Objectionable Publications and Indecency Legislation Bill

There are a number of pieces of Part 2 that I would like to speak to, but I would like to turn my attention first to Supplementary Order Paper 67, tabled by the Minister of Justice, to which I am hoping the Minister will speak. Supplementary Order Paper 67 adds new clause 14 and new Subparts 2 and 3 to Part 2. I am hoping the Minister will speak to this because this is a completely new clause in the bill and there has been no ability for there to be a debate or a discussion at a select committee.

The Supplementary Order Paper creates a completely new part to the bill. It ensures that New Zealanders who assist foreigners to commit sexual acts against children overseas commit an offence under New Zealand’s law. This amendment, as the Minister has said in the explanatory note of her Supplementary Order Paper, is in response to a recent Supreme Court decision that was given in 2014. I cannot find the exact date, but from memory I think it was in August 2014. The ruling in LM v R is that a New Zealander who assists a non - New Zealander to engage in sexual conduct with a child overseas would not be guilty of an offence under New Zealand law. This Supplementary Order Paper, as I understand it, is meant to address that. If the principal offender is neither a New Zealand citizen nor ordinarily resident in New Zealand, they will not have committed an offence under New Zealand law. Therefore, the court is unable to convict an assisting party because there is no offending to be party to.

So, specifically, the amendment provides for party liability where the principal offender is a foreigner who has not committed an offence under New Zealand law, and it provides for accessory liability for assistance given by a New Zealander to a foreigner after the offence has been committed. I have done the Minister’s job for her, because I have just read out the amendment to you. To all intents and purposes this looks as if it is an amendment that has been raised in a previous case as another gap in the existing law, and it is seeking to address that gap.

My question to the Minister—and I am hoping that in good faith she will be able to address it—is whether there is precedent for this, what the context for it is, where the recommendations came from, and what ability she has had to receive any reports on it. I think that when you put a completely new amendment into a piece of legislation at the Committee stage, then you should be prepared, as the Minister, to get to your feet and actually address the context for it, so that we are not just sliding something new into law that has had no ability to be tested, that has had no ability to have officials provide advice around it, and that has had no ability for there to be any discussion through the select committee process. So I am hoping that that is what we will hear from the Minister on during the debate on this part of the bill.

I also want to address clause 13 in Part 2, which inserts new section 124A, “Indecent communication with young person under 16”, into the Crimes Act 1961. This creates a new offence under that Act of indecent communication with a young person—anyone under the age of 16. This new offence also applies where the person charged communicates indecently with a police constable, believing the police constable to be a young person. I think we all know that this basically occurs predominantly, as I would understand it, in an online environment where there is an attempt to try to entrap the perpetrator into revealing their true purpose, which is to commit an offence. This falls into the category of the gaps in the law that this bill is trying to address, which we support.

The submitters who submitted to the Justice and Electoral Committee all seemed to support the creation of this offence and seemed to consider it to be a positive step towards curbing the culture of child exploitation through the internet. They stated that it was worded in a way that allowed for new technologies in the form of social media to be included as they appear, and I think that is very sensible for this legislation because it may very well be that new forms of media that we do not even know about yet will emerge where these kinds of offences will be perpetrated and young people will be preyed upon by the abusers. I think it is critical that we are writing legislation that can provide some kind of window to the future and that it is not always retrospective. I applaud that and think that it is important.

One of the submitters, the Legislation Advisory Committee, agreed that there was a gap in the law that needed to be remedied, although it considered that the explanatory note that described the gap as being between objectionable publications offences and the sexual grooming offence was inaccurate. The Legislation Advisory Committee said that it did not think it was clear that objectionable publication offences applied only if the offender makes a record of the communication, as “distributes” in section 123 of the Films, Videos, and Publications Classification Act appears to capture the same action required in the proposed new offence.

The comment was that there was a defence available where reasonable steps are taken to ensure that the young person is over the age of 16. I think the officials did go to some steps to reassure the committee. Even though I did not sit on the committee, it does appear to me that there was an attempt to ensure that—although a legislative gap does exist where no record is made of an indecent communication because section 123 of the Films, Videos, and Publications Classification Act relates only to publications, and the definition of “publication” in section 2 of that Act is such that in order to establish an offence against that section, a record of the communication must be deliberately kept by the offender. I think that the discussion in the select committee—which recommends inserting into the Crimes Act new section 124A(3), which provides a defence where, before making the indecent communication, the person charged took “reasonable steps” to find out whether the young person was 16 years old or older and “believed on reasonable grounds” that they were that age at the time of communication. That is where the defence lies.

So certainly this section of the Act really goes quite a long way to addressing the entrapment concerns that submitters had where the person charged communicated indecently with a police constable, believing the constable to be a young person. I think that is the issue, and concerns were raised at the select committee as to what extent the police could undergo that investigation with the person on the other end not knowing that they were being entrapped but where they did not make an attempt to find out whether the person was under 16 or not. I am reasonably comfortable that where that ended up is probably in the right place.

I did want to take just a brief call to respond to Supplementary Order Paper 67, which Ms Curran talked about in her first call on this part of the Objectionable Publications and Indecency Legislation Bill, because I do think it deserves a little bit of time to reflect on how it got to that point.

The Supplementary Order Paper, as the member has pointed out, contains a number of reasonably operational changes to legislation, but the one that I think Ms Curran talked about and that I think is worthy of spending a little bit of time on is new clause 14 of the bill, added by the Supplementary Order Paper. It does create a very clear provision about the liability of New Zealanders when they commit offences as a party against a child internationally. It did come about as a result of the Supreme Court decision in a case called L M v R that was issued by the Supreme Court late last year.

In that case it was a very sad fact pattern, as many of these cases are, where a New Zealander was found to have been involved in taking sexually explicit photos of their 7-year-old stepdaughter in Russia. The issue before the appellate court was whether, in fact, the legislation permitted a New Zealander to be liable for an offence committed in another country where the principal party carrying out the offending was not a New Zealander. In that case the finding was that, in fact, New Zealand law had a gap in it, which was that if the offender was a New Zealander, then all parties to the offence who are also New Zealanders could be liable, but if the offender themselves was not a New Zealander, then the fact that a New Zealander was a party to that offence could mean they would escape conviction.

That is certainly not the intention of the legislation, and it would be quite wrong, I think, and against the will of most right-thinking New Zealanders to allow a New Zealander in that sort of situation, taking sexually explicit photos of, in that case, their stepdaughter, to escape conviction merely because of the nationality of the principal offender. Luckily, in that case, liability was not escaped, because the court concluded that the offender was liable as the principal offender. None the less it raised a very serious matter that officials advised me should be addressed in this bill, and I agreed with them, to ensure that we do carry out our obligations under the UN Convention on the Rights of the Child and what is called the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography to ensure that there is full and effective criminal liability for transnational offending in this space.

This is one of the categories of offending that I think it will not surprise anybody to know is seen to be of such seriousness and such severity that it should attract transnational liability, and it has always been the intention—my intention and I think the Government’s intention long before I became the Minister—to ensure that the liability of New Zealanders should be comprehensive. Certainly when this gap was highlighted, through the decision in L M v R, the advice I received from officials was that this bill should address it. I agreed with that advice, which is why we have in the Supplementary Order Paper before the Committee now this new provision that makes it very clear that no one can escape liability merely because the principal offender would not have been a New Zealand citizen at the time the offence was committed.

I think that makes good sense. I do accept the point that that was not part of the bill when it came before the House, but I would not want to have it resting on my conscience that a New Zealander could escape liability merely because their partner in crime—quite literally—was an offender of a different nationality. That was never the intention. I think it would be an unwarranted hole in the legislation, and that is the basis on which the Supplementary Order Paper and the addition of that new provision are in front of the Committee.

The other changes in the Supplementary Order Paper are reasonably prosaic, addressing the Accident Compensation Act to ensure that the new offence of indecent communication with a young person and the existing sexual grooming offences are included in schedule 3 of the Accident Compensation Act to ensure that appropriate support is available. Similarly, the new offence of indecent communication is added to schedule 2 of the Vulnerable Children Act so that anyone found guilty of such offences can have the appropriate restrictions placed on their employment in core children’s workforce roles.

With the indulgence of the Committee, if I can just mention the technical amendment to clause 7, which we have already covered in the first part, which just makes it clear that that recidivism has to be an offence that both occurred and they were convicted of, which I think is an appropriate safeguard.

I just wanted to take that call to take the Committee through the matters in the Supplementary Order Paper very clearly and the rationale for them. If the Committee wants to debate that, I would be very interested in hearing it.

Kia ora, Mr Chair. Can I thank the Minister of Justice for rising and explaining. I did not sit on the Justice and Electoral Committee. Obviously, the clauses that make these changes to clause 13 of the Objectionable Publications and Indecency Legislation Bill did not go to the select committee, which is unfortunate, but I understand that. The bill went some time ago, and it has taken a while to come back to the House. I appreciate her explanation because it is concerning to see what looks to a layman like quite a substantial change or insertion into the bill. So having only this part of the debate to truly flesh it out, and therefore not having access to the same advice the Minister has, it is greatly appreciated that she took that time, so thank you for that. Up until that moment I was unsure whether New Zealand First would have been able to support the bill, because it would have been preferable, obviously—and I am sure we all agree—to be able to discuss the change and have submissions on it at the time with the rest of the bill, but, obviously, that was not able to happen. So, again, thank you, Minister, for that. Certainly, New Zealand First also supports the amendments to ACC legislation to allow for support for young people who are harmed by the actions of others in this way.

Can I also pick up on another statement of the Minister at the second reading, where she mentioned clause 13 and the other changes to clause 13. I quote from the Minister: “the bill creates a new Crimes Act offence of indecent communication with a young person, and that means anyone under the age of 16. The new offence also applies where the person charged communicates indecently with a police constable”—we have been hearing this from Ms Curran—“believing that constable to be a young person. The new offence will be punishable by a maximum of 3 years’ imprisonment. This offence aims to address a gap in the law that exists between objectionable publications offences, which apply only where an offender records a communication, and the sexual grooming offence, which is only made out where the offender takes steps to meet that young person.” This is the bit I am particularly interested in, Minister: “Indecent communication with a young person can occur in a variety of old and new media, including text or picture messaging, internet chat, and, of course, the telephone.”

We fully support the new offence. New Zealand First fully supports the new offence, although my colleague Denis O’Rourke, who sat on the select committee—and I am sure he articulated the point very clearly—did not believe that the maximum of 3 years was enough for this particular offence. He pointed out that, compared with other offences inside the bill that he felt were not that different in nature, where the possible outcome for the offender was that it went from 5 years to 10 years, and in one case 14 years, the 3 years for this offence was not, he felt, adequate. I think he articulated that quite clearly in his second reading speech.

I want to pick up on the contribution around that particular last paragraph and the contribution from Ms Curran previously, when she mentioned the Harmful Digital Communications Bill. I am wondering whether the Minister might take another opportunity to actually rise and speak to this particular point and her comments that these indecent communications with a young person can occur in a variety of old and new media, including text or picture messaging, internet chat, and, of course, the telephone. I am assuming that this also means Facebook grooming. A real-life incident that I am aware of is a 17-year-old going on Facebook and grooming 13-year-olds to then meet them and try to have sexual relations. My understanding is that—and, please, I hope for some clarification, Minister—this legislation could catch that internet grooming.

I guess my question around the two bills is whether it would be more appropriate if what we are trying to capture in the Harmful Digital Communications Bill, which has a sentencing provision, I think, that is around about the same—2 years or 3 years is the recommended sentencing around digital harm in that bill—was actually covered by that paragraph, Minister. With regard to the digital harm legislation, we have an approved agency and we have all these other ways to deal with it up to a point. Perhaps this legislation actually takes that point onward, and this might be the answer to the impasse New Zealand First has with that piece of legislation. I am just putting it out there and looking for any sort of direction. We certainly do not want to minimise, in that comment, the impact of digital harassment.

I rise to take a very brief call. It relates, somewhat, to the provisions that the member who has just resumed her seat, Tracey Martin, was speaking to. As I discussed in Part 1, I am concerned around the consistency of the age of criminal responsibility that is scattered through this bill. I am speaking specifically to clause 13, new section 124A(1). If you make a cross-reference back to the Crimes Act, there are some significant differences when compared with the amendments we are making today. New section 124A(1) provides that “A person of or over the age of 16 years is liable to imprisonment for a term not exceeding 3 years if he or she intentionally exposes a person under the age of 16 years (the young person) to indecent material (whether written, spoken, visual, or otherwise, alone or in combination) in communicating in any manner, directly or indirectly, with the young person.”

At the moment it seems that we are debating legislation in this House, controversial legislation around digital harm, that has an overlap with legislation. There has been some discussion as to whether or not we are creating inconsistencies with what is able to happen in an online context versus what will happen elsewhere. I think it is important that we are consistent in the way that we legislate in this area. My concern is that this is an increase in the potential term that might be applied—3 years as opposed to 2 years, I believe, as it is currently written in the Crimes Act under this section. But the Crimes Act is also silent on age. The Crimes Act does not specify an age, so we assume that it is the age of criminal responsibility that applies in the provision as it may apply currently. That is my assumption, just on my quick read of the Crimes Act.

But now we are creating liability if an individual is of, or over the age of, 16 years. I question again why it is 16 years when in the Crimes Act it is 17. So why is it 16 years in this legislation? There might be justification for that. It might be that you create another regime that applies to young people. But I am consistently concerned that there is an erosion of the youth justice system in the way that we are no longer differentiating between adult and child, and that we have consistencies across our legislation when it comes to care and protection at 17 and when it comes to the age of criminal responsibility at 17.

Our care and protection age is the lowest age in the developed world that someone will exit care and protection. When it comes to criminal justice it is 17. When it comes to being able to take out tenancy agreements it is 18, and accessing most of our benefits it is 18. I believe even real estate licences wait until at least 18. There are a few things that sit at 21.

💬 Clare Curran: Cyber-bullying.

Cyber-bullying is 14. We have to decide in this Parliament when we consider an individual to have moved from child to youth to adult. If we listen to the overseas jurisdictions, they have generally stuck to a rule of thumb that it is 0 to 12, 12 to 18—or it might be 14—and then from 18 on you are considered an adult. Yet in our legislation we are consistently all over the shop.

I understand carve outs for legislation as it relates to, for instance, significant crime like murder. I understand that. But I am concerned that we have pepper-potted through our legislation different ages for liability. If we do that, I think we should be explicit that that individual should still be considered a young person or child for the purposes of the way that they are dealt with, perhaps in the court. If we are going to say we want that liability to apply to a 16-year-old, perhaps you say, therefore, from 16 to 18 we want it dealt with in the Youth Court, for instance, because that is what the Youth Court is designed to do. Maybe then your penalty regime for that age group might be different. We are not saying ignore the issue; we are saying make sure the response is catered to work with a young person. This is based on the fact that we know the evidence tells us that the earlier you criminalise a young person, the less likelihood you have of being able to turn that situation around. I look forward to the Minister’s response.

Can I just acknowledge the comments from the speaker we have just heard from, Jacinda Ardern. I think in the context of what we are talking about here that there is a discussion to be had about age in terms of offending. The age that was not mentioned is that of students, in terms of their eligibility for student support. Until the age of 25, I think, one still considers the income of their parents as part of the criteria. So we have got an age range virtually from 12 or 14 to 25, and that does seem peculiar. Presumably the 16—I mean, we have got an age of consent. It is difficult because between 16 and 18 often there is a significant development in young people. They do move almost from childhood to adulthood in those few years. So that is probably a debate worth having.

In the context of Part 2 of the present bill we are looking at, the Greens do support this inclusion of the specific reference to this offending, the notion that improper indecent communication with a young person should be captured within the legislation. The example given in some of the conversations is that it may be for purely nefarious reasons and an individual’s gratification that they seek to address a young child to expose them to pornography or whatever it is. I think we need to be aware too of the more general harm that can be done.

There are lots of evidence and research findings emerging that point to the significant harm that can be caused to young people who are exposed at an early age to pornography. It is pervasive. It is much more accessible than it has been in previous years I guess. We know from the research that young people who are routinely exposed to pornography at young ages often have trouble developing relationships in later life, including sexual relationships but not only those. Their expectation about what is normal sexual behaviour between consenting couples is also sadly skewed. There is a lot of significant psychological and, by extension, physical harm that can be done to children simply through excessively early exposure to pornography. So I think it is appropriate that we do seek to put some boundaries around this, having acknowledged the rather inconsistent approach we take to ages.

I will leave that, but the other significant part of this bill, of course, is this question of a constable who may act as a fictitious young person. Again, the example given is that if the parents of a child of 12, 14, or whatever age discover that their child is being exposed to some sort of approach online, they can then inform the police and have somebody essentially pick up where that left off and just see how far this individual is going—whether it steps across the line and whether it is something that ought to be prosecuted in this way. There are issues about entrapment or potential issues about entrapment, but I think we were given some comfort in the conversation at the select committee level that the police force and other agencies are very aware of the boundaries around entrapment, and, although this is a new environment, the principles of that do carry over. It is in nobody’s interests for them to go out and try to stimulate this sort of behaviour to endeavour to get people to initiate this sort of behaviour, but certainly where it exists I think it is entirely appropriate that these provisions should be there to enable police or other agencies to intervene in order to establish the boundaries of the offending, and to respond appropriately.

There were some concerns about this language about people taking reasonable steps to determine the age of a person they are communicating with—reasonable steps to determine whether they were above the age of 16—and whether they might believe them to be that on reasonable grounds. Again, these terms are not defined clearly in this legislation but there is a body of case law on this notion of reasonableness. It is subject to context. It is subject to the time, place, and situation. Again, I think that we are wise simply to let it lie as it is, to trust in the discretion of the agencies and, indeed, of the judiciary to establish whether somebody might in a particular instance have reasonably and genuinely thought that a person was 18 or 20 years old, or whatever, when in fact they were only 13 or 14. So with those two comments I just continue to say we support this legislation and, as we have indicated, we support Supplementary Order Paper 67 from the Minister of Justice.

The question was put that the amendments set out on Supplementary Order Paper 67 in the name of the Hon Amy Adams to Part 2 be agreed to.

Amendments agreed to.

Part 2 as amended agreed to.

Clause 1 agreed to.

Clause 2 agreed to.

The Committee divided the bill into the Films, Videos, and Publications Classification (Objectionable Publications) Amendment Bill, the Customs and Excise (Objectionable Publications) Amendment Bill, the Crimes (Indecency) Amendment Bill, the Accident Compensation (Cover for Mental Injury—Indecency Offences) Amendment Bill, and the Vulnerable Children (Children’s Worker Safety Checking—Indecency Offence) Amendment Bill, pursuant to Supplementary Order Paper 483.

Bill to be reported with amendment presently.

Members, it has been drawn to my attention that when the Committee voted on the Immigration Amendment Bill (No 2) it inadvertently did not vote on the schedules to the bill.

I seek leave for the Committee to reconsider the Immigration Amendment Bill (No 2) solely to enable schedules 1 and 2 to be voted on.

Is there any objection to that course of action? We will proceed.