Public spaces such as parks, beaches, streets to name a few, are there as the name suggests for the public to use and enjoy. In NSW there are laws that give Police the power to control the use of public space through move-on directions. These laws are meant to make public space safe for everyone. Often the reality and the use of move-on directions is very different. A report by the NSW Ombudsman in 1999, highlighted some problems with the way the move-on powers were being used by the police. The report found, over 50%, of orders were issued without a valid reason. You can read the NSW Ombudsman report for more information.
What does the law mean by public space?
Under NSW law the legal meaning of “public place” is quite broad and includes:
- Places that are open to everyone without you needing a reason to be there – for example. streets, parks, beaches, bike paths, skate parks
- Places where there is some entry restriction – for example pubs (where you have to be over 18), entertainment venues (which you might have to pay to get in to), or railway platforms (where you must have a train ticket)
- Some places which are actually private property but do not belong exclusively to one person – for example car parks or common areas belonging to blocks of flats.
When can police issue a move-on direction?
It is very important to remember that police must have a reason for giving you a “move-on” direction. They can’t just issue a move-on direction because they feel you are loitering (hanging around) or because you can’t give them a reason that they think is good enough for you being there.
What the Law states, Section 197 of the Law Enforcement (Powers and Responsibilities) Act, A police officer can give a reasonable move-on direction to a person in a public place if that police officer has reasonable grounds to believe that the person’s presence or conduct is:
- obstructing another person or persons or traffic
- harassing or intimidating another person or persons
- causing or likely to cause fear to another person or persons, so long as the relevant conduct would be such as to cause fear to a person of reasonable firmness
- for the purpose of unlawfully supplying, or intending to unlawfully supply, or soliciting another person or persons to unlawfully supply, any illicit drug; for the purpose of obtaining, procuring or purchasing any illicit drug that it would be unlawful for the person to possess.
When can’t police issue a move-on direction?
Police can’t use move-on directions if you are in a public space to join a legitimate demonstration, industrial dispute or what law deems as organised assembly, for example a Christmas Parade.
Do I need to comply with move-on direction?
It is an offence in NSW which could see receive an on the spot fine of $220 if you fail to comply with a police move-on direction if:
- the direction given by police is reasonable
- the police have given the required information and warnings
- you continue behaving in an inappropriate way
- you don’t have a reasonable excuse for not complying.
What is a reasonable move-on direction?
Unfortunately the law does not say exactly what type of direction the police need to give only that it is “reasonable in the circumstances” to “reduce or eliminate the obstruction, harassment, intimidation or fear or to stop the sale/purchase of drugs”.
Some examples of a reasonable move-on direction include:
- telling people to stop fighting, or
- move away from a doorway they are blocking.
It is not reasonable to tell someone that they are banned from a public area for 7 days.
What should the police tell me?
It is important when you are approached by police and given a move-on direction that:
- that they provide evidence that they are a police officer (unless they are in uniform)
- Tell you their name and badge number and station they work from
- Most importantly, the reason they are giving you a move-on direction
- They also must warn you that you are required by law to comply. If you don’t comply, the police must give a warning that failure to comply is an offence (Law Enforcement (Powers and Responsibilities) Act s201).
What penalties exist if I don’t comply?
The maximum penalty for this offence is 2 penalty units (currently $220). If police argue that you have failed to comply with their reasonable move-on direction you can be given an infringement notice $220 (on-the-spot fine). Sometimes if police feel you are being very unreasonable they can arrest and charge you.
Want to know more?
If you are under 18 you can get free legal advice from the Shopfront Youth Legal Centre. They have a has a range of information sheets available for everyone on their website.
You can get free legal advice or download information sheets from Legal Aid.
Community Legal Centres also have free legal advice. Check out their website to find a centre close to you.
The NSW Council of Civil Liberties may be able to help you if you feel you have been unfairly targeted by police.