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LAW 109

Assessment Task 5: Law Reform Submission

Submission reviewing offensive language The purpose of this document is to make a submission in regards to repealing offensive language as pursuant to s 4A of the Summary Offences Act 1988 (NSW). This submission concentrates on current legislation lacking a definition ‘offensive language’, and lack of distinct criminal elements of public order offences within the Act; and how this results in the disproportionate effect enforcement of offensive language laws on Indigenous Australians. This submission also seeks to make recommendations to prevent, or in the very least, reduce the effects current enforcement of offensive language laws has on Indigenous Australians.

a) Historical Background Offensive language laws in New South Wales stem from the penal ordinances nineteenth century convicts were subjected to by the military,1 and introduction of the New South Wales Act turned it into a criminal offence punishable with corporal punishment if convicts used abusive or insulting language in front of their employer or overseers.2 Freedom from being harmed by offensive language had been extended to the wider population. Settlers had now been granted the same protection from abusive language as the military, in order to discipline convicts.3 By 1835 New South Wales, consisted primarily of free citizens, and the government extended offensive language laws to non-convicts as the lower ranks of society used language that was equally “disgusting and unclean”4.5 This need to maintain public order was reflected by

1

Joanne Lennan, ‘The Development of Offensive Language Laws in Nineteenth-Century New South Wales’ (2007) 18(3) Current Issues in Criminal Justice 449. 2 New South Wales Act 1823 (UK) 4 Geo 4, c 96. 3 Lennan, above n 1. 4 Michael Sturma, Vice in a Vicious Society: Crime and Convicts in Mid-Nineteenth Century New South Wales (University of Queensland Press,1983) 28.

LAW 109

Assessment Task 5: Law Reform Submission

section 6 of the Vagrancy Act 1851 (NSW), which prohibited the use of ‘any threatening , abusive , or insulting words or behaviour in any public street, thoroughfare, or place, with the intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned’6.7 The element of peace breaches was removed and the word ‘offensive’ was added by the Police Offences (Amendment) Act 1908 (NSW) which amended the Vagrancy Act 1902 (NSW) to encompass a wider range of language that could be considered offensive.8 Other notable developments include the Summary Offences Act 1970 (NSW) s 9, which refers to ‘unseemly words’ which is language that is “obscene, indecent, profane, threatening, abusive or insulting”9; and the removal of offensive language as an offence in the Offences in Public Places Act 1979 (NSW), which replaced the Summary Offences Act 1970. Instead it punished offensive behaviour “likely to cause reasonable persons justifiably in all the circumstances to be seriously alarmed or seriously affronted”10. And 1988 saw the introduction of the new Summary Offences Act 1988 (NSW) which reintroduced the offence of offensive language in section 4A, due to growing concerns in regards to public order and ability to police to enforce public order.11

b) The Current Law

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Lennan above n 1, 451. Vagrancy Act 1851 (NSW) s 6. 7 Lennan, above n 1, 451 - 452. 8 Lennan, above n 1, 454. 9 Summary Offences Act 1970 (NSW) s 4. 10 Offences in Public Places Act 1979 (NSW) s 5. 11 New South Wales, Parliamentary Debates, Legislative Assembly, 31 Mav 1988, 804 (John Dowd). 6

LAW 109

Assessment Task 5: Law Reform Submission

Offensive language is currently dealt with under section 4A of the Summary Offences Act 1988 (NSW), which states that: ‘A person must not use offensive language in or near, or within hearing from, a public place or a school’.12 Violation of section 4A can result in a maximum fine of $66013 or a maximum of 100 hours of community service. The Act is rather ambiguous as it does not define what language is actually considered ‘offensive’. For a definition of ‘offensive language’ one must currently turn to common law cases, where it was held in Worcester v Smith to include language “calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person”.14 A reasonable person being someone that is reasonably tolerant, possesses understanding and acts according to contemporary community standards (Ball v McIntyre15, Spence v Loquch 16, and Connors v Craigie17). Saunders v Herold18, highlighted the importance of context in which some language may be deemed offensive; as what would be acceptable during a sports match may be offensive if the same language occurred during a formal social event. There is also lack of any clearly definable conduct and fault elements, as is the case with more serious offences such as Assault, which require Actus Reus and Mens Rea elements to be

12

Summary Offences Act 1988 (NSW) pt 2 div 1 s 4A. Ibid s 4A(1) (maximum 6 penalty units); Crimes (Sentencing and Procedure) Act 1999 (NSW) pt 2 div 4 s 17 states that the amount of money payable, amounts to $110 per penalty unit. 14 Worcester v Smith [1951] VLR 316. 15 Ball v McIntyre [1966] 9 FLR 237. 16 Spence v Loquch (unreported, Sully J, 12 November 1991). 17 Connors v Craigie [1994] 74 A Crim R 502. 18 Saunders v Herold (1991) 105 FLR 1. 13

LAW 109

Assessment Task 5: Law Reform Submission

fulfilled.19 This has been critiqued by several scholars, who believe summary offences ought to be treated with the same ‘rigorous technical analysis’ as ‘serious indictable offences’.20 This results in difficulty with enforcing public order as it is up to police discretion to deal with as they deem fit under the Summary Offences Act. And that in itself has caused issues of disproportionate law enforcement against Indigenous Australians, with police has arresting individuals on the grounds of offensive language.21

c) The Aims of Criminal Justice Criminal Justice aims to punish what is considered as unacceptable conduct, due to being undesirable behaviour from a moral and socially acceptable perspective.22 There is a liberal principle of harm prevention in criminal law, which states that the State should not deprive an individual of their ‘liberty and autonomy… to promote public morals or interests of the State’23. The difficulty with criminal justice here, is where to draw the line between the right to freedom of expression and opinion without interference,24 and protection of individuals and public morals. Giving one person the freedom to express themselves may impact on another individual’s right to ‘enjoy public facilities without harassment or interference’.25 And any language deemed to be beyond ‘mild offensive’, would also impact on public morals and socially 19

Julia Quilter and Luke McNamara, ‘Time to Define “The Cornerstone of Public Order Legislation”: The Elements of Offensive Conduct and Language under the Summary Offences Act 1988 (NSW)’ (2013) 36(2) University of New South Wales Law Journal 534. 20 Ibid, 547. 21 Australian Law Reform Commission, Pathways to Justice - An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, Final Report, No 133 (2017) 21. 22 Mark Findlay, Stephen Odgers and Stanley Yeo, Australian Criminal Justice (Oxford University Press, 4th ed, 2010) 1. 23 Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (Thomson Reuters, 4th ed, 2017) 58. 24 International Covenant on Civil and Political Rights, signed 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 19. 25 Elyse Methven, ‘Dirty Words? Challenging the Assumptions that Underpin Offensive Language Crimes’ (2012) 10 University of Technology Sydney Law Research Series 97.

LAW 109

Assessment Task 5: Law Reform Submission

acceptable language, as some terms are relatively unoffensive whilst others raise much objection depending on the context.26 Another issue with criminal justice is over-policing in order to address certain issues such as offensive language, and therefore targeting ‘hotspots’ with the intent of reducing such offences so that public places may be used by others without risk of being offended, because they do have a right to be protected from harm of offensive language. Whilst it is a criminal offence, it should not prosecute a particular group (such as Indigenous Australians) more than any other population group.

d) Negative impact of current legislation on Indigenous Australians The police has used offensive language to their advantage in order to punish and cause arrest of vulnerable groups over words that are relatively harmless.27 Indigenous Australians are a particularly vulnerable group who contribute to only 2% of the population, but make up to 27% of the population in prisons28; and are 12.5 times more likely to be imprisoned than nonIndigenous Australians.29 The main cause? Over-policing in certain areas, and police performing the conflicting roles of victim, bystander and law enforcement; when it comes to witnessing and punishing offensive language.30 The issue of disproportionate law enforcement against Indigenous Australians stems from a ‘one-size-fits-all’ approach,31 which did not take into consideration that some language 26

Eg. ‘Shit’ is widely tolerated and no longer considered a swear word (Police v Butler, Magistrate D Heilpern citing a decision of Phelan J) but other terms such as ‘cunt’ are still frowned upon. 27 Elyse Methven, ‘“A Very Expensive Lesson”: Counting the Costs of Penalty Notices for Anti -Social Behaviour’ (2014) 26(2) Current Issues in Criminal Justice 249. 28 Australian Law Reform Commission, above n 21. 29 Ibid 22. 30 Elyse Methven, above n 25. 31 Australian Human Rights Commission, Equality and Non-Discrimination, The Declaration Dialogue Series, No 5 (2013) 8.

LAW 109

Assessment Task 5: Law Reform Submission

commonly used amongst Indigenous Australians may be deemed offensive by police and thus result in apprehension. Thus it is time for a law reform to create a tailored solution that will reduce the incarceration rate of Indigenous Australians.

e) Arguments for and against legal change The perception of offensiveness in the individual person is already skewed by their own socio-cultural background. Judges and police officers are only human, but they generally fail to reflect on the fact that they too are subject to this inherent bias. When making decisions, they generally fail to take into account how their personal upbringing, expectations and moral beliefs may affect their interpretation of offensive language.32 Rather than relying on case law, a clearer definition of ‘offensive language’ within s 4A of the Summary Offences Act may benefit judges in rulings. An agreed upon list with exemplary terms that may be deemed as offensive, would provide a clear criteria for police about what terms they may apprehend an individual for. Whilst a clearer definition may be desirable, it is difficult to be specific and yet account for all types of offensive language. A broad umbrella term may encompass multiple meanings thus enabling case by case application of various definitions that can be derived from common law cases, such as is the case with the current legislation. Furthermore, a list of agreed upon offensive terms may be useful but it is highly unrealistic and impractical. Social attitudes towards ‘bad language’ are constantly changing, 33 meaning any such list would need constant updates to include new terms and remove any that are

Equality cannot be achieved through a one-size-fits-all approach as ‘rights, entitlements, opportunities and access are not equally distributed throughout society’ 32 Methven, above n 25, 99. 33 Ibid.

LAW 109

Assessment Task 5: Law Reform Submission

widely tolerated. It also raises questions of ‘agreed upon’ by who? The Australian Public? The Government? Linguistics Experts? Instead of such a list of terms, it may be more practical to repeal s 4A of the Summary Offences Act. After all, the objective of public order offences is not harm prevention for the individual, but to protect the wider community from ‘disorder calculated to interfere with the public’s normal activities’.34 It may offend a few individuals, but mere utterance of offensive terms does not interfere with anyone’s activities, and offensiveness should not form the basis of any criminal laws.35 Repealing the s 4A would reduce the apprehension rate of Indigenous Australians due to offensive language, and allow for police to direct their attention to more serious crimes such as assault and violence against Indigenous Australians. Repealing s 4A may be more practical, but it raises moral and social concerns. If offensive language is no longer a crime, ‘bad language’ may lower overall standards of ‘proper’ English language and widespread use of expletives. The notion of ‘proper’ English and ‘bad language’ as an impurity only applies when expletives are uttered out of context.36 If used amongst equals, for example if two students swore at university, such language is acceptable. Out of context, not so much. Whether or not it is within context would for the police and magistrates or judges to decide on a case by case basis.37 The Australian Law Reform Commission proposed the introduction of “Indigenous Experience Reports”, which were to be created by independent Indigenous Australian

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R v Lohnes [1992] 1 SCR 167; cited by Department of the Attorney-General and Justice, Northern Territory, Review of the Summary Offences Act, Final Report (2013) 23. 35 Quilter and McNamara, above n 19. 36 Kathryn Burridge, ‘Linguistic Cleanliness is next to Godliness: Taboo and Purism’ (2010) 26(2) English Today 3. 37 Ibid.

LAW 109

Assessment Task 5: Law Reform Submission

organisations and submitted to courts as evidence.38 The report would provide judges with a detailed account on how ‘unique systemic and background factors’ have impacted on the individual in court, to allow for better informed decisions about the most appropriate sentence to be made.39 Whilst the recommendation of such a report may aid Indigenous Australians in court, it does not address the issue of over-policing and apprehension of Indigenous Australians in the first place. Ideally, the goal is to reduce apprehension for offensive language in the first place, rather than to remedy the case in court. It is rarely examined in court, as most offensive language charges have high rates of guilty pleas.40

f) Recommendations for Change Having analysed the historical background, and current laws governing offensive language in New South Wales, as well as determining why there is a need for change, whilst considering both arguments for and against policy reform; the following recommendations are being made to better reflect modern standards of acceptable behaviour and prevent the disproportionate effect currently experienced by Indigenous Australians:

1. Repeal s 4A of the Summary Offences Act 1988 (NSW), in its entirety.

38

Australian Law Reform Commission, above n 21, 29. Ibid. 40 Quilter and McNamara, above n 19, 538. 39

LAW 109

Assessment Task 5: Law Reform Submission

Should the previous proposal be rejected, the following recommendations apply:

2. Liaison between State and Territory governments and Indigenous Australian organisations to develop national criminal justice targets.41 ● Criminal justice targets ought to include specified targets aimed at reducing: ○ Over-policing ○ Imprisonment rates of Indigenous Australians ○ Violence against Indigenous Australians

The above actually proposed by the Australian Law Reform Committee, thus no credit can be taken for this recommendation.

3. Police education 

Independently led education program for Police to better comprehend how different socio-cultural backgrounds affect notions of offensiveness and the necessity of context, prior to apprehension.

Total: 2500 words

41

Australian Law Reform Commission, above n 21, 18. The author of this document does NOT take credit for this idea. This proposal has already been made by the ALRC. However, she does agree with the objectives of their proposal and consider it to be an effective solution that would reduce the incarceration rates of Indigenous Australians in New South Wales. The author of this document would have made a similar recommendation, albeit restricted to New South Wales only....