SUMMARY OFFENCES (DISRESPECTFUL CONDUCT IN COURT) AMENDMENT BILL 7 July 2016

Second Reading 

Ms CHAPMAN ( Bragg—Deputy Leader of the Opposition) (10:32): I move: 

That this bill be now read a second time.

Courts are a fundamental part of our society and our system of government. Certainly, we rely on them to enforce our laws, to adjudicate individuals' disputes and most importantly to deliver justice and uphold the rule of law. The traditions and revered rule of the courts are such that the community expects that certain levels of behaviour should be adhered to in a courtroom.

Every year, our judges and magistrates have to deal with sometimes very difficult and stressful circumstances and it is very important that there be a following of the procedures and rules of the court in a respectful manner. Clearly, this is integral to the smooth flow of proceedings and affording all those involved their right to procedural fairness. When these circumstances are disturbed, and in particular there is conduct that is contemptuous of a court, judges and magistrates have the power to deal with serious behavioural misconduct designed to disrupt and undermine the operations of court by means of the contempt laws. 

However, what has occurred in recent times, particularly publicly in both New South Wales and Victoria, is that the threshold the types of disrespectful behaviour are to meet to substantiate contempt has been called into question. In particular, cases of notoriety have exposed the fact that the gap between contempt and the community expectation of behaviour in court has been highlighted. Obviously, this is a worrying extension particularly of this exposed gap. So, what do we do about it? 

This bill is designed to introduce a new offence as a summary offence against deliberate behaviour in court which is disrespectful. It is intended that this will apply to all courts. It is intended to introduce an offence which requires that there be an intentional physical act rather than an involuntary act and not require the 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 stand to cause disrespect by remaining seated. 

The benefits of this bill are essentially to ensure that judges and magistrates are provided with an additional tool to regulate proceedings and manage their courtrooms. However, courts will still have all existing tools at their disposal to conduct their proceedings. Secondly, the purpose of this bill is to 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. 

Members may be aware that the New South Wales parliament has taken action in this space. Obviously, the 2015 case which came before their District Court highlighted concerns of contempt laws not being adequate to cover all conduct, and they moved to introduce an offence. The provision in their legislation, which has now passed the New South Wales parliament, was to introduce an offence of deliberate disrespect to the court, with penalties of up to 14 days in gaol or a $1,100 fine. 

Their legislation is also dealt with in a different model. It amends the Supreme Court, District and Local courts, Land and Environment Court and Coroner's Court legislation to introduce its management within that legislation. It should be noted that they have not introduced an amendment to their Children's Court regime, so children, in their category, would not be the subject of this. 

The other matter which I think is important to identify in respect of the New South Wales legislation is that they have announced that their judicial bench books, which are like a guiding volume to assist judges and magistrates (the judiciary) in the management of their courts, will require that the offending person or persons in the courtroom undertaking disruptive behaviour be given an opportunity to apologise and, secondly, correct their behaviour and presumably abstain from disrespectful or offensive conduct in the face of the court. 

I will add one anecdote here; that is, I do not think there was any intention in the New South Wales regime for there to be an opportunity to avoid penalties just by ingratiating themselves with a judge or magistrate. I recall one occasion at the Port Adelaide Magistrates Court many years ago, when there was offensive and vulgar language from the then prisoner, the defendant, who had been brought into the court, and it was repeated; there was a failure to abstain from it. 

The fact that ultimately the prisoner did not apologise and did not even withdraw but was happy to continue the embellishments, with the reference to the judicial officer as Your Majesty, whilst welcome by the magistrate as a title of even higher status than he was entitled to, nevertheless did not avoid the responsibility of the prisoner to cease to continue disgusting language in the courtroom which, I might add, was addressed to everybody. So, an opportunity to apologise or to correct their behaviour does not mean they can envelop that disgusting behaviour in trying to ingratiate themselves with the magistrate. 

Another matter I want to bring to the attention of the parliament is that in South Australia we have had some concerning recent cases which prompted me to look into this question of how we might best deal with disrespectful conduct in the parliament. I should say that the cases in New South Wales and Victoria have certainly been well publicised and controversial because of the conduct. 

The custom being breached was largely a refusal to stand in the presence of a judge. Those who were defying the custom were people who claimed to be devout Muslims and that that was inconsistent with their custom not to stand for anyone other than their God. It is pleasing to note that a number of the leaders in the Muslim community have also supported the introduction of new offences, such as we are considering here today, because they too understand the importance of maintaining order, civility and dignity in our courts. 

To the best of my knowledge, that has not been a phenomenon which has actually played out in South Australia, but we have had other cases which I suggest warrant the advance of this legislation. In particular, earlier this year we had a circumstance where the magistrate at the Youth Court was the subject of colourful language, to say the least, in respect of a young 14-year-old girl appearing before her. She made statements, along with other foul-mouthed contributions, including, 'You don't look like a judge, you ugly b…' which she cried out from the dock. On a subsequent day, she indicated that she was sorry and the magistrate accepted her apology and the matter was dealt with in a sensible way. 

Another recent case—I just do not have the material to hand—where there were several offending youths who used expletives in the courtroom, obviously causing disruption, again highlighted the need for us to deal with this issue. Contemptuous behaviour or disrespectful behaviour, the latter of which is being attempted to be dealt with in a fair but clearly firm manner by this bill, is something that we need to and must advance if we are truly to respect those who every day are acting to dispense justice and protect our community, and we in these circumstances should make provision. 

The case I referred to earlier was where a 12 year old had appeared in the Youth Court and abused the magistrate, saying, 'I don't need an effing adult, I can do things myself. Eff you, effing dog S-H-I-T.' It is the sort of language that is concerning in itself, that people would act in that manner in these circumstances. I, and I am sure other members of this parliament, would understand the importance of ensuring that, if a person is appearing in court—usually it is the defendant who is the most unhappy. 

But sometimes it is parties who feel that a decision is going the wrong way or they have not been successful in putting a submission who would act in a manner which is quite out of order. They are sometimes under the influence of a drug or alcohol, and in those circumstances may be acting out of their normal character. That is no excuse for disruptive behaviour. As long as the magistrate or judge is satisfied that the act is deliberate, then the issue in respect of their aggravated event, of having been intoxicated, certainly ought not to be something that mitigates against penalty or conviction. 

That is not to say that people who are in this state, or who may be acting under the influence of others, should not be treated with some sympathy in those circumstances. In my view, unless— 

Members interjecting: 

The DEPUTY SPEAKER: Order on my right! I can't hear. 

Ms CHAPMAN: —the offending party has a mental incapacity, they should be treated significantly by the magistrate to ensure that order is restored, and if that requires the prosecuting of this offence, then so be it. If the person or persons disruptive are acting under mental duress, then that is another matter, and we do not need to deal with that today. I commend the bill to the house. 

Debate adjourned on motion of Hon. T.R. Kenyon .