CRIMES ACT 1900 - SECT 61B Intimate observations or capturing visual data etc
CRIMES ACT 1900 - SECT 61B
Intimate observations or capturing visual data etc(1) A person (the offender ) commits an offence if—
(a) the offender—
(i) observes another person with the aid of a device; or
(ii) captures visual data of another person; and
(b) a reasonable person would, in all the circumstances, consider the observing or capturing of visual data to be—
(i) an invasion of privacy; and
(ii) indecent.
Maximum penalty:
(a) for an aggravated offence—250 penalty units, imprisonment for 3 years or both; or
(b) in any other case—200 penalty units, imprisonment for 2 years or both.
(2) Strict liability applies to subsection (1) (b) (i).
(3) Absolute liability applies to subsection (1) (b) (ii).
(4) It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that the defendant—
(a) believed on reasonable grounds that the other person consented to the defendant observing or capturing visual data of the other person; or
(b) did not know, and could not reasonably be expected to have known, that the observing or capturing of visual data of the other person was without consent.
Note The defendant has a legal burden in relation to the matters mentioned in s (4) (see Criminal Code
, s 59).
(5) A person (the offender ) commits an offence if—
(a) the offender observes with the aid of a device or captures visual data of—
(i) another person's genital or anal region; or
(ii) for a female or a transgender or intersex person who identifies as a female—the breasts; and
Example
using a mobile phone to take photos of a woman's underwear under her skirt or down the front of her blouse
(b) a reasonable person would, in all the circumstances, consider the observing or capturing of visual data to be an invasion of privacy.
Maximum penalty:
(a) for an aggravated offence—250 penalty units, imprisonment for 3 years or both; or
(b) in any other case—200 penalty units, imprisonment for 2 years or both.
Note Section 72AA (Aggravated offences—pt 3 offences involving family violence) makes provision in relation to an aggravated offence against this section.
(6) Strict liability applies to subsection (5) (b).
(7) It is a defence to a prosecution for an offence against subsection (5) if the defendant proves that the defendant—
(a) believed on reasonable grounds that the other person consented to the defendant observing or capturing visual data of the other person's genital or anal region or breasts; or
(b) did not know, and could not reasonably be expected to have known, that the observing or capturing of visual data of the other person's genital or anal region or breasts was without consent.
Note The defendant has a legal burden in relation to the matters mentioned in s (7) (see Criminal Code
, s 59).
(8) Subsections (1) and (5) do not apply to—
(a) an observation made by viewing data that was previously captured; or
(b) an observation or capturing of visual data—
(i) by a law enforcement officer acting reasonably in the performance of the officer's duty; or
(ii) by a licensed security provider acting reasonably in carrying on a security activity authorised under the security provider's licence; or
(iii) of a child or other person incapable of giving consent in circumstances in which a reasonable person would regard the observing or capturing of visual data as acceptable; or
Example
taking a photograph or movie of a naked newborn relative
(iv) for a scientific, medical or educational purpose; or
Example
a patient consents to her doctor taking an image of a mole on her breast for the purpose of showing another doctor for a second opinion about the mole
(v) by a person in the course of reasonably protecting premises owned by the person; or
(vi) in circumstances or for a purpose prescribed by regulation.
(9) Nothing in subsection (8) prevents a person being found guilty of an offence under or because of the Criminal Code
, part 2.4 (Extensions of criminal responsibility).
(10) In this section:
"breasts", of a female or a transgender or intersex person who identifies as a female, means the person's breasts whether covered by underwear or bare.
"capture visual data"—a person captures visual data of another person if the person captures moving or still images of the other person by a camera or any other means in such a way that—
(a) a recording is made of the images; or
(b) the images are capable of being transmitted in real time with or without retention or storage in a physical or electronic form; or
(c) the images are otherwise capable of being distributed.
"device" does not include spectacles, contact lenses or a similar device when used by someone with impaired sight to overcome the impairment.
"genital or anal region", of a person, means the person's genital or anal region whether covered by underwear or bare.
"law enforcement officer" means—
(a) a police officer; or
(b) a member of the staff of the Australian Crime Commission established by the Australian Crime Commission Act 2002
(Cwlth).
"licensed security provider" means a person who holds a licence under the Security Industry Act 2003
.
"security activity"—see the Security Industry Act 2003