Wednesday, 14 February 2018
Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017; In Committee
Madam Chair, an amendment has been moved, has it not?
The CHAIR: We did put and pass some amendments. Opposition amendment (1) was passed just before 7.20 yesterday evening. It's up to you; I'm in your hands.
I'm happy to move mine. It's just that, on the running order, the Greens amendments are first.
The CHAIR: That's fine, Senator Leyonhjelm. You've got the call.
by leave—I move amendments (1) and (2) on sheet 8368 together:
(1) Schedule 1, item 4, page 4 (after line 23), after the definition of on-demand program service, insert:
outdoor public place means an outdoor place to which the public, or a section of the public, ordinarily has access, whether or not by payment or by invitation (including, for example, the open air areas of an outdoor concert or sportsground).
(2) Schedule 1, item 18, page 8 (after line 23), after subsection 9B(6), insert:
(7) For the purposes of this section, an intimate image does not include a drawing, painting or sketch (whether still or moving).
(8) For the purposes of subsections (3) and (4), an intimate image does not include images of a person in an outdoor public place.
2 Today we're debating the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017. It's a bill supposed to deal with revenge porn, but it goes beyond that in ways that could slap $100,000 fines on people who are not posting revenge porn, including journalists.
My amendments exclude drawings, paintings and sketches from the definition of 'image'. I note that, on page 23, the explanatory memorandum says that the definition of an image includes a drawing. My amendment seeks to exclude these drawings, paintings and sketches so that a $100,000 fine couldn't be slapped on someone for merely posting a drawing, painting or sketch of someone. If I posted a picture or, indeed, a drawing of President Donald Trump urinating in Central Park, I shouldn't face a $100,000 fine.
My amendments also exclude certain images taken in outdoor public places from the definition of 'intimate image'. As a result, a $100,000 fine couldn't be slapped on someone for merely posting a picture of someone doing a typically private act in an outdoor public place. For example, if I posted a photo of President Donald Trump urinating in Central Park where no rude bits are showing, I shouldn't face a $100,000 fine.
There is a further result of my amendment regarding outdoor public places. The bill allows a $100,000 fine to be slapped on someone for posting a picture of someone without religious or cultural attire when that person consistently wears religious attire in public. This is reasonable if the picture was taken when the person was on private property or in a public toilet, but it's not reasonable if the picture was taken of the person in an outdoor public place. My amendment would ensure a $100,000 fine couldn't be slapped on someone for posting a picture of a person out of their usual religious or cultural attire if the person was in an outdoor public place at the time.
For example, a picture of Cardinal George Pell without his collar would, potentially, come under this bill. A picture of a nun who wasn't wearing her habit in public would, potentially, offend against this bill. A woman who normally wears a burqa but wasn't wearing a burqa in public and had her picture taken would, potentially, offend against this bill, unless my amendment succeeds.
I acknowledge that the bill already attempts to limit the capacity to impose fines by saying they only apply in circumstances in which an ordinary reasonable person could reasonably expect to be afforded privacy, but this is vague. My additional limitation regarding outdoor public places would add some much-needed clarity. I commend my amendments to the Senate.