Criminalising Grossly Offensive Public Conduct

Liberty Victoria

Liberty Victoria is opposed to the proposed new offence of engaging in grossly offensive conduct in public.  It should not become law.

The Bill seeks to respond to particular conduct by Mr Richard Pusey that understandably outraged the community, and in particular his recording of dying police officers.

The proposed new offence does not define particular conduct or harm which is sought to be prohibited. The offence requires that the offender engage “in conduct that grossly offends community standards of acceptable conduct”. The offence is punishable by up to 5 years’ imprisonment.

Because the prohibited grossly offensive conduct is(deliberately) left undefined and ambiguous, the proposed offence will not act as a deterrent. The gravamen of the offence is a matter of moral opinion where reasonable minds might differ as to whether the threshold of “gross offence” has been met in a particular case.

There is no demonstrated need for this new offence. Mr Pusey was dealt with by the law as it stands and was successfully prosecuted and imprisoned for his conduct. We should be slow to expand the power of the executive to regulate morality in relation to what some may regard as grossly offensive conduct.

Clear and prospective laws that are knowable in advance are a cornerstone of the rule of law and fundamental to a society that values individual freedom. People should be able to know in advance what conduct is prohibited. Their criminality – and their liberty – should not be contingent upon a standard that can only be known once a fact-finder subjectively discerns whether amorphous community standards have been grossly offended.

The offence is unnecessary, highly ambiguous, and may well be misused and result in the executive and courts dealing with highly politicised matters which the criminal law is, in general, ill-equipped to deal with.

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