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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2024-11-28 Daily Xml
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Criminal Law Consolidation (Stalking and Harassment) Amendment Bill

Second Reading

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence, Minister for Recreation, Sport and Racing) (12:21): I move:

That this bill be now read a second time.

I am really pleased to introduce to this house 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 to ensure that the awful new methods of cyberstalking engaged in are adequately reflected and that those who engage in it can be appropriately dealt with.

The reforms acknowledge the increased prevalence of stalkers using digital technologies and social media to stalk their victims and cause them harm. We all rightly marvel at how new digital technologies have been beneficial in many diverse ways. We also, however, are appalled by how they have also created new avenues for abuse and harassment predominantly directed toward women. I think many of us have images in our minds of what constitutes stalking: a person physically following you, intimidating you, harassing you, scaring you, making you fear for your safety, never leaving you alone. Physical stalking, harassment and abuse, sadly, continue, but there are new, insidious ways for those who seek to harass and abuse you to stalk you and cause that fear and harm.

A person, sadly, can now be stalked not just by being physically followed but by the stalker insidiously following them in the virtual world: leaving offensive comments on their social media posts, bombarding them with unwanted messages, repeatedly sending unwanted pictures, attempting to contact them on multiple platforms relentlessly. Digital technologies also provide new mechanisms to track a person and their movements, to listen to them and to keep them under constant surveillance. Being stalked physically or online is really scary. Either vehicle to do so causes the same stress, angst, fear and apprehension about who is watching you or what they will do to you or to the people you love. It is awful.

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 these examples include references to digital communications, they are inconsistent and outdated. These references, through this bill, are replaced with a blanket provision stating that any of the behaviours listed in section 19AA(1)(a)(iv) to (vi) can include conduct engaged in by way of the internet, electronic communication or social media as well as by telephone, email, mail 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 'monitors, tracks or surveils the other person or the person's movements, activities or associations'. This reflects the broader types of surveillance 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.

This 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 person subject to the stalking 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 narcissism and hubris and genuinely believe that their conduct might lead to a relationship with the person being kindled or rekindled. Some stalkers might see themselves as being protective, particularly in domestic abuse situations.

Currently, it is really difficult to convict these persons of stalking as they do not subjectively intend to cause harm. However, their behaviour is still really frightening, invasive and unwanted. They still violate a person's right to privacy and peaceful enjoyment of their lives. They still cause fear, and they do not respect the person'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 person 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 rightly be renamed 'stalking and harassment'. This much 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 communication with the person subject to the behaviour, giving offensive material to the person or publishing offensive material about them. Renaming the offence will enhance public understanding of what is unlawful and encourage people subject to these behaviours to report them to police.

This raising of awareness and understanding is really important. If we are to be successful in our ongoing desire as a government and as a community to stamp out all forms of violence against women and indeed all people, we need everybody to understand what all those forms of violence are and we need to send a really strong message that all of those forms of violence are utterly unacceptable, have no place in our community and will be firmly responded to.

This bill is about doing that. It will hold to account those who perpetrate this particular form of violence, stalking and harassment, using physical or non-physical means, and it shifts community perception and understanding. This is crucial because, unfortunately, these new places and means through which people are being stalked and harassed are also the places where terrible, misogynistic material that breeds harmful attitudes about women are also being propagated. As I have said now on several occasions in this house, as fast as we can run respectful relationship and behaviour education and awareness, the likes of Andrew Tate are attempting to undo our efforts, and as they do so online it is only a short click away to channelling these harmful attitudes into harmful, stalking harassing behaviours online.

As we tackle this scary, growing problem, we need policy and educative and legislative tools at our disposal. This bill is another strong piece of legislation that our government is advancing to help drive change. It of course also sits alongside the strong stance our government is taking on social media and young people. This bill will help to make a difference. I commend it to the house. I seek leave to have the explanation of clauses inserted 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'.

S.E. ANDREWS (Gibson) (12:32): I rise to indicate my support for the Criminal Law Consolidation (Stalking and Harassment) Amendment Bill 2024. It is a bill that reforms our legislation to increase the awareness and reporting of stalking behaviour, whether it be physical or digital stalking. It is never acceptable for anyone to harass or stalk another in person or online, whether this be mildly or seriously. We need to spread the word to our community that this behaviour is unacceptable and must stop. This bill strengthens that message.

Stalking is significantly more likely to affect women than men. The 2021-22 Personal Safety Survey conducted by the ABS across over 10,000 randomised respondents indicated that 3.4 per cent of women and 0.6 per cent of men had experienced stalking behaviours in the year prior, with one in five women experiencing stalking behaviours across their lifetime. Of those one in five women, 94 per cent indicated their stalking was perpetrated by a man; 75 per cent of female stalking victims had been stalked by a person known to them, with 30 per cent of those being a current or former partner; and 25 per cent of women reported being stalked by a stranger.

This bill will rename the offence in the act from 'unlawful stalking' to 'unlawful stalking and harassment'. This is intended to promote better public understanding of the crime and better demonstrate what the section already criminalises. There were 106 stalking charges laid in South Australia in 2022, though we know the nature of this offence means that this offence is likely to be significantly under-reported to police, although the cases that are reported can be extremely serious.

In one case, an offender was convicted of 26 counts of stalking, with each count relating to a different female victim and with behaviours including communicating in a threatening manner over dating apps; attending victims' homes when they had never disclosed their address; relentlessly calling their workplaces, families and friends; graffitiing their homes; unwanted floral and gift deliveries; and interfering with their post mail.

Stalking, as noted by the Commissioner for Victims' Rights and the above case, goes beyond the physical act of following a person, but many people in the community perceive stalking to be constituted by physical following and therefore may not report behaviour they perceive to be harassment. We need to talk about stalking and harassment as part of the conversation regarding family, domestic and sexual violence, as we know that this violence is often not only physical but mentally damaging, emotionally sapping and controlling behaviour, which we are addressing through our coercive control legislation.

A report on intimate partner violence homicides, published by Australia's National Research Organisation for Women's Safety, found 42 per cent of victims in intimate partner homicides had previously been stalked by the male perpetrator. To prove the offence of stalking, it must be proved that the defendant engaged in stalking behaviours on at least two occasions. Sadly, as we know from many examples that have come before the courts, the offences can occur multiple times per day and to multiple victims.

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 that person apprehension or fear; or acting in any other way that could reasonably be expected to arouse the other person's apprehension or fear.

The changes proposed in this bill reflect the fact that these unlawful behaviours are increasingly moving across to online platforms, including dating apps. It is important that our laws clearly reflect that wherever these behaviours occur, whether online or in person, the behaviour is not tolerated. This bill includes updating the list of stalking behaviours to more expressly cover stalking and harassment using technology, social media and other online platforms, as cyberstalking is an ever-increasing type of this offence.

Whilst we all might think the internet has been fantastic in so many ways, it has also provided new avenues for abuse and harassment, through social media messaging, text messaging, dating apps and social media posts. A blanket provision states that any of these behaviours listed in the act can include conduct engaged in by the way of 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' and replace it with the much broader phrase, 'monitors, tracks or surveils the other person or the person's movements, activities or associations'. This reflects the broader types of surveillance enabled 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, all examples that were not readily available previously but can now be accessed by most people. No person has a right to monitor or control another. In another shocking example, an offender stalked his former colleague online, bombarded her with messages and later murdered her. It cannot get more serious.

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, 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.

This bill also broadens the mental element of the offence. Currently, the offence requires proof that the defendant intended to cause serious physical or mental harm, or serious apprehension or fear. The proposed changes in this bill include removing the reference to serious harm, apprehension or fear. As highlighted by the Acting Chief Justice in his initial submission, it should not be considered acceptable that stalking or harassing behaviours are lawful on the basis that the defendant only intended to cause moderate harm or fear.

An alternative objective test will also be added for circumstances where the defendant may not have intended to cause harm, apprehension or fear, but ought reasonably to have known 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.

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 ought to know, causes them fear or harm is not acceptable and you should feel the full force of the law. I commend the bill to the house.

Mr BROWN (Florey) (12:40): I am pleased to rise in support of the Criminal Law Consolidation (Stalking and Harassment) Amendment Bill 2024. The provisions of this bill seek to expand the existing offence of unlawful stalking in the Criminal Law Consolidation Act 1935 such that a broader range of conduct will be covered. It also seeks to ensure that some newer methods of stalking, namely that which occurs through the use of digital technologies and social media, are adequately reflected and addressed by our laws.

While a range of new technologies which have evolved rapidly, and continue to do so, have been beneficial to our community in a variety of ways, they have unfortunately also facilitated new means for engaging in abuse and harassment. Acknowledging the greater prevalence of people who engage in stalking behaviour through the use of digital technologies and social media is important. We must ensure that our laws are responsive to the changing realities of our lives in many regards—socially, economically, technologically—and the reforms contained in this bill recognise that the behaviours which should be captured in both public and legal understanding of stalking have further evolved with the advent of new digital technologies.

Today, a person may be stalked not only by having their physical whereabouts monitored or by being followed in the physical realm but also by the stalker following or harassing them in the virtual world—for example, by leaving offensive comments on their social media posts or inundating them with offensive or unwanted messages.

It is also worth recognising that digital technologies have provided new mechanisms by which a person's movements can be tracked and by which a person's activity and movements can be kept under surveillance. It is important that our laws be fit for purpose in recognition of the existence and the impact of new behaviours that reasonable South Australians would agree constitute stalking.

Some of the examples in current provisions that include references to digital communications are inconsistent and outdated. These references will be 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 seeks to expand the list of stalking behaviour of 'keeping a person under surveillance'. This will be replaced with a significantly broader phrase: 'monitors, tracks or surveils the other person, or the person's movements, activities or associations'. This expanded phrase reflects the types of surveillances that are made possible in part by the evolving capabilities of digital technologies. The bill seeks to insert a list of examples of digital monitoring and surveillance, including using tracking devices, accessing a person's browser history or monitoring their email communications.

The bill will also provide that stalking can include impersonating a person by publishing material that appears to have been published or authored by that person—for example, by creating a fake social media account in a person's name and posting content that is intended to appear to have been posted by that person. This will be considered stalking if it could reasonably cause apprehension or fear for the impersonated individual. Broadly considering apprehension, fear and the other potential emotional and mental impacts experienced by victims of stalking, the bill seeks to expand the mental element for the offence of stalking. Under the current provisions, in order to record a conviction for stalking, a court must be satisfied that the person who engaged in stalking behaviour intended to cause the victim serious physical or mental harm, or serious apprehension or fear.

The changes contained in the bill propose to remove the reference to 'serious' harm, apprehension or fear. It was astutely pointed out by the Acting Chief Justice in this initial submission that stalking or harassing behaviours should not be lawful on the basis that the person engaging in the behaviours merely intended to cause moderate harm or fear.

Currently, it is difficult to convict persons of stalking who cannot be proven to having intended to cause harm. Even in the absence of intent to cause harm that can be proven, stalking behaviours may be frightening, invasive and unwanted, and their behaviours may violate various of the victim's rights. That is why this bill seeks to add an alternative mental element for the offence of stalking, namely that the defendant either knew or reasonably ought to have known that their behaviour would cause physical or mental harm, apprehension or fear. It is intended that this will cover situations in which a stalker may not subjectively intend to cause harm, apprehension or fear to the victim, but a reasonable person could tell that the behaviour would cause harm, apprehension or fear.

It is worth noting that all other Australian states and territories have mental elements for stalking offences other than actual intent. The objective test that is proposed here is the same as exists in Victoria, Western Australia, the Northern Territory and Tasmania. The existing intent element will also be adjusted to provide that in the event that a defendant did intend to cause physical or mental harm, the prosecution need not prove that the intended harm was serious in nature. Intent to cause harm of any nature will be sufficient to prove the offence and the degree of seriousness of the intended harm can then be considered in relation to sentencing.

Finally, the bill provides that the offence will be renamed 'stalking and harassment' rather than simply 'stalking'. This change will better reflect what the offence already covers. Several items that appear on the list of stalking behaviours could be described alternatively as harassment, including repeated communications with the victim, giving offensive material to the victim or publishing offensive material about the victim.

During consultation, the Commissioner for Victims' Rights raised the point that many people in the community perceived stalking to mean physical following and therefore they may not recognise it is appropriate to report behaviour that they perceive to be harassment but which in fact already constitutes the offence of unlawful stalking. Renaming the offence aims to strengthen public understanding of what is unlawful, as well as to encourage people who unfortunately find themselves subject to these behaviours to report them to the police.

These reforms send a clear message that engaging in stalking and harassment behaviours, whether that is by communicating with a person, monitoring or surveilling them, or behaving in any way that a reasonable person knows or ought to know will cause fear or harm, is unacceptable and will not be tolerated. I commend the bill to the house.

Mr TEAGUE (Heysen) (12:47): I rise to indicate that I am the lead speaker for the opposition and I indicate the opposition's support for the bill. In the course of the debate, there has been some reference—and I listened carefully to the members for Gibson and Florey after the minister's contribution—to the more particular role that an objective test is to play in the formulation of these offences.

It is important to mention that there are concerns, including those raised by the Aboriginal Legal Rights Movement and the Law Society, about the so-called reasonable person test, the objective test, in relation to these offences. Like all matters that are going to need to be the subject of the working up of evidence and decisions to be made by prosecutors, the question of what constitutes the meeting of that objective test to constitute the offence in the absence of intent will be a matter to be carefully monitored.

There are also necessarily in this space, like there are in so many other walks of life where ordinary conduct can constitute an offence in relevant circumstances, plenty of examples of monitoring, for example, that are in the interests of safety, communication and other things and so it is important to ensure that there is clarity of approach. The Law Society has gone so far as to propose that there be an explicit defence in relation to the tracking side in this regard of a reasonable excuse. So the caution is expressed, and I particularly want to highlight that aspect.

Of course, this is legislation that does not overlap with the legislation as it is framed in relation to coercive control—coercive control applying specifically to circumstances of an intimate partner relationship. There are two areas of criminal conduct where it is not straightforward to identify and particularly to prove up offences and where there is at least material risk of unintended consequences such that these concerns have been raised.

It is important that, in navigating this territory, there is awareness of these issues, and I raise that particularly in the context of the reasonable person test. There might be some opportunity to inquire in that regard in the course, briefly, of the committee stage. So I otherwise indicate the opposition's support, and proceed with the expectation that this will do as it is intended to enhance the security of those who otherwise might be the subject of what is undoubtedly heinous criminal conduct.

The Hon. K.A. HILDYARD (Reynell—Minister for Child Protection, Minister for Women and the Prevention of Domestic, Family and Sexual Violence, Minister for Recreation, Sport and Racing) (12:52): I thank the member for Gibson, the member for Florey and the member for Heysen for their important contributions. I particularly acknowledge the incredibly devastating example that the member for Gibson provided and just reflect that this morning I was together with Embolden and the Domestic and Family Violence Safety Alliance, and our conversation focused on the importance of ensuring that the stories and the voices of those whom we have tragically lost, but also of survivors, are—

The DEPUTY SPEAKER: Just to clarify, my understanding is that you will not be going into committee?

The Hon. K.A. HILDYARD: That is right.

The DEPUTY SPEAKER: Can I suggest that—

Mr Teague: It's going into committee.

The DEPUTY SPEAKER: You want to go into committee?

The Hon. K.A. HILDYARD: I thought you said we were not, sorry.

The DEPUTY SPEAKER: I understand there are no advisers present.

The Hon. S.E. Close: I believe you are not going into committee now because the adviser is not able to be here; is that right?

The Hon. K.A. HILDYARD: Yes.

The Hon. S.E. Close: So you may go into committee in the future but not today because the adviser is not available.

The Hon. K.A. HILDYARD: That is right, yes.

The DEPUTY SPEAKER: That is what I am just clarifying. In that case, can I suggest you seek leave to continue your remarks?

The Hon. K.A. HILDYARD: I seek leave to continue my remarks.

Leave granted; debate adjourned.

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