Reading our censorship act

Michael Reddell NZ politics, Uncategorized

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”.

OFLC 1

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

OFLC 2

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

OFLC 3

Then we get the key bit of section 123 –  complete with the odious concept of “strict liability offences”

OFLC 4

Breach that and the penalties are draconian.

oflc 5

(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

OFLC 6

But knowing possession does

oflc 7.png

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.

OIA OFLC

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.

49 thoughts on “Reading our censorship act”

  1. Thanks for the excellent research Michael. I think Franz Kafka would find much inspiration here. I am becoming rather uneasy about the government’s handling of this terrible tragedy. Was the Censor instructed to make his bizarre decision seven days after the document’s release? How absurd that he exempts the media and academics who have provided some of the most extreme and irresponsible commentary on the issue. Why are some Green politicians permitted to continue spewing their hate-filled bile against New Zealanders of European descent? Is Saint Jacinda playing good cop to their bad cop – they are members of her government after all? Are draconian restrictions on our freedoms now intended, just as the alleged terrorist is said to have hoped according to media reports.

    Liked by 1 person

    Reply

  2. I almost again fell out of my chair at how draconian the 14 year sentence is for video images although horrific in real life looks just like a video game that you would see on any gaming computer. It seems rather ridiculous that scenes of death seen everyday on your computer totally acceptable as a game is a crime with a 14 year jail sentence when the real life scenes are hardly indistinguishable from a game.

    I feel we are too much at the whim of government officials wielding too much power at their discretion without the usual democratic checks and balances. I keep saying we are now communist NZ where we have fewer and fewer rights as a democratic free people.

    Liked by 1 person

    Reply

  3. The Chief Censor it seems is frequently someone who many might doubt has much idea about New Zealand “public good”. I seem to remember they have frequently been art or film critics. Why that would give them “expert judgement” is open to debate. I guess the logic would be with regards to nudity in a publication, art/film critics should know the difference between art and porn, but maybe they don’t. One Chief Censor I recall was from Canada and had never previously lived in NZ. You could argue a foreign national who had never been resident in NZ won’t understand the culture and values of the nation to make an expert judgement on New Zealand public good. This is an office that the public should have some say into who is appointed.

    It certainly seems absurd that the writing of Adolf Hitler seem to be considered less of the threat to public good than the rambling bigotry of Tarrant. The extreme views of a tiny minority will find soul mates internationally irrespective of what NZ authorities decide on banning. But these types are always in a tiny minority and banning their ideas only enable them to play the martyr. Better to leave their words open to public scrutiny where the vast majority will argue against and reject.

    Has anyone heard of the NZ Nazi Party recently? I remember back in the 1970’s an odd character called Colin King-Ansell would quite frequently be interviewed on television, as leader of the NZ Nazi Party. King-Ansell used to wear a black leather coat and comb his hear with the Hitler style fringe. A handful of people followed his politics, but mostly he and those like him were mocked and regarded as fools. They pretty much faded away. I’m yet to see any evidence Tarrant had a NZ following or was part of an “Alt-Right” group in NZ.
    But even if there was, don’t make them into martyrs but curtailing their views or freedom. The vast majority of decent people will reject their ideas even without censorship.

    Liked by 2 people

    Reply

  4. I agree, Michael, that banning the manifesto in its entirety (rather than redacting any specific exhortations to violence) is a bureaucratic overreach. I wonder, however, that even if journalists are allowed to read it, how much of what he has written will be deemed to be sub judice until after the trial, given that Tarrant has been charged with murder (albeit of someone still alive!)
    The law around that legal restriction has never been very clear to me (apart from obviously not opining on the accused’s guilt or otherwise).

    Like

    Reply

    • In my view it is even worse to ban it for everyone except elite groups, such as the left-dominated media elements of whom have already demonstrated they cannot be trusted to report fairly or impartially on what the document says.

      Liked by 2 people

      Reply

    • interesting issue re sub judice. I guess it might depend on whether he is eventually charged with terrorism offences or simply with 50 murders (and other injuries/attempts to kill). If the latter, the text might not be material to the case (altho Tarrant himself would no doubt repeatedly try to introduce the ideas).

      Liked by 1 person

      Reply

  6. Hi Michael

    Thanks again. I agree with you that this was a bad decision. Having read the document on Saturday, a very bad decision. It needs to be in the open. And those who might come to be “harmed” by it will find it having been inspired to do so by looking at unclassified material, and will do so regardless of the law.

    I also think your analysis on the discretion afforded to the discretion of the RBNZ Governor is solid – beyond my expertise to find any fault with anyway.

    But I wonder whether you have issues with administrative discretion more generally? Or is it a matter for you of considering the functions of the actor, the content of the decisions to be made, and making a call from there? Is there an executive/administrative distinction involved?

    Because it seems to me that the function of censoring, so rich in factual variability and context, is one really better left to discretion rather than prescription. Would defining “public good” take us anywhere, given how open-textured a definition would need to be?

    Agree that some improvement to appointment might be a good manner of hedging against ‘bad’ decisions, and agree that the role of political accountability might be a useful tool to work in.

    I’m taking quite an interest in the discretion/regulation/institutional trust nexus at the moment. Niall Ferguson, the historian, wrote about it in his book The Great Degeneration, and has recently had an excellent chat with the former Australian Deputy PM John Anderson on taking this stuff in (and China stuff FYI – it’s on YouTube and well worth 1:40 of your time).

    Ferguson makes the argument that public trust in institutions is eroded in a cyclical manner when discretions are reduced. He says that culture switches from aiming for a ‘public good’ decision to aiming for a compliance-focused decision. He talks of unintended consequences of prescription, increased arbitrage potential, the ‘rule of lawyers’, and so on. Just more games, really. His key example was the levels of regulation failing to ‘prevent’ 2008, and laments the demise to the “eyebrow of the Governor of the Bank of England”. And in the end Ferguson gets to saying that if you believe in both of Smith’s Theory of Moral Sentiment and The Wealth of Nations, you should believe in discretion.

    I have seen this dimension in my work as an RMA laywer, in particular with prescriptive standards for nutrient runoff and plans ballooning in length. And to be honest you see it everywhere. There’s a circular issue relating to and linking civic glue, shared social values, trust in institutions, and the scope of discretion available etc. And I’m no longer inclining to a ‘more is more’ view.

    So, anyway. A general or case by case position on administrative discretion?

    Thanks and Regards

    Liked by 3 people

    Reply

    • Interesting and thought-provoking comments. I think my general pushback would be in the direction of “there is too much law” – it is the prevalence of that law that forces us down the path of discretion, since one can’t write detailed rules for all circumstances, notably the unforeseen ones. And the growing stock of law is partly a phenomenon of increasing technical complexity, increasing risk aversion, but also (in social areas) increased diversity. Whatever the positive merits of diversity (beyond just race/sex to ideological diversity) the harder it is to sustain social convention and taboos that act as restraints within communities. Instead, the law is weaponised – and to some extent becomes necessary, but in the process more power (including discretionary power) is handed to agents of the state.

      In this specific case, the law simply doesn’t seem fit for purpose (and neither, it appears, is the bureaucrat charged with implementing it). What might have helped (for example) might have been some principles to take account of in assessing the “public good”, altho such lists have their own (litigation) risks, and still might not deal adequately with an event out of the blue.

      In a case like this, if there is to be a power to ban I would still prefer it was exercised by the government (Cabinet) or Parliament. We can toss them out, we can demand answers etc etc. In principle, the independent agent looks more detached, but his preferences are not obviously any better than yours or mine, and he has no legitimacy mandate or serious accountability. Paul Tucker’s book, which I wrote about here last year, set out principles for having significant powers delegated to independent agencies. I don’t believe this decision (whichever way it went) passes that test.

      (I wrote about some of Tucker’s principles in this post https://croakingcassandra.com/2018/05/11/revisiting-the-nzsf/ )

      Like

      Reply

  7. Most dictionary definitions of ‘Objectionable’ are circular but this one makes sense “causing or tending to cause an objection, disapproval, or protest”.
    If hypothetically a whtie supremacist group published photos of the 3 year child who was murdered in the mosque and used it to celebrate the crime – say on a coffee cup – and I came across it I would lose self-control and smash it. I would do so however many police were present. My defence would be the item was very objectionable particularly with that child looking like my grandson did at that age and my reaction was simply normal behaviour for a human.
    At present that manifesto is similar – if it was freely available many members of the public would be offended so the censor chose to make it not freely available.

    What the public finds distressingly objectionable is irrational. Try distributing videos of domestic animals being killed – it would not just be vegans taking offense. Public executions were banned long before the death penalty was removed.
    I found Brenty’s comments about administrative discretion persuasive. The censor’s decision can be protested; in many countries objections to censorship will get you locked up.

    Like

    Reply

    • I am not persuaded. Good law is about establishing the intent of parliament and a definition spells out the limits of discretion which limits absolute power. Government officials with too much power gets corrupted. It goes back to power corrupts. Absolute power corrupts absolutely. With a draconian 14 year jail sentence, the threshold for the definition of objectionable should be very high.

      This government for all its transparency promises is so far the least transparent NZ government ever. What Jacinda Ardern wants, she gets at the cost of our democratic rights and freedom. Her decisions are rushed and lacking in analysis and this style is being reflected in all her government officials. Shockingly shoddy decision making, the mark of a communist hardliner.

      Like

      Reply

      • Ggs, this is the heart of the issue. Increasingly, our rulers seem to be delegating decisions to “experts”, and their exercise of discretionary power is increasing the self-belief of these bureaucrats that they are in fact experts. I have been shocked by the extent of this in the RMA context, and the censorship law is another such area. This tendency to treat political decisions as being essentially technical ones to be resolved by experts will not end well: the Brexit rebellion can be seen as a reaction by the ordinary voters of the UK against the overweening power of the Eurocrats.
        For the censorship law itself, the source was the halcyon days when Lady Chatterly’s Lover was the sort of obscene publication that would cause public order to break down if it became widely available. Like the US Supreme Court judge, the lawmakers could not define obscenity, but they felt that right-minded people would recognise it when they saw it. The heavy penalties are, I think, more recent, and intended to hammer the possessors of child pornography. Nothing in the law suggests that Parliament had given any thought to the possibility that the Act might be used to restrict what used to be called seditious publications, and the law is being applied well outside its considered scope.

        Liked by 3 people

    • But the dictionary definition of “objectionable” isn’t what matters here. It is the legislative framing, specifically that (highly non-specific) ‘likely to be injurious to the public good”.

      Like

      Reply

    • The discussion should focus more directly on the Chief Censor’s reasons for the classification.

      ” An objectionable classification for this publication is considered to be a justifiable limit on freedom of expression under the Bill of Rights Act in this case.”

      “There is an important distinction to be made between ‘hate speech’, which may be rejected by many right-thinking people but which is legal to express, and this type of publication, which is deliberately constructed to inspire further murder and terrorism,” says Mr Shanks.

      “It crosses the line.” He explains that it is the same line used to ban some ISIS material..

      Elsewhere the CC has been more specific . The address of one or two other mosques were mentioned in the manifesto. But these are publicly known addresses – so the ban would serve little purpose in protecting the people in those mosques.

      it was inferred that some of the manifesto might be a how to document that would assist a future terrorist. There is a discussion in the manifesto on the choice of weapons. the gun was selected because it would spark a huge scrap over the second amendment in the US, which would lead to its political collapse.

      There is a direct incitement to murder. specifically Anglea Merkel, the major of London and one other , but nothing at all relating to NZ. The one line on this exhortation does not make the whole document deliberately constructed to inspire further murder and terrorism.

      Overseas jurisdictions, which are Tarrant’s real targets hav not banned the manifesto.

      The censor has argued that he has not banned Mein Kampf , because while Hitler said he wanted to get rid of the jews, he did not explain how he intended to do it. this is a bit silly .There are any number of publications out there that are not banned that explain exactly how to do it.

      The CC says that the general public will not be harmed by the document and that his target is the small minority who might be influenced by it. This of course will be entirely ineffective. Psychopaths will find the document online. If anything the ban might promote Tarrant’s cause. It plays to a narrative that the authorities are suppressing the truth because it is so ‘powerful.’

      The censor has to set all of this off against s. 14 of the Bill of rights which appear to set a very strong presumption of our freedom to receive information. I don’t think he made the case. and that his explanations of the content of the document are in important respects misleading.

      A question arises as to the status of the manifesto in the trial. Tarrant will play it. He may well read it out in its entirety How will the court treat this banned document? Will reporting be suppressed?.

      Liked by 3 people

      Reply

  10. Michael: At this point right now, not to censor Tarrant’s writings is equivalent to falsely shouting ‘fire’ in a crowded cinema. There is an immediate matter of public safety that is paramount right now. What would happen say if some other attack happened through some nutcase out there reading his sick s..t [emended MHR]?

    You mention Hitler and Mao’s writings in a previous post. Firstly Mao’s writings at no point advocate for the killing of innocent people – although obviously agitating for revolution is violent in itself. Hitler’s writings do not produce a clear and present danger – it is unlikely that anyone is going to run amok in New Zealand right now against Slavs and Jews, say, and turn east for lebensraum.

    So even if one could argue that Tarrant’s manifesto was no more ethically or morally objectionable than Hitler and Mao’s writings, they do present a clear and present danger right now in New Zealand, that Mein Kampf or Mao’s Selected Works simply do not. The latter two works are objects of mainly historical curiosity. Perhaps in future Tarrant’s also will be – but not right now.

    Like

    Reply

    • It is a plausible argument. I’m not convinced by it, but even if I were it might be grounds for (say) a six month ban with a sunset clause, not a ban in perpetuity (which this one appears to be).

      As it is, it is a case of balancing interests, probabilities etc. I realise you yourself aren’t making this argument, but champions of a surveillance state, implicitly or explicitly run such “needle in the haystack” arguments.

      Like

      Reply

      • Michael —if the outright demonisation of a very small minority in New Zealand, calling them ‘invaders’, labelling them as a threat to not only the way of life, but to the very biologically existence of the majority, and then even justifying the slaughter of the children of this minority is not objectionable then what the [deleted vulgarity – MHR] is?

        Public safety trumps other rights at a time like this. We don’t subordinate everything to the idea of free expression. No society does. Otherwise there would be no laws from anyone running butt naked through queen street daubed with swastikas. But Tarrant’s manifesto goes way beyond this.

        The fact is one can put a narrative together with superficially plausible logic to justify any atrocity. And people will be sucked in by it.

        And if you were a member of a very small minority group, I am sure that you would want material such as Tarrant’s banned outright, if not for your own safety but for the safety or your children. To provide that feeling of security and safety which is the right of every single citizen and resident of New Zealand, the censor has done the right thing. To disseminate and propagate Tarrant’s manifesto is nothing more than a direct incitement to violence and that in any jurisdiction in the world is simply unacceptable.

        Like

      • First, if you want to comment here (and mostly I welcome your comments) please cut out the vulgarity. I’ve had to emend/delete words from both posts this morning. The standard of acceptable language here is what I’d accept in my house.

        As for the substance, as I noted there is certainly a balance of interests/values. As I noted in the original post, I do not advocate abolishing all censorship, and as I noted to a tweeter, I’ve no problem with the video being censored (in whole or in part), on grounds of the dignity and privacy of dead and injured. And the “running thru the streets” point seems to be about acts – we prosecute Tarrant with the full weight of the law for the shootings – not about publications.

        As for the point in the final paragraph, I’m not sure I agree (but it is hard to tell of course) but in general I don’t think public policy (or the criminal system more specifically) should weigh that heavily the feelings and desires of victims. Criminal cases are the Crown and the accused, for good and proper reasons.

        I somewhat agree with your final sentence – especially the “propagate” bit – but (a) possession and private study, as a citizen of an affected polity, is different, and (b) I didn’t read his document as “direct incitement to violence”. If anything he seemed more interested in by the particular violent act, sparking political chaos etc and societal breakdown.

        Not directly to your point but I thought this quote from a NZ blog made a point that resonates with me. http://kiwiwit.blogspot.com/2019/03/thoughts-on-christchurch-attacks.html
        “I hope that New Zealand will transcend this tragedy and become a stronger society as a result, but I think we have been damaged in way that is not immediately obvious, much as America was damaged by 9/11. It seems entirely possible that we will descend into the tribalism that increasingly characterises political engagement in much of the rest of the Western world – intolerance that breeds even more intolerance and ultimately that leads to tit-for-tat violence. It will be a tragedy of another kind were that to happen in the least insane country in the world. That, of course, was the killer’s intent. ”

        I think those risks are slightly (perhaps v slightly) diminished if citizens here – as those in the rest of the world are – are free to read Tarrant’s piece. One alternative is that people see the Left weaponising the event, and their take on it (informed by his narrative – since without it he would be “just” an (alleged) mass shooter from nowhere), with only the left-liberal elites (almost all the media, almost all academe) having access to it.

        Liked by 1 person

      • In Buddhism, the reverse swastika is a symbol of love and peace. Nothing wrong with running around butt naked with swastikas if you believe it is a symbol of love and peace.

        Like

      • And, in my view, such acts (at least in public) should be prosecuted, as disorderly or offensive conduct (as the chap was who dumped a truck load of pigs’ heads outside a mosque). But where to draw the line is hard, and appropriately the subject of political debate. There are many actions of our govt and local council – and of major corporates – that as a conservative Christian I find quite offensive (and actually on which points, I suspect many observant Muslims would share my response).

        Like

    • I think the “clear and present danger” to New Zealand right now comes from the extreme Left who are using the tragedy and the information vacuum caused by the Censor’s ruling to smear New Zealanders of European descent. They are doing the alleged terrorist’s work for him.

      Liked by 2 people

      Reply

      • Are you completely deluded? How many New Zealanders of European descent have been murdered on account of their race? And do you really think there is any danger of the ‘extreme left’ running amuck killing any people simply on account of their race or religion? Of course not. The probability of that is exactly zero.

        Left wing ‘terrorists’ even in their heyday during the 1970s would typically assassinate politicians, or businessmen, etc – violent yes, but rarely would they carry out the sort of wanton slaughter we saw in Christchurch.

        The fact is the most violent political movement in this country, is the extreme right. They have been an issue, particularly in the South Island, and the fact that they murdered and beheaded a Korean backpacker 10 years ago, was almost completely ignored by the media. Imagine if it had been a Muslim group or any other that had carried it out – the full force of the state would have come down on them – as happened to Tame Iti and the Tuhoe.

        These groups should have been monitored in exactly the same way, if not with more scrutiny, than radical islamist groups. If they had been, the likelihood of the Christchurch atrocity would have no doubt been greatly reduced. That they were not demonstrates that the authorities have very racialised notions of who and who is not violent —and that is white privilege.

        Like

      • I’m pretty sure Odysseus wasn’t talking about left-wing terrorism in NZ.

        But, lest we forget, there was the violence perpetrated abroad by the IRA, the PLO, the ANC and so on. Some aimed at “leaders”, some about mass terror. Many will have sympathised in part or in whole with the underlying motivating causes that drove those organisations, and there was often violence on the other side too, but it was “terrorism” nonetheless.

        Like

      • The right to Free Speech is the cornerstone of our democracy. Transparency of government is the right of every citizen. Banning this and banning that is just completely alien to a free society. Our Chief Censor Shank is wrong and have overstepped his boundaries. He should step down as he does not know his limits and is out of control.

        Liked by 1 person

    • “Feeling safe” is a ground that could be well overused to slowly erode essential freedoms in New Zealand. Safety as a feeling is also highly subjective. I’d strongly prefer not to have “feeling safe” as a ground for anything. Some people might feel safe because all police are wearing weapons on their hips now. It doesn’t make me feel safe at all.

      Liked by 1 person

      Reply

      • I’d strongly prefer not to have “feeling safe” as a ground for anything.

        I suspect you may change your mind if someone circulated a document calling for the extermination of you or people who thought like you, and had just acted on the impulses created by the thoughts expressed in the same document just 10 days ago just down the road slaughtering 50 people.

        Liked by 1 person

      • @Mark It is precisely for this reason I support freedom of speech – it is not inconceivable that conservative Christians could be at the receiving end of persecution of exactly the kind you mention, as they are right now in Pakistan, Iran India and other countries. Preserving freedom of speech is a bastion against that sort of persecution happening – not a guarantee, but it certainly supports it. It is very easy to surrender freedoms to feel safe, and all but impossible to get them back once lost. As Benjamin Franklin once said “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

        Like

  11. I think the discussion should focus more directly on the Chief Censor’s reasons for the classification.

    “An objectionable classification for this publication is considered to be a justifiable limit on freedom of expression under the Bill of Rights Act in this case.”

    “There is an important distinction to be made between ‘hate speech’, which may be rejected by many right-thinking people but which is legal to express, and this type of publication, which is deliberately constructed to inspire further murder and terrorism,” says Mr Shanks.

    “It crosses the line.” He explains that it is the same line used to ban some ISIS material..

    Elsewhere the CC has been more specific . The address of one or two other mosques were mentioned in the manifesto. But these are publicly known addresses – so the ban would serve little purpose in protecting the people in those mosques.

    it was inferred that some of the manifesto might be a how to document that would assist a future terrorist. There is a discussion in the manifesto on the choice of weapons. the gun was selected because it would spark a huge scrap over the second amendment in the US, which would lead to its political collapse.

    There is a direct incitement to murder. specifically Anglea Merkel, the major of London and one other , but nothing at all relating to NZ. The one line on this exhortation does not make the whole document deliberately constructed to inspire further murder and terrorism.

    Overseas jurisdictions, which are Tarrant’s real targets hav not banned the manifesto.

    The censor has argued that he has not banned Mein Kampf , because while Hitler said he wanted to get rid of the jews, he did not explain how he intended to do it. this is a bit silly .There are any number of publications out there that are not banned that explain exactly how to do it.

    The CC says that the general public will not be harmed by the document and that his target is the small minority who might be influenced by it. This of course will be entirely ineffective. Psychopaths will find the document online. If anything the ban might promote Tarrant’s cause. It plays to a narrative that the authorities are suppressing the truth because it is so ‘powerful.’

    The censor has to set all of this off against s. 14 of the Bill of rights which appear to set a very strong presumption of our freedom to receive information. I don’t think he made the case. and that his explanations of the content of the document are in important respects misleading.

    A question arises as to the status of the manifesto in the trial. Tarrant will play it. He may well read it out in its entirety How will the court treat this banned document? Will reporting be suppressed?.

    Liked by 1 person

    Reply

    • Sorry, I omitted the following paragraph from the CC’s explanation

      We have dealt with terrorist promotional material before which was deliberately designed to inspire, encourage and instruct other like-minded individuals to carry out further attacks. For example we have found a number of ISIS publications to be objectionable in previous decisions. This publication falls in the same category.”

      Could be useful to follow up
      on the ISIS decisions. taking the Tarrant manifesto as a whole I dont think it was deliberately designed to instruct. The encourage and inspire tests could capture a wide range of documents.

      Like

      Reply

    • There is a direct incitement to murder. specifically Anglea Merkel, the major of London and one other , but nothing at all relating to NZ.

      come on…lets not split hairs. He just massacred 50 people in Christchurch, New Zealand

      Like

      Reply

  13. Perhaps we need the Alt Right to help us in New Zealand have a debate about what we see as the boundaries to free speech and what constitutes incitement to hostility and contempt in the words of the Human Rights Act.

    But, as a recent NZ Herald editorial noted, Southern and Molyneux’s views are easily accessed online and not all “have a right to room on other platforms that try to serve the public interest”.

    This is a moment to debate that very question.

    * Distinguished Professor Paul Spoonley, Massey University, has researched far right politics in the UK and New Zealand for almost 40 years.
    https://www.nzherald.co.nz/hawkes-bay-today/opinion/news/article.cfm?c_id=1503459&objectid=12101943

    Like

    Reply

  14. Objectionable.
    Norms are decided by society . Eric Kaufmann goes into that in Whiteshift. When powerful people sanction and the deviant apologizes the norm is strengthened. On Fair go the perpetrator would cower but overtime they became cocky. Donald Trump is the classic example – he stood up to the media. They are trying to censor the Hard Stuff not the obviously evil as they would wave that about?

    Like

    Reply

  15. Thanks Michael, I don’t want to prolong this discussion but my concern is that this terrible event is being used to promote racial disharmony. I think a prosecution against a certain Green MP in particular under Section 61 of the Human Rights Act could provide a useful test case regarding what constitutes “hate speech”.

    Liked by 1 person

    Reply

  16. Has there been any evidence of anyone in New Zealand supporting the shooter or the call to violence in the Manifesto? I am aware of the Australian MP blaming the immigrants for the shooting, but that is the closest I have heard in support of the shooter, and not even from New Zealand.

    Without clear evidence of extremists that may be turned to action by the manifesto, I don’t see the possibility of another shooter being strong enough to validate the ban on the manifesto, especially given the continued ease of acquiring it anyway.

    Like

    Reply

    • “Intellectuals are more totalitarian in outlook than the common people. Most of them are ready for dictatorial methods so long as they feel it is on ‘our’ side.”. George Orwell.

      Like

      Reply

  19. The FVPA is problematic as you point out, but it is just as concerning that in this case the Chief Censor acted without regard to the Act which establishes his powers and authority.
    He claims a right and a power which the Act does not bestow upon him – the right to “fast-track” the classification process and in doing so to ignore critical provisions of Sections 13, 19 and 20 of the Act. So in banning “The Great Replacement” he acted ultra vires and followed an unlawful process. Consequently I would submit that the decision itself was unlawful and is invalid.

    Like

    Reply

Leave a comment