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 24 3.31 Noting that this subsection not only covers instances where the image does not exist, but other situations where implementing the threat is not necessarily possible, the Department also drew the Committees attention to the associated commentary in the Explanatory Statement: Section 208AC(2) provides guidance as to the ambit of the offence. A threat may be explicit, implicit, conditional or unconditional. It can be made by any conduct, not just words. As the offence is targeted at the perpetrators behaviour and state of mind, while the prosecution must prove an intention to cause the other person to fear that the threat would be carried out, it is not necessary to prove actual fear or that it was possible for the threat to be carried out. For example, a person (A) wants to leave her abusive partner (B). B threatens that he will send an intimate photograph of A to her employer unless she stays with him. As long as B intends A to fear that he will carry out the threat, it does not matter that there is no photograph. Nor does it matter that the threat does not, in fact, instil fear in A. Committees Comments 3.32 In light of the research evidence and the experience of legal practitioners, the Committee agrees with the Departments view that: The seriousness of the harm that can be caused by threatening to distribute an intimate image justifies this offence carrying the same penalty as the offence of distribution.42 3.33 Similarly, the Committee is satisfied that proposed section 208AC(2) adequately reflects the intent of principle 7 of the National Principles and acknowledges the Departments comment that the ambit of the offence is detailed in subsection (2) rather than subsection (1) is a matter of drafting style not substance.43 Criminalisation of Children 3.34 Proposed section 208AD provides that the prosecution of a child must not be commenced without the consent of the Director of Public Prosecutions. Noting that a similar provision is included in the NSW legislation, the Department advised that: the decision to prosecute a child is not one taken lightly. The NT Bill intends, by requiring the DPPs consent to commence a prosecution to emphasise the seriousness of that decision.44 3.35 While agreeing with the principle behind this section, the NT Legal Aid Commission recommended that: the Bill should also expressly provide that Part VI Division 7A offences are not serious offences for the purpose of section 39 of the Youth Justice Act. This would give effect to the view of the NTLRC that youth diversion should be offered in the first instance, and the laying of these charges against children should only be a last resort.45 42 Department of the Attorney-General and Justice, Answers to Written Questions, 13 February 2018, https://parliament.nt.gov.au/committees/spsc/CCA#TP, pp.5-6 43 Department of the Attorney-General and Justice, Answers to Written Questions, 13 February 2018, https://parliament.nt.gov.au/committees/spsc/CCA#TP, p.7 44 Department of the Attorney-General and Justice, Answers to Written Questions, 13 February 2018, https://parliament.nt.gov.au/committees/spsc/CCA#TP, p.8 45 NT Legal Aid Commission, Submission No. 1, p.3; Mr Russell Goldflam, Committee Transcript, 14 February 2018, pp. 3 & 5; see also, Northern Territory Law Reform Committee, Report on the Non-Consensual https://parliament.nt.gov.au/committees/spsc/CCA#TP https://parliament.nt.gov.au/committees/spsc/CCA#TP https://parliament.nt.gov.au/committees/spsc/CCA#TP