Offensive Language (NSW)

In NSW, it is an offence to use offensive language in or near a public place or school. To be charged with the offence, the language used must be found to be offensive. The legal test involves a consideration of whether a “hypothetical reasonable person” would find the language offensive in the circumstances. 

The maximum penalty is a fine of 6 penalty units. Police can also deal with the matter by way of an infringement notice (which can be disputed in Court upon the making of a Court election).

What is the Offence of Offensive Language?

The offence of Offensive Language is contained in section 4A of the Summary Offences Act 1988 (NSW) which states:

• A person must not use offensive language in or near, or within hearing from, a public place or a school.

It is a defence where a person had a reasonable excuse for using the language.

The following acts may constitute an offence of Offensive Language:

• Walking through a school repeatedly yelling things like “fucking cunts”, “sluts”, “cock” and other swear words; or
• Approaching someone you do not like on the street and saying that you’re glad their (recently deceased) mother is dead because she was a “fucking slut who deserved to die”.

What Must Be Proven?

For a person to be found guilty of Offensive Language the Prosecution must prove each of the following matters beyond a reasonable doubt:

• You used language;
• The language was offensive; 
• You were in or near, or within view or hearing from, a public place or a school.

Which Court Will Hear the Matter?

This offence is a Summary Offence, which means the matter will be finalised in the Local Court. 

Possible Defences to Offensive Language

The following defences may be available for an Offensive Language charge:

• That you were not the person who said the words;
• That the language was not offensive and/or didn’t fall within the legal definition of ‘offensive’ language;
• That you were not in or near, or within view or hearing from, a public place or a school;
• You had a reasonable excuse for your conduct; or
• To argue self-defence, necessity or duress.

Common Questions

Will I receive a criminal conviction?

Not necessarily. Because of the relatively low maximum penalty, a non-conviction is a viable outcome – particularly if the person has no or limited criminal history. However, convictions are nevertheless regularly recorded. If a person was to plead not guilty and was acquitted, they would not receive a conviction. 

In NSW, a Court can impose any of the following penalties for this charge:

• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10 

The consequences of a conviction can be serious depending upon what a person does for a living and any need to travel. It is important to get legal advice if you think an offence like this would impact your future. 

Will I go to Gaol for Offensive Language?

No. This is a fine only offence. The Court cannot impose a Gaol sentence. 

Can I be charged with Offensive Language for simply saying “fuck” or “cunt”?

Yes, but you may not be guilty of the offence. Police can charge a person for offensive language for merely saying the word ‘fuck’. However, whether or not a person is guilty is a separate question. The language must be found to be offensive in the context it’s said. For example, a person at a sports bar who yells “fuck yes cunt” when his team scores is unlikely to be found guilty of offensive language. However, a person who yells “you are a fucking cunt” to a priest giving a eulogy at a public vigil would likely be. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.