Criminal Law Consolidation (Stalking and Harassment) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 26 September 2024.)

The Hon. N.J. CENTOFANTI (Leader of the Opposition) (11:55): I rise today to indicate the opposition's support for the Criminal Law Consolidation (Stalking and Harassment) Amendment Bill 2024. The bill seeks to expand and modernise the definition of stalking within the Criminal Law Consolidation Act 1935. It makes related amendments to the Evidence Act 1929, Intervention Orders (Prevention of Abuse) Act 2009, Sentencing Act 2017, and the Summary Offences Act 1953.

As the Attorney-General noted when introducing this bill, the increased prevalence of digital technology and social media has made it necessary to broaden and update our legal definitions of stalking to better protect South Australians from modern forms of harassment and cyberstalking. The opposition broadly supports the intention behind this bill. We believe it is essential to have laws that protect citizens from not only physical stalking but also the invasive tactics made possible by digital technologies, which have created new avenues for harassment.

One of the critical changes in this bill is renaming 'unlawful stalking' as 'stalking and harassment'. Clauses 3 and 4 update terminology throughout the act to better reflect the range of behaviours covered under this offence. By expanding the offence to include 'harassment', this bill acknowledges that stalking can take many forms beyond physical presence. It can also manifest through online comments, continuous communication, and relentless monitoring, which can instill significant fear and apprehension in victims. The opposition supports these amendments as they bring clarity to the law, making it more accessible to the public, and encouraging those affected by these behaviours to report incidents to authorities.

The bill explicitly recognises stalking through digital channels, updating outdated terms and inconsistencies related to online harassment. Clauses 4(3) and 4(5) remove limited references like 'the internet or some other form of electronic communication' and replace them with a comprehensive provision encompassing all forms of electronic media, social platforms, and online interactions.

These are practical changes that reflect today's realities. Stalkers can now target their victims in ways that were impossible just a few years ago. People may find themselves bombarded with unwanted messages, constantly monitored through tracking devices, or subjected to impersonation on social media. The law must keep pace with these developments to safeguard individuals' privacy and sense of security.

The bill also amends the offence of surveillance, replacing 'keeping a person under surveillance' with 'monitor, track, or surveil'. This language expansion better reflects the method stalkers use today, allowing for monitoring someone's movements or accessing private information such as browser history or social media activity. This surveillance could reasonably instill fear or apprehension in the victim, and the opposition recognises that these provisions are a necessary update in defining what constitutes harassment.

Clause 4(4) further clarifies that impersonation, such as creating a fake social media profile, can be included within the offence if it reasonably causes fear or apprehension. This amendment directly responds to the contemporary digital landscape where impersonation can be used as a tool to intimidate and manipulate victims.

The bill introduces a new mental element for stalking, acknowledging that some offenders may not specifically intend to cause harm, but could reasonably foresee that their actions might result in fear or apprehension. Clauses 4(7) and 4(8) lower the threshold from 'serious harm' to 'harm' and incorporate a reasonable person test to assess intent.

While the opposition agrees with the principle behind these changes, we note the concerns raised by the Aboriginal Legal Rights Movement and the Law Society of South Australia regarding applying the reasonable person standard across culturally diverse communities. It is essential that such standards be interpreted with cultural sensitivity, especially in Indigenous communities where linguistic and cultural differences could impact the interpretation of intent.

The opposition also acknowledges the suggestion by the Law Society of South Australia to include a reasonable excuse defence, particularly for cases of monitoring or tracking. This could further refine the bill to ensure unintended or justified monitoring does not inadvertently fall under this offence.

The bill moves the penalty specifications from section 19AA(2) to section 19AA(1) without altering the actual penalties. Additionally, clause 4(10) incorporates all forms of communication, including digital, analogue, and in-person, as potential mediums for stalking, emphasising that any persistent and unwanted engagement, regardless of medium, can constitute harassment.

The opposition supports the Criminal Law Consolidation (Stalking and Harassment) Amendment Bill 2024 and its aim to protect individuals from the ever-evolving methods of harassment and stalking. We commend the government for addressing these pressing concerns through this legislation. However, we urge consideration of the points raised by stakeholders, particularly regarding the reasonable person test and the potential for unintended interpretations within the bill's scope.

These amendments represent an important step forward in safeguarding our community from harassment and ensuring our laws reflect contemporary challenges. By supporting this bill, the opposition reinforces our commitment to a South Australia where individuals can feel safe and protected, whether walking in their neighbourhood or navigating the digital road.

The Hon. M. EL DANNAWI (12:01): I am pleased to rise to speak in support of this bill. This bill will rename and update the offence of stalking to better promote public understanding of this crime. It will also broaden the mental element of the offence of stalking.

In the initial round of consultation, the Commissioner for Victims' Rights noted that many people in the community perceive stalking to involve the physical act of following someone and therefore may not be reporting behaviour that they understand to be harassment but that actually already constitutes the offence of unlawful stalking. There were 106 stalking charges laid in South Australia in 2022, although in light of the commissioner's finding it is likely that the offence is being under-reported to the police.

Stalking is significantly more likely to affect women than men. The 2021-22 Personal Safety Survey conducted by the Australian Bureau of Statistics found that 3.4 per cent of women had experienced stalking behaviours in the previous year as opposed to 0.6 per cent of men. They found that one in five women experience stalking behaviour in their lifetime as opposed to one in 15 men. Of those one in five women, over 90 per cent indicated that their stalking was done by a man. Seventy-five per cent of female stalking victims had been stalked by a known person, with 30 per cent of those being a current or former partner. Twenty-five per cent of women reported being stalked by a stranger.

Another concerning statistic, which we should also take note of, relates to the link between stalking and homicide. A report on intimate partner violence homicides published by Australia's National Research Organisation for Women's Safety found that 42 per cent of victims in intimate partner homicides had previously been stalked by the male perpetrator. Through this statistic we can see that reforming the way we report and view stalking has the potential to help us intervene earlier in cases of intimate partner homicide.

Stalking and harassing behaviours are not exclusively limited to family and domestic violence or gender-based violence, but they are absolutely relevant and important to the discussion we are currently having in this state about those topics. They are a part of the narrative that must be understood.

We need to create an environment where when a woman reports concerns of threatening, stalking and harassing behaviours they are taken seriously. We need to create an environment where they are encouraged to report this behaviour. We can only do so by updating our understanding of this crime. These proposed reforms send a clear message that, whoever you are, communicating with someone, monitoring them or behaving in a way that you know or should know will cause them fear or harm is not acceptable.

This bill firstly renames the offence as 'unlawful stalking and harassment' and also updates the list of stalking behaviours to cover stalking and harassment using technology, social media and other online platforms. This is particularly important as it can be observed that stalking behaviours are increasingly moving to online platforms, including dating apps.

Another substantial reform of this bill will broaden the mental element of the offence in order to reflect the reality of the crime. Currently, the offence requires proof that the defendant intended to cause serious physical or mental harm, or intended to cause serious apprehension or fear. The changes include removing reference to serious harm, apprehension or fear. Whether or not stalking or harassment exists at law should not be dependent on whether the perpetrator intended to seriously scare the person they are stalking. The fact that they only intended to cause moderate harm or fear should not be a defence.

The bill also adds an alternative objective test for circumstances where the defendant may not have intended to cause harm, apprehension or fear but should have reasonably known that their conduct would do so. This is intended to address circumstances where defendants, perhaps driven by narcissistic behaviours or delusions, may see themselves as being protective, helpful or more connected with the victim than they actually are. These defendants should reasonably have known how frightening their behaviour is. Victoria, WA, the Northern Territory and Tasmania all utilise this objective test.

The potential for this bill to change the way that we think and prosecute harassment towards women is very important; however, it is still up to us to help create a safer culture for women. Legislative changes are important and should not be underestimated, but cultural changes are important too, and that is something that we are all equally responsible for. I commend the bill to the chamber.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (12:06): I wish to thank all honourable members for their contribution and I look forward to the committee stage on what is, as has been noted by the second reading contributions, a very important piece of legislation.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (12:09): I move:

That this bill be now read a third time.

Bill read a third time and passed.