Should Off*nsive Language be Criminalised?

Public order offences exist in jurisdictions such as Australia, Canada and the United Kingdom. These offences criminalise the use of swearing, offensive or abusive language in public places. In New South Wales, this crime can be found in Section 4A of the Summary Offences Act 1988 (NSW).

4A   Offensive language

(1)  A person must not use offensive language in or near, or within hearing from, a public place or a school.

There is great discourse regarding the relevancy and suitability of these crimes in the modern context of the world. It is shown that the majority of cases prosecuted under this Act are due to the use of four letter words directed at, or in the presence of, police officers. Thus, it must be questioned whether these words are deemed offensive within the general population and whether the offence is unjustifiably exercised. 

Are these Crimes Outdated?

The standard for offensive language can change dramatically overtime, for example, the term ‘bloody’ is generally not considered to be offensive today, however, the term was heavily tabooed in the early 1900’s.

In the case of Worcester v Smith [1951] VLR 316, the court held the term ‘offensive’ is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the minds of a reasonable person. However, this is inconsistent with how the offence is prosecuted. UNSW Law Professor Luke McNamara states 90% of offensive language cases deal with two obscenities; four letter words that begin with f and c. This inconsistency arises as contemporary pop culture is littered with such phrases, for example in music, yet these mediums which depict swearing are heavily endorsed and enjoyed by the general public.

A Tool for Police?

To charge an individual with the summary offence, the police officer must determine at first instance whether the person’s words were offence within the context of the criminal provision.

The New South Wales Ombudsman states an overwhelming majority of offensive language fines and charges are made when four-letter words are used towards, or in the presence of, police. The New South Wales Anti-Discrimination Board suggests offence language crimes are used to target language perceived to undermine the authority of the police, and hence functioning as a tool to main a social and political order in which police command authority in public spaces.

The case of Heanes v Herangi [2007] WASC 175 held that laws that criminalise disorderly conduct, including offensive language play a pivotal role in preventing swear words from inciting others to involve themselves in challenging the authority of police officers. Furthermore, the case of Atkinson v Gibson [2010] QCA 279 held that police officers deserve protection in the course of their duties from disorderly of offensive conduct and language.

However, it has been argued that police should be less sensitive and reactive to swear words. This is reflected by the High Court of Australia, where Judges Gummow and Hayne, in the case of Coleman v Power 220 CLR 1, suggested that by the training and temperament of police officers, they must be expected to resist that sting of insults directed at them. In the same case, Justice Kirby stated that police officers are expected to be “thick skinned and broad shouldered” in the performance of their duties.

If you, or someone you know requires criminal legal advice, please contact Rep-revive Criminal Lawyers for assistance on 04 1999 8398.