Summary Offences (Filming and Sexting Offences) Amendment Act 2016 (SA)

South Australia

Summary Offences (Filming and Sexting Offences) Amendment Act 2016

An Act to amend the Summary Offences Act 1953.

The Parliament of South Australia enacts as follows:

Part 1Preliminary1Short title

This Act may be cited as the Summary Offences (Filming and Sexting Offences) Amendment Act 2016.

2Commencement

This Act will come into operation on a day to be fixed by proclamation.

3Amendment provisions

In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2Amendment of Summary Offences Act 19534Amendment of heading to Part 5A

Heading to Part 5A—after "Filming" insert:

and sexting

5Amendment of section 26A – Interpretation

1. (1)

   Section 26A—after the definition of carriage service provider insert:

   cognitive impairment includes—

   1. (a)

      a developmental disability (including, for example, an intellectual disability, Down syndrome, cerebral palsy or an autistic spectrum disorder);

   2. (b)

      an acquired disability as a result of illness or injury (including, for example, dementia, a traumatic brain injury or a neurological disorder);

   3. (c)

      a mental illness;

2. (2)

   Section 26A, definition of film—delete "moving or still"

3. (3)

   Section 26A—after the definition of humiliating or degrading filming insert:

   image means a moving or still image, and includes an image that has been altered by digital or other means;

4. (4)

   Section 26A, definition of invasive image—delete the definition and substitute:

   invasive image—see subsections (2) and (3);

5. (5)

   Section 26A, definition of private act—after paragraph (a) insert:

   1. (ab)

      an act carried out in a sexual manner or context; or

6. (6)

   Section 26A, definition of private region—after "anal region" insert:

   , or in the case of a female, the breast,

7. (7)

   Section 26A—after its present contents as amended by this section (now to be designated as subsection (1)) insert:

   1. (2)

      For the purposes of this Part, an image of a person will be taken to be an invasive image of the person if it depicts the person in a place other than a public place—

      1. (a)

         engaged in a private act; or

      2. (b)

         in a state of undress such that—

         1. (i)

            in the case of a female—the bare breasts are visible; or

         2. (ii)

            in any case—the bare genital or anal region is visible.

   2. (3)

      However, an image of a person that falls within the standards of morality, decency and propriety generally accepted by reasonable adults in the community will not be taken to be an invasive image of the person.

6Amendment of section 26B – Humiliating or degrading filming

Section 26B(2)—delete "a moving or still" and substitute:

an

7Amendment of section 26C – Distribution of invasive image

Section 26C(1), penalty provision—delete the penalty provision and substitute:

Maximum penalty:

1. (a)

   if the invasive image is of a person under the age of 17 years—$20 000 or imprisonment for 4 years;

2. (b)

   in any other case—$10 000 or imprisonment for 2 years.

8Amendment of section 26D – Indecent filming

1. (1)

   Section 26D(1), penalty provision, (a)—delete "a minor" and substitute:

   under the age of 17 years

2. (2)

   Section 26D(3)—delete "a moving or still" and substitute:

   an

3. (3)

   Section 26D(3), penalty provision, (a)—delete "a minor" and substitute:

   under the age of 17 years

4. (4)

   Section 26D(4)(c)—delete "moving or still"

9Insertion of section 26DA

After section 26D insert:

26DA—Threat to distribute invasive image or image obtained from indecent filming

1. (1)

   A person who—

   1. (a)

      threatens to distribute an invasive image of a person; and

   2. (b)

      intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused,

is guilty of an offence.

Maximum penalty:

1. (a)

   if the invasive image is of a person under the age of 17 years—$10 000 or imprisonment for 2 years;

2. (b)

   in any other case—$5 000 or imprisonment for 1 year.

1. (2)

   A person who—

   1. (a)

      threatens to distribute an image obtained by the indecent filming of a person; and

   2. (b)

      intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused,

is guilty of an offence.

Maximum penalty:

1. (a)

   if the person filmed was under the age of 17 years—$10 000 or imprisonment for 2 years;

2. (b)

   in any other case—$5 000 or imprisonment for 1 year.

1. (3)

   It is a defence to a charge of an offence against subsection (1) or (2) to prove—

   1. (a)

      that—

      1. (i)

         the person filmed consented to that particular distribution of the image the subject of the filming; or

      2. (ii)

         the person consented to distribution of the image the subject of the filming generally; and

   2. (b)

      that the person had not, at the time of the alleged offence, withdrawn consent to the distribution of the image.

2. (4)

   This section applies to a threat directly or indirectly communicated by words (written or spoken) or by conduct, or partially by words and partially by conduct, and may be explicit or implicit.

10Amendment of section 26E – General provisions

1. (1)

   Section 26E(1)(a)—delete "16 years of age or mentally incapacitated" and substitute:

   the age of 17 years or with a cognitive impairment

2. (2)

   Section 26E(3)—delete "moving or still"