Stalking Laws in Australia

exanon · Mar 29, 2008

Stalking Laws in Australia

Victoria - Crimes Act 1958 (Vic) s21A

(1) A person must not stalk another person.

Penalty: Level 5 imprisonment (10 years maximum).

(2) A person (the offender) stalks another person (the victim) if the offender
engages in a course of conduct which includes any of the following-

(a) following the victim or any other person;

(b) 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;

(c) entering or loitering outside or near the victim's or any other
person's place of residence or of business or any other place
frequented by the victim or the other person;

(d) interfering with property in the victim's or any other person's
possession (whether or not the offender has an interest in the
property);

(e) giving offensive material to the victim or any other person or leaving
it where it will be found by, given to or brought to the attention of,
the victim or the other person;

(f) keeping the victim or any other person under surveillance;

(g) acting in any other way that could reasonably be expected to arouse
apprehension or fear in the victim for his or her own safety or that
of any other person-

with the intention of causing physical or mental harm to the victim or of
arousing apprehension or fear in the victim for his or her own safety or that
of any other person.

(5) Despite anything to the contrary in the Crimes (Family Violence) Act 1987,
the Court within the meaning of that Act may make an intervention order under
that Act in respect of a person (the defendant) if satisfied on the balance of
probabilities that the defendant has stalked another person and is likely to
continue to do so or to do so again and for this purpose that Act has effect
as if the other person were a family member in relation to the defendant
within the meaning of that Act if he or she would not otherwise be so.

This could be a tripping point:

(4A) In a proceeding for an offence against subsection (1) it is a defence to
the charge for the accused to prove that the course of conduct was engaged in
without malice-

(a) in the normal course of a lawful business, trade, profession or
enterprise (including that of any body or person whose business, or
whose principal business, is the publication, or arranging for the
publication, of news or current affairs material); or

NSW - Crimes Act 1900 (NSW) s562AB

Stalking is defined as acts engaged in which amount to intimidation within the context of a domestic relationship.
The offender must intend to cause person to fear personal injury to either themselves or another person in that
domestic relationship. The penalty is up to two years imprisonment or a fine of $5 000

Source: http://www.aic.gov.au/conferences/stalking/Ogilvie1.pdf

QLD - Criminal Code Act 1899 (QLD) s359A and s359B

In this chapter--
circumstances means the following circumstances--

(a) the alleged stalker's circumstances;

(b) the circumstances of the stalked person known, foreseen or reasonably foreseeable by the alleged stalker;

(c) the circumstances surrounding the unlawful stalking;

(d) any other relevant circumstances.
detriment includes the following--

(a) apprehension or fear of violence to, or against property of, the stalked person or another person;

(b) serious mental, psychological or emotional harm;

(c) prevention or hindrance from doing an act a person is lawfully entitled to do;

(d) compulsion to do an act a person is lawfully entitled to abstain from doing.

[SIZE=-1]Examples of paragraph (c)-- [/SIZE]

[SIZE=-1]A person no longer walks outside the person's place of residence or employment. [/SIZE]

[SIZE=-1]A person significantly changes the route or form of transport the person would ordinarily use to travel to work or other places. [/SIZE]

[SIZE=-1]Example of paragraph (d)-- [/SIZE]

[SIZE=-1]A person sells a property the person would not otherwise sell. [/SIZE]
property, of a person, means--

(a) property in which the person has an interest,20 whether or not the defendant also has an interest in the property; or

(b) property that is otherwise--

(i) used and enjoyed by the person; or

(ii) available for the person's use or enjoyment; or

(iii) in the person's care or custody; or

(iv) at the premises at which the person is residing.
stalked person see section 359B.
unlawful stalking see section 359B.
violence--

(a) does not include any force or impact within the limits of what is acceptable as incidental to social interaction or to life in the community; and

(b) against a person includes an act depriving a person of liberty; and

(c) against property includes an act of damaging, destroying, removing, using or interfering with the property.

s359B

Unlawful stalking is conduct--

(a) intentionally directed at a person (the stalked person); and

(b) engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and

(c) consisting of 1 or more acts of the following, or a similar, type--

(i) following, loitering near, watching or approaching a person;

(ii) contacting a person in any way, including, for example, by telephone, mail, fax, email or through the use of any technology;

(iii) loitering near, watching, approaching or entering a place where a person lives, works or visits;

(iv) leaving offensive material where it will be found by, given to or brought to the attention of, a person;

(v) giving offensive material to a person, directly or indirectly;

(vi) an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence;

(vii) an act of violence, or a threat of violence, against, or against property of, anyone, including the defendant; and

(d) that--

(i) would cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to, or against property of, the stalked person or another person; or

(ii) causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.

South Australia - Criminal Code Consolidation Act 1935 (SA) s19AA

(1) A person stalks
another if—

(a) on at least two separate occasions, the person—

(i) follows the other person; or

(ii) loiters outside the place of residence of the other person or some other place frequented by the other person; or

(iii) enters or interferes with property in the possession of the other person; or

(iv) gives or sends offensive material to the other person, or leaves offensive material where it will be found by, given to or brought to the attention of the other person; or

(iva) publishes or transmits offensive material by means of the internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, the other person; or

(ivb) communicates with the other person, or to others about the other person, by way of mail, telephone (including associated technology), facsimile transmission or the internet or some other form of electronic communication in a manner that could reasonably be expected to arouse apprehension or fear in the other person; or

(v) keeps the other person under surveillance; or

(vi) acts in any other way that could reasonably be expected to arouse the other person's apprehension or fear; and

(b) the person—

(i) intends to cause serious physical or mental harm to the other person or a third person; or

(ii) intends to cause serious apprehension or fear.

(2) A person who stalks another is guilty of an offence.

Maximum penalty:

(a) for a basic offence—imprisonment for 3 years;

(b) for an aggravated offence—imprisonment for 5 years.

(3) A person who is charged with stalking is (subject to any exclusion in the instrument of charge) to be taken to have been charged in the alternative with offensive behaviour 1 so that if the court is not satisfied that the charge of stalking has been established but is satisfied that the charge of offensive behaviour has been established, the court may convict the person of offensive behaviour.

(4) A person who has been acquitted or convicted on a charge of stalking may not be convicted of another offence arising out of the same set of circumstances and involving a physical element that is common to that charge.

(5) A person who has been acquitted or convicted on a charge of an offence other than stalking may not be convicted of stalking if the charge of stalking arises out of the same set of circumstances and involves a physical element that is common to the charge of that other offence.

(6) For the purposes of this section, the circumstances of a dealing with material may be taken into account in determining whether the material was offensive material but, if material was inherently offensive material, the circumstances of a dealing with the material cannot be taken to have deprived it of that character.

WA - Criminal Code Act 1913 (WA) s338D and s338E

(1) In this Chapter —

“circumstances of aggravation”, without limiting the definition of that expression in section 221, includes circumstances in which —

(a) immediately before or during or immediately after the commission of the offence, the offender is armed with any dangerous or offensive weapon or instrument or pretends to be so armed; or

(b) the conduct of the offender in committing the offence constituted a breach of a condition on which bail has been granted to the offender;

“intimidate”, in relation to a person, includes —

(a) to cause physical or mental harm to the person;

(b) to cause apprehension or fear in the person;

(c) to prevent the person from doing an act that the person is lawfully entitled to do, or to hinder the person in doing such an act;

(d) to compel the person to do an act that the person is lawfully entitled to abstain from doing;

“pursue”, in relation to a person, includes —

(a) to repeatedly communicate with the person, whether directly or indirectly and whether in words or otherwise;

(b) to repeatedly follow the person;

(c) to repeatedly cause the person to receive unsolicited items;

(d) to watch or beset the place where the person lives or works or happens to be, or the approaches to such a place;

(e) whether or not repeatedly, to do any of the foregoing in breach of a restraining order or bail condition.

(2) For the purpose of deciding whether an accused person has pursued another person —

(a) the accused is not to be regarded as having communicated with or followed that person on a particular occasion if it is proved by or on behalf of the accused that on that occasion the accused did not intend to communicate with or follow that person;

(b) an act by the accused on a particular occasion is not to be taken into account for the purpose of deciding whether the accused watched or beset a place where that person lived, worked or happened to be, or the approaches to such a place, if it is proved by or on behalf of the accused that on that occasion the accused did not know it was such a place.

[Section 338D inserted by No. 38 of 1998 s. 4(1); amended by No. 38 of 2004 s. 71.]

338E. Stalking

(1) A person who pursues another person with intent to intimidate that person or a third person, is guilty of a crime and is liable —

(a) where the offence is committed in circumstances of aggravation, to imprisonment for 8 years; and

(b) in any other case, to imprisonment for 3 years.

Alternative offence: s. 338E(2).

Summary conviction penalty:

(c) in a case to which paragraph (a) applies: imprisonment for 2 years and a fine of $24 000;

(d) in a case to which paragraph (b) applies: imprisonment for 18 months and a fine of $18 000.

(2) A person who pursues another person in a manner that could reasonably be expected to intimidate, and that does in fact intimidate, that person or a third person is guilty of a simple offence.

Penalty: imprisonment for 12 months and a fine of $12 000.

(3) It is a defence to a charge under this section to prove that the accused person acted with lawful authority.

[Section 338E inserted by No. 38 of 1998 s. 4(1); amended by No. 70 of 2004 s. 35(7), 35(8) and 36(3).]

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