Some crimes are more obvious than others – think murder, burglary, arson - but other, more obscure laws on the books in NSW beg the question: what actually defines a crime?
It is a question Macquarie Law School lecturer Dr Andrew Burke tackles in his Juris Doctor Master Class, which quotes the 20th century Privy councillor Lord Aitken: “The criminal quality of an act cannot be determined by intuition, nor can it be discovered by any standard, but one: Is the act prohibited with penal consequences?
Here are four offences in the NSW Crimes Act 1900 that could be making you a criminal, even if the police don’t come knocking.
Blasphemy
Believe it or not, blasphemy is still a crime in NSW – an old common law offence imported from England, and referenced in Section 574 of the NSW Crimes Act, which limits a person’s liability for prosecution to blasphemy which is for the purpose of scoffing or reviling, violating public decency, or tending to a breach of the peace.
It is, says Burke, an example of the sort of outdated law which Parliaments from time to time will eradicate through amendments that, for instance, state the abolition of certain common law offences.
The last prosecution in NSW for blasphemy was in 1871, when an elderly sculptor, William Lorando Jones, was sentenced to two years’ imprisonment and fined 100 pounds after a jury, “without leaving the box”, according to the Sydney Morning Herald’s account of the trial, found him guilty.
According to the SMH’s account, Jones was addressing a crowd of about 100 at the Parramatta Domain when he said the Bible “was the most immoral book ever published, that it was a mass of immorality and a lie, that it was not a fit book for any female to read, it was corrupt and immoral, that Moses was a cruel old wretch and a murderer of the deepest dye, without mercy”.
“The funny thing about blasphemy is that the crime applies only to Christianity, and in our modern multicultural society, where we have people of all faiths and none, it is a total anachronism,” Burke says. “It is a bizarre crime, and just a wonderful example of how our society changes, and of a law just hanging around that pretty much nobody today would consider appropriate.
“But unless Parliament does the work to update the legislation, there is absolutely no reason why the police couldn’t charge somebody in 2022 with blasphemy, except they choose not to – but should it be a matter of police common sense, to work out which crimes are charged and which are not?
“I would have thought it would be better if it was something the Parliament cleaned up properly.”
Releasing balloons
Releasing 20 or more gas-filled balloons into the air has been against the law since the 1990s, when then NSW Premier Bob Carr ensured it became a crime in the Protection of the Environment Operations Act 1997. To release more than 99 balloons is to commit the crime of Aggravated Balloon Release, exposing perpetrators to more than five times the fine applicable for releasing more than 19.
Burke says the environmental impact of balloons that burst in the atmosphere and fall to the ground and into oceans is a genuine issue, and Bob Carr was motivated to enact such a law after witnessing the release of thousands of balloons in the colours of two teams playing in a Rugby League grand final.
But while the law may have changed the behaviour of companies in the business of balloon supplies for big events, almost everybody else is blithely unaware that letting go of 20 helium balloons could result in a criminal record, raising questions about the utility of creating crimes that nobody knows about, Burke says. And no person or company, he says, has ever been prosecuted for balloon release under the Act.
“It raises the interesting argument of, if you have something that is a problem, what is the most sensible way to address it? We tend to maybe create crimes too easily in order to fix something, when community education, or talking to the people who are creating the problem, might be more effective.
“Lawyers can get trained in a narrow way of thinking – if you see a problem, just write a line in an act and make it a crime, problem solved and move on.
“We need to think more broadly about how you effectively change human behaviour.”
Using the wooden spoon
Hitting anybody is an assault, so smacking a child is an assault, and in many European countries it has been explicitly outlawed – but section 61 AA of the NSW Crimes Act creates a ‘defence of lawful correction’ so that parents, or people acting for them, can smack a child if the application of force is reasonable in the context of characteristics such as the age, maturity and health of the child, and is for the purpose of the discipline, management or control of the child.
However, 61AA outlaws the use of belts or sticks or any other objects, and application of force to any part of the head or neck, or to any other part of the body in such a way that it is likely to cause harm lasting more than a short period, Burke explains.
“So you can smack your kid on the bum if it creates no or only momentary mild pain,” Burke says.
This amendment to the Crimes Act came after the election to the NSW Upper House in 1995 of Alan Corbett, leader of the A Better Future for our Children party whose goal was to outlaw smacking of children.
“This was his big achievement; there was a long process of negotiation for the government to get it through Parliament,” Burke says.
“It was very much a compromise for Corbett. Without 61AA, smacking children would just be an assault like any other assault … but I think historically police never charged anyone for it, it was seen as acceptable to correct a child, but this makes it clear it is only acceptable in certain circumstances.
“But how many parents know that 61AA exists, or what it says? And I wonder how many police officers could quote it? So has it actually changed the level of smacking in society, or has that changed because society evolves any way in terms of attitudes to violence?”
Picking flowers
Picking a flower anywhere outside your own garden – from someone else’s garden, or a park, orchard, pleasure ground or avenue - is an act of larceny under Section 140 of the NSW Crimes Act, and therefore punishable by up to five years in prison.
“If you are walking down the street and you see a beautiful flower in someone else’s garden, or in a park, and you pick the flower to give it to someone or to go home and put it in a vase, technically you’re a criminal if it is worth more than $2,” says Burke.
“How you work out how much a flower is worth, I don’t know,” says Burke. “If you steal somebody’s rose, maybe that is worth more than $2 because roses are sort of expensive, but if it’s some flower growing on a weed, then that is just a weed … but how many cops know what a flower is worth?”
Needless to say, says Burke, picking flowers is not widely understood as a crime and
it is an example of a law that would rarely if ever be applied.
“People think crime is like stealing or murdering, and yes they are crimes, but there are thousands of crimes that are only ever looked up when something happens.”
Dr Andrew Burke is a lecturer at Macquarie Law School. Watch his Juris Doctor Masterclass: Define a Crime showcasing a taste of topics taught in Macquarie University's postgraduate Juris Doctor program.
