Censorship in New Zealand Part One

Introduction

The very word "censorship" sends shivers down the spines of libertarians. The very notion that the state could possibly exclude some published material of some kind from our perusal is an anathema to individual sovereignty. Ever since the appearance of the printed word and art, those in authority have always tried to prevent certain members of the community from seeing or reading the material in question. The invention of the printing press, then photography, moving pictures, sound recording , radio, television, video, computer games and most recently the Internet have all challenged those who see it as a duty of the state to prohibit or restrict the distribution of content deemed unfit for part or all of the public.

This article presents a brief history of censorship in New Zealand, and presents the disturbing conclusion that although in some ways laws have become more permissive about what is allowed to be distributed, the means to enforce those laws have become more restrictive.

It should be noted that this article concentrates on publications, not broadcasting censorship. Broadcasting censorship is covered by the Broadcasting Act 1989 and enforced by the Broadcasting Standards Authority. This regime is significantly stricter than that covering publications (the Film, Videos and Publications Classification Act 1993). Nor is the issue of the censorship of music or computer games, not insignificant topics in themselves, addressed. Acknowledgement is given to the book In the Public Good? by Chris Watson and Roy Shuker, for providing much of the background information on the history of censorship in New Zealand.

Background

Why do Government's censor? The answer, as is the case with virtually all forms of regulation, is to control the population. This is couched in terminology of "protection." The most often-quoted justification is to "protect children and young people." However, there is a more general desire to control ideas and emotions through social engineering with much censorship law. When most people think of censorship, two ideas are likely to enter their heads. Politics and sex. Censorship is about preventing access to ideas which the Government of the day does not believe are desirable to meet its ends (oops sorry, the "public good"). Those ideas may involve political ideology (Marxism), political ideas (legalisation of recreational drugs), religion or even the status of groups in society.

This control often involves the extremely sensitive area of sex, the aspect of human relations which religion and the state have been trying to regulate (and still do) for many centuries. Portrayal of sexual activity in text or pictures offends those who have their own difficulties with nudity and sexuality, and wish to restrict communication on sexuality to those channels provided by the church, state and/or on an individual level. Curiously, this attitude is shared by both fundamentalist Christians and feminists.

The state tries to prohibit certain material from even existing, and to restrict other material to those above a certain age (playing a parenting role, in the guise of assisting parents).

It should be noted that this issue crosses over into three other broad topics of interest, particularly from a legal perspective:

1. Intellectual property rights are a separate issue, and it should be noted that protection of and trading in intellectual property has nothing to do with censorship and should not be confused with it. The owner of a piece of work must be able to protect and benefit from her property right.

2. Privacy law is of passing interest, because certain publications (text, photo or video) can involve a breach of privacy, which I assert offers a solution to some of the issues surrounding those who prefer censorship to deal with these matters. For example, it may be considered a breach of privacy law for a video camera to be placed in a women's changing rooms and for the activities to be recorded and distributed without the persons in the recording being aware of it.

3. Finally, and most importantly, some matters considered to be within the domain of censorship are criminal acts in themselves. Clearly, a video recording of an actual rape would make the person recording the event an accessory to the crime. I shall return to the application of criminal law to censorship issues in a following article.

History

Until 1993, New Zealand had developed three separate censorship regimes according the medium used for the publications involved. Printed material was covered by customs regulations from 1858, followed by the Offensive Publications Act 1892, the Indecent Publications Act 1910, culminating in the formation of the Indecent Publications Tribunal in 1963. Films were censored from 1916, with the creation of the Chief Film Censor. Video recordings were subject to the jurisdiction of the Video Recordings Authority from 1987.

No prosecutions appear to have occurred before 1890, but each of these regimes was characterised by a different history reflecting the nature of how film, literature and videos are accessed by the public. As films were seen at cinemas, public screenings were seen as easier to regulate, as were the audiences attending them. Film was seen as being more influential upon the public, although less accessible than printed publications. By contrast, as books and magazines were sold to private individuals the need for greater censorship of private consumption was perceived. By the 1980s, with video cassettes bringing access to films to the individual in his own home, there were calls to regulate which resulted in the creation of a separate regime.

Censorship of printed material was initially driven by the entry at the turn of the century of erotic literature from Europe. Subsequent great "cause celebres" of printed literature such as Lady Chatterly's Lover in the 1920s and Nabokov's Lolita in the 1950s, pushed the boundaries of legality during the century.

In 1920, a system of voluntary classification had been introduced to assist parents in choosing whether a particular film was suitable for their children to see. A simple "A" classification recommended a film for "adults only" and "U" for universal audience. Unlike the current approach of mandatory screening on the basis of age, in the 1930s, the then Chief Film Censor W.H. Tanner argued that censorship to protect children was "up to parents and should be left as such." He saw films of adult nature as not being understood or of interest to children, therefore the problem did not exist.

The primary concern of censors of printed material, film and video cassettes has been sexual content. Early legislation censoring printed publications even included a prohibition on any publications "relating to any venereal disease." Presumably material advising how to prevent such disease was included in that definition! Concern overwhelmingly of censors was material which would "weaken the moral fibre."

Although it is arguable that all censorship is political, one of the more notable cases of censorship for political purposes was Sergei Eisenstein's famous film Battleship Potemkin (a depiction of the 1905 mutiny on the Potemkin and the massacre of the crew and its supporters on land by Tsarist troops) which was prohibited from release until 1946 and then only to members of film societies (a curious classification which remains available to this day, resulting in the continuing growth of film society membership).

Juvenile Delinquency

The next wave of enthusiasm for censorship came in the 1950s, with the arrival of youth culture influences primarily from the United States. The influence of James Dean, and the beginnings of rock and roll music (at a time when New Zealand only had the very staid NZBS holding the monopoly on radio broadcasting, and television had not even been permitted yet) saw concern raised by those busybodies and "citizens' groups" who demanded that "something be done" about these obvious negative influences on the New Zealand ideal. Events observed among young people in the Hutt Valley in the early 1950s who attended "milk bars" saw the arrest in July 1954 of sixty youths charged with offences such as sexual activity with girls under 16. The shock was that both the males and females involved showed no remorse or belief that they were acting wrongly, which the police claimed showed a high degree of immorality among youth. This was linked to comic books, rock and roll music and "American" films, especially Rebel Without a Cause and The Wild One. The Wild One was subsequently banned. The Pauline Parker/Juliet Hulme trial (two 16yo Christchurch girls who pleaded guilty to murdering Pauline Parker's mother, depicted in Peter Jackson's film Heavenly Creatures) occurred around the same time, with both the murder and the intimate relationship between both girls considered to be linked to the perceived new climate of immorality amongst young people.

The response of the Government was to commission the Mazengarb Report to consider how such "shocking" immorality could be addressed. A copy of the Report was distributed to every household in the country, with recommendations to deal with the problem! The censorship response was two-fold. All literature which unduly emphasised "sex, horror, crime, cruelty or violence" was to be considered indecent, with all publishers and distributors of literature to be registered! Consideration was also to be given to the target readership of certain publications, aimed clearly at comics. The other move was to make it an offence to distribute contraceptives or advice about contraceptives to persons under 16. It should be noted that that provision on contraception was not repealed until the late 1980s. I experienced the absurdity of sitting in a 5th form class in 1985 and being taught the biology of human reproduction (as if that was what a class of 15-16yo teenage boys really wanted to know, as opposed to how to lure someone else to engage in such activity!) and the teacher then explaining (disappointedly) that he could not answer questions or discuss contraception with us because the law prohibited it!

The Report was the beginning of the end of the "innocence" of New Zealand. The idea that New Zealand was a cohesive, God-fearing, somewhat ascetic country, where young people grew up "wholesome and healthy" in the mould of that famous eugenicist Dr Truby King (who provided much material which Hitler would have approved of). Young heterosexual (the word wasn't even necessary) people went to church, played outdoor sports and got steady jobs and married. This harmonious order was shattered by those events and to some, the rot had only just started to set in!

1970s and 80s

Both sexual content and violence became increasing concerns for censorship authorities during this time. With the significant liberalisation of attitudes to sexuality and laws on pornography in Western Europe and North America during this time, entry of such publications became a new challenge for censorship authorities facing conflicting calls for more liberal attitudes vs. the usual calls to prevent the spread of immorality.

Playboy, Penthouse and Hustler, were the most well known of such publications. (See the film The People vs. Larry Flynt for a depiction of the legal battle in the US over the constitutional right to free speech defended and won by Larry Flynt, founder and publisher of Hustler magazine). Playboy was founded in 1953, but not permitted to enter New Zealand until 1963. Penthouse was founded in 1965, but not permitted in New Zealand until 1970, although it was banned from 1984 to 1991 under the "tripartite" test of indecency once more. The legalisation of homosexual activity between consenting males 16 and over in 1986 saw erotic literature containing such material become legal for the first time as well. This was the final significant liberalising of censorship in New Zealand before the current regime was introduced in 1993.

How the filth was judged

The term "indecent" was the point of legal interpretation for printed publications until 1993. The test applied by the Indecent Publications Tribunal to determine "indecency" was whether a publication was "injurious to the public good." This was determined through what was known as the "tripartite test" which had been crafted by the courts. A publication containing all such content would be judged as "unconditionally indecent" and therefore banned for sale and distribution. This was as follows:

1. Scenarios involving more than two models (oh dear, can't have threesomes!), and in which sex and violence and intimacy and/or deviant (oooo, like chastity? that's deviant) aspects of sex are depicted among the models;

2. Multiple model scenes which depict lesbian acts (sigh! what killjoys!);

3. Heterosexual scenarios in which there is a high degree of intimacy (e.g. fellatio or cunnilingus or intercourse) depicted in the couple's actions (oh really, mustn't do more than kiss and touch, why bother??).

In addition, erotic depictions of sexual acts which were illegal — homosexual acts, sex with children, and incest — were banned (unless an exception were made in the case of a publication which was deemed to be of "artistic, literary, scientific, or scholarly merit") (oh we must let those "academic" types have access to indecency, because they have a legitimate purpose to peruse them and, oh yes, they are less likely to engage in the immorality than normal Labour and National Party voters).

The Cinematograph Films Act of 1976 gave the censor less discretion in determining what was "injurious to the public good" by broadly defining what that meant. The Chief Film Censor was to consider the dominant effect of the film, its artistic merit (the state arbitrating on taste), depictions of anti-social behaviour such as violence, crime, sex (a thoroughly social behaviour usually) and indecent language or behaviour, denigration of any class of the general public according to "colour, race, or ethnic or national origins... sex, or... religious beliefs" and "any other relevant circumstances relating to the proposed exhibition of the film" (the "blank cheque" to ban).

This reflected the beginning of the influence of the Human Rights Act approach to censorship, with films no longer permitted to include denigration of certain groups nominated by the state. Undoubtedly trying to protect us from fascist opinions the state disapproves of while imposing its own brand of fascism upon us!

One of the most absurd cases was when the then Chief Film Censor Doug McIntosh had to classify the film Ulysses (1967). The word "fuck" was used once in the film and McIntosh was faced with balancing the "high art" content of the film with the concern over the use of that one word. McIntosh believed the main problem with that word was the offence caused by hearing it in the company of the opposite sex, so the film was rated R18 for gender-segregated audiences. Audiences faced separate screenings for men and women, or sometimes physical separation in theatres.

With video cassette hire and purchase becoming more easily available, by the mid 1980s the pro-censorship lobbyists feared that this new technology would mean that they could not control what was previously the domain of cinema, which they could control. As has become the commonplace in the past 20 or so years, the pro-censorship lobby focused on the extremes (and the tiny minority of material) of bestiality, child pornography and "snuff" movies (the last mentioned referring to films which actually involve the killing of an actor. The original movie "Snuff" did not involve actual violence). Brain-dead depictions of violence being seen by children were a particular concern. As a result, a third censorship regime was introduced in 1987, with the Video Recordings Authority. This Authority would classify videos much the same way as the Chief Film Censor, with "injury to the public good" being the basic test.

Conclusion

The after-effects of the 1984-1990 Labour Government saw a significant change in the censorship regime in New Zealand come into effect in 1993, motivated by a strong feminist agenda of that Government and reinforced by the conservative Christian agenda of some MPs in the 1990-1993 National Government.

A unified regime for printed publications, films, videos and all other publications (CD-ROMs, computer games, recorded music, t-shirts, teapot paintings, etc.) would be introduced.

The next article outlines the current censorship regime and analyses it more thoroughly from a libertarian perspective, explaining how in some ways censorship in New Zealand is now more intrusive upon individual liberty than it has ever been, while technology makes it increasingly more difficult to credibly regulate the flow of 'non-approved' content.

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