Public Order Offences
There are several offences or offence types that can be grouped under the heading Public Order Offences. As the term suggests, these are offences that deal with keeping the good order of the community. The offences are not typically serious in nature, however, most of them do still carry a term of imprisonment as a possible penalty.
The majority of these offences are listed under the Summary Offences Act 1988; the term "summary" referring to offences that are not, by definition, serious offences. There are other pieces of legislation that deal with offences that can generally be considered to fall under this category offences, such as offences against the Law Enforcement (Powers and Responsibilities) Act 2002.
The most common public order offences under the Summary Offences Act are: offensive language; offensive conduct; wilful and obscene exposure; violent disorder; failure to move on; and custody of a knife in a public place. (For more serious offences that generally occur in public, see our articles on affray and riot).
It should be noted that all the above offences are only committed if they take place in a public place or in or near a school.
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.
A failure to move on when requested to do so by a police officer, in some circumstances, can amount to an offence as well. If the person who is asked to move on is intoxicated at the time, then they may be committing an offence under the Summary Offences Act. In other circumstances, whether the person is intoxicated or not, they may be committing a "failure to move on" offence under the Law Enforcement (Powers and Responsibilities) Act.
It is often the case that police unfairly or even improperly charge people with various offences. More often than not, a defence is available and our criminal lawyers are experts at defending these sorts of charges.
If you have been charged with this type of offence and require legal assistance, we invite you to contact your nearest Prime Lawyers office.
We have lawyers with expertise in Public Order Offences located at Sydney, Parramatta, Chatswood, Sutherland and Wollongong.
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.
Offensive Language
Offensive language is the offence of using language in a way which could cause 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.
The Law
Pursuant to section 4A of the Summary Offences Act 1988, a person must not use offensive language in or near, or within hearing from, a public place or a school.
Penalties
The maximum penalty for offensive language is a fine of $660. The Court may order a maximum of 100 hours community service to be performed instead of imposing a fine.
Commentary
As noted above, when someone is charged with using offensive language and, where it is proved that particular language was used, such as common swear words or what may be termed "foul" or "displeasing" language, the Court must consider the language in context. What may be offensive in one set of circumstances may not be in another.
To be guilty of this offence it must be proved by the prosecution that you intended to cause offence by the language. However, although intent must be proved, it can be inferred from language and the circumstances surrounding the offence. If you did not honestly and reasonably believe that the language was not offensive then you can be guilty of the offence.
Pursuant to section 4A(2) of the Summary Offences Act 1988, if you can satisfy the court that you had a reasonable excuse for the language that otherwise would have been an offence, then you are not guilty of committing an offence.
Offensive language is often also charged after someone verbally abuses police. A charge of offensive language often precedes being charged with a more serious offence, such as “resisting arrest”. It is often arguable whether police should be exercising their discretion to charge someone for “offensive language”, and this can lead to a person arguing with police over being arrested in the first place.
The most important consideration in these types of matters is whether or not the language used is "offensive", particularity in the surrounding circumstances.
What is considered "offensive"?
The legislation does not define the term "offensive" and therefore, we need to turn to how the Courts have defined the term and approached the issue. In the Victorian case of Worcester v Smith [1951], the Court found that "offensive" meant "such that is calculated to wound the feelings, arouse anger or resentment or disgust in the mind of a reasonable person..."
This approach has been long accepted and repeated by the Courts, since. In the case of Ball v McIntyre (1966), the Court went further and stated, “Conduct which offends against the standards of good taste or good manners,
which is a breach of the rules of courtesy or runs contrary to commonly
accepted social rules, may well be ill advised, hurtful, not proper conduct ... People may be offended by such conduct, but it may well not be offensive
within the meaning of the section”.
It is also important to consider community standards, which may well change over time. What may have been considered offensive 50 years ago may not be considered offensive today. Essentially, the Courts have found that there needs to be something more than just causing upset or even an "affront" to members of the community, before it can be said that the accused person has caused offence that requires criminal sanction.
In the example given above, where police often charge someone with offensive language and then resist arrest, an experienced criminal lawyer can often successfully defend the charges based mainly based on the fact that the language used was not "offensive", as previously determined by the superior Courts, particularly if it is only the police that are subjected to the language used. One might find it difficult to accept that a police officer is genuinely "wounded" by someone swearing at them, whilst "on the job".
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 4A(2) 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 language alleged was not actually used; or the language alleged was not "offensive" within the contemplation of the criminal law; and/or the words were not spoken near or within hearing of a school or public place.
Although an offensive language charge cannot result in a gaol term, a finding of guilt can still result in a criminal conviction. It is therefore important to obtain competent legal advice if charged with this offence to determine the likelihood of being able to defend the charge, in Court.
If you have been charged with offensive language, 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.
