Stakeholders involved in the inquiry identified several key matters in
relation to options for addressing the issue of sexting by minors. These centre
around the need for reform to the legislative framework for dealing with the
issue of sexting by minors, and effectively targeting educational initiatives
to help young people, parents and school teachers deal with this issue.
A multi-faceted approach to dealing with sexting by minors was favoured
by submitters. The Australian Federal Police (AFP) stated:
Of paramount importance is the prevention of the circulation
of explicit images of minors, and the immediate and longer term consequences of
actions associated with sexting. A multi-faceted response consisting of
education, awareness raising and the application of either Commonwealth or
State and Territory legislation are required to address the issue of sexting.
Any strategy to address this issue needs to ensure that youth
are empowered to make informed decisions about themselves, including images of
themselves, and how they want their 'brand' portrayed now and into the future.
Options for legislative reform
Submitters to the inquiry proposed several options for possible
legislative reform to help address the issue of sexting by minors in Australia.
These include introducing defences into Commonwealth child pornography offences
to cover consensual sexting between minors; introducing a new criminal offence
to cover the non‑consensual distribution of sexting images; and
introducing a new statutory tort for the invasion of privacy.
Possible changes to child
Various stakeholders expressed the view that the scope of the existing
Commonwealth child pornography offences needs to be altered in order to exclude
non-harmful sexting behaviour between minors so that young people do not
unwittingly commit a serious and punishable offence.
Problems with applying existing
Commonwealth offences to sexting cases
Several submitters argued that sexting behaviour should not be treated
in the same way as the creation or distribution of child pornography. For
example, the Australian Universities' Anti-Bullying Research Alliance noted
that minors can currently be charged under child pornography offences with
'little recognition...of the inherent differences between their image sharing,
and either those of paedophiles sharing and distributing images or adults
sharing intimate images of partners'.
Telstra commented that that young people under the age of 18 'who have consensually
produced or circulated images of themselves cannot be viewed through the same
lens as the non-consensual production or circulation of sexual imagery,
or child pornography'.
In relation to the adequacy of legislation covering these issues, the
Australian Universities' Anti-Bullying Research Alliance argued:
...the laws which we currently have are being outstripped at a
rapid rate. They have been written for a previous era, by adults who have never
experienced being adolescents surrounded by this avalanche of technology which
is changing the ways they think, operate and relate.
The Law Council of Australia (Law Council) contended:
Whilst sexting may not always be innocuous or victimless, nor
something to be encouraged or condoned...sexting by young people (that is, those
aged under 18 years) is not necessarily the type of predatory and exploitative
behaviour sought to be targeted by laws that are designed to criminalise child
The Law Council advocated for the introduction of a 'more comprehensive
and satisfactory legislative solution' to distinguish between the different
types of conduct which could currently be captured by the child pornography
provisions, such as sexting, and behaviour that could be described as 'genuine
These submitters argued that the potential penalties associated with
child pornography offences are disproportionate to the level of harm caused in
sexting cases. For example, Youth Off The Streets argued that it is 'absurd
that two consenting teens can text each other and end up on the registered sex
offenders list for the rest of their lives' as a result of conviction under
child pornography offences.
A representative from the Department of Broadband, Communications and
the Digital Economy informed the committee that the potential liability of victims
of non‑consensual sexting under child pornography offences can act as a
disincentive to reporting harmful incidents to the relevant authorities:
The research that has been done shows that people are not
really sure who to report to. But it also shows that, when a child becomes
aware that they may, by taking such an image and sending it consensually to
their boyfriend or girlfriend, have committed an offence, that acts as a
disincentive for them to report. So there is the normal embarrassment and difficulty
most children would experience when dealing with the police. On top of that, if
they know that they might actually be liable to be prosecuted themselves if
they want to take action in relation to the non-consensual on-sending of their
images, that is a disincentive.
Reliance on the discretion of law
enforcement agencies in charging minors
Submitters noted that law enforcement agencies, at both Commonwealth and
state and territory levels, can exercise discretion in deciding not to charge
minors with Commonwealth child pornography offences.
Some submitters questioned whether this represents an adequate safeguard
against disproportionate penalties being applied in sexting cases. The Law
...police appear to have used discretion in not charging any
person under 18 years of age with sexting type offences under the
[Commonwealth] Criminal Code to date. Notwithstanding this, the Law Council
remains concerned that as long as the child pornography offences remain the
only option for dealing with sexting, there is the possibility that young
people may be convicted of these serious offences in circumstances where the
behaviour may not be of an exploitative nature, which these offences are
primarily aimed at addressing.
Sexting cases do not appear to be treated uniformly by the AFP and the
other state and territory police agencies.
The AFP informed the committee that it has not charged any persons under
the age of 18 years with 'sexting' type offences under the Criminal Code, and
Current agreements within the justice system focus upon
intervention (diversion), interview and education as opposed to formal criminal
proceedings unless the behaviour is deemed as exceedingly predatory or
malicious (such as in instances of 'sextortion').
In practice, the application of criminal law to sexting type
offences is decided on a case-by-case basis and referred to State police for
Tasmania Police noted that it has adopted a policy position that
consensual activity between children generally should not be dealt with as a
criminal matter, and that it would only consider the use of child exploitation
material offences against a young person in circumstances where the conduct is
Similarly, NSW Police have indicated that they will typically not press
charges in cases of sexting between minors unless the behaviour is malicious.
In contrast to this approach, it has recently been reported that in Queensland,
240 children were charged with child pornography offences between January and
May 2013 for sexting-related behaviour.
The National Children's and Youth Law Centre (NCYLC) argued that the
different approaches taken by law enforcement agencies create uncertainty as to
the repercussions of sexting for young people.
Recommendations from a Victorian
In its Inquiry into Sexting report, the Parliament of Victorian
Law Reform Committee recommended that Victorian child pornography laws be
amended, to create a defence against prosecution to cover most forms of
consensual sexting by young people. The Victorian Parliament Report recommended
that this defence should operate where:
(a) The film or photograph depicts only the accused person; or
(b) That, at the time of making, taking or being given the film or
photograph, the accused was not more than 2 years older than the minor was or
appeared to be; and
(i) The film or photograph depicts the accused person engaged in lawful
sexual activity; or
(ii) The film or photograph depicts the accused person and another person or
persons with whom the accused could engage in lawful sexual activity; or
(iii) The film or photograph depicts a person with whom the accused could
engage in lawful sexual activity, or more than one person, all of whom the
accused could engage in lawful sexual activity with.
This proposed defence would cover instances of sexting where a minor
takes a self-portrait, or other instances where the sexual acts depicted are
lawful, or the accused could lawfully engage in sexual activity with other
persons depicted in the sexting material.
Further, the Victorian Parliament Report recommended that the Victorian
Government advocate to the Standing Council on Law and Justice that the
Commonwealth, states and territories amend their criminal legislation to
provide defences to child pornography offences, consistent with the new
Several submitters to this inquiry expressed support for the approach
recommended in the Victorian Parliament Report, and suggested that this
approach be adopted in relation to Commonwealth child pornography offences.
Possibilities for a new offence for
The Victorian Parliament Report further recommended that, in addition to
removing most sexting cases from prosecution under child pornography laws, a
new offence relating to non-consensual sexting be introduced in Victoria. The
...Victorian child pornography offences were created to apply
to people who engage in predatory and sexually exploitative conduct involving
children. It is not appropriate that a person who is not behaving in a sexually
exploitative way could face child pornography charges. Nevertheless, a person
who acts maliciously, or even carelessly, in sexting conduct, while not being
exploitative, can still cause serious harm to the victim depicted in the image
or footage. Given the harm that can result from non-consensual sexting, and
general community recognition that this is not appropriate behaviour, it is
strongly arguable that non-consensual sexting should be considered criminal
This proposed offence would cover instances where a person intentionally
distributes, or threatens to distribute, an intimate image of another person or
persons, without the subject(s) of that image consenting to the distribution.
This offence would carry less severe penalties than child pornography offences,
with penalties of up to two years imprisonment.
Some submitters expressed support for the creation of this type of
summary offence, and argued that such an offence should be introduced across
Commonwealth and state and territory jurisdictions.
The need for national consistency
Several submitters argued that the lack of consistency in relation to
the laws that could apply to sexting in different Australian jurisdictions
creates confusion and uncertainty for young people. For example, BoysTown
...the confusion created by the Australian legislative environment
regarding sexting makes the delivery of consistent, uncomplicated messages
about sexting a challenge. Definitions of child pornography in a legal context
differ between the states in Australia which leads to complications and
ambiguity. One reason for the ambiguity is that the legal definition of a
'child' varies between, and even within jurisdictions.
The NCYLC commented:
Under the current framework, a young person can be charged
both under the Commonwealth and their State's legislation. In many situations
the State's legislation differs greatly from the related Commonwealth offences,
where the relevant cut off age for child exploitation and child pornography
material is lower than it is for the Commonwealth offences.
Furthermore, the inconsistency in laws dealing with sexual
behaviour (i.e. sexting and sexually intimate behaviour) can cause
confusion among young people. This confusion further renders the child
pornography laws incapable of deterring young people from committing offences.
It also leaves victims of sexting related harm without certain options for
recourse and resolution.
A statutory tort for invasion of
Some submitters argued that the issue of non-consensual distribution of
sexting images could be dealt with through the introduction of a statutory tort
for invasion of privacy, rather than a new criminal offence relating to
The introduction of a statutory tort for invasion of privacy has variously been
recommended by the Australian Law Reform Commission, the New South Wales Law
Reform Commission and the Victorian Law Reform Commission (in their relevant
jurisdictions) over the last several years.
The Victorian Parliament Report into sexting also recommended that the
Victorian Government consider introducing a statutory tort for invasion of
privacy in that jurisdiction.
Assistant Professor Bruce Arnold and Mr Benjamin Smith argued that
a privacy tort would be preferable to criminal offences for sexting:
It is axiomatic – and should be recognised in Australian law
– that the dissemination of intimate images that have either been taken without
consent, or published to a third party without consent is a serious invasion of
Remedies under such a tort for unauthorised making and/or
dissemination of sexting images would include compensation and apology. Such an
apology would we believe be welcomed by many victims of disregard of their
privacy, people who are interested in vindication – in an acknowledgment that
they were wronged and that the offender (the person inappropriately making the
image or disseminating the image) is contrite.
We do not believe that every victim of sexting would seek to
use the tort. In practice they do not need to; it will be sufficient if a
handful of people (adults and minors) successfully take action and thereby
indicate to the community that particular behaviour is condemned by both
ordinary Australians and the law.
While noting that the first national symposium on Bullying, Young People
and the Law supported the adoption of the Victorian Parliament Report's
recommendations, including that in relation to the introduction of a privacy
tort, The Alannah and Madeline Foundation commented that young people's concept
of privacy may differ from that of other groups:
It is...debatable whether all people subscribe to fundamentally
similar notions of privacy; that is that one controls information about oneself
and shares it only to certain individuals. Young people have grown up in an
environment where sharing sometimes quite intimate thoughts – and images – are
seen as the norm. Private and public selves are entwined in ways it's difficult
for older generations to understand.
view on existing Commonwealth legal framework
The Attorney-General's Department (AGD) expressed the view that the
current Commonwealth legislative regime is adequate at the present time. AGD
noted that recent reforms introduced by the Crimes Legislation Amendment
(Sexual Offences Against Children) Act 2010 were 'designed to ensure that
child sex-related offences in areas of Commonwealth responsibility remain
comprehensive and able to deal with contemporary forms of offending'.
AGD went on to comment that the offences under the Criminal Code are
subject to a range of protections to ensure that behaviour such as sexting,
which is not exploitative of or harmful to children, is not inappropriately
captured. These protections include:
- scope for law enforcement to take the circumstances of the
particular case into account before proceeding to investigate or prosecute such
prosecution agencies are required to consider whether the
prosecution of a young person is, in all the circumstances, in the public
interest, before proceeding with the case;
under section 474.24C of the Criminal Code, the consent of the
Attorney‑General is required prior to the commencement of proceedings for
an offence against Subdivision D of Part 10.6 of the Code (which includes
Commonwealth online child pornography offences) if the person was under 18
years of age at the time he or she allegedly engaged in the conduct
constituting the offence;
under the Commonwealth Crimes Act 1914 (Crimes Act) and
the Criminal Code, a child under the age of 10 years cannot be held criminally
responsible for an offence; and
under the Commonwealth Crimes Act and the Criminal Code, there is
a presumption that a child aged between 10 and 14 years cannot be held
criminally responsible, with the prosecution bearing the onus of proving that
the child knew that their conduct was wrong.
The Commonwealth child sex-related offence regime has been
comprehensively reviewed and updated to ensure it is adapted to suit modern forms
of offending, including sexting. The Commonwealth approach upholds community
interest in preventing the circulation of sexually explicit images of minors by
young people and avoids problematic legislative distinctions between legal and
illegal forms of sexting-related behaviour.
The provisions of the Criminal Code allow the specific
circumstances of each incident to be taken into account in determining whether
to investigate or prosecute a young person for online child pornography
offences, thereby ensuring that such offences can be dealt with appropriately...the
offences strike an appropriate balance between preventing inappropriate
prosecutions for sexting and ensuring children and young people are adequately
protected from online sexual exploitation.
In relation to existing Commonwealth child pornography charges, AGD
argued that persons under 18 years of age should not automatically be excluded:
[These offences] are not designed to target young people
engaged in sexting and similar behaviours. However, persons under 18 years of
age are not excluded from the operation of the provisions...such an exclusion
would potentially reduce protections for children and young people against
online child pornography offences in circumstances where the incident involved
malicious or exploitative behaviour.
Submitters to the inquiry emphasised the importance of creating
appropriate educational strategies to help young people, parents and teachers
as being the primary driver of positive behavioural change in relation to
In the view of many stakeholders, the legal framework for dealing with sexting
should only operate as a 'last resort' where education and awareness raising
has been unsuccessful.
For example, the Australian Psychological Society stated:
...the legal implications surrounding sexting by children and
young people should not lead to a solely legal solution to the issue. Informed
parenting, school-based practices and educational approaches offer the most
productive way forward.
Successful approaches to
Submitters raised several issues in relation to the best way to
formulate and target educational and awareness raising initiatives in this
area. The Australian Communications and Media Authority (ACMA) stated that
educational programs relating to cyber safety:
- must be effectively targeted to the audience;
should use a variety of delivery mechanisms to maximise
must be evidence based, and evaluated to ensure they are driving
behavioural change; and
should incorporate a partnership approach between industry,
government and non-government stakeholders.
BoysTown noted the success of approaches which are age-appropriate and
presented in the media with which young people regularly engage. BoysTown
argued that campaigns targeting young people should include:
- user interactivity;
less formal, more conversational tone;
empowering messages; and
opportunity for peer-based learning and support.
Several submitters emphasised the importance of including parents and
carers as well as young people in targeted education strategies. Youth Off The
Streets argued that parents need to be given appropriate tools to be able to
discuss online behaviour with their children.
BoysTown agreed, advocating further support for 'adequately-funded initiatives
to increase the knowledge, understanding, skills and confidence of parents and
carers in fostering a safe digital communications culture among children and
Strategies for responding to
The NCYLC argued that there needs to be a greater focus on providing
guidance in how to respond to sexting incidents:
...there is a preponderance of cyber safety programs and
initiatives with a major focus on prevention and education but there is a
dearth of resources directed to advocating for quick and effective solutions
once an incident has occurred.
The NCYLC articulated three key principles it believed should inform
strategies to respond to sexting incidents:
- every party involved in sexting incidents (including victims,
alleged perpetrators, schools and in particular, police) must have access to
accurate legal information and advice about sexting and appropriate referral
pathways to ensure there is a holistic response;
responses to sexting should provide the young people involved
with the opportunity to participate in the resolution of the incident, which
will in turn facilitate informed decision making by all parties; and
this participation should be guided by principles of procedural
Existing educational and awareness
Several existing educational initiatives relating to cyber safety and
sexting that are currently operating in Australia were mentioned by submitters.
ACMA's Cybersmart Program
The ACMA informed the committee that it operates a suite of educational
initiatives in this area, through its Cybersmart Program. This incorporates a
number of elements, including:
- the Cybersmart Outreach program, delivering face-to-face
presentations for young people, parents and teachers alongside full day or half
day Professional Development modules for teachers, and tailored sessions for
the Cybersmart website, which offers general information, education
programs and lesson plans, as well as specific information on sexting including
content to help young people who have sent a sext and subsequently regretted
it, advising them of practical steps they can take to help remedy the
the Cybersmart Online Helpline, a free, confidential counselling
service for young people impacted by sexting and other cyber issues offered in
partnership with Kids Helpline;
- Tagged, a short film and education package for teens
dealing with the issues of cyberbullying, sexting, and digital reputation
Cybersmart's Facebook campaign for teens, 'The Cloud', which
provides engaging content in a humorous, teen-friendly format, with opportunity
for user comment and feedback.
The AMCA noted that its Cybersafety programs are evidence based and
targeted to reach not just persons directly involved in sexting, but peers,
parents and teachers.
Other government initiatives
The AFP stated that it operates several educational initiatives in
relation to online safety, including:
- cyber safety educational presentations, delivered to school aged
children on online safety risks including sexting; and
the 'ThinkUKnow' cyber safety program, delivering
awareness-raising sessions to parents, carers and teachers on issues including
cyber bullying, sexting and online grooming.
The Department of Broadband, Communications and the Digital Economy
noted that it runs a Budd:e program to teach school aged children about the
risks of providing personal information and images to others.
Non-government sector programs
Several industry and non-government organisations also informed the
committee about educational programs and awareness raising initiatives currently
The Alannah and Madeline Foundation runs the eSmart Schools and eSmart
Libraries programs. eSmart Schools is designed to help schools manage cyber safety
and deal with cyber bullying and bullying. It is available to all schools
across Australia with more than 1,700 schools participating. The eSmart
Libraries is a behaviour change system for libraries to improve cyber safety
and wellbeing and deal with cyber bullying. It is being piloted in 21 library
BoysTown operates Kids Helpline, a national telephone and online
information support and counselling service for young people, which includes
information and resources relating to sexting and cyber bullying.
In addition to the strong focus on the legislative and educational
framework surrounding the issue of sexting, it was also suggested in evidence
to the committee that a national digital communications tribunal be established.
A national digital communications
Further to any possible legislative changes, the Victorian Parliament
Report recommended that the Victorian Government advocate that the Standing
Council on Law and Justice consider issues surrounding the creation of a
national Digital Communications Tribunal to deal with and resolve complaints
about harmful digital communications.
Currently, the ACMA has a role in investigating complaints about
prohibited and potentially prohibited material posted online. The ACMA is only
able to request that material be removed where it is prohibited under the
Australian National Classification Scheme, and can only issue take-down notices
in relation to material that is hosted in Australia.
In certain circumstances individuals may also be able to take complaints in
relation to material posted online to the Australian Competition and Consumer
Commission or the Australian Federal Police.
In relation to material posted to online social media or other sites, most
prohibit unlawful or offensive content, with mechanisms for users to report
inappropriate content for removal by the service provider.
The evidence provided to the committee during this inquiry indicates
that sexting has become a regular activity for many minors (young people aged
under 18 years). The emergence of new technologies has facilitated the
creation and transmission of sexual content through electronic media.
Much of this activity takes place between consenting young people and is
therefore relatively benign. However, in some instances, sexting activities are
coercive, exploitative or undertaken with malicious intent. It was argued by
many submitters that the current legislative framework requires review to
ensure that consensual sexting is not captured by those laws targeting child
pornography. Evidence was also received which supported the introduction of
changes to effectively address non-consensual sexting.
The committee considers that the evidence it received demonstrated the
serious and complex nature of sexting by minors. However, given the short
timeframe in which it has had to undertake this inquiry, the committee was
unable to fully explore all the issues raised in the evidence. In particular,
the committee considers that the suggestions made in relation to changes to
Commonwealth laws including amendments to the child pornography laws and the
introduction of a new offence for non-consensual sexting require further,
In addition, some submitters called for the creation of a national
digital communications tribunal. The committee considers that further work is
necessary to determine whether such a body could effectively provide access to
remedies other than those that are already available under the current
The committee therefore considers that an inquiry into options for
addressing the issue of sexting by minors be re-referred by the Senate in the
44th Parliament in order to investigate and deliberate further on
the matters raised in evidence.
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