Censorship: Society for the Promotion of Community Standards v Elliot

The High Court held that the President of the Film and Literature Board of Review had applied an incorrect test in reviewing the Classification Office rating for the French film Irreversible.

In finding that the President of the Film and Literature Board of Review had applied an incorrect test in reviewing a Classification Office rating, Justice MacKenzie upheld two of the five grounds advanced by the Society for the Promotion of Community Standards (SPCS) in their application for judicial review.

In light of those findings, Justice MacKenzie ordered the President to reconsider her decision not to grant an interim restriction order against the French film Irreversible.

Background

Despite having earned the Bronze Horse award for best film 2002 at the Stockholm International Film Festival and a nomination for the Palme d'Or at the 2002 Cannes Film Festival, Irreversible has attracted criticism for its inclusion of a graphic and extremely violent nine-minute rape scene.

In 2003, the Office of Film and Literature Classification (OFLC) had limited its exhibition to film festivals and tertiary institutions.

After failing to get an interim restriction order stopping the film's exhibition at Beck's Incredible Film Festival in 2003, SPCS withdrew its application to have the film's classification reviewed under s 47 of the Films, Videos and Publications Classification Act 1993.

In 2004, the film's distributor asked the Classification Office to consider allowing the film to be released for adult viewing in cinemas.

The OFLC reconsidered the classification and on 28 July 2004 it decided to reclassify the film "objectionable except if the availability of the publication is restricted to persons who have attained the age of 18 years and for the purposes of theatrical exhibition or study in tertiary institutions only."

In removing the limitation that the film only be shown at a film festival, the OFLC took into account, inter alia the film's international pattern of release - it was first exhibited at a film festival before going on to general theatrical release in Argentina, Australia, Germany, Spain, Japan, Sweden and the USA.

On 5 August 2004, SPCS lodged an application for the making of an interim restriction order by the President under s 49 of the Act in order to prevent the film's theatrical release. The President refused the application and declined to make an interim restriction order.

What are 'Interim Restriction Orders'?

An interim restriction order can be put on a film only when someone has asked the Film and Literature Board of Review to review the Classification Office's classification of the film.

As a temporary 'stop' on screening, an order has very specific effect: to preserve the position of the person seeking a review until the review hearing is held.

It is therefore at the review hearing, not the interim restriction order hearing, where argument on the film's classification can be properly considered.

In the Society for the Promotion of Community Standards [2002] NZAR 884 Hammond J. placed weight on "the need to use interim restriction powers in a way that preserves the statutory process", characterising an order of this kind as "a deferment of viewing until the due process of law is completed."

Judicial review of the President's decision - what can the President take into account?

Among the grounds for review, SPCS alleged that the President had applied the wrong test in requiring that there be an "obvious error" in the Classification Office rating.

Justice MacKenzie agreed and further held that it was not necessary for the President to view the publication itself in order to form some preliminary view as to the appropriateness of the classification, or to decide on whether the OFLC's classification was clearly wrong, as to do so would require the President to form a view on the merits of the film.

Justice MacKenzie felt that it was for the Board to consider the merits during the review stage, not the President during the preceding interim order stage.

He also held that the President was wrong to apply a high threshold test when making an order of this sort. Section 49(2) of the Act provides the President with a discretion to make an interim restriction order if satisfied that it is "in the public interest to do so". The only relevant test was therefore 'whether or not it is in the public interest to do so.'

'In the public interest'?

This case provided the Court with its first opportunity to fully consider the decision-making process by which interim restriction orders are made under s 49 of the Act.

Despite this, Justice MacKenzie was only prepared to give guidance on the considerations which are not relevant, concluding that:

"I do not consider that it is desirable to attempt to comprehensively list the type of considerations which might be relevant. . . .A decision as to what considerations, in any particular case, is, in the first instance, a matter for the President."

Bearing in mind that the appropriate test is "in the public interest" (a notoriously vague concept in itself), and that the President is unable to form a view on the merits of the film - it is difficult to see on what grounds one film could be restricted and not another.

Fortunately the President has since re-considered the application and defined 'in the public interest' as involving an assessment of every relevant factor affecting the interests of the public at large - including but not limited to:

• the fact that Irreversible had been screened the year before at a film festival



• compliance with the review process



• overseas ratings of the same film



• the Bill of Rights Act 1990 and the right of freedom of expression



• the fact that no screenings were planned between then and date set down for the Board's review hearing.

In balancing those interests against each other, the President ultimately refused the restriction order for Irreversible.

Enquiries and information

For more information on film classification, please call Kirsty Newland on 64 9 916 8785.