Bills

Criminal Law Consolidation (Stalking and Harassment) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:21): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935 and to make related amendments to the Evidence Act 1929, the Intervention Orders (Prevention of Abuse) Act 2009, the Sentencing Act 2017, and the Summary Offences Act 1953. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:22): I move:

That this bill be now read a second time.

I am pleased to introduce the Criminal Law Consolidation (Stalking and Harassment) Amendment Bill 2024. This bill will expand the existing offence of unlawful stalking in the Criminal Law Consolidation Act 1935 to cover a broader range of stalking conduct and to ensure that new methods of cyberstalking are adequately reflected.

The reforms will acknowledge the increased prevalence of stalkers using digital technologies and social media to stalk their victims. Whilst new digital technologies have been beneficial in a number of ways, they have unfortunately also created new avenues for abuse and harassment. A person may be stalked not only by being physically followed but by the stalker following them in the virtual world, leaving offensive comments on their social media posts and bombarding them with unwanted messages. Digital technologies also provide new mechanisms to track a person and keep them under surveillance.

To prove the offence of stalking, it must be proved that the defendant engaged in stalking behaviours on at least two occasions. The provision sets out a list of stalking behaviours, including giving or sending offensive material to the other person; communicating with the other person, or to others about the other person, in a way that could reasonably be expected to cause apprehension or fear; or acting in any other way that could reasonably be expected to arouse the other person's apprehension or fear.

Whilst some of the examples include references to digital communications, these are inconsistent and outdated. These references are replaced with a blanket provision stating that any of the behaviours listed in section 19AA(1)(a)(iv) to (v) can include conduct engaged in by way of the internet, electronic communication or social media, as well as by telephone, email, or in person.

The bill will expand the listed stalking behaviour of 'keeping a person under surveillance'. This will be replaced with the much broader phrase, 'monitor, track or surveil the other person, or the person's movements, activities or associations'. This reflects the broader types of surveillances allowed by digital technology. The bill will insert a list of examples of digital monitoring and surveillance, including using tracking devices, accessing a person's internet browser history or monitoring their email communications.

The bill will also expressly provide that stalking can include impersonating someone by publishing material that appears to have been published or authored by that person, for example by creating a fake social media account in their name and posting content that purports to be written by them. This will be considered stalking if it could reasonably cause the impersonated person apprehension or fear.

The bill will also expand the mental element for the offence of stalking. Currently, to convict someone for stalking a court must be satisfied that the stalker intended to cause the victim serious physical or mental harm, or serious apprehension or fear. However, this represents a very narrow subset of the broad range of motivations for stalking behaviour. There are stalkers who are fuelled by a narcissistic hubris and genuinely believe that their conduct might lead to a relationship with the victim being kindled or rekindled. Some stalkers might see themselves as being protective, particularly in domestic abuse situations.

Currently, it is difficult to convict such persons of stalking as they do not subjectively intend to cause harm. However, their behaviour is still frightening, invasive and unwanted. They still violate the victim's right to privacy and peaceful enjoyment of their lives. They do not respect the victim's right to say 'no' to continued contact.

The bill will add an alternative mental element for the offence of stalking, namely that the defendant knew, or ought reasonably to have known, that their conduct would cause physical or mental harm, or serious apprehension or fear. This will cover situations in which a stalker does not subjectively intend to frighten the victim, but any reasonable person could tell that the behaviour would be objectively frightening.

The existing intent element will also be modified to provide that, if the defendant did intend to cause physical or mental harm, the prosecution need not prove that the intended harm was serious. Intent to cause any harm will be sufficient to prove the offence. The seriousness of the intended harm can be considered in relation to sentencing.

Lastly, the offence will be renamed 'stalking and harassment'. This better reflects what the offence already covers. Several existing items on the list of stalking behaviours could alternatively be described as serious harassment, including repeated communications with the victim, giving offensive material to the victim or publishing offensive material about the victim. Renaming the offence will enhance public understanding of what is unlawful and encourage people subject to these behaviours to report them to police.

I commend the bill to members and seek leave to insert the explanation of clauses in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

3—Amendment of heading to Part 3 Division 5

This clause alters a heading and is consequential to the proposed changes to section 19AA.

4—Amendment of section 19AA—Unlawful stalking

This clause amends section 19AA to include reference to 'harassment', expands the list of conduct that constitutes stalking and harassment and adds an alternative mental element for the offence.

Schedule 1—Related amendments

The Schedule makes related amendments to the Evidence Act 1929, the Intervention Orders (Prevention of Abuse) Act 2009, the Sentencing Act 2017 and the Summary Offences Act 1953 to include reference to 'harassment'.

Debate adjourned on motion of Hon L.A. Henderson.