Hon Phil Goff Minister of Justice

5 may 2005

Speech Notes

Covert Filming Bill, first reading speech

Mr Speaker, I move that the Crimes (Intimate Covert Filming) Amendment Bill be now read a first time. I intend to move that the Bill be referred to the Law and Order Select Committee.

Intimate covert filming is the making of surreptitious visual records of other persons in intimate circumstances, without their knowledge or consent, and in circumstances that the person would reasonably expect to be private.

Generally, covert filming has a sexual element. Whatever the intention, it constitutes an invasion of personal privacy, concentrating on situations that are personal and private.

It is an affront to human dignity; turning individuals into objects for others’ gratification, and it deprives individuals of control over how they are presented to the world. The potential publication of the images, particularly on the Internet, aggravates the invasion of an individual's privacy.

The publication can result in fear for personal safety, and shame and humiliation.

The problem is getting worse. The old offence of peeping and peering has been aggravated by the advent of new technology. Miniature cameras, mobile phone cameras, and other devices have been used to visually record women and children in circumstances of undress or intimacy without their knowledge or approval. The Internet facilitates the transfer of these pictures around the country and beyond.

Voyeurism is offensive in itself, but additionally is potentially a gateway offence to more serious sexual offending.

In 2003, the government asked the Law Commission to review the issues relating to covert filming and to make recommendations as to options for law reform.

In its 2004 study paper on intimate covert filming, the Law Commission proposed a dual response to such filming in New Zealand. It advocated criminalising specific types of conduct engaged in by a film maker, distributor and person possessing a film. At the same time it recommended ensuring there is an accessible civil remedy for the subjects of the films. The civil remedies will be provided for in a Privacy Amendment Bill that is currently under consideration.

Under existing legislation, there is no provision that specifically prohibits the taking of a photograph or other visual record of a person who is nude, partially nude or engaging in sexual activity.

This Bill proposes amendments to the Crimes Act 1961 to create new offences in line with the Law Commission’s recommendations.

Firstly, the Bill defines intimate visual recording. It means a visual recording taken 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, or partially exposed or clad solely in undergarments; or Engaged in 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.

There are three new offences that broadly relate to the making of an intimate visual recording, the possession of an intimate visual recording, and the publishing, importing, exporting or selling of an intimate visual recording. All offences have a penalty of imprisonment not exceeding three years, other than the simple possession offence, which has a penalty of imprisonment not exceeding one year.

This kind of response is consistent with what is being done in other jurisdictions. The United Kingdom passed a law making voyeurism an offence in 2003. Similar offences are proposed in Canada, New South Wales and the United States.

Making this behaviour a criminal offence enables the police to use their powers of detection and investigation, including those of search and seizure. Criminal penalties also have a deterrent effect, and sentences requiring reparation will help ensure victims receive compensation for the harm they have endured.

Upon conviction, the Court will have the power to order that a recording be destroyed and that any equipment used in the commission of the offence be forfeited to the Crown.

The Bill exempts from criminal liability those agencies that, during the course of an investigation of criminal offending, inadvertently may make, possess, or publish an intimate recording for the purpose of their functions relating to law enforcement, safety or security. The exemption will not apply to any visual recording made or published, etc, in bad faith or without reasonable cause.

Mr Speaker, this legislation provides victims of covert filming with an effective response. The investigative and prosecutorial resources of the Police can be utilised. The process of conviction and penalty can have deterrent, incapacitative, rehabilitative, and reparative effects.

I commend this Bill to the House.

ENDS

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