Crimes (Intimate Covert Filming) Amendment Bill — Third Reading 
Crimes (Intimate Covert Filming) Amendment Bill — Third Reading 
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Crimes (Intimate Covert Filming) Amendment Bill 
Third Reading 
Debate resumed from 21 November. 
BRIAN CONNELL (National—Rakaia) 
: 
 It is a great day for a speech and I am very pleased to be able to take a call. I appreciate the fact that you have called me Mr Deputy Speaker. When I last spoke on this bill I made a number of points and I would like to take the opportunity to recap. 
This bill is very overdue and the National Party strongly supports its passage. The reason we support it is that with the advent of new technologies—cellphone cameras hidden cameras etc.—surreptitious and covert filming of people in intimate roles or positions is taking place without their consent and knowledge and in circumstances when they would reasonably expect to be private. With the use of this technology people are able to infiltrate those intimate situations. In a few words we are dealing here with modern-day peeping Toms and the people of this country deserve to have legislation that gives them the protections they deserve. 
The point I was making in my interrupted call was that there was no point having legislation in place to give the police the authority to act if they were not resourced appropriately to take advantage of it. I gave a couple of examples one of which was the silly prosecution the police were bringing against the woman driver who crashed her car on the West Coast and who was down a bank for 2 days. I struggled to see where the public good was being met in that regard. 
When the debate was interrupted I was making a point—and I know my colleague Chester Borrows will also want to raise it in his contribution—in relation to the issue of covert audio recordings of people in intimate circumstances. I think there is a flaw in the bill in that it does not pick up this particular issue and I say to Government members that it is an issue they will have to revisit. Are people less violated because they have been listened to rather than watched in intimate positions? If a recording is made of people without their knowledge without their consent when they are engaged in an intimate act then I say that their privacy is invaded and that those people are due the same protection under the law as people will now have in relation to visual recordings of that activity. 
The last point I want to make is that a visual recording made with the consent of the parties involved is one thing but the distribution of that recording for wider public edification without the parties’ consent is another matter. An example that comes to mind is that of celebrity sex videos. One video I have heard spoken about regularly is the Paris Hilton video where she and her partner were filmed with their consent when engaged in sexual activity but the recording was then put on to the Internet without her consent—and in my view that is simply wrong. That is another issue in this bill over which there is a question mark. 
Having made those two or three points I conclude my contribution by saying that National strongly endorses and supports the bill. But I have drawn the House’s attention to two areas of exposure and I say to the Minister that he will need to address those quickly. 
DIANNE YATES (Labour) 
: 
 As the previous chair of the Government Administration Committee it gives me great pleasure to speak on this bill. This bill came out of an inquiry into the Films Videos and Publications Classification Act after the issue was highlighted by Bill Hastings the chief censor at the time. When we were looking at that legislation we were looking at matters of pornography. As the previous speaker pointed out another issue always comes up; when we start talking about one area somebody says: “Hey what about this?”. 
This was a matter that Bill Hastings the chief censor and some other submitters brought to the committee’s attention. They said that now that we have the technology and people have cellphones with digital cameras in them we have a problem. Bill Hastings showed us some examples of people who had been sneaking cameras into dressing rooms at swimming pools gymnasiums and so on and not only taking pictures—which is an invasion of privacy—but also onselling those pictures. 
Bill Hastings said that this matter should be included in the Crimes Act and it has taken some time for this bill to come to the House. I am really really pleased that we have got it through to this third reading stage and that there will be an amendment to the Crimes Act. I thank Bill Hastings for pointing this matter out and I thank members opposite for pointing out other issues that have since come up such as covert audio tapings and so on which will also need to be dealt with. 
As has been said this bill is about peeping Toms and Thomasinas—to be politically correct in the language. It is about people using technology in ways that are not appropriate. This is not to say that people cannot take baby pictures and so on. This bill is about people who take films of other people and use them in ways that are to the detriment of those people and to the detriment of society in terms of what is considered appropriate. 
I thank the select committee that carried on the work that had been done previously. I thank all the officials and everybody who worked on this bill. I thank the present Minister of Justice Mark Burton and the previous Minister Phil Goff who agreed initially that this should become legislation to alter the Crimes Act. This bill has taken a long time; it has taken years. Sometimes good things in this Parliament do take a long time but eventually we get there. 
Once again I thank everyone who has been involved. I also thank the submitters. We sometimes forget those good people in the country who bother to read those advertisements in the back of the newspaper who bother to write in and give their opinions and who come before select committees to talk through issues. It is always good to thank them for their effort and their interest. In this case it is about keeping our society a decent society which is what I am sure everyone in this House would want. Thank you once again Mr Deputy Speaker. 
CHESTER BORROWS (National—Whanganui) 
: 
 I too rise in support of the Crimes (Intimate Covert Filming) Amendment Bill. I am pleased to be able to support the bill. It deals with a situation whereby technology has enabled people to create or take advantage of opportunities to offend just as innovative New Zealanders have been quick in other fields where technology has moved on to use that technology to offend. 
I am reminded of the first piece of technology for peeping and peering that I became acquainted with—a mirror stuck on the bottom of a walking stick. That was 30 years ago of course. Deputy Speaker Simich may remember seeing that during a trip to the Police College museum in the early 1960s. It is a famous piece of equipment. However we have moved along. 
Brian Connell 
: Is that where I left it? 
CHESTER BORROWS 
: Yes one would certainly need to have reasonable eyesight to take advantage of a mirror on the bottom of a walking stick. 
One of the things that really bothers me is something that was raised by my colleague Brian Connell. It concerns two instances raised at the select committee. After initially being pooh-poohed we were given an assurance or at least an undertaking from the Minister of Justice that these things would be looked at. 
Members may recall an incident that I recounted to the House during the second reading whereby a young farm lad with a crush on the neighbour’s wife crawled under the neighbours’ house drilled a hole in the floor of the bedroom and audiotaped the night-time discussions that went on therein. Apparently he got his jollies from listening to that. 
Covert audiotaping of intimate transactions is a reality. It does go on. We can imagine the embarrassment if such things were published. Given the opportunity with the formulation of this legislation and the fact that the issue was raised with the Minister and an undertaking was given that it would be looked into and addressed it seems a real shame to me that that never happened. 
I also raised another example during the second reading in respect of constituents. A young boyfriend and girlfriend had taken intimate photographs of each other on a digital camera—something they had both consented to do. Then the relationship fell over and what do you know the intimate photographs that had been taken with consent were published on the World Wide Web. The young woman who had moved away from home and into a hostel was confronted with the fact that other boys living at the hostel had seen photographs of her. She had consented to those photos being taken for the particular purpose of her boyfriend having them but now everyone was able to see them. Members can imagine how she felt about that. That issue was raised with the Minister and again an undertaking was given that it would be looked at and considered in the final drafting of this legislation. 
 The reason why that action is not against the law in respect of this legislation is that an intimate covert video or image is defined as one made without consent. In the example I have just given photographs were taken with consent but published without consent. It does not seem that anyone has broken any laws in respect of that example. I find it quite surprising that given the simplicity of making a couple of amendments altering just a few words to account for that that was not done. 
Having been in the House only about 12 months I find it a bit hard to get my head round exactly how this place works all the time but I find it really quite amazing that our having been given those undertakings and knowing that people were looking at it no one got back to us to explain why it had not been included or was not going to go any further. If we want to do something about it we have to set about creating a new piece of legislation and that seems to be a bit of a waste of time. Addressing issues is exactly the reason why things are debated in the House and people bat issues backwards and forwards. 
The National Party agreed right from the start that we would support this legislation because it was addressing something that needed to be addressed. But having raised through the course of debate other points that needed addressing too—and given that in the experience of some of us in the House they were quite glaring omissions and could have been easily fixed—we have to ask why they were not fixed. Was it just a matter of climbing over the ego was it a genuine oversight or was there a serious look at the proposals and they were discounted by the officials and advisers and thus the Minister? 
Having said all that the National Party will be supporting the bill. It is timely. I attended a police symposium yesterday on how we will be policing in the future. Several points were made about how the role of the police had changed over time and the fact that when the Police Act 1958 was drafted there was only one bunch of people doing policing in this country and that was the New Zealand Police. Nowadays every piece of core business of the New Zealand Police is being replicated by some private operator in this country and for certain a number of different agencies both public and private will be policing and enforcing the issues in this bill. We need to take account not only of changes in technology and the way that people offend but of changes in technology and sociology I guess in respect of those who will be enforcing it. 
In closing I note it is a shame the Minister and the ministry have not taken heed of advice that was passed on in the course of the debate. There was the opportunity to deal with at least another two areas of offending. That is obvious and a real concern for people out there. They have missed that opportunity and it is a shame. 
NANDOR TANCZOS (Green) 
: 
 Like other parties the Green Party is supporting this bill and it is probably one of those examples of broad cross-party consensus that a law like this is needed and that the issues around intimate covert filming are highly significant and that New Zealanders do need protection from this highly invasive activity. Because of technological development the scope for this has increased the scope for the publication and broadcast of these kinds of images has increased and it is not just a question of the invasion of privacy but also the humiliation in relation to the public nature of these kinds of recordings. So it is very appropriate that the House is passing this legislation. 
I think the Government Administration Committee did a very good job and I made reference to that in my second reading speech in relation to some of the details of the bill. In that regard a couple of the items I will mention in passing are the issues around exempting Internet service providers from being liable for images broadcast through their services and that is quite right. The select committee retained the distinction between those who have a recording in their possession as opposed to those who have it for the purpose of publishing exporting or selling. It was quite right that the committee did that. 
The other issue is in regard to the requirement on the prosecution to establish beyond reasonable doubt that the recording was in fact taken without the knowledge or consent of the person and the difficulty in regard to say images done overseas. The select committee made the decision to leave that in place and expressed the view that it is an evidential matter that should be dealt with in court on a case by case basis. I think that was also the right thing to do. 
I would like to touch on my disappointment around the issues that Mr Borrows raised because I remember that he raised those items during the Committee stage. There was some debate about whether he was correct in his analysis and on having read the bill more closely I think clearly he is correct. I do not see how one can read the bill in any other way than the way he has indicated—that is it does not include either audio recordings or recordings taken by consent but then published without consent. The whole point is that the offences covered in the bill relate to prohibitions on making an intimate visual recording; on possessing an intimate visual recording; or on publishing importing exporting or selling an intimate visual recording. But the whole point is that all of those offences rely on the fact that it is an intimate visual recording as defined in the bill which is a recording made without the knowledge or consent of the person. 
If it is a recording made with someone’s knowledge and consent the bill clearly does not prohibit the publishing of those images without the person’s consent. I think it is a real lapse and actually quite arrogant of the Minister to not have addressed that matter because he did assure the House as Mr Borrows has said that he would look into it. I have the  
Hansard 
 of my own speech given on 14 March and the Minister said very clearly that he was looking into it. So that is on the record. 
 I think it is a bit of an affront that he did not at least address the issue and either clarify that it was not his intention to cover those things or amend the bill. He appears to have done neither and I think that is a disappointment. 
The other issue that Mr Borrows raised was around audio recordings. I agree with him that it is not covered. On further reflection though on thinking about it there are real difficulties in covering that. How do we start to define what is an intimate audio recording? Intimate visual recordings are defined by the nature of the images—the fact that someone is naked engaged in intimate sexual activity or engaged in showering or toileting or other things like that or the recording is made under their clothing and so on. 
But if we are talking about an audio recording it is a lot more difficult to define. We cannot tell whether someone was naked when an audio recording was made. The matter would come to bear I guess when someone is engaged in sexual activity but even that is quite ambiguous. The sounds that people make during sexual activity are not always unambiguously sexual activity. I can think of having a very good massage as an example of ambiguity in terms of the sound. So I think the audio issue does raise some other complexities which maybe the Minister did not want to address but certainly the issue of visual recordings taken with consent but published without consent is quite straightforward and I think rightly should have been addressed and I am disappointed that that did not happen. 
Having said that of course that does not mean we will oppose the bill. We think it does provide important protections and in that regard we look forward to all parties hopefully supporting it. 
PETER BROWN (Deputy Leader—NZ First) 
: 
 I do not intend to take a long call. 
Hon Clayton Cosgrove 
: Good. 
PETER BROWN 
: I thank the member for that. I think that much about this bill has already been said and it has been hanging around for so long now that it really needs to be passed this evening. The wonder boys and weirdos who get involved in this practice have to be stopped. We have to put a stop to them. This bill is addressing a sickening type of attitude that is coming more and more to the fore in this country and it is somewhat urgently required to address this practice. 
I think the National Party made some very good points when its members said— 
Hon Clayton Cosgrove 
: What? 
PETER BROWN 
: We have to be fair. The bill does not include covert audio recordings. I think that is a legitimate concern also. If the matter was raised at the select committee I think there should have been some comment on why it was left out and why it has not been addressed. I think the bill would have been a lot better for addressing that. 
As for taking photographs or visual recordings with consent then selling them I think that is also a fairly sickening practice but I guess there is some advice there. If people are the subject of a recording or a video then they certainly want to keep control of it in their own hands. There is some opportunity to control it. But I agree that for it to be sold or put on the Internet without permission is not the way it should be done and this bill had an opportunity to address that. 
The third area that the National Party did not raise is that maybe we should look at putting some controls on emails that go from place to place. 
Hon Clayton Cosgrove 
: That’s the next bill—the next one off the rank. 
PETER BROWN 
: That is the next bill is it? I thought the National Party had some interest in the transferring of emails from one area to another without permission. 
This bill needs to be passed tonight so I do not intend to take one second longer. New Zealand First will support the bill. 
HONE HARAWIRA (Maori Party—Te Tai Tokerau) 
: 
 Kia ora Mr Deputy Speaker; kia ora tatou. This bill is long overdue. The Maori Party supports the third reading of the Crimes (Intimate Covert Filming) Amendment Bill to penalise the making publishing or distributing of perve material recorded without consent by up to 3 years in jail. We support it because we well remember the racist imperialistic and pornographic images on postcards at the start of last century—photographs of Maori women with cloaks draped in such a way that one breast was exposed or of young Maori women lying around naked. In case members have a hazy memory of those times how about this for a fact? In 1909 alone 9 million postcards went out through the post office at a time when our population was only 1 million. In fact the sleazy exotic of the native postcard was heavily exploited. One could buy images of what were called dusky Maori maidens on postcards and paintings—and even see them in the early days of the cinema—all over the country. Jacqui Beets in her paper  
Images of Maori Women in New Zealand Postcards After 1900 
 describes how those maidens were posed with lowered eyelids and a shy come-hither glance to invite possession or ownership of a native woman and her land. 
Other writers in the Pacific also used the same intimate covert filming techniques to promote cultural tourism and land alienation as one juicy package. One Tongan writer described such voyeuristic filming as a major contributor to as well as a manifestation of a process of cultural invasion. That cultural invasion—that promotion of sex and the dusky maiden to sell postcards and promote colonisation—has finally come before this House. 
Beets concludes her study of the alluring Maori maiden theme by noting: “New Zealand postcards featuring Maori women thus suggest a policy of exploitation by early 20th century recorders and image-makers.” More than 100 years later we will finally see legislation pass to ban the filming and distribution of images taken of people in those situations without their consent. 
The Maori Party also supports the recommendation of the Government Administration Committee to include recordings made in any medium and images that use any device whether recorded or shown live because today’s criminals are as devious in their use of technology as last century’s photographers were in the posing of their models. To cover every angle we also support the view that the possession of such material for the purpose of publishing importing exporting or selling it should also be considered as grounds for a 3-year jail term. 
There was one particular issue that we felt was missed out of the bill and was missed by the select committee and we raise it here. The Law Commission proposed a dual response to intimate covert filming. It proposed that legislation should firstly criminalise the conduct and secondly ensure a remedy for victims through the Privacy Act. The Maori Party agrees wholeheartedly with that focus. The commission even recommended amendments to provide remedies for victims but this bill has completely missed out those amendments. The explanatory note of the bill states: “sentences requiring reparation will also ensure that the victims will receive some compensation for the harm they have endured.” yet oddly enough such compensation is not provided for at all in the bill. This bill also carries a penalty of 1 year in jail for possessing such material. We have to ask with so much attention being paid to the nitty-gritty why there is no detail on how to respond to the needs of those who have been victimised. It seems that this bill has been put together with the same piecemeal and ad hoc approach that we have seen with other bills put before the House this year. 
This bill also raises the question of who is watching the watchdogs. I note that if a person is with the Police the Customs Service the SIS or the Department of Corrections and he or she wants to do some snooping in relation to legal proceedings this bill protects that person as long as he or she clearly records the reason for snooping does it only during relevant times and restricts it to small areas gathers only relevant information and does not film in toilets or washrooms. That is the plan. The Maori Party also supports the idea of trying to keep controls on the watchdogs. We supported the Crimes of Torture Amendment Bill in order to tighten up the running of our jails and to prevent the abuse of power so we certainly do not want to create opportunities for an abuse of power in this bill.  
We hark back to the images that once reduced our women to the exotic innocent natives of the early 1900s as a reminder of why we should support this bill. With the advent of cellphones micro-cameras digital streaming Internet service providers and other mediums of electronic recording and storage the publishing and sale of such recordings to the voyeurs of the world has blown right out of control. We are disgusted at the practice and we are disturbed that those who endure the humiliation and shame of such an invasion of their privacy are not being compensated properly. We recommend further work be done to ensure their needs are met and we urge this House not to wait another 100 years before such victims can receive the justice they are due. Kia ora tatou katoa. 
Bill read a third time.