Civil penalties for non-consensual sharing of intimate images -“revenge porn”
In a recent submission to the Department of Communication & the Arts, NSWCCL made specific recommendations to a proposed Commonwealth government prohibition on non-consensual sharing of intimate images, colloquially referred to as “revenge porn”. We also addressed the question of appropriate civil penalties to deter, prevent and mitigate harm to victims, by individuals and content hosts, who breach the prohibition.
NSWCCL considers the non-consensual sharing of intimate images to be a privacy issue. It occurs when experiences, deemed private, are distributed without consent to the public, the victim’s family, work mates, employer or friends. Nonetheless, privacy requires a balance of interests, therefore defences of public interest and consent should be available to the perpetrator.
The prohibition proposed by the government would be modelled on the Enhancing Online Safety for Children Act 2015 (Cth) (EOSC Act). NSWCCL agrees that many of the provisions in the EOSC Act are suitable to deal with the non-consensual sharing of intimate images. The EOSC Act establishes the role for a Commissioner to oversee a cooperative social media service scheme. The Commissioner is also authorised to approach the Federal Court for civil penalties, enforceable undertakings and injunctions. A great benefit to complainants is that once a complaint proceeds, the Commissioner’s office takes over the process for removal of the material. NSWCCL agrees that the Commissioner should have a similar role to deal with non-consensually shared intimate images.Read more
CCL supports a statutory prohibition at Commonwealth level of the non-consensual sharing of intimate images. Harm, humiliation and harassment of victims, through the actual or threat of non-consensual sharing of such images, has led to suicide in some cases.
Submission to The Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2017 - June 2017
a consequence of the proposed legislation is that Aboriginal people will forego access to legal advice and/or a prisoner’s friend in custody. Access to fair trial rights such as the right to silence and the privilege against self-incrimination will be severely restricted, with the effect of unfairly incriminating Aboriginal people. Such a law will almost certainly increase the over-representation of Aboriginal people in prison.
NSWCCL has formally argued its strong support for a national anti-corruption agency in Australia.
We put our views in a submission to the current Senate Select Committee Inquiry on a National Integrity Commission (NIC) which continues the work of the 2016 Inquiry on the same topic: i.e. should Australia have a national anti-corruption body like the NSW ICAC and similar bodies in other states?
As a civil liberties organisation NSWCCL has previously opposed anti-corruption agencies sitting outside the established justice system and wielding extraordinary coercive and covert powers. We have cautiously shifted our position in response to the growing threat that increasingly complex forms of corruption pose to the public good in Australia: undermining the integrity of our political system, distorting the policy making process, diverting resources from public good objectives and generally undermining public trust in our political class, governing institutions and public administration.
If not more effectively checked, corruption poses a threat to democratic values and processes–including individual rights and liberties. From a civil liberties perspective, the balance between greater public good and greater public harm has shifted. In our view the Government's claim that its current 'multi-agency' approach is effective is demonstrably wrong.
If the public interest is to be protected against the corrosive effects of serious and systemic corruption, NSWCCL acknowledges that the establishment of anti-corruption agencies equipped with extraordinary investigative powers- albeit with proper constraints and safeguards- is necessary and proportionate.
NSWCCL's support is absolutely dependent on strong constraints and safeguards that establish the optimal balance between individual rights and the effectiveness of the NIC in exposing corruption for the public good. Getting this balance right has been well traversed in NSW since ICAC's establishment in 1988 and subsequently in other states as the operation of the state anti-corruption bodies has come under much scrutiny and review. The Select Committee has a wealth of state level experience on which to develop its recommendations.
Transparency and public hearings
Central to our support for a NIC was that it have the power to hold public hearings of its investigations. This will be one of the most controversial issues to be determined- if the Committee recommends the establishment of a NIC.
There is a good reason for this level of controversy. There is a serious tension between the potential for unfair reputational damage for individuals being publicly investigated without the protection of a fair trial before a court - versus the undoubted public good that flows in many ways from open investigation and exposure of corruption in these hearings.
NSWCCL considers that ICAC's use of public hearings has overwhelmingly benefited the public good. It has also provided proper transparency to ICAC's investigations which, by allowing public scrutiny of part of ICAC’s operations, provides an important dimension of oversight of the agency. It has also been hugely important in exposing the level and nature of corruption in NSW which is a positive in itself- but also generates much needed pressure on Governments to take appropriate anti-corruption action.
The public hearings, in so far as they have built considerable community support for ICAC, also provide some level of protection from inappropriately motivated Government interventions around ICAC’s powers.
The push for abortion law reform in NSW takes another step tomorrow (Thursday 11/05/17). The Legislative Council will debate and vote on the Abortion Law Reform Bill introduced by Greens MLC Mehreen Faruqi. ALP members will have a conscience vote- and there is just a chance that it might get passed in the Council.
This would be a significant step in NSW –even though it is unlikely that it will get majority support in the current lower house.
NSWCCL has publicly supported the Bill. Yesterday we wrote to all members of the NSW Parliament urging them to give this Bill proper and positive consideration and to support its passage through Parliament so that matters relating to abortion in NSW are treated primarily as a health rather than a criminal matter.
If that should fail, we have urged progressive members of Parliament to come together in a cross-party alliance and build the necessary support for decriminalisation of abortion asap.
As an interim fall-back action, we urge MPs to immediately pass the Safe Access to Reproductive Health Clinics Bill introduced by the ALP MLC Penny Sharpe.
Demonstration in support
GetUp is holding a public demonstration outside Parliament tomorrow morning. NSWCCL members will join that demonstration. Supporters of abortion reform are invited to join us. Macquarie Street - outside Parliament House - 9am Thursday 11th May.
Also: text, email or ring your local member and members of the Legislative Council. Sign the GetUp petition.
It is from a public good perspective that NSWCCL supports the establishment of a broad based National Integrity Commission (NIC) as necessary for stronger and more effective anti-corruption action at the national level.
On Wednesday last week (22/3/170) the AG George Brandis introduced the Human Rights Legislation Amendment Bill 2017 into the Senate with the intention of its being considered very quickly. It immediately generated a wave of community opposition – especially from ethnic/multicultural community groups.
On Thursday, the Bill was referred to the Legislative and Constitutional Affairs Committee for a ridiculously rushed ‘review’ with the Committee having to report by the following Tuesday (28/3/17).
This was a provocative time frame, effectively barring the community from any meaningful input into assessing the implications of the proposed changes on the ambit and operation of the Act.
NSWCCL strongly opposes the proposed amendments in this Bill which will seriously and unnecessarily weaken protections against race hate speech currently provided by s18(C ) of the Act.
Weakening s18(C )
While the Bill does not accede to the demands of the extreme opponents of the Act to repeal s18(C ), it does include amendments that will significantly reduce the protections provided by the section:
- the removal of the words ‘offend, insult and humiliate’ and their replacement with ‘harass and
- the replacement of the current objective test of the effects of alleged race hate speech (the standards of a ‘reasonable member of the relevant group’) with the standards of a ‘member of the Australian community’.
The PM and the AG assert these amendments ‘strengthen’ the Act. This is an ambiguous description. They certainly do not strengthen the protection against race hate speech currently provided by the Act. They will narrow and weaken these protections and create uncertainty as to what speech will be now be unlawful or permitted. There will be a lengthy period before a clear and settled judicial interpretation is established.
The existing standard of a ‘reasonable member of the relevant group’ as the basis for the objective test of the alleged offence is an appropriate standard for an offence that is experienced by particular groups and is particularly important in avoiding bias when the complainant is from a particularly disadvantaged or unpopular group. NSWCCL opposes the amendment to broaden this to a member of 'the Australian community'.
In the current highly charged political context relating to asylum seekers, refugees, and multiculturalism and race relations these are dangerous amendments.
The free speech justification
The Government says it wants to protect free speech – but has not been able to provide an example of the kind of ‘free speech’ that will be protected by these changes that is not already protected either by the exceptions specified in s18(D ) or by the well-established case law interpretation of s18(C ) requiring the alleged act to have ‘profound and serious effects not to be likened to mere slights’.
The most depressing aspect of the torrid campaign against s18(C ) and the AHRC (and its President) by a small section of the community and the media has been the way in which the facts of these cases – and the earlier Bolt case – have been seriously distorted to create the false impression that s18(C ) and the AHRC together impose a draconian prohibition on free speech.
Notwithstanding all the outrage surrounding them, the QUT case was dismissed and the Bill Leak cartoon – if the complaint had not been withdrawn- was almost certainly unlikely to be upheld as unlawful under the current Act.
NSWCCL agrees with those who warn that the removal of these offences from s18(C) at this point in time will send a clear message that it is now acceptable ‘to offend, insult and humiliate’ people on the grounds of their race, colour, nationality or ethnicity. Such an outcome will generate much hurt and tension amongst persons subject to this kind of speech and may well provide unintended impetus for the growth of racism and prejudice in Australia - especially against our Muslim community.
NSW CCL position
In our submission to the Joint Parliamentary HR Committee we recommended removing ‘offend and insult’ and replacing it with ‘vilify’- not because the current words inappropriately restricted free speech in the operation of the Act, but because it is generally preferable that the Act clearly communicate the judicial interpretation of the offence.
‘Vilification’ includes offending and insulting, but suggests they need to be of a high level and serious, and not trivial, nature – and would thus bring the language of the Act into line with the operational judicial interpretation. It would not weaken the Act’s protection against racist speech but would help clarify current confusion as to what is, and isn’t, unlawful.
We were cautious in so recommending because of the possible unintended consequences of repealing long-standing categories of race hate speech in a politically toxic environment – and had previously argued that S18(C ) should be left unchanged.
The HR Committee could not make a specific recommendation on s18(C). This should have signalled to the Government that the wisest course would be to leave it alone. However by proposing to remove ‘offend, insult and humiliate’ and replace them with ‘harrass’ the Government has chosen a more provocative, unacceptable path.
Given this and the ongoing toxicity and misinformation of the public debate NSWCCL reaffirms its earlier position- leave s18(C ) alone.
The Bill also proposes numbers of amendments to the Australian Human Rights Commission Act 1986 dealing with the Commission’s procedures, its oversight and the role of the President.
NSWCCL considers the broad processes of the AHRC to have been, for over 20 years, highly effective in providing low cost access to a complaints conciliation process which has successfully resolved the large majority of valid complaints relating to race discrimination.
Nonetheless many of these amendments appear to be a sensible tightening up of procedures and have broad support- including from the AHRC.
NSWCCL has not had time to carefully consider the implications of all these procedural amendments, but we do reiterate our general concern that some of them may undermine the current accessibility of the AHRC to complainants with limited resources if the cost of lodging a complaint or of failure to have a complaint upheld – become a barrier.
It is clearly important that any reforms to improve the Commission’s effectiveness do not undermine its powers or independence and its current accessibility to persons wanting to make a complaint.
The President of the AHRC has expressed particular concern in relation to a number of the amendments and understands the Government may address some of her concerns in the final version of the Bill. When giving evidence on the Bill on Friday the President expressed ongoing concern about numbers of procedural amendments that the Government did not appear willing to change. As it is possible the procedural amendments may proceed even if the amendments to s18(C ) are rejected by the Senate – it is to be hoped the Government can be persuaded to address the AHRC’s advice on the likely consequences of these amendments.
The Senates role
The Bill is scheduled to return to the Senate today. A wise Government would be withdrawing the s18 (C ) amendments. If not NSWCCL is hopeful that the Senate fulfils its legislative review functions and rejects these amendments in toto.
Dr Lesley Lynch
The right to protection against race hate speech
The Freedom of Speech in Australia Report (28th January 2017) will bring no joy to those urging wholesale repeal or major weakening of Part IIA of the Racial Discrimination Act which prohibits racially motivated hate speech.
At the end of another (unnecessary and rushed) review process, which attracted 11460 responses, the Parliamentary Human Rights Committee was unable to make a recommendation to the Government on this core provision. Instead it restricted itself to listing 6 options that had the support of at least one Committee member. (R3). Neither abolition nor major weakening of the provision appears in this list of options. Not one Committee member supported an extreme option.
The Report focusses on positive options that do not have as their intent the weakening of the provision’s vitally important protection against race hate speech: whether or not it is best to leave the provision as it is on the grounds that case law interpretation of what it means is well established and the legislation is working well – or to tweak the provision by various proposed amendments to make explicit in the legislation these judicial interpretations on the basis that it is a good principle that the meaning of laws be clear and accessible.
Nothing new here – these issues have been canvassed many times including in the last review in 2014.
But it is a great relief that the extreme views of those who demand repeal or major watering down of the provision have not been given any support in the Committee’s recommendations.
NSWCCL also welcomes the separate strong statements in the Report from the ALP and the Greens members opposing any change to this core provision.
The AHRC administrative processes
In response to the controversy generated by three recent cases and repeated attacks by the Government and others on the AHRC and its President, the Committee was also tasked with the review of the Commission’s handling of complaints and its general procedures - with particular reference to the alleged soliciting of complaints. Most of the Committee's recommendations (19 out of 22) relate to this broad area.
Given the ferocity and persistence of attacks by senior Government members and some sections of the media on the AHRC and its President, NSWCCL was concerned that the review could be used to seriously undermine the President and the organisation. This has not been the outcome .
The evidence from many respected and qualified sources discussed in the Report essentially disposes of the public allegations of gross incompetence, unfairness, soliciting etc by the Commission and establishes that much of the commentary on the three recent cases was seriously ill-informed.
Nonetheless, the Committee has made numbers of recommendations relating to the AHRC procedures, its oversight and the role of the President. Many of these are a sensible tightening up of procedures and are either supported by the AHRC or not likely to be opposed by it. (For example the President has previously requested an amendment that will allow the Commission to terminate complaints not likely to succeed quickly. R 12).
Some recommendations seem redundant and some unnecessary but are not likely to be harmful- beyond the fact that they will consume resources. It may be that the Committee is proposing these additional checks and safeguards to provide public confidence that the Commission will be operating fairly and effectively.
If they protect the AHRC and its President from the kinds of unwarranted political attacks we have seen over the last two years - they will have served a good purpose.
NSWCCL is however concerned about some of the recommendations because of their potential to undermine the current accessibility of the ALHRC to complainants with limited resources if the cost of lodging a complaint or of failure to have a complaint upheld, become too big a barrier.
It is important that any reforms to improve the Commission’s effectiveness do not undermine its powers or independence and its current accessibility to persons wanting to make a complaint.
A detailed analysis of the 22 recommendations will be posted shortly.
Dr Lesley Lynch
NSWCCL recently lodged a submission with the Attorney General’s Department and the Department of Communications and Arts in January 2017. We reiterated our view that the current metadata scheme is an affront to civil liberties and oppose its extension into civil proceedings. Extension of the uses to which metadata may be put is one of the reasons that we opposed the introduction of laws requiring collection and retention of metadata in the first place.
In our submission we noted the international experience, which suggests that metadata rarely makes a difference in criminal investigations.
A commonly cited justification for allowing access to metadata is in family violence or international child abduction cases. However, experts in the field are not convinced this justification is warranted, bearing in mind that perpetrators of domestic violence can also use retained metadata to track their victims.
It is necessary to balance against this issue the fact that allowing access to metadata in civil proceedings can jeopardise the safety of whistleblowers and open the floodgates to fishing expeditions during litigation. Allowing access to metadata in these circumstances is a clear example of mission creep.
For the retention and use of metadata to be justified, it must be beneficial and proportionate to the benefit. In our view, it is not necessary for the reduction of terrorism and other serious crimes, let alone the far less serious issue of civil litigation. Extension of the uses to which metadata may be put is one of the reasons that we opposed the introduction of laws requiring collection and retention of metadata in the first place.
In noting this, NSWCCL recommended that:
- The existing legislation should be repealed and a targeted data surveillance scheme instituted instead.
- The period for which information is stored should be reduced from 2 years to 6 months
- Civil proceedings should continue to be excluded.
A new body of vital importance to the NSW justice sector -the Law Enforcement Conduct Commission (LECC) – was set up in January following the passage of The Law Enforcement Conduct Commission Act last year. It brings together the oversight and investigative roles of the Police Integrity Commission, the Police Division of the Office of the Ombudsman and the Inspector of the Crime Commission into a single civilian body to oversight police operations. It has royal commission type powers in some contexts. Its oversight powers relate to the NSW Police Force and the NSW Crimes Commission.
It is the latest outcome from the long (and unfinished) campaign to achieve effective independent oversight of NSW Police operations and was largely shaped by the recommendations of the 2015 Tink Report. There are grounds to expect this body will significantly improve some aspects of police oversight and accountability but there are gaps and weaknesses in its structure which do not augur well for the much needed reform of police culture in critical areas and may undermine its overall effectiveness.