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Attorney-General v Film and Literature Board of Review [2023] NZHC 319 (27 February 2023)

Last Updated: 17 November 2023

JUDGMENT OF ISAC J

[Appeal against Board’s classification decision]

THE ATTORNEY-GENERAL OF NEW ZEALAND v FILM AND LITERATURE BOARD OF REVIEW [2023] NZHC 319 [27 February 2023]

Background

• [1] In late 2019, a Police investigation codenamed Operation Cobra revealed three text message conversations involving discussions about sexual activity with underage girls. Two of the conversations were, ostensibly, between a 12-year-old girl and an adult male. The other conversation involved a man purporting to offer his 12-year-old daughter to another man for sex, and attempts to procure sexual contact.

• [2] In fact the girls were all fictional. Unknown to the other participant in each exchange, the text conversations were instigated by another man, K, who was pretending to be a young girl or the father of one. His motives for doing so are unclear. Regardless, there is nothing on the face of the texts to suggest that the texters were all adult men or that the girls were fictional. Indeed, it appears the other men were taken in by K’s pretence.

• [3] The four men were charged with making objectionable publications under s 123(1)(a) of the Films, Videos, and Publications Classification Act 1993 (the Act). The text conversations were referred to the Classification Office, which determined that they should be classified as:¹

Objectionable except if the availability of the publication is restricted to persons who have attained 18 years of age.

• [4] Following an application for review by the Attorney-General, the Film and Literature Board of Review (the Board) reached the same conclusion.²

• [5] The Attorney-General now appeals the Board’s decision. Three grounds of appeal are advanced:

(a) the Board misinterpreted the Court of Appeal’s decisions in the Moonen

cases;

1. Office of Film and Literature Classification Report of Findings to the District Court at Christchurch (OFLC ref 2100229.001-003, 14 September 2021).
2. Decision of the Film and Literature Board of Review (OFLC ref 2100229.001-003) [Board’s decision].

(b) the resulting R18 classification does not prevent the harm identified by the Board; and

(c) the Board’s conclusions under the s 3(3) analysis are inconsistent with its conclusions under s 3(2).

• [6] Of these three grounds, the first was the primary focus of the appeal. The Attorney-General considers that the publications promote or support the sexual exploitation of children and should have been deemed to be objectionable under s 3(2) of the Act.

• [7] There is no doubt that the content of the text conversations is disturbing. However, the issue for me is not whether the exchanges were acceptable or hold any form of value, but whether the Board reached its expert decision free from an error of law.

Relevant legislative framework

• [8] Classification is a matter for the expert judgment of the Classification Office or, in this case, the Board.³ Under s 23 of the Act, publications can be classified as unrestricted, objectionable, or objectionable except in one or more specified circumstances (including where the availability of the publication is restricted to people over the age of 18).⁴

• [9] The definition of “publication” is broad and there is no doubt that it encompasses text messages.⁵ In addition to things such as films, books and sound recordings, publication is defined as including:⁶

3. Films, Videos and Publications Classification Act 1993, s 4(1). See also Moonen v Film and Literature Board of Review (No 2) [2002] NZCA 69; [2002] 2 NZLR 754 (CA) [Moonen (No 2)] at [25]; and Snell v New Zealand Customs Service [2021] NZHC 1235 at [11].

⁴ Films, Videos and Publications Classification Act 1993, s 23(2).

5. In R v Spark [2009] NZCA 345; [2009] 8 HRNZ 975 (CA), the defendant engaged in explicit sexualised conversations with young girls through internet chat programs and saved the content of each conversation into a Word document. Those records formed the basis of 10 charges of making an objectionable publication. Leave to appeal to the Supreme Court was refused: Spark v R [2009] NZSC 130, [2010] 1 NZLR 599.

⁶ Films, Videos and Publications Classification Act 1993, s 2.

(d) a thing (including, but not limited to, a disc, or an electronic or computer file) on which is recorded or stored information that, by the use of a computer or other electronic device, is capable of being reproduced or shown as 1 or more (or a combination of 1 or more) images, representations, signs, statements, sounds, or words

• [10] The controlling concept within the Act is the notion of an “objectionable” publication. The term is defined in s 3 and given its importance to the appeal I set it out in full:

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.

(1A) Without limiting subsection (1), a publication deals with a matter such as sex for the purposes of that subsection if—

(a) the publication is or contains 1 or more visual images of 1 or more children or young persons who are nude or partially nude; and

(b) those 1 or more visual images are, alone, or together with any other contents of the publication, reasonably capable of being regarded as sexual in nature.

(1B) Subsection (1A) is for the avoidance of doubt.

(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) applies)

is objectionable or should in accordance with section 23(2) 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) applies) is objectionable or should in accordance with section 23(2) 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.

• [11] As Tipping J observed in Moonen (No 1), and Cooke J noted in Snell v New Zealand Customs Service, s 3 involves a number of related elements.⁷ The first is that a publication is objectionable under s 3(1) only if it is likely to be injurious to the public good. Second, injury to the public good is linked to the potential availability of the publication; the section does not require that the publications are in fact made public, or in fact cause injury to the public good.⁸

• [12] It also follows from the drafting of s 3 that there are two pathways through which a publication may become objectionable under subs 3(1). The first is under s 3(2), where a publication is deemed to be objectionable if it “promotes or supports” prohibited subject-matter, including the sexual exploitation of children. In Snell v New Zealand Customs Service, Cooke J observed that publications falling into this category are self-evidently likely to be injurious to the public good and there is no need for further inquiry.⁹

• [13] The second pathway is under s 3(3) and (4), and involves a broader assessment. The ultimate test remains that under s 3(1), namely whether the availability of the publication is likely to be injurious to the public good. In making that determination, particular weight must be given to the matters in s 3(3), including an assessment of the extent and degree to which they feature. Consideration must also be given to the mandatory factors in s 3(4). As Cooke J explained:¹⁰

So this involves the Board engaging in a holistic assessment of the publication, its content, and the extent and degree to which it describes, depicts or otherwise deals with the matters set out. That involves a consideration of all the relevant facts and circumstances which more squarely engages the Board’s experience and expertise.

7. Moonen v Film v Literature Board of Review (No 1) [1999] NZCA 329; [2000] 2 NZLR 9 CA) [Moonen (No 1)] at [4]; and Snell v New Zealand Customs Service, above n 3, at [22].

⁸ R v Spark, above n 5, at [23] and [25].

9. Snell v New Zealand Customs Service, above n 3, at [40]. Cooke J also observed that deemed objectionability under s 3(2) involves a higher threshold than “normal” objectionability under s 3(3) and (4). His Honour considered that s 3(2) does not therefore seem to contemplate “marginal cases”, which require the more holistic assessment of the Board under s 3(1), (3) and (4).

¹⁰ At [39].

• [14] Even where a publication is found to be objectionable under s 3, the Board in exercising its discretion under s 23 may nevertheless determine that a restricted classification is appropriate.

The decision under appeal

• [15] The Board began its decision by observing that the publications under review were the electronic text messages existing on the parties’ cellphones, rather than the tables compiling the messages provided by the Crown for the purpose of classification.¹¹ That approach is logical given it was the text messages themselves (not the tables produced by the Crown) that the defendants are charged with “making”. The Board also noted that it would treat each text conversation in its entirety as a publication, rather than assess each text message separately.¹²

• [16] The Board then turned to consider whether the publications were deemed to be objectionable under the s 3(2) pathway as promoting or supporting the exploitation of children for sexual purposes.¹³ It concluded that the publications do not promote underage sex, but instead “simply directly depict men engaging in nefarious activity”:¹⁴

There is nothing in the publications which set out to encourage such activity and, indeed, the Board agrees with counsel for Mr M that one reading of the publications could invoke a sense of condemnation. What the publications do is portray the defendants engaging in the sexual exploitation of children. In much the same way, the frank portrayal on TV of real-life crime unfolding does not amount to promotion or support of the crime.

The Board is mindful of the high threshold for section 3(2) to be invoked and does not consider that high threshold to be met here by any of the three publications. While undoubtedly abhorrent, there is nothing in the sexual conversations depicted which promotes or supports the exploitation of children or young people for sexual purposes; rather, the conversations merely discuss sexual conduct with a fictional young person.

¹¹ Board’s decision, above n 2, at [19]–[21]. The tables included additional information beyond the content of the texts, such as the date and time of the messages, the name of the sender and recipient of each message, and the cell towers at which the messages were received.

¹² At [26].

¹³ Having satisfied itself that all three publications passed the s 3(1) gateway test in that they deal with matters of sex and crime (namely sex with an underage girl and, in one case, incest).

¹⁴ At [45]–[46] (footnote omitted).

• [17] While the Board referred to a “fictional young person”, it noted that “there is nothing on the face of the publications themselves which enabled the Board to categorically decide the young person in the conversations was fictional”.¹⁵ In other words, a reader of the text exchanges without knowledge of the age and gender of the participants would likely understand two of the conversations to be real exchanges between 12-year-old girls and adult males.

• [18] The Board then moved on to consider if the publications were objectionable under the second pathway in s 3(3) and (4). Although noting that the conversations deal with sexual conduct with or by children or young persons, the Board reiterated its earlier view that they do not promote underage sex “but simply directly depict men engaging in conversations about sexual activity with a fictitious 12-year-old girl”.¹⁶

• [19] Applying the factors in s 3(4), the Board considered:¹⁷

(a) “[t]he dominant effect of each [of] the publications as a whole is a series of text messages between adult males purporting to be discussions of a sexual nature involving a 12-year-old girl”;

(b) the messages may be easily copied, shared and disseminated;

(c) the publications have no real merit, value or importance, although conceivably may contain educative merit or scientific curiosity;

(d) the conversations were likely not intended to be made available to anyone else but the participants (and were unlikely to be of interest to anyone else); and

(e) the messages were not offered voluntarily by the participants.

¹⁵ At [46], fn 21.

¹⁶ At [48].

¹⁷ At [50].

• [20] The Board concluded that all three publications should receive an R18 classification.¹⁸ It considered that children and young persons should not view the conversations due to some of the graphic comments and because they may be unable to ascertain the context of the publications and the fact the conversations are between adult men. In terms of the adult population, the Board considered the potential benefits and harms of the publications were “ambiguous”.¹⁹ On one hand, unrestricted availability of the publications would likely be injurious to the public in two ways:

First, the publications are harmful to the four defendants, because they endorse and enable criminal activity, namely the sexual exploitation of children. Second, there is a risk that the publications will be shared with the public at large, in whatever form, and that sharing may potentially serve to endorse the activity (as well as the opposite of causing repugnance at the activity).

• [21] On the other hand, however, the Board observed that the publications could have some educational value, for instance, as part of parenting training. On balance, the Board considered that the public benefit of making the publications available to adults would outweigh the harm because “the great majority of the public will be repulsed by rather than attracted to the publications”.²⁰

The appeal

• [22] The appeal is brought under s 58 of the Act which permits appeals on questions of law only. The Attorney-General argues the Board’s decision involved the following errors of law:

(a) First, the Board misapplied or misinterpreted the Court of Appeal’s decisions in the Moonen v Film and Literature Board of Review cases when considering whether the publications should be deemed objectionable by failing to ask itself whether the text conversations had the effect of normalising the proscribed activities.

¹⁸ Although a minority of the Board would have classified the publications as objectionable (at [57]).

¹⁹ At [55]–[56].

²⁰ At [56].

(b) Second, the Board failed to impose restrictions on the availability of the publications that would prevent the likely harm to public good it had identified.

(c) Third, the Board’s analysis under s 3(3) of the Act is inconsistent with its conclusions under s 3(2). In other words, given its findings under the second pathway, the Board ought to have found that the publications were deemed objectionable under the first.

• [23] I deal with the first and third grounds together as they are closely related and were largely advanced at the hearing as a single ground.

Did the Board misapply the Moonen decisions in its s 3(2) assessment?

• [24] The appellant’s main criticism of the Board’s decision is that it misapplied the Court of Appeal’s decision in Moonen (No 2) when conducting its analysis under s 3(2). The Attorney-General says that when considering whether the publications promote or support the exploitation of children for sexual purposes, the Board needed to ask whether the text conversations “normalised” that activity. Its failure to do so was an error of law.

• [25] In order to understand this submission some context is necessary. The Moonen cases concerned the classification of a book containing nine stories describing sexual activity between men and boys under the age of 16, as well as photographs of naked children, which appear to have been intended for dissemination. The Board classified the stories as objectionable, and that decision was appealed to the Court of Appeal.

• [26] In Moonen (No 1), the Court of Appeal explained that a Bill of Rights consistent approach is required for the words “promotes or supports”, and their meaning must impinge as little as possible on freedom of expression.²¹ Importantly, the Court explained that the mere description or depiction of a prohibited activity does not by itself “necessarily amount to a promotion of or support for that activity”. Rather:²²

²¹ Moonen (No 1), above n 7, at [27].

²² At [29].

The concepts of promotion and support are concerned with the effect of the publication, not with the purpose or the intent of the person who creates or possesses it. The concepts denote an effect which advocates or encourages the prohibited activity, to borrow the words of Rowles J of the British Columbia Court of Appeal in an allied context in R v Sharpe... Description and depiction (being the words used in section 3(3)(a) of the Act) of a prohibited activity do not of themselves necessarily amount to promotion of or support for that activity. There must be something about the way the prohibited activity is described, depicted or otherwise dealt with, which can fairly be said to have the effect of promoting or supporting that activity.

• [27] The Court of Appeal concluded it was not apparent from the Board’s decision how the book had the effect of promoting or supporting the exploitation of children of young persons for sexual purposes. It set aside the classification and directed the Board to reconsider the question.

• [28] The Board, in light of the Court of Appeal’s judgment, revisited the issue and came to the following conclusion:²³

... the nine stories depicted sexual activity between men and boys under the age of sixteen in such a way as to give the impression that such activity is both normal and pleasurable and without adverse consequences or effects: in other words, that the stories would have the effect of encouraging those who might consider engaging in such activities. It was this very apparent normality of the depicted activity which, in the Board’s opinion, brought the book within the terms of the statute.

• [29] In the Board’s view, the book promoted or supported sexual conduct with underage boys through “the encouragement given to such activity by the very way in which it is treated as ‘normal’ and pleasurable”.²⁴ In Moonen (No 2), the Court of Appeal was satisfied that the Board had applied the law as directed and found no error in its approach.²⁵

• [30] In light of that decision, the Attorney-General argues that the Board was required to consider whether the text conversations “normalised” the sexual exploitation of children when assessing promotion or support under s 3(2). In essence, the Crown argued that if a publication implicitly or explicitly depicts sexual contact with children as normal, pleasurable, and without harm or adverse consequences, then

²³ Moonen (No 2), above n 3, at [17].

²⁴ At [17].

²⁵ At [21]–[22].

it inherently encourages that conduct and must be proscribed under s 3(2) without any further consideration of the matters addressed in subss (3) and (4). Here, it is submitted that the conversations depict the sexual exploitation of underage girls as desirable, easy, sexually stimulating and (apparently) without harm. Therefore, the publications inherently promote or support that conduct and are deemed to be objectionable under s 3(2).

• [31] The third alleged error of law is really an extension of this submission. The Attorney-General draws attention to the finding that the publications are harmful to the four defendants and might be taken by some members of the public as an endorsement of child exploitation, and says that this is essentially a finding that s 3(2) applies. In other words, the Board has already found that the conversations tend to promote or support the sexual exploitation of children because some people will view them as an encouragement of that activity.

• [32] I am unable to accept the approach advanced by the Attorney-General for the reasons that follow.

• [33] First, the Attorney-General is essentially seeking to elevate what was a factual finding in Moonen (No 2) to an express legal requirement that must be considered and explicitly addressed by the Board in every case. As noted above, in Moonen (No 2) the Board identified the normalising effect of the publication as the added ‘thing’ which gave rise to promotion or support for the proscribed activity. It did so because the Court of Appeal in Moonen (No 1) had said that depiction alone might not necessarily amount to encouragement and support, and that something more may be required. As Ms Watt argued, the Court of Appeal’s consideration in Moonen (No 2) of the additional character or effect of the publication as normalising was either a matter of fact or an evaluation in the Board’s expert opinion necessary to support a finding of promotion or support. The Court of Appeal did not suggest that normalisation should be a mandatory consideration for the Board. It simply endorsed the Board’s finding that the book portrayed the conduct as enjoyable and without harm, and therefore normalised or encouraged sexual activity between men and boys.
• [34] Mr Price in reply conceded that the Board is not required to consider normalisation in every case, but only in those where it is relevant. Here, he argued it was clearly relevant because the text messages between the senders and recipients indicated their view that sex with a 12-year-old girl was desirable, pleasurable and without harm.

• [35] While I accept that normalisation may be a relevant consideration (as was the case in Moonen), and could well support a finding that s 3(2) applies, that will be a matter for the Board’s expert assessment. I do not consider that the failure to expressly consider the concept in this case was an error of law.

• [36] The more fundamental difficulty with the Crown’s approach is that it overlooks an important aspect of the structure of s 3. The activities proscribed by s 3(2) are also reflected in the s 3(3) factors. By way of example, s 3(2)(a) captures publications which promote the “exploitation of children...for sexual purposes”, while s 3(3)(a)(iv) and (3)(b) concern publications involving “sexual conduct with or by children” and “child nudity”. Similarly, both s 3(2)(f) and s (3)(a)(i) refer to acts of torture or the infliction of extreme violence or cruelty.

• [37] While s 3(2) focusses on the effect of the publication by reference to the prohibited subject-matter set out at s 3(2)(a)–(f),²⁶ s 3(3) is more granular, and focusses on the intrinsic nature of the publication itself. It is therefore implicit in the structure of s 3(2) and (3) that the two pathways overlap. The language and structure of the provision suggests that Parliament contemplated there would be some depictions of sexual activity involving children that do not meet the threshold under s 3(2) but are nevertheless still objectionable under the more holistic and judgment informed balancing exercise under s 3(3) and (4). Moreover, it seems clear given the overlap between the two pathways that the factors under one pathway are likely to be relevant to an assessment under the other. In Snell, Cooke J expressed the view that the mandatory considerations in s 3(3) and (4) might be relevant to an assessment of whether a publication “promotes or supports” under s 3(2), and vice versa.²⁷ I agree.

²⁶ Moonen (No 1), above n 7, at [29].

²⁷ Snell v New Zealand Customs Service, above n 3, at [33] and [35].

• [38] The Crown’s approach to classification on the other hand is botanical: a publication can either fall under subs (2) or under subss (3) and (4), but not both. The difficulty with that approach is that it does not appear to leave the pathway under s 3(3) and (4) with any real work to do. That is because the concept of “normalisation” advanced by the Crown sets a very low threshold for assessing promotion or support under s 3(2), despite indications by the courts to the contrary.²⁸ As I raised with Mr Price during the hearing, one view might be that any depiction of a prohibited activity normalises it. His response was that a publication will not normalise an activity if it contains implicit or explicit disapproval of the depicted conduct. In essence, the proposed approach appears to be that depiction without disapproval amounts to promotion or support. However, that position is not easily reconciled with the Court of Appeal’s statement in Moonen (No 1) that depiction alone will not invariably amount to encouragement.²⁹ There must be something about the way the prohibited activity is described, depicted or otherwise dealt with, which can fairly be said to have the effect of promoting or supporting that activity.

• [39] Moreover, if a “tendency to promote or support” must be found wherever any person or part of society might find encouragement in the publication, it is difficult to imagine any publication dealing with prohibited material that does not fall within s 3(2). Once again, that would effectively render the second pathway under s 3(3) and

(4) otiose, a result that Parliament is unlikely to have intended.

• [40] For these reasons, I do not accept that the Board was required to expressly consider if the publications “normalised” the exploitation of children to reach a legally correct view under s 3(2). Nor do I accept that by virtue of its findings on the likely harms of the publications it was required to find that the publications promoted or supported a proscribed activity such that they must be deemed to be objectionable under s 3(2).

• [41] In my view, the legal approach of taken by the Board in its decision was correct. It identified the appropriate principles in Moonen (No 1) and (No 2). It considered whether the publications promoted or supported the proscribed activity and concluded

²⁸ At [40].

²⁹ Moonen (No 1), above n 7, at [29].

that they were no more than an actual “depiction” of the men’s communications and their interests in sex with a child. In short, the additional factor contemplated in Moonen (No 1) is missing.³⁰ Rather than finding that the publications advocated for the prohibited activity, it considered that they might tend to have the opposite effect in that most readers would find the conversations aberrant and morally reprehensible. Having concluded that the conversations were not deemed objectionable under the first pathway, the Board then turned to consider whether it might nevertheless qualify as objectionable under the second. It concluded that they were, but that the harm identified could be addressed through an R18 classification under s 23.

• [42] I can discern no error of law in this approach.

Does the R18 restriction fail to address the harms identified by the Board?

• [43] The Attorney-General’s second alleged error of law is that the classification imposed failed to address the risks it had identified.

• [44] As noted, the Board determined that some members of the public might take the publications as an endorsement of child exploitation.³¹ It also found the publications would be harmful to the four defendants. The Attorney-General’s criticism is that the R18 restriction imposed failed to prevent the publication being made available to those categories of people. Put another way, the classification was not directed to the harm identified.

• [45] The Attorney-General points to the Court of Appeal’s comment in Moonen (No 1) that “classification should be consistent with the extent of the mischief found in the particular publication”.³² The paramount mischief here is the risk that some members of the public—even if that is a very small proportion—may view the publications as an endorsement of child exploitation. Because there is no way of

³⁰ The Board stated no less than three times in its analysis under s 3(2) that it did not consider the publications contained promotion or support, concluding “there is nothing in the sexual conversations depicted which promotes or supports the exploitation of children or young people for sexual purposes” (Board’s decision, above n 2, at [46]).

³¹ At [55].

³² Moonen (No 1), above n 7, at [31].

knowing who those people might be, the only way to effectively prevent that serious risk is to ban the publications in their entirety.

• [46] I accept that there ought to be a rational connection between the identified harm and classification imposed. However, it must be remembered that the Board is an expert panel that has been provided a wide discretion over the matter of classification by Parliament. As Cooke J observed, the broad, holistic assessment of objectionability under s 3(3) and (4) “more squarely engages the Board’s experience and expertise [than the assessment under s 3(2)]”.³³ Those same evaluative factors are engaged in the discretion relating to classification in s 23.

• [47] The comments of Hammond J in Re Baise Moi are also helpful and I respectfully adopt them:³⁴

... as a very general proposition, there should be due proportionality between “the wrong” and what is to be done about it. The appellant maintains that much more restrictive conditions should have been attached to the film. But having acknowledged the general principle of proportionality, the difficulty is again encountered that the Board was statutorily empowered to impose such conditions as it saw fit in terms of s 23 of the Act. Here the Board was again very much exercising its judgment, and its discretion, as to what should be done about a publication it had found to be objectionable. Whether this Court should interfere in that dimension seems to me to encounter the sort of considerations set out in May v May. The Board had a discretion as to what should be done if the film was found to be objectionable. What it did say, in effect, was “adults will have to make up their own minds about this film”. That was a view which was open to it.

• [48] Overall, I am not persuaded that there was a lack of rational connection between the types of harm the Board identified and the restriction it imposed. Notwithstanding that it had determined that the publication did not meet the deemed objectionable threshold in s 3(2), the Board nevertheless recognised that it might present harm for young people—a relevant consideration under s 23—and accordingly sought to balance those risks by giving the publications an R18 classification.

• [49] While the Board acknowledged that a small part of the public might be encouraged by the publications, it considered that the vast majority of the population

³³ Snell v New Zealand Customs Service, above n 3, at [39].

34. Re Society for the Promotion of Community Standards Inc (No 2) (Re Baise Moi) [2002] NZAR 897 (HC) at [62].

would view them as repugnant. It noted that the conversations are not obviously titillating and considered that they could have educational value, for example in increasing parents’ awareness of the nature and degree of risk posed to children by paedophiles. The Board weighed these risks against each other and concluded, on balance, that the public benefit will outweigh the harm if the publications are made available to adults. That in my view was a decision that was open to it. After all, s 23(3) confirms that educational purposes are a legitimate reason for imposing a restricted classification on a publication that would otherwise be classified as objectionable.³⁵

Conclusion

• [50] For these reasons I have concluded that the appeal must be dismissed.

• [51] This case also raises an interesting question about whether Parliament intended the legislation as enacted to capture private text messages as objectionable publications. Unlike publications such as videos, pictures, books, magazines, and audio recordings which are very much intended to be created, text message records are essentially the by-products of electronic conversation. It is therefore not entirely obvious how a person participating in a private text conversation “makes” a publication.³⁶ Moreover, electronic messaging is now an integral part of modern day communication; it is simply another form of speech. Including electronic conversation within the censorship regime raises the potential for serious criminal responsibility to attach to speech in a way that may result in unintended consequences, and requires broader consideration of its implications.

• [52] I do not understand costs to be an issue but if the parties are unable to resolve that question they have leave to apply.

³⁵ While I find it hard to discern the educational value in the text conversations, that is neither here nor there. My role on appeal is not to usurp the expert functions of the Board, but to determine whether it made an error of law. I do not consider that it did in its approach to classification.

³⁶ In R v Spark, the Court of Appeal adopted Chisholm J’s view in Kellett v Police (1995) 21 CRNZ 743, at [18], that “making” a publication requires some element of compilation or creativity beyond “simply copying”, or, put another way, there must be “editorial involvement which goes beyond mere copying” (Spark, above n 5, at [36]).

• [53] Finally, I acknowledge counsel for the Attorney-General and the Board for the very helpful submissions they made. They each presented their case on complex issues with skill and care.

Isac J

Solicitors:

Crown Law, Wellington for Appellant

Izard Weston, Wellington for First Respondent

N Pointer, Barrister, Christchurch for Second Respondent Hamlin Law, Auckland for Fourth Respondent

M J Smith, Barrister, Christchurch for Fifth Respondent