Stalking

It is an offence to unlawfully stalk another person. Under s 19AA of the Criminal Law Consolidation Act 1935 (SA), a person stalks another if they do any of the following on at least 2 separate occasions, intending to cause serious physical or mental harm or serious apprehension or fear:

The offence may be aggravated if:

Maximum penalty: imprisonment for 3 years imprisonment (basic offence), imprisonment for 5 years (aggravated offence).

Alternative charge of offensive behaviour

Where a person is charged with stalking they are taken to have been charged in the alternative with offensive behaviour. This means that if the court is not satisfied that the offence of stalking has been made out but there is sufficient evidence to establish an offence of offensive behaviour, the court may convict the person of offensive behaviour [Criminal Law Consolidation Act 1935 (SA) s 19AA(3) - see also Summary Offences Act 1953 (SA) s 7].

Cyber stalking and cyber bullying

Cyber stalking is the use of information technologies to harass and intimidate an individual. It is similar to traditional forms of stalking but the use of sophisticated technology can make intrusions into a victim’s life far beyond those possible by physical harassment. Some incidents of cyber stalking may be captured by South Australian offences such as the offence of stalking discussed above.

Cyber bullying may constitute an assault under s 20 of the Criminal Law Consolidation Act 1935 (SA) if the bully threatens to physically hurt the victim, provided there is a real possibility that the bully will carry out the threat or they are in a position to carry out the threat and intend to do so. See also Assault.

Cyber bullying may also be illegal under federal criminal law. Under the Commonwealth Criminal Code, contained within Schedule 1 to the Criminal Code Act 1995 (Cth), it is an offence to use a carriage service (such as the internet) to menace, harass or cause offence [s 474.17]. This carries a maximum penalty of imprisonment for 5 years.

It is also a federal offence to use a carriage service (such as the internet) to publish or release someone's personal data in a manner that is menacing or harassing [s 474.17C]. This offence is commonly known as doxxing. Personal data includes a person's name, photograph, telephone number, email address, residential address and work address. Doxxing carries a maximum penalty of imprisonment for 6 years. It is also an offence to release or publish the personal data of one or more members of a particular group in a manner that is menacing or harassing [s 474.17D]. This is intended to cover behaviour that targets individuals who belong to a group that an offender believes are distinguished by their race, religion, sex, sexual orientation, gender identity, disability, nationality or ethnic origin. This carries a maximum penalty of imprisonment for 7 years.

Cyber stalking or cyber bullying behaviours may constitute image-based abuse. See Distribution of invasive images (image-based abuse).

Prosecuting stalking-type offences has traditionally been difficult due to the requirement to establish multiple instances or a pattern of behaviour and to prove the offender's intent to cause harm or create fear. The expansion of legislation to allow for intervention orders on the basis of cyber stalking provides an alternative to prosecution [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 8(4)]. While criminal offences must be proved beyond reasonable doubt, an application for an intervention order requires only that it can be established that a danger exists on the balance of probabilities. Further, an intervention order is ongoing and remain in force until a court determines that circumstances have changed justifying its removal. This may offer a longer period of protection than a criminal conviction and sentence of imprisonment. For more information, read the Law Handbook chapter on Intervention orders or read our Applying for an intervention order publication.

Many websites, such as Facebook, will remove offensive pages and content and can also ban cyber bullies from using the site. Contact the website administrator or company to request the removal of material. Alternatively, a report may be made to the Office of the eSafety Commissioner – see Office of the eSafety Commissioner. The Online Safety Act 2021 (Cth) has expanded the powers of the eSafety Commissioner to deal with online abuse.

Cyber bullying and trolling may also be defamatory (damaging to a person’s reputation) – see Defamation.