Damon Mcknight
Loitering is not explicitly illegal in Australia, but loitering with the intent to commit a crime or engaging in certain activities while loitering can be considered an offence. The definition of loitering and the laws surrounding it have evolved over time, and they vary across different jurisdictions. In Australia, police officers have certain rights and protocols to follow when dealing with individuals who are loitering in public places. The legality of loitering depends on the specific circumstances, the behaviour of the individual, and the discretion of the police.
Is Loitering Illegal in Australia?
| Characteristics | Values |
|---|---|
| Loitering in public places | Not illegal |
| Loitering with intent to commit an imprisonable offence | Illegal |
| Penalty for loitering with intent to commit an offence | Fine of $5000 or imprisonment for 3 months |
| Penalty for loitering with intent to cause apprehension or fear | 2 years imprisonment or 5 years imprisonment if in contravention of a court order |
| Penalty for loitering with an offensive weapon | $3200 |
| Penalty for loitering with intent to commit an indictable offence | Imprisonment for up to 2 years |
| Police powers to stop loitering | Can ask individuals to leave or state their reason for being there |
| Police grounds for suspecting loitering | Reasonable belief that an offence has been or will be committed, or that the safety of individuals in the vicinity is in danger |
| Prescribed classes for loitering suspects | Individuals with a history of serious or organised crime, drug offences, firearms or weapons prohibition orders, or control/non-association/place restriction orders |
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What You'll Learn
Loitering with intent to commit an imprisonable offence
Loitering itself is not a crime in Australia, but loitering with the intent to commit an imprisonable or indictable offence is a criminal offence. The Offences Against the Person Act of 1861 states that a police officer may take into custody any person found loitering in any public place during the night, provided the officer has good cause to suspect that the person has committed or is about to commit a felony.
In Victoria, Loitering With Intent to Commit an Indictable Offence is found in section 49B of the Summary Offences Act 1966. It is a criminal offence committed by a person who is a known or reputed thief or drug offender and who was found loitering in a public place with the intent to commit an indictable offence. While loitering, the person must have engaged in conduct that will further the commission of that indictable offence.
If a police officer has reasonable grounds to suspect that a person loitering in a public place is of a prescribed class, they may request that the person state their reason for being there. The prescribed class includes people who have been found guilty of a serious and organised crime offence, are proscribed drug offenders, or have a firearms or weapons prohibition order, among other criteria. If a person of a prescribed class refuses or fails to state a satisfactory reason for their presence, they are guilty of an offence and may face a maximum penalty of $5000 or imprisonment for three months.
It is important to note that if charged with loitering with intent to commit an indictable offence, the police interview is not an opportunity to explain your side of the story. The police are likely to have already decided to press charges, and they will aim to obtain admissions that can be used against you in court. Seeking legal advice before the interview is highly recommended.
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Police powers to address loitering
Loitering itself is not a crime in Australia, but police officers have certain powers to address loitering under the Summary Offences Act 1953.
Police officers may ask a person to stop loitering in a public place if they have reasonable grounds to believe that an offence has been or is about to be committed by that person or others in the vicinity. They may also ask a person to stop loitering if they believe that a breach of the peace has occurred, is occurring, or is about to occur, or if they believe that the safety of a person in the vicinity is in danger. If a person does not obey a police request to stop loitering, they commit an offence and may be subject to a penalty of up to $1250 or 3 months imprisonment.
Police officers may also request that a person who is loitering in a public place state their reason for being there if they have reasonable grounds to suspect that the person is of a prescribed class. The prescribed class includes people who have been found guilty of or are reasonably suspected of committing a serious or organised crime offence, proscribed drug offenders, and those with firearms or weapons prohibition orders, among others. If a person refuses or fails to state a satisfactory reason for their presence, they are guilty of an offence and may be subject to a maximum penalty of $5000 or 3 months imprisonment.
It is important to note that the power to address loitering may vary between local areas in Australia, and there may be limitations on police powers due to concerns regarding racial profiling and the unnecessary use of force.
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Loitering as a preceding offence
Loitering itself is not a crime in Australia, but it has historically been treated as a preceding offence to other forms of public crime and disorder. Police officers may ask a person to stop loitering in a public place if they believe on reasonable grounds that an offence has been or is about to be committed by that person or others in the vicinity. This is often the case when criminal intent is suspected but not observed.
In South Australia, the Summary Offences Act 1953 states that a police officer may request a person to cease loitering if they believe on reasonable grounds that an offence has been, is being, or is about to be committed by that person or others in the vicinity. If a police officer has reasonable grounds to suspect that a person loitering is of a "prescribed class", they may ask that person to state their reason for being in that place. A person is of a “prescribed class” if they have been found guilty of or are reasonably suspected of having committed a serious and organised crime offence. If a person of a prescribed class refuses or fails to state a satisfactory reason for being in that place, they are guilty of an offence and may be fined up to $5000 or imprisoned for 3 months.
In other jurisdictions, such as New Zealand, loitering in public is not illegal, but it is an offence to loiter with the intent to commit an imprisonable offence. Similarly, in Ireland, the Criminal Justice (Public Order) Act of 1994 allows the Garda Síochána to order any person loitering in a public place, under circumstances that give rise to a reasonable apprehension for the safety of persons or property or for the maintenance of the public peace, to move on.
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Loitering with intent to cause apprehension or fear
Loitering itself is not a crime in Australia, but it can be illegal to loiter for a particular reason or in a particular place. For example, loitering with the intent to cause apprehension or fear may constitute stalking, which is a criminal offence.
Stalking laws in Australia define stalking as a course of conduct that includes loitering outside or near a victim's residence, business, or any other frequented place on at least two occasions, with the intent to cause apprehension or fear. The penalty for stalking involving loitering can be up to two years' imprisonment or a fine, and up to five years' imprisonment if it involves contravening a court order or possessing an offensive weapon.
Police officers in Australia have the authority to request individuals to stop loitering in public places if they have reasonable grounds to believe that an offence has been or is about to be committed, or if they suspect that an individual belongs to a prescribed class, such as those with a history of serious and organised crime offences. However, loitering laws have been criticised for their subjectivity and potential for misuse, and local variations exist in the extent to which police officers are empowered to arrest or disperse loiterers.
While loitering itself may not be illegal in Australia, it can become a criminal offence when coupled with the intent to cause apprehension or fear, as it falls under the scope of stalking laws. The specific penalties and definitions of stalking may vary across different states and territories in Australia, but the underlying principle of prohibiting loitering with malicious intent remains consistent.
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Penalties for loitering
Loitering itself is not a crime in Australia, but it is often associated with other criminal activities and can be a precursor to more serious offences. As such, penalties for loitering can vary depending on the specific circumstances and the state or territory in which the loitering occurs.
In South Australia, for example, the Summary Offences Act 1953 (SA) gives police officers the power to request that a person stop loitering in a public place if they have reasonable grounds to believe that an offence has been, or is about to be, committed by that person or others in the vicinity. If a person fails to comply with a police request to stop loitering, they can be charged with an offence, which carries a maximum penalty of $1,250 or 3 months imprisonment.
Additionally, if a police officer has reasonable grounds to suspect that a person loitering in a public place is of a "prescribed class" (such as individuals with a history of serious and organised crime, proscribed drug offenders, or those subject to certain court orders), they may request that the person state their reason for being in that place. If the person refuses or fails to provide a satisfactory reason, they can be charged with an offence, which carries a maximum penalty of $5,000 or 3 months imprisonment.
In the Northern Territory, the Summary Offences Act 1923 (NT) states that a person loitering in a public place who does not provide a satisfactory reason for their presence when requested by a police officer may be fined $2,000, imprisoned for 6 months, or both. This Act also outlines circumstances where a police officer may require a person to stop loitering, such as when they believe there is a risk to the safety of individuals in the vicinity or when the person is interfering with the reasonable enjoyment of others in the public place.
It is important to note that the laws and penalties related to loitering may vary across different states and territories in Australia, and the interpretation of loitering as a criminal offence can be highly subjective. In some jurisdictions, loitering may only be prohibited under specific circumstances, such as when an individual is required to register as a sex offender and loiters near schools or other places where children congregate.
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Frequently asked questions
Loitering itself is not a crime in Australia, but loitering with the intent to commit a crime is illegal.
Loitering is defined as "remaining in any one place with no apparent purpose".
Police officers may ask a person to stop loitering in a public place if they believe on reasonable grounds that an offence has been or is about to be committed, or if they suspect the person is of a "prescribed class".
A person is of a prescribed class if they have been found guilty of or are reasonably suspected of having committed a serious and organised crime offence.
The penalties for loitering vary depending on the specific circumstances and the state in Australia. For example, in South Australia, the maximum penalty is a $5,000 fine or 3 months' imprisonment, while in the Australian Capital Territory (ACT), the penalty is $2,000 or 6 months' imprisonment, or both.
