Or; How I Learned to Stop Worrying and Love the Classification Office
THE FILM, Video and Publications Classification Act 1993 evolved from the Video Recordings Act 1987. The original Act was passed into law in urgent response to the video format which had emerged and proliferated in the early-to-mid 80’s, but was outside the reach of the existing film censorship law, the Films Act 1983.
The mood of the time was that video was a rogue cousin to the film industry, and it need to be heavily regulated to stem the flow of perceived ‘video nasties’ and other material that might be ‘injurious to the public good’.
Fair enough in principle, although the ‘line in the sand’ was drawn bluntly and retrospectively, so that any film that was not innocuous mainstream entertainment was withdrawn from the marketplace virtually overnight. Specifically, any video title that had been previously classified as R18 by the NZ Classification Office had to be resubmitted for classification, as did any video that was not already classified by an Australian or British censorship authority and was of an unrestricted nature (ie. G, PG and M-rated films). This meant that a whole raft of legitimate films for adults – many from the film festival circuit - were suddenly not available. Previously classified works by important film-makers like Fellini, Pasolini, Bergman, Godard, Argento, Cronenberg, Paul Morrissey and John Waters were suddenly contraband.
Relief to this situation finally came along in 1994 with the incoming Chief Censor Kathryn Paterson, a self-professed film-lover, who was sympathetic to the cultural void that had been created by the legislation. It was under her tenure that we lobbied successfully to ensure that films previously classified by the NZ censors as ‘R18’ could be ‘cross-rated’ to the video version of the film. This meant the likes of such films as the Cannes-winning The Tin Drum or In the Realm of the Senses, could once again be restored to their rightful place on the video shelf (for a nominal fee to the Labelling Body, of course).
However, a situation still prevailed where niche-interest films that had not been previously classified in NZ were unlikely to be released because of the fee structure and qualifying criteria for the classification process.
Ms. Paterson sadly passed away (while in office?) in 1998, and after some hiatus, the reign was eventually handed to the current Chief Censor, Bill Hastings.
Mr. Hastings took a ‘new broom’ approach to his position, and he made two specific changes that inhibited the availability of film festival and non-mainstream film programming on video.
Film Festival ‘waivers’
The first was that he regarded that the ‘industry’ was getting a ‘free ride’ in respect of fee waivers granted to films that made their debut showing at film festivals. His complaint was that classification fees for commercially released fare (Kiwi film, Topless Women Talk About Their Lives and Trainspotting were cited as examples) were being ‘subsidised’ by his office in the form of fee waivers. The discretionary fee waiver that is customary for film festivals is 75% of the normal fee, which translates roughly as a $250 fee instead of $1000. This is the maximum ‘discount’ that can be applied, as specified by the regulations of the Act.
All films that had been granted a festival fee waiver up to that point and from then on would be subject to the ‘residual’ classification fee, meaning that distributors would be liable for the unpaid portion (approx. $750).
The effect of this was that any film festival film that had been granted a fee waiver by the OFLC, but that had not received a subsequent theatrical release, was missing out altogether on a video release because even the residual fee was prohibitive.
This problem was brought to the attention of the Chief Censor in 2000, who was sympathetic to this consequential effect. At our suggestion, an informal arrangement was struck, whereby the residual fee would be waived entirely if the title had not been released on video within two years of receiving its film festival classification. This rare compromise allowed us to be able to import titles that had been missed by distributors, two years after their film festival showing. We were grateful for some kind of breakthrough, and a few more titles were able to be made available to the public under this mechanism.
Things changed however with the proliferation of the DVD medium. It was becoming increasingly customary for DVD editions of films to have extra material contained on the disc. The inclusion of any deleted scenes, featurettes, short films, and trailer content for other films (rated higher than the main feature) meant that the ‘film’ was not identical in content to the original film that had been classified, and therefore the DVD version had to be subject to being ‘re-classified’ by the OFLC with the requisite fees.
Since taking office, we understand that Mr. Hastings and his team have granted fee waivers to films and television shows outside of the “film festival” umbrella. We don’t have details about which titles have received fee waivers but according to distributors we have talked to, it is a small fraction of total submissions.
But the whole issue of “fee waivers” is problematic because it is an entirely discretionary provision, based on a loose set of guidelines and the whim of Chief Censor. To illustrate that ‘whim’, Mr. Hastings in his 2004(?) annual report made justification for granting a (50%) fee waiver to several seasons of the TV series Sex and the City on the proviso that the distributor sold it exclusively to the marketplace as a ‘sales’ only item. Under this bizarre arrangement, the distributor released the DVDs stipulating that the items were “not for rental”. To this day, the ‘back room deal’ supposedly prevails – that video rental stores may not legitimately rent copies of Sex and the City, because the distributor got a cheap deal at the censor’s office.
The Act was in essence drafted in 1987 and simply integrated in 1993, pre-dating the DVD revolution by six years. The Act to this day does not mention the medium of DVD, and it is a principal reason why the Act is hopelessly inadequate in 2009.
Using Overseas Classification Authorities (OCA)
The other significant change was an interpretation of the regulations in respect of the ‘cross-rating’ of films that were classified as ‘15’ by the BBFC in the UK.
Up until that point, the Film and Video Labelling Body (FVLB), the authority who issue classification labels to the industry had for many years “taken comfort” in cross-rating UK ‘15’ material as its New Zealand equivalent; a “16” or, as it was later known, an “M” rating.
Chief Censor Mr. Hastings took exception to this practise based on his interpretation of the law. His issue was that the UK ‘15’ was a ‘restriction’ (ie, restricted to persons 15 and over) and not merely a ‘recommendation’ and therefore all films that were classified as such in Britain had to be remitted to his office. This meant it was no longer viable to import special items that carried a '15' certificate because the Chief Censor deemed it necessary for such material to be examined and re-classified for the New Zealand market. His decision to apply the law "as written" resulted in the subsequent "economic censorship" of hundreds of titles, because in many cases, the mandatory $1100 fee made it unviable for a distributor or importer to release the film into the NZ market.
We took strong exception to Mr. Hastings interpretation of the regulations. Our argument was that the letter of the law was precluding the spirit of the law. The main tenet of our argument (and interpretation) was that the UK classification system had no actual equivalent to an “M” rating in New Zealand, because the UK system imposes a restriction on all of its ratings where it is age specific (ie. ‘12’, ‘15’, ‘18’). The New Zealand “M” does not restrict but simply recommends that audiences be ‘mature’ (ie. over 16 years of age).
We believe that when the regulations were drafted, that it was presumed by law-makers and advisors that the UK ‘15’ was a recommendation and not a restriction.
We made our position clear in 2004, by presenting these issues in an extensive submission and appeared before a Select Committee. We found the committee to be universally sympathetic, but their concerns lay with other parts of legislation (namely being able to prosecute paedophiles) so our proposed amendments ultimately ‘fell on deaf ears’.
We have found it especially difficult to affect change in the system without the formal endorsement of the Chief Censor and the OFLC. It is their voice that dominated the Report of the Government Administration Committee of March 2003.
We, as a small business, have very little influence no matter how cogent our argument, and it is for this reason that we have established this public forum. We know there is widespread frustration with the classification system at ‘user’ level and as a collective voice we have a much greater chance of being heard.
