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Crimes (Intimate Covert Filming) Amendment Bill (Consistent) (Section 14) [2005] NZBORARp 6 (11 March 2005)

Last Updated: 15 September 2020

Crimes (Intimate Covert Filming) Amendment Bill

11 March 2005

Attorney-General

LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990
Crimes (Intimate Covert Filming) Amendment Bill - PCO6256/6
Our Ref: ATT114/1370(2)

1. I have considered the above Bill for consistency with the New Zealand Bill of Rights Act 1990 ("the Bill of Rights"). I advise that the Bill appears to be consistent with the Bill of Rights.
2. The Bill proposes amendments to the Crimes Act 1961 by creating three new offences (cl 3). The three new offences relate to:

2.1 the making of an intimate visual recording;

2.2 the possession of an intimate visual recording; and

2.3 the publishing, importing, exporting, or selling of an intimate visual recording.

3. Intimate visual recording is defined in cl 3. It is a recording such as a photograph, videotape or digital image, taken without the knowledge or the consent of the person who is its subject, and made in a place in which the subject would reasonably expect privacy. The recording must also show the subject as either:

• naked, or having parts of his or her body exposed or partially exposed, or clad solely in undergarments; or
• engaged in intimate sexual activity; or
• engaged in showering, toileting, or other personal bodily activity that involves dressing or undressing.

4. Intimate visual recording also means the non-consensual recording of a person’s naked or undergarment clad genitals, pubic area, buttocks or female breasts, beneath or under a person’s clothing ("up skirt" and "down blouse filming"), or through a person’s outer clothing in circumstances where it is unreasonable to do so (cl 3).
5. Following a conviction for one of these new offences, in addition to passing sentence or making any other order, the Court may order the destruction or impounding of the recording (cl 3).
6. Immunity from liability under the new offences is provided to the subject of the recording and his or her lawyer (cl 3). The Police, Customs officers, officers and employees of the New Zealand Security Intelligence Service, and employees of the Department of Corrections (or other employees exercising powers under the Corrections Act 2004), are also granted immunity from liability provided the recording is made in good faith and is in relation to certain functions prescribed in the Bill (cl 3).

Section 14 BORA Issue

7. These three new offences created by the Bill raise the issue of compliance with s 14 of the Bill of Rights. Section 14 protects the right to "freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind and any form".
8. It is debateable whether criminalising intimate visual recording engages the Bill of Rights, as it would be possible to argue that the act of filming alone does not constitute an "expression". If it does, any limit on s 14 of the Bill of Rights is plainly justified for the reasons set out below.
9. Criminalising the possession and the distribution of intimate visual recordings does constitute a prima facie infringement of s 14 of the Bill of Rights since it has a chilling effect on their receipt or distribution or both. However, such an intrusion is justified in terms of s 5 of the Bill of Rights because society does not place a high value on that kind of expression whereas it does place a high value of on the expectation of privacy in such situations. The public interest in privacy outweighs the limit on freedom of expression created by the new offences.

Disposal and forfeiture

10. For the same reason, in the sense that it might be seen to constitute a kind of censorship, the ability for a Court to order the destruction or impounding of an intimate visual recording (following a conviction) does not breach the Bill of Rights.

Immunities

11. The immunities raise no Bill of Rights issues.

Martha Coleman
Associate Crown Counsel

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Crimes (Intimate Covert Filming) Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.