Summary Offences (Filming and Sexting Offences) Amendment Bill

Second Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (20:45): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Bill refines and updates the offences in Part 5A of the Summary Offences Act 1953 (filming offences) in response to the emerging phenomena of sexting (the sending of sexually explicit photographs or messages, typically via mobile phone) among young people and revenge pornography (the publication of explicit material portraying someone who has not consented for the material to be shared, often with the purpose of causing humiliation, embarrassment or distress). Sexting-type images of adults and minors are commonly being used (whether by adults or minors) as a tool of revenge, bullying, vilification or harassment or as a form of domestic violence. This is a major source of current concern.

The Summary Offences (Filming and Sexting Offences) Amendment Bill 2016 proposes to amend Part 5A of the Summary Offences Act to apply the current offence of distribution of an invasive image to the distribution of images depicting a minor, being a child under the age of 17 years, to create a new offence of threatening to distribute an invasive image or an image obtained from indecent filming, which would apply to both minors and adults, and to make other consequential and related amendments to the existing provisions.

The Bill will amend section 26C of the Summary Offences Act so the offence in section 26C of distributing an invasive image will apply to images where the party depicted is under 17 years. Under the Bill, the distribution of an invasive image of a minor will be a criminal offence attracting a fine of up to $20,000 or imprisonment for four years. The existing penalty for the offence of distributing an invasive image of an adult is unchanged, namely a fine of up to $10,000 or imprisonment for two years.

In order to prevent the criminalisation of the distribution of innocent images of minors (for example, sending innocent images of naked infants to family members), the definition of invasive image excludes an image of a person that falls within the standards of morality, decency and propriety generally accepted by reasonable adults in the community. This test is a familiar concept in the criminal law. This definition protects the innocent uses of images of minors but ensures that the distribution of explicit images of children that offend reasonable adults in the community applying the stated standards are captured. This also means that the distribution of such images where, for example, the images themselves or the audience is inappropriate, are not captured by this exclusion and may still be charged. The inappropriate distribution of explicit images may also be captured under the child exploitation material offences in the Criminal Law Consolidation Act 1935.

A new offence has been created, which will apply to invasive images or images obtained by indecent filming of adults or minors, to target persons who threaten to distribute such an image of another person, intending to arouse a fear that the threat will be carried out or being recklessly indifferent as to whether such a fear is aroused; a practice colloquially referred to as 'revenge porn'. In many cases of revenge porn, the images are acquired in the context of a relationship or by way of consensual sexting. Such an offence will attract a penalty of up to a $10,000 fine or 2 years imprisonment if the image is of a minor, and up to a $5,000 fine or imprisonment for 1 year in any other case.

The Bill also makes related and consequential changes, such as making the relevant age 17 years rather than the current 16 years for section 26C and section 26D offences (consistent with the child exploitation material and other sexual offences in the Criminal Law Consolidation Act), updating the preferred terminology and definition of a cognitive impairment to invalidate any consent to the distribution of such images, and incorporating female breasts in the definition of an invasive image and private region.

The Bill will provide prosecuting authorities with greater flexibility and a wider range of offences to better reflect the nature of the offending conduct in a particular case as, presently, offences involving invasive images depicting children aged under 17 can usually only be charged under the child exploitation material offences in the Criminal Law Consolidation Act.

The Bill reflects changing social and technological trends and reaffirms standards of appropriate conduct, especially involving the use of invasive images depicting minors. It is important to avoid an assumption that young offenders who deal with explicit material depicting a child aged under 17 are simply naïve or misguided individuals. There are some young offenders who use such images as a form of unacceptable bullying (including, as revenge pornography). There will, of course, continue to be serious cases involving child exploitation material where a young person should properly be charged with an offence under the Criminal Law Consolidation Act. Decisions as to the appropriate charge in any such case, if any, are best left to the sensible exercise of discretion by police and prosecutors.

Any solution to this complex area is obviously not purely legislative. There is an important role for education, especially for children. However, the criminal law also has a vital role to play in declaring the boundaries of appropriate conduct.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Summary Offences Act 1953

4—Amendment of heading to Part 5A

It is proposed to amend the heading to Part 5A to reflect that the offences will cover sexting.

5—Amendment of section 26A—Interpretation

It is proposed to insert a definition of cognitive impairment for the purpose of replacing the outdated and more limited term of 'mentally incapacitated' currently used in section 26E(1)(a) (and see clause 10). It is also proposed to amend the current definitions of film, private region and private act; to insert a definition of image which makes it clear that an image includes an image that has been altered by digital or other means; and to substitute the definition of invasive image. The new definition of invasive image will no longer exclude images of a person under or apparently under the age of 16 years and, instead, will provide that an image of a person that falls within limits of what are generally accepted in the community will not be taken to be an invasive image of the person.

6—Amendment of section 26B—Humiliating or degrading filming

This amendment is consequential.

7—Amendment of section 26C—Distribution of invasive image

The proposed amendment to section 26C substitutes the penalty provision for subsection (1) so that a higher penalty is provided if the invasive image is of a minor than in any other case. The penalties match those set for offences under current section 26D (Indecent filming).

8—Amendment of section 26D—Indecent filming

This amendment is consequential.

9—Insertion of section 26DA

A new section is proposed to be inserted after section 26D.

26DA—Threat to distribute invasive image or image obtained from indecent filming

New section 26DA(1) provides that a person who makes a threat to another person that he or she will distribute an invasive image of that person or some other person intending to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused, will be guilty of an offence. The maximum penalty for such an offence is as follows:

(a) if the invasive image is of a minor—$10,000 or imprisonment for 2 years;

(b) in any other case—$5,000 or imprisonment for 1 year.

New section 26DA(2) provides that a person who makes a threat to another person that he or she will distribute a moving or still image obtained by the indecent filming of that person or some other person intending to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused, will be guilty of an offence. The maximum penalty for such an offence is as follows:

(a) if the person filmed was a minor—$10,000 or imprisonment for 2 years;

(b) in any other case—$5,000 or imprisonment for 1 year.

It is a defence to a charge of an offence against subsection (1) or (2) to prove—

(a) that the person filmed consented to that particular distribution of the image the subject of the filming; or

(b) that the person consented to distribution of the image the subject of the filming generally,

and that, at the time of the alleged offence, consent to the distribution had not been withdrawn.

This section applies to a threat directly or indirectly communicated by words (written or spoken) or by conduct, or partially by words and partially by conduct, and may be explicit or implicit.

10—Amendment of section 26E—General provisions

One of the amendments proposed to section 26E(1)(a) lifts the age of consent for the purposes of this Part to 17 years and changes the reference to 'mentally incapacitated' to refer to cognitive impairment; and the other is a consequential amendment.

Debate adjourned on motion of Hon. J.S.L. Dawkins.