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

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).