Introduction

We all have a potty mouth from time to time, and have all been accused of having a small vocabulary. However, there are situations where our colourful language might result in a criminal offence if we are not in private. This guide will explain the situations and types of offensive language to avoid, and what to do if you are charged. While offensive language is increasingly common in everyday conversation, it remains a criminal offence under NSW law, specifically under section 4A of the Summary Offences Act 1988 (NSW). This offence involves the use of language that could wound feelings, arouse anger, or cause disgust in a reasonable person, highlighting the importance of being mindful of one’s words in public settings.

This guide provides an overview of the key aspects of offensive language offences in NSW, including legal definitions, penalties, and available defences. By exploring these elements, readers will gain a clearer understanding of how the law addresses such offences and the implications for individuals charged with this crime.

Understanding the Offence of Offensive Language in NSW

Definition and Key Elements

Offensive language is defined under section 4A of the Summary Offences Act 1988 (NSW) as language that would wound the feelings, arouse anger or resentment, or disgust in a reasonable person. This offence is a summary offence, meaning it is considered less serious and is dealt with in the Local Court.

To be convicted of using offensive language, the prosecution must prove three key elements:

• The language used was offensive.
• The language was used in or near a public place or school.
• The language was used with the intent to offend or in a manner likely to offend.

The intent behind the language is crucial. Courts consider whether the words were used to provoke or offend, rather than merely as an expression of frustration or surprise. For example, using profanity in a threatening manner towards someone is more likely to be considered offensive than casual use among friends.

What Constitutes Offensive Language?

The determination of what constitutes offensive language is subjective and context-dependent. Courts apply the “reasonable person test,” considering whether an average, reasonable person would find the language offensive. It should be noted that a “reasonable person” is reasonably tolerant and understanding, and contemporary in his reactions, so, for example, offensive language constituting a temporary political act is unlikely to be offensive (see Ball v McIntyre (1966) 9 FLR 237). 

Many factors are still considered in when determining whether or not a word is offensive.

Key factors include:

• Profanity: Profane words often attract closer scrutiny. Hate speech or racial slurs are almost always deemed offensive.
• The context in which they are used: For instance, in a 2003 NSW case (Police v Butler), the courts found someone living near drunk people would likely not be offended by “f*ck”. Common swear words like “f*ck” or “c*nt”, while perhaps common in todays society, will still depend on the context in which they are said, and if they would have a “tendency to be offensive” (see Connolly v Willis [1984] 1 NSWLR 373). The unsatisfying answer is: context really matters. So, seek legal advice to clarify the details of your case.
• The audience and surroundings: Note that even if no members of the public are around, offensive language is still considered offensive if it’s in a public place (See Stutsel v Reid (1990) 20 NSWLR 661.)

 However, the context in which the language is used can still render it offensive. For example, using such language in a threatening or aggressive manner towards someone can still be deemed offensive, even if the words themselves are commonly used.

Public Place and School Context

The offence applies to language used in or reasonably “within hearing” of public places or schools. A public place is defined as any area open to the public, regardless of whether access requires payment. Schools include government and non-government schools, as well as child-minding centres.

Notably, the presence of actual people is not required for a conviction; it is enough that a reasonable person could have been offended if present. However, if people were present and offended, this may influence the severity of the penalty.

The “reasonable person” test is used to determine offensiveness. This person is considered tolerant and contemporary, not overly sensitive. For instance, courts have found that certain swear words, while once offensive, are now so common they no longer offend the average person. However, context matters: using such language aggressively towards someone, especially in a public place, can still be deemed offensive.

Understanding these elements and contexts is essential for grasping how offensive language is treated under NSW law.

Intent to Offend or Manner Likely to Offend

The intent behind the language is a critical factor in determining whether the language is offensive. If the language is used in a way that is intended to provoke or offend, it is more likely to be considered offensive. For example, using offensive language in a threatening manner towards someone is more likely to be considered offensive than casual use among friends.

In general, merely using the word as an expression of frustration, fear, surprise, affection, or embellishment will not amount to offensive conduct. There must be a further intent behind the words to specifically offend people in some way.

Legal Defences and Reasonable Excuse

Reasonable Excuse as a Defence

Under section 4A of the Summary Offences Act 1988 (NSW), a person can avoid conviction for offensive language if they prove they had a reasonable excuse for their conduct. This defence requires the defendant to satisfy the court, on the balance of probabilities, that their actions were justified under the circumstances.

A reasonable excuse is determined objectively, based on what a reasonable person would consider acceptable. For example, if someone used offensive language due to extreme pain or a medical emergency, this could be seen as a reasonable excuse. The court will assess whether the language was used in a way that a reasonable person would find acceptable under the given circumstances.

Other Defence Strategies and Considerations

In addition to the reasonable excuse defence, other strategies can be employed to defend against offensive language charges. These include:

• Intent: The prosecution must prove that the language was used with the intent to cause offence. If the language was used in a joking or non-threatening manner, it may not meet the legal threshold for offensive language.
• Contextual Factors: The context in which the language was used is crucial. For example, language used in a private conversation that is overheard by a third party may not be considered offensive if it was not directed at them or intended to cause harm.
• Audience and Setting: The presence of children, the time of day, and the location (e.g., a public place vs. a private residence) can influence whether the language is deemed offensive. Courts may consider whether a reasonable person in the same situation would have been offended.
• Community Standards: The court will consider contemporary community standards when determining if language is offensive. Words that were once considered offensive may no longer be seen as such due to changing social norms.
• Proportionality: The response to the language must be proportionate. For example, if the language was minor and not directed at anyone, the court may view the charge as unnecessary or excessive. This is especially necessary, as we all dabble in coarse language from time to time that is harmless.

If you are facing charges of offensive language, it is important to seek legal advice from an experienced criminal lawyer who can help you navigate the complexities of the law and prepare a strong defence.

Penalties and Court Procedures for Offensive Language

Fines and Community Correction Orders

The offence of offensive language in NSW carries a maximum penalty of a fine of $660. Courts may also impose a community correction order, which includes community service work. These orders require individuals to be of good behaviour for a specified period and may include up to 100 hours of community service.

Key points about penalties include:

• Fines: The maximum fine is $660 (six penalty units), though penalties can vary based on the severity of the offence. It should be noted that the maximum penalty is infrequently
• Community Correction Orders: These orders may be imposed instead of a fine and include conditions like community service.
• No Imprisonment: Offensive language offences under section 4A of the Summary Offences Act 1988 (NSW) do not carry imprisonment as a penalty.

Court vs Penalty Notice Options

Offensive language charges can be handled in two ways: through a court appearance or an on-the-spot penalty notice.

• Penalty Notice: Police may issue an on-the-spot fine, typically $500, which does not require a court appearance. Paying the fine resolves the matter without a criminal record.
• Court Attendance Notice: This requires a court appearance and may result in harsher penalties if convicted. Courts consider factors like prior offences and the severity of the language used.
• Election to Court: Individuals can choose to have a penalty notice dealt with in court, allowing them to plead their case and potentially avoid a conviction.

Understanding these options helps individuals make informed decisions about how to handle offensive language charges.

Evaluation of Offensive Language in Contemporary Context

Changing Standards of Offensive Behaviour

Societal standards regarding offensive language have evolved significantly over time. Words that were once considered highly offensive are now more commonly accepted in everyday conversation.

For instance, certain swear words, such as “f*ck,” are frequently used in:

• Media and movies
• Casual settings
• Everyday conversations

Courts now consider contemporary community standards when determining if language is offensive, recognising that what was once deemed offensive may no longer be so due to changing social norms.

This shift is reflected in legal decisions, where courts have found that some traditionally offensive words have lost their offensive punch and are now used more for emphasis or habit. However, context remains crucial. For example, using such language in a threatening or aggressive manner can still be considered offensive, even if the words themselves are common.

The Role of Intent in Legal Determinations

The intent behind the language is a critical factor in determining if it constitutes an offensive language offence. The prosecution must prove that the language was used with the intent to:

• Wound feelings
• Arouse anger or resentment
• Cause disgust

Courts focus on whether the language was used to provoke or offend, rather than merely as an expression of frustration or surprise.

For example, casually using profanity among friends is unlikely to be considered offensive, whereas using the same language in a threatening manner towards someone is more likely to meet the legal threshold. The context in which the language is used, such as in a public place or directed at a specific individual, also influences whether it is deemed offensive.

In summary, while societal standards have relaxed regarding certain words, the intent and context of their use remain essential in legal determinations. Understanding these factors is crucial for individuals to navigate the complexities of offensive language laws in NSW.

Conclusion

Understanding the offence of offensive language in New South Wales is crucial for anyone who may encounter this issue. This guide has covered key aspects, including the legal definition, penalties, defences, and the importance of intent. It has also explored how societal standards influence what is considered offensive and the role of criminal lawyers in navigating these cases.

If you or someone you know is facing charges related to offensive language, it is essential to seek legal advice from experienced criminal lawyers. At Daoud Legal, our experts specialise in criminal law and can provide tailored guidance and representation. Contact us today to discuss your case and ensure the best possible outcome.

Frequently Asked Questions