Unsurprisingly the Government rejected Recommendation 12, ie that
legislation to create a statutory cause of action for invasion of privacy by the misuse of private information, following recommendations 23, 25, 27, and 29 to 33 of the Victorian Law Reform Commission’s Surveillance in Public Places: Final Report 18 (2010).It similarly has not embraced Recommendation 13 regarding establishment of a Digital Communications Tribunal (as a stand-alone body or as a ‘list’ within the Victorian Civil & Administrative Tribunal) to deal with complaints about harmful digital communications.
The specific responses to the other recommendations are as follows -
R1 - research to examine qualitative and quantitative aspects of sexting practices by children and adults in Victoria.
- recommendation accepted in principle, with research to be undertaken by Australian Institute of Criminology
R2 - Victorian schools to adopt holistic, integrated programs for internet and communications technologies awareness and safety
- development of 'resilience framework' etc underway
R3 - encouragement of current and pre-service teachers to take part in professional development programs focusing on cybersafety education.
- work underway
R4 - educational and media campaigns directed toward sexting focus on the appropriateness of the behaviour of people who distribute intimate images or media without consent, rather than on the person who initially creates the intimate images or media.
- work underway
R5 - review by Victoria Police of diversion policies for adults charged with offences in relation to exploitative sexting-type behaviour.
- review to be undertaken
R6 - legislation to amend each of the child pornography offences in the Crimes Act 1958 (Vic) and the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic).
- legislation to be introduced (reportedly with a Bill being introduced before Christmas 2013)
R7 - the Government advocate that the Commonwealth, States and Territories amend their criminal legislation to provide defences to child pornography offences, consistent with the new Victorian defences.
- advocacy to be undertaken
R8 - adoption of an express policy to not prosecute Commonwealth child pornography offences where an accused person would have a valid defence to child pornography charges under Victorian legislation.
- investigation to be undertaken
R9 - introduction of a specific offence for sexting to the Summary Offences Act 1966 (Vic).
- recommendation accepted, with legislation to be introduced
R10 - that if R6 and R9 are not accepted in full, the Government introduce legislation to amend the Sex Offenders Registration Act 2004 (Vic) so that sentencing judges have discretion whether to order that an adult offender convicted of a sexting-related offence be listed on the Sex Offenders Register.
- NA, given acceptance of R6 and R9
R11 - establishment of a mechanism to review the registration of any person currently listed on the Sex Offenders Register, where that person would have had a defence under legislation introduced in accordance with R6.
From a privacy (and personality rights) perspective the most interesting point is the response to R9, with establishment of an offence potentially acting as a deterrent for invasions of privacy in the form of nonconsensual sexting.
- review to be undertaken
