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.

In evidence to the committee Ms Zoe Marcham, Deputy Director Policy Attorney-General's Department stated:

"In making this determination the relative value of the benefits to society against the damage to individual regards can be had to the following factors:

(a) The nature of the activity which gave rise to the offence is one that carries little, if any, social stigma. Thus, for example, there is little social stigma in being found guilty of jaywalking even if the convicted jaywalker could have raised a Part II defence or excuse.

(b) The activities regulated are normally those engaged in by many people such that even minor individual breeches of standards may give rise to considerable damage to the public order, health, safety or morals. An example is that of parking or other traffic offences.

Most of the offences under the Traffic Act are regulatory offences with the exception of two.

(c) That a circumstance may be exceptional in there is a social imperative in ensuring the law is not breached. Thus the sheer need for society to function in an orderly, predictable, safe manner justifies traffic management, environmental and food quality offences being classified as regulatory.

One example is failing to keep a dog under control.

(d)That there can be no reasonable excuse, for example failing to lodge returns to government or taxation purposes, failing to return library books on time, picking flowers in public places, leaving shopping trolleys in public places."

A regulatory offence would have to satisfy all of the above criteria to be treated as a regulatory offence.

The offence of obstructing a council officer in light of the test of a regulatory offence

As discussed above, the by-law in question sought to make it an offence to obstruct a council worker in doing their duty. There is an interesting parallel with this offence and an offence in the Police Administration Act, which makes it an offence to hinder or obstruct a police officer in the course of their duty. The section states:

"A person shall not hinder or obstruct a member in the execution of his duty or aid or abet any other person to hinder or obstruct a member in the execution of his duty."

This then represents an anomaly in the law that helps to highlight the very heart of the issue this paper seeks to address. If a police officer in the Territory in the execution of his/her duty conducts himself/herself in a manner that is profoundly insulting to a member of the public that they are dealing with, and as a consequence of that conduct the person obstructs the police officer then a court may turn its attention to a defence in the Criminal Code. (An example would be an officer who acts like a ‘little Hitler’) The defence in the Criminal Code is called provocation.

Naturally, a person charged would still have to satisfy the court that they could rely on the defence but the point is that this same defence is not available to a person who is charged under the by-laws by a council worker. A council may bring an action against a person and they cannot rely on the same defences that would be afforded in the case of a police officer. This is important if you consider the police to be trained professionals. The council worker in the by-laws may be untrained or even a contractor acting on behalf of the council. The effect is that there is greater protection in law for a person against a police officer who already has a higher level of accountability than there is for a council employee.

The matter is clearly a matter of justice. A lower trained person with lower level of accountability, is afforded, by this regulation, greater ability to conduct themselves in a fashion that would not be acceptable.

There are any number of examples that can be given in relation to this by-law alone. Indeed when consideration is given to the many defences offered by the Criminal Code the number of possible examples increases exponentially.

It is the contention of the author that such a charge does not meet the criteria of a regulatory offence as described above. Namely, such a charge of obstructing a council worker does carry a social stigma and that there is cause to have the matter heard summarily with the full range of defences available to a person so charged. The Local Government Act does create some defences to a person charged, however, they are very limited and have little of the scope that is afforded by the Criminal Code.

This matter was then put to the Attorney General of the Territory and he responded:

"In my view, the offence of obstructing council employees and subcontractors as set out in by-law 17 should not be classified as a regulatory offence. I am also concerned about the legislation such as the Motor Vehicles Act, where the offence of failing to comply with officers’ requirements is classified as regulatory, and the Fisheries Act, where all offences against the Act are classified as being regulatory.

There is clearly a need to develop guidelines for the use by Agencies and Parliamentary Counsel in the creation of regulatory offences. I have directed my Department to develop such guidelines and will provide the same to the committee as soon as they are settled."

The flow effects

The response from the Attorney General has the effect of demonstrating how insipid this problem may become. In fact the by-laws that came before the committee were modelled upon the 66 other sets of by-laws in the Territory. It is clear from the Attorney General’s response to the issue that regulation has become an area of concern across a host of other legislation.

The nub of this issue is that regulatory offences remove the right to a fair hearing. In some instances, as it has been outlined in this paper, this is entirely proper. Nevertheless, there seems to be an increasing trend to rely on this path. Recently in the Territory the Trespass Act was amended to make all of the offences in it regulatory. The problem is that increasingly the use of legislation in this fashion is a matter of convenience for process rather than the acknowledging the rights and protection of people charged. The Attorney General in his second reading speech commented:

Last year, the Commissioner for Police wrote to me requesting amendments to the Trespass Act in order to eliminate difficulties experienced with prosecutions under the act. In particular, the Commissioner highlighted that the offences appeared to be a combination of both regulatory offences and simple offences. Criminal offences in the Territory fall into two categories. There are those offences that require a guilty mind, which are referred to as simple offences and crimes, for example rape, robbery and murder. There are also those minor offences where the state considers that a criminal sanction is necessary in order to regulate affairs of citizens in an orderly manner regardless of whether the offender intended to actually commit the offence.

The process of creating legislation should not be conducted with the primary function of making the system easier for administration purposes. Certainly this needs to be borne in mind but not at the expense of justice.