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Turning the spotlight on 'offensiveness' as a basis for criminal liability

Journal Article


Abstract


  • 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.

Publication Date


  • 2014

Citation


  • McNamara, L. & Quilter, J. (2014). Turning the spotlight on 'offensiveness' as a basis for criminal liability. Alternative Law Journal , 39 (1), 32-35.

Ro Metadata Url


  • http://ro.uow.edu.au/lhapapers/1213

Number Of Pages


  • 3

Start Page


  • 32

End Page


  • 35

Volume


  • 39

Issue


  • 1

Place Of Publication


  • Australia

Abstract


  • 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.

Publication Date


  • 2014

Citation


  • McNamara, L. & Quilter, J. (2014). Turning the spotlight on 'offensiveness' as a basis for criminal liability. Alternative Law Journal , 39 (1), 32-35.

Ro Metadata Url


  • http://ro.uow.edu.au/lhapapers/1213

Number Of Pages


  • 3

Start Page


  • 32

End Page


  • 35

Volume


  • 39

Issue


  • 1

Place Of Publication


  • Australia