Luke Gosling (Solomon, Australian Labor Party) Share this | Hansard source

I rise to support the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2018. Labor supports this bill. We're committed to keeping Australians safe online. In relation to this bill we support the government's intent to combat the non-consensual sharing of intimate images. Over several years we have demonstrated our commitment to opposing this insidious and hateful practice, as we have heard from other members this morning, so we support this welcome initiative by the government. However, as we've also heard, we're concerned that this bill does not go far enough. I will return to that point later.

In 2015 Labor introduced a private member's bill that would make so-called 'revenge porn' a crime. At that time the sponsors of the bill, my friend the member for Griffith and the member for Gellibrand, made the case for the need to make revenge porn a crime. They described a case—regrettably, not an uncommon scenario—of a young woman who fell in love and shared confidences with her partner, but whose first, innocent and trusting love has turned into the partner's overly protective and controlling behaviour and whose trust has been betrayed.

When the young woman suggests she needs to have her own life, perhaps see other people, he pulls out his phone and shows her a picture of them together naked and clearly having sex. That is clearly an intimate and private scene, something to share only with the man she loved. He puts the photo away and tells her that she needs to watch herself. He makes it clear that he has something to hold over her now. If she even thinks about disobeying him or disrespecting him, let alone leaving him, then the photo won't be private anymore. Perhaps the photo was her idea, perhaps his. Either way, she never thought he would betray her trust or would want to hurt her like that. As the members for Griffith and Gellibrand said, no-one wants private images sent around to their friends, family or workmates without their consent. It is beyond embarrassing. It's a horrible sexual violation that can have a serious impact on victims' health and even their personal safety.

Revenge porn is an extreme example of how new technologies are being used to exercise power and control to shame victims and to silence them. It should be a criminal offence. Labor went to the 2016 election promising to legislate to criminalise revenge porn within 100 days of being elected. Unfortunately, that did not happen. We went close but did not quite get over the line. So, in October 2016, Labor introduced another private member's bill, but the government allowed it to lapse in 2017. Labor has a strong record in working to protect Australians online. That is why we support the intent of this bill. The Information Commissioner stated in a submission to the Department of Communications and the Arts:

The non-consensual sharing of these images is a serious invasion of privacy, which has the potential to cause severe harm, distress and humiliation to the victim. Further, the harm that can be caused through the sharing of such images is exacerbated by rapidly increasing technological capacity for capturing images and making recordings, and the ability to distribute digital material on a vast scale.

While the non-consensual sharing of intimate images can often occur as a result of the ex-partner of a victim distributing images of the victim for the purpose of seeking revenge, as in the realistic scenario described by the members for Griffith and Gellibrand, it can also involve acquaintances or complete strangers distributing the images. The practice is generally intended to cause harm, distress, humiliation and embarrassment, whether through the actual sharing and distribution of intimate images or the threat to share, often in an attempt to control, blackmail, coerce or punish a victim. This is sometimes referred to as sextortion. Other motives might include sexual gratification, fun, social notoriety or financial gain. As the Minister for Communications, Senator Fifield, said in the Senate in speaking to this bill:

… Australians are immersing themselves in the online world through social networking sites, online games, smartphones and tablets … the internet is a vital tool for education, research, entertainment and social interaction; however … the internet can be used for the wrong purposes, which can lead to very tragic consequences.

He was referring to online bullying in particular. I agree with the minister that there need to be a range of responses to online abuse, which can take various forms and which can include education, civil and criminal responses and the efforts of government, non-government and community bodies. This bill is one response, and we support it.

Several points made in the bill's explanatory memorandum can be highlighted. The non-consensual posting of an intimate image is a serious breach of a person's right to privacy. The posting of an intimate image without consent is also an attack on a person's reputation. It can have far-reaching consequences for the victim's personal relationships and friendships and may also impact a victim's employment or other prospects which are contingent on their reputation. The Australian public recognise the abhorrence of this practice and the significant harm it causes victims and expect an appropriate regime to be enacted to prevent and minimise harm to victims or potential victims.

The bill amends the Enhancing Online Safety Act 2015 to, among other things, prohibit the posting on the internet of intimate images without consent, establish a complaint system to be administered by the eSafety Commissioner and establish a civil penalty regime to be administered by the eSafety Commissioner. This is where we believe the bill does not go far enough. We believe the bill should criminalise the posting of intimate images without consent. Civil penalties are not a sufficient deterrent for these abhorrent actions. The government says there is no need to introduce a new criminal offence because, under the Criminal Code, it is already an offence to use a carriage service to menace, harass or cause offence. This is a very broad offence and is not well enforced in relation to image based offences.

Labor sought information in Senate estimates about the enforcement of this provision of the Criminal Code. The Australian Federal Police told us that 844 charges have been proved against 410 defendants from 2004 to 2016. I'm sure members will agree with me that this is a very low number, given the pervasive nature of the internet into virtually every part of our modern lives. What is more, it is not possible to tell from these figures how many are offences related to the non-consensual posting of intimate images. We do not know how many of these charges related to this sort of vindictive and malicious posting of sensitive or intimate pictures or videos. There may have been no charges relating to that kind of action.

Then there is the inherent issue with civil action. It puts the onus on the victim, already distressed and humiliated, to take action against the perpetrator, with consequent further distress and expense. In fact a civil regime may make this situation worse. It may encourage the police to refer cases to the eSafety Commissioner instead of prosecuting. In my electorate, the Top End Women's Legal Service in Darwin wrote in its submission to the Senate inquiry:

… criminal offences effectively serve as a symbolic and educative function … a tailored offence … would clearly highlight and reinforce the 'wrongfulness' of … this behaviour …

The government's refusal to make this a criminal offence is out of step with the Australian community.

There is presently a piecemeal approach to this issue across Australia, with no nationally consistent criminal laws. I understand it is a criminal offence in Victoria and South Australia to share an intimate or invasive image without consent or to threaten to distribute such an image. I was pleased to see earlier this year that in the Northern Territory our Labor government has also taken action to criminalise the sharing of, or threats to share, intimate images without consent, introducing a maximum penalty of three years imprisonment. Our attorney-general, Natasha Fyles, said:

We're sending a strong message to the community that image-based abuse is an unacceptable and serious offence with long lasting effects for the victim.

Importantly, under the NT law the shared image does not necessarily have to be sexual in nature to be in breach if it is considered to be a significant invasion of privacy.

Telecommunications services, constitutionally, are a Commonwealth matter. The area of online safety we are considering in this bill is clearly a telecommunications matter where the Commonwealth should take a strong leadership position. The Federal Police told a Senate hearing that 'uniformity in legislation across Australia would be most helpful to police' to be able to investigate and charge perpetrators.

I acknowledge that the major social media platforms have policies and procedures to address the problem of bullying and image based abuse. However, the recent Four Corners program about Facebook has led to doubts about how effective these measures may be, particularly in relation to far right and extremist views. It may be in Facebook's commercial interest to include such extremist material, as it attracts followers and viewers and makes Facebook more attractive to advertisers. I say this because I realise we are not considering racist hate speech and provocative opinions specifically in relation to this bill and that they raise complex questions of freedom of speech, but they do raise doubts in my mind about how far we can rely on the social media platforms to regulate themselves. It reinforces the need to have strong Commonwealth laws to criminalise the non-consensual sharing of intimate images.

Bearing in mind my misgivings about this bill's shortcomings and in particular the unsatisfactory consequence of civil rather than criminal prosecution, I support the bill.

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