Paul Fletcher (Bradfield, Liberal Party, Minister for Urban Infrastructure and Cities) Share this | Link to this | Hansard source

I present a supplementary explanatory memorandum to the bill and move government amendment (1) on sheet LC173:

(1) Schedule 2, page 28 (line 1) to page 35 (line 24), omit the Schedule, substitute:

Schedule 2—Amendment of the Criminal Code Act 1995

Criminal Code Act 1995

1 Section 473 .1 of the Criminal Code

Insert:

private sexual material means:

(a) material that:

(i) depicts a person who is, or appears to be, 18 years of age or older and who is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); and

(ii) does so in circumstances that reasonable persons would regard as giving rise to an expectation of privacy; or

(b) material the dominant characteristic of which is the depiction of:

(i) a sexual organ or the anal region of a person who is, or appears to be, 18 years of age or older; or

(ii) the breasts of a female person who is, or appears to be, 18 years of age or older;

where the depiction is in circumstances that reasonable persons would regard as giving rise to an expectation of privacy.

Note: For material that relates to a person who is, or appears to be, under 18 years of age, see:

(a) the definition of child pornography material; and

(b) the child pornography offences in Subdivision D.

subject of private sexual material means:

(a) if the material is covered by paragraph (a) of the definition of private sexual materialthe person first mentioned in that paragraph; or

(b) if the material is covered by paragraph (b) of the definition of private sexual materialthe person mentioned in whichever of subparagraph (b) (i) or (ii) of that definition is applicable.

2 Section 473 .4 of the Criminal Code

Before "The matters", insert "(1)".

3 At the end of section 473 .4 of the Criminal Code

Add:

(2) If:

(a) a particular use of a carriage service involves the transmission, making available, publication, distribution, advertisement or promotion of material; and

(b) the material is private sexual material;

then, in deciding for the purposes of this Part whether reasonable persons would regard the use of the carriage service as being, in all the circumstances, offensive, regard must be had to whether the subject, or each of the subjects, of the private sexual material gave consent to the transmission, making available, publication, distribution, advertisement or promotion of the material.

(3) Subsection (2) does not limit subsection (1).

Definition

(4) In this section:

consent means free and voluntary agreement.

4 After section 474 .17 of the Criminal Code

Insert:

474.17A Aggravated offences involving private sexual material—using a carriage service to menace, harass or cause offence

Standard aggravated offence

(1) A person commits an offence against this subsection if:

(a) the person commits an offence (the underlying offence) against subsection 474.17(1); and

(b) the commission of the underlying offence involves the transmission, making available, publication, distribution, advertisement or promotion of material; and

(c) the material is private sexual material.

Penalty: Imprisonment for 5 years.

(2) There is no fault element for the physical element described in paragraph (1) (a) other than the fault elements (however described), if any, for the underlying offence.

(3) To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (1) (a) if the person has a defence to the underlying offence.

Special aggravated offence

(4) A person commits an offence against this subsection if:

(a) the person commits an offence (the underlying offence) against subsection 474.17(1); and

(b) the commission of the underlying offence involves the transmission, making available, publication, distribution, advertisement or promotion of material; and

(c) the material is private sexual material; and

(d) before the commission of the underlying offence, 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to contraventions of subsection 44B(1) of the Enhancing Online Safety Act 2015.

Penalty: Imprisonment for 7 years.

(5) There is no fault element for the physical element described in paragraph (4) (a) other than the fault elements (however described), if any, for the underlying offence.

(6) To avoid doubt, a person does not commit the underlying offence for the purposes of paragraph (4) (a) if the person has a defence to the underlying offence.

(7) Absolute liability applies to paragraph (4) (d).

Note: For absolute liability, see section 6.2.

Double jeopardy etc.

(8) A person who has been convicted or acquitted of an offence (the aggravated offence) against subsection (1) may not be convicted of an offence against subsection 474.17(1) or subsection (4) of this section in relation to the conduct that constituted the aggravated offence.

(9) Subsection (8) does not prevent an alternative verdict under section 474.17B.

(10) A person who has been convicted or acquitted of an offence (the aggravated offence) against subsection (4) may not be convicted of an offence against subsection 474.17(1) or subsection (1) of this section in relation to the conduct that constituted the aggravated offence.

(11) Subsection (10) does not prevent an alternative verdict under section 474.17B.

(12) A person who has been convicted or acquitted of an offence (the underlying offence) against subsection 474.17(1) may not be convicted of an offence against subsection (1) or (4) of this section in relation to the conduct that constituted the underlying offence.

When conviction must be set aside

(13) If:

(a) a person has been convicted by a court of an offence against subsection (4) on the basis that 3 or more civil penalty orders were made against the person under the Regulatory Powers (Standard Provisions) Act 2014 in relation to contraventions of subsection 44B(1) of the Enhancing Online Safety Act 2015; and

(b) one or more of those civil penalty orders are set aside or reversed on appeal; and

(c) if the civil penalty orders covered by paragraph (b) had never been made, the person could not have been convicted of the offence; and

(d) the person applies to the court for the conviction to be set aside;

the court must set aside the conviction.

(14) If:

(a) a person has been convicted by a court of an offence (the aggravated offence) against subsection (4); and

(b) the court sets aside the conviction under subsection (13);

the setting aside of the conviction does not prevent proceedings from being instituted against the person for an offence against subsection 474.17(1) or subsection (1) of this section in relation to the conduct that constituted the aggravated offence.

474.17B Alternative verdict if aggravated offence not proven

(1) If, on a trial for an offence (the aggravated offence) against subsection 474.17A(1), the trier of fact:

(a) is not satisfied that the defendant is guilty of the aggravated offence; but

(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 474.17(1);

it may find the defendant not guilty of the aggravated offence but guilty of the offence against subsection 474.17(1), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

(2) If, on a trial for an offence (the aggravated offence) against subsection 474.17A(4), the trier of fact:

(a) is not satisfied that the defendant is guilty of the aggravated offence; but

(b) is satisfied beyond reasonable doubt that the defendant is guilty of an offence against subsection 474.17(1) or subsection 474.17A(1);

it may find the defendant not guilty of the aggravated offence but guilty of the offence against subsection 474.17(1) or subsection 474.17A(1), so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

This government is deeply committed to providing a safer online environment for all Australians. The government has a duty to ensure that, with ever evolving technology and expanding communications methods, the Commonwealth laws provide a deterrent and sound basis for prosecuting offenders who would do Australians harm.

Combating the non-consensual sharing of intimate images requires a national approach across education, victim support, civil avenues and law enforcement agencies. To that end, the government introduced civil penalties for intimate image abuse in the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill. This bill will create a civil penalty regime that will give victims a timely, accessible and effective means of redress to remove intimate images shared maliciously through a carriage service.

This new civil prohibition regime will address the primary concern of victims, which is a legislative system that facilitates the rapid removal of images without having to rely on the criminal justice system.

The government has now moved this amendment to the bill to introduce new offences that will create higher criminal penalties for the online distribution of intimate images, complementing the civil prohibition and penalty regime proposed in the bill. This amendment sends a clear message: this behaviour will not be tolerated. Where private sexual material is criminally distributed online, significantly higher penalties will apply.

This government has a demonstrated history of protecting Australians online through enacting legislation creating the Office of the eSafety Commissioner, who champions the safety of all Australians online. This bill and this amendment represent a further step to protecting Australians online. It is important that the criminal justice system provides appropriate redress for more serious forms of image based abuse, such as perpetrators continuing to share intimate images after multiple civil penalty orders have been made. Repeated image based abuse is a significantly more serious and malicious form of online harassment that deeply affects a person's right to privacy and self-integrity, warranting a significantly higher criminal penalty.

The amendment creates two new aggravated offences for the Commonwealth offence of using a carriage service to menace, harass or cause offence, which has been successfully used to prosecute image based abuse. The aggravated offences will apply higher penalties in two circumstances—firstly, where the use of the carriage service involves dealings in private sexual material and, secondly, where the use of the carriage service involves dealings in private sexual material and three or more civil penalty orders have been made under the civil penalty regime established by the bill. The current offence for using a carriage service to menace, harass or cause offence has a maximum penalty of three years imprisonment. This amendment will increase the maximum penalty to five years imprisonment for dealings in private sexual material and seven years imprisonment for repeat offenders of the civil penalty regime. The amendment also inserts a definition of 'private sexual material' and ensures that consent is taken into account when considering whether the use of a carriage service to distribute private sexual material is offensive.

This bill and the amendment I have moved will ensure Australians have greater protections from online image based abuse and will serve as a significant deterrent to those who would exploit a person's trust and privacy in such a malicious fashion.

Question agreed to.

Bill, as amended, agreed to.