Racial discrimination is only a civil offence, but using "offensive" or "blasphemous" language in Australia can be a crime that may land you in gaol (Image via noplaceforsheep.com)

Now that the move to amend 18C has failed, how many opinion articles will be published and state parliamentary bills started to end the criminalisation of “offensive” and “insulting” language in state legislation, asks Luke Williams.

Last November, Gino Alexiou* was in a Sydney hospital casualty room as the result of psychotic ideas, including the delusion he was somehow about to persecuted for something. When he saw two police officers, who were at the hospital because of another patient, he thought they were part of the plot.

Gino eventually yelled out: 

"What are youse lookin at c...ts!"  

The police officers responded with a $500 on-the-spot-fine.

Gino, on Newstart, with a long-history mental health problems, is now being represented by the Shopfront Youth Legal Centre.

Shopfront’s principal solicitor Jane Sanders told Independent Australia these situations are common:

“We deal with at least one offensive language case a week. It’s always when they say 'f..k' or 'c..t' at or around a police officer. It is a huge burden on those charged and also the taxpayer funded justice system; it's putting a strain on the courts."

Sanders gave another example:

“In another case, we had a client named Helen* who was sleeping on the footpath and the police officer asked if she was okay and she said ‘f..k off I’m fine’, then 'I don’t give a s__'. A struggle broke-out and they charged her for using offensive language.”

One night last spring; a young Aboriginal named Damian Marshall* was hanging outside Sydney’s Central Station with his friends just before sunset. Marshall noticed a few police officers nearby. He started rapping NWA’s 'F..k Tha Police'. An officer approached. That officer tried to arrest him for using offensive language. A struggle broke out; the police sprayed him with capsicum spray. At court, the magistrate said the force was not excessive and upheld the charge of offensive language.

Gino, Helen and Damien’s arrests point to a relatively little known fact publicly using “offensive language” is a criminal offence in every Australian state and territory.

These laws dating back to early last century: to be convicted you just need to use words that offend and/or insult — the person does not feel scared, harassed or threatened.  

So, notwithstanding your probably light skin — be very careful what you say in public.

For instance, under Northern Territory law the use of any 'riotous, offensive, disorderly or indecent behaviour, or of fighting, or using obscene language' in public can result in a $2,000 fine, imprisonment 'or both'. This fine had led to a nice little income source for the Territory Government — about $50,000 worth are issued each year. South Australians, please be aware that 'threatening, abusive or insulting' offensive behaviour or language as can get you a free three month all-expenses paid vacation in a luxury state prison. Tasmanians: thou shalt not curse or use 'blasphemous language', or you will also be in the running for a three month gaol term. Under Western Australian State law, it is also a criminal offence to publicly use 'insulting, threatening or offensive language.” In 2014, a man at a Perth protest wearing a t-shirt that said ‘F..k Off Tony Abbott’ was asked to remove it or be arrested.

Some advice for those who live in “The Garden State” — or, as some like to call it, “The Place to be Fined” — Victoria". Not only is 'offensive' and ‘insulting' language subject to prison sentence in my home state but, please, please, please don’t go singing any specially-written X-rated versions of Celine Dion in public unless you think it might get a lucrative recording contract. 'Singing an obscene song or ballad’ is also a criminal offence in Victoria and police can issue a $236 on-the-spot fine for your performance.

Trivia time: can you guess which state has the equal-highest maximum prison sentence for “offensive language”? Where else, but... Queensland! You guessed it, you face six months in prison for 'offensive, obscene, indecent or abusive language' in a public place.  

I discovered the ubiquity of “offensive language” laws and charges when I visited a court-house in the quaint heritage city of Maryborough, in the Wide Bay region of Southern Queensland. I was there to find clues about why Indigenous imprisonment rates have been increasing in the state. The first thing a community lawyer (who didn’t want to be named) told me at the courthouse was his clients were getting nabbed for “offensive behavior” — often, he added, “just for standing in the way, in the middle of the street”, or “swearing loudly, not even at anyone, just swearing”. Over time, with repeated offences and in conjunction with other summary offences, he said, those same people were eventually getting gaol time.

Examples abound in the Sunshine State. Take Melissa Couchy, a homeless Indigenous person, who was walking around Brisbane’s CBD, drunk-as-skunk at about 3am in mid-September 2000. Two police officers spotted her and asked if she wanted to go “the compound”. “The compound is for fucking dogs,” Couchy replied. The female police officer asked Couchy for her name and address. Couchy called her a “fucking cunt”. Couchy was charged with using offensive language and eventually sentenced by a magistrate to three weeks in prison.

Crouchy appealed to both the Queensland Court of Appeal and to the High Court — neither would grant her a second hearing.

On rejecting her application, Supreme Court Chief Justice Paul de Jersey said

“... the community would generally still regard the use of the words 'you fucking cunt' to a female police officer... albeit by a drunken person in the early morning, as insulting."

Couchy spent three weeks in prison. De Jersey is now Governor of Queensland.

Now to a balmy Bundaberg December night in 2014 and an Aboriginal woman named Vilma Green, who started yelling at a person the police were speaking to in the town’s palm-lined main street.  The police told Vilma she was committing a public nuisance.

Replied Vilma:

"I don’t care, you are all racist cunts!”  

She was charged and then convicted; she appealed to the District Court.

The appellant judge, the late Tony Skoien, ruled her use of the word “cunt” wasn’t offensive, but that calling the officer racist was. 

In dismissing her appeal, Skoien said:

“I have no doubt that police officers are often the butt of an accusation of carrying out their duties in a racist way and that many police officers are particularly sensitive to these allegations."

Police were certainly sensitive to racism allegations at that time. Two years earlier, Cameron Doomadgee was arrested for allegedly swearing at a police officer, he was later found dead in a police cell. The infamous Palm Island riots and Chloe Hooper’s Tall Man exposé followed.

The laws which criminalise “offensive” language and behaviour in every state and territory are basically uniform: you do not need to threaten someone with violence; nor does the “victim” need to feel intimidated, scared or vilified in order for you to be charged. You do not need to “harass” someone to be convicted.  You just need to swear in a public place; it doesn’t necessarily even need to be directed at anyone. Although, to get convicted, the prosecution must show you intended to be “offensive” or “insulting”.  

Higher courts (such as the High Court) in Australia have ruled for at least the last 30 years that “f  k” and “c..t” are part of regular language and therefore do not, on their own, meet the legal threshold for criminal offences. However, Jane Sanders told me that local NSW Magistrates and, more particularly, police officers generally do not follow these rulings.   

In 2014, the NSW Liberal Government increased the penalty for on-the-spot – fines issued by police – “offensive” language fines from $150 to $500.

Just a few weeks ago, an Albury man was given a $500 fine for yelling out “Bulls..t!” at a police officer addressing local media during press conference. In another documented NSW case, a man was found guilty of an offence under the Summary Offences Act for yelling: "Annissa Widders, I love you. Annissa Widdes, I f..kin’ love you!"

You will be aware that, in August 2016, a large group of Coalition Senate backbenchers signed a petition calling for the terms “insult” and “offend” to be cut from section 18C of the Federal Racial Discrimination Act (RDA).  Earlier, Federal Minister for Human Services Alan Tudge; Martin Iles, the former chief of staff at the Australian Christian Lobby and head of an organisation called the Human Rights Law Alliance; and journalist Peter Greste all characterised 18C as unjustly making offensive language “a crime”.

S18C is similarly worded to the criminal statutes, but it adds a second leg: the offensive or insulting act

'... is done because of the race, colour or national or ethnic origin.'

S18C is a Federal, not a state law and is part of a civil act and creates a right to sue. It does not create a criminal offence, therefore a person cannot go to prison or have their criminal record impacted for breaching it.

The Government bill to remove these terms of the Federal Racial Discrimination Act was defeated in the Senate in late March. But the issue united many of the left and right — most of them said 18C is an attack on free speech.

The number of complaints received by the Human Rights Commission nationally for alleged breaches of RDA Section 18C was 116 in 2014/15 and 77 in 2015/16. Official figures show most of the complainants who utilise the provision are Aboriginal and the most common respondents were employers.

There are no specific figures available from the states on how many people are criminally charged with using “offensive” or “insulting” language — except in NSW,  

By 2015, 4,068 incidents of offensive language were recorded under state criminal law provisions in New South Wales alone. Indigenous people, who comprise three per cent of the NSW population, made up one-third – 567 out of the 1,600 – of those charged and taken to court (rather than those simply fined on the spot, these combined with the court cases account for the 4,068 figure above) for offensive language that year.

So now that the move to change 18C has failed, I wonder how many opinion articles will be published and state parliamentary bills will be started to end the criminalisation of “offensive” and “insulting” language in state legislation?

It seems Australia’s. Race Discrimination Commissioner Tim Soutphommasane foreshadowed the answer in his 2014 book I'm Not Racist But ... 40 Years of the Racial Discrimination Act:

'… where is the public outrage about all the offensive language provisions that exist in the criminal summary offences legislation that exist in NSW, Queensland, Victoria, South Australia, Tasmania and the Northern Territory? If there is to be such zealous interest in freedom of expression in Australia, surely attention would be properly devoted to summary offence laws that impose fines and possible sentences of community work or imprisonment on the use of merely offensive language.'

Good question, Tim. Where is the public outrage?

Meanwhile, Shopfront Legal Centre tells me they are still waiting for a response to their letter to the NSW Debt Recovery Office asking that Gino’s swearing fine be withdrawn.

* Names have been changed for privacy purposes

Luke Williams is a two-time Walkley nominated journalist, a law student and author of the Ice Age: A Journey into Crystal Meth Addiction

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