1448
THE NEW ZEALAND GAZETTE
No. 70

the public good. Mr Robertson suggested that actual sexual
connection was never photographed in Penthouse. We drew his
attention to the July issue and in particular to the pictorial sections
on pages 119–123. If the intimacy shown in those photographs was
not actual intercourse it gives every appearance of being just that.

From time to time—we can almost say regularly—we have for
consideration publications which consist sometimes entirely of
photographs and sometimes a minimal amount of text. On those
occasions quite plainly the pictorial content is the only matter for
consideration. A review of decisions will indicate that we have
prepared to classify them with an age restriction as long as there
are no features such as we mention in Decisions 1053 and 1054.

Perhaps the most important submission Mr Robertson made to
us was in relation to the dominant effect of the publication. He
argued both orally and in his written submissions that the dominant
effect was to provoke and stimulate thought in the reader over a
wide number of areas. Sex was one of those areas, Mr Robertson
conceded, but although vital was not the predominant part of the
magazine.

We do not accept this submission. We think the approach
suggested is too academic The Tribunal, over a 10-year period,
during which time its composition has changed, has consistently
found that the predominant effect of the magazine is to deal with
sexual matters in a manner which hovers on the borderline of
indecency. For example in 1974 in Decision No. 830 the Tribunal
stated:

“The amount of material not concerned with sex varies among
the 6 but at nowhere threatens to contest the dominance, in
text and illustration, of the varied sexual fare. In its nature and
in the tone of its treatment, some of the sexual material is more
objectionable than the features of the earlier issues on which
the Tribunal commented.”

In December 1976 the Tribunal in Decision No. 881 stated:

“Clearly in both text and photographs there is a predominant
emphasis, in each magazine, on sexual matters.”

In Decision Nos 1033 (8 October 1982) and 1053 (16 March 1983)
similar sentiments are expressed in the sections of the decisions that
deal with the dominant effect of the magazine.

Mr Robertson’s argument invites use to consider too narrow a
spectrum. While we accept his argument that certain aspects of
Penthouse would be thought provoking and stimulating to the reader,
we feel it is a conceptual argument that could be applied to all but
the most simple type of publication. Consequently we have no doubt
that books and magazines dealing with matters of sex, horror, crime,
cruelty or violence could be covered by the same argument as is
advanced by Mr Robertson, on this point.

Accordingly, we feel that this argument carried little interest.

We reject the submission that the publication has great political
and social character or is of great importance in the political and
social field.

It makes some contribution to learning but its dominant effect
remains sexual. We also suggest that there is room for doubt as to
honesty of purpose. We pose the question—if the publication has
received universal and international acceptance because of its
investigative journalism and thought provoking articles why go to
the extreme of including the sections to which we have objected?
We refer to the pictorial sections in particular and to a lesser extent
features such as Forum and Call Me Madam.

Mr Robertson produced to us a photocopy of an affidavit from
Professor Haward who is the Professor of Clinical Psychiatry at the
University of Surrey, a photocopy of what appears to be an unsworn
affidavit from John Mortimer, QC and a statement from Mr Blom-
Cooper, QC of London. Professor Haward suggests that the content
of the issues of July to December 1983 inclusive are not indecent.
He said that Penthouse magazine has been used for the diagnosis
of psychosexual problems and for their subsequent treatment by
behaviour therapy. He then went on to relate that a Medical
Conference in 1972 had recommended the use of sex magazines for
psychiatric purposes.

We are aware of a number of what we have called sex manuals
which are available in New Zealand with or without an age
restriction. We have classified a number of these in recent years
and feel that they are more appropriate for the purpose mentioned
by Professor Haward. So far as the affidavit of Mr Mortimer and
the statement from Mr Blom-Cooper are concerned we note that
they refer to the Obscene Publications Act 1959. We are not
concerned with that Act but rather with the New Zealand Indecent
Publications Act 1963. As we understand the position in the UK
matters of obscenity come before a jury whereas under the New
Zealand Act this Tribunal is charged with the duty of classifying
books and sound recordings in accordance with the provisions of
the Act. It may well be that should such issues call to be decided
by a jury in which case, of course, no conviction would follow. We

are aware that there is a body of opinion in New Zealand and
doubtless elsewhere, which is opposed to any form of censorship.
We are also aware that there is also a body of opinion which would
impose a stricter form of censorship than currently exists. The
existence of these two lobbies could well be a reason for a jury
failing to agree.

The fact remains that this Tribunal remains the judge of indecency
in respect of books and sound recordings. Mr Robertson conceded
as much, although he did say that as a Tribunal, we had a wider
discretion to accept such evidence than perhaps a Court might have.
In general Courts have been reluctant to accept expert evidence on
the issue of whether a publication has a tendency to deprave and
corrupt. Leading cases dealing with such issues are DPP v Jordan
[1977] AC 699, Buckley v Waithen [1973] VR 51 (Victorian Supreme
Court, full court).

Mr Timberlake’s submissions do not sit easily with those made
on behalf of the publishers who would accept an age restriction.
Mr Timberlake’s objection is to censorship. That issue is not one
for us to decide. It is our function to carry out as best we can
censorship of books and sound recordings in accordance with the
terms of the Statute.

As we have mentioned earlier only 3 issues are before us namely
those for June to August inclusive. We have had the opportunity
of perusing those 1983 issues not already submitted for classification.
Because the 3 issues before us contain multiple scenes they are
classified as indecent.

Other issues for 1983 were handed to us as a basis for comparison.
However, we have not been asked to classify them so that the
distributors may have to decide for themselves what to do.

We have been asked again by Mr Robertson to make a restriction
order pursuant to section 15A. Because all issues vary from 1 month
to the next and for reasons which we have already given in earlier
decisions, we are still not prepared to make a restriction order. Were
we so minded and because of the variable nature, such a restriction
order might be one declaring the publication as indecent. We have
been informed, however, that the 1984 issues are markedly different
from those of 1983. We have not yet seen them but if there is an
improvement which is sustained over a period, it might be possible
to make a restriction order once the publications have been
submitted for classification.

Dated at Wellington this 26th day of April 1984.

Judge W. M. WILLIS, Chairman.

3

Decision No. 12/84
BRO 76/83

Before the Broadcasting Tribunal

In the matter of the Broadcasting Act 1976, and in the matter of
an application by the OTAGO RADIO ASSOCIATION INCORPORATED
to amend Warrant AM-1/4XD:

Chairman: B. H. Slane.

Members: Lionel R. Sceats, Ann E. Wilson.

Hearing: Wellington, 3 April 1984.

DECISION

THE applicant applied for 2 amendments to the warrant.

One was to permit the rebroadcasting of Radio New Zealand
News bulletins which may at times contain sports results.

The other was to extend hours of broadcast on Sundays from
0900 hours to 1200 hours and from 0600 hours to 1100 hours to
broadcast continuously from 0900 to 1100 hours.

In support of the application evidence was given by J. A. A.
Tonkin the honorary secretary of the association. In evidence given
by affidavit Mr Tonkin said it was the intention of the association
to use the additional broadcast hours to provide a programme at
present unavailable on Sunday afternoons in Dunedin. He described
it as “light and bright musical” including music and songs, popular
and the past, together with recent and new releases in the ‘ballads’
and ‘country’ styles collectively described generally as ‘easy listening’.

The association believed the programme would fill a gap on
Sunday afternoons between the predominantly rock music from
commercial stations and the national programme’s lighter music
and spoken programmes.

Information supplied with the application indicated that the
station had sufficient number of people capable of presenting the
programmes.

The association said that it may, after assessing the success of
the extended broadcasts, apply for daytime broadcasting on public
holidays and possibly Saturday afternoons.

The association approached Radio New Zealand with a view to
rebroadcasting Radio New Zealand news bulletins to which Radio
New Zealand agreed. The news bulletins are recorded and then