Social Policy Scrutiny Committee Inquiry into the Criminal Code Amendment (Intimate Images) Bill 2017 March 2018
Tabled paper 650
Tabled Papers for 13th Assembly 2016 - 2020; Tabled Papers; ParliamentNT
Tabled by Ngaree Ah Kit
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Legislative Assembly of the Northern Territory
Examination of the Bill 17 3.9 Ms Brenda Monaghan (Commissioner for Information and Public Interest Disclosures) also raised concerns as to the breadth of the proposed definition of intimate image noting that: these definitions could potentially capture images that would not normally be classified as revenge porn and the like. For example, paragraph (a) of the definition could conceivably extend to two people embracing and kissing in the street. Such an image was clearly not intended to be captured by the Bill, although I concede that it would also be unlikely to be the subject of a criminal complaint. I query whether definition (a) and perhaps (b) could be more tightly drafted without risking the integrity of the Bill. A tighter definition for (a) might read an act of a sexual nature/sexual act not ordinarily done in public. Such a definition to my mind more clearly categorises the type of sexual image that the legislation is targeting.19 3.10 Noting the concerns raised regarding the breadth of the proposed definition of intimate image, the Department advised that: If the Committee proposes to make any recommendations that differ from the definition of intimate image in the NT Bill as introduced, the definition could be tightened in the manner suggested by the Commissioner for Information and Public Interest Disclosures. By providing that a sexual act should be confined to acts of a kind not ordinarily done in public, the risk for capturing behaviour that is not intended to be criminalised under the NT Bill will be better minimised.20 Committees Comments 3.11 Acknowledging the concerns of witnesses, the Committee is of the view that to minimise the inadvertent criminalisation of innocuous or everyday imagery, the proposed definition of intimate image should be tightened. Taking into account the views of the Northern Territory Law Reform Committee and the advice of the Department, the Committee considers that, for clarification, the Bill should be amended in a manner similar to that proposed by the Commissioner for Information and Public Interest Disclosures. 3.12 While the Committee considers that the amendment proposed by the Commissioner is certainly an improvement on the definition as currently drafted, it is concerned that the phrase ordinarily done in public may cause undue confusion and require more intricate explanation and interpretation by the courts. The Committee considers that a definition that incorporates application of a reasonableness test would be more appropriate and less ambiguous. Recommendation 2 The Committee recommends that paragraphs (a) and (b) of the proposed definition of intimate image in proposed section 208AA be amended to read as follows: 19 Commissioner for Information and Public Interest Disclosures, Submission No. 3, p.2 20 Department of the Attorney-General and Justice, Answers to Written Questions, 13 February 2018, https://parliament.nt.gov.au/committees/spsc/CCA#TP, pp.2-3 https://parliament.nt.gov.au/committees/spsc/CCA#TP