22 AUGUST THE NEW ZEALAND GAZETTE 3641

Decision No. 12/85 Decision No. 13/85
IND 5/85 IND 8/85

Before the Indecent Publications Tribunal Before the Indecent Publications Tribunal

In the matter of the Indecent Publications Act 1963, and in the In the matter of the Indecent Publications Act 1963, and in the
matter of an application by the Comptroller of Customs for a matter of an application by the Comptroller of Customs for a
decision in respect of the following publication: decision in respect of the following publication:

The Link Catalogue, published by The Link Leatherwear Pty. Ltd. J. Brian 1984 Catalog
J. Brian The New Golden Guys No. 6 Published by J. Brian.
Chairman: Judge R. R. Kearney. Chairman: Judge R. R. Kearney.
Members: H. B. Dick, J. V. B. McLinden, R. Barrington, A. J. Members: H. B. Dick, J. V. B. McLinden, R. Barrington, A. J.
Graham. Graham.

Hearing: At Wellington on the 29th day of March 1985. Hearing: At Wellington on the 11th day of July 1985.

Appearances: No appearance by the importer, R. Somerville, K. Appearances: No appearance of importer, T. Kataivich, K. Wild
Wild for Comptroller of Customs. for Comptroller of Customs.

DECISION DECISION

THE Comptroller of Customs advised us that this was a single copy THESE two publications were seized following their commercial
of a private importation seized at Auckland in October 1984. As importation through the port of Auckland in September 1984 as
the importer disputed forfeiture the Customs Department referred being indecent. The commercial importer having disputed forfeiture,
the publication to the Tribunal for classification prior to the they have been referred to the Tribunal for classification prior to
commencement of condemnation proceedings pursuant to the the commencement of condemnation proceedings pursuant to the
Customs Act 1966. Customs Act 1966.

The material we are asked to examine consists of some 27 looseleaf On behalf of the Comptroller of Customs, Mr Wild submitted that
A4 sized pages, most of which carry advertisements for accessories the J. Brian 1984 Catalog was a collection of various nude and
used in male homosexual practices. The 27 pages are loose. There partly nude male models posing mainly in unnatural positions so
have been no holes punched in the paper by which the pages could as to give maximum emphasis to the male genitals. He pointed out
be bound together nor have they been stapled or affixed to each that there were brief descriptive paragraphs about the various models
other in any way. The pages are kept together by means of a and that the publication was completed with a brief section
cardboard folder which has a pocket running along its bottom inside advertising various sex aids, magazines, and video tapes, mostly of
edge. The pages are stored in this pocket. a homosexual nature. The Tribunal is satisfied that this publication
is intended to promote homosexual activity of an illegal kind, that
The outside of the folder, which is good quality glossy white there is in any event a coarseness in the pictorial displays and no
cardboard has the words The Link Catalogue printed on it. redeeming features in the publication. For these reasons the Tribunal
finds this publication indecent.
In the context in which this material has been submitted to us,
it should be noted that the Tribunal has jurisdiction only over books. The second publication The New Golden Guys No. 6, again
It seems to us that the Comptroller is in some difficulty in arguing contains photographs all depicting nude males and the Tribunal
that this publication is a book, because of its looseleaf nature. agrees with Mr Wild on behalf of the Comptroller of Customs that
the poses are, in the main, contrived and that several of them do
In relation to that point we refer to the material definition of indeed feature simulated homosexual acts. The Tribunal finds that
book in The Shorter Oxford English Dictionary: this publication also clearly promotes homosexual activity of a kind
which is illegal and that in addition, there is in any event a coarseness
a collection of sheets of paper or other substances, blank, written, in the display of genitals and no redeeming features to the publication
or printed, fastened together so as to form a material whole; at all.
esp. such a collection fastened together at the back, and protected
by covers; also, a literary composition long enough to make For these reasons the Tribunal finds this publication indecent.
one volume, as dist. from a tract, pamphlet, essay etc . . .

As already stated, there is no fastening or binding to keep the Dated at Wellington this 26th day of July 1985.
pages together in this case. We think in those circumstances that we
would be straining the ordinary meaning of book to hold that we Judge R. R. KEARNEY, Chairman.
have jurisdiction to impose a classification.

Recently we have had occasion to consider material bearing some Decision No. 14/85
similarity to the items the subject of this decision. This was in IND 3/85
Decision No. 1/85 where the Comptroller sought a decision from
the Tribunal in respect (inter alia) of 9 mail order forms to Swish Before the Indecent Publications Tribunal
Publications Limited. In that case the Comptroller asked the
Tribunal to consider the material on the basis that although it was In the matter of the Indecent Publications Act 1963, and in the
accepted that mail order forms were not specifically included in the matter of an application by the Comptroller of Customs for a
definition of books, the Tribunal had been prepared to classify decision in respect of the following publications:
catalogues on previous occasions.
Full Auto Volume Five M1 Carbine To M2 Modification Manual,
Our conclusion in that case was: published by Desert Publications.

We think that the single page mail order forms could not be Professional Homemade Salutes, by J. Abrusci, published by
classified as books although they obviously may be documents. Desert Publications.
In that regard we note in passing that Police v Brian (1971)
NZLR 119 J. Roper held that a book displaying a single page Two Component High Explosive Mixtures, published by Desert
could constitute a document. Publications.

It should also be noted that in Decision 1028 we refused to classify Submachine Gun Designers Handbook, published by Desert
a publication called Spunky 1981 Calendar as a book for reasons Publications.
which we feel are also applicable to the present case.
Chairman: Judge R. R. Kearney.
Although we have accepted jurisdiction over numerous sex aid Members: H. B. Dick, J. V. B. McLinden, R. Barrington, A. J.
catalogues in the past (e.g. see Decision Nos. 999, 1039 and 1061) Graham.
they were clearly different in format. In these cases the catalogue
pages were bound together so that the publication could be referred Hearing: At Wellington on the 29th day of March 1985.
to as a book within the ordinary and natural meaning of that word.
Appearances: No appearance of importer, N. Bell, K. Wild for
For the above reasons we rule that The Link Catalogue is a Comptroller of Customs.
document or collection of documents and not a book, and as such
the material is not within our jurisdiction. In circumstances where DECISION
the items may be considered by the District Court we feel that it
is inappropriate to make any comment on whether in our view the THESE publications were imported privately through the port of Mt
material would have been considered indecent if the Tribunal had Maunganui in September 1984 and seized as being indecent. The
had the jurisdiction to consider it. importer having disputed seizure, the publications were referred to
this Tribunal for classification.

Dated at Wellington this 26th day of July 1985.

Judge R. R. KEARNEY, Chairman.

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