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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-09-20 Daily Xml
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Bills

Summary Offences (Filming and Sexting Offences) Amendment Bill

Final Stages

Consideration in committee of the House of Assembly's message:

The House of Assembly agreed to amendments Nos 1 and 3 to 7 made by the Legislative Council without any amendment and disagreed to amendment No. 2.

(Continued from 5 July 2016.)

The Hon. P. MALINAUSKAS: I move:

That the council no longer insists on the amendment.

The Hon. A.L. McLACHLAN: I am going to articulate the Liberal Party position, which in this instance will obviously be contrary to the view of the government. The Liberal Party submits that the honourable member should support the motion when it is put in the positive that the Legislative Council insist on its amendment in respect to the definition of 'media'.

The Liberal opposition is supportive of the amendments to the Summary Offences Act as they relate to sending sexually explicit material normally via mobile phones and an increasing incidence of what is called 'revenge pornography', which was the originating bill. The Liberal opposition seeks to further amend the Summary Offences Act to update the definition of 'media organisation'. The existing definition does not accommodate legitimate media organisations, for example, InDaily, The West Australian newspaper and Yahoo7.

The definition we seek to insert is consistent with the definition used in the jurisdiction of the commonwealth and was recently adopted by this chamber and the other place in the recently legislated Surveillance Devices Act. We consider that definition to be the most appropriate to accommodate the ever-changing media landscape. At the same time, we have not sought to insert an amendment that would unreasonably expand the definition to include activities of individuals or groups in the public realm that the community would not consider to be legitimate media.

I note that some honourable members were concerned that the definition proposed by the opposition was too wide and that the narrow definition was more appropriate given the context of the Summary Offences Act. This is certainly the view of the government. I do not find it a cogent or persuasive argument. The definition of 'media organisation' should be consistent in our laws regardless of legislative context. If you accept the government's arguments, you are in effect accepting the concept that there are distinct groups within the media, some more trustworthy than others.

I do not believe that the case has been made out for such a proposition. News media play an important role in introducing our citizens to views they do not hold and which they are unlikely to encounter in their own communities or social circles. Section 26B of the Summary Offences Act prohibits a person from engaging in humiliating or degrading filming. It is a defence if the conduct was for legitimate public purpose. One of the legitimate public purposes listed in the act includes for the purpose of educating and informing the public. Others include for law enforcement or public safety or for medical, legal or scientific purposes. The act anticipates that there will be, on occasion, legitimate reasons for disclosure.

The Liberal opposition is not seeking to expand the class of those things that constitute a legitimate public purpose. In the act, the media are presumed to have engaged in conduct that was a legitimate public purpose unless a court determines otherwise. Again, we are not seeking to change this test, rather we seek to simply recast the definition of a media organisation to institutions that would include media outlets, such as InDaily, to enable them to report in an appropriate manner.

Despite the presumption in favour of the media, media organisations are still required by law to engage in conduct that educates and informs the public. This legal requirement is not diminished by the opposition's amendment. It is important that in a working democracy our laws are clear and consistent. By not insisting on this amendment, we will have laws that apply different tests to what is a legitimate media organisation in different pieces of legislation.

In a society that values the rule of law, this is not acceptable. These amendments simply seek to provide consistent terminology so that those in the media can carry on their important work with confidence. I ask honourable members to insist on the amendment and to vote in favour of the motion as it is put in the positive.

The Hon. T.A. FRANKS: I indicate that the Greens will also support the insisting of the amendment for the definition of 'media'. This is actually a 21st century bill. It has 'sexting' in the title; how can we have a definition of media that is stuck in the 20th century rather than firmly put in the 21st? I note that the commonwealth privacy legislation uses this particular definition that we are insisting on, and that has been well consulted and, indeed, is strongly supported by the Greens

The Hon. D.G.E. HOOD: I indicate that Family First's position is unchanged, and that is that we will not be insisting on the amendment.

The Hon. J.A. DARLEY: I indicate that I will not be insisting on the amendment.

The PRESIDENT: I am going to put the question in the positive. I put the question that the amendments be insisted on.

The committee divided on the motion:

Ayes 9

Noes 10

Majority 1

AYES
Dawkins, J.S.L. Franks, T.A. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. McLachlan, A.L. (teller)
Ridgway, D.W. Stephens, T.J. Wade, S.G.
NOES
Brokenshire, R.L. Darley, J.A. Gago, G.E.
Gazzola, J.M. Hood, D.G.E. Hunter, I.K.
Maher, K.J. Malinauskas, P. (teller) Ngo, T.T.
Vincent, K.L.
PAIRS
Parnell, M.C. Kandelaars, G.A.

Motion thus negatived.

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