Films, Videos, and Publications Classification Amendment Bill

I move, That the Films, Videos, and Publications Classification Amendment Bill be now read a third time. The key feature of this legislation is that it implements tough sanctions against the production, trading, and possession of child pornography, and objectionable material of a nature similarly unacceptable to the overwhelming majority of New Zealanders. Electronic technology has made the transfer of images of this nature around the world much easier, and the volume of this material has multiplied over the last decade. Every image represents the actual abuse of a child, and every trader and consumer of such images creates a market that encourages more such abuse.

Child pornography and extreme images such as sexual torture and snuff movies are unacceptable in our society. The sanctions against it should reflect our abhorrence and intolerance of such material and should act as a deterrent against it. Consequently, this legislation dramatically increases penalties for the production of, trade in, and possession of such objectionable material.

For those producing, trading, and distributing these images the maximum penalty increases tenfold from 1 year’s imprisonment to 10 years. This brings us into line with comparable countries such as the United Kingdom, Canada, and Australia. For intentional possession of child pornography and like material the penalty increases from the status quo where there is no prison sentence, to 5 years’ imprisonment.

I moved a Supplementary Order Paper in Committee increasing the level of penalty to 5 years rather than the 2 years in the original bill and the 2 years recommended by the select committee. This was to recognise the desirability of consistency with like countries. Canada and the UK have had this level of penalty for several years, and states in Australia not already at this level are currently moving towards it.

The deterrent effects, of course, are not only in the level of the penalty, but also in the prospect of being caught. In this respect I pay tribute to the excellent work done by the Department of Internal Affairs and its commitment, along with police and the Customs Service, to stamping out this vile trade. The Department of Internal Affairs has an effective monitoring and investigation unit that has achieved a prosecution success rate close to 100 percent. Its work is recognised by Interpol and by its counterparts in other countries as being second to none. It rejects, and I reject, allegations by an ill-informed Australian journalist in Time magazine that New Zealand could be a haven for child pornographers. That is sensationalist and inaccurate Kiwi-bashing that is simply not true.

Aside from the major changes to the penalties that apply to objectionable material and the broadening of powers to exercise search warrants for it, a number of small changes have been made to clarify what the principal Act prohibits. By and large, no changes have been made to the scope of the material that can be found objectionable and that is therefore banned under the Act. The same gateway provisions are maintained in relation to what can be subject to censorship. Those are: “matters such as sex, horror, crime, cruelty, or violence”. The Act and the bill are not about exercising control over what people think and the opinions they wish to express, as falsely claimed by the ACT spokesperson, Stephen Franks. We live in a relatively liberal society in terms of what is accepted as an adult right to view or to hear, but there are images that are and will remain unacceptable to the vast majority of New Zealanders that we will not allow because of the damage done to individuals and society. In particular, those are images that involve child pornography, extreme violence, and sexual violence.

The bill makes explicit the decision in the second Moonen case before the Court of Appeal that sexualised images of naked children meet the gateway test for objectionable material. That does not and will not affect innocent images, but will allow the censor to deal with material currently and frequently being swapped by child pornographers. The bill also allows the censor to restrict some further matters as objectionable if shown to or viewed by children. That does not equate to an outright prohibition, but rather is a restriction to protect children. It has been accepted that some material that can be distributed to adults ought not to be put before children. Both publications and films currently have, when deemed appropriate, restrictions that do not allow access to them by those aged under 18.

Restrictions placed in the bill relate to matters such as language that is highly offensive, suicide, infliction of pain and self-mutilation, and physical conduct of a degrading, dehumanising, or demeaning nature. Despite the arguments of the libertarian ACT party to the contrary, it is appropriate that we protect children against extreme examples of those things.

It is also important to address what was in the 2002 Government Administration Committee inquiry report on the Films, Videos, and Publications Classification Act that is not included in this bill. Hate speech is not included, because I do not regard that as an appropriate topic to be addressed by the censor. Given the fundamental importance of freedom of speech in our society, it is a subject that needs to be approached with real caution and in a way consistent with the New Zealand Bill of Rights Act. There was bipartisan agreement on the committee to hold an inquiry into hate speech. It is an appropriate subject for debate and analysis, and I look forward to hearing that debate. There is, however, no predetermination of what the outcome of that inquiry might be.

The other issue addressed by the select committee was covert filming. The covert filming of people without consent or knowledge in situations involving nudity or physical intimacy, where people have a reasonable expectation of privacy, frankly is unacceptable. Separate legislation will be introduced later this year, consistent with the Law Commission’s report on that issue.

Finally, I thank the select committee for the job it has done in—I believe—a non-partisan way, and most parties in this House for their support for what, I believe, is important and necessary legislation. I commend this bill to the House.

National concurs with the views of the Minister—not all his views, but certainly we have supported this bill through all its stages, and we will continue to do so during the third reading debate.

I want to summarise how National sees the bill. I think we need to take a step back to 1993, when the principal Act that we currently have was passed. Society has changed considerably. The emphasis then was on classifications that revolved around hard copy, but with the advent of the Internet, text messaging, and chat rooms, the scene has changed considerably. With that in mind, National has supported this bill.

It is also interesting to note what has happened in Australia. The Minister Phil Goff mentioned Australia. I have here a report from the Minister for Communications, Information Technology and the Arts, released last year, headed: “Tough laws to target Internet child sex crime”. I will read the first paragraph, because it summarises our position, as well. This is what the Australians said last year: “Use of the Internet for accessing, transmitting or making available child pornography will be punishable by ten years’ jail and using the Internet to procure or ‘groom’ children for sex will be punishable by up to fifteen years’ jail under proposed new laws released for public comment today.”

That is what is happening in Australia, and New Zealand is in line with that. However, I think another comment that came from a report by the Standing Committee on Social Issues is important. The chairman stated: “At the centre of this inquiry has been the tension between the right of adults to see and hear what they want—a right that underpins democratic and cultural expression—and the need to ensure that vulnerable people, especially children, are protected from exposure to dangerous and exploitative material. While this tension has always been apparent in classification law, it poses new problems in the rapidly developing medium of the Internet.” It is interesting that while we have been debating this over the last 12 months—and prior to that when we had the inquiry—the issues that other countries have also been facing are apparent.

The bill will not go far enough for many people. They will certainly see it as not being tough enough in the direction they want to take. For others, the bill will be seen as maybe too restrictive—and we heard that view during the Committee stage of the debate. It is certainly National’s view that the bill clarifies some of the important issues that have arisen since the 1993 Act was introduced. It deals with subject matter such as sex, and it enables the Office of Film and Literature Classification to consider whether such material should be prohibited, applying the same substantive rules that it does now.

In relation to nude or partially nude images of children or young persons, the chief censor is likely to assess whether a publication, firstly, deals with the subject matter in such a manner that the availability of the publication is “likely to be injurious to the public good”, and, secondly, “promotes or supports, or tends to promote or support, the exploitation of children, or young persons, or both, for sexual purposes:” With regard to the provision dealing with highly offensive language, there is just a small number of publications that the bill captures. It does not deal with any of the objectionable grounds such as sex, horror, crime, cruelty, or violence, but nevertheless it contains an emphasis on the quantity of highly offensive language, and age restrictions then become justifiable.

No one has talked about intimate covert filming, which the bill does cover, and I will mention that. The bill does focus on covert filming of another person, without that person’s consent or knowledge, in situations involving nudity or physical intimacy where people have a reasonable expectation of privacy, and I think that that is an important position. I talked about the display of restricted publications in relation to trailers for DVDs, videos, and films. They have a classification, and a trailer should have whatever classification the film has.

No one has talked about film festivals. They are not exempt from the legislation. The legislation requires all films to be rated, classified, and labelled before they are made available to the public. That underpins two fundamental objectives that National supports.

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

I find myself in the position of wishing to complete Mr Tisch’s call. He was speaking prior to the dinner break, and I understand he had 4 minutes to complete his contribution. It will not come as any great surprise to members of the House to learn that the National Party will support the third reading of the Films, Videos, and Publications Classification Amendment Bill. Some reservations have been expressed by members on this side of the House regarding the penalties imposed by the bill, and the severity and extent of those penalties. I am sure that, like me, members have received a number of pieces of correspondence on the issue of penalties and their severity if, indeed, a person is found to be in breach of the provisions of this bill.

There is no doubt in the minds of National Party members that in respect of this legislation, in an attempt to balance issues of freedom of expression on the one hand and then to deal with what can only be described as despicable criminal behaviour on the other hand, the issues of freedom of expression are well and truly overtaken by a greater public good—which is, of course, to protect innocent children and to protect innocent members of our society who may be taken advantage of in the technological age. I do not think that any member of the House would quibble with that fact. As I say, Judith Collins, the member for Clevedon, will follow me later in the debate and give a comprehensive outline of matters relating to this bill. She, of course, was heavily involved in the bill’s stages as it progressed through both the House and the select committee stage.

I will complete Lindsay Tisch’s speech by simply saying that it would be a brave member of Parliament—actually, it would be a foolish member—who stood in this Chamber and did anything but support the intent of this bill. Members of the National Party, as I have expressed, do have some reservations about the severity of the penalties to be imposed under the offences provisions of the bill. I will leave the matter there, and I will look forward to the contributions that other members in the House will make.

I am pleased to be given the opportunity to make a third reading speech. First, I would like to thank the chair of the Government Administration Committee, Dianne Yates, who nurtured this bill through, and also all the members on that committee. They took this legislation very, very seriously. It was one of the nicest bills I have ever worked on—for something so contentious and difficult—in that we worked in consensus on it. I thank the National Opposition members who were on the committee, Lindsay Tisch and Shane Ardern. They worked very well with the other committee members.

Also, we were well supported by staff from the Department of Internal Affairs. They took us to see their monitoring of Internet sites, and I was incredibly impressed with the professionalism of the small unit that traces the trading and movement of Internet pornography, globally, and with how well it did it. New Zealanders can be very proud of that unit, which is run by the Department of Internal Affairs. They can feel confident that the unit is taking a real world lead in participating in and contributing to the tracking of child pornography. That was very reassuring to the whole committee. We had first considered this bill after the Ministry of Justice review of offence and enforcement provisions, but it was only after looking at some of the images when we visited the unit that we realised that perhaps the penalties regime proposed in the original bill was too light.

Also, it was really quite deeply disturbing to see, after a briefing by the Chief Censor of Film and Literature, the censorship challenges that members of the censor’s staff have with the classification of publications—whether those be moving images, books, or magazines. I personally found their work to be hugely challenging. I would be classified as being a liberal, but there was a threshold at which I found some of the images to be absolutely abhorrent, because they definitely depicted women, children, or men—who were not actively participating in the filming of those images, at all—being grossly exploited. There was a margin where one thought: “This is OK—Whoops! This is the cut-off.” So, after having been briefed so intensely by the chief censor and the classification office, as well as by the Department of Internal Affairs, we certainly took this bill incredibly seriously.

The offence provisions and penalties in the bill are not light, and that is exactly as we intended. We intended to put out the message that reflected both this Government’s and society’s abhorrence of the dealing in this material. As well, people who distribute pornography do not do it lightly. It is not just a matter of those people flicking on a file; it is about their downloading material, meticulously filing it into subfolders, and then posting if off to people whom they know like the particular material in a folder. The demand for that is incredibly sophisticated.

As a mother, I feel regretful that I did not watch my children’s use of the Internet closely enough. I thought they were happily engaged. I really do urge all parents in New Zealand to monitor more what their children are quietly doing when they are on the family PC, and make sure they are not happening upon, quite innocently often, some horrific Internet pornography sites that are very, very easy to trip on to. I urge parents in New Zealand to take more of an active lead in that respect.

This bill is a very good tidy-up of outdated legislation passed in 1993. Technology has moved on quite dramatically in the last 12 years—from what first were just publications, really. Films that went through the censor are now also part of the fast-changing global Internet. I believe we have got the measures in this bill right, and I would like to thank all those who contributed to it. The bill, sadly, is not supported by one Opposition party, probably because its members were not party or privy to what we saw when on the select committee. I believe that if, responsibly, they had been party to that process, they would never have held the rather peculiar views they subscribed to in their debate on the bill. I know that our community can feel that we have a pretty good grip on this now, and that those who are dealing in this material—not innocently but deliberately—will meet a penalty that is commensurate with penalties in the UK and Canada and that will put us on an equitable footing with the rest of the world. I was proud to be part of this process.

I have to say that New Zealand First was not represented on the Government Administration Committee but we have been following the bill, as best we are able, with quite some interest. I was a little bit concerned about the select committee’s report back, and the member who has just resumed her seat has highlighted that concern, even more. This bill came back to the House with a meek and mild penalty regime. It was only the Minister, in response to a letter or some urging from a Denise Ritchie of the Stop Demand Foundation, who brought in a Supplementary Order Paper that brought the penalties in line with those in Britain and Canada, which have had such penalties for some several years. Australia is currently examining its penalty regime. So New Zealand First was concerned that a bill went through the select committee process, and, clearly, the members on that committee did not take any notice or do any research into what the penalties were in other countries.

New Zealand First supports absolutely tougher penalties for people who want to trade in pornographic material—particularly, child pornography. We are in no doubt about that. We refer to such people as “people”, but I have another word for it, although I do not know whether it is parliamentary. It is something along the lines of “scumbags”, or something like that. I like to think I am too polite to refer generally to people in that way. But I do compliment the Minister on having the fortitude to say that the penalties recommended by the select committee were not good enough and his Supplementary Order Paper would bring them in line with Canada and Britain,

and with what Australia plans to do. We are talking about an international trade in pornography, and it is traded internationally; make no bones about it. Frankly, I would like to throw the book at these guys, and some of them I would not let out again, but that is just me.

I want to touch on a little concern that I had about the way the debate was handled. I know that ACT will oppose the third reading—

💬 Hon Dover Samuels: What for?

No doubt the honourable member will hear an ACT speaker and learn why. In fairness to ACT, Stephen Franks put forward six amendments in the Committee stage last night, and I looked at them as closely as I could, and I thought he made some very good points. In fairness to ACT, which I know will oppose the bill, although I cannot understand why, I think Stephen Franks wanted to tighten up on the legislation not change it. From what I have read, he did not want to change the intention of the bill, he wanted to tighten up the powers of the chief censor.

There was one issue that touched me, and I know that Stephen Franks will highlight this, or, at least, I hope he will. It relates to clause 4B(3): “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.” That is giving this guy—the chief censor, who I personally believe is not doing his job very well, to be honest—the power to look at decisions retrospectively. A video was produced a few years ago by, I think, Living Word. I had heard so much about it that I thought I would watch the thing. It is a good cure for insomnia! I struggled to keep awake. It is as boring as can be, but shows people in the background, as I recall, expressing their concerns about homosexuality, the spread of homosexuality, and the effect it has on people. I cannot recall it in detail, and I do not want to, but it revolves around a crowd of people, mainly homosexuals, saying how they were going to change the world, sell their cause, and so on. The censor banned that video—

💬 Sandra Goudie: It’s in New Zealand.

It is. The censor banned it, only to have the decision overturned by a higher authority. Now, under clause 4B(3) I think he can ban it again. I have a genuine concern that this could lead to the banning of people expressing views, particularly on moral issues. I agree with the Hon Phil Goff that we should be able to debate such things. I am talking about hate speech. I think it is ridiculous to have legislation banning hate speech, to be honest. It is one step from banning “think speech”. Some people have nasty thoughts about other people all the time, and we cannot change the rules to deal with that. But this seems to be an insidious way to open the door on that sort of thing.

I sat here last night in the Committee stage and listened to every speaker. The Hon Phil Goff made some very, very good points in his contribution, and I like Phil Goff; I think he makes good sense. But I was disappointed when he turned to Stephen Franks’ amendments, because he became somewhat hysterical—

💬 Judith Collins: Emotional.

He became emotional and hysterical, as he sometimes does. But my admiration is so great for the man that if I had a bottle of Valium with me I would give him a pill. I would not give it to many of those members opposite, but I do admire Phil Goff and I would give him a pill to calm him down, if I possibly could. But last night I did not have any pills with me and nobody could calm him down, and, effectively, he got stuck into Stephen Franks, quite unfairly, and Stephen Franks was not given the right of reply. Although I disagree with Stephen Franks on many of his views, I think he has made some sense here and should have had the right of reply to explain what he stands for and what it is all about. Clearly, he has put a lot of work into these amendments, and, as I say, they sat comfortably with me and my New Zealand First colleagues, in the short discussion I had with them to ask them whether we would support the amendments. We did in fact support them. It disappoints me, and I say this sincerely, that if we are going to have debates where somebody can raise something and then not give the member a right of reply after he or she is attacked, then we are not doing justice to ourselves, we are not doing justice to Parliament, and certainly we are not doing justice to New Zealanders. This is a hot topic in the minds of very many people.

I personally think the interpretation of the censorship legislation in this country is so loose and liberal that it is almost useless. From time to time the censor, in my view, does a good thing—about once in every hundred. I have read many of his reports. I would not have the gumption, the fortitude, or whatever, to read his reports out in this House. They describe so many disgusting and degrading actions that occur in films. I have seen one of the films—only one. I will never go to another. I was asked to go and have a look at it and see what it is about—

💬 Simon Power: This member has been on the wharves!

I have seen and heard things on the wharves, but they pale into insignificance compared with some of these movies that are coming through. I have not lived a sheltered life. I might look like that, but I have not lived a sheltered life. I have seen this world, the seamy side of it, in all places, but this stuff that we are allowing into this country, and the censor is allowing in, is absolutely disgusting. I am of the view that if we feed our bodies with lousy food, if we feed ourselves on hamburgers and chips every day and night, we all know that our bodies will suffer. I say to the honourable members that if we feed this sort of garbage that is going through the censor’s office, day after day—

💬 Hon Dover Samuels: Have you given this advice to Gerry Brownlee?

I give advice to anybody I can, but whether they listen, I do not know. It is not for lack of trying. If young people are subjected to this sort of garbage they turn out worse for wear. I have sincere regrets that Stephen Franks did not get the opportunity to talk to his amendments last night, which is only fair and democratic. As a result they were defeated. But I think he probably could have made a point whereby members opposite could have said they were worthwhile. They listened to Denise Ritchie. They could have listened to Stephen Franks with some sincerity, and I think this bill would have been better for it. Nevertheless, New Zealand First is going to support this bill because, in large part, it covers a very, very serious issue.

I rise for the ACT party in the third reading and last debate on this amendment to our censorship legislation. I have very much appreciated the comments made by Mr Peter Brown of New Zealand First, whom last night I noticed was following the debate. There were 15 calls, including three from Lindsay Tisch and from other members who sat on the Government Administration Committee. Peter Brown followed the debate very closely, because he was genuinely using it for a purpose for which it is not often used in this Chamber. He used the debate in the Committee stage to try to decide how to vote on a matter that is quite thorny.

Censorship is a thorny issue. We can all feel horror at the perversions that are made to seem normal or attractive. We can all wish that pornographers were much more heavily sanctioned socially, or that there was a way in which the community’s disgust could be converted into making life much harder for them. I remember years ago when my firm was working on the upgrading of the new trans-Pacific telephone cable. We had to go into the financing of that and do a whole lot of the background technical work. In the end we called the team of lawyers who worked on the funding of that billion-dollar project “team pornography”, because we found that the traffic that was expected to pay for the cable was typical of the traffic on the Internet. The experts told us that at that stage about 60 percent of the data load would be porn, which is very sad when we think of that flowering of human capacity and the enormous talent that is being crystallised on the Internet—and what it was being used for.

I thought we would be approaching this bill as a no-brainer, that in fact there would be a few ritual speeches and we would all vote for it, because it was updating our censorship law to take account of the Internet and to increase penalties in areas where we have found we needed them—for example, for people who may be liable for trading but not for possession, but who, nevertheless, have enormous quantities of that sort of material. If the law is to be there, it should be enforced. I thought we would get an explanation from the Government of just why it was passing new law, yet again, when it is not very good on enforcement. We have just had Time magazine labelling us as a “pervert’s paradise”. The truth is that it does not matter how many words we put into the law or what we talk about in this Chamber, if there is some kind of reluctance to enforce the law, then it is idle to be increasing penalties.

Mr Goff referred to the very good work being done by the Department of Internal Affairs in trying to track down child pornographers and people who harbour pornographic material, and he referred to it with his throbbing intensity of distaste for them. However, he did not explain why it was that when a list was supplied to the Australians by US customs from a very big sting in the US, the Australians went out and arrested some 200 people, but when the list showed that New Zealand participation had apparently been pro rata much the same, nothing happened here. We understand that the police had actually assembled and planned to do a raid, but still nothing happened. [Interruption]

So I was a bit stunned, I say to Mr Brown, to find that I was the victim of an attack from a Minister who would not explain what had happened in that respect or answer legitimate questions as to why Australia had discovered a whole lot of those people in its midst, named from a list supplied by the US, but we had apparently found none. And, of course, how will we find them now, once they have been warned of the scale of this bust and they know where the list came from?

To come back to the bill, I was persuaded by Mr Goff’s explanation that my proposed amendment to the meaning of the word “objectionable” was unnecessary. I was also persuaded by Mr Goff’s hysterical reaction that what I had identified as “the risks” in the other part of the bill was eminently justified, because he could have been just as reasonable and detailed in his explanation on that part as he was on the first amendment. Instead, he did not even try to deal with it.

My concern is that this bill is a Trojan Horse. The Government has bracketed and tied together some very sound ideas for improving enforcement capacity and penalties with a sneaky and very, very slippery change to the censor’s powers, to enable the censor to go back and take revenge for having been blocked in trying to block the Living Word videos. I read in the new sections 3A to 3D, proposed to be inserted into the Films, Videos, and Publications Classification Act by clause 4A of the bill, precisely the language that the censor tried to use against the Living Word videos. Mr Brown usefully summarised them as being about a pretty unpersuasive, boring group of talking heads in suits, saying why they thought homosexuality was bad for kids and bad for the country. The censor was stopped from banning those videos because the Court of Appeal correctly said that it would have been an intrusion on free speech. Whether or not we like it, people have a right to say that they do not like lifestyles and to try to persuade others not to adopt them. That is how cultures evolve. If it is offensive to some people to have their lifestyle described as despicable, degrading, dehumanised, or in all those other ways; that, too, is how societies evolve. The Catholic Church responded with rage to what it said was blasphemy when people first questioned some of its doctrines, and now those things are mainstream. It could happen only with free speech that was offensive to the majority.

What do I find in the new section 3A in clause 4A of the bill? I find a power to ban “highly offensive language”. Mr Goff said that it just means swearing and foul language. Well, I ask why he did not use those words. Why does the bill not say that, because it is defined in the new section 3A(3) as something that is “highly offensive to the public in general”. That is precisely why we have free speech. We must tolerate people who are offensive, and we should define the term so that it does relate to swearing and foul language. The bill should clearly state that it does not relate to the content. People are not entitled to take offence purely at content.

Section 3 of the current Act covers violence, torture, horror, and exploitation of children—the things that this community has decided censorship ought to cover and that we recognised and would have supported. Instead, we have this term, “highly offensive language”, which the censor can use to cover anything that he does not like. Worse still, the censor will now be able to ban stuff in the hands of people of a specified age—but the bill does not say what the age is—if it describes, depicts, or expresses physical conduct of a “demeaning nature”. That is in the new section 3B. Demeaning? Well, that would include laughing at fat people. Is that now able to be bannable? Section 3B(3)(b)(ii) goes on to include visual images of a person’s body “with any other contents of the publication” that is degrading or demeaning. Well, that could be anything. Then section 3B(4) goes further and states that the censor can do that, if the availability of the publication would cause people to be shocked or encourage them to regard themselves or others as demeaned. That is precisely what free speech is about.

Then I find that section 3D—although the select committee reported to this House that it did not want to interfere with the Court of Appeal’s decision on a gateway; in other words, the subject matter had to be about violence, torture, horror, or exploitation of children before the censor could start inflicting his own philosophy—excludes and reverses the Court of Appeal’s decision. This section states very clearly that the censor can apply those new tests without regard to section 3. Then, as Mr Brown pointed out, we find out further on, in clause 4B, that it is retrospective. It is retrospective, which is bad in principle. The select committee made no explanation as to why it should be able to go back, and Mr Goff made no attempt to tell us why he was so adamant that this was not intended to allow reversal of the decision on the Living Word video, or anything like it.

I am extremely sorry that we cannot vote for this bill, but we have to stand up for a principle. The Government deliberately brackets together a bill that has been toughened up with our support—a bill that we could have supported 80 or 90 percent of—tying it together with the agenda of that nasty little cabal that controls the Labour Party and wants to tell others how to live. This is a direct assault on freedom of speech. I was delighted that National, New Zealand First, the Greens, and ACT stood for principle yesterday and voted for amendments to try to restrict this bill back to what it should be about, which is child pornography, bestiality, and other disgusting material for censoring, and I was astonished that United Future saved this little plot of the Government’s.

The Green Party will be voting for the Films, Videos, and Publications Classification Amendment Bill. However, we think it could have been a much better bill. The increased penalties in the bill should have been targeted at those who are involved in child pornography—that is, the sentences should have been applied to child pornographers rather than to people who might possess other types of objectionable publications. This is why the Law Society suggested—and it could easily have been done—that we increase the penalties for trading, exhibiting, and possessing child pornography, not for possessing or trading all other types of objectionable publications. Now everyone is subject to the maximum sentences of 10 years in jail for circulating any type of objectionable material, and 5 years in jail for possession.

The public would have been confused by what they read this morning in some newspapers, which reported that the maximum penalty for possessing child pornography had been increased to 5 years’ imprisonment. In fact, there was no mention whatsoever of child pornography in the amendment put to the House last night. The 5-year maximum term applies to every single type of objectionable material, which is why the Greens voted against that amendment. In explaining our vote, we said we opposed the amendment because the House had not done as the Law Society suggested and separated out the higher-end penalty specifically for child pornography.

There has been an incredible increase in the maximum penalty for possessing any type of objectionable publication. This application to all objectionable publications could be dangerous, particularly in these days of the Internet. This is where I think many New Zealanders need to get very worried. I am not talking about child pornography; I am talking specifically about all the other objectionable things that circulate on the Internet—material with offensive language, pornography other than child pornography, and “how to” guides to doing anything that is currently illegal. The censor has declared, for example, that having a guide to cultivating marijuana is illegal.

Ordinary New Zealanders get a lot of different types of objectionable material through their email, through email attachments, accidental downloads from the Internet, or downloads by others who happen to live in the same house and use the same computer. We all know that teenagers are often overly inquisitive, and, as Steve Chadwick, the Labour promoter of this bill, has just said, it is very, very easy to trip over this sort of stuff. Under the amendment passed last night, a person can now be thrown into jail for 5 years for having that sort of material on his or her computer, whereas previously that person would have been eligible for a $2,000 fine. Admittedly, there now has to be a “reasonable cause to believe” that that person actually knew that the stuff was on his or her computer, but it might be hard for people to prove that they did not know. People process their emails and Internet downloads very quickly. They do not take into their brains all the contents, or catch on that some of the stuff they flick through very quickly could be defined as objectionable and thus illegal, or that they could be put in jail for 5 years because it is still sitting on their computer.

Who determines whether the material on one’s computer is objectionable? It is the police and the Department of Internal Affairs, in the main, particularly when dealing with what is on one’s computer. It is not the censorship authority, although one could bring it in if one was defending oneself against the police in court. We cannot always trust the police to get it right, and this is the same police force that, a couple of years ago, prosecuted Aucklander Bruce Hubbard for sending an email to the American Embassy accusing the American Government of “napalming babies” in Iraq. The police were absolutely clear that those two words—“napalming babies”—were objectionable and justified prosecution, although under pressure they later dropped the charges. This is the same police force that tried to censor Ahmed Zaoui, saying when he arrived here that he could not be allowed access to the media in case he got support for his cause. Admittedly, the police and the censorship authorities are generally much better than they were in the past. However, when constructing legislation and bringing in harsh penalties, we have to bear in mind how those penalties could be used by a more repressive Government in the future—a Government that gets the police force, the Department of Internal Affairs, and the censorship body to act more harshly.

In 1989 the Department of Internal Affairs put out a book called Censored: A Short History of Censorship in New Zealand, which details a long legacy of political censorship in this country. The Labour politicians who, in this legislation, are pushing through high maximum sentences for all objectionable material, including politically objectionable material, would do well to read this book and read about way the Labour Party has suffered from political censorship in the past. In the past, publications circulated by Labour politicians were censored. Walter Nash, who became a Prime Minister, was a left-wing book seller before he became a politician, and he had a lot of trouble with censored radical books. In the 1930s, socialists were jailed for possessing banned books. All sorts of films have been banned over the years, such as Marlon Brando’s The Wild One and Last Tango in Paris, and so on, and we might laugh about that today. In 1967 the censor judged the film Ulysses to be “an embarrassment for mixed company to view” and ordered that audiences be segregated into male and female. In 1972 Germaine Greer was convicted for using the word “bullshit”.

In reality, Governments at various times like to use political scares to make people fearful, in order to get them to support the Government. There have been numerous scares in New Zealand over the years. There were scares about “Red Fed” unionists early last century, scares about the Labour Party destroying the country in the 1920s and 1930s, scares about socialists and communists, and, most recently, there have been scares about Islamic extremists. In all these scares, censorship has been applied to the targets. Currently in Britain the biggest case concerns an Islamic extremist called Abu Hamza al-Masri, who has been charged with possessing certain documents, videotapes, and audiotapes, and may be subject to penalties. The views he expresses in those documents, videotapes, etc. are often distasteful. Some of them are what we might call “hate speech”. The Minister says that hate speech will be dealt with further down the track, but the reality is that if this legislation later includes hate speech, that offence will be covered under the harsh new penalties of 5 and 10 years’ imprisonment, so it is part of this debate. We could get the situation where, if Destiny New Zealand circulates certain emails to its members, hundreds of people could be subject to 5 years in jail for possessing objectionable publications. That is a possibility.

I put forward an amendment yesterday to try to make the definition of child pornography in the bill more consistent. Clause 4, “Meaning of objectionable”, specifies images of “nude or partially nude” children that are “reasonably capable of being regarded as sexual in nature.” That is too broad for us to go along with, because it could be used against people who simply possess naked images. It is very hard, using that definition, to distinguish between what is truly child pornography and what is not. The solution I offered, which was supported by a number of parties in the House but unfortunately not by the Government, was the obvious one of just using a definition from elsewhere in the bill. The definition in new section 145A, inserted by clause 32, which talks about extraterritorial jurisdiction for child pornography offences is a much better one. It states: “ ‘child pornography’ means—(a) representation, by any means, of a person who is or appears to be under 18 years of age engaged in real or simulated explicit sexual activities; or (b) a representation of the sexual parts of a person of that kind for primarily sexual purposes”.

Why not be consistent in this respect? Why do we have to create a problem whereby we might ban Germaine Greer’s book The Boy because it has a lot of images of boys? She says not only that they are artistic but also that she gains pleasure from looking at them, but she is not talking about the kind of pleasure of someone who is involved in child pornography. We do not want to get into a situation where we are overly censoring simply naked images. That is why I put forward the amendment. As I said at the beginning of my speech, the Green Party supports this bill overall, and we will be voting for its third reading. But we will continue to be concerned about, and to argue against, the censorship implications of the bill beyond the question of child pornography.

The previous speaker mentioned that socialists had been imprisoned for what they said and thought. Although I am not an advocate for censorship, I am now starting to warm to the idea.

The problem of pornography and child pornography in this country is one of huge concern, and this bill addresses a number of things. The Department of Internal Affairs caught 103 men trading in child pornography between 1997 and January 2003 in Operation Landslide, but it is a long and drawn-out process and a difficult one for the department. Investigators have to go into chat rooms. When offered child pornography they can obtain a warrant to get the personal details provided to the Internet service provider. They then trace the address of the person who offered the material. The investigators then have to obtain another warrant to visit the offender’s address and seize his or her computer and any other evidence that is deemed necessary. Of course, New Zealand law does not allow the police to execute search warrants on people who simply visit a website.

The point is that it is a very long, drawn-out process and up until now the penalties have not been very substantial at all. On 14 January of this year it was reported that nearly half of the 185 convicted child-pornography users profiled in a study by the department had regular access to children. That is hugely worrying. Those offenders aged between 15 and 20 were the single largest demographic group and represented 25 percent of all child-pornography users. That should be a big warning sign for all of us.

On 11 March it was reported that an Auckland man was caught trading, advertising, and collecting images that included the rape of 3-year-olds, toddlers being tortured, and sex acts on babies. He did not even get a prison term. We clearly have a long way to go, and this legislation is but one of a number of steps that we have to pursue to try to stem the tide of pornography, which is an abuse on individuals, and child pornography, which is the worst of all in many ways.

I take issue with some of the matters raised by the ACT member. Highly offensive language is targeted in this bill. There is a distinction between highly offensive language and highly offensive ideas. They are not the same thing. A message can be conveyed without certain types of language being used and without the message necessarily being watered down. Furthermore, it is not an out and out restriction; it is simply a cap. Highly offensive language is not subject to an outright censorship, but to a restriction—a curb—for those under the age of 18. So that creates a very reasonable balance with the main aims and thrusts of this bill. I think that ACT’s objection is a Trojan Horse that hides behind the facade of freedom of expression, at the expense of the protection of our most vulnerable. I simply do not buy it.

Under this legislation, people producing, trading in, or distributing child pornography will face up to 10 years in jail—a tenfold increase on the present penalties—and that has to be welcomed. The bill also extends the offences of trading and distribution to cover all forms of distribution, whether or not commercial gain is involved. There will also be new offences of possession with knowledge, to apply where a person has reasonable cause to believe that a publication is objectionable.

It is sad that such a bill needs to be passed by the House, but it must be welcomed. It is good to see that nearly all parties in this House have put party political nonsense aside in order to be constructive and to work together. It is good to see that when matters of law and order are concerned, both National and Labour have sought to put aside their differences and put the interests of the public ahead. I also acknowledge the support of New Zealand First and the Greens. It is a tragedy that there was not a unanimous decision by all the parties of this House to pass the bill. It is a tragedy that ACT could not see beyond its own strange, odd, libertarian nonsense and put the interests of children and the most vulnerable people in our society ahead of its own nauseating, sanctimonious ideologies. United Future supports this bill and commends it to the House.

I am very, very pleased to take a brief call on the third reading of the Films, Videos, and Publications Classification Amendment Bill. I must express how impressed I am with the quality of the debate that has occurred this evening and with all the various views that have been shared about these important matters regarding censorship and pornography, and the greater penalties for offences that are provided for in the bill.

I planned to take a longer call because I could refer to my own problems with censorship in the past. I, too, was in a film once—a legitimate one—that ended up on television. It was censored and that delayed the programme going to air for a year, because apparently the subject matter was contrary to the public’s good taste. The subject matter was about a day in the life of a transsexual and a transvestite. It took a year for the chief of television of the day—and this was in the 1980s—to get it to air.

💬 Sandra Goudie: Get over it!

Exactly! Get over it. It did go to air and received five nominations for the 1987 film and television awards, including, I humbly say, one nomination for myself.

However, I do not want to trivialise the serious nature of this bill. I congratulate the members of the House who, by majority at least, are supporting the bill. I appreciate and respect the ACT party’s view. They are entitled to it. We may not agree with it, and obviously we do not on this particular matter, but nevertheless Mr Franks made himself clear. It is just that he left us seeing it as clearly as mud sometimes. I commend the bill to the House and hope that it proceeds speedily through the rest of its course.

I find myself in the rare position of agreeing with most of the speakers most of the time this evening. That is a shock to the system.

💬 Hon Dover Samuels: There must be something wrong.

It is a shock to the system and, as Mr Samuels said, there must be something wrong. There is not very much in the bill that I would like to object to, except for the fact that United Future should have supported the ACT amendments last night because they were sensible amendments. Everyone else would have sung United Future’s praises and understood why that party is in Parliament, because we have no other idea what it is doing here. This would have been the opportunity for United Future members to stand up for a bit of common sense. But they did not—

💬 Darren Hughes: Great! MP Judith Collins on moral issues!

JUDITH COLLINS:—and on a moral issue, too. It was absolutely a moral issue. But they did not, and it was all to do with United Future’s little rules. But a lot of life is not about rules; it is about getting on, doing the job, and doing the right thing.

I was a bit shocked that I kept agreeing with Mr Locke—until he got on to the censorship issue about the reds under the bed, when I thought that maybe censorship was OK, after all. But, never mind! I will not discuss that because I am generally quite opposed to censorship, except in respect of things like child pornography and images of the degradation of people, rape, and things like that. I am personally very concerned about the censorship of, let me say, impure words, because I am frankly very happy we are still allowed to say impure words. It is sometimes a lot better to swear at someone than it is to hit the person. For a lot of people, who have not gone through university and learnt fancy words, that is how people communicate, and it should be legitimate. If we cannot have a good swear in a movie, that cuts out just about any movie that is worthwhile watching—

💬 Darren Hughes: This is the family spokeswoman!

JUDITH COLLINS:—in terms of the 1970s. Yes. I tell the member that I would rather people had the freedom to say what they liked than be hamstrung by silly laws written by people who do not like what others say. That is nothing to do with them.

💬 Darren Hughes: What about Disney movies?

I stopped watching Disney movies about 30 years ago. Maybe Mr Hughes still watches Disney movies, but I have moved on.

There is one reason why I am supporting this bill. It is not about the silly hate-speech nonsense the Government is trying to push through; it is because of the increase of penalties relating to child pornography. If there is one offence that every single person in this House, I hope, thinks is revolting, disgusting, and beyond thought, it is child pornography or child sex acts. I am sure we all agree about that. No doubt, that is why everyone in this House is shocked to see that we have under-18-year-olds prostituting themselves in central Christchurch, in Manurewa, and in other places like that, yet nothing happens about enforcement.

I take the good point that Mr Alexander made about the lack of penalties being imposed on offenders in cases of child pornography. It is all very well for us to stand up here and to praise the wonderful work of the Department of Internal Affairs in its picking up of those perverts—frankly, I think: “Good on the department!” for doing it—but such people have to be prosecuted and they have to be penalised in some way.

I am particularly concerned, from what Mr Alexander said—and I know it is true—about the children of 15 to 17 years who are accessing this stuff. These are young people with very young minds at very impressionable ages, and what they might think of doing when they say: “Let’s have a look to see what it is.”, can very easily become what is quite clearly an addiction like any other sort of addiction, except that it is an addiction to views of children being abused. I think that is pretty awful.

When we think back to the days when we had the first bill of this sort, back in 1993, we remember that we really did not have total access to the Internet for everybody in the house. Now many homes have more than one computer—let alone just one—because computers have got a lot cheaper over the years as technology has improved. There is also access through libraries, schools, and workplaces, and that is one of the problems.

A concern I have in relation to this bill, of course, is that of unwitting possession, which Mr Franks dealt with again tonight: the situation where the sorts of pornography we are talking about can be put on to files that we, as people who may not be experts in computers, can download by mistake. We have often seen, and many of us will have found, the cookies that are put on to computer websites. One could end up in a particular website, and the next thing that happens is that something flashes up on-screen. Normally it is trying to sell some sort of male health-issue drug—which is not something that I need, I can tell this House. That is the sort of thing that can happen, and I am very concerned that those sorts of things can end up—

💬 Hon Mark Burton: Far too much information.

Did Mr Burton want to make a comment about that? He wanted to know all about it. Well, I am sure that he can get someone to look at it; I know Dr Paul Hutchison, as a doctor, will be happy to help.

On a more serious matter, it is of concern that the Government bowed only to the pressure brought on by Denise Ritchie and End Child Prostitution, Child Pornography, Child Sex Tourism and Trafficking in Children for Sexual Purposes—and, I should hasten to add, by the work of Deborah Coddington, the ACT MP; as the House should know, I do not often give praise—which brought to the Government’s attention that it would be soft on this sort of crime again if it said that 2 years was enough as the maximum penalty for possession.

It is all very well for us to hear, after a lot of huffing and puffing from the Ministers, that we will now be tough and have the same penalties as the UK and Canada. Well, why should New Zealand not lead the world? Is this not something we could lead the world in? Could we not be a little tougher and, at the same time, could we not be a little more sensible—as Mr Franks urged this House to be in relation to some of the other parts of the bill—as to how we could make this work better in practice? I see Mr Alexander is impressed with those comments. There is no point in getting ourselves excited and pushing this amendment bill through, and then having to come back into the House after the first court case when we realise that in fact it has not quite worked out the way we hoped it would.

Perhaps I can just ask the House to think about the work of the censors, the Internal Affairs people, and the police—the people who have to work with this child pornography. I wonder how often anyone ever looks at those people and asks how it is affecting them. Do they, in fact, get some sort of opportunity to do something about whatever goes into their heads? I am very concerned that those people are working with, living with, and looking at extremely abusive portrayals. I am really quite concerned as to what that does to them over a long period of time. Certainly, and the point has been properly made by my colleague Sandra Goudie, it can desensitise people to pornography.

That is something we should be concerned about, because I cannot for the life of me imagine why anyone would want to be the Chief Censor—unless they could not get another job!—the Deputy Chief Censor, or any other position to do with this issue, unless they in fact have a passion towards stopping the sort of pornography we are talking about. I do not know if that is true in the case of the current incumbents, but I am sure it is.

In terms of the penalties and of what happens to the people who trade in pornography, I say that the penalties are clearly not enough; otherwise, people would not keep on doing it. Clearly, there has not been a deterrent effect; otherwise, it would stop overnight. The trade is not going to stop until people involved in it can see that the chances of getting caught are really, really high—just as high as speeding, not paying taxes on time, or those sorts of things. The penalty has to be really high; it has to be public; and it has to stick.

It really concerns me that certainly the Australian experiences, and the American experiences, tend to suggest that the people who trade in child pornography are from all sectors of the community—the fact that they might swear has nothing to do with it, because I am sure they do not—from one end of the spectrum to the other. I really believe there is more likely to be concern because of people’s ease of access to those sites. The concern is about the mentality of people who think they can enjoy—if there can be such a word in relation to this sort of perversion—looking at a child being abused. How could anyone do that? Of course, we are talking about people who are often control freaks, people who have very secret lives, and people who are in positions of power. Those are the sorts of people who are likely not to get prosecuted, because they are often a lot cleverer than they should be.

I take the opportunity to stand alongside my colleagues in support of the Films, Videos, and Publications Classification Amendment Bill. In doing so, I suppose I acknowledge the most important reforms that the bill provides against the alarming growth in the trade of child pornography via the Internet. I now have some confidence that for those of us who have computers at home and who have children there are some protections against, in particular, those who distribute child pornography, in the proposed prison sentences the bill provides.

To that end, I also acknowledge the chairperson of the Government Administration Committee for steering its members to the conclusion of this bill. Finally, I say that I support it.

National members are pleased to support the Films, Videos, and Publications Classification Amendment Bill, because our children are our future, and it is our job to protect and support them as they grow in order to ensure that they become well-adjusted, contributing adults in our many communities. Our children should not be subjected to the abuse that produces child pornography, or vulnerable to the availability of child pornography.

It is a tragedy that approximately 20 percent of those viewing child pornography are aged between 14 and 18 years of age, and these statistics came from the Department of Internal Affairs. End Child Prostitution, Child Pornography, Child Sex Tourism and Trafficking in Children for Sexual Purposes (ECPAT New Zealand) is also very concerned about those statistics, and it gave a substantial submission to the bill. While supporting much of the bill, ECPAT New Zealand was concerned that home detention should not have a presumption in favour of the offender. In my view, home detention is the soft option. If people do the crime, then they should do the time. In fact, I believe that home detention should be scrapped.

However, the strengthening of the penalties in this bill is welcomed. One can only hope that they are enough to stem the tide of an activity that we can only guess at the scale or size of. We have to recognise the changes in technology that provide for the ready availability of pornography throughout the world, and recent advances in mobile phones add to the problems—even more so when mobile phones are becoming the norm not just for teenagers but also for more and more primary school children.

Television advertising is using children acting as adults to sell this new technology, and that means the task of protection is even more problematic. My understanding is that further legislation is to be introduced to address the issue of covert filming, and that has been exacerbated by the continual advancement of mobile phone technology. If child pornography has risen fifteenfold since 1988, with the antiquated technology of those times, it does not take much to guess that accessibility is now likely to be barely controllable, and that was illustrated by Stephen Franks. So I wonder if there has been any study on whether there is any correlation between the advancement of technology and the increase in child abuse. I ask the question, because there is a strong link between viewers of child pornography and child abusers.

My learned colleague Richard Worth expounded on US statistics. Of the 2,000 men arrested in the US for possessing child pornography, 35 percent were also child abusers. So with greater accessibility—members should do the maths. I have no problem with labelling publications with an age restriction, and while parents are the first line of defence, with this bill we are making sure that we further protect our children and that we adopt a range of methods by which we do that. We also deal to the perpetrators of crime against our children by increasing the penalties in this bill, and I applaud that. We just have to make sure that we use those penalties and we get into more enforcement. But I have no doubt that given the fine line between the protection of our children and young folk from becoming victims of pornography, and the right to freedom of expression, the definition of “objectionable”, as outlined in clause 4, will be tested in the courts.

Amendments to address concerns for a number of matters were lost. I have no doubt that they, too, will be tested in the courts in due course, particularly in relation to freedom of speech. Censorship is a reasonable and justified limitation on the freedom of expression, when it aims to protect children and young people from any harm inflicted by the publication and display of child pornography. However, censorship of any kind is a limitation on the right to freedom of speech. While the bill correctly attempts to address the pervasive problem of child pornography, the test established in clause 4 is both broad enough and vague enough to encompass more than just child pornography. The definition of “offensive language” encompasses a range of possible usages. Offensive language could also include insulting language.

Censorship on the basis that a publication is insulting to a person, or group of persons, is very broad indeed. While the bill actively aims to strike the right balance between protection and freedom of expression, it is questionable whether that has been achieved. It just so happens that tonight was the occasion of an excellent presentation by the New Zealand Film Commission. Creative genius, with which New Zealand is greatly blessed, does, I am sure, value freedom of expression. New Zealand is a pluralistic and democratic society, and as mentioned, the freedom to express opinions and ideas is central to the conception in such a society. I shall read members an extract from Handyside v United Kingdom where the European Court of Human Rights clearly stated: “Freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to”—some of its articles—“it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of difference, but also to those that offend, shock, or disturb the State or any sector of the population.” That underscores and reinforces the concerns of Stephen Franks. The European Court stated further: “Such are the demands of that pluralism, tolerance and broadmindedness, without which there is no democratic society.”

So this bill has some very serious unintended consequences and that means, amongst other things, that “every formality, condition, restriction or penalty imposed in this sphere must be proportionate to the legitimate aim pursued.” I reiterate that I can see that there will be recourse to the courts to test some of the definitions that are evidenced in this bill.

The second amendment that was proposed was designed to protect freedom of speech. These are the amendments put forward last night that were overturned. It was stated that contentious propositions are often highly offensive to the public in general. The amendment makes it plain that it is the language that must be offensive, not the argument. As I have just read, it is ideas that challenge us and help to shape and direct our societies over time. It would be a tragedy, indeed, to see any restriction on our freedom of speech or freedom of expression.

One amendment in particular that I would like to read is the fourth amendment. It is designed to ensure that the censor cannot use these amendments to go back and reinstate the disgraceful decision on the Living Word video, by claiming that it would upset teenagers who are wondering whether they are gay. I am concerned about the retrospectivity of the particular clause that gives the censor the unbridled power to do that. That should be a major concern to us all, and I cannot understand why that retrospectivity was continued in the bill. I did ask the Minister to take a call to give an explanation, but it was not forthcoming. So there is a concern around that.

There was an amendment designed to ensure that freedom of speech for ordinary people is not put at risk in the hands of a censor with his or her own political or social agenda, claiming to protect a small, disturbed, overly sensitive group—for example, those raised with rigid religious views, or indeed, minority groups such as the homosexual community. This concern has been expressed, and while we are supporting the bill and its intention, which I am sure everybody commends, there are some serious concerns. I have no doubt that those concerns will be tested over time in the courts.

With the exception of the ACT party at the fringes of politics, all parties in this Parliament will be supporting this bill receiving its third reading tonight. There have been many speakers from across the political divide, which shows that we can come together on important matters like this. The bill increases penalties tenfold, improves the abilities of the Department of Internal Affairs to complete its investigations—I note that it has an almost 100 percent success record—and also moves the law in this area into the 21st century, particularly around issues concerning the Internet, where most images of children are, unfortunately, traded very cheaply and very quickly. The law we currently have is from 1993. Mr Goff’s law brings that up to 2005 and I am pleased to support the comments that have been made by every party in Parliament, with the exception of ACT, which for some reason has not stood with the consensus on this matter and has put itself at a very peculiar fringe of New Zealand politics.