What is the offence of offensive language?
It is an offence under s 4A of the Summary Offences Act 1988 (NSW) to use offensive language in or around a public place or school.
Using offensive language is a summary offence, which means it is a relatively minor crime that is dealt with solely in the Local Court jurisdiction. It has a fine attached and no possibility of imprisonment.
Given the way contemporary standards of society have changed in recent decades, the offence is not regularly enforced. Determining what is 'offensive' has changed along with the development of language and ordinary ideals of polite conduct. Words that people would traditionally consider offensive are now commonly accepted in many different social situations. However, the focus of this offence is on the intent behind the words. The courts have emphasised that the way words are used is much more important than the words themselves.
Elements of the offence:
There are three elements that must be proved by the prosecution for a person to be found guilty of this offence.
- A person used offensive language; and was
- In or near, or within hearing of;
- A public place or school
- What makes language "offensive"?
In recent years there has been several judgments handed down that have found traditionally offensive words (for example, 'fuck', 'shit' and 'cunt') to no longer be indecent in most contexts. Such words have now found their way into general society's common vocabulary. You can hear such language on the radio, in movies rated PG and M, on prime-time TV shows and in newspapers and magazines. It is not uncommon to hear that kind of language while walking down the street or in a busy public area.
In particular, magistrates have found that 'fuck' has "lost much of its punch" and in general is incapable of offending a reasonably tolerant bystander.
However, there are still certain situations where using indecent language will be found to be "offensive" for legal purposes. A long-standing principal of law is that offensive behaviour must be "calculated" to cause a specific negative reaction – like hurt feelings, anger, resentment, disgust or outrage. Therefore, the circumstances of an individual case are very important in the determination of whether language is offensive or not. In a recent case, continually calling a person a 'fucking idiot' in an attempt to threaten and intimidate them was found to be offensive. In another case, use of both 'fuck' and 'dog cunts' to insult certain people and insinuate obscene scenarios about their family members was determined to be a perfect example of offensive behaviour.
In general, merely using the word as an expression of frustration, fear, surprise, affection or embellishment will not amount to offensive conduct. There must be a further intent behind the words to specifically offend people in some way.
- In or near a public place?
It is not necessary to prove that any members of the public actually heard the offensive language. There does not need to be any other people physically present in the public area at the time of the offence. This element focuses on the hypothetical person and whether it is likely they would have been offended had they been present at the time the language was used.
It is enough for the prosecution to prove that a person was present in a public place or speaking loud enough to be heard from a public place to satisfy the element of the offence.
However, the question of whether anyone else was actually present and heard the offensive language is relevant to the penalty. If no one was around to be offended this obviously warrants a far more lenient punishment.
- What counts as a public place or school?
The legislation provides a definition of 'public place'. For this offence it is taken to mean a place or part of a premises that is open to the public or used by the public. It is not relevant whether access to the place is by paid admission or not.
The legislation also provides a definition for 'school'. For this offence a school will include land or buildings used by any government or registered non-government school that teaches pre-school, primary or secondary education. It also encompasses child-minding centres.
Defences available:
There is a statutory defence provided under s 4A(2) of the Summary Offences Act that states a person is not guilty of this offence if they have a "reasonable excuse" for their conduct.
The defendant is required to prove this fact on the "balance of probabilities" – which means they must convince a magistrate that it is more likely than not they had a reasonable excuse for their behaviour. The test for what is 'reasonable' is objective, which means that a magistrate has to consider whether an average, ordinary person would think the excuse for behaviour 'reasonable' in the specific circumstances. The argument is not to be made on the basis of what the defendant themselves thought was subjectively reasonable.
An example of reasonable excuse would be a scenario in which someone has severely injured themselves in public and is reasonably expressing extreme pain.
Penalties:
The maximum penalty for this offence is a fine of $660.
However, the court also has the option to impose a community correction order with community service in place of a fine. A community corrections order involves a period of community supervision and require a person to be "of good behaviour" (and not commit any further offences) for a certain amount of time. The maximum amount of community service work allowed to be attached to community corrections order for this offence is 100 hours.
Relationship with offensive language and arrest:
It should also be noted that the courts have set down an expected standard of conduct for police when dealing with people committing minor offences such as use of offensive language. There is a policy position in NSW that arrest should only be used as a last resort.
The court has stated that police should not arrest a person for using offensive language unless they have no way of getting identification or if there is a risk of the person running away. Where the person is known to police or obtaining identification is a reasonable option, the more appropriate method is to issue someone with a court summons.
This has been an issue when police have made the decision to arrest a person for using offensive language in an inappropriate situation where they had other, less extreme options available. Often people's reaction to arrest for such minor criminal conduct is frustration and escalation leading to further offences such as resist or hinder arrest and assaulting a police officer. In certain case the court has found that evidence of a person's further misbehaviour after arrest is not to be considered if the police improperly arrested the person in the first place.
