I’ve been reading the Films, Videos, and Publications Classification Act 1993. Fortunately, it isn’t a long act (by the standards of our Parliament), having a mere 177 clauses.
I dipped into it initially wanting to better understand what David Shanks, the unelected bureaucrat operating under the title “Chief Censor”, had been up to in deeming the Brenton Tarrant “manifesto” “objectionable”, and banning the rest of us from ever (re)reading it. Regular readers will know my longstanding concerns about unelected unaccountable bureaucrats exercising substantial policy power. At least in this legislation there is provision for substantive appeals to a review board, and for appeals to the courts on matters of law. That is more accountability/potential for restraint than exists around the choices of, notably, the Governor of the Reserve Bank.
I’ll come back to the Tarrant case shortly. But as I read the Act – and here I should stress that my personal stance would not favour the abolition of all censorship – it became increasingly apparent what an odd act it is. There doesn’t seem to be a proper purpose statement, of the sort common in more recent legislation. But perhaps the key point is found early on when Parliament attempts to define “objectionable”.
Which might look like a solid start, except that I turned to the Interpretation section of the Act (section 2), and between “public display” and “public place” (both of which were defined) there was no definition of “public good”. So the basic and overarching standard against which publications etc are to be assessed, and may be banned, simply isn’t defined, and appears to be solely matter for one unelected bureaucrat and – by dint of rights of appeal – the Film and Literature Board of Review, and perhaps eventually some judges (aka, committtees of ex-lawyers) to decide. On a whim and some personal preference?
Being a conservative Christian, I happen to believe that the availability of publications promoting pre-marital sex, homosexual sex, adulterous sex and so on is “likely to be injurious to the public good”. I quite get that most of modern New Zealand society disagrees and I don’t attempt to push the point. But it seems just weird that the standard is so (un)defined by Parliament, just deferring the decision ultimately to some unaccountable people and their particular whims and preferences. It is not even like the US, where the Supreme Court has to at least make up some grounding for its more controversial rulings in the specific provisions of the constitution.
And it just got odder as I moved on to section 4
According to Parliament, the “public good”, and what might risk being injurious to it, is a matter for “expert judgment”. What was Parliament thinking, other than passing the buck and abdicating its own responsibility?
And what expertise then is required to be appointed as Chief Censor? Well, none really. Section 80 of the Act deals with that appointment, and all you really need is a Minister of Internal Affairs to nominate you, and the concurrence of the Minister of Women’s Affairs (why?) and the Minister of Justice. The relevant sub-section notes that
In considering whether or not to recommend to the Governor-General the appointment, under subsection (1), of any person, the Minister shall have regard not only to the person’s personal attributes but also to the person’s knowledge of or experience in the different aspects of matters likely to come before the Classification Office.
Nothing about political philosophy, nothing about the theology of the body, nothing about the family, not about history, nothing about the political or judicial traditions that have underpinned our society for centuries. Nothing really that gives an appointee any real expertise in determining “the public good” – and in fact, given that Chief Censors have tended to come from the Wellington bubble, probably less well-equipped to assess “the public good” (as citizens might define it) than the first 100 names in the phone book.
What of Mr Shanks specifically, the incumbent (and relatively new) Chief Censor? His background is almost entirely as a lawyer for government departments, and then as HR and corporate manager for one in particular (MSD). There is nothing there that suggests any particular ‘knowledge or expertise’ in the substantive matters his office deals with (sex, violence, horror….or terrorism), let alone any background or expertise that gives us any reason to suppose he could “expertly” (or otherwise adequately) define “the public good” for the rest of us. Almost his entire career has been built around enabling ministers to do their thing. Nothing in his background suggests any interest in, or passionate commitment to, an open and accountable free society.
And, in fairness, perhaps much of what the office does, doesn’t really require that set of big picture set of skills. But something like the Tarrant “manifesto” clearly does. Nonetheless, Mr Shanks – the public service lawyer – has decided it is “objectionable”, in terms of the Act, and “likely to be injurious to be the public good”.
Having made his determination a whole series of offence provisions (Part 8 of the Act) cut in. There seem to be two broad categories. The first relate to “distribution” where distribution is defined thus
Then we get the key bit of section 123 – complete with the odious concept of “strict liability offences”
Breach that and the penalties are draconian.
(Another case where fines have got out of whack with imprisonment: for most people 14 years of your life is worth a lot more than $200000).
What about possession? On that point, there does seem to be a distinction based on knowledge or intent. Inadvertently or unknowingly having an objectionable publication doesn’t carry stiff penalties
But knowing possession does
Since “the public good” isn’t defined by statute law, and we’d had no similar “manifestos” relating to events in New Zealand history, if Mr Shanks and his inspectors start coming after people who had the document before Saturday, everyone could reasonably argue they had no “reasonable cause to believe” the document was “objectionable”, in terms of the statute. None of us can read the mind of the government lawyer, Mr Shanks.
But to get back to the Shanks decision, what is remarkable about his statement on Saturday is that it contains no reference to, or discussion of, the “public good” statutory test at all. In most of it, he simply runs his personal views of the document, perhaps views he was encouraged to by Police (and perhaps ministers?). Perhaps befitting his (lack of) background in such things, there is no discussion at all as to how the public good might well be served by people being able to read, understand (and disagree, rubbish, or even agree with some or all of the text – some of which is reported to have been substantially factual) and then debate – in an informed way – a document that appears to reflect the thinking behind one of the most heinous crimes in New Zealand history, an event that is near-certain to be grist to the mill of all sorts of political debates for decades to come.
I can (at a pinch) see how one might reflect on that point and still reach the conclusion Shanks did, but there is no sign in his statement that he has even considered the issue. Let alone of “expert judgment” at work – after all, what expertise does he have? Where is the evidence that any “expert” judgement was involved, let alone any “experts” other than those on the staff of government agencies?
Now it is true that, buried further down in section 3, there is specific reference to terrorism. The Act notes that “particular weight” should be given to “the extent and degree to which, and the manner in which” the publication “promotes or encourages criminal acts or acts of terrorism”. I’m sceptical that is what the document did, but even if to some extent it does, “the public good” appears to be the overarching test. It just cannot make sense – after an event of such defining horror as the Christchurch attacks – for the substantial document the (alleged) shooter wrote to explain himself to be kept from public view forever. Not even made available with specific deletions, but the whole document is simply banned.
But, of course, there is an ability to apply for exemptions (although you have to pay even to apply), but the release seemed to suggest that Mr Shanks might allow exemptions for some in the media (at least the bits he counts as “safe”) and parts of academe (and MPs might well be able to argue they needed it for their official duties), while forbidding it to the general public; the people who actually vote and set the ultimate direction for the country, including how we respond to these attacks. Would you trust the Police and intelligence agencies to tell you what to take from the attack and attacker? I wouldn’t (in general and in principle, let alone in these specific circumstances). Would you trust a government that does nothing to damp down the inflammatory rhetoric of senior MPs from its support partners? I wouldn’t. Let alone a government 10 years hence that might want to use the event for its own purposes (viz Simon Bridges this morning calling for more personal privacy to sacrificed to the state).
And in many respect Mr Shanks’s ban is pretty futile anyway, as he more or less acknowledges in his statement
Those engaged in further reporting on the Christchurch attack may be tempted to consider the use of quotes from the publication that have already been used in other media reports.
“That use of excerpts in media reports may not in itself amount to a breach of the FVPCA, but ethical considerations will certainly apply,” said Shanks.
If I read that rightly, it isn’t illegal to quote from the document, just to possess it. Overseas people can and will possess it. They will, and should, debate, argue about it, agree and disagree with it, and (presumably) mostly deplore the actions associated with it. But that in turn leads to the bizarre conclusion, that the people whose polity is most directly affected can only count being able to debate the document to the extent that (a) they can copy bits of it (or analyses of it) from overseas sources/publications, or (b) presumably, to the extent that having once read it they have a retentive memory. That latter might be one thing now, it is quite another 10 or 20 years hence, as generations grow up who barely remember the events of the last ten days themselves.
It is simply a bad decision, made by someone who looks ill-equipped to have made it, probably under considerable influence from the Police (perhaps of the government), with no opportunity for a wider range of perspectives to have been heard. It doesn’t seem to have been a decision Mr Shanks was compelled by law to have made; rather he exercised his huge personal discretion in ways that will damage our democracy and confidence in it if it is not quickly reversed. What is perhaps chilling is that there has been not a word from the government ministers or MPs – let alone the Prime Minister – or the political Opposition (who seem mostly focused at present on keeping in lock step with the government, when they do well and when they are falling down). Sure, Shanks is independent, but there would have been nothing improper in MPs, ministers, or senior Opposition figures making clear that they thought a wrong and counterproductive decision had been made. Instead, it looks as though they are simply ready to go along. It will look a lot as if the “establishment” is keen on having debate, if at all, only on its terms. That is never a good basis for anything, and particularly not for confidence in the workings of a free and open society.
As many people have pointed out, by Shanks’s logic all manner of historical documents – that are freely available – would in fact be banned. It serves the public good to be able to better understand Hitler or Mao or the Unabomber or the IRA, the PLO, or the Irgun Gang. It won’t serve public confidence, or the public good more generally, to attempt to maintain some half-cocked ban on the Tarrant “manifesto”, in a world in which writings about it – and quotes from it – will be readily available in mainstream publications, serious and otherwise, internationally. In addition to more serious risks, it will also bring Mr Shanks and his office into disrepute.
I’ve lodged an OIA request for the relevant documents.
In the meantime, I hope someone is able to seek a formal review of the decision. Weirdly, under the law, it appears that only Tarrant (‘owner, maker, publisher”) is free to seek a review. Anyone else requires the explicit permission of the Secretary of Internal Affairs and there is no presumption that such leave would be granted, by someone who works for the government.