Curran Clare: Harmful Digital Communications Bill — In CommitteeText is incorporated into the Bound VolumeCurran Clare: Harmful Digital Communications Bill — In Committee[Sitting date: 23 June 2015. Volume:706;Page:4665. Text is incorporated into the Bound Volume.]CLARE CURRAN (Labour—Dunedin South):Part 2 of this bill is essentially updating other pieces of legislation. It concerns amendments to other Acts concerning the use of digital communications. They include the Crimes Act the Harassment Act the Human Rights Act and the Privacy Act.The first point that I would like to make is to thank the Minister of Justice who gave us 10 minutes of her time earlier during the debate on Part 1 to actually get up and give an explanation as to why she had introduced such a large set of amendments. The amendments she has introduced in Part 2 are essentially just additions—mainly technical points around those four Acts that I just mentioned. One of the points I would like to make is that one of those Acts the Privacy Act—what would be really good is if the Minister followed this piece of legislation before the Committee with the introduction of the substantive changes to the Privacy Act itself that have been promised to this House for well over a year following a Law Commission report 4 years ago which would make real changes to balance up the privacy provisions for New Zealanders that have been lacking which the Law Commission recommended that we act quickly on.Instead what we have got here is I think we would say a worthy part of the bill and I do not think there was ever a great deal of dissension at the select committee on the need for these four pieces of legislation to be updated because they needed to be brought into the digital world to include provisions around electronic communication and essentially to be modernised. The argument that Labour used at the Justice and Electoral Committee—and it has been supported out there in the community particularly by the legal community—is that the updating of these four pieces of legislation could have been sufficient to address this issue rather than introducing a new criminal provision as we have discussed in Part 1.Updating the Crimes Act updating the Harassment Act updating the Human Rights Act and updating the Privacy Act would involve dealing with existing legislation that has been well tested and well utilised. Yes they need to be modernised but they reflect what happens in the physical world and the updating of them enables them to be also relevant in the cyber-world and the digital environment as is rightly so. But what is added to this piece of legislation is a new criminal provision that is active in only the cyber-world. You could call it groundbreaking or precedent setting and what it means is that acts of causing serious emotional distress that occur in the digital environment can be prosecuted in only the cyber-environment under that provision. They cannot be prosecuted in the physical environment so even if there is an act of serious emotional distress that includes a physical act then it is not relevant according to that particular provision.We feel very strongly that the updating of these four pieces of legislation is necessary because this is an important part of the move towards trying to be more effective in the cyber-environment. But alongside this goes an educative role particularly of the New Zealand Police which is the agency that does the prosecuting as to how effectively to use them. It is our concern that this is going to be missing in the equation. It has already been mentioned in previous speeches that the police currently have the discretion about whether they will prosecute. There have been numerous cases that have been before the public’s attention about where there has been cyber-bullying or cyber-harm undertaken and where there were already provisions that could have been utilised but were not because there had not been the education of our police force around how to do that. I think there have been a number of occasions when that has happened in recent months and certainly in the last couple of years.Our fear is that because of this new criminal provision in the cyber-environment this bill will create pressure on the police to prosecute children in a court environment when the police may not have had the training or the systems to decide whether or not that is appropriate. That is a real concern and I think that one of the tests for this bill is just how well the educative function goes with it as to what is appropriate to take into the court environment and what is appropriate to take through the approved agency environment.There are many different kinds of cyber-harm that can be caused and when you are using legislation that already is proven and where there is a lot of case law in place such as the Harassment Act and such as the Crimes Act then our contention is that we should be moving more in that direction rather than using a new provision that has been set up just for the cyber-environment and that has such a broad definition of harm attached to it and where there are so many questions that remain around it as to whether it will be effective.Labour has produced a typescript amendment in this part under the Harassment Act which I do not have in front of me which is I think at section 17 of the existing Harassment Act which is essentially to ensure that where there is material in the electronic communications that are being used and may be construed as being harassment where they do not break the law that measure cannot therefore be used. The amendment is basically taking a measure that exists in the Harassment Act now and ensuring that that is updated to include the cyber-environment as well. So we consider that that is a practical measure. We hope that there will be support across the Committee for that.As we have said in previous speeches on this bill Labour is reluctantly supporting this bill through the Committee stage because we know that we need to take measures in the cyber-environment. We believe that the approved agency route is a sensible route to go down although we have concerns around the resourcing of that and whether it will be appropriately resourced. We have got serious concerns about other parts of the bill but we do think that the updating in Part 2 of the bill of these four pieces of legislation is sensible and is probably overdue.However our concerns are such that we do believe that there needs to be a review of this legislation after a period of time to ensure that it is actually effective and that our fears have not come to bear. So Labour is putting on the record today that we will be undertaking a review of this legislation and that will be our position.