Tim Watts (Gellibrand, Australian Labor Party) Share this | Hansard source

I rise to speak in support of the bill before the House today, which has the primary function of changing the name of Children's eSafety Commissioner to eSafety Commissioner, to reflect its broader remit. The Enhancing Online Safety for Children Amendment Bill 2017 primarily broadens the general functions of the existing Children's eSafety Commissioner to cover the online safety of all Australians, not just that of Australian children. This is a worthy agenda. When the Children's eSafety Commissioner was first established, I did ask the House why our commitment to dealing with abusive behaviour towards Australian women stopped when they turned 18. Recognising the breadth of this issue is worthwhile.

Before I tackle the specifics of the bill, it is important to recognise that this represents a broader trend in our society. You do not need to be paying too much attention to what is going on in the online space to appreciate that women, particularly those with a significant public profile, are currently the targets of enormous abuse and threats and intimidation online. Unfortunately, these threats are not mere words. They are words that go to very specific threats of physical violence against women, words that amount to the new, noxious practice of doxing—that is, publicly revealing the identity and physical location of the women being threatened. It is very, very intimidating behaviour that has a significant impact on women. The reality is that, to date, this kind of behaviour has not been taken seriously by law enforcement or by policymakers in general. What happens if you are a woman going into a police station to complain about online threats, abuse and intimidation can be a bit of a lottery. There is a lot of research that shows that the experience of women in these situations varies enormously, depending on which station you make the complaint at or depending on who the officer on watch was.

In this respect, changing to an eSafety Commissioner with a general remit is valuable, because we have an important culture-change task in front of us. We need to really get the message through to law enforcement and to policymakers that this kind of online behaviour can have significant impacts—impacts that can be just as significant as if these threats, abuse and intimidation were happening in real life, physically.

Labor welcome this name change to the eSafety Commissioner, and the expansion of the role to cover adults as well as children. The change in title is sensible, as it is not just children but also adults that are at risk. This bill will expand the role of the office to deal with issues broader than children's issues, which is also sensible. This includes expanded responsibility to take a leading role in combating the non-consensual sharing of intimate images, commonly referred to as 'revenge porn'.

Whilst we support this expansion, we believe that the most appropriate approach, the best approach, to dealing with revenge porn would have been to criminalise these acts some time ago, at the Commonwealth level. Australian laws have failed to keep pace with the new ways that technology is being used to cause harm, particularly to women, and the law should have been brought up to date and must be brought up to date as a matter of urgency. Revenge porn is one of the ugliest manifestations of the trend towards online abuse of women that I was talking about earlier, and it is important that the parliament as policymakers send a strong message to the community that the sharing of private sexual images without consent is wrong, and wrong in the clearest terms. The easiest way to send this message would be to enact Commonwealth legislation to criminalise this behaviour.

While, historically, we have considered family violence and abuse to be physical, psychological and emotional, in the 21st century family violence has also gone digital, and it has serious impacts on victims' mental health. There are a wide range of methods that revenge porn can be distributed: texting private images to friends, colleagues or family members; publishing images on social media sites; even uploading images to commercial pornographic websites. Indeed, it takes just four clicks on a computer to upload a photo to Facebook. That is how quick and simple it is to share an explicit photo of someone without his or her consent—four clicks to maliciously rob a person of their privacy, of their human dignity, and to inflict a digital form of sexual assault on them.

The mental and emotional toll of revenge porn is staggeringly high. Victims experience increased anxiety, and the research suggests they experience this anxiety acutely when they are doing activities that will subject to them to online scrutiny—for example, applying for a job, with the stress that potential employers might come across this material, which is frequently published with the names and contact details of the victims.

Private sexual images, and the threat to share them, are often used to control, humiliate and abuse individuals. While this practice is commonly referred to as revenge porn, it is clear that the sharing of these images without consent, or threats to share them, occurs in a much wider range of scenarios than a simple desire to inflict revenge. As the Sexual Assault Support Service recognises:

Revenge is not the only motive to consider. Perpetrators of the behaviour may seek notoriety or financial gain, or believe that they are providing entertainment for others. Some perpetrators may intend to cause emotional harm to their targets and humiliate them, while others will give little or no thought to potential impacts.

The problem of revenge porn is complex and not only limited to the publishing of sexually explicit material intending to intimidate or humiliate people in the context of a relationship breakdown.

Laws criminalising revenge porn have been slow to emerge. A leading expert in the field, Dr Nicola Henry, said: 'image-based abuse has emerged so rapidly as an issue that inevitably our laws and policies are struggling to catch up'. The law can often lag behind advances in technology, but in this instance it is causing real harm in the community.

Labor has been working on a solution to this issue since 2015. In October 2015 the member for Griffith and I introduced into parliament a bill to criminalise the non-consensual sharing of private sexual images. Shortly after we introduced this bill, the Senate Legal and Constitutional Affairs Committee established an inquiry into this issue. During the inquiry the Commonwealth Director of Public Prosecutions expressed concerns regarding the limitations on existing Commonwealth laws to adequately deal with revenge porn. As part of the Commonwealth DPP's submission they acknowledged that existing Commonwealth laws capture only part of the conduct that is encompassed by the sharing, or the threats to share, revenge porn. The submission confirmed that 'there are limitations on existing Commonwealth laws to adequately deal with 'revenge porn' conduct'.

The status of revenge porn legislation in Australia is strictly drafted at the state level and it is patchwork at best. Currently there is no federal legislation that criminalises revenge porn. Most states do not currently have legislative mechanisms in place to protect victims from cyber-abuse of this kind. South Australia and Victoria are the only two states that have passed revenge-porn-specific legislation. Victoria passed the Crimes Amendment (Sexual Offences and Other Matters) Bill in August 2014, which criminalises non-consensual sharing and also provides protection to young people who take and share images of themselves consensually. Between August 2014 and July 2016 174 offences had been recorded and around 29 per cent involved young people aged between 10 and 17. Western Australia passed the Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016 to criminalise cyber-stalking and revenge porn. The act received royal assent on 29 November 2016. Queensland has no specific revenge porn laws; however, Queensland Attorney-General Yvette D'Ath said the state government was working with other jurisdictions on this matter.

The general point here is that the Commonwealth Director of Public Prosecutions said that a Commonwealth offence targeting revenge porn would 'fill a gap within the existing law'. The Australian Federal Police said that 'uniformity in legislation would be most helpful for police' so that they can investigate and charge perpetrators. However, the Turnbull government has delayed and delayed on this issue. In early 2016, before the Senate inquiry had even released its report, the Minister for Women wrote to the opposition to indicate the government would not be supporting Labor's bill and that instead they would be pursuing the COAG process. In February 2016 the committee published its detailed report, which called for Commonwealth legislation that created offences relating to revenge porn. This was still not enough for the government and they continued to refuse to act. With the passage of time, the COAG Advisory Panel released its report, in April 2016, which stated:

Existing laws that govern such offences do not adequately capture the scope or nature of these offences. To clarify the serious and criminal nature of the distribution of intimate material without consent, legislation should be developed that includes strong penalties for adults who do so.

The COAG panel explicitly recommended criminalising revenge porn:

All Commonwealth, state and territory governments should introduce legislation that reinforces perpetrator accountability by removing uncertainty and explicitly making it illegal to use technology to distribute intimate material without consent.

Governments should:

•   introduce and enforce strong and consistent penalties for adults who distribute intimate material without consent

•   improve community understanding of the impacts and consequences of distributing intimate material.

Despite the government saying it would wait until the COAG panel produced its report before making its decision, the government has still not legislated 12 months on. As a result, Labor re-introduced our private member's bill in October 2016.

There remains an urgent need for criminal penalties for offenders nationwide. Indeed, in the week that this bill was introduced into this parliament, research was released on the prominence and severity of this issue. RMIT and Monash University surveyed close to 4½ thousand people about their experiences with image based abuse. Their findings document the 'mass scale of victimisation' and the impact it has on victims' lives. According to this research, one in five people who were surveyed had been victims of some kind of revenge porn. Young people--aged 16 to 19—were the most vulnerable, with one in three reporting some form of image based abuse. Minority groups were also found to be much more vulnerable, with one in two Indigenous Australians, one in two Australians with a disability and one in three LGBTIQ Australians reporting having suffered victimisation of this kind. Even the researchers themselves were surprised at the number of people who had their private sexual images distributed or taken without their consent or used against them in other ways. There is a clear need for parliament to send a very clear message to the general community that this behaviour not only is wrong but should attract a criminal sanction.

The study also found that women are more likely than men to be victims of image based abuse by a former partner or intimate partner. Importantly, they are also more likely to fear for their safety as a result. Dr Anastasia Powell from RMIT, one of the lead researchers, noted:

Victims do report experiencing this as a form of sexual violation or sexual violence.

The researchers found that upon discovering that their private images were publicised victims felt that it had 'constituted a violation of their sexual autonomy and dignity'. This has obvious and difficult long-term repercussions, and overall those who had suffered image based abuse were almost twice as likely as nonvictims to report experiencing high levels of psychological distress. This report, the first of its kind in Australia, recommends criminalising revenge porn at the federal level to provide cover for existing piecemeal state laws It found overwhelming support for criminalising the distribution of private or invasive images without consent. Four in five of those surveyed agreed that it should be a crime.

The statistics in this report reflect what is occurring overseas. More than 200 people have been prosecuted in the UK since revenge porn laws were enacted in 2015. According to UK police forces there were around 1,200 reported incidents of revenge porn from April 2015 to December 2015. And these are just the numbers we know publicly. Actions of this kind are deeply personal and often go unreported or underreported. Without strong laws that send a very clear message, revenge porn will continue to be underreported or unreported. It is unacceptable that victims currently do not feel protected by the existing law.

We must as a parliament treat this issue seriously. By challenging the blame that is often directed at victims we can direct cultural change in the broader community. We can move away from a culture that tells women to police their own behaviour and move away from comments about a woman's conduct when she is a victim of a violation of this kind. It is never a victim's fault when they are the subject of a sexual attack or sexual abuse of this kind. A woman who has had her private sexual images distributed without her consent has done nothing wrong. The perpetrator here—the person responsible, the wrongdoer—is the person who is acting without consent.

Criminalising these acts would send a clear message that this behaviour will not be tolerated by this parliament or in this country. If we change the law, this can be a first step in changing community perceptions of this conduct. The law can shape social norms and affect community attitudes, but it is up to parliamentarians like us to send the message that this behaviour is not accepted in the community. Commonwealth legislation on this matter will send a clear signal to young men and women in Australia that this behaviour is not on.

So, I do call on the Turnbull government to act now to send this clear message that non-consensual sharing of private sexual material will not be tolerated. The experts agree that we need to criminalise this behaviour now, and I call on the parliament to act. In the interim, in the meantime, I support the passage of this bill and commend the work of the former Children's eSafety Commissioner, soon to be the eSafety Commissioner, in driving cultural change and the general powers of that body in the community. I do, however, note that the financial impact of this significant broadening of the responsibility of the eSafety Commissioner is listed by the government as zero, so I do wonder whether we are providing adequate ammunition to the eSafety Commissioner to perform these much broader functions. But I am sure that time will tell as we see the operation of the commissioner. I commend the bill to the House.

See this speech in context