Copy of second application to Board President – Ms Claudia Elliott, dated 27 June 2008
Copy of Letter [Media Reports Abridged]
The Society for Promotion of Community Standards Inc.
P.O. Box 13-683 Johnsonville
Attention:
Ms Claudia Elliott
President Film and Literature Board of Review
C/- Owen Davie
Board Secretary
Department of Internal Affairs
Wellington
27 June 2008
Application for Interim Restriction Order against The Peaceful Pill Handbook (New Revised International Edition)
Dear Ms Elliott
The Society wishes to make a fresh application under s. 49 of the Films, Videos, and Publications Classification Act 1993 (“the Act”), for an Interim Restriction Order to be applied “as soon as practicable” to the restricted publication entitled The Peaceful Pill Handbook (New Revised International Edition) for the reason “that it is in the public interest to do so” [ss. 49(1) & 49(2) of the Act].
A careful and thorough consideration by the President of this new application is warranted because “definitive evidence” has now become available to establish that the book will shortly be distributed by Dr Nitschke for sale from at least 20 retail stores in New Zealand and displayed and sold by him at a seminar and workshop to be run in Christchurch and Dunedin on 5 & 6 July 2008 respectively. Five media reports are copied below and the relevant sections are highlighted providing part of this evidence. We can find no evidence that these events are strictly limited to participants who are at least aged 18 years of age. If you provide more evidence please contact me.
In your Decision No.3 dated 20 June 2008 in which you declined to grant an interim restriction order to the Society, you stated in par 77:
“There is no definitive evidence before me as to when The Peaceful Pill Handbook will be available for purchase from retail stores in New Zealand or how widely it will be stocked….”
It appears to us that you may have overlooked evidence that was provided to you. For example, in its application for leave to the Secretary dated 11 May 2008 – a copy of which supplied to the President to form part of our submission for interim restriction order – the Society stated:
“According to a report in the Sunday Star Times (11/05/08), this book contains “graphic descriptions of ways people can kill themselves” and “is set to go on sale in New Zealand within weeks”. It has been classified R18 by the Office of Film and Literature Classification, headed by Chief Censor, Bill Hastings.
The Sunday Star Times reports that Hastings said “it could significantly increase the risk of young people killing or harming themselves and had the potential to greatly disturb or shock them”.
Since your decision of 20 June was released I have been contacted by Jenny Ling, the Dominion Post journalist for an interview. She wrote two of the recent articles (copied below) dealing with the controversy involving Dr Nitschke’s book. She has confirmed that she has spoken personally to Dr Nitschke about his intentions to distribute the book in New Zealand and his planned seminars. He has confirmed, as reported, that copies of the book will be made available for sale at the forthcoming advertised seminar and workshop (5 & 6 July 2008) and distributed after that “till August” for sale in bookshops throughout the country.
Dr Nitschke is reported to be “thrilled” that the first application for an injunction was turned down by the President as “It gives us [Dr Nitschke and his partner] till August [2008] to get the book distributed” throughout New Zealand (Dom Post 26 June 2008). Here is a clear and unequivocal statement of his intention to distribute the book for sale in New Zealand..
The Board hearing on the book’s classification is to be heard on 25 August 2008 and we understand that Dr Nitschke and/or his counsel have been invited to make a written submission to the Board by 11 July 2008.
Please note the following highlighted definitive evidence pertinent to our application for an interim restriction order………
Fight continues to ban euthanasia book
By JENNY LING – The Dominion Post Thursday, 26 June 2008
http://www.stuff.co.nz/4597011a11.html
Pro-life groups trying to stop a euthanasia book from going on sale are vowing to fight on despite their latest efforts being rejected.
The Film and Literature Review Board declined last week requests by Right to Life and The Society for the Promotion of Community Standards for interim restriction orders on Australian euthanasia campaigner Philip Nitschke’s Peaceful Pill Handbook.
The order would have stopped distribution to New Zealand shops till a review of chief censor Bill Hastings’ decision to allow its sale was heard…….
Dr Nitschke, founder of pro-euthanasia group Exit International, said copies would be available at a Christchurch conference on July 5 before being distributed to bookshops.
“We are thrilled the injunction has been turned down. It gives us till August to get the book distributed.”
Another workshop is to be held in Dunedin on July 6.
Dr Nitschke said his group was looking for a Dunedin venue after the original venue, the Kingsgate Hotel, cancelled the booking because of negative phone calls and fear of protests.
END
Pro-life appeal stalls sale of suicide book
JENNY LING – The Dominion Post Mon. 9 June
http://www.stuff.co.nz/4577055a11.html
A euthanasia campaigner’s book outlining ways in which people can kill themselves could be banned for a second time if an appeal from pro-life advocates is upheld………
The book contains graphic details and diagrams about how to commit suicide and is banned in Australia.
It was banned in New Zealand last July but the Office of Film and Literature Classification lifted the ban on May 9 after the book was revised.
It was expected to be in bookshops this month but retailers are still awaiting their orders.
Yesterday, Dr Nitschke, an Australian euthanasia campaigner, said he was not impressed with the appeal.
The book would now not go on sale till after a conference called Voluntary Euthanasia Matters run by Exit International in Christchurch on July 5.
About 20 New Zealand bookshops had agreed to sell the book, including Dymocks in Auckland, he said.
Dymocks in Wellington and another leading retailer in the capital, Whitcoulls, said they had no plans to stock the book. “We don’t have it and we won’t be getting it,” a Dymocks spokeswoman said.
Wellington’s Unity Books said it had a significant number on order. “It’s an important book,” co-owner Tilly Lloyd said. “It might not be a book that sellers agree with, but it is important for customers who want it to be able to get it.”
Ashley Bell, co-owner of Insight Books in Upper Hutt, said he planned to have a few copies available.
Nitschke welcomes suicide book decision
AAP | Wednesday, 25 June 2008
http://stuff.co.nz/4595506a4501.html
Australian euthanasia campaigner Dr Philip Nitschke has welcomed a decision by New Zealand authorities that will allow him to sell his controversial book in the country.
Nitschke said he was heartened by Friday’s decision to reject an application from pro-life groups, who wanted to stop the distribution of the Peaceful Pill Handbook.
The book, which describes how to commit suicide, was last year banned by New Zealand’s Office of Film and Literature Classification (OFLC).
But its distribution was later allowed, as long as it was sold sealed, to people aged over 18.
Earlier this month, the Society for the Promotion of Community Standards, and Right to Life New Zealand sought a fresh order restricting its distribution.
“The decision by the OFLC had demonstrated the open attitude of New Zealand to the important question of censorship,” Nitschke said in a statement today.
“New Zealand’s approach to censorship stands in stark distinction to the approach taken by the government in Australia, where the book remains a banned publication.”
Nitschke’s euthanasia group Exit International is due to hold a meeting in Christchurch next month, where it is expected the book will be sold.
_____________________________________________________________________
Dr Death’ to talk in Dunedin
By James Boucher on Fri, 6 Jun 2008
Banned in Australia and initially in New Zealand, Peter Nitschke co-authored The Peaceful Pill Handbook.
Dunedin civic leaders are remaining tight-lipped about a scheduled talk and euthanasia workshop in the city next month by Australia’s Dr Philip Nitschke, but a local advocate says there is enough interest here to warrant it……
Exit International Dunedin chapter leader Paula Westoby is charged with the task of promoting Dr Nitschke’s Dunedin workshop….
Dr Nitschke’s workshop is scheduled for Sunday, July 6, at the Kingsgate Hotel. Kingsgate Hotel management declined to comment when contacted by The Star.
Mrs Westoby said Dr Nitschke’s session would begin with a free hour long talk.
The talk would be followed by the opportunity to become an Exit International member for $50 and remain for a two hour workshop….
________________________________________________________________________
The Society has contacted Mrs Paula Westoby (Tel. [deleted] in Dunedin who belongs to the Dunedin Chapter of Exit International and was mentioned in The Star’s article (above) dated 6 June 2008.
She has confirmed that Dr Nitsche will make available – distribute/sell copies of his book at an Exit International Seminar being held in Christchurch at the Hotel SO on Saturday 5 July 2008.
[Hotel SO – Inner-city Christchurch accommodation offering affordable style and … 165 Cashel St, Christchurch |; 0508 165 165 |; info@hotelso.co.nz
http://www.hotelso.co.nz/Home ].
Westoby has confirmed that the organisers of the Exit International workshop, which was to be held at the Kingsgate Hotel in Dunedin, are seeking a new venue after Kingsgate management refused to stage the seminar following numerous complaints from the public about Dr Nitschke holding a workshop there that promotes suicide. His books will be for sale at the Dunedin event.
On 23 June 2008 the Society contacted Ashley Bell, co-owner of Insight Books in Upper Hutt [131 Main St, Tel. 939-2976], – the man who is reported to have said that he planned to have a few copies available. [Dom Post 9 June 08]. He says he has received “about a dozen orders” for the book.
The Society has also contacted Wellington’s Unity Books co-owner who said on 23 June that they have “18 special orders” recorded for the book, meaning 18 people have committed to buy it and they are awaiting receipt of the book sometime after 5 July 2008. They have told us it will be available for purchase directly from their shelves “shortly”.
Public interest issues
The Society has already supplied the President with comprehensive documentation showing that a significant proportion of New Zealanders ages 18 years of age and over are vulnerable to injury through exposure they might have to The Peaceful Pill Handbook due to their mental state etc. We request that all this information be made available to interested parties who request it and that it all be taken into consideration in this current order application.
The concept of “in the public interest” found in section 49 of the Films, Videos, and Publications Act 1993 (“the Act”) is derived from The Cinematograph Film Act 1961 – “any other considerations it [the censor] considers relevant affecting the public interest”. The latter concept, as McMullin J. ruled, is different from the more general concept of “the interests of the public generally” found in other legislation (see Licensing Authority and Another [1978] 1 NZLR 851 McMullin J.]. [Emphasis added].
The Society contends that the book in question should be classified “objectionable” and if this is to be the determination of the Board, then the distribution of this book for sale in bookshops around the country by Dr Nitschke, is by definition “likely to be injurious to the public good” based on the section 3(1) definition of “objectionable” found in the Act and reasons set out in our earlier submissions. It therefore follows that the imposition of an interim restriction order would prevent likely injury through the distribution of the book until such time as the Board completes its review.
As McKenzie J. stated, section 49 of the Act provides the President with a “prophylactic jurisdiction” that is “designed to preserve the status quo” AND such an order forms part of the statutory process. However, Dr Nitschke rejects the right of the Society to seek the relief such an order provides because he knows it will curtail has stated plans to distribute the book for sale in New Zealand from 5 July 2008 onwards. He appears to be motivated purely by self-interest and commercial gain (Hundreds of people have committed suicide after being influenced by his book).
The effect of an interim restriction order will be to impede importation for supply or distribution of the book, impede supply or distribution to another person, and possession for the purpose of supply or distribution and display. This is exactly what it is designed to do to safeguard the interests of the public and ensure that genuine relief is provided to the review applicant.
Some years ago Hammond J. granted the Society an order in relation to the film Baise-Moi and ruled that the distributor was “chancing its arm” in promoting a film that might be ruled objectionable. He saw merit in granting an order as it served in his view, to protect the integrity of the classification process. The same reasoning can be applied with respect to the granting of an order with respect to The Peaceful Pill Handbbook.
If Dr Nitschke is allowed to distribute his book throughout New Zealand prior to the completion of the Board’s review, the review process will, in the Society’s view, be “rendered nugatory” (per Mackenzie J. par [31] referred to in the President’s decision dated 20 June 2008). To argue otherwise is to commit a serious legal error given the clear definitive evidence provided by the Society that the book is shortly to go on sale throughout New Zealand following Dr Nitschke’s seminar/workshop involvement in Christchurch and Dunedin on 5 & 6 July 2008.
Dr Nitschke’s book was intercepted by NZ Customs officials in late January 2008. He did not pay the normal classification fee of about $1,200 as he did not submit it for classification under s. 13(1)(c) of the Act. He was clearly “chancing [his] arm” (to use the phrase used by Hammond J.) in attempting to bring a book that had been banned in New Zealand and Australia, into this country from Australia.
The President has stated that the redacted version, the subject of the Society’s current order application, “was voluntarily submitted for classification [by Dr Nitschke] without being legally required to do so” (Par. 23, Decision 20 June 2008). This is not correct and will need to be brought to the attention of the High Court in any further legal proceedings relating to this order application.
The President appears to have relied on misconstrued the submission from the Chief Censor’s Office on this point, which she summarises in her decision of 20 June at par 23:
“The book was voluntarily submitted for classification without being legally required to do so. The book has been redacted.”
This statement is in error, or at best misleading.
One copy of the book The Peaceful Pill Handbook (New Revised International Edition) was submitted on 5 February 2008, by the Comptroller of Customs, to the OFLC under s13(1)(a) for a decision on its classification (Ref. 1).1
It was NOT submitted by Dr Nitschke himself or his agent. He claimed to media, after being reportedly held for three hours in detention by NZ Customs officials at the airport, that he brought the books into the country for the purpose of submitting them to the Chief Censor for classification. This may be so, but the fact remains that he never paid the application fee of about $1,200 to have the book classified and there is no documentary evidence to establish that he or his counsel wrote to the Chief Censor Bill Hastings indicating that his intention was to bring the book into the country for the purpose of submitting it for classification (the Society has obtained all relevant documentation from the OFLC using the Official Information Act).
In a document dated 1 February 2008 from Helen Veysey, Investigator, Investigations & Response, NZ Customs Service Auckland, addressed to Avril Miles, Operations Analyst, NZ Customs Service, Wellington it states:
Referral of publication to the OFLC for Classification
Please find enclosed the following publications for referral to the Office of Film and Literature Classification. These publications have been detained for examination pursuant to section 152 of the Customs and Excise Act 1996 –
‘The Peaceful Pill Handbook’
This publication was classified as objectionable in June 2007, OFLC No; 700240
The Classification Office has requested the publications be submitted under Section 13(3) of the Films, Videos & publications Classification Act 1993.
The importers are:
Philip Nitschke
C/- Quest Ponsonby, 68 Ponsonby Rd, Ponsonby…………..”
_______________________________________________________________
It was the Chief Censor “on his own motion [who] determine[d] that [this] publication should be received for examination by the Classification Office.” (see s. 13(3) of the Act). It was the Chief Censor who, by way of a notice in writing, who directed the Chief Executive of the New Zealand Customs Service or the Secretary to take all reasonable steps to obtain a copy of the publication and submit it to the classification Office.
Clearly, the intentions of Dr Nitschke as reported in the New Zealand media and the evidence ‘on the ground’ must be taken into account by the President. Dr Nitschke is coming to New Zealand shortly to gain all the media attention and publicity he can garner for the purpose of selling and distributing his books that the Society contends should be classified “objectionable”.
Society for Promotion of Community Standards Inc.
References
1. Letter dated 7/02/08 from Bill Hastings, Chief Censor, Office of Film and Literature Classification to Avril Miles, Operations Analyst, Intelligence Planning and Coodination Group, New Zealand, Customs Service P.O. Box 2218 Wellington.
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