Report of the Juvenile Delinquency Committee

by R. M. Algie

"(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 The provisions as to registration could then be repealed."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.