9 May 2021

Public help makes good bills great law

From The House , 7:30 am on 9 May 2021

The problems of the world are always thornier than we think. Legislating for them is a tough ask. Much of MPs’ time is taken up trying to tease out the best way to legislate impossibly complex issues. 

Then arguing about whether or not it’s all a terrible idea. 

All bills need work to perfect them, but one variety can need even more help - member’s bills - the bills proposed by an individual MP from any party. The bills not part of a government agenda. 

Member's bills sometimes make huge changes in social issues (gay marriage, and end to smacking, end of life choice…). But they are not always deftly drafted law-in-waiting. 

Labour MP Louisa Wall as Chair of Social Services Select Committee

Labour MP Louisa Wall as Chair of Social Services Select Committee Photo: VNP / Phil Smith

Government bills undergo months (sometimes years) of development and are lovingly crafted by professional legal drafters. Member’s bill’s don’t always get that level of attention because they come from individual MPs or, at best, parties. 

Labour MP Louisa Wall has an incredible record for getting bills chosen in the ‘biscuit tin ballot’ and then ultimately passed. (Most members’ bills fail.)  Gay marriage was her bill, so was a change to liquor relicensing, and she has two different members bill’s currently under consideration. Two at once is pretty unusual.  

One of the her two current bills would allow the creation of ‘safe zones’ around abortion providers and is being considered by the Health Committee. 

The other tightens the law around the sharing of intimate visual recordings and is being considered by the Justice Committee - which was hearing submissions this week. That bill is the focus of this article.

The Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill would amend the Harmful Digital Communications Act 2015. That law can criminalise the online sharing of ‘intimate’, (e.g. naked) photos or videos of another person. But it’s pretty narrow and the new bill makes this aspect much more enforceable.

Specifically, the current law requires the victim to prove there was intent to harm, actual harm was done, and consent was not given. The onus is on the victim to demonstrate these things which can be re-traumatising, while proving a negative (no consent) is a tough ask. 

The new bill flips that around and puts the burden on the perpetrator instead by presuming harm and putting the burden of proof for consent on the ‘sharer’ of the recording.

The bill passed a first reading in March. I noted three things from that first reading debate:

  • Firstly the bill had unanimous support (all parties were happy with it at this stage).
  • Second, there was praise for the drafting of the bill. 
  • And third, Louisa Wall did not fall for the glowing assessment, but instead described her own bill as “deficient” and noted some areas that needed improvement. 

Wall particularly noted areas that she wanted to have public input on and people she thought MPs could learn more from. These included both young people (those most likely to record and or share naked selfies or sex videos), and victims. After all, nothing beats advice from the true experts - those with personal experience.

Most MPs know drafting perfect law is a tough ask - and the first draft seldom catches all the complexities of real life. Almost no law can, but they try their best.

That is the whole point of the second formal stage of passing a bill - the select committee process. The hope is that public and expert input makes bills into the most well-crafted law they can be (whether or not the submitters agree with them). 

Which brings us back to this week and the hearings, with three examples of why the whole process is important; and why people should engage.

Martin Cocker CEO Netsafe giving evidence to the Justice Select Committee

Martin Cocker CEO Netsafe giving evidence to the Justice Select Committee Photo: ©VNP / Phil Smith

The first submitters on the bill were from Netsafe - an NGO that carries out civil aspects of the underlying law that this bill amends criminal aspects of. Netsafe chief executive Martin Cocker came with their legal advisor Marissa Flowerday.

They supported the bill but also had a number of specific amendment ideas, including: how consent should be recorded, how internet platforms could be made liable for not checking consent, on consistent penalties, the removal of intent as a factor, and the inclusion of synthetic media in the definition (eg a realistic composite video of your head but with someone else’s naked body).

There was also discussion of unintended consequences (not unnecessarily criminalising young people). Netsafe’s research suggests that teens engage in risk-taking behaviour (including A/V-as-foreplay) at twice the rate of young adults (who are not exactly staid themselves). 

Some submitters, like Netsafe, come to a select committee with carefully developed alternatives and amendments already drafted by lawyers. They are not the majority though. 

Most submitters come armed with real world stories - with examples of unforeseen problems that need including (or avoiding). They may have ideas for solutions but are happy to leave the legal niceties to others.

Labour MP Arena Williams in select committee listening to Netsafe CEO Martin Cocker

Labour MP Arena Williams in select committee listening to Netsafe CEO Martin Cocker Photo: ©VNP / Phil Smith

For example the very next submitters were from the NZPC: Aotearoa New Zealand Sex Workers Collective - a representative body that contracts to the Ministry of Health to provide support in sexual and reproductive health for sex workers.

They also supported the bill but brought quite different issues to Netsafe. Cherida Fraser (an NZPC community liaison, advocate, and researcher) raised the issue of people being able to give consent for a specific purpose and later withdraw that consent. 

An example of this was identifying images of a sex worker taken for marketing (say photos taken by a brothel for advertising). Consent might be given for sharing on a website for that purpose, but the worker might later want to withdraw that consent, and have the photos no longer shared. Particularly if they left that field of work and wanted a different career, where such content might be problematic.

And after NZPC the very next submitters were from a Youth Council with different issues yet again. You get the idea.

When a bill passes a first reading debate in Parliament the MPs are saying ‘we think the concept for this bill is worth exploring further’. 

That’s all well and good - but it’s often afterwards that MPs really earn their pay trying to make a concept, however well-intentioned, work practically and effectively in the real world.

And the best people to help with that are often us - those from ‘the real world’. 

Because the real world is a complex place and nothing beats experience.