The reasons given for imposing an order stopping anyone from being able to access Into the River do not justify it. The order is wrong.

Yesterday I wrote this post on the decision by the President of the Film and Literature Board of Review, Dr Don Mathieson, to issue an "interim restriction order" in respect of the young adult novel, Into the River. The effect of that order is to stop anyone from selling, lending or giving the book to anyone else, until the Board gets around to deciding what classification it thinks the book should have.

In my post I said:

So, yeah - this interim restriction order decision looks at least a bit questionable. And perhaps if it ever got before a court, the court would overturn it.

Having now seen the reasons given by Dr Mathieson for issuing the order, I'm going to go further in my assessment. It should not have been given on the basis outlined. It is a mistake.

First of all, there's something completely missing from Dr Mathieson's analysis. The New Zealand Bill of Rights Act 1990 (NZBORA). It isn't mentioned at all, despite the fact that Dr Mathieson is bound by it when issuing his order.

And what is more, there is absolutely no attempt to balance the possible harms caused by allowing Into the River to be freely available against the extraordinary restrictions that this order places on everybody's freedom of expression. In fact, the potential effect of this order on freedom of expression is not considered in any way. The fact that the order means, for instance, that if I as a 40-something-year-old go down to the Hocken Library to borrow the book to see what all the fuss is about, the librarian there is legally obligated to refuse to lend it to me.

Is that right? Are there potential harms that justify imposing that limit? Is the extent of the limit proportionate to the objective of avoiding those harms? No idea - because the decision to grant the order is completely silent on the matter.

This absence of analysis in itself makes Dr Mathieson's order unlawful. Because the failure to consider the NZBORA implications is fatal to the process by which the order was made. Full stop. End of story.

Furthermore, the reasons that Dr Mathieson does give for his order simply do not establish the necessary grounds for issuing it. Section 49(1) says that "the President may, if satisfied that it is in the public interest to do so, make such an order." So that's the necessary test to meet.

Why, then, does Dr Mathieson think that it was in the public interest do make the order?

1: The classification of Into the River under the Act is a matter of wide public concern,as evidenced by the volume of submissions to the Classification Office and published comments.

Of course, this makes the mistake of equating "the public is interested" with "the public interest". These are not the same thing at all.

2: The decision of the Classification Office would radically alter the decision of the Board of Review.

That may be true. But how does such a "radical alteration" mean that it is in the public interest to stop everyone in New Zealand from being able to lend, borrow or buy this book? Also, any reclassification by the Office of a publication previously classified by the Board will "radically alter" the Board's decision. So is Dr Mathieson now saying that these interim orders will become standard procedure whenever the Office changes the Board's classification?

3: It is particularly appropriate that the Board should have an opportunity to consider the publication afresh without being inhibited in any way by any distribution occurring between now and the date of the Board’s decision.

Why?

It is true that as a result of the Office's decision, a bunch of people (those under 14) can now get hold of Into the River and read it. But why must this be prevented in order to avoid "inhibiting in any way" the Board's consideration? After all, the book did not receive a R14 classification from the Board until the end of 2013, meaning that it was freely available to everyone for months prior to that decision without "inhibiting" it.  So why is it "particularly appropriate" to stop under-14s from getting and reading the book for a couple of months now?

4: It is debatable, and a matter of independent public interest, whether the Chief Censor acted lawfully under section 42(3)(b) of the Act in deciding that “special circumstances” exist.

This is none of Dr Mathieson's, or the Board of Review's, business! In essence, Dr Mathieson is saying that he thinks the Office of Classification might have made a mistake by agreeing to reclassify Into the River within 3 years of its original classification being issued (something that can only happen in "special circumstances").

However, the Board of Review is not there to act as a court to judge the rightness/wrongness of everything that the Office does. The right of review is restricted to:

[anyone] dissatisfied with any decision of the Classification Office with respect to the classification of any publication shall be entitled, on application, to have the publication reviewed by the Board.

The review process is then restricted as follows:

Every review under this Part shall be by way of re-examination of the publication by the Board without regard to the decision of the Classification Office.

In a nutshell, the Board of Review can look to see whether the Office's classification decision on a particular publication is the right one - should it be unrestricted, R14, R18 or objectionable - but not whether the Office's decision to make a reclassification decision is correct. So whatever qualms Dr Mathieson may personally harbour about the Office's decision to reclassify the book, they aren't relevant to his decision on whether to issue an interim publication order "in the public interest".

5: It is highly arguable whether the Classification Office has reached the correct conclusion on the application for reconsideration before it.

OK - so that means the Office may have got it wrong. In which case, some people (under 14 year olds) may get hold of Into the River and read it when they shouldn't. But by the same token, the Office may have got it right. In which case, those people are now being denied access to a book they should get to read. Along with everyone else in New Zealand!!!!

That's the nub of the matter. Is it in the public interest to deny everyone in New Zealand access to a book in order to safeguard some 12-or-13-year-olds who maybe shouldn't be allowed to see it? If so, why? We just aren't told.

6: The correct classification of Into the River under the Act will operate as a semi-precedent, and will exert a significant influence upon other decisions portraying teenage sex and drug-taking.

Right! So the Board of Review needs to get its decision on appeal right. Why, however, should nobody be able to access the book until they do so?

 

Reading through all of the above, I can't help but think that Dr Mathieson has confused "the public interest" with "the Board of Review's interest in not having its authority undermined by the Classifications Office". Which are not the same things. At all.

Comments (15)

by Rich on September 08, 2015
Rich

Does that mean that if a bookshop were to persist in selling Into the River, they'd have a defence if prosecuted that the "interim restriction order" was improper?

by Andrew Geddis on September 08, 2015
Andrew Geddis

@Rich,

I wouldn't risk it. For one thing, even if there is a defence, the bookseller might be called on to use it in court. And that means lawyers and money.

The better approach is to get this order lifted. I know that Graeme Edgeler and others are seeking to have this done.

by Rich on September 08, 2015
Rich

Thank you Andrew. Fortunately, I don't own a bookshop so it was a hypothetical question..

by Stewart Hawkins on September 08, 2015
Stewart Hawkins

I look forward to Dr Mathieson's review of the Koran. History in the making.

by Stephen Parkes on September 09, 2015
Stephen Parkes

Hi, Steve here from Dim-Post. I've only skimmed over your argument here so will get back to you on that. In the meantime, I have an interim (no pun intended) question. 

The better approach is to get this order lifted. I know that Graeme Edgeler and others are seeking to have this done.

Why? Surely it's already going to be lifted once the Board meets, given that even Dr Mathieson doesn't actually think that people over 18 shouldn't be able to read the book. He only applied the interim order as a stop-gap measure until they could meet, didn't he? Or am I wrong in assuming that he couldn't have issued a similar order that only applied to those under 18?

by Graeme Edgeler on September 09, 2015
Graeme Edgeler

Why? Surely it's already going to be lifted once the Board meets, given that even Dr Mathieson doesn't actually think that people over 18 shouldn't be able to read the book.

Because I want to read the book now, and everyone agrees that saying I cannot read it is an unreasonable limit on my freedom of expression.

Because the decision is wrong, for the reasons Andrew outlines, and it is generally better that wrong decisions do not stand.

Because, give the particular wrongness of this decision, it is useful and important to draw a line in the stand, and make clear that these sorts of decisions will not be let to stand without opposition, even if only for a month.

by Andrew Geddis on September 09, 2015
Andrew Geddis

Why? Surely it's already going to be lifted once the Board meets, given that even Dr Mathieson doesn't actually think that people over 18 shouldn't be able to read the book.

The order is unlawful. Why should an unlawful order be permitted to stand, even if only "until the Board meets" ... whenever that may be?

by mudfish on September 10, 2015
mudfish

Because the effects are trivial and temporary. Is a month wait for a decision really an unreasonable limit on Graeme's freedom of absorption/expression? What's the hurry? 

Because the reasons for asking for the order to be overturned are technicalities unrelated to the reason for the order.

Because there's worse bad law out there somewhere (clutching at straws...)?

Thank you for standing up for the letter of the law, and presumably getting Dr Mathieson to think twice before going down the same route in the future (maybe an email might have done the same?), but I'm afraid I shrug my shoulders on this one.

 

by mudfish on September 10, 2015
mudfish

Oh but I like the debate nonetheless...

by Anne Smith on September 10, 2015
Anne Smith

Your story mentioned the Bill of Rights.  It seems to me that the United Nations Convention on the Rights of the Child is also relevant to this unfortunate ban.  Article 13 states that children (defined as 0 to 18) "have the right of freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print...." Also Article 12 says that children have the right to be consulted on matters that affect them. It strikes me that this whole debate has lacked reference to the voice of the child. Any age restriction would be highly discriminatory, in my view.

by Andrew Geddis on September 10, 2015
Andrew Geddis

Anne,

That's a really interesting point! The Convention certainly is something that the Board ought to take into consideration when considering the appeal against the Office's reclassification decision. And a failure to do so would be a basis for an appeal to the High Court.

by Darryl Nightingale on September 10, 2015
Darryl Nightingale

Food for thought there indeed, Andrew Geddis. But I am not sure that I agree with your conclusion that "the public interest" and "the Board of Review's interest in not having its authority undermined by the Classifications Office" are NOT the same thing.

How effective can such bodies be in protecting the public interest when they can be mired in a limbo of perpetual ping-pong?

The Review Board's temporary ban will probably end the stalemate, possibly by one party or another challenging it in the High Court, an eventuality which the Films, Videos, and Publications Classification Act 1993 not only allows, but is designed to enable.

Meanwhile, what in practice does an R14 restriction mean?

It means only that 14+ will have to show ID at public libraries to borrow it and at shops to buy it, and that it will not be possible for schools to assign it for reading to 13-.


The chief judge of the New Zealand Post Children's Book Awards spoke of the book as being "aimed at the top end of the young adult market [ages 15+]" and noted that it "both engaged and respected older readers", which he especially cherished because "most [NZ] books [are] aimed nearer the junior fiction boundary".

Therefore, the 14+ restrictions sits nicely below what the NZPCBA's chief judge regards as the book's intended age group, and presumably nearer to what he calls "the junior fiction boundary".

In practice, anybody 13- will be able to get hold of a copy, with the aid of either their friends or adult caregivers.

So, what's the big deal with the Review Board's R14 classification? Was Auckland Libraries challenge to that classification in the public interest? And did the Office act in the public interest when it overturned the Board's ruling?

by Brett Cooper on September 10, 2015
Brett Cooper

I think it's rich that Family First are taking away the rights of a Family to chose if their children can read this book or not.  Making the book R would be a fail and should be at worst an RP  so patients can still make the choice to restrict the book to their children on not.  I would rather see an M rating like 50 Shades of Gray have (which was popularised by the movie).

RP14 would keep most bandwagons happy but would not be the right choice IMHO.  

by Andrew Geddis on September 11, 2015
Andrew Geddis

@Darryl,

The problem with R14 is not really that it stops 12 or 13 years olds reading the book - as you say, they aren't really the intended audience anyway. It is that it has the effect of making it particularly hard for the intended audience, 14-year-olds-and-older, to access the book - it isn't on open shelves in public libraries and will only be issued if ID is produced, etc. So the Censor examined this (unforeseen at the time the ban was implemented) consequence, weighed it against the "harm" of some under-14's reading the content, and determined that the effect on freedom of expression of those who should be able to read the book outweighed that harm.

If the Censor was mistaken about her legal authority to carry out this reclassification (i.e. whether the evidence of the effect of the R14 classification amounts to "extraordinary circumstances", as per the Act), then that's a question for the High Court to answer. Courts determine whether or not public agencies are acting within the law. The job of the Board is simply to look at the Censor's new balancing decision and decide whether it thinks it was correct - does the book still deserve an R14 rating (even if this has the effect of stopping lots of over 14's reading it)? And the job of the President of the Board is simply to consider if allowing under-14's to read the book up until the Board decides what the classification should be is so terrible that it justifies stopping every person in NZ from being able to buy, sell, lend or share it with anyone else.

The Board (and the President's) role is very limited, and shouldn't be equated with a court. And just because the Board (or, rather, the President) thinks the Censor may have overstepped her legal authority does not justify it (or, rather, him) doing likewise.

One last point. You say:

In practice, anybody 13- will be able to get hold of a copy, with the aid of either their friends or adult caregivers.

The effect of the R14 notice was that anyone who "in practice" did this commits an offence that can be punished by a fine of $3000 ... and if they know of the R14 classification, get them jailed for up to 3 months.

by Rich on September 11, 2015
Rich

A good piece from Michael Putlack in the Herald.

Really, the whole censorship apparatus needs to be downsized and it's very positive that Chris Finlayson favours a review.

The current system conflates three areas:

1. child abuse and other images involving criminality, which are rightly illegal just about anywhere.

2. when young people can access content, which is a matter for voluntary regulation in many jurisdictions and should be here

3. preventing adults from looking at text, drawings or images of other consenting adults, which IMHO should not be a matter for the law (and is not in the US and many European states)

 

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