10 September 2026

Mr GAFFNEY (Mersey) - Mr President, I rise to speak upon the Sentencing Amendment (Publication of Criminal Activity) Bill 2026. This proposal represents yet another broadening of the aggravating factors that should, or in this case must, be taken into consideration by the courts in determining the sentencing of a crime. I find myself in two minds regarding the bill. On the one hand, the government is clearly setting out a position on what it has described as a concerning trend and aiming to deter would-be offenders who might seek notoriety. On the other hand, I find myself sceptical regarding the value and the appropriateness of a blanket requirement for posting and boasting to be an aggravating factor for consideration by the court.

Mr President, I will begin by noting the role that the legislature plays in determining the bounds within which the judiciary may impose sentences. It is inherent to the role of the judiciary in our system of law that they are not active in their creation or imposition of will. The judiciary interprets and applies the law - no more than this. In this instance, the law in question is a Sentencing Act 1997, the act designed to cohesively guide sentencing and impose sentencing procedures, requirements and boundaries as seen fit by the elected representatives of the state.

Indeed, it is worth noting the purposes of the principal act, as in section 3. To paraphrase, it is to consolidate Tasmania's sentencing process, promote the protection of the community as a primary consideration in sentencing offenders, promote consistency, fair procedures in ordinary crimes, special procedures, and for those who breach their sentences, prevent crime and promote respect for the law through deterrence, rehabilitation and denunciation, promote public understanding of sentencing, set out the objectives of sentencing, and recognise the interests of victims.

I will start with the positives in this proposal. In light of the aforementioned purpose of the principle act, it is a positive that the legislation is an attempt to protect the community, to clarify the position of the legislature when it comes to publishing criminal acts, and to protect victims, denounce and deter crimes. When looking to the aims of sentencing - punishment, deterrence, rehabilitation, denunciation and community protection - the rationale and justification for the proposal fits almost every aim to a varying extent. The only aim it fails to address, or from some perspectives outright opposes, is the aim of rehabilitation.
It is important to recognise that many of the aims of sentencing are embodied in this law, but it is important to recognise the impact it risks having on rehabilitative outcomes, as well as the excess weight it might give to the more retributive aims of sentencing: punishment, deterrence and denunciation. By requiring the judiciary to give weight to certain published crimes as mandatory aggravating factors, the legislature is emphasising these retributive aims. It wants to punish harder, deter and denounce more. Indeed, this has been stated outright by many of the proponents of the legislation in this place and the other.

That is not to say that the legislation is unfit or inappropriate. I'm simply painting the intention of the government in the broader picture that is sentencing priorities. A legislature must be mindful when forcing a judiciary to see facts or factors that it does not inappropriately overreach, trivialise or otherwise reduce the role of the judge in sentencing. If it is not, it risks reducing their ability to effectively interpret and apply the law. In this case, the legislation aims to send a message to those who post crimes with an intent to brag, intimidate or shame their victims.

It's worth noting that the current proposal imposes a mandatory aggravating factor on the broadest possible range of crimes. In doing so, it risks overreach, as well as looking as if it is equating lesser crimes with greater crimes. By imposing such a sentencing factor on all crimes, it reduces the flexibility of the judiciary to impose aggravating factors as it sees appropriate and necessary.

To my mind, a large portion of sentencing, sentencing process and practices and outcomes in the criminal process rely upon public perception. Indeed, this is recognised in the Tasmanian Sentencing Guidelines, as well as in the purpose of the act. I quote section 3(f) '[To] promote public understanding of sentencing practices and procedures'. It is also well recognised in both jurisprudence and literature on sentencing.

How perpetrators of crimes are sentenced, what is taken into account in their sentencing and the penalty they receive are important. Very often, judgements are made publicly available. Additionally, it is serious and valuable information for communities.

In light of this, the minimum requirements for what must be considered, as set out by the government through the principal act, are also important. It is important, even if judges can already consider these things, that the public sees that the government and the legislature are taking its concerns and needs seriously, actively shaping the law to meet their current needs or wants. Changes to sentencing procedure allow that perception to be developed.

On that note, to read how the Tasmania Law Reform Institute consultation submission outlined how 'post and boast' actions may already be used for sentencing as an aggravating factor, in that regard, one finds oneself questioning the purpose of the legislation in practicality and questioning why the government appears so intent on presenting it as a practical measure more so than an attempt to provide improved public perception of the criminal justice process. To my mind, the bill is as much, if not more, an attempt to achieve the latter.

Additionally, it's worth noting that this is an election promise. While I would argue that this does not provide a mandate for members in this place to vote for it, it does provide a means

with which to gauge its popularity and, by extension, its importance to the general public. Of course, it would be remiss not to also note that this election promise was made in an election in which the Tasmanian Liberal government was exceedingly likely to achieve a minority government. This win only counts for so much, and just because they went to an election and made this promise does not mean they got elected upon it. But nevertheless, it is a factor worth considering.

I would also note that simply because the government, in its excitement to get re-elected, put out various ideas, proposals and promises, some of which conflict with one another, it does not mean that they are appropriate ideas that should be gone ahead with. We see this in the no new taxes promise: one day it is no new taxes, the next day we see the government promising a levy, the next we find out that they're going ahead with that levy with no planning whatsoever.

I remain concerned that a government making myriad promises in an election it is already likely to win is not an appropriate justification to implement each of those promises - especially when the government is made aware that those promises are either poor ideas or in need of serious amendments to ensure that they work as intended.

To bring my contribution directly back to this legislation, I do have my concerns about how it is to be implemented and whether its potential impact has been fully fleshed out, or if it's simply more legislation singularly based off an election promise.
A recurring theme across the submissions - which have been well garnered by the members who have already spoken - that have been critical of this legislation is concerns with the blanket operation of aggravating factors requirements. By putting requirements on sentencing rather than creating a separate crime, the government takes a cudgel to the matter. As I've noted, this approach treats lesser crimes equivalent to greater crimes when it comes to involving the 'post and boast' factor into the sentencing process. It's worth noting that other jurisdictions do not use such a process but instead favour imposing 'post and boast' penalties on specific crimes only.

What this avoids is the risk of 'over sentencing' someone for a lesser crime simply for the fact that they posted it. This in turn risks trivialising and diminishing the role and perception of the aggravating factor, as well as potentially marginalising disadvantaged groups. By increasing sentences on all crimes, including those lesser crimes, we risk hurting and over-penalising those groups and demographics who might instead better from diversion, lighter penalties and a more rehabilitative system. In this sense, the proposal misses the mark entirely on rehabilitation. Rather, it risks undermining rehabilitative systems for crimes if they involve 'post and boast'.

A similar concern arises from many discussions on this proposal: that it is too complex, may not provide increases to sentencing as advertised and may not create a deterrence effect as intended. The Tasmania Law Reform Institute noted that the bill, in deviating from other jurisdictions, fails to guarantee that sentences will be higher, as intended. It also suffers complexity and lacks an evidence base, while the sentencing change may not even deter or reduce propensity for criminals to 'post and boast'. I quote:

Research has shown that certainty of detection and punishment (absolute deterrence) is a greater deterrent than the severity of the punishment (marginal deterrence), and that increasing the severity of punishment has little deterrent impact on crime.

As such, I find myself concerned that the bill will not achieve its intended purpose and will not appropriately address the measure it attempts to solve. I also remain unsure as to why we have deviated from actions of other jurisdictions in this space. It is not a requirement that we do conform to the norm; of course, in many ways it's good to push the boundaries and innovate, but I'm unsure as to the rationale for this bill and how this approach will benefit and not harm. Nonetheless, it is a statement of parliamentary intention and represents to the general public an effort to solve and address this measure.

I appreciate the work of the government in this space and the review provided by consulting bodies, as well as members in this place and other. I look forward to further Committee debate and speeches from members as I'm still uncertain of my final determination on this legislation; however, after listening to the contributions so far, my views are becoming much clearer.