Offensive Language and Behaviour Offences in NSW

“Offensive language” and “offensive behaviour” are two separate but similar offences in New South Wales. While “offensive language” does not carry an imprisonment penalty, “offensive conduct/behaviour” does. Each of these offences attract a fine prescribed by sections 4 and 4A of the Summary Offences Act 1988 (NSW).

Read on to learn more about offensive language and offensive behaviour laws in New South Wales.

Offensive Language

It is an offence to use offensive language in or near (or within hearing from) a public place or a school in New South Wales, under section 4A Summary Offences Act 1988 (NSW). This offence may be dealt with by way of a fine only (penalty notice) which will not result in a criminal conviction if paid. If dealt with by being issued with a Court Attendance Notice or by a court election, then the penalties are more severe, and may result in a criminal record if convicted by a Local Court Magistrate in NSW.

Police have discretion to serve you a penalty notice or fine on the spot instead of a ‘Court Attendance Notice’. A Court Attendance Notice requires you to appear in court to face the offence, which also attracts heavier penalties. In contrast, a fine or penalty notice for this offence will not require a court appearance, and payment of the fine will put an end to the matter without a conviction or any further penalty.

If you are handed a penalty notice fine for offensive language you still have the option to have it court elected to be heard before a Magistrate in court.

Offensive language definition

Offensive language is defined as language that would wound the feelings, arouse anger or resentment or disgust or outrage in the mind of the hypothetical reasonable person present according to current community standards. This is the definition of “offensive” by the court in Police v Butler [2003] NSWLC 2. The reasonable person does not have to actually be present to hear it.

The reasonable person is considered to be not thin-skinned and is reasonably tolerant and understanding, and reasonably contemporary in their reactions.

Is Offensive Language a Strict Liability Offence?

Offensive language is not a strict liability offence. Strict liability offences are offences of the most serious kind in criminal law. Strict liability offences cannot be dealt with in the Local Courts. They can only be dealt with in the District or higher court. Summary offences such as offensive language can only be dealt with in the Local Court as they are amongst the least serious of offences in criminal law.

Is Offensive Language a Criminal Offence?

Offensive language is a criminal offence attracting up to a $660 fine or a community correction order, which may include a community service work condition despite the offence not being punishable by imprisonment pursuant to section 4A. This penalty is a maximum penalty a Local Court Magistrate can impose if the offence is dealt with in court. A conviction will result in a criminal record unless a non-conviction CRO or section 10order is imposed.

Offensive Language Fine NSW

An Offensive language offence carries an on-the-spot fine (or penalty notice fine) of $500 penalty notice in NSW. This is outlined in schedule 4 penalty notice offences to the Criminal Procedure Regulation 2017 (NSW). This applies if police issue you the fine instead of a ‘court attendance notice’. A ‘court attendance notice’ will required you to appear in court to answer the charge which may result in conviction and heavier penalties.

Here is more on appealing fines in NSW.

Offensive language examples

Offensive language may cover a wide range of languages including the use of the “F” word depending on the circumstances it is used in. It may also include racial slurs, remarks or comments so long as it fits within the offensive language definition according to current community standards.

Using the “F” word in public with children around to hear it will likely amount to offensive language.

Using the “F” word at a night club or bar will not amount to offensive language in NSW.

Offensive Behaviour NSW

“Offensive behaviour” is also referred to as “offensive conduct”. This is when a person conducts himself or herself in an offensive manner in or near, or within view or hearing from, a public place or school. This offence carries up to 3 months imprisonment or $660 fine if dealt with in the local court, prescribed by section 4 Summary Offences Act 1988 (NSW).

This offence may either be dealt with by a charge (court attendance notice) or penalty notice infringement fine. If police issue a penalty notice fine, it will mean you are not required to attend court, and payment of the fine will put an end to the case without a conviction or any further penalty. If police issue a court attendance notice, it will mean you must attend court to answer the charge which may results in a conviction and heavier penalties.

If issued with a penalty notice fine, and you wish to dispute it, you may ‘court elect’ the infringement which will result in a requirement for you to attend court to answer the allegation. Heavier penalties are then applicable.

Offensive conduct (behaviour) definition

“offensive conduct” is behaviour that wounds the feelings, arouses anger, resentment or disgust or outrage in the mind of the hypothetical reasonable person present according to current community standards.

The reasonable person is someone who is reasonably tolerant and understanding, and reasonably contemporary in his or her reactions. The reasonable person is not thin-skinned and does not have to actually be present to view the behaviour.

Offensive behaviour fine NSW

Offensive behaviour/conduct penalty notice fine is $500 in New South Wales. Payment of this fine puts the matter to an end without a conviction or further penalty. This is reflected in schedule 4 penalty notice offences to the Criminal Procedure Regulation 2017 (NSW).

Is Offensive Behaviour a Criminal Offence?

Offensive behaviour or conduct is a criminal offence which attracts criminal penalties of up to 3 months imprisonment upon conviction. A conviction can be avoided if the offender is sentenced with a non-conviction penalty such as a section 10 or Conditional Release Order by a Local Court Magistrate in NSW.

Offensive Behaviour Examples

Offensive behaviour or conduct may range from verbal abuse to demeanour that’s anti-social such as being overly drunk and disorderly. It can cover a wide range of conduct which is a common reason why police lay this charge when it proves challenging for police to prosecute a more explicit crime.

Displaying a racist sign in public will likely constitute offensive behaviour/conduct.

Urinating or releasing your bowls (defecating) in public without a reasonable excuse will likely amount to offensive conduct.

The infamous Porsche driver Richard Pusey who films and mocked a dying police officer after being pulled over by police for driving his Porsche at 147km/h on Melbourne’s Eastern Freeway amounted to offensive conduct/behaviour. He was urinating away from police on the side of the road when a truck driver Mohinder Singh allegedly veered into the emergency lane. The Truck hit and killed four police officers before smashing into the police cars and the Porsche. After the crash, Pusey walked around the scene filming the officers dying and providing vile commentary. “I think everyone got cleaned up” he said. “There’s four people. Look at that.” As Pusey zoomed in on the face and body of a dying Senior Constable as she lay “moaning” at the crash site, Pusey said, “Absolutely amazing”. “That is f***ing justice…That is f***ing amazing”. He also said, “you f***ing c***s, I guess I’ll be getting a f***ing Uber home, huh”.

Pusey was charged and convicted for outraging public decency amongst other charges. He was sentenced to 10 months’ imprisonment.

Defences to Offensive Language or Offensive Behaviour Charges

It is a defence to an offensive language or conduct offence if the person who committed the offence did so for a reasonable excuse.

Examples that may constitute a reasonable excuse include a medical condition that caused you to behave in the manner alleged or use the offensive language. This defence is outlined in the legislation namely, section 4(3) for offensive conduct, and section 4A(2) for offensive language.

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