NSW Offensive Language Laws and Impact on Aboriginal and Torres Strait Islanders

Introduction

“The cornerstone of public order legislation is usually a provision that permits police to act where the behaviour in a public place is regarded as offensive, insulting, abusive or indecent”.^[1] The use of offensive language in public in NSW still remains a punishable offence under the law.^[2] These charges still contribute a large amount of criminal charges in NSW. Because of the current provision, the legitimacy and acceptance by the public and those it affects, is a great challenge in balancing concerns for public safety and tolerance for ‘offensive behaviour’.^[3] The theoretical framework, suggested by German philosopher Jürgen Habermans,^[4] analyses this legitimacy of the law in contemporary society, to the extent to which the law’s ideals and norms are matched by the reality of its application.^[5] As such throughout history, a recurring concept around public order legislation is its contribution to incarceration of Aboriginal and Torres Strait Islander people.^[6] The inequality of the law’s operation in it’s inappropriate punishment of Aboriginal people for their use of offensive language, and it’s failure to punish remarks at them highlights the need as recommended by the Australian Law Reform Commision (ALRC) for the offence to be repealed. The current law, fails to protect Aboriginal and Torres Strait Islander people in New South Wales and through the theoretical framework, links back to the legitimacy and current operations of the law. The main objective of this essay is to highlight the effect of the NSW offensive language provision with a focus on Aboriginal and Torres Strait Islander people, providing overview of the elements of the NSW offence of offensive language.

Elements of the NSW offence of offensive language

To firstly address the application of the NSW offence of offensive language, its significant to highlight the elements. J Quilter and L McNamara’s article “Time to define ‘the cornerstone of public order legislation’: The elements of offensive conduct and language under the summary offences Act 1988 (NSW)”,^[7] draws attention to the decision in He Kaw Teh v The Queen,^[8] to lay out the method for construing the elements of a statutory offence and employing an approach similarly adopted by the theoretical framework, to produce an interpretation of the elements of s4A of the Summary Offences Act 1988 (NSW).^[9] Firstly is significant in providing precision in identifying the elements of the NSW offence of offensive language. Secondly it not only outlines the relevant Actus reus and mens rea, according to the article, it suggests how the elements should be construed.^[10] Brennan J in He Kaw Teh,  emphasises that offensiveness is an essential precondition of the act, noting that the actus reus may be broken into three key parts; the physical act and two circumstance components. He elaborates“the circumstance of ‘offensive’ is integral to the act”,^[11] demonstrating how actus reus of the offences defined under section 4 and 4A to be: language or conduct; offensive and; in proximity of a public place. Although simple, in the absence of judicial guidance in NSW, and provided the conflicting nature of provisions, it’s in our interpretation of the corresponding mens rea elements that follows. As expressed in Jeffs v Graham,^[12] “there must be an intention to perform the act and or conduct.”^[13] Assuming all other elements are satisfied, and provided their was intent, such components can be regarded as criminal in character.^[14] While it may point towards presumptions, the utility test as Brennan J suggests, it goes beyond the general fairness in the operation of law.^[15] As such these elements provide a justifiable and appropriate conclusion in relation to crimes of offensive conduct and offensive language.

Application of the NSW offence and its contribution to the criminalisation of Aboriginal and Torres Strait Islander People

Accordingly, as the elements have been addressed, its significant to discuss the application of the NSW offence of offensive language focusing on the significant impact of such laws on Aboriginal people. Under section 9 of the Summary Offences Act 1970 (NSW),^[16] it made great use of “unseemly words”,^[17] within or near public places an offence. Defined as “obscene, indecent, profane, threatening, abusive or insulting words”, this combined to s 4 of “threatening, abusive or insulting” language. This section was introduced due to police being given greater discretionary power to permit them to “take account of the changing norms and social values within society and to be selective in enforcing minor offences”.^[18] With increased discretionary power, it subsequently saw the norms of society multiple, placing a greater emphasis on the laws protection of “traditional rights and liberties”.^[19] To suggest the operations of law was effective in achieving in the preservation of traditional rights and liberties is beyond contemplation, portraying the disproportionate enforcement of the act in against Aboriginal and Torres Strait Islander people. According to the study of street offences by Aborigines in 1982, the Anti-Discrimination Board found evidence of over-represenation of Aboriginal people particularly in lower sociocultural areas.^[20]  Further investigation showed that such ‘unseemly words’ equivalent to contemporary statute in section 4A of the Summary Offences Act 1988 (NSW),^[21] accounted for 61 percent of offences with two thirds of cases involving liquor as a factor. As Brown digressed,  this pattern of overrepresentation of Aboriginal people largely in relation to charges of offensive language was discriminatory as even though illustrated  from an 1979 study, it established that p eople of white colourused the term ‘fuck’ more frequently in public, but it was Aborigines who were charged more.^[22] Although such studies run unparallel to the result, police reports suggested that this increased criminalization of Aborigines was due to “the principal distinguishing feature of the majority of incidents…excessive alcohol consumption and/or interpersonal conflict of some kind,”^[23] linking closely to police’s confrontation as well as Aboriginal and Torres Strait Islander people’s cultural displacement. According to Haberman’s theoretical framework, this law undermined the legitimacy of its purpose, providing it was used in an inequitable way in against Aboriginal people. Provided that there was a need for change, the legislation was changed and amended in 1988 and 1993, placing greater emphasis on the need to address Abroginal people with “care and responsibility”.^[24] However, from its inception, it was justified that such incorporated notions were not matched by reality. The enforcement of the law continued to impact Aboriginals in three indictable measures; the rate at which they were incarcerated; the large amount of charges were due to the result of confrontation initiated by the police and;^[25] the incidence of greater offence. This is demonstrated through the infamous case of 1990 of Stutsel v Reid,^[26]where it was concluded that police practice of initiating confrontation is a source of discontent, and lack of empathy and drive to promote substantive equality before the law. As punishment has been reduced to penalties, in practice it’s evident that the offence continues to lead to criminalization, an outcome that completely goes in juxtaposition of its intended aim.

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Assessment of two reform options

The ALRC has strongly recommended repealing the provision and or narrowing the application of it, in what is a most needed change for the divergence created between the intention and operation of the law with contemporary society and minority groups.

Repealing the provision

In accordance to the ALRC Report 133,^[27] the offensive language provision should be abolished as these provisions “were disproportionately used and had a disproportionate effect on Aboriginal and Torres Strait Islander people”.^[28] Applied to NSW, it is argued in many respects that these provisions not only criminalise Aboriginal and Torres Strait Islander people but fail to criminalise those who make remarks at them, showing as a result the ‘overwhelming majority’ of issues being contributed from the influence of police powers when dealing with these offences. Reasoning extends further to the law’s lack of cultural invitation, disregarding Aboriginal and Torres Strait Islander people’s dispossession and assimilation that deprived them of freedom and liberty,^[29] even though similarly laws such as the Aborigines Protection Act 1909 were enforced to preserve such matters. Despite evidence for abolition of the NSW offence, repealing the provision as suggested by the report may result in police’s lack of power to control situations and further increase the rates of more serious charges. Although it can be argued that repealing this provision may result in the lack of stability due to no fines, it can be said that proscribed criminals law will be enforced more harshly to lessen the burden of violence and promote justice reinvestment, with an aim towards prevention and support.

Narrowing the application of those provisions

The ALRC besides repealing the provision suggested to narrow its application to language that is abusive or threatening. By doing such reformation, Judge Matthew Myers suggest that’ll “reduce incarceration and greater support for Aboriginal and Torres Strait Islander people in contact with the criminal justice system”.^[30] Due to the intergenerational trauma that has impacted all aboriginal families and communities, it can be said that by narrowing the application, does not equate to addressing the issue of aboriginal’s need for a “holistic and life-span approach”.^[31] Although it’ll place greater focus on the care and responsibility of police powers, it does raise concern to the long controversy that still surrounds the over criminalization of Aboriginal people, highlighting the need for further investigation as a matter of urgency.

Conclusion

Concluding, it can be said that the legitimacy of the law based around the theoretical framework is undermined by it’s failure to address its aim and purpose. Whether they may be justifiable reasons to maintain the law, it is more so, unprecedented that the offensive language law not fall under any scrutiny or revistiation due to acknowledging the history based.

Bibliography

A Journal/Article/Book

• David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of
• New South Wales (Federation Press, 6 th ed, 2015) 519-540.
• J Quilter and L McNamara, “Time to define ‘the cornerstone of public order legislation’: The elements of offensive conduct and language under the summary offences Act 1988 (NSW)” (2013) 36(2) UNSWLJ 534.
• Joanne Lennan, ‘The “Janus Faces” of offensive language laws, 1970-2005’ (2006) 8 UTS Law review 118-134.
• Jurgen Habermas, Between Facts and Nonns: Contributions to a Discourse Theory of Law and Democracy (1996) 129.
• New South Wales Anti-Discrimination Board, Study of Street Offences by Aborigines (1982) 42.
• Sanderson, Jay and Kim Kelly, A Practical Guide to Legal Research (Lawbook, 2014).

B Cases

• Coleman v Power (2004) 220 CLR 1, 33 [36].
• He Kaw Teh v The Queen (1985) 157 CLR 523.
• Jeffs v Graham (1987) 8 NSWLR 292.
• Stutsel v Reid (1990) 20 NSWLR 661.

C Legislation

• Offences in Public Places Act 1979 (NSW).
• Summary Offences Act 1970 (NSW) s9.
• Summary Offences Act 1988 (NSW) s4A.
• Summary Offences Act 1988 (NSW) s 4(b).

D Treaties

E Others

• Australian Law Reform Commission, Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Report No 133, December 2017).
• MO Tubbs, From Penal Colony to Summary Penalty, An Historical Anatomy of an Offensive Act: The Summary Offences Act 1970, No 96 (NSW) (Thesis, Macquarie University. 1979).
• National Family Violence Prevention Legal Services, Submission 77.
• NSW Bureau of Crime Statistics and Research 1994, New South Wales Recorded Crime Statistics 1993, NSW Bureau of Crime Statistics and Research, Sydney.
• NSW Bar Association, Submission 88.
• New South Wales, Parliamentary Debates, Legislative Assembly, 31 May 1988, 804.
• University of Sydney, Referencing and Citation Styles: AGLC4 (2019)
• < https://libguides.library.usyd.edu.au/c.php?g=508212&p=3476376 >.

^[1] David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (Federation Press, 6 th ed, 2015)518.

^[2] Summary Offences Act 1988 (NSW) s 4(b).

^[3] David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (Federation Press, 6 th ed, 2015)518.

^[4] Jurgen Habermas, Between Facts and Nonns: Contributions to a Discourse Theory of Law and Democracy (1996) 129.

^[5] Ibid.

^[6] David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (Federation Press, 6 th ed, 2015)533.

^[7] J Quilter and L McNamara, “Time to define ‘the cornerstone of public order legislation’: The elements of offensive conduct and language under the summary offences Act 1988 (NSW)” (2013) 36(2) UNSWLJ 534.

^[8] He Kaw Teh v The Queen (1985) 157 CLR 523.

^[9] Summary Offences Act 1988 (NSW) s4A.

^[10] He Kaw Teh v The Queen (1985) 157 CLR 523.

^[11] Ibid.

^[12]Jeffs v Graham (1987) 8 NSWLR 292.

^[13] Ibid.

^[14] He Kaw Teh v The Queen (1985) 157 CLR 523.

^[15] Ibid.

^[16] Summary Offences Act 1970 (NSW) s9.

^[17] Ibid.

^[18] MO Tubbs, From Penal Colony to Summary Penalty, An Historical Anatomy of an Offensive Act: The Summary Offences Act 1970, No 96 (NSW) (Thesis, Macquarie University. 1979).

^[19] Ibid.

^[20] New South Wales Anti-Discrimination Board, Study of Street Offences by Aborigines (1982) 42.

^[21] Summary Offences Act 1988 (NSW) s4A.

^[22] Offences in Public Places Act 1979 (NSW).

^[23]  J Quilter and L McNamara, “Time to define ‘the cornerstone of public order legislation’: The elements of offensive conduct and language under the summary offences Act 1988 (NSW)” (2013) 36(2) UNSWLJ 534.

^[24] New South Wales, Parliamentary Debates, Legislative Assembly, 31 May 1988, 804.

^[25]  J Quilter and L McNamara, “Time to define ‘the cornerstone of public order legislation’: The elements of offensive conduct and language under the summary offences Act 1988 (NSW)” (2013) 36(2) UNSWLJ 534.

^[26] Stutsel v Reid (1990) 20 NSWLR 661.

^[27] Australian Law Reform Commission, Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Report No 133, December 2017).

^[28] See, eg, NSW Bar Association, Submission 88.

^[29] Coleman v Power (2004) 220 CLR 1, 33 [36].

^[30]  Australian Law Reform Commission, Pathways to Justice–Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples (Report No 133, December 2017).

^[31] National Family Violence Prevention Legal Services, Submission 77.