Films, Videos, and Publications Classification (Urgent Interim Classification of Publications and Prevention of Online Harm) Amendment Bill

Todd Muller—a five-minute call.

Thank you, Mr Speaker, and—[Interruption]

Order! Can people leave quietly, please.

💬 TODD MULLER: Yes. Thank you, Mr Speaker. I’d like to take a short call on the Films, Videos, and Publications Classification (Urgent Interim Classification of Publications and Prevention of Online Harm) Amendment Bill. I do hope that the Labour Government was taking note of the conversation that occurred last night, because, in a very thorough and very comprehensive debate, what we saw was that for the first time in this Parliament, the National Party, the ACT Party, and the Green Party all hold the same view that this is extremely poor legislation that has been rushed, that hasn’t had good thinking, and that will end up, if it is adopted as it sits in front of us today, having a fundamentally chilling effect on free speech.

There wasn’t a person in this House last night that did not reflect the horror of their shock and experience on March 15th, not only in terms of the tragedy in Christchurch for those families and the wider country, but also that it was live streamed from Christchurch to the rest of the world. All of us reflected on that natural human reaction that when they see something and hear of something that is so shocking, they say there must be a way for this to be prevented. But, as we heard in very good contributions from us—the National Party, ACT, and the Green Party—last night, actually, within 30 minutes of it being online, the major service providers had already voluntarily taken it offline.

So the attempt, as this legislation is seeking to do, to try and legislate a framework with significant pecuniary costs won’t work. It technically won’t work, and, as was very effectively traversed last night, it has been so poorly written that it will give the Crown, through the establishment of a web filter, the sole discretion to decide what is objectionable and what is not. When it is truly horrific, it classifies itself, but when you have a framework—as this Government is proposing—that is subjective, it lends itself in time to political influence, to poor judgment, and a view that someone else’s expression is objectionable and, therefore, should be stopped.

We shall walk down this path of State censorship very, very slowly and with our eyes wide open, and the Minister said it herself when she introduced this bill. She said, “I expect significant changes to occur.” It was as if it was an admission of defeat that, actually, we had not done the thinking. We had put together a rushed bill that won’t achieve its purpose, and, indeed, it is likely to have a chilling effect. When the Government Minister herself acknowledges that there are many holes and she hopes that the select committee will do the heavy lifting for the Government, I think it’s clear to say that you’ve missed the boat.

It’s very, very easy for a Government to say in response to a shocked community, “We must do something. We need to be showing New Zealand that we’re doing something.”, and so they have the ability to stand up in front of New Zealand and say, “We’ve got this restriction of online live streaming.” But the thinking isn’t clear, the legislation is loose, and what it talks to is a lack of focus and a lack of doing the heavy lifting. As National, ACT, and the Green Party have all in a single voice said, this is poor legislation and it has real risks in terms of eroding freedom of speech, and the Labour Government has to listen. They can’t simply wash their hands of it and say, “Well, you know, it was a good enough effort, and let’s see what the next six months provides from a select committee perspective.”

You’re the Government—you have nowhere to hide. Own issues that are difficult, do the thinking, and put good legislation in front of us and we’ll consider it, but not this lightweight effort that we’re reflecting on today. Thank you.

Mr Speaker, it appears Te Paati Māori does not seek the call, and so I would like to have that call to speak briefly on this bill.

Clearly, Mr Muller hasn’t been following what’s been going on, because this is a very important piece of legislation, and is desperately needed to cover events that, tragically, I saw unfold in my own electorate. The fact of the matter is that it is not at all clear that the tools that the chief censor currently has are adequate and speedy enough to respond to the kind of live streaming that we saw. We need absolute clarity. Free speech is very important—I absolutely endorse that sentiment—but we need clarity to ensure that the officials, that the Government, can respond with speed.

Now, it is true that the ability for internet service providers to examine and filter content is a significant step. It already exists in respect of child pornography for very, very good reason. But we need to enable providers to be able to respond and cut off any of this kind of content with the utmost speed, because we know the real contagion effect that this can have—that in moments, people all around the world can be watching that content. If it’s coming from New Zealand, we want to be able to stop it: stop it because it’s objectionable and it’s horrific, and stop it because we really want to make sure that we protect people from the consequences of perhaps sometimes unwittingly seeing that content.

So this is an excellent piece of legislation. It’s timely, and it’s one that is well drafted, with an excellent Minister behind it. I commend it to the House.

I want to start by just acknowledging what happened in Christchurch a couple of years ago, on March 15th, and acknowledge what heinous atrocities and terrorism that was on our soil and to our people. I’ve been in meetings with the ministers recently, public meetings with the Muslim community and interfaith community—and I acknowledge and I appreciate that other members of Parliament outside of the Government have been invited to those—and to hear from people whose families have been caught up in this has been very humbling and sobering.

I’m sure all of the House, irrespective of views on this bill, would share the view that the live streaming of terrorism around the world was appalling and that we simply do not want the terrorist and others who may share his hate to succeed and to see this, and we’d all want to stop that happening again. But this bill is fundamentally flawed, and it really is something, and I’m quite taken by it, when you have a bill in this House and parties as diverse as the National Party, the ACT Party, the Māori Party, and the Green Party—not at third reading, not on the first reading, but before it’s really even got out of the blocks—oppose it. That tells us, I think, quite clearly that the Government got this law wrong.

Jan Tinetti, a new Minister, has taken it over, and so in a sense it may not be her fault, but, actually, it’s her bill. She has carriage of it, and—yep, I heard Todd Muller—she’s talked about real change at committee, and the issue, bluntly, is: can a select committee turn a silk purse out of a sow’s ear? I have my doubts, having read the bill earlier today.

A short point on this is this: this morning in select committee, we were looking at members’ bills, and it’s permissible when members’ bills—because it’s one MP, without the resources of Government departments and thousands of officials—can get bills wrong. They’re sometimes not as tidy as they should be. But for a Government to be putting in a shoddy law in this House that every single party other than the Labour Party opposes at first reading on something that, frankly, should at a level be uncontroversial, it’s not good. It’s wrong, and they should take a look at themselves in relation to all of that.

But, worse than that, this bill unnecessarily and arbitrarily reduces the fundamental freedoms of New Zealanders. I’ve been a little bit jumpy about this lately in issues of the New Zealand Bill of Rights Act and where we’re seeing erosion of freedoms. But, in a sense, I’d suggest I’ve got every reason to be, because we are seeing laws come into this House where the instinct of the Government seems to be “Actually, we’ll control. We’ll take over. We’ll cancel.”

We heard some excellent points. I was reading through the transcript from the other members who’ve spoken in opposition to this bill: Chlöe Swarbrick, David Seymour, and Melissa Lee. Melissa Lee made the excellent point that the chief censor already has the powers—I think it’s a “he” at the moment—he needs at this time in relation to live streaming. David Seymour, I thought, made the excellent point that this bill won’t even achieve anything that’s logically connected to the March 15 terrorist attacks. It’s all sizzle; no sausage—it doesn’t have a logical connection with the atrocities that were committed on March 15th.

The multinationals—in this case, the social media giants; the biggest companies the world has ever seen—did what they could as urgently as they could, and that’s because of course their reputation is such that they have every incentive. I’m sure they wanted to do the right thing as well, to be fair, to get this material—this evil material—down as fast as they could. Our Government, frankly, with a GDP smaller than these companies, didn’t have a hope of doing it in the sort of time that they did. Yet this bill, under the guise of all of that, reduces our freedoms, even though it’s not related to March 15th, or not logically, at least, in reality.

The Government’s taking the opportunity to go with their instincts to take power to themselves, to take control for themselves, and to be able to cancel. I’m not suggesting necessarily that’s a bad motive. They may think this is the right thing to do, but every other party in this House doesn’t, and we see it for what it is.

It’s an easy option, and—I use this word advisedly, because I wouldn’t use it overly—it’s quite authoritarian, what we’ve seen from the Government here with this bill. It’s not 1950s Eastern Europe, but it is quite authoritarian, and talking with Rawiri Waititi—actually, it’s a very good point. I think Melissa Lee made a similar one. What would be the situation in relation to a George Floyd—is that objectionable? Sure, I think you’d make quite a strong case that it was. It was certainly distressing, hugely distressing, and yet that video, which, through laws like this, the Government wants the power to filter—I’m not saying what they would or wouldn’t have done with that one, but I’m simply making the point they could have the power to do something on that. What would happen in New Zealand? Would it be taken down and actually stop a movement that’s very powerful about justice for black people in the United States of America and, indeed, around the world?

I mean, your closer-to-home example is in relation to Oranga Tamariki, and I appreciate there’d be a wide variety of views on that—the taking of babies. Again, is that objectionable? Regardless of anyone’s view, I would doubt there would be a member—I’d hope there isn’t—who’d say that that sort of thing shouldn’t be allowed on the internet and the power of it for people to see. Yet what we’ve got here is a law ultimately about internet filters and the control that I’m talking about, and that’s wrong. It’s overreach. It’s something that shows us the instinct of this Government, and I for one—but I’m not alone—don’t like it.

I don’t think this is isolated. Actually, we’re already seeing in a very clear sense—the Minister in charge of the March 15th royal commission, Kris Faafoi, I think, is the one to shepherd it—a desire to go down the path of hate speech. Actually, we know it’s a situation where, in that regard, they already had a work programme. So, again, like this law, it’s a sense of taking the opportunity to do what the Government wanted anyway, even though in my view it has no clear connection logically to March 15th. It’s an easy option. Dare I say it, it’s a cancel culture, and it’s not a path we should go down. I don’t see this law as isolated. I think we see more of it coming, and the effect on society overall is quite insidious.

Whatever people think about Sean Plunket, the reality is that in the last week or so, he’s been taken off his radio show by large corporates who, in a sense, seem, in my view, and I appreciate they’re free to do it—scared. They’re scared of what’s happening, of identity politics and the cancel culture, and the easy thing to do is to get rid of him. That’s insidious to our culture of freedom of expression.

All that this sort of thing is doing—this bill and what I’ve just talked about—is forcing material underground, where we can’t see it. That’s not the New Zealand way. Actually, we want a culture where we are tolerant of different views, and sometimes offensive views, actually, and so the National Party—and I, certainly, with relish—oppose this bill. But I say to the Labour Party that we’re not alone. Every single party opposes it. If you can’t do a good enough job at select committee, think very carefully about potentially pulling this objectionable bill.

I understand this will be a split call. I call Sarah Pallett—five minutes.

Thank you, Mr Speaker. I’m delighted to stand here to talk to the bill. The objective, which I think we probably could return to, is to update the Films, Videos, and Publications Classification Act 1993 to allow for urgent prevention and mitigation of harm caused by objectionable publications. What we’re trying to do here, which seems to be a point that might be being lost in rhetoric, is we’re trying to address limitations such as live streaming, which doesn’t currently fall within the scope of the Films, Videos, and Publications Classification Act 1993. In addition, the chief censor’s decision on objectionable content risks being delayed because of the statutory requirement to provide written rationale within five working days. Now, you’ll all understand that we didn’t have five working days when that material started to be live streamed.

In addition, the Government cannot require the removal of objectionable content from online platforms, which I, again, think that across the House we would all agree that the content from that shooting that day should not be available on online platforms. Additionally, the responsibilities of internet service providers and online content hosts are unclear, and clarification is needed for their benefit as well as for ours. Also, current instances of internet blocking are operating without a clear regulatory framework to guide their use.

Now, the important thing to look at here is that the bill makes live streaming of objectionable content a criminal offence. Objectionable content is something that I think we are not confused about. “Objectionable” is deemed “likely to be injurious to the public good.”—i.e., torture, sexual violence, terrorism, and child sexual abuse. The slippery slope argument is not one that I find powerful. I think that we are all clear that incidents such as the acts of terror that we witnessed on that day are objectionable, and I would really like to challenge anybody who feels that streaming information like that and images like that across the country without restriction or the ability to prevent them being spread, as they do, like wildfire is something we really need to have the capacity to do. We can’t wait for five days.

Now, I’m going to take you back to 1993. In 1993, I was 26. Waco happened in 1993. Jurassic Park also happened in 1993. Nirvana had some pretty good songs going out in ‘93. But you can understand why the Act that we’ve got, when you learn that the World Wide Web itself was born publicly—that software was, basically, put out in 1993 in the public domain. So you can understand why the Act as it stands is not fit for purpose. The world has changed a great deal since 1993.

Most of us MPs are pretty familiar with social media and how it works. We use it extensively, some of us use it more than others, and the internet, as we know, can be an enormous power for good. Search engines are extraordinarily helpful things—for example, where would we all be without Bing?—and the internet can bring us together.

Now, I’m from Christchurch and my electorate sits very close to the Al Noor Mosque. That the shooter could commit these hideous acts of terror was absolutely horrendous enough, but what we knew when we were in lockdown on that awful day was we were receiving messages from our children who were in school under lockdown, who were having this live streaming being pushed to their phones on auto play, and they had no capacity to stop it. They were in lockdown—if you can imagine—terrified, watching these images, and powerless to stop them.

Now, I thank Mr Seymour for his actions in the University of Canterbury that day. My understanding is that he was supporting the students. I do hope that he wasn’t sharing the video, but I have no understanding—[Interruption]—of that. My understanding was that he was supportive. I am grateful to him for that—genuinely, I mean that.

💬 Simon Court: Well, you didn’t need to say the last bit then, did you? That is just ridiculous.

Thank you. But what I would like to do is return back to the benefits and—

💬 Simon Court: Point of order, Mr Speaker. I’d like that member to withdraw and apologise for that comment.

💬 DEPUTY SPEAKER: No. Carry on.

Thank you, Mr Speaker.

💬 Nicole McKee: Point of order, Mr Speaker. The member made an accusation against our leader, and I think it would be relevant that she withdraw and apologise.

No. I was in the House when that debate—I was presiding. I know what was said, and the member accurately said what was—it was not out of order, and that’s my ruling.

Sarah Pallet’s time has ended. Rawiri Waititi—five minutes.

Thank you very much. Unfortunately, Willie Jackson had taken most of my time and I missed the call, and I was supposed to go before Simon Bridges, and he’s taken my thunder. But I’ve been in a storm over the last couple of days, so I can allow him to have that.

It’s nice to make a contribution to this particular kōrero, the Films, Videos, and Publications Classification (Urgent Interim Classification of Publications and Prevention of Online Harm) Amendment Bill. We too have problems with this particular bill. There’s a lot missing in regards to the liberties of the public and the freedoms of the public to be able to post different things. It’s not that we support the very videos that you were just talking about, and in no way do we support the atrocious videos shown in the mosque shootings. But I too agree with the member Simon Bridges around the ability for the public to bring to the fore issues like the George Floyd killing by the police in America and the Black Lives Matter movement that came out of that.

Also, the uplift of tamariki mokopuna by Oranga Tamariki in Hastings also would be affected by this particular bill if we do not look at tightening these particular issues. Also, the ability to show discrimination and all those types of issues that on every day, people who are of marginalised communities, those who are discriminated against—and, quite often, the indigenous peoples of this country do not have the ability to capture any of that type of information.

So we are not very supportive of the bill as it lies, and we would like an opportunity to get to the point where we can tighten up what is in this bill to allow us to have these particular issues addressed in this particular bill. So, in saying that, the Māori Party votes against this particular bill and, obviously, looks forward to the discussions where we’re able to implement public freedoms and also give the voice to the marginalised and disenfranchised, and that they are not lost on this bill.

I rise to commend this bill to the House, and I note my colleague’s comments that Jurassic Park also came out in 1993, with the previous Act. As what my children would describe as a dinosaur, I need to remind the House that in those days, it was unusual to have an email account. We are dealing with a very different world. It is absolutely vital that we address those issues. This is a first reading of a bill that is going to be going through a long process, and I am delighted that we are going to be having this debate, because it’s really, really important.

I remember the Ides of March—I remember the 15th of March. I remember as a mother with children who have cellphones and access to the internet how concerned I was that they would inadvertently or—teenagers being what they are—recklessly stumble upon something. I think that we have all heard, over the weeks and years and months since, just how traumatising it was for people to stumble across that material. There is also the point that for victims of that violence—just as victims, for example, of sexual offences are protected from people learning of their victimisation by suppression orders for their names unless they seek to remove them—it is not helpful to have the details of their abuse and their personal lives known. It is re-traumatising, and I suggest to this House that there is a real parallel there with the victims of the Christchurch massacre knowing that fellows in their community were able to see that material. It is so deeply traumatising.

I am glad to see that we are all in agreement that something has to be done in relation to those points. But what confuses me about this bill is the reaction to it from the other side of the House, because I feel that when you do what a lawyer would do and sit down and actually read the provisions—and I’m afraid I am a lawyer, so I’ve reverted to type—a lot of the concerns that are being raised disappear.

In particular, I hear the concern of my friends across the House regarding the possibility that there might be the banning of important whistleblowing information, such as the uplift of the pepe from the hospital that we saw, and that was an important prod to us all—to use very understated language—as to the extent of the issue that those of us working in the system knew about, and now the rest of the country does, too. So, you know, whistle-blowing and slices of real life like that are absolutely vital to our society, and so of course we must protect them.

Similarly, I heard reference from the other side of the House last night to the case of George Floyd, and, of course, that is something that the member has averted to this afternoon. There, again, is an instance of real life, live streamed footage that has brought about a very welcome and very timely and, in fact, long overdue focus upon social justice issues. We cannot allow a piece of legislation to go forward that would curtail that sort of whistle-blowing, if I may call it that. But this piece of legislation doesn’t.

Again, we had concerns raised on the other side of the House about the possibility that an innocent broadcaster—so we’ve got innocent bystanders, and now we also have innocent broadcasters—who is someone who is filming something innocuous that becomes appalling, and they are still broadcasting. Would that be then considered somehow a criminal act under section 124—and additional letters? Would that be a criminal act?

So these are the issues that I think have been raised, and I think that if you actually look back at what it says in the legislation, a lot of those concerns disappear. So, Mr Speaker, with your leave, I’m going to do what a lawyer does and I’m going to look at the Act. So what I want to direct everyone’s attention back to is actually section 3 of the “Jurassic” Act 1993, because section 3 defines the meaning of “objectionable”, and it is one of three sections doing so. It’s really, really important to look back at, because if we do look back at it, I don’t think there’s any way the baby uplift, the George Floyd whistleblower broadcaster, or the innocent bystander would ever be caught, and that provision—that definition of “objectionable”—has not changed in this new bill. That’s really crucial.

So I want to just take you, if I may, to that section. If you look at section 3, section 3(1) states, “For the purposes of this Act,”—this is the 1993 one—“a publication is ‘objectionable’ ” if it depicts material that is “likely to be injurious to the public good.” Now, if you flip at that point, down to subsection (4)—lawyers love this stuff, but my friend on the other side of the House is disappearing—

💬 DEPUTY SPEAKER: Order! The member should not refer to—

Oh, my apologies, sir. My apologies—withdrawn. “In determining for the purposes of this Act”, says subsection (4), “whether or not any publication … is objectionable … the following matters should be considered:”, and I draw the House’s attention to “(a) the dominant effect of the publication as a whole: … (c) the character of the publication, including … in relation to … social [matters and] other matters:”, and also “(e) the purpose for which the publication is intended to be used:” and “(f) any other relevant circumstances”. Now, what I would strongly say to this House is that that precludes from the definition material of obvious social and political value such as the George Floyd video, and it precludes the baby uplift videos. Those are matters where it is about political speech, they are matters of social importance, and that in itself should be cover.

You see, the thing about this bill is it’s not actually changing anything except the method of delivery. It is addressing the new method of delivery of this material. The fundamental ideas about what is objectionable and what is not have been with us since 1993, and I think that is really important to consider.

The next point I would just like to bring the House’s attention to is the point about the innocent broadcasting bystander. So that is section 124AB, and this is the criminal offence of live streaming and the possible criminal culpability of that. But, you see, in order to be prosecuted or convicted of such an offence, one has to know or have reasonable cause to believe that the material one is live streaming is objectionable. Now, in that case, it seems to me quite clear that no one is going to define our poor innocent broadcasting bystander as a criminal. I commend this bill to the House.

The question is, That the Films, Videos, and Publications Classification (Urgent Interim Classification of Publications and Prevention of Online Harm) Amendment Bill be considered by the Governance and Administration Committee.

Motion agreed to.

Bill referred to the Governance and Administration Committee.