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Going for a night out? These are the laws you need to be aware of

Potts Lawyers > Criminal Law & Offences  > Going for a night out? These are the laws you need to be aware of

Going for a night out? These are the laws you need to be aware of

Article by Danielle Warren, Criminal Lawyer

 

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In 2014, the Queensland government passed laws about how you can behave at or near places where alcohol is being sold and supplied.  Police also have powers to respond quickly to anti-social behaviour around these areas.  The areas include licensed premises (such as bars and clubs), special areas known as ‘safe night precincts’ or events where alcohol is being sold or served.  The laws were introduced to minimise alcohol and drug-related violence, disturbances, and public disorder in certain areas.

It would be wise to read this before you leave for a night out.

What offences could I be charged with if I have acted in an anti-social way at or near these areas?

If you have acted in a violent or an anti-social way at or near places where alcohol is being served, you could be charged with:

  • Being drunk in a public place;
  • Drinking in public;
  • Urinating in public;
  • Entering or attempting to enter premises when refused entry;
  • Being a public nuisance;
  • Common assault;
  • Assault occasioning bodily harm;
  • Grievous bodily harm;
  • Unlawful striking causing death;
  • Wounding;
  • Serious assault against a police or public officer (including ambulance services); and
  • Affray.

Depending on the charge and the circumstances, the police may issue you with an infringement notice (fine) or a Notice to Appear in court.  For more serious offences and circumstances, you may be granted bail by police at the watchhouse, or your bail may be refused and you will be kept in custody and need to apply to the court for bail.

By pleading guilty in court, these offences may be recorded on your criminal history.

It is important you obtain legal advice immediately if you are with the police or have been charged with an offence.

Can I be charged with drinking in public?

Trying to save some money by having “pre-drinks” before going out?  If you are caught drinking alcohol in a pubic place, you could be charged with an offence and issued with an infringement notice.  Please note that drinking in your car can also be an offence in Queensland.

If I have been drinking, can I go and ‘sleep it off’ in my car?

You can be charged with a drink driving offence in Queensland if you are over the legal alcohol limit and ‘in charge’ of your car.  Sleeping in your car, even in the back seat, can place you at risk of  being charged with this offence.  You may be ‘in charge’ of your car and charged with a drink driving offence even if police haven’t seen you driving.

Penalties and disqualification of your driver’s licence may apply, so it is important that you receive legal advice if you have been charged with a drink driving offence.

What happens if I commit an offence while I am drunk in a public place?

For some offences, it is a circumstance of aggravation if you were adversely affected by an intoxicating substance and committed the offence in a public place.  These offences include:

  1. Affray;
  2. Grievous Bodily Harm;
  3. Wounding;
  4. Common Assault;
  5. Assault Occasioning Bodily Harm;
  6. Serious Assault; and
  7. Assault/Obstruct Police.

You may be adversely affected by an intoxicating substance if any of the following applies:

  • you have a high range alcohol reading in your blood or breath (i.e. 0.15% BAC);
  • you have any amount of a drug prescribed (for example, cannabis, ice, MDMA/ecstasy) by regulation is present in your saliva; or
  • you fail to provide a sample of your breath/saliva as required by the police.

If you are convicted of any of the above offences with the circumstance of aggravation, the court must, whether or not they impose any other penalty, impose a community service order.

A community service order would require you to complete at least 40 hours, but not more than 240 hours, of unpaid community service within a certain period of time.  You cannot leave Queensland without the permission of the Probation and Parole office while you are subject to a community service order.

Do I need to get legal advice if I am charged with an offence?

It is very important you obtain legal advice if you are charged with an offence after a night out.  Being charged with or convicted of an offence, particularly with allegations of violence, could have a significant impact on your employment, ability to stay in Australia (if you are a non-Citizen), travel plans, family law proceedings, and many other aspects of your life.

There could also be additional orders made if you plead guilty, such an banning orders or community service orders, that may restrict where you can go and what you’re allowed to do.

You should obtain specialised advice before making any decisions to plead guilty or not guilty in court to any offence.

Can the police search me for drugs or anything else?

There are very specific rules about when police can search you for drugs or any other items.  Generally, police cannot search you without a search warrant or your consent. However, there are some circumstances where police are allowed to search you without either of these things.   It is extremely important that you obtain urgent legal advice if you are stopped by police.  We have a 24 hour emergency line for situations like these (0488 999 980).

What is a police banning notice?

A police officer can issue you with a notice banning you from certain places if you have behaved in a disorderly, offensive or violent way at or in the vicinity of:

  • a licensed premises;
  • a safe night precinct; or
  • an event at which alcohol is being sold,

if you present an unacceptable risk of:

  • causing violence at those places;
  • affecting the safety of other people at those places; or
  • disrupting or interfering with the peaceful passage, or reasonable enjoyment of other people at those places.

A police banning notice can only be given to you if you are 17 years or older.

A police banning notice can stop you from entering or remaining at the following places during stated days or stated times:

  • a licensed premises;
  • a safe night precinct;
  • an event at which alcohol is being sold; or
  • an area which is a reasonable distance to any of the above.

The police banning notice will take effect from the day and time you are served with it, and you will be required to leave that area immediately. These banning notices cannot stop you from entering your own home, place of employment or place of education.

Before giving you a police banning notice, the police officer must explain to you the effect of the notice, how long the notice will last and the consequences of disobeying the notice. The police officer should also let you know that the banning notice may be cancelled or extended by a police officer and that you can apply to the Commissioner of Police to have the notice amended or cancelled.

It is a criminal offence to disobey a police banning notice.

If you have been served with a police banning notice or have been charged with disobeying a police banning notice, you need to obtain legal advice.

Where are the ‘safe night precincts?’

The following areas in Queensland are considered safe night precincts:

  • Airlie Beach CBD;
  • Brisbane CBD;
  • Broadbeach CBD;
  • Bundaberg CBD;
  • Cairns CBD;
  • Fortitude Valley;
  • Gladstone CBD;
  • Inner West Brisbane;
  • Ipswich CBD;
  • Mackay CBD;
  • Rockhampton CBD;
  • Sunshine Coast (Maroochydore, Mooloolaba and Caloundra);
  • Surfers Paradise CBD;
  • Toowoomba CBD; and
  • Townsville CBD.

The maps for these areas can be found in Schedules 2 to 16 of the Liquor Regulation 2002.

Types of police banning notices

There are two types of police banning notices:

  1. initial police banning notice; and
  2. extended police banning notice.

You will first be given an initial banning notice. An initial police banning notice can last up to 10 days from the start time listed on the notice.

Once you have been given an initial police banning notice, a police officer may serve you with an extended police banning notice, which can extend the duration of the banning notice, ban you from additional places or ban you for additional days or times.  This must be done at least 3 days before the ending of the initial banning notice.

The police should only give you an extended police banning notice if they are satisfied that it is necessary in the circumstances (for instance, you have been charged with an offence).

An extended police banning notice can last up to 3 months after the starting time of the initial police banning notice.

Can I apply to have the police banning notice amended or cancelled?

Yes. You can apply to the Commissioner of Police to have a police banning notice amended or cancelled if the banning notice:

  • prevents you from entering, remaining in or travelling to your home, place of employment or place of education; or
  • is causing, or will cause, undue hardship to you or a member of your family.

For an initial police banning notice, you must apply for the notice to be amended or cancelled within 5 days of being served with the notice.  For an extended police banning notice, you can apply for the notice to be amended or cancelled at any time.

If you are applying to have a police banning notice amended or cancelled, you should get legal advice.

How else can I be banned from certain areas?

 You can also be banned from entering or being near a licensed premises, a safe night precinct or an event at which alcohol is being sold by:

  • a condition of your bail if you have been charged with an offence; or
  • a banning order made by a court.

 When can the court making a banning order?

 A court may make a banning order if

you have been convicted of—

  • an offence that involved the use, threatened use or attempted use of unlawful violence to a person or property; or
  • trafficking in or supplying dangerous drugs; and

having regard to the evidence available to the court, they are satisfied that the offence was committed in licensed premises or in a public place in the vicinity of licensed premises; and

they are satisfied that, unless the order is made, the offender would pose an unacceptable risk to—

  • the good order of licensed premises and areas in the vicinity of licensed premises; or
  • the safety and welfare of persons attending licensed premises and areas in the vicinity of licensed premises.

The banning order may be in addition to any other order made by the court.  A court may make a banning order whether or not it records a conviction.

Similar to a police banning notice, a court banning order can prevent you from entering or remaining at the following places during stated days or stated times:

  • a licensed premises;
  • a safe night precinct;
  • an event at which alcohol is being sold; or
  • an area which is a reasonable distance to any of the above.

It is a criminal offence to disobey a court banning order.

Can the police take my photo and distribute to bars and clubs?

A police officer can detain you to take your photo if you have been banned from entering licensed premises, a safe night precinct or an event at which alcohol is being sold.

If the court has made a banning order, they can also make an order for you to attend a police station within 48 hours of being sentenced to have your photo taken.

Your photo can be distributed to licensed premises (bars, clubs, etc.) in order to prevent you from entering the places stated in the order.

Your photo cannot be used for any other purpose other than to prevent you entering the places stated in the order.   There are rules about when a photo taken of you for this purpose should be destroyed. You should get legal advice.

Do I need legal advice?

You should obtain legal advice if you:

  • have been given a police banning notice or a court banning order;
  • want to apply to the Commissioner of Police to have a police banning notice amended or cancelled;
  • want to appeal a decision about a police banning notice;
  • are with the police; or
  • have been charged with a criminal offence.

 What can we do for you?

 We can assist you in the following ways:

  • dealing with the police;
  • representing you in court, whether you decide to plead guilty or contest your charges;
  • obtaining the best possible penalty outcome in your circumstances;
  • helping achieve “no conviction recorded” if possible and preserve your employment and travel options.

 

 

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Danielle is one of Potts Lawyers’ criminal lawyers. She holds a Bachelor of Laws and a Bachelor of Criminology and Criminal Justice from Griffith University. . Danielle is thorough and frank in her dealings with clients, ensuring that they understand every step of their matter, how it will proceed through the criminal justice system and all the options which are available. . Danielle regularly advocates for clients who are charged with serious offences and are at risk of imprisonment.  She has had exposure to an array of criminal law proceedings, which has placed her in good stead to effectively negotiate and advocate for clients. . Danielle has also developed expertise in the operations of the domestic violence court. . Danielle understands the importance of providing strong, competent and diligent legal representation without forgetting that an empathetic supportive approach helps clients through what is, for most, a highly stressful experience. . Danielle appears regularly in the Magistrates, District, and Supreme Courts across Queensland, and often travels to regional areas to represent her clients.

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