The reasons given for imposing an order stopping anyone from being able to access Into the River do not justify it. The order is wrong.
Yesterday I wrote this post on the decision by the President of the Film and Literature Board of Review, Dr Don Mathieson, to issue an "interim restriction order" in respect of the young adult novel, Into the River. The effect of that order is to stop anyone from selling, lending or giving the book to anyone else, until the Board gets around to deciding what classification it thinks the book should have.
In my post I said:
So, yeah - this interim restriction order decision looks at least a bit questionable. And perhaps if it ever got before a court, the court would overturn it.
Having now seen the reasons given by Dr Mathieson for issuing the order, I'm going to go further in my assessment. It should not have been given on the basis outlined. It is a mistake.
First of all, there's something completely missing from Dr Mathieson's analysis. The New Zealand Bill of Rights Act 1990 (NZBORA). It isn't mentioned at all, despite the fact that Dr Mathieson is bound by it when issuing his order.
And what is more, there is absolutely no attempt to balance the possible harms caused by allowing Into the River to be freely available against the extraordinary restrictions that this order places on everybody's freedom of expression. In fact, the potential effect of this order on freedom of expression is not considered in any way. The fact that the order means, for instance, that if I as a 40-something-year-old go down to the Hocken Library to borrow the book to see what all the fuss is about, the librarian there is legally obligated to refuse to lend it to me.
Is that right? Are there potential harms that justify imposing that limit? Is the extent of the limit proportionate to the objective of avoiding those harms? No idea - because the decision to grant the order is completely silent on the matter.
This absence of analysis in itself makes Dr Mathieson's order unlawful. Because the failure to consider the NZBORA implications is fatal to the process by which the order was made. Full stop. End of story.
Furthermore, the reasons that Dr Mathieson does give for his order simply do not establish the necessary grounds for issuing it. Section 49(1) says that "the President may, if satisfied that it is in the public interest to do so, make such an order." So that's the necessary test to meet.
Why, then, does Dr Mathieson think that it was in the public interest do make the order?
1: The classification of Into the River under the Act is a matter of wide public concern,as evidenced by the volume of submissions to the Classification Office and published comments.
Of course, this makes the mistake of equating "the public is interested" with "the public interest". These are not the same thing at all.
2: The decision of the Classification Office would radically alter the decision of the Board of Review.
That may be true. But how does such a "radical alteration" mean that it is in the public interest to stop everyone in New Zealand from being able to lend, borrow or buy this book? Also, any reclassification by the Office of a publication previously classified by the Board will "radically alter" the Board's decision. So is Dr Mathieson now saying that these interim orders will become standard procedure whenever the Office changes the Board's classification?
3: It is particularly appropriate that the Board should have an opportunity to consider the publication afresh without being inhibited in any way by any distribution occurring between now and the date of the Board’s decision.
It is true that as a result of the Office's decision, a bunch of people (those under 14) can now get hold of Into the River and read it. But why must this be prevented in order to avoid "inhibiting in any way" the Board's consideration? After all, the book did not receive a R14 classification from the Board until the end of 2013, meaning that it was freely available to everyone for months prior to that decision without "inhibiting" it. So why is it "particularly appropriate" to stop under-14s from getting and reading the book for a couple of months now?
4: It is debatable, and a matter of independent public interest, whether the Chief Censor acted lawfully under section 42(3)(b) of the Act in deciding that “special circumstances” exist.
This is none of Dr Mathieson's, or the Board of Review's, business! In essence, Dr Mathieson is saying that he thinks the Office of Classification might have made a mistake by agreeing to reclassify Into the River within 3 years of its original classification being issued (something that can only happen in "special circumstances").
However, the Board of Review is not there to act as a court to judge the rightness/wrongness of everything that the Office does. The right of review is restricted to:
[anyone] dissatisfied with any decision of the Classification Office with respect to the classification of any publication shall be entitled, on application, to have the publication reviewed by the Board.
The review process is then restricted as follows:
Every review under this Part shall be by way of re-examination of the publication by the Board without regard to the decision of the Classification Office.
In a nutshell, the Board of Review can look to see whether the Office's classification decision on a particular publication is the right one - should it be unrestricted, R14, R18 or objectionable - but not whether the Office's decision to make a reclassification decision is correct. So whatever qualms Dr Mathieson may personally harbour about the Office's decision to reclassify the book, they aren't relevant to his decision on whether to issue an interim publication order "in the public interest".
5: It is highly arguable whether the Classification Office has reached the correct conclusion on the application for reconsideration before it.
OK - so that means the Office may have got it wrong. In which case, some people (under 14 year olds) may get hold of Into the River and read it when they shouldn't. But by the same token, the Office may have got it right. In which case, those people are now being denied access to a book they should get to read. Along with everyone else in New Zealand!!!!
That's the nub of the matter. Is it in the public interest to deny everyone in New Zealand access to a book in order to safeguard some 12-or-13-year-olds who maybe shouldn't be allowed to see it? If so, why? We just aren't told.
6: The correct classification of Into the River under the Act will operate as a semi-precedent, and will exert a significant influence upon other decisions portraying teenage sex and drug-taking.
Right! So the Board of Review needs to get its decision on appeal right. Why, however, should nobody be able to access the book until they do so?
Reading through all of the above, I can't help but think that Dr Mathieson has confused "the public interest" with "the Board of Review's interest in not having its authority undermined by the Classifications Office". Which are not the same things. At all.