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Victoria to criminalise ‘outrageously’ offensive conduct

New laws criminalising grossly offensive conduct will be created in Victoria after a campaign by the husband of Leading Senior Constable Lynette Taylor, one of the four police officers killed on the Eastern Freeway in 2020.

Attorney general Jacyln Symes today announced the introduction of the crimes legislation amendment bill 2022, which creates a new statutory offence of engaging in conduct that is grossly offensive to community standards of behaviour.

The new offence will carry a maximum penalty of five years in jail.

She said the Eastern Freeway tragedy highlighted a gap in responding to instances of grossly offensive conduct.

Taylor, Senior Constable Kevin King, Constable Joshua Prestney and Constable Glen Humphris were detaining driver Richard Pusey for speeding offences when they were struck by a truck and killed.

Pusey went on to film the officers as they lay dying while making vulgar comments. He was ultimately sentenced to 10 months’ jail after pleading guilty to drug possession, reckless conduct endangering serious injury, speeding and outraging public decency – an extremely rare charge.

Only three months of his sentence was related to his actions in filming the dying officers.

Symes said the common law offence of outraging public decency that was used in that case was archaic, unclear in its scope and did not have a clear maximum penalty. It will be abolished as part of the new offence’s introduction.

She told reporters outside parliament:

What we had in the Eastern Freeway tragedy was conduct that Victorians were appalled by, and what police officers and the director of public prosecutions found was there wasn’t an offence that fit that behaviour. So they drew back to the old common law offence that hadn’t been used for a long time … There was very little guidance on how to apply it, what sentence to apply and there was disappointment, particularly from Lynette Taylor’s husband, Stuart Schulz, in relation to that sentence. He came and saw me, I gave him the commitment that I will not be in a position of just creating a rule for the sake of creating a law.

So we’ve spent a lot of time thinking about what sort of events could be brought into the statute. To give the courts a bit more guidance … This is not designed to target low-level offensive general behaviour. In Victoria we have very high thresholds for offensive language, offensive behaviour … [It is for] such a high level where everyone pretty much agrees that that is just outrageous, and there should be some consequences for that.

The new offence will apply to the conduct of any person in a place where their behaviour can be seen or heard publicly. It will also require an accused person to know, or that a reasonable person would have known, that their conduct was grossly offensive. Being intoxicated or using only indecent, obscene or profane language will be excluded from the offence.

Opposition leader Matthew Guy and shadow attorney general Michael O’Brien support the bill, so it will easily pass parliament.

The law also includes safeguards to ensure that the offence is not used to target anyone unfairly, including the director of public prosecutions’ agreement to a charge being brought.