It’s one of the least serious offences in the Local Court, but a conviction still means a criminal record. Here’s what counts as offensive, and what the court looks at.
Offensive language is a summary offence dealt with in the Local Court.
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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. It is a summary offence, meaning it is considered less serious and is dealt with in the Local Court.
Courts apply the “reasonable person test”. A “reasonable person” is reasonably tolerant and understanding, and contemporary in their reactions (Ball v McIntyre (1966) 9 FLR 237).
Common swear words, while common in today’s society, will still depend on the context in which they are said, and whether they have a “tendency to be offensive” (Connolly v Willis [1984] 1 NSWLR 373). Hate speech or racial slurs are almost always deemed offensive.
In general, merely using a word as an expression of frustration, fear, surprise, affection, or embellishment will not amount to offensive conduct. Using the same language in a threatening or aggressive manner towards someone is more likely to be considered offensive.
Where it applies. The offence applies to language used in or within hearing of public places or schools. Even if no members of the public are around, language can still be offensive if it’s in a public place (Stutsel v Reid (1990) 20 NSWLR 661). If people were present and offended, this may influence the severity of the penalty.
The offence of offensive language in NSW carries a maximum penalty of a fine of $660 (six penalty units). Offensive language offences under section 4A of the Summary Offences Act 1988 (NSW) do not carry imprisonment as a penalty.
Courts may also impose a community correction order, which can include up to 100 hours of community service.
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.
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.
You can choose to have a penalty notice dealt with in court, allowing you to put your case and potentially avoid a conviction.
A conviction results in a criminal record, which can impact employment, travel, and other opportunities.
Under section 4A, a person can avoid conviction if they prove they had a reasonable excuse for their conduct, on the balance of probabilities. A reasonable excuse is determined objectively. If someone used offensive language due to extreme pain or a medical emergency, this could be seen as a reasonable excuse.
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