Upskirting Bill: Hulls late in acting yet again

Hansard: 8 August 2007 ASSEMBLY

Mr CLARK (Box Hill) — If one ever wanted a demonstration of the emptiness of our new Premier’s claim that his is going to be a more decisive government, one need only look at the lazy and sloppy way in which this issue and this legislation have been handled by his new deputy, the Attorney-General. The covert use of new technology to spy on people’s private activities has been an issue that has been raised since 2002. There have been calls for legislation such as has now reached this Parliament as far back as 2003. Queensland legislated on this subject in December 2005. The Attorney-General set various time lines for this legislation which he has failed to meet.

He has left out of this legislation a large part of the coverage that he said it would have. The bill fails to exempt innocent family activities, but on the other hand it fails to properly tackle real problems that exist with the covert spying on people in their private activities.

The Premier may claim that his will be a decisive government, but his deputy has demonstrated that he is anything but. Ma ana is certainly good enough for the Attorney-General. This of course comes on top of the Attorney-General’s delays, his laziness and his sloppiness in the handling of other aspects of his portfolio — the long delays in the promised redevelopment of courtrooms for the Supreme Court and the bulging waiting lists of our courts because half our judges are tied up spending their time teaching the other half how to be judges because the Attorney-General has appointed people with no courtroom experience and has made no allowance for their steep learning curve. We also have increasing numbers of cases on appeal from the County Court due to basic errors of law from other inexperienced judges.

It has taken our Attorney-General since March last year to bring in an amendment to his own outworkers legislation to reinstate the minimum wages for clothing outworkers that he told us at the time was vital to stop them being exploited. We have had the Senate Elections Amendment Bill languishing on the notice paper for months at risk of not being dealt with if the Attorney-General does not get his act together before the federal election is called.

Then, of course, yesterday the Attorney-General announced the appointment of new Supreme Court judges and confused the identity of one of his appointees with a federal member of Parliament. It is this laziness and sloppiness of the Attorney-General that provides the context in which the bill before the house needs to be assessed.

The bill tackles a serious problem and is legislation for which we have been calling for some time. It contains prohibitions on the use of a device to observe another person’s genital or anal region where it would be reasonable for them to expect that that region could not be observed. That offence carries a penalty of up to three months in jail. It prohibits the visual capture of such regions where it would be reasonable for the person to expect that the region could not be visually captured. There is a two-year penalty for that. It prohibits a person who has visually captured such an image from distributing that image.

It provides exceptions regarding the use of a device and the capture of an image where there is express or implied consent, where it is done via the internet or via a broadcasting or datacasting service or by a law enforcement officer reasonably in the course of their duty.

The bill also provides exceptions regarding the distribution of images where there is express or implied consent to the purpose of distribution or a similar purpose, if the subject is a person incapable of giving consent and a reasonable person would regard the distribution as acceptable or by a law enforcement officer reasonably in the course of their duty. The bill also confers the power to issue a search warrant in relation to an alleged visual capture or distribution offence.

The contents of the bill are straightforward, but the history of it, as I referred to earlier, deserves scrutiny.

As I said, the use of various forms of new technology for the covert surveillance of people and the covert taking of images has been identified since as far back as 2002, and there has been a long series of calls and proposals for legislation around the nation. Our Attorney-General demonstrated yet again his gift — like the gift of many of his colleagues — for using calls for national or federal action as an excuse for his own inaction.

In a media release on 27 July last year the Attorney-General boasted:

Victoria will lead a push to have national laws that crack down on the taking of unauthorised photos for sexual gratification or an indecent purpose.

An example of such an offence is where someone takes a photograph up a woman’s skirt without her knowledge, known as ‘upskirting’, or takes a photo down a woman’s blouse without her knowledge, known as ‘downblousing’.

At this week’s meeting of attorneys-general Mr Hulls will seek agreement from other attorneys-general to work towards national laws targeting upskirting and downblousing.

So our Attorney-General was out there in the media bragging that he was setting the pace in the call for legislation to deal with upskirting and downblousing. But it is interesting to see the news release issued by the Queensland Minister for Justice and Attorney-General the following day, Friday, 28 July 2006, in which she put an entirely different interpretation on what was happening at the Standing Committee of Attorneys-General meeting. She headlined her media release ‘Australian states and territories to look at adopting Queensland secret filming laws’. It states:

‘All Australian states and territories will look at adopting national uniform privacy laws based on secret filming and –upskirting– reforms passed late last year by Queensland’, Attorney-General Linda Lavarch said today.
She went on to make the point that Queensland had legislated the previous December and outlined the provisions of that legislation, which cover exactly the same sorts of things as are tackled by this bill that has now finally reached this house for debate in August 2007. Rather than setting the pace on this, our Attorney-General was exposed from the start as tagging along belatedly behind Queensland and relying on a call for national uniformity to justify taking no action himself.

There were incidents over the past summer where people were arrested, charged, convicted and jailed for various secret filming and observation activities under existing law.

The then Premier was under pressure to say what was going to be done. He was reported in the Australian as saying:

I know that Attorney-General Rob Hulls will be bringing forward legislation, hopefully by April or May, to make sure that we have got specific and unique legislation dealing with that matter …
A media report of 24 January 2007 quoted the Attorney-General as saying that draft laws would be ready by April. Now this legislation is finally reaching the house, and it is manifest that the Attorney-General was unable to meet even his own very belated deadlines.

The other observation that needs to be made about the legislation that has finally reached the house is that a large part of what the Attorney-General promised would be covered has been omitted from the bill. That, of course, is the reference I quoted earlier to what the Attorney-General described as downblousing.

The Attorney-General’s reason for not including that measure in the legislation is that the report of officers prepared for the Standing Committee of Attorneys-General — as I understand what the opposition was told during the briefing that was provided to us by the department — cast doubt on the practicability of drafting the specifications of an offence to cover what the Attorney-General described as downblousing.

I make two observations on that. First of all one would have thought that it is perfectly possible to define such an offence based on the core principle of this legislation — that people should not be covertly spied upon through the use of a device or through the capture of images or have those images distributed where it is reasonable for them to expect that that observation of that particular part of their body would not occur. There seems to be no reason in logic why the activity described by the Attorney-General as downblousing could not have been covered based on that general definition.

I would certainly welcome the document referred to, which was said to have been provided to the Standing Committee of Attorneys-General, being made public so that the arguments the Attorney-General is relying on can be more closely examined.

I make the further observation that this yet again demonstrates that our Attorney-General is prepared to go off with grand announcements without having done his homework and without having turned his mind to the issues, and he is then forced to retreat because for some reason he finds himself unable or unwilling to deliver on his grand promises. That is one of the serious shortcomings of the legislation before the house. It has a number of other serious shortcomings which relate to both what is caught by the legislation and what is not caught by the legislation. The structure of the exemptions provided in the legislation is very curious indeed. As I said at the outset, there are three broad offences that are defined by the legislation.

The first is prohibited observation; the second is the prohibited visual capture of images; and the third is the distribution of those images. There are some exemptions provided in the case of distribution that are not provided in the case of observation or capture. The one to which I particularly refer is the exemption to the distribution of an image which applies if the subject is a child or other person incapable of giving consent — namely, that the capturing was not made in contravention of proposed section 41B, and in the particular circumstances a reasonable person would regard the distribution of that image as acceptable. The bill gives as an example that the emailing by a person of a photograph of a naked newborn relative to a family member or friend may not be an offence against proposed section 41C because of paragraph (b), which is the exemption that I referred to in proposed section 41D(2) to be inserted into the act.

That exemption is of course perfectly reasonable as far as it goes.

We certainly would not want the innocent distribution amongst family members of photos of newborn relatives being caught by this legislation. But the concern is that while this exemption is provided for distributing such an image, there is no corresponding exemption provided for the capturing of such an image. In other words if you take a photo of your newborn child or a young child not wearing clothes, then on the face of it you have breached proposed section 41B and have committed an offence under the legislation.

There may be an argument around that. It may be possible to say that, because of the way that offence is defined, that activity would not fall under it because it would not fall within the words of the section which provides:

A person must not intentionally visually capture another person’s genital or anal regions in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be visually captured.

One could argue that in that circumstance it would be reasonable for a newborn baby to expect that his or her genital or anal region could be visually captured and therefore an offence is not committed. However, one gets into a very convoluted line of reasoning about what sort of reasonable person is to be assumed in that instance where the person being filmed is actually a young child. Does one talk about a reasonable young child, a reasonable newborn baby or a reasonable adult? It will be a delight for lawyers to argue over the interpretation of those questions, but ordinary citizens should not be subjected to this sort of complexity, unnecessary risk and sloppiness in the drafting of this measure in their innocent activities in daily life.

I should say that the law institute has also raised concern about the inadvertent capture of various images that would technically qualify under the legislation, including the potential for photographs taken in various public places where an image that transgresses the bill is inadvertently captured. I should also say for the record that the institute is opposed to the creation of a new offence by this bill in total. That is not something with which the opposition agrees, but the institute’s concerns about the drafting of the legislation need to be paid due respect.

Another deficiency in the bill is its failure to deal with a number of practices that are taking place which transgress what this legislation is supposed to be seeking to prevent and which are a cause of considerable concern.

I would like to thank and acknowledge the Australian Family Association for drawing this issue to my attention. The issue is the use of peepholes in various public or semi-public locations in order to spy on people in private activities, and in particular to spy on them in toilets in public places, shopping centres and the like. This problem has been the subject of quite detailed media coverage, first of all in an article in the Sunday Herald Sun of 21 May 2006 and subsequently in a small passage in the Herald Sun of 1 July this year.

If we are serious about having specific legislation to prohibit covert spying on other people in circumstances where they are entitled to believe they would not be observed, we need to make sure this legislation covers the full range of this problem. It is clear that the legislation at least sets out or purports to cover the full range of the problem.

It may be thought the term ‘upskirting’ that is used in the bill limits it to the observation of people simply in that context, but it is clear in the case that became public over the past summer that one of the offences that was committed by a person who was arrested, charged and subsequently sentenced to imprisonment, was spying on other people in the showers, as I recall, in a boarding house or hotel context. It is clear that the vice which this legislation sets out to tackle and which the Attorney-General and the Premier of the day were assuring us would be tackled includes this.

I refer in particular to a media report that referred to a Japanese student who took secret footage of women showering in a Melbourne backpackers hotel, as well as up the skirt of a woman at the Australian Open Tennis Championships, and who was jailed for at least two months. However, the bill does not adequately deal with this problem because of poor drafting.

The problem with the drafting is that a person commits an offence for covert surveillance under this legislation only if that offence takes place with the aid of a device.

If one turns to the definition of ‘device’ in proposed section 40, one finds that it refers to a device of any kind, including a mirror, a tool when used to make an aperture and a ladder. It is clear that the drafters of the bill and the Attorney-General are trying to cover the situation where a tool is used to make an aperture. However, the problem is that the provision does not apply when someone makes use of an aperture, a hole or any other way of observing someone covertly that has come about through a breakage or other inadvertent cause or, even more seriously, where a hole in a wall is made by one person and is then used by another person to covertly spy on a third person in their private activities. This is a serious oversight by the Attorney-General in his preparation and presentation of this legislation.

If the Attorney-General is going to say to this house and to the public that he is going to tackle this serious problem, which is becoming more widespread and is causing justifiable offence, outrage and uneasiness to many citizens, then he needs to make sure that he does the job properly. Clearly, given this deficiency in the drafting of the legislation, he has not done the job properly. He is leaving a sizeable loophole in the law. The consequence of that is that our police force will be considerably impeded in trying to take action against people who have been using peepholes, spy-holes or other apertures in walls in public toilets to spy on other people. If the police are going to seek to prosecute under this legislation, they will have to prove that the person being prosecuted was the person who made the hole or created the aperture. That will be a very difficult thing for them to do. This causes the opposition considerable concern.

We would have thought that the Attorney-General would have made this legislation far more effective given the time he has taken to put it together. We are certainly going to support this legislation so far as it goes, because it is a step in the right direction. I would like to commend the work of my colleague the shadow Minister for Women’s Affairs, Wendy Lovell, a member for Northern Victoria Region in another place. She has been diligent in drawing the need for this legislation to public attention, pointing out the delays that have occurred and exhorting the government to act.

We welcome the fact that this legislation has got to this house at last, even in the deficient form in which it has been presented. We call on the government to respond to the concerns I have raised today and to act to improve this legislation to ensure the obnoxious behaviour involved is effectively tackled.