DISTRESSING NOISE – IS IT AN ASSAULT?

This article examines the meaning of Assault as defined in the Queensland Criminal Code and offers
reasons supporting the categorisation of distressing barking as an assault

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Extract from the

QUEENSLAND CRIMINAL CODE

Act No 37 0f 1995

Division 2—Assault generally
What is an “assault”


113 (1) A person assaults anyone if, without the other person’s
consent—

(a) the person applies force to the other person; or

(b) the person—

(i) by a bodily act or gesture, attempts or threatens to apply
force to the other person; and
(ii) is able, or appears to be able, to apply the force.

(2) A person applies force to anyone if the person, directly or
indirectly—

(a) strikes, touches or moves the other person; or

(b) applies heat, light, electrical or other energy, gas or odour to the
other person to a degree that causes the other person injury or

(c) applies force in any other way to the other person.

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We ordinarily regard assault in purely physical terms such as defined in (2) (a) but (2) (b) offers cause
for us to consider barking as an assault and to require the enforcement authorities to process it that
way.

Heat and light are electromagnetic radiations capable of transferring energy through space. The
energy content is measureable. The most common example of this energy transferrence is sunshine
and it is sufficiently forceful enough to propel spaceships. There is no physical contact whatever
between the sun, as the source of this energy, and humans as its recipients.
In a comparable manner but using an entirely different transmission medium, our earthly atmosphere
is the conductive mechanism for the transmission of cyclic air pressure variations which, when
audible, we call sound. This energy is also measurable and has forceful potential. Once again, there
is no physical contact between the source of sound and the recipient.

In both cases when there is a recipient, energy is transmitted from one place to another by sinusoidal
vibrations. The energy has no effect until it arrives somewhere and is absorbed and converted. With
heat and light the vibrations are purely electromagnetic and with sound they are purely atmospheric.
In both cases the physics behind this transmission of energy are comparable.

In section (2) (b) both heat and light, with no physical contact whatsoever, are defined as potentially
assaultive. It follows that sound must be treated the same way. Noise is defined as any unwanted
sound. All noise is therefore potentially assaultive according to these Division 2 definitions.

Reinforcing this deduction we have in (2) (b) is the useage of the phrase “ .. other energy .. ” where
sound is also forceful, and when it is received, as per s 113 (1) without the recipient's consent,
constitutes assault.

Consolidating the definition of noise as potentially assaultive is the terminology of s113 (2) (c) which
effectively outlaws the intentional application of unwanted force using any method at all.


Summary:

Unwanted noise is assaultive. Barking, when it disturbs or distresses a person, is unwanted noise.
Barking is therefore assaultive.

There is, however, a legal term “Head of Powers” which I understand to mean that where an Act
specifically deals with a particular offence, that Act has precedence over the utilisation of any other.
Barking is a prescribed offence against our states' various Dog Control Acts (by that name or similar)
so a magistrate might refuse to hear any barking case brought under the Criminal Code provisions
examined above.

Nonetheless, Tasmanian magistrates will hear barking cases brought under the general Nuisance
provisions of our Local Government Act so it appears there's some courtroom flexibility in the matter