Problems with the Crimes Legislation (Stalking and Harassment) Amendment Bill

Summary of Key Concerns

This Bill introduces a new criminal offence of stalking and harassment and associated sentencing powers. While it aims to protect victims, there are major legal, ethical, and practical flaws in its current form. The following issues have been identified and compiled by Ukes Baha as part of a public interest analysis.

1. Low Threshold for Criminalisation

The offence is triggered by three 'specified acts' within 12 months that are likely to cause fear or distress — even if minor or unintentional. This risks criminalising lawful or innocuous behaviour.

2. Vague and Broad Definitions

The term "specified act" includes subjective categories like damaging reputation or causing fear to a "reasonable person." The language is open to broad interpretation and abuse in personal, professional, or political contexts.

3. Reversal of the Burden of Proof

A person who receives a police warning notice is automatically presumed to know their behaviour is likely to cause fear or distress — effectively reversing the presumption of innocence.

4. Unclear Treatment of Surveillance Technology

The Bill references tracking devices, spyware, and AI but lacks clear definitions or limits. Lawful uses — such as parental tracking or investigative journalism — could be unfairly penalised.

5. No Explicit Protection for Journalism or Activism

The defences are vague ("public interest", "lawful purpose") and do not explicitly protect protestors, whistleblowers, or journalists — risking misuse to suppress dissent.

6. Weak Oversight of Police Powers

Police may issue harassment warnings without judicial oversight. These warnings trigger legal presumptions and may be used unevenly or strategically during disputes.

7. Inconsistent Sentencing Protections

Restraining orders and digital harm orders are left to judicial discretion, which could result in inconsistent protection for victims and sentencing for offenders.

Conclusion and Recommendations

• Raise the threshold for criminalisation (e.g. 5+ acts or proof of intent).
• Clarify definitions of "specified act" and "fear or distress".
• Remove or limit the police notice presumption unless judicially reviewed.
• Add clear statutory defences for journalists, activists, and whistleblowers.
• Mandate a post-enactment review to monitor misuse or overreach.

Formal Sponsor: Hon Paul Goldsmith
Likely Policy Author: Simeon Brown (based on prior public advocacy)