Public nuisance, race and gender

ABSTRACT

It is well established that Indigenous people are significantly over-represented amongst those charged for using offensive language, often because they have directed an (offensive) accusation of racism at a police officer. In this paper, statistical information and reported appeal decisions concerning Indigenous people who have been charged with public nuisance in Queensland are examined and analysed. The statistics presented in this paper indicate that Indigenous people, and particularly Indigenous young people, are over-represented amongst those who are charged for using offensive language directed at a police officer. The analysis of reported public nuisance cases involving Indigenous people reveals that, in respect of Indigenous women, offensive language directed at police officers is actually rich in meaning, and reflects their feelings of powerlessness and marginalisation. It is concluded that such language should not form the basis for a criminal charge.

KEYWORDS:

• public nuisance
• Indigenous
• aboriginal
• women
• young people
• offensive language

Acknowledgements

The author wishes to thank Daniel Trigger and Angus Fraser for their excellent research assistance.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Associate Professor Tamara Walsh has degrees in both Law and Social Work, and her interest is in social welfare law. Her research studies examine the impact of the law on vulnerable people including children and young people, people experiencing homelessness, people on low incomes, people with disabilities, mothers and carers. Most of her studies are sociolegal and empirical in nature, and she draws on human rights discourse and social exclusion theory to explore the influence that the law has on complex social problems. Her research has been widely published, both in Australia and internationally. She undertakes pro bono legal practice in the area of child protection, and she lectures in human rights law and constitutional law.

ORCID

Tamara Walsh http://orcid.org/0000-0003-4119-3550

Notes

1 Commonwealth, Parliamentary Debates, Senate, 24 March 2014, 1797, 1798 (Senator George Brandis).

2 Crimes Act 1900 (ACT) s 392; Summary Offences Act 1988 (NSW) s 4A; Summary Offences Act 1923 (NT) s 47; Summary Offences Act 2005 (Qld) s 6; Summary Offences Act 1953 (SA) ss 7, 22; Police Offences Act 1935 (Tas) ss 12, 13; Summary Offences Act 1966 (Vic) s 17; Criminal Code (WA) s 74A. As to the reasonable person test in the context of offensive language laws, see Ball v McIntyre (1966) 9 FLR 237, 245.

3 Victorian Crime Statistics Agency, Data Tables – Recorded Offences, Table 1. Offences recorded by offence categories January 2011 to December 2015, available at http://www.crimestatistics.vic.gov.au (accessed 19 May 2016).

4 NSW Bureau of Crime Statistics and Research (2015).

5 Statistics obtained from the Queensland Police Service, Statistical Services Division.

6 See particularly Commonwealth Parliamentary Joint Committee on Human Rights (2017) at pp 18–29; Racial Discrimination Amendment Bill 2016 (Cth); Sackville (2016).

7 For an analysis of the meanings of ‘offensive’, ‘insult’, ‘obscene’ and ‘disorderly’ in the context of offensive behaviour provisions, see Walsh (2005) at pp 131–132.

8 Note that Queensland did remove the word ‘insult’ from its offensive language provision in 2003, fearing that the previous wording might be held unconstitutional by the High Court in Coleman v Power (2004) 220 CLR 1: see Police Powers and Responsibilities and Other Legislation Amendment Bill 2003 (Qld). In fact, the majority of the High Court in that case upheld the wording of the section (McHugh J dissenting).

9 Crimes Act 1900 (ACT) s 392; Summary Offences Act 1988 (NSW) s 4A; Summary Offences Act 1923 (NT) s 47; Summary Offences Act 2005 (Qld) s 6; Summary Offences Act 1953 (SA) ss 7, 22; Police Offences Act 1935 (Tas) ss 12, 13; Summary Offences Act 1966 (Vic) s 17; Criminal Code (WA) s 74A.

10 Coleman v Power (2004) 220 CLR 1. In fact, in that case the old ‘obscene, abusive language etc.’ offence was held, by majority, to be valid (McHugh J dissenting). See also Douglas (2005); Stone and Evans (2006).

11 Summary Offences Act 2005 (Qld), s 6(2).

12 Summary Offences Act 2005 (Qld), s 6(3).

13 Summary Offences Act 2005 (Qld), s 6(4).

14 For example, in one court observation study, only one in five public nuisance matters featured a complainant other than a police officer: see Walsh (2016) at p 64. See also McNamara and Quilter (2014) at p 38.

15 The vast majority (95 per cent) of these cases are heard in the Magistrates Courts. The remaining 5 per cent are heard in the Children’s Court (Magistrates Division), the Children’s Court of Queensland, the District Court and the Supreme Court.

16 Past research has indicated that public nuisance charges are commonly imposed for relatively trivial behaviours, such as shouting or swearing (often at police officers), drunk and disorderly behaviour, and random behaviours associated with mental illness: Walsh (2016).

17 Statistics obtained from the Queensland Department of Justice and Attorney-General, and the Queensland Police Service, Statistical Services Division. See further Tables 1 and 3. Note that offensive language is only one category of public nuisance charge. Others include disorderly, threatening and violent behaviour: see Summary Offences Act 2005 (Qld) s 6.

18 Walsh (2016) at pp 64–65; Walsh (2006) at p 203.

19 Note that no equivalent breakdown by ‘public nuisance category’ is available for the court statistics.

20 Australian Institute of Criminology (2011). Women are more likely to commit property offences and breaches of court orders: Australian Institute of Criminology (2013).

21 Note that intensive corrections orders, disqualification orders and acquittals have not been included because the numbers were too small to indicate any trend: indeed, between 2011 and 2014, there were no acquittals at all.

22 Australian Institute of Criminology (2011). Women are more likely to commit property offences and breaches of court orders: Australian Institute of Criminology (2013).

23 Queensland Office of Economic and Statistical Research (2012) at p 1.

24 For example, in 2014, 2592 public nuisance infringement notices were issued to Indigenous women (10.9 per cent).

25 These figures aggregate the adult and children’s court data.

26 Another way of obtaining information on the nature of public nuisance offending is to undertake court observation: see Walsh (2016); Walsh (2005).

27 Butterworth v Geddes [2005] QDC 333; Couchy v Birchley [2005] QDC 334; Dowling v Robinson [2005] QDC 171; Green v Ashton [2006] QDC 8; Guy v McLoughlin [2006] QDC 17; Kris v Tramacchi [2006] QDC 35; Courtney v Thompson [2007] QCA 49; Dart v Jacklin [2007] QDC 371; JMP v Crown [2007] QDC 256; Parsons v Raby [2007] QCA 98; Wilson v Kite [2007] QDC 249; Andrews v Rockley [2008] QDC 104; Courtney v Peacock [2008] QDC 87; R v Coutts [2008] QCA 380; Baker v QPS [2009] QDC 245; Hess v McKeown [2009] QDC 302; Hills v QPS [2009] QDC 89; Ongart v Commissioner of Police [2009] QDC 289; Sobieralski v Commissioner of Police [2009] QCA 90; Atkinson v Gibson [2010] QCA 279; Atkinson v Gibson [2010] QDC 10; Mbuzi v Hornby [2010] QCA 186; R v Mathews [2010] QCA 196; Collins v Lancaster [2011] QDC 35; Boyd v Forbes [2012] QDC 198; Mackie v QPS [2012] QDC 369; Moore v QPS [2012] QDC 133; R v Shaw [2012] QCA 304; Vale v Wilkinson [2012] QDC 109; R v Brown [2013] QCA 185; Brandon v Commissioner of Police [2014] QDC 88; JKT v QPS [2014] QDC 298; QPS v Terare [2014] QCA 260; R v Devlyn [2014] QCA 96; R v Presgrave [2014] QCA 105; Commissioner of Police v Watmough [2015] QDC 46; Mbuzi v Commissioner of Police [2015] QDC 257; Weston v Commissioner of Police [2015] QDC 221; Brase v QPS [2016] QDC 24; Maloney v Commissioner of Police [2016] QDC 191; Sam v QPS [2016] QDC 184.

28 Atkinson v Gibson [2010] QCA 279 and [2010] QDC 10.

29 Mazerolle et al (2010) at p 120. Similarly, the NSW Ombudsman has reported that only 2.6 per cent of CINs were challenged in the NSW courts during their 2002 trial: NSW Ombudsman (2005) at p 95.

30 As to the high rate of guilty pleas for public nuisance offences, see Walsh (2016) at p 65 (100 per cent in that sample).

31 Queensland Crime and Misconduct Commission (2008) at pp 96–97.

32 See generally Quilter and McNamara (2013).

33 It is likely that some of the other appeals concerned Aboriginal offenders but their race was not mentioned in the judgment. However, where the indigeneity of the offender could not be confirmed, the case has not been included in the analysis.

34 Queensland Police Service v Terare [2014] QCA 260; JKT v Queensland Police Service [2014] QDC 298; R v Brown [2013] QCA 185; Atkinson v Gibson [2010] QCA 279 and [2010] QDC 10; Hess v McKeown [2009] QDC 302; Baker v Queensland Police Service [2009] QDC 245; Hills v Queensland Police Service [2009] QDC 89; Wilson v Kite [2007] QDC 249; Green v Ashton [2006] QDC 8; Kris v Tramacchi [2006] QDC 35; Couchy v Birchley [2005] QDC 334.

35 Queensland Police Service v Terare [2014] QCA 260; JKT v Queensland Police Service [2014] QDC 298; R v Brown [2013] QCA 185; Baker v Queensland Police Service [2009] QDC 245; Hills v Queensland Police Service [2009] QDC 89; Wilson v Kite [2007] QDC 249; Kris v Tramacchi [2006] QDC 35; Couchy v Birchley [2005] QDC 334. As to public drunkenness and public order offending, see further McNamara and Quilter (2015). As to alcohol use amongst Aboriginal offenders, see Anthony (2013) at pp 149–151, 155–157; Weatherburn (2008).

36 R v Brown [2013] QCA 185; Hess v McKeown [2009] QDC 302; Baker v Queensland Police Service [2009] QDC 245; Hills v Queensland Police Service [2009] QDC 89; Green v Ashton [2006] QDC 8; Kris v Tramacchi [2006] QDC 35; Couchy v Birchley [2005] QDC 334.

37 An analysis of all public nuisance appeal cases between 2004 and 2014, including both Indigenous and non-Indigenous defendants, is presented in Walsh (2016) p 59.

38 Walsh (2016) at p 66.

39 R v Brown [2013] QCA 185; Hess v McKeown [2009] QDC 302; Hills v Queensland Police Service [2009] QDC 89; Green v Ashton [2006] QDC 8; Kris v Tramacchi [2006] QDC 35; Couchy v Birchley [2005] QDC 334.

40 Green v Ashton [2006] QDC 8.

41 Green v Ashton [2006] QDC 8 at [9].

42 Green v Ashton [2006] QDC 8 at [9].

43 Kris v Tramacchi [2006] QDC 35.

44 Kris v Tramacchi [2006] QDC 35 at [8].

45 R v Brown [2013] QCA 185.

46 R v Brown [2013] QCA 185 at [2].

47 A formal complaint was made by Mr Gibson against the police officer: ‘Police brutality claims bound for Qld commission’, Koori Mail, 10 February 2010, 4.

48 Hess v McKeown [2009] QDC 302. This offender was male.

49 ‘Disorderly’ behaviour has been defined by the courts as being that which amounts to ‘a substantial breach of decorum which tends to disturb the peace or to interfere with the comfort of other people’: Barrington v Austin and Others [1939] SASR 130 at 132; recently affirmed in Mbuzi v Commissioner of Queensland Police [2015] QDC 257.

50 JKT v Queensland Police Service [2014] QDC 298 at [15].

51 Wilson v Kite [2007] QDC 249 at [8].

52 Baker v Queensland Police Service [2009] QDC 245 at [17].

53 See particularly Quilter and McNamara (2013); Lennan (2006); Walsh (2005).

54 Anti-Discrimination Board of NSW (1982) at pp 113–114 where the Board concluded:

‘[T]here are clear indications that “over-policing” of Aboriginal communities is occurring … the Aboriginal community has limited access to private space and is subjected to a greater degree of supervision over their lives and lifestyles. This is wholly disproportionate to that experienced by any groups in the non-Aboriginal community and occurs in the most intimate parts of their lives.’

55 Kerr (1983) at p 38; Jochelson (1997).

56 Johnston (1991) at [7.1.8].

57 Recommendation 60.

58 Recommendation 86.

59 Cunneen (1999).

60 NSW Ombudsman (2005) at p 36; NSW Ombudsman (2010) at p 35.

61 Queensland Crime and Misconduct Commission (now Crime and Corruption Commission) (2008) at pp 116–117.

62 White (2002) at p 21. See also Anthony (2013) at p 50.

63 White (2002) at pp 23–24.

64 Cunneen (2008) at pp 44–45; Chan and Cunneen (2001); Cunneen and White (2007).

65 Cunneen (2008) at pp 44–45; Chan and Cunneen (2001).

66 White (2002) at p 31; Feerick (2004).

67 This was noted by the Royal Commission into Aboriginal Deaths in Custody: Wootten (1990, 1991). See also Jochelson (1997); Sarre and Sparrow (2002) at p 56; Anthony (2013) at p 50.

68 Court observation studies conducted in Queensland have confirmed this: see Walsh (2005) at p 143. See also NSW Law Reform Commission (2012) at pp 300, 302.

69 Anthony (2010); Bartels (2012).

70 This is consistent with previous research: see, for example, Bartels (2010).

71 Senate Committee on Regional and Remote Indigenous Communities (2010) at p 37; Snowball and Weatherburn (2006) at pp 2, 14.

72 Cunneen (2007) at p 42.

73 Cunneen (2007) at p 42.

74 Walsh (2016) at p 60.

75 Queensland Crime and Misconduct Commission (2008) at p 48.

76 Queensland Crime and Misconduct Commission (2008) at p 48.

77 See generally Anthony (2013) at Chapter 6. See also Chan and Cunneen (2001) at p 324.

78 Chan and Cunneen (2001) at p 324. See also Cunneen (2001) at p 165.

79 This is not the first time the over-representation of Aboriginal women in offensive language charges has been identified: see Chan and Cunneen (2001) at p 212.

80 Chan and Cunneen (2001) at p 212. See also Stubbs (2011) at p 50.

81 R v Brown [2013] QCA 185, [2].

82 Green v Ashton [2006] QDC 8, [9].

83 Kris v Tramacchi [2006] QDC 35, [8].

84 Couchy v Birchley [2005] QDC 334, [5].

85 McCullough (2014).

86 McCullough (2014) at p 686.

87 McCullough’s piece is based on a joke that was told to her by a Murri woman: ‘Then, in court, in that court room that Cape woman come in, she sit and that judge say “Tell me what happened to you in your own words?” So that Cape woman been say “Well my man been bashed me up. He hit me in the mouth, he been hit me in the susu (breasts), he been knock me down, he been kick me in the rib and then he been kick me in the … in the … Heeyyyy.” That woman turn to that solicitor, “What that flash (fancy) word for cunt?”’: (2014) at p 680.

88 McCullough (2014) at pp 680, 687.

89 McCullough (2014) at pp 691, 692.

90 As to constructions of ‘whiteness’ in the context of power imbalances between Aboriginal and non-Aboriginal people, see particularly Cowlishaw (2004) at pp 59, 60–62, 64–65; Flagg (1997) at pp 1–2, 8–9.

91 McCullough (2014) at p 686. Baldry and Cunneen agree, noting that the history of Indigenous women’s criminalisation, and recent increases in imprisonment rates of Indigenous women, are strongly influenced by ‘a pervasive and adaptable patriarchal colonialism’: (2014) at p 292.

92 See page 343 above.

93 R v Brown [2013] QCA 185, [2].

94 R v Brown [2013] QCA 185, [5], [7].

95 As to theories of ‘whiteness’ and oppression of Aboriginal women, see generally Moreton-Robinson (2005) at p 61.

96 See page 343 above.

97 Couchy v Birchley [2005] QDC 334 at [41].

98 Paul Wilson noted in the 1970s that Aboriginal English is characterised by a prolific use of swear words: see Wilson (1978).

99 Baldry and Cunneen (2014) at p 288.

100 Eades (2013) at p 103.

101 Heilpern (1999). See also Methven (2016); NSW Law Reform Commission (2012) at p 298. Indeed, it will be recalled that, in Atkinson v Gibson [2010] QDC 10, a witness gave evidence that he heard the police officer reply ‘Shut your fucking mouth or I’ll put you in gaol’: at [14]. For another case of offensive language used by a police officer, see Commissioner of Police v Anderson & Anor, Unreported, Supreme Court of NSW, 21 October 1996.

102 Coleman v Power (2004) 220 CLR 1, 26; Bradbury v Staines [2970] Qd R 76, 89; Connolly v Willis [1984] 1 NSWLR 373, 378; Pregeli and Wurramurra v Manison (1987) 51 NTR 1, 17; Nelson v Mathieson (2003) 143 A Crim R 148, 151.

103 McCullough (2014) at p 689. As to the different conceptions of civility of ‘white’ men and women of privilege, see Appleby and Naffine (2015).

104 As to the reasonable person test in offensive behaviour and offensive language cases, see Walsh (2005) at p 132.

105 Commonwealth, Parliamentary Debates, Senate, 24 March 2014, 1797, 1798 (Senator George Brandis)

106 Anti-Discrimination Board of NSW (1982).

107 See Del Vecchio v Couchy [2002] QCA 9.

108 See further Walsh (2016) and Walsh (2006).

109 Coleman v Power (2004) 220 CLR 1 at 99 (Kirby J). In that case, see also p 25 (per Gleeson CJ); pp 53–54 (per McHugh J); pp 76–77 (per Gummow and Hayne JJ).

Additional information

Funding

This work was supported by The University of Queensland.