Chapter 3

Following upon the presentation of the Mazengarb report the Government immediately took steps to give effect to those recommendations which called for special legislation. Three Bills were introduced, the first dealing with "indecent publications", the second dealing with child welfare, and the third with police offences.

In our order of reference we were directed to study these pieces of legislation and to report as to their efficacy and as to whether there were any specific amendments that were necessary or desirable.

In the preparation of this part of our report we have had the advice and much valued assistance of the Department of Justice. We deal here with the question of "publications". Our comments as to the Child Welfare Act appear elsewhere in this report. No comment is needed regarding the amendment to the Police Offences Act. First as to _publications of a more or less objectionable character circulating in New Zealand_.

We set out at some length some portions of the report submitted for our consideration by the Minister of Justice, the Hon. Mr Marshall. _Inter alia_, it is said:

I. _Objectionable Publications in General_

"Our survey of the book trade disclosed that there were three types of publication to which particular attention should be given--comics, certain crime stories, and nudist and other suggestive magazines.

(_a_) _Comics_: "These are the publications which have attracted most public attention, both here and overseas, and in particular the type of comic known as the 'crime' or 'horror' comic has come in for a great deal of severe criticism. It is true that reading of a mildly bloodthirsty nature directed at the juvenile market is no new thing. The comic books of today, however, are not those of a generation ago, nor are they at all similar to the comic strips now appearing in the newspapers. Many of them are full of matter which is brutal, horrifying, and sadistic, and although to a certain extent they are published for and read by adults of feeble mentality they are also available to children.

"The origin of this type of comic is the United States, but other countries have not been slow to follow suit. Large numbers of comics are reprinted in England and Australia from American plates. The interim report of the Kefauver Committee strongly indicts crime and horror comics and gives some revolting illustrations of their contents. Reports indicate that comics almost as bad were circulating in England before the introduction of legislation there. The nature of crime comics circulating in Canada was responsible for an Act passed there in 1949 prohibiting such comics.

"Even before the passing of last year's Act none of the comics on sale in New Zealand was as bad as the worst American or English examples. At the same time some of them were most objectionable. Since action has been taken here and in Australia the standard of comics distributed in New Zealand appears to have improved considerably. That is not to say that they are all free from objection, and there are a number of crime comics which we do not think should be allowed to go on circulating. Indeed, we think that this country can well do without the crime comic altogether. Recently objection was taken to some forty comics, and we are waiting advice from the distributors as to their attitude. Later in this report we shall refer to further proposals for dealing with comics.

(_b_) _Crime Stories_: "The second class of publications referred to comprises publications usually known as 'thrillers'. These books are quite different from the ordinary detective novel and from the more traditional type of thriller. Many examples of this new type of gangster thriller have been flooding the New Zealand market in the form of paper-backs selling at 2s. 6d. or less. They are entirely devoid of literary or other merit and are devoted to the wanton depiction in gross detail of brutality, violence, and sex.

"These publications and a number of so-called detective magazines which imitate them may perhaps be regarded as the adolescent equivalent of the crime comic, and we believe them to be equally harmful. Action against them will, we think, no more infringe the principle of freedom of speech than action against narcotics infringes the principle of free enterprise in the economic sphere.

"Action against these publications was taken some time ago, and some of the results of this action have appeared from recent reports in the press. As an illustration of what has been done we advised the Associated Booksellers that you considered all the novels of Mickey Spillane to be indecent and that you were prepared to prosecute in respect of them. The booksellers agreed with this opinion and recommended their members not to stock these books. We think it significant that these books, which were agreed to be objectionable, were being sold by many reputable booksellers in New Zealand. This shows how easy it is to offend unwittingly against the Act.

"There was a group of even more objectionable publications published in paper-back form by an English firm, Milestone Ltd. We advised the police some time ago that we intended to take proceedings against any one found selling these books. The Booksellers' Association agreed with this view.

"There is an enormous output of books and paper-backs of the detection-thriller type, and it is by no means easy to know where to draw the line. It should be possible, however, to eliminate the really harmful and leave the rest.

(_c_) _The Suggestive Magazine_: "The third class of publications is the suggestive magazine. Some public concern has been expressed that a number of suggestive magazines are continuing to circulate in this country. The truth is, however, that, although the names are the same, the contents are very different. We have carefully examined all these magazines, and, although they are not perhaps very edifying, we are satisfied that at present none of them clearly infringes the law.

"Nudist magazines are another matter. Those we have seen appear unobjectionable if their circulation is restricted to nudists and persons interested in the nudist cult. They have, however, been appearing in some newsagents' and tobacconists' shops and openly displayed in windows, and we consider circulation in this form to be undesirable. Serious consideration is being given to the prosecution of any one who displays these magazines or sells them to the general public."

II. _Suggested Amendments to the Law Relating to Indecent Publications._

The Justice Department has given much attention to the question as to the efficacy of the amending Act introduced in 1954. We had the advantage of reading the report presented by the Department to the Minister of Justice, and we set out below certain portions of the report which we as a Committee think worthy of notice. The report says, _inter alia_:

"(1) We think that the substantive changes made in the special legislation in 1954 have been beneficial, and we strongly recommend that they be retained. The Indecent Publications Act 1910, as it previously stood, dealt with sex and with sex alone, and this is not sufficient. It is, for instance, doubtful if the Spillane novels or some of the books in the Milestone series could successfully be objected to merely on grounds of sex; but they are, nevertheless, of an immoral and mischievous tendency and should not be allowed to continue in circulation. They might be described as 'sadistic' in the true psychological sense in that they combine sex and violence.

"There has been some suggestion that the Act leaves too vague just what is indecent and that the word 'indecent' should be defined with precision. In the nature of things there are, however, very great difficulties in attempting such a definition. It is significant that no precise definition of indecency exists either in the principal Act or so far as we are aware in the legislation of any other Commonwealth country.

"The present state of affairs might be dangerous if prosecutions could be taken on the decision of police officials in any town in New Zealand. Whatever may be said in theory, however, the fact that prosecutions can be brought only with the leave of the Attorney-General is, we think, a sufficient guarantee that the law will be applied uniformly and reasonably. Moreover, there is a further safeguard in the right of appeal to the Supreme Court against all decisions of a Magistrate under the Act.

"We believe that the bookselling trade is quite happy with the present substantive law as it is now being administered, and we firmly hold the opinion that the best course is to leave the substantive provisions of the 1954 Act largely as they are.

"(2) The registration provisions are a rather complex way of achieving their object, which is to enable the Court to put a seller out of business if he is convicted of an offence against the Act and if the Court believes his conduct is such as to warrant this penalty. We think that this object could be achieved by giving the Court this power directly. It could be provided that on convicting any one under the Act the Court may make an order prohibiting him for a certain period from carrying on the business of selling books or periodicals. The provisions as to registration could then be repealed."

Some members of the present Committee felt that this power should be exercised only in the case of a second or subsequent conviction.

"(3) The marking requirements of the Act are not well adapted to their object, and, as we have mentioned, it has proved necessary to a large extent to dispense with compliance with them. We think it is anomalous that the law should continue to require marking while almost every publication is exempted.

"In place of the present marking provisions we suggest that every New Zealand publisher should continue to be required to print his name and address on what he publishes, that the importer of overseas periodicals for sale or distribution be required to supply to the Department of Justice a list of the titles imported by him, and that every one other than a retail bookseller who carries on the business of importing books be required to supply to that Department a list of the publishers whose books he imports.

"(4) There is one anomaly in section 5 (1) (_d_) of the principal Act as set out in the 1954 Act. This is the provision which requires the Magistrate to take account of the persons, classes, or age groups to whom a document is sold or is intended or likely to be sold _and the tendency of the document to deprave or corrupt such persons_. The words in italics are appropriate in the Victorian statute from which they were copied because the common-law test of depraving or corrupting applies in Victoria, but they are at best unnecessary in New Zealand where the Act lays down its own test--namely, that the act of the defendant must be of an 'immoral or mischievous tendency'.

"(5) The 1954 Amendment contains some ambiguities and anomalies in matters of detail which should be remedied when any further legislation is brought down. These defects were discussed in an article by Professor I. D. Campbell in the 1955 _New Zealand Law Journal_, page 294.

"_New Provisions Suggested_: (1) As we have said, we are not anxious that the ordinary law-abiding bookseller or distributor should have to undergo the stigma of a criminal prosecution, and this was the main reason for entering into arrangements with the Associated Booksellers and Gordon and Gotch. At present, however, criminal proceedings afford the only real way of testing the position even where there is an honest difference of opinion. We think a better procedure could be devised, and the Select Committee may be invited to deal with this matter.

"(2) A number of comics which are not strictly indecent within the meaning of the Act are nevertheless objectionable from other points of view. In many the ethical standards of the characters are low. The quality of the print and illustrations varies from the indifferent to the very poor, and must have a serious effect on children's eyesight. In a number of comics the grammar and vocabulary are likewise bad.

"It is said that children learn from what they see and hear around them. If this is so it would appear that the assiduous reading of comics tends to counteract the work of teachers which costs the country so much.

"An Inter-departmental Committee in 1952 recommended the introduction of a system of registration. The Committee's original recommendations were: that publishers or importers of comics should apply for registration of every title and that only suitable titles should be registered. The sale of unregistered comics was to be an offence. This procedure may be preferable to the subsequently suggested system of automatic registration followed by de-registration upon complaint.

"Registration of comics, of course, amounts to censorship. There is, however, no question of literary merit or the spread of knowledge, and the view that an adult should in general be free to read what he likes does not apply in the case of publications primarily intended for children. If it is accepted as proper to censor films there can be little objection to censoring comics.

"We therefore suggest that the Select Committee might consider whether an authority might be set up to approve and register comics. There could be an Appeal Board similar to that in respect of films to consider complaints against any decision of the registering authority.

"If this suggestion is unacceptable an alternative might be an amendment to the legislation to be introduced enabling the Court in the case of comics to take into account as one of the factors in considering whether they are objectionable matters of grammar, language and visual standards."

The present Committee is of opinion that there is a good deal of force in the suggestions put forward in this part of the report of the Department of Justice, and our view is that these suggestions should be referred to the Minister of Education with a request that he consider them favourably and forward his conclusions to the Government.

"(3) We have come across cases in which publications have been advertised to such persons and in such a way as to endeavour to sell them or attract the public on the basis of their emphasis or alleged emphasis on sex, horror or violence.

"If a publication--for instance, a medical book--is displayed in a shop window open at a page of illustrations this would probably be an offence against the present law even though the book may itself be unobjectionable. There is however, another type of case which would not be caught by the law as it stands, but which we think equally deserves to be prohibited. An example of what we have in mind is an advertisement which is put out by a mail-order firm and is obviously designed to 'sell the book on its sex.' This open appeal to salacious instincts is most objectionable and we can see no justification for allowing it. Whether or not the publication itself is indecent, we think the type of advertisement we refer to should be prohibited by law.

"_Amendments of Principal Act_: Prior to 1954 the Indecent Publications Act 1910 had stood without alteration for over forty years, and although its main principles are still sound revision is badly needed. Indeed, last year's amendment in certain respects increased rather than decreased the difficulties. In our opinion, the best solution is to reconsider the legislation as a whole and to deal with the topic of objectionable publications in a new and self-contained Act. This would, of course, take some time. We have notes of many points to raise with the draftsman, but we cite others of more general significance.

"(1) We consider that parts of the present section 6 are obsolete and should be repealed. Section 6 enumerates certain classes of works which are _prima facie_ indecent. Among these are 'any document or matter which relates or refers, or may reasonably be supposed to relate or refer, to any disease affecting the generative organs of either sex, or to any complaint or infirmity arising from or relating to sexual intercourse, or to the prevention or removal of irregularities in menstruation'.

"In so far as this part of the section would prevent the advertising of useless or harmful products, it is unnecessary in view of the Medical Advertisements Act 1942. In so far as it represents a general attitude it seems out of date now that the matters referred to are discussed with far less reticence than when the Act was passed. The reference to drugs or methods for procuring abortion or miscarriage in the later part of the section might be retained, but it belongs more properly in the Crimes Act or the Police Offences Act.

"(2) At present section 157 of the Crimes Act overlaps the provisions of the Indecent Publications Act 1910, and the tests it lays down are expressed in very different language. This section is little used, but it seems undesirable that there should be two different tests for what is really the same offence. We recommend the repeal of section 157 in so far as its subject matter overlaps the Indecent Publications Act 1910.

"(3) If the legislation is rewritten, we suggest that consideration be given to the incorporation in the Act of the 'dominant effect' test laid down in an American case, the Ulysses case.

"The consolidation and rewriting of the existing legislation would be of real benefit. The nature of the topic, however, demands that any general consolidation should receive careful and even cautious consideration. We do not think that in this matter urgent or speedy action is called for."

The Committee has examined all of these suggestions and recommends that they should receive the very favourable consideration of the Government.

Summary of Principal Conclusions and Recommendations

I. That the changes in the law which were regarded by the Mazengarb Committee as calling for immediate action were duly and promptly brought into being by the Government by and through its 1954 amendments to the Indecent Publications Act 1910, the Child Welfare Act 1925, and the Police Offences Act 1927.

II. That the changes made last year in the Indecent Publications Act 1910 have been to some extent effective and helpful. We recommend, however, that consideration be given by Government to the redrafting of the Indecent Publications Act 1910 and to the inclusion in any new draft of the amendments suggested by the Department of Justice.

III. That it is clear that the suggestions made by the Mazengarb Committee for administrative action by certain named Government Departments along the lines indicated by that Committee have been sympathetically studied by the several Departments and that satisfactory measures have been taken by such Departments to carry out the recommendations of that Committee.

IV. That in the opinion of the present Committee the Child Welfare Division should not be reconstituted as a separate and independent Department of State, but that it should remain, as at present, a Branch or Division of the Department of Education.

V. That Government should take effective steps to set up a broadly based committee composed of men and/or women of expert knowledge and possessed of specialized training and wide experience to act as a fact-finding body so that as far as possible a reliable diagnosis may be obtained of the extent, causes, and incidence of the problem of delinquency in this Dominion. We think that this must be done before any thorough-going solutions can be propounded for consideration by Government.

VI. That the suggestions made by the Department of Justice with respect to "comics" in general and "crime comics" in particular and also with regard to "suggestive" magazines and periodicals appeal very strongly to the members of the present Committee, and we accordingly recommend that the Government should take action along the lines proposed by the Justice Department.

VII. That every effort be made through the Parent-Teacher and Home and School Associations to reach the greatest possible number of parents and prospective parents in order that they might be given the type of assistance referred to in greater detail in the body of this report.

VIII. That, for the better attainment of the object set out in the preceding paragraph, it is recommended that the Director of Education be asked to confer with appropriate experts with a view to the provision of suitable courses of lectures for parents and prospective parents.

That with the same end in view steps should be taken to increase the numbers of our visiting teachers, school psychologists, and public health nurses.

IX. That the Director of the National Broadcasting Service be supported in the course he proposes to follow to put into effect the suggestions made by him in this report. We also stress our view that during the hours set apart for listening by children there should be a complete absence of features that can fairly be regarded as being unsuitable for or injurious to young children.

X. That on the question of contraceptives the Committee has but one recommendation to make--namely, that the Government should seriously consider whether it could be made a criminal offence for any one but a chemist acting in the ordinary course of his business to sell such articles to any member of the general public.

R. M. ALGIE, Chairman.

BY AUTHORITY: R. E. OWEN, GOVERNMENT PRINTER WELLINGTON, NEW ZEALAND.--1955

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