Curran Clare: Objectionable Publications and Indecency Legislation Bill — In CommitteeText is incorporated into the Bound VolumeCurran Clare: Objectionable Publications and Indecency Legislation Bill — In Committee[Sitting date: 31 March 2015. Volume:704;Page:2769. Text is incorporated into the Bound Volume.]CLARE CURRAN (Labour—Dunedin South): There are a number of pieces of Part 2 that I would like to speak to but I would like to turn my attention first to Supplementary Order Paper 67 tabled by the Minister of Justice to which I am hoping the Minister will speak. Supplementary Order Paper 67 adds new clause 14 and new Subparts 2 and 3 to Part 2. I am hoping the Minister will speak to this because this is a completely new clause in the bill and there has been no ability for there to be a debate or a discussion at a select committee.The Supplementary Order Paper creates a completely new part to the bill. It ensures that New Zealanders who assist foreigners to commit sexual acts against children overseas commit an offence under New Zealand’s law. This amendment as the Minister has said in the explanatory note of her Supplementary Order Paper is in response to a recent Supreme Court decision that was given in 2014. I cannot find the exact date but from memory I think it was in August 2014. The ruling in LM v R is that a New Zealander who assists a non - New Zealander to engage in sexual conduct with a child overseas would not be guilty of an offence under New Zealand law. This Supplementary Order Paper as I understand it is meant to address that. If the principal offender is neither a New Zealand citizen nor ordinarily resident in New Zealand they will not have committed an offence under New Zealand law. Therefore the court is unable to convict an assisting party because there is no offending to be party to.So specifically the amendment provides for party liability where the principal offender is a foreigner who has not committed an offence under New Zealand law and it provides for accessory liability for assistance given by a New Zealander to a foreigner after the offence has been committed. I have done the Minister’s job for her because I have just read out the amendment to you. To all intents and purposes this looks as if it is an amendment that has been raised in a previous case as another gap in the existing law and it is seeking to address that gap.My question to the Minister—and I am hoping that in good faith she will be able to address it—is whether there is precedent for this what the context for it is where the recommendations came from and what ability she has had to receive any reports on it. I think that when you put a completely new amendment into a piece of legislation at the Committee stage then you should be prepared as the Minister to get to your feet and actually address the context for it so that we are not just sliding something new into law that has had no ability to be tested that has had no ability to have officials provide advice around it and that has had no ability for there to be any discussion through the select committee process. So I am hoping that that is what we will hear from the Minister on during the debate on this part of the bill.I also want to address clause 13 in Part 2 which inserts new section 124A “Indecent communication with young person under 16” into the Crimes Act 1961. This creates a new offence under that Act of indecent communication with a young person—anyone under the age of 16. This new offence also applies where the person charged communicates indecently with a police constable believing the police constable to be a young person. I think we all know that this basically occurs predominantly as I would understand it in an online environment where there is an attempt to try to entrap the perpetrator into revealing their true purpose which is to commit an offence. This falls into the category of the gaps in the law that this bill is trying to address which we support.The submitters who submitted to the Justice and Electoral Committee all seemed to support the creation of this offence and seemed to consider it to be a positive step towards curbing the culture of child exploitation through the internet. They stated that it was worded in a way that allowed for new technologies in the form of social media to be included as they appear and I think that is very sensible for this legislation because it may very well be that new forms of media that we do not even know about yet will emerge where these kinds of offences will be perpetrated and young people will be preyed upon by the abusers. I think it is critical that we are writing legislation that can provide some kind of window to the future and that it is not always retrospective. I applaud that and think that it is important.One of the submitters the Legislation Advisory Committee agreed that there was a gap in the law that needed to be remedied although it considered that the explanatory note that described the gap as being between objectionable publications offences and the sexual grooming offence was inaccurate. The Legislation Advisory Committee said that it did not think it was clear that objectionable publication offences applied only if the offender makes a record of the communication as “distributes” in section 123 of the Films Videos and Publications Classification Act appears to capture the same action required in the proposed new offence.The comment was that there was a defence available where reasonable steps are taken to ensure that the young person is over the age of 16. I think the officials did go to some steps to reassure the committee. Even though I did not sit on the committee it does appear to me that there was an attempt to ensure that—although a legislative gap does exist where no record is made of an indecent communication because section 123 of the Films Videos and Publications Classification Act relates only to publications and the definition of “publication” in section 2 of that Act is such that in order to establish an offence against that section a record of the communication must be deliberately kept by the offender. I think that the discussion in the select committee—which recommends inserting into the Crimes Act new section 124A(3) which provides a defence where before making the indecent communication the person charged took “reasonable steps” to find out whether the young person was 16 years old or older and “believed on reasonable grounds” that they were that age at the time of communication. That is where the defence lies.So certainly this section of the Act really goes quite a long way to addressing the entrapment concerns that submitters had where the person charged communicated indecently with a police constable believing the constable to be a young person. I think that is the issue and concerns were raised at the select committee as to what extent the police could undergo that investigation with the person on the other end not knowing that they were being entrapped but where they did not make an attempt to find out whether the person was under 16 or not. I am reasonably comfortable that where that ended up is probably in the right place.