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9 Jun 2016

Summary Offences (Filming and Sexting Offences) Amendment Bill

The Hon. A.L. McLACHLAN ( 16:22 :51 ): I rise to speak to the Summary Offences (Filming and Sexting Offences) Amendment Bill. I speak on behalf of my Liberal colleagues. The bill seeks to amend the Summary Offences Act 1953. The bill has been tabled to respond to the modern social practice of sexting between young people. Sexting refers to the sending of sexually explicit photographs or messages typically by mobile phones. It has also been drafted to respond to the higher instances of what has been termed ‘revenge pornography’ occurring in our community.

Revenge pornography refers to the publication of explicit material depicting someone who has not consented to that publication with the intent of causing them humiliation or embarrassment. The government asserts that instances of revenge porn are becoming more common in our society and often arise when a relationship breaks up and the injured party decides to distribute intimate images to enact revenge.

I note the Women’s Legal Service has advised that in respect of this trend, threats involving revenge pornography are common in the context of domestic violence and are often used as a form of blackmail when women attempt to leave such relationships. Under current laws, minors who take, send or receive naked or partially naked photographs, images or videos of themselves or another minor might be at risk of being charged or convicted of child pornography offences. This is because the existing definition of an invasive image excludes police from charging an accused with the offence of distribution of an invasive image where the person depicted is under the age of 16.

The rationale for this provision was so as not to intrude on the Criminal Law Consolidation Act child exploitation offences This is why, on occasions, minors have been charged under child pornography laws for offending conduct of this nature. The aim of this bill is to provide prosecuting authorities with a wider and more appropriate level of offences to deal with these types of situations. The opposition agrees that this will result in charges being laid that better reflect the gravity of the offending conduct. The opposition understands that the proposed amendments will not prohibit the police from charging a young person with a child pornography offence if that is warranted, given the circumstances of a particular case.

I now turn to the technical provisions of the bill. The bill extends the current offence of distributing an invasive image to also apply when the images depict a person under the age of 17. As mentioned previously, if a minor was depicted he or she could only be prosecuted under the child pornography legislation. The new offence of distributing an invasive image of a minor will attract a fine of up to $20,000 or imprisonment for four years. This is a higher penalty than the current penalty for an invasive image depicting an adult, which will remain as a fine of up to $10,000 or imprisonment for two years.

The bill also creates a new offence of threatening to distribute an invasive image or an image obtained from indecent filming. The offence of threatening to distribute an invasive image will apply to both minors and adults. This new threatening offence will attract a penalty of a fine of up to $10,000 or imprisonment for one year. On this point I note that on 26 May an article was published in The Advertiser about a case that is currently before the District Court. A guilty plea was entered by the defendant so I will make brief comments but no more than have been divulged in open court and the media.

This case involves a man who took invasive images of a woman on two separate occasions. He pleaded guilty to one count of indecent filming and took to Facebook to threaten the woman that she would ‘get what’s coming to her’. This case prompted the judge hearing the matter, District Court Chief Judge Muecke, to comment on the use of social media platforms which allow people to engage in ‘immoral and even illegal behaviour they would not attempt face to face’.

When I read about this case I took comfort that this bill contains a provision that will criminalise threats to distribute invasive images—sadly, this is needed in our community. I also note that the bill contains provisions that guard against the criminalisation and distribution of innocent images; for example, parents sending photographs of their baby in the bath to family members or friends. It achieves this by excluding from the definition of ‘invasive images’ those that fall within the standards of morality, decency and propriety generally accepted by reasonable adults in the community: a common-law test.

I note that the government has filed a set of technical amendments which the opposition is minded to support. The amendments have been moved to clarify that a greater penalty applies when an invasive image depicts someone under the age of 17, and to achieve consistency with the Criminal Law Consolidation Act and the offences that relate to child exploitation material under that act. I look forward to the government’s submissions in relation to those amendments during the committee stage.

The opposition has also filed two amendments. The first relates to the definition of the term ‘breasts’. Clause 5(7) of the bill inserts wording into the act to deal with the filming and distribution of an invasive image. For the purposes of defining invasive images, the bill includes the words ‘in the case of a female—the breasts are visible’. It is the view of the opposition that the word ‘bare’ should be inserted before the word ‘breasts’ otherwise images of covered breasts would be unintentionally caught under this definition. The opposition believes that this would be out of step with the balance of the section and with the notion of an invasive image warranting criminal sanction. The Attorney‑General said he would consider this particular amendment between the houses. We look forward to the minister advising the chamber of the Attorney-General’s view on this amendment.

The second amendment that the Liberal opposition is seeking to insert into the act is to delete the definitions contained in section 26B of the act relating to ‘broadcasting’, ‘media organisation’ and ‘publish’. The opposition proposes, instead, to replace it with a definition of media organisation that mirrors the definition contained in the recently passed Surveillance Devices Act 2016.

It is the opposition’s view that the definition contained in the government’s bill is out of step with definitions used elsewhere, and does not adequately reflect what constitutes how the media operates in contemporary society. As the opposition previously argued in respect of the Surveillance Devices Act, the definition contained in the bill links media organisations to broadcasting licences, which excludes a number of organisations that are currently operating as a media organisation but would not satisfy this criteria. The opposition believes the proposed amendment would achieve legislative consistency, and accurately reflect how freelance and other contemporary media practices operate in modern society.

In summary, the Liberal opposition hopes that this bill will assist in constraining the trend in our community in relation to sexting, and discouraging the same. With those words, I indicate to the chamber that the Liberal Party will be supporting the second reading of this bill.

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