[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
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
[Index] [Search] [Download] [Related Items] [Help]