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

Labor is deeply committed to keeping Australians safe online and, therefore, supports the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017, which does introduce a civil penalty regime to combat the non-consensual sharing of intimate images. Whilst Labor does not think the bill goes far enough, we support it as a step in the right direction. It's essential the Australian parliament send a very clear message to the community that the sharing of, or threatening to share, intimate images without consent is absolutely not acceptable. Labor supports the regime because it provides a mechanism by which victims may seek affordable redress, including advice, support and information, and because it should deter perpetrators from sharing intimate images.

Article 20(2) of the International Covenant on Civil and Political Rights requires Australia to take measures to protect persons from exploitation, violence and abuse, and prohibiting the non-consensual sharing of intimate images under a civil penalties regime goes some way to doing so. I note the submission of the Australian Information Commissioner to the department's consultation on this bill, which states

The non-consensual sharing of these images is a serious invasion of privacy, which has the potential to cause severe harm, distress and humiliation to the victim. Further, the harm that can be caused through the sharing of such images is exacerbated by rapidly increasing technological capacity for capturing images and making recordings, and the ability to distribute digital material on a vast scale.

According to a research report published in May 2017 by RMIT University, one in five Australians, one in two Australians with a disability and one in two Australian Indigenous peoples have experienced the non-consensual sharing of intimate images. This research found that the psychological impact on victims can be significant. And negative implications, whether perceived or actual, can affect their reputation, family, employment, social relationships and even personal safety.

While the non-consensual sharing of intimate images can occur as a result of the ex-partner of a victim distributing images of a victim for the purpose of seeking revenge, it can also involve acquaintances or even complete strangers distributing the images. The practice is generally intended to cause harm, distress, humiliation and embarrassment, whether through the actual sharing and distribution of intimate images or the threat to share, often in an attempt to control, blackmail, coerce or punish a victim—commonly referred to as 'sex-tortion'. Other motives might include sexual gratification, fun, social notoriety and/or financial gain.

Labor understands how important it is to have a strong legal framework in place to strengthen the eSafety Commissioner's ability to resolve matters and to support the introduction of a graduated suite of redress mechanisms. 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 of images, and thus a removal notice or other enforcement action may not be required in every case. In particular, we recognise the value of an accessible system that enables victims to lodge a complaint directly to the commissioner, where an intimate image has been posted or, indeed, someone is threatening to post without consent.

While Labor supports this bill, we note that it doesn't go far enough to address the seriousness of image based abuse. In October 2015 Labor introduced a private member's bill that would make the non-consensual sharing of intimate images a crime. Over two years later, the Turnbull government continues to delay criminalising the non-consensual sharing of these private images. In April 2016 the COAG Advisory Panel on Reducing Violence against Women and their Children released a report recommending:

To clarify the serious and criminal nature of the distribution of intimate material without consent, legislation should be developed that includes strong penalties for adults who do so.

Labor went to the 2016 federal election promising Commonwealth legislation to criminalise revenge porn, as it was referred to then, within the first 100 days of being elected. In October 2016 Labor reintroduced its private member's bill in the current parliament. However, it was removed from the Notice Paper on 23 May 2017, because the government refused to call it on for debate for eight consecutive sitting Mondays. In June 2017, the shadow minister for communications moved a second reading amendment in the House of Representatives, calling on the Turnbull government to criminalise sharing of intimate images without consent, but the motion was defeated. A similar motion was subsequently agreed to in the Senate, yet the government continued to ignore Labor's clear and longstanding intent that this egregious behaviour be criminalised. The Turnbull government has been dragging its feet and has taken far too long to address this issue of image based abuse. The bill comes in the fifth year of the Liberal government and over two years after Labor's first proposed, stronger measures.

In consultation that the government ran on the civil penalties regime last year, there was a missed opportunity to explore the criminalisation of the sharing of intimate images without consent. Protecting Australians from this type of abuse simply has not been a priority for the Turnbull government. Labor calls on the government to join Labor to criminalise the non-consensual sharing of intimate images. The absence of a criminal offence for image based abuse sends a message to rogue operators, victims and police alike that sharing intimate images without consent is not a crime. The government asserts that its approach, a civil penalties regime at the Commonwealth level and a patchwork of criminal penalties at state and territory level, gives victims a choice. However, by failing to enact criminal penalties, the Commonwealth is, in fact, limiting choice by limiting the range of simple and accessible avenues available to victims. While not all victims of image based abuse will want to pursue criminal proceedings, and may prefer to work with the eSafety Commissioner to remove these images, a civil penalty regime cannot and does not exist in a vacuum. Without a clear Commonwealth offence for the non-consensual sharing of intimate images, a civil penalty regime may in fact incentivise police to refer cases to the eSafety Commissioner instead of prosecuting. The government has justified its failure to introduce a specific Commonwealth offence for the non-consensual sharing of intimate images on the basis that there is an existing offence under 474.17 of the Criminal Code for misuse of telecommunication services to menace, harass or cause offence. However, the given the breadth of cases prosecuted under section 474.17 by the Commonwealth Director of Public Prosecutions, it is unclear how many of the charges referred to by the AFP are specifically for this type of image based abuse, as opposed to a broader range of conduct that menaces, harasses or causes offence.

Shortly after the introduction of Labor's private member's bill in 2015, the Senate Legal and Constitutional Affairs References Committee established an inquiry into this issue. The Commonwealth Director of Public Prosecutions expressed concerns during the Senate inquiry that there are limitations on existing Commonwealth laws to adequately deal with revenge porn conduct. The DPP's submission to the inquiry acknowledged that existing Commonwealth laws capture only part of revenge porn conduct. The submission said:

… there are limitations on existing Commonwealth laws to adequately deal with 'revenge porn' conduct.

At a Senate hearing, the AFP said:

… uniformity in legislation across Australia would be most helpful for police—

to be able to investigate and charge perpetrators.

While the explanatory memorandum to the bill quotes research from a May 2017 RMIT research report, it fails to mention another key finding from that report, being that four in five Australians agree it should be a crime to share sexual or nude images without permission. A majority of Australians, 80 per cent, agreed with the statement, 'It should be a crime for someone to share a nude or sexual image of another person without that person's permission.' And there is broad agreement within the Australian community as to the seriousness of this issue regardless of whether someone has experienced it personally.

The explanatory memorandum to this bill goes on to acknowledge the seriousness of image based abuse. The EM says:

The non-consensual posting of an intimate image is a serious breach of a person's right to privacy. It involves the sharing of a personal and intimate image with a person or people with whom it was not intended to be shared. Not only is this a fundamental breach of trust by the person sharing the image, it often has long lasting detrimental consequences for the person depicted in the image.

Further, the EM states:

The posting of an intimate image without consent is also an attack on a person's reputation. Not only does it cause harm and distress for the victim, it can also have broader impacts for the victim's reputation. It can have far reaching consequences for the victim's personal relationships and friendships, and may also impact a victim's employment or other prospects which are contingent on their reputation.

Finally, the EM states:

The Australian public recognise the abhorrence of this practice and the significant harm it causes victims, and expect an appropriate regime to be enacted to prevent and minimise harm to victims or potential victims.

Labor believes that the significance of this harm warrants criminal penalties, plain and simple. So, for these reasons, I move the second reading amendment as circulated in my name and in these terms:

At the end of the motion, add:

", but the Senate:

  (a) notes key research findings from RMIT University that 1 in 5 Australians have experienced image-based abuse and 4 in 5 Australians agree it should be a crime to share sexual or nude images without permission;

  (b) notes that in Australia there is a piecemeal legislative approach to image-based abuse, with no nationally consistent criminal laws, and that the harms associated with image based abuse warrant it being specifically classified as a criminal offence;

  (c) notes that the Council of Australian Governments recommended that to clarify the serious and criminal nature of the distribution of intimate material without consent, legislation should be developed that includes strong penalties for adults who do so;

  (d) notes that this Bill does not criminalise the sharing of intimate images without consent; and

  (e) with the exception of depictions of persons without attire of religious or cultural significance, calls on the Government to criminalise the sharing of intimate images without consent."

Along with the government, Labor acknowledges and appreciates that the more prominent social media service providers and content hosts are working very hard to develop innovative technological measures or have already put in place robust processes that are intended to assist victims whose images have been shared without consent. Labor encourage these social media providers and content hosts to continue this good work, and we note that the bill will not prevent victims from approaching these services in the first instance, rather than the Office of the eSafety Commissioner, if they wish to do so. Labor recognises the strong partnerships that social media services and content hosts have established with the commissioner and encourages their continuance, as these relationships will continue to be pivotal in protecting Australians against the non-consensual sharing of intimate images.

Against this backdrop, Labor notes some of the key concerns of DIGI, as noted in its submissions to the department's consultation on the discussion paper on the non-consensual sharing of intimate images. These concerns include, firstly, that the bill duplicates existing industry efforts to remove image based abuse and may not represent the most targeted or effective use of taxpayer resources and may even disincentivise industry innovation in addressing image based abuse. The bill does not require victims to first exhaust company complaint channels, for example. Secondly, the bill may not improve compliance around the removal of image based abuse given that major digital platforms already operate efficient take-down policies, some of which see the removal of offending content faster than the 24-hour time frame stipulated in the bill, and given that the eSafety Commissioner is likely to continue to encounter difficulties in compelling overseas sites and rouge operators to remove images with only a civic regime in place. I think that is a very important point.

In view of these concerns, Labor believes that within three years of its commencement the minister should cause to be conducted a review of the civil penalty regime for the non-consensual sharing of intimate images, along with the preparation of a report and the tabling of a report in each house of parliament. While the Enhancing Online Safety Act 2015 already includes a review clause at section 107, this review is due to commence in the very near future. If conducted in a timely fashion, that review will assess the cyberbullying regime that first commenced in 2015, but it will, sadly, be of limited efficacy given that the new regime for image based abuse won't have been in operation for very long. Labor thinks there should be further meaningful review of any new civil penalties regime once it has been in operation for a substantial period of time.

In conclusion, Labor supports this bill as a step in the right direction but stands firm on its clear and longstanding calls for relevant criminal provisions. There's nothing out of the ordinary about having both civil and criminal provisions enacted. I reiterate Labor's support for the Senate inquiry recommendation, which was that the Commonwealth government legislate, to the extent of its constitutional power and in conjunction with state and territory legislation, offences for recording, sharing and threatening to take and/or share intimate images without consent. In closing, I reiterate the comments of the opposition leader in his November 2016 White Ribbon Day speech, and those were:

So called revenge porn should be a crime across Australia but it is not.

Criminalisation of so called revenge porn should be a Federal law, not just left to a patchwork of state laws, consistent with the Commonwealth DPPs recommendation.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

The Australian Greens would like to welcome the positive move that this bill makes in protecting Australians from those who would seek to use online platforms to abuse, threaten, extort or otherwise cause harm by the non-consensual sharing of or threatening to share intimate images. We are pleased that the government, in this instance, has finally listened to progressive voices around this chamber and the country. We have been calling for such legislation for many years now. It is refreshing to see this government seeking to expand protections for individuals, rather than seeking to harvest, store and share their most personal information themselves in the name of so-called national security. We are even more pleased that the government has taken inspiration from the legislation put forward by my colleagues in the ACT Greens, which include a broad definition of 'intimate' that acknowledges cultural context, including the depiction of a person without attire of religious or cultural significance. We are also supportive of the definition of 'consent' as something that must be expressed, voluntary and informed.

We are, however, disappointed—and, I must say, personally, deeply disappointed—that the legislation was brought on for debate in such haste that it did not allow for proper scrutiny, despite our best efforts to refer this bill to inquiry. The government has tried to dismiss our requests by citing previous consultation. However, consultation does not negate the need for scrutiny, particularly when many of those consulted are under the impression that they will subsequently be given the opportunity to give their thoughts, opinions and expertise in regard to the outcome. We are also disappointed that, in the government's haste to introduce this legislation, they seem to have forgotten one small yet crucial detail—to allocate any funding to the cost of running this scheme. They have instead pushed off to the 2019 budget the burden—and let's call it for what it is—of the necessity of matching the very critical sentiments and beliefs embodied in this legislation with actual funding dollars.

We have deep concerns around the adequacy of funding to be provided particularly to the Office of the eSafety Commissioner to expand their powers. Much has been said of the merit of the scheme currently operated by the commissioner, but I am sad to inform the chamber, and I'm not sure whether many of us in here know this, that the aspect of the commission's work that will actually be implemented to carry out this scheme currently has working within it four persons—four individuals. I am hopeful that, presumably, somewhere down the track more money will be given to the commission to carry out this additional expanded critical work, but none of that certainty has been given. None of those assurances have been made, though these are all issues. This is really just one of the many issues that could and should have been considered during a committee process. We also have serious concerns about the implications for people under the age of 18 who will potentially face steep civil penalties under the proposed regime, and I will address this in more detail within my amendment.

Last year, Senator O'Neill rightly noted, RMIT University gave us insight into the nature of image based abuse and also the people who are most likely to be targeted. Unsurprisingly, the people who are targeted primarily are already marginalised and discriminated against. Fifty-six per cent of disabled Australians have been victims of image based abuse, as have 50 per cent of Aboriginal and Torres Strait Islander peoples. LGBTIQ people are victims of this horrendous abuse 36 per cent of the time. One in three people aged 16 to 19 and one in four aged between 20 and 29 have reported at least one form of image victimisation.

This speaks to the lived reality that is known by so many Australians, that technology facilitated abuse is now extremely prevalent in domestic and family situations. It is a horrible background drum to the lives of so many of our fellow Australians, and it is increasingly prevalent in the area of domestic and family violence, including tracking, harassment, surveillance and hacking, with image based abuse occurring or likely to occur once the relationship ends. A reality that we must confront and recognise is that the majority of perpetrators are male and that women are more likely than men to be victimised by an intimate partner or ex-partner.

The impacts of image based abuse are significant, with victims suffering high levels of psychological distress, consistent with a diagnosis of moderate to severe depression and/or anxiety. The negative implications of abuse can affect every aspect of a person's life, including family, employment, relationships and personal safety itself.

We believe that the legislation does complement state legislation that has been introduced around the country. It is also important for a national strategy in implementing the civil penalties regime to complement state legislation that criminalises the non-consensual sharing of intimate images.

We also need—and I think this is a point that we cannot go past in this debate—fundamentally to recognise and acknowledge the role that social media and internet content providers must play in introducing proactive, not just reactive, measures to create safe spaces online. Quite frankly, I have grown tired, during the course of consideration of this legislation, of hearing the many, varied and well-constructed words of particular CEOs of various social media companies speaking at length about the wonderful things that they are doing in this space. You will forgive me if I express a little cynicism here, particularly when we are talking of carriers and organisations with billions of users that are seeking public praise for the employment of a couple of thousand people in these areas, allowing, on average, 30 seconds to be given to the review of each report. I rather believe that in this area it is important to look not to the rhetoric but to the material reality of the funds invested in dealing with this problem. It often is difficult to identify just how much is being spent in this space, but I don't think I will be going too far out on a limb if I suggest that many of these companies do not spend as much money annually protecting their users, for whom they have a responsibility of care, from these kinds of horrendous experiences as they do attempting to sell them various plastic products.

In conclusion, we welcome this piece of legislation to the parliament. It is far past time that we acted in this area, and I join with Senator O'Neill in expressing disappointment that it has in fact taken us five years to end up in this space and to act in relation to an issue which in that period of time has been wreaking profound havoc on the lives of so many Australians. I, in the course of consideration of this legislation, have been given the opportunity to reflect critically upon our role here as a house of review and what that means in a tangible sense. If you take the time to listen to the experiences of those who have been victims in this space, you cannot help but be gripped by a sense of profound urgency. However, I also cannot escape the thought that the seriousness of these situations requires us here to ensure that proper scrutiny is given to the framework which we then take forward to address these issues. People who experience this kind of intrusion into the most private elements of their lives deserve from us nothing less than the finest piece of legislation that we can put forward. However, things being as they are, we welcome this step forward.

I would like to close by expressing a wish that the government and the opposition, in so many unfortunate situations, weren't so often firmly aligned against the needs, rights and protections of individual Australians when it comes to personal data and communications online. It seems that the clarity which is gifted to us in relation to this issue is lost when we consider these issues. There is a failure to see the fundamental overlap between online safety and privacy concerns—safety simply does not exist without privacy and security online.

In conclusion, I ask us to go forward from this debate and consider in depth and detail the broader issue of the protection of all Australians' digital self as we move forward into an ever more technologically advanced Australian community. I thank the chamber for its time.

Louise Pratt (WA, Australian Labor Party, Shadow Minister for Environment and Water (Senate)) Share this | Link to this | Hansard source

In lending Labor's support today to the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017, I recognise what an important issue this is for us to be talking about. It is the unfortunate experience of one in five Australians to have had such non-consensual sharing of intimate images happen to them. As others have highlighted, it includes one in two people with a disability and one in two Indigenous Australians. The vast proportion of those images have been of women.

As we know, this bill prohibits the non-consensual sharing of intimate images and does at least go some way in deterring people from engaging in this extraordinary behaviour. We understand that it has a civil penalty regime attached to it and provides the eSafety Commissioner with stronger frameworks to resolve these questions. However, like Senator Steele-John, I highlight the minimal resources that the eSafety Commissioner currently has for undertaking this kind of work. We see that the commissioner can seek civil penalties of up to $105,000, or over $500,000 for body corporates.

In Labor's view these changes are important, but we don't believe that they go far enough. They don't go far enough in terms of protecting Australians from online exploitation and abuse, and we should be clear that this is exactly what non-consensual sharing of intimate images is—exploitation, humiliation and abuse—and it needs to be treated as such. I have seen firsthand the great harm and distress that these acts cause to victims. We must ensure that our laws reflect this harm. We want the government to send a clear message to Australians that sharing these images without consent is completely unacceptable. On this side of the chamber, we certainly believe that making the sharing of non-consensual images a crime would be the right way forward from here.

We know that the sharing of these images is used to exploit and exercise power over others, both within and outside relationships. It is an extreme example—a very real one, and one that some of my very own friends have experienced—of how some men exercise power and control over women with whom they have had relationships. It is a tool used by perpetrators of family violence to exercise control over victims, be they their partners or their former partners. It is a form of revenge, a form of blackmail, a form of coercion, and, indeed, a form of ongoing abuse to denigrate and harm the reputation of former family members.

So it's not only the sharing of these images that concerns us but the creation of content in a whole range of ways. Indeed, as others in this place have highlighted, we've seen that often the sharing of intimate images is combined with such acts as hacking and the placing of stalker apps on partners' phones. There are a whole series of behaviours that we need the law to capture. These are issues that Senator Cash should recognise. We also have concerns about the recording of sexual assaults and consensual acts as well as threats to distribute images. It's not just images but the recording of video et cetera that's of concern to us.

We know that image based abuse is part of a much broader set of behaviours around digital harassment. In my own experience I have seen that it is on the rise. I've seen my own friends who have had their Facebook accounts hacked into, or who have had stalker apps put on their mobile phone so that former partners can track their movements. It is an ever-growing use of technology and social media to perpetuate family and domestic violence and abuse. As the risks of these behaviours rise, so do the extreme impacts on victims and their families. It's becoming easier and easier to create and share online images.

Governments must think carefully about the role they play in preventing this abuse and how we deal with this kind of offending. We on this side of the chamber take this issue very seriously. We promised to legislate to criminalise revenge porn within the first 100 days of being elected. In 2015 Labor MPs introduced a private member's bill to amend the Criminal Code and make the non-consensual sharing of images an offence. I'm proud of that. Sadly, the bill lapsed in 2016 after the prorogation of parliament, but it was reintroduced in October 2016. It was removed from the Notice Paper in May 2017, because the government wouldn't call it on for debate. So I'm pleased that this legislation is before us today but I call on the government to be more proactive and to take these issues seriously.

Currently I'm chairing a Senate inquiry into cyberbullying. The concerns being raised before that inquiry really highlight that the extent of the issues before us requires ongoing engagement and reform of our laws. It has been more than two years since Labor first proposed measures to protect people from the sharing of these images. While we're pleased to see the bill before us, the government has been too slow in acting. Given the broad range of issues regarding cyberbullying and harassment that are also up for public debate, the nexus of digital harassment in the context of domestic violence, the harassment of public figures and journalists—the whole range of cyberbullying that's taking place—I call on the government to be more proactive in this space. It's taken far too long. It's clear that this bill is not a tough response and that this issue has not been a priority for the Turnbull government. The sharing of the images should be a criminal offence. I note that the explanatory memorandum of the bill says:

The Australian public recognise the abhorrence of this practice and the significant harm it causes victims, and expect an appropriate regime to be enacted to prevent and minimise harm to victims or potential victims.

And, as others have highlighted, four out of five Australians agree that it should be a criminal offence. That research is from RMIT.

It's good that the EM states that, but the EM is not a true reflection of the wishes of the Australian public, because there is broad agreement from the Australian public that this should be a crime. So why won't the government do this? Why, when the EM of the bill quotes this very research, is the government not taking this stronger action? While these abhorrent acts are not criminal in Commonwealth law, it sends a message to victims, police and perpetrators that the sharing of intimate images without consent is not a crime. Victims should have the option of enacting criminal proceedings should they wish to do so. Indeed, it creates confusion between the states and the Commonwealth, noting that the Commonwealth has a different regime to the states. I'm concerned that, without a clear Commonwealth offence, a civil penalty regime may simply encourage police to refer cases to the eSafety Commissioner rather than prosecute offenders.

I note that in 2015 the Senate Legal and Constitutional Affairs References Committee found that existing Commonwealth laws are inadequate in dealing with revenge porn. Submissions by the then Commonwealth DPP noted that existing laws capture only part of the conduct and that there are limitations on Commonwealth laws to adequately deal with revenge porn conduct. The AFP has also said that uniform legislation across Australia would be helpful to police in investigating revenge porn and charging perpetrators. It does create confusion for police in state and other jurisdictions when they're weighing up their state laws and, indeed, the Commonwealth laws at the same time.

The COAG Advisory Panel on Reducing Violence against Women and their Children released a report in 2016 that said:

… existing laws that govern such offences do not adequately capture the scope or nature of these offences.

  …   …   …

To clarify the serious and criminal nature of the distribution of intimate material without consent, legislation should be developed that includes strong penalties for adults who do so.

The panel explicitly called on the Commonwealth to do a number of things. These included, firstly, introducing legislation that reinforces perpetrator accountability by removing uncertainty and explicitly making it illegal to use technology to distribute intimate material without consent; secondly, introducing and enforcing strong and consistent penalties for adults who distribute intimate material without consent; and, thirdly, improving community understanding of the impacts and consequences of distributing such intimate material.

Currently, the federal Criminal Code makes it a criminal offence to use a carriage service to menace, harass or offend another person. But the problem is that this legislation is not designed to respond to this kind of behaviour. Many experts, including senior lecturers from Monash, La Trobe and RMIT, have said it's not being used for these kinds of acts; it's not actually capturing the sharing of intimate images or other kinds of cyberbullying and harassment.

Some research has also shown there are issues in the law about the intention behind a behaviour and whether someone intended to menace, harass or cause offence. As such, there's a problem with legal grey areas in the existing Commonwealth law. We need clear and strong laws that take action on image based abuse. Instead, what we have is a patchwork of laws that creates confusion and, indeed, limits options for victims in our country.

There's been, as I've highlighted before, some progress in different states towards criminalising this conduct. Victoria and South Australia have made this an offence. In New South Wales also it is an offence to record or distribute images without consent. Western Australia has passed laws allowing a family violence restraining order to be used in cases of non-consensual sharing of intimate images. This is a very important factor that other states should also be taking account of and that the Commonwealth should be taking account of, using its telecommunications powers to actually be directly involved in the prevention of domestic violence and family abuse with the sharing of these images.

So some, but not all, jurisdictions have taken action and there are gaps across the country. Some state and territory laws have no specific criminal offence for this kind of behaviour at all. This is why we need to see leadership from the Commonwealth to work with the states to provide consistency in order to provide protection where there are inconsistencies from state to state. The AFP and others have called for this so that we can properly catch perpetrators and get better community understanding of why it is wrong to commit these kinds of acts.

In states where there is no specific criminal offence it is very difficult for victims to have any recourse. They have simply no recourse. Civil law is a costly exercise which is out of reach for most ordinary Australians. Criminal laws would allow all victims, no matter where they live, no matter how much money they have, to take action if they wish to do so. There are already too many barriers for victims in this space. No matter where they live, no matter how much money they have, it should be the right of victims to be able to take action. There is a lack of understanding of our laws, a fear of a lack of resources and a fear among victims of backlash should they take action. The lack of clear criminal law should not be a further barrier.

I don't want to see us take a piecemeal approach to this very serious issue. The reality is that our current laws are failing victims. There are too many victims in our nation who embark on very long and tough battles for justice and many don't even get their chance. The cases are complex, often in uncharted legal territory, and there are doubts about how our justice system can deal with them. We know that social media platforms themselves are doing some work to remove these images and to prevent them from being disseminated; they are very active in doing this. We note that Facebook is working with the government in a pilot project to detect when inappropriate images are uploaded. There is a lot of work to attempt to control online abuse, and other platforms are following Facebook and other organisations to do this. But unless people are held accountable, unless people are criminalised for this act, unless the government takes strong action, the work of organisations and companies like Facebook, Twitter, Instagram and many others can only go so far.

The burden in our nation cannot, and should not, sit with victims. The government must set expectations about behaviour and show that image based abuse and the non-consensual sharing of intimate images should not be tolerated in our nation in any way at all. We need a national approach, a Commonwealth criminal offence, to address these issues. I join with those who call on the Turnbull government to criminalise the non-consensual sharing of intimate images as a matter of priority.

Stirling Griff (SA, Nick Xenophon Team) Share this | Link to 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.

Catryna Bilyk (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

In the short time I've got before question time, I'd like to speak about the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017. While I commend the government for taking a step in the right direction, I've got to admit to a great sense of disappointment in regard to this. I'm disappointed for two reasons. Firstly, the government has been dragging its feet on this important issue. This bill has been introduced belatedly after numerous calls by Labor and by the general community for the government to act on the non-consensual sharing of intimate images. Secondly, the bill currently before the Senate just doesn't go far enough. This behaviour must be outlawed through a specific Commonwealth criminal offence, and the government's proposed civil penalty regime is simply not strong enough to signal to perpetrators how unacceptable this behaviour is.

I've come across this issue on a number of occasions during my time in this place. As Chair of the Senate Select Committee on Cyber Safety, I chaired the committee's inquiry into options for addressing the issues of sexting by minors, which reported in August 2013. A number of submitters told the inquiry that there is a need to decriminalise the consensual sharing of images by minors. But, at the same time, there was broad agreement that a new criminal offence should be introduced for non-consensual sexting. Given the short time frame available for conducting that inquiry, the committee made some observations but no recommendation other than saying that the inquiry should be continued in the 44th Parliament. Sadly, that did not happen.

It is also a great shame that the cybersafety committee was never re-formed. That committee did some excellent work during its time, as did its predecessor the Joint Select Committee on Cyber-Safety. I believe there's an ongoing need for this committee, given the pace of change in digital technology, with which our laws seem to be struggling to keep up. Had either the joint or the Senate select committee been re-established, it may have had an opportunity to explore further the subject of non-consensual sharing of intimate images.

In November 2015 I sought to refer the issue of non-consensual sharing of intimate images to the Senate Legal and Constitutional Affairs References Committee, and the Senate agreed. As a member of that committee, I also participated in the inquiry. Officially, the inquiry was held into the phenomenon colloquially known as 'revenge porn', but a number of witnesses, particularly victim support services, suggested using the term 'non-consensual sharing of intimate images', which we now see in the title of this bill. They pointed out that the term 'revenge porn' was too narrow. The word 'porn'—short for 'pornography', obviously—focuses on the perceived action of the victim rather than behaviour of the perpetrator, and the word 'revenge' does not account for the wide range of motives behind this behaviour. Private intimate images can also be shared for control, blackmail, coercion, punishment, fun, notoriety, sexual gratification or financial gain.

Another commonly used term for this behaviour is 'image based abuse'. While this term is less specific in describing the phenomenon, the inclusion of the word 'abuse' makes it clear that this is an act which causes harm and that those responsible for the harm are clearly the perpetrators.

The Legal and Constitutional Affairs References Committee handed down its report in February 2016. It recommended a range of Commonwealth offences to criminalise this behaviour, as well as statutory mechanisms to compel internet and social media providers to take down images as quickly as possible. The offences would include knowingly or recklessly recording an intimate image 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. That report is yet to receive a formal response from the government.

The Senate's inquiry recommendation to make non-consensual sharing of intimate images a Commonwealth offence was backed up by a report by the COAG Advisory Panel on Reducing Violence against Women and Their Children in April 2016. That report recommended:

To clarify the serious and criminal nature of the distribution of intimate material without consent, legislation should be developed that includes strong penalties for adults who do so.

Shortly before the inquiry started, my Labor colleagues in the House Terri Butler and Tim Watts introduced a private members' bill to create new offences in relation to the use of a carriage service for sharing private sexual material. Sadly, this bill didn't get any further than Mr Watts introducing it and delivering his second reading speech before it lapsed at what was the most political prorogation of parliament in Australia's history. Despite Labor's private member's bill lapsing, we have continued to pursue this issue. Labor went to the last federal election promising Commonwealth legislation to criminalise non-consensual sharing of intimate images—

Scott Ryan (President) Share this | Link to this | Hansard source

Order, Senator Bilyk! We interrupt the debate for question time. You'll be in continuation when the debate resumes.