Third Readings

I move, That 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 be now read a third time. This legislation addresses an appalling issue that confronts societies around the globe. The creation and dissemination of objectionable material is a revolting scourge on our society. It is an evil that abuses and revictimises some of the most innocent and vulnerable amongst us. Advances in technology mean that offenders can now access almost infinite quantities of objectionable material with ease. Although for the most part the ability to access and share information online is a positive thing, it also enables child exploitation material offenders to view, store, and share images depicting the sexual abuse of children in numbers and at speeds inconceivable even just a decade ago.

In 2009 the United Nations estimated that internationally 200 new images are put into circulation every day, and the FBI has estimated that there are more than half a million paedophiles online at any time. There is also evidence that the content of publications is getting worse and the children involved are getting younger. When offenders store and distribute this material it fuels the market, encouraging those who create the material to produce more of it, which in turn results in more children being abused. This is a cycle we are aiming to disrupt by increasing the penalties for the possession, production, and distribution of child exploitation material. Once an image exists it can be distributed to a wide audience at the click of a button. These images are being replicated and distributed further with ease, enduring long beyond the life of the victim.

This legislation sends a clear message that that is a repugnant series of conduct that encourages the abuse of children, for which New Zealand has zero tolerance. I have great confidence in New Zealand’s law enforcement agencies, which have a history of successful prosecutions against the scum who trade in, make, or possess child exploitation material. However, the law in this area is outdated and no longer reflects the ease with which offenders can obtain and share these images. Furthermore, social networking sites, online chat programmes, and other communications tools such as texts and picture messaging, have made it easier for adults to communicate with children. The legislation seeks to address this increased connectivity by criminalising indecent communications with children and ensuring that those who possess or trade in child exploitation material receive a sentence that reflects the very grave nature of the offending.

To achieve that purpose, the legislation makes several core changes. Firstly, it increases the maximum penalties for possession, importation, and export of an objectionable publication from 5 to 10 years’ imprisonment. The maximum penalty for supply, distribution, and the making of objectionable publications increases from 10 to 14 years’ imprisonment. These increased penalties better reflect the seriousness of this offending and the ease with which offenders can obtain and share these images. Although the legislation will increase the penalties for all objectionable publication offences, the extent to which a publication exploits children will continue to be an aggravating factor that the courts must take into account at sentencing. Possessing and trading in images depicting the sexual exploitation of children is grave offending that, in my view, warrants stronger penalties than other types of objectionable publications. This is why the legislation also provides for a presumption of imprisonment for persons convicted of offences involving child exploitation material for a second or subsequent time. This presumption will apply unless the court is satisfied that the offender should not be so sentenced, having regard to the particular circumstances of the offender or the offence.

A further technical amendment introduced by way of a Supplementary Order Paper at the Committee stage of the legislation will ensure that the presumption of imprisonment for child exploitation material offenders applies only when a person has both committed and been convicted of a previous offence, which reflects the current situation under common law. Several factors suggest that the prospect of a prison sentence could be a strong deterrent to such offenders. Although there are low rates of recidivism amongst those who trade in child exploitation material, investigations show that those who do reoffend often do so with a higher level of premeditation and go to great lengths to avoid detection, through the use of sophisticated encryption, pass phrases, and coded communications. Law enforcement agencies have indicated that they are the most desperate to avoid prison.

The new sentencing regime better reflects the range of offending in this area, and both the increased penalties and the presumption of imprisonment for repeat offenders will provide the court with a broader range of penalties that it can tailor to the seriousness of the offending. The legislation also addresses changes in technology by clarifying that possession of objectionable electronic publications includes intentionally viewing the material without consciously downloading it or saving it. The amendments simply affirm in legislation the approach already taken by the courts and ensure that offenders with the particular technical expertise are not able to escape liability by viewing electronic objectionable publications without also saving them.

Lastly, the legislation creates a new Crimes Act offence of indecent communication with a young person. The new offence will apply whenever anyone over the age of 16 indecently communicates with someone under 16. The offence addresses a gap in the law that exists between objectionable publications offences, which require a record of the communication, and the sexual grooming offence, which applies only when the offender takes steps to physically meet with the young person. As with sexual grooming, the new offence will also apply where the person charged communicates indecently with a police constable, believing that police constable to be a young person. The new offence will be punishable by a maximum of 3 years’ imprisonment. Advances in technology mean that offenders with exploitative intent can now communicate with children with ease. These indecent communications with young people can occur in a variety of old and new media including text and picture messaging, internet chat, and telephone, and a specific offence is needed to ensure that this damaging behaviour is criminalised regardless of how it occurs.

At the Committee of the whole House stage I introduced Supplementary Order Paper 67 to the Objectionable Publications and Indecency Legislation Bill, which makes further amendments. The first amends the Accident Compensation Act to ensure that cover is provided for mental injury caused by the new offence of indecent communication and the existing sexual grooming offence in the Crimes Act. In addition, the bill now amends the Vulnerable Children Act to ensure that anyone convicted of indecent communication with a young person will have restrictions placed on their employment in core children’s workforce roles.

A final amendment addresses a gap in the law to ensure that New Zealanders who assist foreigners to commit sexual acts against children overseas can be held liable as parties or accessories to the offence under New Zealand law. This will ensure that there are no inconsistencies between the culpability of New Zealanders who assist other New Zealanders to commit certain crimes overseas, and New Zealanders who assist foreigners to commit those same types of offences. The measures in this legislation send a clear message that possession of, and trade in, child exploitation material are abhorrent acts that encourage the abuse of children, and that indecently communicating with children is serious conduct prohibited by law. Can I note that I have welcomed the bipartisanship the House has displayed in supporting this legislation, and I commend it to the House.

Well, there is no doubt that the material that this legislation addresses is certainly objectionable and that there do need to be strong measures in place to deal with the perpetrators. Therefore, Labour is supporting this legislation.

I will make a broad comment in my comments in the final reading of these bills, though, and that is to echo the comments that Labour members have made right throughout the discussion on this legislation that the amendments to five pieces of legislation have a broader effect than simply on objectionable material as it relates to children. What we are doing today is a talking about a measure in the legislation that increases penalties and is trying to bring other legislation into line with the online environment, but its impact goes wider. But this legislation does not—and this is, I guess, our main problem with it—fit into an overall strategy for dealing with objectionable material generally; that is, child exploitation, cyber-bullying and abuse, particularly online, which is affecting and also perpetrated by children. So there are a whole lot of wider issues within which this particular piece of legislation sits, but the legislation does not fit within a strategy because there is no overarching strategy.

I think that is our plea—that is our plea. A strategy includes legislation—we have another bill before the House called the Harmful Digital Communications Bill, which Labour has significant problems with because the discrepancies that lie within it, between the online and physical environments, are such that we think it needs substantial amendment before it can get our support. A wider strategy also has to include education measures and awareness-raising—education measures that are wide throughout the community and that actually give some certainty and reassurance to the community generally that the Government is trying to address behaviours that can, down the track, lead to worse outcomes, where we end up with people who are being prosecuted for these sorts of crimes. Why is this not fitting within a wider strategy? That is my question to this Government and to the Minister Amy Adams. Why is she, as the Minister of Justice, not working with the Minister of Education and the Minister for Social Development, etc., in a cluster group to look at a wider strategy for behaviours that lead to harmful behaviours online and to do with child abuse and measures that particularly have an impact on children?

The other part of the wider strategy that is needed is for these measures to be proportional in the online environment with the physical environment. By “proportional”, I certainly do not mean exactly the same; I mean proportional—really proportional—and consistent across the different issues. I am going to address that in a minute when I talk about the penalties imposed in this legislation and also about the impact on age in this legislation. We do not think there is consistency, and we think there are a whole lot of questions that arise around this.

The final thing around strategy is that we should not be out of step with other jurisdictions—other countries with which we closely identify. I do not think that this particular legislation has major issues with that, but the Harmful Digital Communications Bill, which is another bill on the Order Paper that is coming back to the House, certainly does. Therefore, with all of these pieces of legislation, there needs to be a wider look at how they fit within a wider strategy.

I just want to turn to the penalties and the discrepancies that Labour members and, I think, other members have pointed out during the discussion on this legislation. There are two reasons for this—the first is the actual increase in penalties. There are two particular penalties that have been increased substantially in this legislation. One is for the possession of an objectionable publication, where the penalty has gone from 5 years’ imprisonment and has doubled, so it is now at 10 years. The second is the penalty for the making of an objectionable publication, which is a worse crime. That has gone from 10 years to 14 years, which is a significant penalty. These are objectionable publications penalties. I am not going to comment on the actual penalty, but what I do want to do is draw a parallel with physical offences.

In the physical environment, sexual connection with a young person under 16 and an indecent act on a child under 12 carries a penalty of 10 years, and sexual connection with a child under 12 carries a penalty of 14 years. So juxtapose that with the making of an objectionable publication and the actual sexual connection with a child under 12—both penalties are at 14 years. I believe that we are going to be hearing from the judiciary, from the Law Society, and from the general justice sector around the proportionality. There is a proportionality issue here, and I think that needs to be noted in this reading.

Also, with regard to penalties, it was pointed out by several submitters, plus in the regulatory impact statement, that increasing penalties for objectionable publication offences risks distorting relativities with physical offences, which is what I have just said, and that the effect of increasing the maximum penalty is difficult to predict. So although judges will view an increase in penalty as a signal from Parliament that this type of offending is considered serious, the maximum penalty for the offence is only one of many factors that a sentencing judge considers, and there is no evidence—there is no real evidence—that increasing these penalties is actually going to have the impact. This goes to my point about the wider strategy and the education awareness—dealing with the behaviours that lead to these sorts of crimes—which is where we should be turning our attention.

I just want to quickly touch on the age issue. My colleague Jacinda Ardern actually raised this several times during the Committee stage. New section 132B, inserted by clause 7 in Part 1 of the Objectionable Publications and Indecency Legislation Bill before it was divided by the Committee, is where it states the exceptions to offenders being sentenced. One of the exceptions in particular circumstances is if the offender is under 20, so there is room there for an exception for being under 20. This is an exception. We do not have an issue with that. What we do raise the question about is where the age of 20 came from. Why is it under 20?

Then new section 124A(1), in clause 13 of the bill before it was divided, states that a person over the age of 16 years is liable to imprisonment not exceeding 3 years if he or she intentionally exposes a person under the age of 16. Jacinda Ardern went and looked at the Crimes Act and questioned why it was 16, because the Crimes Act talks about 17 as being the differentiating age. The other discrepancy in here is that when you look at the Harmful Digital Communications Bill, the criminalisation level is at 14, so you can actually be hauled up before a judge and can end up in jail for up to 2 years from 14 onwards. So the point is that there is a discrepancy between the ages here. What is the logic? There does not appear to be a great deal of logic, and I am sure we are going to be having further debate on this.

Overall, this bill is meant to address some legislative gaps—some significant legislative gaps. We think that by and large it goes to address those gaps, but we do have some bigger questions about this legislation. I hope that those questions are listened to, that they are being taken seriously, and that the Government will start to look at a wider strategy around this whole area of abuse and the impact on children.

Tēnā koe, Mr Deputy Speaker. Tēnā koutou e te Whare ngenge. I am saying “tired House” because I feel we are all a bit tired. I would like to take a short call. The Greens are supporting the legislation arising from the Objectionable Publications and Indecency Legislation Bill. We have some reservations about it, but we are supporting it. Actually, the internet is the Wild West. The internet is as the Wild West once was before the sheriff came into town. I think this legislation is an attempt to bring the sheriff into town, which is why we are supporting it. We think it needs to happen. As a previous speaker said, there is a need for a more consistent and relative approach to a lot of aspects of internet control, but we think it is important to start addressing those, and it would be good to do them consistently.

However, the harder question is why now that we have the internet do we have this enormous proliferation of people who want to watch hideous images of exploitation of children. We can individualise that and say that these people are sick, which no doubt is a very good argument, but it is more than individual. There is a culture across the planet that regards children, and to some extent women, as objects for the kind of sad gratification that is based on the idea of power over an objectification of the vulnerable. This legislation is going to deal with some of that—that is why we are supporting it—but it cannot address the fundamental outpouring of sickness that we have around our sexuality. We do not want to talk about that often, but actually this legislation does bring it up.

The number that the Minister of Justice has quite rightly named of people who are guilty of this kind of behaviour tells you we have got a problem. It is not about being moralistic; it is about a deeper question. It is not about being righteous and sanctimonious; it is about asking how we got here. How did we get here and how did the internet, that supposed bastion of greater democracy and freedom, become a bastion of abuse? You can be damn sure that our children are not benefiting, whether they are victims of the actual abuse or whether they are unsupervised and get to see it in the objectification of their childhood. So something is very wrong not only in the state of Denmark, as Hamlet said, but in society when we see this kind of abuse.

This legislation will address some of that. We do have some reservations. We are supporting it all the way, but we have reservations around the sentencing. Given the depth of the sickness across the society, actually giving more prison sentences will not solve the problem. The floodgate is open, and without a transformative, educational, rehabilitative, intense process for the people who are going to be locked up, we are not going to make change. Locking them up for longer is not going to change the illness in their consciousness. So we do not want to be under any illusions about how locking people up for a long time will fix the problem and stop other people who are flooding in to join this particular sick trade or this sick process of so-called recreation.

It asks us deeper questions. We would not support the increase in sentences. We do not believe in going from 10 to 14 years’ imprisonment—not only for the arguments for consistency with non-internet criminal offences but also because we just do not think it is going to work. If there is one thing we should try to test legislation against in Parliament, it is whether it is actually going to work. Just doing things for the sake of rhetoric, and so that we feel we are doing something about these terrible people, is not good law and will not work. I am passionate about changing the way we protect our children from abuse, including on the internet. I am supportive of that 100 percent, when in a way that might work. So, yes, we need to deal with the education rehabilitation programmes that must be available to people who are locked up for this but we must also look at ourselves in the mirror.

What is going on? Why is it people we know—and they are people whom we all know, statistically—who indulge in this? What is driving it? I would argue that the marketing of the sexualisation of children is something that goes on across our society. You only have to see the clothing for young girls under the age of 10. You only have to look at the children’s beauty contests. It is much worse in the United States than it is here because we have actually resisted some of this, but we need to resist it. We need to stop promoting an idea of beauty that is actually sexualising children. OK, we have got good boundaries but not everybody has.

💬 Carmel Sepuloni: But the Minister of women’s affairs thinks they’re a good idea—pageants.

Well, the pageant is part of the problem, and it always was. We actually need to do something about protecting children right across society so that we do not feed the sickness—that children are objects for the gratification of adults—in any way whatsoever. So although we support the provisions of the legislation, we cannot see these provisions addressing the underlying problems. We do not support increasing sentences because there is no evidence that that would actually stop people from reoffending—and one thing that would be great is evidence. We also believe that there is a societal context that sometimes the punishment pretends to address but fails to address. Punishment is not going to stop this, but a deep, hard look at our own attitudes in this society, and what we market to our children and what we use the internet for, is required.

However, we will be supporting the bill. We do think it is important that we do something about this, and we recognise that it is a genuine attempt, even though we feel that it will not substantially change the sickness in a society that objectifies women and children and makes them vulnerable to predators. We have to ask ourselves in what way does our infrastructures, social structures, and businesses collude with the predators, rather than just say: “Lock up the predator. Throw away the key. Block them from the internet. Everything will be fine.” It is not fine. It is sad and it is sick. We are part of it, and we can be part of changing it. Therefore, we will support the bill, but we would like to see a far less punitive but more substantial approach. Yes, these crimes should be named as crimes, but let us look at where the crimes actually come from. Kia ora tātou.

I rise on behalf of New Zealand First to make a short contribution to the debate on this legislation. New Zealand First will be supporting these bills. At the second reading of the original bill, however, my colleague Denis O’Rourke quite clearly outlined our reservations and our concerns. Interestingly enough, although I admire Catherine Delahunty as a hard-working member of this House, the reasons articulated by Mr O’Rourke were the complete opposite of hers.

Mr O’Rourke articulated New Zealand First’s belief that there is a need for severe, if not more severe, punishments inside this sort of legislation. We base that upon the concept of the invisible man. It is a concept that has been talked about since the internet has been around. If human beings believe they are invisible and will not get caught, then there are some very strange things that they will do, there are some very strange places that they will go to, and there are some behaviours that they will perform that they would never perform if they thought they were going to be seen—e.g. the invisible part—or if they thought they were going to get caught. And then, in terms of getting caught, they have to weigh up in their own minds whether getting caught, and the punishment, is worth taking this chance.

So for us in New Zealand First this issue is about the invisible man theory, and it is about updating several pieces of legislation to address what the Minister quite clearly articulated as issues that have risen in magnitude since the invention and widespread use of the internet. So New Zealand First will be supporting the legislation. We would like it to go further in certain places. I want to acknowledge the Minister’s explanation of her Supplementary Order Paper at the Committee stage, for two reasons.

One is the ability for recognition with the ACC in respect of mental injury. I think that if the Roast Busters case highlighted one area where we have got some issues it is that although those young ladies suffered trauma they could not access trauma support—special access to counselling had to be provided. Because no actual crime was committed and no case was brought, they could not, under current pathways, access ACC or access trauma support. In a way, that Supplementary Order Paper recognises mental injury, from child grooming and other situations that take place that are objectionable, through this medium. The second thing that the Minister’s Supplementary Order Paper did was close this loophole about New Zealanders who assist foreigners to perform such acts, or take part in such acts overseas. That Supplementary Order Paper is a lot to put in a piece of legislation at the Committee stage, so I certainly appreciated the Minister standing and speaking on those things.

At the time of the Committee stage I also mentioned—as did my Labour colleague Clare Curran—the Harmful Digital Communications Bill. We are updating, modernising, and amending several pieces of legislation with that bill, and we do need to make sure that there is a coordinated line in how we are going to treat this across all pieces of legislation. I hope to have further discussion with the Minister Amy Adams around the Harmful Digital Communications Bill before it returns to the House, in terms of whether these changes actually provide the sentencing mechanism required inside these other pieces of legislation so that, perhaps, in the Harmful Digital Communications Bill we can set in place the Approved Agency and we can set in place the requirements of the service providers—the take-down notices and those other things.

But possibly we do not need to create another sentencing regime, because they can be covered under these bills. That is a conversation I would very much like to have with the Minister, going forward. However, we believe this is legislation that must be here, and New Zealand First will support it. We would have liked to see it go further, but we will support it as we go on. Kia ora.

Far be it from me to stand between the hard-working members of this House and their Easter adjournment, so, with your indulgence, I will keep my call on this legislation arising from the Objectionable Publications and Indecency Legislation Bill relatively brief and around four key themes.

As far as I can see, the major implication of this legislation is around ensuring that child protection remains paramount to this House and in writing legislation. I think this legislation does address some key points. There are some things that many on this side of the House had some reservations about during the passage of the legislation. One of them was around the sentencing presumptions and the issue around sentencing to curb reoffending. There are provisions within the legislation to deal with penalties for the manufacture and the distribution of the objectionable material that potentially are inconsistent with the penalties with which an offender will be liable for undertaking the actual abuse itself. I understand—well, I hope—that at some point our legislation will start to deal seriously with the issue of child abuse in terms of the penalties that are imposed upon offenders of that.

I believe that some of the work that some of the Justice and Electoral Committee looked at goes some way to addressing that, in terms of the repeated child exploitation. The committee agreed that providing judges with a sentencing regime to reflect the seriousness of the reoffending would send a strong message to potential offenders around the exploitation and abuse of children. There was also a concern expressed about sentencing presumptions within legislation with these bills and within others, and I think it was right to raise that as a concern, although in this case the members of the committee were satisfied that the seriousness of the offending should warrant that.

Secondly, there was some discussion around the definitions of “objectionable” and “indecent”. There was a bit of discussion around those terms. In recent times the term “objectionable” can mean something quite different from in previous years. We live in a modern world where many things transpire, and we are open much more now to images and publications than we were in previous times. So what we might tolerate, what might be objectionable and not objectionable, is a difficult thing to define. We do trust in our judiciary to actually hold some standards for that and to make calls based on the specifics of the cases before it.

Thirdly, I want to talk about the submitters. There was a view, a concern, around images that might be held on an electronic site that were not necessarily provided by a particular internet provider. The provider is just a portal through which people can view the images. The submitters were concerned that providers may then be liable and may have some penalties imposed upon them. But this was well traversed during the passage of the legislation, and assurances were given that that would not be the case.

Finally, I want to refer to clause 13, which does provide a new offence under the Crimes Act. It raised some issues in the committee and with submitters about the potential for entrapment, but the committee, after some deliberation, was satisfied that the law enforcement agencies are fully aware of, and experienced with, the issues of entrapment, and that the judges have the discretion to exclude evidence that they believe was improperly or unfairly obtained. So I feel satisfied and we on this side of the House feel satisfied that those issues have been traversed. We do support the legislation.

On that note I would like to wish members of this House a very enjoyable Easter adjournment. There are some significant things that are happening over this time, including Anzac Day, which is a significant day—100 years since Gallipoli. So, on that note, I wish you all a very happy Easter and a reflective time over Anzac Day. Thank you.

Bills read a third time.

Members, in accordance with leave given yesterday, the House stands adjourned until 2 p.m. on Tuesday, 28 April 2015. Enjoy the adjournment break. Good afternoon.

The House adjourned at 4.14 p.m.