of a paragraph, Te Arepa takes the relationship from one of developing friendship to a sexual encounter. When the girl does not resist he has sex with her. The sex is described in a couple of sentences and fleetingly Te Arepa is excited. Literally within a sentence however the consequences of his poor decision are immediately apparent to Te Arepa.

“There was a look of panic on [the girl’s] face as she turned towards the shore… He knew then that he had been wrong… His rush to ‘accomplish something’ had somehow spoiled the fun he was having. The jump from kid games to adult activity had taken that away. Suddenly he felt regret. It had gone too far, too soon.

Something had been broken.”

Furthermore, the growing friendship which had been developing, and which Te Arepa destroyed through his reckless behaviour, is not repaired in the balance of the book. The issue remains a cause of regret for Te Arepa throughout. The girl will have to deal with the result of any unsafe sexual contact also, and although the book does not directly address this, most young women would think about this aspect of the encounter.

The book does not sensationalise, glamorise or otherwise favourably portray the sex, violence, cruelty, demeaning behaviour and other undesirable conduct which it describes.

The main characters in the book all experience negative outcomes from their involvement in these behaviours, both by way of being arrested or expelled, and also by being left isolated, unsatisfied, empty and otherwise emotionally and psychologically unhappy.

Because of this, the majority of the Board do not consider the book normalises or promotes the behaviours it describes. Instead, we consider the dominant effect of the publication will be to promote thought, discussion and debate amongst readers about real choices and issues that they and their colleagues are likely to have to confront. Where other forms of media that young adults are exposed to, and particularly contemporary popular music and video games, may promote or glamorise or sensationalise sex, crime and violence, this book realistically portrays the negative consequences that can follow. The majority of the Board therefore considers the dominant effect of the publication is to provide a useful ‘reality check’ for young people.

b. The Impact of the Medium in Which the Publication is Presented The publication is a 279 page novel presented with a dark and moody cover that, except for the “parental advisory explicit content” warning, does not in any way reference the sex scenes, crime, drugs or other undesirable behaviours that arise in the book. There is no appreciable risk 12 that any person will be “accidentally” exposed to the undesirable behaviours or language, since exposure requires sufficient dedication to read the entire novel. Furthermore, because exposure basically requires the reading of the whole novel, the undesirable behaviour will be seen in context, and with the negative connotations which the book associates to the behaviours.

c. The character of the publication, including any merit, value or importance that the publication has in relation to literary, artistic, social, cultural, educational, scientific, or other matters.

The book is intended to be, and has been recognised as, a serious work of young adult literature. It raises important social issues about bullying, underage sex, drug taking, underage drinking and other undesirable behaviours. It is intended to be, and is, challenging and thought provoking to a young readership.

d. The Person, or Class of Persons, or Age Groups of the Persons to Whom the Publication is Intended or is Likely to be Made Available In his submission to the 2013 review by the Board, the author said that: “I see this is a book for the older end of the young adult readership. Being over 250 pages long there is little chance of it falling into the hands of the unwary, however if teenagers under the age of 15 want to read it, then I believe that they should be allowed to”.

The Board accepts that the publication is intended for teenagers.

There is little or no likelihood of primary school aged children reading it, because of its length, the absence of any pictures and the dark and somewhat foreboding cover. It is possible that some intermediate aged school children may read the book, but mainly readers will be secondary school age children – some of whom, as an unfortunate reality, will be exposed to the sorts of issues and choices which Te Arepa must face.

e. The Purpose for Which the Publication is Intended to be Used In his submission to the 2013 review, the author notes that: “The driving force behind [young adult] fiction is the concept that young people by reading about scenarios involving choice, sex, drugs, thieving, bullying etc have the opportunity to think through these in the relatively ‘safe’ environment of a novel, so when the encounter the real thing, later in life they will do so with a measure of for-thought.”

The Board accepts that the book is likely to serve the purpose of raising for thought and debate important issues about choices that young people 13 face. Because the principal characters in the book make poor choices, which have unrelentingly bad consequences, the book is somewhat bleak to read – but it is nevertheless sobering, engaging and thought provoking.

As noted earlier, it provides a useful and important ‘reality check’ that is sadly lacking in other contemporary media where sex, crime and violence are glamorised and glorified.

f. Any Other Relevant Circumstances Relating to the Intended or Likely Use of the Publication As noted elsewhere in this decision, the Board considers that this book is both intended to, and likely to, promote discussion and debate about important issues concerning sex, (including important issues such as consent, the use of condoms and the emotional consequences of casual sex) and violence (including the damaging effects of bullying behaviour) and racism. These continue to be very real issues in New Zealand, and raising the subject for debate in a way that is intended to, and likely to, engage the attention of young males in particular, has the potential to generate positive outcomes.

Summary
63. Overall, when considering the section 3(1) test in light of section 3(3) and 3(4), the Board accepts that this book does describe, depict or otherwise deal with matters such as sex, crime, cruelty and violence.

64. In its submissions, appropriately, Family First requested that each member of the Board carefully read various identified sections of the book in conducting this review. The identified sections included those in which Te Arepa has sex and where there is extensive use of bad language. Many of the other emails expressing concern about the book also focussed on these passages.

65. The Board has carefully read, considered and discussed all those aspects of the book about which submitters have expressed their deep, and no doubt genuinely held concerns. We respect and understand those concerns and readily accept that there are aspects of this book that many will find offensive and many will regard as entirely inappropriate for children.

66. However, as Mr McClelland QC correctly pointed out in his submissions to us on behalf of the publisher, the test for “objectionable” in section 3(1) requires us to be satisfied not just that the book deals with matters such as sex and violence, but also that it does so in a manner that the availability of the publication is likely to be injurious to the public good.

67. None of the submissions to the Board provided any direct evidence of any harm that had been occasioned when the book was available on an unrestricted basis, prior to the Board’s 2013 classification decision. Nor did any of the submissions 14 point to any specific likelihood of injury to the public good that might follow if the book were available on an unrestricted basis.

68. Furthermore, the Board is mindful that there are a range of other books, and also other TV, gaming and internet entertainment options, available to readers and consumers on an unrestricted basis. In this environment, it is not clear that this book being available on an unrestricted basis, would be likely to have any material or appreciable negative impact on the public good.

69. The majority of the Board considers the book deals with those matters in a way that is essential to the story, rather than being gratuitous; and in a way that is likely to educate and inform the intended readers about the potentially negative consequences that can follow from involvement in casual sex, underage drinking, drug taking, crime, violence and bullying. The Board considers that the book serves a useful social purpose in raising these issues for thought and debate and creating a context which may help young adults think more deeply about choices they may be called upon to make and both the immediate and long term consequences of those choices.

70. Accordingly, having taken into account the matters required to be considered, the majority of the Board does not consider the book is “objectionable” as defined in section 3(1) of the Act.

Section 3A
71. The Board is also required to consider whether the book should be age restricted under either section 3A or section 3B of the Act.

72. Section 3A allows for a book to be age-restricted if it contains “highly offensive language to such an extent or degree that the availability of the publication would be likely…to cause serious harm to persons under that age”.

73. In its submission to the Board on the previous review, Family First provided a comprehensive appendix noting the number of times various offensive words appear during the book. They listed approximately 55 examples. Some of these examples are relatively benign. For example, at the beginning of the book two young Maori boys crawl through some mud and then take their clothes off and wash them, and themselves, in a river. While they are drying off in the sun afterwards one notes to the other that it is a “good chance to tan our white arses”.

On other occasions however there is language that is highly offensive, with characters being referred to as “cunts” and “wankers”. There is also other offensive language in the book of a racist nature and in particular “niggers” and “Nig”.

74. However, the language occurs in the context of character portrayals that are realistic and reflects the fact that such language is, albeit regrettably, used widely including by an appreciable number of teenagers.

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75. In terms of section 3A(2) the Board may only age restrict a publication under that section if it contains highly offensive language “to such an extent or degree that the availability of the publication would be likely, if not restricted to persons who have attained a specific age, to cause serious harm to persons under that age”.

This is a high threshold, and given the standards of language in contemporary society, and given the nature of the publication (a substantial novel unlikely to be read by primary school aged children), we do not consider it is likely that the book will cause any serious harm if not age restricted.

Section 3B
76. The Board must also consider section 3B of the Act which says that a publication may be age restricted if it deals with certain subjects listed in section 3B(3) to such an extent that its availability to persons under a specified age would be likely to be injurious to the public good for any of the reasons specified in section 3B(4) 77. The section 3B(3) subjects include harm to a person’s body; conduct which if imitated would pose a real risk of harm; and physical conduct of a degrading or demeaning nature. The section 3B(4) reasons for injury to the public good are that “the general levels of emotional and intellectual development and maturity of persons under the specified age mean that the availability of the publication to those persons would be likely to: a) cause them to be greatly disturbed or shocked; or b) increase significantly the risk of them killing, or causing serious harm… c) encourage them to treat or regard themselves, or others…as degraded or dehumanised or demeaned”.

78. As noted earlier, this publication includes extensive references to bullying, including the severe beating with a hockey stick by a senior school pupil of a junior school pupil. This falls within section 3B(3).

79. It also contains references to drug use, dangerous driving and various other activities which would fall within section 3B(3), being conduct which, if imitated, would pose a real risk of serious harm.

80. It also contains references to racist behaviours and attitudes and other behaviours that are undesirable and demeaning or degrading of the young characters in the book, although since much of this behaviour is of a psychological, rather than a physical nature, it falls outside the ambit of matters which the statute permits the Board to base a decision on, and accordingly we have not considered psychologically harmful conduct further.

81. Many of the scenes are described in a powerful way, which is commendable from a literary point of view and helps underpin the moral lessons which the book delivers. The power of the description also means that, in the Board’s view, there 16 is a very real likelihood that if read by children under the age of 14, it could cause them to be greatly disturbed or shocked.

82. However, and again as Mr McClelland QC correctly pointed out in his submissions, it is not sufficient for the Board to consider merely that some young readers may be disturbed or shocked, it must also be satisfied that this is likely to cause some injury to the public good.

83. Furthermore, and as noted earlier in this decision, before imposing a limit on the right to freedom of expression, the Board must be satisfied that such a limit is demonstrably justified in a free and democratic society.

84. The Board’s earlier decision on this book was that a restriction was demonstrably justified, based on the somewhat limited information then before us. In particular, that information included submissions from Family First seeking an R18 restriction, and from the Classification Office seeking an R16 restriction. We regarded it as justified to restrict primary and intermediate school age children from access to the book, but did not consider that any restriction should exist beyond that. To give effect to that broad objective, we imposed an R14 rating.

85. In this review process, we have had the benefit of considering significantly more information, and a significantly wider range of views. A number of the submissions have identified a range of other books and entertainment options that intermediate aged children have access to, which calls into question the likelihood of a single book like ‘Into the River’ genuinely impacting negatively on the public good. Furthermore, it has become clear that the practical effect of the R14 restriction has been to significantly curtail access to the book. The Auckland Libraries submissions explained that to manage the R14 restriction they withdrew all 53 copies of the book from public display. Whereas the book was previously being withdrawn almost 6 times a week on average, borrowing immediately fell to less than once a week. They pointed to this as a demonstration of the unreasonable impact the R14 restriction was having on access to the book by those over 14 as well. The Board did not intend its earlier decision to restrict the access which those 14 years or older had to the book. In weighing the extent to which any restriction is demonstrably justified, we have taken this new and additional information into account, and weighed it carefully against any identifiable injury to the public good that is likely to result if no age restriction is imposed.

86. In considering whether there is a likelihood of injury to the public good the Board notes that none of the submissions it received referred to, or identified any likelihood of injury to the public good arising from the potentially disturbing descriptions of bullying. The Board also notes that, because these descriptions form only a very small part of a 279 page book, it is highly unlikely that primary school aged children will read the book and therefore be exposed to the descriptions. The Board also noted that any reader who starts to find the scenes disturbing has the ability to put the book down anyway. Finally, the Board noted the range of other books, TV, gaming and internet based entertainment options which children and young adults will have exposure to. All of these factors tend to 17 suggest there is no reasonable likelihood of any identifiable injury to the public good arising from this book specifically.

87. On the other hand, there is a significant possibility for the book to have a positive impact on the public good if either it encourages young adults to read, as a number of the submitters suggested it might; or if it raises for thought and debate the very real problems surrounding bullying. Accordingly, although we consider there is a possibility that younger readers will be shocked and disturbed by some of the material which falls within section 3(b)(3) we do not consider there is a likelihood of injury to the public good if the publication is available on an unrestricted basis.

88. With regards to the other reasons referred to in section 3B(4)(b) and (c) we do not regard there to be any likelihood that this book will significantly increase the risk of readers causing harm to themselves or others, or of treating or regarding themselves or others as being degraded or dehumanised or demeaned. On the contrary, the consequences of poor decision-making and involvement in high risk and/or unlawful activity are clearly and repeatedly spelt out in the book with the clear intention and effect of discouraging such behaviour.

89. Overall, we take the view that those at primary school are highly unlikely to read the book anyway. The length of the book, the foreboding cover, the absence of pictures and the structure of the writing all contribute to the fact that very few, if any, primary school aged children will engage with the book. We also take the view, as we did previously, that there is no basis in the Act for restricting access to the book to secondary school aged children. Whilst many parents may choose not to allow their children to read such material, there are no grounds to restrict the book from teenage readers.

90. The balancing act therefore comes down to whether there will be a real likelihood of injury to the public good if some intermediate aged children read the book, and whether that risk outweighs the restrictions on access that will practically arise for older people if an R14 rating (or any other age restriction) is retained.

91. Although we previously formed the view that an age restriction was justified, in light of the better information available at this review particularly regarding the consequences of a restriction even for those over the restricted age, and in light of the other books and entertainment options that intermediate aged children and younger are exposed to anyway, we do not now consider an age restriction is justifiable.

Lost Girls (R18)
92. In its submission, Family First specifically requested that the Board consider the book “Lost Girls” which was referred for classification in 2014 and given an R18 rating by the classification office. The book was not subject to a review, so did not come to the Board for direct consideration.

18
93. It appears from submissions provided by Auckland Council that “Lost Girls” is a graphic novel, described by its creators as a work of pornography and containing explicit sexual material with immediate visual impact. We understand that it describes and depicts sexual adventure stories of three fictional female characters, being Alice (from Alice's Adventures In Wonderland), Wendy (from Peter Pan) and Dorothy (from The Wizard of Oz). It has stories that include rape, incest, prostitution, voyeurism, multiple partner sex and opium use in which the girls themselves take part. It is very sexually explicit and graphic. It was written as an adult graphic novel and not as a child nor young adult novel. It seems likely therefore that, when assessing the various factors which the statute requires us to take into account, different considerations would arise were the Board requested to review that publication.

94. In the case of “Into the River” the two sex scenes form only a very small part of the overall novel. Their inclusion is not gratuitous or for purposes of titillation.

Rather, they are included precisely to warn against the dangers of casual and underage sex.

95. Overall, it would appear that there are very significant differences between the two publications and we do not consider the Classification Office’s decision regarding “Lost Girls” particularly assists the Board in applying the statutory criteria to “Into the River”.

Summary
96. “Into the River” contains scenes, and deals with themes, that many people find offensive and upsetting. Those themes include bullying, underage casual and unsafe sex, drug taking and other matters. The book also includes the use of offensive language by a number of the characters. The Board received over 500 email submissions expressly various concerns about these matters and as a result the Board has no doubt that there are genuine and deeply held views in the community that books dealing with such subject matters are unsuitable for children.

97. However, the book is only “objectionable” under section 3 of the Act if it promotes or supports, or tends to promote or support certain activities prescribed in section 3(2), or if it otherwise deals with certain activities in a manner which is likely to be injurious to the public good.

98. Having read the book, and considered all of the submissions received the Board does not consider “Into the River” can be said to have a tendency to promote or support the activities it depicts. On the contrary, the Board considers that it usefully and extensively describes and illustrates the short and longer term negative consequences that such behaviours can have.

99. Significantly, by the end of the book, the music teacher has been arrested and the two main characters have been expelled or left school in circumstances where they would otherwise have been expelled. The two best friends have been forced 19 apart by the expulsion and have no realistic prospect of seeing each other again.

Promising academic careers have been ruined, friendships have been broken and lives are in tatters. Most importantly of all, the main character is left isolated and alone. Although Te Arepa may be unable to admit regret, the reader cannot help but draw the conclusion that he has made a series of wrong decisions and has wasted the opportunities that were available to him.

100. Accordingly, although the book describes a number of unacceptable, offensive and objectionable behaviours, it does not in any way promote them. On the contrary, the book clearly sets out to discourage and discredit such behaviours.

101. The moral lessons of the book are clear and explicit. As he leaves the school for the last time, Te Arepa is warned not to repeat his mistakes because “from here Devon, there won’t be safety nets to catch you if you fall”. He is also expressly told “I hope you have learned something from your experiences. Life’s not complicated; it’s just a series of choices between right and wrong” 102. Given the moral lesson of the work, the Board does not consider the book can be said to promote or support the objectionable behaviours and therefore cannot be said to be “objectionable” under section 3(2) of the Act.

103. The Board also considers the book is not generally “objectionable” under section 3(1) of the Act, since the Board does not consider the book can be said to be “injurious to the public good”. On the contrary, the Board considers the book is likely to raise for debate and discussion a number of important issues and problems that many young teenagers will have to confront as they grow up.

104. The Board has also considered whether there are grounds for age-restricting the book because of the offensive language it contains. However, whilst there is offensive language in the book, the Act allows for age restriction only where that language is likely to cause serious harm to persons under a particular age. We do not consider the language in book is likely to cause serious harm.

105. The Board has also considered whether there are grounds for age-restricting the book because of the bullying and other harmful conduct described in the book.

The Act allows for this where there is a likelihood of injury to the public good.

However, any such restriction must also be demonstrably justifiable. Given the impact which an age restriction has unjustifiably had on those aged 14 and above, and given the very low likelihood of any clearly identifiable negative impact on the public good which can be said to be likely to arise if access to the book is allowed to those readers who are able and willing to engage with the book at an age of 13 or below, the Board does not consider an age restriction is justified.

106. Finally, the Board notes that the cover of the book contains a warning that there is explicit material in the book. The Board considers this appropriate and useful.

There is no doubt that there will be many parents who would prefer that their children were not exposed to such material and the warning is a helpful way of assisting them. The Act does not give the Board the power to require a warning on the cover of a publication that is not otherwise age-restricted, but the Board notes the responsible approach which the author took when he self published the book and hopes that the same approach will continue.

107. For the forgoing reasons the board classifies the book as unrestricted.

108. The Board hereby directs the Office of Film and Literature Classification in terms of Section (5)(e) of the Act to enter the Board's decision in the register.

ENDS

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