Scrutiny of Acts and Regulations CommitteeInquiry into the Summary Offences Act 1966,
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Though not part of the terms of references, the Committee recommends that the Department of Justice should investigate the integration of summary offences within the Crimes Act. |
The Committee notes that the integration of summary offences into the Crimes Act could occur in conjunction with other amendments relevant to summary and indictable offences. For example, indictable property offences, such as theft, offences related to deception or damage to property could be made triable summarily depending on certain ‘triggers’, for example if the value of the property in question did not exceed a fixed amount.
The Committee is mindful of the need to take account of the potential effect that its recommendations may have, particularly the resources that might be required to implement its recommendations.
This reasoning influenced several recommendations in the Discussion Paper which concluded that, in some instances, it was desirable to maintain what appeared to be to a duplication of offences in both the Summary Offences Act and the Crimes Act. For example, the Committee believes that serious assaults should be dealt with under the Crimes Act 1958, whilst an offence relating to lower-level or minor assaults should also be maintained in the Summary Offences Act 1966. This would allow for minor matters to be dealt with summarily in the Magistrates’ Court, resulting in a more appropriate use of resources.
Several submissions explained that summary offences provide a useful means to deal with behaviour that may merit potential sanction, but might not be sufficiently serious to warrant the time and expense involved in a trial on indictment. This evidence suggests that in some cases the apparent overlap between summary offences and indictable offences in other statutes may be desirable.
An example can be drawn from conduct involving damage to property. An act that causes damage to property may be charged as the indictable offence of criminal damage, under section 197 of the Crimes Act 1958, or as the offence of wilful damage to property, under section 9(1)(c) of the Summary Offences Act 1966. In view of this apparent overlap the Committee recommended in the Discussion Paper that section 9(1)(c) be repealed.[4] The evidence received by the Committee has led it to conclude that, despite the obvious similarity between the two offences, the summary offence contained in section 9(1)(c) (the summary offence of wilful damage to property) should be retained. The representative of the Magistrates’ Court explained
"…there is room for a low level criminal damage and a separate [offence] for the more serious offences".[5]
The Chairman Bar Association of Victoria agreed that
"…less serious forms of criminal damage or wilful damage should be dealt with by way of a summary offence without resort to the Crimes Act".[6]
In view of this evidence the Committee concluded that the summary offence of wilful damage to property provides a useful means by which relatively less serious criminal behaviour may be heard and determined in a manner that is commensurate with the conduct in question.
In other cases, a summary and an indictable offence may cover conduct that is fairly similar in character, but the relevant summary offence may serve a useful specific function.
This point was made in many submissions that addressed section 38 of the Summary Offences Act. That provision creates an offence for taking or using a vehicle without the consent of the owner. The Discussion Paper recommended that this provision be repealed because any conduct that might fall within the scope of the provision would also constitute theft.[7] Many submissions suggested that section 38 provided a useful means to deal with cases where a young person had taken a car for a short period, perhaps from his or her parents or employer. If such a person is charged under section 38 they may experience the salutary effect of a criminal proceeding, but not face the significant adverse consequences that could result from a conviction for an indictable offence of theft.
The Summary Offences Act includes several offences related to public drunkenness. Under section 13 a person who is found drunk in a public place is guilty of an offence. No disorderly or disruptive behaviour is required to be proved. Under section 14 it is an offence for a person who is found drunk and disorderly in a public place. Section 16 prohibits a person who, while drunk, behaves in a riotous or disorderly manner in a public place.
The preliminary position of the Committee contained in the Discussion Paper was that these provisions should be replaced with an offence of the following nature.[8]
Any person who
(a) suffers any significant physical impairment; or
(b) causes a nuisance in a public place
as a consequence of the consumption of alcohol, illicit drugs or similar substances shall be guilty of an offence.
Shortly after the Committee released the Discussion Paper for public comment the Victorian Parliament’s Drugs and Crime Prevention Committee released the final report of its inquiry into public drunkenness.[9]
That report provided a detailed analysis of this issue and made several recommendations relevant to the Summary Offences Act.
The Drugs and Crime Committee recommended that sections 13, 14 and 16 be repealed and comprehensive new legislation dealing with public intoxication be enacted. It also recommended that any new legislation concerning public intoxication should enable the apprehension and detention of intoxicated persons on a civil rather than criminal basis. The Committee also proposed that any new legislation should constitute only one part of a much wider program to detain and manage people found to be intoxicated. It recommended that a key part of its proposals, the establishment of ‘sobering up centres’ to detain and treat people found intoxicated in public places, should be established before any move to decriminalise public drunkenness took effect.[10]
The Committee has examined the proposals of the Drugs and Crime Prevention in detail and concluded that they provide a useful basis for further action on public intoxication.
The Committee agrees that if public drunkenness is to be decriminalised, this should not occur until substantial progress has been made on alternative programs to receive and manager persons found intoxicated in public places.
The Committee supports in principal the repeal of sections 13, 14 and 16 of the Summary Offences Act, but believes that this should not occur until appropriate alternative arrangements to manage public drunkenness are developed.
At present, section 17 of the Summary Offences Act prohibits profane, indecent or obscene language or threatening abusive or insulting words. The section also prohibits a person from behaving in a riotous indecent offensive or insulting manner.
The Discussion Paper suggested that these provisions were too specific in their operation. The Committee recommended that the existing offences be replaced by three new generic offences that prohibited offensive, threatening or obscene conduct or language, or the display or material, depictions or representations that are offensive or obscene. That recommendation attracted a significant amount of comment.
Almost all submissions on section 17 agreed that the provision in its current form was unsatisfactory. Many suggested that the intended scope and meaning of the provision was unclear and that this uncertainty enabled the provision to be applied in an indiscriminate manner.
Several submissions also suggested that the social standards had changed in recent years to such an extent there was little, if any, general agreement about what conduct or language could be regarded as offensive. As a result it was suggested that summary offences governing language and behaviour were not appropriate and should be repealed. Many other submissions agreed that the existing provisions were unclear but supported the existence of some form of general offences prohibiting offensive language and behaviour.
The Committee has concluded that general offences prohibiting offensive language and conduct should be retained, though the existing offences should be amended in the manner suggested by the Discussion Paper.
There was wide agreement that, while the precise meaning of ‘offensive’ or any similar term was relatively subjective, a summary offence of this nature should be available to counter behaviour that was generally regarded as unacceptable and deserving of some form of punishment. The representatives of the Magistrates’ Court agreed that an offence of this nature can and should be determined by reference to changing social standards. The Magistrates noted that
"…the Court is required to interpret the word ‘offensive’, it is one of current mores of society…things have moved on since the 1950’s". [11]
The Chairman of the Criminal Bar Association of Victoria agreed that, stating
"…it is entirely appropriate for the courts to reflect…current community standards".[12]
The Committee also received evidence which supported the inclusion of a requirement of intent as an element of any new or revised offence of offensive language and conduct.
The Committee has concluded that a requirement of direct intention on the part of a defendant, which would require proof that a defendant intended that his or her language or conduct would actually offend a person or persons, would be difficult to administer. The Committee believes that such a requirement would not take account of the objective aspect of such offences, i.e. that language or conduct may offend a significant sector of the community even though the defendant may not directly intend the conduct or language to have such an effect. The Committee believes that offences of this nature should include a requirement that the defendant knew or ought to have known that his or her language or conduct was likely to be offensive to other people.
The Committee believes that suitably worded offences of this nature are appropriate and would command broad public support.
Section 42 of the Summary Offences Act prohibits the tattooing of persons under eighteen years of age. The Discussion Paper noted that this provision raised issues of both heath and parental consent and proposed that the matters of safety and infection control for equipment and procedures for tattooing were covered under other legislation.
The Discussion Paper also suggested that the issues of parental supervision and consent of young persons who were affected by section 42 should be deal with by a specific licensing regime to regulate the conduct of persons who provided tattooing services.
Many submissions noted that body piercing of young persons, which has become widespread and more prevalent than tattooing in recent times, raised similar issues of consent, parental supervision and safety and infection control.
The Committee received several submissions from parents, who expressed concern at the ease with which young people could receive body piercing treatments. The Committee also received submissions from medical authorities suggesting that body piercing services were not subject to sufficient regulation and that potential customer frequently receive insufficient information about the possible health risks associated with body piercing procedures.
The evidence provided to the Committee suggests that body piercing procedures involve health and safety issues which warrant specific regulation. Any such system could also extend to tattooing services.
Although not part of the Committee’s terms of reference, the Committee recommends that consideration be given to developing a comprehensive system that governs both body piercing and tattooing. The committee believes that any such system should include:
requirements for the provision of health information to persons considering body piercing or tattooing;
licensing of service providers;
health and safety standards for procedures and equipment and requirements to ensure appropriate consent if provided.
The Discussion Paper noted that the Act included a large number of procedural provisions. Such provisions create specific procedures to be followed at a hearing, or any exceptions or defences to the other offences created by the Act.
The Committee reasoned that because provisions of this nature were often detailed and addressed matters that would be more appropriate for inclusion in other predominantly procedural Acts (such as the Magistrates’ Court Act 1989) and they should be repealed and re-enacted in other statutes.
Most of the recommendations of this nature made by the Committee in the Discussion Paper were supported by those comments which addressed procedural provisions in the Act. In some cases, however, the Committee received evidence suggesting that procedural provisions should be retained in Summary Offences Act. Sections 9(1A)-(1E) are an example. Those clauses address aspects of the offences included in section 9(1). For example, section 9(1C)(a) provides that particular actions contravene section 9(1) if the defendant commits a certain act such as entering a property after having been warned by an owner or occupier not to do so.
The Discussion Paper recommended that Sections 9(1A)-(1E) be repealed because they addressed issues that were more appropriately left to the Court to determine.[13] The Committee received from a number of submissions which stated that, while these provisions were detailed and procedural in nature, they resolved relatively technical legal questions that could arise in the hearing of offences under section 9(1).
It was submitted that the sections provide guidance to the court and parties, which removes uncertainty and the need for lengthy evidence on whether particular actions, which often arise in trespass cases contravene section 9(1).
This evidence satisfied the Committee that, while sections 9(1A)-(1E) are procedural in character, they assist the determination of matters arising under the Act. Accordingly, the Committee has concluded that the provisions should be retained in the Act.
In preparing this report, the Committee has adopted the approach of producing a table of proposals and recommendations. The Table is divided according to the divisions in the Act, with each provision given separate consideration:
This section of the table reproduces the provisions of the Act as they currently stand.
This section contains the recommendations of the Committee for each provision, in terms of "repeal" or "retain". A recommendation for the repeal or retention of a provision may have been given for a number of reasons. The specific reasoning behind each recommendation is provided for in the next column.
This section contains the reasons for the Committees proposal of either recommending the repeal or retention of a provision. The Committee may have recommended that a provision be repealed for a number of reasons, including: the conduct penalised by the section is such that it no longer warrants criminal penalty, there may be a more appropriate Act that the provision could be housed in, there may be existing provisions in other more appropriate Acts that adequately cover the subject matter, or the procedure provided for in the provision may already be firmly established and entrenched in the common law and there is no need for duplication. In any case, the provision should be repealed from this Act.
On some occasions the Committee has also recommended that a section be redrafted and either retained in this Act, or repealed, and included in a more appropriate Act.
For example, in relation to section 37 (Obtaining goods etc by valueless cheque) the Committee recommends that there is a need to retain a summary offence for less serious cases, but that the provision should be redrafted to reflect advances in technology, to include other personal financial instruments such as credit cards and ATM’s.
Where the Committee recommends the retention of a provision, this will have been done on the basis that it was considered that the conduct provided for warranted criminal penalty, and the provision could not more appropriately be relocated to a more appropriate Act.
This section lists other Acts and provisions that are considered to either already adequately cover the subject matter of a provision in this Act, or have the scope to do so if amended accordingly.
This section contains additional comments by the Committee.
The final report of the inquiry into the Summary Offences Act is the result of the work of many people. On behalf of the Subcommittee I would like to acknowledge the efforts of the Hon. Maree Luckins MLC, who served as Deputy Chair of SARC and a member of the Redundant Legislation Committee and Martin Dixon MLA, who served as a member of SARC and the Redundant Legislation Committee. Both served until their replacement on SARC in October 2001. Mr James McConvill assisted in the preparation of the Discussion Paper. Mr Matthew Groves greatly assisted the Committee in the period after the release of the Discussion Paper in his capacity as consultant. Ms Fiona Lewandowski assisted the Subcommittee as Legal Adviser. Ms Marilyn Baldwin was of assistance in the early stages of the Inquiry. The Office of Court Services of the Department of Justice provided comprehensive statistics relevant to the inquiry.
This Report also includes various statistics from the Magistrates’ Court which reveal how often the various sections of the Act are used and offences prosecuted. These statistics are useful to read in conjunction with the various provisions of the Act. For example, statistics reveal that whilst some provisions of the Act were not invoked at all, the third most used section for charges finalised in the Magistrates’ Court of Victoria was section 13 of the Act relating to public drunkenness. The total number of charges laid under that section that were finalised during the periods 1998/99 and 1999/2000 was 17,475 and 13,822 respectively.[14]
Following the Committees recommendations contained in the table will result in a vastly streamlined and simplified Summary Offences Act. Only provisions that are considered appropriate for retention, and cannot be placed in a more appropriate Act would remain in this Act. The Committee believes recommending the repeal of sections from the Act (based on the various reasons as outlined above) will create a more consistent body of law that is relevant and accessible in modern Victoria, and reflective of its citizens expectations.
The Committee hopes that its recommendations will provide useful suggestions to improve the operation of the Summary Offences Act and assist the activities of courts and government agencies involved in the enforcement of the Act. All Victorians will benefit from such improvements to the operation of the law.
The Scrutiny of Acts and Regulations Committee is a joint investigatory Committee of the Parliament of Victoria with members drawn from both houses and from the Government and Opposition. The role of SARC is primarily to scrutinise bills and regulations and to review redundant, unclear or ambiguous legislation. SARC also examines matters specifically referred to it by reference from Parliament or by the Governor-in-Council.
While all members of SARC are involved in the scrutiny of bills, other SARC functions are carried out by subcommittees consisting of various members of the Full Committee. All Parliamentary Committees have power to appoint subcommittees of not less than four members. As such, SARC has appointed a subcommittee of five members to review redundant, unclear and ambiguous legislation – the Redundant Legislation Subcommittee, were responsible for this inquiry.
The specific terms of reference for this inquiry are as follows:
Mr BATCHELOR (Minister for Transport) - On behalf of the Minister for Health, I move:
That under the powers found in section 4F of the Parliamentary Committees Act 1968, the following matters are referred to the following joint investigatory committees:
To the Scrutiny of Acts and Regulations Committee - for inquiry, consideration and report by 31 December 2000 [*] on:
the Summary Offences Act 1966, giving recommendations as to:
(i) the content of the Act;
(ii) its relevance;
(iii) whether it contains provisions that are unclear, redundant or ambiguous that require repeal, amendment or revision.
The Committee considered the Victorian Law Reform Commission Discussion Paper No. 26 (1992), which examined the Summary Offences Act 1966 and Vagrancy Act 1966. It also considered the Legal and Constitutional Committee, 45th Report upon Law Relating to Stolen Goods (Livestock), March 1991. Victorian Law Reform Commission, Public Drunkenness, Report No. 25 June 1989 and Report No. 32, May 1990; Drugs and Crime Prevention Committee, Inquiry into Public Drunkenness – Final Report June 2001.
Crimes Act 1958, ss. 72-74, 81(1).
For example, see the Legal and Constitutional Committee, 45th Report upon Law Relating to Stolen Goods (Livestock), March 1991, which reported that section 28 (relating to recovery of possession of stolen cattle) "has not been utilised for a very long time".
Scrutiny of Acts and Regulations Committee, Inquiry into the Summary Offences Act 1966 – Discussion Paper, May 2001, p.16.
Inquiry into the Summary Offences Act, Minutes of Evidence, 17 July 2001, Magistrate Crowe, p.56.
Ibid, Roy Punshon SC, p.70.
Scrutiny of Acts and Regulations Committee, Inquiry into the Summary Offences Act 1966 – Discussion Paper, May 2001, p.45.
Scrutiny of Acts and Regulations Committee, Inquiry into the Summary Offences Act 1966 – Discussion Paper, May 2001, p.25.
Drugs and Crime Prevention Committee, Inquiry into Public Drunkenness – Final Report, June 2001.
Ibid, p.379.
Inquiry into the Summary Offences Act, Minutes of Evidence, 17 July 2001, Magistrate Smith, p.51.
Ibid, Roy Punshon SC, p.71.
[13]
Scrutiny of Acts and Regulations Committee, Inquiry into the Summary Offences Act 1966 – Discussion Paper, May 2001, p.17.
See Appendix 1 – Offences Finalised under the Summary Offences Act 1966, (for cases completed July 1997 to June 2000).
The reporting date for this Inquiry was extended to 30 November 2001.
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