Stalking: Consultation Paper (html)

Terms of reference

Reference under section 5 of the Victorian Law Reform Commission Act 2000.

Responses to stalking, harassment and similar conduct, and the related use of Personal Safety Intervention Orders

Stalking is a set of behaviours that can cause great harm to victims’ mental and physical health. If not addressed, it can also escalate to include other types of serious offending, more serious offending, including serious violence and—tragically—homicide and suicide.

Due to technological advancements, types of stalking behaviour have evolved and can be carried out remotely, without physical proximity to the victim.

The VLRC is asked to review and report on Victoria’s legal responses to stalking, harassment and similar conduct, including the statutory framework for and operation of the Personal Safety Intervention Order (PSIO) system, drawing upon best practice from the family violence system, criminological research and victim support services. The review should identify barriers to current law effectively responding to stalking, harassment and similar conduct, and make recommendations to address these barriers and improve the justice system’s response, with victim safety and wellbeing the paramount consideration.

Stalking behaviours can occur in both a family violence and non-family violence context. However, while a specialist, cohesive approach to these behaviours has been developed in a family violence context, less attention has been devoted to the non-family violence response. Additional measures may be required to maximise victim safety and wellbeing and perpetrator accountability, and to allow for more effective early interventions in cases of high or escalating risk. The review may consider mechanisms from the family violence context, such as family violence safety notices and the prohibition on cross-examination by the respondent/accused person. New measures responding to stalking in both family violence and non-family violence contexts should also be considered, such as electronic monitoring as a condition of an intervention order, and responses that address technology-facilitated abuse.

While stalking is committed by people of all genders, the VLRC is requested to note that most perpetrators of stalking are men, and most victims of stalking are women.

The review should consider:

• the law on stalking, harassment or similar conduct including:

– operation of the Personal Safety Intervention Orders Act 2010 (Vic), including consideration of how the legislative framework and operation differs from the scheme for Family Violence Safety Notices and Family Violence Intervention Orders under the Family Violence Protection Act 2008

– how breaches of personal safety intervention orders are treated under the relevant legislation and responded to within the context of those statutory frameworks

– the existing criminal offences applying to stalking, harassment and similar conduct, including consideration of the scope, elements and adequacy of the offence of stalking in the Crimes Act 1958 and the evidence required to establish the offence

– how the law could be strengthened to promote and enhance victim safety and wellbeing

– the interaction between existing laws where the conduct occurs online

– ancillary laws of evidence and procedure

• barriers to reporting for victims of stalking

• sentencing practices and available sentencing options.

In conducting this review, the Commission should have regard to:

• The findings of the Royal Commission into Family Violence (2016) and the actions taken by the Victorian Government and justice system in response to the Royal Commission’s recommendations.

• Reports of the Royal Commission into Victoria’s Mental Health System (2019).

The VLRC is required to:

• prepare an interim report by 31 December 2021, with the content of such a report to be determined by the Commission, in consultation with the Department of Justice and Community Safety; and

• prepare a final report on the reference by 30 June 2022.