David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Hansard source

I move Liberal Democrats amendment (3) on sheet 8368:

(3) Schedule 1, item 18, page 10 (lines 1 to 13), omit section 9E, substitute:

9E Consent

For the purposes of the application of this Act to an intimate image, consent means consent that is:

(a) express; and

(b) voluntary; and

(c) informed;

but does not include:

(d) consent given by a person who is in a mental or physical condition (whether temporary or permanent) that

  (i) makes the person incapable of giving consent; or

(ii) substantially impairs the capacity of the person to give consent

This amendment prevents a $100,000 fine from being slapped on a person for posting an image of a child if the child consents to the posting of the image. I point out that a child is anyone under the age of 18. Currently the bill states that a child cannot give consent to the posting of their image, so even if a 17-year-old urged their friend or partner, who may also be 17, to post the image, that friend or partner could face a $100,000 fine under the bill as it stands.

If the image depicts a child in a sexual pose or sexual act, or with someone in a sexual pose or act, or if the image depicts a child's sexual organs, anal region or a female child's breasts then the image is child pornography. Regardless of the claims a person who posts such an image makes about consent, posting such an image is a criminal offence punishable by up to 15 years imprisonment, a fine of more than $100,000 or both. The only purpose of ruling out consent by a child in this bill is to impose fines upon a person for posting an image of a consenting child that isn't pornographic. It could be a picture of a child picking their nose or eating their earwax, which seems to be a qualification for becoming a leader of the Labor Party.

I urge senators not to let legitimate concerns about child pornography colour their views about a bill that is not about child pornography. A 17-year-old can consent to the posting of an image of them picking their nose, and the person who does the posting shouldn't face a $100,000 fine for doing so. I commend my amendment to the chamber.