Sometimes being in favour of free speech means having to really grit your teeth and hold your nose.

Given that this is going to be a post on free speech issues, I should begin by saying that on the whole, in the round, all things considered, it is not "a good thing" for a blogger who puts up a deeply offensive, callous and hurtful post to receive death threats as a result. And that especially is so when the threats (so it is claimed) extend to his young daughter.

Yes, he-who-we-do-not-need-to-name is a bit of a tool. And, yes, what he wrote was (and is) inexcusably nasty. But threatening to kill the guy (much less his family) for it is just not on. And worse than being a crime, it is a mistake - look how it has fed into his ego trip, given him a chance to play the martyr in public and doubtless driven a bunch more webclicks his way.

So let's all just apply the reverse strategy to that needed to keep the Weeping Angels at bay: turn our backs, look away, and blink.

That said, and general free-speech priniciples now having been upheld, I'm not really here to talk about whatshisface's travails. Instead, this item on stuff.co.nz caught my attention;

A Nelson man has used the Bill of Rights to win a battle with New Zealand Post that will benefit others posting letters containing items.

Gerald Moonen's victory follows a visit to the Nelson Postshop to send a letter containing a compact disc to friends in Wellington.

While it met the size and weight restrictions for a standard letter, which costs 70 cents to post, Moonen was told that it would have to go as a parcel, costing $3.30.

...

The Office of the Ombudsman advised Moonen to raise his concerns with NZ Post's chief executive. He did, and has now received a response from Brian Roche saying that the postage brochure "Sending Made Simple" contained an error, as it implied that international letter restrictions also applied to domestic items.

There had been a limited print run of the brochure, and the error had now been corrected, Roche said.

"While letters sent international may only contain paper, letters sent within New Zealand may also contain other small items, provided that they fit within the specified dimensions and weight for each size option, and do not contain restricted or prohibited items."

First of all - good! If you are paying to send a letter by size and weight, it makes no sense at all for NZ Post to care what is in it (beyond the obvious sorts of limits on dangerous or offensive materials). I mean, does it make any sense to say that if I handwrite a 40 page rant to the DCC over the stupidity of spending hundreds of millions of dollars on a building that sits empty for most of the year because (surprise, surprise!) the Rolling Stones don't want to bring their world tour to the furthest point of New Zealand, and everyone is getting tired of all the rugby that gets played, plus it is easier to watch sports on Sky anyway, then this is a "letter"; but if I try to send the same message as a file on a data stick that weighs less it becomes a "parcel"?

No. No it doesn't. So hooray for Mr Moonen and his hard-won victory for common sense!

Having said that, this issue really didn't seem to have much to do with the Bill of Rights Act. It appears that NZ Post had no policy of discriminating between forms of communication; it just misstated what its actual policy is in a pamphlet, which some zealous counter worker then relied on when dealing with Mr Moonen. Once that error was brought to NZ Post's attention, it admitted it and undertook to fix it.

Now, of course, if NZ Post did actually have a policy of only allowing paper in "letters", then there would be a Bill of Rights Act issue. Even though NZ Post is a State Owned Enterprise, a case from the early 1990s (Federated Farmers v NZ Post [1990-992 3 NZBORR 339 (HC)) found that its role in delivering the mail is a "public function", and so the Bill of Rights Act applies to those parts of its operations. And telling people "we'll charge you 70c to deliver a paper letter, but nearly five times that much to deliver a datastick that weighs less" does limit a person's right to express themselves in whatever form that they choose. And, finally, there doesn't seem to be any reason at all, let alone a "demonstrably justified" reason, for imposing that limit. 

(That then raises the question as to the status of NZ Post's policy that "letters sent international may only contain paper". I'm going to assume that the justification for this rule lies in a bunch of international conventions/agreements with other postal services (and carriers of postal material), rather than being something that NZ Post has dreamed up for itself.)

So if NZ Post was so silly as to discriminate between forms of communication when charging for delivery (which it actually doesn't seem to have intended), then the Bill of Rights Act might have had something to say about the matter. But as NZ Post doesn't seem to have been silly (as opposed to careless), it doesn't.

However, as I was reading this story, something about it was bugging me. Then, when I came to the last lines of it, I realised what it was:

It's not the first time Moonen has successfully used the Bill of Rights. He won a landmark decision in the Court of Appeal in a case against the Film and Literature Board of Review in 1999.

That dropped the penny! Mr Moonen is the "Moonen" from Moonen v Film and Literature Board of Review; the at-one-time seminal decision on how the Bill of Rights Act interrelates with other pieces of legislation. It's worth noting at the outset just what his case involved:

[Mr Moonen] appealed to the [Court of Appeal] from the decision of the Film and Literature Review Board banning possession and sale of a book called The Seventh Acolyte Reader and various photographs. The book contained nine stories which described sexual activity between men and boys under the age of 16; many of the photographs were of naked children, mostly boys.

Indeed, the material had originally come before the Board after Mr Moonen, who was the self-declared chairman of the "Australiasian Man/Boy Love Association", was  arrested and charged with importing prohibited goods under the Customs and Excise Act 1996. The Board's role in the matter was to determine whether, in fact, the material (being the book and photos) was a "prohibited good" due to its "objectionable" nature.

(Mr Moonen's explaination for why he wanted this material was that "he was intending to select some of the photographs ... for the publication of a photography and poetry book in Europe. The aim of this project was to express the essence and beauty of boyhood", a reason that the Board appears to have taken with a healthy grain of salt.)

So, as with so many freedom of expression cases, the background is ... not particularly nice. Nevertheless, the Court of Appeal agreed with Mr Moonen that the Board had erred in law by not directly considering his right to receive information in whatever form he chose when considering whether the text and images in the book were "objectionable" (i.e. unlawful to posses). Meaning that Mr Moonen "won", in that the Court required the Board to re-classify the book and photographs after considering the relevant legislation in light of Mr Moonen's right to receive the relevant information.

Which the Board did ... before reaching the same decision it had previously; that the material "[tended] to promote and support the exploitation of children, or young persons for sexual purposes", and therefore was "objectionable" in nature. Mr Moonen again appealed that decision up to the Court of Appeal, which ultimately agreed with the Board's finding. 

So it's a bit of a stretch to say Mr Moonen "won" his case. Yes, his initial challenge established that the rights in the Bill of Rights Act must be considered when applying other pieces of legislation - even legislation designed to prevent people getting or owning material that promotes the sexual exploitation of children. But the Board, and the courts thereafter, had no problem in deciding that the stuff Mr Moonen desperately wanted to see was so bad that his "right" to receive it could justifiably be overridden.

So perhaps the moral of the story is, be careful about wishing for heroes. Because you never know what guise they will come in - be it egocentric blogger with a limited capacity for empathy, or aging pedophile activist seeking images for his "artistic works".

One quick postscript. Mr Moonen's past history does throw into a new light one part of the current story;

[Moonen] said the woman behind the [NZ Post] counter demanded to know what was in the letter and told him she would open it.

This outraged Moonen. "I said, ‘You can't interfere with people's mail'."

I wonder just why Mr Moonen was so worried about anyone opening the envelope and examining the CD contained therein?

Comments (14)

by Siena Denton on January 29, 2014
Siena Denton

Kiaora Andrew

My only comment on whatsits comments about a car crash that claimed the life of a young man whom whatsit labelled "feral" and has "done the world a favour" are indeed hurtful to a family that has been beseiged by tragedy on previous occasions.

They lost a seven year old to a drunk driver and another in the Pike River Coal Mine tragedy and now recently another loved son, who was a passenger in a car.

Whatsit gets all that he deserves from the Greymouth community, but not his daughter.

Quite frankly, who would want to do 'porridge' and a very long-stretch in a correctional facility, for knocking off a Tohora?

He's not worth it and he's not worth a dime.

As for Mr Moonen, who was the self-declared chairman of the "Australiasian Man/Boy Love Association"

One can only assume that there was objectional and obscene material on his CD of young boys.

I do hope that the folk in Nelson are aware that they have residing in their community a dirty pedophilic homo who indulges in lusting and leering at images of the "beauty of boyhood".

Children have to be protected from these predators.

 

by Graeme Edgeler on January 29, 2014
Graeme Edgeler

So it's a bit of a stretch to say Mr Moonen "won" his case.

The charges were thrown out. In a criminal case, that's a win.

by Andrew Geddis on January 29, 2014
Andrew Geddis

The charges were thrown out. In a criminal case, that's a win.

But not due to the Court of Appeal's rulings, or the effect of the Bill of Rights Act. See here:

The criminal charges laid by the Customs Service against Mr Moonen were eventually dismissed due to errors in the original investigation.
by Graeme Edgeler on January 29, 2014
Graeme Edgeler

But not due to ... the effect of the Bill of Rights Act.

The error in the original investigation was an illegal search; now you can say that doesn't involve the Bill of Rights Act, but others might disagree.

Incidentally, the search was illegal because someone lacking the authority to open his mail, opened his mail, thereby committing a more serious offence (up to six months' imprisonment) than the one with which Moonen was charged (maximum three months).

 

by Andrew Geddis on January 29, 2014
Andrew Geddis

The error in the original investigation was an illegal search; now you can say that doesn't involve the Bill of Rights Act, but others might disagree.

Sigh.

But not due to the effect of the free speech guarantee in the Bill of Rights Act and its effect on the understanding of the Films, Videos and Publications Calssification Act ... which was the subject of the Court of Appeal case that the article said he "won". Which was the topic of my post.

And if he "won", did he get his book and pictures? Did he, Graeme? No, he didn't.

by Graeme Edgeler on January 30, 2014
Graeme Edgeler

And if he "won", did he get his book and pictures?

My understanding was that he got some of his pictures after they were referred back to to the Board as some were ruled legal during the second round. 

by Andrew Geddis on January 30, 2014
Andrew Geddis

Two, out of seventy-four. And no book.

by Tim Watkin on January 30, 2014
Tim Watkin

I agree with the principle around free speech and whosy-what'sit, even though I'm really gritting my teeth.

As he said himself, he has the right to be nasty, but no-one has the right to threaten violence. Funny how he's suddenly fired up about the law and fair play and people getting their facts rights – the hypocrisy is as ripe as I've ever heard as it never matters to him when the shoe's on the other foot. But he is, of course, right in principle. (Even thought part of me thinks that you reap what you sow).

Of course the person he's accused of making death threats denies doing that. And his record for accuracy is, well, full of holes. So who knows? Still, I can't remember a nastier piece of writing for a very long time and can't imagine where the meanness of spirit comes from. And yet, he has that right...

by stuart munro on January 30, 2014
stuart munro

It's interesting the way the defence of free speech so often arises in defence of the less than admirable. I can recall (unwisely) defending part of Paul Henry's lifetime contribution of drivel to the edification of the masses, and apart from extending Michael Laws' repertoire of Python quotes it is mighty hard to construct any positive results.

Perhaps the Coaster's response is the best. They shut him up. He had it coming.

by Andrew Geddis on January 30, 2014
Andrew Geddis

Perhaps the Coaster's response is the best. They shut him up. He had it coming.

Did they? I've heard more from whoseit in the last few days than in the last year, due to the media sources I listen to/read giving him access to "tell his story". If he blogs on the internet and I don't read it, it doesn't exist. If Morning Report or Checkpoint are interviewing him, then I pretty much have to listen.

(Yes, yes, I could turn off the radio/change stations, but I'm too busy making coffee and feeding the kids to be exercising that sort of rigid quality control.)

by Ross on January 30, 2014
Ross

I wonder just why Mr Moonen was so worried about anyone opening the envelope and examining the CD contained therein?

Who says he was worried? Besides, if there was a CD in the envelope, there would be no need to worry as one CD looks like every other!

by Ross on January 30, 2014
Ross

One can only assume that there was objectional and obscene material on his CD of young boys.

Hmmm so you - like Cameron Slater who you roundly condemn - have jumped to conclusions based on your own prejudices it seems.

by Greg Dawson on January 30, 2014
Greg Dawson

Quite aside from the content, and the bizarre interrogation at the post shop, it probably wouldn't be advisable to mail loose dvds or cds in an ordinary envelope.

Somewhere over 80% of letters are sorted by machine. There's a flexibility gauge that stops anything that's too rigid going near the sorting machines, but something fragile like a raw dvd without a case might easily get snapped by that mechanism. And on the offchance it makes it into the sorting machine itself, the right angles at ridiculous speeds round a two inch corner would turn the whole damn thing into shrapnel.

Things with parcel postage on them, on the other hand, are always sorted by hand.

by Chris Boys on January 31, 2014
Chris Boys

Perhaps the Coaster's response is the best. They shut him up. He had it coming.

Did they? I've heard more from whoseit in the last few days than in the last year, due to the media sources I listen to/read giving him access to "tell his story". If he blogs on the internet and I don't read it, it doesn't exist. If Morning Report or Checkpoint are interviewing him, then I pretty much have to listen.

(Yes, yes, I could turn off the radio/change stations, but I'm too busy making coffee and feeding the kids to be exercising that sort of rigid quality control.)


I agree, much as I laughed when I heard his site was down, I agree. Best not to turn over rocks and give slimy creatures the light of day. 

I'll give him one thing though, without him media and law commentator's lives would be quieter and less colouful.

 

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