SUMMARY OFFENCES (INDECENT FILMING) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 5 March 2008. Page 2411.)

Mrs REDMOND (Heysen) (17:17): I indicate that I am the lead speaker for the opposition in relation to this bill. In spite of the fact that this means I do not have a time limit, I promise I will not keep the house very long. The bill seeks to address some problems which have arisen because of the development of technology. It has long been my view that parliaments and the law struggle at the moment to keep up with the progress (if that is what one would call it) of technology. I do not think it is necessarily progress, but the nature of technology is changing so quickly that as soon as we have dealt with one problem created by the so-called advances in technology there is another problem upon us.

The particular problem that this bill seeks to address is primarily directed at the problem created by mobile phones with cameras. Well do I remember that I was fairly new in this parliament when the member for West Torrens came in with a brand new mobile phone with a camera in it, and, indeed, he was using it. I seem to remember that Speaker Lewis had some reaction to the idea that anyone might take photographs within the chamber, be they a member or someone else. I am certainly no lover of mobile phones. I do have a phone with the camera facility, but that is only because I could not buy one that did not have a camera. I can see the member for Morphett's beautiful granddaughter on his phone's screensaver.

The Attorney-General will be really happy to know what I have on my camera. I have not taken photos with my phone, but other people have taken photos with the camera on my phone. Last year in July, like the Attorney this July, I went to New Zealand, because I had to give a paper at the Legislative Review Conference. The committee here decided that I was the one and, believe me, going to Wellington in July is not everybody's cup of tea. We had the conference dinner, which was held at the wonderful museum in Wellington, the Te Papa Tongarewa. It was a wonderful dinner, and there were about 80 or 90 politicians present.

For some reason, they sat me at the official table, which had only about eight guests, beside the Rt Hon. Sir Geoffrey Palmer, a former Labour prime minister of New Zealand. We had a very pleasant evening; we got on very well. On my camera I still have a photo of the Rt Hon. Sir Geoffrey Palmer and me arm in arm at the dinner. I do not have many photos on my camera, but I do have a photo of myself with the Rt Hon. Sir Geoffrey Palmer. Apart from a couple of other photos that people have sent to me—one from a girlfriend when she was in Europe, and so on—I do not have many photos on my camera, and nor do I want to. I have no interest in most of my camera's facilities. Nevertheless, the fact is that a lot of people use their mobile phone camera facility frequently, and, indeed, they use other very small cameras frequently.

The problem that we now have has been given the special name of 'upskirting', because there are devious sorts of people—men, mostly—who go around with cameras, which they use to take photos directed up ladies' skirts. I suppose they might do that to a Scotsman in a kilt, or something like that, for the benefit of our parliamentary officer, Gerry, from Scotland. I challenge him to one day wear a kilt in here as part of his uniform. The point is that this new technology has enabled this sort of thing to start happening. Cameras can be very small, they can be hidden and they can be used in inappropriate ways. This bill creates two new offences: the first, of actually taking the film, is an offence of indecent filming—and that can be film as in a video or a static single frame shot.

Indecent filming is taking pictures by any means—so, whether by mobile phone or miniature camera or whatever—when the person is undressed or engaging in a private act, or pictures taken under a person's outer clothing of the person's genital region. However, indecent filming only occurs in circumstances where a reasonable person would expect privacy or, in the case of upskirting, would not expect such pictures to be taken. Of course, 'upskirting' is new terminology that has come into our language—

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: The Attorney says 'down-blousing' is the corollary to 'upskirting'. The names are quite descriptive of the offence that could be involved—and I say 'could', because theoretically someone could engage in upskirting with the knowledge and permission of the person being photographed—although, obviously, most of the time that would be unlikely. That is the first offence; the test is whether a reasonable person would expect privacy in given situations, and the court will have to decide that on the facts of the case.

It will not always occur when people are travelling up escalators or going up stairs, or walking along with someone close to them. Earlier this year, for instance, my daughter was working in a video store that had a change facility so that employees could travel to work in ordinary clothing and change into their uniform in that facility before commencing duties in the store. After she had been working there for some weeks my daughter was quite surprised to find that there was, in fact, a camera on them while they were getting changed. I would say that is a situation which would be caught by this legislation, because the person changing for work in a work change-room would reasonably expect to have privacy. The court would have to decide on the facts whether that were the case, but in essence that is the first part of the offences.

The second offence is that of distribution, and it is a separate offence. So, it is an offence in and of itself to take the photo, but modern technology allows people to send the photo not only to one other person but to hundreds of people if they have a list in their telephone—even hundreds of thousands of people, theoretically. Most commonly there is a fairly limited number, but nevertheless it is more than one person. Just like in a defamation action, you only need to publish to any third party. The distribution is a separate offence and it relates to a picture that has been created as an indecent film. 'Distribute' is defined to include:

(a) communicate, exhibit, send, supply or transmit; and

(b) make available for access by another; and

(c) enter into an agreement or arrangement to do something contemplated by paragraphs (a) and (b); and

(d) attempt to distribute;

That will capture virtually everything I can think of (although I am not a technological expert). It will certainly capture not just the person taking the original picture—who will be captured by both the indecent filming and the distribution, if they send it on—but if the person receiving it then sends it on to someone else, they too will be guilty of that separate offence of distribution.

There are a couple of exceptions within the legislation. First, there are specific exemptions for law enforcement personnel acting in the course of law enforcement or legal proceedings. It is also a defence if the indecent filming was undertaken by a licensed investigation agent—that is, someone who has been licensed under the Security and Investigation Agents Act. That raises an interesting question, and I hope—

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: If the Attorney takes a photo of me whilst I am speaking it will not be indecent filming, since it will involve neither upskirting nor down-blousing, nor any other inappropriate—

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: The Attorney indicates that he is so technologically competent that, in trying to take a photo of me during my contribution, he has taken a photo of his own knee.

The DEPUTY SPEAKER: Order! I believe there should not be any mention of taking photos of anyone, as it is entirely against standing orders. There may be accidents.

Mrs REDMOND: I am pleased to report, Madam Deputy Speaker, that the Attorney was unsuccessful in his attempt to take photos—at least when I started this sentence. As I said, regarding the second part of the offence, we have law enforcement personnel in the course of their duties. Obviously, if it were not appropriate conduct in the course of their duties they would be caught; however, if it is law enforcement personnel in the course of their duties then they will have the protection of the exemption. A licensed investigation agent can have the exemption if they are undertaking indecent filming.

That leads me to an interesting question, to which I hope the Attorney will pay enough attention so that he can attempt to answer it when he makes his response to the second reading contributions. I want to know: if a registered licensed investigation agent is able to get the exemption under the act and has that defence, where does the line begin and end for that person? It seems to me that, almost inevitably, it will not be very long before a licensed investigation agent is engaged to ascertain whether someone is participating in an affair and, clearly, that could lead to a licensed investigation agent taking photos which would otherwise contravene this legislation and which would be classified as indecent filming. That is, moving or still pictures of a person taken by any means when that person is undressed or engaging in a private act, or pictures taken under a person's outer clothing of the person's genital region but which occurs only if taken in circumstances where a reasonable person would expect privacy.

People engaging in—let us use the quaint term—an adulterous affair would expect privacy. I do not know a lot about these things, but in my experience they are not generally engaging in these acts in public and, therefore, they expect privacy. They are engaging in a private act. They expect privacy. Let us suppose they are in a state of undress—

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: As the Attorney-General says, they might be having dinner together, but let us suppose things in this adulterous affair have gone a little further and that they are in a state of undress and engaging in what everyone would agree is a private act. Therefore, it would come within the definition of indecent filming. Indeed, when the investigator shows the film to their client, the investigator would come within the definition of distribution. The fact is that the bill appears to say that it is a defence if it was undertaken by a licensed investigation agent. Therefore, it would seem to me that prima facie those people will be allowed to take quite intimate pictures of people engaging in adulterous affairs and distribute them, at least in so far as showing those pictures to the person who has engaged them.

The Attorney-General says that none of this is necessary because of the Family Law Act. I must say that the first time I studied family law it was under the old matrimonial causes act—and I failed it. I had to do it again and, happily for me, that great Labor stalwart Lionel Murphy—and the Attorney-General makes a rude gesture with his fingers in his mouth—in 1975 changed the law, and the new Family Law Act made a lot more sense to me than what I had studied under the old matrimonial causes act. When I got to bestiality and the defence of consent and acquiescence, and so on, it really just was too much for my poor little brain to take, and I suspect I failed it for good reason. I was very happy to pass it under the new legislation.

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: The Attorney-General suggests that because that law has been in place for more than 30 years we do not need evidence for divorce, but let me assure the Attorney-General that there are lots of private investigators whose living is made almost entirely from getting instructions from suspicious spouses to trail their erstwhile better half.

In conclusion, I want to raise a matter the member for Morphett was going to raise, had he time. He has a commitment in another part of the building. On 24 March 2004, when the member for Morphett and I were biding our time on the back bench, he put out a press release headed, 'Peeping Tom photography on the rise'. So 4¼ years ago, the member for Morphett called on the state government to closely examine the use of mobile phone cameras after questioning a peeping Tom with a mobile phone camera in front of his electorate office at Glenelg.

He indicated then that mobile cameras were becoming a menace on the street. He confronted this chap who was using his mobile phone to take photos of young women without their permission, possibly to put on the internet; so there are two of the elements. Admittedly, there is no indication in his statement that there was anything indecent about the photographs but, nevertheless, he was alerting the government way back then to the problem of this particular development—and I think it is a development, not an advance—in technology.

I welcome the legislation and the opposition supports it. I think this type of legislation has been needed for some time and I am pleased to see the government addressing it. With no disrespect to the government—and I have no doubt it will be our problem when we come into government—technology continues to move much quicker than we are able to keep up with it as legislators, and this will not be the end of problems created for us as legislators as a result of developments in technology.

Mr GOLDSWORTHY (Kavel) (17:36): I rise to speak briefly in support of the bill. I do not need to speak at length: I think the member for Heysen (the shadow attorney-general) has covered the subject matter quite comprehensively, as is the norm for her. I listened with interest at times in my office to the exchange between the Attorney and the member for Heysen. He rarely, if ever, wins the banter in the interjections across the chamber. Although he may think that he has a superior level of intellect, unfortunately, that is not the truth of the matter. I will now come back to the specific issue in relation to this bill.

The Hon. M.J. Atkinson interjecting:

Mr GOLDSWORTHY: That is right. I know that the Attorney-General has not really got his mind here in the parliament at the moment. He is looking forward to his trip and getting on the aeroplane in the morning—is it—and flying off to—

An honourable member interjecting:

Mr GOLDSWORTHY: Oh, the minute we finish the bill? Goodness me. I think we could perhaps look to sit past dinner if we need to. This bill comes about as the law struggles, in some ways, to keep up with the so-called advances in technology—and perhaps 'developments' would be a better term. The bill seeks to address the problem created by mobile telephones which incorporate cameras.

I do not think one can buy a mobile phone these days without an in-built camera. I upgraded my telephone six or so months ago. I had had my previous telephone since I was first elected to this place in 2002. So, the first phone I had when I came to this place had served me very well. It did not have a camera in it. I did not really need a camera in my phone but, as I said, it was difficult to buy a telephone without a camera. I have a perfectly good digital camera that we use to take all sorts of photographs around the electorate, and so on, with respect to community involvement. As I said, one cannot really buy a telephone without a camera in it.

The problem that this bill seeks to address arises from individuals using these cameras inappropriately—and, indeed, quite seriously inappropriately. Many instances have been reported where people have taken photographs inappropriately—as the member for Heysen referred to, upskirting, where people who have extremely questionable motives take photographs up women's skirts. The only motive that I can think of is that it gives them some sort of perverse pleasure. The further technological developments that allow photographs, once taken, to be circulated to others and displayed on the internet are also addressed.

The new offence created under this bill is the indecent filming or the indecent taking of photographs and the distribution of those photographs. We all know how the internet has been an enormously positive technological advance, but it has also brought about a whole range of criminal activity. From time to time we hear about the police arresting these cretins in our society for horrendous crimes such as distributing child pornography and quite shocking material such as that. A constituent contacted me some years ago about a particular internet site. I do not know whether they just came across it or it came up on their computer without their consciously accessing it. It did not involve children but it was —

Mrs Redmond interjecting:

Mr GOLDSWORTHY: —extremely graphic; the member for Heysen is quite correct in that description. I wrote to the federal minister for communications at the time, seeking some direction about how this material could be removed from the cyberspace arena. The response I received was that it was up to individual people to report it and then they would look to try to erase it. However, it is extremely difficult if it comes from overseas, and so on. You have to track back and request that those jurisdictions delete the material, and we know that the laws of other countries are not as stringent as ours in a whole range of areas.

The definition of 'indecent filming', as I understand it, includes 'moving or still pictures of a person taken by any means when that person is undressed or engaging in a private act, or pictures taken under a person's outer clothing of the person's private regions', as one may describe them. It only occurs when taken in circumstances where a reasonable person would expect privacy, or in the case of upskirting (as the term suggests), would not expect such pictures to be taken. This is to avoid the problem of the legitimate use of CCTV cameras and the like. The issue of whether a reasonable person would expect privacy in given situations will be left to the court to assess.

It is my understanding that the definition of 'distribution' will be a separate offence from the creation of the indecent film. 'Distribution' is defined to include: communicate, exhibit, send, supply or transmit and make available for access by another, or enter into an agreement or arrangements to do something contemplated by the first two points, and to attempt to distribute. As members can see, there are specific exemptions for law enforcement personnel acting in the course of law enforcement or legal proceedings. I understand it is also a defence if the indecent filming was undertaken by a licensed investigation agent within the meaning of the Security and Investigation Agents Act 1995.

Obviously, it is the state Liberal's position that we will support this bill. As has been discussed earlier, this really comes about as a result of the advancement in technology. From the way in which technology continues to advance, it is to the point where, when you buy technological equipment, it is almost out of date because the companies continue to develop that technology further. One wonders where will it finish and to where it will all lead?

I know that 16 or 17 year old teenagers like the latest and the greatest gadgets. The other day my daughter came home with the supposed newest and flashest mobile phone which she was very pleased to be able to acquire. She talked her mother into purchasing it for her, even though she has some financial responsibility for it. The things that this phone cannot do are not worth talking about. It is a pretty flash piece of equipment.

I am a relatively simple person in my needs. All I want to do with my mobile phone is receive and make telephone calls and receive and send messages, and without necessarily having a camera. As I said, those options are not available these days because, when you buy a mobile phone, you have to have all the other accessories that go with it. In conclusion, I am supporting the opposition's position.

Mr HANNA (Mitchell) (17:48): It is 2008: the government has introduced legislation to outlaw indecent filming of people. I think I can do no better than to read from my media release of 20 April 2005, as follows:

The law had failed to keep pace with the technology now available that allows techno-perverts to invade our privacy. Mobile phones with cameras are now everywhere, yet we have no laws in South Australia to protect our privacy against strangers taking photos of us or, more disturbingly, our children. We must remember that these images can be emailed instantly to anywhere in the world for the gratification of men with sick minds.

I introduced amendments back in December 2003 to the Listening and Surveillance Devices Act to strengthen the law against surveillance devices, but the government had failed to act on my recommendations. At the moment, the penalty for anyone spying on someone with a listening device is $10,000 or two years in prison. My amendment extended these penalties to a person found spying on someone with a camera. In December 2003, Labor and the Liberals referred the issue to the Legislative Review Committee where it has languished.

That was in 2005. I am pleased to see that, nearly five years after I originally proposed this sort of measure, the government has come forward with legislation to cover this topic.

The government's move, which I fully support, will make it illegal to film someone undressing. It will make it illegal to film someone engaging in sex or going to the toilet. It will make it illegal to film someone's genital or anal region whether covered by underwear or bare. There are sensible exceptions for the purpose of investigating crimes or civil actions, and there is a defence that it would not be an offence if, indeed, there was consent to the said filming. It is well overdue, but I am glad to see that this legislation has been brought forward. I think it will add a sensible measure of protection for our citizens.

Mr PEDERICK (Hammond) (17:51): I, too, rise to support this bill. What we have seen today is what has happened when legislation has not kept up with technology, and I am a perfect example of not keeping up with technology. Before I entered this place, the only computer I ever switched on was my spray computer.

Mr Pengilly: I wouldn't admit too much.

Mr PEDERICK: That is all right. No, I admit that I did struggle a bit with electronic technology. I did manage computers before I came into this place on the campaign trail, but it was a steep learning curve.

Mrs Redmond: Or a slippery slope.

Mr PEDERICK: Or a slippery slope—one of the two. As mentioned earlier by the member for Kavel, part of the issue is that you cannot just buy a simple mobile phone any more. You just want a phone that you can—

Mrs Redmond: Sadly.

Mr PEDERICK: Yes, 'sadly' is the interjection from the member for Heysen. When you do just want to use it for phone calls and you look at texting as an optional extra that you could have lived without, but it is the way of the world. They seem to jam that much technology into a phone now that you can take photos, videos and then send them, I guess, right across the world, if need be.

The Hon. M.J. Atkinson interjecting:

The SPEAKER: Order!

Mr PEDERICK: I hope that does not come under the legislation. Thank you, Mr Speaker, for your protection. You might have to get him to delete that from across the way. Be that as it may, everyone in the populace seems to have a mobile phone now, so basically everyone is walking around with a camera. People who think they are having a bit of fun and games, whether they be young people or older people with deviant minds, think they can have a bit of fun by upskirting. I think that that is disgraceful behaviour, so I am glad to see this legislation has come forward and also the second part of the bill, where it is obviously illegal to distribute those pictures on the internet or anywhere else, for that matter. Obviously with YouTube and other ways of putting films and pictures on the net, access is only limited by your imagination.

The worldwide web is a great thing, but it can be used to terrible disadvantage. In saying that, if people are sick enough to do things such as that, they will be caught and I am glad that, finally, legislation will be put in place that will catch up with people who do these acts. I think it is well beyond time and could not come in soon enough. With those few remarks, I commend the bill.

Debate adjourned on motion of Hon M.J. Atkinson.

[Sitting extended beyond 18:00 on motion of Hon M.J. Atkinson]