COMMENT FROM THE CAPITAL Who Determines “The Public Good”?

Press, Volume CII, Issue 30171, 1 July 1963, Page 12

COMMENT FROM THE CAPITAL Who Determines “The Public Good”?

(From Our Own Reporter) WELLINGTON, June 30. No issue is more delicate; no legislation is likely to evoke keener debate or sharper feelings in Parliament this session than the Indecent Publications Bill

A draft of the bill was introduced in the House of Representatives at the end of last year and. although it is likely to reappear with modifications, it raises fundamental questions which are new, not only to this country but wherever the English legal system prevails. The bill, as at present drafted, is likely to arouse criticism of at least three innovations The first is the definition of ' indecency as “describing, depicting, expressing, or otherwise dealing with matters of sex. horror. crime, cruelty, or violence in a manner that is injurious to the public good ’’ The bill no longer specifies certain subjects as indecent in their own right, as did the Indecent Publications Act of 1910 These were mainly irregularities and diseases relating to sex It emphasises that the test of indecency shall be the manner in which a subject is treated

Nor does it enlarge the oresent field in which the test will apply: but it adds the words “injurious to the public good.” This leads to the second objection by critics of the bill,

which prescribes that the determination of what the public good may be will not be in the hands of the public itself—that is, in the judgment of juries, who may have the assistance of expert evidence —but in the hands of a government-appointed tribunal headed by a retired judge or experienced lawyer. The tribunal has no precedent in the law of other Commonwealth countries except in two Australian States. Tasmania and Queensland. The argument in favour of a tribunal of five, including two members with special qualifications in literature or education, is that it will produce more consistent ruling and sounder ruling that juries with a special appreciation or knowledge of literature The prospect of some consistency in decisions has appealed to importers and distributors, who have in the past been faced with decisions made privately by a committee of officials from the Customs and Justice Departments and the Crown Law Office.

The third source of criticism is likely to be the authority given to the tribunal to forbid the publication, except in the New Zealand Gazette, which has a circulation of 800 copies, of i’s proceedings and decisions The argument behind this change is that publicity given to the existence or nature of indecent publications only increases the demand for them The bill at present requires that the tribunal of the Court of Appeal shall not prohibit the publications of decisions on important ot difficult questions. (The prohibition

does not apply to quarterly journals or the publication of the proceedings or decisions in a book which is not a periodical).

If, however, the publication is not available after the indecency has been established, the possible harm from publicity is likely to be much less than the doubts and dangers implied in virtual secrecy. When the House of Commons considered the revision and consolidation of English laws on obscene publications, a select committee which considered the "Jenkins Bill” in 1959 found that the longstanding test of obscenity would not practically be improved It considered that the words used by Chief Justice Cockburn in 1868 “whether the tendency of the matter charged as obscenity is to deprave and corrupt. ” might be difficult to define further and were preferable in default of a better alternative

The prime legal objection to the Cockburn ruling was that the law should be certain: tnat people should know certainly what they might do and what they might not do Not only does the term “public good” appear to be even less capable of certain definition. but the possibility of virtual secrecy at the discretion of the tribunal further increases the uncertainty about wha* may or may not be nublished. Opponents of censorship may object further that the censorship of morals is not. far removed from censorship x'or political and philosophical reasons. There are examples In the

United States of the banning of publications ostensibly on the grounds of indecency but which are really inseparable from racial issues Such delecate decisions could be made after a hearing attended by only a few members of the public and prohibited from publication in the usual channels of public information An amendment making certain that all appeal decisions are published would at least ensure that seriously contestable rulings are made widely known Other countries have adopted the practice of permitting authors to defend their works in court, even though an author may not be a rty to the ease The New Zealand bill leaves it to the discretion of the chairman of the tribunal to decide who shall give evidence One of the greatest difficulties that the tribunal will face is the lack of information on how reading affects behaviour Little scientific investigation has been undertaken to illuminate this issue It is at least possible that sexual desire and a pre -upation with violence or horror stimulate the demand for pornography and books on war and violence rather than the reverse There appears to be no evidence that people aw on what they read What research has been conducted m tact tends to show that mass communications confirm and reinforce existing attitudes The opinion is widely held that the effect on children of materia] with emphasis on violence and cruelty is brutalising and blunts the finer feelings of conscience and

sympathy However, researches have shown that delinquents read much less than law-abiding people and have given little prominence to reading as a cause of delinquency

Nevertheless, the bill is In line with the tendency of the law in Britain and ora the Continent which is to give special protection to children and to assume that adults are capable of protecting themselves from the influences of books, pictures, and recordings Several Continental countries double penalties in th* cases of indecent publications which involve youth The New Zealand bill provides that the tribunal may determine indecency of a publication with regard to its cireulation among persons under a specified age It may rule that a publication is restricted to persons above that age If the tribunal is to see that such rulings are observed, then it is probably essential that full publicity be given to its decisions

Whatever the arguments over the details of this bi!) the replacement of the present. inadequate system of censoring books will be welcomed and will justify the determination of the Ministe of Justice to pursue * cause which he thinks is worth while without fear of th* battles he is likely to encounter in his party caucus and the House

One of the first tasks of the tribunal would almost certainly be to review the Customs Department's lists of about 200 books which are totally prohibited or are exclusive to scientists and the medical and legal professions