Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697635252613.pdf (Australia)
Adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capturecyberbullyingSubmission 21 Scope of Submission This submission relates to two specific terms of reference of the Inquiry, namely: The adequacy of existing offences under South Australian law to capture cyberbullying, including: 1.

The broadcasting of assaults and other crimes via social media platforms 2.

Other measures to combat cyberbullying between school children and other young people.
Existing offences under South Australian Law The issue of cyberbullying is a complex contemporary issue.

The criminal law cannot in isolation bring about the cultural change required to reduce the prevalence and severity of bullying behaviour.

However, the criminal law has a critical role to play in setting the limits of appropriate conduct.
Accordingly, there are various offences under South Australian law that may apply to cyberbullying and revenge pornography situations (recognising that there is a significant overlap between them).
These include offences relating to the possession, production or distribution of child exploitation material if the victim is under 17 years; blackmail; computer misuse offences; stalking (of particular application to cyberbullying); offensive behaviour; assault causing harm; intentionally or recklessly causing harm or serious harm; criminal defamation and the intentional use of a listening device (other than in accordance with the Listening and Surveillance Devices Act 1972 (SA)) to overhear, record, monitor or listen to any private conversation, whether or not the person is a party to the conversation, without the consent, express or implied, of the parties to that conversation.
The existing criminal offences of this type were, however, typically ill-suited to deal with the modern problem of cyberbullying or revenge pornography scenarios.

This prompted the introduction of the Summary Offences (Filming Offences) Act 2013 (SA) that introduced new specific offences to the Summary Offences Act 1953 (SA) (“SOA”) to address revenge pornography and cyberbullying.
The 2013 Act addressed two concerns as noted by the Attorney- General: ‘the first one might call an invasion of dignity and the second an invasion of privacy.’ This submission will primarily focus on the filming and sexting offences but will also set out the various other relevant offences under both the SOA and the Criminal Law Consolidation Act 1935 (“CLCA”) for the Committee’s reference.
The submission will also touch on the capacity for the Intervention Orders (Prevention of Abuse) Act 2009 (“IOA”) to have a role in discouraging cyberbullying behaviour.

Filming and sexting offences Of particular relevance to Part A of the Inquiry’s terms of reference, namely the broadcasting of assaults and other crimes via social media platforms, are the offences contained in Part 5A of the SOA.
Part 5A sets out a number of different offences which are applicable to cyberbullying and revenge porn behaviour.

2 Adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capturecyberbullyingSubmission 21 The vast majority of these offences were introduced by the South Australian Government in 2013.

However, the Summary Offences (Filming and Sexting Offences) Amendment Act 2016 (SA) has now clarified and tightened these offences.
It passed the South Australian Parliament with all party support and came into operation on 28 October 2016.

The new Act clarifies and strengthens the criminal law in South Australia regarding revenge pornography.
As the South Australian Attorney-General, the Hon John Rau, explained, the 2016 Act ‘reflects changing social and technological trends and reaffirms standards of appropriate conduct, especially involving the use of invasive images depicting minors.’ Humiliating or degrading filming Section 26B of the SOA contains the offences of humiliating or degrading filming and distribution of an image obtained by humiliating or degrading filming.
The phrase “humiliating and degrading filming” is defined in s 26A(1) as: [F]ilming images of another person while the other person is being subjected to, or compelled to engage in, a humiliating or degrading act, but does not include filming images of a person who consents to being subjected to, or engaging in, a humiliating or degrading act and consents to the filming of that act.

A person is guilty of an offence if they engage in humiliating or degrading filming.
The maximum penalty for this offence is imprisonment for 1 year.

A person is also guilty of an offence if they distribute an image obtained by humiliating or degrading filming knowing or having reason to believe that the victim does not consent to that particular distribution of the image, or, does not consent to that particular distribution of the image and does not consent to distribution of the image generally.

The maximum penalty for this offence is imprisonment for 1 year.
Distribution of invasive image Section 26C of the SOA contains the offence of distributing an invasive image.
The offence is drafted in identical terms to the offence of distributing an image obtained by humiliating or degrading filming, namely a person will be guilty of the offence if they distribute an invasive image of another person knowing or having reason to believe that the other person does not consent to that particular distribution of the image and does not consent to distribution of the image generally.
The phrase “invasive image” is defined in s 26A(2) and (3) as follows: [A]n image of a person will be taken to be an invasive image of the person if it depicts the person in a place other than a public place - (a) engaged in a private act; or (b) in a state of undress such that - (i) (ii) in a case of a female - the bare breasts are visible; or in any case - the bare genital or anal region is visible.
3 Adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capturecyberbullyingSubmission 21 However, an image of a person that falls within the standards or morality, decency and propriety generally accepted by reasonable adults in the community will not be taken to be an invasive image of the person.

The maximum penalty for the offence of distributing an invasive image is dependent on the age of the victim.
If the invasive image is of a person under the age of 17 years the maximum penalty is a fine of $20,000 or imprisonment for four years.

In any other case the maximum penalty is a fine of $10,000 or imprisonment for two years.

Indecent filming Section 26D contains the offences of indecent filming and distributing an image obtained by indecent filming.

As with the other like offences contained in Part 5A, the offence of indecent filming is established if a person engages in indecent filming.
The phrase indecent filming is defined in s 26A(1) as: [F]ilming of - (a) (b) (c) another person in a state of undress in circumstances in which a reasonable person would expect to be afforded privacy; or another person engaged in a private act in circumstances in which a reasonable person would expect to be afforded privacy; or another person's private region in circumstances in which a reasonable person would not expect that the person's private region might be filmed.
The maximum penalty for the offence of engaging in indecent filming is a fine of $10,000 or imprisonment for two years.

It is a defence to a charge of indecent filming if the accused is able to prove that the indecent filming occurred with the consent of the person filmed.
The offence of distributing an image obtained by indecent filming carries a maximum penalty of a fine of $20,000 or imprisonment for four years if the person filmed was under the age of 17 years and a fine of $10,000 or imprisonment for two years in any other case.

Consent is again a defence if the accused is able to prove that the person filmed consented to that particular distribution of the image or consented to distribution of the image generally.
Threatening to distribute Finally, s 26DA(1) and (2) of the SOA contains the offences of threatening to distribute an invasive image or an image obtained from indecent filming.

The offences are established if a person threatens to distribute an invasive image of a person (or an image obtained by the indecent filming of a person) and intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused.
The maximum penalties for both offences are a fine of $10,000 or imprisonment for two years if the victim is under the age of 17 and a fine of $5,000 or imprisonment for one year in any other case.

The consent of the victim is again a defence to both offences.
4 Adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capturecyberbullyingSubmission 21 Consent As noted above, the consent of the victim is a defence to various of the offences set out in Part 5A of the SOA.
It is important to note that s 26E makes it clear that an apparent consent will not be an effective consent for the purposes of these offences if the consent is given by a person under the age of 17 years, a person with a cognitive impairment, or a person whose consent was obtained by duress or deception.
Application to cyberbullying behaviours The offences set out in Part 5A of the SOA criminalise acts commonly associated with cyberbullying, such as distributing humiliating or degrading images via social media platforms or threatening to distribute such images.

The offences capture a wide range of images, from images obtained by subjecting another person to a humiliating act to images obtained by filming another person when a reasonable person would expect that person to be afforded privacy.
Most importantly, the offences criminalise the distribution of certain images even if the person captured in the image consented to the image being created so long as the person did not also consent to the distribution of the image.

Other offences Unlawful stalking Section 19AA of the CLCA contains the offence of unlawful stalking.

Section 19AA(1)(a) lists the various types of behaviour that may amount to stalking, many of which are the types of behaviour often associated with cyberbullying.
They include:  giving or sending offensive material to another person;   publishing or transmitting offensive material by means of the internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, the other person; or communicating with the other person, or to others about the other person, by way of telephone or the internet or some other form of electronic communication in a manner that could reasonably be expected to arouse apprehension or fear in the other person.
If a person engages in the above behaviour on at least two separate occasions, and the person intended to cause serious physical or mental harm to the other person (or a third person) or intended to cause serious apprehension or fear, the offence of unlawful stalking is made out.

The maximum penalty for the offence is imprisonment for three years for a “basic” offence and five years for an “aggravated offence”.

The circumstances that amount to aggravation are set out in s 5AA of the CLCA.
A person charged with the offence of unlawful stalking is also taken to have been charged in the alternative with the offence of offensive behaviour.
This means that if the court is not satisfied that the charge of unlawful stalking has been established, but is satisfied that the offence of 5 Adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capturecyberbullyingSubmission 21 offensive behaviour has been established, the court may convict the person of offensive behaviour.
Offensive behaviour The offence of offensive behaviour is set out in s 7 of the SOA and is established if a person, in a public place, behaves in an offensive manner.

The term “offensive” includes threatening, abusive or insulting behaviour.

The maximum penalty for the offence is a fine of $1,250 or imprisonment for three months.

Acts causing serious harm or harm Sections 23 and 24 of the CLCA contain the offences of causing serious harm and harm.
The offences of intentionally causing serious harm (or harm) are established if a person causes serious harm (or harm) to another, intending to cause that harm.

The maximum penalty for intentionally causing serious harm is imprisonment for 20 years for a basic offence and 25 years for an aggravated offence.

The maximum penalty for intentionally causing harm is imprisonment for 20 years for a basic offence and 13 years for an aggravated offence.
An alternative offence is included whereby a person is guilty of an offence if that person causes serious harm (or harm) to another and is reckless in doing so, as opposed to intentionally causing the harm.

The maximum penalty for recklessly causing serious harm is imprisonment for 15 years for a basic offence and 19 years for an aggravated offence.

For recklessly causing harm the maximum penalty is imprisonment for five years for a basic offence and seven years for an aggravated offence.
Importantly, mental harm is within the offences if the person’s primary purpose was to cause mental harm.

However ‘mental harm’ has a narrow meaning in this context and means ‘psychological harm’ (which is ‘nervous shock’ in the old terminology and will usually require expert evidence) and ‘mere emotions such as distress, anxiety or fear do not amount to ‘mental harm’.

Causation is also dealt with in s 21.


A person is taken to have caused harm if the person’s conduct is the sole cause of the harm or substantially contributed to the harm.

Acts endangering life or creating risk of serious harm or harm Section 29 of the CLCA contains the offences of endangering life and creating risk of serious harm or harm.
The offence of endangering life is established if a person, without lawful excuse, does an act or makes an omission knowing that the act or omission is likely to endanger the life of another and intending to endanger the life of another or being recklessly indifferent as to whether the life of another is endangered.

The maximum penalty is imprisonment for 15 years for a basic offence and 18 years for an aggravated offence.

The offences of creating risk of serious harm or harm are set out in similar terms.
The maximum penalty for creating a risk of serious harm is imprisonment for 10 years for a basic 6 Adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capturecyberbullyingSubmission 21 offence and 12 years for an aggravated offence.

For the offence of creating risk of harm the maximum penalties are imprisonment for five years for a basic offence and seven years for an aggravated offence.
The definitions of serious harm, harm and cause applicable to ss 23 and 24 of the CLCA also apply to s 29.
Criminal defamation Cyberbullying content may constitute criminal defamation if the elements of s 257 of the CLCA are met: S 257 (1) A person who, without lawful excuse, publishes defamatory matter concerning another living person— (a) knowing the matter to be false or being recklessly indifferent as to whether the matter is true or false; and (b) intending to cause serious harm, or being recklessly indifferent as to whether the publication of the defamatory matter will cause serious harm, to a person (whether the person defamed or not), is guilty of an offence.
The maximum penalty for the offence is imprisonment for 3 years.

Other measures The Intervention Orders (Prevention of Abuse) Act 2009 (“IOA”) sets out a scheme by which a person may be issued an intervention order to prevent that person from committing acts of abuse against another person.

Pursuant to s 8 of the IOA, abuse can take many forms including physical, sexual, emotional, psychological or economic abuse.
Of particular relevance to cyberbullying behaviors, an act is considered to be an act of abuse if it results, or is intended to result in physical injury or emotional or physical harm.

Emotional or physical harm includes mental illness; nervous shock; and distress, anxiety or fear that is more than trivial.

Section 8(4) sets out examples of emotional or physical harm.
Of relevance to the Inquiry is the following:   publishing or transmitting offensive material by means of the Internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, the person; and communicating with the person, or to others about the person, by way of mail, telephone (including associated technology), fax or the Internet or some other form of electronic communication in a manner that could reasonably be expected to cause emotional or psychological harm to the person.
7 Adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capturecyberbullyingSubmission 21 The South Australian Government has also outlined a number of reforms and initiatives with respect to domestic violence in response to community and sector feedback on the Domestic Violence Discussion Paper.
As part of this reform, the Government is drafting amendments to the IOA to expand the definition of ‘abuse’ to ensure that the following behaviour is captured as abuse in an application for an intervention order:    the sharing of intimate/private photos of a person without their consent forced marriage barring a person from entering their home (shared or otherwise).
An intervention order may be issued against a person if it is reasonable to suspect that the person will, without intervention, commit an act of abuse against another person, and the issuing of the order is appropriate in all the circumstances.

Intervention orders may be issued by the South Australian Magistrates Court or by police.
An intervention order issued by police is an interim intervention order which must be brought before the Magistrates Court within eight days after the commencement of the order.

Police may issue an interim intervention order against a person, by personal service only, if it appears to the police officer that there are grounds for issuing the order.
An intervention order may be issued by the Magistrates Court on an application by a police officer or a person against whom it is alleged another person may commit an act of abuse (or, with permission of the Magistrates Court, a suitable representative of that person).
If the applicant is a child the application may be made by the child with permission of the Magistrates Court if the child is 14 years or, in any other case, by a parent or guardian, a person with whom the child regularly resides or, with permission of the Magistrates Court, some other suitable representative of the child.

An intervention order made by the Magistrates Court does not have an end date.

The order will continue to operate until further order by the Magistrates Court.
The terms of an intervention order can cover a broad range of issues; there is no limitation.

For example, an applicant may ask for an order prohibiting a person from undertaking certain activities such as communicating with the victim, or about the victim, by any means.

It is an offence to contravene an intervention order.

The maximum penalty is imprisonment for two years, unless the contravention is in relation to an order to attend an intervention program.
If the contravention is in relation to this latter issue the maximum penalty is a fine of $1,250.

There is capacity for intervention orders to play a role in the prevention of cyberbullying.

Behaviours commonly associated with cyberbullying will often fall within the definition of abuse under the IOA.

Further, the broad scope of conditions that may be imposed by an order will in most cases be able to effectively prohibit a person from engaging in cyberbullying behaviours.
If the person continues to engage in the prohibited behaviours they will commit an offence punishable by imprisonment.

8 Adequacy of existing offences in the Commonwealth Criminal Code and of state and territory criminal laws to capturecyberbullyingSubmission 21