Crimes (Intimate Covert Filming) Amendment Bill — First Reading 
Crimes (Intimate Covert Filming) Amendment Bill — First Reading 
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Crimes (Intimate Covert Filming) Amendment Bill 
First Reading 
Hon PHIL GOFF (Minister of Justice) 
: 
 I move  
That the Crimes (Intimate Covert Filming) Amendment Bill be now read a first time. 
 I intend to move that the bill be referred to the Government Administration Committee. 
Intimate covert filming is the making of surreptitious visual records of other persons in intimate circumstances without their knowledge or consent and in circumstances that those persons would reasonably expect to be private. Generally covert filming has a sexual element. However whatever the intention it constitutes an invasion of personal privacy concentrating on situations that are personal and private. As such it is an affront to human dignity because it turns individuals into objects for others’ gratification and it deprives individuals of control over how they are presented to the world. The potential publication of the images particularly on the Internet aggravates the invasion of the individual’s privacy. Publication can additionally result in fear for personal safety—as well of course as shame and humiliation. 
I have to say that the problem is getting worse. The old offence of peeping and peering has been aggravated by the advent of new technology. Miniature cameras mobile phone cameras and other devices have been used to visually record women and children in circumstances of undress or intimacy without their knowledge or approval. The Internet facilitates the transfer of those pictures around the country and indeed around the world. 
Voyeurism is offensive in itself but additionally it is potentially a gateway offence to more serious sexual offending. In 2003 the Government asked the Law Commission to review the issues relating to covert filming and to make recommendations as to options for law reform. In its 2004 study paper on intimate covert filming the Law Commission proposed a dual response to such filming in New Zealand. It advocated criminalising specific types of conduct engaged in by the filmmaker the distributor and the person possessing the film. At the same time it recommended ensuring that there is an accessible civil remedy for the subjects of the films. Civil remedies will be provided for in a privacy amendment bill that is currently under consideration and that will be introduced in due course. 
Under existing legislation no provision specifically prohibits the taking of a photograph or other visual record of a person who is nude partially nude or engaging in sexual activity. The Crimes (Intimate Covert Filming) Amendment Bill proposes amendments to the Crimes Act to create new offences in line with the Law Commission’s recommendations. Firstly the bill defines “intimate visual recording” to mean “a visual recording taken … without the knowledge or consent of the person who is the subject of the recording and the recording is of (a) a person who is in a place which in the circumstances would reasonably be expected to provide privacy and that person is—(i) naked or has [sexual] parts of his or her body exposed partially exposed or clad solely in undergarments: (b) engaged in an intimate sexual activity: (iii) engaged in showering toileting or other personal bodily activity that involves dressing or undressing:”. The definition also includes recording beneath or under a person’s clothing. 
Three new offences broadly relate to the making of an intimate visual recording; the possession of an intimate visual recording; and the publishing importing exporting or selling of an intimate visual recording. All the offences have a penalty of imprisonment not exceeding 3 years except the simple possession offence which has a penalty of imprisonment not exceeding 1 year. 
This kind of legislative response is consistent with what is being done in other jurisdictions. The United Kingdom in 2003 passed a law making voyeurism an offence. Similar changes making such activities an offence are proposed in Canada the United States and New South Wales Australia. Making this behaviour a criminal offence enables the police to use their powers of detection and investigation including those of search and seizure. Criminal penalties also have a deterrent effect and sentences requiring reparation will help ensure that victims receive compensation for the harm they have endured. Upon conviction the court will have the power to order that a recording be destroyed and that any equipment used in the commission of the offence be forfeited to the Crown. 
The bill exempts from criminal liability those agencies that during the course of an investigation of criminal offending may inadvertently make possess or publish an intimate recording for the purpose of their functions relating to law enforcement safety or security. The exemption will not apply to any visual recording made or published in bad faith and without reasonable cause. 
This legislation provides victims of covert filming with an effective response. The investigative and prosecutorial resources of the police can be utilised. The process of conviction and penalty can have a deterrent incapacitative rehabilitative and reparative effect. I commend this bill to the House. 
Dr RICHARD WORTH (National—Epsom) 
: 
 National supports the Crimes (Intimate Covert Filming) Amendment Bill. There is no doubt at all that new laws are needed to curb secret filming of people in intimate situations. Where people have a reasonable expectation of privacy they should have legal recourse if they are secretly photographed when they are in a state of undress or when they are engaged in sexual activity or other intimate bodily activity such as using a toilet. This is a serious invasion of privacy and an affront to human dignity. So too is secretly photographing underneath people’s clothing—so-called ”up-skirt” filming. In connection with this first reading I would like to deal with just a few matters if I may and offer I hope some constructive criticism on this bill. 
Surreptitious filming spying and peeping are not new occurrences. However with the introduction of new technology especially mobile phone cameras which can download on to the Internet it is becoming much easier for techno-savvy people to invade the privacy of others and distribute photographs or videos of those caught unawares. As the previous speaker has said at the request of the Government the Law Commission recently issued a report that considers the issue of covert filming of others in intimate situations without their knowledge or consent including the subsequent distribution of recorded images. The Law Commission wisely in my view deliberately chose not to focus on wider issues of covert filming in general. So its report did not cover covert observation of people recording of non-intimate activities—for example walking down the street—or filming of people who could not reasonably expect privacy and perhaps an illustration of that would be filming topless bathers at a public beach. 
The Law Commission’s report defines “intimate covert filming” as the filming of others in intimate situations without their knowledge or consent including the subsequent distribution of those recorded images. One of the things that the Law Commission did was to review overseas jurisdictions’ responses to the problem against the background of course of current New Zealand law. The commission looked at a range of New Zealand statutes under which this type of conduct could fit including the Summary Offences Act the Crimes Act the Harassment Act the Human Rights Act the Employment Relations Act the Broadcasting Act the Privacy Act and the Films Videos and Publications Classification Act. It found that there was no specific statute or provision that was designed for this type of problem. So the reality is that coverage by New Zealand law of this behaviour is patchy limited and circumstance specific. While some statutes fit some circumstances only very specific behaviour is captured. The current statutes are simply not able to handle the ever-changing nature of technology that makes such conduct difficult to legislate against. 
The previous speaker has made the point and I would like to come back to it in a moment that the Law Commission proposed a dual approach to dealing with intimate covert filming in New Zealand by criminalising making distributing and possessing covert films or images and then significantly by ensuring that there is an accessible civil remedy for the subjects of such filming. One of the things that it might have been possible to do was to create a specific statutory tort as the common law tort of interference with privacy has been developing in the New Zealand courts. Instead the Law Commission has proposed amendments to the Privacy Act to allow victims the opportunity to use the already established complaints resolution process under the Privacy Act. So the plan of the commission was that these amendments to the Privacy Act would also allow the Human Rights Review Tribunal an explicit power to deal with intimate covert filming cases and order the destruction and forfeiture of any images or equipment used in the making or distribution of such images. 
What we see today is the criminal side of the coin in the Crimes (Intimate Covert Filming) Amendment Bill. To make it clear beyond doubt the general policy statement in the explanatory note records that the bill implements the criminal offence provisions recommended by the Law Commission. It does not say as the Minister went on to say that there was further legislative action planned in the civil arena. I express again concern at the legislative policy of this Government that when there is a problem the problem is it seems always approached in a piecemeal and patchwork way. The commission has proposed an all-encompassing approach to deal with this issue. The Government in its wisdom or I would say its lack of wisdom has chosen not to take that approach at all. We often find in that setting and we have seen it a lot in this particular session of Parliament that when the Government comes again to add another piece to the patchwork quilt gaps appear—interstices appear—and that is of course what is likely to happen here again. 
I cannot help but refer to a statement in the explanatory note of the bill: “Criminal penalties such as imprisonment have a deterrent effect and”—this is the part I am emphasising—“sentences requiring reparation will also ensure that the victims will receive some compensation for the harm they have endured.” It shows a naivety on the part of whoever wrote that commentary to think that that will in fact be a practical possibility. Reparation is in the nature of compensation for harm. It is a reimbursement of loss—of a loss that can be measured in some monetary way. It is very difficult to see in the case of unlawful covert filming how there could be in the context of the criminal law such reparation awarded. It is quite possible in the context of the civil law but when one talks about criminal reparation in this context then quite clearly that particular sentence is a mishit of an extreme nature. 
National hopes this bill will have a speedy passage. It is important that it be passed to deal with events in the community that cause us all significant concern. So National supports this bill its reference to a select committee and the subsequent further steps that will see it enacted into a statute of this Parliament. 
MARTIN GALLAGHER (Labour—Hamilton West) 
: 
 I am very pleased that the Crimes (Intimate Covert Filming) Amendment Bill has been introduced and I note that it will be referred to the Government Administration Committee. That committee has done some very useful work in the whole area of censorship and in particular in protecting young people. 
As we are aware intimate covert filming is the making of surreptitious visual records of other people in intimate circumstances without their knowledge or consent and in circumstances where the person would reasonably expect to be strictly private. As was said by the Minister in his speech and by the previous speaker intimate covert filming is an increasing problem. It is the modern form of the peeping Tom the modern form of peeping and peering aggravated by technology such as cellphone cameras—the use of which is exploding—and computers that make it relatively easy to record and distribute widely what an electronic camera or phone observes. 
In the context of the Internet when we are talking about wide distribution we are talking about thousands millions of people; obviously we are talking about an international circulation. There are no borders in terms of the Internet. 
It is salutary to remind ourselves that no provisions currently exist to prohibit such behaviour. The act of covert filming is technically not a crime. The bill amends the Crimes Act of 1961 and I am pleased to see that it is an offence to make publish or distribute voyeuristic material recorded without consent and the offence will carry a penalty of up to 3 years’ jail. There will also be a penalty of up to 1 year’s jail for knowingly possessing such material without reasonable cause. International research shows a correlation between voyeurism and sexual offending and that it may be a gateway offence to more serious offending. In the context of protecting people particular our young people I believe that this is a very very overdue and needed bill. 
The bill will also enable the police to use their powers of search and seizure to investigate immediately the sources of images discovered on the Internet. Clearly this bill provides the victims of covert filming with an effective response. 
I have noted the Minister’s comprehensive introductory speech. I also note the observations made by the previous speaker and I am sure that he along with other colleagues will pick up on the issues that he raised in terms of the very important select committee work to come. I certainly agree with the previous speaker that we need to move with significant speed with reference to this bill and look forward to the Government Administration Committee taking appropriate action in terms of hopefully a relatively speedy process so that this bill can be reported back to the Parliament. I certainly commend the bill to the House. 
PETER BROWN (Deputy Leader—NZ First) 
: 
 I will say from the outset that New Zealand First will most certainly support the bill’s referral to the Government Administration Committee. I am not totally convinced that that select committee is the correct one but nevertheless we will support its referral. It is a sad day in New Zealand when we have to produce legislation like this. It is a sad fact though that there are some weirdos out there and they will resort to this sort of activity. Much has been said by earlier speakers about the activities of those people but I will not enlarge on that. But I do think that in the fullness of time this activity will become a more prevalent crime. I think this bill is needed with some degree of urgency. 
I say that it will become more prevalent because I have read many of the censor’s reports on those sorts of videos coming into this country and they feed the brains of weirdos who would get into this sort of activity. So New Zealand First supports the bill. 
However I raise three points of concern. Firstly clause 3 inserts new section 216M “Protection from liability” and applies to any member of the police amongst other groups which I will come to. Why should members of the police be protected if they have this sort of material? Let me put a hypothetical case where a young woman or boy is filmed covertly and the parent or someone calls the police and they become involved. Why is it necessary for every police officer involved in that investigation to see this sort of material? Why cannot the average police officer accept the word of the investigating officer that the matter is to be addressed? The section also covers any customs officer and a list of other people who will be protected from liability if they have this material and rightly so in most cases. 
But we say that in every case the material in the hands of these individuals should be confined to the people whilst they are doing their investigation or whatever part of the proceedings they are involved in. As I read the bill this material could be passed from one member of the police or Customs Service with impunity. I do not think that that is tough enough. I am certain the select committee will address that matter. 
The honourable member who resumed his seat referred to this bill as relating to the modern version of the peeping Tom. I agree with him 100 percent. Peeping Toms stalkers and people like that are undesirable. But occasionally we come across a person who has been set up as a stalker. It occurred to me on reading this bill that if a person filmed himself or herself and transferred it to the computer or the video phone of somebody else to make it appear that the somebody else had filmed him or her—I see the Minister is smiling but this could occur. 
Hon Phil Goff 
: Why would you? 
PETER BROWN 
: To get the other person in strife. 
Hon Phil Goff 
: False claims are made in all sorts of criminal areas. The courts deal with those. 
PETER BROWN 
: I do not know that the courts would deal with this as adequately as they would deal with the genuine offender under this bill. I am saying to the House and I see that the Minister has taken note that hopefully it will not be exploited by people but it could occur to a very minor degree. But I believe that this bill needs to be balanced a little bit in that area. 
The final point I would like to make is that I understand that the Australians adopted legislation along these lines some time ago. I understand that very very recently in the last few weeks because of this type of legislation they have now advanced it to preclude parents photographing their children in any state of undress—namely at a swimming carnival and an athletics meeting. I understand that in Australia—I wanted to check this out but I did not have time before I came to the House—no parent is allowed to film his or her children at a swimming gala for example or at a sports day. To me that really is a backward step and I hope that this is not a move along those lines. 
Having said that—and it might have appeared quite negative but it really is a reflection of our concern that we get this legislation correct—I do say that New Zealand First welcomes this bill. It is a sad day for us that we have to produce such legislation in this country but we do and New Zealand First will support it proceeding. We support it going to a select committee. 
STEPHEN FRANKS (ACT) 
: 
 I rise for the ACT party to comment on the introduction of the Crimes (Intimate Covert Filming) Amendment Bill which is yet another ad hoc amendment to the Crimes Act. We have amendment bill after amendment bill and some of them sit for 3 4 or 5 years on the Order Paper. Because the Government so likes to look busy active and hot on crime it keeps introducing something to scratch an itch every time one appears. In this case I expect that if the Government Administration Committee does its job and patches up this shoddy piece of work the ACT party will vote for it. But I have to say that once again Mr Goff has come into this House with a bill that does not do what he said it would do. We know that when he puts his solemn voice on and sounds terribly responsible we probably have something of the— 
Hon Phil Goff 
: The member should try it some day. 
STEPHEN FRANKS 
: Try putting on the responsible voice? [ 
Interruption 
] I cannot hear the Minister. He is being overridden by his own whip but never mind. If he had a genuine question I would try to answer it. 
We have a bill here that does not even bear cursory examination in the sense that it catches people whom no one would want to catch. Why could the Government not have made sure for example that we knew who would be liable when the inadvertent filming was done by a security camera? Nothing in the bill states whom that filming has to be by. Presumably a security camera that has been installed often operates automatically and without any doubt at all some of those cameras catch people who are engaged in intimate sexual activity in situations where they would not reasonably expect to be caught. I see Dr Richard Worth looking up. He will be aware that some law firms have had to put security cameras into places like the photocopier room to try to discourage people from using the photocopier to copy their own buttocks. That became a sport and I understand that some law firms have installed security cameras. 
The Government did not have the wit in developing this law to provide already for something as obvious and as frequent as the ownership of security cameras that are intended to prevent offences. There will be security cameras in some places where people shower toilet or undertake dressing or undressing and everyone would want them to be there. 
Dr Wayne Mapp 
: Like a beach. 
STEPHEN FRANKS 
: Like a beach although that may not be a place where someone would reasonably expect privacy. But there are places where one would reasonably expect privacy—and it may be in a locker room where one would expect privacy—but nevertheless there have been thefts and therefore a security camera has been installed. This bill has no proper exception from its purpose—a really simple thing. It should not take the ACT party’s lawyer to ask where the protection is for proper-purpose filming that inadvertently catches people who are engaged in sexual activity. 
As I said there is a question as to who exactly makes an intimate visual recording of another person when in fact it is done by a machine that may have been installed a long time ago and that may operate on a time switch so it is perfectly automatic. I think that the Government Administration Committee can deal with that sort of thing. ACT does not have a member on that select committee so I am trying to assist the Minister by recording one or two of these things for the committee to take into account when the legislation gets there. I am sure that the bill can be fixed and these issues do not detract from the overall need for legislation like this. All that it does is to highlight the incompetence of a Minister who would rather think of the slogans he will use when he introduces this bill and announce it three or four times before it is brought in than look through the detail and decide what the bill actually does. 
There is another perhaps just historical feature that members may be interested in. This legislation is probably the final death knell to the old private detective photograph. If we think of the people in that profession we recall that for many years they went about trying to catch intimate sexual activity by parties who were not married because those photographs were essential to produce in proceedings for divorce. I think this bill will be the end to that if there is any circumstance in which it still goes on. Again there is no exception for someone who is filming for a proper purpose. Whether the select committee will consider that that too is a proper purpose to be preserved I do not know. One of the most famous cases of the inter-war period involved the so-called “headless duke”. The proceedings turned on the identity of the duke or the person filmed and of the person who might have been assisting him in an intimate sexual activity. It seems that this century will not ever have such a prominent piece of titillation for the benefit of the public in a court case. 
New section 216M in clause 3 gives a set of protections from liability and as we would expect with a Government like this that is focused on elevating State power the only people it thinks to protect are essentially those who are the agents of the State or who are lawyers or agents. I wonder why the Minister and his officials could not have addressed their minds to the other people who may have equally legitimate reasons to be protected from liability. If they had been focused on anything other than elevating the power of the nanny State they might have come across the fact that they were potentially intruding— 
Dr Wayne Mapp 
: Hugh Grant would have been protected under this! 
STEPHEN FRANKS 
: Yes he would have reasonably expected privacy. He could well have reasonably expected privacy—he was in a dark place in a street and under trees I think. We have another reason for the film industry to come to New Zealand! It is true. As Dr Mapp says it takes only 5 minutes to think of things the Government should have thought of but has not. 
That turns the mind to something a little more serious. This Parliament will spend time on this bill and treat it as a matter of urgency when there may have been only a few cases of covert filming. I do not know how many there have been and I am not going to go through the list. I detected a salacious note in the summary provided by the Minister and indeed by Dr Worth of the ways in which this law can be triggered so I will not indulge in that to the same extent as them. But there is a serious point in looking at what this bill says about the priorities of this Government. At the moment on the streets of New Zealand we have night after night children offering themselves in prostitution. There is a simple solution and it is one that the Justice and Electoral Committee tried to get put into the Prostitution Reform Bill. It is very straightforward. It is to enable the police to ask the age of young-looking prostitutes. That would put into the hands of the authorities some kind of power to enforce the law against under-age prostitution. We already know now the effect of the Labour-Green removal of that power from the Prostitution Reform Bill. This Government in the short remaining time that the House has before it rises for the election chooses to get headlines through the salacious attraction of the intimate covert filming amendment instead of going back and fixing something that is simple and that clearly harms people every day—that is the almost unrestrained indulging in child prostitution which could have been fixed. 
I hold United Future culpable in that too. I understand that part of the pressure for this bill came from Marc Alexander. If United Future had any weight and influence on this Government at all why did it not say that rather than pandering to the media interest in covert filming a much higher priority would have been to make effective the existing law against under-age prostitution? It could be done quite simply. The thinking had already been done by the select committee. It could have simply reinstated the provisions it took out instead of the Government making such a fuss about this bill. 
NANDOR TANCZOS (Green) 
: 
 I rise to speak on behalf of the Green Party and to say that the Green Party will support this bill certainly to select committee and we would expect to continue that support because we think this is an issue of some concern. Clearly the development of new technology has made opportunities for intimate covert filming much more numerous. An obvious example is the widespread use of cellphones with cameras and with video ability. The  
New Zealand Herald  
recently ran an advertisement selling very cheaply very small digital cameras that would probably be perfect for that kind of activity. So the mechanisms to do that kind of thing are widespread and it is clearly becoming more of a concern. Just today I was speaking to a member of the public who asked me what was going on in the House. I mentioned this bill and that person came up with a story about being the subject of unwanted and invasive photography. 
So I think it is quite a significant problem but that is not to say that we do not have some concerns about the bill. Hopefully they can be addressed at the select committee. 
I think some of the concerns of members who have previously spoken may have been exaggerated or are easily fixed. Peter Brown talked about the situation in Australia where parents are more or less forbidden to take photos of their children in swimsuits. I know that the member was looking for things to say but it seems a bit irrelevant to this bill. One of the points of the bill is that the recording is done without the knowledge or consent of the person. 
Stephen Franks 
: What about babies in the bath? There is no exclusion for that. Everyone takes photos of their baby in the bath. 
NANDOR TANCZOS 
: I have taken photos of my baby in the bath but I would say that it is with both her knowledge and her consent as far as a 2-year-old can give consent. I do not think that those things are really of great moment. 
Something that perhaps makes me more concerned is new section 216H “Prohibition on making intimate visual recording” inserted by clause 3. It states: “Everyone is liable to imprisonment for a term not exceeding 3 years who intentionally or recklessly makes an intimate visual recording of another person.” The use of the word “recklessly” concerns me. “Intentionally” is something that is quite straightforward but “recklessly” is a much more difficult term. It is the kind of term used for example in anti-terrorist legislation. It seems particularly excessive in legislation like this. 
Mr Franks raised the concern around for example security cameras that might inadvertently pick up people engaged in intimate sexual activity. 
Stephen Franks 
: Bonking. 
NANDOR TANCZOS 
: “Bonking” the member says. I think that that is a concern. Is it “reckless” to make such a recording? I think there is an argument to be made there. One of the ways to fix that is simply to remove that term “reckless” and to confine the provision’s application to people who intentionally make an intimate visual recording. That is something I hope the select committee will look at. I do not know that it would solve the problem for the private investigators that Mr Franks mentioned but I am not sure whether they do that in reality in this country or whether it is just a figment of Hollywood’s imagination. If they do I do not know that they should be allowed to do it anyway. We will not worry too much about that. 
The other provision that worries me is new section 216J “Prohibition on publishing importing exporting or selling intimate visual recording” inserted by clause 3. I am a bit concerned about the prohibition on importing. Somebody would be liable to a prison term not exceeding 3 years. The provision relates to commercial gain around those activities and is distinct from simple possession charges which have a maximum term of 1 year. This provision covers the more serious offences and includes importing. Does that include the downloading—which theoretically is importing—of an image from a computer? It could be an image held on a server in perhaps the United States or some other country. Is it importing to download that to a computer in this country? There has been a great deal of ambiguity introduced into the question of whether downloading is importing because of some of the anti-terrorist legislation. That is a real concern. It means that someone may be subject to the more serious conviction even though in reality it is simply a possession offence. 
The other thing that is even more innocuous is that an enormous number of paparazzi celebrity magazines are available particularly in other countries—we are not quite so excessive in our regard for celebrities in this country. We can just open up the  
Woman’s Day 
—which I occasionally see in the doctor’s waiting room—and see photos of topless celebrities on the beach or in their apartment in some French Riviera estate or something. Does that mean that the people who import  
Woman’s Day 
 become liable to that charge? If I imported a paparazzi magazine from the United States that had something of that nature would that make me liable to 3 years in prison? It seems quite excessive. It does not seem proportional and it does not seem to be in tune with the stated intention of the bill. I think we need to have a really careful look around the importing of visual recording. 
My other point relates to section 216M “Protection from liability” inserted by clause 3. Mr Franks raised this point; again it is something that we share. The provision mentions various agents of the State—police customs officers secret service employees lawyers and the like. A person who is subject to the provision is protected from liability as is “any other person of a prescribed class.” I am not exactly sure what that means but it seems to me that there are people who are not necessarily State agents who should be protected from liability. The subject of the recording may well for some purpose that I do not necessarily know wish to send it to someone else who is not his or her lawyer. If the subject gives that recording to someone else that person would still be liable as having committed an offence. It may be that my partner was the subject of such a thing and that she showed it to me because she wanted to share with me the hurt of it. That would immediately make me liable to a year in prison for possession. That seems to me to be quite wrong and I would have thought that if the subject gave that recording to someone that should be a protection from liability. 
The other thing I will mention is section 216M(3) inserted by clause 3 whereby people are protected from liability if a recording is made “for the purpose of or in the course of carrying out” functions. That is something Peter Brown touched on. Law enforcement agents who do something for the purpose of enforcement activities should be protected from liability but “in the course of” is quite a different thing. That is actually very broad and I think that in light of the pornography scandal going on in the police at the moment members of the public would be extremely concerned about any opportunities for that to lead to abuse. For the provision simply to state: “in the course of” lawful activity is perhaps broader than saying: “for the purpose of” and that is something we need to look at as well. 
I am somewhat comforted by section 216M(7) which states that any recording so made must be immediately destroyed or made available to the person who is the subject of it. That provides a bit of protection but I still think we need to look at where that protection from liability for agents of the State starts and ends. There is still potential for abuse by an officer who is so minded. If one has a warrant to do surveillance of a house for example maybe one could say that it is in the course of activity to put a camera in the bathroom—but is it necessary? That distinction does not seem to be clear in the bill and it is something the Greens think should be looked at. So the Greens think that a number of issues and concerns need to be tidied up by the select committee but in general we support the purpose of it and we look forward to working through it at the select committee. 
MURRAY SMITH (United Future) 
: 
 United Future will be supporting the first reading of the Crimes (Intimate Covert Filming) Amendment Bill. When we approach legislation like this a question we do not ask ourselves often enough is whether it is necessary. Generally I think we are an overlegislated society. 
Dr Wayne Mapp 
: I thought you were supporting this. 
MURRAY SMITH 
: We will be supporting this bill. We are an overlegislated society and we tend to think that the solution to all problems is to pass yet another law. Instead we should be focusing very much on public self-regulation. We can do that through education of such a nature as values education which United Future has been pushing hard and civics education. Law tends to be something of a blunt instrument when it comes to finding solutions to problems and we should be looking at it more as a last rather than a first resort. 
The question we need to ask ourselves about any legislation that we look at passing is if we did not need it 10 or 20 years ago why do we need it now. This legislation answers that issue very clearly and that is why we are keen to support it. The technological advances that have taken place over the last 10 years are such that things that were not envisaged at that time as interfering with privacy are now commonplace. In particular as we know the use of very small cameras and particularly cameras in mobile phones means that people can take photos extremely surreptitiously and in situations where it is really an invasion of other people’s privacy. In that respect the use of such equipment is unnecessarily intrusive on the public. Not only that; it is intrusive in a way that is very demeaning. Therefore a new law such as this is justified to cater for that situation. 
Another question that I think we always need to ask ourselves about legislation is whether it is the minimum necessary to remedy the key problem. Very often we find ourselves passing law that penalises 99 percent of the law-abiding population in order to catch the 1 percent who are offenders. Again United Future thinks this bill takes a balanced approach and is framed in a way that will catch people who are offending without unnecessarily intruding on the 99 percent of people who are law-abiding. In particular some degree of purpose as far as the use of the film is concerned is an essential component of the law. There are situations where family members quite innocently end up taking family photos that show a toddler in a paddling pool without any clothes on or something of that nature. The last thing we want to do is to start curbing family photos and to make everyone in that sort of innocent situation a criminal. But it is important that we capture what is the increasing prevalence of pornographic imagery that is being used on the Internet and that is being sold and displayed without a person’s consent and in a way that is offensive and objectionable. 
The rationale that we should also look at when passing laws is that protecting one person’s rights will always restrict another person’s rights and extending one person’s rights will always restrict another person’s rights. From time to time when passing legislation we do not give enough credence to that maxim and we are happy to extend some people’s rights and therefore restrict others. One example of this that I have had very recently in the past few days came from a constituent who called me with a concern that Income Support had assessed him for the married rate of the benefit simply because he had become engaged. Society’s condoning of sexual relationships outside marriage and de facto relationships means that Income Support now seems to assume that if one is engaged one is in a de facto relationship or at least sleeping together. I think that is a very unfortunate consequence we have got to—that people who as in this case have got engaged and are intending not to sleep together until they get married are suddenly treated as if they are living together. That is one of the things that has happened as a consequence of the changes that have been made in our society. 
We also always need to ask whether we need legislation and whether it is unduly restrictive. In this case as I said it is not and therefore United Future members are keen to see this bill go ahead. No doubt at the select committee the bill will need some close examination and possibly some fine-tuning. I noted that for example the explanatory note refers to the police having an exemption if they unwittingly capture intimate images. It appears to me as I look at the bill that that word “unwittingly” is not included. The provision is broader in that it exempts the police from prosecution for capturing any images in the course of their duties. There is a question of how far we go in that instance. 
It is a little unfortunate that this bill has come before the House at a time when the police or at least some sectors of the police have been caught with a lot of pornographic images on their computers. I do not want to overstate the case because the vast majority of police are quite above reproach in that regard but a minority once again spoils it for the majority and the police have got themselves into a situation in which people are questioning their integrity. It is most unfortunate that we have that situation and then a bill suddenly arrives in Parliament that will deliberately license police to take covert filming. That is something we can cure only by restoring the reputation of the police and by the police becoming an agency that is beyond question in terms of its values of the way that officers uphold the laws of the land and the way that officers uphold the moral as well as legal expectations of society. 
I do not want to take up more time in talking about this bill. We look forward to dealing with it at the select committee and looking at the matter in detail then progressing the bill through the House. I am pleased to see that this issue is something that other countries are also covering. Of course it is an international problem and one that can really be addressed only on an international front. Once things go on a website a country has a certain lack of control. I am pleased that our law enforcement agencies are actually becoming more and more sophisticated at tracking down the source of Internet publications. 
By way of an aside I tell members that the police are currently trying to track down somebody who has been misusing my name and approaching people purportedly to try to raise money for United Future. The police are looking to find that person so that they can charge him or her with fraud offences and I hope they succeed. [ 
Interruption 
] There are not too many Smiths who are MPs for United Future I say to Mr Franks. 
We will support this bill and we look forward to its progress. 
Dr WAYNE MAPP (National—North Shore) 
: 
 As my very able colleague Dr Richard Worth indicated National supports this bill. But some interesting gaps have been raised by various speakers from across the House in this debate with regard to the role of security cameras and the like. I was thinking of some other gaps that occurred to me. It comes back to the exemptions in the bill all of which as noted are related to the role of State servants—the police and suchlike. What about the role of say newspapers—which for obvious reasons take an interest in public figures—that may photograph someone in an intimate situation with a prostitute under the age of 18 as opposed to one who is under 16? On the face of it that would seem to be a breach of the legislation. 
Stephen Franks 
: Graham Capill. 
Dr WAYNE MAPP 
: Yes. But arguably there is a public interest in precisely that kind of photograph because it would disclose a criminal offence and would probably indicate to the public that such a person should not hold his or her public position. On the face of it this legislation would appear to make that activity illegal. I do not believe that that can actually be the intention of the Government. One would think that there would at least be some form of qualified exemption for that particular role provided that the photos were not prurient. 
As has been well acknowledged those are things that can be fixed up by the select committee. But when a Law Commission report has driven this legislation when there is the whole array and apparatus of the Ministry of Justice and the many tens of millions of dollars spent on all the experts in that organisation and when there is a ministerial office staffed with dozens of people— 
Stephen Franks 
: Mostly in public relations. 
Dr WAYNE MAPP 
: One can only assume as Mr Franks indicates that those people are all masters of spin. One would expect those kinds of issues to be brought out in the legislation because they are not terribly difficult to think of. It is not as though one has to go away and think deeply about the legislation or to do vast amounts of reading of international reports and so forth to ask what the potential problems could be here. What are the areas that we expect at least in the explanatory note of the bill to be acknowledged? It is completely silent on them. The Government has done Parliament and the select committee a bit of a disservice because it has given us ill-formed legislation and has essentially said that we should fix it—as we will have to. As people are aware every party in this House will support this legislation. It is unfortunate that it could not have been done better. 
One of the interesting issues in a part of the legislation that seems to be reasonably well drawn up is the distinction between intimate activity where privacy is an expected and a natural right and those activities that are personal and have a degree of intimacy but that are nevertheless perhaps not expected to be private. One thinks of the famous French photograph taken in 1950 known as  
Kiss at City Hall 
. That was clearly an intimate personal activity that would not infringe this legislation nor should it. Ironically not so many years ago the anonymous people in that photograph—because the photographer did not know who they were—sought to claim some 50 years after the event the reflected fame of being the subjects of the photograph and sought compensation or at least a degree of recognition. Those kinds of photographs do become iconic a reflection of the joie de vivre of life if you will. It is important that the legislation strikes the right balance and on balance it has at least understood that particular dividing line. 
A number of people have raised an interesting point about parents and babies. I think the legislation protects parents in that situation because it does after all refer to the expectations of privacy. I presume that if parents are taking a photograph of their baby they do not intend to have privacy for that photograph within the family. Clearly there would be an expectation of privacy should such a photograph be generally distributed in a manner that the parents did not expect. 
Obviously we support the legislation. It is driven as much as anything by the terrible intrusion on the privacy of and damage caused to Princess Diana some years ago by some very inappropriate and unfortunate photographs. Unfortunately they were taken by one of our own countrymen in a way that was really quite reprehensible and he was properly castigated for that activity. I believe that that activity would now be illegal under this legislation. I would like to know whether the Government is of the view that such photographs should be illegal. That is a question that perhaps the next Government speaker could answer—whether he or she feels that the legislation properly and adequately addresses that matter. 
In conclusion I say that National supports this bill. A number of deficiencies have been pointed out and the bill in particular addresses the role of newspapers which from time to time do protect the public good and expose the depredations of public figures. We would not want that function to be fundamentally restricted by legislation wherein we simply had not thought of the ramifications. I imagine that the select committee will properly and carefully consider all those issues. I think that this is one of those occasions when committee members should read the first reading debate because the debate across the House has picked up on a number of issues that will be of importance to the committee in its considerations. This legislation is important. One may think that it is being brought in at this stage primarily because the Government wants to appear to be doing something. It has taken the Government an awfully long time to do it I have to say and one trusts that the select committee will do its job well. 
Bill read a first time. 
Bill referred to the Government Administration Committee.referred to Government Administration Committee