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Society for the Promotion of Community Standards Inc v Film and Literature Board of Review [2005] NZCA 176; [2005] 3 NZLR 403 (30 June 2005)

Court of Appeal of New Zealand

Society for the Promotion of Community Standards Inc v Film and Literature Board of Review [2005] NZCA 176 (30 June 2005); [2005] 3 NZLR 403

Last Updated: 19 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

BETWEEN SOCIETY FOR THE PROMOTION OF COMMUNITY STANDARDS INC
Appellant

AND FILM AND LITERATURE BOARD OF REVIEW
Respondent

Hearing: 15 March 2005

Court: Anderson P, McGrath and Glazebrook JJ

Counsel: P D McKenzie QC for Appellant
J A L Oliver for Respondent

Judgment: 30 June 2005

The appeal is allowed, the Board’s decision of 1 November 2002 is set aside and the matter is remitted to the Board for reconsideration in light of this judgment. There is no award of costs.

REASONS

Anderson P (dissenting in part) [1]

McGrath and Glazebrook JJ [17]

ANDERSON P

[1] On 1 November 2002 the former Literature Board of Review (the Board) made a determination in respect of a film called Visitor Q. The Board held the film is objectionable except if the availability of the publication is limited for the purpose of study in a tertiary media or film studies course or as part of a film festival organised by an incorporated film society, The New Zealand Film Festival Trust or the Incredible Film Festival, and in all cases to persons who have attained the age of 18 years.
[2] The appellant society (the Society) was dissatisfied with the Board’s determination and therefore appealed against it pursuant to s 58(1) of the Film Videos and Publications Classification Act 1993 which allows appeals to the High Court but restricts the appellate jurisdiction to questions of law.
[3] Goddard J dismissed the appeal and the Society appealed further to this Court pursuant to s 70(1) which provides as follows:

70 Appeal against decision of High Court

(1) If any party to the proceedings before the High Court under this Part of this Act is dissatisfied with any final determination of the Court in respect of the appeal as being erroneous in point of law, that party may appeal to the Court of Appeal for the opinion of that Court on that question of law.

[4] The grounds of appeal to this Court are described in the reasons for judgment prepared by Glazebrook J on behalf of the majority of this Court. In view of the extensive consideration of the law and the circumstances of this case contained in those reasons I do not reproduce them here.
[5] The legislature has decreed in s 4(1) that the question whether or not a publication is objectionable is a matter for the expert judgment of the person or body authorised or required, by or pursuant to the Act, to determine it. The Act restricts appeals to questions of law – s 58(1) and s 70(1). It is quite prescriptive as to the contents of the notice of appeal to the High Court, s 59(4) providing as follows:

(4) Every notice of appeal shall specify -

(a) The determination or the part of the determination appealed from; and

(b) The error of law alleged by the appellant; and

(c) The question of law to be resolved; and

(d) The grounds of the appeal, which grounds shall be specified with such reasonable particularity as to give full advice to both the Court and the other parties of the issues involved.

[6] The Society asserted that the Board had failed to apply the statutory criteria for classifications stipulated in s 3 of the Act; that the Board had acted in breach of its jurisdiction under s 23(2) in respect of the Film Festival aspect of its classification; that the Board failed to consider excisions; and that the Board had failed properly to apply the New Zealand Bill of Rights Act 1990.
[7] Except in one crucial respect, which I will come to shortly, I am generally in agreement with the other members of this Court where they reject the assertions and submissions made by the Society. I dwell on those only to comment that the Society’s case relating to excisions is entirely misconceived. The purpose and scope of the legislation is not to invest the Board with bowdlerizing powers. What is envisaged is the possibility of an election by a film distributor to accept the excision of identified portions of a film when such acceptance would result in a less restrictive classification. This is obvious from ss 32 and 33. The provisions are essentially for the benefit of distributors.
[8] I turn now to the points of difference between me and the majority of this Court. The majority considers that the appeal should be allowed on the grounds that the Board failed to comply with s 55(1)(c) which relevantly provides as follows:

55 Decision of Board

(1) After examining any publication submitted to it for review, the Board shall -

...

(c) Give written notice of its decision, and of the reasons for its decision, to -

(i) the applicant for review; and

(ii) the Classification Office; and

...

[9] In coming to its determination that Visitor Q would not be objectionable if viewed by persons 18 years and over and, amongst other things, as part of a Film Festival including the Incredible Film Festival, the Board had found that in a recognised film festival, such as those run in association with an incorporated Film Society, the New Zealand Film Festival Trust, or the Incredible Film Festival, the public is able to be informed of the various meanings attributable to the publication. As Glazebrook J’s reasons recognise, that was a finding of fact which this Court cannot disturb but the majority Judges are troubled that the Board did not identify how it came to that particular view. This omission is considered by Glazebrook and McGrath JJ to constitute a breach of s 55(1)(c). Regrettably I cannot agree with them.
[10] The Board’s obligation pursuant to s 55(1)(c) is to give reasons for its decision but it is not required to explicate every component of its reasoning including its determinations of fact. I find it impossible to accept that an omission to explain a factual finding in the course of a lengthy written decision amounts to a breach of s 55(1)(c). In my view, the reasons given for the decision as a whole amount to adequate compliance with the statutory requirement.
[11] As I have already mentioned, the Board is an expert tribunal and the legislature, in s 4(1) specifically recognises that in its terms, which are as follows:

4 Classification of publications a matter of expert judgment

(1) The question whether or not a publication is objectionable or should in accordance with section 23(2) be given a classification other than objectionable is a matter for the expert judgment of the person or body authorised or required, by or pursuant to this Act, to determine it, and evidence as to, or proof of, any of the matters or particulars that the person or body is required to consider in determining that question is not essential to its determination.

[12] In my view the majority fails to give effect or recognition to the statutory injunction in s 4(1) that evidence as to or proof of any of the matters or particulars that the Board is required to determine is not essential to its determination. The knowledge and experience of a relevant factual context is effectively imputed to the Board, as one would expect in the case of an expert tribunal. It is not permissible to impugn the Board’s finding of fact on the matter in question and I fail to understand how the Board could be considered in breach of an obligation to give reasons for its decision when all it has done is to have omitted identifying the basis for a factual conclusion, evidence or proof of which is, by virtue of s 4(1), not essential to its determination. I think, with respect, the majority’s approach to the issue is in the nature of an impeachment of a factual finding and there is no jurisdiction to do so.
[13] Further, I think it wrong for an appeal to be determined on a basis which was not identified in the notices of appeal to or from the High Court. In the present appeal the grounds upon which the majority would allow the appeal were not specified either before the High Court or this Court.
[14] The Act requires specificity and focus on legal questions. One of the reasons for this must be to ensure that although the courts can determine whether the Board has acted lawfully, they should not usurp the powers and responsibilities of the expert tribunal. Unless issues are clearly identified as questions of law there is a risk that the courts may be drawn into a debate which is in reality a challenge to the substantive merits of the Board’s decision.
[15] In my opinion:

• (a) The Board did not fail to comply with s 55(1)(c);
• (b) The ground on which the majority would allow the appeal is inconsistent with proper recognition of the expert nature of the Board and is contrary to the provisions of s 4(1);
• (c) The ground upon which the majority would allow the appeal was not specified in the notice of appeal to the High Court, contrary to the requirements of s 59(4)(b) and (c) and is not a question of law on which the appeal was brought to this Court for this Court’s opinion.

[16] For these reasons I would dismiss the appeal in its entirety.

MCGRATH AND GLAZEBROOK JJ

(Given by Glazebrook J)

Table of Contents

Para No

Introduction [17]
The legislation [19]
Background facts and procedural history [31]
Summary of Visitor Q [36]
The Incredible Film Festival brochure [38]
The decision of the Classification Office [39]
The Board’s decision [42]
Decision of Goddard J [59]
Issues [70]
Summary of the Society’s submissions [75]
Summary of Board’s submissions [90]
Application of the test in s 3(2) [96]

What does the phrase “tends to” mean? [97]

Application of the test [106]
Application of the test in s 3(3) [111]
Specified purposes [114]

Meaning of specified persons and purposes [115]

Application of the test [123]
Excisions [128]
Conclusion and costs [131]

Introduction

[17] Visitor Q is a Japanese feature film with English subtitles. On 1 November 2002, the Film and Literature Board of Review (the Board) held the film to be objectionable except if viewed for the purpose of study at a tertiary media or film studies course or as part of a film festival (including the Incredible Film Festival) and in all cases restricted to persons 18 years and over. The Society appealed against the Board’s determination. Goddard J dismissed the appeal on 16 January 2004.
[18] The Society now appeals against Goddard J’s decision. The issues for the appeal are:

• (a) Whether Goddard J was in error when she held that the Board correctly applied the test in s 3(2) of the Film Videos and Publications Classification Act 1993 (the FVPC Act);
• (b) Whether she was in error when she held the test in s 3(3) of the FVPC Act had been correctly applied by the Board;
• (c) Whether she was in error in holding that the screening of the film by the Incredible Film Festival properly came within the meaning of the words “specified purposes” in s 23(2)(c)(iii);
• (d) Whether she was correct to hold that there was no error of law in the Board not considering whether excisions should be made from the film in terms of ss 32 and 33 of the FVPC Act.

The legislation

[19] Prior to the introduction of the FVPC Act, censorship in New Zealand was governed by three Acts: the Indecent Publications Act 1963, the Films Act 1983 and the Video Recordings Act 1987. These Acts created separate classification schemes for different types of publications. The Indecent Publications Act covered the classification of books and sound recordings; the Films Act covered the classification of films and any poster relating to those films; and the Video Recordings Act covered the classification of video recordings supplied for a purpose other than exhibition. The various Acts applied different criteria and tests for classification.
[20] In 1987 a Ministerial Committee of Inquiry into Pornography (usually named after the Chairperson of that Committee, Ms Joanne Morris) was established to review existing censorship legislation and recommend whether or not changes to the law were desirable. The terms of reference directed the Committee to examine legislation relating to the criteria for determining whether material should be prohibited or restricted; the types of restrictions that should apply to different types of materials; and the nature of the body or bodies which should be responsible for classifying material.
[21] The FVPC Act was the outcome of the Morris review. It was intended to consolidate and simplify the classification of publications in New Zealand by creating a unified and comprehensive classification scheme for all media. Separate regimes for different types of publications had led to confusion and inconsistency. The old regimes were also struggling to deal with new technology and changing social attitudes.
[22] The relevant provisions of the FVPC Act are set out in the Appendix to this judgment. The Act has recently been amended but the amendments do not apply in this case as Visitor Q had already been classified by the Board – see s 6 of the Films Videos and Publications Classification Amendment Act 2005.
[23] In brief, the regime under the FVPC Act, as it applies to Visitor Q, centres on whether a publication is “objectionable” as defined in s 3 of the Act. Publications must first pass the “subject gateway” in s 3(1). A publication cannot be objectionable unless it deals with one of the matters set out in s 3(1), namely sex, horror, crime, cruelty, or violence, in such a manner that the availability of the publication is likely to be injurious to the public good.
[24] Section 3(2) identifies publications which are deemed to be objectionable. These are publications which promote or support, or tend to promote or support, the exploitation of the young for sexual purposes, various extreme and deviant forms of sexual conduct and acts of torture, extreme violence and cruelty. Mere depiction or description of these activities is not sufficient. The publication must promote or support, or tend to promote or support, the specified activity.
[25] Publications which do not fall under s 3(2) must be classified after a consideration of the factors set out in s 3(3), which provides that particular weight must be given to the manner, extent and degree to which the publication describes, depicts or deals with particular activities, including the depiction of torture, sexual violence, and the exploitation of nudity of children. Section 3(4) must also be considered, which directs the decision maker to consider any merit, value or importance of the publication, as well as the overall effect of the publication as a whole, the impact of the form in which the publication is presented, the likely or intended audience, and the purpose for which the publication is intended to be used.
[26] Section 23(1) provides that the Classification Office must, as soon as practicable after a publication has been submitted or referred to it, examine that publication to determine its classification. We note that s 4 states that whether or not a publication is objectionable is a matter for the expert judgment of the relevant decision-maker. Evidence or proof is not essential to that determination, although any evidence or proof presented must be taken into consideration.
[27] Under s 23(2) there are three possible classifications – unrestricted, objectionable and objectionable except if restricted to persons who have attained a specified age, or to specified persons or classes of persons or if it is used for one or more specified purposes. Even if a publication would otherwise be classified as objectionable it may, under s 23(3), be classified as a restricted publication so that it could be made available for educational, professional, scientific, literary, artistic or technical purposes.
[28] The relationship between s 3(2) and s 23(3) was examined by this Court in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (“Moonen (No 1)”) at [39]. The Court said that a publication may be deemed to be objectionable in terms of s 3(2) but it may nonetheless be classified as a restricted publication under s 23(3) in order that it may be made available to particular persons or classes of persons or for a specified purpose. This Court affirmed that finding in Moonen v Film and Literature Board of Review [2002] 2 NZLR 754 at [31] – [32] (“Moonen (No 2)”). It said there that s 23(3) is directed to the purposes for which the restricted publication may be made available. The yardstick is not whether, as it stands, the publication has artistic merit or whether any ultimate publication will or may have artistic merit. The test is whether the publication should be made available on a restricted basis for the specified purposes (at [34]).
[29] The Classification Office may also request excisions and alterations to films, if it is of the opinion that the film would be classified differently if those excisions or alterations were made. The film distributor need not agree to the excisions, but, if it does not, then it must accept the classification given to the film uncut (ss 32 and 33).
[30] The Board reviews determinations of the Classification Office. Every review is by way of re-examination of the publication without regard to the decision of the Classification Office – see s 52(2). Appeals to the High Court and this Court are only on questions of law – see s 58(1) and s 70(1).

Background facts and procedural history

[31] Visitor Q was imported in 2002 with the intention that it be screened at the Beck’s Incredible Film Festival in Auckland and Wellington in April and May 2002. The Office of Film and Literature Classification (“the Classification Office”) classified the film on 14 March 2002. It determined that Visitor Q was:

Objectionable except if the availability of the publication is limited for the purpose of study in a tertiary media or film studies course or as part of the 2002 Incredible Film Festival or as part of a film festival organised by an incorporated film society, and in all cases to persons who have attained the age of 18 years.

[32] On 4 and 5 April 2002, the Society applied for leave to review the Classification Office’s decision and sought an interim restriction order from the Board. On 11 April 2002, the Board issued an interim restriction order pursuant to s 49 of the FVPC Act. The order prevented the scheduled screenings of the film in New Zealand.
[33] On 1 November 2002, the Board issued its determination in respect of Visitor Q. The Board determined that the film came within s 3(3) of the FVPC Act and rejected the classification of the film under s 3(2). Its classification was essentially the same as the Classification Office’s:

The Board unanimously holds the film/video “Visitor Q” to be objectionable except if the availability of the publication is limited for the purpose of study in a tertiary media or film studies course, or as part of a film festival organised by an incorporated film society, The New Zealand Film Festival Trust, or the Incredible Film Festival, and in all cases to persons who have attained the age of 18 years.

[34] On 2 December 2002, the Society appealed to the High Court alleging errors of law in the Board’s classification. In her judgment of 16 January 2004, now reported as Re Visitor Q [2004] NZAR 329, Goddard J dismissed the appeal and upheld the decision of the Board. The Society now appeals to this Court under s 70 of the FVPC Act. Its appeal was filed on 2 April 2004, having been granted leave to appeal out of time by this Court on 29 March 2004.
[35] Visitor Q has not yet been screened in New Zealand but we understand that it may be listed for screening at a film festival if this appeal is dismissed.

Summary of Visitor Q

[36] In its decision the Board described Visitor Q as being “the savagely satirical story of an extremely dysfunctional middle-class Japanese family consisting of mother, father, son and daughter”. It sets out a precis of the story line as follows:

The son is bullied by his schoolmates, and he in turn abuses his mother. Resorting to hard drugs to alleviate the pain, she prostitutes herself to obtain money to support her habit.

The father is a pitiful character who prefers to observe and record on video his family’s misfortunes (Reality TV style) rather than intervene and try to rectify them. His weak moral standards are shown in the opening scenes where, after momentary vacillations, he agrees to pay his daughter to have sex with him. Afterwards the daughter ridicules her father for his sexual inadequacies.

A stranger, Visitor Q, insinuates himself into this domestic situation after hitting the father on the head with a large rock. Visitor Q proceeds to seduce the mother, causing her to lactate in unfeasibly large amounts.

Angered by taunts of sexual inadequacy by a former mistress, the father attacks this woman, eventually raping her with his finger. In the tussle, which is filmed by a dispassionate Visitor Q, the woman is inadvertently strangled.

While preparing the dead woman’s body for dismemberment and disposal, the father causes it to lactate, which arouses him sexually. He then has sex with the deceased, an activity he seems to enjoy until he realises that the corpse’s bowels have evacuated. Disgusted, he tries to withdraw, but finds that due to rigor mortis he cannot. He is rescued by his wife, who injects him with drugs which enable him to relax.

When the tormentors of the son arrive at the family home they are set upon by the father who, in a direct parody of a Samurai film, kills them with a knife. This causes a change in attitude in the son, who declares that he will dedicate himself to studying for the major examinations due the following year.

After an encounter with Visitor Q, the daughter returns home, wearing a bandage on her head. The family is apparently healed and restored to normality, thanks to Visitor Q.

[37] The Board noted that it is obvious what is occurring in the more extreme scenes but the film is not explicit. It said:

Events either occur out of shot, or are obscured to some extent. Although there is some nudity, pubic regions are deliberately blurred by post-production techniques.

The Incredible Film Festival brochure

[38] The brochure of the 2002 Incredible Film Festival described Visitor Q as follows:

PLEASE NOTE: once this film plays in this festival it will never see the light of day again in New Zealand. That is the stipulation from the Classification Board. This is not one of those usual pleas from Film Festivals that you have to see this film, as it will never get a future cinema release/video etc. Yeah right, buddy. So take heed cinephiles – this film will NEVER be back in any shape or form. Capiche?

So why all the fuss? Apparently this film broke nearly every code in the Classification Act that is there to protect you, the public at large, from offensive material. So why did it get an exclusive festival release seal of approval?

Mainly due to the skill of the director. The man responsible for last years heart-stopper AUDITION and this years hysterically funny THE HAPPINESS OF THE KATAKURI’S. The man is simply incorrigible. His name is Takashi Miike; he comes armed from Japan with razor sharp intellect and a genius for audience manipulation. He takes us further into the abyss than any director working today. And he does so with a sly smile and wink. His latest assault on the senses could be defined as the ultimate dysfunctional family black comedy, except that description doesn’t begin to do justice to the miasma of madness on display. The family unit as cinematic narrative has never been hauled over the coals quite like this.

The family here is having a few problems; the son, a victim of bullying at school takes out his aggression by beating on his mother. She in turn calmly asks for him not to hit her face. In between rounds she escapes into the blissful serenity of heroin. The daughter is a prostitute who sleeps with Dad for some extra pocket money. Dad, the patriarch of this deranged group is a failed television reporter trying to resurrect his career with a documentary about violence in the young. He is obsessed with wanting to film his son being victimised at school. Suddenly, a perfect stranger waltzes into this heavenly mix and proceeds to stir up more sexual chaos and violence. He is Visitor Q, and his profound influence will liberate the family and heal the wounds of a family in close to implosion.

Though the film features such incendiary scenes of necrophilia, murder, graphic sex and extreme lactation, the characters committing these ghastly acts, could be from any household. It’s the situations that they find themselves in, that are exaggerated to DeSadean levels. However, behind the shock value (waaaay behind!) there is a deeply conservative vein running through the film that delivers an extraordinary reflection on the current social status of Japanese life.

You’ll feel bad for doing it but we can guarantee that in between screaming, “Oh my God! Did I just see what I thought I saw!” you’ll be letting out nervous laughter, totally ashamed at yourself for finding any humour amid all the depravity. Don’t feel bad. We did to. [sic]

The decision of the Classification Office

[39] The Classification Office determined that Visitor Q does not fall under s 3(2) of the FVPC Act. It noted that the film depicts sexual activity between a father and a daughter, severe family violence, sexual violence that results in a woman’s accidental death and a man having intercourse with the woman’s corpse. The Classification Office determined, however, that the film does not promote or support or tend to promote or support these activities. The film instead “employs such situations to absurdly magnify the moral corruption of individuals and their relationships”. The Classification Office explained its finding that the film does not fall under s 3(2) by saying that the scenes involving sex are “complex in their meaning in the overall context of the feature”.
[40] The Classification Office also considered the depiction of sexual activity in light of the factors set out in s 3(3). The Classification Office determined that the sex in the film is associated with eroded morality and guilt, representing individual manifestations of a disintegrating society. The Classification Office also considered the depiction of crime in the film, which included depictions of drug use, incest and acts of violence. The Classification Office concluded that these depictions were exaggerated so as to be unrealistic and comical. It made similar conclusions in relation to the depictions of sexual violence and cruelty. The Classification Office concluded that the film is a:

complex, multi-layered satire of society in contemporary Japan... The main characters are extreme caricatures. The action is so exaggerated as to be surreal, making disturbing situations comical.

[41] The Classification Office classified Visitor Q as objectionable and restricted publication by age and for specified purposes. It determined that the film could only be made available for the purpose of study in a tertiary media or film studies course or as part of the 2002 Incredible Film Festival or a film festival organised by an incorporated film society, and in all cases to persons who are 18 years or over.

The Board’s decision

[42] The Society applied for a review of the Classification Office’s determination. The Board determined that Visitor Q passed the sex, crime, cruelty and violence “subject matter gateways” in s 3(1), given that there are numerous depictions and descriptions of gateway matters, such as depictions of sex, including incest; depictions of crime, including murder, rape, assault, drug use and necrophilia; depictions of cruelty, including bullying; and depictions of violence, including family violence and school bullying. The prevalence and manner in which sex, crime, cruelty and violence are dealt with in the film means, in the Board’s view, that there is a “likelihood of injury to the public good” if it is released unrestricted.
[43] The Board then considered whether the film fell under s 3(2). It noted that Visitor Q depicts many of the practices listed in s 3(2). However, the mere description and depiction of a prohibited activity does not necessarily amount to promotion or support of that activity. The description or depiction of the activity must in some way have the effect of promoting or supporting that activity. The Board had earlier recorded the Classification Office’s submission that there were two ways to look at the material presented. It may promote or support or tend to promote or support the activities; or it could “absurdly magnify the moral corruption of individuals and their relationship in Japanese society”.
[44] The Board examined the film in the light of each relevant paragraph of s 3(2). It concluded that none of the depictions came within that subsection. The first relevant paragraph was s 3(2)(a). The question was whether Visitor Q exploits children or young persons for sexual purposes and whether it has the effect of promoting or supporting those activities. The Board found that Visitor Q does not promote or support the exploitation of children or young person for sexual purposes. There was no evidence that the daughter involved in incest with her father was a young person. Section 3(2)(a) was therefore not relevant. The Board said:

[74] ...The age of the daughter who is involved in the incest with her father is not readily ascertainable. Although she possesses a teddy bear this is not seen by the Board to be indicative of her age. The son refers to her as his “big sister”, and there is no evidence that she is attending school. In appearance the daughter is not dissimilar in age to the young reporter. Her body development is not that of a child, and there is therefore no evidence of the daughter being a young person under the age of 18 years. The disturbing part in respect to the daughter is not her age, but the incest.

[45] The second relevant subsection was s 3(2)(b), the use of violence or coercion to compel any person to participate in, or submit to, sexual conduct. The Board held that the depiction of the rape of the reporter encouraged audience sympathy towards the victim. It did not promote or support the activity. The Board said:

[75] ...In the rape of the reporter there is clear evidence of violence being used to compel a person to participate in or submit to sexual conduct. The manner in which the scene is portrayed however, in the Board’s view, encourages audience sympathy towards the victim. The scene is semi-documentary in style which reinforces a theme of the film. The depiction is distant and clinical without the film devices associated with Hollywood gloss or glamour. The film shows a world where people take it for granted that every life incident will be recorded on film. The father appears stuck inside his own documentary and is depicted as mad and obsessive. The Board did not find that the way in which the rape was portrayed, promoted or supported the activity.

[46] It held too that the incident where a microphone is forced up the anus of the interviewer also does not support or promote the activity, but instead encourages sympathy with the victim. The Board said that:

[76] In the incident where the microphone is forced up the anus of the interviewer, the activity is certainly depicted but it is a brief scene involving young criminals. Once again the scene does not encourage audience identification with the perpetrators, but rather sympathy for the victim. In the Board’s view the violent activity of sexual assault on the interviewer is therefore not promoted or supported.

[47] The third relevant paragraph was s 3(2)(c), sexual conduct on the body of a dead person. The Board held that the depiction of necrophilia had a crazy tone and this scene was part of the escalating absurdity which is consistent with the overall tone of the film. In its view, the scene portrayed necrophilia as painful to the perpetrator and is displayed as a cautionary tale. The scene did not, in the Board’s view, promote or support that activity. It said:

[77] In considering s 3(2)(c) there is sexual conduct with or upon a dead body. The Board finds the perpetrator’s comments to be almost an interior monologue of a deranged individual. This scene is part of the escalating absurdity which is the tone of the film. The whole scene has a crazy tone with the interspersing of the necrophilia, with the wife spraying breast milk in unbelievable quantities on the kitchen floor, while Visitor Q shelters from the flood under a plastic umbrella.

[78] The Board does not consider the activity of necrophilia is promoted or supported. It is portrayed as painful to the perpetrator and is displayed as a cautionary tale, even if with considerable absurdity.

[48] The fourth relevant subsection was s 3(2)(d), the use of urine or excrement in association with degrading or dehumanising conduct or sexual conduct. The Board considered that, in the scene where there was a flow of liquid from between the mother’s legs, it was not clear whether the fluid was urine or not. It held, therefore, that it is not possible to hold that the scene promotes or supports or tends to promote or support the use of urine in association with degrading, dehumanising, or sexual conduct. There was excrement involved in the necrophilia scene, but the Board thought that the scene did not promote the use of excrement in sexual activity. Instead, the excrement is shown as an unintended by-product of death. The Board concluded:

[81] There is excrement involved in the necrophilia scene but it is shown as an unintended by-product of death. The perpetrator becomes irritated by the evacuation and verbally insults the corpse. The Board considers the tirade is an indication of the perpetrator’s insanity, noting his comments are addressed to a dead body. The scene does not promote the use of excrement in sexual activity and in fact did quite the reverse.

[49] The fifth relevant subsection was s 3(2)(f). The Board identified several depictions of torture or infliction of extreme violence or cruelty. It concluded, however, that none of the depictions promoted or supported or tended to promote or support that activity. For example, the violence against the mother was, in the Board’s view, “a statement about dissociation and the servility of women”.
[50] The Board then examined each relevant subsection of s 3(3). It noted that Visitor Q does depict, describe or otherwise deal with the matters in s 3(3)(a). Therefore the Board must consider the extent and degree and manner in which the publication deals with these matters. It acknowledged the extensive treatment of acts of sex, violence and cruelty and found that “[t]he extent and degree of acts of serious physical harm and significant cruelty pursuant to s 3(3)(a)(i) is high” and that there were a number of scenes where serious physical harm or significant cruelty was depicted.
[51] The Board also considered ss 3(3)(a)(ii) and (iii). It held that the depiction of sexual violence and sexual coercion constituted a major part of the publication and that the scenes involving the rape, incest and necrophilia were “lengthy and major parts of the film”. The extent and degree of their treatment in the film was significant. The Board also found that the film contained sexual and physical conduct of a degrading and demeaning nature. The rape, necrophilia and incest scenes in its view degrade and demean the victims and perpetrator.
[52] The Society had submitted that ss 3(3)(a)(iii) and 3(3)(c) were relevant because some of the depicted activities degraded women as a whole. The Board rejected that submission. The Board did consider 3(3)(d) to be relevant, because the film depicts many criminal acts. It concluded, however, that none of those criminal acts were promoted or supported.
[53] The Board then examined s 3(4). It described the dominant effect of the publication (s 3(4)(a)) in this way:

[97]...an absurdist iconoclastic film/video which seeks to tear down the sacred cows of Japanese family life It is a Rabelaisian satire which cuts below the veneer of family life. It is intended to appal and repulse, but also to force audiences to consider serious social issues which are not always coherently depicted.

[54] The Board considered the impact of the medium under s 3(4)(b). It noted that the film is a Japanese film sub-titled in English and likely to be of little appeal to any but an art-house audience. The Board considered that it was unlikely that the film would have a wide appeal for general release. The Board said, in terms of s 3(4)(c):

[99] The merit of the publication is that it is an ambitious attempt to describe the disintegration of family. It is a social satire from the theatre of the absurd, which belongs to a tradition of almost intemperate social satire. It has cultural interest as a contribution to the debate on family in Japan.

[55] The Board acknowledged that the film does contain graphic and disturbing content, but concluded, in terms of s 3(4)(e), that it is a social comment for the purposes of entertainment:

[100] “Visitor Q” contains graphic and disturbing content and is aimed at an adult audience and the context in which the film is viewed. It is a social comment for the purposes of entertainment.

[56] The Board held therefore that Visitor Q is objectionable except if the availability of the publication is limited for the purpose of study in a tertiary media or film studies course or as part of a film festival, and in all cases to persons who have attained the age of 18 years. In setting this classification, the Board gave consideration to the New Zealand Bill of Rights Act 1990 (BORA). It noted that, in terms of BORA, the decision it makes as to classification must be the least restrictive available to it. The Board concluded that the limitations it had decided to place on Visitor Q are justified on balance and “its decision can be demonstrably justified in a free and democratic society”.
[57] The Board considered it relevant that the audience at a film festival or in a tertiary media course can be informed of the various meanings attributable to the film. If these various meanings were not made apparent, then it was the Board’s opinion that the depictions of the s 3(1) activities would be likely to be injurious to the public good. It said:

[115] It is the Board’s expert opinion because of the extent and nature of the s 3(1) activities in “Visitor Q” and the way it is presented, it “is likely to be injurious to the public good” if the public is not able to be informed of the various meanings attributable to the publication. This can occur in a recognised film festival such as those run in association with an incorporated film society, The New Zealand Film Festival Trust, or the Incredible Film Festival, or in a tertiary media studies course, where in all cases the participants shall be aged 18 years or over.

[58] With regard to the question of excisions, the Board, earlier in its decision, had noted the Classification Office’s submissions that excisions would reduce the extent and degree and the exaggerated manner in which Visitor Q makes its social commentary thereby changing it into something different from the film maker’s vision and possibly also making it more easily captured by s 3(2). It did not, however, deal explicitly with those submissions in its decision.

Decision of Goddard J

[59] The Society appealed against the Board’s classification on the basis that the Board erred in law in a number of respects.
[60] The first ground of appeal was that the Board had wrongly applied s 3(2). The Society submitted that the Board erred in law by not considering whether Visitor Q did or did not “tend to promote or support” the activity in question. The Society argued that it was particularly important for the Board to have given proper weight to the word “tend” in the case of a publication right at the margins of being classified as objectionable simpliciter. On behalf of the Board, Mr Oliver submitted that the Board had applied the correct legal principles and therefore that the matters of classification according to those principles was a matter for the expert judgment of the Board.
[61] Goddard J accepted that the Board’s decision did not state expressly whether Visitor Q “tends to promote or support” a number of the factors listed in s 3(2) which the Board found to be present in the film. She noted that a counsel of perfection would have seen the Board stating its conclusions in this regard with more precision. However, she concluded that, on an examination of the whole of the Board’s consideration of s 3(2), it is clear that it acted in accordance with the correct legal principles. In relation to two of the listed activities - the use of urine or excrement in association with degrading or dehumanising conduct or sexual conduct (s 3(2)(d)) and acts of torture or the infliction of extreme violence or extreme cruelty (s 3(2)(f)) - the Board stated expressly that the film did not promote or support or tend to promote or support the activity in question. In Goddard J’s view, those conclusions indicated that the Board was aware of the legal principles it was required to apply when it considered the film in the context of s 3(2) of the Act. Goddard J ruled that the first ground of appeal failed.
[62] The second ground of appeal was that the Board wrongly applied s 3(3) of the Act. Goddard J ruled that there was nothing in this ground of appeal. The Board is an expert body empowered with the task of imposing a classification which it considers appropriate. The fact that the Society believes that a more restrictive classification should have been imposed on Visitor Q does not mean that the Board has made an error of law in reaching its classification. Goddard J ruled that the second ground of appeal failed.
[63] The third ground of appeal was that the Board failed properly to apply and consider s 3(4)(a) of the Act, which requires the Board to consider the dominant effect of the publication as a whole. The Society submitted that the Board failed to direct its attention to the effect of the material in question on the mind of the viewer. The Board, in its submission, did no more than state the particular genre and nature of the publication and the intentions of the film-maker.
[64] Goddard J found that, on an examination of the whole of the Board’s decision, it cannot be said that the Board failed to consider the dominant effect of Visitor Q. Goddard J emphasised that a Court on review of a Board’s decision must be careful to recognise that the Board is an expert body. The degree of weight to be accorded to the dominant effect of a publication is an issue for that expert body to determine. Goddard J ruled that the third ground of appeal failed.
[65] The fourth ground of appeal was that the Board had acted in breach of its jurisdiction under s 23(2) in respect of the film festival classification. The Society submitted that a film festival does not come within the circumstances referred to in ss 23(2)(c)(ii) and (iii). It argued that the Incredible Film Festival could not come under the description of “film festival” within the meaning of s 2 of the (repealed) Films Act 1983 and therefore the Board had exceeded its jurisdiction by restricting the viewing of Visitor Q to film festivals.
[66] Goddard J held that any alleged differences between the 1983 and 1993 legislation is not a relevant matter for consideration on an appeal of this nature. Secondly, the Judge accepted that the Board, as an expert body and in the absence of any statutory definition of “specified purposes”, was entitled to classify Visitor Q as it did. She said that any objection the Society may take to the Incredible Film Festival itself is irrelevant; it is not in itself a ground for contending that screening as part of the Festival is not a specified purpose if the Board chooses to so specify. Goddard J ruled that the fourth ground of appeal failed.
[67] The fifth ground of appeal before Goddard J was that the Board had failed properly to consider making excisions from the film and, in the alternative, that it had failed to give reasons for declining to make excisions. Goddard J accepted that a “counsel of perfection” might have suggested that the Board should have included an express statement in its determination that excisions should not be made. However, she did not think that the failure to do so here was an error of law. She emphasised again the expert nature of the Board and cautioned that it “would be inappropriate for the Court to attempt to second guess the Board’s reasoning on the matter”. The Board’s classification, she said, largely “speaks for itself”. She held that this ground of appeal failed.
[68] The sixth ground of appeal was that the Board failed correctly to apply BORA. The Society had submitted that the Board, in applying the five stage process set out in Moonen (No 1) at [17] – [19], erred in law in its approach to the fourth and fifth stages of that process. The Society submitted that the Board considered that the fourth stage of the process required it, for the purpose of classification, to balance the value of freedom of expression against the needs of the persons who are protected by the legislation. The Society submitted that the Board was not required to undergo this balancing exercise when it was determining the way in which to classify Visitor Q. In the Society’s submission, it was not for the Board to consider whether the limit imposed by the FVPC Act was a demonstrably justifiable limitation on the freedom of expression in terms of BORA. It was for the courts to make such an analysis when making declarations of inconsistency. Rather, it was the Board’s role to interpret the FVPC Act in a manner that was the least restrictive of the freedom of expression.
[69] Goddard J concluded that the Board did not err in its approach to BORA or in its application of the five-stage process in Moonen (No 1). She ruled that this ground of appeal must fail.

Issues

[70] The Society put forward most of the same grounds of appeal as in the High Court. It has not, however, pursued in this Court the ground of appeal concerning the alleged wrongful application of BORA. Nor has it pursued in this Court the ground of appeal concerning the correct application of s 3(4)(a) of the FVPC Act.
[71] As indicated above, there are four main issues to be decided. The first issue is whether Goddard J erred in holding that the Board correctly applied s 3(2) of the FVPC Act. In particular, the issue is whether the Board erred in its treatment of the phrase “tends to promote or support” and in not applying that test expressly to each category set out in s 3(2).
[72] The second issue is whether Goddard J erred in holding that the Board had correctly applied s 3(3) of the FVPC Act. In particular, the issue is whether Goddard J was in error for not considering that s 3(3) required the Board, in making its classification decision, to give “particular weight” to the extent and degree to which, and the manner in which, the publication offends the various matters set out in s 3(3).
[73] The third issue is whether Goddard J was in error in holding that the screening of the film by the Incredible Film Festival properly came within the meaning of the words “specified purposes” in s 23(2)(c)(iii).
[74] The fourth issue is whether Goddard J was wrong in holding that the Board had not made an error of law either by failing to consider excisions or by failing to state reasons for its determination that excisions should not be made.

Summary of the Society’s submissions

[75] On the first ground of appeal, Mr McKenzie QC, for the Society, submitted that the much stricter threshold required by the words “or tends to promote or support” was recognised by McGechan and Goddard JJ in News Media Ltd v Film & Literature Board of Review (1997) 4 HRNZ 410. They said at 418:

It is clear s 3(2) creates its own distinct per se regime under which publications are deemed “objectionable” – with no choice in the matter – if the publications promote or support or even tend to promote or support any of the six specified categories. It is a world of its own. If it applies, the more elaborate and general requirements under s 3(1), (3) and (4) do not separately apply.

[76] In the Society’s submission, both Judges interpreted s 3(2) of the FVPC Act to mean that censors have a statutory duty to determine and address whether or not any of the specific activities from the six specified categories listed in that section are depicted in the publication in such a way as to tend to promote or support any of the six specified categories. The Judges’ use of the words “or even” emphasises, in the Society’s submission, that it would be an error of law if a determination considers whether a publication “promotes or supports” a specified activity, but omits consideration of whether it has a tendency to promote or support such activity. In his submission, the Board did not adequately deal with the question of whether the film “tends to promote or support” the relevant activity. It is particularly important, in Mr McKenzie’s submission, for the Board to give proper weight to the word “tends” in a case which was right at the margins of being classified as objectionable simpliciter.
[77] Further, it was submitted that the Board’s categorisation of the two ways of looking at the film was a false antithesis (see at [43] above, although we note that the Board was only recording a Classification Office submission to that effect). A film which portrays in an absurdly magnified way the moral corruption of individuals can still, at the same time, in Mr McKenzie’s submission, have a tendency to promote or support the activities dealt with. Otherwise the censors would find themselves driven to the absurd conclusion that the more “over the top” and exaggerated way in which a film portrays violence, the exploitation of children for sexual purposes, or sado-masochism, the less likely the film is to be caught by s 3(2).
[78] On the second ground of appeal, it was submitted that Goddard J erred in not considering that s 3(3) required the Board, in making its classification decision, to give “particular weight” to the extent and degree to which, and the manner in which, the publication offends the various matters set out in s 3(3). The question at issue here, in Mr McKenzie’s submission, is whether the disjunction between the acknowledged injurious effects of the film and the remedy is of such an extent that it constitutes an error of law – see re Society for the Promotion of Community Standards (No 1) [2002] NZAR 884 at [40] – [43].
[79] On the third ground of appeal, Mr McKenzie submitted that Goddard J erred in her apparent view that there is no limit on the Board’s power to determine (presumably in good faith) what constitutes a specified purpose. It was submitted that the Board does not have an untrammeled power to specify any purpose it chooses and Goddard J was in error in considering that the Board had such a broad power. It was submitted that the intent of the FVPC Act is that there be no special treatment for film festivals. They are now to be subject to the general classification provisions of the Act.
[80] It was accepted that the special purpose which film festivals serve can give rise to a restricted classification to enable screening at such festivals, pursuant to s 23(3). A film could thus be made available to a particular class of persons (ie members of a film festival) “for educational, professional, scientific, literary, artistic or technical purposes”. Those are the “purposes” which, in Mr McKenzie’s submission, can be specified by the Classification Office or the Board as justifying the relaxing of what would otherwise be an objectionable classification so as to permit a “restricted” classification for those purposes. Even if not limited to the purposes stated in s 23(3), it was submitted that s 23(3) indicates the nature of the purposes which are required, namely educational, professional, scientific, literary, artistic or technical purposes.
[81] If, contrary to the preceding submissions, it were held that the words “specified purposes” in s 23(2)(c)(iii) are not subject to any guidance derived from s 23(3), it was nonetheless submitted that screening at the Incredible Film Festival does not properly come within the meaning of a “specified class of persons” or “use for a specified purpose” and the Judge was in error in considering that it was.
[82] The organiser of the Incredible Film Festival is Mr Anthony Timpson, an individual. In the Society’s submission, Mr Timpson cannot, however, be treated as being the “specified person” for whose availability the publication is restricted under s 23(2)(c). Availability is not granted for Mr Timpson personally to view the film but for persons who will view the film at the film festival organised by him.
[83] In Mr McKenzie’s submission, the Incredible Film Festival, in its advertising, does not direct its advertising to any special class or section of the public, eg Japanese special interest groups or followers of art films. On the contrary, in the Society’s submission, the festival pitches its marketing strategy towards those with an appetite for sex, horror, crime, cruelty and violence and, indeed, in its material says that the attraction of this film is that it “broke nearly every code in the Classification Act that is there to protect you, the public at large, from offensive material.”
[84] Mr McKenzie noted that the festival director’s statement said that the purpose of the festival is to bring a demographically and psychographically disparate audience together to witness populist foreign cinema that otherwise would not be seen by New Zealand audiences. In the Society’s submission, the persons drawn to the Incredible Film Festival have no attribute in common other than their being members of the public and this can scarcely be viewed as a “specified class” for whose benefit the Board may make a restricted classification.
[85] In addition, the Society pointed out that the special provisions relating to film festivals, which were contained in the previous Films Act 1983 s 13(3), were not repeated in the FVPC Act. Accordingly, it was submitted that it was not sufficient (as Goddard J appeared to consider) for the Board simply to restrict availability to a specified body such as the Incredible Film Festival or a film society. Rather, restriction was required to be framed in terms of the publication being “used for one or more specified purposes”. The purpose of study in a tertiary, media or film studies course was named, and that, it is submitted, was acceptable. No purpose, however, is stated in relation to use by Incredible Film Society or other film festival.
[86] It was recognised that the Board, when dealing with the age restriction at paragraph [115] of its decision, considered that a “recognised film festival” would provide for the public “to be informed of the various meanings attributable to the publication”. This observation, however, was not, in Mr McKenzie’s submission, directed to any specified purpose in relation to the screening of the film at the Incredible Film Festival. The film was being screened to those members of the public who were able to and wished to attend the film festival, without there being any special or specified purpose attached to the screening or availability of the film.
[87] On the final ground of appeal, Mr McKenzie pointed out that the Board in its determination referred to submissions from the Society and the Classification Office in relation to the making of excisions. However, when the Board proceeded to give its decision, it failed altogether to deal with the question whether excisions should or should not be made. In the Society’s submission, this was a serious omission on the part of the Board and constitutes an error of law as the Board failed to deal with an issue which was significant and relevant to its decision.
[88] Having reached the opinion that the film would be injurious to the public, the Board was, in Mr McKenzie’s submission, required to consider whether it would classify the film differently if any specified part or parts of the film were excised from the film. In the Society’s submission, the requirement to consider excisions is mandatory. Section 32 provides that the Board “shall, before making a final determination in respect of the classification of the film, follow the procedure prescribed by section 33”.
[89] In the alternative, it was submitted that the Board’s failure to give reasons for rejecting the submissions relating to excisions constituted a failure to give reasons on a material matter and thus is in breach of s 55(1)(c) – see Re Vixen Digital Ltd [2003] NZAR 418. The nature of the material before the Board, and the express submissions which were made to it by the Classification Office and the Society in relation to excisions, were matters of such significance that the Board was required by s 55(1)(c) to give its reasons for considering that it was not, in the present case, desirable or necessary to make excisions. The Board failed to do this and its failure, in Mr McKenzie’s submission, constitutes a further error of law.

Summary of the Board’s submissions

[90] The Board was represented in this appeal not in order to defend its decision but to assist the Court.
[91] In relation to the first ground of appeal, Mr Oliver submitted that, in making its decision, the Board clearly followed the process set out in Moonen (No 1). It analysed the film in respect of all relevant categories in s 3(2) and concluded that the film did not promote or support or tend to promote or support the various activities depicted. In Mr Oliver’s submission, it was clear from an examination of the whole of the Board’s decision that it clearly applied the correct legal principles and its expert judgment in classifying the film.
[92] In relation to the second ground of appeal, Mr Oliver submitted that the Board considered all matters it had to consider under s 3(3). He questioned what else the Board was required to do in respect of s 3(3). The Board clearly found that the film fell within s 3(3)(a) and (c) and was thus objectionable. It then applied s 23(2) to classify the film and, in particular, to impose age and viewing restrictions. The Board is an expert body. The fact that the Society believes that a more restrictive classification should have been imposed does not, in Mr Oliver’s submission, mean that the Board has made an error of law in reaching its conclusion.
[93] In relation to the third ground of appeal, Mr Oliver submitted that the Board acted in accordance with s 23(2) in reaching its classification. Although it was conceded that it was unlikely that the Incredible Film Festival would have qualified under the Films Act 1983, the repealed provisions are, in Mr Oliver’s submission, irrelevant and should be put aside. The provisions of the FVPC Act are the relevant provisions to be applied. Nothing in the FVPC Act provides guidance on the nature of the “specified purposes”. In Mr Oliver’s submission, this means that, provided that the Board considers all the necessary and relevant aspects of the matter, the definition of those purposes is for it.
[94] In relation to the fourth ground of appeal, Mr Oliver submitted that the Board is required to follow the procedure set out in s 33 if, and only if, the Board forms the opinion envisaged by s 32. Mr Oliver submitted that, given the classification that was made, it can reasonably be assumed that the Board did not form the opinion that s 32 envisages, so it was unnecessary for the Board to follow the procedure in s 33. It is clear that the question of possible excisions was before the Board as it heard and recorded submissions from both the Society and the Classification Office on the question. He submitted that it was unnecessary for the Board to say expressly in the course of its decision that it had considered and rejected the making of excisions - the classification that was made speaks for itself.
[95] In relation to the issue of whether or not the Board failed to give reasons for its decision, Mr Oliver rejected the Society’s reliance on Re Vixen Digital. He submitted that that case was entirely different. In that case, Mr Oliver submitted, the Board had reached the opinion that excisions should be made, but Durie J found that the reasons given for making the excisions were insufficient. This was different from the situation here, where the Board had already made a restricted classification and clearly did not reach the state of mind contemplated by s 32. Therefore, the Board was not required to initiate the s 33 procedure and to give reasons for so doing.

Application of the test in s 3(2)

[96] The first issue in the appeal is whether the Board properly considered whether the film “tends to promote or support” the matters specified in s 3(2)(a), (b), (c) and (d).

What does the phrase “tends to” mean?

[97] Section 3 of the FVPC Act differed from the provisions proposed by the Morris Committee in a number of respects. Relevantly for present purposes, the Morris Committee used the phrase “advocates or condones” in its proposed legislative provisions dealing with publications requiring prohibition and publications presumed to require prohibition. More importantly, it did not use the phrase “tends to”, either in its report or in its proposed legislation. The phrase “tends to” was, however, part of s 3 from the first version of the FVPC Bill. There is no discussion in the Parliamentary debates or in the Select Committee report on the origin or the intended meaning of the phrase. Neither was the phrase part of the previous classification legislation.
[98] The word “tendency” was, however, part of the common law test of indecency or obscenity. The test at common law was whether the publication had a tendency to deprave and corrupt those whose minds are open to immoral influences - R v Hicklin (1868) LR 3 QB 360 at 371. This test was applied in Clarkson v McCarthy [1917] NZHC 73; [1917] NZLR 624 and Sumpter v Stevenson [1939] NZLR 446. In Clarkson at 626, Cooper J broke down the Hicklin test into three elements: first, the nature of the publication; secondly, the nature, circumstances and purpose of the publication and its artistic merit; and thirdly, whether the defendant had a mischievous or immoral tendency in exhibiting or distributing the publication. The Hicklin test remained the sole test in New Zealand until the passing of the Indecent Publications Act 1963. We do not consider that Parliament intended the test to revert to the common law test which is different in conception from the test in s 3 of the FVPC Act. Thus, in our view, the cases on the common law test do not provide any assistance in interpreting the phrase “tends to” in s 3(2) of the FVPC Act.
[99] The meaning of the phrase “tends to” in the context of the FVPC Act has only been subject to limited judicial consideration. Some guidance on the meaning of the test may perhaps be derived from Moonen (No 2) at [22]. There, the Court responded to the appellant taking issue with the Board’s finding that the book “would” have the effect of encouraging those who are interested in engaging in sexual activities with children by commenting that:

to have found that it would have that effect, the board must have concluded that it could have that effect. As well, it must be taken, as the board itself noted, to come within the statutory test of “[tend to] promote or support”.

[100] In our view, the use of the phrase “tends to” in the s 3 test was designed to provide a sliding scale so as to ensure that it was not necessary for the classifying authority to come to the view that the publication’s effect was definitely to promote or support the specified activities. The standard is therefore not absolute but something less. See, in another context, the remarks of Neazor J in R v Dadzie HC AK CRI-2003-404-000385 10 February 2004.
[101] Dictionary and thesaurus definitions may be useful to define exactly where the line should be drawn. Black’s Law Dictionary (7ed 1999) at 1479 defines “tend” as “[t]o be disposed toward (something)” or “[t]o be directed or have a tendency to (an end, object, or purpose)”. The Oxford English Dictionary (2ed Volume XVII 1989) at 766 defines “tend” as including “[t]o have a disposition to advance, go on, come finally, or attain to (unto, towards) some point in time, degree, quality, state, or other non-material category” or “[t]o have a specified result, if allowed to act; to lead or conduce to some state or condition” or “[t]o have a tendency, to be apt or inclined”. The Collins Paperback Thesaurus In A-to-Z Form (2ed 1990) at 627 suggests synonyms for “tend” include “be apt, be biased, be disposed, be inclined, be liable, be likely, gravitate, have a leaning”.
[102] If these various synonyms were substituted for “tend” in the “promotes or supports” test, the threshold could vary depending on the synonym used. Some may be seen as imposing a higher threshold than others. For example, “have a leaning” may impose a lower threshold than “be likely”. Moonen (No 1) at [27] – [28] would require the adoption of the meaning which impinges the least on freedom of expression. In addition, if it is marginal whether or not a publication is objectionable, then freedom of expression must be favoured over a finding of objectionability.
[103] In accordance with the Moonen (No 1) principles, the standard should therefore not be too low. We consider that the most suitable synonym for the phrase “tends to” is “be likely”. Of course, the term “likely” has itself various possible meanings, which would also impose different thresholds – see for example the discussion of the term in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union and Others [1979] FCA 85; (1979) 27 ALR 367 at 375. Bowen CJ said that the word “likely” has various shades of meaning:

It may mean “probable” in the sense of “more probable then not” – “more than a 50 percent chance”. It may mean “material risk” as seen by a reasonable man “such as might happen”. It may mean “ some possibility” – more than a remote or bare chance. Or, it may mean that the conduct engaged in is inherently of such a character that it would ordinarily cause the effect specified.

[104] We do not consider that it is helpful in this context where expert judgment is engaged to set a standard which requires an assessment of mathematical probabilities. A requirement that the publication is inherently of such a character that it would ordinarily cause the effect specified is in our view the equivalent of requiring an absolute standard and thus would not give the words “tends to” their proper effect. On the other hand, a test of there being “some possibility” is too remote from the absolute standard to fit in with the Moonen (No 1) requirements.
[105] We consider that the proximity to the absolute standard required when assessing whether a publication tends to promote or support the specified activity may differ depending on the context. The exact shade of meaning required in a particular case is thus, in our view, a matter for the expert classifying body to assess. However, a publication should not be seen as tending to promote or support a specified activity unless there is a real or material or substantial risk, as assessed by the expert classifying body, that it will do so. See, in another context, the definitions of “likely” set out in R v Piri [1987] 1 NZLR 66 at 79 and R v Meynell [2004] 1 NZLR 507 at 517.

Application of the test

[106] The Board, in relation to the scene where there was a possible use of urine in association with sexual conduct and those scenes dealing with the infliction of extreme violence or cruelty, specifically referred to the “tends to” test – see at [48] and [49] above. In the Society’s submission, the Board’s failure to refer to that test in relation to the other s 3(2) activities constituted an error of law. We do not agree. As we indicated above, the “tends to” phrase was designed to provide a sliding scale with the absolute at one end of definitely promoting or supporting a specified activity with a publication still being objectionable if it is further down the scale but still likely to do so. Where the Board considered that there was some possibility that the film may promote or support the specified activities, such as was the case with the urine and the extreme violence, it considered whether the threshold of “tends to” support or promote the activity was met and concluded that it was not.
[107] The reason the Board did not consider specifically the “tends to” test in relation to other activities portrayed in the film was simply because it did not arise. In our view, a finding that a publication does not promote or support the specified activity is a finding at the other end of the scale and it necessarily precludes the publication supporting or promoting the specified activity or being likely to do so, findings necessarily further up the scale. Something that does not support or promote something cannot, as a matter of ordinary English usage, either support or promote something or be likely to do so. As can be seen from [45] to [47] above, with regard to s 3(2)(b) and (c), the finding of the Board was that the film did not promote or support the specified activity.
[108] The same reasoning applies with even more force to a finding that the effect of a publication is the reverse of promotion or support which was the Board’s finding about the use of excrement – see [48] above. We accept Mr McKenzie’s submission that it is possible for a publication, intended to vilify the particular activity, in fact to have the opposite effect. It is, however, the effect that is assessed by the classifying authority and not the intention of those making or possessing the publication – see Moonen (No 1) at [29]. There is no suggestion that the Board was not aware of this in its classification exercise. We also accept Mr McKenzie’s submission that a publication which portrays in an absurdly magnified way the moral corruption of individuals (see at [43] above) can still tend to promote or support a particular activity. The finding of the Board, as the expert body, however, was that, in this case, it did not do so.
[109] With regard to s 3(2)(a), the Board’s finding was that sexual activity with children or young persons was not depicted as there was no evidence in the film that the daughter was a child or young person. While description or depiction of a prohibited activity do not of themselves necessarily amount to promotion of or support for that activity (see Moonen (No 1) at [29]), it is difficult to see how a publication can promote or support an activity or be likely to do so if that activity is not depicted or described, either explicitly or impliedly.
[110] This ground of appeal fails.

Application of the test in s 3(3)

[111] The next issue is whether the Board properly applied s 3(3). The Society’s argument is that the s 3(3) factors cannot have been given particular weight because the Board could not have reached the decision it did had it done so.
[112] The Society is asking us in effect to second guess the Board’s decision. This is not an appropriate role for the courts to undertake. The right of appeal is only on a question of law and the Board, in terms of s 4 of the FVPC Act, is the expert body entrusted with classification decisions. The Board clearly considered the s 3(3) factors – see [50] to [52] above. Its decision cannot be classed as irrational, particularly given the BORA guarantees of freedom of speech and the principles of interpretation set out by this Court in Moonen (No 1).
[113] It follows that Goddard J was correct to dismiss this ground of appeal.

Specified purposes

[114] The next issue is whether screening by the Incredible Film Festival can come within s 23(2)(c) (ii) or (iii).

Meaning of specified persons and purposes

[115] Under the former classification scheme, the Indecent Publications Tribunal, the Video Recordings Authority and the Film Censors could give a publication a restrictive classification. This allowed the classification bodies to restrict a work’s availability to a class or classes of people (identified by features other than the age of the class members) or for use for specified purposes (s 10(b) of the Indecent Publications Act, s 18(a) of the Video Recordings Act and s 15(1)(b) of the Films Act). The Film Censors could also restrict a work’s availability to a specified occasion (s 15(1)(b)(iii) of the Films Act). We have not been able to find any authority on the meaning of those terms under the antecedent legislation.
[116] In our view, the terms “specified persons or classes of persons” and “specified purposes” as used in the FVPC Act, are wide ones. We agree with Goddard J’s view that the legislation leaves the Board free to determine, with regard to any publication, the persons that the publication should be restricted to and the purposes the publication can be used for. We do not accept the Society’s submission that the purposes stated in s 23(3) either limit, or provide “guidance” as to, the interpretation of “specified purposes” in s 23(2). Section 23(3) is designed primarily to set out the purposes for which a publication, which is automatically deemed objectionable under s 3(2), can be made available. It explicitly states that it does not limit the power of the Classification Office to classify a publication as a restricted publication and thus clearly does not serve to limit the purposes that can be specified under s 23(2)(c).
[117] The Society also submitted that screening at a film festival such as the Incredible Film Festival cannot be a specified purpose under s 23(2)(c)(iii) because there is no special provision dealing with film festivals as there was under the Films Act. Section 13(3) of the Films Act enabled the Film Censors to take into account an intention that a film was to be exhibited only at a film festival or to a film society. It is common ground, between the Board and the Society at least, that the Incredible Film Festival would not have come within the definition of film festival, as defined in s 2 of the Films Act:

Film festival means a programme of films of artistic, social, or cultural merit, or that portray technical aspects of film-making, being a programme that is intended to be exhibited within a period not exceeding 4 weeks, with no 1 film in the programme being exhibited on more than 4 occasions:

[118] The FVPC Act does not contain a corresponding provision. In our view, the fact that there is no special mention of film festivals in the FVPC Act does not mean that that film festivals cannot come within the “specified purposes” or “specified persons or classes of persons” provisions in s 23(2)(c). To exclude them would put an artificial limit on what are wide terms. We thus consider that screening at a particular film festival can be use for a “specified purpose”. Film festivals are after all run for a limited time period only and each film is generally screened a limited number of times. This interpretation is also more consistent with BORA as it is a lesser restriction on the right to freedom of expression. We note too that Burrows and Cheer, in Media Law in New Zealand (4ed 1999) at 337-338, suggest that film society audiences can constitute a “specified class of persons”. We agree with their view. It may be, as the Society submitted, that film society audiences are a subset of the general public but that will be the case for all persons and groups specified.
[119] Arguably, this interpretation is also consistent with the antecedent legislation. The Films Act did not contain a special restrictive classification category for film festivals. This means that the Film Censors would have had to have given such a film a restricted classification under the general criteria for restricted classifications – that is, restrict the film’s availability to a class of people, or for a specified purpose or to a specified occasion. Therefore, under the antecedent legislation, a film festival must have been regarded as coming within one at least of those terms.
[120] In our view, too, an intention that a film be shown at a film festival is a factor that can also be taken into account when applying the factors in s 3(4), which are directed at the effect and context of the publication. The fact that a film is intended to be shown at a film festival may be relevant under s 3(4)(d) (the persons or classes of persons, or age groups of the persons to whom the publication is intended or is likely to be made available), under s 3(4)(e) (the purpose for which the publication is intended to be used) or under s 3(4)(f) (any other relevant circumstances relating to the intended or likely use of the publication).
[121] Any exercise of the power to classify which stipulates circumstances in which an otherwise objectionable film may be made available under s 23(2)(c) must, however, be consistent with the scheme and purpose of the FVPC Act. If the Office or the Board in a particular case has come to the view that the unrestricted availability of a film is likely to be injurious to the public good, then, in order to place a restricted classification on the film under s 23(2)(c), the Office or the Board must be satisfied, in its expert opinion, that there are distinguishing circumstances in any particular case which are capable of restricting availability to an extent which sufficiently limits the injury to the public good. The circumstances may include restrictions on the likely composition of audiences, the number of showings, the steps that will be taken to educate the audience or other factors that, in the expert opinion of the Office or the Board, may limit injury to the public good. Finally, the Office or the Board must ensure that its classification accords with the principles set out in Moonen (No 1), which reflect BORA.
[122] We recognise that, in coming to the view that restriction to viewing by film festival audiences is possible under the FVPC Act, we may be seen to be differing from the recommendations of the Morris Committee. That Committee recommended that it be made clear in the new legislation that, if a film would be prohibited under the general classification rules, then it should not be able to be made available under a specialised restricted classification to film societies or film festivals - see Pornography: Report of the Ministerial Committee of Inquiry into Pornography (1989), (at 116-117). We do not, however, consider that the FVPC Act, as enacted, does make this clear. Merely removing the references to film festivals from the legislation did not achieve this aim. The Morris Committee view was, however, based on the proposition that there is nothing that distinguishes film festival or film society members from the rest of the public. Views can legitimately differ on whether the restrictions on availability to audiences at a particular film festival are sufficient to remove the element of injury to the public good to a sufficient extent so that a film may be classified under s 23(2)(c). In any particular case, the Office and the Board, as expert bodies, are best suited to assess that issue.

Application of the test

[123] In this case, the Board was of the view that Visitor Q would be injurious to the public good if the public were not able to be informed of the various meanings attributable to the publication – see at [57] above. As a finding of fact, which is not able to be disturbed by this Court, the Board held that attendees can be informed of the various meanings attributable to the publication in festivals run by an incorporated film society, by the New Zealand Film Festival Trust and by the Incredible Film Festival. On the basis of this factual finding, we consider that, in terms of the principles discussed at [116] to [121] above, it could have been open to the Board to allow exhibition of the film to those attendees. There is, however, a requirement under s 55(1)(c) for the Board to give reasons for its decision. Reasons do not need to be elaborate but must not be so economical as to fail to explain the Board’s decision on all the main issues raised by the particular publication. We do not consider that the reasons given by the Board in this case reached that standard.
[124] We are not aware of any evidence of any educative material provided by the Incredible Film Festival apart from the brochure – see at [38] above. It is likely therefore that the Board was referring to that brochure and that it considered that this provided sufficient educational material to counter the injurious effects it found would otherwise exist. The Board did not, however, say so in its decision. Nor did it provide any reasons why it came to the conclusion that attendees at the Incredible Film Festival (or indeed other film festivals) would be “informed of the various meanings attributable to the publication”. We consider that it should have done so, given that the factual finding that attendees would be so informed was central to the classification. This is especially the case as there is room for differing views on the contents of the Incredible Film Festival brochure. We note that it is also not clear to us that the brochure would necessarily be read by the attendees at the festival. With respect to Anderson P, we do not consider that s 4(1) constrains the requirement to give reasons on matters central to the Board’s decision, particularly in cases where evidence relating to those matters was actually before the Board.
[125] More importantly, the brochure provided was for the 2002 Incredible Film Festival. That festival passed without showing Visitor Q. Because reasons were not given for the crucial factual finding set out above, the Board’s decision does not make it clear what the content of any educational material should be for future festivals, whether run by the Incredible Film Festival organisers or by other bodies. We consider that it should have done and that the decision is flawed because it did not. There was no requirement set by the Board for any educational material to accompany any showing of the film, even though, in the absence of that material, the Board considered the film to be likely to be injurious to the public good.
[126] Without reasons being given for what we view as a critical finding of fact, we cannot assess whether the Board has properly construed its role, as set out at [116] - [121] above. Without conditions being imposed to ensure the protection of the public, as outlined above at [125], the decision risked Visitor Q being shown without the requisite educational material, and thus being shown in circumstances where the Board has determined it is likely to be injurious to the public good. We are conscious that these matters were not ones specifically raised by the Society. We, however, consider them sufficiently related to this ground of appeal and to the decision in the High Court for us to be able properly to deal with them.
[127] Accordingly, we would set aside the Board’s decision and refer the matter back to the Board for reconsideration in the light of this judgment.

Excisions

[128] The classification that the Board gave to Visitor Q was the classification that it considered to be the correct one without any excisions. In order for s 32 of the FVPC Act to apply, the Board must come to the view that the film could be given a different (and, as a matter of logic, a less restrictive) classification if excisions are made. If it does not form that view, then there is no necessity to consider s 33.
[129] There is no suggestion in this case that the Board did form such a view. Indeed, a lesser classification was not argued for by the Society – quite the reverse. Neither, as we understand it, were excisions urged upon the Board by the distributor in order that a lesser classification could be given. There is no power for the Board to order excisions and so, without the distributor’s cooperation in making the excisions, no lesser classification could, in any event, have been given.
[130] We therefore see no reason to disturb Goddard J’s decision on this point.

Conclusion and costs

[131] The appeal is allowed in the respects set out at [124] - [126]. The decision of the Board is set aside and the matter remitted to the Board for reconsideration in light of those paragraphs.
[132] Neither of the parties to this appeal sought costs and none are awarded.

Solicitors:
Bryson & Co, Raumati Beach for Appellant
Crown Law Office, Wellington for Respondent

APPENDIX

Extracts from the Films Videos and Publications Classification Act 1993.

3 Meaning of “objectionable”

(1) For the purposes of this Act, a publication is objectionable if it describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good.

(2) A publication shall be deemed to be objectionable for the purposes of this Act if the publication promotes or supports, or tends to promote or support,—

(a) The exploitation of children, or young persons, or both, for sexual purposes; or

(b) The use of violence or coercion to compel any person to participate in, or submit to, sexual conduct; or

(c) Sexual conduct with or upon the body of a dead person; or

(d) The use of urine or excrement in association with degrading or dehumanising conduct or sexual conduct; or

(e) Bestiality; or

(f) Acts of torture or the infliction of extreme violence or extreme cruelty.

(3) In determining, for the purposes of this Act, whether or not any publication (other than a publication to which subsection (2) of this section applies) is objectionable or should be given a classification other than objectionable, particular weight shall be given to the extent and degree to which, and the manner in which, the publication—

(a) Describes, depicts, or otherwise deals with—

(i) Acts of torture, the infliction of serious physical harm, or acts of significant cruelty:

(ii) Sexual violence or sexual coercion, or violence or coercion in association with sexual conduct:

(iii) Other sexual or physical conduct of a degrading or dehumanising or demeaning nature:

(iv) Sexual conduct with or by children, or young persons, or both:

(v) Physical conduct in which sexual satisfaction is derived from inflicting or suffering cruelty or pain:

(b) Exploits the nudity of children, or young persons, or both:

(c) Degrades or dehumanises or demeans any person:

(d) Promotes or encourages criminal acts or acts of terrorism:

(e) Represents (whether directly or by implication) that members of any particular class of the public are inherently inferior to other members of the public by reason of any characteristic of members of that class, being a characteristic that is a prohibited ground of discrimination specified in section 21(1) of the Human Rights Act 1993.

(4) In determining, for the purposes of this Act, whether or not any publication (other than a publication to which subsection (2) of this section applies) is objectionable or should be given a classification other than objectionable, the following matters shall also be considered:

(a) The dominant effect of the publication as a whole:

(b) The impact of the medium in which the publication is presented:

(c) The character of the publication, including any merit, value, or importance that the publication has in relation to literary, artistic, social, cultural, educational, scientific, or other matters:

(d) The persons, classes of persons, or age groups of the persons to whom the publication is intended or is likely to be made available:

(e) The purpose for which the publication is intended to be used:

(f) Any other relevant circumstances relating to the intended or likely use of the publication.

4 Whether publication objectionable a matter of expert judgment

(1) The question whether or not a publication is objectionable is a matter for the expert judgment of the person or body authorised or required, by or pursuant to this Act, to determine it, and evidence as to, or proof of, any of the matters or particulars that the person or body is required to consider in determining that question is not essential to its determination.

(2) Without limiting subsection (1) of this section, where evidence as to, or proof of, any such matters or particulars is available to the body or person concerned, that body or person shall take that evidence or proof into consideration.

23 Examination and classification

(1) As soon as practicable after a publication has been submitted or referred to the Classification Office under this Act, the Classification Office shall examine the publication to determine the classification of the publication.

(2) After examining a publication, and having taken into account the matters referred to in section 3 of this Act, the Classification Office shall classify the publication as—

(a) Unrestricted; or

(b) Objectionable; or

(c) Objectionable except in any one or more of the following circumstances:

(i) If the availability of the publication is restricted to persons who have attained a specified age:

(ii) If the availability of the publication is restricted to specified persons or classes of persons:

(iii) If the publication is used for one or more specified purposes.

(3) Without limiting the power of the Classification Office to classify a publication as a restricted publication, a publication that would otherwise be classified as objectionable may be classified as a restricted publication in order that the publication may be made available to particular persons or classes of persons for educational, professional, scientific, literary, artistic, or technical purposes.

32 Excisions from and alterations to films

Notwithstanding anything in section 23 of this Act, if, after examining a film under this Part of this Act (other than a film referred to it pursuant to section 29(1) or section 41(3) of this Act), the Classification Office is of the opinion that it would classify the film differently according to whether any specified part or parts of the film are excised from or left in the film, it shall, before making a final determination in respect of the classification of the film, follow the procedure prescribed by section 33 of this Act.

33 Procedure for making excisions and alterations

(1) In any case to which section 32 of this Act applies, the Classification Office shall notify the authorised distributor of the film of—

(a) The classification that the Classification Office would give to the film if any specified part or parts of the film were excised or altered to the satisfaction of the Classification Office; and

(b) The classification that the Classification Office would give to the film if the specified part or parts of the film were not excised or altered to the satisfaction of the Classification Office.

(2) If the authorised distributor of the film agrees to each such excision or alteration to the satisfaction of the Classification Office, the Classification Office shall classify that film in accordance with section 23 of this Act as if each of the required excisions and alterations were made.

(3) If the authorised distributor of the film refuses or fails, within 20 working days after the date of the Classification Office's notice, or within such further period as the Classification Office may allow, to agree to any such alteration or excision to the satisfaction of the Classification Office, the Classification Office shall classify the film in accordance with section 23 of this Act.

(4) If the authorised distributor of the film agrees to some but not all of the excisions or alterations, the Classification Office shall classify the film in accordance with section 23 of this Act as if the excisions and alterations agreed to by the authorised distributor of the film had been made.

(5) In determining whether to exercise, or in exercising, the Classification Office's powers under this section in respect of any film, the Classification Office may consider the effect that any such excision or alteration may have on the continuity of the film or on its overall effect.

52 Conduct of reviews

(1) Every review under this Part of this Act shall be conducted as soon as practicable.

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

(3) The Board shall examine any publication submitted to it under section 47 of this Act to determine the classification of the publication.

(4) In determining the classification of any publication, the Board shall take into account the matters referred to in section 3 of this Act.

55 Decision of Board

(1) After examining any publication submitted to it for review, the Board shall -

(c) Give written notice of its decision, and the reasons for its decision, to –

• (i) The applicant for review; and
• (ii) The Classification Office; and
• (iii) the Court where s 29 or s 41(3) apply.

58 Appeal against decision of Board on question of law

(1) Where the Board makes any determination in respect of any publication referred to it under section 41(3) of this Act, or submitted to it under section 47 of this Act, any of the persons specified in subsection (2) of this section who are dissatisfied with that determination as being erroneous in point of law may appeal to the High Court on that question of law.

70 Appeal against decision of High Court

(1) If any party to the proceedings before the High Court under this Part of this Act is dissatisfied with any final determination of the Court in respect of the appeal as being erroneous in point of law, that party may appeal to the Court of Appeal for the opinion of that Court on that question of law.