Clendon David: Harmful Digital Communications Bill — Referral to Justice and Electoral Committee Second ReadingText is incorporated into the Bound VolumeClendon David: Harmful Digital Communications Bill — Referral to Justice and Electoral Committee Second Reading[Sitting date: 24 March 2015. Volume:704;Page:2548. Text is incorporated into the Bound Volume.]DAVID CLENDON (Green): I must say it has been interesting in these last few weeks to see the level of interest and activity around the Harmful Digital Communications Bill. It has sat for some time. The Justice and Electoral Committee reported back from memory in about May last year. An election intervened of course but the bill has sat relatively unmolested for some time. But of late there has been some obvious interest and particularly industry interest. The industry seems to be going to some pains to ensure that we as politicians are well informed. I think I have to acknowledge the Minister of Justice and her comments in the introduction that the larger companies—Google and Facebook and the like—that will be affected by this legislation are not actually public service organisations; they exist to make money to make a profit. It is interesting that the Productivity Commission noted that regulation does impose compliance cost on some of these digitally based organisations. Frankly I am quite happy for that to occur. Generally I am not an enthusiast for imposing costs on business but if a small cost on business generates a positive social benefit—particularly when large multinational organisations are involved—then frankly I have no concern with that.I was on the select committee for this bill. It was a good select committee. It was a very engaged select committee. The bill that came out was notably different from the bill that went in and it was a better bill. It was a very engaged very vigorous conversation. I think as I said that the bill that came through was better and much improved. Having said that I am quite sure that this bill is imperfect. Seldom I think do we get it absolutely right the first time when legislation goes through this House. But I do believe that this bill is sufficiently good and fit for purpose to merit our support and the Greens will continue to support it. We are interested to see the Supplementary Order Paper that we understand will be forthcoming and we will engage with that in later readings obviously.I would just like to refer specifically to some of the objections we have heard. We heard a bit about this notion that this bill will criminalise children. We have an age of criminal responsibility in New Zealand of 14. That does not change. I have not seen any appetite from any stakeholder in this conversation to criminalise children. Clearly it is a theoretical possibility but it would have to be extremely high-end offending and continued offending I think before any child would suffer the penalty from a court. There has been commentary about education or the lack of it. I can say that one of the first changes the select committee effected was in clause 3 the purpose clause of the bill. Right there at the nub of the bill it inserted the words “deter prevent and” before “mitigate harm”. The conversation about that was absolutely to do with the necessity of educating. The best cure of course is prevention and the new wording of the purpose clause reflects that commitment to doing that. I must confess I am slightly puzzled by the objection that there is nothing in the legislation that indicates where the educative activity will come from. To me it is blindingly obvious that one of the core functions—and it is written into the bill—of the approved agency is that it will have a responsibility to educate in the same way as the private sector is already doing as are NetSafe and others. I think Vodafone is worth a special mention. It has a very active educative programme targeted well at kids their parents families schools and the like. So I do think that that objection has been somewhat overstated.We have heard a bit about the fact that other countries are not going down this road of creating criminal offences. I have done enough comparative research around corrections around policing and around justice issues generally to realise that you have to tread a bit cautiously because inevitably legislative regimes are complex and multifaceted. I think you really need to know and understand the breadth of a particular regime before it is useful to make comparisons between one and another. I am somewhat persuaded by the fact that our Police Association has identified that there is a gap in the legislation. It is quite relaxed that if I go online and threaten to assault somebody damage their property or do some criminal harm to it then clearly that is an offence. There is no question with that. Low-level bullying the sort of schoolyard thing has always gone on and always will and we have means of dealing with that. But with this notion of causing harm through digital communication the Police Association in its submission pointed to a gap in the legislation that is impeding its ability. The appeal from the association was to give it the tools and it will apply them appropriately. The Human Rights Commission made a similar commentary that there is a gap in the legislative tool kit that offences or offending are not able to be addressed clearly and with a degree of timeliness and that this new legislation is necessary and useful to plug some of the gaps in that.Clause 19 of course is the clause that creates this new offence of causing harm and I think that it is important to note that effectively there are three characteristics of the offending that must be proven. The first is that there must be a proven intention to cause harm. The second is that it must be proven that a reasonable ordinary person would suffer harm as a result of this. So it is a somewhat objective test: is this something that crosses that threshold? The third is that actual harm did result from the digital communication. So intention is not enough and potential is not enough. The three characteristics are conjunctive. You must prove intention and the likelihood of offence or harm being done and the actual harm being done.We have heard some comments about concerns that satire for example might be stifled by this legislation. Again I do not accept that because in clause 19 it again talks about the context of a particular communication. If any one of us sees reporting on The Civilian website for example—there was a case I believe where one Colin Craig was “quoted” on that website as having said something that of course he had not said. It is a satirical website. Any reasonable person reading such a website would be alert to the context in which that statement is made and that to me would pull the teeth of any attempt to bring a criminal charge against such a person. The age and circumstance of the person who allegedly is being offended against or at whom harm might be directed are factors. Again with politicians if somebody has a little bit of a crack at us on Facebook or suchlike we are expected to have a thick skin. We are public figures mature adults and people of some authority. It is expected that the threshold would be significantly different for any one of us in this House from what it would be for a 13-year-old schoolchild for example. I think that is entirely appropriate. I do think that the qualifications if you like the extremity of language the age and characteristic of the victim the context as I have mentioned and the anonymity—for all of those things I do think that there are protections already built into the bill that can assure us that it will not be misused or abused.As I said earlier the Human Rights Commission came out strongly in support of this bill. We have heard a bit about some concerns that we are creating offences in the digital environment that do not exist in the real world. The Human Rights Commissioner quoted a 2011 report to the UN General Assembly from a UN special rapporteur who talked about the unique characteristics of the internet. It is a unique environment; it is not the real world and I think we are slowly reaching towards a legislative regime that recognises the uniqueness of that environment and seeks to address the inevitability really that it will be used inappropriately to cause harm to people. And that is something that this bill seeks to remedy.I am also comforted by the fact that the bill specifically states in clause 6 where it refers to anybody exercising functions and powers of the bill that they must be consistent with rights and freedoms contained in the New Zealand Bill of Rights Act. There are not too many pieces of legislation that specifically identify that obligation to be compliant with the New Zealand Bill of Rights Act. I do think that it is almost a belts and braces approach. I think it just recognises that we are feeling our way into new territory here. I do not think we need to resile from that. It is a new environment it is a new set of situations that we are addressing and I am comforted somewhat by that specific reference to the New Zealand Bill of Rights Act. I look forward to participating in the Committee stage and the later debates on this bill. Thank you.