30 MARCH
THE NEW ZEALAND GAZETTE
935

Love type of fantasy which was discussed in the decision relating
to the November 1981 issue of Penthouse classified as indecent in
Decision 1033.

The dominant effect of Penthouse:

It is clear as might be expected, that Penthouse still has the
presentation of sex as its dominant effect. The magazine uses letters,
cartoons, feature columns, fiction and non-fiction and photographs
to provide its readers with a veritable kaleidoscope of sexual
content. Some of the material is helpful or harmless, more is aimed at
the prurient and lascivious aspects of sex. The Tribunal has
accepted that Penthouse contains some articles of literary and social
merit. However, the fact that a magazine contains content of a
positive nature does not give a publisher carte blanche so far as the
remainder of the publication is concerned. As we stated in Decision
No. 1033:

“… we think we can justifiably declare a publication
unconditionally indecent if, in bringing about part of its
dominant effect, it carries a section too far. If this were not
so Penthouse or any similar magazine could present a section
or portfolio of gross photographs of any kind it wishes, with
complete immunity, because of the existence of other
material in the issue.”

The Tribunal reiterates its concern at the emergence of multiple
model pictorial sections in Penthouse. We feel that when such
sections are added to the remaining content, the publication
progresses from merely being offensive to being injurious to the
public good. We find most of the issues containing multiple model
scenes depicting sex and violence, lesbianism and intimate
heterosexual scenes to be indecent.

This classification covers the January, March, April, July, August,
September, and October 1982 issues. The only exception to the
classifications concerning multiple models are in relation to the
February issue because the photographs, while explicit, did not
depict such a high degree of intimacy as contained in the other 2
heterosexual portfolios. In permitting the February issue an age
restriction classification we are stretching tolerance to the limit. The
November issue we find unobjectionable because of the
presentation we referred to earlier.

We are unable to find in the remaining provisions of section 11
any consideration which would help to save the issues listed above
from a classification of “indecent”. We do not traverse the various
matters in detail, having set out the principles in Decision 1033.

We classify the February, May, June, November, and December
publications as indecent in the hands of persons under the age of
18.

However, our function does not end here because Mr Heron
urged us to make a section 15A order imposing an age restriction
of 18 on Penthouse for the next 2 years even if we should find that
the preponderance of issues were indecent. In those circumstances
he said the Tribunal still had power to make the restriction order
sought, but should direct that the magazines which were thought
indecent should be re-submitted for classification so that they
individually might be declared indecent. Although he had argued
to the contrary in a previous case (see Decision No. 485), Mr Heron
was prepared to accept that the rather roundabout course of action
described above was envisaged by the provisions of section 15A
because the Tribunal on 2 previous occasions (Decision Nos. 845
and 1038) had ruled that publications may be referred to the
Tribunal for individual classification notwithstanding that a 2-year
restriction classification is in force in respect of that publication.

Mr Heron submitted that we should accede to the approach he
put forward because section 15A was enacted so as to facilitate the
free flow of controversial magazines and to avoid the constant
reference of serial publications to the Tribunal. While we agree with
some aspects of Mr Heron’s interpretation, we think it desirable to
make some comment of our own on the purpose of section 15A.

In order to circumvent the necessity for such periodical or serial
magazines being constantly seized and referred to the Tribunal the
Legislature has permitted the Tribunal a discretion to make a 2-
year forward classification of further issues of the publication in
circumstances where it is able to form an opinion of the general
nature of the publication. The Legislature has obviously thought
that the Tribunal may be able to form an opinion on the perusal
of no less than 3 issues of that publication, all published within a
period of not more than 12 months.

We think it important to note in our view that the power to make
a restriction order only exists in circumstances where the Tribunal
has confidence that further issues of the publication will fall within
the boundaries of the publications it uses to consider whether a
section 15A order is merited. We think there is considerable
strength in Mr Heron’s submission that as a condition precedent
to our ability to impose a section 15A order and an age restriction
in the present case, we should find that the preponderance of the
particular issues before us were not indecent. Conversely, we think
that where the Tribunal anticipates that a publication may
deteriorate, or where it is unhappy with the standard of the issues
referred to it, a section 15A order should not be made.

Mr Leloir for the Comptroller of Customs submitted that if the
Department did not have a section 15A order which imposed a
blanket guideline in respect of Penthouse issues, chaos could reign
in respect of the seizure of Penthouse imported by private
individuals coming into New Zealand. Not only would customs
officers have difficulty knowing the classification which attached to
individual issues of the magazine, the situation was even more
complicated because sometimes overseas travellers were able to
purchase copies of the magazine published in advance of those
available in New Zealand.

As well, Mr Heron strongly submitted that an age restriction
together with a section 15A order should be made in the public
interest. He said such an order would remove uncertainty as to
classification for the distributor, and would also protect people
from prosecutions that might follow a Penthouse issue that is only
declared indecent after it has been distributed.

We sympathise with both the Comptroller’s and the distributor’s
position in this matter. However, the Tribunal must not lose sight
of the fact that the difficulty which precludes us from making a
section 15A order is caused by the standard of content the publisher
chooses to place in its magazine. If the objectionable scenes were
omitted from the issues we classified indecent, then there is little
doubt the Tribunal would have made the order sought by Mr
Heron. The Tribunal should not be pressured into making a section
15A order because the Customs Department and the distributor
may be caused considerable inconvenience. Indeed Mr Heron
disclaimed the suggestion that the commercial interests of the
distributor should prevail over the public interest. We agree. While
section 15A is a “convenience” section in that it helps to avoid the
constant reference of a serial publication to the Tribunal, we feel
that caution must be invoked in relation to its use lest the
commercial “convenience” of a publisher gain more importance in
the eyes of the Tribunal than the interests of the general
community.

In any event we do not think the distributor’s position to be
totally uncertain. We were informed by Mr Heron that proof or
advance copies of Penthouse are usually available some time before
the main importation of that issue into New Zealand. Such advance
issues could easily be referred to the Tribunal for classification,
thereby allowing the distributor to import according to the
Tribunal’s classification in individual cases.

Alternatively, we think that we have given reasonably clear
guidelines in Decisions 1033, 1038 and the present case to enable
the importer to know with some certainty when any particular issue
of Penthouse may run into the danger of being classified as
unconditionally indecent. Although we hesitate to lay down hard
and fast rules, the danger at present when the normal content of
Penthouse is embellished by:

1. Scenarios involving more than 2 models, and in which sex and
   violence and intimacy and/or deviant aspects of sex are
   depicted among the models;
2. Multiple model scenes which depict lesbian acts;
3. Heterosexual scenarios in which there is a high degree of
   intimacy (e.g., fellatio or cunnilingus or intercourse)
   depicted in the couple’s actions.

The formal orders will therefore be:

(a) The January, March, April, July, August, September, and
October issues are declared indecent;

(b) The February, May, June, November, and December issues
are declared indecent in the hands of persons under the
age of 18;

(c) The Tribunal refuses to make a section 15A order either in
respect of a classification of indecent or a classification
involving an age restriction on the U.S. edition of
Penthouse.

District Court Judge W. M. WILLIS, Chairman.

3

Decision No. 1054
Reference No. Ind. 7/83

Before the Indecent Publications Tribunal

In the matter of the Indecent Publications Act 1963, and in the
matter of an application by the Comptroller of Customs for a
decision in respect of the following publications: Penthouse U.S.
Volume 14, No. 5 (January) 1983, No. 6 (February) 1983, No. 7