Criminal Law

Offensive Conduct

Offensive conduct, or offensive behaviour, is the offence of conducting yourself in a way that causes offence to a reasonable person in, near, or within hearing or view of a public place or school. This offence is a ‘contextual’ offence and must be considered by the Court on a case-by-case basis depending on the circumstances. 

This is considered to be a more serious offence than “offensive language” and the law holds that using offensive language is not enough to commit the offence of “offensive conduct”.

The Law 

Pursuant to section 4 of the Summary Offences Act 1988, a person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school. A person does not conduct himself or herself in an offensive manner merely by using offensive language.

Penalties

The maximum penalty for offensive conduct is a fine of $660 and/or imprisonment for 3 months.

Commentary

Although the definition of what is considered offensive conduct has been likened to conduct which is displeasing, annoying or insulting, none of these words are a precise alternatives and the word “offensive” has its own meaning. The test applied to determine if the conduct was offensive is that of whether a reasonable person would be offended by the conduct.

Further, in relation to the criminal law, the conduct must be more than just displeasing or insulting to amount to a criminal offence. The circumstances that the conduct is alleged to have been committed is very important and for that reason, the same conduct may be considered offensive in one context but not the other.

To be guilty of this offence it must be proved by the prosecution that you intended to cause offence by the conduct. However, although intent must be proved, it can be inferred from conduct and the circumstances surrounding the offence. 

For further information on what the Court's approach to what is "offensive" in the criminal law context, see our article on "Offensive Language".

What is a public place?

The definition of “public place” is found in section 3 of the Summary Offences Act and it is defined as a place or a part of premises that is open to the public, or is used by the public, whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, but does not include a school. The definition is therefore very broad and does not always exclude what could normally be considered private premises.

Defences

Pursuant to section 4(3) of the Summary Offences Act 1988, if you can satisfy the Court that you had a reasonable excuse for offensive conduct that otherwise would have been an offence, then you are not guilty of committing an offence. 

Of course, depending on the circumstances of the case, a charge can be defended on the basis that the conduct alleged did not occur; or the conduct alleged was not "offensive" within the contemplation of the criminal law; and/or the conduct did not occur in or near a school or public place.

Most offensive conduct matters that go to Court do not result in a gaol sentence. The most common penalty for an offensive conduct offence is a fine and/or a good behaviour bond. Despite the relatively minor penalties, a conviction for offensive conduct or offensive behaviour could be detrimental to your career and ability to travel. With our experienced criminal lawyers, we may be able to assist you with defending the charge altogether or obtaining a lenient penalty without a conviction.  

If you have been charged with offensive conduct or offensive behaviour, our experts at Prime Lawyers - Criminal Law Division can help. Contact us to make an appointment with a criminal lawyer at your nearest Prime Lawyers office.

We have criminal lawyers located at Sydney, Parramatta, Chatswood, Sutherland and Wollongong.    

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