Page 1946 - Week 06 - Wednesday, 7 June 2017
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The fact that such a high proportion of adults and young people take part in these consensual activities highlights the importance of robust laws about non-consensual sharing of these images and the need for accessible enforcement measures to ensure these behaviours are mitigated and that those responsible for this behaviour are held accountable for it.
The legislation the Greens have developed is based on synthesising the key findings from the Australian Law Reform Commission report Serious invasions of privacy in a digital era; the 2016 Senate inquiry into the phenomenon colloquially referred to as “revenge porn”; the “more than revenge” universities round table in 2016; the New South Wales Department of Justice consultation on the sharing of intimate images without consent, 2016; Not just ‘revenge pornography’, an interim report from the ARC discovery project into the legal implications of revenge pornography 2017; the COAG Law, Crime and Community Safety Council’s national statement of principles relating to the criminalisation of non-consensual sharing of images 2017; the experiences of Victoria, South Australia and the United Kingdom and their evaluations of the effect of the current legislation; and the draft bill before the New South Wales parliament.
My legislation proposes the development of a new part of the Crimes Act to deal with the invasion of privacy, recognising that not all intimate observations are necessarily sexual in nature. It implements recommendations 2 and 3 of the 2016 Senate inquiry, being that the ACT ensures that our criminal justice system recognises three offences: knowingly or recklessly recording an intimate image without consent; knowingly or recklessly sharing intimate images without consent; and threatening to take and/or share intimate images without consent, irrespective of whether or not these images exist.
It adopts terms like “document” rather than “image” to include things like audio recording as well as ensuring that things like digitally altered-images and postering of photos are included. It includes a wider definition of “intimate” to broaden the scope of offences to include maliciously sharing images on social media that are not necessarily sexual or nude, but that are nevertheless considered to be intimate by the person who is depicted in them, in line with the recommendations in the research.
It creates a clearer, stronger definition of “consent” more in line with national standards by adding a definition of consent to be free and voluntary agreement in line with the 2010 Australian Law Reform Commission report on family violence and expands the definition of “consent” to include a positive action element.
The proposed legislation also says clearly that consent is not given when a condom is removed during sex, when a condition of the sex was the wearing of the condom. This is what Mr Hanson referred to as stealthing. I think everyone would agree that it is way outside community expectations that that could possibly be regarded as consent.
We have also included a provision for the courts to order offenders to take reasonable action to remove, retract, recover, delete or destroy an intimate document involved in
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