Page 725 - Week 03 - Tuesday, 1 April 2008
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… to be offensive, the behaviour must be “calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person”.
Justice Kerr noted that different minds may well come to different conclusions as to whether something is offensive in the circumstances. (Extension of time granted.)
The offence of offensive behaviour is broad enough to capture a range of circumstances, including where a person uses language to cause the requisite degree of offence. The Supreme Court’s view, and the government agrees, is that offensive language is a matter that requires a judicial decision. There are many cases that are in a legal grey area. It is unfair to expect either police or citizens to be able to make an instantaneous judgement as to what is offensive.
The remaining clauses deal with the existing offence notice provision in the Crimes Act. Clause 6, on its face, appears innocuous and harmless. Section 441 (1) of the Crimes Act currently reads:
If a police officer—
(a) is satisfied as to the identity of a person who has attained the age of 18 years…
Mr Stefaniak’s clause 6 would substitute:
If a police officer—
(a) is satisfied as to the identity of a person …
Under Mr Stefaniak’s bill, the proposed change would give police officers the power to issue on-the-spot fines for children and young people down to the age of 10 years, the age of criminal responsibility in the territory. The government believes—and I think the overwhelming majority of the community would agree—that it is completely inappropriate for police to respond to situations involving minors such as those set out in this bill by way of an on-the-spot fine below the age of 16.
Clause 7 of Mr Stefaniak’s bill would extend penalty notices to a range of other minor offences, including consumption of alcohol. They are similar to provisions in the government’s legislation.
I turn to an issue outlined in Mr Stefaniak’s bill—with the offence of misbehaving at a public meeting being open to being dealt with by way of an infringement notice. That offence turns on whether someone at a public meeting is behaving in a manner that disrupts or is likely to disrupt the meeting. The line between when someone is being disruptive as opposed to merely engaging in vigorous debate would rarely be clear cut. I think that Mr Stefaniak and I would both be able to recall meetings where it would be difficult to make those judgements. What one person might think is disruptive, another might think is vigorous advocacy. It would not be appropriate for individual police officers to be able to fine someone based solely on their view of what are often complicated and contested matters.
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