It is now legal for anyone in New Zealand to get hold of and read a copy of Into the River. This happy ending to a sorry saga demonstrates that it perhaps is time for a change of leadership at the Film and Literature Board of Review.

Caution: contains sweary stuff ... you may need to wash your eyes afterwards.

In the eyes of this upper-middle class, not-quite-very-old, liberal legal academic, the Film and Literature Board of Review has brought a bit of sanity back to the world by deciding that a book openly showing young men (and soon-to-be young men) how bad choices can create bad outcomes ought to be freely available for them to read. Also, mere exposure to the words "fuck", "cunt" and "shit" - as are reported, for instance, in The Guardian newspaper on a relatively routine basis - will not inevitably rot young minds.

The opinion of the Board's majority, quite simply, gets it:

... we read the book as a morality tale warning against the dangers of the various choices which Te Arepa makes and as a study of the challenges that can arise from the alienation he experiences on leaving the community of his childhood and being dropped in the very different cultural environment of an Auckland boys boarding school. The book deals with the challenges which young people face, and the decisions they must make, growing up in a contemporary urban environment.

While the text contains some raw and honest depictions of what (some) young people's life is like - as opposed to a sanitized, Enid Blytonesque fantasy of how young people ought to behave - the Board understands why these are there.

The book does not sensationalise, glamorise or otherwise favourably portray the sex, violence, cruelty, demeaning behaviour and other undesirable conduct which it describes.

The main characters in the book all experience negative outcomes from their involvement in these behaviours, both by way of being arrested or expelled, and also by being left isolated, unsatisfied, empty and otherwise emotionally and psychologically unhappy.

Because of this, the majority of the Board do not consider the book normalises or promotes the behaviours it describes.

And the Board not only recognises the intentions behind writing young adult literature that pushes the boundaries, it also understands that young adults should not be coddled protectively behind walls that protect their assumed "innocence". They are capable of rising to challenges, if set for them.

The book is intended to be, and has been recognised as, a serious work of young adult literature. It raises important social issues about bullying, underage sex, drug taking, underage drinking and other undesirable behaviours. It is intended to be, and is, challenging and thought provoking to a young readership

So thanks to the four members of the Board of Review who said all this. I agree with you.

However.

Having followed the furore over Into the River reasonably closely, and now reading his dissenting views on the classification decision, my opinion is that the Board's President, Dr Don Mathieson, ought not to be retained in that role when his term expires next year. I say this for three reasons.

[Update: much of the following is rendered irrelevant by a minor detail identified by Graeme Edgeler (who else?) in the comment section below:

Replacement isn't an open question. Members of the board can be appointed for a three year term, and may be re-appointed once. Dr Mathieson has had his two terms. He cannot be re-appointed to a further term as president (or ordinary member of the Board) until at least three years have passed.

So - anyway - read on.]

The first is to do with the role of the Board of Review and Dr Mathieson's quite disparate view of the merits of Into the River. The Board of Review acts as a check on the classification decisions taken by the full-time, professional censor's office (or "Office of Film and Literature Classification", to give it its official title). It consists of representatives of the community acting as a "quasi-judicial" body - not as a court, but still reaching legal conclusions on the proper application of the Films, Videos, and Publications Classification Act 1993 to individual publications.

Those conclusions then have potentially very serious consequences. Once the Board says some publication should have some form of classification, then you can be fined thousands of dollars or jailed for a reasonable length of time for dealing with the publication in breach of that classification.  

Given the nature of this job (deciding how the law ought to apply to particular publications) and its consequences (deciding who gets to read a given book), you'd expect the Board to display a fairly united and consistent approach to classification. After all, you really want its decisions to cluster around a common point - to reflect what the assumed "reasonable, informed Kiwi" would think on the matter (after carefully applying the relevant legal tests, of course). There may be some degree of difference on some points between the Board members, given that the legal tests involved are a bit vague and that individual assessment of artistic value and merit will differ. Reasonable people, after all, can and will disagree on details.

However, such unavoidable differences just shouldn't extend to four of the Board of Review members deciding a book ought to be able to be read by any and all New Zealanders and one member thinking it ought to be illegal to allow any person under 18 to get hold of it. That is the equivalent of four of the Board saying a DVD of The Outsiders ought to be rated "PG" while one thinks it should be "R18" because Johnny killing the Soc "normalises teen violence". 

That discrepancy in views is so great that it indicates something is seriously wrong with the mode of analysis of one of the sides to the issue. And maybe Dr Mathieson's views speak to a kindler, gentler time that has passed us by. But I think that they have been shown to be radically out of step with the New Zealand of 2015.

The second reason that I think Dr Mathieson ought not to continue in his role from next year is that he made a "captain's call" to (temporarily) ban anyone from selling, lending or giving Into the River to anyone else. He thought that this ban was necessary in "the public interest".

I argued at the time that this decision was plain unlawful. Dr Mathieson had the opportunity to revisit the (temporary) ban, but chose not to lift it. Again, that was his call, and his alone.

Now it has turned out to be totally the wrong decision. The Board has decided that every person in New Zealand ought to have the right to access Into the River. That was what the Classification Office also said in its earlier reclassification decision. So Dr Mathieson twice decided to impose a blanket prohibition on all New Zealanders accessing this book in order to (somehow) protect some under-14-year-olds who, it turns out, didn't need any protecting anyway.

It was a bad and unnecessary decision, which he alone is responsible for. That ought to matter.

The final reason is that, reading through the various documents relating to this saga, I can't help but conclude that Dr Mathieson was unduly piqued by the Classification Office's decision to overturn the Board's original classification decision. Let me explain the background.

The Board of Review made its original classification decision in late 2013, deciding that Into the River should have an R-14 classification. In early 2015, the Classification Office agreed to revisit this decision when the Auckland Library convinced it that the decision's (unintended) consequences for readers 14-and-over constituted "special circumstances" permitting a re-examination. The Classification Office then lifted the R-14 classification from the book.

Now, the decision of the Classification Office to revisit the matter in this fashion may or may not have been correct in law. But whether it was right or not simply is no business of the Board of Review, as the majority decision correctly notes:

[T]he Board has no power to review the decision by the Classification Office to accept the application for reconsideration inside the normal three year period. Section 42 of the Act allows applications for reconsideration to be made and under section 42(3) it is for the Chief Censor to determine whether there are, or are not, special circumstances justifying reconsideration. There is no statutory provision allowing such decisions to be reviewed by the Board and accordingly this majority opinion does not express any opinion regarding that decision.

To reiterate, that gets things exactly right. Anyone who has a problem with the Chief Censor's decision to revisit Into the River under section 42(3) - who thinks the power has been unlawfully exercised - needs to go off to the High Court and plead their case. Because all the Board of Review does is look at the Classification Office's resulting classification decision and decide whether or not it is correct (applying the statute).

However, Dr Mathieson simply would not let this matter go. In his dissenting views, he spends several paragraphs applying some generic (and, with respect, somewhat dated) public law reasoning to justify his belief that the Classification Office erred in its reclassification decision. But what he doesn't ever say is why it is any of his business whether or not the Classification Office acted lawfully.

You see, the Board of Review is not an appeals court that sits above the Classification Office in order to correct any and all legal wrongs that this agency may commit. It has one specific and very narrow purpose - to consider the Classification Office's classification decisions and check that these are correct (in terms of how the Board of Review thinks the legislation applies to the particular publication at hand). The role of the Office and Board overlap only to this limited degree.

But Dr Mathieson appears to consider his (or, rather, the Board's) role to be that of the Classification Office's "boss", in the sense that the Board gets to tell the Office how to undertake all of its duties. And if the Classification Office misuses its statutory power (in his eyes) to undo one of the Board's decisions, then it's up to him (or, rather, the Board) to firmly put it back in its box.

This fundamentally misunderstands what the Board's job, and his job as the Board's President, is under the legislation. And that simply isn't something that someone in his role ought to do.

So, with the greatest of respect for Dr Mathieson and the various services that he has performed with distinction over the years, I think that the Into the River saga indicates that his time at the head of the Film and Literature Board of Review ought to come to a natural end next year when his term of office expires.

Comments (5)

by Ross on October 15, 2015
Ross

Given the nature of this job and its consequences (deciding who gets to read a given book), you'd expect the Board to display a fairly united and consistent approach to classification

So when the Chief Justice disagrees with her learned colleagues sitting on the Supreme Court, and she has done so several times, she really isn't fit to be in the job? You'd have to agree the consequences of the SC getting it wrong are probably more serious than the  Censor's office doing so.

by Ross on October 15, 2015
Ross

Then of course there is the Court of Appeal and Justice Ministry which has recently seen its decisions re Pora, Lundy and Bain overturned, each time by the Privy Council in England. These were fairly important cases seeing as each accused had been found guilty of murder and had spent many years in prison - in Pora's case about 20 years. How is it that one of NZ's highest courts and or the Justice Ministry could get these cases so horribly wrong? Should those involved with these injustices face consequences?

by Andrew Geddis on October 15, 2015
Andrew Geddis

@Ross,

I don't accept your analogy - the Board of Review is only a quasi judicial body. Further, as I say, it has only one job ... to make only one sort of decision. If a member of the Board is making that decision in a markedly different way to her or his colleagues then I think that calls into question whether they are doing it properly. And note - R18 is the second highest form of classification possible ... Dr Mathieson saw this book as being as bad as something can be, short of getting banned altogether. The other four members thought it posed no real risk to anyone. That looks to me to be such a divide that someone just isn't correctly performing their task.

Finally, the Board of Studies deliberately has limited terms of office (3 years). It isn't a job for life (or, rather, until age 70), like a judge's. So replacement is (and deliberately has been made) an open question in a way that isn't the case for the courts.

by Graeme Edgeler on October 15, 2015
Graeme Edgeler

So replacement is (and deliberately has been made) an open question in a way that isn't the case for the courts.

Replacement isn't an open question. Members of the board can be appointed for a three year term, and may be re-appointed once. Dr Mathieson has had his two terms. He cannot be re-appointed to a further term as president (or ordinary member of the Board) until at least three years have passed.

94 Term of office

(1) Subject to section 96, every member of the Board may be appointed for any period not exceeding 3 years, and may be reappointed for 1 further period not exceeding 3 years.

(2) Nothing in subsection (1) prevents the appointment under section 93 of any person who has previously held office under that section, but no such person shall be so appointed unless at least 3 years have elapsed since that person last held office under that section.

by Andrew Geddis on October 15, 2015
Andrew Geddis

Thanks!

Update now inserted into the text.

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