Why the “post and boast” Bill is problematic

By Tom Penglis

Introduction

The Criminal Code Amendment (Post and Boast Offence) Bill 2025 (WA) (the Bill) proposes to criminalise the dissemination of material depicting certain “relevant offences” in various circumstances.

The Bill is highly problematic. It should either be abandoned or, at the very least, substantially amended. This article sets out at a high level some of the issues with the Bill.

The Bill has faced criticism from the Opposition and the crossbench. It has been referred to the Legislation Committee for report by no later than 12 November 2025. Concerningly, however, in a blow to transparency and effective consultation, the Legislation Committee has decided not to receive public submissions.

Separately, the Law Society of Western Australia’s Criminal Law Committee is seeking submissions from members to inform its position on the Bill.

The stated purpose of the Bill is to prevent the glorification of criminal conduct on social media, to send a message that such conduct is unacceptable, and to protect victims from re-traumatisation.

While these aims are, on their face, legitimate, and similar laws have been introduced in other Australian jurisdictions, the Bill goes much further than comparable laws, and there are serious concerns regarding the breadth, severity, efficacy, necessity, and constitutionality of the proposed measures.

The proposed offence

The Bill provides that it is an offence if (see proposed s 22I of The Criminal Code):

1. a person disseminates material;
2. the material depicts conduct that constitutes a ‘relevant offence’;
3. a reasonable person would consider that:
   • (a) the material, or its dissemination, is likely to humiliate, intimidate or victimise a victim of the relevant offence [this limb is of minimal concern];
   • (b) the material, or its dissemination, is likely to be offensive or demeaning to a person or group of persons; or
   • (c) it is likely that the material was disseminated for any of the following purposes:
     • (i) to increase the reputation or notoriety of a person who engaged in the conduct;
     • (ii) to boast of the conduct;
     • (iii) to glorify the conduct; or
     • (iv) to encourage others to engage in the same or similar conduct.

The maximum penalty for the proposed offence is three years’ imprisonment. This would be the most severe penalty for this kind of offence in Australia.

The Bill has some important defences, including where the material is disseminated:

• for a genuine scientific, educational, academic, artistic, literary, satirical or entertainment purpose; or
• by journalists/news publishers; or
• to warn of, complain about or denounce the conduct.
• There is also a defence where the dissemination of the material is in the public interest. The notion of ‘public interest’ is vague and thus it is unclear how this defence would be applied. For example, is it in the public interest for people to ‘repost’ videos on social media of Palestine Action or Disrupt Burrup Hub engaging in direct action activities with the purpose of increasing that group’s reputation? Reasonable minds would surely differ.

Breadth of the provision

The breadth of the Bill means that it criminalises the private dissemination of harmless material. Key definitions in the Bill are overly broad. For example, the Bill defines:

• “relevant offence” to include a wide array of unlawful conduct, ranging from serious crimes to relatively minor (and protest-related) offences such as disorderly behaviour in public, trespass and unlawful assembly (see proposed s 221H(1) of The Criminal Code). The State Government has (thankfully) indicated that it will remove a provisions in the Bill that would permit the executive to prescribe additional “relevant offences” by regulation.
• “disseminate” to include (among other things) communicating by electronic or other means. The Bill does not require that the dissemination be to the public at large; dissemination to a single person suffices (see proposed s 221G of The Criminal Code). This is in stark contrast to analogous legislation in other jurisdictions, which generally requires that the material be “advertised” or “published” to the public or a section of the public, or specifically on social media (see, for example, s 195T(1) of the Crimes Amendment (Performance Crime) Bill 2025 (Vic); s 7 of the Queensland Community Safety Bill 2024 (Qld); s 9 Criminal Code Amendment Act 2024 (NT); s 154K(4) of the Crimes Act 1900 (NSW). South Australia has the broadest current application in this respect, where material is captured if it is “published” by electronic means: see Summary Offences (Prohibition of Publication of Certain Material) Amendment Bill 2025 (SA)).
• “material” to include any object, picture, photograph, film, written or printed matter, data or other thing (see proposed s 221G of The Criminal Code).

The proposed offence captures material depicting conduct that occurs anywhere in the world (see proposed s 221H(2) of The Criminal Code).

The fact that the dissemination of material will be criminalised merely if it is “likely to be offensive … to a person or group of persons” is deeply problematic. For example, ‘disorderly behaviour in public’ includes using insulting or offensive language in a public place / in sight or hearing of a person in a public place (see s 74A(1)(a) of The Criminal Code). A video depicting a person using offensive language in public (and therefore material depicting the offence of ‘disorderly behaviour in public’) is inherently “likely to be offensive to a person”. Does that mean it will be illegal to share stupid (albeit relatively harmless) videos of people saying offensive things in public? Astonishingly, the answer is likely ‘yes’, unless a defence is made out in court. 

To be clear, for this ‘offensive’ limb, the legislative drafters have intentionally used the broader term “person” instead of the defined term “victim” of the ‘relevant offence’ depicted in the material (as they have done with the first limb, which is of far less concern). Accordingly, there is no requirement for the material to be offensive to a victim of a relevant offence – it need only be reasonably likely to be offensive to any person or group of persons. Needless to say, that is an extremely low threshold.

Absurdly, in some cases, there will be a more serious penalty for disseminating material depicting an offence than for actually committing the offence. For example, disseminating material depicting:

• ‘disorderly behaviour in public’, and which satisfies one of the three limbs above, will carry a maximum penalty of three-years’ imprisonment, despite the maximum penalty for ‘disorderly behaviour in public’ being a fine of only $6,000 (see s 74A(2) of The Criminal Code).
• ‘trespass’, and which satisfies one of the three limbs above, will carry a maximum penalty of three years’ imprisonment, whereas the maximum penalty for ‘standard’ trespass is 12 months imprisonment and a fine of $12,000 (see s 70A(2) of The Criminal Code). One would think that the penalty for trespass should be higher than the penalty for sharing a video that is (e.g.) “likely to be offensive to a person” and which depicts a person trespassing. 

Infringing on the implied freedom of political communication

Arguably the most serious issue with the Bill is its obvious infringement on the constitutionally implied freedom of political communication. There can be no doubt that this Bill will likely have a chilling effect on free speech in Western Australia.

The implied freedom of political communication is a limit on legislative competence at all levels of government (see, eg, Unions NSW v NSW (2019) 264 CLR 595). Legislation that unjustifiably infringes this freedom is constitutionally invalid (see, eg, Brown v Tasmania (2017) 261 CLR 328 (Brown)).

The High Court has recognised that political communication encompasses “all speech relevant to the development of political opinion on the whole range of issues which an intelligent citizen should think about,” (Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 123 (Mason CJ, Toohey and Gaudron JJ) and that protests have historically played a vital role in bringing about political and legislative change (Brown, [33] (Kiefel CJ, Keane and Bell JJ)).

Peaceful civil disobedience has long been used as a means of effecting social change. Such civil disobedience is often viewed positively in retrospect, despite being viewed controversially or negatively by contemporaries – see for example, women’s suffrage movements, labour rights movements throughout history, and the US civil rights movement.

Associate Professor Murray Wesson (University of Western Australia) has written a critical analysis of the Bill, which is not accessible online. Associate Professor Wesson has also made comments to on the Bill in the media – see, eg, ABC radio interview.

The Bill’s broad definition of “relevant offence”, “dissemination” and “material” means that it would capture the sharing of material depicting protests or other political events that involve minor criminal conduct, such as trespass, ‘disorderly behaviour in public’ (including using offensive language in public) and ‘unlawful assembly’. Associate Professor Wesson notes, for example, an individual sharing footage of a protest in a private messaging group, where the protest involved a trespass, may be caught by the offence. The Bill places the onus on individuals to make difficult assessments about such matters as:

• whether the material they wish to share involves a “relevant offence”;
• whether the material is “likely to be offensive to a person or group of persons”; and
• whether their purpose in sharing it might be construed as increasing the reputation of any person engaging in the conduct, or encouraging similar conduct.

The constitutional implications are significant. As noted by Associate Professor Wesson, the Bill’s burden on political communication is not trivial; it is potentially substantial, given the breadth of relevant offences, the low threshold for dissemination, and the severity of the penalty. I would add that the “offensiveness” limb substantially ‘widens the net’ of material that will be captured by this new offence.

The structured proportionality test applied by the High Court requires (among other things) that a law burdening political communication be suitable, necessary, and adequate in its balance (McCloy v New South Wales (2015) 257 CLR 178, [2] (French CJ, Kiefel, Bell and Keane JJ)). While the Bill’s aims may be legitimate, its means are not the least restrictive available. Again, as noted by Associate Professor Wesson there are “obvious and compelling alternatives” that would be less restrictive of political communication, such as limiting the offence to dissemination of material to the public or a section of the public, or restricting the scope of relevant offences to more serious criminal conduct. The Bill’s failure to adopt such alternatives suggests that it may not withstand an almost certain constitutional challenge.

The Bill is not evidence-based

Criminal justice policy should be grounded in empirical evidence demonstrating its necessity and likely effectiveness. The Bill fails this test. The State Government has not offered any evidence that the creation of a new offence targeting the dissemination of material depicting criminal conduct will deter offending or reduce the incidence of such conduct being publicised online.

Peter Collins, Director of Legal Services at the Aboriginal Legal Service of Western Australia (ALSWA), has said that the Bill will have a disproportionate impact on First Nations people (especially young people, who are already heavily overrepresented in our criminal justice system). Mr Collins also highlighted that WA Police conceded there is “limited evidence” the problem of “posting and boasting” is widespread in Western Australia.

The experience of other jurisdictions is instructive. The Law Institute of Victoria (LIV) described similar (but far narrower) laws as “superfluous and unnecessary,” noting that existing offences already carry significant penalties and that boasting or publicising offending can already be considered at sentencing as an aggravating factor. The LIV warned that such laws are likely to “slow down justice, increase the complexity within the judicial system, and will not make the community safer.” The Law Society of New South Wales similarly opposed the creation of “performance crime” offences, arguing that they add unnecessary complexity to an already intricate criminal law framework, were unnecessary and would not be effective.

The LIV has cautioned against the implementation of analogous laws “not substantiated by empirical evidence,” observing that there is no proof that similar laws in other states have been effective in deterring youth crime or the online posting of criminal conduct. What the research does suggest, however, is that early and lengthy incarceration of young people can increase the risk of further involvement in the criminal justice system and so does not promote community safety.

The Victorian Aboriginal Legal Service (VALS) has been particularly critical of the Victorian “post and boast” laws, describing them as “irresponsible and ill-informed” and highlighting the lack of consultation, evidence, and investment in prevention and early intervention. VALS notes that children’s brains are not fully developed and that punitive responses are unlikely to deter the attention-seeking behaviour that underpins much of the conduct targeted by these laws.

The Aboriginal Legal Service (NSW/ACT) has stated that recent law changes, including the introduction of “posting and boasting” offences, have contributed to record high rates of Aboriginal incarceration, particularly on remand, despite falling crime rates. These laws have not been shown to prevent crime, but if anything have contributed to increasing the number of children and young people in custody, along with the negative attendant consequences.

The Bill goes much further and carries a higher penalty than the analogous laws in NSW and Victoria, such that the impact on people at-risk of offending will undoubtedly be more pronounced. Indeed, the Law Society of New South Wales stated that proposed amendments to the comparably narrow NSW Bill to include serious indicatable offences (as in the Bill) would “dramatically widen the impact of the negative aspects” of the NSW Bill.

More information on this aspect of community concerns with the Bill can be found in this National Indigenous Times article.

Conclusion

The Bill represents a significant and troubling departure from principles of proportionality, evidence-based policy, and respect for fundamental rights. Its broad scope risks criminalising conduct far removed from its stated aims, while its lack of empirical foundation raises serious doubts about its likely effectiveness. Most concerningly, the Bill threatens to infringe upon the implied constitutional freedom of political communication, which are fundamental to our democracy.

The experience of other jurisdictions to date demonstrates that such laws do not make communities safer, but instead increase incarceration rates, particularly among young people and First Nations people, and undermine efforts at rehabilitation and early intervention.

The Legislation Committee should consult publicly and engage meaningfully with stakeholders, including legal and human rights organisations, Aboriginal community-controlled organisations, and youth justice experts, to develop a response that is proportionate, evidence-based, and respectful of fundamental rights. If it did, I have no doubt that it would be urged to recommend that the Bill either be abandoned or, at the very least, substantially amended.