Page 2315 - Week 07 - Wednesday, 2 August 2017
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video
Despite the majority of submissions supporting this approach, we heeded the advice of the Human Rights Commission and removed this section from the bill. They noted that our construction could have posed an unjustifiable limitation on the right to freedom of expression. We will continue to look at this. We will investigate whether improvements to privacy legislation through our territory’s civil penalties regime, a statutory tort for serious invasions of privacy or a general criminal offence for reckless or malicious invasions of privacy are possible ways forward.
We will continue to consult with culturally diverse and marginalised communities, especially the Muslim and LGBTIQ communities, to ensure that the legal system provides appropriate protections for them and their families into the future. Meanwhile, we have been assured that, on the balance of probabilities, the commonwealth civil penalties regime for non-consensual sharing of intimate images will take into account this broader, culturally contextual definition.
The issue of consent has been considered by almost all submissions. Overwhelmingly, these submissions supported a stronger, clearer, more positive definition of “consent”. Most of these submissions supported our inclusion of a positive action element, which is an innovation in Australia but is something for which the community has been calling for years. When looking at the legislation the obvious question is why, when we are talking about non-consensual sharing of intimate images, did we feel that it was necessary or appropriate to talk about wider sexual violence reforms? And why does it cover considerable changes to child sex offences and to the law of consent here in the ACT?
Firstly, as a basic rule of logic, if we are talking about any sort of non-consent, it is important to understand what consent is. In the ACT there is not a definition of “consent”, except by what it is not. This is unlike every other state and territory in Australia. The community sector around Australia is calling for changing the law to make consent something positive, something that has to be communicated from one person to another. We did not want to have two separate definitions of consent in the Crimes Act, so we have changed to the general definition rather than have a specific definition only for non-consensual sharing of intimate images.
Once we started looking at consent, we also realised how many problems our criminal law has with how young people, consent and sex and pornography offences all intersect. To quote the submission from the Human Rights Commission, the commission has “longstanding concerns that young people who engage in consensual and non-predatory and non-exploitative behaviour such as sexting have been at risk of inappropriate criminalisation by current child pornography laws in the ACT”, and they “welcome” these specific changes. This sentiment has since been echoed by the National Foundation for Australian Women, the Women’s Services Network, the YWCA and by Doctors Flynn, Henry and Powell, who penned the major report into non-consensual sharing in the first place.
We recognise that, in operation, our original definition of “consent” in the exposure draft could potentially have had some issues, as there was some possibility for the
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video