15 August 2018


I rise to speak on the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2018. It has been a long time coming, but it is a good thing that we are here.

It is essential that the parliament sends a clear and specific message to the community that the sharing of intimate images without consent is not acceptable. Labor is deeply committed to keeping Australians safe online and therefore supports this bill which introduces a civil penalty regime to combat the non-consensual sharing of intimate images.

The substance of this bill was not the government's starting point. That is the fact of the matter. But Labor welcomes the government's change of heart and backflip in relation to the criminalisation of image based abuse online. It is unfortunate that this government has wasted a lot of time insisting Australia doesn't need a specific criminal offence for image based abuse. So we're pleased they finally accepted the evidence, changed their tune and followed Labor's lead. The experts agree that the sharing of intimate images without consent is a serious form of abuse which can cause significant and ongoing harm. It should be a specific criminal offence. Labor will support the government's amendments, given they adopt Labor's clear and longstanding position on this issue.

Turning to the substance, as I said, Labor will support this government's amendment to introduce aggravated offences for the offensive use of a carriage service where the conduct involves private sexual material, because it does reflect this longstanding position of the opposition. The amendment expands upon the civil prohibition and civil penalty regime in the bill, applying increased criminal penalties to the most serious instances of sharing of intimate images.

In October 2015, Labor first introduced a bill to criminalise the sharing of private sexual material without consent. Shortly after, the Senate Legal and Constitutional Affairs References Committee established an inquiry into this issue, during which the Commonwealth Director of Public Prosecutions expressed concerns that there are limitations on existing Commonwealth laws to adequately deal with conduct then commonly referred to as revenge porn. The Australian Federal Police noted, 'Uniformity in legislation across Australia would be most helpful for police to be able to investigate and charge perpetrators.'

Following that, and over two years ago now, Labor took a policy to criminalise image based abuse to the 2016 federal election. We promised to do that within the first 100 days of being elected because we understood the urgency of this matter, an urgency which is shared by the Australian people. In October 2016, Labor reintroduced its private member's bill in the current parliament. However, it was removed from the Notice Paper on 23 May 2017 because the government refused to call it on for debate for eight consecutive sitting Mondays. For years Labor and others have said there should be a specific criminal offence, yet time and again this government maintained that existing criminal law is enough and there is no need for a specific criminal offence.

RMIT research indicates that four in five Australians agree it should be a crime to share sexual or nude images without permission and:

… there is a broad agreement within the Australian community as to the seriousness of this issue, regardless of whether someone has experienced it personally.

The experts agree that the sharing of intimate images without consent is a serious form of abuse which can cause significant and ongoing harm. For example, in April 2016, the COAG Advisory Panel on Reducing Violence against Women and their Children released a report recommending:

To clarify the serious and criminal nature of the distribution of intimate material without consent, legislation should be developed that includes strong penalties for adults who do so.

All this time the government has justified its failure to introduce a specific Commonwealth offence for image based abuse on the basis that there is an existing offence under section 474.17 of the Criminal Code for misuse of telecommunication services to menace, harass or cause offence. Now, finally, with this amendment, the government has changed its tune. As I said, Labor will support the government's amendments to introduce criminal penalties given the amendments adopt Labor's clear and longstanding position on this very issue.

Here I would like to pay tribute to the efforts of a range of stakeholders in the community who have worked hard over many years to make progress on this issue, as well as a number of my Labor colleagues who have prosecuted and championed this outcome for many years—in particular the member for Griffith, the member for Gellibrand, the member for Hotham and the member for Isaacs, the shadow Attorney-General.

If you turned on the radio or TV this morning you could be forgiven for thinking that the Turnbull government, and indeed the Minister for Communications, had suddenly woken up and decided, of their own accord, that there should be a specific offence for the sharing of private sexual material without consent. On Nine's Today show, the minister said, 'We do have some existing criminal penalties for what is known as revenge porn or the sharing of intimate images without consent. We don't think that's strong enough. We want to have a specific aggravated offence that sends a clear message to creeps that it's not on.' And, 'We want to create a specific aggravated offence. At the moment there are general criminal penalties.' The reality is this: the Minister for Communications wasted a great deal of time refusing to acknowledge the weight of evidence and refusing to acknowledge that a specific offence is warranted. The truth is that this minister had to be dragged to this point and was finally forced to respond when earlier this year the Senate amended the bill to criminalise image based abuse, in line with Labor's private member's bill of 2015. So, it was more than a bit rich when the minister, in responding to Fran Kelly on ABC Radio National this morning, said he had not changed his mind on the matter:

Fran Kelly: Minister, am I right in saying that you didn't support criminal sanctions in the past? Have you changed your mind on this?

Senator Fifield: No. We do already have some criminal provisions in the law. What we put before the parliament was a civil penalties regime, because we don't have civil penalties in relation to this sort of activity at the moment.

It is fortunate that, in getting us to this point, the Attorney-General and the shadow Attorney-General were able to work through the issues involved in this matter relatively quickly to resolve the criminal amendments now before us. I commend the constructive approach of the Attorney-General over the past few months, which stands in stark contrast to his predecessor. I again acknowledge the heavy lifting, in terms of policy development on the Labor side, done by them, and by the colleagues I have mentioned.

It is poor but predictable form that the Minister for Communications did nothing to acknowledge this in the same way, or the constructive progress that came out of the office of the Attorney-General, his own department, and the bipartisanship that was shown by the Attorney-General and his counterpart, the member for Isaacs. This needs to be put on the record.

All that aside, Labor welcomes progress on this issue. As I said, it is essential that the Australian parliament sends a clear message to the community that the sharing of intimate images without consent is not acceptable. As the Australian Information Commissioner stated in a submission to the department's consultation on the bill last year:

The non-consensual sharing of these images is a serious invasion of privacy, which has the potential to cause severe harm, distress and humiliation to the victim. Further, the harm that can be caused through the sharing of such images is exacerbated by rapidly increasing technological capacity for capturing images and making recordings, and the ability to distribute digital material on a vast scale.

Labor supports the bill because it promotes the right to protection from exploitation, violence and abuse by prohibiting the non-consensual sharing of intimate images. The purposes of the bill are to deter people from engaging in this behaviour and to provide the eSafety Commissioner with a range of enforcement mechanisms to address contraventions of the prohibition.

According to a research report published by RMIT in May 2017, one in five Australians, one in two Australians with a disability, and one in two Indigenous Australians have experienced the non-consensual sharing of intimate images. This is an utter disgrace. The psychological impact on victims can be significant, and negative implications can affect their reputation, their family, their employment, their social relationships and their personal safety. While the non-consensual sharing of intimate images can often occur as a result of the ex-partner of a victim distributing images of the victim for the purposes of seeking revenge, it also can involve acquaintances or complete strangers distributing the images. The practice is generally intended to cause harm, distress, humiliation and embarrassment, whether through the actual sharing and distribution of those images or through the threat of sharing, often in an attempt to control, blackmail, coerce or punish a victim, commonly referred to as sextorsion. Other motives might include sexual gratification, supposed fun, social notoriety and/or financial gain.

The explanatory memorandum to the bill acknowledges the harmful consequences as well. It states:

The non-consensual posting of an intimate image is a serious breach of a person’s right to privacy. It involves the sharing of a personal and intimate image with a person or people with whom it was not intended to be shared. Not only is this a fundamental breach of trust by the person sharing the image, it often has long lasting detrimental consequences for the person depicted in the image.

…   …   …   

The posting of an intimate image without consent is also an attack on a person’s reputation. Not only does it cause harm and distress for the victim, it can also have broader impacts for the victim’s reputation.

The Australian public recognise the abhorrence of this practice and the significant harm it causes victims, and expect an appropriate regime to be enacted to prevent and minimise harm to victims or potential victims.

Labor believes, and we have long believed, that the significance of this harm warrants criminal penalties, plain and simple. And we are pleased that the government has come around to this view.

I wish to turn to options for redress. Labor supports victims having a range of options available to them to deal with the harmful issue of image based abuse. While not all victims of image based abuse will want to enact criminal proceedings, some may prefer to go to the eSafety Commissioner under the civil regime and others may wish to go to the platforms directly. Labor acknowledges and appreciates that the more prominent social media providers and content hosts are working very hard to develop innovative technological measures or already have robust processes in place intended to assist victims whose images have been shared without consent. Labor encourages these social media providers and content hosts to continue this good work. We note that the bill will not prevent victims from approaching these services in the first instance, rather than the Office of the eSafety Commissioner, if they so choose.

Labor recognises the strong partnerships that social media services and content hosts have established with the commissioner and encourages them to continue, as this will be pivotal in protecting Australians against the non-consensual sharing of intimate images. Labor also understands how important it is to have a strong legal framework in place to strengthen the commissioner's ability to resolve matters informally and in a graduated manner according to seriousness. Labor acknowledges that the Office of the eSafety Commissioner will seek to use established relationships with social media service providers and content hosts to facilitate the taking down of images and, thus, a removal notice or other enforcement action may not be required in every case. At the other end of the scale, Labor also understands how important it is to have a strong legal framework that recognises the criminal seriousness of this form of abuse.

Against this backdrop, Labor notes some of the key concerns of the DIGI Group, as stated in its submissions to the department's consultation on the discussion paper on the non-consensual sharing of intimate images. These concerns include that the bill duplicates existing industry efforts to remove image based abuse and may not represent the most targeted or effective use of taxpayer resources and may even disincentivise industry innovation in addressing image based abuse. The bill does not require victims to first exhaust companies' complaint channels, for example. Also, the bill may not improve compliance around the removal of image based abuse, given that major digital platforms already operate efficient take-down policies, some of which see the removal of offending content faster than the 48-hour time frame stipulated in the bill, and given that the eSafety Commissioner is likely to continue to encounter difficulty in compelling overseas sites and rogue operators.

In view of these concerns, Labor moved an amendment that was carried in the Senate to ensure that within three years of the commencement of the bill the minister should cause to be conducted a review of the civil penalty regime for the non-consensual sharing of intimate images, along with the preparation of a report and tabling of a report in each house of the parliament. There is a similar provision in section 107 of the Enhancing Online Safety Act 2015 in relation to the cyberbullying regime. Labor thanks the Senate for their support of this amendment.

In conclusion, as I said, Labor will support this bill and the government amendment to this bill. I reiterate the comments of the Leader of the Opposition in his November 2016 White Ribbon Day speech nearly two years ago:

So called revenge porn should be a crime across Australia but it is not. Criminalisation of so called revenge porn should be a Federal law, not just left to a patchwork of state laws, consistent with the Commonwealth DPPs recommendation.

Labor is pleased that we have finally reached the point of making those words a reality.