It is a crime in Queensland to talk to a person twice if that causes a reasonable hindrance; for example, if they take a different bus to work to avoid having a third uncomfortable conversation. It makes no difference that the talker did not intend to cause the discomfort or hindrance. It is still a crime (s.359B CC). They call it stalking.

The criminal law should not be a mystery. The law should tell us where the line is drawn between what is legal and what is criminal. You should be able to tell whether you are breaking the law. Therefore, a crime must not depend upon whether or not someone’s feelings were hurt.

A law with similar flaws was considered last week in the USA. It was found to violate the US Constitution. The court held “The defendant is culpable for his words or conduct that led to the victim’s reasonable perception even if that perception is mistaken…A statute that criminalizes conduct “in terms so vague that [persons] of common intelligence must necessarily guess at its meaning . . . violates the first essential of due process of law”…The statute criminalizes defendant’s failure to apprehend the reaction that his words would have on another.”

Queensland has no such safeguard in its Constitution, and so s.359B and the definition of stalking will continue to violate the first essential of due process.

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