Legal Beagle by Graeme Edgeler

3

The Government's Proposed Decriminalisation of Racist Hate Speech

In what will hopefully be the first of the number of posts on the government’s hate speech proposals, I have a look at what they actually cover. You may have guessed from the title of this piece that there is some confusion. Certainly, the government is still working through the details, with a public consultation process having just started. But some aspects of the proposal have been under-explained, so here’s a Q&A to kick things off. 

What’s this about hate speech?

The New Zealand Government has released has public discussion document around proposals to reform the two hate speech provisions in the Human Rights Act. The proposals have been well-signalled, with the Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain containing some of the discussion around changes that it thought should be made.

Before we get to the changes, what are the current laws?

New Zealand has a number of general laws that can be used to prosecute what is sometimes called hate speech, including laws against disorderly and offensive conduct language, against harmful digital communications, and for particularly serious speech, censorship legislation.

This proposal doesn’t alter these laws. It addresses two laws in the Human Rights Act 1993: one a criminal offence and the other a civil claim (like defamation).

Tell me about the current criminal law.

Section 131 of the Human Rights Act creates a criminal offence if you do some combination of the following five things:

  • publish written material, or use words in a public place (you need one of these)
  • if those words are threatening, abusive or insulting (you need one of these)
  • And those words that are likely to
    • excite hostility; or
    • or excite ill-will against; or
    • or bring into contempt; or
    • or bring into ridicule
      (and one of these)
  • And that excitation or bringing is against a group of persons in New Zealand on the ground of their colour, or race, or ethnic or national origins (and one of these).
  • And you intend those words to excite hostility; or to excite ill-will against; or bring into contempt; or bring into ridicule such a group of person (and one of these).

Do one option from each of these things above, and you have committed an offence for which Police can prosecute you. If convicted you can be imprisoned for up to three months, or fined up to $7000. No-one has ever been prosecuted for this in New Zealand, although there was one prosecution under the similar offence under the law that the Human Rights Act replaced.

Importantly, this offence covers speech about groups. Speech directed at individuals mostly isn't covered by this law, nor by the proposals for change. If you are looking for legislation to deal with things like racist or otherwise bigoted street harassment, this is not it.

And the Government is looking at expanding this criminal offence?

No. Also yes, but mostly no. The Government is proposing to decriminalise most of this speech. Under the Government’s proposal, what replaced this criminal offence would not make it criminal to excite hostility against say a race using threatening, abusing or insulting words, it it would not be criminal to excite ill-will against them, nor to bring them into contempt, nor to bring them into ridicule.

It would only be criminal to publish written material or use words to stir up hatred against them. Both the Royal Commission and the Government consider this is less restrictive on freedom of expression. I am inclined to agree. The Royal Commission saw the current prohibitions as unjustified, and considered that criminalising only a small subset of especially harmful speech, likely to engender hatred, was justifiable, but they think the harm caused by that type of speech is worse than the law currently recognises.

Is that the only change planned to the criminal offence?

No, there is some proposed expansion of the law, so as well as increasing the standard to hatred, rather than lesser things like ridicule, and changing the verb from excite (which the Royal Commission noted is somewhat archaic) to “stir up or maintain”, the Government is looking at moving the crime to the Crimes Act and increasing the penalty to three years imprisonment (both to recognise its seriousness), and this is the big change: bringing in other protected grounds (like religion, sex and gender, and possibly all of the other grounds of discrimination in the Human Rights Act).

Is including other grounds of discriminatin what opponents are concerned about?

I think so. There are other concerns, about enforcement, about clarity, and about possible changes in culture, but if we're talking about opposition to the proposed legislative change, most of it has focused on that final bit: extending the protections of hate speech to other classes like religion, and gender expression.

The proposed extension of the criminal offence (and the civil process to other grounds of discrimination) has some opponents worried that political or religious criticism may become fraught (would the Jyllands-Posten Muhammad cartoons be illegal; would Israel Folau’s Facebook paraphrase of Paul’s letter to the Galations?), or that people may be arrested and charged for relatively minor offence (eg misgendering). They’re aware of some things that have happened in other countries, primarily the United Kingdom, such as the 16-year-old who was arrested (but not charged) for having a placard that said “Scientology is a dangerous cult”). They don’t want to risk that happen here.

Does the proposed law cover that?

I don’t think so, but I’d be more confident in that conclusion if the Government was clearer about its intentions. The Government seems very open to the idea– despite what the Royal Commission said about reducing what is actually prohibited – that things like these might be prohibited. When recently interviewed by Tova O’Brien on The Nation, the Minister of Justice was reluctant to comment on a range of hypotheticals. The Government should be answering questions like this.

What about the other changes being looked at?

The proposal suggests that the current process for civil liability should have similar changes – although it is possible that civil liability would remain for not only hatred-engendering speech, but also lesser things like incitement to ridicule or contempt.

They would also extend the provisions around civil liability to include incitement to discriminate. Discrimination is already illegal (people can be sued for discriminating against others), this proposal would extend civil liability to those who encourage such discrimination.

The Government has also announced its intention to clarify the grounds of discrimination to include trans, gender diverse and intersex people (it is generally agreed that they are already protected under the prohibition against sex discrimination, but this would make it explicit).

The proposal would also make the the laws technologically neutral, as it is not clear, for example, that online publications are currently covered.

What next?

The Ministry of Justice has commenced a public engagement process on the Proposals against incitement of hatred and discrimination. Members of the public can have their say until Friday 6 August 2021.

And that covers the change you talk about above?

Yes. And some of the detail too, although this is pre-legislation consultation, so we aren't being consulted on a bill, like we would at a select committee. That will come later.

You can engage with the consultation process here.

What concerns remain? Why would someone oppose this law?

I'm still not convinced, and I hope to cover this in more details in future posts, but a big reason to oppose a change like this is the same reason to oppose any expansion of the criminal law. Imprisoning people is really harmful. Convicting people is really harmful. Prosecuting them is harmful. Being arrested, and even just being visited by police is harmful. If you are a person sympathetic toward the prison abolition movement, there are major red flags here. There are also all of the standard concerns about the focus of police discretion. Will those charged under this law be disproportionately brown, or  poor, like with most other laws?

The most obvious concern is that the Government has not been clear about what it thinks the law will actually ban, and worryingly the Minister of Justice doesn’t seem to think he has a role in deciding what types of things this law would make illegal, nor more importantly, what types of things it would not make illegal.

In particular, the Government doesn’t appear to understand, and has never seemed to articulate what I described above – that its proposal as currently articulated (and as explained by the Royal Commission) decriminalises a bunch of currently criminal speech. It knows it is extending protections to cover other grounds of discrimination, but hasn’t grasped its proposal would move regulation of some sorts of hate speech that are currently prosecutable, to civil proceedings. And if the Government doesn’t realise this, and if the Government will not answer hypotheticals like those Tova O’Brien put to the Minister of Justice, people are right to be concerned.

There are some other issues to be considered too, but are perhaps more in the details.

One example from the discussion document is that it notes that “This proposal does not include the requirement that the communication must be “likely to” incite, maintain or normalise hatred. This exists in the both section 61 and 131 currently (and is not proposed to be removed from section 61). The Royal Commission did not think it was a necessary element of a new offence.”

The Ministry of Justice says it is interested in feedback on this, but the rationale for imposing criminal liability on someone based on the harm they are doing, should probably be connected to the harm they are doing. If someone's speech is not likely to incite, maintain or normalise hatred, can there be a justification for punishing them for inciting, maintaining or normalising hatred?

We'll get into the weeds later, but you can have your say here.

4

Submission on the counter-terrorism legislation bill (updated)

I have amended my submission (thank you to linger for the typo spotting). It still isn't as full as I'd like (I don't really address the new terrorist training offences), but hopefully my submission on the Counter-Terrorism Lgislation Bill will still be useful. Hopefully others (perhaps the Free Speech Union?) will have had the time to address the general principles around control orders in particular.

I am particularly concerned that some of the changes haven't been publicly justified by the government, leaving me to wonder that the law change might be aimed at using terrorism laws against people in the future like those arrested during operation 8. Maybe that would be justified - the government hasn't been that open about what it actually thinks occured there, but if that is the aim, I really think they ought to say so.

My submission, now updated, follows for anyone interested

=============

The Justice Committee

Counter-Terrorism Legislation Bill

Submission of Graeme Edgeler

Introduction

1. My name is Graeme Edgeler. I am a Wellington barrister with an interest in constitutional law.

2. I thank the committee for the opportunity to make a written submission on the Counter-Terrorism Legislation Bill and look forward to appearing in person to supplement it.

3. I regret that other commitments have limited the amount of time I have had to devote to assessing this bill, but I hope my short comments will nonetheless be useful to the Committee.

Summary of Submissions

4. My principal submission is that the Committee should be careful before recommending that some aspects of the bill proceed. That is, of course, a given, but I do not think that a public case has been made for some of the changes the bill would make to New Zealand’s terrorism laws.

5. The explanations that have been provided by the Government for changes to the terrorism offence in particular, are unconvincing. I invite the committee to seek a briefing, in private if necessary, of the problems that have been encountered that make the changes necessary and desirable, because the explanations given do not stack up with publicly available evidence.

Clause 6: Amended Definition of Terrorist Act

6. Clause 6 would amend section 5 of the Terrorism Suppression Act. The bill’s explanatory note states this amendment is to “update the definition of terrorist act to improve clarity.”

7. The bill does not do this. The current definition of terrorist act is entirely clear. It is certainly drafted narrowly, but that was the intention of the original legislation and has been carried through subsequent amendments.

8. The definition of terrorist act would change in several ways, including:

  • The requirement that terrorism be intended to induce terror in a civilian population is reduced to a requirement that fear is induced in a population.
  • The alternative that the act intend to “unduly compel” a government to take action has been replaced with the requirement that an act of terror seek to “coerce” government action.
  • Providing that actions that cause major damage to the national economy are covered, even if they fall short of devastating it.

9. These may be desirable changes, but section 5 as amended would be no clearer than the current law, which does not need clarification. Whether it needs widening is the question the Committee actually has before it. The proposed definition is relatively complex, but the amendment is equally as complex. The question then is: which is better?

10. The bill proposes not clarifying the definition of terrorism, but changing it, by widening it to include actions that fall short of the most serious actions that are covered by the current definition. This definition flows into all aspects of the legislation, making it easier to designate an organisation as a terrorist organisation, making it possible to prosecute people under counter-terrorism laws for actions that may previously have been illegal, but were not previously terrorism, and by widening what would otherwise be the scope of new offences.

11. There may be a case for this. If so, it is one that the Government has not made publicly.

12. I invite the Committee to seek a briefing on the reasons this change has been proposed. It is not, for example, a change that is required by new Security Council resolutions:

  • Have there been occasions where the Government has looked at prosecuting something as terrorism, but decided against because of the current definition?
  • Has the Government not acted to declare a particular organisation a terrorist entity when it would have preferred to have done so, but formed a view that it fell beyond the current law?
  • Has the Government’s proposed change arisen not because some action was not taken in New Zealand, but because of problems identified in other jurisdictions with similar definitions to New Zealand’s current definition?

13. I simply do not know. I submit that you should find out.

14. In the aftermath of the then Solicitor-General’s decision to decline permission to prosecute the those arrested during Operation 8 under terrorism laws, he described the application of the Terrorism Suppression Act to New Zealand as “incoherent and unworkable”. That also describes the current draft of the bill.

15. The issue in that case was different (around what counted as membership, not what counted as terrorism), but if this law change is designed with that offending in mind, and is intended to bring within the current and new terrorism offences actions like those alleged to have occurred in Te Uruwera, then the Government should say so. If not, and it is not intended to cover such conduct, explanations of why that is would also be welcome.

16. I lack sufficient information to know whether this amendment is necessary, or what it hopes to achieve that is not covered by our current definition of terrorism. I invite the Committee to enquire.

Clause 7: New definition of carrying out and facilitating terrorist acts, expansion of terrorist act offence

17. The major change this bill would make to terrorism laws is expanding the terrorist act offence. If amended it would cover committing terrorist acts as now, but also expand more explicitly to attempts (which are currently illegal through general principles of criminal law), and even to encompass preparatory fall short of the offence of attempting to commit a terrorist act.

18. There are two important matters to consider here: (1) whether it is appropriate to criminalise preparation for terrorism where that preparation falls short of an attempt; and (2) the appropriate legislative language to use to achieve any desired change.

Attempted Terrorism and Preparatory Acts

19. Attempted terrorism is already illegal. It covers situations where a person does some (or omits to do something) for the purpose of committing a terrorist act. It covers all manner of things, including for example, obtaining weapons. Of course, even in circumstances where preparatory actions fall short of constituting an attempt to commit a particular act, those preparations may still be criminal under other laws, including conspiracy laws, or depending on what is done, weapons charges, etc.

20. In general, merely preparatory acts are too remote to constitute an attempt under criminal laws, so a person walking around a city to consider possible targets would probably not be covered, while a stake out of a specific target to gain intelligence may be illegal as an attempt.

21. I can appreciate the rationale behind expanding the scope of counter-terrorism laws to more remote preparation, but caution the committee that it should be careful before supporting the expansion of the criminal law into this new area. Even with very serious offences such as murder we do not criminalise merely preparatory actions that are not of themselves illegal.

22. Whether it is appropriate to do so in this context is a question the committee will need to ask itself, but I am again left wondering whether the intention of this law is to make more seriously criminal the actions of people like those arrested in Te Uruwera.

Drafting of the new offence provisions

23. With respect, the amendments make a mess of a relatively simple aspect of the current law.

24. New section 5A creates a new definition of carrying out a terrorist act, that defines itself as existing, by including situations where it expressly says it doesn’t. This should be avoided.

25. I can appreciate the intention behind the changes but suggest a complete redraft. In addition to the current offence of engaging in a terrorist act, which the bill proposes changing to carrying out, there are also new offences around planning or preparing to engage in a terrorist act, and credible threats.

26. The complicated language and drafting appears to arise from a desire to include all terrorist act related offending within a concept of carrying out a terrorist act, even where there was in fact no carrying out. This makes the definitions incoherent, and the offences difficult to follow. Section 6 should retain a definition of terrorist act, but the criminal offences should be created as separate offence, each having its own section:

  • Section 6A should cover actually carrying out a terrorist act.
  • Section 6B should cover attempting to carry out a terrorist act.
  • Section 6C should cover making a credible threat.
  • Section 6D should cover planning and preparing for a terrorist act, where those actions fall short of an attempt.

27. Appropriate penalties, reflecting the relative seriousness of each, should be applied.

28. A distinct concern arises with respect to proposed new section 5A(1)(b), which expands the definition of terrorism to cover credible threats. In the terrorism context, the concept of credible threats encompasses more than the making of threats and can include circumstances where Police etc. are concerned that terrorism may occur.

29. Given the drafting of 5A(1)(b), it appears it might cover situations where a credible threat is said to exist, rather than one where a credible threat is made.

30. Paragraphs (a), (c), and (d) all contain verbs. They criminalise, respectively: the planning, attempting, and carrying out of terrorist acts. Paragraph (b) does not contain a verb, and it could criminalise a state where a credible threat occurs, rather than where a credible threat has been made.

31. Criminal offences should revolve around actions people have taken, or omitted, not situations that exist. Whatever else happens with these sections, at the very least what is currently new s 5A(1)(b) should include be amended so it covers the making of a credible threat.

32. The offence provision (section 6A) also appears confused by what is intended to be covered, as its hierarchy of sentences is at odds with that which applies under ordinary New Zealand law. For general offences under New Zealand criminal law, the New Zealand approach is generally:

  • Least serious is preparing to do something, which is not generally criminal.
  • More serious is threatening to do something or conspiring to do something.
  • More serious still is attempting to do something.
  • Most serious is actually doing something.

33. The proposed amendment to section 8(2) provides for a life sentence for carrying out a terrorist act by a credible threat, while providing a maximum sentence of 10 years for attempted terrorism. I have no strong opinion on what maximum penalties should be provided, but a threat should not carry a greater penalty than an attempt.

Confusing language also present in new section 6B

34. New section 6B contains the same confusing definition, defining something as being carried out whether or not it is carried out and should be reworded as well.

Amendments to Control Orders Regime

35. I remain concerned about the control orders regime in general, but recognise that this bill will not be used to drastically curtail them. I encourage careful consideration of restrictions they impose, particularly on an interim basis, but have one matter of policy I consider is within the scope of the changes this bill would make.

36. New section 16A provides for an interim control order regime in respect of New Zealand prisoners. Subsection (2) of this section provides that the Commissioner of Police may make an application to the Court, without notice, if the Commissioner believes on reasonable grounds that a without notice application is appropriate in the circumstances.

37. This much is justified. The Commissioner should be able to apply without notice.

38. However the Court should not be bound by the Commissioner’s view, which the Bill would require. As drafted, the bill would preclude the Court from forming its own view on whether the application should be determined on notice or without notice.

39. This is inappropriate. Requiring that a Court adopt a particular process because an applicant has formed a particular view is contrary to judicial independence. After hearing from the Commissioner, and their reasons for seeking a without notice order, the Court should be able to form its own view over whether it should continue to hear the application without notice to the offender. New section 16A(2) should be amended accordingly.

40. It would be appropriate to amend section 15 (2) in a similar manner. This should be removed from both the bill, and the current legislation.

Conclusion

41. I thank the committee for the opportunity of presenting a submission on the Counter-Terrorism Legislation Bill. I urge the committee to consider the bill carefully, in particular the amendments to the definition of terrorist act.

42. If the intention of the bill is to more explicitly criminalise actions like those that were investigated as part of Operation 8, you and the government should say so. If that is not the intention of this legislation care should be taken to redraft it that that intention is clear.

5

A draft submission on the Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill

For once, I have written my submission on a bill with enough time to spare to both enocurage any of you who wants to make a submission to do so as well, and to give you time to spot the typos in mine.

Louisa Wall's Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill was pulled from the biscuit tim a little while back, and got through to the Justice Committee. It's a relatively simple bill designed to make some prosecutions for so-called "revenge porn" easier. An excellent bill of the ype that fits well into the members' bill process.

My draft submission is below

------------

The Justice Committee

Harmful Digital Communications (Unauthorised
Posting of Intimate Visual Recording) Amendment Bill

Submission of Graeme Edgeler

Introduction

My name is Graeme Edgeler. I am a Wellington barrister with a practice revolving around the criminal law.

I thank the committee for the opportunity to make a written submission on Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill, and look forward to appearing in person to supplement it.

I support the intention of the Bill, but offer some short comments that the committee might like to consider, as well as a small suggestion around some of the wording used.

New Offence Around Non-Consensual Posting of Intimate Visual Recordings

Non-consensual posting of intimate visual recordings is already illegal, but prosecution can be complicated by the requirement to prove harm, defined as “serious emotional distress” in the Harmful Digital Communications Act. This can mean that some people may avoid conviction for posting “revenge porn” because their victim, while negatively affected by the publication, isn’t affected in quite the right way for the requirement of serious emotional distress to be proved.

The intention of the bill is essentially to take the offence of causing harm by posting digital communication, and where that offence involves the posting of an intimate visual recording, assume that harm of a type the criminal law seeks to prevent is present.

I support this approach. Non-consensual posting of intimate visual recordings is harmful. It is a serious harm of the type society properly uses the criminal law to discourage. This harm is present even when the type of harm currently proscribed by the offence in section 22 of the Harmful Digital Communications Act cannot be proved beyond a reasonable doubt.

This law change will make prosecuting “revenge porn” easier. It should reduce some of the additional stress the Court process can impose upon victims, as intensely personal questions around the affect the posting has had on them will become less relevant, and potentially, there may be more guilty pleas as one avenue of avoiding conviction – seeking to establish reasonable doubt about the harm element of the current offence – will be removed.

Maximum Penalty

The bill has a second aim, albeit one which is not mentioned in the explanatory note: it increases the maximum penalty for the offence from two years to three years.

I will start by making it clear that I am not saying that the increase in the penalty is wrong. For the most serious types of this offence, three years’ imprisonment may well be an appropriate maximum penalty.

I am instead raising the following as something that the Committee may wish to think about, and seek further input from departmental advisers.
There is a general principle of law-making that when Parliament sets the maximum penalty for an offence, it is prescribing the sentence that should be applied to the most serious forms of that offence. For example, aggravated robbery covers a range of offending, all serious, but with a clear range from less serious to more serious. At the least serious end, any robbery committed by two or more people is an aggravated robbery, but at the most serious end, so too is robbery committed with a loaded firearm.

This approach – setting the maximum penalty as the appropriate penalty for the most serious offending of the kind to be prosecuted under the offence – is recognised in section 8(c) of the Sentencing Act, and was considered in the Law Commission’s 2013 Study Paper Maximum Penalties for Criminal Offences (NZLC SP21), which I would recommend to the Committee if it wishes to consider this further.

When Parliament passed the Harmful Digital Communications Act it criminalised non-consensual posting of intimate visual recordings. It did this through the section 22 offence of causing harm by posting a digital communication.

That offence does not only deal with the posting of “revenge porn” but covers a range of different offending. It is likely that Parliament considered non-consensual posting of intimate visual recordings to be the most serious type of causing harm by posting a digital communication. At that time, Parliament thought two years was the appropriate maximum.

Parliament knew what a serious invasion of privacy non-consensual posting of intimate visual recordings was at the time it set the two-year maximum. I suspect its view hasn’t changed. It remains as serious as it always was, with this law change primarily about making it easier to prosecute slightly less-serious forms of “revenge porn” (ie those where serious emotional distress cannot be proved).

I recommend that the Committee consider what the appropriate maximum penalty should be for this offence. I have no particular opinion on what it should be, but I recognise that there is some benefit in having a coherent approach to maximum sentences, as the Law Commission’s Study Paper addressed.

I anticipate that two years was chosen in 2015 in part because the pre-existing intimate visual recording offences in sections 216I and 216J of the Crimes Act carry three-year maximums, while dealing with more serious invasions of privacy (they cover situations where not only is the publication non-consensual, but the recording was non-consensual as well).

Overall, both two years and three years seem defensible, but I offer this as something to think about.

Proposed Changes to the Legislative Language

New section 22A(3) gives the sentencing Court the power to make what would be civil orders in the course of a sentencing. This appears sensible, and is in line with a few similar provisions in respect of other offences. Two issues arise: one substantive, and one around the drafting.

This is still a criminal proceeding, it would be appropriate to limit the orders available to the Courts to those in section 19(1)(a)-(c). In reality, a judge may be unlikely to make an order under 19(1)(d)-(f) in the Course of the sentencing, but I submit that the orders in paragraphs (d)-(f) are inappropriate in criminal proceedings, and the law should recognise this.

In terms of wording, subsection (3) refers to “any penalty being imposed on a person under subsection (2)…”. Subsection (2) sets the maximum penalty, but a Court does not impose a sentence or penalty under it. Rather sentencing takes place under the Sentencing Act. As drafted, there is a technical risk that a court may consider its powers limited where the penalty imposed is not one prescribed by subsection (2), for example, a sentence of home detention, or a community order.

It would also be appropriate for orders to be able to be made even where a penalty is not imposed at all, for example, because a discharge, or an order to come up for sentence if called upon is the result.

To better achieve the aims of subsection (3), I would invite the Committee to consider adopting wording closer to that in sections 216L and 216M of the Crimes Act, which deal with similar post-conviction orders around intimate visual recordings. The Committee may also like to consider whether the power ought to be able to be exercised in respect of other Harmful Digital Communications Act prosecutions under section 22.

Conclusion

I thank the committee for the opportunity of presenting a submission. I welcome the bill as an improvement over the current law, fixing an issue that will arise is a small number of prosecutions for offending Parliament intended to criminalise a few years back.

I support the passage of the Bill, while recommending that the Committee:

  •  Amend new section 22A(3) to remove the possibility of inappropriate civil orders being made in a criminal prosecution, and fixing the empowering provision to better accord with the intent behind it.
  • Consider what the appropriate maximum sentence should be for this offence.
3

A submission on the Films, Videos, and Publications Classification (Urgent Interim Classification of Publications and Prevention of Online Harm) Amendment Bill

Below, for those interested, I copy my submission on the Films, Videos, and Publications Classification (Urgent Interim Classification of Publications and Prevention of Online Harm) Amendment Bill.

This is the government bill aiming to create a mandatory Internet filter. The bill is largely unnecessary, but in parts not as bad as people fear, although this is because the current law already has many of the problems they're ascribing to eg the new offence of livestreaming objectionable content.

The Governance and Administration Committee

Films, Videos, and Publications Classification (Urgent Interim Classification of Publications and Prevention of Online Harm) Amendment Bill

Submission of Graeme Edgeler

Introduction

My name is Graeme Edgeler. I am a Wellington barrister with a strong interest in censorship and issues of freedom of speech.

I thank the committee for the opportunity to make a written submission on the Films, Videos, and Publications Classification (Urgent Interim Classification of Publications and Prevention of Online Harm) Amendment Bill, and look forward to appearing in person to supplement it.

I consider parts of the bill unnecessary, and the bill somewhat of a missed opportunity: there are a number of issues with New Zealand’s censorship laws that are in need of major reform, which this bill does not seek to address.

I am aware of other criticisms of the bill, some of which are misplaced. Many of these criticisms are really criticisms of the current law. I have not addressed these matters (for example, the livestreaming of non-objectionable material that becomes objectionable) because the Bill does not change the law around this. The Committee should nevertheless consider making recommendations around fixing these concerns.

I address the following issues in my submission:

  • Livestreaming objectionable content.
  • The disapplication of the Harmful Digital Communications Act.
  • The creation of a mandatory Internet filter.
  • A few relatively minor comments on statutory language.

New section 124AB offence to livestream objectionable content

New section 124AB would create an offence to livestream objectionable content.

This new offence is unnecessary. It is already an offence to livestream objectionable content. Anyone livestreaming an objectionable video commits the offence of making it, as well as supplying it, and distributing it.

Section 123(4) of the Films, Videos and Publications Classification Act was amended in 2005 to make clear that electronic transmission was covered. If there is any serious doubt that the words used are sufficiently clear (and I do not believe there is), then:

(i) Ministry advisers will presumably be able to point to the court case in which a person was acquitted on this technicality, despite Parliament’s 2005 amendment; and

(ii) The appropriate legislative response is keeping the new definition of livestreaming and adding the word “livestream” as an alternative in section 123.

I note also that the livestreaming offence appears intended to only cover publishers, and not those watching a livestream (either way, this should be made clear). People watching a livestream can currently be charged, the creation of this offence in this way, may suggest to the Courts that Parliament intends that those watching, for example, livestreamed images of child sexual abuse ought not to be charged.

Disapplication of the Harmful Digital Communications Act safe harbour provisions

When Parliament adopted the Harmful Digital Communications Act (“HDCA”) is put a deliberately wide immunity provision in it, providing not just a defence, but a broad immunity that prevented online content hosts from even being proceeded against.

This was an appropriate response: online content hosts should not be expected to screen every picture or video uploaded, or email sent: you should prosecute the person who wrote the death threat, not the mailman who delivered it.

Given the desirability of this approach, it is not clear why this legislation needs to be excluded from the protections in the HDCA, which will continue to apply, for example, to privacy claims, defamation, and prosecutions for things like death threats, and uploading intimate visual recordings.

While the removal of objectionable content is more serious than unwanted intimate visual recordings, the differences between them are not such that one would expect different approaches to be taken with blameless content hosts of either sort of illegal content.

Given that there is dual responsibility for enforcement of laws against objectionable material (by both DIA and the Police, and Customs), it is difficult to see why different immunities should apply depending on who was bringing the charge: the defence in new section 119G when Police lay the charge under section 124 of the Films, Videos, and Publications Classification Act or the immunity in section 23-25 of the HDCA when Customs charge fundamentally identical behaviour under section 390 of the Customs Act.

In addition, the statutory immunity is insufficiently broad. The HDCA immunity applies whenever an online content host receives notice of a complaint about content they host, which does not need to be in a particular form. The section 119G defence only applies when there is a take-down notice. If no take-down notice is issued, but instead a prosecution of the online content host is commenced, the defence would not apply. Whether a separate immunity/defence is needed or not, the defence that online content hosts can rely on should arise from the fact they are not expected to censor all the content they host, not because some action has or has not been taken by an enforcement agency. This concern also arises with respect to the section 22D defence in respect of interim classification assessments.

If there is a problem with overbreadth of the immunity provision in the HDCA, then it should be fixed for all content covered by that immunity, not just objectionable or restricted content.

And if there are concerns that the liability shield in sections 23-25 of the HDCA would prevent enforcement of new takedown orders, then an amendment to section 25(5) of the HDCA is the better way to meet that aim.

The Mandatory Internet Filter

The explanatory note of the bill records that “The Bill facilitates the establishment of a government-backed (either mandatory or voluntary) web filter if one is desired in the future. It provides the Government with explicit statutory authority to explore and implement such mechanisms through regulations, following consultation.”

This is backwards. Parliament is being asked to approve a government-backed web filter, despite one “not being desired” at this time. It should refuse.

Parliament should not abandon its role in deciding so important a public policy question to the Secretary for Internal Affairs. If Parliament wishes there to be a mandatory Internet filter, it should recommend to the Government that it bring forth a proposal for one, with much more detail than is contained here included in the primary legislation. It should then decide whether the safeguards are sufficient, and the costs worth it, and either approve it or reject it.

If the Government has yet to make up its mind over whether it wants a filter, or what type of filter it wants if it does, then it should go away and do the work before seeking any necessary legislative change. If there are concerns that the Government could not do the preparatory work on a possible filter without a law change, the law should could be limited to permitting that.

Ultimately, however, the final decision over whether to have a mandatory Internet filter should be made by Parliament. The balancing exercise is one it should weigh.

If you are determined to press ahead with a proposal to allow the Secretary at some future time to impose a mandatory Internet filter, at the very least, the legislative instrument creating it should be a confirmable instrument, included in schedule 2 of the Legislation Act 2012, and subject to confirmation by the House of Representatives.

The decision of whether a mandatory web filter should be imposed is one for Parliament. It is should abandon its role in favour of the Secretary for Internal Affairs. If the Government decides in the future that it wishes to have, it should bring its rationale.

Proposed Changes to the Legislative Language

I have a few relatively small suggestions about some of the current wording choices adopted in the legislation, which I invite the Committee to seek advice over.

New Section 22B

New Section 22B(5) provides that the provisions of the Act (including specified offence provisions) apply to publications subject to interim classifications. This section is unnecessary. Prosecution under the Act does not turn on when a publication is classified, but on the nature of the publication itself. It also appears to imply that a prosecution could be commenced for eg possession of a publication subject to an interim classification that is ultimately not determined to be objectionable. This should not be the case. The subsection should be removed.

New Section 119A

The definition of livestream includes the words “transmit or stream”, stream can be used to describe both the actions of the person publishing the images, but also anyone receiving them. Whichever meaning is intended, some additional clarity would be welcome.

New Section 119K

I see no reason why the secretary should not also be required to make publicly available a list of take-down notices issues that have not been complied with.

Conclusion

I thank the committee for the opportunity of presenting a submission. If the Committee considers that the Bill should pass, it should recommend that a number of amendments, in particular, removing the legislative authority it grants the Secretary of Internal Affairs to create a mandatory Internet filter, and bolstering the statutory defences applying to online content hosts.

                                                                                                     Graeme Edgeler

15

Election '20: The No Threshold Hypothetical

The final count of the 2020 general election has been released, with five parties making it into Parliament.

If New Zealand had no threshold, and parties just had to get enough votes to be entitled to be in the first 120 seats given out, there would be 10 parties represented. Of course, without a threshold, voting patterns would have been different, but below, I present the hypothetical New Zealand House of Representives, if the 2020 general election got the result it did, without an artifical threshold:

New Zealand Labour Party

60

The New Zealand National Party

31

The Green Party of Aotearoa/New Zealand

10

ACT New Zealand

9

New Zealand First Party

3

The Opportunities Party (TOP)

2

New Conservative

2

Māori Party

1

The Advance New Zealand Party

1

Aotearoa Legalise Cannabis Party

1

This would be a decidely different Parliament, and even Government, with Labour's bare majority of the vote not quite enough to govern alone.

If, instead of no threshold, you had to earn at least 1/120 of the vote to get your first seat (i.e. no rounding up for the first seat), Legalise Cannabis's seat would have gone to Labour.