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2016
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMINAL CODE AMENDMENT (PRIVATE SEXUAL MATERIAL) BILL 2016
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
(Circulated by the authority of Tim Watts MP)
CRIMINAL CODE AMENDMENT (PRIVATE SEXUAL MATERIAL) BILL 2016
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 2016.
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that each Act that is specified in a Schedule is amended or repealed as set out in the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 would lead to inconsistent results if an evidential burden were placed on the defendant for
the identical defences in the Criminal Code, but not for the proposed new offences in the Bill.
47. Reversing the onus of proof may be justified where it is particularly difficult for a
prosecution to meet a legal burden. It may be considered justifiable to reverse the onus of
proof on an issue that is 'peculiarly within the knowledge' of the accused. 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.
48. The seriousness of a crime may also justify placing a legal burden of proof on the
accused. For the defences proposed in section 474.24H, the seriousness of the offending
conduct means that the defendant should not even consider engaging in the conduct in
reliance on the defence unless they can point to evidence suggesting that defence applies.
49. 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.
50. 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.
51. 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.
52. Reversal of the onus of proof for the defence in proposed subsection 474.24H(3) is
justified because the defence goes to why the defendant engaged in the conduct, the intention
of the defendant and the reasonable belief of the defendant, all of which are peculiarly within
the knowledge of the defendant.
Proposed section 474.24J Consent to commencement of proceedings where defendant
under 18
53. 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