Introduction to Public Order Offences

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This article is a topic within the subject Crime & the Criminal Process.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 746-771.

Introduction

[1] Public order offences are described in various ways, such as ‘street offences’, ’police offences’, ’summary offences’, and many of the core offences include some element of behaviour regarded as ‘unreasonable’, ‘offensive’, ‘indecent’ or ‘obscene’.

  • Over 10% of the people who appear in the NSW Local Court have been charged with a public order offence. They are thus not uncommon.

Key themes that have already been discussed, but are still relevant here, include the ubiquity of discretion, the two tiers of justice and the process as punishment.

  • Note: public order offences are dealt with summarily.

Police Discretion

[2] The first judges of acceptable behaviour are the police, and in the second instance it is magistrates. Considering that the regulation of 'behaviour' is done summarily, acceptable behaviour is ultimately never decided by a jury.

  • Police have a very large discretion in various aspects with regard to public order offences, including whether to investigate a reported crime, whether to grant bail, whether to charge and so on.
  • The police role is also complicated by the fact that they are often the victims of public order offences (meaning that the victims are also the chargers and the prosecutors.)
  • The breadth of discretion can also partly explain the disproportionate subjection of Indigenous people, the young, the poor and the homeless to public order offences.
  • It should be recognised that public order offences have a core concept of public space, and as such those who use public spaces more than others (such as the groups listed above) become disproportionately subject to these offences.

Regulating Public Spaces

[3] Public order offences generally have a core concept of ‘public space’, and involve the behaviour in question having occurred in, near, within view of, or within hearing from a public space.

Under s 3 (1) of the Summary Offences Act 1988 (NSW), a 'public place' means:

(a) A place (whether or not covered by water), or
(b) A part of premises,
That is open to the public, or used by the public, whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited, class of persons, but does not include a school;...
  • s 22 contains a simplified definition of ‘public place’ for the purposes of the provisions on regulation of public assemblies, being ‘a public road, public reserve or other place which the public are entitled to use’.

These definitions of public place have been discussed in Camp:[4]

  • The definition is very wide - basically almost any place which the public are in the habit of using, regarding of whether they have the right to or not, can be covered by it. Whether the property is publicly or privately owned is irrelevant.

Public order offences were also discussed in Stutsel v Reid:[5]

  • Facts: Aboriginal man charged with using offensive language ‘within hearing of a public place’, although no-one was present to be offended.
  • Held: the offence is made out despite the absence of proof that there was anyone in the public place to be offended. However, this fact is taken consideration when determining a penalty.

The Historical Development of Public Order Legislation

[6] The history of public order offences is closely connected to the history of policing.

  • The police are essentially a modern institution, with the force emerging in Australia in the 1880s.
    • It should be noted that a very important role of police is to maintain and ensure social/public order, as opposed to investigating serious crime.
  • The first comprehensive summary offence legislation in NSW was the Police Offences Act 1901 (NSW). The proscribed behaviours seem quaint and largely ridiculous by modern standards.
  • The first major change away from these outdated offences was in 1970, with the Summary Offences Act 1970 (NSW).
  • It became a hated instrument by many, given its implementation in response to the anti-war Vietnam demonstrations at that time, and its general objective to control demonstrations and protests.
  • It was thus repealed in 1979, and replaced with a number of acts such as the Offences in Public Places Act, the Prostitution Act and so on.
  • NSW Police violently opposed the changes, seeing it as a threat to their power. They argued that the laws needed to be there in order for them to control the streets.
  • This new public order offence law in NSW was later repealed and replaced with the Summary Offences Act 1988, which we have today.

Law and Order Election ‘Bidding’

[7] The reintroduction of the Summary Offences Act 1988 was the outcome of both political sides campaigning on law and order platforms, promising more police and tougher measures in order to outbid the other.

  • Little consideration was given to the clear effects that recriminalising offensive language would have on groups such as Aboriginal people.
  • The ‘tough on street crime’ approach to law and order has become established in NSW, and the resultant pattern of campaign bidding and counter-bidding by political parties has become a common feature in the lead-up to elections.
  • However, it should be noted that in recent electoral campaigns, the focus on more punitive criminal sanctions has reduced somewhat, perhaps due to the fact that it is no longer a point of difference between the major parties. This can only be a good result.

Offensive and Other ‘Harmful’ Behaviour

Offensive Conduct and Language

[8] 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.

  • s 4 deals with offensive conduct. The subsections roughly say:
    1. Prohibits offensive conduct within view or hearing from, a public place or a school. It is punishable either by a fine or a short imprisonment.
    2. Merely using offensive language doesn't amount to offensive conduct.
    3. Exception: if the person has a reasonable excuse for the way he acted.
  • s 4A deals with offensive language. It similarly prohibits the use of offensive language (ss 4A (1)) unless there is an excuse (ss 4A (2)), but the penalties are different:
    • There is no imprisonment for offensive language, instead there's community service.

The removal of imprisonment as a potential punishment for offensive language was due to recognition of the heavy use of offensive language charges against Aboriginal people resulting in arrest, detention and sometimes death in custody.

  • Also, a community service order is available as an alternative to a fine, to reduce the likelihood of someone going to jail for fine defaulting.

The Operation of Offensive Language and Offensive Behaviour Charges

[9] The offences often result in the presence of police officers, or especially in terms of offensive language, are often directed to police officers.

  • The offences are regarded as serving a street-sweeping purpose, similar to an informal ‘move-along’ direction.
  • Aboriginal people and young males from low socio-economic backgrounds are overrepresented as subjects of offensive behaviour and language charges.
    • Most offences occurred on Thursday to Saturday nights, outside bars, and often following the offender being approached by police for an unrelated matter.
  • The recent availability of fines (the Criminal Infringement Notice, CIN) as an alternative to arrest or other modes of initiation for public order offences has possibly created a net-widening effect, where individuals who would not have been penalised for their behaviour in the past are now being given fines.

What is Offensive?

[10] The test of offensiveness is whether the behaviour is ‘calculated to wound the feeling, arise anger or resentment or disgust or outrage in the mind of the reasonable person’ (objective test). The reasonable person is viewed as reasonably tolerant and contemporary.[11] This is not always easy to determine, since attitudes towards what is offensive vary greatly from person to person.

Swearing

[12] Swear words such as ‘fuck’ and ‘cunt’, often directed at a police officer, have become the majority of offensive language charges. However, these words are increasingly a part of everyday language and are thus their status as 'offensive' is being challenged.

This was discussed in Police v Butler:[13]

  • Facts: an aboriginal woman made extensive use of the word fuck when talking to police.
  • Held: swear words of that nature are 'rude and improper’ but not ‘offensive within the meaning of the section’, because they are pretty much a part of everyday society (can be heard everywhere on the streets, on tv, even in court etc). They have 'lost their punch'.

In general, the authorities are conflicting. Police continue to prosecute people for the use of swear words, but there have been several publicised instances in which the court has refused to recgonise the use of common swear words such as 'get fucked', 'youse are fucked', 'prick' etc as offensive language within the meaning of the act.

  • The most decisive issue is the context in which the words were said.

Political Protest

[14] Political protests have historically been incidents in which offensive behaviour or language in a public place is likely to occur. The leading case examining when is something considered offensive is Ball v McIntyre:[15]

  • Facts: the defendant hung up a sign on a statute of the king protesting against the Vietnam war. He was charged for behaving in an offensive manner in a public place.
  • Held: the test for offensiveness is whether the reasonable person would be wounded or feel anger, resentment, disgust or outrage. The reasonable man is reasonably tolerant and understanding, and reasonably contemporary in his reactions. In this case, it was unlikely that anyone would be wounded or such by the conduct.

In these days, it is rare for political protests to give rise to offensive conduct or language charges. An instance in which it did occur was Coleman v Power:[16]

  • Facts: the defendant, a political protestor, called a police officer ‘a corrupt police officer’.
  • Held: due to modern notions of free speech and freedom of communication, the defendant was not guilty.

Mens Rea for Offensive Behaviour/Language

[17] ss 4-4A are silent as to the mens rea standard required for offensive behaviour/language. Breaking down the elements of the actus reus, the offence has an 'act' and 'circumstance':

  • Act - the actual conduct - the standard is of intent (full subjective inquiry).
  • Circumstance - that the conduct was offensive, and that the conduct was ‘in or near, or within view or hearing from, a public place or school’ - the standard is not clear.

In Jeffs v Graham,[18] it was held that factors such as the stigma attached to conviction and the ‘not insubstantial’ penalty cast the offence as truly criminal and require proof of a subjective intention to offend on the part of the accused.

  • However, the wording used was pretty ambiguious, which has caused courts to remain divided between the standards of subjective intention or strict liability. This is because different jurisdictions applied different standards.

In the Northern Territory, these issues were discussed in Pregelj and Wurramurra v Mansion:[19]

  • Facts: a policemen saw through a window two people having sex in their house, and they were later charged for offensive behaviour.
  • Held: followed the principles of He Kaw Teh regarding only imposing strict and absolute liabilities in special cases. In these offences, there must be an intention to offend someone.

A different ruling was held in South Australia, in Pfeifer:[20]

  • Facts: the defendant wore a shirt saying 'too drunk to fuck'. He was charged for offensive language. He argued that he did not intend to offend anyone - it was the name of a song of a popular band which he liked (the shirt also had the name of the band).
  • Held: the court ruled that the mens rea standard is one of strict liability. Parliament intended to also punish those who act unreasonably, in the sense of having no reasonable grounds to believe that their conduct will not give offence. The absence of a mens rea requirement will compel people to take greater care when using offensive language.

Defence of 'Reasonable Excuse'

[21] It is a defence to a charge of offensive behaviour (s 4(3)) or offensive language (s 4A(2)) for the accused to satisfy the court that there was a ‘reasonable excuse for conducting himself or herself in the manner alleged’.

  • In Karpik v Zisis, it was found that a reasonable excuse for profanity in a public place would be as part of ‘a reflex action...[such as following] a heavy implement falling on one’s foot’.[22]
  • This was confirmed in Conners v Craigie, where it was qualified by saying that the offensive behaviour must have been an immediate reaction to something, not a reaction to something which happened long ago.[23]

The reasonable excuse defence was also discussed in Jolly:[24]

  • Facts: the defendant was injured in a brawl with police (bitten in the neck by the dog) and his fiancee was injured too. He repeatedly called the police 'dog cunts' and made remarks about their families (you fucked his mum, he fucked your mum etc).
  • Held: the court ruled that the reasonable excuse for swearing is only available if it was in response to the circumstances. In this case, the defendant was swearing not as a reaction to the dog bite, but to insult the officer.

End

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References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, p. 746.
  2. Textbook, pp. 746-7.
  3. Textbook, pp. 747-8.
  4. [1975] NSWLR 452.
  5. (1990) 20 NSWLR 661.
  6. Textbook, pp. 749-51.
  7. Textbook, pp. 751-2.
  8. Textbook, pp. 752-3.
  9. Textbook, pp. 753-5.
  10. Textbook, p. 755.
  11. Ball v McIntyre(1966) 9 FLR 237
  12. Textbook, pp. 755-60.
  13. [2003] NSWLC at [11].
  14. Textbook, pp. 760-6.
  15. (1966) 9 FLR 237. Note that this case was cited in Butler (above).
  16. (2004) 220 CLR 1.
  17. Textbook, pp. 763-769.
  18. (1987) 8 NSWLR 292.
  19. (1988) 31 A Crim R 383.
  20. (1996) 68 SASR 285.
  21. Textbook, pp. 770-1.
  22. (1979) 5 Petty Sessions Review 2055, 2056.
  23. (1994) 76 A Crim R 502.
  24. [2009] NSWDC 212.
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