Parliament’s select committees always pull a much bigger weight of effort than they get credit for. Between them they concurrently run many dozens of inquiries and hearings, and on almost any topic you might care to think of.
They seem to revel in it, especially enjoying tricky issues and tough drafting, with a particular taste for members’ bills where those two tastes are sometimes combined.
Members’ bills sometimes require extra effort because they haven’t had the combined expertise of government ministries behind their crafting and drafting.
Members’ bills also sometimes tackle difficult philosophical terrain - issues that poke at some members’ moral sensibilities or that address big societal changes.
This week was a members' week and on Wednesday the House debated four bills - two were pretty simple, but two had given select committee particularly fascinating issues to chew on.
Interestingly, both bills were from Louisa Wall who is both weirdly lucky at getting members' bills chosen and also tends to address gnarly issues. In debate this week National MP Nicola Willis congratulated her for tackling what she described as “courageous” legislation.
The Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill seeks to improve the law on the online posting of naked pictures or videos of, for example, an ex-partner. It does this by no longer requiring proof of harm for conviction, but instead requiring proof of consent. The idea is to move the burden of proof from the victim to the perpetrator.
That might sound pretty easy to legislate, but no.
I watched the Justice Committee hearing some of the submissions on this bill and you can tell you that MPs from across the House love getting their teeth into something that really needs a good philosophical and legal chewing over.
There were lots of issues to consider including what level of consent was required. Louisa Wall discussed this in debate.
“This, I think, took up quite a lot of deliberation within the select committee. …essentially, we have a current standard for consent, and what the bill [had] introduced was a concept of ‘express consent’. And it was felt, in engaging with officials, that to do so would undermine the existing interpretations of consent [from other bills and common law]. So they, in their wisdom, have suggested that we remove express consent and go back to consent.”
The Justice Committee also tinkered with other aspects like "the age of consent… [and] I think it now has implications across the Crimes Act. They have… inserted a subsection that would mean that someone under 16 years of age actually cannot consent to the posting of an intimate visual recording of which they are the subject.” - Louisa Wall
To get a sense of the kind of gnarly discussions that likely ensued the committee noted in their report that “although this would allow a 16 or 17 year old to consent to the posting of an intimate visual recording, it could still be considered 'objectionable' under the Films, Videos, and Publications Classification Act.”
The committee also wrangled over the synthetic version of such a recording (where the face of one person is digitally added to someone else’s naked body). Have you been infringed upon if it isn’t actually you involved in the intimate record? Submitters had given evidence that it was still damaging.
The committee recommended leaving that issue out of this bill, but Louisa Wall forewarned the House she plans to have another crack at including it during the committee stage debate.
That bill was given a second reading unanimously.
Abortion safe zones and free speech
The very next bill the House debated was also from Louisa Wall (having two member’s bill back-to-back from the same MPs is incredibly unusual). This debate wasn't completed though.
It was also a second reading - when a bill returns from a select committee with recommended amendments. Again it involved a juicy feast of legal and ethical considerations for a select committee to gnaw on (this time it was the Health Committee).
The Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill seeks to prevent the harassment of women seeking abortions by allowing the creation (via case-by-case regulation) of safe areas around specific medical facilities that provide abortion services.
Again, you might think that might be easy to legislate, but you would be wrong.
The original version of this bill had been frowned upon by the Attorney General (Labour MP David Parker), in what is called a Section 7 Report, alerting the House to an aspect of the Bill being in conflict with The Bill of Rights. The specific report is here.
The problem was that the bill was too general in what it ruled out, particularly around communicating which is broadly protected under the Bill of Rights. Louisa Wall addressed this in the debate.
“Essentially, he said that there were freedom of expression issues… in terms of being able to seek, receive, and impart information and opinions of any kind in any form. I want to commend the select committee's engagement, then, with the Attorney-General, and, in fact, their diligence in providing the evidence to overcome this particular inconsistency.”
The committee redrafted the offending section to narrow its intent to avoid the conflict, and having done so they checked back with the Attorney General.
“So with the leave of the House, I'd just like to quote from a letter from the Attorney-General dated 10 November 2021: ‘My concerns have now been addressed. The communicative behaviour criminalised by clause 13A(1)(c) is narrower than the original proposal. The broad phrase 'communicating with' has been replaced by three new tests, which are all narrower than the original proposal and have appropriate exemptions built in’." - Louisa Wall.
Sarah Pallett discussed some of how they had addressed the problem.
“What we've done is we've prohibited certain behaviours, rather than having protected persons. So, just to describe the sorts of things that are now prohibited in this bill now with the amendments from the committee, a person must not ‘obstruct a person in a safe area who is approaching, entering, or leaving any building in which abortion services are provided;’, which is pretty simply understood. Also, they can't ‘make a visual recording of another person … in a manner that is likely to cause emotional distress to a person accessing, providing, or assisting with providing, abortion services’."
All of that might sound very fiddly and difficult but committees seem to revel in it.
Improving what you oppose
Committees often work very collaboratively on resolving these issues, despite the MPs holding a variety of opinions on the actual bill. Sarah Pallet talked about that as well.
“I do need to acknowledge, again, the incredible hard work of that committee. This was a really difficult piece of work, and it was undertaken with a degree of collegiality and respect even though… some of us held very different views on this piece of legislation. I'd just like to genuinely acknowledge and thank my colleagues from across the House for the way in which we were able to engage and try to create the best possible piece of legislation.”
Louisa Wall had touched on the same topic.
“I'd like to thank Liz Craig, as the chairperson, for her diligent work, and ... we have an amazing Labour team, but I also want to highlight the members of the Opposition, particularly Simon Watts, also Chris Bishop, and Penny Simmonds, who I thought played an incredibly constructive role, I hope she doesn't mind me saying, ...given her reservations about this piece of legislation.”
It is indicative of the very collegial ethic that can occur within the select committee environment that the sponsor of a bill might thank someone who is opposed to it for their efforts in improving the legislation.
Because that is the entire point of a select committee’s work in considering a bill. As Sarah Pallett noted earlier, the job of a select committee is not to reach consensus on a bill - it is to make it the best law it can be, regardless of how they may plan to vote on it later.