Dumping rubbish- Offences against Public Order

Anyone who puts any rubbish on land without the owner's or occupier's consent or without some other lawful authority, is guilty of an offence and may be fined up to $750. Whether or not a fine is imposed, the court can order an offender to remove the rubbish within a certain time and, if it is not removed, the offender is liable to a fine of up to $125 and may also be ordered to pay compensation to the owner or occupier of the land for the cost of removing it [Summary Offences Act 1953 s.57].

Playing games as to cause damage- Offences against Public Order

A person who plays any game that is likely to injure a person in a public place or that is likely to damage property is guilty of an offence and may be liable to a penalty of a fine of up to $250 [Summary Offences Act 1953 s.53].
Playing a game on an oval, court or other area set aside for that purpose is not an offence, but playing a game in, say, Rundle Mall invites prosecution. However, the prosecution can only succeed if someone is injured or property is damaged or there is a likelihood or danger that one of those things would happen.

Throwing stones- Offences against public order

A person who discharge a firearm or throws a stone or other missile, without reasonable cause, so as to be likely to injure, annoy or frighten any person or damage any property is guilty of an offence and may be fined up to $10,000 or goaled for up to two years [Summary Offences Act 1953 s.51]. Although the Section refers to discharging firearms, it is generally used for the prosecution of people who throw stones or other missiles without reasonable cause.

Emitting excessive noise from a vehicle- Offences against public Order

It is an offence for drivers and occupants to cause or allow excessive noise to be emitted from a vehicle by amplified sound equipment or other devices, after being issued with a written warning by police: see COMMON DRIVING OFFENCES: Emitting excessive noise from a vehicle

Offences on public transport- Offences against Public Order

A person who does not leave a public passenger vehicle as quickly as possible after being asked to do so is guilty of an offence carrying a penalty of a fine of up to $750 [Summary Offences Act 1953 s.58A(1)]. The driver or conductor of the vehicle or a police officer can ask the person to leave the vehicle if:

·         before or at the time of entering the vehicle, the person was told by the driver or conductor that it was fully loaded with passengers

·         the person is drunk and is annoying, or is likely to annoy, a passenger

·         the person or the person's clothing soils or damages, or is likely to soil or damage, a part of the vehicle or the clothing or belongings of a passenger

·         the person acts in a noisy, violent or abusive manner, uses obscene or indecent language or drinks intoxicating liquor in the vehicle after having been asked to stop.

The driver, conductor or a police officer can remove the person from the vehicle and ask for the person's name and address and if these are not given, the person commits a further offence that has maximum fine of $750. Proof of the name and address can also be demanded and failure to provide this evidence or giving false evidence is a further offence punishable by a fine of up to $750.

Loitering- Offences against Public Order

Police officers may ask a person to stop loitering in a public place (in other words, to leave the place) where they believe on reasonable grounds:

·         that an offence has been, or is about to be, committed by the person or by others in the vicinity (as more usually happens)

·         that a breach of the peace has occurred, is occurring, or is about to occur, in the vicinity of the person or group

·         that there is, or is about to be, an obstruction to pedestrians or traffic caused by the presence of the person or of others in the vicinity

·         that the safety of a person in the vicinity is in danger.

A person who does not obey a police request to stop loitering commits an offence and may be fined up to $1250 or imprisonment up to three months [Summary Offences Act 1953 s.18]

Barring persons from licensed premises or casino- Offences against Public Order

Traditionally the power to bar patrons from licensed premises has been left to the licensee of the premises. Under the Liquor Licensing Act 1997 these powers have been extended to police.  There are effectively two types of ‘barring orders’ – one that can be issued by the Commissioner of Police and another that can be issued by a police officer on the authority of a senior officer. Although the consequence of either order is the same, the basis on which they are issued differs significantly.

Commissioner of Police barring orders

The Commissioner of Police has the power to issue an order barring a person from licensed premises for either an indefinite period of time or a specific time (a ‘barring order’). Similar powers apply under the Casino Act 1997. The ban might be for a specific venue or for licensed premises in a specified area. All that is required is a reasonable ground.

Generally such orders will be issued on the basis of ‘criminal intelligence’ and, if this is the case, then the details of this intelligence will not be disclosed on the order. All that needs be stated on the order is that it would be contrary to the public interest if the person were not barred.

For the purposes of the Act ‘criminal intelligence’ is any information relating to actual or suspected criminal activity (whether in South Australia or elsewhere), the disclosure of which could reasonably be expected to prejudice criminal investigations, enable the discovery of the existence or identity of a confidential source of information or endanger a person’s life or physical safety.

The intention behind this type of barring order is to ensure that the Commissioner of Police has such powers as are necessary to curb outlaw motorcycle gangs and organised crime groups from intimidating licensees and using their premises to commit criminal acts.

Police officer barring orders

Barring orders can also be issued by police officers. These orders act similarly to the Commissioner of Police barring orders but are generally for a shorter period of time and are usually issued as the result of concerns about a person’s welfare or because of disorderly behaviour.

A police officer may bar a person from entering or remaining on licensed premises if they are satisfied that:

·         the welfare of the person or a person living with them is seriously at risk as a result of the consumption of alcohol, OR

·         if a person commits an offence or behaves in an offensive or disorderly manner in licensed premises or an area adjacent to licensed premises, OR

·         any other reasonable ground

Where the ground for issuing the order is that of welfare of the person or a person living with them the order can be for an indefinite or specified period of time.

Where the ground for issuing the order is the commission of an offence, disorderly or offensive behaviour or any other reasonable ground, the order will remain in force:

·         if the person has not previously been barred, for a period not exceeding 3 months

·         if the person has been barred on one previous occasion, for a period not exceeding 6 months

·         if the person has been barred on at least two prior occasions, for an indefinite period or a period specified in the order

Power to remove barred person

An authorised person may require a barred person to leave licensed premises and can prevent them from entering or remove them using reasonable force if necessary. An ‘authorised person’ includes the licensee of the premises, a person responsible for the licensed premises, a police officer or an approved crowd controller.

Offences

It is an offence to enter or remain on licensed premises if barred.

Maximum penalty: $1250 (licensed premises)

Maximum penalty: $2500 (casino)

Police have the power to require that a person state their name and personal details if requested. It is an offence to refuse to provide this information or to provide false information.

Maximum penalty: $1250

The licensee will be guilty of an offence if he/she allows a barred person to enter or remain in unlicensed premises or the casino.

Maximum penalty: $1250 (licensed premises)

Maximum penalty: $10 000 (casino)

Appealing against a barring order

Where a barring order has been issued against a person they can apply to the licensing authority for a review of the order. Depending on the section of the legislation under which the order was issued the relevant licensing authority will be either the Licensing Court or the Liquor and Gambling Commissioner. This right of review exists only for persons who have been banned for a period exceeding one month.

Disorderly behaviour- Offences against Public Order

A person who, in a public place or a police station, behaves in a disorderly or offensive manner, fights with another person or uses offensive language is guilty of an offence and liable to a maximum penalty of a fine of $1250 or imprisonment for three months [Summary Offences Act 1953 s.7]. Examples of disorderly behaviour include being abusive to others in the street or smashing beer bottles on the road. For the purposes of these offences, a public place includes any licensed premises or a ship or vessel.

Being drunk in a public place- Offences against Public Order

It is not an offence to be drunk in a public place. Under the Public Intoxication Act 1984 , the police may take a person who is drunk in a public place into custody and take the person home or to a police station or a sobering up centre. The person may not be kept at the police station for longer than ten hours (and must be released sooner if sober) but may be kept at the sobering up centre for eighteen hours. While at either place, the person must be given a reasonable opportunity to contact a lawyer, relative or friend.

A person who supplies methylated spirits or a liquid containing methylated spirits to someone else, knowing, or suspecting that he or she intends to drink it, is guilty of an offence. The maximum penalty for this offence is a fine of $750 [Summary Offences Act 1953 s.9a].

Indecent behaviour- Offences against Public Order

A person who behaves in an indecent manner in a public place, while visible from a public place, or in a police station or so as to offend or insult anyone is guilty of an offence punishable by a fine of $1250 or three months imprisonment [Summary Offences Act 1953 s.23(1)]. Examples of this sort of behaviour are indecently exposing oneself or masturbating in a public place or in public view.

It is not an offence to be naked in an area, or in waters adjacent to an area, reserved for nude bathing [Summary Offences Act 1953 s.23a].
A person who, in a public place or while visible from a public place or from occupied premises, wilfully does a grossly indecent act, whether alone or with another person, is guilty of an offence and liable to a penalty of a maximum fine of $2500 or imprisonment for six months [Summary Offences Act 1953 s.23(2)]. For offences of gross indecency in the presence of a person aged under the age of 16 years, see SEXUAL OFFENCES.

It is an offence to use language that is indecent or profane, or to sing indecent or profane songs in a public place [Summary Offences Act 1953 s.22]. The maximum penalty is a fine of $250. Language is indecent if it is highly offensive to the recognised standards of common propriety. This offence is not designed for the special protection of those who are easily shocked. It is meant to protect the public in its use of public places against any substantial breach of decorum.
It is an offence to use indecent language in a private place only if it can be heard in public places or in neighbouring occupied premises or is used with intent to offend or insult anyone.
The circumstances where the language is used may be important in deciding if the language is indecent. For example, words which would be offensive if used in a shop may not be offensive if used in the front bar of a hotel. For the purposes of this section, indecent includes obscene.

Trespassing- Offences against Public Order

A person on a premises who does not leave immediately when asked by an authorised person (or comes back within the following 24 hours), is guilty of an offence that has a maximum penalty of a fine of $2500 or imprisonment for six months [Summary Offences Act 1953 s 17A]. Even harsher penalties can apply to 'gatecrashers' or univited guests at parties held on private premises under s 17AB, see GATECRASHING AND PARTIES.
It is an offence to use offensive language or behave in an offensive manner while trespassing on premises, with a maximum fine of $1250. The same fine applies if a trespasser refuses to give his or her name and address when asked by an authorised person.
An authorised person who asks a trespasser to leave premises or to give his or her name and address must in turn tell the trespasser his or her name and address and official capacity. A person who falsely pretends to a trespasser, by word or action, to be an authorised person is guilty of an offence and liable to a maximum fine of $750.

Unlawfully on premises- Offences against Public Order

A person who is on a premises for an unlawful purpose or without a lawful excuse is guilty of an offence and may be fined up to $2500 or up to six months gaol [Summary Offences Act 1953 s.17].
A member of the police force who believes on reasonable grounds that a person is on premises to commit an offence may order the person to leave the premises. A person who fails to obey such an order is guilty of an offence with a maximum penalty of a fine of $2500 or six months imprisonment.
For the purposes of this offence, premises means any land, building, structure, aircraft, vehicle, ship or boat. The police must prove that the defendant had no lawful excuse for being on the premises. It is unlawful to be on premises without the express or implied permission of the owner or occupier.

Prostitution- Offences against Public Order

A person who, in a public place or within the sight or hearing of any person in a public place, accosts or solicits a person for the purpose of prostitution, or loiters in a public place for that purpose, is guilty of an offence punishable by a fine of up to $750 [Summary Offences Act 1953 s.25].
A prostitute is a person who offers his or her body for fee or reward.
A person who knowingly lives, wholly or in part, on the earnings of the prostitution of another person is guilty of an offence and liable to a maximum penalty of a fine of $2500 or imprisonment for six months [Summary Offences Act 1953 s.26]. The fact that a person lives with, or is habitually in the company of, a prostitute and apparently has no other lawful means of support is enough proof for this offence unless the person can prove otherwise.
A person who keeps or manages a brothel, or who receives money paid in a brothel for prostitution, is guilty of an offence and liable, for a first offence, to a maximum penalty of a fine of $1250 or imprisonment for three months. For a subsequent offence, the penalty is a fine of $2500 or imprisonment for six months [Summary Offences Act 1953 s.28].
A person who lets or sublets premises knowing that the premises are to be used as a brothel, or who permits the premises to be used as a brothel, is guilty of an offence and liable to the same penalties [Summary Offences Act 1953 29].

Firearms- Offences against Public Order

Penalties for unauthorised possession

Firearms licences

Firearms prohibition orders

Powers to require information, search and seize firearms

The Firearms Act 1977 s.5 provides for five classes of firearms:
Class A firearms includes air rifles, air guns, paint-ball firearms, .22 rim fire rifles (not self loading) and single or double barrel shotguns (not self-loading or pump action)includes air rifles, air guns, paint-ball firearms, .22 rim fire rifles (not self loading) and single or double barrel shotguns (not self-loading or pump action)
Class B firearms which are muzzle loading firearms (not handguns), revolver chamber rifles, centre fire rifles (not self-loading), double barrel centre fire rifles that are not designed to hold additional rounds in a magazine, break action combination shotguns and rifles and all other firearms (not being prescribed firearms, handguns, self-loading firearms or pump action shotguns) that are not class A firearms.
Class C firearms self-loading rim fire rifles having a magazine capacity of 10 rounds or less, self-loading shotguns firearms having a magazine capacity of 5 rounds or less, or pump action shotguns having a magazine capacity of 5 rounds or less. Class C does not include revolving chamber rifles.
Class D firearms self-loading rim fire rifles having a magazine capacity of more than 10 rounds, self-loading centre fire rifles, self-loading shotguns having a magazine capacity of more than 5 rounds, or pump action shotguns having a magazine capacity of more than 5 rounds. Class D does not include revolving chamber rifles.
Class H firearms which are handguns
Prescribed firearms which are automatic, have barrel(s) less than 330 mm (not pistols, air rifles, air guns or power heads), shotguns with barrel(s) less than 450 mm, air rifles and air guns with barrel(s) less than 250 mm, with overall length less than 750 mm (not pistols or power heads), that can be reduced to less than 750 mm in length and are then capable of being fired (not pistols), that are designed to fire projectiles containing tear gas or any other lachrymatory substance or any nauseate or poison, that are home made, that have the appearance of other objects, bazookas and similar military firearms.
The Commonwealth and all State and Territory governments have agreed that the possession of firearms is not a right but a conditional privilege. Personal protection is not a genuine reason.
Who can possess a firearm?
Classes of people permitted to possess a firearm include:

• sporting shooters who are members of registered clubs
• recreational shooters who have permission from landowners
• people with an occupational requirement such as primary producers
• security employees and professional shooters for nominated purposes
• bona fide collectors
• people as authorised by the Act.

Certain classes of firearms banned
Class C and D firearms are banned apart from exemptions for military, police and occupational categories of shooters licensed for a specific purpose (eg extermination of feral animals).
Primary producers may be licensed to hold class C firearms but only where the Registrar of Firearms is satisfied there is a genuine need that cannot be met with a non prohibited firearm.

Penalties for unauthorised possession

The penalty for unauthorised possession of a firearm depends upon the type of firearm:

• Prescribed firearm – maximum penalties are $50 000 or 10 years gaol
• Class C, D or H firearms – maximum penalties are $35 000 or 7 years gaol
• Any other firearm – maximum penalties of $20 000 or 4 years gaol (OR maximum fine of $10 000 or gaol for 2 years where the offence is dealt with in the Magistrates court)

What is possession of a firearm?
Possession of a firearm is defined to include not only handling a firearm but also having it in your home or in any vehicle you travel in [Firearms Act 1977 s.15D].

Firearms licences

To obtain a firearms licence a person must provide the same proof as is required when opening a bank account [Firearms Act 1977 s.12]. All licences include the holder's photograph and must be carried at all times when the holder is carrying or has immediate possession of the firearm. The maximum penalty for failing to carry a licence is $5000 [Firearms Act 1977 s.29C].
A person must be a fit and proper person to hold a firearms licence. People deemed not to be fit and proper people to hold a licence include anyone who has a mental or physical condition that would make it unsafe for that person to possess a firearm. Anyone who has a prior conviction for actual or threatened violence anywhere in the world, or who has a prior Firearms Act conviction anywhere in Australia, or who has at any time been the subject of a Domestic Violence Order anywhere in Australia would not be regarded as a fit and proper person. There are also requirements that the person comply with safe handling requirements and that it not be contrary to the public interest that she or he possess a firearm. A person under 18 years of age cannot obtain a firearms licence unless she or he is at least 15 years of age and is directly involved in primary production as a family member or employee [Firearms Act 1977 ss.5,12].
Further, medical practitioners and firearms clubs are required to inform the Registrar of Firearms if they have reasonable cause to believe that a person:

• is suffering from a physical or mental illness OR
• other circumstances exist

such that a threat could arise in relation to their own or others’ safety as a result of their possession, use or acquisition of a firearm [Firearms Act 1977 ss.27A and 21I]. In the case of firearms clubs there is an obligation to expel a person under circumstances where the actions or behaviour of a member give rise to a threat to their own or others' safety or where a firearms prohibition order applies [s.21H].
There are tight requirements on selling, giving, lending or hiring a firearm. The transfer must be witnessed by a licensed dealer, authorised officer or police officer [Firearms Act 1977 s.15B(9)]. In addition, if a class A, B, or H firearm is lent to someone it must be returned within 10 days. Breach of these requirements carries maximum penalties of $10 000 or two years gaol if it is a class C, D, H firearm or a prescribed firearm. For any other kind of firearm the maximum penalties are $5000 or up to one year gaol.

Firearms prohibition orders

Under the Firearms Act 1977 the Commissioner of Police may issue a firearms prohibition order against a person if satisfied that:
A

• Possession of a firearm by the person would be likely to result in undue danger to life and property, or
• The person is not a fit and proper person to possess a firearm,

And
B       It is in the public interest to prohibit the person from owning or using a firearm
A firearms prohibition order has the effect of disqualifying the person who is the subject of the order from obtaining any licence or permit relating to firearms and from using, acquiring or possessing firearms, firearm parts or ammunition. If they already hold a licence then the licence will be suspended.
A person subjected to a prohibition order will be required to surrender all firearms and must not reside at an address where firearms are present. They are also under an obligation to inform each person aged 18 years or over that they reside with of the fact that a prohibition order is in effect against them. Failure to do so will result in a maximum penalty of $10 000 or 2 years imprisonment.
The Firearms Act 1977 also provides for penalties for people who themselves are not the subject of a prohibition order but who supply firearms to a person the subject of the order or carry firearms in their presence. For example, a person who is not the subject of a prohibition order but who has a firearm on his or her person, if found in the company of a person under such an order, can themselves face a penalty of up to $10 000 or 2 years imprisonment. Even bringing a firearm or ammunition to the residence of a person who is subject to a firearms prohibition order consitutes an offence and the penalties can be very severe.
Penalties
Acquiring, using or possessing a firearm, firearm part or ammunition
Maximum penalty in the case of a firearm: $75 000 or imprisonment for 15 years
Maximum penalty in the case of a firearm part or ammunition: $35 000 or imprisonment for 7 years
Failure to surrender firearms, firearm parts or ammunition
Maximum penalty in the case of a firearm: $50 000 or imprisonment for 10 years
Maximum penalty in the case of a firearm part or ammunition: $20 000 or imprisonment for 4 years
Attending a firearms club or range, etc whilst subject to a prohibition order
Maximum penalty: $10 000 or 2 years imprisonment
Residing at an address where there are firearms or ammunition
Maximum penalty in the case of a firearm: $50 000 or 10 years imprisonment
Maximum penalty in the case of a firearm part or ammunition: $20 000 or 4 years imprisonment

Powers to require information, search and seize firearms

Powers to require information
The police have wide powers to require information of a person reasonably suspected of possessing or having possessed a firearm or ammunition and the penalty for failing to answer questions truthfully is a maximum fine of $10,000 or gaol for two years. This includes the full name, address and age of anyone suspected of possessing or having possessed a firearm or ammunition and the police may require proof.
Even people who may incriminate themselves are required to answer questions about the location of a firearm or identify anyone who has or has had possession of a firearm and may also be required to provide proof [Firearms Act 1977 s 30].
Police also have the power to demand firearms owners produce weapons for inspection (Firearms Act 1977 s 32(a1).
Powers to search and seize firearms
The police also have the power to seize any unsafe, unregistered or prohibited firearms. Seizure also applies if the person is not a fit or proper person to hold a firearm, there is undue danger to life or property, or there is a court order [Firearms Act 1977 s 32].
To ensure compliance with a firearms order, a police officer may detain a person to search for firearms, licences, mechanisms, fittings or ammunition (s 32(3a). They can also stop or detain a vehicle, vessel or aircraft or enter premises to conduct a search (s 32(3b)) and enter any premises. Where police suspect on reasonable grounds that a firearm, licence, mechanism, fitting or ammunition is being held on premises that would be subject to seizure they have the power to break into, enter and search those premises.
It is an offence to obstruct or resist a police officer acting in exercise of these powers and the maximum penalty is $10 000 or 2 years imprisonment.

Carrying an offensive weapon- Offences against Public Order

A person who, without lawful excuse, carries an offensive weapon or has in his or her possession or custody a housebreaking implement or who carries an article of disguise is guilty of an offence punishable by a fine of up to $2500 or six months imprisonment [Summary Offences Act 1953 s.15].

Some items such as knuckle-dusters, which have no innocent purpose, are naturally regarded as offensive, but just about anything can be an offensive weapon. A bottle, a stick, a closed pocket knife or even a baseball bat might be an offensive weapon if the person carrying it wants to use it as such or cannot establish an innocent reason for having it (see Verdiglione v Police [2007] SASC 349).

Carrying an offensive weapon for self-defence is not a lawful excuse. Similarly, many things can be classed as housebreaking implements. For example, a common household screwdriver could be a housebreaking implement, depending on the intention of the person who has it.

Other offences set out under section 15 of the Summary Offences Act 1953 , which carry more serious penalties, are:

·         In a public place and without lawful excuse, carrying or having control of:

·         A loaded firearm; or

·         A firearm and a loaded magazine that can be attached to and used in conjunction with the firearm.

The maximum penalty is $10,000 or imprisonment for two years.

·         Without lawful excuse:

·         Manufacturing, selling, distributing, supplying, or otherwise dealing in, dangerous articles; or

·         Having possession of, or using, a dangerous article.

The maximum penalty is $7,500 or imprisonment for 18 months.

Dangerous articles include blow guns, catapults, dart projectors and poisonous sprays. The full list of objects which are defined as dangerous articles is contained in Schedule 1 of the Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000 .

·         Without lawful excuse, at night, in or in the vicinity of licensed premises:

·         Carrying an offensive weapon; or

·         Possessing or using a dangerous article.

The maximum penalty is $10,000 or imprisonment for two years.

A person who is armed at night with a dangerous or offensive weapon intending to use the weapon to commit an offence against the person is guilty of an offence punishable by imprisonment of up to 7 years, or 10 years if previously convicted of an offence against the person or an offence under this section [Criminal Law Consolidation Act 1935 s.270D].

A person who is, in suspicious circumstances, in possession of an article intending to use it to commit certain specified offences is also guilty of an offence. The maximum penalty depends on the maximum penalty for the intended offence [see Criminal Law Consolidation Act 1935 s270C].

Riot, Affray and violent disorder- Offences against Public Order

Recent amendment to the Criminal Law Consolidation Act 1935 and the Summary Offences Act 1953 have introduced three new offence against the public order.

Riot
This is the most serious offence of the offences mentioned here. It is committed when 12 or more people are present together and use or threaten unlawful violence for a common purpose, and that the conduct of them causes a person (of reasonable firmness) present at the scene to fear their own personal safety. This offence can be committed in a public or private place. Common purpose can be inferred by conduct but the person needs to intend to use violence or is aware that their conduct may be violent. This offence involves both violence and public alarm, alarm in the sense that the conduct is currently or potentially dangerous. Violence here can include violence to property or person. [Criminal Law Consolidation Act 1935 s83B]
The penalty is a maximum of 7 years imprisonment for a basic offence and up to 10 years for an aggravated offence.
Affray
A person has committed the offence of affray when they use or threaten violence towards another and their conduct would cause a person (of reasonable firmness) to fear for their personal safety. This may involve more than one person and when it does the behaviour of all people should be considered when determining its effect. The threat here can not be made by words alone and must include conduct. Similarly to riot, affray can be committed in either a public or private place and the person needs to have intended to use or threaten violence or is aware that their conduct may be violent. Violence here does not include violent conduct towards property. [Criminal Law Consolidation Act 1935 s83C]
An example of an affray is a fight between two or more people with a level of violence that puts an innocent bystander in substantial fear (not just a passing concern) for their personal safety.
The offence can be made out even if a person of reasonable firmness is not present at the scene. This means, for example, that incidents captured on surveillance camera where no members of the public are present can still be prosecuted.
The penalty for a basic offence is a maximum of three years imprisonment and for an aggravated offence the maximum is imprisonment for five years.
Violent Disorder
This offence has been committed when three or more people present together use or threaten unlawful violence and the conduct of them taken together would cause a person (of reasonable firmness) to fear their personal safety. This offence may be committed in both private and public places. A person must intend to use or threaten violence or is aware that his or her conduct may be violent or threaten violence. The notion of violence here can include violent conduct towards property as well as a person. [Summary Offences Act 1953 s6A]
The penalty for this offence is a maximum fine of $10,000 or imprisonment for two years.

Outlawed motorcycle gangs and criminal associations- Offences against Public Order

Under the Serious and Organised Crime (Control) Act 2008 the Commissioner of Police can apply to the Attorney-General that an organisation (such as a motorcycle gang) be made a ‘declared organisation’. When an application is made to the Attorney-General notice of this must be published in the Government Gazette and a state-wide newspaper. Members of the public may make submissions and the declaration cannot be made until the end of the 28 day period given to allow these submissions.

If the Attorney-General is satisfied that the members of the organisation associate for the purpose of organising or supporting serious criminal activity and there is a risk to public safety a declaration can be issued against the organisation.

Where an organisation has been made a ‘declared organisation’ this provides the legal trigger for the Commissioner of Police to apply for a control order against a member (or an associate of a member) of that organisation.

Control orders

Under s 14 of the Act where a person is a member of a declared organisation the Court must make a control order against the person if an application is made by the Commissioner of Police. This means that the Court itself has no discretion to refuse to make the order.

Where a person has been a member of an organisation that is now a declared organisation, the Court has some discretion as to whether to make the order. The same applies where a person participates (or has participated) in serious criminal activity and regularly associates with members of a declared organisation or other serious criminal offender.

The effect of a control order

A control order may prohibit a person from:

·         associating or communicating with a specified person or persons or class of persons, or

·         being in the vicinity of specified premises, or

·         possessing specified articles or articles of a specified class

If the person who is the subject of a control order is a member of a declared organisation the order must prohibit them from:

·         associating with other persons who are members of declared organisations

·         possessing a dangerous article or prohibited weapon

‘Associating’ includes communication by any means such as letter, telephone, facsimile, email or other electronic means.

A person who has been served with a control order has the right to make an objection. A notice of objection must be lodged with the Magistrate’s Court within 14 days of being served with the control order.

Breach or failure to comply with control order

It is an offence to breach or fail to comply with a control order.

Maximum penalty:     5 years imprisonment

Public safety orders

Under s 23 of the Serious and Organised Crime (Control) Act 2008 a senior police officer (i.e. an officer of or above the rank of inspector) can make a public safety order where he or she is satisfied that a person or group of persons poses a serious risk to public safety or security.

A public safety order can prohibit a person or group of persons from being at specified premises, attending a specified event or being in a specified area. Orders cannot be in effect for a period of more than 72 hours in total. Where police wish to issue a public safety order for a longer period of time they must apply to the Court.

Where a public safety order has been issued for a period of more than 7 days, a person who is the subject of the order may lodge a notice of objection with the Magistrates Court.

Breach or failure to comply with public safety order

It is an offence to breach or fail to comply with a public safety order.

Maximum penalty:     5 years imprisonment

Where a public safety order prohibits a person from entering or being in a specified area but they had a reasonable excuse for entering or being there,this can constitute a defence to a charge of failure to comply.

Power to search vehicles or premises

Where a public safety order has been issued the police have powers to search vehicles or premises if they have reasonable grounds to suspect that the person identified in the order is on the premises or in the vehicle.

Criminal associations

Association with person the subject of a control order or public safety order

It is an offence to associate with a person who is a member of a declared organisation or the subject of a control order. In order to commit this offence it must be shown that the person knew that their associate was a member of a declared organisation or subject to a control order or was reckless as to this fact.

The level of association required to commit the offence is association of not less than 6 occasions during a period of 12 months.

The maximum penalty for this offence is 5 years imprisonment.

Association between people who have criminal convictions

A person who has a criminal conviction for an offence of a type prescribed by regulation* who associates with another person with a criminal conviction of a type prescribed by regulation on not less than 6 occasions during a period of 12 months will also be guilty of an offence.

The maximum penalty for this offence is 5 years imprisonment.

* Offences prescribed by regulation include assault, firearms offences, offences relating to procurement for prostitution and keeping a brothel, bribery, and offences against the Explosives Act 1936 (see s 4 of the Serious and Organised Crime (Control) Regulations 2008).

The following are exceptions to the offence of criminal associations:

·         associations between close family members (this includes a spouse or former spouse or someone in a close personal relationship, a parent or grandparent, brother or sister or guardian or carer)

·         associations occurring in the course of a lawful occupation, business or profession

·         associations occurring at a prescribed course of training or education between persons enrolled in that course

·         associations occurring at a rehabilitation, counselling or therapy session of a prescribed kind

·         associations occurring in lawful custody or in the course of complying with a court order

·         associations of a prescribed kind