Films, Videos, and Publications Classification Amendment Bill – Third Reading

The Green Party will be voting for the Films, Videos, and Publications Classification Amendment Bill. However, we think it could have been a much better bill.

The increased penalties in the bill should have been targeted at those who are involved in child pornography – that is, the sentences should have been applied to child pornographers rather than to people who might possess other types of objectionable publications. This is why the Law Society suggested – and it could easily have been done – that we increase the penalties for trading, exhibiting, and possessing child pornography, not for possessing or trading all other types of objectionable publications.

Now everyone is subject to the maximum sentences of 10 years in jail for circulating any type of objectionable material, and 5 years in jail for possession. The public would have been confused by what they read this morning in some newspapers, which reported that the maximum penalty for possessing child pornography had been increased to 5 years’ imprisonment. In fact, there was no mention whatsoever of child pornography in the relevant amendment put to the House last night.

The 5-year maximum term applies to every single type of objectionable material, which is why the Greens voted against that amendment. In explaining our vote, we said that we opposed the amendment because the House had not done as the Law Society suggested and separated out the higher-end penalty specifically for child pornography. There has been an incredible increase in the maximum penalty for possessing any type of objectionable publication.

This application to all objectionable publications could be dangerous, particularly in these days of the Internet. This is where I think many New Zealanders need to get very worried. I am not talking about child pornography; I am talking specifically about all the other objectionable things that circulate on the Internet – material with offensive language, pornography other than child pornography, and “how to” guides to doing anything that is currently illegal. The censor has declared, for example, that having a guide to cultivating marijuana is illegal.

Ordinary New Zealanders get a lot of different types of objectionable material through their email, through email attachments, accidentally downloaded from the Internet, or downloaded by others who happen to live in the same house and use the same computer. We all know that teenagers are often overly inquisitive and that, as Steve Chadwick, the Labour promoter of this bill, has just said, it is “very, very easy to trip over” this sort of stuff.

Under the amendment passed last night, where previously a person would have been eligible for a $2,000 fine for having such material on his or her computer, that person can now be thrown into jail for 5 years. Admittedly, there now has to be “reasonable cause to believe” that that person actually knew that the stuff was on his or her computer, but it might be hard to prove that he or she did not know. People process their emails and Internet downloads very quickly. They do not take into their brains all the contents, or catch on that some of the stuff they flick through very quickly could be defined as objectionable and thus illegal, and that they could be put in jail for 5 years because it is still sitting on their computer.

Who determines whether the material on one’s computer is objectionable? It is the police and the Department of Internal Affairs, in the main, particularly when dealing with computers, not the censorship authority – although the censorship authority could be brought in as part of a defence against the police in court. We cannot always trust the police to get it right.

This is the same police force that, a couple of years ago, prosecuted Aucklander Bruce Hubbard for sending an email to the American Embassy accusing the American Government of “napalming babies” in Iraq. The police were absolutely clear that those two words – “napalming babies” – were objectionable and justified prosecution, although under pressure they later dropped the charges. This is the same police force that tried to censor Ahmed Zaoui, saying when he arrived here that he could not be allowed access to the media in case he got support for his cause.

Admittedly, the police and the censorship authorities are generally much better than they were in the past. However, when constructing legislation and bringing in harsh penalties, we have to bear in mind how those penalties could be used by a more repressive Government in the future – a Government that gets the police force, the Department of Internal Affairs, and the censorship body to act more harshly.

In 1989 the Department of Internal Affairs put out a book called Censored: A Short History of Censorship in New Zealand, detailing a long legacy of political censorship in this country. The Labour politicians who in this legislation are pushing through high maximum sentences for all objectionable material, including politically objectionable material, would do well to read this book – to read about the way the Labour Party has suffered from political censorship in the past.

In the past, publications circulated by Labour politicians were censored. Walter Nash, later a Prime Minister, who was a left-wing book seller before he became a politician, had a lot of trouble with censored radical books. In the 1930s, socialists were jailed for possessing banned books.

All sorts of films have been banned over the years –

The Wild One

starring Marlon Brando and

Last Tango in Paris

, etc.- we might laugh about that today. In 1967 the censor judged the film


to be “an embarrassment for mixed company to view” and ordered that audiences be segregated into male and female.

In 1972 Germaine Greer was convicted for using the word “bullshit”. In reality, at various times Governments like to use political scares to make people fearful, in order to get them to support the Government. There have been numerous scares in New Zealand over the years – scares about the “Red Fed” unionists early last century, scares about The Labour Party destroying the country in the 1920s and 1930s, scares about socialists and communists, and, most recently, scares about Islamic extremists. In all these scares, censorship has been applied to the targets.

Currently in Britain the biggest case concerns an Islamic extremist called Abu Hamza al-Masri, who has been charged with possessing certain documents, videotapes, and audiotapes, and may be subject to penalties. The views he expresses in those documents, videotapes, etc. are often distasteful. Some of it is what we might call “hate speech”.

The Minister says that hate speech will be dealt with further down the track, but the reality is that if this legislation later includes hate speech, that offence will be covered under the harsh new penalties of 5 and 10 years’ imprisonment; so it is part of this debate. We could get the situation where, if Destiny New Zealand circulates certain emails to its members, hundreds of people could be subject to 5 years in jail for possessing objectionable publications. That is a possibility.

I moved an amendment yesterday to try to make the definition of child pornography in the bill more consistent. Clause 4, “Meaning of objectionable”, specifies images of “nude or partially nude” children that can reasonably be regarded as being sexual in nature. That is too broad for us to go along with, because it could be used against people who simply possess naked images. It is very hard to distinguish, using that definition, between what is truly child pornography and what is not.

The solution I offered, which was supported by a number of parties in the House but unfortunately not by the Government, was the obvious one of just using a definition from elsewhere in the bill. The definition used where the bill talks about extraterritorial jurisdiction for child pornography offences is a much better one. It states: “child pornography means. . . a representation, by any means, of a person who is or appears to be under 18 years of age engaged in real or simulated explicit sexual activities; or. . . a representation of the sexual parts of a person of that kind for primarily sexual purposes. . .”

Why not be consistent in this respect? Why do we have to create a problem whereby we might ban Germaine Greer’s book

The Boy

because it has a lot of images of boys. She says not only that they are artistic but also that she gains pleasure from looking at them, but she is not talking about the kind of pleasure of someone who is involved in child pornography. We do not want to get into a situation where we are overly censoring simply naked images. That is why I moved the amendment.

As I said at the beginning of my speech, the Green Party supports this bill overall and we will be voting for its third reading. But we will continue to be concerned about, and to argue against, the censorship implications of the bill beyond the question of child pornography.