In Australia, the criminal laws prohibiting offensive conduct and language are not tied to causing harm to others or to property, and consequently can be deployed in a broad range of situations.
1 Offensive and/or indecent conduct may be an aggravating element of other offences.
2 Notwithstanding its seemingly neutral stance, offensive conduct crimes have tended to entrench rather than redress discrimination against minorities. Although offensive conduct and language crimes in Australia could be used to criminalise acts of racial vilification, empirical evidence has revealed that these laws tend to be enforced against minorities.
As Wojciech Sadurski points out, this pattern of law enforcement “over-emphasises the seriousness of insults against majority (in particular, against enforcement agents themselves) and undervalues insults against disadvantaged minorities”: “Racial Vilification, Psychic Harm and Affirmative Action”, T Campbell and W Sadurski (eds), Freedom of Communication (Aldershot: Dartmouth, 1994), p 90. As we shall examine below (see p 792), there is empirical data in New South Wales revealing that offensive conduct crimes have a disproportionate impact on Indigenous communities, being used primarily to deal with young people who swear at the police or otherwise demonstrate disrespect to authority.
Rather than resort to the principle of equality and affirmative action for drawing distinctions between cases, Sadurski justifies the prohibition of offensive speech on the ground that it constitutes a type of “psychic injury”.
To warrant criminalisation, offensive epithets must:
- constitute personally abusive insults;
- be addressed in a face-to-face manner;
- target a specific individual and be descriptive of that individual; and
- be addressed to an individual unable to avoid the assaultive message…
There are some signs that the courts are imposing tougher thresholds for the criminalisation of offensive conduct, particularly in cases where there was no intention to cause hurt to another person and/or the conduct has an obvious political dimension. Perhaps mindful of the potentially discriminatory and repressive uses of offensive conduct laws, some judges have sought to restrict the scope of these crimes by requiring the offending conduct to be placed in its broader political and social context…
As with other public order crimes, police discretion is crucial in fixing the limits of offensive conduct within public places. Offensiveness is largely determined by police conceptions of public decency and “good order”. While offensiveness is “objectively” determined, the response of the police in attendance, as an evidential matter, will be crucial in identifying the likely emotional response of the reasonable, hypothetical person…
Fault Element: Deliberate or Accidental Offense
An important safeguard imposing limits on the scope of offensive conduct or language crimes is the requirement of an intention to arouse feelings of anger, resentment, disgust or outrage in others. Historically, the courts have not required proof of fault for minor public order crimes such as offensive conduct. Although the commitment to subjectivism remains weak for most public offences, some courts have emphasised the importance of intention in cases where the crime carries a penalty of imprisonment: Jeffs v Graham (1987) 8 NSWLR 292.
The requirement that the prosecution must prove that offensive behaviour was “intended” was affirmed in Daire v Stone (1991) 56 SASR 90. In this case, the accused was charged with behaving in a “disorderly manner” in a public place contrary to s 7 of the Summary Offences Act 1953 (SA), which expressly included behaving in an “offensive manner”. The allegation was that the accused had “eyed off” females in a store. The charge was dismissed and the prosecution appealed. The Supreme Court of South Australia (at 93, per Legoe J) dismissed the appeal by the prosecution on the ground that the offence of disorderly behaviour requires proof beyond reasonable doubt that:
- there is a conscious and deliberate course of conduct by the accused person which constitutes this interference with the comfort of other people such as to leave the tribunal of fact with no reasonable doubt that the conduct of the accused person was intentionally done to bring about such interference.
- On these facts, there was no evidence of the purpose or intention of the accused so to establish that the conduct was directed at the victims.Since obscene language is often used unconsciously as a means of linguistic emphasis or general expletives, requiring a proof of subjective fault is an important limitation on the scope of this offence.
Intentional conduct may be distinguished from conduct that is intended to cause offense. In relation to the latter, the strength of the judicial commitment to subjectivism may be doubted following Police v Pfeifer (1997) 68 SASR 285. In this case, the accused wore a t-shirt in public emblazoned with the words “Too Drunk to Fuck”. He was convicted of behaving in an offensive manner contrary to s 7 of the Summary Offences Act 1953 (SA). The Supreme Court of South Australia, dismissing the appeal, held that s 7 did not require the prosecution to prove intention or knowledge. The Court reviewed recent authorities that had favoured a subjective fault requirement for offensive conduct crimes.3 Applying the principles laid down by the High Court in He Kaw Teh v The Queen (1985) 157 CLR 523, the Supreme Court held that the presumption that intent or knowledge is an essential element of s 7 had been rebutted… Doyle CJ, with whom Debelle and Lander JJ agreed, attached particular relevance was the language of the section (noting that other crimes of offensive-ness in the Act expressly required intention) and the subject matter of the provision (at 292):
It appears to me to be a provision intended to protect members of society from disturbance and annoyance through offensive behaviour, intended to prevent the sort of disputes and disturbances that might arise if such behaviour is not prevented by law with the conse-quence that members of society react to it or resist it in other ways. To convict only those who intentionally or knowingly offend will achieve a good deal, but does not go that extra step of requiring members of society to take care to ensure that they do not breach generally accepted standards of behaviour.
While the prosecution need not prove intention or knowledge, the defence may raise an honest and reasonable belief that the behaviour would not be offensive according to community standards of decency.
Measuring offensiveness: the reasonable person test
Attempts by the police to suppress conduct they deem offensive have not always been successful. The courts have imposed some limits on the scope of offensiveness in cases where the conduct is obviously “political”. The meaning of offensiveness in the context of a political demonstration was considered in Ball v McIntyre (1966) 9 FLR 237. In this case, the police attempted to prevent an anti-Vietnam protest outside Parliament House in Canberra. Desmond Ball, a university student, had climbed on a statue of George V and hung a placard that read “I will not fight in Vietnam”. The accused refused to remove the placard or climb down, as requested by the police. When he eventually came down he was arrested and prosecuted for behaving in an offensive manner in a public place contrary to s 17(d) of the Police Offences Ordinance 1930-1961 (ACT): now see s 546A of the Crimes Act 1900 (ACT).
Reflecting the sensitivity and division within the community over Australia’s military involvement in Vietnam, the relevant behaviour deemed offensive was carefully constructed by the arresting police officers. At the trial the police emphasised that neither the political nature of the demonstration nor the student’s refusal to obey their instructions had caused them offense. Rather the police testified that it was the accused’s act of climbing on a public monument and hanging a placard (in effect, using the statue for a non-designated purpose) that had caused offense. As empirical studies have verified, the case was a typical application of offensive conduct crimes, where the only “victims” offended by the accused’s conduct were the police officers themselves…
The critical issue in this case was whether the student’s behaviour was “offensive”. Although the term was not defined in the Act, Kerr J held (at 243) that to be offensive, the behaviour must be “calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person”. By applying an objective test, the political context of the accused’s behaviour could be introduced as a relevant factor. As Kerr J acknowledged (at 244),
The average man [or woman], the reasonable man [or woman], being present on such an occasion, would readily see that the defendant was engaged in a political demonstration. He [or she] would doubtless think that climbing on the pedestal and placing the placard on the statue was rather foolish and a misguided method of political protest, that it offended against the canons of good taste, that it was in that sense improper conduct, but I do not believe that the reasonable man [or woman] seeing such conduct to be truly political conduct, would have his [or her] feelings wounded or anger, resentment, disgust or outrage roused.
And later (at 245),
I recognize that different minds may well come to different conclusions as to the reaction of the reasonable man [or woman] in situations involving attitudes and beliefs and values in the community, but for my part I believe that a so-called reasonable man [or woman] is reasonably tolerant and understanding, and reasonably contemporary in his [or her] reactions.
An objective standard of “offensive conduct” which explicitly provides room for dissent appears to be more protective of political protest. It avoids the problems associated with breach of the peace, where the right to engage in peaceful and otherwise lawful conduct is held hostage to the subjective responses (however unreasonable) of a hostile audience. Under Kerr J’s definition, the political motives behind the accused’s words and conduct are relevant to determining offensive-ness. In this sense, it may be viewed as an exception to the general rule that motive is irrelevant to the criminal law…
In many respects Ball v McIntyre (1966) 9 FLR 237 is an exceptional case. It stands in stark contrast to the approach taken by the English courts where the question of offense is regarded exclusively as a matter of fact for the tribunal. In Brutus v Cozens (1972) 56 Cr App R 799, the accused disrupted a tennis match at Wimbledon throwing leaflets protesting against apartheid around the court (one of the players was South African). The incident lasted two to three minutes before he left the court voluntarily. He was charged with using “threatening, abusive or insulting” words or behaviour likely to cause a breach of the peace contrary to s 5 of the Public Order Act 1936 (UK). The magistrate dismissed the charge on the ground that the accused’s conduct was not “insulting”. The prosecution appealed to the Divisional Court, which held that the conduct could be insulting as a matter of law and remitted the matter to the magistrate.
The accused appealed to the House of Lords. The case provided their Lordships with an opportunity to consider the meaning of the phrase “insulting words or conduct”. The court held unanimously that the determination of whether words or conduct was “insulting” is a question of fact for the tribunal. This does not mean that judges have no role to play in interpreting statutes. As Lord Reid pointed out (at 804), in every case, the proper construction of a statute is a question of law for the courts. For this offence, Parliament intended that the words used should be given their ordinary meaning "It is for the tribunal which decides the case to consider, not as law but as fact, whether in the whole circumstances the words of the statute do or do not as a matter of ordinary usage of English language cover or apply to the facts which have been proved".
Lord Reid rejected the definition of offensiveness proposed by the Divisional Court, namely, that the conduct must affront other people, demonstrate a disrespect or contempt for their rights and constitute behaviour that reasonable persons would foresee is likely to cause resentment or protest. This test was not dissimilar to the definition of offensive conduct offered by Kerr J in Ball v McIntyre above. Lord Reid pointed out (at 805) that the qualifying adjectives, “threatening, abusive or insulting”, had been employed by Parliament to define the limits of free speech. Conduct would not be caught by the section provided that a person’s words or behaviour did not transgress these limits, even though it posed some threat of disorder. In light of this purpose, the terms required no further elaboration. In relation to insulting words or behaviour, Lord Reid rejected the dictionary definition approach favoured by the Divisional Court: “There can be no definition. But an ordinary sensible man knows an insult when he [or she] sees or hears it”. He later stated (at 806): “Insulting means insulting and nothing else”.4 The ordinary meaning test for offensive conduct leaves the police, prosecutors, judges and juries with a broad discretion for defining the relevant legal standards, and mirrors the definitional approach taken to offences relating to sexual indecency, obscenity and dishonesty: see Chs 12 and 13.
It is important not to overstate the differences between these two approaches. Whether the courts adopt an objective test based on the “reasonable person” or an “ordinary usage” approach to offensive conduct, the standards being applied are determined by reference to the wider community rather than the “victims” (including the police in attendance) or the tribunal determining the matter. But who is “the community” in this context? Do we comprise the community of a broad cross-section of society, both young and old? Or is it drawn more selectively and respectably from law-abiding and “right-thinking” persons whose conduct would not ordinarily come to the attention of the police? Although legal definitions based on the hypothetical reasonable or ordinary person are represented as external and neutral standards, they are in fact highly discretionary. As Lacey and Wells point out in Reconstructing Criminal Law (2nd ed, London: Butt, 1998), p 44:
Where “reasonableness” tests are in play, doctrine fails to ask whose standard is the objective standard: who, in other words, is the “reasonable person”? The operation of “objective” tests in fact results in highly discretionary regulation. The tribunal here is effectively constructing the standard against which the defendant is being judged: the legal process goes on to legitimise that standard as “objective” and neutral.
In determining the ordinary or reasonable response to behaviour alleged to be offensive, the tribunal of fact will invariably defer to the judgment of the police. In determining the likely reactions of the “reasonable person”, the tribunal may regard the evidence of police as the best guide of what reasonable and respectable persons would find offensive. In many cases the assessment of the reasonable person and the police officers in attendance converge. For example, in Ball v McIntyre, the police claimed that neither the political nature of the student’s conduct nor the disrespect directed to a deceased monarch was offensive. In this respect, Kerr J concluded (at 240) that “the sergeant’s approach is that of a reasonable man”.
Even within liberal democracies that tolerate some measure of political dissent, there is a danger that crimes of offensiveness operate unfairly against unpopular and/or disempowered groups in society. Whether a person’s conduct is constructed as legitimate protest or disorderly conduct will depend on factors such as age, gender, ethnicity, class and so on. The identification of conduct as “political protest” by police, lawyers and judges can confer some measure of protection to otherwise offensive conduct.
And Well May God Save Mr Ball and the Governor-General!
Unlike many threatened with arrest for offensive conduct, the accused in Ball v McIntyre (1966) 9 FLR 237 fended off his arrest for some time with reasoned legal debate. In his negotiations with police, Ball had the advantage of advice about his legal rights from law students attending the demonstration. After his brush with the law, Ball resumed his studies, predictably pursuing research on the United States’ foreign policy. He is now a Professor of Strategic and Defence Studies at the Australian National University in Canberra. The judge in the case, Kerr J, proceeded to eternal political infamy as the Governor-General who sacked Gough Whitlam.
Most individuals whose conduct comes to the attention of the police are not ordinarily in a position to contest the official assessment of offensiveness by police and magistrates. Aboriginal youths will hardly be in a position to argue that their conduct deemed offensive by police has a deeper political meaning and value. Indeed, individuals who attempt to assert their legal rights in their interactions with police are more likely to become the subject of further investigation since “knowledge of rights” is regarded as evidence of previous contact with police: J Chan “Policing Youth in ‘Ethnic’ Communities”, R White and C Alder (eds), The Police and Young People in Australia (Cambridge: Cambridge University Press, 1994), p 191.
Policing strategies within Aboriginal communities must be understood within the broader historical and contemporary demand of colonial order. The police have performed an array of welfare functions in Indigenous communities, culminating in their complicity in the forcible removal of children in the 1950s. High levels of resistance to policing in Indigenous communities produces saturation policing, “law and order” campaigns against “Aboriginal” juveniles and the extension of police powers: C Cunneen, “Enforcing Genocide? Aboriginal Young People and the Police”, R White and C Alder (eds), The Police and Young People in Australia (Cambridge: Cambridge University Press, 1994), Ch 6. In charting these patterns of colonial governance, Chris Cunneen concludes (at 154) that police intervention in the lives of Aboriginal young people has “shifted from one of government-authorised removal policies to increasing criminalisation”.
Offensive Conduct and Indigenous Policing
There has been increasing awareness that the use of minor public order offences, such as offensive conduct and language, significantly contribute to the high rates of arrest and prosecution of Indigenous persons. Although the arrest rate for offensive conduct and language has been declining overall, an empirical study in New South Wales has established that minor public order offences continue to have a disproportionate impact on individuals from Indigenous backgrounds: R Jochelson, “Aborigines and Public Order Legislation in New South Wales” (1997) Crime and Justice Bulletin No 34. The study revealed that Aboriginal persons continue to be grossly over-represented among arrests for offensive language and conduct offences, and that there was a positive and statistically significant correlation between areas with higher proportions of Aboriginal residents and areas with higher court appearance rates for offensive conduct and language. A qualitative analysis of police narratives describing these incidents, randomly selected, showed (at 15) that the majority involved excessive alcohol consumption and/or interpersonal conflict.
Robert Jochelson concluded (at 15) that “arrests for offensive language or behaviour only seem to exacerbate or perpetuate problems of public order rather than reduce them”. This seems especially true in country towns where Aboriginal-police relations are strained due to over-policing and the imposition of curfews without legal authority: N O’Neill and R Handley, Retreat From Injustice (Sydney: Federation Press, 1995), pp 410-412.
The structure and linguistic forms of Aboriginal English may also contribute to the high rates of arrest for offensive language: B Walsh, “Offensive Language” in D Eades (ed), Language in Evidence (Sydney: University of New South Wales Press, 1995).
Measuring offensiveness: social and cultural context of language
Mindful of the potential abuse of offensive conduct charges by the police, some courts have held that the use of obscene language is not always criminal — the behaviour alleged to be offensive must be understood in its context. In Hortin v Rowbottom (1993) 68 A Crim R 381, the police were called to a domestic dispute in which the accused continually used the word “fuck” during a heated argument with his de-facto spouse outside their home. When the accused refused to calm down and desist from using bad language, he was arrested, charged and ultimately convicted of using indecent language in a public place contrary to s 22 of the Summary Offences Act 1953 (SA). Allowing the appeal, the Supreme Court of South Australia held that the magistrate had wrongly concluded (at 384) that the word “fuck” is necessarily indecent regardless of the context or circumstances in which it is used. Mullighan J (at 385-386) reviewed the authorities dealing with indecency in other contexts and highlighted the difficulties in determining a “community standard of decency”. These cases revealed that the context and potential audience were critical considerations in determining offensiveness. In this case, the accused did not use the words in their primary sense. Rather the accused had used them as “intensives” or “expletives” in order to give emphasis to the message he was seeking to convey. In this case, the accused had directed the language to persons well-known to him in the context of a family argument and when in a highly emotional state: at 389. Although such language was coarse, and would be offensive to some sections of the community, such language was now commonly used in ordinary conversation by both men and women in many sections of the community, sometimes in its primary sense but more often in its secondary sense, without offending contemporary standards of decency. A similar approach was adopted in Western Australia when the Supreme Court quashed the conviction of Keft (also known as “Rodney Rude”) for using the word “fuck” in a public performance: Keft v Fraser (unrep, 21/4/1986, 6251).
The courts have held that police officers are persons capable of being offended by the accused’s conduct. This is a significant concession since the police may be the only individuals present during the alleged offensive behaviour. To hold otherwise, would provide individuals with a license to abuse, harass or intimidate the police. This approach to offensive conduct was taken in the English decision of DPP v Orum  Crim LR 848, though with some cautions and caveats. The accused was arrested by police who attended an argument between the accused and his girlfriend late at night in a residential street. The police advised the accused that he was causing a breach of the peace. The accused refused to be quiet, saying “You fuck off. This is a domestic and you can’t do nothing. You can’t fucking arrest me. I know my rights. If you don’t go away, I am going to hit you.” He was charged with the offence of using threatening, abusive or insulting words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress: Public Order Act 1986 (UK), s 5. The magistrate dismissed the charges on the ground that there were no other persons present — except the police — who were likely to have been harassed, alarmed or distressed. The Divisional Court upheld the Crown’s appeal, noting that the attending police were persons capable of being harassed, alarmed or distressed by the accused’s conduct. The question of whether harassment, alarm or distress was caused was simply one of fact for the tribunal of fact to determine, though the court pointed out that in most cases, the words and behaviour would be wearily familiar to police and have little emotional impact save that of boredom!
The importance of context was again emphasised in Saunders v Herold (1991) 105 FLR 1. The accused, an Aborginal man, and his friends were asked to leave the Canberra Workers Club, which they did. Outside, the accused was approached by police, and was alleged to have said “Why don’t you cunts just fuck off and leave us alone?” His conviction for offensive conduct was quashed by Higgins J (at 5):
What constitutes behaving in an offensive manner depends very much on the circumstances. Conduct and language engaged in at a football match or on a tennis or squash court may be acceptable, or, at least, unremarkable, but offensive if engaged in during a church service or a formal social event.
In this case, the words were vulgar and crude, but understood in the context of a verbal disagreement with the police at 3 am in a deserted street, the conduct could not be regarded by the reasonable bystander as offensive: at 6-8.
A similar approach to offensive language was adopted by White J in E (A Child) v The Queen (1994) 76 A Crim R 343. In this case, the accused was convicted of disorderly conduct, which includes using obscene language, by virtue of ss 54 and 59 of the Police Act 1892 (WA). The youth had been picked up on the street late at night and taken to the police station to wait there until a responsible adult came to pick him up. The youth, frustrated and distressed, challenged the authority of the police to hold him. In the course of that conversation with a female officer he said “I’m leaving. You have no right to hold me here. I want to fucking go”. His swearing led to a warning that he would be arrested for obscene language, which prompted the reply “You can get fucked” and “Fuck you”. The magistrate found the language to be obscene and he was convicted.
On appeal, White J held that the question of whether language is obscene must be determined according to community standards, not the standards of a particular witness. He then reviewed the available case law, including many of the decisions discussed above. White J stated that the question of whether language was obscene must be understood in its context. The use of the word “fuck” as an expletive, where there were no sexual overtones or implications, was not obscene language. The conviction also failed on the ground that a lock up was not a “public place” for the purpose of the Act. In this case, the obscenity of language was measured in “neutral” linguistic terms: using the word “fuck” merely as a general expletive did not violate community standards. However, this approach does not reveal the true political context of the words. In this case, the accused was an Aboriginal youth who was resisting police authority to impose a curfew and to detain him without proper legal authority (this significant issue was neither explored at trial nor raised on appeal). In the absence of formal powers to detain him, offensive language provided the police with a “holding charge” and a legal basis for exercising authority over the youth. The judgment of Wright J did not fully expose the legal or political context surrounding the use of offensive words. Nevertheless, the decision does constitute a judicial attempt to place limits on the offence and prevent its overuse against young people and minorities.
In Burns v Seagrave & Anor  NSWSC 77 (23 February 2000), the accused went to Kings Cross police station to complain about drug dealing in the neighbourhood. He was very upset and challenged the police refusal to take action. He refused to give his name when asked and told the sergeant “I don’t have to give you anything, you fat spiv. You’re nothing but a useless fat spiv. I don’t have to talk you, you giraffe.” In another exchange, the accused said to the sergeant: “I’m not speaking to you, you’re not my type.” He was charged with using offensive language and the evidence tendered claimed that the sergeant was extremely offended by the homosexual connotation. The magistrate dismissed the charge. The DPP successfully appealed against the dismissal of the charge, with the Supreme Court of New South Wales agreeing that there was sufficient evidence to allow the case to proceed.
The legal concepts of offensiveness and indecency lie at the heart of many public order offences. Decisions such as Ball v McIntyre and Saunders v Herold are important particularly as guides to magistrates charged with the duty of determining whether particular conduct is offensive — as one judge recently noted, “some of these cases are so familiar as to be old friends”.5 Although the law determines offensiveness by reference to an “objective test” based on community standards, it is not a value-neutral concept. The conceptions of good order and decency created and applied by both police officers and magistrates have the potential to operate unfairly against minorities who are perceived to be a threat to social order and/or police authority. For a review of the wide range of conduct that has been caught by these laws, see D Brown, D Farrier and D Weisbrot, Criminal Laws (2nd ed, Sydney: Federation Press, 1996), pp 957-959.
1.Crimes Act 1900 (ACT), s 546A; Summary Offences Act 1988 (NSW), ss 4, 4A; Summary Offences Act 1988 (NT), s 47; Summary Offences Act 1953 (SA), s 7; Police Offences Act 1935 (Tas), ss 12 and 13; Summary Offences Act 1966 (Vic), s 17; Police Act 1892 (WA), ss 54, 59. In Queensland, indecent or offensive behaviour provides a basis for exercising move on powers contained in the Police Powers and Responsibilities Act 1997(Qld), s 83.
2. Offensive conduct may be an element of other crimes, such as aggravated trespass on Territory, Commonwealth or diplomatic premises: Public Order (Protection of Persons and Property) Act 1971 (Cth), ss 11(2)(b), 12(2)(b), 20(2)(b).
3. Early decisions on offensive behaviour did not require proof of subjective intent: see Densley v Merton  SASR 144; Normandale v Brassey  SASR 177; Ellis v Fingleton (1972) 3 SASR 437. Later decisions, applying He Kaw Teh, required proof that the conduct which caused offense had been intentional: Daire v Stone (1991) 56 SASR 90; Stone v Ford (1993) 59 SASR 444.
4. On the meaning of “insulting”, see further DPP v Orum  3 All ER 449; R v Ball (1990) 90 Cr App R 378; DPP v Clarke and Others (1992) 94 Cr App R 359. Cases following this approach: Jeffrey Stephen Vigon v DPP  EWHC 854 (30 October 1997) Manning; R v Cally  EWCA 3657 (22 October 1997).
5. Burns v Seagrave  NSWSC 77 at para 12, Simpson J.
Authors: Simon Bronitt and Bernadette McSherry This article is an extract from Principles of Criminal Law 1e, 2000