Page 1940 - Week 06 - Wednesday, 7 June 2017
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The bill provides that a person found guilty will face a penalty of three years in jail or 300 penalty units, which is again consistent with New South Wales. As we are dealing with serious consequences of the offence, we believe there should also be serious penalties, and that is what this bill delivers.
We have also created a secondary offence, that is, to threaten to capture or distribute intimate images. Some of the stories that we have heard include not only the actual release of intimate images but of people threatening to do so, to intimidate, harass or coerce another person. While not as potentially damaging as actually releasing those images, it definitely is traumatic and should be unlawful. That is why this bill also makes it an offence to threaten to distribute or capture intimate images.
The provisions also cover the fact that threats can be made explicitly or implicitly, and it does not matter whether the images exist at the time or not. This way, even threatening to take intimate images and distribute them will put you foul of the law. Given the harm that we have seen from this sort of predatory behaviour, we believe it is vitally important that this forms part of our response to the problem.
Having outlined the key offence provisions, I would like to talk about some of the exceptions and protections that we have included. There is no doubt that this is a complex and difficult area. We have tried to draft exceptions and protections that indicate clearly what the intent of this legislation is, which is the knowing or reckless distribution of intimate images without consent or with reckless intent.
For example, we have included provisions for young people, who are within two years age of each other, regarding whether consent is not at issue. The bill also includes the provision that, if the offender is under 16 years of age, action must not commence without specific approval from the DPP. There are specific exceptions for legitimate uses, such as for the purpose of law enforcement, medical procedures or other circumstances where a reasonable person would consider the conduct acceptable, taking into account all the circumstances.
While these may not be strictly necessary at law, it is necessary to be clear about what is and is not intended to be covered. We are talking about the deliberate, harmful acts of one person against another in circumstances that I believe we would all feel should be protected by law.
Another important element that we have imported from New South Wales, based on the feedback that we have received and that was not in the exposure draft, is that of rectification. We know from many of the stories, and through research, that the primary goal of many victims is actually to have the images removed. That is their number one goal. While it could be said that a court could provide these powers, anyway, we believe, as does New South Wales and many of the groups that we have consulted with, that a definite, direct line of recourse is extremely valuable as a tool to offer those affected by these sorts of crimes.
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