Niall Collins (Limerick County, Fianna Fail)

I thank the Leas-Chathaoirleach and Senators. The amendment is not opposed. However, Senators are probably aware at this stage that the Government's approach to the Bill has changed and the Bill is now being opposed. I will expand a little on that. We are pleased to have the opportunity to speak about this Private Members' Bill sponsored by Senators Flynn, Black, Higgins and Ruane.I acknowledge the hard work and sustained effort the Senators have put into getting this Bill to Report Stage and engaging with us on the issues. This work was reflected in the amendments made on Committee Stage in June. When the Bill was introduced in February 2022 it was clear that the objective of updating the language in the Child Trafficking and Pornography Act 1998 was worth pursuing. It is important the language we use in legislation reflects the seriousness of the matters it addresses, particularly when it relates to serious offences against the most vulnerable people in our society.

The phrase "child pornography" was considered appropriate in 1998 to address the need to criminalise effectively sexual imagery of children. It is now widely recognised that this term does not accurately convey the true nature of the harm to victims. Any material that would meet the definition of “child pornography” in the 1998 Act is evidence of the sexual abuse of a child and it is appropriate that the Act should be amended to reflect this. The internationally accepted best practice term today is "child sexual abuse material". The Child Trafficking and Child Sexual Exploitation Material (Amendment) Bill 2022 seeks to bring the language used in legislation into line with our modern understanding of the true horror of child sexual abuse material and the damage caused to young lives by those who commit offences of this nature.

As Members will be aware by now, the Government has decided to oppose the Bill on Report Stage. This is a change to the previous position on the Bill. However, the Government recently published new legislation that will deal with this issue in a more targeted way and does not give rise to the concerns outlined during the debates in the Seanad.

During the Second Stage debate, the then Minister, Deputy James Browne, conveyed the Government's decision not to oppose the Bill. We took the same position again on Committee Stage in June this year, as the aims of the Bill are in line with Government policy and they would clearly be of benefit if they could be achieved. However, as we set out at the time, there are a number of problems with the proposals in the Bill. While these were generally not thought to be insurmountable, they represent significant legal risks. The proposed amendments would have a very broad reach across the Statute Book and would involve a large amount of complex and very detailed drafting work in order to deliver on the objective of removing and replacing every single reference to “child pornography” in every piece of legislation in force. The new Government legislation takes a different approach. Part 5 of the general scheme of the criminal law (sexual offences, domestic violence and international instruments) Bill 2025 will delete the terms “child pornography” and “pornographic performance” throughout the Child Trafficking and Pornography Act 1998 and replace them with “child sexual abuse material” and “child sexual abuse performance”, respectively. References elsewhere in statute will not be replaced. Instead, the legislation will provide for references in any enactment, legal proceedings or other document to “child pornography” to be construed as references to “child sexual abuse material”. This will ensure that appropriate language is used to describe these offences in legal proceedings and elsewhere. It also means that all new legislation related to this topic in the future will use the new language, so the old wording will disappear from the Statute Book as changes are made over time. This will allow for a more considered approach to the impact of targeted changes in more clearly defined contexts, for example, if the provisions for an offence are being amended.

While the amendments made on Committee Stage have improved the Bill, it would still require very substantial effort to get it to the point where it could be implemented. It would be no easy task to find and replace all the references, while still ensuring that the legal effect of provisions for offences and post-conviction reporting requirements are not undermined. Every reference would need to be separately evaluated to see what the impact of making the change would be and how best to mitigate it. A key risk here is that some references would be missed or that the impact of the changes might not be fully anticipated. This is a risk with any amendments to legislation, but the scale of the task magnifies the risk.

The proposed amendments to Long and Short Titles of legislation carry a risk to the legal certainty that is required in cross-references between enactments. This leads to a potential impact on the safety of prosecutions and the enforceability of post-conviction obligations, for example, the sex offenders register. When considering the approach to any new legislation that will amend the provisions for criminal offences, it is vital to ensure that we maintain the legislative coherence necessary for the offences to simultaneously remain fully enforceable, sufficiently fair to victims of crime and fully in line with the requirements of the Constitution.

The underlying aim behind the Bill is clearly worthwhile. The language we use in legislation affects our perceptions of the impact of offences on victims and influences how we respond. The Government legislation will replace the outdated language in the 1998 Act so that it reflects the true nature of the harm done to victims by offenders who make, possess or distribute child sexual abuse material. The provision for the current wording to be construed as “child sexual abuse material” will ensure that it is called out for what it is and for the harm it causes in legal documents and in court proceedings.

I am, therefore, satisfied that the approach being adopted in the Government legislation is the most appropriate way to bring the language in legislation for child sexual abuse material into line with best practice. Having said that, I commend the Senators on introducing the Bill in 2022 and keeping the issue live since then. This Bill initiated a debate on a legislative change that was very much needed and the debates that took place in this House around it have led to the introduction of the current Government proposal. I assure the Senators that their hard work on this Bill is acknowledged and duly appreciated.