Criminal Law Consolidation (Stalking and Harassment) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 28 November 2024.)

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence) (11:02): Thank you very much, Mr Speaker, and happy new year to you, and to everybody here. I recall that at the conclusion of our last discussion about this bill that I was in the midst of closing remarks. I certainly do not propose to continue for too long with those closing remarks. Rather, I will, again, say thank you to all of those who have contributed very thoughtfully to this debate in a really heartfelt way, with some of those contributions providing horrific examples about the conduct to which this bill pertains, so thank you very much to the member for Gibson and the member for Florey. Again, I particularly acknowledge the awful example that the member for Gibson provided, and I also say thank you to the member for Heysen for his contribution.

As all of these speeches on the bill have canvassed, this is a really important bill for a number of reasons. Firstly, it again sends a message to our community that our state does not stand for any form of stalking or harassment, that we are determined to prevent any forms of disrespect and violence toward women and all people. Again, this bill sends a very important message about our state's commitment to that.

Secondly, it contemporises what we understand stalking and harassment to be. It is incredibly important in all areas of our work in preventing, responding to, intervening in and providing recovery and healing around experiences of violence that we always contemplate the current context in which we find ourselves and this bill is about doing just that. It ensures that, sadly as they need to, our laws will now consider those new insidious ways that perpetrators find to harass and stalk those whom they seek to harm.

For those two reasons, again, sending that message to our community about what our state stands for and ensuring that we have the most contemporary laws in place in which we can expand that definition of what constitutes this behaviour is incredibly important. That is exactly what this bill does. With those few short remarks, I commend this bill to the house.

Bill read a second time.

Committee Stage

In committee.

The CHAIR: Member for Heysen, which clause would you like to start off with?

Mr TEAGUE: There are discrete questions and I think they can be contained to clause 4.

Clauses 1 to 3 passed.

Clause 4.

Mr TEAGUE: I think I might have given an indication in the course of my second reading contribution of some discrete issues that have been raised by the Aboriginal Legal Rights Movement and by the Law Society, the first of which is raised by both of them. I deal firstly with the issue that has been raised by both: that is the introduction of an objective test, the reasonable person test that we see, the subject of the amendment at subclause (8).

The ALRM captures it I think most concisely, indicating criminal provisions about action and intent. I might just indicate the words of chief executive Chris Larkin in his letter, at least to me—and I expect in similar terms to the government—dated 1 October where he states:

Criminal law is based on act and intent. In our view, the term 'ought reasonably to have known' has no place in the context of a serious offence leading to incarceration. This is particularly so where there is likely to be an overrepresentation of Aboriginal defendants who are of a different language and culture to those of the police charging and courts convicting on a subjective 'reasonable person' test.

The proposal of the ALRM is to replace with 'recklessly indifferent' instead. Perhaps in the circumstances of those representations having been made, I just put the question to the government in terms of its consideration of that particular matter and why it has favoured the application of the reasonable person test.

The Hon. K.A. HILDYARD: I thank the member for the question. I certainly welcome the views of the ALRM and Mr Larkin and assure them that we have thoroughly considered those views. We have landed with the clause that we have for a couple of reasons. Firstly, because obviously, as is always important to do, we have considered this particular matter in the context of what other jurisdictions do, and certainly this provision is consistent with a number of other jurisdictions, but also we are of the view that the provisions around 'ought reasonably to have known' would indeed take account of a particular context and a particular set of circumstances.

Mr TEAGUE: I take that then just one step further in that it deals with the second part of the ALRM's proposal seeking to ensure—the ALRM styles it by way of legislative guidance—measures to ensure that courts take into account the realities, and I am quoting here from the second part of the proposal:

…the realities for Aboriginal and Torres Strait Islander peoples in considering any reasonableness tests, any imputed intentions and any notions of recklessness.

I invite the minister to add anything about what further steps the government might take in that regard, if any.

The Hon. K.A. HILDYARD: I think we are in alignment here in terms of the intention of the government with that provision, as I articulated in my earlier answer, to take account of those contexts and circumstances. As the member is well aware, of course, in any particular hearing, etc., on a matter pertaining to an alleged breach of this act, through submissions, etc., a person's particular context and circumstances will be taken account of.

Mr TEAGUE: I now, then, turn to the issue that has been more particularly addressed by the Law Society, and this time it is by way of a letter to the Attorney dated 12 June 2024. As I said at the outset, the Law Society also addresses the reasonable person test and adopts a view in line with the ALRM in that regard. The Law Society also addresses concern about the threshold in terms of seriousness. I won't stay to address that further, but the government has certainly made clear that it has charted a course in that regard.

The point I would raise is that in the final couple of paragraphs of the President's letter to the Attorney, which really encapsulate paragraph 17, the Criminal Law Committee has suggested that conduct that is otherwise caught by this now broadened provision be subject to an express defence around a reason for doing so, the way the Law Society has described that as a reasonable excuse. And one might say that common sense ought to prevail, and we know that there are all sorts of circumstances in which means, electronic and otherwise, are used to monitor family members, and so on.

I just highlight in particular the Law Society's concern that we are talking about criminal provisions that have tests that are the subject of the legislation and, without express reference to a defence of this kind, it may be that there are these unintended consequences that on the face would constitute the offence without catching the intended conduct. So I just give the government an opportunity to address that for the purpose of the record and the committee.

The Hon. K.A. HILDYARD: Thank you to the member for his question. I think it goes to an issue that I could speak for days about; I will not. But I think what the member highlights is that in relation to this particular piece of legislation, but also any legislation, with any policy discussion that we are currently having as a state, and indeed globally, we are constantly in this new environment where we are balancing the very positive things that new technologies can do, that they can provide, the ways that we can access information, the ways that we can stay connected to people. We are constantly balancing and deepening our understanding—and I am saying this in a much broader context than this bill—about those important opportunities technology can provide with the fact that it also creates risk in terms of how it can be used to harm people.

So I think the area that the member has touched upon is very important, and it is one that I have no doubt whatsoever in the course of community debate about all sorts of issues we will continue to contemplate. On that note, I congratulate the new assistant minister in our government, Mr Michael Brown, who will focus, I am sure, in his duties around artificial intelligence and digital economy about how we continue in every area of life to get that balance right. I congratulate him again on his elevation and I look forward to working alongside him around these opportunities but also some of the worries that this access to information and technology create.

I welcome the Law Society's submission; I thank them for it. What I would say more specifically in relation to clause 4(8) is that, with the example that the member gave, amongst a family with everybody consenting, should they be connected with each other through their technology and know where each other is and there is absolute consent about that, as long as there is that consent, as long as everybody is happy to be part of that technological environment, it would be less likely that that would cause physical or mental harm or serious apprehension or fear.

What this particular clause assists us with is those circumstances where the technology is not used for that purpose that the member spoke about that I have just spoken about further, but rather where it is used in a way that will cause that physical or mental harm or serious apprehension or fear. So, in terms of the unintended consequences question, in that context in a family where there is that consent, where everybody is part of that particular technology, where everyone is communicating in that way, I cannot see that that would cause serious apprehension or fear or physical or mental harm, unless there was something else going on, and of course we want to capture that particular behaviour that does cause that physical or mental harm or apprehension or fear.

Clause passed.

Schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence) (11:23): I move:

That this bill be now read a third time.

Thank you to the officials who have been here and all who provided input and advice on this bill.

Mr TEAGUE (Heysen—Deputy Leader of the Opposition) (11:23): In addressing the third reading briefly, I just look to summarise those matters of focus the subject of the committee and, I suppose, where the bill leaves us in terms of the clause 4(8) application of the reasonableness test. There has been now kind of a fairly heavy reliance on what the interpretation of that reasonable person test is going to constitute.

On the one hand, the ALRM and the Law Society have provided an alternative, having raised the concern about the centrality of act and intent, as Chris Larkin has put it. At the other end, the Law Society has highlighted that in these circumstances, in which much of our ordinary day-to-day life is increasingly reliant upon particularly electronic means of using technology to assist us in all sorts of reasonable day-to-day ways, the inclusion of an express defence would assist to alleviate concerns about the offence being constituted by actions that ought not properly be the subject of this new legislation.

I just flag that aspect in particular. This is new territory, as the minister has indicated. There is a necessary appreciation of the new and ever-continuing evolving nature of the use of technology. We use it in many ways for beneficial purposes. There is a considerable amount of room for the use of technology in particular to have one character perhaps at one time or over a period of time and then change to another. Similarly, there is the possibility for those involved to take a different view about the benefits, purposes and otherwise of the use of technology from time to time.

So it is clearly an area of concern. It is important that this be monitored for unintended consequences. I certainly indicate again my appreciation of the careful and thoughtful engagement by both the ALRM and the Law Society on those and the rest of the contents of the bill.

Bill read a third time and passed.