Publication Details

Quilter, J. Ann. and 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.

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UNSW Law Journal

Additional Publication Information

Permission granted for a copy of the article to be included in your institutional repository, provided the official PDF (available on our website) is used for this purpose. (08 Sept.2014)


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