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Find out more about: Protest Actions & The Law (Australia) | Direct Action
Find out more about: Protest Actions & The Law (Australia) | Direct Action
It's a legal axiom that we know the law -every section of every statue.
I have used information from a number of legal websites, from statutes, and from commentaries by Australian lawyers to create this Web page. It is intended to give activists context when planning campaigns.
I am indebted to those sources and one day will get time to cite them all.
Obstructing Police Officer
Obstruct Police NSW
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Obstruct Police...ACT Criminal Code Act 1995 (Commonwealth) s 149.
Max penalty:
ACT: 2 years imprisonment, a fine of up to $32,000 or both.
Commonwealth: 2 years imprisonment.
In the ACT and in the resist police Commonwealth, if you obstruct, hinder, intimidate or resist a public official in the performance of their duties, you may be guilty of an offence.
A public official includes a police officer, a member of the Australian Federal Police or the Parliamentary Protective Service
Max penalty:
ACT: 2 years imprisonment, a fine of up to $32,000 or both.
Commonwealth: 2 years imprisonment.
In the ACT and in the resist police Commonwealth, if you obstruct, hinder, intimidate or resist a public official in the performance of their duties, you may be guilty of an offence.
A public official includes a police officer, a member of the Australian Federal Police or the Parliamentary Protective Service
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Offensive Behaviour
☞ ACT |
Offensive Behaviour...ACT Crimes Act 1900 ss 392; Public Order (Protection of Persons and Property) Act 1971 (Commonwealth) s12(2)(b)).
Max penalty:
A fine of up to $3,200
In the ACT, if you behave in a riotous, indecent, offensive or insulting manner, in, near, or within the view of a public place, you may be guilty of an offence
Max penalty:
A fine of up to $3,200
In the ACT, if you behave in a riotous, indecent, offensive or insulting manner, in, near, or within the view of a public place, you may be guilty of an offence
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Obstruction
☞ ACT |
Obstruction Causing Injury etc. (ACT)... Crimes Act 1990 ss.27-28
Max penalty:
- Up to 10 years prison for endangering life or causing GBH;
- 5 years for endangering health, safety or physical well-being
A person who interferes with any conveyance or transport facility, public utility service or a prescribed traffic control device in circumstances likely to endanger human life, cause a person grievous bodily harm, or in circumstances dangerous to the health, safety or physical well being of another person, is guilty of an offence.
Max penalty:
- Up to 10 years prison for endangering life or causing GBH;
- 5 years for endangering health, safety or physical well-being
A person who interferes with any conveyance or transport facility, public utility service or a prescribed traffic control device in circumstances likely to endanger human life, cause a person grievous bodily harm, or in circumstances dangerous to the health, safety or physical well being of another person, is guilty of an offence.
Obstruction (ACT)... Public Order (Protection of Persons and Property) Act 1971 (Commonwealth)s.9; Crimes Act 1990 s.154
Max penalty:
A fine of up to $4,400.
In the ACT and in the Commonwealth, if you engage in unreasonable obstruction while you take part in an assembly, you may be guilty of an offence
Unreasonable obstruction is defined as: an act or thing done by a person that constitutes, or contributes to, an obstruction of, or interference with, the exercise or enjoyment by other persons of their lawful rights or privileges (including rights of passage along the public streets) where, having regard to all the circumstances of the obstruction or interference, including its place, time, duration and nature, it constitutes an unreasonable obstruction or interference (POA Act s4).
Max penalty:
A fine of up to $4,400.
In the ACT and in the Commonwealth, if you engage in unreasonable obstruction while you take part in an assembly, you may be guilty of an offence
Unreasonable obstruction is defined as: an act or thing done by a person that constitutes, or contributes to, an obstruction of, or interference with, the exercise or enjoyment by other persons of their lawful rights or privileges (including rights of passage along the public streets) where, having regard to all the circumstances of the obstruction or interference, including its place, time, duration and nature, it constitutes an unreasonable obstruction or interference (POA Act s4).
Obstruction (ACT)... Public Order (Protection of Persons and Property) Act 1971 (Commonwealth)s.9; etc
Max penalty:
Maximum penalties in brackets below.
Government Premises ($4,400) - Public Order (Protection of Persons and Property) Act 1971 (Commonwealth) s.12)....etc
A person commits an offence if they engage in unreasonable obstruction in relation to the passage of persons or vehicles into, out of, or otherwise in relation to the use of government premises
Emergency vehicles ($3,200) - Road Regs (ACT) s.77.
If a driver is in the path of an approaching police or other Emergency vehicle that is displaying a flashing light or sounding an alarm, they must move out of the path of the vehicle. Failure to do so is an offence.
Obstruct vehicles or pedestrians ($3,200) -Road Transport General) Act 1999 (ACT)
• Obstruct pedestrian on marked foot crossing (s65)
• Unreasonably obstruct driver/pedestrian (s125)
• Stop near obstruction so as to obstruct traffic (s257)
• Obstruct access to ramp/path/passageway (s268)
• Park so as to obstruct vehicles/pedestrians (ss.208 and 281).
• Pedestrian obstruct driver’s/other pedestrian’s path (s380)
Max penalty:
Maximum penalties in brackets below.
A person commits an offence if they engage in unreasonable obstruction in relation to the passage of persons or vehicles into, out of, or otherwise in relation to the use of government premises
If a driver is in the path of an approaching police or other Emergency vehicle that is displaying a flashing light or sounding an alarm, they must move out of the path of the vehicle. Failure to do so is an offence.
• Obstruct pedestrian on marked foot crossing (s65)
• Unreasonably obstruct driver/pedestrian (s125)
• Stop near obstruction so as to obstruct traffic (s257)
• Obstruct access to ramp/path/passageway (s268)
• Park so as to obstruct vehicles/pedestrians (ss.208 and 281).
• Pedestrian obstruct driver’s/other pedestrian’s path (s380)
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Climbing Buildings
☞ NSW |
Risk Safety by Climbing...NSW Summary Offences Act 1988 - S.8A
Max penalty:
10 Penalty points and/or 3 months
S.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.
Max penalty:
10 Penalty points and/or 3 months
S.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.
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Intimidation or Annoyance
☞ NSW |
Intimidation or Annoyance...NSW CRIMES ACT 1900 - S.545B
Max penalty:
Local Court,imprisonment for 2 years and/or a fine of 50 penalty units.
Intimidation or annoyance by violence or otherwise
(1) Whosoever--
(a) with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing, or
(b) in consequence of such other person having done any act which the other person had a legal right to do or having abstained from doing any act which that other person had a legal right to abstain from doing,
wrongfully and without legal authority--
(i) uses violence or intimidation to or toward such other person [...]
is liable, on conviction before the Local Court, to imprisonment for 2 years, or to a fine of 50 penalty units, or both.
[...]
(2) In this section--
"Intimidation" means the causing of a reasonable apprehension of injury to a person or to the person's spouse, de facto partner, child or dependant, or of violence or damage to any person or property, and
"intimidate" has a corresponding meaning.
"Injury" includes any injury to a person in respect of the person's property, business, occupation, employment, or other source of income, and also includes any actionable wrong of any nature.
Max penalty:
Local Court,imprisonment for 2 years and/or a fine of 50 penalty units.
Intimidation or annoyance by violence or otherwise
(1) Whosoever--
(a) with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing, or
(b) in consequence of such other person having done any act which the other person had a legal right to do or having abstained from doing any act which that other person had a legal right to abstain from doing,
wrongfully and without legal authority--
(i) uses violence or intimidation to or toward such other person [...]
is liable, on conviction before the Local Court, to imprisonment for 2 years, or to a fine of 50 penalty units, or both.
[...]
(2) In this section--
"Intimidation" means the causing of a reasonable apprehension of injury to a person or to the person's spouse, de facto partner, child or dependant, or of violence or damage to any person or property, and
"intimidate" has a corresponding meaning.
"Injury" includes any injury to a person in respect of the person's property, business, occupation, employment, or other source of income, and also includes any actionable wrong of any nature.
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Interfering with Infrastucture
Damage or Obstruct Railway Vehicle (ACT)...Crimes Act 1900 s.144
Max penalty:
Fine of up to $32,000,imprisonment for 10 years, or both
A person who, with intent to obstruct, damage or destroy any rail vehicle:
a. deposits any article or material on or across a railway; or
b. removes or displaces any rail, sleeper or other thing belonging to a railway; or
c. moves or diverts, or fails to move or divert, any point or other machinery belonging to a railway; or
d. displays, masks or removes any signal or light on or near a railway;
may be guilty of an offence
Max penalty:
Fine of up to $32,000,imprisonment for 10 years, or both
A person who, with intent to obstruct, damage or destroy any rail vehicle:
a. deposits any article or material on or across a railway; or
b. removes or displaces any rail, sleeper or other thing belonging to a railway; or
c. moves or diverts, or fails to move or divert, any point or other machinery belonging to a railway; or
d. displays, masks or removes any signal or light on or near a railway;
may be guilty of an offence
Obstruct a Railway (ACT)...Crimes Act 1900 s.145
Max penalty:
Fine of up to $32,000,imprisonment for 10 years, or both
Any person who by an unlawful act, an omission or neglect, obstructs or causes to obstruct a railway may be guilty of an offence
Max penalty:
Fine of up to $32,000,imprisonment for 10 years, or both
Any person who by an unlawful act, an omission or neglect, obstructs or causes to obstruct a railway may be guilty of an offence
Hindering Workings of a Mine (ACT)...Crimes Act 1900 s.141
Max penalty:
Fine of up to $32,000,imprisonment for 7 years, or both
A person who, with intent to hinder the working of a mine—
a. causes water to be conveyed or permitted to enter the mine or any subterraneous passage
communicating with the mine; or
b. robstructs, or otherwise interferes with any airway, waterway, drain, pit, level or shaft of the mine;
may be guilty of an offence
Max penalty:
Fine of up to $32,000,imprisonment for 7 years, or both
A person who, with intent to hinder the working of a mine—
a. causes water to be conveyed or permitted to enter the mine or any subterraneous passage
communicating with the mine; or
b. robstructs, or otherwise interferes with any airway, waterway, drain, pit, level or shaft of the mine;
may be guilty of an offence
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Damaging Property
Damaging Commonwealth Property...Criminal Code Act 1995 - S.132.8A
Max penalty:
10 years prison
132.8A Damaging Commonwealth property
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to, or the destruction of, property; and
(c) the property belongs to a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(2) Absolute liability applies to paragraph (1)(c).
Max penalty:
10 years prison
132.8A Damaging Commonwealth property
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in damage to, or the destruction of, property; and
(c) the property belongs to a Commonwealth entity.
Penalty: Imprisonment for 10 years.
(2) Absolute liability applies to paragraph (1)(c).
Graffiti...WA Graffiti and Vandalism Act 2016 - S.5
Max penalty:
• 2 years and $24,000 fine
Min Penalty:
• for an adult offender is a community based order.
• for a child offender is a youth community based order.
S.5 Damaging property by graffiti
A person must not destroy, damage or deface the property of another person by graffiti without that other person's consent.
Penalty: a fine of $24,000 and imprisonment for 2 years, but the minimum penalty:
for an adult offender is a community based order.
for a child offender is a youth community based order.
S.6. Possessing thing with intent to apply graffiti
(1) A person must not be in possession of a thing with the intention of using it to destroy, damage or deface property by applying graffiti.
Penalty: a fine of $6,000
A person is presumed to have an intention referred to if this person is in possession of the thing in circumstances that give rise to a reasonable suspicion that the person has the intention, unless the contrary is proved.
S.7. Selling graffiti implement to child
[...]
For the purposes of the Graffiti Vandalism Act, graffiti implement means any of these:
a can of spray paint
a pen or marker, or a similar implement that–
has a tip over 6 mm wide; and
contains a fluid that is not water soluble and that is capable of marking a surface
Section 8: Cost of cleaning graffiti
(1) This section applies whether the graffiti:
is visible to the public or not; or
is applied to public property or private property
(2) A court that convicts a person of an offence under section 5 that involves destroying, damaging or defacing property to which this Act applies may order the offender:
to take remedial action to restore the property to the same state as it was in the before the offence or to a state specified in the order; or
to pay another person to take remedial action to restore the property to the same state as it was in before the offence or to a state specified in that order.
Max penalty:
• 2 years and $24,000 fine
Min Penalty:
• for an adult offender is a community based order.
• for a child offender is a youth community based order.
S.5 Damaging property by graffiti
A person must not destroy, damage or deface the property of another person by graffiti without that other person's consent.
Penalty: a fine of $24,000 and imprisonment for 2 years, but the minimum penalty:
for an adult offender is a community based order.
for a child offender is a youth community based order.
S.6. Possessing thing with intent to apply graffiti
(1) A person must not be in possession of a thing with the intention of using it to destroy, damage or deface property by applying graffiti.
Penalty: a fine of $6,000
A person is presumed to have an intention referred to if this person is in possession of the thing in circumstances that give rise to a reasonable suspicion that the person has the intention, unless the contrary is proved.
S.7. Selling graffiti implement to child
[...]
For the purposes of the Graffiti Vandalism Act, graffiti implement means any of these:
a can of spray paint
a pen or marker, or a similar implement that–
has a tip over 6 mm wide; and
contains a fluid that is not water soluble and that is capable of marking a surface
Section 8: Cost of cleaning graffiti
(1) This section applies whether the graffiti:
is visible to the public or not; or
is applied to public property or private property
(2) A court that convicts a person of an offence under section 5 that involves destroying, damaging or defacing property to which this Act applies may order the offender:
to take remedial action to restore the property to the same state as it was in the before the offence or to a state specified in the order; or
to pay another person to take remedial action to restore the property to the same state as it was in before the offence or to a state specified in that order.
Deface Property & Posting Bills(ACT)...Crimes Act 1900 S.119
Max penalty:
Fine of up to $8,000, imprisonment for 6 months or both.
In the ACT, you may commit and defacing an offence if you affix a property placard or paper, or make a mark with chalk, paint or any other material on private premises or public property and do not have consent of the occupier, owner, or person in charge of the premises
Max penalty:
Fine of up to $8,000, imprisonment for 6 months or both.
In the ACT, you may commit and defacing an offence if you affix a property placard or paper, or make a mark with chalk, paint or any other material on private premises or public property and do not have consent of the occupier, owner, or person in charge of the premises
Damage Property (Criminal Damage)...WA Criminal Code Act 1913 - S.444
Max penalty:
• Life imprisonment, if by fire
• 10 years
S.444. Criminal damage
(1A) In this section —
circumstances of aggravation has the meaning given in section 221.
(1) Any person who wilfully and unlawfully destroys or damages any property is guilty of a crime and is liable —
(a) if the property is destroyed or damaged by fire, to life imprisonment; or
(b) if the property is not destroyed or damaged by fire, to imprisonment for 10 years or, if the offence is committed in circumstances of aggravation or in circumstances of racial aggravation, to imprisonment for 14 years.
S.445. Alternative offence:
(1) Summary conviction penalty: for an offence where —
(a) in a case where subsection (1)(b) applies; and
(b) the amount of the injury done does not exceed $50 000,imprisonment for 3 years and a fine of $36 000.
(2) Property that is capable of being destroyed or damaged by fire includes vegetation.
Max penalty:
• Life imprisonment, if by fire
• 10 years
S.444. Criminal damage
(1A) In this section —
circumstances of aggravation has the meaning given in section 221.
(1) Any person who wilfully and unlawfully destroys or damages any property is guilty of a crime and is liable —
(a) if the property is destroyed or damaged by fire, to life imprisonment; or
(b) if the property is not destroyed or damaged by fire, to imprisonment for 10 years or, if the offence is committed in circumstances of aggravation or in circumstances of racial aggravation, to imprisonment for 14 years.
S.445. Alternative offence:
(1) Summary conviction penalty: for an offence where —
(a) in a case where subsection (1)(b) applies; and
(b) the amount of the injury done does not exceed $50 000,imprisonment for 3 years and a fine of $36 000.
(2) Property that is capable of being destroyed or damaged by fire includes vegetation.
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Unlawful Assembly
☞ ACT |
Assembly Unlawful Assembly ...ACT Public Order (Protection of Persons and Property) Act 1971 (Commonwealth) ss.6-9
Max penalty s.6:
• Fine of up to $4,440.
• Failure to comply with direction: 6 months imprisonment.
Max penalty s.8:
• Fine of up to $4,440 or imprisonment up to months, or both.
Max penalty s.9:
• Fine of up to $4,440.
Within the Commonwealth and in the ACT, an unlawful assembly is when 3 or more people get together with a common purpose (for example, a protest or demonstration) and conduct themselves in a manner that gives rise to a reasonable apprehension that the assembly will be carried on in a manner involving unlawful physical violence to persons or unlawful damage to property (POA Act s6).
If you engage in this conduct you may be guilty of an offence. If an assembly conducted in the above manner involves 12 people or more, those people are given a direction to disperse and the assembly continues for 15 more minutes after given the direction, those participants may be guilty of a more serious offence. (POA Act s8)
A person who, in a Territory or on Commonwealth premises, while taking part in an assembly, engages in unreasonable obstruction commits an offence (POA Act s9).
Max penalty s.6:
• Fine of up to $4,440.
• Failure to comply with direction: 6 months imprisonment.
Max penalty s.8:
• Fine of up to $4,440 or imprisonment up to months, or both.
Max penalty s.9:
• Fine of up to $4,440.
Within the Commonwealth and in the ACT, an unlawful assembly is when 3 or more people get together with a common purpose (for example, a protest or demonstration) and conduct themselves in a manner that gives rise to a reasonable apprehension that the assembly will be carried on in a manner involving unlawful physical violence to persons or unlawful damage to property (POA Act s6).
If you engage in this conduct you may be guilty of an offence. If an assembly conducted in the above manner involves 12 people or more, those people are given a direction to disperse and the assembly continues for 15 more minutes after given the direction, those participants may be guilty of a more serious offence. (POA Act s8)
A person who, in a Territory or on Commonwealth premises, while taking part in an assembly, engages in unreasonable obstruction commits an offence (POA Act s9).
Unlawful Assembly Causing Harm or Damage ...ACT Public Order (Protection of Persons and Property) Act 1971 (Commonwealth) s.7
Max penalty:
• Physical violence or property damage: 12 months imprisonment
• Damage to property to an extent exceeding $1,500: 3 years imprisonment.
• Causing actual bodily harm: 5 years imprisonment.
A person commits an offence if they are participating in an assembly and intentionally do an act of physical violence to another person, or an act that results in damage to property.
If a person partaking in an assembly intentionally causes actual bodily harm to another person or damage to property, amounting to $1,500 or more, they may be guilty of a more serious offence
Max penalty:
• Physical violence or property damage: 12 months imprisonment
• Damage to property to an extent exceeding $1,500: 3 years imprisonment.
• Causing actual bodily harm: 5 years imprisonment.
A person commits an offence if they are participating in an assembly and intentionally do an act of physical violence to another person, or an act that results in damage to property.
If a person partaking in an assembly intentionally causes actual bodily harm to another person or damage to property, amounting to $1,500 or more, they may be guilty of a more serious offence
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Enter Enclosed Land
☞ NSW |
Enter Enclosed Land...Inclosed Lands Protection Act 1901 No 33 - S.4
Max penalty:
• 5 penalty units; 10 penalty units in the case of prescribed premises.
• For Aggravated offence (see S.4A), 50 penalty points
• For incitement to commit Aggravated Offence on Agriculrtural Land, 12 months and/or 100 penalty points
Inclosed lands means—
(a) prescribed premises[school, childcare service, hospital property], or
(b) any land, either public or private, inclosed or surrounded by any fence, wall or other erection, or partly by a fence, wall or other erection and partly by a canal or by some natural feature such as a river or cliff by which its boundaries may be known or recognised, including the whole or part of any building or structure and any land occupied or used in connection with the whole or part of any building or structure.
S.4 Unlawful entry on inclosed lands
(1) Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty not exceeding—
(a) 10 penalty units in the case of prescribed premises, or
(b) 5 penalty units in any other case.
[...]
(5) Proof of reasonable excuse under this section lies on the person charged with the offence.
S.4A Offensive conduct while on inclosed lands
(1) Any person, who remains upon the inclosed lands of another person after being requested by the owner or occupier or the person apparently in charge of those lands to leave those lands and while remaining upon those lands conducts himself or herself in such a manner as would be regarded by reasonable persons as being, in all the circumstances, offensive, is liable to a penalty not exceeding—
(a) 20 penalty units in the case of prescribed premises, or
(b) 10 penalty units in any other case.
(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.
S.4B Aggravated unlawful entry on inclosed lands
(1) A person is guilty of an offence under this section if the person commits an offence under section 4 in relation to inclosed lands on which any business or undertaking is conducted and, while on those lands—
(a) interferes with, or attempts or intends to interfere with, the conduct of the business or undertaking, or [...]
Maximum penalty—
[...]
(b) for an offence that occurs on land other than agricultural land—50 penalty units.
(2) If, on the trial of a person for an offence under this section, the court is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 4, the court may find the accused not guilty of the offence charged but guilty of an offence under section 4, and the accused is liable to punishment accordingly.
(3) Proof of reasonable excuse under this section lies on the person charged with the offence.
S.4C Direct, incite, counsel, procure, commission or induce aggravated unlawful entry
A person must not direct, incite, counsel, procure, commission or induce the
commission, on agricultural land, of an offence against section 4B.
Maximum penalty—100 penalty units or imprisonment for 12 months, or both.
6 Offender may be apprehended...
(1) [If you don't give your name and address on request to anyone in charge of the inclosed land, they can arrest you and give you over to the police]
Max penalty:
• 5 penalty units; 10 penalty units in the case of prescribed premises.
• For Aggravated offence (see S.4A), 50 penalty points
• For incitement to commit Aggravated Offence on Agriculrtural Land, 12 months and/or 100 penalty points
Inclosed lands means—
(a) prescribed premises[school, childcare service, hospital property], or
(b) any land, either public or private, inclosed or surrounded by any fence, wall or other erection, or partly by a fence, wall or other erection and partly by a canal or by some natural feature such as a river or cliff by which its boundaries may be known or recognised, including the whole or part of any building or structure and any land occupied or used in connection with the whole or part of any building or structure.
S.4 Unlawful entry on inclosed lands
(1) Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty not exceeding—
(a) 10 penalty units in the case of prescribed premises, or
(b) 5 penalty units in any other case.
[...]
(5) Proof of reasonable excuse under this section lies on the person charged with the offence.
S.4A Offensive conduct while on inclosed lands
(1) Any person, who remains upon the inclosed lands of another person after being requested by the owner or occupier or the person apparently in charge of those lands to leave those lands and while remaining upon those lands conducts himself or herself in such a manner as would be regarded by reasonable persons as being, in all the circumstances, offensive, is liable to a penalty not exceeding—
(a) 20 penalty units in the case of prescribed premises, or
(b) 10 penalty units in any other case.
(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.
S.4B Aggravated unlawful entry on inclosed lands
(1) A person is guilty of an offence under this section if the person commits an offence under section 4 in relation to inclosed lands on which any business or undertaking is conducted and, while on those lands—
(a) interferes with, or attempts or intends to interfere with, the conduct of the business or undertaking, or [...]
Maximum penalty—
[...]
(b) for an offence that occurs on land other than agricultural land—50 penalty units.
(2) If, on the trial of a person for an offence under this section, the court is not satisfied that the accused is guilty of the offence charged, but is satisfied that the accused is guilty of an offence under section 4, the court may find the accused not guilty of the offence charged but guilty of an offence under section 4, and the accused is liable to punishment accordingly.
(3) Proof of reasonable excuse under this section lies on the person charged with the offence.
S.4C Direct, incite, counsel, procure, commission or induce aggravated unlawful entry
A person must not direct, incite, counsel, procure, commission or induce the
commission, on agricultural land, of an offence against section 4B.
Maximum penalty—100 penalty units or imprisonment for 12 months, or both.
6 Offender may be apprehended...
(1) [If you don't give your name and address on request to anyone in charge of the inclosed land, they can arrest you and give you over to the police]
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Principal Offenders
☞ WA |
Principal offenders...WA Criminal Code Act 1913 - S.7
S.7. Principal offenders
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say —
(a) Every person who actually does the act or makes the
omission which constitutes the offence;
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) Every person who aids another person in committing the offence;
(d) Any person who counsels or procures any other person to commit the offence.
In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.
A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.
Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.
S.8. Offence committed in prosecution of common purpose
(1) When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
(2) A person is not deemed under subsection (1) to have committed the offence if, before the commission of the offence, the person —
(a) withdrew from the prosecution of the unlawful purpose; and
(b) by words or conduct, communicated the withdrawal to each other person with whom the common intention to prosecute the unlawful purpose was formed; and
(c) having so withdrawn, took all reasonable steps to prevent the commission of the offence.
S.9. Counselled offence, mode of execution immaterial
When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled, or in a different way, provided in either case that the acts constituting the offence actually committed are a probable consequence of carrying out the counsel.
In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by him.
S.10. Term used: accessory after the fact
(1) A person who, knowing that another person has committed an offence, receives or assists that other person in order to enable that other person to escape punishment is said to become an accessory after the fact to the offence.
S.7. Principal offenders
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say —
(a) Every person who actually does the act or makes the
omission which constitutes the offence;
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) Every person who aids another person in committing the offence;
(d) Any person who counsels or procures any other person to commit the offence.
In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.
A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.
Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.
S.8. Offence committed in prosecution of common purpose
(1) When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
(2) A person is not deemed under subsection (1) to have committed the offence if, before the commission of the offence, the person —
(a) withdrew from the prosecution of the unlawful purpose; and
(b) by words or conduct, communicated the withdrawal to each other person with whom the common intention to prosecute the unlawful purpose was formed; and
(c) having so withdrawn, took all reasonable steps to prevent the commission of the offence.
S.9. Counselled offence, mode of execution immaterial
When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled, or in a different way, provided in either case that the acts constituting the offence actually committed are a probable consequence of carrying out the counsel.
In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by him.
S.10. Term used: accessory after the fact
(1) A person who, knowing that another person has committed an offence, receives or assists that other person in order to enable that other person to escape punishment is said to become an accessory after the fact to the offence.
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Defence:"Emergency"
Defence:"Emergency"...WA Criminal Code Act 1913 - S.25
S.25. Emergency
(1) This section does not apply if section 32, 246, 247 or 248 applies.
(2) A person is not criminally responsible for an act done, or an omission made, in an emergency under subsection (3).
(3) A person does an act or makes an omission in an emergency
if —
(a) the person believes —
(i) circumstances of sudden or extraordinary emergency exist; and
(ii) doing the act or making the omission is a necessary response to the emergency; and
(b) the act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
NB S32: Duress, S246: Provocation, S247: Repetition of Insult, S248: Self Defence
S.25. Emergency
(1) This section does not apply if section 32, 246, 247 or 248 applies.
(2) A person is not criminally responsible for an act done, or an omission made, in an emergency under subsection (3).
(3) A person does an act or makes an omission in an emergency
if —
(a) the person believes —
(i) circumstances of sudden or extraordinary emergency exist; and
(ii) doing the act or making the omission is a necessary response to the emergency; and
(b) the act or omission is a reasonable response to the emergency in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
NB S32: Duress, S246: Provocation, S247: Repetition of Insult, S248: Self Defence
Defence:"Emergency"... ACT Criminal Code Act 1995 - S.10
10.3 Sudden or extraordinary emergency
(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.
(2) This section applies if and only if the person carrying out the conduct reasonably believes that:
(a) circumstances of sudden or extraordinary emergency exist; and
(b) committing the offence is the only reasonable way to deal with the emergency; and
(c) the conduct is a reasonable response to the emergency.
Defence:"Emergency" - Commentary
"Like 10.2 Duress, the defence of sudden or extraordinary emergency imposes an objective standard, limiting the class of those who can rely on the defence. There are three objective criteria, each of which employs the concept of reasonableness as a limit on the defence. With necessary adaptations for differences in subject matter, the criteria are the same as those which determine the availability of a defence of duress:
The emergency must be real or reasonably apprehended as real: The defence of sudden or extraordinary emergency is not available to a defendant who is unreasonably mistaken in apprehending a situation of emergency;
The emergency must be unavoidable by lesser means: The defence is barred unless commission of the offence was the only reasonable way to deal with the emergency;
The defendant’s response to the emergency must be reasonable in the circumstances: The defence is barred if commission of an offence was not a reasonable response to the emergency.263
It is implicit in these criteria that individuals faced with an emergency must sometimes suffer the consequences or allow them to occur, rather than commit an offence which will avert the emergency.
Like duress, the defence of sudden or extraordinary emergency is a general defence, available even to a charge of murder or attempted murder."
[14] Section 25 raises two issues, whether there is relevantly an extraordinary emergency, and, if so, whether an ordinary person possessing ordinary power of self control could not reasonably be expected to act other than as the defendant did act. As to the first limb, it is recognised that the emergency could be factual or the product of an honest and reasonable but mistaken belief [4]. There is not much authority on just how serious an extraordinary emergency must be. Presumably, it must be more than an ordinary emergency, and something which one would not expect to occur very often.
[15] It has been said that it involves a good cause to fear death or serious physical injury [5], but it has also been said that it involves circumstances where there was a likely danger to life or property [6]. It is perhaps not entirely clear that the magistrate was not satisfied that the Crown had shown that there was not an extraordinary emergency in the present case. If, as seems to me to have been the case, that was the attitude of the magistrate, I think it was correct and justified in the circumstances. I do not think it is appropriate to say that merely because there was not an immediate medical risk to the life of the appellant’s passenger, there was not an extraordinary emergency. In my opinion there can be an extraordinary emergency generated by a medical condition which is not actually life threatening, if it is otherwise sufficiently distressing.
[16] In my opinion whether there is an extraordinary emergency is not something which should really be decided in isolation from the issues raised in relation to the second limb. That is because the section refers to “such circumstances of…extraordinary emergency that an ordinary person…could not reasonably be expected to act otherwise.” Accordingly, the “circumstances of extraordinary emergency” which give rise to the exclusion of criminal responsibility are whatever circumstances of extraordinary emergency are such that an ordinary person possessing ordinary powers of self control could not reasonably be expected to act otherwise. Accordingly, the degree of emergency which would be capable of excusing criminal conduct under this section must, in my opinion, be related to the seriousness of the criminal conduct involved [7]. The magistrate may well have approached the matter in this way; finding that there was in the circumstances not such an extraordinary emergency as to justify the appellant’s driving the vehicle himself rather than calling for an ambulance to take the passenger to hospital.
[17] One matter that has struck me, which arises from the reasons from the magistrate, is whether it is sufficient to exclude the operation of section 25 if there was available in the circumstances a reasonable alternative course of action available. The reasons on page 5 seem to me to suggest that approach, although it must be said that the second complete paragraph on page 6 suggests a different approach. It occurs to me that there may well be a difference between the question of whether in the prevailing circumstances an ordinary person possessing ordinary powers of self control could reasonably have acted in the way the defendant did act, and the question of whether in the circumstances an ordinary person possessing ordinary powers of self control would necessarily have acted as the defendant did. This is not a point which appears to have been discussed in the authorities, or at least those at which I have looked, but for what it is worth, it seems to me that, to use the expression “could not reasonably be expected” means that, in order to negative the defence, the tribunal of fact must be satisfied beyond reasonable doubt that in such
circumstances the ordinary person could reasonably be expected to act otherwise.
Accordingly, if in such circumstances it was reasonable to expect that an ordinary person with ordinary powers of self-control could have acted as the accused did, the defence would not have been excluded [8].
[3] Sir Samuel Griffith, note to the draft Criminal Code; Webster and Co v Australasian United Steam Navigation Co Ltd [1902] St R Qd 207 at 217
[4] R v Webb [1986] 2 Qd R 446 at 449
[5] Larner v Dorrington (1993) 19 MVR 75 at 79, citing Carter’s Criminal Law of Queensland.
[6] Dudley v Ballantyne [1998] WASCA 198, 28 MVR 209, a case where a defence under section 25 was upheld on appeal; McHenry v Stewart Full Court of Western Australia, unreported 14.12.76), referred to and followed in Dunjey v Ross [2002] WASCA 14.
[7] A question of proportionality is involved; Dunjey v Cross (supra) at [42].
[8] This approach seems to be supported by the passages from O’Neill and Pius Piane cited below.
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Conspiracy
☞ Indictable Offences WA |
☞ Summary Offences WA |
☞Incitement WA |
Conspiracy (Indictable Offences)...WA Criminal Code ACT 1913 - S.558
Max penalty:
• On indictment (for a Life imprisonment offence) 14 years, otherwise 1/2 the offence's penalty
558. Conspiracy to commit indictable offence
(1) Any person who conspires with another person —
(a) to commit an indictable offence (the principal offence); or
(b) to do any act or make any omission in any part of the world which, if done or made in Western Australia, would be an indictable offence (the principal offence) and which is an offence under the laws in force in the place where it is proposed to be done or made, is guilty of a crime.
(2) A person guilty of a crime under subsection (1) is liable —
(a) if the principal offence is punishable on indictment with imprisonment for life — to imprisonment for 14 years;
(b) in any other case — to half of the penalty with which the principal offence is punishable on indictment.
Summary conviction penalty: for an offence where the principal offence may be dealt with summarily — the penalty with which the principal offence is punishable on summary conviction.
(3) Without limiting subsection (1), the application of subsection (1) extends to a conspiracy under which an offence is to be committed, or an act or omission done or made, by a person other than the persons conspiring with each other.
Max penalty:
• On indictment (for a Life imprisonment offence) 14 years, otherwise 1/2 the offence's penalty
558. Conspiracy to commit indictable offence
(1) Any person who conspires with another person —
(a) to commit an indictable offence (the principal offence); or
(b) to do any act or make any omission in any part of the world which, if done or made in Western Australia, would be an indictable offence (the principal offence) and which is an offence under the laws in force in the place where it is proposed to be done or made, is guilty of a crime.
(2) A person guilty of a crime under subsection (1) is liable —
(a) if the principal offence is punishable on indictment with imprisonment for life — to imprisonment for 14 years;
(b) in any other case — to half of the penalty with which the principal offence is punishable on indictment.
Summary conviction penalty: for an offence where the principal offence may be dealt with summarily — the penalty with which the principal offence is punishable on summary conviction.
(3) Without limiting subsection (1), the application of subsection (1) extends to a conspiracy under which an offence is to be committed, or an act or omission done or made, by a person other than the persons conspiring with each other.
Conspiracy (Summary Offences)...WA Criminal Code ACT 1913 - S.558
Max penalty:
Equal to the greatest punishment for the principal offence
560. Conspiracy to commit simple offence
(1) Any person who conspires with another person —
(a) to commit any simple offence; or
(b) to do any act or make any omission in any part of the world which, if done or made in Western Australia,
would be a simple offence and which is an offence under the laws in force in the place where it is proposed to be done or made, is guilty of a simple offence and is liable to a punishment equal to the greatest punishment to which a person convicted of the offence referred to in paragraph (a) or (b) is liable.
(2) Without limiting subsection (1) the application of that subsection extends to a conspiracy under which an offence is to be committed, or an act or omission done or made, by a person other than the persons conspiring with each other.
(3) A prosecution for an offence under subsection (1) may be commenced at any time.
Max penalty:
Equal to the greatest punishment for the principal offence
560. Conspiracy to commit simple offence
(1) Any person who conspires with another person —
(a) to commit any simple offence; or
(b) to do any act or make any omission in any part of the world which, if done or made in Western Australia,
would be a simple offence and which is an offence under the laws in force in the place where it is proposed to be done or made, is guilty of a simple offence and is liable to a punishment equal to the greatest punishment to which a person convicted of the offence referred to in paragraph (a) or (b) is liable.
(2) Without limiting subsection (1) the application of that subsection extends to a conspiracy under which an offence is to be committed, or an act or omission done or made, by a person other than the persons conspiring with each other.
(3) A prosecution for an offence under subsection (1) may be commenced at any time.
Incitement...WA Criminal Code ACT 1913 - S.553
Max penalty:
• On indictment (for a Life imprisonment offence) 14 years, otherwise 1/2 the offence's penalty
• Summarily, the lesser of the following: the summary penalty of the principal offence or 1/2 the penalty for the offence at indictment
553. Incitement to commit indictable offence
(1) Any person who, intending that an indictable offence (the principal offence) be committed, incites another person to commit the principal offence, is guilty of a crime.
(2) A person guilty of a crime under subsection (1) is liable —
(a) if the principal offence is punishable on indictment with imprisonment for life — to imprisonment for 14 years;
(b) in any other case — to half of the penalty with which the principal offence is punishable on indictment.
Summary conviction penalty: for an offence where the principal offence may be dealt with summarily, the lesser of —
(a) the penalty with which the principal offence is punishable on summary conviction; or
(b) the penalty that is half of the penalty with which the principal offence is punishable on indictment.
Max penalty:
• On indictment (for a Life imprisonment offence) 14 years, otherwise 1/2 the offence's penalty
• Summarily, the lesser of the following: the summary penalty of the principal offence or 1/2 the penalty for the offence at indictment
553. Incitement to commit indictable offence
(1) Any person who, intending that an indictable offence (the principal offence) be committed, incites another person to commit the principal offence, is guilty of a crime.
(2) A person guilty of a crime under subsection (1) is liable —
(a) if the principal offence is punishable on indictment with imprisonment for life — to imprisonment for 14 years;
(b) in any other case — to half of the penalty with which the principal offence is punishable on indictment.
Summary conviction penalty: for an offence where the principal offence may be dealt with summarily, the lesser of —
(a) the penalty with which the principal offence is punishable on summary conviction; or
(b) the penalty that is half of the penalty with which the principal offence is punishable on indictment.
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