Almost every country places some restrictions on what may be published, although the emphasis and the degree of control differ from country to country and at different periods. In New Zealand the law prohibits the publication of seditious and defamatory writings, or matter that is in contempt of Court, but, as might be expected in a democratic country of puritan background, censorship is primarily associated with obscenity or indecency. Traditionally, indecency has been regarded as confined to sexual matters. Since 1954, however, it has, in law, extended also to matters of horror, crime, cruelty, or violence. For the purposes of the new Act of 1963, indecency consists in describing, depicting, expressing, or otherwise dealing with matters of sex, horror, crime, cruelty, or violence in a manner injurious to the public good.
The publication of obscene writings was a common law offence in New Zealand, but became statutory when the criminal law was codified in 1893. There were also summary offences relating to obscene publications. The Indecent Publications Act of 1910 marked a new approach. It created various summary offences and laid down the matters to which the Court was to have regard. One liberal feature was the relevance of literary and artistic merit, evidence of which was admitted by the Courts. This was not achieved in England until 1959. On the other hand, jury trial was deliberately excluded as being inappropriate in this field, and ignorance of the character of a publication was not a defence.
The Act of 1910 left the determination of indecency to the ordinary Courts, and a decision on a book could be given only on a criminal prosecution or seizure proceedings. Except with obvious pornography this could be unfair to the individual and disadvantageous to the community. Court proceedings might draw attention to an undesirable and perhaps little-known work. A case could come before any Magistrate or Judge, whose opinions might colour the result. Partly for these reasons, there grew up an informal censorship by the Customs and latterly the Justice Departments, with an outside advisory committee considering literary questions. Book sellers and importers were given informal opinions which were recognised to have no legal force but were almost always accepted. Since 1954 there has been what amounts to open censorship of children's comics. The Customs authorities also devised an informal scheme of categories into which publications were placed, thus avoiding the simple in-or-out distinction of the Act.
The law was revised in 1963 and the new Indecent Publications Act must be seen against this background of practice as well as law. Although important, the changes are less radical in practice than in law. The greatest innovation is the transfer of power from the Courts to a single administrative tribunal with an appeal to a bench of three Judges of the Supreme Court. The tribunal has been empowered to classify publications as indecent, or indecent in the hands of particular age groups, or indecent except for specified classes or purposes. The effect should be liberalising, since it avoids any possibility that, in the words of a contemporary English Judge, the standard of decency will be what is fit for a 14-year-old schoolgirl. Some judgments in the case of the book Lolita in 1961 went close to suggesting this. Also liberal are the principles which the tribunal is directed to follow. Besides the literary or artistic merit of the publication, they include its dominant effect and the author's honesty of purpose, tests enunciated in the American and English Courts.
The new Act does not create pre-censorship in the usually understood sense, since publication does not require prior approval. On the other hand a book, magazine, or periodical may be submitted to the tribunal at any time and a decision obtained without involving prosecution or seizure. The restrictions which the tribunal may place on the publication of its proceedings and decisions – by no means as great as suggested by some when the Act was being passed – are a half-way house between wholly open Courts and administrative procedure in private. The most serious feature is the ability of the tribunal to prevent newspaper discussion and criticism of its decisions. One may hope, however, that the tribunal will use its powers sparingly.
It is improbable that the new Act will present any threat to serious works or works with real claims to merit. Indeed, fewer of these may find themselves held wholly indecent and adults may perhaps lawfully be able to acquire currently excluded works of Lawrence, Nabokov, etc. Doubtless a more vigorous assault will be launched on trashy books or periodicals exploiting sex and sadism. The ability of any tolerable law to exclude undesirable or supposedly undesirable publications is, however, limited. Short of putting up a woollen curtain between New Zealand and the outside world, we are necessarily exposed to the wind of standards in overseas countries from which most of our reading matter comes.
by Bruce James Cameron, B.A., LL.M., Legal Adviser, Department of Justice, Wellington.