Bills

Summary Offences (Filming and Sexting Offences) Amendment Bill

Committee Stage

In committee.

Clause 1.

The Hon. T.A. FRANKS: I still have some questions with regard to the definition of 'bare' and 'breasts' that I was awaiting a response from the government on given that it was going to be discussed between the houses. Then I have further questions about the implementation of this bill.

The Hon. P. MALINAUSKAS: Did you ask some questions?

The Hon. T.A. FRANKS: I raised these questions in the second reading so I was expecting answers to them as we proceeded to the committee stage; similar questions to those raised by the member for Bragg and also the Hon. Andrew McLachlan in this place. They are: why has the government defined 'bare genitals' as one definition used but not 'bare breasts'? Why have they simply referred to 'breasts'? What is the reasoning behind that? What was the legal advice? We were told in the other place by the Attorney that we would receive some clarification around that before it came to this place.

The Hon. P. MALINAUSKAS: I am advised that the government's position regarding this issue about 'breasts' was dealt with in our opposition to the Hon. Mr McLachlan's first amendment. I am happy to discuss that and go into a bit of detail then if that suffices for the honourable member or would she prefer that I seek to address that now?

The Hon. T.A. FRANKS: I would prefer that addressed now.

The Hon. P. MALINAUSKAS: What I am able to do then is share the information that I have in front of me that I have been advised of regarding the Hon. Mr McLachlan's amendment No. 1, which the government opposes. The government believes that it is unnecessary and unhelpful to include the word 'bare' before 'breasts' in the definition of an invasive image. The definition already provides that the person must be in a state of undress in the image and so would not capture an image of a fully-clothed female as suggested by the opposition, other than if such an image met the other criteria of an invasive image.

The definition is deliberately broad. It is intended to cover any image involving female breasts which may be considered to be invasive but applying the community standard in subsection (3) will protect against the capture of generally-accepted images even where breasts may be visible in an appropriate context. The context of the image is critical and therefore 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.

The inclusion of the word 'bare' would mean that an image of the breasts of an underwear-clad female would not be captured. I would think it is entirely appropriate that a person could be charged with a section 26C offence of distribution of an invasive image if distributing an image of a 14-year-old female in a bra in an embarrassing situation. A teenage girl or, indeed, an adult woman might distribute such an explicit image to her boyfriend who later, after they break up, distributes such an image on the internet without her consent. This clearly should be capable of amounting to an invasive image depending upon the particular case.

The Hon. T.A. FRANKS: Are those provisions not covered by the previous legislation debated in this place about demeaning and degrading imagery?

The Hon. P. MALINAUSKAS: I am advised that in the first set of amendments the word 'breast' was not originally included. I am not too sure as to why that is the case, but nevertheless it was not included, which is what is seeking to be addressed in this bill.

The Hon. T.A. FRANKS: Why does this bill, in its amendment to section 26A, in the particular section that we are now discussing with regard to the definition of breasts being visible, not simply say genitals or anal region, rather than the 'bare' genital or anal region. What was the drafting advice around that?

The Hon. P. MALINAUSKAS: I am advised that that question was never raised in the context of the drafting of the bill.

The Hon. T.A. FRANKS: With respect, it was raised in the parliament in the other place and in second reading speeches here. We never received a response in any form, despite assurances from the Attorney, in the other place, that there would be some advice from government on this. Is it simply a process issue that we have not had answers as to why the drafting has defined the bare genital or anal region, but, with breasts, has not defined that they be bare? This is our question. It will obviously come up in relation to a particular amendment that we will debate, but we were actually told in the other place, as members of parliament, that we would receive some greater information than we are currently able to receive from you in your place as representing the appropriate minister on this.

We are simply looking for more clarification as to this lack of consistency between the definition around breasts and that definition about genitals and anal region. I would have thought that given things like breastfeeding, given the ability for people to be in a public place, indeed, in a state of toplessness, that perhaps that might not be the appropriate definition to have for the breasts, and given that the genitals, you would think, would actually be a far more sensitive part of the anatomy, in terms of those practices. This is why I am asking these questions.

I am not sure what you can do because, I think, as the minister representing the minister, you have not been given the appropriate information and certainly, as a member debating this bill, I do not feel that we have been given the information that we were promised in the debate in the other place. So, with that, I might drop this line of questioning, and I am simply going to indicate that the Greens will be supporting the Liberal amendment, until the government has some further information that can assuage our concerns that there are drafting errors here.

The Hon. P. MALINAUSKAS: Hopefully I understand the tenor of your question. I will try to clarify what I understand your question to be and then I think I have an answer for you, Hon. Ms Franks. Is the tenor of your question: why has the government not inserted the word 'bare' in front of 'breasts' but has in regard to genitals or the anus region?

The Hon. T.A. FRANKS: Yes.

The Hon. P. MALINAUSKAS: The answer to that, I am advised, is that 'bare' was always in the original definition in respect of genitals and the anus region, but it was not the case in respect of breasts, and the continuation of the existing definition in respect of genitals and the anus region has just simply continued from what it was originally. That may not necessarily answer a subsequent question of yours around why the inconsistency, but I think the question of why the inconsistency is dealt with in the context of the Hon. Mr McLachlan's amendment.

The Hon. K.L. VINCENT: At this stage, Dignity for Disability is inclined quite strongly to oppose the Hon. Mr McLachlan's amendment, not because we do not appreciate what he is seeking to achieve with it but because we are convinced by the arguments similar to those that the minister has shared this afternoon, in particular around the fact that a person's breasts not being bared might still be distressing to share. For example, if it is a young woman in a bra or another piece of clothing, it may still have the same impact on that young person, so we are inclined to support the definition as it is currently.

I have a couple of questions to seek some clarification because I want to make sure that we, as members of this chamber, understand this very important bill that we are debating. Some of my questions might be a bit unnecessary in seeking this level of clarification, but I just want to be sure. First, could I seek from the minister some level of definition for the record around the phrase 'state of undress'? Does it include a young woman in a bra or a swimsuit, for example? Can the minister elaborate on the definition of 'state of undress', for a start?

The Hon. P. MALINAUSKAS: The answer to that question is that it depends on the context of the environment. So, where the individual would be located would very much be a variable that the courts or the prosecutors would take into consideration when determining whether there is a matter to be looked at. For instance, as I understand it and as I am advised, the bill or the act specifically exclude different environments. For instance, if someone is on a beach and they are in a bikini, that would not necessarily constitute a state of undress.

The Hon. K.L. Vincent: Because that's a public place.

The Hon. P. MALINAUSKAS: Because that's a public place. However, in a different, private environment that may well be the case, but that is a decision that would be left to prosecuting authorities and the courts to determine.

The Hon. T.A. FRANKS: An example I will give is Maslin Beach; a person is topless, they are female. Is that a public place or is that a private place, given that nudity is allowed in that public place but expected to be respected and images taken not shared?

The Hon. P. MALINAUSKAS: An interesting question. I am advised that, again, it depends on the context. One would be forgiven for assuming that Maslin Beach is a public place, but the nature of the location, the context of the photography, the person taking the photo's intent and the intent of the person being photographed would all have to be looked at in context, and decisions made by the prosecuting authority and the courts accordingly.

The CHAIR: We are talking about an issue in clause 5 that we have not even got to yet. Shouldn't these questions be asked at clause 5?

The Hon. T.A. FRANKS: Interesting point, Mr Chair. Shouldn't these questions all have been answered, as they were promised to be, after the second reading debate? They are not all relevant to clause 5 but, in particular, we have an amendment at clause 5 that will address one of the issues. I have a final question; the minister will be happy to hear that it is the final one, but had the government actually provided answers to these questions as they promised in the other place we would not be having this debate in the committee stage now. Thank you for your support.

My final question on this is the practice, usually engaged in harassment, and particularly of younger women online, where they are sent pictures, usually of male genitalia. Women have taken to posting these online as a way of retaliation for this harassment. What position would a woman be in who posts one of these pictures of genitalia, or indeed several pictures of genitalia, that she has received unsolicited, unwanted and in a harassing manner? What would be the treatment of that woman should she post these pictures online?

The Hon. P. MALINAUSKAS: I am advised that in the context of the example just provided, if you publish material of the nature described then the act captures that. However, different circumstances around each event, each instance, would be taken into account by police, prosecuting authorities and the courts accordingly.

The Hon. T.A. FRANKS: My supplementary question, because this is the final line of query that I have about this, is: do we have an assurance that such ways of harassment—which are increasingly common, particularly for young women online—will be taken more seriously by authorities into the future, when women are sent pictures of male genitalia unwanted, unsolicited and as harassment? They receive them when they go on Facebook, they receive them when they go on online dating. They are unwanted and unsolicited and they are increasing.

The Hon. P. MALINAUSKAS: I cannot speak for those authorities. What I would say is that the government takes this issue rather seriously, hence the reason why we are discussing the bill and the amendments accordingly. It would be the expectation of the government that all authorities seek to administer and enforce the law as it is appropriate to do so.

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

The Hon. A.L. McLACHLAN: I move:

Amendment No 1 [McLachlan–1]—

Page 3, line 22 [clause 5(7), inserted subsection (2)(b)(i)]—Before 'breasts' insert 'bare'

I have listened intently to the debate, which revolved largely around the definition being inserted into section 26A of the Summary Offences Act. I do not find personally the proposition put forward by the government sufficiently convincing to withdraw the amendment. The opposition does not insert this amendment to undermine the intent of the bill. It strongly supports the amendment before the committee at the moment.

If you take the government's argument to its logical conclusion, then you would be seeking to remove the definition of 'bare' as it relates to genitals or the anal region, because you are either focusing on images that are invasive, which do not have something less than bare and are distressing to the individual, but as it says in clause 3, except those images that fall within the standards of morality, decency and propriety generally accepted by reasonable adults. You either consistently have 'bare' in both subparagraph (b)(i) and subparagraph (b)(ii) or you do not.

In our view, out of an abundance of caution and to be absolutely clear to those many people who are going to be interpreting this, as the minister has indicated—the police, prosecuting authorities and the judiciary—and to the people of South Australia that we are indicating bare breasts, because we consider that breasts, genitals and anal regions are of equal weight in being protected. I thank the Hon. Tammy Franks for teasing out these issues at clause 1. The opposition will move its amendment and continue to insist on the insertion of 'bare' before the word 'breasts'.

The Hon. P. MALINAUSKAS: I refer to my remarks earlier regarding the government's position on amendment No. 1 by the Hon. Mr McLachlan.

The Hon. R.L. BROKENSHIRE: I just put on the public record for all colleagues that Family First does see merit in what the Hon. Andrew McLachlan has moved when it comes to the issues around 'breasts' and 'bare' and 'visible' and so on, as he has highlighted. We do see some real problems if this amendment is not supported. Arguably, someone could be down at the beach taking a photo of their children playing happily with a bucket and spade and there happens to be a woman, as an example, in the background in a very brief bikini. Is that then an offence if that happens to be sent to family members or friends?

We believe from the interpretation of the government's legislation that it could be, and we do not believe that that would be the intent. We will be supporting the Hon. Andrew McLachlan's amendment No. 1, but I also, to save time, advise the committee that we will not be supporting amendment No. 2. I advise the minister that whilst we will be supporting the opposition amendment No. 1, we will not be supporting amendment No. 2. We will be supporting the government as per the bill on amendment No. 2 because we happen to agree with what the Attorney has argued against that particular amendment.

We commend the general principles of the bill to the house. We face a different situation to what we have faced before with technology. We have seen what has happened over recent years and we have been involved in comments on it in the media quite often. Take after school, for example, where there might be a brawl at the railway station or something like that, a lot of the students stand around and video that and glorify it and then send that everywhere. We have said that there are concerns about that.

There are clearly concerns about sexting and other issues regarding modern technology. When some of these people who are doing this get a little older and find that their image that they would not want the general public seeing has been right around the world and that they have no control over it, they will be very disappointed if it was with their consent (or even more disappointed if it was without consent), so we think the government is trying to do the right thing here on principle and tighten up the protection laws around what we now face with modern technology and, for that, we generally support the bill.

The Hon. J.A. DARLEY: I indicate that I will be supporting both of the opposition's amendments.

The Hon. T.A. FRANKS: The Greens will be supporting this and the other opposition amendment.

The Hon. K.L. VINCENT: As I have outlined, Dignity for Disability will not at this stage support the opposition amendments for the reasons I have already outlined around the problematic definition of bare breasts. Certainly, I personally can see the inconsistency with the definition of the genital and anus region as well and would like to see some more discussion and consistency around that. At this stage, we do not think this is adequate reason to support the amendment as it currently stands.

Can I just clarify something on the back of the Hon. Mr Brokenshire's amendment? I think he made mention of a situation where, for example, a person takes a picture of their partner on the beach and in the background is another woman who is in, as I think the honourable member put it, a very brief bikini—I am not aware of any long bikinis, but never mind. I think this is probably covered by the question I asked earlier where it depends on the context because it appears on the beach, but also it is my understanding, and I hope the minister can confirm this or provide from some further clarification, that my taking a picture of my partner on the beach and accidentally capturing someone else would not automatically trigger these measures because you would have to have the intent to cause harm with the image of that person by distributing it.

So, if it was a complete stranger that I had accidentally captured in my photograph, firstly the stranger would have to find out that they were in the photograph and I would have had to distribute it either to a friendship circle or Women's Weekly or something, and they would have to prove that I had the intent of defaming them by distributing that particular image. In the circumstances that the Hon. Mr Brokenshire has outlined, I do not think these measures would apply because there is a lack of intent to cause harm to that particular woman in the background—the hypothetical woman in the background—by taking that photograph. Is that correct, minister?

The Hon. P. MALINAUSKAS: I thank the Hon. Ms Vincent for her remarks. In respect of what the Hon. Mr Brokenshire said in regard to the incidence at the beach, as the Hon. Ms Vincent said, that would be in the context of a public place and the act specifically deals with the fact that in a public place it is treated differently. Furthermore, I refer the Hon. Mr Brokenshire and the chamber generally to section 26A(7)(3) which provides 'however an image of a person that falls within the standards of morality, decency and propriety generally accepted by reasonable adults in the community will not be taken to be an invasive image of the person.' I think the example you referred to might be such an example which someone would consider as falling in that category.

The Hon. R.L. BROKENSHIRE: To me, there is still a grey area there that will potentially end up in the courts, unless we actually support the amendment of the Hon. Andrew McLachlan. That is the worrying factor. This just clarifies, makes it absolute, as I see it.

Amendment carried; clause as amended passed.

Clause 6.

The Hon. A.L. McLACHLAN: I move:

Amendment No 2 [McLachlan–1]—

Page 3, after line 31—Insert:

(2) Section 26B(9), definitions of broadcasting, media organisation and publish—delete the definitions and substitute:

media organisation means an organisation whose activities consist of or include the collection, preparation for dissemination or dissemination of the following material for the purpose of making it available to the public:

(a) material having the character of news, current affairs, information or a documentary;

(b) material consisting of commentary or opinion on, or analysis of, news, current affairs, information or a documentary;

The amendment seeks to make consistent the definition of 'media organisation' in the Summary Offences Act, that is why it deletes the definition of 'broadcasting', 'media organisation' and 'publish', which are three definitions, 'broadcasting' and 'publish' being definitions arising out of the definition that currently exists in the act of media organisation.

The honourable members may recall that in the debate in relation to the surveillance devices, this chamber had consideration of the definition of 'media'. The amendment which I am moving and which I am asking the chamber to accept today—and I thank honourable members for their indications of support—is identical to that definition, and that definition was taken from the commonwealth Privacy Act. It is the view of the opposition that this bill brings to our attention and opens up other parts of the Summary Offences Act for consideration. This is a modest but important amendment for the chamber to consider.

I draw members' attention to the fact that this definition uses the word 'organisation'. It does not extend as far as bloggers or free-ranging discussion on the internet. This debate has been had by this chamber and the chamber endorsed this current definition of media organisation, which I table before them and seek the support of the committee to amend the government's bill. In our view, the amendment strikes the right balance of this definition between public interest and free press, and the public interest and the administration of justice. I was minded in my research in preparing for this debate I came across a speech by the Hon. Mark Dreyfus to the Sydney Free Speech Symposium, and whilst it is not directly related, he was making commentary in relation to anti-terrorism legislation. He had made an important quote, and I am referring to the Labor Party:

We will not tolerate legislation which exposes journalists to criminal sanction for doing their important work. Work that is vital in upholding the public's right to know.

And that is a similar sentiment to what is behind this amendment. The importance of the definition of 'media organisation' in the Summary Offences Act relates to indecent filming. Section 26B(7) states:

If, any proceedings for an offence against this section, the defendant establishes that the conduct allegedly constituting the offence was engaged in by or on behalf of a media organisation, the conduct will, for the purposes of this section, be taken to have been engaged in for a legitimate public purpose unless the court determining the charge finds that, having regard to the matters that are outlined in subsection (6), the conduct was not for a legitimate public purpose.

In effect, by inserting this definition, it makes no difference to the public interest or public purpose, in this case, defence for the media. Basically, the provision provides a presumption that the media are doing the right things, but one which can be overridden by the courts if in fact it is not for a legitimate public purpose and the media have overstepped the line.

So my submission, in effect, is that this amendment is not radical. It aims for consistency across a legislative framework about what is media and what is not. I will finish with a quote: 'A free press can of course be good or bad, but, most certainly, without freedom the press will never be anything but bad.' That is from Albert Camus, a philosopher. I will just leave my comments there.

The Hon. P. MALINAUSKAS: The government opposes this amendment. The act currently provides that in proceedings for an offence against section 26B, the humiliating or degrading filming offences, if the defendant 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 purpose and thus be a defence to the charge unless the court finds otherwise.

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 to those licensed under the commonwealth's Broadcasting Services Act 1992 and those that are members of the Australian Press Council or authorised under a law of the commonwealth. The original bill inserting this offence was the result of careful consideration and consultation, including with media outlets, 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. The definition proposed by the honourable member is based on the 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 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 widely distributed. 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 what is a media organisation for the purposes of being considered to be broadcasting for a legitimate public purpose and thus having a defence to a charge of distributing an image obtained by humiliating and degrading filming.

The amendment proposed by the honourable member is unhelpfully broad and could allow any person to set up a YouTube or even Jackass-type quasi-news channel or website to broadcast humiliating and degrading films while receiving the benefit of being considered to be a media organisation and their conduct being taken to be for a legitimate public purpose. While a court can find otherwise, as a matter of policy we must be clear which types of media organisations should be deemed by the legislation to have engaged in actions for a legitimate public purpose and have a defence to such a charge.

A person seeking to victimise a person through the 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 that they are broadcasting for a legitimate public purpose. The government has confidence in the editorial discretion of the mainstream media outlets that such images would be appropriately referred to the police. It does not have the same confidence in certain forms of alternative media. This should not be extended as far as proposed by the opposition.

The Hon. R.L. BROKENSHIRE: I ask the mover of the amendment a simple question for the record: does the Hon. Andrew McLachlan, the mover of this amendment, agree that he is significantly broadening the definition by having this amendment, and does he agree that it will include quasi-news outlets, such as bloggers or online news, that would not necessarily even be licensed?

The Hon. A.L. McLACHLAN: I thank the honourable member for his question. I draw the honourable member's attention to my earlier comments in relation to the definition of 'organisation', which came up in the debate on surveillance devices. The use of the word 'organisation' means, in effect, it has to be a structured organisation, and the interpretation that we believe would be applied to this is that it would not be an unreasonable expansion and would be confined to media outlets that members would naturally believe are not otherwise covered by the definitions currently in the bill. There were various online organisations, such as The Age or others—

The Hon. T.A. Franks: InDaily.

The Hon. A.L. McLACHLAN: InDaily and others, that we would naturally in this chamber, I think, believe to be reputable media outlets. We believe the amendment is measured and we believe that the debate is about what is a media organisation and that it is a spurious argument to say that it is relevant in the context of which bill it is being inserted. You are either a media organisation or you are not, and we need to take into account modern media, but not to the extent of private conversations, which was subject to the debate on surveillance devices.

So, if you put it in context, in essence again the government is arguing against itself, because it is saying that it is devaluing certain principles of the Surveillance Devices Act, saying that it can be broad, but in this bill it is different because the context is different. The debate should be confined to what is a media organisation in this state. It is, in effect, a false argument to be asserting that, in this context, media organisations are this big, but in another bill are smaller or larger. I do not think that has validity and I ask honourable members not to place any weight upon it.

We have considered the matters that have been raised by the government, and we considered them at the time of the surveillance devices debate, which is why the word 'organisation' was specifically inserted, and other parts of the definition, so that it is measured, not unreasonable and does not undermine the intent of the act that it is seeking to amend.

The Hon. R.L. BROKENSHIRE: First, in response to the mover's answer I would have thought that InDaily was a licensed media. He is saying that it is not. I do want to ask the mover of this amendment: if some people are interested in soliciting pornographic or sex-related material around a network that they have, and they are just basically a blogger, are you guaranteeing that they would not be protected by your amendment?

The Hon. A.L. McLACHLAN: I appreciate the Hon. Robert Brokenshire puts me on the same status as a Supreme Court judge—

The Hon. R.L. Brokenshire interjecting:

The Hon. A.L. McLACHLAN: One step at a time, Mr Brokenshire. As I said, in response to the Hon. Mr Brokenshire's question, we have sought advice, we have inserted this amendment in a previous bill, which has become law, and the chamber found favour with that. It is not our belief or our understanding that this definition would allow the circumstances that you assert. Of course, the honourable member unfairly asks me for a guarantee. We have drafted this with those circumstances in mind, and I hope that that response provides the honourable member with the comfort that he so desperately seeks.

The Hon. T.A. FRANKS: I indicate again that the Greens will be supporting this amendment. I note that in previous debates it has been identified that formerly InDaily was not falling under the definition of the current media definition as being defended here by the government. That may have changed but certainly The Guardian online and The Age online at that stage of the debate of the Surveillances Devices Bill similarly did not fall within the current state government preferred definition.

I do not think it extraordinary or indeed adventurous to go with the federal Privacy Act's definition. I think that is quite a conservative approach to take. Given that we are talking about a new media environment, a privacy provision here, protection of people's privacy, that perhaps the federal Privacy Act is not such a leap of faith to take. The Greens are certainly comfortable with following and supporting the definition put forward by the opposition, but do ask for clarification: does The Guardian online, The Age online and InDaily fall within the state government's current preferred definition of media?

The Hon. P. MALINAUSKAS: The government is not aware if particular media organisations like InDaily fit into the categories to which you referred. However, the government can advise that should InDaily not be registered and find themselves in this position they would be able to argue that they were broadcasting for a legitimate public purpose and thus have a defence. However, if you are a media organisation that is not licensed or regulated, for instance, then the government is of the view that you should not automatically have the presumption that would otherwise be afforded to you; rather, you would have to demonstrate that you are broadcasting for a legitimate public purpose.

The Hon. T.A. FRANKS: Is the minister embarrassed by having to provide that answer? I indicate that previously when we debated the Surveillance Devices Act amendments it was pointed out to the government then that InDaily was not covered by the state government's preferred definition of media organisation, as well as several other organisations. Is the government intending to lobby their federal colleagues to change the federal Privacy Act definition or will they simply continue to go it alone with an archaic definition of media?

The Hon. P. MALINAUSKAS: No, I am not embarrassed.

The Hon. A.L. McLACHLAN: Whilst the Hon. Tammy Franks was seeking some clarification I had a further thought to allay the concerns of the Hon. Robert Brokenshire. In essence, we are arguing over a definition that gives right to a presumption but it does not override the court's ability, as I indicated earlier in this debate, to determine that in fact it was not for a public purpose and therefore that organisation, whether a registered media organisation or other, should be subject to criminal sanction.

It is not, as some members may be under the misapprehension, an exemption which refers to the definition of media organisation; it is simply an adjustment of the burden of proof and, therefore, if any member is concerned they should take faith, as I know the minister has expressed in relation to other bills, in the discretion of the courts, on the ability of the courts and the competency of our courts to exercise the discretion appropriately.

The Hon. K.L. VINCENT: Can I ask a question which applies both to the minister and the mover of the amendment before us, because I wonder if they can elaborate on whether their different definitions, in the minister's case, in the current definition, and in the Hon. Mr McLachlan's, in the pros amended definition, would cover media outlets such as BuzzFeed, the Huffington Post, Junkie, Jezebel and other more online fora?

The Hon. P. MALINAUSKAS: The entitlement of a media organisation to a presumption depends on whether or not it meets the definition within the act, which, for the sake of clarity, is an organisation that engages in broadcasting, pursuant to a licence under the Broadcasting Services Act 1992 of the commonwealth, or that is otherwise authorised under a law of the commonwealth to engage in broadcasting, or is an organisation that is a constituent body of the Australian Press Council, or is authorised under a law of the commonwealth to engage in broadcasting.

If they do not fall under that definition, then of course the question would then become whether or not they were broadcasting, for the purpose of this act, for a legitimate public purpose, in which case, if they were, that would be a defence that they would be able to argue.

The Hon. K.L. VINCENT: Could I ask the same question of the mover of the amendment?

The CHAIR: Yes, of course.

The Hon. A.L. McLACHLAN: I do not have an intimate knowledge of those organisations, but they would have to be organisations, and I know that Huffington Post is an organisation. It would have to have material which is a character of news and current affairs. It could not be a porn organisation or a blogging organisation, as indicated by the Hon. Robert Brokenshire. In essence, the definition requires legitimacy and legitimacy which is over a period of time. A judge or a judicial officer looking at this would say 'Are they structured? Are they accountable to the community? Are they observant? They are not ethereal. Do they collect and disseminate material for the purposes of making available to the public?', which is the character of news and current affairs, not for titillation.

This definition really does exclude, in many ways, raw entertainment. I am not familiar with those websites, as I have not seen them, but I think the Huffington Post is an international news organisation of some substance. It would not necessarily be registered here in Australia. If its primary focus, in my view, is serious commentary and opinion and analysis of news, then it would fit within the definition. If it is purely a site of pornography, with a small amount of news that would reflect upon something similar to a gossip magazine, then it would be questionable.

The Hon. K.L. VINCENT: Could I ask the mover—and I do not want to put too fine a point on this, but again I am just trying to make sure that we are clear—using his definition, I think he used the word 'titillation', just to be absolutely clear, and I appreciate he does not have intimate knowledge of all these sites, but where would sites such as BuzzFeed, for example, fit into that definition, given that they are known to be a current affairs site, but they, I guess you could arguably say, usually portray stories in a relatively entertaining kind of manner? I would not say it was strict news.

The Hon. A.L. McLACHLAN: I have not seen the site, but I understand they are a member of the Canberra Press Gallery. It would be a question of degree. I come back though to organisations. They have to be structured and known. You cannot be, as I said, on the dark net. In essence, organisation infers accountability and the ability to litigate, fine and summons, and that is why the word was inserted. In essence, a criminal action can be taken against the corporate as a whole or against a collection of individuals. It really is a question of degree. It can be entertaining. You could say that news is entertaining, but that is why the words news, current affairs, information and documentary, as well as commentary and opinion have been inserted.

So, where pornography finishes and titillation starts and entertainment begins, the interpretation has to be futureproofed, to take a term used by the Hon. Mr Wade, otherwise this definition is so narrow that we are going to have to come back and amend it in the future if we do not amend it now because there will be legitimate news organisations—and I can see the context—warning young children about these invasive images, or there will be certain circumstances. I also think that the defence they have—well, they do not really have a defence, they have actually a presumption that prima facie they are doing the right thing, but if they are clearly not then a court could easily regard it in the presumption. I rely on both the provisions relating to the burden of proof and the presumption, as well as our definition, to give myself comfort in moving this amendment.

The CHAIR: Do you want to make any further contribution, minister?

The Hon. P. MALINAUSKAS: At the expense of repetition, to be clear, if an organisation is a media outlet that falls within the definition that currently exists within the act, which would encapsulate, I would have thought, the overwhelming majority of mainstream media, if it does not fall immediately within that definition then of course an organisation that does not fall under that category would be able to argue very coherently that they are a legitimate broadcasting organisation and they are exercising that function in the public interest. We think that is a legitimate position to have. Notwithstanding the Hon. Mr McLachlan's contribution, I think it is important to understand what the object of the bill is. We do not want to be changing definitions in such a way that will undermine the capacity for the bill to operate.

The committee divided on the amendment:

Ayes 10

Noes 9

Majority 1

Amendment thus carried; clause as amended passed.

Clause 7.

The Hon. P. MALINAUSKAS: I move:

Amendment No 1 [Police–1]—

Page 3, line 35—Delete 'minor' and substitute 'person under the age of 17 years'

This amends the penalty provision to be inserted into section 26C by the bill, which is the distribution of an invasive image offence, so that if an invasive image is of a person under the age of 17 years a greater penalty applies to the offence. The government's amendments Nos 1 to 5 deal with the same subject matter, so I will address the rationale for these amendments here.

These amendments are of a technical nature to make plain that it is the intention of the government that higher penalties will apply where images are of younger victims. These amendments do not make substantive changes to the bill presented here to the parliament. The penalty provision in section 26C as amended by the bill refers to the image being of a minor as the point at which the higher penalty applies. To provide further clarity to the intention of this change, the government's amendment No. 1 specifies that images of a victim under 17 is the point at which the higher penalty will apply. Significant penalties will still apply in any other case, such as where the victim depicted in the image is 17 or older.

The amendments provide consistency for all part 5A offences with the Criminal Law Consolidation Act 1935 offence 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 in the Criminal Law Consolidation Act where such offences apply where the material depicts a child under the age of 17.

The relevant age for the child exploitation material offences was increased from 16 to 17 years a number of years ago, also to achieve consistency with the age of consent. It is appropriate and sensible that we maintain consistency between these types of offences, and this bill provides a useful vehicle in order to do so.

The Hon. T.A. FRANKS: I simply note that the Greens will be supporting the government amendment and note that they have needed to fix their own bill.

The Hon. P. Malinauskas: Noted!

The Hon. A.L. McLACHLAN: I indicate on behalf of the opposition that we will not be opposing these amendments.

The Hon. J.A. DARLEY: For the record, I will be supporting this amendment.

Amendment carried; clause as amended passed.

Clause 8.

The ACTING CHAIR (Hon. J.S.L. Dawkins): The minister has two amendments which he can move at the same time. I understand they are consequential.

The Hon. P. MALINAUSKAS: I move:

Amendment No 2 [Police–1]—

Page 4, after line 1—Before subclause (1) insert:

(a1) Section 26D(1), penalty provision, (a)—delete 'a minor' and substitute:

under the age of 17 years

Amendment No 3 [Police–1]—

Page 4, after line 3—After subclause (1) insert:

(1a) Section 26D(3), penalty provision, (a)—delete 'a minor' and substitute:

under the age of 17 years

These amendments are proposed for the reasons outlined in amendment No. 1.

Amendments carried; clause as amended passed.

Clause 9.

The ACTING CHAIR (Hon. J.S.L. Dawkins): I call the minister to move both of his amendments, and they are, I am advised, consequential.

The Hon. P. MALINAUSKAS: I move:

Amendment No 4 [Police–1]—

Page 4, line 16 [clause 9, inserted section 26DA(1), penalty provision, (a)]—

Delete 'minor' and substitute 'person under the age of 17 years'

Amendment No 5 [Police–1]—

Page 4, line 27 [clause 9, inserted section 26DA(2), penalty provision, (a)]—

Delete 'a minor' and substitute 'under the age of 17 years'

The amendments are proposed for the reasons outlined previously in amendment No. 1.

Amendments carried; clause as amended passed.

Remaining clause (10) and title passed.

Bill reported with amendment.

Third Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (16:33): I move:

That this bill be now read a third time.

Bill read a third time and passed.