SUMMARY OFFENCES (FILMING AND SEXTING OFFENCES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 9 March 2016.)

Ms CHAPMAN ( Bragg—Deputy Leader of the Opposition) (11:58): I rise to speak on the Summary Offences (Filming and Sexting Offences) Amendment Bill 2016 and indicate that the opposition will be supporting this bill. However, I indicate that there will be amendments which I will canvass in the course of the contribution I propose to make.

The bill before us seeks to amend the Summary Offences Act 1953 and generally is in response to an increase in young people sending sexually explicit material, normally via their mobile phone (otherwise known as sexting), and is also in response to what is commonly called 'revenge pornography'. Revenge pornography is the publication of explicit material depicting someone who has not consented to that publication and with the intent of causing them humiliation, embarrassment and the like. The government recognised that this was a matter that did need to be addressed, and I think issued a discussion paper—or it may have even been the bill at that stage—late last year for public comment and consideration.

Essentially, the bill now before us does two things: it applies the current offence of distribution of an invasive image to children offenders as well as adults, and it also provides a separate penalty if the images depict a minor. The existing penalty for distribution will remain a $10,000 fine or up to a two-year imprisonment penalty. Where the image is of a minor, the penalty will be a $20,000 fine or up to four years' imprisonment.

The second thing the bill does is propose a new offence of threatening to distribute an invasive image or an image obtained from indecent filming. This will apply to a person who was intending to provoke fear that the threat will be carried out and who was recklessly indifferent to whether that fear was provoked. In this area, if the image is of a minor, the penalty will be a $10,000 fine or up to two years' imprisonment, and in any other case a $5,000 fine or up to one year's imprisonment.

In order to avoid the criminalisation of the distribution of innocent images of minors, the definition of 'invasive image' in the bill excludes an image of a person who falls within the standards of morality, decency and propriety generally accepted by reasonable adults in the community; that is the wording that is used in the bill. The government claims that the bill will give prosecutors a better range of offences, as currently offences involving invasive images depicting children under 18 years can usually only be charged under the child exploitation material offences in the Criminal Law Consolidation Act.

The penalties for child exploitation are much higher and include a different definition of the offending material and, as we explored in a previous bill before the parliament this morning, it is important to recognise what we are dealing with as being quite distinct and not within the area of criminal sanction against conduct that relates to child exploitation. That is a serious and universally condemned conduct and it has very serious penalties attached to it.

The Law Society had considered it in its Women Lawyers Committee, Children and the Law Committee and Criminal Law Committee, together with the University of Adelaide Law School, and generally the society is supportive of the bill. As I indicated, so are we. However, the Law Society did consider that the Criminal Law Consolidation Act prosecutions should only be progressed against a minor with the consent of the Attorney-General. We have presented that opportunity in a preceding bill to the government and they have declined it.

However, I make the point that when we are introducing this legislation with the new level of offences, for the reasons which have been laid out and which we accept, it is important that we do protect people against being inappropriately prosecuted for the more serious offences, particularly if the alleged offender is a minor. There was, however, reference to two other matters that were raised with us; one is that, in reference to the definitions in respect of publication of breasts, they should be explicitly defined as 'bare breasts'.

The complication that comes with providing for the offence to relate to breasts is that they can be partially exposed and would be caught by the definition in the offence. I say this on the basis that it is a fair assessment that, in the contemporary world, seeing a partially disclosed female breast of a mature female when wearing a bikini top, a bra or some partial covering may be offensive to some people but largely is accepted by the community as being a reasonable vision, and one that is certainly permitted and frequently paraded in person, in literature, in advertising and the like.

If the covering is particularly scanty or transparent, it starts to blur the lines; nevertheless, I think it is fair to say that in 2016 it is a very different approach from 1916, when of course, unless you were covered neck to knee, it was going to cause public offence. We need to be clear that we are talking about naked, exposed breasts, displaying the nipples, etc., and that offences in this criminal sanction of the Summary Offences Act should not be attracted unless we have that category. I foreshadow that I will be moving that amendment.

The second thing that has been brought to our attention, which I think it is fair to say we had a pretty longstanding stoush with the government over in the surveillance devices legislation, is what the definition of a media organisation should be. The government has reverted to form and in this bill presented a definition which we do not consider adequate. The Attorney-General is fully aware of what we are referring to, and I foreshadow that we will propose an amendment to include a definition of 'media organisation' consistent with that which was ultimately accepted by the parliament.

It was certainly one which took the Attorney-General a little time to ultimately accept, but he did so, and that bill has now passed and I think is on its way to being proclaimed, if it has not been already. It may be that this was a matter which the Attorney thought that he could get away with by placing the other definition of 'media organisation'. It may be that the drafting of this bill had occurred at a time when we had not concluded the resolution of the definition of 'media organisation' in the other bill. I will give the Attorney the benefit of the doubt, but I will soon know if he comes back into the debate on this matter with any assertion that he objects to this amendment because it will flag to me that perhaps the former was the case.

I am ever hopeful that he has understood the importance of having media definition in a general manner which, as I say, is consistent with current commonwealth legislation and it is consistent with the Surveillance Devices Act which we have recently amended and in which a definition in exactly these terms has been approved. As I say, I will be moving that amendment as well. Otherwise, I indicate that the opposition will be supporting the bill.