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1
Criminal Law Amendment
CRIMINAL LAW AMENDMENT BILL
1993
EXPLANATORY NOTES
OUTLINE
Objective of the Legislation
The objective of the Bill is to provide for a new indictable offence of
stalking to be inserted into the Queensland Criminal Code. The Bill
provides for a two level offence; straightforward stalking which will attract
a maximum sentence of three years imprisonment and aggravated stalking
which will attract a maximum sentence of five years imprisonment. The
Bill also provides for a maximum sentence of 18 months imprisonment
for straightforward stalking if the offence is dealt with summarily in the
Magistrates Court. Because of the more serious nature of the aggravated
form of the offence, it is not an objective of the Bill to provide that
aggravated stalking may be dealt with summarily.
Reasons for the Bill
As part of the Review of the Queensland Criminal Code, many
submissions were received from community and women's interest groups
contending that the criminal law of Queensland did not adequately provide
protection for a person who had been followed, placed under surveillance,
contacted, or been sent offensive items in circumstances where that person
felt harassed, intimidated or threatened.
Although the Criminal Code contains a small number of sections which
extend criminal liability to an offender who does not undertake actual
violence, but causes fear to another or others in narrow and specific
circumstances, the Criminal Code does not generally provide for criminal
liability in cases where a person has been subjected to behaviour which
might reasonably cause an expectation of potential violence.
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Criminal Law Amendment
In order that the criminal law may extend protection to all citizens who
have been subjected to activities which cause them to reasonably believe
they may be the subject of unlawful violence, it is necessary to amend the
Criminal Code by the creation of the offence of stalking. In particular, such
an offence will permit law enforcement authorities to apprehend persons
engaging in stalking conduct before that conduct leads to actual violence. In
the event that actual violence does occur there are contained in the Criminal
Code numerous provisions to charge the offender for the harm done.
However, by the creation of a stalking offence, it is expected that in suitable
cases, an offender may be apprehended and dealt with by a court before the
offender actually perpetrates violent acts.
Estimated Cost for Government Implementation
It is not anticipated that there will be any significant cost to Government
in implementing the amendment proposed.
Consultation
The impetus behind the development of a stalking offence arose from the
consultative process undertaken within the Criminal Code reform project.
In July 1992, the Honourable the Minister for Justice and Attorney-General
and Minister for the Arts released the Final Report of the Criminal Code
Review Committee. Submissions were sought from the Queensland
community on the recommendations contained in the Final Report. A
significant number of the submissions received argued for the introduction
into Queensland's criminal law of a stalking offence.
Consultation has been undertaken in the community through the
Domestic Violence Resource Centre and the Women's Legal Service.
Within government, the Women's Policy Unit (Office of the Cabinet)
and the Department of Police have also supported the development and
introduction of a stalking offence into the Criminal Code.
DETAILS OF THE CLAUSES OF THE BILL
Clause 1 sets out the short title of the Act.
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Criminal Law Amendment
Clause 2 provides for the Criminal Code to be amended as set out in the
Act.
Clause 3 provides for the insertion of two new sections into the Criminal
Code immediately following section 359("Threats").
Proposed section 359A provides for the new crime of unlawful stalking.
The major elements of the offence are that the offender engages in a course
of conduct comprised of two or more separate acts; which conduct is
intended by the offender should be known to the potential victim and which
is in fact known by the victim; and which conduct is such that it would
cause a reasonable person in the potential victim's circumstances serious
concern that an unlawful act of violence may occur to the potential victim,
or a person about whom the potential victim would be reasonably expected
to be concerned, or the property of either such person. A maximum
sentence of three years imprisonment is provided for the offence of
unlawful stalking.
However, if the offender in committing the crime of stalking actually
threatens or uses unlawful violence against the potential victim or other
person; or if the offender has in possession a weapon (as defined in the
Weapons Act 1990); or if the offender in undertaking the conduct
contravenes any injunction or order made by any court, then the crime
attracts a maximum sentence of five years imprisonment.
A defence to the crime of unlawful stalking - with or without the
circumstances of aggravation - has been provided. The defence is to ensure
that no person should be convicted of the crime where the person charged
proves that the relevant course of conduct has been undertaken for the
purposes of a genuine industrial dispute or other genuine public controversy
on an issue or topic of public interest. Thus a person who engages in the
relevant course of conduct for the purposes of, for example, a genuine
environmental protest or political dispute should not be criminally liable for
that conduct. The defence requires that the person charged must prove, on
the balance of probabilities, that the relevant course of conduct was
undertaken for the purposes of a genuine industrial - or other - dispute
carried on in the public interest.
The proposed section 359A also sets out the type of acts which, if
undertaken by the offender, may attract criminal liability. The proposed
section also defines particular terms used within the section.
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Criminal Law Amendment
Proposed section 359B provides that the offence of stalking - when not
aggravated by the particular circumstances set out in proposed section
359A(6)(a) - may be dealt with summarily. In such circumstances, upon
conviction the offender is liable to a maximum sentence of 18 months
imprisonment.
Proposed section 359B also provides that summary jurisdiction in
relation to the offence of stalking must be exercised in the same way as
currently provided in the Criminal Code by section 444.
© The State of Queensland 1993