May 31, 2017

Crimes Amendment (Intimate Images) Bill 2017

31 May 2017
Second Reading Speech

On behalf of The Greens, I contribute to the second reading debate of the Crimes Amendment (Intimate Images) Bill 2017.

The Greens support the bill, which seeks to amend the Crimes Act 1900 to create specific offences relating to non-consensual recording and distribution of intimate images, or revenge porn. The bill creates an offence of intentionally recording or distributing or threatening to record or distribute an intimate image of another person without that person's consent. The maximum penalty for such an offence is imprisonment for three years or financial penalties. A threat to record or distribute an intimate image without consent is also an offence with the same maximum penalty.

"Intimate image" is defined to include an image of a person's private parts or a person engaged in a private act in circumstances in which a reasonable person would reasonably expect to be afforded privacy. That will be an interesting decision for the courts. Digitally or otherwise altered images are also included. A person's consent to the recording of an intimate image must be freely and voluntarily given. The issue will be the publication of that recording. Likewise, a person only consents to the distribution of an image if they freely and voluntarily do so. People under 16, unconscious or asleep people, or those threatened by force or because they are detained cannot consent. The Greens welcome those exceptions.

Consent on previous occasions is not considered consent for any other occasion. Likewise, consent to the distribution to a particular person cannot be used to assume consent to distribute to any other person. Importantly, the conditions set out do not limit the grounds on which it may be established a person does not consent. It will be up to case law to flesh that out. Prosecutions for the offences of recording and distribution of images where the person to be prosecuted is under 16 years requires the approval of the Director of Public Prosecutions. Where the court finds a person guilty of an offence, they may order them to take reasonable actions to remove or destroy any images recorded or distributed. As the Minister and my colleagues have stated, and as was reported recently in the Guardian, Facebook has wacky guidelines about what is and is not offensive. I will not take the members through them, but this is about privacy laws and police being able to force huge multinational corporations such as Google and Facebook to take down those images.

Exceptions to the offence exist if the conduct was done for a genuine medical or scientific purpose. The typical revenge pornography scenario is one where a person has an intimate or sexually explicit image or video of themselves posted online by an ex-partner without their consent. To me, it says less about technology and more about human nature. If we put into that mix that everyone has a camera on their phone, it is too easy to post these images. In some instances, the material is published to a revenge porn website. It has been reported that at least 3,000 websites feature the revenge genre. As a mother with a daughter aged in her twenties, I find that notion hard to grasp. Recently published research by criminologists and socio-legal academics Dr Nicola Henry, Dr Anastasia Powell and Dr Asher Flynn suggests that one in ten Australians aged between 18 and 55 years have had a nude or semi‑nude image of them sent to others without their permission. One hopes that trend will change dramatically.

The Greens support this bill as part of a package to implement reforms related to so-called revenge porn and privacy more generally. This bill addresses the need for criminal provisions in this area. Both State and Federal committee inquiries have made it clear that there needs to be a statutory ability for people to seek redress directly. During this Parliament's inquiry there were suggestions that the term "image‑based sexual exploitation" was a better description of the distribution of these images. The Greens agree with this assessment. We also note the broad community understanding of this behaviour as "revenge porn". The behaviour that this bill is directed at is a serious form of privacy invasion, most often with women as the targets. Unfortunately, the term "porn" has connotations which may or may not be a deterrent. The Greens believe that the term "image‑based sexual exploitation" connotes the actual crime. The inquiry received compelling evidence that unauthorised sharing of images can be a particular issue for women who are victims of domestic violence.

We need to look at the issue of how police catch those people. For instance, a person can say that someone has accessed their login details and has used their personal computer or laptop and that they themselves did not commit the offence. I will be watching intently as to how these cases are dealt with in the courts. The recording and distribution of intimate images without consent are extremely serious offences. The bill reflects that seriousness by providing for a three‑year maximum sentence. The Women's Legal Service NSW reported to the parliamentary inquiry that 98 per cent of domestic violence workers have clients who have been victims of online harassment. Even when women have the protection of an apprehended domestic violence order that prohibits their former partner from physically assaulting or intimidating them, some vindictive former partners will turn to online intimidation by spreading intimate details and images on social media. This issue is about access.

More often, our private lives are being photographed and filmed by our friends, partners and families. People are often happy to share this material, but sometimes it can be deeply personal images or information that should be shared only with an intimate partner. As the Minister said, we can say repeatedly to our children, "Do not do it". The issue is that people are sharing intimate moments without the permission of others. The ability for courts to require material to be taken down is a recommendation of the inquiry, and that provision is included in the bill. However, the bill does not guarantee that such images will be removed from the internet. There is much to be done to achieve this aim. Most of us go on Facebook. People, particularly young persons, experience pain and suffering when they find out that intimate images of them have been posted online, even if the images are false. It can take years for those images to be removed, which is outrageous. In the meantime, the victims suffer from the damage that the online images have caused.

The Greens will closely monitor the implementation of this scheme. In particular, we highlight the need for police across New South Wales to be trained in how to deal with people, particularly women, who report this kind of abuse, which generally happens online. I am sure police do not minimise this behaviour, but it is a common occurrence. We need specialist officers to deal with not only cyber crime but also these smaller insipid crimes. Police must have the expertise to identify trends: this offence is often perpetrated by a small group in a school, for example. The Greens will closely monitor the issue of appropriate resources for police. During the inquiry, Liz Snell from Women's Legal Service NSW gave evidence that the service has seen a significant increase in technology‑facilitated stalking and abuse. She said:

In particular, we are seeing a concerning trend of technology being regularly used against women by perpetrators as a tactic within a wider context of domestic violence ...

Let us hope that the bill is a tool in addressing this growing issue. I commend the bill to the House.

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