Legislation targeting sexual exploitation of children needs to be fine-tuned to avoid penalising naive, rather than criminally motivated, young people sharing objectionable material online, a select committee has been told.
The justice and electoral committee today considered submissions on the Objectionable Publications and Indecency Legislation Bill.
The bill proposes increasing the maximum sentence for making or supplying objectionable material from 10 to 14 years, and for knowingly possessing objectionable material from five to 10 years.
Law Society spokesman Graeme Edgeler told the committee the bill needed fine-tuning. The range of objectionable publications targeted by the bill was much broader than images of sexual exploitation of children, and could include material not in that category.
"The Law Society questions whether the proposed increases in maximum sentence should be restricted to cases involving images of child sexual exploitation, since this is the principal concern behind the bill," Edgeler said
The Law Society also raised concerns at whether the bill's proposed presumption of imprisonment for repeat offenders relating to images of child sexual exploitation was required.
"The Sentencing Act 2002 already provides that previous convictions are an aggravating factor when determining sentences and it is doubtful the new proposal would have much impact in practice," Edgeler said.
The presumption of imprisonment provision would produce the same outcome as the current sentencing principles, which required judges dealing with repeat offenders to consider the circumstances of the offence and the offender, he said.
The bill also created a new criminal offence of indecent communication with a young person under 16, which included text or picture messaging, internet chat, and telephone - regardless of whether a record of the communication was made by the offender.
The National Council of Women said a lack of definition of "indecent material" in the bill raised concern when the consequences of a conviction would have a severe impact on the life of a young person.
The difference between punishment for adults who deliberately sought to involve children by using objectionable publications, and young people who "in the excitement of the moment" might publish material on social media which would fall into this category was significant, council member Jean Fuller said.
The bill proposed a person aged 16 could be liable for imprisonment. Many teenagers lacked the maturity to understand the restrictions the bill imposed, Fuller said.
"Our members were generally supportive of the longer sentences and stronger penalties for adults who deliberately offend and could be expected to know the penalties."
But young people should be reprimanded and provided with further education about the use of material which could be considered indecent, she said.
"Longer sentences might be appropriate for adult or repeat offenders but we do not see this as being a suitable way to cope with naive teenagers.
"We have heard of other jurisdictions where teenagers have ended up on a sex offenders' list.
"This should not be the objective of this legislation," Fuller said.
The bill's definition of possession of objectionable material was amended to ensure offenders with particular technical expertise did not escape liability by viewing objectionable publications without saving them.