Laws of convenience

Is the increasing reliance on Regulation by Government creating a situation where the delivery of justice is compromised? Regulatory offences are generally minor offences, or are they?

As the volume of legislation passing through all parliaments is increasing so is the amount of regulation that appends itself to acts. This article is designed to explore what has occurred in the Northern Territory and issues that have risen from the Territory experience.

The source of the issue

In the Territory the Subordinate Legislation and Publications Committee had before it a series of by-laws for a small community. These by-laws are an extension of the Local Government Act, which allows the Minister to approve by-laws for small communities and it is the committee responsibility to review them before they can come into force. The committee’s attention was drawn to a particular section in the by-laws by a member of the committee. The by-law in question read as follows:

"Obstruction of officers, etc.

(1) It is an offence for a person to obstruct, hinder, disturb or interrupt an authorised person or officer or employee of the council, or a contractor or sub-contractor to the council or employee of the contractor or sub-contractor, in the proper execution of his or her work or duty.

(2) An offence against clause (1) is a regulatory offence."

The intention of this by-law was obviously to make it an offence to obstruct a council officer. Needless to say this is common in laws and by-laws around the world. However the second sub-section has the effect of making a breach of this section a regulatory offence. This provides a good example of the problem that this article attempts to address.

Regulatory offences generally

It is important at this stage to discuss some issues in general terms on the effect of regulatory offences in the delivery of justice.

In the Territory the Criminal Justice System is codified. This then means that the Criminal Code Act of the Territory outlines defences to actions brought on in Territory law. It does this by introducing the concept that all things in the Territory are essentially unlawful unless they are "authorised, justified or excused".

Different jurisdictions will have different approaches to the structure of their criminal systems. While many jurisdictions have codified their criminal law some still rely on the old common law descriptions of defences. In any instance the assessment as to what is a regulatory offence and what isn’t may still be found in its common law roots.

However, the Code expressly limits the defences available to people charged with regulatory offences. This is done with limitations applied.

There are a set of general rules that help determine whether it is appropriate to deal with an offence as regulatory offence or not. This list has its roots in the common law.