Wall Louisa; Dean JacquiHARMFUL DIGITAL COMMUNICATIONS (UNAUTHORISED POSTING OF INTIMATE VISUAL RECORDING) AMENDMENT BILLSecond ReadingLOUISA WALL (Labour): 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.ASSISTANT SPEAKER (Hon Jacqui Dean): 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."