Sporting venue is defined in section 3 as either a designated sporting venue or a racecourse. A designated sporting venue is a venue for sporting activities prescribed by the regulations; the category is not self executing. A racecourse means a racecourse licensed under the Racing Administration Act 1998. This means any licensed racecourse is automatically covered by the Act, while other sporting venues (e.g. stadiums, arenas) require a specific regulation to be prescribed. The distinction matters because sections 4 and 4A apply differently: section 4 applies only to designated sporting venues during a match, whereas section 4A applies to any racecourse during a race meeting or trial meeting.

Playing field is defined as the playing field or other competition area, including any area between the playing field and any structure intended to be a barrier between competitors and spectators. This captures the traditional field, court, or track surface, and also the buffer zone immediately surrounding it. It does not include spectator stands, concourses, or corporate areas unless they fall within that buffer.

Match is defined broadly: it includes a sporting match, game or competition, and any performance or formalities held or conducted in conjunction with the match. It expressly excludes training sessions or rehearsals. This means the prohibition during a match extends to half time entertainment, award ceremonies, and post match formalities, but not to pre match warm ups or practice sessions unless the venue director authorises the match period differently.

Race meeting and trial meeting have the same meanings as in the Racing Administration Act 1998. The critical point is that the prohibition in section 4A applies not only to race meetings (official race days) but also to trial meetings (practice or barrier trials). The racecourse prohibition therefore operates on virtually every day horses or greyhounds run on the track.

Restricted area of a racecourse is defined in section 4A(2) and includes any racetrack, course proper or other racing surface, parade ring, race day tie up stall, kennel or swabbing area, including any pathways connecting any of those places. It also includes any other area prescribed by the regulations. This is intentionally wide and captures most areas where participants and officials work, while leaving spectator areas in the grandstand or public bar unregulated unless specifically prescribed.

Venue director differs by venue type. For a designated sporting venue, it is the occupier of the venue, or a person authorised by the occupier for a particular match. For a racecourse, it is the controlling body for the race meeting or trial meeting. The controlling body varies by racing code: Racing New South Wales (thoroughbreds), Harness Racing New South Wales (harness racing), or the Greyhound Welfare and Integrity Commission (greyhounds). The venue director has the power to authorise persons to enter the playing field or restricted area, and to authorise persons as authorised officers for the purposes of the Act.

Authorised officer includes any police officer (always) and any person authorised by the venue director for the purposes of the Act. This means that private security personnel can exercise removal, name and address, and photograph powers, but only if properly authorised. The Act does not prescribe any training or qualification requirements for venue appointed authorised officers.

Function and exercise a function are defined to include powers, authorities and duties. This is a standard drafting device but ensures that the Act’s references to an officer’s “functions” cover both enforcement powers and any obligations imposed, such as the duty not to use excessive force.

The primary group affected are spectators and members of the public attending matches at designated sporting venues or race meetings at racecourses. Any person who is not a participant (player, rider, driver), match official, venue staff acting in the control or management of the event, or a person specifically authorised is at risk of committing an offence simply by stepping onto the playing field or into a restricted area. This includes journalists, photographers, support staff, and family members unless separately authorised. The Act places the burden on individuals to ascertain whether they have authorisation; there is no general public right of access to the competition area.

Venue operators and occupiers are affected because they control the authorisation process. They must decide who to appoint as authorised officers, which involves potential liability for misuse of powers. They also must ensure that their security staff understand the ban regime and the record keeping necessary to enforce bans. The Act does not require venue operators to maintain a register of banned persons or to share ban information across venues, although section 7 creates a partial cross venue network for major event venues. Venue operators bear the practical cost of identifying previously banned persons re entering, often relying on facial recognition or ticketing databases.

Controlling bodies for racing codes are affected because they act as venue directors for racecourses. They approve authorisations to enter restricted areas and appoint authorised officers. They also face potential legal challenges if they ban a person incorrectly or if their staff exceed powers.

Police officers are authorised officers by default. They can intervene at any venue even without venue authorisation. The Act gives them removal, name/address, and photograph powers without requiring a warrant or reasonable suspicion of a criminal offence beyond a reasonable doubt only a reasonable suspicion of a contravention is required. This lowers the threshold for police intervention compared to general criminal investigative powers, though the power to demand name and address is also found in other NSW laws.

Persons banned under other instruments are also affected indirectly. Section 7 provides that a person banned under the Sydney Cricket Ground and Sydney Football Stadium By law 2009 or the Sydney Olympic Park Authority Regulation 2007 (now repealed and replaced) is also banned from entering any other major event venue on a match day. This cross venue effect means that a ban imposed at one stadium automatically extends to others without any separate adjudication or notification. The definition of major event venue depends on the Major Events Act 2009, so the circle of affected venues can change as new major events are declared or venues prescribed.

Finally, persons who have never stepped onto a playing field may be caught if they are removed for an alleged contravention. The ban starts upon removal, not upon conviction. A spectator who is mistakenly removed for a perceived invasion (e.g. running onto the field when they were merely leaning over a barrier) is nonetheless subject to a 12 month ban until they successfully challenge the removal in court. The practical difficulty of challenging an administrative ban without a formal decision maker is a significant compliance burden on individuals.

Duty not to enter or remain on the playing field during a match (section 4). This is the core prohibition. It applies to all persons except the four categories listed: participants, match control or management staff, authorised officers, and persons authorised by the venue director or an authorised officer (or members of a class authorised). The duty is strict in the sense that it does not require intent to invade; mere presence without authorisation is enough. However, the provision uses “must not enter or remain,” so a person who inadvertently walks onto the field during a match has already committed the act. The maximum penalty is 50 penalty units.

Duty not to enter or remain in a restricted area of a racecourse during a race meeting or trial meeting (section 4A). Similar structure, with exceptions for riders/harness drivers, authorised persons (by controlling body or authorised officer), control or management staff, and authorised officers. The restricted area is defined in section 4A(2) and includes the racetrack, parade ring, swabbing area, kennels, and any connecting pathways, plus any other area prescribed. The duty applies even if the race meeting is not yet underway; “during” is not defined but likely covers the period from when the meeting is officially open until it concludes.

Duty not to enter a sporting venue while banned (section 8). The ban may be a 12 month ban under section 5 or a life ban under section 6. The duty is to stay out of the entire venue, not just the playing field or restricted area. Contravening this duty is an offence with a maximum penalty of 50 penalty units and also triggers a life ban under section 6(1)(b) if the person is removed.

Duty to provide name and address on request (section 10). An authorised officer who suspects on reasonable grounds that a person has committed or been involved in a contravention of Part 2 may require the person to state their full name and residential address. The person must not fail to comply without reasonable excuse, and must not provide false or misleading information. The maximum penalty is 20 penalty units. A person is not guilty unless the officer warned them that failure to comply is an offence (section 10(3)). This warning requirement is an important procedural right; an officer cannot rely on the generic “you are required to identify yourself” without specifying the penal consequence.

Right to use reasonable force in removal (section 9(2)). This is a power held by authorised officers, not a right of the suspect. However, the limitation to “reasonable in the circumstances” provides a ground for challenging excessive force, either civilly or as a defence to resisting removal.

Right to be authorised to enter the playing field or restricted area. The Act explicitly allows the venue director or an authorised officer to authorise entry. This is discretionary and not a right that can be compelled. However, if a person falls within a class of persons authorised (e.g. media accredited by the venue director), the Act gives them a defence.

Right to pay a penalty notice (section 12). A person issued a penalty notice by a police officer may pay the specified amount (prescribed or $500 default) and avoid court proceedings. This is not an admission of guilt but does not affect the ban (section 12(4)). The right to elect court adjudication remains open if the person does not pay.

Right to have proceedings dealt with summarily in the Local Court (section 14). Offences are summary only, meaning no jury trial and no committal proceedings. This reduces the maximum penalties but also limits the procedural protections available in indictable matters.

The Act creates three tiers of monetary penalties. The primary offences in sections 4, 4A, and 8 each carry a maximum penalty of 50 penalty units. As of 2024, the value of a penalty unit under the Crimes (Sentencing Procedure) Act 1999 (NSW) is $110, making the maximum court imposed fine $5,500 per offence. The offence of failing to provide name or address, or providing false information, carries a maximum of 20 penalty units ($2,200). The Act does not provide for imprisonment for any offence, although failure to pay a fine could theoretically result in a community correction order or other sanction under the Fines Act 1996.

Penalty notices under section 12 provide an out of court settlement mechanism. The amount payable is either prescribed by regulation (not exceeding the court maximum) or the default $500. The penalty notice can only be issued by a police officer, not by a venue appointed authorised officer. This is significant: venue security cannot on the spot fine a person; they must either call a police officer or rely on removal and the automatic ban. The penalty notice amount for the core offences is currently not prescribed in the published regulations, so the default $500 applies. This is well below the court maximum, creating an incentive for minor invasions to be resolved without court proceedings.

The automatic bans are arguably the more potent penalty. A 12 month ban under section 5 or a life ban under section 6 is not imposed by a court; it arises by operation of law upon removal. The Act does not require a conviction, a finding of guilt, or even a formal charge. The removal itself is the trigger, provided the removal is “for a contravention” of the relevant section. This creates a risk that venue security or police may remove a person for a behaviour that does not actually constitute a contravention, yet the ban still takes effect. The only way to challenge the ban is to seek a declaration from a court that the removal was unlawful or that the person did not contravene the Act, but such proceedings are costly and time sensitive, and the ban continues until overturned.

The life ban under section 6 applies in two circumstances: first, if a person is removed for a contravention of section 4 or 4A and has previously been banned under Part 2 from entering that venue (whether or not the previous ban is still in force). Second, if a person is removed for a contravention of section 8 (entering while banned). The previous ban does not need to be in force; a past ban that has expired still counts for the purpose of triggering the life ban. This means a person who received a 12 month ban five years ago and has since complied faces a life ban on a second invasion.

Enforcement powers are broad but not unlimited. An authorised officer may use reasonable force to remove a person (section 9(2)). What is reasonable will depend on the circumstances, including the person’s size, behaviour, and any resistance. Venue appointed officers should be trained in use of force and de escalation techniques to avoid civil liability or criminal assault charges. The power to require name and address is subject to a reasonable suspicion standard and a warning requirement. The power to take photographs under section 11 does not require consent or a warrant; it is solely based on reasonable suspicion of a contravention. This power is likely intended to assist identification for future ban enforcement.

Finally, the Act does not limit other proceedings. Section 12(5) provides that the penalty notice provisions do not limit the operation of any other provision of this or any other Act relating to proceedings. This means a person could be charged with common law trespass or assault in addition to an invasion offence, and the court may impose cumulative penalties subject to double jeopardy principles. Venue operators may also pursue civil remedies such as banning notices or damages for trespass.

The Act operates alongside and does not displace other laws dealing with unauthorised entry, public order, or criminal conduct at sporting events. Its relationship with several specific statutes is either express or implicit.

The Racing Administration Act 1998 is incorporated by reference for definitions of “race meeting” and “trial meeting,” and for the licensing of racecourses. A racecourse not licensed under that Act is not a “racecourse” for the purposes of the Sporting Venues (Invasions) Act, and therefore section 4A does not apply. The controlling bodies for each racing code are defined by reference to their constituent Acts: the Thoroughbred Racing Act 1996, the Harness Racing Act 2009, and the Greyhound Welfare and Integrity Commission (established under the Greyhound Racing Act 2017, though not directly referenced). Those Acts govern the governance and integrity of each code, but the invasion Act delegates to them the role of venue director for racecourses.

The Major Events Act 2009 is referenced in section 7 for the definition of “major event.” The cross venue ban mechanism under section 7 ties into that Act’s regime for declaring certain events as major events and their venues as major event venues. This means that as the Minister declares new major events, the list of venues subject to cross venue bans expands without amendment to the Sporting Venues (Invasions) Act. The cross venue ban also incorporates bans under two now repealed instruments: the Sydney Cricket Ground and Sydney Football Stadium By law 2009 and the Sydney Olympic Park Authority Regulation 2007. The section does not state what happens when those instruments are repealed and replaced; presumably the reference is to the current successors, but the text is static.

The Fines Act 1996 applies to penalty notices issued under section 12. That Act sets out the process for issuing, enforcing, and challenging penalty notices, including the option to elect court adjudication. Importantly, the Fines Act allows for enforcement by way of drivers licence suspension or property seizure for unpaid fines, but the Sporting Venues (Invasions) Act does not create any specific exemption. A person who pays a penalty notice admits neither guilt nor liability but does not affect the ban. The interaction between fine enforcement and ban enforcement is not addressed; a person could lose their licence for an unpaid fine while also being banned from venues.

The Interpretation Act 1987 applies generally, including definitions of “person,” “may,” and other interpretive rules. Section 3(2) notes that notes in the Act do not form part of the Act, limiting their legal effect.

The Act does not explicitly override the Inclosed Lands Protection Act 1901 (NSW) or the common law of trespass. A person who enters a playing field without permission may also commit trespass under that Act, which carries separate penalties. The Sporting Venues (Invasions) Act does not merge the offences; a person could be charged under both, though a court would likely apply the rule against double punishment. Similarly, assault or obstruction of an authorised officer may be dealt with under the Crimes Act 1900 or the Inclosed Lands Protection Act.

The Act does not create a statutory cause of action for wrongful removal or false imprisonment, but the existing common law and tort law remain available. Venue operators and authorised officers should be aware that using excessive force or removing a person without reasonable grounds could lead to civil claims.

Finally, the Act’s interaction with privacy laws is minimal. The power to take photographs under section 11 is not subject to the Privacy and Personal Information Protection Act 1998 (NSW) within the text, but that Act applies to public sector agencies. Police as a public sector agency should comply with that Act’s principles. Venue appointed authorised officers who are private individuals are not directly bound by that Act but may be subject to the Privacy Act 1988 (Cth) if they are organisations covered by it. The Act does not provide guidance on retention or use of images.

The Act has been amended several times, reflecting changes in the sporting landscape and the extension of the regime to racing.

The original Act of 2003 created only the pitch invasion offence (section 4) and the ban regime for “designated sporting venues.” It did not cover racecourses. The commencement was immediate on assent (section 2). Part 2 was originally titled “Pitch invasions” and section 4 only referred to playing fields of designated sporting venues.

In 2005, section 17 and Schedule 2 were repealed by Act No 64 of 2005. Those provisions are not reproduced in the current text, and their content is lost except by reference to the original Act.

In 2007, section 14 was amended by Act No 94 of 2007 to replace references to the Local Court (reflecting the renaming of the Local Courts under the Local Court Act 2007).

The most significant amendments occurred in 2009. Act No 21 of 2009 made multiple changes. It inserted section 4A (racecourse invasions prohibited), creating an entirely new set of prohibitions for racecourses. It amended the heading of Part 2 to “Invasions at sporting venues” to reflect the broader scope. It added definitions for “controlling body,” “race meeting,” “racecourse,” and “trial meeting,” and amended definitions for “sporting venue” and “venue director” to include racecourses. It also amended sections 5 and 6 to extend the ban mechanism to racecourse contraventions. Section 13 was also amended in minor ways (now repealed). Section 3 definitions were updated for the racing bodies.

Later in 2009, Act No 73 of 2009 substituted section 7 entirely. The previous version of section 7 dealt with something else (possibly venue specific bans). The substituted section 7 introduced the cross major event venue ban, incorporating references to the Major Events Act 2009 and the two by laws/regulations. This amendment aligned the Act with the Major Events Act’s framework for major events such as the Olympics, World Cups, and other large events.

In 2016, section 3 was amended by Act No 27 of 2016 to update references to the greyhound racing controlling body following the establishment of the Greyhound Welfare and Integrity Commission, replacing the former Greyhound Racing Authority.

In 2017, Act No 13 of 2017 made further amendments to section 3 in relation to the greyhound controlling body, likely to reflect the transition to the new regulatory regime under the Greyhound Racing Act 2017.

Also in 2017, Act No 22 of 2017 substituted section 12 (penalty notices) and repealed section 13. The previous section 12 may have contained different penalty notice provisions; the current version is the one described above. The repeal of section 13 removed a provision that had already been amended in 2009.

The amendment history shows a pattern of incremental expansion: first racecourses, then major events cross venue bans, then updates to controlling bodies. The core pitch invasion prohibition has remained unchanged since 2003. The regulations have not been included in the source, so any changes to the list of designated sporting venues are not traceable here.

The source text does not reference any decided cases. This is a short Act with summary offences, so most prosecutions would occur in the Local Court and few would be reported in authorised law reports. The Act has been in force for over twenty years, but no appellate decisions are cited in the source.

Understanding the absence of recorded litigation is itself informative. It suggests that the Act’s automatic ban mechanism may be resolving most incidents without court contest. A person removed and banned may simply accept the ban rather than challenge it, given the cost of legal proceedings relative to the value of attending a sporting event. The penalty notice option also reduces the incentive to fight the charge in court.

However, potential grounds for litigation can be inferred from the text. First, the definition of “playing field” and whether a particular area falls within it could be contested. For example, a person might be removed from a tunnel or walkway that is not strictly between the field and the barrier structure. The Act gives no guidance on how to determine boundaries. Second, the requirement that removal be “for a contravention” of section 4 or 4A raises questions about the officer’s state of mind. If the officer removes a person for disorderly conduct in the stands rather than for entering the playing field, the ban under section 5 would arguably not apply, but the Act does not require the officer to specify the reason at the time. A person could be banned without knowing the basis. Third, the “reasonable suspicion” standard for name/address requests and photographs could be judicially tested. What degree of suspicion is required, and can it be based on a security guard’s report rather than the officer’s own observations? Fourth, the warning requirement in section 10(3) could be a source of technical defences. If the officer fails to warn, the name/address offence is not made out.

The cross venue ban under section 7 may also give rise to jurisdictional arguments. A person banned under a by law that is later repealed might argue that the reference to the by law is now inoperative. The text does not provide for transitional provisions for those instruments.

Finally, the operation of the life ban under section 6 could be challenged on administrative law grounds. The ban is automatic upon removal, but removal is a factual determination by an authorised officer that is not appealable on the spot. A person could seek judicial review of the removal decision, but the standard of review is limited. The High Court of Australia has held that a decision to remove a person from a venue is an administrative act, not a judicial one, but the ban is a statutory consequence. There may be some scope to argue that the ban should not apply if the removal was not in fact for a contravention, but this would require the court to find facts.

Overall, the lack of recorded litigation may indicate either that the Act works smoothly for its intended purpose or that the cost of challenging bans outweighs the benefit, leaving venue operators and police with wide effective discretion.

Ban triggers upon removal, not upon conviction. The most consequential feature for a person accused of invasion is that the 12 month or life ban starts immediately upon removal, without any court hearing. Even if the person is later acquitted, the ban may have already run its course (12 months) or be ongoing (life). The Act does not provide for reversal of a ban upon acquittal; the ban is tied to removal “for a contravention,” not to a finding of guilt. A person who believes they were wrongly removed must take proactive legal action to set aside the ban, a costly and time sensitive process.

Life ban for a second removal, even if the first ban has expired. Section 6(1)(a) applies if a person is removed for a contravention of section 4 or 4A and “has previously been banned under this Part from entering the venue (whether or not the ban is still in force).” This means a person who received a 12 month ban ten years ago for an invasion at the MCG and then, ten years later, runs onto the field at the same venue again, faces a life ban. The previous ban need not be current. This creates a permanent record effect from a single transient incident.

Cross venue bans without notice. Section 7 may extend a ban from one venue to another without any notification to the banned person. A person banned from the Sydney Cricket Ground under the by law is automatically banned from any other major event venue in NSW (e.g. Stadium Australia) on major event match days. The Act does not require venue operators to share ban lists or to notify the person of the cross venue effect. The person may discover the ban only when turned away at the gate.

Racecourse restricted area is very broad. Section 4A(2) includes not only the racing surface and parade ring but also “any pathways connecting any of those places.” This could encompass walkways between the stables and the parade ring, which might be used by owners, media, or licensed persons. A person who has permission to be in the stable area but walks via a pathway that is a restricted area may inadvertently commit an offence if they are not specifically authorised for that pathway. The regulation making power adds further areas.

No statutory requirement for signage. The Act does not require venue operators to post signs indicating the boundaries of the playing field or restricted areas, or warning that invasion is an offence. A person may be unaware that a particular area is considered part of the playing field or a restricted area. While ignorance of the law is no defence, the absence of clear demarcation increases the risk of accidental contravention.

Authorised officers include venue security. Venue appointed authorised officers are not required to be trained or accredited. They can remove persons, demand name and address, and take photographs. A mistake by a venue security guard in identifying a person as an invader can lead to a ban that is difficult to undo. The guard’s employer may be vicariously liable, but the individual bears the immediate consequence.

Penalty notice does not affect the ban. Section 12(4) expressly states that payment of a penalty notice does not affect a ban under Part 2. A person who pays the $500 penalty notice may believe the matter is resolved, only to find they are still banned for 12 months. This is a trap for the unwary.

No statutory right to appeal a ban. The Act creates no internal review or appeal mechanism for bans. The only avenue is to challenge the lawfulness of the removal or the validity of the alleged contravention in court, which may require initiating proceedings in the Local Court or the Supreme Court for judicial review. This is impractical for most people.

Playing field includes the barrier buffer. The definition of “playing field” includes “any area between the playing field and any structure intended to be a barrier between competitors competing on the competition area and spectators.” This means the gap between the field and the first row of seats is part of the playing field, even if it is a walkway or advertising hoarding. A spectator who leans over the barrier and steps into that gap commits an offence.

Major event venues can change without notice. Section 7 depends on the Major Events Act 2009, under which the Minister may declare new major events and their venues. The cross venue ban list can expand without amendment to this Act. A person banned from one venue may find themselves banned from a venue that was not a major event venue at the time of their original ban.

For venue operators and controlling bodies: The first step is to ensure that the venue, if not a racecourse, is prescribed as a designated sporting venue by regulation. Without a regulation, sections 4 and 5 do not apply. However, racecourses are automatic. Operators should map the playing field boundaries and, for racecourses, clearly identify all restricted areas under section 4A(2) and any additional areas prescribed. Signage should be posted at all entry points to playing fields and restricted areas stating the prohibition and the penalty consequences.

Operators should appoint authorised officers in writing and provide them with identification cards. Authorised officers should receive training on the Act’s provisions, particularly the reasonable suspicion standard, the warning requirement for name/address requests, and the use of reasonable force. They should also be trained in de escalation and conflict resolution to avoid excessive force claims. Recording of removals (via CCTV or body worn cameras) is advisable to create evidence that the removal was for a contravention, supporting the ban.

For enforcing bans, operators need a system to identify persons who have been removed and banned. This may involve maintaining a register of banned persons, linking to ticketing systems, and using photograph databases from section 11 images. For cross venue bans under section 7, operators should coordinate with other major event venues to share ban lists, though the Act does not mandate this. Failure to enforce a ban may lead to liability if the banned person re enters and causes harm, but the Act does not impose a duty to enforce.

For spectators and members of the public: The simplest compliance strategy is to never enter the playing field or restricted area during a match or race meeting unless explicitly authorised. If unsure whether an area is part of the playing field or restricted area, assume it is off limits. During half time, be aware that the prohibition continues as “during a match” includes formalities and performances held in conjunction with the match. Avoid leaning over barriers; the area between the barrier and the field is still part of the playing field.

If approached by an authorised officer and asked to provide name and address, do not refuse after the officer warns that failure is an offence. The warning must be given; if it is not, you may have a defence. Provide correct information; false information is a separate offence. If removed, do not resist. Resistance may lead to additional charges of assault or obstruction. After removal, note the time and the venue, as the 12 month ban runs from that time. Obtain the name of the officer and any witnesses if possible.

If you believe you were wrongfully removed or banned, seek legal advice promptly. The ban starts immediately and may be difficult to reverse retroactively. Consider requesting an internal review from the venue operator, though no statutory right exists. If litigation is pursued, gather evidence such as ticket stubs, photographs, and witness statements.

For lawyers advising clients: If a client faces a ban or a charge under the Act, check the following: (a) whether the venue was properly designated (for non racecourse venues); (b) whether the area in question was part of the “playing field” or “restricted area” as defined; (c) whether the match or race meeting was actually occurring at the time (training sessions are exempt); (d) whether the client had authorisation from the venue director or an authorised officer (authorisation may be express or by class); (e) whether the removal was genuinely “for a contravention” of section 4 or 4A, as opposed to some other reason; (f) whether the name/address request was preceded by the required warning. For bans in particular, argue that the ban only applies if the removal was for a contravention; if the removal was for a different reason, the ban does not operate. Also check whether the client has previously been banned: a previous ban from a different venue may not trigger the life ban under section 6(1)(a) because that provision applies only to bans from “the venue.” The cross venue ban under section 7 is not itself a “ban under this Part” for the purpose of triggering a life ban, so a person banned only via section 7 may not be subject to the life ban provision on a second invasion at the same venue. This is a subtle distinction but may be arguable.