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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-03-04 Daily Xml
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STATUTES AMENDMENT (PUBLIC ORDER OFFENCES) BILL

Received from the House of Assembly and read a first time.

Second Reading

The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (18:08): I move:

That this bill be now read a second time.

I seek leave to have the detailed explanation of the bill inserted in Hansard without my reading it.

Leave granted.

The Bill is part of the first phase of the Government's response to offending by Outlaw Motorcycle Gangs (OMCGs) and other criminal groups.

It amends the Summary Offences Act 1953 and the Criminal Law Consolidation Act 1935 to create new statutory offences of riot, affray and violent disorder.

Although these offences will be used against OMCG members who engage in public acts of serious violence, they will also have more general application.

In cases where OMCG members engage in acts of collective violence, for example, public fights with members of rival gangs or others, it is often difficult to secure convictions against those involved because the gang members refuse to co operate with police in any investigation and witnesses are reluctant to give evidence for fear of retribution. Without evidence from either the victims of the violence (gang members) or witnesses, prosecutions for serious offences arising out of these incidents are rarely successful. Often the police are limited to charging an offender with the minor summary offence of disorderly or offensive conduct or language that carries a maximum penalty of three months imprisonment.

As well as placing members of the public at risk of injury and property at risk of damage, these incidents create public fear and enhance the reputations for violence of OMCGs, reputations that are central to their effectiveness as criminal organisations.

The Bill contains three offences that deal with this type of criminal behaviour: riot, affray and violent disorder.

The offence of riot is committed when 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. In such a case, each of the persons using unlawful violence for the common purpose is guilty of riot.

The offence of affray is committed by a person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.

Riot and affray are serious offences. The Government proposes that the maximum penalty for riot be seven years for the basic offence and 10 years for an aggravated offence. For affray, the maximum penalty for the basic offence is three years and for the aggravated offence, five years. The legislation confers discretion on the prosecution in cases of affray to prosecute a basic offence as a summary offence.

The third offence is violent disorder. Violent disorder is a less serious summary offence. This offence is committed where three or more persons, who are present together, use or threaten unlawful violence and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. In such a case, each of the persons using or threatening unlawful violence is guilty of the offence.

Unlike the existing summary offence of disorderly conduct, the offence violent disorder requires that the defendants use or threaten unlawful violence. There is also the requirement that a person of reasonable firmness present at the scene would have feared for his or her personal safety. As such, the maximum penalty for violent disorder will be two years imprisonment. By contrast, the maximum penalty for the existing offence of disorderly conduct is three months imprisonment.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Amendment of section 5AA—Aggravated offences

This amendment is consequential to the insertion of Part 3A. It has the effect that an offence against Part 3A won't be aggravated by the fact that the offender committed the offence in the company of others. This is because the offences in Part 3A, by their nature, will often involve more than 1 person.

5—Insertion of Part 3A

This clause inserts a new Part 3A.

Part 3A—Offences relating to public order

83A—Interpretation

This clause sets out the meaning of violence for the purposes of this Part. It is a very broad definition and covers any violent conduct towards both persons and property (except in the case of affray) and may include conduct not intended to cause injury or damage (for example throwing a missile).

83B—Riot

This clause creates the offence of riot. Where 12 or more persons together use or threaten violence for a common purpose, such that a person of reasonable firmness present at the scene would fear for his or her personal safety, each person using unlawful violence for the common purpose is guilty of riot. The person must intend to use violence or be aware that his or her conduct may be violent. There is a maximum penalty of 7 years imprisonment for a basic offence and 10 years imprisonment for an aggravated offence. The 12 or more persons need not use or threaten unlawful violence simultaneously, and the common purpose may be inferred from conduct. For the purposes of the offence, a person of reasonable firmness need not actually be present at the scene, which may be a public or private place. If a jury is not satisfied that an accused person is guilty of the offence of riot, but is satisfied that the accused is guilty of the offence of violent disorder under section 6A of the Summary Offences Act 1953, the jury may bring in a verdict that the accused is guilty of that offence.

83C—Affray

This clause creates the offence of affray. A person who uses or threatens unlawful violence towards another, such that a person of reasonable firmness present at the scene would fear for his or her personal safety, is guilty of affray. This offence differs from riot in that there may only be 1 person using or threatening unlawful violence and there need be no common purpose. If there is more than 1 person using or threatening unlawful violence, then the conduct of them taken together is relevant. As with riot, there need not actually be a person of reasonable firmness present at the scene, which may be a public or private place. For the purposes of this offence, a threat cannot be made by words alone. To be guilty of affray, the person must have intended to use or threaten violence or be aware that his or her conduct may be violent or threaten violence. There is a maximum penalty of 3 years imprisonment for a basic offence and 5 years for an aggravated offence. The prosecution may also choose to prosecute this offence as a summary offence in the Magistrates Court.

Part 3—Amendment of Summary Offences Act 1953

6—Insertion of section 6A

This clause inserts a new clause in the following terms:

6A—Violent disorder

This clause provides for a new offence of violent disorder. Thus, if 3 or more persons present together use or threaten unlawful violence and their conduct taken together is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using or threatening unlawful violence will be guilty of an offence. The person must have intended to use or threaten violence or be aware that his or her conduct may be violent or threaten violence. There is a maximum penalty of $10,000 or 2 years imprisonment. To make out this offence, it is not necessary for 3 or more persons to use or threaten unlawful violence simultaneously. Nor is it necessary for a person of reasonable firmness to actually be present at the scene. This offence may be committed in private or public places.

For the purposes of this clause, violence has a very broad definition and covers any violent conduct towards both persons and property and may include conduct not intended to cause injury or damage (for example throwing a missile).

Debate adjourned on motion of Hon. J.M.A. Lensink.

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