Censorship Law: Interim Restriction Orders
Article by Bill Hastings, Chief Censor
03.05.2006
An interim restriction order can be put on a film only when someone
has asked the Film and Literature Board of Review to review the Office of Film and Literature Classification's classification of the film. Any person may seek a review of a film’s classification, but unless the person is a Crown official or has rights in the film, permission from the Secretary of Internal Affairs must be obtained first.
To date, the Secretary has never withheld permission. The Act does not say what the Secretary must consider when deciding whether or not to give permission. If the review is not "frivolous or vexatious", then the Secretary will give permission to seek a review of the film’s classification.
Once the Secretary gives permission for a film to be reviewed, the person seeking a review, or anyone else likely to be affected by the review, may apply to the President of the Board for an interim restriction order. An interim restriction order can be granted if the President is satisfied "that it would be in the public interest" to grant it. The Classification Office has no power to grant an interim restriction order.
Once again, the Act does not say when it is in the public interest to grant an interim restriction order. Three decisions which granted interim restriction orders (Bully, Visitor Q and Baise-Moi) said that it was in the public interest to grant an interim restriction order if it was intended to exhibit the film either before the period in which a person may seek a review has expired, or before the substantive hearing can be held. The reasoning was that it is in the public interest that a review is "meaningful", and exhibition of a film before it can be reviewed makes the review less meaningful.
Two decisions refusing interim restriction orders (Y Tu Mama Tambien and The Piano Teacher) said that it is not in the public interest to grant an interim restriction order when the person seeking the film’s review cannot make out an arguable case for review because they have not seen the film. The reasoning is that unless an arguable case has been made that the Classification Office is plainly wrong, then it is in the public interest that confidence in the integrity of the classification system is maintained by allowing exhibition of the film to go ahead.
An interim restriction order has very specific effect. It is not a classification. It says nothing about whether or not the film has been classified correctly. It simply treats the film as though it were objectionable for very particular purposes, in order to preserve the position of the person seeking a review until the review hearing is held. It is at the review hearing, not the interim restriction order hearing, where argument on the film’s classification will be properly considered. An interim restriction order means that a film cannot be supplied, advertised or exhibited to the public for gain, it cannot be shown to anyone under the age of 18, and it cannot be exhibited or displayed in a public place. It remains legal for the film to be possessed, imported, given or viewed in private, in accordance with its current classification.
An interim restriction order can be revoked by the President at any time, and anyone affected by it can apply to have it revoked. It expires automatically when the Board finishes its review and issues its classification.
The Society for the Promotion of Community Standards was successful
in stopping the screenings of Baise-Moi, Visitor Q and Bully at the Incredible Film Festival. The Society was unsuccessful in stopping
screenings of The Piano Teacher and Y Tu Mama Tambien at the New Zealand Film Festival. All five films were classified R18
by the Classification Office.(1)
Some reports have said that the three Incredible Film Festival films
were "banned". This is inaccurate. It is more accurate to say that the
exhibition of the films was temporarily stopped. In all five cases,
the Society invoked previously unused provisions of the Films, Videos,
and Publications Classification Act 1993 to obtain what are called "interim
restriction orders".
(1) The Classification Office further restricted Baise-Moi and Visitor
Q to film festivals and tertiary institutions. On a review sought by
the Society, the Board removed the further exhibition restrictions from
Baise-Moi, and as a result of an appeal by the Society to the High Court,
Baise-Moi is now unclassified. The classification of Visitor Q remains
the same.