CRIMINAL LAW AMENDMENT (INTIMATE IMAGES) BILL 2018

Second Reading

Resumed from 11 October.

[Speeches and comments from various members]

HON ALISON XAMON (North Metropolitan) [2.56 pm]: I rise as the lead speaker for the Greens on the Criminal Law Amendment (Intimate Images) Bill 2018 and indicate from the outset that the Greens will support the passage of this legislation. However, like the speaker before me, the Greens have a lot of questions about this legislation, particularly wanting to clarify that we do not end up with unintended consequences as a result of bringing in these new laws. It is an important legislative reform to look at. The world we live in these days is very different from the world in the past and it is rapidly changing. In fact, it was only 30 years ago that the internet did not even exist; 15 years ago, we did not even have Facebook; 10 years ago, there was no Instagram; and five years ago, we did not have Tinder. Yet, in that relatively short period, here in 2018, six in 10 Australians use Facebook and, of them, one in two Australians use Facebook on a daily basis; one in two Australians use YouTube; one in three Australians use Instagram; and one in four Australians use Snapchat and of those, 4.5 million people in Australia use Snapchat daily. I cannot even imagine what the next decade will bring in access to technology and in how people will be using social media because things are changing so rapidly and so often.

The proposed legislation before us is needed precisely because of these developments in technology. Technology has obviously enabled us to quickly and cheaply send high-quality images to multiple people and there are significant positives in that. We had some discussion in my office about the best benefits. One of my staff members is of the view that circulation of videos of baby goats has been probably the greatest advantage of technology. I, for one, prefer movies of dogs. There was considerable debate around it within my office. Obviously, on a more serious note, advances in technology have also brought significant risks. I am sure I will not be the first member in this place to indicate my relief that I managed to go through my teens and early 20s in the days before social media. I do wonder how much that might have haunted me now that I am in my 40s. The bill before us addresses a significant gap in the protections that have been available to people in Western Australia. The Criminal Law Amendment (Intimate Images) Bill 2018 seeks to address the non-consensual distribution of intimate images. I note there is a concerted effort to use this terminology, rather than referring to “revenge porn”, as has been common in the past. I think the term “abuse” more appropriately captures the seriousness of the offence, which we have seen can have long-term impacts and implications on people’s lives, because, put very simply, having intimate images shared without consent is a form of abuse. It is about time the law is able to recognise that. I note the researchers Dr Nicola Henry, Dr Anastasia Power and Dr Asher Flynn have commented that for many victims, discovering that their images have been made public constitutes a violation of their sexual autonomy and dignity. It is also not revenge porn, because intimate image abuse does not have to be motivated by revenge, so it is a bit of a misnomer to talk about the distribution of intimate images as being revenge porn. We know the distribution of images can be motivated by many other things. It can be motivated by a desire to control, to intimidate, for sexual gratification, for monetary gain, to build social status or, quite simply, just to try to cause emotional harm and humiliation. Furthermore, use of the word “revenge” implies that somehow the behaviours were provoked, and far too often the behaviour of the victim is called into question. Therefore, we really need to get away from suggesting that victims are in any way responsible for the offence being perpetrated against them.

Unfortunately, this is not a marginal issue. The statistics around these types of offences are staggering. According to a report last year, one in five Australians has experienced image-based abuse. Some people are more vulnerable to abuse, and image-based abuse is no different in that regard. For example, the same research found that one in two Australians with a disability reported being a victim of image-based abuse. I want members to think about that— one in two people with a disability. The research published last year indicated that 53 per cent of participants with a disability reported that an intimate image had been taken without their permission, 42 per cent reported that such an image had been distributed and 41 per cent said that they had experienced threats relating to the distribution of intimate images. That is a terrifying piece of research. This report also found that one in two Indigenous Australians had experienced image-based abuse and also that image-based abuse victimisation is higher for members of the lesbian, gay, bisexual, transgender, intersex community. It is also higher for young people aged 16 to 29, although I note that the research I am referring to did not include people under 16. I expect that group is likely to be at increasing risk.

There is a gendered nature to image-based abuse. Although women are less likely to share sexual self-images in the first place, they are just as likely as men to be victims of the misuse of those images. That means that perpetrators are most likely to be male and known to the victim. Intimate image abuse can be a particular issue for women who are victims of domestic violence, who often also face technology-facilitated stalking and abuse. The image may have been taken by the victim; however, many victims have had images—we are talking about photos or videos—taken without their permission and sometimes even without their knowledge. Research indicates that one in 10 people who say they have never consensually sent or been pressured to send someone else a sexual self-image were still victims of image-based abuse.

I understand that there is widespread support for legislation of this type. I note that it has been estimated that 80 per cent of Australians agree that it should be a crime to share sexual or nude images without permission. This is as it should be. Image-based abuse is a horrific crime. Not only is it a serious invasion of privacy; it can also cause long-term psychological damage to victims. In fact, we know of instances in which victims have subsequently taken their lives. It is crucial that victims have recourse under the law. In that sense, the law has been playing a very slow catch-up in this space.

I would like to make a few comments about victim blaming, which, unfortunately, is particularly pervasive in this space. It is simply not okay for any of our responses to intimate image abuse to be that the victim should not have taken the picture in the first place. That is classic victim blaming. Victim-blaming attitudes are too common and they need to be challenged and called out whenever they occur. There was some commentary in the other place around this issue. Let us be very clear: the blame and condemnation for intimate image abuse should be 100 per cent directed towards the perpetrators—those who knowingly distribute those images. We all need to ensure that we are working together to create a culture that supports victims and is calling out the perpetrators.

Importantly, this bill does not criminalise the consensual sharing of images between two consenting adults and nor should it. Instead, the bill before us amends the Criminal Code by inserting a new chapter that makes distribution of intimate images an offence in certain circumstances. It provides a maximum penalty of three years’ imprisonment if the matter is dealt with on indictment and a maximum penalty of 18 months’ imprisonment or an $18 000 fine if the matter is dealt with summarily. It also amends provisions relating to “threat” to include threats to distribute images, and the usual penalty for threat will apply. If a person is charged with either the new offence or the threat offence, the bill grants courts the power to order the accused to rectify by taking reasonable actions to remove or destroy the alleged image. Noncompliance is itself an offence, with a maximum penalty of 12 months’ imprisonment or a fine of $12 000. I think this is a really important provision to include in the legislation. I am not aware of any protocol of prosecutors to routinely seek a rectification order at the first court mention if the accused concedes that there is an image, but does not necessarily admit the offence. I am adamant that the earlier a rectification order is made, the better it will be for the victim. A question I have for the minister is whether such a protocol is likely to be implemented; and, if not, whether that could be brought to the attention of the Attorney General. I think the capacity to rectify the damage as soon as possible is a really important power that is being incorporated, but we need to ensure that it is an automatic matter to be addressed as soon as possible and as a matter of course.

“Intimate image” means any still or moving image shown in circumstances in which the person depicted would reasonably expect privacy. The bill specifically refers to a person’s naked or underwear-clad genital or anal area, or breasts, if the person is female or identifies as female, and if the person is in a state of undress, using the toilet, showering, bathing or doing a sexual act. It also includes any form of image that has been made or changed to make it appear to show any of those things, such as transposing a person’s face onto a porn image.

An intimate image, whether the depicted person knows that it has been created, is covered by the bill. That is to deal with offences such as upskirting, which is a pretty grubby offence, particularly when people walk around with cameras that are usually concealed and will actually film up skirts, or whether it is being distributed such as through hacking.

It also includes lewd cartoons or caricatures, and that is subject to the defences below. On that note, members, I was hoping to table a cartoon that was circulated very recently in response to the dispute around the use of the Sydney Opera House to project advertising. For me it raised questions about the scope of this bill. It is a rather lewd caricature of Alan Jones, and I wish to table it because I am concerned about whether this would be deemed to be an offence under the Criminal Law Amendment (Intimate Images) Bill 2018. It would be useful to determine the degree to which this legislation intends to capture that. It has been not only published, but also circulated. I wondered whether the act of me bringing it to the attention of members or my staff would be captured under the bill. I seek leave to table this published cartoon to be able to elaborate further.

Leave granted. [See paper 2063.]

Hon ALISON XAMON: I will further refer to that cartoon when we go into Committee of the Whole House, because I think it would be useful to get an idea of the intended parameters of the legislation.

“Distribution” is broadly defined. It includes to distribute or access by any means or agreement or by an arrangement to do so, such as traditional paper-based distribution and technology-based distribution. I note that it must be an image of another person—so, for example, not the distributor emailing a selfie to a laptop. If someone chooses to take lewd images of themselves and send it to themselves, that would not be covered. It relates only to non-consensual distribution to third parties; I have already mentioned that. It is not intended to cover the person sending it or the person depicted, such as during consensual sexting.

Sections 23A, 23B and 24 of the Criminal Code provide that a person is not criminally responsible for something that happens independently of the exercise of a person’s will, such as an unintended automatic distribution by computer, or by accident, such as clumsily pressing “send” instead of “delete”, or by mistake of fact, such as if it is claimed that the person intended to press another button, not “send”. That seems to be a pretty easy way to try to argue that someone had not intended to distribute an image. I would like some more information on what the burden will be in being able to demonstrate that it was indeed done by error or mistake. Of course, in many circumstances that could be a very legitimate defence, but I certainly hope that it will not be so broad as to ensure that people are able to, effectively, get out of being held responsible for the distribution of images when they really otherwise should not be able to.

Hon Michael Mischin asked lots of questions about consent. For the purposes of the bill, we are talking about a person giving free and voluntary consent to the distribution of an intimate image of themselves. In this day and age, it is unfortunate that we have to really spell out what is and is not consent, but I do not necessarily have a problem with a piece of legislation making it very, very clear that simply saying yes does not constitute consent and illustrating why that is the case. It seems that some people are challenged by this idea of what constitutes genuine consent—I am not suggesting the previous speaker is—so it is useful to make it unequivocally clear in the legislation.

A person’s consent to the distribution of an intimate image of themselves is not taken to mean that they also consent to it or any other intimate image of themselves being distributed on another occasion, or to another person for any other distribution. That gets back to the victim blaming that I was speaking about earlier. Simply the fact that a person agrees to the taking of an image does not mean that it is okay to forward it to anybody else. Really importantly, a person under 16 years of age is deemed to never be able to give consent to the distribution of an intimate image. That is exactly as it should be. Also, circumstances of non-consent are not limited to just those circumstances. It will be for the prosecution to prove non-consent. If the accused believed that the victim consented, they can rely on the general defence of honest and reasonable mistake of fact. Unlike sexual assault, if consent is given and the image is distributed, that is the end of the matter—consent cannot then be withdrawn. All the person can do is try to have the image taken down, and they can do that with the help of the eSafety Commissioner, if needed.

Whether harm was intended by the distributor or suffered by the person depicted is not relevant. It all turns on the issue of non-consensual conduct. That is an appropriate line to draw. The non-consensual sharing of intimate images has the potential to do great and unacceptable harm to people, whether or not that harm was intended. It is important for the legislation to reflect that.

I turn now to the issue of sex offender registration and reporting. This bill will not add to the list of offences in the Community Protection (Offender Reporting) Act 2004; however, as for any offence under section 13 of the act, if a person is convicted and the court is satisfied that the offender poses a risk to the lives or the sexual safety of one or more persons or persons generally, the court can order that the offender comply with the act’s reporting obligations. Serious offences involving children are more likely to be prosecuted under child exploitation material provisions than this provision. Of course, convictions under child exploitation material provisions attract sex offender registration, as well as a higher maximum penalty.

The bill will also amend the Restraining Orders Act by rewording the relevant parts of the definition of “family violence” and the restraints that a court can impose via a family violence order to align with the wording used for the new Criminal Code offence. The bill will amend the Working with Children (Criminal Record Checking) Act by making a new Criminal Code offence. If the image is of a child, it will be a class 2 offence, so they will not be able to work with children unless exceptional circumstances apply. This is the same class as for child exploitation material offences.

I note that the bill has no impact on any additional powers that a court may have under the Criminal Property Confiscation Act or section 731 of the Criminal Code, which relates to forfeiture of property used to commit and offence provisions. I think that that is probably a reasonable judgement call.

One key concern I have, which was certainly raised in the briefings and which I think we need to get clearly on the record, is the impact on children and young people of these provisions. I note that in consultation to develop this bill, the Commissioner for Children and Young People was advised and consulted as to the early stages of the bill, which is appropriate. I am really pleased to hear that that process occurred; that is a good use of that important statutory office. I also understand that the office of the Commissioner for Children and Young People reported that it sees that there will be no adverse impacts on children. It confirmed the advice to our office, which we had also received at the briefing, that for this sort of behaviour the police tend to think carefully about whether to charge a juvenile, and that often they talk to the accused and often involve parents and talk to the parties involved instead of laying charges. That is one issue that the Greens were concerned about. We want to make sure that discretion is appropriately applied so that when children have simply been stupid, criminal charges will not necessarily be laid in particular circumstances when it is not particularly appropriate. That is important because the bill applies to all people, and children and young people are included within these particular offences.

The offence created by the bill will not apply to distribution, to the distributor or to the person depicted. Again I point out that a person under 16 cannot consent to distribution of their intimate images anyway.

I note that the Department of Education, the Department of Justice, Legal Aid Western Australia and the Ministerial Youth Advisory Council are apparently working on an education campaign for students and young people. I understand from the briefing that it is intended that this is to be integrated with existing cyber safety and legal education. I maintain that it is very important that the same information is provided in non-government schools and in government schools. I understand that that is the government’s intention, but I ask that the minister confirm whether that is indeed what will happen. I also note that not all young people are at school. It is important that those young people, too, have access to the same information. Some young people are particularly vulnerable to these particular offences. I understand that ways of reaching out to this cohort are being considered and will be developed. Again I ask the minister to confirm that that is happening and explain what that will look like potentially. It is also very important that this information is made available to parents, who are well-placed to reinforce this with their children. It is a whole new world we have to guide our children in and we need to make sure that people right across the community are well-informed about the impact of these laws.

I note that if a young person commits this new offence—I learnt this from the second reading speech—the usual protections and diversions under the Young Offenders Act will apply, including options to caution or referral to a juvenile justice team. Although that is appropriate, I note the recent Auditor General’s report “Diverting Young People Away From Court”, which indicates that police choose to divert young people from court in less than half of eligible cases, and that this has been the case for at least the last five years. The report further identifies that police do not record their reasons for choosing not to divert; they are not guided or supported to prioritise diversion; and that even if they do divert, only a small proportion of diverted young people get the sort of help that they likely need to prevent re-offending. This is a very concerning situation. Members would be aware that I am quite concerned about the status of youth justice within this state, so I think that it is vitally important that at the core of the way we address offending by children and young people, we address rehabilitation and the underlying causes of youth offending behaviour. Until then, I am concerned that we will continue to add to the ongoing pipeline of young people who go from the youth justice system to the overcrowded prison system. That being said, I was encouraged to hear at the briefing that for existing offences that cover similar behaviour to this new offence, police will be using diversion appropriately.

Diversion of young people from the justice system is particularly important given the potential impact a charge or a conviction under this legislation will have on a person’s future work and travel opportunities. A young person who is charged under this legislation may, as a result, fail to get a working with children check card, which of course will impact not only on their ability to gain employment, but also on future recreational and volunteering opportunities. One thing we know about being a teenager is that teenagers make mistakes—I most certainly did. They often do not fully understand the consequences of their behaviour or, in fact, may not even care. Teenagers’ brains are wired for risk-taking. There is a lot of neurological research on why that is the case, but, unfortunately, social media has made it really easy for people to take and send pictures impulsively. Although that does not minimise the seriousness of the act, it does mean that we have to think very carefully about the most appropriate responses when we are dealing with children and young people. I ask the minister to confirm that police will use diversion for young people under this new offence when appropriate, and that they will record their reasons for not using diversion. I also ask the minister to confirm that the diversion methods that are used have been shown to be effective in reducing re-offending.

I strongly believe that the impact of this bill on children and young people should be monitored and be the subject of a formal statutory review. The world is changing, as I have said, and many people share photos online. A core part of young people’s daily social interaction involves sharing photos online, so we need to regularly review legislation so that we can ensure that we achieve an appropriate balance between protecting the community and responding in a way that we do not unfairly—if that were the case—impact on a person’s ability to seek employment and travel effectively for the rest of their lives. It is important that we do not create offences that are too broad and that we do not convict people whose actions are outside the intended scope.

Another interesting aspect of the legislation we need to consider is its potential impact on people who shame individuals who have sent them unsolicited intimate images. Mr Deputy President, I did seek the President’s guidance about how I should appropriately refer to this within Parliament so as to not be unparliamentary. I am referring to the form of sexual harassment that can take place in the digital age when a sexual harasser will send unwelcome sexually explicit images of themselves to their victims. A colloquial phrase is used to describe this but, effectively, I am referring to when men take pictures of their genitals and, unsolicited, send them to another person, usually a woman. I do not know whether any members here have been the recipients of such images. Unfortunately, I have.

The DEPUTY PRESIDENT: Order! Hon Robin Chapple knows not to pass between the member speaking and the Chair.

Hon Robin Chapple interjected.
 

The DEPUTY PRESIDENT: Order! Hon Robin Chapple also knows not to address the Chair when he is not in  his place. Hon Alison Xamon will continue her remarks before we go for strike three!

Hon ALISON XAMON: Thank you, Mr Deputy President.

I want to ask some questions about what this legislation might mean for someone like me who might receive such an unwelcome image. Sometimes these images are accompanied by a so-called invitation, but more often they are accompanied by a threat of some form of sexual violence.

The Criminal Law Amendment (Intimate Images) Bill contains exclusions permitting the distribution of an image by the victim for purposes of law enforcement or administration. That might be appropriate because I may be the unwelcome recipient of a particular picture and I subsequently send it to the police, and that is fine. However, the bill does not appear to permit the victim recipient to share or distribute the images for any other purpose. It has become a very common technique, particularly for women who have been the recipient of such pictures, to further distribute these images to attempt to humiliate the person who has sent the unwelcome image. This might be for the purpose of sending it to family or friends. I might choose to send it to my husband to say, “Can you believe I just received this?” This would be to seek support. Effectively, I may have sent it on without the consent of the person who sent me that offending image. I am wondering whether I will be breaching the legislation. Am I likely to be the recipient of criminal charges?

What has become increasingly common, particularly by people who become the endless recipients of these pictures, is to publicly shame the harasser, sometimes through republication on a website or on social media. That tactic is increasingly applied, particularly when women in this situation have become fed up with constantly receiving these images. If my daughter were receiving these images, I would want to do everything possible to shame the person who was sending them. But, frankly, I would also want to shame them if they sent them to me. This has become a typical response and it is the kind of response to sexual harassment that we have seen increasing, particularly in light of the Me Too movement. I am concerned that these people, me or anyone else I care about— in fact, anyone in this chamber—may end up being considered to be an offender when I believe we have been offended against. It seems that in those cases, under this bill, the victim must rely on police choosing not to prosecute them for the distribution or, if prosecution is brought, the defence that a reasonable person would consider the distribution to be acceptable. I want to know whether it is that latter bit that is likely to be considered within the scope of a reasonable defence. The last thing we want is for legislation that is specifically designed to protect victims of abuse and harassment, which is welcome, important and overdue, to end up criminalising those same victims when their response has been to seek to shame their harasser. This, too, is something I strongly consider should be monitored and be subject to a formal statutory review. It may also require public awareness raising.

In relation to the defence of distribution, the bill before us provides a number of defences for the non-consensual distribution of intimate images, such as distribution for genuine scientific, educational or medical purposes. I would expect, however, in those instances consent would usually be obtained for distribution for these purposes, making the defence unnecessary. I ask the minister to provide for the record examples of the circumstances to which this defence would normally apply, because I am not aware, when those types of images are circulated, that consent is not actually required ahead of time. It is also a defence to reasonably and necessarily distribute for the purposes of legal proceedings and for media activity if no harm was intended and the distributor reasonably believed it was in the public interest. It is also a defence if a reasonable person would consider the distribution acceptable having regard to the image; the circumstances; the depicted person’s age, mental capacity, vulnerability or other relevant circumstances; the degree of impact on the person’s privacy; the relationship between the parties; and any other relevant matters. This is particularly the issue to which Hon Michael Mischin also referred—the scope to which an intended catch-all defence reflects community standards of the relevant time—for example, as was said, the usual baby-in-the-bath photos sent by one proud parent to the other. We would not expect them to attract charges in the unlikely event the police were minded to so charge. I note the onus is on the defence to prove the defence on the balance of probabilities. I note that distribution is not an offence by law enforcement agencies in their official duties in accordance with or in the performance of the person’s functions under a written law or an Australian law, or for the administration of justice. The onus is on the prosecution to prove the exception does not apply, if indeed it is raised at all.

I ask the minister to confirm for the record that the exclusion in accordance with or in the performance of a person’s functions under a written law or an Australian law includes both the following scenarios: distribution of an intimate image to the eSafety Commissioner; for example, by the parent of a depicted child or young person even if that young person has not given their consent—remembering that if the depicted person is under 16 years old, they cannot legally consent anyway—and distribution of an intimate image of a depicted student by a teacher for the purpose of reporting the incident to senior teaching staff or the appropriate government department or parents of the students involved. I say that because the legislation is quite clear when it comes to the distribution of an image between those legal and statutory appointees. But if a student raises a concern with a teacher and the teacher subsequently sends it to the principal, who then deals with it, these are people who, in good faith, are trying to deal with the issue but it is unclear whether they are, effectively, at risk for having forwarded that image on further. I would like some clarity around those intentions.

In concluding my remarks, I note that intimate image abuse is a multifaceted issue and requires initiatives beyond a purely legislative response. That includes initiatives to support victims, as well as initiatives to change the attitude of people, including young people and their parents, and the wider community. We need to ensure that this is done through education, support and restorative justice. Only by making such a comprehensive response will we be able to create the cultural changes needed to ensure that we are adequately supporting victims. We need to hold the perpetrators accountable and ultimately prevent these harms.

The Greens welcome this legislation as an important part of our response to intimate image abuse. I look forward to being able to tease out in the committee stage the further detail of this legislation to ensure that it does not have unintended consequences.

[Speeches and comments from various members]

Debate adjourned, on motion by Hon Pierre Yang.

 

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