What behaviour does Australian law consider ‘offensive’?

by The FindLaw Team

Any person who has spent any time in the local courts, may have noticed the large amount of matters involving offensive behaviour. Now, if we took some time to think about what constitutes behaviour which may be considered as ‘offensive’, it may prove rather challenging due to the fact that many people may have different definitions of behaviour they may consider offensive. However, legislation does exist relating to offensive behaviour, and in Coleman v Power (2004) 220 CLR 1, Gummow and Hayne JJ said (at 73):

“[T]he section is intended to serve the public, not private purposes. Why else then would the conduct be made criminal? Why else would it merit, in some cases, the severe punishment of imprisonment? Why else would it be confirmed to what is done in, or in sight or hearing of, public places?”

All good questions, and worth exploring.

The legal definition of offensive behaviour

Taking our cues from the common law, offensive behaviour is conduct that is calculated to wound the feelings and arouse anger, disgust or outrage in the mind of a reasonable person. Sounds simple enough, right? Um, actually not really, because behaviour that is calculated to wound the feelings, arouse anger, disgust or outrage, can conceivably cover a broad range of conduct.

Therefore, delving deeper into the question of what behaviour is considered offensive, we can look to Nelson v Mathieson (2003) 143 A Crim R 148 (at 152-153 [17]) in which Nathan J said:

“It is no longer necessary for the Crown to prove that the offender intended to be offensive, but it is still a requirement that the conduct has the effect of wounding the feelings, arousing anger, resentment, disgust or outrage in the mind of the reasonable person who may have or could have viewed, or been the object of that conduct. In my view, the words should be interpreted ejusdem generis (Ed’s note: of the same kind of words). Wounded feelings, anger, resentment, disgust, outrage, all denote immediate and strong emotions or reactions. A reaction to conflict which is merely indifferent or at its highest anguished, is not the same as being offended. Merely, being put out, or affronted by conduct, does not warrant the imposition of a criminal penalty upon the actor.”

It’s important to note that just because conduct offends against the standards of good taste and manners, and may be offensive to some people, still would not be considered as offensive conduct as outlined in legislation. Kerr J grappled with this distinction in Ball v McIntyre (1966) 9 FLR 237 (ACT) in which his Honour said (at 241):

“What has to be considered in the particular case is whether the conduct in question, even if in some sense hurtful or blameworthy, or improper, is also offensive within the meaning of the section. It is important, I think, for this point to be made because it is sometimes thought that it is sufficient to constitute offensive behaviour if it can be said that conduct is hurtful, blameworthy or improper, and thus may offend.

Conduct showing a refusal to accept commonly held attitudes of respect to institutions or objects held in high esteem by most may not produce offensive behaviour, although in some cases of course, it may well be ill-advised, hurtful, not proper conduct.

People may be offended by such conduct, but it may well not be offensive conduct within the meaning of the section. Some types of political conduct may offend against accepted views or opinions. But such political conduct, even though not thought to be proper conduct by accepted standards, may not be offensive conduct within the section. Conduct showing a refusal to accept commonly held attitudes of respect to institutions or objects held in high esteem by most may not produce offensive behaviour, although in some cases, of course, it may.

This charge is not available to ensure punishment of those who differ from the majority. What has to be done in each case is to see whether the conduct is in truth offensive.”

Intention to behave offensively

Similar to other criminal offences, the element of intent must be established in order for a person to be found guilty of behaving in an offensive manner. The test applied is an objective one, and the conduct must be a deliberate and conscious attempt to interfere with the comfort of others, as was noted by Legoe J in Daire v Stone (1991) 56 SASR 90, which was a matter involving the defendant eyeing off females in a store. The magistrate dismissed the charge and upon appeal, Legoe J held that the case was properly dismissed because disorderly behaviour; “refers to any substantial breach of decorum which tends to disturb the peace or to interfere with the comfort of other people who may be in the vicinity of, the street or public place”.

Additionally, Legoe J further added that the onus is on the prosecution to prove beyond reasonable doubt that, “there is a conscious and deliberate course of conduct by the accused person which constitutes the 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 an interference.”

Hopefully, no one was ‘offended’ by our attempts at explaining offensive behaviour laws.



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