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House of Assembly - Fifty-First Parliament, Second Session (51-2)
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STATUTES AMENDMENT (PUBLIC ORDER OFFENCES) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 21 November 2007. Page 1805.)

Mrs REDMOND (Heysen) (16:16): It is my pleasure to indicate that I am the lead speaker—indeed, probably the only speaker—for the opposition in relation to this bill which, of course, goes hand in glove with the so-called bikie control order bill that we dealt with earlier this week. Happily for the house, this bill is considerably simpler and a lot more straightforward than the earlier bill, and I therefore do not expect the house will be delayed very long, notwithstanding that I am not on any sort of time limit.

The Hon. M.J. Atkinson: Unless I misbehave.

Mrs REDMOND: Unless, of course, the Attorney misbehaves. Even I would struggle to speak for five hours on this bill, given that it is three pages long, or some such amazing amount of pages.

The Hon. M.J. Atkinson: Number of pages.

Mrs REDMOND: Number of pages. It is not 'amount'; the Attorney is absolutely correct. The bill introduces two new offences into the Criminal Law Consolidation Act and one new offence into the Summary Offences Act. I think that, on any reading of them, members of the public would agree that it is appropriate to insert the sort of offences that are being put into those acts by this bill. Whilst they appear quite straightforward, they do have some interesting little turns in them, and I do want to go through the offences in a little detail in the second reading just to be certain that we are all on the same path.

The offences, although aimed specifically at being a mechanism by which we can target outlaw motorcycle gangs, will not just be addressing outlaw motorcycle gangs and, indeed, anyone who is involved in these activities, which will now be known as 'riot', 'affray' and 'violent disorder', stands to be prosecuted for the offences.

In going through the first one, which is the most serious one (that is the offence of riot), I looked through it fairly carefully to establish just what the elements of the offence will be. They are set out in a quite straightforward way in the bill, but they do have some interesting subclauses that make the interpretation quite interesting.

In relation to the elements of the offence of riot (and it will be quite a serious offence), a basic offence has a maximum penalty of imprisonment for seven years; for an aggravated offence, the maximum penalty is imprisonment for 10 years. So, it is quite a serious offence. It requires that there be 12 or more persons together who use or threaten unlawful violence—and 'violence' is defined differently for 'riot' to the definition that is used in 'affray'—

The Hon. M.J. Atkinson: Different from.

Mrs REDMOND: Different from. Again, the Attorney is absolutely correct, because 'different to' makes no more sense than 'similar from'. It is indeed 'different from'. Violence for the purpose of 'riot' is what I would describe as the broader definition. There is a definition put at the top of the bill, which is applicable to both 'riot' and 'affray', except that in the case of 'affray' there is a restriction on it.

So, for this particular offence of riot 'violence' means 'any violent conduct towards property as well as violent conduct towards persons; and it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct'. So, it is a quite broad definition. I am always doubtful about definitions that use within the definition the term we are seeking to define but, notwithstanding that, I think violence is a concept so generally understood that it would be hard to avoid that. I also note the following provision in subsection (6) under the riot provision:

A person is guilty of riot only if the person intends to use violence or is aware that his or her conduct may be violent.

I want to explore that a little when we go into committee. I note that there is an amendment on the table, so we will be going into committee on this measure. So, we have those elements that there have to be 12 or more persons together; they use or threaten violence, which is broadly defined; and it then has to be for a common purpose. However, another subclause further down allows us to understand that the common purpose can be inferred from conduct, and I think that may overcome one of the potential difficulties in prosecution.

Once you have those elements together (that is, 12 or more persons together; use or threaten unlawful violence; for a common purpose), if their conduct taken together is such as would cause a person of reasonable firmness (that is, not someone who is particularly flighty—

The Hon. M.J. Atkinson: Timorous.

Mrs REDMOND: —timorous or an eggshell, skull type of person) present at the scene to fear for his or her personal safety, the offence occurs. One of the tricks about this legislation is that, although it requires the contemplation of a person present at the scene, the offence does not actually require any such person to be present at the scene, which is a little tautological on first examination. However, I think the intention is that, if a person of reasonable firmness were present at the scene, the behaviour is such that it would cause that person to fear for his or her personal safety and, regardless of whether that person is at the scene, the offence occurs, and it can occur in a public place as well as a private place. So, they are the elements of 'riot'.

'Affray', which is to be incorporated into the Criminal Law Consolidation Act as section 83C, has a similar-sounding definition and very similar elements in some ways, except that 'affray' only necessarily involves a person (so, there does not have to be a group of persons) who uses or threatens unlawful violence towards another. In this case, the definition of 'violence' is the narrower definition, so that in this case it does not include 'violent conduct towards property as well as violent conduct towards persons'. So, I take it that it is restricted to 'violent conduct towards persons' but it is not just restricted to 'conduct causing or intended to cause injury or damage but includes any other violent conduct'.

So, you have at least one person involved—it could be more than one person; it could be two or more—anything, presumably, up to the number of 12, after which it would probably fall into the area of 'riot' under the earlier definition. There does not have to be a common purpose as there is in 'riot', because it might be just one person. If there is more than one person, their conduct taken together is what one looks at. They are using or threatening violence but their threat cannot be by words alone, according to a later subsection. They use or threaten unlawful violence towards another, but again there is a provision that provides that, whilst the person who is, again, of reasonable firmness present at the scene has cause to fear for his or her personal safety, there is no requirement that there actually be such a person, or be likely to be such a person, present at the scene.

The differences, I guess, between this and the earlier offence of riot are, first, that there are fewer people required, that there can be use or threaten, but not by just a verbal threat—not just words alone—and that there is the narrower definition of unlawful violence towards another, but those other elements of the conduct 'is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety', remain the same as in the offence of riot.

The offence carries a lesser penalty of a basic offence of a maximum three years' imprisonment, and an aggravated offence carries a maximum of five years' imprisonment. As with the offence of riot, the offence may be committed in a private or a public place. They are the two offences that are put into the Criminal Law Consolidation Act. Lastly, we have the Summary Offences Act, in which a new offence of violent disorder is inserted. Interestingly, it appears in that act just after assaulting and hindering police provisions in section 6.

This offence requires three or more persons present together to use or threaten, but not necessarily simultaneously, unlawful violence, and it uses the same definition as the broad definition used in riot. Again, once those elements are present, if the conduct of those three or more persons is taken together, the conduct 'is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety'. This offence carries a maximum of two years or $100,000, and, again, it can occur in either a public or a private place. There is also the provision that, if the court is going to impose a penalty of more than two years, the matter of sentencing has to refer to the District Court for the sentence to be imposed.

They are the offences covered by the legislation. I do not intend to keep the house unnecessarily, because I think it was fairly comprehensively covered in the Attorney's second reading explanation. I do have a number of questions in terms of the mechanics of how all this will work. It seems to be relatively straightforward in its intention, and something that I think the ordinary members of the public would be quite happy to see introduced—that where people are gathering and behaving in a manner which is threatening, there will be an ability for the police to charge a particular offence, particularly where groups have gathered. It seems that there is much to be gained from giving our police powers to address that sort of behaviour.

With those few words, I conclude my remarks. I will raise the other matters in committee, which hopefully will not keep us for a long either, since the bill, as I said, is only five pages long; so we should not be delayed unduly in its consideration.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 4 passed.

Clause 5.

Mrs REDMOND: Why has exception been placed in the definition of violence that appears in paragraph (a), which provides the following:

violence means any violent conduct so that—

(a) it includes violent conduct towards property as well as violent conduct towards persons;

That is not the case in section 83C, the affray offence. I am curious as to the reasoning. Why would we not, in the case of an affray offence, include violent conduct towards property as well as towards persons?

The Hon. M.J. ATKINSON: Both a riot or violent disorder include violence towards property. A riot at common law included violence against property, but affray was always a fight between two people that did not involve property.

Mrs REDMOND: I accept that that is the history of it. I just wonder whether there is the potential for a problem to arise in the sense that, if you have less than 12 people, say you have 10 people—

The Hon. M.J. Atkinson: Fewer.

Mrs REDMOND: Fewer than 12 people. If you had 10 people behaving in the same threatening way as would otherwise fit within the offence of riot, it seems to me that, if their threats were directed towards property and they were throwing chairs around and so on but they were not actually aiming at any person, then you are restricting it to either riot, where you need 12 people, or the summary offences provision for violent disorder. I just wonder why there would not be sense in putting the property offence aspect into the affray provision as well.

The Hon. M.J. ATKINSON: Violent disorder is the alternative offence to riot. This legislation is based on New South Wales legislation which is based on the United Kingdom legislation which is based on common law and I suppose that it probably goes back to the Riot Act of 1714 when the government—

Mrs Redmond: Wasn't it 1713?

The Hon. M.J. ATKINSON: I am open to suggestions from members but I think it was 1714. Upon the death of Queen Anne there was a fear that the Tories and the Jacobites would return—with God's blessing, of course—and there was an attempt to ensure that Britain remained Protestant by passing the Riot Act of that year. I would like to add that there is always the offence of criminal damage. We do not want to load up the charge sheet too much.

Mrs REDMOND: Regarding this definition of riot, I just wonder where the number of 12 came from in terms of assessing how many need to be involved. I understand that you have to put a figure on it at some point, but is there any magic or is it simply based on the number that was used in the New South Wales legislation?

More importantly, when it says 'the conduct of them (taken together)', although there is a provision in subsection (2) that the people do not have to use or threaten unlawful violence simultaneously, is it the case that there could be problems with people remaining present at the same time, for instance, if you only have 10 people at any given time and so on? I am curious about how, in practice, this will work for the police in making sure that they keep all their offenders nicely corralled to say, 'Well, there were definitely 12 people there for this event. Even if they weren't all acting simultaneously, we can identify that these 12 people were there at that particular time.'

The Hon. M.J. ATKINSON: I am advised that the Riot Act was 1714.

The CHAIR: I am advised that the Riot Act was 1713.

The Hon. M.J. ATKINSON: It might have been passed by parliament in one year and given the royal assent in another. The Riot Act required 12 people present to read the Riot Act: that was a mob. However, the whole 12 did not need to be rioting; three would do. I am advised that there was a Law Commission of the UK inquiry, and it seemed to them that, for such a serious offence, 'Two's company, three's a crowd.' That seemed a very small number so they put it back up to 12 and returned to 1714.

Mrs REDMOND: Is there not then a risk that we could have a very serious situation but, because there are only 11 people involved—assuming that only 11 were involved and there was never a 12th person—the problem that I see is that it could be just as serious an offence, but what it appears to do is create a circumstance where as the Attorney says the only alternative charge is violent disorder but the penalty is so much lower for the maximum offence.

If you have 11 people behaving in exactly the same way, being just as threatening, the maximum penalty is $10,000 or imprisonment for two years, but if there happens to be 12 of them then it jumps up dramatically. I am concerned about whether that is altogether sensible.

The Hon. M.J. ATKINSON: We had to draw the line somewhere. We have tried to maintain consistency with other English speaking jurisdictions.

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: Indeed. So, the alternative verdict of violent disorder still carries a penalty of two years in prison.

Mrs REDMOND: I have one other question on this riot provision and that is in relation to subsection (6), which is the matter of the intention:

A person is guilty of riot only if the person intends to use violence or is aware that his or her conduct may be violent.

Then subsection (7) goes on to say that that provision does not affect the determination for the persons being present at the same time, so even if only three of them are actually behaving badly. I understand that, but I am a little concerned about whether the intention of subsection (6) is that the innocent, non-active member of the group of nine is not to be found guilty of riot, even if they were there present and charged with the offence.

The Hon. M.J. ATKINSON: The answer is yes, they are necessary for it to be a riot, but they will not be charged with riot. I move:

Page 3, line 21—Delete 'or threatening'

The amendment corrects an error in proposed section 83B (1) of the new offence of riot. The offence of riot is committed where 12 or more people who are present together use or threaten violence for a common purpose and the conduct of them, taken together, is such as would cause a person of reasonable firmness at the scene to fear for his or her personal safety. The offence is committed only by those persons using violence, although other persons threatening violence may be counted towards the 12 persons who must be present.

A person who merely threatens violence in the circumstances described would be guilty of the new offence of violent disorder in part 3 of the bill. Under proposed subsection (8) of the offence of riot, a person charged with that offence may, in the alternative, be found guilty of violent disorder. Inadvertently, the words 'or threatening' were inserted in line 5 of proposed subsection 83B(1), implying that a person who merely threatens violence is guilty of riot. This was not intended. The amendment removes those words bringing the offence into line with the New South Wales and British offences on which it is based.

Mrs REDMOND: I thank the Attorney for that excellent explanation because, until he said that, I could not understand why the words 'or threatening' were being deleted, but I now see that, in the light of the Attorney's answer to my previous question about people not being found guilty and his explanation just given, the proposed amendment makes sense and I will support it.

I have two further questions, the first of which relates to subsection (1) of the provisions regarding affray. The words used are, 'A person who uses or threatens unlawful violence towards another.' That expression 'towards another', does not appear under either the riot or violent disorder offence. So, that made me think when I read it that, in fact, it was necessary to have a person present. But, indeed, further down in subsection (4), as in the subsections dealing with the other offences, there is a provision which states:

No person of reasonable firmness need actually be or be likely to be present at the scene.

It looks to me on the surface as though this is inconsistent with the requirement that there be a threat of unlawful violence towards another. How can there be if no such person is actually present at the scene?

The Hon. M.J. ATKINSON: The third person is notional.

The CHAIR: A notional third person?

Mrs REDMOND: I know that the Attorney enjoys being somewhat cryptic, but I am at a loss to understand which of the people he is referring to as 'the third person' and in what sense the person is 'notional'. I would appreciate a more comprehensive explanation of the difficulty I see with that interpretation.

The Hon. M.J. ATKINSON: The old test used to be 'striking terror into the public', now it is—

Mrs Redmond: Into another person.

The CHAIR: Into a notional person.

The Hon. M.J. ATKINSON: I am sorry, 'into another person'. The definition says that it would cause a person of reasonable firmness to fear for his or her safety, but no such person may be present. They are notional in that sense.

Mrs REDMOND: I think what you are saying is that there must be a person against whom the threats, or whatever, are directed for the offence to occur but that that person could be someone who does not fit the definition of a person of reasonable firmness. Is that the explanation?

The Hon. M.J. ATKINSON: Yes.

Mrs REDMOND: I have one other question on a practical point. Under subsection (7), which is the part that I referred to in my second reading, if there is going to be an imprisonment exceeding two years, the court has to commit the person to the District Court for sentencing. I just wonder how that works in practice, because it presupposes that the magistrate has to determine the appropriate sentence, at least in his own mind, in order to decide to refer it. I want to clarify what that means in terms of how it works in practice.

The Hon. M.J. ATKINSON: I think this happens now in our courts. I recall the pastoralist Tom Brinkworth from the Upper South-East, whose company I have enjoyed on his property—

An honourable member interjecting:

The Hon. M.J. ATKINSON: No.

The CHAIR: Any trees present?

The Hon. M.J. ATKINSON: Yes, there were trees present. There were fish and ducks; it was quite a sylvan scene really.

Mrs Redmond: Bucolic.

The Hon. M.J. ATKINSON: Bucolic; yes, that, too. He was found guilty of environmental offences. The magistrate declared him guilty and then said, 'But the kind of fine you need is one that only the District Court can impose' and sent him up to them. So, yes, the member for Heysen is right: the magistrate would have to form the view that the appropriate sentence would be more than two years.

Amendment carried; clause as amended passed.

Clause 6 passed.

Title passed.

The CHAIR: I think we have some authority about whether it was 1713 or 1714. On 15 June 1715 the Riot Act passed as a result of Jacobite risings. The act enabled a magistrate to order any crowd of 12 or more persons to dispense by reading the proclamation—reading the Riot Act. This reading created great problems in implementation.

Bill reported with amendment.

Third Reading

Bill read a third time and passed.


At 16:51 the house adjourned until Tuesday 4 March 2008 at 11:00.

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