The New South Wales State government looks set to amend the Crimes (Domestic and Personal Violence) Act 2007 (‘the Act’) to broaden the definitions of “stalking” and “intimidation” so they capture more people who abuse others via technology.
The current law
Section 13 of the Act makes it an offence punishable by up to 5 years’ imprisonment and/or a fine of $5,500 for a person to stalk or intimidate another with the intention of causing fear of physical or mental harm.
The section makes clear that:
- The offence covers causing fear of such harm to another with whom a person has a domestic relationship,
- A person intends to cause such a fear if he or she knows the conduct is likely to cause the fear,
- The prosecution does not have to prove that the complainant actually held a fear, and
- A person is guilty if they attempt to cause such a fear.
Section 7 defines intimidation as:
- conduct amounting to harassment or molestation, or
- an approach made to the person by any means, including by telephone, text messaging, e-mailing and other technologically assisted means, or
- any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.
It further states that the court can have regard to a pattern of violence when determining whether conduct amounts to intimidation.
Section 8 defines stalking as including the following of a person about or the watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity.
Again, a court can consider any pattern of violence when determining whether conduct amounts to stalks.
NSW Premier Gladys Berejiklian and Attorney General Mark Speakman recently issued a press release titled ‘Tougher laws to combat online abuse’ which states:
“The NSW Government will introduce legislation amending the law to make it clear that the definitions of ‘stalking’ and ‘intimidation’ in the Crimes (Domestic and Personal Violence) Act explicitly includes activities conducted online or via text messages that are designed to instill fear of physical or mental harm.”
It is a curious proposal when the current definition of intimidation already explicitly includes ‘an approach made to the person by any means, including… e-mailing and other technologically assisted means”; which clearly captures all online activity.
The press release is vague in so far as it does not outline the forthcoming changes or how they would actually broaden the law.
The release states “[p]eople who stalk or intimidate using modern technology will face a maximum five-year prison term under the NSW Government’s amendments.”
But as outlined, the maximum penalty is already 5 years’ imprisonment.
Mr Speakman weighed in by telling the media, “modern technology requires modern laws”, and that amendments to the law will make it clear to both police and the courts that the prohibition against stalking and intimidation includes “serious cases of cyberbullying and trolling”.
All talk, no action
But criminal lawyers have criticised the release as misleading because existing laws already expressly capture “e-mailing and other technologically assisted means”, in other words all online conduct, which is something that police, lawyers, magistrates and judges are acutely aware of – or at least should be.
Indeed, lawyers who regularly appear in the local courts are well-aware that court lists are inundated with such cases, suggesting that politicians like Ms Berejiklian and Mr Speakman are simply taking advantage of an opportunity to increase their popularity by making it seem they are doing something about cyber bullying, when their vague so-called ‘reform’ will change little if anything.
The following quotation by the premier is included in the press release:
“The change we are announcing today recognises that online abuse can cause victims significant psychological trauma and have potentially devastating, even tragic consequences”.
Again, this seems to be little more than political point scoring, with little substance to back it up.
A growing problem
Experts suggest that up to 98 per cent of domestic violence victims have experienced some form of telephone or online abuse.
They point out that personal tracking devices can be purchased legally for as little as $300, and can allow perpetrators to track targets anywhere and anytime.
They highlight the fact that the public has easy access to programs which can infiltrate computers and social media accounts, and monitor digital activities, as well as to spoofing services that can mask the caller’s number and alter their voice, making it easy to abuse targets anonymously.
Many believe computers and smartphones are fast becoming the weapons of choice for perpetrators, rather than traditional confrontations which can be easier to detect and prosecute.
They advocate for real changes in education and support, as well as detection and enforcement, pointing out that cyber bullying can have tragic consequences.