Australian Law Cyber Stalking

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Australian law Cyber Stalking

Copied with permission by Australia Human Rights:

This page considers Australian law regarding stalking.

It covers - introduction- the shape of anti-stalker statute and common law AVOsand stalking federallaw - telecommunication, postal, family and other law state/territorylaw - an overview of the state regimes

introduction

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

One reason is uncertainty about the nature, efficacy and specifics of internationalagreements about online communications - evident in comments elsewhere on this siteregardinggovernance,security,censorship,defamationandprivacy.

Another reason is disagreement within and between nations over what constitutesstalking - online and off - and how best to address it. Different nations (and jurisdictionswithin those nations) often have quite different statute and common law regardingharassment.

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

Some note that, in principle, protection is provided by restrictions in telecommunicationlegislation 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 astrespass, watching & besetting premises, loitering, harassment on highway, intimidationand threats causing nervous shock, defamation, public & private nuisance and even falseimprisonment. In practice that protection may be partial and expensive or difficult toobtain. Australian jurisdictions have accordingly moved to some form of anti-harassmentor anti-stalking provisions in their criminal codes.

AVOs and stalking

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

Protection Orders.

The 2002 NSW LRCApprehended Violence Orders discussion papernotesthatAnti-stalking legislation is inherently difficult to draft. The offence is by nature imprecise,as behaviour which is otherwise considered quite ordinary becomes threatening in
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context: "the difficulty in defining stalking as a concept lies in its paradoxical status asan act that is ambiguously located somewhere between crime and conformity". While

stalking is qualitatively different from the legitimate pursuit of a love interest, it isdifficult to clarify at what point the behaviour warrants criminal sanction. Because of thisinherent imprecision, it is difficult to set clear parameters in the legislation. ...

There is significant overlap between AVOs and stalking and intimidation. The sameconduct may give rise to an offence of stalking and intimidation and also constitutegrounds for an AVO. Both deal with action which may not be criminal in isolation but, incontext, could be serious enough to warrant legal intervention. A court can grant an AVOwhere the person seeking protection has reasonable grounds to fear, and in fact fears,harassment, molestation, intimidation or stalking, sufficient to warrant the making of theorder. 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. Ifa person is charged with stalking or intimidation, the court must make an interim AVOfor the protection of the alleged victim. A final order is made if the accused is foundguilty

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 resideor work, or other premises3 enter premises at which the protected person/s may from time to time reside or work,

or other specified premises4 go within the premises at which the protected person/s may from time to time resideor work, or other specified premises

5 approach, contact or telephone the protected peron/s except as agreed in writing orfor 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 childrenunder the Family Law Act 1975

6 contact the protected person/s by any means (including through a third person) exceptthrough the defendant's legal representative;7 fail to surrender all firearms and related licenses to Police8 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 premises9 approach the protected person/s within twelve hours of consuming intoxicating liquoror drugs

10 destroy or deliberately damage or interfere with the property of the protectedperson/s.AVOs can be made by consent and without any admission of wrongdoing, avoiding theneed for the matter to proceed to a court hearing and thus offering a cost effective wayfor 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 andstate/territory governments under the 1901Constitution.

In essence, the national government has substantial authority under its powers toregulate telecommunications, conceivably encompassing restrictions on harassment via

the net, by voice and by SMS. The 'provincial' governments have powers through theircriminal codes and other legislation, including law about covert surveillance.
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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 aboutcybersuicideoffers a possible precedent for some form of national cyberstalkingenactment.

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

Section 471.11 of the Criminal Code Act 1995thus makes it an offence to use a postal orsimilar 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' notrequired: " it is not necessary to prove that the person receiving the threat actuallyfeared that the threat would be carried out".

Section 471.12 deals with use of a postal or similar service to menace, harass or causeoffence. 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 aperson (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 thethreat 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 bystate/territory Childrens Courts.

state/territory law

State/territory legislation regarding stalking essentially defines stalking as acts that areengaged in on more than one occasion and that are intended to cause fear or

apprehension in the individual. The legislation varies considerably from jurisdiction tojurisdiction. In Queensland and Victoria it specifically include sending electronicmessages to (or otherwise contacting) the victim.

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

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

In the absence of extensive case law some observers have thus speculated thatmagistrates might take an unduly sceptical view of cyberstalking, on the basis that theabsence of physical proximity between victims and offenders would reduce fear. Others
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have noted that fear can be induced through postal/other mail and that some offendersdemonstrate 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 officialduties 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 leasttwo separate occasions, which could be expected to arouse the other person'sapprehension or fear. The offender must intend to cause apprehension (or fear of)serious harm or cause serious harm. As in other jurisdictions, penalties are tougherwhere 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 ofan 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 adomestic relationship. The offender must intend to cause the victim to fear personalinjury 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'sapprehension 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 behaviouralso 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 atleast two separate occasions that are intended to and result in fear, apprehension orphysical 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 jurisdictionto criminalise stalking when legislation was passed in that State in 1993. The QLDpenalty 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 yearsimprisonment).

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

In South Australia stalking is defined as acts engaged in on at least two separateoccasions that could be reasonably expected to arouse serious apprehension or fear. Theoffender must intend to cause serious physical or mental harm or serious apprehensionor fear. The penalty is up to three years imprisonment, unless the offender's action alsoinvolves possession of an offensive weapon or contravenes a court order (with a penaltyof 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 ormental 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. Thepenalty is up to 21 years imprisonment.


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Associated legislation includes theJustices Act 1959.

In Victoria under the Crimes Act1958 (CA) - stalking is defined as engaging in a courseof 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 frequentedby the victim; interfering with the victims property; keeping the victim undersurveillance; and engaging other person/s to do any of the above. The offender's actionmust have the intended result, eg must result in apprehension or fear. intended by theoffender. The penalty is up to 10 years imprisonment.

The legislation was updated by the Crimes (Stalking) Act 2003, which extended thedefinition of stalking to include -contacting the victim or any other person by post, telephone, fax, text message, e-mailor 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 otherelectronic communicationsAssociated legislation includes the Crimes (Family Violence) Act 1987.

Under the Western Australian Criminal Code (s338C-D ands338E) stalking involvespursuing "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 personto 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 theoffender's activity does in indeed intimidate. Penalties range from up to 18 monthsimprisonment (in the Court of Summary Jurisdictions) to up to 8 years (in the highercourt 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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Australian Law Cyber Stalking

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