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

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

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

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

There are four categories of breach:

An aggravated offence is an offence committed in circumstances where the offender knew or suspected, or ought reasonably to have known or suspected, that there was a reasonable likelihood that a child would see, hear or otherwise be exposed to the conduct constituting the offence or to any effects of that conduct.

Penalty

For a breach of a term under section 13(failure to comply with intervention program)

The maximum penalty is a $2,000 fine or 2 years imprisonment, or an expiation fee of $315 [s 31(1)]. The Court may also order payment of not more than a prescribed amount towards the cost of any intervention program the respondent may be required to undertake. 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 [section 31(2)]

The maximum penalty for a basic offence is 3 years imprisonment, for an aggravated offence it is 5 years imprisonment.

For a breach of any other term that involves physical violence or a threat of physical violence [section 31(2aa)(b)]

The maximum penalty for a basic offence is 7 years imprisonment, for an aggravated offence it is 10 years imprisonment.

For a breach of any other term a second or subsequent time in a 5 year period [section 31(2aa)(a)]

The maximum penalty for a basic offence is 7 years imprisonment, for an aggravated offence it is 10 years imprisonment.

In addition to the above penalties, any breach may also result in an order for payment of not more than the prescribed amount towards the cost of any intervention program the respondent is required to undertake [ss s 13(4)(b) and 31(2a)(a)]. For details of the prescribed amount see reg 4A of the Intervention Orders (Prevention of Abuse) Regulations 2011 (SA).

Where there is only a penalty of imprisonment provided for an offence, the Court may substitute that penalty for another penalty, such as a suspended sentence or a fine, where good reason exists to do so [Sentencing Act 2017 (SA) s 25(2) and (3)].

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 respondent) [s 31(3)].

Landlords

It is an offence for a landlord to provide a respondent 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:

See 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 respondent about his/her behaviour and give a warning of the consequences of a further breach rather than take action at this point.

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:

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

Instant Loss of Licence

If a driver is formally charged with the offence of causing death by dangerous driving (via the laying of an Information in court), the Commissioner of Police must then as soon as is reasonably practicable give the driver a notice of immediate licence disqualification or suspension 'ILOL notice.'The Commissioner of Police must ensure the prescribed details of the notice are forwarded to the Registrar of Motor Vehicles. The Registrar of Motor Vehicles must then post a separate notice of licence disqualification or suspension to the driver [Criminal Law Consolidation Act 1935 (SA) s 19AE(1-4)].

A police officer also has the ability to issue an ILOL notice where they reasonably believe that a driver has committed the offence of death by dangerous driving [Criminal Law Consolidation Act 1935 (SA) s 19AF(1)]. The prescribed period of disqualification under an ILOL notice issued in such circumstances is up to 12 months [s 19AF(17)].

An ILOL notice must be in writing, and personally served on the driver, or if the driver consents to receiving the notice by email, via the nominated email address provided [Criminal Law Consolidation (General) Regulations 2021 (SA) reg 6A]. the ILOL notice must contain the prescribed particulars as defined in Schedule 1 of the Criminal Law Consolidation (General) Regulations 2021 (SA).

A driver who receives a ILOL notice may apply to the Magistrates Court for an order lifting the disqualification or suspension. The Court may only make such an order if satisfied that exceptional circumstances exist such that it is appropriate to do so, and the person does not pose a substantial risk to the public if an order is made [s 19AE(6); s 19AF(6)].

It is an offence for a person to choke, suffocate or strangle another person with whom they are, or have been, in a relationship with and without that person’s consent [Criminal Law Consolidation Act 1935 (SA) s 20A].

Maximum penalty: imprisonment for 7 years.

There is no requirement under the Act that harm be intended or caused by the action of choking, suffocation or strangulation.

The definition of in a relationship for the purposes of this offence is broader than an intimate relationship and incorporates family relationships such as that between a parent and child and between siblings.

Two people are in a relationship (or taken to have been in a relationship) with each other if:

See Criminal Law Consolidation Act 1935 (SA) s 20A(3).

Definition

Female genital mutilation (FGM) is:

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 and Young People (Safety) Act 2017 (SA) s 18(4)]

Offences

Under section 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 section 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 section 53(1)(d) of the Children and Young People (Safety) Act 2017 (SA), if a child or young person is at risk of being removed from the State for the purposes of FGM, the Court may make such orders as necessary and appropriate to prevent the removal , including that a specified person not remove them from the State and/or that their passport be held by the Court for a period of time.

It is an offence to film a person who is being subjected to, or compelled to engage in, a humiliating or degrading act, unless the person consents to both the humiliating or degrading act and the filming [Summary Offences Act 1953 (SA) ss 26A, 26B(1)].

A humiliating or degrading act means

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 [s 26B(4)].

It is also an offence to distribute an image obtained from humiliating or degrading filming knowing or having reason to believe that the victim does not consent to distribution [s 26B(2)]. It is a defence to this charge if the defendant did not distribute the images intentionally or recklessly or distributed the images for a legitimate public purpose [s 26B(5)].

The maximum penalty for these offences is imprisonment for 1 year.

It is also an offence to take part in a humiliating or degrading act and either film it or distribute an image from it [s 26B(3)].

The maximum penalty for this offence is imprisonment for 2 years.

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

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 [Criminal Law Consolidation Act 1935 (SA) s 12A]. The offence occurs where a person:

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:

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

Like murder, manslaughter requires that:

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 occurring in circumstances of self-defence.

Involuntary manslaughter involves the following categories:

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].

Offence to destroy human remains to pervert the course of justice

Section 177 of the Criminal Law Consolidation Act 1935 (SA) provides that it is an offence to destroy, remove, conceal or alter human remains, or do any act which may result in the human remains being less likely to be found, for the purpose of:

where the offence relates to the human remains.

Maximum penalty: 15 years' imprisonment.

Where the offender also caused the death of the person, any sentence imposed for this offence relating to human remains must be cumulative upon the sentence for the offence of causing the death of the person [s 177(2)]. The sentences cannot be served concurrently and one single penalty cannot be imposed in respect of both offences (despite section 26 of the Sentencing Act 2017 (SA)).

It is not necessary for the prosecution to prove that the defendant caused the death of the decedent or that the defendant knew the identity of the person who caused the death of the decedent [s 177(3) and (4)].

Offence to defile human remains

It is an offence under section 178 of the Criminal Law Consolidation Act 1935 (SA) to:

Maximum penalty: 15 years' imprisonment.

This offence differs from the section 177 offence in that it is unnecessary to prove one of the five purposes required for that offence.

Any sentence for the section 178 offence is not required to be cumulative.

Offence to fail to report finding human remains

A person who finds human remains, or a thing they reasonably suspect may be human remains, must report that fact to a police officer as soon as practicable after the discovery [Criminal Law Consolidation Act 1935 (SA) s 179(1)]. The location of the suspected remains must also be reported.

Maximum penalty: 5 years' imprisonment.

A report is not required where the person reasonably believes another person has reported the existence and location of the remains to a police officer or other required authority [s 179(2), see also Criminal Law Consolidation (General) (Human Remains Reporting) Amendment Regulations 2022].

Offence to conceal human remains

A person who has found human remains, or a thing they reasonably suspect may be human remains, is guilty of an offence if they conceal the human remains or thing found [Criminal Law Consolidation Act 1935 (SA) s 179(4)].

Maximum penalty: 5 years' imprisonment.

Alternative verdicts

A person charged with the offence of destroying human remains to pervert the course of justice [s 177] may instead be found guilty of the offence of defiling human remains [s 178], failing to report finding human remains [s 179(1)] or concealing human remains [s 179(4)] if the trial judge instructs the jury that they may do so [s 180].

Interment offences

Section 13 of the Burial and Cremation Act 2013 (SA) set outs numerous offences relating to the interment of human remains at cemeteries and natural burial grounds, including:

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

If a person intentionally causes human biological material to come into contact with the victim or threatens (by words or conduct) to cause human biological material to come into contact with the victim they are guilty of this offence.

Harm in relation to this offence has the same meaning as in Division 7A, section 21 of the Act, namely physical or mental harm (whether temporary or permanent).

A person will be taken to cause material to come into contact with a victim if the person performs any act, such as spitting or throwing the material at the victim, intending or likely to cause the material to come into contact with the victim.

It is an offence to unlawfully stalk another person. Under s 19AA of the Criminal Law Consolidation Act 1935 (SA), a person stalks another if they do any of the following on at least 2 separate occasions, with the intention to cause serious physical or mental harm or serious apprehension or fear:

The offence may be aggravated if:

Maximum penalty: imprisonment for 3 years imprisonment (basic offence), imprisonment for 5 years (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) s 19AA(3) - see also Summary Offences Act 1953 (SA) s 7].

Cyber stalking and Cyber bullying

Cyber stalking is the use of information technologies to harass and intimidate an individual. 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 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 constitute an assault under s 20 of the Criminal Law Consolidation Act 1935 (SA) if the bully threatens to physically hurt the victim, provided there is a real possibility that the bully will carry out the threat or they are in a position to carry out the threat and intend to do so.

Cyber bullying and trolling may also be illegal under federal criminal law. The Commonwealth Criminal Code criminalises the use of the internet to menace, harass or cause offence [Criminal Code Act 1995 (Cth) Schedule 1 s 474.17]. See also Distribution of invasive images (image-based abuse).

Despite the provisions of the legislation, the prosecution of stalking-type offences is very difficult. Not only must there be at least 2 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 cyber stalking 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/cyber stalking 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 offensive pages and content and can also ban cyber bullies from using the site. Contact the website administrator or company to request the removal of material. Alternatively, a report may be made to the Office of the eSafety Commissioner – see Office of the eSafety Commissioner. The commencement of the Online Safety Act 2021 (Cth) has expanded the powers of the eSafety Commissioner.

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

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) s 19(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 spouse' could be interpreted as an expression of emotions, whereas 'I want to kill my spouse' 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:

Maximum penalty:

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

Threaten Harm

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

Maximum penalty:

[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:

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

See also: Arson and property damage.

The Voluntary Assisted Dying Act 2021 (SA) prescribes several offences including the misuse of medication under the Act.

Offence not to comply with practitioner administration permit

If the coordinating medical practitioner administers the voluntary assisted dying medication intending to cause death other than as authorised by the permit [s 98].

Maximum penalty: Imprisonment for life.

Offence to administer voluntary assisted dying medication dispensed pursuant to a self administration permit to another person [s 99]

Maximum penalty: Imprisonment for life.

Offence to induce another person to request voluntary assisted dying by dishonesty or undue influence [s 100]

Maximum penalty: 5 years’ imprisonment.

Offence to induce, by dishonesty or undue influence, another person to self administer voluntary assisted dying medication dispensed pursuant to a self administration permit [s 101]

Maximum penalty: 5 years’ imprisonment.

Offence to falsify a form or record or make a false statement under the Act [ss 102 and 103]

Maximum penalty: 5 years’ imprisonment.

Offence for contact person to fail to return unused medication after the death of a person subject to a self administration permit [s 104]

Maximum penalty: 12 months’ imprisonment.

Offence to fail to give copies of forms to the Board [s 105]

Maximum penalty: $10,000.

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 ('a bushfire offence').

Maximum penalty: imprisonment for life

A court that finds a defendant guilty of an offence against section 85B must make an order for compensation under section 124 of the Sentencing Act 2017 (SA). The court is not bound to make such an order if the defendant is aged under 16 years of age, or the court is satisfied that the defendant has no means of paying compensation, or special circumstances exist.

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

From 18 December 2022, a police officer may apply to the Magistrates Court for an order requiring a person who has been found guilty of a bushfire offence at any time to be monitored during the South Australian fire danger season each year [Criminal Procedure Act 1921 (SA) s 99L]. The person must be deemed to be at risk of committing a further bushfire offence. The monitoring order, if made, will remain in force until it is revoked by the Court. A person subject to a monitoring order is required to report to the Commissioner of Police each year as instructed and to wear or carry and maintain an electronic monitoring device at all times during the fire danger season.

Maximum penalty: $10,000 fine or two years imprisonment

[Criminal Procedure Act 1921 (SA) s 99L]

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]

Part 4A of the Criminal Law Consolidation Act 1935 (SA) sets out a number of offences in relation to computers, computer data and electronic communications networks.

Access to, or modification of, computer data is unauthorised unless it is done or made by the owner of the data (or someone who has an authorisation or licence (express or implied) from the owner) [s 86C]. Similarly, an impairment of electronic communication is unauthorised unless it is caused by the person who is entitled to control use of the relevant electronic communication network or some other person who has an authorisation or licence from them [s 86D].

Unauthorised modification of computer data

A person who causes (directly or indirectly) an unauthorised modification of computer data AND knows that the modification is unauthorised AND intends, by that modification, to cause harm or inconvenience by impairing access to, or by impairing the reliability, security or operation of, computer data, or is reckless as to whether such harm or inconvenience will ensue, is guilty of an offence [s 86G].

Maximum penalty: 10 years imprisonment

Unauthorised impairment of electronic communication

A person who causes (directly or indirectly) an unauthorised impairment of electronic communication AND knows that the impairment is unauthorised AND intends, by that impairment, to cause harm or inconvenience, or is reckless as to whether harm or inconvenience with ensure, is guilty of an offence [s 86H].

Maximum penalty: 10 years imprisonment

Possession of computer viruses with intent to commit serious computer offence

A person is guilty of an offence if the person produces, supplies or obtains proscribed data or a proscribed object OR is in possession or control of proscribed data or proscribed object, with the intention of committing, or facilitating the commission (either by that person or someone else) of a serious computer offence [s 86I].

There are also offences for the use of a computer to commit, or facilitate the commission of the offences (both within and outside of the State) [see ss 86E and 86F].

Under the Summary Offences Act 1953 (SA) there is a similar offence relating to the unauthorised impairment of data held in a credit card or on a computer disk or other device [s 44A]. The maximum penalty for this offence is 2 years imprisonment.

The following websites provide more information about this and other computer-related crime and how people and organisations can protect themselves:

A person who enters information into an Electronic Court Management System (CourtSA) knowing that the information is false or misleading is guilty of an offence.

Maximum penalty: $10 000.

[s 241A(1) Criminal Law Consolidation Act 1935 (SA); see r 14 Criminal Law Consolidation (General) Regulations 2021 (SA)]

A person who provides information to another person knowing that the information is false or misleading, and will be, or is likely to be, provided to a court (whether by use of an Electronic Court Management System or otherwise) is guilty of an offence.

Maximum penalty: $10 000

[s 241A(2) Criminal Law Consolidation Act 1935 (SA)].

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: $5,000 ($2,500 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: $5,000

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: $5,000 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: $7,500 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: $5,000 or imprisonment for 12 months.

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.

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) [Criminal Law Consolidation Act 1935 (SA) s 168].

Maximum penalties:

Serious criminal trespass – non-residential buildings

Basic offence: 10 years imprisonment

Aggravated offence: 20 years imprisonment

[Criminal Law Consolidation Act 1935 (SA) s 169]

Serious criminal trespass – places of residence

Basic offence: 15 years imprisonment

Aggravated offence: imprisonment for life

[Criminal Law Consolidation Act 1935 (SA) 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 (SA) s 170A]

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]

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)].

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.

Aggravated Assault

A person commits this offence when they assault a police officer or other person engaged in a prescribed occupation or employment, knowing that the victim was acting in the course of their official duties, or, in the case of a police or other law enforcement officer, in retribution for something the offender believes they have done in the course of their duty [Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(c) and (ka) and Criminal Law Consolidation (General) Regulations 2021 (SA) reg 4].

Maximum penalty:

Basic offence: Five years imprisonment [s 20(3)]

Causing harm: Seven years imprisonment [s 20(4)]

Assault Emergency Worker

From 3 October 2019, police may charge an offender for assaulting a prescribed emergency worker under section 20AA. An assault may include intentionally causing human biological material to come into contact with a victim or threatening to do so. There is also a separate offence of committing a prohibited act involving human biological material, see Prohibited act involving human biological material.

An emergency worker is prescribed in section 20AA(9) to include:

Maximum penalty:

Basic offence: Five years imprisonment [s 20AA(3)]

Hinder or resist police officer in course of official duty causing harm: 10 years imprisonment [s 20AA(4)]

Recklessly cause harm: 10 years imprisonment [s 20AA(2)]

Intentionally cause harm: 15 years imprisonment [s 20AA(1)]

Harm in relation to these offences has the same meaning as in Division 7A, section 21, namely physical or mental harm (whether temporary or permanent).

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, resist requires 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.

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]

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 [s 5AA(1b):

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].

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) and (2)].

There are a number of barring orders that are issued in different circumstances. The barring orders covered in this section include:

Liquor Licensing Act Barring Orders

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.

Maximum penalty: a fine of up to $2,500 [s 132].

Barring Orders

There are effectively three types of barring orders under the Liquor Licensing Act 1997 (SA) and although the consequence of the orders is the same, the basis on which they are issued differ significantly:

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:

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 their dependant(s) can be for an indefinite or a specified period.

In other cases the following limitations apply:

A person who enters or remains on a licensed premises from which they have been barred is guilty of an offence with a maximum penalty of a fine of up to $5 000 or an expiation fee of $315 [Liquor Licensing Act 1997 (SA) s 125(2)].

A licensee, a responsible person, or an employee of a licensed premises who allows a person to enter or remain on a licensed premises from which they have been barred is also guilty of an offence, with a maximum penalty of a fine of up to $5,000 or an expiation fee of $315 [see s 125(4)].

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:

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:

A person who enters or remains on a licensed premises in contravention of a Police Barring Order or Commissioner of Police barring order is guilty of an offence with a maximum penalty of a fine of up to $5,000 or an expiation fee of $315 [Liquor Licensing Act 1997 (SA) s 125C(1)].

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: $1,250

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.

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)].

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.

Police generally notify the public about declared public precincts on the SAPOL website.

Common areas that have been made declared public precincts include parts of the Adelaide CBD (as an ongoing declared public precinct), the Adelaide CBD during the Fringe Festival, and Glenelg during New Years Eve celebrations each year.

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 hinder or 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.

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.

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 imprisonment for 3 months

[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.

The Liquor Licensing Act 1997 (SA) provides for a number of criminal offences relating to the sale, supply and consumption of liquor.

There are additionally a number of summary offences in relation to the possession, transportation and supply of liquor in certain areas within South Australia, under Part 3B of the Summary Offences Act 1953 (SA)- see Liquor Offences under the Summary Offences Act.

The Act also enables the Police, Commissioner of Police, and licensees of licensed premises to issue barring orders to patrons, preventing a person from entering or remaining on licensed premises, see Barring Persons from Licensed Premises or Casino. It is an offence to breach a barring order, punishable by a maximum penalty of a fine of up to $5,000 or expiation fee of $315 [see Liquor Licensing Act 1997 (SA) ss 125(2), 125C].

Specific provisions of the Act apply to the consumption, sale, or provision of alcohol to minors or by minors - see Law Handbook chapter Children and Young People - Alcohol, Tobacco and Other Drugs.

Additional provisions apply to criminal organisations - see Liquor Licensing Act Offences About Criminal Organisations.

Other common offences under the Liquor Licensing Act 1997 (SA) include:

Consumption or provision of liquor on unlicensed premises

It is an offence to consumer liquor on an unlicensed, regulated premises, such as a restaurant, café, shop, amusement parlour, or arcade [Liquor Licensing Act 1997 (SA) s 129(1)].

Maximum penalty: fine of up to $5,000

Expiation fee: $315

It is also an offence for a person to supply liquor on or in the vicinity of an unlicensed, regulated premises for the purpose of consumption on the premises [s 129(2)].

Maximum penalty: fine of up to $5,000.

Consumption of liquor in public places during specified events

The Minister or a Council can prohibit the consumption or possession of liquor in specific public places for a specific period by publishing a notice in the Government Gazette. This could be implemented, for example, during large public events such as Christmas Pageants, New Years Eve celebrations, or during the period the Lobethal Lights are available for public viewing.

It is an offence to consume or possess alcohol in a public place at a specific time if it is contrary to such a notice published in the Government Gazette [see s 131].

Maximum penalty: fine of up to $1,250

Expiation fee: $160.

Failing to leave a licensed premises on request

It is an offence for a person to fail to leave a licensed premises without reasonable excuse, after being requested to do so by an authorised person [see s 131A].

An authorised person can request a person to leave the premises if:

Maximum penalty: a fine of up to $5,000.

Requirement to hold a liquor licence

It is an offence for a person to sell liquor without being licensed under the Act. This includes selling liquor whilst a liquor licence is suspended [s 29(1)].

An occupier or person in charge of premises on which liquor is sold (without a liquor licence) commits an offence is they knowingly permit the sale [ s 29(2)].

It is a further offence if a prescribed person (a licensee, employee or person engaged by a licensee, or agent of licensee) sells liquor to another person, reasonably believing (or they out to have reasonably believed) that the other person intends to sell the liquor (without a license), and the other person then sells the liquor without a license [s 29(3)].

Maximum penalty:

For a first offence: a fine of up to $20,000

For a subsequent offence: a fine of up to $40,000.

Unauthorised sale or supply of liquor

It is an offence for a licensee to sell liquor in circumstances in which the sale of liquor is not authorised by their licence [see s 46].

Maximum penalty:

For a first offence: a fine of up to $20,000

For a subsequent offence: a fine of up to $40,000.

It is also an offence for liquor to be sold or supplied to an intoxicated person on a licensed premises [see s 108(1), see also the defence in s 108(2)].

Maximum penalty:

For a first offence: a fine of up to $20,000

For a subsequent offence: a fine of up to $40,000.

From December 2020, the Summary Offences Act 1953 (SA) and Summary Offences Regulations 2016 (SA) set out a number of new criminal offences relating to the transportation and sale of liquor to dry communities.

The amendments (Part 3B Liquor offences) set out new offences and regulations (Part 2A Liquor offences) to give additional powers to police to try to reduce the unlawful sale and supply of liquor in dry communities. Dry communities are designated areas where the possession and consumption of liquor is generally prohibited.

Section 21OA of the Summary Offences Act 1953 (SA) defines sale as:

A prescribed area includes:

A designated area means an area of land designated by the Minister under section 21OD of the Act. The following areas of land have been declared by the Minister as at 5 November 2020:

The prescribed amounts of liquor under sections 21OB(1)(6) and 21OC(2) of the Act are:

If a person is charged with an offence under Part 3B (Liquor Offences) of the Act, police must prove that the substance being supplied, sold or transported was liquor.

The question of whether a substance is liquor can be proven by:

Unless other evidence is provided to show that the substance is not liquor, the above evidence will be considered sufficient to prove that the substance was liquor.

Possession, transportation of liquor for sale

It is an offence for a person to:

(a) have possession of liquor for the purpose of sale; or

(b) transport liquor for the purpose of sale; or

(c) transport liquor, for the purpose of sale, to a place other than a place at or on which liquor may lawfully be sold.

[see s 21OB(1)]

It is also an offence for a person to possess or transport liquor for the purpose of sale in contravention of section 21OB(1) on behalf of another person [s 21OB(2)].

It is not an offence if the possession or transportation of liquor is for the purpose of a lawful sale [s 21OB(5)]. It is presumed (in the absence of proof to the contrary) that the liquor was possessed or transported for the purposes of sale if the amount of liquor exceeds the prescribed amount in the regulations.

If liquor is possessed or transported by a person in contravention of s 21OB(1) of the Act (the first person) it is also an offence for another person to derive a direct or indirect commercial benefit from the unlawful sale of the liquor (if the sale were to occur) and who knew (or ought to have reasonably known) that the first person was in possession of or transporting the liquor for the purpose of sale in contravention of the Act [s21OB(3)].

A defence exists if it can be proven that they believed on reasonable grounds that the liquor was possessed or transported by the first person for the purpose of a lawful sale [s 21OB(5)].

Maximum Penalty:

For a first offence: a fine of up to $20 000

For a subsequent offence: a fine of up to $40 000.

Supply etc of liquor in certain areas

It is an offence for a first person to supply liquor to another person (a third person) if the third person is in a prescribed area [s 21OC(1)(a)].

It is an offence to transport liquor (or possess liquor) with the intention of supplying any of it, or believing that another person intends to supply any of it, to the third person in a prescribed area [s 21OC(1)].

It is presumed (in the absence of proof to the contrary) that the liquor was possessed or transported for the purposes of sale to a third person in a designated area, if the amount of liquor exceeds the prescribed amount in the regulations [s 21OC(2)].

However, a person will not be guilty of an offence under section 21OC(1) if one or more of the following circumstances apply:

[see s 21OC(1a)]

Maximum Penalty:

For a first offence: a fine of up to $20 000

For a subsequent offence: a fine of up to $40 000.

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, COVID-19 or other emergency situation.

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

See Public transport passenger offences.

Aside from barring orders issued under the Liquor Licensing Act 1997(SA) (see Barring Orders under the Liquor Licensing Act), barring orders can also be made pursuant to the Casino Act 1997 (SA) and the Gambling Administration Act 1995 (SA).

Casino Barring Orders

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 (Commissioner of Police’s power to bar) of the Casino Act 1997 (SA).

Pursuant to s 44(3) of the Casino Act 1997 (SA), a licensee of a casino or gaming venue may bar patrons if the licensee suspects on reasonable grounds that a person has:

Casino Barring Orders differ to Gambling Barring Orders made pursuant to the Gambling Administration Act 2019 (SA), which are either made voluntarily or relate to problem gambling where there is a risk of harm to the person or their family - see Gambling Barring Orders below.

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

A Casino Barring Order may be made for a specified period or an unlimited period [Casino Act 1997 (SA) ss 44, 45, 45A].

It is an offence for a barred person to enter or remain in gaming areas contrary to an order. Maximum penalty: $2,500.

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].

Facial Recognition System

The Liquor and Gambling Commissioner may approve the use of a facial recognition system by certain licensed gaming venues. The facial recognition system may record the facial image of a person who is about to enter a gaming area or venue (Gaming Machines Act 2019 (SA) s 40D, Casino Act 1997 (SA) s 40D) for the purpose of identifying barred persons from gaming areas or casino venues. The Commissioner must not approve use of a facial recognition system unless it complies with the regulations and gambling administration guidelines, including:

Licensees will only be allowed to operate facial recognition systems that have been evaluated and approved by the Commissioner.

See Gaming Machines Regulations 2020 [reg 28] and Casino Regulations 2013 [reg 7].

Gambling Barring Orders

There are two types of Gambling Barring Orders that can be made under the Gambling Administration Act 2019 (SA):

These orders can be made by either Consumer and Business Services (CBS), under the authority of the Liquor and Gambling Commissioner, or by certain gambling providers [see s 5 and s 43 for definition of gambling provider].

A gambling barring order limits a person from:

See Gambling Administration Act 2019 (SA) section 43.

Gambling barring orders made by a gambling provider can relate to the specific premises of, or business of, one gambling provider or the premises of several gambling providers [see s 44(4)].

The duration of a gambling barring order (made by CBS or a gambling provider) is for a period specified in the order or for an unlimited period [s 44(4)(c)].

The order will specify its duration. A voluntary gambling barring order made by CBS may specify a minimum period of duration of the order, being not greater than 12 months [s 44(6)(a)]. A voluntary gambling barring order made by a gambling provider may specify a minimum period of duration of the order, being not greater than 3 months [s 44(6)(b)]. Any variation or revocation of a voluntary gambling barring order cannot limit the application of this prescribed minimum [s 45(1)]. A gambling barring order can otherwise be varied or revoked by CBS at any time [s 45(1)].

Gambling barring orders (and any order varying or revoking them) must be in writing and contain certain particulars, including the date on which the order is made and its duration [see s 46(2); Gambling Administration Regulations 2020 (SA) reg 7]. The barring order is of no effect until the written notice has been provided to the barred person [Gambling and Administration Act 2019 (SA) s 46(3)], and a copy must also be provided to the owner/occupier of each place to which the order relates [s 46(4)]. CBS has provided an undertaking that a person can apply for, and receive, a voluntary gambling order in the same day if required.

It is an offence to contravene or fail to comply with a barring order [s 47(1)].

Maximum penalty: $2,500

It is also an offence for a gambling provider, or another person prescribed by regulations, to permit a contravention of a barring order [s 47(2)].

Maximum penalty: $10,000.

An authorised person (a police officer, an agent or employee of a gambling provider, or others prescribed by section 43) can require a barred person to leave a premises (or prevent them from entering a premises) if they reasonably suspect that the person is acting contrary to a barring order [s 49(1)]. An authorised person must follow specific procedures in removing the barred person from the premises, or in preventing them from entering the premises [see s 49(3); Gambling Administration Regulations 2020 (SA) reg 8]. It is an offence for an authorised person to fail to comply with such procedures.

Maximum penalty: $2,500.

Voluntary Barring Orders

A person can voluntarily ask a gambling provider (venue) or Consumer and Business Services (CBS) to bar them from entering a gambling venue [ss 44(2) and (1)]. This includes being barred from hotels and clubs from gaming machines, and casinos. The person can also request that they be barred from specific gambling activities, such as betting on racing, sport, commercial lotteries and instant scratch tickets. A person barred under a voluntary barring order can apply for the voluntary barring order to be revoked after the minimum amount of time written in the order has passed. This minimum period is 12 months for a barring order made by CBS. In any other case the minimum period is 3 months. For more information about voluntary barring visit Consumer and Business Services website.

Voluntary Pre-Commitment System

Under the Gaming Machines Regulations 2020 (Schedule 3), a person can voluntarily sign up to a pre-commitment system to set a budget and receive alerts when the budget is exceeded to monitor their gambling spending. The system also allows the person to set a limit on the amount or time they wish to spend gambling before a gambling session commences. The pre-commitment system applies to electronic gambling machines (poker machines) and online gambling platforms. Consumers can register with the pre-commitment system by:

The pre-commitment system is voluntary, and the gaming license holder must obtain the persons consent to the terms and conditions of the pre-commitment system before the person registers.

The terms and conditions of the pre-commitment system must include:

For more information, visit the Consumer and Business Services website, or the Office for Problem Gambling website.

For immediate support available 24 hours a day, 7 days a week, call the Gambling Helpline on 1800 858 858 or visit gamblinghelponline.org.au.

A prostitute is a person who offers their 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]

Being on premises for an unlawful purpose

A person who has entered, or is present on, primary production premises for an unlawful purpose or without lawful excuse is guilty of an offence.

Primary production premises means premises used for the purpose of primary production activities.

These activities include agricultural, pastoral, horticultural, viticultural, forestry or apicultural activities, poultry farming, dairy farming or any business that consists of the cultivation of soils, the gathering of crops or the rearing or processing of livestock,commercial fishing, aquaculture or the propagation or harvesting of fish or other aquatic organisms for the purposes of aquaculture.

Maximum Penalty:

Where the unlawful purpose is the commission of an offence punishable by a maximum term of imprisonment of 2 years or more—imprisonment for 2 years;

In any other case:

A person commits an offence in aggravated circumstances if, while on the primary production premises, the person:

[Summary Offences Act 1953 (SA) s 17(a1)]

A person found guilty of an aggravated offence is liable to pay compensation to a person for injury, loss or damage to the person, unless exceptional circumstances exist. The exact amount of compensation payable will be determined by the Court.

A person who is on other 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)].

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].

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:

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).

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].

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 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)].

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:

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:

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:

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)].

The Firearms Act 2015 (SA) and Firearms Regulations 2017 (SA) provide a modernised scheme for firearm control in South Australia, facilitate a nationally consistent approach, improve public safety, prevent crime and reduce red tape.

For a summary of offences and penalties under this legislation see Firearms Act 2015 (SA), Firearms Regulations 2017 (SA) Penalties as at December 2021.

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 (including gel blasters), rim fire rifles (not self loading), shotguns (not self-loading, pump action or lever 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), lever action shotguns having a magazine capacity of 5 rounds or less, and all other firearms (not prescribed firearms, handguns, self-loading firearms, pump action shotguns or lever action shotguns having a magazine capacity of more than 5 rounds) 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, pump action shotguns having a magazine capacity of more than 5 rounds, or lever 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)].