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House of Assembly - Fifty-First Parliament, Second Session (51-2)
2008-07-23 Daily Xml
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SUMMARY OFFENCES (INDECENT FILMING) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 22 July 2008. Page 3900.)

Dr MCFETRIDGE (Morphett) (12:22): The bill is supported by the opposition, and I for one have been pushing for this legislation now for over four years. On 24 March 2004, I issued a press release, entitled 'Peeping Tom photography on the rise', because I had walked out of my office in Glenelg in Nile Street and gone to the Coles supermarket. When I came out, a bloke had a mobile phone and was taking photographs. I looked to see what he was photographing, and there was a young lady. It was summer, and she was not wearing a whole lot of clothing at the time, and this fellow was taking photographs of her. I fronted him and asked whether he knew the girl, but he just turned around and took off.

I spoke to the young lady (we could still see the guy) and asked her whether she knew him. She said no, and I told her that he had been taking photographs of her. She was really upset and offended, and this brought home the issue to me of these perverts out there who are now doing things that are just totally despicable.

The bottom line is that nowadays, with the advances in modern technology, you really have a television studio in your hand with a mobile camera. You can take photographs and videos, send them anywhere you like around the world and distribute them to millions of people. Recently, I spoke to the principal of one of the high schools near my electorate, where a student had been photographed in the toilet and it had been put on YouTube.

The student who took the photograph realised that it had been a stupid thing to do and took it off the website within a matter of minutes, but there had already been something like 80,000 hits on that section of the site, which I find absolutely mind-blowing. That is the power of the internet today, that is the modern technology we are dealing with and that is the reason we need to bring in this sort of legislation: to make sure that people who are acting indecently, stupidly or criminally are dealt with—and dealt with severely.

What I would like to see with this legislation is those people being dealt with not only by being fined or even gaoled (but certainly fined) but also by their equipment being confiscated because, if they do not have the equipment, or they have to buy further equipment, that may be a further reminder of the stupidity of their actions.

Probably the most recently publicised event of this sort in Australia was at the Australian Open Tennis Championships, when two men were arrested and charged with offensive behaviour (because that is all they could be charged with) for filming up women's skirts. This sort of behaviour is totally unacceptable, so we strongly support the legislation we are debating today. Why people are motivated to do this sort of thing only they know, in their own tiny minds. I just cannot understand how people would get any sort of gratification from this type of behaviour.

Upskirting or down-blousing videoing is just bizarre, and it should be condemned by everyone in modern society. This legislation will not interfere with legitimate videoing or photography undertaken by law-abiding citizens for legal or investigative purposes (such as WorkCover, or for the police, or some other reason); that is in a different realm to the peeping Tom or the perverted filming or photography that we are aiming at in this legislation. Police often need to be able to undertake covert surveillance, but it is for legitimate reasons.

This legislation is well overdue. In some of the legislation I have looked at from America and other places overseas (and reports go way back to the mid-nineties), there have been serious cases brought involving not just photographs up women's dresses, and things like that, but invasion into homes and putting secret cameras in dressing rooms, bathrooms and bedrooms. It has been a real invasion of privacy. As one victim described it, 'It is like being raped.' The insecurity and invasion of these people's privacy just cannot be quantified.

So I welcome this legislation, and ask the government to make sure it has covered all the bases and that people's equipment will also be confiscated, because we need to ensure that a real message is sent to people who act like this. This is something that must be condemned, and by supporting the legislation I, and members of the opposition, do condemn it.

The Hon. K.O. FOLEY (Port Adelaide—Deputy Premier, Treasurer, Minister for Industry and Trade, Minister for Federal/State Relations) (12:27): On behalf of the Attorney-General, I would like to share my comments on this particular piece of legislation. I assume that it is not retrospective? Good, because—

An honourable member interjecting:

The Hon. K.O. FOLEY: No; I am quite okay. I wonder whether that would cover the fact that I took a photo of the member for MacKillop when he was sitting over here on his own supporting right of entry into the workplace.

The DEPUTY SPEAKER: Order! I remind the Treasurer that it is against standing orders to film anyone in the chamber at any time. So I would rather not hear anything about it.

The Hon. K.O. FOLEY: What is the penalty?

Members interjecting:

The Hon. K.O. FOLEY: It happened a long time ago. The Attorney has come back in; I am just speaking as a member and it is probably best that the Attorney wind this debate up, because already the indications are that I will probably make a fool of myself.

The Hon. M.J. Atkinson interjecting:

The Hon. K.O. FOLEY: Yes; this is my contribution to the second reading.

An honourable member interjecting:

The Hon. K.O. FOLEY: I cannot be accused of ever being guilty of that.

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (12:29): When we were debating this yesterday, the member for Heysen was taking the point that private investigators investigating possible infidelity on behalf of one partner would be able to violate these provisions, under the exemption. That is correct.

The private investigation agent is only protected if the filming is done 'in the course of obtaining evidence in connection with a claim for compensation, damages, a payment under a contract or some other benefit'. Adultery, so far as I understand, does not give rise to a claim for damages or any other benefit, so the defence is not available to the private investigation agent. The investigator commits an offence. I thank members for dealing with the bill so swiftly and commend it to the house.

Bill read a second time.

Third Reading

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (12:31): I move:

That this bill be now read a third time.

Mrs REDMOND (Heysen) (12:31): I want to make a brief contribution on the third reading, mostly to cover a couple of things that I forgot to mention yesterday, and also to come back to this matter that the Attorney just responded to at the close of the second reading. It still seems to me that there is the potential if, for instance, a couple had entered into a prenuptial agreement—which is becoming increasingly common—that that prenuptial agreement could give rise to a claim in damages or some contractual claim or other benefit which would therefore spark the exemption provision.

I invite the Attorney to consider that a little further between now and the other place when it eventually reaches there over the next few weeks, because it does seem to me that on my reading of it, there is the potential for someone who is registered as a private investigator to claim the benefit of the exemption in the legislation, and I am sure that is not what is intended, that registered private investigators are able to go around and take photos of people involved in—

The Hon. M.J. Atkinson: A private act.

Mrs REDMOND: A very private act. I invite the Attorney to consider that between this and the other place.

There were two other issues that I wanted to raise during the debate. I apologise that I forgot to do so, and I do not expect that the Attorney necessarily will be able to answer these, but they are matters for our contemplation between here and the other place. In terms of the definition, the legislation essentially provides that people are entitled to an expectation of privacy, and the breach and the offence under this legislation occurs where someone takes a photo in circumstances where a person would reasonably expect to have privacy.

In thinking about this legislation, it occurred to me that we have, famously, in our state, a beach called Maslin Beach where people are at liberty to go about in a state of undress, and one might argue (reasonably, perhaps) that, if you go to Maslin Beach and you are in a state of undress, you thereby waive your expectation and right to privacy. I wonder whether that is really the case. I wonder whether or not people going to Maslin Beach and choosing to enjoy the wonders of nature in a very natural state are thereby necessarily saying that it is all right to be photographed in that state.

I suspect that quite a number of people who might choose to go to Maslins and undress because they like to be at one with nature (or whatever the reason) are not necessarily as a result of making that decision comfortable with the idea that they are thereby giving up their right to an expectation of privacy in not being photographed or filmed and having that photograph or film transmitted to other people. I invite the Attorney to apply some consideration to that also between the houses.

That leads on to the last point that I want to raise; that is, whether there is a different expectation of privacy for people in public life. We have had paparazzi surrounding famous people like Nicole Kidman in Australia. There are many more paparazzi in other countries. Will there be circumstances where someone taking a photograph of a person engaged in what would otherwise be a private act could argue, 'Well, this person is in public life,' and will the barrier for assessing their right to privacy be different from the expectation of the average person in the community?

I expect that the answer to that is that we will have to wait and see what the courts decide, because that is the way the legislation is structured. That question will be one for the courts on the facts of each case, and we will have to wait for the build-up of a body of law. It is, nevertheless, something that I think we need to at least contemplate and maybe express a view about in relation to this debate, because I think that we will increasingly see in our society people taking photos of others who, although they are in public life, might not necessarily expect to have to give up the right to privacy—particularly family members of those in public life.

As I said, whilst I do not necessarily think that there is a simple answer, I expect that the courts will have to resolve that. Nevertheless, it is something that I think we should at least be contemplating in relation to this type of legislation. So, with those few words, that now completes the contribution I should have completed yesterday during the second reading debate.

Mr PENGILLY (Finniss) (12:37): I have found this to be a most interesting debate, and the issues are very relevant to life in 2008. I struggle to know where all this will finish. I totally support this bilI, but I wonder whether it will be adequate to stop this sort of nonsense in five or 10 years, or even in 12 months. Being the father of three children—albeit they are now all in their 20s—and knowing the nonsense that goes on in public places and the impact of drugs and alcohol, and anything else that might be around, I think it is a major step in the right direction, and I support it. What takes place in public places is a matter of great concern to me. If this is a small step towards exposing these people and bringing them to account, it is good. I think it is most appropriate and, as I have said, the contributions have been most interesting.

Unfortunately, as mere mortals, we simply cannot keep up with technology, even though it has been brought on by us. I think it is far in advance of anything that we expected even five or 10 years ago. I think this is good legislation, and I cannot see that there would be any impediment to it in another place. I noticed that the Attorney took note of the comments and the additional points raised by the member for Heysen. We will wait with interest to see whether any other pertinent points are brought up regarding this measure when it goes to the other place. I support the bill.

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (12:39): In reply to the member for Heysen, if the prenuptial agreement provides that either party is contractually entitled to damages for the other party's adultery, she is right: the exemption will apply. I have never heard of such a clause in a prenuptial agreement.

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: The member for Heysen says that she has heard of them in the United States of America. I would say they would be pretty rare in Australia, but things could change and, if they did, we might have to revisit that clause.

At Maslin Beach people reasonably expect that others can or may see them. The reasoning in the bill is that a reasonable person would not expect privacy at Maslin Beach and, therefore, no offence is committed if they are photographed. The member for Heysen raises an interesting point in that people who are skinny-dipping at Maslin Beach are content to be seen by other skinny-dippers. I seem to recall what the member for Heysen calls voyeurs coming to Maslin Beach to look at bathers. The voyeurs are, of course, fully clothed, and it may be that the bathers are not in favour of that. Whilst they are content to be seen by other skinny-dippers, they are not content to have their image recorded and uploaded on the Internet. That is something I will give some thought to.

The third point is that, under the bill, celebrities are treated the same way as all others. We do not have a lower threshold for celebrities at which privacy is lost. One may have gained the impression from the debate that everyone is in favour of the bill. Let me assure you that The Advertiser is not in favour of it in its current version, nor is the ABC (Australian Broadcasting Corporation).

No doubt representations will be made between the houses to try to persuade the government, the opposition and minor parties to abandon the proposal or modify it. I recall, when I was first a member of this place (about 1990-91), that this house passed a law which would have given citizens a modest right to privacy. However, by the time it got to the upper house it was as dead as a proposal could possibly be. We will see how this debate progresses. I thank the member for Heysen for her constructive participation.

Bill read a third time and passed.


[Sitting suspended from 12:43 to 14:00]


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