Goff Phil: Films Videos and Publications Classification  Amendment Bill — In Committee 
Goff Phil: Films Videos and Publications Classification  Amendment Bill — In Committee 
[Volume:623;Page:18631] 
Hon PHIL GOFF (Minister of Justice) 
: 
 I would like to address a number of issues that have been raised in Committee. First of all I welcome the support from around the Chamber for this legislation which produces much tougher penalties for those people who deal in the trade of child pornography. Whatever our arguments about freedom of expression there is no one in this Chamber who would for a moment justify the use of young children in sexual abuse cases for the gratification of people who seem to enjoy that sort of thing. For a long time in this country we have had legislation that provides for a penalty of just 1 year for producing trading in or distributing pornography. [ 
Interruption 
] The member has had his chance to speak. If he would just listen politely for a moment he will have another chance. 
If I could pick up Shane Ardern’s point I think it is quite right that technology has totally changed the nature of child pornography and the menace it poses to our society and to the children who are victims of it. Instead of having the stereotypical man in a gaberdine raincoat going down to a seedy shop and trading images in ones or in tens we are now having through the Internet the trading of images that run to tens of thousands. Clearly the message has to go through that the penalties are tough for that sort of thing; that we will as a society protect our children; and that the chances of being caught are high. 
I say to Deborah Coddington what an absolute nonsense that  
Time 
 magazine article is and I think she may have made the same comment. Denise Ritchie certainly regarded it as a bit of Kiwi bashing and sensationalism. We have in this country one of the best enforcement agencies in the world in the Department of Internal Affairs and the job that it does. Any member who does not understand the job the department does ought to go down and look at what it is doing the sophistication of its operation and the success rate in getting prosecutions. He or she would then see that some half-baked Aussie journalist—who knows nothing about New Zealand—claiming that we are a haven for child pornography could not be further from the truth and that is a fact. 
What we have in this legislation is a tenfold increase in the penalty for those who produce trade in or distribute child pornography. I think that is appropriate and in line with the penalties that exist in other like-minded countries. What we had was quite a dramatic increase too in the area of possession of pornography. Under the current law as members will be aware there is no prison sentence for possession of pornography. The legislation has been in place since 1993 and that legislation frankly has been inadequate. The original bill as approved by the Government Administration Committee proposed a sentence of 2 years for knowingly possessing child pornography. It was brought to my attention I have to say by Denise Ritchie that changes are occurring as we speak to the legislation and to the penalties for possession in particular in Australia. For a couple of years Canada and the UK have had a penalty of 5 years for the intentional possession of pornography. In Australia the norm tended to be a penalty of around 1 to 2 years but that has now changed in a number of states—Western Australia and Queensland I think are at 5 years—and three states are in the process of moving their penalties. New South Wales has legislation before its Parliament right now. 
It made sense to me and I think it would have made sense to the select committee in retrospect that as that was the norm for the penalties for possessing child pornography in an area where those images move across national boundaries we needed to be in line with those other countries. I willingly propose that change. I hope we will have support across the Chamber and indeed I hope we will have support from the Green Party I say to Keith Locke because 5 years is the maximum penalty. It will not be applied in every case. The Department of Internal Affairs for a start uses its discretion in terms of who it decides to prosecute. So it prosecutes those who are into pornography in a big way. It does not take before the court the curious teenager who flicks on the screen and sees some of this stuff. Yes those people will be pulled up and shown the error of their ways but they will not be put in prison for 5 years. That privilege will be given to those people who are at the worst end of this offending. So I think that this bill and the two Supplementary Order Papers—there are two Supplementary Order Papers; Supplementary Order Paper 325 is largely a technical Supplementary Order Paper—and particularly Supplementary Order Paper 326 with regard to possession make sensible changes. 
A question has been raised about clause 4 regarding images of nude children. I think a genuine concern is raised by people concerning the graphic image of that young girl in Viet Nam who had been napalmed and who was nude as to whether she would be covered. The answer is no—quite clearly no—in the way this legislation is drafted. Will we see a Renoir of a child banned under this legislation? Of course not. 
Keith Locke 
: Why? 
Hon PHIL GOFF 
: Well if the member wants to listen for a moment I will explain. He should show me that courtesy for just a couple of minutes longer. 
 The bill clarifies that images of nude children that are reasonably capable of being regarded as sexual in nature are treated as dealing with “a matter such as sex.” That is one of the gateway criteria for being covered and potentially regarded as offensive and prohibited material. The bill does not change the existing legal standard for prohibition. What it does is to clarify that certain images of children are to be regarded as “a matter such as sex” for the purpose of the subject matter gateway in section 3(1). This enables the classification office to consider whether they should be restricted or prohibited. Under the existing legal standards the classification officer may restrict or prohibit them if they deal with a subject matter—and Sandra Goudie might like to listen to this—in such a manner that the availability of the publication is likely to be injurious to the public good. 
Secondly a publication must be prohibited if it promotes or supports or tends to promote or support the exploitation of children or young persons or both for sexual purposes. The Government Administration Committee heard that one of the favourite tricks of the child pornographer is to send out images of naked children for sexual gratification. We want to be able to clamp down on that practice. We do not want to take into this net examples of pictures of children who are nude that are not presented for sexual purposes and for sexual gratification. In fact what this legislation does is to clarify what the Court of Appeal decided in the second Moonen case. This provision endorses the implicit finding of the Court of Appeal and removes that possible doubt. This is not something that will be misused for that purpose and experience with this legislation will show that. I respect the work that the select committee did on a bipartisan basis to reach this conclusion and to present this report. 
I come now to Stephen Franks’ amendments. I have read his press statement which he kindly supplied me with. But I have to say that it is an absolute nonsense to say as he says here that this is smoothing the path for Labour to pass hate-speech laws later this year. I made the explicit decision not to incorporate hate-speech laws in this legislation and the committee agreed. The committee comprising National and Labour agreed on a bipartisan basis because to give respect to that committee it did not do as the member has been trying to do: play politics with it. Hate speech is an area that should be looked at in its own right. It is not something that will be done by the film censor and it is something that I have explicitly excluded from this legislation. This set of amendments is to counter a situation that is a figment of that member’s imagination. There is no intention to do what he claims in his press statement this legislation is trying to do and I deplore the fact that he is trying to wring some miserable politics out of something that had no partisanship in it in the first place.