Criminalising offensive language in public only does more harm, writes Sonia Hickey.
IN AUSTRALIA, across every state and territory, swearing is a crime, punishable by hefty fines and even gaol time. Despite regular calls for the laws to be abolished, they remain in force, affecting some of our most vulnerable people.
If you Googled a list of Australia’s "weird and wacky laws", the fact that swearing in a public place is a criminal offence would probably make the top ten. But upon closer inspection, this seemingly harmless law is actually one with very serious consequences.
What does the law actually say?
Under section 4A of the Summary Offences Act 1988 (NSW), using offensive language in a public place or a school is prohibited. "Offensive language" constitutes words that are generally considered obscene, indecent, abusive or socially unacceptable.
Police can issue Criminal Infringement Notices (CINs) for offensive language in all states and territories except South Australia, Tasmania and the ACT, where the matter must go before the court.
In the other jurisdictions, police have the option to arrest, or to issue a court attendance notice. They can also issue on-the-spot fines.
Penalties differ state by state, but the amount ranges from $110 in Queensland to $500 in New South Wales and Western Australia. If the matter goes to court, the fines increase — from a maximum of $660 in NSW to $1,250 in South Australia, to $6,000 in WA.
You can be sentenced to time in gaol in all jurisdictions except NSW and WA.
According to this law, a "public place" is defined as a place for community use, where members of the general public can gather. The law makes provision for this to include public property such as parks, roads and beaches, as well as privately owned premises that members of the general public can access, such as shopping centres, movie theatres, pubs and restaurants.
It also covers public transport and associated facilities, and public gatherings and functions, such as an event or a sports game. It’s a very broad definition, so for the sake of simplicity, let’s just say that this means anywhere that’s not your own private property or your mate’s place.
Contentious and lacking clarity
Of all the laws currently enacted across the nation, this is a particularly contentious one — for several reasons, one of which was highlighted by the conviction and subsequent successful appeal of a well-known Sydney activist, Danny Lim. He was found guilty in 2017 of offensive conduct, after using the word "c**t" in one of his famous sandwich board placards, in a message referring to Tony Abbott.
A local court magistrate found it a “straightforward case”, concluding that any reasonable person would find it offensive to use this word in reference to Tony Abbott, who was the Prime Minister at the time.
But when Mr Lim appealed the conviction in the District Court, the judge ruled differently, pointing out that the use of the word “c**t” is not always offensive, even when said in public. The judge went on to explain that the word is often used as a derogatory expletive to describe a person of any gender and that “it is now more prevalent in everyday language than it has previously been”.
As many commentators have since pointed out in light of Danny Lim’s case, what would the Australian laws determine about French Connection’s fashion brand FCUK?
And herein lies just one of the significant problems with this antiquated law. What is considered "offensive" to one person may not be offensive to another. Language needs both context and robust definition to make sense.
Targeting already marginalised groups
This particular legislation offers no clear definition of what is offensive, nor does the law provide a prescription for determining words considered as such. Although police generally target the swear words "f**k" and "c**t", the law itself is open to pretty broad interpretation.
And, as critics of the law point out, this means that it can also be used as a way to target already marginalised groups within our communities. There are countless examples of intoxicated and homeless people who have been put behind bars for swearing at police officers.
Indigenous Australians more likely to face charges
Statistics show that, in fact, Indigenous Australians are much more likely to be the subject of offensive language charges. A review by the NSW Ombudsman found that, between November 2007 and October 2008, Aboriginal Australians received 14% of offensive language fines even though they make up only 2.1% of the population.
What’s more (and perhaps also not surprising given the size of the fine), 89% of Aboriginal and Torres Strait Islander people issued with a fine failed to pay on time and were referred to the Department of Revenue.
A Queensland study found that Indigenous people are 12 times more likely than non-Indigenous people to be charged with or receive infringement notices for public nuisance or offensive language. Where these matters were dealt with in the court, Aboriginal and Torres Strait Islander people were more likely to receive a custodial sentence.
Sadly, this also supports what we already know: Aboriginal people are massively overrepresented in the criminal justice system of Australia. They represent only 2.1% of the total population, yet more than 28% of Australia's prison population is Aboriginal.
They are also the group most likely to die in gaol.
Cameron Mulrunji Doomadgee was arrested for swearing
In 2004, Palm Islander man Cameron Mulrunji Doomadgee swore at a policeman. Forty-five minutes later, he was dead in a watch-house cell from massive internal injuries including broken ribs and a ruptured spleen.
In the wake of his death, Palm Island residents burnt down the police station, courthouse and police houses and Indigenous activist Lex Wotton was convicted of inciting the riots.
Arresting officer Senior Sergeant Chris Hurley was accused of murder, but he was acquitted of manslaughter in 2007.
Cameron Mulrunji Doomadgee's death has been one of the most prolonged investigations in the criminal justice system for an Indigenous community. The legal process didn't conclude until 2010 when a Magistrate handed down an "open finding" that Senior Sergeant Chris Hurley had caused Mr Doomadgee's injuries but that it could not be determined whether they were inflicted intentionally or accidentally.
More than a decade later, a Federal Court hearing determined police were racist in their response to the death of Cameron Mulrunji Doomadgee. In 2016, Lex Wotton and his family were awarded more than $200,000 in damages for racial discrimination. This prompted momentum around a class action, which was settled by the Queensland Government last year when it agreed to pay $30 million to the residents of Palm Island. The settlement includes payments for 447 claimants as well as interest, legal and administrative costs.
So isn’t it time we abolished this ridiculous law?
Yes, it is. Most of Australia’s laws were originally derived from British common law and established in the Crimes Act 1900 (NSW). These laws are intended to protect our general safety and ensure our rights and freedoms. There’s an expectation that they should evolve in line with society, but often governments – at both a federal and state level – are too busy to review and revise those laws which no longer serve any real purpose.
While it could potentially be argued that some laws are successful in deterring certain behaviours, can we accurately say that anti-swearing laws have had reduced our use of profanity? Hell no. In fact, profanity is becoming more prolific in the general vernacular, whether we like it or not.
And still, each year thousands of people are charged with, or receive an on-the-spot fine, for use of offensive language. Statistics for 2017 show that more than 3,000 adults and children were charged. Of these, about half received a $500 on-the-spot fine.
A nice revenue earner for the State, you might say.
Despite recent efforts by a federal body, the Australian Law Reform Commission, to encourage each state and territory to re-assess and re-evaluate their own laws, for now, and for the foreseeable future, they remain in force across the nation.
Sonia Hickey is a freelance writer, magazine journalist and owner of "Woman with Words". She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
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