Bill
Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2018
passed, as at 2018-08-31. Communications and the Arts portfolio.
- Sponsor
- Not recorded
- Portfolio
- Communications and the Arts
Recorded stages
- introduced — 2017-12-06
- second reading — 2017-12-06
- second reading — 2018-02-13
- second reading — 2018-02-13
- committee — 2018-02-13
- committee — 2018-02-14
- third reading — 2018-02-14
- introduced — 2018-02-15
- second reading — 2018-08-15
- second reading — 2018-08-15
- second reading — 2018-08-16
- second reading — 2018-08-16
- committee — 2018-08-16
- third reading — 2018-08-16
- other — 2018-08-20
- other — 2018-08-23
- passed — 2018-08-23
- royal assent — 2018-08-31
Divisions
- Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill 2017 - Second Reading - Criminalise — 2018-02-13, Senate: affirmative, ayes 33, noes 27
- The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2018-02-14.5.1) introduced by Senator [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm), which means it was unsuccessful. ### Amendment text > *(1) Schedule 1, item 4, page 4 (after line 23), after the definition of on-demand program service, insert:* >> *outdoor public place means an outdoor place to which the public, or a section of the public, ordinarily has access, whether or not by payment or by invitation (including, for example, the open air areas of an outdoor concert or sportsground).* > *(2) Schedule 1, item 18, page 8 (after line 23), after subsection 9B(6), insert:* >> *(7) For the purposes of this section, an intimate image does not include a drawing, painting or sketch (whether still or moving).* >> *(8) For the purposes of subsections (3) and (4), an intimate image does not include images of a person in an outdoor public place.* ### What does the bill do? The bill [was introduced to](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/s1113): * *prohibit the posting of, or threatening to post, an intimate image without consent on a social media service, relevant electronic service or a designated internet service;* * *establish a complaints and objections system to be administered by the eSafety Commissioner;* * *provide the commissioner with powers to issue removal notices or remedial directions;* * *establish a civil penalty regime to be administered by the commissioner; and* * *enable the commissioner to seek a civil penalty order from a relevant court, issue an infringement notice, obtain an injunction or enforce an undertaking, or issue a formal warning for contraventions of the civil penalty provisions* Note that the bill *does not* criminalise sharing intimate images without consent. The prohibition it creates is a [civil matter](https://en.wikipedia.org/wiki/Civil_law_(common_law)), — 2018-02-14, Senate: negative, ayes 5, noes 44
- The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2018-02-14.44.1) introduced by Senator [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm) (NSW), which means it was unsuccessful. The amendment concerns the onus of proof. Liberal Senator [Mitch Fifield](https://theyvoteforyou.org.au/people/senate/victoria/mitch_fifield) (Vic) [explained that](https://www.openaustralia.org.au/senate/?gid=2018-02-14.45.1): > *Under the bill, consent to share an image must be express, voluntary and informed. The evidential burden of proof that consent was given—Senator Leyonhjelm was correct—lies with the person who shared the image in any civil penalty proceedings. Again, I emphasise that this doesn't relate to the sharing of images between two people; this relates to the sharing of those with a third party.* Senator Leyonhjelm wanted the burden of proving consent - or lack of consent, as the case would be - on the person whose image has been shared rather than the person who actually did the sharing. But the majority disagreed. Senator Fifield, as [part of the explanation above](https://www.openaustralia.org.au/senate/?gid=2018-02-14.45.1), stated why the Government was voting against this amendment: > *Given the serious impact that this conduct of sharing beyond the individuals involved has on the victim, the government is of the view that it's appropriate that the alleged perpetrator prove consent to share an image.* ### Amendment text > *(5) Schedule 1, item 26, page 16 (lines 23 to 26), omit the note.* > *(6) Schedule 1, item 26, page 16 (after line 26), after subsection 44B(2), insert:* >> *(2A) Despite section 96 of the Regulatory Powers (Standard Provisions) Act 2014, in proceedings for a civil penalty order against a person for a contravention of subsection (1), the person does not bear an evidential burden in relation to the matter in subsection (2) of this section.* ### What does the bill do? The bill [w — 2018-02-14, Senate: negative, ayes 6, noes 38
- The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2018-02-14.49.1) introduced by Greens Senator [Jordon Steele-John](https://theyvoteforyou.org.au/people/senate/wa/jordon_steele-john) (WA), which means it failed. The amendment would have made sure that people under eighteen weren't covered by the bill. Liberal Senator [Mitch Fifield](https://theyvoteforyou.org.au/people/senate/victoria/mitch_fifield) (Vic) explained that: > *The government won't be supporting the amendments moved by the Australian Greens. The penalties apply to all persons to ensure that there is a strong deterrent to engaging in the sharing of intimate images without consent.* > *In practice, as Senator Steele-John alluded to, the eSafety Commissioner will take a very cautious approach in relation to any complaint made against a perpetrator under 18 years of age. * ### Motion text > *(1) Schedule 1, item 3, page 3 (line 20), omit "a person", substitute "an adult".* > *(2) Schedule 1, item 26, page 15 (line 19), omit "A person", substitute "An adult".* > *(3) Schedule 1, item 26, page 16 (line 17), after "person", insert "is an adult and".* > *(4) Schedule 1, item 26, page 21 (line 2), omit "A person", substitute "An adult".* > *(5) Schedule 1, item 26, page 21 (line 3), omit "the person", substitute "the adult".* > *(6) Schedule 1, item 26, page 21 (line 28), omit "A person", substitute "An adult".* ### What does the bill do? The bill [was introduced to](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/s1113): * *prohibit the posting of, or threatening to post, an intimate image without consent on a social media service, relevant electronic service or a designated internet service;* * *establish a complaints and objections system to be administered by the eSafety Commissioner;* * *provide the commissioner with powers to issue removal notices or remedial directions;* * *establish a civil penalty regime to be administere — 2018-02-14, Senate: negative, ayes 12, noes 28
- Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Bill 2017 - in Committee - Criminal offences — 2018-02-14, Senate: affirmative, ayes 34, noes 30
Plain-language summary
Written by a model from the explanatory memorandum; not the record, as at 2017-12-06.
This bill creates a civil penalty regime to stop the non-consensual sharing of intimate images online.
The eSafety Commissioner would handle complaints, issue removal notices, and enforce penalties including infringement notices and court orders.
The bill also introduces three new criminal offences under the Criminal Code Act 1995 for transmitting, threatening, or possessing intimate images via a carriage service.
- Prohibits posting or threatening to post an intimate image on social media, electronic services, or designated internet services without consent.
- Establishes a complaints and objections system administered by the eSafety Commissioner.
- Introduces a civil penalty regime with graduated enforcement responses.
- Creates three new criminal offences for using a carriage service to transmit, threaten, or possess intimate images.
- Requires removal of intimate images within 48 hours of a removal notice.
- Requires a review of the amendments' effectiveness within three years of commencement.
Victims of non-consensual intimate image sharing, social media services, relevant electronic services, designated internet services, and perpetrators.
Sources
em
em revised
em supp
billhome
frl act