Thursday, 23 June 2022

Crimes Legislation Amendment Bill 2022

Statement of compatibility

Ms HUTCHINS (Sydenham—Minister for Crime Prevention, Minister for Corrections, Minister for Youth Justice, Minister for Victim Support) (10:15): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Crimes Legislation Amendment Bill 2022.

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Crimes Legislation Amendment Bill 2022 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill will create an indictable offence in the Crimes Act 1958 targeting grossly offensive public behaviour with a maximum penalty of five years’ imprisonment. The new offence in new section 195K will—

• apply to conduct that occurs in a public place or that is witnessed by a person in a public place;

• require that the accused knows or a reasonable person would know that their conduct is grossly offensive to make out the offence;

• provide defences for good faith and reasonable conduct that is in the public interest, including political, artistic or educational work;

• impose a requirement that the Director of Public Prosecutions (DPP) must agree that the offence can be charged before a prosecution can be commenced.

The Bill will also amend the Summary Offences Amendment (Decriminalisation of Public Drunkenness) Act 2021 to defer commencement of that Act to November 2023.

The Summary Offences Amendment (Decriminalisation of Public Drunkenness) Act 2021 passed Parliament in February 2021, repealing public drunkenness offences in the Summary Offences Act 1966 and associated arrest and infringement provisions. The Act is set to come into effect on 7 November 2022.

The Bill will defer commencement of the Summary Offences Amendment (Decriminalisation of Public Drunkenness) Act 2021 by one year, to November 2023 to allow for the establishment, trial and evaluation of a replacement health model, to facilitate a successful and safe transition to a health-based response to public intoxication.

I wish to acknowledge the legacy of the public drunkenness offences and the disproportionate impact they have had on Aboriginal and Torres Strait Islander people as well as members of other culturally and linguistically diverse communities. However, to the extent that the Bill extends the operation of existing public drunkenness offence provisions in the Summary Offences Act 1966, it is compatible with the Charter.

Human Rights Issues

Human rights protected by the Charter that are relevant to the Bill

The human rights protected by the Charter that are relevant to the Bill are:

a. right to freedom of expression (section 15);

b. right to privacy and reputation (section 13);

c. right to freedom of thought, conscience, religion and belief (section 14);

d. right to peaceful assembly and freedom of association (section 16);

e. right to take part in public life (section 18);

f. right to culture (section 19); and

g. right to be presumed innocent until proved guilty according to law (section 25).

Under the Charter, rights can be subject to limits that are reasonable and justifiable in a free and democratic society based on human dignity, equality and freedom. Rights may be limited in order to protect other rights.

As discussed below, these limitations are reasonable and justified in accordance with section 7(2) of the Charter.

Right to freedom of expression

Nature of the right

Section 15(2) of the Charter provides the right to freedom of expression includes the freedom ‘to seek, receive and impart information and ideas of all kinds’. The right protects criticism and protest as well as offensive, disturbing or shocking information or ideas, rather than merely favourable or popular expressions (Sunday Times v United Kingdom (No 2) [1992] 14 EHRR 123).

The Bill limits the right by restricting a person’s ability to engage in conduct in public that is grossly offensive.

Importance of the purpose of the limitation

The right contains an internal limitation that allows freedom of expression to be limited where it is reasonably necessary to respect the rights and reputation of others, or for the protection of national security, public order, public health or public morality.

This internal limitation has been held to extend to ‘laws that enable citizens to engage in their personal and business affairs free from unlawful physical interference to their person or property’ (Magee v Delaney (2012) 39 VR 50).

It is important in a diverse and pluralistic society that all members of the public can go about their business in public with the expectation of peaceful enjoyment of public spaces. Grossly abhorrent or offensive conduct can undermine this expectation and disrupt public order by making public spaces feel unsafe and unpredictable, particularly for more vulnerable people.

For example, in the English case of The Queen v Anderson {2008} EWCA Crim 12, which held that the accused had committed the common law offence of outrage public decency, the accused came across a helpless, sick woman dying on the street. He threw water over her and urinated on her body as his friend filmed the event. He also sprayed a can of shaving cream over her and covered her with a pack of flooring, then photographed her. Such conduct is degrading to the individual, but also harms the community by undermining standards of acceptable behaviour in an extreme, distressing and public way.

Given how deeply upsetting and harmful abhorrent public behaviour can be, this limitation is considered lawful and reasonably necessary to protect people’s rights not to be intimidated or distressed, to feel safe, and to maintain public order in public spaces or in circumstances where private conduct is witnessed by persons in public spaces.

Nature and extent of the limitation

The Bill limits the right by restricting a person’s ability to impart certain information and ideas through public conduct that they know, or that a reasonable person would know, is grossly offensive.

The Bill limits the right by restricting a person’s ability to engage in conduct that is grossly offensive in a public place or that is seen or heard by a person in a public place. Conduct that occurs in public places does not need to be witnessed by a person. This reflects the purpose of the offence, which is to prevent and punish any grossly offensive conduct that occurs in public spaces and, in turn, ensures that these spaces are preserved as free from exposure to disruption or distressing behaviour that causes significant harm.

In contrast, conduct that occurs in a private place must be witnessed by a person. This recognises that where private conduct is not witnessed, no social harm occurs and it would be inappropriate and disproportionate for a person to be prosecuted. It also underlines that any encroachment on the rights of people in private places must be limited as much as possible.

At common law, offensiveness is understood to mean the type of behaviour calculated to wound feelings and arouse anger, resentment, disgust or outrage in the mind of a reasonable person (Worcester v Smith [1951] VLR 316). The case law, however, recognises that not all conduct that elicits this response will be considered offensive within the meaning of a criminal offence (Ball v McIntyre (1966) 9 FLR 237). While the concept of offensiveness is well-understood, the law recognises that offensive behaviour occurs on a spectrum. The new offence is intended to capture serious conduct of such a magnitude that it meets the standard of an indictable offence and cannot adequately be punished by the existing offensive behaviour offences.

Whether conduct is offensive enough to reach this threshold will be determined by an objective test. In Pell v Council of the Trustees of the National Gallery of Victoria [1998] 2 VR 391, Justice Harper noted that in determining if a matter is obscene or indecent under section 17 of the Summary Offences Act 1966, ‘the court must have regard to contemporary standards in a multicultural, partly secular and largely tolerant, if not permissive, society’. It is intended that the objective test in section 195K(1) will reflect this concept by ensuring that the offence is able to reflect evolving attitudes and community standards as to what kinds of conduct is acceptable.

In line with the purpose of the Bill, the application of the offence is further confined by a list of defences at section 195K(5), which protect conduct that is engaged in reasonably and in good faith:

• in the performance, exhibition or distribution of an artistic work;

• in the course of any statement or publication made, or discussion or debate held, or any other conduct engaged in, for—

o a genuine political, academic, educational, artistic, religious, cultural or scientific purpose; or

o a purpose that is in the public interest; or

• in making or publishing a fair and accurate report of any event or matter of public interest.

Furthermore, the Bill provides at section 195L that the Director of Public Prosecutions must provide consent for prosecution of the offence, based on whether there are reasonable prospects of conviction and whether the prosecution is in the public interest. This additional safeguard aims to ensure the offence is only prosecuted where appropriate and in the public interest to do so.

In addition, by abolishing and replacing the outdated and poorly understood common law offence of outraging public decency, the Bill provides more guidance, consistency and certainty as to what kind of conduct is unlawful.

Finally, section 195K(4)(a) provides that a person will not commit the offence merely by using profane, indecent or obscene language, highlighting that the offence is targeted at extreme conduct rather than, for example, offensive speech.

Relationship between the limitation and its purpose

The limitation is consistent with the Bill’s purpose to protect the community from the harm and distress caused by grossly offensive behaviour in public, while also ensuring that conduct done reasonably and in good faith for legitimate purposes is adequately protected.

Any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve

The offence is clearly targeted at extreme examples of offensive behaviour. The broad defence provision, as well as the safeguard of requiring DPP consent to prosecute, ensures that the offence restricts only a small and targeted subset of grossly offensive conduct.

To be less restrictive, the offence could be cast less broadly—for example, by specifying the exact kinds of behaviour envisaged to be captured, or by stating what community standards of acceptable conduct are. However, this would mean the offence would not be sufficiently flexible to capture unforeseen types of conduct. Additionally, if the Bill articulated specific community standards, the offence would not be adaptable to changing societal attitudes and values. This would mean that the offence could continue to capture conduct that the broader community has come to find tolerable or less offensive—effectively becoming more restrictive over time.

In these ways, the offence seeks to balance the right of a person to hold and express an opinion with the countervailing duty to respect the rights and reputation of other persons as well as protecting public order and public morality. Any limitation on the right to freedom of expression is therefore reasonable and justified in the circumstances.

Right to privacy and reputation

Nature of the right

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

Section 195K(1)(b)(ii) of the Bill limits the right to privacy by interfering with a person’s ability to engage in certain grossly offensive behaviour in private, if that behaviour is witnessed by a person in a public place.

The importance of the purpose of the limitation

This limitation supports the Bill’s purpose to protect the community from the harm and distress caused by exposure to grossly offensive or abhorrent conduct. Acts may occur in an ostensibly private place but still be clearly seen or heard by a person in or from a public place—for example, a person committing a grossly offensive act in the public lobby of a private building that was then visible to any people walking past on a public thoroughfare. The requirement that a person actually see or hear the conduct is more onerous than what is imposed on acts committed in public places, where no person is required to see or hear the conduct. This recognises that for conduct to be harmful in a private place it must actually be witnessed and it would be inappropriate and disproportionate to prosecute a person otherwise.

Nature and extent of the limitation

It is not the intention of section 195K(1)(b)(ii) of the Bill to arbitrarily restrict the private behaviour of a person in their home and other private spaces.

In situations where a person commits an act in a private place that is witnessed (seen or heard) by a person in a public place, the prosecution will need to prove that the accused knew or was reckless as to whether the act was likely to be witnessed in this way. This limb offers protection against any infringement on an individual’s right to privacy, ensuring that private conduct is only captured by the offence in circumstances where the accused knows, intends or was reckless as to whether their conduct was likely to be witnessed by a person in a public place. This ensures the Bill is not more restrictive than necessary to fulfill its purpose.

Relationship between the limitation and its purpose

These limitations are intended to ensure the intended scope of the offence is clear and it can be prosecuted consistently, while upholding the intent of the Bill to protect the public from the distress and harm caused by exposure to grossly offensive conduct in public spaces.

Any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve

The application of the offence could be narrowed to apply only to conduct that occurs in a public place according to the definition in the Summary Offences Act 1966, which sets out a list of locations and includes a broad ‘catch-all’ that captures any public place. However, this would mean that the public is not protected from grossly offensive conduct that is done intentionally or recklessly in a place where they may be exposed to it.

Alternatively, the offence could require that offensive conduct that occurs in a public place must actually be witnessed. However, this would undermine the purpose of the offence to prevent grossly offensive conduct from occurring in public spaces, where the potential to cause harm or distress is significant. Such a change would only be marginally less restrictive, as it is unlikely that unwitnessed conduct would be reported or otherwise come to the attention of police.

Given the limited scope of this provision and the harm the offence is seeking to prevent, this limitation is lawful and does not arbitrarily or unreasonably limit the right to privacy.

Right to freedom of thought, conscience, religion and belief and right to culture

Nature of the right

The right to freedom of thought, conscience, religion and belief, including to adopt the religion or belief of their choice and to demonstrate their religious belief in public or private, is contained in section 14 of the Charter. It provides that a person must not be coerced or restrained in a way that limits their freedom of religion or belief in worship, observance, practice or teaching. Historically, the right to have or adopt a religion or belief has been held to be absolute and unqualified (e.g. Eweida v The United Kingdom (2013) 57 EHRR 8); however, limitations on the right to demonstrate religion or belief have been found to be reasonable and justified Victorian Electoral Commission [2009] VCAT 2191.

Section 19 provides for the right to culture and is based on Article 27 of the International Convention on Civil and Political Rights (ICCPR). This right ensures individuals, in community with others that share their background, can enjoy their culture, declare and practise their religion and use their language. It protects all people with a particular cultural, religious, racial or linguistic background.

The Bill could limit a person’s freedom to demonstrate their religion, culture or belief in public (e.g. where a person demonstrates their adherence to a particular cultural practice, belief or religion in public in a way they purport is acceptable in accordance with their faith or religion, but others consider offensive).

The importance of the purpose of the limitation

The purpose of the limitation is to ensure that the public is protected from the harm and distress that result from exposure to grossly offensive public behaviour that is not done reasonably and in good faith for legitimate purposes.

Nature and extent of the limitation

The Bill potentially limits this right by placing an evidential burden on people who seek to rely on a defence when engaging in a range of conduct reasonably and in good faith, including for genuine political, artistic, educational, cultural and religious reasons. There is also a broad defence category of conduct that is in the public interest. These defences are intended to ensure any limitation of religious or cultural rights is the least restrictive possible.

By creating a reasonable and in good faith defence, the offence places an evidential burden on the accused, requiring them to raise evidence that their conduct was for a genuine religious purpose. For example, whether a person is engaging in certain conduct for a religious purpose is a matter peculiarly within the knowledge of that person, and that person is best placed to provide evidence as to whether the display was for a religious purpose.

However, this offence does not transfer the legal burden of proof. Once the accused has pointed to evidence of an exception, the burden shifts back to the prosecution to prove the essential elements of the offence beyond reasonable doubt.

Relationship between the limitation and its purpose

The limitation imposed by section 195K(5) supports the Bill’s purpose of protecting the public from exposure to grossly offensive conduct, while also ensuring conduct engaged in reasonably and in good faith for a variety of reasons is permitted.

Any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve

The Bill could leave the onus to raise and disprove all defences with the prosecution, thereby removing the evidential burden from the accused person. However, this would make the offence largely unworkable, as the circumstances listed in section 195K(5) are likely to often be within the peculiar knowledge of an accused person.

For these reasons, the narrow limitation on these rights imposed by section 195K(5) is reasonable and justified in the circumstances.

Right to peaceful assembly and freedom of association and right to public life

Nature of the right

Section 16(1) of the Charter protects every person’s right to peaceful assembly. Under the ICCPR, the right to peaceful assembly entitles persons to gather intentionally and temporarily for a specific purpose.

Section 18(1) of the Charter provides that every person in Victoria has the right to participate in the conduct of public affairs. The UN Human Rights Committee, when commenting on article 25(a) of the ICCPR, considered the right to participate in public life to lie at the core of democratic government.

The offence limits the right to freedom of association and right to public life by preventing people from displaying their personal or political views in public, such as at protests or demonstrations, or while attending a local government meeting, in grossly offensive or abhorrent ways.

The importance of the purpose of the limitation

The purpose of the limitation is to uphold the Bill’s intent to protect the public from the harm and distress caused by exposure to grossly offensive public behaviour that is not done reasonably and in good faith.

Nature and extent of the limitation

New section 195K(1) provides that a person commits an offence if they engage in grossly offensive conduct in a public place, or where the conduct is witnessed by a person in a public place, while knowing or being reckless as to the public nature of the conduct.

The narrow scope of the offence, which is targeted at extreme examples of offensive public behaviour, means that people who hold controversial and even offensive views may still assemble in public or participate in the conduct of public affairs. People with such views will therefore remain free to express their opinions in gatherings or demonstrations, or at council meetings, subject to existing laws. They will also be able to publicly display their association with or support for certain ideologies or beliefs as long as they do not do so in a grossly offensive manner.

Additionally, the defences available at section 195K(5) protect conduct that is engaged in reasonably and in good faith for a broad range of reasons, including political conduct, or conducted engaged in for discussion and debate that is in the public interest.

Relationship between the limitation and its purpose

The purpose of the Bill is to protect the public from grossly offensive behaviour in public spaces, where there should be a reasonable expectation of peace and safety. The application of the offence to conduct that occurs in public is therefore fundamental to the purpose of the Bill. The harm and distress caused by grossly offensive public conduct can only be prevented if the offence applies to conduct that occurs in a public place.

Any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve

The offence could not be modified to entirely exempt protests, demonstrations, or participation in public life. Grossly offensive behaviour that occurs in these circumstances, where none of the defences in section 195K(5) apply, cannot be justified because it exposes members of the public to harm and undermines the sanctity and decency of public places, which need to be maintained for the safety and enjoyment of all.

The limitations on both rights are reasonable and justified given the potentially significant harm caused by grossly offensive public behaviour.

Right to be presumed innocent until proved guilty according to law

Nature of the right

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right in section 25(1) is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

The Bill imposes an evidential burden on the accused for the defences outlined at section 195K(5), which may appear to limit the right to be presumed innocent until proven guilty according to law.

The importance of the purpose of the limitation

The purpose of the evidential burden is to support the proper operation of the offence by ensuring that the public is protected from exposure to grossly offensive public behaviour that is not done reasonably and in good faith, and to allow for the offence to be workably prosecuted.

Nature and extent of the limitation

Victorian courts have held that the right to be presumed innocent until proven guilty according to law is not limited by the imposition of an evidential burden on the accused (R v DA & GFK [2016] VSCA 325). The defences outlined at section 195K(5) merely impose an evidential burden rather than a legal burden.

By creating a defence where the accused engaged in the conduct reasonably and in good faith, the provisions place an evidential burden on the accused in that they require the accused to raise evidence of the defence. However, in doing so, this offence does not transfer the legal burden of proof. Once the accused has pointed to evidence of one of the reasonable conduct defences listed in section 195K(5)—which will ordinarily be peculiarly within their knowledge—the burden shifts back to the prosecution to prove the essential elements of the offence.

Relationship between the limitation and its purpose

The imposition of an evidential burden ensures the offence created by the Bill can be effectively and consistently prosecuted, thereby protecting the public from public displays of grossly offensive conduct.

Any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve

The Bill could leave the onus to raise and disprove all defences with the prosecution, thereby removing the evidential burden from the accused person. However, this would make the offence largely unworkable, as the circumstances listed in section 195K(5) are likely to often be within the peculiar knowledge of an accused person, and it is therefore appropriate that the accused should be required to raise or point to evidence that a defence applies.

In these circumstances, and as courts have held, it is reasonable and proportionate to shift the burden of proof to the accused, because only they may know and be able to articulate why their conduct did not breach community standards.

Conclusion

I consider that the Bill is compatible with the Charter because, to the extent that some provisions may limit human rights, those limitations are reasonable and demonstrably justified in a free and democratic society.

Hon. Natalie Hutchins, MP

Minister for Crime Prevention

Minister for Corrections

Minister for Youth Justice

Minister for Victim Support

Second reading

Ms HUTCHINS (Sydenham—Minister for Crime Prevention, Minister for Corrections, Minister for Youth Justice, Minister for Victim Support) (10:15): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Bill creates a new statutory indictable offence in the Crimes Act 1958 of engaging in conduct that is grossly offensive to community standards of acceptable conduct. This will provide a modern and fit for purpose offence to appropriately respond to public acts that are grossly offensive and cause significant harm and distress to members of the public who are exposed to that behaviour. In this way, the offence seeks to preserve the dignity and peace of public places for the benefit of all. The new offence will replace the outdated and uncertain common law offence of outrage public decency, which will be repealed by the Bill.

The need for reform was highlighted in the aftermath of the Eastern Freeway tragedy. This tragic incident occurred on 22 April 2020 and resulted in the untimely deaths of four Victoria Police officers; they were Leading Senior Constable Lynette Taylor, Senior Constable Kevin King, Constable Glen Humphris and Constable Joshua Prestney. These officers died serving and protecting the Victorian community. I express my profound and deepest sympathies to the families of those killed in the line of duty that day.

The offensive commentary directed towards these officers and the filming at the collision scene caused extreme distress to the families of the victims and their friends and colleagues. It also shocked and appalled the wider Victorian community.

In a modern society, we expect that public spaces are maintained as places of decency and dignity that all members of our society can safely enjoy free from intimidation and distress. This reform is not about punishing low level offensive behaviour that might simply be annoying or mildly offensive to some people, and not concern others at all. It is about protecting more fundamental values and ensuring that the criminal law can appropriately respond when these fundamental values are breached and significant social harm is caused.

The Eastern Freeway tragedy highlighted that there is a gap in responding to instances of grossly offensive conduct. Relying on an archaic common law offence of outraging public decency that was developed in another century to fill this gap is not a desirable outcome. That offence does not have a maximum penalty and its application and scope are uncertain. Consequently, the government committed to introducing a new statutory indictable offensive behaviour offence to ensure grossly offensive acts can be prosecuted and appropriately punished. This Bill delivers on that commitment.

While the types of circumstances to which this new offence might apply are expected to infrequently arise, it is important that Parliament provide guidance about how this grossly offensive conduct should be dealt with.

I will now explain the key features of the new offence.

Public conduct

The new offence applies to conduct occurring in public places as defined in the Summary Offences Act 1966. This definition includes, for example, parks, roads, sports grounds and public transport. It also adopts a ‘catch-all’ that captures any public place. While this definition is broad it does not clearly include non-government schools or post-secondary education institutions, while government schools are expressly listed. To ensure grossly offensive conduct in educational settings is consistently captured, the Bill extends the public place definition for this offence, which is consistent with the approach in the recent Nazi Symbol Prohibition Bill.

Conduct occurring in a private place, such as the home and other private spaces, is generally excluded from the scope of the new offence. However, the new offence also applies to private conduct that has been seen or heard by a person in a public place. This recognises that a person who is in a public place might be exposed to grossly offensive conduct occurring in private places. For example, a person committing a grossly offensive act in the foyer of a private building (that is not within the Summary Offence Act definition) could still be captured by the offence if it was seen or heard by a person in a public place, such as where the act can be easily observed through glass panels from the public footpath outside the building.

Both limbs of the offence are inherently linked to the concept of public places; whether it be that grossly offensive conduct occurs in a public place or is able to be witnessed by a person in a public place. The central purpose of the offence is to maintain the dignity and decency of public places. This upholds the expectation that all people enjoy can enjoy public places peacefully and without the risk of exposure to distressing behaviour that causes significant harm.

The new offence will not include conduct that has been seen or heard by a person using electronic communication. This is because offensive online conduct is already adequately covered by Commonwealth law through the operation of section 474.17 of the Criminal Code Act 1995, which relates to using a carriage service to menace, harass or cause offence.

The conduct must be grossly offensive to community standards of acceptable conduct

Public indecency and offensive behaviour offences capture a spectrum of behaviour. The new offence is intended to capture serious conduct of such a magnitude that it meets the standard of an indictable offence and cannot adequately be punished by the existing offensive behaviour offences.

The Bill provides that a person commits an offence if they engage in conduct that grossly offends community standards of acceptable conduct. Offensiveness has a legal meaning at common law. It means the type of behaviour calculated to wound feelings and arouse anger, resentment, disgust or outrage in the mind of a reasonable person (Worcester v Smith [1951] VLR 316). Not all conduct that elicits this response will be considered offensive enough to warrant criminal punishment.

Building on this, the words ‘grossly offensive’ are intended to emphasise the high degree of offensiveness that is required to meet the threshold for this offence and to distinguish it from equivalent low-level offences. Conduct that is merely offensive, shocking or insulting would not reach the threshold for the offence. Grossly offensive conduct is exceptional and unique by nature, as evident in the abhorrent conduct committed during the Eastern Freeway tragedy.

It is a question of fact whether the conduct is grossly offensive to community standards. The concept of community standards is an open and objective one. Recognising that community standards change and evolve over time, and that offensive conduct must be considered in its context, the Bill does not include any specific standards or factors. The courts have applied a reasonable person test when interpreting the meaning of community standards and have looked to contemporary standards of a multicultural, partly secular and largely tolerant, if not permissive, society (Pell v Council of the Trustees of the National Gallery of Victoria [1998] 2 VR 391).

However, to provide greater clarity about the scope of the offence, the Bill provides some guidance about conduct that would not meet the threshold for gross offensiveness. For example, section 17 of the Summary Offences Act applies to low-level offensive conduct like obscene, indecent, or threatening language and behaviour in public. Other offences in the Summary Offences Act deal with low-level offensive conduct such as being drunk and disorderly in a public place. It is not the intention of the new offence to reinforce or supplant existing behavioural offences like these, or to provide an alternative charge for offences that are intended to be repealed. The type of conduct sought to be captured by the offence must reach a much higher level of offensiveness than this type of low or mid-level offensive conduct.

The fault element

The first part of the fault element requires that to be found guilty of the offence, the accused must know, or be reckless, about whether their conduct occurs in a public place or is likely to be seen or heard by a person in a public place. This recognises that there may be circumstances in which a person may not know or foresee the possibility of their conduct being public in nature, and in such circumstances it would not be appropriate to find them guilty of the offence.

The second part of the fault element requires that the accused must know, or a reasonable person would have known, that their conduct would likely grossly offend community standards of acceptable conduct. The first test in this part of the fault element is a subjective one, requiring the prosecution to prove that the accused knew that their conduct was grossly offensive. In contrast, the second test is an objective one, requiring the prosecution to prove that a reasonable person would have known that the conduct was likely to be grossly offensive. The objective test recognises that there may be circumstances in which the accused does not subjectively know that their conduct would likely grossly offend community standards of acceptable conduct, but they can still be found guilty if objectively, according to the reasonable person test, this was the case.

A broad defence will be available for good faith and reasonable conduct

The Bill recognises that there are circumstances in which grossly offensive conduct does not warrant criminal sanction because it serves another legitimate purpose in an open and democratic society with values such as freedom of political communication, and freedoms of expression and assembly.

Consequently, the Bill provides that it is a defence to a charge to engage in conduct reasonably and in good faith:

a. in the performance, exhibition or distribution of an artistic work; or

b. in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for:

i. a genuine political, academic, educational, artistic, religious, cultural or scientific purpose; or

ii. a purpose that is in the public interest; or

c. in making or publishing a fair and accurate report of any event or matter of public interest.

The requirement that the conduct must be engaged in reasonably and in good faith is intended to ensure that an accused can only rely on the defence if their conduct was genuinely undertaken for one of the above reasons.

The defence places an evidential burden on the accused. This requires an accused to adduce or point to evidence that suggests a reasonable possibility that the defence exists. The prosecution is then required to disprove the defence when proving their case beyond reasonable doubt.

There will be a DPP consent requirement

The Bill provides that a prosecution of this offence must not be commenced without the consent of the Director of Public Prosecutions. This safeguard ensures the offence will only be prosecuted where appropriate and if it is in the public interest to do. The DPP exercises their discretion in accordance with a published policy, which requires them to take into account an accused person’s age and other characteristics when considering whether there is a public interest in prosecutions. This type of requirement is used in legislation to provide an oversight mechanism for offences that may be particularly complex to prosecute.

The maximum penalty responds to the seriousness of the offending

The new offence will have a maximum penalty of level 6, five years imprisonment. This reflects the extremely high degree of offensive conduct which the offence intends to capture and the harm to the community such conduct would cause. Importantly, a clear maximum penalty can better guide sentencing judges when compared to the common law offence which had a penalty at large.

Abolition of the common law offence

The Bill abolishes the common law offence of outraging public decency, ensuring that grossly offensive conduct is dealt with and punished according to contemporary understandings of the law.

Conclusion

The government recognises the harm grossly offensive and abhorrent conduct can have upon the community, as evident in the lasting impact of what occurred during the Eastern Freeway tragedy. The new offence responds to the circumstances of this event but also seeks to go beyond it; creating a contemporary public decency offence targeted at behaviour that is grossly offensive and abhorrent to community standards of acceptable conduct. It is considered that through it public places will be maintained as places of decency and dignity, free to be used and enjoyed by all, in peace and in comfort.

Finally, the Bill will also defer commencement of the Summary Offences Amendment (Decriminalisation of Public Drunkenness) Act 2021 by 12 months to November 2023. This will have the effect of deferring the repeal of public drunkenness offences by 12 months.

I wish to acknowledge the tragic legacy that has led to these reforms and the longstanding advocacy of the Aboriginal and Torres Strait Islander community and their ongoing contribution to these reforms, including the family of Aunty Tanya Day who tragically died after being held in police custody in December 2017.

The decision to defer decriminalisation of public drunkenness has not been made lightly. It reflects the need to establish a suitable, culturally safe health model and to ensure the necessary services are in place to support people who are intoxicated in public once decriminalisation takes effect.

While significant groundwork has been laid, the impact of the COVID-19 pandemic over the past two years has meant we are not as far along in establishing the necessary health model as hoped. We want to get it right in Victoria, and the delay of 12 months is going to enable us to be in the best position to achieve a successful and enduring transition from a justice-based response to public intoxication, to a health one.

I commend the Bill to the house.

Mr WAKELING (Ferntree Gully) (10:15): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Thursday, 7 July.