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Crimes (Stalking and Family Violence) Bill
Circulation Print
EXPLANATORY MEMORANDUM
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the proposed Act, which is to amend the
Crimes Act 1958 with respect to the offence of stalking to ensure
that the offence--
· covers cyberstalking;
· no longer requires proof as to the actual effect on the
victim of the course of conduct engaged in by the
offender; and
· has extra-territorial operation.
and to amend the Crimes (Family Violence) Act 1987--
· to ensure that intervention orders can be made by
consent; and
· to validate certain orders made by consent before the
commencement of this Act.
Clause 2 provides that the Act will commence on the day after the day on
which it receives the Royal Assent.
PART 2--AMENDMENT OF CRIMES ACT 1958
Clause 3 This clause extends the definition of "course of conduct" in
section 21A(2) of the Crimes Act 1958 to specifically cover
cyberstalking conduct.
Section 21A(2) of the Crimes Act 1958 lists a number of types
of conduct which, if they form part of a course of conduct, may
constitute stalking.
Concern has been expressed that the rapid development of
technology, particularly the Internet, has provided new ways for
stalkers to locate, contact and potentially harm their victims and
that section 21A(2) may not adequately cover these situations.
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The amendment in this clause makes it clear that if on-line
stalking conduct forms part of a course of conduct, it may
constitute the offence of stalking.
Clause 4 This clause amends the Crimes Act 1958 by removing the
requirement that a course of conduct that may constitute stalking
must result in physical or mental harm to the victim or
apprehension or fear in the victim for his or her safety.
The intention on the part of the offender to cause fear, or the fact
that the offender ought to have understood that the target would
be frightened, is the key factor that should make the behaviour
criminal. The fact that a target of stalking is not easily frightened
or not aware of the behaviour should not prevent a prosecution.
The amendment in this clause is consistent with the offence of
threatening to kill another person, which is contained in
section 20 of the Crimes Act 1958.
Clause 5 This clause gives the offence of stalking extra-territorial
operation. As a result of this clause, section 21A will apply to a
person overseas or interstate who stalks a victim in Victoria and a
person in Victoria who stalks a victim overseas or interstate.
Clause 6 This clause provides that the amending Act only applies to
offences alleged to have been committed on or after the
commencement of the amending Act.
If the alleged offence occurs between two dates--one before and
one after the commencement of the amending Act--the alleged
offence is deemed to have been committed prior to the
commencement of the amending Act.
This clause acknowledges the nature of stalking and the
requirement that the offender engage in a course of conduct in
order for the behaviour to constitute stalking.
The case of DPP v Sutcliffe involved the interpretation of
whether section 21A(2) has extra-territorial operation.
Clause 6(3) makes it clear that clause 6 does not affect the rights
of the parties in that case (which is currently listed for hearing by
the Court of Appeal).
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PART 3--AMENDMENTS OF CRIMES (FAMILY VIOLENCE)
ACT 1987
Clause 7 substitutes a new section 14 in the Crimes (Family Violence)
Act 1987 which allows a court to make an intervention order if
the parties to the proceeding consent to the making of the order.
This clause expands on the previous section 14 by allowing the
court to make an intervention order--
· without being satisfied of any of the matters referred to
in section 4(1) of the Crimes (Family Violence) Act
1987 or section 21A(5) of the Crimes Act 1958; and
· whether or not the defendant admits to any or all of the
particulars of the complaint.
This clause ensures that intervention orders can be made by the
court based solely on the grounds of the consent of the parties.
There is no requirement that the court hear evidence.
However, the amendment in this clause also provides that before
making an intervention order with the consent of the parties the
court may conduct a hearing in relation to the complaint if, in its
opinion, the interests of justice require it.
This provides that, although the court does not have to hear
evidence when making an intervention order based on the parties'
consent, the court may hear evidence in any case in which it
considers evidence is necessary.
Clause 8 adds new section 25AB which validates certain orders made
pursuant to the Crimes (Family Violence) Act 1987 while
preserving the rights of parties involved in certain proceedings
before the commencement of this Act.
New section 25AB(1) ensures that intervention orders made
before the commencement of these amendments which were
made with the consent of the parties, without the court
necessarily being satisfied of any of the matters in section 4(1) or
section 21A(5) of the Crimes Act 1958, may not be ruled invalid
merely because they were made in this manner.
New section 25AB(2)(a) protects the rights of the parties to the
proceeding in the Supreme Court decision of Stephens v Melis &
Ors in which an intervention order was held to be invalid on the
grounds that it was made with the consent of the parties without
the court being satisfied of any of the matters referred to in
section 4(1). The rights in this case are expressly protected
because the validity of the order was raised on an originating
motion seeking the quashing of the order rather than on a
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prosecution for a breach of the order and so this particular case is
not covered by new section 25AB(2)(b).
New section 25AB(2)(b) ensures that this Act will not alter the
positions of the parties who were involved in proceedings for a
breach of an intervention order where the proceedings were
dismissed before the commencement of this Act on the grounds
that the court made the intervention order without being satisfied
as to any of the matters referred to in section 4(1) of the Act or
section 21A(5) of the Crimes Act 1958.
In these cases, the intervention order will have been ruled to have
been invalidly made and clause 25AB(1) will not operate to
revive that order.
Clause 9 provides that the validation of certain orders provided for by
clause 8 is intended to alter or vary section 85 of the
Constitution Act 1975.
New section 25B(2) is necessary as this Act, by validating
existing intervention orders, removes an avenue of appeal that
was potentially available to recipients of intervention orders who
were convicted of a breach of that order before the
commencement of this Act.
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