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This page was last updated 23 August 2010. 8 On the Street
Public order or "street" offences and summary police powers are primarily found under the Summary Offences Act 1988. These offences classically apply to public places, which are defined generally as follows:
that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, but does not include a school. However, the position is more complicated than that. Three things should be noted. First, some offences may be committed in, "or within view or hearing of" a public place generally or a specific place such as a school.1 These include the offensive conduct and language offences.2 Second, for the purposes of the provisions regarding public assembly under the Summary Offences Act 1988, a different definition of public place is used. Under this Part of the Act, public place means a public road, public reserve or other place which the public are entitled to use.3 Third, and somewhat counter-intuitively, public place may include private property. As was stated in In The Appeal of Camp "it has long been held that a public place is one where the public go, no matter whether they have a right to go or not".4 Likewise, the offence of violent disorder specifically provides that the offence can be committed in private as well as public spaces.5 Following on from the Cronulla riots in late 2005, police have been given powers to "lock-down" public places in order to prevent or control public disorders. These powers are discussed in more detail in Chapter 10. 8.1 Loitering or “Moving People On”Police cannot give directions to move people on in public places where an apparently genuine demonstration or protest, a procession, or an organised assembly is occurring.6 Outside of these exceptions, police do have the power to "move on" people in public places if they reasonably believe that the conduct or mere presence of a person or group:7
Such directions must be reasonable in the circumstances for the purpose of reducing the threat posed by the conduct.9Complicated provisions govern the exercise of the power by the police (namely, the need to give their name and place of duty, the reason for the direction,10 and a warning that you are obliged to comply and that failure to comply constitutes an offence11). It is an offence not to comply with a direction by persisting to engage in the relevant conduct.12 Police have generally issued penalty infringement notices for this offence.13 8.2 Search and SeizurePolice may stop, search and detain you and items in your possession if they hold a reasonable suspicion14 that you possess, or that there is in your car or vessel, in a public place, a dangerous article (such as a gun or explosive) used, or intended to be used, in certain serious offences.15 A more general frisk search power exists where the police reasonably suspect you have a knife, dangerous implement or a laser pointer in a public place.16 Provisions apply regarding the need for police to give their name and place of duty, the reason for the request,17 and a warning.18 8.3 Sniffer DogsIf you are in a public place, police can generally only use drug detection or sniffer dogs to search you if they have a warrant.19 However, they do not need a warrant to use such dogs where you are at or on, entering or leaving hotels, clubs, public transport or a public place being used for a "sporting event, concert or other artistic performance, dance party, parade or other entertainment".20 Police are required to keep the dog under control and to take all reasonable precautions to stop the dog touching you.21 8.4 Unlawful AssemblyPeople generally have the right to peacefully assemble in any public place, so long as the safety or the rights and freedoms of others are not compromised. Should the latter occur, you may be guilty of unlawful assembly, which is an offence under both NSW legislation and the common law. Notwithstanding your rights, the Summary Offences Act 1988 allows people to choose to use a process to "authorise" their assembly, providing an additional degree of protection against the levying of obstruction-related offences. It is important to note that a simpler definition of public place is used in relation to public assemblies under the Summary Offences Act 1988, as compared to the Act generally. Under Part 4 of the Act, public place means a public road, public reserve or other place which the public are entitled to use.22 8.4.1 “Authorised” assembliesThe Summary Offences Act 1988 regulates public assemblies and provides a way of "authorising" them.23 An assembly can be authorised by notifying the police (formally, the Commissioner) of your intention to hold a public assembly under the Summary Offences Act 1988. Notification can be made to any member of the police force (such as the local Traffic Services Sergeant).24 The notification has to be in writing, has to set out the purpose and details of the assembly and must be in the form set out in Appendix A. You should give it to the police at least seven days before the proposed public assembly, otherwise it must be authorised by the District or Supreme Court.25 Providing the assembly is held "substantially in accordance with" the details given, you will not be guilty of any offence such as obstruction or unlawful assembly.26 However, failure to get authorisation does not of itself mean that the assembly will be unlawful. The elements of the statutory and common law offence are technical and require certain numbers of participants together with certain types of behaviour (see 8.4.2 below). It is important to note that police do not have the power to ban protests outright.27 Rather, if the police wish to make an assembly unlawful upfront, they need to go to the District or Supreme Court and obtain a prohibition order (after giving the organisers a chance to respond). If you act contrary to such a prohibition order, you will be in contempt of Court, which can be extremely serious.28 8.4.2 Unlawful assembly under the Crimes ActUnder the Crimes Act, an unlawful assembly is "any assembly of five or more persons whose common object is by means of intimidation or injury to compel any person to do what he is not legally bound to do or to abstain from doing what he is legally entitled to do."29 It is an offence in NSW to knowingly join or continue in an unlawful assembly, or to carry arms in such an assembly.30 The maximum penalty is a $550 fine or six months imprisonment, or both (or double this for carrying arms).31 8.4.3 Unlawful assembly at common lawEven if the police cannot charge you under the Crimes Act they may be able to charge you with unlawful assembly as a common law offence.32 An unlawful assembly at common law is: "... an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or conduct themselves when assembled as to cause persons in the neighbourhood of such assembly to fear on reasonable grounds that the persons so assembled will disturb the peace tumultuously or will by such assembly needlessly and without any reasonable occasion provoke other persons to disturb the peace tumultuously."33 8.5 ObstructionUnder the Summary Offences Act it is an offence to "wilfully prevent, in any manner, the free passage of a person, vehicle or vessel in a public place."34 All participants in a rally may be considered to be obstructing the free passage of the public, even if they individually are not so doing.35 Whether or not there has been an obstruction will often be arguable on the facts. For example, does a protest that blocks a footpath really constitute an obstruction if pedestrians can go around? Would protestors linking arms such that people are forced onto the road constitute an obstruction? 8.6 Offensive Conduct and LanguageUnder the Summary Offences Act it is an offence to engage in offensive conduct or to use offensive language. These two offences were among the "top 20" offences sentenced in the Local Court in 2007, with over 2,200 for offensive conduct and just over 1,500 for offensive language.36 Fines of around $100 to $500 were typical for offensive conduct and around $100 to $300 for offensive language.37 'Offensive conduct' consists of acting "in an offensive manner in or near, or within view or hearing of, a public place or a school" and carries a maximum penalty of $660 or three months gaol.38 Even if there is no proof that there was anyone in the public place to be offended the offence may still occur.39 Merely using offensive language is not sufficient to sustain a conviction for offensive conduct,40 although there may be difficulties in drawing a line between the two.41 It is, however, a separate offence to "use offensive language in or near, or within hearing of, a public place or school" with the maximum penalty being $660.42 Again, it is not necessary that anyone actually hear the offensive language for a conviction to occur. Whether offensive language has been used will usually depend on the factual circumstances of the case - sometimes what would ordinarily be obscene language may be reasonable.43 It would appear for both these offences that you need to intend to behave offensively (consistent with the principles of criminal responsibility), although the issue has not been authoritatively determined.44 It is a defence to a charge of offensive conduct or language that the accused has a reasonable excuse for the conduct.45 For example, if the behaviour is almost a "reflex action" to "a sudden outrageous outburst of provocation, this could be a reasonable excuse."46 8.7 Damage to PropertyIt is a summary offence to damage or deface fountains, shrines, monuments, statues and war memorials under the Summary Offences Act. 47The possible penalties are quite severe, ranging from $440 for damaging fountains48 up to $4400 (for wilfully damaging war memorials and the like).49 You may also be liable to pay restoration costs up to $2200,50 with the Court even being able to order you to personally repair the damage where the offence involves war memorials, shrines, monuments and statues.51 Under the Graffiti Control Act 2008 a person who intentionally affixes placard or paper or marks any premises with paint, chalk or any other material faces a possible penalty of up to $440.52 The Local Government Act 1993 contains a number of offences of damage to property, such as breaking glass in a public place53 or the wilful destruction of notices or signs.54 8.8 Engaging in Dangerous ActivitiesIt is an offence to climb on or jump from buildings or bridges, towers and so on so as to risk the safety of others, including by abseiling, jumping or parachuting.55 It is a defence to do so with reasonable excuse.56 The maximum penalty is $1100 or 3 months gaol, or both.57
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