2017
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)
(Jeremy Hanson)
Crimes (Intimate Image Abuse) Amendment Bill 2017

Contents
	Page
	1	Name of Act	2
	2	Commencement	2
	3	Legislation amended	2
	4	Offences against Act—application of Criminal Code etc
Section 7A, note 1	2
	5	New part 3A	2
	6	Dictionary, new definitions	9

2017
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)
(Jeremy Hanson)
Crimes (Intimate Image Abuse) Amendment Bill 2017

A Bill for
An Act to amend the Crimes Act 1900

    

The Legislative Assembly for the Australian Capital Territory enacts as follows:

1	Name of Act
This Act is the Crimes (Intimate Image Abuse) Amendment Act 2017.
2	Commencement
This Act commences on the day after its notification day.
Note	The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).
3	Legislation amended
This Act amends the Crimes Act 1900.
4	Offences against Act—application of Criminal Code etc
Section 7A, note 1
insert
·	s 72D (Non-consensual distribution of intimate images)
·	s 72E (Threaten to capture or distribute intimate images)
5	New part 3A
insert
Part 3A	Intimate image abuse
72A	Definitions—pt 3A
In this part:
capture visual data—a person captures visual data of another person if the person captures an image of the other person by a camera or any other means in such a way that—
	(a)	a recording is made of the images; or 
	(b)	the images are capable of being transmitted in real time with or without retention or storage in a physical or electronic form; or
	(c)	the images are otherwise capable of being distributed.
engaged in a private act means—
	(a)	in a state of undress; or 
	(b)	using the toilet, showering or bathing; or
	(c)	engaged in sexual activity of a kind not ordinarily done in public; or
	(d)	engaged in any other like activity.
image means a still or moving image, whether or not altered.
intimate image means—
	(a)	an image of a person’s private parts, or of a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect the person to be given privacy; or
	(b)	an image that has been altered to appear to show a person’s private parts, or a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect the person to be given privacy.
private parts, of a person, means—
	(a)	a person’s genital or anal area, whether covered by underwear or bare; or
	(b)	for a female or a transgender or intersex person who identifies as a female—the person’s breasts whether covered by underwear or bare.
72B	Meaning of distribute—pt 3A
	(1)	In this part:
distribute—
	(a)	includes any of the following conduct, whether done in person, electronically, digitally or in any other way:
	(i)	send, supply, exhibit, transmit or communicate to another person; 
	(ii)	make available for viewing or access by another person, whether in person or by electronic, digital or any other means; but
	(b)	does not include conduct mentioned in paragraph (a) done by a person solely in the person’s capacity as an internet service provider, internet content host or a carriage service provider.
	(2)	A person is taken to have distributed an image to another person whether or not the other person views or accesses the image.
72C	Meaning of consent—pt 3A
	(1)	In this part, consent, of a person, for distribution of an intimate image of the person by another person, means free and voluntary agreement to the distribution of the image expressed or communicated by the person to the other person.
	(2)	However—
	(a)	a person who consents to the distribution of an image on a particular occasion must not, by reason only of that consent, be taken to have consented to the distribution of the image or any other image on another occasion; and
	(b)	a person who consents to the distribution of an image to a particular person or in a particular way must not, by reason only of that consent, be taken to have consented to the distribution of the image or any other image to another person or in another way; and
	(c)	a person who distributes an image of themself is not, by reason only of the distribution, to be regarded as having consented to any other distribution of the image.
	(3)	Without limiting the grounds on which it may be established that the consent of a person to the distribution of an intimate image is negated, the consent is negated if any of the following apply:
	(a)	the person is under 16 years old;
	(b)	the person does not have the capacity to consent, whether as a result of cognitive incapacity or otherwise;
	(c)	the person does not have an opportunity to consent because the person is unconscious, asleep, or otherwise physically helpless;
	(d)	the person consents because of actual or threatened violence, force or terror directed at the person or someone else;
	(e)	the person consents because the person is unlawfully detained.
72D	Non-consensual distribution of intimate images
A person (the offender) commits an offence if—
	(a)	the offender distributes an intimate image of another person (the affected person); and
	(b)	the offender—
	(i)	knows the other person does not consent to the distribution; or 
	(ii)	is reckless as to whether the other person consents to the distribution.
Maximum penalty:  300 penalty units, imprisonment for 3 years or both.
72E	Threaten to capture or distribute intimate images
	(1)	A person (the offender) commits an offence if—
	(a)	the offender threatens to capture visual data of a person (the threatened person); and
	(b)	the visual data involves an intimate image of the threatened person; and
	(c)	the offender intends the threatened person to fear that the threat would be carried out.
Maximum penalty:  300 penalty units, imprisonment for 3 years or both.
	(2)	A person (the offender) commits an offence if—
	(a)	the offender threatens to distribute visual data of a person (the threatened person); and
	(b)	the visual data involves an intimate image of the threatened person; and
	(c)	the offender intends the threatened person to fear that the threat would be carried out.
Maximum penalty:  300 penalty units, imprisonment for 3 years or both.
	(3)	In a prosecution—
	(a)	for an offence against this section generally—
	(i)	a threat may be made by any conduct whether explicit, implicit, conditional, or unconditional; and
	(ii)	it is not necessary to prove that the threatened person actually feared that the threat would be carried out; and
	(b)	for an offence against subsection (2)—it does not matter whether the visual data that forms part of a threat to distribute the data existed when the threat was made.
72F	Exception to s 72D for consenting young people
An offence against section 72D does not apply to a person (the defendant) if—
	(a)	the defendant is younger than 18 years old when the offence is alleged to have been committed; and
	(b)	the person on whom the offence is alleged to have been committed (the complainant) was at the time of the offence—
	(i)	at least 14 years old; and
	(ii)	not more than 2 years younger than the defendant; and
	(c)	the complainant consented to the conduct required for the offence.
Note	The defendant has an evidential burden in relation to the matters mentioned in this section (see Criminal Code, s 58).
72G	Exceptions for reasonable distribution
	(1)	An offence against section 72D or section 72E does not apply to the distribution of an intimate image—
	(a)	by a law enforcement officer acting reasonably in the performance of the officer’s duty; or
	(b)	for a lawful and common practice of law enforcement, criminal reporting or a legal proceeding; or
	(c)	for the purpose of reporting unlawful conduct to a law enforcement officer; or
	(d)	for a scientific, medical or educational purpose; or
Example
a patient consents to her a doctor providing an image of a mole on her breast to another doctor for a second opinion about the mole
Note	An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
	(e)	in circumstances in which a reasonable person would consider the conduct of the defendant acceptable taking into account any of the following:
	(i)	the nature and content of the image;
	(ii)	the circumstances in which the image was distributed;
	(iii)	the age, cognitive capacity, vulnerability or other relevant circumstances of the person shown in the image;
	(iv)	the extent to which the defendant’s actions affect the privacy of the person depicted in the image; 
	(v)	the relationship between the defendant and the person shown in the image; or
	(f)	in circumstances or for a purpose prescribed by regulation.
	(2)	Nothing in this section prevents a person being found guilty of an offence under or because of the Criminal Code, part 2.4 (Extensions of criminal responsibility).
	(3)	In this section:
law enforcement officer means—
	(a)	a police officer; or
	(b)	a member of the staff of the Australian Crime Commission established by the Australian Crime Commission Act 2002 (Cwlth).
licensed security provider means a person who holds a licence under the Security Industry Act 2003.
security activity—see the Security Industry Act 2003, section 7.
72H	Court may order rectification
	(1)	This section applies if a person is found guilty of an offence against section 72D (Non-consensual distribution of intimate images).
	(2)	The court may order the person to take reasonable action to remove, retract, recover, delete or destroy an intimate image involved in the offence within a stated period.
	(3)	The person commits an offence if the person fails to comply with the order.
Maximum penalty:  200 penalty units, imprisonment for 2 years or both.
72I	DPP consent for prosecution of children
A proceeding for an offence against this part must not be commenced without the consent of the director of public prosecutions if the person charged with the offence was under the age of 16 years at the time the offence is alleged to have been committed.
6	Dictionary, new definitions
insert
capture visual data, for part 3A (Intimate image abuse)—see section 72A.
consent, of a person, for part 3A (Intimate image abuse)—see section 72C.
distribute, for part 3A (Intimate image abuse)—see section 72B.
engaged in a private act, for part 3A (Intimate image abuse)—see section 72A.
image, for part 3A (Intimate image abuse)—see section 72A.
intimate image, for part 3A (Intimate image abuse)—see section 72A.
private parts, of a person, for part 3A (Intimate image abuse)—see section 72A.

Endnotes
1	Presentation speech
	Presentation speech made in the Legislative Assembly on 7 June 2017.
2	Notification
	Notified under the Legislation Act on	2017.
3	Republications of amended laws
	For the latest republication of amended laws, see www.legislation.act.gov.au.

© Australian Capital Territory 2017