Criminal Law Consolidation (Stalking and Harassment) Amendment Bill – Second Reading speech
Thursday 28 November 2024
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.
