3788 NEW ZEALAND GAZETTE No. 161

drawings "nudity is of course acceptable, but should avoid the following: [a] to [i] is listed and include the following:

[k] forceful sexual activity (e.g., rape).

[l] flagellation and bondage.

Past copies which were available to the Tribunal did not show a complete consistency with respect to the above matters. Earlier copies included advertising for bondage and sado masochist activities and some copies showed some photographs in which the models were posed in the context suggestive of violence. Covers of earlier editions of the magazines did not always comply with the arguably subjective criteria that "they should not display over provocative poses by the model." The criteria governing the magazines allowed photographs depicting violence in the video review sections. There was insufficient explanation from the publishers as to their policy with respect to the selection of photographs from videos and films, although this was sought by the Tribunal. This lack of consistency over past issues is material when considering a restriction order.

Secondly if a restriction order were to be granted, the issue of where these magazines are to be displayed and sold is relevant. The Indecent Publications Act is largely silent over what constitutes the offence of exhibiting an indecent document in or within view of a public place [section 21], and is totally silent on how that restriction is to be enforced, when the Tribunal declares a publication indecent in the hands of persons under a particular age. There are no enforcement provisions available to the Tribunal over the display of material referred to the Tribunal.

The publishers "Mensies Guidelines" contain very explicit policy on the display covering these magazines.

MENZIES GUIDELINES

6. Display of Magazines: The company considers it desirable that care should be taken not to offend customers who may not choose to purchase adult magazines. It is also considered essential that there should be no sale to those under the age of 16 years. The company has borne in mind that the age of majority is 18 and that the age of consent (in Scotland) for marriage and for sexual intercourse is 16. Accordingly, there seems to be no logical reason why adult publications should not be sold to those of 16 years of age and over. The policy on display is accordingly:

(a) No magazine should be displayed or available for sale at points where under sixteens can have ready and immediate access to them, i.e., at front of the counter.

(b) Wherever possible, adult titles should be placed on higher shelves or on displays or if on a sales counter, adjacent to the sales assistants’ normal stance. They should be so placed that some supervision can be exercised by the sales staff only for the purpose of preventing the under sixteens having access to them.

(c) No adult magazine should be sold by or to an under 16 year old. If in any doubt the sale should be refused.

(d) Adult magazines should not be placed adjacent to children’s comics, or magazines for young people but beside other magazines more likely to be purchased generally by adults.

(e) Retail outlets should be careful to exercise a discretion in displaying covers which, though within the general policy, might cause offence due to the location of the retail outlet.

The company welcomes continued advice from its staff, from those engaged in law enforcement and from its customers as to its policy in the light of contemporary community standards.

While it may be possible to enforce these Guidelines in the United Kingdom, under the present New Zealand legislation there is no way of enforcing this policy. Copies of these magazines are on display in New Zealand retail outlets in ways which transgress these Guidelines.

Gordon and Gotch are distributing up to 20 000 copies of these magazines per month. They are distributed to bookshops, magazine sections of larger stores, and corner dairies. There is nothing on the cover of these publications to indicate to whom they are available [in comparison with Australian states], or that a Tribunal has imposed an R 18 age restriction on them. Little control exists over who purchases these magazines at the retail outlets; and there is even less control over who may browse through them when they are readily accessible. While these magazines have the objective of "light hearted amusement and providing mild titillation" according to the publisher’s counsel, there is also an argument that they denigrate the female body to such an extent and manner that all issues should not be easily available for the next two years to school children to browse through while deciding how to spend their pocket money. Accordingly the granting of a restriction order is opposed.

Dated at Wellington this 12th day of July 1988.

R.E. BARRINGTON, Member

Indecent Publications Tribunal.

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Decision No. 23/88

Reference No.: IND 7/88

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: Jeff Stryker, Superstar, publisher not known, printed in USA; Sergeant Cox, publisher not known, printed in USA.

Chairman: Judge R. R. Kearney.

Members: R. E. Barrington, A. J. Graham, K. Hulme and S. C. Middleton.

Hearing at Wellington on the 11th day of April 1988.

Appearances: M. J. Wotherspoon appeared for Comptroller of Customs. No appearances on behalf of importer.

Decision

Although there was no formal appearance on behalf of the importer, a written submission was received from him and this was considered by the Tribunal along with the other submission of the Comptroller of Customs.

These two magazines were privately imported at Hamilton in November 1987. The Collector of Customs seized the magazines and the importer disputed forfeiture. The publications were therefore referred to the Tribunal prior to the commencement of condemnation proceedings pursuant to the Customs Act 1966.

In his submission on behalf of the Comptroller of Customs, Mr Wotherspoon described the publication in this manner:

"These are graphic homosexual publications clearly depicting oral and anal sex, with sado-masochistic overtones in some photographs. There is virtually no text with each publication consisting of a series of colour photographs.

Mr Wotherspoon went on in his submission to submit to the Tribunal that these publications were to be considered in the same class as Submissive Suck-Off a publication which the Tribunal had described as ‘explicit hardcore homosexual pornography’ when classifying it as unconditionally indecent in Decision No. 25/87 of 16 December 1987.

In his submission to the Tribunal, the importer expressed his anger that the Tribunal was to become involved in a transaction which he considered personal and private. The importer informed the Tribunal that he resented the fact that he as an adult, should have his sexual morality subjected to the valued judgments of someone else, whether that person be an agent of the Customs Department, or a member of the