SUMMARY OFFENCES BILL 2004 Explanatory Notes
SUMMARY OFFENCES BILL 2004
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Summary Offences Bill 2004
Summary Offences Bill 2004
Explanatory Notes
General Outline
Objective of the Legislation
The Summary Offences Bill 2004 ("the Bill") provides for some simple
offences to be heard and determined in a magistrates court. The Bill also
repeals the Vagrants Gaming and Other Offences Act 1931 and the
Suppression of Gambling Act 1895.
Many of the provisions of the Vagrants Gaming and Other Offences Act
1931 were so outdated that they were no longer suitable for enforcement in
today's society. The concept of declaring a person to be a `vagrant' did not
reflect current community expectations and therefore had no legitimate
place in Queensland statutes.
The Bill provides a number of offences which deal with anti-social
behaviour. It also provides for offences that are `pre-emptive' in nature to
more serious offences under the Criminal Code. Thus, action can be taken
at a stage prior to offences such as burglary or unlawful use of a motor
vehicle occurring.
Means of achieving policy objectives
The legislation will enable public order offences and minor criminal
offences to be heard and determined in a magistrates court.
Alternative means of achieving policy objectives
It is possible to amend the Vagrants Gaming and Other Offences Act 1931
to reflect policy changes, however, the number of changes needed to update
the law are so numerous, it would not be any more effective than
introducing this Bill.
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Summary Offences Bill 2004
Estimated cost of implementation for government
The financial impact of the Bill will be low and absorbed within existing
budgets.
Consistency with fundamental legislative principles
The Bill is consistent with fundamental legislative principles. There are a
number of provisions presently in the Vagrants Gaming and Other
Offences Act 1931 that contain a reverse onus of proof. While some of
these offence provisions have been placed into the Summary Offences Bill,
the reverse onus of proof has been removed.
Consultation conducted in development of the bill
There was general community consultation undertaken by the Vagrants
Gaming and Other Offences Review Committee.
Where there are potential implications on the roles of government
departments, these departments were consulted with respect to the relevant
portions of the Bill.
Notes on Provisions
Chapter 5 of the Criminal Code applies to the Bill in accordance with
section 36 of the Criminal Code read in conjunction with section 3 of that
Code.
Part 1 - Preliminary
Short title
Clause 1 specifies the short title of the Bill.
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Summary Offences Bill 2004
Commencement
Clause 2 provides that the Bill is to commence on a day to be fixed by
proclamation. A commencement by proclamation will allow sufficient
time for police officers to be trained in the new provisions.
Definitions
Clause 3 provides that the dictionary in schedule 2 defines particular words
used in this Act.
Notes
Clause 4 provides that a note in the text of the Bill is part of the Bill.
Part 2 -- Offences
Division 1 - Offences about quality of community use
of public spaces
Object of div 1
Clause 5 states the objective of division 1 is to ensure that members of the
public should be able to lawfully use and pass through public places
without interference from the unlawful acts of nuisance committed by other
people.
Public nuisance
Clause 6 creates an offence of `public nuisance' and defines what
constitutes the offence. In determining what is a `public nuisance' offence
in terms of the section, a court, is not limited by, but should take into
account the following examples -
1. A person calling another person a slut in a shopping centre or a park
may constitute offensive language.
2. A person using obscene language in a mall or a street may constitute
offensive language.
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Summary Offences Bill 2004
3. A person using obscene language in the public bar of a hotel in the
course of a conversation with another person may not constitute
offensive language.
4. A person who disrupts a church service by using language offensive to
persons at that service or to persons who are gathering for the service
or to persons who are outside a place of worship after a service may
commit an offence. However, the section does not prevent a person
from lawfully protesting and expressing an opinion about adverse
decisions or actions of a church or its members.
5. A person encourages another to participate in a fight.
6. A person running over the roofs of parked cars.
7. A person engaging in an act of sexual intercourse in view of others in
a public place.
8. A person urinating in view of another in a public place.
9. A person walking past persons dining and interfering with a person's
food.
10. A person seeking money or property from another in a manner that
causes a person to be intimidated, have concern about their safety, or
such as to cause a person to leave a public place.
11. Behaving in a manner that might cause another person to leave a
public place.
Review
Clause 7 provides that after 1 October 2005, the Crime and Misconduct
Commission (CMC) must review the use of the public nuisance provisions.
The review and report preparation are a function of the CMC for the Crime
and Misconduct Commission Act 2001. During the course of the
preparation of the report the CMC must consult with the Minister, and
upon completion, give a copy to the Speaker for tabling in the Legislative
Assembly.
For the purposes of this section, "public nuisance provisions" means
section 7AA of the Vagrants, Gaming and Other Offences Act 1931 as in
force before the commencement of this Bill, and section 6.
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Summary Offences Bill 2004
Begging
Clause 8 is intended to deter the practice of persons in public places
begging for money, goods or soliciting donations. Additionally, it applies
to causing, procuring or encouraging a child to do the same. People who
loiter in public places in order to beg money or goods, such as cigarettes,
from passers-by often choose `soft' targets such as women or elderly
persons who are more likely to be intimidated and acquiesce. This type of
conduct is unacceptable.
Conversely, it is recognised that charities rely on funds collected from the
general public and they should continue to be allowed to do so, provided
the requisite permit has been obtained by a charity registered under the
Collections Act 1966. Similarly, persons who have been authorised by a
local government to busk in a public place are also to be exempt.
Wilful exposure
Clause 9 creates a clear differentiation between situations where a person
wilfully exposes himself or herself for the purpose of urination and
attempts to find a place out of public view for that purpose, as opposed to
those persons who expose themselves for shock value or for sexual
gratification. Consequently, where a person, without reasonable excuse,
urinates in public, a maximum penalty of 2 penalty units will apply. It is
intended that this simpliciter portion of the offence will apply where a
person intends to urinate out of public view but through circumstances at
the time is viewed by a member of the public. A circumstance of
aggravation carrying a maximum penalty of 40 penalty units or 1 year
imprisonment will apply where a person commits the offence so as to
offend or embarrass another person. Instances of this nature would include
a person who urinates in the full view of members of the public, e.g.
against a building in the Queen Street Mall, or a person who exposes
himself or herself to a member of the public for the purposes of shocking
that member of the public or for the purposes of sexual gratification.
Being drunk in a public place
Clause 10 creates the offence of being drunk in a public place. This clause
replaces section 164 of the Liquor Act 1992.
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Summary Offences Bill 2004
Division 2 - Offences involving presence on property
Trespass
Clause 11(1) creates an offence for a person to unlawfully enter or remain
in a dwelling or a yard around a dwelling. Subclause (2) creates an offence
to unlawfully enter or remain in the yard of, or a place used for business or
commercial purpose, or a place the person is not permitted to enter. The
clause is essentially a trespass provision and is a pre-emptive measure
against offences such as burglary. However, the provision does not rely on
an intent to commit an offence within the property entered.
It is to be noted that the clause, by virtue of the definition of "yard" in the
Dictionary to the Bill, applies to both dwelling houses and business
premises. In the case of a dwelling house it is not necessary for the yard to
be fenced. It is sufficient that there is some form of indication of the
boundary around the yard of the dwelling. This may amount to a garden
bed or simply the fencing of adjoining blocks may indicate the boundaries
of an unfenced yard.
Additionally, should a building not have a yard surrounding it but rather
border onto a footpath and against adjoining buildings, the provisions of
clause 11 apply insofar as unlawful entry to the building is concerned.
Clause 11 also applies in the case of a place, for example, a storage area not
containing a building, which is fenced off to prevent unlawful entry.
Persons unlawfully gathering in or on a building or structure
Clause 12 creates an offence for a person, together with another or others,
to unlawfully enter or remain in any part of a public or private building or
structure or any land occupied or used in connection with the building or
structure. It is designed to apply to demonstrations or sit-ins. It offers
protection when a business or government property is unlawfully occupied.
The clause is to apply even though the persons may have entered the
building or structure or associated land, lawfully. Once the licence the
persons may have had to enter, e.g., to make a genuine enquiry, is revoked,
the persons commit an offence by remaining in or on the building or
structure or its land. If the initial entry is unlawful, e.g., entry is made to
occupy a portion of a building for the purpose of a protest, then the offence
is committed from that initial entry.
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Summary Offences Bill 2004
The provisions of the Bill relating to public nuisance or other offences such
as wilful exposure apply as though the building or structure or associated
land were a public place.
Unlawfully entering farming land, etc.
Clause 13(1) creates an offence for a person to unlawfully enter or remain
on land used for agricultural or horticultural purposes or for grazing or
animal husbandry. The provision will apply, for example, where a person,
without lawful permission, enters or remains on land for the purposes of
shooting or camping on that land. However, the entry must be unlawful as
defined in the Dictionary. A person who enters onto grazing land with
innocent intent and by mistake because the land borders a highway and is
not fenced would not commit an offence.
Subsection (2) creates an offence of unlawfully opening and leaving open a
gate, fence or other barrier enclosing land used for agricultural or
horticultural purposes or for grazing or animal husbandry.
Unregulated high-risk activities
Clause 14 creates an offence for a person to unlawfully -
· parachute or hand-glide onto or from a building or structure;
· BASE-jump or hand-glide from a building or structure;
· climb up or down the outside of a building or structure; or
· abseil from a building or structure.
However, it is not an offence for a person to commit an act proscribed in
subsection (1) if the building or structure has been purpose built for that
particular act or the act is done as a stunt as part of a person's employment
in the movie or television industry. In the latter case, the permission of the
owner of the building or structure must be first obtained. Additionally, the
subsection declares that a person cleaning, maintaining or repairing a
building or structure does not commit an offence by climbing up or down
that building or structure.
Subsection (3) enables the court, in addition to any other penalty it may
impose, to order the person to pay the costs of rescuing, or attempting to
rescue, the person who has been found guilty of, or who has pleaded guilty
to, an offence contained in subsection (1).
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Summary Offences Bill 2004
Division 3 - Possession offences
Possession of implement in relation to particular offences
Clause 15 creates an offence for a person to possess an implement that has
been, is being, or is to be used for burglary of a dwelling, the unlawful
entry of a place, the unlawful entry of a motor vehicle with intent to
commit an indictable offence, stealing or unlawfully using a vehicle, to
unlawfully injure a person, or to unlawfully damage property.
A person possessing lock picks, an electronic car door lock scanner, or a
jemmy in other than easily explainable circumstances, e.g., a locksmith,
carpenter, or a person undertaking home renovations, may warrant the
suspicion of police that the person may intend to used the equipment for a
burglary or vehicle theft. Obviously, the suspicion held by police must be
reasonable and therefore will be dependent on the circumstances under
which the person is found with the items. For example, a person holding a
scanner while standing near a vehicle parked in a car park will raise
suspicion that the person intends to break into the vehicle.
A person who carries an iron bar beside the driver's seat of his or her
vehicle with the intent that it be used to assault another driver who may
annoy the person, will be guilty of an offence. Additionally, the clause will
apply to a member of a gang who carries an implement for the purposes of
using it to assault other persons. Clearly, the clause will also apply in
potential domestic violence or neighbourhood disputes. However, the
clause will not prevent a person having possession of an implement within
the person's home for the purposes of self defence during a burglary on that
home.
If the person has a legitimate reason for possessing these items, they may
easily explain this to police thus alleviating the need for any charge to be
laid. Additionally, subsection (2) provides a defence to a charge for the
person to prove that the person did not know the implement had been, or
was to be, used in an offence.
Unlawful possession of suspected stolen property
Clause 16 creates an offence for a person to unlawfully possess a thing that
is reasonably suspected of having been stolen or unlawfully obtained.
This clause is complementary to the more serious offences of stealing and
receiving contained in the Criminal Code but may be used in instances
where the lawful owner of property cannot be located but the
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Summary Offences Bill 2004
circumstances in which a person has possession of property can lead to the
conclusion that it has been stolen or unlawfully obtained. By way of
example, a financially destitute person may be found in possession of
thousands of dollars or new leather goods and be unable or reluctant to
offer police with an explanation as to how he or she came lawfully by the
goods. Where an owner cannot be found due to the fact that the goods may,
for example, have been stolen interstate, police may charge the person
under this provision.
Graffiti instrument
Clause 17 creates an offence for a person to possess a graffiti instrument
that -
· is reasonably suspected of having been used for graffiti;
· is being used for graffiti; or
· is reasonably suspected of being about to be used for graffiti.
Additionally, a court is empowered by subclause (2) to order the offender
pay compensation for property damaged by unlawful graffiti, or to order
the offender to remove graffiti from damaged property, irrespective of
whether the offender was responsible for unlawful graffiti at the location to
which the order relates.
Division 4 - Offences relating to children or minors
Particular body piercing of minor prohibited
Clause 18 creates an offence for a person, who in conducting a business
transaction, performs body piercing on any part of the external genitalia, or
nipples, of a male or female child. The penalty is increased if the child is
intellectually impaired or their decision-making capacity has been reduced
due to the consumption of alcohol or a drug.
It is not a defence to a prosecution to claim that the child, or the parent or
guardian of the child consented to the body piercing.
For the purpose of this section, "body piercing" means the process by
which a person's skin or mucous membrane is penetrated by a sharp
instrument for the purpose of implanting jewellery or other foreign
material. Foreign material can include a ring, bar, pin or stud.
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Tattooing minor prohibited
Clause 19 creates an offence for anyone to perform any form of tattooing
on a minor.
For the purpose of this section, "tattooing" means any process by which a
person's skin is penetrated and coloured pigments inserted to create a
permanent mark, pattern or design on the skin. Also included, is any
process that creates a semipermanent mark on the skin of a minor, which
includes the processes of cosmetic tattooing and applying semipermanent
make-up.
Division 5 - Other offences
Preventing public meetings
Clause 20 creates an offence for a person to intentionally prevent or
attempt to prevent the holding of a public meeting. Action of this type may
be caused by means of amplified noise such that persons attempting to
speak at a meeting are `drowned out' or by persons attempting to force
their way into the place where the public meeting is being held in order to
prevent the meeting continuing. Clearly, circumstances will dictate
whether action is unlawful. For example, jeering at an open air meeting in
the Roma Street Forum may constitute nothing more than an expression of
freedom of speech.
False advertisements etc., about births, deaths, marriages or
employment
Clause 21 creates an offence for any person to knowingly publish a false
advertisement or notice in a newspaper, radio or television station or on the
internet. The clause provides 6 things which constitute a false
advertisement or notice. For example, it will remain an offence to publish
a false advertisement concerning the death of a person, albeit the
advertisement may be placed as a joke on the part of the offender.
Imposition
Clause 22 creates an offence for a person to, by any false or fraudulent
representation either orally or in writing or by means of dress, apparel or
otherwise, fraudulently seeks to obtain money or other benefit or
advantage. The clause will apply to persons obtaining money from others,
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particularly the elderly, by false representations, such as fraudulently
representing themselves to be collecting money for a bona fide
organisation. The provision will deal with not only these types of
misrepresentations, but will also extend to a person obtaining an advantage
by an imposition, e.g., obtaining employment as a university lecturer by
purporting to have a qualification the person does not.
Sale of potentially harmful things
Clause 23 prohibits the sale or supply of a potentially harmful thing to
another person if the seller knows or believes, on reasonable grounds that
the other person intends to ingest or inhale the thing or intends to sell or
supply the thing to another person for inhalation or ingestion.
For the purposes of interpreting this section, a shopkeeper whom, for
instance, keeps containers of methylated spirits in refrigerated machinery
without a legitimate need to do so, may be taken as knowing that the
methylated spirits is intended for ingestion by a person. Therefore, to sell
that methylated spirits to a person may constitute an offence under this
provision.
The section does not apply to things that are intended by the manufacturer
to be ingested or inhaled, e.g., medications or tobacco products.
The Anti-Discrimination Act 1991, section 46, does not apply to this
provision.
Throwing things at a sporting event
Clause 24 creates the offence of throwing any object at a sporting event that
may injure a person, damage property or disrupt the event. For example, a
person who throws a drink can into a crowd or onto a sporting field,
thereby risking injury to another person or disruption of the event is guilty
of an offence. Additionally, a person who throws a drink can or rock at the
glass window of a commentator's box thereby risking breaking the glass
will also commit an offence.
The clause contains two exemptions;
· it does not apply to a participant in the sporting event who throws or
propels an object in the legitimate course of the event; and
· it does not apply to a spectator who throws an object subject of the
particular event back into the field of play in a manner not intended to
injure a person or damage property.
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Summary Offences Bill 2004
Use of vehicles
Clause 25 provides that a person must not unlawfully use a vehicle without
the consent of the person in lawful possession of the vehicle. The person in
lawful possession may be the owner or a person to whom the owner has
lent the vehicle. The provision would also include circumstances where a
person has been given a limited licence to use the vehicle and uses it
outside the terms of that licence.
The clause also applies where a person has a vehicle in the person's
possession without the consent of the person in lawful possession of it
where there is an intent to temporarily or permanently deprive the person in
lawful possession of it, of the vehicle.
Part 3 -- Procedural Provisions
Offences are simple offences
Clause 26 provides that all offences in the Bill are simple offences and that
a proceeding for an offence is a summary proceeding under the Justices Act
1886.
Forfeiture
Clause 27 provides that if a court finds a person guilty of an offence against
clauses 15, 16, or 17, then the object or thing to which the offence relates
may be forfeited to the State.
A forfeited object is to be disposed of under the provisions of chapter 11,
part 3 of the Police Powers and Responsibilities Act 2000.
Evidentiary provision
During a proceeding for a charge of an offence, clause 28 provides that a
statement in a charge that a place is a place to which a provision of this Bill
applies, is evidence that the place is what it is claimed to be.
Additionally, in a proceeding concerning unlawful possession of property,
it is not necessary to prove that the police officer who starts the proceeding,
knew that anything had recently been stolen or unlawfully obtained, or
indeed that anything had been stolen or unlawfully obtained, if the
circumstances in which the property had been found gives risk to a
reasonable suspicion that the property had been stolen or unlawfully
obtained.
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Summary Offences Bill 2004
Part 4 -- Repeal and Amendments
Acts repealed
Clause 29 provides that the Vagrants, Gaming and Other Offences Act 1931
is repealed.
Other Acts amended
Clause 30 provides for the Acts mentioned in Schedule 1 to be amended.
Whilst the majority of these amendments concern the omission from a
number of Acts of reference to the Vagrants, Gaming and Other Offences
Act 1931 and the insertion of the Summary Offences Act 2004, the
Suppression of Gambling Act 1895 is to be amended to transfer to it those
gaming offences currently in the Vagrants Gaming and Other Offences Act
1931.
The Animals Care and Protection Act 2001 is amended so that the
Schedule, definition of a "public place", paragraph (b), `Act.39' will
become `Act.9'.
The Classification of Computer Games and Images Act 1995 will be
amended so that all references to the Vagrants, Gaming and Other Offences
Act 1931 are omitted (sections 58(4), 59(5) and 66(1)).
The Classification of Films Act 1991 is amended so that all references to
the Vagrants, Gaming and Other Offences Act 1931 are omitted (sections
58(2)(b) and 64(1)).
The Classification of Publications Act 1991 is amended so that all
references to the Vagrants, Gaming and Other Offences Act 1931 are
omitted (sections 36 and 37(3)(b)).
The Introduction Agents Act 2001 is amended so that the Schedule 2,
definition "disqualifying offence", paragraph (b) `its repeal' will be
omitted and `1 February 1993' inserted.
The fifth dot point of section 25(1) the Juvenile Justice Act 1992 is
amended so that the Vagrants, Gaming and Other Offences Act 1931 will
be omitted and replaced with the Summary Offences Act 2004. A similar
amendment will be made to section 255(1)(e). Moreover, in Part 11, after
division 3 an insertion of division 4 (Transitional provisions for the
Summary Offences Act 2004) will provide that despite the repeal of the
Vagrants, Gaming and Other Offences Act 1931, any arrestable offence
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Summary Offences Bill 2004
against that Act continues to be an identifying particular offence for section
25 and 255 of this Act.
The Liquor Act 1992 is amended so that section 164(2) (drunk in a public
place) is omitted.
Amendments to the Police Powers and Responsibilities Act 2000 will
include the insertion of a new section 391A (Safeguards for declared
offences under Summary Offences Act 2004).
This provision outlines the steps that a police officer, who reasonably
suspects a person has committed a declared offence, must take before
charging a person with that declared offence. The police officer must give
the person the opportunity to explain--
· if the offence involves the person's presence at a place (clause
11)--why the person was at the relevant place; or
· if the offence involves entering a place (clauses 12 or 13(1))--why the
person entered the relevant place; or
· if the offence involves doing something that is an offence against
clause 14 --why the person did the relevant thing; or
· if the offence involves possession of a graffiti instrument or an
implement (clauses 15, 16 or 18)--why the person was in possession
of the graffiti instrument or implement at the relevant time; or
· if the offence involves control or possession of a thing that is
reasonably suspected of having been stolen or unlawfully obtained
(clause 17)--how the person came to have control or possession of the
thing.
Should the person--
· fail to give an explanation; or
· give an explanation the police officer is not satisfied is a reasonable
explanation, e.g. stating that a thing was purchased at a pub from an
unknown person; or
· behave in a manner that an opportunity can not be given for the person
to give an explanation, e.g., the person runs when confronted by the
police officer,
the police officer is entitled to start a proceeding against a person for the
declared offence.
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Summary Offences Bill 2004
Additionally, after section 482, Part 4 - Transitional Provisions for
Summary Offences Act 2004 will be inserted. Section 483 will make
provision that despite the repeal of the Vagrants, Gaming and Other
Offences Act 1931, an offence against that Act continues to be an
identifying particulars offence for this Act.
The eighth dot point of Schedule 4, definition of "identifying particulars
offence", paragraph (b) will be amended by omitting the Vagrants, Gaming
and Other Offences Act 1931 and replacing it with the Summary Offences
Act 2004. Similarly, in the Schedule 4, definition of "public place",
paragraph (d), `Act.148' will be omitted and `Act' inserted.
The Racing Act 2002 is amended by omitting section 320(2)(c) and (d), and
section 320(2)(e) will be renumbered as 320(2)(c).
The Transport Operations (Road Use Management) Act 1995 will be
amended so that section 138(8)(b) is repealed, paragraphs (c) and (d) are
renumbered to (d) and (e) respectively and a new paragraph (c) refers to
disqualifying offences under the provisions of the Classification of
Publications Act 1992.
Schedule 2 of the Bill contains the Dictionary to the Bill.
© State of Queensland 2004