Stirling Griff (SA, Nick Xenophon Team) Share this | Hansard source

I rise to speak on the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017. The Nick Xenophon Team supports this bill and welcomes the measures taken by the government to combat image based abuse through the establishment of a civil penalty scheme. Given that only last week we noted Safer Internet Day and the continuation of the inquiry into the adequacy of cyberbullying offences, it is timely that this chamber now turns its attention to this bill.

First I will take a moment to acknowledge the work done by the Office of the eSafety Commissioner to promote online safety. During the course of the hearing last Friday we heard evidence of 100 per cent compliance. This means that every time the commissioner has asked a social media website to remove an inappropriate image, it has done so and, more importantly, it has done so swiftly. That statistic is all the more impressive when you consider that this was achieved not through formal notices or warnings but rather through the use of established working relationships between the office and these organisations. I genuinely thank the office for their efforts in addressing image based abuse and in seeking to ensure that we are all free to engage with family, friends and the world at large without fear of repercussions.

It is, however, a sad reflection on the current state of our society that we require the Office of the eSafety Commissioner at all, and that even during our closest personal relationships we must exercise caution and censorship, because some members of our community have so little respect for the privacy and dignity of others. Let me be clear: the non-consensual sharing of intimate images is abhorrent. The perpetrators of image based abuse are cowards who hide behind the anonymity, invisibility and unfettered freedom that the internet provides, all in an attempt to intimidate, humiliate and control their victims. In the worst cases, we know these individuals are even seeking to profit from the abuse by onselling images to websites or seeking to blackmail their victims. We know that one click of a button can have devastating and lasting consequences for unsuspecting victims, consequences that permeate every aspect of their lives, from personal relationships and employment prospects to even their mental health. We know this, we've heard it time and time again, and now is the time to act.

This bill goes some way towards restoring dignity and empowering victims of image based abuse through the establishment of a civil penalty scheme. This scheme will prohibit an individual from posting an intimate image without consent on a social media service, designated internet service or other relevant electronic service. While that sentence sets out a clear aim, it also includes difficult issues surrounding the definition of both 'intimate' and 'consent'. When tackling image based abuse, consent must be at the forefront of our discussions. We must recognise that consent, once given, may not always remain. A person may initially consent to an image being captured in the context of a loving relationship, but circumstances change and they may no longer feel comfortable for the image to be shared with the wider population.

I pause here to stress that a person should absolutely be entitled to change their mind. We are dealing with images of a deeply personal nature that potentially leave the individual in a frighteningly vulnerable position. That is why I'm pleased to see that this bill provides appropriate pathways for a person to lodge a complaint to the commissioner with respect to an image that they may have originally consented to. I otherwise welcome the government's acknowledgement that 'intimate' can and will vary from person to person, and will ultimately depend on whether, in that particular circumstance, that particular person would have a reasonable expectation of privacy. To use the oft-quoted example, a woman who ordinarily wears religious attire in public would have a reasonable expectation that an image of her would not be shared. Some would say this is political correctness gone too far, but that misses the point completely. This is about respect for one another and offering the same level of protection to all levels of society.

I also welcome the discretion provided to the eSafety Commissioner to utilise non-formal dispute resolution processes, noting that this method has a proven track record of success and recognises that for many victims the primary objective is the removal of the image as soon as possible. However, it is reassuring that the commissioner has been provided with a suite of enforcement provisions to utilise as and when required, including but not limited to the imposition of significant financial penalties. I again note the impressive work of the Office of the eSafety Commissioner and trust that the government will continue to provide sufficient funding to enable the commissioner to carry out her duties.

While NXT supports the introduction of a civil penalty scheme, it is disappointing that the government has not used the opportunity to introduce criminal offences with respect to image based abuse. Such a step would serve two purposes: first, it would acknowledge the seriousness not only of the action itself but also of the consequences that follow from it; and, second, it sends a message to offenders that this behaviour is unacceptable and will not be tolerated by society.

It is this aim that my colleague former senator Skye Kakoschke-Moore sought to highlight when moving a second reading amendment to the bill which successfully broadened the scope of the Office of the eSafety Commissioner last year. Even a cursory glance at the Hansard from that debate reveals that such a step would, hopefully, receive bipartisan support. In fact, it was Senator O'Neill who put the issue so eloquently when she stated:

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 young women in Australia that this behaviour is just not on. The experts agree that we need to criminalise this behaviour now, and Labor calls on the government to act and to act now.

Senator O'Neill then went on to state:

While a new complaints process about so-called revenge porn is welcome, it is not in itself sufficient. There needs to be strong criminal law, making it clear that circulating nude pictures or videos of sex acts without someone's consent, or threatening to do so, is not acceptable. Labor will continue to ensure that so-called revenge porn is criminalised, including by the creation of appropriate Commonwealth offences.

Nicely said, Senator O'Neill!

The opposition's position has again been confirmed in a second reading amendment circulated earlier today. The opposition's second reading amendment calls on the government to criminalise the sharing of intimate images without consent, except for depictions of persons wearing religious or cultural attire. This is precisely what the Nick Xenophon Team propose to do in our amendments. Labor have publicly declared their support for the introduction of uniform criminal offences through the 2016 private member's bill, the 2017 comments and now their second reading amendment. I trust that we can now rely on Labor's support during the committee stage.

The failure to introduce criminal offences last year was very much a missed opportunity. For it to occur a second time would be a tragedy, particularly in the light of the government's strong track record of tackling image based abuse—from the establishment of the eSafety Commissioner and its subsequent expansion to the release of a statement of principles relating to the criminalisation of image based abuse. We simply ask that the government now take the next logical step.

I stress that this would not require a blind leap of faith by the government but would rather be the culmination of a lengthy and detailed process of consultation and review. By way of brief example: the inquiry by the Senate Legal and Constitutional Affairs References Committee into the phenomenon known as 'revenge porn', the final report of the COAG National Summit on Reducing Violence against Women and their Children and the final report from the COAG Advisory Panel on Reducing Violence against Women and their Children have all recommended a uniform approach to criminal offences relating to image based abuse. The current patchwork of state and Commonwealth legislation is totally inadequate. During the course of the Senate inquiry, the Commonwealth Director of Public Prosecutions, the Law Council of Australia and the Australian Federal Police all noted the need for a uniform approach to the non-consensual sharing of intimate images.

I appreciate that legislating this area is not without its complexities, but we as parliamentarians have an obligation to send a clear message that this behaviour does not have any place in our society. For those reasons I intend to move amendments that would introduce into the Commonwealth Criminal Code offences with respect to the non-consensual sharing of intimate images.