SUMMARY OFFENCES (FILMING OFFENCES) AMENDMENT BILL

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (16:19): Obtained leave and introduced a bill for an act to amend the Summary Offences Act 1953. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (16:20): I move:

That this bill be now read a second time.

The internet, and the growth of social media on it, has brought a growing and unwelcome phenomenon. The central example of this particular evil is that there is some kind of fight or other criminal conduct involving a victim, provoked or not, unwitting or not, but the point is that the assault is filmed and then screened on the internet somewhere, presumably on YouTube, Facebook or a social media internet home page. A major result, usually intended, is the indiscriminate, pictorial humiliation of a victim.

While there may be legal remedies against the assailants, it is unclear what can be done about those who further victimise the victim in this way. It is possible that some of this behaviour is caught by existing criminal offences. If a victim is hit, for example, it will at least be an assault. The publication of images may be caught by an indecent filming offence in section 23 of the Summary Offences Act 1953, but it may not be possible to catch the actual perpetrator, and the indecent filming offence only deals with part of the concerning behaviour.

This concerning practice is unhappily common and covers a number of examples. Many are listed by the Victorian Law Reform Commission in its 2010 Report on Surveillance in Public Places. The commission said:

There has been a disturbing trend of people recording their own criminal conduct. In some cases this has involved activities that are especially cruel and violent.

In a widely publicised Victorian example, a group of teenage boys lured a teenage girl to a park in Werribee and forced her to remove some of her clothing and perform oral sex. They then set fire to her hair and urinated on her. The young men responsible filmed the entire incident and produced a DVD that they distributed to a number of people. In another incident in Geelong, five men set upon two teenage girls, sexually assaulted them and filmed the incident on a mobile phone. In a recent case, a woman filmed her 14 year old daughter assaulting another girl. Footage of these types of incidents is commonly distributed among friends. There have also been some examples of footage having been posted on the internet.

The commission went on to make it clear that this kind of behaviour is potentially wider. At paragraph 4.55 the commission said:

Recently the media have reported incidents in which individuals have used their mobile phones to film emergencies for the apparent purpose of entertainment. In Queensland after a runaway vehicle hit a backpacker, 'dozens' of bystanders apparently filmed the victim's final moments on their mobile phones. Similarly, in New South Wales, after a traffic accident in which children were killed, bystanders began filming the mother's pleas for assistance and the accident scene.

Similar behaviour overseas has caused some European jurisdictions to enact new criminal offences directed to this kind of behaviour. While reports are similar to those described above, an unusual variation was reported in Spain, where teenagers jumped in front of traffic while accomplices filmed the resulting panicked drivers for their own and others' entertainment. Can I tell the house that that very thing happened to me last night on the way home.

Ms Chapman: Jumping or filming?

The Hon. J.R. RAU: Both. A very silly young man jumped into the middle of the road—a dual carriageway—jumped around in a fairly bizarre fashion, and there was another young man standing on the kerb filming him doing this as cars pulled up, their brakes screeched and so forth. It was absolutely clear that the whole purpose of that very dangerous activity was so that it could be captured on a mobile phone and, presumably, distributed to other people.

This bill comes to terms with some of this anti-social behaviour. It adds to the Summary Offences Act a new part 5A dealing with filming offences. It addresses two concerns: the first one might call an invasion of dignity and the second an invasion of privacy. Addressing the first concern, proposed new sections 26B and 26C would create new offences connected with the filming of a person being subjected to a humiliating or degrading act. There are three offences. First, it is to be an offence to take film of a person who is being subjected to or forced to engage in a humiliating or degrading act. Filming includes moving or still images taken by any means. Second, it is to be an offence to distribute such a film and, third, it is a more serious offence both to engage in the humiliating or degrading treatment of the victim and also either to film it or distribute it. In other words, a group of people acting in concert.

The law is meant to capture the subjection of one person to humiliating or degrading treatment by another. These offences will not capture things that happen by accident, such as where a person slips over in the street or suffers a stroke or a wardrobe malfunction or something else of that nature. It will not capture things that the person himself or herself does, such as being drunk in public or stealing from a shop, even if the taking and distribution of the film are very embarrassing.

It will not capture filming that merely exposes a person to scrutiny that he or she would rather avoid, such as a criminal defendant being filmed walking out of court after a hearing or a celebrity being followed by paparazzi. In these situations the person is not being subjected or forced to undergo humiliating or degrading treatment at the hands of another; they are simply doing what they are doing. This law is not meant to cover situations that are merely embarrassing.

The act to which the victim is subjected must be one that a reasonable adult would think was humiliating or degrading to that person. One might say that this new offence is aimed at invasions of human dignity; that is, at actions that all right-thinking people would consider unacceptable. A person might find it embarrassing to be lawfully stopped and questioned by police in a public place, for instance, but this is not a humiliating or degrading act because it is not one to which a reasonable adult could properly object.

An act is not humiliating or degrading just because the person subjected to it feels humiliated or degraded. The test is not subjective. This law does not seek to protect the over-sensitive; rather, the bill sets an objective test which requires the court to consider whether reasonable adult members of the community would consider such an act humiliating or degrading.

However, the characteristics of the victim are relevant. Reasonable adults might judge the same behaviour to be degrading to one person and not another. For example, suppose that a young man out with friends is wearing a baseball cap and one of his mates playfully knocks it off his head. Reasonable adults would probably judge that this was not humiliating or degrading to him. On the other hand, suppose that a woman wearing a hijab was approached on the street by a stranger who grabbed the hijab and pulled it off. Reasonable adults might well judge that to be a degrading act.

It is true that one cannot say exactly where the line is between embarrassment and humiliation or degradation. However, it is not unusual for criminal offences to use concepts that are not capable of precise definition. An example is possession; there are many others, hundreds of cases. Disorderly behaviour is another example, and dishonesty another.

The law often requires a court to apply community standards or the judgement of a reasonable person; for example, in laws about offensive material. The government sees no unfairness in this. No doubt prosecutorial discretion will be exercised in such a way that the court's time is not wasted on film of events that were merely embarrassing or annoying, or about which the victim has overreacted.

The bill does not intend to capture conduct for legitimate public purposes—and I underline this—that is, conduct in the public interest. The bill gives examples of matters the court should consider. For instance, it should look at whether the conduct was for the purpose of educating or informing the public; as an example, a film that aims to expose abuses, a film of police brutality, or film of degrading conditions in a detention centre would likely be considered to be taken for a legitimate public purpose. The same would be true of news broadcasts or documentary film depicting assaults, racial vilification or other matters of public concern.

The court should also consider whether the filming or distribution was for a purpose connected to law enforcement or public safety. Security camera film would be an example. Cameras commonly operate on public transport, at banks and in city streets as a way of detecting crime or threats to safety. This is in the public interest and it is not intended that the bill capture such filming even if, by chance, humiliating or degrading conduct is filmed. Operators of security cameras would also have the defence that they did not knowingly film relevant images. There is no knowing what security film may capture, and no-one is held responsible for that.

Third, the court must consider whether the filming or distribution occurred for medical, legal or scientific purposes. For example, a film might be evidence in legal proceedings and might be properly submitted to experts for analysis for the purposes of those proceedings. Fourth, the court should take account of any other factor it considers relevant in answering the question of whether the filming was in the public interest. That is the decisive question.

On the second matter, that is, invasion of privacy, the bill creates a new offence of distributing an invasive image. With the use of filming devices now commonly available, it is easy for people to film themselves or each other in any situation. Often, these images may be obtained by consent, as where two people in a relationship take consensual film of their sexual activity, or one may take pictures of himself or herself that are sent to the other perhaps using a mobile phone. In and of itself that is not unlawful, although if the person photographed is under 17, the images could be child pornography and in that case their possession or transmission would be seriously unlawful. Assuming the participants are adults, and assuming they send the images to one another privately and by consent, this law is not concerned with that. What this law is concerned with, however, is the wider distribution of those images without consent.

The bill proposes to make it an offence to distribute these invasive images in a situation where the distributor knows, or should know, that the person depicted did not consent to the distribution. That is likely to capture, for example, the boyfriend who, unknown to the girlfriend, passes on to his friends the pictures that the girlfriend may have sent him or may have posed for, intending them to be seen only by him. It is not intended that the offence capture third parties who distribute images without having any reason to know that the subject objects to that distribution.

The internet is replete with explicit images, many of which may be captured by classification or other existing laws. There is no intention to create a new offence of distributing such images where the distributor knows nothing of the circumstances in which the image was created and cannot tell whether or not the subject consented to the distribution. With these images, it will be rarely possible to know whether they are distributed with consent or not and this offence is not intended to capture that. I seek leave to have the remainder of the second reading explanation inserted in Hansard without my reading it.

Leave granted.

Instead, what is intended is to capture the person who distributes an image when they know, or they reasonably ought to know, either that the person filmed does not consent to this particular distribution or does not consent to distribution in general. That will most commonly arise where the distributor knows who the subject is or knows the circumstances in which the images were taken.

After extensive consultation with large media organisations, the Bill says that it will be presumed in absence of proof to the contrary that the conduct is for a legitimate public purpose if the organisation concerned (or a person acting on behalf of the organisation) is regularly engaged in broadcasting and publishing activities, that this conduct was part of those activities and was in accordance with prescribed requirements. The last will be done by regulation.

The regulation in question has been drafted and will be provided to any interested member of the Parliament. The requirements are (in summary):

(1) In the case of broadcasting:

(a) the organisation held a licence to broadcast or was authorised by law to broadcast; and

(b) the conduct was in accordance with any legally applicable codes of practice; and

(c) the conduct was in accordance with the organisation's own publicly available privacy policy.

(2) In the case of publishing:

(a) the organisation was a member of the Australian Press Council or otherwise authorised by law to publish; and

(b) the conduct was in accordance with any legally applicable codes of practice; and

(c) the conduct was in accordance with the organisation's own publicly available privacy policy.

In addition, the Bill repeals and re-enacts the existing law against indecent filming. That law covers upskirting and other covert indecent filming. The substance of those offences is unchanged although drafting changes have been made.

These new laws are intended to better protect dignity and privacy against invasions that are made so easy by modern technology.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Summary Offences Act 1953

4—Repeal of section 23AA

This clause consequentially repeals section 23AA (now to be included in proposed Part 5A as section 26D).

5—Insertion of Part 5A

This clause inserts a new Part as follows:

Part 5A—Filming offences

26A—Interpretation

This section defines certain terms used in the proposed new Part. In particular:

a humiliating and degrading act is defined as an assault or other act of violence against the person or an act that reasonable adult members of the community would consider to be humiliating or degrading to that person (but does not include an act that reasonable adult members of the community would consider to cause only minor or moderate embarrassment);

humiliating and degrading filming is filming 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 the act;

invasive images are images of a person engaged in a sexual act of a kind not ordinarily done in public, using a toilet or in a state of undress such that the person's bare genital or anal region is visible (but does not include an image of a person under, or apparently under, the age of 16 years or an image of a person who is in a public place).

26B—Humiliating or degrading filming

This section creates new offences relating to humiliating and degrading filming (with a penalty of imprisonment for 1 year), distribution of images obtained by humiliating and degrading filming (with a penalty of imprisonment for 1 year) and taking part in a humiliating and degrading act and engaging in such filming or distribution (with a penalty of imprisonment for 2 years). The proposed section also sets out defences that are available in relation to a prosecution.

26C—Distribution of invasive image

This section creates an offence of distributing an invasive image (with a penalty of $10,000 or imprisonment for 2 years) and sets out defences to such a charge.

26D—Indecent filming

This section contains the current provisions from section 23AA of the Act.

26E—General provisions

This section contains provisions applicable in relation to all sections in the Part. The section covers issues of relating to what is an effective 'consent' for the purposes of the Part, the non-application of the Part to law enforcement personnel, legal practitioners and medical practitioners, or their agents, acting in certain circumstances and the power of the court, when dealing with an offence against the Part, to order forfeiture of equipment or items.

Debate adjourned on motion of Ms Chapman.