21 June 2017

2nd Reading Speech

The Hon. ADAM SEARLE ( 17:33 ): I lead for the Opposition in debate on the Crimes Amendment (Intimate Images) Bill 2017. The Opposition does not oppose the bill. The object of the bill is to amend the Crimes Act to create new offences in relation to the non-consensual sharing of intimate images. The non-consensual distribution of intimate images—also commonly called revenge porn and in some contexts called image-based sexual abuse—has increased substantially in line with technological developments. Images can be distributed frequently and easily, granted the availability of online platforms. There is broad agreement about the significant harm that can result for the victims of this behaviour; it is widespread particularly in generations younger than me.

In a submission on the Government’s discussion paper, Dr Nicola Henry, Dr Anastasia Howell and Dr Asher Flynn referred to their Australian survey on online abuse and harassment, which had almost 3,000 adult Australian respondents. The survey found that one in 10 Australians had a nude or semi-nude image of them distributed online or sent to others without their permission. This type of behaviour is often associated with domestic violence. The submission from the Eastern Suburbs Domestic Violence Network specifically notes an increase in the use of technology to perpetrate domestic violence. There is a wide range of motivations and intentions involved, however. And as the Government has noted previously, what constitutes an intimate image can vary according to community standards.

There is currently no clear, dedicated criminal offence to deal simply with the non-consensual sharing of intimate images. There are several provisions that in some circumstances cover some of those situations. In the case of section 578C of the Crimes Act, Publishing Indecent Articles, a person needs to do some conceptual damage to make it fit these circumstances—if the image was created consensually it seems odd to regard it as indecent, and rely upon its nature to found a prosecution and only regard it as indecent when it is distributed. The Commonwealth Senate Legal and Constitutional Committee in a report released on 25 February 2016 recommended the introduction by States of a criminal offence directed at this behaviour.

The Legislative Council Standing Committee on Law and Justice released a report in March 2016 entitled “Remedies for the serious invasion of privacy in New South Wales”. The report was restricted to civil remedies but did suggest that the State Government consider the Senate committee’s recommendations. The former Attorney General eventually released a discussion paper in September last year. Public submissions closed in October 2016. The Opposition thought the Government was unduly delaying taking action on the issue and the member for Liverpool, the shadow Attorney General in the Legislative Assembly, placed a question on notice on 9 May asking what legislative action was proposed. I do not know whether that was the catalyst for the Attorney General announcing new laws on 21 May in a Sunday newspaper.

I also commend the committee for its work and for producing unanimous recommendations but the inquiry did take a bit of pushing and shoving to get off the ground. I remember my colleague, the Hon. Mick Veitch, had read some articles in the newspapers and was most concerned about the phenomenon of what was called revenge porn. He said to me, “It does not seem right and we should do something about it.” He placed a motion on the notice paper where it languished for quite some time although it was the subject of discussion between various members and parties in this place, which I will not go into in detail. But it did take some insistence on the part of the Opposition to create a situation where eventually this Chamber unanimously adopted the referral. I pay tribute to the concern and foresight of the Hon. Mick Veitch for putting forward a motion to deal with this issue and also to all members for eventually embracing the need for the inquiry. This matter transcends parties and geography and even the most casual observer would recognise that there is a definite problem that needs to be addressed.

The Hon. Mick Veitch and I did some research and we could find only two cases in Australia that dealt with the phenomenon in very different ways, neither of which was terribly satisfactory. Whether the criminal law is the only way or the best way in which to address the phenomenon remains to be seen. In the Legislative Assembly the Opposition proposed a bill that sought to implement the recommendations of the committee’s report in a civil way, particularly the civil take-down orders to be reposed in the Office of the Privacy Commissioner, and I have given notice of that bill in this place. I look forward to the same cross-party consensus for the need for action overwhelming us in this Chamber as it is in relation to this bill now before the House.

It seems to the Opposition the most problematic area concerning the sharing of intimate images is the practice by children and young persons of sexting, the consensual creation and sharing of sexually explicit images or messages. The submission on the discussion paper by the Advocate for Children and Young People quotes research to show that consensual sexting is commonplace among young people and children. The research quoted said that of those aged 13 to 15 years, 38 per cent had sent a sexual picture or video and 62 per cent had received one. Of those aged 16 to 18, 50 per cent had sent one and 70 per cent had received one. Of those aged 19 and older, a quite staggering 59 per cent had sent one and 68 per cent had received one.

A black letter law approach to this part of the issue in this debate is to say that because such sexting is consensual, it is not caught by this bill; but it is more complicated than that. If the recipient of a sexting image shows it to someone else without consent, then that certainly is going to be caught by the legislation before this House. Additionally, child abuse material offences continue to apply to consensual sexting. In turn, that might have had implications for sex offenders registration and Working with Children checks, but we understand that the Department of Justice is conducting a review of child sexual assault laws presently and we assume that that review arose from the recommendations of the Joint Select Committee on Sentencing of Child Sexual Assault Offenders, which was chaired by Troy Grant and of which the shadow Attorney, Mr Lynch, was a member. We understand that sexting was considered in that review. There is clearly an intersection between this bill and the matters being considered by that review.

Several new criminal offences are created by the bill. It is appropriate to note as recommended by the Bar Association that these are new offences and not simply amendments of the provisions of existing laws, such as sections 91K and 91L of the Crimes Act. New section 91P provides that a person who intentionally records an intimate image of another person without that person’s consent, or being reckless as to whether the person consented, is guilty of an offence. New section 91Q provides that a person who intentionally distributes an intimate image of another without that person’s consent or being reckless as to consent, is also guilty of an offence.

New section 91R criminalises the behaviour of threatening to record or distribute an intimate image. The penalties for all of these offences are 100 penalty units or imprisonment for three years, or both. These are indictable offences. The amendment made by this bill to the Criminal Procedure Act also makes these four offences table 2 offences. This is consistent with the submissions from the Office of the Director of Public Prosecutions and also the Legal Aid Commission. It means that they can be dealt with summarily, unless the prosecution or defence objects. The maximum penalty in such cases is two years. Making them indictable avoids time limitation problems that might otherwise arise, a point I note that the Privacy Commissioner mentioned in her submission.

All of these offences are subject to a proviso that the prosecution of a person under 16 years of age cannot be commenced without the approval of the Director of Public Prosecutions. This reflects how these laws intersect with the behaviour of children and young people. Once upon a time, this would probably have been a provision that prosecution not occur without the Attorney General’s consent. Indeed, that proposal was made in a submission by Kingsford Legal Centre. As a matter of practicality, those times have probably passed and in any case, the provision about the Director of Public Prosecutions is probably a preferable option to having consent resting with the Attorney General, who is, of course, a politician and a member of Cabinet, not only the first law officer of the State. As I understand it, successive Attorneys General have delegated such functions under other legislation to the Director of Public Prosecutions in any event.

New section 91S allows a court to order a defendant to take reasonable actions to remove, retract, recover, delete or destroy any intimate image recorded or distributed. It is important to note what this does and what it does not do. It operates only upon conviction, so no pre-conviction take-down order can be made—and we think that is far too late. It is only directed at the defendant, not at any other body or organisation or person. Failure to comply with the order is a criminal offence. The maximum penalty is 50 penalty units or imprisonment for two years or both and that is a summary offence. Comparatively complex definitions are provided in the bill. In the circumstances, that makes sense. “Intimate image” is defined in a way that is based upon the terms “private parts” and “engaged in a private act”; and they are, in turn, defined with some precision.

I note the Attorney General in the other place in his reply dealt with the issue of the take-down orders and said that in the context of a criminal statute which is proposed, the limitation was appropriate, but what that really does is to underscore that whatever the benefits of this legislation, the effective redress for a victim of this behaviour is not some criminal prosecution months or perhaps even some years after the event, but very soon after he—or more usually she—becomes aware and there is an effective redress through the power to take down the images swiftly, and that is what is not provided for in the bill, probably because it cannot be, given the nature of the bill. But it is a call to arms to all of us in this Chamber to not let that issue rest, because I think what we are all about here is justice for people who are the victims of this terrible behaviour and effective justice is to make the victimisation, the offending, end, and as long as the non-consensual intimate images are at large, the victim continues to be attacked by any offender. We must return to that and we should do so swiftly. As I indicated earlier, that mechanism is before this Chamber—the power to remedy that issue is in our hands and we can do it swiftly if the bill progresses.

“Intimate image” is also defined to mean an image that has been altered to appear to show a person’s private parts or a person engaged in a private act in circumstances in which a reasonable person would reasonably expect to be afforded privacy; and that is an important thing because one of the other victimisations is people’s faces being grafted onto images of other persons and made to look as if they are engaged in that activity, which is completely unacceptable.

New section 91O has detailed provisions as to the meaning of consent and, once again, that seems to be entirely sensible in this legislation. New section 91T provides a number of exceptions to offences under section 91P and section 91Q. They include if it was done for a genuine medical or scientific purpose; if it was done by a law enforcement officer for a genuine law enforcement purpose; if it was done for the purpose of legal proceedings; and if a reasonable person would have regarded the conduct as acceptable, bearing in mind a number of factors.

It is an interesting provision and seems, in relation to the latter part, to adopt the reasoning of the submission of Children’s Court President Judge Peter Johnstone, who argued against the use of a community standards component in the defence such as exists in Victoria. He argued that this was too vague a description and it might be difficult for a judicial officer to be sure of its meaning. The notion of reasonableness, as provided in this bill, is one with which judicial officers are quite familiar. That might not be quite so with the term “acceptable”, which is also in the bill. I note that the Attorney General in the other place, in his reply speech, explicitly acknowledged that the legislation adopted the submission of Judge Peter Johnstone. I think that is important in terms of the way in which this legislation may be applied and construed by the courts into the future.

Turning specifically to the submissions on the discussion paper, the Attorney General in the other place was invited to address two issues in reply. The first related to the proposal by the Director of Public Prosecutions that the penalty for the offences be five years maximum imprisonment, consistent with the provisions of section 13 of the Crimes (Domestic and Personal Violence) Act 2007. That was because it was appropriate that there be an explanation of why the three years maximum penalty was adopted in this bill rather than the five years maximum that the Director of Public Prosecutions proposed. In reply, the Attorney General in the other place indicated that consideration was given to like provisions in Victoria, where the punishment was two years and in South Australia where the punishment was two years or four years if the victim was under 17. It was thought here that the provisions of section 13 of the Crimes (Domestic and Personal Violence) Act 2007 were of a higher level of culpability than the offending caught by this Act, such that the lower penalty of three years rather than five years was appropriate.

I understand the reasoning but we are not necessarily convinced that it is right and we think it should be reviewed within a reasonable period of time. The second issue about which the Attorney General was asked to respond came from the submission by Legal Aid New South Wales, and other submissions, that the prescribed orders for apprehended violence orders be reviewed to include a provision that prohibits the threatened or actual distribution of intimate images without consent. It is my understanding that the Attorney General indicated that that would be reviewed. It would be good if that could be confirmed; it not we will pursue it in another way.

As we have indicated, the troublesome part of the bill is the inadequate regime for offending images to be removed. New section 91S limits rectification to orders only after conviction. However, although this is an important measure, it will not give justice to victims because of the very long time lapses involved in criminal prosecutions. If the Government does not revisit this, we will do it. I note the support for the approach recommended by the Standing Committee on Law and Justice, and embraced by the Opposition, in the submission from the Kingsford Legal Centre and the Law Society of New South Wales—not a radical bunch of leftists. This is a more expeditious, simple and effective way of dealing with these sorts of images being uploaded and distributed. A civil regime of the kind envisaged in the Opposition’s bill would work neatly in tandem with this criminal statute. With those observations, as I indicated at the outset, we will not be opposing this legislation and hope that it has a swift passage.