HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-04-03 Daily Xml
Contents
Pdf Xml

STATUTES AMENDMENT (PUBLIC ORDER OFFENCES) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 1 April 2008. Page 2180.)

The Hon. S.G. WADE (16:36): This is a companion bill to the Serious and Organised Crime (Control) Bill, and it introduces two new offences into the Criminal Law Consolidation Act and one new offence into the Summary Offences Act. I believe it is important that this council appreciates that this legislation, although presented and promoted in the context of the so-called 'bikies' legislation', has a more general effect. Anyone who engages in activities which are defined in these bills as riot, affray or violent disorder stands to be prosecuted for the offences.

We are advised that the bill has been stimulated by the experience of our law enforcement agencies against gangs. When gang members engage in acts of collective violence, for example, public fights with members of rival gangs or others, it is often difficult, we are told, to secure convictions against them because the gang members refuse to cooperate 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—for example, the gang members—or other witnesses, prosecutions for serious offences arising out of these incidents are rarely successful. Often the police are limited to charging an offender with a minor summary offence of disorderly or offensive conduct, or language, that carries a maximum penalty of three months imprisonment. These new provisions will enhance public safety by making more serious offences available to the police.

The first offence, riot, is the most serious. 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 the people (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 a common purpose is guilty of riot. In the other place, the Attorney-General advised that this legislation is based on New South Wales legislation, which, in turn, is based on United Kingdom legislation, which, in turn, is based on common law. He suggested that it probably goes back to the Riot Act of the United Kingdom.

The Attorney-General and the speaker in another place had a discussion as to whether the Riot Act was the Riot Act of 1713 or the Riot Act of 1714. I understand that the act was the Riot Act of 1714. The act was passed in 1714 and took effect in 1715. This is historically rooted in that Riot Act of 1714. The key elements are: that there be 12 or more persons together; that they use or threaten unlawful violence for the purpose of 'riot'; and that there be a common purpose, and that purpose can be inferred from conduct.

Clearly, that definition is broad and, once you have those elements together, if 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, the offence occurs. My reading is that there is no requirement that a person actually be present. The unlawful violence may be directed at property. There is a saying: 'When a tree falls in a lonely forest and no-one is there to hear it, does it still make a sound?' I am not clear whether, under this act, when you have a riot in a lonely place it is still a riot.

There is a requirement 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. However, the bill makes it clear that that notional person does not actually need to be present. In terms of the implementation of this offence, I would appreciate clarification from the minister whether a person needs to be present or just the lack of a notional person.

The second offence is that of affray. It is similar to the offence of riot, except that affray only necessarily involves a person (rather than a group of persons) who uses or threatens unlawful violence. In this case, it can only be towards another person. The offence cannot be in relation to a piece of property. 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. On this matter, I ask the minister: where more than one person's conduct is being taken together to adduce the use or threat of violence, does the group then need to share a common purpose?

In the case of this offence, the definition of 'violence' is a narrower definition. In this case, it does not include 'violent conduct towards property'. Both a riot or a violent disorder, on the other hand, include violence towards property. The third offence is that of violent disorder, which is to be inserted in the Summary Offences Act by this bill. Violent disorder is a less serious summary offence. This offence would be 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.

Unlike the existing summary offence of disorderly conduct, the offence of 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.

The opposition supports this legislation. We appreciate the importance of the maintenance of public order for the common good and the freedom of individuals. We trust the police to use these powers carefully to ensure that the balance between the interests of the public in order does not overwhelm the interests of individuals in freedom.

The Hon. M. PARNELL (16:42): The types of criminal conduct described by the minister in the second reading explanation are deserving of our condemnation and they are deserving of the imposition of tough criminal sanctions. We would all agree that gang warfare has no place in either public or private spaces. I support laws that deal appropriately with the conduct of individuals who are directly involved in violent behaviour, whether or not they are members of the so-called outlaw motorcycle gangs or in the general community.

My main concern with this legislation is that I want to be assured that it does not stand in the way of peaceful democratic protest and, in particular, that the laws will not be used to stifle the democratic process and the right of people to conduct protest rallies. My concerns, which I would say are at the status of questions at this stage, are similar to ones which I have raised previously in relation to public safety orders under the Serious and Organised (Crime) Control Bill. I would like the minister to respond to these concerns and, in particular, to a hypothetical case study which I will give because I think this points to a possible unintended consequence of the legislation.

Imagine a peaceful rally. Many of us have been involved in marches and rallies, whether it is for reconciliation by marching over the bridge or in support of workers' rights in front of Parliament House. All of us engage in peaceful democratic protest. However, let us say that we are involved in a peaceful rally and some idiot up the front throws a rock: not someone who was part of any organising committee or necessarily even affiliated with any of the people who were involved in the rally, but some idiot gets to the front of a rally and throws a rock.

If you were on the receiving end of that, whether or not it hit you, you would be fearful. You do not know which of the thousand people marching towards you might have been the one who threw the rock. We all would agree that the fear would be real. My concern is that people who had no part in that behaviour, who would abhor that behaviour, might find themselves at the wrong end of the criminal law with the refrain, 'You were with them, so you are guilty,' even though it might be one or two, or a small number of people, who were involved in the violent conduct.

If we take that hypothetical case study and apply it to the new offence of affray, we find that it would play out in a certain way. First, the offence of affray is defined as follows:

(1) 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 is guilty of affray...

(2) If two or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).

It might be that there is a small minority of people, or it might be one or two who are actually engaged in violent conduct, with 1,000 other people marching behind them not engaged in that behaviour. Subsection (6) provides:

(6) A person is guilty of affray only if the person intends to use or threaten violence or is aware that his or her conduct may be violent or threatened violence.

If you were in the second row of a rally and some idiot at the front throws a rock, and you see what is happening and you see that any reasonable person would be fearful, then you do have the knowledge that there is a fearful reaction. You know that you are part of it—'it' being the rally—even though you might abhor that behaviour and not be part of any rock throwing yourself.

It seems to me that this new offence of affray, which has parallels in the other two new offences which are created, could catch a person in that situation. A reasonable response to someone who finds themselves unwittingly in a situation where some idiot has been violent would be under great pressure to say, 'I'm out of here because this is not something I want to be a part of'.

The difficulty is that at many protest marches, especially those that achieve some level of publicity, a range of people turn up—overwhelmingly people who are peaceful and supportive—and occasionally there are disruptive elements. It seems to me that there is potential for these laws to undermine what in this country and this state has been a positive culture of peaceful protest.

I am not suggesting for one minute that the police would be intending to target peaceful people in demonstrations, but one has only to take my hypothetical case study and escalate it a couple of notches, so it may be 10 per cent of people in a protest situation who might be conducting themselves violently. The police may be inclined to think that everyone is involved at some level just by being there.

I support the creation of these offences. I support strong criminal sanctions to prevent the types of activities that have been described by the minister, but when we get to the committee stage I would ask for some assurances that there is no possibility of these laws standing in the way of our democratic right to protest.

Debate adjourned on motion of Hon. T.J. Stephens.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT