Friday, 18 December 2020
Harassment, Harmful Communications and Related Offences Bill 2017: Committee and Remaining Stages
I thank the Senator for bringing forward these amendments. Amendments Nos. 23 to 25, inclusive, all refer to the amendment to section 10 of the Non-Fatal Offences Against the Person Act 1997. My officials have considered this issue in detail and had extensive consultations with stakeholders in the criminal justice system. There was broad support for the existing harassment offence as one that works and I would caution against changing it too much.
Amendment No. 23 appears to be technically flawed insofar as it is adding text to the phrase that is to be deleted. That being said, I think I understand what the Senators are aiming to do. I would disagree with removing the persistence element of the harassment offence. Taking the persistence element out of the harassment offence would possibly set the bar too low in terms of a conviction and it would be a significantly lesser offence.
Also, I note the Law Reform Commission had supported the retention of the concept of persistence because the conduct criminalised would otherwise be lawful. It only becomes harassment where there is persistence. I would also note that we are introducing three separate offences to deal with one-off harmful behaviour in this Bill.
Amendment No. 24 proposes to change the existing offence where it requires seriously interfering with a person's peace or privacy and to replace it with merely interfering with a person's peace or privacy. This would also represent a lessening of the offence of harassment. Similar to amendment No. 23, it may lower the bar in terms of securing a conviction but it also makes it a lesser offence. In accordance with the harm principle, only the most serious behaviours should be the subject of criminal law. For that reason, I cannot support amendment No. 24.
The section 10 harassment offence is regarded by many stakeholders in the criminal justice system as an effective offence that works. The 2016 Law Reform Commission, LRC, report listed many examples of cases that resulted in convictions under section 10. Rather than dilute it, the Government is proposing to bolster it with an increased maximum sentence of ten years and by extending it to include communications about another person.
Amendment No. 25 is also technically flawed insofar as it is proposing to insert a new subsection (5) into section 10 of the Non-Fatal Offences Against the Person Act 1997. Section 10 already has a subsection (5). Leaving that aside, I am also not entirely convinced that these two elements represent an aggravating factor for the purpose of sentencing. Looking at the first element on its own, making use of personal information about the other person that would ordinarily be known only to the other person or members of the family, or friends, of the other person, it would strike me that this could be a regular feature in many harassment cases. Accordingly, I am not convinced that this should be an aggravating factor for sentencing purposes. Senators may be aware that there is already an aggravating factor that is relevant to the existing harassment offence where the perpetrator is the spouse or civil partner of the victim or is or was in an intimate relationship with the other person. This was provided for in section 40 of the Domestic Violence Act 2018 and it is difficult to see how amendment No. 25 would improve on the current aggravating factor. Consequently, I cannot support the amendment.