Special law to enforce respect for judges … Legislative loopiness … Closing the gap between contempt and disrespect
It provides for up to 14-days porridge for anyone who does something disrespectful to a judge.
The legislation itself is disrespectful to judges. Do they really want this piece of nonsense and, if so, which ones?
Surely the common law of contempt can fit the bill for people giving judges the bird. In fact, it might give disrespectful people two bites of the cherry, the original outburst of rudeness, following by a second helping when they appear before a Madge charged with disrespect.
Apparently the Department of Justice, where former copper Troy Boy Grant is the minister, had consultations with “stakeholders” – the bar, the Law Society, Legal Aid, the DPP and the Public Defender. Why didn’t anyone nip this loopy idea in the bud?
The legislation sprouted wings after an accused refused to stand for Judge Gregory Farmer on charges of car theft and attempted murder. Milad bin Ahmad-Shah al-Ahmadzai said he’s not subject to any higher order, other than Islam.
Members of parliament weighed in with the usual fertile contributions. Craig Kelly, Liberal MHR for Hughes, who is generally regarded as a parliamentary waste of space, said:
“Failure to stand is not only contempt of the court, it’s showing contempt for our constitution, contempt for our democracy and contempt for the rule of law.”
Attorney General Gabrielle (Goody-Two-Shoes) Upton wrote to solicitor general Michael Sexton requesting that he consider charges of contempt against the disrespectful Islamite.
There is obiter from the High Court that suggests a contrary view, see McHugh J in Witham v Holloway.
The Disrespectful Behaviour Bill was introduced into parliament in the Legislative Council by David Clarke (Lib), who is mixed-up with the barbed-wire underpants brigade, on behalf of the Minister for Ageing, Disability and Multicultural Affairs. The AG was nowhere to be seen.
Clarke told the parliament that the courts would be able to keep their existing “tools”, but this was an additional tool to deal with anyone who fell between the cracks of contempt and non-contempt.
It would apply to disrespectful behaviour in the Supreme and District Courts and judges of the Land & Environment Court, but not L & E commissioners, or members of NCAT or the Children’s Court.
The disrespect has to come from defendants, parties to proceedings or witnesses, but not people in the public gallery or lawyers.
Community expectations are the guidepost for what constitutes naughty behaviour. It requires the conduct to be intentional or deliberate, involving a physical or verbal act or failure to act.
Involuntary impulses can be excused, however while the behaviour has to be intentional it doesn’t have to be intentionally disrespectful for the offence to be found. In other words non-standing people could still be liable even if they didn’t think they were being rude.
The DPP’s prosecution guidelines will also have a role, where considerations are required to be given to vulnerabilities, mental health, disability, infirmity, antecedents, culture, language, and the like.
The crown solicitor’s office will have to prepare an advice in each case, and then refer it to the solicitor general or crown advocate who, as delegates of the AG, will decide whether a disrespect prosecution should proceed.
A prosecution will have to commence within 12 months of the offence. There is no double jeopardy for behaviour that is both disrespectful and contemptuous.