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Laws of convenience

By John Elferink - posted Friday, 15 February 2002


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.

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(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.

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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.

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This article was first published in The Parliamentarian.



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About the Author

John Elferink is member for Macdonnell and Northern Territory Shadow Minister for Aboriginal Affairs, Parks and Wildlife, and Arts and Museums.

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