Australia: Stalking changes up the ante on bullying

The Crimes Amendment (Bullying) Bill 2011 has now received Royal Assent and has passed into legislation. The amendments brought in by this Act are significant. They amend the Crimes Act 1958 (Vic) (Crimes Act) to extend the circumstances of stalking to include, what we euphemistically and often confusingly term, "bullying".

The Brodie Panlock Case

The amendments to the Crimes Act are generally referred to as 'Brodies' Law, after the bullying case involving Brodie Panlock, an employee of Café Vamp, who committed suicide after being subjected to sustained and serious bullying in the workplace. In February 2010, the owner of Café Vamp, its manager, Nicholas Smallwood, employees Rhys MacAlpine and Gabriel Toomey and the company pleaded guilty to and were convicted of offences under the Occupational Health & Safety Act 2004 (Vic) (OHS Act) and fined a total of $335,000. Neither the owners of the business nor the manager or employees were charged by Victoria Police with offences under the Crimes Act which existed at the time.

At the time there was a public outcry that imprisonment was not a penalty that could have been ordered by the Court for the offences with which the men were charged.

Significantly, under the Crimes Act a person guilty of stalking, now including "bullying", is punishable by a maximum term of 10 years imprisonment.

Stalking and the "Brodie" law changes

In 1994 the Crimes Act was amended to include a new offence of "stalking". Section 21A of the Crimes Act states that a person (the offender) stalks another person (the victim) if the offender "engages in a course of conduct". The Crimes Act includes a list of the types of relevant conduct.

The "Brodie" amendments broaden the type of 'conduct' which can now be considered to be stalking under the Crimes Act to include a person:

  • making threats to the victim
  • using abusive or offensive words to or in the presence of the victim
  • performing abusive or offensive acts in the presence of the victim, and
  • directing abusive or offensive acts towards the victim

Stalking now also includes acting in any other way that could reasonably be expected to cause a victim to engage in "self-harm".

The course of conduct engaged in by the offender may also include acting in any other way that could reasonably be expected—
   (i) to cause physical or mental harm to the victim, including self-harm, or
   (ii) to arouse apprehension or fear in the victim for his or her own safety 
   or that of any other person.

To be convicted of stalking, an offender must have engaged in a "course of conduct" intended to:

  • cause physical or mental harm to the victim, or
  • arouse apprehension or fear in the victim for their own safety or that of another person.

To be a "course of conduct" under the Crimes Act, the conduct must be engaged in more than on one occasion or it must be protracted. The "course of conduct" must be a pattern of conduct evidencing a continuity of purpose on the part of the alleged offender. For the offender to have the requisite intent, it is sufficient that (1) she or he knew, or ought to have understood that engaging in the course of conduct would be likely to cause such harm or arouse such apprehension or fear and that (2) it actually did have that result.

A definition of "mental harm" has also been inserted and includes psychological harm and suicidal thoughts: (s.21A(8)) This means that stalking now includes circumstances where a person intends to cause the victim to engage in self-harm, including suicide.

Under the existing section 21A (6) and (7), the stalking provisions apply so long as either the victim is located in Victoria or if the conduct alleged to be stalking, occurred in Victoria. This ensures that stalking via social media, texts and telephone across state borders is covered under the Crimes Act stalking provisions.

Because these are criminal offences, there are also the important collateral issues of incitement to commit an offence, attempts to commit an offence, being an accessory to an offence and concealing an offence for a benefit.

Intervention Orders

Parliament's changes also include amendments to the Stalking Intervention Orders Act 2008 (Vic) and the Personal Safety Intervention Orders Act 2010 (Vic), which allow victims to apply for intervention orders to be protected against stalking situations where the above amendments apply.

What this means for Employers

While the Brodie law amendments do not only or specifically relate to workplaces, as the Brodie case itself so tragically demonstrated, bullying behaviour can and does occur at work and therefore the amendments apply to workplace behaviour and to employers who are responsible for workplace behavioural standards.

Employers have legal obligations under the Occupational Health and Safety Act(Vic) 2004 to provide and maintain for employees a working environment that is safe and without risks to safety and health, so far as is reasonably practicable, including:

  • providing and maintaining systems of work
  • monitoring the health of employees
  • providing information, instruction, training and supervision.

While bullying is not specifically identified or defined in the OHS Act, it is defined in guidance material published by WorkSafe as 'repeated unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety'. The amendments to the Crimes Act must now inform interpretations of bullying for the purposes of the OHS Act.

In light of the Brodie laws, employers should take the opportunity to:

  • review their bullying and harassment policies, instructions and procedures
  • provide refresher training to staff on bullying and appropriate workplace behaviour and
  • ensure that there are appropriate procedures in place to deal with bullying complaints.

Further information

You would have already received the invitation to the free breakfast seminar we are running in our Melbourne office on the amendments to the Crimes Act. The seminar will be held on 6 July, be sure to respond quickly to reserve your place.

In the meantime should you have any questions or require further information please contact a member of our team.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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