Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9; (1999) 17 CRNZ 159; (1999) 5 HRNZ 224 (17 December 1999)

Last Updated: 29 November 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA42/99

	BETWEEN	G A MOONEN
		Appellant

	AND	FILM AND LITERATURE BOARD OF REVIEW
		Respondent

Hearing:	8 November 1999
Coram:	Elias CJ Richardson P Keith J Blanchard J Tipping J
Appearances:	T Ellis and A Shaw for Appellant JAL Oliver (Amicus Curiae)
Judgment:	17 December 1999

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

Introduction

[1] 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 publications

[2] The Book was described by the Board as containing nine stories which described sexual activity between men and boys under the age of 16. There were too many photographs for each to be described in detail but the Board said that those which attracted its attention were of naked children, mostly boys.

The legislation

[3] The Act replaced the Indecent Publications Act 1963, The Films Act 1983, and the Video Recordings Act 1987. In its long title it is described as consolidating and amending the law relating to the censoring of films, videos, books and other publications. The sections of the Act with which the argument was primarily concerned are ss3, 4, 23 and 41. Section 3, dealing with the meaning of the word "objectionable", is central to the whole Act. It is in the following terms:

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] The structure of s3 should be noted. Subsection (1) provides the general test for when a publication is objectionable. Various subject matters are described and the publication is regarded as objectionable if the subject matter is dealt with in such a manner that the availability of the publication is likely to be injurious to the public good. Central concepts are the manner in which the subject matter is expressed or dealt with, the availability of the publication, and likelihood of injury to the public good. Subsection (2) deems a publication to be objectionable if it promotes or supports, or tends to promote or support, one or more of the six things listed in paragraphs (a) to (f). The exploitation of children or young persons or both for sexual purposes is what is at issue in this present case.
[5] For deemed objectionability the key concept is that the publication must promote or support, or tend to promote or support, the prohibited subject matter. Parliament has said that if the criteria in subsection (2) are fulfilled, the publication is to be regarded as objectionable; there is no alternative. Publications which fall foul of subsection (2) are by legislative direction treated as dealing with a qualifying subject matter in such a manner that the availability of the publication is likely to be injurious to the public good in terms of subsection (1). A publication which is not deemed to be objectionable under subsection (2) may nevertheless be classified as objectionable, or given a restricted classification under subsection (3), after consideration of the matters referred to in that subsection, and in subsection (4).
[6] Section 4 deals with questions of evidence and proof and provides:

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.

[7] The first step in the classification process involves an examination by the Classification Office of the publication in order to determine its classification. This follows a submission of the publication to the Office as provided for in the Act. Section 23 deals with the role of the Classification Office as follows:

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.

[8] A classification thus made can be reviewed by the Board under s47. The classification of a publication once made, either by the Office or the Board, is described in this way in s41:

41. DECISIONS TO BE CONCLUSIVE EVIDENCE -

(1) Subject to subsection (2) of this section and to sections 42, 47, and 58 of this Act, a subsisting decision of the Classification Office or of the Board in respect of any publication is conclusive evidence in any proceedings that the publication--

(a) Is not objectionable; or

(b) Is objectionable; or

(c) Is objectionable except in any one or more of the following circumstances, as specified in the decision:

(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.

(2) Where any person is charged with an offence against this Act or any other enactment, nothing in subsection (1) of this section shall prevent that person from challenging any decision of the Classification Office or the Board in respect of any publication if not less than 1 year has elapsed since that decision was recorded in any list produced in accordance with section 40 of this Act.

(3) Where subsection (2) of this section applies in respect of any decision of the Classification Office or the Board, the court shall, at the request of the person so charged, refer the decision to the Classification Office for reconsideration, or to the Board where the decision to be reconsidered is a decision of the Board.

The decision of the Board

[9] After referring to the legislation the Board expressed its conclusion, in relation to the Book, in these terms:

The book can be disposed of reasonably quickly. The Board does not accept Mr Ellis's submission that because the book is a work of fiction, it is incapable of exploiting children or young persons for sexual purposes. Mr Ellis's submission would mean that the Act could rarely, if ever, apply to text. Both the definitions of "publication" and "objectionable" are expansive enough to include printed descriptions of "real" and "fictional" matters. It is often difficult to tell each apart and to do so is irrelevant to whether or not a publication promotes the exploitation of children or young persons or both. A work of fiction is as capable of exploiting children or young persons as a film, photograph or newspaper advertisement. Indeed, if fiction were exempt from censorship legislation, there would be little left to censor. This book is full of stories in which children both initiate and are seduced into sexual activity with men. Sexual abuse of boys and young male teenagers by older teenagers and men is described for the purpose of sexual titillation. The Board has no doubt that this book promotes the exploitation of children and young persons for sexual purposes. It consequently falls within s. 3(2)(a) and must be classified "objectionable".

[10] The Board found that certain of the photographs, which depicted sex between young persons, were deemed objectionable under s3(2)(a) because they tended to promote or support the exploitation of young persons for sexual purposes. The remaining photographs containing nudity were then examined under s3(3)(b). As to them, the Board observed:

The Board must give "particular weight" to whether or not they exploit the nudity of children or young persons. The manner in which some of the naked children have been depicted is exploitive of their nudity. Those photographs which are close-ups of a child's genitals or anus, and those in which the photographer has taken the photograph from below or from an angle which emphasises the genital area, are exploitive of the child's nudity because rather than depicting simply a naked child, the viewer's attention is drawn to the child's genital or anal area. The child's nudity is consequently exploited, or taken advantage of, by the photographer's emphasis in composing such shots.

Turning to s. 3(4), the Board heard evidence that the applicant intended to use the photographs in a book he intended to author. Some of the photographs would be discarded by the applicant, others would not. They were not intended for any other purpose. The applicant considered that some of the photographs had artistic merit. The Board notes that it is not necessary for a publication to be published for it to fall within the definition of "publication" in the Act. Even if nobody but the applicant saw the photographs, and even if the book were never published, the photographs would still be subject to censorship under this Act if their availability, even if only to the applicant, were likely to injure the public good.

[11] With reference to submissions made by Mr Ellis, the Board said:

Mr Ellis made many submissions to the effect that the definition of "objectionable" in s. 3 of the Act violates the freedoms of thought and expression contained in ss. 13 and 14 of the Bill of Rights Act 1990, and New Zealand's international obligations contained in the International Covenant on Civil and Political Rights. To a large extent, Mr Ellis made these arguments in the wrong forum. As the High Court said in News Media Limited v Film and Literature Board of Review (Unreported, Wellington Registry, AP 197/96) at p. 15,

Bill of Rights considerations do not take matters further. ... The restrictive provisions of the Films, Videos, and Publications Classification Act 1993 are inconsistent with that s. 14 freedom, to the extent of the limits they place upon it, and are predominant by virtue of s. 4. Thus despite s. 14, censorship within the law prevails and the interpretation directions of s. 6 do not arise.

The Board cannot, as Mr Ellis seems to have suggested, consider as relevant to its classification function his submission that the Act violates New Zealand's international obligations. The Board cannot amend the Act or decline to apply it because it may, according to Mr Ellis, breach international law. Although Parliament is presumed not to violate international law when it enacts legislation, that presumption is rebuttable, and is in fact rebutted if Parliament passes legislation clearly violating New Zealand's international obligations. The High Court has found that the Act is inconsistent with s. 14 of the Bill of Rights Act which is Parliament's implementation of the freedom of expression found in the Covenant. Further, the freedom of expression, even in international law, is not absolute, as is evident in Article 19(3) of the International Covenant and Article 34 of the Convention on the Rights of the Child. However compelling his arguments are that the Act violates international law, Mr Ellis's remedy lies with Parliament, not with the Board.

[12] The Board's conclusion with respect to the remaining photographs was expressed by reference to a schedule. Those marked as objectionable on the schedule were held to be so because they exploited "the nudity of children and young persons in s3(3)(b) to an extent that their availability is likely to injure the public good." The remainder were classified as unrestricted.

High Court judgment

[13] After referring to the relevant provisions of the Act and the Board's decision, and after referring to various submissions of counsel, Gendall J noted a submission by Mr Ellis for the appellant that the Board had failed properly to consider and apply the New Zealand Bill of Rights Act 1990 ("the Bill of Rights"). That submission involved a contention that in certain respects the decision of the Full Court of the High Court in News Media Ltd v Film and Literature Board of Review (1997) 4 HRNZ 410 was unsound. Understandably Gendall J followed that decision and came to the conclusion that the Board had made no error in following the News Media case. The Judge discussed a variety of other arguments raised before him which do not require separate consideration at this stage, and came to the conclusion that the Board had not in any way erred in law.

Principal submission in this Court

[14] Although not expressed in this way, the principal submission adopted by Mr Ellis and Mr Shaw in this Court, as developed in argument, was to the effect that the Board and the High Court had been led astray by erroneous observations of the Full Court in the News Media case (supra). The point concerns the impact of the Bill of Rights on the correct interpretation and application of the Act, and in particular s3. A number of specific submissions were made under that general argument but it will be useful to consider the more general point before addressing such of the specific points as require consideration.

Discussion - Bill of Rights

[15] Under s14 of the Bill of Rights, everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form. This right is as wide as human thought and imagination. Censorship of publications to any extent acts as a pro tanto abrogation of the right to freedom of expression. The rationale for such abrogation is that other values are seen as predominating over freedom of expression. Nevertheless the extent of the pro tanto abrogation brought about by censorship legislation must, in terms of s5 of the Bill of Rights, constitute only such reasonable limitation on freedom of expression as can be demonstrably justified in a free and democratic society. If the Court considers that the right to freedom of expression has by censorship legislation been made subject to an unreasonable limitation, which cannot be demonstrably justified in a free and democratic society, there arises a breach of s5 of the Bill of Rights. Yet because s5 is subject to s4, that breach does not invalidate the legislation. The inconsistency is recognised but the legislation stands. Section 4 says as much, having relevance and effect, as it does, only if there is an inconsistency.
[16] The present point is that relevant provisions of the Bill of Rights must be given full weight in the construction of the Act, and in any classification made thereunder. Indeed s6 of the Bill of Rights requires that where an enactment can be given a meaning that is consistent with the rights and freedoms contained in the Bill of Rights, that meaning shall be preferred to any other. Thus if there are two tenable meanings, the one which is most in harmony with the Bill of Rights must be adopted. Section 5 when read with s6 fulfils a similar role. An enactment which limits the rights and freedoms contained in the Bill of Rights should be given such tenable meaning and application as constitutes the least possible limitation. Where an unjustified and unreasonable limitation nevertheless results, because no other meaning or application is tenable, such limitation, while constituting a breach of s5, nevertheless prevails by dint of s4.
[17] Although other approaches will probably lead to the same result, those concerned with the necessary analysis and application of ss 4, 5 and 6 of the Bill of Rights may in practice find the following approach helpful when it is said that the provisions of another Act abrogate or limit the rights and freedoms affirmed by the Bill of Rights. After determining the scope of the relevant right or freedom, the first step is to identify the different interpretations of the words of the other Act which are properly open. If only one meaning is properly open that meaning must be adopted. If more than one meaning is available, the second step is to identify the meaning which constitutes the least possible limitation on the right or freedom in question. It is that meaning which s6 of the Bill of Rights, aided by s5, requires the Court to adopt. Having adopted the appropriate meaning, the third step is to identify the extent, if any, to which that meaning limits the relevant right or freedom.
[18] The fourth step is to consider whether the extent of any such limitation, as found, can be demonstrably justified in a free and democratic society in terms of s5. If the limitation cannot be so justified, there is an inconsistency with the Bill of Rights; but, by dint of s4, the inconsistent statutory provision nevertheless stands and must be given effect. In determining whether an abrogation or limitation of a right or freedom can be justified in terms of s5, it is desirable first to identify the objective which the legislature was endeavouring to achieve by the provision in question. The importance and significance of that objective must then be assessed. The way in which the objective is statutorily achieved must be in reasonable proportion to the importance of the objective. A sledge hammer should not be used to crack a nut. The means used must also have a rational relationship with the objective, and in achieving the objective there must be as little interference as possible with the right or freedom affected. Furthermore the limitation involved must be justifiable in the light of the objective. Of necessity value judgments will be involved. In this case it is the value to society of freedom of expression, against the value society places on protecting children and young persons from exploitation for sexual purposes, and on protecting society generally, or sections of it, from being exposed to the various kinds of conduct referred to in s3 of the Act. Ultimately, whether the limitation in issue can or cannot be demonstrably justified in a free and democratic society is a matter of judgment which the Court is obliged to make on behalf of the society which it serves and after considering all the issues which may have a bearing on the individual case, whether they be social, legal, moral, economic, administrative, ethical or otherwise.
[19] The fifth and final step which arises after the Court has made the necessary determination under s5, is for the Court to indicate whether the limitation is or is not justified. If justified, no inconsistency with s5 arises, albeit there is, ex hypothesi, a limitation on the right or freedom concerned. If that limitation is not justified, there is an inconsistency with s5 and the Court may declare this to be so, albeit bound to give effect to the limitation in terms of s4.
[20] It might be said that the potentially difficult and detailed process involved under s5 is somewhat academic when the provision in question is bound to be applied according to its tenor by dint of s4. Section 5 would have had more than persuasive effect if the Court had been given the power, as in Canada, to declare legislation invalid. That was deliberately not done in New Zealand and the late introduction of s4 into the Bill of Rights was not accompanied by any express recognition of the remaining point of s5. That section was, however, retained and should be regarded as serving some useful purpose, both in the present statutory context and in its other potential applications. That purpose necessarily involves the Court having the power, and on occasions the duty, to indicate that although a statutory provision must be enforced according to its proper meaning, it is inconsistent with the Bill of Rights, in that it constitutes an unreasonable limitation on the relevant right or freedom which cannot be demonstrably justified in a free and democratic society. Such judicial indication will be of value should the matter come to be examined by the Human Rights Committee. It may also be of assistance to Parliament if the subject arises in that forum. In the light of the presence of s5 in the Bill of Rights, New Zealand society as a whole can rightly expect that on appropriate occasions the Courts will indicate whether a particular legislative provision is or is not justified thereunder.

News Media case

[21] Against that background we turn to consider the News Media case. The Board had banned the issues of New Truth and TV Extra for 4 November 1994 because they contained advertisements for sexual services which the Board found were deemed objectionable under s3(2) of the Act. One of the issues was whether the inclusion of the advertisements in the publications could properly be seen as promoting or supporting, or tending to promote or support, the activities described. The Board had held that as the publisher could reject the advertisements their inclusion should be seen as a form of promotion or support. The approach of the Board to the Bill of Rights was described in this way by the Full Court at 416:

The Board then made something of an addendum related to the Bill of Rights. It acknowledged that the "absolute" character given to s 3(2) arguably was inconsistent with s 14 Freedom of Expression, and was prima facie a violation of s 6. The view was taken that any other meaning would violate Parliamentary intention, by including within s 3(2) a discretion which Parliament did not intend. The Act was intended to limit freedom of speech, in terms justifiable within s 5. Any s 6 softening would be contrary to Parliament's intentions, demonstrated by internal coherence. Even if not justifiable under s 5, s 3(2), as interpreted, was applicable in its terms in light of s 4.

[22] The Full Court then made its own reference to the Bill of Rights, as the Board noted in the present decision. It is this reference which is of particular moment in the present case. At 420 their Honours said:

Bill of Rights considerations do not take matters further. The publisher has the advantage of s 14 ...

The restrictive provisions of the Films, Videos, and Publications Classification Act 1993 are inconsistent with that s 14 freedom, to the extent of the limits they place upon it, and are predominant by virtue of s 4. Thus, despite s 14, censorship within the law prevails and the interpretation directions of s 6 do not arise. Although it may not be necessary to move to a consideration of s 5 and categorise censorship decisions as within "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" that further test is also clearly satisfied for the following reasons. As a legislative provision, s 3(2) is prescribed by law and thus is adequately accessible to the public. Its terms are formulated with clarity and precision and the test it imposes of "promotes or supports or tends to promote or support" is unambiguous and amenable to common-sense application. The specified activities are each listed and described with particularity. All but one of those activities involves a breach of the criminal law and thus their classification as objectionable is appropriate and rationally connected to the statutory objective, which is to regulate material that promotes or supports or tends to promote or support those activities.

In the result, we see no significant error in the Board's approach.

[23] There are, with respect, difficulties with that passage. The first is the statement that despite s14, censorship within the law prevails and the interpretation directions of s6 do not arise. Censorship within the law will prevail but the existence and extent of such censorship may indeed be matters to which s6 is relevant. The censorship provision must be interpreted so as to adopt such tenable construction as constitutes the least possible limitation on freedom of expression.
[24] The second matter relates to the Full Court's discussion of s5 which seems to have been based in substance on the clarity of the provisions and their being in harmony with the statutory purpose. That approach tends to beg the question. The statutory language may be clear and in harmony with the statute's perceived purpose, but that purpose may nevertheless be to introduce a limit on freedom of expression which is neither reasonable nor justified in terms of s5 of the Bill of Rights. We are not to be taken as saying that this is the case with the Act or any particular provision of it. It is the Full Court's reasoning process to which our comments are addressed.
[25] The proper influence of the Bill of Rights is far from academic in the present case. The Board's reasoning in respect of the Book has already been set out - paragraph 9 above. The Board found the Book promoted the exploitation of children and young persons for sexual purposes. Counsel stressed the Book was a work of fiction and that unlike the photographs it did not describe or depict actual children. Its fictional character does not however immunise it from the possibility of being found to be objectionable. But such character may be relevant to whether it promotes or supports, or tends to promote or support the exploitation of children and young persons for sexual purposes.
[26] The Board's decision contains no discussion and no reasons why it saw the Book as "promoting" the exploitation of children or young persons for sexual purposes. Reasons are required under s55(1)(c) of the Act. Nor does the Board's decision contain any discussion of the meaning which the Board gave to the concept of promotion.
[27] In considering the correct meaning of the words "promotes or supports", a Bill of Rights consistent approach is required. It is inevitable in a censorship context that some limit will be placed on freedom of expression, but the combined effect of ss5 and 6 of the Bill of Rights results in a need to put on the words "promotes or supports" such available meaning as impinges as little as possible on freedom of expression.
[28] Furthermore, in applying the concepts of promotion and support to the publications in question, s5 of the Bill of Rights requires that such application favour freedom of expression over objectionability if the case is marginal. It is not clear how the Board approached the construction and application of the concepts of promotion and support in the present case. There is, however, a likelihood, by reason of the Board's reference to, and its being bound by the decision of the Full Court in News Media, that the Board erroneously regarded Bill of Rights considerations as having no part to play. For these reasons the Board should reconsider the Book on the correct basis as outlined in the next paragraph.
[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, judgment given on 2 July 1999 at paragraph 184. Description and depiction (being the words used in s3(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. It is not apparent from the Board's decision how the nine stories, which described sexual activity between men and boys under the age of 16, had the effect of promoting or supporting the exploitation of children or young persons for sexual purposes in the sense of advocating or encouraging that exploitation.
[30] Those of the photographs that were held to be objectionable under s3(2) should also be reconsidered by the Board because the same statutory considerations apply to them as apply to the Book. The same risk exists that the Board's approach to the promotion or support issue was in error on account of its reliance on the News Media case, albeit the photographs depicted real rather than fictional children or young persons. That fact may be a material point of distinction in the ultimate assessment.
[31] The remaining photographs were classified objectionable under s3(3). The basis has been set out earlier. In our view there is no risk of any error of law of the kind discussed above having influenced the Board's decision in this area. Questions of promotion and support did not arise. The Board correctly identified the issue under s3(3)(b) and considered the matters referred to in s3(4). The Board's ultimate conclusion was that the photographs in question exploited the nudity of children and young persons to an extent, and in such a manner, that their availability, if only to Mr Moonen, was likely to injure the public good. That was a finding open to the Board and within the scope of their expert judgment under s4 of the Act. No Bill of Rights inconsistency can reasonably arise on this aspect of the case. Although the point was not pressed in oral argument, and it is not clear whether this was the Board's approach, it appears that the Board may have considered that if the mischief at which s3 is aimed was present there could be no restricted classification, as opposed to an objectionable classification, under s3(3). If that was the Board's view it would constitute a fetter on its powers which cannot be reconciled with the proper construction of the section. The presence of the mischief at which s3 is aimed does not preclude a restricted classification if, in the opinion of the Board, such a classification satisfactorily deals with the mischief. Indeed the classification should be consistent with the extent of the mischief found in the particular publication. The point is not one which requires the photographs in question to be reconsidered by the Board. It is, however, necessary to examine the particular submissions made to see if they avail Mr Moonen in respect of these photographs, and indeed generally.

Onus/standard of proof

[32] Counsel argued that as criminal consequences can flow from possession of objectionable publications, the Board should be satisfied beyond reasonable doubt that a publication is objectionable before classifying it as such. Counsel referred to the fact that, under s41, a subsisting decision of the Office or the Board is conclusive evidence that the publication is or is not objectionable or has a restricted classification. The potentially draconian consequences of that provision were said to underline the need for the Board to be satisfied beyond reasonable doubt before classifying a publication as objectionable. There was some argument whether the words "conclusive evidence" meant what they literally say. In our view they do. Conclusive evidence means that a publication classified as objectionable must be taken as such in all proceedings. The words "in any proceedings" in s41(1) must in their context mean in any civil or criminal proceedings. Section 41(2), referring to an offence, and s29 reinforce that conclusion.
[33] Counsel also discussed s4 and suggested that it applied only to questions arising under s3(3). We consider it applies as well to the matters the Office or Board must consider if it is suggested that a publication is objectionable under s3(2). To hold that s4 is limited to enquiries under s3(3) as was suggested, makes no sense and is at odds with the scheme of s3. There is always a live question in terms of s4 whether or not a publication is objectionable under s3(2) because it is only objectionable if the promotion or support test is fulfilled.
[34] In truth there is no question of onus or standard of proof arising in the classification process, whether in terms of s4 or otherwise. The question which the Office or Board has to determine can be characterised as one of assessment, judgment or opinion. It is not one of objective fact. Such a question arising in a classification context is not sensibly amenable to a standard or onus of proof. Indeed s4 itself makes it plain that evidence or proof are not required. The position in this respect cannot alter, if under s4(2) evidence or proof is tendered. While such evidence or proof must be taken into account by the person or body concerned, the section is based on the premise that no such evidence or proof is necessary. It must follow, notwithstanding counsel's reference to Comptroller of Customs v Gordon & Gotch (NZ) Ltd [1987] 2 NZLR 80 as the basis for s4, that in the classification exercise entrusted to the Office and the Board, those responsible make their assessment without reference to onus or standard of proof. They form their opinion of the publication against the statutory criteria, and their own expertise. They must take into account any evidence tendered, but ultimately if they consider the publication to be objectionable or otherwise, they make their classification accordingly. There was therefore no error of law in the Board's failure to direct itself in terms of an onus or standard of proof. It was not obliged to do so.

No definition of child or young person

[35] Counsel pointed out that the Act contains no definition of the words "child" or "young person". That is so. The omission is not helpful but is of no present moment. It cannot invalidate the Board's decision. No issue was taken with this lack of definition, either in front of the Board, or in the High Court. The Board referred to the various persons involved in the book and photographs as either children or young persons. There is no basis for saying that in doing so the Board erred in law. The assessment was ultimately one of fact against a construction of the relevant words, not discussed because their meaning was not put in issue. Mr Ellis's proposition that a particular person shown in one of the photographs is clearly not a child or young person raises a matter not open to Mr Moonen in this Court. Under s70 an appeal to this Court is for the opinion of this Court on a question of law which has arisen in the High Court and is said to have been erroneously determined by the High Court. The present point does not qualify.

Freedom of thought

[36] Both Mr Ellis and Mr Shaw argued that the Board had adopted an interpretation of the Act or had approached the publication in question on a basis that involved a breach of s13 of the Bill of Rights which affords to everyone the right to freedom of thought, conscience, religion and belief, including the right to adopt and hold opinions without interference. The argument, as was the case with others, was not easy to follow. It seemed to amount to the proposition that those reading or viewing the publication were being censored for the thoughts they might have when doing so. Alternatively it was suggested that the thoughts of those making or possessing the publication were being censored. Mr Ellis made repeated reference to the Board's statement that the Book described the relevant activity as being "for the purpose of sexual titillation". At one point he appeared to be arguing that the Board had wrongly substituted "sexual titillation" as the statutory criterion. The arguments in this area were, to our mind, wholly misdirected. The reference to the purpose of sexual titillation was made because the Board saw that as the purpose of the exploitation in terms of paragraph (a) of s3(2). The suggestion that the decision represented censorship of thought demonstrates a failure to appreciate the elementary distinction between having thoughts and expressing them. The Act is concerned with publications (as defined) which are not thoughts in themselves but rather their tangible manifestation. What were found objectionable were the Book and the photographs. The fact that in the process of reasoning which led to that classification, consideration might properly be given to the likely thought processes of those exposed to the publication, does not mean that their thoughts were being censored.
[37] If the publication is held objectionable and banned accordingly, the thoughts which prospective readers or viewers may have had if given the opportunity of considering the publication, have not occurred. The fact that the recipients are by the censorship deprived of the opportunity of forming such thoughts is inherent in the concept of censorship but it is not the thoughts that are being censored. This argument, and indeed others raised on Mr Moonen's behalf, are a good example of the not uncommon circumstance whereby counsel conceal or undermine such valid points as their client may have, by raising a plethora of ill-considered or untenable propositions. Another good example is the argument that by following the statutory words in its decision, the Board applied the wrong test. Whatever else might be said, the Board can hardly be said to have applied the wrong test by directing itself in terms of the statutory words. The point becomes no better when framed as a failure to apply the correct test.

Alternative classification of Book

[38] As the Book is to be reconsidered by the Board, this point does not strictly arise. We will nevertheless deal with it because the issue will no doubt be raised with the Board as part of its reconsideration. Counsel argued that when finding the Book was deemed to be objectionable, the Board had failed to consider a restricted classification under s23(3). The issue is whether such a restricted classification is available in respect of a publication deemed objectionable under s3(2). The structure and content of s23 require examination to resolve this issue. Section 23(1) places a duty on the Classification Office to examine a submitted publication in order to determine its classification. Section 23(2) requires the Classification Office to classify the publication in one of three ways: unrestricted, objectionable, or restricted. Section 23(3), which is expressly stated not to limit the Office's power to classify a publication as restricted, allows it to classify a publication which would otherwise be objectionable as restricted so that the publication can be made available to particular persons or classes of persons for certain defined purposes.
[39] The starting point is the definition of the word "classification" in s2. For the purposes of the Act classification means the classification given to a publication under s23 or s55 or s56. Sections 3 and 23 serve different purposes. Section 3 deals primarily with the meaning of objectionable as its heading states. Section 23, as its heading also states, deals with the classification process. A publication deemed objectionable under s3(2) is not by dint of that deeming thereby classified as objectionable under s23. The classification process under that section is a separate one. It necessarily requires a publication deemed objectionable under s3(2) to be classified as objectionable, subject to any exception to that requirement within the terms of s23 itself. It is at this point that s23(3) comes into play. It provides the sole exception to the otherwise mandatory requirement that a publication deemed objectionable under s3(2) be classified as objectionable. In terms of s23(3) a publication that would otherwise have to be classified as objectionable may be classified as a restricted publication in order that it may be made available to particular persons or classes of persons for any of the listed purposes. It follows that the Office or the Board may classify a publication deemed objectionable under s3(2) as restricted under s23(3) if satisfied that it should be made available on the very limited basis envisaged by s23(3). This approach to the inter-relation between the provisions in question is fairly open on the language used and is one which should be adopted in terms of the Bill of Rights considerations discussed earlier. The alternative view that once deemed objectionable under s3(2) a publication cannot be given a restricted classification under s23(3) is semantically justifiable in light of the fact that s3(3) and s3(4) do make reference to classification, but that view would not recognise the purpose and effect of the Bill of Rights, and in particular s6 thereof.

Conclusions - Formal Orders

[40] For the reasons given we allow the appeal and express under s70 of the Act the opinion that in this case, by following the Full Court in the News Media case, the High Court erred in its approach to the role of the Bill of Rights in the interpretation and application of the provisions of s3(2) of the Act. The consequence of such error is that the High Court wrongly found that there was no error of law in the Board's decision. There was such an error in respect of the Book and the photographs classified as objectionable under s3(2). That error was in not giving consideration to the relevant provisions of the Bill of Rights in interpreting s3(2) and applying it to the publications concerned. We therefore set aside the order of the High Court dismissing the appeal and substitute an order:

• [a] allowing that appeal
• [b] setting aside the classification of the Book and photographs deemed objectionable under s3(2)
• [c] directing the Board to reconsider the classification of those publications in accordance with the law as expressed in this judgment.

[41] In the circumstances there will be no order for costs in this Court or below.

Solicitors
N B Dunning, Wellington, for Appellant
Crown Law Office