Catryna Bilyk (Tasmania, Australian Labor Party) Share this | Hansard source

Before my speech was interrupted, I was saying that my Labor colleagues in the House of Representatives Terri Butler and Tim Watts introduced a private member's bill to create new offences in relation to the use of a carriage service for sharing private sexual material. Sadly, this bill didn't get any further than Mr Watts introducing it and delivering his second reading speech before it lapsed because of the proroguing of parliament. But, despite Labor's private member's bill lapsing, we have continued to pursue this issue.

Labor went to the last federal election promising Commonwealth legislation to criminalise non-consensual sharing of intimate images within the first 100 days of being elected. In October 2016, we reintroduced our private member's bill. However, it was removed from the Notice Paper in May last year because the government continually refused to bring it on for debate. While the national conversation about the need to criminalise this behaviour has gone on for years, the Abbott-Turnbull government has been dragging its feet. This bill comes two years after Labor introduced its private member's bill—two years!—and we've been calling for stronger measures by the Commonwealth to tackle this problem for some time.

I'm in no doubt that my disappointment at the delay in the government's response is shared by the victims of this horrendous behaviour. The non-consensual sharing of intimate images is a gross breach of privacy. What makes this crime particularly horrific is that the consequences for victims can potentially last a lifetime, because once an image has been shared online it becomes almost impossible to retrieve and destroy every copy of that image. Even if the shared content is successfully erased, the victim is left with the fear that the image may still be out there somewhere. And destroying the image does not erase the shame and the humiliation that the victim has suffered.

The Australian Information Commissioner summed up well the impact of this behaviour in a submission to the Department of Communications' consultation on this bill. The commissioner said: '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 victims. Further, the harm that can be caused through the sharing of such images is exacerbated by the rapidly increasing technological capacity for capturing images and making recordings and the ability to distribute digital material on a vast scale.' This behaviour needs to be criminalised because it is a form of abuse. It is an increasingly common manifestation of family violence and it is used by perpetrators to use the threat of humiliation to exercise power and control over their victims.

A recent study published by RMIT in May last year found that a high level of psychological distress was experienced by victims of image based abuse. For many victims this was accompanied by a moderate to severe level of depression and/or anxiety. Twenty eight per cent of victims reported that they feared for their safety as a result of image based abuse. While the number of male and female victims was roughly the same, women were more likely than men to report being fearful for their safety; and those fears were greater when there was a threat to distribute an image, rather than the actual distribution of the image. Women were more likely than men to experience image based abuse from a male perpetrator; and the study suggests that, for women victims, it is more often associated with stalking or domestic violence victimisation.

Another reason for the urgent need to address this behaviour is that it's becoming more and more widespread. In his second reading speech to the House, Mr Watts pointed out that one in 10 Australians reported that someone has posted online or sent to others a nude or semi-nude image of them without their consent. The RMIT study to which I referred earlier, with is more recent, found that one in five Australians has experienced the non-consensual sharing of intimate images. With the problem so widespread and having such a profound impact on its victims there is a compelling case for a strong response. And, as if it isn't bad enough that the Turnbull government has dragged its feet for so long, the bill before us now does not go nearly far enough in addressing this problem.

It is important that the parliament sends a strong message to the community that sharing intimate images without consent is not acceptable. But the message needs to be a lot stronger than just a civil penalty regime. The strength of a criminal offence is not just in the severity of the penalties or the fact that it is the police that take action against the offender; it is also in the statement it makes to the public about the seriousness of the behaviour.

The Top End Women's Legal Service in Darwin, which made a submission to the Senate revenge porn inquiry, pointed out that 'a criminal offence also serves a symbolic and educative function, and a tailored offence would clearly highlight and reinforce the wrongfulness of this behaviour. The government's refusal to make this behaviour a criminal offence is out of step with the Australian community.' The RMIT study I referred to earlier also found that four in five Australians agreed that it should be a crime to share sexual or nude pictures without permission. This attitude is fairly consistent throughout the community, regardless of whether the respondents were victims or not.

This is a gap in the law that has to be addressed. It is currently a criminal offence in Victoria and South Australia to share an intimate or invasive image without consent. It is also an offence in both of those states to threaten the distribution of such an image. Without a Commonwealth offence, this leaves a gap in the law across the remainder of the states and territories. It is just not good enough to leave the legislative response to the states and territories. Like most things that happen in the online environment, it is more appropriately dealt with through the Commonwealth Criminal Code. Not only would a Commonwealth law be a simpler way to ensure national consistency in how these offences are dealt with; it would also make it clearer how these crimes are to be dealt with when they happen across state borders.

The government argues that there is no need to introduce a new criminal offence, because section 474.17 of the Commonwealth Criminal Code makes it an offence to use a carriage service to menace, harass or cause offence. As the RMIT study points out, many legal experts in their research said this offence is broad in scope and is not enforced well when it comes to image based offences. A civil penalty could actually make the situation worse as it may encourage police to refer cases to the eSafety Commissioner instead of prosecuting.

Labor has asked questions in Senate estimates about how many charges have been proven against defendants for non-consensual sharing of intimate images, and the response from the Australian Federal Police was that, for prosecutions brought about by the Commonwealth Director of Public Prosecutions, 844 charges have been proven against 410 defendants between the introduction of section 474.17 in 2004 and 5 December 2016. But it's unclear how many of these prosecutions were for image based offences, and without this information we have no evidence that a significant number or, indeed, any instances of image based abuse are resulting in successful prosecutions by the Commonwealth.

The application of this section to image based abuse was also explored in the revenge porn Senate inquiry. The Australian Federal Police told the inquiry that this section had not been used in relation to non-consensual sharing of intimate images. The Commonwealth Director of Public Prosecutions also gave evidence to the inquiry and raised questions as to how effectively the section could be applied in the context of non-consensual sharing of intimate images. There are a number of aspects of non-consensual sharing of intimate images that were not contemplated in the legislation, such as whether the victim 'held and maintained an expectation of privacy in relation to the image'. The CDPP also pointed out that the section would not apply to image based abuse unless it takes place online, so it would not address behaviour such as sharing hard copies of images. Even if since the inquiry section 474.17 has been tested for image based abuse, considering that one in five Australians report experiencing such abuse, those prosecutions would be a drop in the ocean.

The need for a specific Commonwealth offence was also explored by the RMIT study, which consulted legal experts. The study's report observed:

Overall, in Australia there is a piecemeal legislative approach to image-based abuse, with no nationally consistent criminal laws, the majority of jurisdictions do not have specific offences, and the civil law is out of reach for most Australians without the financial resources to seek justice. The harms associated with image-based abuse further warrant it being specifically classified as a federal telecommunications criminal offence.

The case for a Commonwealth criminal offence is obviously compelling. A civil penalty simply does not go far enough in recognising the seriousness of image based abuse. Introducing a criminal offence sends a strong signal to the perpetrators that not only is the behaviour they're engaging in abuse and unacceptable but it is a crime. While we're disappointed that this bill does not go far enough, Labor will, however, support this bill because it is at least a step in the right direction, and it's better than doing nothing to prevent the hurt and distress that image based abuse causes to victims.

While the bill fails to make non-consensual sharing of intimate images a criminal offence, it includes a number of other important provisions. One of these is a legally enforceable take-down notice to try to remove images from websites. While a take-down notice is a useful mechanism for non-complying content providers, I acknowledge that social media platforms have worked hard to put in place policies and practices that quickly respond to instances of image based abuse. In January 2013, Labor in government signed an agreement with Facebook, Google, Yahoo and Microsoft to develop robust processes to deal with complaints of cyberbullying and to undertake education and awareness-raising activities. Some of the take-down policies of major social media platforms provide for faster removal of offensive content than the 48 hours stipulated in this bill.

The eSafety Commissioner will of course seek to use established relationships with internet service and social media providers to informally seek the taking down of images, but it helps to have enforcement action as a backup option. It's also important to have a one-stop-shop complaints mechanism administered by the eSafety Commissioner, and this bill complements the online complaints portal pilot that was launched by the commissioner last October.

As I've stated, this bill is a step in the right direction, but the government need to go further. They need to send a much stronger message to the perpetrators of this abuse that society will not tolerate their behaviour. Labor believes, and legal experts and the Australian public agree, that there is a need for a specific Commonwealth criminal offence for the non-consensual sharing of intimate images. I urge the government to revisit the private member's bill put forward by Mr Watts and Ms Butler in the House, and to work with Labor on further strengthening our response to the despicable practice of the sharing of intimate images without consent.