Page 1941 - Week 06 - Wednesday, 7 June 2017
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This bill specifically gives the court the power to order a person to take all reasonable steps to remove, retract, recover, delete or destroy an image related to the offence within a specified time limit. This is the most direct solution we can offer to actually help the victim. But it is not sufficient to create an order that can be defied, so there is a penalty. If a person does not comply, they face two years jail. It is just for the victim, and will ensure that a person does all they can to get rid of the harm that they have done.
Moving on to the broader debate that we have had within the Assembly, I note that the Greens will be shortly providing an exposure draft. They have provided us with a copy of that bill, and I thank them for it. I think there is a tripartisan view about the way forward here, and that we want to get this done. I hope that it can be done in a collegiate manner. I am sure that the community does not want us to be bickering over point scoring. This is about actually getting the result.
I thank them for providing that bill. It is clear that the Greens have been talking to many of the people that we have been talking to, in forming this legislation. I note that their bill goes further than ours, in that it goes beyond the intimate image sharing and has a couple of other issues. That includes provisions against “stealthing”. Equally, the opposition and I share concerns about stealthing. However, I think that the approach that has been taken by the Greens in this bill goes too far. It does not actually mention stealthing as a specific issue, but says that it becomes a crime when a person makes “a fraudulent misrepresentation of any fact”. I think that is too broad in its nature. This would mean the person misrepresenting any fact is not just guilty of lying but potentially guilty of a sexual offence that carries a penalty of up to 12 years in prison.
I am keen to see that we address stealthing. I think that it is best done by way of a separate piece of legislation, whoever brings that forward: the government, the Greens or the Liberal Party. We look forward to working with the other parties on that. But it does require, as does the bill that is being tabled today, very careful drafting to make sure that there are not unintended consequences and that we do not go too far in trying to deal with what is quite a specific crime.
The other issue that I note in the exposure draft from the Greens is that of consent. We actually changed this after releasing our exposure draft, based on consultation and on the New South Wales model. From a legal point of view, it places on the defendant a burden of proof that they may never be able to reach. The Human Rights Commissioner and the Law Society both indicated in written submissions that a structure that puts the burden on the defence for a provision with a jail term attached is unlikely to pass the human rights test. So we have changed the approach to that of the onus of proof based on that advice that we received. I note that that is now different from the exposure draft.
Another issue is that of strict liability. I do have concerns about these being strict liability offences, particularly where imprisonment is a penalty. Having these as strict liability offences is a concern. They are issues that we have noted. I do not think that
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