What is a Police Move-on Direction in NSW? - Criminal Defence Lawyers Australia

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A 22-year-old Queensland Senate candidate, Drew Pavlou, has been arrested after holding a sign criticising Chinese President, Xi Jinping in Eastwood.

Here is more on the police power to arrest in NSW.

Pavlou is running for a spot in the Queensland Senate as part of the 2022 Australian Federal election, as part of his party ‘Drew Pavlou Democratic Alliance’.

Kyinzom Dhongdue is a member of the party and is running for the House of Representatives as member for Bennelong, in New South Wales.

An influential policy of the party is strengthening Australia’s democracy and aiming to address the ‘increasing totalitarian ambitions’ of the Chinese Communist Party.

Bennelong includes areas within the Northern Sydney region including Ryde, and parts of Hornsby and Parramatta including Eastwood, Epping, Denistone, and Macquarie Park.

As part of Dhongdue’s campaign, Pavlou joined her and other members to campaign in Eastwood.

Mr Pavlou was holding a sign which read words to the effect of “F*ck Xi Jinping” in Mandarin.

The situation escalated with members of the public yelling at Pavlou.

Vision posted shows police intervening as members of the public yelled at him, with it reported that Pavlou was assaulted, along with someone filming the altercation.

“F*** you, motherf***er,” one bystander screamed at him repeatedly.

Another man punched Pavlou’s sign, yelling: “America has genocide, not Xi Jinping.”

NSW Police confirmed the 48-year-old man who assaulted Pavlou was charged.

However, Pavlou claimed that after the incident he received a call from NSW Police who advised him that they were considering laying charges against him as well.

It is noted that they never confirmed at that stage what the charge would be.

“My point is a simple one – I should be able to insult a dictator like Xi Jinping in my own country without being physically assaulted and attacked.

“Australia is a democracy, and we should be free to insult any leader no matter how coarsely – this is a simple principle of free speech.

‘No way would I have been surrounded by 50 people and physically assaulted if I held up a sign saying ‘F*** Scott Morrison’ in Sydney.” explained Pavlou.

Mr Pavlou returned to Eastwood after this, to protest at night markets held in the square, with supporters.

This time, he was holding a sign stating, ‘Free Tibet, Fee Uyghur, Free Hong Long, Down with CCP’.

It was alleged that whilst the protest was largely peaceful, an incident occurred with supporters of the Chinese Communist Party confronting protestors.

The police then escorted Pavlou away, and demanded that he leave the area, which he refused to do.

NSW Police have since issued a statement in which they stated that: “police were concerned that the unauthorised assembly was causing fear and alarm among the community due to the escalating anti-social behaviour of those present.”

Pavlou was arrested by police and was reported to be charged with refuse/fail to comply with direction under Part 14 for failing to cease the protest, and offensive language for his previous sign.

As part of his bail conditions, he is prohibited from going with 1km of Eastwood or Epping.

Pavlou has vowed to fight the charges, commenting that: “it is a disgraceful smear to say I caused “fear and alarm among the community” for peacefully holding a sign supporting human rights.”

Part 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) sets out the rules for move on directions in New South Wales.

Section 197(1) of the LEPRA provides that a police officer may give a direction to a person in a public place if they believe on reasonable grounds that the person’s behaviour or presence in the place:

Is obstructing another person or persons or traffic,
Constitutes harassment or intimidation of another person or persons,
Is causing or likely to cause fear to another person or persons, so long as the relevant conduct would cause fear to a person of reasonable firmness,
Is to for the purpose of unlawfully supplying or obtaining, procuring, or purchasing a prohibited drug.

The direction must be reasonable in the circumstances for the purpose of reducing or eliminating the obstruction, harassment, intimidation, or fear, or stopping the supply or procurement of prohibited drugs.

It is an offence to not comply with a move on direction without a reasonable excuse, punishable with a maximum fine of $220.

A police officer is not authorised to give a direction in relation to an apparently genuine demonstration or protest, a procession, or an organised assembly.

However, if the police officer believes on reasonable grounds that the direction is necessary to deal with a serious risk to the safety of the person to whom the direction is given or to any other person, it may be given in relation to any such demonstration, protest, procession, or assembly.

In NSW, using offensive language in or near, or within hearing from, a public place or a school is a crime under section 4A of the Summary Offences Act 1988 (NSW).

The maximum penalty applicable is a $660 fine.

A defence is available where the defendant satisfies the court that they had a reasonable excuse for conducting themselves in the manner alleged in the information for the offence.

There is no definition or list to prescribe what language is considered to be ‘offensive’.

Rather, the test is whether a reasonable person, who is ‘tolerant and understanding, and reasonably contemporary in [his] reactions’ would have their feelings wounded or angered, as per Ball v McIntyre (1966) 9 FLR 237.

Numerous recent cases have held that the word ‘f*ck’ will not be considered offensive language, due to the word’s prevalence in today’s society (Police v Butler [2003] NSWLC 2).

Another recent case was that of Sydney ‘icon’ Danny Lim.

Lim wore a sandwich board branded ‘Tony you c*nt”, directed at former Prime Minister Tony Abbott.

Lim’s conviction and fine for offensive conduct was eventually overturned by the District Court.

Judge Scotting held that the sign would not have caused such a significant emotional reaction that would make it offensive.

Furthermore, Judge Scotting deemed that even if the conduct could be deemed offensive, Lim would have had a reasonable excuse, noting that politicians and their views are often subject to criticism in public.

By Poppy Morandin.

Image credit: Rose Makin

Published on 24/05/2022