31 May 2016

2nd Reading Speech

The Hon. ADAM SEARLE ( 21:04 ): I lead for the Labor Opposition in this place on the Courts Legislation Amendment (Disrespectful Behaviour) Bill 2016. The Labor Opposition will not oppose the bill, but we regard it as a second-rate stunt that will have no practical impact other than to fill up the statute book. The object of the bill is said to be to make it a summary offence to engage in behaviour that is disrespectful according to practice and convention in a number of jurisdictions. Specifically those jurisdictions are: the Supreme Court, the Land and Environment Court, the District Court, the Local Court and coronial proceedings. This new summary offence will have a maximum penalty of 14 days imprisonment or 10 penalty units, currently $550, or both.

To breach the proposed section, the person must be an accused or defendant or party to proceedings in the court or called to give evidence in relation to coronial proceedings. It extends to someone who is appearing in or being represented in coronial proceedings or who has been called to give evidence. The offending behaviour must be intentional and must have occurred during the proceedings. They do not have to have intended to be disrespectful but they must intend to do the actions or behaviours that are found to have been disrespectful. The behaviour that is criminalised is behaviour that is disrespectful to the proceedings or presiding official according to established practice and convention.

There are a number of provisions which would normally be regarded as restrictive and as a means to limit the too-frequent use of the offence. Proceedings must be brought only by a person or a member of a class of persons authorised, in writing, by the Secretary of the Department of Justice. Proceedings can only be commenced with the authorisation of the Attorney General. There are also evidentiary provisions about transcripts or audio or video recordings of the proceedings concerned. Judicial officers cannot be required to give evidence in prosecutions.

The bill says it does not affect any power with respect to contempt. It also provides that a person cannot be prosecuted for both this offence and contempt for the same behaviour, which at least avoids the double jeopardy point. In analysing the legislation it is clear that “disrespectful behaviour” according to established court practice and convention is extraordinarily wide. It should be a basic principle of the criminal law that its provisions are clear. This bill is not. If the Government really wants to criminalise the behaviour of defendants who are not willing to stand up in court then it should do so simply and directly rather than through this overly wide provision—and of course it should do so only if it is satisfied that there are no other ways of dealing with the problem.

The maximum penalty for the offence is quite ridiculous. It seems reasonably obvious that this offence is aimed at people charged in the main with terrorism offences. They are, by definition, very serious offences with serious penalties. An extra 14 days for these types of offenders would be fairly meaningless and will have no real impact. The provision in relation to requiring the Attorney’s consent is very strange indeed. There is no evidence that this legislation is really needed. It all seems to stem from a particular incident in the District Court that occurred in about November 2015. We have seen a report in the media that the matter was referred to the Attorney General by the judge concerned. I understand that in that case the Attorney sought and received the advice of the Solicitor General. I assume the Solicitor General found there was no attempt to prosecute, not that the Government has released any evidence. I ask the Parliamentary Secretary in reply to just confirm those matters. The Government proceeds in this legislation by arguing that the current laws are not adequate.

Apart from that one example to which I have referred, in my understanding it is quite clear that judicial officers, whether magistrates or judges, have proved quite adequate within the inherent powers of courts to control their proceedings to deal with challenges to the authority of the courts and to the judges that falls short of contempt. Apart from being dealt with for contempt when it reaches that level, persons can be removed from court rooms. In the case of defendants’ inappropriate behaviour they can be held in the cells until they behave themselves. Clearly the attitude of defendants can be considered by courts in the context of contrition and sentencing. It does not take a lot of research to realise the practical implications of this legislation will be extremely limited.

The fact is that the courts of this State have proved they have the resources, skills and temperaments to be able to deal with these matters sensibly and without too much fanfare. I ask the Parliamentary Secretary to confirm whether it is the intention of the Attorney General to delegate to the Solicitor General the Attorney’s role in this matter. That at least would give people a little more comfort that there would be a proper and considered approach to whether to prosecute for this offence if it ever gets to that level. As I said, the Opposition regards these measures as not necessary and of extremely limited practical effect. We will not oppose the bill if the Government intends to proceed, but time will show that its only real effect is just to clutter up the statute books.