Objectionable Publications and Indecency Legislation Bill

This has been an interesting bill. I did not attend all the Justice and Electoral Committee hearings, but some of them I did. I believe that everybody in the House is supporting this bill, and so too are the Greens. I think that the goodwill towards this bill clearly comes from the general abhorrence of the sort of offending that it deals with, particularly the sexual exploitation of children, which is unacceptable at any level of society. For that reason the Greens are supporting this bill. The current legislation is not actually fit for purpose, particularly given changes in technology and other changes over time. We do have a couple of pretty serious misgivings about a couple of provisions of the bill, and we will seek, perhaps, to have those addressed as the bill proceeds through the Committee stage.

Clearly, as I said, the law is not fit for purpose, to the extent that forms of offending are now available, or possible, through technologies that simply did not exist when the legislation we are amending was first passed. It is interesting that there were remarkably few submissions on this bill—only eight, three of which were heard orally. That may have been a function of the timing. The bill was tabled in November 2013 and, of course, the submission period closed in February—never a happy time to endeavour to generate public interest in something like this. I am not suggesting any political motive behind that timing, I reassure the House. I am not suggesting, either, that that never happens, but in this instance, I think it was simply unfortunate timing, and perhaps we might have got a little bit more in the way of submissions given the seriousness and the nature of the legislation. But, be that as it may, we did get some good and useful input from the Law Society, from community law centres, and so on.

Among other things, what this bill does is create a new offence of indecent communication with a young child. This sits somewhere in the middle of a spectrum. At one end is the simple possession of offensive material, and, at the other end, sexual grooming—those rather undesirable practices where people worm their way into the confidence of a child, or indeed a family, and then use that as an opportunity to exploit and ultimately sexually assault children. This new offence covers a gap in the centre of the spectrum, in between the availability of porn and these sorts of undesirable matters. That, I think, nobody can have an objection to, and to that extent the bill does fill a very obvious gap in the existing legislation.

The bill also provides for a presumption of imprisonment for “repeat child pornography offenders”, and that is one of the elements where we do have some unease. That unease was shared by the Legislation Advisory Committee and by the New Zealand Law Society. The former, the Legislation Advisory Committee, felt that there has been a little bit too much legislation coming through in recent times with things like the reverse burden of proof and the presumption of imprisonment—perhaps these are tools we are using rather too readily, given the seriousness of them and the seriousness of the message they send to the judiciary. To some extent, they do not constrain the judiciary by any sense, but they do begin to limit the discretion of the judiciary perhaps.

I think that the idea of presumption of imprisonment does certainly reflect people’s abhorrence of this form of offending, as I said, but I think we need to be a little more creative as well and look at what other solutions might actually generate better options. Specialist courts for sex offenders—which we know from international experience and, to a limited extent, from experiments or trials conducted here—could possibly do better with the lower-end offending of this nature, even repeat offending, in terms of managing these people, rather than simply locking them away and hoping that things will come right.

There are alternatives, like treatment facilities and programmes for sex offenders. I cannot now recall which one, but one of the Government contributors on this bill talked about the people who offend in this way as actually being sick, and I think that is fair comment. People commit crimes for all sorts of reasons. Greed is a common one. I might choose to go and steal somebody’s possessions because I want to own them. Sexual offending of this sort reflects a very disturbed personality, at least. Often that sort of disturbance is amenable to treatment. We have had some success in New Zealand with specialist sex offender units and programmes within our prisons and, indeed, outside our prisons, and I think we need to invest a bit more in making sure that those services and programmes are made available to the people who most need them.

I have had numerous letters over 5 years or so from people in prison who acknowledge that they have a serious problem and want to get on to a programme for sex offenders, but the availability just is not there. I think we could look at investing more in those sorts of positive mechanisms, rather than simply leaping to imprisonment as being the be-all and end-all of the solution.

Some provisions in the bill caused a bit of concern among internet service providers. That concern was around a clarification that a person could have possession of objectionable material without actually saving it or having a physical copy of it. Of course, this recognises that it is perfectly possible to expose yourself to this sort of offensive material, but under the provisions of the old law it was debatable as to whether you actually were in possession of it.

The provisions to overcome that barrier excited the interest of Vodafone, at least, which saw that, as an internet service provider, it could be captured unintentionally—the fact that it is effectively hosting this material, albeit unwittingly, of course, meant that it could be swept into the same bucket. That was a very useful contribution from Vodafone. The response was that that is obviously not the intention of the bill. The Harmful Digital Communications Bill is struggling with similar issues at the moment, but it is made very clear in the text of the bill that that is absolutely not the intention. The internet service providers are not the target.

The point at which we do part company a bit from this legislation is the point at which it is proposed that there be an increase in maximum penalties for the possession, importation, exportation, supply, distribution, and making of objectionable material. The underlying assumption behind that is that longer sentences are a deterrent, but there is ample evidence internationally and, again, in research that has been done here that longer prison sentences are not necessarily a deterrent.

People who offend in this way are driven, as I said earlier, by some deep personality defect. Often they have no boundaries, no parameters. In a sense, this is not rational offending. People are not necessarily going to make the judgment: “If I offend in this way, I’ll go to prison. Therefore, I won’t offend.” The drivers are more complex than that. Simply saying that we are going to have longer sentences does not necessarily equate with deterrence in these cases—or, indeed, in many cases—and I think, again, we need to be a little bit more sophisticated in our understanding of what actually does work as a deterrent and what will enable these people to better control themselves.

The Salvation Army and the Dunedin Community Law Centre made submissions expressing concern about the notion of stretching the maximum penalties on the basis that you could get a somewhat perverse outcome where the possession of objectionable material could carry a higher penalty than the actual physical assault or abuse of a child. There was a counterargument made, to be fair, by the officials. They said that the creation of objectionable material may well involve the abuse of a child or physical harm to a child. So again it requires a reasonably sophisticated approach to try to ensure that we achieve the outcome, which is to drive this menace out of our society, and to do it in ways that are actually going to achieve that end and do not just seem to be going through the motions.

I think that that is probably as much as I can say in the time available, except to say that the Greens will continue to support this bill because there is a gap in the legislation. We are dealing with particularly abhorrent offending. We will, however, seek to get some changes in the Committee of the whole House. Thank you.

At the first reading I said New Zealand First would support this bill because there is a need for strong deterrence to offenders who exploit children, and I would have to disagree with Mr Clendon on this. He says that longer sentences do not necessarily deter offenders. To that I would say that shorter sentences certainly do not deter them, either. The point here is that the deterrents must be sufficient to deal with the crime, and I do not think that in this bill they necessarily are—but I will come to that in a moment. New Zealand First still welcomes the provisions in the bill that clarify some of the offences covered by the relevant legislation and that widen the net to catch a greater range of the people involved. I still welcome the increases in the penalties—some of which are being doubled and others added—but we now find that the bill is defective in several ways, to the extent that although there is much good in it, it can no longer be supported by New Zealand First.

Part 1, amending the Films, Videos, and Publications Classification Act 1993, no longer lives up to New Zealand First’s expectations. Clause 4 increases the penalty for supplying or distributing objectionable material from 10 years’ imprisonment to 14 years’ imprisonment. The offence needs an especially strong deterrent, and the increase is appropriate, but the offence covers distribution by an offender to any other person or other persons generally. New Zealand First believes that there should be a further special provision in cases where the offence is against children under the age of 16, and we reject the arguments that were advanced by officials against doing this. The amendment should instruct the court that where the offence is against children under 16 that is an aggravating factor, ensuring that the penalty imposed would be at the upper end of the scale, which goes to a possible 14 years of imprisonment. We do not accept that it should be left to the court to achieve this by way of its general discretion. We want it to be mandatory, and that is the principal reason New Zealand First will now oppose this bill. It just does not go far enough.

Clause 5 relates to the offence of the possession of objectionable material, and subclause (3) inserts a new section into the relevant Act, which solves evidential problems and widens the net to catch more of the people involved, especially proof of possession where electronic means are used, so that it will not be necessary to prove that an offender has saved an electronic instrument, and there will be no need to prove any intention of doing so. That, we think, is appropriate and necessary, otherwise the evidential burden would be too severe. Electronic material clearly has to be searched for, or at least knowingly accepted, otherwise the offender could not in practice obtain it.

Clause 6 relates to offences of possession of objectionable publications, knowing or having reasonable cause to believe that the publications are objectionable. The penalties are increased from a term of imprisonment not exceeding 5 years to one not exceeding 10 years, or to a fine not exceeding $50,000. But this amendment, we think, should also say “both”, so that both the imprisonment and fine penalties can be imposed. And the fine is far too light. It should be increased to at least $100,000. The reason for that is that some people make a lot of money out of these offences, and the deterrents—the fine and the possible imprisonment sentence—need to be severe, especially the fine. It is just too light, we think.

Clause 7 inserts an important new section, new section 132B, which contains a presumption of imprisonment for repeat offenders who have been convicted of one or more specified publications offences. These offences include the sexual exploitation of children. The offender must be sentenced for the repeat offence to a sentence of imprisonment unless the court considers that the offender should not be so sentenced, having regard to particular circumstances. That could include his or her age, if he or she is under 20. These new provisions are appropriate and would be quite acceptable to New Zealand First. They are the sorts of sentences that are needed to break a cycle of offending, because some of these people become addicted, and for others the financial rewards are just too seductive. So those sentences are satisfactory.

Concerning the amendments to the Customs and Excise Act 1996, clause 10(1) relates to being knowingly concerned in the importation of an objectionable publication—films, videos, and suchlike. The amendment increases the maximum term of imprisonment from 5 to 10 years, and, again, New Zealand First sees that as appropriate. However, Part 2, concerning the amendments relating to indecency, no longer lives up to New Zealand First’s expectations. Clause 13 creates a new offence of indecent communication with a young person under the age of 16 years. A person of, or over, the age of 16 years is liable to imprisonment for a term not exceeding 3 years if he or she intentionally exposes a person under the age of 16 years to indecent material in communicating in any manner with the young person.

Although New Zealand First fully supports that new offence, we do not think that a maximum of 3 years in prison is anywhere near adequate. Compare that sentence with those I have just mentioned for other offences being increased from 5 to 10 years, and in one case to 14 years. These offences are not very different in nature, and for this particular offence to specify a maximum of 3 years is clearly, in our view, grossly inadequate. This is the kind of provision that needs to deter the sort of activity that we saw with the Roast Busters—pretty disgusting stuff. Those people need to be sent a very clear signal, and if they persist in that sort of offence they should look forward to a sentence in some cases, where it is justified, of well over 3 years—in fact, probably well over 5 years if there is going to be an effective deterrent.

So although there is so much to be commended in the bill, and I have mentioned some of it, there are also far too many inadequacies to enable New Zealand First to support the bill overall. I have also mentioned some of those inadequacies. We think, in the end, that the bill is just too weak to ensure that where the offences are against children, the penalties for offenders must be at the high end, or close to the maximum. Otherwise, people who are addicted to these activities, or who just make a huge amount of money from them, will not be adequately deterred, and that, of course, is what the objective is. So New Zealand First, for those reasons, can no longer support the bill.

I rise to speak on the second reading of the Objectionable Publications and Indecency Legislation Bill. I cannot help but make a comment in respect of Mr O’Rourke, who was on the Justice and Electoral Committee throughout the process. There were eight written submissions, and three oral submissions, and throughout that process we had departmental input. We had advisers, and throughout that process and not once did I hear some the comments that have been made today in the House. When it comes to the care and welfare of vulnerable children, it concerns me that that member, who often talks about being tough on crime, has said on behalf of New Zealand First that it will not support this bill. He knows—he has been here long enough—that he could put forward a Supplementary Order Paper and try to advocate and lobby for some of the changes he has just talked about. It is shoddy. It is lazy. That is not the sort of behaviour that I think that members of Parliament should engage in.

This bill is an important bill. This bill is about protecting young children who are exploited. To know that we have support for it right across the House bar New Zealand First concerns many people, and I hope that the constituents of New Zealand First will take notice of that speech and of that member, who represents the party. He is just nit-picking. He is not picking up on the important issues.

So let us think about what is important in this. This Government saw it was important to address these issues, and in December of 2014, over in London, along with 48 other countries and international organisations, we signed up to a statement of action at the We Protect Children Online summit in London. The aim was to address the issues of child sexual exploitation right across the world. This is an issue not just for New Zealand but internationally and globally. This is an issue that is important to the hearts of many people and to many communities that, I am sure, Mr O’Rourke will know about.

The purpose of this bill is simply stated in the explanatory note as this: “A key purpose of this Bill is to implement the Government’s post-election action plan to increase penalties for producing, trading, or possessing child pornography.” That is about as simple as it gets. That is the clear purpose of bill. It goes on: “The Government’s objective is to ensure that sentences for child pornography offences reflect the seriousness of the offending and send a strong message …”—it sends a strong message, Mr O’Rourke. We debated this at the select committee, and the unanimous view at the select committee was a full recommendation not to change the bill that had come before the select committee.

Unlike other jurisdictions, New Zealand does not have a distinct child exploitation material offence. The material is the subject of publications that are objectionable under the Films, Videos, and Publications Classification Act 1993, so we believe that it is important that the bill is an omnibus bill. It amends three different Acts where we need to effect a change, and here is the reason why we think that is absolutely important. The Office of Film and Literature Classification is responsible for determining what is objectionable and ensuring that all publications are dealt with in a uniform and consistent manner. To that end, we know that the submissions that came through helped to address these issues. I want to go through some of the clauses that I think are really important. Out of the eight submissions—and we had three oral submissions—there were three key focus areas that came to our attention.

💬 Denis O’Rourke: Tell us why the penalties are so weak.

Maybe Mr O’Rourke was not awake at the time, but here it is, and I will read them for him: increased penalties, possession of electronic publications, and presumption of imprisonment for repeat offenders. Let us go through some of those, Mr O’Rourke. First, increased penalties, because that is the issue of contention for New Zealand First. Again, I am absolutely surprised at the member’s comments, because we had a unanimous view and we were working collegially.

💬 Denis O’Rourke: It wasn’t unanimous for New Zealand First.

This is an important bill, Mr O’Rourke—an important bill to New Zealanders—so let us talk about some of the offences that were there. The bill increases the maximum penalties for objectionable publication offences as follows. Possession of an objectionable publication—under section 131A of the Films, Videos, and Publications Classification Act, the penalty increases from 5 years’ imprisonment, which is its current state, to a maximum of 10 years. We believe that is fair. That is an increase from 5 years’ imprisonment to 10 years. The import or export of an objectionable publication—clause 10 of the bill amends section 209 of the Customs and Excise Act by increasing the penalty from 5 years to 10 years. We believe that that is important.

Here, maybe, is the contentious part—the supply, distribution, and making of an objectionable publication. Under section 124 of the Films, Videos, and Publications Classification Act as amended by clause 4, the penalty increases from 10 years’ imprisonment to 14 years. We know that some submitters were concerned about this because of the anomaly that it seems to create when people think about instances of this offence compared with instances of physical abuse. What we drew on, along with the officials, is that the material that is often being exposed is material that is a physical offence and a sexual offence—and often against children, which we know is abhorrent to all New Zealanders and to people all around the world as well. So we believe that increasing the penalties for these offences does send a very strong message as well.

I just want to pick up on the point that Mr Clendon made in regard to incarceration and whether it has an impact, an effect, on rehabilitation. We believe that, yes, it does. It sends a strong message, but the research also shows that that process of incarceration shows what kind of rehabilitation is important. This Government has ensured that we will put in extra resources, support, and help. I have even been down to see some of those programmes. I went down to Spring Hill Corrections Facility to see Saili Matagi, which is a programme to help rehabilitate offenders—not with regard to this offence, but other offences. But it is the belief of this Government, working with the Department of Corrections, that with incarceration and good rehabilitation we do see changes in the behaviour of those who are imprisoned for their offences.

I want to pick up on another one of the key points that was picked up. Clause 5 relates to the possession of electronic publications. We know that that was a concern and, as was mentioned by Mr Clendon, the internet service providers talked about their concern about this. This amendment is for the avoidance of doubt, and it was clear about that. We believe that that is really important because there was a loophole that allowed others to view the material, but because they had not downloaded the material or saved it on to their hard drives, they could find a legitimate way—illegally—of avoiding any form of imprisonment and any form of charges as well. So we believe that this was an important aspect of that.

We did pick up on the point that Vodafone made—which was important—around its concerns about unintended consequences. In that negotiation, or conversation and debate, Vodafone did talk to us around the checks and balances that it has in place to ensure that for certain time periods, where that was there, it is often scanning its material, looking to see what is there and what is not acceptable. So for that submitter, I think we came to a place where even it could agree that clause 5 was important. The clause should not be changed. It should be included in the legislation.

Clause 5 is not intended to widen the definition of possession. Instead, it simply affirms in legislation the approach already taken by the courts. As such, internet service providers, telecommunication carriers, and network providers will not be subject to any laws under the proposed amendment.

I want to also draw attention to some final comments, and this is in regard to the Harmful Digital Communications Bill. There was some conversation by submitters who talked about the fact that we have got two bills and they asked why we could not include those amendments all into one. So in regard to the Harmful Digital Communications Bill, we know that, in particular, the digital aspects of the Objectionable Publications and Indecency Legislation Bill connect with the Harmful Digital Communications Bill. We would have preferred to address the issue in one large piece of legislation, but for us, the bills are different. One mitigates the harm around cyber-bullying and digital harassment. Therefore, it is important that that bill provides a civil enforcement regime so that we can appoint an approved agency and a provider that is allowed to mitigate those issues. We believe that it is important to receive, assess, and be able to deal with the complaints that come through. The Objectionable Publications and Indecency Legislation Bill has a broader focus than the communication of publications that occur in the digital realm, but we believe that this bill is important to that issue as well.

I believe that this is a good bill. I look forward to the Committee stage. I look forward to—

💬 Denis O’Rourke: SOPs.

—Mr O’Rourke putting in a Supplementary Order Paper, because I think that is important to this bill. We believe that there is support around this bill, so despite the banter that we have just had, I think what is important is that the key elements of the bill are supported right across the House. We believe that it will protect. We believe that it will provide a regime that is important in order to enforce a very strong message, so that the crime sort of fits the offence that has been committed, especially against children and those who are vulnerable. I commend this bill in its second reading, and look forward to its Committee of the whole House stage. Thank you.

I understand the next call is a split call. Jan Logie—5 minutes.

I rise to take a short call on the second reading of the Objectionable Publications and Indecency Legislation Bill. The Green Party is supporting this bill. This legislation seeks to do five key things. Firstly, it seeks to increase the maximum penalties for the possession, import, and export of objectionable publications from 5 years’ imprisonment to 10 years and to increase the maximum penalties for supply, distribution, or making an objectionable publication from 10 years to 14 years. Secondly, it creates a presumption of imprisonment for repeat offenders involved with child exploitation.

These first two points the Green Party does have concerns about, and I will talk about that a little bit later, but the next three points we totally support. This legislation also amends the Films, Videos, and Publications Classification Act to clarify that possession includes the intentional viewing of indecent material even without downloading or saving it. The fourth point is that it removes the requirement for law enforcement agencies to get the consent of the Attorney-General before prosecuting, while maintaining that need for consent for private prosecutions. The fifth point in the bill is that it creates a new offence under the Crimes Act of indecent communications with a young person. The young person is defined in this legislation as 16 and under in this instance.

This bridges the gap between objectionable publication restrictions, which prohibit recording communication with a young person, and the other legislation that we currently have of a sexual grooming offence, where an offender takes a step to meet a young person. So we saw that in the law there was a gap around that indecent communication online. We did not have an offence in that space until this legislation, and we believe that this is a very important gap to be filling.

I clearly recognise that the intent of this bill is to improve the safety of children and young people in New Zealand as a primary driver. And, clearly, there have been gaps in legislation such as defining intentional viewing as counting as possession and the crime of knowingly indecently communicating with a child under 16.

It is, of course, important to ensure that our legislation matches the modern world that we live in and enables identified harms to be appropriately responded to by our law enforcement agencies. We should be doing what we can to protect children from predators and also creating an environment to ensure that adults engaging sexually online are actively encouraged to check the age of the person whom they are engaging with. This legislation helps to create that environment.

I do, however, want to sound a note of caution about the increase in penalties and the presumption of imprisonment. We share the concerns raised by the Law Society and the Legislation Advisory Committee. We are not opposing this legislation but we do believe that the impact of these changes should be carefully monitored. There is certainly some evidence that increases in penalties for sexual violence have not helped reduce the incidence of sexual violence. Indeed, we have quite a lot of anecdotal evidence that at times they have created a barrier to reporting. We want this to be carefully monitored. It is important, though, to note that the increases in penalties do provide for a new maximum, and it will be up to judges to decide. The current legislation requires the court to take into account, as an aggravating factor, the extent to which the publication exploits children.

I also reinforce for this House the urgent, urgent need for more treatment services for sex offenders and children engaged in harmful sexual behaviour. It is not enough to get tough on crime. We need to ensure easy access to support services and treatment services, and of course ensure we have a functioning justice system that will enable convictions and appropriate consequences. We owe it to ourselves as a country to ensure we do everything we can to prevent sexual violence.

I call Kris Faafoi—5 minutes.

We quite often say it is a pleasure to take calls in this House on pieces of legislation, but it is not in this case because I think anyone who has spoken on this bill would prefer that they did not have to. However, it is a necessary piece of legislation, given the kinds of times we live in and given the access to content that we have now, by people of all motivations. As the previous speaker said, this piece of legislation has widespread support from around the House. Up until recently I thought it had unanimous support from around the House. But obviously New Zealand First has the right to have its objections to the bill and it will have the Committee stage to make any amendments that it sees fit.

Can I deal with some of the practicalities of this bill before I talk at another level. I think we are seeing piecemeal legislation coming from the Government in terms of dealing with online content, how we police it, how we monitor it, and how we control it. The technological changes are happening at such a fast rate, but it is quite clear that our legislation at the moment is not fit for purpose. I will come back to that in my very short contribution. The increase in sentence, from 10 years’ imprisonment to 14 years, for the possession, import and export, and supply and distribution of objectionable material is something we obviously have supported. I do note there was some objection at the select committee, from both the Law Society and the Legislation Advisory Committee, to the assumption of imprisonment for second and third offences. Despite their reservations—and I think we may have had some sympathy with some, but not all, of their submissions—we will continue to support this legislation because of the nature of some of the material that we are talking about here. For second and third offences, the judges will have discretion as to whether or not they use their discretion to put people away behind bars.

I think Alfred Ngaro also referred to clause 5. I guess this is a classic clause as to where the material facts might be different for someone if they actually have possession of a tape—VHS in the old days, or a DVD these days—and view the material, whereas someone online views it but does not have possession. They have essentially committed the same crime. They have viewed it and have possession of the content. But under the old law, the person who has simply watched it online and does not download it or copy it would not have been held accountable for an offence. I think clause 5 makes sure we are moving with the times. If you intentionally watch some content online that you should not be watching, under this law you are captured—you commit the offence.

I also acknowledge the submission of Vodafone New Zealand. It was concerned that the bill, in its primary form, said that if you were in possession of the material you would be committing an offence. I spent 2 or 3 days with Vodafone. I am not a techie, but basically if someone searches for something on the internet on Vodafone’s network and that content is overseas, Vodafone holds that content here in New Zealand. It saves the money from getting the content from overseas. So technically if someone on Vodafone’s network had searched for the objectionable material, Vodafone would hold it inside their server here in New Zealand. That would technically mean it was contravening the law as it stood. I think it is wise and clever that we have made some amendment to the bill to make sure the likes of Vodafone, Spark, and any other internet service providers are not found guilty of possessing this material if someone on their network is going out and getting it. It is the person who is actually in possession of it, has downloaded it, or viewed it who is the one who is going to be held accountable.

This is necessary legislation, but I think the Government needs to think in broader terms about how it deals with the deluge of content that New Zealanders are soon going to get their hands on when this ultra-fast broadband system comes online. Basically, households around New Zealand are going to get their hands on much more content and we need to make sure that there are penalties for people that are uniform right across the spectrum for any offences they commit. So far we have got this piecemeal approach, which I do not think has been working, and that I think is something that New Zealand First has brought up.

It is a pleasure to take a call on this bill, the Objectionable Publications and Indecency Legislation Bill. It is always a pleasure, of course, to follow Kris Faafoi, my friend from the parliamentary cricket team. He always makes a learned contribution and I think he spoke very well. I did find it a slightly odd contribution from Mr O’Rourke for New Zealand First. Let us be very clear about what New Zealand First is voting against tonight. The New Zealand First Party is voting against putting up the penalties for the supply, the creation, and the distribution of objectionable material—

💬 Denis O’Rourke: You couldn’t have listened to the speech.

I did listen to your speech. You said you are going to vote against this piece of legislation. So let us be very clear. It is particularly odd that New Zealand First is voting against it, given the words of Mr O’Rourke in the first reading debate on this bill, when he said that “New Zealand First welcomes the increases in penalties and the new offences that are specified in the bill.” Indeed, he also said: “It is always a pleasure to support good Government legislation,”—and indeed he was right—a few months ago. He said further that “New Zealand First will be happy to vote for it.”

It is not a good enough argument to say that you are going to vote against a piece of legislation because it does not go far enough. Mr O’Rourke’s colleagues in the Green Party, over on the Opposition benches, often vote in favour of legislation whilst expressing caveats and the belief that they would go further in some instances or they would change a few things. But, on balance, they often say: “Actually, this is generally a good bill. We might do a few things differently. We might increase the penalties in some particular instances. We might change a few things. But, on balance, is this bill going to improve the lives of New Zealanders? Is this bill going to make New Zealand a better place?”. The Green Party often votes with caveats. In fact, to be fair to the contributions of Mr Clendon and Ms Logie to the debate tonight, that is exactly what they will do. But not so for the good people in New Zealand First—no, no. If they cannot have it all their own way, if the bill is not perfect, they will vote it down. I say that is very regrettable, because what this bill does is very important. This bill increases the penalties for people who supply and distribute child pornography, and it fills a lacuna in the law by which people can intentionally view material but not necessarily download it and, therefore, cannot be prosecuted. That is a very important part of the bill, and New Zealand First is opposed to it. I think that is regrettable. I urge—

💬 Denis O’Rourke: New Zealand First is not opposed to that part. That was made clear in my speech.

You are voting against the bill, so I urge you to reconsider your position at the Committee of the whole House and the third reading. This bill is an important bill. As I have mentioned, it does increase the penalties for possession of objectionable material. It does fill a lacuna in the law.

I want to spend a little time talking about the presumption of innocence that it creates for repeat offenders. Quite rightly, a little bit of concern was expressed by the Green Party, and I think it was reflecting some of the submissions to the Justice and Electoral Committee. I was not a member of the House, regrettably, when the select committee considered this bill, but I have read the submissions. The Green Party’s concern reflects the concern of the Legislation Advisory Committee and the Law Society, and that is fair enough. So what I did was I went and looked at the Crown Law Office advice to the Attorney-General, because members will be aware, of course, that the Attorney-General is required, after the first reading of a bill—or I think it is actually after the introduction of a bill before the House, from memory—to file a report with the House if that legislation is unjustifiably inconsistent with the New Zealand Bill of Rights Act.

💬 Brett Hudson: What did the Attorney-General find?

So I went and looked up the legal advice. The first point to note, Mr Hudson, is that there is, in fact, no section 7 report that the Attorney-General has laid. So what that indicates is that, in his view, the bill that is before the House is consistent with the New Zealand Bill of Rights Act 1990. And that is important. Not every bill that comes before the House is. In fact, this Government has introduced bills that are inconsistent with the New Zealand Bill of Rights Act—where the Government takes a different view to the view of the Attorney-General in his learned opinion.

I also went a little bit further than that. I went and looked up the legal advice. Members will also be aware that the Government waives privilege that attaches to the legal advice that goes to the Attorney-General from either the Ministry of Justice or the Crown Law Office on matters for section 7 reports under the New Zealand Bill of Rights Act 1990. The legal advice that came from the Crown Law Office was that the presumption of imprisonment did engage section 9 of the New Zealand Bill of Rights Act, which protects against disproportionately severe punishment. So it engages the right, but the legal advice said that that would be unjustifiably inconsistent with that right only if the effect was to require a judge to impose a sentence that was grossly disproportionate to the offending. The legal advice makes it clear that the discretion still lies with the judge. So, if imprisonment is not an appropriate sentence having regard to the particular circumstances of the case, the discretion that remains with the learned judge is enough to make sure that the right in section 9 of the New Zealand Bill of Rights Act—which protects against, as I said, disproportionately severe punishment—is not breached. I thought that that made a lot of sense. Although I fully recognise and understand to a certain extent the concerns expressed by my colleagues in the Green Party, I am satisfied, as, I think it is fair to say, Government members are, that there is not an unjustifiable limit on any right in the New Zealand Bill of Rights Act.

The other right I want to talk about just briefly is in section 14. I have had a look at the debate and section 14 of the New Zealand Bill of Rights Act has not really been engaged with so far. Of course, that is the right to freedom of expression. Everyone has the right to freedom of expression—the freedom to seek, receive, and impart information and opinions of any kind in any form. Of course, this bill is a prima facie breach of the right to freedom of expression. I will express a little bit of concern here, as I did on the Coroners Amendment Bill in the latter part of last week. I will express a little bit of concern about the legal advice on this point that went to the Attorney-General. The legal advice that went to the Attorney-General simply said that the bill constrains the creation, possession, and trafficking of objectionable material, and that is a demonstrably justified limit. That is it. That is literally the statement. It is just one sentence. There is no reasoning. There is no analysis. There is no explanation. It just asserts without evidence or without much reasoning that this is a demonstrably justified limit. I happen to agree that this—increasing the penalties or, in fact, the mere existence of penalties for the trafficking of objectionable material, child exploitation material, in particular—is a demonstrably justified limit on the right to freedom of expression. It is important that we deter the possession of this material so that we deter the creation of the material, so that we deter the exploitation of children and others in the creation of this material, and so that we stop the revictimisation that occurs when this material is in the public domain. I think it would have been good to see some more explanation and more analysis within the legal advice.

This is an important bill. As I mentioned at the outset of my speech, child exploitation is an abhorrent crime, and other members have mentioned this as well. It is a problem for which there is some evidence that it is getting worse. I am informed that 200 new images are put into circulation on the internet every day. That is a shocking number. This is clearly a global problem, but it is a problem that New Zealand can have some impact on by a bill such as this, which increases those penalties, fills a gap in the law, and makes sure that the New Zealand legal system keeps up with technology that is, of course, increasing apace. I have to say that this is a good bill. It is just regrettable that a party that voted for it at its first reading for very good reasons is not prepared to recognise that it remains a good bill and will not continue to vote for it.

I am pleased to take a call on this bill. I want to raise a couple of points that I do not think have been fully explored by the other speakers. This is a very important bill. Protecting our children from exploitation—supporting the safety of our kids—is one of the most significant things that we can do as a House. But what I am a little disturbed about is the timing of this bill in respect of its passage through the various stages—not actually giving submitters, I do not feel, sufficient time to actually prepare submissions, be aware of the bill, and actually make submissions on this bill. I hear from other contributors to this bill that there were fewer than a dozen submitters.

When we think about the work that has already come to this House—for example, on the Vulnerable Children Bill or on the funding for sexual violence services—this is a bill that has the calibre to protect our children in the same vein that those two other bills do. I am disturbed and confused as to why there were not more submitters. I feel that it is unfortunate; it is because of the timing of this.

I know that there are groups that would like to have had the opportunity to present submissions on this. This is a significant issue. It is an issue that goes to the heart of protecting our children and it is an issue that tends to go under the radar. A lot of the activity that this bill addresses happens in the privacy of one’s own home, away from the eyes of the wider public, but we all know that it occurs.

This is a serious bill about the offences relating to child pornography. Let us not dress this up. The bill does go some way to looking at the maximum penalties for the manufacture, possession, supply, and distribution of this material, but it really relates to the fact that if there was no consumer, there would be no manufacturer. So, as I said in my previous piece tonight, we also have to look at what we are doing to prevent the harm from happening in the first place. I know that this bill does not deal with that, but the wider issue is that we need to look at prevention before we actually deal with the harm that is caused. Earlier tonight in the Parole Amendment Bill debate we talked about the impacts of offending on victims. We need to remember the victims when we are working with and dealing with bills such as this.

I want also to look to the discussion that was had. There has been quite a fruitful, I guess, discussion across the House. The report that came back from the Justice and Electoral Committee was about the majority view. New Zealand First has taken a slightly different view in terms of penalties. I agree that that is definitely an issue that we need to look at.

One of the matters that was raised was around the relativity of this offending to physical harm. I understand that someone has already made the comment that the production of this material could also result in the physical harm of children. So I agree that there is some discussion to be had around the relativity of penalties imposed around the development of this objectionable material and regarding the physical harm to children. I agree that there is more discussion needed on that.

With regard to clause 5 and the possession of electronic publications, I also look at some of the contributions that were made that want to also include discussions around the Harmful Digital Communications Bill, because we are looking at material that could potentially sit in both areas. It concerns me that we do have legislation that possibly can cover both situations. Would it not have been more sensible to look at overarching legislation that captures all of those experiences and situations, rather than to have two? I think that there is an opportunity for us to discuss that.

I notice that Vodafone made a submission around the possession of electronic publications, and I think that is right. It is interesting that it was the only internet service provider to do so. I know that within the electronic publications arena there are also modern applications that we all have access to on our smartphones and other devices that potentially throw us into a position of having that material on our device even though we may not have initiated it. We all know about Snapchat and the material that comes to us unwittingly, and there have been several high-profile people who have been caught out with material that has been forwarded without their knowledge.

Clause 13, which creates the new offence under the Crimes Act of indecent communication with a young person, closes, I agree, a very big gap in terms of the issue around the grooming of children. It is a very useful addition to our arsenal in terms of supporting children. The grooming of children and then taking the next step and actually arranging to meet them was discussed, I know, in a bill that came before the House last week, I believe. It is an interesting issue, again. I go back to the point that we have part of the concern here in this bill, we have it addressed in another part in another bill, and we should consider, really, tidying up the issues, rather than having part of the offence in one bill and a part in another bill.

I notice too that there was some discussion around the actual definition of “indecent”, and a discussion that it appears often in the Crimes Act. There was a note made that there is a well-established body of case law around the definition of “indecent”, but modern times should cause us to rethink that. I want the work that continues on this to actually consider that.

I also want to refer to what I said earlier about prevention. It seems to me that the wider context about many of the bills that we have seen recently speaks to the social mores that this modern world brings to us and how we can actually protect people from this offence in the first place. I look forward to the discussion where we are able to look to those matters of prevention rather than dealing with the offence in the first place. Thank you.

The next call is a split call, I understand.

Thank you for allowing me to take this call in the second reading of the Objectionable Publications and Indecency Legislation Bill. I want to thank the Justice and Electoral Committee and the Hon Amy Adams for spearheading this and for bringing it to the House. We have already heard from members opposite and from members on the Government benches that this is an important bill.

Of course, I am very passionate about children, too, and pleased to be speaking about the bill. I certainly take the point of a member opposite, Mr Faafoi, that it is not a pleasure to be talking about these offences but that it is certainly a pleasure to be aiding the protection of children. I am a mother, and, as I said, I am very passionate about children and protecting them, but, as we have witnessed around the House, you certainly do not need to be a mother or a father to have fierce motivation to support this bill. I note that there was good work done in the select committee and that when the bill was brought to the House, there was unanimous support for it, despite the contribution of New Zealand First. I am looking forward to supporting this bill.

This bill is all about ensuring that the sentences for those who deal with objectionable material involving children reflect the seriousness of the offending. I must say that the exploitation, the cruelty, the violence, the horror, and the abuse of children will certainly not be tolerated by this Government. With the evolution of the internet, offenders can obtain objectionable materials quickly and at rates that we just could not imagine even a couple of years ago. We have already heard about accessibility through networking sites, sharing of photos through Snapchat, and text messaging. Communications such as these are making it so easy for people to connect but also very easy for adults to connect in communications with children. As part of that, obviously, this bill brings in an amendment—clause 13—that is the major change and covers the gap, making it an offence to have indecent communication with anyone under 16 years of age.

The bill takes the matter further, too, with the object of grooming, where those people take it one step further, with a view to meeting those children and putting them in harm’s way. I will just reiterate that this Government will not tolerate exploitation and violence towards children, so I am totally supportive of that amendment.

The bill also talks about the presumption of imprisonment for repeat offenders, and I think that that is fair enough. There should be that presumption. If somebody is dealing in objectionable material and they have done that time and time again, then they should be punished. I take the point mentioned earlier that these people are dealing with deep-rooted psychological issues, and they will certainly be treated through specialist programmes, but I reiterate that this bill is about making the punishment fit the crime, and it must be looked at in that way. The sentences have been extended to support that, and, as such, I commend the work of the Justice and Electoral Committee, spearheaded by the Hon Amy Adams. I commend this bill at its second reading.

I call Stuart Smith—5 minutes.

As my colleague Sarah Dowie said before, I also commend the Justice and Electoral Committee for its work and Amy Adams for bringing this bill, the Objectionable Publications and Indecency Legislation Bill, before the House. I take on board what was said by Mr Faafoi earlier. It is not something that gives anyone any pleasure to speak about, but we are here to do the right job for New Zealanders, and sometimes that means doing the tough things, as we saw earlier in the day today.

I was also taken by Poto Williams’ comments before, and I absolutely agree with what she said. However, it is such a difficult thing to deal with at that end, and we cannot give up on it, but trying to ensure that there is no market for this material would, of course, be the best solution. Unfortunately, we are living in a world where we have this situation now and we have to deal with what is in front of us, but I agree wholeheartedly that we need to look forward and spend some time thinking about how we might make some ground on that. I know, as a member of the Social Services Committee, which has been dealing with an inquiry into sexual violence, it is not a pleasant subject and it is not an easy one to grapple with. Certainly, the Objectionable Publications and Indecency Legislation Bill is dealing with the sharp end of that.

I note that this bill is increasing the maximum penalty for the possession, import, and export of an objectionable publication from 5 years’ imprisonment to 10 years’ imprisonment. Too often I think we think of imprisonment as punishment, and, indeed, that is partly what it is there for, but it is also there for protection, and protection for the innocent people left behind. I think we must not ever forget that. Really, for some people you would think maybe getting out of prison should not be an option, particularly in some of these hardened cases, so I applaud that clause in the bill that moves it out from 5 to 10 years. I think that is a very good move. Likewise, I also note that increasing the maximum penalty for distributing and for making an objectionable publication from 10 years’ imprisonment to 14 years’ imprisonment is also a good move and something I wholeheartedly support.

It seems to me that at the heart of this bill is really a change in technology. I note that this bill is really looking forward and trying to futureproof the law for the future. It is something that we really must think of in all of the legislation that we put forward, because times change. Although we really think Facebook is in everybody’s lives today, it is not that many years ago that Mark Zuckerberg came up with Facebook. How many years ago was that? Brett? Was it 10, 15?

💬 Chris Bishop: 2004.

Four years—4? No, no.

💬 Chris Bishop: 2004.

2004. So it is not that long ago—10 or 11 years ago—and yet everybody in this House today, I would imagine, has a Facebook account. I think we now know that before some employers take people on in employment they look at their Facebook accounts and see what they can find. For some young people being caught with indecent publications in social media, it is with them for ever, so it is really important that we get on top of this pretty quickly. I think what we would have thought of as being pornography and indecent publications only a few years ago would have required some sort of hard copy; today it is digital. Who knows what it will be in the future. Holograms are only just round the corner.

I think we really need to ensure that we get good legislation, and this bill is going a long way towards that and I wholeheartedly support it. I am rather disappointed in my colleagues in New Zealand First. I really think their attitude on this bill is a triumph of ideology over good sense, and really they should take a bit of a hard look at themselves on this one. I take great pleasure in commending the bill to the House. Thank you.

Bill read a second time.