Page 724 - Week 03 - Tuesday, 1 April 2008
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… strict liability offences should be designed to avoid the likelihood that those affected, particularly by the issue of an infringement notice, will pay the lower penalty simply because it is easy and convenient to do so, rather than spend the money and time to pursue what might be a legitimate defence; any agency which encouraged this tendency would be acting improperly …
It is for these reasons that the government has chosen to adopt the approach we have when it comes to which offences should be strict liability offences. The justification of enforcing the criminal law—used by Mr Stefaniak in his bill—is very broad indeed: too broad to be an appropriate justification. A characteristic of all penalties is enforcement of the criminal law. The justification of a strict and absolute liability must be more specifically expressed if it is to have validity.
I turn to some of the specific deficiencies of Mr Stefaniak’s bill. He is asking the Assembly to make definitional changes to the offence of offensive behaviour and create a new offence of offensive language in the Crimes Act. He also proposes the extension of the existing offence notice provisions in a range of other circumstances. Clause 5 of his bill shows us that the devil is in the detail. The clause proposes to change the definition of the existing offence of offensive behaviour and introduce the new offence of offensive language. The bill seeks to add the definition of offensive behaviour with the word “disorderly”, defining it to include violent or riotous behaviour.
These changes hark back to the outdated notion that the criminal law’s role is the enforcement of civility—a point that Dr Foskey raised earlier—moving us away from the hard-won gains of community policing. These changes take us backward, not forward. They also require individual police officers to use their subjective discretion in deciding what is or is not offensive.
The clause also seeks to add to the definition of “near a public place” so that it includes “near a school”. However, the current definition of “public place” in the Crimes Act already includes a place which is ordinarily private if it is at the relevant time being used for a public purpose. This would clearly encompass schools in those circumstances. Mr Stefaniak justifies the proposal for a new offence of offensive language with the view:
It is simply not acceptable for anyone in our society—innocent people going about their business—to be abused, to be subject to a tirade of often very aggressive, offensive language.
He justifies this proposal with the view that it would provide an important tool for police.
The reality is that the existing offence in the act is cast broadly to capture a range of offensive behaviour. This is because broadly framed provisions with a general application avoid technical difficulties and loopholes which can be exploited. In the territory, the settled law on what it means to behave in an offensive manner was set out in the ACT Supreme Court case of Ball v McIntyre. In that case, Justice Kerr, as he was then, stated:
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