Films, Videos, and Publications Classification Amendment Bill

It is pleasing to lead the debate for National on this very important legislation. We have supported it through the first and second readings. We will be supporting it through the Committee stage, although during this stage we do have some concerns, which the Minister in the chair, I hope, will be able to clarify and to articulate the Government’s position on for us. There are some areas that we do not think strengthen the bill at all, but at the end of the day this legislation does improve the 1993 Act, and for that reason we will be supporting it. I know that the ACT member Stephen Franks has an amendment. I have gone through it and looked at the points that he brings forward, and I tell that member that National will be supporting his amendment. We will also be supporting the amendments of the Minister in relation to the penalties. When we look at the genesis of this bill we see it goes back many, many years to the inquiry that was held on films, videos, and classifications. During that period a number of submissions were received, which form the basis of the bill that we are debating tonight.

I want to start by looking particularly at the meaning of “objectionable”. One of the points I made during the first and second readings was that what may be objectionable to one person may not be objectionable to somebody else. That will be a matter of choice. But it is very clearly defined in clause 4 what the word “objectionable” relates to. I think it is important that we consider the court cases that have come before us, and in particular the Living Word Distributors court case, which changed in some respects what the censor could do. The censor believes that with that Court of Appeal decision, his job has become extremely difficult. I will, in further debates, articulate the reasons why that court case has, in some respects, actually not limited, but has expanded the criteria.

If we look in the Act under section 3, “Meaning of Objectionable”, at what that term actually means, we see that it does fall within the scope of subsection (1) where the subject matter or the gateways are matters concerning sex, horror, crime, cruelty, and violence. One of the points that has been of concern to the select committee is that the Act talks about “matters such as”. That is where the definition can be expanded and broadened. The phrase “matters such as” does not actually specify everything, whereas in earlier interpretations the use of the word “includes” certainly made it quite specific that sex, horror, crime, cruelty, and violence were included. There was much debate about that, and it is not a new issue. That debate has gone on since way back in 1993, and it has certainly come through here. However, we have to realise that this bill aims at effects, not at the causes. It is the effect of objectionable material that is the concern. The bill is concerned with the effect, be it of nudity, language, or publications.

The bill also moves beyond that and in clause 4 tries to include under “a matter such as sex” a visual image of “1 or more children or young persons who are nude or partially nude”. That is an area that Mr Franks’ amendment covers. I do not have his amendment in front of me at the moment, but I think that it seeks to clarify clause 4 and to make it very clear. It will be on the definition of “young person”; the bill does not really define what a young person is. In its submissions the Law Society stated that term is not defined, and although an appropriate definition of child or children may be readily discerned, the phrase “young persons” is already used in the principal Act and it is not stated what the age for a young person is. However, it is also in new section 3(1A), inserted by clause 4. The definition of a “young person” is important because of that. Is a young person somebody who is 18 years of age or younger, or who is 16 years of age? During the select committee stage in the Government Administration Committee we asked the advisers for their interpretation of a young person. In terms of the intent of the bill, specifically under clause 4, the Minister may like to clarify for us his interpretation of the very important term “young persons”, because that is crucial to the whole argument.

Another area that we should be very mindful of is what will happen with regard to the penalties regime. The penalties have been substantially increased, and it is crucial that we look to make sure that the penalties reflect the crime. Penalties are covered specifically in clause 27. We need to be able to make the penalties so severe that there is a deterrent there that will stop somebody from infringing the law or from taking advantage of young people. If we look at what the penalties regime does, we see that it brings in some quite severe penalties for that particular offence, and that is important. I know the Minister will move an amendment to the penalties on his Supplementary Order Paper 326, because offences relating to the possession or importation of objectionable material that involve knowledge of that are areas that we have debated at some length. Those are important factors that we need to take into account. If we look at clause 27 we can see that it relates to the display of objectionable publications to someone under the age of 18 years. Under the new penalties provisions a person is liable for up to 10 years’ imprisonment.

It is important in the penalties regime to bring it into line with those of other countries. Other jurisdictions around the world have different penalty regimes, and we want to make sure that the reasons that we are imposing penalties will be in sync with those regimes. In fact, we find that some jurisdictions—namely, Canada, the United States, and some of the Australian jurisdictions—have enacted distinct child pornography offences, with correspondingly high penalties. That is something that we discussed during the select committee stage, but in our case we felt that rather than have stand-alone provisions, we should have a unified censorship regime under which all publications are dealt with by one classification agency under a single set of classification criteria, using uniform classification procedures. We felt that we did not have to move in the direction of Canada, the United Kingdom, and some of the Australian states. Amendments in this bill to the schedules to relevant Acts identify the penalties: the length of time for imprisonment, and the fines that are incurred. That strengthens the bill quite deliberately. We know that people who are in possession of objectionable material and who have knowledge of that, or who are trading in the business will be caught by that offence, and that it is a very serious offence. The legislation allows for that.

There is also the area of importing and exporting, which is covered in clause 24. That is a serious situation. I want to acknowledge, as I did in the second reading, that the Customs Service is at the forefront in policing it.

I rise for the ACT party to advise that this bill, which should be able to be supported by every party and every member in this Parliament, is a highly objectionable bill—unless the Minister is prepared to use the Committee stage to remove its objectionable parts. The Minister in the chair, the Hon Phil Goff, knows that censorship is always a fraught topic. It is very difficult, indeed, to find a balance so that censorship powers cannot be misused by an establishment, or by one group getting its hands on the levers of power to suppress the opinions of others.

In this case we are amending an Act that everyone knows will always be problematic. We are amending an Act that the Court of Appeal interpreted—to tell the censor on three separate occasions that he was going too far in the direction of suppressing free speech, and doing it for purposes not related to the purposes the community, through Parliament, had seen as requiring the intervention of the law. Those purposes would be pretty commonly agreed—horror, torture, exploitation of children, and the kinds of things that a general consensus says represent objectionable material. In this bill, hiding under the guise of being something to deal with child pornography, we have the censor coming back and wanting to reverse—

💬 John Tamihere: What do you know about it?

Mr Chairman, I ask whether you could comment on that. I believe that the member had absolutely no foundation for making such a comment. I know of no reason. It is the sort of thing for which there should be an immediate request for the member to withdraw and apologise.

The CHAIRPERSON (H V Ross Robertson): I am sorry, I did not hear what the member said, but if objection has been taken I ask the member to withdraw.

💬 John Tamihere: I withdraw.

Sitting suspended from 6 p.m. to 7.30 p.m.

I was explaining why we believe that this bill, which increases powers of censorship, needs changes to protect against it being misused by people who do not see the necessity for the protection of free speech—to allow us to offend others. There is no free speech unless we can say things that some people might not like, might hate, or might bitterly disagree with.

This bill makes a test of material that includes images that depict, express, or deal with “conduct that, if imitated, would pose a real risk of serious harm to self or others …”, or conduct “of a degrading or dehumanising or demeaning nature.”, and images that are of a degrading, dehumanising, or demeaning nature. It seems that the drafters, either deliberately or incompetently, did not realise that those provisions could be used, for example, by Hindus to prevent depictions of people eating cows—which, of course, is deeply offensive to them—or perhaps by Muslims who would like to see New Zealand ban The Satanic Verses by Salman Rushdie or to prevent other depictions of Muslim practices as being barbaric or demeaning. The legislation states that if young people would be encouraged by a publication to regard themselves as being degraded, dehumanised, or demeaned, then that would fit the definition of objectionable.

We can easily see the pressure that could come on to this Government, or a public servant, to decide to curry favour with some of those fanatic groups in order to make sure that we do not give offence. Offence is the very essence of free speech. Almost every advance has been offensive at the time. The rolling back in our community and society of the power of priests and the theocracy, and of their ability to suppress new ideas, actually involved offence to the majority of the population at the time. It took years before it was not offensive to question views that the world was flat.

I believe that we have here, either unconsciously or deliberately, an attempt by the Government to empower the censor to suppress free speech. It is curious that Part 1 states that the Court of Appeal’s foundation for saying that the censor could not restrict the distribution of the Living Word Distributors Ltd video—

The Green Party supports this bill, but we will move one amendment to clause 4(1). We will do that—and I think that Lindsay Tisch indicated the problem in his speech, too—because the definition in it is a bit loose. Mr Tisch referred to the definition of a young person as perhaps being a bit broad. But perhaps the more fundamental point—I addressed it in my second reading speech, and the Greens now have an amendment on it—is that the breadth of the definition of visual images of children or young persons who are nude or partially nude tends to put the emphasis on whether they are nude or partially nude, and the reference to the sexual dimension is pretty vague. In essence, child pornography is really about child sex and visual representations of that. To refer, as the definition does, to visual images that are “reasonably capable of being regarded as sexual in nature” is a bit broad.

Clause 32 also has a definition of “child pornography”, with reference to extraterritorial jurisdiction in relation to offences in this bill. That clause refers to the optional protocol to the United Nations convention on the rights of the child. I think that the definition is a good one and could be transferred to new section 3(1A) of the Act, inserted by clause 4(1), in order to make the bill consistent. My amendment to the definition in clause 4(1) reads: “… a publication deals with a matter such as sex for the purposes of that subsection if the publication is or contains 1 or more visual images of a person who is or appears to be under 18 years of age engaged in real or simulated explicit sexual activities, or a representation of the sexual parts of a person of that kind for primarily sexual purposes.”

The existing definition in the bill can be a bit confusing, because there are two types of people who may be producing or looking at images of nude people, particularly of children. People who are into child sex or who are trying to get it often look at nude images of children or have nude images on their computer—that is true. But there is another category of people. That comes out, for instance, in Germaine Greer’s book The Boy, which has been a bit controversial. Are such images in relation to children deemed to be pornography, or are they to do with general artistic appreciation? Germaine Greer looks at the history of the presentation of images of boys. That is a legitimate debate. I am not an expert on who is right or wrong in that debate, but we do not want our definitions to be so loose that they tend to inhibit that sort of debate among people who are not into child sex and child pornography. So I think that the UN definition of child pornography in new section 145A(1), inserted by clause 32(1), is more clear that it is about people who are engaged in real or simulated sexual activities or about a representation of the sexual parts. That focuses on what I think we are really trying to get to when we attack child pornography.

The Minister has also brought forward an amendment to extend the penalties in this bill. In general, the penalties have been increased substantially. The Minister’s Supplementary Order Paper 326 will increase the penalty for the possession of objectionable publications with knowledge of that from 2 years’ imprisonment to a term of 5 years. I do not think that that is really necessary, because it is not just a penalty for people who are engaged in child pornography. It is a penalty that applies to all objectionable materials, and I think Stephen Franks said earlier that there can be a problem in defining what is objectionable.

It is interesting to follow on, in support of the bill, from the Green member, Keith Locke. He raised some interesting points about what the definition of undesirable pornographic or illicit material might be. I am reminded of the image of the girl during the Viet Nam War. That was a very powerful image, which all of us will remember, and it had a completely different message from what this bill might state as an undesirable outcome. I am sympathetic to the argument, but I say to the member that in most cases—99 percent of cases—the difference is absolute. In my view, those who cannot tell the difference between an image of a naked child portrayed in a sexual way versus the image that I mentioned really need to have a close look at what they are trying to liberalise. It is absolute, as far as I am concerned.

So, too, in my view, is the objection to the notion that this kind of activity should be tolerated in any way in society. Therefore, I thank the officials and the Minister, who took note of a late submission and introduced the Supplementary Order Paper that he suggests should pass through Parliament along with the bill. The reason is that it harmonises the situation we find ourselves in, in New Zealand, with the situation of internationally comparable Western nations.

I also say to the Minister that this is timely legislation because of what has happened with technology. If we look at what is the case today with regard to covert filming and the ability to do that, compared with what was the case in 1993, for example, then we see there is no doubt that some kind of amendment to the existing Act is necessary. Many submissions that came to the select committee, or certainly the advice officials had received, suggested that that was so. We can see how that is the case today, with cellphones that can take movies, and the like. So I say to the Minister: “Well done on that part.”

The part I guess that needs to be further thrashed out is whether the censor, who is ultimately the person who will make the final judgment call, will find that the legislative framework around that is clear, and that is the question our colleague Stephen Franks raised. The Minister may want to go back to his advisers and ask that question. I simply do not know. Mr Franks has submitted that that is not the case and that there is a bit of ambiguity. I do not know. Certainly, the officials may want to have a look at that. The reality is that I do not think there would be a person in Parliament, without exception, who would not want to see something in place to safeguard our children against the kind of activity those people want to be involved in.

I have said it before, and I will say it again, that I cannot understand them. I am somebody who is fairly simple in my thinking around this stuff. There is a black and white line between what is right and what is wrong, and if there is any ambiguity in the minds of people as far as that line is concerned, then they really do need to have a look at themselves.

It is interesting to look at some of the statistics around child abuse in this country. They are alarming. We have to ask the question: how, in a modern society like today’s, does anybody get into a position where they consider for more than a few seconds that the kind of activity this legislation is designed to protect our children against is acceptable or is something from which they should derive some kind of pleasure—perverted pleasure, as it must be? So I say to the Minister that he should take notice of those groups that have done that work. I know that he has, in terms of his amendment, but he should also take notice of the number of other alarming statistics that seem to be being promoted by various groups. I have in front of me a letter from the Parentline Charitable Trust, which has written to me in that regard. The trust quotes some figures. I have no ability to know whether they are right or wrong, but I presume they are right.

I rise to concur with my colleagues in welcoming the opportunity to support this bill, but of course we do have some reservations—or some of us do, certainly. None of us want to see our children put at risk in any way, shape, or form. I was privileged just this evening to watch a performance by some of our high school students in Play It Strange, which was absolutely magnificent It reinforces the need to protect our children in order to see them grow to be productive young adults.

But I have concerns. If we think of the photograph of the girl in Viet Nam in the context of subsection (1A), inserted by clause 4: “Without limiting subsection (1), a publication deals with a matter such as sex for the purposes of that subsection if—(a) the publication is or contains 1 or more visual images of 1 or more children or young persons who are nude or partially nude;”, we know that that young girl was nude. Therefore, any publication that that photograph appeared in would then be required to be classified as a publication that dealt with a matter such as sex, because that publication would have one or more visual images of a child who was nude or partially nude. So although it is quite clear that that was not the intention of that particular picture, it could fall within the classification in the bill under the clause heading: “Meaning of objectionable”. All that the provision requires is that the publication has one or more children or young persons who are nude or partially nude.

I find that very interesting. I do not know about other members, but many of us as mothers have photographs of our children where they are nude or partially nude. I have heaps. Often the boys would try to find them to screw them up and throw them away, but that was in the old days. Now, they do not seem to mind so much. Then, if such photographs are seen, paragraph (c) of section 3B(4), inserted by clause 4A, states that it would: “encourage them to treat or regard themselves, others, or both, as degraded or dehumanised or demeaned.” To “encourage them”?—I find that extraordinary in the extreme. I would love the Minister to take a call and explain why it is necessary to have such a subjective requirement in the bill that is really emotively based, and how that will apply when we look at the previous meaning of “objectionable”. Essentially, it could be anything.

I recall also that some Muslims objected to a billboard with a woman in a bikini. That objection did not go anywhere, but there was another case where women with burkas were going into court. I ask what that could mean. The arguments used for them to be allowed to wear their burkas were that for them not to wear them would place their safety at risk, and that it was degrading and dehumanising for them not to wear them because of their beliefs. So this provision inserted by clause 4A is quite an interesting one, and I do hope that the Minister will take a call. I think it would be very interesting to hear what he had to say, in that regard.

Clause 4B(3) contains another situation that is actually retrospective: “Without limiting section 42(3) of the principal Act, the Chief Censor may be satisfied under that subsection that there are special circumstances justifying reconsideration of a decision made in respect of a publication if the Chief Censor considers that the decision may be altered because of the new provisions.”—the new provisions of this bill. Why? I would have thought that decisions in respect of all publications have already been made, so why would we now want to go and retrospectively deal to any of them? I am sure they would have been dealt with appropriately, so is this just some desire on the part of the chief censor to have another go at something he or she did not particularly like, or is it an instance where the chief censor may have lost an argument and wants to have power later to get his or her own way? That needs to be very, very carefully considered. I just wonder now at the broad powers of the chief censor, and whether the accountability is there that should be there.

This is very difficult legislation. It has clauses in it that have sat around for a long time. A lot of child protection agencies have asked for, and wanted, this bill for a long time. But when it was tabled it was very disappointing to see that the penalties were not severe enough. They were not actually for possession of child pornography and they were not in line with those of other countries. I am pleased that the Minister has taken note of that, because when I said I would introduce a Supplementary Order Paper increasing the maximum penalty to 5 years for possession, he introduced his own Supplementary Order Paper to the bill. The message sent was that New Zealand was softer on possessors of child pornography than were other jurisdictions in countries like Australia, Canada, and the UK.

The essence of this bill, and the difficulty with it, is that it is two pieces of legislation. We are dealing with two issues here. Someone who has libertarian beliefs, who believes that the only time the State should interfere is when force or coercion is used and people are being harmed, would have to balance that very carefully with the heavy hand of the State coming down on censorship and breaching free speech. It is always very easy for people’s freedoms to be eroded in the name of protecting children. That is often a way that is used to erode the freedoms of consenting adults.

Clause 4, which proposes to insert a new section 3(1A) into the Films, Videos, and Publications Classification Act, is very, very ill-defined. I would like the Minister to explain why we are not taking the international definition into that clause. That is why I support Keith Locke’s amendment. As Sandra Goudie from National has just pointed out, every parent in this Committee—every mother, every father—will have photographs of their children in the paddling pool or in the bath. The Vietnamese girl in the photo was totally naked. Possession of such photos is not an offence if it is innocent possession, and that is what I mean by “fine line”. Perverts can do what they like with the photos—they can turn them into something obscene and into a cause for harm—but we should not be introducing legislation that punishes everyone who possesses images or publications that have “1 or more visual images of 1 or more children or young persons who are nude or partially nude”. That is such a light barrier to call into this legislation.

In fact, why are we even bringing in this legislation when we do not even enforce the law with our existing legislation? A couple of weeks ago we heard that Time magazine was holding New Zealand up as being a haven for paedophiles, because the country had been provided with a list of 75 names of suspected possessors of child pornography who had been tracked through their credit cards—so there was enough evidence for suspicion of trading—yet to this day nothing has been done.

I call on the Minister to explain why we have such a light meaning of “objectionable” in New Zealand. A common myth out there is that such material is harmless and that it is better that perverts and child abusers sit at home watching child porn on their TV than go out and abuse children. Well, that is not the case. There is a victim behind every image of child pornography. If possessors of child pornography are swapping, looking, or trading in it, then they are creating a demand and they are abusing children. Evidence has shown that many of those who just look do go on to offend, so children are in danger. That is a real risk and a real danger. However, we should not be passing a bill such as this one that, as I said, probably catches everybody in the country in its provisions.

I would like to address a number of issues that have been raised in Committee. First of all, I welcome the support from around the Chamber for this legislation, which produces much tougher penalties for those people who deal in the trade of child pornography. Whatever our arguments about freedom of expression, there is no one in this Chamber who would for a moment justify the use of young children in sexual abuse cases for the gratification of people who seem to enjoy that sort of thing. For a long time in this country we have had legislation that provides for a penalty of just 1 year for producing, trading in, or distributing pornography. [Interruption] The member has had his chance to speak. If he would just listen politely for a moment, he will have another chance.

If I could pick up Shane Ardern’s point, I think it is quite right that technology has totally changed the nature of child pornography and the menace it poses to our society and to the children who are victims of it. Instead of having the stereotypical man in a gaberdine raincoat going down to a seedy shop and trading images in ones or in tens, we are now having through the Internet the trading of images that run to tens of thousands. Clearly, the message has to go through that the penalties are tough for that sort of thing; that we will, as a society, protect our children; and that the chances of being caught are high.

I say to Deborah Coddington what an absolute nonsense that Time magazine article is, and I think she may have made the same comment. Denise Ritchie certainly regarded it as a bit of Kiwi bashing and sensationalism. We have in this country one of the best enforcement agencies in the world in the Department of Internal Affairs and the job that it does. Any member who does not understand the job the department does ought to go down and look at what it is doing, the sophistication of its operation, and the success rate in getting prosecutions. He or she would then see that some half-baked Aussie journalist—who knows nothing about New Zealand—claiming that we are a haven for child pornography could not be further from the truth, and that is a fact.

What we have in this legislation is a tenfold increase in the penalty for those who produce, trade in, or distribute child pornography. I think that is appropriate and in line with the penalties that exist in other like-minded countries. What we had was quite a dramatic increase, too, in the area of possession of pornography. Under the current law, as members will be aware, there is no prison sentence for possession of pornography. The legislation has been in place since 1993, and that legislation, frankly, has been inadequate. The original bill as approved by the Government Administration Committee proposed a sentence of 2 years for knowingly possessing child pornography. It was brought to my attention, I have to say, by Denise Ritchie that changes are occurring, as we speak, to the legislation and to the penalties for possession, in particular in Australia. For a couple of years Canada and the UK have had a penalty of 5 years for the intentional possession of pornography. In Australia the norm tended to be a penalty of around 1 to 2 years, but that has now changed in a number of states—Western Australia and Queensland, I think, are at 5 years—and three states are in the process of moving their penalties. New South Wales has legislation before its Parliament right now.

It made sense to me, and I think it would have made sense to the select committee in retrospect, that as that was the norm for the penalties for possessing child pornography, in an area where those images move across national boundaries we needed to be in line with those other countries. I willingly propose that change. I hope we will have support across the Chamber, and indeed I hope we will have support from the Green Party, I say to Keith Locke, because 5 years is the maximum penalty. It will not be applied in every case. The Department of Internal Affairs, for a start, uses its discretion in terms of who it decides to prosecute. So it prosecutes those who are into pornography in a big way. It does not take before the court the curious teenager who flicks on the screen and sees some of this stuff. Yes, those people will be pulled up and shown the error of their ways, but they will not be put in prison for 5 years. That privilege will be given to those people who are at the worst end of this offending. So I think that this bill and the two Supplementary Order Papers—there are two Supplementary Order Papers; Supplementary Order Paper 325 is largely a technical Supplementary Order Paper—and particularly Supplementary Order Paper 326 with regard to possession, make sensible changes.

A question has been raised about clause 4, regarding images of nude children. I think a genuine concern is raised by people concerning the graphic image of that young girl in Viet Nam who had been napalmed and who was nude, as to whether she would be covered. The answer is no—quite clearly, no—in the way this legislation is drafted. Will we see a Renoir of a child banned under this legislation? Of course not.

💬 Keith Locke: Why?

Well, if the member wants to listen for a moment, I will explain. He should show me that courtesy for just a couple of minutes longer.

The bill clarifies that images of nude children that are reasonably capable of being regarded as sexual in nature are treated as dealing with “a matter such as sex.” That is one of the gateway criteria for being covered and potentially regarded as offensive and prohibited material. The bill does not change the existing legal standard for prohibition. What it does is to clarify that certain images of children are to be regarded as “a matter such as sex” for the purpose of the subject matter gateway in section 3(1). This enables the classification office to consider whether they should be restricted or prohibited. Under the existing legal standards, the classification officer may restrict or prohibit them if they deal with a subject matter—and Sandra Goudie might like to listen to this—in such a manner that the availability of the publication is likely to be injurious to the public good.

Secondly, a publication must be prohibited if it promotes or supports, or tends to promote or support, the exploitation of children or young persons, or both, for sexual purposes. The Government Administration Committee heard that one of the favourite tricks of the child pornographer is to send out images of naked children for sexual gratification. We want to be able to clamp down on that practice. We do not want to take into this net examples of pictures of children who are nude that are not presented for sexual purposes and for sexual gratification. In fact, what this legislation does is to clarify what the Court of Appeal decided in the second Moonen case. This provision endorses the implicit finding of the Court of Appeal and removes that possible doubt. This is not something that will be misused for that purpose, and experience with this legislation will show that. I respect the work that the select committee did on a bipartisan basis to reach this conclusion and to present this report.

I come now to Stephen Franks’ amendments. I have read his press statement, which he kindly supplied me with. But I have to say that it is an absolute nonsense to say, as he says here, that this is smoothing the path for Labour to pass hate-speech laws later this year. I made the explicit decision not to incorporate hate-speech laws in this legislation, and the committee agreed. The committee, comprising National and Labour, agreed on a bipartisan basis, because, to give respect to that committee, it did not do as the member has been trying to do: play politics with it. Hate speech is an area that should be looked at in its own right. It is not something that will be done by the film censor, and it is something that I have explicitly excluded from this legislation. This set of amendments is to counter a situation that is a figment of that member’s imagination. There is no intention to do what he claims in his press statement this legislation is trying to do, and I deplore the fact that he is trying to wring some miserable politics out of something that had no partisanship in it in the first place.

I want to talk about the increase in the penalty. One of the problems with the Minister increasing the penalty to 5 years for possession with knowledge is that most members of the public will think it is about increasing the penalty for child pornography. Actually, it is about increasing the penalty for the possession of any objectionable publication. That is where the problem lies, and the Law Society identified that in its submissions to the Government Administration Committee.

One of the committee’s recommendations was that if the focus of litigation was to target child pornography, then consideration should be given to objectionable publications involving child pornography having a different maximum potential penalty from other types of objectionable publications. We want to focus on child pornography—and there is a huge increase in the penalty for possession of objectionable publications in general. The penalty for possession of objectionable publications—I think it was “without knowledge”, as defined in the original legislation—was $2,000 and no prison penalty. Under this bill the penalty for possession of objectionable publications “with knowledge” goes to 2 years’ jail and Supplementary Order Paper 326 jumps that up to 5 years, which is a heavy penalty. The reason we object to this heavy penalty being applied across the board is that the definition of objectionable material is fairly broad, covering sex, horror, crime, cruelty, and violence.

Historically in New Zealand we have seen what happens as society liberalises. In previous times the Little Red School Book and things that Germaine Greer said when she visited New Zealand in 1971 or 1972 were seen as objectionable, and bans or criminal cases ensued, etc. But often what is objectionable today is allowable tomorrow, if we get outside this area of child pornography and look at things particularly in the political and moral realm. A year or so ago, a chap in Auckland, Bruce Hubbard, emailed the American Embassy. He accused the Americans of “napalming babies”. The American Embassy took offence. The police charged him. Later they dropped the charge. But the fact that it got to that point indicates there could be a bit of a problem about what is considered objectionable and what is not. Should we really be applying a 5-year penalty to people at that level?

There is a problem, too, even with the age restriction clauses in the bill having such large penalties. Again, as the Law Society said, under the new penalty provisions a person is liable for up to 10 years’ imprisonment for showing a 17-year-old an objectionable image, but no offence is committed under section 127 if it is shown to a person on his or her 18th birthday. Sure, the maximum penalty for possession may be applied primarily to real child pornography offences, and the section on sentencing states that it is an aggravating factor if effectively it is child pornography. So child pornography offences may be at the very top of the scale in the judge’s mind, but other objectionable publications could be very heavily penalised. Also we have to be more cautious about possession penalties and make a bit of a distinction between possession and trading. Although possession should be penalised, I think the people we are really trying to hit on the head are the traders, the distributors, and the people who are profiting. To provide for a penalty of 5 years for possession of objectionable material that might not even be child pornography—it might be in those other areas I talked about—can be quite dangerous. We are in a very difficult area altogether here with the way cellphones are developing, enabling the sending of pictures. It is a very, very difficult area. We do not want to go mad in terms of our penalties at this point.

I want to bring up a number of points. The first one relates to what I call the tidying-up of the situation where a film is to be screened at, say, 9 o’clock at night, but prior to that time, in the earlier part of the evening, trailers are shown of some of the images in that film—a film that has been restricted for later viewing. I think that would certainly cause concern.

A constituent of mine from Cambridge has written to me, and I shall read out what he said, because it illustrates what some folk find in terms of violent adult programmes. On Television One on Saturday, 27 November, before The Inspector Lynley Mysteries, there was a preview of an adults-only programme prior to its screening at 5 minutes past 9 that carried the warning that some viewers might find the violence disturbing. The preview used the words “trail of death”, and there was an image of a large knife, immediately followed by a clip of a woman screaming in terror.

💬 Dianne Yates: Put in a complaint.

I understand that, and we are pursuing those sorts of avenues. But the point is that this legislation does move to rectify that in clause 5A, “Submission of films by labelling body”. It does provide that protection, and I think that is a significant change to what we currently have. Where a film or video is to be shown later in the evening because it is classified as restricted—let us say it is adults-only—then the trailer that precedes it should have the same classification. It is certainly National’s view that that would take care of some of the issues that came up during the select committee proceedings, when people complained about trailers prior to the screening of the main film showing violence. With that in mind, National supports the change.

I also want to bring to the Committee’s attention the use of search warrants. Some interesting information on this was supplied to us by the Ministry of Justice. I will quote straight from its notes, which articulate quite clearly what the position is. The ministry stated: “A search warrant is not available for the current strict liability possession offence. Although people are able to acquire large numbers of images over the Internet and store these on their computers, investigating simple possession offences is hindered by the lack of a search warrant power for these offences.”

We have heard of examples where images have been available and nothing has happened—there seems to be inaction. What has happened is that the Department of Internal Affairs has advised that it has evidence, including information from overseas investigations, that would be investigated further if search warrants were available for a possession offence. So we cannot place any blame on the department As the Minister mentioned and as I mentioned in the second reading debate, it is doing a sterling job.

The Government Administration Committee had an opportunity to see the work in which the Department of Internal Affairs is involved. That was my second visit to the department; I visited its premises when we conducted the inquiry into films, videos, and publications classifications. So I respect the work it does. I also respect the work the censor does, because there is no way that I could sit there all day looking at those degrading publications, and seeing the offences that are occurring and the images that exist. The points the Minister made were, I think, valid, and National certainly endorses them.

The final point I want to make about search warrants is that the legislation now gives that opportunity. If people have been trading images, or if people knowingly possess information or images, whatever they may be—

One of the things that sticks in my throat is the sad fact that we have to come to Parliament and pass legislation like this. It is sad that there are people out there who would abuse children in such a way that we need laws like this. It is an absolute tragedy. But I have to say that I am getting a sense that a lot of parties around the Chamber feel equally disgusted by the activities of some people in our community. This legislation will pass with a great deal of support from all around this Chamber, and I think that is gratifying. Times are a-changing. This legislation in every way supersedes my member’s bill that attempted to address some of these issues, but it did so not nearly as comprehensively as this bill does.

During the course of looking at the information that I was able to access as a result of my bill, I saw some of the material dealt with by the chief censor’s office. The kind of material that some people get their kicks out of is absolutely astonishing. Things that we might find simply obscene are nothing compared with some of the stuff that is out there. In fact, one has to watch some of the things very closely even to discern what is being sexualised.

I am reminded of one example that absolutely horrified me. It was a home video—which, I gathered from the information I was given, was to be put up for sale—in which a father actually videotaped his own child in bed. He videotaped certain portions of the child’s anatomy, and he kept moving the blankets, so that he could videotape his son and then on-sell. I find such things so disgusting and so appalling. So it is high time for legislation like this.

I am pleased that the penalties have been increased to the extent that they have been. I cannot wait for people to get caught under this legislation. I cannot wait to see people who have profited from, and who have enjoyed, child pornography and child abuse finally get the comeuppance they so richly deserve. So, of course, United Future will be supporting this legislation very heartily. The bill puts first the interests of protecting children from child sex abuse images, and the penalties reflect that, which is a good thing.

What the bill does not do, however, is address the vexed question of hate speech—and for good reason. We do not need to ask judges to determine subjective standards as to what constitutes hate speech. It is simply beyond the scope of this bill. Although we can all agree on addressing the problems of child sex abuse images via the Internet and suchlike, it falls far short of impinging on our freedom of expression.

I have looked at some of the amendments that members have suggested. I think they are trying to do their best, and I do not think anybody is trying deliberately to undermine this bill, but members in their zeal to put forward amendments might have overlooked a few things. In particular, I look at Keith Locke’s amendment to section 3(1A)(b) in clause 4. It states: “(b) the publication is or contains 1 or more visual images of a person who is or appears to be under 18 years of age engaged in real or simulated explicit sexual activities;”. Members can imagine just how difficult that would make it for the Department of Internal Affairs to prosecute, as the department would be required to prove that the person depicted was under the age of 18. It is pretty hard to do.

💬 Keith Locke: It’s in the bill. It’s definitely in the bill.

Well, the member should try to prove it. When one gets hold of this pornographic material, one does not always get hold of the protagonists who are involved in the video. It is pretty damn hard. And to expect to do that in order to secure a prosecution is just madness. So from that point of view, I know what the member is trying to do—it is a good effort—but it is not good enough.

💬 Peter Brown: Like the NCEA.

That is right. The provisions on speech that is considered to be highly offensive to the public in general do not actually stop free speech; they restrict it so that it is not likely to cause harm to those who are under age. The legislation does not restrict one’s freedom to say those things, but it does protect young children.

💬 Stephen Franks: So you can’t teach kids.

It is not a question of trying to teach kids. One would have to be pretty peculiar if, by way of trying to teach a child, one were to give the child a video that degenerated into the worst possible language or was pornographic.

I move, That the question be now put.

This is important legislation, because it is all about striking a balance in society—a balance that, I think, is increasingly difficult to strike—between freedom and appropriate restraint. It is a bit like the issue of whether judges should legislate or whether they should be subject to some faint constraint.

National supports this legislation. I think it is sad that we come to it with a number of Supplementary Order Paper amendments. Those issues are really best addressed, if it is possible, in the context of the select committee stage. But I feel strong sympathy for the proposals that Mr Franks, a wise and able legislator, seeks to move in Committee. They are changes that I think would bring improvement to this legislation.

I see the young Minister in the chair, Mr Goff, scoffing at what my comments have implied. He falls short of being prepared to endorse the intellect of Mr Franks. But I do not for a moment do that, because I think there are a number of points in the proposed Supplementary Order Paper that are worthy of consideration. The problem is that when those amendments come fast and late, it is difficult for the officials to immediately recognise the burden of the argument and the strength of the propositions. I express the hope, therefore, that the Minister in the chair and those members opposite, in what is a very crowded Chamber tonight, may see the merit of what is being proposed by Mr Franks. It is easy to follow, because following the changes that he proposes to make to Part 1, there is a simply worded explanation about the consequence of each part.

It is incredibly important that, as legislators, we seek to define the society that we wish to live in. I have said before in this House and in this Committee that it is very difficult to legislate in any realistic way what is appropriate or inappropriate behaviour. The most that can be given are signals; signals that, hopefully, people in the community will pick up from the way legislation is drafted as to what is or is not appropriate conduct, and we see it here. There are limited proposals for change, which are set out in the bill as reported back from the Government Administration Committee.

So I endorse what Mr Franks has to say and the reasons for what lies behind what he plans, and I am sure that National will support what Mr Franks proposes. I commend to the Committee the basis of his Supplementary Order Paper. I express the hope that National will vote for it. I also express the hope that National—as I am sure it will—will vote for the thrust of this legislation. Although maybe it is a little bit remote from the Films, Videos, and Publications Classification Amendment Bill, it nevertheless touches very much aspects of morality in our nation.

I have had the good fortune to have climbed Kilimanjaro in the last few days and to have been to Arusha, which is at the base of the mountain, and to have seen the International Criminal Court in action. I heard a story about a priest who padlocked 2,000 people into his church and then proceeded to bulldoze that church to the ground with the consequence that those 2,000 people lost their lives. As the International Criminal Court hears that case, which is now at the point where the prosecution has closed its case, it has the opportunity to set an example.

That is what we do as legislators. We have to sit and carefully ponder whether what we are debating is good stuff in the context of governance to provide leadership, or whether it is merely politically correct window dressing. We need to be cautious as we advance with legislation of this type to make sure that it has a message and a leadership ideal.

I move, That the question be now put.

A party vote was called for on the question, That the question be now put.

💬 Stephen Franks: That’s a disgrace.

The CHAIRPERSON (H V Ross Robertson): Order!

💬 Stephen Franks: It’s a disgrace.

The CHAIRPERSON (H V Ross Robertson): I am on my feet, Mr Franks. You will sit—

💬 Stephen Franks: I don’t care if you are on your feet.

The CHAIRPERSON (H V Ross Robertson): Will you please be seated. You have one more chance. [Interruption] Will you just go? Leave the Chamber.

💬 Stephen Franks: That was a disgrace. The Minister attacked me personally, and I have had no opportunity to speak.

The CHAIRPERSON (H V Ross Robertson): Leave the Chamber. Mr Franks, if you continue I will name you.

Stephen Franks withdrew from the Chamber.

💬 Rodney Hide: I raise a point of order, Mr Chairperson.

The CHAIRPERSON (H V Ross Robertson): I wish to put the vote. I will refer members to Speaker’s ruling 9/5: “Once the chairperson has accepted a closure motion and commenced to put the question, it does not matter how far the chairperson gets; under [Standing Order 51] the time to report progress is deferred until the closure and any consequential questions are determined.” I intend to take the vote and then I will hear the points of order.

I raise a point of order, Mr Chairperson. I draw your attention to the fact that New Zealand First is the third-largest party in Parliament, and we will probably be the second-largest after the next election, and we have not had one single call in this debate—not one. I have taken a close interest in this bill. I was not on the Government Administration Committee, but I have listened to members speaking. I have heard very little from the Government members, except from the honourable Minister. I have deliberately sat back to listen intently to the debate. It is quite outrageous that we did not even get the opportunity to contribute to it at all.

💬 Rodney Hide: I raise a point of order, Mr Speaker.

The CHAIRPERSON (H V Ross Robertson): I will first answer Mr Brown, because I think he is entitled to it. Mr Brown, you are quite right. You have been here in the Chamber, and you have not sought the call at all. We had over 15 speeches, and I therefore took the closure motion. It was not the first closure motion. I turned down the first closure motion and took the second one.

I raise a point of order, Mr Chairperson. I want to draw your attention to this issue. We know that the Government is under pressure to get a lot of legislation through, but I want you to reflect on the fact that the ACT party has three MPs here. Deborah Coddington has moved an amendment that the Government has incorporated into the bill. I have come down to the Chamber to speak as party leader, but I have not had the call and so have not had that opportunity. Stephen Franks has made one contribution to the debate on Part 1. He has moved substantial amendments. The Minister chose to speak after him. He totally misrepresented Mr Franks’ amendments, which Mr Worth kindly spoke in support of as having merit. The Minister then launched into a personal attack on Mr Franks. He took two calls to do so. Then you chose to close down the debate on Part 1. New Zealand First did not have an opportunity to speak, and that is absolutely appalling. I saw Peter Brown requesting the call when you took the closure motion. The ACT party’s three MPs all made a contribution to the final legislation. Mr Franks had his reputation shredded and his amendments misrepresented by the Minister in the chair for political purpose, and you chose to close down the debate. I accept that that is your right, but I ask you to reflect on that behaviour because it does not allow Parliament to function. One party has been completely excluded, and a party that has made a major contribution to this legislation has had only one opportunity to speak. I suggest to you that a way forward is for you to invite Mr Franks back to the Chamber—because I think he was provoked beyond measure—so that he can contribute to the further parts of this legislation. I think that would be fair. I suggest that you also allow some latitude so that New Zealand First and ACT can contribute to the debate on the subsequent parts of this legislation.

The CHAIRPERSON (H V Ross Robertson): I thank the member for his considered opinion, and I appreciate the way he has put it. I say that I had looked at the proportionality of the debate, and it was bang on apart from New Zealand First, which did not seek a call at all during the 15 speeches. I may have missed that, and I apologise if I have made a mistake. I have considered what Mr Hide has said about Mr Franks. If he speaks to the Clerk afterwards, I will reconsider my position.

What does he speak to the Clerk about?

The CHAIRPERSON (H V Ross Robertson): About the time that he has been sent out.

How can he speak to the Clerk if he is not allowed in the Chamber?

The CHAIRPERSON (H V Ross Robertson): You, Mr Hide, may like to come to the Table later.

I raise a point of order, Mr Chairperson. Stephen Franks has a number of amendments to Part 1—in fact, there are six amendments—and we will be voting on them in a moment. Although I respect the decision you have made and I am not relitigating it, I think it is important that the member, because he has made a contribution on earlier parts, plus he has six amendments to Part 1, should be allowed back into the Chamber so that he can take part in the debate on Part 2 and then on the title. He has made a contribution in the past. I have been present right through the debate, and I think that with the goodwill of the Committee it would be my recommendation—

The CHAIRPERSON (H V Ross Robertson): I thank you, Mr Tisch, and I will take that into consideration. I have invited Mr Hide to come to the Table.

💬 Peter Brown: I raise a point of order, Mr Chairperson.

The CHAIRPERSON (H V Ross Robertson): I have ruled on this matter.

💬 Peter Brown: I want to draw your attention to something new. It is a new point of order.

The CHAIRPERSON (H V Ross Robertson): It had better be a new point of order, because I have ruled.

On behalf of New Zealand First I admit that I took my time about seeking the call, but I waited for Marc Alexander to speak because I know he has a particular interest in this bill and has followed this legislation very closely. You said that I had not sought the call at all. That is not true. I was on my feet when Dianne Yates moved the closure motion and again when Jill Pettis moved the closure motion, but I did not get the call.

The CHAIRPERSON (H V Ross Robertson): I am sorry, Mr Brown, that I did not see you, but there is another part to the bill and I will certainly take into consideration the submission you have made. There are a number of amendments to be voted on.

The question was put that the following amendment in the name of Keith Locke to clause 4 be agreed to:

to amend subclause (1) by omitting proposed new section 3(1A)(a) and (b) of the principal Act, and substituting the following new paragraphs (b) and (c):

(b) the publication is or contains 1 or more visual images of a person who is or appears to be under 18 years of age engaged in real or simulated explicit sexual activities; or

(c) a representation of the sexual parts of a person of that kind for primarily sexual purposes.