Ardern Jacinda: Objectionable Publications and Indecency Legislation Bill — Second ReadingText is incorporated into the Bound VolumeArdern Jacinda: Objectionable Publications and Indecency Legislation Bill — Second Reading[Sitting date: 18 February 2015. Volume:703;Page:1751. Text is incorporated into the Bound Volume.]JACINDA ARDERN (Labour): Thank you for the opportunity to speak at the second reading of the Objectionable Publications and Indecency Legislation Bill. At the outset I would like to thank colleagues within Labour the Hon Maryan Street and Raymond Huo who were both members of the Justice and Electoral Committee on Labour’s behalf and were fantastic members of the Labour caucus. We hope we can carry on their work in our scrutiny of this bill.I say up front that Labour is supporting this legislation although I believe that in other readings of this bill we have expressed some concern that we have seen just a slightly ad hoc approach to some of the justice legislation that has been coming through the House and that perhaps there is room for a more systemic coherent justice strategy on issues like this. Because although this bill addresses some of the concerns with indecency and child pornography we wondered whether or not further justice legislation needs to be created to get at the—[Interruption]The ASSISTANT SPEAKER (Hon Trevor Mallard): Order!JACINDA ARDERN: —societal issues that really go to the heart of this issue. Child pornography offenders for instance have particular characteristics that do set them apart from other offenders and legislation could perhaps be worked out that addresses that concern.Denis O’Rourke: That’ll learn him.JACINDA ARDERN: The member did not give me the royal wave as he entered the Chamber which I think was what was missing.We have had a history of increasing penalties in this area over time as recognition of the severity of these issues has come to the fore. In 2002 I worked in the Hon Phil Goff’s office when he was Minister of Justice. As I recall—Grant Robertson: Did you get counselling?JACINDA ARDERN: —no counselling required; it gave me a very good political start—organisations like End Child Prostitution Child Pornography and Trafficking of Children for Sexual Purposes (ECPAT New Zealand) an international group with an excellent advocacy chapter here in New Zealand would frequently visit Phil as Minister of Justice. They raised the issue of the inadequacy of the laws that we had in New Zealand which had been based around censorship legislation. In 2003 Phil specifically raised that the penalties were “clearly inadequate and fail to reflect the fact that the production of child pornography involves the actual abuse of children”. I do think that the changes that we are making today reflect that that is a sad reality indeed. So it led to the current penalty regime. I believe that 2005 was the last time we saw an increase in the penalty regime and we are now reviewing it again. In fact ECPAT New Zealand always argued that the penalty regime should be in line with our child abuse penalties and regime.As the Minister of Justice has already outlined we have got an increase in the maximum penalties for possession importing and exporting of objectionable publications from 5 to 10 years—keeping in mind that of course we have judicial discretion as to where on the severity of that scale any offender will sit—and in the maximum penalty for the supply distribution or making of an objectionable publication from 10 to 14 years. Again as has been said given the abuse of a child that takes place in the making of some of this material that seems absolutely appropriate. There was however a concern heard as I understand by the select committee made by some submitters that increasing penalties for objectionable publications was a very general way to approach the issue because it was not so specific as to say that it should solely be for objectionable publications that involve children. There was concern about whether or not that could actually be specified.Actually this was an issue as I understand it that was raised back in 2005 because the framework legislation that we are working from is still a subset of the Films Videos and Publications Classification Act which does not hold as I understand it a separate offence around child exploitation material. So I would be interested to hear from a member of the committee as to why it was considered. Obviously in 2005 they said it would be too complex to create a subset. I would be interested to hear from a member of the committee as to the nature of that discussion. I understand that there was some talk about whether or not you would need to create separate subsets then for women who were objectified in an exploitative way in material as well; whether or not you would then have to individually codify everything if we went down this track. It was a concern raised by I believe the Law Society so it certainly merits some discussion and analysis. So I look forward to any member who was a member of the committee expanding on that.There was also some discussion around the way that multiple offences should be treated. It is something that we debate frequently in this House: should we tell the judiciary that if it has someone who comes before the courts more than once it should then be required to impose certain penalties? Of course I mean the three-strikes legislation. On this side of the House we always had trouble and issue with legislation such as that. But what this bill does instead is say that for the very specific offence of the publication of exploitative material that involves children if an offender presents for a second time there should be a presumption of jail. That is very different for instance from the three-strikes legislation which is not specific to an offence.In particular and again I would be interested to hear if there was evidence of this if there have been multiple offences in this area or a second offence—and as the Minister said offenders are often calculating in this area and particularly manipulative in the way they operate to continue their offending—if we know that the evidence suggests that this will continue and there will be an escalation then it would make sense that if someone was found guilty of a second offence we should give a suggestion to the judiciary of what our expectation is for that offender. We do not have things like the Sentencing Council which might be able to give guidelines to the judiciary on issues like this so perhaps Parliament unfortunately does need to be much more explicit in that regard and express a presumption of imprisonment. But again judicial discretion always always does remain in that regard.We then move to the Attorney-General’s consent for prosecution which was an issue raised by the Minister. I think this is a piece of legislation that demonstrates that often when we put in place legislation in a new area where we have not been able to test the way that Government departments will utilise the provisions that are given checks and balances are a wise thing to do. But it is questionable whether or not we still need to have for instance a requirement for law enforcement agencies to obtain the Attorney-General’s consent to prosecute for objectionable publications and indecency offences. Indeed when it is the police the Department of Internal Affairs and the New Zealand Customs Service that are predominantly involved in those prosecutions I think the common sense of the House would say that after this period of time when they have been tested in this area we can have faith in removing that provision. But of course it still remains for private prosecutions and that makes absolute sense on my reading.Finally I refer to indecent communication with a young person. It has been an issue for some time as to whether or not a prosecution should still be able to proceed under the realm of grooming for instance or indecent communication with a young person under the age of 16 for which we are now creating a new offence in the Crimes Act. But should for instance a law enforcement agency be able to purport to be that under-16-year-old in an interaction and have that offence still hold? Again this is something there has been enough experience with in the departments that I think they have made a fair case that it would be on reasonable grounds. Someone purporting to be a 16-year-old but is in fact a law enforcement agent—we can be assured that there are enough protections in the law to ensure that is only being used in an appropriate way. Otherwise we are putting children at risk if we are not enabling checks and balances to exist in some form around allowing law enforcement agencies to go on and gather the evidence that may be required for a successful prosecution but in such a way that we are not using entrapment for instance.I think that covers the main provisions. The select committee in my view has done excellent work. Labour of course supports the continued progress in that area to make sure that we are up to date with the current challenges that we face.