Summary Offences (Disrespectful Conduct in Court) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 7 July 2016.)

The Hon. T.R. KENYON: Madam Deputy Speaker, I draw your attention to the state of the house.

A quorum having been formed:

Mr PICTON (Kaurna) (11:04): It is my pleasure to speak again in private members' time on the Summary Offences (Disrespectful Conduct in Court) Amendment Bill 2016. I can tell the house that the government opposes this bill. In our view the new offence of disrespectful conduct in court, as created by the bill, is a completely unnecessary addition to the Summary Offences Act 1953. Disrespectful conduct is defined in the bill as the following:

(a) refusing to stand up after being requested to do so by the court; and

(b) using offensive or threatening language; and

(c) yelling; and

(d) interfering with or undermining the authority, dignity or performance of the court.

The government agrees that it is an unfortunate reality that our courts and judicial officers sometimes have to deal with disrespectful behaviour. However, the examples provided by the opposition in support of the bill offence do not justify the introduction of a new offence. The only examples furnished by the opposition of disrespectful behaviour, that would be covered by their new offence, are that of children in the Youth Court.

We do not think that imprisonment, or a large fine, is an appropriate way to deal with a defendant swearing and using inappropriate language. Disrespect for authority figures is a common hallmark of those young people who find themselves fronting up to the Youth Court, and we have complete confidence in our magistrates and judges to be able to deal with inappropriate language from children, without resorting to imprisonment. The Senior Judge of the Youth Court has advised the government that they do encounter disrespectful behaviour from parents of young offenders in the Youth Court, but she is of the view that the current laws of contempt, and other practical measures, are fully adequate to deal with such persons.

The Hon. Dennis Hood MLC, who has introduced a very similar bill in the other place, gave some further examples that he believed occurred interstate of individuals exhibiting disrespectful behaviour in court. These incidents have involved persons invoking their Islamic religious beliefs as a means of justifying refusing to stand for a judicial officer. This kind of incident has not occurred in this state, luckily, and, if it had, it does not justify the introduction of a new offence to deal with this kind of behaviour, according to our consideration in the government.

The opposition has not demonstrated that there has been an epidemic of these kinds of incidents, such that the new offence is needed, and there is certainly no gap in the law between contempt of court and less serious disrespectful behaviour, such that needs to be addressed with the new criminal offence. The current laws dealing with contempt of court consist of well-established longstanding legal principles and are adequate for members of the judiciary to deal with persons exhibiting serious disrespectful behaviour in their courtrooms.

Contempt of court is a serious offence and it is appropriate that the penalty may include imprisonment. Imprisonment is the most serious punishment available to our criminal justice system and it is important that it is imposed in the appropriate circumstances and is not used as a penalty for minor offences. Behaviour that is disrespectful in the courtroom is obviously something that needs to be strongly discouraged. It is inappropriate to have an offence with a potential penalty of imprisonment for disrespectful behaviour, that is comparatively minor, as compared with contempt of court, as defined in the bill.

Behaviour that does not meet the threshold for contempt of court can be dealt with by the judge or the magistrate using their own discretion and vast reserves of common sense. Persons may be removed from the courtroom for a period of time, their video link may be muted, the judicial officer may make a note of their behaviour on the court file, to ensure that any future judicial officers who deal with that person are aware of the behaviour. They may give the person very firm instructions to behave, or instruct their representative to speak to their client about their behaviour. If a person repeatedly and persistently exhibits disrespectful behaviour, and will not take instruction from the judicial officer, the behaviour is well on the way to satisfying that threshold for contempt proceedings to be commenced.

The government undertook consultation with the judiciary to seek their views on this bill and the responses we received have confirmed the government's view that this offence is unnecessary. The general view was that the current contempt of court laws are adequate for judicial officers to deal with disrespectful behaviour, along with the other practical methods that they use, such as excluding persons from the courtroom.

To conclude, the government has decided to oppose this bill, as the current contempt of court laws are adequate to deal with serious disrespectful behaviour in court, and judicial officers have other means of dealing with more minor disrespectful behaviour, making this new offence unnecessary.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:09): I thank the member for Kaurna for making a contribution and identifying the government's position on this, because clearly it seals the fate of this bill. However, I want to place three things on the record.

One is that, yes, we do have a contempt procedure in our courts that effectively enables judicial officers to have a power of inquiry, as an authority, to be able to manage the procedural fairness within their courts. It is effectively that power that is used. It is not currently an offence at all, and that is exactly what we are trying to do in this bill, to make it an offence. So that is what they have now.

Secondly, within that envelope the concern is that the general disorderly or disruptive behaviour of someone in the courtroom will not, in fact, actually qualify for management as a contempt matter because it does not reach the threshold of what is necessary to satisfy that the behaviour is contemptuous. Of course, in some jurisdictions the power of enforcement is to hold them in prison indefinitely, until they purge their contempt. It is a process that is a management tool that has a high threshold to apply, and that this type of disorderly and disrespectful conduct that we are talking about in this bill could escape.

Whilst the member for Kaurna invites the application of the magistrate or judge to be able to remove the person from the court, the fact is that it is often necessary for that person, especially if they are the defendant, to be in the courtroom to hear the case against them and, of course, to be able to present their own. So, that is an impractical alternate process offered as a way to manage the disrespectful and disorderly conduct, and that is disappointing.

Finally, in respect of the processes themselves, by offering to make this type of behaviour an offence we send a clear message that they can be the subject of a fine or a term of imprisonment, but there will be a fine option available to the judiciary. We think that is a sensible way of dealing with a lot of these cases of lower order disorderly, disruptive and disrespectful conduct. Interstate examples have been used because they have been identified, in litigation relating to them, as exposing this weakness in the current system. Other jurisdictions have acted to deal with that, and we are very disappointed that the state does not deal with that.

We are already facing a tsunami of backlog in our courts of cases awaiting trial. The District Court has been over the front page of the paper with over 600 cases waiting to be allocated a trial date. It is not just irritated defendants who are waiting for their day in court but witnesses, family, relatives of victims and the like who are also often in a state of distress and anger at the delay in the process of the hearing of their case, not to mention the lawyers and judges, who can get a bit touchy about these issues as well.

I make the point that we have a tsunami of a problem on its way, and the most important thing we can do at this stage is to provide our judiciary, in particular, and every other person who works in our courts, a safe workplace free of totally disrespectful and disruptive behaviour by anyone in the courtroom. It is going to be more and more important that we have this instrument.

Nevertheless, I note the government's position. The bill will clearly fail. I thank the Hon. Dennis Hood in the other place, who has contemporaneously introduced his bill and provided the same basis upon which it should be progressed. We will see what happens with that. It might give the opportunity for the government to reflect and consider how helpful this process may be in sending a clear message to those who come into our overcrowded, overworked courtrooms that, when they do come in, finally, to get their day in court, whether they are a victim or a defendant, that orderly behaviour is expected. I commend the bill to the house.

The house divided on the second reading:

Ayes 20

Noes 23

Majority 3

Second reading thus negatived.