Objectionable Publications and Indecency Legislation Bill — In CommitteeText is incorporated into the Bound VolumeObjectionable Publications and Indecency Legislation Bill — In Committee[Sitting date: 31 March 2015. Volume:704;Page:2757. Text is incorporated into the Bound Volume.]Objectionable Publications and Indecency Legislation BillIn CommitteePart 1 Amendments related to objectionable publicationsJACINDA ARDERN (Labour): It is my pleasure to take a call on the Objectionable Publications and Indecency Legislation Bill. I am glad that the Minister of Justice will be in the chair for the debate around Part 1 and also around Supplementary Order Paper 67 one of the recent Supplementary Order Papers that has been tabled in her name. I want to focus firstly on the substantive clauses within Part 1 which make the most significant changes to this bill. Before I do though I want to make the general comment that these are amendments to a piece of legislation that has a broader scope than simply objectionable material as it relates to children. I think that there has been some discussion perhaps even within the Justice and Electoral Committee but certainly within our party over the need for an overall strategy when dealing with objectionable material child exploitation and so on as it relates to children. It feels like this is a piecemeal approach to what is a much wider and very substantive issue but that is just a contextual point that I wanted to make before getting into some of the details of this bill.I will start by looking at clause 4 of the bill which amends section 124 and relates to offences involving knowledge in relation to objectionable material. This is the first clause that alters the penalty regime for essentially the supply distribution or the making of objectionable material by way of exportation from New Zealand. I think the point that it is important to make here isthat as I said in my introductory comments because this legislation is an amendment to the Films Videos and Publications Classification Act there is a fairly wide interpretation around the term “objectionable”. The reason that that is important is that to most people’s minds and certainly when the select committee was considering this the effect on children is the primary consideration. So when the committee decided that it was right that a maximum term of imprisonment for an offence involving the supply and creation of objectionable material involving children would move to 14 years that is whom they had in their minds at that time. But as the select committee I think rightly pointed out—because we do not have specific child exploitation offences the term “objectionable” is still relatively open and up to the discretion of the Film and Literature Classification office. There was a bit of a debate at the select committee level as to whether or not actually we should be dealing with a separate piece of legislation or whether leaving that discretion around “objectionable” was the right way to go.I think that probably the point that the select committee made that is of the most relevance is that it becomes very difficult then if you are creating separate legislation that applies just to children to determine where you draw that line. For instance would you say that “objectionable” would mean anything that was exploitative as it related to a young person which means that you would probably go from 14 to 17 years or would you say simply a child which therefore under existing definitions would take you only to the age of 14? You start then having to get into some of those arbitrary lines. I think the example that was raised by the select committee was that for example it could be argued that material depicting sexual violence against women also warrants higher penalties. So I certainly understand the justification of the select committee for leaving it somewhat open-ended in terms of determining what is objectionable and just allowing penalties to be as consistent as they can be. I think it is slightly disappointing though that we do not for instance have a body like a Sentencing Council that would be able to ensure that we have consistency in the application or the determination of what that definition of what objectionable is and whether or not those maximum penalties are being used appropriately or as Parliament intended. We come time and time again in the House to examples where I think a Sentencing Council would really prove its worth and I think this is another example. Given that we are allowing that discretion it would have been useful.I also would like to ask the Minister in the chair—if we are not going to be as definitive as to point out “child” within the definition of objectionable—whether or not it was considered that embedding that as an aggravating factor at the point of sentencing was another way that perhaps you could create that point of difference in the legislation. I would be interested to know whether that was ever considered because that might have been an elegant way to deal with some of those definition issues. I am also interested in how many cases we know have fallen into the category of perhaps being objectionable but not relating to children—how broadly is that definition applied for this penalty regime? I think that might have been information provided at the select committee which would be useful.The other issue that the select committee raised was whether in raising the penalty regime from 10 to 14 years we then get into a situation where the supply or creation of material actually becomes a higher penalty regime than for instance physical assault against a child—making sure we have that consistency in the legislation. It is a very important point to make. If you take a quick example from the Crimes Act sexual conduct with a child under 12 has a term not exceeding 14 years. Again I think it is important to make sure that we have rules that are consistent. Again I think the likes of a Sentencing Council would have been in the position to take a broader view as to whether or not we have got a proportionate response in every element of the law as it relates to the abuse and exploitation of children. In and of its own right of course anyone looking at this law would say “Yes it is right to have those maximum penalties lifted” and we would agree with that but I think it is important that we make sure that the other offences that relate to harm to children keep pace with the expectations of Parliament as well. And again it is hard to do that from within Parliament and so a Sentencing Council would have proved its worth there.Clause 5—these are the new subsections that talk about possession of an electronic publication. A really important point here is that obviously the drafting has very particularly made sure that you do not have to have material literally saved on to your device in order for it to be considered possession. I think that it is incredibly important that we make sure that we are really clear on what possession is considered to be. I understand that there was a case which I think was the rationale for making sure that this was stepped out very clearly—Meyrick v Police. I believe that was a case that actually involved an ex - police officer if I am correct in possession of objectionable material. I found it hard finding some substance around that case. If the Minister was willing to speak to how the bill is now in alignment with the outcome of that case I would be very interested because I found it hard to find details online.Clause 6 though—I wanted to come to that because that relates to offences of possession. So it is not just the supply penalty regime that we are increasing but also possession and it makes sense that if you are lifting one you would consider lifting the other. We are looking at amendments now that will increase the maximum available term from 5 years’ imprisonment to 10 years. Again keeping alignment with other regimes I think is incredibly important but from the select committee report it does not seem to be the main concern out of all things that the select committee has raised.Some concern however was raised on new section 132B to be inserted in the Films Videos and Publications Classification Act by clause 7. This section sets out a specific expectation that if there is a repeat offence the presumption from the court will be to hand down a jail-based sentence. You can absolutely understand why there would be the view that we would need to send a strong signal. We are talking about a very specific classification of offending. There are some principles that apply to this type of offending that are specific to child exploitation and the circulation of objectionable material.CLARE CURRAN (Labour—Dunedin South): Thank you for the chance to have a call in the Committee stage of the Objectionable Publications and Indecency Legislation Bill. I did not sit on the Justice and Electoral Committee which heard the submissions on this bill but I have spoken in all stages of the debate so far. Labour is supporting this bill but there are some particular issues of concern that I will speak to and I will echo some of the comments made by my colleague Jacinda Ardern who spoke before me around three particular issues. One is around the lack of an overarching strategy within which this bill fits—an overarching strategy on a number of levels actually because it is a strategy that deals with children and the abuse of children and the way that the abuse of children is perpetuated online as well as in the physical environment. Unfortunately we have another bill before the House at the moment the Harmful Digital Communications Bill which was to all intents and purposes developed in isolation or in a separate way and there are questions around how these bills mesh and how the issues that they raise align. That is one of the issues—around the lack of an overarching strategy.The other one is particularly around how laws that are created that have an impact on the online environment actually align with laws in the physical environment. This is a particular concern of mine. You would have heard me speak about this on a number of occasions around the precedents that are being established without what I consider to be a really thoughtful process that has actually allowed the real consideration of some of the impacts. Although I applaud the Minister’s intent around addressing these issues I seek—and I guess plead—for the Government to actually take a little bit more care when putting pieces of legislation in front of us that actually create offences in an online environment that do not necessarily mirror or are not proportional to the actual physical enactment of the abuse. There is a difference but there is also an alignment. I suspect that what we are going to see—and we are already hearing this—is concern from the judiciary and concern from the legal community particularly around some of the lack of thought that has gone into these things.I also want to talk to clauses 4 and 5 around increased penalties and also around the possession of electronic publications. The specific issue that I want to focus on is the increasing of penalties and the question that was raised by a number of submitters around whether or not this would act as a deterrent. The increase in penalties that this bill enacts includes an increase in the maximum penalty for the possession importing and exporting of an objectionable publication from 5 years’ imprisonment to 10 years’ imprisonment. So that is a doubling of the penalty. The maximum penalty for the supply distribution or making of an objectionable publication is increased from 10 years’ imprisonment to 14 years’ imprisonment.There were concerns raised at the select committee by the Dunedin Community Law Centre—the good old Dunedin Community Law Centre which submits on many pieces of legislation—and the Salvation Army. Both pointed out that increasing the penalties for objectionable publications offences could distort relativity with other offences by treating some physical offending as being less serious than the depiction of that same offending. I know that my colleague Jacinda Ardern touched on this as well. The Salvation Army submitted that this created an anomaly as physical crimes should be punished more severely than objectionable publications offences and the Dunedin Community Law Centre suggested that this may send the wrong message to those who are physically abusing children.I want to be quite clear here that in principle I do not have an objection to the increasing of penalties for the abuse of children in any environment whether it be online or physical as long as there is due care taken to ensure that the relativities in terms of the kind of abuse are maintained and that there is not the suggestion that one form of abuse—a physical form of abuse—is somehow being diminished in the process. I think that was the point that was being made by those two submitters. In fact the regulatory impact statement itself raised this issue and said that “it is difficult to predict the effect of an increase in the maximum penalty for an offence.” and it gave a range of reasons for that and gave some evidence around the number of people who had been convicted: “In the 8 year period between 2004 and 2011 393 people were convicted of an objectionable publication offence.” Of them 33 percent were sentenced to a term of imprisonment. Of that 33 percent 40 percent of fewer than I think 14 cases actually received a term of imprisonment that was less than 40 percent of the maximum available sentence. The regulatory impact statement pointed out that “There are also low rates of recidivism. During the 10 year period … only 8 people were convicted of a repeat objectionable publication offence.”I guess that my question is—and I refer back to the Salvation Army’s submission on this bill: it questioned whether the increased sentences will actually work as a deterrent and it submitted that this should be closely monitored. So I have a question for the Minister of Justice and I hope that she does take a call. The question is: what is the process for that monitoring to take place? Is it included in the strategy around this legislation and will we be seeing close monitoring of that? We are not opposing this measure but we are asking for some further clarification around it.Turning quickly to the offence of possessing an electronic publication as my colleague Jacinda Ardern said the Films Videos and Publications Classification Act is amended to provide that possession includes intentionally viewing without knowingly downloading or saving. This is a very new provision. So you can receive it and if you are looking at it—you do not have to download it and you do not have to save it—by the mere act of seeing it intentionally you are committing a crime. I think this is an interesting part of the bill. I raise that because this is the part of bill that is about updating for modern technology where we really are looking at the way people are using technology and what that is doing to impact on the legislation that is coming before us. Again the submissions before the select committee covered this part of the bill quite considerably and really did have good look at it. I think that there was a considerable amount of discussion within the select committee and also by the officials which gave it quite a lot of attention to ensure that it aligns with common law under which possession of objectionable material includes intentionally viewing.DAVID CLENDON (Green): It is good to see this bill back before the House. The Justice and Electoral Committee from my recall was hearing submissions on this bill about a year ago. There was a sense of urgency about it because it was seen that there was a gap in the legislation and that we needed to remedy that. So as I say it is good to have the bill back in the House.It is interesting that in the last few weeks I believe—possibly more than a few weeks—there has been a programme on Prime Television looking at the history of censorship in New Zealand. I think it is called The Naughty Bits. I have caught only a little bit of a few episodes but it has been a really good reminder that when we are dealing with words like “objectionable” and “indecent” and “indecency” in this instance we have to tread very carefully. These are incredibly subjective terms. One of the parts of the programme I did see that gave me some amusement was from back in the early 1970s when the film Ulysses came to New Zealand. It was deemed to be of such an extraordinary nature that you could not possibly have men and women sitting together in an audience. So it was allowed for public showing to people over the age of 18 but men and women had to be segregated which is extraordinary. I suspect that today it could go on air with perhaps a PG rating or some such. The point is that our perceptions our understandings our social mores in terms of what constitutes objectionable or indecent change dramatically over time. We have seen remarkable shifts even in the last 30 or so years in New Zealand.Having said all that I will say that the Greens are supporting this bill primarily because—and this has been touched on already—it is seen that the legislation essentially has not caught up or kept up with available technologies. With the internet and the availability of pornography particularly of child pornography part of the problem is that it is now possible to observe such things which inevitably involve abuse and harm to children without actually committing the offence of possession. Obviously to look at something online is not to possess it and this bill overcomes that gap in the legislation. I guess that at some point we have all fallen into the trap where you click on something that appears innocuous and suddenly you are looking at something you would rather not particularly if you are using a parliamentary computer—so one quickly moves away from that site. Clearly it is not the intention to catch people out but where people are using that sort of material it needs to be controlled and it needs to be managed. They need to be taken to task.The part of this bill that caused us difficulty and continues to is the increase in the penalties. The evidence I would argue is overwhelming that increased penalties on their own are not actually an effective deterrent. We had not a lot of submissions actually on this bill—fewer than a dozen I think—and only a handful of people submitted orally but they tended to be well-informed submissions and that came through in a number of them. They said that simply increasing the penalty for a particular offence can in no way give us any expectation of reducing offending rates. Where the investment needs to go is into treating people particularly people who use child pornography. There is something wrong with those folk. They need attending to and we need to understand what the motives are for that behaviour. Those are the issues we need to address. I have argued before that we need specialist courts in the same way that we have the drug and alcohol courts to deal with these cases. We need to endeavour to actually heal them to remove the temptation or in some cases the need these people seem to have to utilise this form of very objectionable and damaging material. So the Greens continue to have serious concerns about the additional penalties.I guess we are still able to support the bill with the expectation that the judiciary will apply judgment and common sense. They understand the social context. They understand the limited value of simply putting somebody in jail for longer periods of time. So it is to be hoped that we will get some positive outcomes around that and that the penalties will actually involve treatment and dealing with the cause of the offending as well as the offending itself.I have touched already on the issue of the definition of “possession”. In the select committee’s report back to the House the point is made in respect of the whole notion of sexual grooming offences that in many instances it is much easier to commit those sorts of offences to present to a naive young person as a peer as somebody you are not in order to affect their behaviours and ultimately to even bring them into a position where abuse can occur. So we think it is a very positive step that there is recognition of just plugging the possibility or minimising the possibility or the opportunity for that sort of offending to occur online in particular.Part of the report does engage with these notions of indecency particularly. The point is made that there is actually not a definition of “indecent” in the Crimes Act and in other parts of the law where we deal with issues around what is objectionable what is indecent and what is outside of what is acceptable to the so-called responsible normal person. Where we have some comfort is that there is quite a well-established set of case law and I think that that is the place to leave it—with the courts. The courts should make those determinations because I fear that if we endeavour to make a hard and fast definition in this place of what constitutes “indecent” it is almost certain to fail and probably fail in a relatively short period of time. Certainly within 5 or 10 years we will be back here trying to unpick it. Although it might initially look attractive to provide clear definitions—and often good law does that so there are fewer grey areas if you like and there is less room for subjectivity in terms of interpretation—I think that these sorts of moral judgments which these matters essentially are are best left to the judiciary where the intention of Parliament is made very clear.We want and need to protect people young people in particular in this instance. We want to remove the offences around child pornography and the like and we want to deal with people who feel the need to indulge in that sort of behaviour and deal with them humanely but forcefully at the same time. So I do think we had better not endeavour to lock definitions into legislation in these instances. We will have a bit more to say later but for the moment I just reiterate our support for this bill. Thank you.TRACEY MARTIN (Deputy Leader—NZ First): I rise on behalf of New Zealand First to take a call on the Objectionable Publications and Indecency Legislation Bill. I note that in her second reading speech the Minister who is currently in the chair Amy Adams said: “A 2009 study estimated that internationally 200 new images depicting sexual abuse of children were put into circulation every day. There is also evidence that the content of the publications is getting worse and the children are getting younger. Law enforcement agencies have indicated that those who reoffend in this area tend to do so with a high level of premeditation and go to great lengths to avoid detection.”New Zealand First will be supporting this bill. New Zealand First will be supporting this bill because something needs to be done. My colleague Denis O’Rourke has previously spoken on this bill and has articulated his concerns that the bill does not go far enough. I repeat those concerns here today; however we feel that at least it goes somewhere. We agree that there is a very strong need for a deterrent to those who exploit our children in this way.We would like to pick up on David Clendon’s contribution and one particular point he made in it that was around the length of incarceration and whether that is a deterrent in its own right. We would agree with him that it is not a deterrent in its own right. However I note that my colleague in his contribution to the second reading said that what we know for sure is that a shorter incarceration is definitely not a deterrent. Nothing about this should be about imprisonment in its own right. Nothing about locking a person up just like that fixes anything. So we would agree with the Green Party member’s contribution that there needs to be care counselling and services provided for those who are imprisoned but we do welcome the provision that increases the incarceration ability for these offences.We are disappointed however that although clause 4 for example increases the penalty for supply and distribution of objectionable material from 10 years to 14 years it does not go as far as we would like. It is about the distribution—those who provide the service I suppose if we want to talk about a supply and demand situation. If nobody is supplying it then demand has got to drop off. So we would like to see those who are supplying it be punished at higher levels than are currently inside this bill. However as I have said we will support this bill because at least it goes some way toward making these amends.I believe that my colleague Denis O’Rourke in his contribution at the second reading also argued that there needs to be or should have been a special provision when the offence was against children under the age of 16. He was not convinced by the officials’ arguments that this should not be included. We continue to suggest that if the offence is committed against children under the age of 16 this should be an aggravating factor when it comes to sentencing.Also inside this bill we looked at clause 13. The bill creates a new Crimes Act offence of indecent communications with a young person and that means anyone under the age of 16. The new offence applies where persons charged communicate indecently with a—The CHAIRPERSON (Hon Chester Borrows): Order! The member seems to be straying into a part that is not currently under debate. Can we go back to Part 1 please?TRACEY MARTIN: I beg your pardon. I will address that later on. At this time then with regard to the contributions there we talk about—I believe clause 4 is appropriately in Part 1 which is helpful for me. So if we actually talk about clause 4 again we have concerns around this clause and would have liked to see that time increased but at this stage we accept that those penalties are what they are.So taking aboard all those and obviously I am going to make a contribution later on in the piece I reiterate that New Zealand First will support this bill because it does something but we would have liked to see it do more. Kia ora.ALFRED NGARO (National): It is an honour to take a call this evening on the Objectionable Publications and Indecency Legislation Bill in its Committee stage. I acknowledge the contribution by Tracey Martin because we did have some robust conversations and debates when the member Denis O’Rourke spoke. National members were surprised because we were part of that committee and there were no objections at that point in time with the advisers nor were any concerns raised—concerns you have just shared Ms Martin—with regard to what Mr O’Rourke discussed when he last spoke. It is heartening to hear that he has also come to the view that this bill is much needed and that it does provide provision even though it may not be to the extent that he or New Zealand First considers necessary. It is heartening to see that New Zealand First is now along with all the other parties supporting this bill.The bill is important because its purpose is to increase penalties. But the bill is not just about being punitive. It is about sending a message not only to ensure that it protects the rights of children but also with regard to a concern that has been raised. I want to just highlight this concern. It relates to Part 1 of the bill which is around protecting children from these objectionable materials.The New Zealand Herald this morning talked about online risks and the stress that that causes for parents. In fact The Parenting Place research done with Colmar Brunton showed that 72 percent of parents are concerned. So the issues that are related to this bill are of concern to wider parts of our community and we believe that what we are doing with this bill is ensuring that the penalties do relate to that which is important especially when we are talking about the different types of publications. The article also talked about the internet and the fact that technology has gone ahead of the legislation. So this bill will meet those concerns. It also talks about balancing those concerns. So although we talk about whether the role of the legislation is to ensure that we increase a punitive approach it also talks about the roles and responsibilities of parents in this case. So we think the article is showing that the bill is relevant to the concerns raised by our wider community as well.I will just touch on some of the key provisions again especially those in Part 1. The maximum penalty for possession and for the importing and exporting of objectionable material has been increased from 5 years to 10 years. We think this is in line with the advice given. We know there were eight submissions in all—three oral submissions. There were not a lot but what they did state was the importance of being able to send a very clear message. We believe that that is what bill is doing. It is increasing the maximum penalty for supplying and distributing—and I know that Ms Martin talked about this—from 10 years to 14 years. Again that is in line with the advice from the ministry and in line again with the submissions about the fact that increasing that level of imprisonment is sending a very clear message.The bill creates an assumption of imprisonment for repeat offenders and any forms of recidivism. Again we think we need to send a clear message because of the concern about recidivism. But at the same time we also agree that there need to be forms of rehabilitation. So along with the Greens and New Zealand First we think it is important that there is rehabilitation with support surrounding it because we want to reduce recidivism. We want to ensure that people can get on with their lives and most important we want to protect those who are most vulnerable in our communities.The other thing that we are doing in this Part 1 is making it clear in the Films Videos and Publications Classifications Act that the possession of objectionable material includes intentionally viewing. We know that there were some concerns and they were shared by Mr Clendon in regard to the unintentional consequences of people clicking with their mouse into a site. We believe that the tools that have been used to regulate this will ensure that those unintended consequences will not be punished. But we will be able to pick up on those whose choice not to download material is a way of putting themselves outside any provision of this bill. So we believe that we have got a good balance there.Section 3 of the Films Videos and Publications Classifications Act states that a publication is objectionable “if it describes depicts expresses or otherwise deals with matters such as sex horror crime cruelty or violence in such a manner that the availability of the publication is likely to be injurious to the public good.” We know that these things are important and we define them inside this definition and that is important because these are the publications that are of great concern to many in our communities. We know that today’s offenders can access material through technology in ways and speeds that were never imagined when the Act was enforced. We are making it clear that possession includes intentionally viewing. The amendment ensures offenders with particular technical expertise do not escape liability.The CHAIRPERSON (Hon Chester Borrows): I call Poto Williams.POTO WILLIAMS (Labour—Christchurch East): Thank you Mr Chairman.Hon Ruth Dyson: Good choice.POTO WILLIAMS: Yes I agree—it is a good choice. Thank you for the opportunity to take a short call. I hope I can make a valuable contribution in the Committee stage of this particular bill.As many of you know I am very concerned about ensuring that we do what we can as is our responsibility to ensure the protection of our children. I believe that this legislation makes a serious attempt to deal with the issue of objectionable material and publications.I do have a couple of opening comments I want to make particularly with regard to this legislation perhaps making the best of what it can. But in terms of good legislation and good laws to protect children we could possibly have taken a much broader approach and looked more fully at lots of different aspects around issues of child protection rather than making fixes to legislation as they come along.With specific reference to clause 4 in Part 1 with your indulgence I did look up some references to the term “objectionable”. I think that is obviously key to this piece of legislation. What is “objectionable”? I had a look at a previous Act the Films Videos and Publications Classification Act 1993 and if you would just bear with me it says: “a publication is objectionable if it describes depicts expresses or otherwise deals with matters such as sex horror crime cruelty or violence in such a manner that the availability of the publication is likely to be injurious to the public good.”Included in that definition of course is the issue of violence. Many of you will know that you just have to switch on your televisions download a movie and actually just have a look through some Facebook feeds sometimes to realise that what may have been objectionable at the time we started defining that in terms of publications certainly is in a different space today. We are exposed to things that we would not want our children exposed to things that were not even thought of as being accessible in the days when we were defining “objectionable” particularly in that Act that I referred to from 1993. We were not even considering the availability of that material in everyday use on every device that we have in every situation of our lives.So just in terms of clause 4 the knowledge relating to objectionable material and the offence and in terms of the increase to the penalties the maximum term is moving to 14 years for the actual manufacture or the provision of that material. I know that this was brought up by other speakers in other submissions on the topic but it does seem that the actual manufacture of these publications the presentation of these publications is penalised at a term that is actually out of step with the penalty for the abuse that occurs in the manufacturing of these publications. I for one would like to encourage the Minister to perhaps make reference to that and perhaps answer why that is and whether there are going to be steps to actually align that more consistently.I also want to refer to an issue that was brought up in terms of what happens around the ability to rehabilitate people who have been charged with these offences and that the length of term potentially does not guarantee that they will actually be able to access the type of rehabilitation services that they need.JACINDA ARDERN (Labour): I did have a couple more comments I wanted to make on Part 1 so I will make a quick call on those. Before I sat down I started to talk a little bit about clause 7 of the bill. This was the clause that makes very specific reference to repeat offences having the presumption of a term of imprisonment attached to them. The reason I wanted to speak to this is because there was some discussion obviously at the Justice and Electoral Committee over the increasing use of giving much more prescriptive guidance to the judiciary around expectations of sentencing and whether or not this was considered a good or bad thing. The general view seems to be that actually leaving sentencing to the discretion of the judiciary should be our presumption as legislators.However I do think that there is room for a category of offences where we know there is a particular pattern of behaviour where there is a bit more understanding of the psychology of this kind of offending and I think that for anything related to child sex offences there is some specific knowledge base behind that type of offending. Certainly that feeds through into at least the treatment plans that seem to sit within our corrections system around the idea that there are certain patterns of behaviour that are perhaps more predictable than other forms of offending. I would be very interested and if I am wrong happy to be corrected by the Minister of Justice on that but that is generally the sense I have got since holding various portfolios in this area. So there seems to be a comfort at least with saying: “Well if you see a pattern of behaviour where you have repeat convictions we do think that therefore it requires an escalation.”—that escalation being a presumption that there would be a particular sentence applied to that individual.The way it is set out in the legislation is to state under new section 132B inserted by clause 7 that it applies “only to an offender who (a) has been convicted of and is to be sentenced in respect of a specified publications offence committed after the commencement of this section … and (b) before the conviction for the repeat offence was entered had been convicted of 1 or more specified publications offences committed before or after that commencement.” The issue that I wanted to raise though is whether or not there was any discussion given to whether or not a repeat offence could instead have actually been an aggravating factor at sentencing rather than having that presumption around imprisonment be so expressly stated in the legislation. That probably would have given a greater amount of discretion to the judiciary to make a decision as to whether or not in their minds it was appropriate that a term of imprisonment be used for that second offence. I do not know whether or not that was something discussed or considered by the select committee. Obviously the Sentencing Act has a range of aggravating factors and it could have perhaps been specific to offences under this law that that could have been added as one.I am also interested to know how many repeat offences have been committed already. If we had this legislation how many times would you have had someone who would fall under this criterion who has not been given a term of imprisonment and therefore would be likely to have been had this legislation existed. I am always interested to know whether or not we are—[Interruption] Sorry what was that?Clare Curran: Very low recidivism.JACINDA ARDERN: I am hearing that it is a very low recidivism rate which is the general rule of thumb for these kinds of crimes. So because there is a low rate of recidivism I would be interested in how many occurrences we have seen where someone has come before the court for a second time and has not been given a term of imprisonment. My assumption would be that if it was a repeat offender that would be likely to have been the case anyway. So are we legislating for something that actually has not been a problem or have there been some cases where that second offence has not been met with a term of imprisonment? I am just interested to know the context.The next issue I am interested in is given that again we are talking about a very specific set of types of offences we do know that relative to other types of offending there does seem to be a relatively high success rate for treatment programmes. Was any discussion had at the select committee around agreements memorandums of understanding or what have you between the Ministry of Justice and the Department of Corrections around ensuring that if there is a repeat offence and that if there is the presumption of a term of imprisonment there is also a presumption that there would be an appropriate Department of Corrections - led programme attached to that person’s sentence? We know that there are a number of programmes. They are lengthy programmes and sometimes scheduling of those programmes is an issue depending on the length of sentence. But it would seem to me ridiculous to have a regime where we say “Look we’ve got a repeat offender. They weren’t in prison the first time and obviously haven’t addressed the causes of their offending.” but not to therefore have something that also comes in and says “Well if we’re giving a term of imprisonment the expectation is that there would be treatment attached to that as well.” Obviously by and large in corrections you do see that kind of planning but I think if we are talking about repeat offenders it is particularly important.The final point I want to make in Part 1 still relates I think to clause 7. The explanatory note talks about the exceptions to when an offender must be sentenced for repeat offences to a sentence of imprisonment. The exceptions it says are: “unless the court considers that the offender should not be so sentenced having regard to the particular circumstances of the repeat offence;”—so there is some discretion there obviously—“and the particular circumstances of the offender (including without limitation his or her age if he or she is under 20 years of age).” So there is an exemption built in there around the age of the offender if we are talking about a term of imprisonment. What I am interested in and perhaps the Minister of Justice would like to comment on it is why the age of 20 was selected here. In a lot of legislation it is true to say we have a wide-ranging group of ages that are considered to be the age of majority but by and large the age of majority in a lot of legislation is 21—but not in criminal justice. In our criminal justice system as the Minister in the chair well knows it is 17 years of age.Labour members personally do not agree with that. We think it should be 18. New Zealand breaches the United Nations Convention on the Rights of the Child by it currently being 17. It is one of the lower ages compared with overseas jurisdictions but that is the age that tends to be used to distinguish between a youth and an adult. So I am interested that the age that is specified here is 20 years of age. I am interested in the rationale for that. It seems inconsistent. I am not advocating that this law should say 17. I would advocate 18 perhaps but 20 to be honest seems odd and it seems an “out there”. There might be very good reason for that—someone who was on the select committee might be able to give me some justification for that—but at the moment I would say that it strikes me as being a bit of an “out there” and a bit of an anomaly. And there is another section of the bill where I think there is a similar age issue but I am going to resume my seat in the hope that the Minister might be able to respond—Hon Ruth Dyson: Don’t hold your breath. She’s not on to it tonight.JACINDA ARDERN: —I am ever the optimist—to answer some of these questions. Thank you.PEENI HENARE (Labour—Tāmaki Makaurau): Tēnā koe Mr Chair and thank you for allowing me to take this short call. Just before I start I want to congratulate you because every time you resume the Committee or the House in your role as Chairperson or Deputy Speaker you always welcome everybody back in Te Reo Māori and it is more than just a “kia ora”. It is actually something very appropriate for the time and for the occasion. Nō reira ngā mihi nui ki a koe. [Interruption] Ha ha!Just to the bill at hand the Objectionable Publications and Indecency Legislation Bill I was not on the Justice and Electoral Committee at the time but I am fortunate to be on that committee now and I did have the opportunity to speak in the second reading so I am excited to get up now just to flesh out a few more of the thoughts that I had then in the hope that some clarification can come about. My colleagues have mentioned an overall strategy around justice and whether or not there is a coherent approach to dealing with such matters especially for such an abhorrent crime. I think the recent report released on the Roast Busters case certainly highlights a few questions for me. One of those is around how in Part 1 of the bill it talks about increased sentences from 5 to 10 years and I think the other one here is from 10 to 14 years. One is for the importing—that is 5 to 10 years—and for the distribution it is 10 to 14 years.I just wonder in light of the Roast Busters case whether if those penalties were about they would be deterrent enough for those young men who were involved in that particular case. Some of the statistics and my colleagues have mentioned some of them this evening perhaps question that. I cannot see the direct link to it being a clear deterrent especially when we know and the report says here that of the 131 offenders that have been sentenced to a term of imprisonment approximately 50 percent have been sentenced to less than 20 percent of the maximum sentence available and 89 percent have been sentenced to less than 40 percent of the maximum sentence available. I am just trying to find a link there between why harsher penalties should be an absolute deterrent for such a crime when I think that more important what the report did was highlight some deficiencies in the ability to be able to police such terrible crimes. Some of my colleagues in the Committee have already mentioned just how hard and difficult that will be in the fast-changing times of modern technology what with the internet and the ability to access it at any time and at any place.For the avoidance of doubt and I am speaking about section 131(2A) in clause 5—it targets technical expertise and the definition talks about not consciously downloading or sourcing. It has already been mentioned this evening about just being able to view objectionable material—it is just being able to glance at it and just being able to see it. I notice having a young son myself who involves himself in a young scene how easy it is just to wave around cellphones to show Facebook feeds and to be able to share an internet page just by turning round a laptop or a cellphone. The question is whether or not that makes his friends culpable or whether that falls under this bill—whether or not they can be prosecuted or whether or not they fall under this bill and could find themselves in a heck of a lot of trouble.My esteemed colleague here Clare Curran mentioned how the proposed sentences distort the relativity with physical offending sentences and it has been highlighted already but I want to continue on that point to talk about how it does distort the relativity between physical offending and of course the nature of offending that this bill proposes to sort out or to squash or certainly to be able to bring pertinent penalties to those offenders. We notice that by increasing the penalty time from 5 to 10 years and from 10 years to 14 years my concern—[Bell rung] Mr Chair?The CHAIRPERSON (Hon Trevor Mallard): Sorry I have just come into the Chair. I will consult the list. I call Peeni Henare.PEENI HENARE: Oh tēnā koe Mr Chair and just as I heaped praise upon Mr Borrows in his time in the Chair before you I do so now and I thank you for the opportunity to continue. I was talking about how it distorts the relativity between sentencing for physical offending and the kind of offending that this bill proposes to deal with by increasing the imprisonment time from 5 years to 10 years for importing and 10 to 14 years for distribution. I wonder whether and I hope that the Minister or certainly those who were part of the select committee during this bill’s passage can explain or at least provide a bit of clarification around the relativity that it is talking about there. In order to impose harsher penalties just for the mere distribution or for the importing of such terrible images and what have you—I am concerned that it is still such serious offending when you consider that the actual physical act of offending of sexual abuse of young children of minors is sort of lumped in as one and the same thing as distribution when quite clearly the evidence and indeed some of the submissions and the kōrero that I hear around this particular bill is very very clear and it highlights the ongoing effects and the mental effects that it has on the victims and their families and their friends.So that is just for a bit of clarification around that—about how it distorts the relativity with physical offending. Some of the terms in here are very technical and probably far too technical for this individual. But there are some—and Mr Clendon has already touched on this—about the vagaries of some of the words that are being used. I also—The CHAIRPERSON (Hon Trevor Mallard): Order!PEENI HENARE: No I will not speak about that. That is in Part 2. I will stick to Part 1. Bear with me Mr Chair. I cannot find the term. However I do know that Mr Clendon spoke about there being some vagaries around the very technical terms. What we are hoping in this bill that is being proposed is that some clearer definition can be given to allow the proper processes to take place with the judiciary and to give the judicial system the right framework to allow it to make sure that this bill certainly squashes the kinds of behaviour and activities that it intends to. Nō reira kia ora e te Tiamana ā kāti rā tēnā tātou. [So thank you Mr Chairman. I end here with acknowledgments to us.]MARK MITCHELL (National—Rodney): I move That the question be now put.The CHAIRPERSON (Hon Trevor Mallard): Given the fact that no one is going for the call I have no—[Interruption] Does the member really want it put or shall we just move to putting the questions? [Interruption] I will decline it and I will just move to putting the questions.The question was put that the amendment set out on Supplementary Order Paper 67 in the name of the Hon Amy Adams to Part 1 be agreed to.Amendment agreed to.Part 1 as amended agreed to.Part 2 Amendments related to indecencyCLARE CURRAN (Labour—Dunedin South): There are a number of pieces of Part 2 that I would like to speak to but I would like to turn my attention first to Supplementary Order Paper 67 tabled by the Minister of Justice to which I am hoping the Minister will speak. Supplementary Order Paper 67 adds new clause 14 and new Subparts 2 and 3 to Part 2. I am hoping the Minister will speak to this because this is a completely new clause in the bill and there has been no ability for there to be a debate or a discussion at a select committee.The Supplementary Order Paper creates a completely new part to the bill. It ensures that New Zealanders who assist foreigners to commit sexual acts against children overseas commit an offence under New Zealand’s law. This amendment as the Minister has said in the explanatory note of her Supplementary Order Paper is in response to a recent Supreme Court decision that was given in 2014. I cannot find the exact date but from memory I think it was in August 2014. The ruling in LM v R is that a New Zealander who assists a non - New Zealander to engage in sexual conduct with a child overseas would not be guilty of an offence under New Zealand law. This Supplementary Order Paper as I understand it is meant to address that. If the principal offender is neither a New Zealand citizen nor ordinarily resident in New Zealand they will not have committed an offence under New Zealand law. Therefore the court is unable to convict an assisting party because there is no offending to be party to.So specifically the amendment provides for party liability where the principal offender is a foreigner who has not committed an offence under New Zealand law and it provides for accessory liability for assistance given by a New Zealander to a foreigner after the offence has been committed. I have done the Minister’s job for her because I have just read out the amendment to you. To all intents and purposes this looks as if it is an amendment that has been raised in a previous case as another gap in the existing law and it is seeking to address that gap.My question to the Minister—and I am hoping that in good faith she will be able to address it—is whether there is precedent for this what the context for it is where the recommendations came from and what ability she has had to receive any reports on it. I think that when you put a completely new amendment into a piece of legislation at the Committee stage then you should be prepared as the Minister to get to your feet and actually address the context for it so that we are not just sliding something new into law that has had no ability to be tested that has had no ability to have officials provide advice around it and that has had no ability for there to be any discussion through the select committee process. So I am hoping that that is what we will hear from the Minister on during the debate on this part of the bill.I also want to address clause 13 in Part 2 which inserts new section 124A “Indecent communication with young person under 16” into the Crimes Act 1961. This creates a new offence under that Act of indecent communication with a young person—anyone under the age of 16. This new offence also applies where the person charged communicates indecently with a police constable believing the police constable to be a young person. I think we all know that this basically occurs predominantly as I would understand it in an online environment where there is an attempt to try to entrap the perpetrator into revealing their true purpose which is to commit an offence. This falls into the category of the gaps in the law that this bill is trying to address which we support.The submitters who submitted to the Justice and Electoral Committee all seemed to support the creation of this offence and seemed to consider it to be a positive step towards curbing the culture of child exploitation through the internet. They stated that it was worded in a way that allowed for new technologies in the form of social media to be included as they appear and I think that is very sensible for this legislation because it may very well be that new forms of media that we do not even know about yet will emerge where these kinds of offences will be perpetrated and young people will be preyed upon by the abusers. I think it is critical that we are writing legislation that can provide some kind of window to the future and that it is not always retrospective. I applaud that and think that it is important.One of the submitters the Legislation Advisory Committee agreed that there was a gap in the law that needed to be remedied although it considered that the explanatory note that described the gap as being between objectionable publications offences and the sexual grooming offence was inaccurate. The Legislation Advisory Committee said that it did not think it was clear that objectionable publication offences applied only if the offender makes a record of the communication as “distributes” in section 123 of the Films Videos and Publications Classification Act appears to capture the same action required in the proposed new offence.The comment was that there was a defence available where reasonable steps are taken to ensure that the young person is over the age of 16. I think the officials did go to some steps to reassure the committee. Even though I did not sit on the committee it does appear to me that there was an attempt to ensure that—although a legislative gap does exist where no record is made of an indecent communication because section 123 of the Films Videos and Publications Classification Act relates only to publications and the definition of “publication” in section 2 of that Act is such that in order to establish an offence against that section a record of the communication must be deliberately kept by the offender. I think that the discussion in the select committee—which recommends inserting into the Crimes Act new section 124A(3) which provides a defence where before making the indecent communication the person charged took “reasonable steps” to find out whether the young person was 16 years old or older and “believed on reasonable grounds” that they were that age at the time of communication. That is where the defence lies.So certainly this section of the Act really goes quite a long way to addressing the entrapment concerns that submitters had where the person charged communicated indecently with a police constable believing the constable to be a young person. I think that is the issue and concerns were raised at the select committee as to what extent the police could undergo that investigation with the person on the other end not knowing that they were being entrapped but where they did not make an attempt to find out whether the person was under 16 or not. I am reasonably comfortable that where that ended up is probably in the right place.Hon AMY ADAMS (Minister of Justice): I did want to take just a brief call to respond to Supplementary Order Paper 67 which Ms Curran talked about in her first call on this part of the Objectionable Publications and Indecency Legislation Bill because I do think it deserves a little bit of time to reflect on how it got to that point.The Supplementary Order Paper as the member has pointed out contains a number of reasonably operational changes to legislation but the one that I think Ms Curran talked about and that I think is worthy of spending a little bit of time on is new clause 14of the bill added by the Supplementary Order Paper. It does create a very clear provision about the liability of New Zealanders when they commit offences as a party against a child internationally. It did come about as a result of the Supreme Court decision in a case called LM v R that was issued by the Supreme Court late last year.In that case it was a very sad fact pattern as many of these cases are where a New Zealander was found to have been involved in taking sexually explicit photos of their 7-year-old stepdaughter in Russia. The issue before the appellate court was whether in fact the legislation permitted a New Zealander to be liable for an offence committed in another country where the principal party carrying out the offending was not a New Zealander. In that case the finding was that in fact New Zealand law had a gap in it which was that if the offender was a New Zealander then all parties to the offence who are also New Zealanders could be liable but if the offender themselves was not a New Zealander then the fact that a New Zealander was a party to that offence could mean they would escape conviction.That is certainly not the intention of the legislation and it would be quite wrong I think and against the will of most right-thinking New Zealanders to allow a New Zealander in that sort of situation taking sexually explicit photos of in that case their stepdaughter to escape conviction merely because of the nationality of the principal offender. Luckily in that case liability was not escaped because the court concluded that the offender was liable as the principal offender. None the less it raised a very serious matter that officials advised me should be addressed in this bill and I agreed with them to ensure that we do carry out our obligations under the UN Convention on the Rights of the Child and what is called the Convention on the Rights of the Child on the Sale of Children Child Prostitution and Child Pornography to ensure that there is full and effective criminal liability for transnational offending in this space.This is one of the categories of offending that I think it will not surprise anybody to know is seen to be of such seriousness and such severity that it should attract transnational liability and it has always been the intention—my intention and I think the Government’s intention long before I became the Minister—to ensure that the liability of New Zealanders should be comprehensive. Certainly when this gap was highlighted through the decision in LM v R the advice I received from officials was that this bill should address it. I agreed with that advice which is why we have in the Supplementary Order Paper before the Committee now this new provision that makes it very clear that no one can escape liability merely because the principal offender would not have been a New Zealand citizen at the time the offence was committed.I think that makes good sense. I do accept the point that that was not part of the bill when it came before the House but I would not want to have it resting on my conscience that a New Zealander could escape liability merely because their partner in crime—quite literally—was an offender of a different nationality. That was never the intention. I think it would be an unwarranted hole in the legislation and that is the basis on which the Supplementary Order Paper and the addition of that new provision are in front of the Committee.The other changes in the Supplementary Order Paper are reasonably prosaic addressing the Accident Compensation Act to ensure that the new offence of indecent communication with a young person and the existing sexual grooming offences are included in schedule 3 of the Accident Compensation Act to ensure that appropriate support is available. Similarly the new offence of indecent communication is added to schedule 2 of the Vulnerable Children Act so that anyone found guilty of such offences can have the appropriate restrictions placed on their employment in core children’s workforce roles.With the indulgence of the Committee if I can just mention the technical amendment to clause 7 which we have already covered in the first part which just makes it clear that that recidivism has to be an offence that both occurred and they were convicted of which I think is an appropriate safeguard.I just wanted to take that call to take the Committee through the matters in the Supplementary Order Paper very clearly and the rationale for them. If the Committee wants to debate that I would be very interested in hearing it.TRACEY MARTIN (Deputy Leader—NZ First): Kia ora Mr Chair. Can I thank the Minister of Justice for rising and explaining. I did not sit on the Justice and Electoral Committee. Obviously the clauses that make these changes to clause 13 of the Objectionable Publications and Indecency Legislation Bill did not go to the select committee which is unfortunate but I understand that. The bill went some time ago and it has taken a while to come back to the House. I appreciate her explanation because it is concerning to see what looks to a layman like quite a substantial change or insertion into the bill. So having only this part of the debate to truly flesh it out and therefore not having access to the same advice the Minister has it is greatly appreciated that she took that time so thank you for that. Up until that moment I was unsure whether New Zealand First would have been able to support the bill because it would have been preferable obviously—and I am sure we all agree—to be able to discuss the change and have submissions on it at the time with the rest of the bill but obviously that was not able to happen. So again thank you Minister for that. Certainly New Zealand First also supports the amendments to ACC legislation to allow for support for young people who are harmed by the actions of others in this way.Can I also pick up on another statement of the Minister at the second reading where she mentioned clause 13 and the other changes to clause 13. I quote from the Minister: “the bill creates a new Crimes Act offence of indecent communication with a young person and that means anyone under the age of 16. The new offence also applies where the person charged communicates indecently with a police constable”—we have been hearing this from Ms Curran—“believing that constable to be a young person. The new offence will be punishable by a maximum of 3 years’ imprisonment. This offence aims to address a gap in the law that exists between objectionable publications offences which apply only where an offender records a communication and the sexual grooming offence which is only made out where the offender takes steps to meet that young person.” This is the bit I am particularly interested in Minister: “Indecent communication with a young person can occur in a variety of old and new media including text or picture messaging internet chat and of course the telephone.”We fully support the new offence. New Zealand First fully supports the new offence although my colleague Denis O’Rourke who sat on the select committee—and I am sure he articulated the point very clearly—did not believe that the maximum of 3 years was enough for this particular offence. He pointed out that compared with other offences inside the bill that he felt were not that different in nature where the possible outcome for the offender was that it went from 5 years to 10 years and in one case 14 years the 3 years for this offence was not he felt adequate. I think he articulated that quite clearly in his second reading speech.I want to pick up on the contribution around that particular last paragraph and the contribution from Ms Curran previously when she mentioned the Harmful Digital Communications Bill. I am wondering whether the Minister might take another opportunity to actually rise and speak to this particular point and her comments that these indecent communications with a young person can occur in a variety of old and new media including text or picture messaging internet chat and of course the telephone. I am assuming that this also means Facebook grooming. A real-life incident that I am aware of is a 17-year-old going on Facebook and grooming 13-year-olds to then meet them and try to have sexual relations. My understanding is that—and please I hope for some clarification Minister—this legislation could catch that internet grooming.I guess my question around the two bills is whether it would be more appropriate if what we are trying to capture in the Harmful Digital Communications Bill which has a sentencing provision I think that is around about the same—2 years or 3 years is the recommended sentencing around digital harm in that bill—was actually covered by that paragraph Minister. With regard to the digital harm legislation we have an approved agency and we have all these other ways to deal with it up to a point. Perhaps this legislation actually takes that point onward and this might be the answer to the impasse New Zealand First has with that piece of legislation. I am just putting it out there and looking for any sort of direction. We certainly do not want to minimise in that comment the impact of digital harassment.JACINDA ARDERN (Labour): I rise to take a very brief call. It relates somewhat to the provisions that the member who has just resumed her seat Tracey Martin was speaking to. As I discussed in Part 1 I am concerned around the consistency of the age of criminal responsibility that is scattered through this bill. I am speaking specifically to clause 13 new section 124A(1). If you make a cross-reference back to the Crimes Act there are some significant differences when compared with the amendments we are making today. New section 124A(1) provides that “A person of or over the age of 16 years is liable to imprisonment for a term not exceeding 3 years if he or she intentionally exposes a person under the age of 16 years (the young person) to indecent material (whether written spoken visual or otherwise alone or in combination) in communicating in any manner directly or indirectly with the young person.”At the moment it seems that we are debating legislation in this House controversial legislation around digital harm that has an overlap with legislation. There has been some discussion as to whether or not we are creating inconsistencies with what is able to happen in an online context versus what will happen elsewhere. I think it is important that we are consistent in the way that we legislate in this area. My concern is that this is an increase in the potential term that might be applied—3 years as opposed to 2 years I believe as it is currently written in the Crimes Act under this section. But the Crimes Act is also silent on age. The Crimes Act does not specify an age so we assume that it is the age of criminal responsibility that applies in the provision as it may apply currently. That is my assumption just on my quick read of the Crimes Act.But now we are creating liability if an individual is of or over the age of 16 years. I question again why it is 16 years when in the Crimes Act it is 17. So why is it 16 years in this legislation? There might be justification for that. It might be that you create another regime that applies to young people. But I am consistently concerned that there is an erosion of the youth justice system in the way that we are no longer differentiating between adult and child and that we have consistencies across our legislation when it comes to care and protection at 17 and when it comes to the age of criminal responsibility at 17.Our care and protection age is the lowest age in the developed world that someone will exit care and protection. When it comes to criminal justice it is 17. When it comes to being able to take out tenancy agreements it is 18 and accessing most of our benefits it is 18. I believe even real estate licences wait until at least 18. There are a few things that sit at 21.Clare Curran: Cyber-bullying.JACINDA ARDERN: Cyber-bullying is 14. We have to decide in this Parliament when we consider an individual to have moved from child to youth to adult. If we listen to the overseas jurisdictions they have generally stuck to a rule of thumb that it is 0 to 12 12 to 18—or it might be 14—and then from 18 on you are considered an adult. Yet in our legislation we are consistently all over the shop.I understand carve outs for legislation as it relates to for instance significant crime like murder. I understand that. But I am concerned that we have pepper-potted through our legislation different ages for liability. If we do that I think we should be explicit that that individual should still be considered a young person or child for the purposes of the way that they are dealt with perhaps in the court. If we are going to say we want that liability to apply to a 16-year-old perhaps you say therefore from 16 to 18 we want it dealt with in the Youth Court for instance because that is what the Youth Court is designed to do. Maybe then your penalty regime for that age group might be different. We are not saying ignore the issue; we are saying make sure the response is catered to work with a young person. This is based on the fact that we know the evidence tells us that the earlier you criminalise a young person the less likelihood you have of being able to turn that situation around. I look forward to the Minister’s response.DAVID CLENDON (Green): Can I just acknowledge the comments from the speaker we have just heard from Jacinda Ardern. I think in the context of what we are talking about here that there is a discussion to be had about age in terms of offending. The age that was not mentioned is that of students in terms of their eligibility for student support. Until the age of 25 I think one still considers the income of their parents as part of the criteria. So we have got an age range virtually from 12 or 14 to 25 and that does seem peculiar. Presumably the 16—I mean we have got an age of consent. It is difficult because between 16 and 18 often there is a significant development in young people. They do move almost from childhood to adulthood in those few years. So that is probably a debate worth having.In the context of Part 2 of the present bill we are looking at the Greens do support this inclusion of the specific reference to this offending the notion that improper indecent communication with a young person should be captured within the legislation. The example given in some of the conversations is that it may be for purely nefarious reasons and an individual’s gratification that they seek to address a young child to expose them to pornography or whatever it is. I think we need to be aware too of the more general harm that can be done.There are lots of evidence and research findings emerging that point to the significant harm that can be caused to young people who are exposed at an early age to pornography. It is pervasive. It is much more accessible than it has been in previous years I guess. We know from the research that young people who are routinely exposed to pornography at young ages often have trouble developing relationships in later life including sexual relationships but not only those. Their expectation about what is normal sexual behaviour between consenting couples is also sadly skewed. There is a lot of significant psychological and by extension physical harm that can be done to children simply through excessively early exposure to pornography. So I think it is appropriate that we do seek to put some boundaries around this having acknowledged the rather inconsistent approach we take to ages.I will leave that but the other significant part of this bill of course is this question of a constable who may act as a fictitious young person. Again the example given is that if the parents of a child of 12 14 or whatever age discover that their child is being exposed to some sort of approach online they can then inform the police and have somebody essentially pick up where that left off and just see how far this individual is going—whether it steps across the line and whether it is something that ought to be prosecuted in this way. There are issues about entrapment or potential issues about entrapment but I think we were given some comfort in the conversation at the select committee level that the police force and other agencies are very aware of the boundaries around entrapment and although this is a new environment the principles of that do carry over. It is in nobody’s interests for them to go out and try to stimulate this sort of behaviour to endeavour to get people to initiate this sort of behaviour but certainly where it exists I think it is entirely appropriate that these provisions should be there to enable police or other agencies to intervene in order to establish the boundaries of the offending and to respond appropriately.There were some concerns about this language about people taking reasonable steps to determine the age of a person they are communicating with—reasonable steps to determine whether they were above the age of 16—and whether they might believe them to be that on reasonable grounds. Again these terms are not defined clearly in this legislation but there is a body of case law on this notion of reasonableness. It is subject to context. It is subject to the time place and situation. Again I think that we are wise simply to let it lie as it is to trust in the discretion of the agencies and indeed of the judiciary to establish whether somebody might in a particular instance have reasonably and genuinely thought that a person was 18 or 20 years old or whatever when in fact they were only 13 or 14. So with those two comments I just continue to say we support this legislation and as we have indicated we support Supplementary Order Paper 67 from the Minister of Justice.The question was put that the amendments set out on Supplementary Order Paper 67 in the name of the Hon Amy Adams to Part 2 be agreed to.Amendments agreed to.Part 2 as amended agreed to.Clause 1 agreed to.Clause 2 agreed to.The Committee divided the bill into the Films Videos and Publications Classification (Objectionable Publications) Amendment Bill the Customs and Excise (Objectionable Publications) Amendment Bill the Crimes (Indecency) Amendment Bill the Accident Compensation (Cover for Mental Injury—Indecency Offences) Amendment Bill and the Vulnerable Children (Children’s Worker Safety Checking—Indecency Offence) Amendment Bill pursuant to Supplementary Order Paper483.Bill to be reported with amendment presently.The CHAIRPERSON (Hon Trevor Mallard): Members it has been drawn to my attention that when the Committee voted on the Immigration Amendment Bill (No 2) it inadvertently did not vote on the schedules to the bill.TIM MACINDOE (Senior Whip—National): I seek leave for the Committee to reconsider the Immigration Amendment Bill (No 2) solely to enable schedules 1 and 2 to be voted on.The CHAIRPERSON (Hon Trevor Mallard): Is there any objection to that course of action? We will proceed.