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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-10-16 Daily Xml
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SUMMARY OFFENCES (INDECENT FILMING) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 14 October 2008. Page 281.)

The Hon. J.A. DARLEY (16:04): I indicate my support for this bill. The bill is especially important in criminalising the indecent filming of minors and the circulation of such material. As such, I foreshadow an amendment to increase the penalties for offences committed against minors to send a very clear message to those who are thinking of indecently filming a child that this behaviour will not be tolerated.

I was moved to draft this amendment when I was contacted by a constituent who outlined a very disturbing case that happened recently at a games arcade in a shopping centre. This constituent is the manager of the games arcade where children regularly gather. Security footage shows a man entering the arcade and following an eight year old girl around the arcade before allegedly proceeding to put his mobile telephone under her skirt to presumably take a picture once she had stopped to look at a prize area.

The footage allegedly showed him making two attempts to take the picture. On the second occasion he was caught by a parent. The matter was reported to management and the police, and security footage of the incident was handed to police. Disturbingly, no charges were laid as police found it difficult to identify an offence with which to charge him.

My amendment doubles the penalty provided in the government's bill, and this is unusual in terms of the level of penalties normally found in the Summary Offences Act. However, historically offences against or involving minors in the Summary Offences Act have higher penalties, and I note that offences such as the sale and provision of drug paraphernalia to a minor or the provision of indecent or offensive material attracts a maximum penalty of $20,000.

I also note that the government's second reading explanation outlined an exemption from these laws for private investigators who film for the purpose of catching fraudulent claimants for compensation. I ask the government whether it can give an example of the type of situation that is envisaged, and whether it has consulted with the security industry over this. I also foreshadow that I will move an amendment to get rid of this exemption.

The Hon. D.G.E. HOOD (16:06): I rise briefly to indicate Family First's wholehearted support for this bill. We acknowledge the comments made by the Hon. Mr Lawson in his second reading contribution about whether or not it is necessary, as well as the argument regarding whether this bill is actually covered by legislation; and, whilst we respect his knowledge of these matters, nonetheless we see that it does no harm at all to specifically clarify that this is clearly an offence—and, what is more, lay out the appropriate penalties for the offence. For that reason we will support the bill.

The bill makes indecent filming an offence punishable by a $10,000 fine or imprisonment for two years. I note the comments made by the Hon. Mr Darley a moment ago about doubling those penalties in the case of minors (which I have heard him mention previously), and I can indicate that at this stage we would certainly be favourable to that. I will, of course, need to consult with my colleague, but I indicate our likely support for that as well.

These measures have been on the drawing board for some time. Let us not forget that the state Attorneys-General met back in July 2006 promising to tackle this issue. Victoria legislated against indecent filming some 12 months ago and many other jurisdictions (such as New Zealand and states throughout the United States) have prohibited the practice for a number of years now. However, we are pleased this legislation has come forward; it is better late than never.

We have had a number of incidents, and I understand the catalyst for this national approach was the well-publicised case of Takuya Muto, a Japanese student living in Sydney who pleaded guilty to three separate charges after he was caught filming women showering at a Melbourne backpackers' hotel about two years ago. On the same date he had also taken a so-called 'up skirt' photo of a woman at the Australian Open tennis tournament. Unfortunately, this offence is common in some Japanese subcultures—apparently it is even promoted in some Japanese cartoons. However, we certainly do not want to have it here.

Closer to home, we had an incident where a camera was found in the woman's shower block at Lincoln College a year or two back. Any reasonable person accepts that such filming is unacceptable and, indeed, demeaning. It is particularly insidious given that digital images and video can now be shared so easily online on sites such as YouTube and the like. It will be reassuring to know that we have specific legislation to deal with the next instance of a camera being found inside a bathroom or hotel, or shop change room, and that the uploading of such film will also be an offence.

As I said, we are mindful of the concerns raised by the Hon. Mr Lawson. It does seem that sometimes we have legislation for legislation's sake but in this case I think that, being highly specific, it does no harm at all. One question this bill does not raise is: what happens when legal photos are uploaded to a voyeuristic website without consent? Several years ago photos of Victorian schoolchildren were uploaded to a voyeuristic website. The pictures were of clothed children, but many considered their display on such websites inappropriate. Certainly, in a world that is more digitally connected than ever before we will have to increasingly consider the implications associated with our images and private details being used without consent.

With those few words I indicate Family First support of this legislation. No doubt there will be some robust discussion in the committee stage, to which we look forward.

The Hon. R.P. WORTLEY (16:10): This bill is intended to address some of the antisocial behaviours that have emerged as a consequence of the explosion in small-scale technologies such as mobile phones with camera functions and similar devices. Our individual privacy is something we probably do not think about often unless it is compromised. We are under surveillance much of the time whether or not we are aware of it and whether or not we like it. Cameras follow us down Rundle Mall, observe us at ATMs, in shops, hotels and offices, on buses and trains. These are intrusions on our privacy that we accept because they go to our collective security and wellbeing.

Individual privacy in the context of this bill, though, means the right of an individual to reveal himself or herself at his or her own prerogative. The parameters of privacy differ among people and cultures, but it is pretty clear that most people would resent intrusions on their physical space and solitude that are surreptitious or otherwise uninvited and unwanted.

I am not proposing to go into a great deal of salacious detail about the drilling of holes in bathroom walls or the wearing of mirrors on shoes in order to look up women's dresses. Such topics have been more than amply discussed by some of those opposite. All citizens are entitled to their personal integrity, and that includes the freedom to go about daily business without fear of being illicitly or openly filmed without consent or otherwise harassed in these ways. That is why the government has proposed the measures set out in the bill.

The bill creates new and discrete offences of (1) indecent filming and (2) the distribution of the pictures so obtained. As my colleague the Hon. Paul Holloway said during his second reading explanation, 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. The offence only occurs if the film was taken in circumstances where a reasonable person would expect privacy or would not expect such pictures to be taken. An example of the former circumstance would be a changing room or dressing-room; an example of the latter would be the taking of pictures under a skirt or dress without the subject's knowledge or consent.

The bill provides that the act of making the picture or film will itself be illegal. The test is not whether the image is seen by anyone, rather that it is made. The distribution of the image is a separate offence. Images may be distributed, as we are all aware, by mobile phone, email or upload to the internet. The offence also encompasses agreement to distribute the image—for example, pursuant to a contract to supply. Of course, the defence of consent will apply in an indecent filming offence. Similarly, there is a defence to a distribution charge if the subject consented to the distribution or if the defendant could not reasonably have known that there was no consent.

The bill will not impact on the lawful activities of the police. The Listening and Surveillance Devices Act 1972 makes provision for the issue of warrants should surveillance prove necessary for the detection and prosecution of criminal activity, nor will the bill prevent licensed private investigators from filming private acts in circumstances where fraudulent activity is reasonably suspected, as such footage may be necessary for any subsequent prosecution.

However, these exceptions aside, the bill will ensure that the law is able to recognise technological advancement and the nefarious use of devices that are, generally speaking, of benefit to the community and used for good and proper purposes by the great majority of people. With these few remarks, I commend the bill.

The Hon. M. PARNELL (16:14): The Greens support this bill which creates new offences of indecent filming and distributing the resulting pictures. Certainly, technology is proceeding at a great pace, and I think it is not beyond the realms of possibility to imagine a society where almost every single person has a camera on them all the time, because that is where we are heading with current technology.

We can be fearful of technology; we can also embrace it. This bill deals with one of the downsides of this emerging technology but there are upsides as well. The capacity of every citizen to be able to detect and report crime, for example, is greatly increased with everyone having a mobile phone with a camera on it. But there are huge implications for privacy and the law does need to catch up with technology and it needs to strike an appropriate balance between embracing these new technologies and protecting the privacy of the individual.

As parents, my wife and I regularly talk to our children about the implications of the new technology not just for their present life but for their future. Most of us in this chamber are fortunate that, during our younger years, digital photography did not exist, and we were not, in moments when we might have been behaving less than ideally, subject to all of our friends having cameras and taking photos. We have to tell our children now that they are effectively on public display at all hours of the day or night. Things that might not be too embarrassing now to a 16 year old are going to be embarrassing to a 36 or 46 year old.

The Hon. B.V. Finnigan interjecting:

The Hon. M. PARNELL: The honourable member says, 'Especially if you are running for preselection.' That is exactly right. This material effectively lasts for ever. So, our children are living in a different world from the one we lived in. Those comments are a slight aside, but I want to refer briefly to the Hon. John Darley's amendments. I look forward to hearing the government's response to those amendments, but, at first blush, it seems to make sense to have higher penalties where the victims of these crimes are young people.

Of course, we cannot, through the law, protect people from their own foolishness. However, a bill such as this should go some way towards protecting us and our children from modern day peeping Toms armed with digital cameras. The Greens are pleased to support this bill.

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (16:17): I thank honourable members for their contribution to the debate on this bill. The Hon. Mr Lawson asked some questions about the policy of the bill. First, he asked why the bill does not follow the model of the Victorian and Queensland legislation, which extends to observation as well as filming. The evil at which this bill is aimed is covert filming or photography of people in private situations where they do not expect or consent to be filmed.

The reason for the focus on filming is that, as the honourable member said, the results of filming can appear on the internet and be instantly published to the world; they can be emailed to a large group; they can be distributed to the media; and they can be screened to an unlimited number of the offender's friends, or otherwise made public in permanent form. This is a novel harm that has become possible only in recent years, and it is unclear whether the present law is adequate to deal with it.

Observation, although also offensive, is an evil with far lesser consequences. It was judged that there were some difficulties in creating a specific observation offence. A highly specific offence may be inadequate and a more general offence over-inclusive. The Victorian provision to which the member referred, for example, is specific. It criminalises the observation of a person when that is done by drilling a spy-hole for the purpose but, seemingly, does not criminalise observation through a spy-hole that already exists, for example.

The Queensland provision, on the other hand, is wide and risks capturing some innocent circumstances; for example, if a male inadvertently steps into a women's change room by mistake when there is a woman present, he commits the offence, even though he may immediately retreat. Neither provision was thought to be a suitable model. It is also possible that sections 17 and 17A of the Summary Offences Act, which deal with being on premises without lawful excuse and trespassing on premises in such a way as to interfere with the enjoyment of premises by the occupier, would capture the peeping Tom offender.

The member also asked about the filming of children in a state of undress. He raised the possibility that a person filming on a public beach might take film of small children bathing undressed, and, of course, they can give no consent. No offence is committed in that situation because no reasonable expectation of privacy arises for those children. A person who is undressed in a public place, such as on a beach, is not in a circumstance where he or she reasonably expects privacy because it is obvious that others may see that person. He or she is thus beyond the protection of this measure. Whether to allow small children to bathe naked in public is entirely a decision for their parents. However, if their parents decide to do that, they cannot go to the police, under this measure, if a picture is taken.

The member also referred to snapshots of little children in their bath and, of course, parents commonly do take such snaps. Again, no offence is committed. Small children depend on others to bathe and dress them and so cannot reasonably expect privacy in doing so. So, the precondition for an offence has not arisen. This will change as the child matures, of course, and the offence would catch, say, a father who secretly installs a camera in the family bathroom to film his 14 year old daughter in the shower, as well it should. By that age a child does reasonably expect privacy in the bathroom.

The member expressed surprise that the exemptions in this bill extend not only to police and licensed investigators but also to legal practitioners. This exemption is needed because legal practitioners may have to distribute an indecent film as part of a court case, and it is not intended that any offence is committed in that situation.

The member also spoke about the situation where a doctor needs to take pictures of a person's body for medical or forensic medical purposes. An example might be the case where a person has been sexually assaulted and it is necessary to collect evidence of trauma to the genital region for a prosecution. Again, this would not be an offence under the bill, because indecent filming in the form of photographing a person's private region is committed only 'in circumstances where the person would not expect that the person's private region might be filmed'. In such a case, the filming is quite overt and the patient expects that it will occur.

Other indecent filming, such as photographing a person in a state of undress, is an offence only if the person would reasonably expect to be afforded privacy. In submitting to medical examination and photography, the person waives privacy to that extent, so there is no offence. It is otherwise, of course, if the person is filmed secretly, so that a doctor who somehow manages to take covert photographs of an undressed patient when the patient has no reasonable expectation that this will occur would commit an offence. I again thank honourable members for their expressions of support for the principle of the bill, and I will address Mr Darley's amendments during the committee stage.

Bill read a second time.

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. J.A. DARLEY: I move:

Page 2, line 15 [clause 4, inserted section 23AA(1)]—

Delete all words in this line and substitute:

Maximum penalty:

(a) if the person filmed was a minor—$20,000 or imprisonment for four years;

(b) in any other case—$10,000 or imprisonment for two years.

The amendment increases the penalty for the offence of indecent filming if the person filmed is a minor. With concerns about child pornography and the exploitation of children, I think a higher penalty for filming of children is warranted. I realise that these offences will reside in the Summary Offences Act, which usually covers offences with lesser penalties. However, I am of the view that the seriousness of filming of a minor warrants a higher penalty.

The Hon. P. HOLLOWAY: This amendment will double the penalty where the person filmed was a minor. Members will notice that, in those cases, the offence would become a minor indictable offence. That means that the person charged can elect to be tried by a jury in the District Court. This is a much more expensive procedure for the public than a summary trial, but it is the accused's right. I am advised that it is not necessarily problematic that an offence which in one circumstance is summary and in another circumstance is indictable can appear in the Summary Offences Act. Members will note that the amendment speaks only of the situation where the person filmed is a minor. It is not impossible that the same film could include both adults and minors. Presumably in that case the higher penalty would apply. The government supports this amendment.

The Hon. D.G.E. HOOD: Family First supports the amendment as well. We live in an age where child protection is increasingly important, if it was ever less important. The weakness of the amendment is that it raises the maximum penalty and no-one in our courts ever gets the maximum penalty; it is a theoretical penalty—they always are. I have done extensive research and, other than where the penalty they receive is mandatory, in other than those cases, I am yet to find a case where somebody has received a maximum penalty. Nonetheless, it serves to send a signal to the judges that it is a very serious offence, and as a result of that it receives Family First support.

The Hon. R.D. LAWSON: I was not aware of this amendment and it has not been to the Liberal Party room. Personally the concern I have about it is that, whilst it is offensive for these offences to be committed against young children, many would, I imagine—and based on experience so far—be committed by young people. To impose upon young people, many of whom may be engaged in pranks at school functions and the like, and to subject them to the possibility of being prosecuted for an indictable offence and the whole panoply of the law, seems, at first blush, unduly stringent.

I certainly agree with the sentiment behind the amendment that the proverbial 'dirty old man' should be appropriately punished. Even with the maximum penalty of $20,000 or two years, there would appear to be quite an appropriate range for a sentencing tribunal to impose a heavy penalty. Given that the government, which considered the matter, has consented to the proposal and as Family First has indicated support, I indicate that the Liberal Party will not oppose the amendment.

The Hon. M. PARNELL: The Greens support the amendment, but I will comment briefly on the observations of the Hons Dennis Hood and Robert Lawson. The Hon. Robert Lawson is correct in that the perpetrator will in many cases be another young person, and that is why I do not share the Hon. Dennis Hood's concerns about people not getting the maximum penalty as judges would be able to take into account the fact that the perpetrator was younger, but having a high maximum penalty sends the right signal.

Members would recall the case recently where a teenager threw a wild party when his parents were away and gained some notoriety in the media, for his lack of fashion sense as much as anything else. People may recall that he was eventually nabbed by the police for child pornography as a result of what was on his mobile phone. I understand that it was a fairly consensual, if alcohol fuelled, situation he had been filming, but it was other teenagers in a stage of undress. Teenagers are likely to be caught by this provision, and it may be regarded as an unfair penalty to suffer for four years, but I am happy to leave it to the discretion of our judges as it sends the right message to protect our children to a greater extent than we protect adults. I support the amendment.

The Hon. D.G.E. HOOD: I do not want to prolong the proceedings; I will just clarify my comments. When I said that maximum penalties were largely irrelevant, I was referring to a whole range of offences and not this particular offence. I think the comment made by the Hon. Mr Parnell is quite correct, whereby the one benefit, if you like, of having higher maximum penalties is that it sends a signal to the particular judge that this is regarded as a serious matter by the parliament and should be treated as such.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Page 2, lines 20 to 25—Delete paragraph (b)

This amendment seeks to get rid of the offence for indecent filming by a licensed investigation agent. Given the definitions of 'indecent filming' and 'private act' in the bill, I can think of no possible situation for a private investigator to be filming people in such a manner.

The Hon. P. HOLLOWAY: At present the government does not support this amendment. It would remove the protection of the bill from licensed private investigators if they film people engaged in private acts. There are two competing public interests here. On the one hand, there is the public interest in protection of privacy. In general, we do not want people being covertly filmed in their bathrooms and bedrooms without their consent. On the other hand, there is the public interest in detecting fraud. It is well know that dishonest persons sometimes make fraudulent claims for compensation by exaggerating or fabricating medical conditions. Those claims, if they are not detected, cost the public through increases in insurance premiums and, make no mistake, if a fraudulent claim is not detected, we all pay for it.

Early on in our first term of government we heard in no uncertain terms from the public about the problems that arise for everyone when insurance premiums become unaffordable, so there is a public interest in affordable insurance. Such claims are also a criminal offence. Fraud is a crime and crime costs the community in many ways, including the cost of the harm done and the cost of detection and prosecution.

The bill has been designed not to cut across law enforcement efforts even where they infringe privacy. At present it is quite lawful for a defendant who suspects that a claim against him or her may be fraudulent to engage a licensed investigation agent to collect evidence. Commonly that includes filming or photographs, although equally it could include the investigator's own testimony.

The benefit of relevant film is that it leaves the court in no doubt about what the claimant's real physical capabilities are. The defendant, in engaging the investigator, is protecting his or her own interests, of course, but they are also assisting the public because the detection of crime is in the public interest. In framing this bill, the government had to decide whether to prevent a licensed investigator from taking film that might include private acts. On balance, we decided not to do that for good reasons.

First, clever fraudsters will take care not to behave in public in ways that are inconsistent with the claimed injuries. If they are going to let their guard down, it will be in circumstances where they think that they are unobserved. If we are going to catch these people, it may sometimes have to be in a private situation. If the bill made such filming unlawful, fraudsters would have a better chance of getting away with their crimes to the detriment of everyone.

Secondly, investigators are regulated by statute, that is, the Security and Investigation Agents Act 1995. They are liable to discipline by the District Court. Anyone can make a complaint about an investigator if there is evidence that he or she has acted unlawfully, improperly, negligently or unfairly. The investigator is at risk of sanctions, including suspension or loss of licence. Thus the law does not allow investigators carte blanche. They must act properly and fairly, and this was judged to be sufficient safeguard for the public against misuse of powers.

The bill does not propose any change to the current laws about trespass or about stalking and does not authorise an investigation agent to do anything that he cannot do now. Investigators have been free to take this type of film hitherto, and the bill would not change the law on this point.

Further, the bill does not permit an investigation agent to misuse the film. If he or she distributes the film, other than for the purposes of the claim (for example, if he or she shows it to friends or uploads it onto the internet), the distribution offence is committed and the agent is liable both to the criminal penalty and the disciplinary action. The film can only be taken and can only be distributed for purposes connected with a claim. To that extent the law imposes a new restraint on private investigators.

The Hon. R.D. LAWSON: I ask the Hon. Mr Darley to indicate whether this amendment was prompted by recommendations from any particular organisation and whether he is aware of any particular problems that have arisen in the past in relation to the present capacity of licensed investigation agents to film in circumstances where an offence under this act would otherwise be committed.

The Hon. J.A. DARLEY: No, I am not aware of any particular situation. It was just the thought that, in view of the definition of 'indecent filming', there was no reasonable situation where a private investigator could undertake this activity.

The Hon. R.D. LAWSON: In that case, I indicate that we do not support the amendment.

The Hon. M. PARNELL: The Greens do not support the amendment, either, but we acknowledge that the Hon. John Darley has sought to test this provision. I am satisfied with the minister's answer that distribution outside the appropriate channels in connection with the claim for compensation will still be an offence. Most of us are familiar with claims for fraud where the film footage is the allegedly injured person kicking around a soccer ball or bowling a fast delivery in a game of backyard cricket. But it is conceivable that there are other acts that they claim they are unable to engage in that might be of a more personal nature and a film might indicate that, in fact, it was a fraudulent claim. It is uncomfortable to think of private investigators creeping up to bedroom windows and poking cameras through venetian blinds but, as the minister said, we have a regime for the regulation of security and investigation agents and, in this instance, I am happy to trust that the mechanisms under that act will properly regulate investigators.

Amendment negatived.

The Hon. J.A. DARLEY: I move:

Page 3, line 3—Delete all words in this line and substitute:

Maximum penalty:

(a) if the person filmed was a minor—$20,000 or imprisonment for 4 years;

(b) in any other case—$10,000 or imprisonment for 2 years.

This follows from my amendment No. 1 to increase penalties where the film is of a minor.

The Hon. P. HOLLOWAY: At present, the government supports this amendment.

The Hon. R.D. LAWSON: We also support the amendment, although I think an argument could be made—and perhaps should have been made a little earlier—that it is more offensive and more deserving of criminal sanction to distribute material than it is, in my view, to take it in the first place. There might be innocent prankery or juvenile prankery about snapping these indecent photographs, but there is a great deal more culpability involved if one then seeks to distribute it over the internet. We will have the same penalty in both cases but, as the Hon. Mark Parnell mentioned in an earlier contribution, the courts do have discretion in relation to this and the range of penalties is wide enough for an appropriate penalty to be fashioned for any particular offence. So we support this amendment.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Page 3, lines 11 to 17—Delete paragraph (c)

This amendment has the same effect as my amendment No. 2 in relation to the offence of distributing an indecent film or image, prohibiting the exemption for private investigators who are caught filming.

The Hon. P. HOLLOWAY: The government opposes this amendment, for the same reasons that I gave in speaking on Mr Darley's second amendment.

The Hon. R.D. LAWSON: I indicate that Liberal members do not support this amendment, for reasons previously given.

Amendment negatived; clause as amended passed.

Title passed.

Bill reported with amendments.

Third Reading

Bill read a third time and passed.


At 16:42 the council adjourned until 28 October 2008 at 14:15.


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