Summary Offences Act 1988 (NSW)

Summary Offences Act 1988 No 25 An Act with respect to conduct in public and other places; to repeal the Offences in Public Places Act 1979, the Public Assemblies Act 1979 and the Prostitution Act 1979; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Summary Offences Act 1988. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— building means a building or structure, or any part of a building or structure. church means— (a) a building ordinarily used for Divine worship, and (b) any land occupied or used in connection with such a building. dwelling means— (a) a building intended for occupation as a residence and being, or capable of being, so occupied, except where it is above, or attached to, a shop or commercial premises, and (b) such a building that is part of a retirement village or is among the buildings in which persons live as a religious or other private community, and (c) any land occupied or used in connection with a building referred to in paragraph (a) or (b). hospital means— (a) a public hospital within the meaning of the Health Services Act 1997 controlled by a local health district or the Crown, or (b) a statutory health corporation or affiliated health organisation within the meaning of that Act, or (c) a private health facility within the meaning of the Private Health Facilities Act 2007 or a nursing home within the meaning of the Public Health Act 2010, and any land or building occupied or used in connection with such a hospital, establishment or nursing home. knife includes— (a) a knife blade, or (b) a razor blade, or (c) any other blade, but does not include anything that is of a class or description declared by the regulations to be excluded from this definition. premises includes a structure, building, vehicle, vessel or place, whether built on or not, and any part thereof. prohibited drug has the same meaning as it has in the Drug Misuse and Trafficking Act 1985. prostitution includes acts of prostitution between persons of different sexes or of the same sex, and includes— (a) sexual intercourse within the meaning of Division 10 of Part 3 of the Crimes Act 1900, and (b) masturbation committed by one person on another, for payment. public place means— (a) a place (whether or not covered by water), or (b) a part of premises, 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. residence includes a building in which a person resides as part of a private community. road means a road within the meaning of section 4 (1) of the Road Transport Act 2013 (other than a road that is the subject of a declaration made under section 18 (1) (b) of that Act relating to all of the provisions of that Act). road related area means a road related area within the meaning of section 4 (1) of the Road Transport Act 2013 (other than a road related area that is the subject of a declaration made under section 18 (1) (b) of that Act relating to all of the provisions of that Act). school means— (a) a government school or a registered non-government school within the meaning of the Education Act 1990, and (b) a school providing education (whether secular or religious) at a pre-school or infants' school level or at a primary or secondary level, and (c) a place used for the purposes of an establishment commonly known as a child-minding centre or for similar purposes, and (d) the land, and any building, occupied by or in connection with the conduct of such a school or place, and includes any part of such a school or place, but does not include any building that is occupied or used solely as a residence or solely for a purpose unconnected with the conduct of such a school or place. vehicle includes— (a) a motor vehicle (whether or not still capable of being driven), and (b) a train or other vehicle used on a railway or monorail, and (c) a caravan or anything else constructed to be drawn by a vehicle or animal. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) For the purposes of this Act, a person who is in a vehicle in any place shall be taken to be in that place. (3) Section 8 of the Crimes Act 1900 does not apply in relation to the expression "public place" in this Act. (4) Notes included in this Act do not form part of this Act. Part 2 Offences in public and other places Division 1 Offensive behaviour 4 Offensive conduct (1) A person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school. Maximum penalty—6 penalty units or imprisonment for 3 months. (2) A person does not conduct himself or herself in an offensive manner as referred to in subsection (1) merely by using offensive language. (3) It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence. 4A Offensive language (1) A person must not use offensive language in or near, or within hearing from, a public place or a school. Maximum penalty—6 penalty units. (2) It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence. (3) Instead of imposing a fine on a person, the court— (a) may make a community correction order under section 8 of the Crimes (Sentencing Procedure) Act 1999 that is subject to the standard conditions of a community correction order and to a community service work condition (despite the offence not being punishable by imprisonment), or (b) may make an order under section 5 (1) of the Children (Community Service Orders) Act 1987 requiring the person to perform community service work, as the case requires. (4), (5) (Repealed) (6) However, the maximum number of hours of community service work that a person may be required to perform under an order in respect of an offence under this section is 100 hours. 5 Obscene exposure A person shall not, in or within view from a public place or a school, wilfully and obscenely expose his or her person. Maximum penalty—10 penalty units or imprisonment for six months. 6 Obstructing traffic A person shall not, without reasonable excuse (proof of which lies on the person), wilfully prevent, in any manner, the free passage of a person, vehicle or vessel in a public place. Maximum penalty—4 penalty units. 6A Unauthorised entry of vehicle or boat A person must not, without reasonable excuse (proof of which lies on the person), enter any vehicle or boat in a public place without the consent of the owner or lawful occupier of the vehicle or boat. Maximum penalty—4 penalty units. 7 Damaging fountains A person shall not wilfully— (a) damage or deface, or (b) enter upon, or (c) cause any foreign material or substance to enter into, any part of a fountain erected in a public place. Maximum penalty—4 penalty units. 8 Damaging or desecrating protected places (1) In this section— interment site has the meaning it has in Part 4 of the Cemeteries and Crematoria Act 2013 and includes a memorial (within the meaning of that Act). protected place means a shrine, monument or statue located in a public place, and (without limitation) includes a war memorial or an interment site. war memorial means a war memorial located in a public place, and (without limitation) includes— (a) the Anzac Memorial in Hyde Park, Sydney, being— (i) the memorial building referred to in the Anzac Memorial (Building) Act 1923, and (ii) the land described in the Schedule to that Act, and (iii) any other structure on that land, and (b) any other place prescribed under subsection (4) as a war memorial for the purposes of this section. (2) A person must not wilfully damage or deface any protected place. Maximum penalty—40 penalty units. (3) A person must not commit any nuisance or any offensive or indecent act in, on or in connection with any war memorial or interment site. Maximum penalty—20 penalty units. (3A) Instead of imposing a fine on a person under this section, the court— (a) may make a community correction order under section 8 of the Crimes (Sentencing Procedure) Act 1999 that is subject to the standard conditions of a community correction order and to a community service work condition (despite the offence not being punishable by imprisonment), or (b) may make an order under section 5 (1) of the Children (Community Service Orders) Act 1987 requiring the person to perform community service work, as the case requires. (4) The regulations may prescribe a place (within a public place) as a war memorial for the purposes of this section, comprising— (a) a specified shrine, monument, statue or other structure or place, and (b) a specified area (if any) within its vicinity. 8A Climbing on or jumping from buildings and other structures (1) A person who risks the safety of any other person as a consequence of— (a) abseiling, jumping or parachuting from any part of a building or other structure, or (b) climbing down or up or on or otherwise descending (except as referred to in paragraph (a)) or ascending any part of a building or other structure, except by use of the stairs, lifts or other means provided for ascent or descent of it, is guilty of an offence. Maximum penalty—10 penalty units or imprisonment for 3 months, or both. (2) A person is not guilty of an offence under this section for doing anything if the person establishes that he or she had some reasonable excuse for doing it or did it for a lawful purpose. (3) In this section— structure includes a bridge, crane (whether mobile or not) and tower, but does not include a structure provided for climbing or jumping for recreational purposes. 9 Continuation of intoxicated and disorderly behaviour following move on direction (1) A person who— (a) is given a move on direction for being intoxicated and disorderly in a public place, and (b) at any time within 6 hours after the move on direction is given, is intoxicated and disorderly in the same or another public place, is guilty of an offence. Maximum penalty—15 penalty units. (2) For the purposes of this section, a move on direction is a direction given to a person by a police officer, under section 198 of the Law Enforcement (Powers and Responsibilities) Act 2002, to leave a public place and not return for a specified period. Note. The maximum period for which a person can be directed not to return to a public place is 6 hours. It is a requirement under section 198 of the Law Enforcement (Powers and Responsibilities) Act 2002 that the police officer warn a person given a move on direction for being intoxicated and disorderly in a public place that it is an offence to be intoxicated and disorderly in that or any other public place at any time within 6 hours after the move on direction is given. (3) In proceedings for an offence against this section, it is necessary to prove that a move on direction was given within 6 hours before the person was found to be intoxicated and disorderly in a public place, but it is not necessary to prove that the person contravened the move on direction by being so intoxicated and disorderly in the public place at the time concerned. (4) A person cannot be proceeded against or convicted for both an offence against this section and an offence against section 199 of the Law Enforcement (Powers and Responsibilities) Act 2002 (Failure to comply with direction) in relation to the same conduct. (5) It is sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence. (6) For the purposes of this section, a person is intoxicated if— (a) the person's speech, balance, co-ordination or behaviour is noticeably affected, and (b) it is reasonable in the circumstances to believe that the affected speech, balance, co-ordination or behaviour is the result of the consumption of alcohol or any drug. 10 (Renumbered as sec 11B) 10AA, 10AB (Renumbered as secs 11E, 11F) 10A–10E (Repealed) 11 Possession of liquor by minors (1) A person under the age of 18 years is guilty of an offence if the person possesses or consumes any liquor in a public place, unless the person establishes that— (a) the person was under the supervision of a responsible adult, or (b) the person had a reasonable excuse for possessing or consuming the liquor. Maximum penalty—$20. (2) A police officer may seize liquor in the possession of a person in a public place, if the officer suspects, on reasonable grounds, that— (a) the person is under the age of 18 years, and (b) the person is not under the supervision of a responsible adult, and (c) the person does not have a reasonable excuse for possessing the liquor. (3) Liquor seized under this section is forfeited to the Crown. (4) Liquor may be seized under this section from a person's possession even though the person is under the age of criminal responsibility. (5) A person may not be arrested for an offence under subsection (1), except so far as may be necessary for the purpose of the administration of a caution by a police officer in relation to such an offence. (5A) A police officer who reasonably suspects that a person has committed an offence under subsection (1) may require that person— (a) to state his or her full name and residential address, and (b) to produce then, or at a police station within a reasonable time, documentary evidence that might reasonably be accepted as applying to the person and as proving that the person is at least 18 years of age. (5B) A person the subject of a requirement under subsection (5A) must not— (a) refuse to state his or her full name and residential address, or (b) state a false name or residential address, or (c) without reasonable excuse, refuse or fail to produce evidence of age as referred to in subsection (5A) (b). Maximum penalty—$20. (6) The regulations may make provision for or with respect to— (a) the procedure to be followed as regards the seizure of liquor under this section and the procedure to be followed after its seizure, and (b) without limiting paragraph (a), prescribing the circumstances in which, and the procedure by which, liquor seized under this section is to be returned, and (c) prescribing circumstances in which the other provisions of this section do not apply. (7) In this section— liquor has the same meaning as in the Liquor Act 2007, and includes any container containing liquor. 11A Violent disorder (1) If 3 or more persons who are present together use or threaten unlawful violence and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using or threatening unlawful violence is guilty of an offence. Maximum penalty—10 penalty units or imprisonment for 6 months. (2) It is immaterial whether or not the 3 or more persons use or threaten unlawful violence simultaneously. (3) No person of reasonable firmness need actually be, or be likely to be, present at the scene. (4) An offence under subsection (1) may be committed in private as well as in public places. (5) A person is guilty of an offence under subsection (1) only if he or she intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence. (6) Subsection (5) does not affect the determination for the purposes of subsection (1) of the number of persons who use or threaten violence. (7) In this section— violence means any violent conduct, so that— (a) it includes violent conduct towards property as well as violent conduct towards persons, and (b) it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short). Division 2 Dangerous behaviour Subdivision 1 Knives and offensive implements 11B Custody of offensive implement (1) A person shall not, without reasonable excuse (proof of which lies on the person), have in his or her custody an offensive implement in a public place or a school. Maximum penalty—50 penalty units or imprisonment for 2 years. (2) If a person is convicted of an offence under this section, the court may, in addition to any penalty it may impose, make an order that the offensive implement be forfeited to the Crown, and the implement is forfeited accordingly. (3) In this section— offensive implement means— (a) anything made or adapted for use for causing injury to a person, or (b) anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property. 11C (Repealed) 11D Parents who allow children to carry knives (1) The parent of a child, being a child— (a) who is under the age of 18 years, and (b) who commits an offence against the Crimes Act 1900, section 93IB, is guilty of an offence if the parent knowingly authorised or permitted the child to commit the offence. Maximum penalty—5 penalty units. (2) The parent of a child may be proceeded against and dealt with under this section whether or not the child has been proceeded against or dealt with under the Crimes Act 1900, section 93IB. (3) Nothing in this section affects the liability of the parent's child for an offence committed by the child against the Crimes Act 1900, section 93IB. (4) If an act or omission constitutes an offence— (a) under this section, and (b) under section 11 of the Children (Protection and Parental Responsibility) Act 1997, the offender is not liable to be punished twice in respect of the act or omission. (5) In this section, parent of a child has the same meaning it has in the Children (Protection and Parental Responsibility) Act 1997. 11E (Repealed) 11F Sale of knives to children (1) A person who sells a knife to a child under the age of 16 years is guilty of an offence. Maximum penalty—100 penalty units or imprisonment for 12 months, or both. (1A) A person who, without reasonable excuse, sells a knife to a child who is 16 or 17 years of age is guilty of an offence. Maximum penalty—100 penalty units or imprisonment for 12 months, or both. (2) It is a defence (proof of which lies on the person) to a prosecution for an offence under this section that the person selling the knife believed on reasonable grounds that— (a) for an offence under subsection (1)—the child was at least 16 years of age, or (b) for an offence under subsection (1A)—the child was at least 18 years of age. (2A) For subsection (1A), it is a reasonable excuse for a person to sell a knife to a child who is 16 or 17 years of age if the person is satisfied the child reasonably requires the knife for the lawful pursuit of the child's occupation, education or training. (3) If an employee contravenes subsection (1) or (1A), the employer is taken to have contravened that subsection, whether or not the employee contravened the provision without the employer's authority or contrary to the employer's orders or instructions. (4) It is a defence to a prosecution against an employer for such a contravention if it is proved— (a) that the employer had no knowledge of the contravention, and (b) that the employer could not, by the exercise of due diligence, have prevented the contravention. (5) An employer may be proceeded against and convicted under subsection (1) or (1A) by virtue of subsection (3) whether or not the employee has been proceeded against or convicted under subsection (1) or (1A). (6) The regulations may provide that this section does not apply to or in relation to any specified class or description of knife. Subdivision 2 Laser pointers 11FA Custody or use of laser pointer in public place (1) A person must not, without reasonable excuse (proof of which lies on the person)— (a) have in his or her custody a laser pointer in a public place, or (b) use a laser pointer in a public place. Maximum penalty—50 penalty units or imprisonment for 2 years, or both. (2) Without limitation, it is a reasonable excuse for the purposes of this section for a person— (a) to have custody of, or use, a laser pointer if the custody or use is reasonably necessary in all the circumstances for the lawful pursuit of the person's occupation, education, training or hobby, or (b) to have custody of a laser pointer if the person has custody during travel to or from or incidental to that occupation, education, training or hobby. (3) The regulations may provide that this section does not apply to or in relation to any specified class or description of laser pointer. (4) In this section— laser pointer means a hand-held battery-operated device, designed or adapted to emit a laser beam, that may be used for the purposes of aiming, targeting or pointing. Division 2A Loitering by convicted child sexual offenders 11G Loitering by convicted child sexual offenders near premises frequented by children (1) A person who is a convicted child sexual offender and who loiters, without reasonable excuse, in or near— (a) a school, or (b) a public place regularly frequented by children and in which children are present at the time of the loitering, is guilty of an offence. Maximum penalty—100 penalty units or imprisonment for 2 years, or both. (2) In this section— child means a person under the age of 16 years. convicted child sexual offender means a person who has been convicted, whether before or after the commencement of this section, of any of the following offences— (a) an offence involving sexual activity or sexual touching or a sexual act (within the meaning of Division 10 of Part 3 of the Crimes Act 1900) that was committed in New South Wales against or in respect of a child and that was punishable by penal servitude or imprisonment for 12 months or more, (b) an offence under sections 91D–91G of the Crimes Act 1900 (other than if committed by a child prostitute), (c) an offence under section 91H, 578B or 578C (2A) of the Crimes Act 1900, (c1) an offence an element of which is an intention to commit an offence referred to in paragraph (a), (b) or (c), (d) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraphs (a)–(c), (e) an offence under a law of a place outside New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraphs (a)–(d). conviction includes a spent conviction. (3) For the purposes of this section, section 579 of the Crimes Act 1900 does not apply to or in respect of an offence referred to in the definition of convicted child sexual offender in subsection (2). Division 2B Intimidatory use of vehicles and vessels 11H Intimidatory use of vehicles and vessels (1) A person must not operate a motorised vehicle or motorised vessel in a public place— (a) in such a manner as to harass or intimidate another person, or (b) in such a manner as would be likely to cause a person of reasonable firmness to fear for his or her personal safety. Maximum penalty—6 penalty units. (2) No person of reasonable firmness need actually be, or be likely to be, present at the scene. (3) A person is not liable to be convicted (in respect of the same act or omission) of both— (a) an offence under this section, and (b) an offence under section 118 (Menacing driving) of the Road Transport Act 2013 (or a former corresponding provision within the meaning of that Act). (4) In this section— vehicle includes— (a) anything on wheels, tracks or skis, other than a vehicle used on a railway, tramway or monorail, and (b) anything else declared by the regulations to be a vehicle for the purposes of this section. vessel includes— (a) anything that is used, or is capable of being used, as a means of transportation on, under or immediately above water, and (b) anything else declared by the regulations to be a vessel for the purposes of this section. Division 3 Miscellaneous 12 Defence It is a sufficient defence to a prosecution for an offence under any of the provisions of this Part if the defendant satisfies the court that the act complained of in the information for the offence was done with lawful authority. 13 Particulars to be furnished (1) If a defendant charged with an offence under any of the provisions of this Part— (a) has requested the informant to furnish to the defendant reasonable particulars of the behaviour or conduct the subject of the charge, and (b) the informant, or some person on his or her behalf, has not so furnished those particulars, the court before which the defendant is charged shall adjourn the charge pending the furnishing of those particulars or may dismiss the charge. (2) If, at the hearing of a charge for an offence referred to in subsection (1)— (a) the evidence discloses behaviour or conduct that constitutes such an offence, and (b) that behaviour or conduct is different from the behaviour or conduct of which particulars have been given to the defendant under subsection (1), the court may, on the application of the defendant and if it is of the opinion that the defendant was deceived by those particulars, adjourn the hearing on such terms as it thinks fit. Part 3 Prostitution 14 Exclusion of matters dealt with under certain Acts In this Part— premises does not include— (a) the premises of a club registered under the Registered Clubs Act 1976, or (b) licensed premises under the Liquor Act 1982. 15 (Repealed) 15A Causing or inducing prostitution (1) A person must not, by coercive conduct or undue influence, cause or induce another person to commit an act of prostitution. (2) A person must not, by coercive conduct or undue influence, cause or induce another person to surrender any proceeds of an act of prostitution. Maximum penalty—50 penalty units or imprisonment for 12 months, or both. 16 Prostitution or soliciting in massage parlours etc A person shall not use, for the purpose of prostitution or of soliciting for prostitution, any premises held out as being available— (a) for the provision of massage, sauna baths, steam baths or facilities for physical exercise, or (b) for the taking of photographs, or (c) as a photographic studio, or for services of a like nature. Maximum penalty—5 penalty units or imprisonment for 3 months. 17 Allowing premises to be used for prostitution (1) A person, being the owner, occupier or manager, or a person assisting in the management, of any premises held out as being available— (a) for the provision of massage, sauna baths, steam baths or facilities for physical exercise, or (b) for the taking of photographs, or (c) as a photographic studio, or for services of a like nature, shall not knowingly suffer or permit the premises to be used for the purpose of prostitution or of soliciting for prostitution. Maximum penalty—50 penalty units or imprisonment for 12 months. (2) A conviction under subsection (1) does not exempt the offender from any penalty or other punishment to which he or she may be liable for keeping or being concerned in keeping a disorderly house, or for the nuisance occasioned by it. 18 Advertising premises used for prostitution A person shall not, in any manner— (a) publish or cause to be published an advertisement, or (b) erect or cause to be erected any sign, indicating that any premises are used or are available for use, or that a person is available, for the purposes of prostitution. Maximum penalty—6 penalty units or imprisonment for 3 months. 18A Advertising for prostitutes (1) A person shall not, in any manner, publish or cause to be published an advertisement for a prostitute. Maximum penalty—10 penalty units or imprisonment for 3 months. (2) In this section, advertisement for a prostitute means an advertisement that indicates, or that can be reasonably taken to indicate, that— (a) employment for a prostitute is or may be available, or (b) a person is required for employment as a prostitute or to act as a prostitute, or (c) a person is required for employment in a position that involves, or may involve, acting as a prostitute. 19 Soliciting clients by prostitutes (1) A person in a road or road related area shall not, near or within view from a dwelling, school, church or hospital, solicit another person for the purpose of prostitution. Maximum penalty—6 penalty units or imprisonment for 3 months. (2) A person shall not, in a school, church or hospital, solicit another person for the purpose of prostitution. Maximum penalty—6 penalty units or imprisonment for 3 months. (3) A person shall not, in or near, or within view from, a dwelling, school, church, hospital or public place, solicit another person, for the purpose of prostitution, in a manner that harasses or distresses the other person. Maximum penalty—8 penalty units or imprisonment for 3 months. (4) The provisions of this section are in addition to, and do not derogate from, any other law (including section 4). (5) In this section— (a) a reference to a person who solicits another person for the purpose of prostitution is a reference to a person who does so as a prostitute, and (b) a reference to soliciting includes a reference to soliciting from a motor vehicle, whether moving or stationary. 19A Soliciting prostitutes by clients (1) A person in a road or road related area must not, near or within view from a dwelling, school, church or hospital, solicit another person for the purpose of prostitution. Maximum penalty—6 penalty units or imprisonment for 3 months. (2) A person must not, in a school, church or hospital, solicit anot