Adams Amy: Harmful Digital Communications Bill — In CommitteeText is incorporated into the Bound VolumeAdams Amy: Harmful Digital Communications Bill — In Committee[Sitting date: 23 June 2015. Volume:706;Page:4649. Text is incorporated into the Bound Volume.]Hon AMY ADAMS (Minister of Justice):I do want to take a call on Part 1 which is clearly the most significant part of the bill and talk a little bit about where we are and Supplementary Order Paper 91 which I am tabling today to pick up on some of the issues that have been raised since the bill was last before the House which I think did make some very valid points that we wanted to address. I want to thank members across the House who have worked constructively with me on some of the issues that they have seen with the bill because what I do accept is that this is a new regime. I make no apology for that because we are dealing with new and insidious threats that simply were not around in years gone by and that I think it is absolutely our responsibility to respond to and provide for so that people in New Zealand are properly protected.I think one of the matters that we are all really agreed on is that there is real significant harm that can be caused through digital means. It is a new threat pattern and a very real and very serious threat pattern that this House has to respond to. I was very much guided by the report of the Law Commission in 2012 on this area. For anyone who has not read that piece of work and who is following this debate with interest I really do encourage them to go back to the Law Commission’s report which noted that about 20 percent of New Zealanders up to the age of 30 are suffering from this. So it is not a small fringe group and I think we can probably safely say that that number is likely to grow as digital means of communication become even more prevalent than they are now.One of the things that I do want to take a little bit of issue with though in terms of how the debate is progressing so far is that the majority of this framework is about education and civil action. A very very small number of cases are ever likely to trigger the requirement for the ultimate criminal sanction that is in it—and I will come back to talk about that—but I am absolutely and strongly of the view that you do need to have the option of a criminal sanction for the most severe and the most vile and reprehensible and egregious types of conduct that we can see and that frankly we have seen already in New Zealand and around the world. But actually the largest part of this framework is around setting up an approved agency that will work on education with the community and stakeholder groups and that will focus on mediation and a mediated outcome is likely to be the most common response and resolution of issues raised.Where I agree with Clare Curran the member who has just resumed her seat is that it is critical that we make a very clever and careful choice as to what that agency is and that it is appropriately resourced and tasked with working in the community because it will have a role that is a very high-trust role and that will require the community to understand that when it is talking it is doing so from a sensible and balanced position of wanting to enhance and support digital communications but educating people around first the harm that can be caused and second the societally accepted limits of how that conversation and that communication can work. Actually you can cause real significant harm to people through what can be the actions of a few seconds. So education is the first and most important part of it.The second step in the framework is the mediation of complaints that arise. Anyone we talk to who has worked in this space is very clear that the vast majority of issues will be resolved through mediated outcomes with the help of the approved agency.The next level of severity then is if that does not work and only if a complaint has been made to the approved agency and the approved agency has had time to work through it and has tried to resolve the complaint in a mediated way there is the application to the court for civil orders. Civil orders are when in spite of the best efforts of the parties involved the content hosts and the approved agency a resolution cannot be reached. An approved agency cannot order anything and that is appropriate for an agency of that nature but the court will have the ability to use a civil order to seek the material’s removal where that is appropriate. And that is critical—that is why it has to go to the court because we are dealing with constraints on how people communicate. For all of the scare stories that go around about some trivial little thing that someone gets miffed at well the trivial little things that someone gets miffed at are not going to reach the standard of the sort of breach of the communication principle that is going to warrant the court making a civil order taking it down. So I think that has to be borne in mind.At the most serious level of the framework there is a criminal offence and as I have said I do not make any apology for the fact that it is there. I do not accept first of all that it is inconsistent with what is happening internationally. We know actually that Australia has had an equivalent offence for more than 10 years and that has been operating well for it and it does not need to replicate it because it already has it. We know that the UK for example has also just passed a new offence to deal with revenge porn. It had some offences already and its offences were not crafted broadly enough to deal with revenge porn so it has also just legislated to create a criminal offence dealing with those sorts of matters. So I certainly do not accept that it is moving in a direction that is inconsistent with international norms.The other point that I wanted to address is this fallacy that the bill will criminalise children. First of all children—being those under 14 in our law—are not criminally liable under this offence in any way shape or form. No child under 14 can be criminalised for this offence. Young people those between 14 and 16 are able to be prosecuted under this law if it meets those most serious tests but—and this is a very important but—any young person who is caught up through this would go through our Youth Court processes and that is a significant difference. It is not a case of going off to court in handcuffs and being arrested.Our Youth Court processes first of all actually have a very well-established and incredibly well-respected process for dealing with young people through family group conferences and restorative-type practices to ensure that they are not charged if that can be at all avoided. If a better resolution can be found that is always sought and if they do need to go through to a court hearing then the Youth Courts are very well-designed to ensure that they get that balance right between a young person having to take responsibility and accountability for their actions and having to make some sort of retribution or make an apology as is appropriate to the victim. The Youth Courts are very very well versed and I have total confidence in their being able to properly handle any young person who comes before them in that matter.Can I just talk briefly about some of the other issues in the Supplementary Order Paper that have been referenced by a couple of speakers. I want to acknowledge and thank Tracey Martin from New Zealand First who has worked very constructively with us around the penalties that relate to that offence provision to ensure that it is very clear that there is an infringement fine option available which was sort of there by operation of law but I think Ms Martin made a good point that it is much better to make it very clear and specific that as well as the imprisonment option a fine option is absolutely appropriate in many cases and we have now explicitly provided for that. I think we have got those levels about right so that where it is absolutely necessary that the level of the fine can be set at a high enough severity it is there but equally this provision allows the court full discretion to go with a lower level of fine when that is appropriate.The other change again is really a clarification but I think a very useful one around the safe harbour provisions. There was concern expressed from some quarters that in fact the safe harbour provision—which I want to acknowledge the select committee for because I know it worked very hard to make sure it had that balance right between giving the poster of the information enough time to say: “Well actually no there’s nothing wrong with that. I should be allowed to communicate in that way.” and equally not leaving it so long that revictimisation occurs. The select committee settled on 48 hours being the appropriate period of time and I certainly did not want to interfere with that because I think it went through a very good robust process. But we did want to make it absolutely explicit that there was nothing in that that in any way prevented any content host acting under their own terms and conditions or their own views of what was appropriate for them as a content host to either take the information down immediately—if that was what they would do today if someone complained—if they thought that was appropriate or equally not to take it down at all. So if someone complains on the very trivial basis of saying: “Well someone’s put up a photo of me and I’ve got my eyes shut and I don’t like it.”—who knows—and there is some triviality it is absolutely open to the content host to say: “Well look I’m not taking any action on that. That’s a nonsense.” as they would now.So I think it is important that the bill is absolutely clear that they have the option to act immediately and remove the post and that they have the option to take no action if that is appropriate. But if they want to follow the safe harbour provision in the bill then that is very clearly set out and as I have said I think that is a robust position in terms of where the select committee has got to.So in respect of the changes in the bill you will notice there are a number of really minor drafting changes that I do not think the Committee will concern itself with greatly. But I think the bill has been improved as a result of that interaction. Again can I thank not only the members of this House but members of the internet community who have certainly engaged with me and raised some issues that I thought were valid. We did not agree on every issue but certainly where they raised points around workability and clarity we were very anxious to get that right. I think the bill is better for it as a result and I am certainly looking forward to this bill passing and becoming law so that we can say to New Zealanders that they do have an avenue available to them for real effective remedy when they are unfairly attacked demonised and victimised on the internet in a way that causes serious harm. That is not currently the case. To suggest to a young person that they can go off and get an injunction or a defamation remedy is simply a nonsense. This is real practical assistance and I am looking forward to it passing.