Intro
In recent years, a small number of local governments in Western Australia have experienced disruptive behaviour in ordinary and committee meetings by one or more members of the public. In the majority of cases the behaviour was of short duration and while members of council and staff were made uncomfortable business could continue. Unfortunately, in a few instances, this behaviour became so bad that normal business could not proceed until the offending parties left, or were removed from, the chamber. This guideline provides advice on the options available to councils when members of the public exhibit ongoing disruptive behaviour in meetings.
The Local Government Act 1995 (the Act) promotes participation of the community in council meetings through public question time and observation of the decision-making process which should be conducted in an open and transparent way. It is important that council meetings be conducted in an atmosphere of inclusiveness and openness to foster productive relationships with the community. Public question time plays an important part in achieving these objectives by providing an opportunity for the public to seek council responses on issues that are of interest to them. It is at this time in the agenda that most difficulties are likely to arise. This guideline should be read in conjunction with Guideline No. 3 Managing Public Question Time.
To a large extent, the general conduct of a council meeting, particularly during public question time, depends upon mutual respect and good faith between elected members and the public. There can be instances at a council meeting where a member of the public fails to show respect or consideration for the presiding member, elected members, council staff and other members of the public. Such disruptive behaviour makes the conduct of council business more difficult and stressful, reducing the efficiency and effectiveness of council meetings. Disruptive behaviour also denies other members of the public the opportunity to participate in and observe council proceedings.
The following are examples of inappropriate behaviour:
Instances where a member of the public behaves inappropriately during a council meeting and refuses to accede to the directions of the presiding person can be stressful for councillors, council staff and other people.
Most of the interjections whether from an individual or a group will be of limited duration as they will relate to one item in which they have a particular interest. In such cases the advice is for the council, and in particular, the presiding person, to behave with dignity. This can be done by effectively ignoring the interjection and moving on with the business of the day. If the interjections continue it may be appropriate to ask the offending parties to cease. In many cases other members of the public gallery will support the presiding person and ask the disruptive person(s) to quieten down.
If the disruptive behaviour does not cease then a very useful tool is for an adjournment for a specific time period to be called. In such cases the Chief Executive Officer (CEO) should discuss the situation with the offending parties during the adjournment and ask them to behave appropriately in a place of government. The mayor or president and other elected members should retain the dignity of their office by not interacting in any way with the interjectors during the adjournment. It would be appropriate when resuming for the presiding person to issue a warning that further continuation of the disruptive behaviour will lead to stronger action.
If after resuming the meeting the disruptive behaviour continues it would be appropriate for the presiding person to again adjourn the meeting and instruct the CEO to ask the offending person or persons to leave the premises. The CEO must take this action as while the presiding person is in charge of the meeting, it is the CEO who, through section 5.41(d) of the Act, has control or management of the local government's buildings, including the council chamber and meeting rooms and is the person in authority in relation to Section 70A of the Criminal Code.
Once the meeting has been adjourned the CEO would advise the person or persons that they are requested to leave the premises and that if they remain they will be committing the offence of trespass under Section 70A of the Criminal Code and could be prosecuted. The request to leave should be in the nature of a firm demand indicating that the request is not open for debate. Should the person or persons refuse to leave the CEO should advise them that the Police will be called to apprehend them and the local government will instigate legal proceedings.
Depending on the nature and intensity of the disruptive behaviour the presiding person may decide that more warnings will be issued before asking the CEO to request the person or persons to leave or the Police being called.
If the person or persons refuse to leave, under Section 49 of the Police Act 1892 the CEO, or a person authorised by him or her, may apprehend and detain any person found committing an offence punishable in a summary manner until the person can be delivered into the custody of the Police.
It is advisable that on all occasions the assistance of the Police be the preferred action. The power to apprehend and detain is not a power to eject a person from a meeting. Apprehending and detaining a person would be impractical in circumstances where the Police cannot attend to arrest the person for some considerable time.
Local governments considering using the power of apprehension and detention should seek legal advice in advance, particularly in relation to the handling of a person being apprehended. The potential for a person being liable to prosecution for an unlawful assault when using physical force to apprehend a person cannot be excluded.
A Police Officer has the power under section 50(1) of the Police Act 1892 to order a person to leave a public place if he or she suspects that the person "is hindering, obstructing or preventing any lawful activity that is being, or is about to be, carried out by another person".
Prosecution for a breach of section 70A of the Criminal Code may be commenced by an employee of a local government who is acting in the course of his or her duties, a person authorised in writing by the local government or a Police Officer. A prosecution is initiated by a prosecution notice under section 24 of the Criminal Procedure Act 2004.
Section 70A of the Criminal Code authorises the CEO to request a person to leave not only the building where the meeting is taking place, but also the local government property. This would address the situation where a person leaves the meeting but waits outside to challenge the elected members or staff after the meeting.
Police and property owners may apprehend offenders; police may search vehicles and people for stolen property.
Any person found committing any offence punishable in a summary manner may be taken into custody without a warrant by any officer or constable of the Police Force, or may be apprehended by the owner of the property on or with respect to which the offence shall be committed, or by his servant, or any person authorised by him, and may be detained until he can be delivered into the custody of a constable, to be dealt with according to law; and every police officer or constable may also stop, search, and detain any cart, carriage, or vehicle, in or upon which there shall be reason to suspect that anything stolen or unlawfully obtained may be found, and also any person who may be reasonably suspected of having or conveying in any manner anything stolen or unlawfully obtained; and any person to whom any property or liquor shall be offered to be sold, pawned, or delivered (if he shall have reasonable cause to suspect that any offence has been committed with respect to such property or liquor, or that the same, or any part thereof, has been stolen, or otherwise unlawfully obtained, or is intended to be used for an unlawful purpose), may apprehend and detain the person offering any such property or liquor as aforesaid, and as soon as may be deliver him into the custody of a constable, together with such property or liquor, to be dealt with according to law; and every person taken into custody without warrant for any offence against the provisions of this Act, or for any offence punishable in a summary manner, shall be detained in custody until he can be dealt with according to law.
(1) A police officer may order a person who is in a public place, or in a vehicle, vessel or aircraft used for public transport, to leave it, or a part of it specified by the officer, if the officer reasonably suspects that the person –
(2) A police officer giving an order under subsection (1) may in addition do either or both of the following:
(3)For the purpose of giving an order under this section to a person whose personal details (as defined in section 16 of the Criminal Investigation (Identifying People) Act 2002) are unknown to the officer, a police officer may request the person to give the officer any or all of the person's personal details.
(4) If a request is made under subsection (3), section 16 of the Criminal Investigation (Identifying People) Act 2002 applies to and in relation to the request in the same way as it applies to a request made under subsection (2) of that section.
(5) Any order given under this section to a person must:
(6) A person who, without reasonable excuse, does not comply with an order given by a police officer under this section commits an offence. Penalty: imprisonment for 12 months and a fine of $12,000.
(7) This section does not prevent a police officer charging a person with an offence without having exercised a power in this section.
70A. Trespass
(1) In this section – 'person in authority', in relation to a place, means:
(2) A person who, without lawful excuse, trespasses on a place is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12,000.
(3) In a prosecution for an offence under subsection (2), the accused has the onus of proving that the accused had a lawful excuse. [Section 70A inserted by No. 70 of 2004 s. 6.]