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
Inquiry into the Criminal Code Amendment (Intimate Images) Bill 2017 18 (a) a person engaged in a sexual act of a kind not reasonably expected to be done in public; (b) a person in a manner or context that is sexual and of a kind not reasonably expected to be displayed in public; Distribution of Intimate Image without Consent 3.13 Proposed section 208AB(1) creates the offence of intentionally distributing an intimate image of another person without consent. As defined in section 192(1) of the Criminal Code Act (NT), consent means free and voluntary agreement'. Subsection (2)(a) (g) sets out a number of circumstances in which the offence does not apply, thereby ensuring that: the offence applies only to conduct that so far transgresses societal norms that it justifies criminalisation and that it not interfere with the performance of legitimate functions.21 3.14 Subsections (3) to (6) provide a non-exhaustive list of circumstances in which consent to the distribution of an intimate image may be vitiated. As noted in the Explanatory Statement, these factors are designed to provide guidance as to circumstances where there is no consent. Furthermore, subsection (7) clarifies that the circumstances in which consent may be vitiated are not limited by subsections (3) to (6).22 Exemptions 3.15 In support of Recommendation 4 of the NTLRC Report, Mr Michie proposed that subsection 208AB(2) be amended to include a public interest disclosure exemption to cover persons that: collect, prepare or disseminate material having the character of news, current affairs, information or a documentary or material consisting of commentary or opinion of this material.23 3.16 The Department advised that while consideration had been given to the inclusion of such an exemption, it was decided not to do so given that: The NTLRC Report gave no commentary or analysis as to why that exemption should be included. AGD considered that the exemption was potentially too broad and too vague, in particular material consisting of commentary or opinion of this material (emphasis added). Would there be any limits on how relevant such commentary or opinion had to be? Would there be any other limits? How could a court determine with any certainty what commentary or opinion means? AGD considered that the answer to each of those questions would be, We dont know. 21 Explanatory Statement, Criminal Code amendment (Intimate Images) Bill 2017 (Serial No. 38), https://parliament.nt.gov.au/committees/spsc/CCA, pp.3-4 22 Explanatory Statement, Criminal Code amendment (Intimate Images) Bill 2017 (Serial No. 38), https://parliament.nt.gov.au/committees/spsc/CCA, p.4 23 Mr Rhys L.G. Michie, Submission No. 3, p.3; Northern Territory Law Reform Committee, Report on the Non Consensual Sharing of Intimate Images, Report No. 43, November 2016, https://justice.nt.gov.au/attorneygeneral-and-justice/law/report-on-the-non-consensual-sharing-of-intimate-images, p.7 https://parliament.nt.gov.au/committees/spsc/CCA https://parliament.nt.gov.au/committees/spsc/CCA https://justice.nt.gov.au/attorney-general-and-justice/law/report-on-the-non-consensual-sharing-of-intimate-images https://justice.nt.gov.au/attorney-general-and-justice/law/report-on-the-non-consensual-sharing-of-intimate-images