Burton Mark: Crimes (Intimate Covert Filming) Amendment Bill — Second Reading 
Burton Mark: Crimes (Intimate Covert Filming) Amendment Bill — Second Reading 
[Volume:629;Page:1778] 
Hon MARK BURTON (Minister of Justice) 
: 
 I move  
That the Crimes (Intimate Covert Filming) Amendment Bill be now read a second time 
. This bill was introduced in April of last year to address the increased incidence of voyeuristic covert filming. The issue of covert filming was brought to the Government’s attention by the good work of the Government Administration Committee’s 2003 inquiry into the Films Videos and Publications Classification Act and related matters which highlighted the inadequacy of legal sanctions against such behaviour. The Government referred that issue to the Law Commission for its consideration. The Law Commission concluded that existing laws do not provide an effective response to this activity. The Government’s ability to move to address intimate covert filming is partly due to the Law Commission’s comprehensive study paper on the matter. I want to acknowledge the good work of the Law Commission as well. 
This bill makes it an offence to make surreptitious visual recordings of other people in intimate circumstances without their knowledge or consent. That is a modern form of peeping and it has been made worse by technology such as cellphone cameras and computers which make it easier to both record and then distribute voyeuristic images. Although in general covert filming has a sexual element that is not always the case. The real issue is that it constitutes an invasion of personal privacy. Intimate covert filming objectifies individuals and can be seen as an affront to the dignity and autonomy of an individual. The ability to distribute images of that nature without the individual’s consent especially on the Internet is of particular concern. 
The incidence of intimate covert filming is increasing worldwide. Even in New Zealand there have been instances where miniature cameras and cellphone cameras have been used to record images of women and children in states of undress. Neither the activity of intimate covert filming nor the subsequent distribution of those recorded images is explicitly prohibited in New Zealand. Intimate covert filming can cause real harm such as psychological symptoms and disorders not merely embarrassment. I think it is important that we note that. 
 Some examples of this personally intrusive activity include the discovery of images of two teenage girls getting changed before and after swimming and getting ready for bed which were taken by a video camera hidden in their bedroom. Another example is that of a technician who in the course of his work for a theatre group installed a hidden camera in the dressing room of female performers. Those types of images are not necessarily subject to censorship laws as in many circumstances they may not of themselves meet the test for prohibition under those laws. The real concern with those images is the invasion of the privacy of the person or persons depicted and the subsequent use of the visual record of that invasion of privacy. 
The law should provide a response to people who breach another person’s privacy in such a personal way. That is why these new offences are contained within the criminal law to reflect the public abhorrence associated with this type of behaviour. The creation of a criminal offence related to this conduct in New Zealand is consistent with action taken in a number of other jurisdictions. The United States and the United Kingdom have laws in place with Canada and some Australian states also considering similar legislation. 
The Government Administration Committee has recommended a number of useful improvements to the bill and I thank the committee for its very good work. As reported back from the committee the bill maintains the definition of intimate visual recording as a visual recording made without the knowledge or consent of the person who is the subject of the recording; and the recording is of a person who is in a place which in the circumstances would reasonably be expected to provide privacy; and that person is naked or has sexual parts of his or her body exposed partially exposed or clad solely in undergarments; or is engaged in an intimate sexual activity or engaged in showering toileting or other personal bodily activity that involves dressing or undressing. The definition also includes recording beneath or under a person’s clothing to deal with instances such as “up-skirt” filming. The bill maintains the new criminal offences that relate to making an intimate visual recording possessing an intimate visual recording publishing importing exporting or selling an intimate visual recording. The bill maintains the 3-year maximum term of imprisonment for these offences other than the simple possession offence which will attract a penalty of imprisonment not exceeding 1 year. 
The select committee carefully considered the concept of distribution as introduced by the bill and has recommended amendments to refine the concept. The amendments make it clear that people who provide access to an intimate visual recording either by actively sending material to another person or allowing his or her computer to be used as a virtual library will be caught by the Act’s offence provisions. On the other hand the amendments also make sure that people are not liable when they unintentionally or unknowingly provide access to an intimate visual recording. Internet service providers for example who provide access to the Internet will not be liable simply because their service is used by others to provide access to an intimate visual recording. 
The committee also recommends that the offences in the bill should be broad enough to ensure that live digital streaming technology is caught under the intimate covert filming provisions. This is I think an important and very helpful improvement to the bill and I certainly support it. The provision of a maximum 3-year penalty sends a clear message that this activity is entirely unacceptable. The bill enables the police to use their search and seizure powers to immediately investigate these new criminal offences including in those circumstances where images are discovered on the Internet. In addition the bill provides that upon conviction the court will have the power to order the destruction of the image or recording and the forfeiture of equipment used in the commission of the offence to the Crown. 
Specific agencies such as police undertaking video surveillance will be exempt from criminal liability under the bill where an intimate visual recording is made possessed or published for the purpose of or in the course of carrying out their law enforcement safety or security functions. The exemptions will not apply however to anything done in bad faith or without reasonable cause. Amendments proposed by the select committee ensure that people who supply appropriate authorities with covertly filmed material for the purpose of lawful investigation are not subject to the publishing offence provisions. 
The Crimes (Intimate Covert Filming) Amendment Bill will provide victims of covert filming with an effective response. Convictions and penalties received under the new offence provisions should have a deterrent effect on this activity in the future. I look forward to these measures taking effect upon the passage of the bill and I commend the bill to the House.