18 May 2002 7 a.m.
High Court Action: Minister of Internal Affairs the focus
A judicial review of the perceived failure of the Minister of Internal Affairs, Hon George Hawkins (the respondent), to
recommend the appointment of a Deputy Chief Censor of Film and Literature (DCC) under s. 80(1) of the Films, Videos and
Publications Classification Act 1993 (“the Act”), is scheduled to come before the High Court in Wellington at 10 am on
Monday 20 May 2002.
The Society for Promotion of Community Standards (SPCS), the applicant, is seeking to determine the legality of the
Minister’s decision on May 9 2001 to end the recruitment and appointment process for the vacant position of DCC, a
process commenced in May 2000. The decision to end the process was “confirmed” by Cabinet in its meeting of 14 May 2001
[Ref. 1].
Papers were filed in the High Court on 28 March 2002 by Mr John Bryson, solicitor acting for SPCS and served on the
Minister on 2 April 2002. Barrister Dr George Barton QC is counsel to the Society.
After the proceeding was issued, the respondent notified the applicant that it was intended to retain the position of
DCC and that the position would be advertised in early May 2002 with the intention of making an appointment by 31 July
2002. A press release to that effect was released by the respondent on 18 April 2002.
An advertisement was published in the Dominion newspaper on 8 May 2002. It records that applications close on 22 May
2002 and the Department of Internal Affairs is administering the appointment process.
Given the respondent’s action, counsel have agreed that the applicant does not require the respondent to file a
statement of defence at this stage. Counsel has purposed that the proceeding be adjourned for a period of three months
to enable the appointment process to be monitored and to ensure that it proceeds to a proper conclusion.
The applicant has put the respondent on notice that regardless of the outcome of the appointment process, the applicant
will be seeking costs. That particular matter may require argument at some stage but counsel have respectfully suggested
that at this point costs can simply be reserved.
Given the public nature of this proceeding, the applicant has requested that the matter be called in open Court to
enable the proceeding to be formally adjourned. The applicant has required that the respondent confirm in open Court
that the appointment process has been properly instituted.
The Honourable Justice Hammond has set the case down for Monday 20 May. Appearances of counsel for both parties have
been required.
Hon. George Hawkins is the Minister responsible for determining policy and exercising relevant statutory powers and
functions in relation to the Office of Film and Literature Classification (OFLC). This Office, set up under the Films,
Videos and Publications Classification Act 1993 (“the Act”), is a Crown entity and is currently headed by Chief Censor,
Mr Bill Hastings. Both the positions of Chief Censor and DCC within the two-person executive of the office are statutory
appointments made by the Governor-General on the recommendation of the Minister, in consultation with the Ministers of
Justice and Womens Affairs. The position of DCC has been vacant since October 1999 and the OFLC executive has consisted
of only one person (rather than the two as required by law) since October 1998. Section 85(2) of the Act states:
“The Chief Censor and Deputy Chief Censor shall be responsible for the exercise of the functions and powers of the
Classification Office under this Act.”
The DCC is the only person in the OFLC (currently with staff of about 30) who is not appointed by the Chief Censor.
In answer to "questions for written answer" (due for 4 March 2002), put to the Minister by Mr Stephen Franks MP,
concerning the reasons for the non-appointment of a DCC, Hon. George Hawkins answered:
"At its 9 May 2001 meeting, the Cabinet Appointments and Honours Committee [APH] noted that I was ending the appointment
process to fill the position of Deputy Chief Censor of Film and Literature. A process to fill the vacancy ... was
formally initiated in May 2000…. I am responsible for the administration of the appointment sections of the Act". [Ref.
2].
In a letter dated 31 January 2002 the executive committee of the Society (SPCS) put the same question to the Minister,
to which he replied:
"The appointment process for a Deputy Chief Censor was ended due to concerns at the amount of time taken to fill the
vacancy and because it was agreed that there was merit in considering the extent to which the position contributes to
the effective operation of the Office under the [FVPC] Act. Ministers made these decisions at a meeting of APH on 9 May
2001." [Ref. 3]
SPCS secretary and spokesperson, David Lane, says “the Minister’s answer is reminiscent of the evasion and gobbledygook
so characteristic of Prime Minister Jim Hacker, aided and abetted by his PA Humphrey, in the television programme Yes
Minister. Mr Hawkins, aided and abetted by Cabinet, has chosen to abrogate his statutory duty. However, he and his
Cabinet colleagues are not above the law as we have pointed out publicly.” [Ref. 4] (The Cabinet confirmed the decision
of the APH Committee on 14 May 2001).
There were 70 applicants for the DCC position to which Bill Hastings was appointed in December 1998 [Ref. 5]. Mr Lane
says “Suspending the law, using the lame excuse of a pending review of the law to do so, is against the law, as clearly
established in the High Court case Fitzgerald v Muldoon [1975].”
“The Office of the Controller and Auditor-General investigated our complaint against the Minister” said Mr Lane [Ref. 6]
“and advised us that it had no authority to intervene on the matters raised under the Public Audit Act 2001 [Ref. 7]. It
took the view: ‘It is not for us to advise on legal issues or resolve matters of statutory interpretation. In our view,
the courts would more appropriately address the further issues you have raised’ [Ref. 8] A judicial review to determine
the legal position is thus the only option open to the Society to resolve the matter, as Mr Hawkins still argues that he
is not duty-bound under section 79 (1) of the FVPC Act to ensure that the recruitment and appointment process for a DCC
is completed. SPCS argues that he is, and that the Cabinet has been derelict in its duties in bringing to an end the
recruitment and appointment process, and in the meantime looking at the option of doing away with the statutory position
altogether.”
References.
Ref. 1 (Cab Min (01) 15/2).
Ref 2. Questions (001082, 001085, 001087) for written answer due for 4 March 2002
Ref. 3 Letter dated 27 Feb 2002. In response to SPCS OIR dated 31 Jan 2002.
Ref. 4. Letter, The Evening Post 1 February 2002.
Ref. 5. Dominion 30 October 1999, p. 18. "He sees what we won't" by Val Aldridge (Saturday People).
Ref. 6. See The Dominion, 19 Jan, p. 2.
Ref. 7. Letter of 28 January 2002. Signed Andrew McConnell, Sector Manager.
Ref. 8. Letter of 13 February 2002. Signed Terry McLaughlan Assistant Auditor-General.