Last updated 21 December 2016
With certain street offences, a police officer may at their discretion issue a person with an infringement notice or an ‘on-the-spot’ fine which then requires the defendant to elect court proceeding if they wish to argue against guilt. Where an offender is dealt with in this manner, no criminal history is recorded.
The offences that attract the option of an infringement notice are:
- public nuisance
- public urination
- obstruct police or contravene requirement of a police officer (but only in relation to a public nuisance offence or where failing to state a correct name or address).
When issuing the infringement notice, police must also give the person a Public Nuisance Ticket Information Sheet, which provides information about court election and payment options among other things.
A person commits a public nuisance offence (s 6 Summary Offences Act 2005 (Qld) (Summary Offences Act)) if:
- they behave in a disorderly, threatening, violent or offensive way
- their behaviour interferes, or is likely to interfere, with the peaceful passage through, or the enjoyment of, a public place by a member of the public.
It is important to note that police must prove two facts to make out a public nuisance offence:
- the disorderly, offensive, threatening or violent behaviour of that person and
- the actual or likely interference by that person with the use or enjoyment of a public place by a member of the public.
A public place is widely defined as a place that is open to, or used by, the public whether or not on payment of a fee.
Since the High Court’s decision in Coleman v Power (2004) 220 CLR 1, there has been some significant litigation on the correct interpretation of this provision. The case law suggests these scenarios:
- It is enough if the offending behaviour is simply heard from a public place (e.g. when a person is screaming obscenities from inside their own home, and such obscenities are audible from the public footpath).
- The manner in which words are said can be considered when determining whether the words are offensive.
- A member of the public includes a police officer attending to their duties.
- The conduct must be likely to cause a disturbance or, at the very least, considerably annoy members of the public.
- There must be a real, not a remote, likelihood that a member of the public will have their peaceful passage or enjoyment interfered with.
The maximum penalty for a public nuisance offence is a $2945 fine or six months imprisonment.
Urinating in a public place
A person must not urinate in a public place (s 7 Summary Offences Act). Evidence that liquid was seen to be discharged from the pelvic area is proof of urination. This offence carries a maximum penalty of $471.20. Police have the option, at their discretion, to issue an infringement notice instead of commencing prosecution (i.e. going to court).
Begging in a public place
A person must not beg, solicit donations, or cause or encourage a child to beg for money or goods in a public place (s 8 Summary Offences Act). This provision does not apply to authorised buskers or collectors for certain charities. This offence carries a maximum penalty of $1178 or six months imprisonment.
A person in a public place, or visible from a public place, must not wilfully expose their genitals unless they have a reasonable excuse (s 9 Summary Offences Act). This charge is commonly used for nude sunbathers, flashers, streakers and people who urinate in public areas (e.g. hotel car parks).
The Summary Offences Act introduced a defence where a person has a reasonable excuse for the exposure. It is anticipated that the reasonable excuse defence may be open if a defendant is able to demonstrate that there were no public toilet facilities available for use prior to their public urination.
The maximum penalty for wilful exposure is $235.60. It is a circumstance of aggravation for a person to wilfully expose their genitals in the attempt to offend or embarrass another person. Where a circumstance of aggravation exists, the maximum penalty is increased to $4712 or one year imprisonment.
Being drunk in a public place
Section 10 of the Summary Offences Act creates the offence of being drunk in public. The offence carries a fine of $235.60. Each year, Queensland Police bring more than 12 000 charges of public drunkenness. The Royal Commission into Aboriginal Deaths in Custody found that Aboriginal and Torres Strait Islander people were being brought into custody unnecessarily because of this offence and recommended that public drunkenness be decriminalised.
This recommendation has not yet been implemented. In Queensland, ss 378 and 390E of the Police Powers and Responsibilities Act 2000 (Qld) empowers police to divert a person arrested for public drunkenness to a safe place. This power is supported by relevant sections of the Police Operational Procedures Manual. However, anecdotal evidence suggests that this power is not widely used by police.