Tanczos Nandor: Crimes (Intimate Covert Filming) Amendment Bill — Second Reading 
Tanczos Nandor: Crimes (Intimate Covert Filming) Amendment Bill — Second Reading 
[Volume:629;Page:1786] 
NANDOR TANCZOS (Green) 
: 
 I rise to speak on behalf of the Green Party on the Crimes (Intimate Covert Filming) Amendment Bill. The Green Party like all parties supports the bill and it is an issue we take very seriously. The bill is designed to deal with what is a growing problem internationally. Of course as the technology develops and becomes more miniaturised and more functions become integrated into a single platform it becomes easier to do the kinds of things that the bill is intended to deal with. So it is timely that in this country we are introducing legislation specifically to deal with intimate covert filming. We support that because such behaviour is invasive abusive and humiliating and it is right that we should address it. 
I touch on a couple of points made by one of the previous speakers Mr Chester Borrows. He raised a couple of important points that the House should give some attention to particularly when we move into the Committee stage. The first one he talked about was the issue of audio recordings that do not involve a visual recording; and the example the member gave from his personal experience as an investigating officer was I think very pertinent to the issue at hand. I think we should give some consideration as to whether we should extend the scope of the bill to audio recordings so I thank the member for that contribution. 
The other matter he raised is the situation where a visual recording has been made with the consent of the subject but then it is published without consent. I note that the Minister of Justice Mark Burton interjected on that point and indicated that his view was that the member was wrong. But I think the Minister is indicating now that he stands corrected. 
Hon Mark Burton 
: No but I am looking into it. 
NANDOR TANCZOS 
: The Minister says he is looking into it. When I look at the bill and read the wording of it in my view Mr Borrows is quite correct because if we go to the new section 216G to be inserted into the Crimes Act by clause 3 which defines what an intimate visual recording is it states that it is a visual recording “made in any medium using any device without the knowledge or consent of the person who is the subject of the recording and the recording is of—” the following things. Now when it comes to what use will be made of that recording that is quite a different issue. If we go to section 216I a person is liable to imprisonment who has in his or her possession an intimate visual recording for the purpose of publishing exporting or selling and knowing it to be an intimate visual recording or being reckless as to whether it is an intimate visual recording. But whether the provisions under section 216I come into effect is dependent on whether the matter being discussed comes under the definition of it being an intimate visual recording and that provision states quite clearly that an intimate visual recording is a recording made without the knowledge or consent of the person who is the subject. 
So it seems to me that the circumstances that Mr Borrows outlined where the recording is made with consent but then publication is without consent are not covered by this bill and I think that is something we might want to look at. The member raised an example from his knowledge and there has been a lot of publicity internationally about other cases where that would be a consideration. The famous Paris Hilton videos for example are exactly such an example where a recording was made with consent but it was then published without consent on the Internet. So we do need to look at that issue. 
I accept that maybe the bill is not intended to deal with those issues. Maybe the intention of the bill is simply to cover the situation where the recording is done without consent but I think it is something we should give further thought to and I would be interested to hear the Minister clarify his intention in that regard. 
The other issue I was going to raise was the one that Peter Brown mentioned around the exemptions and he talked about the potential for a private detective to receive an exemption under the regulations. He also made a useful point. Again I would ask the Minister to clarify his intention regarding that issue and whether he sees that those regulations might include private detectives and the like or whether it is not intended that that would be the case. I think it would be useful to have that statement on record so that in the future when we are looking at any regulations that are promulgated we can refer back to the Minister’s statement to see what his intention was. 
The other thing I would like to say before I finish is that I think the select committee did a very good job in scrutinising the legislation. I was not on the Government Administration Committee to take part in the consideration and deliberation but when I read the report I think it shows evidence that the committee did consider a number of potentially quite knotty details and I think it dealt with them in a very responsible way. For example the report states that one of the issues raised was that in order to establish that a visual recording is an intimate visual recording within the meaning of the bill the prosecution will have to establish beyond reasonable doubt that the recording was in fact taken without the knowledge or consent of the subject and if the subject is difficult to identify that may be difficult to prove in court. I think the Government Administration Committee was right in leaving that matter alone and expressing the view that it is an evidential matter that should be dealt with in court on a case by case basis. So I thank the committee for its restraint in that regard. 
The other issue the committee mentions in the report relates to section 216I which relates to the purpose of the possession. It makes a distinction that someone who has in his or her possession without reasonable excuse an intimate visual recording knowing it to be an intimate visual recording is liable to the penalty but if it is in the person’s possession for the purpose of publishing exporting or selling then the test is different. The test is not: without reasonable excuse knowing it to be an intimate visual recording; it is knowing it to be an intimate visual recording or being reckless as to whether it is an intimate visual recording. I think that that distinction is an important one to retain and again I think that the consideration the committee gave to it as outlined in the report is a useful reference for members. 
The final point I would like to address is in relation to Internet service providers. The view of the committee was that Internet service providers should not be criminally liable for another person’s Internet use and I think that that is right; that Internet service providers cannot be expected to know the content of all the material that passes through their services or that they post or store in providing a service to their customers. The committee has recommended that Internet service providers should not be liable although it has said that the exemption should apply only where Internet service providers do not know or suspect that the recording is an intimate visual recording and I think that that is quite right. 
Once again I thank the committee for a good piece of work dealing with some of the potentially difficult issues arising out of a bill of this nature. I thank the Minister for bringing this matter to the House and I thank members for their very useful contributions in this debate.