2017
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)
(Caroline Le Couteur)
Crimes (Invasion of Privacy) Amendment Bill 2017

Contents
	Page
	1	Name of Act	2
	2	Commencement	2
	3	Legislation amended	2
	4	Offences against Act—application of Criminal Code etc
Section 7A, note 1	2
	5	Section 7A, note 1	2
	6	Intimate observations or capturing visual data etc
Section 61B	2
	7	New section 66A	3
	8	Section 67 heading	3
	9	Section 67 (1)	4
	10	Section 67 (3)	5
	11	New section 67 (4)	5
	12	New part 3A	6
	13	Dictionary, note 2	18
	14	Dictionary, new definitions	18

2017
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)
(Caroline Le Couteur)
Crimes (Invasion of Privacy) Amendment Bill 2017

A Bill for
An Act to amend the Crimes Act 1900

    

The Legislative Assembly for the Australian Capital Territory enacts as follows:

1	Name of Act
This Act is the Crimes (Invasion of Privacy) Amendment Act 2017.
2	Commencement
This Act commences on the day after its notification day.
Note	The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).
3	Legislation amended
This Act amends the Crimes Act 1900.
4	Offences against Act—application of Criminal Code etc
Section 7A, note 1
omit
·	section 61B (Intimate observations or capturing visual data etc)
5	Section 7A, note 1
insert
·	section 72C (Non-consensual intimate observations etc)
·	section 72D (Non-consensual distribution of intimate images or documents)
·	section 72F (Threat to capture or distribute intimate image or document)
·	section 72G (Court may order rectification)
6	Intimate observations or capturing visual data etc
Section 61B
omit
7	New section 66A
insert
66A	Consenting young people—exception to s 64, s 65 and s 66 offences
	(1)	This section applies to an offence under the following provisions:
	(a)	section 64 (1);
	(b)	section 65 (1);
	(c)	section 66 (1);
	(d)	section 66 (2).
	(2)	The provision does not apply to a person if—
	(a)	the child or young person the subject of the offence was 10 years old or older at the time of the offence; and
	(b)	there is not more than 2 years difference in age between the person and the child or young person; and
	(c)	the child or young person consented to the act constituting the offence.
Note	For offences against s 64 (1) and s 65 (1), the defendant has an evidential burden in relation to the above matters (see Criminal Code, s 58).
8	Section 67 heading
substitute
67	Meaning of consent—sexual offence consent provisions
9	Section 67 (1)
substitute
	(1)	For a sexual offence consent provision, consent of a person to an act mentioned in the provision by another person means—
	(a)	the person gives free and voluntary agreement; and 
	(b)	the other person—
	(i)	knows the agreement was freely and voluntarily given; or
	(ii)	is satisfied on reasonable grounds that the agreement was freely and voluntarily given.
	(1A)	Without limiting the grounds on which it may be established that consent is negated, the consent of an act mentioned in a sexual offence provision is negated if that consent is caused by—
	(a)	the infliction of violence or force on the person or on a third person who is present or nearby; or
	(b)	a threat to inflict violence or force on the person or on a third person who is present or nearby; or
	(c)	a threat to inflict violence or force on, or to use extortion against, the person or another person; or
	(d)	a threat to publicly humiliate or disgrace, or to physically or mentally harass, the person or another person; or
	(e)	the effect of intoxicating liquor, a drug or an anaesthetic; or
	(f)	a mistaken belief as to the identity of the other person; or
	(g)	a mistaken belief as to the nature of the act, whether by fraud, deceit or failure to provide reasonable information about the nature of the act; or
	(h)	a fraudulent misrepresentation of any fact made by the other person, or by a third person with the knowledge of the other person; or
	(i)	the abuse by the other person of the other person’s position of authority over, or professional or other trust in relation to, the person; or
	(j)	the person’s physical helplessness or mental or cognitive incapacity to understand the nature of the act in relation to which the consent is given; or
	(k)	the unlawful detention of the person.
10	Section 67 (3)
omit
subsection (1) (a) to (j)
substitute
subsection (1A)
11	New section 67 (4)
insert
	(4)	In this section:
sexual offence consent provision means any of the following:
	(a)	section 54;
	(b)	section 55 (3) (b);
	(c)	section 60;
	(d)	section 61 (3) (b);
	(e)	section 66A (2) (c).
12	New part 3A
insert
Part 3A	Invasion of privacy
72A	Definitions—pt 3A
	(1)	In this part:
capture, an image or document—a person captures, an image or document of another person if the person captures an image or document of the other person by any means in such a way that—
	(a)	a recording is made of the image or document; or
	(b)	the image or document is capable of being transmitted in real time with or without retention or storage in a physical or electronic form; or
	(c)	the image or document is otherwise capable of being distributed.
device does not include spectacles, contact lenses or a similar device when used by someone with impaired sight only to overcome the impairment.
distribute—
	(a)	includes—
	(i)	communicate, share, show, exhibit, send, supply, upload or transmit; and
	(ii)	make available for access by another person; but
	(b)	does not include distribution by a person solely in the person’s capacity as an internet service provider, internet content host or a carriage service provider.
Examples—par (a)
1	if an intimate image is on a mobile phone, showing the phone with the image displayed on it to another person
2	printing an intimate image and putting it up on a community notice board
Note	An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
engaged in a private act means—
	(a)	in a state of undress; or
	(b)	using the toilet, showering or bathing; or
	(c)	engaged in an act of a sexual nature; or
	(d)	in a position, pose or scenario of a sexual nature or context that a reasonable person would not expect to be made public.
intimate image or document, in relation to a person—
	(a)	means an image or other document that shows, visually or otherwise—
	(i)	the person’s genital or anal region whether covered by underwear or bare; or
	(ii)	for a female, or a transgender or intersex person who identifies as a female—the person’s breasts whether covered by underwear or bare; or
	(iii)	the person engaged in a private act; and
	(b)	includes an image or document, in any form, that has been altered to appear to show any of the things mentioned in paragraph (a).
Examples—document
1	an email
2	a text message or other forms of electronic private messaging
3	an audio recording 
	(2)	For subsection (1), definition of distribute, a person is taken to have distributed an image or document whether or not the image or document is viewed or accessed, or is capable of being viewed or accessed, by another person.
	(3)	For subsection (1), definition of engaged in a private act, whether an individual is engaged in a private act depends on the individual’s circumstances.
Examples—individual’s circumstances for state of undress
·	for a person with disability—parts of the person’s body that are normally covered being uncovered
·	for a person with cultural or religious beliefs that require certain kinds of body coverings—the person not wearing the covering
·	for a transgender person—parts of the person’s body that the person considered to be markers of the person’s previous gender that are normally covered being uncovered
72B	Meaning of consent—pt 3A
	(1)	For this part, consent of a person to an intimate act by another person, means—
	(a)	the person gives free and voluntary agreement; and
	(b)	the other person—
	(i)	knows the agreement was freely and voluntarily given; or
	(ii)	is satisfied on reasonable grounds that the agreement was freely and voluntarily given.
	(2)	Without limiting the grounds on which it may be established that consent is negated, the consent of a person to an intimate act by another person is negated if that consent is caused by—
	(a)	the infliction of violence or force on the person or on a third person who is present or nearby; or
	(b)	a threat to inflict violence or force on the person or on a third person who is present or nearby; or
	(c)	a threat to inflict violence or force on, or to use extortion against, the person or another person; or
	(d)	a threat to publicly humiliate or disgrace, or to physically or mentally harass, the person or another person; or
	(e)	the effect of intoxicating liquor, a drug or an anaesthetic; or
	(f)	a mistaken belief as to the identity of the other person; or
	(g)	a mistaken belief as to the nature of the act, whether by fraud, deceit or failure to provide reasonable information about the nature of the act; or
	(h)	a fraudulent misrepresentation of any fact made by the other person, or by a third person with the knowledge of the other person; or
	(i)	the abuse by the other person of the other person’s position of authority over, or professional or other trust in relation to, the person; or
	(j)	the person’s physical helplessness or mental or cognitive incapacity to understand the nature of the act in relation to which the consent is given; or
	(k)	the unlawful detention of the person.
	(3)	Also, a person does not consent to an intimate act by another person only because the person—
	(a)	consented to the intimate act on another occasion; or
	(b)	consented to the intimate act being done by someone else; or
	(c)	consented to the intimate act being done in another way to the way the intimate act was done by the other person; or
	(d)	for the distribution of an intimate image or document—distributed the image or document to another person.
	(4)	If a person consented to an intimate act by another person during an intimate relationship with the other person and the relationship ends, consent is taken to have been withdrawn when the relationship ended.
	(5)	If a young person consents to an intimate act by another young person and there is not more than 2 years difference in age between the young people, consent is not negated only because of the young people’s age.
Example
a 15 year old and a 14 year old consensually exchanging intimate images of each other by text message
Note	An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
	(6)	If it is established that a person who knows the consent of another person to an intimate act has been caused by any of the means set out in subsection (2), the person is taken to know that the other person does not consent to the intimate act.
	(7)	In this section:
intimate act, by a person (X) in relation to another person (Y), means—
	(a)	the observation, or capture of an intimate image or document by X of Y; or 
	(b)	the distribution by X of an intimate image or document relating to Y.
young person means a child 10 years old or older but younger than 16 years old.
72C	Non-consensual intimate observations etc
	(1)	A person (the offender) commits an offence if—
	(a)	the offender observes with the aid of a device, or captures an intimate image or document of, another person (the affected person); and
	(b)	a reasonable person would, in all the circumstances, consider the observation or capture to be an invasion of the affected person’s privacy.
Maximum penalty:  200 penalty units, imprisonment for 2 years or both.
Examples—par (a)
1	using binoculars
2	using a remotely-controlled drone
3	using a ladder
4	using a mobile phone to photograph a woman’s underwear under her skirt or down the front of her blouse
Note	An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
	(2)	Strict liability applies to subsection (1) (b).
72D	Non-consensual distribution of intimate images or documents
	(1)	A person (the offender) commits an offence if—
	(a)	the offender distributes an intimate image or document relating to another person (the affected person); and
	(b)	a reasonable person would, in all the circumstances, consider the distribution of the intimate image or document to be an invasion of the affected person’s privacy.
Maximum penalty:  200 penalty units, imprisonment for 2 years or both.
Examples—par (a)
1	a person posts an image of another person engaged in sexual activity on a social media website without the other person’s consent
2	a person digitally alters an image of a person’s face onto another person’s body and the altered image is uploaded onto a pornographic website 
3	a person texts an image of an ex-partner who is naked to the ex-partner’s new partner
4	a person shares an image on a ‘revenge porn’ website of another person engaged in sexual activity when it is reasonable to assume that the other person in the image did not consent to the image being posted on the site 
Note	An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
	(2)	Strict liability applies to subsection (1) (b).
72E	Exceptions to offences—s 72C and s 72D
	(1)	Section 72C (1) does not apply to—
	(a)	an observation of an image or document that was previously captured; or
	(b)	an observation or capture of an image or document—
	(i)	by a person who believed on reasonable grounds that the affected person consented to the observation or capture; or
	(ii)	by a person who did not know, and could not reasonably be expected to have known, that the observation or capture was without the affected person’s consent; or
	(iii)	by a law enforcement officer acting reasonably in the performance of the officer’s duty; or
	(iv)	by a licensed security provider acting reasonably in carrying on a security activity authorised under the security provider’s licence; or
	(v)	of a child or other person incapable of giving consent in circumstances in which a reasonable person would regard the observation or capture as acceptable; or
	(vi)	for a scientific, medical or educational purpose; or
	(vii)	by a person in the course of reasonably protecting premises owned by the person; or
	(viii)	if a reasonable person would consider the observation or capture acceptable having regard to the following:
	(A)	the nature and content of the observation, image or document;
	(B)	the circumstances in which the observation or capture occurred;
	(C)	the age, intellectual capacity, vulnerability or other relevant circumstances of the affected person;
	(D)	the extent to which the observation or capture invaded the affected person’s privacy; or
	(ix)	in circumstances or for a purpose prescribed by regulation.
Example—subpar (v)
taking a photograph or movie of a naked newborn relative
Example—subpar (vi)
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
Note 1	The defendant has an evidential burden in relation to the matters mentioned in s (1) (see Criminal Code, s 58).
Note 2	An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
	(2)	Section 72D (1) does not apply to the distribution of an intimate image or document—
	(a)	by a person who believed on reasonable grounds that the affected person consented to the distribution; or
	(b)	by a person who did not know, and could not reasonably be expected to have known, that the distribution was without the affected person’s consent; or
	(c)	by a law enforcement officer acting reasonably in the performance of the officer’s duty; or
	(d)	for a lawful and common practice of law enforcement, criminal reporting or a legal proceeding; or
	(e)	for the purpose of reporting unlawful conduct to a law enforcement officer; or
	(f)	for a scientific, medical or educational purpose; or
	(g)	in the public interest; or
	(h)	if a reasonable person would consider the distribution acceptable having regard to the following:
	(i)	the nature and content of the document;
	(ii)	the circumstances in which the document was distributed;
	(iii)	the age, intellectual capacity, vulnerability or other relevant circumstances of the affected person;
	(iv)	the extent to which the distribution invaded the affected person’s privacy; or
	(i)	in circumstances or for a purpose prescribed by regulation.
Example—par (a)
A person takes part in a public art event in which participants are naked. A news broadcaster publishes an image of the naked person participating in the event.
Example—par (f)
a doctor providing medical advice to a female patient about a mole on the patient’s breast emails an image of the mole to another doctor for a second opinion 
Note 	The defendant has an evidential burden in relation to the matters mentioned in s (2) (see Criminal Code, s 58).
	(3)	Nothing in this section prevents a person being found guilty of an offence under or because of the Criminal Code, part 2.4 (Extensions of criminal responsibility).
	(4)	In this section:
affected person—
	(a)	in relation to an offence against section 72C (1)—see section 72C (1) (a); or
	(b)	in relation to an offence against section 72D (1)—see section 72D (1) (a).
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, section 7.
72F	Threat to capture or distribute intimate image or document
	(1)	A person (the offender) commits an offence if—
	(a)	the offender threatens a person (the threatened person) to capture or distribute an intimate image or document relating to the threatened person or another person (an affected person); and
	(b)	a reasonable person would, in all the circumstances, consider the capture or distribution of the intimate image or document to be an invasion of the affected person’s privacy if the threat was carried out; and
	(c)	the offender made the threat—
	(i)	intending the threatened person to fear that the threat would be carried out; or
	(ii)	being reckless about whether or not the threatened person would fear that the threat would be carried out.
Maximum penalty:  200 penalty units, imprisonment for 2 years or both.
	(2)	In a prosecution for an offence against this section—
	(a)	a threat may be made by any conduct whether explicit, implicit, conditional or unconditional; and
	(b)	it is not necessary to prove that the other person actually feared that the threat would be carried out; and
	(c)	a person may be found guilty even if carrying out the threat is impossible.
Examples—par (c)
1	the image or document does not exist
2	the image or document is not in the possession or control of the offender 
3	technical limitations prevent the offender from capturing or distributing the image or document
Note	An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
72G	Court may order rectification
	(1)	This section applies if a person is found guilty of an offence against section 72C or section 72D.
	(2)	The court may order the person to take reasonable action to remove, retract, recover, delete or destroy an intimate image or document involved in the offence within a stated period.
	(3)	The person commits an offence if the person fails to comply with the order.
Maximum penalty:  200 penalty units, imprisonment for 2 years or both.
72H	DPP’s approval for prosecution of children 
	(1)	A prosecution of a person under the age of 18 years for an offence against section 72C, section 72D or section 72F must not be commenced without the DPP’s approval.
	(2)	In this section:
DPP means the director of public prosecutions appointed under the Director of Public Prosecutions Act 1990.
13	Dictionary, note 2
insert
·	document
14	Dictionary, new definitions
insert
capture, an image or document, for part 3A (Invasion of privacy)—see section 72A.
consent—
	(a)	for sections 54, 55 (3) (b), 60, 61 (3) (b) and 66 (2) (c)—see section 67 (1); or
	(b)	for part 3A (Invasion of privacy)—see section 72B (1).
device, for part 3A (Invasion of privacy)—see section 72A.
distribute, for part 3A (Invasion of privacy)—see section 72A.
engaged in a private act, for part 3A (Invasion of privacy)—see section 72A.
intimate image or document, in relation to a person, for part 3A (Invasion of privacy)—see section 72A.

Endnotes
1	Presentation speech
	Presentation speech made in the Legislative Assembly on 2 August 2017.
2	Notification
	Notified under the Legislation Act on	2017.
3	Republications of amended laws
	For the latest republication of amended laws, see www.legislation.act.gov.au.

© Australian Capital Territory 2017