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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2018-11-07 Daily Xml
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Bills

Summary Offences (Disrespectful Conduct in Court) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 6 November 2018.)

The Hon. K.J. MAHER (Leader of the Opposition) (17:35): I rise to indicate that I am the lead speaker and have conduct of this bill on behalf of the opposition. Members will be aware that there have been amendments lodged to provide some important protections, which I will go into in a bit more detail shortly. This bill makes it an offence for a person to engage in disrespectful conduct before the court during proceedings. The maximum penalty introduced is $1,250 or three months' imprisonment. Disrespectful conduct has been defined as refusing to stand up after being requested to do so by the court and using offensive or threatening language and interfering with or undermining the authority, dignity or performance of the court.

In her second reading explanation in the other place, the Attorney-General advised that this bill is based heavily on a New South Wales bill. The Attorney-General in the other place also uses the New South Wales act to justify the introduction of this bill into South Australia. As pointed out in the Law Society's submission, there are some significant differences between the context and content of the SA bill and the New South Wales act. The New South Wales act provides maximum penalties of 14 days' imprisonment or 10 penalty units (approximately $1,100), or both.

The context for the introduction of the New South Wales act was that an offender who shot a man refused to stand up for a judge, and the offender claimed that under his faith you do not stand for anyone except Allah. Ultimately, it was found that a refusal to stand for the judge was disrespectful but did not meet the threshold for contempt. There does not appear to be evidence of a problem with this yet in South Australia, but that does not mean that we are not supporting this bill. It is just that, unlike New South Wales, we have not had something that the bill seeks to address yet; rather, it seeks to address something that may happen in the future.

A further point of difference between the New South Wales legislation and the bill that was put before this parliament is that the judge must refer the conduct to the Attorney-General for a potential prosecution. It is not clear why this position is not being carried over into the South Australian bill. I understand the Attorney-General's Department has advised that the penalties for disrespectful conduct within this bill are consistent with the contempt penalties in the Supreme Court and the District Court but not the Magistrates Court or the Youth Court, which is why there is the difference that I referred to earlier.

I am told that further advice from the Attorney-General's office indicates that the definition of 'consistent' has been interpreted to mean (I am quoting from an email from the Attorney-General's office):

The power to punish contempt is flexible in the Supreme Court and can include either a fine or imprisonment, without expressly setting a maximum or minimum. The penalties contained in the Bill are consistent with the penalties that the Supreme Court may impose, in the sense that the penalties in the Bill sit below the maximum penalties which can be imposed by inferior courts, such as the Magistrates Court and Youth Court. As such, the maximum penalties in this Bill are lower than any of the maximum penalties which can be imposed by any of the courts for contempt, including the Supreme Court.

I note that this is a broad definition of 'consistent'. In using that sort of definition, almost any penalty would be considered consistent.

The Law Society's submission proposed that an explicit defence provision be included in the bill where a person is physically unable to stand. The opposition had moved amendments to deal with that, which I understand the government has taken up with amendments which they filed today, I think, or yesterday—in any event, they are on our table today—and which are very similar to the amendments that had been filed quite some time ago by the opposition.

The other part of it—and this is a significant difference that is now much less of a difference between the government and the opposition, but I think still an important difference—is an amendment the opposition filed introducing a defence. There would appear to be in the bill no real regard for people who are appearing in court for the first time and do not have any proper understanding of court processes, and who may be unaware that their behaviour is actually disrespectful.

The Law Society's submission noted that there was no requirement that a person must be warned that their behaviour is disrespectful prior to being charged, and suggested that that be included. So the opposition filed an amendment to the effect that someone had to be warned that their behaviour was disrespectful so that they knew that what they were doing was, in the eyes of that court, disrespectful, and someone could not just be charged without such warning.

The government has now filed amendments that go to both those points. We will get to this when we debate the amendment, and I do not propose this will be a long debate. The opposition filed amendments to allow for a defence if someone was physically unable to stand and also a defence that essentially provided that the court must provide a warning that the behaviour is disrespectful, otherwise you cannot be charged.

The variation now between what the government has put on file is, essentially, under the opposition's amendments, that the court at the time makes the decision about issuing that warning. If someone in a particular court is behaving in a way that the judge of that court at a particular time thinks is disrespectful, the judge will issue the warning that that behaviour is disrespectful, and that constitutes the warning and further such behaviour can then be charged.

The government amendments do not have it as allowing the court or judge at the time making that decision, but rather that a general warning can be given. We prefer our amendments because they allow the judge in the court at the time to be the arbiter of what they consider disrespectful. After all, this is behaviour that is disrespectful to the court, and we think it should be the judge at the time of issuing that warning who decides whether the behaviour is disrespectful and whether they are offended by that behaviour rather than it being an objective test at the end. We think the person best placed to issue that warning is the judge, who is the one, it has been suggested, to whom this behaviour is being applied.

There is now a difference, a small but important difference we think, between the amendments the opposition has filed and the government's amendments. We note that the government has come a long way in terms of its position and has filed amendments, but we prefer our amendments because we think the judge in the court at the time is best placed to decide, if she or he thinks that conduct is disrespectful, to issue that warning.

The Hon. R.I. LUCAS (Treasurer) (17:42): I thank the Leader of the Opposition for his contribution to the debate, and look forward to the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. K.J. MAHER: As I outlined in my second reading contribution, the amendments that have been filed—and those I have before me that have been filed today by the government—go a long way to addressing what we thought were some inadequacies of the bill. If members, particularly crossbenchers, are considering both sets of amendments—the government's and the opposition's amendments—I think the big difference in discussions between the government and the opposition really boils down to the opposition amendment No. 1 [Maher—1].

If you look at the first amendment at (1a)(a), it provides that the court 'considered the earlier conduct to have been disrespectful'. That really is the crux of the difference between the government's and the opposition's amendments. The opposition thinks it should be up to the court at the time when they issued the warning to decide for themselves if the conduct was disrespectful, whereas the government's does not prefer that. They prefer it not to be a decision that the court at the time makes.

We feel that if it is disrespectful conduct to the court, the court at the time is in the best place to decide if it is disrespectful which is why we prefer ours which includes the (1a)(a) provision stating that the court 'considered the earlier conduct to have been disrespectful' and to leave it to the discretion of the magistrate or the judge at the time to decide whether the conduct was disrespectful in issuing that warning.

The Hon. R.I. LUCAS: I will explain the government's position in relation to both the Leader of the Opposition's amendment and the government's alternative amendment. The government's position is as follows. Amendment No. 1 from the Leader of the Opposition has two parts, and I will address on behalf of the government both parts separately.

Proposed clause 4(1a) of amendment No. 1 [Maher—1] seeks to ensure that a person cannot be prosecuted for an offence of disrespectful conduct in court unless the person has engaged in previous conduct before the court and the court advised the person to consider the conduct to be disrespectful and that such conduct may result in a charge of an offence. Whilst the government accepts that there may be merit in warning a person that engaging in certain conduct may result in being charged with an offence, it is the government's view that the requirement for the court to advise a person that it considers that the initial conduct is disrespectful is potentially quite onerous.

The effect of the amendment would mean that a person could only be charged with an offence where a judicial officer on an earlier occasion formed the view that an earlier course of conduct was in fact disrespectful. This would appear to create a situation which requires the judicial officer in relation to the earlier conduct to determine whether or not the conduct was in fact disrespectful, even though no charge can be laid. The government will be moving amendment No. 1 [Treasurer—1] which imposes a less onerous obligation in terms of what is required from the judicial officer which it considers will more appropriately address the concerns.

The difference between the two sets of amendments is the effect of amendment No. 1 [Maher—1] that a person could only be charged with the offence where a judicial officer on an earlier occasion formed the view that an earlier course of conduct was in fact disrespectful. This would appear to create a situation which requires the judicial officer in relation to the earlier conduct to determine whether or not the conduct was in fact disrespectful even though no charge can be laid.

The government amendment does not require there to be disrespectful conduct before there can be a warning. It just requires that there be some earlier conduct that triggers the judicial officer to warn the person that disrespectful conduct may result in a charge of an offence. The government amendment contains a proposed clause 4(1b) which is identical to the clause 4(1b) proposed in amendment No. 1 [Maher—1]. The government also proposes to support amendment No. 2 [Maher—1] which I will address later on.

I now turn to clause 4(1b) of amendment No. 1 [Maher-1]. Proposed clause 4(1b) of amendment No. 1 [Maher-1] will make it a defence to prosecution for the defendant to prove that the disrespectful conduct arose due to a physical disability or cognitive impairment of the defendant. Cognitive impairment is defined broadly in amendment No. 2 [Maher-1], and is taken to include but is not limited to a developmental disability, an acquired disability as a result of illness or injury, and mental illness.

The government has been clear in its position that the offence will not apply to persons who, by reasons of a physical or mental incapacity, may involuntarily engage in conduct considered to be disrespectful. Notwithstanding that, the government recognises there may be some circumstances in which a person may intentionally engage in disrespectful conduct but nevertheless may do so by reason of a physical disability or cognitive impairment. In these situations it is appropriate that the defendant be given the opportunity to establish such a defence. As such the government takes no issue with clause 4(1b) of amendment No. 1 [Maher-1], and it is replicated in amendment No. 1 [Treasurer-1] that the government will be moving.

The Hon. M.C. PARNELL: Given that we have two rival sets of amendments I think it is important that we put our position on the record so that the council knows where we all stand. Both the Labor and opposition amendments deal with the same subject matter. In some ways this reminds me of when I was a young lawyer dealing with the question of when a dog becomes a dangerous dog. It got one free bite. It was not dangerous until it had bitten someone, but once it had bitten someone, once the dog had had its one free bite, it was dangerous after that and the full weight of the law could be brought down on its canine head—next to the medal the Hon. Frank Pangallo wants to bestow.

They do cover the same sort of material. I guess the amendment the Treasurer has tabled is, in some ways, simpler: in effect, a person who behaves in a way that might be disrespectful is given a warning, but the test about whether it was, in fact, disrespectful is the second offence. They get their one free bite, they get their warning, they are not prosecuted for the first outburst (if that is in fact what it is, an outburst), they are not prosecuted for that. They are given a warning, and they are prosecuted for the second one.

To be honest there is not a lot of difference between the government and the opposition's amendment. As the Leader of the Opposition said, a provision like this has not really had a lot of work to do in South Australia so we are in the realm of speculation. On the basis that the Treasurer's amendment is simpler, I am inclined to support that.

I must admit that I had not been inclined to support the second of the opposition amendments—to provide the definition of cognitive impairment—but I see now that the government is supporting it. Part of the reason for that was that looking at the list of conditions, most of us have known people who have those conditions who would not behave disrespectfully and who have no mental impairment whatsoever—and cerebral palsy is one that springs to mind, it affects people differently. Having said that, if the government and the opposition are in agreement we can do it.

The other situation I thought was probably worth considering is that most unfortunate of disabilities, Tourette's syndrome, which often manifests itself in obscene outbursts at inappropriate times. Whilst it might seem a bit funny when you hear someone on a train or a bus launching forth with a string of expletives, it must be one of the most debilitating conditions. It is an awful situation. You would hope that a condition like that would be included either as a cognitive impairment or, more likely, as a physical disability because the person apparently does not have control of the words coming out of their mouth. I would like to see that those situations were covered.

With that, the Greens will be supporting the Treasurer's amendment, and if the Treasurer is supporting the second of the opposition's amendments we will not stand in the way of that either.

The Hon. C. BONAROS: My colleague Frank Pangallo and I have to agree that it seems there is a very fine distinction between the two amendments that we are dealing with here, but we too are inclined to support the government's proposal as opposed to the opposition's, insofar as it requires that warning in the first instance and then the subsequent charges follow. For the record, our position is to support the government's amendment in this instance and also to support the second amendment in relation to the defence for charges arising from physical disabilities or cognitive impairments.

The Hon. J.A. DARLEY: I will be supporting the government's amendment and also the opposition's second amendment.

The Hon. K.J. MAHER: On the basis of the indications, I indicate to the chamber that I will not be moving amendment No. 1 [Maher-1], but on the basis of the indication of the government's support for amendment No. 2 [Maher-1], I will be moving that. So I will not be moving amendment No. 1 [Maher-1].

The Hon. R.I. LUCAS: I move:

Amendment No 1 [Treasurer–1]—

Page 2, after line 19 [clause 4, inserted section 60]—After inserted subsection (1) insert:

(1a) A person cannot be prosecuted for an offence against subsection (1) in respect of certain conduct before a court unless, before the conduct was engaged in, the court had warned the person, in respect of other earlier conduct before the court, that disrespectful conduct before the court may result in a charge of an offence.

(1b) It is a defence to prosecution for an offence against subsection (1) to prove that the conduct the subject of the charge arose due to a physical disability or cognitive impairment of the defendant.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 2 [Maher–1]—

Page 3, after line 21 [clause 4, inserted subsection (7)]—

Before the definition of court insert:

cognitive impairment includes—

(a) a developmental disability (including, for example, an intellectual disability, Down syndrome, cerebral palsy or an autistic spectrum disorder);

(b) an acquired disability as a result of illness or injury (including, for example, dementia, a traumatic brain injury or a neurological disorder);

(c) a mental illness;

The Hon. R.I. LUCAS: It is one the government supports.

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (17:57): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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