CRIMINAL LAW AMENDMENT (INTIMATE IMAGES) BILL 2018

Committee

Resumed from 1 November. The Chair of Committees (Hon Simon O’Brien) in the chair; Hon Sue Ellery (Leader of the House) in charge of the bill.

Clause 1: Short title —

Progress was reported after the clause had been partly considered.

Hon SUE ELLERY: I am responding to an issue that Hon Alison Xamon raised when we last considered this matter. Her question was essentially whether the bill would criminalise a person who received unsolicited intimate images and then distributed those images with a view to shaming the person depicted into refraining from sending further images. A person who sends an unsolicited intimate image of themselves has likely committed the offence of using a carriage service to menace, harass or cause offence, pursuant to section 474.17 of the commonwealth Criminal Code. The maximum penalty for that offence is three years’ imprisonment. Depending on the circumstances,  the person may also commit an offence, such as stalking, under state law by using electronic communication to expose a child under 16 to indecent matter or making a threat to do something unlawful. However, the honourable member would appreciate that it would depend on the particular circumstances. The recipient of the image could also obtain a misconduct restraining order, the breach of which would be a criminal offence.

I have outlined those possible variations of laws to make the point that there are options for responding to image-based harassment that do not involve shaming the person depicted via public distribution. Image-based harassment is a serious matter and it should be reported to the police or, if relevant, appropriate school authorities. The alternative response proposed by the honourable member—essentially, that of public shaming—would likely amount to the non-consensual distribution of an intimate image for the purpose of the new offence created under the bill. It does not necessarily follow that the person would be prosecuted or convicted. First, the shamed person may be disinclined to report the matter to police, given that the episode could raise questions about their own criminal liability. Second, the police may decline to prosecute on public interest grounds. Third, if a prosecution is commenced, the defendant could seek to argue that the image in question is not an intimate image for the purpose of the offence due to the absence of a reasonable expectation of privacy. Finally, the defendant could argue that the defence provided in proposed section 221BD(3)(d)—that a reasonable person would consider distribution to be acceptable—applies. It is entirely plausible that the court would be sympathetic to such an argument, but ultimately that is a matter for the court to determine in view of the very specific circumstances of the case. In offering advice, for what it is worth, the appropriate response to image-based harassment is to report the conduct to the relevant authorities.

Hon ALISON XAMON: I thank the minister for that comprehensive response to the question. I raise some concerns around the nature of the response. I suppose my particular concern is that what has just been described is setting a very high bar in being able to demonstrate intent by the person who has sent the unsolicited and unwelcome image to a recipient. It sounds as though there needs to have been some degree of malice or threat, which of course would evoke a range of defences to someone who otherwise might feel inclined to seek solace amongst their friends or even just amongst people who might view the matter in the same way. I am concerned that that means that even though the policy of this bill, I would argue, is very sound, it will still potentially have unintended consequences for some people. I am particularly concerned when people are receiving unwelcome, unsolicited intimate images that have not been sent in order to threaten but perhaps are persistent, clumsy attempts to court. I would like to put on the record that I think that people who send these images are deeply misguided. I am yet to find a woman who finds these particular images enticing or attractive. Nevertheless, I am aware that some men in particular may be of the mistaken view that somehow a potential partner will be excited about receiving them. I suspect that is not the case. However, that does not fall within the scope of threat. One of the things that women in particular may choose to do is to circulate that said unwelcome image amongst their friends as a way of saying, “Can you believe what this is guy is doing? What is wrong with him? No wonder he does not have a girlfriend and never will.” Nevertheless, that person could find themselves the unwelcome recipient of falling foul of this law.

I suppose the question that I have relates to the degree of discretion available to the police in particular should a rebuffed man, in the buff, take umbrage at the circulation of his intimate image, particularly if he has been the subject of subsequent, probably well-earned, mockery. What discretion will the police be able to display in order to ensure that a person on the receiving end of the image is not going to find themselves, unfairly in my opinion, subject to the provisions of this legislation?

Hon SUE ELLERY: I understand the point that the honourable member is making. I suspect that if I were in receipt of such an image, I would probably be one of those women who would seek to publicly shame the person by saying, “Look what I received on my social media site” or whatever. I suspect that I would be one of those people who might fall foul. However, the point I made in the response I just gave is that there are various elements of discretion. The police do have discretion as to whether to prosecute on public interest grounds. Again, the courts, depending on the particular circumstances as well, have a discretion as to how they will treat it. It is not possible to give the member a finite answer about what would happen in circumstance X versus circumstance Y, but I understand the point that the member is making.

Hon ALISON XAMON: I thank the minister. During this debate I am hoping to get on the record confirmation from the government that this bill does not intend to capture those people who receive the unwelcome images and who subsequently resort, often in exasperation, to measures of further circulation for the express purpose of trying to dissuade the person who has sent the unwelcome image, but also, for that matter, people in general, from sending unwelcome intimate images.

Hon SUE ELLERY: The driver of the policy was not the particular social behaviour that the member is describing. It would be inaccurate to say that there are no circumstances, because it would depend entirely on the circumstances in which the person who has received unsolicited intimate images and then as a form of “shaming” recirculates that. It is not what the policy was designed for; it is not its intent. I cannot give the member a guarantee that in every single circumstance there might not be a reason that that person too fell foul of the law. It will depend entirely on the circumstances. As I outlined, there are several points at which discretion can be exercised, by both the police and the courts.

Hon ALISON XAMON: I thank the minister for that further explanation. I have some further questions about the nature of the education programs that are intended to be associated with the rollout of this legislation, and I will get to that in a moment. Is there an intention or, indeed, is it something that will be considered by government that the unintended consequences of people forwarding unwelcome intimate images for the purposes of shaming will be made more broadly known?

Hon SUE ELLERY: The essential idea behind the legislation is not to distribute intimate images without consent. The essential message is not to do it—just do not do it.

Hon Nick Goiran: Maybe don’t do it even with consent.

Hon Sue Ellery: Yes.

Hon ALISON XAMON: I have some other questions. Regarding the information program that has been referred to, can the minister confirm that it is the government’s intention to ensure that the same information will be provided to non-government schools and government schools to ensure that all young people and children are going to be made aware of the implications of both taking as well as forwarding intimate images?

Hon SUE ELLERY: Yes, it is the intention that the educational information and material be made available to all students, whichever sector they are in. Catholic Education Western Australia and the Association of Independent Schools of Western Australia, representing independent non-government schools, sit on a joint working party with the Department of Education, which has responsibility for public schools. They are part of the working group that is putting together the material. I am advised that there have been meetings with them about the establishment of a working party.

Hon ALISON XAMON: What is the proposed time frame for the likely rollout of this education program? Will it be available for the new school year?

Hon SUE ELLERY: I am advised that yes, it is intended that it will be available in the new school year, in 2019.

Hon ALISON XAMON: Of course, minister, not all young people are in school, yet this legislation has implications well beyond young people who are currently in school. Is there going to be a broader education program so that other young people will be made aware of the changes to the laws and the risks inherent in forwarding intimate images?

[Speeches and comments from various members]

Hon ALISON XAMON: This line of questioning gets to one of the core concerns about the bill and that is that although we absolutely do not want to minimise the seriousness of the implications of the act of sending on other people’s private images, we need to make sure that we do not inadvertently end up creating potentially lifelong consequences for young people who are acting foolishly and stupidly but not maliciously. It is about wanting to ensure that the police will use diversion for young people for the new offences when appropriate. Is it also the intention that the police will record the reasons why they might decide to prosecute when diversion is not the preferred option?

[Speeches and comments from various members]

Hon ALISON XAMON: I come back to the issue of diversion for young people. Can the minister confirm that the diversion methods that will be used or are intended to be used have been shown to be effective in reducing reoffending?

Hon SUE ELLERY: I am not sure I really understand the question I am being asked. In response to the earlier question, I advised that police accepted the recommendation about recording their reasons for making decisions. Regarding diversionary programs, those are the diversionary programs and the methodology behind them that is now used by juvenile justice teams. I am not aware of any particular evaluation conducted recently. If the member is, she could advise me. The juvenile justice team is well experienced in its business of attempting to divert young people who, for a range of reasons, may make an ill-considered decision and end up on the wrong side of the law as a consequence. But I do not have any information available to me now about an evaluation of the diversionary programs that they use.

Hon ALISON XAMON: I quickly go back to the issue of unwelcome intimate images that people receive and subsequently republish out of frustration or desperation. Is there any intention to ensure that police are given any level of training around the best way to support, particularly, women who have received these images? I note that in her comprehensive response to my earlier question the minister recommended that perhaps women may want to consider going to the police. The concern I have is that often when women go to the police, unless such an image is associated with an explicit threat, the police will ignore it or tell women to get over it. That is often why people take it in their own hands to respond, if you like, in a civil way by engaging in legitimate actions of public shaming. As that option is now potentially quite problematic for somebody, is there any intention to encourage police to take the receipt of these images much more seriously?

Hon SUE ELLERY: I appreciate the point that the honourable member is making. I do not have anyone from the police here, so I cannot tell the member about specific training. I can tell the member that the work being done by the police academy has significantly improved over the time that I have been in public office. I am not able to give the member any detailed information; however, I can give the member the commitment that I will personally ask the Minister for Police to raise the issue with the Commissioner of Police.

Clause put and passed.

Clause 2: Commencement —

[Speeches and comments from various members]

Clause put and passed.
Clause 3 put and passed.
Clause 4: Chapter XXVA inserted —

[Speeches and comments from various members]

Hon ALISON XAMON: Would the following scenario be captured by the provisions of this act? If, under the cover of darkness, a drunken teenage couple decide to engage in sexual congress at Cottesloe Beach, for example, and they are inadvertently photographed by their mates and the photograph is subsequently sent around, would that be in breach of these provisions or would it be fair game? Although they may have thought that they were able to undertake the activity in private, it was a public place and they may nevertheless have no recourse.

[Speeches and comments from various members]

Hon ALISON XAMON: I thank the minister. Although I certainly accept that it is impossible to outline every single scenario to which this bill may or may not apply, it will of course be important for people who might look at this legislation in the future to get some idea of the policy parameters intended. One of my concerns about the potential lack of protection, particularly for young people who may find themselves being photographed in unfortunate situations within the public realm, is that it is very often young people who engage in these activities in public spheres precisely because they do not have their own places in which to engage in these activities. It would be very concerning if they were to be subject to being photographed by a third party and found that they had no recourse to be able to stop the distribution of the images and to ensure that people who could potentially circulate those images maliciously can be brought to account.

I would like to further unpick the idea of what is reasonably deemed to be a public place. We have already talked about the complexities and what can be expected around the cover of darkness. My further question is about the old chestnut of the back of the car. If someone is in the back seat of their own vehicle, under the cover of darkness—potentially in the car park of Cottesloe Beach—would that be considered to be a public place, or would it be a scenario that could invite the provisions of this legislation?

[Speeches and comments from various members]

Hon ALISON XAMON: Picking up on the scenario that Hon Michael Mischin has already put to the chamber, can I confirm that it is not the intention of this legislation to rule out the possibility of an aggrieved party seeking recourse to have an intimate image removed and to have the person responsible for its distribution charged, or to deny that party an opportunity to have that addressed simply because that image may have originally been produced in a public arena?

[Speeches and comments from various members]

Hon ALISON XAMON: I want to confirm that for the purposes of this legislation, merely the fact that it is daylight does not preclude potential recourse for someone under this legislation. The example of various malls have been given. I would suggest that people are going to be captured by CCTV, if nothing else. I think any reasonable person would expect that to be public. For example, it may be the middle of the day and people could be on what they think is a very, very secluded beach, perhaps up north where it is nice and warm, and unbeknownst to them, somebody may be filming or taking photographs but they would potentially reasonably expect that they would be afforded some privacy. I wanted the minister to confirm for the record that merely the fact that it is daylight does not preclude the discretion being applied in the future.

[Speeches and comments from various members]

Committee interrupted, pursuant to standing orders.

 

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