South Australian Numbered Acts South Australian Numbered ActsAfter section 23 insert:
23AA—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 picture 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—
(a) that
the person filmed consented to the distribution of the moving or still
picture; 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 picture was for a purpose connected
with that claim.
(5) An apparent
consent will not be an effective consent for the purposes of this section
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.
(6)
Law enforcement personnel and legal practitioners, or their agents, acting in
the course of law enforcement or legal proceedings do not commit an offence
under this section.
(7) If a court
convicts a person of an offence against this section the court may order the
forfeiture of anything that has been seized and consists of, or contains a
record of, moving or still pictures taken in the course of the commission of
the offence, or consists of equipment used for the commission of the offence.
(8) In this
section—
"distribute" includes—
(a)
communicate, exhibit, send, supply or transmit; and
(b) make
available for access by another; and
(c)
enter into an agreement or arrangement to do something contemplated by
paragraphs (a) and (b); and
(d)
attempt to distribute;
"film" means take moving or still pictures by any means;
"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;
"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.