Clendon David: Objectionable Publications and Indecency Legislation Bill — Second ReadingText is incorporated into the Bound VolumeClendon David: Objectionable Publications and Indecency Legislation Bill — Second Reading[Sitting date: 24 February 2015. Volume:703;Page:1875. Text is incorporated into the Bound Volume.]DAVID CLENDON (Green): This has been an interesting bill. I did not attend all the Justice and Electoral Committee hearings but some of them I did. I believe that everybody in the House is supporting this bill and so too are the Greens. I think that the goodwill towards this bill clearly comes from the general abhorrence of the sort of offending that it deals with particularly the sexual exploitation of children which is unacceptable at any level of society. For that reason the Greens are supporting this bill. The current legislation is not actually fit for purpose particularly given changes in technology and other changes over time. We do have a couple of pretty serious misgivings about a couple of provisions of the bill and we will seek perhaps to have those addressed as the bill proceeds through the Committee stage.Clearly as I said the law is not fit for purpose to the extent that forms of offending are now available or possible through technologies that simply did not exist when the legislation we are amending was first passed. It is interesting that there were remarkably few submissions on this bill—only eight three of which were heard orally. That may have been a function of the timing. The bill was tabled in November 2013 and of course the submission period closed in February—never a happy time to endeavour to generate public interest in something like this. I am not suggesting any political motive behind that timing I reassure the House. I am not suggesting either that that never happens but in this instance I think it was simply unfortunate timing and perhaps we might have got a little bit more in the way of submissions given the seriousness and the nature of the legislation. But be that as it may we did get some good and useful input from the Law Society from community law centres and so on.Among other things what this bill does is create a new offence of indecent communication with a young child. This sits somewhere in the middle of a spectrum. At one end is the simple possession of offensive material and at the other end sexual grooming—those rather undesirable practices where people worm their way into the confidence of a child or indeed a family and then use that as an opportunity to exploit and ultimately sexually assault children. This new offence covers a gap in the centre of the spectrum in between the availability of porn and these sorts of undesirable matters. That I think nobody can have an objection to and to that extent the bill does fill a very obvious gap in the existing legislation.The bill also provides for a presumption of imprisonment for “repeat child pornography offenders” and that is one of the elements where we do have some unease. That unease was shared by the Legislation Advisory Committee and by the New Zealand Law Society. The former the Legislation Advisory Committee felt that there has been a little bit too much legislation coming through in recent times with things like the reverse burden of proof and the presumption of imprisonment—perhaps these are tools we are using rather too readily given the seriousness of them and the seriousness of the message they send to the judiciary. To some extent they do not constrain the judiciary by any sense but they do begin to limit the discretion of the judiciary perhaps.I think that the idea of presumption of imprisonment does certainly reflect people’s abhorrence of this form of offending as I said but I think we need to be a little more creative as well and look at what other solutions might actually generate better options. Specialist courts for sex offenders—which we know from international experience and to a limited extent from experiments or trials conducted here—could possibly do better with the lower-end offending of this nature even repeat offending in terms of managing these people rather than simply locking them away and hoping that things will come right.There are alternatives like treatment facilities and programmes for sex offenders. I cannot now recall which one but one of the Government contributors on this bill talked about the people who offend in this way as actually being sick and I think that is fair comment. People commit crimes for all sorts of reasons. Greed is a common one. I might choose to go and steal somebody’s possessions because I want to own them. Sexual offending of this sort reflects a very disturbed personality at least. Often that sort of disturbance is amenable to treatment. We have had some success in New Zealand with specialist sex offender units and programmes within our prisons and indeed outside our prisons and I think we need to invest a bit more in making sure that those services and programmes are made available to the people who most need them.I have had numerous letters over 5 years or so from people in prison who acknowledge that they have a serious problem and want to get on to a programme for sex offenders but the availability just is not there. I think we could look at investing more in those sorts of positive mechanisms rather than simply leaping to imprisonment as being the be-all and end-all of the solution.Some provisions in the bill caused a bit of concern among internet service providers. That concern was around a clarification that a person could have possession of objectionable material without actually saving it or having a physical copy of it. Of course this recognises that it is perfectly possible to expose yourself to this sort of offensive material but under the provisions of the old law it was debatable as to whether you actually were in possession of it.The provisions to overcome that barrier excited the interest of Vodafone at least which saw that as an internet service provider it could be captured unintentionally—the fact that it is effectively hosting this material albeit unwittingly of course meant that it could be swept into the same bucket. That was a very useful contribution from Vodafone. The response was that that is obviously not the intention of the bill. The Harmful Digital Communications Bill is struggling with similar issues at the moment but it is made very clear in the text of the bill that that is absolutely not the intention. The internet service providers are not the target.The point at which we do part company a bit from this legislation is the point at which it is proposed that there be an increase in maximum penalties for the possession importation exportation supply distribution and making of objectionable material. The underlying assumption behind that is that longer sentences are a deterrent but there is ample evidence internationally and again in research that has been done here that longer prison sentences are not necessarily a deterrent.People who offend in this way are driven as I said earlier by some deep personality defect. Often they have no boundaries no parameters. In a sense this is not rational offending. People are not necessarily going to make the judgment: “If I offend in this way I’ll go to prison. Therefore I won’t offend.” The drivers are more complex than that. Simply saying that we are going to have longer sentences does not necessarily equate with deterrence in these cases—or indeed in many cases—and I think again we need to be a little bit more sophisticated in our understanding of what actually does work as a deterrent and what will enable these people to better control themselves.The Salvation Army and the Dunedin Community Law Centre made submissions expressing concern about the notion of stretching the maximum penalties on the basis that you could get a somewhat perverse outcome where the possession of objectionable material could carry a higher penalty than the actual physical assault or abuse of a child. There was a counterargument made to be fair by the officials. They said that the creation of objectionable material may well involve the abuse of a child or physical harm to a child. So again it requires a reasonably sophisticated approach to try to ensure that we achieve the outcome which is to drive this menace out of our society and to do it in ways that are actually going to achieve that end and do not just seem to be going through the motions.I think that that is probably as much as I can say in the time available except to say that the Greens will continue to support this bill because there is a gap in the legislation. We are dealing with particularly abhorrent offending. We will however seek to get some changes in the Committee of the whole House. Thank you.