[This article contains coarse language]
Teenagers do it. Workmates do it. Your spouse does it. You do it. Hell, even your grandmother has probably dropped a swear word. We Australians have a bit of a reputation for crude language and blue humour, so considering that it is such a common way to express oneself, WTF is actually wrong with swearing?
Anti-swearing laws have been in effect since Roman times, however, the criminalisation of obscene, indecent or abusive language in Australia originates from Victorian times, where the use of profanity was considered too harsh for the delicate sensibilities of women and children.
While you would be forgiven for thinking this anti-swearing stance was an archaic and irrelevant remnant of the past, this is not the case. As recently as 2013, New South Wales police recorded more than 4,000 offensive language incidents. Every year thousands of dollars are amassed in fines for swearing in public, so it is important to know the law, so your potty-mouth doesn’t get you in trouble.
Although, swearing alone is not illegal, there are a number of factors that can make it a criminal offence. A person can be charged for swearing if they use obscene, threatening or offensive language where other people are present. Of course, what constitutes “offensive language” is constantly evolving, as what was offensive in the late ’80s, when these laws were enacted, would not be deemed offensive today.
What Is Classified As Offensive Language?
In a famous Victorian Supreme Court court case in 1951, offensive language was labelled generally as violent, threatening, disorderly or insulting language which is designed to generate feelings of anger, outrage, disgust or resentment in an ordinary and reasonable person from amongst the members of our community. Australian Courts have since added, “conduct which offends against the standards of good taste or good manners” to this definition.
It is likely you know the words and the phrases that could get you into hot water, but the important thing is knowing how to pick your audience. Be aware of what state you are in, as the swearing laws in New South Wales are different to the ones you will find in South Australia, for example. As they say, there is a time and place for everything.
What Is A Public Place?
This seems like a simple question, however, what constitutes a “public place” is quite ambiguous. As defined in the Summary Offences Act, it is considered a part of a premises which is open to the public or commonly used by the public either for a free or for a fee. Some examples of public places include streets, publicly funded buildings, schools, colleges, parks, recreational areas, railway stations, bus stops and public transport. The law specifically identifies schools as serious zero-tolerance zones when it comes to swearing in public, which does not come as much of a surprise.
Can You Swear At A Police Officer In Australia?
An individual who swears or uses indecent language in a public place is guilty of an offence.
A police offer is no different in this circumstance. You can receive an on the spot fine, be arrested and taken to the police station, go before a judge where you could face offensive language charges, be subject to community service, incur hefty financial penalties, and even face up to six months imprisonment.
What Are The Penalties For Swearing In Public?
The maximum penalty for using language that is deemed offensive in New South Wales and Western Australia is $660 and $500 respectively, while in South Australia, the laws are considerably harsher with the maximum penalty for using abusive language in public ringing in at $1,250 or three months’ imprisonment.
In Victoria and Queensland, swearing can be classified as “disorderly or violent” behaviour or even upgraded to “public nuisance” depending on the circumstances, which are crimes that carry a maximum penalty of up to six months of jail-time and hefty fines.
In Tasmania, this charge is fairly uncommon, due to shifting attitudes of “indecent” language, however the maximum penalty is also a three-month jail term and/or up to three penalty units (a penalty unit is $173, so you do the math). Use of “objectionable words in a public place” also carries fairly heavy monetary punishments in the Northern Territory, generally ranging from $100 to $500.
Offensive Language Law
Section 4A of the Summary Offences Act (1988) criminalises the use of bad language “in or near, or within hearing from, a public area or a school”. The maximum penalty for breaking this law varies from state to state, as mentioned above.
What Do I Do If I Am Charged?
If you are charged with using an offensive word, your first call should be to an experienced legal professional who can provide you with specific advice relating to the specific law and crime you have been charged with breaking. You do not want to go before a judge without consulting a lawyer.
Generally speaking, you can plead guilty, and cop the fine, or plead guilty and have your solicitor argue for a Section 10, which has the advantage of a reduced penalty and no record of your conviction. Otherwise, you can go to court and plead not guilty, if you believe you have a reasonable defence.
What The Police Must Prove
In law, the prosecution always have the burden of proof. For you to be successfully prosecuted with an offence and found guilty for offensive language, there must be proof that you have conducted yourself in a manner which goes against the standard of socially acceptable behaviour, and that you did so in, or within the hearing of a public area. If they do not possess this evidence, they will not take you before a judge.
How Do I Get Out Of An Offensive Language Charge?
Due to the subjective nature of language and loose terminology surrounding both language and public places, there are quite a few defences for charges related to offensive language, which include:
- Reasonable excuse. You can provide evidence or support that you had a reasonable excuse for using the language.
- Duress. You were unlawfully coerced into using bad language or behaviour that is out of character for you.
- Necessity. Similar, but not identical to reasonable excuse, this defence refers to if the use of language could be deemed necessary or unavoidable.
- Self defence. You can prove that your actions were directly related to you trying to avoid harm to yourself or others, to protect property or criminal trespass.
- Language. It is all a little vague, and as such there is also quite a lot of wiggle room surrounding the language itself, whether it was even said, how it was phrased and whether it is, in fact, objectionable.
If you find yourself in legal trouble, it is recommended to consult with a team of legal professionals before making any decisions.
What Do Critics Say
Critics have argued that the law is unfairly prejudiced against minority groups. For example, an intoxicated and homeless Indigenous woman in Queensland was sentenced to three weeks in prison for saying “you fucking cunt” to a female officer. Conversely, when a bunch of footballers in a pub joke around swearing, no one bats an eye – it is considered typical Australian banter, rather than a serious breach of offensive language laws.
Are We Really Protecting Our Children By Making Swearing Illegal?
Our laws were enacted under the premise that this kind of language was harmful to children, but according to Methven, research consistently shows that there is little impact from the use of swear words and that it appears to be more commonly unfairly wielded against indigenous Australians for alleged offensive conduct. There really is no point to criminalise the use of a bad word.
Have these laws reduced our use of profanity? Fuck no. Our legal system should be focusing on real statistically relevant harms, such as sexual assault and domestic violence. Instead of worrying about how people choose to express themselves.
In line with this, the NSW Law Reform Commission recently recommended that some of these language rules be abolished because although swearing may be upsetting, it should be decriminalised.