OFFENSIVE LANGUAGE AND CONDUCT

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Everywhere

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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.

In a nutshell...

Offensive language and offensive conduct are minor criminal law offences that are dealt with by the Local Court. If you have been fined or charged by police, contact our office for a free initial consultation.

In a nutshell...

With no clear definition, you should seek legal advice from our expert criminal lawyers about defending charges or a fine.

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.

In a nutshell...

The prosecution must prove all elements of the offence beyond a reasonable doubt. It looks to what the reasonable person would or feel in the circumstance. Contact our criminal law experts for a free initial consultation about your matter.

Case Study

In Police v Butler, the accused, an intoxicated Aboriginal woman was summonsed to appear in the Local Court for offensive language. Police had been called to her residence due to complaints by her neighbours. During the interaction, she used the word fuck multiple times. The court held that the reasonable person, living near intoxicated persons, would not have been wounded, angered or outraged. The court held that community standards have changed and the court could not be satisfied beyond a reasonable doubt that the language was offensive.

Public order offences

Offensive conduct:

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.

Case Study

In 2015, Sydney activist Danny Lim wore a sandwich board displaying the phrase ‘Tony you cun’t’. He was convicted of offensive conduct by the Local Court, however, the District Court upheld his appeal stating the appellant was making a political statement and had used the term as a play on words.

Offensive language:

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.

Case Study

John is walking down the street when he is stopped and questioned by two police officers. During his interaction with police, he tells the police officers to fuck off. The police charge him with multiple offences including offensive language under section 4a of the Summary Offences Act. While John’s language could be considered offensive to some, his language was directed at Police as a result of an interaction with them and the courts are unlikely to record a conviction.

Obscene Exposure:

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.

Case Study

Jack is driving from Sydney to Newcastle and has a sudden need to urinate. There are no public toilets close by so he pulls over and urinates on the side of the road. Jack does not intend to expose himself, so he uses common sense and stands behind a tree to avoid other members of the public from seeing him.

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Obstructing Traffic:

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

Damaging fountains

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.

Case Study

Peter stops at the traffic lights and Sam approaches his vehicle, angry that Peter cut him off. As Sam reaches Peter’s vehicle, the traffic lights change. The traffic behind them is prevented from moving through the intersection while Sam argues with Peter about the incident. Concerned road users call the Police. Peter and Sam are both issued with a Criminal Infringement Notice of $200.

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.

Case Study

Sarah and James are visiting Hyde Park Sydney. They stop at a fountain and notice coins in the fountain. They decide to throw a coin in the fountain and ‘make a wish’. The coin is considered foreign material and both Sarah and James have committed a summary offence by tossing a coin in the fountain.

Climbing or jumping from buildings and other structures

If you: 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

If you: 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.

Case Study

Peter is a political activist. The day before Anzac Day, he throws red paint over his local war memorial to protest the war in Iraq. The red paint is symbolic of the lives of people who have died during the conflict. Peter has committed a summary offence by throwing red paint over the war memorial. While Peter is making a political statement, members of the public would be outraged over the desecration of the memorial, especially in lead up to Anzac Day. It is therefore unlikely Peter would escape conviction and would likely be required to pay a fine or be required to complete some form of community service.

Case Study

Greg climbed the Sydney Harbour Bridge without permission as a protest to his family court proceedings. This not only put his safety at risk, but it also risked the safety of other members of the public using the bridge. It also obstructed traffic using the bridge as the Police were required to close lanes due for safety reasons. He was issued a Criminal Infringement Notice (CIN) for obstructing traffic and was arrested by Police for climbing or jumping from buildings or other structures.

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.

Case Study

Jack and Sam have been drinking at a pub in Parramatta. They have been at the pub for several hours and consumed a number of alcoholic beverages. They become very loud and security request them to leave the premises. They refuse to leave and security call the Police. The Police escort Jack and Sam from the property and given a move on direction. Half an hour later, Police are called to the same pub as Jack and Sam have attempted to re-enter. The Police have the discretion to issue a Criminal Infringement Notice of $200 each. However, if Jack and Sam still refuse to comply with the move on direction, the Police will arrest them and they will likely receive a criminal conviction resulting in a criminal record.

Violent Disorder

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.

Case Study

Sally and Jerry attend the New Years Eve fireworks on the Sydney foreshore. They are both under the age of 18 and are caught consuming alcohol by Police. The police officers ask Sally and Jerry for identification. They both refuse to provide identification. They are warned that failure to provide identification will result in them being arrested and taken back to the station to prove their identification. They eventually comply with the request and the police officers confirm they are under age. They also do not have adult supervision. The officers confiscate the alcohol and issue them both with a $20 fine.

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

Case Study

Megan and her friends attend a climate change protest in Sydney. As the protest progresses, some of the attendees become violent and start to damage property. Megan and her friends are arrested by Police for violent disorder and are summonsed to appear in the Local Court. The prosecution only needs to prove that Megan and her friends were in the company of two or more people and they used or threatened to use unlawful violence that would cause a person of reasonable firmness present at the scene to free for their safety. Megan needs to prove that while she was in the company of two or more persons, she did not use or threaten to use unlawful violence.

In a nutshell...

A police officer has the discretion to issue a criminal infringement notice (CIN) instead of arresting you for offensive language and offensive conduct. You can appeal a CIN to Revenue NSW or elect to go to court. Contact our office for expert criminal law advice and a free initial consultation.

Disclaimer

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.

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