Senate debates

Tuesday, 13 February 2018


Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017; Second Reading

6:27 pm

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

Before my speech was interrupted, I was saying that my Labor colleagues in the House of Representatives Terri Butler and Tim Watts introduced a private member's bill to create new offences in relation to the use of a carriage service for sharing private sexual material. Sadly, this bill didn't get any further than Mr Watts introducing it and delivering his second reading speech before it lapsed because of the proroguing of parliament. But, despite Labor's private member's bill lapsing, we have continued to pursue this issue.

Labor went to the last federal election promising Commonwealth legislation to criminalise non-consensual sharing of intimate images within the first 100 days of being elected. In October 2016, we reintroduced our private member's bill. However, it was removed from the Notice Paper in May last year because the government continually refused to bring it on for debate. While the national conversation about the need to criminalise this behaviour has gone on for years, the Abbott-Turnbull government has been dragging its feet. This bill comes two years after Labor introduced its private member's bill—two years!—and we've been calling for stronger measures by the Commonwealth to tackle this problem for some time.

I'm in no doubt that my disappointment at the delay in the government's response is shared by the victims of this horrendous behaviour. The non-consensual sharing of intimate images is a gross breach of privacy. What makes this crime particularly horrific is that the consequences for victims can potentially last a lifetime, because once an image has been shared online it becomes almost impossible to retrieve and destroy every copy of that image. Even if the shared content is successfully erased, the victim is left with the fear that the image may still be out there somewhere. And destroying the image does not erase the shame and the humiliation that the victim has suffered.

The Australian Information Commissioner summed up well the impact of this behaviour in a submission to the Department of Communications' consultation on this bill. The commissioner said: '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 victims. Further, the harm that can be caused through the sharing of such images is exacerbated by the rapidly increasing technological capacity for capturing images and making recordings and the ability to distribute digital material on a vast scale.' This behaviour needs to be criminalised because it is a form of abuse. It is an increasingly common manifestation of family violence and it is used by perpetrators to use the threat of humiliation to exercise power and control over their victims.

A recent study published by RMIT in May last year found that a high level of psychological distress was experienced by victims of image based abuse. For many victims this was accompanied by a moderate to severe level of depression and/or anxiety. Twenty eight per cent of victims reported that they feared for their safety as a result of image based abuse. While the number of male and female victims was roughly the same, women were more likely than men to report being fearful for their safety; and those fears were greater when there was a threat to distribute an image, rather than the actual distribution of the image. Women were more likely than men to experience image based abuse from a male perpetrator; and the study suggests that, for women victims, it is more often associated with stalking or domestic violence victimisation.

Another reason for the urgent need to address this behaviour is that it's becoming more and more widespread. In his second reading speech to the House, Mr Watts pointed out that one in 10 Australians reported that someone has posted online or sent to others a nude or semi-nude image of them without their consent. The RMIT study to which I referred earlier, with is more recent, found that one in five Australians has experienced the non-consensual sharing of intimate images. With the problem so widespread and having such a profound impact on its victims there is a compelling case for a strong response. And, as if it isn't bad enough that the Turnbull government has dragged its feet for so long, the bill before us now does not go nearly far enough in addressing this problem.

It is important that the parliament sends a strong message to the community that sharing intimate images without consent is not acceptable. But the message needs to be a lot stronger than just a civil penalty regime. The strength of a criminal offence is not just in the severity of the penalties or the fact that it is the police that take action against the offender; it is also in the statement it makes to the public about the seriousness of the behaviour.

The Top End Women's Legal Service in Darwin, which made a submission to the Senate revenge porn inquiry, pointed out that 'a criminal offence also serves a symbolic and educative function, and a tailored offence would clearly highlight and reinforce the wrongfulness of this behaviour. The government's refusal to make this behaviour a criminal offence is out of step with the Australian community.' The RMIT study I referred to earlier also found that four in five Australians agreed that it should be a crime to share sexual or nude pictures without permission. This attitude is fairly consistent throughout the community, regardless of whether the respondents were victims or not.

This is a gap in the law that has to be addressed. It is currently a criminal offence in Victoria and South Australia to share an intimate or invasive image without consent. It is also an offence in both of those states to threaten the distribution of such an image. Without a Commonwealth offence, this leaves a gap in the law across the remainder of the states and territories. It is just not good enough to leave the legislative response to the states and territories. Like most things that happen in the online environment, it is more appropriately dealt with through the Commonwealth Criminal Code. Not only would a Commonwealth law be a simpler way to ensure national consistency in how these offences are dealt with; it would also make it clearer how these crimes are to be dealt with when they happen across state borders.

The government argues that there is no need to introduce a new criminal offence, because section 474.17 of the Commonwealth Criminal Code makes it an offence to use a carriage service to menace, harass or cause offence. As the RMIT study points out, many legal experts in their research said this offence is broad in scope and is not enforced well when it comes to image based offences. A civil penalty could actually make the situation worse as it may encourage police to refer cases to the eSafety Commissioner instead of prosecuting.

Labor has asked questions in Senate estimates about how many charges have been proven against defendants for non-consensual sharing of intimate images, and the response from the Australian Federal Police was that, for prosecutions brought about by the Commonwealth Director of Public Prosecutions, 844 charges have been proven against 410 defendants between the introduction of section 474.17 in 2004 and 5 December 2016. But it's unclear how many of these prosecutions were for image based offences, and without this information we have no evidence that a significant number or, indeed, any instances of image based abuse are resulting in successful prosecutions by the Commonwealth.

The application of this section to image based abuse was also explored in the revenge porn Senate inquiry. The Australian Federal Police told the inquiry that this section had not been used in relation to non-consensual sharing of intimate images. The Commonwealth Director of Public Prosecutions also gave evidence to the inquiry and raised questions as to how effectively the section could be applied in the context of non-consensual sharing of intimate images. There are a number of aspects of non-consensual sharing of intimate images that were not contemplated in the legislation, such as whether the victim 'held and maintained an expectation of privacy in relation to the image'. The CDPP also pointed out that the section would not apply to image based abuse unless it takes place online, so it would not address behaviour such as sharing hard copies of images. Even if since the inquiry section 474.17 has been tested for image based abuse, considering that one in five Australians report experiencing such abuse, those prosecutions would be a drop in the ocean.

The need for a specific Commonwealth offence was also explored by the RMIT study, which consulted legal experts. The study's report observed:

Overall, in Australia there is a piecemeal legislative approach to image-based abuse, with no nationally consistent criminal laws, the majority of jurisdictions do not have specific offences, and the civil law is out of reach for most Australians without the financial resources to seek justice. The harms associated with image-based abuse further warrant it being specifically classified as a federal telecommunications criminal offence.

The case for a Commonwealth criminal offence is obviously compelling. A civil penalty simply does not go far enough in recognising the seriousness of image based abuse. Introducing a criminal offence sends a strong signal to the perpetrators that not only is the behaviour they're engaging in abuse and unacceptable but it is a crime. While we're disappointed that this bill does not go far enough, Labor will, however, support this bill because it is at least a step in the right direction, and it's better than doing nothing to prevent the hurt and distress that image based abuse causes to victims.

While the bill fails to make non-consensual sharing of intimate images a criminal offence, it includes a number of other important provisions. One of these is a legally enforceable take-down notice to try to remove images from websites. While a take-down notice is a useful mechanism for non-complying content providers, I acknowledge that social media platforms have worked hard to put in place policies and practices that quickly respond to instances of image based abuse. In January 2013, Labor in government signed an agreement with Facebook, Google, Yahoo and Microsoft to develop robust processes to deal with complaints of cyberbullying and to undertake education and awareness-raising activities. Some of the take-down policies of major social media platforms provide for faster removal of offensive content than the 48 hours stipulated in this bill.

The eSafety Commissioner will of course seek to use established relationships with internet service and social media providers to informally seek the taking down of images, but it helps to have enforcement action as a backup option. It's also important to have a one-stop-shop complaints mechanism administered by the eSafety Commissioner, and this bill complements the online complaints portal pilot that was launched by the commissioner last October.

As I've stated, this bill is a step in the right direction, but the government need to go further. They need to send a much stronger message to the perpetrators of this abuse that society will not tolerate their behaviour. Labor believes, and legal experts and the Australian public agree, that there is a need for a specific Commonwealth criminal offence for the non-consensual sharing of intimate images. I urge the government to revisit the private member's bill put forward by Mr Watts and Ms Butler in the House, and to work with Labor on further strengthening our response to the despicable practice of the sharing of intimate images without consent.

6:40 pm

Photo of Janet RiceJanet Rice (Victoria, Australian Greens) Share this | | Hansard source

I rise to speak to the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017. As noted earlier today by my colleague Senator Jordon Steele-John, the Australian Greens welcome and support this bill because we support action to protect those who experience or may experience the abuse, threats, extortion or other harm caused by the non-consensual sharing of their intimate images or threats to share such images. I'm heartened that the government has listened to the voices in this chamber and across Australia who have been calling for a long time for legislation that deals with non-consensual sharing of images.

While this bill is a welcome step in protecting people from the non-consensual sharing of images, the Greens consider that this bill has been brought on for debate far too quickly. Yes, we need legislation, but it would have been much better for this legislation to have had the opportunity to go through the standard Senate process of a committee inquiry, because then this bill would, I am certain, have been improved from what it is today. We have some amendments that we're going to be moving to this bill that will improve it, but I'm certain that if we'd had the chance to have the scrutiny of a Senate inquiry process we would have ended up with much better legislation. I think it's disappointing the government has brought this bill on before it is ready.

In-depth research conducted by RMIT University found the issue of non-consensual sharing of images affects a wide cross-section of the community. The key findings of the research demonstrate the extent of the problem and why we must address it. One in five Australians have experienced image based abuse. Victims of image based abuse experience high levels of psychological distress. Women and men are equally likely to report being a victim. Perpetrators of image based abuse are most likely to be male and known to the victim. Men and young adults are more likely to voluntarily share a nude or sexual image of themselves. Women are more likely than men to fear for their safety due to image based abuse. Abuse risk is higher for those who share sexual selfies, but they aren't the only victims. One in two Australians with a disability report being a victim of image based abuse. Let that sink in: one in two Australians with a disability. One in two Indigenous Australians report image based abuse and victimisation. Image based abuse and victimisation is higher for lesbian, gay and bisexual Australians. Young people aged 16 to 29 years are also at high risk of image based abuse. Critically, given the impact of this, it is heartening to know that four out of five Australians agree that it should be a crime to share sexual or nude images without permission.

It's worth noting that men make up the majority of perpetrators when it comes to non-consensual sharing of intimate images, and that women are more likely than men to be victimised by an intimate partner or ex-partner. It's in this context that I am talking tonight, as the Greens spokesperson for women. Importantly, the research showed that those most likely to be targeted by non-consensual sharing of their intimate images are those in our community who are likely to be dealing with discrimination, prejudice and injustice, including disabled people, Aboriginal and Torres Strait Islander people, and lesbian, gay and bisexual people.

On top of this the research found that the victims of non-consensual images may have also experienced domestic or family violence, sexual violence, stalking, sexual harassment and other forms of interpersonal violence. The psychological impact of this abuse can be significant, and negative implications can affect victims' reputation, family, employment, social relationships and even personal safety. And, as noted by the chief investigator of the RMIT University research project, Dr Nicola Henry, this isn't just about revenge porn. Images are being used to control, abuse and humiliate people in ways that go well beyond a relationship-gone-sour scenario.

This research, undertaken by RMIT, goes to the heart of why this bill is so important. Statistically, we know that the most dangerous place for a woman is in her home. Women are more likely to be killed by their current or former male partner than by any other cause. And we know from the #MeToo movement and the ongoing campaigns for women's rights that women across the world—on the streets and in their workplaces; young and old—face daily sexual harassment, abuse and violence. And so, in a broader cultural context of disrespect and harassment, the non-consensual sharing of intimate images is a particularly targeted, insidious and damaging form of abuse. Women are more likely to experience this form of abuse at the hands of a partner or ex-partner, and this exemplifies a particularly horrifying version of controlling and humiliating behaviour.

I want to share a case study with you, an example of the harm that can be caused by the non-consensual sharing of intimate images. It is a case of two women in a regional town whose intimate images and videos were posted without consent to a pornographic image board. The victims identified the same man as responsible for disseminating the intimate images. The man had also targeted other women in the town. He had posted their images to the same link, which identified the town and, in some of the cases, the names and the workplaces of the victims. Just imagine being the subject of that harassment.

The civil penalties that this legislation proposes would provide a range of options to deal with a perpetrator's behaviour, including issuing a warning; issuing a removal notice, requiring the perpetrator to remove the images; issuing an infringement; and preventing the further publication or dissemination of images through an enforcement mechanism, such as an undertaking or a court injunction. So the Greens are welcoming action on this important issue that, as the research indicates, affects many people from many demographics. However, as my colleague Senator Steele-John has indicated, we are very concerned about the implications of this proposed civil penalties regime for people who are under 18. For that reason, we're going to be moving an amendment about this issue, for which we are seeking the Senate's consideration of support.

In conclusion, I'm pleased that the government has brought on this legislation. It could be better legislation. It would have benefited from having gone through a thorough Senate inquiry process, but it is legislation that is absolutely worth supporting. I am pleased to be able to join Senator Steele-John in saying that the Greens will be supporting this important legislation.

6:48 pm

Photo of Pauline HansonPauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | | Hansard source

I'm really happy to speak on the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017. This bill has come almost 10 years after my own experience of the degrading, embarrassing and false depiction of me, courtesy of Neil Breen, on the front page of The Sunday Mail and The Sunday Telegraph in March 2009. It was one week—actually it wasn't even a week; it was six days—out from the 2009 Queensland state election in which I was standing as a candidate. I woke up on that Sunday morning. I bought the paper and saw these images of a woman who was partially nude and the claims that they were pictures of me. Of course, I contacted the newspapers and said, 'They are not pictures of me.' I was getting calls in regard to this. Of course my immediate family knew. Even my ex-husband made it quite clear, 'That's not her.' This went on for a week. The newspaper stood by that they were images of me. The dates, the times and the ages did not add up. This was all because it was political. To go through this experience was terribly embarrassing—imagine what the public thought—so I can understand how people feel about their own images.

I remember the last time I was in parliament there was another image put up of me. The image was of me—as the head of another woman being held by the arms by two black men—and I was delivering a baby. I went to the minister with regard to this—this organisation was funded through the ABC—and nothing was done about it. So, yes, it is well and truly overdue for something to be done about this.

I explain with this that, as the old saying goes, sometimes it takes two to tango. I say to anyone out there who thinks that intimate images of themselves are okay to send via text message or email: 'Stop it. Keep it for the bedroom.' People, regardless of your age, it's in what is told to you by your parents and how you feel about yourself: people have to take responsibility for their own actions. Young people who get requests for intimate images of themselves early in relationships should not do it. Relationships don't always last, and the person they are with may very well turn nasty on them. I'm very pleased to say that One Nation are a part of putting a dent in this abhorrent trend of shaming people using online methods and intimate images, but I reiterate: I want every man, woman and young adult to know that they too must play a role in ensuring their private photos are kept private.

There are some amendments that will be moved today. The Xenophon amendment will make this a criminal offence. One Nation will not be supporting that amendment, on the basis that we have a Criminal Code that covers a lot of this. We have to be very careful here. The younger generation—those under 18 years of age—are taking pictures of themselves and their friends. If you make it a criminal offence, this will be a mark against them for the rest of their lives. We know they do some stupid things, but a criminal record affects your visa, job applications, profession and blue card, and travelling overseas. I suggest we don't make this a criminal offence. Another thing: if you don't make it a criminal offence for those who are under age, people who are of adult age will then blame someone who is under age. I just don't feel that we should be making it a criminal offence.

Labor has put up an amendment to review this in three years time. I do support that. I think it should be reviewed. Let's look at the bill as a whole as it is at the moment. I think the civil penalties will go far enough. We can then review it. If it's not working, then we can address it in three years time.

There has been talk in the chamber today of whether it should be an offence to take a photo of anyone wearing a burqa. We have an Australian standard. If they are photographed wearing a burqa, that's not offensive to the Australian people and it should not come into the act. The burqa is not a religious requirement, so I don't believe that should even come into it. We have our standards—what we find offensive and what intimate images should not be shown and put across or texted. I commend the bill. We will be supporting this.

6:54 pm

Photo of Mitch FifieldMitch Fifield (Victoria, Liberal Party, Minister for Communications) Share this | | Hansard source

It doesn't look as though any other colleagues wish to contribute to the second reading debate, so I thank all colleagues for their contributions. As has been canvassed in the contributions of colleagues, Australians are immersing themselves in the online world through social networking sites, online games, smartphones and tablets. We all agree that the internet is a vital tool for education, research, entertainment and social interaction; however, we have witnessed in recent times that the internet can be used for the wrong purposes, which can lead to very tragic consequences.

Creating a safer online world requires broad community involvement from industry, schools, parents, children, support agencies and government. We all play a role in ensuring that Australians can safely and confidently take advantage of the great benefits of the internet and other digital technologies. The government will continue to consult with stakeholders and consider other actions that can be implemented to address online harms. I think all colleagues would concur that, when it comes to the online space and potential misuse, there is no single response; there needs to be a range of responses, which include education, civil and criminal remedies, and government, non-government and community efforts.

The Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017 reflects part of the government's contribution to those efforts: our ongoing commitment to keep Australians safe online, in this case from a very specific abuse—that of the non-consensual sharing of intimate images. This is a significant issue that can have an adverse impact on victims, their families and the community. The psychological impact on victims can be significant and can have very negative implications affecting their reputation, family, employment, social relationships and even personal safety.

The reasons for non-consensual sharing of intimate images are varied. It can often occur as a result of a victim's ex-partner seeking revenge; it can also involve acquaintances or complete strangers distributing the images either maliciously or for other nefarious reasons. Whatever the reasons for sharing intimate images without consent, the practice is intended to cause harm, distress, humiliation and embarrassment, whether through the actual sharing of intimate images or through the threat to share. Often such threats are made in an attempt to control, blackmail, coerce, bully or punish a victim. Other motives might include personal gratification, some sort of strange notoriety or even financial gain. The sharing of images can occur over various electronic services, including email, text, multimedia messaging, social media services, websites including other material of an explicit nature, message boards, forum websites and websites specifically designed to host images shared without consent.

The bill seeks to create a prohibition against non-consensually posting or threatening to post an intimate image on a social media service, a relevant electronic service such as email and text messaging, or a designated internet service, which includes websites and peer-to-peer file-sharing services. The bill establishes a complaints and objections system to be administered by the eSafety Commissioner, where victims or persons authorised on behalf of victims will be able to lodge a complaint directly to the eSafety Commissioner where there is reason to believe that an intimate image has been posted without consent or where a threat has been made to do so. The bill will facilitate the removal of an image where a person who initially consented to an image being shared has subsequently changed their mind and now wishes to have the image removed. People in this situation will be able to lodge an objection notice with the commissioner. The bill will introduce a civil penalty regime to be enforced by the eSafety Commissioner. Penalties of up to $105,000 for individuals and up to $525,000 for corporations can be incurred for a breach of the prohibition or failure to comply with a removal notice or other remedial direction issued by the eSafety Commissioner.

On 16 October 2017, the government welcomed the pilot launch of a new national portal for reporting instances of non-consensual sharing of intimate images. The portal is a world-first for a government-led initiative, developed by the Office of the eSafety Commissioner, and provides immediate and tangible support to victims of image based abuse. The portal gives victims a place to seek assistance and report instances of image based abuse. It provides clear and concise information about the practical steps victims can take to reduce the impact of the abuse. Since the launch of the portal, the eSafety office has received over 115 reports of image based abuse which related to nearly 220 separate URLs and locations where the images were made available. In addition, the eSafety office has received almost 60 queries regarding the non-consensual sharing of intimate images and had over 48,000 total visits to the image abuse portal. Noting these statistics, it is essential that the eSafety Commissioner has the legislative backing to enable quick removal of intimate images shared without consent and to administer a civil penalty regime targeting perpetrators and content hosts who knowingly engage in this behaviour.

The sharing of intimate images without consent is a major concern in the community. This bill sends a clear message to all Australians that the non-consensual sharing of intimate images is unacceptable in our society. The bill has been developed in consultation with many stakeholders, including women's safety organisations, mental health experts, schools and education departments, victims, the eSafety Commissioner and members of the government's Online Safety Consultative Working Group.

I should just take a moment to put this bill in the wider context of the government's efforts in relation to online safety and make mention of the fact that when Mr Fletcher, from the other place, was the Assistant Minister for Communications and Mr Turnbull was the communications minister, they legislated the establishment of what was then called the Office of the Children's eSafety Commissioner to be a one-stop shop for children, parents, schools and other organisations so that if bullying of young people was taking place online there was a place they could go for assistance. Also legislated as part of the establishment of the Children's eSafety Commissioner was the world's first legislated mechanism for take-downs of cyberbullying material as it concerns children. The Office of the eSafety Commissioner has, so far, had a 100 per cent success rate in having that material taken down.

I take the time to mention this because the tools and support that the Office of the eSafety Commissioner have are not as well-known as we would like them to be. Where children are in difficulty, there is a place they can go. Over time, the role of the Children's eSafety Commissioner has expanded to cover, in particular, services and support for women and for victims of domestic abuse. As a result of that expanded mandate, we legislated and changed the name of the Children's eSafety Commissioner to the Office of the eSafety Commissioner to reflect the fact that they do have a broad remit. Julie Inman-Grant, as the eSafety Commissioner, is providing great leadership to the organisation and great support to members of the community. We're all very aware of recent instances of online abuse which have been in the media and some of the tragic circumstances that we have seen as a result of the contribution of those activities to the distress that individuals have.

In the context of this legislation, it's important that the civil penalties regime is seen as another tool, another avenue, another opportunity for people who are subject to image based abuse—the non-consensual sharing of intimate images. Civil penalties are an optional remedy that sits alongside criminal provisions which are in place at Commonwealth level and are in place in most state jurisdictions. There is a process underway under the auspices of the ministerial Council of Attorneys-General to achieve consistency in the state and territory legislation when it concerns criminal provisions. Sometimes, when we're talking about civil penalties, they're presented as though these are being put forward instead of criminal sanctions. They're not. They're being put forward as another option that is available to address this scourge.

So, with those comments, I encourage my colleagues to support the bill. I know colleagues have a range of amendments that they will be seeking to move, and I'm sure we will have a good discussion in that context.

Photo of Scott RyanScott Ryan (President) Share this | | Hansard source

The question is that the second reading amendment moved by Senator O'Neill, on sheet 8363, be agreed to.