Bills

Summary Offences (Filming and Sexting Offences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 18 May 2016.)

The Hon. A.L. McLACHLAN (16:22): 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.

The Hon. K.L. VINCENT (16:31): Can I just put a few brief words on the record on behalf of Dignity for Disability in support of this bill. I start by thanking those members and staff who have taken the time to inform myself and my staff about it. This is a very important issue for the safety of many people, particularly young people. I, like all other members in this place, I am sure, have been shocked and appalled by the apparent increase in the use of the vile practice that has been deemed 'revenge porn'. I think any measure to tackle that, and to punish those who stoop to the level of using those measures, should certainly be welcomed. I also hasten to add that I am concerned—

The ACTING PRESIDENT (Hon. J.S.L. Dawkins): I am sorry to interrupt the honourable member, but the honourable members behind the lobby ought to be aware that their voices do carry, and the Hon. Kelly Vincent has not the strongest voice in the chamber; so if members could be aware of that I would appreciate it. The Hon. Kelly Vincent.

The Hon. K.L. VINCENT: I once had a drama teacher who described my voice as 'the sound of the wind going through the trees'. That is how I like to think of it, instead of something more negative. It does sometimes have its downfall, so I very much appreciate your protecting my little wind, Mr Acting President.

If I can just catch my train of thought now—I think I was saying that I have also been quite concerned about some commentary, particularly on social media, that did really stoop, I think it is fair to say, to victim blaming. Yes, I think there does need to be more education and awareness for people of all ages, but particularly young people, about the fact that the distribution of the kind of images that we are talking about here should not be done lightly, but also I do not think that these two things need to be mutually exclusive.

We also need to take a stand, as a parliament and as a community, and say, 'That person distributed that image' or 'trusted you to take that image,' in the context of a very particular relationship, be that a romantic relationship or something else, and, 'Just because you are bitter about the way that relationship has ended' or things that have happened within the context of that relationship 'does not under any circumstances give you the right to seek revenge in this violent and despicable way.' As I said, any measure to punish people, but also to send the message that the victims of so-called revenge porn are not automatically to blame here in the way that many people out there would seem to believe. So this is a very important bill and one that we are happy to support.

I also add, though, following on from the Hon. Mr McLachlan's explanation of his amendment, that I get a bit nervous (I do not know if 'nervous' is the right word, but I cannot think of a better one at the moment) when we deal with legislation that talks about community standards and the idea of propriety, only because acceptable behaviour might vary quite differently from one person to another. We cannot all be as dignified as you, Mr Acting President.

I sought some advice from parliamentary counsel that I would like to explain, because I did have a query about the Hon. Mr McLachlan's amendment, particularly as it does relate to bare breasts. I was concerned that it might cover things like, for example, the depiction of the nonsexual use of breasts such as when breastfeeding. That would be of concern to people like myself, who were quite tired of seeing a very natural and normal thing like breastfeeding demonised in the media as well as on social media and in the community.

So I sought some advice on this, as to whether the Hon. Mr McLachlan's amendment could cover that, and the advice I have received is, to paraphrase, that for the purposes of part 5A of the Summary Offences Act an image would only be deemed to be invasive if it depicted the person baring their breasts in a place other than a public place. Therefore, if it were an image of a woman breastfeeding her baby in, say, a cafe or a movie theatre it would not be deemed an invasive image for the purposes of this bill, as I understand it, because a cafe or movie theatre or a restaurant is, by definition, a public place.

The advice I have from parliamentary counsel also says that it would be very hard to argue, very hard to see, that if a woman were simply breastfeeding her baby in a place that is not a public place, how this could offend against the propriety test set out in section 26A(3). However, if there were a situation where a woman happened to be breastfeeding but also doing something else that was, arguably, sexual at the same time, that may well be an offensive image.

I just want to make it clear it is my understanding that, for the purposes of this bill and for the purposes of the Hon. Mr McLachlan's amendment, the mere natural and normal act of breastfeeding would not be deemed a sexual and therefore invasive image if it were depicted and distributed in a photograph. I just want to make that clear, because it was of concern to me and may have been of concern to some other members. With those few brief words, and with that clarification on the record, I will be happy to support the bill.

The Hon. T.A. FRANKS (16:37): I rise today on behalf of the Greens to speak to the government's Summary Offences (Filming and Sexting Offences) Amendment Bill 2016. The Greens support the threefold effect of this bill.

First, it criminalises the act of distributing what is called 'revenge porn'; that is, invasive photos of people shared to scare, intimidate or shame them. Society is perhaps too eager to, if not justify then rationalise the distribution of revenge porn as the act of, say, a spurned lover. That assumption can be wrong. The people who share such images are at best immature bullies and at worst manipulative egomaniacs. Either way, people take pleasure in humiliating others or they use material gained in confidence—often during a romantic relationship—to control and intimidate that other person.

Secondly, in criminalising the perpetrators of these attack, it reinforces that the South Australian parliament, the police force and our laws all recognise that people who may share these photos in confidence—although many of these attacks have actually involved the hacking of private accounts to gain these photos without consent, as well as those that have then shared willingly—are not responsible for the vitriolic use of those photos to humiliate them.

I would like to call out some media sources in their treatment of revenge porn, in particular Channel 7's Sunrise, who in the wake of the local attacks which came to light last year, insisted on posting to their social media account that these victims of revenge porn were somehow responsible for the non-consensual use of those photos gained from hacking. On the Sunrise Facebook page it stated: 'What's it going to take for women to get the message about taking and sending nude photos?' One feminist writer, Clementine Ford, responded, and she summed it up in a way that I will share with members because I could not say it better myself:

I have taken nude photos of myself and sent them to lovers, I've taken nude photos of myself when I'm bored, I've taken nude photos just because I have a smart phone and it's fun. None of that means I have asked for my privacy to be violated, my photos stolen and my very self made available for public humiliation and judgement. Consent is everything. When Channel 7's Sunrise asks 'when will women learn' instead of 'why do men continue to view women as objects they can defile and violate while the world watches and tut tuts', they are victim blaming. They are saying it's the responsibility of victims of crime and assault to prevent it and not the responsibility of society to make such crimes intolerable and unacceptable.

When will women learn? Learn what? That our bodies do not belong to us? That we have no right to determine who sees those bodies, touches those bodies—

The next line is unsayable for Hansard—

[does other things with those bodies] and shares in those bodies? Honey, we don't need to learn that. We already know the answer. We don't have those rights. We are not allowed to be the masters of ourselves, only the gatekeepers.

Consent is what happens when you give permission. Theft and assault is what happens when people take it from you despite you saying no.

Sunrise later deleted that particular post and replaced it with, and I quote: 'A stern warning for people who share risqué photos online.' This replaced comment is still directed at the victims of crime and not the perpetrators of those crimes. I hope this bill and similar ones interstate have shown, particularly those media sources, that in these circumstances victim blaming is now a legal myth, and with the passage of this bill certainly that will make that plain.

Thirdly, this bill offers prosecutors an alternative offence to charges of distributing child pornography when minors share explicit images, a move long overdue and much welcome. As the Attorney-General's Department explanatory paper clarifies, however, this will simply be an additional offence open to our legal system.

There has been, and will still be, serious cases involving minors distributing child pornography who merit being charged under the Criminal Law Consolidation Act. Although it is wrong to believe that minors who share explicit pictures are always naive or misguided about the consequences of their actions, it is undeniable that in some cases this is the case. We live in a society where each and every single one of us who has a smart phone, including minors, holds a potential personal porn production company in the palm of our hands.

The Luddites amongst us might believe that this distribution of explicit images is somehow a very modern or contemporary phenomenon. To them I say, have a look back through history, particularly the early 20^th century, but certainly it goes far further back than that, to see that this is simply not the case; it is simply now that these images can be taken, shared and distributed in a matter of seconds or less.

It is a proud moment when our parliament passes legislation such as this which seeks to end victim blaming and which seeks to keep up with the times of technology. Certainly I will be looking forward to the debate, quite rightly I think raised by the Liberal opposition, as to whether or not the definition of 'breasts' should include the word 'bare' before 'breasts' as in the following part of that clause where genitals are actually defined as being 'bare'. It seems logical to me and I certainly look forward to the committee stage debate on that and, indeed, the amendments that the government has put forward on this bill.

It is time to stop victim blaming. These types of revenge porn tactics are used in what is in many cases violence against women (not always violence against women), when they are threatened or shamed by having images distributed of them without their consent. With those few words, I look forward to the committee stage and will support the second reading of this bill.

The Hon. J.A. DARLEY (16:45): I rise briefly to support the second reading of the Summary Offences (Filming and Sexting Offences) Amendment Bill 2016. As outlined in the second reading report, the bill updates filming offences in part 5A of the Summary Offences Act 1953 in response to the emerging phenomena of sexting and revenge pornography. In short, it does so by broadening the scope of offending to also include threatening to distribute invasive images, or images obtained by indecent filming, and by increasing the penalties that apply to new and existing offences.

There have been many very public examples of sexting-type images being used as a tool of revenge, with apparently very little regard for the consequences that this sort of behaviour can have on the parties involved. Unfortunately, as we all know, this sort of behaviour has also become quite common amongst younger people. Bullying and harassment is, of itself, unsettling behaviour for victims. When you add to that mix the dissemination or the threat of disseminating invasive images, it adds another completely unacceptable layer of humiliation and denigration. The problem is magnified even further when the victims, and often the culprits, are minors.

I agree wholeheartedly with the government that this is a complex area that cannot be dealt with by legislative reform alone. Education also plays a key role, and it is extremely important that minors in particular are educated about the wideranging and extremely damaging ramifications this sort of behaviour can result in for victims and offenders alike.

To that end, I ask the minister to advise whether consideration has been given to any sort of education campaign in schools, not only about the inappropriateness of sexting and revenge pornography but also about the consequences of that sort of behaviour. With those words, I indicate my support for the second reading of the bill.

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) (16:47): I thank all members for their contributions on this bill and look forward to the committee stage. I know some questions have been raised that will be addressed in committee.

Bill read a second time.