Friday, 18 December 2020
Harassment, Harmful Communications and Related Offences Bill 2017: Committee and Remaining Stages
Amendments Nos. 9 and 12 relate to the issue of the retention of images. I have already outlined, in discussions on earlier amendments, the reasons that I am opposing amendments of this nature. I point out that the inclusion of retention in section 3 would arguably be more dangerous than in section 2, as there is no requirement in section 3 to prove any intention in respect of the offence. I am not satisfied that this would be appropriate and therefore cannot support these amendments.
On amendment No. 10, I do not wish to remove the requirement from this offence that it must be proven that the behaviour referred to seriously interferes with the peace and privacy of the other person or caused the person harm, alarm and distress. The Law Reform Commission recommended that elements of this offence should include harm. I am satisfied that this is appropriate in all the circumstances.
Amendment No. 11 seeks to replace the requirements regarding the impact on the victim with a reasonable person test. I reiterate to Senators that this offence is one of strict liability. No intention is required. As such, it needs to be clear in scope. For this reason, I will oppose the amendment. Intention is irrelevant to this section.
Amendment No. 13 attempts to insert a provision to include a rebuttable presumption, that the person who commits an offence under section 3 intended the natural and probable consequences of his or her actions. This is unnecessary, as there is no requirement to prove any intention on the part of the defendant under this section. It simply does not fit with the offence. I appreciate Senator Ruane's comments on another section, but within criminal law, a person is presumed to have intended the natural, probable consequences of his or her actions. That is the test in criminal law because it is impossible to prove what was going on in a person's mind and his or her actual intention. The natural, probable consequence is well-established in criminal law. I would be concerned about including it when it is not included in other criminal offences and that it may be used to try to distinguish this offence from other criminal offences, which is not intended.