2025-09-01
WA’s “Post and Boast” laws and our right to protest.
By Mark Brogan, former Greens candidate, member of the Climate Crisis Working Group and occasional contributor to the Green Issue (Email: mbrogan556@gmail.com)
"Post and Boast" laws are a recent legislative development in Australia. Proponents claim that they are aimed at addressing the problem of individuals sharing videos and images of their criminal acts on social media platforms to gain notoriety or social approval.[1] Post and boast laws have also been justified in the context of live streaming of homicides and acts of racial or religious hatred such as the Christchurch Mosque attack in 2019.[2]
At their core, "Post and Boast" laws criminalise the act of disseminating material (including videos, photos, and text) that depicts conduct constituting an offence, with the explicit purpose of increasing the reputation or notoriety of a person involved, boasting about the conduct, glorifying it, or encouraging others to engage in similar behaviour. While the specific wording and scope can vary slightly between Australian states and territories that have enacted “post and boast” laws[3] the underlying intent remains consistent and is based on the perceived need to:[4]
- Prevent the glorification of crime: Proponents of “Post and Boast” laws claim that offenders often post videos to gain "clout," notoriety, or admiration within certain online communities, effectively turning their crimes into a warped form of entertainment.
- Prevent re-traumatisation of victims: The sharing of first-person videos depicting crimes can be deeply distressing and re-traumatising for victims.
- Discourage copycat behaviour: Proponents argue that streamed and uploaded authentic crime videos and images promote "copycat" offending.
- Deter crime: By introducing specific penalties for posting and boasting, governments aim to deter individuals from engaging in this behaviour, adding an additional consequence beyond the original crime.
- Address community safety and public outcry: By criminalising online dissemination of videos and images depicting crimes being committed, “Post and Boast” laws respond to public outrage and send a clear message that offending behaviour is unacceptable and will not be tolerated.
However, critics and civil liberties advocates raise important objections to the breadth and potential "chilling effect" of “Post and Boast" laws. Critics argue that laws:
- Are often vague and involve overreach: The terms "glorify," "boast," or "increase notoriety" can be subjective and open to broad interpretation. This vagueness could lead to unintentional criminalisation of speech or discourage individuals from sharing content for fear of falling foul of the law, even if their intent is benign.
- Exercise a chilling effect on the freedoms of free speech association: Critics argue that the existence of such laws, particularly with severe penalties and the potential for third-party liability, could lead to a "chilling effect" where individuals self-censor their online activities to avoid any perceived risk of prosecution, even for content that might otherwise be legitimate or protected speech. This could impact satirical content, commentary on social issues, or even legitimate reporting if the line between "glorifying" and "documenting" becomes blurred.
- Amount to a disproportionate response: Critics suggest that existing laws related to public nuisance, incitement, or even simply using the footage as evidence for the original crime, might be sufficient. They also argue that focusing on "post and boast" distracts from addressing the underlying causes of youth crime. Further for lesser offending, penalties involving long jail terms are inappropriate.
- Involve harmful impacts on whistleblowing and documentation: While most laws include exemptions for journalistic or educational purposes, concerns remain about how these exemptions will be interpreted and applied. Could a legitimate citizen journalist documenting a crime, or an individual exposing wrongdoing, be inadvertently caught by these laws if their content is perceived to "glorify" the act by some?
- Focus on Symptom, Not Cause: Critics contend that “Post and Boast” laws address a symptom (online boasting) rather than the root causes of criminal behaviour, particularly among young people. They argue that punitive measures like "Post and Boast" laws are less effective than social interventions and support programs in addressing youth crime.[5]
Scope of proposed WA law
The Bill currently before the WA Parliament aims to amend the Criminal Code for a new category of offences, namely, “Post and Boast” offences. In common with equivalent laws in other States, WA’s proposed ‘Post and Boast’ laws aim to discourage and criminalize the sharing of content depicting criminal behaviour via posting on social media and/or streaming. According to the Attorney General, Dr Tony Butti, offences covered by the WA Bill include:
- assaults;
- stealing and robbery;
- property damage;
- dangerous or reckless driving;
- racial harassment and inciting racial hatred; and
- Nazi symbols and salutes.[6]
The choice of words used by Butti in explaining the scope of the new law is significant. On first pass, the list of offences seems reasonable. However, on closer examination, anyone documenting or disseminating video or images of protest actions will be at risk, if the Government of the day views these actions as actually or potentially unlawful. How this might happen is not transparent from reading the Bill. Section 221H defines the scope of application with opaque references to Chapters of the Criminal Code. Review of these Chapters shows application of the law to unlawful assemblies, criminal damage and “any offence prescribed by regulations.” [7] Importantly, even if the offence for which a post and boast charge has been made results in no prosecution or conviction, the person sharing a video, image or text of the offence may still be prosecuted and convicted of an offence.[8]
Exclusions are limited. Section 2221J of the Bill says that sharing of material for legitimate purposes like reporting news and current affairs reports, complaining or warning about criminal conduct, or for genuine artistic or satirical purposes will not be penalised. There is no exemption for documentation of the exercise of the democratic right to protest.
Buti’s explanation makes no reference to protests nor the likelihood that third party content depicting protest events could be criminalised by the application of post and boast laws. In such contexts, post and boast laws can conflict with freedom of expression and association. They can also deter citizen reporting in the public interest and the protection of the human rights of protesters, through documentation of protester/police interactions.
Being charged and convicted of a “post and boast” offence will not be dependent on a conviction for the conduct depicted in the circulated material. In other words an individual un-connected with the offence who makes a recording, can be charged with an offence under the Act. Hence a bystander who films an incident and then shares it via social media or streaming could face charges. The offence will also apply to people who repost the material. Consequently, people who repost a post that is not lawful under WA’s new post and boast law, could also be charged with an offence.
Penalties for convictions under the proposed post and boast criminal code amendments are severe. The maximum penalty for an offence under Section221I is three (3) years jail.[9] Failure to comply with a revocation order attracts a penalty of 12 months jail and a fine of $12000. For each day of non-compliance an additional fee of $200 applies.[10]
Drawing upon a variety of evidence, including academic legal advice and evidence of how equivalent laws have operated in other states, Greens MLCs have argued for the Bill to be referred to the Legislative Council’s Legislation Committee for review. At the time of writing this article, the Bill is listed as an item of business of the Legislation Committee.[11] The Greens representative on the Committee is Tim Clifford MLC. Independently, Conservation Council of WA Executive Director, Matt Roberts, has called for the protection of protest actions from application of the proposed law.[12]
Overreach and the wrongful application of ‘post and boast’ laws
Touted as a counter measure to the glorification of serious and often violent crime, abuse of WA’s “post and boast” law through application to protest actions is a clear risk.
WA’s proposed ‘post and boast’ law could address a loophole in the current law that has allowed protest actions until now to be documented without committing an offence.
This risk is not purely hypothetical. Recent case studies show the potential for overreach and wrongful application of the proposed law is real unless the Bill is amended.
From ‘aiding and abetting’ to ‘post and boast’: Extinction Rebellion’s Woodside Protest
In 2021, Extinction Rebellion protesters drew in erasable chalk paint message on pavement opposing Woodside’s Scarborough gas project. One of the protesters, Rosa Hicks, recorded the action on a smartphone.[13] The action took place within view of the Woodside building. Police prosecutors alleged that Hick’s recording of the protest amounted to ‘aiding and abetting’ of the crime of criminal damage. In January 2022, the case against Hicks was thrown out by Magistrate Matthew Holgate, because it had ‘no legal basis.’
The new law addresses the problem of ‘no legal basis.’ In prosecuting a protester for recording acts of ‘criminal damage,’ the WA Government will now be able to prosecute using amendments to the Criminal Code i.e. Criminal Code Amendment (Post and Boast Offence) Bill 2025, s.221I
The significance of what the Government was attempting to do, was not wasted on Hick’s lawyer, Anthony Eyers, who said that Hick’s prosecution set a bad precedent by criminalising the act of being near protest actions.
“It’s the thin end of the wedge,” Eyers said. “If these prosecutions are allowed to stand, they will invariably generate precedents affecting fundamental freedom of expression and freedom of movement, and association.”[14]
To successfully defend against a charge under s221I, the defence needs to prove that dissemination was for a genuine scientific, educational, academic, artistic, satirical or entertainment purpose. Alternatively, the person disseminating must be a journalist[15] or establish that the recording was in the public interest.[16] Citizen documenters are not journalists and whether a public interest defence could be successfully mounted is unknown.
Could the net include the mainstream media as well?: the Disrupt Burrub Hub Protest case
When Disrupt Burrup Hub protesters staged a protest outside the home of CEO Meg O’Neill in August 2023, the protest and arrests of protesters were recorded by the ABC.[17] In response, the WA Premier wrote to the Chair of the ABC claiming that “Wittingly or unwittingly, the ABC was complicit” in offences being carried out. This begs the question of whether the Bill if enacted could be used to stifle media reporting of protest actions.
Section 221J of the Bill appears to provide some comfort at least as far as professional journalists and news publishers are concerned. Specifically, section 221J (1) b provides a defence to journalists who record and disseminate material. But with push back from Government of the kind employed by the WA Premier, the mainstream media might succumb to the chilling effect of the legislation and abandon reporting of some protest actions.
Failure to comply with a move on order: Gaza protest action
A protester wearing an objectionable symbol at a recent Gaza rally in Forrest Place was challenged by police. The protester moved on without an arrest being made. Was the symbol illegal? Was the police response appropriate? The incident was captured on smart phones by other protesters to create a record of what many protesters regarded as wrongful police harassment.
In principle, if the person to whom the move on notice had been issued, had not moved on, they could have been charged for failing to obey an order from police. At this point any dissemination of recorded video would become an offence under the proposed new law.
Lawful protests are dynamic. Permitted content creation and dissemination could quickly become unlawful due to an act as simple as someone failing to comply with a move on order.
It is not all about glorification: recording and sharing protects the human rights of individuals exercising the citizen’s right of dissent
Citizen recorded images and video at protests protects the rights of protesters by ensuring a documentary record of their treatment at the hands of police. The clear intent of recording and sharing in this instance was not to boast but protect the affected individual’s right to justice and the accountability of police.
Citizen dissemination of protests via social media or livestreaming are also acts of freedom of expression and association, rights thought be protected under common law. They are mostly not made to boast about or lionise breaking the law. Commonly, protest videos are made to communicate the cause, substantive content such as speeches, and crowd engagement. A problem with the proposed Bill is that almost any depiction of a protest action that is disseminated via social media or live streaming could be the focus of allegations of boasting leading to the mischievous application of this law.
Fixing loopholes in the proposed WA law to protect the right to protest
In conclusion, WA’s "Post and Boast" Bill if enacted in its current form, could adversely impact the right to protest by exposing anyone recording and disseminating protest content to the risk of prosecution, three years jail and a hefty fine. While the Bill is publicly claimed to be aimed at specific type of harmful online behaviour that most people would agree are repugnant, its scope of application is broader, raising questions about it’s potential to restrict legitimate forms of expression and create a chilling effect on free speech.
It is conceivable that in its public statements, the Cook Government has not been comprehensive of all its motivations in pursuing ‘Post and Boast’ laws. The Bill could fix a loophole in policing protests that has been frustrating to the WA Government – its powerlessness to suppress dissemination of depictions of protest actions rooted in citizen opposition to Government policy, particularly on climate and carbon pollution.
The intent to gain notoriety or boast about criminal acts is different from legitimate political commentary, artistic expression, and genuine reporting, which elsewhere are typically afforded protection under free speech principles. The documentation of protest actions by citizen journalists and advocates is almost never undertaken for notoriety or boastful reasons, but to communicate protest aims, metrics such as turnout and to protect the rights of protesters.
An amendment to the proposed law that would protect protesters from overreach and wrongful conviction, would be to expand the scope of exclusion[18] to protect the dissemination of a recording, image or text made in the context of the exercise of the democratic right to dissent.
Post and boast laws should not be used to suppress social media dissemination of citizen dissent against the actions of governments and corporations. Such dissent is a sacred right of citizens in a democracy. In this sense the application of the law to protest actions involves misuse and should be prevented by exclusionary provisions. Those exclusionary provisions should carve out the operation of the law from the reporting or documenting of lawful citizen actions of political dissent, i.e. the right to protest. Such actions are also meant to be protected by rights of freedom of expression and association that exist in common law.
ENDNOTES
[1] Elbob & Stephenson Lawyers. (2025). Victoria Post and Boast Laws 2025: New Social Media Penalties. Retrieved from: https://easlegal.com.au/victorias-post-and-boast-laws-2025-new-social-m…
[2] Wikipedia. (n.d.). Christchurch mosque shootings. Retrieved from: https://en.wikipedia.org/w/index.php?title=Christchurch_mosque_shooting…
[3] Post and boast has been legislated in Queensland, New South Wales, Victoria, and the Northern Territory. A Western Australian Bill is currently before Parliament. Vide Criminal Code Amendment (Post and Boast Offence) Bill 2025. Retrieved from: https://www.parliament.wa.gov.au/parliament/bills.nsf/BillProgressPopup…
[4] There are numerous articles on the rationale for post and boast laws. Vide Google. Gemini 2.5 Flash. Prompt: Explain the nature and derivation of 'Post and Boast' laws
[5] Ibid.
[6] WA Government. (2025). Post and boast laws to crack down on ‘criminfluencers.’ Retrieved from: https://www.wa.gov.au/government/media-statements/Cook%20Labor%20Govern…
[7] Criminal Code Amendment (Post and Bost Offence0 Bill 2025. Section221H. p.4
[8] Ibid., Section 221I (4) p.6
[9] Ibid., p.5
[10] Ibid Section221L, p.9
[11] Parliament of Western Australia. (2025). Criminal Code Amendment (Post and Boast Offences) Bill 2025. Retrieved from:- Criminal Code Amendment (Post and Boast Offences) Bill 2025
[12] Bucci, N. (2025). Post and boast laws aim to stop young Australians glorifying crimes. Will they drive them deeper into a ‘a failing justice system’. The Guardian 16 August 2025. Retrieved from: https://www.theguardian.com/australia-news/2025/aug/16/post-and-boast-l…
[13] Kurmelovs, R. (2022). Extinction Rebellion activist has chalk message case thrown out by Perth magistrate. Thu Guardian. 12 January 2022. Retrieved from:- https://www.theguardian.com/environment/2022/jan/12/extinction-rebellio…
[14] Kurmelovs, R. (2022). Extinction Rebellion activist has chalk message case thrown out by Perth magistrate. The Guardian. 12 January 2022. Retrieved from: https://www.theguardian.com/environment/2022/jan/12/extinction-rebellio…
[15] S.221J(b)
[16] S221J(f)
[17] Johnson, K. (2024). Gerard Mazza fined for involvement in protest at home of Woodside's CEO Meg O'Neill. ABC Nes. Retrieved from: https://www.abc.net.au/news/2025-02-24/gerard-mazza-fined-protest-meg-o…
[18] S. 221J (1)(a)
Header photo: Palestine rally and march, Perth, 24th August
[Opinions expressed are those of the author and not official policy of Greens WA]