Mr DAVID SHOEBRIDGE ( 17:51 ): On behalf of The Greens I indicate our party’s support of the Crimes Amendment (Intimate Images) Bill 2017. This bill is at least some partial acknowledgement that our laws, both criminal and civil, are currently failing people in this State, most often women, when it comes to image‑based sexual exploitation. Our laws are fundamentally flawed, and the way in which we go about enforcing them, both through the police and our civil remedies, is also fundamentally flawed. Something needs to be done. This bill seeks to amend the Crimes Act 1900 to create specific offences relating to the non-consensual recording and distributing of intimate images. In this debate this often has been called “revenge porn”, but I prefer to use the term “image-based sexual exploitation”, which was the term used by a number of advocates in the inquiry into the remedies for the serious invasion of privacy in New South Wales.
Often this offence goes well beyond, and is quite separate to, the concept of pornography. Images taken without any sense of being used in a pornographic way are often being misused against the victims. That is why many advocates in the area shy away from the use of the term “revenge porn”, although that is how to explain it to the general public, and prefer the use of the phrase “image-based sexual exploitation”. The bill creates an offence of intentionally recording or distributing, or threatening to record or distribute, an intimate image of another person without that person’s consent. The maximum penalty for such an offence is imprisonment for three years, or 100 penalty units, or both. A threat to record or distribute an intimate image without consent is also an offence with, quite appropriately, the same maximum penalty.
An image is defined to include an image of a person’s private parts or a person engaged in a private act—the bill is not as prudent as I am; it clearly states what a person’s private parts are—in circumstances in which a reasonable person would reasonably expect to be afforded privacy. Indeed, that reasonable expectation is essential if this law is going to work. Digitally or otherwise altered images are also included. A person’s consent to the recording of an intimate image must be freely and voluntarily given. Likewise, people consent to distribution of an image only if they freely and voluntarily choose to do so. People who are under 16, unconscious or asleep, threatened by force or detained cannot consent. Consent on previous occasions is not considered to be consent for any other occasion. Likewise, consent to the distribution to one particular person or to a group cannot be used to assume consent to distribute to any other person or more broadly.
Importantly, the conditions set out do not limit the grounds upon which it may be established that a person did not consent. Prosecutions for the offences of recording and distributing of images where the person to be prosecuted is under 16 years, requires the approval of the Director of Public Prosecutions. Indeed, there has been much discussion about whether that particular provision adequately protects minors. The age of criminal responsibility in New South Wales can be as low as 10 years, and this law can apply to children as young as 10 years. Where the court finds a person guilty of an offence it may order the person to take reasonable actions to remove or destroy any images recorded or distributed, and to take them down from a digital platform. Failure to do so without reasonable excuse is an offence with a maximum penalty of two years imprisonment, or 50 penalty units, or both.
Exceptions to the offence exist if the conduct was done for a general medical or scientific purpose, was done by a law enforcement officer for general purpose, was required by a court, or where a reasonable person would consider the conduct of the accused to be acceptable given the nature of the image, the circumstances, the age and intellectual capacity or vulnerability of the person depicted, the degree to which the accused person’s actions affects the privacy of the person depicted, the degree to which the accused person’s actions affects the privacy of the person, and the relationship of the accused and the person in the image.
These decisions can be very complex. For example, the sharing of an image of a child in a bathtub can have quite a different context if it is shared by a parent with an uncle, aunty or grandparent to being shared with a person who is unrelated to that child. It is well known that there is a very real problem with this concept of revenge pornography or image-based sexual exploitation. The report of the Standing Committee on Law and Justice into the remedies for the serious invasion of privacy in New South Wales contained a number of findings that detailed the extent of the problem. I quote from that report:
The typical “revenge pornography” scenario is one where a person has an intimate or sexually explicit image or video of themselves posted online by their ex-partner without their consent. In some instances, the material is published to a revenge porn website. It has been reported that at least 3000 websites “feature the revenge genre.”
As it is described. The report also stated:
Recently published research by criminal audiologists and socio-legal academics Dr Nicola Henry, Dr Anastasia Powell and Dr Asher Flynn suggests that one in ten Australians aged between 18 and 55 years have had a nude or semi-nude image of them sent to others without their permission.
This is not an issue on the margins; this is a substantial and real issue on which all of us have a collective obligation to take action. That is why The Greens support this bill. Although the bill is not a direct recommendation of the inquiry, it is consistent with the work done by the inquiry and goes some way to address a serious issue raised in many of the submissions and in evidence given at the hearings. The inquiry looked at the more direct route to justice that would allow victims of image-based sexual exploitation to bring their own proceedings against those who had exploited them by sharing their images. I quote from the Chair’s foreword in that report:
The committee heard evidence from individuals, academics, legal experts, media and arts representatives, as well as from privacy experts including the NSW Privacy Commissioner, with the vast majority of stakeholders arguing strongly for the introduction of a statutory cause of action on the basis that existing legal remedies were inadequate. The bulk of evidence was that the available civil remedies, in particular the equitable action for breach of confidence, was inaccessible, offered a ‘poor fit’, and failed to offer appropriate remedy to people who suffered a serious invasion of privacy.
The committee also made a direct recommendation in relation to the NSW Police Force. Recommendation 1 stated:
That the NSW Police Force:
a) ensure that its officers receive training in the harms associated with technology-facilitated stalking, abuse and harassment; and
b) that the training incorporate education about how existing offences and other orders, such as apprehended violence orders, could be used in respect of allegations of that nature.
The reason the inquiry made those two recommendations was as follows. Many, many stakeholders and individuals who gave evidence to the inquiry made it clear that there are already a number of laws that should be used by the police to protect people from stalking and intimidation, particularly women, who come to the police to make a complaint about being harassed and intimidated—particularly online on platforms such as Facebook—and they found the police either had a rudimentary knowledge of how the technology worked or did not understand the way the existing legal framework operated.
The inquiry received a number of submissions from legal organisations, such as the Women’s Legal Service NSW and others, that made it clear that the existing powers, for example in apprehended domestic violence orders, that allow for a broad array of orders, which could include take down orders, were not well understood by police and were not being used by police. A number of women said that when they made a complaint to the police nothing ever came of it; that they did not get any satisfaction. That is why the committee recommended that the victims themselves be empowered and have the right to bring a civil action. That is why the committee also recommended that the police get substantial additional training on the harm that is caused by this kind of action and about the powers the police already have to take action to prevent ongoing abuse.
The Government’s response has been largely this legislation, which provides another criminal provision that can only be enforced by the police. I have every hope that it will make a real difference. I have every hope that the police will have seen the recommendation from the committee about further training, and I have every hope that the police will recognise the importance that the Parliament and the community places upon these new legal provisions and will work actively with women in particular to ensure that the laws are enforced and that people who abuse what is often a position of trust are held to account through these new laws. But I join with the comments of the Hon. Adam Searle in saying that this is just the first step—a good first step, but just the first step.
The behaviour that this bill seeks to target should not be minimised. It is an extreme form of privacy invasion and, as I said earlier, most often has women as its target. The inquiry received compelling evidence that this unauthorised sharing of images can be a particular issue for women who are victims of domestic violence, who often also face technology-facilitated stalking and abuse. In some broken relationships there seems to be no way of getting away from the person who is intimidating them—no way of getting away from the violence and the stalking and the harassment. Even when women are physically removed and physically protected from these perpetrators of violence they continue to perpetrate the violence online, and that is one part of what this bill is looking at.
The Women’s Legal Service NSW reported that 98 per cent of domestic violence workers have clients who have been victims of online harassment. Even when women can gain the protection of an apprehended domestic violence order that prohibits their former partner from physically assaulting or intimidating them, the Women’s Legal Service noted that vindictive former partners then turn to online intimidation by spreading intimate details and images on social media. The reality is that more and more of our private lives are being filmed, photographed and recorded by our friends, partners and families. Often this produces material that we are all happy to share, but it can also produce deeply personal images or information that is shared only with an intimate partner, or information that is taken in an innocent atmosphere but which can be exploited and misused in a different environment.
In most cases the only thing that prevents the widespread sharing of intimate or personal material is the personal integrity of the people who hold that material. When relationships break down, those personal constraints are too often lost, and that is when the law needs to step in and provide a remedy. The ability for courts to require material to be taken down is a recommendation of the inquiry and it is clearly necessary. I join the Hon. Adam Searle in saying that if that power is triggered only after a criminal conviction has been recorded, it may well be months or years after the harm was occasioned and we must ensure that there are adequate remedies for its upfront removal, either through the laying of charges or the apprehended domestic violence order regime. Waiting six to 12 months after a conviction to get a takedown order may well defeat the utility of the takedown order.
The Greens will monitor the implementation of this scheme closely. I note that my colleague Dr Mehreen Faruqi will also make a contribution to this debate. In particular we note the need for the training of police across New South Wales in how to deal with people, particularly women, who approach them to report this kind of abuse. Clearly, there are also resourcing issues that should be watched closely. A remedy that is taken to an already overworked police force that does not have adequately trained officers to deal with it will not be much of a remedy. During the inquiry, Liz Snell from the Women’s Legal Service NSW gave evidence that the service had seen, and I quote from the report:
A significant increase in technology-facilitated stalking and abuse … in particular, we are seeing a concerning trend of technology being regularly used against women by perpetrators as a tactic within the wider context of domestic violence.
It is time that ended. Let us hope that this bill is a very real tool in addressing that and ending it. But it should not end here and it will not end here. We have an obligation to ensure that all holes in our law are fully closed, and that we pass laws that protect victims and hold perpetrators to account. The Greens commend the bill to the House.