The Crimes Amendment (Bullying) Bill 2011 has
now received Royal Assent and has passed into legislation. The
amendments brought in by this Act are significant. They amend
the Crimes Act 1958 (Vic) (Crimes
Act) to extend the circumstances of stalking to include,
what we euphemistically and often confusingly term,
The Brodie Panlock Case
The amendments to the Crimes Act are generally referred to as
'Brodies' Law, after the bullying case involving Brodie
Panlock, an employee of Café Vamp, who committed suicide
after being subjected to sustained and serious bullying in the
workplace. In February 2010, the owner of Café Vamp, its
manager, Nicholas Smallwood, employees Rhys MacAlpine and Gabriel
Toomey and the company pleaded guilty to and were convicted of
offences under the Occupational Health & Safety Act
2004 (Vic) (OHS Act) and fined a total
of $335,000. Neither the owners of the business nor the manager or
employees were charged by Victoria Police with offences under the
Crimes Act which existed at the time.
At the time there was a public outcry that imprisonment was not a penalty that could have been ordered by the Court for the offences with which the men were charged.
Significantly, under the Crimes Act a person guilty of stalking, now including "bullying", is punishable by a maximum term of 10 years imprisonment.
Stalking and the "Brodie" law changes
In 1994 the Crimes Act was amended to include a new offence of "stalking". Section 21A of the Crimes Act states that a person (the offender) stalks another person (the victim) if the offender "engages in a course of conduct". The Crimes Act includes a list of the types of relevant conduct.
The "Brodie" amendments broaden the type of 'conduct' which can now be considered to be stalking under the Crimes Act to include a person:
- making threats to the victim
- using abusive or offensive words to or in the presence of the victim
- performing abusive or offensive acts in the presence of the victim, and
- directing abusive or offensive acts towards the victim
Stalking now also includes acting in any other way that could
reasonably be expected to cause a victim to engage in
The course of conduct engaged in by the offender may also include acting in any other way that could reasonably be expected—
(i) to cause physical or mental harm to the victim, including self-harm, or
(ii) to arouse apprehension or fear in the victim for his or her own safety
or that of any other person.
To be convicted of stalking, an offender must have engaged in a "course of conduct" intended to:
- cause physical or mental harm to the victim, or
- arouse apprehension or fear in the victim for their own safety or that of another person.
To be a "course of conduct" under the Crimes Act, the conduct must be engaged in more than on one occasion or it must be protracted. The "course of conduct" must be a pattern of conduct evidencing a continuity of purpose on the part of the alleged offender. For the offender to have the requisite intent, it is sufficient that (1) she or he knew, or ought to have understood that engaging in the course of conduct would be likely to cause such harm or arouse such apprehension or fear and that (2) it actually did have that result.
A definition of "mental harm" has also been inserted and includes psychological harm and suicidal thoughts: (s.21A(8)) This means that stalking now includes circumstances where a person intends to cause the victim to engage in self-harm, including suicide.
Under the existing section 21A (6) and (7), the stalking
provisions apply so long as either the victim is located in
Victoria or if the conduct alleged to be stalking, occurred in
Victoria. This ensures that stalking via social media, texts and
telephone across state borders is covered under the Crimes Act
Because these are criminal offences, there are also the important collateral issues of incitement to commit an offence, attempts to commit an offence, being an accessory to an offence and concealing an offence for a benefit.
Parliament's changes also include amendments to
the Stalking Intervention Orders Act 2008 (Vic)
and the Personal Safety Intervention Orders Act
2010 (Vic), which allow victims to apply for intervention
orders to be protected against stalking situations where the above
What this means for Employers
While the Brodie law amendments do not only or specifically
relate to workplaces, as the Brodie case itself so tragically
demonstrated, bullying behaviour can and does occur at work and
therefore the amendments apply to workplace behaviour and to
employers who are responsible for workplace behavioural
Employers have legal obligations under the Occupational Health and Safety Act(Vic) 2004 to provide and maintain for employees a working environment that is safe and without risks to safety and health, so far as is reasonably practicable, including:
- providing and maintaining systems of work
- monitoring the health of employees
- providing information, instruction, training and supervision.
While bullying is not specifically identified or defined in the
OHS Act, it is defined in guidance material published by WorkSafe
as 'repeated unreasonable behaviour directed towards a worker
or a group of workers that creates a risk to health and
safety'. The amendments to the Crimes Act must now inform
interpretations of bullying for the purposes of the OHS Act.
In light of the Brodie laws, employers should take the opportunity to:
- review their bullying and harassment policies, instructions and procedures
- provide refresher training to staff on bullying and appropriate workplace behaviour and
- ensure that there are appropriate procedures in place to deal with bullying complaints.
You would have already received the invitation to the free breakfast seminar we are running in our Melbourne office on the amendments to the Crimes Act. The seminar will be held on 6 July, be sure to respond quickly to reserve your place.
In the meantime should you have any questions or require further information please contact a member of our team.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.