A new Shire law coming our way
Readers of YDCM’s November issue may have seen on page 12 a Shire of York public notice regarding a new local law, to be called the Local Government Property Amendment Local Law 2018.
The proclaimed intention of the law is ‘to
restrict and prohibit’—and of course, punish—‘certain activities on local
government property’.
The notice doesn’t say what activities the
law will restrict and prohibit, only that it will ‘create offences for inappropriate
behaviour’.
‘Inappropriate behaviour’ might refer to a
multitude of aberrant acts, from thumbing your nose at the shire president, to
spraying rude words on walls, or to even more serious forms of misconduct like
asking pointed questions about matters that the Shire wants kept hidden from
public view.
Note the predictable use of ‘inappropriate’, a weasel word best
avoided if you want to be taken seriously by people who can think for
themselves.
The word conveys nothing apart from finger-wagging
disapproval shored up by the risky supposition that everybody shares the
attitudes and prejudices of the person using it.
Forbidden activities
As every York ratepayer knows, the local
law as it currently stands enables the Shire to prohibit a wide range of
activities on shire property.
Forbidden activities include smoking,
riding a bicycle, golf, archery, discharging a firearm, playing a ball game, and those ‘involving a projectile’—presumably, such as mounting a
siege engine like a trebuchet, or firing off a nuclear warhead without first
obtaining written permission from the CEO.
So one might expect the proposed law, in
the same spirit, to declare exactly what new activities it will restrict or
prohibit, and precisely what penalties it intends to impose on those who carry
them out.
The Shire’s notice invites us to comment by
way of submission on the proposed law. You can inspect the law during office hours at the
administration centre aka the Kremlin in Joaquina Street or (so the notice
says) on the Shire’s website. The
closing date for submissions is 18 January 2019.
Don’t try searching ‘local laws’ on the
website, as the notice directs. That might get you nowhere, as it did me,
because on Friday, when I ran the search, the information hadn’t been posted.
Following a hint from a friend, I looked up resolution 041018 and item SY138-1018 in the minutes of the October council meeting.
Perhaps I’ve missed something, but there
seemed to be no precise indication in the minutes of the activities the
proposed law is designed to prohibit.
Perhaps the Shire is relying on us, the
public, to nominate activities we think shouldn’t be tolerated on shire
property and the penalties those activities should attract.
With some diffidence, I would like to
nominate concealment, deception, obfuscation, creating unnecessary staff
positions and forking out unconscionably large amounts of public money to
expensive lawyers and consultants.
As for penalties, I’ll let readers decide.
Charges dropped
A couple of my more cynical friends have
suggested—wrongly, in my opinion— that the Shire’s proposed new law is a
response to events in Perth’s Central Law Courts on Friday 26 October last.
That was when a former senior executive of
the Shire walked away scot-free from eight criminal
charges arising from alleged misconduct on Shire property, namely the administration
centre in Joaquina Street.
Seven of those charges, taken together, alleged
that the gentleman in question had committed indecent acts in public by exposing
his alter ego at various times over a period of months to three of his female
colleagues, who subsequently complained to the police.
The eighth charge was of common
assault. I’ve no idea what incident
gave rise to that charge, or who was allegedly assaulted.
Public indecency
The offence of public indecency is covered
by section 203 of the Criminal Code. This says that anyone who acts indecently
in a public place, or in sight of someone who is in a public place, or in a
police station or lock-up, is guilty of a crime and liable on summary
conviction to 9 months in the slammer and a fine of $9000.
It’s a defence to a charge under this
section that the indecent act complained of was carried out ‘for the public
benefit’. I’m still cudgelling my brains over that
one—the Code doesn’t seem to define ‘public benefit’— but anyway I doubt the
defence would succeed in the case of a common or garden flasher.
Nor does the section clarify what is meant
by ‘indecent act’ (or simply ‘indecent’).
It’s probably fair to say
that for most people, the label ‘indecent act’ signifies what used to be called
‘lewdness’, i.e. impropriety of a sexual or excretory nature.
But at common law the word ‘indecent’ has
been held to apply to a broader range of objectionable behaviours, including
grave robbing, mistreating corpses and brawling in church.
However, I’m sure we can all agree that
‘flashing’ is an indecent and reprehensible act, especially if perpetrated by a senior official in the
workplace.
The crime of common assault is covered by
section 313 of the Code. The
prescribed penalty is 18 months and a fine of $18,000 (doubled if the crime
occurs in ‘circumstances of aggravation’, for example taking a swipe at a
person aged 65 or over).
Innocence
At this point, I remind readers that the alleged perpetrator is fully entitled to the presumption of innocence.
He hasn’t been convicted of the charges
brought against him.
By the same token, the women who complained
are in my opinion no less entitled to the presumption of honest report.
We all assumed the alleged perpetrator would either plead not
guilty and stand trial or plead guilty and take his lumps. That’s what usually happens in criminal
cases.
Instead, the prosecution dropped all
charges and the gentleman left court with an unblemished character to pursue his lucrative career in local government.
‘Public place’
So, why were the charges dropped?
From what I’ve been told recently, it seems
the answer turns on the legal definition of ‘a public place’.
Section 1 of the Code defines ‘a public
place’ primarily as ‘a place to which the public, or any section of the public,
has or is permitted to have access, whether on payment or otherwise’.
I think it would seem to most people that
the location where the offences allegedly took place, the Shire of York
administration centre, is according to that definition a public place.
It’s where members of the public go to pay
their rates, license pet dogs and cats, pay parking fines, plead for mercy with
Shire officials and borrow books from the public library.
It might be argued that while the reception
area and the library are certainly public places, the offices where Shire staff
work are not.
That would be true if the public is
expressly forbidden by law to access them, as may indeed be the case.
My impression, though, is that members of
the public are from time to time permitted to enter office areas in the
administration centre.
If so, wouldn’t that make the centre,
including those areas, a public place as defined in the Criminal Code?
An interesting question that, not being a
lawyer, I won’t attempt to answer, especially as my tame legal eagle says I’m
wrong.
Getting off
It’s my understanding that the police
prosecutor, on legal advice, dropped the ‘flashing’ charges because the place
where the offences were alleged to have occurred is not considered to be a
public place within the meaning of the Code.
I think that’s the kind of thing usually
referred to as ‘getting off on a technicality’—or would be, if the alleged perpetrator did in fact
misbehave as alleged towards the female complainants, a proposition that hasn’t
been tested in a criminal court and most likely never will be.
The prosecution’s decision to drop the
charges seems to have come at a rather odd time, many months after they were
laid. Are we to believe that
nobody in the prosecutor’s office had spotted the problem until then?
To my mind, that decision, justified or not, was not a good outcome
either for the alleged perpetrator—who has been denied his chance to contest the charges and clear his name—or for the
witnesses, who waited for the best part of a year to give their evidence only
to see that opportunity snatched away.
I’m surprised that the common assault
charge was dropped along with the others.
So far as I know, if you assault someone it makes no difference if you
do it in a public or private place.
Either way, you’ll still be for the chop.
Now, back to the Shire’s proposed new
legislation. It strikes me
that one activity on Shire premises that the local law might in future
restrict, prohibit and punish is the one discussed above.
I haven’t thought this through, and I’m not
sure what punishment would fit the crime (no crude comments, please) but I
think my suggestion merits serious consideration.
An apology
Finally, I want to apologise to the
complainants for rudely making light of their allegations when the matter first
came to light. That wasn’t this
blog’s finest hour. Ladies, I’m truly
sorry.
POSTSCRIPT: A couple of people have pointed out to me that the police could have laid charges under section 204 of the Criminal Code.
That section makes it a crime to do an indecent act in any place, public or private, 'with intent to insult or offend'.
Penalty on summary conviction is 12 months in the slammer and a fine of $12,000. If the matter goes to a higher court, the penalty is 3 years but no fine.
Obviously I don't know why the police didn't lay charges under that section, but it may be that proving such an intent might be rather difficult.
No doubt flashers flash from a variety of motives, for example in hope that viewers will be impressed enough to respond agreeably to what they see. In other words, the intention may not be to insult or offend but to inspire interest or admiration. (A motive reflected in the old British police euphemism, 'hawking his fruit'.)
Of course that doesn't make flashing any less offensive and insulting to women who experience it, but section 204 gives the offender scope to deny that he had the intention to insult and offend. The prosecution would have to prove beyond reasonable doubt that he did have that intention, which might not be easy to do.
So accusing the cops of stuffing up might be a bit unfair. It's possible I suppose to construe intent on the basis of circumstances (and previous such misconduct, if any) but I'm no expert on such matters so I shall forthwith shut up.
POSTSCRIPT: A couple of people have pointed out to me that the police could have laid charges under section 204 of the Criminal Code.
That section makes it a crime to do an indecent act in any place, public or private, 'with intent to insult or offend'.
Penalty on summary conviction is 12 months in the slammer and a fine of $12,000. If the matter goes to a higher court, the penalty is 3 years but no fine.
Obviously I don't know why the police didn't lay charges under that section, but it may be that proving such an intent might be rather difficult.
No doubt flashers flash from a variety of motives, for example in hope that viewers will be impressed enough to respond agreeably to what they see. In other words, the intention may not be to insult or offend but to inspire interest or admiration. (A motive reflected in the old British police euphemism, 'hawking his fruit'.)
Of course that doesn't make flashing any less offensive and insulting to women who experience it, but section 204 gives the offender scope to deny that he had the intention to insult and offend. The prosecution would have to prove beyond reasonable doubt that he did have that intention, which might not be easy to do.
So accusing the cops of stuffing up might be a bit unfair. It's possible I suppose to construe intent on the basis of circumstances (and previous such misconduct, if any) but I'm no expert on such matters so I shall forthwith shut up.