Queensland federal MP Andrew Laming has been accused of taking an inappropriate photograph of a young woman, Crystal White, in 2019 in which her underwear was showing. When challenged about the photo this week, he reportedly replied:

it wasn’t meant to be rude. I thought it was funny

Inappropriate photography is a criminal offence in Queensland. Whether or not Laming’s behaviour amounted to an offence for which he could be charged is a matter for the police to determine. (White is reportedly considering taking her complaint to police.)

So, what do the laws say about this kind of behaviour, and what rights to privacy do people have when it comes to indecent photographs taken by others?

What can ‘upskirting’ include?

A new term has entered the lexicon in this regard: “upskirting”. The act of upskirting is generally defined as taking a sexually intrusive photograph of someone without their permission.

It is not a recent phenomenon. There have been incidents in which people (invariably men) have placed cameras on their shoes and photographed “up” a woman’s skirt for prurient purposes. Other instances have involved placing cameras under stairs where women in dresses or skirts were likely to pass by.

The broader category of “upskirting” can also include indecent filming of anyone without their knowledge, including photographing topless female bathers at a public beach, covertly filming women undressing in their bedrooms, or installing a camera in a dressing room, public toilet or a swimming pool changing room.

With every new electronic device that comes on the market comes the possibility of inappropriate use and, thus, the creation of new criminal offences.

We saw that with the advent of small listening devices. With this technology, it was now possible to record private conversations, so legislators had to create offences under the law to deal with any inappropriate use.

The same thing happened with small (and now very affordable) drones, which made it possible to capture images of people in compromising positions, even from a distance. Our laws have been adjusted accordingly.

And in recent years, lawmakers have been faced with the same potential for inappropriate use with mobile phones. Such devices are now ubiquitous and improved technology has allowed people to record and photograph others at a moment’s notice — often impulsively, without proper thought.

How have legislators responded in Australia?

There is a patchwork array of laws across the country dealing with this type of photography and video recording.

In South Australia, for instance, it is against the law to engage in “indecent filming” of another person under part 5A of the state’s Summary Offences Act.

The term “upskirting” itself was used when amendments were made in 2007 to Victoria’s Summary Offences Act. This made it an offence for a person to observe or visually capture another person’s genital region without their consent.

In New South Wales, the law is equally specific in setting out the type of filming that is punishable under the law. It outlaws the filming of another person’s “private parts” for “sexual arousal or sexual gratification” without the consent of the person being filmed.

Queensland’s law, meanwhile, makes it an offence to:

observe or visually record another person, in circumstances where a reasonable adult would expect to be afforded privacy […] without the other person’s consent

Interestingly, the Queensland law is more broadly worded than the NSW, Victorian or South Australian laws since it makes it an offence to take someone’s picture in general, rather than specifying that it needs to be sexually explicit.

The maximum penalty for such an offence in Queensland is three years’ imprisonment.

What would need to be proven for a conviction

Just like any criminal offence, the prosecution in a case like this must first determine, before laying a charge, whether there’s enough evidence that could lead to a conviction and, moreover, whether such a prosecution is in the public interest.

Once the decision to charge is made, a conviction will only be possible if the accused pleads guilty or is found guilty beyond reasonable doubt. (Being a misdemeanour, this could only be by a magistrate, not a jury.)

The role of the criminal law here is to bring offending behaviour to account while also providing a deterrent for the future conduct of that person or any other persons contemplating such an act.

As with any criminal law, its overarching purpose is to indicate society’s disdain for the behaviour. The need to protect victims from such egregious and lewd behaviour is an important consideration too.

Any decision by a Queensland magistrate to convict a person alleged to have taken an indecent photo would hang on three facts:

• whether the photo was taken by the person accused

• whether the victim believed she should have been afforded privacy

• and whether she offered no consent to have the photo taken.

Other mitigating factors might come into play, however, including whether the photograph was impulsive and not premeditated, whether the image was immediately deleted, and whether the alleged offender showed any regret or remorse for his actions.

Recently a Queensland man, Justin McGufficke, pleaded guilty to upskirting offences in NSW after he took pictures up the skirts of teenage girls at a zoo while they were looking at animals.

In another case, a conviction for upskirting was deemed sufficient to deny a man permission to work with children in Victoria.

In a moment of impulsivity — and with the easy access of the mobile phone — anything can happen in today’s world. Poor judgements are common. Women are invariably the targets.

The laws on filming, recording and in some cases distributing the images of another person are clear — and the potential consequences for the accused are substantial. One would hope that any potential offenders are taking note.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

CCTV cameras mounted on vans have recently been seen in public parks around Melbourne, ostensibly to nab anyone breaking lockdown rules. They are part of a joint initiative between several Melbourne councils, Victoria Police and the Commonwealth government.

Coming on the back of Victorian police arresting and charging a number of people for inciting others to break bans on public gatherings by protesting in the streets, there is likely to be widespread resentment to the presence of these mobile surveillance units.

Many people are already claiming the Victorian government has once again over-stepped the mark in its aggressive approach to suppressing COVID-19.

From Wuhan to NYC to Melbourne, us health & human rights lawyers use the phrase “least restrictive measure necessary to achieve the public health outcome”. Public health also needs public trust. Victorians have done a brilliant job: mobile surveillance units are disproportionate. https://t.co/u4hmRxnL8Z

— Dr Alexandra Phelan (@alexandraphelan) September 7, 2020

These mobile units are not new, though. They were introduced in 2018 to help combat crime. They are not cheap, either. The cost to purchase and operate four of the units has been estimated at $3.6 million.

But what are the laws around public surveillance of people going about their daily business or recreational activities outdoors?

Let me tackle this question by posing four related questions:

• are the cameras legal?

• are such surveillance tools effective?

• are these measures acceptable in a vibrant democracy?

• what protections should be put in place?

Are the cameras legal?

It needs to be stated at the outset the Constitution does not include any specific rights related to privacy. And the High Court suggested two decades ago that privacy was unlikely to be protected under common law.

The Victorian Charter of Human Rights, however, contains a provision that states people have the right not to have their

privacy unlawfully or arbitrarily interfered with.

But a lawfully installed camera designed to deter offending would not, on its face, defy the terms of the charter.

International law, too, provides some privacy protections. In 1991, Australia signed the International Covenant on Civil and Political Rights, which states

no one should be subjected to arbitrary or unlawful interference with his privacy.

However, Australian parliaments have introduced few laws to enshrine these protections. The legislation that has been enacted has largely been limited to curtailing the use of privately monitored listening and surveillance devices and preventing governments and big business from sharing citizens’ private information.

The Australian Law Reform Commission has issued clarion calls to extend these protections in recent years, but these efforts continue to gather dust.

So, it should not be surprising that mobile CCTV cameras driven to and stationed in public places are perfectly legal.

Moreover, so-called “unmanned airborne vehicles” (UAVs), more commonly known as drones, are regularly deployed by police for surveillance purposes, too.

Both of these surveillance tools are backed by regulatory force at all three levels of government.

Are these surveillance tools effective?

Proponents of these mobile surveillance units argue the perceived risks to privacy and heavy investment are worth it, given the social disorder they prevent and the help they provide police in solving crimes.

However, there is much research now that casts doubt on this assumption.

In one study in 2009, for instance, CCTV cameras were only found to reduce crime by 16% overall (and by only 7% in city and town centres and public housing communities).

The efficacy of these surveillance units in a health emergency has yet to be proven. The cameras would seem to be most useful in providing police with information regarding who is using the parks, and perhaps providing something of a deterrent to those who might consider breaching lockdown restrictions, but not much more.

Are these measures acceptable?

Yes and no. On the one hand, there is no doubt people want the coronavirus restrictions to end. And if these units deter people from breaking lockdown rules, and this, in turn, helps bring the new case numbers down more quickly, people may accept the intrusion in their lives.

On the other hand, some are understandably alarmed at the increasing use of surveillance tools by authorities — dubbed “uberveillance” by sociologists.

Even advocates for civil liberties appear ambivalent about the curtailment of some basic rights during the pandemic.

Liberty Victoria President Julian Burnside, who has been a fierce defender of privacy rights, surprised many by telling The Age,

It all sounds pretty sensible to me. … We are in a war against the coronavirus, and when you’re in a war with anything, restrictions on your otherwise normal liberties are justifiable.

Liberty Victoria quickly sought to distance itself from the comments.

What protections should be put in place?

There is no doubt parliaments are the most appropriate bodies to determine the extent to which individuals can be subjected to lawful public surveillance.

Indeed, former High Court judge Michael Kirby argues the legislative arm of government needs to step up to the task of scrutinising emergency powers with more vigour.

Otherwise it simply becomes a tame servant of the executive, which is a common weakness of parliamentary democracies of the Westminster system.

But parliaments will only respond if citizens demand this of them, and there are very few signs of that at the moment.

In the meantime, there are a number of legal tweaks that should be undertaken to ensure the government’s spying on the public domain is appropriately measured:

1. we need to ensure the images and other data that are collected by surveillance units are stored appropriately and discarded quickly when no longer needed

2. we need to be able to hold police and other surveillance operators to account for any excesses in the manner in which images are gathered and shared

3. there needs to be a new legal remedy in the event there is a serious invasion of privacy by the inappropriate use or disclosure of images collected by surveillance devices.

True, we have the Office of the Australian Information Commissioner constantly reminding governments of the concerns associated with threats to privacy.

But without civic push-back, little will change. Parliamentarians are unlikely to limit the powers of the executive to allow mobile surveillance units to be parked in public places unless it becomes politically unpopular. One can but wonder when this tipping point may be reached.

This article is republished from The Conversation under a Creative Commons license. Read the original article.