Contravening a public safety order is an offence under section 87ZA of the Law Enforcement (Powers and Responsibilities) Act 2002 that carries a maximum penalty of 5 years in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
A public safety order is an order made by a senior police officer that prohibits a specified person, or persons belonging to a specified class of persons, from:
A ‘senior police officer is defined as a police area commander, police district commander, duty officer for a police station or any officer of the rank of inspector or above.
An officer may make a public safety order if satisfied that:
In determining whether the order is reasonably necessary, the officer must take into account:
1. Whether the person or persons to whom the order will apply previously behaved in a way that posed a serious risk to public safety or security or have a history of engaging in serious crime related activity within the meaning of the Criminal Assets Recovery Act 1990,
2. Whether the person or persons to whom the order will apply:
(a) Are, or have been, members of a declared organisation (within the meaning of the Crimes (Criminal Organisations Control) Act 2012,
(b) Are, or have been, subject to control orders under that Act, or
(c) Associate, or have associated, with members of a declared organisation or persons subject to control orders within the meaning of that Act,
3. If advocacy, protest, dissent or industrial action is likely to be the primary purpose for the person or persons to whom the order will apply being present at the relevant public event or premises or other area–the public interest in maintaining freedom to participate in such activities,
4. Whether the person or persons to whom the order will apply will be prevented from being present at any of the following–
(a) A place of work at which the person or persons are regularly employed,
(b) An educational institution attended by the person or persons,
(c) A place of worship attended by the person or persons,
(d) A place at which the person or persons receive a health service or welfare service,
(e) A place at which the person or persons are provided with legal services by any Australian legal practitioners or by any organisations employing or otherwise using one or more Australian legal practitioners to provide such services,
5. Whether the degree of risk involved justifies the imposition of the prohibitions to be specified in the order having regard to any legitimate reason the person or persons to whom the order will apply may have for being present at the relevant event or premises or other area,
6. The extent to which the making of the order will mitigate any risk to public safety or security, and
7. The extent to which the order is necessary having regard to other measures reasonably available to mitigate the risk.
There is a ‘serious risk to public safety’ if there is a serious risk the presence of the person or persons might result in death or serious physical harm to a person or in serious property damage.
An officer must not make a public safety order that would prohibit a person or class of persons from being present at any public event or premises or other area if:
1. the officer believes that non-violent advocacy, protest or dissent is likely to be the primary purpose for their presence at the public event or premises or other area, or
2. the officer believes that industrial action is likely to be the primary purpose for their presence at the public event or premises or other area, or
3. the order would prevent them from entering their principal places of residence.
A public safety order must specify:
1. The public event or premises or other area to which it applies,
2. The person or class of persons to which it applies,
3. That a contravention of the order may constitute an offence that carries a maximum penalty of imprisonment for 5 years,
4. In the case of an order that applies to premises or another area other than in connection with a public event, the period, not exceeding 72 hours, during which the order will be in force,
5. In the case of an order that applies to a public event:
(a) The location or locations in which the event is being held for the purposes of the order,
(b) If the event is held over consecutive days, when the event is taken to start and finish for the purposes of the order, and
(c) if the public event is held over non-consecutive days, when the event is taken to start and finish for the purposes of the order for each of the days it is held – being a combined period that does not exceed 72 hours in total.
A decision of an officer to make a public safety order that exceeds the 72 hour limited is appellable to the Supreme Court of New South Wales.
General legal defences to the offence of contravening a public safety order include duress, necessity and self-defence.
If you are able to raise evidence of a general legal defence, the onus then shifts to the prosecution to prove beyond a reasonable doubt that the defence does not apply to the circumstances of the case.
You are entitled to an acquittal if the prosecution is unable to do this.