Television and the Classification Act
Article by Chief Censor, Bill Hastings
18.07.2006
The Films, Videos, and Publications Classification Act 1993 (the Act) creates a number of different, and quite separate, regimes, for different purposes.
The offences regime
For example, the Act creates an offences regime. These offences make a person liable for making, supplying, distributing, exhibiting and possessing both restricted (1) and objectionable (2) publications. A restricted publication is defined as one which has been classified under s23(2)(c). An objectionable publication however does not need to be classified for it to be objectionable. The offence provisions for objectionable publications apply to publications that are objectionable, and to publications that have been classified as objectionable.
The classification regime
The Act also creates a classification regime. Within this regime, there is one procedure for the classification of moving images. This applies to anyone who wants to offer moving images for supply to the public (3). It requires that all moving images go through the classification and labelling process before they are offered to the public. There is another procedure for the classification of all publications. This applies to everyone else, including enforcement agencies and members of the public. This procedure allows for the submission of publications after they have been released to the public (4).
Although there is some overlap, the two regimes are quite separate.
The Classification Office and the Chief Censor
The Act also refers to several government entities. The Office of Film and Literature Classification is responsible, obviously, for classification. The Labelling Body is responsible for the submission of moving images intended for supply to the public under the classification regime. The Film and Literature Board of Review is responsible for reviewing publications that have been classified by the Classification Office.
The Chief Censor is responsible for the administration of the Classification Office. It is not the Chief Censor, but the Classification Office, which classifies publications. Independently of this, the Chief Censor alone is given a number of other powers, most of them gate-keeping functions relating to what publications may be submitted for classification and under what conditions. The Broadcasting Act 1989 (5) also requires that the Chief Censor’s consent is obtained before a film that has been classified as objectionable, or the uncut version of a cut film, may be broadcast.
The central issue: Is a film classified as restricted to film festivals available for broadcast?
In the course of sending the film Baise-Moi back to the Board of Review, Justice Hammond directed the Board to consider the possible availability of Baise-Moi in other mediums. There was considerable discussion in Court about the possibility of the film being shown on television, and whether television was one of the other mediums the Board had to consider. Reflecting this discussion, Justice Hammond made the following comment:
[79] Mr McKenzie has to be correct therefore in his submission that "had the film Baise-Moi been classified as objectionable, it could not have been broadcast on television in New Zealand except with the consent of the Chief Censor". And, if conditions like those imposed by the OFLC [R18 and availability further restricted to exhibition at film festivals and tertiary institutions] had been kept in place the film could not lawfully come into the possession of a broadcaster and it could not be screened on television.
The first sentence is undoubtedly correct. Films classified as objectionable cannot be broadcast without the Chief Censor’s consent. The second sentence however, if correct, seems to blend the classification regime with the offence regime to give the Classification Office jurisdiction over television broadcasting neither the Office nor the Broadcasting Standards Authority thought it had.
The classification regime and broadcasters
Why could a restricted film not lawfully come into the possession of a broadcaster and not be screened on television? Baise-Moi was not classified as an objectionable film. Under the definition of "restricted film" in the Films, Videos, and Publications Classification Act 1993, Baise-Moi is clearly a restricted film. A broadcaster therefore does not need the Chief Censor’s permission under the Broadcasting Act to broadcast it. Perhaps Justice Hammond reasoned that since a broadcaster is neither a film festival nor a tertiary institution, it could not legally possess the film and therefore could not broadcast it. Why then does the Broadcasting Act specifically anticipate that broadcasters can possess films classified as objectionable in order to seek the Chief Censor’s consent to broadcast them?
It is because broadcasters are not included in the classification regime. A film does not have to be classified if it is intended only for broadcast. The classification and labelling regime applies only to films that are intended to be supplied or exhibited to the public. (6) Broadcasting cannot be brought within the definition of "supply". Broadcasting is specifically excluded from the definition of "exhibited to the public". Classifying a film as restricted to film festivals and tertiary institutions cannot bring broadcasters under the operation of the classification regime when the law says they are specifically excluded from the regime in the first place.
The offence regime and broadcasters
The offence regime applies to everyone, even broadcasters. It is an offence to possess an objectionable publication. A person can be convicted of this offence regardless of whether or not the publication has been classified. Why then has a broadcaster never been convicted of possessing an objectionable film? Broadcasters have a defence. Section 131(5)(b) says that a person may possess an objectionable film in good faith "for the purpose of proceedings under ... any other enactment". Asking the Chief Censor for consent under s4(2) of the Broadcasting Act to broadcast a film classified as objectionable is a proceeding under "any other enactment".
Possession of a film that is objectionable without having been classified as such is another matter and is not covered by the Broadcasting Act. A broadcaster could well be convicted of the offence of possessing an objectionable film, but it is unlikely such a film would be in a broadcaster’s possession for the purpose of broadcast, and in any event this was not relevant to Justice Hammond’s discussion of Baise-Moi. Baise-Moi was classified as restricted.
Is there an argument that a restricted film becomes objectionable in the hands of someone outside the restriction? Yes. The actual legal wording of a restriction is "objectionable except if the availability of the film is restricted to ... " According to this argument, an R18 video is a restricted video in the hands of an adult and an objectionable video in the hands of a 17 year old. A video restricted to adults at film festivals and tertiary institutions becomes objectionable in the hands of a broadcaster. Anyone who is not a member of the class of persons a film is restricted to could, on this argument, be charged with the offence of possessing an objectionable film.
There is also a powerful argument against this. The offence regime clearly makes a distinction between restricted and objectionable films. Restricted films are those that have been classified as restricted, and the offence provisions penalise those who make such a film available to anyone outside of the restricted class. To argue that those to whom such a film has been made available should be charged with possessing an objectionable film would be to penalise someone who is a victim of the offence for which the violators of the restricted film offence provisions were convicted. It is also bad policy. This interpretation would encourage people not to get films classified. The risk of submitting a film for classification and falling outside of a restriction is far greater than the risk that the unclassified film you possess is objectionable. If you merely want to possess or broadcast a film, why take this risk when you do not have to? Finally, Parliament would not have specified in the offence regime a category of offences related to films that have been classified as restricted if it had wanted those films to be treated as objectionable films in the hands of anyone outside of the restricted class. The provisions related to objectionable films would have been sufficient.
This interpretation would also create a situation in which a film classified as objectionable could be broadcast with the Chief Censor’s consent, but a film that is merely restricted to film festivals or tertiary institutions could never be broadcast because a broadcaster falls outside of the restriction and because the film does not meet the Broadcasting Act’s requirement that it be classified as objectionable.
Conclusion
It therefore seems that the restricted classification given to Baise-Moi would not prevent a broadcaster lawfully possessing it. It could lawfully come into a broadcaster’s possession provided the broadcaster did not "supply" or "exhibit" it to the public, neither of which includes broadcasting. Once lawfully in its possession, a broadcaster could broadcast the film without seeking the Chief Censor’s consent because it has not been classified as objectionable.
This is not to say that a broadcaster would. All broadcasts are subject to the standards of "good taste and decency" in the Broadcasting Act. But it is reasonably clear that the restricted classification given to Baise-Moi does not prevent it getting through a broadcaster’s door.
Since television broadcasters are excluded from the classification regime, and only a classification of objectionable will stop a film being broadcast unless the Chief Censor’s consent is obtained, why should television be one of the mediums considered by the Office and the Board of Review when classifying a film for cinematic, video and DVD release?
(1)Sections 125, 126, 130.
(2)Sections 123, 124, 127, 129, 131.
(3)Sections 6, 9(1) and 12.
(4)Section 13.
(5)Section 4(2).
(6)Section 6