TELEVISION'S TWO major rivals have put aside their differences for a court battle to get sex scenes past the Broadcasting Standards Authority.

Their lawyer, Julian Miles QC, has gone as far as challenging the Broadcasting Standards Authority to reach rational decisions, not personal ones.

Both TVNZ and TV3 say the authority has become increasingly conservative.

They say recent rulings are at odds with decisions in the past, and have blamed that on changes to the make-up of the authority because the rulings have "obviously been influenced by the change of membership".

Although stopping short of saying the authority has been stacked with conservatives, they say it has been tougher on the "good taste and decency" standard since two new members, including the chairman, were appointed under National in late 2009.

But not everyone is unhappy. Family First has acknowledged meeting with the authority and Broadcasting Minister Jonathan Coleman last year, and spokesman Bob McCroskie said he applauded the new direction.

The authority has ruled a man performing oral sex on a woman in the late-night drama Hung, and two teenagers kissing on Home And Away, were inappropriate. Those decisions drove TVNZ and TV3 to join forces last week to appeal the decisions.

The Hung incident involved an episode where a woman's genital area was shown before she put her legs over a man's shoulders.

New Plymouth's Beth West complained, concluding: "I like to watch things that promote mankind's dignity rather than depravity." The authority upheld the complaint.

"In the majority's view, the scene complained about was prolonged, explicit and gratuitous, leaving nothing to the imagination and was designed solely for the purpose of shocking and titillating the audience."

But in court last week, Miles pointed to a 2007 decision on an Outrageous Fortune episode that involved a male and female sex scene.

In that case – which Justice Raynor Asher said was comparable – the authority declined to uphold the complaint, saying the show "pushed the limits of what is acceptable" but given the time-slot and expected audience it did not breach the standard.

TVNZ and TV3 argue Hung's context is crucial in deciding matters of taste, particularly when the scene was deemed to be for "shock and titillation". Miles said the "serious drama" was about a gym teacher who fell on hard times and turned to prostitution.

The offending scene was thematically consistent because it showed the role-reversal the show was based on.

Justice Asher summarised: "The traditional exploiter turned exploitee."

The Home and Away case turned on a classification issue. On March 24, TV3's long-running G-rated programme showed Liam and Martha kissing. Liam removed Martha's bathrobe, revealing her in a bra and pyjama pants. The pair then moved to a kitchen table.

The authority ruled the scene violated responsible programming and taste and decency standards, and went "well beyond what should be included in a G-rated programme".

Home and Away's G-rating is important for TV3 because if it was made PGA, as in Australia, it would be forced to show later than its 5.30pm slot, which leads into the news rating battle.

Miles said a November 2009 Home and Away decision had already dealt with the classification issue. In that ruling, involving teenagers kissing on a bed and a girl removing a boy's T-shirt, the authority dismissed a complaint.

Miles argued it was "crucial" that a quasi-judicial body rely on a "rational process rather than personal views".

Stephen Mills, QC, representing the complainants, pointed to a report into authority decisions by Professor John Burrows that acknowledged consistency of judgements was hard to maintain because of frequently changing membership. "The lines are not set in stone," he said.

Mills said the authority was "not bound to follow community standards".

"It's intended to try and read the mood of the community and where it's going – it's their job to make a decision where the standard should be set."

He said research showed that while sexual attitudes might be liberalising, attitudes to sexual material during children's hours were not.

McCroskie welcomed the authority's new direction and said he hoped it would become "consistent".

"What the broadcasters are saying is that the authority should turn a blind eye and let them continue to push the envelope."

Justice Asher reserved his judgement.

- Sunday Star Times