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

I move the Nick Xenophon Team amendment on sheet 8371:

(1) Page 27 (after line 18), at the end of the Bill, add:

Schedule 2—Amendments to the Criminal Code Act 1995

Criminal Code Act 1995

1 Section 473.1 of the Criminal Code

Insert:

intimate image has the meaning given by section 9B of the Enhancing Online Safety Act 2015, but does not include an intimate image under subsection 9B(4).

2 After Subdivision D of Division 474 of the Criminal Code

Insert:

Subdivision DA—Offences relating to use of carriage service for transmitting, etc. intimate images

474.24D Concurrent operation intended

(1) This Subdivision is not intended to exclude or limit the concurrent operation of any law of a State or Territory.

(2) Without limiting subsection (1), this Subdivision is not intended to exclude or limit the concurrent operation of a law of a State or Territory that makes:

(a) an act or omission that is an offence against a provision of this Subdivision; or

(b) a similar act or omission;

an offence against the law of the State or Territory.

(3) Subsection (2) applies even if the law of the State or Territory does any one or more of the following:

(a) provides for a penalty for the offence that differs from the penalty provided for in this Subdivision;

(b) provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Subdivision;

(c) provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Subdivision.

474.24E Using a carriage service for transmitting, etc. intimate images

(1) A person commits an offence if:

(a) the person transmits, makes available, publishes, distributes, advertises or promotes material; and

(b) the material is an intimate image; and

(c) the person engages in the conduct mentioned in paragraph (a) without the consent of a subject of the material; and

(d) the person knows of, or is reckless as to, the subject's lack of consent; and

(e) the person engages in the conduct mentioned in paragraph (a) using a carriage service.

Penalty:

(a) in the case of an aggravated offence (see section 474.24H)—imprisonment for 5 years;

(b) in any other case—imprisonment for 3 years.

Transmission etc. to subject of material

(2) In a prosecution for an offence against subsection (1), the prosecution must prove that the conduct mentioned in paragraph (1) (a) did not consist solely of a transmission, making available, publication, distribution, advertisement or promotion of an intimate image to a subject in the intimate image.

Consent

(3) For the purposes of paragraph (1) (c):

(a) a subject in an intimate image consents to the conduct mentioned in paragraph (1) (a) if the subject gives either:

  (i) a general consent covering conduct of the kind engaged in by the first person;

Or

  (ii) consent to the particular instance of conduct engaged in by the first person; and

(b) the consent may be given expressly or by necessary implication.

Use of carriage service

(4) Absolute liability applies to paragraph (1) (e).

Note: For absolute liability, see section 6.2.

Defences

(5) As well as the general defences provided for in Part 2.3, defences are provided for under section 474.24J in relation to this section.

Definitions

(6) In this section:

consent means free and voluntary agreement.

474.24F Using a carriage service—making a threat about intimate images

(1) A person (the first person) commits an offence if:

(a) the first person makes a threat to another person (the second person) to transmit, make available, publish, distribute, advertise or promote an intimate image of which the second person or a third person is a subject; and

(b) the first person intends the second person to fear that the threat will be carried out; and

(c) either or both of the following apply:

  (i) the first person makes the threat using a carriage service;

  (ii) the threat is to transmit, make available, publish, distribute, advertise or promote the intimate image using a carriage service.

Penalty:

(a) in the case of an aggravated offence (see section 474.2411)—imprisonment for 5 years;

(b) in any other case—imprisonment for 3 years.

Actual fear not necessary

(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the person receiving the threat actually feared that the threat would be carried out.

Intimate image need not exist

(3) For the purposes of subsection (1), it is irrelevant whether the intimate image actually exists.

Use of carriage service

(4) Absolute liability applies to paragraph (1)(c).

Note: For absolute liability, see section 6.2.

Definitions

(5) In this section:

fear includes apprehension.

474.24G Possessing, controlling, producing, supplying or obtaining an intimate image for use through a carriage service

(1) A person commits an offence if:

(a) the person:

(i) has possession or control of material; or

(ii) produces, supplies or obtains material; and

(b) the material is an intimate image; and

(c) the person has that possession or control, or engages in that production, supply or obtaining, with the intention that the material be used:

(i) by that person; or

(ii) by another person;

in committing an offence against section 474.24E (using a carriage service for transmitting, etc. intimate images) or 474.24F (using a carriage service—making a threat about intimate images); and

(d) the person has that possession or control, or engages in that production, supply or obtaining:

  (i) for a commercial purpose; or

  (ii) for the purpose of obtaining (whether directly or indirectly) a benefit.

Penalty:

(a) in the case of an aggravated offence (see section 474.24H)—imprisonment for 10 years;

(b) in any other case—imprisonment for 5 years.

(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 474.24E or 474.24F is impossible.

(3) It is not an offence to attempt to commit an offence against subsection (1).

474.24H Aggravated offences

(1 ) For the purposes of this Subdivision, an offence committed by a person (the offender) where the intimate image is of a person who is, or the offender believes to be, under 16 years of age is an aggravated offence.

(2) If the prosecution intends to prove an aggravated offence, the charge must allege the relevant aggravated offence.

(3) If, on a trial for an aggravated offence, the trier of fact is not satisfied that the defendant is guilty of the aggravated offence, but is otherwise satisfied that the defendant is guilty of the corresponding (non-aggravated) offence against section 474.24E, 474.24F or 474.24G, it may find the defendant not guilty of the aggravated offence, but guilty of the relevant corresponding offence.

(4) Subsection (3) only applies if the defendant has been afforded procedural fairness in relation to the finding of guilt for the corresponding (non-aggravated) offence against section 474.24E, 474.24F or 474.24G.

474.24J Defences in respect of intimate images

Public benefit

(1) A person is not criminally responsible for an offence against section 474.24E (using a carriage service for transmitting, etc. intimate images) or 474.24G (possessing etc. an intimate image for use through a carriage service) because of engaging in particular conduct if the conduct:

(a) is of public benefit; and

(b) does not extend beyond what is of public benefit.

In determining whether the person is, under this subsection, not criminally responsible for the offence, the question whether the conduct is of public benefit is a question of fact and the person's motives in engaging in the conduct are irrelevant.

Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).

(2) For the purposes of subsection (1), conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in:

(a) enforcing a law of the Commonwealth, a State or a Territory; or

(b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or

(c) the administration of justice; or

(d) conducting scientific, medical or educational research that has been approved by the Minister in writing for the purposes of this section.

Media activities

(3) A person is not criminally responsible for an offence against section 474.24E (using a carriage service for transmitting, etc. intimate images) or 474.24G (possessing etc. an intimate image for use through a carriage service) because of engaging in particular conduct if:

(a) the person engaged in the conduct for the purposes of collecting, preparing for the dissemination of, or disseminating:

(i) material having the character of news, current affairs, information or a documentary; or

(ii) material consisting of commentary or opinion on, or analysis of, news, current affairs, information or a documentary; and

(b) the person did not intend the conduct to cause harm to a subject of the material; and

(c) the person reasonably believed the conduct to be in the public interest.

Note: A defendant bears an evidential burden in relation to the matter in this subsection, see

subsection 13.3(3).

Duties of law enforcement officer, or intelligence or security officer

(4) A person is not criminally responsible for an offence against section 474.24E (using a carriage service for transmitting, etc. intimate images) or 474.24G (possessing etc. an intimate image for use through a carriage service) if:

(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and

(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.

Note: A defendant bears an evidential burden in relation to the matter in this subsection, see

subsection 133(3).

Prohibited content and content filtering technology

(5) A person is not criminally responsible for an offence against section 474.24E (using a carriage service for transmitting, etc. intimate images) or 474.24G (possessing etc. an intimate image for use through a carriage service) if the person engages in the conduct in good faith for the sole purpose of:

(a) assisting the Children's e-Safety Commissioner to detect:

(i) prohibited content (within the meaning of Schedule 7 to the Broadcasting Services Act 1992); or

(ii) potential prohibited content (within the meaning of that Schedule); in the performance of the Commissioner's functions under Schedule 5 or Schedule 7 to that Act; or

(b) manufacturing or developing, or updating, content filtering technology (including software) in accordance with:

(i) a recognised alternative access-prevention arrangement (within the meaning of clause 40 of Schedule 5 to the Broadcasting Services Act 1992); or

(ii) a designated alternative access-prevention arrangement (within the meaning of clause 60 of that Schedule).

Note: A defendant bears an evidential burden in relation to the matter in this subsection, see

subsection 13.3(3).

474.24K Consent to commencement of proceedings where defendant under 18

(1) Proceedings for an offence against this Subdivision must not be commenced without the consent of the Attorney-General if the defendant was under 18 at the time he or she allegedly engaged in the conduct constituting the offence.

(2) However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, such an offence before the necessary consent has been given.

3 Subsections 475.1A(1) and (2) of the Criminal Code

After "D,", insert "DA,".

4 Paragraphs 475.1B(1)(a) and (2)(a) of the Criminal Code

After "D,", insert "DA,".

This amendment introduces three new offences into the Commonwealth Criminal Code with respect to the non-consensual sharing of intimate images—namely, knowingly or recklessly producing intimate images without consent, knowingly or recklessly sharing intimate images without consent, and threatening to take and/or share intimate images without consent, irrespective of whether or not those images exist. These offences make it clear that it is the victim's consent that has paramount consideration and not whether the alleged perpetrator intended to cause harm. These take into consideration the final recommendations of the Senate inquiry into the phenomenon known as revenge porn.