SA Government Introduces Disrespectful Conduct in Court Legislation

Wednesday 18 July 2018 @ 9.42 a.m. | Judiciary, Legal Profession & Procedure | Legal Research

On Thursday (5 July 2017) the SA Attorney-General introduced into the SA Parliament  the Summary Offences (Disrespectful Conduct in Court) Amendment Bill 2018 (the Bill) to implement the SA government's election commitment that it would amend the Summary Offences Act 1953 (SA) 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.

Background

The Bill generally adopts the provisions of the Summary Offences (Disrespectful Conduct in Court) Amendment Bill 2016, which the current Attorney-General introduced as a private member's Bill in 2016, however was ultimately defeated.The  current Bill also incorporates provisions of the New South Wales offence of disrespectful behaviour as established in the Courts Legislation Amendment (Disrespectful Behaviour) Act 2016 (NSW) [see our previous article], on which the Attorney-General's private member's Bill had been based. 

The issue was first identified in a NSW case involving an accused who was charged with shooting a man outside a nightclub in 2013.  At trial in the Parramatta District Court, the accused was on trial for attempted murder and “repeatedly 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 in contempt of court. As a result, legislation was developed in New South Wales to address this circumstance and the question of "disrespectful behaviour" not caught by the charge of contempt.  In NSW, a person is guilty of such an offence if:

(a) the person is an accused person or defendant in, or a party to, proceedings before the Court or has been called to give evidence in proceedings before the Court, and

(b) the person intentionally engages in behaviour in the Court during the proceedings, and

(c) that behaviour is disrespectful to the Court or the Judge presiding over the proceedings (according to established court practice and convention).

In NSW the maximum penalty is 14 days in prison or a fine of 10 penalty units, or both. Proceedings against a person for committing an offence under the provisions will be dealt with summarily, and can be brought within 12 months after the date of the alleged offence.  Proceedings need to be commenced by a person or class of persons authorized to do so by the Secretary of the Department of Justice, and must be authorized by the Attorney-General.

Specifics of the Bill

The Bill  creates a new summary offence of "disrespectful conduct" and adds  to existing legislation to enforce stricter standards of respectful conduct, supplementing the existing powers of the court. The offence seeks to capture disrespectful conduct  currently falling  between the existing powers of the court to remove a person from the courtroom and its inherent judicial power to deal with contempt of the court. It will, according to the Attorney-General, operate alongside the judiciary's existing power to manage the conduct of parties.

"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, or any other conduct which may interfere with or undermine the authority, dignity or performance of the court. It should be noted that the Bill does not apply to "youths" or proceedings conducted in the "criminal jurisdiction of the Youth Court". This, according to the Attorney-General, is to reflect the generally accepted principle that youths should not be subject to a term of imprisonment and that the Youth Court should continue to exercise its discretion according to its existing powers to manage the behaviour of youths in such proceedings.

It is an essential requirement of the proposed offence that there be an intentional physical act, rather than an involuntary act, but the offence does not require a person to intend to be disrespectful to the court. The example given for this is where deliberately failing to stand when requested may be disrespectful, even if the person did not intend to cause disrespect by remaining seated. A person who has a physical impairment, which prevented 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 - a somewhat harsher penalty than NSW.  This is said by the Attorney-General to be:

"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."

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

The official transcript or official audio or video recording of the proceedings in which the alleged disrespectful conduct occurred are under the amendments proposed by the Bill able to be admissible in evidence in the summary proceedings. As a corresponding measure intended to support the existing powers of the court to deal with instances of contempt, the Bill also makes it clear that a person cannot be prosecuted for an offence for disrespectful conduct if that conduct is or already has been the subject of contempt of court proceedings against that person. .

The Attorney-General's Justification for the Legislation

According to the Attorney-General, the Bill acknowledges the importance of maintaining the administration of justice and preserving the authority and dignity of the courts:

"The Bill seeks to uphold 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." 

Further, the Attorney-General indicates in her second reading speech that,  there have been instances where defendants, families and witnesses even, have created a situation where abusive behaviour has occurred towards judicial officers and the like, justifying such legislation. The Law Society of South Australia is quoted as saying in its submission on the 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."

Some Criticsims of the NSW Bill by the Judiciary

In a media release (dated 6 July 2016), the Judicial Conference of Australia (the professional association of judges and magistrates in Australia ("the JCA")) raised some interesting observations on the NSW legislation, the legislation upon which the proposed SA Bill is based.

The JCA media release indicates the view that: "It is highly unlikely that the [NSW] Bill, if enacted, would cause any person to moderate behaviour that was disrespectful to a court" and goes on to quote Justice Steven Rares, President of the JCA: “The Bill is unnecessary, since all Courts already have ample powers to deal with behaviour amounting to disrespect as a contempt of Court”.

Further, in the media release, Justice Rares is reported as noting, that "a prosecution for the proposed offence will only occur much later and usually in a different court from that in which the disruptive behaviour occurred. The JCA is very concerned that the Bill appears to ignore the fact that the judge or magistrate hearing a case is best placed to deal with any disrespectful or disruptive behaviour in court that could have any inappropriate consequences."

The deterrent value of the offence was further questioned by Justice Rares who also said:

“It is unlikely that the legislation will have any deterrent effect. An accused person facing serious charges, with the potential of a lengthy jail term, is unlikely to be worried about the possibility that, if he or she does something disrespectful to the Court they might receive, at a much later time, a maximum of an extra 14 days on their sentence”.

The view of the JCA seems to be that where a government is concerned about the level of  "disrespectful conduct in court" it should consider clarifying the powers of the Courts to deal with those matters themselves, which they suggest would be preferable to legislation which gives power to the AG to bring proceedings long after a "disruptive horse has bolted".

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