Curran Clare: Harmful Digital Communications Bill — In CommitteeText is incorporated into the Bound VolumeCurran Clare: Harmful Digital Communications Bill — In Committee[Sitting date: 23 June 2015. Volume:706;Page:4647. Text is incorporated into the Bound Volume.]CLARE CURRAN (Labour—Dunedin South):Well this bill went through the Justice and Electoral Committee very fast over a year ago and came back to the House for its second reading. It did not have its second reading until a couple of months ago and now we are into the Committee stage. There is no doubt—as the previous speaker Jacqui Dean who chairs the Justice and Electoral Committee has noted—that cyber-bullying is a significant issue. Members on this side of the Chamber completely agree with that and know that there are serious real life consequences for victims and that the proliferation of communications particularly hand-held devices that people have with them the whole time has allowed for much more instant communication and for the consequences of that to be very real. We also recognise that the current framework is inadequate so the need to have a new framework is important. The Law Commission went through quite an extensive piece of work around that.However in terms of the bill that is before us and the bill as it was through the various processes Labour has had significant concerns and we have not resiled from setting those concerns out there. We continue to have grave concerns about the bill in its present form. We acknowledge however the work that the Minister of Justice has done to attempt to redress some of those issues in the bill. Despite that we continue to have concerns and we will be outlining those over the course of this evening but on balance we consider the issues of cyber-bullying serious enough to warrant our support for the bill through the Committee stage.We do however consider that the bill will have real problems in its execution and its application. It is going to result in cases being referred to the court that will waste the court’s time. It will put pressure on the approved agency that is set out in the bill and there are no guarantees that the approved agency will be properly resourced or properly skilled to deal with the mediation and legal work required because this is new territory. One of Labour’s considerable problems with this bill is that it is back to front. It should have been the end of the process rather than the beginning. There should have been a comprehensive education programme in place that enabled the community and agencies to become much better equipped to deal with cyber-bullying before punitive new laws were introduced that were untested and created new offences that apply in only the cyber environment. Instead this is where we have ended up pretty much first and we have got no guarantees that there will be the resourcing put in place to ensure that the new regimes will be able to actually be effective.The bill as I said was rushed through the select committee unnecessarily. There was a very very important stakeholder group that never ever got consulted and that is the young people who are largely going to be affected and the people who represent them: people in schools and people who are parents. There should have been a much more extensive process throughout the community before this bill even came before a select committee and unfortunately that did not happen. So if this is going to come in—when and if it is enacted—it will come as quite a shock I think to large parts of the community in terms of the measures that are in place and the criminal offence that is in place and the penalties that are being imposed in that.Labour abstained from voting on the bill in the select committee and we voted against it in the second reading as I have said. We did express a number of concerns which I am just going to quickly set out here tonight in my opening contribution. We believe that the bill has the potential to criminalise children and it continues to have that potential to criminalise children for behaviour that is best dealt with through education and those interventions. Labour has an amendment in the House tonight to address the part of the bill that provides that anyone under 17 cannot be convicted under clauses 18 and 19 of the bill. Tonight I urge speakers in the House on this bill to read and consider that and to think about the consequences of the impact on young people of being put in a court situation and potentially convicted.We believe that the definition of “harm” is too broad and we are certainly not alone in that. The definition which is “serious emotional distress” has the inability to be tested in any way until the matter goes before a court and not just before a court but also before the approved agency that will be dealing with the bulk of cases in the civil regime. It will have to initially decide what the legal definitions are and ensure that there is a balancing act that takes into account free speech as well as emotional distress to the victim. It will need to determine that but will it be equipped to do so? That is a really important question. Will it be equipped to do so? We are yet to know what and who the approved agency will be. As it stands there will need to be legal training involved in making those sorts of judgments.The proposed civil enforcement regime in the new criminal offence displaces the longstanding balance in New Zealand law and it is being replaced with novel and untested standards. What this piece of legislation does is create a new criminal offence that occurs in only the cyber environment. It does not mirror an offence in the physical environment and therefore it is a completely new and untested means of addressing what is a significant problem. We have concerns about that. We in the Labour Party are certainly not the only ones who are concerned about this. I know that many in the legal community also have concerns about this. We believe that it is also out of line with what are the trends that are happening overseas which are more away from criminalisation and towards education and ways of dealing with things in the community that involve mediation and ensuring that the community is better informed and better equipped. We believe that there are questions about whether it will be able to prevent harm and that it will not provide a quick and efficient method of complaint and take down.One of the major provisions in the Minister’s Supplementary Order Paper 91 is around the safe harbour provision. If there is something harmful that has been posted it allows for a 48-hour period in order for the person who posted the harmful item to be contacted. That is a long time—that is an awfully long time—to have something very harmful up. So the Minister’s Supplementary Order Paper will enable online content hosts to use their own provisions. For example an internet service provider such as TradeMe or whatever that has existing terms and conditions that it would rather use such as taking the item down immediately—which I know organisations like Facebook Google and YouTube often do—is now allowed to use those provisions. This is a good thing but they will not be covered under the safe harbour provision of the Act if they do so. So essentially it is a bit round the wrong way and it means that harmful items are going to be out there in the public arena for quite a long period of time with no legal provision to take them down and the effect of that is untested.