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Harmful Digital Communications - Final Reading

Delivered by David Seymour on June 30, 2015. Video can be viewed here.

It is an enormous privilege to live in a society that benefits from 800 years of common law that has given us, among other rights and freedoms, freedom of speech. It started, perhaps, most colloquially as the simple idea that “sticks and stones may break my bones but words will never hurt me.” In actual fact, what has evolved is the idea that sometimes words can hurt, and over that long period of time an intricate network of defences evolved so that people could, for instance, defend themselves against damage to their reputation that was done deliberately and was untrue and where the audience might be led to believe that it was true. That is our inheritance—800 years of trying to figure out how exactly to protect freedom of speech on the one hand and people’s right not to be unfairly maligned on the other. Another great privilege that everybody in this room has—at least, everyone on the floor—is membership of this House of Representatives. To use the second privilege to destroy or at least erode the first one in the way this bill does is something that I cannot support, and therefore I must vote against this bill.This bill is a case study in bad law-making. All of the elements in making a bad law exist. Not since we microchipped dogs in the hope that it would prevent a particularly egregious dog event has there has been such a bad law before this House. First, you had the high-profile and really quite disgraceful event. Then you had the discovery that in actual fact the laws in place had not been properly used by the agency in place to prevent the harms that occurred there. Then you had the knee-jerk reaction from the politicians who said: “We must do something. This bill is indeed something, therefore we will pass this bill and it must be the right thing to do.” What exactly does this bill do? Well, the first thing that it does is introduce a set of communications principles that might be appropriate if we were about to embark on a school camp but are not appropriate for the government of 4.5 million people, many of whom are adults—and the children among them are the responsibility of adults. It says that you cannot offend somebody. So, for instance, would Flight of the Conchords’ song Albi the Racist Dragon be offensive if it was communicated online? Well, we are told in defence of the “badly burnt Albanian boy” from last week that of course this law would never be used in such a silly and nonsensible way. That is the problem with the law—it gives no protection. We are supposed to rely on the beneficence of the enforcers. That is bad law-making. If you were to say: “Happy 31st Liz”, would that be giving away information that you should not reveal of a personal nature about another person? Would that be a bad example? How much of these bad examples will actually end up discouraging freedom of speech in what you might call a chilling effect.

As I said in my maiden statement to the House, it is ce qu’on voit et ce qu’on ne voit pas. It is not just what is seen, but all of the unseen expression that will now not occur because of the chilling effect of the communications principle if the enforcement of it—even if not quite criminal yet, you understand; you are going to be OK—by the approved agency is brought to bear. Perhaps that is why Voltaire said: “I defend to the death your right to say what you say”, even when those are things he might have disagreed with. It is a sad day in this House when you have to rely on lots of dead Frogs to stand up for your civil liberties—and you probably will not be able to say that very soon either. It might be worthwhile to have this law if we truly believed that it was going to reduce harm and protect people. But in actual fact, as soon as you start to look at the contradictions, you can see it will make little if any difference to reducing harm for people online. And there is genuine harm to be mitigated. You will find that there were much, much simpler, more straight-forward ways of doing it with far fewer side effects. For example, we are concerned that children will bully each other. So the idea is to introduce criminal sanctions, but, of course, you understand, we are not really introducing criminal sanctions for children because they will go through the Youth Court. So somebody might ask why you would make a law that you did not intend to be properly enforced, or, for another contradiction, you might ask how quickly most viral phenomena on the web take place. Well, under this law you have at least 96 hours of back and forth before any kind of order can be enforced. So you might ask yourself how this seriously addresses the problem that most people face. Well, I suspect, that there is very little coincidence in the fact that it is the youngest members of this House who are most opposed to it. It is fundamentally a generational conflict—a law imposed by people who are not digital natives and who do not understand how the internet works on users of the internet who do. The pace of development on the internet is so rapid that in actual fact the incentive for the hosts of content is to give good experiences. If it is true that harm is being done, then the one person who has both the incentive and the means to rapidly mitigate that harm is the host, whether that be Facebook, or Ask.fm, or Twitter or whoever else hosts the website. For the same reason that harmful digital communication becomes exponentially greater, those people have the tools to mitigate it. But you do not hear that from the Government or from the supporters of this bill. There is a moralising tone from them: if you have nothing to hide, then you have nothing to fear, and these vague principles will not be enforced for silly reasons, you understand, and as long as you are sensible and you are doing nothing wrong, it will not be used against you. That is something that I cannot explain any further. Anybody who does not see the problem with that construction is incapable of having it explained to them, but for those who do understand it, it is why it is critical that this type of legislation becomes rarer and eventually becomes obsolete in terms of being introduced to this House. Of course there are real concerns. Nobody denies that incitement to commit suicide, and revenge porn, are serious dangers, and they are dangers that have come to some extent from technological advances. It would have been very simple—and I have to thank the Labour Party for supporting my Supplementary Order Paper last week—to simply say in the Crimes Act that it is a crime to make an intimate digital recording and distribute it without that person’s consent, particularly if your aim is to do harm.

Harmful Digital Communications - Speeches in the House

Delivered by David Seymour in two parts on June 23, 2015. Video can be viewed here and here.

Part 1:

Any member of a House of Representatives has to balance the competing prerogatives of the people they specifically represent, their political party and its philosophy and their own conscience. This is the first time that I have voted against a bill introduced by the National Government. It is because the people I directly represent generally believe that it is better to have these people over here, and those people over there, and by and large I would agree with their analysis. I am, after all, from Epsom myself. However, as somebody who benefits from a free society and a long, evolved common-law tradition, I believe the right thing to do is to oppose the Harmful Digital Communications Bill and at the very least remove some of its most egregious features.

In time I predict that this legislation will come to be seen as a useful case study in bad lawmaking. It is the classic case. First, you have the dramatic events, to which people feel the need to respond. We have actually heard it tonight. Perhaps unwittingly they did not mean to come out, but it came out from some members. “We have to do something.” is the major premise; “This is something.” is the minor premise. The conclusion is that passing this law must be the right thing to do. You have the hand-wringing, and then you have the legislation, and, finally, you end up in a very different place from where you started. It might also be an insight into why our profession, if it can be called that, slipped in only just in front of journalists, when the public was asked very recently to rank the professions in a survey of public trust. That is because we tend to overpromise. The promise implicit in this bill is that we in this House can set up an approved agency that will actually solve one of the biggest problems that we have. The rhetoric is that if you do not support the bill, then you are in favour of the most awful things that occur. Well, I see that Mr Bishop and I both quoted Milton Friedman in our maiden speeches, saying that policy should be judged not by its intentions, but by its outcomes.

The outcomes of this legislation, were it to be passed in its present form, might be compared with the Star Chamber. History does not repeat, but sometimes it rhymes. This is not the first time in our constitutional history that our society has attempted to solve a problem by giving easy and convenient access to justice without the safeguards and restraints that have evolved elsewhere in common law over a long period of time. Of course, if you know your history, what happened was that the Star Chamber became a bully pulpit, which was used by the politicians of the day to cow their opponents in fear and submission. Although, fortunately, we are no longer in medieval England, the same principal deficiencies exist in this piece of legislation. I would direct members to the communication principles, which would be appropriate if we were about to embark on a school camp, but not for running a country. They tell us that it is wrong to disclose sensitive personal facts about another individual, for example. They say you should not be indecent or obscene, or that you should not harass another individual. In their totality it requires only one of them to be breached for you to be reported. They mean that practically any digital communication could be subject to the full force of this approved authority.

Of course the rhetoric from the proponents of the bill is always similar to the epithet “If you’ve got nothing to hide, then you’ve got nothing to fear.” They say: “Oh, don’t you worry. If you’re being good, then this will not apply to you.” Where you end up, just like with the Star Chamber, is with arbitrarily enforced bad law that can be used sometimes for good and sometimes for bad. It just depends who happens to be enforcing the law at any particular time. Of course you might say: “Well, this is all worthwhile if only we believed that it was truly going to reduce harm and suffering.” If you believed that it was going to be effective, then you might be willing to trade away some of the rights and freedoms that we have been lucky to inherit over a long period of time. But you only have to begin with a few of the simple practicalities.

We have heard from members already about the difficulty of 48 hours being far too long on the internet. It reminds me of a quote from Top Gun: “BS 10 minutes! This thing will be over in two minutes.”

The fact of the matter is the time frames and the evolution of viral trends on the internet, about which we heard from the first member speaking, are far quicker than intervention can take place. The pace of development of new websites and new fora is so rapid that it is unlikely that we will be able to enforce what Tracey Martin referred to as the invisible threats from the internet. Take, for example, the website Ask.fm, where many young people voluntarily put themselves out, almost to be harassed, some would say. I have asked some young people: “Why on earth do you do this?” And they say: “Well, actually, we want to go there. We want to address concerns. We want to argue.” And of course many of the most tormentuous questions they face come from invisible questioners—people who, as a practical matter, cannot be identified. So there you have a whole range of activity that this bill would have no effect on mitigating whatsoever, and yet, none the less, is a very real concern to young people. Interestingly enough—and this is another deficiency of this policy project we are going on—Ask.fm has since introduced quite stringent safety and monitoring regulations voluntarily, because, ultimately, it is not in its best interests to have people coming to its website and having bad experiences. So, again, we have underestimated the speed with which hosts will actually seek to improve the experiences that people have on their websites.

But then you come to the question of criminalisation. It is said that we have to be in favour of this bill because we have to do something for the children. Well, the fact of the matter is that criminal sanctions are effective only if you are seriously prepared to use them against the poster, as we have heard, or the perpetrator. Nobody in this House, I believe, is seriously willing to criminalise children, but that would be the proposition if criminalisation was supposed to be an effective sanction against bullying of children. So I oppose Supplementary Order Paper 91 in part for procedural reasons. It is in some ways an improvement; although, as Mr Parker pointed out, it is also a step backward for every step forward. I oppose this Supplementary Order Paper for procedural reasons because, as members will know, I have put up another, Supplementary Order Paper 93, which removes the criminalisation element. You can still have your approved agency and you can still have your resolution, but it removes the criminalisation and applies the criminal law to specific testable, discoverable offences. If you take an intimate visual recording with or without the consent of the person in the recording, and if you perpetrate this and then propagate it around the internet without their consent—perhaps without their knowledge—that is a crime. I do not think anybody in this House would say that that should not be a crime.

If we wish to address a certain mischief, let us address that mischief. And if we are prepared to do that, you never know, we might find ourselves making better law. Indeed, we might even improve the impression of our own profession that the public has, if, rather than overpromising in knee-jerk reactions to particularly high-profile scandals, we actually set about to make proportional responses to problems that really exist out there in our community and that the Government and its agencies have an opportunity to actually fix while respecting our common-law traditions.

Part 2:

It has taken quite a long time but after almost two decades, it is nice to see a thawing in my trial separation with my Labour Party ancestors. On this issue we find common cause because, as I said earlier, it is a case study in bad lawmaking. All of the elements are there: you have a high-profile case that leads to a reaction, where any lawmaking appears to be a solution; you have a solution that will erode our liberties, and yet not seriously mitigate the harm; and, at the end of the day, the politicians end up looking like they have done their job—they have done something—but the welfare of citizens has not been improved.

As a little bit of insight into why this may be: I am a recovering electrical engineer, and one of the things that our profession has done is produce Gordon Moore. Well, we did produce Gordon Moore, and he produced Moore’s law. Moore’s law will tell you that approximately every 2 years the total power available, in terms of computer processing speed, doubles. That has meant a couple of things: it has given us some of the impetus for this bill, and it has meant that hate speech can spread farther and faster than at any previous time in history. And that certainly scares people. But it also means that the remedies for hate speech and bullying are more sophisticated than they have ever been before, and we see those remedies coming from those very hosts of online intercourse—the Facebooks, the Ask.fms, or whatever they may be—just as quickly as the problems emerge. So this is, fundamentally, a technological change, but the technological change has provided not only the problem but also the remedy.

It has also opened up a larger and larger gap between an exponentially faster internet, with a larger and larger velocity of transaction, and a Government apparatus that, as Kris Faafoi pointed out, leaves you with 4 days before there can be any response. We had a speaker earlier—in fact, the first speaker in this debate—who alluded obliquely to a political party that is not in this House but that has been involved in some scandal recently, and it is interesting that she raised that question because, first of all, the individual involved is among the most litigious in New Zealand politics today. He is someone who would actually use and abuse this law—much as the Star Chamber was used and abused—to silence his opponents. But also that entire scandal, if there is any mercy in the world, will by tomorrow have been fit into a 96-hour period during which, for the whole time, the approved agency would not have been able to make a useful response. That is, funnily enough, the result of Moore’s law: there are physical underpinnings to these occurrences. I have gone on before about why criminalisation cannot be supported.

[Tracey Martin: It doesn’t apply. It doesn’t apply, Mr Seymour.]

I have to say that I am listening to some interference from over there that reminds me of a blogpost that I saw recently on a popular blog, asking the question: “Is Tracey Martin the full quid?”. That is the kind of posting that might well be silenced by this bill. But I return to the subject.

I have put forward a Supplementary Order Paper on this bill, which would make a very simple change that would deal with one of the most egregious and demonstrable offences that has been made possible by modern technology and that is a new offence that I think we can all live with, because it will not spread beyond scope. It is easy to prove. It is easy to disprove. It is easy for the law to discover whether the offence has happened and whether it is deserving of punishment. And that offence is, simply, when a person has made an intimate digital recording, with or without the consent of the recordee, and has then propagated it across the internet—propagated it rapidly, as you would expect in an age of increasing computer power. That is an offence. I do not think there is anyone in this House who would disagree that that should be an offence. The Supplementary Order Paper that I have put forward asks that that be put in its proper place, in the Crimes Act; not by creating new offences.

That is why this legislation, and the episode that led to it, is a perfect example of bad lawmaking. You had a high-profile incident. The agencies that were supposed to deal with it were incompetent and did not deal with it. The laws that existed and that were supposed to be enforced were not enforced, and today we find ourselves, rather than addressing that problem, creating a new agency to be approved, and new laws, in order that the same problem can be targeted. If you were a Martian who had recently landed on Earth—not thinking of anybody in particular—then of course one would think that that is completely nuts. So I appeal to the Committee—its conscience and its sanity—and to those who want our profession to be well respected, to say that we should not, as Jacinda Ardern put quite eloquently, I thought, try to pass a law and be seen to do something and then to wring our hands and wash them clean. Actually, we should put the legislation and the public policy measures that are required in the place they really deserve to be. That place is the Crime Act. That is creating a real crime, responding to the real technological change that we face, and responding to something that is egregious, that is easy to demonstrate, and that has been made possible by technological change. We should put that in the Crimes Act. That is to say that if you make an intimate digital recording of a person and propagate it across the internet, or digitally, without their consent, you have committed a crime.

If that Supplementary Order Paper were to be supported tonight, that would be this House’s insurance against the possibility that this broader piece of bad lawmaking will not succeed—that sanity will prevail, that the integrity of the political profession will prevail, and that this House will vote down what will otherwise become, and I guarantee this, a textbook example of bad lawmaking, with all the elements of bad lawmaking that we have become so used to seeing coming out of this House. So I end my appeal. I think it has become clear to all those in this Committee capable of comprehending simple ideas that this Supplementary Order Paper is the right thing to do, that it would improve the quality of lawmaking, and that, ultimately, it would improve the welfare of all New Zealanders through better public policy. Thank you.  

Free Press - Free speech and Green tweets

The Harmful Digital Communications Bill
David Seymour fears this will be another case study in bad law-making and outlines why he opposes this Bill here. You have some dramatic event, to which people rightfully feel something should be done. Politicians feel compelled to do something. Creating a new law is doing something. It’s easy to assume it’s the right thing to do.

Revenge Porn
This is a serious issue which should be dealt with by extending the intimate covert filming provisions in the Crimes Act, and not relying on the “general causing harm” offence in a new Bill.

Asymmetries
The Bill creates a strange asymmetry between the ‘online world’ and the ‘non-digital world’. The ten communications principles would be a good guide to desirable behaviour on a school camp, but are problematic as written in this Bill. The Harmful Digital Communications Bill could itself be used to bully people or the media into taking down legitimate material.

Free Speech
This Bill will be ineffective in protecting vulnerable kids and will very likely be used as a weapon to curtail free speech. As stated famously by Voltaire, free speech involves adopting the view that while “I may disapprove of what you say, I will defend to the death your right to say it”.

More Fatuous Stunts
The Green activists were at it again last week, climbing onto Parliament House with eight solar panels. Why not do something useful for a change? How about dropping them off to some schools in a poor but sunny part of the country?

We all Love Solar
Anybody familiar with the relentless decline in solar module prices can see an energy transition is ahead. The dumb thing is to think we should all rush out and buy solar modules now. The rational thing, the Smart-Green thing, is to wait until they are genuinely cost competitive in your little patch of the world. Or to wait even longer, because they will keep getting cheaper.

Investors are on to This
Financial markets have been buzzing over this for years now. For example, just last week Bloomberg had a story titled, The Way Humans Get Electricity is About to Change Forever. So quit the stupid stunts, just let the entrepreneurs and scientists sort this out. Let’s avoid the shambles that has resulted in Germany and elsewhere. 

Germany
Last week a Green MP tweeted: If you follow 'extreme' Green policies...Actually, you get an enormously successful exporting economy like Germany.  Germany a green success? Really? That country best known as an export success in heavy industrial machinery, fossil fuel using vehicles, pharmaceuticals etc?

Germany and Renewables
If you have been following the energy news from Germany you will have read things like this, regarding Germany’s Green energy experiment:  The cost of government subsidies for green energy is passed directly through to consumers. As a result, German households pay twice as much for electricity as their US counterparts. Prices for industrial customers have risen more than 30 per cent over the past four years (Financial Times).

And Bad for the Environment
Then you see articles in the Economist magazine titled: What has gone wrong with Germany’s energy policy?  An unintended side-effect of the policy has been that renewables have undercut relatively climate-friendly natural gas on price. To make up for the loss of generation as nuclear was taken offline, traditional utilities have turned instead to much more climate-damaging coal. CO2 emissions have increased. Talk about unintended consequences!

The Result
German consumers are facing steeply rising power prices. German newspapers feature stories of people stealing wood for fuel from lumber yards and forests.

The Point
It’s not that solar is a bad idea, it’s just that for most places it’s not yet cost competitive without subsidy. But it won’t be long before it is. Timing is everything. Start in places where it is very sunny. As costs keep falling, and if and as battery storage improves, it will become a no-brainer to install. Let the market drive it. Keep government out of it. And especially keep Green politicians away:  they don’t understand markets, and they don’t understand the network supply and demand complexities of electricity generation and distribution. Inner-city, green leftie types have a knack for creating policy shambles that make ordinary people poorer. Beware.

The TPPA
The TPPA roadshow has stuttered back into life. The economist Tyler Cohen, co-author of the Marginal Revolution blog, wonders what it would take for him to change his mind, and oppose the TPPA. Given all the studies showing the huge welfare gains to come from expanded free trade, he concludes he would need to see a study which used a better trade model, used better data, and/or added in the neglected costs of TPPA (which are real), and that overall showed the welfare gains going away and becoming negative. But there aren’t any.

Opponents of the TPPA
Instead of Cohen’s test, all we get from opponents of the TPPA are various assertions about possible negative consequences of the TPPA. As Cohen says, “the more desultory lists I see of possible negative consequences of TPPA, the more likely I am to think it is a good idea after all.”

Oh not Again!
An enthusiast tweets: Moana Jackson and other Maori leaders have filed an urgent claim in the Waitangi Tribunal alleging the TPPA negotiations breach the Treaty. Will this nonsense ever stop?

Speaking of Nonsense
The PPTA seems to be channeling the old-style militant unionism of the 1950s, as their blog writers utterly lose the plot. At least it’s clear whose interests they represent – it sure isn’t children or student teachers. Read it here for yourself: http://www.ppta.org.nz/resources/ppta-blog/big-shout-out-to-ppta-members-in-northland

Labour Milking It
Labour are outraged about milk costing more than coke. But of course. Milk is the product of a wondrously complex biological, economic, and logistical process, limited in its production by environmental and regulatory constraints, and constrained in its provision by its perishability. Whereas coke is essentially sugarwater. Why is milk more expensive in New Zealand than in London? Simple. British supermarkets use milk as a loss leader to signal low prices.

Auckland Council
Well, they did it, they voted for the big spending plan. We wonder how many of the ten councillors who voted for this 9.9% rate increase will still be councillors after the next election?

Schadenfreude
Apparently “The Conservatives are not dead”. It’s a reworking of the parrot sketch. 

Free Thoughts - Harmful Digital Legislation

The Harmful Digital Communications Bill looks set to pass into law next week. I have voted against it, and have moved amendments in an attempt to improve the Bill. I want to explain why I oppose this Bill.

The legislation has good intentions – to protect people, especially young people, from online bullying.

But we can’t judge policies and programs by their intentions. It is results that matters. Bad legislation with good intentions is still bad legislation.

The Government faced a difficult task. Any law in this area must balance the need to protect its citizens from harm and the need to protect free speech, including freedom of the press. As stated famously by Voltaire, free speech involves adopting the view that while “I may disapprove of what you say, I will defend to the death your right to say it”.

What does the Bill do?

The Harmful Digital Communications Bill applies to digital communications. The Bill creates an Approved Agency that will receive, investigate and assess complaints against ten communication principles set out as a guide for the Agency and the Court. The approved agency can negotiate between parties to resolve complaints. They do not have the power to issue a takedown order.

More significantly, complaints can be brought to the District Court if they breach one or more of the communication principles and harm is caused. The District Court can order a take-down, correction, right of reply and/or an apology.

A criminal offence is also available to the District Court if a person fails to comply with a District court order or if the person intended to cause harm, caused harm, and it would have caused harm to a reasonable person.

One of the classic ways bad law is made is when you have some dramatic event, to which people rightfully feel something should be done. Politicians feel compelled to do something. Creating a new law is doing something. It’s easy to assume it is the right thing to do.

The RoastBusters case, where the police decided not to charge, was the catalyst for this Bill, and triggered all those steps I have just described.

But later the Independent Police Conduct Authority examined the Roastbusters case and found that police did not “consider all available offences in reaching their decision not to charge.” In short, the case could have, and should have, been dealt with under current law. For that case, we did not need a new law.

But Parliament is nevertheless creating new laws and a new agency.

How then should we deal with serious online problems, especially when criminalisation is on the table? We should start by updating existing laws.

The second part of my proposed amendment attempted to do just that. The particular issue here is ‘Revenge Porn’ - where an intimate recording is taken with consent but shared online without consent. This is a serious issue and the current loophole in the Crimes Act needed to be closed. There is no doubt that this behaviour should be criminal. But the right way to do this is by extending the intimate covert filming provisions in the Crimes Act, and not relying on the “general causing harm” offence in a new Bill.

Only Labour supported my amendment, which was voted down by all other parties.

I also attempted to move an amendment which would have removed the introduction of a new criminal offence for posting a harmful digital communication. These criminal provisions are worrisome for several reasons.

Firstly, the Bill creates a strange asymmetry between the ‘online world’ and the ‘non-digital world’. Conduct that is legal offline would be criminal online. The criminal aspect of the Bill also lacks specific reference to the public interest, and other important defences that are available under existing laws.

There is also a strangely surreal aspect to the law. It is written as though it came before digital communications. The period of time required for a take-down is 48 hours. A counter appeal could leave a total of 96 hours. And this is after a potentially very slow District Court process. The reality is that most internet phenomena, be they Twitter wars, viral videos, or popular memes, go from nowhere to ubiquity and all the way back well within that period.

Then there is anonymity. It's not difficult to hide one's identity online. Often that's the point. Ask.fm, for instance, long allowed anonymous people to ask (often cruel and vexatious) questions of each other anonymously.

Then it stopped and required registration. Presumably this was because people want a good experience online – it makes business sense. And this is how the market is quickly responding. The remedies for bullying are more sophisticated than they have ever been before, and we see those remedies coming from those very hosts of online material—the Facebooks, the Twitters, or whatever they may be—just as quickly as the problems emerge. The technological change has provided not only the problem but also the remedy for many.

Finally, criminalisation will likely affect the very people the Bill is trying to protect – young people. Potentially we could see a 14 year old criminalised for something they foolishly posted online.

I also have wider concerns about the Harmful Digital Communications Bill. In particular the effect the ten communications principles, the Approved Agency, and District Court takedown orders will have on Free Speech – a cornerstone of any free society. Our rights are being traded away in this Bill.

Yet, few have even seen the ten vague ‘be nice’ communications principles – principles which might be appropriate if we were about to embark on a school camp, but not written into law. They are listed at the end of this paper.

These principles tell us it is wrong to disclose sensitive personal facts about another individual, to be indecent or obscene, or that you should not harass another individual. It requires only one principle to be breached for you to be reported to the Approved Agency. The next stop could be the District Court, facing a take-down order. Add the intention to cause harm, and actual harm, and you are approaching criminal territory – with the threat of up to 2 years in prison.

Imagine how easily these principles could be inadvertently broken by tweets, online newspaper articles, blogs, emails, posts on Facebook, or comments on websites.

It is also easy to see how the Harmful Digital Communications Bill could itself be used to bully people or the media into taking down legitimate material, especially when they are threatened with the time and process of the district court process.

We note that similar legislation overseas has encountered serious problems. For example, last year New York's top court struck down a law that made cyberbullying a crime, because it violated free speech.

This Bill will be ineffective in protecting vulnerable kids and will very likely be used as a weapon to curtail free speech.

David Seymour
ACT Leader

The Bill's 10 communication principles:

  1. A digital communication should not disclose sensitive personal facts about an individual.
  2. A digital communication should not be threatening, intimidating, or menacing.
  3. A digital communication should not be grossly offensive to a reasonable person in the position of the affected individual.
  4. A digital communication should not be indecent or obscene.
  5. A digital communication should not be used to harass an individual.
  6. A digital communication should not make a false allegation.
  7. A digital communication should not contain a matter that is published in breach of confidence.
  8. A digital communication should not incite or encourage anyone to send a message to an individual for the purpose of causing harm to the individual.
  9. A digital communication should not incite or encourage an individual to commit suicide.
  10. A digital communication should not denigrate an individual by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability.

Vote out the abstainers –Seymour

Epsom MP David Seymour says councillors who abstain on voting for Auckland Council’s 10-year budget deserve to be voted out.

“As a central government politician it should not be my role to address those concerns. However, I’m contacted by people across Auckland furious about rate rises.

“Councillors are elected to stand up and be counted. That’s their role, especially on such an important transaction as setting a 10-year budget for the Auckland Council.

“If they won’t do so, this is a clear sign they don’t wish to be re-elected.

“Indeed, given certain councillors will not do their job, the honourable thing for those councillors to do would be to resign.”

 

Government’s digital speech restrictions go too far

ACT Leader David Seymour has indicated he cannot support the Government’s Harmful Digital Communications Bill due to what he sees as an overly broad focus and potential criminalisation of young people.

“The Bill’s communication principles are too broad to be easily interpreted as law. Ordinary internet users, especially young people, could fall foul of the criminal provisions of the law for minor missteps.

“It’s a classic example of why we should not simply judge laws by their intent, but consider their possible unintended consequences.

“ACT takes the online safety of young people very seriously. This is why we support stronger enforcement of existing harassment laws, and amendments to the Crimes Act where needed.

“ACT’s Supplementary Order Paper, supported by Labour but voted down by the government today, would have removed most of the criminal provisions, and transferred the provision covering revenge porn to the Crimes Act.

“Instead we are left with an overly broad, unenforceable piece of legislation which countless ordinary people would inadvertently breach every day. This law risks becoming open to abuse by the very bullies it is intended to target.

“New York’s top court recently struck down a similar law for violating the First Amendment. Indeed, any restriction on communication should be balanced against the need to protect free speech. I fear this law does not achieve such a balance.”

Free Thoughts - End of life choice

The contentious issue of voluntary euthanasia is one I have been considering for some time, and I want to explain here why I am preparing a private member’s (End of Life Choice) Bill to lodge for ballot in Parliament.

The primary motivation for this Bill is compassion.

Many of my constituents have urged me to proceed with a Bill, particularly in light of the withdrawal last year of a similar Bill sponsored by Iain Lees-Galloway, originally introduced by former MP Maryan Street. Two previous Bills on this issue have in the past failed to gain Parliamentary support, but the clear international trend since the 1990s is towards the legalisation of medically assisted end of life choice.

The motivation for this Bill is the very real anguish faced by people with terminal illness, as they anticipate the prospect of intolerable suffering, and the indignity of the final few days and weeks of their lives. While pain can be ameliorated somewhat, the suffering and indignity of that final period of life remains a profound concern to many people.

The intention of the Bill is to allow people with a “grievous and irremediable medical condition” to obtain medical aid to die if they should so choose.

I appreciate that within our community there is a wide range of religious and philosophical views which influence attitudes to this issue. What is unthinkable for some, is considered by others the most compassionate way to address the inevitability of end of life, and the realities of terminal illness.

The Bill I intend to lodge will offer choice that is currently prohibited, for those in our community who are grievously and irremediably ill and who wish to have the option, as they near life’s end, to choose the manner and timing of their final days.

The protections designed to avoid potential abuse are crucial, and would need to be fully examined before any final Bill was to return to the House. A Select Committee process considering specific proposals will enable all these matters to be considered in detail and in public, will provide an opportunity for the full range of views in our community to be heard, and will allow us to examine the international experience.

There are several key considerations behind my intention to lodge a private members Bill.

In my view it is politically, morally, legally and, in terms of public policy, the right thing to do.

I will consider each of these in turn.

Legally this is the right thing to do.

As noted in the recent judgement on the Lecretia Seales case, the issue of end of life choice is a matter for Parliament to determine.

Likewise, earlier this year the Canadian Supreme Court determined unanimously that "The prohibition on physician-assisted dying infringes on the right to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice."

But the Court suspended its judgement for 12 months, giving the Canadian Parliament a year to draft new legislation to reflect that judgement.

This reflected a view that it is a matter for Parliament to decide, not the Courts. Legislation to give effect to assisted dying will involve very many detailed ethical, legal and practical considerations.

The scrutiny of a select committee process, examining a concrete proposal, is the best and most thorough way of considering this issue.

In terms of appropriate legal process, introducing a Bill to Parliament is the right thing to do.

Morally this is the right thing to do.

The difficulty with assisted dying is that we are attempting to balance competing values, each of great importance.

The first is the sanctity of life and the need to protect the vulnerable. The second is the autonomy and dignity of a competent adult who seeks to end their life as a response to a grievous and irremediable medical condition.

The difficulty is that an absolute prohibition on assistance in dying effectively creates a “duty to live” rather than a “right to life”.

An absolute prohibition on assisted dying also calls into question the existing legality of any consent to the withdrawal or refusal of lifesaving or life-sustaining treatment. Yet already there is a degree of societal consensus that the administration of palliative sedation and the withholding or withdrawal of lifesaving or life-sustaining medical treatment, which can have the effect of hastening death, are ethically acceptable.

Protracted dying was once rare; death typically came swiftly. But medicine has advanced, and now a protracted death is common.

By acknowledging this reality, the argument can be advanced that it is also ethical for voluntary adults who are competent, informed, grievously and irremediably ill, and where the assistance is clearly consistent with the patient’s wishes and best interests, and in order to relieve suffering, for them to have the option of physician assisted end of life.

In short, an absolute ban on assisting another person to end their own life can amount to condemning a person to a life of severe and intolerable suffering.

It was for that reason the Canadian Courts concluded that the ban on assisted dying was too broad – by justifiably attempting to protect the vulnerable, it denied the rights of some individuals in a way that bore no relation to the object of the law.

As the Court said, “A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.”

That is why the international trend since the 1990s has been for Parliaments to recognise that, in certain well defined circumstances, an individual’s choice about the end of their life is entitled to respect.

The international evidence was closely examined in the Canadian courts. There it was stated that an absolute prohibition on assisted dying would have been necessary if:

  • The evidence showed that physicians were unable to reliably assess competence, voluntariness, and non-ambivalence in patients;
  • That physicians fail to understand or apply the informed consent requirement for medical treatment;
  • Or if the evidence from permissive jurisdictions showed abuse of patients, carelessness, callousness, or a slippery slope leading to the casual termination of life.

But after an exhaustive examination of the evidence these possibilities were rejected. The judgement found that properly designed and administered safeguards were capable of protecting vulnerable people from abuse and error, that the elderly or people with disabilities are not at a heightened risk, and that there was no evidence of a slippery slope.

Before any changes to New Zealand law are contemplated, these issues should be considered afresh by our Parliament.

Morally, reconsidering the law on end of life choice is the right thing to do.

Politically this is the right thing to do.

My job as a Parliamentarian is to represent the voters, and that involves reflecting the will of the public, insofar as that “will” makes sense and is not inconsistent with my fundamental beliefs.

On this issue, for some MPs, there will inevitably be a clash with some profoundly important religious or philosophical beliefs.

That said, the public clearly wish this issue to be debated, so that regardless of one’s personal view on the matter, this is an issue which deserves to be placed before the House – as I will seek to do with my Bill – and which deserves also to be taken at least to select committee for the sort of thorough review that the Canadian case examined.

Advancing the consideration of End of Life Choice through a Bill to be thoroughly examined via select committee, is the best way to respond to the wishes of the NZ electorate.

I concluded therefore that, politically, introducing my Bill is the right thing to do.

In terms of public policy this is the right thing to do.

The law against assisting somebody to end their life, is of course a ‘generally sound law’. But it is also one which has an extraordinarily harmful effect on a small number of individuals.

As the Canadian judgement determined, that law is overly broad.

As a matter of public policy, we need to reconsider the situation of that small number of persons who:

  • clearly consent to the termination of their life, and
  • have a grievous and irremediable medical condition, including an illness, disease or disability, that causes enduring suffering that is intolerable to the individual.

The eventual scope of any Bill which might be returned to the House from a select committee review is not to be determined here.

My case is that New Zealand needs and - as is evident from recent opinion polls - wants this debate.

Our Parliament should facilitate this discussion by considering this issue afresh through the mechanism of a Bill passing its first reading in the House and proceeding to select committee review.

All New Zealanders should have the opportunity to be heard on this matter. The discussion and review should not be rushed.

My End of Life Choice Bill, when lodged and if drawn from the private members’ bill ballot, will allow this much needed review to occur.

It is the right thing to do.

David Seymour
ACT Party Leader

David Seymour welcomes assisted dying petition

A petition campaigning for a public inquiry into assisted dying has been welcomed by Epsom MP David Seymour, who accepted the petition with Iain Lees-Galloway, Chris Bishop, and Kevin Hague today.

“There is clearly significant desire for a public debate on assisted dying. This petition, along with the recent High Court decision regarding Lecretia Seales, shows the time has come for Parliament to take up the issue.

“To this end, I am preparing a Bill which will allow medically assisted end of life choice. I believe this is the best possible course of action, as once drawn from the ballot a Bill will immediately begin the process of a law change. An inquiry will result in a recommendation, but from that point any Bill would have to begin the legislative process from scratch.

“In saying that, I hope today’s petition results in a select committee inquiry as soon as possible, as whatever the outcome, an inquiry will prepare Parliament for the necessary debate surrounding any Bill.

“My Bill will allow autonomy and dignity for a competent adult who seeks to end their life as a response to a grievous and irremediable medical condition. But it will also include comprehensive safeguards for protecting the vulnerable.

“A thorough select committee and public consultation process will ensure these safeguards are well-designed and effective.”

Government must clarify role of volunteers under health and safety reforms

The government should use National Volunteer Week to clarify how the Health and Safety Reform Bill will affect them, says ACT Leader David Seymour.

“While thanking volunteers for their work, the government is trying to push through a law which would place new regulatory burdens on voluntary organisations,” said Mr Seymour, referring to the Health and Safety Reform Bill currently before select committee.

“The Bill has been criticised by Volunteering NZ and Local Government NZ for the liabilities it places on organisations and their board members.

“In a situation like a working bee or disaster clean-up, a certain level of risk is expected by casual volunteers. Making organisations liable for this risk could discourage volunteers from taking leadership positions, and force those who did to reconsider working with casual volunteers who would fall under the strict new regulations.

“I have been approached by constituents in my electorate who are concerned they will be in breach of new regulations despite being involved in low risk activity.

“People who volunteer are rightly celebrated, but they need clarity around what liabilities they’re taking on by doing so. Otherwise there will be a chilling effect on volunteers nationwide, to all of our detriment.

“Volunteer initiatives are vital to the health of a free society. People who sacrifice their time for causes they’re passionate about put more care into their work than anonymous bureaucrats on fixed salaries.

“That’s why the Minister for the Voluntary Sector should stand up for volunteers by challenging regulatory overreach.”

Free Press - A new low for the PPTA

A New Low for PPTA
Up and coming reporter Jessica Roden of the Northern Advocate has revealed PPTA members black-balling a Whangarei Partnership School teacher from completing his placements at nearby schools.  He has been teaching on the proviso that these placements will complete his qualification.

Disingenuous
All teachers must complete a spell at a several schools before acquiring provisional registration.  The PPTA say the teacher in question can complete his sections at independent or Partnership Schools, knowing full-well this is impossible in the North.

Desperate for Survival
Why does the PPTA behave so disgracefully?  Why so much effort attacking nine small schools? Free Press refuses to believe they represent the sentiments of the average teacher, who is fair minded and fundamentally committed to kids’ welfare.  The PPTA is fundamentally about negotiating collective agreements for teachers.  Partnership Schools do not require collective agreements. QED.

A Forgotten ACT Success
The Productivity Commission, which was originally an ACT initiative, has almost single-handedly introduced economic rationalism to the housing debate.  Whereas such debates can go all over the place, most major players now agree that it’s the land, stupid.

Hammering the Message Home
The latest PC report: on Using Land for Housing, was chock full of great ideas over its 374 pages, and at least one idea that looks dubious. Naturally that’s the one Labour like.

Amidst all the Good Ideas
One notable item was that the exemption on Crown land from rates is unjustifiable. Quite so. Central government dumps regulatory burdens on local government, but is tight fisted in paying for them itself. Allowing local authorities to charge rates on Crown land would encourage agencies to use land more efficiently and would be fairer to ratepayers.

The Rating Base
Councils can charge targeted rates for water, sewage and refuse collection, but cannot levy other rates, including uniform annual charges or general rates on Crown land. One option might be to allow councils to apply uniform annual charges to Crown land. That might encourage them to not push the uniform charge down to the minimum, as has happened in Auckland.

But Which Land?
As a first cut at what might be included, and what not, conservation and recreational land could be excluded. Because schools and hospitals all compete with private organisations, they should pay rates. Road and rail network infrastructure should probably be excluded, but ports and airports are private businesses, albeit often partially owned by councils, so would be included.

And Some Controversial Areas
Land used for religious worship or education, and Maori land of various types is exempt from rates. It’s hard to see how that could be justified.

The Net Effect
Slightly lower rates burden, slightly higher central government tax burden – but better price signals and incentives all round. And fairer.

Means Not Ends
Labour can’t get past its enthusiasm for government-led building projects.  They are more focussed on the builder than what is built.  They seized on the one dubious part of the report: “create an urban development authority to drive large-scale renewal projects in our biggest cities”. Given their penchant for building houses themselves, Free Press wonders why Labour don’t try getting a job in a development company, raising voluntary private capital, and taking the risk themselves.

Good Idea, Inept and Patronising Implementation
That leaked police document last week revealed that unlicensed Maori drivers caught behind the wheel in South Auckland are being referred for training instead of getting a $400 ticket on their first breach.

The Good Idea
People do stupid things, makes mistakes, that’s a fact of life. Policy should give people second chances, giving assistance and direction to do things right, at least where they are not obviously endangering others. But if they persist in breaking the law, then no more second chances. In that sense, the idea seems worthy of at least a trial. Experiments are good.

But the Policy Should be Colour Blind
Focusing only on Maori is simply wrong. What were the police thinking? It’s unfair to all other ethnic groups in our community and is extraordinarily patronising to Maori.

The People’s Republic of Auckland
Yes Auckland, your council rulers have utterly lost the plot. Trade missions overseas, and now ambassadors. Junkets galore.

Lost Tribe of Labour
Not content to just debate the (very welcome) reintroduction of 10 year passports, David Seymour gave Labour a good kicking. Note their reaction to being accused of abandoning the working class.  Truth hurts.

Celebrating Volunteers
Volunteers are vital to the health of a free society. So it’s good to see the government celebrating National Volunteer Week. But perhaps while doing so, it could clarify how its proposed health and safety reforms could affect voluntary organisations by increasing regulatory burdens and liabilities for casual volunteers.

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