The terms of reference
1.1 The Attorney-General, the Hon. Jaclyn Symes MP, provided the Commission with the terms of reference for the Stalking inquiry on 17 February 2021. See page v for the terms of reference.
1.2 The Commission was asked to provide an interim report and a final report. The focus of the interim report (this report) is on improving the identification of and responses to stalking by Victoria Police. Our recommendations are aimed at making a major difference both to victim survivors and those who engage in stalking. We focus on and consider how early intervention can effectively protect those experiencing stalking.
1.3 We highlight issues that have not traditionally been a priority of stalking reforms—such as a victim-centred process for taking disclosures seriously, supporting people who have experienced stalking, and investigating where appropriate (recognising that not all victim survivors desire a formal investigation).
1.4 The focus of this report is responding to stalking after it happens. However, we understand the importance of preventing stalking and that a strong response to stalking also requires more than just a strong police response. The problem of stalking begins with the offending conduct. Therefore, the focus of the final report and the basis for change is to address the conduct of those who engage in stalking behaviour. This interim report focuses on one way to address stalking conduct, which is to improve police responses and to provide earlier intervention in stalking situations. Improved understanding of what constitutes stalking underpins this.
1.5 The recommendations in this interim report, and those to come in the final report, seek to achieve the following improvements to the way the police and broader criminal justice system respond to stalking:
• making it easier than it is now to disclose stalking at the earliest opportunity—especially for people who face greater barriers to reporting than others
• improving how police understand, identify, and respond to reports of stalking
• ensuring that every presentation to police involving alleged stalking is consistently and centrally recorded, which will reduce the potential for fragmentation of evidence
• prioritising a focus on early intervention that is fair for people engaging in stalking, and that addresses the conduct to protect the victim and reduce recurrence of the behaviour
• having structures to ensure that the justice system responds effectively to stalking and continues to improve its response.
1.6 The final report will review and report on Victoria’s legal responses to stalking, including:
• The law on stalking, harassment or similar conduct including:
– Operation of the Personal Safety Intervention Orders Act 2010 (Vic), including consideration of how the legislative framework and operation differs from the scheme for Family Violence Safety Notices and Family Violence Intervention Orders under the Family Violence Protection Act 2008 (Vic).
– How breaches of personal safety intervention orders are treated under the relevant legislation and responded to within the context of those statutory frameworks
– The existing criminal offences applying to stalking, harassment and similar conduct, including consideration of the scope, elements and adequacy of the offence of stalking in the Crimes Act 1958 and the evidence required to establish the offence
– How the law could be strengthened to promote and enhance victim safety and well being
– The interaction between existing laws where the conduct occurs online
– Ancillary laws of evidence and procedure
• Barriers to reporting for victims of stalking
• Sentencing practices and available sentencing options
• In conducting this review, the Commission will consider what might be learnt from:
– The findings of the Royal Commission into Family Violence (2016) and the actions taken by the Victorian Government and justice system in response to the Royal Commission’s recommendations
– Reports of the Royal Commission into Victoria’s Mental Health System (2019).
1.7 The Hon. Anthony North QC was the Commission’s Chair during this inquiry.
1.8 The Chair established a Division to guide and make decisions about the inquiry. All our Commissioners were Division members. Their names are listed on the inside front cover.
What we published
1.9 On 20 June 2021 we published a consultation paper to seek views on how the justice system was working and what could be improved. We invited submissions by 5 August 2021.
1.10 Alongside the consultation paper, we released a survey to assist those who have experienced stalking to engage with the reference by sharing their views anonymously.
Submissions we received
1.11 We received 115 written submissions (see Appendix A). We published the submissions on our website, apart from those that were confidential.
Consultations we held
1.12 We held two stages of consultations. First, we held preliminary meetings with people who worked in the justice system, such as members of Victoria Police and the courts, to help us understand the main issues and start identifying areas for reform. We also spoke to academics and forensic psychologists who had studied this area. Along with our own research, these meetings helped us develop our consultation paper.
1.13 Second, after the release of the consultation paper, we held formal consultations with a wide range of people, including victim survivors, community and victim advocacy and support organisations, disability services, academics, Victoria Police, the legal profession, and the courts. We met with people who could tell us about innovative responses to stalking in other jurisdictions.
1.14 We held 31 consultations (see Appendix B).
1.15 We organised roundtables on the topic of identifying and managing risk of serious harm and cyberstalking. We also held small group meetings with multicultural organisations, and organisations working alongside young people and people with disability.
1.16 Due to coronavirus (COVID-19) restrictions, most of our consultations were held online.
1.17 We had planned to meet with people who had engaged in stalking behaviour, but the process needed to run these meetings ethically could not be managed in our interim report’s timeframe. We intend to discuss these issues in the final report.
1.18 We received valuable informal advice and help from many people who work in the area of stalking research, forensic mental health, and the justice system more broadly. We are grateful to these people for contributing to our inquiry.
1.19 We extend our special thanks to all the people who have experienced stalking who contributed to our inquiry. We appreciate the thought, care and courage that went into what they told us. Their ideas and voices are in this report. We expect they will shape changes that will benefit others.
Our broader public engagement on Engage Victoria
1.20 In addition to submissions and consultations, people who had experienced stalking could tell us their views through an online form, available on the Engage Victoria website from 24 June 2021 to 18 August 2021.
1.21 The form could be completed anonymously. It consisted of 22 questions, including questions about experiences of reporting stalking to police, and ideas about how to improve early intervention. We received 254 contributions from 228 contributors.
1.22 Most respondents identified as female (202). We received 22 responses from people identifying as LGBTQIA+, 31 people identifying as disabled, 40 people living in a rural or regional community, 29 young people (18–25 years), seven older people (65 years and older) and four people identifying as working in the sex industry. We received responses from 12 people identifying as migrants or refugees, and six as Aboriginal and Torres Strait Islander people.
1.23 The valuable insights we gained from those who completed the survey inform this report and its recommendations. We are grateful to everyone who responded.
How we made sure our process was ethical
1.24 We developed an ethical governance framework for working with people who have experienced stalking. This included:
• prioritising engagement with people who have experienced stalking
• prioritising engagement with people who face greater barriers to accessing justice because of factors such as race, gender, socio-economic position, visa status and/or disability
• training and support for the research and policy team on responding to stalking victim/survivors who may have a high level of unresolved trauma
• including content warnings in our publications.
The scope of this inquiry
1.25 Our focus has been on issues that have not been recently reviewed. For example, the Royal Commission into Family Violence (2016) considered the issue of stalking in the context of family violence and post-separation. We have regard to this work but focus explicitly on non-family violence stalking.
1.26 While we make some recommendations about Personal Safety Intervention Orders (PSIOs) in this report, the final report will be the document in which we address the underpinning statutory framework for PSIOs.
1.27 This report focuses on stalking. We distinguish stalking from other conduct, such as harassment or interpersonal disputes, that can form the basis of a PSIO.
1.28 In the paragraphs below, we explain some key terms that we use in this report.
1.29 We understand that the best terms to use can change and people often disagree about the right terms to use. For example, we used victim survivor (a term recognising their resilience as well as their victimisation) throughout our report to refer to those who have experienced stalking. However, we recognise that experiencing violence does not and should not define a person’s life and that some people may prefer other terms to describe their experience.
1.30 People who have committed or engaged in stalking. We refer to ‘a person who has committed’ or ‘been convicted of’ or ‘engaged in stalking’ rather than ‘stalkers’. This recognises that stalking is a problem of someone’s behaviour, rather than of who they are. This is not meant to minimise the impacts of stalking, which is a serious crime in our community.
1.31 We use a gendered lens in our report. While anyone can experience stalking regardless of gender, it is a gendered crime, disproportionately perpetrated by cis-gender men against women, other men, and people on the gender spectrum. Such gendered violence is enabled by the unequal structures of society.
Our approach to reform for this interim report
1.32 In developing our recommendations, we were guided by our terms of reference, which define the scope of this inquiry. We have also developed key considerations for our reforms based on what we know about stalking and the justice system, past reforms, and what the evidence suggests works in responding to such violence.
1.33 In making our recommendations for reform, these were the guiding considerations:
• Reporting stalking should be made straightforward for victim survivors.
• The police response to stalking should identify and respond promptly and effectively to stalking, taking into account the diverse needs of victim survivors and those who engage in stalking.
• The police should focus on early intervention where possible.
Recognising the diversity of experiences
1.34 We recognise that our community is diverse and so are people’s experiences of stalking and seeking justice. Each person who has experienced stalking will have different personal and structural factors that impact their experience.
1.35 We also recognise that Aboriginal and Torres Strait Islander people are more likely to experience victimisation than non-Indigenous people and are overrepresented in custody. Aboriginal and Torres Strait Islander people are seven times more likely to be charged with a criminal offence and appear before the courts than non-Indigenous people.
1.36 Further, Aboriginal and Torres Strait Islander young people are more likely to be arrested than non-Indigenous young people, and less likely to be cautioned or to receive a summons than non-Indigenous young people.
1.37 Police must ensure that discretion is exercised appropriately where it comes to arrest, particularly in regard to Aboriginal and Torres Strait Islander peoples. Police must ensure that arrest remains an action of genuine ‘last resort’.
1.38 The best way of ensuring this is through appropriate and effective early intervention to reports of stalking. This means using a range of alternatives such as warnings or cautions. These alternatives are outlined in legislation and guidance manuals for police.
1.39 It is more difficult for some people and groups to access the justice system than others. They might find it harder than others to report their experience. They might find it harder than others to be heard and believed, and to get a just outcome. This might be because they did not realise what happened to them was a crime, or because the justice system has treated them unfairly in the past. It could be because our justice system is still based on the experiences of some groups, but not others.
1.40 There is very little research on how victim survivors of stalking understand justice, including what they expect from police and the justice system, and where they believe the policing response to stalking has succeeded or failed. It can be difficult to prove stalking to the criminal law standard of beyond reasonable doubt. Often this difficulty is made worse by police not taking reports seriously from the first disclosure or presentation. In this inquiry we heard from victim survivors about their experiences of reporting stalking to police. We refer to those experiences in our report.
1.41 This is an opportunity to deliver changes that will fundamentally improve responses to stalking. Our report proposes systemic improvements to the way police deal with the crime of stalking, specifically:
• interviewing and communicating with victim survivors
• gathering, recording, and managing evidence
• the investigation of cases.
1.42 We have prioritised our recommendations in terms of early intervention. People who report stalking to police should receive a response that results in early intervention and stops the stalking situation. Informing people about these improvements might also encourage reporting. Therefore, priority should be given to those reforms that will improve what happens when stalking is first reported, and lead to effective early intervention by Victoria Police and the criminal justice system.
Our recommendations for change
1.43 At the heart of this reference is the death of Celeste Manno. The tragic death of a young Victorian reminds us of the importance of this law reform work.
1.44 During the course of this reference it became clear that stalking is an invisible crime, frequently not recognised by police and even by those who experience it. It is often minimised or trivialised, and victim survivors are often expected to manage the situation on their own.
1.45 The Commission has been requested by the Attorney-General to produce two reports as part of this reference: an interim report (this report) and a final report, which is due to be provided to the Attorney-General by 30 June 2022. This interim report contains recommendations on the topic of strengthening police responses to stalking. We heard from victim survivors, and through submissions received, that stalking is often not identified by Victoria Police at the point of first disclosure of a distressing experience by victim survivors. This undermines the police response as an early intervention.
1.46 For that reason, the interim report focuses on improving practices within Victoria Police. We recommend changes to the entire process of a report to police of stalking, including:
• implementing specialised interviewing and gathering of evidence
• improving communications with victim survivors of stalking
• strengthening record keeping
• implementing guidance for what action should be taken.
1.47 Providing for early intervention to prevent persistent stalking, escalation, and serious harm and/or outcomes, would be a tangible acknowledgement by the government and Victoria Police of the community’s concern.
The process from here
1.48 This interim report will be delivered to the Attorney-General by 31 December 2021. The final report is due by 30 June 2022.
Victorian Law Reform Commission, Stalking (Consultation Paper, June 2021) 4.
Jacqui True, ‘The Political Economy of Violence against Women: A Feminist International Relations Perspective’ (2010) 32(1) Australian Feminist Law Journal 39.
Australian Law Reform Commission, Pathways to Justice—An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Report No 133, December 2017) <https://www.alrc.gov.au/publication/pathways-to-justice-inquiry-into-the-incarceration-rate-of-aboriginal-and-torres-strait-islander-peoples-alrc-report-133/executive-summary-15/disproportionate-incarceration-rate/>.