When does being an annoying to others cross the line into becoming a crime in Australia? Public nuisance has a long history and is a commonly misunderstood area of law in Australia. Our criminal lawyers Sydney team outline the law on this topic below.
Public nuisance coverers a wide range of behaviour that interferes with the rights of the community or general public. It also includes a breach of the peace.
What Is Public Nuisance?
'Public nuisance' is conduct that unreasonably and substantially interferes with the rights of the public to use and enjoy public spaces.
Typical examples include disorderly or offensive conduct, such as public drunkenness that results in harassment or shouting, the use of obscene or abusive language in areas frequented by families or playing loud music late at night in public parks and streets. It also includes threatening or violent behaviour, like vandalism, verbal intimidation or physically obstructing others from accessing public areas. Environmental nuisances, such as illegally dumping rubbish in public parks or releasing pollutants that affect air quality may also constitute public nuisances.
Importantly, to constitute public nuisance the nuisance conduct must affect a section of the public or the community at large, not just a specific individual. For example, shouting abuse at one person in private may not amount to public nuisance, but engaging in disruptive behaviour that disturbs passersby in a public area may meet this threshold.
Is Public Nuisance a Criminal Offence? | Public Nuisance Fine
In New South Wales section 4 of the Summary Offences Act 1988 (NSW) prescribes up to three months imprisonment or $660 fine if a person is guilty of the offence of offensive behaviour or offensive conduct in New South Wales. This offence is made out if a person behaves in an offensive manner in or near, or within sight or hearing of, a public place or school. An available defence to this offence is if a person can prove that he or she had a reasonable excuse for their behaviour.
"Offensive conduct or behaviour" is if the conduct or behaviour wounds the feelings, arouses anger, resentment or disgust or outrage in the mind of the hypothetical reasonable person present according to current community standards.
The reasonable person is one who is reasonably tolerant and understanding, and reasonable contemporary in hir or her reaction. Such a person is not thin-skinned and does not have to actually be present to view the behaviour for it to amount to offensive conduct/behaviour.
In New South Wales, the offensive conduct/behaviour offence can instead of being taken to court be dealt with by way of a penalty notice fine. This means, that upon payment of the fine, there will result in no conviction according to schedule 4 to the Criminal Procedure Regulation 2017 (NSW).
Similarly, under section 4A of the Act, it is an offence to use offensive language in or near, or within hearing of, a public place or school. The maximum penalty is a fine of 6 penalty units and no imprisonment. "Offensive language" is defined as language that would wound the feelings, arouse anger or resentment or disgust or outrage in the mind of the hypothetical reasonable person present according to current community standards, according to the case of Police v Butler [2003] NSWLC 2.
A person may defend the charge by proving they had a reasonable excuse for their conduct.
Instead of imposing a fine, the court may also impose a community correction order with a community service work condition or, for young offenders, a community service order under the Children (Community Service Orders) Act 1987. The maximum number of hours that can be imposed for community service under this section is 100 hours.
There are also a number of environment protection offences under Chapter 5 of the Protection of the Environment Operations Act 1997 (NSW) encompassing offences for air, noise, land and water pollution. These offences prohibit activities causing environmental harm, outline strict requirements for compliance and carry substantial penalties, including significant fines and potential imprisonment, for both individuals and corporations.
In some cases, public nuisance activities may also fall foul of local council by-laws, allowing council authorities to issue penalty notices for a range of behaviours that disturb public amenity. These typically include excessive noise complaints, loitering in public spaces, unapproved gatherings or events, obstructing public access, and littering. Enforcement of these by-laws is carried out by council officers, who can issue on-the-spot fines, formal warnings, or directions to cease offending behaviour.
Finally, police officers also have a wide range of discretionary powers under the Summary Offences Act 1988(NSW) and related legislation to issue penalty notices or move-on directions to individuals engaging in nuisance behaviour. Failure to comply with these directions may result in further fines or arrest.
In NSW, a police officer has the power to search and arrest a person if that person is committing a breach of the peace. Section 4 of the Law Enforcement (Powers and Responsibilities) Act (NSW) permits the police to do this. Accordingly, police can arrest a person if the officer reasonably apprehends an imminent breach of the peace from the person.
Albert v Lavin [1981] and Paddington v Bates [1961] gives the courts guidance in determining what is a reasonable apprehension of an imminent breach of the peace, namely, it is not enough that the police anticipate an imminent breach of the peace. The police officer must reasonably anticipate it. accordingly there must be a real and not a remote possibility of an imminent breach of the peace.
The meaning of a "breach of the peace" is an act done or threatened to be done that either actually harms a person or in his presence his property, or is likely to cause such harm, or that places someone in fear of such harm being done.
Public Nuisance Examples
Public nuisance includes a wide range of conduct encompassing offensive behaviour or conduct and offensive language in public. It includes the following behaviour:
- Public drunkenness involving harassing or shouting.
- Use of obscene or abusive language in areas frequented by families.
- Playing loud music late at night in public parks and streets.
- Threatening or violent behaviour such as vandalism, verbal intimidation or physically obstructing others from accessing public areas.
- Illegally dumping rubbish in public or releasing pollutants that affect the quality of air.
- Shouting abuse at person(s) in public.
Public Nuisance QLD
In Queensland, section 6 of the Summary Offences Act 2005 (Qld) prescribes up to 6 months imprisonment or 10 penalty units, or up to 25 penalty units with 6 months imprisonment if it occurs in circumstances of aggravation. Examples of public nuisance in Queensland includes:
- Disorderly behaviour, or
- Offensive behaviour, or
- Threating behaviour, or
- Violent behaviour, and
The person's behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public.
A person behaves in an offensive way if he or she uses offensive, obscene, indecent or abusive language, and behaves in a threatening way if the person uses threatening language.
Public Nuisance VIC
Public nuisance in Victoria is a common law offence which under section 320 of the Crimes Act 1958 (Vic) carries up to 5 years imprisonment. Examples of public nuisance in Victoria include obstructing footpaths or other public access areas or engaging in threatening or offensive conduct or causing excessive noise in public.
In summary, public nuisance in Victoria is conduct or behaviour that interferes with the peaceful enjoyment or passage through public areas.
Civil Claims for Public Nuisance and Private Nuisance
In some cases, nuisance may constitute a civil wrong rather than a criminal offence. A civil wrong is an act that infringes on another person's legal rights, leading to civil liability ("getting sued") rather than criminal punishment.
A civil action of public nuisance can also be brought on behalf of the community by the Attorney General or by an individual if they have suffered "special damage" – that is, harm beyond what the general public has experienced.
More commonly though, civil actions are made on the basis that a person has committed a 'private nuisance'. Private nuisance occurs when someone interferes with another individual's use and enjoyment of their private property. It often arises in disputes between neighbours.
To succeed in a claim for private nuisance, a person must prove:
- They have a legal interest in the land affected;
- The defendant's conduct caused substantial and unreasonable interference; and
- The interference was intentional, reckless or negligent.
Common examples of private nuisance include loud noise, smoking in common areas as well as overhanging trees. Potential legal remedies include an injunction, a court order to stop or prevent further interference, as well as 'damages' or compensation for harm suffered.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
