1. The ‘Cross-rating’ of Overseas Classifications

As the cornerstone argument of this submission, we feel it that it is imperative that Regulations 9 and 12 of the Act be amended to allow The Film & Video Labelling Body (FVLB) to assign a rating or classification to (or ‘cross-rate’) those films classified as “15” by the BBFC in the UK.

That ‘rating’ would be an equivalent existing New Zealand classification – either an “M” (as was customary practise between 1987 and 1999) or an “R” (aka “RP16”): Restricted to persons 16 years of age and over unless accompanied by a parent or guardian.

Further to this we would strongly recommend that provision be made to allow the Labelling Body to ‘cross-rate’ film publications classified as MA (15+) by the FCBA in Australia to the NZ equivalent, “R” (aka “RP16”).

In practical terms, we ask that all films that have been previously classified by a recognized OCA (overseas classification authority) as not higher than a restriction to persons of 15 years and over be made available to mature film audiences in NZ without having to go through a superfluous and exorbitant (re)classification process at the OFLC.

The Labelling Body had been ‘cross-rating’ films classified as BBFC “15” to the NZ equivalent (“M”) from 1987 until 1999, when the regulations governing this practice was ‘re-interpreted’ by the new Chief Film Censor. Specifically, he stressed that the BBFC 15 certificate, unlike the NZ (and Australian) ‘M’, was a restriction, and not a recommendation, and therefore could not condone the practice of such ‘cross-rating’ as prescribed by the law.

We challenged this ‘interpretation’ in correspondence to the Chief Censor in August of 2000, expressing that it had a negative impact on our business and consumer choice.

In his correspondence of 16 Oct 2000, Mr. Hastings suggested that “the way forward would be to seek an amendment to the regulations”.

Unfortunately, the amendment we sought was apparently not supported by the Chief Censor on evidence of his comment in Recommendation 19 of the Report (I.5A), where he stated that “the threshold for the submission of films to the OFLC be lowered from Australian ‘MA’ to ‘M’.”

We regard this suggestion as alarmist and untenable, and contrary to all indicators that consider the global evolution and local media and cultural environment we have outlined extensively in this submission.

The Chief Film Censor asserts in the Report that the statutes of the Australian and English classification systems differ to those operating in New Zealand. We are dismissive of that argument on the grounds that any differences are entirely negligible when considered in the practical environment under which the statutes must operate.

We fear that Mr. Hastings comments may instead indicate that he does not support a change to “raise the threshold” because it would result in a reduction of remittances to his office. Simply put, it is not in the interest of the OFLC for this regulation to be amended, and therefore I do not believe the OFLC or the Chief Film Censor to be necessarily impartial.

We understand that both of these recommendations are rigorously supported by the FVLB.

In summation, we purport that there is no evidence whatsoever that films that have been classified/rated as ‘15’ or MA (15+) in their respective overseas territories are a potential source of “injury to the public good”.

Therefore, we believe strongly that it is a waste of resources and indeed inappropriate for them to be subject to mandatory examination at the OFLC.

2. The ‘cross-rating’ of features with DVD extras

It is now customary (and often obligatory) for DVD editions of films to include extra material, which in some cases can run well in excess of the running time of the main feature.

We believe that the Labelling Body should not be required to remit DVDs to the OFLC in the instance where the extra material consists of either trailers, interviews or documentary material.

Regulation 18 is unworkable

Pre-dating the advent of the DVD format by some years, the current Regulations make no provision for the inclusion of extra material on DVD editions of “main features” that have been previously classified by the OFLC. This is because the governing regulation (Regulation 18) is erroneous in conception, and faulty in application.

It is in fact so faulty that Labelling Body have had no choice but to regularly forgo compliance with the regulation in order to practically serve the industry and the demands that the ubiquitous DVD format has placed on them. Why this issue has not been addressed as a matter of urgency is a mystery.

We appeal that an amendment be made to Regulation 18 that replaces the word “film” in both instances with the words “main feature” so as not to preclude any video or DVD of a classified feature from containing extra material.

3. The rating of trailers

The other constraining factor for applicants of DVD ratings and the Labelling Body is the issue of the trailers themselves.

There is a considerable backlog of titles that cannot be released to the market because the Regulations are intolerant of any trailers that are not, by the prescribed ‘meaning’ (in Regulation 3), “consistent in character”.

It is this ‘meaning’ that must be amended to allow the Labelling Body to function in a commercial and cultural environment that has undergone significant change since the Act was passed. The public’s attitude and exposure to trailers has changed accordingly.

In considering how the Regulations should treat the inclusion of trailers on main features, the following facts need to be considered:

Trailers and censorship

Mature audiences (ie. children excepted) need not be ‘protected’ from film trailers. We know of not a single instance where a trailer for a legitimate feature film has approached being “injurious to the public good”.

It is therefore entirely appropriate, and well within the competence of the Labelling Body to determine “consistency in character” across the spectrum of ratings and classifications, when trailers are presented as extra material on DVDs.

It would seem that complaints made by members of the public about trailers (shown theatrically) deal exclusively with parental concerns at G and PG rated features.

The Regulations should make a distinction between this G and PG rated fare and all other fare aimed at mature audiences. Public concern about trailer content for mature audiences is apparently immaterial, as this evidence would suggest:

For the 2002 and 2003 years combined, there were only two specific complaints lodged with the Broadcasting Standards Authority regarding trailers for feature films shown on television(3). Both complaints did not relate to the content per se, but rather pertained to the appropriateness of the timeslot and the “effect of the broadcast on children”. Neither of these complaints were upheld.

Rating trailer ‘content’

Additionally, a clear distinction needs to be made between the rating of a trailer and the rating of the feature film that the same trailer advertises. (ie. a trailer for a R18 film may be rated as ‘M’). This is current practice in the UK, and allows greater flexibility in terms of trailers being coupled to feature film programs.

This would accommodate for the proliferating DVD editions of classified films (sourced from all over the world) that contain trailers for films never to be released in our small market.

Documentary and ‘non-fiction’ extra material

Interviews and documentary featurettes should be exempted from censorship considerations, a status that such material enjoys when it is a “main feature”.

Deleted scenes and extended versions

The status quo (referral to the OFLC) may be appropriate in the instance of deleted scenes, but we suggest that this should only be applied where the extra material has not been classified by an OCA.

4. Classification of television programs

The proliferation of television programming being released on DVD format is yet another significant shift that has occurred in the marketplace since the Act was passed.

This is another instance of where the two governing Acts are (working paradoxically) at odds with each other.

Under this current legislation, the OFLC is obliged to classify all DVDs and videos that have been previously classified by an overseas classification authority (OCA), including programs that have already been broadcast on network television.

We believe that the Labelling Body should be authorized to assign a classification to programs that have previously aired on NZ television with the equivalent of its classification by an OCA.

The OFLC is currently in the practise of granting fee waivers to previously-broadcast television programs where a waiver is requested by the applicant.

The Chief Censor cites the reasons for granting this waiver to be that “prior broadcast may reduce the pool of potential purchasers of the DVD making them less profitable” and “the content of shows is also unlikely to be a source of risk of injury to the public good.”

He does not, however, cite the most obvious reason being that there is a glaring paradox at work. The process is a pure formality, and executing formality is the job of the Labelling Body and not the OFLC.

According to the OFLC Annual Report 2003, the cost to the industry in 2003 was $42,625 in classification fees. The cost to the OFLC of granting these waivers in the same year was $72,325.

There is significant cost, and no benefit. The process of classifying previously broadcast (and previously classified) TV shows results in an outcome that is either already known or is of arbitrary difference to the public (see section B3).

In many cases, compliance costs (even with waivers) still inhibit the release of television programs on DVD and video format. “Auf Weidesehn Pet” and “Cold Feet (series 2-4)” are two salient examples that remain in limbo.