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Sunday, 10 April 2011

Legislation Watch: Crimes Amendment (Bullying) Bill 2011

The Crimes Amendment (Bullying) Bill 2011 was in the media a bit last week. The Introductory Print is here. The Explanatory Memorandum is here. The Statement of Compatibility is here and the Second Reading is here.



The Bill adds definitions to the Crimes Act 1958, the Stalking Intervention Orders Act 2008 and the Personal Safety Intervention Orders Act 2010 (this last one isn't in force yet. It has a forced commencement date of 1st January 2012, but might commence this year). Arguably, the amendments are unnecessary. But given Parliament's specific identification of behaviour that might induce self-harm as stalking, the number of applications and charges of this type will probably go up.





The Second Reading speech groups the changes into four categories:



  • threats and abusive and offensive words or acts may form part of the course of bullying conduct

  • the description of a course of conduct will include any conduct that could reasonably be expected to cause the victim to physically harm themselves

  • the requisite intention for stalking includes the intention to cause a person to harm themselves

  • mental harm includes psychological harm and causing a victim to have suicidal thoughts.




This Bill is designed to deal with the specific circumstances of one bullying incident where the perpetrators were charged and convicted under the Occupational Health and Safety Act 2004 in the Magistrates' Court last year. Three employees were fined $45,000, $30,000 and $10,000 each. The manager was fined $30,000 and his company $220,000. There's no suggestion that the sentencing court would have imposed more severe penalties had they been available, but it appears Parliament thinks tougher penalties are needed.



On my reading of it, they already exist. The Occupational Health and Safety Act isn't one I'm familiar with, but its s 32 provides,



32. Duty not to recklessly endanger persons at workplaces



A person who, without lawful excuse, recklessly engages in conduct that places
or may place another person who is at a workplace in danger of serious injury
is guilty of an indictable offence and liable to-



(a) in the case of a natural person, a term of imprisonment not exceeding 5 years, or a fine not exceeding 1800 penalty units, or both; and

(b) in the case of a body corporate, a fine not exceeding 9000 penalty units.



Note



However, the offence may be heard and determined summarily (see
section 28 of the Criminal Procedure Act 2009).




I'm not sure if this is the offence the men were charged with. But it seems this offence would have at least as good a chance of being proven as stalking would, and highly unlikely that a court would want to go beyond the 5 year maximum gaol sentence or $200,000 fine.



The Crimes Amendment (Bullying) Bill 2011 will take effect on the day following its Assent.



The Family Violence Protection Amendment (Safety Notices) Bill 2011 also needs a mention. This will make minor changes to the FVSN system. It has a forced commencement date of 1st November 2011, unless proclaimed earlier.

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