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Time to define 'the cornerstone of public order legislation': the elements of offensive conduct and language under the Summary Offences Act 1988 (NSW)

Journal Article


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Abstract


  • 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).

Publication Date


  • 2013

Citation


  • 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.

Ro Full-text Url


  • http://ro.uow.edu.au/cgi/viewcontent.cgi?article=1936&context=lhapapers&unstamped=1

Ro Metadata Url


  • http://ro.uow.edu.au/lhapapers/931

Number Of Pages


  • 28

Start Page


  • 534

End Page


  • 562

Volume


  • 36

Issue


  • 2

Place Of Publication


  • Australia

Abstract


  • 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).

Publication Date


  • 2013

Citation


  • 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.

Ro Full-text Url


  • http://ro.uow.edu.au/cgi/viewcontent.cgi?article=1936&context=lhapapers&unstamped=1

Ro Metadata Url


  • http://ro.uow.edu.au/lhapapers/931

Number Of Pages


  • 28

Start Page


  • 534

End Page


  • 562

Volume


  • 36

Issue


  • 2

Place Of Publication


  • Australia