Normal public order offences include general, offensive conduct, willful and obscene exposure, public assemblies, trespass, property damage, prostitution
Drunkenness offences NSW
Intoxicated persons who cause or risk harm to themselves, others, or property in a public place constitute drunkenness offences. Several sections of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and the Summary Offences Act 1988 (NSW) cover these offences.
Drunkenness offences may be punished:
- Failure to comply with a direction to leave a public place if intoxicated, disorderly, or likely to cause harm is punishable by a $220 fine.
- If you continue to be intoxicated and disorderly after being directed to leave a public area, you will be fined $1,650
- An individual who offensively conducts himself in or near a public place or a school while intoxicated is subject to a $660 fine or 3 months in prison
- Intoxicated persons who use offensive language in or near a public place or a school may be fined $660 or imprisoned for three months.
- $440 fine for obstructing traffic in a public place while intoxicated
If you are found intoxicated in a public place, the police may detain you as follows:
- You will likely injure yourself or someone else if you behave in a disorderly manner,
- Your behaviour is likely to cause damage to property, or
- As a result of your intoxication, you require protection
When you are taken into custody, the police can either take you to a responsible person who is prepared to care for you, such as a family member, or to a police station that is authorised to detain you. Police can detain you for up to eight hours while you are intoxicated. During your detention, the police must inform you of your rights and obligations.
There are several possible defences to drunkenness offences, including:
- There was no alcohol in your system
- You were not in a public area
- It was reasonable for you to act in the manner in which you did
- As a result of duress or necessity, you acted
- You were acting in self-defence as a result of self-defence or defence of another.
- You were suffering from a mental illness or impairment.
Possession of Knives offences
There are two types of possession of knife offences: those that involve having or using a knife in a public place or a school without a reasonable excuse.
If you are caught with a knife in your possession, you will be penalized as follows:
- $4,400 fine or 4 years imprisonment for having custody of a knife in a public place or a school
- $11,000 fine or 4 years imprisonment for wielding a knife in a public place or a school in a way that is likely to cause fear.
It is the prosecution’s responsibility to establish, beyond a reasonable doubt, the following:
- The person had or used a knife
- The knife was in a public place or a school
- The person did not have a reasonable excuse for having or using the knife
The term ‘knife’ includes a knife blade and a razor blade. The term ‘public place’ refers to any place that is open to members of the public, whether or not payment is required.
The following are some possible reasonable excuses for owning or using a knife:
- A person’s lawful occupation, education, or training
- The preparation or consumption of food or drink
- Participation in a lawful sport, recreation, or entertainment activity
- Knives exhibited for retail or other trade purposes
- An exhibition organized by knife collectors
- Wearing a uniform in an official capacity
- In the interest of religion
- Travel to or from these activities or travel incidental to them
Having or using a knife for self-defence or the protection of another is not a reasonable excuse
The following are some possible defences to a charge of possessing knives:
- The person did not have or use a knife
- The person had a reasonable excuse for having or using the knife
- The person was acting under duress or necessity
- Defending oneself or another was the reason for the action.
- A mental illness or impairment was present in the individual.
Offensive Conducts offences
Section 4 of the Summary Offences Act 1988 (NSW) defines offensive conduct offences as those committed in or near a public place or school.
Offences of offensive conduct carry the following penalties:
- An offence involving conduct in a public place or near a school is punishable by a $660 fine or 3 months imprisonment.
- If a person continues to act offensively after being warned by a police officer to stop, a $220 fine will be assessed.
The prosecution must prove the following beyond a reasonable doubt:
- There was offensive conduct on the part of the individual
- The conduct occurred in or near a public place or school or within their view or hearing
- A reasonable explanation did not justify the conduct of the individual
Despite the absence of a definition in the Act, courts have interpreted offensive conduct as conduct that is “calculated to wound the feelings arouse anger or resentment or disgust or outrage in the mind of anyone reasonable”. Examples can include:
- Getting changed in a public place within view of families with children
- Having sex in a public place
- Engaging in a fight involving violence and foul language in a public place
- Urinating or defecating in a public place
- Burning the Australian flag in a public place
Depending on the circumstances and context, a person’s conduct may be offensive in one situation but not in another. If swearing is used in a normal conversation among friends, it may not be offensive, but if it is directed in an abusive manner at another, it may be offensive.
There are several possible defences to an offence charge, including:
- It was not offensive
- There was a reasonable explanation for the conduct of the individual
- It was necessary or under duress for the person to act
- It was in self-defence or defence of another that the person acted
- A mental illness or impairment was present in the individual
Willful Obscene Exposure offences
Any obscene exposure, for example, to attempt to have sex in a public place, will suffice to be charged for a willful obscene exposure. The penalty is a $1000 fine or six months’ imprisonment. But there can be the defence of making a reasonable and honest mistake.
Public assemblies offences
A public assembly is a gathering or procession that takes place in a public place for a common purpose, such as a protest, rally, or march. Public assemblies may be authorised or unauthorised depending on compliance with the legal process under the Summary Offences Act 1988 (NSW).
To have an authorised public assembly, the organiser must:
- Inform the NSW Police Commissioner at least seven days before the assembly date, or less if special circumstances exist.
- The date, time, place, route, purpose, and expected number of participants should be provided.
- The Commissioner must confirm that he or she does not oppose the assembly or obtain a court order authorizing it if the Commissioner opposes it.
Public assemblies authorised by law protect participants from prosecution for obstructing traffic or people and other charges associated with unlawful gatherings.
The term “unauthorised public assembly” refers to a gathering that does not follow the legal process or is prohibited by a court order. People attending an unauthorised public assembly may be charged with offences such as:
- An unlawful assembly is characterised by joining or continuing an assembly of more than five people with a common objective of threatening or injuring someone to do or refrain from doing something for which they are legally entitled or not permitted to do. There is a maximum penalty of 6 months imprisonment and/or a $550 fine for this offence.
- A person may be imprisoned for 12 months and/or a fine of $1,100 for unlawful assembly while armed: joining or continuing in an unlawful assembly while armed.
- Using offensive language in a public place or school carries a maximum fine of $660.
- Offensive conduct: offensively conducting oneself in or near a public place or school. This carries a maximum penalty of $660 fine.
- The offence of obstructing traffic consists of preventing, hindering or obstructing any person, vehicle or vessel in a public space. The maximum fine for this offence is $440.
Property Damage offences
Property damage offences involve intentionally or recklessly destroying or damaging somebody else’s property. Section 195 of the Crimes Act 1900 (NSW) covers these offences.
Property damage penalties are determined by the circumstances of the offence, including:
- Whether the damage or destruction was caused by fire or explosives
- Whether the offender acted in the company of other people
- Whether the offence occurred during a public disorder
Property damage offences are punishable by the following maximum penalties:
- 5 years imprisonment for destroying or damaging property intentionally or recklessly
- 10 years imprisonment for destroying or damaging property by fire or explosives
- 6 years imprisonment for destroying or damaging property in the company of others.
- 11 years imprisonment for destroying or damaging property by fire or explosives in the company of others.
- 7 years imprisonment for destroying or damaging property during a public disorder.
- 12 years imprisonment for destroying or damaging property by fire or explosives during a public disorder.
Prostitution offences
In New South Wales (NSW), prostitution and brothels are legal. However, there are some crimes associated with sex work that you should be aware of.
There are several offences, including:
It is illegal to procure, entice, or lead away a person who is not a prostitute for prostitution. This is punishable by up to seven years in prison.
The crime of causing or inducing a child to engage in an act of child prostitution, or participating as a client in such an act, carries a maximum penalty of 14 years in prison.
A person who lives wholly or in part off the earnings of another person’s sex work is subject to a maximum penalty of $1,100 fine or 12 months in prison.
The practice of soliciting near or within view of a school, church or hospital, or within sight of a building, school, church or hospital is typically prohibited by police orders but may also result in a fine.
