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Criminal Code Amendment (Private Sexual Material) Bill 2015

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2013-2014-2015

 

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

CRIMINAL CODE AMENDMENT (PRIVATE SEXUAL MATERIAL) BILL 2015

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

and

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

 

 

 

 

 

 

(Circulated by the authority of Tim Watts MP)

 

 

 



 

CRIMINAL CODE AMENDMENT (PRIVATE SEXUAL MATERIAL) BILL 2015

 

GENERAL OUTLINE

 

1.                   The Bill will amend the Criminal Code Act 1995, which contains the Criminal Code , to introduce three new telecommunications offences.

 

2.                   The Bill contains important new offences that will prescribe appropriate penalties for persons involved in image-based sexual exploitation, also known as ‘revenge porn’. The offences reflect the community’s increased use of telecommunications to engage in harmful and abusive behaviour of a sexual nature and the harm that can be caused.

 

3.                   The proposed offences prohibiting revenge porn focus on the use offenders make of technological tools to engage in sexual exploitation. The offences are designed to respond to the harm that is caused to a person that has their private sexual material shared without their consent.

 

FINANCIAL IMPACT

 

4.                   The Bill will have no financial impact.

NOTES ON CLAUSES

 

Preliminary

 

Clause 1 - Short title

 

5.                   Clause 1 is a formal provision specifying the short title of the Bill. It provides that when the Bill is enacted, it is to be cited as the Criminal Code Amendment (Private Sexual Material) Act 2015.

 

Clause 2 - Commencement

 

6.                   This clause provides that the Bill would commence on the day after it receives Royal Assent.

 

Clause 3 - Schedules

 

7.                   This is a formal clause that enables the Schedules to amend the Act. It would provide that each Act that is specified in a Schedule is amended or repealed as set out in the applicable items in the Schedule, and that any other item in a Schedule has effect according to its terms. The Bill contains only one Schedule.

 

SCHEDULE 1 - AMENDMENTS

 

Criminal Code Act 1995

 

Item 1: Section 473.1 of the Criminal Code

 

8.                   Item 1 would insert proposed definitions of ‘private sexual material’ and ‘subject’ which provides that ‘private sexual material’ has the meaning given by proposed section 474.24D and ‘subject’ of private sexual material has the meaning given by proposed section 474.24D.

 

Item 2: After Subdivision D of Division 474 of the Criminal Code

 

9.                   Item 2 would insert a new Subdivision DA into Division 474 of the Criminal Code containing offences related to the use of a carriage service for private sexual material.

 

Proposed section 474.24D Meaning of private sexual material

 

10.               Proposed section 474.24D provides the meaning of ‘private sexual material’ to define the material covered by the offences in Subdivision DA.

 

11.               ‘Private sexual material’ is defined in a different way to the definitions of ‘child pornography material’ and ‘child abuse material’ in the Criminal Code. This is because it is necessary to define who is a ‘subject’ of the material for the purposes of these new offences.

 

12.               ‘Private sexual material’ is defined to cover a range of material including that which depicts a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity. The definition also covers material that depicts a sexual organ or anal region of the person or the breasts of a person who is female or who is a transgender or intersex person who identifies as female. This is different to the definition of ‘child pornography material’ which covers material the dominant characteristic of which depicts for a sexual purpose the sexual organs, the anal region or the breasts (in the case of a female) of a person. This is because the requirement for there to be a sexual purpose will unduly limit the scope of the material covered by the offences.

 

13.               Material that depicts a person in a manner or context that is sexual is also covered by the definition. Proposed subparagraph 474.24D(a)(ii) follows the language of paragraph (b) of the definition of “intimate image” in section 40 of the Summary Offences Act 1996 (Vic) to ensure that different cultural contexts are covered . It covers, for example, an image of a Muslim woman without her religious headscarf on.

 

14.               The express reference to a transgender or intersex person in proposed subparagraph 474.24D(a)(iv) is not intended to limit the interpretation of the existing definitions in the Criminal Code, including the definition of child pornography material.

 

15.               Proposed paragraph 474.24D(b) ensures that ‘private sexual material’ must be material that a reasonable person in the position of the subject would expect to be kept private. This sets up an objective test, but also requires the particular circumstances of the subject to be considered in determining whether the material is covered by the offences in Subdivision DA.

 

Proposed section 474.24E Using a carriage service for private sexual material

 

16.               Proposed section 474.24E would make it an offence for a person to use a carriage service to transmit, make available, publish, distribute, advertise or promote private sexual material. ‘Private sexual material’ is defined in proposed section 474.24D (see also the explanation of this definition).

 

17.               The maximum penalty for the proposed offence is 3 years imprisonment, reflecting the seriousness of this type of conduct.

 

18.               The proposed offence is particularly aimed at use of the Internet, email, SMS and other online applications or technological tools to engage in revenge porn. It is intended to cover the range of activities that a person can engage in to carry out revenge porn, including, amongst others, viewing; copying; downloading; making available for viewing, copying or downloading; sending and exchanging. This includes conduct engaged in for reward, or where there has been a previous instance of such conduct in relation to the material.

 

19.               Intention applies as the fault element for the conduct listed in paragraph 474.24E(1)(a) and recklessness is the fault element for the circumstance that the material is private sexual material, provided in paragraph 474.24E(1)(b). ‘Intention’ and ‘recklessness’ are defined in section 5.2 and 5.4 of the Criminal Code, respectively.

 

20.               The specific fault element for paragraph 474.24E(1)(c) is provided in paragraph 474.24E(1)(d) as recklessness but could also be proved by knowledge or intention .

 

21.               Recklessness applies as the default fault element for paragraph 474.24E(1)(e). The prosecution will be required to prove either that the defendant was reckless as to whether the conduct would cause distress or harm that has actually occurred, or that there is a risk of distress or harm and the defendant was reckless as to that fact. Recklessness requires the prosecution to prove that the defendant was aware of a substantial risk that the relevant circumstance or result would occur and that in the circumstances it was not justifiable to take the risk.

 

22.               Proposed subsection 474.24E(2) has the effect that transmitting, making available, publishing, distributing, advertising or promoting private sexual material to the subject is not covered by the offence.

 

23.               Proposed subsection 474.24E(3) defines ‘consent’ for the purposes of paragraph 474.24E(1)(c).

 

24.               Proposed subsection 474.24E(4) defines ‘causing distress or harm’ for the purposes of paragraph 474.24E(1)(e) to include substantially contributing to distress or harm. The inclusion of this subsection is consistent with other provisions in the Criminal Code that deal with causing harm.

 

25.               The inclusion of subsection 474.24E(5) is consistent with other provisions in Division 474. Absolute liability is set out in section 6.2 of the Criminal Code.  The effect of applying absolute liability to an element of an offence means that no fault element needs to be proved and the defence of mistake of fact under section 9.2 of the Criminal Code is not available.  Accordingly, the prosecution will not be required to prove that the defendant knew, or was reckless as to whether, he or she engaged in the relevant conduct using a carriage service. Absolute liability is appropriate and required for the element of the offences that the person engaged in the conduct using a carriage service because this element is a jurisdictional element of the offence.  A jurisdictional element of the offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth and those that do not.  The issue of whether the person intended to use a carriage service is not relevant to their culpability.  This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.

 

Proposed section 474.24F Using a carriage service - making a threat about private sexual material

 

26.               Proposed section 474.24F would make it an offence for a person make a threat to another person to transmit, make available, publish, distribute, advertise or promote private sexual material of which the second person or a third person is a subject.

 

27.               The maximum penalty for the proposed offence is 3 years imprisonment, reflecting the seriousness of this type of conduct.

 

28.               The fault element for proposed subsection 474.24F(1)(a) is intention to engage in the conduct.

 

29.               The fault element for proposed subsection 474.24F(1)(b) is intention that the second person will fear (or apprehend) that the threat will be carried out. A threat can be express or implied and may be conditional or unconditional (see the definition of ‘threat’ in the Dictionary of the Criminal Code).

 

30.               Proposed subparagraph 474.24F(1)(c)(i) is included to cover, for example, a situation where a person makes a threat to compel the second person to stay in a relationship by threatening to transmit etc. private sexual material involving the person. This subparagraph applies regardless of whether the making of the threat (or the potential transmission etc. of the material) will cause distress or harm. The fault element for this subparagraph is intention .

 

31.               The fault element for proposed subparagraph 474.24F(1)(c)(ii) is recklessness . The distress or harm could be caused to the person who receives the threat, or to the subject. For example, if the threat is made to the subject’s parent, this offence will apply if distress or harm could potentially be caused to the parent or the subject.  

 

32.               Proposed subparagraph 474.24F(1)(d)(i) provides that any use of telecommunications to make a threat in relation to private sexual material will be covered by the proposed offence, including by way of making a telephone call, sending a message by facsimile, sending an SMS message, or sending a message by email or some other means using the Internet.

 

33.               Proposed subparagraph 474.24F(1)(d)(ii) provides that any means of making a threat to another person to transmit, make available, publish, distribute, advertise or promote private sexual material using a carriage service will be covered by the proposed offence, including threats made in person.

 

34.               Proposed subsection 474.24F(2) provides that there is no requirement that the threat actually instil fear in the person who receives the threat that the threat would be carried out, for the purposes of subsection 474.24F(1).

35.               Proposed subsection 474.24F(3) provides that the private sexual material involved in the threat does not have to actually exist.

 

36.               Proposed subsection 474.24F(4) defines ‘causing distress or harm’ for the purposes of subparagraph 474.24F(1)(c)(ii) to include substantially contributing to distress or harm. The inclusion of this subsection is consistent with other provisions in the Criminal Code that deal with causing harm.

 

37.               The inclusion of subsection 474.24F(5) is consistent with other provisions in Division 474 (see also the explanation of subsection 474.24E(5)).

 

Proposed section 474.24G Possessing, controlling, producing, supplying or obtaining private sexual material for use through a carriage service

 

38.               Proposed section 474.24G would make it an offence for a person to possess, control, produce, supply or obtain private sexual material, for a commercial purpose or for the purpose of obtaining a benefit, with the intention that it be used, by that person or another person, in committing an offence against proposed section 474.24E or section 474.24F (the primary offences).

 

39.               The proposed offence will carry a maximum penalty of 5 years imprisonment, higher than the maximum penalty proposed for the primary offences, reflecting the aggravated circumstance of this offence.

 

40.               The proposed offence covers a broad range of preparatory conduct undertaken with the intention to commit the primary offences. For example, the offence would apply to the possession of private sexual material, provided the person with possession intended that the private sexual material be made available on the Internet without the consent of the subject, and where there is a risk that this would cause distress or harm to the subject, and the person intended to obtain a benefit. The offence would also apply to the actual production of private sexual material, if persons involved in the production intended to place the material on the Internet without the consent of the subject, and where there is a risk that this would cause distress or harm to the subject, and the person intended to obtain a benefit.

 

41.               Proposed paragraph 474.24G(1)(d) provides that the person must have possession or control, or engage in production, supply or obtain private sexual material for a commercial purpose or for the purpose of obtaining a benefit. ‘Benefit’ is defined in the dictionary to the Criminal Code to include any advantage, and is not limited to property.

 

42.               Proposed subsection 474.24G(2) provides that a person can be found guilty of an offence against subsection 474.24G(1) even if it is impossible to commit the primary offences. This provision reflects the emergent common law consensus that a person can be convicted of attempt - here, essentially a preparatory offence - even though completion of the offence was impossible in the circumstances. In other words, the law of attempt holds that it is irrelevant if a particular result does not occur.

 

43.               Proposed subsection 474.24G(3) provides that it is not an offence to attempt to commit an offence against subsection 474.24G(1). Subsections 474.24G(2) and 474.24G(3) are drawn from the offence of attempt under section 11.1 of the Criminal Code. Given that the conduct in proposed section 474.24G is preparatory to the primary offences, it is appropriate that it contain such provisions.

 

44.               This offence is intended to exclude intermediaries, caches and hosts of broader user-generated content because they will not have the requisite intention in paragraph 474.24G(1)(c) that the material be used in committing an offence.  

 

Proposed section 474.24H Defences in respect of private sexual material

 

45.               The defences proposed in section 474.24H mirror the defences in the Criminal Code for offences relating to ‘child pornography material’ and ‘child abuse material’, along with the addition of a new defence for ‘media activities’ in proposed subsection 474.24H(3).

 

46.               The defendant bears the burden of pointing to evidence which supports the defences. It will generally be much easier for a defendant, rather than the prosecution, to produce evidence showing that the circumstances to which the defences apply do in fact exist.

 

47.               Proposed subsection 474.24H(3) provides a defence for the offences in sections 474.24E and 474.24G for journalists and people otherwise engaged in media activities. Proposed paragraph (a) is an exhaustive list of the media purposes for which the otherwise offensive conduct may be engaged in.

 

48.               For the purpose of proposed paragraph 474.24H(3)(b), intention will have the meaning given by subsection 5.2(3) of the Criminal Code.

 

49.               Proposed paragraph 474.24H(3)(c) requires the person to reasonably believe the conduct to be in the public interest, which involves both an objective test and a subjective test. The trier of fact would need to ask what did the person actually believe (the subjective test) and then consider whether that belief was objectively reasonable.

 

Proposed section 474.24J Consent to commencement of proceedings where defendant under 18

 

50.               Proposed section 474.24J provides that the Attorney-General must give consent for a person under the age of 18 to be prosecuted under these offences.

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Criminal Code Amendment (Private Sexual Material) Bill 2015

 

1.                   The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

 

2.                   The Bill amends the Criminal Code to introduce three new telecommunications offences to respond to the problem of revenge porn.

 

Human rights implications

 

3.                   The bill positively engages with the following rights and freedoms:

·          The right to equality and non-discrimination

·          The right to privacy and attacks on reputation

 

The right to equality and non-discrimination

 

4.                   The rights of equality and non-discrimination are contained in Articles 2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR). The right to equality and non-discrimination encompasses a positive obligation to protect and advance the fulfilment and enjoyment of the rights to equality and non-discrimination for all people.

 

5.                   The UN Committee on the Elimination of All Forms of Discrimination Against Women has stated that gender-based violence, including domestic violence, is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men.

 

6.                   The Bill recognises that all forms of violence against women must be eliminated to advance the fulfilment and enjoyment of the rights to gender equality and non-discrimination for women. The behaviour targeted by the offences introduced by the Bill can be a form of violence against women, causes harm and distress to women, and undermines women’s ability to enjoy rights and freedoms on a basis of equality with men.

 

The right to privacy and attacks on reputation

 

7.                   The prohibition on interference with privacy and attacks on reputation is contained in Article 17 of the ICCPR. The prohibition on interference with privacy and attacks on reputation prohibits unlawful or arbitrary interferences with a person's privacy, family, home and correspondence. It also prohibits unlawful attacks on a person's reputation. It provides that persons have the right to the protection of the law against such interference or attacks.

 

8.                   The Bill promotes the right to protection of the law against interference with the right to privacy and attacks on reputation. The proposed offences protect people from having their private sexual material used without their consent and prohibit the use of private sexual material to engage in attacks on a persons’ reputation. 

 

9.                   The bill may be detrimental to the following rights and freedoms:

 

·          The right to freedom of opinion and expression

 

The right to freedom of opinion and expression

 

10.               Freedom of expression in Article 19(2) of the ICCPR protects freedom of expression in any medium, for example written and oral communications, the media, public protest, broadcasting, artistic works and commercial advertising. It applies not only to the imparting and seeking of ideas and information but also to receiving information. Freedom of expression carries with it special responsibilities and may be restricted on several grounds, as provided for by law and when necessary to protect the rights or reputations of others, national security, public order, or public health or morals.

 

11.               The Bill may engage the right to freedom of expression because it places a restriction on communications.

 

12.               The limitation is reasonable and necessary for the purpose of protecting the rights and reputations of victims of revenge porn. The Bill is intended to protect people from the substantial harm or distress caused by having their private sexual material shared without their consent, or the threat of having their private sexual material shared.

 

13.               The Bill uses the least restrictive approach because it defines the private sexual material covered by the offences, proposes offences which apply only to the conduct that is intended to be outlawed, and does not censor or restrict media coverage where it is believed to be in the public interest. The Bill is designed to use the least rights restrictive approach and is compatible with the right to freedom of expression in Article 19(2) of the ICCPR.

 

Conclusion

 

14.               The Bill is compatible with human rights because it promotes and enhances human rights under the ICCPR and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

Tim Watts MP