Barker Rick: Films Videos and Publications Classification Amendment Bill — First Reading 
Barker Rick: Films Videos and Publications Classification Amendment Bill — First Reading 
[Volume:615;Page:11457] 
Hon RICK BARKER (Associate Minister of Justice) 
 on behalf of the 
 Minister of Justice 
: I move  
That the Films Videos and Publications Classification Amendment Bill be now read a first time. 
 I intend to move that this bill be referred to the Government Administration Committee for consideration and report back by 30 June 2004. This is the first significant reform of the censorship laws since 1993. The bill arises out of the 2003 Ministry of Justice review of the offence and enforcement provisions of the Films Videos and Publications Classification Act and the wide-ranging inquiry into the operation of the Act by the Government Administration Committee as also reported in 2003. 
The most important reform advanced by the bill is the new measures it contains to combat the alarming growth in child pornography trade via the Internet. While 10 years ago censorship laws were concerned mainly with books films and magazines offenders now use the Internet to access exchange and store thousands of objectionable images in a way not previously imagined. The tenfold increase in penalties for dealing in such material contained in this bill reflects the abhorrence with which this Government and society regard this trade. Child pornography is images of child abuse. Trading in such images creates a market for such abuse. 
Most of that trade is not a commercial transaction so it is not treated as a serious offending under existing laws. The current maximum sentence for producing copying or trading objectionable material is 1 year in jail while possession is punishable by a fine of only $2000. The penalties in this bill will cover all forms of distribution whether or not for commercial gain. The bill increases the maximum sentence for dealing in objectionable material to 10 years in jail. It also creates a new offence of possession with knowledge that will carry a maximum penalty of 2 years’ jail. 
While the new maximum penalties will be available for all objectionable material the fact is that child pornography is a No. 1 enforcement priority. This is reinforced by the provision in the bill that child pornography will be treated by the courts as an aggravating factor in sentencing. The amendments also ensure that New Zealand meets its obligations under the United Nations Convention on the Rights of the Child covering child prostitution and child pornography by providing for the extradition of people who have committed offences in other countries. 
The introduction of importing and exporting offences recognises that trade in child pornography is an international problem. The classification criteria contained in the Act have come under scrutiny following a recent Court of Appeal decision. Following a comprehensive review in 1993 section 3 of the Act sets out the meaning of “objectionable” the legal standard for prohibition. For a publication to be objectionable it must deal with matters such as sex horror crime cruelty or violence in such a manner that the availability of a publication is likely to be injurious to the public good. The meaning of “objectionable” contained in section 3 of the Act acts as a gateway to restrict the scope of censorship laws. 
The operation of this gateway has come under scrutiny in the recent Court of Appeal decisions. The decision in the Living Word Distributors Ltd case made clear that the Act cannot be used as a censor of publications on the primary basis that they contain derogatory highly offensive or even hateful opinions about particular groups—material that we might call hate speech. Similarly the law cannot be used to address the growing problem of covert filming. The Government Administration Committee expressed concern about both these issues. The Government has concluded however that the gateway correctly identified the kind of material that should be banned under censorship laws and that censorship law is not an appropriate place to deal with hate speech or covert filming issues. 
The danger in widening the gateway to encompass matters of opinion or belief is that it opens censorship to potential abuse. Censorship regimes have in other times and places been used to suppress political and religious thought and opinion considered by those in power to be dangerous or subversive. A regime relying solely on “injurious to the public good” test would not provide adequate safeguards for the important principle of free speech against such abuse. The Government believes that its concerns about hate speech and covert filming can be isolated and dealt with appropriately elsewhere. 
Hate speech is essentially concerned with discrimination and should be considered in that context. We need to be very careful about the balance struck between freedom to express opinions on such matters and protection of members of the community from demonstrable harm. The Ministry of Justice will report to Phil Goff on a range of options available to address statements and behaviour that vilify certain groups in society. This will include consideration of the Crimes Act and the Human Rights Act. 
The essence of our concern about covert filming is the intrusion on a person’s privacy. The images captured through such filming do not necessarily portray anything objectionable. If they do they are of course classified on that basis. The covert nature and the way in which the image was made do not properly fit within our censorship regime but I share the concerns of the committee about this practice. The Law Commission and the Ministry of Justice are currently undertaking further work on the potential legal responses of covert filming which recognise it primarily as an intrusion on privacy. 
There are however two discrete areas child nudity and offensive language where doubts have been raised about the implications of the Living Word Distributors decision. The bill makes discrete amendments to deal with these potential areas of uncertainty. The law must leave no doubt that sexual images of children are objectionable and can be banned by the censors. The second amendment provides that offensive language is in itself a ground for age restriction and may be harmful to people under a particular age. It is the Government’s view that the fundamentals of the classification system are in good shape. The system is accessible responsive and consistent but there are areas where improvement could be made. The Government Administration Committee’s inquiry has been helpful in identifying these areas. 
Improvements proposed include: the Commissioner of Police being able to submit for publication classification directly to the chief censor without having to seek leave—the chief censor being able to fulfil public notice requirements where it will be too great a burden for the submitter; official labels having to be used uniformly for publications other than films as it is confusing for the public at present to have a range of non-official labels that are currently in use; and the Film and Literature Board of Review having a review of its membership size from nine to six to make it more manageable. There are also several other minor changes to improve the clarity of the law. 
This bill is the first significant reform of our censorship laws for nearly 10 years. It clarifies issues around the meaning of “objectionable” and will improve the operation of our fundamentally sound censorship regime. By far the most important change however is that it addresses the recent explosion in trade in child pornography via the Internet. People who produce trade or distribute child pornography now may face up to 10 years in prison and people who possess child pornography may face up to 2 years. These penalties clearly reflect the abhorrence in which this Government holds these crimes. I commend the bill to the House.