Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016 - 2017 - 2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ENHANCING ONLINE SAFETY (NON-CONSENSUAL SHARING OF INTIMATE
IMAGES) BILL 2018
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Attorney-General, the Honourable Christian Porter MP)
AMENDMENTS TO THE ENHANCING ONLINE SAFETY (NON-CONSENSUAL
SHARING OF INTIMATE IMAGES) BILL 2018
(Government)
GENERAL OUTLINE
1. The purpose of this amendment to the Enhancing Online Safety (Non-consensual
Sharing of Intimate Images) Bill ('the Bill') and the Explanatory Memorandum to the Bill is
to introduce aggravated offences for the offensive use of a carriage service where the
conduct involves private sexual material.
2. The amendment expands upon the civil prohibition and civil penalty regime
introduced in the Bill, applying increased criminal penalties applying to the most serious
instances of sharing of intimate images.
3. The amendments will introduce a definition of 'private sexual material', create two
aggravated offences, and require consent be taken into account when determining
offensiveness in Part 10.6 of the Criminal Code 1995.
4. The standard aggravated offence will apply an increased penalty to the offence for
using a carriage service to menace, harass, or cause offence, where the commission of that
offence involves the transmission, making available, publication, distribution, advertisement
or promotion of private sexual material.
5. The special aggravated offence will apply an increased penalty to the offence for
using a carriage service to menace, harass, or cause offence, where the commission of that
offence involves the transmission, making available, publication, distribution, advertisement
or promotion of private sexual material, and, before the commission of that offence, three or
more civil penalty orders were made against the person under the civil prohibition and civil
penalty regime introduced in the Bill.
6. In May 2017, the Australian Government, in conjunction with states and territories,
agreed a national statement of principles relating to the criminalisation of the non-consensual
sharing of intimate images. The offences introduced by these amendments are consistent
with those principles.
7. The new offences will complement existing offences in the Criminal Code for using a
carriage service to menace, harass, or cause offence, and using a carriage service to make a
threat.
8. The offences will only apply to the distribution of private sexual material depicting
persons 18 years and over, ensuring no overlap with existing offences for distributing child
pornography material, which carry significantly higher penalties.
9. The introduction of these specific new offences will send a clear message to the
community that the sharing of private sexual material is not acceptable, and will expand the
range of options available to victims.
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10. Further detail about the measures in the Bill and their human rights implications are
provided below.
FINANCIAL IMPACT
11. The Bill will have no financial impact on Government revenue.
Abbreviations used in the Explanatory Memorandum
Criminal Code Criminal Code Act 1995
ICCPR International Covenant on Civil and Political Rights
TIA Act Telecommunications Interception and Access Act 1979
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2018
1. This amendment to 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. To the extent that the measures in the amendment to the
Bill may limit those rights and freedoms, such limitations are reasonable, necessary and
proportionate in achieving the intended outcomes of the amendment.
Overview of the Bill
2. The amendment to the Bill makes amendments to the Criminal Code Act 1995 (the
Criminal Code) to introduce aggravated offences for the use of a carriage service to menace,
harass, or cause offence where the conduct involves private sexual material.
3. The amendments will introduce a definition of 'private sexual material', create two
aggravated offences, and require consent be taken into account when determining
offensiveness in Part 10.6 of the Criminal Code.
4. The standard aggravated offence will apply an increased penalty to the offence of
using a carriage service to menace, harass, or cause offence, where the commission of that
offence involves the transmission, making available, publication, distribution, advertisement
or promotion of private sexual material.
5. The special aggravated offence will apply an increased penalty to the offence of using
a carriage service to menace, harass, or cause offence, where the commission of that offence
involves the transmission, making available, publication, distribution, advertisement or
promotion of private sexual material, and, before the commission of that offence, three or
more civil penalty orders were made against the person under the civil prohibition and civil
penalty regime introduced in the Bill.
6. The conduct criminalised in this amendment to the Bill is already criminalised by the
Commonwealth offence of using a carriage service to menace, harass or cause offence
(section 474.17 of the Criminal Code). This offence draws out particular and specific forms
of offending online conduct under that offence for the application of a higher maximum
penalty.
Human rights implications
7. The human rights engaged by the amendment to the Bill are those set out in the
International Covenant on Civil and Political Rights (ICCPR). The amendment to the Bill
promotes or engages the following human rights:
rights engaged by criminal offences and proceedings:
o the right to freedom from arbitrary detention
o right to presumption of innocence,
prohibition on interference with privacy and attacks on reputation,
the right to protection from exploitation, violence and abuse, and
the right to freedom of expression.
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Rights engaged by criminal offences and proceedings
(a) Right to security of the person and freedom from arbitrary detention - Article 9(1) of
the ICCPR
8. The right to personal liberty set out in Article 9(1) of the ICCPR requires that persons
not be subject to arrest and detention except as provided for by law, and provided that neither
the arrest nor the detention is arbitrary. In addition to having a lawful basis for detention, the
prohibition on arbitrary detention under Article 9(1) requires that in all circumstances, the
detention of the particular individual must be justified as reasonable, necessary and
proportionate to the end that is sought.
9. The amendment to the Bill engages the right to freedom from arbitrary detention
under Article 9(1) by increasing the maximum penalties for particular forms of conduct
criminalised under an existing offence, for which a court may lawfully prescribe a period of
imprisonment for a person found guilty of the offence.
10. The maximum penalty of 5 years' imprisonment for the standard aggravated offence
is necessary to ensure that the serious offence of distributing private sexual material in a way
reasonable persons would consider offensive, is matched by commensurate punishment. The
penalty is reasonable to achieve the legitimate objective of ensuring that the courts are able to
hand down sentences to online offenders that reflect the seriousness of their offending. The
penalty is reasonable given that the penalties will only be applied by a court if a person is
convicted of an offence as a result of a fair trial in accordance with the procedures as
established by law. Maximum penalties are set to adequately deter and punish a worst case
offence, while supporting judicial discretion and independence. The penalty will only be
applied by a court if the prosecution has proved the elements of the offence beyond
reasonable doubt. Further, the penalty will apply only to offences committed at or after the
commencement of the amendments.
11. There are clear and serious social and systemic harms associated with online abuse.
The penalty is proportionate in that it supports the courts' discretion when sentencing
offenders. It is the Australian Government's responsibility to enshrine maximum penalties for
Commonwealth offences in legislation, and the penalty is sufficiently high to allow courts to
impose appropriate punishments for the most serious offences.
(b) Right to presumption of innocence - Article 14(2) of the ICCPR
12. The presumption of innocence imposes on the prosecution the burden of proving the
charge and guarantees that no guilt can be presumed until the charge has been proved beyond
reasonable doubt.
13. The amendment to the Bill engages this right by applying the presumption set out in
section 475.1B of the Criminal Code to the new aggravated offences. The presumption in
section 475.1B provides that if a physical element of the offence consists of a person using a
carriage service to engage in particular conduct, and the prosecution proves beyond
reasonable doubt that the person engaged in the relevant criminal conduct, then it is
presumed, unless the person proves to the contrary, that the person used a carriage service to
engage in that conduct.
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14. The purpose of this presumption is to address problems encountered by law
enforcement agencies in proving beyond reasonable doubt that a carriage service was used to
engage in the relevant criminal conduct. Often evidence that a carriage service was used to
engage in the criminal conduct is entirely circumstantial, consisting of evidence, for example,
that the defendant's computer had chat logs or social media profile information saved on the
hard drive, that the computer was connected to the internet, and that records show the
computer accessed particular websites that suggest an association with the material saved on
the hard drive.
15. The amendment to the Bill relies on the Commonwealth's telecommunications power
under the Australian Constitution. Therefore, the requirement in the underlying offence that
the relevant criminal conduct be engaged in using a carriage service is a jurisdictional
requirement. A jurisdictional element of the offence is an element that does not relate to the
substance of the offence, or the defendant's culpability, but marks a jurisdictional boundary
between matters that fall within the legislative power of the Commonwealth and those that do
not.
16. Given this purpose of the presumption, and that the aggravated offences are not
unreasonable in the circumstances and maintain the rights of the defendant, the amendment to
the Bill does not violate the presumption of innocence.
Right to protection against arbitrary and unlawful interferences with privacy - Article 17(1)
if the ICCPR
17. Paragraph 1 of Article 17 of the ICCPR recognises the right to protection against
arbitrary or unlawful interference with privacy, family, home or correspondence. Paragraph 2
of Article 17 of the ICCPR recognises the right of everyone to the protection of the law
against such interference. In order for an interference with the right to privacy to be
permissible, the interference must be authorised by law, for a reason consistent with the
ICCPR, and reasonable in the particular circumstances. Any interference with privacy must
be proportionate to a legitimate end and be necessary in the circumstances of any given case.
18. The special aggravated offence will be considered a 'serious offence' for the purposes
of the Telecommunications (Interception and Access) Act 1979 (TIA Act). The TIA Act sets
out conditions that must be met before a law enforcement agency can intercept or access
telecommunications for the purposes of investigating the new offence. Lawfully intercepted
information or interception warrant information can only be authorised if the investigation or
proceeding relates to an offence punishable by a maximum penalty of imprisonment for 7
years or more. The TIA Act prohibits law enforcement agencies from intercepting
telecommunications, or making historical or prospective authorisations to access stored
communications, unless an appropriate warrant is in force. Requirements under the TIA Act
ensure that interference with the privacy of any person or persons that may result from
intercepting or accessing telecommunications data is one of a range of considerations taken
into account when issuing a warrant. To the extent that the issuing of a warrant itself entails a
limitation on the right to privacy that limitation is reasonable, necessary and proportionate.
To the extent that the right to privacy is impinged, the interference corresponds to a pressing
social need, that is, the need for law enforcement agencies to effectively investigate and
prosecute crime.
19. The aggravated offences created by the amendment to the Bill are fundamentally
directed towards protecting the privacy and reputation of vulnerable people. Offensive use of
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a carriage service for dealings in private sexual material is a serious breach of a person's right
to privacy, and often has serious, harmful and reputational consequences for the person
depicted in the private sexual material. Bu increasing penalties for existing criminal conduct
where this involves private sexual material, the amendment to the Bill promotes the
protection of a person's privacy and reputation. The objectives of harm prevention and
minimisation, and protection of privacy and reputation, are legitimate objectives, achieved
through reasonable and proportionate means, and are not arbitrary.
Freedom of expression - Article 19(2) of the ICCPR
20. Article 19(2) of the ICCPR provides that everyone shall have the right to freedom of
expression. This right includes the freedom to seek, receive and impart information and ideas
of all kinds, through any media of a person's choice. Article 19(3) provides that the right to
freedom of expression may be subject to restrictions for specified purposes provided in the
right, including the protection of national security or public order (which includes prevention
of disorder and crime) where such restrictions are provided by law and are necessary for
attaining one of these purposes. The requirement of necessity implies that any restriction
must be proportional in severity and intensity to the purpose sought to be achieved.
Limitations on freedom of expression on the grounds of public order include limitations for
the purpose of preventing crime. In order for the proposed laws to be considered a necessary
restriction on freedom of expression on the grounds of public order, the restriction must be
clearly defined.
21. The Bill engages the right to freedom of expression in Article 19 to the extent that it
increases the penalties for the existing offence of using a carriage service to menace, harass
or cause offence, where that use of a carriage service involves private sexual material, and
where that use of a carriage service involves private sexual material and three or more civil
penalty orders have already been made against the person under the Bill, as this may have an
impact on the use of carriage services to seek, receive and impart information.
22. The Bill aims to prevent criminal activity by targeting the distribution and
transmission of a particular type of material that occurs in a way reasonable persons would
consider offensive. The meaning of 'offensive' for the purposes of Chapter 10 of the
Criminal Code is narrow: it means conduct or content likely to cause a significant emotional
reaction or psychological response, and is determined by taking into account the standards of
morality, decency, and propriety generally accepted by reasonable adults, any literary, artistic
or educational merit, and the general character of the material. The additional requirement to
have regard to whether the subject of the private sexual material consented to its distribution
is created by the amendment to the Bill. To the extent that the right to freedom of expression
in Article 19 is restricted, these restrictions are provided by law and for the purpose of
preventing online abuse.
23. The Bill also promotes the right to freedom of expression by further protecting the
right to seek, receive and impart information using a carriage service, free from the threat of
image based abuse.
Summary
24. Any interference with human rights occasioned by this Bill is in pursuit of a
legitimate aim - the prevention of online abuse. The Bill is compatible with human rights
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given that, to the extent that it may limit human rights, those limitations are reasonable,
necessary and proportionate.
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NOTES ON AMENDMENTS
Amendment 1: Schedule 2, page 28 (line 1) to page 35 (line 24)
1. Amendment 1 omits the Schedule and substitutes a new Schedule 2. Schedule 2
amends the Criminal Code to insert two new aggravated offences for using a carriage service
to menace, harass, or cause offence where that conduct involves private sexual material, and
a definition of private sexual material.
Schedule 2 - Amendments of the Criminal Code Act 1995
Item 1
2. This item will insert definitions of 'private sexual material' and 'subject' of private
sexual material into section 473.1 of the Criminal Code.
3. The definition of 'private sexual material' will capture material that depicts a person
who is engaged in, or appears to be engaged in, a sexual pose or sexual activity, and material
the dominant characteristic of which is a depiction of a sexual organ or the anal region of a
person, or the breasts of a female person.
4. Material will only be considered 'private sexual material' under this definition in
circumstances that a reasonable person would regard as giving rise to an expectation of
privacy. The qualification requiring that reasonable persons must regard the depiction as
giving rise to an expectation of privacy, allows community standards and common sense to
be imported into a decision about private sexual material. To avoid doubt, the definition of
'private sexual material' is not intended to capture the publication or distribution of material
that would otherwise be considered as warranting classification under a scheme implemented
through the Classification (Publications, Films and Computer Games) Act 1995, its
associated codes and guidelines, or industry codes and guidelines. Given the commercial
nature of such material, an expectation of privacy on behalf of the persons depicted in the
material would not be warranted.
5. The definition of private sexual material only applies to depictions of persons who
are, or appear to be, 18 years of age or older. Material of a sexual nature that depicts persons
who are, or appear to be, under the age of 18 is captured by the offences related to child
pornography material in sections 474.19 and 474.20 of the Criminal Code. The definition is
drafted so as to exclude any overlap between the offence for distributing private sexual
material and the offences for child pornography material.
6. The definition of private sexual material is neutral and intended to apply to a broad
range of material without inferring any subjective judgement on the creation, existence,
possession or otherwise of the material. The offensiveness or criminality of the aggravated
offences in Item 4 arises by virtue of the conduct and is not inherent to the private sexual
material itself.
7. Unlike the definition of 'child pornography material' in section 473.1, which includes
material that 'describes' persons under the age of 18 engaging in sexual activity, and is
intended to cover all word-based material, such as written text, spoken word and songs, the
definition of 'private sexual material' is limited to actual images. Child pornography material
includes descriptions because although descriptions may not directly involve the abuse of a
child in its production, its availability can promote further demand for similar material and
therefore the greater abuse of children. Given that it is the act of offensively distributing the
'private sexual material' that is criminal, and no offensiveness or criminality is inherent to the
'private sexual material' itself, it is unnecessary to safeguard production in the same way as
for child pornography material.
8. The definition of private sexual material includes material the dominant characteristic
of which is depiction of the breasts of a female person. The reference to breasts in the plural
is intended to also capture a depiction of a singular breast, as per the rules set out in the Acts
Interpretation Act 1901 subsection 23(b).
9. The reference to 'breasts of a female person' is intended to include the breasts of
transgender women, relying upon an interpretation of the definition of gender identity under
the Sex Discrimination Act 1984.
10. The definition for private sexual material captures material that appears to depict a
person engaged in sexual activity or a sexual pose. The use of the phrase 'appears to depict'
is intended to capture material that has been altered or doctored to falsely portray a person in
sexual activity or a sexual pose. For example, an image of a person's face taken from an
innocuous image may be transposed onto an image of another person's body in a sexual pose.
11. The definition of 'subject' of private sexual material will capture the person or
persons depicted in the private sexual material. The 'subject' of private sexual material only
refers to the person who is engaged in or appears to be engaged in a sexual pose or sexual
activity, or whose sexual organ, anal region or breasts are depicted in the private sexual
material. The definition of 'subject' does not apply to other persons who may be depicted in
the private sexual material who are not depicted in a sexual pose or sexual activity, or whose
sexual organ, anal region or breasts are not depicted in the private sexual material. For
example, if private sexual material depicts the sexual organ of person A and also depicts
person B, who is fully clothed and not engaged in a sexual pose or sexual activity, then the
subject of the private sexual material will be person A but not person B.
Item 2
12. Item 2 inserts the marker (1) before section 473.4 to allow for the insertion of a new
subsection (2) below the existing section 473.4.
Item 3
13. Item 3 inserts in section 473.4 consent of the subject as a new matter to be taken into
account when determining whether a particular use of a carriage service is offensive.
14. Section 473.4 sets out matters to be taken into account by the trier of fact in deciding
whether reasonable persons would regard a particular use of a carriage service as being, in all
the circumstances, offensive. These matters include standards of morality and decency
accepted by reasonable adults, any literary, artistic or educational merit, and the general
character of the material, for example, whether it is of legal, medical or scientific character.
This provision is intended to act as a guide in determining whether particular material or use
of a carriage service is considered offensive.
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15. Item 3 creates a new matter to be taken into account by the trier of fact in deciding
whether reasonable persons would regard a particular use of a carriage service as being, in all
the circumstances, offensive, where that use of the carriage service involves dealings in
private sexual material.
16. When the use of a carriage service involves dealings in private sexual material, the
trier of fact must have regard to whether the subject or subjects of the private sexual material
consented to the particular dealing of that material. For the purposes of this section, 'consent'
is defined in subsection 473.4(4) to mean free and voluntary agreement.
17. Subsection 473.4(3) makes clear that the consideration of consent does not limit the
considerations already listed in section 473.4 to be taken into account when determining
whether the use of the carriage service is offensive.
Item 4
18. Item 4 inserts new section 474.17A into the Criminal Code, creating aggravated
offences for using a carriage service to menace, harass, or cause offence involving private
sexual material.
Proposed subsection 474.17A(1)
19. Subsection 474.17A(1) creates a standard aggravated offence where a person commits
an offence against section 474.17 of the Criminal Code, and the commission of that offence
involves the transmission, making available, publication, distribution, advertisement or
promotion of private sexual material.
20. To make out the offence, the prosecution must prove that:
a. the person committed an offence against section 474.17(1):
i. the person used a carriage service (conduct - absolute liability)
ii. reasonable persons would regard the use of the carriage service as
being menacing, harassing, or offensive (circumstance)
iii. the person was reckless as to whether reasonable persons would regard
the use of the carriage service as being menacing, harassing, or
offensive (fault element)
b. the use of the carriage service involved the transmission, making available,
publication, distribution, advertisement or promotion of material
(circumstance)
c. the person was reckless as to whether the use of the carriage service involved
the transmission, making available, publication, distribution, advertisement or
promotion of material (fault element)
d. the material is private sexual material (circumstance)
e. the person was reckless as to whether the material is private sexual material
(fault element)
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21. The first element of the underlying offence (section 474.17) requires that a person
used a carriage service. The requirement that a carriage service is used to engage in the
conduct in subsection 474.17(1)(a) provides the relevant connection to the Commonwealth's
telecommunications power under the Australian Constitution. As the offence will be inserted
into Subdivision C of Division 474 of the Criminal Code, the presumption set out in section
475.1B of the Criminal Code - that conduct is engaged in using a carriage service - will
apply. This presumption provides that, in relation to the element of the offences that a
carriage service was used, if the prosecution proves beyond reasonable doubt that the person
engaged in the relevant criminal conduct, then it is presumed, unless the person proves to the
contrary, that the person used a carriage service to engage in that conduct.
22. By virtue of section 475.1B, absolute liability applies to the first element of the
underlying offence (section 474.17). This means that there are no fault elements for the
physical element of the offence, and the defence of mistake of fact in section 9.2 of the
Criminal Code is unavailable for that element. Absolute liability for the use of a carriage
service is appropriate for this element because it is a jurisdictional element. A jurisdictional
element marks a jurisdictional boundary between matters that fall within the legislative power
of the Commonwealth and those that do not. This element provides the requisite link to the
Constitutional head of power, without relating to the substance of the offence, or the
defendant's culpability.
23. The second element of the underlying offence, that reasonable persons would regard
the use of the carriage service as being in all the circumstances, menacing, harassing, or
offensive, imposes an objective, but qualitative test.
24. The fact that the use of the carriage service occurs in a way that reasonable persons
would regard as being, in all the circumstances, menacing, harassing or offensive constitutes
a circumstance in which the offending conduct must occur. By application of the default fault
elements in section 5.6 of the Criminal Code, the fault element of recklessness will apply to a
physical element of an offence that is a circumstance. 'Recklessness' as it applies to a
circumstance is defined in section 5.4 of the Criminal Code.
25. In determining whether reasonable persons would regard the use of the carriage
service as being in all the circumstances, menacing, harassing, or offensive, regard should be
had to section 473.4 of the Criminal Code, which sets out matters to be taken into account in
deciding whether a particular use of a carriage service is, in all the circumstances, offensive.
These matters include:
a. The standards of morality, decency and propriety generally accepted by
reasonable adults; and
b. the literary, artistic or educational merit (if any) of the material;
c. the general character of the material (including whether it is of a medical, legal
or scientific character); and
d. where the particular use of a carriage service involves the transmission,
making available, publication, distribution, advertisement or promotion of
private sexual material, then regard must be had to whether the subject or
subjects of the material gave consent to the transmission making available,
publication, distribution, advertisement or promotion of the material.
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26. By virtue of the matters listed in section 473.4, not all instances of the distribution of
private sexual material will be captured by the offence in 474.17A, recognising that material
captured by the definition of 'private sexual material' may be transmitted for legitimate
purposes, such as medical, artistic or educational purposes. For example, a doctor emailing an
image of a sexual organ to a colleague for the purpose of obtaining a second opinion on a
medical condition, or a publication of an article on a website with anthropological or
historical images that depict the breasts of a female person, would not be considered
offensive distributions on their face.
27. The offence is not intended to capture private communications between consenting
adults or interfere with private sexual relationships. For example, a willing participant in a
sexual relationship sending photos of themselves in a sexual pose to their willing partner,
would not be considered an offensive use of a carriage service on its face.
28. The High Court of Australia has endorsed a narrow view of the word 'offensive' in a
similar context (see Monis v R (2013) 249 CLR 92 referring to the interpretation of
'offensive' in relation to section 471.12 of the Criminal Code). In that case, the High Court
set the bar to a very high standard as to what could ultimately be viewed as being sufficiently
offensive to breach the Criminal Code. The Court found that: it had to be calculated or likely
to arouse significant anger, significant resentment, outrage, disgust or hatred in the mind of a
reasonable person; it would not be sufficient if the use would only hurt or wound the feelings
of the recipient in the mind of a reasonable person; it is not intended to proscribe uses of
carriage services which convey insults or slights which are likely to engender hurt feelings,
nor is it intended to secure civility or courtesy in communications; and it must be likely to
have a serious effect upon the emotional well-being of an addressee.
29. The reasonable person for the purposes of the objective test is reasonably tolerant and
understanding, reasonably contemporary in his or her reactions, is neither a social anarchist
nor a social cynic, is a constructed proxy for the judge or jury, and knows of the allegedly
offensive use and its attendant circumstances, rather than viewing the matter from the
perspective of the person to whom the allegedly offensive use is directed (Monis v R, [44]
and [45]).
30. Paragraphs 474.17A(1)(b) and (c) require that the offensive use of the carriage service
involves dealings in private sexual material. The actions listed, including transmission,
making available, publication, distribution, advertisement and promotion, are intended to
cover the range of activities that a person can engage in when using a carriage service.
31. By application of the default fault elements in section 5.6 of the Criminal Code, the
fault element of recklessness will apply to the circumstance that the use of the carriage
service involves dealings in material, and the circumstance that the material is private sexual
material.
32. The determination of whether material is private sexual material is a matter for the
trier of fact.
33. Subsection 474.17A(3) clarifies that a defence to the underlying offence (section
474.17) will apply to paragraph 474.17A(1)(a) of the standard aggravated offence.
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34. By virtue of section 473.5 of the Criminal Code, the offence does not apply to a
person distributing private sexual material if that person is a carrier, a carriage service
provider, an internet service provider, or an internet content host.
35. The offence under section 474.17A(1) will be punishable by a maximum penalty of
5 years' imprisonment. The maximum penalty level proposed is higher than the penalty for
the offence in section 474.17 for using a carriage service in a way that reasonable persons
would consider menacing, harassing or offensive. The maximum penalty of 5 years for the
standard aggravated offence is consistent with the serious nature of offending behaviour,
given the requirement for the distribution of the private sexual material to occur in a way that
reasonable persons would consider, in all the circumstances, offensive.
Proposed subsection 474.17A(4)
36. Subsection 474.17A(4) creates a standard aggravated offence where a person commits
an offence against section 474.17 of the Criminal Code, and the commission of that offence
involves the transmission, making available, publication, distribution, advertisement or
promotion of private sexual material, and, before the commission of that offence, three or
more civil penalty orders were made against the person under the civil prohibition and civil
penalty regime introduced in the Bill.
37. To make out the offence, the prosecution must prove that:
a. the person committed an offence against section 474.17(1):
i. the person used a carriage service (conduct - absolute liability)
ii. reasonable persons would regard the use of the carriage service as
being menacing, harassing, or offensive (circumstance)
iii. the person was reckless as to whether reasonable persons would regard
the use of the carriage service as being menacing, harassing, or
offensive (fault element)
b. the use of the carriage service involved the transmission, making available,
publication, distribution, advertisement or promotion of material
(circumstance)
c. the person was reckless as to whether the use of the carriage service involved
the transmission, making available, publication, distribution, advertisement or
promotion of material (fault element)
d. the material is private sexual material (circumstance)
e. the person was reckless as to whether the material is private sexual material
(fault element), and
f. before the commission of the underlying offence, three or more civil penalty
orders were made against the person under the Regulatory Powers (Standard
Provisions) Act 2014 in relation to contraventions of proposed subsection
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44B(1) of the Enhancing Online Safety Act 2015 (circumstance - absolute
liability).
38. A civil penalty order can be made against the person under the Regulatory Powers
(Standard Provisions) Act 2014 in relation to contraventions of proposed subsection 44B(1)
of the Enhancing Online Safety Act 2015 when a person posts, or threatens to post, an
intimate image without the consent of the person depicted in the image. 'Intimate image' is
defined in Item 18 of the Bill.
39. Subsection 474.17A(7) applies absolute liability to the element of the special
aggravated offence that three or more civil penalty orders were made against the person
before the commission of the offence. This means that there are no fault elements for the
physical element of the offence, and the defence of mistake of fact in section 9.2 of the
Criminal Code is unavailable for that element. Absolute liability is appropriate for this
element because it does not affect the culpability of the person, but rather sets the perimeters
of the offence. If the prosecution was required to prove awareness on the part of the
defendant that three or more civil penalty orders were made against the defendant before the
commission of the offence, defendants would be able to avoid liability by demonstrating that
they did not turn their minds to that issue (despite the fact that they had committed the
prohibited conduct).
40. The offence under section 474.17A(4) will be punishable by a maximum penalty of
7 years' imprisonment. The maximum penalty level is significantly higher than the penalty
for the underlying offence in section 474.17 for using a carriage service to menace, harass or
cause offence because it applies where a person commits an offence to the criminal standard
and has repeatedly been found liable for similar conduct at the civil standard. This indicates
that the person has continued disregard for the effect the distribution of private sexual
material can have upon victims. According to a report published in May 2017 by the Royal
Melbourne Institute of Technology University, the psychological impact on victims can be
significant, and negative implications (whether perceived or actual) can affect victims'
reputation, family, employment, social relationships, and even personal safety.
41. As telecommunications offences, Category A geographical jurisdiction, as set out in
section 15.1 of the Criminal Code, will apply to the standard aggravated offence in subsection
474A(1) and the special aggravated offence in subsection 474.17A(4). The application of
Category A jurisdiction means that regardless of where conduct constituting an offence
occurs, if the results of that conduct affect Australia, the person responsible is generally able
to be prosecuted in Australia. Category A jurisdiction also covers an Australian citizen in
another country who engages in conduct that is an offence under the proposed amendment,
even if their conduct does not constitute an offence in that country and the results of that
conduct do not affect Australia.
Double jeopardy
42. Subsection 474.17(8) makes it clear that a person is not liable to prosecution for an
offence against the underlying offence in section 474.17 or the special aggravated offence in
subsection 474.17A(4) for conduct for which he or she has already been convicted or
acquitted under the standard aggravated offence in subsection 474.17A(1).
43. Subsection 474.17A(9) will make clear that subsection 474.17A(1) does not prevent
an alternative verdict under section 474.17B. Section 474.17B allows for an alternative
7
verdict if the trier of fact is not satisfied that the defendant is guilty of the offence in section
474.17A(1), but is satisfied beyond reasonable doubt that the defendant is guilty of the
underlying offence in section 474.17.
44. Subsection 474.17(10) makes it clear that a person is not liable to prosecution for an
offence against the underlying offence in section 474.17 or the standard aggravated offence in
subsection 474.17A(1) for conduct for which he or she has already been convicted or
acquitted under the special aggravated offence in subsection 474.17A(4).
45. Subsection 474.17A(11) will make clear that subsection 474.17A(4) does not prevent
an alternative verdict under section 474.17B. Section 474.17B allows for an alternative
verdict if the trier of fact is not satisfied that the defendant is guilty of the offence in section
474.17A(4), but is satisfied beyond reasonable doubt that the defendant is guilty of the
underlying offences in section 474.17 and subsection 474.17A(1).
46. Subsection 474.17(12) makes it clear that a person is not liable to prosecution for an
offence against the standard aggravated offence in subsection 474.17A(1) or the special
aggravated offence in subsection 474.17A(4) for conduct for which he or she has already
been convicted or acquitted under the underlying offence in section 474.17.
When conviction set aside
47. Subsection 474.17A(13) makes it clear that a conviction against subsection
474.17A(4) must be set aside in the event that one or more orders made against the person
under the Regulatory Powers (Standard Provisions) Act 2014 in relation to contraventions of
proposed subsection 44B(1) of the Enhancing Online Safety Act 2015 are set aside or
reversed on appeal and, if the order or orders in relation to contraventions of proposed
subsection 44B(1) of the Enhancing Online Safety Act 2015 had never been made then the
person could not have been convicted of the offence under subsection 474.17A(4).
48. This ensures procedural fairness so that, should a person be subsequently found not
liable for one or more civil penalty orders which formed the basis of the element under
paragraph 474.17A(4)(d), they are not subject to the higher maximum penalty applying to the
special aggravated offence for their criminal conduct.
49. Subsection 474.17A(14) provides that, should a conviction against subsection
474.17A(4) be set aside under subsection 474.17A(13), this does not prevent the prosecution
instituting proceedings under the underlying offence in section 474.17 or the standard
aggravated offence in subsection 474.17A(1) for the same conduct.
Alternative verdict
50. Section 474.17B(1) allows for an alternative verdict if the trier of fact is not satisfied
that the defendant is guilty of the offence in subsection 474.17A(1), but is satisfied beyond
reasonable doubt that the defendant is guilty of the underlying offence in section 474.17.
51. Section 474.17B(2) allows for an alternative verdict if the trier of fact is not satisfied
that the defendant is guilty of the offence in subsection 474.17A(4), but is satisfied beyond
reasonable doubt that the defendant is guilty of the underlying offence in section 474.17 or
the standard aggravated offence in subsection 474.17A(1).
8
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