Court of Appeal quashes ban on "anti-gay" videos. - 5-Sep-2000
The Court of Appeal has issued a landmark unanimous decision defending the "right to freedom of expression", including "the imparting of opinions of any kind" (s. 14, NZ Bill of Rights 1990). It ruled against a ban imposed by the Film and Literature Board of Review on two Christian videos Gay Rights/Special Right and Aids, upheld by the High Court on appeal, and both were found to have "erred in law" and their decisions quashed. The Board had reached a decision "which no reasonable Board properly instructing itself, could have made."
The videos were referred back to the Board for re-classification, a decision that only Judge Thomas dissented from. He stated: "In my opinion the Board exceeded its jurisdiction [in classifying the videos] and the High Court was in error in not reaching that conclusion." He could see no point in remitting the matter back to the Board for it to only confirm that it lacks jurisdiction.
The Appeal Court unanimously confirmed the Board's lack of jurisdiction, for the content of the videos were found not to fall within the "objectionable" categories "such as sex, horror, crime, cruelty, or violence" as required under section 3(1) of Classification Act 1993. The Board had failed to link the subject matter at the "gateway", that is, sex or a matter akin to sex, with the test which is provided for determining whether that subject matter is "objectionable": namely: is it "injurious to the public good"? The High Court erred in concluding that the reference to s21(1) of the Human Rights Act in s3(3)(e) of the 1993 Act justifies including "sexual orientation" within the s3(1) "gateway".
The fundamental error on the part of the High Court and the Board was in treating s19(1) of the Human Rights Act (dealing with the rights of everyone to "freedom from discrimination") as prevailing over section 14 of the Bill of Rights. "Gay"- activists who hailed the video ban as a "victory marking the culmination of a long-term political strategy" will be very disappointed with the decision. The messages of both videos contain clear calls to the Christian community to treat homosexuals with compassion and love and each contains an opening "Warning": "Viewer discretion advised".
- Challenge Weekly