8 MARCH

NEW ZEALAND GAZETTE

729

reasons the indecent publications legislation does not provide for a consideration of denigration factors; the Court appears reluctant to apply it where it is available; and the arguments have not been put before the Tribunal in the last 2 years.

If they had, then members of the Tribunal would have given serious consideration to them in assessing these magazines.

The recent Report of the Ministerial Committee of Inquiry on Pornography at page 69 comments:

"the Indecent Publications Act gives an air of moral guardianship to the bodies which classifies work according to its terms. The later Acts [Video Recordings Act and Films Act] substitute that air with one of concern for people who may be ‘denigrated’ by a work and with concern about the cumulative effect of media materials. Both of these concerns are in line with more modern analyses of the harm caused by the mass media."

Thus while the Tribunal clearly must act under the legislative authority of the Indecent Publications Act, in so doing it is also acting in a way which is out of line with the most recent analyses of the meaning of what is harmful.

Many of the photographs in these magazines were demeaning if not also denigrating of specific women, and arguably of a specific class of people based on their sex. The argument that members of the Tribunal would like to have debated before it, is how brightly coloured photographs of women with their legs displayed in the most tortuous positions with their fingers straining open the outer lips of their vulva lips to concentrate as much as readers’ attention as possible, on the inner vaginal area, and if it were possible up to the cervix of the vaginal canal; can not be said to not be demeaning of women. The context within which these photographs are placed is also relevant, for instance in a medical anatomy text book diagrams of women’s inner genitalia are acceptable: in these publications the depictions are exploitative and degrading.

Dated at Wellington this 6th day of December 1989.

R. E. BARRINGTON and S. C. MIDDLETON, Members.

Indecent Publications Tribunal.

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Decision No. 65/89

Reference No.: 45/89

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 publication: Big ‘N’ Bouncy, No. 3:

Chairman: Judge R. R. Kearney.

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

Hearing at Wellington on the 4th day of October 1989.

Appearances: M. J. Wotherspoon for Comptroller of Customs.

No appearance by or on behalf of importer.

Decision

This publication was privately imported through parcel post Auckland on 23 August 1989 and was seized by the Collector of Customs. The importer having subsequently disputed forfeiture, the publication has been referred to the Tribunal for classification prior to the commencement of condemnation proceedings pursuant to the Customs Act 1966.

Although there was no appearance by or on behalf of the importer the Tribunal received and considered a letter of submissions from the importer.

The publication Big ‘N’ Bouncy concentrates as its name suggests on models with large breasts. A limited number of the photographs also place emphasis on the genitalia of the models displayed. The Tribunal is satisfied that there is material in this publication which would be injurious to younger readers and classifies it as indecent in the hands of persons under the age of 18 years.

Dated at Wellington this 1st day of November 1989.

R. R. KEARNEY, Chairman.

Indecent Publications Tribunal.

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Decision No. 66/89

Reference No.: IND 33/89 and 39/89

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: Australian Hot Talk, Volumes 12, 13, 14 and 15, published by P H Editorial Services Pty Ltd., Sydney, Australia:

Chairman: Judge R. R. Kearney.

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

Hearing at Wellington on the 4th day of October 1989.

Appearances: M. J. Wotherspoon for Comptroller of Customs.

G. F. Ellis counsel on behalf of importer and distributor, Gordon and Gotch New Zealand Ltd.

Decision

These publications were imported into New Zealand by Gordon and Gotch New Zealand Ltd., and quite properly referred by the importer to the Customs Department with the request that they be referred to the Tribunal for a decision on their classification in terms of the Indecent Publications Act 1963.

The publications are magazines containing a collection of short stories and readers letters all of which are of a sexual nature. The Tribunal agrees with Mr Wotherspoon that volumes 12, 13 and 14 are similar in content to the publication Penthouse Forum which is subject to a serial restriction order classifying it as indecent in the hands of persons under the age of 18 years.

Mr Ellis supports the Comptroller in the request for an R18 classification and the Tribunal accordingly classifies volumes 12, 13 and 14 as indecent in the hands of persons under the age of 18 years.

In respect of volume 15, Mr Ellis on behalf of the importer and intended distributor, acknowledges that there are 2 changes which the publishers have made in respect of this particular edition as against the form and content of volumes 12, 13 and 14. Volume 15 is a larger type production and whereas most of the photographic content of volumes 12, 13 and 14 is in black and white display with a soft focus, volume 15 is a glossy type magazine with a greater emphasis on photographs, with a number of those photographs depicting male and female models in sexually intimate poses. Mr Ellis acknowledges that those photographs may well come within one of the provisions of the tripartite test because of the multiplicity of models displayed but he submits that this should not result in an unconditionally indecent classification. In support of that submission he pointed out to the Tribunal that there are no elements of the other 2 legs of the tripartite test namely, elements of sado-masochism or violence nor are there any displays of sexual activity with children or any other type of activity which comes within the provisions of that test. Mr Ellis submitted that such sexual element as does appear in the publication should not warrant anything other than an age restriction classification.

The Tribunal does not agree with Mr Ellis in his submission and it is satisfied that a publication can quite properly be classified as unconditionally indecent even though that publication contains only 1 of the elements of the tripartite test. The magazine consists entirely of explicit sexual material both in its written and photographic content: it differs markedly from issues 12, 13 and 14 in its inclusion of a