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, with the intention 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.

Incidents of cyberstalking are recognised under the definition of stalking used in South Australian legislation (i.e. the inclusion of offences relating specifically to the use of internet and electronic technologies to communicate in an intimidating manner or to publish offensive material). However the prosecution of such offences, as with the traditional stalking offences, is rare.

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.

Cyber bullying and trolling may also be illegal under federal criminal law. The Commonwealth Criminal Code criminalises the use of the internet to menace, harass or cause offence [Criminal Code Act 1995 (Cth) Schedule 1 s 474.17]. See also Distribution of invasive images (image-based abuse).

Despite the provisions of the legislation, the prosecution of stalking-type offences is very difficult. Not only must there be at least 2 proven instances of the behaviour but the mental element of intention to cause harm or create fear must be established by the prosecution (in each instance being relied upon). Police policy is to caution or warn an offender in the first instance and this, in a majority of cases, is an effective way of dealing with the problem.

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)]. As with any criminal offence, a charge of stalking/cyber stalking must be proved beyond a reasonable doubt. In contrast, an application for an intervention order requires only that it can be established that a danger exists on the balance of probabilities. In addition, given terms of imprisonment for stalking are rare, an intervention order potentially offers a longer period of protection than a conviction could (see Intervention orders).

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 commencement of the Online Safety Act 2021 (Cth) has expanded the powers of the eSafety Commissioner.

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