Hansard - Upskirting Bill

PARLIAMENT OF VICTORIA – LEGISLATIVE ASSEMBLY
8 August 2007
pages 73 – 75

SUMMARY OFFENCES AMENDMENT (UPSKIRTING) BILL

Mr WAKELING (Ferntree Gully) – It gives me pleasure to rise to contribute to the debate on the Summary Offences Amendment (Upskirting) Bill 2007. As has been mentioned by members before me, the main purpose of this bill is to make it an offence in specified circumstances to observe, capture or distribute visual images of the genital or anal region of a person's body.
The bill aims to do a number of things, which include prohibiting the use of a device to observe another person's genital or anal region in circumstances where it is reasonable for them to expect that such a region could not be observed. It prohibits the visual capture of such a region in circumstances where it is reasonable for a person to expect that his or her region could not be visually usually captured. It prohibits a person who has visually captured an image of such a region to distribute that image.

It provides exceptions with regard to the use of the device in capturing an image where there is express or implied consent; where it is done via accessing the internet or a broadcasting or datacasting service; or where it is by a law enforcement officer acting reasonably in the course of their duty. The bill also provides exceptions in regard to the distribution of images where express or implied consent to the purpose of distribution or a similar purpose is subject to a person being incapable of giving consent and a reasonable person would regard the distribution as acceptable.
As has been mentioned by a number of speakers, this piece of legislation has been brought about by recent activities of a number of individuals throughout Victoria who have engaged in antisocial behaviour which has involved the capturing of visual images of individuals, particularly women, without their consent.

I would firstly like to go on the record to congratulate Wendy Lovell, a member for the Northern Victoria Region in the other place, on her efforts in raising this issue and making sure that it was put on the political agenda. It is pleasing to see that the government has picked up on her demands and her calls and has enacted legislation.

As has been mentioned, we will be supporting the legislation. There are, however, deficiencies within the legislation that I think are important to put on the record to identify how the government could have gone about this in a much better way. The first thing, which has been mentioned by the member for Brighton, is that the Attorney-General – the new, happy Attorney-General as opposed to the Attorney-General that we had last week – issued a press release dated 27 July 2006, which is over 12 months ago, in which he was calling for a push for national laws on upskirting and downblousing.

If this issue was such an important matter, if the government had been on the ball and actually ensuring that legislation came before the house in a timely manner, we would not be dealing with this bill 12 months down the track.

The other important point in regard to this press release is that the minister made a point of explaining that through his efforts he would be ensuring that legislation would be enacted to deal with not only the issue of upskirting but, as has been mentioned by others, downblousing, which is the taking of a photo down a woman’s blouse without her knowledge or consent. As we know, that provision is not in the legislation. At the legislative briefing I attended I asked the question of the staff. To their credit, they provided explanations as to the difficulties associated with legislating on that issue, but one can only question why the minister would actually go on the record and publicly state that he was going to push for such a provision if his own department believed that it was not possible.

Another issue that needs to be brought to the house's attention, as was mentioned by the member for Box Hill, is the minister’s own second-reading speech, in which he said:

The bill creates specific and unique offences that ban upskirting and related behaviour. Although this behaviour may already be prohibited by existing offences, such as indecent behaviour and stalking, this bill creates offences directly targeting such behaviour.

One has to ask whether this legislation is necessary. The Liberal Party, and I as the member for Ferntree Gully, will be supporting the bill, but the question obviously has to be asked whether this offence is already covered by existing legislation.

The minister has already alluded to that in his second-reading speech.

I understand the Law Institute of Victoria has also raised concerns about that provision. Another important issue that needs to be dealt with concerns the on-forwarding of illegal material.

Proposed section 41C of the Summary Offences Act says:

A person who visually captures or has visually captured an image of another person's genital or anal region ... must not intentionally distribute that image.

Therefore a person who visually captures an image and then on-forwards it can potentially face two years imprisonment. However, not covered by this legislation is the circumstance when an image is forwarded to a separate individual who is not party to the illegal action and that individual on-forwards the image; that person is not affected in any way by the provisions of this bill. We certainly raised this issue at the bill briefing, and it was clear that the government had no intention of seeking to cover such circumstances through this bill. Obviously women would be greatly concerned if they knew that if the secondary person who received their image from the perpetrator on-forwarded that material and were not captured by the provisions of this legislation.

There is also concern about proposed section 41B of the Summary Offences Act. It reads:

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.

This proposed section obviously deals with taking images of children.

Whilst we understand the provision on which the minister has couched this legislation, it is unclear and therefore will be open to much scrutiny in the court system and will be a minefield for the legal fraternity. We think it would have been much better for the government to have properly worded this provision to clarify and overcome these issues, because what is reasonable for one person may be deemed unreasonable for another. Whilst it may be deemed reasonable for one person to take a photograph of their child, others may believe that may be inappropriate because of the age of a particular child. These issues need to be clarified. We believe the government has dropped the ball on this issue. The government could have dealt with this issue better considering the fact that the minister raised it 12 months ago; he has had 12 months to deal with this aspect of the legislation.

Proposed section 40 of the Summary Offences Act says in part:

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 ...

As the member for Box Hill has indicated, individuals may well view someone through a peephole, for example, but that situation, to our understanding, will not be covered by the provisions of this legislation.

Whilst we understand and support the tenet of the bill, we believe there are still areas of deficiency.
We hoped the government could have fixed those problems. Nevertheless we will be supporting this legislation; I am happy to support the bill because it is legislation that this community has called for and it is legislation that the Liberal Party has called for. However, there are still areas of concern where this legislation may need to come back to this house for future improvement.

Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm