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 20 3.20 While noting that section 91(T)(d) of the NSW legislation establishes a similar defence, the NT Legal Aid Commission submitted that: the NSW Act is easier for tribunals of fact to apply because it sets out the matters that must be considered in determining whether the impugned conduct was acceptable as follows: a reasonable person would consider the conduct of the accused person acceptable, having regard to each of the following (to the extent relevant): (i) the nature and content of the image, (ii) the circumstances in which the image was recorded or distributed, (iii) the age, intellectual capacity, vulnerability or other relevant circumstances of the person depicted in the image, (iv) the degree to which the accused persons actions affect the privacy of the person depicted in the image, (v) the relationship between the accused person and the person depicted in the image.28 3.21 In recommending that the Bill be amended to incorporate these circumstances, Mr Goldflam further submitted that, as is the case in NSW, this defence should be generally applicable. That is, the defence should be available to any charge of distribution of an intimate image without consent: if the conduct is conduct the reasonable press would regard as acceptable, whether or not it is an image of a child or an adult, it should not be criminal and there should be a defence that can be raised when a person is charged with distributing that image.29 3.22 The Department advised that consideration was given to the inclusion of such a defence noting that: A similar provision was included in the Crimes (Intimate Image Abuse) Bill 2017, the private members bill introduced in the ACT Parliament. One of the amendments proposed by the ACT Government was to omit that exception on the grounds that it was too broad and unnecessarily complicated, and that the issues the exception sought to address were appropriately addressed through the definition of intimate image and the requirement that distribution is done without consent. The Bill was passed with the omission of the exception. AGD found these arguments convincing and instructed OPC not to include an exception modelled on section 91(T)(d) of the Crimes Act 1900 (NSW) AGD is of the view that, rather than a proliferation of exceptions, most circumstances where the offence in proposed section 208AB(1) would not apply are better addressed through the requirement of lack of consent.30 3.23 Mr Michie also proposed that consideration be given to the inclusion of a defence similar to that provided for under section 33(5) of the Criminal Justice and Courts Act 2015 (UK) whereby it is a defence for a person charged with the offence of disclosing private sexual photographs and films with intent to cause distress where it is reasonably believed that the image has previously been disclosed for reward.31 28 NT Legal Aid Commission, Submission No. 1, p.3 29 Mr Russell Goldflam, Committee Transcript, 14 February 2018, p.3 30 Department of the Attorney-General and Justice, Drafting Clarifications Criminal Code Amendment (Intimate Images) Bill 2017, (unpublished), 22 February 2018, p.3 31 Mr Rhys L.G. Michie, Submission No. 5, p.2