Freedom of speech is one of the most fundamental rights in modern societies. However, this right is not absolute and may be limited in certain circumstances. One such limitation is the use of offensive language, which raises the question: Can you be arrested for offensive language, especially swearing in public?
Offensive language is language that is deemed inappropriate, offensive, or vulgar by the general public or a particular audience. It can refer to the use of swear words, slurs, insults, or other language that may be considered disrespectful or harmful to others. The definition of offensive language may vary depending on the context and the audience. For example, language that is considered acceptable among friends may be offensive in a professional or public setting. Additionally, offensive language can be subject to cultural and social norms, and what may be considered offensive in one culture may not be offensive in another.
In Australia, the laws surrounding offensive language vary from state to state. In some states, such as Queensland and Victoria, it is explicitly illegal to use offensive language in public. However, in other states, including NSW, the laws are less clear-cut.
The NSW Summary Offences Act 1988 outlines the law surrounding offensive language. Under section 4A of the act, it is an offense to use “offensive language in or near, or within hearing from, a public place or a school.” The use of such language can result in a fine of up to $660 or imprisonment for up to 3 months.
The use of offensive language must be proven beyond reasonable doubt. In other words, the police must be able to demonstrate that the language used was offensive and likely to provoke a violent reaction or create a public disturbance.
In NSW, swearing is not inherently illegal. However, it can be considered offensive language under certain circumstances. Offensive language is defined as language that is “likely to provoke a violent reaction from another person” or is “likely to create a public disturbance.” This means that if someone is using swear words in a public space and it is causing people around them to feel threatened or disturbed, then they could potentially be arrested for offensive language.
Section 4A(2) of the Summary Offences Act 1988 provides that if you can demonstrate to the Court that you had a reasonable excuse for conduct that may have been offensive, you cannot be found guilty of this offence. Depending on the specifics of your case, it may be possible to defend against the charge by arguing that the alleged language was not used, was not offensive within the context of criminal law, or was not spoken in or near a school or public place.
Determining whether or not swearing in public is offensive can be a subjective matter. The use of profanity in casual conversation between friends may not be considered offensive, but the same language used in a public setting could be deemed offensive depending on the context.
For example, if someone is loudly swearing and using abusive language in a residential area, causing residents to feel threatened and distressed, this would likely be considered offensive. Similarly, if someone is shouting and using profanity in a crowded shopping centre, creating a disturbance and upsetting other shoppers, this could also be considered offensive.
However, if someone is using swear words in a private conversation or in a non-public area, such as a private residence, this would generally not be considered offensive.
If you are charged with offensive language, you may choose to plead not guilty to charges of Offensive Language or Offensive Conduct and rely upon any applicable defences available to you. The Prosecution will seek to prove beyond a reasonable doubt the legal elements of the offence and that your defence do not apply to the charges against you.
If you find yourself facing such charges, obtaining legal advice is important to increase your chances of success. Certain defence strategies may also be available to support your case if you decide to plead not guilty.
There are a number of legal defences available to you. There are as follows;
1. Reasonable Excuse
To avoid being penalised for offensive conduct under Section 4(3) of the Summary Offences Act 1988, it is necessary to demonstrate to the judge that there was a valid reason for your behaviour. The prosecution must then prove, beyond a reasonable doubt, that this defence does not apply in your situation. However, to successfully defend against this charge, you only need to prove that you had a reasonable excuse based on the balance of probabilities.
The defence of duress is characterised as the act of unlawfully pressuring an individual through threats and harm to engage in an activity that they would not normally participate in under ordinary circumstances. Utilising this approach can serve as a defence in a charge involving offensive language or conduct.
The defence of necessity arises when an individual is compelled to violate the law in order to prevent a more severe outcome, such as irreparable harm or imminent danger. This is a challenging defence to establish in Court, as it shares some similarities with the duress defence strategy.
The principle of self-defence asserts that an individual cannot be held accountable for their actions if they were taken to avoid greater harm to themselves or another person, prevent the unlawful deprivation of their own or someone else’s liberty, protect property from being unlawfully taken, or prevent criminal trespass.
Under section 4A of the Summary Offences Act 1988 in New South Wales (NSW), using offensive language in a public place or near a school is an offense that can result in a penalty notice or court appearance. The maximum penalty for using offensive language in public in NSW is a fine of up to $660, and/or imprisonment for up to 3 months.
Accordingly, swearing in public is not necessarily illegal in NSW or other parts of Australia. However, it can be considered offensive language under certain circumstances, and therefore, could result in arrest and a fine or imprisonment.
If you have been charged with a offensive language offence in NSW, you should speak to criminal lawyers in Liverpool.