Analysis of Liquor Offenses & Powers: Relevant Sections & Proposed Changes in Summary Acts, Exercises of Law

Download Analysis of Liquor Offenses & Powers: Relevant Sections & Proposed Changes in Summary Acts and more Exercises Law in PDF only on Docsity! ISSUES PAPER: REVIEW OF THE SUMMARY OFFENCES ACT October 2010 Legal Policy Division, Policy Coordination Department of Justice This paper is being released for discussion purposes only and any views expressed are not to be taken to represent the views of the Northern Territory Government, the Northern Territory Minister for Justice and Attorney-General or the Department of Justice. Issues Paper: Review of the Summary Offences Act 2 Contents Consultation.. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . 5 Stakeholder Consultations . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . 5 Summary of the Operation of Current Provisions . . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . 6 Summary of the Recommendations . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . 6 Submissions . . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . 5 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Objects of the Act . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . 6 Issues . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . 6 POLICY POSITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 (i) Duplication . . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . 7 (ii) Relevance.. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . 7 (iii) Status Offences . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . 7 (iv) Consistency with criminal law principles . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . 8 (v) Burden of Proof . . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . 8 (vi) Frequency of usage . . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . 8 (vii) More appropriate location elsewhere .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . 8 (viii) Penalties – general principles . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . 9 (ix) Penalties – reviewed . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 10 Other Options . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 10 Redrafting . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 10 Comparisons with other Jurisdictions . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 10 PUBLIC ORDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 LANGUAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 SUMMARY OFFENCES ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 1 . LIQUOR RELATED OFFENCES AND POWERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Part VIA drinking in public places . . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 17 Sections 45C – 45K . . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 17 Recommendation for Part VIA . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 17 2 . PUBLIC ORDER OFFENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Section 47 Offensive, &c., conduct. . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 18 Offensive Behaviour . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 18 Disorderly Behaviour . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 19 Indecent Behaviour.. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 19 Section 74A – Disorderly behaviour in public . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 21 Section 7 – Disorderly or offensive conduct or language . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 21 Section 6 – Public Nuisance .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 22 Section 392 – Offensive behaviour. . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 22 BREAKDOWN OF THE NORTHERN TERRITORY OFFENCE. .. . . .. . . .. . . .. . . .. . . .. . 23 Section 47(a) . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 23 Section 47(b) . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 24 Section 47(c) . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 24 Section 47(d) . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 24 Section 47(e) . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 25 Section 47(f) . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 25 THE FAULT ELEMENT OF THE OFFENCE . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 26 Section 47AA – Violent Disorder .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 27 Section 47AB – Threatening Violence . . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 28 3 . LOITERING OFFENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Section 47AC – Loitering By Sexual Offender .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 30 Section 47A – Loitering General Offence: .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 31 Section 47B – Loitering – Offence Following Notice . . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 32 Section 55 – Challenge to Fight. .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 34 Section 55A – Consorting Between Known Offenders . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 35 Section 56 – Offences . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . . .. . 36 Issues Paper: Review of the Summary Offences Act 5 Consultation Comments are sought from stakeholders and the general public concerning the operation of the Summary Offences Act (SOA) and options for the reform of that Act. To assist potential comment, the Department of Justice has prepared this issues paper. It contains a discussion of the contents of the current legislation and sets out a number of proposals concerning the possible reform of the legislation. Stakeholder Consultations For the purpose of developing this issues paper, consultations have been held with members of the NT Police, the Office of the Director of Public Prosecutions, Summary Prosecutions, Northern Territory Legal Aid Commission, NAAJA, CAALAS, the Criminal Bar, and the Law Society regarding the changes to the SOA. The Police, NAAJA and the Law Society have been particularly helpful and frank in discussions with the Department of Justice. Summary of the Operation of Current Provisions Attachment A contains a table listing each of the current provisions and its frequency of use. Summary of the Recommendations Attachment A also contains a summary of the proposals in relation to future policy. A more detailed discussion of the provisions is set out in the rest of this issues paper. Submissions Comments on the paper are sought. They should be sent by 14 January 2011 to: Acting Director, Legal Policy Department of Justice GPO Box 1722 Darwin Email: Policy.Doj@nt.gov.au The responsible officer is Mr Martin Fisher whose contact details are as follows: Telephone: 8935 7651 Email: martin.fisher@nt.gov.au Issues Paper: Review of the Summary Offences Act 6 INTRODUCTION “It is often said that history is best to be found in the rubbish tips. The Police Act is an active tip within which layer upon layer of the social history of our society can be found.”1 The Summary Offences Act (NT) (SOA) started life as the Police and Police Offences Ordinance in 1924. It was taken in a large part from the South Australian Police Act 1869. The parts of the Act relating to Police Procedure and duties were excised from the Act when the Police Administration Act was introduced. It has been through 95 re-enactments, with nearly half the Act being repealed, but still retains many outdated provisions, uses archaic language, and needs dragging into the 21st Century. The Act also needs to comply with the criminal responsibility provisions of Part IIAA of the Northern Territory Criminal Code (the Criminal Code). Objects of the Act The SOA provides a framework for lesser, non-indictable offences, dealing with largely minor anti-social behaviour and providing powers to Police to manage that behaviour. Issues • What framework should the Government have for these types of behaviours? • When and in what circumstances is it appropriate to criminalise nuisance behaviour? • What should the Government’s policy be regarding public order legislation? The SOA is a home for provisions dealing with public order and like matters and we need to ask these questions: (i) Which provisions should be retained? (ii) Which provisions should be replaced or rewritten? (iii) Which provisions should be removed? (iv) Are there any other offences which should be placed in the Act? Once these questions are answered then we ask: (v) Should the Act be merely amended, or repealed and replaced with another SOA. Whether called by that name or another, such as Public Order Offences Act or Summary Offences (Public Order) Act or something similar? (vi) Should the entire SOA be repealed and those offences worth keeping put into other more appropriate Acts, such as the Criminal Code, the Trespass Act, the Liquor Act and the Traffic Act? 1 Quoted from Burt CJ of the Western Australian Supreme Court. Issues Paper: Review of the Summary Offences Act 7 POLICY POSITIONS While some provisions in the SOA are in regular use, most offences currently in it should be repealed, amended or replaced for one or more of the following reasons: (i) Duplication Where an offence in the SOA is broadly similar to an offence in another Act, one of them can be eliminated. The reference to ‘deleterious drugs’2 for example is taken care of in the Misuse of Drugs Act. The various offences of stealing such as section 54 ‘Stealing Domestic Animals’ are generally covered by the Property Offences provisions contained in Part 7 of the Criminal Code. (ii) Relevance Some of these public order offences have their beginnings as far back as Henry VIII’s Act relating to Vagabonds of 15363, and the Tumultuous Petitioning Act 1661. Many of them seem now to have little relevance to contemporary society, for example “driving or propelling any wagon, cart, dray or coach or on any other carriage or vehicle whatsoever”4 or “engages in any prize fight”5 or “leaves his wife or child chargeable, or … without any means of support other than public charity”,6 or “makes any cellar, or any opening, door or window in or beneath the surface of the footpath of any street or public place”7. References to “canal, navigable stream, dock or basin.” and “wanders abroad”8 do not really sit well in the Northern Territory. These provisions, if still useful, should be rewritten in contemporary language, but if outdated and irrelevant, should be repealed. (iii) Status Offences Some offences are ‘status’ offences, punishing people for who they are and not for what their conduct is on a particular occasion. An example of this is “being a suspected person or reputed thief,” and being near various waterways such as canals, or any street9. This type of provision is traceable back to the Elizabethan Vagrancy Acts of 159710 which were used to control the poorer and ‘dangerous’ classes11 and later during the enclosures, to force the unattached and unemployed to work in the new factories during the Mercantile and Industrial Revolutions12. ‘Status’ offences are contrary to the principle that people should only be punished for what they do, not for who they are or what category they fit in to, and are generally not appropriate or acceptable today. The laws against begging and some loitering offences might be seen in this light. 2 s.56(1)(e) 3 27 Hen. 8, c. 25 (1536) 4 s.75(1)(d)(iv) 5 s.55(1) 6 s.57(1)(p) This offence dates back to the Poor Laws in the 16th Century. The Family Law Act, and the Care and Protection of Children Act have overtaken this provision. 7 s.89 8 s.57 9 s.57(1)(l) 10 39 Eliz., chapter 4 (1597) which dealt with the whipping of rogues and vagabonds, and the persecution of “outlandish people calling themselves Egyptians”, among other things. 11 L Radzinowicz A History of English Criminal Law and its Administration from 1750 vol 4 (1968) 1-42 12 See William Chambliss (1964)‘A Sociological Analysis of the Law of Vagrancy’ Social Problems, Summer, 67-77 Issues Paper: Review of the Summary Offences Act 10 of the penalty unit according to the Darwin CPI. Thus the actual fines will automatically keep pace with any annual inflation greater than approximately 1%. (ix) Penalties – reviewed The penalties in the offences have been reviewed. However, no firm view can be reached until positions are finalised concerning what offences are to be retained and, if so, the content of them. In general terms, penalties of imprisonment remain the same as exist currently . Fines penalties have been, as a general rule, adjusted as per the default formula contained in section 38DA of the Interpretation Act. For proposed penalties for offences that go outside of these general observations, there is a more detailed explanation in the part of the paper that deals with the offence. Other Options City Council and Local Government by-laws cover a lot of public order offences. So also do the Local Government Act, the Public Health Act, the Trespass Act, the Litter Act, the Nudity Act, the Places of Public Entertainment Act, and the Observance of the Law Act. Sometimes these offences overlap or contain inconsistencies. The rules, regulations and laws about dogs are examples of this. Some practitioners have suggested that offences in the above Acts be placed in the SOA, while others suggest the reverse, that various offences in the SOA should be placed in the other Acts. Redrafting Should the offences in some provisions be retained there will be a need to redraft them. This will be to ensure a contemporary form and consistency with the criminal responsibility provisions of Part IIAA of the Criminal Code. Anachronisms such as references to ‘servants’ and ‘picklock, crow, jack bit or other implement of housebreaking’, should be removed or changed to a modern reference. Definitions and terminology should be standardised regarding ‘premises’ and ‘public place’, municipalities, shires and references to the Police force. The terminology of the Act is invariably masculine and should where ever possible be gender neutral. It should be noted in passing however that there is a great deal of opposition to making the provisions consistent with Part IIAA from both defence practitioners and Police. This is generally because of a perception by both parties that Part IIAA adds another level of complexity to otherwise simple legislation, is confusing and unnatural, and will make the legislation harder to understand. It is, however, Government Policy to make legislation Part IIAA compliant. Comparisons with other Jurisdictions Victoria, New South Wales, SA, Queensland and New Zealand have a SOA and Tasmania still has its Police Offences Act. Western Australia and the Australian Capital Territory on the other hand, have repealed their summary offences Acts and placed the provisions they wished to keep into other Acts. The ACT includes most of its summary offences in its Crimes Act, as does WA in its Criminal Code. Issues Paper: Review of the Summary Offences Act 11 The jurisdictions have however retained very different Acts. While there are some offences common to all, such as the offences of ‘Disorderly Behaviour’ and ‘loitering’ (however named), all jurisdictions have included a number of different offences in their respective Acts, and sometimes have very different provisions for the same or similar offences. Some jurisdictions include offences in their summary offences legislation that the NT has placed in different Acts. For example SA includes ‘Assault Police’ in its Summary Offences Act, whereas the NT has the offence in the Criminal Code and also in the Police Administration Act. Some jurisdictions have specific parts and sections. For example NZ and Queensland include a separate part for graffiti offences26 in their summary offences legislation, whereas the NT has included an offence of graffiti among other offences including ‘bill posting’ in section 75(1)(g)27 . Some jurisdictions have provisions in their summary offences legislation which do not exist at all in NT. 26 Queensland has Summary Offences Act 2005 (QLD) ss23A – 23E regarding selling paint cans and Part 3 ‘Removal of Public Graffiti’ sections 27 – 45 regarding the offence of Graffitiing and the appointment of State Graffiti Removal Officers. NZ has ss11A & 11B of Summary Offences Act 1981. 27 “writes upon, soils defaces or marks any building, wall or fences with chalk or paint…” Issues Paper: Review of the Summary Offences Act 12 PUBLIC ORDER “I don’t care what they do as long as they don’t do it in the street and frighten the horses”28 ‘Public Order’ is central to what the SOA is about. Public order offences are those offences, generally of a less serious nature, that relate to conduct in, enjoyment of, and passage through public and other places. The offences include ‘disorderly behaviour’, ‘offensive behaviour’, and ‘loitering’, and as well as criminalising certain behaviour, these offences give Police necessary powers to direct the public or individuals for the protection of the members of the public. The offences rely to a great extent on Police perception of a situation, their use of common sense and restraint, and ultimately their use of discretion in acting on that assessment. The public order provisions are purposefully vague in order that the behaviour in question is subject to the discretion of the Police, and after that, the discretion of the courts. Strict enforcement is not desirable as situations differ from time to time and place to place and flexibility in interpretation is necessary. Behaviour that would constitute an offence in one situation may not in another. This of course leads to a certain amount of uncertainty but that is the price we pay for the flexibility we need from these laws. In England the Public Order Act 1986, seemingly rather circuitously but in fact realistically, defines “offensive conduct” to mean “conduct the constable reasonably suspects to constitute an offence under this section.”29 The conduct in England also requires the presence of an actual victim. This is not always the case in other jurisdictions. Public order policing extends from policing public protests and processions30, through to policing unruly or offensive behaviour outside night clubs or pubs and places of recreation or entertainment. There is an obvious link between alcohol and public disorder, and research shows there is an over-representation of marginalised and disadvantaged groups including youths, the mentally ill, and indigenous people in public order offending31. Public Order Offences also include the loitering offences, begging, busking, various violence offences, consorting, and offences regulating traffic and prohibiting nuisances in public spaces and thoroughfares. There is a high volume of public order/public nuisance offences dealt with in the Courts with most being uncontested. The vast majority of offenders receive a fine and many are dealt with ex-parte. In the NT many of these offences are dealt with by infringement notices. These offences are at the confluence of individual rights and public security. Justice Oliver Wendell Holmes said “each individual should have the maximum liberty consistent with the equal liberty of all other individuals.” The State must balance the moral right of citizens to speak their minds in a non-provocative way on matters of public or political concern with the right of people to go about their business unmolested and unthreatened. Public Order laws are where a citizen’s liberty meets the power and authority of the State and particular care must be taken in those areas where this occurs.32 There are, and will continue 28 Comment attributed to a Mrs Patrick Campbell by Justice Kearney in Pregelj v Manison (1988) 31 A Crim R 383 @ 400. 29 Section 5(5) Public Order Act 1986 (UK) 30 See for example the Queensland approach to protest in the 1970s. 31 Cunneen C. 2001, Conflict, politics and crime: Aboriginal Communities and the Police, Allen & Unwin, Sydney; Cunneen C. & White, R 2007, Juvenile Justice: youth and crime in Australia, 3rd edn, Oxford University Press, Melbourne; see also Luke, G & Cunneen, C, 1998, Sentencing Aboriginal People in the Northern Territory: A statistical Analysis, Northern Territory Aboriginal Legal Aid Service. 32 Anderson v Attorney General (NSW) (1987) 10 NSWLR 198; 27 A Crim R 103 @ 107 per Kirby J. Issues Paper: Review of the Summary Offences Act 15 behaviour offence from the language offence and also enables better monitoring of the use of the charges. The New Zealand, SA and the NSW behaviour and language provisions are separated, and in 2008 the Queensland Crime and Misconduct Commissions Report on the Queensland Public Nuisance Offence (section 6 Summary Offences Act 2005) recommended that there be a separate offence covering offensive language only. Issues Paper: Review of the Summary Offences Act 16 SUMMARY OFFENCES ACT The SOA can be broken down to seven different categories of behaviour. These are: (1) liquor related offences and powers (see page 17); (2) public order offences (see page 18); (3) loitering offences (see page 29) (4) noise provisions (see page 49); (5) trespass offences (see page 52); (6) dishonesty offences (see page 53); (7) indecency or obscenity offences (see page 60); and (8) miscellaneous offences (see page 64). Issues Paper: Review of the Summary Offences Act 17 1 . LIQUOR RELATED OFFENCES AND POWERS Part VIA drinking in public places Sections 45C – 45K These provisions are used continually by NT Police and are relied on to regulate and control drinking in public space both in the cities and in rural areas. There is a procedure detailed in the section for special licensing and exemption certificates to cover special events. Section 45D prohibits drinking liquor in a public place that is within two kilometres of licensed premises and the rest of Part VIA outlines the Police powers to enforce this ‘two kilometre rule’. There have been only 11 prosecutions for this offence in the last ten years and these matters seldom go to Court. Police tend not to give out notices44 to appear in Court under this section as the penalty for non-observance of the law is forfeiture of the seized alcohol which generally occurs anyway. The Police tip the liquor out at the scene or, if tipping it out would inflame a touchy situation they instead just confiscate it, remove it from the area and then destroy it. Nothing is generally done about the people drinking, and they are not charged with any offence unless a disturbance is created. Since these offences were enacted other restrictions have evolved in the current Liquor Act, with still more since the recent introduction of the Northern Territory National Emergency Response Act 2007(Cth), with new laws regarding Prescribed Areas and Restricted Areas, and new restrictions on liquor sale and consumption. The two kilometre rule is still generally regarded as necessary and after suitable updating, the whole of the ‘Drinking in Public Places’ section of Part VIA of the SOA, would be better placed in the Liquor Act. This could occur as part of the proposed re-write of the Liquor Act that is also under current development by the Department of Justice. These provisions have not been reviewed here as they will be reviewed as part of the aforementioned rewrite. Recommendation for Part VIA The whole of Part VIA of the SOA be placed in the proposed new legislation that will replace the Liquor Act. 44 See section 45G Issues Paper: Review of the Summary Offences Act 20 “In my opinion, it is important to bear steadily in mind the basic concept which surrounds human affairs, and that is, acceptable behavioural patterns are in no small measure influenced by time, place and circumstance.”55 The original version of these offences in the Vagrancy Act (UK) proscribed using threatening, abusive or insulting words, and required an intent to provoke a breach of the peace.56 This intention to provoke a breach of the peace was omitted from later versions of the offences in the late 1920s and early 1930s by various jurisdictions at the same time as the offence was widened to include riotous, disorderly, indecent, or offensive behaviour, and to include fighting. This behaviour might involve no threat of a breach of the peace but was regarded as contrary to good order.57 There might however be no threat to a breach of the peace because the fear of vulnerable members of the public might prevent them reacting to the behaviour, or they might forbear reacting due to their greater self control, but it could still be behaviour that merited the intervention of the criminal law. The old requirement of the offender having the intent to provoke a breach of the peace was removed from the NT legislation, but the requirement is still sometimes a feature of the legislation on the same topic in other jurisdictions.58 Some jurisdictions still have a requirement relating to a likely breach of the peace, but that is also not required in the NT. In New Zealand the offences of ‘disorderly behaviour’ and ‘offensive behaviour or language’ are now separated59. Section 4 of the Summary Offences Act 1981 (NZ), the ‘disorderly behaviour’ provision, makes liable to imprisonment or a fine anyone who: “in or within view of any public place, behaves, or incite or encourages any person to behave, in a riotous, offensive, threatening, insulting, or disorderly manner that is likely in the circumstances to cause violence against persons or property to start or continue”. Thus the proscribed behaviour requires a likelihood that it will lead to violence against persons or property. NZ’s section 5, the ‘offensive behaviour or language’ provision however requires an intent to “threaten, alarm, insult or offend” the addressed person. This offence only carries a fine. Thus the more serious behaviour, section 4, that is likely to cause violence, carries imprisonment, and the less serious section 5 which, (including language), only threatens, alarms, insults or offends, carries only a fine. New Zealand also has the offences of ‘Disorderly Behaviour on Private Premises’, and ‘Disorderly Assembly’, which are addressing the problem of gangs such as the mongrel mob.60 The corresponding West Australian ‘disorderly behaviour’ provision is section 74A Criminal Code 1913 (WA). The offence carries a $6000 fine and does not carry imprisonment.61 55 Pregelj v Manison; Wurramurra v Manison (1988) 31 A Crim R 383, (1987) FLR 346 & 51 NTR 1 56 If any legal expression is a work of art it is ‘breach of the peace’. Courts have refined the concept to establish that it is allied to harm, actual or prospective, against persons or property. 57 See Coleman v Power (2004) 220 CLR per Gleeson CJ. 58 See for example s. 59 of the Police Act 1892 (WA), s.17 of the Summary Offences Act (Vic), s22 & 23 Summary offences Act 1953 (SA); and s.12 Police Offences Act 1935 (Tas) 59 Sections 3 & 4 of the Summary Offences Act 1981 (NZ) 60 s.5 & s5A Summary Offences Act (NZ) 61 WA has also removed imprisonment as a penalty for stealing or receiving goods worth less than $1000. See section 426(4) Criminal Code WA. Issues Paper: Review of the Summary Offences Act 21 Section 74A – Disorderly behaviour in public (1) In this section – behave in a disorderly manner includes – (a) to use insulting, offensive or threatening language; and (b) to behave in an insulting, offensive or threatening manner. (2) A person who behaves in a disorderly manner – (a) in a public place or in the sight or hearing of any person who is in a public place; or (b) in a police station or lock-up, is guilty of an offence and is liable to a fine of $6,000. In WA in order to reduce prison numbers, there is now a policy of not allowing prison sentences of less than six months for minor offending. The offence of ‘Disorderly behaviour’ therefore does not provide imprisonment as an option but instead has a large maximum fine of $6000. Other public order offences however do carry imprisonment. The offence of ‘Threatening Violence’ (section 74) carries 12 months, ‘Obscene acts in Public’ (section 202) carries 12 months, and ‘Indecent acts in public’ (section 203) carries nine months imprisonment. SA has perhaps the most streamlined section. Section 7 – Disorderly or offensive conduct or language (1) A person who, in a public place or a police station – (a) behaves in a disorderly or offensive manner; or (b) fights with another person; or (c) uses offensive language, is guilty of an offence. In the SA Act, ‘disorderly’ behaviour is defined62 to include ‘riotous’ behaviour, and ‘offensive’ behaviour includes ‘threatening abusive or insulting’ behaviour. The offence carries three months imprisonment. ‘Indecent behaviour and gross indecency’ (section 23) also carries three months whereas the penalty for ‘indecent language’ (section 22) only carries a fine of up to $250. NSW has separated the offences of ‘offensive conduct’ and ‘offensive language’ and does not have a disorderly behaviour prohibition, (there is however section 11A ‘Violent Disorder’, which is the equivalent of the NT section 47AA.) The ‘offensive conduct’ provision provides that merely using offensive language does not qualify as ‘offensive conduct’. In NSW ‘Offensive conduct’ (section 4 Summary Offences Act 1988) carries three months imprisonment whereas ‘’Offensive language’ (section 4A) carries a fine or up to 100 hours of community service. Queensland, after the decision of Coleman v Power 63 in which a conviction for using insulting words was set aside, repealed their old Vagrants, Gaming and Other Offences Act 1931 (Qld) 62 Section 7(3) 63 (2004) 220 CLR 1. Issues Paper: Review of the Summary Offences Act 22 and introduced the Summary Offences Act 2005 (Qld). This Act includes the offence of Public Nuisance (section 6)64. Section 6 – Public Nuisance (1) A person must not commit a public nuisance offence … (2) A person commits a public nuisance offence if – The person behaves in; (i) a disorderly way; or (ii) an offensive way; or (iii) a threatening way; or (iv) a violent way; and (b) the person’s behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public. The offence carries six months imprisonment and or 10 Queensland penalty units ($1,000). Behaving in an offensive way is said to include using offensive, obscene, indecent, or abusive language. Behaving in a threatening way includes using threatening language. A complaint from the public is not required before a Police officer can start proceedings. Thus the behaviour must not only be of a certain anti social type but it must also interfere or be likely to interfere with public enjoyment of a public space. This requirement of the likely interference of the public’s enjoyment of public space reinforces the need for a potential victim to the offence and should be included in the new NT section dealing with this type of behaviour. It should not be a public nuisance if there is in fact no public to witness the nuisance. Queensland now has the most recent version of this offence. The Queensland legislation has removed the offence of ‘disturbing the public peace’, and also removed any mention of Police stations, dwelling houses, dressing rooms, training sheds or clubhouses. There is also no reference to ‘disrupting the privacy of another person’. The omission of Police stations from the offence is another matter however and as a Police station is not a public place and a lot of nuisance behaviour occurs within a Police station, the new NT offence should have Police stations included. The ACT has section 392 Crimes Act 1900 (ACT) ‘Offensive Behaviour’ which carries no imprisonment but has $1000 fine. The offence does not include ‘disorderly’ behaviour. Section 392 – Offensive behaviour A person shall not in, near, or within the view or hearing of a person in, a public place behave in a riotous, indecent, offensive or insulting manner. As has been shown there is a wide variety of ways the different Australasian jurisdictions have approached this behaviour. 64 Section 6 Summary Offences Act 2005 (Qld) was introduced originally as section 7AA Vagrants, Gaming and Other Offences Act 1931 (Qld) in 2003, taking effect from April 1 2004. Then when the Vagrants Act was repealed the offence was carried over in identical terms to section 6 Summary Offences Act 2005 (Qld) Issues Paper: Review of the Summary Offences Act 25 Section 47(e) ‘Unreasonably Cause Substantial Annoyance’ has been charged 253 times in the last ten years. Some people question if this should still be an offence in a democracy, even with the ‘unreasonably’ as a precursor. Being unreasonable or very annoying should not be a criminal offence. There was disquiet and ridicule in NSW during the recent visit of the Pope for World Youth Day when being annoying was briefly made criminal behaviour. That provision was swiftly repealed. Section 47(f) ‘Unreasonably Disrupt Privacy’ has been charged 32 times in the last ten years. This is the ‘Peeping Tom’ offence and this behaviour is not properly covered by the other section 47 offences. Disrupting privacy is still a serious matter and should be dealt with separately with a ‘Peeping Tom’ provision. Penalty for section 47 The offences in section 47 carry $2000 and six months imprisonment. As can be seen from the above discussion the punishment for this offence varies between the jurisdictions and ranges from just a fine to six months imprisonment. Western Australia,70 and the ACT71 prescribe only a fine. NSW72 and NZ73 have no imprisonment and only a fine for the language component of the offence, but three months imprisonment for the behaviour. SA,74 provides for 3 months imprisonment for behaviour and language. Victoria75 has only a fine for disorderly conduct, but up to six months (for a third offence) imprisonment for ‘obscene, indecent or threatening’ language or behaviour76. Queensland77 and the NT prescribe six months. The NT is thus shown to be at the heavier end of punishment for this offence. As has been pointed out in discussions with NAAJA and members of the NT defence bar, the offence impacts mainly on indigenous people. Although actual imprisonment is not often given for this offence, it affects indigenous offenders disproportionately in other extended areas. For example where suspended sentences are breached by section 47, which at present is an offence carrying a term of imprisonment, the fact that section 47 itself carries a term of imprisonment increases the gravity of the breach and can lead to reimposition of the outstanding suspended sentence. It would seem that if the term of imprisonment were removed from the offence it would go some way towards lessening the appalling imprisonment rates for indigenous offenders. There is often the unfortunate situation where an initial apprehension for disorderly behaviour or offensive language lead to an altercation with arresting Police and consequent charges of ‘resist Police’ and then ‘assault Police’. The vast majority of these offences are caused when alcohol is involved. A lessening of the criminality of the initial triggering offence of ‘disorderly behaviour’ or ‘offensive language’ would lead to less confrontation and consequently less escalation of the situation and the consequent further serious charges. This is especially so in the very common situations of offenders directing bad language at Police, generally in situations where alcohol is involved, and the situation deteriorating rapidly to a confrontation 70 Section 74A Criminal Code Compilation Act 1913 (WA) 71 Section 392 Crimes Act 1900 (ACT) 72 Sections 4 & 4A Summary Offences Act 1988 (NSW) 73 Sections 3 & 4 Summary Offences Act 1981 (NZ) 74 Section 7 Summary Offences Act 1953 (SA) 75 Section 17A Summary Offences Act 1966 (Vic) 76 Section 17 Summary Offences Act 1966 (Vic) 77 Section 6 Summary Offences Act 2005 (Qld) Issues Paper: Review of the Summary Offences Act 26 with Police. Police, without any malice, call these three charges when committed together “the trifecta” and call the two charges of disorderly behaviour and assault Police when committed together “the Quinella”. The more extreme or serious examples of this offence are almost always accompanied by other more serious offences carrying heavier penalties, and this offence tends to be either subsumed in the other offences and becoming part of an aggregate sentence, or this particular charge gets dropped as being duplicitous. The separation of the behaviour aspect from the language aspect in the offence would offer the opportunity for a lesser penalty where there is no violence threatened and the offence is caused solely by the language used. In a society such as the Northern Territory, unless violence is involved or implied, an offence that consists only of language should not carry imprisonment. In the NT in 2009 of 317 people convicted of section 47 offences only 51 people (16%) spent time in gaol with the median time being less than a month. The majority (217) were given fines. It is recommended the maximum penalty for the disorderly behaviours should be more in line with the other jurisdictions at three months (with the maximum fine being 25 penalty units as per section 38DA of the Interpretation Act). THE FAULT ELEMENT OF THE OFFENCE In Pregelj v Manison Nader J. said, regarding a couple charged with ‘offensive behaviour’: “By virtue of s 31 of the NT Code, the appellants would not be criminally responsible for that event unless they intended it or relevantly foresaw it. “Intended” in this context means, not that they desired it to happen, but that they did the act with knowledge, in its wide sense, that offence to someone would be an actual or possible consequence.” Guilt then is established by either the defendant having the intent to offend by the conduct, or foreseeing the causing of offence as a possible consequence of the conduct. Recommendations for section 47 1. ‘Disturbing the public peace’, ‘unreasonably cause substantial annoyance’, ‘unreasonably disrupt the privacy of another person’, and fighting should be removed from the section. 2. The offence should include behaviour in a Police station as well as in a public place. 3. The offence should have ‘recklessness’ as the fault standard. 4. The offence should include a similar requirement to Queensland’s requirement of the behaviour interfering with the public’s enjoyment of public space.78 5. The provision should follow the NSW and NZ structure of separating the language provisions from the behaviour provisions. 6. The language offence should not carry imprisonment. 7. The behaviour offence should carry a maximum penalty of 3 months. 8. There should be a separate ‘Peeping Tom’ offence. 78 Section (6)(b) ’the person’s behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public’. Issues Paper: Review of the Summary Offences Act 27 Section 47AA – Violent Disorder (1) A person is guilty of an offence if: (a) the person is one of two or more people engaging in conduct that involves a violent act; and (b) the conduct would result in anyone who is in the vicinity and of reasonable firmness fearing for his or her safety; and (c) the person: (d) intends or knows that the conduct involves a violent act and would have the result mentioned in paragraph (b); or (e) is reckless as to whether the conduct involves a violent act and would have that result. Maximum penalty: Imprisonment for 12 months. (2) To avoid doubt: (a) to establish the offence, it is unnecessary to prove that each of the two or more people individually engaged in conduct that involves a violent act and would have the result mentioned in subsection (1)(b); and (b) no person of reasonable firmness need actually be, or be likely to be, present in the vicinity for the offence to be committed; and (c) the offence may be committed in private or public places; and (d) subsection (1)(c) does not affect the determination of the number of people mentioned in subsection (1)(a). (3) The offence is an offence to which Part IIAA of the Criminal Code applies. Note for subsection (3) Part IIAA of the Criminal Code states the general principles of criminal responsibility (including burdens of proof and general defences) and defines terms used for offences, for example, “conduct”, “intention” and “recklessness”. (4) In this section: conduct that involves a violent act includes: (a) conduct capable of causing injury to a person or damage to property (whether or not it actually causes such injury or damage); and (b) a threat to engage in such conduct. This offence originally was the offence of ‘Affray’. The offence in its present form was enacted in 2006 in response to the disorders in Yuendumu and Wadeye. It was written as part of the 2006 Anti Gangs legislation so as to be compliant with Part IIAA of the Criminal Code. It has proved itself to be a useful provision covering much violent group activity that is less serious than a riot or serious assaults. The offence requires that: (a) the person is one of two or more people engaging in conduct that involves a violent act. Issues Paper: Review of the Summary Offences Act 30 (5) This section does not apply in relation to a person who, whether in the company of other persons or not, is – (e) picketing a place of employment; or (f) demonstrating or protesting about a particular issue; or (g) speaking, bearing or otherwise identifying with a banner, placard; or sign or otherwise behaving in a way that is apparently intended to publicise the person’s view about a particular issue. This safeguards political or industrial protest which should be protected in a democracy. Section 47AC – Loitering By Sexual Offender (1) In this section, sexual offence means: (a) an offence against Division 2 of Part V of the Criminal Code; (b) an offence against sections 188(2)(k), 192, 192B or 201 of the Criminal Code; (c) an offence of: (i) counselling or procuring; (ii) aiding or abetting the commission of; (iii) conspiring to commit; (iv) attempting to commit; or (v) being an accessory after the fact to, such an offence. (2) A person who: (a) has been found guilty of: (i) a sexual offence; (ii) murder where there are reasonable grounds to believe that a sexual offence was also committed on the victim; or (iii) an offence against section 5084; and (b) is found, without reasonable excuse, idling or lingering about in or near: (ii) a school, kindergarten or child care centre; or (iii) a public place regularly frequented by children and in which children are present at the time of the loitering, is guilty of an offence. Penalty: $5,000 or imprisonment for 12 months. (3) If a person has at any time been convicted of an offence against a law of a State or another Territory of the Commonwealth which creates an offence substantially similar to a sexual offence, the conviction for the offence against that law shall be taken for the purposes of this section to be a conviction of a sexual offence. This is in fact a ‘status offence’ and is intended to be such. The status of the person being the fact that the person has been convicted of a sexual offence. In DPP v Field [2001] VSC 472, it was held it is not necessary to prove the intention of committing a further sexual offence. Other loitering offences require ‘intent’ whereas this 84 ‘Indecent exposure’ s.50 Summary Offences Act Issues Paper: Review of the Summary Offences Act 31 offence is made out if the defendant (having the requisite prior offence or offences) is found “without reasonable excuse, idling or lingering about in or near…” This reverses the onus and the person has to have a reasonable excuse to be where he is. It has been suggested that this offence has been overtaken by the new Child Sex Offenders Legislation the Child Protection (Offender Reporting and Registration) Act, but although that Act prohibits child related employment and demands registration of “sexual offenders” among other things, it does not necessarily prohibit ‘idling or lingering’ around a school or similar place. There have been nine prosecutions for this offence since 2000. NSW and Tasmania have similar provisions85 carrying up to 2 years imprisonment. The maximum fine (of $5,000) is less than the default penalty level of 100 penalty units provided for in the Interpretation Act. There appears to be no good reason for this variance. Recommendation for section 47AC This provision should be retained. The maximum penalty should remain at 12 months but the maximum fine of $5000 should be removed from the offence so that the default fine level of 100 penalty units in section 38DA of the Interpretation Act applies. Section 47A – Loitering General Offence: (1) A person loitering in any public place who does not give a satisfactory account of himself when requested so to do by a member of the Police Force shall, on request by a member of the Police Force to cease loitering, cease so to loiter. Penalty: $2,000 or imprisonment for six months, or both. (2) Where a person is loitering in a public place and a member of the Police Force believes, on reasonable grounds: (a) that an offence has been or is likely to be committed; or (b) that the movement of pedestrian or vehicular traffic is obstructed or is about to be obstructed, by that person or by any other person loitering in the vicinity of that person; (c) that the safety of the person or any person in his vicinity is in danger; or (d) that the person is interfering with the reasonable enjoyment of other persons using the public place for the purpose or purposes for which it was intended, the member of the Police Force may require any person so loitering to cease loitering and to remove from that public place any article under his control, and a person so required shall comply with and shall not contravene the requirement. Penalty: $2,000 or imprisonment for six months, or both. 47A(1) has been charged nine times and 47A(2) has been charged 174 times. 47A(1) is needlessly intrusive and is an example of a ‘status offence’. It allows the Police, without the requirement to give a reason, to ask anybody they don’t like the look of, to give a ‘satisfactory account of themselves’. This is a hangover from the Poor Laws and the Vagrancy Act. It is open to the abuse and victimisation of people according to who they are and what 85 Section 11G Summary Offences Act 1988 (NSW) & section 7A Police Offences Act 1935 (Tas) Issues Paper: Review of the Summary Offences Act 32 they look like rather than what they are doing. It can be used unfairly particularly regarding Indigenous people in towns. Subsection 47A(2) on the other hand requires that a member of the Police ‘believes on reasonable grounds’ that an offence has been or is likely to be committed, an obstruction is being caused, or that something is happening or about to happen that needs the intervention of the Police. This construction is much more reasonable than the status offence of section 47A(1). The section requires that the Police officer ‘believes on reasonable grounds’ that an offence has been or is likely to have been committed. This is a high standard and places much evidentiary responsibility on the Police for what is a preventative provision. It would be preferable to have ‘reasonably suspects’ as the mental standard required from the Police before they request someone to move on. ‘Suspects’ is a lower standard of conviction than ‘belief’. ‘Belief’ requires an element of certainty which would be unrealistic and unnecessary for the way the offence is used. The offence as it used to be expressed is “fail to cease to loiter”, meaning there is no offence if the person moves on. The provision is used more as a preventative power than a criminal offence and the higher mental standard of conviction required from the Police officer to ‘believe’ that a criminal offence has been or is likely to be committed tends to make the power too technical and difficult to justify. It is a discretionary and preventive power that should not be made too hard to use. The offences in the other jurisdictions have developed quite differently from each other although displaying the same roots. Tasmania86 has a similar section carrying 6 months imprisonment. Victoria’s ‘Loitering with intent’ by a ‘reputed thief’ or convicted drug offender (section 49B) carries 2 years, while disobeying the direction by police to move on’ (section 6) carries a fine. South Australia’s ‘Order to move on or disperse’ (section 18) carries 3 months. New Zealand has an intent based provision87 carrying a fine with imprisonment for three months for a second offence. Recommendations for section 47A 1. Subsection 47A(1) should be repealed and subsection 47A(2) should remain. 2. The Police when enforcing the provision should not be required to use the word “loiter”, rather they should use expressions such as “move away” or “move along”. 3. ‘Reasonably suspects’ should replace ‘believes on reasonable grounds’. 4. There should be a provision similar to section 6(5) of the Victorian Summary Offences Act which safeguards Political or Industrial action. (see above p29) 5. The fault element should be intent. 6. The maximum penalty should remain at 6 months with the default maximum monetary penalty of 50 penalty units to apply. Section 47B – Loitering – Offence Following Notice (1) A police officer may give a written notice to a person who is loitering at a public place: (a) requiring the person to stay away from the place or an area including the place for a specified period not exceed 72 hours from the time the notice is given; and (b) specifying the place or area, and the period, as is reasonable in the circumstances; and 86 Section 7 Police Offences Act 1935 (Tas) 87 Section 28 Summary Offences Act 1981 (NZ) ‘Being found in public place preparing to commit crime’ Issues Paper: Review of the Summary Offences Act 35 Section 55A – Consorting Between Known Offenders (1) A person is guilty of an offence if: (a) the Commissioner gives a written notice to the person under this section prohibiting the person, for a specified period not exceeding 12 months, from one or both of the following as specified in the notice: (i) (i) being in company with one or more specified persons; (ii) (ii) communicating in any way (including by post, fax, phone and other electronic means, and whether directly or indirectly) with one or more specified persons; and (b) the person contravenes the notice. Maximum penalty: Imprisonment for two years. (2) It is a defence for an offence against subsection (1) if the defendant proves that: (a) the defendant has a reasonable excuse; or (b) the defendant, having unintentionally associated with a person specified in the notice, terminated the association immediately. (3) In subsection (2), a reference to an association with the specified person is a reference to being in company, or communicating, with the specified person in contravention of the notice. (4) The Commissioner may give a notice to a person (the notified person) under subsection (1) only if: (a) the notified person and each person specified in the notice (a specified person ) have each been found guilty of a prescribed offence; and (b) the Commissioner reasonably believes that giving the notice is likely to prevent the commission of a prescribed offence involving: (i) two or more offenders; and (ii) substantial planning and organisation. (5) The notice must specify: (a) the notified person’s obligations under the notice; and (b) the consequences of contravening the notice. (6) The Commissioner must ensure all reasonable steps are taken to explain to the notified person (in language the notified person can readily understand) the matters mentioned in subsection (5)(a) and (b). (7) In addition, the Commissioner must give each specified person a notice under subsection (1) imposing similar obligations in relation to prohibiting the specified person from one or both of the following: (a) being in company with the notified person and each of the other specified persons; (b) communicating with the notified person and each of the other specified persons. (8) However, the Commissioner may disregard subsection (7) in exceptional circumstances. Issues Paper: Review of the Summary Offences Act 36 (9) A notice under subsection (1) is not invalidated by a failure to comply with subsections (6) to (8). (10) A reference to a prescribed offence in subsection (4) is a reference to an offence: (a) prescribed by regulation; and (b) the maximum penalty for which is imprisonment for ten years or more. This offence is part of the ‘anti gang’ legislative package and is “designed to stop organised, high level criminal group behaviour”90. The offence requires a notice to be given to the person directing him or her not to communicate with or be in the company of specified people. Both the person given the notice and the specified person must each have been found guilty of a prescribed offence91, (an offence for which the maximum penalty is ten years or more, and includes terrorism, murder, serious drug offences, piracy, and various child sex and pornography offences, etc.), and the notice can only be given if the Commissioner thinks that giving the notice is likely to prevent the commission of a planned offence. There is a defense of ‘reasonable excuse’ and it is a defense to the charge if the defendant, unintentionally having ‘associated’ with the specified person, immediately terminates the association. Police are concerned that the section is limited in respect of the offences to which it applies, and would like the prescribed offence to carry five years rather than ten years and for the subsection 55A(10)(a) be amended by substituting “and” with “or”.(meaning the prescribed offence must be either prescribed by regulation or have a maximum penalty of five years). This amendment desired by Police however is not consistent with the aims of the provision as indicated in the second reading speech which says the legislation is aimed at “serious criminals with a track record of highly-organised gang related activities”92. An offence carrying only five years would not be a serious enough offence and would unnecessarily widen the net by including relatively minor offenders. There have to date been no prosecutions under this section. Recommendation for section 55A This provision and the maximum penalty of 2 years should be retained. Section 56 – Offences (1) Any person who: (c) wanders abroad, or from house to house, or places himself in any public place, street, highway, court, or passage, to beg or gather alms, or causes or procures or encourages any child so to do; (e) has on or about his person, without lawful excuse (proof whereof shall lie upon the person charged), any deleterious drug, or any article of disguise; or (i) habitually consorts with reputed criminals, shall be guilty of an offence. Penalty: $500 or imprisonment for three months, or both. 90 Second reading speech. 91 Prescribed offences An offence against any of the following provisions is prescribed for section 55A(10)(a) of the SOA: Criminal Code sections; 54, 55, 66, 73, 125B, 125E, 131A, 132, 156, 160, 165, 176, 177, 202B, 202C, 202D, 211, 213, 228, 229, 231B, and 231C. Misuse of Drugs Act sections 5, 6, 7, 8 ,9 and 11. Firearms Act 61, 61A and 63A 92 Second reading speech by Dr Peter Toyne. Issues Paper: Review of the Summary Offences Act 37 This section catches many various and different offences, including begging, carrying drugs, possessing disguises, and consorting with criminals. Section 56(1)(c) This offence has been charged eight times between 2000 and 2007 and has not been charged since. This subsection criminalises begging or gathering alms. Begging is one of the old offences whose genesis was the Vagrancy Act 1824. It could be classed as a status offence, by criminalising poverty or homelessness, although the actual act prosecuted is begging. Some jurisdictions have abolished it as an offence, although Victoria after initially considering abolishing the offence, re-enacted it in 2006. Research around the world suggests a complex relationship between poverty, begging, drug use, psychiatric and physical disability and homelessness93. Begging is recognised as a problem by the media, politicians, shopkeepers, Police, welfare agencies, the general public, and the actual people who beg.94 Some see begging as an expression of broader social problems of homelessness, unemployment or discrimination, which if addressed would mean that begging would no longer be an issue. Others see begging as being symptomatic of crime and public order problems and say begging is chosen by the beggar. Begging in the Northern Territory is overwhelmingly an indigenous problem and generally coincident with alcohol abuse. It is different from the southern jurisdictions where research by the Australian Institute of Criminology has shown beggars to be predominantly young, male and socially marginal. NAAJA says the offence targets their clients and penalises those who are least able to afford fines. They suggest it should be either repealed or replaced by an offence of seeking donations under false pretences or fraud. NAAJA say the Police do not need this offence to move people on as there are other powers they can use, such as the current section 47 or whatever replaces it.95 Arguments for retaining the law against begging include that it is a public nuisance, is not necessary in a welfare state, and having this law discourages the practice. Police say having an offence against begging is necessary, as even though there are very few arrests for begging, having the offence on the books enables them to move people along from public places where they may be begging and being a nuisance, and having this power has meant that begging is not seen as a real problem in Darwin. The Victorian provision is short. Section 49A(1) says: “A person must not beg or gather alms”. It could be argued the reference to ‘gather alms’ is superfluous. Victoria’s subsection 49A(2) says a child must not be procured or encouraged to beg. Soliciting donations for charities and busking are implicitly excluded from this.96 93 Kate Driscoll and Liz Wood, A Public Life: Disadvantage and Homelessness in the Capital City (1998). Commissioned by the City of Melbourne on behalf of the Royal Melbourne Institute of Technology Centre for Applied Social Science Research. See also Caslon Analytics Begging @ http://www.caslon.com.au/beggingnote.htm accessed 6 January 2010 94 Philip Lynch ‘Understanding and Responding to Begging’(2005) MULR 16. http://www.austlii.edu.au/au/journals/ MULR/2005/16.html#Heading40 accessed 20 November 2009 95 It is suggested that it be replaced by Queensland’s section 6 ‘Public Nuisance’. 96 As distinct from the Queensland Act Section 8(2) which provides explicitly for the exception of charities registered under the Collections Act 1966, and for buskers authorised by the local government. Issues Paper: Review of the Summary Offences Act 40 Section 57 – Offences After Finding of Guilt Under Section 56, &c . (1) Any person who: (a) having been found guilty of an offence under section 56 commits any of the offences mentioned in that section; (b) solicits, gathers, or collects alms, subscriptions, or contributions under any false pretence, or wanders abroad and endeavours by the exposure of wounds or deformities to obtain or gather alms; (d) pretends to tell fortunes, or uses any subtle craft, means, or device, by palmistry or otherwise, to deceive and impose upon a person; (e) has in his custody or possession, without lawful excuse (proof whereof shall be upon the person charged), any picklock, key, crow, jack, bit, or other implement of housebreaking; (l) being a suspected person or reputed thief, is in, on or near, with intent to commit any offence triable on information in the Supreme Court or any indictable offence, any river, canal, navigable stream, dock, or basin, or any quay, wharf, or warehouse near or adjacent thereto, or any street, highway, or avenue leading thereto, or any place of public resort, or any avenue leading thereto, or any street, highway, or place adjacent; or (p) leaves his wife or child: (xvi) chargeable, or whereby either of them becomes chargeable, to the public; or (xvii) without means of support other than public charity, shall be guilty of an offence. Penalty: $1,000, or imprisonment for six months, or both. (2) Where any person is found guilty under paragraph (e) of subsection (1), any picklock, key, crow, jack, bit, or other implement of housebreaking in the custody or possession of that person shall be forfeited to the Territory. (4) Where any person is found guilty under paragraph (j) of subsection (1) any table or instrument of gaming at or with which he has played or betted contrary to the provisions hereof shall be forfeited to the Territory. (NB there is no paragraph (j)) (5) In proving under paragraph (l) of subsection (1), the intent to commit any offence therein specified, it shall not be necessary to show that the person charged was guilty of any particular act or acts tending to show his intent but he may be found guilty if from the circumstances of the case and his known character as proved to the Court it appears to the Court that his intent was to commit that offence. Apart from the antiquated language, and the incorrect cross reference to the non existent paragraph (j), there are a number of problems with this section. This is another section that includes many different offences. It includes among others: (a) Committing a second offence against the previous section; (b) Begging (again although this time with wounds or deformities); (c) Telling fortunes; (d) Having custody of housebreaking instruments; (e) Being a suspected person or reputed thief, and with intent, being almost anywhere; (f) leaving one’s wife or child impecunious. Issues Paper: Review of the Summary Offences Act 41 Section 57(1)(a) Committing a second offence should be covered by the maximum penalty for the actual offence. There should not be an offence of committing a second offence. This comes from the old Vagrancy Acts. It should be repealed. Section 57(1)(b) Begging is discussed above in Section 56 ‘Offences’ at p.44. Section 57(1)(d) The provision criminalising anyone who ‘pretends to tell fortunes’105 can be traced as far back as the Witchcraft Act 1735, from where it found its way into section 6 of the Vagrancy Act 1824, and then to section 1 of the Fraudulent Mediums Act 1951 (which was finally repealed in 2008). It seems that along with Ireland and Israel, the Northern Territory is one of a dwindling few jurisdictions not to have repealed the Witchcraft Act 1735 and it still remains on the Statute Books by default. Perhaps it should be repealed? The fact the defendants honestly believe they are telling fortunes and not pretending to do so is immaterial106. It is not however an offence to publish horoscopes in a newspaper or magazine. (Barbanell v Taylor [1936] 3 All ER 66 KB.) Fortune telling per se should not be a criminal offence. Nowadays the offence is irrelevant and silly and most people do not take fortune tellers seriously. On the contrary fortune telling is popular at markets, fairs and sideshows and is a form of light entertainment. If fraud is found to be involved then fraud or criminal deception can be charged under the Criminal Code.107 There have been no convictions for this offence since 2000 and it should be repealed. Section 57(1)(e) This again can be traced back to the United Kingdom Vagrancy Act 1824. The offence is having custody of ‘any picklock, key, crow, jack, bit, or other implement of housebreaking’. This requires ‘possession’ and naturally, knowledge of the possession. Whether knowledge of the use the crow or jack might be put to is necessary for the charge to be made out is not clear. The onus of proof for intent is reversed and once it is established that the accused has custody or possession there must be a lawful excuse for such custody or possession. Of course a bricklayer would have a good reason for having a screwdriver or chisel, and anybody might possess a pair of pliers, bolt cutters or a torch. (R v Stewart (1932) 96 JP Jo 137). See also: R v Patterson [1962] 1 All ER 340, R v Ward [1915] 3 KB 696, R v Oldham (1852) 169 ER 587 ‘Possessing Housebreaking Implement’ is an often used offence and has been charged 106 times in the past ten years. This offence could be combined with the offence of carrying articles of disguise. 105 Section 57(1)(d) 106 The word used to mean professing or proclaiming, more recently it has come to mean feigning. 107 s. 227 NTCC Issues Paper: Review of the Summary Offences Act 42 Section 57(1)(l) The phrase “Being a suspected person or reputed thief” without any definition or explanation should not be in our legislation. The section is vague and imprecise. The supposed circumstance of being a ‘suspected person’ does not merit enough to warrant any action. Who suspects the person, and of what are they suspected? The suspicion could not be proved without evidence of previous offending or of bad character which is of course inadmissible. This provision prohibits such a person from being almost anywhere at all with ‘intent’. This ‘intent’ does not have be shown by any of the person’s particular acts, but may be proved by virtue of ‘the circumstances of the case and his known character as proved to the Court’. This is a very old, outdated and ludicrous offence and should be repealed. Police however say they use the provision as a power to get rid of ‘pick pockets’ and other opportunistic thieves and undesirable persons from, for example, the Darwin show, the V8 Super Cars and the Mindil Beach markets. They use it as a ‘move along’ power. They do not charge anyone with this offence but it gives them the power to get known thieves and troublemakers away from these public events. The Police are in a position to know who these people are, recognise them and so use the provision preventatively. There are however other provisions that Police can use in these places and situations as ‘move along powers’. Section 120 of the Police Administration Act says that a member may enter a place being used for a show, exhibition, sport, racing or entertainment, and order a ‘reputed thief’ or someone who is disorderly, indecent or soliciting away from the place. A ‘reputed thief’ is defined in the section as someone who has been found guilty of dishonesty offences at least twice in the past five years. This section can also be used in the same way at Mindil Markets etc. and the SOA subsection is therefore unnecessary. Section 57(1)(p) Leaving one’s wife or child is covered by the Family Law Act 1975 (Cth). It should not be a criminal offence. Recommendations for sections 56 and 57 Repeal both sections 56 & 57 but keep separate offences against: 1. Not moving on after being found begging as discussed in section 56; and 2. Having an article of disguise or housebreaking instruments without lawful excuse as discussed in section 56. Section 58 – Penalty for Second or Subsequent Offence under Section 57 The penalty on being found guilty of a second or subsequent offence under section 57 is imprisonment for a term not exceeding 12 months. There have been no prosecutions since 2000. There should not be a separate offence for being found guilty a second time. Recommendation for section 58 Section 58 should be repealed. Issues Paper: Review of the Summary Offences Act 45 cattle, or, not being hired or employed to drive those cattle, wantonly and unlawfully pelts, hurts, or drives any such cattle; or (d) (i) being the driver of any wagon, cart, or dray of any kind not drawn by horses properly driven with reins, rides upon any such wagon, cart, or dray, not having some person on foot to guide the same; or (ii) being the driver of any carriage whatsoever, is at such a distance from such carriage, or in such a situation whilst it is passing along any street, road, thoroughfare, or public place, that he cannot guide and control the horses or cattle drawing the same; or (iii) rides upon the shafts of any wagon, cart, dray, or other vehicle whatsoever; or (iv) riding a bicycle or on horseback, or driving or propelling any wagon, cart, dray, or coach, or any other carriage or vehicle whatsoever, on meeting any other person riding a bicycle or on horseback, or driving or propelling any wagon, cart, dray, or coach, or any other carriage or vehicle whatsoever, does not keep his bicycle, horse, wagon, cart, dray, coach, carriage, or vehicle on the left or near side of the road; or (v) in any manner prevents any other person from passing him or any vehicle under his care, or prevents, hinders or interrupts the free passage of any vehicle or person; or (e) (i) causes any cart or vehicle (except standing for hire in any place not forbidden by law), or any truck or barrow, with or without horses, to stand longer than is necessary for loading or unloading or for taking up or setting down passengers; or (ii) by means of any cart or carriage, or any truck or barrow, or any horse or other animal, wilfully interrupts any public crossing, or wilfully causes any obstruction in any thoroughfare; or (f) after notice of any regulations made under section 74, wilfully disregards any such regulation, or does not conform thereto; or (g) without consent of the owner or occupier, affixes any posting bill or other paper against or upon any building, wall, or fence, or writes upon, soils, defaces, or marks any building, wall, or fence with chalk or paint, or in any other manner whatsoever; or (j) flies any kite, or plays any game, to the annoyance of the inhabitants or passengers in any street, road, thoroughfare, or public place, or to the common danger of the passengers therein; or (k) turns loose, or suffers any kind of swine or goats belonging to him or under his charge to stray or go about or to be tethered or depastured, in any street, road, thoroughfare, or public place, shall be guilty of an offence. Penalty: $200. (1) It shall be lawful for any member to take into custody, without warrant, any person who commits any such offence as mentioned in this section within view of that member. There has been one prosecution for ‘nuisances in thoroughfares’ and five for ‘bill posting’ in the last ten years. Issues Paper: Review of the Summary Offences Act 46 The main mischief this section addresses is obstruction of roads and other public places and if it is to be kept, the offence needs rewriting. This is another very old section that covers a lot of ground, from negligently driving cattle or carriages, not keeping to the left, hindering traffic and obstructing a thoroughfare, to flying a kite annoyingly, letting goats or swine stray, right through to bill posting and graffiti. There is a lot of overlap between this offence and the previous section 74. They both deal with obstruction of passage through public space in one way or another. While there is a need for prohibiting nuisances in thoroughfares there is no need for the pedantic detail gone into in this section. There is no need for the subsections on: (b) turning cattle loose, (c) driving cattle badly, (d)(i) driving a dray badly, (d)(ii) being too far away from a carriage to guide it, (d)(iii) riding on the drays shaft, (d)(iv) not keeping left, (j) flying kites or playing games and annoying someone, or (k) allowing goats or pigs to wander around in public. All those subsections do is describe a multitude of different nuisances and different ways of obstructing free passage through public places. There is value in having a provision dealing with obstructing thoroughfares, and creating nuisances which obstruct free passage through various public places. NSW has a streamlined section 6 ‘Obstructing Traffic’: A person shall not, without reasonable excuse (proof of which lies on the person), wilfully prevent, in any manner, the free passage of a person, vehicle or vessel in a public place. The NSW section solves the problem without the extensive verbiage of the NT section, by simply prohibiting the wilful obstructing of free passage in a public place. The ‘public place’ would include thoroughfares, roads, shopping centres and parks and any other place used by the public. The reversal of onus, would seem to allow for traditional freedoms of political expression and misadventure. GRAFFITI Section 75(1)(g) says that any person who: without consent of the owner or occupier, affixes any posting bill or other paper against or upon any building, wall, or fence, or writes upon, soils, defaces, or marks any building, wall, or fence with chalk or paint, or in any other manner whatsoever; …is guilty of an offence This offence carries a $200 fine. This provision is sometimes used to prosecute graffiti producers. Bill Posting however does seem recently to have taken a back seat to the offence of graffiti with its socially confrontational aspect. Graffiti writing or drawing, whether political, obscene, or just ‘tagging’, on public and private buildings and structures is regarded seriously in many quarters. The Northern Territory covers the offence with section 251 of the NT Criminal Code ‘Criminal Damage in General’, (1) Any person who unlawfully damages any property is guilty of an offence and is liable to imprisonment for two years. Issues Paper: Review of the Summary Offences Act 47 It is covered also by council by-laws, such as Darwin City Council by-laws section 98, which states: Writing, defacing, &c. A person who, without a permit, writes on, defaces or marks a power pole, sign, post, fixture, wall or pavement in a public place with writing or pictorial representation commits a regulatory offence. (The council also provides assistance to clean up graffiti, by providing graffiti cleanup kits and paint vouchers to assist residents and owners in removing the graffiti from private property.) Some other jurisdictions have separate Graffiti provisions in their summary offences legislation. Queensland has prohibited selling spray cans to minors111 and has devoted Part III of its Summary Offences Act, consisting of 18 sections, to graffiti, its removal and the registration of Graffiti removal officers, including their conditions, qualifications and appointment. NZ has a slightly more succinct approach with 11A and 11B in its Criminal Damage section prohibiting ‘Graffiti vandalism, tagging, defacing etc.112’ and ‘Possession of Graffiti implements’113. The offence of possessing graffiti implements carries a sentence of community work. They also prohibit selling spraypaint cans to minors114 and prohibit shops from having spraypaint cans within easy reach115. Victoria and NSW have each devoted a whole Act to the problem.116 Victoria’s Act provides search and seizure powers without warrants to Police, and entry powers to private property for the council to clean it up. The main provision states: “A person must not mark graffiti on property if the graffiti is visible from a public place unless the person has first obtained the express consent of the owner, or an agent of the owner, of the property to do so.” If it were thought desirable to have an offence for graffiti this section would be adequate for the offence of making graffiti. Another section should then prohibit selling spray paint cans to minors. The rest of the Victorian Act devoted to search and seizure etc is unnecessarily draconian and intrusive, and anyway the problem is nowhere near as bad in the NT as it is in Sydney, Brisbane and Melbourne. The NSW Act includes provisions for ‘community clean up orders’ and ‘graffiti prevention programs’, as consequences of being found guilty. Although the Darwin and some other town’s by-laws prohibit ‘Writing, defacing etc.,’ as a regulatory offence there is still a need for it to be an offence in the SOA. The graffiti offence should be a separate discrete section for unlawful graffiti and bill posting on public transport, structures and public and private buildings. The section should have a reverse onus for the issue of consent.117 There should also be a corresponding prohibition on selling spray paint cans to minors.118 111 Summary Offences Act 2005 (Qld) s.23A 112 Section 11A Summary Offences Act 1988 (NZ) 113 Section 11B Summary Offences Act 1988 (NZ) 114 Section 14A Summary Offences Act 1988 (NZ) 115 Section 14B Summary Offences Act 1988 (NZ) 116 Graffiti Prevention Act 2007 (Vic); Graffiti Control Act 2008 (NSW) 117 A building owner may like graffiti on the building. 118 NSW has the offence of selling Spray paint cans to minors but it was not used in the first two years of its operation. Issues Paper: Review of the Summary Offences Act 50 (3) A person who has been directed under subsection (1) or (2) to stop or abate undue noise and who, other than during the period of ten minutes immediately after being so directed: (a) continues to make the noise or continues to cause or permit the noise to be made; or (b) does not abate the noise, in contravention of the direction is guilty of an offence. Penalty: $2,000. This has been charged 20 times in the last ten years. Section 53C – Certificate of Member of the Police Force to be Evidence In a prosecution for an offence against section 53A or 53B a certificate by a member of the Police Force stating that a complaint of a kind referred to in those sections had, at a specified time and on a specified date, been made is prima facie evidence of the matters stated in the certificate. Section 53D – Noise Abatement Orders (1) Where a person occupying premises makes a complaint to a Justice alleging that his occupation of those premises is affected by undue noise, the Justice may issue his summons for the appearance before him or any other Justice of the person who is: (a) alleged to be making or causing or permitting the noise to be made; or (b) the occupier or person apparently in charge of the premises or part of the premises from which the noise is alleged to be emitted. (2) If the Court is satisfied that an alleged undue noise exists, or that although abated it is likely to recur on the same premises or part of the premises, the Court may, where it finds that such noise is not justified in the circumstances, make an order directing the person summoned under subsection (1) to stop or abate the noise or to confine the making of the noise to within such hours as the Court may fix and the Court may, in making the order, impose such other conditions as it thinks fit. (3) A person shall not contravene or fail to comply with an order made under subsection (2). Penalty: $2,000. (4) Where: (a) a direction has been given under section 53A or 53B; and (b) a member is satisfied that another person requires the name and address of the person to whom the direction was given for the purposes of making a complaint under subsection (1) in respect of that person or instituting any civil suit or proceeding in respect of the noise the subject of the direction, the member may provide the other person with the name and address of the person to whom the direction was given. (5) Where the Court makes an order under subsection (2), the Court may order the defendant to pay to the complainant such costs as it thinks fit. (6) Where the Court refuses to make an order under subsection (2), the Court shall not award costs against the complainant unless the Court is satisfied that the complaint made was vexatious or unreasonable. This has been charged once in the last ten years. Issues Paper: Review of the Summary Offences Act 51 Section 53E – Powers of Police (1) For the purposes of giving a direction under section 53A or 53B, a member of the Police Force may enter the premises or the part of the premises from which the noise is coming together with such assistance and using such force as the member considers reasonable for the purpose. (2) A member of the Police Force who enters premises or a part of premises under this section may require a person in the premises or the part to answer a question asked for the purpose of identifying the occupier of the premises or the part or the person responsible for the noise or in charge of the property that is producing the noise. (3) A person asked a question under subsection (2) shall not refuse or fail to answer the question to the best of his knowledge or belief. Penalty: $200. Section 53F – Compliance with direction For the purposes of a prosecution of an offence against sections 53A and 53B, it is immaterial that noise coming from the premises or the part of the premises after a direction has been given is not of the same nature or of the same level as the noise to which the direction given Noise provisions are necessary for the peaceful enjoyment of life, and the offences are offences of a public order nature. Penalties for sections 53A-53E The current maximum penalty for breach of sections 53A-53S is $2000. This appears to be the appropriate level and, expressed in round terms, is 20 penalty units. The maximum penalty for breach of section 53E is $200. This appears to be the appropriate level and, expressed in round terms, is 2 penalty units. Recommendation for sections 53A-53F 1. Sections 53A to 53F should remain in the SOA. 2. All offences should carry 20 penalty units except 53E which should carry 2 penalty units. Issues Paper: Review of the Summary Offences Act 52 5 . TRESPASS OFFENCES These offences are descended from the Forcible Entry Acts 1381-1623 which sought to force owners of land to go to court to get land returned rather than resort to unbridled self help. The offences were resurrected in the UK in the 1970s to penalise squatting and industrial occupation of premises or land by students and workers. They were introduced to the NT Act in 1983 for the same reasons. The main purpose of the law according to the UK Law Commission is “to prevent breaches of the peace”. SA has combined these two offences into one.119 The ACT has two almost identical provisions120 to ours. The Northern Territory Trespass Act does not cover the situations this provision envisages. Section 46A – Forcible Entry A person who, in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace, enters, whether or not he is so entitled to enter, land which is in the actual and peaceable possession of another is guilty of an offence. Penalty: Imprisonment for 12 months. There have been 16 prosecutions for this offence since 2000. Section 46B – Forcible Detainer A person who, being in actual possession of land without being entitled by law to possession, holds possession of it in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace against a person entitled by law to the possession of the land is guilty of an offence. Penalty: Imprisonment for 12 months. This is a complimentary provision to section 46A Forcible Entry and is to prevent the squatter or occupier of premises or land from initiating a disturbance while trying to prevent him or herself from being removed. It is used for example to protect against possible violent confrontations in sit-ins and lockouts. There have been no prosecutions for this offence since 2000. These offences would be better placed in the Trespass Act as they are to do with ownership and occupancy of land and the rights and restrictions pertaining to that ownership or occupation. Recommendation for sections 46A and 46B Sections 46A & 46B should be retained and moved to the Trespass Act. The fault element should be intent. 119 Section 17D Summary Offences Act 1953 (SA) 120 Sections 151 & 152 Crimes Act 1900 (ACT) Issues Paper: Review of the Summary Offences Act 55 (b) that he had no intent to defraud. Penalty: $2,000, or imprisonment for 12 months, or both. This offence is covered to an extent by section 227 Criminal Code ‘Criminal Deception’, but in this offence the onus of proof has been reversed to cover cases where proving an intent to defraud is extremely difficult; such as where there is some money in an account but not enough to cover the amount written or presented. Where a cheque is returned marked ‘no account’ the offender can be charged with fraud, but where it is returned marked ‘insufficient funds’ it is not possible to prove an intention to defraud as it may just be a mistake. With the reversal of onus the defendant must prove his honourable intentions. This section was initially enacted to cover situations where a person opens an account with a little money and then wilfully draws cheques far exceeding the amount deposited. Victoria and SA still have the same section. NSW has a similar section, but in the Crimes Act 1900. There have been 53 charges since 2000. Recommendation for section 60 This provision and the maximum penalty of 12 months should be retained. Section 60A – Fraud Other than False Pretences A person who obtains or attempts to obtain any chattel, money, valuable security, credit, benefit or advantage or discharges or attempts to discharge any debt or liability by fraud other than false pretences shall be guilty of an offence. Penalty: $2,000, or imprisonment for 12 months, or both. This offence is covered by section 227 Criminal Code ‘Criminal Deception’ and thus is superfluous. There have only been four charges since 2000. All stakeholders submitted that this offence be repealed. Recommendation for section 60A Section 60A should be repealed. Section 61 – Persons Suspected of Having Stolen Goods: (1) In this section: personal property includes money in cash or cheque form, or deposited in an ADI account or other account. premises includes a structure, building, vehicle, vessel, aircraft, hovercraft, land or place. (2) A person who: (a) has in that person’s custody any personal property; (b) has in the custody of another person any personal property; Issues Paper: Review of the Summary Offences Act 56 (c) has in or on any premises any personal property; or (d) gives any personal property to a person who is not lawfully entitled to it, being personal property which, at any time before the making of a charge for an offence against this section in respect of the personal property, is reasonably suspected of having been stolen or otherwise unlawfully obtained, is guilty of an offence. Penalty: $2,000, or imprisonment for 12 months. (3) It is a defence to a charge for an offence against subsection (2) if the defendant gives to the court a satisfactory account: (a) as to how the defendant obtained the personal property referred to in the charge; and (b) of the custody of the personal property by the defendant after it was obtained by him or her for each period during which the defendant had custody of the personal property. ‘Unlawful possession of suspected stolen property’ creates an offence for a person to unlawfully possess a thing that is reasonably suspected of having been stolen or unlawfully obtained. It also reverses the onus of proof, requiring the defendant to give an explanation. The offence derives from the Metropolitan Police Act 1839 although the early versions did not use the word ‘reasonable’, which was introduced more recently. The word ‘actual’ in front of ‘possession’ was introduced in equivalent sections in 1912. All Australian jurisdictions have a similar law. Making out stealing or unlawfully obtaining is not an element of the offence, and it is not necessary to show that the offender stole the property or is suspected of having stolen it122. The property in the offender’s custody must bear ‘the taint of illegality’123. This offence is complementary to the more serious offences of stealing and receiving contained in the Criminal Code. It may be used in instances where the lawful owner of property cannot be located but the circumstances in which a person has possession of property can lead to the conclusion that it has been stolen or unlawfully obtained. For example, a financially destitute person may be found in possession of thousands of dollars worth of new leather goods and be unable or reluctant to give Police an explanation as to how he or she came lawfully by the goods. Where an owner cannot be found due to the fact that the goods may, for example, have been stolen interstate, Police may charge the person under this provision. The section is founded upon a suspicion regarding the actual goods in the possession of the person, and not the person themself. That person is then obliged to give an explanation in order to exculpate themselves from the offence. The offence should not be charged however where the prosecution has or is able to obtain, the evidence to support a charge of stealing124. It is a defence in the NT if the defendant gives the court a satisfactory account as to how the property was obtained. In the NSW Crimes Act 1900125 and the ACT Criminal Code 2002126, however, instead of requiring the person to give a satisfactory account once possession and suspicion are proved, the legislation provides that it is a good defence if the defendant satisfies the court that he or she had no reasonable grounds for suspecting that the property was stolen or otherwise unlawfully obtained. 122 Edwards v Trennery, JA 99 & JA 177 of 1997, 5 January 1998, Martin CJ 123 Grant v The Queen (1981) 147 CLR 503 @ 507. 124 Baldwin v Samuels (1973) 6 S.A.S.R. 144 125 Section 527C 126 Section 324 Issues Paper: Review of the Summary Offences Act 57 See: Eupene v Hales (2000) 10 NTLR 16, Gorey v Winzar [2001] NTSC 21, McDonald v Webster [1913] VLR 506, 19 ALR 563, Trainer v The King (1906) 4 CLR 126, Grant v The Queen (1981) 55 ALJR 490, Nichols v Young [1992] 2 VR 209 This offence has been charged 1213 times in the last ten years. Penalty for section 61 The current maximum penalty of imprisonment (12 months) appears appropriate. However, the maximum fine ($2,000) is too low. It is more appropriate that it be the default level of 100 penalty units. Recommendation for section 61 This provision and the maximum penalty of 12 months imprisonment should be retained but the monetary amount should be removed so that the default level of 100 penalty units applies. Section 62 – Where Property Improperly Taken or Stolen is Found and Not Satisfactorily Accounted For (1) Whenever any credible witness proves upon oath before any Justice that there is reasonable cause to suspect that any such property as mentioned in this section has been taken or stolen, and is to be found in any house or other place, it shall be lawful for the Justice to issue a warrant to search the house or place for the property, and any person in whose possession, or on whose premises, any of the property is found by virtue of any such warrant, or by any member of the Police Force when executing any general search warrant or any other warrant, or otherwise acting in the discharge of his duty, who does not satisfy the Special Magistrate or Justices before whom he is brought that he came lawfully by the same, or that the same was on his premises without his knowledge or consent, shall: (a) if the property so found consists of any goods, merchandise, or other articles belonging to any ship or vessel in distress, or wrecked, stranded, or cast on shore, be liable to a penalty not exceeding $2,000 or to imprisonment for any period not exceeding 12 months, or both; (b) if the property so found consists of the carcass, or the head, skin, hide, fleece, feet, or other part of any cattle, be liable to a penalty not exceeding $2,000, or to imprisonment for any period not exceeding 12 months, or both; or (c) if the property so found consists of the whole or any part of any tree, sapling, or shrub, or any underwood, or any part of any live or dead fence, or any post, picket, rail, stile, or gate, or any part thereof (being of the value of not less than 10 cents), to be liable to a penalty not exceeding $2,000, or to imprisonment for any period not exceeding 12 months, or both, and in addition shall pay to the party aggrieved the value of the property so found. (2) Any person who: (a) offers or exposes for sale any goods, merchandise, or articles (whether found by virtue of a search warrant or not) which have been unlawfully taken, or are reasonably suspected of having been unlawfully taken, from any ship or vessel in distress, or wrecked, stranded, or cast on shore; and Issues Paper: Review of the Summary Offences Act 60 7 . INDECENCY OR OBSCENITY OFFENCES Obscenity was originally an ecclesiastical offence and now there is fortunately a large body of case law as to meaning of ‘obscene’.129 and obscenity. The authorities say that the test is objective. For example with language, it is not a question of whether or not the individual who was addressed thought the words were obscene or indecent, but whether objectively in the prevailing circumstances the words meet that description. The more serious of these offences may be better placed in the Criminal Code130. There are obvious difficulties with deciding where the line is drawn as to what is indecent and what is obscene, and what the words actually mean. Section 50 – Penalty for Indecent Exposure of the Person Any person who offends against decency by the exposure of his person in any street or public place, or in the view thereof, shall be guilty of an offence. Penalty: $2,000 or imprisonment for six months, or both. The language should be less archaic. The word ‘thereof’ should not be used. The phrase ‘his person’ means something different now to the meaning it had when the section was first written131. The offence has been charged 81 times in the last ten years. Victoria has drafted the offence in clearer language in their section 19: “A person must not wilfully and obscenely expose the genital area of his or her body in, or within view of, a public place”. It is appropriate that the offence, as in Victoria, should make it clear that there is a mental (fault) element as to exposing a person’s genital area in such as way that is obscene. Thus it is not the fact of the exposure but the intention or recklessness behind the exposure which criminalises the act. Queensland approaches the same problem by using the term ‘circumstances of aggravation’, which when present, take the penalty from 2 penalty units to 40 penalty units or 12 months imprisonment. A circumstance of aggravation in the Queensland section is to “wilfully expose his or her genitals so as to offend or embarrass another person.” The ‘wilfully’ attaches to the ‘so as to offend or embarrass’, and so at least recklessness as to offending or embarrassing must be present. Again, an inadvertent or non-offensive exposure is not criminalised. The Criminal Code contains the offence of ‘Gross Indecency in Public’ (s.133) which covers more extreme behaviour than that contemplated by this section, such as masturbating or other objectionable obscene behaviour in public. The Criminal Code provision requires an act of gross indecency. This section is solely concerned with exposing ones genitals in public. The fault element should be recklessness. Penalty for section 50 The current maximum penalty of six months is appropriate for a worst case breach of section 50. The maximum fine of $2,000 (if converted to 20 penalty units) also appears appropriate despite being lower than the default level of 50 penalty units. 129 Crowe v Graham (1968) 121 CLR 375 per Windeyer @ 390; Phillips v Police (1994) 75 A Crim R 480 130 For example section 133 NTCC. ‘Gross indecency in public’. 131 “…today, and indeed by 1824 the word ‘person’ in connection with sexual matters had aquired a meaning of its own, a meaning which made it a synonym for penis.” Evans v Ewels [1972] 1 WLR 671; 2 All ER 22. Issues Paper: Review of the Summary Offences Act 61 Recommendation for section 50 (1) This provision should be rewritten to mirror the Victorian section 19. (2) The fault element should be recklessness. (3) The maximum penalty should remain at 6 months with the fine to be expressed as 50 penalty units. Section 53 – Obscenity (1) Any person who: (a) in a public place, or within the view or hearing of any person passing therein: (i) sings any obscene song or ballad, or writes or draws any indecent or obscene word, figure or representation, or uses any profane, indecent or obscene language, shall be guilty of an offence. (7) A person who in a public place or in licensed premises within the meaning of the Liquor Act : (g) by threatening, abusive or objectionable words or behaviour, offends or causes substantial annoyance to another person; or (h) makes such a noise as might reasonably in the circumstances cause substantial annoyance to another person, whether that other person is in the public place, those premises or elsewhere, is guilty of an offence. (8) Where the words or behaviour or noise referred to in subsection (7) are or is made in licensed premises within the meaning of the Liquor Act and the Court is satisfied that the licensee might reasonably have taken action to prevent the commission of the offence, the licensee is also guilty of an offence. (9) The penalty for an offence against this section is a fine not exceeding $2,000 or imprisonment for a term not exceeding six months, or both. (10) The Court hearing a complaint for an offence against this section shall not award costs against the complainant unless the Court considers that the complaint was unreasonably made. The title of this offence does not really describe its content. The section criminalises the using of obscene, indecent or profane words or language. The offence overlaps other offences, mainly those in section 47. There are two different offences left in this section after numerous alterations and subtractions. These are: (i) Subsection (1)(a)(i) The singing of an obscene song or ballad, writing or drawing something obscene, or using profane or indecent language. (ii) Subsection (7) covering threatening, abusive or objectionable words or behaviour, or noise in a public place or on licensed premises which causes ‘substantial annoyance’. There have been prosecutions of comedians Rodney Rude132 and Austin Tayshus133under similar legislation in WA. Both were charged after public performances. Austin Tayshus was 132 Keft v Fraser (unreported) WASC 21 April 1986 133 Carroll v Gutman (unreported) WASC 19 July 1985 Issues Paper: Review of the Summary Offences Act 62 unlucky and was convicted whereas Rodney Rude, at first instance convicted, was then successful in his appeal. It is doubtful whether similar prosecutions would be countenanced nowadays. NSW has divided the offence into three separate offences. Section 4 ‘Offensive Conduct’, section 4A ‘Offensive Language’, and section 5 ‘Obscene Exposure’. Queensland’s section 6 “Public Nuisance” includes offensive, obscene, indecent, abusive or threatening language as offensive behaviour. 53(1)(a)(i) It is doubtful whether there is a place for a separate offence of obscene language whether or not it involves singing. The offences of ‘disorderly behaviour’ or ‘offensive behaviour’ in section 47(a) ‘Offensive, &c., conduct’ cover this situation. If the language is offensive enough the proper charge is ‘offensive behaviour’, or ‘offensive language’. There is an intention in Public Order legislation that people should be allowed to enjoy, and have peaceful passage through, public places. If language is going to interfere with that, then it comes within the orbit of ‘Offensive behaviour’. To criminalise the use of language itself, without a commensurate causing of distress, or undue offence, or fear however, is too restrictive. It is very difficult, especially in a place as diverse as the NT, to draw the line that criminalises certain language as offensive or indecent. Language found to be offensive in one setting may not be so in another. Gleeson CJ in Coleman v Power134 said: “it is impossible to state comprehensively and precisely the circumstances in which defamatory language in a public place will involve such a disturbance of public order, or such an affront to contemporary standards of behaviour, as to constitute the offence.” Having an offence of ‘sings an obscene song or ballad…or uses any profane, indecent or obscene language’ is old fashioned and out of touch with modern community standards. Again the language component is subjective. Profane as an adjective means not sacred135 or ‘blasphemous’ and signifies attacking Christianity or perhaps other religions. Profanity in its more commonly understood form as general swearing, is used every day in many places where people congregate such as sports events, pubs and is common in general conversation. ‘Use Obscene/Indecent Language’ (including writing which was charged four times) has been charged 531 times in the last ten years. 53(7)(a) This offence is charged as ‘Use Objectionable Words in Public Place’ which has been charged 891 times in ten years, ‘Threatening Behaviour in Public Place’ which has been charged 768 times, and ‘Objectionable Behaviour in Public Place’ which has been charged 34 times. This gives a total of 1693. 134 (2004) 220 CLR 1 135 See Oxford dictionary definition. Issues Paper: Review of the Summary Offences Act 65 Section 65AA Dumping of Certain Containers No person shall abandon a refrigerator, icechest, icebox, article of furniture, trunk or article of a like nature which has in it a compartment of a capacity of 40 litres or 40,000 cm 3 or more or any prescribed article on any vacant land or on any dump, tip, sanitary depot, public reserve or public place unless he has, before so abandoning it: (a) removed from the compartment every door and lid thereof and the hinges or locks for those doors and lids; or (b) otherwise rendered those doors and lids incapable of being fastened. Penalty: $200. There have been no charges since 2000. The provision was introduced in 1979 as a safety measure to protect children from accidentally locking themselves in discarded fridges and other similar items with doors that might lock from the outside but are unable to be opened from the inside. SA also penalises selling fridges manufactured after 1962 that cannot be opened easily from the inside. The NT section penalises dumping or leaving such things around. Nowadays however children can’t just wander around rubbish dumps. Fridges are now manufactured so they can be opened from the inside and manufacturers of such items are more aware of extended safety concerns in constructing the items. The Criminal Code has the offences of ‘Recklessly endangering life’142 and Recklessly endangering serious harm’143 which depending on the remoteness of the injury to the action of, say, dumping a fridge, could cover leaving dangerous things around for people to injure themselves with. This is a very specific provision. There are lots of dangerous things one could dump that are not criminalised. SA is the only other jurisdiction in Australasia that has a similar provision144. It is doubtful whether the section is necessary now. Recommendation for section 65AA Section 65AA should be repealed. Section 66 – Regulation of Places of Public Resort (1) Every person who has or keeps any house, shop, room, or place of public resort wherein provisions, liquor, or refreshments of any kind are sold or consumed (whether the same are kept or retailed therein or procured elsewhere) who: (a) wilfully and knowingly permits drunkenness or other disorderly conduct in the house, shop, room, or place; or shall be guilty of an offence. Penalty: $200. (2) The holder of a licence under the Liquor Act who has been found guilty of an offence against subsection (1) in respect of certain conduct may be prosecuted for an offence against the Liquor Act in respect of the same conduct. There have been no convictions since 2000. The offence is covered in any case by ss. 121 & 105 of the Liquor Act. 142 Section 174B NTCC 143 Section 174C NTCC 144 We copied parts of the SA provision word for word. Issues Paper: Review of the Summary Offences Act 66 Recommendation for section 66 Section 66 should be repealed. Section 68A – False Reports to Police (1) Any person who falsely and with knowledge of the falsity of his statements represents to any member of the police force that any act has been done or that any circumstances have occurred, which act or circumstances as so represented are such as reasonably call for investigation by the police, shall be guilty of an offence. Maximum penalty: $11,000 or imprisonment for two years. (2) In addition to or without imposing a fine on any defendant found guilty under this section, the court may order that the defendant pay to the complainant a reasonable sum for the expenses of or incidental to any investigation made by any member of the police force as a result of the false statement. (3) Any amounts received by the complainant under this section shall be paid by him into the Central Holding Authority. (4) This section shall not be held to restrict the operation of any other enactment or rule of law. Similar legislation exists in most other Australian jurisdictions. There is of course a great nuisance and often great cost in following up false reports. Fraudulent insurance claims are often the reason for committing this offence; see for example R v Atamain (unreported VSC 10 February 1989) This offence has been charged 60 times in the last ten years. Other jurisdictions have widely varying penalties for this offence.145 We should retain the current maximum penalty including the monetary penalty of $11,000 (converted into 100 penalty units) despite the fact that it is lower than the default level of 200 penalty units. Recommendation for section 68A 1. This provision and the current maximum penalty of two years should be retained. 2. The fault element of the representation should be intention. 3. The fault element of the situation should be knowledge. Section 68B – Advertising a Reward for the Return of Stolen Property A person who: (a) publicly offers a reward for the return of property that has been stolen, and in the offer makes use of words purporting that no questions will be asked or that the person producing such property will not be seized or molested; (b) publicly offers to return to a person who may have brought or advanced money by way of loan on stolen property the money so paid or advanced or any other sum of money or reward for the return of such property; or (c) prints or publishes such an offer, is guilty of an offence. Penalty: $500. 145 For example NZ section 24 gives it 3 months. Victoria gives in 12 months. SA and WA give 2 years. Issues Paper: Review of the Summary Offences Act 67 The offence was introduced in 1983. There have been no charges in the last ten years. The purpose of the offence is to take away the chance of a thief profiting by first stealing and then returning the stolen goods to their owner on a no questions asked basis. The offence seems to punish the victim. Recommendation for section 68B Section 68B should be repealed. Section 69 – Penalty For Offences Where no Special Penalty is Appointed Every offence against this Act for which no special penalty is provided shall render the offender liable to a penalty of not more than $500, or to imprisonment for any period not exceeding three months, or both. There should not be any offences for which no penalty is appointed. Every offence should have its particular penalty nominated in the section itself. There are no provisions in the SOA to which section this applies. Recommendation for section 69 Section 69 should be repealed. Section 69A – Disobedience to Laws of The Territory A person who, without lawful excuse, proof of which is on him: (a) does an act that he is forbidden to do; or (b) omits to do an act that he is required to do, by a law in force in the Territory, unless a penalty intended to be exclusive of all other punishment is expressly provided by such a law, is guilty of an offence. Penalty: Imprisonment for three months. This was enacted at the same time as the Criminal Code in 1983 probably to catch any mistakes or omissions in the new Code or in other legislation. There is a similar provision in Queensland legislation. In any Act an offence provision should be clearly described as such and should have a penalty attached. The penalty for offences in other Acts should not be hidden in the SOA or in any other interpretation legislation. The existence of the section can cause drafting problems when there is a desire to create an obligation or duty but with no intention of creating an offence. For an example see section 697 of the Legal Profession Act – which disapplied section 69A of the SOA for breaches of that Act that were only intended to operate as disciplinary breaches. Similar issues may arise for legislation, such as Part 5 of the Consumer Affairs and Fair Trading Act, which only seek to impose civil obligations. To the knowledge of the Department of Justice section 69A has not been called on in the past 10 years for use for a prosecution of a section that has no penalty or for the purpose of clarifying whether or not a provision in an Act or in subordinate legislation does create a penalty. Recommendation for section 69A Section 69A should be repealed. Issues Paper: Review of the Summary Offences Act 70 There have been no convictions since 2000. There does not seem to be any need for the offence. The offence of Criminal Damage (section 251 of the Criminal Code) covers this. Recommendation for section 82 Section 82 should be repealed. Section 85 – Leaving Dead Animals in Public Place Any person who: (a) throws or leaves, or causes to be thrown or left, any dead animal, or any part thereof, upon any street, lane, road or other public place, or into any river, creek, or other stream which flows through, by, or along any such street, lane, road, or public place; or (b) leaves, or causes to be left, any dead animal, or any part thereof, upon the shores of any such river, creek, or other stream; or (c) leaves, of causes to be left, any dead animal, or any part thereof, on or upon any private property abutting upon any street, or on or near to any other public place, to the annoyance of the inhabitants or of persons passing along or resorting to the street, lane, road, or public place, or of the occupiers of any dwelling-house, shall be liable to a penalty of not more than $200. There have been three charges in the last ten years. Again this is a very old offence and the behaviour is covered by the Litter Act.146 Recommendation for section 85 Section 85 should be repealed. Section 89 – Cellars or Openings beneath the Surface of Footpaths Prohibited Any person who makes any cellar, or any opening, door, or window, in or beneath the surface of the footpath of any street or public place, shall be liable to a penalty of $200 over and above the expense of remedying or removing such cellar, opening, door, or window, such expense to be assessed and allowed by the Justice finding the person guilty. There have been no charges since 2000. There does not seem to be a need for this provision. Recommendation for section 89 Section 89 should be repealed. Section 91AA – Regulatory Offences An offence of contravening or failing to comply with section 53A(2), 53B(3), 65AA, 74(3), 77(2), 82(3) or (4), or 89 is a regulatory offence. Section 53A(2) & section 53B(3), which are offences against continuing to make noise after being warned to stop by Police, are regulatory offences. Section 74(3), Failing to obey Police traffic directions, is already an offence under the traffic act. 146 Section 7 ‘Dead animals on street, &c.’ Issues Paper: Review of the Summary Offences Act 71 There is no section 77(2). Section 82(3), is an offence of wasting water from a public fountain and will be repealed anyway. There is no section 82(4) Section 89 (Cellars or openings beneath the surface of footpaths prohibited) should be repealed anyway. If the offences in the Act are redrafted so as to accord with Part IIAA of the Criminal Code the need for section 91AA will disappear as the offences will be drafted in such a way that it is clear whether they operate as strict or absolute liability offences under Part IIAA. This is said noting that such classifications are akin to classifying offences as “regulatory offences” for the purposes of Part II of the Criminal Code. It is not appropriate to classify (as section 91AA tries to) offences as having a particular nature. This kind of drafting fools readers and leads to long term cross referencing errors as has occurred with section 91AA. Recommendation for section 91AA Sections 53A(2) and 53B(3) should be described as strict liability offences in the actual sections of 53A and 53B. If an offence is a strict liability offence it should describe itself as such in the section. A section wholly devoted to regulatory offences is unnecessary, and section 91AA should be repealed. Section 92 – Regulations This is a standard provision in legislation allowing regulations to be made. It needs to be read with sections 65-65D of the Interpretation Act. These provisions expand the scope of regulations and, in the case of the Summary Offence Regulations, are the source of the power to make regulations concerning appeals under section 55A of the Act. Issues Paper: Review of the Summary Offences Act 72 SHOULD WE RETAIN THE SUMMARY OFFENCES ACT?147 Assuming we retain some of the offences from the SOA, amend some others to bring them into the 21st Century and introduce new provisions that are deemed necessary, the question remains where should they be located The offences we have been discussing are less serious, of a lower order of criminality, and carry a lesser penalty than most offences in the Criminal Code. The longest period of imprisonment stipulated is two years and many offences only carry a fine. These offences are dealt with in the Court of Summary Jurisdiction and not in the Supreme Court. Most of the offences have the common feature of being ‘Public Order’ offences, which are often used to keep order rather than penalise the breach of order. The offences therefore need a separate place from the more serious offences but the question remains whether that separate place is a new Part within the Criminal Code for ‘summary or public order offences’ or outside the Criminal Code in its own (however named) Summary Offences Act. Other jurisdictions have gone both ways. WA placed their old summary offences in the Criminal Code and the ACT has placed some in the Criminal Code and some in the Crimes Act.148 The other jurisdictions, Queensland, Victoria, New South Wales, South Australia, Tasmania and New Zealand have kept a separate Act for their summary offences. It could be argued that getting rid of the SOA and placing the offences in the Criminal Code gets rid of a superfluous Act and leads to greater long term homogeneity between serious and less serious offences when the offences have common underling elements.149 There is also an argument that disparate subjects should be in separate Acts. We have a separate Act for drug offences, a separate Act for trespass offences and a separate Act for traffic offences. Most Acts carry offence provisions, and some, for example the Prostitution Regulation Act carry serious consequences.150 Perhaps summary offences by their minor nature and jurisdictional differences should not be in the same Act that contains murder, rape and treason, and instead should be in a separate Act to be dealt with in the Court of Summary Jurisdiction. The Criminal Code151 says, for the purpose of offences not covered by Part IIAA, there are crimes, simple offences and regulatory offences. The Interpretation Act says offences are simple or regulatory offences if they do not carry more than two years imprisonment.152These summary offences then are simple or regulatory offences. There is an old adage, much harder to justify now, that ignorance of the law is no excuse. It would seem preferable that people know what the law is, or at least where the law is, and so have the opportunity to discover it. 153 147 “When prohibitory laws abound, the people grow poor! When laws are numerous there are many criminals.” Lao-tse 148 For example there is section 392 of the Crimes Act 1900 ‘Offensive Behaviour’ and section 336 of the Criminal Code 2002 ‘Passing Valueless Cheques’. 149 “A decrease in the quantity of legislation generally means an increase in the quality of life” George Will. 150 Up to 14 years imprisonment for example for inducing an infant to take part in prostitution. (s.13) 151 Section 3 NTCC ‘Division of Offences. 152 Section 38E Interpretation Act ‘Certain offences crimes’. 153 In the UK the government has created more than 3,500 crimes since 1997 including one for using a non-approved technique for weighing Herring. In 1975 the UK had three volumes of Acts. By 1985 there were five, according to Lord Simon of Glairdsdale speaking in 1990. http://hansard.millbanksystems.com/lords/1990/jan/31/legislatio-quantity-and- quality; Issues Paper: Review of the Summary Offences Act 75 It seems illogical to have a whole act for what is in effect section 47 of the SOA for meetings, and offences of threats, intimidation, violence, and force, which are all covered in the Criminal Code sections 187 and 188. The Act is one of the old anti union acts and was enacted in 1921 around the time of the Waterfront strikes of the early 20th century. The whole Act should be repealed as any mischief the Act was designed to protect at public meetings or in the pursuance of a lawful occupation is covered adequately by the provisions of the Criminal Code and the SOA. Recommendation The Observance of Law Act should be repealed. Final Thought “If we tore down all the laws, where should we hide from the Devil, and the winds that would blow then?” St Thomas More (1478 – 1535) Issues Paper: Review of the Summary Offences Act 76 SUMMARY OFFENCES ACT REVIEW: SCHEDULE OF RECOMMENDATIONS Section Offence Charges in the Last Ten Years Comment Recommendation LIQUOR RELATED OFFENCES AND POWERS s.45D- 45K Drinking in a Public Place 11 This is mainly about the 2 kilometre law with associated powers and exceptions. This whole part should be moved to the Liquor Act. PUBLIC ORDER OFFENCES s.47(a) Offensive &c ., conduct Every person who is guilty: (a) Of any riotous, offensive, disorderly or indecent behaviour, or of fighting, or using obscene language… 4553 This is the catch all subsection for nuisance type behaviour. The most frequently used charges in the last 10 years are ‘offensive behavior ‘ (488 charges) & ‘disorderly behaviour’ (3904 charges). Fighting (280 charges), Indecent behaviour (100 charges), and Riotous behaviour (61 charges), have been used minimally. Fighting and riotous behaviour both fit in the ‘disorderly ‘ or ‘threatening’ category. Objectionable words s.53(7)(a) (891 charges) would be included in the language section of the amended s.47. The offence should be separated into two sections, one for behaviour offences and another for language offences. The behaviour offence should cover disorderly, offensive and threatening behaviour. See for example WA section 74.1 It should include behaviour in a police station. The offensive language section should be modeled on NSW s. 4A.2 Penalty; The behaviour offence should carry 3 months (at present 6 months) to bring NT in line with other jurisdictions. The language offence should not carry imprisonment. s.47(b) ‘disturbing the public peace’ 52 This behaviour is covered by subsection 47(a). The meaning of ‘disturbing the public peace’ is vague, imprecise and an old legal term of art. Repeal s.47(c) ‘riotous, offensive, etc behaviour in a police station’ 1194 This is generally charged as ‘Disorderly behaviour’ in a police station. It is necessary to have the overall offence including a police station, as a police station is not a public place. See above s.47(a) Issues Paper: Review of the Summary Offences Act 77 Section Offence Charges in the Last Ten Years Comment Recommendation s.47(d) ‘offensive behaviour in a dwelling house dressing-room, training-shed or clubhouse’. 157 The offence has only been charged as ‘offensive behaviour in a dwelling house’ and the other places e.g. dressing room etc do not get charged. The particularisation of other private places is not necessary. Repeal s.47(e) ‘unreasonably causing substantial annoyance’ 253 The offences of ‘disorderly, offensive, indecent etc behaviour already cover this. The behaviour, if criminalised, should be objectively criminal behaviour. It should not have to rely on someone somewhere being annoyed. Just being annoying should not be a criminal offence. Repeal s.47(f) ‘disrupting privacy’ 32 This behaviour is not covered by s.47(a). It is the ‘Peeping Tom’ offence and it should remain an offence just not in this section. The offence should be retained as a separate Peeping Tom offence. See NZ s. 30. ‘Peeping or peering into a dwelling house’.3 s.47AA Violent Disorder 756 This offence is a relatively new offence replacing the old offence of ‘Affray’. It was enacted in 2006 in response to the disorders in Wadeye and Yuendumu. The provision is already Part IIAA compliant and has the fault element of ‘recklessness’. Retain s.47AB Threatening Violence 42 This offence does not make sense in its present form. This behaviour is already covered by section 200 of the Criminal Code. Repeal s.47AC Loitering by Sexual Offender 9 This offence has a reversal of onus requiring the person, if he or she has the requisite prior criminal history and is found ‘hiding or lingering’ near a school etc., to have a ‘reasonable excuse’ for being there. This is a ‘status offence’ and is intended to be. Retain s.47A(1) Loitering General Offence; ‘A person loitering in any public place who does not give a satisfactory account of himself…’ 9 Subsection 47A(1) is a needlessly intrusive ‘status’ offence dating back to the old Vagrancy Acts and the Poor laws. The following subsubsection 47A(2) covers the behaviour the law seeks to prevent, and is the provision that should be retained. Repeal Issues Paper: Review of the Summary Offences Act 80 Section Offence Charges in the Last Ten Years Comment Recommendation s.69B Inciting to the commission of offences 31 The offence of inciting is covered by s.43BI of the Criminal Code and s.158 of the Police Administration Act. It is unnecessary here. Repeal s.74 Power to Regulate Traffic in Certain Cases The style is archaic and needs redrafting. This section is necessary for giving Police powers for regulating processions and preventing obstructions to thoroughfares. Redraft similarly to s.59 SA.4 Retain in SOA s.75 Prohibition of Nuisances in Thoroughfares . Any person who, in any street, thoroughfare or public place… . This old and rambling section includes ‘bill posting’ kite flying’ and depasturing goats. The main job it has is to prevent obstructions in thoroughfares. Section 6 in the NSW Act addresses the mischief in a succinct and modern way. The offence of making graffiti is also included here but graffiti needs two separate sections. One to prohibit making graffiti and another to prohibit selling spray paint cans to minors. Redraft as per s.6 NSW5 and retain in SOA. s.76 Playing musical instruments so as to annoy This is an offence against bad busking and is unnecessary. Objectionable noise is covered by the noise provisions. Repeal NOISE s.53A ‘Undue Noise at social gathering after midnight… 7 This is self explanatory. It requires a complaint from a member of the public. Retain s.53B Undue noise 20 Again this requires a complaint from the public. Retain s.53C Certificate of Police Officer as evidence. This is not an offence provision. It is a common type of averment provision, making the offence easier to establish. Retain s.53D Noise abatement orders 1 A court may issue a notice directing the noise maker abate the noise if the Court is satisfied it is ‘undue’ noise. The process first requires a complaint from a member of the public. Retain s.53E Powers of Police Police can enter premises from which the noise is coming and ask who owns or controls it. Retain s.53F Compliance with direction After a direction has been given under the previous sections it does not matter if it is a different noise next time. Retain TRESPASS OFFENCES s. 46A Forcible Entry 16 This is an offence to counter squatting and the potential associated disorder. It should be in the Trespass Act. Move offence to Trespass Act. Issues Paper: Review of the Summary Offences Act 81 Section Offence Charges in the Last Ten Years Comment Recommendation s.46B Forcible Detainer 0 This is a companion piece of legislation to 46A and should also be in the Trespass Act. Move offence to Trespass Act. DISHONESTY OFFENCES s.49A(1)(a) Illegal Use of Vehicle ‘interferes or tampers with any vehicle…’ 1517 This offence although titled ‘Illegal use’ actually prohibits interfering or tampering with a vehicle. This is different from, and of a lower order of criminality than, the offence of ‘Unlawful Use Motor Vehicle…’ (s.218 Criminal Code). Amend and retain. Change the title to “Interfering with motor vehicle or boat” It should include subsection 49A(1) (c) ”tampers with or goes on board a boat”. s.49A(1)(b) ‘works or uses any horse or other beast of burden…’ 0 This is an old fashioned offence which is unnecessary. Repeal s.49A(1)(c) ‘…tampers with or goes on board a boat…’ 24 There is still a use for this subsection in the NT. It should be grouped with 47A(1)(a) Retain s.49A(2) ‘compensation for loss or damage…’ Compensation is covered in the Sentencing Act and it is unnecessary to be repeated here. Repeal s.49A(2A) ‘…suspend any licence…’ This is a dishonesty offence not a traffic offence. There are powers in the Traffic Act to suspend licences. It is confusing to have a power to suspend a traffic licence for a dishonesty offence, and that power should not rest here. Repeal s.54 Stealing Domestic Animals 3 This offence is a stealing offence and so is covered by s210 of the Criminal Code. Repeal s.60 Valueless Cheques 53 This is a deception offence relating to passing cheques when no money is in the account. It has a reversed onus of proof and the defendant must prove he or she did not intend to defraud. Retain s.60A Fraud other than false pretences 4 This offence is covered by Criminal Code s.227 ‘Criminal Deception’ and is unnecessary. Repeal s.61 Persons suspected of having Stolen Goods 1213 This section reverses the onus of proof, requiring someone found in possession of property believed to be stolen to give an exculpatory explanation. Most jurisdictions have a similar offence. Retain s.62 Where property improperly taken or stolen is found and not satisfactorily accounted for . 0 This offence is very old and would include too many innocent people in its net. It is archaic both in language and legal concepts. Section 61 covers the field. Repeal s.65A Tampering with instruments 0 This offence is different to Criminal Code s.227 ‘Criminal Deception’, and is to do with altering odometers. Retain Issues Paper: Review of the Summary Offences Act 82 Section Offence Charges in the Last Ten Years Comment Recommendation INDECENCY and OBSCENITY s.50 ‘Indecent Exposure’ 81 The language in this section is archaic and should be brought up to date. Retain and redraft similarly to section 19 of the Victorian Act.6 s.53(1)(a)(i) Obscenity ‘…sings an obscene song or ballad…uses profane, indecent or obscene language…’ 531 There is a lot of case law defining the meaning of ‘obscene’. The word ‘profane’ with its religious overtones should be removed. Although using obscene/indecent language has been charged 531 times in the last 10 years, there is no place today for the archaic language in which the offence is written. The prohibition to singing obscene songs or ballads etc would impact harshly on sports teams and social clubs. This provision is not required as a new Offensive language section as recommended in s.47 SOA will cover this behaviour. Repeal s.53(7)(a) &(b) ‘…threatening, abusive or objectionable words or behaviour…’ 1693 ‘Objectionable words’ has been charged 891 times, ‘threatening behaviour’ has been charged 768 times, ‘objectionable behaviour’ has been charged 34 times. The new section 47 SOA covers this behaviour. Repeal MISCELLANEOUS OFFENCES s.46C Disturbing Religious Worship 3 This behaviour is covered by other sections such as s.47 SOA and by the offence of Assault (s.188 Criminal Code). Repeal s.52 Injuring or extinguishing Street lamps 0 This offence is covered by ‘Criminal Damage’ s.251 Criminal Code. Repeal s.65AA Dumping of certain containers 0 This offence is to do with dumping older style self closing refrigerators that were unable to be opened from the inside. There is no need for the provision now. Repeal s.66 Regulation of Places of Public Resort 0 This provision is covered by the Liquor Act ss. 105 & 121 and should be repealed. Repeal s.68A False Reports to Police 60 All jurisdictions have a similar offence. Retain s.68B Advertising a Reward for the Return of Stolen Property 0 This offence seems to punish the victim. There is no reason to retain such an offence. Repeal s.69 Penalty for offences where no special penalty is appointed 0 When the SOA is rewritten, all the offences will have the penalties stated in the offence provision. Section 69 will then be redundant. Repeal