Criminal Law

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.

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