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Received 75/100 for this assignment. Marker had stated part 3 seemed incomplete, and that my referencing could have used some work. Marker had also stated my overall argument was nicely logical and structured....

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Introduction The current offensive language provisions of NSW Contained within the Summary Offences Act 1988 (NSW), may be found to be ineffective towards regulating public order, thus, it may need to be repealed. This call for repeal by the ALRC is largely due to their recognition that Aboriginal and Torres Strait Islander (ATSI) people are excessively over represented as alleged offenders of offensive language. In addition, fines given for offensive language as well as the vague guidelines for the use of discretion for police officers to issue these fines, have disproportionate impacts to ATSI people in comparison to other members of the community. The Elements of the NSW Offence of Offensive Language The offence of offensive language is outlined under section 4A(1) of the Summary Offences Act 1988 (NSW). The provision states that “A person must not use offensive language in or near, or within hearing from, a public place or school”, carrying a maximum penalty of 6 penalty units ($991.32). However, “offensive language” is a vague and broad term that could cover many scenarios and along with the required mental state of the accused, is not defined within the legislation. Therefore, common law must be delved into in order to establish the meaning of “offensive” and what state of mind the accused must possess. In Worcester v Smith1, O’Bryan J held that in order to come within the meaning of “offensive”, the behaviour must “wound the feelings or arouse anger, resentment, disgust or outrage in the mind of a reasonable person”2. Once again, the term “reasonable person” is fairly vague, although, within the case of Ball v McIntyre3, Kerr J states “I believe that a so-called reasonable man is reasonably tolerant and understanding, and reasonably contemporary in his reactions.” Therefore, offensiveness is determined through the objective eyes of this

1 [1951] VLR 316 2 Ibid 318. 3 9 FLR 237

reasonably tolerant and understanding man, such that “people may be offended by such conduct, but it may well not be offensive conduct within the meaning of the section”4. In order to determine the required mental state of the accused, the case of Daire v Stone5 must be observed, in which, Legoe J held: “There is a conscious and deliberate course of conduct by the accused person which constitutes the interference with the comfort of other people such as to leave the tribunal of fact with no reasonable doubt that the conduct of the accused person was intentionally done to bring about such an interference”6

Therefore, it seems that a certain degree of intention is required, however within the case of Police v Pfeifer7 it was held that an element of intent or knowledge is not required to be proved. The judgement of Pfeifer took into consideration the principles of He Kaw The v The Queen8 however it was ruled that the established presumption was rebutted according to the subject matter of the provision.9 The court held that “if it is established that the relevant conduct is offensive in the required sense, a person charged will be convicted if the prosecutor proves that the person did not honestly and reasonably believe that the conduct was not offensive”10. Thus, the defendant must use an honest and reasonable excuse such as the case of Karpik v Zisis11 in which the defendant successfully argued that his profanity in a public place was a part of ‘a reflex action’. How This Offence is Applied in Practice Since 1 November 2007, police officers may issue a Criminal Infringement Notice (CIN) which may also be describes as ‘on-the-spot’ fines, for certain offences, one of which

4 Ball v McIntyre (1966) 9 FLR 237 (ACT) 5 [1991] 56 SASR 90 6 Daire v Stone (1991) 56 SASR 90 7 [1997] 68 SASR 285 8 [1985] 157 CLR 523 9 Ibid 292. 10 Ibid 293. 11 [1979] 5 Petty Sessions Review 2056

offences being Offensive Language which may be a fine of $150. The power for police to issue CINs if behaviour is regarded as offensive is inevitably vague and open ended. Despite the provision of Offensive Language being vague as to the elements required, as discussed previously, the courts may look to the common law to assist in their decision making, subsequently creating meaning that is not so vague. However, police officers are not nearly as knowledgeable in the common law as the judiciary, thus, many police officers issue CINs for Offensive Language for conduct that would not suffice the required elements in a court room. As a result, the characterisation of behaviour is left to the discretion of the police, which may result in an inconsistent abuse of police power to issue these fines which may be regarded as unnecessary.12 In 2009, the NSW Ombudsman reported that issuing CINs had become the most common form for police to deal with minor public order incidents, previously it had been through charging, warning, or arresting. Therefore, police officers have been given the power to issue fines that are generally uncontested among the disadvantaged and do not see the courts. This subsequently shifts part of the crucial role of the judiciary as being decision makers of the law onto police officers that have minimal knowledge of the law in comparison to judges and are given minimal guidelines for how to apply their discretion.13 Elyse Methven states that ‘Such broad, unexaminable police discretion is particularly problematic when Aboriginal Australians, those who are homeless or poor, and those with a mental illness or a cognitive impairment, have historically been, and continue to be, systematically disadvantaged in the face of broad police powers’.14 How The Offensive Language Provisions Inadvertently Targets Disadvantaged People ATSI people are more likely to receive penalty notices in comparison to other members of the community. In 2009, the NSW Ombudsman found that despite Aboriginal people 12 Brown D e al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (3rd ed, Federation Press, 2001) 518. 13 Methven, Elyse “’A Very Expensive Lesson’: Counting the Costs of Penalty Notices for Anti-social Behaviour” (2014) 26(2) Current Issues in Criminal Justice 249 14 Ibid.

compromising just 2.5% of the NSW population, they accounted for 7.4 per cent of all CINs issued, 83 per cent of which were for offensive conduct or offensive language15. In 1997, the NSW Bureau of Crime Statistics and Research states: The statistics in this bulletin demonstrate that Aboriginal people are grossly over-represented among arrests for offensive language and behaviour. The trite response to this observation is to argue that it arises only because Aboriginal people are grossly over-represented among those who commit acts of offensive language and behaviour. 16

Whether it’s true that Aboriginal people commit more acts of offensive language and behaviour in comparison to the rest of community, it must be true that they are generally targeted to a greater degree by police officers. Economically disadvantaged communities such as the ATSI community have a higher possibility of interacting with police officers as they are more likely to spend a significant portion of their time in public spaces.17 There may be numerous reasons for this, there may not be suitable housing or other alternatives, or for safety concerns such as if family members are drinking, using drugs, or being physically abusive.18 An example of a disadvantaged victim being unlawfully targeted and arrested by police in public for supposed offensive language is found within Ombudsman which details: A $150 CIN issued to homeless man accused of using offensive language… Police stopped and spoke with the accused in relation to tourniquet on blanket and bail compliance. Accused became aggressive saying, ‘Fuck off and leave me alone’. He was warned his language was offensive. He said, ‘For Christ’s sake fucking leave me alone.’… He said ‘Just fuck off.’ Accused arrested for offensive language… Court records indicate the matter was ‘dismissed’.19

15 Ibid. 16 Robert Jochelson ‘Aborigines and Public Order Legislation in New South Wales’ (1997) 34 NSW Bureau of Crime Statistics and Research. 17 Australian Law Reform Commission, Pathways To Justice – Inquiry into the Incarceration Rate of Aboriginal and Torres Straight Islander Peoples (Report N 133, December 2017) 12.181 18 Kempsey Aboriginal Community Justice Group Roundtable Meeting, Consultation PN15, South Kempsey NSW, 16 February 2011. 19 New South Wales Ombudsman (2009) ‘Review of the Impact of Criminal Infringement notices on Aboriginal Communities’.

The conduct of the accused clearly did not suffice the common law definition of ‘offensive’, thus resulting in the case being dismissed. The Effects of Issuing Penalty Notices to Vulnerable People Not only are ATSI people more likely to receive penalty notices, It’s also proven that penalty notices have a disproportionate impact on economically disadvantaged people compared with other community members.20 It is obvious that a fine of $150 will be more of a financial burden to an economically disadvantaged individual than to that of a person in a higher economic bracket, though the impact of penalty notices goes much further than a simple financial burden. 89% of ATSI people issued with a CIN failed to pay on time21, thus resulting in greater fines and potentially loss of license. This increase in fine for lack of punctual payment may create what is called a ‘slippery slope’, as disadvantaged communities may have difficulty paying the initial payment on time, they will have greater difficulty paying the greater fine. As this ‘slippery slope’ continues, disadvantaged communities will look towards illegal means for acquiring money and develop resentment towards police officers as they are the functioning face of the legal system that they feel is immensely weighted against them. This increased resentment towards the legal system subsequently influences hostility between ATSI communities and the police, subsequently increasing chance for offensive behaviour towards police officers as well as police abusing their power to issue CINs. The NSW Bureau of Crime Statistics and Research articulates this idea relating to last resort license suspensions for lack of punctual CIN payment: Some people may continue to drive after their licence has been suspended and acquire subsequent convictions for driving without a license and driving while disqualified. Ultimately, they may be imprisoned for these flow-on offences. This has been called the ‘slippery slope’. Thus, although

20 New South Wales Law Reform Commission, Penalty Notices (Report No 132, February 2012) xxi. 21 N 19 iv-v

imprisonment for penalty notice debt is not permitted in NSW in theory, it can occur indirectly by way of this ‘slippery slope’22

It is also argued that ‘Aboriginal and Torres Strait Islander people are unlikely to request a review or elect to have a CIN dealt with by the court, even where it is likely that the offensive language will not satisfy the legal test.23 This may be due to intimidation of the legal system as well as lack of knowledge or education due to their socio-economic disadvantage. Should This Offence be Repealed or Narrowed? The offence should definitely be repealed. The ALRC’s suggestion to ‘narrow the application of those provisions to language that is abusive or threatening’ does not fix some existing issues. The primary issue of the current provision is the abuse of police power to unlawfully target disadvantaged people and issue CINs for offensive language which would not stand in court as being ‘offensive’. This is due to lack of guidelines within legislation for how to apply their discretion and their ignorance or lack of knowledge to the common law rules that are supposed to be utilized due to the statutory provision not outlining meanings or definitions. Police officers acting as decision makers, utilising power that is meant to be for the judiciary, creates an imbalance of power. This is because in regards to CIN related offenses, they have complete decision making control up to their own discretion and they receive no accountability for wrongdoing. The correct pathway would be to remove police powers to issue CINs for offensive language and behaviours as officials should take into consideration the demographic that this provision is targeting and the negative impacts it has on such communities.

Bibliography 22 N 20 23 Australian Law Reform Commission, Pathways To Justice – Inquiry into the Incarceration Rate of Aboriginal and Torres Straight Islander Peoples (Report N 133, December 2017) 12.181

Cases Worcester v Smith [1951] VLR 316 Ball v McIntyre 9 FLR 237 Daire v Stone (1991) 56 SASR 90

Journals/reports Australian Law Reform Commission, Pathways To Justice – Inquiry into the Incarceration Rate of Aboriginal and Torres Straight Islander Peoples (Report N 133, December 2017) New South Wales Law Reform Commission, Penalty Notices (Report No 132, February 2012) Robert Jochelson ‘Aborigines and Public Order Legislation in New South Wales’ (1997) 34 NSW Bureau of Crime Statistics and Research New South Wales Ombudsman (2009) ‘Review of the Impact of Criminal Infringement notices on Aboriginal Communities’ Kempsey Aboriginal Community Justice Group Roundtable Meeting, Consultation PN15, South Kempsey NSW, 16 February 2011...