In this article, we discuss a new offence inserted into the Crimes Act 1958 (Victoria) by reason of the Crimes Legislation Amendment Bill 2022. We discuss the rationale for the new offence, and the elements and penalties.
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Crimes Legislation Amendment Bill 2022
On 22 June 2022, the Labor Government introduced the Crimes Legislation Amendment Bill 2022, establishing a new statutory offence of engaging in conduct that is grossly offensive to community standards of behaviour.
The object of this amending legislation was to replace the previous common law offence of outraging public decency.
The impetus for the new offence of Grossly Offensive Public Conduct was the tragic and widely reported Eastern Freeway car accident in 2020.
Although the motorist who the police had initially apprehended for excessive speeding did not directly cause the death of the officers, his behaviour and conduct towards the police whilst they were dying from fatal injuries caused by another motorist drew widespread community condemnation and discontent.
For more information on the background of the offence read here.
Grossly Offensive Public Conduct
The new legislation is contained in Section 195K of Crimes Act 1958 (VIC) (The Act) and is an indictable offence that can be heard and determined in the Magistrates' Court.
Section 195K provides that an offender engages grossly offensive public conduct if:
a) the offender engages in conduct that grossly offends community standards of acceptable conduct; and
b) that conduct is
(i) engaged in at a public place; or
(ii) or is seen or heard by a person in a public place.
Moreover, the offender must have knowledge that, or is reckless as to whether the place at which the conduct is engaged is in a public place or the conduct is likely to be seen or heard by a person in a public place.
Key definitions: 'conduct & 'public place'
'Conduct' under section 195B of the Act means 'an act or omission to do an act'
The term “public place” means:
(a) A public place within the meaning of section 3 of the Summary Offences Act 1966; or
(b) A non-Government school within the meaning of section 1.1.3(1) of the Education and Training Reform Act 2006; or
(c) A post-secondary education institution within the meaning of section 1.1.3(1) of the Education and Training Reform Act 2006.
Defences to Grossly Offensive Public Conduct
As with any criminal offence, the prosecution must prove each element beyond reasonable doubt. Consequently, a defence may arise as to a factual dispute concerning the conduct which is said to be grossly offensive.
The gravamen of 'grossly offensive public conduct' is that it offends the community standards of acceptable conduct.
Section 195K(3) places some limits on what is an otherwise expansive concept of 'community standards of acceptable conduct', namely:
(a) just became a person uses language that is profane, indecent or obscene; or
(b) the person is intoxicated
A statutory defence is also provided for under section 195K(5) where it can be argued that an accused engaged 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 or publication made, or discussion or debate held, or any other conduct engaged in, for:
(i) genuine political, academic, educational, artistic, religious, cultural or scientific purpose; or
(ii) a purpose that is in the public interest; or
(iii) in making or publishing a fair and accurate report of any event or matter of public interest.
Penalties for Grossly Offensive Public Conduct
Under section 195K(2) a maximum of 5 years imprisonment applies.