Censorship law in New Zealand

It's not enough that the film describes or depicts or somehow deals with these things. It's got to do so in such a manner that the availability of the publication, the availability of the film – not the film itself, but its availability – is likely to be injurious to the public good.

Now availability gets you thinking about audience – available to whom? So you have to ask yourself – how will making this film available to any particular group in society injure society as a whole, or be likely to injure society as a whole.

Public good isn't defined anywhere in the Act. It doesn't say 'public' though – it says 'public good', so that probably elevates it a bit into a consideration of society and how these things will affect society.

Injury to the public good – the Act doesn't say how the public good gets injured either. But we'll want you to tell us today how this film's availability might injure the public good. And the question is not whether the film will injure those people likely to see it – the question is how will the availability of this film, if it's made available to any group in society, like younger people or older people, how will making this film available to any group in society be likely to injure society as a whole. That's the bottom line question you have to ask yourself.

- Former Chief Censor Bill Hastings

With this bit here, you now have discretion again. It says in determining whether or not any publication, other than the gross automatic ban thing I just showed you, is objectionable – is banned – or should be given a classification other than objectionable, such as restricted, or even unrestricted – Parliament says you have to give particular weight – not just any old weight but particular weight – to the extent, and degree to which, and the manner in which the publication depicts a whole lot of stuff.

Now you can see all these things here – they're not going to be in every publication. But if they are in any particular publication, you have to give particular weight to them. And it's not just particular weight to the content, but you have to give particular weight to the extent and degree to which, and the manner in which, this content is depicted.

So in a film, extent is going to be running time – how long is this film depicting acts of cruelty? Degree is like intensity – how intensely is the film dealing with, for example, cruelty? And manner – what is the manner in which this film is depicting cruelty? Is it for entertainment? Is it a serious treatment of the harmful effects of cruelty? Is it educational?

- Former Chief Censor Bill Hastings

Now language – in 2005 the Act was amended to allow us to take into account highly offensive language as a classification criteria. We can't ban for it, but you can restrict for it.

The thing to note though is that it's highly offensive language, not just offensive language. So we would like you to tell us if you think there's any highly offensive language in this film, rather than just offensive language. How do you tell the difference between highly offensive language and offensive language? I don't know. You tell us. I suspect it might be context driven. We have done a couple of surveys about this.

I can give you one example of the 'f-word' – you know what that is. We showed two clips of films to members of the public containing the 'f-word'. One was The Aviator – you know The Aviator with Leonardo Dicaprio and Alec Baldwin – they only used the f-word once in that whole film, and it was when Alec Baldwin didn't get the licence to travel around the world for his airline, and he was in his office and he slammed his hand down on the globe and said 'f…' like that. People didn't mind that, people thought it was an appropriate use of the f-word because it was an expression of frustration, you know, it was a sort of natural expression of frustration.

But the same word, when it was used in a film called Closer – did anyone see that? With Julia Roberts and Clive Owen? It was also being typed out too. But that word, when it was used by Julia Roberts aimed at Clive Owen – 'f…you' and 'you f…'– she was targeting the word directly at Clive with malice and venom, it was like poisonous darts being thrown at him. People hated that. But it was the same word. So we think that it's context driven – the difference between offensive language and highly offensive language is probably going to be context driven.

- Former Chief Censor Bill Hastings

The last thing you have to take into account is the freedom of expression in the Bill of Rights Act. That there says that everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinion of any kind in any form. You can seek it out on the internet, you can hunt it down. You can receive it from other people. You can make it and impart it to other people.

It's really broad; it looks absolute, doesn't it? It looks like a huge right you all have. And I can see that forefront in your minds is a question. I can see you're just dying to ask me, Bill, how is that we can have the freedom of expression on the one hand, in the statute books, and the Classification Act on the other hand, whose only job is to restrict the freedom of expression? How can the two co-exist? You were thinking that, weren't you? You were! How can the two co-exist? They're inconsistent with each other. I'll tell you the answer. It's all up here in this 4, 5 and 6 stuff.

They can co-exist because the freedom of expression is not absolute. You can limit the freedom of expression, provided those limits are reasonable – and I can see that you're all reasonable here. They have to be prescribed by law, the limits have to be prescribed by law, which they are – it's in the Classification Act I just told you about. And they have to be demonstrably justifiable in a free and democratic society – such as New Zealand. No one could deny this is a free and democratic society, which has passed a Classification Act – which allows the freedom of expression to be restricted. So we're sweet.

The bottom line is, if having applied all the classification criteria, you can't still make up your mind between say an R18 and an R16 – what this tells you to do – what the freedom of expression tells you to do, is choose the lighter of the two classifications – so choose the R16. If you can't decide between an R16 and say an M, choose M. That's what the Bill of Rights does at the end of the day.

- Former Chief Censor Bill Hastings

Television and radio we do not do. That's subject to its own regime – the Broadcasting Act. It has the Broadcasting Standards Authority instead of us, and it's a whole different system. Everything is allowed to be broadcast – there are standards – but everything is allowed to be broadcast first. Then, if someone thinks that standards have been breached and wants to complain, they complain. So it's allowed to go out and then someone makes a complaint – first of all to the broadcaster, then if they don't get satisfaction from the broadcaster it goes to the Broadcasting Standards Authority.

So we don't do television and radio. Which in a way is kind of weird. Because when you go into someone's living room and the TV is on, if the image on the TV is from a DVD it will have come from our office, it will have had a label, gone through this system. But if the exact same image is being broadcast, it won't have come from our office, it'll have come from the Broadcasting Act regime.

- Former Chief Censor Bill Hastings