Criminal offences for harassment

15.31 This section outlines a range of Commonwealth, state and territory criminal offences for conduct that amounts to harassment. There appear to be some gaps in state laws, and it seems Commonwealth cyber-harassment laws could be clearer and more actively enforced.

State stalking and harassment laws

15.32 State and territory laws criminalise stalking. These offences often target behaviour amounting to harassment.[27] For example, under the Crimes Act 1958 (Vic) s 21A, a person (the offender) stalks another person (the victim)

if the offender engages in a course of conduct [which includes any of a wide range of types of conduct] with the intention of causing physical or mental harm to the victim, including self-harm, or of arousing apprehension or fear in the victim for his or her own safety or that of any other person.

15.33 There are also state and territory offences that capture harassment at work, in family or domestic contexts, and in schools and other educational institutions. For example, the Crimes Act 1900 (NSW) s 60E provides that it is an offence to ‘assault, stalk, harass or intimidate any school student or member of staff of a school, while the student or member of staff is attending a school’.

15.34 Section 8(1) of the Crime (Domestic and Personal Violence) Act 2007 (NSW) defines stalking as ‘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 activity’. This Act is confined to persons experiencing domestic or family violence.

15.35 Some types of serious harassment may not be caught by existing criminal offences. State and territory stalking offences, for example, are limited in their ability to protect individuals from harassment which does not involve the apprehension of actual violence. Stalking offences usually capture threatening conduct and require the victim to apprehend actual violence or to fear harm.[28] However, persistent unwanted attention, communication or contact which does not meet this threshold could undoubtedly still cause significant harm and distress, and disrupt a person’s life.

15.36 Differences between state and territory stalking offences may also undermine their effectiveness. For example, in many states, stalking requires a course of conduct covering at least two incidents,[29] but in Tasmania, stalking may be based upon one incident.[30]

15.37 Several stakeholders supported the consolidation and clarification of existing state and territory stalking criminal offences.[31] The National Children’s and Youth Law Centre highlighted the need to ‘address the gaps’ in the current legal frameworks for cyber-bullying and harassment.[32] The Public Interest Advocacy Centre and Women’s Legal Services NSW both supported a uniform approach to the criminalisation of harassment while cautioning against any consolidation process which may adopt a ‘lowest common denominator’ approach.[33] Uniformity in state and territory stalking provisions may deserve further consideration.

Commonwealth cyber-harassment laws

15.38 Commonwealth law criminalises cyber-harassment, but does not provide for a general offence of harassment. The Commonwealth Criminal Code, set out in the schedule to the Criminal Code Act 1995 (Cth), provides for an offence of ‘using a carriage service to menace, harass or cause offence’[34] and ‘using a carriage service to make a threat’.[35] These would capture conduct amounting to harassment, for example, via the internet, including social media, and telephone.[36] Examples of prosecutions under this offence include posting offensive pictures and comments on Facebook tribute pages;[37] posting menacing messages on Facebook;[38] and sending repeated menacing emails.[39] The maximum penalty under s 474.17 is currently three years imprisonment. The maximum fine is $19,800 for a natural person and $99,000 for a body corporate.

15.39 There are also Commonwealth laws to protect victims of family violence from harassment, including harassment via electronic communications. For example, stalking is included in the definition of ‘family violence’ in the Family Law Act 1975 (Cth).[40]

15.40 Some have suggested that the Commonwealth criminal offences for cyber-harassment might be more actively enforced, and perhaps made clearer. At the time of writing this Report, the federal Department of Communications was conducting a review into online safety for children.[41] Among other issues, the Department has been asked to consider simplifying the meaning and application of s 474.17 of the Criminal Code, although some stakeholders have suggested the law is appropriate. For example, the Australian Federal Police said the section was ‘more than adequate to facilitate prosecution of cyber-bullying cases where appropriate’, and argued that ‘the breadth of section 474.17 is its strength, capturing a wide range of behaviours in a rapidly evolving online environment’.[42]

15.41 Some suggested that the law only needs to be more widely known or actively enforced, and that an education campaign might be necessary. Some commentators claim that, despite a high rate of parental reporting of cyber-bullying, there appears to be a lack of adequate knowledge or training about the applicability of the provision.[43] Facebook also supported education and awareness-raising measures to explain the application of the offence.[44] Google submitted that the problem ‘is not that the laws don’t exist, but rather that there is a general lack of awareness of the existing criminal and civil laws that are available’.[45]

15.42 Since the commencement of the relevant provision in 2005, and January 2014, there were 308 successful prosecutions under s 474.17 of the Commonwealth Criminal Code including eight prosecutions involving defendants under the age of 18.[46] The ALRC was advised by the Commonwealth Director of Public Prosecution that 74% of convictions were the result of referrals from state and territory police.[47] Only 22.6% of successful convictions were made by the Australian Federal Police. In consultations the ALRC heard concerns raised that state and territory police may be unwilling or unable to enforce criminal offences due to a lack of training and expertise in Commonwealth procedure which often differs significantly from state and territory police procedures.

15.43 The Department of Communications outlined three options for reform to s 474.17. First, to retain the existing provision and implement education programs to raise awareness of its potential application. Second, to create a cyber-bullying offence with a civil penalty regime for minors. Third, to create a take-down system and accompanying infringement notice scheme to regulate complaints about online content.

[27] Criminal Code (Cth) s 189; Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13; Criminal Code Act 1899 (Qld) s 395B; Criminal Law Consolidation Act 1935 (SA) s 19AA; Criminal Code Act 1924 (Tas) s 192; Crimes Act 1958 (Vic) s 21A; Criminal Code Act Compilation Act 1913 (WA) s 338D; Crimes Act 1900 (ACT) s 35.

[28] See for example, Criminal Code Act (NT) s 189(1A).

[29] Criminal Code Act 1899 (Qld) s 359A; Crimes Act 1900 (ACT) s 35.

[30] Criminal Code Act 1924 (Tas) s 192.

[31] Women’s Legal Services NSW, Submission 115; Free TV, Submission 109; Public Interest Advocacy Centre, Submission 105; ASTRA, Submission 99; Australian Sex Party, Submission 92; S Higgins, Submission 82; National Children and Youth Law Centre, Submission 61.

[32] National Children and Youth Law Centre, Submission 61.

[33] Public Interest Advocacy Centre, Submission 105.

[34] Criminal Code Act 1995 (Cth) sch, s 474.17.

[35] Ibid sch, s 474.15.

[36] At the Bullying, Young People and the Law Symposium hosted by the Alannah and Madeline Foundation in Sydney in July 2013, delegates recommended that Australian governments introduce a specific, and readily understandable, criminal offence of bullying, including cyber-bullying, involving a comparatively minor penalty to supplement existing laws which are designed to deal with more serious forms of conduct.

[37] R v Hampson [2011] QCA 132.

[38] Agostino v Cleaves [2010] ATSC 19.

[39] R v Ogawa [2009] QCA 307.

[40] Family Law Act 1975 (Cth) s 4AB(2)(c).

[41] Australian Government, ‘Enhancing Online Safety for Children: Public Consultation on Key Election Commitments’ (Department of Communications, January 2014). The Government has founded an Online Safety Consultative Working Group to provide advice to government on online safety issues.

[42] Australian Federal Police, Submission 67.

[43] Aashish Srivastava, Roger Gamble and Janice Boey, ‘Cyberbullying in Australia: Clarifying the Problem, Considering the Solutions’ (2013) 21 International Journal of Children’s Rights 25.

[44] Facebook, Submission to Department of Communication’s Enhancing Online Safety for Children Report 2014.

[45] Google, Submission to Department of Communication’s Enhancing Online Safety for Children Report 2014.

[46] Australian Government, above n 41, 21.

[47] Advice correspondence, CDPP, 2 May 2014.