By Steven | September 11, 2015
Here’s an article I wrote about 10 years ago. It’s about how the President of the Film and Literature Board of Review used her powers to make interim publication orders…. and then stopped. Bits of the law and practice may now be a bit out of date. But I’m inclined to think it’s relevant to the current debate about Into the River, especially the suggestion at the end that if the Board were to meet by telephone conference, this whole problem would disappear.
On the morning of Friday, July 12, everything was set for the launch of this year’s Auckland Film Festival. The programmes were printed. The theatres were booked. Hundreds of advance tickets had been sold.There was just one snag: festival director Bill Gosden didn’t know whether he’d be allowed to screen the opening film.
Gosden had good reason to sweat. Four days earlier, the Society for the Promotion of Community Standards had challenged the censor’s R18 rating for the opening film, Y tu mama tambien. The next day, the society asked for an “interim restriction order” – a temporary ban preventing the film from being publicly screened until the challenge could be determined.
The challenge wouldn’t be determined until the members of the Film and Literature Board of Review could meet together to discuss the film. That wasn’t going to happen for at least another five weeks.
So, eight hours before the Y tu mama tambien reels were due to roll, Gosden still didn’t know whether he was allowed to put them on the projector. He was seething with frustration and indignation. “The three days before the Auckland Film Festival opened were bad for my life expectancy,” he says.
Everything depended on whether the temporary ban would be imposed. The signs weren’t good. Earlier in the year, the SPCS had challenged the ratings of two films that were due for screening in Beck’s Incredible Film Fest, Bully and Visitor Q.
It also applied for temporary bans. It got them.
“It is in the public interest to allow applicants the right of review as set out in the Act,” wrote Claudia Elliott, the Rotorua-based lawyer who heads the Film and Literature Board of Review. “If the film is shown in the interim, the effect of the review would be lost.”
Elliott alone has to decide whether or not to grant these interim applications. The law doesn’t give her much help. It just says she has to impose an interim ban if she’s satisfied that it’s “in the public interest” to do so.
It’s a tough call. If she bans the film, she prevents hundreds of festival-goers from exercising their rights, even though the chances are high that the Board of Review will simply confirm the censor’s rating. (Last year, of 15 ratings referred to the Board of Review, 13 were left as they were.)
If she doesn’t ban the film, she’s denying the society its day in court, and frustrating a right of challenge that Parliament clearly provided for. What’s the point of a review if the film could be screened, and the damage done, before the review is even held?
In the Bully and Visitor Q decisions, Elliott signalled that she was going to protect the integrity of the review system over the rights of film-goers. She warned festival organisers that they would just have to get their films classified earlier to give a fair shot to anyone who wanted to challenge the classification.
Any lawyer looking at those decisions on July 12 would have sighed grimly, clapped Bill Gosden on the shoulder, and said, “sorry mate, you’re buggered. Better find another film in a hurry.”
But Gosden didn’t give in. He put together some submissions, desperately trying to convince Elliott that an interim ban wasn’t in the public interest. The SPCS hadn’t even seen the film, he asserted. Its claim that the film showed boys being “exploited by an adult woman for the purposes of sexual gratification” wasn’t warranted.
The film isn’t harmful at all: it’s been favourably reviewed, it’s not exploitative or pornographic, it’s been released with popular success overseas. Besides, it’s restricted to those over 18 who see it at the festival. Festival-goers are sensible, mature types. An AC Neilson survey shows that 60 percent are Concert FM or National Radio listeners. Governors General attend! Where’s the harm?
On the other hand, if the ban were imposed, the festival would suffer serious harm to its finances, its credibility and its reputation for providing worthy – if provocative – fare, rather than child porn.
Most of these arguments were relevant and well-made. Problem was, most of them were also made during the argument about the Bully and Visitor Q bans. Elliott didn’t accept them then. And when you looked at the reasoning in those cases, there didn’t seem to be any good reason to treat Ytu mama tambien differently.
At high noon on the opening day of the festival – really, exactly 12:00 – the fax machine at the Department of Internal Affairs spat out Elliott’s decision: no interim ban.
The society hadn’t made out an arguable case, she found. She acknowledged that it was hard for the society to do so without having seen the video. But now the public interest demanded that overseas ratings be taken into account, and the merit of the film, and the fact that it was subtitled and therefore of limited appeal. This time, she cited cases emphasising free speech. This time, the public interest required respect for the integrity of the censor’s original decision rather than the society’s right to challenge it.
Gosden, of course, was elated. For him, this was plainly the right decision, even if it was a change of direction. “It seems to me that Claudia Elliott has been on something of a learning curve,” he suggests.
What changed? Elliott didn’t respond to requests for an explanation.
Gosden wonders whether Elliott has grown more savvy about the realities of film festival organisation. Festivals source films from an enormous variety of distributors and sales agents, he explains. Some give you a copy of the film months in advance. Some don’t send it through until two days before it’s due to screen. Gosden recalls that Elliott questioned him closely about issues like this during a recent Board of Review hearing on another film. Elliott’s decision in Y tu mama tambien acknowledges Gosden’s argument that he submitted the film as early as he could for classification. Then she immediately notes that the society had every right to make the application it did.
Ant Timpson, who organises Beck’s Incredible Film Fest, has a different explanation. “She has made a definite distinction between two different film festivals…an elitist one,” he wrote in an email. “Are they saying the audience that attends my festival is ‘dangerous’? That they aren’t adult enough? Insane.”
Elliott doesn’t say any of that in her decisions. But nor does she give any principled reason for treating the films differently, so Timpson can be forgiven for wondering what’s going on.
Timpson is sure that if it had been him and not Bill Gosden who wanted to screen the films, Elliott would have granted the interim ban. He sees it as straight-up bias. And he’s furious about it.
Gosden suspects Timpson rather shot himself in the foot by “presenting every film as if it were an occasion for moral panic.”
Timpson had indeed ramped up interest in his festival by hyping the films as controversial and cutting-edge. “Believe me, some of these films will be very lucky if they manage to slip past the realm of the censors,” said his programme guide. “If last year’s fest was the equivalent of bungee jumping, you could say that this is the year the rubber snapped.”
Timpson says his films have been pushing boundaries for ten years. That’s what his festival is about. Yes, he’s upfront about the content of the films. He thinks that’s a useful service to people who are thinking of coming along.
And he can’t see what his attitude – even if it is disrespectful – has to do with the classification of films.
So…how do films get classified? What exactly is relevant? Films - along with videos, books, newspapers, CDs, computer files, magazines, billboards, and even t-shirts and playing cards – are dealt with by the Films, Videos, and Publications Classification Act. This Act is much more interesting than it sounds, because it contains the law on what we’re allowed to see and hear and what we’re not.
The crux of this Act is the definition of “objectionable”. Nothing can be banned or even age-restricted unless it’s objectionable. To be objectionable, a publication, including a film, must deal with matters such as sex, horror, crime, cruelty or violence. (That’s been interpreted by the courts to mean that things like hate speech can’t be restricted in any way, unless they’re associated with, say, violence.)
So far, no problem. All the festival films under challenge deal with sex. And how. Many of them contain goodly amounts of cruelty, violence and crime as well. But that’s not enough by itself. To be objectionable, their availability must be “likely to be injurious to the public good.”
How can you tell whether a film is likely to be injurious to the public good? You can’t. There’s really no science about it. There’s a list of factors in the Act: is there torture or sexual coercion? Is it degrading? Does it promote or encourage criminal acts? Does it have artistic, social or cultural merit? But at the end of the day, it boils down to a gut feeling about whether the publication is harmful.
So the key question in the censorship system – in any censorship system – is: whose gut is consulted?
In New Zealand, the most important gut belongs to Chief Censor Bill Hastings. Hastings was one of my lecturers at law school in the late eighties. He was hip, approachable and slightly eccentric, wont to stop lectures in the middle and talk about his baby daughter. Some lecturers present the law like a maths problem: a set of rules that, properly applied, produce clear answers. Not Bill. Hastings emphasised the ambiguities. He presented law as a tug of war between competing interpretations and interests. For him, law is not so much about finding the right answer as finding the better argument. It’s an approach that leaves room for strong views and genuine disagreement, and for conclusions that are robust and rigorously tested but don’t claim to be divine truth.
It may be the only approach to censorship that makes any sense.
Hastings and his staff look at the statutory criteria, and classify the films. (Actually, if a film isn’t restricted in Australia or the UK, then we just piggy-back on Australia’s classification. If it is age-restricted there, we decide what to do with it for ourselves.)
If you’re dissatisfied with the censor’s decision, there’s a right of review to the Film and Literature Board of Review. This contains the nine next most important guts in the country.
How are they chosen? They’re appointed by the Governor General on the recommendation of the Minister of Internal Affairs with the agreement of the Minister of Justice and the Minister of Women’s Affairs. (“What is the Minister of Women’s Affairs doing there?” asked lawyer Don Dugdale in the New Zealand Law Journal, shortly before the Act was passed.) The President has to be a lawyer, but the only qualification for the rest is “knowledge of, or experience in, the different aspects of matters likely to come before the Board.”
What comes before the Board is often hard-core pornography and graphic violence. So that’s interesting.
Troubling fact: add together the vagueness of the definition of objectionability the Board members are applying, and the fact that the law says they don’t actually need any evidence in order to find that a particular film might be “injurious to the public good,” and you get a recipe for danger: will this coterie simply apply their own whims and agendas and prejudices, and dress them up as reasons to ban and restrict things?
Comforting fact: in the years since the Board of Review was created in 1993, there have been only six court challenges to its decisions.
Troubling fact: in five cases, the court has found that the Board made a legal botch of one kind or another.
Comforting fact: by and large, the Board’s decisions aren’t out of line with the classifications reached overseas.
In recent years, the Board has tended to be a little more liberal than the Censor’s office, lowering age restrictions on Savage Honeymoon, Cruel Intentions, Joan of Arc, and Saving Private Ryan, for example. It reduced the classification on the only film festival film taken to the Board before this year, the Danish comedy-drama Mifunes Sidste Sang, from R18 to M (unrestricted but recommended as suitable for those 16 years and over.) “The sexual material and coarse language in the film is only given sufficient screen time to keep the plot moving along,” it found.
The Board has very rarely banned anything. But its President, as we’ve seen, does have the power - never used before this year as far as I can tell - to ban things temporarily, as a holding pattern between the original classification by the censor and the Board’s review. This is the power that the rejuvenated SPCS called upon to throw a spanner in the projector of Timpson’s Incredible Film Fest. This is the power Elliott refused to exercise to stop Y tu mama tambien and another festival flick, The Piano Teacher.
Elliott’s u-turn on interim restriction orders has produced an exquisite irony: common ground between Timpson and his nemesis David Lane, the SPCS’s secretary.
Lane, too, is outraged at Elliott. His reasons are a bit different though. He thinks Elliott has changed the ground rules in a way that’s illegal and unfair on those who want to challenge the censor’s classifications.
On the basis of the latest decisions, Lane and the society will have to come up with arguments about how any particular film is detrimental to the public interest, and make out an arguable case, before a temporary ban will be ordered.
Often, he’ll have to do this without even seeing the film. He won’t say whether or not he has seen the films the society has complained about (though it’s difficult to see how he could have). But he says that’s irrelevant anyway. “We don’t have the intention of being censors,” explains Lane. “If we feel there are good grounds for concern [about a film], we put it over to the President of the Board to decide whether it warrants an interim restriction order.”
How does the society decide whether it has concerns? It looks through the festival programmes, and identifies films it thinks are objectionable. Then it gets a copy of the censor’s decisions on those films, which provide further information about their content. It might read whatever it can get over the internet. If the society thinks the classification looks dodgy, it puts in a challenge. Then it asks for a ban in the meantime.
The society’s lawyer, Peter McKenzie QC, says it’s not up to the society to prove that a ban is in the public interest. Once the question is referred to Elliott, it’s up to her to look at the film and make up her own mind about whether the public interest justifies an interim ban. “She’s required by the statute to make her own judgment on the issue,” he says.
Again, the law isn’t much help here. All it says is that Elliott must be “satisfied” that an interim ban is in the public interest. Does that put an obligation on anyone seeking such a ban to convince her? The festivals think so. Chief Censor Bill Hastings thinks so. The Society doesn’t.
Nor, apparently, did Elliott when she granted interim bans on Bully and Visitor Q. Elliott noted that the Society hadn’t seen Visitor Q, but that didn’t stop her granting the interim ban.
But, apparently, it does now. Under her new approach, there’s a rather glaring problem for the Society. What’s it supposed to do? Phone up Ant Timpson and ask for a copy of any video it wants to challenge so that it can make better arguments for a ban?
Where does all this leave us? We have two different sets of decisions from Claudia Elliott. One set seems to justify an interim ban in almost any case, and could be used to upset any film festival that can’t push its films through the censorship process about three months in advance.
The other set seems to preclude an interim ban in almost any case, and could be used to give the green light to the public screening of any film even if a serious challenge is pending.
It’s difficult to understand why these decisions are different. It’s difficult to predict which will be used in the future, unless we assume that the latest decisions (the Gosden ones) represent an ongoing change of policy.
Big deal? Maybe bigger than you think. Mainstream film distributors have been watching these developments nervously. Imagine, for example, if someone took exception to Lord of the Rings: the Two Towers, lodged an application for review a few days before its premiere, and asked for an interim restriction order. Blockbuster films are scheduled months in advance. Distributors promise to deliver movies to cinema owners on particular dates. TV and magazine advertising is lined up. Increasingly, films are released internationally on the same day. Once a film is queued up in this process, it’s very hard to replace. “The possibility exists that we could be derailed,” says Andrew Cornwell, General Manager of Columbia Tristar (N.Z.) Ltd, which has distributed films like Spiderman, Men in Black II, and Black Hawk Down. “We’d be absolutely gutted.”
He may be right to be afraid. Arguably, it’s easier to justify a temporary ban on mainstream films than film festival ones. Such a delay would only bump the screening back a bit, not stymie the few public screenings of a film that may never return to the country.
Gordon Adam, of arthouse film distributors Metropolis Film, is worried too. “It could cost us thousands in forward buying of advertising space which I can’t recover,” he says. Sure, there might be a bump in interest if the restriction order gets splashy publicity. But that will have dissipated if the Board doesn’t give the go-ahead pretty quickly after that.
Adam and Cornwell are breathing a sigh of relief about Elliott’s refusal to stop Y tu mama tambien. “I think she did do an about face,” says Cornwell, “but she made the right decision. If she’d opened the sluice gates, she would’ve found it hard to turn down any application in the future.” Why did she change direction? “She had a bit more blowtorch put on her. A restriction order would’ve unleashed hell.”
Still, the conflicting decisions from Elliott don’t give the distributors any assurance that what happened to Ant Timpson won’t happen to them. Consider Monster’s Ball, which Adam distributes. There’s sex: a father and a son (separately) bonk a hooker in a hotel room. There’s violence: the son shoots himself in the head. You can imagine an organisation like SPCS regarding it as injurious to the public good, even though it earned Halle Berry an Oscar.
As it happens, Hastings arranged a screening for a cross-section of the public to get some feedback before his office classified it. He made it R18.
None of that would have prevented a temporary restriction order from wreaking havoc with the film’s scheduling if someone applied to have it reviewed.
The distributors don’t object to the censorship system. What infuriates them is the cumbersome way it’s being run. “The main problem is that the Board is not able to meet in a timely manner,” says Cornwell. “There is flexibility within the system,” he points out. The Board just isn’t using it.
It seems like the perfect solution. If the Board can hear and determine applications quickly, then temporary bans won’t be necessary, and if granted, won’t matter.
The Board’s nine members are scattered around the country, and getting them together in one place is logistically difficult. But it’s also unnecessary. Under the censorship law, the Board can sit in divisions. It can determine its own procedure. When the Board receives a challenge to a particular film, there’s nothing to stop Elliott from firing copies off to three Board members and holding a hearing via teleconference. Objectors get their day in court. Usually, the Board will uphold the censor’s decision, and the screening can go ahead as scheduled. If the Board finds the film objectionable and bans it permanently, the film-shower will have a chance to make alternative arrangements.
But the Board hasn’t been doing this. It has never sat in divisions. It has never held meetings by teleconference. It is required to conduct reviews “as soon as practicable”, but it can take months to hear some applications.
Elliott didn’t reply to questions about the Board’s procedure. Perhaps the Board prefers to meet in person because that’s the way it has always been done. Perhaps, since most of the latest members were appointed only last June, they think it’s important that they deliberate together while they get a feel for the job.
There may be another, more convincing, reason. Anyone who wants to challenge one of the censor’s classifications has six weeks to do so, after the classification is published.
The current Board’s practice is to wait for those six weeks to elapse before conducting its review.
It seems a justifiable interpretation of the law. Just because one application is lodged early on, that doesn’t mean another one won’t turn up toward the end of the appeal period.
Never mind that this has never happened before.
Never mind that previous Boards often conducted reviews before the appeal period had expired.
Never mind that media lawyer Sarah Bacon of Izard Weston, media law lecturer Ursula Cheer of Canterbury University and Chief Censor Bill Hastings all think the Board can hear reviews within the six week period.
Never mind that once an application has been lodged, others affected can come along and submissions without lodging their own applications.
Never mind that this solution would often suit everyone, and it’s difficult to think of anyone who would complain about it.
It seems that the Board’s convenience is more important than the public’s.
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