Deborah O'Neill (NSW, Australian Labor Party, Shadow Assistant Minister for Innovation) Share this | Hansard source

Labor will not be supporting this amendment. We acknowledge that the amendment is designed to restrict the application of civil penalties to adults. But we note that the bill is under scrutiny by the Parliamentary Joint Committee on Human Rights, and we also note its report of 6 February this year. The entry for this bill in that report requests the advice of the minister as to whether the severity of the civil penalties that may be imposed on individuals is such that the penalties may be criminal in nature for the purpose of international human rights law. It also seeks advice from the minister as to the nature of penalties: if the penalties are considered criminal for the purposes of international human rights law; whether they're compatible with criminal process rights, including specific guarantees of the right to a fair trial; and the determination of a criminal charge, such as the presumption of innocence. It also refers to the right not to incriminate one's self, the right not to be tried and punished twice for an offence and a guarantee against retrospective criminal laws and whether any limitations on these rights imposed by the measures are permissible and whether the measures could be amended to accord with criminal process rights.

Labor notes that the committee has requested further information from the minister in relation to the penalties under this bill and notes this as further support for a criminal regime for image-based abuse, given the criminal process rights that are afforded to criminal penalties. That aside, Labor notes that the scrutiny by the Parliamentary Joint Committee on Human Rights did not identify any concerns in relation to Australia's obligations under the Convention on the Rights of the Child.

Labor appreciates and understands the value in having a strong legal framework in place to strengthen the eSafety Commissioner's ability to resolve matters informally and formally. We support the introduction of a graduated suite of redress mechanisms, to which the minister has added some flesh in his comments this morning. These responses include issuing removal of infringement notices, seeking a civil penalty order from a relevant court, enforceable undertakings or seeking an injunction for contraventions of the civil penalty provisions.

Labor acknowledges that the Office of the eSafety Commissioner will seek to use established relationships with social media service providers and content hosts to facilitate the taking down images, and, thus, a removal notice or other enforcement action may not be required in every case.

We also understand that the bill affords a number of checks and balances on the impact of the regime on children. Notably, these include affording the eSafety Commissioner discretion around whether an image meets the threshold of being an intimate image and around what responses to use in the event that there is a contravention, taking into account the unique circumstances of each case. These include factors such as the age of the child and the type of image, for example. Only in the most serious of cases, such as repeat offenders, multiple victims or noncompliance by bodies corporate, could the commissioner seek a civil penalty order in the Federal Circuit Court or the Federal Court, where the perpetrators might be fined up to 500 penalty units, which equates up to $105,000 for an individual and up to five times that amount, $525,000, for bodies corporate.

The need to obtain civil penalty orders in a court of law acts as a check on the potential imposition of civil penalties on child offenders. Labor understands that the application of a financial penalty on a minor would be a response of last resort for the repeat offender who has not responded to other redress mechanisms.