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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Summary Offences (Filming Offences) Amendment
Bill 2012
A BILL FOR
An Act to amend the Summary
Offences Act 1953.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment of Summary Offences
Act 1953
4Repeal of section 23AA
5Insertion
of Part 5A
Part 5A—Filming
offences
26AInterpretation
26BHumiliating or degrading
filming
26CDistribution of invasive
image
26DIndecent
filming
26EGeneral
provisions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Summary Offences (Filming Offences)
Amendment Act 2012.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Summary Offences
Act 1953
Section 23AA—delete the section
After Part 5 insert:
Part 5A—Filming offences
26A—Interpretation
In this Part—
carriage service provider has the same meaning as in
section 87 of the Telecommunications Act 1997 of the
Commonwealth;
distribute includes—
(a) communicate,
exhibit, send, supply, upload or transmit; and
(b) make available
for access by another,
but does not include distribution by a person solely in the person's
capacity as an internet service provider, internet content host or a carriage
service provider;
film means take moving or still images by any
means;
humiliating or degrading act, in relation to a person,
means—
(a) an assault or other act of violence against the person; or
(b) an act that reasonable adult members of the community would consider
to be humiliating or degrading to that person (but does not include an act that
reasonable adult members of the community would consider to cause only minor or
moderate embarrassment);
humiliating or degrading filming means 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;
indecent filming means filming of—
(a) another person in a state of undress in circumstances in which a
reasonable person would expect to be afforded privacy; or
(b) another person engaged in a private act in circumstances in which a
reasonable person would expect to be afforded privacy; or
(c) another person's private region in circumstances in which a reasonable
person would not expect that the person's private region might be
filmed;
internet content host has the same meaning as in
Schedule 5 of the Broadcasting Services Act 1992 of the
Commonwealth;
internet service provider has the same meaning as in
Schedule 5 of the Broadcasting Services Act 1992 of the
Commonwealth;
invasive image means a moving or still image of a
person—
(a) engaged in a private act; or
(b) 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;
law enforcement personnel means police officers or officers
of a law enforcement agency;
private act means—
(a) a sexual act of a kind not ordinarily done in public; or
(b) using a toilet;
private region of a person means the person's genital or anal
region when covered by underwear or bare.
26B—Humiliating or degrading
filming
(1) A person who
engages in humiliating or degrading filming is guilty of an offence.
Maximum penalty: Imprisonment for 1 year.
(2) A person who
distributes a moving or still image obtained by humiliating or degrading filming
knowing or having reason to believe that the victim—
(a) does not consent to that particular distribution of the image;
or
(b) does not consent to that particular distribution of the image and does
not consent to distribution of the image generally,
is guilty of an offence.
Maximum penalty: Imprisonment for 1 year.
(a) takes part in a humiliating or degrading act; and
(b) in relation to that humiliating or degrading act, engages in conduct
constituting an offence against
subsection (1) or
subsection (2),
is guilty of an offence.
Maximum penalty: Imprisonment for 2 years.
(4) It is a defence to—
(a) a charge of an offence against
subsection (1);
or
(b) a charge of an offence against
subsection (3)
where the defendant is alleged to have engaged in conduct constituting an
offence against
subsection (1),
to prove 1 or more of the following:
(c) the defendant did not knowingly film the images the subject of the
offence;
Example—
The filming took place accidentally or the filming took place in
circumstances where the defendant did not know what images were being filmed
(d) the defendant reasonably believed that the victim consented to the
filming the subject of the offence;
(e) the conduct constituting the offence was for a legitimate public
purpose.
(5) It is a defence to—
(a) a charge of an offence against
subsection (2);
or
(b) a charge of an offence against
subsection (3)
where the defendant is alleged to have engaged in conduct constituting an
offence against
subsection (2),
to prove 1 or more of the following:
(c) the defendant's distribution of the image was neither intentional nor
reckless;
(d) the conduct constituting the offence was for a legitimate public
purpose.
(6) For the purposes of this section, conduct will only be taken to be for
a legitimate public purpose if the conduct was in the public
interest having regard to the following:
(a) whether the conduct was for the purpose of educating or informing the
public;
(b) whether the conduct was for a purpose connected to law enforcement or
public safety;
(c) whether the conduct was for a medical, legal or scientific
purpose;
(d) any other factor the court determining the charge considers
relevant.
(7) If, in any proceedings for an offence against this section relating to
conduct by or on behalf of an organisation, it is proved that—
(a) at the time of the alleged offence the organisation regularly engaged
in broadcasting or publishing activities; and
(b) the conduct was engaged in by or on behalf of the organisation in the
course of such broadcasting or publishing and in compliance with any prescribed
requirements,
it will be presumed, in the absence of proof to the contrary, that conduct
was for a legitimate public purpose.
(8) For the
purposes of this section, a person takes part in a humiliating or
degrading act if he or she—
(a) subjects a
victim to, or compels a victim to engage in, a humiliating or degrading act
(where the victim does not consent to being subjected to, or engaging in, the
act); or
(b) encourages, supports or assists another person to engage in conduct of
a kind referred to in
paragraph (a) in
relation to a victim.
(9) In this section—
broadcasting includes datacasting;
publish means publish by newspaper, radio or television, or
on the internet, or by other similar means of communication to the
public;
victim means a person subjected to, or compelled to engage
in, a humiliating or degrading act (where the person does not consent to being
subjected to, or engaging in, the act).
26C—Distribution of invasive
image
(1) A person who
distributes an invasive image of another person, knowing or having reason to
believe that the other person—
(a) does not consent to that particular distribution of the image;
or
(b) does not consent to that particular distribution of the image and does
not consent to distribution of the image generally,
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) It is a defence to a charge of an offence against this section to
prove—
(a) that the conduct constituting the offence—
(i) was for a purpose connected to law enforcement; or
(ii) was for a medical, legal or scientific purpose; or
(b) that the image was filmed by a licensed investigation agent within the
meaning of the Security
and Investigation Agents Act 1995 and occurred in the course of
obtaining evidence in connection with a claim for compensation, damages, a
payment under a contract or some other benefit and the distribution of the image
was for a purpose connected with that claim.
26D—Indecent filming
(1) A person must
not engage in indecent filming.
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.
(2) It is a defence to a charge of an offence against
subsection (1)
to prove—
(a) that the indecent filming occurred with the consent of the person
filmed; or
(b) that the indecent filming was undertaken by a licensed investigation
agent within the meaning of the Security
and Investigation Agents Act 1995 and occurred in the course of
obtaining evidence in connection with a claim for compensation, damages, a
payment under a contract or some other benefit.
(3) A person must
not distribute a moving or still image obtained by indecent filming.
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.
(4) It is a defence to a charge of an offence against
subsection (3)
to prove 1 or more of the following:
(a) that the person filmed—
(i) consented to that particular distribution of the image the subject of
the offence; or
(ii) consented to distribution of the image the subject of the offence
generally; or
(b) that the defendant did not know, and could not reasonably be expected
to have known, that the indecent filming was without the person's consent;
or
(c) that the indecent filming was undertaken by a licensed investigation
agent within the meaning of the Security
and Investigation Agents Act 1995 and occurred in the course of
obtaining evidence in connection with a claim for compensation, damages, a
payment under a contract or some other benefit and the distribution of the
moving or still image was for a purpose connected with that claim.
26E—General provisions
(1) An apparent consent will not be an effective consent for the purposes
of this Part if—
(a) given by a person who is under 16 years of age or mentally
incapacitated; or
(b) obtained from a person by duress or deception.
(2) The following persons do not commit an offence against this
Part:
(a) law enforcement personnel and legal practitioners, or their agents,
acting in the course of law enforcement or legal proceedings;
(b) medical practitioners, or their agents, acting in the course of
medical practice or for genuine educational or research purposes.
(3) If a court finds a
person guilty of an offence against this Part, the court may order the
forfeiture of anything that has been seized and consists of, or contains a
record of, moving or still images taken in the course of the commission of the
offence, or consists of equipment used for the commission of the
offence.
(4) A court making an order for forfeiture of any equipment or item under
subsection (3) may,
if it thinks fit, allow the offender or any other person an opportunity to
retrieve (in accordance with any directions of the court) specified records, or
other material, not involved in the commission of the offence from the equipment
or item before it is so forfeited.