Hansard debates

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Community Safety, Minister for Victims, Minister for Racing) (09:41): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Crimes Amendment (Retail, Fast Food, Hospitality and Transport Worker Harm) Bill 2025:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (Charter), I make this Statement of Compatibility with respect to the Crimes Amendment (Retail, Fast Food, Hospitality and Transport Worker Harm) Bill 2025 (Bill).

In my opinion, the Bill, 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 introduces new offences to specifically address incidents where offenders assault, or threaten to assault, retail, fast food, hospitality and passenger transport workers (applicable customer-facing workers) in connection with the performance of their duties. The Bill also introduces new offences for directing intimidatory, offensive and threatening words and behaviour towards applicable customer-facing workers. In establishing these offences, the Bill delivers on the government’s commitment to better protect these workers from assault and abuse.

The Bill will amend the Crimes Act 1958 (Crimes Act) to introduce a new indictable offence of assaulting and threatening to assault applicable customer-facing workers in connection with the performance of their duties (maximum 5 years imprisonment).

The Bill will amend the Summary Offences Act 1966 (Summary Offences Act) to introduce the following new summary offences:

a. A summary offence of assaulting an applicable customer-facing worker in connection with the worker’s duties (maximum 6 months imprisonment)

b. A summary offence of using without lawful excuse, language that is profane, indecent, obscene, threatening, abusive or insulting or otherwise engaging in conduct that is threatening, indecent, offensive or insulting towards an applicable customer-facing worker in connection with the worker’s duties (maximum 6 months imprisonment).

The Bill also amends section 77 of the Crimes Act (aggravated burglary) to include where a person commits a burglary and uses a vehicle to cause damage to the building for the purpose of gaining entry to that building.

Human Rights Issues

The human rights protected by the Charter that are relevant to the Bill are:

a. right to freedom of expression (section 15)

b. right to freedom of thought, conscience, religion and belief (section 14)

c. right to culture (section 19)

d. right to peaceful assembly and freedom of association (section 16), and right to taking part in public life (section 18)

e. right to liberty and security of the person (section 21)

f. rights in criminal proceedings and right to be presumed innocent until proved guilty according to law (section 25), and

g. the protection against retrospective criminal laws (section 27).

Under section 7(2) of the Charter, rights can be subject to limitations to the extent reasonable in a free and democratic society based on human dignity, equality and freedom and doing so may be necessary to protect and preserve the enjoyment of Charter rights by other members of the community. These factors are discussed below.

a. Right to freedom of expression (section 15)

Section 15(2) of the Charter provides that the right to freedom of expression includes the freedom ‘to seek, receive and impart information and ideas of all kinds’ in a medium chosen by the person. The right does not merely protect favourable or popular expressions, but also protects criticism and protest as well as offensive, disturbing or shocking information or ideas (Sunday Times v United Kingdom (No 2) [1992] 14 EHRR 123) (Handyside v United Kingdom (1976) 1 EHRR 737, [49]).

Section 15(3) of the Charter provides for an internal limitation on the right, which allows freedom of expression to be limited where it is reasonably necessary to do so to respect the rights and reputation of other persons, or for the protection of national security, public order, public health or public morality. It recognises that the right to freedom of expression will often be in conflict with the rights of other people, and with the public good, and so may be subject to clear limits, including lawful restrictions reasonably necessary to protect public order and health. This limitation has been held to extend to ‘laws that enable citizens to engage in their personal and business affairs free from unlawful physical interference to their person or property’ (Magee v Delaney (2012) 39 VR 50). It is a recognition that the right to freedom of expression does not protect all forms of expressive conduct including conduct involving violence, or threats of violence (Magee v Delaney (2012) 39 VR 50).

The Bill limits the right by restricting a person’s ability to impart certain information and ideas through words or conduct that they know, or that a reasonable person would know, is threatening or abusive to workers in connection with the performance of their duties. While the concept of threatening or abusive words and behaviour is well-understood, the new offences are intended to capture both serious conduct of such a magnitude that it meets the standard of an indictable offence, and less serious conduct which meets the standard of a summary offence.

The new offences provide additional protections to applicable customer-facing workers in the retail, hospitality and passenger transport sectors in Victoria who have been impacted by a spike in assaults, threatening conduct and verbal abuse. It is important in a diverse and pluralistic society that such workers can go about their business with the expectation of a safe working environment. Being subjected to assaults, threats, and intimidation can make workplaces feel unsafe and unpredictable, particularly for more vulnerable people. For example, a 2003 national survey of 4,600 members from the Shop, Distributive and Allied Employee’ Association (SDA) found that a shocking 87 percent of workers had experienced abuse from customers in the preceding year, 76 percent had experienced regular verbal abuse over the preceding 12 months while 12.5 percent had suffered physical violence – a 50 per cent jump from a similar survey two years earlier. Such conduct has the potential to harm individual workers but also harms the community by undermining standards of acceptable behaviour and public order. Given how deeply upsetting and harmful to individual human dignity such behaviour can be and how damaging it can be to the functioning of a democratic and pluralistic society, it is appropriate that there be specific offences that prohibit such conduct.

The limitation of the right to freedom of expression that arises is consistent with the Bill’s purpose to protect applicable customer-facing workers from the threatening or abusive words and behaviour, while also ensuring that conduct done reasonably and for legitimate purposes is adequately protected. The applicable customer-facing worker offences clearly target assaults and extreme examples of threatening or abusive words and behaviour. A person will continue to be able to express themselves in such a way that does not cause harm, or that causes a person to feel unsafe. This balances the right of a person to hold and express an opinion and to engage with other members of the community with the rights of applicable customer-facing workers and in doing so protects public order and public morality and the stability of our free and democratic society. I consider these measures to be reasonable and justified in the circumstances.

To be less restrictive, the offences could be cast less broadly - for example, by specifying the exact kinds of threatening or abusive words and behaviour envisaged to be captured, or by stating what community standards of acceptable conduct are. However, this would mean the offences would not be sufficiently flexible to capture unforeseen types of conduct. Additionally, if the Bill articulated specific acts or community standards, the offences would not be adaptable to changing societal attitudes and values. This would mean that the offences could continue to capture conduct that the broader community has come to find tolerable or less offensive – effectively becoming more restrictive over time.

There is no less restrictive way to achieve the purpose of the offences, which is to protect applicable customer-facing workers from threatening or abusive words and behaviour. Any limitation of these rights is balanced with the charter rights contained in section 9 (right to life), section 10 (protection from torture and cruel, inhuman or degrading treatment), section 14 (freedom of thought, conscience, religion and belief), section 18 (taking part in public life), and section 21 (right to liberty and security of person), and is reasonable and justified under section 7(2) of the charter.

b. Right to freedom of thought, conscience, religion and belief (section 14), right to culture (section 19), right to peaceful assembly and freedom of association (section 16), and right to taking part in public life (section 18);

Section 14 of the Charter provides that every person has the right to freedom of thought, conscience, religion and belief, including to adopt the religion or belief of their choice and to demonstrate their religious belief in public or private. It provides that a person must not be coerced or restrained in a way that limits their freedom of religion or belief in worship, observance, practice or teaching. Historically, the right to have or adopt a religion or belief has been held to be absolute and unqualified (Eweida v The United Kingdom (2013) 57 EHRR 8); however, limitations on the right to demonstrate religion or belief have been found to be reasonable and justified (Victorian Electoral Commission [2009] VCAT 2191).

Section 19 of the Charter provides for the right to culture and is based on Article 27 of the International Convention on Civil and Political Rights (ICCPR). This right ensures individuals, in community with others that share their background, can enjoy their culture, declare and practise their religion and use their language. It protects all people with a particular cultural, religious, racial or linguistic background.

Section 16(1) of the Charter protects every person’s right to peaceful assembly, that is to gather intentionally and temporarily for a specific purpose. Section 18(1) of the Charter provides that every person in Victoria has the right to participate in the conduct of public affairs. The UN Human Rights Committee, when commenting on article 25(a) of the ICCPR, considered the right to participate in public life to lie at the core of democratic government.

The Bill could limit these rights where the relevant conduct amounts to a breach of the protections for applicable customer-facing workers contained in the Bill. For example, the Bill prohibits a person from exercising such a right through words or conduct directed towards an applicable customer facing worker in connection with the performance of their duties in a manner that can be objectively considered to be threatening or abusive. The purpose of the limitation is to ensure that applicable customer-facing workers are protected from the harm and distress that result from threatening or abusive words and behaviour in connection with the performance of their duties.

There is no less restrictive way to achieve the purpose of the offences, which is to protect applicable customer-facing workers from threatening or abusive words and behaviour. Any limitation of these rights is balanced with the other rights contained in the Charter. The narrow scope of the Bill, which is targeted at threatening or abusive words and behaviour directed at applicable customer-facing workers in connection with the performance of their duties, means that people who demonstrate these rights in a controversial and even offensive manner may still be able to do so subject to existing laws and as long as they do not do so in a threatening or abusive manner directed at applicable customer-facing workers in connection with the performance of their duties.

The Bill could not be modified to entirely and expressly exempt these rights. Threatening or abusive words and behaviour, without a lawful excuse, cannot be justified because they expose applicable customer-facing workers to harm and undermine the sanctity and dignity of retail workplaces, which need to be maintained for the safety of those workers. The limitations on these rights are reasonable and justified given the potentially significant harm caused by threatening and abusive words and behaviours to applicable customer-facing workers and the broader impacts this can have on the Victorian community and economy.

c. Right to liberty and security of person (section 21)

Section 21 of the charter provides that every person has the right to liberty, and that a person must not be deprived of their liberty, except on grounds, and in accordance with procedures, established by law. Section 21 also provides that every person has the right to security.

The right to liberty needs to be balanced with the right to security, specifically, the community’s right to safety and security, which includes protection from being subject to criminal offending. Although conviction for the new offences may result in the deprivation of liberty, it will only arise because of a sentence imposed after conviction for an offence by an independent court after a fair hearing.

These offences and corresponding penalties apply for conduct directed towards a clearly defined cohort of victims, that is, applicable customer-facing workers in connection with the performance of their duties, where the prosecution proves that the offender knew or was reckless as to whether the victim was an applicable customer-facing worker. Applicable customer-facing workers play a critical role in the Victorian economy and in our community. Every single person in our community relies on these workers every single day to perform their duties for the orderly functioning of our society. In return, applicable customer-facing workers should be able to perform their duties with dignity and respect, and free from harmful threats or abuse. In these circumstances, the establishment of offences that may result in the deprivation of an offender’s liberty is a reasonable and proportionate measure to preserve the right to security of applicable customer-facing workers and maintain public order.

There is no less restrictive way to achieve the purpose of the offences, which is to protect applicable customer-facing workers from threatening or abusive behaviour. Any limitation of these rights is balanced with the other rights contained in the Charter including the right to proper treatment (section 21), right to be promptly brought before a court (section 21(5)), and right to be presumed innocent until proven guilty according to law (section 25(1)).

d. Right in criminal proceedings and right to be presumed innocent until proved guilty according to law (section 25)

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right in section 25(1) is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

The Bill imposes an evidential burden on the accused for the defence of “lawful excuse” for summary offences in which a person directs threatening or abusive words or behaviour towards applicable customer-facing workers. This may appear to limit the right to be presumed innocent until proven guilty according to law. It will be a matter for a court to assess whether the conduct in question had a lawful excuse. The purpose of the evidential burden is to support the proper operation and prosecution of the offences by ensuring that the applicable customer-facing workers are protected from threatening or abusive words or behaviour that is done without a lawful excuse.

Victorian courts have held that the right to be presumed innocent until proven guilty according to law is not limited by the imposition of an evidential burden on the accused (R v DA & GFK [2016] VSCA 325). The defence outlined in the Summary Offences Act 1966 imposes an evidential burden rather than a legal burden. The offences in the Bill do not transfer the legal burden of proof. Once the accused has pointed to evidence of the defence – which will ordinarily be peculiarly within their knowledge – the burden shifts back to the prosecution to prove the essential elements of the offence.

The Bill could leave the onus to raise and disprove this defence with the prosecution, thereby removing the evidential burden from the accused person. However, this would make the offence largely unworkable, as the circumstances listed in the defences are likely to often be within the peculiar knowledge of an accused person, and it is therefore appropriate that the accused should be required to raise or point to evidence that a defence applies.

In these circumstances, and as courts have held, it is reasonable and proportionate to shift the burden of proof to the accused, because only they may know and be able to articulate why their conduct did not breach community standards.

e. Protection from retrospective criminal laws (section 27)

Section 27(1) 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. This reflects the principle, long recognised in criminal law, that there can be no crime and no punishment, other than as established by the law. The Bill protects this right by ensuring that the new offences and the amendment to the existing aggravated burglary offence have prospective application only.

In particular, the expansion of aggravated burglary to capture the use of a vehicle to cause damage to a building to gain entry to that building to commit a burglary includes an express transitional provision to ensure that the new aggravating factor only applies to conduct that allegedly occurs after commencement of the amendment. Existing criminal offences may still be charged to address this conduct in the interim.

Conclusion

I consider that the Bill is compatible with the Charter because, to the extent that some provisions may limit human rights, those limitations are reasonable and demonstrably justified in a free and democratic society.

The Hon Sonya Kilkenny

Attorney-General