|
senate vote 2018-02-14#2
Edited by
mackay staff
on
2018-08-03 14:06:08
|
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 - Burden of proof
Description
<p class="speaker">David Leyonhjelm</p><p>I move Liberal Democrats amendment (3) on sheet 8368:</p><p class="italic">(3) Schedule 1, item 18, page 10 (lines 1 to 13), omit section 9E, substitute:</p>- The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2018-02-14.44.1) introduced by Senator [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm) (NSW), which means it was unsuccessful.
- The amendment concerns the onus of proof. Liberal Senator [Mitch Fifield](https://theyvoteforyou.org.au/people/senate/victoria/mitch_fifield) (Vic) [explained that](https://www.openaustralia.org.au/senate/?gid=2018-02-14.45.1):
- > *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](https://www.openaustralia.org.au/senate/?gid=2018-02-14.45.1), 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](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).
<p class="italic">9E Consent</p><p class="italic">For the purposes of the application of this Act to an intimate image, <i>consent </i>means consent that is:</p><p class="italic">(a) express; and</p><p class="italic">(b) voluntary; and</p><p class="italic">(c) informed;</p><p class="italic">but does not include:</p><p class="italic">(d) consent given by a person who is in a mental or physical condition (whether temporary or permanent) that</p><p class="italic">  (i) makes the person incapable of giving consent; or</p><p class="italic">(ii) substantially impairs the capacity of the person to give consent</p><p>This amendment prevents a $100,000 fine from being slapped on a person for posting an image of a child if the child consents to the posting of the image. I point out that a child is anyone under the age of 18. Currently the bill states that a child cannot give consent to the posting of their image, so even if a 17-year-old urged their friend or partner, who may also be 17, to post the image, that friend or partner could face a $100,000 fine under the bill as it stands.</p><p>If the image depicts a child in a sexual pose or sexual act, or with someone in a sexual pose or act, or if the image depicts a child's sexual organs, anal region or a female child's breasts then the image is child pornography. Regardless of the claims a person who posts such an image makes about consent, posting such an image is a criminal offence punishable by up to 15 years imprisonment, a fine of more than $100,000 or both. The only purpose of ruling out consent by a child in this bill is to impose fines upon a person for posting an image of a consenting child that isn't pornographic. It could be a picture of a child picking their nose or eating their earwax, which seems to be a qualification for becoming a leader of the Labor Party.</p><p>I urge senators not to let legitimate concerns about child pornography colour their views about a bill that is not about child pornography. A 17-year-old can consent to the posting of an image of them picking their nose, and the person who does the posting shouldn't face a $100,000 fine for doing so. I commend my amendment to the chamber.</p> <p class="speaker">Mitch Fifield</p><p>I indicate that the government won't be supporting this amendment. Under the bill, consent to share an intimate image cannot be given by a child, who is a person under the age of 18, as Senator Leyonhjelm points out. This is because, to the extent that the definition of intimate image overlaps with the definition of child sexual exploitation material in the Commonwealth Criminal Code Act 1995, a lower age of consent for the distribution of intimate images would create an inappropriate inconsistency between the criminal and civil frameworks. The effect of this item is that a person under the age of 18 cannot provide consent to the sharing by another person of an intimate image of themselves, as distribution of this image would effectively constitute distribution of exploitative material. I should also point out that the Office of the eSafety Commissioner will, under this legislation, adopt a graduated approach to enforcing prohibitions: firstly, seeking the non-formal resolution of a complaint; then issuing formal written warnings, infringement notices and so on; and ultimately through to civil penalties, if those are warranted.</p> <p class="speaker">David Leyonhjelm</p><p>) ( ): If I understand this correctly, you're arguing that because of an inappropriate inconsistency if two friends, both of whom are 17, came to an agreement that they would have a nose-picking contest and would take and post pictures of each other picking their noses, and continued to do so repeatedly, notwithstanding warnings from the eSafety Commissioner, potentially they would be each exposed to $100,000 fines. You're saying that because of inappropriate inconsistency with laws relating to child pornography, you can't do anything to mitigate that rather absurd situation?</p> <p class="speaker">Mitch Fifield</p><p> ) ( ): In the first instance, someone would need to lodge a complaint. It would also have to be something that an ordinary, reasonable person would consider inappropriate. As with all these things, it's to do with context, but I wouldn't imagine that the particular case or example that Senator Leyonhjelm has cited would result in the consequences that he's flagged.</p> <p class="speaker">David Leyonhjelm</p><p>If normal, reasonable people like you and me, Minister, were eSafety commissioners, perhaps you could imagine that it wouldn't descend to the point where somebody would receive a $100,000 fine. My point is this: what is to stop that from occurring if the eSafety Commissioner were not as normal and reasonable as you and I?</p> <p class="speaker">Mitch Fifield</p><p>Ultimately, the civil penalties would be determined by courts not by the eSafety Commissioner.</p> <p class="speaker">Jordon Steele-John</p><p>We do not support this amendment; although we have some concerns related to the unintended consequences of teenagers engaging in consensual image-sharing activities. Our approach to this issue has been to ensure that under-18s cannot be exposed to harsh civil penalties. We believe that it is of the utmost importance to ensure that children have adequate protection from predators who might seek to exploit their images online.</p> <p class="speaker">Mitch Fifield</p><p>I would indicate that this legislation is about sharing images with a third party. That is the focus of the legislation.</p> <p class="speaker">Pauline Hanson</p><p>If you have two underage 17-year-olds of whom photos have been taken, the images have been put out there and neither person is complaining about them, but the parents are complaining about those images, what's the ruling?</p> <p class="speaker">Mitch Fifield</p><p>Parents can make complaints in relation to their children.</p> <p class="speaker">Cory Bernardi</p><p>I just want to clarify this; I was preoccupied and am not sure whether I heard your answer correctly. Who will be responsible, subject to a complaint, for the penalty that's imposed in this respect? Senator Leyonhjelm's concern was that a child, a 17-year-old, could be fined $100,000. I'm sympathetic to the point that we accept that children are allowed to make decisions to get into sexual relationships with their peers from the age of 16. Yet we're saying that they're not able to consent to having an intimate image—which conjures up all sorts of suggestions; however, it's not child pornography, as we've described—publicly displayed. Further, I question the circumstances such as the Bill Henson pictures, which caused such a controversy so many years ago—I note the Prime Minister has some—which depicted children in an artistic setting, apparently, without the benefit of clothes. Are they deemed to be intimate pictures, and would someone like Mr Henson be subject to these sorts of penalties?</p> <p class="speaker">Mitch Fifield</p><p>In relation to the question of who would enforce or determine civil penalties, the Federal Court would do so. In relation to the sharing of images, again, I point out that what we're talking about here is the sharing of images with third parties.</p> <p class="speaker">Cory Bernardi</p><p>Minister, I'm sorry, maybe you misunderstood my question. Sharing images with third parties—we're not talking about child pornography; we're talking about intimate images, which conjures up scenarios where people anticipate it's pornography, but I think Senator Leyonhjelm's made the point it's not. So where does it leave the circumstance where you have someone like Mr Henson, who is a photographer who takes photos of prepubescent children in a state of undress? Those children are not eligible or able to give consent to having those photos taken, yet what happens if someone shares those images or puts them on public display? Where is this line drawn? I come back to the other point: how is it that children—and this is once again an emotive term, but it's a legal term—minors, are able to have sexual relationships with their peers at the age of 16, and we say they're mature enough, and we're realistic enough to make that assessment, yet they're not able to consent to having their images displayed in a manner of their choosing, in the scenarios which Senator Leyonhjelm has put forward?</p> <p class="speaker">Mitch Fifield</p><p>It will be the ordinary reasonable person test that would be applied by the Federal Court.</p> <p class="speaker">Cory Bernardi</p><p>Minister, do you propose to respond to any of the specific questions as to whether the artistic claims of someone like Mr Henson would fall foul of this law?</p> <p class="speaker">Mitch Fifield</p><p>I hesitate to put myself in the place of the court and speak to particular works by particular artists, but my understanding is that there is an exemption for artistic works. But, obviously, those artistic works need to be in accord with other legislation.</p> <p class="speaker">Cory Bernardi</p><p>I just raise the question again: so it's okay for an 'artist'—and, for the benefit of Hansard, I put that in quotation marks—to take naked pictures of prepubescent children, but it's not okay for a 17-year-old to say, 'I'm happy for you to publish an image of me that's not a sexual image' to one of their peers? I just find this unusual, and I think that Senator Leyonhjelm makes a valid point—that we attribute any number of things to young adults, albeit, they are minors. We allow them to choose to smoke cigarettes if that's what they do, by legally allowing them to buy them; we allow them to engage in sexual relations; we have people who are advocating that they be allowed to vote; and yet we're not enabling them to consent to having their image shared in the manner in which they choose to do it. I just find that's not consistent with the approach of this legislation.</p> <p class="speaker">Mitch Fifield</p><p>I'll just cite part of the bill before us, which states:</p><p class="italic">(g) an ordinary reasonable person would consider the post acceptable, having regard to the following matters:</p><p class="italic">  (i)   the nature and content of the intimate image;</p><p class="italic">  (ii)   the circumstances in which the intimate image was posted;</p><p class="italic">  (iii)   the age, intellectual capacity, vulnerability or other relevant circumstances of the depicted person;</p><p class="italic">  (iv)   the degree to which the posting of the intimate image affects the privacy of the depicted person;</p><p class="italic">  (v)   the relationship between the end-user and the depicted person;</p><p>All these things would need to be taken into account. I can't really give what would in effect be a ruling, which would be the place of the Federal Court if a matter was brought forward, when it would have regard to the particular matters which I've just cited.</p> <p class="speaker">David Leyonhjelm</p><p>Minister, help me here. Where is the reference in the bill to art or artistic matters?</p> <p class="speaker">Mitch Fifield</p><p>I was using shorthand, I guess, in that those five provisions that I mentioned have in mind things such as artistic works.</p> <p class="speaker">Deborah O'Neill</p><p>I indicate that Labor will not be supporting the amendment. We concur with the minister's comments about the oversight of the court with regard to the matters discussed.</p><p>Question negatived.</p> <p class="speaker">David Leyonhjelm</p><p>I move Liberal Democrats amendment (4) on sheet 8368:</p><p class="italic">(4) Schedule 1, item 26, page 16 (line 17), omit paragraph 44B(1)(d).</p><p>As currently drafted, the bill allows someone who posts an image to be hit with a $100,000 fine if they are ordinarily resident in Australia or if the person depicted is ordinarily resident in Australia. This means an Australian could be hit with a fine when no image of an Australian is depicted, so no Australian is harmed. That is wrong. It is the role of our government to protect Australians from harm, not to make Australians conform with a model of behaviour that is harmless to any other Australians. Posting a picture of President Donald Trump going to the toilet in Trump Tower might be in poor taste, but it should not be against Australian law. The government serves the people, not the other way around. The government is not our mother and it is not our nanny.</p><p>My amendment would limit the bill so that someone who posts an image could be hit with a $100,000 fine only if the person depicted is ordinarily resident in Australia. I commend my amendment to the chamber.</p> <p class="speaker">Mitch Fifield</p><p>Senator Leyonhjelm is correct. Under the bill, if there is an Australian link, such as the perpetrator or the victim being ordinarily resident in Australia, the commissioner will be able to exercise his or her powers, including issuing removal notices to sites hosted in overseas jurisdictions. The proposed amendment would mean that the prohibition would only apply if the person depicted in the image is ordinarily resident in Australia, to my understanding. The effect of the amendment would prevent the commissioner exercising his or her powers if the victim wasn't ordinarily resident in Australia. The government won't be supporting the amendment.</p> <p class="speaker">Jordon Steele-John</p><p>The Greens do not support this amendment, as it seeks to prohibit the posting of an intimate image or threatening to post one only if the victim is an Australian resident and to remove the requirement for the perpetrator to be an Australian resident. There are obviously practical limits to the reach of the eSafety Commissioner, and it cannot be within their remit to police the entire internet, across all continents. But such a blunt instrument is unwise in this space.</p> <p class="speaker">Deborah O'Neill</p><p>Labor will not be supporting this amendment.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
|