Political Theatrics or Legal Necessity?

Richard Pusey’s conduct in the Eastern Freeway accident sparked public outrage. This led to the Victorian Parliament legislating the offence of grossly offensive public conduct. By analysing parliamentary rhetoric, existing legal alternatives and the provision's inherently vague drafting, this article argues how Parliament’s actions exemplify reactive law-making, driven by political exploitation, rather than principled legal reform. While this offence modernises legislation, its timing, severity, and ambiguous scope demonstrate its penal populist roots that undermine the rule of law principles.

II PENAL POPULISM AND EMOTIONAL DRAFTING

A DEFINING PENAL POPULISM IN SECTION 195K'S CREATION

S 195K exhibits penal populism characteristics, having been created through punitive, atypical and emotionally charged political rhetoric over demonstrable legal necessity. Politicians across five common law nations, including Australia, tended to claim that many notorious incidents were preventable if the government had implemented stricter measures beforehand. Also, they exploited ‘high-profile‘ tragedies by advocating for ‘ever-harsher‘ penalties, displaying punitive populism. Chifflet and Tudor claim that Pusey’s infamous conduct outraged Australians, resulting in a subsequent emotive political reaction that fuelled penal populist measures. Parliamentarians’ condemnatory language against Pusey discards rational causation, like an offender’s possible social disintegration. Instead, an ‘individualist discourse portraying criminals as selfish, immoral beings’ follows, reflecting populist strategies, according to Campos. This emotional focus overshadows a reasoned and objective legal assessment, instrumentalising the public’s emotions. 

B FEAR-BASED POLITICS AND ELECTORAL MOTIVATIONS

Notably, Victoria applied fear-based politics. Here, quick solutions like raising imprisonment terms are considered hard-line responses, rather than addressing the underlying factors that caused criminal behaviour. Following Freiberg, this represents a core penal populism strategy for electoral gain. Politicians prioritised denunciation and appeared ‘tough on crime’, appealing to the public’s support for stricter sentences, instead of addressing a demonstrable legal necessity. This mirrors situations where political calculations, like fulfilling ‘election promises’ despite rational criticism and reacting to public fear over evidence, drive legislation drafting instead of principled legal reform. By legislating s 195K, Parliament enabled longer imprisonment terms than previously possible under common law and statute. Essentially, they catered to public outrage from a notorious tragedy for electoral gain. 

C MODERNISING OUTDATED LAW?

Conversely, it may be argued that s 195K provided ‘a modern response’ that captured the outliers in offences relating to extreme public offensiveness. Replacing the ‘archaic, unclear’ common law offence of ‘outraging public decency’ with a modern and codified provision aligns with rule of law principles favouring accessibility and clarity. However, this perspective understates the punitive political rhetoric surrounding this legislation, as s 195K directly arose following the Eastern Freeway accident. Although s 195K presented modernisation, its timing, the intense focus on one outlying notorious case and the severity of five years imprisonment indicate that its primary motivation was populist appeasement. Furthermore, s 195K targeted the perceived inadequacy of three months’ imprisonment, rather than the absence of an applicable offence. This concern could have been addressed through amendments to existing s 17(1)(d), rather than legislating a broadly defined indictable offence.

III QUESTIONABLE NECESSITY AND REDUNDANCY

A FOCUS ON PUNISHMENT OVER LEGISLATIVE GAPS

Beyond its populist origins, s 195K’s practical necessity is questionable, as existing laws already addressed its targeted conduct, implying that its creation was driven by a desire for harsher penalties rather than filling a genuine legislative void. S 195K was driven by the perceived inadequacy of potential punishment under existing laws, not an absence of applicable law itself. Legislating harsh penalties primarily to appeal to the public’s punitive stance, after mediatised tragedies, aligns with penal populism principles. It creates a pretentious perception of justice from the politicians’ perspective. Judge Wraight sentenced Pusey successfully under the existing outraging public decency offence. Similarly, Liberty Victoria and Chifflet and Tudor argue that s 195K’s creation was ‘unnecessary’, given the overlaps with s 17(1)(d). This focus on the severity of the penalty over functional necessity displays populist strategies. 

B MISINFORMED PUBLIC SENTIMENT AND JUDICIAL REALITY

The Melbourne Criminology Study demonstrated that the apparent perception of judges being overly lenient and the public seeking stricter sentences is misinformed. 67% of the 471 participants gave more lenient sentences than the sitting judges, across four cases, after being presented with the relevant facts. This undermines s 195K’s implied assumption that a punitive public sentiment justifies populist legislation. Moreover, it supports that the offence’s reliance on ‘community standards’ may, in reality, misrepresent informed community views. 

C INEFFECTIVE DENUNCIATION?

The offence arguably serves a valuable purpose of symbolic denunciation, signalling society's condemnation of extreme public conduct in a way that amending a lesser summary offence could not adequately achieve. Creating a specific indictable crime substantially marks Pusey’s conduct as reprehensible. However, this symbolic function is undermined by s 195K’s ambiguity and populist origins. This obscures what precise conduct warrants such a strong denunciation. Effective denunciation and deterrence rely on legal certainty, which the offence lacks. A clearly defined aggravated summary offence would provide greater symbolic clarity without resorting to the potentially excessive and uncertain usage of s 195K. Ultimately, it implies that the legislators’ punitive appeasement trumped principled legal reform.

IV VAGUENESS OF SECTION 195K AND ITS DETRIMENT TO LEGAL PRINCIPLES

A MANUFACTURED GAPS AND UNDERMINING THE RULE OF LAW

The inherent vagueness in the drafting of section 195K creates significant challenges for legal certainty and consistent application, thereby undermining the rule of law and the legislation's objectives of denunciation and deterrence. S 195K’s vague drafting implies that the Victorian Parliament manufactured a non-existent gap in law that serves little purpose beyond blame-shifting and symbolic penal populism. For electoral gains and crude perceptions of increased justice, penal populists exploit ‘misinformed’ public opinions to fuel punitive measures, notwithstanding that their effectiveness in ‘reducing crime is … far from certain’. Liberty Victoria further condemns s 195K’s reliance on ‘amorphous community standards’. This subjectivity introduces significant vagueness, undermining the rule of law principles of certainty and predictability. Furthermore, this ambiguity risks inconsistent applications of law, leading to unjust judicial outcomes. Queen highlighted the difficulty in defining the scope of broad terms like ‘risky behaviour’ and the precise threshold where such conduct justifies criminal culpability. Similarly, s 195K does not remotely define the specific conduct it intends to prohibit, the relevant thresholds and how it differentiates from the aforementioned overlaps with s 17(1)(d). Contrastingly, Chifflet and Tudor argue that judges would reasonably interpret gross violations of this standard alongside parliament’s intent and with the accompanying objective tests. 

B COMPARATIVE LEGISLATIVE CLARITY AND OFFENCE’S AMBIGUITY

Interstate jurisdictions specify the elements of offensive conduct that will lead to prosecution, unlike s 195K, which is overly open to subjective interpretation. Clarity in legislation serves a valuable purpose in prospectively denouncing and minimising harm. S 195K(1)(d) punishes conduct that a reasonable person would likely deem to outrageously violate community standards. It carries a five-year imprisonment term and excludes intoxication and profanity. Comparatively, NSW’s largely similar offence of ‘offensive conduct’ in public only carries a maximum imprisonment term of three months. Likewise, it excludes offensive language. This implies that s 195K’s application is intended to be restricted to more serious offences. However, Victorian legislators neither specified the community standard thresholds nor indicated how to determine when a violation occurs on the spectrum of offensive behaviour. Comparatively, Queensland connected ‘offensiveness’ with elements of disorderly, violent and threatening conduct, including verbal profanities and disturbing public peace. Although s 6 intends to cover lower profile and relatively minor ‘public nuisance’ offences than s 195K, it indicates elements that define prohibited behaviour. In turn, Queensland is more effective than NSW’s and Victorian legislations in prospectively denouncing and preventing deplorable conduct like Pusey’s. This is because people have clear expectations of specific behaviours the community deems unacceptable. 

C INEFFECTIVENESS, JUDICIAL CONFUSION AND POPULIST INTENT

S 195K’s ill-defined scope implies penal populism characteristics since it satisfies politicians’ desire to be perceived as ‘tough on crime’ and appears ineffective in either denunciation or deterrence. It serves little valuable purpose beyond publicity, especially given that sentencing in Victoria must only occur for purposes like denunciation and deterrence. Victoria’s s 195K differentiates from Queensland’s s 6 through increased imprisonment limits and a notable absence of elements that constitute grossly offensive public conduct. Consequently, it increases confusion for the public and the judiciary in recognising what acts are punishable. Disagreements about its unclear scope allow for potential personal influence from a judge’s beliefs, leading to unjust outcomes. Harper J emphasises the difficulties courts face when capturing ‘contemporary standards’. Here, Harper J applied the Butterworths and Macquarie dictionaries to provide meaning to ‘indecent’ and ‘obscene’ in terms of a religious context. ‘Grossly offensive’ does not substantially differ from the aforementioned terms, which are used by a largely similar offence under s 17(1)(b). Legislators have chosen to draft s 195K differently, without providing any clear differentiating factor. This opens possibilities for judges with varying religious and cultural backgrounds to rule differently, undermining principles of uniform and consistent application in the rule of law. Clear laws deter harm. S 195K leaves unanswered questions about its subjective application and effectiveness in enforcing denunciation and deterrence. Its genuine purpose appears to be more aligned with winning public support and a penal populist strategy for electoral gain.

V CONCLUSION

Ultimately, s 195K demonstrates how emotive appeals and populist pressures can override rational legislative reform and fundamental rule-of-law principles. It creates vague and redundant criminal offences with little demonstrable benefit beyond creating a political theatre for electoral gains. The lesson is that effective criminal law requires measured deliberation that resists the appeals of populist quick fixes. This is particularly applicable when existing legal frameworks can be appropriately modified to address legitimate concerns. True legal reform would have clarified and strengthened existing offences rather than capitulating to a perception that the public demands ever-harsher penalties. Moving forward, a return to evidence-based criminal justice policies is needed. Legal clarity, proportionality and genuine community protection must be prioritised, instead of self-serving responses to isolated incidents, to better serve Victoria's justice system. 

BIBLIOGRAPHY

1. Articles/Books/Reports

Campos, Albert Sales, Punitive Populism or Social Policy? (Report, May 2023) <https://www.institutmetropoli.cat/wp-content/uploads/2024/02/punitive-populism-or-social-policy.pdf>

Chifflet, Pascale and Steven Tudor, ‘Victoria’s New Offence of Grossly Offensive Public Conduct’ (2023) 47(1) Criminal Law Journal 42

Faunce, Thomas and Brendan Siles, ‘High Court of Australia and HIV/AIDS Disease Criminalisation: Aubrey v The Queen and Zaburoni v The Queen’ (2017) 25 Journal of Law and Medicine 52

Freiberg, Arie, ‘The Four Pillars of Justice: A Review Essay’ (2003) 36(2) Australian and New Zealand Journal of Criminology 223

Gelb, Karen, More Myths and Misconceptions (Report, September 2008) <https://www.sentencingcouncil.vic.gov.au/publications/more-myths-and-misconceptions>

Liberty Victoria, Criminalising Grossly Offensive Conduct in Public: The Crimes Legislation Amendment Bill 2022 (Vic) (Report, 28 July 2022)

Roberts, Julian V et al, Penal Populism and Public Opinion (Oxford University Press, 1st ed, 2002)

Ryan, Mick, ‘Penal Populism and Public Opinion: Lessons from Five Countries’ (2003) 35(1) Ottawa Law Review 159

Sentencing Advisory Council, Public Opinion about Sentencing: A Research Overview (Report, 13 December 2018) <https://www.sentencingcouncil.vic.gov.au/publications/public-opinion-about-sentencing-research-overview>

Warner, Kate, ‘Sentencing Review 2011–2012’ (2012) 36 Criminal Law Journal 384

2. Cases

Director of Public Prosecutions v Pusey [2021] VCC 478

Pell v Council of Trustees of National Gallery of Victoria [1998] 2 VR 391

WCB v The Queen (2010) 29 VR 483

3. Legislation

Crime Legislation Amendment Act 2022 (Vic)

Crimes Act 1958 (Vic)

Sentencing Act 1991 (Vic)

Summary Offences Act 1966 (Vic)

Summary Offences Act 1988 (NSW)

Summary Offences Act 2005 (Qld)

4. Other

Explanatory Memorandum, Crime Legislation Amendment Bill 2022 (Vic)

Symes, Jaclyn, 'New Laws Criminalising Grossly Offensive Public Conduct' (Media Release 220621, State Government of Victoria, 22 June 2022) <https://www.premier.vic.gov.au/new-laws-criminalising-grossly-offensive-public-conduct> Victoria, Parliamentary Debates, Legislative Council, 18 August 2022