The Justice Department has given much attention to the question as to
the efficacy of the amending Act introduced in 1954. We had the
advantage of reading the report presented by the Department to the
Minister of Justice, and we set out below certain portions of the
report which we as a Committee think worthy of notice. The report says,
_inter alia_:
"(1) We think that the substantive changes made in the special
legislation in 1954 have been beneficial, and we strongly recommend
that they be retained. The Indecent Publications Act 1910, as it
previously stood, dealt with sex and with sex alone, and this is
not sufficient. It is, for instance, doubtful if the Spillane
novels or some of the books in the Milestone series could
successfully be objected to merely on grounds of sex; but they are,
nevertheless, of an immoral and mischievous tendency and should not
be allowed to continue in circulation. They might be described as
'sadistic' in the true psychological sense in that they combine sex
and violence.
"There has been some suggestion that the Act leaves too vague just
what is indecent and that the word 'indecent' should be defined
with precision. In the nature of things there are, however, very
great difficulties in attempting such a definition. It is
significant that no precise definition of indecency exists either
in the principal Act or so far as we are aware in the legislation
of any other Commonwealth country.
"The present state of affairs might be dangerous if prosecutions
could be taken on the decision of police officials in any town in
New Zealand. Whatever may be said in theory, however, the fact that
prosecutions can be brought only with the leave of the
Attorney-General is, we think, a sufficient guarantee that the law
will be applied uniformly and reasonably. Moreover, there is a
further safeguard in the right of appeal to the Supreme Court
against all decisions of a Magistrate under the Act.
"We believe that the bookselling trade is quite happy with the
present substantive law as it is now being administered, and we
firmly hold the opinion that the best course is to leave the
substantive provisions of the 1954 Act largely as they are.
"(2) The registration provisions are a rather complex way of
achieving their object, which is to enable the Court to put a
seller out of business if he is convicted of an offence against the
Act and if the Court believes his conduct is such as to warrant
this penalty. We think that this object could be achieved by giving
the Court this power directly. It could be provided that on
convicting any one under the Act the Court may make an order
prohibiting him for a certain period from carrying on the business
of selling books or periodicals. The provisions as to registration
could then be repealed."
Some members of the present Committee felt that this power should be
exercised only in the case of a second or subsequent conviction.
"(3) The marking requirements of the Act are not well adapted to
their object, and, as we have mentioned, it has proved necessary to
a large extent to dispense with compliance with them. We think it
is anomalous that the law should continue to require marking while
almost every publication is exempted.
"In place of the present marking provisions we suggest that every
New Zealand publisher should continue to be required to print his
name and address on what he publishes, that the importer of
overseas periodicals for sale or distribution be required to supply
to the Department of Justice a list of the titles imported by him,
and that every one other than a retail bookseller who carries on
the business of importing books be required to supply to that
Department a list of the publishers whose books he imports.
"(4) There is one anomaly in section 5 (1) (_d_) of the principal
Act as set out in the 1954 Act. This is the provision which
requires the Magistrate to take account of the persons, classes, or
age groups to whom a document is sold or is intended or likely to
be sold _and the tendency of the document to deprave or corrupt
such persons_. The words in italics are appropriate in the
Victorian statute from which they were copied because the
common-law test of depraving or corrupting applies in Victoria, but
they are at best unnecessary in New Zealand where the Act lays down
its own test--namely, that the act of the defendant must be of an
'immoral or mischievous tendency'.
"(5) The 1954 Amendment contains some ambiguities and anomalies in
matters of detail which should be remedied when any further
legislation is brought down. These defects were discussed in an
article by Professor I. D. Campbell in the 1955 _New Zealand Law
Journal_, page 294.
"_New Provisions Suggested_: (1) As we have said, we are not
anxious that the ordinary law-abiding bookseller or distributor
should have to undergo the stigma of a criminal prosecution, and
this was the main reason for entering into arrangements with the
Associated Booksellers and Gordon and Gotch. At present, however,
criminal proceedings afford the only real way of testing the
position even where there is an honest difference of opinion. We
think a better procedure could be devised, and the Select Committee
may be invited to deal with this matter.
"(2) A number of comics which are not strictly indecent within the
meaning of the Act are nevertheless objectionable from other points
of view. In many the ethical standards of the characters are low.
The quality of the print and illustrations varies from the
indifferent to the very poor, and must have a serious effect on
children's eyesight. In a number of comics the grammar and
vocabulary are likewise bad.
"It is said that children learn from what they see and hear around
them. If this is so it would appear that the assiduous reading of
comics tends to counteract the work of teachers which costs the
country so much.
"An Inter-departmental Committee in 1952 recommended the
introduction of a system of registration. The Committee's original
recommendations were: that publishers or importers of comics should
apply for registration of every title and that only suitable titles
should be registered. The sale of unregistered comics was to be an
offence. This procedure may be preferable to the subsequently
suggested system of automatic registration followed by
de-registration upon complaint.
"Registration of comics, of course, amounts to censorship. There
is, however, no question of literary merit or the spread of
knowledge, and the view that an adult should in general be free to
read what he likes does not apply in the case of publications
primarily intended for children. If it is accepted as proper to
censor films there can be little objection to censoring comics.
"We therefore suggest that the Select Committee might consider
whether an authority might be set up to approve and register
comics. There could be an Appeal Board similar to that in respect
of films to consider complaints against any decision of the
registering authority.
"If this suggestion is unacceptable an alternative might be an
amendment to the legislation to be introduced enabling the Court in
the case of comics to take into account as one of the factors in
considering whether they are objectionable matters of grammar,
language and visual standards."
The present Committee is of opinion that there is a good deal of force
in the suggestions put forward in this part of the report of the
Department of Justice, and our view is that these suggestions should be
referred to the Minister of Education with a request that he consider
them favourably and forward his conclusions to the Government.
"(3) We have come across cases in which publications have been
advertised to such persons and in such a way as to endeavour to
sell them or attract the public on the basis of their emphasis or
alleged emphasis on sex, horror or violence.
"If a publication--for instance, a medical book--is displayed in a
shop window open at a page of illustrations this would probably be
an offence against the present law even though the book may itself
be unobjectionable. There is however, another type of case which
would not be caught by the law as it stands, but which we think
equally deserves to be prohibited. An example of what we have in
mind is an advertisement which is put out by a mail-order firm and
is obviously designed to 'sell the book on its sex.' This open
appeal to salacious instincts is most objectionable and we can see
no justification for allowing it. Whether or not the publication
itself is indecent, we think the type of advertisement we refer to
should be prohibited by law.
"_Amendments of Principal Act_: Prior to 1954 the Indecent
Publications Act 1910 had stood without alteration for over forty
years, and although its main principles are still sound revision is
badly needed. Indeed, last year's amendment in certain respects
increased rather than decreased the difficulties. In our opinion,
the best solution is to reconsider the legislation as a whole and
to deal with the topic of objectionable publications in a new and
self-contained Act. This would, of course, take some time. We have
notes of many points to raise with the draftsman, but we cite
others of more general significance.
"(1) We consider that parts of the present section 6 are obsolete
and should be repealed. Section 6 enumerates certain classes of
works which are _prima facie_ indecent. Among these are 'any
document or matter which relates or refers, or may reasonably be
supposed to relate or refer, to any disease affecting the
generative organs of either sex, or to any complaint or infirmity
arising from or relating to sexual intercourse, or to the
prevention or removal of irregularities in menstruation'.
"In so far as this part of the section would prevent the
advertising of useless or harmful products, it is unnecessary in
view of the Medical Advertisements Act 1942. In so far as it
represents a general attitude it seems out of date now that the
matters referred to are discussed with far less reticence than when
the Act was passed. The reference to drugs or methods for procuring
abortion or miscarriage in the later part of the section might be
retained, but it belongs more properly in the Crimes Act or the
Police Offences Act.
"(2) At present section 157 of the Crimes Act overlaps the
provisions of the Indecent Publications Act 1910, and the tests it
lays down are expressed in very different language. This section is
little used, but it seems undesirable that there should be two
different tests for what is really the same offence. We recommend
the repeal of section 157 in so far as its subject matter overlaps
the Indecent Publications Act 1910.
"(3) If the legislation is rewritten, we suggest that consideration
be given to the incorporation in the Act of the 'dominant effect'
test laid down in an American case, the Ulysses case.
"The consolidation and rewriting of the existing legislation would
be of real benefit. The nature of the topic, however, demands that
any general consolidation should receive careful and even cautious
consideration. We do not think that in this matter urgent or speedy
action is called for."
The Committee has examined all of these suggestions and recommends that
they should receive the very favourable consideration of the Government.