Objectionable publications [Updated]

Two years ago, the New Zealand Police tried to have banned a few issues of NORML's "High Times" magazine. As I had a short piece in one of the relevant issues critiquing the ludicrous New Zealand Drug Harm Index, I would have been a contributor to a banned publication, had the Censor's Office decided to give the police what they'd wanted.

Individuals knowingly in possession of objectionable materials can receive up to five years in prison.

Among the books banned by the New Zealand Censor as Objectionable (or under classifications brought over from prior censorship tribunals, including "indecent", "unconditional indecent") are:

• A Guide to Growing Marijuana in Cool Climates
• Indoor Marijuana Horticulture
• Indoor Marijuana Cultivation
• Inside Linda Lovelace (available from Amazon here)

You can search the Register of Classification Decisions; alas, they run everything through a back end that precludes direct linking to decisions. 

The Office has been reviewing some of its old classifications; "Bloody Mama", which had been banned by the Indecent Publications Tribunal in 1971, is now listed as "unrestricted". I expect that if you were in possession of something that was banned in 1971 and has not been revisited, you might ask that it be re-examined; I don't know the extent of the legal risks. 

The banned book list includes a lot of titles that indicate they would be of interest to the homosexual community, to the S&M community, to growers of marijuana, and books whose titles suggest incest or paedophilia. 

If you search on "Fanny Hill", a 1748 book (Wikipedia), you'll find a film classified R18 (1984), a book classified Indecent 18 (1965), an audio recording deemed not indecent (1975), a book deemed indecent (1981), and various others ranging from R16 to indecent. I have absolutely no clue whether, in New Zealand, it is legal or illegal for me to go to Project Gutenberg and download the text of Fanny Hill. Drilling to the Gazette decision, it looks like a specific edition of the text was banned because of accompanying photographs; there is no indication of that the pictures were of minors.* The 1965 decision restricted possession to those over the age of 18; I expect that that is the decision that continues to hold for the text.

Booksellers NZ writes:

There are approximately 1300 titles which are ‘objectionable’ (banned) in New Zealand. Approximately 1225 were classified as indecent by the Indecent Publications Tribunal (IPT) in the period 1963-1994. The remainder are decisions of the Office of Film and Literature Classification (OFLC).

Unless a more recent decision has been made on any title, a classification decision is still in force. For example a book banned by the IPT in 1963 will still be banned, unless the edition is sufficiently different to constitute a new publication.

Most books which have been ‘banned’ deal with weapons and drug manufacture and other criminal acts, dog fighting and the sexual exploitation of children and young persons. It is likely a number of older titles if they were classified today, under current legislation, would still be classified as ‘objectionable’. This is because of the activities that these books support.

A couple of months ago, Ronald Clark was jailed for downloading Japanese anime cartoons. Now Clark was hardly a harmless guy: the Daily Mail reports he had prior convictions for indecently assaulting a teenaged boy. And maybe a guy like that should have a ban on possessing manga as part of his post-release conditions if the psychologists reckoned, for this individual, that they were more complement than substitute for actually hurting kids. But it seems a bit 'inside the asylum' that you can be arrested for bringing Japanese comic books into the country, despite that absolutely nobody was harmed in their production.

Why bring this up?

The Government is increasing the penalties for being in possession of objectionable publications. Nobody's going to defend those who produce child pornography. And even those who view those produced images or films do harm by increasing demand for those products; some argue that viewing such films or pictures adds additional harm by re-victimising the subject even where the subject never knows it's happened.** But not all people convicted as being in possession of objectionable materials are either producers or consumers of actual child pornography.

Here's The Press:

Most than 400 people had been convicted of the offence of having objectionable material between 2004 and 2011, most of which where sexual images of children.

Of these, only 33 per cent were jailed. ''That is totally unacceptable and I think we need to deal with it and this is what this bill is all about,'' Ms Collins said.

''I'm telling the judges that we're changing the law so that they can get tougher and of course they are bound by sentencing guidelines.''

Now here is the Bill. Everything in the General Policy Statement talks about the evils of child pornography.

A key purpose of this Bill is to implement the Government's post-election action plan to increase penalties for producing, trading, or possessing child pornography. The Government's objective is to ensure that sentences for child pornography offences reflect the seriousness of the offending and send a strong message that the exploitation and abuse of children will not be tolerated.

To achieve that key purpose, and otherwise improve objectionable publications and indecency legislation, this Bill—

• increases maximum penalties for possession, import, export, supply, distribution, and making of objectionable publications – which include child pornography publications:

That's all well and good, but "which include" is a bit broad. Looking further into the preamble, we find:

Clause 6 amends section 131A, which relates to offences of possession of objectionable publications, knowing or having reasonable cause to believe that the publications are objectionable. The current maximum available penalty for an offence against section 131A(1) committed by an individual is imprisonment for a term not exceeding 5 years, or a fine not exceeding $50,000. The amendment increases that maximum available term of imprisonment from 5 years to 10 years.

Clause 7 inserts a new section 132B, which contains a presumption of imprisonment for certain repeat offenders. New section 132B applies (new section 132B(1)) only to an offender who—

• has been convicted of and is to be sentenced in respect of a specified publications offence committed after the commencement of new section 132B (the repeat offence); and
• before the conviction for the repeat offence was entered, had been convicted of 1 or more specified publications offences committed before or after that commencement.

A specified publications offence (new section 132B(2)) is one against a provision specified in section 132A(1)(a) to (e) if the publication that was the subject of the offence does (to any extent) any or all of the following things (specified in section 132A(2)(a) to (c)):

• promotes or supports, or tends to promote or support, the exploitation of children, or young persons, or both, for sexual purposes:
• describes, depicts, or otherwise deals with sexual conduct with or by children, or young persons, or both:
• exploits the nudity of children, or young persons, or both.

Again, look at the "any or all". This looks to include Japanese comic books if the judge thinks that reading manga promotes child exploitation. And it might include 1748's Fanny Hill, depending on which decision of the Censorship Office you want to run with  if you have an illustrated edition.*

I'm no lawyer, but this doesn't look like the "Outside of the Asylum" kind of legislation for which I thought we here aimed. Hopefully the Select Committee will fix things so you can't get 10 years in jail for looking at comic books. And gawd help you if there are any instructions for growing marijuana somewhere in the comic's text.

* UPDATE: It is impossible for me to link here to the Gazette decision of 5 February 1981, but the text suggests that it was a specific issue of Fanny Hill that included a series of photographs that was banned. There is no indication in the decision that the photographs were of children. Here is the text:

A sample copy of Fanny Hill was imported commercially and seized at Auckland in September 1980. As the importer has disputed forfeiture the Customs Department has referred the publication to the Tribunal for classification, prior to the commencement of condemnation proceedings pursuant to the Customs Act 1966.
Fanny Hill is a paperback publication, supposedly based on the original classic by John Cleland. Samples of these writings have been selected from the original book, and used in conjunction with a series of photographs which place considerable emphasis on sexual activities, to give an impression that the paperback is an accurate precis of the original classic. In fact, there appears to be little relationship between the text and the photographs, even though the photographer has dressed his models in period costume. In view of the nature of the publication, there is a distinct lack of honesty of purpose. Accordingly, though the original classic is not indecent, we classify this edition of Fanny Hill as indecent.

So the original .txt should not be viewed as indecent. Wouldn't it be nice if the database search said as much!

Update 2: The Censor's Office has confirmed that the one illustrated edition is the one that is banned. However, the Censor's Office also does not know which edition that is. The only thing they know about it is what is in the Gazette. So if you have some pre-1982 illustrated version of Fanny Hill, it may or may not be the one deemed objectionable by the Censor in 1981. If it is, then you can go to jail for a decade. If it isn't, enjoy!

** It being impossible to discuss the pros and cons of such a view without risking being fired, I will abstain.