OFFENSIVE LANGUAGE AND CONDUCT
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Offensive language and offensive conduct are public order offences. They are a hotly debated topic across Australia as offensiveness is subjective. In Ball v McIntyre, the Supreme Court of the ACT recognised that what one person considers offensive, another person may not.
What is offensive language and offensive conduct?
In New South Wales, offensive language and offensive conduct are covered under the offensive behaviour section of the Summary Offences Act 1988 (NSW) and the common law. Common law (case law) is law established through the courts interpretation of legislation, application of previous decisions, etc.
Offensive language and offensive conduct includes:
- Offensive conduct
- Offensive language
- Obscene exposure
- Obstructing traffic
- Unauthorised entry of a vehicle or boat
- Damaging fountains
- Damaging or desecrating protected places
- Climbing on or jumping from buildings and other structures
- Continuation of intoxicated and disorderly behaviour following move on direction
- Possession of liquor by minors
- Violent disorder
Offensive language and offensive conduct offences are dealt with in the Local Court and prosecuted by Police Prosecutors not the DPP. However, for some offences, the Law Enforcement (Powers and Responsibilities) Act NSW (2002) gives Police power to issue penalty notices, also called a Criminal Infringement Notice (CIN). For matters dealt with by the Local Court, fines are based on penalty units set by the Summary Offences Act 1988 (NSW). Each penalty unit is worth $110. For example, 5 penalty units equal $550.
Offensive language and offensive conduct defined
There is no clear definition of offensive language and offensive conduct even though the courts have attempted to establish a definition under common law. The standard of what constitutes offensive language and offensive conduct has changed over time and the common law has largely considered the offence in relation to the wounding of feelings, arousing anger, resentment, disgust or outrage in the mind of the reasonable person who has been exposed to that language or conduct. In other words, it looks to community standards.
By today’s community standards, the words ‘fuck’, ‘fuck off’ and ‘cunt’ might be considered profanity by some, these ‘swear words’ are being slowly absorbed into everyday language as they have been accepted into popular culture and regularly appear in film and music. As a result, the courts are reluctant to enforce fines and charges for the use of these ‘expletives’ as they are usually made in the context of police dealings.
NSW has similar offensive language laws as other states and has looked to the common law of states such as Victoria (Vic) and Queensland (QLD) to help establish a definition, however, no Australian state or territory has successfully resolved this issue. With no clear definition of offensiveness, many legal commentators such as McNamara and Quilter are advocating for the law to be repealed.
What needs to be proven?
In Australia, the prosecution must prove all elements of an offence beyond reasonable doubt. The elements of each public order offence is outlined below.
The courts also look to the mind of a reasonable person in the circumstances. A reasonable person is a hypothetical person who exercises average care, skill and judgment in their conduct. The reasonable person is considered to be contemporary, reasonably tolerant and thick-skinned. Part 11 of the Crimes Act states that when determining the mind of a reasonable person, self-induced intoxication can’t be taken into consideration.
In He Kaw Te v The Queen, the High Court established that when you commit the act, you also need to have intent. Intent is proven if:
You know the circumstances which make the doing of the act an offence, or
You do not believe honestly and reasonably that the circumstances you are innocent.
In other words, the prosecution must prove that you committed the act alleged and that you intended to commit the act, knowing that it was unlawful. When you have been arrested or fined by Police for offensive language or conduct during an interaction with them, the prosecution has difficulty meeting the required intention as it is difficult to prove that a reasonable person in the proximity would be offended by the behaviour or use of the word in the circumstances. It is not a defence to claim you lacked intention because you were intoxicated at the time of the offence.
Public order offences
You must not conduct yourself in an offensive manner in or near, or within view or hearing of, a public place or a school.
The police can issue Criminal Infringement Notice of $200.
The maximum penalty for this offence is a fine of $660 or 3 months imprisonment.
This offence does NOT include the use of offensive language.
It is a defence if you can prove that you had a reasonable excuse for your behaviour. For example, a street brawl is considered offensive conduct, but self-defence or attempting to break up the brawl might be considered a defence.
You must not use offensive language in or near, or within hearing from a public place or school.
Police can issue a Criminal Infringement Notice of $150.
The maximum penalty for this offence is a fine of $660
Alternatives to a fine for this offence may include:
A community corrections order, or
Community service (for those under the age of 18).
The maximum number of community service hours the court can order for this offence is 100 hours.
It is a defence if you can prove that you had a reasonable excuse for your offensive language.
You are not allowed to wilfully or obscenely expose yourself within the view of a public place or school.
The maxim penalty for this offence is a fine of $1,100 or 6 months imprisonment.
You are not allowed to willfully prevent, in any manner, the free passage of a person, vehicle or vessel in a public place.
The Police can issue a Criminal Infringement Notice of $200.
It is a defence if you can prove that you had a reasonable excuse e.g. blocking traffic or pedestrian access due for safety reasons due to an accident.
Unauthorised entry of vehicle or vessel
You cannot enter any vehicle or boat in a public place without the consent of the owner or legal occupier of the vehicle or boat.
The Police can issue a Criminal Infringement Notice of $250.
It is a defence if you can prove that you had a reasonable excuse.
The maximum penalty for this offence is $440
You cannot wilfully :
Damage or deface, or
Enter upon, or
Cause any foreign material or substance to enter into,
Any part of a fountain in a public place.
The maximum penalty for this offence is a fine of $440.
Damaging or desecrating protected places
You cannot willfully:
Damage or deface any protected place
The maximum penalty for this offence is a fine of $440.
A protected place includes a shrine, or monument or statue in a public place, and includes a war memorial or internment site.
You cannot commit any nuisance or offensive or indecent act in, or in connection with any war memorial or internment site.
The maximum penalty for this offence is a fine of $2,200.
A war memorial means:
The Anzac Memorial in Hyde Park Sydney, or
Another place within a public place that has been declared a war memorial, or
A specified shrine, monument, statue or other structure or place within a specified are in the vicinity.
An internment site means a place with a cemetery for the internment of human remains. It also includes a memorial.
Instead of issuing a fine, the court has the discretion to issue a Community Corrections Order imposing community service.
Climbing or jumping from buildings and other structures
Abseil, jump or parachute from any part of a building or structure, or
Climb down or up on or on otherwise descending or ascending any part of a building or other structure, except by use of the stairs, lift or other means provided for,
You are guilty of an offence.
The maximum penalty for this offence is a fine of $1,100, 3 months imprisonment or both.
It is a defence if you have prove you had a reasonable excuse for committing the offence. For example, if you can prove you had a permit.
Continuation of intoxicated and disorderly behaviour following a move on direction
Are given a move on direction by a police officer for being intoxicated and disorderly in a public place, and
You are intoxicated and disorderly in the same public place at any time within 6 hours of being given a move on direction,
You are guilty of an offence.
The police can issue a Criminal Infringement Notice of $200.
The maximum penalty for this offence is a fine of $1,650.
It is a defence if you can prove you had a reasonable excuse for breaching the move on direction.
Possession of liquor by minors
If you are under 18 years of age and you posses or consume any liquor in a public place, you are guilty of an offence.
The maximum penalty for this offence is a fine of $20.
It is a defence if:
You are under the supervision of a responsible adult, or
You had a reasonable excuse for possessing or consuming liquor. For example, you were in possession of a bottle of wine to gift someone over the age of 18.
A police officer can request you to provide your full name and address, and to produce documentary evidence e.g. a drivers licence, to prove you are over the age of 18. If you refuse, or provide false details, you are guilty of an offence.
The maximum penalty for this offence is a fine of $20.
A police officer may seize your liquor if they suspect on reasonable grounds that:
You are under the age of 18, and
You are not under the supervision of an adult, and
You do not have a reasonable excuse for being in possession of the liquor
If you are in the company of two or more people, and you use or threaten to use unlawful violence and your conduct is such that it would cause a person of reasonable firmness present at the scene to fear for their personal safety, then each person using or threatening to use unlawful violence is guilty of an offence.
The maximum penalty for this offence is a fine of $1,100 or 6 months imprisonment.
This offence can take place either in private or a public place.
Criminal Infringement Notices (CIN)
A Criminal Infringement Notice is a police issued on the spot fine for certain summary offences for certain summary offences. It was introduced after a review by the NSW Ombudsman into the dealings of Police where a caution or warning would have been more beneficial and cost-effective than criminal charges resulting in unnecessary contact with the criminal justice system. CINs were viewed as a positive step for Aboriginal people who come into contact with the Police, meeting the recommendations set out by the Royal Commission into Aboriginal Deaths in custody. However, it has resulted in an increase in the number of fines issued to Aboriginal people.
If you have been issued a CIN, you will have 21 days from the date it is issued to pay. There are a number of ways you can elect to pay your fine. They will be listed on the back of the fine.
If you don’t pay your fine on time, you will be sent a penalty reminder notice and given a further 28 days to pay your fine. If you fail to pay after that time, an enforcement order will be issued and you may be required to pay an additional $50 fee.
If you are issued with a CIN and pay the fine, you will not have a criminal record, however, your details will be retained on the COPS database.
You can appeal your CIN two ways:
- Apply to Revenue NSW to review your CIN:
Revenue NSW will request NSW Police to conduct an internal review of the CIN as well as any supporting evidence.
- Elect to go to court:
If you choose to appeal your CIN to the Local Court, you will need to notify Revenue NSW. You will then be issued with a Court Attendance Notice. A Court Attendance Notice will let you know what date, time and court your matter will be heard.
Your matter will be treated like other criminal offences. If you’re unsuccessful, you will be found guilty and will have a criminal conviction listed on your criminal record. You may also be required to pay additional court fees.
If you want to appeal your matter, you should have evidence to support your appeal. You should also contact our office for a free initial consultation.
If you elect to go to court, the court may and you are found guilty, the court issue you with a section 10.
A section 10 is the best possible outcome in the event the court finds you guilty of a larceny offence. There are three orders available to the court under section 10 of the Crimes (Sentencing and Procedure) Act where the court believes it is inappropriate to further punish an offender.
- Section 10 (1) (a)- dismissal with no conviction recorded
- Section 10 (1) (b)- dismissal with no conviction on conditions set by the court. For example, not to commit an offence for a period of two years
- Section 10 (1) (c)- dismissal with no conviction on the condition that the offender enters into an intervention program. For example drug and alcohol counselling.
A section 10 is an acknowledgement of the court that you have committed an offence, however, the court is satisfied that it is out of character and you are unlikely to continue offending. It’s the court’s way of giving you a second chance.
Before granting a section 10, the court will consider:
- Your criminal record.
- Your character, antecedents, age, heath and mental condition, etc
- The trivial nature of the offence
- Extenuating circumstances that lead to the offence being committed
- Any other matter the court considers relevant
The above is general legal information and should not be considered legal advice. You should speak with one of our criminal lawyers for legal advice tailored to your specific legal matter. The penalties listed are maximum penalties. The courts deal with matters on a case by case basis. It should also be noted that there may be court delays due to COVID-19.
Frequently Asked Questions.
If you have been arrested by the Police and issued with a summons, you MUST attend court. However, if you have been issued with Criminal Infringement Notice (CIN), you do not need to attend court. You can pay the fine and the matter will be resolved. However, if you elect to appeal your CIN at court, you will need to attend court.
Receiving a Criminal Infringement Notice from a police officer does not mean you will have a criminal record. However, your details will be retained in the COPS database it will show up on their database every time a search of your details is conducted. However, if you elect to appeal your CIN to the Local Court and your appeal is unsuccessful, it may result in a criminal conviction.
It is highly recommended that you have legal representation when going to court. A criminal lawyer knows the court process and the types of evidence you should have to support your matter. Going to court, especially if it is your first time, can be daunting. Contact our office for a free initial consultation from our expert criminal lawyers.
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