Offensive Language

Offensive language is a crime that is charged when someone uses foul or offensive language. It is most commonly used either where a person has verbally abused police, or along with other more serious charges.

In NSW, offensive language carries a maximum penalty of a fine of six penalty units. However, it is important to note that the offence, if determined by a court, can still result in a conviction and criminal record.

Legislation

The offence of Offensive Language is contained in section 4A of the Summary Offenses Act 1988 which states: “A person must not use offensive language in or near, or within hearing from, a public place or a school.”

However, the following subsection provides a defence if “the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged.”

What the Police Must Prove

To convict a person of Offensive Language, the prosecution must prove each of the following matters beyond a reasonable doubt:

They were in, near, or within view of a public place
They used offensive language

The word “offensive” is vague, and it is impossible to provide a thorough definition. The courts will typically consider each matter on its merits, but will look in particular at:

The words used
The surrounding circumstances
The number of people who heard the words
The perceived intention of the speaker

An experienced criminal lawyer will usually be able to give an idea if your words could be regarded by a court as being offensive.

Possible defences

Possible defences to an Offensive Language charge include:

Suggesting that, taking into account the context, the words were not offensive or that no one present was offended;
Suggesting you had a “reasonable excuse”