Offensive conduct and language offences in New South Wales aim to regulate public behaviour by enforcing community standards. However, these laws rely on broad police discretion, which has led to disproportionate impacts on Aboriginal people, especially in regional areas. This has prompted continued calls for law reform.

Offensive conduct and language offences criminalise acts in public like swearing, urinating, fighting and wearing clothing displaying offensive language (DOC6267, DOC6300, DOC5103, DOC6475, DOC6476, DOC6477).

These offences are part of a broader category of public order offences that are designed to control and regulate behaviour in public spaces.

The meaning of ‘offensive’

The definition of what constitutes ‘offensive’ behaviour in New South Wales has evolved significantly over time, reflecting the shifts in social norms and legal standards.

Early laws such as the Vagrancy Acts of 1851, 1901 and 1902 made it an offence to use ‘obscene, threatening, abusive or insulting words or behaviour’ in public that breached the peace (DOC5728, DOC5107, DOC1010). This was later replaced by the Summary Offences Act 1970 (NSW) which criminalised the use of ‘unseemly words’ in public (DOC5103).

In 1979, this was replaced by the Offences in Public Places Act 1979 (NSW) which prohibited behaviour ‘likely to cause a reasonable person justifiably in all the circumstances to be seriously alarmed or seriously affronted’ (DOC5105). This was changed in 1983 so that the behaviour only needed to cause offence to be a crime (DOC6267).

The current law was introduced in 1988 with the Summary Offences Act 1988 (NSW). It prohibits both offensive conduct and offensive language in, near or within view or hearing of a public place or school (DOC1552, DOC5162). Initially the punishment was a fine or imprisonment. In 1993 imprisonment was removed as a punishment for offensive language (DOC6280).

The policing of these offences relies heavily on the discretionary judgment of police officers, who must determine whether a ‘reasonable’ person would consider the behaviour offensive in the given circumstances (note the Towards Truth 'Contemporary Policing' research is coming soon).

Disproportionate impact on Aboriginal people

Aboriginal people are charged at a higher rate for public order offences, such as offensive conduct and language, than non-Aboriginal people (DOC6301).

This offence may be an initial point of contact of Aboriginal people with police, which can escalate into multiple charges: the notorious ‘trifecta’ of offensive language or conduct, resisting arrest and assaulting police (DOC3002, DOC6678, DOC6679).

Prior to 1982, there is limited documented evidence outlining the impact of these offences on Aboriginal people (DOC6305).

In 1982 the Anti-Discrimination Board of New South Wales examined court appearances for street offences (public order offences) in 1978 (under the Summary Offences Act 1970 (NSW)) and 1980 (under the Offences in Public Places Act 1979 (NSW)) across ten country towns in north-western New South Wales with high Aboriginal populations (DOC6302). It found:

• 98% of court appearances for street offences involved Aboriginal people.
• 61% of cases in 1981 involved the use of ‘unseemly words’, compared to 43% across the state.
• In 75% of cases, police were the individuals reportedly ‘seriously alarmed’ or ‘affronted’ by language used.
• Despite the offence being punishable by fine alone, many Aboriginal people were imprisoned after opting to ‘cut out’ the fine under the law at the time.

The research also revealed that in at least one major town, non-Aboriginal residents, including police, used offensive language more frequently than Aboriginal residents, suggesting selective enforcement (DOC6302).

The Anti-Discrimination Board concluded that the enforcement of these laws in these towns, functioned as a modern-day extension of the historical role of police in upholding social and political control over Aboriginal communities (DOC6302).

Recommendations about ‘offensive language’ laws

Since 1991, a number of reports have recommended changes to offensive conduct and language laws due to their impact on Aboriginal people.

• In 1991 the Royal Commission into Aboriginal Deaths in Custody highlighted the misuse of offensive language laws as ‘part of an oppressive mechanism of control’ of Aboriginal people (DOC1404). It recommended that laws criminalising offensive conduct and language be repealed or significantly narrowed to limit police discretion (DOC6384).
• In 2009, the New South Wales Ombudsman reviewed the Criminal Infringement Notice scheme (which allowed for ‘on the spot’ fines) and found a significant increase in the number of Criminal Infringement Notices issued to Aboriginal people following its expansion across the state. Notably, 45% of Criminal Infringement Notices issued to Aboriginal recipients were for offensive language. It recommended ‘That the NSW Police Force develop local strategies to reduce the over-representation of Aboriginal people being charged and fined for offensive conduct and offensive language incidents’ (DOC1053).
• In 2012, the New South Wales Law Reform Commission examined the use of Criminal Infringement Notices for minor public order offences, including offensive conduct and language. The Commission again confirmed that Aboriginal people were impacted by these laws disproportionately. The Commission recommended an urgent review and the potential repeal of laws criminalising offensive conduct and language (DOC6306).
• In 2017, the Australian Law Reform Commission also found Aboriginal people were significantly over-represented in charges of offensive language and recommended that governments review and consider amending or repealing the laws (DOC3623).

To date, the laws have not been changed.

For more information

This part of Towards Truth highlights criminal offences that have had a particularly disproportionate impact on Aboriginal people in NSW. See also Contemporary Policing (coming soon) which considers the impact of police discretion and other policing practices.

Summary Offences (Amendment) Act 1993 (NSW)