Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill

Tēnā koe, te Māngai o te Whare. Tēnā koutou katoa. I move, That the Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill be now read a second time.

Can I begin by acknowledging Andrew Bayly and also Todd Muller. The support in the House today for members’ bills has been unprecedented, and I think it’s worth acknowledging, and I’m hoping to follow in both your footsteps, can I say. I particularly would like to thank the 74 submitters and the 22 oral submitters on the bill, and I particularly want to acknowledge advisers from the Ministry of Justice, the Office of the Clerk, the Parliamentary Counsel Office, and also Marion Clifford, who has assisted me with some drafting. It’s a good opportunity to recognise the leadership of Ginny Andersen and other members of the Justice Committee, and I do particularly, though, want to acknowledge some of our Opposition participants, and particularly the Hon Simon Bridges, and Nicole McKee from the ACT Party. They were incredibly generous in engaging in the process as the select committee considered the bill.

I do want to highlight from the select committee report that they have recommended my bill be passed with amendments. It provides an opportunity for me to focus on said amendments, and the very first one, interestingly, was about ensuring that this new section 22 offence actually was limited. And I want to quote from the select committee report: “We are concerned that if intimate visual recordings are not specifically excluded from section 22 of the Act, this could create uncertainty about which section would apply to an offence of this nature. We consider that offending involving intimate visual recordings should be prosecuted under proposed section 22A.” They should have added that is where individuals are the subject of the intimate visual recording. Unfortunately and inadvertently, we were alerted post - reporting back of this report by a submitter that we had, by virtue of that redefinition, removed sexting from section 22 of the current Act. And sexting, for those who don’t know, is when somebody shares a naked and/or nude picture of themselves to another person by way of a picture message. And so my Supplementary Order Paper (SOP) that I will introduce in the committee of the whole House stage will ensure that, under section 22, it will include an individual who is the target of a posted digital communication.

The next amendment that the select committee made was about, essentially, creating an exemption. They didn’t want to over-criminalise; so they have, in their wisdom, within the context of the sharing of images that are intimate visual recordings, provided an exemption for educational purposes, legal purposes, medical purposes, scientific or law enforcement purposes.

Thirdly, they focused on the nature of consent. This, I think, took up quite a lot of deliberation within the select committee. And I know there are others that are contributing today that can speak to this, but, essentially, we have a current standard for consent, and what the bill introduced was a concept of express consent. And it was felt, in engaging with officials, that to do so would undermine the existing interpretations of consent. So they, in their wisdom, have suggested that we remove express consent and go back to consent.

Within that context, the select committee talked about the age of consent. And I find this, actually, the most interesting part of this piece of legislation, because I think it now has implications across the Crimes Act. They have amended clause 4 and inserted a subsection that would mean that someone under 16 years of age actually cannot consent to the posting of an intimate visual recording of which they are the subject. And so at the heart of that was our desire to ensure we protected children. Therefore, children cannot give consent within this context because they’re unable to understand all possible consequences of allowing an intimate visual recording of them as the subject to be posted digitally. We framed this within the conversations in the select committee as image-based sexual abuse. Other definitions include cyber-harassment, cyber-stalking. But, fundamentally, this points to the consequences of this type of offending, and it is about the mental health consequences; it is about how it damages relationships and leads to social isolation.

The fifth change that the select committee recommended was the level of maximum penalty. I proposed three years; they’ve reverted to two years, which is the existing penalty in the Harmful Digital Communications Act. The only point I wanted to make was that there was a difference, because I wanted to acknowledge that image-based sexual abuse is a form of sexual offending, and, therefore, I thought it should have a higher penalty, but I understand the consistency principle in the Act that the select committee have reinforced.

The sixth amendment that they have made, which is a very good amendment, empowers the court to make interim orders, while the application for an order is pending, for the duration of the proceedings. So you don’t have to wait for a finding of criminality before you can take down or disable the material or make an order that the defendant cease or refrain from particular conduct, in order that the defendant not encourage any other persons to engage in similar communications toward the affected individual—so, again, a very sensible amendment to this piece of legislation.

And the seventh amendment, really, was about the definition of victim in section 22A—so the individual who is the subject of the intimate visual recording that really has given rise to the SOP that I mentioned earlier.

Lastly, I want to take the opportunity to highlight an amendment that I proposed. I spoke about the issue of deep fakes in the first reading of this bill. And so I proposed or recommended that the bill also provide for intimate visual recordings that have been digitally altered or created. The select committee didn’t make a recommendation to that effect, and I wasn’t privy to all the discussions that the select committee had. So, in good faith, they undertook due diligence and decided not to recommend it. I have since contemplated that position, and so I have gone to David Wilson, our Manahautū o te Whare Māngai, and he has advised me—and I’d like to quote this, because I want this in Hansard—and I quote: “The amendment essentially treats synthetic intimate visual recordings as another type of intimate visual recording. That is relevant to the subject matter of the bill, intimate visual recordings, and its principles and objects which are the requirements in Standing Order 300(1). In my view, it is in scope of the bill as introduced.” So I’m giving notice to the House that I intend to propose an SOP to clarify that an intimate visual recording includes a digital recording that has been created or altered to appear to be an intimate visual recording of an individual.

I think it’s really healthy for this Parliament to have robust debate and discussion, and it really will provide an opportunity in the committee of the whole House for us to have a debate about synthetic intimate visual recordings, digital intimate visual recordings, and deep fakes, and the current use of and accessibility of artificial intelligence technology and its particular relevance to this bill. I’ve consulted with Tom Barraclough and Curtis Barnes from Brainbox consulting, who wrote a report with the New Zealand Law Foundation, and it was titled Perception Inception: Preparing for Deep Fakes and the Synthetic Media of Tomorrow. Overwhelmingly, 97 percent of synthetic intimate visual recordings or deep fakes are the non-consensual pornography against women. Is there harm within that context? Absolutely. So I guess the proposition is that intimate visual recordings or synthetic intimate visual recordings actually are the same, whether the abuser is known or not. The law is ambiguous, I think it needs to be clarified.

And so I just finally want to thank the House for engaging in such constructive discussion. At the heart of this bill, actually, is the protection of our children and making sure we have fit for purpose legislation. Kia ora.

I call Chris Penk.

💬 Chris Penk: Thank you very much—

ASSISTANT SPEAKER (Hon Jacqui Dean): The question is—sorry.

💬 Chris Penk: Beg your pardon.

ASSISTANT SPEAKER (Hon Jacqui Dean): No, no, no. The question is that the motion be agreed to.

Thank you very much, Madam Speaker. Allow me to begin by congratulating the member who has resumed her seat, Louisa Wall, not only on having had the bill passed, excuse me, “pulled”—I’m ahead of myself on that front—as she has proven so adept at over the years in this House, but on her contribution to kick off this, the second reading, that I thought was very thoughtful, engaging, and indeed compelling. A couple of points within that that she’s highlighted for further consideration of the House at future stages, such as the committee stage, the National Party will go away and consider in good faith. I’m not authorised to muse on those to the extent of indicating how we might view those possible further amendments. But I can confirm before proceeding any further that National does continue to support the bill. That will be no surprise, given that we supported it at the first reading and our members in the Justice Committee have engaged in a way that, I think the member has acknowledged, shows that we are committed to improving—and I say that respectfully, improving—the bill that had originally come to this House, certainly understanding and agreeing with the intent behind it. So there is no problem there.

For me tonight, it’s probably helpful just to set out a few of the key issues and put on record, from the National Party perspective, ways that we think this is a useful addition to the law. We also believe that it is an evolution of the law. It reflects an updating of the law since the passing of the Harmful Digital Communications Act originally—some six years ago, I believe. I think I’m right in saying it was before my time in this House, but that was the Minister of Justice then, the Hon Judith Collins. Since that time, it’s appropriate that our law changes and evolves as society does. And also, in relation to technological change, it’s appropriate that we keep up to date with that. So I found the discussion by the member, Louisa Wall, in relation to deep fakes really fascinating, interesting, timely. And so I look forward to having that conversation further in this House, in a no doubt robust but always reasonable fashion, of course.

Just to put on record a couple of the aspects that our members have found very persuasive; one is around consent. Some notes associated with the bill talk about the consent needing to be given voluntarily. In a way, that’s a tautology. Of course, consent has to be voluntary or it’s not real consent at all. But I think there is certainly some merit to what the select committee had concluded about the desirability of having a notion of consent that was already existing in the law, in the common law. But, having said that, I think that the member makes a good case about the threshold of express consent, given the particular nature of the circumstances in which such recordings might be made in the first place. So I won’t get into any further detail on that, but suffice to say, obviously, it’s the case that if a person doesn’t consent, doesn’t agree with the sharing of a recording that is intimate in nature, then that is, of course, going to cause harm to them in a way that the law should recognise but not tolerate.

We’ve, obviously, considered ways in which the act of sharing a person’s intimate details in this way can have a negative impact on them. It can, for the reason of others reacting to that, perhaps in a way that could be characterised as bullying or shaming and so forth. But, of course, it’s equally the case—and I believe that the select committee heard evidence along these lines—that a person themselves might feel a sense of shame or regret or otherwise in an internal response that is not fair and not reasonable for any human being to suffer. So, for that reason and the associated mental health implications, we of course support the intent of the bill and, as I say, the detail of it as well.

I’ll conclude by just acknowledging a point that was made about the fact of a breach of trust being involved. I think that’s an element that, while we wouldn’t say is an aggravating factor in the technical sense of that phrase, from a sentencing point of view, I think is a key element in what the member is trying to get to here, which is to acknowledge the seriousness of a harm that occurs in a context where people should feel protected, should not feel exposed. And it’s appropriate that the law recognises and does its best to protect against that kind of harm.

So, on that note, just to confirm, clarify, National does continue to support this bill. We look forward to further discussions throughout the House and acknowledge the intent and the spirit in which it’s been brought in the debate so far.

Thank you very much, Madam Speaker. It’s great to be able to stand up and speak upon a bill, and this is a very important bill. So, first of all, Louisa Wall, another fantastic member’s bill that you’ve brought.

When I thought about how to speak on this bill—because, to be honest, I really enjoyed doing this work at select committee; we worked together really well and I felt that it was probably one of the best bills since I’ve become an MP where we’ve seen MPs working collectively across both sides of the House to try and improve the bill, and I think largely because there was no politics involved. Everyone knew that this was a real issue that affected people in their daily lives and genuinely endeavoured to make the best changes possible. So I feel that this has been a really good and positive experience in general, in an area that’s concerning and has got real issues for New Zealanders on an ongoing basis.

I thought the best way of illustrating what we’re talking about here was to read out from a couple of the submissions—and these are the ones that stuck with me. When I thought back today when I sat at my desk, what stuck with me the most about this bill was the women who came and submitted to the Justice Committee about their experiences. So I’m going to just read those out pretty quickly to underline some of the main issues that we’re trying to address through this legislation.

“In September 2019, I pursued a relationship with a man, which ended in October 2019. During this time, we created an intimate visual recording together on one occasion. Without my knowledge or consent, the man subsequently uploaded the intimate visual recording to several international pornographic websites, including Pornhub. I did not find out about the posting of the intimate recordings until August 2020, which was 11 months after, when I was alerted by one of my associates. Altogether, the posts of the intimate visual recordings had gathered over 35,000 views internationally and featured on multiple degrading comments that had been picked up by other users and shared to several third-party amateur porn websites. After 10 months, I am still left navigating the complex justice process on my own. I am entirely competent, capable, and a professional woman with the ability to access resources. Nevertheless, this has and continues to change the trajectory of my life. The impact this has been continues to be multifaceted, and the effects span across multiple domains, including emotional, social, physical, and financial.”

The second one I’d like to read is a lot shorter, and what I would like to demonstrate with this submission is the nebulous and difficult way of taking down harmful content once it has been posted online. The submitter states, “I managed to get everything that I had found taken down. That didn’t stop him from making new accounts to upload again, and at some point to put videos of me into compilations with other videos—that they would be harder to find and at the same point I wasn’t immediately visible in the thumbnails of the video and was hidden. Again, he uploaded them again and again, and they were always the same videos.”

I felt it was important to speak to that because it goes right to the heart of what this bill is trying to identify. As the chair of the committee, I would like to acknowledge all of those who submitted, particularly those women who were brave enough to come to the committee, whether they submitted anonymously or in person, to talk about the stories that they had—talk about the experiences that they had endured, dealing with these sorts of situations, dealing with intimate visual recordings.

I feel incredibly strongly on this issue. I feel that no woman should be made to feel ashamed or afraid at all, and I see that this is a tool that is used to do exactly that. I would like just very quickly to say that Women’s Refuge’s Ang Jury has spoken and linked it quite closely with family harm and with what we see happening in terms of revenge porn as a strategy that is used to degrade and control partners. Women’s Refuge has commented that 40 percent of victims had intimate content shared by an ex-partner either to control them, blackmail them, or punish them for leaving a relationship, and that family violence works across a continuum of any number of different harms and this is just one example of those many ones; so it’s important that we recognise that in this House today in terms of exactly what it is.

To take it further, Netsafe’s chief executive has also made similar comments, and I think it speaks to the heart when you’ve got the head of Women’s Refuge and the head of Netsafe agreeing that this is exactly what the problem is. The chief executive, Martin Cocker, has said that the typical image-based sexual abuse reports from women tend to involve an ex-partner trying to maintain control, blackmail them, or as retaliation for leaving the relationship. And he said that sometimes these cases are part of a wider pattern of family violence.

I know I’ve mentioned Louisa already, but I would just like to say how courageous she is, how relentless she is, and how deeply passionate she is about those issues that affect women, that affect our communities, and I’m really proud to have her as part of the Labour team and work alongside her to continue to make New Zealand a safer place for those people who deserve that representation but sometimes don’t have the voice to do it.

The real nub of the bill, which I’ll get to because I can see the clock’s ticking, is that it does two things, and these two things are really important. So the first thing it does is it creates a new offence. So, under the existing law, it’s an offence of causing harm by posting a digital communication, but you have to prove in the prosecution that there is intent, the mens rea. You have to prove that there is intent to cause harm. And that is what has been incredibly difficult for police or prosecutors to demonstrate—that there was an intent to cause harm—because you can say, “Oh, well, you know, we made it, you know, under consent, and I thought it would have been fine. I just put it up there, you know. I didn’t know.” Proving that intent has been difficult. So what this bill does is it says that intent is implicit in uploading without consent. So if you upload an image knowing that it was not provided with consent, then there is not a requirement in law now to prove that you intended to cause harm; the very action of uploading that image on to a platform demonstrates that harm was intended. So that makes a really significant difference, and, to be quite frank, it makes it a lot easier for the New Zealand Police to prosecute in this space.

The second thing that this bill does, and Louisa’s already mentioned this, is it provides take-down orders. So, from those two submissions that I’ve read from, what was really evident is how prolific and how quickly material can be shared once uploaded. So what the bill does is it provides a new ability for while something’s waiting to go before the court, which can take time—while, you know, cases are being prepared for court—that there can be an interim order to say, “Take this down for now.” and have that ordered to be taken down, and that can make a significant difference in how frequently that’s shared across different platforms. So having that ability to make an interim take-down order means that the court can make an order for material to be taken down from the internet, or that a defendant can cease or refrain from the conduct concerned. That means that the perpetrator can be prevented from doing further harm to their victims during the court process, and I think that’s an incredibly important change to the existing law.

I’ve already spoken a little bit about what the committee has done, but I would just like to give a general acknowledgment to all the members from the Justice Committee, who tackled a really difficult issue. We really looked into all of the aspects of what consent meant, how that would work, and how that played out on a digital platform, and understood how young people are engaging in different ways than I might have when growing up, using the internet, and how that played out in terms of the principles we hold in terms of how we should treat each other—looking at a digital platform and seeing what is fair and what is not. Even having that discussion around consent and when it’s withdrawn and how that plays out is an incredibly important one.

So I’d like to conclude by saying that this is a really important bill in New Zealand’s history because it forges a way of trying to keep our communities as safe as possible while respecting people’s ability to express themselves at the same time. And it strikes that balance of ensuring that particularly those who are vulnerable, particularly women, have that right to be able to stand up and not be ashamed. I commend Louisa Wall for this bill and I commend, in particular, all of those who submitted. This is a good bill and I look forward to it becoming law. Thank you.

I’m pleased to stand in support of Louisa Wall’s bill—and to take off my mask! It is a huge credit to Louisa Wall that she has consistently brought to this House pieces of legislation that are courageous and that she’s consistently been so lucky in having them picked from the members’ ballot.

This bill deals with a really serious issue, and that is of people posting digital communications of intimate visual recordings of another person without their consent. It is the act of weaponising moments of intimacy against another person. The intent of people doing this is so malevolent it actually makes me filled with horror to talk about it: the idea that images or videos that have been shared with someone in the context of an intimate relationship, in a time of trust—that those images or those videos would then be used by a person upon their desire to inflict pain upon someone. To do that without consent is an awful act, a malevolent act, and it is right that, in this bill, we ensure that that is very clearly seen by our law as an offence, because the posting of unauthorised content in this way causes harm, full stop, and those who do it need to know that they can be confronted by the full force of the law.

I want to acknowledge that this bill is able to be advanced because of work that has come before and which National Party leader Judith Collins played an important role in, and that is in the original creation of the Harmful Digital Communications Act, which was groundbreaking at the time and which has been an important step forward, I think, in protecting the rights of people when it comes to harmful digital communication. This bill takes it a step forward, ensuring that the law is up to date with the sorts of things that we have seen happening and that the law can in fact be enforced against those who share intimate images in this way.

So I end this contribution where I began, which is to congratulate Louisa Wall, to also congratulate the select committee, who, I understand, heard some compelling and also very emotional submissions and who have worked to make small amendments that we see at the second reading. This is good lawmaking. I commend it to the House.

E te Māngai, tēnā koe. Kei te mihi atu ki a koe, e te tuahine, e Louisa, mō te kaupapa nei. He kaiurungi o te kaupapa kaha, nē rā? Ka mihi atu rā.

[Madam Speaker, greetings. I offer thanks to you, my sister Louisa, for this work. You have shown strong leadership. Thank you.]

Acknowledgments to our sister Louisa Wall on having this bill pulled, to take forward what is a very important kaupapa to many groups across Aotearoa. But particularly what I’ll speak to this evening is around our rangatahi, our young people. We know that we’ve had exponential growth of our internet since my time as a teenager and decades before that. I referenced very early on in the day today about a platform called Bebo, which was the first of its particular kind. For anyone that sits in their 30s, you’ll remember it fondly. But what that gave us was an opportunity to engage with people outside of our home and outside of our communities, engage with family members, and, at times, people that we may have crushed on. But it meant that we were able to extend very much beyond where we lived and breathed, and that really shifted the culture of how we engaged in our lives and, in this case, engaged online.

So the harmful digital communications amendment bill is a very important one to ensure that we continue to have law that protects the individual, whether that be a young person, whether that be women, whether that be any New Zealander that, in a time of trust, chooses to share content online that others, therefore, can share at different times. It’s heart breaking to see when relationships may go bad that people take it upon themselves to take revenge and to use content in such a negative, hurtful, and harmful way.

The objectives of this bill are, obviously, to amend the Harmful Digital Communications Act 2015 but to introduce a new offence of knowingly posting a digital communication that is an intimate visual recording without the consent of a person who is the subject of that particular recording. It’s also to help protect victims of image-based sexual abuse and enable perpetrators to be held to account. We know that, at times that this has happened, that it is very, very difficult to prosecute someone to the extent that that harm has caused. The problem that we’re trying to address in this is really to ensure that this doesn’t happen, that people don’t have very personal content shared to an audience that they have not given that particular consent to. It’s also to ensure that we protect the mental health and the safety of our young people and that we take action against what, I believe, is gender-based violence.

And can I acknowledge the speech this evening from the chair of our Justice Committee, Ginny Andersen, and also, to my right, the chair of our justice caucus committee, who would have heard the submissions from many, many groups in relation to this particular bill. One that I’ll start off with tonight is one that I researched from the New Zealand Nurses Organisation. Their feedback really comes back to the concern about how normalised some of this behaviour has become. We know that people are sharing particular content, and we know that they are sharing this on in turn, and not in the right way. But, most of all, one of my responsibilities in our caucus is as the chair of our rainbow caucus, which means we get to have a particular lens on how this law particularly impacts our rainbow communities. In this particular submission, it was heard very loudly on the impacts of harmful digital communications on our LGBTQAI community. So we have to take a bit of action.

I also come back to the second submission that I’m going to speak to this evening that came from RespectEd Aotearoa, Madam Speaker—Mr Speaker.

💬 SPEAKER: Yeah, we’re supportive of quick changes here.

Mr Speaker, my you’ve changed. My apologies. But the submission from RespectEd Aotearoa was in regards to non-consensual posting of intimate visual recordings that they believed was a very alarming issue. They quoted the NetSafe survey that was completed in 2017 that revealed 3 percent of the respondents had experienced the non-consensual sharing of intimate recordings. In 2018, this number increased from 3 percent up to 4 percent. For women aged between 18 and 29, the rate is over twice as high, up to 7 percent. That’s significant and impacts on particularly our wāhine. Can I acknowledge our wāhine in the room, but also those that have been negatively affected in this particular circumstance.

What is important is that we continue the work to protect our young people, protect our women, protect our rainbow groups from a culture that is the internet, that we can no longer trust, that we know can be misleading. We know that misinformation is shared and, in this particular instance, we know that content is shared that has not been consensual.

So, finally, I just want to acknowledge once again my colleague, friend, and tuahine Louisa Wall. Kia kaha tonu, e te tuahine. [Stay strong, sister.] I commend this bill to the House.

Thank you, Mr Speaker. It’s a real treat to get to rise and speak in support of Louisa Wall’s bill, the Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill, this evening. I do need to echo the voice of others in this House to congratulate her for her luck but, actually, more importantly, for the quality of the bills that she has been bringing to this House that make a real, substantive difference to the lives of a huge number of people in this country, and it’s a pleasure to be able to speak in support of another one of those bills tonight.

I wasn’t lucky enough, because I wasn’t on the Justice Committee and I’m not our justice spokesperson, so I haven’t got to follow this. So it’s particularly lucky to get to speak on it tonight. It was very interesting in that I think the public support for this bill, as well as it being cross-party, is quite clear in the balance of the submissions, where there were 75 submissions made and only one was in opposition, I understand. I think that demonstrates that this is a bill whose time has come.

What the bill does, which has been outlined by others, is that it amends the Harmful Digital Communications Act of 2015 to make it an offence to post any intimate visual recording of someone else without their consent. “Intimate visual recording” is already defined in the Act as any picture or video of someone’s naked or undergarment-clad genitals, buttocks, or female breasts where that person would normally expect privacy. The current offence in the Act covering this issue requires a number of steps before the offence is made out, which is where we’ve had the real problem. It has been difficult to establish and, therefore, the main bar to prosecution at the moment is that the offender, under the current legislation, has to share the material with proven intent—an incredibly difficult thing to do—and the victim must prove that they have actually experienced harm, which is, again, a very difficult thing to do. An objective standard of proof applies to whether harm was actually experienced by that victim—tricky.

The new offence in this amendment bill would involve a simpler test, where it is established that sharing without consent implicitly recognises an intent to cause harm. That, to me, is just logical, and it is fantastic to see this problem being solved this simply, I think. The select committee has made an exception for scenarios in which posting of an intimate visual recording may be necessary, involving educational, legal, medical, scientific, or law enforcement purposes; so they’ve made sure that removing the intent to cause harm doesn’t result in too broad a reach.

I understand that, as introduced, the bill had a concept of express consent and that this was an area that the committee spent quite a lot of time on, and it’s very obvious to me that the committee was very thoughtful in the consideration of this bill and this was one of those points. My understanding is that they’ve decided to move away from that because the concept of express consent doesn’t exist in our law at the moment. Therefore, we don’t have case law interpreting that, and that could potentially undermine or be in conflict with existing case law relating to consent.

I’m really interested in understanding more about that and the reliance on our current definitions of consent, and I note that in the last term of Parliament, the Parliamentary Under-Secretary initiated a body of work within justice to start reviewing our legal definition of consent because there are serious concerns about the fact that it’s basically impossible to get a conviction of rape or sexual violence in this country if the victim has been drinking. We have a definition of consent that is negative rather than positive, and I’m not saying that having a positive definition is the answer, but it definitely feels as if it is time in this country to be exploring that issue properly so that we can uphold the intent of the legislation in practice.

I also want, too, to point out that the member along the way was raising the fact that she would have liked to have seen ACC provided for where there are convictions but that this isn’t in the schedule for ACC. She said she would point anybody listening who would like to see the expansion of ACC to everybody who’s experienced sexual violence to the Green Party petition that was launched today campaigning for that very thing, because it’s just a reality that there are too many barriers in the way of survivors of sexual violence getting the help that they need, and surely, as a country, we’re at the point where that’s our priority and we don’t need needless, bureaucratic, harmful barriers in the way of doing it.

I also would like to commend the work that the committee did around the age of consent and clarifying that consent cannot be given by somebody under the age of 16, because they are not in a position to be able to understand the implications of that image being shared. I also note that, while that doesn’t apply for 16- and 17-year-olds, actually, as the committee pointed out, the posting of an intimate visual recording of a 16- or a 17- year-old could still be considered objectionable under the Films, Videos, and Publications Classification Act. So there is an interesting kind of graduation in our legislation coming in with this.

Also, from a Green Party perspective, we were pleased to see the reduction in the penalty from three years’ imprisonment to two years’ imprisonment. Part of the work that was also initiated last term was looking at alternative pathways for resolution of sexual violence cases, because our court system is just not working for so many people. We’ve had the discussion tonight about how long cases are taking to get through the courts and the harm that’s happening in the meantime, but it is also just that, quite often, when there’s a history with the person or the person’s family and they’ve been loved or they’ve been part of your extended network, actually going up against them in a court case in a really public way is not how people want to resolve that issue. So that work to create alternative pathways for addressing the harm of sexual violence, I believe, is really, really important to sit alongside our formal justice system.

But the Greens would also like to see our formal justice system being led far more by the values of Te Ao Māori and those approaches to justice as an investment in prevention and rehabilitation across our system. That is work that this Government, I know, is very active and engaged in, and we really look forward, years in the future, to when we look back at this time and think that that was some real progress—our getting to the point where sexual violence wasn’t the feature of our society that it is now, which is an aspiration I hold to very deeply.

Finally, just acknowledging the really important provision of enabling interim court orders to take down the material before a court case decision has been made, because, as we’ve said, these processes are taking far too long and we can’t allow harm to just compound in the meantime. So being able to take those images down is really important.

So congratulations, and it’s fantastic to hear really thoughtful and considered speeches across the House. I love it when we all turn our minds to what’s best for the people in our communities. Kia ora.

Thank you so much, Mr Speaker. I rise to speak towards the Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill.

I am not a member of the Justice Committee, but I am a huge fan of their work, and I just want to commend the chair, Ginny Andersen, who spoke earlier, and the whole of the committee for the incredible work that they do. It would be completely remiss of me not to add my congratulations and gratitude to Louisa Wall, who is bringing this bill to the House. As my Green colleague Jan Logie has just said in detail, and I wholeheartedly agree, we are incredibly fortunate to have had such incredible legislation be brought to the House by Ms Wall, and we are very grateful for it.

Another group of people that I’d like to thank in addition, obviously, to all of the officials and clerks who have worked so hard would be the 74 submitters—22 of whom, I believe, spoke to the bill in person. I just want to say that speaking to a bill of this nature takes an enormous amount of courage, and the issues and situations that they were describing were, I understand, extremely distressing. I know that it would have required a great act of courage for them to do so; so I thank them for doing so in order that we could create better legislation. Because that is really what we are trying to do here. The aim here is to prevent and mitigate the harm caused by image-based sexual abuse. It’s an increasing problem for us here in Aotearoa New Zealand. According to NetSafe, I believe that 5 percent of adults have either been threatened with and/or have had personal intimate sexual content shared without their consent. That’s an extraordinary amount of people.

What we’re aware of with content, once it enters the internet, is that it is completely uncontrollable and spreads like wildfire. And this legislation actually has some points in place that will enable us to actually bring that under control a little bit more swiftly, which I’ll talk to a little bit later. We’re really talking about the situation of revenge porn. Revenge porn can often have, and often does have, the name and contact details of the persons who have had their image used without their consent published. And you can imagine, Mr Speaker, that I’m not overstating it when I say that the effect of that is similar to sexual assault. Five percent of—sorry, I beg your pardon, 51 percent; I can’t read my own notes, 51 percent of those victims had contemplated suicide. The distress that it causes is extraordinary, and the legislation that is currently in place is not providing those protections. When those contact details are published, it enables the victims to be further stalked, bullied, and stigmatised.

Under the current legislation, section 22, there is a requirement, as we’ve heard in detail, for an intent to cause harm to be proven. That’s an incredibly difficult thing to prove. And what you miss in those situations is capturing situations where the person sharing the image is potentially arguing that they’re doing it for their own pleasure or just to show off or for a joke. As if this sort of thing was ever funny. This bill recognises that the non-consensual sharing of intimate images is intrinsically harmful. The harm is implicit. As soon as that upload button is pressed without the consent of the person whose image is being shared, it is given that harm is caused and intended. So that really enables us to move forward with this piece of legislation.

Who does it affect? Well, it basically affects anybody—anybody—who has placed their trust in another person either to take an intimate image of them or who has shared an intimate image that they might have taken of themselves with them. And there’s absolutely nothing wrong in doing that—absolutely nothing wrong at all. The offence is committed and the harm is done when the perpetrator takes that image, takes the trust that’s been placed in them by that sharing of that image or sharing of the video, whatever it is—which is a precious trust, I think—and violates that by sharing it without their consent.

Now, we’ve got a study that basically covers the United Kingdom with the UK Safer Internet Centre and an Australian Office of the eSafety Commissioner, as well as NetSafe New Zealand did a study in 2017. And what they found was that one in five young people has been asked to share nudes, and 24 percent of those are women. It is, unfortunately, a form of gender-based violence, because it does affect women at a much higher rate than men, although I would absolutely accept that it does affect men too.

If we look to the people and the effects that we’re having, a simple Google search—although I would be careful when you put your search terms in—does bring up the story of a Christchurch woman who spent thousands of dollars on a civil court action to get a sex tape removed after it was posted without her permission. She won the civil case. The man admitted publishing the footage; he did it on multiple porn websites. It was almost impossible for her to get those images removed. She had to contact every single website herself and go through their application process to have that content removed. It was live for a year and had about 35,000 views. It caused her to be “devastated”, in her own words.

So we were updated on that particular situation in July, and the offender, or the fellow who admitted doing this, admitted uploading the footage without consent. But he can’t be charged, and that’s the problem that we’re trying to solve here. He can’t be charged, because the police don’t believe that it can be proven that he intended to cause harm. So the victim is angry. And of course she’s angry, as well as devastated and upset, but she’s angry at the legislation that enabled this. She’s angry at those of us in Parliament who have created the legislation that enabled this, and, quite frankly, I don’t really blame her. That’s why we’re here today: we’re trying to actually make it right.

Now, Ginny Andersen spoke of how, if this bill is passed, it’ll make life easier for the police too. I’m really glad about that, because I can’t imagine how frustrating it must be for the good people that I know that work in the police force in Christchurch. I’m aware of the detective inspector—I know him personally—who worked on this case, and I can imagine it would have been profoundly distressing for him to have to not be able to bring charges. So I’m sure it will be a great relief to the police that they will be able to do that.

To give you another example of the sort of thing that we’re looking at, a case reported in Stuff in 2019, and I’m going to read directly here from the article: “ ‘I’m going to make you famous,’ he said. ‘Keep an eye out on the web.’ ” And that’s exactly what he did. Do you know what he did? He took an intimate photo and published it with offensive sexual comments, her son’s business name, her Facebook and Instagram accounts, and even her physical address. She found out about this when she started receiving propositions from complete strangers on Facebook as a result of that man’s actions. So this is a really important piece of legislation and it will help us to protect, largely, women, but men and young people too—a large amount of them—from the harm that’s caused.

One of the things that’s really important, I noted, as a recommendation by the committee, was, as we heard, setting the age of consent at 16. So you can’t ever, ever be considered to have given consent to your images being shared if you are under 16. But I would also say that 16- and 17-year-olds might still find that the visual recording was considered objectionable under the Films, Videos, and Publications Classification Act. There are some other interim orders that enable it to be easier for the court to order to take down or disable material and order that the defendant cease or refrain from the conduct, as well as not encouraging other persons to engage in other communications.

This is a really important piece of legislation. We really need it. I congratulate Louisa Wall in bringing it to the House, and I thoroughly commend it. Thank you.

It’s a pleasure to stand here today, and thank you, Mr Speaker, for giving me the opportunity. I’d like to start off by thanking Louisa Wall. A lot of the reasons why I came to Parliament myself were to make a difference for victims and to make a difference for people who don’t have a voice. Often, this can be quite hard because the conversations are quite awkward, and people don’t like to talk about these kinds of things. Unless we acknowledge there’s a problem, and unless we dig deep and actually have these hard conversations, nothing’s ever going to change, and I really appreciate Louisa Wall bringing such a hard topic to the House.

I’d also like to thank the committee that took this on. Sitting and listening to personal stories like that mustn’t be easy, and I know there are times that, even sitting on a jury, a judge will give you a set amount of time to not come back to a jury because it can be quite harmful even listening to the stories. So I appreciate the time the committee took to hear the concerns. And to the people that made the submissions, your bravery is appreciated. It’ll make a difference to a lot of victims in the future. We got to hear the harm that it causes, the lifetime of inside scars, because not all victims wear their scars on the outside. Scars heal—the scars you see on the outside—but sometimes, on the inside, those scars will never heal, and people can’t see them, so they don’t know they’re there. And often, victims suffer in silence. And so I really appreciate everybody that came forward and told their story.

I stand on behalf of the ACT Party to support this bill, and there’s a few reasons behind it. My focus today, and I will be speaking on behalf of young people, and as a parent—I have four children, and it would be my worst nightmare to have one of my children have an image or a video of them posted online in a vulnerable moment. We parents try to teach our children about safety online, but unfortunately technology has advanced so fast over the years our young people do not understand the consequences of the decisions they make. They don’t think before they do something, and in an emotional moment, sometimes the perpetrator of the harmful digital communication has not thought through the consequences of what might happen.

So some of the work that needs to be done is not just here in Parliament, not just by us here, but by society and by parents, teaching our young people that there are consequences for the behaviour and the way we treat others. Society will never change if there are no consequences for this kind of behaviour, and acknowledging that you cause harm when you do these things. Technology is fantastic when it’s working how we intended, but, unfortunately, these days technology can be used as a weapon. And when it is used as a weapon, this is just unacceptable, and our laws need to keep up to protect people from harm.

This is a good bill. It keeps our children safe. It also, having this conversation, makes people aware that this is actually a problem, because when I first heard about this bill, I thought, “How bad is this problem?” You know, you don’t hear about these things. It sounds terrible, but how often does it actually happen? So I was quite surprised reading through and finding that 288 children and young people, in the three-year period from 2018 to 2020, were proceeded against by the police for a harmful digital communication problem. That shows that this is something that is growing. Hopefully, we have caught it in time before it gets worse.

I listened to some of your talk on what was missed out, and what you may want to add in later on, and I am sure we will look forward to having a discussion on those intentions. Deep fakes, or digitally altered or created images, or synthetic images, or visual recordings are just as harmful. We can take a picture, send a picture, think nothing of it—we’ve given consent at that time, but what we haven’t given consent for is that person using that image or that recording in any other way, and I think sometimes that what we see as consent really needs to be looked at. I understand that you couldn’t change it right now, and that you did have a discussion around consent, but I do feel that this may be an issue we need to look at later on, because if you consent once, is it consent for everything, or do you have to consent each and every time? There could be some confusion on whether the consent was given or not. But I understand we couldn’t go that far.

It is very hard to remove an image from the internet. Even with a take-down notice, even if you get it very quick, somebody’s taken a screenshot, somebody’s shared it, and then it goes on and on and on, and this does not take long. So I appreciate the fact that you no longer have to wait for a court decision before you can start the process of a take-down notice, because the quicker you get this, the better the result might be. There is nothing worse as a victim than thinking that everybody’s looking at you. They may not be, but if you know your image is online, you know people are sharing an image of you, especially an intimate image, your self-esteem and everything about you changes. You can go inside of yourself, depression sets in, social isolation, and the shame, thinking you did something wrong. And what we need to understand is, no matter what kind of victim you are, whether it be physically or whether it be a harmful digital communication, the harm is the same, the hurt is the same. We don’t heal magically. Even if we do get it down in time, there is still the knowledge of the people that have seen an intimate image of you. There’s still the voice in your brain that says, “I wonder if that person walking towards me has seen that image.” It may not be a correct way to think, but when you have become a victim, you don’t think logically; you just think worst-case scenario. And I would hate to think that we end up with a lot of people hurting themselves or harming themselves because we haven’t kept our laws up to date with technology.

So ACT will be supporting this bill, and I would like to congratulate Louisa Wall again for such a good piece of legislation.

Thank you, Mr Speaker. It’s a pleasure to be here back from a long time in Auckland under lockdown.

💬 Hon Member: Welcome back.

Thank you. I just want to acknowledge, for anyone who might be watching from Auckland—to thank them for their hard work. Hopefully, they see now that there is light at the end of the tunnel and their hard work is paying off.

So I rise now to speak on the second reading of the Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill. This is a member’s bill, as we know, in the name of my colleague Louisa Wall. And before I get into the substance of this bill, which it is very heartening to see has universal support around this House, I want to pay tribute to her. Not only is she a former double international in netball and rugby, having won a Rugby World Cup for New Zealand in 1998 and a silver medal in the Netball World Cup; not satisfied with what I can probably be confident in saying are unparalleled achievements in this House, she has again and again and again brought important, considered members’ bills to this House, including, notably, same-sex marriage and also the next bill on the Order Paper, which is the abortion safe zones bill, which I also strongly support, to provide women safe access to the medical procedure of abortion. Ngā mihi nui ki a koe, e te tuahine, mō tō mahi o konei.

[Thank you, my sister, for your work here.]

But, for now, we will not be talking about that next bill; we’ll be focusing on this bill about harmful digital communications. I agree with my colleague from the Green Party, Jan Logie, when she said that it’s a bill whose time has come. I also agree with my colleague on the other side of the House Karen Chhour, when she said this bill is one of the reasons that we came to this place: to make a real difference for New Zealanders, to protect people from harm. I had actually noted that down before she said that, just like I had noted down what Jan Logie had said: that it’s a bill whose time has come. I think it is really amazing to see that shared strength of feeling around this important piece of proposed legislation.

Throughout the last two years, in 2020 and now in 2021, we can all acknowledge that more of our lives are spent online. We have Zooms, we have online school, online shopping, and social media that all play a role in our daily lives. It is therefore so important that abuse, when it happens, if it’s through an online platform, is also considered serious abuse that deserves the careful consideration of this House. In plain English, this is a bill that makes clear that posting an intimate video recording online without consent is sexual abuse or image-based sexual abuse, and it should, in my view, be treated as so. As we’ve heard from other speakers, this type of image-based sexual abuse is unfortunately increasing in New Zealand, and I think another colleague, Sarah Pallett, mentioned that 5 percent of New Zealanders have experienced this image-based sexual abuse. That is a huge number of people, and it is not acceptable from my perspective.

The reason why this is really important is that research has shown that the impact of image-based sexual assault is likely to be similar to the impact of sexual assault that may happen in the real world. This is still assault, it’s still harmful, and it still creates lasting damage on the people it affects. Research has also shown that the victims or survivors of this type of abuse are more often than not likely to be young people, women, or people in our rainbow community. And according to Women’s Refuge, image-based sexual assault is often used as a form of gender-based violence by partners or ex-partners as a form of control used to degrade their partner or former partner. This is why we need to take this type of abuse so seriously.

However, our current law is not fit for purpose in relation to this. Our current law requires intent from the perpetrator of this type of image-based sexual abuse. This bill, brought by Louisa Wall, would get rid of the mens rea, or intention element, of this offence, because it is implicit that, in the sharing of an intimate image without consent, that is an act of abuse. Some may argue that there is some implicit form in the existing offence; however, as those who have practised in criminal law will understand, when you prosecute an offence, you have to prosecute each limb of the offence, and proving the mens rea of an offence is a barrier which prosecutors need to overcome in order to have a successful prosecution of an offence. That is why removing that barrier, when so clearly an offence has been committed, improves the law and also improves access to justice for the victims or survivors of that particular offence. So I think that it is significant and it will improve the law as it stands.

In the past, some may have argued that they posted an image online—an intimate image of someone else without their consent—and they may have used excuses that, quite frankly, I think most people in New Zealand and in this House would find absolutely abhorrent. They may have successfully used an excuse to say that they didn’t post it online to harm the individual; they posted it for their own gratification or as a joke, rather than to cause harm. These are abhorrent defences that could possibly be used in New Zealand, in the law as it currently stands, and this is why it is so important that we change this law to make sure it is fairer and make sure that the perpetrators of these types of offence are more likely to be brought to justice.

I also want to acknowledge another colleague in the House, Nicola Willis, when she characterised these actions as weaponising intimate moments. I agree that, when people do these types of action, they are weaponising intimate moments. And I think the fact that it happens to so many—largely, women but also some men and some other people from other communities, like our rainbow communities in New Zealand—is absolutely terrible, and it is incumbent on this House, on us, to change this law in order to make sure that this doesn’t continue to happen.

Now, I don’t sit on the Justice Committee. I’m not a permanent member of the Justice Committee, although I have recently subbed on to it on a few occasions, but not in relation to this bill. I know that they’re an incredibly hard-working committee, and it was really heartening to hear the chair of that committee, Ginny Andersen, talk about how collegially the Justice Committee worked together on this bill in order to produce the version that we see today for the second reading. So thank you very much to the members of the Justice Committee for their work in this area.

I understand there were a number of submissions, about 70 submissions, and 60 were in favour, also a number of oral submissions—around 22. I just want to take a moment here to commend the people who were brave enough to come forward and give those oral submissions. It’s a really difficult thing to do—most people in New Zealand don’t do it—and especially when it’s on something as personal as this type of legislation, which talks about intimate recordings. To come forward and talk about the damage that that has done to you under the law as it currently stands is an incredibly brave thing to do, and I want to pay tribute to those people. Hearing some of the extracts of those submissions, as read out by my colleague Ginny Andersen, it was actually sickening to think that that type of treatment could go unpunished in this country, or at least would face significant barriers if one was to be prosecuted. And I do understand that currently, when you do try and prosecute these types of offences, it can be a very long process, it can be a process that needs to be initiated by the victim, and it can take many, many years. So I think that the improvements that the select committee has suggested will go a long way to improving that.

I just want to note a couple of those before I run out of time. So one thing that I just wanted to highlight was the use of interim orders, which would allow material to be taken down quicker. Interim orders, or those types of orders that can happen quickly, prior to the conclusion of the substantive matter, are incredibly important in legal cases, and I will commend the committee for suggesting this change to the bill.

Just in conclusion to my comments on the second reading of this member’s bill, of my colleague Louisa Wall, again I would say it is a bill whose time has come. The bill makes clear that posting intimate video recordings without consent is sexual abuse, and there can be serious mental health consequences of the offending in this way. This is why we need to treat this offending in a serious way in this House and why I am honoured to commend this bill to the House.

Thank you, Mr Speaker. It’s an honour for me to stand and take a call on this Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill in its second reading. I haven’t been on the select committee—I’ve recently joined the select committee, but I wasn’t on the select committee to actually debate and work on this bill.

But I do want to acknowledge the member Louisa Wall. Especially for new members of Parliament, if you want an example of how to shepherd a member’s bill through Parliament, there is no better example of that than Louisa Wall. She brings meaningful bills to this House that actually are going to make a positive change in people’s lives. She will engage with every member of the House, doesn’t matter what party they’re in. She will bring experts in and she’ll organise briefings. She’ll bring people in that have been affected directly and are often the driver for her bringing these bills into the House. And she has experienced an enormous amount of success because she takes the time and she is genuine about it, and I want to acknowledge her for the way that she approaches these members’ bills. She has spent a lot of time with me, working with me on previous bills. It doesn’t mean we agree on everything, and we’ve had some direct conversations, but she is very effective because she’s deeply passionate about what she does and she spends the time to make sure that she engages with all of us as members of Parliament to try and get as much support and to allow us to understand what her intent is and what the bill is trying to achieve. So I want to acknowledge and thank her for bringing this bill into the House.

As legislators, she has highlighted an issue that we’re going to have to continue to face and work on, because, although the internet can be an enormous force for good, we can also see that it can be an enormous force for evil as well. Probably just about all of us in this House and our family members have been victims ourselves of poor behaviour—very deep personal attacks, trolling on the internet. I know that, as a father, my daughter, as a 15-year-old having gone through a breakup with her boyfriend at school, was the victim of online trolling and the use of proxies to attack her. I can tell you that it’s the only time as a father that I felt that I couldn’t protect her, and it was hard and it was difficult to try and work through that. You can protect your child from a physical threat. You can protect them against bad decisions. But it’s very, very hard for a parent to protect their children from the types of attacks that they can experience online. I’m an ex-policeman and I’m a member of Parliament—I’m probably in a much stronger position to try and do that—and even I found it hard and difficult to find a solution for that. So we’ve got some big issues to face as legislators.

Camilla Belich, I want to acknowledge you and the comments that you were making around the mens rea. This is really important, because I feel that the minute someone takes an intimate image of someone and puts it on the internet, that’s the mens rea. If they’ve done that without consent, then all of us know, any right-minded person knows, that immediately there’s a risk that you’re going to have a massive negative impact on that person and the person that’s been impacted; to the point where we know—and we see reports and we see articles; often it’s silent, and we don’t see it—people kill themselves. They commit suicide. Because can any of us even try to contemplate or understand the pain and the shame and the embarrassment of having intimate pictures or videos put up on the internet? We have a wider issue to deal with.

I know that in my own electorate it’s something that I talk to my principals about, as unfortunately today it’s very easy, particularly for young people and young men, to have access to pornography online. And what it’s doing is it’s starting to distort and taint how they view healthy physical relationships. And it’s almost becoming normalised in terms of sharing these images and putting these images online. We’re putting a line in the sand and we’re saying here in this Parliament, with this bill that Louisa Wall has brought here, “Actually, it’s not OK.”, and we need to have those conversations. We need to be able to empower the police to take quick action and to send a clear signal that we’re not going to put up with this; we are going to stop it. We have to be brave enough to have the conversations with our young people. And I don’t want to say this is just a male problem—I know that females do it as well—but predominantly it is males; it’s a male issue. So we need to be educating. We need to have strong mentors—male mentors—for our young men as they grow and they’re dealing with and trying to navigate and negotiate their way through a whole lot of issues as well.

But, Louisa Wall, thank you for bringing this bill to the House. It’s a very good bill. I consider it a vanguard, because I think that all of us, as legislators, need to carry on the momentum and keep looking at ways how we make the internet a much safer place and people much safer and protected from this type of behaviour. So thank you.

Kia ora, Mr Speaker. I actually rise with a bit of a heavy heart tonight, as I listen, as I prepare, as I reflect on the challenges that face a 21st century globe. As the previous speaker, Mark Mitchell, who just sat down, said, we’ve got a long way to go. I’ve felt for a long time that the internet is this experiment, that social media is an experiment, that apps and dating apps are experiments that we’ll look back on and actually think, “What the heck were we doing? The damage that it did!” As Mark Mitchell just said, we have a lot of work to do to ensure that our connectivity, that our internet, is a safe place for all people. And so I rise in support, and I want to thank Louisa Wall for bringing this into the ballot, into the House, and, hopefully, passing it into law.

As I’ve listened, I’ve reflected on Sarah Pallett when she said sharing an intimate image isn’t illegal with consenting adults, and we’re not here to talk about that; we’re here to talk about what happens when there isn’t consent. I’m glad to see that in our schools we’re doing a whole lot more work around what consent is, and I know the young men that I work with—it’s been a long, long journey around what consent is, what respect is. If you can’t respect yourself, how can you respect others? It is a long journey, and it is a continuous journey. The challenges we have with dating websites and apps—we need legislation like this to ensure that all people are protected.

Now, for myself, in looking at this, and when I read some notes about it, it talked about, obviously, as others have said, that young adults, women, and the rainbow community are the most affected. Being someone who comes from the rainbow community, it got me thinking. And it got me thinking about normalised behaviour and, growing up, what I thought or what I saw seemed normal but then realised, as I grew, wasn’t normal. I think of the football and the rugby and the cricket and the changing rooms around our nation and the normalised behaviour that used to exist—in some places, it probably still does, but mostly it used to exist—where it was OK to be that staunch bloke, that male that was all bravado and that would have happily shared a photo from their latest—I can’t even think of the right word to say that would be appropriate for this House. But we need to do something. We need to ensure that our young people are safe but also that they are educated.

This piece of legislation seeks to ensure that the police have the ability to prosecute people. Currently, under current law, the offence of causing harm by posting a digital communication requires the intention of causing harm—for that to be proven—but we want to make sure that it’s not just about, “Hey, I’m posting it to skite or to show off. I’m not just posting this image to use to catfish other people.”, but to ensure that it is enshrined in law that, if I do not give consent, that image isn’t able to be shared.

Now, several have spoken this evening around that 5 percent of adults in New Zealand who say that they’ve had personal experiences of image-based sexual abuse online. Now, that number is probably much higher, because there’s shame that comes in this space. There’s embarrassment. There’s fear of what might happen if people know what I have shared, what I’ve done that is wrong, when it never was wrong until it goes into this place where there was no consent. So I say to all those out there who have had experiences: if you need help, please seek help, because it isn’t OK to be treated so disrespectfully. I thank Louisa Wall for bringing this to the House, and I look forward to seeing it passing into law. Kia ora.

Thank you, Mr Speaker. Look, happy to rise and take a call on the Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill. I would like to join with everyone else in the House in congratulating Louisa; she always brings thoughtful bills, well-considered and well-meaning and that also change lots of people’s lives for the better, so congratulations.

I’m only going to take a short call. I wasn’t on the select committee for this bill, but I did take a look through some of submitters and noted that a partner at Stace Hammond, and good friend of mine, Arran Hunt, submitted on the bill and made some very thoughtful comments. I actually gave him a call tonight and ran him through it. Now, Arran is probably one of the country’s leading legal minds in this area of law—in fact, he took the very first civil case under the original legislation. When I talked to him about the bill and his submission, this evening, he said it has been very difficult for the police, when they’re looking at whether or not they can prosecute, to figure out whether or not there was that intent to cause harm. He said, when it gets kicked to a civil proceeding, it can take years and hundreds of thousands of dollars to prosecute. He knows that very well because he took that first case and it took three years and hundreds of thousands of dollars, although I expect—I believe, actually—that he did a lot of the work pro bono, because that’s the kind of good guy that he is.

So this bill, by default, when taking away that burden of the police having to prove that there was intent to cause harm, keeps it, by default, with the police rather than in the civil courts, which is a good thing. It was interesting to note in his submission—and I was going to make a comment on this about the deep fakes, but Louisa has already mentioned that today, that she’s going to be bringing a Supplementary Order Paper. I thought that might be the case when I read this and saw that it wasn’t included in the bill. Of course, as my learned colleague Chris Penk alluded to earlier, we can’t at this stage give any of our assurances that we will be supporting that, because it’s a conversation that we need to have—and, indeed, we will have—but, clearly, there are some issues there that need to be sorted out and potentially should have been looked at by the select committee, but I understand why they weren’t.

So, with that, I’d just like to again congratulate Louisa Wall on a good bill that we’re very happy to support that builds on the good work of the National Party in the past, but as all legislation—especially in this area of law—needs to be updated, this is a very good bill. So I commend the bill to the House.

Kia ora e te Māngai o te Whare. I intend to do a couple of things tonight as I rise to take the final call on this bill, the Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill. I do want to answer, as a member of the Justice Committee, some of the questions that have been raised about particular decisions we took. I want to honour the contribution of the wahine toa Louisa Wall, appropriately to my left, who has not been “lucky”—because you don’t get luck like this unless you are working so consistently and so hard and for the right causes. Your luck is the result of extraordinary energy and determination, and we all here tonight honour you for what you have done for our vulnerable people over the years.

I want to start by saying that I’ve been really very, very struck by some of the things that have been said tonight, and it seems to me that this bill is more than just a good piece of legislation; this bill is a really interesting moment in our collective conscientiousness in this House—because my colleague Karen Chhour had it right: it’s about shame and what shame does to victims. There’s an old saying—and I am the product of a 1970s second-wave feminist mum and dad—that rape is a tool to control all women, because it is the constant fear that we carry around, and I know also our rainbow community carry around on their shoulders all the time. When I walk home tonight, at the fine old age of 49, I will be watching doorways and under trees, because rape is a fear that all women carry all the time.

This bill is about shame. Rape and the fear of rape is not just the violation itself; it is the fact that sexual degradation is what rape is about. Sexual shaming is what this bill is about. It is about the fact that, for long, longstanding reasons, sex is something done to women that is degrading in a way it is not to cis men. And I say that with no disrespect to my male cis colleagues in the House. I have heard you tonight, I know you are with us, but this is the background to this bill. Mr Mitchell, I’m so honoured that you brought your experience as a father to us tonight, because I suspect that, for many men, that is truly the only time many cis men—that may be the only time you actually feel that burden of shame and helplessness that so many women and rainbow people carry every day. And it is used to keep us under control. It is used to keep us fearful. Well, no more.

Under the previous regime that Louisa Wall’s bill is designed to address, it is that sense of sex as degradation to women that is present in the legislation. So, if you look, the ways in which this sort of act of digital communication, sexual acts—if you look at how it is characterised—you have the Crimes Act section 216G; that’s about up-skirting, effectively. It is the crime where someone has non-consensually taken intimate video recordings of someone. And that’s fine; it’s a good law, but what I’m saying is it buys into that thing: sex is shaming, but if you didn’t consent to it, then you deserve some protection. There is no requirement of harm in section 216G of the Crimes Act.

If you then look at the other major candidate, it’s the Harmful Digital Communications Act 2015. And I do take the point that this was a good attempt, but it was a good first attempt, because what it did was take the case of the woman or the queer person who dares to consent to a sexual image being taken of themselves. In that case, if you want protection from the law, you have to prove serious harm has been done to you, that the intent was to harm you, that harm would have occurred to a reasonable person in your shoes, and that it did actually occur. And what we have watched time and time again is the courts in this country fail to recognise the effect on, largely, women who came before them seeking help, under this section, as harm—“You weren’t damaged enough.” And I cannot help thinking that the idea that the woman had consented to that initial image has something to do with it. If you want coverage under that old toxic masculinity we’ve been carrying around so long, you’d better be really beaten and bloodied if you want protection.

That is why I so honour this bill and I so honour the people in this room tonight who have stood together to say, “No more.” Because the crucial point about this bill is it defines the act from the perspective of the victim. You do not any longer have to show your scars or your bruises or the tears in your genitals, because it is recognised that the harm is implicit. And that is a massive step forward for the vulnerable people in our community, for your daughter, for my queer son and my daughter, for my women friends, for their daughters and their sons. This is a massive step forward to the rejection of shame, and the right standing and the equality of all of us in this country.

That is why, when we looked at this bill, we decided that we would try to create a discreet offence in new section 22A. I take my friend and colleague’s point that some aspects are not in this bill—deep fakes, for example—but that is because what we were concentrating on here is the breach of trust in interpersonal violence and in interpersonal relationship. I look forward to your Supplementary Order Paper and the debate that will follow.

We also refused to accept the idea of express consent. And this was again, to answer Jan Logie’s comment, because we refused to allow the possibility that it could in fact be weaponised against the victims again. Consent, express consent—the idea was to talk about how children or young people might want to convey their consent, so that the perpetrator would have to think through the process and whether they actually had consent. The problem is, as we heard from our submitters, that consent can be weaponised, because consent can be coerced; it can be persuaded. We are talking about children, at times, who are too immature to make that decision. We rejected the idea of express consent. We went for consent simplicita. We also decided to take away the concept of consent for children, and I’m pleased that we did that, because, going back to that same situation, there is such pressure on our young people. It is unnecessary to have to interrogate that point.

Finally, we made the response to the situation easy. We made it possible to get interim orders up fast rather than having to wait, because porn and revenge porn run around the world 15 times before a court has even got its robes on.

So I want to finish by saying to the people who submitted to us: you do not need to be shamed. You took back your power, and right here, in this House, right now, we’re holding on to that space for you. Don’t be shamed any more. Thank you. I commend this bill to the House.

The question is that the motion be agreed to.

Motion agreed to.

Bill read a second time.