Objectionable Publications and Indecency Legislation Bill

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Objectionable Publications and Indecency Legislation Bill

Government Bill

124—1

Explanatory note

General policy statement

Introduction

A key purpose of this Bill is to implement the Government's post-election action plan to increase penalties for producing, trading, or possessing child pornography. The Government's objective is to ensure that sentences for child pornography offences reflect the seriousness of the offending and send a strong message that the exploitation and abuse of children will not be tolerated.

To achieve that key purpose, and otherwise improve objectionable publications and indecency legislation, this Bill—

  • increases maximum penalties for possession, import, export, supply, distribution, and making of objectionable publications – which include child pornography publications:

  • clarifies that a person can have possession of an objectionable electronic publication without saving it (or a copy of it):

  • provides for a presumption of imprisonment for repeat child pornography offenders:

  • removes the Attorney-General's leave requirement for public prosecutions of objectionable publications offences:

  • creates a new criminal offence of indecent communication with a young person (under 16 years).

Those changes require amendments to the Films, Videos, and Publications Classification Act 1993, Customs and Excise Act 1996, and Crimes Act 1961.

Increasing penalties

Increasing penalties sends a clear message that possession of, and trade in, child pornography is an abhorrent act that encourages the abuse of children, and therefore deserves to be treated as serious offending. Similarly, the presumption of imprisonment for repeat child pornography offenders is a strong deterrent which highlights the seriousness of this kind of offending, and discourages recidivism.

Possession of electronic publications

The amendment relating to possession is for the avoidance of doubt, and to ensure offenders with particular technical expertise don't escape liability by viewing objectionable publications without also saving them. It also helps to future proof the offence against unforeseen new technologies.

Attorney-General's consent for prosecutions

The current requirement for law enforcement agencies to obtain the Attorney-General's leave to prosecute was historically a safeguard against inappropriate public prosecutions. But the New Zealand Police, New Zealand Customs Service, and Department of Internal Affairs all now have significant experience in determining, and adequate internal processes for checking, the appropriateness of a proposed public prosecution. The requirement for leave for public prosecutions is thus no longer serving any useful purpose.

Prosecutions involving extraterritorial jurisdiction, and persons wanting to bring a private prosecution, will still require the Attorney-General's consent. The Attorney-General's consent requirement is a common safeguard for offences with an extraterritorial component and, because of the nature of the relevant offences, is still considered necessary to filter out frivolous or vexatious, or otherwise inappropriate, private prosecutions.

Indecent communication with young person

The new offence of indecent communication with a young person aims to address a gap in the law. That gap is between objectionable publications offences, which only apply if the offender makes a record of a communication with a young person, and the sexual grooming offence, which only applies if the offender intentionally meets (or travels with the intention of meeting) the young person, or arranges for or persuades the young person to travel with the intention of meeting him or her.

Indecent communication with a young person can occur in a variety of old and new media (including text or picture messaging, Internet chat, and telephone). Indecent communication by an adult with a young person is damaging to both the young person and the public good. A specific offence is therefore needed to ensure that this damaging behaviour is criminalised regardless of whether a record of the communication is made by the offender, or whether the offender has taken steps to physically meet with the young person.

Regulatory impact statement

The Ministry of Justice produced a regulatory impact statement on 2 August 2012 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

A copy of this regulatory impact statement can be found at—

Clause by clause analysis

Clause 1 is the Title clause. The Bill is intended to be divided at the end of its committee of the whole House stage, and enacted as the following 3 Acts:

  • Films, Videos, and Publications Classification (Objectionable Publications) Amendment Act 2013subpart 1 of Part 1:

  • Customs and Excise (Objectionable Publications) Amendment Act 2013subpart 2 of Part 1:

  • Crimes (Indecency) Amendment Act 2013Part 2.

Clause 2 relates to commencement. The amendments the Bill makes are to come into force on the 28th day after the date on which it receives the Royal assent.

Part 1
Amendments related to objectionable publications

Subpart 1Amendments to Films, Videos, and Publications Classification Act 1993

Clause 3 identifies the principal Act amended by subpart 1 of Part 1: the Films, Videos, and Publications Classification Act 1993.

Clause 4 amends section 124, which relates to offences involving knowledge in relation to objectionable publications. An example of an offence of that kind is the offence of supplying or distributing (including in either case by way of exportation from New Zealand) an objectionable publication to any other person, knowing or having reasonable cause to believe that the publication is objectionable. The amendment increases, from 10 years to 14 years, the maximum available penalty (term of imprisonment) for an offence against section 124(1) committed by an individual.

Clause 5 amends section 131, which ensures that every person commits an offence who, without lawful authority or excuse, has in that person's possession an objectionable publication.

Clause 5(1) and (2) relocate an introductory qualification to section 131(1) into a new subsection (1A).

Clause 5(3) inserts new section 131(2A) to (2C). These new subsections ensure that a person can have an electronic publication (as defined in new section 131(2B)) in that person's possession for the purposes of section 131(1) even though the person's actual or potential physical custody or control of the publication is not, or does not include, the person intentionally or knowingly using a computer or other electronic device to save the publication (or a copy of it). New section 131(2A) is for the avoidance of doubt, and does not limit section 131(1) (see new section 131(2C)).

Clause 6 amends section 131A, which relates to offences of possession of objectionable publications, knowing or having reasonable cause to believe that the publications are objectionable. The current maximum available penalty for an offence against section 131A(1) committed by an individual is imprisonment for a term not exceeding 5 years, or a fine not exceeding $50,000. The amendment increases that maximum available term of imprisonment from 5 years to 10 years.

Clause 7 inserts a new section 132B, which contains a presumption of imprisonment for certain repeat offenders. New section 132B applies (new section 132B(1)) only to an offender who—

  • has been convicted of and is to be sentenced in respect of a specified publications offence committed after the commencement of new section 132B (the repeat offence); and

  • before the conviction for the repeat offence was entered, had been convicted of 1 or more specified publications offences committed before or after that commencement.

A specified publications offence (new section 132B(2)) is one against a provision specified in section 132A(1)(a) to (e) if the publication that was the subject of the offence does (to any extent) any or all of the following things (specified in section 132A(2)(a) to (c)):

  • promotes or supports, or tends to promote or support, the exploitation of children, or young persons, or both, for sexual purposes:

  • describes, depicts, or otherwise deals with sexual conduct with or by children, or young persons, or both:

  • exploits the nudity of children, or young persons, or both.

In deciding whether a publication is objectionable because it does any or all of those things, the court must have regard to the reasons in relevant Classification Office or Board decisions, and to relevant Classification Office reports to the court: new section 132B(3).

The offender must be sentenced for the repeat offence to a sentence of imprisonment (new section 132B(4)) unless the court considers that the offender should not be so sentenced, having regard to—

  • the particular circumstances of the repeat offence; and

  • the particular circumstances of the offender (including, without limitation, his or her age if he or she is under 20 years of age).

Clause 8 replaces sections 144 and 145 with a new section 144.

Section 144(1) prevents a prosecution (of any kind, and so whether public or private) from being commenced for specified offences (against any of sections 123 to 129 or against section 131, 131A, or 133) without the Attorney-General's leave. Sections 144(2) to (5) and 145 enable the Attorney-General to delegate his or her power to give leave to the Commissioner of Police, and the Commissioner to subdelegate that power.

New section 144 ensures instead that it is only private prosecutions (as defined in section 5 of the Criminal Procedure Act 2011) for any of the specified offences that cannot be commenced without the Attorney-General's consent. Sections 144(2) and 145 are discontinued because the delegations and subdelegations they contemplate are not to continue. Sections 9A to 9C of the Constitution Act 1986 will continue to enable the Solicitor-General to perform, or (with the Attorney-General's consent) delegate, the Attorney-General's function or power of consenting to private prosecutions of that kind.

Subpart 2Amendments to Customs and Excise Act 1996

Clause 9 identifies the principal Act amended by subpart 2 of Part 1: the Customs and Excise Act 1996.

Clause 10 amends section 209, which contains offences in relation to importation or exportation of prohibited goods.

Clause 10(1) amends section 209(5)(a), which specifies the maximum available penalty (term of imprisonment) for an offence committed by an individual against section 209(1A). Section 209(1A) relates to being knowingly concerned in the importation, exportation, or other unlawful transfer, of an objectionable publication, defined by section 209(1B) as a publication (as defined in section 2 of the Films, Videos, and Publications Classification Act 1993)—

  • the importation of which is prohibited by or under section 54; or

  • the exportation of which is prohibited by or under section 56.

The amendment increases that maximum available penalty (term of imprisonment) from 5 years to 10 years.

Clause 10(2) replaces section 209(6), which explains that an offence against section 209(1A) is affected by related provisions in sections 132A and 145A(1) of the Films, Videos, and Publications Classification Act 1993. New section 209(6) re-enacts section 209(6), but also extends it so that it refers to new section 132B of that Act (as inserted by clause 7).

Part 2
Amendments related to indecency

Clause 11 identifies the principal Act amended by Part 2: the Crimes Act 1961.

Clause 12 amends section 124, which relates to distribution or exhibition of indecent matter. Section 124(5) ensures that no prosecution (of any kind, and so whether public or private) can be commenced for an offence against section 124 without leave of the Attorney-General, who before giving leave may make any inquiries he or she thinks fit. New section 124(5) ensures instead that it is only private prosecutions (as defined in section 5 of the Criminal Procedure Act 2011) for an offence against section 124 that cannot be commenced without the Attorney-General's consent.

Clause 13 inserts a new section 124A, which creates a new offence, punishable by imprisonment for a term not exceeding 3 years, of indecent communication with a young person under the age of 16 years. New section 124A is informed by, but also differs from, the offence (of communicating indecently with a young child, etc) created by section 24 of the Sexual Offences (Scotland) Act 2009.

New section 124A(1) provides that a person of or over the age of 16 years is liable to imprisonment for a term not exceeding 3 years if he or she intentionally exposes a person under the age of 16 years (the young person) to indecent material (whether written, spoken, visual, or otherwise, alone or in combination) in communicating in any manner, directly or indirectly, with the young person.

In a prosecution for an offence against new section 124A(1),—

  • it is not necessary for the prosecution to prove that the intentional exposure was for any identified purpose (for example, to obtain sexual gratification, or to alarm, distress, or humiliate the young person); but

  • any identified purpose of that exposure may be considered in determining whether the material is indecent.

New section 124A designedly does not specify a legal test for when material is indecent. (Compare, for example, the Indecent Publications Act 1963, section 2, definition of indecent.) New section 124A is also designedly broader than section 24 of the Sexual Offences (Scotland) Act 2009 (because that section 24 is expressly confined to defined sexual – written or verbal – communications).

New section 124A in operation may well, however, be informed by other enactments with tests of indecency. One example is the Summary Offences Act 1981 section 4(1)(c)(ii) and (3) (in or within view of a public place, addressing indecent words to a person). Others are the Telecommunications Act 2001 section 112 (in using a telephone device, using indecent language or making an indecent suggestion, with the intention of offending) and section 113 (indecent telephone calls for pecuniary gain). Also relevant are the discussion and recommendations in the New Zealand Law Commission's Ministerial Briefing Paper on Harmful Digital Communications (August 2012). Those recommendations include a Crimes Act 1961 new section 131C offence (conduct aimed at procuring a young person for unlawful sexual activity). One component of that offence is exposing a young person to indecent material.

New section 124A(2) ensures that a reference in new section 124A(1) to a person under the age of 16 years, or to the young person, includes a reference to a constable (as defined in section 2(1)) who pretends to be a person under the age of 16 years (the fictitious young person) if the person charged with an offence against new section 124A(1), when communicating with the fictitious young person and exposing the fictitious young person to indecent material, believed that the fictitious young person was a person under the age of 16 years.

New section 124A(3) makes it a defence to a charge under new section 124A(1) if the person charged proves that,—

  • before communicating with the young person and exposing the young person to the indecent material, the person charged had taken reasonable steps to find out whether the young person was of or over the age of 16 years; and

  • at the time of communicating with the young person and exposing the young person to the indecent material, the person charged believed on reasonable grounds that the young person was of or over the age of 16 years.

New section 124A(4) ensures, by analogy with the defence in section 124(4), that it is no defence to a charge under new section 124A(1) that the person charged did not know that the material to which the charge relates was indecent, unless the person charged also proves—

  • that the person charged had no reasonable opportunity of knowing it; and

  • that in the circumstances the ignorance of the person charged was excusable.

New section 124A(5) ensures that no private prosecution (as defined in section 5 of the Criminal Procedure Act 2011) for an offence against new section 124A can be commenced without the Attorney-General's consent.


Hon Judith Collins

Objectionable Publications and Indecency Legislation Bill

Government Bill

124—1

The Parliament of New Zealand enacts as follows:

1 Title
  • This Act is the Objectionable Publications and Indecency Legislation Act 2013.

2 Commencement
  • This Act comes into force on the 28th day after the date on which it receives the Royal assent.

Part 1
Amendments related to objectionable publications

Subpart 1Amendments to Films, Videos, and Publications Classification Act 1993

3 Principal Act
  • This subpart amends the Films, Videos, and Publications Classification Act 1993 (the principal Act).

4 Section 124 amended (Offences involving knowledge in relation to objectionable publications)
  • In section 124(2)(a), replace 10 years with 14 years.

5 Section 131 amended (Offence to possess objectionable publication)
  • (1) In section 131(1), replace Subject to subsections (4) and (5), every with Every.

    (2) After section 131(1), insert:

    • (1A) Subsection (1) is subject to subsections (4) and (5).

    (3) After section 131(2), insert:

    • (2A) A person can have an electronic publication in that person's possession for the purposes of subsection (1) even though that person's actual or potential physical custody or control of the publication is not, or does not include, that person intentionally or knowingly using a computer or other electronic device to save the publication (or a copy of it).

    • (2B) Electronic publication, in subsection (2A), means a thing that is a publication under paragraph (d) of the definition of publication in section 2.

    • (2C) Subsection (2A) is for the avoidance of doubt, and does not limit subsection (1).

6 Section 131A amended (Offences relating to possession of objectionable publications and involving knowledge)
  • In section 131A(2)(a), replace 5 years with 10 years.

7 New section 132B inserted (Presumption of imprisonment for repeat offenders)
  • After section 132A, insert:

    132B Presumption of imprisonment for repeat offenders
    • (1) This section applies only to an offender who—

      • (a) has been convicted of and is to be sentenced in respect of a specified publications offence committed after the commencement of this section (the repeat offence); and

      • (b) before the conviction for the repeat offence was entered, had been convicted of 1 or more specified publications offences committed before or after that commencement.

      (2) An offence is a specified publications offence for the purposes of subsection (1) only if—

      • (a) the offence is one against a provision specified in section 132A(1)(a) to (e); and

      • (b) the publication that was the subject of the offence does (to any extent) any or all of the things specified in section 132A(2)(a) to (c).

      (3) In deciding for the purposes of subsection (2)(b) whether a publication is objectionable because it does (to any extent) any or all of the things specified in section 132A(2)(a) to (c), the court must have regard,—

      • (a) if there is a subsisting decision of the Classification Office, or of the Board, to the reasons for the decision given by the Classification Office, under section 38, or by the Board, under section 55; and

      • (b) if the publication has been referred to the Classification Office under section 29(1) or section 41(3), to the report provided by the Classification Office to the court under section 30.

      (4) The offender must be sentenced for the repeat offence to a sentence of imprisonment (within the meaning of the Sentencing Act 2002) unless the court considers that the offender should not be so sentenced, having regard to—

      • (a) the particular circumstances of the repeat offence; and

      • (b) the particular circumstances of the offender (including, without limitation, his or her age if he or she is under 20 years of age).

      (5) This section overrides, as they apply to the repeat offence, all inconsistent provisions in the Sentencing Act 2002.

8 Sections 144 and 145 replaced
  • Replace sections 144 and 145 with:

    144 Attorney-General's consent required for private prosecutions of certain publications offences
    • No private prosecution (as defined in section 5 of the Criminal Procedure Act 2011) for an offence against all or any of the provisions of the following sections can be commenced without the Attorney-General's consent:

      • (a) sections 123 to 129 (offences involving objectionable or restricted publications):

      • (b) section 131 (offence to possess objectionable publication):

      • (c) section 131A (offences relating to possession of objectionable publications and involving knowledge):

      • (d) section 133 (contravention of serial publication order or interim restriction order).

Subpart 2Amendments to Customs and Excise Act 1996

9 Principal Act
  • This subpart amends the Customs and Excise Act 1996 (the principal Act).

10 Section 209 amended (Offences in relation to importation or exportation of prohibited goods)
  • (1) In section 209(5)(a), replace 5 years with 10 years.

    (2) Replace section 209(6) with:

    • (6) By way of explanation, an offence against subsection (1A) can be affected by, and operate with, related provisions of the Films, Videos, and Publications Classification Act 1993, because an offence of that kind—

      • (a) is an offence to which section 132A of that Act (which specifies an aggravating factor to be taken into account in sentencing, etc, for certain publications offences) applies; and

      • (b) is a specified publications offence for the purposes of section 132B of that Act (which specifies a presumption of imprisonment for repeat offenders) if—

        • (i) it is committed before or after the commencement of section 132B of that Act; and

        • (ii) the publication that was the subject of the offence is objectionable (within the meaning of that Act) because it does (to any extent) any or all of the things specified in section 132A(2)(a) to (c) of that Act; and

      • (c) is a relevant offence as defined in section 145A(1) of that Act (which relates to extraterritorial jurisdiction).

Part 2
Amendments related to indecency

11 Principal Act
  • This Part amends the Crimes Act 1961 (the principal Act).

12 Section 124 amended (Distribution or exhibition of indecent matter)
  • Replace section 124(5) with:

    • (5) No private prosecution (as defined in section 5 of the Criminal Procedure Act 2011) for an offence against this section can be commenced without the Attorney-General's consent.

13 New section 124A inserted (Indecent communication with young person under 16)
  • After section 124, insert:

    124A Indecent communication with young person under 16
    • (1) A person of or over the age of 16 years is liable to imprisonment for a term not exceeding 3 years if he or she intentionally exposes a person under the age of 16 years (the young person) to indecent material (whether written, spoken, visual, or otherwise, alone or in combination) in communicating in any manner, directly or indirectly, with the young person.

      (2) A reference in subsection (1) to a person under the age of 16 years, or to the young person, includes a reference to a constable (as defined in section 2(1)) who pretends to be a person under the age of 16 years (the fictitious young person) if the person charged with an offence against subsection (1), when communicating with the fictitious young person and exposing the fictitious young person to indecent material, believed that the fictitious young person was a person under the age of 16 years.

      (3) It is a defence to a charge under subsection (1) if the person charged proves that,—

      • (a) before communicating with the young person and exposing the young person to the indecent material, the person charged had taken reasonable steps to find out whether the young person was of or over the age of 16 years; and

      • (b) at the time of communicating with the young person and exposing the young person to the indecent material, the person charged believed on reasonable grounds that the young person was of or over the age of 16 years.

      (4) It is no defence to a charge under subsection (1) that the person charged did not know that the material to which the charge relates was indecent, unless the person charged also proves—

      • (a) that the person charged had no reasonable opportunity of knowing it; and

      • (b) that in the circumstances the ignorance of the person charged was excusable.

      (5) No private prosecution (as defined in section 5 of the Criminal Procedure Act 2011) for an offence against this section can be commenced without the Attorney-General's consent.

      Compare: Sexual Offences (Scotland) Act 2009, s 24.