Bills

Summary Offences (Disrespectful Conduct in Court) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 5 July 2018.)

The Hon. J.A.W. GARDNER (Morialta—Minister for Education) (17:36): I am very pleased to be able to speak on the Summary Offences (Disrespectful Conduct in Court) Amendment Bill. This is, of course, a piece of legislation that the Attorney-General brought to this house having previously raised a number of matters that are contained in the bill in the House of Assembly in previous years—I believe a couple of years ago as a private member's bill. It has come back to the house in relation to a range of matters, some of which have been brought forward in the public consciousness with respect to matters that have happened in other jurisdictions and some of which, indeed, are matters that have been particularly pertinent in South Australia.

In relation to the offence of disrespectful conduct in court, the offence proposed is to apply to a person who is a party to proceedings before the court—so that is defining who is described here. It would not apply to witnesses who might be called to give evidence; it is not that group. It is not relevant to members of the public who may be present in the gallery of the courtrooms or indeed to people who are within the jurisdiction of the Youth Court. It is a specific group of people, they being parties to the proceedings. This is actually quite an important matter—that it be limited to parties to the proceedings.

There are, of course, a range of measures currently available to judges and magistrates in relation to this matter, if they have issues relating to conduct in court. The judge or the magistrate can of course remove a person from the courtroom for a period of time, they can mute a video link, they can make a note of the behaviour in the court file or they can provide a caution. However, where those measures are used in relation to the behaviour of a witness or a party to proceedings, they can be insufficient to address the disrespectful conduct, whereas the other measures available might be seen as too heavy-handed.

I believe that this bill has the benefit of being able to strike a balance so that penalties are in place that are appropriate for this sort of behaviour, where there is a gap between disrespectful conduct that might be best dealt with through those minor approaches—muting the video link, removing the person from a courtroom for a period of time—and conduct that would fall short of the strict response required, where contempt of court would be the approach. So this is to address the gap in the middle and has appropriate penalties therefor.

We apply a different principle to young people if we are looking at a matter that might restrain the freedom of a young person. That is why I believe the senior judge of the Youth Court has made representation that youths should not be captured by this. Indeed, that is not the government's intent; nor is it captured within the gamut of the bill.

Questions have been raised as to whether the offence would apply to people with disabilities, for example, or other people who might not intentionally demonstrate disrespectful conduct to the court. The Attorney-General has made it very clear that there is no intent for this to capture any person with a physical or mental incapacity who involuntarily engages in conduct which might potentially be viewed as disrespectful according to the usual conventions of the court. That is not conduct that is intended to cause offence and will therefore not be captured by the offence proposed in this bill.

The most obvious example—and it almost goes without saying, but to be extremely clear—is that somebody in a wheelchair is not required to stand. That is an obvious example, but there are many more that have been raised by people who have asked questions. For clarity, we offer advice that any involuntary conduct that would not usually meet the standards of a court would not be captured. People who have raised those questions need have no fear.

We have discussed the existence of contempt laws. We think it is important that the dignity of the courts be preserved, even when some aspects of disrespect that are offered might not meet the standard to justify a finding of contempt. How prevalent is disrespectful conduct or contempt in the court?

The government is advised that the Courts Administration Authority does not maintain formal records on the number or charges or convictions for contempt committed in the face of court. However, obviously there are examples that practitioners have encountered, some of which have had some level of media attention.

There was an example of New South Wales legislation which was described previously, where a similar offence of disrespectful behaviour was introduced in 2015. That legislation was developed in relation to a specific incident involving a Muslim man who refused to stand. It has been asked whether this offence is specifically designed with that religious group in mind. I advise the house that it is not.

The offence applies very broadly to capture any conduct which, in accordance with the general expectations of the community, could be regarded as disrespectful to a court, including refusing to stand up after being requested to do so by the court, using offensive or threatening language and interfering or undermining the authority, dignity or performance of the court.

This is an important and useful piece of legislation that will assist in maintaining the dignity and decorum of our courts so that they can go about their business and discharge their duties for the people of South Australia and the jurisdiction which they serve with all those things upheld. I therefore commend the bill to the house.

Debate adjourned on motion of Mr Picton.