Crimes (Intimate Covert Filming) Amendment Bill

I move, That the Crimes (Intimate Covert Filming) Amendment Bill be now read a second time. This bill was introduced in April of last year to address the increased incidence of voyeuristic covert filming. The issue of covert filming was brought to the Government’s attention by the good work of the Government Administration Committee’s 2003 inquiry into the Films, Videos, and Publications Classification Act, and related matters, which highlighted the inadequacy of legal sanctions against such behaviour. The Government referred that issue to the Law Commission for its consideration. The Law Commission concluded that existing laws do not provide an effective response to this activity. The Government’s ability to move to address intimate covert filming is partly due to the Law Commission’s comprehensive study paper on the matter. I want to acknowledge the good work of the Law Commission, as well.

This bill makes it an offence to make surreptitious visual recordings of other people in intimate circumstances without their knowledge or consent. That is a modern form of peeping, and it has been made worse by technology such as cellphone cameras and computers, which make it easier to both record and then distribute voyeuristic images. Although, in general, covert filming has a sexual element, that is not always the case. The real issue is that it constitutes an invasion of personal privacy. Intimate covert filming objectifies individuals and can be seen as an affront to the dignity and autonomy of an individual. The ability to distribute images of that nature without the individual’s consent, especially on the Internet, is of particular concern.

The incidence of intimate covert filming is increasing worldwide. Even in New Zealand there have been instances where miniature cameras and cellphone cameras have been used to record images of women and children in states of undress. Neither the activity of intimate covert filming nor the subsequent distribution of those recorded images is explicitly prohibited in New Zealand. Intimate covert filming can cause real harm, such as psychological symptoms and disorders, not merely embarrassment. I think it is important that we note that.

Some examples of this personally intrusive activity include the discovery of images of two teenage girls getting changed before and after swimming and getting ready for bed, which were taken by a video camera hidden in their bedroom. Another example is that of a technician who, in the course of his work for a theatre group, installed a hidden camera in the dressing room of female performers. Those types of images are not necessarily subject to censorship laws as, in many circumstances, they may not of themselves meet the test for prohibition under those laws. The real concern with those images is the invasion of the privacy of the person or persons depicted and the subsequent use of the visual record of that invasion of privacy.

The law should provide a response to people who breach another person’s privacy in such a personal way. That is why these new offences are contained within the criminal law to reflect the public abhorrence associated with this type of behaviour. The creation of a criminal offence related to this conduct in New Zealand is consistent with action taken in a number of other jurisdictions. The United States and the United Kingdom have laws in place, with Canada and some Australian states also considering similar legislation.

The Government Administration Committee has recommended a number of useful improvements to the bill, and I thank the committee for its very good work. As reported back from the committee, the bill maintains the definition of intimate visual recording as a visual recording made without the knowledge or consent of the person who is the subject of the recording; and the recording is of a person who is in a place which, in the circumstances, would reasonably be expected to provide privacy; and that person is naked or has sexual parts of his or her body exposed, partially exposed, or clad solely in undergarments; or is engaged in an intimate sexual activity, or engaged in showering, toileting, or other personal bodily activity that involves dressing or undressing. The definition also includes recording beneath or under a person’s clothing to deal with instances such as “up-skirt” filming. The bill maintains the new criminal offences that relate to making an intimate visual recording, possessing an intimate visual recording, publishing, importing, exporting, or selling an intimate visual recording. The bill maintains the 3-year maximum term of imprisonment for these offences other than the simple possession offence, which will attract a penalty of imprisonment not exceeding 1 year.

The select committee carefully considered the concept of distribution as introduced by the bill and has recommended amendments to refine the concept. The amendments make it clear that people who provide access to an intimate visual recording either by actively sending material to another person or allowing his or her computer to be used as a virtual library, will be caught by the Act’s offence provisions. On the other hand, the amendments also make sure that people are not liable when they unintentionally or unknowingly provide access to an intimate visual recording. Internet service providers, for example, who provide access to the Internet will not be liable simply because their service is used by others to provide access to an intimate visual recording.

The committee also recommends that the offences in the bill should be broad enough to ensure that live digital streaming technology is caught under the intimate covert filming provisions. This is, I think, an important and very helpful improvement to the bill, and I certainly support it. The provision of a maximum 3-year penalty sends a clear message that this activity is entirely unacceptable. The bill enables the police to use their search and seizure powers to immediately investigate these new criminal offences, including in those circumstances where images are discovered on the Internet. In addition, the bill provides that upon conviction the court will have the power to order the destruction of the image or recording and the forfeiture of equipment used in the commission of the offence to the Crown.

Specific agencies such as police undertaking video surveillance will be exempt from criminal liability under the bill where an intimate visual recording is made, possessed, or published for the purpose of, or in the course of, carrying out their law enforcement, safety, or security functions. The exemptions will not apply, however, to anything done in bad faith or without reasonable cause. Amendments proposed by the select committee ensure that people who supply appropriate authorities with covertly filmed material for the purpose of lawful investigation are not subject to the publishing offence provisions.

The Crimes (Intimate Covert Filming) Amendment Bill will provide victims of covert filming with an effective response. Convictions and penalties received under the new offence provisions should have a deterrent effect on this activity in the future. I look forward to these measures taking effect upon the passage of the bill, and I commend the bill to the House.

I rise in support of the Crimes (Intimate Covert Filming) Amendment Bill, and do so on a range of grounds, but mostly, of course, on the grounds of human dignity and the preservation thereof.

I congratulate the Government Administration Committee on the work it did. Although this bill seems to be very simple and sensible legislation to arrive at, let me share with members some of the difficulties the committee had to grapple with as it went through the process. First of all, I do not think too many people out there would suggest that filming somebody in a state of undress, in a sexually intimate position, or in a toiletry-type situation is something that society would accept. But then, of course, people can inadvertently get caught in circumstances sometimes. For instance, somebody may be out on the side of the road videoing a scenic landscape, or whatever, and a young couple enjoying the night, as it were, may inadvertently be caught in that circumstance. The bottom line is that if the person taking the video knowingly distributes that material, then we need to be able to send him or her a message that that behaviour is not acceptable.

Further, there is the whole issue of what happens when somebody has captured an intimate image in the way the Minister described, after stumbling upon it, as it were, by accident—going through one’s Internet, or otherwise. How do those persons alert the authorities about the material they have without, in fact, themselves becoming inadvertently caught by the law? The committee had to find a way forward on that. We had a major difficulty, I guess, in getting the right balance between what most people in society would consider to be unsavoury behaviour and legitimate use of the material, in terms of apprehending, tracking down, and suchlike, those who might be distributing this stuff.

A further complication was that this bill does not just amend the Crimes Act of 1961, which, of course, is the principal Act; it also has influence over a range of other legislation—for example, the Summary Offences Act, the Crimes Act, the Harassment Act, the Human Rights Act, the Employment Relations Act, the Privacy Act, and the Films, Videos, and Publications Classification Act. So the committee had a major difficulty in terms of getting the right balance on how to deal with all of that and come out with what is—I agree with the Minister—a fine piece of work from the committee. I guess the problem we had, overall, was in actually defining covert filming, and we all have a view of the world on what that is. I think the Minister outlined that definition quite reasonably in his opening comments: surreptitious visual recordings of other persons in intimate circumstances without their knowledge or consent, and in circumstances in which those persons would reasonably expect to be private. Given that this is a broad issue, that is probably the simplest way to put brackets around what the committee was trying to achieve.

The other issue that came out of this matter that was quite interesting but also difficult to deal with, was the whole issue of the scope of intimate visual recording. This is in an area of technology that is moving at such a pace that if members know what 2006 technology is all about then they are already out of date, because the next wave is about to descend upon us. That is the reason, I guess, that this bill came about in the first place. The 1961 Act never envisaged some of the equipment that is now available, such as cellphones with cameras and the use of the Internet, whereby one can beam images around the world simultaneously, described as “streaming”, and where one does not necessarily record, save, or store images in the way one would normally consider in terms of a photograph in hard copy or digital form. One actually films a subject and emails it simultaneously to whoever one may be trying to send that information to.

The next issue was to try to arrive at a sensible penalty or sentence for the offence this bill addresses. The committee spent some time on that matter. It looked at a range of similar offences and at international examples, and decided that 3 years’ jail was probably a strong enough message. Some on the committee thought it was not; others thought it was a bit tough. But that is the nature of Parliament. However, that was the committee’s decision, and the committee reported back its findings to the Parliament on 1 August.

I also say that the whole topic of films, videos, publications, and classification was a vexed one on a number of issues, not just around the amendments to the Crimes Act in this bill—the Crimes (Intimate Covert Filming) Amendment Bill—but also in a range of other areas. One of the ongoing issues that is still live is hate speech. In that regard, the inquiry within the select committee is still live. The new committee, which I chair, has decided to continue with it, because two-thirds of the way through the parliamentary process people indicated they wanted to make submissions. Some had submitted; others had not. It would not have been in the best interests of good parliamentary process to decide not to continue with that issue just because the committee was a new one in a new Parliament. So that matter is still ongoing, and it will be interesting to see whether the Government’s view on it has finally been arrived at. Obviously, National has not changed its view on it one iota.

That is probably about enough from me. National supports this legislation. Clearly it is overdue. The Government was right to employ the luminaries it did to reach its conclusions. The Law Commission and, of course, the Law Society, among others, submitted to the select committee. At the end of the day I think this bill achieves a reasonable balance on a very difficult issue.

I wish to speak to the second reading of the Crimes (Intimate Covert Filming) Amendment Bill. In my capacity as the previous chair of the Government Administration Committee, I thank the present chair for his speech and for his support for the bill, and for the good work that the committee has done on this bill, as we have seen, for a long time. The issue came to our attention through the committee’s inquiry into the Films, Videos and Publications Classification Act. The committee did very good work on that inquiry, and its report was a very, very good report. One of the things that the committee found, when listening to the submitters, was that there was a problem around the use of technology and the fact that people could surreptitiously take pictures with their cameras. I know that there are signs on the dressing room walls at my local swimming pool, advising that we should beware of people possibly taking photographs with their cameras, and should watch out for such things. We are now making a law about that.

We have talked about the select committee input and the Law Commission input. But a lot of the information came from the submission of Bill Hastings, the chief censor, who highlighted the fact that there was no law around the issue. His suggestions, too, were that we look at international law and at what people are doing in Australia. The select committee did that. It did a comparison with other countries, just to see how they are handling this problem that has come from the use of the new technology. I thank Bill Hastings for his vigilance in his job, and also for highlighting the problem to the committee and the fact that there were no laws around it. He brought some photographs and videos to the committee, which showed us the sort of thing that was happening in a dressing room at a boys’ school, for instance. Lindsay Tisch was on the committee at that time.

💬 Lindsay Tisch: A very good committee.

It was a very good committee, as Mr Tisch has said. We dealt with those problems. Often many of them had been put in the too-hard basket, such as whether something was pornography and how to make a rule about that.

As Mr Ardern has just pointed out, if we solve one problem we create another. It is very, very hard to reach a balance. But as the Minister has also pointed out, the issue is not just about perverted filming and looking at the sexual element. It is also a matter of personal privacy. I can think of cases where people have taken their children to a park and someone has taken photographs of them, inadvertently, while they were playing. Many people felt that that was an invasion of their privacy.

There are a number of people to thank, including the members of the public who came to the select committee and made submissions. We often forget, in select committees, how important a select committee is, and what an opportunity it is for people to have their say. Both in the inquiry and in the submissions on this bill, people have come along and told us of their experiences and about the things that have happened to them. That has enabled us to improve our laws around censorship and the use of technology.

The committee has obviously looked at similar legislation in the United States, in the United Kingdom, in Canada, and in Australia. That has informed the committee when it was working on the amendments that have been made to this particular bill.

As we have seen, it is not only a crime to take some of these photographs, but perhaps what is even worse is when people pass them on to others. The distribution of the recorded images is expressly prohibited in New Zealand. Both making those images and distributing them are problems.

One of the things I note about the bill is that there is a provision for a maximum 3-year penalty. That is very important, as it makes it clear to people that taking those types of photographs, reproducing the images, and passing them on are crimes, and that there is a 3-year penalty. It is not something to be regarded lightly, because the person is offending against and making victims of people—both those who receive the images and those who are the victims of the photographs themselves. There are exemptions, of course, that are necessary for the police to undertake video surveillance, and those have been put into the bill.

I note also that Mr Ardern talked about hate speech, and of course that issue has arisen in certain current events, such as some cartoons that have been highlighted in the news recently. Those events have also enabled the committee to look at other areas in regard to human rights and the ability of people to take complaints to the Human Rights Commission. I wish the committee well in its consideration of the hate speech issue, as well. It is not just a matter of the hate speech itself but of people’s ability even to take a complaint about it—whether or not the complaint is upheld. As we have seen, it is possible to take complaints around issues concerning pornography. It is also possible to take complaints around issues concerning race and colour, but not about religion. People say that that is something people can choose, but in many cases people may not be able to do so.

Members have talked about the Government Administration Committee tonight, and about the scope of that committee. It has a very wide range of portfolios to deal with, and the people who are on that committee are certainly never bored, because there is such a wide range of issues to deal with. But there are some very challenging issues. I think it is one committee where members work very well together. It is not just a matter of party politics; it is about what is important to the people of New Zealand. What is important, particularly in relation to this bill, is children, who are most likely to be the victims of the activity. The Government Administration Committee is a committee that focuses on good law and the best way to make good law. I thank the committee for the good work it has done.

The Crimes (Intimate Covert Filming) Amendment Bill is a place where the combination of new technology and salacious behaviour can be controlled. Technology has supercharged the role of the peeping Tom. Right now our laws protect us from Tom’s eyes only, but armed with cellphones, cameras, and videos Tom can present his eyeful to the world, and we have no legislation to stop him. The convergence of technology, the melting pot of telecommunications, computers, and the Internet, can turn Tom into something new and fabulous. Without any great talent or training, and definitely with no permission, he can be the peeper, the photographer, and the publisher.

Overseas, and particularly in the US, intimate covert filming has become extremely popular, and that has triggered specific legislation against it there. But there have been incidents of that sort of behaviour in New Zealand. We have heard some examples already tonight about teenagers—boys and girls—dressing and undressing, and about a case from my home town of Christchurch where a technician working in the local operatic society installed a hidden camera in the dressing room of the leading ladies. That sort of behaviour is not acceptable to Kiwis. We believe that all people have the right to privacy when they are minding their own business—whether naked or semi-clothed—in a place they can reasonably expect to be private. Everyday activities, like dressing and showering, are considered private; they are not activities that people should peek at or take photographs of. Furthermore, it is not reasonable to expect that one might find oneself, without making a deliberate decision, naked or semi-clothed in images that are being circulated locally in photos or on a cellphone camera, or even internationally on an Internet site.

The bill is designed to update legislation in order to close a loophole created by those new technologies, and it amends the Crimes Act 1961. It includes the offences of making an intimate visual recording, possessing an intimate visual recording, and publishing, importing, exporting, or selling an intimate visual recording. That intimate visual recording can be a photograph, a videotape, or a digital image. An intimate visual recording is a recording that is taken without the knowledge or consent of the subject, when he or she is either naked, semi-clothed, or engaged in sexual activity, or when the recording is taken under or beneath a person’s clothing. At first glance, the idea of taking photos beneath or through someone’s clothing seems to be a little obscure, but that was before I read about shoe cameras, walking-stick videos, “up-skirt” and “down-blouse” photographs, and video voyeurism. Those types of gadgets give a whole new meaning to “peeping Tom”. They allow for serious invasions of privacy, and, at times, they are linked with serious sexual offending—voyeurism being a gateway offence.

The covert filming of people in intimate situations and the distribution of images will often have a sexual element, but not always. It will, however, always be an invasion of privacy, as it concentrates on activities that are, for the majority of people, private. Covert filming can have serious consequences for filmed subjects. They can be deeply distressed and feel violated and diminished when they are considered to be mere objects for another’s gratification. The exploitative and often sexual nature of such conduct requires that it be treated as a criminal offence. The bill provides that anyone who intentionally or recklessly makes an intimate visual recording of another person is liable to imprisonment for a term not exceeding 3 years. This is in line with overseas legislation, which generally treats voyeurism as a crime, with a maximum period of imprisonment that varies but is commonly set at about 2 years—although I believe that Canada is proposing 5 years.

Under the New Zealand bill it is also an offence to possess an intimate visual recording, with a liability of imprisonment for 1 year. If one knowingly and recklessly publishes, imports, or sells an intimate visual image, one is liable to 3 years’ imprisonment. A distinction here has been made in order to exempt Internet service providers. That is, of course, because they just provide the medium for publishing the pictures, just like a photographic paper maker provides the paper but is not responsible for what is printed on the stock. There is also an exemption from liability under the bill for people who possess or publish intimate visual recordings as part of their work, including the police, the Customs Service, members of the SIS, the Department of Corrections, and lawyers.

National supports the Crimes (Intimate Covert Filming) Amendment Bill. It is an amendment that updates the law so that it can manage new technology and the innovative uses of that technology that modern-day peeping Toms have created.

I rise in support of the Crimes (Intimate Covert Filming) Amendment Bill. It is obvious there is a need for this legislation, given the changes or, as some would say, enhancements in technology available to everyday people. These changes in technology have increased the ability for anybody at all to make images and publish them easily, cheaply, and anonymously. This puts at risk anybody who could be anywhere at any time.

A couple of circumstances, though, are not covered, and I wonder whether they should be. One relates to sound recordings. In years past there have been some fairly high-profile cases of intimate sound recordings that have been published, to the detriment of public figures, and we can think of members of the royal family and members of the acting fraternity. But I have one circumstance in mind, which was illustrated by an incident that occurred in Taranaki. My friend Shane Ardern will be relieved to know that it was a long way from Pihama—

💬 Shane Ardern: Or even Te Kiri.

—or Te Kiri.

The case involved a young farming lad who had a crush on the farmer’s wife next door. He snuck over to the neighbouring couple’s farm, crawled under their house, drilled a hole in the floor, and inserted a microphone into their bedroom. Using ancient technology, he then proceeded to record on audio cassette the discussions, shall we say, that occurred within the bedroom. Then he would recover the tapes and replace them, and all the rest of it that went on.

When we discovered what was going on, we found that there was actually very little we could charge him with, because there had not been a burglary. He was not found peeping or peering—in fact, he was not peeping or peering at all—and he was not located on the property, so charges relating to trespass or unlawfully being in an enclosed yard did not apply. The wilful damage to the floorboard by drilling a small hole was infinitesimal.

The real damage, of course, was done to the couple involved, who discovered it had happened when people started talking about it within the neighbourhood. So it is easy to record sound as well as images with recent technology, and I think that the catchment of this legislation could have been increased to offer some security for people who could have their privacy infringed in that way.

Another concern I have is about the definition of “intimate visual recording”, because there are times when people might agree to having their images recorded or their photograph taken. A lot of this recent technology is in very young hands. I am aware of a young teenage couple who had been seeing each other for a while and with whom I had had some dealings. For their own purposes they took naked pictures of each other. What happened, as inevitably these things do, was that the relationship broke down. What happened to the pictures? Well, they were digital images and they were saved on a computer. When the mates of one of the parties got upset at the breakdown in the relationship and at the scorn that was poured upon the person, the pictures were broadcast on the Internet.

It was very difficult to find what legislation would be appropriate in that circumstance. It would not be caught in respect of this legislation, because initially the image was made with the consent of the person in the photograph.

💬 Hon Mark Burton: But not the distribution. It was being distributed without the person’s consent.

I understood that if an intimate visual recording is distributed, the definition of that is “without the knowledge or consent”.

💬 Hon Mark Burton: Without the knowledge or consent of distribution.

I will have to chew that one over. In any event, what happens, of course, is that a person’s reputation—or their view of that reputation—is completely damaged. It is very hard for someone to bounce back from that because he or she feels that everybody knows, in spite of the relatively few people who may know.

Given the fine intent of the legislation, it is a shame that those two issues were not taken into account at the time, although I say that with the benefit of hindsight. The National Party certainly supports this bill and we look forward to its implementation. We hope that members of the public will take some certainty and assurance from the implementation and enforcement of the legislation.

New Zealand First members wholeheartedly support this bill. We have known for quite some time that there are some weirdos and wonder-boys out there, and this bill is an attempt to put some control on those sorts of people. It is absolutely disgraceful that people can get away with filming people in covert situations and trading the pictures on the Internet or wherever.

💬 Christopher Finlayson: Bit like Saunders Unsworth.

I am sure the member does not really believe that.

I was intrigued when the member who has just resumed his seat mentioned the young lad who went to a farmhouse, drilled a hole in the floorboards, and put a microphone through into the bedroom. The police—and I know the member is an ex-police officer—had some difficulty in working out how to charge the chap. Never mind whether the recording was in the bedroom—it could be in the lounge or anywhere. Surely putting microphones into people’s houses and recording what they are saying or doing must be a no-no under the current laws. It must be a no-no in any set of circumstances. I am not talking about sexual situations; I am talking about family discussions. That seems to me to be a total no-no, but this bill does not cover that.

The concern I have after reading this bill is that the police are exempt, as are customs officers, officers employed by the New Zealand Security Intelligence Service, employees in the Department of Corrections, and lawyers. What about licensed private detectives? Are they classified under new section 216M(1)(f): “any other person or member of a class of persons prescribed in regulations made under this Act;”? Surely if a couple are going through difficult times and the wife is wondering where the husband gets to on occasions and wants to employ the services of a private detective—or vice versa; the husband is worried about where the wife gets to on occasions—it is legitimate to engage a private detective to photograph or video whatever he or she sees, for no other reason than peace of mind. Clearly, it cannot be distributed to the wider public. In my view, a partner in a relationship that is a bit rocky and who suspects the other partner of getting up to something, has some rights to determine whether that is true or false. This bill seems to be silent on that sort of issue.

I cannot believe that paragraph (f)—“any other person or member of a class of persons prescribed in regulations made under this Act;”—embraces licensed private detectives. It seems to me that a lawyer or agent might cover the situation, but I believe the bill should give some consideration to embracing licensed private detectives. But we respect that the Government Administration Committee has listened to a number of submissions on the bill, and has come up with a reasonably able, working bill, which New Zealand First will support.

I am concerned that the former chairperson of the Government Administration Committee saw fit to praise Bill Hastings beyond repute. I am quite pleased Bill Hastings has some concerns in this area, but I should put it on the record that some of the DVDs that are allowed to go through the censor’s office leave a lot to be desired. I want to make it quite clear that I have not seen those DVDs, but I have read the censor’s reports. [Interruption] I invite the member who is chuckling over there to read the reports and see whether he approves of them. While we are releasing that sort of garbage into society, we will reap the downside, and I think we are seeing that more and more. Censorship in this country, in my view, needs to be addressed a little bit more comprehensively. [Interruption] Well, the members over there mutter. They should go and see some of the films that are being released in this country right now.

💬 Simon Power: The member has not seen them. How does he know?

I have read the reports. For the member’s enlightenment, the censor has to write a detailed report on the contents of all those DVDs and films. The member should read one of them and see whether he approves. He is a young member. I think he is a father, is he not? When his children grow to the age when they will see that sort of garbage, then he might be a little bit more worried. His youngsters are not yet involved with those sorts of DVDs.

New Zealand First will support the bill. We have concerns, though, and we have indicated our concern that the bill does not quite go far enough in terms of allowing private detectives who are engaged on a legitimate surveillance operation to be exempt. Nevertheless, we will support the bill and we will give consideration to producing a Supplementary Order Paper when the bill reaches the Committee stage.

I rise to speak on behalf of the Green Party on the Crimes (Intimate Covert Filming) Amendment Bill. The Green Party, like all parties, supports the bill, and it is an issue we take very seriously. The bill is designed to deal with what is a growing problem internationally. Of course, as the technology develops and becomes more miniaturised, and more functions become integrated into a single platform, it becomes easier to do the kinds of things that the bill is intended to deal with. So it is timely that in this country we are introducing legislation specifically to deal with intimate covert filming. We support that, because such behaviour is invasive, abusive, and humiliating, and it is right that we should address it.

I touch on a couple of points made by one of the previous speakers, Mr Chester Borrows. He raised a couple of important points that the House should give some attention to, particularly when we move into the Committee stage. The first one he talked about was the issue of audio recordings that do not involve a visual recording; and the example the member gave from his personal experience as an investigating officer was, I think, very pertinent to the issue at hand. I think we should give some consideration as to whether we should extend the scope of the bill to audio recordings, so I thank the member for that contribution.

The other matter he raised is the situation where a visual recording has been made with the consent of the subject but then it is published without consent. I note that the Minister of Justice, Mark Burton, interjected on that point and indicated that his view was that the member was wrong. But I think the Minister is indicating now that he stands corrected.

💬 Hon Mark Burton: No, but I am looking into it.

The Minister says he is looking into it. When I look at the bill and read the wording of it, in my view Mr Borrows is quite correct, because if we go to the new section 216G, to be inserted into the Crimes Act by clause 3, which defines what an intimate visual recording is, it states that it is a visual recording “made in any medium using any device without the knowledge or consent of the person who is the subject of the recording, and the recording is of—” the following things. Now, when it comes to what use will be made of that recording, that is quite a different issue. If we go to section 216I, a person is liable to imprisonment who has in his or her possession an intimate visual recording for the purpose of publishing, exporting, or selling, and knowing it to be an intimate visual recording, or being reckless as to whether it is an intimate visual recording. But whether the provisions under section 216I come into effect is dependent on whether the matter being discussed comes under the definition of it being an intimate visual recording, and that provision states quite clearly that an intimate visual recording is a recording made without the knowledge or consent of the person who is the subject.

So it seems to me that the circumstances that Mr Borrows outlined, where the recording is made with consent but then publication is without consent, are not covered by this bill, and I think that is something we might want to look at. The member raised an example from his knowledge, and there has been a lot of publicity internationally about other cases where that would be a consideration. The famous Paris Hilton videos, for example, are exactly such an example, where a recording was made with consent, but it was then published without consent on the Internet. So we do need to look at that issue.

I accept that maybe the bill is not intended to deal with those issues. Maybe the intention of the bill is simply to cover the situation where the recording is done without consent, but I think it is something we should give further thought to, and I would be interested to hear the Minister clarify his intention in that regard.

The other issue I was going to raise was the one that Peter Brown mentioned around the exemptions, and he talked about the potential for a private detective to receive an exemption under the regulations. He also made a useful point. Again, I would ask the Minister to clarify his intention regarding that issue, and whether he sees that those regulations might include private detectives and the like, or whether it is not intended that that would be the case. I think it would be useful to have that statement on record so that in the future, when we are looking at any regulations that are promulgated, we can refer back to the Minister’s statement to see what his intention was.

The other thing I would like to say before I finish is that I think the select committee did a very good job in scrutinising the legislation. I was not on the Government Administration Committee to take part in the consideration and deliberation, but when I read the report I think it shows evidence that the committee did consider a number of potentially quite knotty details, and I think it dealt with them in a very responsible way. For example, the report states that one of the issues raised was that in order to establish that a visual recording is an intimate visual recording within the meaning of the bill, the prosecution will have to establish beyond reasonable doubt that the recording was, in fact, taken without the knowledge or consent of the subject, and if the subject is difficult to identify, that may be difficult to prove in court. I think the Government Administration Committee was right in leaving that matter alone and expressing the view that it is an evidential matter that should be dealt with in court on a case by case basis. So I thank the committee for its restraint in that regard.

The other issue the committee mentions in the report relates to section 216I, which relates to the purpose of the possession. It makes a distinction that someone who has in his or her possession, without reasonable excuse, an intimate visual recording, knowing it to be an intimate visual recording, is liable to the penalty, but if it is in the person’s possession for the purpose of publishing, exporting, or selling, then the test is different. The test is not: without reasonable excuse, knowing it to be an intimate visual recording; it is knowing it to be an intimate visual recording or being reckless as to whether it is an intimate visual recording. I think that that distinction is an important one to retain, and, again, I think that the consideration the committee gave to it, as outlined in the report, is a useful reference for members.

The final point I would like to address is in relation to Internet service providers. The view of the committee was that Internet service providers should not be criminally liable for another person’s Internet use, and I think that that is right; that Internet service providers cannot be expected to know the content of all the material that passes through their services, or that they post or store in providing a service to their customers. The committee has recommended that Internet service providers should not be liable, although it has said that the exemption should apply only where Internet service providers do not know or suspect that the recording is an intimate visual recording, and I think that that is quite right.

Once again, I thank the committee for a good piece of work dealing with some of the potentially difficult issues arising out of a bill of this nature. I thank the Minister for bringing this matter to the House and I thank members for their very useful contributions in this debate.

In the few minutes that are available I just want to say that the Māori Party is happy to support the Crimes (Intimate Covert Filming) Amendment Bill. Tangata whenua have watched the growth of new technologies with real concern for the way in which intellectual and cultural property rights can so easily be abused. I do not wish to go back over many of the points that have already been made, suffice to say that we support them. But in terms of Te Ao Māori, our symbols, our designs, our stories, our waiata, our writings, and our art are all taonga and, as such, are shared only with those who have the right to them.

Indeed, the current claim before the Waitangi Tribunal, the indigenous flora and fauna and Māori intellectual and cultural property claim known as Wai 262, which relates to the protection and ownership of Māori cultural and intellectual property, is being keenly watched for the potential it has to create boundaries around language, authority, and intellectual and cultural property. In our world view our knowledge is passed from one generation to the next. It is not just handed out to any Joe Public, or Hōhepa in our case.

It is with that sort of background that the Māori Party is very worried about the increasing problems this bill seems to cover. It is the sort of sneaky feeling that somebody is watching us—that Big Brother phenomenon that has become a hit show for some countries already. In today’s times the so-called new technologies of cellphones, cameras, and computers have made that feeling a virus that no one would want to be infected by.

When I look at my own children and their cellphones, and the way in which they can take photos of all their mates and record them for posterity, I always wonder and marvel at how they can turn their hand to the most complex skills of dexterity with the greatest of ease. But, of course, it comes with a cost. With the rapid reduction in the size of cellphones, people are now able to sneakily film intimate situations where people would normally expect there to be a general standard of privacy. For our part, that sort of stuff is not on, and we obviously will support this bill.

Debate interrupted.

The House adjourned at 10 p.m.