Bills

Summary Offences (Disrespectful Conduct in Court) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 2 August 2018.)

Mr PICTON (Kaurna) (16:59): I indicate that I am the lead speaker on the bill. What a delight it is to be speaking on the disrespectful conduct in court bill in these hallowed halls of parliament where we never see any disrespectful conduct occurring whatsoever! I want the Hansard to note the sarcasm in what I just said. Even in question time today, sadly, we heard some very disrespectful conduct from the environment minister in this place.

The DEPUTY SPEAKER: Member for Kaurna, stay on the bill, please.

Mr PICTON: Yes, I think it is very important to talk about disrespectful conduct in relation to the disrespectful conduct bill.

Mr Pederick: Look inside the glass house.

The DEPUTY SPEAKER: The member for Kaurna will be heard in silence. Continue.

Mr PICTON: Thank you for your protection to prevent this disrespectful conduct from occurring in this place while I am debating. This is not the first time that the now Deputy Premier has introduced this bill, having previously introduced it when she was in opposition. I have to say that, when we were in government and she introduced this bill, we did seek advice at the time from the judiciary. The feedback at the time was that there was no reason for this bill.

There was not an advent of mass disrespect in courts for which judges and judicial officers did not have the ability to deal with within the current laws and rules of the court as apply at the moment; hence, it was not something that we supported in government. Now that the Deputy Premier, the member for Bragg, is in government she has reintroduced this bill. Between those times, I do not think that there has been any great outbreak in disrespectful conduct in our courts since we sought that advice from the judiciary, but she is now the Attorney-General and this is obviously something that she has been keen to push.

However, I do note that it has been on the Notice Paper for some time and keeps getting delayed. We have been told that it is not really a high priority piece of legislation for the government to deal with, which I think highlights the fact that there really is not so much disrespectful conduct in court that necessitates urgent legislation for the government to deal with because the government itself does not regard it as a particularly urgent piece of legislation for us to deal with.

With all that in mind, now that the government is in place, it is obviously a key priority for the Attorney-General now and we are happy to pass this legislation and support it. We will not be opposing this, but we do think that there are very significant questions the Attorney-General needs to answer about this legislation and how it is going to be in place. We will be scrutinising it both in this place and via our shadow attorney-general in the other place.

The Summary Offences (Disrespectful Conduct in Court) Amendment Bill will make it an offence for a person to engage in disrespectful conduct before the court during proceedings. The maximum penalty introduced is $1,250 or three months' imprisonment. I have to say that I am very glad that you, Deputy Speaker, or your colleague the Speaker do not have this power to deal with members in this place if there is disrespectful conduct here because our prisons would be full with at least 47 MPs who would be coming up for some imprisonment at some time. Disrespectful conduct has been defined in the bill as:

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

(b) using offensive or threatening language; and

(c) interfering with or undermining the authority, dignity or performance of the court;

In her second reading explanation, the Attorney-General advised that the bill is heavily based on the New South Wales Courts Legislation Amendment (Disrespectful Behaviour) Act 2016, which introduced an offence of disrespectful behaviour. The Attorney-General also used the New South Wales act to justify the introduction of this bill. However, as pointed out in the Law Society's submission—I note that the Attorney-General was always very keen to note the Law Society's submissions when she was in opposition but perhaps not now that she is in government—there are some very significant differences between the content and context of the South Australian bill and the New South Wales act.

The New South Wales act sets the maximum penalty of 14 days' imprisonment or 10 penalty units, which is $1,100, or both. We are basing this on the New South Wales legislation, where you have 14 days' imprisonment, but we have decided not to double that, not to triple it, but significantly to increase it, from 14 days' up to 90 days' imprisonment in this legislation.

As I said, there does not appear to be any evidence of this mass outbreak of disrespectful conduct in South Australia. In terms of the New South Wales act, a number of people have refused to stand before the judge on the basis of their religious or other beliefs. There is no evidence of that sort of behaviour occurring here, but perhaps the Attorney-General can furnish the house with some statistics. For example, how many people have been held in contempt of court in South Australia each year? This is of course the court's ability to deal with such disrespectful conduct.

We are not saying that respectful conduct is advisable, permissible or to be encouraged. We are saying that the courts have the ability to deal with that at the moment, as they have had for time immemorial through the ability to hold people in contempt of court. I am interested to know how many people are being held in contempt of court. Maybe our gaols are full of people being held in contempt of court because of this outbreak of disrespectful behaviour. I would also be very keen to know how many people have refused to stand in court, which is what the Attorney-General is claiming as one of the key reasons to bring in this bill. Is there any other evidence that this is actually a problem? Is there any other evidence she can point to that requires this bill to be put in place?

A further difference between the New South Wales legislation and what the Attorney-General is proposing is that a judge must refer the conduct of the Attorney-General for potential prosecution. It is not clear why that provision has not been carried over into the South Australian bill. I understand that the Attorney-General's Department advised that the penalties for disrespectful conduct within this bill are consistent with the contempt penalties in the Supreme Court and District Court but not in the Magistrates Court, where I understand it is $8,000 or two years' imprisonment, or in the Youth Court, where it is $2,500 or six months' imprisonment for a child or $10,000 or two years' imprisonment for an adult.

However, I am told that further advice from the Attorney-General's office indicates that the definition of 'consistent' has been interpreted to mean—and I am quoting from an email from the Attorney-General's adviser here—

…the power to punish contempt is flexible in the Supreme Court and can include a fine or imprisonment, without expressly setting a maximum or minimum. The penalties contained in the Bill are consistent with the penalties that the Supreme Court may impose, in the sense that the penalties in the Bill sit below the maximum penalties which can be imposed by inferior courts, such as the Magistrates Court or the Youth Court. As such, the maximum penalties in this Bill are lower than any of the maximum penalties which can be imposed by any of the courts for contempt, including the Supreme Court.

That seems to be a very broad-ranging definition of the word 'consistent'. It brings me back to former president Bill Clinton, who had to debate what 'is' means. Here, we have a very peculiar definition of what the word 'consistent' means. Within the language of the Attorney-General's office, 'consistent' means something completely different, but we move on. The Attorney-General might like to provide some comment on how she considers this to be consistent. Using such a definition of the word 'consistent', almost any penalty would be consistent.

The Law Society's submission proposes that an explicit defence provision be included in the bill where a person is physically unable to stand. There may be some benefit in considering whether explicit defence is for a person with a mental disability as well. I would be very keen to hear from the Attorney-General whether she would consider such a defence for somebody who is unable to stand due to a physical or mental disability and, if not, how she considers the bill will not mistreat a person in that situation.

The bill makes no differentiation between minor or more severe and repeated disrespectful behaviour. The penalty is the same. There is no regard for people appearing in court for the first time who have no idea of court processes and procedures and who may be unaware that they are in contempt of court because of their behaviour. The bill ignores the various cultural behaviours which may appear disrespectful even if there is no actual determination or malice, or understanding or appreciation on behalf of those people whom they are trying to be disrespectful.

The Law Society submission also notes that there is no requirement that a person must be warned about their disrespectful behaviour prior to being charged and suggests that such a provision be included. I would be very interested to hear from the Attorney-General why there should be no warning provision in place that somebody should have to get over that hurdle before they are charged with these offences.

Whilst acknowledging that it is unfortunate that sometimes judiciary and court officials are exposed to disrespectful behaviour, the existing laws and rules of the court were more than adequate to deal with such instances without resorting to new criminal penalties. The Law Society submission also said that the courts already have statutory and common law powers to deal with disrespectful behaviour. We can therefore conclude that the proposed amendments are unwarranted and an unnecessary duplication of existing court rules and laws.

We support the bill, but there are these very important questions to answer. There does not appear to be any dramatic reason, statistics or information to suggest that there is an outbreak of disrespectful behaviour before the courts. If there was, the current provisions available to the courts in terms of contempt of court do not deal with that. Secondly, there seem to be some very significant differences between what is being proposed here and the New South Wales legislation.

There seem to be some huge differences between the current provisions for contempt of court and what the provisions are here, particularly in terms of the Magistrates Court and the Youth Court. There seems to be little regard for consideration of people with physical disabilities, no regard for whether there should be a warning in place, and there is a different process in place between what is in place in New South Wales, or how a prosecution should proceed, and what is in place in this bill.

Whilst it is not something we are opposing, we think that there are some very serious questions the Attorney needs to answer. We think that there is not a huge amount of evidence to indicate that this bill is required, and therefore we will be asking a number of questions at the committee stage, both in this house and in the other place.

Mr TEAGUE (Heysen) (17:12): I rise to commend the bill to the house. The bill provides for an amendment to the Summary Offences Act by the introduction of a new part 11A, section 60—Disrespectful conduct in court.

In answer to some of the remarks made by the member for Kaurna just now, this is first and foremost yet another delivery on a commitment made by the new Marshall government. We are doing what we said we would do. We are working on developing a reputation for doing just that and building confidence in the community of South Australia for doing what we say we will do and being good on our commitments, and this is just another example. We have gone about it in an orderly way and, since the bill was introduced in the house on 5 July, it has progressed along with the rest of the very ambitious and practical agenda of the government.

Secondly, I commend the Attorney-General, the Deputy Premier, for her advocacy and support of this reform, stemming from the introduction of this bill, in her capacity in opposition, as a private member's bill in 2016. The Attorney has seen this through from the start and to its fruition, so it is a reform for which the Attorney ought be rightly proud as having led from the beginning all the way through. I note that what appears to be the now somewhat grudging support of the opposition for the bill is welcome. On this side of the house, we are certainly ready, willing and able to get on with enacting it and bringing it into force.

I will address briefly this question of intent and the role this new summary offence will play in the context of the other sanctions available for behaviour of an offensive nature in court. I would say to the member for Kaurna that it is clear on the face of the bill and the definition of 'disrespectful conduct'—and it could not perhaps be any clearer, on my reading—that there is certainly a requirement for an intentional disrespectful act in order to constitute the offence under section 60(1), as it would apply.

Specifically to the member for Kaurna's posited hypothetical about someone who is in a position where they are unable to stand, I suggest that it is disingenuous to suggest that the bill might have any application in those circumstances and note that the definition specifically includes reference to examples, the first of which is a refusal to stand up on being requested to do so by the court. Refusing to stand up does not encompass the inability to do so, and so that is one matter that might be dealt with very quickly.

It may be correct to note that the notion of a summary offence for disrespectful conduct comes in the context of a range of sanctions that are available to the court to deal with inappropriate or offensive behaviour. It perhaps sits on the spectrum between the sanction of a warning, reprimand or removal on the one hand and contempt and proceedings for contempt at the other end of the spectrum.

It is to be noted that the Supreme Court Act 1935, at section 72, provides for the court to set out its own rules in relation to dealing with contempt. It does so in chapter 14 of the rules. Clearly, court rules 301 to 306 have set out how it will go about dealing with contempt in the face of the court, whether inside the courtroom or outside. So much is clear. The new summary offence of disrespectful conduct is intended to operate as a complement to those powers and, in a practical way, operate to recognise that civil and respectful behaviour is required in our courts and that it will not be tolerated if offensive behaviour ensues.

The member for Kaurna referred to submissions made about the necessity for an offence of this nature to be introduced and referred to questions as to whether or not there was a great and urgent need immediately to deal with constant and ongoing disrespectful conduct in our courts. With respect to the member for Kaurna, I observe that that is really not the point. The matter is one of ensuring that, so far as those who interact with our courts are concerned, in the course of dealings with civil society generally we make clear in a public way that we as a community will not tolerate disrespectful conduct and that an offence is there, if necessary, to recognise that fact.

There is another practical issue that this may serve to overcome. That is that the genesis of contempt of court goes back a very long way and indeed exists as a means by which the court can go about vindicating its authority. It has raised over the long history of the jurisprudence a question as to whether or not in circumstances of contempt the contemnor must purge their contempt before they will be further heard by the court.

Lord Denning had something to say about this and the genesis of the notion of contempt in the case of Hadkinson v Hadkinson, a case heard in 1952. He observed that it is a rare event for the court to refuse to hear counsel for a party, but it is nonetheless a matter that the court is clearly bringing into focus in circumstances where it is proceeding for contempt. I note as well that Lord Denning, when making those remarks, observed that the notion of contempt was not a rule of common law but one of canon law that was adopted by the ecclesiastical courts. Those courts adopted a rule that they would not hear a party who had disobeyed their orders.

So there is a history in relation to contempt that means that the bar is inevitably raised to a serious level where contempt is involved, and as a practical matter it may have the effect of disrupting the court's process in circumstances where it may be more appropriate to send a very practical signal to a badly behaved individual who finds themselves before the court by providing a sanction for their disrespectful conduct while not invoking the traditional concept of proceeding for contempt so as to vindicate the authority of the court.

With those remarks, I share the member for Kaurna's desire to see the swift passage of this legislation without further delay, so rather than embark upon further remarks in the course of the afternoon I will leave it there and commend the bill to the house.

Mr CREGAN (Kavel) (17:23): I have listened carefully to the remarks of my colleague the member for Heysen and also to the remarks made by the member for Kaurna, and I, too, rise to speak on the Summary Offences (Disrespectful Conduct in Court) Amendment Bill 2018. The amendment bill introduces a new part 11A to the Summary Offences Act. That part, if passed in this house and the other place, would make it an offence to intentionally engage in disrespectful conduct in court. If made out, the offence would be punishable by a fine of $1,250 or imprisonment for three years.

Nothing in the amendment is intended to fetter the power of the court to make findings of contempt. Certain other amendments are contemplated to give effect to the new offence. The administration of justice depends on trust and confidence in the integrity of the court process. It is particularly important for victims of crime that participants in the court system show respect for that administration. The failure, particularly of an accused person, to show respect for the court process risks compounding the distress earlier suffered by a victim at the time of the offence especially, but not only, for victims of certain offences against the person. Perhaps that is a part answer to the member for Kaurna.

I want to reflect briefly on contempt of court. Contempt in the face of the court is an act which has the tendency to interfere with or undermine the authority, performance or dignity of the courts or those who participate in their proceedings. What is the relationship between this amendment and contempt in the face of the court? Contempt is preserved by this legislation, or by the bill if it becomes legislation. Findings of contempt are infrequently made. This legislation is intended to crystallise an offence to which reference can be made and which may ultimately be used to achieve respectful conduct in court, where necessary.

Examples of contempt include abusing and swearing at a magistrate, filming witnesses with a view to intimidation, prevaricating or refusing to answer questions, refusing to take the oath or give evidence, refusing to leave the court when directed, and disobeying court orders, including a subpoena issued by a court. I point out to the house that there is a difference between rudeness and contempt and, I believe, between rudeness and disrespect. In Ferguson v Walkley, Justice Harper remarked at 36:

It is no offence simply to be angry with the authorities (including, of course, judicial authority). Some people can articulate their anger in measured language that clearly explains their reasons for feeling as they do. Others, especially when their anger is combined with high emotional stress, or alcohol, or other debilitating factors, cannot…

Depending always on all the relevant evidence, it would probably be quite wrong to charge someone with an offence simply because such language was used in anger.

It has been the practice of judges in this state to warn contemnors that their conduct, if they persist in it, will likely give rise to contempt. While the practice of the court is rightly a matter for judges and magistrates, I trust this sensible approach will continue even after this new offence is added to the armoury.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (17:28): I wish to thank members for their contributions to this debate, in particular the members for Heysen and Kavel, and the member for Kaurna on behalf of the opposition. He presented an indication of their view on this matter, although I was not entirely sure whether or not they intend to formally oppose the bill.

Mr Picton: We are not opposing.

The Hon. V.A. CHAPMAN: Thank you. Clarification is sought for some matters. Can I refer to one matter that had been raised—and I am happy to go into committee. The Chief Justice very kindly forwarded to me a copy of the Explanatory Note on the Judicial Process and Participation of Muslims prepared by the Australian National Imams Council (ANIC). It is a very interesting document.

One of the things that I thought I should bring to the attention of the parliament, on the basis of it having been raised in the media coverage of the bill and some commentary made, is how this might target or apply to people from the Muslim community. Under chapter 3 on page 4 of the material, this document confirms that there is no prohibition under Sharia law to facilitate standing up for a magistrate or a judge in court protocols, bowing to a magistrate or judge, or, under the dress code on page 6, providing for a female witness to remove her hijab or burqa. In those three instances, there is no prohibition under Sharia law to facilitate that to occur.

In other words, there is no impediment to someone of the Muslim faith committed to other religious commitments that says they cannot stand, bow or remove their headdress for the purpose of identification. In fact, the document goes on to point out the significance of insisting that there can be no-one accused or evidence be given against a woman under their practices that would impede them from any court process. I thought it was important that I let the parliament know. I thank the Chief Justice for making the provision.

The other matter that has come to my attention is that, although there has not been a glowing response from those consulted to support the need for having this legislation, one of the things that the judge of the Youth Court questioned in her contribution to us—after agreeing that this law should not apply to youths who come before her in relation to criminal matter—is why care and protection cases that come before her should not have the application of this law, because often the parties in that regard are parents versus some government agency and can get highly distressed and emotional and exhibit difficult behaviours. She has sought some indication as to why those cases should be excluded from the application of this law.

These are all matters of interest which I hope will assist in the consideration of this matter. I am aware that a number of questions were raised by the opposition in briefings on this matter, and I have sought responses in relation to a number of them, if they have not been adequately outlined in the briefings provided. Accordingly, I ask that the matter now go into committee.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr PICTON: For the benefit of the committee, I probably have about 10 questions. I am happy to split them up by clauses or we could just push through all of them in clause 1, if people are happy with that.

The CHAIR: We have four clauses, so we will spread the load, if the Attorney is happy.

Mr PICTON: We will push ahead. I am wondering at the outset if the Attorney-General can outline whether there have been any cases that she can provide us with information on where judicial officers have not been able to deal with a particular case under the contempt of court powers that are available to them and hence would require this change in legislation. What are the specific instances that have occurred in South Australia?

The Hon. V.A. CHAPMAN: I think it would be clear that, because we do not have this law in South Australia, this would not be an option for them to be able to pursue. Of course, if there was not a sufficient threshold of behaviour that has occurred—that is, it was not sufficient, in their view, to call the person in for the purposes of a contemptible conduct—then they would not be doing so. At the moment, we have a contempt option and nothing else.

If a judge were hearing a matter and there was constant swearing by a party to the proceedings, yelling from the dock, all sorts of disrespectful conduct on the face of it but not sufficient for contempt proceedings, then we would not know about those cases because, of course, they would not have been progressed. It is possible that there have been cases where contempt has been threatened or warned, but we would not know about whether they are going to be successful or not because they have not occurred. There is not any data on cases that do not exist because at this stage we do not have an option.

Mr PICTON: So there is no information that you can provide on that front. I wonder if you have consulted with the head of the jurisdictions, the head of the courts, to seek their feedback on the bill generally and also on whether they continue to share the concerns about the need for this that they had the last time this was being debated, or whether they have any new desire that this is particularly needed now.

The Hon. V.A. CHAPMAN: Firstly, can I say that, in respect of the consultation on the bill, the Chief Justice of the Supreme Court, the Chief Judge of the District Court, the Chief Magistrate, the senior judge of the Youth Court, the state's courts administrator—that is, of the CAA—the South Australian Bar Association, the Law Society of South Australia, the Legal Services Commission of South Australia, SAPOL and the DPP were involved. I think that the member has already identified some of the issues raised by the Law Society in respect of how it is to apply.

I have referred to the senior judge of the Youth Court raising the question as to why it is not applying to her care and protection cases. That is something that is worth having a look at. I think we were certainly of the view that children are largely represented in relation to criminal cases in the Youth Court, and therefore we had not really considered the question of the care and protection cases, which she quite rightly points out largely relate to adults, unless the parent of the child is a child themselves, which can of course happen on some occasions. We will certainly have a look at that. That is the level of consultation that has been undertaken.

I think the evidence of what has occurred interstate is a worrying trend, hence the need to consider how we might ensure that there is an effective mechanism for management of disrespectful conduct in the absence of it having adequate provision at the moment. I can recall coming into the parliament early after 2002 and the then premier, Mike Rann, had heard of an occasion on Melbourne radio where cats and potentially dogs—

Mr Picton: Did you think that was a good idea?

The Hon. V.A. CHAPMAN: —yes—were going to go into food and that there was a risk that they were going to be used as a meat source, a protein source. The Premier came back to South Australia and said, 'Look, there is a risk this could happen here in our restaurants and we need to consider how we might deal with that, just in case.'

Mr Picton: That's what you've done in this bill.

The Hon. V.A. CHAPMAN: No, that was in a circumstance though where there had not been any identified occasion at all in the other state, just the possibility of it, just a spectre that it might happen. I remember raising at the time that, if there is already a law which says you cannot actually kill an animal, a dog or a cat, for the purposes of human consumption, and there are already several other laws in respect of that, why do we need to have another law which prosecutes the eating of it in a restaurant?

Mr Picton: You're just arguing against your own bill.

The Hon. V.A. CHAPMAN: No, I am just getting to it. He did that within an environment where there was no known case, but of course he persuaded the parliament, probably by the numbers that he had in the lower house, that it was necessary to consider that pre-emptively. Here we not only have examples interstate which we have looked to in order to consider law reform in our own state. This is if it is on its own its way here—and terrorism laws and serious and organised crime laws are ones that come to mind.

We know that the threshold in respect of proving contempt in court, and the seriousness that is attached to that, namely, the capacity to be able to keep people in prison for a very long time, is one which involves taking the prisoner away, going and issuing information to deal with the charging of contempt, the process that goes with that, the holding indefinitely in custody. These are all pretty serious steps to take for a judge. We are providing a summary offence option, a much lower threshold, capacity in definition of what is to be considered disrespectful conduct and that we should do so. That is exactly what we are doing here in this bill.

Mr PICTON: I thank the Attorney-General for basically making my argument for me, comparing it to the eating dogs and cats laws in the almost identical situations where there is a hypothetical risk of something happening. But there is no known evidence of that happening in South Australia, so you are legislating on the risk that something might happen.

My question originally was about what the judicial officers have told her. She said she has consulted with them but did not tell us what they had said. Given that she has not outlined that, could she table the advice that she has received from the judicial officers because I think it is quite important for parliament to know what their views on this are, given that they are the ones who are in this situation and they are the ones who parliament should be hearing from as to whether there is a case for these laws and whether they are appropriate or not.

The Hon. V.A. CHAPMAN: In this instance, those who did respond were not supportive of it, but I remind the house—

Mr Picton: Which ones were they?

The Hon. V.A. CHAPMAN: The Chief Justice and the Chief Magistrate are relevant. In the same category, I might say that, together with the Law Society, I can think of a very significant number of our serious and organised crime and anti-association laws that were strongly opposed by all of the relevant parties. Similarly, there is the legislation to enable detention in terrorism cases, obviously without charge in some instances, both independently and in conjunction with commonwealth laws. These are the sorts of laws that have met with very strong opposition from many people in the legal profession and the judiciary.

Notwithstanding that, former attorneys-general have brought those matters into the parliament and, as the shadow attorney on behalf of the opposition at the time, we consented to a number of them. We argued the point on some of the detail of them, but in general terms we have supported the development of law in respect of those particular areas in the face of trenchant opposition from the judiciary and the legal profession, or some aspects of them. We do not make laws down here entirely just on what the police ask us to do, what lawyers ask us to do, what judges ask us to do—

Mr Picton: Will you table that advice?

The Hon. V.A. CHAPMAN: The member fully knows that, in relation to judicial officers and in relation to departmental advice, we do not. In relation to the Law Society, which is one that did answer, I think you have a copy of their letter, and they make that available publicly; if you do not, we are happy to provide you with a copy of it. However, as some of your questions have copied exactly details and phrases that were used in the Law Society letter, I assume you do have it. I do not recall having anything from SAPOL. I will check that between the houses, but I do not have it in front of me.

Clause passed.