12.167 Stakeholders to this Inquiry have advised that offensive language provisions and subsequent infringement notices for such conduct continue to be an issue for Aboriginal and Torres Strait Islander peoples.
Recommendation 12–4 State and territory governments should review the effect on Aboriginal and Torres Strait Islander peoples of statutory provisions that criminalise offensive language with a view to:
repealing the provisions; or
narrowing the application of those provisions to language that is abusive or threatening.
12.168 All states and territories have provisions that criminalise the use of offensive language in a public place. A person may receive an infringement notice for using offensive language from various issuing officers, including police—where the infringement notice is generally referred to as a Criminal Infringement Notice (CIN). Police can issue CINs for offensive language in all states and territories except SA, Tasmania and the ACT, where the matter must go before the court. In the jurisdictions with CINs, there remains an option for police to arrest or issue a court attendance notice for the matter to go before the court.
12.169 CINs are a relatively new form of infringement notice. For example, NSW introduced CINs in 2004, and WA introduced CINs in 2016.
12.170 The penalty amount for offensive language CINs ranges from $110 in Queensland to $500 in NSW and WA. When appearing in court, the maximum fine ranges from $660 in NSW to $6,000 in WA, with the majority of jurisdictions having maximum fines of approximately $1,000. A sentence of imprisonment can also be imposed in all jurisdictions except NSW and WA.
The impact on Aboriginal and Torres Strait Islander peoples
12.171 Aboriginal and Torres Strait Islander people remain over-represented as recipients of offensive language CINs. For example, the NSW Ombudsman found that 11% of CINs for offensive language in 2008 were issued to Aboriginal and Torres Strait Islander people. More recently, it was reported that the proportion had risen to 17%. This can have a significant impact. According to the NSW Ombudsman, 89% of Aboriginal and Torres Strait Islander people issued with a CIN failed to pay on time and were referred to SDR for enforcement. By comparison, 48% of all CIN penalty notices were referred for enforcement.
12.172 Professor Tamara Walsh submitted that Aboriginal people in Queensland are up to 12 times more likely to be charged with or receive infringement notices for public nuisance than non-Indigenous people. In most cases, offensive language was directed at police officers. Where these matters were dealt with in the court, Aboriginal and Torres Strait Islander people were more likely to receive a custodial sentence.
12.173 The issues regarding offensive language provisions and how they are applied to Aboriginal and Torres Strait Islander people have been well ventilated. Primarily: most offensive language CINs are issued for language directed at police; and, if tested in court, may not meet the legal definition of ‘offensive’. Instead, under CINs, police are the ‘victim, enforcer and judge’ of the law, which provides strong foundation for conflict and misuse.
12.174 The RCIADIC recognised the role of offensive language provisions in incarcerating Aboriginal and Torres Strait Islander people, and recommended that offensive language provisions be monitored.
12.175 The high incidence of Aboriginal and Torres Strait Islander offensive language offending has been ascribed to the likelihood of Aboriginal and Torres Strait Islander people being out in public, amounting to an increased likelihood of police interaction. Aboriginal and Torres Strait Islander people are likely to be over-represented in areas of social disadvantage, including homelessness, mental health issues and lower education; and are more likely to be reliant on public services. This visibility means that there is a high likelihood of interaction with police, which can easily escalate.
12.176 It has also been reported that there is an acceptance of swear words in the vernacular of some Aboriginal and Torres Strait Islander communities. The use of swear words when interacting with police may be an expression of resistance to police but also may represent cultural differences in attitudes to swearing, where it may be more ‘routine’ in some Aboriginal communities. This may not always be the case. The NT Government suggested to this Inquiry that some Aboriginal communities welcome the criminalisation of offensive language:
A person’s right to feel safe in the community should not be compromised, and the lessening of community value standards through abolition of such offences could contribute to decreased social amenity. A recurring theme in Aboriginal communities as part of the NT Police community safety management process is the importance of a safe community, free from offensive language and disorderly behaviours. Community members often pose sanction options that should apply if people engage in offensive behaviour and the use of offensive language as Aboriginal communities state it is detrimental to the values they wish to uphold in their communities.
Offensive language provisions should be reviewed
12.177 Offensive language provisions have a particular history associated with Aboriginal and Torres Strait Islander peoples, and have wide application. There may be value in, if not abolishing relevant offensive language provisions, then narrowing their application.
12.178 Abolition may result in unintended consequences—it may leave police without a tool to manage some situations, and may even result in more serious charges being laid. It may therefore be most appropriate for states and territories to narrow the application of relevant provisions to language voiced in public which is threatening or abusive. This would remove the option for a person to be fined for telling police something was ‘none of their fucking business’, for example, but retain the option for police to issue CINs when threatened or abused. It may be, however, that certain threatening or abusive conduct is already proscribed by the criminal law in some states and territories, and that police can use move-on powers, intoxication, assault or inciting provisions when needed.
12.179 The ALRC suggests that states and territories evaluate their relevant offensive language provisions.
Options for reform
12.180 Stakeholders in this Inquiry expressed strong support for the abolition of all offensive language provisions. Stakeholders submitted that these provisions were disproportionately used and had a disproportionate effect on Aboriginal and Torres Strait Islander people.
12.181 Redfern Legal Centre supported abolition of the offence of offensive language, noting that ‘though ostensibly less serious than criminal proceedings, the consequences of receiving a CIN can be significant’. It argued that Aboriginal and Torres Strait Islander people are unlikely to request a review or elect to have a CIN dealt with by the court, even where it is likely that the offensive language will not satisfy the legal test. As a result, the ‘overwhelming majority’ of CINs issued to Aboriginal and Torres Strait Islander people for offensive language were not scrutinised by a court. In Redfern Legal Centre’s view, the CIN scheme had not met its stated aims of diverting people away from the criminal justice system: it instead involved them further through fine default and involved more people through net widening.
12.182 The ALSWA noted that, for many Aboriginal and Torres Strait Islander people, the penalty amount of $500 in WA would be ‘impossible to pay’. Kimberly Community Legal Services argued that for ‘Aboriginal people, the homeless and other disadvantaged groups the imposition of such a fine is tantamount to a prison sentence in WA’.
12.183 Some stakeholders considered offensive language provisions to be outmoded. The NSW Bar Association asserted that, not only are these types of provisions no longer needed, but that their continuing use ‘brings the law into disrepute’:
Historically, the offence has been used disproportionately against Aboriginal and Torres Strait Islander people, and it is likely to continue to be so used. There is no justification for its retention. Other existing laws provide protection from verbal threats and intimidation.
12.184 Short of abolition, there are other options by which to reduce the use of offensive language provisions. For example, the NSWLRC has previously recommended that if offensive language provisions were retained, the issuing of a CIN for these offences should be subject to mandatory review by a senior police officer. This approach garnered some support from stakeholders to this Inquiry. Redfern Legal Centre supported this with an additional requirement to examine and monitor usage on Aboriginal and Torres Strait Islander peoples. VALS/IWG suggested, however, that police oversight without any other mechanism may not be an effective measure to prevent the imposition of fines, especially multiple fines.
12.185 The YLCLC suggested that the NSW provision should also include a requirement that offensive language is used at a ‘time or in circumstances at which it was likely to be heard by a reasonable member of the public and it caused offence or was done in a manner likely to cause offence to a reasonable member of the public’. Professor Tamara Walsh suggested that, if retained, the threshold of ‘offensiveness’ set by the High Court in Coleman v Power (2004) should be spelt out within the relevant provisions—that is that offensive behaviour provisions were meant to protect the public from harms including disorder, violence, intimidation and serious affront.
12.186 The Law Society of WA suggested that offensive language should only be capable of criminal sanction where it forms part of a more serious set of circumstances giving rise to a breach of the peace. The Law Council of Australia suggested that only language that is so ‘grossly offensive as to amount to vilification or intimation’ ought to be criminalised.
The reforms of this chapter
12.187 Offensive language CINs provide an example of how fine systems can operate in a way that disproportionately affects Aboriginal and Torres Strait Islander people. The ALRC has heard of people receiving multiple infringement notices for swearing more than once in the same transaction. Swearing need not be abusive or threatening, and can be a consequence of everyday vernacular. The large penalty amounts render offensive language CINs difficult to pay, and are likely to result in the offender entering the fine enforcement regime. It some jurisdictions it can result in prison.
12.188 The recommendations in this chapter aim to circumscribe the effects of such provisions. Under these, the issuing officer would be directed to recognise circumstances when the imposition of a formal caution is more appropriate. Police in SA can issue a caution to adults for offensive language offending, including for swearing at police. Cautioning is particularly appropriate to offensive language offending, which is more often than not a ‘victimless crime’.
12.189 When cautioning is not appropriate, or has not been effective, the recommendations of this chapter would provide that the monetary penalty attached to a fine for offensive language be decreased to a more manageable amount. Offensive language CINs carry high penalties. As noted above, an imposition of a $500 fine on many Aboriginal and Torres Strait Islander people is insurmountable, and is likely to cause a person to enter the fine enforcement regime.
12.190 Under the recommendations in this chapter, when unable to pay the decreased amount, the offender could opt to pay the fine via a WDO.
12.191 This mitigation would apply to other types of offending that lead to the issuing of infringement notices or CINs. For example, in 2014, the NSW Ombudsman noted that Aboriginal and Torres Strait Islander peoples were particularly affected by the issuing of CINs for the offence of ‘continuation of intoxicated and disorderly behaviour following move on direction’. The Ombudsman reported that, of the 484 fines or charges issued for this offence during the review period, 31% (150) were issued to Aboriginal people. Stakeholders to this Inquiry also pointed to alcohol, begging offences, and move-on powers as problematic provisions for Aboriginal and Torres Strait Islander peoples.
12.192 Nonetheless, as offensive language provisions particularly affect Aboriginal and Torres Strait Islander people, the ALRC recommends state and territory governments review the relevant statutes with a view to repealing or narrowing the application of the provisions.