Puni Puni Poemy: Banned in New Zealand

The majority of the Board therefore deems the publication "Puni Puni Poemy" to be objectionable for the purposes of the Act in that it does "promote or support or tend to promote or support" the exploitation of children or young persons for sexual purposes. It also shows acts of torture or the infliction of extreme violence or extreme cruelty without showing consequences for the perpetrators. The Board finds that the amount of extreme violence and extreme cruelty does "tend to promote or support" the activities even if in anime form.

Puni Puni Poemy — Decision No. 1 of the Film and Literature Board of Review, 21 June 2005

Introduction

In December 2004 the New Zealand Office of Film and Literature Classification banned the anime Puni Puni Poemy, on the grounds that it "tends to promote and support the exploitation of children and young persons for sexual purposes, and to a lesser extent, the use of sexual coercion to compel persons to submit to sexual conduct." As a New Zealand anime fan who had seen PPP, I strongly disagreed with this decision: so, after online discussions with other like-minded fans, I sought a formal review of the DVD's classification. It was re-examined by the Film and Literature Board of Review in April 2005, but the Board's decision of June 2005 also found PPP to be objectionable.

As a result, PPP remains banned in New Zealand and it is illegal to possess, import or sell the DVD. This also applies to any other media identical in content.

This webpage documents the history of the PPP decision and subsequent review. Despite my personal involvement in the case I have attempted to stay off my soapbox and keep to the facts. My opinions can be found in my submission to the Board, which along with other original public documents is presented below. Anyone researching this topic is welcome to contact me for further information.

Disclaimer: I am not a lawyer. For authoritative advice on censorship matters, please contact the OFLC or a qualified legal professional.

Censorship in New Zealand

This section gives a brief overview of New Zealand censorship law and the government agencies involved. Please see the OFLC website for further information.

Legislation

Censorship is governed by the Films, Videos, and Publications Classification Act 1993 and its subsequent amendments. The purpose of the Act is "to consolidate and amend the law relating to the censoring of films, videos, books, and other publications; and to [replace] the Indecent Publications Act 1963, the Films Act 1983, and the Video Recordings Act 1987". It does this by introducing a very broad definition of "publication" that also covers films, videos and even computer games - basically, anything that "is capable of being reproduced or shown as one or more ... images, representations, signs, statements, or words".

Generally speaking the Act does not cover TV or radio broadcasts: these are dealt with separately by section 4 of the Broadcasting Act 1989.

For a publication to be banned it must be classified as objectionable under section 3 of the FVPC Act. You absolutely need to read s3 to understand the PPP decision, because that's where the battle was fought. Particularly for readers familiar with US law, you should note that a publication in cartoon form can still be objectionable: the law is concerned with the effects of the publication's availablity in NZ, not (primarily) with any harm that may have been done in its making. This means, for example, that animated child porn is still "injurious to society" in the eyes of NZ law, because its availablity "promotes or supports" the sexual exploitation of children by depicting child sex abuse as acceptable.

Roughly speaking, s3 sets out a three-step process for the classifying body to follow:

  1. Does the publication "pass through the subject matter gateway", by dealing with one or more of the matters listed in s3(1)? If not, stop: the publication is not objectionable (however it may still be restricted, e.g. by age)
  2. Does the publication "promote or support, or tend to promote or support" one or more of the activities listed in s3(2)? If so, stop: it is automatically deemed to be objectionable. No mitigating circumstances apply. Game over.
  3. Otherwise, weigh up the considerations in s3(3) and s3(4) to determine the publication's status

Any publication that is classified under the Act first needs to be tested against s3. If and only if it is found not to be objectionable, other parts of the Act lay out how the publication should be rated.

Case Law

New Zealand is a common law jurisdiction, which means that the laws in effect are a combination of Acts of Parliament, Regulations, and court decisions (see this article on the New Zealand constitution for more detail). After an Act or Regulation comes into force, it is the role of the courts to apply it. This includes interpreting the meaning of the law, based on general legal principles and precedent.

Since the passing of the FVPC Act, several significant court decisions have been made on its interpretation - copies can be found on the FLBR website (registration required). The most important ones for PPP are the Moonen decisions of the Court of Appeal, named after the appellant Gerald Moonen - their legal significance is much wider, however, since they establish a fundamental principle of how the New Zealand Bill of Rights Act 1990 relates to other legislation.

A very simplistic summary of Moonen's relevance to censorship is:

  1. Censorship is inherently contrary to the right of freedom of expression
  2. However, it is a necessary evil provided for in law (unlike the US Constitution, for example, our Bill of Rights does not override other legislation)
  3. Even so, a court interpeting censorship law should strive to minimise the inconsistencies with the Bill of Rights
  4. In particular, this means that censorship law should be interpreted in the narrowest terms possible that are still consistent with its aims

There is much, much more to the decisions than this - although I haven't read the article myself, anyone serious about this topic should consult Andrew S. Butler, "Judicial Indications of Inconsistency - A New Weapon in BORA Armoury?" [2000] NZ Law Review 43.

One practical implication of Moonen is that a publication does not "tend to promote or support" the activities banned under s3(2) merely because it depicts them. The classifying body is required to show that there is something about the manner of depiction that constitutes a tendency for promotion or support. There is no question that PPP depicts s3(2) material - the issue was whether the manner of depiction met the Moonen criteria.

Public Bodies Involved in Censorship

The FVPC Act sets out the responsibilities and authority of various agencies relating to censorship matters. In general, these agencies are either part of, or associated with, the Department of Internal Affairs. Other agencies such as Customs and the Police are also involved in enforcing the law. A simplified view of how the system works is that it has four levels:

  1. The Film & Video Labelling Body rates most non-controversial films and DVDs (including the majority of anime). In terms of the Act, the Labelling Body does not actually "classify" films: if something falls outside its scope, such as a film likely to receive a restricted classification, it must submit the film to the OFLC for classification.
  2. The Office of Film and Literature Classification classifies publications according to the Act. Unlike the Labelling Body, it has the power to ban a publication by classifying it as objectionable.
  3. The Film and Literature Board of Review reviews classification decisions made by the OFLC. It does this by considering the publication afresh - a review is not an appeal against the OFLC decision, but a completely independent process. However, the Board would normally consult the OFLC and ask it to make a submission.
  4. Decisions of the FLBR may be appealed to the High Court, but only on questions of law. The High Court will not hear appeals on questions of fact. For example, you could appeal on the grounds that the FLBR misinterpreted the Act, but not that it misinterpreted the publication under review.

My involvement began after the OFLC delivered its decision, and consisted of applying to the FLBR for a review of PPP's classification. To do this I first had to apply to the Secretary for Internal Affairs for leave to seek a review. Once leave was granted, I made a written submission to the Board, followed by an oral submission when it met to consider PPP.

Timeline and Documents

2004-11-09
The Labelling Body submits PPP for classification on behalf of Gamewizz Interactive (now Gamewizz Digital Entertainment), who plan to release it in New Zealand through their Madman Entertainment NZ brand.
2004-12-17
The OFLC releases its decision (72KB MS Word doc - free viewer available), classifying PPP as objectionable under s3(2)(a) and s3(2)(b) of the FVPC Act. The decision is announced on the Madman customer forums that night by Madman product manager Daniel Berry. Much wailing and gnashing of teeth ensues.
Update: Sadly the forums no longer exist. As far as I know they were never archived, which means this part of the PPP record has been lost.
2004-12-19
Deciding that wailing and gnashing my teeth doesn't really cut it, and after some hasty research, I write to the Secretary of the FLBR enquiring how to go about seeking leave to apply for a review. At this stage I am unsure whether I can (or even should) proceed, but I feel like I have to do something.
2004-12-22
The Board Secretary responds to my letter, enclosing the required paperwork. (As an aside, in all my dealings with Internal Affairs I received a consistently high level of service. I may have had some harsh words to say about the OFLC's decision, but as a taxpayer I appreciate the professionalism of the staff I dealt with.)
2005-01-18
OFLC decision #401827 on PPP is officially published in the List of Decisions for December 2004 (see the NZ Censorship Database for details). From this point I have 30 working days to apply for a review, but if I wish to do so I first need to get the leave of the Secretary for Internal Affairs.
2005-01-21
I take a deep breath and write to the Secretary, laying out my grounds for wanting a review (these are quoted in the Secretary's decision - see below).
2005-02-03
The Secretary for Internal Affairs grants me leave (22KB PDF) to apply for a review. I have until 2005-03-01 to do so. I get a little confused at this point thinking that I need to include my written submission with my application: in fact this is not the case, but it leads to me applying at almost the last minute.
2005-02-24
I submit my application for review, along with my submission to the Board (35KB PDF). Although it's all my own writing, I couldn't have done it without the thought-provoking suggestions and encouragement I got from the Madboards. Thanks guys!
2005-03-08
The Secretary to the FLBR confirms that the Board will hold its hearing in Auckland on 2005-04-05. I am invited to attend and make an oral submission.
2005-04-05
I fly up to Auckland (from Dunedin) to attend the hearing. The Board meets at the Television NZ building to view PPP for itself that morning (apparently they watched it only with the English dub, btw). That afternoon I make my oral submission, which is nerve-wracking but generally positive: as I said on the Madboards afterwards, I came away feeling that if nothing else the Board had given me a fair hearing. I was also helped by the wonderfully calming influence of Zeb Ahmed, a fellow Madboarder who worked in the building and attended the hearing under the title "support person" (which, despite sounding so twee, actually turned out to have an element of truth to it... *hugs Zebbikins*).
2005-06-21
The Board releases its decision (65KB PDF). By a 5-3 majority it classifies PPP as objectionable under s3(2)(a) and s3(2)(f). One minority opinion, shared by two of the three dissenting members, is that an R18 restricted classification is appropriate; the other states that R16 would be acceptable.
2005-07-25
The OFLC publishes the Board's decision as required by s55(1)(e) of the Act. At the time of writing, this decision represents the legal status of PPP in New Zealand.

Postscript

In October 2005 I returned to Auckland for the Armageddon anime / sci-fi / game convention. I finally got to meet a bunch of people I knew online through the Madboards, and learned more about "devil killer" sake than I think I ever needed to know. The highlight, however, was the forum dinner we organised with guests Tiffany Grant and Matt Greenfield of ADV Films. It was ADV who licensed PPP for distribution in the US - both Tiff and Matt worked on the English adaptation, so its banning was a topic of some interest (as Tiff observed, at least they're in good company).

It's too big to scan, but I have a gorgeous nekomimi-Asuka-with-kiwi poster drawn by Liz Leaper from the Madboards and signed by Matt and Tiff. Matt's message reads:

Hmm... Asuka. Neko Costume. Cat Ears. Kiwi. Any more fan service and this drawing would be banned in New Zealand.




Last update 2010-11-30. Contact webmaster@hikari.org.nz