The Justice Committee has examined the Crimes Legislation (Stalking and Harassment) Amendment Bill and recommends that it be passed. We recommend all amendments unanimously.

Stalking behaviour can be hard to recognise, can escalate quickly, and can pose a threat of serious harm to victims. At present, stalking and harassing behaviours are addressed by legislation across the civil and criminal jurisdictions. They include the Harassment Act 1997, Family Violence Act 2018, Crimes Act 1961, Harmful Digital Communications Act 2015, and the Summary Offences Act 1981. None of these Acts explicitly refer to stalking, which the law has largely considered to be the same as, or a form of, harassment. The most comparable offence, criminal harassment (section 8 of the Harassment Act) is therefore used for criminal responses to stalking.

The purpose of the bill is to address stalking to ensure that the harm experienced by victims is recognised and that offenders are prosecuted effectively. It would do so by amending several Acts to introduce a new stalking and harassment offence and make other supporting amendments. The amendments aim to enable more effective criminal justice responses to stalking and harassment.

The proposed amendments include:

• creating a stalking and harassment offence in the Crimes Act

• removing references to the existing criminal harassment offence in the Harassment Act

• under the Arms Act 1983, disqualifying a person convicted of stalking in the previous 10 years from holding a firearms licence

• introducing new aggravating factors under the Sentencing Act 2002 related to stalking and breaching a restraining order

• allowing restraining orders under the Harassment Act and orders under the Harmful Digital Communications Act to be made when a person is convicted of the new offence

• expanding the definition of psychological abuse in the Family Violence Act to include stalking

• preventing self-represented defendants charged with the new offence of stalking and harassment from being able to personally cross-examine alleged victims under the Evidence Act 2006.

As part of our consideration of the bill, we have examined its consistency with principles of legislative quality. We have no issues regarding the legislation’s design to bring to the attention of the House.

This commentary covers the main amendments we recommend to the bill as introduced. We do not discuss minor or technical amendments.

Clause 4 would insert new sections 216O to 216Q into Part 9A of the Crimes Act, which deals with crimes against personal privacy. Proposed new section 216O of the bill as introduced defines the new stalking and harassment offence. A person (person A) would stalk and harass another person (person B) if person A engaged in a pattern of behaviour directed at person B that included doing at least three “specified acts” to person B in a 12-month period. Person A would need to know that their behaviour was likely to cause fear or distress to person B. Proposed new section 216P lists the behaviours that may constitute a “specified act”.

We note that some of the specified acts may not ordinarily be illegal—for example, contacting or communicating with person B. We therefore considered whether the pattern of behaviour should explicitly involve conduct that could be charged as an offence. However, we agreed that specified acts (which may or may not be offences themselves) would be most appropriate given the nature of stalking.

We also discussed whether the definition in the bill as introduced of three specified acts in 12 months was an appropriate threshold. We note that stalking is often premeditated and could involve perpetrators tailoring their behaviour so that it falls outside specified time periods. We also recognise that the behaviour may occur around anniversaries, which could cause anxiety and stress over a prolonged period. We explored several options for the required number of specified acts and time frames. We consider that two specified acts in 24 months would be appropriate. We recommend amending section 216O to this effect.

We suggest one addition to the list of specified acts. Collating and publishing private and identifying information about an individual, including posting information on their behalf, is known as “doxing”. We recognise that this behaviour invades a victim’s privacy and can cause significant harm. We consider that doxing is not clearly captured in the list of specified acts in the bill as introduced. We therefore recommend inserting into the list of specified acts in section 216P(1)(a) “publishing any statement or other material relating or purporting to relate to a person, or purporting to originate from a person”.

We note that the offence requires person A to know that their behaviour was likely to cause fear or distress to person B. We were concerned that perpetrators may not be behaving rationally or may refuse to acknowledge that their behaviour could cause fear or distress. We discussed whether it would be clearer to apply a “rational person” test or to use similar wording as in overseas jurisdictions like “ought to have known”.

We were advised that the drafting of the bill as introduced does not require proof that person A intended to cause fear or distress or know it will definitely occur as a result of their behaviour. Instead, they would need to know it was a likely result of their behaviour. We were also advised that, like the range of stalking offences overseas, the offence has different elements that affect its scope and proportionality. For example, the bill introduces a Police notice system that creates a presumption of knowledge. The presumption means that, if a notice has been given and the behaviour continues, it can be used as evidence that the person meets the knowledge element of the offence. We were advised that evidence that person A meets the knowledge element of the offence may also be met through other means. One example would be the victim or their family or friends telling the person they are causing them fear or distress. Another example is that the behaviour is so obviously likely to cause fear or distress that any person would know that their behaviour was likely to have that outcome.

Part 7A of the Arms Act sets out the firearms prohibition orders (FPO) regime. FPOs aim to reduce the risk of harm to the public by keeping firearms from high-risk people. A court may issue an FPO when sentencing an offender convicted of a specified serious offence. An FPO prohibits an offender from accessing, possessing, or using any firearm or related item, and from associating with people who have firearms.

We note that evidence highlights serious risks to victim safety where a perpetrator of family violence has access to firearms. We consider that adding the stalking and harassment offence to the FPO regime could better protect victims and enable effective prosecution when offenders access firearms. We recommend inserting clause 6A to amend section 39A of the Arms Act accordingly.

Clause 24 would amend section 9 of the Sentencing Act, which relates to aggravating and mitigating factors. The bill would add two new aggravating factors to sentencing. Proposed new section 9(1)(ga) would require “that the offender’s behaviour towards the victim, other than the offender’s behaviour resulting in the offence, involved persistent or repetitive behaviour over a prolonged duration that caused, or was likely to cause, fear and distress to the victim”.

We were puzzled by the clause “other than the offender’s behaviour resulting in the offence”, as we consider it unusual that the behaviour that led to the offence would be disregarded in sentencing. We explored the justification for this wording. We received advice that the intention is to ensure that behaviour is not counted twice—as an aggravating factor in both the offence and sentencing. However, we were told that the courts are adept at avoiding such double-counting, so specifically including this requirement is unnecessary. Consequently, we recommend deleting the phrase “other than the offender’s behaviour resulting in the offence” in clause 24.

We understand that this provision is intended to recognise cases where stalking and harassment-type behaviours are associated with offending and the offender has not been convicted of the new offence. Examples of the types of offences they might have been convicted of include assault, trespass, or wilful damage. The aggravating factor is intended to recognise the cumulative harm the victim may have experienced from the stalking and harassment leading up to the offending. We think that the offence should be more clearly linked to the associated stalking and harassment-type behaviours. We recommend inserting section 9(1)(cc) to require that the offence be connected to or following persistent or repetitive behaviour by the offender.

Clause 25 would insert new sections 123I and 123J into the Sentencing Act. Proposed new section 123I deals with restraining orders under the Harassment Act, while proposed new section 123J relates to orders under the Harmful Digital Communications Act. The bill provides that the court may make an order under the applicable Act to protect the victim if the offender has been convicted of the new stalking and harassment offence. The court would need to be satisfied that the grounds were met in section 16(1) of the Harassment Act or section 19(5) of the Harmful Digital Communications Act to make the relevant order. For both provisions, the court could make an order in addition to imposing a sentence or making any other order.

We note that the bill’s current drafting would mean a court would be unable to make either type of order if the defendant were discharged without conviction. In this situation, the person would have been found to have committed the crime. However, their personal circumstances and the sentencing principles would result in the consequences of the conviction being deemed too severe for the crime. We recognise that the person might still pose an ongoing risk to their victim. Consequently, we consider that these victims should be able to access civil protections without needing to start separate civil proceedings. We recommend inserting clause 24A, which would amend section 106 of the Sentencing Act, and amending clause 25 to enable a court to make a restraining order under the Harassment Act or orders under the Harmful Digital Communications Act when a person is discharged without conviction.

We understand that collecting intimate visual recordings may be a part of a pattern of behaviour committed by perpetrators. Sections 216L and 216M of the Crimes Act provide that a court may order the disposal or forfeiture of intimate visual recordings or things used to commit the offence under sections 216H to 216J.¹ We agree that it would be beneficial for the bill to contain a similar provision regarding intimate visual recordings obtained by an offender convicted of the new stalking and harassment offence. This would support the intent of the bill to provide more effective criminal responses to stalking and harassment. Further, without such an order, the perpetrator would have access to these recordings when their sentence was completed. We therefore recommend amending the bill to enable the court to order that these types of intimate visual recordings be destroyed.

We note that the bill would capture any type of recording, such as photographs, video, or audio recordings, and that the use of tools like AI or “deepfakes” may be captured by the list of specified acts. For example, deepfakes could be captured by proposed new section 216P(1)(a)(v), relating to damaging or undermining person B’s reputation, opportunities, or relationships, or by our recommended new specified act of doxing in proposed section 216P(1)(a)(va).

While we have recommended enabling the disposal or forfeiture of intimate visual recordings, we note that the bill does not enable the disposal or forfeiture of other types of recordings or deepfakes. We were advised that creating new orders that apply more generally to recordings would require more detailed consideration. Accordingly, we note that the disposal or forfeiture of other types of recordings, including deepfakes, appears to be an outstanding issue that should be considered outside this bill.

We consider that it is important that aspects of this legislation be formally reviewed within three years. We strongly recommend that the Ministry of Justice reports to the Justice Committee on the results of that review and any recommendations.

The Labour Party, the Green Party, and Te Pāti Māori welcome the Government’s commitment to addressing stalking and harassment and strengthening legal protections for survivors. We especially acknowledge the contributions of submitters, most with lived experience, whose voices were important in shaping the understanding of the real and lasting harm caused by stalking behaviours. We recognise the select committee’s efforts to strengthen this bill and for engaging with views shared in public submissions. This legislation is an important step toward preventing the serious and cumulative harm caused by stalking behaviour.

However, while we support the overall direction of the proposed changes, further amendments are required to achieve the bill’s original intent and ensure that it is fit for purpose. Labour, the Green Party, and Te Pāti Māori are concerned with the current definition of stalking; specifically, within Part 1, clause 4, section 216O(1)(a) and (1)(b). We also remain concerned that the bill does not go far enough to prevent access to firearms in the window between a stalking charge and the court proceedings.

ACT considers this bill is an important piece of legislation to address the harm caused by stalking and harassment. It is critical that the Police and courts have a statutory framework to protect the victims of these acts who are predominantly women.

As has already been noted in at the commentary, the select committee discussed at length both the number of specified acts required, and what would be an appropriate timeframe, if any, in which the acts must occur.

In the end the position of 2 specified acts in a 24-month period was arrived at. This position helps address the concerns raised by submitters and more closely aligns with the current existing criminal harassment offence.

ACT does note we do need to strike a balance between ensuring a sufficient pattern of behaviour is established to protect victims while not unintentionally creating offenders and burdening the courts. We would encourage the Police to use the written notice provision in section 216O(3) to the fullest extent possible so that potential offenders are made aware of the specified acts which may trigger an offence. ACT also thinks that it is appropriate that the list of potential defences in section 216Q(2) is maintained in the interests of justice.

We look forward to getting this new stalking and harassment regime in place to advance legal protections in New Zealand.