Summary Offences (Amendment) Bill

The Hon. J. P. HANNAFORD (Attorney General, Minister for Justice, and Vice President of the Executive Council) [8.55]: I move:

That this bill be now read a second time.

I seek leave to have my second reading speech incorporated in Hansard.

Leave granted.

The purpose of the Summary Offences (Amendment) Bill is to remove the option of sentencing a person to imprisonment for the offence of offen-sive language. Currently the penalty for this offence is a $600 fine or imprisonment for 3 months. The proposed amendments will enable a court to instead sentence a person convicted of offensive language to either a $600 fine or a community service order.

The object of the Summary Offences Act when introduced into Parliament in 1988 by this Government was to consolidate and reform offences against public order. The Government had a clear mandate to reform the law based on its pre-election commitment of reducing street crime.

The Act repealed the Offences in Public Places Act 1979, and re-intro-duced the offences and gaol penalties for offensive language and offen-sive conduct as contained in the former Summary Offences Act 1970.

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In his Second Reading Speech and in the Parliamentary debates, the then Attorney General, the Hon John Dowd, QC, emphasised that imprisonment was to be used as a last resort and its use would be the subject of continued scrutiny by the Government.

Recent comments on the impact of this section, particularly in relation to Aboriginal people have reinforced the Government's concerns over the custodial penalty for the offence of offensive language.

Recommendation 86 of the Royal Commission into Aboriginal Deaths In Custody specifically criticised this offence, stating that it should not be the subject of arrest or charge.

Also in early 1993 Amnesty International released a report entitled Australia: A Criminal Justice System Weighted against Aboriginal Peo-ple which singled out the the offensive behaviour and offensive lan-guage provisions as key factors leading to a disproportionate increase in the arrests of Aboriginal people.

The present amendment to remove the imprisonment penalty for offensive language, in conjunction with the existing right to bail and the adop-tion of the Justices (Amendment) Act 1993, which allows police to issue court attendance notices, in lieu of arrest, for prescribed offences including offensive language, will address these concerns.

It will also benefit the economic and social stability of the families of offenders. Their welfare, in particular where juvenile or Aborigi-nal offenders are involved, will be more carefully protected.

Very considerable progress has been achieved by this Government in implementing the Recommendations of the Royal Commission into Aborigi-nal Deaths in Custody through the national and New South Wales responses to the Commission's Report. As a further important part of the New South Wales response, the Government considers that it is now appropriate for the imprison-ment penalty for the minor offence of offensive language to be removed.

I commend the bill to the House.

The Hon. R. D. DYER [8.56]: The Opposition supports the Summary Offences (Amendment) Bill, the object of which is to amend the principal Act, the Summary Offences Act of 1988, to change the penalty for the offence of using offensive language in or near or within hearing from a public place or a school from a fine or alternatively imprisonment to a fine or alternatively the imposition of a community service order. Currently the penalty for the offence of using offensive language is the same as that for the offence of behaving in an offensive manner. That is, a maximum fine of $600 or maximum imprisonment for three months. The amendment will change the penalty to a $600 fine or the imposition of a community service order.

The amendments will remove the option of sending a person to prison. The penalty for offensive conduct will still carry a fine of $600 or, in the alternative, a period of imprisonment for three months. I note that the proposal being given effect to by this bill follows recommendation 92 of the Royal Commission into Aboriginal Deaths in Custody, which was to the effect "that governments which have not already done so should legislate to enforce the principle that imprisonment should be utilised as a sanction of last resort". It is noteworthy that the penalty imposed for using offensive language quite commonly and disproportionately falls upon Aborigines, particularly in western and northwestern New South Wales. A penalty quite often results in Aborigines receiving a term of imprisonment.

The Royal Commission into Aboriginal Deaths in Custody inquired into the high incidence of imprisonment of Aborigines and the tragic outcomes from that, which can include deaths in custody. It is clearly in the public interest and also quite obviously in the interests of Aborigines that their committal to prison for a comparatively minor offence should be minimised, or, in the case of offensive language, eliminated entirely. With regard to an alternative penalty, that is the imposition of a community service order, recommendation 94 of the report of the Royal Commission into Aboriginal Deaths in Custody was as follows:

a. Sentencing and correctional authorities should accept that community service may be performed in many ways by an offender placed on a community service order.

b. Consistent with the object of ensuring that offenders do not re-offend, approval should be given, where appropriate, for offenders to perform Community Service work by pursuing personal development courses which might provide the offender with skills, knowledge, interests, treatment or counselling likely to reduce the risk of re-offending.

The move by the Government to provide that courts are entitled, in the alternative, to impose a community service order rather than a fine or imprisonment is a welcome move forward. I ask the Government and its advisers to give close consideration to what the Royal Commission into Aboriginal Deaths in Custody had to say in recommendation 94 regarding the form of community service work that might be ordered by a court. It is one thing to impose some fairly meaningless task - not exactly painting rocks white but some task that might assist someone else but might not necessarily help the offender - but it is another thing to impose a form of community service work that would not only help society or some section of society, but in addition would help the offender to reform and not re-offend. On behalf of the Opposition I support the measure.

The Hon. JENNIFER GARDINER [8.59]: I also support this important amendment to the Summary Offences Act 1988, which will remove the penalty of imprisonment for offensive language. At present the Act provides that a person shall not use offensive language in or near, or within hearing from, a public place or school. The offence currently carries a maximum penalty of six penalty points or $600, or imprisonment for three months. This bill repeals that penalty of imprisonment for the offence of offensive language and provides instead a maximum penalty of $600 or a community service order which shall not exceed 100 hours. The Government's objective in amending the Summary Offences Act in 1988, at which time there was extensive debate, was to consolidate and reform offences against public order. The then Attorney General, Mr Dowd, said when introducing the bill that imprisonment was to be used as a last resort for this offence. He undertook to keep the matter under scrutiny. In keeping with the commitment by the then Attorney General, the Government has now proposed this amendment.

There has been a great deal of public debate about the impact of section 4 of the Act upon Aboriginal people. In particular, there has been a great deal of disquiet about the imposition of custodial penalties for the offence of offensive language. As
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has already been mentioned, this penalty was specifically referred to in recommendation 86 of the Royal Commission into Aboriginal Deaths in Custody, which criticised the offence, stating that it should not be the subject of arrest or charge. In addition, a report by Amnesty International entitled "Australia: A Criminal Justice System Weighted against Aboriginal People" made specific reference to the offensive language provisions of the New South Wales Summary Offences Act as one of the contributing factors to the disproportionate increase in the number of arrests of Aboriginal people.

The Government believes that the removal from the Act of the penalty of imprisonment for offensive language, combined with the existing right to bail and the adoption of the Justices (Amendment) Bill, which was recently debated and which allows police to issue court attendance notices in lieu of arrest for prescribed offences, including offensive language, should address the concerns of the Royal Commission into Aboriginal Deaths in Custody and the concerns expressed in the Amnesty International report, and will reduce the overall rates of imprisonment of Aboriginal people. The amendment, therefore, is important and will satisfy many people who have expressed disquiet at the disproportionate number of Aboriginal people locked away because of breaches of the present Act. I support the bill.

The Hon. ELISABETH KIRKBY [9.3]: The Australian Democrats support the Summary Offences (Amendment) Bill. The bill will remove the option of sentencing a person to imprisonment for the offence of offensive language. The court will be able to impose a $600 fine, as is the case under the present legislation, or make a community service order. Street offences legislation originated from the belief that police should be responsible for the general supervision of public behaviour and, therefore, the political and social morality of the community. These blanket powers have always been a source of concern. It has been reported that working-class communities in nineteenth century England resented what they regarded as political surveillance. There has also been considerable debate about the extent to which the State has a moral obligation to regulate the moral life of its citizens. Furthermore, there is the question of what standard should be promoted and whether the rights of citizens, regardless of whether they belong to the dominant group, are infringed. The present offensive language provisions of the Summary Offences Act 1988 are clearly the result of a police ethic which holds that the State should uphold certain values which it is assumed are widely held by the community. Section 4 states:

(1) A person shall not:

(a) conduct himself or herself in an offensive manner in or near, or within view of hearing from, a public place or school, or

(b) use offensive language in or near, or within hearing from, a public place or school.

Maximum penalty: six penalty units or imprisonment for three months.

(2) It is sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in a manner alleged in the information for the offence.

However, police and courts are given very broad powers to determine what is considered offensive. These provisions are similar to those in the Summary Offences Act 1970. The penalty for the use of unseemly words under the 1970 Act was $200 or imprisonment for three months, but the Australian Labor Party expressed concern at the vagueness of the definition of such an offence. Indeed, the Hon. F. J. Walker argued in Parliament at that time:

Such terminology operates only to give the widest possible latitude to the police and the magistrates . . . Sweeping dragnet terminology means that a particular act will be legal or illegal according to the subjective opinions of the police officers and magistrates involved.

The social control elements of both pieces of legislation are obvious. The Summary Offences Act 1970 was enacted by the Askin Government as part of a push to maintain law and order during the height of protests against the Vietnam War. The Summary Offences Act 1988 was introduced following the Greiner Government's push for law and order. The New South Wales Police Association was also calling for powers greater than those afforded police by the Offences in Public Places Act 1979. I opposed the Greiner Government's legislation because it was obvious that the police already had sufficient power. The Australian Democrats believe that the broad definition of the offensive language provisions in the Summary Offences Act 1988 are unacceptable and result in arbitrary social control by dominant groups in society rather than protecting citizens from harassment. The Wran Government grappled with the problem of how to define offensive language in a more precise manner. In 1979 the Summary Offences Act 1970 was repealed by the Australian Labor Party and replaced by the Offences in Public Places Act 1979. The Government then attempted to tighten up the legislation so that only more serious instances of offensive language would incur the penalty. Section 5 of the Offences in Public Places Act stated:

A person shall not, without reasonable excuse, in, near or within view or hearing from a public place or school behave in such a manner as would be likely to cause reasonable persons justifiably in all the circumstances to be seriously alarmed or seriously affronted.

The intention was to draw a distinction between mere rudeness and words which would cause a reasonable person to be seriously affronted. Furthermore, the penalty for causing serious alarm or affront was reduced to a $200 fine. The different approaches to offensive language provisions in the street offences legislation have had a disturbing impact. A 1989 study by Roseanne Bonney of the New South Wales Bureau of Crime Statistics examined the first six months of the operation of the Summary Offences Act 1988. The study found that charges of offensive behaviour relating only to bad language increased from 23 per cent of arrests under the Offences in Public Places Act to 33 per cent of arrests under the Summary Offences Act 1988. That information can be found on page 15 of the study. In Bourke, Brewarrina, and Walgett, whose populations all have a high percentage of Aborigines, arrests for offensive language alone increased from 58 per cent of all arrests under the Offences in Public Places Act to 64 per cent of all arrests under the Summary Offences Act.

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Raw data collected by the New South Wales Bureau of Crime Statistics shows that, in matters finalised during 1990 at Local Court level, 20 people received a fixed term of imprisonment because of the offensive language provisions. However, I believe that the problem seems to lie partly in the highlighting of offensive language as an offence in itself. People charged under street offences legislation have mainly been charged for bad language, but the percentage of people charged for bad language alone in towns where the population contains a high proportion of Aborigines has always been high regardless of the approach taken to the definition of offensive language. According to the New South Wales Anti-Discrimination Board study of street offences by Aborigines in 1982, 56.1 per cent of people in Aboriginal towns charged in 1978 under the legislation were charged with bad language. This compares with 61.1 per cent in 1980 under the stricter definition. The figure for the entire State was only 43 per cent.

Police were also by far the largest victims of offensive language - 43.2 per cent in 1978 and 75.4 per cent in 1980. Moreover, in spite of the intention of the Offences in Public Places Act in 1979, people were still being sent to gaol simply for using unseemly language. In order to answer the question whether making offensive language part of street offences legislation serves any purpose, it is first necessary to examine offensive language as a phenomenon. Linguists tend to divide the vocabulary into whether it is formal or colloquial; they tend to be descriptive rather than prescriptive about the language. The editor of the Macquarie Dictionary, Professor Delbridge, stated in his introduction to that dictionary:

. . . it is unrealistic in a lexicographer to interpose personal judgment or even committee judgment, on the basis of taste, between a man and the words he swears by . . .

Judgments as to whether language is offensive or not are largely subjective. Different people will have different standards. It is also most important to remember that the use of language is very much determined by cultural factors, context and circumstance. This is particularly important when considering how the offensive language provisions of street offences legislation affect Aborigines. The Anti-Discrimination Board makes a most pertinent point when it argues that:

Aborigines have, to a great extent, been denied their cultural idiom and had English imposed on them. However, they have adapted English, in many areas, to suit their own needs and requirements.

Consequently, words considered offensive or taboo to someone with an English cultural background may have a slightly different connotation to someone from an Aboriginal background. It should also be noted that there are many double standards in operation with regard to offensive language. There are many expressions of racial denigration which Aborigines find offensive and which are most certainly used by the community, including police officers, and yet there have been no charges laid against the users of this language. The fact that there is a higher percentage of charges involving bad language in Aboriginal towns, and that the words most often used in such cases are widely used in the community, points to other reasons why people are charged for bad language.

The particular context in which the bad language is used is a key consideration. Obviously, the use of language to intentionally insult and harass is unacceptable and should be an offence. However, bearing in mind that police are by far the single largest group of people against whom bad language is used, it can be argued that the offensive language provisions of street offence legislation are an unwitting tool of institutional conflict. Relations between police and Aborigines, for instance, are fragile at best and often antagonistic. Police tend to reflect the attitudes of the broader community and, unfortunately, the conflict between Aborigines and the European settlers of Australia has yet to be satisfactorily resolved. To say the least, Aborigines are marginalised in modern Australian society.

There are many institutional factors which increase the likelihood of Aborigines being entangled in the criminal justice system. There is a tendency to overpolice the Aboriginal community. Police tend to concentrate their resources in areas where they expect trouble. This perception of Aborigines being a source of trouble may arise from historical mistrust, suspicion or prejudice, the high visibility of Aborigines because of skin colour, low socioeconomic status and different cultural notions of public space. Police attitudes may also be based on observed behaviour, for example, drunkenness, without allowance or understanding of the reasons for such behaviour. Aborigines are understandably antagonistic towards figures of authority, for historical reasons and because of the constant surveillance of Aborigines by police. The confrontation is frequently about a challenge to the authority of police, even if only verbal. This is not sufficient reason to charge or gaol someone. The Royal Commission into Aboriginal Deaths in Custody made a specific recommendation that:

The use of offensive language in circumstances of interventions initiated by police should not normally be occasion for arrest or charge.

There has also been evidence from the Anti-Discrimination Board in its 1982 Study of Street Offences by Aborigines that magistrates have not been examining the nature of the offence - the actual harm which has been caused - and using their discretion to impose an appropriate penalty proportionate to the means of the offender. In spite of the intention of the Offences in Public Places Act 1979, people were still going to gaol for using bad language. This was either because they could not afford to pay fines set by magistrates or because they saw their refusal to pay the fine as an act of defiance.

Careful monitoring of magistrates and whether the recommendations contained in the Anti-Discrimination Board's Study of Street Offences by Aborigines have been put in place needs to be undertaken. The Australian Democrats believe that every effort must be made to minimise use of offensive language provisions of street offences legislation. Even if it is absolutely necessary to use those provisions, gaol sentences for the use of
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offensive language are clearly inappropriate. Either monetary penalties should be imposed with regard to the means of the offender and the actual harm caused, or, failing that, a non-custodial penalty such as community service should be served. Specific provision should be made that fine defaulters are given a non-custodial penalty. This approach cannot be emphasised too strongly. I support the bill.

The Hon. R. S. L. JONES [9.18]: Honourable members will be aware that recently I introduced my own private members' bill, the Summary Offences (Amendment) Bill. I gave notice of that about February or March of last year and it has taken that long to get to the top of the notice paper. I am glad that the Government has moved a little towards what I was proposing in that legislation, that is, to at least remove gaol sentences for offensive language. I wanted to remove the offence of offensive language altogether. It is a fact that some people use what some other people term offensive language as a matter of normal course in everyday life. They use it in their work, they use it in the street, they use it all the time. Unfortunately, what has happened is that this has been used in particular against the Aborigines in this State who are being gaoled in ever-increasing numbers for this and other offences. This is the International Year for the World's Indigenous People and it is alarming to note that, in the past four years, the number of Aborigines and Torres Strait Islanders being gaoled has increased by 75 per cent from 415 in 1989 to 729 in 1993.

The total prison population has increased by 45 per cent, from 5,261 to 7,632. The Aboriginal and Torres Strait Islander proportion of the prison population has increased from 7.89 per cent to 9.58 per cent - a significant increase. Unfortunately, when Aborigines congregate in public places in some areas they are harassed by police, they then tend to swear. They are arrested for swearing, and often resist arrest and are then charged with assault. Some months ago I asked a question of the police Minister about this issue, and I supplied statistics in that question. Clearly, the number of arrests of Aborigines is out of proportion to the number of arrests of members of the white population. This has caused a problem and that is why the legislation has been introduced. The Government would not be moving in this direction unless it was aware that there was a significant problem. Though only a few dozen or so people have been imprisoned for offensive language in the past two or three years, that is far too many.

In this International Year for the World's Indigenous People we have moved this small step towards protecting those and many others in the community who use language that some consider to be offensive, but which in many instances are ordinary, everyday Anglo Saxon words. For 1,000 years there has been a form of discrimination against the Anglo Saxon language. When the French conquered England in 1066 the Anglo Saxon language fell largely into disuse. French superimposed the old English language and many common English words used in some areas were not used because they were believed to be of low class or offensive. So in a sense what some regard as offensive language others regard as a normal part of the original Anglo Saxon language. The Australian Democrats support this tiny step towards reform of the Summary Offences Act. I ask the Minister, however, what will happen if people are unable to pay their fines? I presume they will be ordered to perform a community service. But if they fail to perform that community service, for whatever reason, what will happen then? What will happen if an Aborigine is unable to pay a fine and, for example, does not turn up to perform his community service?

The Hon. D. F. MOPPETT [9.22]: I had not intended to speak in this debate until I heard the Hon. Elisabeth Kirkby and her colleague the Hon. R. S. L. Jones paint a specious picture of the Summary Offences Act and the offence of offensive language. We often hear the rather naive and facile argument that swearing is the common vernacular of a particular group and, therefore, it is monstrously wrong that they should be arrested for using what is their everyday language. I took the trouble to contact police officers who have the difficult task of maintaining law and order in some of the northwestern towns from which so many of the quoted statistics are derived. I have carefully observed the situations in which interventions are made, and it is ridiculous to suggest that police eavesdrop on people who, in the normal course of conversation, happen to let go an "f" or a "c" or something like that, and march them down to the police station. This loose correlation between the statistics of numbers of police and arrests between the passing of amendments to the Summary Offences Act, which made this an offence, and the rise of police intervention leads one to the false conclusion that what is involved is merely a process of expressing oneself with expletives and vulgarities. It is always a prerequisite of the operational requirements under which police operate that a real offence is committed by way of threatening behaviour.

One policeman said that, provided it was done calmly, people in the community of a particular town could describe a person in whatever terms they chose, no matter how vulgar or offensive the actual words taken literally were, but it was only when they did so with threatening gestures and in a way that created general alarm in the area in which the offence took place that police were in any way empowered to act. It is all right for those who live on the coast, the North Shore or in the eastern suburbs to pontificate about social theories of how rural towns should operate, but it is a different matter to live in those towns. These adjustments to the law were made after careful consideration and in response to a need expressed not only on behalf of the white community but also the Aboriginal community, who take no pride in the fact that these confrontations with police and other members of the community take place frequently and are accompanied by threatening as well as offensive language.

Though I applaud the move by the Attorney General to remove the gaol sentence provision from the Act, it is wrong to suggest that this has been an insensitive move to try to curtail offensive behaviour in the streets of many country towns. I was particularly interested to see in a "Four Corners" television presentation last night what might be seen
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to be a real change in public opinion on this whole issue. Many Aboriginal people were interviewed, particularly former and present residents of the Box Ridge settlement near Coraki in New South Wales. They rejected the paternalistic approach to their problems and said that until they accepted the disciplines of society there was really no future for their community. Again, in a conference that I attended in Walgett I was interested to hear how that community rejected the rhetoric that has plagued us perhaps for 10 years, that the solution to their problems was to pump more money into the community instead of getting down to the roots of their discontent. Certainly the parents of the children, and in particular their mothers, do not condone in any way the confrontations and threatening behaviour that are singled out under this section of the Summary Offences Act. I applaud the removal of the gaol sentence option but I believe that it is important to maintain equilibrium in society in many country towns and, I am sure, in many suburban situations in Sydney.

The Hon. J. P. HANNAFORD (Attorney General, Minister for Justice, and Vice President of the Executive Council) [9.28], in reply: I thank honourable members for their support of this legislation, which is an important step forward for the justice system. I address two issues raised by the Hon. R. S. L. Jones relating to his desire that the offence of offensive language be withdrawn from the statute books. In my view, a view strongly held and reinforced by all of the women's groups that I have had reason to meet with, the offence of offensive language should be retained. A number of women have said to me that to walk down the streets of a country town or a metropolitan suburb late on a Saturday, a weekend or evening and be confronted with the abuse that emanates from hotels should not have to be tolerated. To remove that charge would be to encourage that type of behaviour. That would certainly undermine the confidence of the community in relation to that important sector of our justice system.

The second issue raised by the Hon. R. S. L. Jones related to what happens when a person does not pay the fine. The penalty for offensive language will now be the payment of a fine or the serving of a community service order. However, the fines and forfeited recognizance legislation will apply to this offence. Therefore, it is open to the court, in the event that it takes the view that a community service order is not appropriate but is aware that the defendant cannot pay the fine, to have the defendant enter into a recognizance or some other order regarded as appropriate for the offence. If the offender is not able to pay the fine, the community service order may be an appropriate alternative. However, where the person fails to pay the fine, whether it was imposed originally for the offence or was imposed upon re-sentence for a breach of the community service order, the defendant shall be subject to the same enforcement procedures as for other fine defaulters. Under the Government's current seven-day notice scheme, which was introduced by the Government in 1989, fine defaulters may elect to pay the amount of the warrant issued for fine default, seek an extension to pay the fine, seek to have the warrant converted to community service orders or enter into some other arrangements to pay. There are myriad options to enable the defendant to comply with the law.

Only those who do not comply with those vast array of options will be imprisoned. People will be imprisoned because they fail to comply with the law. However, fine defaulters represent only a small percentage of the New South Wales prison population - only 0.08 per cent of all persons who are fined are imprisoned for fine defaulting. Under our system you would have to work darned hard, if I can use the vernacular, to get into gaol for failure to pay a fine. The clerks of the court are usually very lenient and try to help a person who cannot pay a fine to come to some arrangement so they can avoid going to gaol. I take the view that, as the end consequence, gaol must be an option. Public confidence in our justice system will be undermined if the community knows that people against whom a fine is imposed can, at the end of the day, just ignore the penalty. Prison has to be available as an end result, but it is something that should be avoided. I assure the House that I have programs under way at the moment to further provide opportunities for people to avoid going to gaol. I commend the bill to the House.

Motion agreed to.

Bill read a second time and passed through remaining stages.