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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2018-11-06 Daily Xml
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Summary Offences (Disrespectful Conduct in Court) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 October 2018.)

The Hon. D.G.E. HOOD (17:47): I rise in strong support of this bill, which gives effect to the Marshall Liberal government's election commitment to make it a summary offence for a party to a proceedings to intentionally engage in disrespectful conduct before a court. I imagine this would not come as any surprise to most members, given that I introduced a private members' bill back in 2016 as a pre-emptive move to prevent unacceptable conduct from occurring in South Australian courts, which was largely a response to what had been exhibited at certain hearings interstate.

You may recall, sir, that my bill did receive passage in this place but lapsed due to the proroguing of parliament. Of course, the former shadow attorney-general, now Attorney-General, also concurrently introduced a similar bill in the other place, which was defeated. Obviously, the type of legislation proposed was not perceived as necessary by the government at that time. Needless to say, I am pleased that our parliament has another opportunity to enact some very important provisions that seek to preserve a respect for the rule of law and associated institutions to maintain a proper administration of justice.

The summary offence of disrespectful conduct, as proposed in this bill, aims to catch conduct which presently falls between the existing powers of removing a person from the courtroom and the inherent judicial power of contempt of court. In effect, this new offence seeks to provide the judiciary with wide discretion to deal with disrespectful behaviour of parties to proceedings in a manner that the court deems fit. The particular behaviour that may give rise to such an offence could take the form of refusing to stand before a judge after being requested to do so, using offensive or abusive language and interfering with or undermining the authority or dignity of the court.

There must be an intentional physical act as opposed to an involuntary act, and it does not require a person to purposefully be disrespectful. It carries a maximum penalty of $1,250 or three months' imprisonment, which is consistent with other penalty provisions under the Summary Offences Act 1953 and the Acts Interpretation Act 1915. It is important to note that this offence would not apply in the criminal jurisdiction of the Youth Court, in appreciation of the commonly accepted principle that youths should generally not be liable for a term of imprisonment except in exceptional circumstances.

As I previously mentioned, the impetus for attempts to introduce such provisions over the past few years has essentially been due to a series of instances where extremely inappropriate conduct has been exhibited in other jurisdictions around the nation. In one case in New South Wales, for example, an accused who was tried for murder refused to stand for four judges over an 18-month period on every occasion it was expected of her. It was later determined by a former attorney-general that the failure to stand did not meet the threshold of being contempt of court, and no further action would therefore be taken.

In Victoria five Muslim men who had been accused of travelling to Syria to join Islamic State appeared in court and refused to stand for a Victorian magistrate. When questioned by the court the lawyer for the accused men stated that their refusal to stand should be excused, contending that their action was in congruence with their religious beliefs. He explained that these men did not recognise or respect any authority other than that of their god, Allah.

Although it has been pointed out on numerous occasions that the intent of this bill is not designed to target any one particular group within our community—and it does not—it is apparent that some individuals may be determined to use their religious observances as an excuse to defy our institutional conventions. Interestingly, I am aware that the Attorney-General recently received advice, via an explanatory note on the judicial process and participation by Muslims prepared by the Australian National Imams Council, that there is in fact no provision under Sharia law prohibiting Muslims from standing up or bowing before a magistrate or judge.

I also add that when I announced my intention to introduce my private members' bill in the previous parliament it attracted considerable media attention, and I was subsequently contacted by many constituents expressing their overwhelming support for the measures to better manage courtroom behaviour. I was actually contacted by members of the Islamic community also supporting the bill. In fact, the Islamic Association of South Australia itself approached me offering its full support for the proposals both verbally and in person, with confirmation in writing on behalf of all its official establishments and affiliates.

There is broad support for this bill right across the various communities we find in our state. In my estimation there is clearly a broad consensus within the community that our courts should be afforded adequate tools to deter and handle any disrespectful action that could hinder their effective and orderly function.

An important feature of our democratic society is showing respect towards our laws and the judicial officers who are charged with upholding procedural fairness and impartiality in our court system. It is concerning that disruptive behaviour may be going unchecked under current legislation, which certainly has the potential to undermine public confidence in the judiciary should it prove to impact the flow of proceedings and diminish the court's ability to effectively manage and adjudicate cases.

Our courts are already under immense pressure from the substantial amount of cases waiting to be heard, and we have a responsibility to ensure they are not further unnecessarily burdened through being forced to endure offensive or improper actions by those who refuse to adhere to the fundamental expectations we have held for some centuries. I support the bill and commend it to the council.

Debate adjourned on motion of Hon. E.S. Bourke.

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