Summary Offences (Filming and Sexting Offences) Amendment Bill

Final Stages

Consideration in committee of the Legislative Council's amendments.

(Continued from 23 June 2016.)

Amendment No. 1:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendment No. 1 be agreed to.

We have a couple of amendments that have come here from the other place, and I just wanted to put on the record our position in relation to those amendments. The first amendment is to do with refining the aspect of the exposure of the breast. In relation to this, can I indicate that the government will be accepting this amendment.

The definition (as included by the bill) was deliberately broad, to cover any image involving female breasts which may be considered to be invasive, but measured by the propriety test in subsection (3). Context is, of course, critical when dealing with these images. It is the government's view that the determination of whether the image of breasts that are not entirely bare is invasive, should be left to the prosecuting authorities and the courts to decide. Having said that, though, we will accept the amendment.

Ms CHAPMAN: I indicate the opposition appreciates the government's agreement to this. Otherwise, it would be known as the 'bikini bill', and every poor girl who is brave enough to wear a bikini would potentially be the subject of inclusion. That would not have been acceptable to us, so we thank the Legislative Council for moving this sensible amendment and the government for accepting it.

Motion carried.

Amendment No. 2:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendment No. 2 be disagreed to.

This is an amendment that we do oppose, and I would like to place on the record why. The act currently provides that in proceedings for an offence against section 26B—Humiliating or degrading filming offences—and it is important to bear in mind what we are talking about: humiliating and degrading filming—if the defender establishes that the conduct was engaged in by a media organisation as defined, the conduct will be taken to have been engaged in for a legitimate public purpose and thus be a defence to the charge unless the court finds otherwise.

I would like to make it clear right from the outset that this proposed amendment drastically expands the available statutory defence to a wider range of media organisations should they choose to publish humiliating and degrading images—I repeat: humiliating and degrading images; not images that are in the public interest, but humiliating and degrading images. The government has strictly defined 'media organisation' for these purposes so as to limit the types of media organisations that receive the benefit of this provision, media outlets that are subject to professional and ethical regulation and controls.

The original bill inserting this offence was the result of careful consideration and consultation and covers organisations that are regulated, licensed or otherwise formally recognised as professional media organisations. Nothing has changed since 2012 to support altering this definition in the present context. Indeed, if anything, the passage of the last few years has demonstrated what technology is doing in terms of providing completely irresponsible individuals with access to international broadcasting capabilities by means of something as simple as a phone.

The definition proposed by the opposition is based on a definition in the recently debated surveillance devices legislation. This legislation is entirely different to the surveillance devices legislation. The Surveillance Devices Act contains a broad definition of 'media organisation' as it specifically contemplates video or images being in the public interest, and therefore being publicly distributed. It is designed to protect people who expose things that are in the public interest.

Section 26B of the Summary Offences Act, however, seeks to protect victims from having humiliating or degrading images distributed—completely the opposite. There is no need for consistency between the two definitions, as has been suggested by the opposition, as the two acts are doing completely different things. It is a case of apples and oranges. There are very good and compelling reasons to keep the definitions inconsistent.

The government did not and does not intend to define what a media organisation is in contemporary society for all purposes with this definition. Rather, it defines 'media organisation' for the specific purposes of this bill being considered to be broadcasting for a legitimate public purpose and having a defence to a charge of distributing an image obtained by humiliating and degrading filming. The amendment is unhelpfully broad and could allow any YouTube, quasi news channel or faceless blogger to broadcast humiliating and degrading films while at the same time receiving, bizarrely enough, the benefit of being considered to be a 'media organisation', and their conduct being taken to be for a legitimate public purposes. This is a real fear.

While a court can find otherwise, as a matter of policy we must be clear which types of media organisations should be deemed by legislation to have engaged in actions for a legitimate public purpose and have a defence to such a charge. A person seeking to victimise another person through broadcasting of a humiliating or degrading image would in fact be assisted by this amendment, as it unwisely expands the net of potential broadcasters who may seek to claim they are broadcasting for a legitimate public purpose. We must not forget that, while a court may find that such a publication was not in the public interest, this would inevitably occur after the event and the damage would have already been done.

The opposition relies on the use of the term 'organisation' in the definition to assure us that their amendment does not extend to bloggers or irresponsible outlets. Given 'organisation' is not defined, it is unclear how the use of the term 'organisation' gives any legitimacy to the broad range of media and quasi-media groups that would be covered under the proposed new definition. 'Organisation' is not going to be limited to a company structure or a regulated body. The Macquarie Dictionary,no less, says that an organisation includes 'a body of persons organised for some end or work'. I do not think we can take any comfort from this.

The opposition's definition opens the door wide to every YouTube channel or blog to broadcast humiliating and degrading films while receiving the benefit of being considered to be a media organisation. It would not be beyond the realm of possibility for a group of three or four people to work together on their blog or website, titled 'Schoolyard Beatdown Media Online', and post images of schoolkids being assaulted, humiliated and degraded, contrary to the provisions in section 26B, under the guise of being a legitimate media organisation. This is surely not what parliament should be condoning or purporting to give any legitimacy to.

The Hon. Tammy Franks in the other place raised issues about media outlets that do not fall in this definition, including InDaily and The Age online. Whether or not these publications fall within the relevant definition is irrelevant. Does anybody really expect either of these websites to be inappropriately publishing degrading or humiliating images? I would not have thought so.

It is duly noted that the courts can determine if the publication was not for a legitimate public purpose, but I repeat: as a matter of public policy, we as a parliament must be clear which types of media organisations should be deemed by legislation to have engaged in actions for a legitimate public purpose and have a defence to such a charge. This is a privilege the parliament is extending to these people.

The government has confidence in the editorial discretion of mainstream media outlets that such images would be appropriately referred to police. It does not have the same confidence in certain forms of alternative media. Further to all of this, though, is a more pertinent question: why would it be necessary for any media organisation, legitimate or otherwise, to show images of a person being humiliated and degraded and thereby further contribute to the victimisation of the person depicted in the image?

Legitimate reporting of an offence by the media can surely be undertaken without publication of images constituting the original offence. I would hope this provision already has very little work to do so far as legitimate media organisations, as currently defined, are concerned. We should certainly not be encouraging this any further.

Ms CHAPMAN: The opposition has supported this amendment, and it is true that we considered the question of consistency in the definition of 'media organisation' and did look at the Surveillance Devices Act as a recent piece of legislation where this was the subject of considerable debate. That legislation was to provide for the publication and promotion of material that was published by a media organisation within certain circumstances, to enable that to occur in the public interest.

Whilst the government chooses to distinguish that legislation from the current legislation, which is to essentially protect against the publication of humiliating material, we do not accept that the definition needs to be different. In fact, there is a good case, as highlighted by outlets such as InDaily, for that to occur. So, we do not accept the government's position on that.

It seems that everyone in the other place understands the significance of this amendment and why it needs to be progressed in that form. It does not mean that there is no protection against someone who publishes in the terms that the Attorney has stated. A media organisation, in fact, still requires some definitional limits. If the Attorney wants to look at the question of defining 'organisation' in the statute, we are not averse to that. However, we consider that this is the appropriate course.

The Legislative Council obviously takes that view, so we remain in support of the amendment and are willing to accept it. Obviously, it is noted that the government's position is averse to that and, accordingly, it seems we are facing a deadlock position. After the message has returned to the Legislative Council, I will discuss with the Attorney nominees for that purpose, if they wish to proceed in that manner.

Motion carried.

Amendments Nos 3 to 7:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments Nos 3 to 7 be agreed to.

These are essentially government amendments which were trying to deal with the question of multiple different ages being the age of 18, which is the age of majority, the age of 17, which is the age of consent, and so on. The amendments basically provide consistency for all of the part 5A offences with the Criminal Law Consolidation Act defence of unlawful sexual intercourse, which effectively provides that 17 is the age of consent. It is also consistent with the linked child exploitation material offences. It is appropriate to maintain consistency, we believe, with these types of offences in this section.

Motion carried.