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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-07-06 Daily Xml
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Bills

Summary Offences (Disrespectful Conduct in Court Proceedings) Amendment Bill

Introduction and First Reading

The Hon. D.G.E. HOOD (16:43): Obtained leave and introduced a bill for an act to amend the Summary Offences Act 1953. Read a first time.

Second Reading

The Hon. D.G.E. HOOD (16:44): I move:

That this bill be now read a second time.

An important feature of our judicial system resides in showing respect towards judicial officers, including judges and magistrates, who are charged with upholding procedural fairness and impartiality in our judicial system. Showing respect begins with following the simple directions which they may make from time to time and can include standing when being asked to or speaking when being spoken to.

The bill that I have introduced today addresses this need and seeks to uphold respect for our court system and in particular its judicial officers. This bill provides courts, tribunals and other authorities vested with powers of inquiry greater authority to maintain court order and procedural fairness during proceedings. It is well known that courts are under a heavy burden from the substantial amount of cases waiting to be heard. It seems to be a modern trend, not just in South Australia but throughout the Western world. Any behaviour that would further unnecessarily diminish the court’s ability to efficiently manage and adjudicate cases should be appropriately dealt with.

Lately, there has been a series of cases highlighting the need for new laws that can effectively deal with and deter disrespectful behaviour to maintain the order in the courts required and other tribunal proceedings. In one recent case in New South Wales, an accused who was tried for murder simply refused to stand in the court for the four judges who this person was before over an 18 month period. That is, the person refused to stand on each occasion over the 18 months.

More recently, five Muslim men, accused of travelling to Syria by boat to join the Islamic State, appeared in court and refused to stand for a Victorian magistrate. Not only did the five accused fail to stand but a number of their supporters in the public gallery also refused to stand for the magistrate when instructed to do so. When questioned by the court, the lawyer for the accused men cited that their refusal to stand should be excused. The lawyer for the accused contended that refusing to stand is consistent with their religious beliefs. Essentially, he explained that these men did not recognise or respect any other authority other than their Islamic God, Allah.

These cases contribute to the growing concern that the current contempt threshold, the contempt of court threshold that is, is set at a level where disruptive and disrespectful behaviour could go unchecked in the courts. Not penalising such behaviour would send the wrong message to the community and potentially undermine public confidence in the judicial system, as not dealing with disrespectful behaviour towards a court clearly is not consistent with community expectations.

The bill I propose creates a new offence aimed at those in proceedings before a court who engage in disrespectful conduct. The proposed fine is a maximum penalty of $1,250 or three months imprisonment. The penalties contained in this bill are not arbitrary, but purposely drafted to be consistent with other penalty provisions under the Summary Offences Act 1953 and the Act  Interpretation Act 1915. This new offence is about providing sentencing courts with wider discretion to deal with disrespectful behaviour in a way that the court deems fit. This bill seeks to bridge the gap between a judge’s power to remove a disruptive person from the courtroom and the more serious contempt of court offence. There seems to be powers to deal with the very minor and the very major, but nothing in the middle, and thus I believe this bill will provide a means of meeting community expectations of behaviour in our courts.

The definition of 'court' under this bill is purposely wide to encompass all courts, including the Magistrates Court, the Supreme Court, the District Court and appropriate tribunals, and it extends powers to all of these bodies to deal with disrespectful conduct that may not meet the criteria of strictly speaking of being in contempt of the judicial body. Under the bill, disrespectful conduct includes, but is not limited to, refusing to stand up after being requested to do so by the court, using offensive or threatening language, yelling or interfering with or undermining the authority, dignity or performance of the court. The bill also importantly includes a provision to prevent any double jeopardy in relation to contempt proceedings, or in other words a provision ensuring that a person is not penalised twice for the same act.

Although I am sure there will not be an overlap between this new offence in contempt of court, I have included it in this bill as a means of being overly cautious. I have spoken publicly on the issue of disruptive and disrespectful behaviour in our courts, recently appearing on Today Tonight, as well as on radio programs, and since undertaking these media appearances, and particularly the Today Tonight program, I have received overwhelming support in favour of this bill. I have received support from constituents concerned with the current state of courtroom behaviour and it may surprise members to hear that I have actually received support for this bill from the Islamic community itself.

Indeed, I would like to read excerpts from the statement that I have received from the Islamic Association of South Australia, who are responding to the aforementioned New South Wales case. Under that statement, the Imam Shaikh Tawhidi—and I quote directly from his letter dated 30 May 2016 (of which I have a copy)—states:

A statement regarding Australia's judicial practices.

Based on the Islamic authority provided to this association from the most eminent grand ayatollahs, Islamic jurists and Islamic seminaries to represent our Muslim communities in Australia, the Islamic Association of South Australia condemns the refusal of the so-called Muslims to stand before the magistrate in court.

These are their words. I am quoting directly:

The Islamic Association of South Australia and all of its official establishments and affiliates announce that the five alleged terrorists along with their actions do not represent the peaceful, tolerant and law-abiding Sunni, Shiah and Ahmadi Muslim communities in Australia, as Muslims' Islam teaches us to respect the country we reside in and to abide by the laws of its ruling government. All grand Islamic jurists have ruled that it is not permissible to break the laws of the country one resides in and one must strive to create and/or maintain a peaceful atmosphere for all human beings in order to attain harmony.

We also acknowledge that the Sunni Muslim community is not represented by the extremist minority who have unlawfully associated itself with it. We all stand united and in full support of the Australian law system, customs, traditions and practices.

It is signed by the Imam Shaikh Tawhidi and has the seal of the Islamic Association of South Australia on the letter.

I was quite surprised that I was able to gain support from the Islamic Association. I did not seek it, and to their credit they actually contacted me. It is also important, I think, to point out that the Imam has clearly condemned the practices of disrespecting or showing contempt towards our judicial system and is specifically supportive of this bill. Not only has he forwarded that letter that I have just read but I have actually met with him and he confirmed his support for this bill in person and, as you have just heard, also in writing.

In addition to that, it is important for the chamber to know that this bill that I am presenting today is not unique. That is because earlier this year the New South Wales Attorney-General introduced a similar bill to address disrespectful behaviour in their courts. Similar to the bill that I am introducing here, it is entitled the Courts Legislation Amendment (Disrespectful Behaviour) Bill 2016, New South Wales, and it also recognises the fundamental role of courts in our society and system of government.

The bill was drafted in response to the New South Wales District Court trial that I referred to earlier, which highlighted the type of disrespectful behaviour, such as failure to stand, which could potentially not amount to contempt strictly speaking and thus not be properly dealt with if there was not a specific offence that would be appropriate to apply, as is the case in this bill and as is the case in the New South Wales bill, which is now an act because it has passed their parliament.

Based on the public outcry following the case that I have just outlined, it was clear that the contempt of court provisions did not adequately reflect the widespread community concern about the lack of respect shown towards judicial officers in this and other cases. Speaking on the bill, the Hon. David Clarke of the New South Wales Legislative Council succinctly summarised the object of the bill when he stated:

The benefits of the bill are twofold. First, judges and magistrates will be provided with an additional tool to regulate proceedings and manage their courtrooms. However, the courts will still have all the existing tools at their disposal to conduct their proceedings. Secondly, the bill sends a clear message that adherence to our laws and procedures of the judicial system is a fundamental expectation of all who appear before the courts.

These objects and benefits are also true for this bill that I am putting forward today. Most recently, the New South Wales bill has actually passed the parliament without any amendment. It is now law in New South Wales.

To conclude, these laws are necessary to reflect our community's expectation that those appearing before the courts and any other judicial bodies must show respect for the presiding judicial officers. Quite simply, this bill targets anyone who is acting in a disrespectful manner towards the court, whether that be parties to the proceedings or those in the public gallery. Regardless of their race, colour or religion, this law applies equally to everyone. As I pointed out and read onto the record, it is strongly supported by the South Australian Islamic Association, as I have just indicated.

Furthermore, just for clarity's sake, a very similar bill has passed the New South Wales parliament. I do indicate to the chamber that I will be seeking to bring this matter to a vote, certainly before the end of the year. As I have indicated, I have had very broad-based public support, including from the Islamic community, and I look forward to it being supported through this place.

Debate adjourned on motion of Hon. J.S. Lee.

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