Offensive Language

Offensive Language is a crime under Section 4A of the Summary Offences Act 1988 which carries a maximum penalty of $660 or a Community Correction Order with up to 100 hours of community service work.

To establish the offence, the prosecution must prove beyond reasonable doubt:

1. That you used Offensive Language, and
2. That it was used in, near or within hearing from a public place or school.

There is no list of words that constitute Offensive Language. The test is whether a hypothetical person who is ‘reasonably contemporary’ would consider the language offensive.

To be ‘offensive’, the language must be “calculated to wound the feelings, arouse anger or resentment or disgust in the mind of a reasonable person’.

It is not enough that it was merely ‘hurtful or blameworthy or improper’, or ‘against standards of good taste or good manners’.

A ‘public place’ is defined as any place or part of a premises which is open to or used by the whole or part of the public whether or not payment is required to access it.

This is a broad definition which includes:

1. Pubs and clubs
2. Restaurants
3. Shopping Centres
4. Retail Stores, and
5. Private lands which allow public access

A defence to the charge is having a reasonable excuse to utter the language including where you acted out of impulse such as swearing when a heavy object falls on your foot.

Context is crucial for determining whether language is offensive.