Articles

Imagine a lovely spring day. There’s a gentle breeze and you decide to head down to your local park to fly a kite. You’re running through the park, kite in hand.

Suddenly, you hear someone yell out, “Hey, that kite’s annoying me!”

You decide to pay it no mind. After all, you’re not doing anything illegal, right?

Well, if you live in one particular Australian state, you could be breaking the law.

That State happens to be Victoria.

Strange Laws: Flying a Kite to the Annoyance of Any Person

Under Section 4 of the Summary Offences Act 1966 (Vic), any person who flies a kite or plays a game in a public place to the annoyance of any person will be guilty of an offence.

A public place is defined extensively under Section 3 of the Summary Offences Act. Public places include parks, churches, railway stations, boats, schools, markets and licensed premises that serve alcohol to name a few.

The legislation is titled “Offences relating to the good order of towns etc.” which explains the purpose of the section.

There are other actions in a public place which are deemed illegal by Section 4, Some of these include:

• burning rubbish shavings or other materials;
• opening a drain or sewer with permission of the Local Council;
• obstructing a footpath with a vehicle or goods;
• setting off fireworks without permission of the Local Council.

What is the Penalty For Flying a Kite to the Annoyance of Any Person?

The maximum penalty for flying a kite to the annoyance of any person is 5 penalty units. One penalty unit is currently $165.22. 

This means that the maximum fine for this offence would be $826.10.

This value is steep enough to act as a deterrent and make people think twice about breaking this law.

However, it is also low enough that most people would not bother challenging it in Court. The cost of retaining a lawyer to defend this charge would be significantly more than the maximum penalty.

If a person did decide to take the fine to Court, they could either plead guilty and seek leniency or plead ‘not guilty’ and dispute it.

If you pleaded guilty, you may have been able to avoid any penalty altogether if the Magistrate was persuaded not to convict you. However, it would still appear on your criminal record as a finding of guilt.

This can be contrasted with other states such as NSW where the provisions of ‘Section 10’ allow no conviction to be recorded against a person and the charge not to appear on their criminal record.

Fears that Victoria is Becoming a Police State

While this offence is somewhat trivial, it does lend credence to calls from some in the community that Victoria is fast becoming a ‘Police State’.

With the introduction of the Andrews government’s COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Bill 2020, Victorian have less freedoms than ever before.

Writing in the Australian Financial Review, John Roskam stated, “To think such a law could even get as far as it has is incredible. It demonstrates, again, the nature of the police state Victoria has become.”

Senior members of the legal profession have also criticised the immense power Police will be handed.

In a statement to Parliament, Queens Counsels Stuart Wood AM, Michael Borsky, Georgina Schoff, Philip Crutchfield and former High Court judge Michael McHugh AC, wrote:

“Authorising citizens to detain their fellow citizens on the basis of a belief that the detained person is unlikely to comply with emergency directions by the ‘authorised’ citizens is unprecedented, excessive and open to abuse.”

This is not the first time Victoria has been labelled a Police state.

In 2004 the government attempted to introduce legislation that would do away with the right to silence or any privilege against self-incrimination and have persons who did not co-operate wth Police face an unlimited jail term.

The laws were intended to fight organised crime, however the Victorian Bar Association, the Law Institute and civil liberty groups were quick to point to flaws in the legislation that could lead to its abuse.

Ross Ray QC, the then chairman of the Victorian Bar Council stated:

“We do not say that our concern is based on our lack of confidence in the police. We say that these powers should not be given, even to the most perfect police force.”

In Conclusion…

While the law against flying a kite to the annoyance of any person may seem inconsequential, it does perhaps highlight the ideology of the Victorian legislature.

Given recent events, it should then come as no surprise that the government are using a crisis as an opportunity to extend Police powers even further.