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 19 Given that level of uncertainty, AGD was of the view that such an exemption should not be included.24 3.17 Mr Michie also suggested inclusion of an exemption for the distribution of an intimate image taken in public where members of the public are present, similar to that provided for in s 2(5) of the Abusive Behaviour and Sexual Harm Act 2016 (Scotland).25 Noting that an equivalent of s 2(5) of the Scottish Act has not been adopted elsewhere in Australia, the Department advised that: While the Policy Memorandum to the Bill for the Scottish Act makes it clear (at paragraph 30) that the defence in section 2(5) is intended to ensure that the images of naked protestors or streakers at sporting events are not intimate images and therefore their distribution is not an offence, it would also appear to cover such situations, for example, as the distribution of an image of a pole dancer in a strip club or a person sunbathing naked at a nudist beach. It is AGDs view that the circumstances that section 2(5) of the Scottish Act intends to cover are better addressed through the requirement that the distribution is done without consent. In relation to consent, under proposed section 208AB(1)(c), the onus is on the prosecution to prove lack of consent beyond reasonable doubt. Consent may be explicit or implicit. In addition, the fault element of recklessness applies to the circumstances that the person did not consent to distribution of the image AGD is of the view that the streaker example is adequately addressed by the requirement that the prosecution prove absence of consent. AGD considers that the defence in section 2(5) of the Scottish Act is too wide. The streaker may well be impliedly consenting to distribution of their image but it cannot be said that the person sunbathing at the nudist beach is. To argue otherwise is arguably to victim blame.26 Committees Comments 3.18 The Committee is satisfied with the Departments explanation regarding the potential issues that could arise should exemptions of this nature be included in the Bill. Defence Provisions 3.19 Subsection 208AB(2)(g), provides that it is a defence to the charge of distribution of an intimate image of a child, or other person incapable of giving consent, in circumstances that a reasonable person would regard as acceptable (for example, sharing a photograph or a movie of a naked newborn relative). Mr Russell Goldflam (Barrister and Solicitor: NT Legal Aid Commission) expressed the view that this phrase is very general noting that it might be difficult for a court to decide exactly what circumstances a reasonable person would regard as acceptable.27 24 Department of the Attorney-General and Justice, Answers to Written Questions, 13 February 2018, https://parliament.nt.gov.au/committees/spsc/CCA#TP, pp.4-5 25 Mr Rhys L.G. Michie, Submission No. 5, pp. 2-3; Abusive Behaviour and Sexual Harm Act 2016 (Scotland), s2(5); see also Mr Rhys L.G. Michie, Committee Transcript, 14 February 2018, p.15 26 Department of the Attorney-General and Justice, Answers to Written Questions, 13 February 2018, https://parliament.nt.gov.au/committees/spsc/CCA#TP, pp.3-4; see also Ms Fiona Hardy, Committee Transcript, pp.19-20 27 Mr Russell Goldflam, Committee Transcript, 14 February 2018, p.3; NT Legal Aid Commission, Submission No. 1, p.3 https://parliament.nt.gov.au/committees/spsc/CCA#TP https://parliament.nt.gov.au/committees/spsc/CCA#TP
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