Hansard debates

Sonya KILKENNY (Carrum – Attorney-General, Minister for Planning) (12:06): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Crimes Amendment Bill 2026:

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Crimes Amendment Bill 2026.

In my opinion, the Crimes Amendment Bill 2026, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill seeks to amend the Crimes Act 1958 in relation to the prosecution of serious vilification offences.

Human Rights Issues

Human rights protected by the Charter that are relevant to the Bill

Right to retrospective criminal laws

Section 27 of the Charter provides that a person must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in, and that a penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed.

The Bill amends section 195Q of the Crimes Act 1958 to remove the requirement for the Director of Public Prosecutions’ consent to police prosecutions of serious vilification offences, namely sections 195N(1) and 195O(1) of the Crimes Act, unless the accused is under the age of 18 years. A transitional provision, new section 640C, provides that section 195Q of the Crimes Act as substituted by the Bill applies in relation to an offence against section 195N(1) or 195O(1) irrespective of when the offence is alleged to have been committed. These offences commenced operation on 20 September 2025.

While this provision will amend the consent requirement retrospectively, it does not limit or interfere with section 27 of the Charter. Section 195Q of the Crimes Act is a procedural provision and does not alter the elements or penalties of the offences in sections 195N or 195O of the Crimes Act.

Protection of families and children

Section 17 of the Charter protects the rights of families and children. Section 17(2) recognises the vulnerability of children because of their age, conferring additional rights on them. It is concerned with protecting the ‘best interests of the child’ (Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796 [145]).

While the Bill removes the requirement for Director of Public Prosecutions’ consent to police prosecutions for serious vilification offences alleged to have been perpetrated by adults, section 195Q(b) of the Crimes Act requires Victoria Police to obtain the Director of Public Prosecutions’ consent to charge an accused who is a child (under 18 years of age) with serious vilification. This safeguard promotes the protection of children by ensuring that their unique characteristics and vulnerabilities are considered by the Director of Public Prosecutions before deciding to proceed with a prosecution.

Sonya Kilkenny

Attorney-General