Bills
Criminal Code Amendment (Post and Boast Offence) Bill 2025
Second reading
Resumed from 26 June.
Hon Nick Goiran (Leader of the Opposition) (4:15 pm): I rise on behalf of the opposition in my capacity as shadow Attorney General and the lead speaker for the opposition on the Criminal Code Amendment (Post and Boast Offence) Bill 2025. We have before us a relatively small bill consisting of a mere four clauses. Amongst other things, the bill will insert new chapter 26B into our Criminal Code with a view to introducing what might be described as a novel offence in our state. Specifically, it is seeking to target the dissemination of material that depicts certain unlawful conduct for the purpose of glorification, boasting, notoriety or incitement.
One of the curious aspects of this bill is that it only captures some unlawful behaviour whilst it excludes other unlawful behaviour. One of the first questions that the opposition has for the government on this matter is: Why is that so? Why is the government saying that the boasting and glorification of some unlawful behaviour is acceptable, whereas we wish to now outlaw the boasting and glorification of other behaviour?
Interestingly, these post-and-boast offence laws, as they have now become known, have commenced in some other jurisdictions in the nation, particularly in Queensland and the Northern Territory, and we have been advised that legislation of this sort has been introduced into the Victorian jurisdiction and it is anticipated that we will see something along these lines in South Australia later this year.
Interestingly, New South Wales has taken a different approach from those other jurisdictions and what is sought to be done here in Western Australia. The New South Wales legislation specifically looks at those who might be said to be advertising their involvement in motor vehicle theft or break-and-enter offences and treats it as an aggravating factor at the time of sentencing. One might say that the New South Wales jurisdiction has taken a more cautious approach towards this novel type of offending. In particular, I note that the New South Wales Government has agreed to a statutory review of its regime two years after it has commenced. I take the opportunity now to quote from the ministerial media release in New South Wales, published on 22 March last year, in which, amongst other things, the Attorney General in New South Wales said:
The government has also created a 'performance crime' offence in the Crimes Act 1900 (NSW) imposing an additional penalty of two years' imprisonment for people who commit motor vehicle theft or break and enter offences and share material to advertise their involvement in the criminal behaviour.
It is expected these new provisions will come into effect within two weeks and will undergo a statutory review that will take place two years after it commences.
We reasonably expect that New South Wales will be the first jurisdiction to undertake a review of this novel type of offending in around April next year, albeit I hasten to add that its approach is distinct from the other jurisdictions and what is proposed in the bill before us by virtue of it being an aggravating factor at the time of sentencing. Meanwhile, the government in our state has, interestingly, expressly acknowledged in the second reading speech that there is limited evidence that this issue is rife in our state. I take the opportunity to quote directly from the second reading speech of Hon Dan Caddy when he introduced the bill in his capacity as Parliamentary Secretary to the Attorney General, at which time he said the following with respect to the government's consultation with the Western Australia Police Force:
Although the post-and-boast offences in Queensland, New South Wales and the Northern Territory, and those recently introduced in Victoria, were introduced in response to the reported increase in the prevalence of such conduct, the Western Australia Police Force has indicated that while there have been cases of content depicting illegal conduct being posted online in Western Australia, there is limited evidence that the issue is rife. The government wants to keep it that way and send a strong message to the community that this conduct will not be tolerated.
Two issues arise. One is that, by the government's own admission, this is not a major issue in our jurisdiction, as it appears to have been in other places. The government's defence is to say that it would like to keep it that way and that this conduct will not be tolerated, yet the scope of offences captured by this bill will be limited. That goes to my original question: Why has the government taken up a policy that some unlawful behaviour can be boasted about and glorified whereas other behaviour cannot? One might say that this is not the government sending a strong message that this is conduct that will not be tolerated. Nevertheless, it is for the parliamentary secretary to respond to that in the fullness of time in the reply, or otherwise in Committee of the Whole House. Perhaps one might say that this bill is more symbolic than practical. Of course, the government might say that this is more a deterrent measure than anything else. Although the opposition supports the bill's objective, we say that the scope of the bill's application is dubious and the effectiveness of this bill in practice is questionable. Our ultimate question to the government is whether this bill will achieve any meaningful reform, rather than just making headlines.
What is it that this four-clause bill will actually do? As I said earlier, it will introduce a novel offence. There are three essential elements at the heart of this offence: there must be the dissemination of material, it must be material that depicts conduct that constitutes a relevant offence, and this will then be subject to what I might call a reasonable person test. Taking each of those three elements one at a time, the first is the dissemination of material. "Disseminate" is broadly defined in the bill in proposed section 221G. Dissemination of the material can be done by electronic or physical means. It can be done by uploading material to a USB and handing that material to another person or by sending material via a messaging app. In addition, "material" is broadly defined as any object or medium, such as a picture, a film, written content or data or other thing, as well as any thing from which such content can be produced or reproduced. As I said, there are three key elements to this novel offence, the first of which is that there must be dissemination of material as defined in the bill. The second is that the material must constitute conduct that is a relevant offence. It is to be noted that the notion of depicting a relevant offence could potentially include a representation or drawing of conduct that is a relevant offence. I note that the Oxford English Dictionary defines "depict" as "To draw, figure or represent in". The first element is that there must be the dissemination of material, the second element is that the material must depict conduct that is a relevant offence, and the third element is the reasonable person test. By way of explanation, the reasonable person test is that a reasonable person would consider the material that has been disseminated depicting the unlawful relevant offence to be likely to humiliate, intimidate or victimise a victim of the relevant offence or to offend or demean a person or group, or to have been disseminated to boast, glorify, gain notoriety or incite unlawful conduct.
This novel offence is set to carry a maximum penalty of three years imprisonment, which I note the government boasted is the highest of all jurisdictions. I pause at this point simply to note that it is curious that the government, amongst everything else that is being done in this bill, would take the opportunity to boast that the offence is going to attract the largest penalty in the nation. To be clear, the other jurisdictions apply a penalty of two years imprisonment, as I understand it. The government has decided to apply three years imprisonment. Why it is necessary to differ from the other jurisdictions, other than to simply politically boast that WA is being the toughest on this particular issue, is beyond me, given that whether it is a two-year or three-year offence, with all due respect to the government, it is not going to achieve the objective that it is seeking at first instance. Nevertheless, I also note that the bill before us seeks to empower the courts to issue what has been described as rectification notices or rectification orders—that is, to have the material that has been disseminated removed. Failure to remove that material could be punishable by 12 months imprisonment or a fine of up to $12,000. There will no doubt be mixed views in the chamber, which we will hear more about over the course of today, and also in the community.
Very importantly, this bill will enshrine a number of defences. To be quite frank, this is the most important part of the bill. Without these, and particularly proposed section 221J(1)(d), the bill would be unsupportable. That defence states:
(1) It is a defence … to prove that —
…
(d) the material was disseminated to warn of, complain about or denounce the conduct …
For example, if material is disseminated about unlawful behaviour and a person posts about that online and calls it out as unacceptable conduct, they will have a defence to the distribution of that material, and quite rightly so. As I said, in the absence of that defence, amongst others, the bill would be completely unsupportable. This defence is crucial because, amongst other things, it will protect the legitimate community awareness efforts of anyone within the community. Proposed section 221J also outlines several other broad defences. I would probably go so far as to say that the defences are so broad that one might wonder whether anyone will ever be captured by this novel offence. It includes dissemination for educational, artistic, satirical or entertainment purposes. Perhaps the parliamentary secretary can let us know what exactly is intended by "entertainment purpose" and what would make such a purpose genuine. In addition, if the material that is disseminated is done by what is described as a journalist or a news publisher, it will also attract one of these defences.
Debate interrupted, pursuant to standing orders.
(Continued at a later stage of the sitting.)
