Locke Keith: Films Videos and Publications Classification  Amendment Bill — Second Reading 
Locke Keith: Films Videos and Publications Classification  Amendment Bill — Second Reading 
[Volume:623;Page:18438] 
KEITH LOCKE (Green) 
: 
 The Green Party will support this bill and the positive changes to enable us to deal more effectively with child pornography. However the Greens are sickened by today’s bidding war between ACT and Labour to see who can have the longest sentences. It is bad enough when Labour moves to the right in order to try to take National’s ground but it is even worse when it tries to take ACT’s ground. Under the bill at present the maximum penalty for possession of objectionable material moves from a fine to 2 years in prison. Surely that is enough; it is absurd to move it to 5 years. At 1.30 this afternoon Deborah Coddington issued a press release calling for 5 years. Four hours later Mr Goff fell into line. Surely our prime target is the actual pornographers: the people who force children into sexual activity and make money out of distributing images of that activity. They will be hard hit by this bill with a maximum of 10 years in jail. But why bump up the penalties for simple possession of objectionable material to 5 years? 
One of the problems with this bill in areas that relate to the possession of child pornography is that it extends the definition to images of “young persons who are nude or partially nude” where the images are “reasonably capable of being regarded as sexual in nature”. That definition as the Law Society pointed out in its submission is very loose. The Society of Authors stated: “Under this bill it is conceivable that many major works of art particularly those from the high Renaissance could be seen as objectionable because they depict naked infants often cherubic in a way that the censor might deem to be sexual.” Recently there has been a debate about the images in Germaine Greer’s book  
The Boy 
 with Ms Greer asking why women should not enjoy looking at images of boys as beautiful images rather than pornographic images. It is very hard for the community to come to a general consensus on where to draw the line between what may be beautiful or artistic and what may be pornographic. The issues are very controversial. 
This bill makes drawing that line even more difficult because it is not just talking about nude images but also “partially” nude ones. In discussing that problem the Law Society said that that could mean we would have to ban many of the music videos on TV that are currently running on three music channels. They are often videos of under-18-year-olds with bare midriffs dancing around and projecting some degree of sexuality. It would be much better to use the more restricted definition of child pornography in the optional protocol of the convention on the rights of the child as the Society of Authors suggested in its submission. That defines child pornography as representations of children engaged in “real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes.” 
 We want to get at the real child pornographers and any heavy penalties should go on them. Instead as many submitters to the Government Administration Committee complained the new 10-year sentence is not confined to child pornographers but potentially applies to anyone sending out “objectionable” material across the whole field of censorship in the Act which is worded as “sex horror crime cruelty and violence.” Let us look at some of the silliness and inconsistency that that broad application of the 10-year maximum sentence across all offensive materials could produce. For example last April the censors gave an objectionable rating to an imported magazine called  
Cannabis Culture 
 on the basis of its “treatment of matters of crime namely the cultivation and use of cannabis.” Freely distributing a magazine on the cultivation of cannabis particularly to those 18 years and under could under this new law being proposed today land one in jail for 10 years. Yet the maximum penalty for actually cultivating cannabis is 8 years. So somebody forwarding an email on the cultivation of cannabis to a few friends has the potential of being given a longer prison sentence than someone with a big marijuana plantation. 
I mentioned the person emailing material on cannabis as an introduction to the broader problem of censoring Internet communications. That does not mean that we should not punish those who use the Internet to trade in child pornography; of course we should. But if we are looking generally at objectionable material as this bill is with “objectionable” being defined rather loosely then email and Internet policing poses some problems and the wrong people could get nailed. One problem particularly when dealing with possession rather than trading offences is that computer users often do not know what they are downloading or what is in attachments. In this bill for the more serious convictions for possession the prosecution has to prove the possessor had knowledge of the material. But in several places in the legislation there is what is called a strict liability regime or an absolute liability regime for possession where people cannot use as a defence that they did not know what was in the email or the attachment. If they did find out what the material was once they opened it up and then deleted it they still may get done because forensic tests can check out what was on their system prior to deletion. The absolute liability regime for possession might have been OK pre the Internet when dealing with picture books and videos because it is hard to buy a picture book without knowing pretty much what is in it. 
The new Internet problem was dealt with by the select committee in some respect in that the Internet Service Providers Association submitted that Internet service providers obviously cannot check everything that goes through their computers. So Internet service providers and telecommunication operators were let off the hook by the select committee. However we still have the problem of individual computer users potentially being done for images they did not know about be it for pornography or for going beyond that to various other inflammatory or objectionable written material that may be in people’s incoming emails attachments or stuff they download. It could be inflammatory objectionable material that the computer user may have had no real chance to check out fully or assess. We could get considerable inconsistencies here where the judgments as to whether to prosecute for Internet communications could be exercised by Department of Internal Affairs staff or by the police maybe with less and less reference to the Office of Film and Literature Classification. There is under the law an ability for defendants to refer things to that office but in practice that will happen rarely with defendants being scared of what is happening and often being involved in plea-bargaining directly with the police. We should be a bit frightened about what the police judgments may be following their attempt to prosecute Aucklander Bruce Hubbard for an email that referred to the American Government “napalming babies” in Iraq. That offended the American Embassy which received the email and Mr Hubbard was prosecuted although the prosecution was later dropped after a public outcry. 
The Internet and now cellphones are such open ways of communication with billions of messages and images zooming to and fro that it would be silly for the censorship authorities to be chasing everywhere and filtering everything. There will be a lot of objectionable material circulating and we do not want to imitate Governments such as that of China with its draconian Internet controls. The only real control is to become a more ethically responsible society and of course to go after the very worst offenders such as the serious child pornography traders. We do not want to have a huge censorship section in the Department of Internal Affairs or the police. I do think it is useful for the Office of Film and Literature Classification to have the ability to put an age restriction on offensive language and material although there have to be the cautions that Stephen Franks referred to. But we also want to take a bit of work off the office and put into effect some of the submissions by the Alice in Videoland shop and the film festival organisers that there could be ways of cross-rating material from other authorities rather than going through time-consuming systems.