Public Places

Contributed by Anusha Goonetilleke, former Supervising Solicitor of Street Law, a program of Canberra Community Law, with acknowledgement to Liam Meagher for his assistance, and current to 1 June 2021. Reviewed in 2021 by Lydia Edwards and John Alati, Supervising Solicitor, Street Law. This information is largely sourced from factsheets developed by Street Law, a program of Canberra Community Law. Additional material added in 2021 by John Alati, Supervising Solicitor, Street Law.

Some crimes relate to performing acts in public places. There are crimes relating to smoking, drinking alcohol, possessing an open container of alcohol, urinating, antisocial/aggressive conduct, 'using' public unleased land, hawking, being naked, sleeping in a car, camping and keeping a caravan, when in a public place.

Neither begging nor loitering is an offence in the ACT. However, we discuss below how loitering in a particular place or for a particular purpose may be an offence.

Police officers also have special powers to direct people to 'move on' from public places.

Smoking

A person commits an offence if they smoke:

• in an enclosed public space (see s 6 Smoke-Free Public Places Act 2003 (ACT));
  
• in an outdoor eating or drinking place that is not a designated outdoor smoking area (see s 9B Smoke-Free Public Places Act 2003 (ACT));
  
  • at a declared smoke-free public place or event that is not a designated smoking area (see s 9T Smoke-Free Public Places Act 2003 (ACT)); or
  • within 10 metres of play equipment at ACT Government managed play spaces (see s 9T Smoke-Free Public Places Act 2003 (ACT); cl 3 Smoke-Free Public Places (Play Spaces) Declaration 2016 (No 1)).
    

Higher penalties apply for smoking at these places in contravention of a direction from an inspector or occupier of the place (ss 7, 9C and 9U Smoke-Free Public Places Act 2003 (ACT)).

Drinking alcohol

A person commits an offence if they drink alcohol or possess an open container of alcohol at:

• a bus interchange;
• a bus station;
• within 50 metres from a bus interchange, bus station, shop or licensed or permitted premises; or
• an alcohol-free place (see ss 199 and 200 Liquor Act 2010 (ACT)).
  

A police officer or inspector who suspects on reasonable grounds a person has alcohol for drinking or possessing in an open container in a public place, is able to seize the alcohol see s 201 Liquor Act 2010 (ACT)). However, they may only do so if they have told the person they suspect them of having committed an offence against sections 199 or 200 of the Liquor Act 2010 (ACT), and why they suspect this (see s 201(2) Liquor Act 2010 (ACT)).

If the police officer or inspector disposes of the alcohol, the person who had the alcohol may not be prosecuted or cautioned in relation to it (see s 201(3) Liquor Act 2010 (ACT)).

Urination

A person commits an offence if they urinate in a public space (see s 393A Crimes Act 1900 (ACT)). It will be a defence if the person is urinating in response to a 'sudden or extraordinary emergency' (see s 41 Criminal Code 2002 (ACT)).

Antisocial/aggressive conduct

A person commits an offence if:

• they fight in a public place (see s 391 Crimes Act 1900 (ACT)); or
• when they are near a public place, or when a person in a public place can see or hear them, they behave in a riotous, indecent, offensive or insulting manner' (see s 392 Crimes Act 1900 (ACT)).

Nudity

A person commits an offence if they expose themself, such as by being naked, in a public place (see s 393 Crimes Act 1900 (ACT)).

Use of public unleased land, including sleeping

A person commits an offence if they 'use' 'public unleased land' without a permit authorising them to do so (see s 43 Public Unleased Land Act 2013 (ACT)). 'Public unleased land' means unleased land that the public is entitled to use, or is open to, or used by, the public (see s 8 Public Unleased Land Act 2013 (ACT)). 'Use' means carrying on an activity on public unleased land in a way that excludes some or all members of the public from the place (see s 41 Public Unleased Land Act 2013 (ACT)).

For example, parking a car in a park, holding markets, or carrying on a business as a hawker selling goods from a van for more than 30 minutes, will involve using public unleased land (see s 41 Public Unleased Land Act 2013 (ACT)).

Sleeping in a car in a park may also be a 'use' of public unleased land and, therefore, an offence.

Camping and caravans

It is illegal to camp or keep a caravan:

• in a lake area (which includes foreshores and islands of designated lakes) at night (see s 32 Lakes Act 1976 (ACT)); or
• on public unleased land without a permit (see s 43 Public Unleased Land Act 2013 (ACT)).

Hawking

A person is a hawker if they move around and sell goods or services out of their vehicle (see s 9A Public Unleased Land Act 2013 (ACT)).

You will generally be required to get a permit to hawk, if your hawking is carried on in a way which excludes members of the public from the place you are selling (see ss 41 and 43 Public Unleased Land Act 2013 (ACT)).

It is illegal for a person to carry on business as a hawker, if in doing so, the person obstructs the movement of people or vehicles on public unleased land (see s 99A Public Unleased Land Act 2013 (ACT)).

Begging

Begging is not an offence in the ACT.

Loitering

Loitering is not an offence in the ACT. However, there are some specific offences in relation to loitering for a particular purpose or in a particular place.

Loitering on at least 2 occasions, with the intent of causing apprehension, fear of harm, or harm, or with the intent to harass the person, constitutes the offence of stalking (see s 35 Crimes Act 1900 (ACT)). Exceptions apply to when this is reasonable conduct engaged in as part of the person's employment (see s 35(3) Crimes Act 1900 (ACT)).

A person commits an offence if, for the purpose of offering or procuring sexual services for money or other material reward, they accost a person, or solicit or loiter, in a public place (see s 19 Prostitution Act 1992 (ACT)).

Move on powers

In certain circumstances, police officers have powers to direct people to:

• leave public places;
• remain outside a public place for a period of not more than 6 hours; or
• leave the public place by a particular route, or in a particular direction (see s 175(3) Crimes Act 1900 (ACT)).
• Police may issue such directions if they reasonably believe that a person recently has, is, or is about to:
  • engage in violence or intimidation to a person;
  • damage property; or
  • engage in conduct that would cause a reasonable person to fear for their safety (see s 175(1) Crimes Act 1900 (ACT)).

Where a police officer issues an exclusion direction under s175 of the Crimes Act 1900 (ACT), they must give the person to whom the direction is given, or make a reasonable effort to give them certain information, including the reason for the direction, and the date and time that it ends (see s177 (1) Crimes Act 1900 (ACT).

Exceptions apply to picketing, demonstrating or protesting and similar activities (see s 175(2) Crimes Act 1900 (ACT)).