Legal Beagle by Graeme Edgeler


The Greg King Memorial Blogpost: Three Strikes, Five Years On

It now a bit over five years since New Zealand introduced the three strike sentencing regime for “serious violent crime”. And, after some news coverage about this a few months back, I decided I’d try to find out how well it’s working. It may surprise you to learn that the evidence to date suggests it is having a deterrent effect.

More on that later.

New Zealand’s three strikes law has always been a much more targeted law than its North American namesakes. It is designed to avoid particularly unjust outcomes, covering a relatively narrow range of offences, and it allows for *some* of its potential harsh consequences to mitigated in the event of a “manifest injustice”.

This has seen for example, what would have been the first two sentences of life without parole (the consequence of a murder committed as a second strike or a third strike) avoided, as explained by Andrew Geddis here (avoided for now at least, as the Crown is appealing both decisions).

Even with these decisions, and the really rather low likelihood of it causing a massive injustice, I still oppose three strikes. Applying the proviso can only get you so far. The “manifest injustice” exception only applies to the non-parole period. It can, as it has, turn what may have been an unjust sentence of life without parole into a more just sentence of life with the possibility of parole. It cannot turn what may have to be a mandatory life sentence for a manslaughter into anything less than a life sentence.

Now, I have to concede that the situations where something really unjust will happen are unlikely, but they remain possible, especially with the expansion of the scope of burglary, about which I’ve written before. Now, burglary isn’t a strike offence, but aggravated burglary is, which is any burglary committing while in possession of a weapon (the weapon doesn’t need to be used). And while high school lunch money stand overs are never prosecuted as aggravated robberies, or even as robberies, the idea that everyone convicted of a listed offence was committing something we’d agree was a serious crime is problematic.

One of the good things about New Zealand’s three strikes system is that it is in no way retrospective. At least some of the three strikes regimes in the United States are retrospective in part. While none increase the penalties for offending committed before they were passed, the higher mandatory penalties they impose can be affected by convictions entered before the law was adopted.

In New Zealand, convictions that pre-date the law don’t count as strikes, and offending that pre-dates the law, but which was prosecuted after the law change doesn’t count either: not even for a first warning (which has no effect other than being needed before something can later count as a second strike).

New Zealand’s three strike regime has an element of formality to it. Offending can only count as a second strike if the offender has actually been convicted of a strike offence before the new offending occurred. Conviction is formal step, distinct even from a finding of guilt, and when it occurs, the judge is required to read out (and provide a copy of) a formal warning of the effect of a subsequent. Judges are likely to also remind offenders of the warning at sentencing, which, for serious charges, is usually a separate event.

I suspect that the principle rationale of supporters of three strikes in New Zealand was not deterrence, but incapacitation. They looked at the people committing really serious crimes like murder, saw that many have long criminal histories, and decided that if those people had been detained for longer for their earlier crimes, they wouldn’t have been in a position to commit the more serious crimes they later engaged. It has a certain logic to it, but, of course, it captures people with similar criminal histories who would not have later committed murder.

Supporters of three strikes point to the reduction in violent crime in California after the introduction of its three strikes regime (generally regarded as the strictest form) as evidence that it “works”. This argument is invariably followed by the counterpoint: crime was down a similar amount in New York, and New York didn’t have three strikes, so maybe crime was just down everywhere, and three strikes had nothing to do with it? This, naturally, is followed by the rejoinder: New York may have not have had three strikes, but they did adopt sentencing enhancements, which can have a similar effect on sentencing. It’s an oft-repeated argument: someone will point out that our imprisonment rate is increasing, even while our crime rate is decreasing. To which the response will be that the crime rate is decreasing precisely because the imprisonment rate is increasing. The argument is all but impossible to resolve.

But, in New Zealand at least, we have a chance to test whether the three strikes law is working. And early indications are that it may well be.

A couple of months back, Stuff carried an article looking at three strikes five years on. It was picked up on Kiwiblog – which played up the deterrent effect:

“So 98.6% of offenders who got a first strike, have not gone on and committed a second strike offence. That’s great. The certainty of knowing that they will not get parole if given a second strike appears to be a strong deterrent.”

And it was picked up on The Standard, which called the arguments “innumeracy”.

I questioned David Garrett about his conclusions in the comments thread of the Kiwiblog post:

“Three strikes was intended to work in two ways: first and foremost, to protect the rest of us by incapacitation of repeat violent offenders, i.e by putting them in jail where they cannot harm the rest of us. Secondly – hopefully – by specific and general deterrence.

I would be very interested if someone has a better theory as to why have 5400 first strikers five years on, but only 76 second strikers, when the vast bulk of the first strikers have served their first strike sentence, and are thus on the street. It is of course impossible to prove deterrence, as it is impossible to prove any negative.”

76 second strikes does seem low (turns out that it’s really 81, but that seems low too). But I’d be wildly speculating if I was to offer reasons why it might be low: has National instituted a wildly successful rehabilitation programme for serious offenders? I have no idea.

I asked David (Garrett, not Farrar), whether he was sure the number was in fact low:

“What are the comparison numbers for the five years before the three strikes law took effect? How many people were convicted of an offence listed as a strike offence during those five years, and how many were convicted of a second or subsequent strike offence committed after that conviction was entered?”

He didn’t know. Neither, of course, did I.

I decided to find out. It seems the obvious comparison in any assessment of the deterrent effect of three strikes. We know how many second strikes there have in the five years since it entered into force. How many would there have been in the five years prior to three strikes had the same rules applied?

To the Official Information Act!

You need to be careful when crafting OIA questions around this sort of comparison, and I am relying on the Ministry of Justice to have correctly understood my intention. It is not enough to compare the number of convictions before and after the law change. Almost a third of convictions for “strike” offences since three strikes was enacted haven’t attracted first warnings because they relate to offending that occurred before the law change. You need to exclude similar offending in the comparison.

Between 1 June 2005 and 31 May 2010, 6809 people received convictions for strike offences that occurred between 1 June 2005 and 31 May 2010.

Between 1 June 2010 and 31 May 2015, 5422 people received convictions for strike offences that occurred between 1 June 2010 and 31 May 2015.

So strike crime is down around 20% since three strikes came into effect. Claiming cause and effect over something like that is the type of intractable debate that you get into over the effect of longer prison sentences. But what we are looking at is not the general deterrent effect of three strikes (fear of punishment in the public at large), but specific deterrence: fear of punishment by those who have a conviction for strike offending who have been personally warned by a judge that further strike offending is treated very seriously.

And that is where we can check the comparison between the five years before three strikes and the five years after it.

We know there were 81 second strikes in the first five years of three strikes. These are people who have been convicted for committing a strike offence after the law came into force, and subsequent to that conviction, been convicted of a further strike offence, itself committed after their earlier conviction occurred. The pre-strike comparison therefore needs to be people convicted of an offence committed after 1 June 2005 (but before 31 May 2010), who were then convicted before 31 May 2010 of a further offence committed after that conviction.

And it turn out that that number is a lot higher. Had the three strikes law been in place on 1 June 2005, the following five years would have seen 256 offenders receive second strikes.

Now, strike crime is down in general, but the ~20% fall in strike offending is dwarfed by the ~62% fall in strike recidivism.

Now, I hear you argue, if the three strikes regime had been in place earlier, then people might have acted differently. Well, you’re probably not arguing that, because the usual approach of the type of people likely to reading an article on Public Address, has been what Denis Dutton once apparently described as the “feverish search for ‘the real reason’” for the decline in violence.

I am, of course, open to alternative explanations: perhaps, in June 2010, the Government also introduced some highly successful treatment programmes, so that a person in prison for strike offending in 2011 has a much better chance of turning their life around than a person who was in prison five years earlier.

I doubted such a treatment programme exists, but I decided to follow that up with a further OIA request.

Because of the lack of retrospectivity in our three strikes law, two people convicted on the same day, in respect of the same charge can have different strike consequences: someone convicted for offending that occurred after the law came into force receives a strike warning, but someone convicted of an offence committed before the law was enacted receives no warning.

A comparison between these two groups may help confirm or quash the alternative hypothesis that some change in treatment is the cause of the substantial reduction in strike recidivism.

In the first 4 years and 7 months of three strikes (curse you tier one statistics!), 2437 people have been convicted of strike offending that did not result in a strike warning, and of those, 360 had subsequently earned a first warning for an offence committed after that conviction. That’s a strike recidivism rate over 1000% higher among those who didn’t receive a warning than those who did. Of course, this direct comparison is misleading, as the post-strike convictions for pre-strike offending will be front-loaded, occurring on average much earlier in the ~5 year period since three strikes was enacted, and thus allowing more time for strike-level recidivism to occur. However, it remains useful, as it provides evidence to negate the alternative explanation for the pre-strike/post-strike comparison of much improved recidivism treatment.

And that is what we are left with: in the first five years of three strikes, there were 81 second strike convictions. In the five year before three strikes, there would have been 256.

81 second strikes seemed low. Now we know it is.

And given that strike-level recidivism has dropped much faster than strike-level offending, it’s useful to ask why. I am particularly sceptical of general deterrence, am more accepting of the idea that incapacitation decreases crime (though am concerned about the cost), and am intrigued by the idea that personal deterrence, through the formal three strike warning, may actually work.

I got to this point by saying “81 second strikes sounds low, but is it?” Confirming it is leaves more questions. But the possibility that the three strike law is having a deterrent effect still leave unanswered questions. Of course, there may be other explanations, and if so, I would welcome falsifiable hypotheses. If people would like to offer some alternatives, it may be possible to graft OIA requests that may rule some of them out.

More help may come if we can make the analysis in the second (currently flawed) comparison, more granular: breaking the results down by year, or even month should enable a comparison which isn’t as affected by front-loading.

I guess my question is: if you are sceptical of the deterrent effect for second and third strike consequences, what evidence would it take for you to convince you? Establishing clear cause and effect will be impossible, but providing enough evidence to reach a conclusion that three strikes is probably (or probably not) having a deterrent effect should be possible. We have some data already – strike recidivism appears to be falling much faster than strike offending, so what more do we need?

PS If you are in Wellington, Professor Warren Brookbanks will be giving the Inaugural Greg King Memorial Lecture at 6:00pm tonight (Wednesday 30th), at the Victoria University Law School. The lecture has been organised by David Garrett, who was a good friend of Greg King’s, and Professor Brookbanks topic is the same as this blog post “Three strikes – five years on”. David Garret was the impetus behind three strikes, which Professor Brookbanks was a staunch opponent of the three strikes law when it was adopted, so it will hopefully be an interesting event for those who can make it along.


Update: Coroner's investigation

My post "Breaking News: Man Shot by Police; or the $600 tweet" has been picked up in the media. Police had not previously confirmed that Mr Červeň was unarmed when shot and the news that "The Coroner has ruled that there is currently reasonable cause to believe the death was self-inflicted" is also new, although it is important to note that is "in no way a concluded view on the matter."

My guess is that a Coroner would almost never release a tentative finding in such a way, and would not have had I not sought a High Court review of the refusal to let me publish. A coroner has previously found that a police shooting death was self-inflicted, but that finding was a concluded view, released at the end of the inquiry into the death.

The odd thing is, I wasn't seeking to break actual news. I did not ask the Coroner to release information, and certainly did not expect to cause the release of even obvious preliminary findings. I just wanted to lawfully report the information that Police had provided to the media at a press conference. I thought the public had a right to know a man had been shot and killed by police (and that police had admitted this), and didn't want to break the law when I relayed this information.

I think that, when there is a Police shooting, police ought to release information like "no weapon was found on the deceased", once they have reached that view, but I was not asking or expecting the Coroner to do it for them. That's just not something Courts do.

The coverage shows one of the problems with the entire process of seeking permission to make public particulars of death. In a position where they have to give "authority" to news coverage, the Coroner may be unwilling to give authority to publish information that doesn't meet the standard of a judicial finding. But that is not the standard to which the media aspires: initial reports can be incomplete, or the media can accurately report a witness who provides a statement that turns out to be misleading. In events like a shooting death, news coverage can fairly include conflicting statements without concluding which (if any) is accurate. If coroners are to approch applications for authority to release information in the same way that they approach inquests, then the system cannot work.

In the end, I got to do more than simply release (lawfully) information that was already released, but actually got to break news, as I was released a Coronial finding not automatically made available to other media. This is odd in itself. It may be appropriate that media or the public should be able to apply for a release of preliminary findings or tentative views by a Coroner, but the way the law is written, this is a power that is limited to cases where the Coroner may be able to find a death to be self-inflicted. In other high profile cases, the way you would do this is unclear, and you wouldn't have a statutory right to go to the High Court to challenge a refusal.

I'm not particularly hopeful, but with some luck, Parliament will be able to fix this when the Coroners Amendment Bill comes up before the Committee of the Whole House. Of course, as was pointed out in the comments to my earlier post, removing the new prohibition on reporting overseas suicide bombings is probably a higher priority.


Breaking News: Man Shot by Police; or the $600 tweet

On the evening on Sunday 2 August, Police shot and killed David Červeň in Myers Park. He died at the scene. At a press conference the following day, Superintendent Richard Chambers, the Auckland City District Commander of the New Zealand Police, stated that the death occurred after Mr Červeň declared he had a firearm and was about to use it.

Almost all of you will know this already. The information, after all, comes from a press conference, excerpts of which early in major news programmes on television and radio, and which made it into stories in New Zealand’s major newspapers, and on-line News sites.

But this is still an exclusive, as I am the first person to be able to tell you this legally.

Until Friday afternoon, shortly before I ‘broke’ the news on twitter, the Coroners Act forbade any publication of the fact that someone had been shot by police in Myers Park.

This is obviously ridiculous. The law should not automatically suppress the fact that police have shot and killed someone. Not only should it not automatically be suppressed, I’m not sure it should ever be suppressed. The death of someone at the hands of those exercising state power is an issue of the highest public importance.

Anyway, I thought this was important. And, as I have before, I sought permission from a Coroner to publicly discuss the salient details.

I should be clear, the law does not ban the publication of all police shooting deaths. Rather, the circumstances of this death, as relayed by police at their press conference, bring into play section 71 of the Coroners Act, which limits the discussion of particulars of the manner of a death if “there is reasonable cause to believe the death was self-inflicted”. I considered there was a chance that that applied here. It is difficult to see a distinction that could clearly distinguish a death resulting from someone purposefully stepping in front of a train as self-inflicted, but allowing that a death resulting from someone (especially someone unarmed) telling armed police officers that he was about to use a firearm could never be self-inflicted. As it happens, the Coroner agreed. Deaths at the hands of Police have previously been ruled suicides, and although there is no conclusion yet, there is at least reasonable cause to believe that may be the case here.

The death was on Sunday 2 August, the press conference on Monday 3 August, and I made my request for permission on the Tuesday. By Thursday, I had a response: “Coroner Greig will not be commenting about this case until the investigation is complete.”

I hadn’t asked for comment, so I followed up, and had a formal reply later that day:

It is early days in the inquiry into Mr Červeň’s death. However, given the reports in the media, it appears that section 71(1) of the Coroners Act 2006 may apply. Accordingly no person may, without the Coroner's authority, make public any particular relating to the manner in which Mr Červeň’s death occurred until her inquiry into the death has been completed. Such authority is not granted.

A man was dead, shot by police, and the public could not lawfully be told this.

I thought this was a little off.

The following day, I filed an application in the High Court, seeking a statutory review of the decision. To ensure there would be as little delay as possible, I also filed the necessary evidence, and my submissions. It had its first call a week and a half later, and was set down for second call for four weeks later (tomorrow, as it happens), allowing the Coroner and the Crown Law Office time to consider their position on the application.

And late Friday afternoon, I received a decision of the Coroner, granting the permission I had sought five and a bit weeks ago. Permission was granted to release the following particulars:

  • David Červeň was shot by police officers in Myers Park, Central Auckland on 2 August 2015.
  • David Červeň died as a result of the injuries he sustained when shot.
  • Prior to being shot, David Červeň had told attending police that he was armed.
  • After being shot, David Červeň was found to be unarmed. No weapon was found at the scene.
  • The Coroner has ruled that there is currently reasonable cause to believe the death was self-inflicted though this is in no way a concluded view on the matter.

This suggests to me one of the problems of the whole process of requesting permission from a Coroner. For a journalist, or a blogger, a request for permission to make public particulars of a death is a request to report what they would ordinarily report: quotes of eyewitnesses and information made public by police. That first, rough draft of history, not firm conclusions. But for a Coroner to give their approval to report a particular, that Coroner may feel it necessary to be satisfied that something is, in fact, a particular of the death.

And if that it is the approach, the system is only going to get worse. A bill to amend the Coroners Act recently went through select committee and is awaiting second reading. The bill contains some improvement over the current law: for example, it permits reports that a death is a ‘suspected suicide’. For most suspected suicides, that will enable a freer discussion in the media: the possible method is usually not of public interest. But the restrictions will still apply to all of those other examples I gave in previous look at this matter, like Facebook mourners. And it will still prevent publication (without permission) in cases like the one, where the manner of death is itself the story.

In other respects, however, the law is getting stricter. The penalty for a breach is increasing, and the law now more clearly proscribes the details that may be published, banning publishing not only the method (or suspected method) of a self-inflicted death but also the publication of “any detail (for example, the place of death) that suggests the method or any suspected method of the self-inflicted death”.

And perhaps most importantly, the bit of the law limiting the effect of the ban to potential self-inflicted deaths occurring in New Zealand has been removed.

The Select Committee notes in its report that:

This prohibition does not work well in practice. Although this reporting restriction applies to suspected suicides occurring in New Zealand, it does not cover overseas suicides, which are able to be reported in New Zealand media.

And then, without further explanation, they remove the words “This section applies in respect of a death if … the death occurred in New Zealand”.

I’m not really sure whether this means what it looks like it means. If Coroners currently have difficulty allowing the publication of a particular that they have yet to determine is a particular, I can only imagine the difficulty that will be presented when the Chief Coroner is asked for permission to publish particulars of a death over which she has no jurisdiction, and which no New Zealand coroner will ever investigate.

At some point, information arose suggesting, perhaps even giving rise to reasonable cause to suspect, that the deaths of those on Flight MH370 may have been a result of the deliberate action by a pilot. We may never know. But the suspicion is there, and it may be that should a similar event happen again, it would be illegal to tell New Zealanders that a plane has crashed, lest the manner of the pilot’s death be revealed. If the Select Committee’s unanimous recommendations are adopted, the Chief Coroner will find she has much broader job than she is expecting, with oversight not only of the New Zealand coronial system, but of coroners throughout the world.

Of course, the likelihood of anyone other than me actually bothering to ask for permission in a high-profile case seems low. And the likelihood of all the Facebook friends of who someone who overdoses, seeking permission before mourning is even lower.

There is some hope in the Coroners Amendment Bill. It does appear to be designed to speed up decisions on requests, recognising the urgency that requests for permission to publish particulars will have. But even the two days it took this time to get a first response is far too slow for a case like this. That it can take five weeks until a Coroner is satisfied that it is appropriate to grant permission to publish the fact that someone has been shot by police, when that information was released by a senior Police Officer at a press conference, is laughable.

Or it would be, if it hadn’t cost me $600 to get that far.

It is not too late for Parliament to fix this law. Realising that the law they’re re-enacting can ban the broadcast of police media conferences is a good place to start, and they can follow it up by limiting the law to New Zealand deaths at the very least. David Seymour, I’m looking at you.

And, in all its glory, the most expensive tweet I hope to ever send:


Update: Into the River

I noted in my last blog post, Into the River/interim restrictions, that I had applied to revoke the Interim Restriction order that is presently banning the distribution of Ted Dawe's award-winning you-adult novel, Into the River. Interim Restrictions orders have been relaxed several times in the past (generally to allow people temporarily banned from seeing a film to see the film so they can properly engage in the review process), so it was not wholly without hope.

Public Libraries of New Zealand,  the Library and Information Association of New Zealand Aotearoa, and the Publishers Association of New Zealand, also applied to have it revoked. I feel like I was in good company.

We received the decision earlier today. The application was refused. The temporary ban remains in place until the Board of Review makes its decision early next month.

The full decision follows. It does not really enage with any of the arguments that have been levelled against the decision, and, as with the original decision, does not even mention freedom of expression.


  1. I have received, through the Department of Internal Affairs, several applications for the revocation of the interim restriction order currently in existence in relation to INTO THE RIVER. Such applications have been made by Public Libraries of NZ, The Publishers’ Association of NZ, LIANZA and Mr Graeme Edgeler. I have given them careful consideration and have decided not to revoke the interim restriction order.
  1. The Board expects to meet on 2 October to consider the review which has been sought by Family First. That is the earliest practical date on which it is possible for the 5-member Board to meet, allowing sufficient time for the development and lodgement of submissions by eligible submitters. Those submissions will receive full consideration by the whole Board which considered the book at length in 2013 and imposed an R14 restriction.
  2. The main reason for the interim restriction order remains valid. To repeat it, it is important that the Board’s consideration of whether any restriction on availability is appropriate is not inhibited in any way by further distribution in the short period before the Board’s decision, whatever it is, is reached and published.
  3. In light of what has just been said, it is unnecessary to decide whether I am satisfied that each of the applicants for revocation is “detrimentally affected by the existence of the order” (s.51(2)(c) of the Act).

Dr D L Mathieson QC
President of the Film and
Literature Board of Review
14 September 2015


Into the River/Interim Restrictions

The Censor recently reclassified Ted Dawe’s award-winning young adult novel Into the River as “unrestricted” (.pdf). This decision is now to be reviewed by the Film and Literature Board of Review, whose President has imposed an interim restriction order, which means the book cannot be sold or distributed by anyone.

Essentially, the Board of Review is there to provide some community oversight over the decisions of the professional censors at the Office of Film and Literature Classification. While both are bound by the same laws, the basic idea is that if professional censors stray too far from community expectations, they can have the views of a wider group within the community made known to them. This goes both ways: the Board of Review has often lessened the restrictions imposed by the censor. Cruel Intentions was initially rated R18, but its rating was reduced in time for its video release to R16 (I have heard that the review was taken because distributors didn’t want to dilute the R18 brand, given the film didn’t actually contain sex). And it was a decision of the Board of Review over Saving Private Ryan that means the censor now rates films whose sole concern is that they depict "graphic and realistic war scenes” as R15, and not the R16 restriction the censor would have imposed.

There’s no automatic right of Review by the Film and Literature Board of Review, and the Board doesn’t make many decisions. It appears to have made two decisions in 2014 (including a review of five text message), and one decision in 2013 (their first look at Into the River, which changed rating to R14), and four in 2012 (including the US remake of The Girl with the Dragon Tattoo (confirming its R16 rating), and New Zealand Film Two Little Boys (reducing the censor’s R16 to an R15).

The Censor had looked at Into the River before, rating it “M (unrestricted and suitable for mature audiences 16 years and over) with the descriptive note 'Contains sex scenes, offensive language and drug use'”, but this decision was overturned by the Film and Literature Board of Review in 2013, which gave the book a unique R14 rating (Don Mathieson QC, the Board President (who has also imposed the Interim Restriction order), issued a rare dissenting view and would have rated the book R18).

This wasn’t all that long ago, so I was pretty surprised at news of the reclassification by the Censor. The Censor gets to make decisions, but these can be reviewed by the Film and Literature Board of Review, which gets to make (subject to High Court review) the final decision. As with all classification decisions, the Censor can revisit them after a time (it does so occasionally when asked, notably in respect of books banned years ago. In 2012, after the book ‘Bloody Mama’ (banned in 1971), was seized at the border, the Censor looked at it again, and reclassified it as unrestricted), but the general rule is that decisions stand for at least three years.

It’s been less than three years since that R14 decision of the Board of Review, so the Censor needed to be “satisfied that there are special circumstances justifying reconsideration”. The reasons given for finding that there were special circumstances were as follows:

Since this publication was classified R14 in January 2014 a number of factors have come to light which taken together amount to special circumstances justifying the reconsideration of the classification of the publication under s.42 of the Films, Videos, and Publications Classification Act 1993. The factors include the range of views expressed by the Film and Literature Board of Review, the capacity of public libraries to mitigate the injury to the public good which might but for the restriction flow from unrestricted access to the book, the shared view of libraries across New Zealand, in particular the 63 public libraries run by local government authorities, the impact that the restriction has had on the value of the book as a teaching resource, and the significance of the book as an aid to countering issues in New Zealand about bullying.

The problem that was presented to the Censor, and which has led to the censor deciding that the R14 restriction unreasonably limits freedom of expression, is that it appears that the R14 restriction is stopping people aged 14 and up from accessing the book. Any restriction precludes the book being on library bookshelves, or easily accessible in book stores, because it could be picked up and by 13 year-olds, and most bookstores and most libraries do not have R14 (or even R18) sections to which children are not admitted. While perhaps not disagreeing that the book is appropriately limited to teens, the Censor has decided that the act of restricting the book has had a detrimental effect on freedom of expression for those who would appropriately have access to it, and that in light of the importance of the book, this restriction is unreasonable, especially in light of other things that can be done to limit the harm done to children who might access it.

I really like the decision of the Censor, and think that the appreciation of the unintended consequences of a possibly-justifiable-in-theory restriction is a welcome advance for freedom of speech in New Zealand. But it is probably no surprise, given the past (recent) controversy, that those who sought that the book be classified last time, would again seek to review the decision.

So that there is to be another review by the Film and Literature Board of Review isn’t surprising. What is noteworthy is that, pending the review (which might take a month or so), the President of the Board of Review has imposed an interim restriction, which bans anyone from supplying it to anyone else.

And there is a problem with this.

The Board of the Review said banning 14 year olds from reading Into the River would be unjustifiable, and even the President of the Board, who would have gone further, didn’t think everyone should be banned from reading it. Yet, for the next month or so, that’s basically what has happened (although if you already have a copy, you’re not breaking the law, you just can’t supply one to someone else).

I don’t think this an appropriate or proportionate used of the Interim Restriction power. When you’re talking about a publication like the film Baise-moi, interim restrictions can make sense. There were arguments that Baise-moi shouldn’t just be restricted, it should be banned. We have reviews and appeals for a reason, and the power to make an interim restriction order is in the law to allow the process to occur fairly. If those who consider a publication to be so detrimental to the public good are to be able to pursue this properly through the review process, or in the Courts, it’s appropriate that there is a discretionary power to restrict a publication while that is being sorted through. Without such a power, the damage (such as it is) that publication can supposedly do could be done, when, as a matter of law, it shouldn’t have been allowed.

But Into the River is not Baise-moi. There were arguments that Baise-moi was so injurious to the public that allowing anyone to see it would be harmful. No-one is arguing that Into the River should be banned. And yet, the Interim Restriction is a ban.

For me, the problem is way the Interim Restriction Regime is set up. It’s designed for films like Baise-moi, but in situation like this, it leaves the President of the Board of Review with two options: allow the decision of the Censor that Into the River should be unrestricted to stand while the board makes its decision, or ban the book while the board makes its decision. He doesn’t have the power to say: Into the River has been R14 for the last 18 months, can we leave it at that for another month while we make a new decision, in light of the new evidence? That's probably a hole in the law, but its certainly not one I'd have picked up before today.

The Board has already looked at Into the River and decided that, if 12 and 13 year-olds read it, there is a risk they may be harmed. I suspect that the President of the Board of Review has had that decision in mind when he made his decision: if the Board was “right” and 12 and 13 year-olds will be harmed if they read Into the River, then that harm can now occur. It is possible that the Board will maintain its view, and the President of the Board sees it as his responsibility to maintain the status quo ante, in light of that still pretty recent decision. For the next month or so, 12 and 13 year-olds will be banned from accessing Into the River, it’s just that, unfortunately, the only way he can achieve that end, is to ban everyone from accessing it.

In my mind, the decision is clearly wrong. Whatever risk of harm there is, that harm is nowhere near the highest level, and the possibility of that harm is not enough that it is justifiable to ban everyone from accessing this book, even for a month. The Bill of Rights permits the balancing of societal interests, against individuals’ interests, but in a situation like this, where everyone agrees that the adult population should be permitted to read this book, the possibility an R14 restriction may come into in force in a month’s time does not come close to providing a demonstrably justifiable reason for a temporary ban.

But there's not really a lot any of us can do about it in the meantime. [edit: as Andrew Geddis notes in the comments, it is possible to apply to have an Interim Restriction Order revoked, if one is "a person ... detrimentally affected by the existence of the order". As such a person (I would like to buy the book), I have applied to have the order revoked. I see no reason why there shouldn't be more than one application, however.] Unfortuantely, it's just one more thing to add to the list of problems with our censorship laws.


I am grateful to the Association of New Zealand Booksellers for uploading the decision granting the Interim Restrict order (here as .pdf). Why this is not available on the DIA website, or the website of the Censor, I am not sure. The reasons given for the interim restriction are:

This order is in the public interest for the following reasons:

1. The classification of Into the River under the Act is a matter of wide public concern, as evidenced by the volume of submissions to the Classification Office and published comments.

2. The decision of the Classification Office would radically alter the decision of the Board of Review.

3. It is particularly appropriate that the Board should have an opportunity to consider the publication a fresh without being inhibited in any way by any distribution occurring between now and the date of the Board’s decision.

4. It is debatable, and a matter of independent public interest, whether the Chief Censor acted lawfully under section 42(3)(b) of the Act in deciding that “special circumstances” exist.

5. It is highly arguable whether the Classification Office has reached the correct conclusion on the application for reconsideration before it.

6. The correct classification of Into the River under the Act will operate as a semi-precedent, and will exert a significant influence upon other decisions portraying teenage sex and drug-taking.

As you can see, there is no consideration of the wider effect of the order.