Louise Pratt (WA, Australian Labor Party, Shadow Minister for Environment and Water (Senate)) Share this | Hansard source

In lending Labor's support today to the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017, I recognise what an important issue this is for us to be talking about. It is the unfortunate experience of one in five Australians to have had such non-consensual sharing of intimate images happen to them. As others have highlighted, it includes one in two people with a disability and one in two Indigenous Australians. The vast proportion of those images have been of women.

As we know, this bill prohibits the non-consensual sharing of intimate images and does at least go some way in deterring people from engaging in this extraordinary behaviour. We understand that it has a civil penalty regime attached to it and provides the eSafety Commissioner with stronger frameworks to resolve these questions. However, like Senator Steele-John, I highlight the minimal resources that the eSafety Commissioner currently has for undertaking this kind of work. We see that the commissioner can seek civil penalties of up to $105,000, or over $500,000 for body corporates.

In Labor's view these changes are important, but we don't believe that they go far enough. They don't go far enough in terms of protecting Australians from online exploitation and abuse, and we should be clear that this is exactly what non-consensual sharing of intimate images is—exploitation, humiliation and abuse—and it needs to be treated as such. I have seen firsthand the great harm and distress that these acts cause to victims. We must ensure that our laws reflect this harm. We want the government to send a clear message to Australians that sharing these images without consent is completely unacceptable. On this side of the chamber, we certainly believe that making the sharing of non-consensual images a crime would be the right way forward from here.

We know that the sharing of these images is used to exploit and exercise power over others, both within and outside relationships. It is an extreme example—a very real one, and one that some of my very own friends have experienced—of how some men exercise power and control over women with whom they have had relationships. It is a tool used by perpetrators of family violence to exercise control over victims, be they their partners or their former partners. It is a form of revenge, a form of blackmail, a form of coercion, and, indeed, a form of ongoing abuse to denigrate and harm the reputation of former family members.

So it's not only the sharing of these images that concerns us but the creation of content in a whole range of ways. Indeed, as others in this place have highlighted, we've seen that often the sharing of intimate images is combined with such acts as hacking and the placing of stalker apps on partners' phones. There are a whole series of behaviours that we need the law to capture. These are issues that Senator Cash should recognise. We also have concerns about the recording of sexual assaults and consensual acts as well as threats to distribute images. It's not just images but the recording of video et cetera that's of concern to us.

We know that image based abuse is part of a much broader set of behaviours around digital harassment. In my own experience I have seen that it is on the rise. I've seen my own friends who have had their Facebook accounts hacked into, or who have had stalker apps put on their mobile phone so that former partners can track their movements. It is an ever-growing use of technology and social media to perpetuate family and domestic violence and abuse. As the risks of these behaviours rise, so do the extreme impacts on victims and their families. It's becoming easier and easier to create and share online images.

Governments must think carefully about the role they play in preventing this abuse and how we deal with this kind of offending. We on this side of the chamber take this issue very seriously. We promised to legislate to criminalise revenge porn within the first 100 days of being elected. In 2015 Labor MPs introduced a private member's bill to amend the Criminal Code and make the non-consensual sharing of images an offence. I'm proud of that. Sadly, the bill lapsed in 2016 after the prorogation of parliament, but it was reintroduced in October 2016. It was removed from the Notice Paper in May 2017, because the government wouldn't call it on for debate. So I'm pleased that this legislation is before us today but I call on the government to be more proactive and to take these issues seriously.

Currently I'm chairing a Senate inquiry into cyberbullying. The concerns being raised before that inquiry really highlight that the extent of the issues before us requires ongoing engagement and reform of our laws. It has been more than two years since Labor first proposed measures to protect people from the sharing of these images. While we're pleased to see the bill before us, the government has been too slow in acting. Given the broad range of issues regarding cyberbullying and harassment that are also up for public debate, the nexus of digital harassment in the context of domestic violence, the harassment of public figures and journalists—the whole range of cyberbullying that's taking place—I call on the government to be more proactive in this space. It's taken far too long. It's clear that this bill is not a tough response and that this issue has not been a priority for the Turnbull government. The sharing of the images should be a criminal offence. I note that the explanatory memorandum of the bill says:

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.

And, as others have highlighted, four out of five Australians agree that it should be a criminal offence. That research is from RMIT.

It's good that the EM states that, but the EM is not a true reflection of the wishes of the Australian public, because there is broad agreement from the Australian public that this should be a crime. So why won't the government do this? Why, when the EM of the bill quotes this very research, is the government not taking this stronger action? While these abhorrent acts are not criminal in Commonwealth law, it sends a message to victims, police and perpetrators that the sharing of intimate images without consent is not a crime. Victims should have the option of enacting criminal proceedings should they wish to do so. Indeed, it creates confusion between the states and the Commonwealth, noting that the Commonwealth has a different regime to the states. I'm concerned that, without a clear Commonwealth offence, a civil penalty regime may simply encourage police to refer cases to the eSafety Commissioner rather than prosecute offenders.

I note that in 2015 the Senate Legal and Constitutional Affairs References Committee found that existing Commonwealth laws are inadequate in dealing with revenge porn. Submissions by the then Commonwealth DPP noted that existing laws capture only part of the conduct and that there are limitations on Commonwealth laws to adequately deal with revenge porn conduct. The AFP has also said that uniform legislation across Australia would be helpful to police in investigating revenge porn and charging perpetrators. It does create confusion for police in state and other jurisdictions when they're weighing up their state laws and, indeed, the Commonwealth laws at the same time.

The COAG Advisory Panel on Reducing Violence against Women and their Children released a report in 2016 that said:

… 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 panel explicitly called on the Commonwealth to do a number of things. These included, firstly, introducing legislation that reinforces perpetrator accountability by removing uncertainty and explicitly making it illegal to use technology to distribute intimate material without consent; secondly, introducing and enforcing strong and consistent penalties for adults who distribute intimate material without consent; and, thirdly, improving community understanding of the impacts and consequences of distributing such intimate material.

Currently, the federal Criminal Code makes it a criminal offence to use a carriage service to menace, harass or offend another person. But the problem is that this legislation is not designed to respond to this kind of behaviour. Many experts, including senior lecturers from Monash, La Trobe and RMIT, have said it's not being used for these kinds of acts; it's not actually capturing the sharing of intimate images or other kinds of cyberbullying and harassment.

Some research has also shown there are issues in the law about the intention behind a behaviour and whether someone intended to menace, harass or cause offence. As such, there's a problem with legal grey areas in the existing Commonwealth law. We need clear and strong laws that take action on image based abuse. Instead, what we have is a patchwork of laws that creates confusion and, indeed, limits options for victims in our country.

There's been, as I've highlighted before, some progress in different states towards criminalising this conduct. Victoria and South Australia have made this an offence. In New South Wales also it is an offence to record or distribute images without consent. Western Australia has passed laws allowing a family violence restraining order to be used in cases of non-consensual sharing of intimate images. This is a very important factor that other states should also be taking account of and that the Commonwealth should be taking account of, using its telecommunications powers to actually be directly involved in the prevention of domestic violence and family abuse with the sharing of these images.

So some, but not all, jurisdictions have taken action and there are gaps across the country. Some state and territory laws have no specific criminal offence for this kind of behaviour at all. This is why we need to see leadership from the Commonwealth to work with the states to provide consistency in order to provide protection where there are inconsistencies from state to state. The AFP and others have called for this so that we can properly catch perpetrators and get better community understanding of why it is wrong to commit these kinds of acts.

In states where there is no specific criminal offence it is very difficult for victims to have any recourse. They have simply no recourse. Civil law is a costly exercise which is out of reach for most ordinary Australians. Criminal laws would allow all victims, no matter where they live, no matter how much money they have, to take action if they wish to do so. There are already too many barriers for victims in this space. No matter where they live, no matter how much money they have, it should be the right of victims to be able to take action. There is a lack of understanding of our laws, a fear of a lack of resources and a fear among victims of backlash should they take action. The lack of clear criminal law should not be a further barrier.

I don't want to see us take a piecemeal approach to this very serious issue. The reality is that our current laws are failing victims. There are too many victims in our nation who embark on very long and tough battles for justice and many don't even get their chance. The cases are complex, often in uncharted legal territory, and there are doubts about how our justice system can deal with them. We know that social media platforms themselves are doing some work to remove these images and to prevent them from being disseminated; they are very active in doing this. We note that Facebook is working with the government in a pilot project to detect when inappropriate images are uploaded. There is a lot of work to attempt to control online abuse, and other platforms are following Facebook and other organisations to do this. But unless people are held accountable, unless people are criminalised for this act, unless the government takes strong action, the work of organisations and companies like Facebook, Twitter, Instagram and many others can only go so far.

The burden in our nation cannot, and should not, sit with victims. The government must set expectations about behaviour and show that image based abuse and the non-consensual sharing of intimate images should not be tolerated in our nation in any way at all. We need a national approach, a Commonwealth criminal offence, to address these issues. I join with those who call on the Turnbull government to criminalise the non-consensual sharing of intimate images as a matter of priority.