CRIMINAL LAW AMENDMENT (INTIMATE IMAGES) BILL 2018

Committee

Resumed from 6 November. The Deputy Chair of Committees (Hon Dr Steve Thomas) in the chair; Hon Sue Ellery (Leader of the House) in charge of the bill.

[Speeches and comments from various members]

Hon ALISON XAMON: I rise to indicate that I have some sympathy for the amendment that has been put forward by Hon Michael Mischin. I am still not quite persuaded either way about the best way to move forward. On the one hand, I am very concerned that the proposed amendment could water down the policy effect of this legislation, which is to change community attitudes and behaviours around the circulation of intimate images and to set a very clear and unequivocal line in the sand that tells people that the circulation of such images without consent is unacceptable and is in breach of what we consider to be appropriate societal standards. On the other hand, I remain genuinely concerned that innocent people may get caught up in this. There has been a fair bit of discussion around the legitimate concern, I think, of parents, grandparents and family members who lovingly circulate quite innocent images of their loved children that do not breach the standards of child pornography, which we already understand. We are talking about very innocent pictures in which there may be some degree of quite innocent nudity that no sound person would find offensive. I recognise that it is unlikely that those situations will come to the court’s attention.

I want to get a bit more information in a moment about the nature of the charging notes that have been referred to. We have tried to get information from the briefings, but we have not been able to get more detail about them. I return to a concern I raised in my second reading contribution—that is, the sort of defences that will be made available to people who circulate intimate images only as a means to stop harassing and intimidating behaviour. I am not convinced that the current defences in the act are sufficient to protect people who forward intimate images—they can often be quite crass images—simply because they have had enough and are sick of receiving them and being harassed and intimidated, and do so as a form of public shaming. I am concerned that the amendment before us is potentially too broad. In its current wording, I think it would make prosecution quite difficult as we try to change community attitudes and community behaviours and send a very clear message from the courts that circulation of private images without consent is unacceptable conduct. I ask the minister for more information about the nature of the charging notes that keep getting referred to. I am aware that it has been agreed that prosecutorial guidelines will be forthcoming. That is good because we should always have prosecutorial guidelines, but first I would like to have a bit more information about the nature of the charging note. I wonder whether the minister has any comments on my concerns about the circulation of images for the purposes of trying to stop intimidation and harassment?

[Speeches and comments from various members]

Hon ALISON XAMON: I rise to comment and respond to Hon Michael Mischin’s contribution just then. Of course, Hon Michael Mischin is correct on a number of fronts. He is correct in rightly identifying that the particular class of person that I have raised concerns about could potentially be prosecuted under the current wording of this legislation. Also, I say that he is correct in terms of our concerns that to date it has been very difficult for members in opposition parties to ascertain what are genuine deal-breakers and what are simply a reluctance to engage in amendments to legislation just for the sake of it.

Having said that, I have thought quite long and hard about this particular amendment proposed by Hon Michael Mischin. As I have said, I recognise that there is significant merit in why it has been put forward. The reason I will not be supporting the amendment that has been proposed is that I am concerned that as it is currently drafted, it almost provides too much defence, to the point that I am concerned that it will undermine part of the policy intent of this legislation—that is, to try to address cultural reform around the distribution of intimate images and the subsequent damage that that causes to people’s lives. The review clause that we will be debating shortly will, hopefully, become a quite critical part of assessing whether the legislation as it may or may not pass goes too far or whether it ends up having a tangible effect in addressing inappropriate and, in fact, sometimes downright dangerous conduct by people who circulate these images. However, ultimately it is a balancing act, and that is the issue that we have to try to grapple with within this place.

I want to stress again that I do not believe that the arguments that Hon Michael Mischin has put forward are wrong. The issue is around the tension between how we ensure that those people of whom I think this house has a shared understanding are never captured by the provisions of this legislation, and having robust legislation that positively contributes to societal reform.

Division

Amendment put and a division taken, the Deputy Chair (Hon Matthew Swinbourn) casting his vote with the noes, with the following result —

Ayes (14)

Noes (15)

Amendment thus negatived.

[Speeches and comments from various members]

Hon ALISON XAMON: I indicate that the Greens also support this proposed amendment. I think it is actually better than my original amendment, although it is largely in the same terms. Considering the issues that arose during the course of the second reading debate, an earlier review would be beneficial.

Amendment put and passed.
Clause, as amended, put and passed. Clauses 5 to 14 put and passed.
Title put and passed.

Report

Bill reported, with an amendment, and, by leave, the report adopted.

As to Third Reading — Standing Orders Suspension — Motion

On motion without notice by Hon Sue Ellery (Leader of the House), resolved with an absolute majority — That so much of standing orders be suspended so as to enable the bill to be read a third time forthwith.

Third Reading

Bill read a third time, on motion by Hon Sue Ellery (Leader of the House), and returned to the Assembly with an amendment.

 

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