Additional Remarks from Government Members of the Committee
1.1
Government Senators acknowledge widespread support for the introduction
of a legislative framework that incorporates law-enforcement and education to
address the harm being caused by the phenomenon colloquially referred to as
‘Revenge Porn’ ('revenge porn').
1.2
Government members of the committee broadly do not disagree with the
conclusions and recommendations of the majority report. Government Senators
note however that the inquiry process in this case has been premature. Evidence
provided to the committee clearly indicates that the relevant governments and
government departments are in the process of formulating their advice to
government on this issue. Once such advice is provided government will be able
to formulate a response which, if legislated, will come before the committee
for inquiry and report in the normal way.
1.3
The committee should note the agreement reached by COAG in December 2015
to undertake detailed assessment of appropriate responses to revenge porn.
1.4
The Government members of the committee offer the following remarks on
the recommendations of the majority committee report:
1.5
Recommendation 1 of the majority report calls for governments to
substitute the term 'revenge porn' with the term 'non-consensual sharing of
intimate images'. Government members agree that some other nomenclature may be
appropriate although noting that the brief—if inaccurate—terminology 'revenge
porn' does provide a now well-known and understood description of the recent
and increasing criminal phenomenon.
1.6
Recommendation 2 of the majority report calls on the Commonwealth to
legislate offences of knowingly or recklessly recording or sharing intimate
images without consent and/or threatening to take or share such images.
Government members of the committee agree but urge a cautious and consultative
approach to developing the elements of these offences. The advice of legal
experts will be essential in ensuring a scheme is developed that does not
criminalise innocent conduct or place unsuspecting citizens in unnecessary
legal peril.
1.7
Recommendation 3 of the majority committee report calls on the states to
enact offences similar to those mentioned in recommendation 2, and to do so taking
into account any relevant Commonwealth legislation. The Government members of
the committee have no particular objection to this however note that
formulation of offences around revenge porn is already under consideration by
the Commonwealth and various state governments.
1.8
Recommendation 4 of the majority report calls on the Commonwealth to
empower a Commonwealth agency to issue 'take down notices for non-consensually
shared intimate images'. Government members of the committee agree and note
that evidence provided to the committee indicated that the Children's eSafety
Commissioner already has that power in relation to children and it should not
be too difficult to extend those provisions (if not necessarily to this agency)
to enable this to happen.
1.9
Recommendation 5 of the majority report calls on the Commonwealth to
instigate a 'formal mechanism' for engagement between government and internet
and social media providers. Government members of the committee do not object
to this however note that in the case of the Children's eSafety Commissioner
existing mechanisms are operating satisfactorily.
1.10
Recommendation 6 of the majority report calls on the government to give
further consideration to the Australian Law Reform Commission’s 2014 proposal
for the introduction of a tort of privacy. Government members do not support
the introduction of a tort of privacy and note that tort law is ordinarily a
matter for the states and that creating a new tort of privacy could produce
unforeseen and undesirable consequences. These consequences may be precluded by
the introduction of a specific revenge porn prohibition.
1.11
Recommendation 7 of the majority report calls for the introduction of an
education and awareness campaign. Government Senators agree with this
recommendation and note that the evidence shows that the Government, and
relevant agencies, are already investigating a wide range of legal, social and
cultural responses to the emergence of revenge porn.
1.12
Recommendation 8 of the majority report calls for all Australian Police
forces to undergo training around new offences relating to revenge porn in
their jurisdictions. Government members have no objection but suggest that this
recommendation is unnecessary in that police officers would normally be trained
in any new legislative scheme that created new offences.
Senator the Hon Ian
Macdonald
Deputy Chair
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