Victorian’s who engage in “grossly offensive conduct” in public may soon face up to a five-year jail sentence under a proposed Victorian State Government Bill introduced into parliament.

The government announced the new offence to alleviate a gap in penalising gross conduct, which was highlighted by Richard Pusey’s offensive behaviour during the Melbourne Eastern Freeway crash in 2020 involving the death of four serving police officers.

The new law will also effectively enshrine the common law offence of “outraging public decency,” which was used to punish Richard Pusey. The common law had only been reported six times in Australia between 1899 and 1978. The common law offence will be abolished at the establishment of this new law.

How will it apply?

A person commits grossly offensive conduct if:

1. A person engages in conduct that grossly offends community standards of acceptable conduct;
2. That conduct occurs in a public place or is seen or heard by a person in a public place;
3. The person knows, or is reckless as to whether the place is a public place or the conduct engaged is likely to be seen or heard in a public place;
4. The person knows, or a reasonable person would know, the conduct would likely grossly offend community standards of acceptable conduct.

The intention of this offence is to protect the public from the most extreme examples of seriously offensive conduct. The offence will target conduct of a level that meets an indictable offence.

What is a public place?

The legislation notes that public places include (but not limited to): public gardens, parks, government schools, public halls, markets, licensed premiss, football grounds and racecourses.

If the conduct occurs in a private place, for instance inside your home, but it is viewed by someone on a public street, this is excluded from the meaning of “public place.”

When it does not apply?

A person’s conduct does not grossly offend community standards of acceptable conduct just because a person:

• Uses language that is profane
• Uses language that is indecent
• Uses language that is obscene
• Is intoxicated

The legislation also has a complete defence provision. It is a defence if the accused engaged in the conduct reasonably and in good faith:

1. in the performance, exhibition or distribution of an artistic work; or
2. in the course of any statement or publication made, or discussion or debate held, or any other conduct engaged in, for—
3. a genuine political, academic, educational, artistic, religious, cultural or scientific purpose; or
4. a purpose that is in the public interest; or
5. in making or publishing a fair and accurate report of any event or matter of public interest.

The offence will be punishable as an indictable offence and a person could be imprisoned for a maximum of 5 years (level 6 imprisonment).

Although there is cause for concern that this new offence could be interpreted in a wider set of circumstances than original intended by the proposed amendment, the legislation attempts to restrict the overreach of the new offence with a consent requirement. This requirement is triggered before the commencement of every prosecution, requiring the consent of the Director of Public Prosecutions to be granted before any case is started.

This requirement is intended to ensure the offence is used sparingly and a prosecution case 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.