Objectionable Publications and Indecency Legislation Bill

It is my pleasure to take a call on the Objectionable Publications and Indecency Legislation Bill. I am glad that the Minister of Justice will be in the chair for the debate around Part 1 and also around Supplementary Order Paper 67, one of the recent Supplementary Order Papers that has been tabled in her name. I want to focus, firstly, on the substantive clauses within Part 1, which make the most significant changes to this bill. Before I do, though, I want to make the general comment that these are amendments to a piece of legislation that has a broader scope than simply objectionable material as it relates to children. I think that there has been some discussion, perhaps even within the Justice and Electoral Committee but certainly within our party, over the need for an overall strategy when dealing with objectionable material, child exploitation, and so on as it relates to children. It feels like this is a piecemeal approach to what is a much wider and very substantive issue, but that is just a contextual point that I wanted to make before getting into some of the details of this bill.

I will start by looking at clause 4 of the bill, which amends section 124 and relates to offences involving knowledge in relation to objectionable material. This is the first clause that alters the penalty regime for, essentially, the supply, distribution, or the making of objectionable material by way of exportation from New Zealand. I think the point that it is important to make here is that, as I said in my introductory comments, because this legislation is an amendment to the Films, Videos, and Publications Classification Act there is a fairly wide interpretation around the term “objectionable”. The reason that that is important is that to most people’s minds, and certainly when the select committee was considering this, the effect on children is the primary consideration. So when the committee decided that it was right that a maximum term of imprisonment for an offence involving the supply and creation of objectionable material involving children would move to 14 years, that is whom they had in their minds at that time. But as the select committee, I think rightly, pointed out—because we do not have specific child exploitation offences, the term “objectionable” is still relatively open and up to the discretion of the Film and Literature Classification office. There was a bit of a debate at the select committee level as to whether or not, actually, we should be dealing with a separate piece of legislation or whether leaving that discretion around “objectionable” was the right way to go.

I think that probably the point that the select committee made that is of the most relevance is that it becomes very difficult, then, if you are creating separate legislation that applies just to children, to determine where you draw that line. For instance, would you say that “objectionable” would mean anything that was exploitative as it related to a young person, which means that you would probably go from 14 to 17 years, or would you say simply a child, which therefore, under existing definitions, would take you only to the age of 14? You start, then, having to get into some of those arbitrary lines. I think the example that was raised by the select committee was that, for example, it could be argued that material depicting sexual violence against women also warrants higher penalties. So I certainly understand the justification of the select committee for leaving it somewhat open-ended in terms of determining what is objectionable and just allowing penalties to be as consistent as they can be. I think it is slightly disappointing, though, that we do not, for instance, have a body like a Sentencing Council that would be able to ensure that we have consistency in the application or the determination of what that definition of what objectionable is, and whether or not those maximum penalties are being used appropriately or as Parliament intended. We come time and time again in the House to examples where I think a Sentencing Council would really prove its worth, and I think this is another example. Given that we are allowing that discretion, it would have been useful.

I also would like to ask the Minister in the chair—if we are not going to be as definitive as to point out “child” within the definition of objectionable—whether or not it was considered that embedding that as an aggravating factor at the point of sentencing was another way that, perhaps, you could create that point of difference in the legislation. I would be interested to know whether that was ever considered, because that might have been an elegant way to deal with some of those definition issues. I am also interested in how many cases we know have fallen into the category of perhaps being objectionable but not relating to children—how broadly is that definition applied for this penalty regime? I think that might have been information provided at the select committee, which would be useful.

The other issue that the select committee raised was whether, in raising the penalty regime from 10 to 14 years, we then get into a situation where the supply or creation of material actually becomes a higher penalty regime than, for instance, physical assault against a child—making sure we have that consistency in the legislation. It is a very important point to make. If you take a quick example from the Crimes Act, sexual conduct with a child under 12 has a term not exceeding 14 years. Again, I think it is important to make sure that we have rules that are consistent. Again, I think the likes of a Sentencing Council would have been in the position to take a broader view as to whether or not we have got a proportionate response in every element of the law as it relates to the abuse and exploitation of children. In and of its own right, of course, anyone looking at this law would say “Yes, it is right to have those maximum penalties lifted”, and we would agree with that, but I think it is important that we make sure that the other offences that relate to harm to children keep pace with the expectations of Parliament as well. And, again, it is hard to do that from within Parliament, and so a Sentencing Council would have proved its worth there.

Clause 5—these are the new subsections that talk about possession of an electronic publication. A really important point here is that, obviously, the drafting has very particularly made sure that you do not have to have material literally saved on to your device in order for it to be considered possession. I think that it is incredibly important that we make sure that we are really clear on what possession is considered to be. I understand that there was a case, which I think was the rationale for making sure that this was stepped out very clearly—Meyrick v Police. I believe that was a case that actually involved an ex - police officer, if I am correct, in possession of objectionable material. I found it hard finding some substance around that case. If the Minister was willing to speak to how the bill is now in alignment with the outcome of that case, I would be very interested because I found it hard to find details online.

Clause 6, though—I wanted to come to that because that relates to offences of possession. So it is not just the supply penalty regime that we are increasing but also possession, and it makes sense that if you are lifting one, you would consider lifting the other. We are looking at amendments now that will increase the maximum available term from 5 years’ imprisonment to 10 years. Again, keeping alignment with other regimes I think is incredibly important, but from the select committee report it does not seem to be the main concern out of all things that the select committee has raised.

Some concern, however, was raised on new section 132B, to be inserted in the Films, Videos, and Publications Classification Act by clause 7. This section sets out a specific expectation that if there is a repeat offence, the presumption from the court will be to hand down a jail-based sentence. You can absolutely understand why there would be the view that we would need to send a strong signal. We are talking about a very specific classification of offending. There are some principles that apply to this type of offending that are specific to child exploitation and the circulation of objectionable material.

Thank you for the chance to have a call in the Committee stage of the Objectionable Publications and Indecency Legislation Bill. I did not sit on the Justice and Electoral Committee, which heard the submissions on this bill, but I have spoken in all stages of the debate so far. Labour is supporting this bill, but there are some particular issues of concern that I will speak to, and I will echo some of the comments made by my colleague Jacinda Ardern, who spoke before me, around three particular issues. One is around the lack of an overarching strategy within which this bill fits—an overarching strategy on a number of levels, actually, because it is a strategy that deals with children and the abuse of children, and the way that the abuse of children is perpetuated online as well as in the physical environment. Unfortunately, we have another bill before the House at the moment, the Harmful Digital Communications Bill, which was to all intents and purposes developed in isolation or in a separate way, and there are questions around how these bills mesh and how the issues that they raise align. That is one of the issues—around the lack of an overarching strategy.

The other one is particularly around how laws that are created that have an impact on the online environment actually align with laws in the physical environment. This is a particular concern of mine. You would have heard me speak about this on a number of occasions, around the precedents that are being established without what I consider to be a really thoughtful process that has actually allowed the real consideration of some of the impacts. Although I applaud the Minister’s intent around addressing these issues, I seek—and, I guess, plead—for the Government to actually take a little bit more care when putting pieces of legislation in front of us that actually create offences in an online environment that do not necessarily mirror, or are not proportional to, the actual physical enactment of the abuse. There is a difference, but there is also an alignment. I suspect that what we are going to see—and we are already hearing this—is concern from the judiciary and concern from the legal community, particularly, around some of the lack of thought that has gone into these things.

I also want to talk to clauses 4 and 5 around increased penalties and also around the possession of electronic publications. The specific issue that I want to focus on is the increasing of penalties and the question that was raised by a number of submitters around whether or not this would act as a deterrent. The increase in penalties that this bill enacts includes an increase in the maximum penalty for the possession, importing, and exporting of an objectionable publication from 5 years’ imprisonment to 10 years’ imprisonment. So that is a doubling of the penalty. The maximum penalty for the supply, distribution, or making of an objectionable publication is increased from 10 years’ imprisonment to 14 years’ imprisonment.

There were concerns raised at the select committee by the Dunedin Community Law Centre—the good old Dunedin Community Law Centre, which submits on many pieces of legislation—and the Salvation Army. Both pointed out that increasing the penalties for objectionable publications offences could distort relativity with other offences by treating some physical offending as being less serious than the depiction of that same offending. I know that my colleague Jacinda Ardern touched on this as well. The Salvation Army submitted that this created an anomaly, as physical crimes should be punished more severely than objectionable publications offences, and the Dunedin Community Law Centre suggested that this may send the wrong message to those who are physically abusing children.

I want to be quite clear here that, in principle, I do not have an objection to the increasing of penalties for the abuse of children in any environment, whether it be online or physical, as long as there is due care taken to ensure that the relativities in terms of the kind of abuse are maintained and that there is not the suggestion that one form of abuse—a physical form of abuse—is somehow being diminished in the process. I think that was the point that was being made by those two submitters. In fact, the regulatory impact statement itself raised this issue and said that “it is difficult to predict the effect of an increase in the maximum penalty for an offence.”, and it gave a range of reasons for that, and gave some evidence around the number of people who had been convicted: “In the 8 year period between 2004 and 2011, 393 people were convicted of an objectionable publication offence.” Of them, 33 percent were sentenced to a term of imprisonment. Of that 33 percent, 40 percent of fewer than, I think, 14 cases actually received a term of imprisonment that was less than 40 percent of the maximum available sentence. The regulatory impact statement pointed out that “There are also low rates of recidivism. During the 10 year period … only 8 people were convicted of a repeat objectionable publication offence.”

I guess that my question is—and I refer back to the Salvation Army’s submission on this bill: it questioned whether the increased sentences will actually work as a deterrent, and it submitted that this should be closely monitored. So I have a question for the Minister of Justice, and I hope that she does take a call. The question is: what is the process for that monitoring to take place? Is it included in the strategy around this legislation, and will we be seeing close monitoring of that? We are not opposing this measure, but we are asking for some further clarification around it.

Turning quickly to the offence of possessing an electronic publication, as my colleague Jacinda Ardern said, the Films, Videos, and Publications Classification Act is amended to provide that possession includes intentionally viewing without knowingly downloading or saving. This is a very new provision. So you can receive it, and if you are looking at it—you do not have to download it and you do not have to save it—by the mere act of seeing it intentionally, you are committing a crime. I think this is an interesting part of the bill. I raise that because this is the part of bill that is about updating for modern technology, where we really are looking at the way people are using technology and what that is doing to impact on the legislation that is coming before us. Again, the submissions before the select committee covered this part of the bill quite considerably and really did have good look at it. I think that there was a considerable amount of discussion within the select committee and also by the officials, which gave it quite a lot of attention to ensure that it aligns with common law, under which possession of objectionable material includes intentionally viewing.

It is good to see this bill back before the House. The Justice and Electoral Committee, from my recall, was hearing submissions on this bill about a year ago. There was a sense of urgency about it because it was seen that there was a gap in the legislation and that we needed to remedy that. So, as I say, it is good to have the bill back in the House.

It is interesting that in the last few weeks, I believe—possibly more than a few weeks—there has been a programme on Prime Television looking at the history of censorship in New Zealand. I think it is called The Naughty Bits. I have caught only a little bit of a few episodes, but it has been a really good reminder that when we are dealing with words like “objectionable” and “indecent”, and “indecency” in this instance, we have to tread very carefully. These are incredibly subjective terms. One of the parts of the programme I did see that gave me some amusement was from back in the early 1970s, when the film Ulysses came to New Zealand. It was deemed to be of such an extraordinary nature that you could not possibly have men and women sitting together in an audience. So it was allowed for public showing to people over the age of 18, but men and women had to be segregated, which is extraordinary. I suspect that today it could go on air with perhaps a PG rating or some such. The point is that our perceptions, our understandings, our social mores in terms of what constitutes objectionable or indecent change dramatically over time. We have seen remarkable shifts even in the last 30 or so years in New Zealand.

Having said all that, I will say that the Greens are supporting this bill, primarily because—and this has been touched on already—it is seen that the legislation essentially has not caught up, or kept up, with available technologies. With the internet and the availability of pornography, particularly of child pornography, part of the problem is that it is now possible to observe such things, which inevitably involve abuse and harm to children, without actually committing the offence of possession. Obviously, to look at something online is not to possess it, and this bill overcomes that gap in the legislation. I guess that at some point we have all fallen into the trap where you click on something that appears innocuous and suddenly you are looking at something you would rather not, particularly if you are using a parliamentary computer—so one quickly moves away from that site. Clearly, it is not the intention to catch people out, but where people are using that sort of material, it needs to be controlled and it needs to be managed. They need to be taken to task.

The part of this bill that caused us difficulty, and continues to, is the increase in the penalties. The evidence, I would argue, is overwhelming that increased penalties on their own are not actually an effective deterrent. We had not a lot of submissions, actually, on this bill—fewer than a dozen, I think—and only a handful of people submitted orally, but they tended to be well-informed submissions, and that came through in a number of them. They said that simply increasing the penalty for a particular offence can in no way give us any expectation of reducing offending rates. Where the investment needs to go is into treating people, particularly people who use child pornography. There is something wrong with those folk. They need attending to, and we need to understand what the motives are for that behaviour. Those are the issues we need to address. I have argued before that we need specialist courts, in the same way that we have the drug and alcohol courts, to deal with these cases. We need to endeavour to actually heal them, to remove the temptation or, in some cases, the need these people seem to have to utilise this form of very objectionable and damaging material. So the Greens continue to have serious concerns about the additional penalties.

I guess we are still able to support the bill with the expectation that the judiciary will apply judgment and common sense. They understand the social context. They understand the limited value of simply putting somebody in jail for longer periods of time. So it is to be hoped that we will get some positive outcomes around that and that the penalties will actually involve treatment and dealing with the cause of the offending as well as the offending itself.

I have touched already on the issue of the definition of “possession”. In the select committee’s report back to the House, the point is made in respect of the whole notion of sexual grooming offences that in many instances it is much easier to commit those sorts of offences, to present to a naive young person as a peer, as somebody you are not, in order to affect their behaviours and ultimately to even bring them into a position where abuse can occur. So we think it is a very positive step that there is recognition of just plugging the possibility or minimising the possibility, or the opportunity, for that sort of offending to occur, online in particular.

Part of the report does engage with these notions of indecency particularly. The point is made that there is actually not a definition of “indecent” in the Crimes Act and in other parts of the law where we deal with issues around what is objectionable, what is indecent, and what is outside of what is acceptable to the so-called responsible normal person. Where we have some comfort is that there is quite a well-established set of case law, and I think that that is the place to leave it—with the courts. The courts should make those determinations because I fear that if we endeavour to make a hard and fast definition in this place of what constitutes “indecent”, it is almost certain to fail, and probably fail in a relatively short period of time. Certainly within 5 or 10 years we will be back here trying to unpick it. Although it might initially look attractive to provide clear definitions—and often good law does that so there are fewer grey areas, if you like, and there is less room for subjectivity in terms of interpretation—I think that these sorts of moral judgments, which these matters essentially are, are best left to the judiciary, where the intention of Parliament is made very clear.

We want and need to protect people, young people in particular in this instance. We want to remove the offences around child pornography and the like, and we want to deal with people who feel the need to indulge in that sort of behaviour, and deal with them humanely but forcefully at the same time. So I do think we had better not endeavour to lock definitions into legislation in these instances. We will have a bit more to say later, but for the moment I just reiterate our support for this bill. Thank you.

I rise on behalf of New Zealand First to take a call on the Objectionable Publications and Indecency Legislation Bill. I note that in her second reading speech the Minister who is currently in the chair, Amy Adams, said: “A 2009 study estimated that internationally 200 new images depicting sexual abuse of children were put into circulation every day. There is also evidence that the content of the publications is getting worse and the children are getting younger. Law enforcement agencies have indicated that those who reoffend in this area tend to do so with a high level of premeditation and go to great lengths to avoid detection.”

New Zealand First will be supporting this bill. New Zealand First will be supporting this bill because something needs to be done. My colleague Denis O’Rourke has previously spoken on this bill and has articulated his concerns that the bill does not go far enough. I repeat those concerns here today; however, we feel that at least it goes somewhere. We agree that there is a very strong need for a deterrent to those who exploit our children in this way.

We would like to pick up on David Clendon’s contribution and one particular point he made in it that was around the length of incarceration and whether that is a deterrent in its own right. We would agree with him that it is not a deterrent in its own right. However, I note that my colleague in his contribution to the second reading said that what we know for sure is that a shorter incarceration is definitely not a deterrent. Nothing about this should be about imprisonment in its own right. Nothing about locking a person up just like that fixes anything. So we would agree with the Green Party member’s contribution that there needs to be care, counselling, and services provided for those who are imprisoned, but we do welcome the provision that increases the incarceration ability for these offences.

We are disappointed, however, that although clause 4, for example, increases the penalty for supply and distribution of objectionable material from 10 years to 14 years, it does not go as far as we would like. It is about the distribution—those who provide the service, I suppose, if we want to talk about a supply and demand situation. If nobody is supplying it, then demand has got to drop off. So we would like to see those who are supplying it be punished at higher levels than are currently inside this bill. However, as I have said, we will support this bill because at least it goes some way toward making these amends.

I believe that my colleague Denis O’Rourke in his contribution at the second reading also argued that there needs to be, or should have been, a special provision when the offence was against children under the age of 16. He was not convinced by the officials’ arguments that this should not be included. We continue to suggest that if the offence is committed against children under the age of 16, this should be an aggravating factor when it comes to sentencing.

Also inside this bill we looked at clause 13. The bill creates a new Crimes Act offence of indecent communications with a young person, and that means anyone under the age of 16. The new offence applies where persons charged communicate indecently with a—

The CHAIRPERSON (Hon Chester Borrows): Order! The member seems to be straying into a part that is not currently under debate. Can we go back to Part 1, please?

I beg your pardon. I will address that later on. At this time then, with regard to the contributions there, we talk about—I believe clause 4 is appropriately in Part 1, which is helpful for me. So if we actually talk about clause 4, again, we have concerns around this clause and would have liked to see that time increased, but, at this stage, we accept that those penalties are what they are.

So taking aboard all those, and, obviously, I am going to make a contribution later on in the piece, I reiterate that New Zealand First will support this bill because it does something, but we would have liked to see it do more. Kia ora.

It is an honour to take a call this evening on the Objectionable Publications and Indecency Legislation Bill in its Committee stage. I acknowledge the contribution by Tracey Martin, because we did have some robust conversations and debates when the member Denis O’Rourke spoke. National members were surprised, because we were part of that committee and there were no objections at that point in time with the advisers, nor were any concerns raised—concerns you have just shared, Ms Martin—with regard to what Mr O’Rourke discussed when he last spoke. It is heartening to hear that he has also come to the view that this bill is much needed and that it does provide provision, even though it may not be to the extent that he or New Zealand First considers necessary. It is heartening to see that New Zealand First is now, along with all the other parties, supporting this bill.

The bill is important because its purpose is to increase penalties. But the bill is not just about being punitive. It is about sending a message, not only to ensure that it protects the rights of children but also with regard to a concern that has been raised. I want to just highlight this concern. It relates to Part 1 of the bill, which is around protecting children from these objectionable materials.

The New Zealand Herald this morning talked about online risks and the stress that that causes for parents. In fact, The Parenting Place research done with Colmar Brunton showed that 72 percent of parents are concerned. So the issues that are related to this bill are of concern to wider parts of our community, and we believe that what we are doing with this bill is ensuring that the penalties do relate to that, which is important, especially when we are talking about the different types of publications. The article also talked about the internet and the fact that technology has gone ahead of the legislation. So this bill will meet those concerns. It also talks about balancing those concerns. So although we talk about whether the role of the legislation is to ensure that we increase a punitive approach, it also talks about the roles and responsibilities of parents in this case. So we think the article is showing that the bill is relevant to the concerns raised by our wider community as well.

I will just touch on some of the key provisions again, especially those in Part 1. The maximum penalty for possession and for the importing and exporting of objectionable material has been increased from 5 years to 10 years. We think this is in line with the advice given. We know there were eight submissions in all—three oral submissions. There were not a lot, but what they did state was the importance of being able to send a very clear message. We believe that that is what bill is doing. It is increasing the maximum penalty for supplying and distributing—and I know that Ms Martin talked about this—from 10 years to 14 years. Again, that is in line with the advice from the ministry and in line, again, with the submissions about the fact that increasing that level of imprisonment is sending a very clear message.

The bill creates an assumption of imprisonment for repeat offenders and any forms of recidivism. Again, we think we need to send a clear message because of the concern about recidivism. But, at the same time, we also agree that there need to be forms of rehabilitation. So along with the Greens and New Zealand First we think it is important that there is rehabilitation, with support surrounding it, because we want to reduce recidivism. We want to ensure that people can get on with their lives, and, most important, we want to protect those who are most vulnerable in our communities.

The other thing that we are doing in this Part 1 is making it clear in the Films, Videos, and Publications Classifications Act that the possession of objectionable material includes intentionally viewing. We know that there were some concerns, and they were shared by Mr Clendon, in regard to the unintentional consequences of people clicking with their mouse into a site. We believe that the tools that have been used to regulate this will ensure that those unintended consequences will not be punished. But we will be able to pick up on those whose choice not to download material is a way of putting themselves outside any provision of this bill. So we believe that we have got a good balance there.

Section 3 of the Films, Videos, and Publications Classifications Act states that a publication is objectionable “if it describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good.” We know that these things are important and we define them inside this definition, and that is important because these are the publications that are of great concern to many in our communities. We know that today’s offenders can access material through technology in ways and speeds that were never imagined when the Act was enforced. We are making it clear that possession includes intentionally viewing. The amendment ensures offenders with particular technical expertise do not escape liability.

I call Poto Williams.

Thank you, Mr Chairman.

💬 Hon Ruth Dyson: Good choice.

Yes, I agree—it is a good choice. Thank you for the opportunity to take a short call. I hope I can make a valuable contribution in the Committee stage of this particular bill.

As many of you know, I am very concerned about ensuring that we do what we can, as is our responsibility, to ensure the protection of our children. I believe that this legislation makes a serious attempt to deal with the issue of objectionable material and publications.

I do have a couple of opening comments I want to make, particularly with regard to this legislation perhaps making the best of what it can. But in terms of good legislation and good laws to protect children, we could possibly have taken a much broader approach and looked more fully at lots of different aspects around issues of child protection, rather than making fixes to legislation as they come along.

With specific reference to clause 4 in Part 1, with your indulgence, I did look up some references to the term “objectionable”. I think that is obviously key to this piece of legislation. What is “objectionable”? I had a look at a previous Act, the Films, Videos, and Publications Classification Act 1993, and, if you would just bear with me, it says: “a publication is objectionable if it describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good.”

Included in that definition, of course, is the issue of violence. Many of you will know that you just have to switch on your televisions, download a movie, and, actually, just have a look through some Facebook feeds sometimes to realise that what may have been objectionable at the time we started defining that, in terms of publications, certainly is in a different space today. We are exposed to things that we would not want our children exposed to, things that were not even thought of as being accessible in the days when we were defining “objectionable”, particularly in that Act that I referred to from 1993. We were not even considering the availability of that material in everyday use on every device that we have in every situation of our lives.

So just in terms of clause 4, the knowledge relating to objectionable material and the offence, and in terms of the increase to the penalties, the maximum term is moving to 14 years for the actual manufacture or the provision of that material. I know that this was brought up by other speakers in other submissions on the topic, but it does seem that the actual manufacture of these publications, the presentation of these publications, is penalised at a term that is actually out of step with the penalty for the abuse that occurs in the manufacturing of these publications. I for one would like to encourage the Minister to perhaps make reference to that and perhaps answer why that is, and whether there are going to be steps to actually align that more consistently.

I also want to refer to an issue that was brought up in terms of what happens around the ability to rehabilitate people who have been charged with these offences, and that the length of term potentially does not guarantee that they will actually be able to access the type of rehabilitation services that they need.

I did have a couple more comments I wanted to make on Part 1, so I will make a quick call on those. Before I sat down I started to talk a little bit about clause 7 of the bill. This was the clause that makes very specific reference to repeat offences having the presumption of a term of imprisonment attached to them. The reason I wanted to speak to this is because there was some discussion, obviously, at the Justice and Electoral Committee, over the increasing use of giving much more prescriptive guidance to the judiciary around expectations of sentencing, and whether or not this was considered a good or bad thing. The general view seems to be that, actually, leaving sentencing to the discretion of the judiciary should be our presumption as legislators.

However, I do think that there is room for a category of offences where we know there is a particular pattern of behaviour, where there is a bit more understanding of the psychology of this kind of offending, and I think that for anything related to child sex offences, there is some specific knowledge base behind that type of offending. Certainly, that feeds through into, at least, the treatment plans that seem to sit within our corrections system around the idea that there are certain patterns of behaviour that are perhaps more predictable than other forms of offending. I would be very interested and, if I am wrong, happy to be corrected by the Minister of Justice on that, but that is, generally, the sense I have got since holding various portfolios in this area. So there seems to be a comfort, at least, with saying: “Well, if you see a pattern of behaviour where you have repeat convictions, we do think that, therefore, it requires an escalation.”—that escalation being a presumption that there would be a particular sentence applied to that individual.

The way it is set out in the legislation is to state under new section 132B, inserted by clause 7, that it applies “only to an offender who (a) has been convicted of and is to be sentenced in respect of a specified publications offence committed after the commencement of this section … and (b) before the conviction for the repeat offence was entered, had been convicted of 1 or more specified publications offences committed before or after that commencement.” The issue that I wanted to raise, though, is whether or not there was any discussion given to whether or not a repeat offence could, instead, have actually been an aggravating factor at sentencing, rather than having that presumption around imprisonment be so expressly stated in the legislation. That probably would have given a greater amount of discretion to the judiciary to make a decision as to whether or not, in their minds, it was appropriate that a term of imprisonment be used for that second offence. I do not know whether or not that was something discussed or considered by the select committee. Obviously, the Sentencing Act has a range of aggravating factors and it could have, perhaps, been specific to offences under this law that that could have been added as one.

I am also interested to know how many repeat offences have been committed already. If we had this legislation, how many times would you have had someone who would fall under this criterion who has not been given a term of imprisonment, and, therefore, would be likely to have been had this legislation existed. I am always interested to know whether or not we are—[Interruption] Sorry, what was that?

💬 Clare Curran: Very low recidivism.

I am hearing that it is a very low recidivism rate, which is the general rule of thumb for these kinds of crimes. So, because there is a low rate of recidivism, I would be interested in how many occurrences we have seen where someone has come before the court for a second time and has not been given a term of imprisonment. My assumption would be that, if it was a repeat offender, that would be likely to have been the case anyway. So are we legislating for something that, actually, has not been a problem, or have there been some cases where that second offence has not been met with a term of imprisonment? I am just interested to know the context.

The next issue I am interested in is, given that, again, we are talking about a very specific set of types of offences, we do know that, relative to other types of offending, there does seem to be a relatively high success rate for treatment programmes. Was any discussion had at the select committee around agreements, memorandums of understanding, or what have you between the Ministry of Justice and the Department of Corrections around ensuring that if there is a repeat offence, and that if there is the presumption of a term of imprisonment, there is also a presumption that there would be an appropriate Department of Corrections - led programme attached to that person’s sentence? We know that there are a number of programmes. They are lengthy programmes, and sometimes scheduling of those programmes is an issue, depending on the length of sentence. But it would seem to me ridiculous to have a regime where we say “Look, we’ve got a repeat offender. They weren’t in prison the first time, and obviously haven’t addressed the causes of their offending.”, but not to, therefore, have something that also comes in and says “Well, if we’re giving a term of imprisonment, the expectation is that there would be treatment attached to that as well.” Obviously, by and large in corrections you do see that kind of planning, but I think if we are talking about repeat offenders it is particularly important.

The final point I want to make in Part 1 still relates, I think, to clause 7. The explanatory note talks about the exceptions to when an offender must be sentenced for repeat offences to a sentence of imprisonment. The exceptions, it says, are: “unless the court considers that the offender should not be so sentenced, having regard to the particular circumstances of the repeat offence;”—so there is some discretion there, obviously—“and the particular circumstances of the offender (including, without limitation, his or her age if he or she is under 20 years of age).” So there is an exemption built in there around the age of the offender, if we are talking about a term of imprisonment. What I am interested in, and perhaps the Minister of Justice would like to comment on it, is why the age of 20 was selected here. In a lot of legislation, it is true to say, we have a wide-ranging group of ages that are considered to be the age of majority, but by and large the age of majority in a lot of legislation is 21—but not in criminal justice. In our criminal justice system, as the Minister in the chair well knows, it is 17 years of age.

Labour members, personally, do not agree with that. We think it should be 18. New Zealand breaches the United Nations Convention on the Rights of the Child by it currently being 17. It is one of the lower ages compared with overseas jurisdictions, but that is the age that tends to be used to distinguish between a youth and an adult. So I am interested that the age that is specified here is 20 years of age. I am interested in the rationale for that. It seems inconsistent. I am not advocating that this law should say 17. I would advocate 18, perhaps, but 20, to be honest, seems odd, and it seems an “out there”. There might be very good reason for that—someone who was on the select committee might be able to give me some justification for that—but at the moment I would say that it strikes me as being a bit of an “out there” and a bit of an anomaly. And there is another section of the bill where I think there is a similar age issue, but I am going to resume my seat in the hope that the Minister might be able to respond—

💬 Hon Ruth Dyson: Don’t hold your breath. She’s not on to it tonight.

—I am ever the optimist—to answer some of these questions. Thank you.

Tēnā koe, Mr Chair, and thank you for allowing me to take this short call. Just before I start, I want to congratulate you, because every time you resume the Committee or the House in your role as Chairperson or Deputy Speaker, you always welcome everybody back in Te Reo Māori, and it is more than just a “kia ora”. It is actually something very appropriate for the time and for the occasion. Nō reira, ngā mihi nui ki a koe. [Interruption] Ha, ha!

Just to the bill at hand, the Objectionable Publications and Indecency Legislation Bill, I was not on the Justice and Electoral Committee at the time, but I am fortunate to be on that committee now and I did have the opportunity to speak in the second reading, so I am excited to get up now just to flesh out a few more of the thoughts that I had then in the hope that some clarification can come about. My colleagues have mentioned an overall strategy around justice and whether or not there is a coherent approach to dealing with such matters, especially for such an abhorrent crime. I think the recent report released on the Roast Busters case certainly highlights a few questions for me. One of those is around how in Part 1 of the bill it talks about increased sentences from 5 to 10 years, and I think the other one here is from 10 to 14 years. One is for the importing—that is 5 to 10 years—and for the distribution it is 10 to 14 years.

I just wonder, in light of the Roast Busters case, whether, if those penalties were about, they would be deterrent enough for those young men who were involved in that particular case. Some of the statistics, and my colleagues have mentioned some of them this evening, perhaps question that. I cannot see the direct link to it being a clear deterrent, especially when we know, and the report says here, that of the 131 offenders that have been sentenced to a term of imprisonment, approximately 50 percent have been sentenced to less than 20 percent of the maximum sentence available and 89 percent have been sentenced to less than 40 percent of the maximum sentence available. I am just trying to find a link there between why harsher penalties should be an absolute deterrent for such a crime, when I think that, more important, what the report did was highlight some deficiencies in the ability to be able to police such terrible crimes. Some of my colleagues in the Committee have already mentioned just how hard and difficult that will be in the fast-changing times of modern technology, what with the internet and the ability to access it at any time and at any place.

For the avoidance of doubt, and I am speaking about section 131(2A) in clause 5—it targets technical expertise and the definition talks about not consciously downloading or sourcing. It has already been mentioned this evening about just being able to view objectionable material—it is just being able to glance at it and just being able to see it. I notice, having a young son myself who involves himself in a young scene, how easy it is just to wave around cellphones, to show Facebook feeds, and to be able to share an internet page just by turning round a laptop or a cellphone. The question is whether or not that makes his friends culpable or whether that falls under this bill—whether or not they can be prosecuted or whether or not they fall under this bill and could find themselves in a heck of a lot of trouble.

My esteemed colleague here Clare Curran mentioned how the proposed sentences distort the relativity with physical offending sentences, and it has been highlighted already, but I want to continue on that point to talk about how it does distort the relativity between physical offending and, of course, the nature of offending that this bill proposes to sort out or to squash, or certainly to be able to bring pertinent penalties to those offenders. We notice that by increasing the penalty time from 5 to 10 years and from 10 years to 14 years, my concern—[Bell rung] Mr Chair?

The CHAIRPERSON (Hon Trevor Mallard): Sorry, I have just come into the Chair. I will consult the list. I call Peeni Henare.

Oh, tēnā koe, Mr Chair, and just as I heaped praise upon Mr Borrows in his time in the Chair before you, I do so now and I thank you for the opportunity to continue. I was talking about how it distorts the relativity between sentencing for physical offending and the kind of offending that this bill proposes to deal with by increasing the imprisonment time from 5 years to 10 years for importing and 10 to 14 years for distribution. I wonder whether, and I hope that the Minister, or certainly those who were part of the select committee during this bill’s passage, can explain, or at least provide a bit of clarification around, the relativity that it is talking about there. In order to impose harsher penalties just for the mere distribution or for the importing of such terrible images and what have you—I am concerned that it is still such serious offending when you consider that the actual physical act of offending, of sexual abuse of young children, of minors, is sort of lumped in as one and the same thing as distribution, when quite clearly the evidence, and indeed some of the submissions and the kōrero that I hear around this particular bill, is very, very clear, and it highlights the ongoing effects and the mental effects that it has on the victims and their families and their friends.

So that is just for a bit of clarification around that—about how it distorts the relativity with physical offending. Some of the terms in here are very technical, and probably far too technical for this individual. But there are some—and Mr Clendon has already touched on this—about the vagaries of some of the words that are being used. I also—

The CHAIRPERSON (Hon Trevor Mallard): Order!

No, I will not speak about that. That is in Part 2. I will stick to Part 1. Bear with me, Mr Chair. I cannot find the term. However, I do know that Mr Clendon spoke about there being some vagaries around the very technical terms. What we are hoping in this bill that is being proposed is that some clearer definition can be given to allow the proper processes to take place with the judiciary, and to give the judicial system the right framework to allow it to make sure that this bill certainly squashes the kinds of behaviour and activities that it intends to. Nō reira, kia ora e te Tiamana, ā, kāti rā tēnā tātou. [So thank you, Mr Chairman. I end here with acknowledgments to us.]

I move, That the question be now put.

Given the fact that no one is going for the call, I have no—[Interruption] Does the member really want it put, or shall we just move to putting the questions? [Interruption] I will decline it, and I will just move to putting the questions.

The question was put that the amendment set out on Supplementary Order Paper 67 in the name of the Hon Amy Adams to Part 1 be agreed to.

Amendment agreed to.

Part 1 as amended agreed to.

Part 2 Amendments related to indecency