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senate vote 2018-02-14#1
Edited by
mackay staff
on
2018-08-03 13:55:48
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Title
Description
- The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2018-02-14.5.1) introduced by Senator [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm), which means it was unsuccessful.
- ### Amendment text
- > *(1) Schedule 1, item 4, page 4 (after line 23), after the definition of on-demand program service, insert:*
- >> *outdoor public place means an outdoor place to which the public, or a section of the public, ordinarily has access, whether or not by payment or by invitation (including, for example, the open air areas of an outdoor concert or sportsground).*
- > *(2) Schedule 1, item 18, page 8 (after line 23), after subsection 9B(6), insert:*
- >> *(7) For the purposes of this section, an intimate image does not include a drawing, painting or sketch (whether still or moving).*
- >> *(8) For the purposes of subsections (3) and (4), an intimate image does not include images of a person in an outdoor public place.*
- ### What does the bill do?
- The bill [was introduced to](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/s1113):
- * *prohibit the posting of, or threatening to post, an intimate image without consent on a social media service, relevant electronic service or a designated internet service;*
- * *establish a complaints and objections system to be administered by the eSafety Commissioner;*
- * *provide the commissioner with powers to issue removal notices or remedial directions;*
- * *establish a civil penalty regime to be administered by the commissioner; and*
- * *enable the commissioner to seek a civil penalty order from a relevant court, issue an infringement notice, obtain an injunction or enforce an undertaking, or issue a formal warning for contraventions of the civil penalty provisions*
- Note that the bill *does not* criminalise sharing intimate images without consent. The prohibition it creates is a [civil matter](https://en.wikipedia.org/wiki/Civil_law_(common_law)), not a [criminal one](https://en.wikipedia.org/wiki/Criminal_law_of_Australia).
- Read more in the [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd1718a/18bd074).
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senate vote 2018-02-14#1
Edited by
mackay staff
on
2018-08-03 13:53:32
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Title
Bills — Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill 2017; in Committee- Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill 2017 - in Committee - Outdoor places and sketches
Description
<p class="speaker">Sue Lines</p><p>The committee is considering the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017. The question is that the bill as amended be agreed to.</p> <p class="speaker">David Leyonhjelm</p>- The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2018-02-14.5.1) introduced by Senator [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm), which means it was unsuccessful.
- ### Amendment text
- > *(1) Schedule 1, item 4, page 4 (after line 23), after the definition of on-demand program service, insert:*
- >> *outdoor public place means an outdoor place to which the public, or a section of the public, ordinarily has access, whether or not by payment or by invitation (including, for example, the open air areas of an outdoor concert or sportsground).*
- > *(2) Schedule 1, item 18, page 8 (after line 23), after subsection 9B(6), insert:*
- >> *(7) For the purposes of this section, an intimate image does not include a drawing, painting or sketch (whether still or moving).*
- >> *(8) For the purposes of subsections (3) and (4), an intimate image does not include images of a person in an outdoor public place.*
<p>Madam Chair, an amendment has been moved, has it not?</p><p>The CHAIR: We did put and pass some amendments. Opposition amendment (1) was passed just before 7.20 yesterday evening. It's up to you; I'm in your hands.</p><p>I'm happy to move mine. It's just that, on the running order, the Greens amendments are first.</p><p>The CHAIR: That's fine, Senator Leyonhjelm. You've got the call.</p><p>by leave—I move amendments (1) and (2) on sheet 8368 together:</p><p class="italic">(1) Schedule 1, item 4, page 4 (after line 23), after the definition of <i>on-demand </i><i>program service, </i>insert:</p><p class="italic"><i>outdoor public place </i>means an outdoor place to which the public, or a section of the public, ordinarily has access, whether or not by payment or by invitation (including, for example, the open air areas of an outdoor concert or sportsground).</p><p class="italic">(2) Schedule 1, item 18, page 8 (after line 23), after subsection 9B(6), insert:</p><p class="italic">(7) For the purposes of this section, an <i>intimate image </i>does not include a drawing, painting or sketch (whether still or moving).</p><p class="italic"> (8) For the purposes of subsections (3) and (4), an <i>intimate image </i>does not include images of a person in an outdoor public place.</p><p>2 Today we're debating the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017. It's a bill supposed to deal with revenge porn, but it goes beyond that in ways that could slap $100,000 fines on people who are not posting revenge porn, including journalists.</p><p>My amendments exclude drawings, paintings and sketches from the definition of 'image'. I note that, on page 23, the explanatory memorandum says that the definition of an image includes a drawing. My amendment seeks to exclude these drawings, paintings and sketches so that a $100,000 fine couldn't be slapped on someone for merely posting a drawing, painting or sketch of someone. If I posted a picture or, indeed, a drawing of President Donald Trump urinating in Central Park, I shouldn't face a $100,000 fine.</p><p>My amendments also exclude certain images taken in outdoor public places from the definition of 'intimate image'. As a result, a $100,000 fine couldn't be slapped on someone for merely posting a picture of someone doing a typically private act in an outdoor public place. For example, if I posted a photo of President Donald Trump urinating in Central Park where no rude bits are showing, I shouldn't face a $100,000 fine.</p><p>There is a further result of my amendment regarding outdoor public places. The bill allows a $100,000 fine to be slapped on someone for posting a picture of someone without religious or cultural attire when that person consistently wears religious attire in public. This is reasonable if the picture was taken when the person was on private property or in a public toilet, but it's not reasonable if the picture was taken of the person in an outdoor public place. My amendment would ensure a $100,000 fine couldn't be slapped on someone for posting a picture of a person out of their usual religious or cultural attire if the person was in an outdoor public place at the time.</p><p>For example, a picture of Cardinal George Pell without his collar would, potentially, come under this bill. A picture of a nun who wasn't wearing her habit in public would, potentially, offend against this bill. A woman who normally wears a burqa but wasn't wearing a burqa in public and had her picture taken would, potentially, offend against this bill, unless my amendment succeeds.</p><p>I acknowledge that the bill already attempts to limit the capacity to impose fines by saying they only apply in circumstances in which an ordinary reasonable person could reasonably expect to be afforded privacy, but this is vague. My additional limitation regarding outdoor public places would add some much-needed clarity. I commend my amendments to the Senate.</p> <p class="speaker">Mitch Fifield</p><p>Senator Leyonhjelm has asked me to look closely at his amendments, which I have done. I can seek to provide some context to this particular part of the legislation. Let me start with the exclusion of a drawing, painting or sketch from a definition of an 'intimate image' that Senator Leyonhjelm is seeking.</p><p>Under the bill, an intimate image can be a still visual image, such as a photograph, or moving visual images, such as video recordings. Images could be photographs, modified photographs, animations, drawings or other depictions of the person, such as what is known as morph porn, and fake pornographic videos also known as deep fakes. There are exemptions in the bill whereby, if an ordinary reasonable person considered the posting or the sharing of the image acceptable in certain circumstances, it would not be captured by the prohibition. Obviously, we have in mind there things such as satirical drawings or parodies.</p><p>Moving to Senator Leyonhjelm seeking to exclude 'outdoor public place' in the definition of an intimate image, the definition of 'intimate image' includes depiction of a private activity where material will be an intimate image of a person if it depicts or appears to depict the person in a state of undress, using the toilet, showering, having a bath, engaged in a sexual act of a kind not ordinarily done in public or engaged in other like activity in circumstances in which an ordinary reasonable person would reasonably be expected to be afforded privacy. It wouldn't include a situation where a person is in their swimmers at the beach or showering at the beach.</p><p>The government remains of the view that the current definition does afford protection in circumstances where they would expect privacy. I certainly appreciate the sentiment and the motivation of Senator Leyonhjelm and, as he requested, we did look closely at his amendments, but the government aren't, at this point, minded to support those amendments. Obviously, legislation of this sort is always kept under review in the light of practical experience and its real-world operation. The Senate has already determined that there will be a statutory review in three years time, but, in the outworking of legislation, if there appear to be issues before that time, that is naturally something that I'm sure all colleagues would want to examine.</p> <p class="speaker">Deborah O'Neill</p><p>I want to indicate that Labor will not be supporting the amendment. It doesn't deliver the necessary change required to deliver the real outcomes that we have sought in our legislative recommendations for change in the course of this inquiry. It doesn't deter or practically respond to the non-consensual sharing of intimate images.</p> <p class="speaker">David Leyonhjelm</p><p>Minister, in the example you gave, that it wouldn't cover somebody in their swimmers at the beach, if a woman's normal cultural attire was a burkini and, on one particular day, that person was wearing some other kind of swimwear, would this legislation apply to that situation?</p> <p class="speaker">Mitch Fifield</p><p>Sorry, I missed the last part of Senator Leyonhjelm's contribution there.</p> <p class="speaker">David Leyonhjelm</p><p>I will include all three examples rather than rise three times. If a woman's normal beach attire—you referred to swimmers—was a burkini, and that woman on one particular occasion was not wearing a burkini at the beach but some other form of swimwear, would that image, if posted, offend against this legislation? Would a picture of Cardinal George Pell not wearing his collar, his normal religious attire, offend against this legislation? Would a nun who was not wearing her habit but who normally wore her habit was photographed in a public place, would that offend against this legislation?</p> <p class="speaker">Mitch Fifield</p><p>Thank you, Senator Leyonhjelm. In response to each of those three examples, the answer would be no. But I do just add the caveat that context is important in these matters and it would depend whether there was some other offensive depiction which might trigger this legislation. But, just in the pared-back examples you have given, the answer would be no in each case.</p> <p class="speaker">Jordon Steele-John</p><p>We do not support these amendments. I would like to remind Senator Leyonhjelm that just because a woman steps into a public space doesn't mean she no longer has a right to privacy and protection. I would think that this is a rather easily understandable point to make and it surprises me that it is lost on the senator in this case. Individuals must have, and can reasonably expect, privacy in various situations where they are in outdoor spaces. An obvious example of a phenomenon that is increasing and quite troubling in this area is upskirting and down-blousing. The highly offensive insinuation, I would argue, behind this amendment, as I have said, is that just because a woman, or any other person, steps out in public, they have given their consent for inappropriate and humiliating images to be taken and shared. Quite frankly, that is a disgusting insinuation to make. We proudly do not support these amendments, and I cannot for the life of me begin to think why such things would be put forward in this place.</p> <p class="speaker">Mitch Fifield</p><p>I rise in defence of Senator Leyonhjelm. I do not take it that Senator Leyonhjelm's proposed amendments are based on the sorts of inferences that Senator Steele-John has made, that Senator Leyonhjelm is in any way a supporter of or wants to see legislative exemptions for the inappropriate depiction of women.</p><p>While the government isn't minded to support Senator Leyonhjelm's amendments, for the reasons I have outlined, I do not question for one second Senator Leyonhjelm's motivation. Senator Leyonhjelm's seeking to examine legislation, to test it and to ensure that, as well as protections, there aren't liberties that are needlessly infringed. I do feel compelled to reject the insinuations that Senator Steele-John makes in terms of the motivation of Senator Leyonhjelm's amendments. As I said, while we're not minded to support Senator Leyonhjelm's amendments; nevertheless, we do fully appreciate the spirit in which he has moved them.</p> <p class="speaker">Pauline Hanson</p><p>I'd like to ask the minister a question: if a person who normally wears a burqa enters a courtroom and is required by the judge to remove her burqa and who is then photographed, and that photograph is then shown, where does that stand?</p> <p class="speaker">Mitch Fifield</p><p>My view would be that a courtroom is not a private place and that individuals should comply with what they are directed to do within a courtroom. I'm sure that that context would be taken into account. Also, courts themselves will have certain rules in relation to what can be photographed and what can be recorded, for that matter, within their confines.</p><p>The CHAIR: The question is that the amendments (1) and (2), moved by Senator Leyonhjelm, on sheet 8368 be agreed to.</p>
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