Thank you, Mr Speaker. First of all, I do want to absolutely acknowledge the serious harm that stalking causes. I just want to recognise that this is part of a significant shift in our law that has happened over the past few years—that, for a long time, our law really focused on physical harm, and it was very rare indeed that psychological harm to another person was seen as giving rise to any kind of criminal responsibility.
This is a further extension of things like the offences under the Harassment Act and the Harmful Digital Communications Act. I guess I want to take a slightly legalistic approach, because it does throw up some real challenges about how we approach that. Before we do that, I want to also recognise the advocacy around this from numerous people and groups—far too many to name—and the fact that their work has led to this legislation coming before the House. I think it’s really heartening, and those people can feel rightly proud.
I also want to recognise Ginny Andersen’s work in this space. She also worked tirelessly with those advocates, and, in taking action, including drafting her own member’s bill, and I want to be clear that but for that member’s bill, the Minister of Justice would have continued to say that this isn’t a priority. It’s a really good example of how, in Opposition, we can have change and create change. But good on the Government, and I want to also recognise one other thing: as we sat around that select committee table, we all agreed in principle that this was a terrible state of affairs that needed to change, and we worked on making it better, and made substantial changes to the legislation as it went through the committee. So all of those are good things.
The stalking offence that this creates—I want to point one thing out—is a very serious offence. The maximum imprisonment for it is five years, so it puts it very much at the upper end, not up with serious violent offending, but very much in the upper echelons of offending. So we’ve got to be really clear that, yes, engaging in harassing or stalking behaviour is very bad, but we need to set the threshold for what that is, at a level that is commensurate with putting someone who’s a serious offender in jail for five years. It’s not a trivial offence; it’s a serious offence. So we need to recognise that.
If you look at the conduct—what’s the technical term?—the “specified acts”, some of them are obviously troubling: loitering and following home, or obstructing a person; things like that. But equally, others are things that people would do not as a matter of course, but things that nasty people would simply do to be nasty, such as sending electronic messages, or the like.
That’s why there’s quite an interesting provision here, and it’s quite a challenge, and that’s the mental state required. People who engage in stalking behaviour sometimes have a tenuous grasp on reality, you know? Sometimes, they are of a view that what they’re doing is either not a bad thing or will get them back together with an ex-partner, or something of that ilk. The test is that there’s a pattern of behaviour, and the person engaging in that behaviour knows that it’s likely to cause fear or distress. So it’s that “knows”—it’s not “ought to know”, or “a reasonable person would know”; it’s a test of actual knowledge, and I think that’s something that bears further discussion.
One of the reasons in new subsection (3) of the key section there: you have a warning framework where a police officer can go to a person who’s engaged in this behaviour and say—and Tamatha Paul just referred to this—“Hey, look, what you’re doing isn’t OK, it is causing distress, and it would be a stalking event. Now that you know this, you’re on notice.” So when that happens, people can’t then turn around and go, “I thought she liked it when I sent her these sexual messages.”, or whatever it might be, when they’ve been clearly told that that’s not the case. So that’s why that is in there. That’s an important part of the knowledge element. But I think we need to discuss that knowledge element—mens rea, if you want to use the legal term—a little bit more, and ask the question in this House whether we’ve struck the right balance there.
I do want to say this about this piece of legislation: we agree on this side of the House that creating a stalking offence is the right thing to do. But let’s not kid ourselves that it will solve the problem. The problem runs much deeper, and we don’t effect societal change by creating a criminal offence. We don’t effect a change in the way people see what appropriate behaviour and what a healthy relationship is and how to behave when the world doesn’t turn out the way they want, by creating a criminal offence. I think, as leaders in this House and elsewhere, we need to also be clear that we’re leading more than just a legislative change but also a cultural change, but that will be how we keep women in particular safe.
The other thing I’d note is this bill actually deals with some other things that are being bandied around in this House, and in subsection (2) of the proposed section 216P, dealing with specified acts, it talks about the use of artificial intelligence. I know there’s been a lot of discussion around deep fakes. I’m always concerned when we define things too narrowly and we end up having a long list of things that are included and things are always falling outside of it. I think this legislation would capture the use of deep fakes as a tool of harassment.
In terms of the deep fakes in the member’s bill that has been bandied around in this House, the bill actually talks about sexualised images. Deep fakes can be offensive without being sexualised, they can be harassing without being sexualised: they could be an artificial image of the stalker and the victim that’s totally fake. If that was posted on Facebook or simply emailed to the victim, that is stalking and harassing behaviour, and it is captured by this definition. That’s one of the reasons I think this is quite well drafted, because the prohibited behaviour is drafted quite widely, and the test for the behaviour isn’t exactly what you do; it’s the effect that it has. There’s two elements to it: that it has an effect of causing fear or distress, and that it was known to do that. It doesn’t even have to have been intended to do that, as long as you knew that that was what it was going to do.
I think in taking that approach, saying, “If you engage in a behaviour which you know causes distress, that’s stalking; here are some of the kinds of behaviours.”—in a very open-ended way—that’s actually a really good way to draft it. It’s not good drafting it like “You can’t stand outside someone’s home. You can’t send deep-fake images. You can’t send angry texts.”, because a list like that’s never going to work. So what we have here is a good piece of legislation; it’s not perfect.
The other thing I’d just say as a closing remark is that we have a patchwork of legislation in this space: we have domestic violence legislation, protection orders, the Harassment Act, the Harmful Digital Communications Act, intimidation under the Summary Offences Act, and now we have stalking Under the Crimes Act. It’s not satisfactory, and, at some point, we’re going to have to sit down and say that we need to think very carefully about wrongdoing which is about harassment, about fear, about intimidation, about coercion and control, and we need to have a carefully thought-out and unified approach to it. But this is one step in that direction.