Victorian Numbered Acts Victorian Numbered ActsSee:
Act
No.
7405.
Reprint
No. 9
as
at
14 September
2005
and
amending
Act
Nos
16/2004, 97/2005, 23/2006, 24/2006, 32/2006 and
63/2006.
LawToday:
www.
legislation.
vic.gov.au
After Division 4 of Part I of the Summary Offences Act 1966 insert —
In this Division—
"child" means a person under the age of 18 years;
"device" means device of any kind capable of being used to observe a person's genital or anal region including—
(a) a mirror; and
(b) a tool when used to make an aperture; and
(c) a ladder—
but does not include spectacles, contact lenses or a similar device when used by a person with impaired sight to overcome that impairment;
"distribute" includes—
(a) publish, exhibit, communicate, send, supply or transmit to any other person, whether to a particular person or not; and
(b) make available for access by any other person, whether by a particular person or not;
"genital or anal region", in relation to a person, means the person's genital or anal region whether bare or covered by underwear;
"law enforcement officer" means—
(a) a member of the police force of Victoria or of any other State or of the Northern Territory; or
(b) a member of the Australian Federal Police; or
(c) a member of staff of the Australian Crime Commission established by the Australian Crime Commission Act 2002 of the Commonwealth;
"place" includes land, premises and a vehicle;
"visually capture", in relation to a person's genital or anal region, means capture moving or still images of that region by a camera or any other means in such a way that a recording is made of those images or those images are otherwise capable of being distributed.
An offence against this Division may be committed even if the person whose genital or anal region is being observed or visually captured is in a public place.
A person must not, with the aid of a device, intentionally observe another person's genital or anal region 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 observed.
Penalty: 3 months imprisonment.
Notes
1 The reasonable expectation test is an objective one—what would a reasonable person in the position of the person being observed have expected.
2 Section 41D(1) sets out exceptions to this offence.
A person must not intentionally visually capture another person's genital or anal region 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.
Penalty: 2 years imprisonment.
Notes
1 The reasonable expectation test is an objective one—what would a reasonable person in the position of the person whose genital or anal region is being visually captured have expected.
2 Section 41D(1) sets out exceptions to this offence.
A person who visually captures or has visually captured an image of another person's genital or anal region (whether or not in contravention of section 41B) must not intentionally distribute that image.
Penalty: 2 years imprisonment.
Note
Section 41D(2) sets out exceptions to this offence.
(1) Section 41A or 41B does not apply to an observation or visual capturing made—
(a) with the express or implied consent of the person whose genital or anal region is observed or visually captured; or
(b) by accessing the Internet or a broadcasting service (within the meaning of the Broadcasting Services Act 1992 of the Commonwealth) or datacasting service (within the meaning of that Act); or
(c) by a law enforcement officer acting reasonably in the performance of his or her duty.
(2) Section 41C does not apply to a distribution of an image—
(a) for a particular purpose if the person whose genital or anal region is visually captured ( the subject ) has expressly or impliedly consented to the distribution of the image for that purpose or a similar purpose; or
Example 1
A patient gives consent to doctor A distributing an image of a mole in her genital region to another doctor for a second opinion. A distribution by doctor A of the image to a non-medical friend is not covered by the exception as the purpose of the distribution is different.
Example 2
A model gives consent to a photographer distributing an image to magazine A for a commercial purpose. A distribution by the photographer of the image to magazine B is covered by the exception as the purpose of the distribution is the same—commercial.
(b) if—
(i) the subject is a child or other person incapable of giving consent; and
(ii) the capturing was not made in contravention of section 41B; and
(iii) in the particular circumstances, a reasonable person would regard the distribution of that image as acceptable; or
Example
Emailing by a person of a photograph of a naked newborn relative to a family member or friend may not be an offence against section 41C because of paragraph (b).
(c) by a law enforcement officer acting reasonably in the performance of his or her duty.
Notes
1 Sections 68, 69 and 70 of the Crimes Act 1958 set out offences in relation to child pornography.
2 Part 6 of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 sets out offences in relation to the distribution of objectionable material by an on-line information service.
(1) A member of the police force of or above the rank of sergeant may apply to a magistrate for the issue of a search warrant under this section in relation to a particular place if the member believes on reasonable grounds that there is, or may be within the next 72 hours, in that place evidence of the commission of an offence against section 41A, 41B or 41C.
(2) If the magistrate is satisfied by the evidence on oath or by affidavit of the applicant that there are reasonable grounds for suspecting that that there is, or may be within the next 72 hours, in that place evidence of the commission of an offence against section 41A, 41B or 41C, the magistrate may issue a search warrant authorising any member of the police force named in the warrant—
(a) to enter the place, or the part of the place, named or described in the warrant; and
(b) to search for and seize any thing named or described in the warrant.
(3) In addition to any other requirement, a search warrant issued under this section must state—
(a) the offence suspected; and
(b) the place to be searched; and
(c) a description of the thing for which the search is to be made; and
(d) any conditions to which the warrant is subject; and
(e) whether entry is authorised to be made at any time or during stated hours; and
(f) a day, not later than 7 days after the issue of the warrant, on which the warrant ceases to have effect.
(4) A search warrant must be issued in accordance with the Magistrates' Court Act 1989 and must be in the form set out in the regulations under that Act.
(5) Subject to any provision to the contrary in this Division, the rules to be observed with respect to search warrants mentioned in the Magistrates' Court Act 1989 extend and apply to warrants under this section.
A search warrant authorises a member of the police force executing the warrant, in addition to the seizure of any thing of a kind described in the warrant, to seize any thing which is not of a kind described in the warrant if the member believes on reasonable grounds—
(a) that the thing—
(i) is of a kind which could have been included in a warrant issued under section 41E; or
(ii) will afford evidence about the commission of an offence against section 41A, 41B or 41C; and
(b) that it is necessary to seize that thing in order to prevent its concealment, loss or destruction or its use in the commission of an offence against section 41A, 41B or 41C.
(1) Before executing a search warrant, a member of the police force named in the warrant must—
(a) announce that he or she is authorised by the warrant to enter the place; and
(b) give any person at the place an opportunity to allow entry to the place.
(2) The member of the police force need not comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the place is required to ensure—
(a) the safety of any person; or
(b) that the effective execution of the search warrant is not frustrated.".