criminal-law privacy australia
Is it illegal to record an intimate image in Western Australia without consent?
<p>The <a href="https://www.legislation.wa.gov.au/legislation/statutes.nsf/law_a196.html" rel="nofollow noreferrer">Western Australian <em>Criminal Code</em></a> section 221BA defines an “<em>intimate image</em>, of a person” as:</p>
<blockquote>
<p>a still or moving image, in any form, that shows, in circumstances in which the person would reasonably expect to be afforded privacy —</p>
<p>(i) the person’s genital area or anal area, whether bare or covered by underwear; or</p>
<p>(ii) in the case of a female person, or transgender or intersex person identifying as female, the breasts of the person, whether bare or covered by underwear; or</p>
<p>(iii) the person engaged in a private act</p>
</blockquote>
<p>Subsection 221BD(2) defines the offence of <em>distributing</em> an intimate image (without consent). But unlike some other Australian states, the Western Australian <em>Criminal Code</em> does not seem to define an offence of <em>recording</em> an intimate image (I am using the term “record” in a generic sense, to refer to both still and moving images).</p>
<p>A <a href="https://www.watoday.com.au/national/western-australia/upskirting-caught-on-camera-at-perth-supermarket-20171030-gzbd4b.html" rel="nofollow noreferrer">WAtoday story from 2017</a>  described a case where a person allegedly recorded under another person’s skirt without that person’s consent, and was charged with “indecent act in public”. This is an offence defined in section 203 of the <em>Criminal Code</em>:</p>
<blockquote>
<p>A person who does an indecent act —</p>
<p>(a) in a public place or in the sight of any person who is in a
public place; or</p>
<p>(b) in a police station or lock-up,</p>
<p>is guilty of a crime and is liable to imprisonment for 2 years.</p>
</blockquote>
<p>This seems to be a specific case of recording an intimate image without consent; it is not clear whether it generalises to other intimate images, or what the result of the charge was.</p>
<p>Wikipedia <a href="https://en.wikipedia.org/wiki/Upskirt#Australia" rel="nofollow noreferrer">claims</a>:</p>
<blockquote>
<p>All jurisdictions within Australia have passed laws making it illegal to take upskirt photos in public places without the person's consent.</p>
</blockquote>
<p>But it only cites an <a href="https://www.smh.com.au/technology/upskirting-to-become-a-crime-20060729-gdo2at.html" rel="nofollow noreferrer">apparently outdated story</a> about “<em>draft</em> uniform national laws”; the current laws in Australia are certainly not “uniform”.</p>

<h2>Yes, but it’s not in the Criminal Code</h2>
<p>It’s in the <a href="http://www5.austlii.edu.au/au/legis/wa/consol_act/sda1998210/s6.html" rel="nofollow noreferrer">SURVEILLANCE DEVICES ACT 1998</a>. s6 prohibits using an optical surveillance device to record (or observe if the person is not a party) “private activity” without consent. The penalty is a $5,000 fine or imprisonment for 12 months or both.</p>
