Harmful Digital Communications Bill

Part 2 of this bill is, essentially, updating other pieces of legislation. It concerns amendments to other Acts concerning the use of digital communications. They include the Crimes Act, the Harassment Act, the Human Rights Act, and the Privacy Act.

The first point that I would like to make is to thank the Minister of Justice, who gave us 10 minutes of her time earlier during the debate on Part 1 to actually get up and give an explanation as to why she had introduced such a large set of amendments. The amendments she has introduced in Part 2 are, essentially, just additions—mainly technical points around those four Acts that I just mentioned. One of the points I would like to make is that one of those Acts, the Privacy Act—what would be really good is if the Minister followed this piece of legislation before the Committee with the introduction of the substantive changes to the Privacy Act itself that have been promised to this House for well over a year following a Law Commission report 4 years ago, which would make real changes to balance up the privacy provisions for New Zealanders that have been lacking, which the Law Commission recommended that we act quickly on.

Instead, what we have got here is, I think we would say, a worthy part of the bill, and I do not think there was ever a great deal of dissension at the select committee on the need for these four pieces of legislation to be updated, because they needed to be brought into the digital world to include provisions around electronic communication and, essentially, to be modernised. The argument that Labour used at the Justice and Electoral Committee—and it has been supported out there in the community, particularly by the legal community—is that the updating of these four pieces of legislation could have been sufficient to address this issue, rather than introducing a new criminal provision, as we have discussed in Part 1.

Updating the Crimes Act, updating the Harassment Act, updating the Human Rights Act, and updating the Privacy Act would involve dealing with existing legislation that has been well tested and well utilised. Yes, they need to be modernised, but they reflect what happens in the physical world, and the updating of them enables them to be also relevant in the cyber-world and the digital environment, as is rightly so. But what is added to this piece of legislation is a new criminal provision that is active in only the cyber-world. You could call it groundbreaking, or precedent setting, and what it means is that acts of causing serious emotional distress that occur in the digital environment can be prosecuted in only the cyber-environment under that provision. They cannot be prosecuted in the physical environment, so even if there is an act of serious emotional distress that includes a physical act, then it is not relevant, according to that particular provision.

We feel very strongly that the updating of these four pieces of legislation is necessary because this is an important part of the move towards trying to be more effective in the cyber-environment. But alongside this goes an educative role, particularly of the New Zealand Police, which is the agency that does the prosecuting, as to how effectively to use them. It is our concern that this is going to be missing in the equation. It has already been mentioned in previous speeches that the police currently have the discretion about whether they will prosecute. There have been numerous cases that have been before the public’s attention about where there has been cyber-bullying, or cyber-harm, undertaken and where there were already provisions that could have been utilised but were not because there had not been the education of our police force around how to do that. I think there have been a number of occasions when that has happened in recent months, and certainly in the last couple of years.

Our fear is that because of this new criminal provision in the cyber-environment, this bill will create pressure on the police to prosecute children in a court environment when the police may not have had the training or the systems to decide whether or not that is appropriate. That is a real concern, and I think that one of the tests for this bill is just how well the educative function goes with it as to what is appropriate to take into the court environment and what is appropriate to take through the approved agency environment.

There are many different kinds of cyber-harm that can be caused, and when you are using legislation that already is proven and where there is a lot of case law in place such as the Harassment Act and such as the Crimes Act, then our contention is that we should be moving more in that direction rather than using a new provision that has been set up just for the cyber-environment and that has such a broad definition of harm attached to it and where there are so many questions that remain around it as to whether it will be effective.

Labour has produced a typescript amendment in this part, under the Harassment Act, which I do not have in front of me, which is I think at section 17 of the existing Harassment Act, which is, essentially, to ensure that where there is material in the electronic communications that are being used and may be construed as being harassment, where they do not break the law, that measure cannot therefore be used. The amendment is basically taking a measure that exists in the Harassment Act now and ensuring that that is updated to include the cyber-environment, as well. So we consider that that is a practical measure. We hope that there will be support across the Committee for that.

As we have said in previous speeches on this bill, Labour is reluctantly supporting this bill through the Committee stage because we know that we need to take measures in the cyber-environment. We believe that the approved agency route is a sensible route to go down, although we have concerns around the resourcing of that and whether it will be appropriately resourced. We have got serious concerns about other parts of the bill, but we do think that the updating in Part 2 of the bill of these four pieces of legislation is sensible and is probably overdue.

However, our concerns are such that we do believe that there needs to be a review of this legislation after a period of time to ensure that it is actually effective and that our fears have not come to bear. So Labour is putting on the record today that we will be undertaking a review of this legislation, and that will be our position.

I want to thank my colleague Clare Curran for setting out so clearly at each stage of this bill Labour’s position on this piece of legislation. There are, more frequently than I would like, occasions in the House where we are presented with what I would term to be bad law addressing critical issues. By “critical issues”, I mean issues that become highly politicised because there is a real drive from the community for politicians to respond to issues where harm can be done. This is an example of an area like that. Harm can be, and has been, done in this space. There is a need to respond but our concern is that this response is not the right one, yet anyone who stands and opposes the bill then becomes wedged in as not being concerned about the issue. That is almost the worst of all scenarios. I would wager that we will be back here debating something in this space again. There will be some misinterpretation of the law, some 14-year-old sentenced to a term of imprisonment—something that will lead us to reconsider this piece of legislation. You can put that on iPredict now.

When it comes to principles of justice, in coming to Part 2—because we are in this part debating some significant pieces of legislation that already exist, primarily around the Harassment Act and there are amendments to the Crimes Act 1961—they are, essentially, amendments to existing pieces of law. I think it is important when considering amendments to such significant and well-established pieces of law that we consider a couple of really important justice principles: are we making consistent legislation, and are we making clear legislation? My concern is that with the regime that this bill sets up by amending existing parts of the law alongside setting up a new criminal regime, things will actually become confused and we may even have a two-tier system.

For example, it is my understanding that the new penalties that were debated in Part 1—the 2-year maximum prison sentence and the fine of up to $50,000–have the ability to apply to anyone aged 14 and above. That is my understanding of how the law will be potentially applied. And if that is not the case, then I would have thought the Minister would not have a problem with Labour’s amendment confirming that, actually, it should sit at the age of criminal responsibility, which in New Zealand is 17. Given that that was voted down, let us assume, therefore, that that regime can apply to a child as young as 14. Let us assume that. Can we therefore assume that there is an assumption around the existing legislation that this bill subsequently amends—the Crimes Act, the Summary Offences Act, and the Harassment Act—that the same will apply? Is that the assumption? If so, some clarity on that would be incredibly useful.

The reason Labour is focused on the age of criminal responsibility in how this bill will apply is that that is where the evidence base suggests that actually applying criminal regimes that sit around convictions and sentencing is not a helpful way to deal with children and young people. In fact, I probably do not need to present evidence. That seems, on the face of it, to be a natural assumption. If a child, a 14-year-old—and I call them a child because they are—posts something on Facebook that could be deemed under this law to be in contravention of what this law sets out, do we seriously think a prison sentence is the best way to deal with that? I mean, really? Yet that is what we are setting out in this legislation. Why is it that even this Government has focused on using diversion law, community-based sentencing law, and restorative justice? It has done it quietly but it is doing it. It is doing it because it works. It is a better way to address criminal offending in this space than what this bill is presenting.

This bill is presenting a political solution, not a practical solution. It is also probably going down the track of producing an easier one. For instance, making an amendment to the Harassment Act, as Part 2 does, which in clause 26 then amends section 3 of the Harassment Act: “For the purposes of this Act, a person also harasses another person if—(a) he or she engages in a pattern of behaviour that is directed against that other person; and (b) that pattern of behaviour includes doing any specified act to the other person that is one continuing act carried out over any period.” By definition, that is harassment. By definition that is harassment, and that is the reason why the regulatory impact statement specifically says that it was probably unnecessary to make an amendment to those Acts in order for cyber-bullying, as it has been termed here, to be covered. So it is pretty much a superficial amendment that, again, speaks to the notion of this being a political response rather than a practical response.

But it does go on. There is something in the amendment to the Harassment Act that is specific to the issue of cyber-bullying, as it were. New clause 3(4) says: “For the purposes of subsection (3), ‘continuing act’ includes a specified act done on any one occasion that continues to have effect over a protracted period (for example, where offensive material about a person is placed in any electronic media and remains there for a protracted period).” That is a specific example there—specific to electronic mechanisms for harassment—and, again, it is probably already covered by the legislation. It has been written there in black and white to make it really specific, but I would have thought that that was unnecessary. However, by putting in that level of specificity, has it now meant that we have created a lower threshold for electronic means of harassment than for any other form? I do not think that is the kind of consequence that we wanted from a bill like this, but it may well be what we have inadvertently done.

So, again, if the mechanisms already existed, why would we have focused on that track? Well, because the alternative to Part 2 is actually probably not legislative at all—make an assumption that actually we are covered, get the legal advice that we are covered with the existing mechanisms set out under the Crimes Act, and then move on to what would actually make a difference. For instance, was the Children’s Commissioner engaged at any point in this legislation to talk to young people and children about what would make a difference in their space and in their world, on this issue? I bet if you went to a group of children and said: “Would creating new offences under the Harassment Act and creating a maximum 2-year penalty or $50,000 fine stop cyber-bullying in your world, do you think?”, I would wager they would probably say: “Absolutely not.” And I would wager that if you actually asked them what would make a difference, they would focus on the harm done in peer groups because that is where the harm is primarily done.

If you are focusing on peer groups and harm within peer groups—[Interruption] thank you, Minister Goodhew for rolling your eyes while you are in the chair; I look forward to your wholehearted contribution to this debate, which so far has been somewhat limited—then you probably would have gone to the Ministry of Education and asked what it does in this space already, and what it does with bullying within the school environment. We are, essentially, mirroring that at an electronic level and trying to tackle that same issue but in a different medium. I am sure that schools probably would have come back to the Ministry of Education with some ideas that were very much based on principles about restorative justice within that peer group and environment. Instead, we do what Parliament always does. We respond to pressure by slapping in a law and assuming that everything will be fixed because of it. We dust off our hands and we walk away. That is a cop-out on this issue. It is bigger than amendments to the Harassment Act. It is bigger than amendments to the Crimes Act. I know—

💬 Hon Paula Bennett: Government can solve everything!

I know that Paula Bennett knows that. No, the Government cannot solve everything, and yet it is pretending it can with this piece of legislation. It is pretending it can with law alone and we know—

💬 Hon Paula Bennett: What a load of rubbish.

—it is more complicated than that. I would like it be on record that the Minister just said that that contribution was a load of rubbish. I have no doubt that even when this law has passed we will still be debating this issue. We will still be debating this issue once this law has passed.

So I want to just recap. I would really like to see the Minister respond to some of the questions around the age of responsibility. I would not mind hearing her comment on, if this is the right thing to do, why the UK looked at this issue and not do it. Why did the UK, when it looked at this issue—because we have seen some of the dreadful cases in the UK—avoid criminalisation? Instead it went down the path of greater education and using existing law with serious threats by adults that needed to be dealt with. It is the same with Australia. This bill focuses on what to do when harm has already happened, instead of trying to prevent harm, particularly amongst young people and children, which would have been a much better approach.

Well, it certainly would be great if we did not need legislation like this, but we are passing this legislation because it is very much needed within our society. For those people who would think that we do not need legislation like this, I would say that they need to get out of the little bubble that perhaps they might live in and get into the real world, because this is absolutely needed. So what we are going to do is talk about Part 2 of this bill because it is incredibly important. Essentially, what is happening in Part 2 of this legislation is modernisation and getting these various Acts up to date to ensure that they cover what is required in a modern society.

When I was at high school, if you wanted to—not that I wanted to. But if somebody chose to harass somebody by taking an inappropriate photograph of them, they probably would have needed to remember to take their camera with them, then go down to the shop and get the photo developed, and then actually print it off and send it around to get multiple copies and photocopies. It would have probably taken at least 5 days to get a turn-round on it. Things were not so flash in the 1980s; it took a little bit of time for things to happen. So we do need to modernise these Acts to ensure that we are covering what is going on, because the effects of cyber-bullying, in particular, are absolutely just devastating, particularly for young people within our society.

If you look at some of the research that has been done on this, there was a report done by Victoria University, which I am sure has been talked about as we have gone through this bill. Professor Vanessa Green, who was the head of Victoria University’s school of education, psychology, and pedagogy, along with a team of postgraduate students, did some study, and there was an interesting quote from her. I will read it out for you because I think it is pertinent to these particular parts, in Part 2. She said: “The internet has made bullying a more complex issue than it was 20 years ago and, as a result, it requires a more sophisticated response. The old methods may not be as effective as they were. We need to be thinking in a more creative way about how to address bullying.” So that is why we do need to ensure that, for example, in these Acts—particularly, say, in the Harassment Act 1997—the insertion of the words “electronic communication,” is in these, because in 1997, which to most of us seems not that long ago, clearly no one thought of using electronic communication as a form of harassment. So we need to insert those words there. We need to insert in the Human Rights Act, from 1993, after the words “radio or television”, the words “or other electronic communication”, because this is so much a part of our society now.

I just heard the previous speaker, Jacinda Ardern, getting perhaps a little bit distracted, but, nevertheless, she talked about the fact that, actually, this is not the way for us to handle it, but that, in fact, the way to deal with this kind of bullying is to get better education, to do mediation, and to get groups to do that. Actually, that will be quite effective. In my time as a school guidance councillor that was incredibly effective in terms of getting peer groups in, working with them, and looking at those particular issues. But I think what we need to make sure that we understand is that this Act does not preclude those kinds of interventions from occurring. Simply because we are making it against the law to bully people online does not mean that we are saying that other forms of intervention are not possible.

In looking at the functions and powers of the approved agency, it has powers to investigate complaints. It has, under clause 8(1)(c), the ability “to use advice, negotiation, mediation, and persuasion (as appropriate) to resolve complaints:”. So that is contained within the law. It will be a part of the law that that agency will be empowered to use all of those interventions that are available in the tool box, but what we are making sure that we are doing is not necessarily elevating everything—which is the only option at the moment—to a full-blown sort of legal process through the District Court or otherwise. I think that it is important that we continue to move forward on this. It is important, as I say—coming back to Part 2—that these particular Acts, the Privacy Act—[Bell rung]

Order! Unless you get the call, you cannot continue talking.

Mr Chairperson—

💬 Hon Ruth Dyson: This will be a relief after that.

I did not expect to hear that. It has taken quite a long time, but after almost two decades, it is nice to see a thawing in my trial separation with my Labour Party ancestors. On this issue we find common cause because, as I said earlier, it is a case study in bad lawmaking. All of the elements are there: you have a high-profile case that leads to a reaction, where any lawmaking appears to be a solution; you have a solution that will erode our liberties, and yet not seriously mitigate the harm; and, at the end of the day, the politicians end up looking like they have done their job—they have done something—but the welfare of citizens has not been improved.

As a little bit of insight into why this may be: I am a recovering electrical engineer, and one of the things that our profession has done is produce Gordon Moore. Well, we did produce Gordon Moore, and he produced Moore’s law. Moore’s law will tell you that approximately every 2 years the total power available in terms of computer processing speed doubles, and that has meant a couple of things. It has given us some of the impetus for this bill. It has meant that hate speech can spread farther and faster than at any previous time in history, and that certainly scares people. But it also means that the remedies for hate speech and bullying are more sophisticated than they have ever been before, and we see those remedies coming from those very hosts of online intercourse—the Facebooks, the Ask.fms, or whatever they may be—just as quickly as the problems emerge. So this is, fundamentally, a technological change, but the technological change has provided not only the problem but also the remedy.

It has also opened up a larger and larger gap between an exponentially faster internet, with a larger and larger velocity of transaction, and a Government apparatus that, as Kris Faafoi pointed out, leaves you with 4 days before there can be any response. We had a speaker earlier—in fact, the first speaker in this Committee stage—who alluded obliquely to a political party that is not in this House but that has been involved in some scandal recently, and it is interesting that she raised that question because, first of all, the individual involved is among the most litigious in New Zealand politics today. He is someone who would actually use and abuse this law—much as the Star Chamber was used and abused—to silence his opponents. But also that entire scandal, if there is any mercy in the world, will by tomorrow have been fit into a 96-hour period during which, for the whole time, the approved agency would not have been able to make a useful response. That is, funnily enough, the result of Moore’s law: there are physical underpinnings to these occurrences.

I have gone on before about why criminalisation cannot be supported.

💬 Tracey Martin: It doesn’t apply. It doesn’t apply, Mr Seymour.

I have to say that I am listening to some interference from over there that reminds me of a blogpost that I saw recently on a popular blog, asking the question: “Is Tracey Martin the full quid?”. That is the kind of posting that might well be silenced by this bill. But I return to the subject.

I have put forward a Supplementary Order Paper on this bill that would make a very simple change that would deal with one of the most egregious and demonstrable offences, which has been made possible by modern technology, and that is a new offence that I think we could all live with because it will not spread beyond scope. It is easy to prove. It is easy to disprove. It is easy for the law to discover whether the offence has happened and is deserving of punishment. And that offence is, simply, when a person has made an intimate digital recording, with or without the consent of the recordee, and has then propagated it across the internet—propagated it rapidly, as you would expect in an age of increasing computer power—that is an offence. I do not think there is anyone in this House who would disagree that that should be an offence. The Supplementary Order Paper that I have put forward asks that that be put in its proper place, in the Crimes Act—not by creating new offences.

That is why this legislation, and the episode that led to it, is a perfect example of bad lawmaking. You had a high-profile incident. The agencies that were supposed to deal with it were incompetent and did not deal with it. The laws that existed and that were supposed to be enforced were not enforced, and today we find ourselves, rather than addressing that problem, creating a new agency to be approved, and new laws, in order for the same problem to be targeted. If you were a Martian who had recently landed on Earth—not thinking of anybody in particular—then of course one would think that that is completely nuts.

So I appeal to the Committee, its conscience and its sanity, and to those who want our profession to be well respected, to say that we should not—as Jacinda Ardern put quite eloquently, I thought—try to pass a law and be seen to do something and then to wring our hands and wash them clean. Actually, we should put the legislation and the public policy measures that are required in the place they really deserve to be. That place is the Crimes Act. That is creating a real crime, responding to the real technological change that we face, and responding to something that is egregious, that is easy to demonstrate, and that has been made possible by technological change. We should put that in the Crimes Act—that is to say that if you make an intimate digital recording of a person and propagate it across the internet, or digitally, without their consent, you have committed a crime.

If that Supplementary Order Paper were to be supported tonight, that would be this House’s insurance against the possibility that this broader piece of bad lawmaking will not succeed. Sanity would prevail, the integrity of the political profession would prevail, and this House would vote down what will otherwise become—and I guarantee this—a textbook example of bad lawmaking, with all the elements of bad lawmaking that we have become so used to seeing come out of this House. So I end my appeal. I think it has become clear to all those in this Committee capable of comprehending simple ideas that this Supplementary Order Paper is the right thing to do, that it would improve the quality of lawmaking, and that, ultimately, it would improve the welfare of all New Zealanders through better public policy. Thank you.

I cannot believe that I am standing here tonight saying that I have actually agreed with two speeches by the ACT member, David Seymour, but I have, so—[Interruption] Ha, ha! Here we go—strange times! Nevertheless, although there is agreement on broad principles around what is good law and what is not good law, on the balance of things, we are supporting this bill at the Committee stage. But we are, as you have heard tonight, very concerned about certain things.

I am going to just briefly touch on what I described earlier as the missing voices in the debate around this legislation, and they are the voices of young people and the people who advocate for young people. The message that is starting to build and come from them is that cyber-bullying will not be beaten by punishment alone. I want to refer to a group called Sticks’n’Stones, which is a student-led digital citizenship project that is based in Central Otago, which is probably quite chilly at the moment, I would imagine. It was minus 4 degrees at Dunedin Airport this morning, just for everyone’s information, and I imagine it is much chillier there. These people are quite heated around this issue and quite exercised around it because they are teenagers, and they are teenagers who have firsthand experience that words can hurt and be hard to escape. They have a message, and that message is that penalties like fines or even jail seem more like a scare tactic than a solution, and although they might stop people from cyber-bullying out of fear in the short term, they are highly unlikely to change the mindset of bullies.

I think that this really just reinforces what my colleague Jacinda Ardern said before. It is in the peer group that the work needs to be done. It is not just the peer groups of teenagers—although that is pretty important, because teenagers go on to become adults with learnt behaviour—but the peer groups where people are active in online communities. My colleague David Parker, earlier in this debate, referred to the forums on TradeMe, which is one of the areas where there is a lot of cyber-abuse. I know that TradeMe is very concerned and keen to have the safe harbour provisions in this legislation implemented so it feels it is protected from defamation cases and from liability. In respect of the peer-group behaviour and the role of the internet service provider, the fact is that everyone along the line has to take some responsibility, and legislation alone—particularly bad law, and there are parts of the law that we do consider to be bad, and badly written—is not actually going to address the problem.

We have touched on the criminal provisions on a number of occasions tonight. We have touched on the safe harbour provisions, and the fact that the perhaps unintended consequence of this legislation is actually that it will legally prolong the issues of cyber-offensive and bullying tactics, intimate photos, abuse, etc., as these will be able to be legally kept online for longer periods of time before they can actually be addressed—48 hours plus 48 hours is a long time for information to go viral and to have huge ongoing effects on victims, and yet that is what this law does. Those things are, again, things that are going to bring this legislation back to the House.

The other matter that has not been mentioned tonight is the lack of a defence of public interest and the impact that this law may have on our media. This is actually a critical issue and one that, again, is going to have ongoing ramifications. Despite the work of the Law Commission that was done, and despite the fact that there were a lot of submissions to the select committee on this matter, the Minister of Justice refused to include an exemption for media in this piece of legislation, which means that, therefore, there is no specific public interest defence that can be used in a mediation or a District Court process, which is what the Law Commission recommended.

I think that, again, one of the other glaring omissions in this law is what the impact is going to be on free speech. I think that the ACT member over there would no doubt again agree with the position being taken tonight that in the haste to try to put in place measures—which I know were described somewhere else in the Committee tonight as potentially knee-jerk—to try to deal with this issue, there could be consequences for one of our core parts of democracy, which is free speech, and for media, satire, irony, and cartoons. How long is it going to be before we have a media organisation ending up in the District Court defending its right to publish a religious cartoon that has offended a group of people? This is New Zealand and this is 2015, but if this is the direction we are going in, then it feels like we are going backwards in terms of our democracy and our free speech.

That is not meant to be the intention of this piece of legislation, according to the Minister. She said very publicly in an interview on The Nation at the weekend that it would not be the outcome, but she could not point to where in the legislation there is a defence because there is no defence. There is no public interest defence. There is no ability to defend on the basis of free speech.

I want to just reference an example that was provided by Tech Liberty NZ, which was one of the submitters on the bill. It posits the example of a photographer who captures a politician taking a bribe and posts the photo on the internet. By exposing the corruption, he knows he will cause the politician serious distress. It may not necessarily even be a politician; it could be a businessman or it could be whoever, but that person will no doubt suffer distress by having that photo published. In such circumstances the law regards the photographer as intending that outcome. Surely his is an act we ought to encourage, not punish, yet under this bill it would be a crime to which the law affords no defence. That is deeply troubling and should not be the impact of this legislation, but, unfortunately, we are going to see more cases like it, we believe, and issues coming forward that will seriously test whether this legislation works or not.

We know that cyber-bullying is an important issue. I think that everybody in this Committee knows the impact of it, particularly on young people, and of the publication of intimate material and deeply damaging material. We need to have measures to deal with it. Having an approved agency in place is a very important part of those measures, but there are so many glaring gaps in this piece of legislation that we know that it is going to have to come back to this House to be fixed.

I move, That the question be now put.

Motion agreed to.

The question was put that the amendment set out on Supplementary Order Paper 91 in the name of the Hon Amy Adams to Part 2 be agreed to.