The majority voted against an amendment introduced by Senator David Leyonhjelm (NSW), which means it was unsuccessful.

The amendment concerns the onus of proof. Liberal Senator Mitch Fifield (Vic) explained that:

Under the bill, consent to share an image must be express, voluntary and informed. The evidential burden of proof that consent was given—Senator Leyonhjelm was correct—lies with the person who shared the image in any civil penalty proceedings. Again, I emphasise that this doesn't relate to the sharing of images between two people; this relates to the sharing of those with a third party.

Senator Leyonhjelm wanted the burden of proving consent - or lack of consent, as the case would be - on the person whose image has been shared rather than the person who actually did the sharing. But the majority disagreed. Senator Fifield, as part of the explanation above, stated why the Government was voting against this amendment:

Given the serious impact that this conduct of sharing beyond the individuals involved has on the victim, the government is of the view that it's appropriate that the alleged perpetrator prove consent to share an image.

Amendment text

(5) Schedule 1, item 26, page 16 (lines 23 to 26), omit the note.

(6) Schedule 1, item 26, page 16 (after line 26), after subsection 44B(2), insert:

(2A) Despite section 96 of the Regulatory Powers (Standard Provisions) Act 2014, in proceedings for a civil penalty order against a person for a contravention of subsection (1), the person does not bear an evidential burden in relation to the matter in subsection (2) of this section.

What does the bill do?

The bill was introduced to:

  • 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, not a criminal one.

Read more in the bills digest.

Votes Not passed by a large majority

Nobody rebelled against their party.

Party Votes
Cory Bernardi SA Australian Conservatives Yes
Australian Greens (100% turnout) 0 Yes 9 No
Andrew Bartlett Queensland No
Richard Di Natale Victoria No
Sarah Hanson-Young SA No
Nick McKim Tasmania No
Lee Rhiannon NSW No
Janet Rice Victoria No
Rachel Siewert WA No
Jordon Steele-John WA No
Peter Whish-Wilson Tasmania No
Australian Labor Party (52% turnout) 0 Yes 13 No
Carol Brown Tasmania No
Anthony Chisholm Queensland No
Patrick Dodson WA No
Don Farrell SA No
Alex Gallacher SA No
Chris Ketter Queensland No
Kimberley Kitching Victoria No
Gavin Marshall Victoria No
Jenny McAllister NSW No
Claire Moore Queensland No
Deborah O'Neill NSW No
Anne Urquhart Tasmania No
Murray Watt Queensland No
Catryna Bilyk Tasmania Absent
Doug Cameron NSW Absent
Kim Carr Victoria Absent
Jacinta Collins Victoria Absent
Katy Gallagher ACT Absent
Kristina Keneally NSW Absent
Malarndirri McCarthy NT Absent
Helen Polley Tasmania Absent
Louise Pratt WA Absent
Lisa Singh Tasmania Absent
Glenn Sterle WA Absent
Penny Wong SA Absent
Nigel Scullion NT Country Liberal Party Absent
Derryn Hinch Victoria Derryn Hinch's Justice Party No
Sue Lines WA Deputy President Absent
Fraser Anning Queensland Independent Yes
Lucy Gichuhi SA Independent No
Steve Martin Tasmania Independent No
David Leyonhjelm NSW Liberal Democratic Party Yes
Liberal National Party (0% turnout) Absent
Matthew Canavan Queensland Absent
James McGrath Queensland Absent
Liberal Party (48% turnout) 0 Yes 11 No
Eric Abetz Tasmania No
David Bushby Tasmania No
Richard Colbeck Tasmania No
Jonathon Duniam Tasmania No
David Fawcett SA No
Concetta Fierravanti-Wells NSW No
Mitch Fifield Victoria No
Jane Hume Victoria No
Jim Molan NSW No
James Paterson Victoria No
Anne Ruston SA No
Simon Birmingham SA Absent
George Brandis Queensland Absent
Slade Brockman WA Absent
Michaelia Cash WA Absent
Mathias Cormann WA Absent
Lucy Gichuhi SA Absent
Ian Macdonald Queensland Absent
Marise Payne NSW Absent
Linda Reynolds WA Absent
Zed Seselja ACT Absent
Arthur Sinodinos NSW Absent
Dean Smith WA Absent
National Party (0% turnout) Absent
Bridget McKenzie Victoria Absent
Barry O'Sullivan Queensland Absent
John Williams NSW Absent
Nick Xenophon Team (100% turnout) 0 Yes 2 No
Stirling Griff SA No
Rex Patrick SA No
Pauline Hanson's One Nation Party (100% turnout) 3 Yes 0 No
Brian Burston NSW Yes
Peter Georgiou WA Yes
Pauline Hanson Queensland Yes
Scott Ryan Victoria President Absent
Totals (59% turnout) 6 Yes – 38 No