Abstract
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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.