Public nuisance and the charges that come with it

What the offence requires

Section 6 requires two things.

1. The person behaves in a disorderly, offensive, threatening or violent way.
2. That behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public.

Note the second element carefully. The behaviour does not have to have actually disturbed anyone. It is enough that it was likely to.

Offensive language sits inside this definition rather than being a separate offence. Obscene, indecent, abusive or threatening language can support a charge, and the Act states that a person behaves in a threatening way if they use threatening language.

The related offences below all sit in the same part of the Summary Offences Act 2005 (Qld) and share the public place element.

The related offences

Urinating in a public place

A separate offence. It covers roadside locations, skip bins and licensed areas, not just the obvious ones. Evidentially, a witness who observed liquid emerging from the pelvic area has generally been treated as sufficient.

Begging in a public place

Asking for money, food or goods in a public place is an offence, as is causing a child to beg. It does not apply to charities or local government collections where the organisation is identifiable, and it does not apply to a person authorised to busk.

Homelessness itself is not an offence. In practice, police and the public frequently take no action unless there are complaints or the conduct becomes disruptive.

Wilful exposure

A person in a public place must not wilfully expose their genitals without reasonable excuse. The same applies if you are so near a public place that you can be seen from it, which is why sunbathing in a backyard adjoining a park is a poor idea. Penalties increase where the exposure was to embarrass or offend another person.

Being intoxicated in a public place

Drinking is lawful. Being adversely affected by alcohol or drugs in a public place is an offence. Stumbling, slurred speech, yelling and carrying an open container are the usual evidence.

The penalties

A first or minor incident is often dealt with by infringement notice. Repeat or more serious conduct goes to court.

We have deliberately not converted these into dollars. Penalty unit values move every 1 July, and a figure published in an old article is usually wrong by the time someone reads it. Multiply the current penalty unit value by the number of units.

The penalty actually imposed depends heavily on the conduct. Exposure to a child sits at a very different point on the range from being drunk outside a nightclub.

Where the defences are

Because the elements are subjective, the first question is always whether the conduct actually crossed the statutory line rather than merely annoying a police officer.

• The interference element. The prosecution must show the behaviour interfered, or was likely to interfere, with peaceful passage through or enjoyment of a public place. An empty street at 3am is a different context from a crowded mall at midday.
• Was the conduct disorderly, offensive, threatening or violent. Community standards on language have shifted considerably. Swearing is not automatically offensive.
• Was it a public place within the meaning of the Act.
• Identification. In a crowd, at night, after alcohol, misidentification is a genuine issue and one that is often resolved by CCTV.
• Reasonable excuse, where the particular offence allows for one.

The context, the location and the exact words or conduct all need to be examined. A charge that looks unanswerable in a police fact sheet often looks different once the body worn camera footage is obtained.

Why it is worth defending

These are not life ruining charges. They can still produce a criminal conviction, and a conviction for an offence involving offensive or threatening behaviour appears on a criminal history check for years.

That matters for employment, for a Blue Card, for a security licence and for travel. Whether a conviction is recorded is a separate question from whether you are found guilty, and it is one worth arguing about under section 12 of the Penalties and Sentences Act 1992 (Qld).

See our page on public nuisance charges for how these matters run in the Magistrates Court.