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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-02-21 Daily Xml
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SUMMARY OFFENCES (FILMING OFFENCES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 7 February 2013.)

Members interjecting:

The Hon. S.G. WADE (15:52): I regret that the Leader of the Government is yet to respect the diversity in this chamber—

The PRESIDENT: Do not worry about regretting and do not worry—

The Hon. S.G. WADE: I think it is the height of bullying to reflect on a member who had to leave the chamber for other reasons.

The PRESIDENT: The Hon. Mr Wade, you have the call.

The Hon. S.G. WADE: I rise to speak to the Summary Offences (Filming Offences) Amendment Bill 2012. This bill came about as a result of the government's view that the current law does not adequately deal with the filming and broadcasting of assaults and other criminal conduct where the major result is the pictorial humiliation of a victim. Some of the behaviour may already be caught by existing criminal offences, such as the law of conspiracy, but the government proposes that the bill would strengthen the law.

At the time of the original announcement of the bill in 2012, my understanding was that the key impetus for the proposal was the assault on a 14-year-old boy at Craigmore High School on Monday 7 February 2011. Students at the school assaulted the boy, filmed the assault, and placed it on YouTube.

The Attorney-General tabled the Summary Offences (Filming Offences) Amendment Bill 2012 in the House of Assembly on 17 October 2012. The bill is based on two previous draft bills which were released for consultation on 24 November 2011 and 4 April 2012 respectively. The government has not advised on the views of organisations consulted, and is yet to provide copies of the consultation submissions as requested. This council has, time and time again, indicated that consultation is welcome, but consultation of the community in relation to public bills is a consultation as much with the parliament as with the government.

The Attorney's comments at the time, and in the media, suggested that the proposed law would focus on those 'who are involved in deliberately setting up these events', who 'act together in order to humiliate and degrade another person and place that film on a platform such as YouTube or Facebook', who have 'advance knowledge of the incident', or 'act in concert with the assailant'. The offences contained in the bill seem to be written more broadly. There are a range of defences in the bill.

I want to make it clear that the opposition supports the government in seeking to protect people against behaviour, when it is clearly undertaken to try to deliberately humiliate and degrade somebody and where it is not caught by our current set of laws, but we are keen to make sure that any new laws are focused. We consider that these matters are important matters. They are matters of balance and the appropriateness of the balance struck in this bill merits further consideration.

For example, this bill significantly shifts the onus of proof and, given that we are talking about the criminal law, we believe that needs further consideration. It raises complex issues of consent. It risks criminalising everyday or thoughtless behaviour. We are concerned to make sure that it does not inappropriately stifle political and social accountability. For example, we also believe that we need to give further thought to the interplay of subjective and objective elements in relation to the definition of 'humiliating or degrading'. The government asserts that the definition is objective but subjective characteristics of the person involved inevitably intrude.

In the opposition's view, there is a range of issues which this bill raises which deserve greater scrutiny and discussion. It was our view that the bill would benefit from being referred to a select committee. In relation to the Surveillance Devices Bill, the government indicated that they preferred that bill to go to the Legislative Review Committee. In the context of that view of the government, we also propose that this bill be referred to the Legislative Review Committee. I had filed an amendment to the motion we considered earlier to refer the filming offences bill to the Legislative Review Committee, to be considered in concert with the Surveillance Devices Bill.

The bill clearly raises issues in terms of citizens' right to privacy, and they were matters that are a central focus of the surveillance devices reference. Both the member for Fisher and the Attorney-General in the other place referred to that aspect of the bill in their consideration of the filming offences bill to the point that the Attorney-General referred to the Law Reform Institute and the fact that it is looking at the issue of a statutory tort of privacy in South Australia as we speak.

The opposition is still of the view that both bills should be referred in a linked way to the Legislative Review Committee, but members have indicated to me that, whilst they are open to a referral, they would seek both more detail on the opposition's concern and, for that matter, an opportunity for the government to provide a response. It has been suggested that the best forum for that is in the committee consideration of this bill. If, after the committee consideration of the bill, the house considers that further consideration by a parliamentary committee would assist, then a referral could be considered at that point.

I would just like to reflect on the parallels between this bill and the surveillance bill. The Leader of the Government, in supporting the motion in relation to the surveillance bill, indicated that it was better to have contested amendments considered in a parliamentary committee. I respected that this is a judgement bill by bill, and the government is not of that view, but I would just make the point that there was no suggestion in the original agreement by the government to refer the surveillance bill to the Legislative Review Committee or, for that matter, in the minister's comments today, that that referral was blocking. If it was, the government is being complicit in blocking its own bill.

So, when the house does come to consider, at the end of the committee stage, whether or not a referral is appropriate, it would certainly not be a matter of blocking this bill. The opposition seeks to address the law and make sure the law is as good as it can be. The opposition supports the course of action suggested by other members of the chamber and understands that the government does also. In that context, I support the second reading of the bill.

The Hon. T.A. FRANKS (16:00): I rise very briefly on behalf of the Greens to indicate our position on this Summary Offences (Filming Offences) Amendment Bill. The Greens are supportive of the intent of this bill and we will certainly be supporting the second reading stage of this bill. It addresses emerging antisocial behaviour that utilises new technologies and it also adds to the Summary Offences Act a new part 5A dealing with filming offences. It very much addresses two main areas of concern. One might be called the invasion of dignity and the second the invasion of privacy.

The bill, as the Hon. Stephen Wade indicated, did have its inception in a particular incident, a horrific incident for those involved at that particular school, and is certainly a reaction, if you like, in terms of new technologies and emerging issues. It is meant to capture the subjection of a person to humiliating and degrading treatment by another person and then, obviously, the filming and distribution of those events. In this day and age, the ability to do that is quite widely available. Standards are certainly being challenged in our society about what is private, not private and, in some ways, what is humiliating and degrading and what is not.

I note and thank the government for its briefing on this bill, in particular Kim Eldridge from the Attorney's office for making her time available and also for providing us with correspondence from both Kelly & Co. and also Free TV Australia with regard to their particular concerns about this bill perhaps having an adverse impact particularly in the area of media coverage and the ability of the free press—although obviously we are not talking about the printing press when we refer to media in this day and age and certainly in this case we are looking at a very visual medium.

I note that those concerns, to some degree, have been addressed by the Attorney's office. Since this bill was first introduced, there have been amendments and a willingness to take on board the unforeseen diminution of the ability of what I would call a free press to ensure public accountability not only of public officials but also in general current affairs reporting of all sorts of agencies.

With that, I indicate that the Greens are supportive of the debate on this bill continuing. We do keenly look forward to the committee stage and the interrogation of clauses of this bill to ensure that the government is able to answer the questions to be put to it by the opposition. We are aware that there is a proposal mooted to refer this to a committee such as the Legislative Review Committee; however, at this stage we are not convinced that it is necessary and we believe the committee stage, in fact of this parliament, is robust enough to be able to deal with the matters of concern that have been raised. I specifically point again to Kelly & Co. who have expressed concerns about the ability of news media to be able to film and distribute video and images if they are of humiliating and degrading acts in terms of whether they are for a legitimate public purpose.

Obviously this is not only a new area of law before this parliament but it is a new area in our society. I am certainly cognisant of the initial submission made very early on—not specifically to this bill but certainly on this issue—by YACSA, who suggested that perhaps the reviews should be more broadly undertaken with regard to new technologies and the legal implications overall and certainly a comprehensive approach to this area. It may be a useful avenue, and I commend YACSA for participating in the civil society of our state in putting that view forward. I also note its words, in particular advocating on behalf of young people who are currently caught up in such activities as sexting. Some young people are inadvertently ending up on the wrong side of the law for practices they themselves have chosen, a course of action that leads them to be registered as a sex offender later in life.

There are unforeseen implications in this area that are adversely impacting on young people in particular, young people who live their lives online, young people who are not afraid of new technologies, who have them to hand, who are not only adept at using them, but also have different standards on what is acceptable to be captured.

I point to YACSA's recommendations that in fact the better way forward here is a significant investment in education and also in restorative justice. When we are dealing with matters raised by what is in many ways a virtual society, if you like, we need to ensure that we face the reality of the impact of our actions on others when it comes to the technology we have—their humiliation or degradation. So, restorative practices around this would certainly be something the Greens would be keen to see emerge, as well as the educational aspect of this. With that, we support the second reading.

The Hon. A. BRESSINGTON (16:06): The Attorney General indicated back in October that this bill has come about due to deplorable situations where filming of incidents are being exhibited, distributed and, even more disturbingly, published on the internet. The proposed amendment repeals and replaces the current indecent filming provision and creates new provisions of humiliating and degrading filming and distribution of invasive images.

We have all heard of occasions where schoolyard bullying has been filmed and subsequently distributed, or cases where images of a sexual nature were taken and subsequently distributed. Sadly, cases continue to appear in our newsfeeds, newspapers and on television, highlighting yet another instance where an unsuspecting individual has fallen victim to the increasing trend of images of assaults or acts of a private nature being distributed for all to see.

The aim of the bill is to deter and punish those who film these acts without consent. It goes without saying that there needs to be tight controls on any behaviour which infringes on people's rights and unfairly causes embarrassment or shame, especially where there has been an intentional violation of an individual's rights.

We need to send a strong message that victimising members of society and infringing on their rights, regardless of the position you hold, is not acceptable. This behaviour leaves people vulnerable and it is unacceptable within our society. There can be no doubt that a clear line needs to be drawn that this kind of behaviour cannot be tolerated. There are, however, some concerns which have been raised regarding the bill.

In relation to 'humiliating or degrading act', the amendments contain a reasonable adult test which can be read into the provisions for humiliating or degrading filming. However, there is no such qualification as to what a 'reasonable person' is intended to mean within the realm of indecent filming.

I note with interest the Law Society's comment that the use of the 'reasonable person' test in these provisions is uncertain and will lead to dispute. It is a concern that this test may itself become the contentious part of a prosecution rather than the act that brought about the prosecution, and I believe that this is something the parliament should consider as this bill progresses.

Additionally, I note that it is a defence to humiliating and degrading filming that the person reasonably believed that they gained consent. In this instance, the filming should be freely and voluntarily given. I question whether the term 'reasonably believed' may also cause unwarranted confusion. If an act can be reasonably believed to be consented to, at what point can consent be reasonably believed to have been revoked?

The wording is subjective in that the requirement for any judge would be to consider whether the defendant held a reasonable belief that this behaviour was acceptable which would then require a consideration of the person alleged to have committed the crime rather than what an ordinary or reasonable person would consider to be acceptable in that instance. The question needs to be asked: at what standard do we want to hold people accountable for where their actions are concerned?

However, there has been some concern to the needless restrictions which this bill could place on those people who film interactions which affect their lawful interests. I note that these proposed amendments include defences which relate to filming for legitimate public purpose but are silent on the protection of legal interests. On a strict reading of the bill, these provisions could potentially be used to restrict such practices, as we discussed during the surveillance devices bill that there were legitimate instances when the use of recording devices protected the interests of the parties using the devices such as interactions with Families SA or proof that one parent was hurting a child.

It is not too difficult to read into this bill, particularly in the section which speaks of a humiliating and degrading act that a person caught behaving in contravention of specific industry or workplace code of conduct would in fact consider the publication of that incident to be a humiliating or degrading act to which these proposed amendments apply. In that instance, it is foreseeable that a reasonable person would also find the distribution of that film to be humiliating and degrading. However, it is in the best legal interest of the other person to distribute that film as and when necessary.

Whilst the commission of an offence cannot and should not be hidden by laws such as these, it is not without concern that it may at times operate in that way. My office has been assured by the Attorney-General's office that the intention of this bill is to encapsulate those acts which are degrading and humiliating, particularly those acts which are assaults or acts of a sexual nature which were never intended for the public domain. These amendments were drafted to restrict those acts and those acts only. When considering part 5 of the act to which this amendment would be inserted—that is, offences against decency and morality—it is arguable that these amendments would encompass only these types of offences.

That being said, as legislators, it is our responsibility to take these concerns seriously and to ensure as much as possible we produce legislation which is clear, does what it is intended to do and can be enforced properly without loopholes. I look forward to hearing the debate on these issues and seriously considering any arguments put forward on these matters.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (16:13): I understand that there are no further second reading contributions to this bill, and by way of concluding remarks I would like to thank those honourable members who have made a contribution to this debate.

This bill addresses a disturbing gap in the criminal law. The gap allows those who film reprehensible acts, in the full knowledge that the victim of the act does not consent to the act nor the filming, to escape criminal liability for their conduct. The bill states quite reasonably that a person who engages in this conduct will be guilty of an offence. It will also be an offence to distribute the film obtained in the course of that conduct if the distributor knows that the victim does not consent to the distribution of the image.

The opposition has indicated some concerns about some aspects of the bill. The government looks forward to receiving plenty of notice of those specific concerns so that they may be considered before the next sitting day. As I said, I thank honourable members for their contributions.

Bill read a second time.

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