Page 379 - Week 02 - Tuesday, 17 February 2015
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The nature of the behaviour constituting the offences means that a violation of privacy often occurs without the knowledge of the victim. Accordingly, the victim is not given the opportunity to defend themselves and protect their right to privacy.
The community has a reasonable expectation that certain private acts and parts of the body should not be subject to voyeuristic observation. There is a strong need to criminalise indecent observations or recordings of people in situations where that person should be afforded privacy. It is important to send a clear message that this behaviour is not acceptable and will be taken seriously by the courts.
The harm caused by voyeurism is significant. Studies suggest that women and children are the main victims of unauthorised photographs on the internet. These amendments support, therefore, the national and ACT strategies on preventing violence against women and children. A key outcome under the national strategy is that “justice responses are effective”. So these offences help support that outcome.
A recent European Court of Human Rights case considered the right to respect for private and family life and held that a failure to implement legislation to prevent covert or non-consensual filming or photography of an individual is a violation of that individual’s right to privacy.
Upskirting is not an offence that affects people in isolation, and it is not a victimless crime. The offences can occur at any time, potentially to anyone. It could happen to a mother, a wife, a sister, a daughter or a grandchild. New section 61B(1) of the Crimes Act will therefore criminalise indecent observations or recordings of other people in situations where that person should be afforded privacy. Section 61B(5) will criminalise what is commonly referred to as upskirting and downblousing.
The offences have been developed in response to the way in which advancing technology can be used to capture such material and are designed to cater for further technological innovation.
The amendments will address criminal acts of observing using a device, recording or capturing indecent content and observing, recording or capturing the genital or anal region. To prove the offence, it must be shown that the observation or recording was intentional, an invasion of privacy and objectively indecent in all the circumstances.
Strict liability applies to whether the observation or recording was an invasion of privacy, and absolute liability applies to the assessment of indecency. The use of strict and absolute liability applies only to elements of the offence that are already measured objectively. The use of such elements does not create a strict or absolute liability offence, and a specific intention to take the recording must still be proved by the prosecution.
The offence also provides a number of exemptions to ensure that lawful activities such as law enforcement and security activities can occur.
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