Ardern Jacinda: Harmful Digital Communications Bill — In CommitteeText is incorporated into the Bound VolumeArdern Jacinda: Harmful Digital Communications Bill — In Committee[Sitting date: 23 June 2015. Volume:706;Page:4667. Text is incorporated into the Bound Volume.]JACINDA ARDERN (Labour):I want to thank my colleague Clare Curran for setting out so clearly at each stage of this bill Labour’s position on this piece of legislation. There are more frequently than I would like occasions in the House where we are presented with what I would term to be bad law addressing critical issues. By “critical issues” I mean issues that become highly politicised because there is a real drive from the community for politicians to respond to issues where harm can be done. This is an example of an area like that. Harm can be and has been done in this space. There is a need to respond but our concern is that this response is not the right one yet anyone who stands and opposes the bill then becomes wedged in as not being concerned about the issue. That is almost the worst of all scenarios. I would wager that we will be back here debating something in this space again. There will be some misinterpretation of the law some 14-year-old sentenced to a term of imprisonment—something that will lead us to reconsider this piece of legislation. You can put that on iPredict now.When it comes to principles of justice in coming to Part 2—because we are in this part debating some significant pieces of legislation that already exist primarily around the Harassment Act and there are amendments to the Crimes Act 1961—they are essentially amendments to existing pieces of law. I think it is important when considering amendments to such significant and well-established pieces of law that we consider a couple of really important justice principles: are we making consistent legislation and are we making clear legislation? My concern is that with the regime that this bill sets up by amending existing parts of the law alongside setting up a new criminal regime things will actually become confused and we may even have a two-tier system.For example it is my understanding that the new penalties that were debated in Part 1—the 2-year maximum prison sentence and the fine of up to $50000–have the ability to apply to anyone aged 14 and above. That is my understanding of how the law will be potentially applied. And if that is not the case then I would have thought the Minister would not have a problem with Labour’s amendment confirming that actually it should sit at the age of criminal responsibility which in New Zealand is 17. Given that that was voted down let us assume therefore that that regime can apply to a child as young as 14. Let us assume that. Can we therefore assume that there is an assumption around the existing legislation that this bill subsequently amends—the Crimes Act the Summary Offences Act and the Harassment Act—that the same will apply? Is that the assumption? If so some clarity on that would be incredibly useful.The reason Labour is focused on the age of criminal responsibility in how this bill will apply is that that is where the evidence base suggests that actually applying criminal regimes that sit around convictions and sentencing is not a helpful way to deal with children and young people. In fact I probably do not need to present evidence. That seems on the face of it to be a natural assumption. If a child a 14-year-old—and I call them a child because they are—posts something on Facebook that could be deemed under this law to be in contravention of what this law sets out do we seriously think a prison sentence is the best way to deal with that? I mean really? Yet that is what we are setting out in this legislation. Why is it that even this Government has focused on using diversion law community-based sentencing law and restorative justice? It has done it quietly but it is doing it. It is doing it because it works. It is a better way to address criminal offending in this space than what this bill is presenting.This bill is presenting a political solution not a practical solution. It is also probably going down the track of producing an easier one. For instance making an amendment to the Harassment Act as Part 2 does which in clause 26 then amends section 3 of the Harassment Act: “For the purposes of this Act a person also harasses another person if—(a) he or she engages in a pattern of behaviour that is directed against that other person; and (b) that pattern of behaviour includes doing any specified act to the other person that is one continuing act carried out over any period.” By definition that is harassment. By definition that is harassment and that is the reason why the regulatory impact statement specifically says that it was probably unnecessary to make an amendment to those Acts in order for cyber-bullying as it has been termed here to be covered. So it is pretty much a superficial amendment that again speaks to the notion of this being a political response rather than a practical response.But it does go on. There is something in the amendment to the Harassment Act that is specific to the issue of cyber-bullying as it were. New clause 3(4) says: “For the purposes of subsection (3) ‘continuing act’ includes a specified act done on any one occasion that continues to have effect over a protracted period (for example where offensive material about a person is placed in any electronic media and remains there for a protracted period).” That is a specific example there—specific to electronic mechanisms for harassment—and again it is probably already covered by the legislation. It has been written there in black and white to make it really specific but I would have thought that that was unnecessary. However by putting in that level of specificity has it now meant that we have created a lower threshold for electronic means of harassment than for any other form? I do not think that is the kind of consequence that we wanted from a bill like this but it may well be what we have inadvertently done.So again if the mechanisms already existed why would we have focused on that track? Well because the alternative to Part 2 is actually probably not legislative at all—make an assumption that actually we are covered get the legal advice that we are covered with the existing mechanisms set out under the Crimes Act and then move on to what would actually make a difference. For instance was the Children’s Commissioner engaged at any point in this legislation to talk to young people and children about what would make a difference in their space and in their world on this issue? I bet if you went to a group of children and said: “Would creating new offences under the Harassment Act and creating a maximum 2-year penalty or $50000 fine stop cyber-bullying in your world do you think?” I would wager they would probably say: “Absolutely not.” And I would wager that if you actually asked them what would make a difference they would focus on the harm done in peer groups because that is where the harm is primarily done.If you are focusing on peer groups and harm within peer groups—[Interruption] thank you Minister Goodhew for rolling your eyes while you are in the chair; I look forward to your wholehearted contribution to this debate which so far has been somewhat limited—then you probably would have gone to the Ministry of Education and asked what it does in this space already and what it does with bullying within the school environment. We are essentially mirroring that at an electronic level and trying to tackle that same issue but in a different medium. I am sure that schools probably would have come back to the Ministry of Education with some ideas that were very much based on principles about restorative justice within that peer group and environment. Instead we do what Parliament always does. We respond to pressure by slapping in a law and assuming that everything will be fixed because of it. We dust off our hands and we walk away. That is a cop-out on this issue. It is bigger than amendments to the Harassment Act. It is bigger than amendments to the Crimes Act. I know—Hon Paula Bennett: Government can solve everything!JACINDA ARDERN: I know that Paula Bennett knows that. No the Government cannot solve everything and yet it is pretending it can with this piece of legislation. It is pretending it can with law alone and we know—Hon Paula Bennett: What a load of rubbish.JACINDA ARDERN: —it is more complicated than that. I would like it be on record that the Minister just said that that contribution was a load of rubbish. I have no doubt that even when this law has passed we will still be debating this issue. We will still be debating this issue once this law has passed.So I want to just recap. I would really like to see the Minister respond to some of the questions around the age of responsibility. I would not mind hearing her comment on if this is the right thing to do why the UK looked at this issue and not do it. Why did the UK when it looked at this issue—because we have seen some of the dreadful cases in the UK—avoid criminalisation? Instead it went down the path of greater education and using existing law with serious threats by adults that needed to be dealt with. It is the same with Australia. This bill focuses on what to do when harm has already happened instead of trying to prevent harm particularly amongst young people and children which would have been a much better approach.