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

by leave—I move Liberal Democratic Party amendments (5) and (6) on sheet 8368:

(5) Schedule 1, item 26, page 16 (lines 23 to 26), omit the note.

(6) Schedule 1, item 26, page 16 (after line 26), after subsection 44B(2), insert:

(2A) Despite section 96 of the Regulatory Powers (Standard Provisions) Act 2014, in proceedings for a civil penalty order against a person for a contravention of subsection (1), the person does not bear an evidential burden in relation to the matter in subsection (2) of this section.

Despite the bill's title, the bill doesn't ban the non-consensual sharing of intimate images; instead, the bill bans the sharing of intimate images and then provides an exception for instances where the depicted person consents. This drafting approach matters because it puts the onus on the person facing the $100,000 fine to prove that the depicted person consented to the image being posted. It would be difficult for either side of a dispute about a posted image to prove consent or the absence of consent. In some cases, there'll be evidence confirming conversations about plans to post the image but in many cases there will be no such evidence.

I refer to my example of the nose-picking contest—if somebody disagrees or disputes that they posted consent. That highlights the difficulties. The difficulties don't justify reversing the well-founded convention that the party seeking to impose a penalty must prove behaviour in the circumstances that would justify such a penalty. My amendment would simply undo the reversal of the onus of proof. I'm hoping the Senate could be clear eyed on this matter, particularly given that revenge porn involves allegations about female perpetrators as well as male perpetrators. I commend the amendments.