Bishop ChrisFILMS VIDEOS AND PUBLICATIONS CLASSIFICATION (INTERIM RESTRICTION ORDER CLASSIFICATION) AMENDMENT BILLFirst ReadingCHRIS BISHOP (National): I move That the Films Videos and Publications Classification (Interim Restriction Order Classification) Amendment Bill be now read a first time. I nominate the Justice and Electoral Committee to consider this bill. Last year Ted Dawe's award-winning novel Into the River was banned in New Zealand. The reason it was banned was a strange anomaly in our censorship laws and it is that anomaly that this bill seeks to address. Let me start by briefly recounting the somewhat complicated factual matrix that is the background to this bill.In New Zealand publications are classified by the Office of Film and Literature Classification. In September 2013 Into the River was classified as unrestricted—M Suitable for Mature Audiences 16 Years and over"—by the classification office. Classification decisions can be appealed to a body called the Film and Literature Board of Review and this decision was indeed appealed by Family First a lobby group that sought a restricted classification for the book. So in December 2013 the board of review classified the book R14. This is a unique classification that had never previously been assigned. Don Matheson QC the board president issued a dissenting view which is very rare in these circumstances and said he would have rated the book R18.So that was where things lay until 2014 when there was growing dissatisfaction with the board's decision particularly amongst teachers and librarians because it was cutting off access to a particular class of people—young people obviously—and Auckland libraries requested that the board's decision be reconsidered by the classification office. So in August 2015 the classification was changed again to unrestricted and this was the first time the classification office had ever reconsidered a decision of the board of review.Following the reconsideration Family First again appealed the classification decision through the board of review and this time it decided to ask the president of the board of review to impose an interim restriction order—which is where we get to the bill—and that application was granted on 3 September 2015. What that restriction order did was make it illegal to supply the book to anyone or to display the book in or within view of a public place. It was the first time an interim restriction order had ever been imposed on a book in New Zealand. They have previously been imposed on films and I will talk about those in a few moments. So there was a gap between 3 September and 14 October 2015 when the board of review could examine the book again and for that 6-week period the book was illegal to be supplied or to be displayed within view of a public place. So essentially the book was banned in New Zealand for that 6-week period. After that time the board of review examined the book again and this time the majority decision was to classify the book as unrestricted and the interim restriction order was rescinded.Interim restriction orders can be issued pursuant to section 49 of the Act by the president of the board of review after an initial classification is made but before a review hearing is held by the board of review and that power is essentially replicated in section 67 when it comes to the High Court. The problem with the regime is that in the case of Into the River the president had only two options. He could either allow the decision of the censor—that Into the River should be unrestricted—to stand while the board made its decision on the appeal or ban the book entirely until the board had made its decision. What was not available to him under the existing law was the power to reinstate either of the two original classifications—i.e. unrestricted M or R14.The end result I believe was clearly a nonsense. You had a book banned for 6 weeks even though three previous censorship decisions across the Office of Film and Literature and the board of review had ruled it should be legally available albeit with some restrictions. Even the president of the board of review in his dissent in the initial hearing would have made the book R18. So what this bill does is propose a simple amendment to section 49 and section 67 of the Act to expand the toolbox of the president giving the president the same powers available to the classification office and the board of review which means the ability to restrict a publication based on age or specified classes.What this means in practice is that in the case of Into the River it would have meant the president could have reverted the book back to its R14 status rather than banning it outright. The president was unable to keep the book available even with a restricted rating on it such as R14 or unrestricted M because that power is not available to the president in the interim restriction regime currently. What this bill will do is it will give the president the power to do that. It will eradicate the binary nature of the president's decision-making options which are basically: restrict the book completely—ban a publication—or leave it under its existing restriction.I want to make a couple of comments in the time I have got left about interim restrictions more generally because I believe there is a strong case for abolishing them completely for three reasons. The first is that I believe they interfere unjustifiably with freedom of expression. Section 14 of the New Zealand Bill of Rights Act 1990 is an affirmation of the importance of freedom of expression in New Zealand. As Justice Anderson put it in Hosking v Runting it "is the first and last trench in the protection of liberty." Clearly it is of vital importance in our liberal democratic society.The problem with interim restrictions is that they give the power to the president of the board of review to ban a publication outright even after that publication has already been assessed and classified by the classification office. New Zealand courts like those in cognate jurisdictions in the United States United Kingdom and Canada have traditionally viewed with distaste the prospect of judicial restrictions on speech—this is known as prior restraint—in advance of a substantive hearing. Courts have emphasised that even in cases involving defamation breach of confidence and breach of privacy freedom of expression values will ordinarily prevail at the interlocutory stage. Given the importance of freedom of expression even at that stage I believe it should definitely prevail once an actual hearing has already been held on a publication.In the highly unlikely event that a publication is unrestricted by the classification office only to be banned later by the board of review then any harm suffered by society in the interim is surely I believe at the margins. There is no magical reason to privilege the decision-making power of the president of the board of review over the classification office.The second reason is that the extraordinary power enjoyed by the president to ban a publication in the interim is arguably unnecessary. I got the Parliamentary Library to dig up some cases and between 2005 and 2012 the board of review altered only seven classifications made by the classification office out of 101 reviews. Moreover none of these decisions reclassified a publication as objectionable—i.e. banned.Thirdly interim restriction orders can be abused and this point is neatly illustrated by the Bully and Visitor Q cases. In 2002 these two controversial films were classified R18 by the censorship office with their screening restricted to film festivals or for tertiary study. Not long before Beck's Incredible Film Festival which the films had been imported to be shown at the Society for Promotion of Community Standards appealed their classification to the board of review arguing that the films should be banned entirely and the then president of the board of review imposed interim restriction orders on the films.By the time the board of review met to consider the classification the festival had been and gone. It had finished. So the films were banned for a few weeks effectively including when they were actually due to be shown. So the Society for Promotion of Community Standards achieved its aims. It effectively banned the films at the only outlet that they were due to be shown at in the first place and of course by the time the actual decision had been made and they had been classified or reclassified by the board of review the time for them to be actually shown had gone. Actually the board of review in the case of the film Bully maintained its R18 film festival / tertiary study only classification. Visitor Q for which an interim restriction was argued was actually rated R18 without any special conditions. So what that shows is that power to issue interim restriction orders albeit not recently in the case of films can be abused.Those were just a few closing remarks about the nature of interim restrictions. It is a little-known part of the law. Probably most members of the House I suspect did not know much about them until the case of Into the River happened last year but I think Into the River demonstrates that we need to fix up this anomaly—that there is an anomaly in the law. I decided to do something about it and that is what the bill before the House does. It is a simple bill but I think an important one for freedom of expression and I commend it to the House."