Criminal Law

Should drones over neighbouring residential properties and making visual recordings of other people without their consent be criminalised?

Crime

1. To understand criminalisation it is essential to define Crime. As there is no unified definition of crime, scholars such as G Williams in the text book of Criminal Law (Steven and Sons, 2nd Ed, 1983) 27, defines crime as “A crime (of offence) is a legal wrong that can be followed by criminal proceeding which may result in punishment”.

2. Oxford dictionary of Law (6th Ed, 2006) 140 defined Crime as an act (or sometimes failure to act) that is deemed by statute or by the common law to be a public wrong and is therefore punishable by the state in criminal proceeding.

Role of the criminal law in

society

Protection from harm

3. Preventing harm is a fundamental element of our lives, whether the type of harm should be prevented was physical, psychological, economic, environmental, social or gendered (Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (Thomson Reuters, 3rd ed, 2010) pp19). Harm could be direct or indirect; many offences in our modern times could have an indirect effect in respect to harm such as the use of hemp for recreational purposes. Harm in the scope of criminalisation is rather the reason to why some acts should not be criminalised rather than criminalised, (Principles of Criminal Law (Thomson Reuters, 3rd ed, 2010)).

Preservation of morality

4. Morality has such a wide meaning that it could be either derived from religious or non religious sources, Ibid. Until this day we still have some influences in our Criminal law from the Cannon law such as such as prostitution mentioned in the Criminal Code Act 1899 Chapter 22. We can also see some other secular moral influences in the same chapter of the Criminal Code. “Lord Devlin assumed that immorality is to be defined and measured according to the strength of feelings of ordinary member of society. If a certain behaviour evokes feelings of intolerance, indignation and disgust among ordinary members of society that is sufficient indication that the behaviour threatens the common morality therefore that is a proper object of the criminal law” (Thomas Crofts and Kelley Burton, The Criminal Codes: Commentary and Materials). On the other hand many immoral acts such as telling lies would not mount to be a criminal behaviour therefore morality at some levels could not be sufficient ground for criminalisation.

Promotion of social welfare

5. Crime could be seen as what should be in the interest of society as a whole. Misconduct against the environment and the criminalisation of that conduct could be seen as within the best interest of society and its welfare. We can also justify the criminalisation of a conduct that could burden our public health system such as the event of an accident without wearing a seatbelt (Simon Bronitt and Bernadette McSherry, Principles of Criminal Law). “Nicola Lacey describes the principle of welfare as including the fulfilment of certain basic interests such as maintaining one’s personal safety, health and capacity to pursue one’s chosen life plan” (Thomas Crofts and Kelley Burton, The Criminal Codes: Commentary and Materials (Thomson Reuters, 6th ed, 2009) pp 32).

Respect of individual autonomy

6. Responsibility of one’s action or omission is one of the aspects of criminalisation and the concept of individual autonomy. It could only be the case assuming that every member of the society is has the capacity and considered to do so under their free will, Ibid.

Flying drones over residential properties while making visual recordings

7.

The Civil Safety Regulation 1998 (CTH) have provided the rules for all air craft. Part 101 was added into the regulation in 2002 which regulates drones until this day. Nothing in the act mentions visual recording made from a flying drone. It provided a guideline for the operation of drones; no drones to be flown over 400ft and it cannot discharge or drop anything that may cause harm. Regulating small drones seems to be a difficult task as Terry Farquharson noted in his speech in 2013.

8. A drone flying over a private land could raise a few causes of action such as trespass to land and private nuisance. In Bernstein V Skyviews & General Ltd it was established that a cause of action for trespass may arise if the trespass happens over the surface of land in its airspace.

9. Justice Gleeson CJ in Lenah Game Meats mentioned that an act could not always be considered private as such due to the fact that it is not been committed in public, for example anyone could be sitting in their own privacy of their backyard and be surrounded by taller buildings they are exposed to the eyes of others. Or another example given if someone is sunbathing nude on a nudist beach the act itself could be seen as a private act done in a public place. Des Butler, ‘The Dawn of the Age of the Drones: An Australian Privacy Law Perspective.

Conclusion

10. The use of drones should be heavily regulated. Just like firearms name and a license should be acquired and also a background check should be acquired for persons that are seeking to own a drone. In the shadow of criminalisation as drones it could be arguable that drones can be harmful to others by obtaining visual images of others and using those photos with malicious intent. In terms of morality drones could be used in the same manner while invading others private properties taking photographs of them and posting those photos with malicious intent online or to be used in a public area where there are nude sunbathers or a paedophile using the drone to obtain photos of young children in playgrounds.

11. A new amendment to the Criminal Code should be added where it can cover the malicious use of drones in general leaving it to the Judge’s discretion to use their common sense when that provision should be applied.