Tanczos Nandor: Crimes (Intimate Covert Filming) Amendment Bill — First Reading 
Tanczos Nandor: Crimes (Intimate Covert Filming) Amendment Bill — First Reading 
[Volume:625;Page:20328] 
NANDOR TANCZOS (Green) 
: 
 I rise to speak on behalf of the Green Party and to say that the Green Party will support this bill certainly to select committee and we would expect to continue that support because we think this is an issue of some concern. Clearly the development of new technology has made opportunities for intimate covert filming much more numerous. An obvious example is the widespread use of cellphones with cameras and with video ability. The  
New Zealand Herald  
recently ran an advertisement selling very cheaply very small digital cameras that would probably be perfect for that kind of activity. So the mechanisms to do that kind of thing are widespread and it is clearly becoming more of a concern. Just today I was speaking to a member of the public who asked me what was going on in the House. I mentioned this bill and that person came up with a story about being the subject of unwanted and invasive photography. 
So I think it is quite a significant problem but that is not to say that we do not have some concerns about the bill. Hopefully they can be addressed at the select committee. 
I think some of the concerns of members who have previously spoken may have been exaggerated or are easily fixed. Peter Brown talked about the situation in Australia where parents are more or less forbidden to take photos of their children in swimsuits. I know that the member was looking for things to say but it seems a bit irrelevant to this bill. One of the points of the bill is that the recording is done without the knowledge or consent of the person. 
Stephen Franks 
: What about babies in the bath? There is no exclusion for that. Everyone takes photos of their baby in the bath. 
NANDOR TANCZOS 
: I have taken photos of my baby in the bath but I would say that it is with both her knowledge and her consent as far as a 2-year-old can give consent. I do not think that those things are really of great moment. 
Something that perhaps makes me more concerned is new section 216H “Prohibition on making intimate visual recording” inserted by clause 3. It states: “Everyone is liable to imprisonment for a term not exceeding 3 years who intentionally or recklessly makes an intimate visual recording of another person.” The use of the word “recklessly” concerns me. “Intentionally” is something that is quite straightforward but “recklessly” is a much more difficult term. It is the kind of term used for example in anti-terrorist legislation. It seems particularly excessive in legislation like this. 
Mr Franks raised the concern around for example security cameras that might inadvertently pick up people engaged in intimate sexual activity. 
Stephen Franks 
: Bonking. 
NANDOR TANCZOS 
: “Bonking” the member says. I think that that is a concern. Is it “reckless” to make such a recording? I think there is an argument to be made there. One of the ways to fix that is simply to remove that term “reckless” and to confine the provision’s application to people who intentionally make an intimate visual recording. That is something I hope the select committee will look at. I do not know that it would solve the problem for the private investigators that Mr Franks mentioned but I am not sure whether they do that in reality in this country or whether it is just a figment of Hollywood’s imagination. If they do I do not know that they should be allowed to do it anyway. We will not worry too much about that. 
The other provision that worries me is new section 216J “Prohibition on publishing importing exporting or selling intimate visual recording” inserted by clause 3. I am a bit concerned about the prohibition on importing. Somebody would be liable to a prison term not exceeding 3 years. The provision relates to commercial gain around those activities and is distinct from simple possession charges which have a maximum term of 1 year. This provision covers the more serious offences and includes importing. Does that include the downloading—which theoretically is importing—of an image from a computer? It could be an image held on a server in perhaps the United States or some other country. Is it importing to download that to a computer in this country? There has been a great deal of ambiguity introduced into the question of whether downloading is importing because of some of the anti-terrorist legislation. That is a real concern. It means that someone may be subject to the more serious conviction even though in reality it is simply a possession offence. 
The other thing that is even more innocuous is that an enormous number of paparazzi celebrity magazines are available particularly in other countries—we are not quite so excessive in our regard for celebrities in this country. We can just open up the  
Woman’s Day 
—which I occasionally see in the doctor’s waiting room—and see photos of topless celebrities on the beach or in their apartment in some French Riviera estate or something. Does that mean that the people who import  
Woman’s Day 
 become liable to that charge? If I imported a paparazzi magazine from the United States that had something of that nature would that make me liable to 3 years in prison? It seems quite excessive. It does not seem proportional and it does not seem to be in tune with the stated intention of the bill. I think we need to have a really careful look around the importing of visual recording. 
My other point relates to section 216M “Protection from liability” inserted by clause 3. Mr Franks raised this point; again it is something that we share. The provision mentions various agents of the State—police customs officers secret service employees lawyers and the like. A person who is subject to the provision is protected from liability as is “any other person of a prescribed class.” I am not exactly sure what that means but it seems to me that there are people who are not necessarily State agents who should be protected from liability. The subject of the recording may well for some purpose that I do not necessarily know wish to send it to someone else who is not his or her lawyer. If the subject gives that recording to someone else that person would still be liable as having committed an offence. It may be that my partner was the subject of such a thing and that she showed it to me because she wanted to share with me the hurt of it. That would immediately make me liable to a year in prison for possession. That seems to me to be quite wrong and I would have thought that if the subject gave that recording to someone that should be a protection from liability. 
The other thing I will mention is section 216M(3) inserted by clause 3 whereby people are protected from liability if a recording is made “for the purpose of or in the course of carrying out” functions. That is something Peter Brown touched on. Law enforcement agents who do something for the purpose of enforcement activities should be protected from liability but “in the course of” is quite a different thing. That is actually very broad and I think that in light of the pornography scandal going on in the police at the moment members of the public would be extremely concerned about any opportunities for that to lead to abuse. For the provision simply to state: “in the course of” lawful activity is perhaps broader than saying: “for the purpose of” and that is something we need to look at as well. 
I am somewhat comforted by section 216M(7) which states that any recording so made must be immediately destroyed or made available to the person who is the subject of it. That provides a bit of protection but I still think we need to look at where that protection from liability for agents of the State starts and ends. There is still potential for abuse by an officer who is so minded. If one has a warrant to do surveillance of a house for example maybe one could say that it is in the course of activity to put a camera in the bathroom—but is it necessary? That distinction does not seem to be clear in the bill and it is something the Greens think should be looked at. So the Greens think that a number of issues and concerns need to be tidied up by the select committee but in general we support the purpose of it and we look forward to working through it at the select committee.