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).