Curran Clare: Objectionable Publications and Indecency Legislation Bill — In CommitteeText is incorporated into the Bound VolumeCurran Clare: Objectionable Publications and Indecency Legislation Bill — In Committee[Sitting date: 31 March 2015. Volume:704;Page:2759. Text is incorporated into the Bound Volume.]CLARE CURRAN (Labour—Dunedin South): Thank you for the chance to have a call in the Committee stage of the Objectionable Publications and Indecency Legislation Bill. I did not sit on the Justice and Electoral Committee which heard the submissions on this bill but I have spoken in all stages of the debate so far. Labour is supporting this bill but there are some particular issues of concern that I will speak to and I will echo some of the comments made by my colleague Jacinda Ardern who spoke before me around three particular issues. One is around the lack of an overarching strategy within which this bill fits—an overarching strategy on a number of levels actually because it is a strategy that deals with children and the abuse of children and the way that the abuse of children is perpetuated online as well as in the physical environment. Unfortunately we have another bill before the House at the moment the Harmful Digital Communications Bill which was to all intents and purposes developed in isolation or in a separate way and there are questions around how these bills mesh and how the issues that they raise align. That is one of the issues—around the lack of an overarching strategy.The other one is particularly around how laws that are created that have an impact on the online environment actually align with laws in the physical environment. This is a particular concern of mine. You would have heard me speak about this on a number of occasions around the precedents that are being established without what I consider to be a really thoughtful process that has actually allowed the real consideration of some of the impacts. Although I applaud the Minister’s intent around addressing these issues I seek—and I guess plead—for the Government to actually take a little bit more care when putting pieces of legislation in front of us that actually create offences in an online environment that do not necessarily mirror or are not proportional to the actual physical enactment of the abuse. There is a difference but there is also an alignment. I suspect that what we are going to see—and we are already hearing this—is concern from the judiciary and concern from the legal community particularly around some of the lack of thought that has gone into these things.I also want to talk to clauses 4 and 5 around increased penalties and also around the possession of electronic publications. The specific issue that I want to focus on is the increasing of penalties and the question that was raised by a number of submitters around whether or not this would act as a deterrent. The increase in penalties that this bill enacts includes an increase in the maximum penalty for the possession importing and exporting of an objectionable publication from 5 years’ imprisonment to 10 years’ imprisonment. So that is a doubling of the penalty. The maximum penalty for the supply distribution or making of an objectionable publication is increased from 10 years’ imprisonment to 14 years’ imprisonment.There were concerns raised at the select committee by the Dunedin Community Law Centre—the good old Dunedin Community Law Centre which submits on many pieces of legislation—and the Salvation Army. Both pointed out that increasing the penalties for objectionable publications offences could distort relativity with other offences by treating some physical offending as being less serious than the depiction of that same offending. I know that my colleague Jacinda Ardern touched on this as well. The Salvation Army submitted that this created an anomaly as physical crimes should be punished more severely than objectionable publications offences and the Dunedin Community Law Centre suggested that this may send the wrong message to those who are physically abusing children.I want to be quite clear here that in principle I do not have an objection to the increasing of penalties for the abuse of children in any environment whether it be online or physical as long as there is due care taken to ensure that the relativities in terms of the kind of abuse are maintained and that there is not the suggestion that one form of abuse—a physical form of abuse—is somehow being diminished in the process. I think that was the point that was being made by those two submitters. In fact the regulatory impact statement itself raised this issue and said that “it is difficult to predict the effect of an increase in the maximum penalty for an offence.” and it gave a range of reasons for that and gave some evidence around the number of people who had been convicted: “In the 8 year period between 2004 and 2011 393 people were convicted of an objectionable publication offence.” Of them 33 percent were sentenced to a term of imprisonment. Of that 33 percent 40 percent of fewer than I think 14 cases actually received a term of imprisonment that was less than 40 percent of the maximum available sentence. The regulatory impact statement pointed out that “There are also low rates of recidivism. During the 10 year period … only 8 people were convicted of a repeat objectionable publication offence.”I guess that my question is—and I refer back to the Salvation Army’s submission on this bill: it questioned whether the increased sentences will actually work as a deterrent and it submitted that this should be closely monitored. So I have a question for the Minister of Justice and I hope that she does take a call. The question is: what is the process for that monitoring to take place? Is it included in the strategy around this legislation and will we be seeing close monitoring of that? We are not opposing this measure but we are asking for some further clarification around it.Turning quickly to the offence of possessing an electronic publication as my colleague Jacinda Ardern said the Films Videos and Publications Classification Act is amended to provide that possession includes intentionally viewing without knowingly downloading or saving. This is a very new provision. So you can receive it and if you are looking at it—you do not have to download it and you do not have to save it—by the mere act of seeing it intentionally you are committing a crime. I think this is an interesting part of the bill. I raise that because this is the part of bill that is about updating for modern technology where we really are looking at the way people are using technology and what that is doing to impact on the legislation that is coming before us. Again the submissions before the select committee covered this part of the bill quite considerably and really did have good look at it. I think that there was a considerable amount of discussion within the select committee and also by the officials which gave it quite a lot of attention to ensure that it aligns with common law under which possession of objectionable material includes intentionally viewing.