What is ‘Upskirting’ in Qld?
What happens if you are charged with observations or recordings in breach of privacy in Qld?
In Queensland, it is a criminal offence to observe or visually record another person’s private genital or anal region without consent.
This offence is most often associated with ‘upskirting’ or ‘voyeuristic recording’, for example, using a mobile phone to take photos under a person’s clothing in a public place.
Our Brisbane criminal lawyers have extensive experience representing clients charged under section 227A of the Criminal Code 1899 (Qld). These matters often require not only careful legal strategy but also sensitivity to privacy and reputational issues, as they can attract media attention, particularly when alleged to have occurred in public or commercial settings such as shopping centres.
What is ‘observations or recordings in breach of privacy’?
Under section 227A of the Criminal Code 1899 (Qld), a person commits an offence if they:
Observe or visually record another person in circumstances where a reasonable adult would expect privacy, and
Do so without that person’s consent, and
The other person is either:
In a private place, or
Engaging in a private act, or
The observation or recording is made for the purpose of capturing the person’s genital or anal region (whether bare or covered only by underwear).
The maximum penalty is three years imprisonment.
The law specifically targets situations where a person’s reasonable expectation of privacy has been breached. The legislation defines ‘consent’ as a free and voluntary agreement by someone with the cognitive capacity to make that agreement.
What are examples of observations or recordings in breach of privacy?
Examples of conduct that may lead to a charge under section 227A include:
Taking photographs or videos under a person’s skirt or dress in public;
Recording someone changing in a gym or communal change room; or
Filming a person engaged in a private act such as using a toilet or showering without consent.
However, the context is crucial, not every photograph or video amounts to a criminal offence. The prosecution must prove the specific legal elements beyond reasonable doubt.
How to defend observations or recordings in breach of privacy possible defences
There are several technical and evidentiary issues that commonly arise in these matters:
Proof of lack of consent: In many cases, the person depicted may not be identifiable, or police may not have obtained a statement from them. This can make it difficult for the prosecution to prove the element of ‘without consent.’
Content of the image or video: The footage must actually depict the genital or anal region, as defined in the Act. If the image is blurred, shadowed, or shows clothing such as bike shorts rather than underwear, the charge may not be made out.
Intention and purpose: The prosecution must prove that the image or recording was made for the purpose of observing or recording a private region.
Because these elements are precise, there is often scope for negotiation with the prosecution, including reducing or discontinuing charges where the evidence does not meet the legal threshold.
Will I go to prison for observations or recordings in breach of privacy in Qld?
When the charge is proven, the court considers factors such as the number of images, the context in which they were taken, and the person’s character and level of remorse.
One legal strategy is that reducing the number of photographs or videos accepted by the court can have a major impact on the penalty, it can mean the difference between a fine or probation versus imprisonment, or between a conviction being recorded or not recorded.
Our approach involves preparing strong submissions, supporting material, and addressing rehabilitation, privacy, and reputation concerns to minimise the impact of the proceedings.
Why early legal advice matters
These cases can be complex both legally and personally. Many clients are first-time offenders who are deeply embarrassed and anxious about the effect on their reputation, employment, and family.
Our experienced criminal defence lawyers handle these matters with discretion and care. We will:
Analyse the images and prosecution evidence in detail,
Advise on potential defences and negotiation options,
Manage any publicity or reputational concerns, and
Prepare comprehensive submissions to achieve the best possible outcome.
Choosing the best criminal defence lawyer in Brisbane
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📞 Speak to our leading Brisbane Criminal Lawyers on (07) 3012 6531 for a confidential discussion about your case. You can also request a confidential callback by filling in our Quick Enquiry form, which also includes access to our free guide 16 Things You Need to Do Now if Charged with a Criminal Offence.
The information provided is general in nature and does not constitute legal advice. Please contact our Brisbane criminal lawyers for specific advice about your case.
Last updated November 2025