Offensive Conduct 

Most public order offences fall under the Summary Offences Act 1988, and commonly cover offensive language, offensive conduct, wilful and obscene exposure, violent disorder, and more. In order to constitute a ‘public offence’ this conduct must occur in a public place or near a school. A ‘public place’ is considered as anywhere that is open to the public, or used by the public. In some instances a person will be asked to move on from a public place for behaving in an offensive manner, and failure to comply with this direction can constitute an offense as well.

Offensive conduct falls under section 4 of the Summary Offenses Act 1988, and prevents a person conducting themselves in an offensive manner in or near a public place or school. The maximum penalty for this charge is a fine of $660 and/or a term of imprisonment of up to 3 months. The test applied to determine if the conduct was offensive is that of whether a reasonable person would be offended by the conduct.

The conduct must be considered more than merely displeasing or insulting to amount to a criminal offence. Courts will look to the circumstances that the conduct was alleged to be committed in. What may constitute as offensive conduct in one scenario will not meet the test in differing circumstances. Although most charges do not result in a term of imprisonment, they can incur a criminal record and it is imperative to seek appropriate legal advice to defend such a charge to avoid this. 

Offensive Language

Pursuant to section 4A of the Summary Offenses Act 1988, a person must not use offensive language in or near a public place or school. The maximum penalty for offensive language is a fine of $660, and in some instances a court-ordered community service sentence as well. Courts will consider what constitutes as offensive language in the context of the situation. Often this charge will be laid when someone verbally abuses or swears at a police officer, and often precedes or accompanies are more serious crime such as ‘resist arrest’.

The charge of ‘offensive language’ is contentious as the threshold for what is considered ‘offensive’ is relatively subjective. In Worcester v Smith [1951] the Court found ‘offensive’ to mean ‘such that is calculated to wound the feelings, arouse anger or resentment or disgust in the mind of a reasonable person...’.

There is argument that police should exercise more discretion when laying charges for ‘offensive language’, as it can often result from an argument or altercation where police become involved and no other charges are laid. Often the charge is a person’s first interaction with the criminal justice system, and without proper legal representation this charge can result in a criminal conviction. Pursuant to section 4A(2) of the Act, if you can satisfy the Court that you had a reasonable excuse for offensive conduct that otherwise would have been an offence, you will not be found guilty of the offence. It is important to seek appropriate legal advice for these relatively minor charges, so avoid a criminal conviction.