SUMMARY OFFENCES (INDECENT FILMING) AMENDMENT BILL

Introduction and First Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs) (12:00): Obtained leave and introduced a bill for an act to amend the Summary Offences Act 1953. Read a first time.

Second Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs) (12:01): I move:

That this bill be now read a second time.

Concern has arisen about whether the present law is adequate to deal with misconduct made possible by recent advances in technology. We now have mobile telephones that incorporate cameras. We have email, by which the resulting pictures can be circulated quickly to others, and the internet—

Mr Hanna interjecting:

The Hon. M.J. ATKINSON: —where they can be displayed for all to see. I am sorry that the member for Mitchell again shows great discourtesy to the house. It is easy to use devices covertly to film people in private situations. Members will recall the discovery a few years ago that a micro camera had been installed in the women's shower block at Lincoln College. A more recent example was the reported use of mobile telephones at a tennis match in Melbourne to take pictures under the clothing of some women spectators attending the event. Most people agree that this sort of conduct is unacceptable and the criminal law must be able to deal with it.

This bill therefore creates new offences of indecent filming and distributing the resulting pictures. Indecent filming occurs when a person takes moving or still pictures, by any means, of a person who is undressed or engaging in a private act or takes pictures under a person's outer clothing of the person's genital region (sometimes called upskirting).

The Hon. R.B. Such interjecting:

The Hon. M.J. ATKINSON: It could be called 'upkilting', as the member for Fisher quite rightly interjects and, in that case, the resulting images would be worse.

Members interjecting:

The Hon. M.J. ATKINSON: No, it does not depend. It is well known that a Scotsman wears nothing under his, whereas most of us, under our skirts, wear underwear.

Members interjecting:

The Hon. M.J. ATKINSON: I do have full Arabic dress at home. The offence only occurs if the film is taken in circumstances where a reasonable person would expect privacy or, in the case of upskirting, would not expect such pictures to be taken.

There are many circumstances in ordinary life where people are lawfully under surveillance. There are surveillance cameras in busy streets and on public transport; in banks, shops and offices; at petrol pumps; and at automatic teller machines. The bill does not restrict filming of that sort. It is directed specifically to filming people in circumstances where they can reasonably expect privacy. The bill does not attempt to list these but leaves it to the courts to consider whether in each case a reasonable person would expect privacy in the particular circumstances.

I seek leave to have the remainder of the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The making of the film or picture by itself will be illegal, whether or not anyone ever sees it. Distribution will be separately illegal. That includes, for example, exhibiting a film, sending a picture to another person's mobile phone, emailing the picture or uploading it to the internet. The distribution offence also extends to making an agreement to distribute the film or pictures, for example, a contract to supply it to someone else. The court on convicting an offender can also order forfeiture of the film or pictures or the equipment used to make them.

There is a defence to the indecent-filming offence if it is established that the subject of the film or picture consented to its being taken. Such consent is a waiver of privacy. Likewise, there is a defence to the distribution offence if the subject consented to the distribution or if the defendant could not reasonably have known that the subject did not consent.

The Bill does not intend to restrict the lawful activities of the police. It is sometimes necessary to keep people or places under surveillance to detect and prosecute crime. The Listening and Surveillance Devices Act 1972 provides for warrants to cover this activity. The Bill provides that a police officer acting lawfully in the course of law-enforcement activities does not commit an indecent-filming offence.

Likewise, the Bill does not seek to prevent the use of licensed private investigators to catch out fraudulent claimants for compensation, where that might involve filming private acts. This is judged necessary because some fraudsters are careful not to be seen in public acting inconsistently with the alleged injury. Such film would be relevant in any resulting legal proceedings.

Subject to these necessary exceptions, therefore, the Bill seeks to protect personal privacy by making illegal the sort of technologically-assisted spying that occurred in the Lincoln College case. It is important that the law keeps pace with technology in this respect.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

The measure will be brought into operation be proclamation.

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Summary Offences Act 1953

4—Insertion of section 23AA

Proposed new section 23AA creates an offence to engage in indecent filming with a maximum penalty of $10,000 or imprisonment for 2 years. The clause defines indecent filming to mean filming of—

(a) another person in a state of undress in circumstances in which a reasonable person would expect to be afforded privacy; or

(b) another person engaged in a private act in circumstances in which a reasonable person would expect to be afforded privacy; or

(c) 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 clause proposes a defence if the indecent filming occurred with the consent of the person filmed or if the indecent filming was undertaken by a licensed investigation agent within the meaning of the Security and Investigation Agents Act 1995 and occurred in the course of obtaining evidence in connection with a claim for compensation, damages, a payment under a contract or some other benefit.

An offence is also committed if a person distributes a moving or still picture obtained by indecent filming. This carries a maximum penalty of $10,000 or imprisonment for 2 years. It is a defence to prove—

(a) that the person filmed consented to the distribution of the moving or still picture; or

(b) that the defendant did not know, and could not reasonably be expected to have known, that the indecent filming was without the person's consent; or

(c) that the indecent filming was undertaken by a licensed investigation agent within the meaning of the Security and Investigation Agents Act 1995 and occurred in the course of obtaining evidence in connection with a claim for compensation, damages, a payment under a contract or some other benefit and the distribution of the moving or still picture was for a purpose connected with that claim.

Debate adjourned on motion of Mr Griffiths.