Document Type

Journal Article

Publication Details

Quilter, J. Ann. & McNamara, L. J. (2013). Time to define ''the cornerstone of public order legislation'': the elements of offensive conduct and language under the Summary Offences Act 1988 (NSW). University of New South Wales Law Journal, 36 (2), 534-562.


This article addresses a contradiction that has long been at the heart of thecriminal law concerned with ‘public order’. Although crimes such as offensiveconduct and offensive language are amongst the most frequently prosecutedoffences in Australia, their legal nature is poorly understood and rarely the subjectof judicial scrutiny or academic explanation. In the context of ongoingcontroversy over whether such offences have a legitimate place on the statutebooks, we confront this oversight. This article draws on the High Court ofAustralia’s decision in He Kaw Teh v The Queen1 to lay out a methodology forconstruing the elements of a statutory offence, and then employs this approach toproduce a recommended interpretation of the elements of sections 4 and 4A of theSummary Offences Act 1988 (NSW).