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senate vote 2018-02-14#3
Edited by
mackay staff
on
2018-08-03 15:25:53
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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 - People under eighteen
Description
<p class="speaker">Jordon Steele-John</p><p>by leave—I move amendments (1) to (6) on sheet 8366 together:</p><p class="italic">(1) Schedule 1, item 3, page 3 (line 20), omit "a person", substitute "an adult".</p>- The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2018-02-14.49.1) introduced by Greens Senator [Jordon Steele-John](https://theyvoteforyou.org.au/people/senate/wa/jordon_steele-john) (WA), which means it failed.
- The amendment would have made sure that people under eighteen weren't covered by the bill. Liberal Senator [Mitch Fifield](https://theyvoteforyou.org.au/people/senate/victoria/mitch_fifield) (Vic) explained that:
- > *The government won't be supporting the amendments moved by the Australian Greens. The penalties apply to all persons to ensure that there is a strong deterrent to engaging in the sharing of intimate images without consent.*
- > *In practice, as Senator Steele-John alluded to, the eSafety Commissioner will take a very cautious approach in relation to any complaint made against a perpetrator under 18 years of age. *
- ### Motion text
- > *(1) Schedule 1, item 3, page 3 (line 20), omit "a person", substitute "an adult".*
- > *(2) Schedule 1, item 26, page 15 (line 19), omit "A person", substitute "An adult".*
- > *(3) Schedule 1, item 26, page 16 (line 17), after "person", insert "is an adult and".*
- > *(4) Schedule 1, item 26, page 21 (line 2), omit "A person", substitute "An adult".*
- > *(5) Schedule 1, item 26, page 21 (line 3), omit "the person", substitute "the adult".*
- > *(6) Schedule 1, item 26, page 21 (line 28), omit "A person", substitute "An adult".*
- ### 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">(2) Schedule 1, item 26, page 15 (line 19), omit "A person", substitute "An adult".</p><p class="italic">(3) Schedule 1, item 26, page 16 (line 17), after "person", insert "is an adult and".</p><p class="italic">(4) Schedule 1, item 26, page 21 (line 2), omit "A person", substitute "An adult".</p><p class="italic">(5) Schedule 1, item 26, page 21 (line 3), omit "the person", substitute "the adult".</p><p class="italic">(6) Schedule 1, item 26, page 21 (line 28), omit "A person", substitute "An adult".</p><p>As I mentioned in my speech during the second reading debate, we have serious concerns around the, hopefully, unintended implications of this legislation for the people under the age of 18 who will potentially face steep civil penalties under this regime. The government have indicated that the application of these penalties to people under the age of 18 is not their intention; however, to ensure that this unintended consequence does not arise, we seek to have this limitation enshrined in the legislation.</p><p>I would like to remind the chamber that the United Nations Committee on the Rights of the Child's general comment No. 10 states:</p><p class="italic">Children differ from adults in their physical and psychological development, and their emotional and educational needs. Such differences constitute the basis for the lesser culpability of children in conflict with the law. These and other differences are the reasons for a separate juvenile justice system and require a different treatment for children. The protection of the best interests of the child means, for instance, that the traditional objectives of criminal justice, such as repression/retribution, must give way to rehabilitation and restorative justice objectives in dealing with child offenders. This can be done in concert with attention to effective public safety.</p><p>The Law Council of Australia also notes:</p><p class="italic">Financial penalties will rarely be appropriate for children and young people. The Law Council suggests that the civil penalties regime could include not only infringement notices, formal warnings and take down notices, but also diversionary/rehabilitation processes, such as the possibility of a conference, attendance at counselling and participating in courses relating to cyber bullying and sexting.</p> <p class="speaker">Mitch Fifield</p><p>Thank you, Senator Steele-John. The government won't be supporting the amendments moved by the Australian Greens. The penalties apply to all persons to ensure that there is a strong deterrent to engaging in the sharing of intimate images without consent.</p><p>In practice, as Senator Steele-John alluded to, the eSafety Commissioner will take a very cautious approach in relation to any complaint made against a perpetrator under 18 years of age. The eSafety Commissioner will firstly look to engage with the perpetrator in an informal manner and change behaviour. This informal approach has been successful under the existing cyberbullying regime. The commissioner does have the discretion to use other light-touch remedies, including issuing a formal warning notice. It is expected only light-touch remedies would be required in matters involving a perpetrator under 18 years of age. Strong remedies, including civil penalties, would only be used in exceptional cases, such as for a repeat offender where other remedies have been ineffective.</p><p>A contravention of the prohibition in the bill and/or a failure to comply with a removal notice triggers a civil penalty order provision contained in the Regulatory Powers Act. If the eSafety Commissioner does decide to apply for a civil penalty order, the court has the discretion as to whether it orders the person to pay the penalty. When determining the appropriate penalty amount, the court must take into account matters including the nature and extent of the contravention; the nature and extent of any loss or damage suffered because of the contravention; the circumstances in which the contravention took place; and whether the person has previously been found by a court to have engaged in any similar activity. So I think there are important things to bear in mind in terms of the operation of this legislation.</p> <p class="speaker">Jordon Steele-John</p><p>I'd like to ask the minister whether he is aware that there is a very, very substantive amount of research in the area of child justice that directly contravenes the idea of the application of criminal or civil penalties to people under the age of 18, due to the physiological reality that the development of a child is not at the same stage as the development of an adult and so it is most appropriate to apply diversionary, rehabilitative and educational approaches in those cases. It is my view that it was never the intention of the government to have this criminal regime apply to children, because I cannot in good conscience imagine that the minister, who is a man of great capacity, could possibly believe that it would in any circumstance be productive or just to apply a penalty of up to $107,000 to a child. So I would ask the minister again: is he comfortable with the possibility created by this legislation of applying such a penalty to children in the face of overwhelming evidence given in many forums, including by commissioners of this government, that such approaches are simply not effective, nor just, in relation to children?</p> <p class="speaker">Mitch Fifield</p><p>I should point out that this is not a criminal regime for underage individuals that is being proposed here. This is a civil penalties regime that has application to the whole community. As I indicated before, the intention is that this is something that would be used in the case of repeat offenders, where other remedies have been ineffective. Senator Steele-John is quite right to point out there is a range of alternative remedies and it's appropriate that they are pursued. But, where you have repeat offenders, it is appropriate that we have a civil penalties regime in place. Just because a person is under the age of 18 does not mean that they are necessarily without the capacity to determine right from wrong. We are very much of the view that this is appropriate.</p><p>If I do follow the logic of what Senator Steele-John has said, however, I would assume, although I suspect it's not the case, that Senator Steele-John will not be supporting the criminal provisions put forward by NXT, because, to my understanding, they would apply to people below the age of 18. The government is not putting in place, through this legislation, a criminal regime to apply to people below the age of 18. I'm not suggesting that, where there are criminal provisions, they shouldn't apply to people below the age of 18, but I'm just seeking to follow the thread through with Senator Steele-John as to what the implications of his position in relation to the civil penalties regime might be for his stance in relation to criminal penalties amendments that might be moved later.</p> <p class="speaker">Jordon Steele-John</p><p>As the minister has rightly noted, it would be only in extreme cases that we would reach the stage of intervention in relation to children. Would the minister not agree that there are almost, imaginably, no cases in which a person below the age of 18 would be able to feasibly meet a civil penalty of $107,000? In fact, the burden of meeting this penalty would fall upon the child's family or extended family. In that case, wouldn't it simply be better to follow the advice of the Australian Law Council, guided by the views of the United Nations and embodied within the UN Convention on the Rights of the Child, and put in place a comprehensive, diversionary, educated, evidence based approach to dealing with this very serious issue in relation to children?</p><p>I would also remind the minister at this point in time that these questions with regard to the action of civil penalty regimes on children and their possible impacts are something we could have explored had the government agreed to my suggestion to allow the Senate to perform its role as a house of review and refer this bill to committee. These are serious issues which relate to the community as a whole, with a massive impact on children, both as victims and as perpetrators. This is a complex legislative area and, while I appreciate that the minister is providing us with the opportunity to scrutinise the legislation in this period, it would have been so much easier to answer these questions and produce a piece of legislation as robust, comprehensive and durable as that which is deserved by the victims of this most heinous crime.</p> <p class="speaker">Mitch Fifield</p><p>I should point out that the civil penalties are only up to $105,000. As I've indicated before, if there were to be a civil penalty sought by the eSafety Commissioner through the Federal Court then it would be in circumstances where other remedies have been ineffective—where there'd been a repeat offender—and the courts, in determining the appropriate penalty amount, again, have to take into account the nature and extent of the contravention, the nature and extent of any loss or damage suffered, the circumstances of the contravention, and whether the person has previously been found by a court to have engaged in similar conduct. The courts can also determine not to apply a civil penalty. But, again, I emphasise that the eSafety Commissioner would firstly seek a non-formal resolution of the complaint, followed if necessary by a formal written warning, followed if necessary by an infringement notice. They have the option of enforceable undertakings, injunctions and, ultimately, civil penalties. So there are really six layers of the graduated approach that could be taken in these circumstances.</p><p>In terms of consultation, there was extensive public consultation last year. Senator Steele-John is right that this legislation hasn't been referred to a committee of the Senate for inquiry. That is something that sometimes happens, but often it doesn't happen. In this case I surmise that a majority of colleagues were not in favour of a Senate inquiry, given the extensive public consultation that had occurred and the extensive examination that colleagues have already given this legislation.</p> <p class="speaker">Pauline Hanson</p><p>One Nation will not be supporting the Greens amendment to this bill. After listening to the senator's comments with regard to this, I note the Greens speak of people being underage, under adult age, and being children in their development and the way they think and decipher everything. I find this very hypocritical of the Greens, after seeing their policies. They wish to reduce the voting age to 16. The Constitution says that if you want to be a member of parliament you have to be on the roll, and being on the roll you are then entitled to stand for election as a member of parliament. So in one case the Greens say, 'They're underage; they don't have the development or the skills and they should be treated as children,' but on the other hand, in their policies, they're quite happy for someone who is 16 years old to be voting and to have their say. One Nation will not be supporting the Greens in this amendment.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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