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Crimes Legislation Amendment Bill 2022
Introduction Print
EXPLANATORY MEMORANDUM
General
A Bill for an Act to amend the Crimes Act 1958 to create a new offence of engaging in grossly offensive public conduct and to abolish the common law offence of outraging public decency and to amend the Summary Offences Amendment (Decriminalisation of Public Drunkenness) Act 2021 to extend its default commencement date.
Clause Notes
Part 1—Preliminary
Clause 1 provides that the purposes of the Bill are—
• to amend the Crimes Act 1958—
• to create a new offence of engaging in grossly offensive public conduct; and
• to abolish the common law offence of outraging public decency; and
• to amend the Summary Offences Amendment (Decriminalisation of Public Drunkenness) Act 2021 to extend the default commencement date for 12 months due to COVID-19 causing significant delays in the implementation and trial of a health-based response to public drunkenness.
591163 BILL LA INTRODUCTION 21/6/2022
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Clause 2 is the commencement provision.
Subclause (1) provides that the Bill, except Part 2, comes into operation on the day on which the Bill receives the Royal Assent.
Subclause (2) provides that subject to subsection (3), Part 2 comes into operation on a day or days to be proclaimed.
Subclause (3) provides that if a provision of Part 2 does not come into operation before 3 July 2023, it comes into operation on that day.
Part 2—Amendment of Crimes Act 1958
Clause 3 amends the heading to Division 2C of Part I of the Crimes Act 1958 to insert "and grossly offensive public conduct" after "order".
Clause 4 inserts new sections 195J, 195K and 195L in the Crimes Act 1958.
New section 195J—Abolition of common law offence of outraging public decency
New section 195J abolishes the common law offence of outraging public decency.
New section 195K—Grossly offensive public conduct
New section 195K(1) outlines the elements of the offence of grossly offensive public conduct.
New section 195K(1)(a) provides that the offence applies to conduct that grossly offends community standards of acceptable conduct.
The intention of the offence is to protect the public from the most extreme examples of seriously offensive conduct. The offence will target conduct of such a magnitude that it meets the standard of an indictable offence and cannot adequately be punished by existing offensive behaviour offences. The overarching purpose of criminalising such conduct is to protect the public from the harm and distress caused by grossly offensive behaviour, and to preserve public spaces for the peaceful and safe enjoyment of all.
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Public indecency and offensive behaviour offences capture a spectrum of behaviour. 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. Courts have held that not all conduct that elicits this response will be considered offensive within the meaning of a criminal offence; that is, the law recognises that offensive behaviour occurs on a spectrum. The words "grossly offensive" are intended to convey that the offence should capture conduct at the highest end of this spectrum.
What is reasonable, and where current community standards lie, is intended to be an objective test, and will be a matter for the factual decision-maker (i.e. the jury or judicial officer) to interpret. Community standards are intended to be understood as those of a multicultural, pluralistic and largely tolerant society, rather than simply reflecting mainstream views.
New section 195K(1)(b) provides that to constitute an offence under this section, the conduct must occur in a public place, or be seen or heard by a person in a public place. Public place is defined in section 195K(6), and takes on the meaning provided in section 3 of the Summary Offences Act 1966, with the additional inclusions of non-Government schools and post-secondary education institutions (within the meaning of the Education and Training Reform Act 2006) to ensure consistent coverage of places of education.
There is no requirement for conduct that occurs in a public place to be actually witnessed. This is because the purpose of the offence is to prevent and punish any grossly offensive conduct that occurs in public spaces. The fact that the conduct occurs in a public place makes it a public act.
However, conduct that occurs in a private place (e.g. foyer of a private building) but is seen or heard by a person in a public place (e.g. public street where the private building is located) must actually be seen or heard by a person in a public place to constitute an offence under this section. This ensures that the offence only criminalises private behaviour when that behaviour affects the public and they are exposed to grossly offensive conduct. In cases where private conduct is not witnessed, no social harm occurs and it would be inappropriate and disproportionate for a person to be prosecuted.
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New sections 195K(1)(c) and (d) set out a two-part fault element that must be satisfied. It is appropriate to include a two-part fault element for this offence given the seriousness of the conduct captured and the high maximum penalty.
The first part of the fault element requires the offender to know that, or be reckless as to whether, their conduct is in a public place or likely to be seen or heard by a person in a public place. This recognises that there may be circumstances in which the offender may not know or foresee the possibility of their conduct being public in nature and in these circumstances, they should not be found guilty of the offence.
The second part of the fault element requires that the offender knows, or alternatively, that a reasonable person would know, that the conduct would likely grossly offend community standards of acceptable conduct. This requires the prosecution to prove that the offender knew that their conduct was likely to grossly offend community standards of acceptable conduct (a subjective test); or alternatively, the prosecution will need to prove that a reasonable person would have known that the offender's conduct was likely to be grossly offensive to community standards of acceptable conduct (an objective test). This alternative test recognises that there may be circumstances in which the offender does not subjectively know their conduct would likely grossly offend community standards due to their individual characteristics, but they can nevertheless be found guilty of the offence if the objective test—based on a reasonable person—is met.
New section 195K(2) is the penalty provision. It provides that a person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum). This high maximum penalty reflects the extreme kind of offensive conduct the offence is intended to capture.
New section 195K(3) provides that a reference in subsection (1) to conduct being seen or heard does not include seeing or hearing it by using electronic communication. This provision is intended to exclude transmission or sharing via online or electronic means from being captured by the offence. Such conduct is already sufficiently covered by existing Commonwealth criminal offences.
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New section 195K(4) outlines some exclusions that limit the operation of the offence by specifying types of conduct that would not, on its own, meet the threshold for gross offensiveness: using profane, indecent or obscene language; or being intoxicated. This intends to convey that the offence will only apply to the most grossly or extremely offensive behaviour and should not be used for lower order offensive conduct. It is not the intent of this section to exclude conduct that includes the behaviours described when they occur in combination with other conduct, which together meets the grossly offensive threshold.
New section 195K(5) provides defences to the offence. It is a defence to a charge of the offence if the accused engaged in the conduct reasonably and in good faith—
• in the performance, exhibition or distribution of an artistic work; or
• in the course of any statement or publication made, or discussion or debate held, or any other conduct engaged in, for—
• a genuine political, academic, educational, artistic, religious, cultural or scientific purpose; or
• 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.
It is intended that the defences available are broad and open to interpretation by a judicial officer or jury. Whether something is "artistic" or "reasonable", for example, will turn on the facts, based on contemporary understandings of these terms. The defences are intended to ensure that freedom of expression, including political speech and protest, is not inappropriately restricted when done reasonably and in good faith for a genuine purpose.
The list is not exhaustive, as indicated by the reference to a purpose that is in the public interest in new section 195K(5)(b)(ii).
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These defences impose an evidential burden on an accused person: that is, the accused person is only required to point to evidence that suggests a reasonable possibility that the defence exists. The prosecution would then need to disprove the defence when proving their case beyond reasonable doubt. Requiring the accused to point to evidence of the defence is appropriate, as the facts of any proposed defence are likely to be within the peculiar knowledge of an accused person.
New section 195K(6) provides a definition of public place for the purpose of section 195K. Public place means—
• a public place within the meaning of section 3 of the Summary Offences Act 1966; or
• a non-Government school within the meaning of section 1.1.3(1) of the Education and Training Reform Act 2006; or
• a post-secondary education institution within the meaning of section 1.1.3(1) of the Education and Training Reform Act 2006.
New section 195L—Consent of Director of Public Prosecutions required
New section 195L provides that a prosecution for an offence against section 195K(1) must not be commenced without the consent of the Director of Public Prosecutions. This section is intended to ensure the offence is used sparingly and a prosecution will only be commenced where it is appropriate and in the public interest to do so. It is intended to operate as a safeguard to ensure the unique characteristics and vulnerabilities of an accused person are taken into account in determining whether to commence a prosecution.
Part 3—Amendment of Summary Offences Amendment (Decriminalisation of Public Drunkenness) Act 2021
Clause 5 extends the commencement date for the Summary Offences Amendment (Decriminalisation of Public Drunkenness) Act 2021 set out in section 2(2) of that Act by 12 months. The revised commencement date is intended to be 7 November 2023.
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Clause 6 extends the date on which the Summary Offences Amendment (Decriminalisation of Public Drunkenness) Act 2021 is to be repealed in section 14 of that Act by 12 months. This is necessary to support the amended commencement date of that Act, which will now commence on 7 November 2023. The revised repeal date will be 7 November 2024, 12 months after commencement.
Part 4—Repeal of this Act
Clause 7 repeals the Act on 3 July 2024. This repeal does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).