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.
Senator Leyonhjelm has asked me to look closely at his amendments, which I have done. I can seek to provide some context to this particular part of the legislation. Let me start with the exclusion of a drawing, painting or sketch from a definition of an 'intimate image' that Senator Leyonhjelm is seeking.
Under the bill, an intimate image can be a still visual image, such as a photograph, or moving visual images, such as video recordings. Images could be photographs, modified photographs, animations, drawings or other depictions of the person, such as what is known as morph porn, and fake pornographic videos also known as deep fakes. There are exemptions in the bill whereby, if an ordinary reasonable person considered the posting or the sharing of the image acceptable in certain circumstances, it would not be captured by the prohibition. Obviously, we have in mind there things such as satirical drawings or parodies.
Moving to Senator Leyonhjelm seeking to exclude 'outdoor public place' in the definition of an intimate image, the definition of 'intimate image' includes depiction of a private activity where material will be an intimate image of a person if it depicts or appears to depict the person in a state of undress, using the toilet, showering, having a bath, engaged in a sexual act of a kind not ordinarily done in public or engaged in other like activity in circumstances in which an ordinary reasonable person would reasonably be expected to be afforded privacy. It wouldn't include a situation where a person is in their swimmers at the beach or showering at the beach.
The government remains of the view that the current definition does afford protection in circumstances where they would expect privacy. I certainly appreciate the sentiment and the motivation of Senator Leyonhjelm and, as he requested, we did look closely at his amendments, but the government aren't, at this point, minded to support those amendments. Obviously, legislation of this sort is always kept under review in the light of practical experience and its real-world operation. The Senate has already determined that there will be a statutory review in three years time, but, in the outworking of legislation, if there appear to be issues before that time, that is naturally something that I'm sure all colleagues would want to examine.
I want to indicate that Labor will not be supporting the amendment. It doesn't deliver the necessary change required to deliver the real outcomes that we have sought in our legislative recommendations for change in the course of this inquiry. It doesn't deter or practically respond to the non-consensual sharing of intimate images.
Minister, in the example you gave, that it wouldn't cover somebody in their swimmers at the beach, if a woman's normal cultural attire was a burkini and, on one particular day, that person was wearing some other kind of swimwear, would this legislation apply to that situation?
I will include all three examples rather than rise three times. If a woman's normal beach attire—you referred to swimmers—was a burkini, and that woman on one particular occasion was not wearing a burkini at the beach but some other form of swimwear, would that image, if posted, offend against this legislation? Would a picture of Cardinal George Pell not wearing his collar, his normal religious attire, offend against this legislation? Would a nun who was not wearing her habit but who normally wore her habit was photographed in a public place, would that offend against this legislation?
Thank you, Senator Leyonhjelm. In response to each of those three examples, the answer would be no. But I do just add the caveat that context is important in these matters and it would depend whether there was some other offensive depiction which might trigger this legislation. But, just in the pared-back examples you have given, the answer would be no in each case.
We do not support these amendments. I would like to remind Senator Leyonhjelm that just because a woman steps into a public space doesn't mean she no longer has a right to privacy and protection. I would think that this is a rather easily understandable point to make and it surprises me that it is lost on the senator in this case. Individuals must have, and can reasonably expect, privacy in various situations where they are in outdoor spaces. An obvious example of a phenomenon that is increasing and quite troubling in this area is upskirting and down-blousing. The highly offensive insinuation, I would argue, behind this amendment, as I have said, is that just because a woman, or any other person, steps out in public, they have given their consent for inappropriate and humiliating images to be taken and shared. Quite frankly, that is a disgusting insinuation to make. We proudly do not support these amendments, and I cannot for the life of me begin to think why such things would be put forward in this place.
I rise in defence of Senator Leyonhjelm. I do not take it that Senator Leyonhjelm's proposed amendments are based on the sorts of inferences that Senator Steele-John has made, that Senator Leyonhjelm is in any way a supporter of or wants to see legislative exemptions for the inappropriate depiction of women.
While the government isn't minded to support Senator Leyonhjelm's amendments, for the reasons I have outlined, I do not question for one second Senator Leyonhjelm's motivation. Senator Leyonhjelm's seeking to examine legislation, to test it and to ensure that, as well as protections, there aren't liberties that are needlessly infringed. I do feel compelled to reject the insinuations that Senator Steele-John makes in terms of the motivation of Senator Leyonhjelm's amendments. As I said, while we're not minded to support Senator Leyonhjelm's amendments; nevertheless, we do fully appreciate the spirit in which he has moved them.
I'd like to ask the minister a question: if a person who normally wears a burqa enters a courtroom and is required by the judge to remove her burqa and who is then photographed, and that photograph is then shown, where does that stand?
My view would be that a courtroom is not a private place and that individuals should comply with what they are directed to do within a courtroom. I'm sure that that context would be taken into account. Also, courts themselves will have certain rules in relation to what can be photographed and what can be recorded, for that matter, within their confines.
The CHAIR: The question is that the amendments (1) and (2), moved by Senator Leyonhjelm, on sheet 8368 be agreed to.
I move Liberal Democrats amendment (3) on sheet 8368:
(3) Schedule 1, item 18, page 10 (lines 1 to 13), omit section 9E, substitute:
For the purposes of the application of this Act to an intimate image, consent means consent that is:
(a) express; and
(b) voluntary; and
but does not include:
(d) consent given by a person who is in a mental or physical condition (whether temporary or permanent) that
(i) makes the person incapable of giving consent; or
(ii) substantially impairs the capacity of the person to give consent
This amendment prevents a $100,000 fine from being slapped on a person for posting an image of a child if the child consents to the posting of the image. I point out that a child is anyone under the age of 18. Currently the bill states that a child cannot give consent to the posting of their image, so even if a 17-year-old urged their friend or partner, who may also be 17, to post the image, that friend or partner could face a $100,000 fine under the bill as it stands.
If the image depicts a child in a sexual pose or sexual act, or with someone in a sexual pose or act, or if the image depicts a child's sexual organs, anal region or a female child's breasts then the image is child pornography. Regardless of the claims a person who posts such an image makes about consent, posting such an image is a criminal offence punishable by up to 15 years imprisonment, a fine of more than $100,000 or both. The only purpose of ruling out consent by a child in this bill is to impose fines upon a person for posting an image of a consenting child that isn't pornographic. It could be a picture of a child picking their nose or eating their earwax, which seems to be a qualification for becoming a leader of the Labor Party.
I urge senators not to let legitimate concerns about child pornography colour their views about a bill that is not about child pornography. A 17-year-old can consent to the posting of an image of them picking their nose, and the person who does the posting shouldn't face a $100,000 fine for doing so. I commend my amendment to the chamber.
I indicate that the government won't be supporting this amendment. Under the bill, consent to share an intimate image cannot be given by a child, who is a person under the age of 18, as Senator Leyonhjelm points out. This is because, to the extent that the definition of intimate image overlaps with the definition of child sexual exploitation material in the Commonwealth Criminal Code Act 1995, a lower age of consent for the distribution of intimate images would create an inappropriate inconsistency between the criminal and civil frameworks. The effect of this item is that a person under the age of 18 cannot provide consent to the sharing by another person of an intimate image of themselves, as distribution of this image would effectively constitute distribution of exploitative material. I should also point out that the Office of the eSafety Commissioner will, under this legislation, adopt a graduated approach to enforcing prohibitions: firstly, seeking the non-formal resolution of a complaint; then issuing formal written warnings, infringement notices and so on; and ultimately through to civil penalties, if those are warranted.
) ( ): If I understand this correctly, you're arguing that because of an inappropriate inconsistency if two friends, both of whom are 17, came to an agreement that they would have a nose-picking contest and would take and post pictures of each other picking their noses, and continued to do so repeatedly, notwithstanding warnings from the eSafety Commissioner, potentially they would be each exposed to $100,000 fines. You're saying that because of inappropriate inconsistency with laws relating to child pornography, you can't do anything to mitigate that rather absurd situation?
) ( ): In the first instance, someone would need to lodge a complaint. It would also have to be something that an ordinary, reasonable person would consider inappropriate. As with all these things, it's to do with context, but I wouldn't imagine that the particular case or example that Senator Leyonhjelm has cited would result in the consequences that he's flagged.
If normal, reasonable people like you and me, Minister, were eSafety commissioners, perhaps you could imagine that it wouldn't descend to the point where somebody would receive a $100,000 fine. My point is this: what is to stop that from occurring if the eSafety Commissioner were not as normal and reasonable as you and I?
We do not support this amendment; although we have some concerns related to the unintended consequences of teenagers engaging in consensual image-sharing activities. Our approach to this issue has been to ensure that under-18s cannot be exposed to harsh civil penalties. We believe that it is of the utmost importance to ensure that children have adequate protection from predators who might seek to exploit their images online.
If you have two underage 17-year-olds of whom photos have been taken, the images have been put out there and neither person is complaining about them, but the parents are complaining about those images, what's the ruling?
I just want to clarify this; I was preoccupied and am not sure whether I heard your answer correctly. Who will be responsible, subject to a complaint, for the penalty that's imposed in this respect? Senator Leyonhjelm's concern was that a child, a 17-year-old, could be fined $100,000. I'm sympathetic to the point that we accept that children are allowed to make decisions to get into sexual relationships with their peers from the age of 16. Yet we're saying that they're not able to consent to having an intimate image—which conjures up all sorts of suggestions; however, it's not child pornography, as we've described—publicly displayed. Further, I question the circumstances such as the Bill Henson pictures, which caused such a controversy so many years ago—I note the Prime Minister has some—which depicted children in an artistic setting, apparently, without the benefit of clothes. Are they deemed to be intimate pictures, and would someone like Mr Henson be subject to these sorts of penalties?
In relation to the question of who would enforce or determine civil penalties, the Federal Court would do so. In relation to the sharing of images, again, I point out that what we're talking about here is the sharing of images with third parties.
Minister, I'm sorry, maybe you misunderstood my question. Sharing images with third parties—we're not talking about child pornography; we're talking about intimate images, which conjures up scenarios where people anticipate it's pornography, but I think Senator Leyonhjelm's made the point it's not. So where does it leave the circumstance where you have someone like Mr Henson, who is a photographer who takes photos of prepubescent children in a state of undress? Those children are not eligible or able to give consent to having those photos taken, yet what happens if someone shares those images or puts them on public display? Where is this line drawn? I come back to the other point: how is it that children—and this is once again an emotive term, but it's a legal term—minors, are able to have sexual relationships with their peers at the age of 16, and we say they're mature enough, and we're realistic enough to make that assessment, yet they're not able to consent to having their images displayed in a manner of their choosing, in the scenarios which Senator Leyonhjelm has put forward?
I hesitate to put myself in the place of the court and speak to particular works by particular artists, but my understanding is that there is an exemption for artistic works. But, obviously, those artistic works need to be in accord with other legislation.
I just raise the question again: so it's okay for an 'artist'—and, for the benefit of Hansard, I put that in quotation marks—to take naked pictures of prepubescent children, but it's not okay for a 17-year-old to say, 'I'm happy for you to publish an image of me that's not a sexual image' to one of their peers? I just find this unusual, and I think that Senator Leyonhjelm makes a valid point—that we attribute any number of things to young adults, albeit, they are minors. We allow them to choose to smoke cigarettes if that's what they do, by legally allowing them to buy them; we allow them to engage in sexual relations; we have people who are advocating that they be allowed to vote; and yet we're not enabling them to consent to having their image shared in the manner in which they choose to do it. I just find that's not consistent with the approach of this legislation.
I'll just cite part of the bill before us, which states:
(g) an ordinary reasonable person would consider the post acceptable, having regard to the following matters:
(i) the nature and content of the intimate image;
(ii) the circumstances in which the intimate image was posted;
(iii) the age, intellectual capacity, vulnerability or other relevant circumstances of the depicted person;
(iv) the degree to which the posting of the intimate image affects the privacy of the depicted person;
(v) the relationship between the end-user and the depicted person;
All these things would need to be taken into account. I can't really give what would in effect be a ruling, which would be the place of the Federal Court if a matter was brought forward, when it would have regard to the particular matters which I've just cited.
I indicate that Labor will not be supporting the amendment. We concur with the minister's comments about the oversight of the court with regard to the matters discussed.
I move Liberal Democrats amendment (4) on sheet 8368:
(4) Schedule 1, item 26, page 16 (line 17), omit paragraph 44B(1)(d).
As currently drafted, the bill allows someone who posts an image to be hit with a $100,000 fine if they are ordinarily resident in Australia or if the person depicted is ordinarily resident in Australia. This means an Australian could be hit with a fine when no image of an Australian is depicted, so no Australian is harmed. That is wrong. It is the role of our government to protect Australians from harm, not to make Australians conform with a model of behaviour that is harmless to any other Australians. Posting a picture of President Donald Trump going to the toilet in Trump Tower might be in poor taste, but it should not be against Australian law. The government serves the people, not the other way around. The government is not our mother and it is not our nanny.
My amendment would limit the bill so that someone who posts an image could be hit with a $100,000 fine only if the person depicted is ordinarily resident in Australia. I commend my amendment to the chamber.
Senator Leyonhjelm is correct. Under the bill, if there is an Australian link, such as the perpetrator or the victim being ordinarily resident in Australia, the commissioner will be able to exercise his or her powers, including issuing removal notices to sites hosted in overseas jurisdictions. The proposed amendment would mean that the prohibition would only apply if the person depicted in the image is ordinarily resident in Australia, to my understanding. The effect of the amendment would prevent the commissioner exercising his or her powers if the victim wasn't ordinarily resident in Australia. The government won't be supporting the amendment.
The Greens do not support this amendment, as it seeks to prohibit the posting of an intimate image or threatening to post one only if the victim is an Australian resident and to remove the requirement for the perpetrator to be an Australian resident. There are obviously practical limits to the reach of the eSafety Commissioner, and it cannot be within their remit to police the entire internet, across all continents. But such a blunt instrument is unwise in this space.
I would like to clarify the point that Senator Leyonhjelm raised. You are saying that if they are a non-Australian and a photo was taken of them which they are not happy with, they can make a complaint with regard to that photo being taken. Therefore, if it goes through the legal system, would they pay for the court case or would it be the Australian taxpayer?
On the other hand, if they are a foreigner who's taken the photo of an Australian resident and they are charged and fined over it, how are we going to recover that money from them and who pays that cost?
To clarify, the perpetrator or the victim has to be Australian. In terms of who would pay for the enforcement activity, the Office of the eSafety Commissioner has a budget, and within that budget they would, firstly, seek a non-formal resolution of the complaint—if necessary, formal written warnings and infringement notices. Beyond that, matters would go to the Federal Court, who obviously have a budget for their particular activities. In short, the Office of the eSafety Commissioner is provisioned with resources to support the activities outlined in the legislation.
by leave—I move Liberal Democratic Party amendments (5) and (6) on sheet 8368:
(5) Schedule 1, item 26, page 16 (lines 23 to 26), omit the note.
(6) Schedule 1, item 26, page 16 (after line 26), after subsection 44B(2), insert:
(2A) Despite section 96 of the Regulatory Powers (Standard Provisions) Act 2014, in proceedings for a civil penalty order against a person for a contravention of subsection (1), the person does not bear an evidential burden in relation to the matter in subsection (2) of this section.
Despite the bill's title, the bill doesn't ban the non-consensual sharing of intimate images; instead, the bill bans the sharing of intimate images and then provides an exception for instances where the depicted person consents. This drafting approach matters because it puts the onus on the person facing the $100,000 fine to prove that the depicted person consented to the image being posted. It would be difficult for either side of a dispute about a posted image to prove consent or the absence of consent. In some cases, there'll be evidence confirming conversations about plans to post the image but in many cases there will be no such evidence.
I refer to my example of the nose-picking contest—if somebody disagrees or disputes that they posted consent. That highlights the difficulties. The difficulties don't justify reversing the well-founded convention that the party seeking to impose a penalty must prove behaviour in the circumstances that would justify such a penalty. My amendment would simply undo the reversal of the onus of proof. I'm hoping the Senate could be clear eyed on this matter, particularly given that revenge porn involves allegations about female perpetrators as well as male perpetrators. I commend the amendments.
Under the bill, consent to share an image must be express, voluntary and informed. The evidential burden of proof that consent was given—Senator Leyonhjelm was correct—lies with the person who shared the image in any civil penalty proceedings. Again, I emphasise that this doesn't relate to the sharing of images between two people; this relates to the sharing of those with a third party. Given the serious impact that this conduct of sharing beyond the individuals involved has on the victim, the government is of the view that it's appropriate that the alleged perpetrator prove consent to share an image.
The proposed amendments go towards addressing the concerns raised by the Scrutiny of Bills Committee. However, we do not believe that the civil penalty is akin to the criminal offence, as suggested by the committee. The penalty provisions are expressly classified as civil penalties. As such, there is no consequence in the form of criminal record. The high penalty reflects the serious nature of sharing an intimate image without consent and the harm and distress that that can then cause. Key concerns that we have expressed in the past related to the burden of proof on the complainant under the use of a carriage service to menace, harass or cause offence. We do not support placing undue pressure on victims in these cases. The reversal of the burden of proof in this instance allows the commissioner to investigate and determine matters based on evidence that is in the mind of the person around the nature of consent, whether it is expressly given or expressly not given or absent entirely. As such, we do not support these amendments.
by leave—I move amendments (1) to (6) on sheet 8366 together:
(1) Schedule 1, item 3, page 3 (line 20), omit "a person", substitute "an adult".
(2) Schedule 1, item 26, page 15 (line 19), omit "A person", substitute "An adult".
(3) Schedule 1, item 26, page 16 (line 17), after "person", insert "is an adult and".
(4) Schedule 1, item 26, page 21 (line 2), omit "A person", substitute "An adult".
(5) Schedule 1, item 26, page 21 (line 3), omit "the person", substitute "the adult".
(6) Schedule 1, item 26, page 21 (line 28), omit "A person", substitute "An adult".
As I mentioned in my speech during the second reading debate, we have serious concerns around the, hopefully, unintended implications of this legislation for the people under the age of 18 who will potentially face steep civil penalties under this regime. The government have indicated that the application of these penalties to people under the age of 18 is not their intention; however, to ensure that this unintended consequence does not arise, we seek to have this limitation enshrined in the legislation.
I would like to remind the chamber that the United Nations Committee on the Rights of the Child's general comment No. 10 states:
Children differ from adults in their physical and psychological development, and their emotional and educational needs. Such differences constitute the basis for the lesser culpability of children in conflict with the law. These and other differences are the reasons for a separate juvenile justice system and require a different treatment for children. The protection of the best interests of the child means, for instance, that the traditional objectives of criminal justice, such as repression/retribution, must give way to rehabilitation and restorative justice objectives in dealing with child offenders. This can be done in concert with attention to effective public safety.
The Law Council of Australia also notes:
Financial penalties will rarely be appropriate for children and young people. The Law Council suggests that the civil penalties regime could include not only infringement notices, formal warnings and take down notices, but also diversionary/rehabilitation processes, such as the possibility of a conference, attendance at counselling and participating in courses relating to cyber bullying and sexting.
Thank you, Senator Steele-John. The government won't be supporting the amendments moved by the Australian Greens. The penalties apply to all persons to ensure that there is a strong deterrent to engaging in the sharing of intimate images without consent.
In practice, as Senator Steele-John alluded to, the eSafety Commissioner will take a very cautious approach in relation to any complaint made against a perpetrator under 18 years of age. The eSafety Commissioner will firstly look to engage with the perpetrator in an informal manner and change behaviour. This informal approach has been successful under the existing cyberbullying regime. The commissioner does have the discretion to use other light-touch remedies, including issuing a formal warning notice. It is expected only light-touch remedies would be required in matters involving a perpetrator under 18 years of age. Strong remedies, including civil penalties, would only be used in exceptional cases, such as for a repeat offender where other remedies have been ineffective.
A contravention of the prohibition in the bill and/or a failure to comply with a removal notice triggers a civil penalty order provision contained in the Regulatory Powers Act. If the eSafety Commissioner does decide to apply for a civil penalty order, the court has the discretion as to whether it orders the person to pay the penalty. When determining the appropriate penalty amount, the court must take into account matters including the nature and extent of the contravention; the nature and extent of any loss or damage suffered because of the contravention; the circumstances in which the contravention took place; and whether the person has previously been found by a court to have engaged in any similar activity. So I think there are important things to bear in mind in terms of the operation of this legislation.
I'd like to ask the minister whether he is aware that there is a very, very substantive amount of research in the area of child justice that directly contravenes the idea of the application of criminal or civil penalties to people under the age of 18, due to the physiological reality that the development of a child is not at the same stage as the development of an adult and so it is most appropriate to apply diversionary, rehabilitative and educational approaches in those cases. It is my view that it was never the intention of the government to have this criminal regime apply to children, because I cannot in good conscience imagine that the minister, who is a man of great capacity, could possibly believe that it would in any circumstance be productive or just to apply a penalty of up to $107,000 to a child. So I would ask the minister again: is he comfortable with the possibility created by this legislation of applying such a penalty to children in the face of overwhelming evidence given in many forums, including by commissioners of this government, that such approaches are simply not effective, nor just, in relation to children?
I should point out that this is not a criminal regime for underage individuals that is being proposed here. This is a civil penalties regime that has application to the whole community. As I indicated before, the intention is that this is something that would be used in the case of repeat offenders, where other remedies have been ineffective. Senator Steele-John is quite right to point out there is a range of alternative remedies and it's appropriate that they are pursued. But, where you have repeat offenders, it is appropriate that we have a civil penalties regime in place. Just because a person is under the age of 18 does not mean that they are necessarily without the capacity to determine right from wrong. We are very much of the view that this is appropriate.
If I do follow the logic of what Senator Steele-John has said, however, I would assume, although I suspect it's not the case, that Senator Steele-John will not be supporting the criminal provisions put forward by NXT, because, to my understanding, they would apply to people below the age of 18. The government is not putting in place, through this legislation, a criminal regime to apply to people below the age of 18. I'm not suggesting that, where there are criminal provisions, they shouldn't apply to people below the age of 18, but I'm just seeking to follow the thread through with Senator Steele-John as to what the implications of his position in relation to the civil penalties regime might be for his stance in relation to criminal penalties amendments that might be moved later.
As the minister has rightly noted, it would be only in extreme cases that we would reach the stage of intervention in relation to children. Would the minister not agree that there are almost, imaginably, no cases in which a person below the age of 18 would be able to feasibly meet a civil penalty of $107,000? In fact, the burden of meeting this penalty would fall upon the child's family or extended family. In that case, wouldn't it simply be better to follow the advice of the Australian Law Council, guided by the views of the United Nations and embodied within the UN Convention on the Rights of the Child, and put in place a comprehensive, diversionary, educated, evidence based approach to dealing with this very serious issue in relation to children?
I would also remind the minister at this point in time that these questions with regard to the action of civil penalty regimes on children and their possible impacts are something we could have explored had the government agreed to my suggestion to allow the Senate to perform its role as a house of review and refer this bill to committee. These are serious issues which relate to the community as a whole, with a massive impact on children, both as victims and as perpetrators. This is a complex legislative area and, while I appreciate that the minister is providing us with the opportunity to scrutinise the legislation in this period, it would have been so much easier to answer these questions and produce a piece of legislation as robust, comprehensive and durable as that which is deserved by the victims of this most heinous crime.
I should point out that the civil penalties are only up to $105,000. As I've indicated before, if there were to be a civil penalty sought by the eSafety Commissioner through the Federal Court then it would be in circumstances where other remedies have been ineffective—where there'd been a repeat offender—and the courts, in determining the appropriate penalty amount, again, have to take into account the nature and extent of the contravention, the nature and extent of any loss or damage suffered, the circumstances of the contravention, and whether the person has previously been found by a court to have engaged in similar conduct. The courts can also determine not to apply a civil penalty. But, again, I emphasise that the eSafety Commissioner would firstly seek a non-formal resolution of the complaint, followed if necessary by a formal written warning, followed if necessary by an infringement notice. They have the option of enforceable undertakings, injunctions and, ultimately, civil penalties. So there are really six layers of the graduated approach that could be taken in these circumstances.
In terms of consultation, there was extensive public consultation last year. Senator Steele-John is right that this legislation hasn't been referred to a committee of the Senate for inquiry. That is something that sometimes happens, but often it doesn't happen. In this case I surmise that a majority of colleagues were not in favour of a Senate inquiry, given the extensive public consultation that had occurred and the extensive examination that colleagues have already given this legislation.
One Nation will not be supporting the Greens amendment to this bill. After listening to the senator's comments with regard to this, I note the Greens speak of people being underage, under adult age, and being children in their development and the way they think and decipher everything. I find this very hypocritical of the Greens, after seeing their policies. They wish to reduce the voting age to 16. The Constitution says that if you want to be a member of parliament you have to be on the roll, and being on the roll you are then entitled to stand for election as a member of parliament. So in one case the Greens say, 'They're underage; they don't have the development or the skills and they should be treated as children,' but on the other hand, in their policies, they're quite happy for someone who is 16 years old to be voting and to have their say. One Nation will not be supporting the Greens in this amendment.
Labor will not be supporting this amendment. We acknowledge that the amendment is designed to restrict the application of civil penalties to adults. But we note that the bill is under scrutiny by the Parliamentary Joint Committee on Human Rights, and we also note its report of 6 February this year. The entry for this bill in that report requests the advice of the minister as to whether the severity of the civil penalties that may be imposed on individuals is such that the penalties may be criminal in nature for the purpose of international human rights law. It also seeks advice from the minister as to the nature of penalties: if the penalties are considered criminal for the purposes of international human rights law; whether they're compatible with criminal process rights, including specific guarantees of the right to a fair trial; and the determination of a criminal charge, such as the presumption of innocence. It also refers to the right not to incriminate one's self, the right not to be tried and punished twice for an offence and a guarantee against retrospective criminal laws and whether any limitations on these rights imposed by the measures are permissible and whether the measures could be amended to accord with criminal process rights.
Labor notes that the committee has requested further information from the minister in relation to the penalties under this bill and notes this as further support for a criminal regime for image-based abuse, given the criminal process rights that are afforded to criminal penalties. That aside, Labor notes that the scrutiny by the Parliamentary Joint Committee on Human Rights did not identify any concerns in relation to Australia's obligations under the Convention on the Rights of the Child.
Labor appreciates and understands the value in having a strong legal framework in place to strengthen the eSafety Commissioner's ability to resolve matters informally and formally. We support the introduction of a graduated suite of redress mechanisms, to which the minister has added some flesh in his comments this morning. These responses include issuing removal of infringement notices, seeking a civil penalty order from a relevant court, enforceable undertakings or seeking an injunction for contraventions of the civil penalty provisions.
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 images, and, thus, a removal notice or other enforcement action may not be required in every case.
We also understand that the bill affords a number of checks and balances on the impact of the regime on children. Notably, these include affording the eSafety Commissioner discretion around whether an image meets the threshold of being an intimate image and around what responses to use in the event that there is a contravention, taking into account the unique circumstances of each case. These include factors such as the age of the child and the type of image, for example. Only in the most serious of cases, such as repeat offenders, multiple victims or noncompliance by bodies corporate, could the commissioner seek a civil penalty order in the Federal Circuit Court or the Federal Court, where the perpetrators might be fined up to 500 penalty units, which equates up to $105,000 for an individual and up to five times that amount, $525,000, for bodies corporate.
The need to obtain civil penalty orders in a court of law acts as a check on the potential imposition of civil penalties on child offenders. Labor understands that the application of a financial penalty on a minor would be a response of last resort for the repeat offender who has not responded to other redress mechanisms.
First of all, I'd like to respond to the ridiculous suggestion made by Senator Hanson of a similarity between my position on this issue and the Greens' general position in relation to the lowering of the voting age, of which I am a proud and long-term supporter. I would say to you very directly, Senator Hanson, through the chair, that having a say in your own future is not the same as being placed in a situation where you may have your future destroyed. There is such a blindingly clear difference between these two issues that I am, quite frankly, stunned by your inability to see the difference.
I now turn to the question of these amendments and the heart of the issue that they go to. I want to put this very clearly for everybody in this chamber: as currently written, the civil penalties regime outlined within this legislation, which could potentially place somebody at the risk of a fine of up to $107,000, is currently applicable to any person over the age of 10. I do not believe, absent of the political context, that any person present in this chamber would believe that a 10-year-old should come within the same galactic distance of a civil penalty of any shape or form. Any expert, or any person in this place who had taken the time to consult an expert or given the opportunity for this legislation to be consulted on and considered by experts—as is the job of this chamber—would have found a resounding suggestion that the clarification within these amendments be enshrined in the law. There can be no benefit to applying a civil penalty to a 10-year-old, regardless of the situation. I ask the minister once again: is he comfortable with the idea of implementing a civil penalty regime that would apply to 10-year-old Australians?
I'm very comfortable with a graduated regime that has six elements to it, and I am comfortable with having the determination in relation to civil penalties in the hands of the Federal Court, taking into account the four matters which I've previously listed that the Federal Court would be required to take into account.
Just for clarification: you could end up in a situation with this bill, through the suggested legislative framework, where somebody under the age of 18—again, as young as 10—through a violation of the non-compliance aspect of this legislation, for many and varied reasons, is before the Federal Court. Somebody as young as 10! Do you truly believe that it would not be better for that person in that situation to be diverted, as the Law Council of Australia has suggested? I can tell you now that, had either side of this chamber decided to refer this bill to a committee, the Law Council of Australia would have given the feedback that there are not appropriate diversionary pathways within this legislation. Does the minister sit here seriously suggesting that a 10-year-old child would be better off, under any circumstance, interacting with the Federal Court system?
I draw Senator Steele-John's attention to the fact that the eSafety Commissioner would firstly seek non-formal resolution of a complaint, that they have the option of formal written warnings, infringement notices, enforceable undertakings and injunctions, and that civil penalties are the last resort. It is a graduated regime. There's no suggestion that civil penalties are a first resort. As I said before, I have confidence in the Office of the eSafety Commissioner and the Federal Court.
Is it the understanding of the minister that, within this legislative framework, the eSafety Commissioner is able to delegate the discretion to make such recommendations to any person or relevant person within ACMA?
I draw the minister's attention to subsection 46A(2), which would allow the eSafety Commissioner to delegate authority to issue infringement notices to any member of the staff of ACMA, which can be any APS employee. This was an issue raised within the small time of scrutiny that was given by the Senate Standing Committee for the Scrutiny of Bills. It was noted as one of their concerns. This allows the delegation of administrative powers to a relatively large class of persons with little or no specificity to their qualifications or attributes. The committee also noted that the explanatory memorandum provides no explanation for the broad delegation of power to issue infringements. Can the minister please justify, in relation to this amendment, the reality that this broad delegation of power gives to any employee of ACMA the ability to issue an infringement notice to a child as young as 10.
Under the bill the eSafety Commissioner is able to issue an infringement notice and can delegate this power by authorising staff at the Australian Communications and Media Authority in writing to undertake this duty. I think it's important for colleagues to understand that the staff of the Office of the eSafety Commissioner are technically employed by ACMA, so the intention isn't that the entirety of ACMA would have that capacity. This arrangement would permit the commissioner to authorise appropriate staff to be infringement officers. In practice, it's expected that the commissioner would only delegate this power to senior staff with appropriate attributes, qualifications, qualities and relevant experience.
I again draw the minister's attention. What he has just outlined is the fact that the power to issue these infringement notices can be delegated to those with absolutely no qualifications in the space. You've just expressed that, in practice, you believe it would be best if the commissioner were to delegate those notices and the issues of those notices to those with the appropriate qualifications and that those be senior officers. Again I ask the minister: if that's your aspiration for how this process would work, why not clearly state that within the legislation?
The delegation is for the eSafety Commissioner to give. There is no automatic right to anyone in ACMA to have the capacity to issue such infringement notices. That capacity rests with the eSafety Commissioner, who can delegate to officers that she deems to be appropriate.
The reason ACMA is specified is because the staff of the eSafety Commissioner are employed by ACMA. So she has the authority to delegate and will do so to appropriate individuals.
I move the Nick Xenophon Team amendment on sheet 8371:
(1) Page 27 (after line 18), at the end of the Bill, add:
Schedule 2—Amendments to the Criminal Code Act 1995
Criminal Code Act 1995
1 Section 473.1 of the Criminal Code
intimate image has the meaning given by section 9B of the Enhancing Online Safety Act 2015, but does not include an intimate image under subsection 9B(4).
2 After Subdivision D of Division 474 of the Criminal Code
Subdivision DA—Offences relating to use of carriage service for transmitting, etc. intimate images
474.24D Concurrent operation intended
(1) This Subdivision is not intended to exclude or limit the concurrent operation of any law of a State or Territory.
(2) Without limiting subsection (1), this Subdivision is not intended to exclude or limit the concurrent operation of a law of a State or Territory that makes:
(a) an act or omission that is an offence against a provision of this Subdivision; or
(b) a similar act or omission;
an offence against the law of the State or Territory.
(3) Subsection (2) applies even if the law of the State or Territory does any one or more of the following:
(a) provides for a penalty for the offence that differs from the penalty provided for in this Subdivision;
(b) provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Subdivision;
(c) provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Subdivision.
474.24E Using a carriage service for transmitting, etc. intimate images
(1) A person commits an offence if:
(a) the person transmits, makes available, publishes, distributes, advertises or promotes material; and
(b) the material is an intimate image; and
(c) the person engages in the conduct mentioned in paragraph (a) without the consent of a subject of the material; and
(d) the person knows of, or is reckless as to, the subject's lack of consent; and
(e) the person engages in the conduct mentioned in paragraph (a) using a carriage service.
(a) in the case of an aggravated offence (see section 474.24H)—imprisonment for 5 years;
(b) in any other case—imprisonment for 3 years.
Transmission etc. to subject of material
(2) In a prosecution for an offence against subsection (1), the prosecution must prove that the conduct mentioned in paragraph (1) (a) did not consist solely of a transmission, making available, publication, distribution, advertisement or promotion of an intimate image to a subject in the intimate image.
(3) For the purposes of paragraph (1) (c):
(a) a subject in an intimate image consents to the conduct mentioned in paragraph (1) (a) if the subject gives either:
(i) a general consent covering conduct of the kind engaged in by the first person;
(ii) consent to the particular instance of conduct engaged in by the first person; and
(b) the consent may be given expressly or by necessary implication.
Use of carriage service
(4) Absolute liability applies to paragraph (1) (e).
Note: For absolute liability, see section 6.2.
(5) As well as the general defences provided for in Part 2.3, defences are provided for under section 474.24J in relation to this section.
(6) In this section:
consent means free and voluntary agreement.
474.24F Using a carriage service—making a threat about intimate images
(1) A person (the first person) commits an offence if:
(a) the first person makes a threat to another person (the second person) to transmit, make available, publish, distribute, advertise or promote an intimate image of which the second person or a third person is a subject; and
(b) the first person intends the second person to fear that the threat will be carried out; and
(c) either or both of the following apply:
(i) the first person makes the threat using a carriage service;
(ii) the threat is to transmit, make available, publish, distribute, advertise or promote the intimate image using a carriage service.
(a) in the case of an aggravated offence (see section 474.2411)—imprisonment for 5 years;
(b) in any other case—imprisonment for 3 years.
Actual fear not necessary
(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the person receiving the threat actually feared that the threat would be carried out.
Intimate image need not exist
(3) For the purposes of subsection (1), it is irrelevant whether the intimate image actually exists.
Use of carriage service
(4) Absolute liability applies to paragraph (1)(c).
Note: For absolute liability, see section 6.2.
(5) In this section:
fear includes apprehension.
474.24G Possessing, controlling, producing, supplying or obtaining an intimate image for use through a carriage service
(1) A person commits an offence if:
(a) the person:
(i) has possession or control of material; or
(ii) produces, supplies or obtains material; and
(b) the material is an intimate image; and
(c) the person has that possession or control, or engages in that production, supply or obtaining, with the intention that the material be used:
(i) by that person; or
(ii) by another person;
in committing an offence against section 474.24E (using a carriage service for transmitting, etc. intimate images) or 474.24F (using a carriage service—making a threat about intimate images); and
(d) the person has that possession or control, or engages in that production, supply or obtaining:
(i) for a commercial purpose; or
(ii) for the purpose of obtaining (whether directly or indirectly) a benefit.
(a) in the case of an aggravated offence (see section 474.24H)—imprisonment for 10 years;
(b) in any other case—imprisonment for 5 years.
(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 474.24E or 474.24F is impossible.
(3) It is not an offence to attempt to commit an offence against subsection (1).
474.24H Aggravated offences
(1 ) For the purposes of this Subdivision, an offence committed by a person (the offender) where the intimate image is of a person who is, or the offender believes to be, under 16 years of age is an aggravated offence.
(2) If the prosecution intends to prove an aggravated offence, the charge must allege the relevant aggravated offence.
(3) If, on a trial for an aggravated offence, the trier of fact is not satisfied that the defendant is guilty of the aggravated offence, but is otherwise satisfied that the defendant is guilty of the corresponding (non-aggravated) offence against section 474.24E, 474.24F or 474.24G, it may find the defendant not guilty of the aggravated offence, but guilty of the relevant corresponding offence.
(4) Subsection (3) only applies if the defendant has been afforded procedural fairness in relation to the finding of guilt for the corresponding (non-aggravated) offence against section 474.24E, 474.24F or 474.24G.
474.24J Defences in respect of intimate images
(1) A person is not criminally responsible for an offence against section 474.24E (using a carriage service for transmitting, etc. intimate images) or 474.24G (possessing etc. an intimate image for use through a carriage service) because of engaging in particular conduct if the conduct:
(a) is of public benefit; and
(b) does not extend beyond what is of public benefit.
In determining whether the person is, under this subsection, not criminally responsible for the offence, the question whether the conduct is of public benefit is a question of fact and the person's motives in engaging in the conduct are irrelevant.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).
(2) For the purposes of subsection (1), conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in:
(a) enforcing a law of the Commonwealth, a State or a Territory; or
(b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or
(c) the administration of justice; or
(d) conducting scientific, medical or educational research that has been approved by the Minister in writing for the purposes of this section.
(3) A person is not criminally responsible for an offence against section 474.24E (using a carriage service for transmitting, etc. intimate images) or 474.24G (possessing etc. an intimate image for use through a carriage service) because of engaging in particular conduct if:
(a) the person engaged in the conduct for the purposes of collecting, preparing for the dissemination of, or disseminating:
(i) material having the character of news, current affairs, information or a documentary; or
(ii) material consisting of commentary or opinion on, or analysis of, news, current affairs, information or a documentary; and
(b) the person did not intend the conduct to cause harm to a subject of the material; and
(c) the person reasonably believed the conduct to be in the public interest.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see
Duties of law enforcement officer, or intelligence or security officer
(4) A person is not criminally responsible for an offence against section 474.24E (using a carriage service for transmitting, etc. intimate images) or 474.24G (possessing etc. an intimate image for use through a carriage service) if:
(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and
(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see
Prohibited content and content filtering technology
(5) A person is not criminally responsible for an offence against section 474.24E (using a carriage service for transmitting, etc. intimate images) or 474.24G (possessing etc. an intimate image for use through a carriage service) if the person engages in the conduct in good faith for the sole purpose of:
(a) assisting the Children's e-Safety Commissioner to detect:
(i) prohibited content (within the meaning of Schedule 7 to the Broadcasting Services Act 1992); or
(ii) potential prohibited content (within the meaning of that Schedule); in the performance of the Commissioner's functions under Schedule 5 or Schedule 7 to that Act; or
(b) manufacturing or developing, or updating, content filtering technology (including software) in accordance with:
(i) a recognised alternative access-prevention arrangement (within the meaning of clause 40 of Schedule 5 to the Broadcasting Services Act 1992); or
(ii) a designated alternative access-prevention arrangement (within the meaning of clause 60 of that Schedule).
Note: A defendant bears an evidential burden in relation to the matter in this subsection, see
474.24K Consent to commencement of proceedings where defendant under 18
(1) Proceedings for an offence against this Subdivision must not be commenced without the consent of the Attorney-General if the defendant was under 18 at the time he or she allegedly engaged in the conduct constituting the offence.
(2) However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, such an offence before the necessary consent has been given.
3 Subsections 475.1A(1) and (2) of the Criminal Code
After "D,", insert "DA,".
4 Paragraphs 475.1B(1)(a) and (2)(a) of the Criminal Code
After "D,", insert "DA,".
This amendment introduces three new offences into the Commonwealth Criminal Code with respect to the non-consensual sharing of intimate images—namely, knowingly or recklessly producing intimate images without consent, knowingly or recklessly sharing intimate images without consent, and threatening to take and/or share intimate images without consent, irrespective of whether or not those images exist. These offences make it clear that it is the victim's consent that has paramount consideration and not whether the alleged perpetrator intended to cause harm. These take into consideration the final recommendations of the Senate inquiry into the phenomenon known as revenge porn.
I'll just speak briefly to the amendment moved by Senator Griff and outline why the government won't be supporting it. Firstly, the amendment moved is a departure from the bill's intent, which is to introduce a civil penalties regime as opposed to amending the Criminal Code. Existing criminal laws—Commonwealth criminal laws, I should point out—do comprehensively criminalise the non-consensual sharing of intimate images. It is an offence to use the internet, social media or a mobile phone to menace, harass or cause offence. There have been a number of successful prosecutions for the non-consensual sharing of intimate images under this offence. There are also extensive child abuse material offences which apply to the sharing of intimate images of children.
Broadly framed provisions of general application are generally preferred for Commonwealth offences. Broad provisions can be used to prosecute a range of criminal behaviours and avoid issues such as technical distinctions, loopholes and difficulties with prosecution that are associated with having similar provisions of slightly different operation against Commonwealth law.
The focus of this bill is the creation of a civil penalty process to provide victims with an alternative avenue for redress without requiring victims to go through the criminal justice system, if that is what they choose. Extensive public consultation during the development of the civil penalty regime confirmed that assistance taking down images is a key priority for victims. I should also point out that, to ensure a nationally consistent criminal framework to protect victims, the Australian government led the development of a national statement of principles relating to the criminalisation of the non-consensual sharing of intimate images. The principles are working to ensure a consistent approach by states and territories to criminalise the non-consensual sharing of intimate images. They also ensure a consistent response and outcome for victims and perpetrators, no matter where they are located.
I want to highlight that, in not supporting Senator Griff's amendments, the government is in no way indicating a lack of support for, and/or a lack of importance of, having criminal provisions. As I say, we do have some existing criminal provisions at Commonwealth level, and at state and territory level there are also criminal provisions, and there are efforts underway to harmonise those. In this area, there is no single response that can satisfy the need. There needs to be a wide-ranging approach with a number of elements. Criminal provisions are important. Seeking to educate people is important. Non-formal resolution is important. What we're seeking to do through this legislation is to provide an avenue for resolution and an avenue for redress through a graduated civil penalties regime that is not currently in place. I just thought that context might be helpful for colleagues.
I just want to put on the record, as we're about to approach a vote on the amendment that's put forward here by NXT, the context in which this is happening. Labor support this bill, but we have consistently said that it doesn't go far enough to address the seriousness of image based abuse.
The context is that, in October 2015, Labor introduced a private member's bill that would make the non-consensual sharing of 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 clarification of 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 actually went to the last federal election, in the year 2016, promising Commonwealth legislation to criminalise what we're talking about here today—to criminalise what was then called 'revenge porn' but within this legislation is called 'non-consensual sharing of images'. We promised to do that within the first 100 days of being elected because we sensed the urgency of this matter, and we sensed that the urgency that exists about action on this matter to criminalise this sort of conduct is shared by the Australian people.
In October 2016, Labor reintroduced its private members bill into 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. It's all well and good for the minister to say that criminal priorities are important, but this is the action, or lack of action, that we've seen.
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 image-based abuse, but that motion was defeated. It's clear, in our view, that what is proposed in this bill by the government doesn't go far enough. The non-consensual sharing of intimate images is exploitative, is humiliating and is a very damaging form of abuse, and it needs to be treated as such.
Labor is pleased that the Xenophon party has joined Labor in calling for the criminalisation of image-based abuse. Labor has been the proponent of this and has approached it in a very measured way based on our extensive work behind our own private member's bill, which the government refused to bring on. This was a 2016 election policy, and Labor will take it to the next election, if we don't see action from this government. The Xenophon party has adopted Labor's position. Indeed, they have adopted the very words of Labor's private member's bill as their own. Labor's clear and longstanding position has been that the non-consensual sharing of intimate images should be made a criminal offence. We thank the Xenophon team for moving these amendments.
Labor will not oppose what is essentially its own private member's bill that was prosecuted for several years but rejected by the government. While Labor supports the introduction of a civil penalties regime as a step in the right direction, the government's bill doesn't go far enough. Labor supports the introduction of a civil penalties regime. However, we do not oppose this amendment given it's, effectively, our own bill. Labor didn't move the amendment itself, because we didn't want to risk the government packing up its bags and packing up its bat and ball and going home, if this amendment gets up in the Senate. It's important to note that the government has indicated that, potentially, it'll pull the civil penalties bill from the program, if this amendment is carried. That's of great concern. We urge the government to give the four-out-of-five Australians who want criminalisation what they want by letting this bill continue its progress through the parliament, whether or not this amendment succeeds in the Senate.
I'll put on the record again—lest anyone who tunes into the debate or is subsequently reading the Hansard is under the impression that there are currently no Commonwealth criminal provisions in this area. Under the Commonwealth Criminal Code Act 1995 it is an offence to use a carriage service in a menacing, harassing or offensive way. That is section 474 of the Criminal Code. The maximum penalty for this offence is three years imprisonment and/or a fine of up to $37,800. Since 2004 there have been 927 charges proven against 458 defendants under this offence, including a number of cases in relation to the non-consensual sharing of intimate images.
As I mentioned before, in May 2017 the Law, Crime and Community Safety Council, which is the ministerial council for the Attorneys-General, published National statement of principles relating to the criminalisation of the non-consensual sharing of intimate images. Alignment on key principles is an important initiative, as most offences are likely to be prosecuted at that state level. Can I indicate, in terms of individual jurisdictions, that most states already have criminal laws, and those that do not are considering it or progressing it. I'm advised that New South Wales, the ACT, South Australia, Victoria and Western Australia have criminal laws for specific non-consensual sharing of intimate images, that the Northern Territory has introduced a bill with specific laws, and that Queensland and Tasmania intend to introduce specific laws. That is the current status in the Commonwealth, and in state and territory jurisdictions.
As I mentioned earlier, what we're proposing here in this legislation is a civil penalties regime to complement the existing and emerging criminal provisions at Commonwealth, state and territory levels. For those reasons, and because of the Law, Crime and Community Safety Council process, we're not intending to support the amendment moved by Senator Griff. If the amendment moved by Senator Griff is successful in the Senate, it may well be the case, after the transmission of this bill to the House, that it comes back to the Senate again in an amended form from the other place. If that were to occur, I would hope that colleagues at that point would not allow the disagreement over the Stirling Griff amendment to delay the passage of the civil penalties regime into law.
Here we are. After what seems like many eternities of considering different aspects of this legislation, we come now to the critical question of whether the government can rise above its own all-too-often inclination towards petulance and actually pass through this place a piece of legislation that would give criminal recourse to the more than five million Australians who live within the Northern Territory and within the state of Queensland and who currently have no criminal recourse in this matter. There may well be a bill before the NT, but we have the opportunity to do something now.
I'm happy to hear the minister allude to the government's intention to pass this bill, amended by NXT, to the other place and that he has expressed the hope that when it returns a disagreement over this issue does not sink the legislation. I say to him that that is a ball firmly within his court. Amended, as suggested by NXT, this legislation addresses the very profound nature in which the different criminal and civil penalty regimes of the states differ. That is critical in addressing this problem. I don't know whether the minister has had the opportunity to review the information given to a current Senate inquiry into the issue of cyberbullying, of which this is an oft talked about aspect, but it was very clear to all of those who participated that variations in state legislation pose significant challenges to victims when seeking recourse in this way.
Indeed, last year my predecessor, Scott Ludlam, expressed his disappointment and frustration that the legislation before the Senate at that time with regard to the sharing of intimate images had been pushed off in the criminal space for the states to handle in a piecemeal manner. I skip ahead eight months now, and states and territories have acted. But, again, I draw your attention to the reality that there are five million Australians currently without criminal recourse. The Australian Greens believe that the civil penalty regime proposed in this legislation complements existing criminal regimes related to the non-consensual sharing of intimate images; however, there is undeniable and inescapable merit in extending criminal redress processes to those Australians currently without it.
There is a need, when considering these issues of such a serious and complex nature, which impact upon the lives of so many Australians in ways which are unimaginable to some members of this chamber yet are a part of the lived experience for others, that we attempt even momentarily to rise above the inclination towards political opportunism and towards discourses which place political gain above the interest of vulnerable community members who are experiencing abuse. In our roles as representatives in this place we have heard on many occasions from victims of these horrific crimes. We have also heard from these individuals that there is a culture in this nation which does not lend itself to the taking of these issues seriously; in fact somebody remarked to me last week that, in relation to the issue of cyberbullying—particularly as it pertains to predatory trolling and the rather violently inclined abuse of our female journalists who work in this place every day—our cultural attitude, our implementation of law and the understanding which our community, law enforcement and employers have is akin to where the conversation with regard to domestic violence was 30 years ago.
Fellow citizens, predominantly women—in many cases people with a disability, members of the LGBTI community, and Aboriginal and Torres Strait Islanders—suffer daily under the threat that images of themselves in the most private of situations will be shared with a community of billions, due to motivations of hatred and discrimination. A cultural change is needed in this nation. We must now turn towards treating these crimes with the seriousness they deserve. This parliament, by passing this legislation as amended, has the opportunity now to send a very clear message. I urge the government to join us in sending that message and, should the bill return amended from the other place, to support it once again. I urge the minister to utilise his charisma and influence within his party room—not inconsiderable, I'm sure—to convince his colleagues of the need to pass this legislation.
This is an issue of pre-eminent national importance. This is not something which should have been brought on with haste. This is not something which should have been brought on in a political context happening elsewhere. This is not something which should have been dealt with in the fifth year of this government or any government. It should have been something that was dealt with thoroughly, calmly and fastidiously in the first moments of a government's life. But, here we are; this is what we have been given. This is the opportunity before us to make change and to send a message. We support these amendments and I would urge you, as a colleague and as a man who I believe is in possession of profound intellect, to support these amendments as well. I commend them to the House.
Having heard the minister's responses, it really concerns me that he is continuing to assert that the criminal regime around the country is adequate to deal with this issue. I'm very mindful of the recent social media campaigns, the #MeToo campaign, which put in a public place the level of embedded abuse that is part of the cultural practices of our time. I think it goes to some of the points that Senator Steele-John has just made. The reality is that here today in this chamber, with no further delay, with no more weasel words, the government could take a position to criminalise the sharing of intimate images against someone's will. That's it. It's not like it's a big risk for the government to do this. Four out of five Australians are saying, 'Good on you, you should do it.' We know that Australians want this. We all should know, if we're paying attention to the cultural practices of our time, that a criminal regime is what is called for and what is needed. But still we have these weasel words, still we have this delay, still we have this very passive description of the current structures being adequate. In our view they certainly are not. I have a couple of questions for the minister directly. To what extent, Minister, do you believe a civil penalty scheme will assist the eSafety Commissioner in prosecuting rogue operators, including overseas operators?
Thanks, Senator O'Neill. When it comes to overseas operators or hosts, I guess, of offending material, the eSafety Commissioner works through a number of global law enforcement networks and also social media networks to endeavour to have offending material taken down. As with all online matters, we always have the challenge that the Australian jurisdiction does not extend beyond the borders of Australia, but this will be further strength to the arm of the eSafety Commissioner.
Just to respond to some of Senator O'Neill's earlier points, the impression that has been left by some of the contributions around the chamber is that there has not yet been the criminalisation of the sharing of intimate images. There already has been the criminalisation of that. Under the Commonwealth Criminal Code, as I have referred to before, it is an offence to use a carriage service in a 'menacing, harassing or offensive' way. Also, I have referred to some of the existing state laws that have criminalised this conduct and some of the laws that are in prospect. So, we do have criminal offences.
What we currently don't have is a civil penalties regime. Delay to the passage of this legislation will be delaying something that does not currently exist, and that is a civil penalties regime. A civil penalties regime will benefit victims practically immediately.
Now, it's entirely legitimate for there to be ongoing discussion and debate about criminal provisions at both the Commonwealth and the state levels, and I'm sure that will continue, but that particular debate is not a reason to tie up this civil penalties regime. I would encourage colleagues to support the passage of legislation which is intended to set up a civil penalties regime and not to have it tied to other debates.
Minister, with respect, this doesn't have to be an either-or proposition. This amendment gives you the opportunity to do and-and. We've constantly said this, and this chamber has expressed support for the civil penalty regime, but there's an opportunity here for you to do what needs to be done to give people actual choice to prosecute, to go through a criminal scheme to access justice.
Yesterday I made some points about the reality that we have limited choice that's available to victims of the sharing of images to which they haven't given consent. We acknowledge that not everybody will want to pursue the criminal proceedings and some of them would actually prefer to work with the eSafety Commissioner, and a civil regime is okay in that context, but, at the moment, the choice for people to actually prosecute through criminal courts is simply not available to so many Australians. There needs to be a deterrent. Everybody understands this. At least four out of five Australians are saying there needs to be a deterrent. This is sufficiently unpleasant behaviour—this is sufficiently criminal behaviour—that it warrants the Criminal Code, not just a civil regime. That's the view of Australia right at this point of time. I think, Minister, you are completely out of touch with it when you say we have to choose between one or the other.
With regard to your response to my question regarding overseas jurisdictions, we have had, through the eSafety Commissioner's engagement with major social media players, a very good relationship develop, and we have seen improvements in the speed with which images have been removed, because there's reputational damage to those large entities. But, for those overseas rogue players whose business is in fact providing a platform for the sharing of images to which people have not consented, there needs to be some deterrent here at home to stop people from doing that. Criminalising it will provide that deterrent, Minister.
Could you respond to those points and also help me understand: does the minister acknowledge that a criminal regime would provide the eSafety Commissioner with greater clout and capacity to prosecute rogue operators and potentially give the eSafety Commissioner greater success when it comes to enforcement?
Can I say again: there are existing criminal provisions. If a question is posed to someone, 'Do you think there should be criminal provisions?' they will say yes. And there are criminal provisions. If a question is put to someone with the implication that there aren't currently criminal provisions, then I understand that people would say, 'Yes, there should be.' And there are criminal provisions at the Commonwealth level. There are criminal provisions in most jurisdictions, and those that don't have them are looking to put them in specifically in relation to this matter.
I'm not suggesting, and never have suggested, that this is a case of either-or, of either civil penalties or criminal provisions. I've said that civil provisions complement criminal provisions. We do have criminal provisions at the moment. What we don't have at the moment is a civil penalties regime, and that's what this legislation seeks to put in place.
Senator O'Neill asked, in terms of a criminal regime or further amendments to the criminal regime, if that would be of assistance to the eSafety Commissioner. The answer to that is that, at present, the criminal regime is one that would be pursued by the Australian Federal Police. That could well be the case with further amendments. That is the law enforcement body for criminal provisions at the Commonwealth level.
In terms of enforcing legislation in overseas jurisdictions, while the eSafety office does have a great deal of success in working cooperatively with sites and services hosted overseas to have material removed, as Senator O'Neill has mentioned, it is extremely difficult to compel sites hosted overseas to remove material, because Australian law covers Australia. We don't have an extraterritorial capacity in relation to these matters, and that's where cooperation with partner organisations overseas is extremely important.
I'm sure the minister is aware of submissions made to the inquiry into this matter by the Commonwealth Director of Public Prosecutions. The concerns that the Commonwealth Director of Public Prosecutions expressed were that there are limitations on existing Commonwealth laws to adequately deal with revenge porn. The submission stated those exact words:
There are limitations on existing Commonwealth laws to adequately deal with 'revenge porn' conduct.
Is the minister aware of those concerns from the DPP?
I'm aware that there is a range of submissions on this subject area. I have never said that the Criminal Code at Commonwealth and state levels is set in stone and should never be altered or examined. My point is that what is before us is legislation to establish a civil penalties regime, that we should have this legislation passed in its current form and that there are other processes and opportunities to examine the criminal law. At the moment, the prime vehicle for that is the Law, Crime and Community Safety Council.
I read that as the minister being aware of the Commonwealth Director of Public Prosecutions pointing out to the government that there are limitations that need a response but refusing to take that on board. Is the minister aware of the comments arising from the COAG Advisory Panel on Reducing Violence against Women and their Children, which recommended:
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.
They expressly used the words 'criminal nature'. Does the minister reject or accept the submission seeking to reduce violence against women and their children?
The civil penalties regime that we're seeking to legislate here is a very strong response and very strong contribution to addressing these issues. As I say, there are existing criminal provisions at the Commonwealth and state levels. As I said before, I have never suggested that they are set in stone or that it's not appropriate to examine those. That is something that is happening through the Law, Crime and Community Safety Council and the national statement of principles relating to the criminalisation of the non-consensual sharing of intimate images.
Minister, referring to your comments on international cooperation and enforcement against rogue operators, the INHOPE website states:
INHOPE focuses on responding to criminally illegal content and activity.
Would the minister rather the resources of the AFP be used to prosecute this material than the eSafety Commissioner via the INHOPE network?
In light of your comments about it being a shared endeavour, I can't understand why this piece of legislation can't undertake a cooperative approach to criminal and civil law at this point in time. The minister has acknowledged that the AFP has a role to play—and there's an integration of services to address these issues. Is the minister aware that, at a Senate hearing, the AFP said 'uniformity in legislation across Australia would be most helpful for police in order to be able to investigate and charge perpetrators'?
That doesn't surprise me, because the objective of the Law, Crime and Community Safety Council national statement of principles relating to the criminalisation of the non-consensual sharing of intimate images is aligned on key principles and offences through those jurisdictions.
I will take that to be the case. Are you aware of the state of Queensland?
The CHAIR: Senator Steele-John, I will make—
This is going somewhere, Chair.
The CHAIR: Senator Steele-John, don't interrupt me, please. It is the minister's prerogative to answer or not answer questions. I'm just making you aware of that.
I presume he would be aware of the state of Queensland and of the digests. So I can't quite understand—and maybe the minister can elaborate for the chamber—why he continues to assert that there are criminal penalties which protect Australians when 4.6 million Australians are currently without criminal recourse due to the fact that the state of Queensland—which is a state of Australia, as noted in the digest—is without a criminal regime. I would like to ask the minister, given his understanding of the underlying issues, why he does not believe that we should take this opportunity to extend a criminal source of redress to the people of Queensland.
I've already indicated that Queensland and Tasmania intend to introduce specific laws and that, under the Commonwealth Criminal Code, it's an offence to use a carriage service in a menacing, harassing or offensive way. The Commonwealth Criminal Code Act applies to all of Australia, including Queensland and Tasmania. The Queensland state Labor government stated on 25 November 2017 that, if re-elected—and they have been—it would criminalise the non-consensual sharing of intimate images. Premier Palaszczuk said at the time:
… the laws will apply to people who send or threaten to send explicit material without consent.
That is the intent of the Labor government of Queensland, which I have already referred to. Again, the Commonwealth Criminal Code Act applies to the whole nation.
The CHAIR: The question is that amendment (1) on sheet 8371, moved by Senator Griff, be agreed to.