Ardern Jacinda: Objectionable Publications and Indecency Legislation Bill — In CommitteeText is incorporated into the Bound VolumeArdern Jacinda: Objectionable Publications and Indecency Legislation Bill — In Committee[Sitting date: 31 March 2015. Volume:704;Page:2757. Text is incorporated into the Bound Volume.]JACINDA ARDERN (Labour): It is my pleasure to take a call on the Objectionable Publications and Indecency Legislation Bill. I am glad that the Minister of Justice will be in the chair for the debate around Part 1 and also around Supplementary Order Paper 67 one of the recent Supplementary Order Papers that has been tabled in her name. I want to focus firstly on the substantive clauses within Part 1 which make the most significant changes to this bill. Before I do though I want to make the general comment that these are amendments to a piece of legislation that has a broader scope than simply objectionable material as it relates to children. I think that there has been some discussion perhaps even within the Justice and Electoral Committee but certainly within our party over the need for an overall strategy when dealing with objectionable material child exploitation and so on as it relates to children. It feels like this is a piecemeal approach to what is a much wider and very substantive issue but that is just a contextual point that I wanted to make before getting into some of the details of this bill.I will start by looking at clause 4 of the bill which amends section 124 and relates to offences involving knowledge in relation to objectionable material. This is the first clause that alters the penalty regime for essentially the supply distribution or the making of objectionable material by way of exportation from New Zealand. I think the point that it is important to make here isthat as I said in my introductory comments because this legislation is an amendment to the Films Videos and Publications Classification Act there is a fairly wide interpretation around the term “objectionable”. The reason that that is important is that to most people’s minds and certainly when the select committee was considering this the effect on children is the primary consideration. So when the committee decided that it was right that a maximum term of imprisonment for an offence involving the supply and creation of objectionable material involving children would move to 14 years that is whom they had in their minds at that time. But as the select committee I think rightly pointed out—because we do not have specific child exploitation offences the term “objectionable” is still relatively open and up to the discretion of the Film and Literature Classification office. There was a bit of a debate at the select committee level as to whether or not actually we should be dealing with a separate piece of legislation or whether leaving that discretion around “objectionable” was the right way to go.I think that probably the point that the select committee made that is of the most relevance is that it becomes very difficult then if you are creating separate legislation that applies just to children to determine where you draw that line. For instance would you say that “objectionable” would mean anything that was exploitative as it related to a young person which means that you would probably go from 14 to 17 years or would you say simply a child which therefore under existing definitions would take you only to the age of 14? You start then having to get into some of those arbitrary lines. I think the example that was raised by the select committee was that for example it could be argued that material depicting sexual violence against women also warrants higher penalties. So I certainly understand the justification of the select committee for leaving it somewhat open-ended in terms of determining what is objectionable and just allowing penalties to be as consistent as they can be. I think it is slightly disappointing though that we do not for instance have a body like a Sentencing Council that would be able to ensure that we have consistency in the application or the determination of what that definition of what objectionable is and whether or not those maximum penalties are being used appropriately or as Parliament intended. We come time and time again in the House to examples where I think a Sentencing Council would really prove its worth and I think this is another example. Given that we are allowing that discretion it would have been useful.I also would like to ask the Minister in the chair—if we are not going to be as definitive as to point out “child” within the definition of objectionable—whether or not it was considered that embedding that as an aggravating factor at the point of sentencing was another way that perhaps you could create that point of difference in the legislation. I would be interested to know whether that was ever considered because that might have been an elegant way to deal with some of those definition issues. I am also interested in how many cases we know have fallen into the category of perhaps being objectionable but not relating to children—how broadly is that definition applied for this penalty regime? I think that might have been information provided at the select committee which would be useful.The other issue that the select committee raised was whether in raising the penalty regime from 10 to 14 years we then get into a situation where the supply or creation of material actually becomes a higher penalty regime than for instance physical assault against a child—making sure we have that consistency in the legislation. It is a very important point to make. If you take a quick example from the Crimes Act sexual conduct with a child under 12 has a term not exceeding 14 years. Again I think it is important to make sure that we have rules that are consistent. Again I think the likes of a Sentencing Council would have been in the position to take a broader view as to whether or not we have got a proportionate response in every element of the law as it relates to the abuse and exploitation of children. In and of its own right of course anyone looking at this law would say “Yes it is right to have those maximum penalties lifted” and we would agree with that but I think it is important that we make sure that the other offences that relate to harm to children keep pace with the expectations of Parliament as well. And again it is hard to do that from within Parliament and so a Sentencing Council would have proved its worth there.Clause 5—these are the new subsections that talk about possession of an electronic publication. A really important point here is that obviously the drafting has very particularly made sure that you do not have to have material literally saved on to your device in order for it to be considered possession. I think that it is incredibly important that we make sure that we are really clear on what possession is considered to be. I understand that there was a case which I think was the rationale for making sure that this was stepped out very clearly—Meyrick v Police. I believe that was a case that actually involved an ex - police officer if I am correct in possession of objectionable material. I found it hard finding some substance around that case. If the Minister was willing to speak to how the bill is now in alignment with the outcome of that case I would be very interested because I found it hard to find details online.Clause 6 though—I wanted to come to that because that relates to offences of possession. So it is not just the supply penalty regime that we are increasing but also possession and it makes sense that if you are lifting one you would consider lifting the other. We are looking at amendments now that will increase the maximum available term from 5 years’ imprisonment to 10 years. Again keeping alignment with other regimes I think is incredibly important but from the select committee report it does not seem to be the main concern out of all things that the select committee has raised.Some concern however was raised on new section 132B to be inserted in the Films Videos and Publications Classification Act by clause 7. This section sets out a specific expectation that if there is a repeat offence the presumption from the court will be to hand down a jail-based sentence. You can absolutely understand why there would be the view that we would need to send a strong signal. We are talking about a very specific classification of offending. There are some principles that apply to this type of offending that are specific to child exploitation and the circulation of objectionable material.