Last year, NSW Attorney-General Gabrielle Upton foreshadowed new laws to make it a criminal offence to engage in ‘disrespectful behaviour’ inside the courtroom.
The proposal was in response to a number of high-profile cases where defendants refused to stand for judges in court. During his trial, Milad bin Ahmad-Shah al-Ahmadza, accused of shooting a man outside a sex club in 2013, refused to stand for four judges over an 18-month period. His belief was that he is “not at the behest of any authority other than Islam”.
Many were incensed by Mr al-Ahmadza’s conduct, and surprised that it does not constitute contempt of court – an offence which generally requires interference with the administration of justice, or an undermining of the performance of the court.
At the time, Ms Upton announced:
“The NSW government is making sure that deliberate behaviour, which is disrespectful, like failing to stand or disrupting the court, is met with a proper penalty”.
“We have already started consultation on draft laws that reflect our community’s expectation that any person who comes before a court should show respect for the judge and the proceedings before the court.”
The New Law
The Courts Legislation Amendment (Disrespectful Behaviour) Bill 2016 passed both houses of NSW Parliament and came into effect on September 1.
It provides that an accused person or party to proceedings before a court, who has been called to give evidence, is liable to a maximum penalty of 14-days imprisonment and/or $1,100 fine if he or she engages in behaviour that is disrespectful to the court or the presiding judge, ‘according to established court practice and convention’.
The section does not apply to lawyers.
Proceedings for the offence must be brought within 12 months of the alleged behaviour, may be brought by anyone who is ‘authorised, in writing, by the Secretary of the Department of Justice’ and a judge may refer the conduct to the Attorney-General for potential prosecution.
The law further states that the court ‘transcript or official audio or video recording of the proceedings is admissible’ in any such prosecution, and that the disrespected judge cannot be required to attend court to give evidence.
A person cannot be prosecuted for both contempt of court and disrespectful behaviour over the same conduct.
The Bill is now embodied in section 131 of the Supreme Court Act 1970, section 200A of the District Court Act 1973, section 24A of the Local Court Act 2007 and section 103A of the Coroners Act 2009.
What is Disrespectful Behaviour?
The new law does not define ‘disrespectful behaviour’, but the Bill’s second reading speech suggests it relates to failing to stand when required to do so, interrupting court proceedings (which may also constitute contempt of court) and may extend to a number of other ‘no no’s’ including not facing the magistrate or judge when directed to do so, or even potentially failing to bow when entering or leaving the courtroom, eating or drinking inside court, reading newspapers or other conduct which is viewed as disrespectful.
The way in which the law will be applied is yet to be seen.