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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-02-07 Daily Xml
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SUMMARY OFFENCES (FILMING OFFENCES) AMENDMENT BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

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) (16:37): I move:

That this bill be now read a second time.

I seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

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, a social medium or an Internet homepage). 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, it will be at least an assault. The publication of images may be caught by the 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 a 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 from 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 at 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.

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 invasion of dignity, and the second, invasion of privacy.

Addressing the first concern, proposed new sections 26B and 26C would create new offences connected with 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. Third, it is a more serious offence both to engage in the humiliating or degrading treatment of the victim and also to either film it or distribute the film.

This law is meant to capture the subjection of one person to humiliating or degrading treatment by another person. These offences will not capture things that happen by accident, such as where a person slips over in the street or suffers a wardrobe malfunction. It will not capture things that the person himself 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 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 to or forced to undergo humiliating or degrading treatment at the hands of another.

This law is not meant to cover situations that are merely embarrassing. The act to which the victim is subjected must be one that reasonable adults would think that it was humiliating or degrading of 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 the 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 is approached on the street by a stranger who grabs the hijab and pulls it off. Reasonable adults might well judge this 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. Disorderly behaviour is one example. Dishonesty is another. The law often requires a court to apply community standards or the judgment 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 over-reacted.

The Bill does not intend to capture conduct for a legitimate public purpose, that is, conduct that is in the public interest. The Bill gives examples of matters that 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, film that aims to expose abuses, for instance, film of police brutality or film of degrading conditions in a detention centre would be likely to 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 the 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 a medical, legal or scientific purpose. For example, film might be evidence in legal proceedings and might properly be 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 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 the 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 distribution. With these images, it will rarely be possible to know whether they are distributed with consent or not and this offence is not intended to capture that. 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.

The Government has engaged in extensive and detailed discussions with representatives of traditional media organisations about this Bill. The result has been that any disagreement about the effect of the Bill has been narrowed, in effect, to two amendments. These amendments were made in another place. the amendments of substance concern the defence of legitimate public purpose. The representatives of traditional media organisations were firmly of the opinion that some of what they show or report would fall foul of the prohibition on humiliating and degrading filming. They submitted, strongly, that this was a restraint on the freedom of the media.

The Government's position was and remains that the new proposals contained in this Bill are not and were never aimed at traditional media organisations. The amendments say that the media are to be given the benefit of a presumption that they are, in effect, doing the right thing. If the prosecution can then prove that they were not doing the right thing - well, the usual consequences would flow from that.

The Bill now defines who is entitled to the benefit of the presumption. That presumption is to be limited to traditional media organisations. In this digital and multi-electronic age, anyone can be a media organisation. Many people can and do comment on political and social affairs through blogs, Twitter, Facebook and so on. But traditional media organisations subscribe to professional ethics and codes of conduct enforced by national bodies. They voluntarily undertake self-regulation. This definition confers a benefit - the presumption - because of that fact.

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 such a 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 and a presumption relating to conduct by or on behalf of a media organisation.

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 Hon. J.S.L. Dawkins.

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