Bills

Summary Offences (Obstruction of Public Places) Amendment Bill

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No. 1. Clause 2, page 2, line 9 clause 2(1)—Delete 'or recklessly'

No. 2. Clause 2, page 2, line 9 clause 2(1)—Delete 'engages in conduct that'

No. 3. Clause 2, page 2, lines 18 and 19 clause 2(3), inserted subsection (1a), Note—Delete 'a relevant entity needed' and substitute 'it was reasonably necessary for a relevant entity'.

Consideration in committee.

Amendment No. 1:

The Hon. C.J. PICTON: I move:

That the Legislative Council's amendment No. 1 be agreed to.

The CHAIR: Member for Heysen, do you wish to speak to those amendments? Minister, do want to speak?

The Hon. C.J. PICTON: No.

Mr TEAGUE: Thanks very much, Chair. I welcome the minister's involvement at this committee stage and see that he has drawn the short straw. I hope that whatever I am putting—

The Hon. C.J. Picton interjecting:

Mr TEAGUE: Well, I am grateful for that indication and trust that we might be able to deal with what is really somewhat concerning about what has transpired in another place. In dealing with amendment No. 1, we see that what has happened in another place is that a test that has been inserted by way of replacement of an old longstanding, somewhat hackneyed term that was there previously as the test in section 58 for obstruction, being a test of wilfulness, was replaced in the government's bill by a test of intentional or reckless conduct. In other words, if a person was intentionally or recklessly engaging in the relevant conduct, then the offence is made out.

In response to a question about this by the Law Society in the course of the last week or so—questions that were provided last week by the Law Society to the Attorney—I note that the Attorney has advised the Law Society that the wording of the offence was changed, and I am quoting here:

The wording of the offence was changed as part of an exercise to update the drafting and to ensure that it properly targets conduct that should be captured by the offence.

Which is true. I think that is a succinct statement of what has occurred. The bill replaced the old test of wilfulness with the new test of intentionally or recklessly. Just so that is complete and understood, and I can address some analogies that are on the statute book for precisely that kind of transition over time, from wilful to intentional or reckless, we are dealing with circumstances of knowledge of different kinds.

Intent requires knowledge of the likelihood of the outcome and also deliberateness as to that outcome. Recklessness, similarly, requires knowledge of the likelihood or probability of an outcome but with a requirement that there be conduct proceeding nevertheless. The two go together and, where replacement of a wilful test is concerned, there are numerous examples of where we see both running together.

What has occurred in another place—and it has only happened in the last few hours, and so I certainly invite reflection on this by the government—is the removal of one-half of that new replacement test, with the result that there is now a significant increase in the threshold prior to which the offence will be made out. It is quite serious in terms of a change.

In due course, by reference to particular events that have occurred recently, or by a whole range of scenarios that might be put, it will be important to test whether or not there is a realisation of what has occurred here, this increasing of the threshold before which conduct will satisfy the offence. Can I just make very clear that the status quo, were this amendment from another place to be accepted, will be significantly to increase the threshold compared to the status quo ante wilful test.

Perhaps I will make that good by reference to Lunn's text, Criminal Law South Australia, where 'wilfully' is defined and by reference to authority. We see there the author indicates that wilfully has been held to be proved by recklessness without specific intent—and there is cited some authority from 1989, Gardenal-Williams v R (1989) Tasmanian Reports at page 62. There is also the case of Bergin v Brown, a 1990 case in Victoria published in Victorian Reports at page 888. Importantly, wilful requires proof that:

…the defendant intended to do the particular type of harm in fact done, or that, foreseeing that such harm was likely to be done, he recklessly took the risk that it would be done.

There is the South Australian authority of Taylor v Pope from 1979, reported in the State Reports, volume 21 at page 468, and a range of other authorities to that point.

I might just perhaps at the outset ask the question: if the Attorney's response to the Law Society's question 8—a response given as recently as the weekend—was that the change incorporated in the government's bill in the last sitting week was an opportunity, as I say, to change the wording as part of an exercise to update the drafting and to ensure that it properly targets conduct that should be captured by the offence, has there been an error in the Legislative Council? To the extent that there is inadvertence about that, is the government now committed to restoring that appropriate test, as it was supported by the house?

The Hon. C.J. PICTON: It is not the government's intention to change the scope of the law in terms of what is captured and what is not. The advice that the government has received is that the removal of the words in this case does not narrow the scope of how section 58 currently applies in its present formulation of 'wilfully obstructs.'

Mr TEAGUE: Alright, well, it is good to get that on the record. So there is a view from the government that the test that has now been set is no different from that which previously applied? That is, as I understand, the minister's answer just now.

The Hon. C.J. PICTON: Is that a question?

Mr TEAGUE: In those circumstances, perhaps let me put the question into some context as well and, if the minister does not want to comment on particular events, then fine. In circumstances where someone was to take the kind of action that we have seen in recent weeks, is the government satisfied that the newly formulated test—that is, a requirement that there be intent—will be appropriate to act as a deterrent to such conduct?

The Hon. C.J. PICTON: Yes.

Mr TEAGUE: If that is the case, what has changed between 27 May and, I think, at about 4.30 this morning?

The Hon. C.J. PICTON: As I made clear, it has never been the government's intention in terms of changing the scope in relation to the current scope of 'wilfully obstructs.' Obviously, the government has listened to a number of the submissions and feedback. We have not necessarily agreed with all of them and, of course, this has been the subject of debate and discussion in the other place, and I refer you to the comments of the Attorney there.

We have considered the range of views in relation to the words of section 58(1); we have considered advice that we have received in relation to that. As I mentioned before, we are confident in that advice, in relation to the current scope under the current act, that there will be a consistency in relation to the revised scope under this amendment that was moved in the other place. For those reasons, the government supported the amendment in the other place.

Mr TEAGUE: Yes, I am conscious of that. We can deal with it under the next clause, if you like. But the proposition that I am—

The Hon. C.J. Picton: Let's do that then.

Mr TEAGUE: Well, I am in the hands of the Chair, not the hands of the minister.

The CHAIR: I will allow this one, but the next two will be strictly applied.

Mr TEAGUE: I can indicate that I am not going to be asking questions—at any particular length, anyway—about the other two. The crux of it is right here. In the circumstances, and particularly in light of the minister's answer just now, would the government therefore consider, as a means of addressing the concern I have just raised, a reversion to the words of the act as they presently stand?

The Hon. C.J. PICTON: I think that essentially the question is: will we go back to 'wilfully'? The advice that I have received, and that the Attorney has received, is not to, based on modern legal practice in relation to drafting and interpretation of legislation.

The Hon. D.G. PISONI: My question to the minister is: when was the decision made to support removing 'recklessly' from the bill, and what were the reasons for doing so?

The Hon. C.J. PICTON: I have already outlined the reasons and, consistent with what the Attorney said in relation to questions in the other place regarding the process of legislative drafting and consideration, that is not something that previous governments or previous attorneys have delved into, and nor will this one.

The Hon. D.G. PISONI: You did not actually answer about when a decision was made. Was a decision made after conversations with unions, for example? Did unions make any threats about preselections or funding if you did not support their request to remove 'recklessness' from this bill?

The Hon. C.J. PICTON: I always love the good conspiracy theories from the member for Unley. I refer to my previous answer.

Members interjecting:

The CHAIR: Order, the member for Florey and the member for Unley!

The committee divided on the amendment:

Ayes 23

Noes 11

Majority 12

AYES

NOES

PAIRS

Motion carried.

Amendment No. 2:

The Hon. C.J. PICTON: I move:

That the Legislative Council's amendment No. 2 be agreed to.

Mr TEAGUE: I am conscious I have given an indication. The minister might not have anything further to say, but is there anything that might elucidate a reason for the government's support for the amendment relating to the engaging in conduct, which is also part of the test that we have seen changed?

The Hon. C.J. PICTON: My advice is that consideration of this amendment was that it would assist in relation to the discussion of the previous amendment in helping to ensure that, as to the scope of what the revised legislation would be, it would be not wider or narrower than the original scope in terms of the current construction of the Summary Offences Act.

Motion carried.

Amendment No. 3:

The Hon. C.J. PICTON: I move:

That the Legislative Council's amendment No. 3 be agreed to.

Motion carried.