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What constitutes “offensive”?

The law states: “A person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school”.

This leaves a huge discretion to the police and the court as to what conduct constitutes an offensive crime. It actually creates a level of uncertainty for the individual as to what conduct may be illegal.What does “offensive, insulting, abusive and indecent” mean? Different people have different ideas about what constitutes offensive behaviour and language. The intention of this law is to serve the public – not the individual. It is not a private offence, it is a public offence.

The consequence of this vague, uncertain definition is that you may be committing an offence, without knowing that your “normal everyday” behaviour might be illegal. It can be an offence if it is simply within hearing distance, or within sight of a public place. Think about the following situations:

You might be committing an offence if you are having sex in the “privacy” of your own home if you are within sight of a public place – a road, a park, or any other public place.
Using foul language in your backyard could be a crime if you are within viewing or hearing distance from a public place.

The list of possible offences is limitless. In fact, as the law stands, all that is needed to commit a crime, is that “if a reasonable person” had been in viewing or hearing distance in a public place, they could be offended. This does not solve the problem of defining the offence – who, or what is a “reasonable person”?

What may be offensive to one person, might not be to another. In NSW it is still illegal to swear in public. You may be charged with the crime of Offensive Language if it is near a public space or school. Again the definition of what constitutes “offensive” or illegal language is vague. Does it include swearing? Homophobic and racial remarks? As it stands now, it may be included.

These charges are seldom brought in isolation; they often arise out of other situations that may constitute an offence. A person refuses to leave a licensed venue when requested to do so – often this will lead to police involvement, which may lead to other public offences such as Offensive Conduct or Offensive Language.

What needs to be done in each case, is to evaluate if the conduct is in fact offensive in the circumstances. As the law stands currently – rather err on the side of caution, or you may find yourself on the wrong side of the law.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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