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1.2.2.1 - Definition of stalking includes bullying behaviour

In 2011, the Crimes Amendment (Bullying) Act 2011 amended the definition of stalking in s21A of the Crimes Act 1958 and s10 of the PSIO Act (the sections are identical).

Section 9(2) of the Crimes Amendment (Bullying) Act 2011 inserted new conduct into the list of stalking behaviour capable of constituting a ‘course of conduct’ in s10(1) of the Act. The new conduct includes behaviour often considered to constitute bullying, namely:

(viia) making threats to the victim;

(viib) using abusive or offensive words to or in the presence of the victim;

(viic) performing abusive or offensive acts in the presence of the victim;

(viid) directing abusive or offensive acts towards the victim.

The amendments also broadened the description of a ‘course of conduct’ which could constitute ‘stalking’ in s10(1)(b) of the PSIO Act. Following the amendments, s10(1)(b)(x) now refers to:

(x) acting in any other way that could reasonably be expected –

(A) to cause physical or mental harm to the victim, including self–harm; or

(B) to arouse apprehension or fear in the victim for his or her own safety or that of any other person.

Prior to the amendments, s10(1)(a) required the offender to intend to cause physical or mental harm to the victim. Sections 9(1) and (4) of the Crimes Amendment (Bullying) Act 2011 amended this fault element to include the intention to cause a person to engage in self–harm.

As a corollary of the above amendments, new s10(3) was inserted into the PSIO Act to define ‘mental harm’ as including psychological harm and suicidal thoughts.

The Attorney–General explained the rationale for the amendments as:

In order to ensure that serious bullying behaviour is clearly dealt with by the Crimes Act, the bill amends the current stalking provisions in four key ways.

First, the bill makes clear that threats and abusive and offensive words or acts may form part of the course of bullying conduct.

Second, the bill broadens the description of a ‘course of conduct’ to include any conduct that could reasonably be expected to cause the victim to physically harm themselves. While it is clear that the current provision will apply to conduct causing a victim to fear harm at the hands of the perpetrator, it is not clear whether it extends to conduct which causes a person to harm themselves. This amendment is necessary to make clear that the offence extends to conduct which causes a victim to engage in self–harm.

Third, the bill provides that the fault element includes the intention to cause the victim to physically harm themselves. Under the existing provisions, it is unclear whether the intention to cause harm extends to cover an intention to cause the victim to harm themselves. The bill will resolve this uncertainty and make clear that the requisite intention for stalking includes the intention to cause a person to harm themselves.

Fourth, the bill expressly provides that, for the purposes of this offence, mental harm includes psychological harm and causing a victim to engage in suicidal thoughts. Currently, the term ‘mental harm’ is not defined. Bullying is behaviour that is calculated to cause mental harm to others. The behaviour often results in a victim suffering from a sense of powerlessness and despair. In some cases, the distress bullying causes its victims is so severe that it causes the victim to engage in suicidal thoughts. The bill therefore makes clear that mental harm includes psychological harm and causing a victim to have suicidal thoughts.

[Crimes Amendment (Bullying) Bill 2011, Second Reading Speech, Legislative Assembly, 6 April 2011, pp1019–1020]

Last updated: 1 September 2011

See Also

1.2.2 - Stalking – s 10

1.2.2.2 - Requisite intention