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     Australian law

This page considers Australian law regarding stalking.

It covers -

• introduction - the shape of anti-stalker statute and common law
• AVOs and stalking
• federal law - telecommunication, postal, family and other law
• state/territory law - an overview of the state regimes

     introduction

There is no global legal protection against cyberstalking and progress towards a global agreement has been glacially slow.

One reason is uncertainty about the nature, efficacy and specifics of international agreements about online communications - evident in comments elsewhere on this site regarding governance, security, censorship, defamation and privacy.

Another reason is disagreement within and between nations over what constitutes stalking - online and off - and how best to address it. Different nations (and jurisdictions within those nations) often have quite different statute and common law regarding harassment.

Some rely on specific anti-stalking enactments. Others have emphasised use of broader harassment, privacy, copyright, offensive messaging and public order legislation.

Some note that, in principle, protection is provided by restrictions in telecommunication legislation although acknowledging such restrictions have not been used on a large scale to address electronic stalking.

It has been claimed that common law provides protection regarding offences such as trespass, watching & besetting premises, loitering, harassment on highway, intimidation and threats causing nervous shock, defamation, public & private nuisance and even false imprisonment. In practice that protection may be partial and expensive or difficult to obtain. Australian jurisdictions have accordingly moved to some form of anti-harassment or anti-stalking provisions in their criminal codes.

     AVOs and stalking

Much media coverage of responses to stalking in Australia is conceptualised in relation to apprehended violence orders (AVOs) or intervention orders, often referred to as Apprehended Domestic Violence Orders (ADVO), Apprehended Personal Violence Orders (APVO), Domestic Violence Orders (DVO), Restraining Orders, Restraint Orders or Protection Orders.

The 2002 NSW LRC Apprehended Violence Orders discussion paper notes that

Anti-stalking legislation is inherently difficult to draft. The offence is by nature imprecise, as behaviour which is otherwise considered quite ordinary becomes threatening in context: "the difficulty in defining stalking as a concept lies in its paradoxical status as an act that is ambiguously located somewhere between crime and conformity". While stalking is qualitatively different from the legitimate pursuit of a love interest, it is difficult to clarify at what point the behaviour warrants criminal sanction. Because of this inherent imprecision, it is difficult to set clear parameters in the legislation. ...

There is significant overlap between AVOs and stalking and intimidation. The same conduct may give rise to an offence of stalking and intimidation and also constitute grounds for an AVO. Both deal with action which may not be criminal in isolation but, in context, could be serious enough to warrant legal intervention. A court can grant an AVO where the person seeking protection has reasonable grounds to fear, and in fact fears, harassment, molestation, intimidation or stalking, sufficient to warrant the making of the order. The AVO provides a means of stopping the offending behaviour, as it prohibits the defendant from stalking or engaging in conduct that intimidates the protected person. If a person is charged with stalking or intimidation, the court must make an interim AVO for the protection of the alleged victim. A final order is made if the accused is found guilty

An AVO will typically provide that the defendant must not -

1 assault, molest, harass, threaten or otherwise interfere with the protected person/s (eg a partner and children) or a nominated third party (eg a person's partner)
2 reside at the premises at which the protected person/s may from time to time reside or work, or other premises
3 enter premises at which the protected person/s may from time to time reside or work, or other specified premises
4 go within the premises at which the protected person/s may from time to time reside or work, or other specified premises
5 approach, contact or telephone the protected peron/s except as agreed in writing or for the purpose permitted by an order or directions under the Family Law Act 1975 as to counseling/mediation or for the purpose of arranging or exercising access to children under the Family Law Act 1975
6 contact the protected person/s by any means (including through a third person) except through the defendant's legal representative;
7 fail to surrender all firearms and related licenses to Police
8 approach the school or other premises at which the protected person/s may from time to time attend for the purposes of education or child care or other specified premises
9 approach the protected person/s within twelve hours of consuming intoxicating liquor or drugs
10 destroy or deliberately damage or interfere with the property of the protected person/s.

AVOs can be made by consent and without any admission of wrongdoing, avoiding the need for the matter to proceed to a court hearing and thus offering a cost effective way for parties to resolve a dispute where fear of domestic violence or abuse is an issue. However, a full hearing of evidence is often necessary to prove the need for an order.

     federal law

The Australian regime reflects the sharing of responsibilities between the national and state/territory governments under the 1901 Constitution.

In essence, the national government has substantial authority under its powers to regulate telecommunications, conceivably encompassing restrictions on harassment via the net, by voice and by SMS. The 'provincial' governments have powers through their criminal codes and other legislation, including law about covert surveillance.

There is thus no single overarching enactment about stalking per se and no national law that is specifically concerned with cybserstalking. The development of legislation about cybersuicide offers a possible precedent for some form of national cyberstalking enactment.

The federal Criminal Code, updated through the Crimes Legislation Amendment (Telecommunications Offences & Other Measures) Act (No. 2) 2004, features offences of using a "postal or similar service" or a carriage service "to menace, harass or cause offence".

Section 471.11 of the Criminal Code Act 1995 thus makes it an offence to use a postal or similar service to make a threat. 471.11 (1) prohibits making a threat to kill if the author of that threat intends the person to fear that the threat will be carried out. 477.11 (2) covers postal threats to cause serious harm. In both subsections 'actual fear' not required: " it is not necessary to prove that the person receiving the threat actually feared that the threat would be carried out".

Section 471.12 deals with use of a postal or similar service to menace, harass or cause offence. It is an offence to use a postal service

in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Section 474.15 (1) similar deals with using a carriage service to make a threat to kill a person (where there is an intension to cause fear that the threat will be carried out). 474.15 (2) covers threats to cause serious harm. In both subsections actual fear is not required: in a prosecution it is not necessary to prove that the person receiving the threat actually feared that the threat would be carried out.

The Family Court Act 1975 (FCA) provides for intervention orders under state/territory law and under the federal Act. Similar Child Protection Orders may be issued by state/territory Childrens Courts.

     state/territory law

State/territory legislation regarding stalking essentially defines stalking as acts that are engaged in on more than one occasion and that are intended to cause fear or apprehension in the individual. The legislation varies considerably from jurisdiction to jurisdiction. In Queensland and Victoria it specifically include sending electronic messages to (or otherwise contacting) the victim.

The legislation generally encompasses activities such as unauthorised surveillance of an individual, interfering with the individual's property (or that of an associate), sending offensive material, telephoning the person in a way that could be reasonably expected to arouse apprehension or fear, and more broadly engaging in conduct "amounting to intimidation, harassment or molestation" of the individual. It coexists with a range of state/territory public safety, domestic violence, computer crime and other legislation.

There is disagreement about the identification of locations in which stalking may be held to have (or that might) occur. There is also disagreement about what constitutes substantial fear and apprehension.

In the absence of extensive case law some observers have thus speculated that magistrates might take an unduly sceptical view of cyberstalking, on the basis that the absence of physical proximity between victims and offenders would reduce fear. Others have noted that fear can be induced through postal/other mail and that some offenders demonstrate sufficient knowledge of their victims through email as to cause the victim a very pervasive sense of fear.

The legislation features exclusions for behaviour that involves performance of official duties relating to law enforcement, administration of an Act, execution of a warrant or protection of public revenue.

In the ACT under the Crimes Act 1900 stalking is defined as acts engaged in on at least two separate occasions, which could be expected to arouse the other person's apprehension or fear. The offender must intend to cause apprehension (or fear of) serious harm or cause serious harm. As in other jurisdictions, penalties are tougher where the offender has an offensive weapon or has breached a court order. In the ACT the penalty is up to two years imprisonment unless the behaviour involves possession of an offensive weapon or contravenes a court order.

Associated legislation includes the Protection Orders Act 2001.

In NSW stalking involves acts that amount to intimidation within the context of a domestic relationship. The offender must intend to cause the victim to fear personal injury to either themselves or to another person in that relationship, eg a child or parent. The penalty is up to two years imprisonment or a fine of $5,000.

In the NT stalking is defined in the Criminal Code as acts engaged in on at least two separate occasions that could be reasonably expected to arouse the victim's apprehension or fear, with the offender intending to cause physical or mental harm, apprehension or fear. The penalty is up to two years imprisonment unless the behaviour also involves possession of an offensive weapon or contravenes a court order, which may attract up to five years imprisonment.

Associated legislation includes the Domestic Violence Act 1992.

In Queensland under the Criminal Code Act (s359A) stalking is defined as acts on at least two separate occasions that are intended to and result in fear, apprehension or physical harm. The victim must be aware of being stalked; importantly the offender must intend for the victim to be aware. Queensland was the first Australian jurisdiction to criminalise stalking when legislation was passed in that State in 1993. The QLD penalty is up to three years imprisonment unless the activity also involves possession of an offensive weapon or contravenes a court order (with a penalty of up to five years imprisonment).

Associated legislation includes the Domestic Violence (Family Protection) Act 1989.

In South Australia stalking is defined as acts engaged in on at least two separate occasions that could be reasonably expected to arouse serious apprehension or fear. The offender must intend to cause serious physical or mental harm or serious apprehension or fear. The penalty is up to three years imprisonment, unless the offender's action also involves possession of an offensive weapon or contravenes a court order (with a penalty of up to five years in prison).

Associated legislation includes the Domestic Violence Act 1994.

Stalking under Tasmanian law (Criminal Code Act 1924) involves acts that could be reasonably expected to arouse the other persons apprehension, or fear of physical or mental harm. The offender must intend to cause apprehension, fear or physical or mental harm or have known that the acts would create fear and apprehension. The penalty is up to 21 years imprisonment.

Associated legislation includes the Justices Act 1959.

In Victoria under the Crimes Act 1958 (CA) - stalking is defined as engaging in a course of conduct with the intention to cause physical or mental harm, apprehension or fear. That conduct includes following the victim; contacting or giving offensive material to the victim; entering or loitering near the victim's home, workplace or other place frequented by the victim; interfering with the victim’s property; keeping the victim under surveillance; and engaging other person/s to do any of the above. The offender's action must have the intended result, eg must result in apprehension or fear. intended by the offender. The penalty is up to 10 years imprisonment.

The legislation was updated by the Crimes (Stalking) Act 2003, which extended the definition of stalking to include -

contacting the victim or any other person by post, telephone, fax, text message, e-mail or other electronic communication or by any other means whatsoever;
(ba) publishing on the Internet or by an e-mail or other electronic communication to any person a statement or other material -
(i) relating to the victim or any other person; or
(ii) purporting to relate to, or to originate from, the victim or any other person;
(bb) causing an unauthorised computer function (within the meaning of Subdivision (6) of Division 3) in a computer owned or used by the victim or any other person;
(bc) tracing the victim's or any other person's use of the Internet or of e-mail or other electronic communications

Associated legislation includes the Crimes (Family Violence) Act 1987.

Under the Western Australian Criminal Code (s338C-D and s338E) stalking involves pursuing "another person with intent to intimidate that person or a third person" and thereby preventing or hindering of another person's lawful actions, compelling a person to commit an act from which they are lawfully entitled to abstain or causing physical or mental harm, apprehension or fear. The offender must intend to intimidate or the offender's activity does in indeed intimidate. Penalties range from up to 18 months imprisonment (in the Court of Summary Jurisdictions) to up to 8 years (in the higher court where the offence involves possession of an offensive weapon or contravenes a court order).

Associated legislation includes the Restraining Orders Act 1997.





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