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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-10-14 Daily Xml
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SUMMARY OFFENCES (INDECENT FILMING) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 22 September 2008. Page 136.)

The Hon. R.D. LAWSON (16:18): This bill is designed to address the obnoxious but catchily named practices of upskirting and down-blousing. There is no doubt that the practice of sneakily photographing people's private parts is thoroughly offensive and is deserving of criminal sanction. The activities of voyeurs who derive pleasure from viewing others has been reviled for centuries. The eponymous Peeping Tom dates from the tenth century ride through Coventry of Lady Godiva. Legend tells us that Tom, the Coventry tailor, was struck blind when he peeped through the hole he had bored in his shutter to view the passing maiden. Surely one would have thought that the law of the land had addressed this issue before now.

Actually, there is an offence of offensive behaviour which possibly covers the activities that this bill seeks to punish. There is a lot to be said for general offences which are expressed very broadly and which can be applied to a wide variety of factual situations rather than narrowly defining an offence like the present. For example, the present offence is indecent filming, but simply putting a mirror on the toe of one's shoes and looking up the skirts of women is not actually covered by this bill, and that raises an interesting issue. However, what we have sought to do here is narrowly describe a particular activity and make it punishable.

I notice, for example, that an offence was reported in January 2007, where a student in Melbourne was caught filming women showering in a back packers' hostel and was charged with offensive behaviour, although perhaps the extent of that law was not fully explored in the courts because the person concerned pleaded guilty and was sentenced to a term of imprisonment.

There was a similar incident at Lincoln College, North Adelaide, in November 2004. At that time the Attorney-General was quoted as saying that the incident was 'sickening and perverted' and he claimed that South Australia did not then have laws in place to prosecute such actions. Notwithstanding the fact that the Attorney-General in 2004 found the practice sickening and perverting, it is now 2008 and we are finally dealing with this matter. As I understand it, the incident at Lincoln College did not result in the apprehension of any offender.

We are all aware of the technical capacity of mobile phones to take photographs. Small cameras, mini or micro cameras, have been around for a long time and there has been a capacity for people to surreptitiously photograph others, no doubt in compromising circumstances. We all know stories of private investigators and the like. The change that has occurred is that through the use of mobile phones these devices have become more readily available, more easily carried and, because they have another legitimate use, it is difficult to apprehend potential offenders. One excuse the Attorney might have for not proceeding with the introduction of this bill as hastily as his outrage in 2004 might have warranted was the fact that the Standing Committee of Attorneys-General produced in August 2005 a discussion paper entitled 'Unauthorised photographs on the internet and ancillary privacy issues'.

That discussion paper canvassed not only the existence of cameras in mobile phones but also the widespread use of the internet where what once might have been regarded as an offence which had a fairly narrow focus—namely, the peeping Tom type of offence—became an offence where, via the internet, the peeping Tom might be able to distribute across the world, and in rapid time, images illicitly obtained.

Of course, we have to understand also that there are now closed circuit television cameras which are used very widely in public spaces and places—on roads, for security, and for other purposes—and people are being photographed in public places now all the time and in circumstances where they do not know that they are being photographed. So the use of technology is now widespread, and it does have the capacity to make what was once a serious offence, but not a gravely serious offence, an offence that does have other ramifications so that it becomes more serious.

Not surprisingly, in response to the discussion paper issued by the Standing Committee of Attorneys-General, the media interests were opposed to widespread extension of the criminal law in this area. Clearly, it is in the interests of the media to photograph people in all sorts of situations, many of which will be compromising, especially if the person involved happens to be a celebrity. The whole paparazzi industry depends upon the capacity of photographers with telescopic lenses to photograph film stars and princesses in various states of undress on Mediterranean yachts and the like. Needless to say, those people in the media (proprietors and publishers) were keen not to unduly restrict the capacity of those publications to publish and profit from photographs of that kind.

The bill we have before us is very narrowly drawn because it does not actually address the issue of the person who drills a hole in the back wall of a women's shower block and looks through it. It is only if he takes a photograph that he commits an offence against this particular provision. In both Queensland and Victoria similar legislation has been introduced, but it has a wider application, which can best be illustrated if I read section 227A of the Queensland Criminal Code, which was inserted in December 2005. It provides:

(1) A person who observes or visually records another person, in circumstances where a reasonable adult would expect to be afforded privacy—

(a) without the other person's consent; and

(b) when the other person—

(i) is in a private place; or

(ii) is engaging in a private act—

commits an offence. In other words, they have not only included recording by photographing or other means but, also, observing.

Likewise, in the Victorian legislation, which is called the Summary Offences Amendment (Upskirting) Bill 2007, what is rendered criminal is in new section 41A (that is, the observation of the genital or anal region of a person with the aid of a device) and new section 41B (visually capturing those regions). The method by which these activities might be conducted is defined to include the use of, for example, a mirror or a tool to make an aperture, a ladder or the like. One can readily appreciate circumstances in which some pervert might put a mirror under a staircase for the purpose of looking up a woman's skirt or down their blouse but, curiously enough, our legislation is so refined that it covers only the particular situation of filming.

It reminds me a little of the time when there were a number of instances, and a great deal of public outrage, when rocks were thrown at passing vehicles, especially on the Southern Expressway, and there is one very tragic case where someone was very severely injured by that occurrence. So the government introduced a bill designed to prevent that. In fact, it was designed to criminalise, with a very tough penalty, and to make no apology for the tough penalty. But the bill came in on the basis that it was an offence to throw a projectile at a moving vehicle. It was pointed out: but what happens if the vehicle happens to be stationary at the time because of a traffic jam, or the like? The response was, 'That's a good idea. We had better include that.' So we made it not only a moving vehicle but also a stationary vehicle. I envisage entirely the same sort of situation here where we have so finely defined this particular offence that we will be coming back and revisiting the circumstances for its application in the future.

I believe that one area in which we ought to have addressed the ill that is aimed at by this bill is that of observing by some artificial means—be it by a mirror, boring a hole in a wall, or the like.

The first question to which I seek a response from the minister is: why did the government not adopt the same framework (which is a rather more extended framework) that has been adopted in both Queensland and Victoria?

I move now to briefly comment upon the terms of this bill. The first principal clause will insert a new section 23AA(1) which will make it an offence to engage in indecent filming—that is, the offence of engaging in the filming itself. There is a severe penalty of $10,000 or imprisonment for two years, which is the same penalty that appears in the legislation of other states. The second offence is contained in subsection (3) of the same section—a person must not distribute a moving or still picture obtained by indecent filming—and the penalty is the same. Indecent filming is defined as:

Filming another person in a state of undress in circumstances where a reasonable person would expect to be accorded privacy.

It means filming another person engaged in a private act in circumstances in which a reasonable person would expect to be afforded privacy. The third offence is filming another person's private region in circumstances in which a reasonable person would not expect that the person's private region might be filmed. As I said, these are serious offences carrying a maximum penalty of $10,000 or imprisonment for two years.

I am a little concerned (and seek the minister's comment) about the proposition that a person standing on a jetty and sweeping a movie camera along the beach (where there may be, for example, small children who have no clothes on at all who are paddling in the shallows with their parents) could film a person in a state of undress in circumstances where the persons filmed cannot give consent, because subsection (5) provides that an apparent consent, namely the consent apparent from being on the beach, is not effective if it is given by a person under the age of 16 years. So, an infant, or anybody under the age of 16, cannot give consent.

Clearly, if a person is swimming at Maslin's Beach (or some other spot where people swim without their clothes on in a state of undress) such a person could have no reasonable expectation of being afforded privacy in those circumstances—although even that might be entirely debatable. If you are a nude swimmer and you go to Maslin's Beach, I do not imagine you really expect that your body parts might be displayed over the Internet and across the world in five minutes.

However, I am rather more concerned about the case of a person who might, quite innocently, be filming young children on the beach or even taking a snapshot of children in the bath, which has, until now, been regarded as an innocent enough occurrence—although, increasingly, even that practice is being questioned. I do not think we have yet reached the stage where, if somebody takes a snapshot of their own child in the bath, they will actually be committing an offence. It is no excuse to say, 'Well, who would ever be prosecuted in those circumstances?' If we pass a law which says that certain conduct is illegal then people will be committing illegal acts. We make their innocent acts illegal, even though one would hope that reasonable policing would never result in a charge. I do seek some elucidation from the government about how it expects that issues about photographing children in a state of undress will be addressed under this legislation.

The legislation contains a series of exemptions which are appropriate. For example, licensed investigation agents who are taking films in connection with obtaining evidence in connection with compensation claims and the like, and law enforcement personnel acting in the course of law enforcement or legal proceedings do not commit an offence. I am a little surprised that the exemption includes that legal practitioners or their agents acting in the course of law enforcement or legal proceedings cannot commit an offence under this section.

Of course, in the old days, private investigators, acting on the instructions of lawyers, would film people engaged in matrimonial proceedings. Many of those films were taken of people in wholly compromising circumstances committing acts that they would regard as being committed in private. It is a long time past since that type of activity was widespread although, no doubt, it might still occur in some cases.

Concerns might legitimately be raised about films or photographs taken by medical practitioners in the course of medical examinations for legitimate medical purposes. As I read the bill, they are not specifically mentioned. The protection in that particular case is that the consent of the person must have been obtained. So, if a person consents to being photographed, and is aware that they are being photographed—and the photograph might actually include part of their genital or anal regions—no offence is committed by the doctor.

I do not actually know the extent of the consent sought from patients in these circumstances. Ordinarily, the head or the face of the person is not actually depicted in medical photographs that I, and I imagine most other members, have seen. However, I inquire whether it is common for doctors to actually seek permission for the distribution of material of this kind. I imagine that, if a medical practitioner said to me that he wished to take a photograph of a skin blemish on my inner thigh, I would readily consent. Whether I would readily consent to it being distributed throughout the world on the Internet is another matter. I suspect that I would not even be asked.

With those comments, I indicate that the opposition will be supporting the passage of the bill. It goes some way, but it does not go far enough. We do not, however, propose to delay the passage of the bill—it is already long overdue—by seeking to have amendments included, extending its operation in the way that it has been extended in some other jurisdictions.

Debate adjourned on motion of Hon. J. Gazzola.

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