There and Back Again: On the "Hobbit Law"

Hobbit from Stuff.jpg

By Sam Meyerhoff

The New Zealand legal system is a complicated beast with dozens of important issues demanding the public’s attention at any moment in time. Organisations such as political parties, the government or legal charities engage in the valuable work of trying to look at these large issues and provide important perspectives that ease public discourse. However, often the smaller pieces of legislation can say just as much as the biggest when it comes to debates on how our laws should be made. To mangle the words of J. R. R. Tolkien, even the smallest law can change the course of the future.

One such law is the Employment Relations (Film Production Work) Amendment Act 2010, more commonly known as the “Hobbit law”, named after the film series which caused its passage. Given the fact that Amazon’s Lord of the Rings TV series is set to start filming in Aotearoa shortly, it is worth revisiting the Hobbit law — not in terms of its content but what it says about our legal process: What flaws it highlights, and what risks there are of history repeating itself.

Setting aside debate around the merit of the law’s content, some knowledge of the industry it regulates is necessary to understand how and why it was enacted. New Zealand’s actors’ union (NZ Equity) has historically possessed less influence and sway than other equivalent unions in countries such as the UK. As such, during the early 2000s, many prominent actors like Robyn Malcolm spent a great deal of effort pushing for collective bargaining rights for film and TV cast and crew. However, when The Hobbit was announced to be filming in New Zealand, NZ Equity decided that now was the time to push more publicly and strongly for actors’ right to bargain collectively, despite being on individual contracts.

This move sparked an almost immediate backlash by both Peter Jackson, the director of the Hobbit films, and Warner Bros., the company behind the films. Among other things, they heavily critiqued the movement for being influenced and supported by the Australian actors’ union MEAA. Jackson even said in a public statement that “money and power lies behind this threatening behaviour from our Australian cousins”. This, combined with the fact that Warner Bros. threatened to take the Hobbit movies overseas, quickly turned a union dispute into a political issue that touched the heart of our national identity.

It was within this context that representatives from Warner Bros. met with then Prime-Minister John Key at Premier House to negotiate a solution to the problem. It is quite safe to say that this was an odd occurrence and it speaks to the stakes present that the government was willing to so publicly insert themselves into the situation. Following these talks, the Employment Relations (Film Production Work) Amendment Act 2010 was passed under urgency. The law banned actors from engaging in collective bargaining, ensuring that they were treated as contractors, not employees.

This is a controversial topic on which reasonable people can differ. However, if there is one thing from this story that should stand out as worrying to all people, no matter their personal convictions, it is the level of influence that Warner Bros. managed to exercise over the legislative process. It is telling that they met so directly with the Prime Minister. Realistically speaking, a corporation of that size, based in an entirely different continent, does not meet with the leader of a sovereign country unless they plan to very directly lobby for a law change.

Transparency in government is a good thing. Allowing people or organisations to engage with the legislative process and provide their opinions is a fundamental part of the rule of law. However, we need to consider when we cross the line from having an open system with equal input to a system so open that there is no allowance for means and resources. In other words, if there are no limits whatsoever for how people engage with the process of drafting laws, then those with the most money and power will inevitably exercise more influence than the average citizen.

The amount of weight given to Warner Bros' needs was in many ways disproportionate. While it should not be discounted that the Hobbit films greatly added to our local economy both directly and through tourism, we need to think about what we gave up. Companies who add to our society are traditionally thanked or aided in the form of economic incentives (like those received by Warner Bros under the then active Large Budget Screen Production Grant) which they are certainly entitled to. However, to go further than that and reshape our country’s laws to their desires is something else entirely. Even if these companies have purely altruistic intentions, that would still leave New Zealanders dangerously susceptible to the arbitrary power of an enormous film studio. One does not have to go too far into political philosophy to understand that this goes against some basic assumptions of freedom.

Of course, if issues affect a company, there is no reason why they shouldn’t be able to petition for law reform. We must be exceedingly careful to realise that the mistake with the Hobbit law wasn’t that it helped Warner Bros, but that it was passed after the company threatened to take the Hobbit films to another country. It is because of this fact that the law goes against the normal legislative procedure. Instead of being made to address what an industry needed from a holistic perspective, it was made simply to deal with an individual situation in a way that was encouraged by an outside source. If businesses are to engage in the political process, it feels better that they come forward with problems, not solutions.

While some legislative changes are coming under Jacinda Ardern’s government, such as allowing collective bargaining while still banning strikes, it is valuable to remember what the Hobbit law can teach us. Yes, it is an important part of an ongoing debate around New Zealand’s acting and film industry, but more importantly, it stands as an example of lobbying crossing a line and intruding into public law. We need to consider how our current system of transparency and engagement with the legislative process functions and whether it needs to be stricter. This is a careful balancing act, and we cannot realistically improve our commitment to one ideal without sacrificing our dedication to another. However, if one thing is clear, the system has the potential to fail, and change is needed sooner rather than later. Otherwise, we run the risk of embarking on an unexpected journey in the worst possible way.

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