Deborah O'Neill (NSW, Australian Labor Party, Shadow Assistant Minister for Innovation) Share this | Hansard source

Labor is deeply committed to keeping Australians safe online and, therefore, supports the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017, which does introduce a civil penalty regime to combat the non-consensual sharing of intimate images. Whilst Labor does not think the bill goes far enough, we support it as a step in the right direction. It's essential the Australian parliament send a very clear message to the community that the sharing of, or threatening to share, intimate images without consent is absolutely not acceptable. Labor supports the regime because it provides a mechanism by which victims may seek affordable redress, including advice, support and information, and because it should deter perpetrators from sharing intimate images.

Article 20(2) of the International Covenant on Civil and Political Rights requires Australia to take measures to protect persons from exploitation, violence and abuse, and prohibiting the non-consensual sharing of intimate images under a civil penalties regime goes some way to doing so. I note the submission of the Australian Information Commissioner to the department's consultation on this bill, which states

The non-consensual sharing of these images is a serious invasion of privacy, which has the potential to cause severe harm, distress and humiliation to the victim. Further, the harm that can be caused through the sharing of such images is exacerbated by rapidly increasing technological capacity for capturing images and making recordings, and the ability to distribute digital material on a vast scale.

According to a research report published in May 2017 by RMIT University, one in five Australians, one in two Australians with a disability and one in two Australian Indigenous peoples have experienced the non-consensual sharing of intimate images. This research found that the psychological impact on victims can be significant. And negative implications, whether perceived or actual, can affect their reputation, family, employment, social relationships and even personal safety.

While the non-consensual sharing of intimate images can occur as a result of the ex-partner of a victim distributing images of a victim for the purpose of seeking revenge, it can also involve acquaintances or even complete strangers distributing the images. The practice is generally intended to cause harm, distress, humiliation and embarrassment, whether through the actual sharing and distribution of intimate images or the threat to share, often in an attempt to control, blackmail, coerce or punish a victim—commonly referred to as 'sex-tortion'. Other motives might include sexual gratification, fun, social notoriety and/or financial gain.

Labor understands how important it is to have a strong legal framework in place to strengthen the eSafety Commissioner's ability to resolve matters and to support the introduction of a graduated suite of redress mechanisms. Labor acknowledges that the Office of the eSafety Commissioner will seek to use established relationships with social media service providers and content hosts to facilitate the taking down of images, and thus a removal notice or other enforcement action may not be required in every case. In particular, we recognise the value of an accessible system that enables victims to lodge a complaint directly to the commissioner, where an intimate image has been posted or, indeed, someone is threatening to post without consent.

While Labor supports this bill, we note that it doesn't go far enough to address the seriousness of image based abuse. In October 2015 Labor introduced a private member's bill that would make the non-consensual sharing of intimate images a crime. Over two years later, the Turnbull government continues to delay criminalising the non-consensual sharing of these private images. In April 2016 the COAG Advisory Panel on Reducing Violence against Women and their Children released a report recommending:

To clarify the serious and criminal nature of the distribution of intimate material without consent, legislation should be developed that includes strong penalties for adults who do so.

Labor went to the 2016 federal election promising Commonwealth legislation to criminalise revenge porn, as it was referred to then, within the first 100 days of being elected. In October 2016 Labor reintroduced its private member's bill in the current parliament. However, it was removed from the Notice Paper on 23 May 2017, because the government refused to call it on for debate for eight consecutive sitting Mondays. In June 2017, the shadow minister for communications moved a second reading amendment in the House of Representatives, calling on the Turnbull government to criminalise sharing of intimate images without consent, but the motion was defeated. A similar motion was subsequently agreed to in the Senate, yet the government continued to ignore Labor's clear and longstanding intent that this egregious behaviour be criminalised. The Turnbull government has been dragging its feet and has taken far too long to address this issue of image based abuse. The bill comes in the fifth year of the Liberal government and over two years after Labor's first proposed, stronger measures.

In consultation that the government ran on the civil penalties regime last year, there was a missed opportunity to explore the criminalisation of the sharing of intimate images without consent. Protecting Australians from this type of abuse simply has not been a priority for the Turnbull government. Labor calls on the government to join Labor to criminalise the non-consensual sharing of intimate images. The absence of a criminal offence for image based abuse sends a message to rogue operators, victims and police alike that sharing intimate images without consent is not a crime. The government asserts that its approach, a civil penalties regime at the Commonwealth level and a patchwork of criminal penalties at state and territory level, gives victims a choice. However, by failing to enact criminal penalties, the Commonwealth is, in fact, limiting choice by limiting the range of simple and accessible avenues available to victims. While not all victims of image based abuse will want to pursue criminal proceedings, and may prefer to work with the eSafety Commissioner to remove these images, a civil penalty regime cannot and does not exist in a vacuum. Without a clear Commonwealth offence for the non-consensual sharing of intimate images, a civil penalty regime may in fact incentivise police to refer cases to the eSafety Commissioner instead of prosecuting. The government has justified its failure to introduce a specific Commonwealth offence for the non-consensual sharing of intimate images on the basis that there is an existing offence under 474.17 of the Criminal Code for misuse of telecommunication services to menace, harass or cause offence. However, the given the breadth of cases prosecuted under section 474.17 by the Commonwealth Director of Public Prosecutions, it is unclear how many of the charges referred to by the AFP are specifically for this type of image based abuse, as opposed to a broader range of conduct that menaces, harasses or causes offence.

Shortly after the introduction of Labor's private member's bill in 2015, the Senate Legal and Constitutional Affairs References Committee established an inquiry into this issue. The Commonwealth Director of Public Prosecutions expressed concerns during the Senate inquiry that there are limitations on existing Commonwealth laws to adequately deal with revenge porn conduct. The DPP's submission to the inquiry acknowledged that existing Commonwealth laws capture only part of revenge porn conduct. The submission said:

… there are limitations on existing Commonwealth laws to adequately deal with 'revenge porn' conduct.

At a Senate hearing, the AFP said:

… uniformity in legislation across Australia would be most helpful for police—

to be able to investigate and charge perpetrators.

While the explanatory memorandum to the bill quotes research from a May 2017 RMIT research report, it fails to mention another key finding from that report, being that four in five Australians agree it should be a crime to share sexual or nude images without permission. A majority of Australians, 80 per cent, agreed with the statement, 'It should be a crime for someone to share a nude or sexual image of another person without that person's permission.' And there is broad agreement within the Australian community as to the seriousness of this issue regardless of whether someone has experienced it personally.

The explanatory memorandum to this bill goes on to acknowledge the seriousness of image based abuse. The EM says:

The non-consensual posting of an intimate image is a serious breach of a person's right to privacy. It involves the sharing of a personal and intimate image with a person or people with whom it was not intended to be shared. Not only is this a fundamental breach of trust by the person sharing the image, it often has long lasting detrimental consequences for the person depicted in the image.

Further, the EM states:

The posting of an intimate image without consent is also an attack on a person's reputation. Not only does it cause harm and distress for the victim, it can also have broader impacts for the victim's reputation. It can have far reaching consequences for the victim's personal relationships and friendships, and may also impact a victim's employment or other prospects which are contingent on their reputation.

Finally, the EM states:

The Australian public recognise the abhorrence of this practice and the significant harm it causes victims, and expect an appropriate regime to be enacted to prevent and minimise harm to victims or potential victims.

Labor believes that the significance of this harm warrants criminal penalties, plain and simple. So, for these reasons, I move the second reading amendment as circulated in my name and in these terms:

At the end of the motion, add:

", but the Senate:

  (a) notes key research findings from RMIT University that 1 in 5 Australians have experienced image-based abuse and 4 in 5 Australians agree it should be a crime to share sexual or nude images without permission;

  (b) notes that in Australia there is a piecemeal legislative approach to image-based abuse, with no nationally consistent criminal laws, and that the harms associated with image based abuse warrant it being specifically classified as a criminal offence;

  (c) notes that the Council of Australian Governments recommended that to clarify the serious and criminal nature of the distribution of intimate material without consent, legislation should be developed that includes strong penalties for adults who do so;

  (d) notes that this Bill does not criminalise the sharing of intimate images without consent; and

  (e) with the exception of depictions of persons without attire of religious or cultural significance, calls on the Government to criminalise the sharing of intimate images without consent."

Along with the government, Labor acknowledges and appreciates that the more prominent social media service providers and content hosts are working very hard to develop innovative technological measures or have already put in place robust processes that are intended to assist victims whose images have been shared without consent. Labor encourage these social media providers and content hosts to continue this good work, and we note that the bill will not prevent victims from approaching these services in the first instance, rather than the Office of the eSafety Commissioner, if they wish to do so. Labor recognises the strong partnerships that social media services and content hosts have established with the commissioner and encourages their continuance, as these relationships will continue to be pivotal in protecting Australians against the non-consensual sharing of intimate images.

Against this backdrop, Labor notes some of the key concerns of DIGI, as noted in its submissions to the department's consultation on the discussion paper on the non-consensual sharing of intimate images. These concerns include, firstly, that the bill duplicates existing industry efforts to remove image based abuse and may not represent the most targeted or effective use of taxpayer resources and may even disincentivise industry innovation in addressing image based abuse. The bill does not require victims to first exhaust company complaint channels, for example. Secondly, the bill may not improve compliance around the removal of image based abuse given that major digital platforms already operate efficient take-down policies, some of which see the removal of offending content faster than the 24-hour time frame stipulated in the bill, and given that the eSafety Commissioner is likely to continue to encounter difficulties in compelling overseas sites and rouge operators to remove images with only a civic regime in place. I think that is a very important point.

In view of these concerns, Labor believes that within three years of its commencement the minister should cause to be conducted a review of the civil penalty regime for the non-consensual sharing of intimate images, along with the preparation of a report and the tabling of a report in each house of parliament. While the Enhancing Online Safety Act 2015 already includes a review clause at section 107, this review is due to commence in the very near future. If conducted in a timely fashion, that review will assess the cyberbullying regime that first commenced in 2015, but it will, sadly, be of limited efficacy given that the new regime for image based abuse won't have been in operation for very long. Labor thinks there should be further meaningful review of any new civil penalties regime once it has been in operation for a substantial period of time.

In conclusion, Labor supports this bill as a step in the right direction but stands firm on its clear and longstanding calls for relevant criminal provisions. There's nothing out of the ordinary about having both civil and criminal provisions enacted. I reiterate Labor's support for the Senate inquiry recommendation, which was that the Commonwealth government legislate, to the extent of its constitutional power and in conjunction with state and territory legislation, offences for recording, sharing and threatening to take and/or share intimate images without consent. In closing, I reiterate the comments of the opposition leader in his November 2016 White Ribbon Day speech, and those were:

So called revenge porn should be a crime across Australia but it is not.

Criminalisation of so called revenge porn should be a Federal law, not just left to a patchwork of state laws, consistent with the Commonwealth DPPs recommendation.