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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Summary Offences Amendment (Upskirting) Bill
2007
TABLE OF PROVISIONS
Clause Page
1 Purpose 1
2 Commencement 2
3 New Division 4A inserted in Part I of the Summary Offences
Act 1966 2
Division 4A--Observation or visual capturing of genital or
anal region 2
40 Definitions 2
41 Location immaterial 3
41A Observation of genital or anal region 4
41B Visually capturing genital or anal region 4
41C Distribution of image of genital or anal region 5
41D Exceptions to offences 5
41E Search warrant 7
41F Seizure of things not mentioned in the warrant 8
41G Announcement before entry 9
4 Repeal of amending Act 9
ENDNOTES 10
561139B.I-20/6/2007 i BILL LA INTRODUCTION 20/6/2007
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Summary Offences Amendment
(Upskirting) Bill 2007
A Bill for an Act to amend the Summary Offences Act 1966 to create
new offences dealing with the unauthorised observation or capturing
of visual images of the genital or anal region of a person's body and
for other purposes.
The Parliament of Victoria enacts:
1 Purpose
The purpose of this Act is to amend the Summary
Offences Act 1966 so as to--
(a) make it an offence in certain circumstances
5 to observe, or capture or distribute visual
images of, the genital or anal region of a
person's body; and
(b) confer power for the issuing of search
warrants.
561139B.I-20/6/2007 1 BILL LA INTRODUCTION 20/6/2007
Summary Offences Amendment (Upskirting) Bill 2007
s. 2
2 Commencement
This Act comes into operation on the day after the
day on which it receives the Royal Assent.
3 New Division 4A inserted in Part I of the Summary
5 Offences Act 1966
See: After Division 4 of Part I of the Summary
Act No.
7405. Offences Act 1966 insert--
Reprint No. 9
as at
14 September "Division 4A--Observation or visual capturing
2005 of genital or anal region
and
amending
10 Act Nos 40 Definitions
16/2004,
97/2005, In this Division--
23/2006,
24/2006, child means a person under the age of
32/2006 and
63/2006. 18 years;
LawToday:
www. device means device of any kind capable of
legislation.
15 vic.gov.au
being used to observe a person's genital
or anal region including--
(a) a mirror; and
(b) a tool when used to make an
aperture; and
20 (c) a ladder--
but does not include spectacles, contact
lenses or a similar device when used by
a person with impaired sight to
overcome that impairment;
25 distribute includes--
(a) publish, exhibit, communicate,
send, supply or transmit to any
other person, whether to a
particular person or not; and
561139B.I-20/6/2007 2 BILL LA INTRODUCTION 20/6/2007
Summary Offences Amendment (Upskirting) Bill 2007
s. 3
(b) make available for access by any
other person, whether by a
particular person or not;
genital or anal region, in relation to a
5 person, means the person's genital or
anal region whether bare or covered by
underwear;
law enforcement officer means--
(a) a member of the police force of
10 Victoria or of any other State or of
the Northern Territory; or
(b) a member of the Australian
Federal Police; or
(c) a member of staff of the
15 Australian Crime Commission
established by the Australian
Crime Commission Act 2002 of
the Commonwealth;
place includes land, premises and a vehicle;
20 visually capture, in relation to a person's
genital or anal region, means capture
moving or still images of that region by
a camera or any other means in such a
way that a recording is made of those
25 images or those images are otherwise
capable of being distributed.
41 Location immaterial
An offence against this Division may be
committed even if the person whose genital
30 or anal region is being observed or visually
captured is in a public place.
561139B.I-20/6/2007 3 BILL LA INTRODUCTION 20/6/2007
Summary Offences Amendment (Upskirting) Bill 2007
s. 3
41A Observation of genital or anal region
A person must not, with the aid of a device,
intentionally observe another person's genital
or anal region in circumstances in which it
5 would be reasonable for that other person to
expect that his or her genital or anal region
could not be observed.
Penalty: 3 months imprisonment.
Notes
10 1 The reasonable expectation test is an objective
one--what would a reasonable person in the
position of the person being observed have
expected.
2 Section 41D(1) sets out exceptions to this
15 offence.
41B Visually capturing genital or anal region
A person must not intentionally visually
capture another person's genital or anal
region in circumstances in which it would be
20 reasonable for that other person to expect
that his or her genital or anal region could
not be visually captured.
Penalty: 2 years imprisonment.
Notes
25 1 The reasonable expectation test is an objective
one--what would a reasonable person in the
position of the person whose genital or anal
region is being visually captured have expected.
2 Section 41D(1) sets out exceptions to this
30 offence.
561139B.I-20/6/2007 4 BILL LA INTRODUCTION 20/6/2007
Summary Offences Amendment (Upskirting) Bill 2007
s. 3
41C Distribution of image of genital or anal
region
A person who visually captures or has
visually captured an image of another
5 person's genital or anal region (whether or
not in contravention of section 41B) must
not intentionally distribute that image.
Penalty: 2 years imprisonment.
Note
10 Section 41D(2) sets out exceptions to this offence.
41D Exceptions to offences
(1) Section 41A or 41B does not apply to an
observation or visual capturing made--
(a) with the express or implied consent of
15 the person whose genital or anal region
is observed or visually captured; or
(b) by accessing the Internet or a
broadcasting service (within the
meaning of the Broadcasting Services
20 Act 1992 of the Commonwealth) or
datacasting service (within the meaning
of that Act); or
(c) by a law enforcement officer acting
reasonably in the performance of his or
25 her duty.
(2) Section 41C does not apply to a distribution
of an image--
(a) for a particular purpose if the person
whose genital or anal region is visually
30 captured (the subject) has expressly or
impliedly consented to the distribution
of the image for that purpose or a
similar purpose; or
561139B.I-20/6/2007 5 BILL LA INTRODUCTION 20/6/2007
Summary Offences Amendment (Upskirting) Bill 2007
s. 3
Example 1
A patient gives consent to doctor A distributing
an image of a mole in her genital region to
another doctor for a second opinion.
5 A distribution by doctor A of the image to a
non-medical friend is not covered by the
exception as the purpose of the distribution is
different.
Example 2
10 A model gives consent to a photographer
distributing an image to magazine A for a
commercial purpose. A distribution by the
photographer of the image to magazine B is
covered by the exception as the purpose of the
15 distribution is the same--commercial.
(b) if--
(i) the subject is a child or other
person incapable of giving
consent; and
20 (ii) the capturing was not made in
contravention of section 41B; and
(iii) in the particular circumstances, a
reasonable person would regard
the distribution of that image as
25 acceptable; or
Example
Emailing by a person of a photograph of a
naked newborn relative to a family member or
friend may not be an offence against section
30 41C because of paragraph (b).
(c) by a law enforcement officer acting
reasonably in the performance of his or
her duty.
Notes
35 1 Sections 68, 69 and 70 of the Crimes Act 1958
set out offences in relation to child pornography.
561139B.I-20/6/2007 6 BILL LA INTRODUCTION 20/6/2007
Summary Offences Amendment (Upskirting) Bill 2007
s. 3
2 Part 6 of the Classification (Publications, Films
and Computer Games) (Enforcement) Act
1995 sets out offences in relation to the
distribution of objectionable material by an on-
5 line information service.
41E Search warrant
(1) A member of the police force of or above the
rank of sergeant may apply to a magistrate
for the issue of a search warrant under this
10 section in relation to a particular place if the
member believes on reasonable grounds that
there is, or may be within the next 72 hours,
in that place evidence of the commission of
an offence against section 41A, 41B or 41C.
15 (2) If the magistrate is satisfied by the evidence
on oath or by affidavit of the applicant that
there are reasonable grounds for suspecting
that that there is, or may be within the next
72 hours, in that place evidence of the
20 commission of an offence against section
41A, 41B or 41C, the magistrate may issue a
search warrant authorising any member of
the police force named in the warrant--
(a) to enter the place, or the part of the
25 place, named or described in the
warrant; and
(b) to search for and seize any thing named
or described in the warrant.
(3) In addition to any other requirement, a
30 search warrant issued under this section must
state--
(a) the offence suspected; and
(b) the place to be searched; and
(c) a description of the thing for which the
35 search is to be made; and
561139B.I-20/6/2007 7 BILL LA INTRODUCTION 20/6/2007
Summary Offences Amendment (Upskirting) Bill 2007
s. 3
(d) any conditions to which the warrant is
subject; and
(e) whether entry is authorised to be made
at any time or during stated hours; and
5 (f) a day, not later than 7 days after the
issue of the warrant, on which the
warrant ceases to have effect.
(4) A search warrant must be issued in
accordance with the Magistrates' Court Act
10 1989 and must be in the form set out in the
regulations under that Act.
(5) Subject to any provision to the contrary in
this Division, the rules to be observed with
respect to search warrants mentioned in the
15 Magistrates' Court Act 1989 extend and
apply to warrants under this section.
41F Seizure of things not mentioned in the
warrant
A search warrant authorises a member of the
20 police force executing the warrant, in
addition to the seizure of any thing of a kind
described in the warrant, to seize any thing
which is not of a kind described in the
warrant if the member believes on
25 reasonable grounds--
(a) that the thing--
(i) is of a kind which could have been
included in a warrant issued under
section 41E; or
30 (ii) will afford evidence about the
commission of an offence against
section 41A, 41B or 41C; and
561139B.I-20/6/2007 8 BILL LA INTRODUCTION 20/6/2007
Summary Offences Amendment (Upskirting) Bill 2007
s. 4
(b) that it is necessary to seize that thing in
order to prevent its concealment, loss or
destruction or its use in the commission
of an offence against section 41A, 41B
5 or 41C.
41G Announcement before entry
(1) Before executing a search warrant, a member
of the police force named in the warrant
must--
10 (a) announce that he or she is authorised by
the warrant to enter the place; and
(b) give any person at the place an
opportunity to allow entry to the place.
(2) The member of the police force need not
15 comply with subsection (1) if he or she
believes on reasonable grounds that
immediate entry to the place is required to
ensure--
(a) the safety of any person; or
20 (b) that the effective execution of the
search warrant is not frustrated.".
4 Repeal of amending Act
This Act is repealed on the first anniversary of its
commencement.
561139B.I-20/6/2007 9 BILL LA INTRODUCTION 20/6/2007
Summary Offences Amendment (Upskirting) Bill 2007
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
561139B.I-20/6/2007 10 BILL LA INTRODUCTION 20/6/2007
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