Sheriff Act 1900 Review
In NSW the Crimes Act includes certain offences, such as “possessing explosives with intent to injure Crimes Act 1900 (NSW) section 55” or “trespassing with or dangerous use of firearm or spear gun Crimes Act 1900 (NSW) section 93H”, which may cover many of the cases where undesirable objects may be bought into court. However, it is not certain that all cases would be covered which may necessitate a specific offence of bringing weapons, explosives and firearms into court without lawful excuse.
A similar provision is contained in the NSW Passenger Transport Act in relation to failing to give, or giving false information to an authorised officer Passenger Transport Act 1990 (NSW) section 55. In that case the offence is punishable by a maximum of five penalty units.
Under the Parliamentary Precincts Act a person who is lawfully directed to leave the precincts must not fail to leave or attempt to re-enter during the time the direction is in force. The offence attracts a maximum penalty of 10 penalty units.
220.127.116.11 Damaging or stealing court property
18.104.22.168 Assaulting, threatening, intimidating or harassing court users
In the case of other court users who may not be directly involved in the process, or in cases where the harassment is not designed to influence proceedings, more general criminal offences need to be relied upon.
It may be argued that the inclusion of a specific offence may make it easier for officers to explain to a person the consequences should they engage in certain behaviour. On the other hand it may be seen as further duplication of offences which is undesirable.
22.214.171.124 Failure to comply with a reasonable direction
The advantage of this approach is that it gives Sheriff’s officers a degree of flexibility in responding to unforeseen or novel circumstances. On the other hand this flexibility may also be considered to be oppressive in that it makes the law arbitrary or capricious. It is foreseeable that such a law could be used to harass a person such as a homeless person, not because, of what they are actually doing, but because of who they are. In this regard, what one person may view as a discretionary application of the law may be considered by another to be discriminatory.
It may be possible to balance these two positions by limiting the circumstances in which an officer is permitted to give directions. For example, the legislation could list the types of activity which can found such a direction, possibly in regulations made under the Act.
A further safeguard may be to include a requirement that the officer explain the basis for the direction and to explain the consequences of the person failing to comply.
It may be appropriate to provide for several different procedures, including the power for Sheriff’s officers to issue penalty notices. Penalty notices are currently used by a number of bodies in NSW for less serious offences, for example in relation to offences under the Local Government Act Local Government Act 1993 (NSW) section 679 and the Passenger Transport Act Passenger Transport Act 1990 (NSW) section 59.
Penalty notices offer the advantage of allowing people, who accept that they are guilty of an offence, to pay a set fine without the necessity of attending a court.