Wednesday, 18 June 2025

Bills

Crimes Amendment (Performance Crime) Bill 2025

Statement of compatibility

Sonya KILKENNY (Carrum – Attorney-General, Minister for Planning) (10:41): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Crimes Amendment (Performance Crime) Bill 2025:

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 Amendment (Performance Crime) Bill 2025 (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 seeks to protect and promote community safety, by introducing a new performance crime offence into the Crimes Act 1958 to prohibit a person from publishing material that draws attention to their involvement in the following specified serious offences:

• theft of a motor vehicle

• burglary or aggravated burglary

• carjacking or aggravated carjacking

• home invasion or aggravated home invasion

• robbery or armed robbery, and

• affray or violent disorder.

Human Rights Issues

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

The Charter rights that are relevant to the Bill are the:

• Right to privacy (section 13)

• Freedom of expression (section 15)

• Protection of children and families (section 17)

• Rights of children in the criminal process (section 23), and

• Rights in criminal proceedings (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. I do not consider that the Bill unreasonably or unjustifiably limits rights under the Charter. The limitations are reasonable and justice in accordance with section 7(2) of the Charter.

Right to privacy and reputation

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.’

Justice Bell has characterised the right to privacy as including protection of a person’s capacity for communication (by whatever means) with others (Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328 [29]).

While the Bill interferes with communication by people charged with certain serious offences about their offending conduct, this limitation is not unlawful (as it is provided for by law), or arbitrary. Interference with privacy will be arbitrary if it is capricious, unpredictable, unjust or unreasonable (Minogue v Thompson [2021] VSCA 358 [55]). The Bill is limited in scope to certain communication by certain people that draws attention to the specified offences. Given the harm the Bill is seeking to prevent, this limitation is lawful and does not arbitrarily or unreasonable limit the right to privacy.

The Bill promotes the right to privacy by criminalising the conduct of people who share material about themselves unlawfully entering and interfering with victims’ homes and other property or otherwise interfering with their person. Publication of this material can potentially identify and retraumatise victims, compounding the harm caused by the unlawful conduct.

Right to freedom of expression

Section 15 of the Charter provides that every person has the right to freedom of expression, including the freedom to hold an opinion without interference and seek, receive and impart information and ideas of all kinds through a variety of mediums.

The right is not absolute and may 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 (section 15(3) of the Charter). This includes measures for ‘peace and good order, public safety and prevention of disorder and crime’ (Magee v Delaney (2012) 39 VR 50 [151]).

The Bill limits this right by restricting a person’s ability to publish material advertising specified offending conduct. Criminal acts of threats and violence are not protected forms of expression (Magee v Delaney (2012) 39 VR 50 [86]–[91]). While some of the specified offences that would be captured by the Bill may involve criminal acts of threats and violence, others such as theft of motor vehicle or burglary where no victim is present do not.

However, given the limited scope of the Bill, applying only to certain offences, the restriction is lawful as it is reasonably necessary for the protection of public order by preventing crime.

Publishing material to draw attention to involvement in certain high impact offending presents a risk to public order by encouraging others to participate in similar offending, trivialising the harm caused to victims and normalising criminal behaviour. Public order is protected by creating an offence to prohibit publication of this material.

The limitation is consistent with the Bill’s purpose to protect community safety by creating a new performance crime offence to address an emerging trend of people publishing material to draw attention to their involvement in offences such as theft, home invasion, robbery, burglary, affray and carjacking.

The Bill is limited in scope to apply only to publication by a person who was involved in committing a specified offence. This recognises that certain prevalent offences present a greater risk to public order and there may be legitimate reasons to share material about offending by others, including for journalistic broadcast, academic purposes or community awareness.

The Bill imposes a narrow limit on the right to freedom of expression. However, I consider these limitations are reasonable and justified in accordance with section 7(2) of the Charter, as informed by the factors set out in section 15(3).

Protection of children and families and children in the criminal process

Section 17 of the Charter protects the rights of families and children. Section 17(2) recognises the vulnerability of children because of their age, conferring additional rights on them. It is concerned with protecting the ‘best interests of the child’ (Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796 [145]).

Sections 23 and 25(3) of the Charter protect the rights of children in the criminal process. An accused child must be brought to trial as quickly as possible (section 23(2) of the Charter). Section 25(3) of the Charter provides that a child charged with a criminal offence has the right to a procedure that takes account of their age and the desirability of promoting the child’s rehabilitation.

The new offence does not impact on or alter any protections or special procedures for children in the criminal process. The Bill is consistent with the right of a child to be brought to trial as quickly as possible, as the offence is a summary offence and must be charged within the applicable time limits. The Bill is compatible with the rights accorded to children in criminal proceedings by the Charter.

The Hon. Sonya Kilkenny MP

Attorney-General

Second reading

Sonya KILKENNY (Carrum – Attorney-General, Minister for Planning) (10:42): 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:

One of the challenges confronting our community today is the rise of ‘posting and boasting’ about criminal offending – where people commit serious crimes and then share content advertising or drawing attention to their conduct on the internet, primarily via social media.

The performative nature of these offences introduces a new layer of harm: it glorifies criminal behaviour, encourages others to emulate it, exacerbates community concerns and fear, and erodes public confidence in the justice system. It may also publicly identify and retraumatise victims.

This Bill will introduce a new offence of performance crime into the Crimes Act 1958 that recognises the additional criminality associated with publishing material that advertises serious criminal offending. While existing laws cover the underlying conduct (such as the motor vehicle theft or burglary), they do not specifically criminalise the act of turning crime into content. Such behaviour can be considered during sentencing of an offender, however the new offence will provide additional accountability, denounce the publication of this content and acknowledge the further trauma it can cause for victims of these crimes.

Introducing a targeted offence sends a clear message: publishing material that advertises or draws attention to offending will result in serious consequences. Communities have a right to feel safe, and to know that the justice system is equipped to respond to new forms of anti-social behaviour. The performance crime offence demonstrates that we are listening and acting accordingly.

The performance crime offence

The new offence criminalises the publication of material that draws attention to someone’s own involvement in the following serious offences:

• theft of motor vehicle

• carjacking and aggravated carjacking

• burglary and aggravated burglary

• home invasion and aggravated home invasion

• robbery and armed robbery

• affray and violent disorder; and

• inciting or attempting to commit one of the above offences, or being complicit in such offending (e.g. encouraging or directing a robbery).

The performance crime offence will carry a 2-year maximum penalty. This is in addition to the penalty for the underlying serious offence. For example, if a person is found guilty of a home invasion and also the new performance crime offence, they may be sentenced to a maximum term of 25 years imprisonment in relation to the home invasion and up to 2 years imprisonment for the performance crime offence.

The new offence targets serious confrontational theft and violent group offences of concern to the community, which are increasing in overall frequency or becoming more prevalent among young offenders, who are most likely to ‘post and boast’ about their conduct.

A person can be found guilty of a performance crime offence if they have been found guilty of the relevant serious offence. However, the Bill makes clear that a person may be charged with the performance crime offence before a finding of guilt for the relevant offence. It is expected that the relevant offence and the performance crime offence will generally be charged at the same time, and will progress together in the same court proceeding. The prosecution of both the underlying offence and the separate performance crime offence is more likely to result in higher sentences as a penalty must be applied to both offences.

The offence will capture a broad range of conduct. The definitions of ‘material’ and ‘publish’ in this Bill are defined broadly to reflect the many ways offenders share material that draws attention to their involvement in serious criminal offences. ‘Material’ is defined to mean any film, audio, photograph, printed matter, image, computer game or text or any electronic material or any other thing of any kind which depicts or describes anything done in the course of committing the relevant offence, property obtained or damage or harm caused. ‘Publish’ is defined as including exhibiting, communicating, sending, supplying, transmitting the material or making it available to other people. These definitions are consistent with existing definitions of these terms in the Crimes Act.

Criminal behaviour that falls outside the scope of the new offence will continue to be dealt with by existing criminal offences where appropriate, such as grossly offensive public conduct and Commonwealth offences of using a carriage service to menace, harass or cause offence.

Conclusion

The new performance crime offence sends a clear message that the community denounces ‘posting and boasting’ about criminal conduct, and that those who do so will face serious consequences.

I commend the Bill to the house.

Cindy McLEISH (Eildon) (10:42): I move:

That the debate be now adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday2 July.