Turning the spotlight on 'offensiveness' as a basis for criminal liability
Offensiveness as a basis for legal liability in Australia is not new, but it was the subject of unprecedented scrutiny in the wake of the release of the former Labor government’s Human Rights and Anti-Discrimination Bill in November 2012. But if the 2012 Bill generated such anxiety because it contemplated treating offensive comments as a form of discrimination and therefore a civil wrong, why is there not even greater anxiety about the presence on our statute books of laws that expose people to criminal sanctions based on the same standard? For example, under s 4A of the Summary Offences Act 1988 (NSW), ‘A person must not use offensive language in or near, or within hearing from, a public place or a school.’ Comparable laws are on the books in every Australian state and territory.1 The aims of this article are to draw attention to a major blind spot in the recent Australian debate about offensiveness as a basis for legal liability, and to address an important law and policy question: is there any longer a place in Australia for laws that criminalise public conduct or language that is deemed to be offensive? Although it stopped short of formally reaching this conclusion, a recent report of the NSW Law Reform Commission (‘NSWLRC’)2 catalogues compelling evidence that the answer is: no.