skip to content
Law Handbook banner image

Common Offences

The most common offences are mostly summary offences and some minor indictable offences. Indictable offences are less common, however this section includes information on some of those offences also.

Various Acts create offences, however this section of the Law Handbook mostly deals with offences created by the Summary Offences Act 1953 (SA) and the Criminal Law Consolidation Act 1935 (SA).

Offences against the person

Sexual offences are dealt with separately in the Law Handbook - see Sexual Offences.

For information on compensation for injuries caused by criminal acts, see Victims of Crime Compensation.

Assault

Definition

Section 20 of the Criminal Law Consolidation Act 1935 (SA) outlines the offence of Assault.

Assault occurs if there is any intentional and unwanted physical force used against a victim [s 20(1)(a)]. For example, punching, hitting or kicking a person. The force used can be direct or indirect. For example, if because of an assault, a person drops a child they were carrying, that is also an assault on the child – even though the child was not directly assaulted.

Assault also occurs if there is any intentional and unwanted direct or indirect contact with another person, however slight the contact may be, if the person committing the assault knew that the victim might reasonably object to the contact [s 20(1)(b)]. For example, it could be throwing a newspaper at someone, knowing the person might object to that.

Assault can occur even without physical contact. If a threat is made to apply force and the victim reasonably believes that the person can carry out the threat or there is a real possibility that they will [s 20(1)(c)]. For example, if a person points a gun at someone or produces a knife.

An assault can also occur when a person accosts (approaches and confronts aggressively) or impedes (blocks the way of) another in a threatening manner [s 20(1)(e)].

What is not considered assault

A distinction is made for behaviour that falls within the limits of what would be accepted as normal social interaction or community interaction. Such behaviour does not constitute assault.

Examples of such conduct include acts such as patting the shoulder of another person to attract their attention, or pushing between others in order to get out of a crowded bus. Although these acts involve intentional touching of another without their consent, provided they are committed in a non-hostile and inoffensive manner, they do not constitute assault.

In addition, any conduct that is justified or excused by law is not an assault.

Maximum penalty

  • Basic offence: two years imprisonment
  • Aggravated offence: three years imprisonment
  • Aggravated offence by use of, or threatened use of, an offence weapon: four years imprisonment

[Criminal Law Consolidation Act 1935 (SA) s 20(3)]

For more information on circumstances of aggravation see 'What is an aggravated offence?'

Assault causing harm

A distinction is made between an assault where there are no significant injuries and an assault causing harm (for example injuries are sustained such as bruises or a broken nose). There are higher penalties for this type of offence:

Maximum penalty

  • Basic offence: three years imprisonment
  • Aggravated offence: four years imprisonment
  • Aggravated offence by use of, or threatened use of, an offence weapon: five years imprisonment

[Criminal Law Consolidation Act 1935 (SA) s 20(4)]

For more information on circumstances of aggravation see 'What is an aggravated offence?'

Other assaults

Causing harm

Another form of assault is the offence of causing harm [Criminal Law Consolidation Act 1935 (SA) s 24]. It is similar to assault causing harm but the penalties are more severe.

To be guilty of such an offence a person must cause harm to another either intending to cause injury or being reckless as to whether they do so.

Harm can be either physical or mental, and includes pain, disfigurement, unconsciousness and infection with a disease. Mental harm includes psychological harm but not emotional reactions such as distress, grief, fear or anger, unless they develop into psychological harm [Criminal Law Consolidation Act 1935 (SA) s 21].

Maximum penalty

Causing harm with intent to cause harm:

  • Basic offence – 10 years imprisonment.
  • Aggravated offence – 13 years imprisonment.

Recklessly Causing harm:

  • Basic offence – five years imprisonment.
  • Aggravated offence – seven years imprisonment.

Causing serious harm

A more serious charge is that of causing serious harm [Criminal Law Consolidation Act 1935 (SA) s 23]. Serious harm includes harm that endangers or is likely to endanger a person's life, results in serious and protracted impairment of a physical or mental function, or harm that results in serious disfigurement [see Criminal Law Consolidation Act 1935 (SA) s 21].

Maximum Penalty

Causing harm with intent to cause harm:

  • Basic offence – 20 years imprisonment.
  • Aggravated offence – 25 years imprisonment.

Recklessly Causing harm:

  • Basic offence – 15 years imprisonment.
  • Aggravated offence – 19 years imprisonment.

There is provision for the court to impose a penalty exceeding the prescribed maximum in cases where a victim suffers such serious harm that the Director of Public Prosecutions feels a higher sentence is warranted [s 23(2)].

How is a decision made on what charge to be laid?

Whether a person is charged with common assault or some more aggravated form of assault will be decided by the police. The crucial questions will be the degree of injury to the victim, whether the victim is a vulnerable person and whether or not a weapon was used.

Breaching an intervention order

While obtaining an intervention order is a civil matter, it is a criminal offence to breach an order.

There are two categories of breach:

Penalty:

  • For a breach of a term under s 13 (failure to comply with intervention program), the maximum penalty is a $1 250 fine or an expiation fee of $160. The Court may also order payment of not more than a prescribed amount towards the cost of any intervention program the defendant may be required to undertake [s 13(4)(b)]. For details of the prescribed amount see reg. 4A of the Intervention Orders (Prevention of Abuse) Regulations 2011 (SA).
  • For a breach of any other term, the maximum penalty is 2 years imprisonment. It may also result in an order for payment of note more than the prescribed amount towards the cost of any intervention program the defendant is required to undertake [s 31(2a)(a)]. For details of the prescribed amount see reg. 4A of the Intervention Orders (Prevention of Abuse) Regulations 2011 (SA).

[Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31]

Breach by protected person

A protected person is not guilty of an offence of aiding or abetting a breach of the order unless their conduct results in a breach of the order in respect of another person protected by the order (or any other order in force against the defendant) [s 31(3)].

Landlords

It is an offence for a landlord to provide a defendant with a key or otherwise assist in providing entry to premises where a protected person is resident. The following conditions must be met for the offence to be made out:

  • There must be an intervention order prohibiting the defendant from being on rented premises at which the protected person(s) reside(s); and
  • The landlord has received notification of the prohibition.

    Maximum penalty - $10 000

[Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 32]

Police action

It is up to police to decide what action, if any, is to be taken when a breach is reported. If a minor breach is reported, police may choose to warn the defendant about his/her behaviour and give a warning of the consequences of a further breach rather than take action at this point.

Causing death or harm by dangerous driving

Any person who drives a motor vehicle in a negligent or reckless manner, at high speed, or in a manner that is dangerous to any person and as a result of that behaviour causes death or harm to another is guilty of an offence [Criminal Law Consolidation Act 1935 (SA) s 19A].

Penalties for this offence are very harsh and even a first offence can carry an immediate gaol sentence. The maximum sentence for a first offence is 15 years imprisonment. If the offence is found to be an aggravated offence* or it is a second or subsequent offence, it can carry a term of life imprisonment. The penalty for this offence may also involve a disqualification of at least 10 years, or possibly longer, if a court orders.

* An aggravated offence for the purposes of this offence is an offence committed under the following circumstances:

  • the person committed the offence in the course of attempting to escape pursuit by a police officer;
  • the person was, at the time of the offence, driving a vehicle knowing that he or she was disqualified from holding a driver’s licence or his or her licence was suspended;
  • the person committed the offence as part of a prolonged, persistent and deliberate course of bad driving;
  • the person committed the offence while there was present in his or her blood a blood alcohol level of 0.08 grams or more of alcohol in 100 millilitres of blood;
  • the person was, at the time of the offence, driving a vehicle in contravention of s 45A (excessive speed), s 47 (driving under the influence) or s 47BA (driving with a prescribed drug in oral fluid or blood) of the Road Traffic Act 1961 (SA).

[Criminal Law Consolidated Act 1935 (SA) s 5AA(1a)]

Criminal neglect

Criminal neglect

Where a child (a person under 16 years) or a vulnerable adult dies or suffers harm as a result of an act, the person who, at the time of the act, had a duty of care to the victim, may be charged with an offence under section 14 of the Criminal Law Consolidation Act 1935 (SA).

Vulnerable adult means a person aged 16 years or above whose ability to protect himself or herself from an unlawful act is significantly impaired through physical disability, cognitive impairment, illness or infirmity [s 13B(1)].

An act includes an omission and a course of conduct [s 13B(1)].

To be guilty of this offence a person would:

  • have to have had a duty of care to the child or vulnerable adult at the time of the act; and
  • been aware, or ought to have been aware, that there was a risk that harm would be caused to the victim by the act; and
  • failed to take reasonable action to protect the victim from harm and the failure was so serious that a criminal penalty is warranted.

See Criminal Law Consolidation Act 1935 (SA) s 14(1).

Harm in these matters means physical or mental harm (whether temporary or permanent) [s 21], and includes detriment caused to the physical, mental or emotional wellbeing or development of a child or vulnerable adult (whether temporary or permanent) [ss 13B(2) and 13B(3)].

A defendant has a duty of care to the victim if they are the parent or guardian or the victim, or where they have assumed responsibility for the victim's care [s 13B(4)].

The maximum penalty if the child or vulnerable adult dies is imprisonment for life. In any other case the maximum penalty is imprisonment for 15 years [s 14(1)].

This is a lesser charge than murder or manslaughter and may be used in circumstances where it is not clear precisely who is responsible for the death (or harm) of a child. Often in cases involving death or harm to a child (or vulnerable adult) it is clear that at least one of the caregivers was responsible but proving beyond a reasonable doubt that it was one parent/guardian rather than the other, particularly where both accuse one another and where the victim cannot testify, can be extremely difficult. This offence allows for charges to be laid in such circumstances [see s 14(2)]. The emphasis is on the fact that an act has occurred and insufficient protection was provided by the person or persons responsible for the care of the child or vulnerable adult.

Where a defendant is charged under this section in respect of a course of conduct, it is not necessary to prove that the defendant was aware, or ought to have been aware, that harm would be caused to the victim by each act making up the course of conduct [s 14(3)(a)].

Failure to provide food

Section 14A of the Criminal Law Consolidation Act 1935 (SA) provides for an offence where a person fails, without lawful excuse, to provide (and where they are liable to provide) necessary food, clothing or accommodation to a child or vulnerable adult [s 14A]. Maximum penalty for this offence is imprisonment for 3 years.

Female Genital Mutilation (FGM)

Definition

Female genital mutilation (FGM) is:

  • clitoridectomy (removal of the clitoris)
  • excision of any other part of the female genital organs
  • a procedure to narrow or close the vaginal opening
  • any other mutilation of the female genital organs.

FGM does not include a sexual reassignment procedure or a medical procedure that has a genuine therapeutic purpose.

[See Criminal Law Consolidation Act 1935 (SA) s 33 and Children's Protection Act 1993 (SA) s 26A]

Offences

Under s 33A of the Criminal Law Consolidation Act 1935 (SA), FGM is a crime. It is not a defence that the person who has been mutilated consented to the procedure. Nor is it a defence that the person's parent or guardian consented to the procedure.

Maximum penalty: 7 years imprisonment.

Under s 33B of the Criminal Law Consolidation Act 1935 (SA), a person must not take a child from the State, or arrange for a child to be taken from the State, with the intention of having her subjected to genital mutilation. It will be presumed (in the absence of proof to the contrary) that the offence of taking a child out of the State for the purpose of subjecting her to genital mutiation has been committed if the child was taken out of the State and, while out of the State was subjected to genital mutilation.

Maximum penalty: 7 years imprisonment.

Prevention measures

Under s 26B of the Children's Protection Act 1993 (SA), if the Court is satisfied that there are reasonable grounds to suspect a child is at risk of FGM, the Court may make orders for the protection of the child. Such orders might provide for the periodic examination of the child, that the child not be removed from the State and/or that their passport be held by the Court for a period of time.

Humiliating or degrading filming

It is an offence to film another person while the other person is being subjected to, or compelled to engage in a humiliating or degrading act, but does not include filming such an act where the other person consents to the filming [see Summary Offences Act 1953 (SA) s 26B(1)]. It is a defence to this charge if the defendant did not knowingly film the act, the defendant reasonably believed that the victim consented, or the act was filmed for a legitimate public purpose [see s 26B(4)].

It is a further offence to distribute images obtained from humiliating or degrading filming [see s 26B(2)]. It is a defence to this charge if the defedant did not distribute the images intentionally or recklessly or distributed the images for a legitimate public purpose [see s 26B(5)].

Maximum penalty: Imprisonment for 1 year.

It is also an offence to take part in a humiliating or degrading act that is filmed of another person being humiliated or degraded. This includes the distribution of any image or images obtained as a consequence of the filming [see s 26B(3)].

Maximum penalty: Imprisonment for 2 years.

Murder

To convict on a charge of murder the court must establish that:

  • the victim has died; and
  • an act of the defendant’s has contributed significantly towards the death — it does not have to be the sole cause, or even the main cause of death; and
  • the defendant intended to kill the victim or inflict grievous bodily harm, or knew that it was probable his/her act would cause death or grevious bodily harm, or puts another person in danger with reckless indifference to the life of the person.

Murder carries a penalty of life imprisonment [Criminal Law Consolidation Act 1935 (SA) s 11].

Causing death by an intentional act of violence

It is an offence of murder to cause death by an intentional act of violence [s 12A Criminal Law Consolidation Act 1935]. The offence occurs where a person:

  • commits an intentional act of violence;
  • while acting in the course or furtherance of a major indictable offence punishable by imprisonment for 10 years or more (other than abortion);
  • which results in the death of another.

Murder by omission

Whilst murder is usually the result of a positive act, the law also recognises that a person may be guilty of murder because of something they did not do. This is referred to as murder by omission and it occurs where the defendant is under a duty to perform a particular act and knows (and consciously accepts) that their failure to act would probably result in death or grevious bodily harm.

Examples of where a person would have a positive duty to act are rare but include:

  • where parents leave a child in their care to starve to death (R v Gibbins (1918) 13 Cr App R 134);

  • where a defendant has placed a person in danger as a result of a wrongful act they have committed – in such a situation they are arguably under a duty not to leave the person in danger.

    In R v Taber (2002) 56 NSWLR 443 the defendants assaulted, bound and gagged the victim (an elderly woman living alone) and left her in her house to die. Despite having made a phone call to emergency services (which was treated as a hoax) they made no further effort to ensure their victim was given assistance, with the result that she died of dehydration some nine to eleven days after they left her. It was open to the jury to find the defendants guilty of murder by omission and they did. However, these convictions were later overturned on appeal and at a re-trial they were found guilty of the alternative charge of manslaughter.

Conspiring or soliciting to commit murder

Under s 12 of the Criminal Law Consolidation Act 1935 (SA) it is an offence for any person to conspire to murder or to solicit the murder of another person.

Maximum penalty: life imprisonment

See further: Defences

Manslaughter

Like murder, manslaughter requires that:

  • the victim has died; and
  • an act of the defendant’s contributed significantly to their death.

However, the final element that is required to establish murder, that is, that the defendant intended to cause death or grievous bodily harm or knew that their actions would result in death or bodily harm, is not present in a case of manslaughter. This is because the law recognises that there is a significant distinction to be made between a death caused as a result of a person’s deliberate intent or recklessness and one that, although caused as a result of a person’s actions, was not intended by them to result in such harm.

Within the offence of manslaughter the common law recognises different categories of manslaughter. A distinction is often made between voluntary and involuntary manslaughter.

Voluntary manslaughter occurs where all the elements for the offence of murder are met but liability is reduced due to mitigating circumstances such as provocation.

Involuntary manslaughter involves the following categories:

  • Unlawful or dangerous act: death from an unlawful or dangerous act carrying with it an appreciable risk of serious injury is manslaughter where the defendant exposed the victim to an appreciable risk of serious injury. A frequent example of this sort of case are single punch, or "King-hit", assault cases, where the defendant’s sole punch to the victim (intending to hurt but not to kill) results in their death.

    Where the victim has engaged willingly in the dangerous act, consent on the part of the victim to the dangerous act is not a defence. An example of this is R v Cato(1976) 1 All ER 260. In this case the victim engaged in injecting heroin with the assistance of the defendant. Both defendant and victim were responsible for measuring out their own doses with the agreement that they would then administer the shot to the other person.

  • Criminal Negligence: a very high degree of negligence is required – inattention or a simple lack of care is not sufficient. However, where behaviour is so reckless as to show a disregard for the life and safety of others this will generally meet the test of criminal negligence [see Andrews v DPP(1937) AC 576]. The negligent act must be a substantial factor in the cause of death, see R v Cato (1976) 1 All ER 260.

Maximum penalty:

The maximum penalty for manslaughter is life imprisonment or for a fine or both [s 13(1) Criminal Law Consolidation Act 1935 (SA)].

If the victim's death was caused by the convicted person's use of a motor vehicle, the court must order that the person be disqualified from driving for a minimum of 10 years [s 13(2) Criminal Law Consolidation Act 1935 (SA)].

[See also: Defences].

Stalking, cyber stalking and cyber bullying

It is an offence to unlawfully stalk another person. Stalking as defined by the Criminal Law Consolidation Act 1935 (SA) includes where a person, on at least two occasions:

  • Follows another person; or
  • Loiters outside a person’s place of residence or some other place they frequent; or
  • Enters or interfes with property in the possession of another person; or
  • Gives or sends offensive material to another person or leaves it where it will be found by them or come to their attention; or
  • Publishes or transmits offensive material by the internet or other forms of electronic communication in such a way that it will be found or brought to the other person’s attention; or
  • Communicates with another person by mail, telephone, facsimile or the internet in a manner that could reasonably be expected to cause fear or apprehension in that person; or
  • Communicates to others (by mail, telephone, facsimile or the internet) about the person is a manner that could reasonably be expected to cause fear or apprehension in the other person; or
  • Keeps another person under surveillance; or
  • Acts in any other way that could reasonably be expected to create apprehension or fear in another person; and
  • These acts must be done with the intention to cause serious physical or mental harm to that person or a third person or with intention to cause serious apprehension or fear.

[Criminal Law Consolidation Act 1935 (SA) s 19AA(1)]

The offence can be aggravated if:

  • the behaviour breaches another court order or an injunction (for example, an intervention order); or
  • the offender was in possession of an offensive weapon; or
  • if the victim is a vulnerable person (including if the victim is a current or former spouse); or
  • for any other reason listed in s 5AA Criminal Law Consolidated Act 1935 (SA).

Maximum penalty: 3 years imprisonment (basic offence); 5 years imprisonment for an aggravated offence.

Alternative charge of offensive behaviour

Where a person is charged with stalking they are taken to have been charged in the alternative with offensive behaviour. This means that if the court is not satisfied that the offence of stalking has been made out but there is sufficient evidence to establish an offence of offensive behaviour, the court may convict the person of offensive behaviour [Criminal Law Consolidation Act 1935 (SA) s19AA(3) - see also Summary Offences Act 1953 (SA) s 7]

Cyber stalking and Cyber bullying

Cyberstalking is the use of information technologies to harass and intimidate an individual. In many ways it is similar to traditional forms of stalking but the use of sophisticated technology can make intrusions into a victim’s life far beyond those made possible by physical harassment.

Incidents of cyberstalking are recognised under the definition of stalking used in South Australian legislation (i.e. the inclusion of offences relating specifically to the use of internet and electronic technologies to communicate in an intimidating manner or to publish offensive material). However the prosecution of such offences, as with the traditional stalking offences, is rare.

Cyber bullying may be assault under the Criminal Law Consolidation Act 1935 (SA) [s 20] if there is a threat by the bully that they will physically hurt the victim, and either there is a real possibility that the bully will carry out the threat or is in a position to carry out the threat and intends to do so.

Under Federal criminal law cyber bullying and trolling may be illegal. This is because there is a law which makes using the internet to menace, harass or cause offence, illegal [Criminal Code Act 1995 (Cth) s 474.17]. The maximum penalty for this offence is three years imprisonment. Where the use of the internet to menace, harass or cause offence also involves sharing private sexual material, the maximum penalty is five years imprisonment. See: Distribution of Invasive Images ('Revenge Porn').

Despite the provisions of the legislation, the prosecution of stalking-type offences is very difficult. Not only must there be at least two proven instances of the behaviour but the mental element of intention to cause harm or create fear must be established by the prosecution (in each instance being relied upon). Police policy is to caution or warn an offender in the first instance and this, in a majority of cases, is an effective way of dealing with the problem.

The expansion of legislation to allow for intervention orders on the basis of cyberstalking provides an alternative to prosecution [see Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 8(4)]. As with any criminal offence, a charge of stalking/cyberstalking must be proved beyond a reasonable doubt. In contrast, an application for an intervention order requires only that it can be established that a danger exists on the balance of probabilities. In addition, given terms of imprisonment for stalking are rare, an intervention order potentially offers a longer period of protection than a conviction could (see Intervention orders).

Many websites, such as Facebook, will remove pages and content that is offensive and can also ban cyber bullies from using the site. Contact the website administrator or company to request material to be removed. Alternatively, a report may be made in some circumstances to the Office of the eSafety Commissioner, see Office of the eSafety Commissioner.

Cyber bullying and trolling may also be defamatory (damaging to a person’s reputation) – see Defamation.

Office of the eSafety Commissioner

The Office of the eSafety Commissioner was established in 2015 to promote online safety. Initially established to protect and promote online safety for children only, the eSafety Commissioner's scope and powers have expanded under the Enhancing Online Safety Act 2015 (Cth) to cover adults as well as children, and include:

  • a complaints handling service for young people experiencing serious cyberbullying [s 18];
  • an ability to remove or require the removal of cyberbullying material from certain social media services and sites [ss 28; s 35];
  • an ability to issue notices to individuals requiring them to remove cyberbullying material or to refrain from posting cyberbullying material online [s 42];
  • an image-based reporting portal which provides reporting options, support and resources for victims of image based abuse;
  • an ability to remove or require the removal of image based abuse material from social media services and sites [s 44D];
  • an ability to investigate complaints about certain types of online content, pursuant to the Broadcasting Services Act 1992 (Cth); and
  • an ability to issue civil penalties, and seek enforceable undertakings and injunctions for breaches of certain provisions of the Act.

More information can be located on the Office of the eSafety Commissioner's website.

For tips about cyber safety on social networking sites, search engines and on-line games see the Stay Smart Online website. The website contains information about protections against cyber bullying, how to report cyber bullying to in relation to popular internet sites as well as many other useful features, such as explaining information about privacy settings and who has access to social networking sites.

Powers to remove image-based abuse material

The eSafety Commissioner is empowered under the Enhancing Online Safety Act 2015 (Cth) to require the removal of certain image-based abuse material that is shared without consent, and in some instances to take action against the person(s) who shared the image or video without the consent of the person who is the subject of the image or video.

Any person depicted in an intimate image or video which has been shared without their consent can make a complaint to the eSafety Commissioner, as can certain authorised persons, such as a parent/guardian on behalf of a child who is under 16, or a parent/guardian of a person who has a mental or physical incapacity that renders them incapable of managing their own affairs [see s 19A].

Where consent has been given to share the intimate image or video, an objection notice may still be lodged with the eSafety Commissioner. This is different to a complaint [see s 19B]. An objection notice could be lodged, for example, where a person depicted in an intimate image or video initially consented to its sharing, but then changed their mind.

After a person lodges a complaint or objection notice, the eSafety Commissioner can issue a removal notice to the site where the intimate image or video has been published, to the hosting service provider, or to the individual who posted the image or video, requiring the image or video to be removed within 48 hours or within a reasonable time frame [s 44D(1)(g); s 44E(1)(g); s 44F(1)(h)]. Failure to comply with a removal notice may result in a civil penalty, enforceable undertaking or court injunction being sought, see Civil Penalties below.

Civil penalties

The eSafety Commissioner can seek civil penalties in a number of circumstances, which can be enforced in the Federal Court or Federal Circuit Court of Australia. The penalties can be significant. The circumstances where a civil penalty can be sought, and the maximum amount that can be sought, are as follows:

  • where a person has posted or threatened an intimate image of a person online without their consent [s 44B]. Maximum penalty is $105 000 for an individual or $525 000 for a body corporate;
  • where a person, website, or hosting service provider has failed to comply with a removal notice issued pursuant to ss 44D, 44E or 44F [s 44G]. Maximum penalty is $105 000 for an individual or $525 000 for a body corporate;
  • where a person has been given a written remedial direction, that is, has been required to take specific action to ensure they do not contravene section 44B again, but has failed to adhere to the direction [s 44K(3)]. Maximum penalty is $105 000 for an individual or $525 000 for a body corporate.

In circumstances where a person has breached section 44B, section 44G or section 44K, they may be given a formal warning prior to a civil penalty being sought [see ss 44C, 44H and 44I]. An infringement notice may also be issued for any breaches of those sections [s 46A(1)]. In addition to seeking civil penalties, the eSafety Commissioner is also able to seek an enforceable undertaking or injunction from the Federal Court or Federal Circuit Court of Australia [ss 47 and 48].

The sharing of intimate images may also be a criminal offence under either State of Commonwealth law. For information on criminal offences relating to image-based abuse, see Distribution of Invasive Images ('Revenge Porn').

Unlawful Threats

What is a threat?

A threat is any communication indicating an intention to do harm. It can be communicated directly or indirectly either by words (whether written or spoken) or by conduct, or a combination of both [Criminal Law Consolidation Act (SA) s19 (3)]. For example, driving a motor vehicle at high speed on the wrong side of the road and stopping just short of another car can constitute a threat [see South Australian Police v Bednarz (SASC, 17 February 1995, Jud No S4959, unreported)].

In determining whether words or actions constitute a threat there is a difference between an intention to cause harm, and someone who is merely “sounding off” who does not intend to create any fear. For example a statement 'I feel like I could kill my husband' could be interpreted as an expression of emotions, whereas 'I want to kill my husband' is a threat to do harm.

The threat does not need to be directed at the person who heard it (see for example Carter v R (1994) 176 LSJS 112).

Threaten death

It is an offence if a person, without lawful excuse:

  • threatens to kill or endanger the life of another; and
  • intends to create a fear that the threat will be carried out, or is recklessly indifferent to whether such a fear was created.

Maximum penalty:

  • Basic offence: 10 years imprisonment
  • Aggravated offence: 12 years imprisonment is the maximum penalty.

    Examples of aggravated offences include where the victim is a child or a spouse of the defendant, or where the offence was committed intending to prevent the victim from taking legal proceedings.

[s 19(1) Criminal Law Consolidation Act 1935 (SA)]

Threaten Harm

It is an offence where a person, without lawful excuse:

  • threatens to cause harm to another;
  • intending to create a fear that the threat will be carried out, or is recklessly indifferent to whether such a fear was created.

Maximum penalty:

  • Basic offence: 5 years imprisonment.
  • Aggravated offence: 7 years imprisonment.

[Criminal Law Consolidation Act 1935 (SA) s 19(2)]

Threats to damage property

It is also an offence to make threats against the property of a person.

Maximum penalty:

  • Basic offence: 5 years imprisonment.
  • Aggravated offence: 7 years imprisonment.
  • Aggravated offence by threat to commit arson: 15 years imprisonment.

[Criminal Law Consolidation Act s 85(4)].

See also: Arson and property damage.

Dishonest communication with a child

It is an offence for a person aged 18 years and over to use deceptive means in order to meet or arrange to meet a child.

A person aged 18 years or over who:

  • knowingly communicates with a child; and
  • makes a false representation that they are younger than they are, or that they are someone other than who they are; and
  • meets or arranges to meet with the child

is guilty of an offence. Maximum penalty: imprisonment for 5 years.

See section 139A(1) of the Criminal Law Consolidation Act 1935 (SA).

Further, a person who engages in the above conduct AND with the intent to commit an offence against the child will be guilty of an offence. Maximum penalty: imprisonment for 10 years [see s 139A(2)].

The definition of a child for these offences is any person under the age of 17 years.

What is an aggravated offence?

An aggravated offence will attract harsher penalties in recognition of the circumstances of the offending. Under the Criminal Law Consolidation Act 1935 (SA) there are many circumstances of aggravation. Many of these can be found in s 5AA of that Act, others are peculiar to the specific offence. At least one circumstance of aggravation must be proved beyond reasonable doubt for the offence to be an aggravated offence.

Some examples of circumstances of aggravation are where:

  • the offence was committed in the course of deliberately and systematically inflicting severe pain on the victim;
  • the offender used, or threatened to use, an offensive weapon to commit the offence;
  • the offender committed the offence against a police officer, prison officer or other law enforcement officer who was acting in their official duty or in retribution for something done by them in their official duty;
  • the victim was working in a prescribed occupation (e.g. passenger transport worker, emergency worker or medical staff in hospitals) and performing their duties at the time of the offence;
  • the offender committed the offence intending to prevent or discourage a victim from taking legal proceedings or in retribution for a victim having taken legal proceedings;
  • the offender knew that the victim was under the age of 14 (for a child pornography offence) or in any other case, under 12 years of age;
  • the offender knew the victim was over the age of 60;
  • the victim was a close family member of the offender;
  • the offender committed the offence for the benefit of a criminal organisation;
  • the victim was in a position of particular vulnerability because of physical disability or cognitive impairment;
  • the offender abused a position of authority or of trust in committing the offence.

[See further s 5AA Criminal Law Consolidation Act (SA) and relevant offence provision that the offending relates to.]

Elder abuse

Elder abuse is any action, or lack of action, deliberate or unintentional, which causes distress, harm, or serious risk of harm to an older person, or loss or damage to property or assets.

Information about elder abuse, and its signs and effects, is available on the South Australian Health website:www.sahealth.sa.gov.au/safeguardrights

See also : www.sahealth.sa.gov.au/stopelderabuse and the SA Elder Abuse Prevention Phone Line number: 1800 372 310

Types of elder abuse

Indirect abuse

Elder abuse can be indirect, for example threats to harm someone the victim is close to and this causes the victim dist distress.

Similarly, a person commits an act of abuse if they:

  • cause someone else to abuse the victim
  • allow someone else to abuse the victim
  • cause or allow someone to participate in an act of abuse

Emotional and psychological abuse

Emotional or psychological harm includes:

  • unlawful deprivation of liberty
  • driving a vehicle in a reckless manner while the vicitm is a passenger
  • causing the death of, or injury to, an animal
  • entering or interfering with property in your possession, or causing property damage
  • threatening to institutionalise a person
  • threatening to cause a person physical injury, or emotional or psychological harm
  • unreasonably denying financial, social or domestic autonomy
  • directing racial or other derogatory taunts at a person.

Unreasonable and non-consensual denial of financial, social or personal autonomy

Examples of unreasonable and non-consensual denial of financial, social or personal autonomyinclude:

  • denying a person the financial autonomy they would have had but for the abuse
  • withholding financial support necessary for meeting reasonable living expenses where a person is dependent on the financial support to meet those living expenses
  • causing a person, through coercion or deception to: relinquish control over assets or income; or claim social security payments; or sign a contract of guarantee or sign a power of attorney enabling your finances to be managed by another person
  • preventing a person from seeking or keeping employment
  • preventing a person from making or keeping connections with your family, friends or cultural group, from participating in cultural or spiritual ceremonies or practices or from expressing your cultural identity
  • exercising an unreasonable level of control and domination over another's daily life.

Offences against property

Theft and Receiving

Theft (and receiving)

A person is guilty of theft if the person deals with property dishonestly and without the owner's consent. The person must also intend either to deprive the owner permanently of the property, or to make a serious encroachment on the owner's proprietary rights [s 134(1) Criminal Law Consolidation Act 1935 (SA)].

Receiving stolen property (receiving) from another is punishable as a form of theft [s 134(5)]. If a person is charged with receiving, the court may, if satisfied beyond reasonable doubt that the defendant is guilty of theft but not that the theft was committed by receiving stolen property from another, find the defendant guilty of theft [s 134(6)].

A person may commit theft of property that has come lawfully into his or her possession. An example is theft of property by an employee [s 134(3)(a)].

A person may commit theft of property by the misuse of powers that are vested in the person as agent or trustee or in some other capacity that allows the person to deal with the property [s 134(3)(b)].

Maximum penalty:

Basic offence: imprisonment for 10 years

Agravated offence: imprisonment for 15 years.

[Criminal Law Consolidation Act 1935 (SA) s 134]

Definitions in relation to theft offences

Dishonesty

A person's conduct is dishonest if the person acts dishonestly according to the standards of ordinary people and knows that he or she is acting dishonestly.

The conduct of a person who acts in a particular way is not dishonest if the person honestly but mistakenly believes that he or she has a legal or equitable right to act in that way. The question whether a defendant's conduct was dishonest according to the standards of ordinary people is a question of fact to be decided according to the jury's own knowledge and experience (or the judge's, if there is no jury).

A defendant who is willing to pay for property involved in an alleged offence can still be found to be dishonest.

A person does not act dishonestly if they find property and deal with it in the belief that the identity or whereabouts of the owner cannot be discovered by taking reasonable steps, as long as they are not under a legal or equitable obligation with which the retention of the property is inconsistent.

A person who asserts a legal or equitable right to property that he or she honestly believes to exist does not, by so doing, deal dishonestly with the property.

[Criminal Law Consolidation Act 1935 (SA) s 131]

Serious encroachment

There are two ways of seriously encroaching on someone's proprietary rights.

The first is where a person intends to treat the property as their own to dispose of regardless of the owner's rights.

The second form of serious encroachment is where a person intends to deal with the property in a way that creates a substantial risk (of which the person is aware) that the owner will not get it back, or that, when the owner gets it back, its value will be substantially impaired.

[Criminal Law Consolidation Act 1935 (SA) s 134(2)]

General deficiency

A person may be charged with, and convicted of, theft by reference to a general deficiency in money or other property. In such a case, it is not necessary to establish any particular act or acts of theft [Criminal Law Consolidation Act 1935 (SA) s 136].

It is generally applicable to certain offences, such as embezzlement, and as a result the prosecution do not have to prove a specific amount of money was stolen by the accused. Instead they can rely on a deficiency as proved by the accounts or records made by the accused.

Unlawful possession of personal property

It is an offence for a person to have goods in his or her possession which police reasonably suspect have been unlawfully obtained.

It is a defence to prove, on the balance of probabilities, that the person took possession of the property honestly.

Unlawful possession is generally charged when a person has suspected stolen goods in their possession but the prosecution are unable to establish that they are responsible for the theft itself.

Maximum penalty: 2 years imprisonment or $10 000

[Summary Offences Act 1953 (SA) s 41]

Robbery

If force is used or threatened in order to commit a theft, the offence becomes the more serious charge of robbery. A person who commits theft is guilty of robbery if the person uses, or threatens to use, force against another in order to commit the theft or to escape from the scene of the offence [Criminal Law Consolidation Act 1935 (SA) s 137(1)(a)]. The force or threat must occur at the time of, or immediately before or after, the theft [s 137(1)(b)].

If two or more people jointly commit robbery in company, each is guilty of aggravated robbery [s 137(2)].

Maximum penalty:

Basic offence: imprisonment for 15 years.

Aggravated offence: imprisonment for life.

Deception

Deception

Deception can be done by words or conduct. It is a misrepresentation:

  • about a past, present or future fact or state of affairs; or
  • about yours or others intentions; or
  • of the law.

[s 130 of the Criminal Law Consolidation Act 1935 (SA)]

It is an offence to intentionally deceive someone to dishonestly benefit yourself or another person, or to cause a detriment to someone.

Maximum penalty

Basic offence: imprisonment for 10 years

Aggravated offence: imprisonment for 15 years

[Criminal Law Consolidation Act 1935 (SA) s 139]

Acting as a spiritualist medium etc with intent to defraud

It is an offence for person, who, with an intent to defraud, purports to act as a spiritualist, medium, clairvoyant, telepathist or have similar powers.

Maximum penalty: $10 000 or imprisonment for 2 years.

[Summary Offences Act 1953 (SA) s 40]

Dishonest interference with merchandise

A person who dishonestly interferes with merchandise (things for sale in a store), or a label attached to merchandise, so that the person or someone else can get the merchandise at a reduced price, is guilty of an offence.

Maximum penalty: imprisonment for 2 years.

[Criminal Law Consolidation Act 1935 (SA) s 143]

Cheating at Gambling

Corrupt conduct

The following are offences under the Criminal Law Consolidation Act 1935 (SA):

Intending to obtain financial advantage or create disadvantage through:

  • Engaging in conduct that corrupts betting outcome of event [s 144H];

  • Facilitating conduct that corrupts betting outcome of event [s 144I]; or

  • Encouraging a person to conceal conduct or an agreement from a relevant authority (such as police or an official supervisor of an event), that corrupts a betting outcome [s 144J].

    Maximum penalty: 10 years imprisonment.

Use of information

The use of corrupt conduct information or inside information for betting purposes is also an offence under the Criminal Law Consolidation Act 1935 (SA) [s 144K].

Corrupt conduct information is information about conduct, or proposed conduct, that corrupts a betting outcome of an event [s 144K(3)(a)].

Inside information is information in connection with an event that is not generally available, and if it was available, would be likely to influence people who commonly bet on the event [s 144K(3)(b)].

A person who has corrupt conduct information [s 144K(1)] or inside information [s 144K(2)] and:

  • uses it to bet on; or
  • encourages another to bet on; or
  • communicates the information to someone they should know would likely bet on;

an event that the information is relevant to, is guilty of an offence. For corrupt conduct information the maximum penalty is 10 years imprisonment, for inside information the maximum penalty is two years imprisonment.

Passing valueless cheques

Any person who obtains any goods, money, credit, benefit or advantage by passing a cheque which is not paid on presentation is guilty of an offence.

Maximum penalty: 2 years imprisonment or $10 000 fine

[Summary Offences Act 1953 (SA) s 39(1)].

A defence exists to this offence if a person can show that at the time he or she had reasonable grounds for believing the cheque would be paid in full on presentation and he or she had no intent to defraud [s 39(2)]. The fact that at the time when the cheque was passed there were some funds to the credit of the account on which the cheque was drawn is not of itself a defence [s 39(3)].

Using a motor vehicle without consent

Driving, using (even as a passenger), or interfering with a motor vehicle knowing that such use is without the owner's consent is an offence [Criminal Law Consolidation Act 1935 s 86A].

Maximum penalty:

For a first offence: imprisonment for 2 years

For a second offence: imprisonment for 4 years (a minimum of three months)

Additional penalty:

A person convicted of illegal use of a motor vehicle will also be disqualified from driving for at least twelve months. This applies to both first and subsequent offences [s 86A(2)]. The person may also be ordered to pay compensation to the owner of the motor vehicle [s 86A(5)].

Serious criminal trespass

Serious criminal trespass occurs if a person enters or remains in a place (other than a place that is open to the public) as a trespasser with the intention of committing an offence involving theft, or against a person (such as assault), or against property punishable by imprisonment for 3 years or more (such as arson) [s 168 Criminal Law Consolidation Act 1935 (SA)].

Maximum penalties:

Serious criminal trespass – non-residential buildings

Basic offence: 10 years imprisonment

Aggravated offence: 20 years imprisonment

[Criminal Law Consolidation Act 1935 s 169]

Serious criminal trespass – places of residence

Basic offence: 15 years imprisonment

Aggravated offence: imprisonment for life

[Criminal Law Consolidation Act 1935 s 170]

Aggravating factors of serious criminal trespass in a place of residence

An offence is aggravated if committed in any of the circumstances that generally give rise to aggravation [s 5AA]; or if another person is lawfully present and the offender knows of the other's presence or is reckless about whether anyone is in the place [s 170(2)].

Criminal trespass – place of residence

There is a lesser offence of criminal trespass – place of residence (if another person is lawfully present and the offender knows of the other's presence or is reckless about whether anyone is in the place).

Maximum penalty:

Basic offence: 3 years imprisonment

Aggravated offence: 5 years imprisonment

[Criminal Law Consolidation Act 1935 s 170A]

Arson and property damage

Damage building or motor vehicle by fire or explosive

It is an offence to intentionally or recklessly damage another person's property (building or motor vehicle), using fire or explosives.

Maximum penalty: Life imprisonment

[Criminal Law Consolidation Act 1935 (SA) s 85(1)]

Causing a bushfire

There is a separate offence where a person intentionally or recklessly causes a bushfire, burning vegetation on land which is not that person's land or land of a person who authorised the lighting of the original fire.

Maximum penalty: imprisonment for 20 years

[Criminal Law Consolidation Act 1935 (SA) s 85B]

Damage building or motor vehicle other than by fire or explosive

It is also an offence to intentionally or recklessly damage another person's property (building or motor vehicle), in any another way (other than by fire or explosives).

Maximum penalty: 10 years imprisonment

[Criminal Law Consolidation Act 1935 (SA) s 85(2)]

Damage property other than building or motor vehicle

It is an offence to intentionally or recklessly damage another person's property (other than a building or motor vehicle).

Maximum penalty: 10 years imprisonment

[Criminal Law Consolidation Act 1935 (SA) s 85(3)]

Threat to damage property

It is also an offence tothreaten to damage another person's property intending to create fear that the threat will be carried out or being recklessly indifferent to the creation of fear.

Maximum penalty:

Basic offence: 5 years imprisonment

Aggravated offence: 7 years imprisonment

Offence aggravated by a threat to commit arson: 15 years imprisonment

[Criminal Law Consolidation Act 1935 (SA) s 85(4)]

Recklessly endangering property

It is an offence to do something knowing that it creates a substantial risk of serious property damage to someoneelse's property.

It is a defence if the accused can prove they held an honest belief that the act was reasonable and necessary for the protection of life or property.

Maximum penalty: 6 years imprisonment

[Criminal Law Consolidation Act 1935 (SA) s 85A]

Graffiti

Graffiti

Under the Graffiti Control Act 2001 (SA) and the Graffiti Control Regulations 2013 (SA) ‘graffiti implements’ include cans of coloured (non transparent) spray paint and permanent (indelible) markers or pens with a tip of 8mm or more [s 3; reg 4].

Sale to a minor

A person must not sell a graffiti implement to a minor [Graffiti Control Act 2001 (SA) ss 5(1), 5(2)].

Maximum penalty: $5000 ($2500 for spray paint cans).

A defence to this charge is that the defendant, or someone acting on their behalf, required the minor to produce identification; and they provided false evidence to that requirement; and as a consequence the defendant reasonably believed that the person was 18 years or older [s 5(3)].

It is also a defence to the charge of sale of a spray paint can to a minor [s 5(2)], that the defendant believed on reasonable grounds that the minor intended to use the spray paint lawfully as part of their occupation, education or training; or artistic activity; or in construction, renovation, restoration or maintenance (providing that these activities are not offences against and Act).

A notice stating that it is unlawful to sell graffiti implements to minors, in the form proscribed by legislation [s 6], must be on display where graffiti implements are sold. A copy of the proscribed notice on the South Australian Attorney General’s website: ‘Note of warning.’

A person selling graffiti implements from retail premises must ensure that such implements are kept in a securely locked cabinet, such that members of the public are not able to gain access to the implements without assistance [Graffiti Control Act 2001 (SA) s 4(1)].

Maximum penalty: $2 500 (Expiation fee: $210)

It is an offence to advertise graffiti implements for sale in a way that is likely to encourage or promote unlawful graffiti [s 6A].

Maximum penalty: $5000

Marking graffiti

Under the Graffiti Control Act 2001 (SA) ‘marking graffiti’ includes defacing property in anyway [s 3]. A person who marks graffiti is guilty of an offence [Graffiti Control Act 2001 (SA) s 9(1)].

Maximum penalty: $5000 or imprisonment for 12 months

A person who marks graffiti within a cemetery, or within a public memorial, or on or within a place of public worship or religious practice, is guilty of an offence [Graffiti Control Act 2001 (SA) s 9(1a)].

Maximum penalty: $7500 or imprisonment for 18 months

A person who aids, abets, counsels or procures the commission of the offence of marking graffiti is liable to be prosecuted and punished as a principal offender.

A court finding a person guilty of an offence against this section must if a suitable program exists for the removal or obliteration of graffiti, and if reasonably practicable, order the person to remove or obliterate the graffiti under supervision; or, in any other case order the person to pay compensation to the owner or occupier of the property [s 9(3)]. Additionally, if the graffiti is in a public place or on public property a court can order that the person pay a reasonable amount to any person who has removed or obliterated the graffiti [s 9(3a)].

Carrying graffiti implements

A person who carries an implement with the intention of using it to mark graffiti, or carries a graffiti implements (that are capable of spraying paint or similar or implements designed or modified to produce a mark that is more than 15mm wide and not readily removable by wiping or by use of water or detergent ) without lawful excuse in a public place or a place on which the person is trespassing or has entered without invitation, is guilty of an offence [Graffiti Control Act 2001 (SA) s 10].

Maximum penalty: $5000 or imprisonment for 12 months.

Offences against police

The police should be protected while they reasonably are carrying out their official duties, and courts have regarded offences against the police, especially the offence of assaulting police, as serious.

A person convicted of committing such an offence will often receive a prison sentence.

Under s 5AA(1)(c) of the Criminal Law Consolidation Act 1935 (SA) an offence is aggravated if the offender committed the offence gainst a police officer, prison officer or other law enforcement officer knowing that the victim was acting in the course of her or his official duty; or in retribution for something the offender belived to have been done by the victim in the course of her or his official duty.

Assaulting a police officer

Assaulting a police officer

A person commits this offence when they assault a police officer knowing the officer was acting in the course of their duty or in retribution for something the police officer has done in the course of their duty.

There are two different offences of assaulting a police officer under South Australian legislation and the police may choose which offence they are to charge an offender with.

Maximim penalty:

Under the Criminal Law Consolidation Act 1935 (SA) it is Assault (aggravated offence) attracting a maximum penalty of 3 years imprisonment [s 20]. Where harm is caused the maximum penalty increases to 4 years imprisonment (with a maximum penalty of 5 years if a weapon is involved).

Alternatively, the police may charge an offender for assaulting a police officer under s 6 of the Summary Offences Act 1953 (SA). The maximum penalty in this case is a fine of up to $10 000 or imprisonment for 2 years, compensation can also be ordered to be paid to the victim.

Hindering and resisting police

Another offence under section 6 of the Summary Offences Act 1953 (SA) is hindering police. A person who resists or hinders police in the excecution of the officer's duty is guilty of an offence.

Maximum penalty: $2500 or imprisonment for 6 months, compensation can also be ordered to be paid to the victim.

The scope of a police officer's duty has been widely interpreted by the courts. Police officers must take all lawful steps that seem necessary to them for keeping the peace, preventing crime, and protecting people or property from criminal injury or damage. This applies whether the officer is rostered for work or not.

However, where the police officer's actions are outside of that duty, or the officer acts illegally, a charge under this section cannot succeed. For example, a police officer who uses more force than is reasonably necessary to arrest a suspect is not acting in the execution of his or her duty.

Hinder means any obstruction or interference that makes a police officer's duty more difficult to perform. It includes, but is not limited, to physical obstruction. For example, a person who deliberately stands in the way of police officers or who argues with them when they are trying to arrest another person may be guilty of the offence of hindering police.

Unlike hinder, resistrequires actual physical resistance. Simply not doing what a member of the police force asks, or arguing about it, does not mean that a person resists. However, the physical resistance need not necessarily be an assault - for example, the action of pulling away from an officer's grasp may be enough.

Sometimes there can be no clear distinction between assaulting, hindering and resisting. These charges are often laid in situations where there is fighting and confusion and are used by the police to remove people from the area and to restore order. Hindering is often charged when a third person intervenes in an arrest of a person. Resist on the other hand, is often charged when someone resists a lawful arrest.

Bribing a police officer

It is an offence to give, offer, or promise a bribe or other inducement to a police officer to try to persuade the police officer to neglect, or fail to carry out, his or her duties.

Maximum penalty: $10 000 or imprisonment for two years.

[Summary Offences Act 1953 (SA) s 61]

Dangerous driving to escape police pursuit

Under s 19AC of the Criminal Law Consolidation Act 1935 (SA) it is an offence to drive a motor vehicle negligently, recklessly or at a speed or in a manner that is dangerous to any person in order to escape pursuit by a police officer or to cause a police officer to engage in a pursuit.

Penalty:

Mandatory driver's licence disqualification for a minimum of 2 years in addition to the maximum penalty:

Basic offence: 3 years imprisonment

Aggravated offence: 5 years imprisonment*

* An aggravated offence in this instance means that at the time the offence was committed the driver:

  • was driving or using a motor vehicle that was stolen or being driven without the consent of the owner of the vehicle and the driver knew or was reckless about this;

  • was driving a motor vehicle knowing that he or she was disqualified from holding or obtaining a driver’s licence or that his or her licence was suspended;

  • was driving with a blood alcohol concentration of 0.08 grams of alcohol in 100 millilitres of blood; and/or

  • was driving a motor vehicle in contravention of s 47 (driving under the influence) or s 47AB (driving with a prescribed drug in oral fluid or blood) of the Road Traffic Act 1961 (SA).

False reports to the police

A person who makes a false representation (an untrue report), knowing that it is false and that it will probably be investigated by the police (or to another person, knowing that it will be passed on to the police), is guilty of an offence.

Maximum penalty: $10 000 or 2 years imprisonment.

The court can also order the defendant to pay a reasonable amount towards the expenses of any investigation made by the police as a result of the false report. This can be very expensive.

[Summary Offences Act 1953 (SA) s 62]

Similar penalties are imposed for creating a false belief that an offence has been committed or life has been lost or endangered [s 62A].

Shooting at a police officer

A person who discharges a firearm intending to hit a police officer or being reckless as to whether a police officer is hit is guilty of an offence.

Maximum penalty: 10 years imprisonment

[Criminal Law Consolidation Act 1935 (SA) s 29A]

Where the conduct causes serious harm the maximum penalty is 25 years imprisonment (or more on application by the Director of Public Prosecutions) [Criminal Law Consolidation Act 1935 (SA) s 29A(1)(b) - (2)].

Offences against public order and similar offences

Loitering

Loitering

Police officers may ask a person to stop loitering in a public place (in other words, to leave the place) where they believe on reasonable grounds:

  • that an offence has been, or is about to be, committed by the person or by others in the vicinity (as more usually happens);
  • that a breach of the peace has occurred, is occurring, or is about to occur, in the vicinity of the person or group;
  • that there is, or is about to be, an obstruction to pedestrians or traffic caused by the presence of the person or of others in the vicinity; or
  • that the safety of a person in the vicinity is in danger.

A person who does not obey a police request to stop loitering commits an offence.

Maximum penalty: $1250 or 3 months imprisonment.

[Summary Offences Act 1953 (SA) s 18]

Additional loitering offence for prescribed class

If a police officer has reasonable grounds to suspect someone loitering in a public place is of a prescribed class, the officer can request that the person state the reason that they are there. In doing so the officer has to tell the person that a request is being made under section 18 of the Summary Offences Act (SA) and what prescribed class the person belongs to.

Prescribed class includes: people who have been found guilty of a serious and organised crime offence; are a proscribed drug offender; have a firearms or weapons prohibition order; are subject to a control order, non-association order, place restriction order, paedophile restraining order or consorting prohibition notice; or otherwise prescribed under regulations.

Failure to provide a satisfactory reason for being in that place is an offence.

Maximum penalty : $5000 or 3 months imprisonment.

[Summary Offences Act 1953 (SA) s 18(3)-(7)]

See also consorting offences in the Law Handbook under - Serious and Organised Crime - Consorting

Disorderly behaviour offences

Disorderly behaviour

A person who, in a public place or a police station: behaves in a disorderly or offensive manner; or fights with another person; or uses offensive language; or disturbs the public peace, is guilty of an offence.

Disorderly or offensive behaviour includes riotous, threatening, abusive or insulting behaviour, for example, being abusive to others in the street or smashing beer bottles on the road.

Public place includes places with free access to the public, or which the public are addmitted to on payment of money, or roads, streets, thouroughfares etc that the public are allowed to use, even if they are on private property, and for the purpose of this section of the Summary Offences Act 1953 (SA), also includes any licensed premises or a ship or vessel.

Maximum penalty : $1 250 or 3 months imprisonment.

[Summary Offences Act 1953 (SA) s 7(1) and 7(2)]

Violent disorder

It is an offence of violent disorder when three or more people present together use or threaten unlawful violence, and the conduct of them taken together would cause a person (of reasonable firmness) to fear their personal safety.

  • This offence may be committed in both private and public places.
  • A person must intend to use or threaten violence or is aware that his or her conduct may be violent or threaten violence.
  • Violence for the purposes of this offence can include violent conduct towards property as well as a person.

Maximum penalty: $10 000 or 2 years imprisonment.

[Summary Offences Act 1953 (SA) s 6A]

Affray

A person has committed the offence of affray when they use or threaten violence towards another and their conduct would cause a person (of reasonable firmness) to fear for their personal safety.

This may involve more than one person, and when it does, the behaviour of all people is considered when determining its effect.

  • This offence can be committed in a public or private place.
  • A person must intend to use or violence or is aware that his or her conduct may be violent or threaten violence.
  • The threat here can not be made by words alone and must include conduct.
  • No person of reasonable firmness need actually be, or likely to be, at the scene. This means, for example, that incidents captured on surveillance camera where no members of the public are present can still be prosecuted.

An example of an affray is a fight between two or more people with a level of violence that puts an innocent bystander in substantial fear (not just a passing concern) for their personal safety.

Maximum penalty:

Basic offence: 3 years imprisonment

Aggravated offence: 5 years imprisonment

[Criminal Law Consolidation Act 1935 (SA) s 83C]

Riot

The offence of Riot is committed when 12 or more people are present together and use or threaten unlawful violence for a common purpose, and that the conduct of them would cause a person (of reasonable firmness) present at the scene to fear their own personal safety.

  • This offence can be committed in a public or private place.
  • Common purpose can be inferred by conduct but the person needs to intend to use violence or is aware that their conduct may be violent.
  • No person of reasonable firmness need actually be, or likely to be, at the scene.
  • A person must intend to use or violence or is aware that his or her conduct may be violent.
  • Violence for the purposes of this offence can include violent conduct towards property as well as a person.
  • If at trial a jury is not satisfied that the accused is guilty of this offence but is satisfied that the accused is guilty of the offence of Violent disorder under s6A of the Summary Offences Act 1953 (SA), they can bring in a guilty verdict of the lesser offence of Violent disorder.

Maximum penalty:

Basic offence: 7 years imprisonment

Aggravated offence: 10 years imprisonment

[Criminal Law Consolidation Act 1935 (SA) s 83B]

Being drunk in a public place

It is not an offence to be drunk in a public place.

Under the Public Intoxication Act 1984 (SA), the police may apprehend (take) a person, who they reasonably believe to be under the influence of drugs or alcohol in a public place, into custody and take the person home or to a police station or a sobering up centre if, because of their intoxication, they are unable to care for themselves [s 7(1)].

Such force as is reasonably necessary may be used by police and they have the power to search the person for the purpose of removing any object that may be a danger to the person or others [s 7(2)].

Despite the above this is not an arrest and there are limits on how long a person may be detained for the purpose of sobering up.

A person may not be kept at a police station for longer than 12 hours (and must be released sooner if sober). If the person has failed to sober up in the 12 hour period they must be transferred to a sobering-up centre for admission as a patient. If transferred to a sobering-up centre a person must be discharged either once they have recovered or before the period of 18 hours from the time of apprehension of the person [s 7(4)-(5)].

Whilst in the police station or sobering-up centre the person is taken to be in lawful custody [s 10(1)(a)]. While at either place, the person must be given a reasonable opportunity to contact a lawyer, relative or friend [s 7(8)] and may be discharged to the care of their solicitor, relative or friend if they are willing to properly care for them [s 7(9)].

It is an offence to ill-treat or willfully neglect someone who is detained under this Act for whom they have oversight, care or control.

Maximum penalty: $2000 or 1 year imprisonment [s 11(1)].

Barring persons from licensed premises or casino

Traditionally the power to bar or remove patrons from licensed premises has been left to the licensee of the premises. This was an extension of the common law right of publicans to refuse service.

These powers have been extended to police under the Liquor Licensing Act 1997 (SA).

Under the Act there is both a right to remove or refuse entry and a power to bar a person from licensed premises.

Power to remove or refuse entry

Under section 124 of the Liquor Licensing Act 1997 (SA) a licensee, police officer or approved crowd controller may use reasonable force if necessary to remove a person or prevent entry of a person onto licensed premises if they are intoxicated or behaving in a disorderly or offensive manner.

Offence: A person removed from licensed premises under section 124 who re-enters the premises within 24 hours is guilty of an offence and may be arrested without a warrant.

The maximum penalty for this is $1 250 [s 125C(1)].

Power to bar

There are effectively three types of barring orders and although the consequence of the orders is the same, the basis on which they are issued differ significantly:

  • licensee barring orders (s 125)
  • Commissioner of Police barring orders (s 125A)
  • Police officer barring orders (s 125B)

Licensee barring orders

A licensee (or person responsible for the licensed premises) may serve an order on a person barring them for a specified period.

The grounds on which an order can be made are:

  • if the licensee thinks that the welfare of the person or of a person living with them is seriously at risk as a result of alcohol consumption; or
  • if the person commits an offence or behaves in an offensive or disorderly manner on the licensed premises or in an area adjacent to the licensed premises; or
  • any other reasonable ground.

For the purposes of issuing such an order a police officer may provide a licensee with information about the person.

An order issued on the basis of concern for the welfare of a person or of theirdependant(s) can be for an indefinite or a specified period.

In other cases the following limitations apply:

  • if the person has not previously been barred – for a period not exceeding 3 months (although a longer period may be approved by the Liquor and Gambling Commissioner);
  • if the person has been barred on one previous occasion – for a period not exceeding 6 months (although a longer period may be approved by the Liquor and Gambling Commissioner);
  • if the person has been barred on at least 2 previous occasions – for an indefinite period or any specified period.

Commissioner of Police barring orders

The Commissioner of Police has the power to issue an order barring a person from licensed premises for either an indefinite period of time or a specific time (a barring order) [s 125A].

The ban might be for a specific venue or for licensed premises in a specified area. All that is required is a reasonable ground.

Generally such orders will be issued on the basis of ‘criminal intelligence’ and, if this is the case, then the details of this intelligence will not be disclosed on the order. All that needs be stated on the order is that it would be contrary to the public interest if the person were not barred.

For the purposes of the Act criminal intelligence is any information relating to actual or suspected criminal activity (whether in South Australia or elsewhere), the disclosure of which could reasonably be expected to prejudice criminal investigations, enable the discovery of the existence or identity of a confidential source of information or endanger a person’s life or physical safety.

The intention behind this type of barring order is to ensure that the Commissioner of Police has such powers as are necessary to curb outlaw motorcycle gangs andorganised crime groups from intimidating licensees and using their premises to commit criminal acts.

Police officer barring orders

Barring orders can also be issued by police officers under section 125B. These orders act similarly to the Commissioner of Police barring orders but are generally for a shorter period of time and are usually issued as the result of concerns about a person’s welfare or because of disorderly behaviour.

A police officer may bar a person from entering or remaining on licensed premises if they are satisfied that:

  • the welfare of the person or a person living with them is seriously at risk as a result of the consumption of alcohol; or
  • if a person commits an offence or behaves in an offensive or disorderly manner in licensed premises or an area adjacent to licensed premises; or
  • any other reasonable ground.

Where the ground for issuing the order is that of welfare of the person or a person living with them the order can be for an indefinite or specified period of time.

Where the ground for issuing the order is the commission of an offence, disorderly or offensive behaviour or any other reasonable ground, the order will remain in force:

  • if the person has not previously been barred, for a period not exceeding 3 months;
  • if the person has been barred on one previous occasion, for a period not exceeding 6 months;
  • if the person has been barred on at least two prior occasions, for an indefinite period or a period specified in the order.

Power to require personal details

Police have the power to require that a person state their name and personal details if requested.

Offence: It is an offence to refuse to provide this information or to provide false information [s 125E].

Maximum penalty: $1250

Appealing against a barring order

Where a barring order has been issued against a person they can apply to the licensing authority for a review of the order. Depending on the section of the legislation under which the order was issued the relevant licensing authority will be either the Licensing Court or the Liquor and Gambling Commissioner. This right of review exists only for persons who have been banned for a period exceeding one month.

Casino barring orders

Similar barring orders exist under the Casino Act 1997 (SA).

A general power to bar patrons from gaming areas exists under sections 44 (Licensee’s power to bar), 45 (Liquor and Gambling Commissioner’s power to bar) and 45A (the Commissioner of Police’s power to bar).

Barring orders made by a licensee or the Liquor and Gambling Commissioner may be made on any reasonable ground other than on the ground that the person is placing his/her welfare or the welfare of their dependants at risk through gambling. Orders on the basis of welfare must be made through the Independent Gambling Authority [see Part 4 of the Independent Gambling Authority Act 1995 (SA)].

Orders made by the Commissioner of Police are generally made on the basis of criminal intelligence.

The following time limits apply to an order that is issued:

  • by a licensee – up to 3 months;
  • by the Liquor and Gambling Commissioner – for a specified or an unlimited period;
  • by the Commissioner of Police – for a specified or an unlimited period.

Offence: It is an offence for a barred person to enter or remain in gaming areas contrary to an order and the maximum penalty is $2 500 (ss 44, 45 and 45A].

Where a person is intoxicated or behaving in an abusive, offensive or disorderly manner an agent or employee of the licensee, or a police officer, may exercise reasonable force to prevent them from entering the casino (or to remove them) [s 46].

Unlawfully on premises

A person who is on a premises for an unlawful purpose or without a lawful excuse is guilty of an offence.

Maximum penalty:

$2 500 or 6 months imprisonment; or

where the unlawful purpose was for an offence punishable by a maximum penalty of 2 years or more: 2 years imprisonment.

[Summary Offences Act 1953 (SA) s 17(1)]

Unlawful purpose

A member of the police force who believes, on reasonable grounds, that a person is on premises to commit an offence may order the person to leave the premises. A person who fails to obey such an order is guilty of an offence.

Maximum penalty: $2 500 or 6 months imprisonment [s 17(2)-(3)].

For the purposes of this offence, premises means any land, building, structure, aircraft, vehicle, ship or boat [s 17(4)]. The police must prove that the defendant had no lawful excuse for being on the premises [s 17(1a)].

Trespassing

Trespass

A person on a premises who does not leave immediately when asked by an authorised person (generally the occupier of the premises), or who comes back within the following 24 hours, is guilty of an offence.

Maximum penalty: $2500 or 6 months imprisonment.

[Summary Offences Act 1953 (SA) s 17A].

It is an offence to use offensive language or behave in an offensive manner while trespassing on premises.

Maximum penalty: $1 250

[Summary Offences Act 1953 (SA) s 17A(2)].

It is also an offence for a trespasser to refuse to give his or her name and address when asked by an authorised person.

Maximum penalty: $1 250

[Summary Offences Act 1953 (SA) s 17A(2a)].

Gatecrashing - trespass at private parties

When an uninvited individual or group of individuals "gatecrash" a private party being held on residential premises the occupier of the premises or person organising the party has the right to deal with them under section 17AB of the Summary Offences Act 1953 (SA).

Where the occupier or organiser reasonably suspects that a person is not entitled to attend they can ask the individual to produce evidence of their entitlement to be there. If they fail to satisfy this request and then fails to leave after being requested to do so they can be told that they are a trespasser on the premises and then become trespassers for the purposes of the Summary Offences Act 1953 (SA), s 17AB(2) and the Criminal Law Consolidation Act 1935 (SA), s 15A. If a trespasser fails to leave the premises, or if they trespass again, they will be guilty of an offence.

Maximum penalty: $5000 or 1 year imprisonment.

A trespasser who uses offensive language or behaves in an offensive manner is guilty of a further offence.

Maximum penalty: $2500

It is also an offence for a trespasser to refuse to give their name and address to the occupier/organiser.

Maximum penalty: $2500

[Summary Offences Act 1953 (SA) s 17AB].

A police officer may, upon request of the occupier/organiser, remove a trespasser from the premises if they reasonably suspect that the trespasser is committing one of the above offences [s 17AB(7)].

Playing games as to cause damage

A person who plays any game that is likely to injure a person in a public place or that is likely to damage property is guilty of an offence.

Maximum penalty: $250

[Summary Offences Act 1953 (SA) s 53]

Playing a game on an oval, court or other area set aside for that purpose is not an offence, but playing a game in, say, Rundle Mall invites prosecution. However, the prosecution can only succeed if someone is injured or property is damaged or there is a likelihood or danger that one of those things would happen.

Throwing missiles

A person who throws a missile, without lawful cause, either intending to, or being reckless as to whether they, injure, annoy or frighten any person or damage any property is guilty of an offence

Maximum penalty:

Intentional offences: 2 years imprisonment

Reckless offences: 1 year imprisonment

[Summary Offences Act 1953 (SA) s 51]

Fireworks

A person who throws, sets fire to, or explodes a firework or explosive so as to, or be likely to, injure, annoy or frighten people in a public place.

Maximum penalty: $2500 or 6 months imprisonment

[Summary Offences Act 1953 (SA) s 52]

Dumping rubbish

Anyone who puts any rubbish on land without the owner's or occupier's consent or without some other lawful authority, is guilty of an offence. Landincludes roads, streets, other public places and private land.

Maximum penalty: $750

[Summary Offences Act (SA) s 57(1)]

Whether or not a fine is imposed, the court can order an offender to remove the rubbish within a certain time and, if it is not removed, the offender is liable to a fine of up to $125 and may also be ordered to pay compensation to the owner or occupier of the land for the cost of removing it [Summary Offences Act (SA) s 57(2)-(3)].

In addition to the above, there are penalties under the Local Nuisance and Litter Control Act 2016 (SA) – for further information see Litter Control.

Offences on public transport

A person who does not leave a public passenger vehicle as quickly as possible after being asked to do so is guilty of an offence.

Maximum penalty: $750

The driver or conductor of the vehicle or a police officer can ask the person to leave the vehicle if:

  • before or at the time of entering the vehicle, the person was told by the driver or conductor that it was fully loaded with passengers;
  • the person is drunk and is annoying, or is likely to annoy, a passenger;
  • the person or the person's clothing soils or damages, or is likely to soil or damage, a part of the vehicle or the clothing or belongings of a passenger;
  • the person acts in a noisy, violent or abusive manner, uses obscene or indecent language or drinks intoxicating liquor in the vehicle after having been asked to stop.

The driver, conductor or a police officer can remove the person from the vehicle and ask for the person's name and address and if these are not given, the person commits a further offence that has maximum fine of $750. Proof of the name and address can also be demanded and failure to provide this evidence or giving false evidence is a further offence punishable by a fine of up to $750.

[Summary Offences Act 1953 s 58A]

Assaults on passenger transport workers

Where an assault is committed on a transport worker whilst they are performing their duties this is an aggravated offence under section 5AA(1)(k) of the Criminal Law Consolidation Act 1935 (SA) consistent with offences committed against police officers, hospital and emergency workers. Penalties for aggravated offences are far harsher so, for example, an aggravated charge of assault causing harm can result in a maxium sentence of 5 years. For more serious charges of assault such as causing harm with the intent to cause harm the upper limit can be 25 years imprisonment.

Offences in Major Emergencies, Major Incidents or Disasters

The Government in South Australia has the power to declare Major Emergencies, Major Incidents and Disasters under the Emergency Management Act 2004 (SA) [ss 22-24A]. An example of one of these may be a catastrophic bushfire, flood, storm, earthquake or other emergency situation.

There are some specific offences under the Emergency Management Act 2004 (SA) which include:

  • Failure to comply with directions [s 28]:

    A person must not, without reasonable excuse, refuse or fail to comply with a requirement or direction of the State Co-ordinator (Commissioner of Police) or of an authorised officer given in accordance with this Act during a declared identified major incident, major emergency or disaster.

    Maximum penalty:

    (a) if the offender is a body corporate—$75 000

    (b) if the offender is a natural person—$20 000

  • Obstruction [s 29]

    A person must not hinder or obstruct operations carried out in accordance with this Act.

    Maximum penalty: $10 000

  • Impersonating an authorised officer etc [s 30]

    (1) A person must not falsely represent that he or she is an authorised officer or other person with responsibilities under this Act.

    Maximum penalty: $10 000.

    (2) A person must not, without lawful authority—

    (a) wear any insignia or special apparel issued to an authorised officer for the purposes of this Act; or

    (b) use any special equipment issued to an authorised officer for the purposes of this Act, in circumstances where to do so would lead to a reasonable belief that he or she was an authorised officer.

    Maximum penalty: $10 000.

  • Disclosure of information [s 31]

    (1) An authorised officer may direct a person who the authorised officer reasonably suspects has committed, is committing or is about to commit, an offence against this Act to state the person's full name and usual place of residence and to produce evidence of the person's identity.

    (2) A person to whom a direction is given under subsection (1) must immediately comply with the direction.

    Maximum penalty: $5 000

Declared public precinct offences

Under section 66N of the Summary Offences Act 1953 (SA), the Attorney-General may declare a defined area of one or more public spaces to be a declared public precinct for a period specified in the declaration. An area may not be a declared public precinct for more than 12 hours in a 24 hour period unless the Attorney-General is satisfied that special circumstances exist to warrant it.

Declaration is made by notice in the Gazette and any notice of declaration must be published on a website accessible by the public free of charge.

The first public precinct is an area on the West End of Adelaide CBD. Police generally notify the public about declared public precincts on their website at https://www.police.sa.gov.au/your-safety/declared-public-precincts

Police officers have the power to carry out metal detector and general drug detection searches in declared public precincts [ss 66R, 66S].

Remaining or re-entering after order to leave [s 66O]

It is an offence to remain in a declared public precinct after having been ordered to leave by a police officer, or to re-enter the precinct during the declared public precinct period.

Maximum penalty: $1 250.

Police may use reasonable force to remove a person from a declared public precinct if they fail to leave or re-enter.

Offensive or disorderly conduct [s 66P]

It is an offence to behave in an offensive or disorderly manner within a declared public precinct. Offensive or disorderly conduct under this section does not include behaviour involving violence or a threat of violence.

Maximum penalty: $1 250 [expiation fee: $250].

Offensive weapons and dangerous articles [s 66Q]

It is an offence to carry an offensive weapon or dangerous article within a declared public precinct.

Maximum penalty: $10 000 or 2 years imprisonment.

Failure to comply with barring order [s 66T]

If a person within a declared public precinct commits an offence that may pose a risk to public order or safety, or behaves in an offensive or disorderly manner, a police officer may bar the person from entering or remaining in the precinct for a period of time.

It is an offence for a person to enter or remain in a declared public precinct from which he or she has been barred.

Maximum penalty: $2 500.

Hindering police [s 66U]

It is an offence to hinde ror obstruct a police officer exercising their powers under sections 66R [Power to conduct metal detector searches] or 66S [Power to carry out general drug detection].

Maximum penalty: $2 500 or 6 months imprisonment.

Police powers within public precincts

Within declared public precincts police have the power to:

  • request that people posing a risk to others leave the precinct;
  • search people by metal detector to detect offensive weapons;
  • carry out general drug detection;
  • serve a person posing a risk to others or behaving in a offensive or disorderly manner with an order barring them from entering or remaining in the precinct; and
  • remove minors from the precinct if they are in danger or are behaving in an offensive or disorderly manner.

Failure to comply with police requirements and directions in relation to these powers is an offence.

Summary Offences Act 1953 (SA) Part 14B

Other offences

Prostitution

A prostitute is a person who offers his or her body for fee or reward.

[Summary Offences Act 1953 (SA) s 4]

Soliciting

A person who, in a public place or within the sight or hearing of any person in a public place, accosts or solicits a person for the purpose of prostitution; or loiters in a public place for that purpose, is guilty of an offence.

Maximum penalty: $750

[Summary Offences Act 1953 (SA) s 25]

Employment for prostitution

A person who employs or engages another as a prostitute is also guitly of an offence. This includes advertising or otherwise attempting to persuade another person to work for them as a prostitute.

Maximum penalty:

First offence: $1 250 or 3 months imprisonment

Subsequent offence: $2 500 or 6 months imprisonment

[Summary Offences Act 1953 (SA) s 25A]

Living on the earnings of prostitution

A person who knowingly lives, wholly or in part, on the earnings of the prostitution of another person is guilty of an offence. The fact that a person lives with, or is habitually in the company of, a prostitute and apparently has no other lawful means of support is enough proof for this offence unless the person can prove otherwise.

Maximum penalty: $2 500 or 6 months imprisonment

[Summary Offences Act 1953 (SA) s 26]

Brothels

A person who keeps or manages a brothel, or who receives money paid in a brothel for prostitution, is guilty of an offence.

Maximum penalty:

First offence: $1 250 or 3 months imprisonment

Subsequent offence: $2 500 or 6 months imprisonment

[Summary Offences Act 1953 (SA) s 28]

Leasing accommodation for brothel

A person who lets or sublets premises knowing that the premises are to be used as a brothel, or who permits the premises to be used as a brothel, is guilty of an offence.

Maximum penalty:

First offence: $1 250 or 3 months imprisonment

Subsequent offence: $2 500 or 6 months imprisonment

[Summary Offences Act 1953 (SA) s 29]

Indecency offences

Indecent language

It is an offence to use language that is indecent or profane, or to sing indecent or profane songs in a public place, a police station; or which can be heard from a public place or neighbouring property.

It is also an offence to use language that is indecent or profane, or to sing indecent or profane songs in any place if you intend to offend or insult any person.

Language is indecent if it is highly offensive to the recognised standards of common propriety. This offence is not designed for the special protection of those who are easily shocked.

Maximum penalty: $250

[Summary Offences Act 1953 (SA) s 22]

Indecent behaviour

A person who behaves in an indecent manner in a public place, while visible from a public place, or in a police station; or so as to offend or insult anyone is guilty of an offence.

Maximum penalty: $1 250 or 3 months imprisonment

[Summary Offences Act 1953 (SA) s 23(1)]

An example of this sort of behaviour is indecently exposing oneself in a public place. However, it is not an offence to be naked in an area, or in waters adjacent to an area, reserved for nude bathing [Summary Offences Act 1953 s 23A].

Gross indecency

A person who, in a public place or while visible from a public place or from occupied premises, wilfully does a grossly indecent act, whether alone or with another person, is guilty of an offence.

Maximum penalty: $2 500 or 6 months imprisonment

[Summary Offences Act 1953 (SA) s 23(2)]

For offences of gross indecency in the presence of a person aged under the age of 16 years, see SEXUAL OFFENCES]

Indecent filming

It is an offence to film another person in a state of undress in circumstances in which a reasonable person would have an expectation of privacy [see Summary Offences Act 1953 (SA) s 26D(1)].

It is a defence to a charge of indecent filming if either of the following can be established:

  • the filming occurred with the consent of the person filmed; or
  • it was undertaken by a licenced investigation agent in the course of obtaining evidence in connection with a claim for compensation, damages, a payment under a contract or some other benefit.

Consent will not be effective if given by a person under the age of 17 or with a cognitive impairment, or if obtained from a person by duress or deception [see s 26E(1)].

Maximum penalty:

Where the person filmed was under the age of 17 - $20 000 or 4 years imprisonment; in any other case - $10 000 or 2 years imprisonment.

It is a further offence for a person to distribute images obtained by indecent filming [see s 26D(3)].

It is a defence if one or more of the following can be proved that:

  • the person filmed consented to that particular distribution of the image; or
  • the person filmed consented to distribution of the image generally; or
  • the defendant did not know, and could not reasonably have been expected to know, that the indecent filming was without the person's consent; or
  • that the indecent filming was undertaken by a licenced investigation agent in the course of obtaining evidence in connection wtih a claim for compensation, damages, a payment under a contract or some other benefit.

Maximum penalty:

Where the person filmed was under the age of 17 - $20 000 or 4 years imprisonment; in any other case - $10 000 or 2 years imprisonment.

See also Pornography - Distribution of invasive images.

Urinating or defecating in a public place

It is an offence to urinate or defecate in any public place (in a municipality or town) that is not specifically made for that purpose.

Maximum penalty: $250

Expiation fee: $80

[Summary Offences Act 1953 (SA) s 24].

Tattooing, body modification and body piercing

Part 4 of the Summary Offences Act 1953 (SA) regulates body piercing and body modification such as tattooing:

Except where the tattoo is made for medical reasons and is performed or administrated by a doctor, nurse or dentist, it is an offence to perform a body modification procedure on a person under the age of 18 [s 21R]. It is also an offence to perform such a procedure on an intoxicated person [s 21Q]. However, it is a defence to a charge if the person performing the procedure can prove that at the time of the offence, they actually believed, and had reasonable cause to believe, that the person, for s 21R, was an adult; or for s 21Q, was not intoxicated.

Maximum penalty: $5 000 fine or 12 months imprisonment

Body modification procedure means—

  • tattooing; and
  • body branding; and
  • body implantation; and
  • earlobe stretching; and
  • tongue splitting; and
  • body scarification; and
  • any other procedure prescribed

    [Summary Offences Act 1953 (SA) s 21P]

A person must not sell body modification equipment (for example, ear stretching tapers) to a person under the age of 18 [s 21T].

Maximum penalty: $2 500 fine

A person must not perform any intimate body piercing on a person under the age of 18, or any other body piercing on a person under the age of 16 without first obtaining the consent of the minor’s guardian [s 21R(2)(b)].

Maximum penalty: $5 000 fine or 12 months imprisonment

Consent, referred to above, for under 16 year olds, must be given in person or in writing, in the prescribed form, verified by statutory declaration [s 21S(1)(b)(ii)].

Maximum penalty: $5 000, Expiation fee: $315

Providing false information about age or consent of a minor or guardian is also an offence under the Act [s 21W].

Maximum penalty: $2 500

The Act requires those who offer piercing and body modification services for sale to display prescribed information [s 21U] and to keep records [s 21 V].

Maximum penalty: $1 250, Expiation fee: $160

Prescribed information is set out in the Summary Offences Regulations 2016 (SA).

Tattoo Industry Control

Under the Tattooing Industry Control Act 2015 (SA) some people are automatically prohibited from providing tattooing services, and additionally, the Commissioner for Consumer Affairs can disqualify a person from providing tattooing services.

Tattooing services is defined broadly and includes owning the business or even tattooing someone for no fee or reward [s 4].

The main groups automatically disqualified under the Act include:

  • Members or close associates of a member of declared organisations, people under control orders,and criminal organisations under Serious and Organised Crime laws [see Serious and Organised Crime];
  • Those declared and criminal organisations as a body corporate; and
  • Those disqualified under other States or Commonwealth laws [s 7(2)-(3)].

In addition to this, the Commissioner for Consumer Affairs has broad power to disqualify a person from providing tattooing services if the person has been involved in various types of criminal activity. This includes some drug offences, indictable offences involving violence, some assault offences, some Firearms offences, and those with links to serious and organised crime [see s 8 and reg 4 Tattooing Industry Control Regulations 2016 (SA)].

A disqualified person who provides tattooing services is guilty of an offence [s 7 Tattooing Industry Control Act 2015 (SA)].

Maximum penalty:

Natural person - 4 years imprisonment

Body corporate - $250 000

Anyone who proposes to be a provider of tattooing services has to give notice to the Commissioner for Consumer Affairs [s 13].

Maximum penalty: Natural person - 1 year imprisonment ; Body corporate - $100 000

Any person starting employment (paid or unpaid) providing tattooing services must notify the Commissioner for Consumer Affairs within 28 days [s 14].

Maximum penalty: $100 000 or 1 year imprisonment

There are also provisions for record keeping and failing to follow directions of authorised officers which also have high penalties [see for example s 12, s 16].

Keeping some items, such as firearms, weapons or explosives in a place where tattooing services are provided is an offence [s 21].

Maximum penalty: 2 years imprisonment

Exemptions

A tattooing service is exempt from the provisions of the Act if it consists of only cosmetic tattooing (resembling makeup), or tattooing performed on a person in the course of medical treatment [reg 8 Tattooing Industry Control Regulations 2016 (SA)].

Additionally, the Minister can grant exemptions under the Act [s 23].

Forms and more information:

See the Consumer and Business Services website: http://www.cbs.sa.gov.au/

Weapons offences

Weapons

It is an offence for a person who, without lawful excuse, carries an offensive weapon or an article of disguise or has possession of a housebreaking implement.

Maximum penalty: $2 500 or 6 months imprisonment

[Summary Offences Act 1953 (SA) s 21C(1)]

Some items such as knuckle-dusters, which have no innocent purpose, are naturally regarded as offensive, but just about anything can be an offensive weapon. A bottle, a stick, a closed pocket knife or even a baseball bat might be an offensive weapon if the person carrying it wants to use it as such or cannot establish an innocent reason for having it [see Verdiglione v Police[2007] SASC 349].

Carrying an offensive weapon for self-defence is not a lawful excuse. Similarly, many things can be classed as housebreaking implements. For example, a common household screwdriver could be a housebreaking implement, depending on the intention of the person who has it.

Other offences set out under section 21C of the Summary Offences Act 1953 (SA), which carry more serious penalties, are:

  • Without lawful excuse: manufacturing, selling, distributing, supplying, or otherwise dealing in, dangerous articles; or having possession of, or using, a dangerous article.

    Maximum penalty: $7 500 or 18 months imprisonment [s 21C(2)].

  • carrying an offensive weapon or dangerous article at night while in or attempting to enter or leave a licensed premises; or a car parking area for the use of patrons of the licensed premises.

    Maximum penalty: $10 000 or 2 years imprisonment [s 21C(3)].

Dangerous articles include anti-theft cases, blow guns, dart projectors, gas injector devices, plain catapults, self-protecting sprays and self-protection devices. The list and description of objects which are defined as dangerous articles is contained in reg 5 of the Summary Offences Regulations 2016 (SA).

  • using or visibly carrying an offensive weapon in the presence of any person in a school or public place in a manner that would be likely to cause a person to fear for their personal safety.

    Maximum penalty: $10 000 or 2 years imprisonment [s 21C(7)].

Other similar offences

It is an offence to carry a knife in a school or public place.

Maximum penalty: $2 500 or 6 months imprisonment [see s 21E].

It is an offence for a person, who is armed at night with a dangerous or offensive weapon, intending to use the weapon, to commit an offence against the person.

Maximum penalty: 7 years imprisonment or 10 years if previously convicted of an offence against the person or an offence under this section [Criminal Law Consolidation Act 1935 (SA) s 270D].

A person who is, in suspicious circumstances, in possession of an article intending to use it to commit certain specified offences is also guilty of an offence. The maximum penalty depends on the maximum penalty for the intended offence [see Criminal Law Consolidation Act 1935 (SA) s 270C].

Powers to search for weapons

By metal detector

Police have power to conduct searches for the purpose of detecting weapons offences under the Summary Offences Act 1953 (SA). They may search any person (and the person's property) who is in, or is attempting to enter or leave licensed premises, a declared public place holding an event or car parking area for the patrons of those places [ss 72A(1) and (3)].

In the first instance, the search must be by metal detector only. If the metal detector indicates the likely presence of metal, a police officer may require the person to produce items detected by the metal detector. If the person refuses or fails to produce the items, a police officer may then conduct a search of the person and their property (which need not be by metal detector and may be conducted as if it were a search of a person who is reasonably suspected of having an object, the possession of which is an offence) [s 72A(2)].

Previously police could only conduct a search, in the first instance, of a person if they reasonably suspected that the person had possession of an object which is an offence. They can now conduct these random searches by metal detector.

Special powers to prevent serious violence

Under section 72B of the Summary Offences Act 1953 (SA), a police officer may search people (and the property in their possession) attempting to enter or leave an authorised area. A police officer of or above the rank of Superintendent may authorise an area for a period of up to 24 hours if he or she has reasonable grounds to believe that:

  • an incident of serious violence involving a group or groups of people may take place in the area; and
  • the general search powers are necessary to prevent the incident.

An authorisation cannot be immediately extended without the consent of the Commissioner of Police, who may grant such consent if it is in the public interest to do so [ss 72B(7) and (8)].

Weapons prohibition orders

When may a weapons prohibition order be made?

Under section 21H of the Summary Offences Act 1953 (SA) the Commissioner of Police may issue a weapons prohibition order against a person if satisfied:

  • the person has been found guilty of, or declared liable to supervision for an offence of violence; and
  • possession of a prohibited weapon by the person would be likely to result in undue danger to life or property; and
  • it is in the public interest to prohibit the person from possessing or using a prohibited weapon.

When does the order come into force against the person?

The order comes into force when it is personally served upon the person [s 21H(2)]. To facilitate the preparation and service of an order, a police officer may require the person to remain in a particular place and if a person refuses or fails to comply with that requirement, the police officer may then detain the person for as long as necessary or two hours, whichever is less [s 21H(3)].

What does the order provide?

A person subject to a weapons prohibition order:

  • is disqualified from holding or obtaining an exemption under s 21F [ss 21I(1) and (2)];
  • must not use, posess, manufacture, distribute or supply a prohibited weapon (maximum penalty $35 000 fine or imprisonment for 4 years) [s 21I(3)];
  • must not be present at a place where a person carries on business involving prohibited weapons or in the company of another person who has control of a prohibited weapon (maximum penalty $10 000 or imprisonment for 2 years) [s 21I(4)];
  • must notify the Commissioner of Police of the presence of a prohibited weapon at a place where they reside and comply with any direction in reponse, including that they must not then reside at those premises (maximum penalty $10 000 or imprisonment for two years) [s 21I(7)].

What weapons are prohibited?

Prohibited weapons include several types of knives, concealed and ceremonial weapons, laser pointers, cross bows, claws knuckle susters, nunchakus and some other weapons. The full list of the prohibited weapons and their description is contained in reg 6 of the Summary Offences Regulations 2016 (SA).

Can a person subject to an order appeal against it?

Yes. A person aggrieved by a decision of the Commissioner of Police to issue, vary or revoke a weapons prohibition order may appeal to the District Court of South Australia within 28 days of receiving notice of the relevant decision [s 21J].

How is the order enforced?

For the purposes of ensuring compliance with a weapons prohibition order, under section 21L, a police officer may:

  • detain and search a person subject to an order for prohibited weapons;
  • stop, detain and search a vehicle, vessel or aircraft (reasonably suspected of being in the person's charge) for prohibited weapons;
  • enter and search premises (reasonably suspected of being occupied by the person or in the person's care and control) for prohibited weapons.

Most of the relevant offences and penalties are set out above under 'What does the order provide?'

In addition, a person who supplies a prohibited weapon to a person subject to a weapons prohibition order is also guilty of an offence, punishable by a fine of up to $35 000 or imprisonment for 4 years [s 21I(8)]. It is a defence if the person did not know or could not reasonably be expected to have known that the person was subject to the weapons prohibition order [s 21I(9)].

Firearms

From 1 July 2017, the new Firearms Act 2015 (SA) and Firearms Regulations 2017 (SA) apply in South Australia. The new Act and Regulations aim to provide a modernised scheme for firearm control in South Australia, facilitate a nationally consistent approach, improve public safety, prevent crime and reduce red tape. A summary of the offences and penalties under the new Act and Regulations can be accessed here.

Section 5 of the Firearms Act 2015 (SA) provides for five classes of firearms, as well as prescribed firearms.

Class A firearms includes air guns, paint-ball firearms, rim fire rifles (not self loading), shotguns (not self-loading or pump action) and break action combination shotguns and rim fire rifles

Class B firearms includes muzzle loading firearms (not handguns), revolving chamber rifles, centre fire rifles (not self-loading), multiple barrell centre fire rifles that are not designed to hold additional rounds in a magazine, break action combination shotguns and rifles (not break action combination shotguns and rim fire rifles) and all other firearms (not prescribed firearms, handguns, self-loading firearms or pump action shotguns) that are not class A firearms.

Class C firearms includes self-loading rim fire rifles having a magazine capacity of 10 rounds or less, self-loading shotguns firearms having a magazine capacity of 5 rounds or less, or pump action shotguns having a magazine capacity of 5 rounds or less.

Class D firearms includes self-loading rim fire rifles having a magazine capacity of more than 10 rounds, self-loading centre fire rifles, self-loading shotguns having a magazine capacity of more than 5 rounds, or pump action shotguns having a magazine capacity of more than 5 rounds.

Class H firearms includes handguns (not prescribed firearms).

Prescribed firearms includes automatic firearms, mortars, bazookas, rocket propelled grenades and similar military firearms designed to fire explosive projectiles, firearms designed to fire projectiles containing tear gas or any other lachrymatory substance or any nauseating substance or poison (but not firearms designed to tranquillise, immobilise, or administer vaccines or other medicines to animals), firearms designed to have the appearance of other objects and firearms declared by the Firearms Regulations 2017 (SA) to be prescribed.

The Commonwealth and all State and Territory Governments have agreed that the possession of firearms is not a right but a conditional privilege, and that personal protection is not a genuine reason to possess a firearm [ss 3(1) and 15(3)].

Penalties for unauthorised possession

It is an offence to have possession of a firearm without holding a firearms licence authorising possession of the firearm [Firearms Act 2015 (SA) s 9(1)].

Possession of a firearm is defined to include not only handling a firearm but also having control of it through another person, in your home or in any vehicle you travel in [Firearms Act 2015 (SA) s 6].

The maximum penalty for unauthorised possession of a firearm depends upon the type of firearm:

  • Prescribed firearm – maximum penalties are $50 000 or 10 years gaol;
  • Class C, D or H firearms – maximum penalties are $35 000 or 7 years gaol; and
  • Any other firearm – maximum penalties of $20 000 or 4 years gaol (OR maximum fine of $10 000 or gaol for 2 years where the offence is dealt with in the Magistrates Court) [s 9].

There also offences under the Firearms 2015 Act (SA) in relation to unauthorised possession of sound moderators, restricted or prohibited firearm accessories and ammunition [see ss 31, 39 and 40].

Manufacture, alteration, and trafficking of firearms

Manufacturing and trafficking firearms are offences under the Firearms Act 2015 Act (SA) [see ss 22, 25 and 37]. There are also offences under the Act relating to the alteration of firearms [ see s 38].

Firearms licences

To obtain a firearms licence a person must provide all personal information required by the Registrar of Firearms [Firearms Act 2015 (SA) s 14]. All licences include the holder's photograph [Firearms Regulations 2017 (SA) reg 38] and must be carried at all times when the holder has physical possession or control of a firearm under the licence [reg 35]. The maximum penalty for failing to carry a licence when in possession of a licenced firearm is $2 500 or an expiation fee of $315.

A person must ultimately produce a firearm's licence authorising possession of the firearm within 48 hours of a request for inspection by police or face a maximum penalty of $10 000 or imprisonment for 2 years [Firearms Act 2015 (SA) s 58].

A person must be a fit and proper person to hold a firearms licence [see s 7, reg 10] .

People deemed not to be fit and proper people to hold a licence include anyone who has a physical or mental illness, condition or disorder, or in relation to whom other circumstances exist, that would make it unsafe for that person to possess a firearm [s 7(2)].

Anyone who has a prior conviction for actual or threatened violence anywhere in the world, has a prior Firearms Act 2015 (SA) conviction anywhere in Australia, has a prior conviction for an offence prescribed by the regulations, has not complied with the Firearms Act 2015 (SA) in relation to the safe handling, use, storage or transport of firearms or who has at any time been the subject of a Domestic Violence Intervention Order anywhere in Australia would not be regarded as a fit and proper person [s 7(3)].

In deciding whether a person is a fit and proper person regard may be had to the reputation, honesty and integrity of the person and of any person with whom they associate and to whether there is any risk of the person using the firearm for an unlawful prupose, to harm him or herself or another, or failing to exercise continuous and responsible control over a firearm [s 7(4)].

A person under 18 years of age cannot generally obtain a firearms licence [s 14(3)]. There are some limited exceptions.

Firearms clubs and medical practitioners are required to inform the Registrar of Firearms if they have reasonable cause to suspect that a person is suffering from a physical or mental illness, condition or disorder, or other circumstances exist such that a threat could arise in relation to their own or others’ safety as a result of their possession or use of a firearm [Firearm Regulations 2017 (SA) regs 94 and 96]. In the case of firearms clubs there is an obligation to expel a person under circumstances where the actions or behaviour of a member give rise to a threat to their own or others' safety or where a firearms prohibition order applies [reg 95].

There are tight requirements on the acquisition, lending or hiring of firearms. Before acquiring a firearm, a person must first apply to the Registrar of Firearms for a permit and comply with a prescribed process for the acquisition [Firearms Act 2015 (SA) s 22(1)]. The Act sets out that a person does not have a genuine reason to acquire a firearm if they intend to possess or use it for the purpose of personal protection, the protection of another or the protection of property [s 22(6)]. The Act provides for loan or hire to persons authorised by a firearms licence to possess the firearm for 10 or 28 days, but failure to return the firearm within time is an offence.

Firearms prohibition orders

Interim firearms prohibition orders (issued by police)

Under section 43 of the Firearms Act 2015 (SA) a police officer may issue an interim firearms prohibition order if they suspect on reasonable grounds that:

  • possession of a firearm by the person would be likely to result in undue danger to life or property; or
  • the person is not a fit and proper person to possess a firearm.

An interim order applies to a person as soon as it is issued against the person, but the order only comes into force against the person when it is served personally on the person [s 43(4)]. A police officer can require a person to wait while the order is being prepared or to accompany them to the nearest police station for the order to be served [s 43(5)]. Police have the power to arrest a person who refuses to comply and can detain them for as long as is necessary for the order to be served or for a period of up to two hours, whichever is the lesser amount of time [s 43(5)]. The person then must provide the Commissioner of Police, in writing, with their address [s 43(7)].

The interim prohibition order expires 28 days after the Registrar has been given written notice of the person’s address for service [s 43(8)].

A person who has been issued an interim firearms prohibition order has the right to apply to the Registrar for a review of the decision to issue the order [s 46].

Firearms prohibitions orders (issued by the Registrar)

The Registrar also has the power to issue a firearms prohibition order under section 44 of the Firearms Act 2015 (SA) if satisfied of the following:

  • that possession of a firearm by the person would be likely to result in undue danger to life or property; or
  • that the person is not a fit and proper person to possess a firearm; and
  • that it is in the public interest that a prohibition order be issued against the person.

The Registrar may also issue a prohibition order if the person is, or has been, a member of a criminal organisation or is the subject of a control order under the Serious and Organised Crime (Control) Act 2008 (SA). A person will be presumed to be a member of a criminal organisation if the person is displaying an insignia of that organisation (e.g. on an article of clothing or as a tattoo) [s 44(10)].

As with orders issued by police officers (see above), the order applies to the person as soon as it is issued but only comes into force against them when it has been personally served on them [s 44(2)]. Personal service in this instance includes service by registered post at the address for service provided to the Registrar under section 43 [s 44(3)].

A person may be required to wait or to accompany police to the nearest police station for the purpose of serving the order [s 44(4)]. If they refuse to comply they can be detained in custody (without warrant) for as long as is necessary to serve the order or two hours (whichever is the lesser period of time).

It is an offence to fail to notify the Registrar or a police officer of an address for service within 48 hours of the request being made and the maximum penalty for this is $10 000 [s 44(8)].

Effect of firearms prohibitions order

A firearms prohibition order acts to suspend any licence or permit held under the Firearms Act 2015 (SA) and a person subjected to a prohibition order must not acquire, possess or use a firearm, firearm part, a sound moderator or ammunition [s 45(2)].

All firearms owned or held by the person must be surrendered to the Registrar [s 45(3)]. This includes firearm parts, sound moderators and ammunition.

Under section 45(4), whilst the prohibition order is in force a person must not be present on or at:

  • the grounds of a firearms club or paint-ball operator; or
  • a commercial shooting range or gallery; or
  • an arms fair; or
  • a place of business where firearms are repaired, modified or tested or where firearms, firearm parts, sound moderators or ammunition are bought or sold or hired out; or
  • a place where firearms, firearm parts or sound moderators are manufactured; or
  • a place where firearms are refurbished; or
  • any other place prescribed by the regulations.

Membership of a firearms club (whether continuing or new) is also prohibited.

A person subject to a firearms prohibition order must not be in the company of a person who has physical possession or control of a firearm.

The maximum penalty for failure to comply with the above requirements is $50 000 or imprisonment of 10 years [s 45(4)].

Whilst subject to a prohibition order it is an offence to reside at premises on which there is a firearm, firearm part, sound moderator or ammunition. The maximum penalty is $50 000 or imprisonment of 10 years in the case of a firearm and $20 000 or imprisonment of 4 years in the case of a firearm part, sound moderator or ammunition [s 45(6)].

A person subject to a firearms prohibition order must inform all persons over the age of 18 who resides at the same premises of the order [s 45(8)]. The maximum penalty for failure to comply is $20 000 or imprisonment for 4 years.

A person who has been issued with a firearms prohibition order by the Registrar has the right to apply for a review of the decision with the South Australian Civil and Administrative Tribunal [s 47].

Penalties while subject to prohibition orders

Acquiring, using or possessing a firearm, firearm part, sound moderator or ammunition

Maximum penalty in the case of a firearm: $75 000 or imprisonment for 15 years

Maximum penalty in the case of a firearm part, sound moderator or ammunition: $35 000 or imprisonment for 7 years [s 45(2)].

Failure to surrender firearms, firearm parts, sound moderators or ammunition

Maximum penalty in the case of a firearm: $50 000 or imprisonment for 10 years

Maximum penalty in the case of a firearm part, sound moderator or ammunition: $20 000 or imprisonment for 4 years [s 45(3)].

Attending a firearms club or range, etc whilst subject to a prohibition order

Maximum penalty: $10 000 or 2 years imprisonment [s 10C(5)].

Residing at an address where there are firearms or ammunition

Maximum penalty in the case of a firearm: $50 000 or 10 years imprisonment

Maximum penalty in the case of a firearm part, sound moderator or ammunition: $20 000 or 4 years imprisonment [s 45(6)].

The Firearms Act 2015 (SA) also provides for penalties for people who themselves are not the subject of a prohibition order but who supply firearms, parts, sound moderators or ammunition to a person the subject of the order or carry firearms etc in their presence [s 45(9) – (10)]. For example, a person who is not the subject of a prohibition order but who has a firearm on his or her person, is found in the company of a person under such an order, can themselves face a penalty of up to $20 000 or 4 years imprisonment [s 45(10)]. Even bringing a firearm or ammunition to the residence of a person who is subject to a firearms prohibition order consitutes an offence and the penalties can be very severe [s 45 (11)].

Powers to require information, search and seize firearms

Powers to require information

The police have wide powers to require information of any person reasonably suspected of having knowledge relevant to and reasonably required for the administration and enforcement of the Firearms Act 2015 (SA) [s 55(1)]. This includes the person's full name, date of birth, usual place of residence and evidence of their identity.

Anyone who has or recently has had possession of a firearm or ammunition, anyone who is in the company of such a person and anyone who is the occupier or in charge of or present in premises or a vehicle, vessel or aircraft where a firearm or related item is found, must answer further questions relating to the ownership and possession of the firearm, and the owner must answer questions relating to the whereabouts and possession of the firearm [s 55(2)]. The penalty for failing to answer questions truthfully is a maximum fine of $20,000 or imprisonment for 4 years [s 55(5)].

Even people who may incriminate themselves are required to answer questions [s 55(7)].

Police also have the power to demand firearms owners produce weapons for inspection [s 57(1)].

Powers to search and seize firearms

The police also have the power to seize any unsafe, unregistered or prohibited firearms. Seizure also applies if the person is not a fit or proper person to hold a firearm, there is undue danger to life or property, or there is a court order [s 57].

A police officer who suspects on reasonable grounds that there is a firearm, firearm part, sound moderator, prohibited firearm accessory, restricted firearm mechanism, or licence liable to seizure on any person, vehicle, veseel or aircraft, they may stop, detain and search them [s 57(7)]. If a police officer suspects on reasonable grounds that a person who has possession of a firearm has failed to keep it safely and securely, the police office may enter and search any premises and inspect the firearm and how it has been secured [s 57(8) and (9)]. Reasonable suspicion is presumed if the licensee fails to report the results of an audit at the request of the Registrar of Firearms, or fails to comply with a condition for inspection as to safe keeping [s 57 (10)]. A police officer has similar powers to stop, detain and search to ensure compliance with firearms prohibitions orders [s 57(11) and (12)].

Discharge of firearm to injure, annoy or frighten or damage property

Under section 32AA of the Criminal Law Consolidation Act 1935 (SA) it is an offence to:

  • discharge a firearm intending to injure, annoy or frighten any person, maximum penalty 8 years imprisonment [s 32AA(1)]
  • discharge a firearm with the intent of damaging property, maximum penalty 5 years imprisonment [s 32AA(2)]
  • discharge a firearm being reckless as to whether doing so does or may injure, annoy or frighten any person, maximum penalty 5 years imprisonment [s 32AA(3)]
  • discharge a firearm being reckless as to whether doing so does or may damage property, maximum penalty 3 years imprisonment [s 32AA(4)]
Serious firearm offences

Part 3 Division 3 of the Sentencing Act 2017 (SA) sets out serious firearms offences. A person convicted of a serious firearms offence is generally deemed to be a serious firearms offender [see s 50(1)].

A sentence of imprisonment must be imposed in relation to a serious firearms offender for a serious firearms offence (even if it is the person's first serious firearms offence) and cannot be suspended [see s 51(1)], unless the serious firearms offender can satisfy the Court by evidence on oath that:

  • their personal circumstances are so exceptional as to outweigh the paramount consideration of protecting the safety of the community (as set out in section 3 of the Act); and
  • it is appropriate to suspend the sentence in all of the circumstances.

See Sentencing Act 2017 (SA) s 51(2).

Comprehensive penalty summary

For a comprehensive summary of penalties for offences against the Firearms Act 2015 (SA), see our Firearms penalty summary (as at 1 July 2017).

    Common Offences  :  Last Revised: Tue Oct 25th 2016
    The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.