Recent changes to the law, and to the powers of police, mean that you need to think twice next time you stroll home after a night at the pub, climb a tree in your local park or question why a police officer has asked you to do something. Your right to free use of public spaces is not as clear and unmitigated as it once was and if you are someone who enjoys the freedom that Queensland offers then you need to read the following very carefully.
The two legal pillars of most concern are the police move-on powers located in the Police Powers and Responsibilities Act 2000 and public nuisance law as set out in the Summary Offences Act 2005. These are separate arms of the law, but both have the effect of greatly increasing the number of people coming into contact with the criminal justice system.
If you are reading this thinking that as a peaceful citizen these laws aren’t going to affect you, then think again. The recent, poorly defined expansion of the law in this state means that you, Honest John or Jane Citizen, just might be causing “anxiety” to someone else in a “public place”. And in causing that “anxiety,” you just might have committed an offence.
Move-on powers were originally recommended by the Criminal Justice Commission in 1993. In 2000, the law was amended to cover all shopping centres in QLD and more recently has been extended to all public spaces throughout the state.
Under s6 of the Summary Offences Act 2005 a person commits a public nuisance offence if they behave in a disorderly, offensive, threatening or violent way; and their behaviour interferes with the peaceful passage through, or enjoyment of, a public place by a member of the public. A public nuisance, in its most obvious form, is someone using offensive, obscene, indecent or abusive language or behaving in a threatening way.
But be warned. If your favourite Slayer T-Shirt makes frail old Mrs Dodson anxious, then potentially, the police have the power to move you on. If the Egyptian guy at the airport is making other passengers a little “anxious” then surely he too could be requested by police to move on? And if you’re doing or being something that is likely to make someone cross the road to avoid you - then you’re a potential public nuisance.
As a solicitor at Caxton Legal Centre, Bridget Burton sees first-hand the impact of public nuisance law.
Caxton Legal Centre has seen a recent rise in the number of people seeking assistance with public nuisance offences and Bridget is unconvinced that the laws are being reasonably applied:
“Unfortunately, what we are seeing is a high number of public nuisance offences which are based on extremely trivial factual scenarios. These offences are arising without complaint from other members of the public and are largely being applied because the person’s conduct is being interpreted by police as ‘likely to interfere’ with other people’s enjoyment of a public space.
“The offence of public nuisance is incredibly broad. The range of things which can potentially be construed as an illegal interference with the enjoyment by other people of a public space is enormous. The situation is exacerbated by the fact that there is no defence of, for example, reasonableness or necessity, to a charge of public nuisance so many people choose to plead guilty even where their behaviour was reasonable or necessary in the circumstances.”
Dr Tamara Walsh, law lecturer at the University of Queensland and a member of the Rights in Public Space Action Group (RIPS), supports this. “Because many of those being affected by these laws are either too poor or too ill-informed to adequately defend themselves, there are an alarming number of guilty pleas being submitted. People are choosing to plead guilty, take a fine and get it over and done with rather than properly defend themselves. The other complicating factor is that you don’t get duty lawyer representation if you plead not guilty so the situation as it stands for many people is that you can plead guilty with representation, or plead not guilty and not be represented.”
Lars Falcongreen is a lawyer for the Aboriginal and Torres Strait Islander Legal Service. The public nuisance he sees “range from the typical kinds, which the legislation was intended to cover, like drunk and aggressive behaviour, people throwing their arms around and abusing the public and the police, right through to the simplest kind of matters like cheekiness towards the police. Unfortunately, some police prosecutors still seem to be proceeding with such trivial matters. In my experience, it seems that the public nuisance laws are almost always used by police as a control mechanism without actually being implemented at the request of other members of the public.”
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