a contradiction that has long been at the heart of the criminal law concerned with ‘public order’. Although crimes such as offensive conduct and offensive language are amongst the most frequently prosecuted offences in Australia, their legal nature is poorly understood and rarely the subject of judicial scrutiny or academic explanation. In the context of ongoing controversy over whether such offences have a legitimate place on the statute books, we confront this oversight. This article draws on the High Court of Australia’s decision in He Kaw Teh v The Queen to lay out a methodology for construing the elements of a statutory offence, and then employs this approach to produce a recommended interpretation of the elements of sections 4 and 4A of the Summary Offences Act 1988 (NSW).
Brown et al have observed that:
The cornerstone of public order legislation is usually a provision that permits police to act where behaviour in a public place is regarded as offensive, insulting, abusive or indecent. Such provisions are inevitably vague and open-ended, with the characterisation of the behaviour left to the discretion of the police in the first instance, and subsequently to the discretion of magistrates.
In New South Wales (‘NSW’), the ‘cornerstone’ is provided by sections 4 and 4A of the Summary Offences Act 1988 (NSW). Certainly the characteristics of vagueness and open-endedness, and susceptibility to discretion, to which Brown et al refer, are evident in the definitions of offensive conduct and offensive language. The legitimacy of these laws, and equivalent laws in other jurisdictions, has long been a topic of debate, and appropriately so.
More than 40 years ago, Frank Walker MP (later Attorney-General of NSW) observed, in relation to the Summary Offences Bill 1970 (NSW):
One of the most arbitrary and dangerous aspects of the bill is the proliferation of vague, uncertain dragnet offences such as are to be found in ... the definition of unseemly words and later in the bill in provisions dealing with offensive behaviour.
Any practising criminal lawyer will say that such terminology operates only to give the widest possible latitude to the police and the magistrates, and thereby constitutes a serious blow to the liberty of the citizen to be free from arbitrary arrest and arbitrary prosecution. I submit that this vague terminology is jurisprudentially unsound. Certainty is the very essence of the criminal law. Every man has the right to know whether his actions at a given time are or are not criminal. Sweeping, dragnet terminology means that a particular act will be legal or illegal according to the subjective opinions of the police officers and magistrates involved.
A decade later, Doreen McBarnet coined the phrase ‘ideology of triviality’ to capture the air of relative unimportance that pervades the high volume lower courts of the criminal justice system. A related dimension of McBarnet’s analysis is the idea of ‘legal relevance’ – the assumption that ‘the offences dealt with in the lower courts do not involve much law or require much legal expertise or advocacy.’ As McBarnet counters: ‘[i]t is not in the nature of drunkenness, breach of the peace or petty theft to be less susceptible than fraud, burglary or murder to complex legal argument; it is rather in the nature of the procedure by which they are tried.’
We would add to McBarnet’s list of ‘lesser’ crimes a pair that are amongst the most frequently prosecuted on the NSW statute books – offensive conduct and offensive language under sections 4 and 4A of the Summary Offences Act 1988 (NSW). During 2012,5612 charges for these two offences were finalised in the Local Court of NSW, and 6808 people were issued with a Criminal Infringement Notice (‘CIN’) in relation to alleged breaches of sections 4 and 4A.
How is it that for two crimes that are enforced more than 12,000 times annually, and more than two decades after their current statutory formulation was endorsed by the NSW Parliament, it remains unclear what the elements of the crime are, and no comprehensive guidance on the elements of sections 4 and 4A has emanated from the Supreme Court of NSW? It is not our intention to lay blame at the feet of the judiciary or the ranks of criminal law practitioners. The ‘blind spot’ that motivates this article is also evident amongst academic lawyers. Public order offences are still routinely ignored in criminal law textbooks.In those works that do take offensive conduct and offensive language seriously as aspects of the criminal law to which students should be exposed, the tendency is to (rightly) problematise the operation of such laws, and to point, without offering solutions, to the uncertainty that exists.The scholarly literature that addresses the topic of offensive conduct and language crimes – much of which is excellent – tends to focus on the operation of these laws, often informed by illuminating historical, sociological and criminological perspectives, and with an explicit normative reformist agenda. Sections 4 and 4A of the Summary Offences Act 1988 (NSW) have not, to this point, been the subject of close doctrinal analysis or exegesis, particularly in relation to fault (as opposed to conduct) elements.
In this article we approach the neglected crimes of offensive conduct and language, influenced by the insights of scholars such as McBarnet, adopting a still critical, but also pragmatic, perspective, by asking the following questions: can we tolerate any longer the uncertainty that surrounds the parameters of charges under sections 4 and 4A that yield thousands of convictions every year, and that, in the case of offensive conduct, carries the possibility of incarceration? If the answer to this question is ‘no’ (and we believe it is), is it possible to articulate with greater precision the boundaries of this area of ‘criminality’? With courage and caution in equal measure, we assert that it is both possible and desirable to do so, and, in this article, we outline an approach to doing so.
In our view, every criminal offence should be capable of clear articulation in terms of conduct and fault elements – especially offences that are charged in high volumes every year and which are controversial inclusions in the statute books. We are not naive about the possibility of achieving absolute clarity and certainty in this or, indeed, any other law. Such ‘perfection’ is unrealistic given, among many other considerations, the nature of legal language and the (often contested) processes of interpretation that are involved in deriving meaning, and the effect of discretion in decision-making. That said, certain unresolved ambiguities in the definition of offensive conduct and offensive language under the Summary Offences Act 1988 (NSW) can be remedied and ought to be. We are prepared to be bold in our proffered interpretations in the hope that, even if they are wrong, this article will nonetheless prompt wider engagement with questions that have escaped rigorous academic and judicial scrutiny for too long.
The legitimacy of criminal offences such as those defined by sections 4 and 4A – that turn on the concept of offensiveness – has rightly been the subject of rigorous critique, including by eminent criminal law theorists. For what it is worth, our own normative position is unambiguous: offensiveness has no place in Australian law as a basis for criminality and any offences that turn on an offensiveness standard (including sections 4 and 4A) should be abolished immediately. But it is not our aim in this article to prosecute this position; a position that has already attracted much scholarly attention. Rather, our aim is to confront the reality that sections 4 and 4A not only remain on the statute books in NSW, but they have been entrenched there for decades, and continue to be actively enforced. As long as this is the case, an attempt must be made to elicit judicial guidance in relation to the scope and elements of sections 4 and 4A of the Summary Offences Act 1988 (NSW). While our proposals for interpreting these offences do not deliver abolition, they do have the potential to at least provide a legal foundation for defending charges and narrowing the scope of sections 4 and 4A, thereby reducing (if not removing) the demonstrable risks of over-policing and over-criminalisation which have too often been realised in NSW.
The body of this article is in three parts. Part II introduces the statutory provisions which define offensive conduct and offensive language, including a brief examination of the historical evolution of this form of public order offence. Part III deals with the operation of the laws, highlighting a number of concerns that have been raised about their reach in practice, including their disproportionate impact on Aboriginal people in NSW. Part IV sets out a methodology for construing statutory offences which we then apply to sections 4 and 4A of the Summary Offences Act 1988 (NSW) with reference to the known case law.