Senate debates

Thursday, 14 November 2013


Cyber-Safety Committee

6:10 pm

Photo of Catryna BilykCatryna Bilyk (Tasmania, Australian Labor Party) Share this | | Hansard source

I move:

That the Senate take note of the report.

I would like to take a few minutes to talk about the Senate Select Committee on Cyber Safety's report entitled Options for addressing the issue of sexting by minors. The Australian Communications and Media Authority defines 'sexting' as 'the sending of sexual messages, photos or videos online or using a mobile phone'. As the chair of the previous Joint Select Committee on Cyber-Safety and of the former Senate Select Committee on Cyber Safety I am extremely aware that sexting is an issue of extreme concern for Australian parents. This concern is increasing as the prevalence of smart phones and web connected devices grows. We need to note also that children are becoming younger when they first have access to or even ownership of these devices.

In its first report High-wire act the previous Joint Select Committee on Cyber-Safety made recommendations relating to cyberbullying and cybersafety generally, including enforcement and educational strategies; however, it made no recommendations specifically in relation to sexting and the then Labor government felt that the issue deserved further investigation by the committee. Although sexting can equally occur between two adults, the terms of reference for this inquiry focused on the issue of sexting by minors. Sexting by minors raises some specific concerns that do not apply in the context of peer to peer sexting between adults. This is because sexual content depicting minors can often constitute child pornography under existing Commonwealth, state and territory laws, leading to potentially severe consequences for minors involved in the creation, possession or communication of such content. The committee found that sexting can occur in a variety of contexts and through a variety of media, ranging from relatively benign consensual behaviours to situations in which sexting is coerced or exploitative.

The Australian Psychological Society gave evidence to the committee that there are a number of dimensions to different behaviours broadly categorised as sexting which need to be considered when examining a specific behaviour. The dimensions are: the content of the communication, including whether the communication includes text, images or video, and the degree of sexualisation present in the content; the use of the communication, including the number of people depicted in the content and the number of people with whom the content is shared; the role of participants, including the producer, the sender or senders and receiver or receivers of the material; the intent of the communication, whether benign or harmful, and whether it was sent with or without the consent of the subject; and the age of the participants. In addition to legal concerns relating to child pornography offences, ACMA noted that young people may be subject to heightened levels of peer pressure to create or forward sexual images and that the impact of the subject's loss of control over private images may be more serious and lasting for young people than adults.

Research shows that sexting is reasonably prevalent. In a survey conducted in 2012 by ACMA 13 per cent of respondents aged 16 to 17 years reported that either they or someone within their group of friends had sent and 18 per cent had viewed sexually suggestive nude or nearly nude photos or videos of themselves to someone else. BoysTown highlighted to the committee some of the impacts of sexting and said:

Young people can find themselves the victims of humiliation, bullying, harassment, threat, punishment (from school and/or parents) and criminalisation. The flow on from these events can also be severe, impacting young people’s wellbeing, health, school, employment, family and peer relationships.

The permanence of digital content is a pressing concern in relation to sexting, as it can be almost impossible to retrieve and destroy that content once it is shared. This is compounded by the ability to be widely circulated in a very short period of time. The Law Council noted that there are currently no legislative provisions at the Commonwealth, state and territory levels that specifically deal with an offence of sexting; however, several criminal and civil laws may apply to sexting behaviours depending on the circumstances. The committee notes that these laws were designed to deal with activities associated with child pornography.

Commonwealth offences in relation to child pornography are found in the Criminal Code Act 1995. The practice of sexting may be captured by offences contained in 474D of the Criminal Code, which criminalise a range of conduct relating to the use of a carriage service, such as the internet or mobile telephone, for child pornography. The Attorney-General's Department stated that while these offences may be applicable to some sexting behaviours between minors, they are rarely used in such cases.

Each state and territory has separate criminal legislation that may be used to regulate sexting, with the Victorian parliament report noting that 'since 2005, no two jurisdictions in Australia have had the same child pornography laws'. As a consequence, there are significant differences in relation to the definitions, interpretations, elements of the offences and age of the relevant child contained in each jurisdiction's legislation.

In almost all Australian jurisdictions, individuals over 18 years of age who are convicted of specified offences, including child pornography offences, must automatically be registered on the relevant sex offender registry, while the registration of offenders who are under 18 years of age is generally at the discretion of the courts. Registration on a sex offenders' registry requires the individual to undertake mandatory reporting for a period of up to eight years depending on the jurisdiction, as well as limiting the individual's ability to take up employment in areas involving young people.

Various stakeholders expressed the view that the scope of the existing Commonwealth child pornography offences needs to be altered in order to exclude non-harmful sexting behaviour between minors, so that young people do not unwittingly commit a serious and punishable offence. Several submitters argued that sexting behaviour should not be treated in the same way as the creation or distribution of child pornography. For example, the Australian University Cyberbullying Research Alliance noted that minors can currently be charged under child pornography offences which contain little recognition by the law of the 'inherent differences between their image sharing, and either those of paedophiles sharing and distributing images or adults sharing intimate images of partners'.

They also argued:

… the laws which we currently have are being outstripped at a rapid rate. They have been written for a previous era, by adults who have never experienced being adolescents surrounded by this avalanche of technology which is changing the ways they think, operate and relate.

Youth Off The Streets argued it is that absurd that two consenting teens can text each other and end up on the registered sex offenders list for the rest of their lives as a result of conviction under child pornography offences. A representative from the Department of Broadband, Communications and the Digital Economy informed the committee that the potential liability of victims of non-consensual sexting under child pornography offences can act as a disincentive to reporting harmful incidents to the relevant authorities. They said:

… if they know that they might actually be liable to be prosecuted themselves if they want to take action in relation to the non-consensual on-sending of their images, that is a disincentive.

The evidence provided to the committee during this inquiry indicates that sexting has become a regular activity for many young people aged less than 18 years. The emergence of new technologies has facilitated the creation and transmission of sexual content through electronic media, and much of this activity takes place between consenting young people and they believe it to be relatively benign. However, in some instances, sexting activities are coercive, exploitative or undertaken with malicious intent. It was argued by many submitters that the current legislative framework requires review to ensure that consensual sexting is not captured by those laws targeting child pornography.

Given the short time frame it had to undertake this inquiry, the committee was unable to fully explore all the issues raised in the evidence. In particular, the committee considers that the suggestions made in relation to changes to Commonwealth laws, including amendments to the child pornography laws and the introduction of a new offence for non-consensual sexting, require further in-depth consideration. In addition, some submitters called for the creation of a national digital communications tribunal.

The committee considers that further work is necessary to determine whether such a body could effectively provide access to remedies other than those that are already available under the current regulatory framework. The committee therefore considered that an inquiry into options for addressing the issue of sexting by minors be re-referred by the Senate to this 44th Parliament in order to investigate and deliberate further on the matters raised in evidence, and I look forward to continuing working on the Joint Select Committee on Cyber-Safety and hope that its work is taken up.

In closing, I would like to thank the secretariat for all their hard work on this inquiry and report. I would also like to thank my parliamentary colleagues from both sides of the parliament who were on this committee. It worked really well. We managed to reach consensus on a number of issues, and I think the agreement to recommend that further work be undertaken was a really wonderful outcome.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.