Friday, 18 December 2020
Harassment, Harmful Communications and Related Offences Bill 2017: Committee and Remaining Stages
I welcome any amendments. Irrespective of whether they are accepted, they play an important part in testing the legislation and making it more robust. Legislation should always be a challenged. Once a Bill has been tested by way of amendments and passes through this House, we can be more confident of it. Any comment about broadness within the Bill was more directed at one or two Senators who were making a few criticisms of the Bill.
Amendments Nos. 5 to 8, inclusive, relate to section 2. Amendment No. 5 seeks to delete the word "and" substitute the word "or" in subsection (1). This small change would have very serious implications in the context of the offence by providing that an intimate image could be distributed or published either without consent or with intent to cause harm, which would have the effect of making this offence a strict liability offence as it would remove the requirement to prove intention altogether. As Senators will be aware, intention is a fundamental element of the law regarding criminal offences. Offences without a requirement of some form of intention, more commonly referred to as strict liability offences, are the exception rather than the rule in legislation. Strict liability offences are generally dealt with by way of a summary prosecution and do not attract very high penalties to reflect the fact that they can be committed with no intention or even knowledge on the part of the defendant and this offence carries a maximum penalty of an unlimited fine and—or seven years imprisonment. Therefore, unfortunately, I cannot accept the amendment that would make this a strict liability offence. I would have strong concerns that such an offence would be open to constitutional challenge.
Amendment No. 7 also proposes to delete the word "and" and substitute the word "or" in subsection (2). I appreciate the intention behind the amendment. A similar issue arises with this amendment, as with amendment No. 6. The purpose of paragraph (a) is to include a requirement that the acts complained off seriously interfere with the peace and privacy of the victim or cause them harm, alarm or distress. Paragraph (b) includes a requirement that a reasonable person would realise the harmful effects of those acts. A reasonable person test is common in legislation where intention to cause harm is an element of the offence to avoid a situation where behaviour that would not reasonably cause harm is sufficient to meet the offence.
Amendments Nos. 6 and 8 seek to remove the requirement that the behaviour referred to in the offence seriously interfered with the peace and privacy of the victim of the offence. I appreciate Senators may be concerned that the requirement to prove a serious interference could be an onerous burden in a prosecution. This word is included in the offence for a good reason. If it was sufficient to prove that the behaviour simply interfered with the peace and privacy of a person I would have a very real concern that the bar is set too low in terms of the penalties for the offence. This formula is used in the offence of harassment and I am not aware of any onerous requirements on a prosecution on proving the impact of the offence on the victim. I am satisfied this section should not amended in this way.