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This is a Bill, not an Act. For current law, see the Acts databases.


CRIMINAL LAW AMENDMENT (INTIMATE IMAGES) BILL 2018

                    Western Australia


Criminal Law Amendment (Intimate Images)
               Bill 2018

                       Contents

       Part 1 -- Preliminary matters
 1.    Short title                                         2
 2.    Commencement                                        2
       Part 2 -- The Criminal Code
            amended
 3.    Act amended                                         3
 4.    Chapter XXVA inserted                               3
       Chapter XXVA -- Intimate images
       221BA. Terms used                              3
       221BB. Term used: consent                      4
       221BC. Term used: distributes                  5
       221BD. Distribution of intimate image          5
       221BE. Court may order rectification           7
       221BF. Review of amendments made by Criminal
                Law Amendment (Intimate Images) Act
                2018                                  9
 5.    Section 338 amended                                 9
 6.    Section 338B amended                               10
 7.    Section 338C amended                               10
       Part 3 -- Restraining Orders Act 1997
            amended
 8.    Act amended                                        11
 9.    Section 3 amended                                  11
 10.   Section 5A amended                                 11
 11.   Section 10G amended                                11
 12.   Section 30A amended                                11



                          76--2                            page i
Criminal Law Amendment (Intimate Images) Bill 2018



Contents



              Part 4 -- Working with Children
                   (Criminal Record Checking)
                   Act 2004 amended
      13.     Act amended                            12
      14.     Schedule 2 amended                     12




page ii
                           Western Australia


                     LEGISLATIVE ASSEMBLY

                      (As amended in Committee)

  Criminal Law Amendment (Intimate Images)
                 Bill 2018

                               A Bill for


An Act to amend The Criminal Code to introduce offences of
distributing an intimate image and threatening to distribute an
intimate image and to make consequential and other amendments to
the Restraining Orders Act 1997 and the Working with Children
(Criminal Record Checking) Act 2004.



The Parliament of Western Australia enacts as follows:




                                                           page 1
     Criminal Law Amendment (Intimate Images) Bill 2018
     Part 1         Preliminary matters

     s. 1



1                    Part 1 -- Preliminary matters
2    1.       Short title
3             This is the Criminal Law Amendment (Intimate Images)
4             Act 2018.

5    2.       Commencement
6             This Act comes into operation as follows --
7              (a) Part 1 -- on the day on which this Act receives the
8                    Royal Assent;
9              (b) the rest of the Act -- on a day fixed by proclamation,
10                   and different days may be fixed for different provisions.




     page 2
                        Criminal Law Amendment (Intimate Images) Bill 2018
                                  The Criminal Code amended         Part 2

                                                                         s. 3



1             Part 2 -- The Criminal Code amended
2    3.     Act amended
3           This Part amends The Criminal Code.

4    4.     Chapter XXVA inserted
5           After section 221B insert:
6

7                   Chapter XXVA -- Intimate images
8         221BA. Terms used
9                In this Chapter --
10               consent has the meaning given in section 221BB;
11               distributes an intimate image of a person includes the
12               meaning given in section 221BC;
13               engaged in a private act means --
14                 (a) in a state of undress; or
15                 (b) using the toilet, showering or bathing; or
16                 (c) engaged in a sexual act;
17               intimate image, of a person --
18                 (a) means a still or moving image, in any form, that
19                       shows, in circumstances in which the person
20                       would reasonably expect to be afforded
21                       privacy --
22                         (i) the person's genital area or anal area,
23                               whether bare or covered by underwear;
24                               or
25                        (ii) in the case of a female person, or
26                               transgender or intersex person
27                               identifying as female, the breasts of the
28                               person, whether bare or covered by
29                               underwear; or


                                                                      page 3
     Criminal Law Amendment (Intimate Images) Bill 2018
     Part 2         The Criminal Code amended

     s. 4



1                           (iii) the person engaged in a private act;
2                          and
3                     (b) includes an image, in any form, that has been
4                          created or altered to appear to show any of the
5                          things mentioned in paragraph (a);
6                   law enforcement agency means --
7                     (a) the Police Force of the State; or
8                     (b) the Police Service of the State; or
9                     (c) the Office of the Director of Public
10                         Prosecutions of the State; or
11                    (d) the Corruption and Crime Commission; or
12                    (e) any entity of another State or a Territory, the
13                         Commonwealth or another country that has
14                         functions similar to functions of an entity
15                         referred to in paragraph (a), (b), (c) or (d).

16          221BB. Term used: consent
17            (1)   In this Chapter a reference to consent is a reference to
18                  consent freely and voluntarily given.
19            (2)   Without limiting the generality of subsection (1),
20                  consent is not freely and voluntarily given if it is
21                  obtained by force, threat, intimidation, deceit or any
22                  fraudulent means.
23            (3)   A person who consents to the distribution of an
24                  intimate image of themselves on a particular occasion
25                  is not, only because of that fact, to be regarded as
26                  having consented to the distribution of the image or
27                  any other image on another occasion.
28            (4)   A person who consents to the distribution of an
29                  intimate image of themselves to or by a particular
30                  person or in a particular way is not, only because of
31                  that fact, to be regarded as having consented to the


     page 4
                   Criminal Law Amendment (Intimate Images) Bill 2018
                             The Criminal Code amended         Part 2

                                                                        s. 4



1            distribution of the image or any other image to or by
2            another person or in another way.
3      (5)   A person who distributes an intimate image of
4            themselves is not, only because of that fact, to be
5            regarded as having consented to any other distribution
6            of the image or any other image.
7      (6)   A person under 16 years of age is incapable of
8            consenting to the distribution of an intimate image.
9      (7)   This section does not limit the grounds on which it may
10           be established that a person does not consent to the
11           distribution of an intimate image.

12   221BC. Term used: distributes
13           In this Chapter a person distributes an intimate image
14           of a person by --
15             (a) communicating, exhibiting, selling, sending,
16                   supplying, offering or transmitting the image to
17                   a person other than themselves or the person
18                   depicted in the image; or
19             (b) making the image available for access by
20                   electronic or other means by a person other
21                   than themselves or the person depicted in the
22                   image; or
23             (c) entering into an agreement or arrangement to
24                   do anything referred to in paragraph (a) or (b).

25   221BD. Distribution of intimate image
26     (1)   In this section --
27           media activity purposes means the purposes of
28           collecting, preparing for the distribution of, or
29           distributing --
30             (a) material having the character of news, current
31                    affairs or a documentary; or


                                                                    page 5
     Criminal Law Amendment (Intimate Images) Bill 2018
     Part 2         The Criminal Code amended

     s. 4



1                    (b)   material consisting of commentary or opinion
2                          on, or analysis of, news, current affairs, or a
3                          documentary.
4             (2)   A person commits a crime if --
5                    (a) the person distributes an intimate image of
6                          another person (the depicted person); and
7                    (b) the depicted person does not consent to the
8                          distribution.
9                   Penalty for this subsection: imprisonment for 3 years.
10                  Summary conviction penalty for this subsection:
11                     imprisonment for 18 months and a fine of $18 000.
12            (3)   It is a defence to a charge under subsection (2) to prove
13                  that --
14                     (a) the distribution of the image was for a genuine
15                           scientific, educational or medical purpose; or
16                    (b) the distribution of the image was reasonably
17                           necessary for the purpose of legal proceedings;
18                           or
19                     (c) the person who distributed the image --
20                              (i) distributed the image for media activity
21                                   purposes; and
22                             (ii) did not intend the distribution to cause
23                                   harm to the depicted person; and
24                            (iii) reasonably believed the distribution to
25                                   be in the public interest;
26                           or
27                    (d) a reasonable person would consider the
28                           distribution of the image to be acceptable,
29                           having regard to each of the following (to the
30                           extent relevant) --
31                              (i) the nature and content of the image;



     page 6
                   Criminal Law Amendment (Intimate Images) Bill 2018
                             The Criminal Code amended         Part 2

                                                                      s. 4



1                     (ii)   the circumstances in which the image
2                            was distributed;
3                    (iii)   the age, mental capacity, vulnerability
4                            or other relevant circumstances of the
5                            depicted person;
6                    (iv)    the degree to which the accused's
7                            actions affect the privacy of the depicted
8                            person;
9                     (v)    the relationship between the accused
10                           and the depicted person;
11                   (vi)    any other relevant matters.
12     (4)   Nothing in subsection (2) makes it an offence --
13            (a) for a member or officer of a law enforcement
14                  agency or their agents to distribute an intimate
15                  image when acting in the course of their official
16                  duties; or
17            (b) for a person to distribute an intimate image in
18                  accordance with, or in the performance of the
19                  person's functions under, a written law or a law
20                  of the Commonwealth or another State or
21                  Territory; or
22            (c) for a person to distribute an intimate image for
23                  the purposes of the administration of justice.

24   221BE. Court may order rectification
25     (1)   In this section --
26           intimate image offence means --
27             (a) an offence under section 221BD; or
28             (b) an offence under section 338A or 338B, if the
29                    offence involves a threat to distribute an
30                    intimate image of a person; or




                                                                   page 7
     Criminal Law Amendment (Intimate Images) Bill 2018
     Part 2         The Criminal Code amended

     s. 4



1                     (c)   an offence under section 338C, if any of the
2                           following relate to the distribution of an
3                           intimate image of a person --
4                              (i) the threat referred to in
5                                  section 338C(1)(a);
6                             (ii) the intention, proposal, plan or
7                                  conspiracy referred to in
8                                  section 338C(1)(b); or
9                            (iii) the belief, suspicion or fear referred to
10                                 in section 338C(2)(a).
11            (2)   If a person is charged with an intimate image offence,
12                  the court may order the person to take reasonable
13                  actions to remove, retract, recover, delete, destroy or
14                  forfeit to the State any intimate image to which the
15                  offence relates within a period specified by the court.
16            (3)   The court may make an order under subsection (2)
17                  whether or not the person is convicted of the offence.
18            (4)   In considering whether or not to make an order under
19                  subsection (2), and the content of that order, the court
20                  must have regard to any other similar obligations the
21                  person is under in relation to the image.
22            (5)   This section does not limit the court's powers under
23                  section 731 or under the Criminal Property
24                  Confiscation Act 2000.
25            (6)   A person who, without reasonable excuse, fails to
26                  comply with an order made under subsection (2)
27                  commits an offence.
28                  Penalty for this subsection: imprisonment for
29                     12 months and a fine of $12 000.




     page 8
                           Criminal Law Amendment (Intimate Images) Bill 2018
                                     The Criminal Code amended         Part 2

                                                                               s. 5



1         221BF. Review of amendments made by Criminal Law
2                Amendment (Intimate Images) Act 2018
3           (1)     The Minister must review the operation and
4                   effectiveness of the amendments made to this Code, the
5                   Restraining Orders Act 1997 and the Working with
6                   Children (Criminal Record Checking) Act 2004 by the
7                   Criminal Law Amendment (Intimate Images) Act 2018,
8                   and prepare a report based on the review, as soon as
9                   practicable after the 3rd anniversary of the day on
10                  which the Criminal Law Amendment (Intimate Images)
11                  Act 2018 section 4 comes into operation.
12          (2)     The Minister must cause the report to be laid before
13                  each House of Parliament as soon as practicable after it
14                  is prepared, but not later than 12 months after the
15                  3rd anniversary.
16


17   5.     Section 338 amended
18          In section 338:
19            (a) in paragraph (d) delete "not." and insert:
20

21                   not; or
22

23            (b)    after paragraph (d) insert:
24

25                   (e)    distribute an intimate image (within the
26                          meaning given to those terms in
27                          section 221BA) of any person other than the
28                          distributor.




                                                                          page 9
     Criminal Law Amendment (Intimate Images) Bill 2018
     Part 2         The Criminal Code amended

     s. 6



1    6.         Section 338B amended
2               In section 338B delete "(c) or (d)" and insert:
3

4               (c), (d) or (e)
5


6    7.         Section 338C amended
7         (1)   In section 338C(1):
8                 (a) in paragraph (a) delete "(c) or (d)" and insert:
9

10                      (c), (d) or (e)
11

12                (b)   in paragraph (b) delete "(c) or (d)," and insert:
13

14                      (c), (d) or (e),
15

16        (2)   In section 338C(2)(a) delete "(c) or (d)" and insert:
17

18              (c), (d) or (e)
19




     page 10
                           Criminal Law Amendment (Intimate Images) Bill 2018
                            Restraining Orders Act 1997 amended        Part 3

                                                                           s. 8



1          Part 3 -- Restraining Orders Act 1997 amended
2    8.      Act amended
3            This Part amends the Restraining Orders Act 1997.

4    9.      Section 3 amended
5            In section 3(1) insert in alphabetical order:
6

7                  distributes has the meaning given in The Criminal
8                  Code section 221BA;
9                  intimate image has the meaning given in The Criminal
10                 Code section 221BA;
11


12   10.     Section 5A amended
13           Delete section 5A(2)(k) and insert:
14

15                   (k)    distributing an intimate image of the family
16                          member without the family member's consent,
17                          or threatening to distribute the image;
18


19   11.     Section 10G amended
20           Delete section 10G(2)(g) and insert:
21

22                   (g)    distributing an intimate image of the person
23                          seeking to be protected, or threatening to
24                          distribute the image;
25


26   12.     Section 30A amended
27           In section 30A(1)(b)(ii) delete "and domestic".



                                                                       page 11
     Criminal Law Amendment (Intimate Images) Bill 2018
     Part 4         Working with Children (Criminal Record Checking) Act 2004
                    amended

     s. 13


1          Part 4 -- Working with Children (Criminal Record
2                   Checking) Act 2004 amended
3    13.        Act amended
4               This Part amends the Working with Children (Criminal Record
5               Checking) Act 2004.

6    14.        Schedule 2 amended
7               In Schedule 2 under the heading "The Criminal Code" insert in
8               numerical order:
9
             s. 221BD       Distribution of intimate image where image is of a child
10




11




     page 12

 


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