Committee
Resumed from an earlier stage of the sitting. The Deputy Chair of Committees (Hon Dr Steve Thomas) in the chair; Hon Sue Ellery (Leader of the House) in charge of the bill.
Clause 4: Chapter XXVA inserted —
Committee was interrupted after the clause had been partly considered.
[Speeches and comments from various members]
Hon ALISON XAMON: I listened intently to Hon Simon O’Brien’s contribution and I thought some really pertinent points were made. One of the things that it particularly highlighted—I think this has also been illustrated through the course of the discussion we have had in the Committee of the Whole House over the last several hours—is that there is a risk in the way the legislation is drafted in that there could be unforeseen consequences. There is no question that this chamber is of one mind in supporting the stated policy intent behind this legislation, and that is that when an intimate image has been taken of someone who was not intending that it be subject to broader distribution, but that subsequently happens, the person who has distributed that image should be made liable for that and it should be an offence. Indeed, I once again support the provisions in the legislation that enable very swift recourse by the victim of the distributed image being able to ensure that measures can be taken to have that immediately rectified. It will be a concern if we find that even one parent who has circulated baby photos, for example, is subject to the provisions of this legislation. It is absolutely unacceptable that if a parent innocently circulates innocent photos they should have to wait until they get to court to be able to clear their name. Likewise, I have now raised concerns about the possibility that people who are subject to unwelcome intimate images and who then attempt to address the matter may find themselves subject to legal proceedings. An example that I think is very common is when someone who receives an unwelcome image may decide to then subsequently forward it on to the offending person’s mother and say, “Look at what you’ve raised; you might want to bring your child into line.” I think that would be a pretty sensible way to address it, but would still be in violation of the legislation as constructed and I think would be contrary to the policy intent of this Criminal Law Amendment (Intimate Images) Bill. We now have question marks over the level of discretion that can be raised around whether a picture taken in a public place would invite the protections of this legislation. This raises the fact we are becoming very reliant on police discretion in order to determine that the stated policy intent of the bill is upheld, that public standards are not offended and that we ensure that people who otherwise should not be charged are not charged. Is any work being undertaken or is there an intention to do any work in the creation of prosecutorial guidelines for police?
Hon SUE ELLERY: I do not have advisers from police at the table with me, but I am advised that we are not aware of whether prosecutorial guidelines are being developed. However, it is the case that whenever a new offence regime is introduced, police go through the process of training and establishing an investigative framework. It is likely that they will be considering a prosecutorial framework but I am not in a position to answer that tonight. I am happy to take it on notice and speak to the Minister for Police to raise it with the Commissioner of Police. I cannot give the member an answer from the table tonight.
Hon NICK GOIRAN: The debate that has been taking place today has conveniently moved to proposed section 221BD, “Distribution of intimate image”. Can the minister inform the chamber what scientific purposes justify the distribution of intimate images without consent?
Hon SUE ELLERY: An example relating to genuine scientific purpose might be when the lead researcher in a clinical trial for a new genital herpes treatment takes a series of close-up before-and-after photos to gauge the effectiveness of the treatment. Those images are then made available on a shared drive that is accessible only to the other members of the research team. In agreeing to participate in the trial, the patient consented to the photographs being taken but was not specifically asked to consent to the images being made available on the shared drive.
Hon ALISON XAMON: In response to that matter, I can actually foresee scenarios whereby even though we are only talking about close-ups of genitalia, there may be instances in which people can nevertheless be identified. I am thinking, for example, of people who choose to have their genitalia tattooed, sometimes with quite specific tattoos. In situations in which somebody has not given consent and there may be a scenario whereby potentially they could be identified through particular characteristics, I was wondering whether there would be any recourse if they were to become aware that their genitals had been circulated for all to see.
[Speeches and comments from various members]
Progress reported and leave granted to sit again, on motion by Hon Sue Ellery (Leader of the House).