Amendment No. 1 is consequential on amendment No. 4 and both may be discussed together.
Censorship of Films (Amendment) Bill, 1992: Committee and Final Stages.
SECTION 1.
I move amendment No. 1:
In page 2, lines 15 and 16, to delete the definition of "the Appeals Board" and substitute the following:
"‘the Appeals Board' means the High Court".
This is a technical amendment. It was put down because of our concern that the provision for an Appeal Board may be unconstitutional. I understand there may be some constitutional difficulties in relation to the way this is structured. There was a case in the seventies which would suggest that this may be so. For those reasons, I move this amendment.
I can put Senator Upton's concerns to rest in relation to the constitutional aspect.
Senator Costello expressed concern that the provisions of the censorship of Films Act, 1923 and the Video Recordings Act, 1989 which provided that a person who was dissatisfied with a decision of the censor may appeal the decision to the Censorship of Films Appeals Board and that this may be at odds with Article 34 of the Constitution. I am satisfied the Senator need have no concern in that regard. The legitimacy of bodies such as the Film Appeals Board is well established. Where such bodies are concerned with administrative determination there can be no conflict with the provisions of Article 34 of the Constitution. Article 37 of the Constitution allows for the exercise of limited judicial powers and functions by such bodies.
Article 37 states:
Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.
Whether the power being exercised by the Censorship of Films Appeal Board is administrative or is of a limited judicial nature might be arguable but it is not unconstitutional. There is no necessity, therefore, for the amendment proposed by Senators Upton, Costello, Harte and Ryan.
In any event, at a practical level, it would be entirely inappropriate that the High Court should become involved in the type of function performed by the Censorship of Films Appeal Board. That would be ludicrous. When the provisions of the Video Recordings Act, 1989 are fully operational, up to 1,000 new video releases a year will be submitted to the censor and 15,000 videos already on the market will need to be classified. If a small fraction of the decisions made by the censor on those videos result in appeals it will represent a significant volume of work and this is at a stage when we are already under pressure to increase the number of judges because of delays in hearing cases in the High Court given the volume of business already.
Amendment, by leave, withdrawn.
Section 1 agreed to.
SECTION 2.
I move amendment No. 2:
In page 2, subsection (1) (a), line 25, after "may" to insert "after consultaion with representatives of the film industry, film societies and film views associations".
This amendment seeks to provide that the Minister should consult with representatives of the film industry, film societies and film views associations when he is appointing assistant film censors. That is desirable. It is important that there would be consultation with these groups. There has been a great deal of concern over the years about the manner in which film censorship and censorship generally has been conducted. Some of the film societies, film views associations and the film industry have been among the more progressive elements in Irish society. They would have a valuable contribution to make in relation to the appointment of film censors and it would be worthwhile if the Minister were prepared to consult them and if that were written into the Bill.
I dislike being negative but I cannot accept this amendment because it would introduce a very unwieldy element into the process of appointing assistant censors. I can see no justification for it. The task of the official censor and of the proposed assistant censors is to examine films and videos in an objective manner in the light of the criteria laid down in the relevant legislation. The official censor is appointed by the Minister under section 2 (1) of the Censorship of Films Act, 1923. There is no provision for consultation with the film industry of associations with film interests. The House would agree that those appointed to the office have performed their duties in an exemplary manner.
The system of appointing persons to the office of official censor and to the Censorship of Films Appeal Board has worked very well up to now and, consequently, I do not see the need for change.
Persons who hire or buy video recordings come from all walks of life and it would be my intention that the persons to be appointed as assistant censors would be practical people with a commonsense attitude who would be unbiased and able to perform their task objectively. I do not see that consultation with the film industry or with film views associations will assist me in this regard. It would be fair to say that such groups might find it difficult to be objective in such matters.
The film industry and those associated with it have been satisfied with the approach taken by the various persons who have filled the post of official censor down through the years. I am not aware of any demands by them for a change in the system. I remind Senators that under the provisions of the Bill the assistant censors who will be appointed will work under the general supervision of the official censor and he will be responsible for establishing and maintaining the standards under which they will operate.
This amendment will introduce delays, prevarications and disputes into the system. If the Minister has to consult representatives of the film industry, there will be disputes among them as to who will be consulted, the film societies and film views associations. As the amendment is drafted, the Minister can consult whoever he wishes among those associations and naturally that is going to lead to resentment and people will say if they had been consulted they would have told the Minister something different.
We must also look at the meaning of the word "consultation". Consultation is a very useful process but it is usually engaged in by people who want to find out something or who wish to get the views of other people. If we write into legislation an obligation to consult without any obligation to take the recommendations of those consulted into account, it is unnecessary bureaucracy and will cause unnecessary delays.
I believe legislation should be up to date and that the law should reflect reality not what some people would like it to be or think they would like it to be. It should reflect real life. I am making no particular criticism of Senator Upton when I say this but I am opposed to what I call nuisance legislation, that is, legislation which is introduced to solve a problem which does not exist. If there is a no problem, there is no need for the legislation because there is nothing to solve. That may create other problems later. If lessons are to be learned from recent events, that is one lesson that is patently obvious.
In 1983 we did not have a problem in relation to abortion but we amended the legislation and now we have a problem. We introduce legislation and sometimes constitutional amendments to solve problems we do not have and the result is that we create problems for ourselves.
There is a degree of truth in what the Minister has said. To take an analogy from the medical world, even the most useful and appropriate drugs tend to have side effects from time to time but that is not normally put forward as a reason for not using them when they are properly prescribed.
I am surprised at the Minister's attitude to consultations. I agree that they cause delays; sometimes they cause disputes and a certain degree of aggravation but they also have a pleasant side. They involve people; they may enlighten people and help to point the way forward. I thought we had gone through a few days of national consultation and consensus where most of the major parties and all the Leaders got together for a chat. This wonderful era — admittedly it was a short era — was very pleasant while it lasted.
And the results were good.
And nowhere better than in County Clare.
Three to one.
As regards the Minister's remarks about these people being objective, perhaps they are but are we all not prisoners of our past, an embodiment of our biases and so on? I would be concerned at the idea of anybody involved in the arts being objective. One person's pornography is another person's art. I think there is a lot to be said for having wide consultations. Indeed, if there is a criticism to be made of this amendment it is that it is not framed wider to extend the levels of consultation.
We have a fairly unpleasant history in relation to censorship. As we look back on that history, most of us would agree that much of it was stupid and idiotic and should never have happened. At one stage, one of the definitions of our better artists and writers was their works that were banned here. I believe that if the groups mentioned in this amendment were consulted, it would help. I cannot see any problem with it. I accept what the Minister says about delays and so on.
The Minister did not rule out consultation. He said there was nothing in the section which precluded him from having consultation with any of the bodies or individuals mentioned in the amendment if he wishes.
Amendment, by leave, withdrawn.
I move amendment No. 3:
In page 3, subsection (4), line 17, to delete "remuneration" and substitute "salary".
I introduced this amendment because I have been concerned about a development in private industry and business for some time where employers contract themselves out of their legal obligations to their employees by calling them contractors and paying them a contract or a piece rate. This practice began to develop after the introduction of the 1977 Acts which were designed to protect employees and to give them a proprietory right to their jobs, which is only just and fair.
Employers can get out of their legal obligations by employing people as contractors and either paying them piece rates, day rates or whatever and they are not responsible for PRSI or PAYE. In the Bill, we are introducing this system into the State sector. We will pay people on contract to look at videos or films and evaluate them.
The Minister stated this morning that on average about 1,000 videos will be viewed each year. Under those circumstances, I do not see why permanent assistant censors cannot be appointed, paid a salary and become part of the public service rather than employing people on a contract basis. How does the Minister propose to remunerate the people who will act as assistant censors?
The explanatory memorandum states that panels of assistant censors will be appointed on a part-time, temporary and non-pensionable basis. They will be paid on a fee per hour per video work examined basis. I do not see why the word "salary" should be there instead of "remuneration".
That is the point I am making. If they are salaried they are part of the public service and they will have the other rights of a full-time employee in the public service. As proposed here, they will be part-time and temporary. They will not have any pension rights and they will not have a career in the public service. They will be working for the public service on contract basis.
They could be politicians and do some film censoring after a busy day in the House.
I may be open to correction on this, but even if we substituted the word "salary" for "remuneration" it still would not necessarily make them part of the public service. I understand there are people working in the public sector who are on salary and still not part of the Civil Service, and subject to the normal conditions, pension rights, right to security of employment and so on in the public service, in the ordinary sense of the word.
Senator Neville made a reasonable point about people contracting out of their obligations. I can assure him that the reason the term "remuneration" rather than "salary" is used here is not to aid, abet or create situations where people can contract out of their obligations. The term "remuneration" was specifically included in section 2 (4) of the Bill in preference to the term "salary" in order to provide the widest possible scope in terms of the manner in which assistant censors might be employed.
There are a number of factors involved in the video industry and in the examination of videos which indicate that assistant censors should not be appointed on a full-time permanent basis. For example, the video business is subject to peaks and valleys which means that more videos will need to be examined at certain times of the year than at others. Also, during the first years of operation, the existing backlog of videos on the market will have to be examined and this will require extra assistant censors who need not be kept on when the backlog has been cleared. In addition, experience elsewhere indicates that persons employed in the censorship of videos maintain consistently better standards of judgement if they are used for short periods and given long breaks. I think Senator Neville will appreciate that point.
Scope should be allowed, therefore, for the employment of assistant censors on a varied basis as circumstances dictate, for example, a contract basis for a definite period of time or on a whole-time or part-time basis as the need arises, or a blend of both systems. In the case of part-time employment, fees might be a more appropriate method of payment than salary. Indeed, it might also be that a fee per film examined might be an appropriate basis for payment. It will not be possible to determine all these issues until the examination of videos gets underway and we learn from experience what is the best method of approach.
It is necessary, therefore, to keep the term "remuneration" in the section rather than salary as it is a much wider term and will allow the method of paying the assistant censors to be tailored to the manner in which they are employed. In other words, we are not ruling out the possibility that some assistant censors may be on salary. That may be the decision of the Minister. Some people may be on a part-time basis, some people may be on a fee basis or on a contract basis. The system will have to be up and running to determine the exact method of payment for the different assistant censors or, if the Minister decides, different categories of assistant censor. If the Minister decides to keep people on a semi-permanent basis perhaps they will be salaried but the reason the term "remuneration" is used is to allow for the widest possible flexibility. Experience will teach us the best method of employing them and from that we will decide how to pay them. That is why we have deliberately maintained flexibility.
I accept what the Minister says but I wanted to highlight my concern at what is happening with regard to employers contracting out of their obligations under the 1977 Act and the various industrial relations Acts. I would be afraid that the State would condone that. The State should legislate to ensure that it does not happen.
Amendment, by leave, withdrawn.
Section 2 agreed to.
NEW SECTION.
Amendment No. 4 not moved.
Section 3 agreed to.
NEW SECTION.
I move amendment No. 5:
In page 3, before section 4, to insert a new section as follows:
"4.—In section 7 (2) of the Act of 1923, the words ‘indecent, obscene or blasphemous or because the exhibition thereof in public would tend to inculcate principles contrary to public morality or would be otherwise subversive of public morality' are hereby repealed and ‘grossly degrading as regards the portrayal of women' substituted therefor.".
The basic reason for tabling this amendment is concern that the wide scope of the definitions which are used here — indecent, obscene and blasphemous. None of us would be in favour of what would be indecent, obscene and blasphemous but the difficulty is the concepts of these motions will vary in each individual. As I have said already, one person's idea of art is another person's idea of obscenity and indecency.
I would be concerned about matters which would "be otherwise subversive of public morality". What does that mean? Does it cover, for example, the capacity to make films on issues such as divorce, contraception, homosexuality and so on. We have a history of anomalies in these matters. I understand that a film called "Whore" by Ken Russell was banned in this country but a play based on the film "Bondage" is now being performed at the Project. Such anomalies still exist. I would like to see the definition tightened up considerably and made more explicit. We have suggested one definition. I do not pretend for a minute that it is the only definition but we have simply put it forward as an item for discussion.
I take the Senator's point about public morality. Whenever the Government of the day bring forward legislation in the social area the standard argument against it is that it is contrary to public morality, as if public morality were some sort of a chemical element — I know the Senator is interested in science — that could be analysed in the laboratory and one could say exactly what it comprises. Public morality is a notoriously elusive concept.
Reading Senator Upton's amendment, I note that he confines it to what is grossly degrading as regard the portrayal of women. I am all for equal rights for women but I am not going to elevate them to a higher status than the rest of us mere mortal men. The proposed amendment would narrow the basis on which a film could be refused a certificate by the censor allowing its public exhibition to one issue, that is, that it contained material grossly degrading as regards the portrayal of women. It would not permit decisions to be made on matters which would be grossly degrading as regards the portrayal of children or men. It would not permit decisions to be made on films which depict acts of gross violence towards children, men and animals or which would be likely to stir up hatred against groups or persons in the State on account of their race, colour, nationality, sexual orientation, etc. The existing provision permits decisions to be taken in relation to those matters.
I am aware that Senator Costello in his contribution on Second Stage criticised the wording in section 7 (2) of the 1923 Act on the basis that it was too wide and left too much discretion to the censor. Whether one would agree with his views in this regard largely depends on one's own views on the legitimacy of censorship per se. Senator Costello would argue for no censorship or, at most, very limited or restricted censorship and his views on the wording of section 7 (2) are understandably coloured by this attitude. However, we live in a democracy, as was recently demonstrated, and the vast majority of the population do not I believe share this view.
Most people do not wish to see grossly offensive, violent or indecent films on public view. They are happy to have films vetted by the official censor by reference to the criteria set out in section 7 (2) of the 1923 Act. I accept that those criteria are broad in definition but this is unavoidable. What constitutes the norms of public decency or public morality are extremely difficult to define in exact legal terms and obviously change from time to time. The factual position is, however, that over the years censors, through the interpretation of the existing provisions in the light of prevailing public opinion, have been able to set standards of censorship which, to a great extent, have been broadly acceptable. This is evidenced by the small number of appeals against decisions of the film censor in relation to the number of films submitted. For example, in the period 1980 to 1991, 4,378 films were submitted to the censor and 32 of his decisions on those films have been appealed.
We can argue one way or the other about it and about the concept of public morality, etc. but there is nothing as persuasive at the end of the day as hard evidence. The hard evidence is that, by and large, the system has not caused grave anxiety, disquiet or irritation and that is evidenced by the tiny number of appeals that have been taken in the context of the vast number of films that have been submitted to the censor.
To take the last item which was raised by the Minister where he suggests that the very small number of appeals lodged is an indication of a minor degree of concern about things, I suggest that the lodging of appeals against films is something akin to the manner in which people go about obtaining loans of money. If the Minister or I felt it appropriate to obtain a loan from somebody, the last people we would go to are those who do not have any money. In other words, the lodging of an appeal will be very much determined and coloured by the prospects of that appeal succeeding.
I am not a lawyer and I know practically nothing about the law, but I understand it is a very foolish matter to appeal against the judgements of Mr. Justice Costello because I am told they are unappealable. One does not have a hope because of the way they are formulated.
The Senator should not refer to the Judiciary.
I will rephrase it and say a very distinguished and learned member of the Bar. I accept the Chair's correction. I am sure the Minister knows more about these matters than I do.
His judgment was overruled recently.
If the chances of succeeding in an appeal are minimal, people will not lodge appeals. It is as simple as that.
I do not have any difficulty with the Minister's criticism about these films being degrading as regards their portrayal of women. We used those terms primarily to show the degree of concern which has been expressed in recent times about the portrayal of women, which is degrading. I accept that it is somewhat restrictive but we are simply focusing in on the most important aspect of concern.
In relation to the Minister's remarks about morality analysts, I could not agree more. We have no shortage of them. They are exceptionally vigorous and committed in pursuit of their analysis of morality which would be fair enough but when they set about stuffing the results of their analysis of morality down people's throat, I part company with them.
Amendment, by leave, withdrawn.
Sections 4 to 6, inclusive, agreed to.
Title agreed to.
Bill reported without amendment, received for final consideration and passed.