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25 July THE NEW ZEALAND GAZETTE 1253
NATURIST OR NUDIST BOOKS AND MAGAZINES
One group of documents we are called upon to consider includes a series of Health and Sunshine special editions, published at Harrow by Sun and Health Ltd., as follows—
i—Naturist Youth at the French Coast, Montalivet. Reprinted 1966.
vii—Koversada, a Declaration of Love for a Small Island. 1966.
viii—Bright Sun, Savage Scenery. 1966.
x—Sun, Sand, and Ocean at Montalivet. 1966.
xi—Young and Joyful, La Chataigneraie. 1967.
xiii—Homesick for the Mountains: Naturism in Switzerland and Austria. 1967.
Other titles in this group are:
Ortil's Naturist Youth in Greece, No. 102. Hajo Ortil.
Corsican Naturism, No. 103. Sun Seeker. 1967.
Naturism in the Mediterranean, No. 104. Ed., Frank Stephens. 1967.
Naturism in Austria. No. 105. A. Schultz-Naumburg. 1967.
Sun Seeker. No.144. Ed., Frank Stephens. 1967.We place in a second group:
What is a Woman?, by William M. Graham. Elysium Inc., Los Angeles. 1966.
Schonheit Im Bild. Band I—Dr Werner Loges; Band II—A. Baege; Band III—Andre de Dienes. ("Beauty and Nature", Vol. I, II, III.) Ed., Fankhauser. Thielle, Switzerland.
and in a third group:
Nudist Nudes, by Ed. Lange. Elysium Inc., Los Angeles. 1965. (Repr. of first edition, 1964.)
The Shameless Nude. Introduction by Ed. Lange. Elysium Inc., Los Angeles. 1965. (Repr. of first edition, 1963.)
Sun-Warmed Nudes, by Andre de Dienes. Elysium Inc., Los Angeles. Lyle Stuart Inc., New York. 1965.
One thing is common to all these journals: they are composed of, or primarily feature, photographs of the nude form; entirely or predominantly of the nude female form.
We were addressed at length by Mr Savage, Crown Counsel, and by Mr Campbell, the managing director of the Waverley Publishing Co. Ltd. Mr Savage called two witnesses and Mr Campbell put in numerous photostatic exhibits.
At an early stage an interim order was made prohibiting publication of the names of parties or the titles of the publications.
Mr Savage first called Mr Cousins, for the last 16 years president of New Zealand Sunbathing Inc. Mr Cousins gave evidence that certain of the journals were acceptable within his movement, but that others featured photographs too posed to be regarded by his members as bona fide from the point of view of naturism.
The Crown's next witness was Senior Sergeant Lark, of the New Zealand Police, who said that "girlie" magazines were part of the stock-in-trade of the pervert bent on seducing boys or younger men. He was not asked to give specific titles, but indicated that the journals were some which clearly indicated genital areas.
We have given careful attention to this evidence and have considered the argument put forward: we have perused the photostats and journals presented to us.
We take notice that there is in the community widespread scepticism, which we share, as to how far printed matter conduces to the commission of offences against the law. Subsection (1) (a) of section 11 requires us, in determining indecency, to take into account the likelihood of corruption; but in the case of a document which is not otherwise objectionable this falls short of a direction that we should assume it to be inherently indecent because it may be used in a particular way. Nude photographs may no doubt be used in an attempt to corrupt young people; but so may old masters, or pictures of famous statuary, or even holy writ. We question whether certain of the photographs which have come under our notice would provide the would-be seducer with very much assistance. It is the spotlighting of the unfamiliar nude form that gives reproductions of photographs any special attraction they may have for the curious. If pleasant and unretouched nude pictures were as common in the community as it appears they are in the nudist clubs, then it is likely that their production would be greeted with no more unseemly excitement than it is there.
We are inclined to deprecate the practice of painting out pubic areas in health or naturist magazines, and we do not believe the Act requires that young people should be kept in ignorance of the appearance of the adult form.
We do not agree with the suggestion that was made to us that members of naturist clubs should form a special class of persons privileged to see publications not available to other people, nor with another suggestion that practising nudists (or naturists), whether in clubs or not, should form such a class.
We are of opinion that natural and straightforward nude photographs or collections of them in reproduction constitute a first category of publications and we regard them as unexceptionable.
We consider that other pictures or collections may fall into a second category, in which nature combines with art to produce pictures which are not unacceptable; perhaps a little more posed and with greater emphasis on the beauty of the nude human body, but in no way unpleasant or exaggerated, and without undue emphasis on genitalia or reproduction of detail. We consider that in absolute terms publications in this class could do little harm; but, taking into account, as we must, the situation in the community, we can only take what steps we may to restrict the flood of borderline publications which we believe would follow too great relaxation. To allow unrestricted entry to any great number of journals in this class would, from sheer over emphasis, be contrary to the public interest. A classification which will operate as a restriction on display will best give effect to the intention of the Act as far as publications of this kind are concerned.
There is a third category of photographs, often very skilfully produced by celebrated photographers, which appear to be deliberately unnatural or artificial, and occasionally ugly, grotesque, or contrived. These we believe to be indecent.
Because Counsel for the Crown has at this hearing spoken at some length on the process by which, in his view, we should arrive at our decision, it is proper that we should address ourselves to this point; what we have to say is of general application and may be taken to govern all the conclusions at which we arrive.
Mr Savage contended that the question of indecency is first to be determined in the light of the ordinary dictionary definition of the word; but then in terms of the enlarged definition of section 2, which extends the meaning to include "describing, depicting, expressing, or otherwise dealing with matters of sex, horror, crime, cruelty or violence in a manner that is injurious to the public good"; but with the proviso that the determination was to be made by an objective assessment of the standard of the community.
As to the ordinary dictionary meaning of the word "indecent", counsel claimed that the word means unacceptable by the current standards of the community.
We have consulted dictionaries. The definitions given in the Oxford English Dictionary are of considerable authority and, in the case of this word, are similar to the definitions in other dictionaries. Of the three meanings given we think the third is the most apposite:
We read these definitions in the light of the derivation of the word decent, which means what is fitting— indecent means by derivation what is not fitting.
Counsel has suggested that our function is to assess and apply the standards of the community, as far as we can objectively do so, and has added that this may be an impossible task.
Despite the misgivings expressed by Gresson P. in the Lolita case (1961 N.Z.L.R. (C.A.) 542) as to the difficulty of assessing contemporary community standards, we feel that we are bound by the decision of the Full Court in Robson v. Hicks Smith and Sons Ltd. (1965 N.Z.L.R. 1113) to do our best in this regard. We have regard to the words of Woodhouse J., at p. 1124, in which he says, after discussing section 11:
"For these reasons, in order to ascertain the standard against which any true assessment can be made of some given material, I think it must be relevant to look to see what is currently acceptable in the community and what other material in the form of literature or otherwise is already freely circulating or available."
and, again, on the same page:
"All these statutory considerations presuppose, in my opinion, that the Tribunal will have available to it a suitable mirror of contemporary standards and affairs, and will evaluate these matters themselves and also the overall issues before it with a balanced and proper understanding, of those contemporary standards."
As members of the community, we are conditioned by is standards and would not find it possible, if we wished, to disregard them; yet we should state clearly our conclusion that the statute itself modifies the view that if a document is simply "highly indelicate" or "immodest" by current standards, it is therefore indecent within the meaning of the Act.
This is indicated by the fact that subsection (2) of section 11 provides that, notwithstanding the considerations the Tribunal is required to take in to account under subsection (1) of the section, where the publication of any book or the distribution of any sound recording would be its the interests of art, literature, science, or learning, and would be for the public good, it shall not be classified as indecent. In addition to the task of classifying books and sound recordings imposed upon the Tribunal by section 10 (b), the duty is also cast upon it, in the case of books and sound recordings coming under subsection (2), of also deciding, first, if they would be in the interests of art, literature, science, or learning, and, secondly, if they would be for the public good. These are considerations overriding those set out in subsection (1) and go far beyond requiring the Tribunal to consider such material merely in terms of whether it is "highly indelicate" or "immodest". The definition of "indecent" in section 2 also requires the Tribunal, in carrying out its classifying functions under section 10 (b), to go beyond the ordinary dictionary meaning of the word.
If it is suggested that, judged by the yardstick of community standards, a document is highly indelicate or immodest and should therefore be held to be indecent in terms of the Act, we are unable to accept this narrow interpretation. To do so would be to ignore the provisions of subsection (2) of section 11 and the extended meaning of the word "indecent" in section 2, which, in our view, show that it was not the intention of the Act that anything which is no more than highly indelicate or immodest should be held to he indecent.
This Act proceeds upon a basis different from that of earlier Acts governing indecency in literature and, by section 3, it sets up a Tribunal of five members.
By section 10 it entrusts to this Tribunal the function of determining the character of any book or sound recording submitted to it for classification. This task is to be undertaken in the light of subsection (1) of section 11, which sets out six criteria to be held in mind, and of subsection (2) of section 11, the effect of which has been mentioned above.
In our view the committing of this determination to a Tribunal, together with the requirement in subsection (2) (b) of section 3 that at least two members shall have special qualifications in the field of literature or education, makes it clear that the Tribunal is required to arrive at its judgment partly by subjective processes, or at the least is not precluded, in arriving at its judgment, from having recourse to its own views on the matter. The words of Woodhouse J., quoted above, reinforce this view. In simple words, we assert that the Tribunal may say: "As members of the community chosen to make the decision, we think it is not fitting that this book should circulate through the community"; we do not have to substitute such a formula as: "Whatever our views, we think on balance that more people would think this book indecent in terms of the Act than would not". That the statute so specifically directs our attention to overriding considerations of public interest and aesthetic value enormously strengthens this view.
The standards which at present appear to be acceptable to the community are, of course, constantly changing. We are aware also that these vary from group to group within the community.
We do not think the public interest requires suppression merely on the grounds of unorthodoxy, either in argument or in presentation, and we do not think that the community desires it.
We are aware of the present tendency towards the acceptance of more liberal standards and we are also aware of the dangers of too rapid change. It is our view that the Act as well as the community requires us to keep a balance between necessary protection and individual liberty.
With these considerations in mind we proceed to classify the documents before us.
All those in the first group we declare to be not indecent: they come within the first category.
All those in the second group are within the second category, and we declare them to be indecent in the hands of persons under 18 years of age.
The books in the third group we place in the third category, and these we declare to be indecent within the meaning of the Act.
We now discharge the interim order prohibiting publication of the names of parties or titles of publications.
L. G. H. SINCLAIR, Chairman.
15 July 1968.
A landmark decision for naturists.
In short: the Indecent Publications Tribunal determined that since the word decent is derived from 'what is fitting': "indecent means by derivation what is not fitting". Thus the content of genuine magazines such as the NZ Naturist are to be regared as 'unexceptionable'.
Key points are highlight below.
Not specified in the ruling, but reported later by Perc, was his discovery during the hearing that in New Zealand, there had never been any prior statuary block to uncontrived depiction of genitalia in print...