As a result of the Moonen case, the Court of Appeal determined that the Classification Office must always fully consider the freedom of expression set out in the New Zealand Bill of Rights Act 1990 whenever it restricts, cuts or bans a publication.
The following is taken from the introduction to the Court of Appeal decision:
This appeal concerns the relationship between freedom of expression and censorship of objectionable publications. The appellant (Mr Moonen) appealed to the High Court from the decision of the Film and Literature Review Board ('the Board') determining that a book called The Seventh Acolyte Reader ('the Book') and various photographs were objectionable in terms of s3 of the Films, Videos, and Publications Classification Act 1993 ('the Act'). Appeals from the Board to the High Court (under s58) and from the High Court to this Court (under s70) are restricted to questions of law. Gendall J held that the Board had made no error of law in coming to its decision, and dismissed the appeal. Mr Moonen appeals to this Court contending that Gendall J's decision is erroneous in law.
The paragraphs below are taken from the consideration sheets used by classification officers when they apply the law to a publication they are classifying. They show the impact of the Court of Appeal decision on the day-to-day work of the Office:
In Moonen v Film and Literature Board of Review (Moonen I), the Court of Appeal stated that the words 'promotes or supports' must be given 'such available meaning as impinges as little as possible on the freedom of expression' in order to be consistent with the Bill of Rights. The Court then set out how a publication may come within a definition of 'promotes or supports' in s3(2) that impinges as little as possible on the freedom of expression:
Description and depiction... 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.
Mere depiction or description of any of the s3(2) matters will generally not be enough to deem a publication to be objectionable under s3(2). When used in conjunction with an activity, the Classification Office defines 'promote' to mean the advancement or encouragement of that activity. The Classification Office interprets the word 'support' to mean the upholding and strengthening of something so that it is more likely to endure. A publication must therefore advance, encourage, uphold or strengthen, rather than merely depict, describe or deal with, one of the matters listed in s3(2) for it to be deemed to be objectionable under that provision.