Films, Videos, and Publications Classification Amendment Bill

National has been very much involved in the Committee stage of the debate this evening. I will summarise the major points we have articulated. We are in support of the bill, and we have been right from the word go. It has also been interesting, sitting on the Government Administration Committee, to hear what the submitters said. I find that some of the views expressed this evening are certainly not my understanding of the bill. However, that aside, we have made what I think is a positive contribution to a bill that deals with something we strongly believe in: the protection of children and of society.

But we should look at a couple of points that possibly have not been made, and they are concerns that we will probably never get away from. The bill is about effects, not causes. What are the effects on children and on society? That is really what the issues are. It does not matter what laws we pass, it will be very difficult to give the 100 percent protection that society and parents look for in protecting their children from pornography. The United States has found it extremely difficult to find a law to battle online pornography in particular, and that battle has not been easy. The only thing one could really say is that it is about the way children are brought up. We know that it will be very difficult for police telecommunications, the chat rooms and messaging that children can have access to, and cellphones that can send images. The police, in their submission, identified those things as major challenges.

If we look at the term “objectionable”, what is objectionable to me may well be different from what is objectionable to my neighbour, so it is very, very difficult to define. I may be quite happy sitting at home, watching a video that has scenes that possibly my neighbours might object to, but in my own home they may be facets that I believe are important to me. I want the freedom to be able to associate with, to view, and to hear whatever messages are being portrayed at that time.

But one of the real concerns, especially with young people, now that they have cellphones and digital cameras, is whether they are offenders or victims. That question has not been talked about this evening. When they are trading those images between their friends, are they offending or are they victims? Some would argue that they have an addiction. A lot of people would argue that it is not an addiction, at all, it is a behavioural pattern, and that is a view I share. Some people would say that they have a sickness or an addiction. It is certainly not easy to quantify, but at the end of the day these are behavioural matters, because it is about choice.

So as we draw this debate to a close, I believe that the major features of the bill are moving in the right direction. It is about the protection of society and the protection of children. I said in the second reading that the bill probably does not go as far as many would like—it will be a matter of interpretation—but the bill does extend the scope of the trade in commercial offences in the Act to include non-commercial distribution. It further extends the trade in commercial offences in the Act to include importing and exporting objectionable material for the purposes of supply or distribution, and aligns the relevant provisions of the Customs and Excise Act 1996.

The bill increases the maximum penalties for making, trading in, and distributing objectionable material including child pornography, to 10 years’ imprisonment. It creates a new offence punishable by up to 5 years’ imprisonment—and this was in the Minister’s Supplementary Order Paper 326—relating to the possession by a person of an objectionable publication, knowing or having reasonable cause to believe that it is objectionable. The bill requires the court, when sentencing for an offence involving an objectionable publication, to take into account as an aggravating factor the extent to which the publication is objectionable because it contains child pornography. It gives a District Court judge the power to issue search warrants in connection with the suspected commission of a new “possession with knowledge” offence. It removes any doubt that nude or partially nude images of children that can be reasonably considered sexual in nature are publications that deal with “a matter such as sex”. The bill specifies that a publication that would otherwise be classified as “unrestricted” may be given an age restriction if the publication contains offensive language, exposure to which would be harmful to persons under that age.

Those are the main points of this amendment bill that we are debating tonight, and they have been supported by National through the Committee stage. We will continue to support the bill when we move to the third reading.

In summarising through this debate on the title and the first clause of the bill, it is appropriate, given the claims the Minister has made for this bill, to look at what the principal Act already has and at what changes this bill really makes. That Act provided already a very substantial focus on the interests of children and on the offences that can take place against children. The key advances of this bill are to belatedly expand the offences to ensure that what was previously only an offence for trading is also an offence for possession, and to deal with the internationalisation of such material to ensure that Internet transmission is more easily followed, as some of the Act’s provisions had been done in an age when import and export was a much more straightforward thing.

But the Minister has not explained why Part 1, in the first few clauses, so substantially expands the powers of the censor to restrict. It is perfectly possible—and ACT did not try to change and did not object—to expand the wording so that it expressly covered infliction of pain, self-mutilation, body modification, or self-inflicted death. Although it appeared that the existing section defining pornography for those purposes probably covered it, we could see that it did no harm, if one accepts the scheme of the Act, to make those matters express. Nor were we concerned about the provision that deals with looking at the likely outcomes to test what the nature of the material is, and the wording of the new section 3B(4)(b), inserted by clause 4A, which states: “increase significantly the risk of them killing, or causing serious harm to, themselves, others, or both;”. We could see that that was the sort of boundary one might choose. But Mr Goff made no attempt to argue why this should go further and allow the banning of material that encourages people to consider themselves demeaned.

Obese people feel demeaned when obesity is pointed out. All kinds of people raised in strict or rigid religions—for example, Muslims, Hindus, or Jehovah’s Witnesses—would feel demeaned by the kind of mockery of various forms of Christian belief that is routine in our media. That mockery is something that in a free society is important. It is laughing at tyrannies that has eventually started their collapse. But this bill allows the censor to decide—as this censor did 4 years ago—that a bunch of middle-aged talking heads who say that homosexuality is wrong and bad for young people, can be banned so that those young people cannot get that message.

The Minister has made no attempt whatsoever to explain why it is that he is now pushing through legislation, with the help of United Future, to enable the censor to go back and re-ban what the Court of Appeal said should not be banned because it would be a breach of free speech. The Minister has not tried to explain. He falsely implied that ACT had forgotten about a section in the legislation that says that someone cannot be convicted retrospectively. But he ignored the fact that our amendment was to try to prevent the censor from going back and retrospectively changing a decision that had already been made on a publication, and, in this case, a decision where the censor was directed by the court to go and apply a different test.

Why should anyone vote for a bill that is being pushed through, with the Minister being completely unwilling to answer questions on the words and responding to critics only with a tirade of completely false accusations against those who ask for an explanation? He talked about this bill banning swearing, or foul language. Nowhere does the bill refer to swearing or foul language. The words it uses are “highly offensive to the public in general”. Well, for a very long time it was highly offensive to the public in general to question the existence of God, and I cannot see anything in the bill as it stands that would prevent someone from using this legislation for similar purposes against some current fervent belief held by the majority of the population that happens not to be right.

In this case it could well be, as Mr Prebble pointed out, that the highly offensive language provision is invoked by Muslims, who simply do not like—[Interruption]—or against Muslims. It could be for or against, and in a free society it is wrong that a censor can get into determining on the basis of the offence caused instead of on the basis of applying article 19 of the Universal Declaration of Human Rights, which outlines the fundamental human right to free speech. [Interruption] Exactly. Well, in fact it is not fanciful. In Britain at the moment a bill is being debated that would enable the Government to ensure that Salman Rushdie’s book could not be published in Britain. Of course, the Government finds it easier when it has a whole lot of fanatics to decide that the person causing the problem with the fanatics is the one who stands up to them. That is exactly what this Government is setting the censor up to do, whether or not it wants to. When the power is there in the law, fanatics of all persuasions will bring pressure for that power to be used so they do not have to meet offence with reasoned argument.

Before parties vote for this bill, they should ask the Minister to explain what he has not managed to explain in the three calls he has taken—in fact, in the four calls when we consider the extended one he had first off—because this is a very serious issue. It is obvious that we all support increasing the effectiveness of provisions that deal with child pornographers and those who abuse children. But it should be of equal concern to every party when the Government brackets together something that pursues an entirely different objective. In this case, we do know that the New Zealand censor wanted to ban a publication by fundamentalist Christians about their objections to homosexuality. I tell the Minister that that is a fact, not some figment of our imagination. The censor did that, and then dragged his feet despite the Court of Appeal saying that the section 3 gateway test was not satisfied. The publication did not involve exploitation, torture, or sexual degradation; it was a propaganda film that was a form of free speech.

Now we have the Minister refusing to explain why a provision in this bill states that the censor, in future, can ignore the Court of Appeal judgment in that regard. In future, the censor does not have to apply the gateway tests. The Minister has not explained, and no one else has tried to explain, why the members of the Government Administration Committee thought they were preserving the gateway test. I wonder whether they even knew what had been drafted for them. I do not think there is a lawyer on that committee, and that is a shame, because sometimes a slippery Government will slide things past a committee that has acted in perfectly good faith—a committee that has heard the concerns of very legitimate people and has tried to respond to public concerns. Here, in this bill, have been put some provisions that, it appears, the committee did not understand, because the committee’s own report seems to be contrary to what the words of the bill provide.