Time to Repeal the Crime of Offensive Language

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Offensive Language

Members of the group these days known as Community Action for Rainbow Rights (CARR) staged a rally at Sydney’s Belmore Park in September 2015.

The purpose of the action was to counter an anti-same sex marriage protest being held by the Reverend Fred Nile.

During the course of the CARR rally, a number of demonstrators used the word “fuck”, either whilst chanting or as part of a speech. And following the protest, three CARR activists were charged with using offensive language, after initial penalty notices were found not to be valid at rallies.

Section 4A of the Summary Offences Act 1988 (NSW) makes it a crime for a person to use offensive language “in or near, or within hearing from, a public place or a school”. The maximum penalty is a $660 fine. And there’s also the option of imposing community service work instead.

However, Magistrate Geoffrey Bradd dismissed the charges, as he found the swear word had been used “to dismiss an argument against marriage equality” rather than to cause any offense, as the language wasn’t used to wound “feelings, arouse anger or resentment or disgust and outrage”.

Appearing on behalf of CARR co-convenor Cat Rose, Sydney solicitor Christian Hearn told the Herald at the time, that offensive language laws have “long been used as a social control applied disproportionately against marginalised and vulnerable people”.

In a prejudicial manner

The Australian Law Reform Commission’s 2018 Pathways to Justice report recommended that states and territories review the effect their offensive language laws have upon First Nations peoples, with a view to repealing the laws or narrowing their application to language that’s abusive or threatening.

Despite Aboriginal and Torres Strait Islander people accounting for less than 4 percent of the NSW population, the state Ombudsman found they had received 11 percent of issued offensive language infringement notices in 2008, with this figure having further risen to 17 percent by 2017.

In the case of criminal infringement notices imposed upon First Nations peoples, the NSW Law Reform Commission outlined that most were being issued in relation to language directed at police, and if these were tested in court, many may not meet the legal definition of offensive.

While in 1991, the Royal Commission into Aboriginal Deaths in Custody found that in jurisdictions where the crime of offensive language carries a penalty of imprisonment – all states and territories except NSW and WA – First Nations people were actually being sent to gaol for swearing.

Social control in action

NSW police has been cracking down on public protests as the state has been coming out of its pandemic lockdown. And the force has had a particular focus on targeting students, who’ve been agitating at Sydney University.

Part of this clampdown has involved officers issuing students with steep pandemic fines for allegedly breaking public health orders.

However, last week, while they were at it, police officers also issued a number of Sydney uni students with fines for offensive language.

As student activist Kelton Muir remarked the police were basically doing “anything they could do to harass students and make us feel intimidated and uncomfortable”.

A multipurpose tool

These examples reveal that in practice, offensive language laws are being used as an extra tool that officers can apply against individuals they’re seeking to reprimand but don’t have a reasonable excuse to do so or when they simply want to increase the sanctions involved.

While these laws are said to be about protecting members of the public from the abusive behaviour of other civilians, these days, they’re actually being used to save heavily armed police officers from the occasional “fuck off” that’s thrown in their direction.

And given the language people are being penalised for using in public has been broadcast on primetime television for literally decades now, it’s high time these antiquated laws that have become a means to intimidate and punish the vulnerable are thrown into the rubbish bin of time.

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Paul Gregoire

Paul Gregoire is a Sydney-based journalist and writer. He's the winner of the 2021 NSW Council for Civil Liberties Award For Excellence In Civil Liberties Journalism. Prior to Sydney Criminal Lawyers®, Paul wrote for VICE and was the news editor at Sydney’s City Hub.

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