Harmful Digital Communications Bill

I move, That the Harmful Digital Communications Bill be now read a second time. Bullying is not a new problem, but its reach and its impact have increased considerably in the digital age. In its in-depth report to Parliament on the issue, the Law Commission found that one in five New Zealanders aged between 13 and 30 have experienced harmful communication on the internet, and these numbers are increasing all the time as more young people engage. Bullies and harassers use emails, text messages, and social media sites to intimidate people, spread damaging or degrading rumours, and publish invasive and distressing photographs. There are a number of reasons why harmful digital communications are more worrying and potentially more serious than off-line bullying: their ease and speed of dissemination, their potentially viral nature, the persistence of the information and the difficulty of removing it, and, of course, the facility for anonymity. For all of these reasons, and based on the very real damage we have seen inflicted, this kind of harassment is unacceptable and must stop.

This bill represents world-leading legislation to tackle cyber-bullying, and I want to acknowledge the work of my predecessor, the Hon Judith Collins, in bringing this bill to the House. The bill seeks to prevent online bullying and harassment and reduce the devastating impact of perpetrators’ actions. It will empower victims by providing a quick, low-cost, and effective way to right the wrongs done to them. Our proposals make it clear that it is not OK to use digital communications in harmful ways, and that those responsible for causing serious harm will be held to account.

We have to recognise that in the modern digital world it is becoming increasingly prevalent for perpetrators to use social media to bully and hound their victims. We need look no further than the Roast Busters case, where we had young Kiwi men take to social media to continue to harass and demean their victims far beyond the time and place of the initial attack, and it is happening more and more. Last Thursday we saw the whole of this Parliament stand in unison and outrage against the Roast Busters case and the impact the case, and its handling, had on the victims. Yet now, not a week later, some MPs are rallying against the prompt passage of the very bill that would allow us to better protect women in these situations from being revictimised through explosive, fast-disseminated means. The Harmful Digital Communications Bill is making an effort to address some of the harm caused by revictimisation through online tools. It is farcical to be outraged one moment at the way these young men gloated about their conquests on social media, and then in the same breath oppose key legislation that would prevent their victims from being attacked once more on the same platform. I would like to think that this entire House could bring itself to support a bill that can prevent victims of sexual abuse from being revictimised through social media, in the same way that members were outraged at the criminal acts themselves, and provide effective means to deal with those who set out to cause such harm.

The suggestion that has come from some quarters, that the existing laws are adequate to deal with abusive material on a website, is wrong. The current law could require a young person to go through a drawn-out court process to prevent abuse or harmful information being spread on the internet. This can be immensely costly and lengthy. In stark contrast, this bill tackles cyber-bullying head on, and simplifies the process for getting abusive material off the internet in a quick and proportionate way.

There are also claims from some quarters that this bill is out of line with what is happening overseas. In fact, bills dealing with these issues are being passed in similar jurisdictions all over the world. What opponents fail to mention when describing the new Australian law is that Australia already has a cyber-bullying criminal offence, which has been in place for more than 10 years. Their recently passed legislation to set up a regime also has many similarities to the approved agency in this bill. The United Kingdom relies on existing law, both civil and criminal, to deal with harmful digital communications. A number of offences in the United Kingdom are used regularly to prosecute people for offensive or harassing communications. However, like us they have acknowledged that the internet can provide new means by which to cause harm, and recently enacted a new offence in February this year for revenge porn, where intimate photos or videos are taken with consent but released without consent. There is a gap in current New Zealand law where revenge porn is concerned as it is not currently illegal, but this bill changes that. In each of these countries criminal sanctions are part of the mix, and it is proper that they should be provided for the most serious cases in New Zealand.

Despite what is being said, the bill will not criminalise children. I cannot make that any clearer. Children are those under the age of 14 years. This bill creates new criminal offences that will be subject to the same youth justice processes that apply to other criminal offences. This means the offences will not apply to children, but will certainly apply to young people aged 14-16 and to adults. Those young people will go through existing youth justice systems in New Zealand. This is not inconsistent with the approach taken in Australia, which has had a similar offence, as I say, for more than a decade, and where only eight prosecutions of 300 have been for people under 18. Although there is a perception that harmful digital communications are mostly an issue for children and young people, this, of course, is not the case. The Law Commission’s report noted many cases involving adults who suffered harm and who could not get redress. NetSafe has noted that half of the people it assists with harmful digital communications are, in fact, adults.

While we are on the subject of misinformation, it is worth turning the spotlight on the actions of some of those multinational companies that have been actively lobbying around this bill. Let us be really clear: global giants like Google are not public interest groups. Their interest is in their profit and having a market that is as unregulated as possible. It should be noted that Google was among the top 10 spenders for Washington lobbyists last year. It spends millions defending its interests and is now spending more on lobbying than some drug companies and weapon makers are. It is incredible to me that members of this House are more interested in parroting lines produced by global multinationals, which do not pay their taxes here in New Zealand, than in supporting a bill that addresses the harm and abuse by cyber-bullying of New Zealanders. Anyone who thinks that our law can stay static in the face of new technology is either ignorant or wilfully blind. The speed at which information disseminates and spreads and survives, and is able to be found with a search engine from anywhere in the world, bears no resemblance to the search of a card catalogue at your public library 50 years ago.

A lot of the commentary around the bill has been around the criminal aspects, but, in fact, the vast majority of the bill is about civil enforcement, and advice and education from the approved agency. Currently people harmed by digital communications find it very difficult to stop the abuse and have their tormentors answer for their actions. For example, defamation proceedings through the court are not seen as practical or cost-effective. The new civil enforcement regime addresses these issues by establishing an approved agency backed by the District Court. The approved agency will offer advice and use informal methods such as negotiation, mediation, and persuasion to resolve complaints. The vast bulk of complaints will be dealt with in this way. For the very serious complaints the District Court will act as a backstop, with the ability to make various orders. For example, the court may order the removal of harmful content, or the identification of anonymous bullies. This approach is intentionally novel and forward-looking, and reflects the Government’s focus on finding practical solutions that work in the real world.

The bill provides practical assistance to people of all ages, and, as we know from the tragic case of Charlotte Dawson, anyone can be a victim. Crucially, the bill will be particularly helpful for children, teenagers, parents, and schools, especially where cyber-bullying takes place. For the most part, the approved agency will do this by resolving complaints, but it will also work hard to prevent such harm through education and advice.

The bill creates a new cyber-bullying offence because there are gaps in New Zealand law. These include: existing laws on threats and intimidation, which do not always apply when there is emotional or mental harm; publishing without consent intimate recordings or pictures that were made with consent, such as revenge porn, where the Crimes Act currently only criminalises making or posting intimate recordings taken without knowledge or consent; and malicious impersonation, where current law allows for impersonation to be prosecuted where it is to obtain a benefit or cause loss but not clearly where it is for the purpose of causing distress or harm. I note some issues have also been raised in relation to the operation of a “safe harbour” provision, and I have requested further advice on these concerns.

This bill’s purpose is to prevent and mitigate the harm caused by abusive and destructive digital communications, and empower victims by providing a quick, low-cost, and effective means of redress. The bill contains a number of safeguards to balance the freedom of expression with the reduction of harm. With the committee’s proposed changes, I am confident that the bill will more effectively achieve these objectives. I commend the bill to the House.

First of all, can I offer my congratulations to Brendon McCullum, a boy from south Dunedin who got 59 runs off 26 balls tonight. Secondly, can I say to the Minister that she needs a bit of a fact check herself: there is no doubt that cyber-bullying is a growing scourge, and the worst thing about it is that young New Zealanders are being affected. In fact, the term “cyber-bullying” is now in our lexicon. There is also no doubt that Labour supports, and has supported and continues to support, the intent of this bill, which is to mitigate the harm caused to individuals by digital communications and to provide those victims with a quick and effective means of redress. The big problem is that this bill does not do that. It is so full of holes and problems, and that is why Labour has expressed concerns about it.

We supported this bill to the select committee on the basis of supporting the intent, but at the time we expressed reservations at some of the measures in the bill. After going through the select committee process Labour abstained from voting in support of the bill because of our deep concerns. I am going to run through a list of what the deep concerns are about. First of all, the unnecessarily hurried passage of this bill through to select committee, and through that select committee process. I note that since then it has been sitting on the Order Paper for months and months, and it certainly is not being pushed promptly through the House, as the Minister said. Instead, in that select committee process, time and time again we on the Opposition side were blocked from seeking further clarification, from getting further advice, and from trying to clarify some of the more difficult parts of the bill.

There was a lack of wider views sought. There is a really important set of voices that is missing in the discussion on this bill, and those voices are the voices of young people—and they are the young people who will be most affected by this bill. Their voices are missing. In fact, a late submission provided to the select committee was not accepted by the select committee, and I am going to read a little bit from that submission by Sticks’n’Stones, which is a student-led project promoting positive behaviour online and standing up to cyber-bullying. Based in Central Otago, it is made up of students from secondary schools around that region. They said: “We are Sticks’n’Stones, a student-led digital citizenship project. We’re a group of teenagers with firsthand experience that words can hurt and be hard to escape.” They said: “Penalties like fines or even jail seem more like a scare tactic, rather than a solution. They may stop people from cyber-bullying out of fear in the short term, but they are highly unlikely to change the mind-set of bullies.”

That is one of the major points about this bill. It sort of started at the wrong end. It is punitive. It contains a new criminal provision that will criminalise young people, but there has been no education campaign, there has been no build-up, and there have been no resources put in to actually get to the target audience to try to change behaviours, and ensure there is widespread education in schools and amongst parents. Instead, the private sector has been left to do that, in the absence of Government input. That is one of the major flaws of this bill.

Secondly, there is the impact of new criminal provisions on young people. Clause 19 of the bill creates a new criminal provision called “Causing harm by posting digital communication”. Clause 19(3) states: “A person who commits an offence against this section is liable on conviction to imprisonment for a term not exceeding 2 years.” As the Minister confirmed before, this could bring 14-year-olds into court before a judge with the potential for a criminal conviction and a term of imprisonment. Yes, that might be rare, but that potential exists, and that potential exists for a cyber-crime—not a physical crime, but a cyber-crime. So if you go and write a nasty note and stick it in the locker of one of your friends, then that is not a criminal act, but if you write the nasty note online, then that could be a criminal act—although they are the same words. One of the big issues with this bill is that it is not aligning the physical environment with the cyber environment; it is creating a completely new regime around the cyber environment without the forethought and the deep thinking that needs to go into the ramifications and the unintended consequences.

There is a lack of detail about the role of the approved agency, a lack of detail about funding for that approved agency that would create the civil enforcement regime, and, as I said, a lack of commitment to funding a widespread education campaign. There are no funds allocated at all. In fact, I hear that there will be no funds, that this law is going to stand on its own, and there will be no corresponding education campaign.

This law does create international precedent. Despite what the Minister says, it does create international precedent. In Europe there has been a definitive trend towards relying on existing laws and upgrading the existing laws to address harms caused by the use of internet technologies. In the UK the House of Lords select committee on communications reviewed how the law deals with social media abuses such as cyber-bullying, revenge pornography, and trolling, and concluded that relevant legislation, such as the Protection from Harassment Act and the Malicious Communications Act, is adequate to deal with such phenomena. Well, why are we not relying on the existing laws that we have and upgrading them—which, to be honest, this legislation does do? Why are we not saying: “OK, that is the route we should go down, because that means it is in the physical environment and in the cyber environment.”? But instead, what has happened is that the previous Minister of Justice, Judith Collins, reacted to the Roast Busters issue and said: “We must do something. So let’s create a new cyber-crime. Let’s have that.” Well, the unintended consequences of that are being warned about and may be very extensive, and I am actually going to reel off a few of those unintended consequences because of the impact that they could have.

The bill could result in ridiculously false allegations. The bill fails to adequately acknowledge false allegations that no reasonable person would believe. Political satire could come within the realm of this legislation. We do not know—the definition of “harm” is so broad and is so untested that it could actually bring in political satire. It could bring in political criticism. So if, for instance, someone writes text messages or puts up tweets or Facebook statuses criticising John Key, might they, possibly, end up in court? Well, that might sound ridiculous, but, actually, Judith Collins herself wrote some unpleasant tweets about a journalist late last year that actually could have been demonstrated to fall within the realm of the cyber-criminal provisions contained in this bill. It could bring in robust debate and protest, whistleblowing, and social and political campaigns, as well as increasing the criminalisation of young people.

Finally, the workability of the “safe harbour” provision is significantly of concern. The Minister herself has acknowledged that, and I am pleased to hear that she is going to be doing some work on that. We understand that the Minister will present amendments at the Committee stage, but we do not know what those amendments will be. As the bill stands we cannot support it, and we will not be supporting it at the second reading. However, I am signalling today that if the bill passes its second reading, we will work with the Government in good faith to amend the bill in the Committee stage. We contend that the bill requires substantial amendments, not just technical amendments, but if those proposed by the Government do not address our fundamental concerns, then we cannot support it through the remainder of its passage.

I am very pleased to stand up to speak in the second reading of the Harmful Digital Communications Bill. I am, however, very disturbed by the contribution that has just been made to the House by the Labour member Clare Curran. I think what is really, particularly disturbing about that contribution is that, first of all, when one has a paucity of argument, one tends to attack the process, and there was a little bit of that. I have heard it before in other contributions from that member. There is a tendency to say: “We weren’t listened to.”, “We were blocked.”, and, you know, all of those things, but that is not a real argument.

So then we come to the real argument, which is—and I did take notes—that this bill will criminalise young people who are caught up in its provisions. I have to say that, although I did not sit on the Justice and Electoral Committee, which considered this bill, and this is my first introduction to it, I have done a little bit of reading—but I acknowledge that I did not go through the select committee process. But from my reading of this bill, what really disturbs me about that member’s and that party’s response to the threat of cyber-bullying is that they do not seem to have an understanding that young people should know right from wrong. I mean, is that not the job of a parent? Certainly, it was my job when I was raising my children. Do we not teach our children right from wrong? Is that not what parents do? Whether it is “You don’t go down to the dairy and nick sweets.”, or “You don’t cross the road against the red light.”, or “You don’t send abusive messages by text.”, is it not one of the basic tenets of our society that one of the basic things that we should do as parents is to teach our children what the decent thing to do is? And that includes not undertaking cyber-bullying, whether you are under 14 or whether you are over 14. I want to hear other Labour members defending that position, because I think it is indefensible.

The next contention, the next point of argument, that that member brought along was that there is no education process—there is no education process. Well, I tell you what, there is. There is a very strong signal coming from those parties that have got the guts to support this legislation through the House that cyber-bullying is not acceptable. I simply do not accept, furthermore, that member’s and that party’s argument. I am interested to hear other people from that party making this argument, which is an argument that is indefensible, that children are going to be caught up in the District Court system and caught up in the law. I mean, did they not pay any attention while this bill was going through the select committee and its first reading? My reading of this bill is that an agency is going to be set up with the express purpose of receiving complaints from individuals, complaints that will be managed and dealt with, inasmuch as they can be, without having recourse to the District Court. That is the whole approach of this bill—recognising therein that cyber-bullying and revenge porn and all those other activities are best dealt with, if they are being undertaken by young people, outside of the courts system. So I want to hear the counterargument to that, because to me the arguments that are coming from the other side of the House simply do not carry any weight.

This approved agency is being set up. I was trying to think of parallels that we already have. Maybe it is somewhere along the lines of Project Turnaround, or restorative justice. Those are the parallels that I am thinking about immediately when I hear that argument, where you get some really decent people in our society who will be appointed to this agency, the shape of which is yet to be determined, and they are the people who will receive these complaints. It will be done out of the public eye because we are dealing with kids here, by and large, and we are dealing with schoolkids here, by and large. They need recourse. Please do not tell me they do not, other side of the House. They need recourse, but of course it is not going to go straight to the District Court. It just defies sense to make that argument. It just simply defies sense.

So here we have an approved agency that can receive a complaint in its community. Let us have a look at what that complaint might look like. It might be something like revenge porn. It might be something like a boy and a girl swapping photos of an intimate nature. It all seemed fine at the time. It was all, you know, laughs and giggles or something like that until they break up, and then you get the Roast Busters scenario. So that person, perhaps supported by their parents, makes a complaint to the agency. The agency then decides whether there are grounds to proceed with an investigation, or if this is just simply a matter of a boyfriend taking revenge and immediately taking it down—or is it vexatious? Is it not worthy of complaint?

The argument came across that perhaps political satire would get caught up in this. Well, political satire is an accepted form of communication, and I simply do not believe that it will be caught up in this range, particularly when there are 10 statutory principles, which were recommended by the Law Commission, that have been incorporated into this legislation. Those 10 statutory principles are based on criminal and civil law and regulatory rules. I will read the list. They include that a communication should not “disclose sensitive personal facts about another individual.”; “be threatening, intimidating, or menacing.”; “be grossly offensive to a reasonable person in the position of the affected individual.”; “incite or encourage anyone to send a message to an individual for the purposes of causing harm to that individual.”; “incite or encourage another individual to commit suicide.”; or “denigrate an individual by reason of his or her colour, race, ethnic or national origins,”—and so it goes on. I do not think political satire belongs in that list, so, again, I would like to hear the arguments. Are we so sensitive that we are going to object to political satire? I think we need to be a little bit more grown-up than that.

So young people can make a complaint to this agency. It is done in private. It is done with confidentiality. Hopefully, the issue can be resolved to everybody’s satisfaction. It remains private. People learn a very good lesson and carry on with their lives. If the agency feels that the issue cannot be resolved in a negotiated manner, then there is recourse to the District Court. The District Court will have powers to require individuals or organisations to take down offensive material, and those organisations themselves will have recourse to the High Court to contest that.

I simply reject the arguments promoted by the Opposition members. I think the members entirely miss the point. Whether that is wilful or they just entirely miss the point, I am not sure. But if there are good, strong arguments for not supporting the very measures that are going to protect our young people from cyber-bullying, then I want to hear them. Thank you.

It is my pleasure to speak in the second reading debate on the Harmful Digital Communications Bill. It is also a pleasure to speak at a time when National members claim to have a monopoly on the virtues of right and wrong. If you look at their recent history, what they do have a monopoly on are the virtues of wrong. If you look at what they have done with the Government Communications Security Bureau (GCSB) and at the way they use that, and at the evidence that has come out that they used it for the wrong purposes of trying to further the career of Tim Groser, and if you look at the virtues of them being wrong with regard to the pork barrelling that is going on in Northland, you would think that they had the monopoly on what is virtuous and right. But after that—

💬 Mr DEPUTY SPEAKER: Bring it back.

—contribution from Jacqui Dean, I think you will see from the evidence that has been presented by this side of the House and through the media that they do not have a monopoly on the virtues of what is right and what is wrong, but that they simply have a monopoly on what is wrong at the moment.

It was a disappointing contribution from Jacqui Dean because I think we deserve better from the Government. This is an issue that is important. She did make mention of our youth, but it is absolutely paramount that we get this issue right for our youth. It has been a short time since I left high school, but technology has advanced so that these things here and the internet are ubiquitous. We are growing up in very different times. My teenage niece faces much higher pressures around social media than I would ever have had to. I got bullied; everyone in the House probably got bullied when they were at school. But we dealt with it face to face. These days the internet and these things take bullying to another level. These days we have to protect teenagers in an effective way to make sure that their lives are as good as they can possibly be, given the ubiquitous nature of the internet, online, text messaging, and email. We on this side of the House do not believe that the bill as it stands right now is an effective way to make this country and their lives as safe as possible when they interact online—whether that be via email, whether that be via text messaging, whether that be via Snapchat, Facebook, or Twitter. We want to make sure that there are effective measures to make sure that our young ones especially are safe.

This bill has come out of a Law Commission report. It commissioned some of its own research, which, I believe, found that about 10 percent of young people have been prone to some kind of online bullying. When it narrowed the numbers down to between, I think it was, around 14 to 29, that number went up to about 22 percent. So online bullying or cyber-bullying is an absolutely real issue for our young ones. So I am a bit disappointed in the Government for making this a political issue, because I think there is an onus on us to make sure we get this legislation right. There was an attempt by Government members to pre-empt what was going to come from this side of the House, saying: “We’re disappointed that the Labour Party does not want to support this measure for our young people.” Well, if this Government were serious about these measures—this bill was introduced in December 2013; the select committee submissions closed in February 2014; that process was rushed; and this bill has been sitting on the Order Paper for months and months and months—if this Government over there were serious about protecting our youngsters from the harm of cyber-bullying, we would have seen this legislation much earlier.

But you have got to look at the DNA of this bill. It was introduced by Judith Collins, who, in her tenure as Minister of Justice, Minister of Police, and Minister of Corrections, was all about introducing bills of the justice nature that looked tough but that actually did not do a lot. We have got another version of that here. I did not sit on the Justice and Electoral Committee but I read a number of the submissions and the papers that the Ministry of Justice put forward to the select committee. There were a number of details in the bill that would have made it effective but that were completely absent from the bill, and that can be seen in the nature of the penalties that were placed in the bill. There was some debate as to whether or not they were appropriate given the nature of some of the crimes that have been proscribed in the bill. Some debate was had about whether or not they marry up with other pieces of legislation. I put to this House that that is one example of where the Government was making up the legislation as it went along, because if it had been doing this properly, everything would have lined up. But the select committee had to go backwards and forwards with officials to make sure that those things married up. If the Government had been serious about getting the details right in this, that process would not have happened in the select committee stage.

Another example of that relates to what powers the approved agency has—what it can do. The select committee sorted out what the approved agency will do and can do; not the Government in putting forward this bill. It was the select committee, which filled in the detail of what an approved agency can do, and it still does not know what it is going to do. It still does not know where that approved agency will sit or who it will be. One year there is some talk that this agency might be the approved agency, and then the next year that that agency will be the approved agency. This is another example of this piece of legislation just being put out there to try to be popular at a time when the Government was on the ropes with Roast Busters.

I go back to my earlier submission: this is a piece of legislation that we need to get right for our young people. For the Government to say that this side of the House does not care about preventing harm for youngsters, in terms of cyber-bullying, is just nonsense. We want to sit here and get the legislation right so that we do not have to come back and make the changes that really need to be made in this bill. There may be a glimmer of hope that the Government might see that in the Committee stage and that it might actually make the amendments that are necessary to make this piece of legislation effective, because the way that it stands now, it is not. I will not bore the people at home who are watching this instead of the cricket tonight with the process, but if a complaint gets serious, it will end up in the District Court. Our District Courts are already inundated with a whole lot of other work, which they are struggling to do. So what we are asking our District Courts to do—they are under a lot of pressure and they have had budget cuts over time—is to take on more responsibility on complex cases and to make rulings on them. So, in reality, how effective is this piece of legislation, when it has asked the Districts Court to do much more, to take on new responsibility, but we are not funding them for that. Oh no, heaven forbid. They will do it for free. They already have a huge workload, which they say they cannot handle.

This piece of legislation has been rushed and still has plenty of holes in it. We would hope—and I think Clare Curran has already suggested this—that the Government might reach out and try to make the amendments necessary in this bill. Because as it stands right now, it is just punitive, and there is no resource in terms of education and preventative measures to make sure these kinds of things do not happen in the first place. The Minister is wrong; in overseas jurisdictions there is resource put into prevention and education to try to reduce the harm. But nowhere in this piece of legislation, as it stands right now, do we see any commitment from the Government to serious and effective education prevention on cyber-bullying. In terms of its police portfolio, this is a Government that sings to the top of the hills that it is prevention first, but in this growing area of cyber-bullying we are not seeing any resource or any effective measures being taken when it comes to looking after our youngsters. There is some work to do to make this piece of legislation effective. We would hope that the Government recognises this, and that in a mature way we will engage with, it will take up the offer to make the piece of legislation effective, because as it stands now, it is not.

When the previous speaker, Kris Faafoi, was referring to all of the people who would be watching at home tonight, I thought we were going to get a “Hi, mum.” out of him actually, to be honest, because his mum and my mum might be the only ones who are watching—if they are not watching the cricket.

💬 Kris Faafoi: No, no, she’s definitely not watching.

No, I do not think mine is either, to be fair. But anyway, the Harmful Digital Communications Bill is a really important piece of legislation, and I am really happy to stand and take a call on it. I think one need look no further than the purpose at the beginning of the bill to be able to agree with this bill and to be able to get behind its intent and what is trying to be achieved here. Clause 3 states that its purpose is to “(a) deter, prevent, and mitigate harm caused to individuals by digital communications; and (b) provide victims of harmful digital communications with a quick and efficient means of redress.”

I think it is really important that we do these things. So often in the past things like bullying were swept under the carpet. In fact, in days gone by it was, perhaps, almost an accepted part of society, and I think we have moved on as a society to say that we are not going to accept that. But over the passage of time that bullying has been around, and even—as the previous speaker alluded to—in the short space of time since I left school, things have moved on. Technology has moved on, and our legislation for dealing with the ill-effects of bullying also needs to keep up with those changes in technology. I was thinking about when I was at high school, a couple of moons ago, that if somebody wanted to circulate—

💬 Carmel Sepuloni: A couple of moons?

Yes, at least a couple of moons.

💬 Hon Member: A blue moon.

A blue moon—no, it was not that. It was a long time ago, anyway, since I left school. If you wanted to circulate some sort of offensive picture of somebody—of something that just happened to happen—you would first need to go and find a camera, then go and take a picture of some description, then wait until your film was finished, then go down to the local chemist shop and get the photo developed, then either put it on a Gestetner machine or, perhaps, a little bit further on, go to the photocopying place, photocopy it, and then go and distribute it to as many people as you could find. There was not a lot of that going on in those times; but nowadays, of course, it is simple. If somebody sees something that they think could catch somebody in a compromising position, they can simply whip the phone out of their pocket—which most people carry—take a photo and instantly have that compromising photo, or whatever, circulated right around the globe.

So, although in the past we had this stuff going on, as I said, it took multiple steps; we can do it quickly and easily now. It was no less harmful in the old days if somebody took those measures but usually, as has been alluded to previously by speakers, old-school bullying, if you like—that is the way to describe it—was often instantaneous and easy to deal with instantly. But, actually, in this digital age things can be said, circulated, and control lost of the offending statements or pictures or whatever. They can be spread far and wide, and that maintains the harm over a longer period of time for the victims.

I spent a period of time as a high school guidance counsellor, and although at times my office felt like an episode of Dr. Phil, with some of the types of things that kids used to come in and talk to me about, there were at times some very serious issues that I had to deal with. Those were often to do with bullying and the impact of young people’s behaviour on one another. Even 15 years ago—it was only the start of the cyber age, I guess; texting was just becoming a bit fashionable—we were starting to see that kind of thing come into play. I saw firsthand the impact of such behaviour on young people. I think, then, it is beholden on us to ensure that we have things in place to protect those young people, and to deal with those issues when they are confronted with them.

There has been a lot of focus today on, and tonight I have heard people talking about, the criminal aspects of this and how it is going to laden the District Courts with more work, and all that kind of thing. Well, if that is what is required in order to clean it up, and if we are not going to pass laws because they are going to make courts busier, boy, are we on a slippery slope as far as making legislation is concerned. This is not just about complaints that can be taken to the District Court, and I think that is the beauty of this legislation. At the moment, if somebody does want to make a complaint, really, it is very hard to deal with it other than by formally going to the police and going through the court system to get it dealt with. But this legislation empowers the establishment of an agency that is able to deal with these matters in a more timely way—and perhaps a more appropriate way—than going through the District Court system.

I have heard people on the other side of the House saying: “Well, we don’t know what this agency is going to do. We don’t know how much funding it’s going to have.” We do not always have to set those things up before we pass the legislation to empower it to be set up. We need to actually pass this legislation. We need to keep it moving through the process so that we can empower an agency to be set up, and we can sort out the details once we have got this foundation stone—which is the legislation on which to build this agency—firmly planted in the ground.

I believe the agency itself will provide a buffer when addressing some issues. It will mean that you do not have to go directly to the police or directly to the courts and go through all of the strict legal process involved with that. I think that the processes and powers that have been given to the agency by this legislation are sensible and that they deal with things appropriately. The functions and powers of the approved agency will be, firstly, to receive and assess complaints about harm caused to individuals by digital communications—that is good. Secondly, the agency will investigate complaints—well, of course complaints need to be investigated. I think this is an important factor that has been brushed over a little bit in the dramatic debate happening on the other side of the House. They are saying that it is going to impact on the courts and that it is just going to make criminals out of all sorts of people. Clause 8(1)(c) is incredibly useful because the agency is empowered “to use advice, negotiation, mediation, and persuasion (as appropriate) to resolve complaints:”.

As I alluded to before in the experiences that I used to have in my high school guidance counsellor’s office, there was sometimes dramatic action that needed to be taken and appropriate authorities that needed to be notified in cases of sexual abuse or otherwise, and there was a process to go through. Sometimes, as I said, my office looked a little bit more like a Dr. Phil episode, and so you needed to negotiate, and mediate, and persuade, and resolve complaints as required. And so for those offences that are on the lower threshold of the types of behaviour that we are talking about in this legislation, that is entirely appropriate.

I want to commend this bill to the House. I also want to say that the establishment and provision within this process of professional leaders in schools is also a really important part of the puzzle. Young people—and there have been lots of talk about this lately—do not always have the confidence to go and lay a complaint themselves. It can be a big deal if you have been bullied, if you have been the victim of this kind of behaviour, to necessarily stand up and say it is not OK and to go and try to take some sort of action about it. In the past, professionals like teachers and principals or otherwise have been able to support students to take those actions. They have been able to encourage them to take those actions. But this legislation, with the consent of the student involved, actually allows that professional leader within the school to actually go and lodge the complaint themselves on behalf of the student. I think this is a critically important piece of this bill, because what it does is it takes the onus off the young person from having to step up, to actually put themselves forward and perhaps face further humiliation, and enables them to come in behind the protection of a professional leader who will act on their behalf.

This bill is sensible. This bill is exactly what we need to do to start working harder to keep our young people safe and to improve outcomes for young people in Aotearoa New Zealand. Thank you.

I must say it has been interesting in these last few weeks to see the level of interest and activity around the Harmful Digital Communications Bill. It has sat for some time. The Justice and Electoral Committee reported back, from memory, in about May last year. An election intervened, of course, but the bill has sat relatively unmolested for some time. But of late there has been some obvious interest, and, particularly, industry interest. The industry seems to be going to some pains to ensure that we as politicians are well informed. I think I have to acknowledge the Minister of Justice and her comments in the introduction that the larger companies—Google and Facebook and the like—that will be affected by this legislation are not actually public service organisations; they exist to make money, to make a profit. It is interesting that the Productivity Commission noted that regulation does impose compliance cost on some of these digitally based organisations. Frankly, I am quite happy for that to occur. Generally, I am not an enthusiast for imposing costs on business, but if a small cost on business generates a positive social benefit—particularly when large multinational organisations are involved—then, frankly, I have no concern with that.

I was on the select committee for this bill. It was a good select committee. It was a very engaged select committee. The bill that came out was notably different from the bill that went in, and it was a better bill. It was a very engaged, very vigorous conversation. I think, as I said, that the bill that came through was better and much improved. Having said that, I am quite sure that this bill is imperfect. Seldom, I think, do we get it absolutely right the first time when legislation goes through this House. But I do believe that this bill is sufficiently good and fit for purpose to merit our support, and the Greens will continue to support it. We are interested to see the Supplementary Order Paper that we understand will be forthcoming and we will engage with that in later readings, obviously.

I would just like to refer specifically to some of the objections we have heard. We heard a bit about this notion that this bill will criminalise children. We have an age of criminal responsibility in New Zealand of 14. That does not change. I have not seen any appetite from any stakeholder in this conversation to criminalise children. Clearly, it is a theoretical possibility, but it would have to be extremely high-end offending and continued offending, I think, before any child would suffer the penalty from a court. There has been commentary about education or the lack of it. I can say that one of the first changes the select committee effected was in clause 3, the purpose clause of the bill. Right there at the nub of the bill it inserted the words “deter, prevent, and” before “mitigate harm”. The conversation about that was absolutely to do with the necessity of educating. The best cure, of course, is prevention and the new wording of the purpose clause reflects that commitment to doing that. I must confess I am slightly puzzled by the objection that there is nothing in the legislation that indicates where the educative activity will come from. To me, it is blindingly obvious that one of the core functions—and it is written into the bill—of the approved agency is that it will have a responsibility to educate in the same way as the private sector is already doing, as are NetSafe and others. I think Vodafone is worth a special mention. It has a very active educative programme targeted well at kids, their parents, families, schools, and the like. So I do think that that objection has been somewhat overstated.

We have heard a bit about the fact that other countries are not going down this road of creating criminal offences. I have done enough comparative research around corrections, around policing, and around justice issues generally to realise that you have to tread a bit cautiously because, inevitably, legislative regimes are complex and multifaceted. I think you really need to know and understand the breadth of a particular regime before it is useful to make comparisons between one and another. I am somewhat persuaded by the fact that our Police Association has identified that there is a gap in the legislation. It is quite relaxed that if I go online and threaten to assault somebody, damage their property, or do some criminal harm to it, then, clearly, that is an offence. There is no question with that. Low-level bullying, the sort of schoolyard thing, has always gone on and always will, and we have means of dealing with that. But with this notion of causing harm through digital communication, the Police Association, in its submission, pointed to a gap in the legislation that is impeding its ability. The appeal from the association was to give it the tools and it will apply them appropriately. The Human Rights Commission made a similar commentary that there is a gap in the legislative tool kit, that offences or offending are not able to be addressed clearly and with a degree of timeliness, and that this new legislation is necessary and useful to plug some of the gaps in that.

Clause 19, of course, is the clause that creates this new offence of causing harm, and I think that it is important to note that, effectively, there are three characteristics of the offending that must be proven. The first is that there must be a proven intention to cause harm. The second is that it must be proven that a reasonable ordinary person would suffer harm as a result of this. So it is a somewhat objective test: is this something that crosses that threshold? The third is that actual harm did result from the digital communication. So intention is not enough and potential is not enough. The three characteristics are conjunctive. You must prove intention and the likelihood of offence or harm being done and the actual harm being done.

We have heard some comments about concerns that satire, for example, might be stifled by this legislation. Again, I do not accept that because in clause 19 it again talks about the context of a particular communication. If any one of us sees reporting on The Civilian website, for example—there was a case, I believe, where one Colin Craig was “quoted” on that website as having said something that, of course, he had not said. It is a satirical website. Any reasonable person reading such a website would be alert to the context in which that statement is made, and that, to me, would pull the teeth of any attempt to bring a criminal charge against such a person. The age and circumstance of the person who allegedly is being offended against or at whom harm might be directed are factors. Again, with politicians, if somebody has a little bit of a crack at us on Facebook or suchlike, we are expected to have a thick skin. We are public figures, mature adults, and people of some authority. It is expected that the threshold would be significantly different for any one of us in this House from what it would be for a 13-year-old schoolchild, for example. I think that is entirely appropriate. I do think that the qualifications, if you like, the extremity of language, the age and characteristic of the victim, the context, as I have mentioned, and the anonymity—for all of those things I do think that there are protections already built into the bill that can assure us that it will not be misused or abused.

As I said earlier, the Human Rights Commission came out strongly in support of this bill. We have heard a bit about some concerns that we are creating offences in the digital environment that do not exist in the real world. The Human Rights Commissioner quoted a 2011 report to the UN General Assembly from a UN special rapporteur who talked about the unique characteristics of the internet. It is a unique environment; it is not the real world, and I think we are slowly reaching towards a legislative regime that recognises the uniqueness of that environment and seeks to address the inevitability, really, that it will be used inappropriately to cause harm to people. And that is something that this bill seeks to remedy.

I am also comforted by the fact that the bill specifically states in clause 6, where it refers to anybody exercising functions and powers of the bill, that they must be consistent with rights and freedoms contained in the New Zealand Bill of Rights Act. There are not too many pieces of legislation that specifically identify that obligation to be compliant with the New Zealand Bill of Rights Act. I do think that it is almost a belts and braces approach. I think it just recognises that we are feeling our way into new territory here. I do not think we need to resile from that. It is a new environment, it is a new set of situations that we are addressing, and I am comforted somewhat by that specific reference to the New Zealand Bill of Rights Act. I look forward to participating in the Committee stage and the later debates on this bill. Thank you.

Kia ora, Mr Assistant Speaker. Earlier, just before this debate began, I moved a motion that sought to send this bill, the Harmful Digital Communications Bill, back to the Justice and Electoral Committee. New Zealand First did that not because we oppose the intent of the bill and not because we believe that steps need to be taken, but because we have concerns around one particular part of the bill, which we were seeking to have the select committee look at again in the light of new legislation that has come into play internationally since the select committee passed this bill back to the House. I accept the Minister of Justice’s statements—I think they were interesting—around international organisations such as Google and so on and so forth. Certainly, in this bill, appropriately, there are requirements for the service providers. There are takedown notices and there are pieces of this bill that directly go to their responsibility around protecting the users of that environment. We 100 percent support that—100 percent support that. So, if the suggestion is that somehow New Zealand First has been purchased by Google, no, that is not quite right.

What we have concerns around is this. If I go to the purpose of the bill, the main aim of the bill is to “mitigate harm caused to individuals by digital communications and (b) provide victims of harmful digital communications with a quick and efficient means of redress.” This will be achieved by, first, creating a new civil enforcement regime to quickly and effectively deal with harmful digital communications; second, make some small amendments to existing legislation to clarify its application to digital communications and cover technological advances; and, third, create new criminal offences to deal with the most serious harmful digital communications. It is the third one that we are seeking more confidence in. It says here: “In respect of the offence of causing harm by posting digital communication, a person who is convicted of that offence is liable to imprisonment for a maximum term of two years.” There is now no fine penalty provided, only imprisonment. This is the concern. Are those settings right? Do we have it right? That is all New Zealand First was asking for. All New Zealand First was asking for was for the bill to go back, in the light of other legislation that has been passed in other nations, to make sure that we are not taking that step too far in the first instance.

It is very emotive to use the Roast Busters case. It is very emotive to use it. The reality, and I think what was interesting in the Minister’s statement, was that she acknowledged that a criminal act had taken place, and yet with all the laws that are there, nobody has been brought to justice. So to say that this is the answer to Roast Busters is not fair, and to say that this was a criminal act and that this bill would solve that is not fair. It is emotive and it is inappropriate. The Minister has also been quoted: “However, Minister Adams says children—or those under 14—cannot be charged with the offence.” She is absolutely right. The Minister is absolutely right. We acknowledge this, but I want to give an example of a real-life situation. A 15-year-old male was at a sports day and took a photograph of a 15-year-old female jumping over the high jump. He pasted it on his Facebook page. The father of the 15-year-old female—she was wearing shorts, she was in her PE gear—took offence at that photo and contacted the school and wanted the young man stood down and put into the discipline process. The young man was horrified and in this instance took down that photo immediately once he was brought in by the principal and spoken to. That father was not happy with that response by the school, and he wanted that child pursued through the discipline process of the school, to be made an example of—made an example of.

💬 Jono Naylor: Does he go to St Bede’s?

Exactly. A member of the Government has just shouted out “He should go to St Bede’s.” That is exactly what my point is—that is exactly what my point is. That parent at that time had no legislative ability to make the school do anything, lay any charges, or go any further.

Let us talk about the approved agency. Is the Government confident—and the member Mr Naylor read out about the powers of the approved agency. They are not actually powers. They are a very good idea. Let us just get this out in the open: we 100 percent agree with the approved agency, and we believe that this work is possibly the answer without this next step. It is the next step we are wondering about. Miss Dean’s contribution made the suggestion that the approved agency would decide whether the case could go forward. Actually, the police decide whether a case goes forward, and those are the Minister’s own words. The decision to prosecute anyone rests with the police, who are required to ensure prosecution is in the public interest. I would challenge the fact that if a father showed up with a very high-priced lawyer and pushed the point, whether they could use this legislation as a tool to take that young man forward. That is the concern, and all we were asking for was an opportunity to discuss it further in light of the other legislation that has been made.

NetSafe, for example, is currently filling the role of the approved agency as best it can without any formal structure or funding. In 2014 it assisted over 800 people dealing with harmful communications even though it does not advertise or promote that service. It has also been liaising with Australian politicians and their partners at the Australian Communications and Media Authority as they established the Children’s e-Safety Commissioner function under the recently passed Enhancing Online Safety for Children Act, which has many similarities to the Harmful Digital Communications Bill—many similarities. This puts NetSafe in a unique position to describe the current situation and provide insights into what difference this bill could make. All we were asking for was the opportunity to go back and hear from people like those at NetSafe who are working in this environment to make sure we have got this right before we put in another piece of legislation that can turn people into criminals. Absolutely we must address this, but are we addressing it correctly, and that is where New Zealand First is coming from.

New Zealand First will oppose this bill at this reading. That does not mean we will oppose it all the way through. What we are seeking is further assurance. What we are seeking is confidence that we are not going to criminalise children. We are confident with many of the other things inside the bill.

💬 Hon Amy Adams: Should we remove all criminal offences against young people? Is that your position?

The Minister shouts out “Should we remove all criminal offences?”. Unfortunately this is where we have ended up. We have ended up where the Minister will not discuss. The Minister goes on the defensive and the Minister starts to shout out. At this time New Zealand First has made no political statements about this bill. New Zealand First has made no political marks about this bill, and has not attacked the Minister in any way, shape, or form, but the Minister, interestingly enough for a bill that is about anti-bullying, has chosen to decide to be defensive and start to abuse. So what is very, very interesting is—

💬 Hon Amy Adams: Tracey, you never asked to meet me. Why didn’t you just ask to meet with me?

And the Minister knows that I sent her an email yesterday, along with all the other people, and the Minister had an opportunity to come back to me around those concerns and around that bill, but the Minister chose not to. The Minister has chosen to go on the defensive. I hope that the Minister is that confident. I hope that the Minister, if this should catch any of our young people or any of our citizens, is that confident that these settings are right. But New Zealand First, at this time, is not confident that these settings are right. We would like more confidence that we have—that the select committee actually had the appropriate information given to it. In light of other countries, other organisations, and other nations going to a place without any criminality in it, we would like to think that possibly we may need to just take a breath and have a look at it, but I am not going to hold my breath on that. I wanted to explain that for those not watching the cricket, and I explained it in an email to the Minister and every other member of this House yesterday. I sent them a two-page paper explaining our position, but not a member of the National Party bothered to contact me or ask anything about it, so I explain it now, and perhaps they might go and read their emails to double-check on that.

Thank you, Mr Assistant Speaker, for the opportunity to speak on the Harmful Digital Communications Bill’s second reading. Before I get into discussing this bill I want to reject the argument that was presented by the member who just resumed her seat, Tracey Martin. It is very unfortunate that that member and her party, New Zealand First, are not supporting this bill. Also, I heard from a member from that side that they are talking about prevention and saying that this bill is not about prevention, but this bill is about both prevention and dealing with the crisis situation. The purpose of this bill is to deter, prevent, and mitigate the harm caused to people through forms of digital communication and to provide victims of harmful digital communication with an efficient and quick means of redress.

Our work life and our social life in our current day and age are not the same as they used to be for my parents when I was little. I remember those days. It used to be about sending and receiving letters delivered by postmen. Phoning used to be from a landline to another landline. I still remember that we used to dial the same number many times to get through to that number after getting through to so many wrong numbers. So the best way was meeting face to face with people for work and the social part of life as well. For any urgent matters it used to be a telegram. That was the fastest way of communication when I was growing up. I grew up on air force bases—my dad was in the Indian air force—and I remember a personal telegram used to mean bad news. It used to mean that somebody in the extended family had passed away or there was someone who was seriously ill in the extended family. As soon as the news was out that there was a telegram received by a family on the air force campus, other families around would gather and quickly rush to that family to see what needed to be done to support that family. This was without seeing the content of the telegram because it was assumed that telegrams were always bad news. So that was how that fastest way of communication was used.

But then came the internet, mobile phones, and the digital technology that we are experiencing. This is not just limited to our work; it is in our social life, in our personal life. I am a mother of two kids and I know that kids want access to the internet because they want to do homework. For homework they need the internet. They want access to mobile phones and other digital technology to stay in touch with their family members and their friends. This is by texting, calling, Facebook, and a number of other social media trends that come in and out of relevance. Moreover, the advancement of technology is such that day by day these things are becoming more and more affordable. So the question is about harmful digital communication and cyber-bullying.

The Law Commission in its report in 2012 found that one in 10 New Zealanders has experienced harmful digital communication on the internet. There was a close relationship with age as the numbers doubled for those aged between 19 and 29. Our research also shows that one in five New Zealand high school children experience cyber-bullying or harassment. Bullying is not a new problem but cyber-bullying and harmful digital communication are definitely a newer problem. The National Government is setting various measures to stop bullying and minimise the impact of cyber-bullying on our people, especially our young ones. Everyone, actually, old or young, deserves to feel safe in their homes and communities. The devastating effect of cyber-bullying should not be underestimated. It is very disturbing, especially for our young ones, because it contributes to a lot of other problems such as increased truancy, failure at school, and many other social and emotional problems.

But schools need new technology for teaching and learning purposes and to help students manage this rapidly changing social environment that comes with it. Cyber-bullying is an increasing concern for schools, students, and parents. It is time that cyber-bullying and harmful digital communication got this attention, with the intent to update our legislation for digital communication, so that digital harassment becomes part of our legislation and is covered by the relevant criminal law and so that there is a process that clarifies how to take up such complaints and enforce a regime that will stop harmful communication and provide protection to victims of harmful digital communication. This is also to futureproof our legislation to the extent we can see what is coming next. After the Law Commission’s work on harmful communications, as part of its report on new media called The News Media meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age, in 2013 the National Government announced a number of proposals to tackle cyber-bullying, and those proposals are part of this bill.

The bill, along with other things, will create a new civil enforcement regime that includes appointing an approved agency to receive and, where appropriate, investigate complaints. The agency will be able to investigate and resolve complaints, and this will be done directly and quickly, but more serious kinds of complaints will be referred to the District Court. The bill is also to provide a legislative mechanism for people to easily and quickly request the removal of harmful content that is put on websites or on to some online sites. It makes it an offence to send harmful messages and post harmful material online. For example, where it is grossly offensive, indecent, obscene, or knowingly false, this will be punishable by up to 2 years of imprisonment. This is about sending that strong message that cyber-bullying or harmful digital communication is not acceptable.

This bill is to amend the Harassment Act, the Privacy Act, and the Human Rights Act to ensure they are up to date for digital communication, as some of our legislation was written before this digital time. We believe that when it comes to digital communication we need to have good legal options to take up such complaints and to deal with them. People may be hesitant to lay their complaint with the police, and the police may not have the mechanisms in place to investigate and prosecute such cases. In some situations victims might not know who is sending these messages, because it is very easy nowadays to hide phone numbers or contact numbers, and people may not know who is responsible for posting things online as well. In these situations complainants can ask the approved agency to investigate. The agency could pass on a request for removal, modification, or correction of the harmful communication to an internet service provider or other appropriate internet entities like Facebook, Twitter, or Google.

The next question that I would like to address is what happens with people’s right to freedom of speech. Section 14 of the New Zealand Bill of Rights Act 1990 guarantees the right to freedom of expression. However, it is not an absolute right, and freedom of speech does not automatically undo offences and protections set out in other laws. So, therefore, these new proposals in this bill are consistent with the New Zealand Bill of Rights Act. This bill is to address and tackle the growing problem of cyber-bullying, and it covers all aspects, actually. It covers all aspects thoroughly by amending related legislation.

Finally, I want to say that I am not on the Justice and Electoral Committee, but recently I had the opportunity to be subbed on to it. That gave me a very good opportunity to get some insight into the work that is being done by that committee. It is a great privilege to be able to speak on this bill that is assigned to the Justice and Electoral Committee. I support this bill and commend it to the House. Thank you.

The next call is a split call. I am calling Gareth Hughes—5 minutes.

Kia ora, Mr Assistant Speaker. Ngā mihi nui ki a koutou. Kia ora. I would like to greet the six people watching the broadcast because I suspect the rest of the country is watching the cricket at the moment. It is an important topic we are discussing tonight, the Harmful Digital Communications Bill. The issue of bullying in general—no doubt, all of us have experienced it to a greater or lesser extent over the years. Sadly, it is pervasive in our culture and in our history. There is a legitimate public debate around the nature of it, given our online environments that we live in—and have for many years.

I want to raise a few questions for the Minister of Justice, because, obviously, the Green Party is supporting the bill at this stage. But we have got to say there are some concerns when we are dealing with internationally unprecedented legislation. We saw a fast select committee process, additional evidence not considered by that select committee, and intransigence by the Government benches to not have a second look at a select committee. We have heard of amendments to be introduced in the Committee stage. I think they should be referred back, as the member Tracey Martin attempted to do, to a select committee where they could be considered, because there have been international developments, which have been picked up on by other members. We have seen Australia avoid the criminal offence approach at the heart of this legislation. All members in this House agree with the intent—

💬 Hon Amy Adams: They’ve already got it, Gareth. It’s already in place in Australia. That’s why they haven’t put it in this bill. They’ve already got it.

It is a different place. So Amy Adams wants to run out, on her own, do something entirely experimental and unprecedented, and then she will not listen to the public, will not listen to the experts, and will not put it through a select committee. The Minister, I think, should take her time and do it in a considered fashion. Let us look at across the Ditch. The fact is the Australian Government has created a Children’s e-Safety Commissioner. The fact is it has avoided a criminal offence. Let us look at what is happening across there and let us actually take our time. If there is going to be a debate, I do not know why the Minister is afraid to have that conversation at a select committee.

I want to address some of the points raised in this debate. The fact is there are existing remedies. NetSafe, the approved agency currently, with no advertising, has informed me recently that it has dealt with 800 cases in the last year alone—800 cases. What we are seeing is people saying there is nothing that can be done about this new, scary threat. What are we going to do? On The Simpsons people would say: “Won’t someone think of the children?”. But the fact is that 800 cases have already been dealt with in the last year. Take the Roast Busters case. Here is an area where the police, in their wisdom, put a preservation order on the material, and did not request it to be taken down. Take that sad case of the drunk 9-year-old, on YouTube. Here again, the police blamed YouTube but did not get in touch with it. I would like to acknowledge the work done by our tech companies in New Zealand, and their guidelines. This is where the education debate is so important. We should be educating our police. We should be educating our education officials. We should be educating the public on existing remedies.

As I reiterate, there is a legitimate public debate. Everyone in this House agrees with the intent. We want to reduce the impacts and the harm caused by cyber-bullying. But there are legitimate public debates around making it a criminal offence, around the avoidance of decades of statute defences—for example, the Harassment Act or the Defamation Act—and a legitimate debate around education. Of course, the Government did not have to put the appropriation in this bill, but signalling how much money it is actually planning to spend on education, I think, would be useful, and a valuable contribution to the House and the public. Looking across the Ditch again, there is $7.5 million in extra funding there.

The last point I want to raise is the idea that something happening online should be a different offence to something happening off-line. We have heard discussions around telegrams. It would be ludicrous to think of a law against bullying on telegrams. It would be ludicrous to think of a law against bullying on the telephone. It would be ludicrous to think of a law against bullying by using Morse code. This is an important topic. The internet is incredibly valuable to our economy, to our society. We need to go into this field and, with the power of legislation, form an Act to consider it. That is why it is disappointing we have not sent this to a select committee, particularly on the latter point, when the UK House of Lords has rejected this entirely. The UK House of Lords says that what is not an offence off-line should not be an offence online. In summary, I would like to acknowledge the Government’s intention and the intention of all members in this House. No one in this House wants to see cyber-bullying. The debate is around the solutions.

I call Sue Moroney—5 minutes.

This is a split call on the Harmful Digital Communications Bill, but we also have a split in the positions that the two parties are taking. Although I want to share and reiterate some of the concerns that the member for the Green Party Gareth Hughes, who has just resumed his seat, has talked to the House about, the Green Party is supporting this legislation whereas the Labour Party is opposing it. Of all the Ministers in that Government I would have thought that it was this particular Minister, the Minister of Justice, who would have an interest in actually getting this legislation right—getting it right and talking with the other parties so that we can get it as right as we possibly can.

The reason why Labour is opposing this bill is that we have a deep concern about cyber-bullying and we want it to be dealt with appropriately and properly. The consideration of this legislation has been rushed. The select committee process was rushed and submissions—very important submissions—were not considered. The Labour Party wants to make sure that when we address this issue we do not have to come back and relitigate it in 2 or 3 years’ time. We want to make sure that we can get it up to speed, as much as we can in a fast-changing environment, and do that now.

I think the Minister may have been having a crack at me before in her speech when she talked about members who vigorously opposed the way in which the sexual violation of young women was spread around on social media, where the perpetrators of that crime actually used social media to gloat. I do not resile for 1 minute from that position. But here is the rub, Minister. I am informed that this legislation will actually mean that any objectionable material like that has to remain there for public viewing for 48 hours before it gets taken down. And here is the irony. At the moment those providers can take that offensive material down straight away.

💬 Hon Amy Adams: They still can.

That is right. They can right now, Minister. That is the point. And the bill will exacerbate that. So until that issue is resolved, until that issue is addressed to the satisfaction of the parties across this Parliament, I think it is right and proper that we oppose the bill until some of those concerns are addressed.

The Minister’s approach is to scream and yell and bellow across the debating chamber. That actually is not going to address the issues.

💬 Hon Amy Adams: You rely on wrong information.

What I would like to invite the Minister to do is to engage with the Labour Party to address our concerns.

💬 Hon Amy Adams: I’ve been trying. Unfortunately, your member won’t.

Well, so the Minister is agreeing that she will actually—

💬 Hon Amy Adams: I’ve said if there’s agreement for the core principles, yes; if there isn’t, then no.

So the Minister is saying that she will engage with us only if we vote for her bill. Is that correct?

💬 Hon Amy Adams: I’m saying if you agree on core principles, then it is worth working together to get it right.

Well, we do. We do agree on core principles. So there is a great way forward. I just want to make sure that the Minister is agreeing to meet with the Labour Party to address our concerns.

💬 Hon Amy Adams: Vote for the bill if you agree with it.

Can the Minister—

💬 Hon Amy Adams: Vote for it if you agree with it.

So the Minister will not meet with us unless we vote for the bill. Is that correct? Is that correct?

💬 Hon Amy Adams: I’ll judge you on your actions.

It is a bit unclear. I am not sure whether the Minister is agreeing to meet with us, or not. She appears to be saying that she is going to agree to meet with us only if we vote for the bill. That, Minister, is an appalling approach to this issue. I want to make it clear that the Labour Party will meet with you to have these issues covered—whether you agree with us, or not. That is what we want to sit down and have a discussion about. And that attitude from the Minister, that I think she is saying she will meet with us only if we vote for the bill—that, I am sorry, is the reason why these issues will not get addressed properly, but I hope she will change her attitude on that. Thank you.

Thank you very much for the opportunity to speak on the Harmful Digital Communications Bill in this second reading. I am pleased that the previous call was only a half call because that inaccurate, misinformed drivel by the previous speaker was utterly unacceptable. It clearly shows that she has not read the bill or paid any attention through the passing of this legislation. Her accusation that material has to be left online for 48 hours is completely false. It is to be up to 48 hours, as the Minister has already articulated. It would be helpful, if the Labour Party is going to be opposing legislation, that Labour members actually know what they are opposing before they stand up and dribble on about opposition to the bill.

As we know, the purpose of this bill is to deter, prevent, and mitigate harm caused to people by digital communications and to provide victims with a quick and efficient means of redress. That is why we are trying to pass this legislation. It is to assist the victims in this dreadful circumstance, as we have already been told about, over the last few months—a number of incidents involving harmful digital communications, and the effect that that has on victims, through a pretty dreadful public display. We would like to commend the Green Party for its support in this so far, and I would like to offer maybe just a thought to the Labour Party that while you are having trouble in paradise, maybe you should take a leaf out of what the Green Party is suggesting, because it seems to be quite sensible.

Just moving on, yesterday we were in Hamilton, in that member Sue Moroney’s list seat. We met with representatives from Waikato University, as well as from a number of other tertiary institutions. They were talking about the development in technology, and the challenges, the consequences, and opportunities of that. We know that legislation is going to be one step behind the development of technology, because technology is developing in a continuous cycle. I think part of the problem as well is that—in terms of the types of abuse and bullying that can take place in this day and age, with cellphones and with Twitter and Facebook and other forms of digital abuse—the parents of those people probably are not even slightly aware exactly what the forms of abuse can potentially be. I know, for one, my parents have both got cellphones. My dad probably turns his on about once a week, just to check it. If someone had a conversation with him about abuse, through the use of digital technology, he would probably be a little bit lost by it. So I think part of the challenge as well is to try to inform parents and caregivers of children about the quite significant effects that harm through digital means can have. This is what some of the steps in this bill, in addition to what the Ministry of Education is doing, will work to achieve.

I want to focus a little bit on the education side because, as the Law Commission has found, one in 10 New Zealanders has experienced harmful communications on the internet, and that number doubles for those aged between 19 and 29. It shows that one in five New Zealand high school students experience some form of cyber-bullying or harassment. I was working in Hekia Parata’s office at the time that the previous Minister of Justice, Judith Collins, initiated conversations around this bill, and I can say that both Minister Parata and the Ministry of Education were very keen to be a part of the development of this bill, because one of the constant issues that is being reported by schools, both to the Ministry of Education and to parents, is the effect that bullying has on the student population. There are also the flow-on effects of truancy. A lot of people are not showing up to school because of the effect that bullying has on them.

So it is quite a complicated area, and the Ministry of Education and schools have been looking for extended avenues in order to help them address this serious issue. It is a complicated issue as well, given the complexities that technology involves. I think the devastating impact that cyber-bullying can have cannot be underestimated, particularly when it comes to young people, and it is contributing to, as I said, increased truancy, failure at school, and emotional problems such as depression, self-harm, and suicide.

In 2011 there were 93 male youth suicides and 31 female youth suicides in New Zealand. What I found quite puzzling, coming from a rural electorate, was that there was a higher rate of suicide in rural areas than in urban areas. I think a contributing factor to that is the effect of digital bullying through instantaneous links in relation to Facebook, Twitter, and cellphone usage. The more that we can do in this space to address the harm that it has on individuals and families, emotionally, mentally, and physically in some cases, and the flow-on effect of that—we should be doing everything we can, which is why it is great to have a cross-party approach, I think, to issues such as bullying and mental health - related issues.

Again, it was quite concerning that the previous speaker from the Labour Party, Sue Moroney, did not even consider the implications of this bill when she was standing up attacking the Minister Amy Adams, who was actually answering some of her questions on the floor here tonight. Had the member actually read the bill and the implications of it, half of those questions would have been answered. Perhaps it might have had the Labour Party supporting the bill. It is a shameful position for the Labour Party, I would have thought—an absolutely shameful position.

💬 Andrew Bayly: Shameful.

Thank you very much.

💬 Sue Moroney: Will you get the Minister to meet with us?

I think that the member should potentially start reading the bill again, revise her position, and then consider whether or not that is something that she would like to do.

It was actually quite interesting, when we were in Hamilton yesterday assisting David Bennett, to hear the positive feedback we were getting about the National Party’s performance and his performance up there, particularly in the areas of education and justice. It is a bit of a shame that the member who spoke previously, Sue Moroney, has gone around standing in a number of seats in the Hamilton area. She seems to be our biggest asset, actually, when it comes to campaigning in Hamilton, as we were hearing yesterday.

Getting back to the purpose of this bill, the changes to the criminal law system are around creating, particularly, a new offence of posting of harmful digital communications with the intent of causing harm. It would apply to communications that are grossly offensive or indecent, obscene, menacing, or knowingly false. The offence will also cover serious instances of intimate recordings being published online without a person’s consent. It will carry a maximum penalty of 2 years’ imprisonment.

Some of the concerns raised today were around the potential criminalisation of children. As we have already discussed, we are trying to use other approaches, as opposed to going straight to the courts to deal with this issue, but in serious cases where there is repetition and serious misconduct in this space, at the end of the day there are victims who are detrimentally affected by this and it could even cost some people their lives. So, in fact, if it does end up criminalising a child but there is the chance of saving the life of another, then I think that is something that we are just going to have to deal with, and I think, on balance, that the general public would support that view.

So it is a serious matter that we are dealing with and it is not something that we want to take lightly. As we know, we would want to use any prevention that can take place to prevent a child from getting into the youth justice system, because of the spiralling effects that can have downstream.

Another thing is that this legislation has been echoed in Australia, the UK, and the United States, which already have similar offences that criminalise communications that cause serious distress and mental harm. On the one hand, we have got an Opposition saying that we need to be doing more in this space to prevent mental illness and to try to get on top of the issue of bullying, but when we try to do that—as part of a wider package of reforms, including in areas such as education, social welfare, and justice—we are getting shut down, and we are getting a lack of support from them in that regard. So it is a bit confusing as to exactly what the Opposition expects us to do and thinks that we should be doing in that space.

Just to go back to the education aspect, in terms of what will be done to address cyber-bullying in schools and of school-age children, there are a number of programmes that are currently in place throughout the education system, particularly the National administration guideline 5, which requires boards of trustees to provide a safe physical and emotional environment. This includes addressing the issue of bullying, including cyber-bullying. The Bullying Prevention Advisory Group, which was established and chaired by the Secretary for Education, Peter Hughes, is working on this issue with teachers, principals, and parents, across a wide range of schools currently. There is a constantly updated edition of a document that records and reports on success in this area, which can be found on the Ministry of Education’s website.

There are also a number of other avenues such as the Online Safety Advisory Group, which has recently produced a publication entitled Digital Technology: Safe and Responsible Use in Schools, which has been developed to aid schools in addressing this issue. There are also programmes in schools, such as Wellbeing@School and Positive Behaviour for Learning—which this Government has put significant investment into—to try to establish more coherent assistance for schools to address the problems of bullying and other behavioural difficulties. Of course, with regard to the Positive Behaviour for Learning programme, that is something that provides tools for schools, teachers, and parents to help them create a school environment that encourages positive behaviour. It involves a number of initiatives, such as operating with NetSafe.

Although I would just like to acknowledge the other speakers from this side of the House, and the Green Party as well, who have commented on this bill tonight, I suggest that the Labour Party members should potentially hang their heads in shame and read the bill before commenting on it in futures stages. Thank you.

Well, I have read the bill, and I want to address some of the issues that arise from it. First, today, the irony could not be greater, in that we are discussing the Harmful Digital Communications Bill on the very day when the Government will not answer allegations as to whether the Government Communications Security Bureau (GCSB) was used to intercept the communications from competitors for the job of the Director-General of the World Trade Organization—the rivals to Minister Groser—whose emails, it appears, were intercepted by the GCSB in pursuit of a job application by Mr Groser. That will have long-term consequences for New Zealand’s reputation as an honest broker in the world. It will have implications for our trading relationships with countries like South Korea and Indonesia. And we have already seen, I think, some of the disquiet in civil New Zealand as to the consequences of those harmful digital communications.

In respect of this bill, I think the first thing to say is that no one in this House of Parliament is saying that some of the egregious conduct that we see through the internet, amongst other media, is acceptable. People who are criticising this bill are not condoning that conduct. The second thing I would say is, in respect of the Roast Busters issues that have been referred to by some speakers in this House, let us not go too far down that line, for two reasons. One is that the report of the Police Complaints Authority showed that there were legal remedies that could have been used in respect of those individuals that were not used because of either incompetence or some other form of bungling by the authorities. It was not for want of authority that they did not do anything; it was because they did not do their jobs properly.

The next thing I would say is that this legislation was given a kick along because of the Roast Busters controversy. The Minister at the time was the Hon Judith Collins, who was the Minister who conducted this bill. Again, I think, with the benefit of hindsight, given what we have seen, in respect of what we know of Judith Collins passing information to Whale Oil, which was a harmful digital communication, it is deeply, deeply ironic that the National Party is pretending to be protecting people from cyber-bullying when some of the worst instances come from its own members, including the then Minister who was responsible for this bill.

In respect of the offence that is created of causing someone serious emotional distress, the commentary from the select committee report uses the term “a digital communication which has caused or is likely to cause someone harm”, and “ ‘Harm’ is defined as ‘serious emotional distress.’ ” Nowhere in the bill is that term defined.

The commentary then says: “We consider that the principles would provide a useful reference to help infer a common set of values when assessing whether behaviour was acceptable.” How woolly is that? You then turn to the principles that are meant to give us the confidence that we are creating something that is reasonably easy to understand—and some of them are. Some of them include: “A digital communication should not be grossly offensive to a reasonable person in the position of the affected individual.” I can agree with that. “A digital communication should not incite or encourage another individual to commit suicide.” I can agree with that. But these are not principles that all have to be met—any one of them from the list can be met.

Principle 5 says: “A digital communication”—not a series of digital communications, but a digital communication—“should not be used to harass an individual.” Well, if that is the test—if this law was in place when Judith Collins sent her email to Whale Oil, and then Whale Oil used it to attack Simon Pleasants on the basis of the address disclosed by Judith Collins, Judith Collins would be in breach of a criminal law. Is that really what you are intending, to criminalise the likes of Judith Collins for her conduct, because that is what this says? It does not talk about a series of harassing emails; it talks about a digital communication that is used to harass an individual. That would be an instance of a criminal offence that was created, because I am sure that it caused serious emotional distress for the person who was on the end of that. I have not heard the Minister stand up and say that that is the sort of offence that is intended to be created, because I do not think the Minister has thought it through properly.

I want to refer to principle 10: “A digital communication should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.” I do not like people doing that and I do not think that they should do it, but we do not have laws against hate speech in New Zealand. If the Minister wants to introduce a law against hate speech, introduce a law and properly discuss the principles that should lie around whether we should have a prohibition on hate speech, because we have not got it in New Zealand, and if we are going to have it for digital communications, why should we not have it in the newspaper? What is going to be the implication of this?

When we have a body like the Sensible Sentencing Trust or some of these other organisations in New Zealand that, I think, say reprehensible things, I think that a lot of the things that they say would be caught by that principle. I know that they routinely denigrate judges. They denigrate them as a class of people. I have heard some of these groups that are in favour of fathers’ rights feel that they are abused by the criminal justice system. They abuse some of the judges on the basis of their gender as if they are showing bias. That would offend principle 10 if it went to the stage that it was causing serious emotional harm to people, and we do not know, really, what that term means.

Laws should be of universal application in principle if the principle is right. If we are going to have prohibitions on hate speech, they should not apply to just the internet. They should not apply to just the limited situations here. We will have, if this law passes in this present form, the ridiculous situation that it would not be illegal for someone on a New Zealand website to host deeply offensive messages from the Islamic State people saying that anyone who is not a Muslim of their persuasion and who does not believe in sharia law is justified in being killed, that the State should be overthrown, that homosexuals should be put to the guillotine, and all of those sorts of things. That would be perfectly permissible under this legislation because this legislation would not cover that ill, whereas some of the other things that I have described would be covered by this legislation.

In the time that has passed since this bill was prematurely reported back to Parliament under pressure by the then Minister of Justice because of the Roast Busters case, times have changed overseas, and I would call upon the Government to reflect upon whether it is creating some unusual laws in respect of criminalising behaviour in regard to the internet when we do not have general prohibitions against the same conduct under other laws. We in the Labour Party have written to the Minister offering to meet to discuss some of these issues. I do find it deeply ironic that we are debating harmful digital communications, the nature of which would have been offences committed by the very Minister who introduced the bill, Judith Collins.

This is a split call. Andrew Bayly—5 minutes.

I am very pleased to be able to talk to this bill, both as an MP and as a parent of teenage boys. I also find it most unfortunate to hear the Opposition talking of delay, vacillation, and a do-nothing approach with regard to this bill. Members of this House are reminded daily, both through the media and through different forms of lobbying, of the increasing concerns in our communities about the variety of potential ill effects caused by digital communications of all types. This Government is committed to deterring, preventing, and mitigating the harm caused by digital communications and is committed to providing victims of this medium with an effective and rapid means of correcting the habit.

Cyber-bullying has taken on overt proportions to a more insidious level. It is often hard to quantify, and, with regard to these communications, we need to curb its incidence as well as the often devastating and longer-lasting impact that it can have on young people. This Government is alert to this adverse activity and is determined that New Zealanders should feel safe in their homes and in their communities—with a special focus on our young people, who might be less discerning and more vulnerable. By introducing increased controls and legislation, we are protecting our children, our youth, our families, and, in general, New Zealand. I commend this bill to the House.

I would just like to focus, in this very short call, on the importance of this bill not being too platform-specific. If we look back to 2004, Facebook came into being in February of that year, yet today that is one of the most thought-of digital platforms, and one that is used most often in these cases that we are discussing tonight. Twitter came in in 2006. A year before that, YouTube came into being, and who knows what digital platforms will be available in 10 years; they may not be in a form that we know today. I commend this bill because I think it has the flexibility to take account of new platforms in the future. It is with pleasure that I commend the bill to the House. Thank you.