Franks Stephen: Films Videos and Publications Classification  Amendment Bill — Second Reading 
Franks Stephen: Films Videos and Publications Classification  Amendment Bill — Second Reading 
[Volume:623;Page:18436] 
STEPHEN FRANKS (ACT) 
: 
 ACT will support the increase in penalties in this bill for the obvious reason that we think most penalties in New Zealand have become too short too small and too trivial by half or more. But I am not sure whether we can support this bill. The reason for that is that the bill is I think quite a sinister piece of deception in one respect. I believe that this bill achieves the objective that the Government Administration Committee tried to achieve with its appalling report a couple of years ago. It was of such a poor grade intellectually that the Minister of Justice could not proceed—he could not be seen to implement it. But the bill achieves that objective covertly and I say that because this bill I think sets out to reverse the effect of the Court of Appeal’s decision in the Living Word Distributors video case. 
The bill’s commentary states that the bill does not really do that but just clarifies the situation. It states that the bill preserves the gateway role or the gateway notion of the censor’s role. In fact when we see what it is doing purportedly to protect children we find that two new sections are inserted that completely bypass the gateway provision. A publication may be age restricted if it is likely to be injurious to the public good. The definition of what the legislation can ban or ban through an age restriction includes material that describes physical conduct of a degrading dehumanising or demeaning nature that may encourage people to treat themselves or others as degraded dehumanised or demeaned. Well that is a description of what the chief censor said the Living Word Distributors video did. The Court of Appeal did not agree with that or it felt that free speech entitled Christians or any other group that had a strong view about a matter to import a video that had some boring-looking talking heads in that case describing homosexuality as disgusting. 
This bill reverses that decision and it does so by wrapping up in a whole lot of other words some words that the Chief Censor can then use to go back on something like the Living Word Distributors video decision and ignore the gateway. We see in new section 3D inserted by clause 4A that the new powers are not limited by the sections that the Court of Appeal used to throw out the censor’s decision. I think that is important. I am fascinated to see that the Government has been so blatant as to put in new clause 4B which provides that the censor can even go backwards and retrospectively apply the new powers. In the course of the Committee stage I would like to hear a categorical assurance that that is not the intention and to consider amendments designed to make sure that it cannot happen. As a start the clause that bypasses the protective tests for free speech that the Court of Appeal was able to use should be removed. 
There is another reason why I do not feel that ACT should be party to this bill which is that it is just cynical. It is law being used for propaganda—law as theatre law as slogans and law as camouflage. I think that Judith Collins got on to it but she said that she would suppress her reservations and vote for the bill because it made threats against paedophiles or people who showed an interest in child pornography. She needs to look again because it does not matter whether the penalty is $5000 or $10000 or 2 years or 5 years in prison. What really dictates the penalty is the climate that the Government creates around an offence. Let us look at the case of Te Kaha to see an instance of how irrelevant a maximum penalty is. There was the possibility of a $250000 fine of confiscation of the gear and from memory I think of 4 years in jail although I may be wrong about that. What did Te Kaha get? For a cold-blooded commercially motivated offence of taking 100 kilos of shucked paua in a scheme that is happening all over the country—and it is a major problem—Te Kaha was sentenced to go out to corrupt a few more kids. He was given community work. The Government will make sure that his community work is counselling kids. 
What use is all this legal drivel when we have a Government that actually thinks it is OK for kids to be out there as prostitutes and will not allow the police to ask their age a Government that does not care that the Aussie police are about to make a swoop on a paedophile network that will then warn all the New Zealand members and a Government that we have to suspect must have not wanted to see that swoop made? I suspect there will be some high-profile people on that list. I think this Government has probably deliberately fluffed it because it did not want the embarrassment of some of its ilk ending up as victims of that swoop. This kind of bill that the Government wants to see rushed through the House on a wave of emotion is dangerous. It is dangerous because it is so easily misused. The honourable member Dianne Yates gave us a good idea of what this bill is really about when she immediately turned in her speech to describe the hate speech objectives. The Government wants to be able to ban free speech that is offensive to it and its mates. 
We already have an Act. I have the Act here and the gateway provision is pretty well framed. It does not allow for example an innocent family that happens to have pictures of its kids playing in a swimming pool to be caught because it has some very sensible tests that require there to be an overall context a volume an objective and a promoting effect. That section which protects our innocent family Dianne Yates’ proposals will now avoid. Section 3 of the Act is to be avoided under the new provisions of this legislation. Section 3 protects innocent people from being caught up in the net that we all want to see cast over those who are truly offenders: those who use pornographic material abuse children to generate that material and trade in that material which of course we all want to see stopped. But the existing law covers that so Minister Goff has introduced the vague idea that the technology has got ahead of us. We have instead seen a set of provisions that could one day be used to simply suppress political opinion the Government does not like on the grounds set out in this bill that it may be harmful. 
It is interesting that the age restrictions can be promoted and unless I have missed this in the Act the Government could set an age restriction that no one under 60 is allowed to read something. I am not sure whether that is the case but it appears to me that would be open to the Government. The Government may say that that would be ridiculous but who would ever have thought that a group of earnest Christians who were eager to persuade their children that they should not become homosexual would one day become the victims of a film censor? Who would have thought that a party like United Future which purports to stand for those people would end up wanting to vote for a bill that allows the censor to do just that? I think it is hilarious the things that United Future has voted for. Of course it has just voted to help the Government to make sure it keeps on looting the excise tax. It is minor that United Future now says that it will vote in favour of something that gives the censor the power to attack its own supporters. 
If one looks at the definition of offensive language one can see that it is language that is offensive to the public in general. Most new ideas at some stage have been offensive to the public in general. Most reformers have been vilified at some stage. Most reformers have had newspaper editorials tell them that they are raising a proper purpose but that the way they are doing it is offensive and that they should not be allowed to carry on. The whole purpose of free speech is not to protect language that no one finds offensive; the whole purpose of free speech is precisely to make sure that people can offend. There is no other kind of language that people bother to try to suppress. That is why this bill is dangerous I suspect. This is a cunning and deliberate scheme to tie together increased penalties at the same time as pushing through the potentially dangerous stuff.