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Laws of convenience

By John Elferink - posted Friday, 15 February 2002


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.

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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:

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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.

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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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