Defining Offensive Language or Conduct

Section 4 of the Summary Offences Act 1988 states:

  1. 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.
  2. A person does not conduct himself or herself in an offensive manner as referred to in subsection (1) merely by using offensive language.
  3. It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence.

Section 4A Offensive language

  1. A person must not use offensive language in or near, or within hearing from, a public place or a school.
  2. It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence.

Offensive Language or Offensive Conduct Information

Public place means:

(a) a place (whether or not covered by water), or

(b) 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.

School means:

(a) a government school or a registered non-government school within the meaning of theEducation Reform Act 1990 , and

(b) a school providing education (whether secular or religious) at a pre-school or infants’ school level or at a primary or secondary level, and

(c) a place used for the purposes of an establishment commonly known as a child-minding centre or for similar purposes, and

(d) the land, and any building, occupied by or in connection with the conduct of such a school or place.

The courts have previously decided the following places were or were not a public place:

Public place

  • Along passageways of home units
  • In a motorcar on a public street
  • On a train
  • In a car park

Not a public place

  • The lavatory of an office building for the use of female staff, where the general public are not permitted.
  • An Aboriginal reserve.

Penalty

The maximum penalty for offensive conduct under section 4 is:

  1. Maximum fine of  $660; and/or
  2. Imprisonment for 3 months.

The maximum penalty for offensive language (Swearing In Public) under section 4A is:

  1. Maximum fine of $660.

But the legislation also provides that instead of imposing a fine the court may make an order for you to perform community service work where it is appropriate. The maximum number of hours that a person may be required to perform cannot exceed 100 hours.

What amounts to offensive conduct or offensive language?

For you to be convicted of offensive conduct the police need to prove:

  1. That you conducted yourself in an offensive manner
  2. In or near, or within view or hearing from, a public place or a school.

It is important to note that offensive conduct is not proved merely by the fact that offensive language was used, there needs to be something more.

For offensive language charges, the police need to prove the following elements beyond a reasonable doubt:

  1. That you used offensive language
  2. In or near, or within view or hearing from, a public place or school

This is where problems often arise. What amounts to offensive conduct and when is language offensive?

The courts have adopted the reasonable person test in relation to these offences. This means that you will be found to have acted in a manner that is offensive or used words that are offensive if your conduct is against the standard of good taste or good manners, a breach of the rules of courtesy or runs contrary to commonly accepted social rules. But the courts have also commented that the views of the reasonable person are not ‘thin skinned’, but are tolerant and understanding. In defence of these charges, most of the time it comes down to interpreting words or behaviour in this light, to see if an offence has been committed.

The charge of offensive conduct is not meant to be a way for the Police to charge people by places a number of different minor troubles under this category because they don’t breach other criminal laws.  It has been noted by the courts that this charge is not available to ensure punishment of those who differ from the majority. Offensive conduct charges are not meant to put a criminal label on inconvenient, exhibitionist or exuberant behaviour. The purpose of this section is to identify conduct worthy of criminal intervention.

Ultimately, common sense needs to prevail to determine whether conduct or language used amounts to a criminal offence. This is where Benjamin and Leonardo Criminal Defence Lawyers can help you. Because each case is decided differently depending on the surrounding circumstances, it is essential that everything be interpreted very carefully.

Benjamin & Leonardo Criminal Defence Lawyers will examine everything in context to see if your behaviour or the words you used can be construed as offensive under these laws or if they are within categories of ordinary social interaction. They will also see if there was any reasonable excuse, which is a defence to this offence.

Which court?

Offensive conduct and use of offensive language is a summary offence and can only be heard in the Local Court in front of a Magistrate.

Offensive Language or Conduct Defence

  • Duress
  • Necessity
  • Self defence
  • Reasonable excuse

Reasonable Excuse

To excuse behaviour that may fall under this category, you will need to prove that you had a reasonable excuse. This defence is specifically provided for under section 4(3). The prosecution has to prove its case against you beyond reasonable doubt. But when defending this charge, you simply need to prove that you had a reasonable excuse on the balance of probabilities.

Avoiding a criminal conviction

If you are pleading guilty or have been found guilty of either of these offences, a criminal conviction can be avoided if your lawyer can persuade the Magistrate to deal with your matter pursuant to section 10 of the Crimes (Sentencing & Procedure) Act 1999.

Normally when you are found guilty of a crime, a conviction is recorded and you will forevermore have that offence on your criminal record. If the court is convinced to award you a section 10, then no conviction will be recorded and no penalty issued. This means no fine and no imprisonment.

There are different types of section 10s.

  • There is the outright dismissal of charges under Section 10(1)(a), which means that there are no ramifications; no fine and no criminal conviction recorded.
  • Under section 10(1)(b) there is conditional dismissal of the charges where you enter into a good behaviour bond for a period of no more than 2 years. The court can place any restrictions on you that it sees fit in the circumstances. The conviction will be removed from your record after the good behaviour period.
  • Under section 10(1)(c) there is conditional dismissal of the charges where you are required to complete a rehabilitation course or intervention program and complying with any action plan proposed throughout the program.

In deciding whether or not to impose a section 10 order the court needs to consider your:

  • Age
  • Character
  • Criminal record, or lack thereof
  • Health
  • Mental condition
  • The trivial nature of the offence
  • Any extenuating circumstances
  • Anything the courts see fit to take into consideration

Benjamin & Leonardo Criminal Defence Lawyers can give you their expert advice when advising you of the prospect of receiving a section 10 for this offence. They have helped clients receive sentences under section 10 for a number of matters. Their experience will help you to argue in favour of this type of penalty.

Please contact Benjamin & Leonardo Criminal Defence Lawyers for your FREE conference.

FREE CASE EVALUATION