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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2018-10-16 Daily Xml
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Summary Offences (Disrespectful Conduct in Court) Amendment Bill

Second Reading

The Hon. R.I. LUCAS (Treasurer) (18:02): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and the detailed explanation of clauses inserted into Hansard without my reading it.

Leave granted.

Mr President, the Summary Offences (Disrespectful Conduct in Court) Amendment Bill 2018 implements the Marshall Government's commitment to amend the Summary Offences Act 1953 to make it a summary offence for a person, who is a party to proceedings before a court, to intentionally engage in disrespectful conduct before the court.

The Bill generally adopts the provisions of the Summary Offences (Disrespectful Conduct in Court) Amendment Bill 2016, with some amendment. The 2016 Amendment Bill was a private members Bill introduced into the other House by the then Shadow Attorney-General, now Attorney-General. It was read a second time but was ultimately defeated.

This Bill also incorporates provisions of the New South Wales offence of disrespectful behaviour, as established in the Courts Legislation Amendment (Disrespectful Behaviour) Act 2016, on which the former private members Bill was originally based.

The issue was first identified in a New South Wales case involving an accused who was charged with shooting a man outside a night club in 2013. The accused refused to stand for four judges over an 18 month period.

When the accused was charged with contempt, it was held that the failure to stand for a judge was not contempt of court.

Legislation was therefore developed in New South Wales to address such disrespectful behaviour.

This Bill acknowledges the importance of maintaining the administration of justice, and in preserving the authority and dignity of the courts. The Bill seeks to uphold the expectations of the community that parties to court proceedings will conduct themselves in a respectful manner before the court and recognises the rights of all parties to be heard free from unnecessary disruptions and abuse from other parties.

Unfortunately, there have been instances where defendants, families and witnesses even have created a situation where abusive behaviour is occurring towards judicial officers and the like.

As the Law Society stated in its submission on this Bill:

The rule of law and respect for our institutions and their practices are fundamental tenants of our democratic society. Respect for and compliance with the practice and convention of the court is integral to the smooth flow of proceedings.

Mr President, the Bill achieves its objectives by creating a new summary offence of disrespectful conduct. The introduction of the new offence will create an additional tool to enforce stricter standards of respectful conduct which will supplement the existing powers of the court.

The offence seeks to capture disrespectful conduct which currently falls in between the existing powers of the courts to remove a person from the courtroom and its inherent judicial power to deal with contempt of court.

It is intended that the offence will operate alongside the judiciary's existing powers to manage the conduct of parties.

For the purposes of the offence, 'disrespectful conduct' is defined broadly in the Bill to include refusing to stand up for a judicial officer after being requested to do so by the court, using offensive or threatening language and any other conduct which may interfere with, or undermine the authority, dignity or performance of the court.

The Bill does not apply to youths or proceedings conducted in the criminal jurisdiction of the Youth Court. This measure reflects the generally accepted principle that youths should not be subject to a term of imprisonment. It is appropriate that the Youth Court continue to exercise its discretion according to its existing powers to manage the behaviour of youths in proceedings.

The Bill makes it an essential requirement of the offence that there be an intentional physical act rather than an involuntary act, but does not require a person to intend to be disrespectful to the court.

For example, deliberately failing to stand when requested may be disrespectful, even if the person did not intend to cause disrespect by remaining seated. By contrast, a person who has a physical impairment which prevents them from being able to stand before the court would not be captured by the offence.

The Bill prescribes a maximum penalty of a $1,250 fine or three months imprisonment. These penalties are consistent with the penalties currently prescribed for disorderly or offensive conduct or language, and are less than those prescribed for the offence of contempt in the face of court in the lower courts.

For the purposes of proceedings for the offence, the Bill ensures that the presiding judicial officer of the proceedings in which the disrespectful conduct occurred cannot be compelled to give evidence in proceedings before any court for the offence.

In addition, the Bill also allows for official transcript or official audio or video recording of the proceedings in which the alleged disrespectful conduct occurred to be admissible in evidence in the summary proceedings, and for such evidence to be taken as evidence of the matter so included.

As a corresponding measure intended to support the existing powers of the courts to deal with instances of contempt, the Bill also makes clear that a person cannot be prosecuted for an offence for disrespectful conduct, if that conduct is, or has already been, the subject of contempt of court proceedings against the person.

This Bill will send a clear message that adherence to the laws and procedures of the judicial system is a fundamental expectation of all who appear before the courts.

Mr President, 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 Summary Offences Act 1953

4—Insertion of Part 11A

This clause inserts a new Part 11A containing a single new clause (proposed section 60) creating an offence relating to disrespectful conduct before a court. Proposed section 60(1) requires that a person who is a party to proceedings before a court must not intentionally engage in disrespectful conduct before the court during those proceedings. The maximum penalty for the offence will be $1,250 or imprisonment for 3 months.

Disrespectful conduct is defined to include refusing to stand up after being requested to do so by the court, using offensive or threatening language and interfering with or undermining the authority, dignity or performance of the court.

The new offence will not apply in respect of proceedings in the Youth Court of South Australia (other than proceedings under the Children's Protection Act 1993 or the Children and Young People (Safety) Act 2017) or a child who is a party to proceedings under the Children's Protection Act 1993 or the Children and Young People (Safety) Act 2017.

Proposed section 60 will not affect the power of a court to take action for contempt of court and, in the event that a court takes action for contempt of court for a person's conduct in court, the person cannot be prosecuted for an offence against the new offence (except where the contempt of court proceedings have been discontinued by the court in contemplation of a charge for an offence against the new section).

The presiding officer of proceedings in a court during which alleged disrespectful behaviour occurred cannot be required to give evidence in proceedings before any court for an offence against the proposed section 60.

Debate adjourned on motion of Hon. I.K. Hunter.

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