A death sentence for swearing: the fatal consequences of the failure to decriminalise offensive language

ABSTRACT

Several commissions of inquiry have recommended the reform or abolition of laws that criminalise the use of offensive language in Australia. These criminal offences have been linked to the over-policing and deaths in custody of Indigenous Australians. Australian state and territory governments have not only ignored these recommendations; they have also added new weapons to the police officer’s arsenal to control and punish swearing in public. Through an analysis of several case studies sourced from coronial inquiries and the Royal Commission into Aboriginal Deaths in Custody, this article argues that there is a need for urgent reform of laws that criminalise offensive language.

KEYWORDS:

• Offensive language
• Indigenous Australians
• deaths in custody
• criminal law
• law reform
• commissions of inquiry

Acknowledgements

This article was written on the unceded land of the Gadigal and Wangal people of the Eora nation. The author is grateful to the anonymous reviewers, Phil Scraton, Eddie Cubillo and other participants of the UTS Roundtable on Royal Commissions for their feedback and observations in relation to earlier drafts of this article.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Wootten (1991).

2 Fogliani (2016); Porter (2016); ‘Shameful Statistics: Black Deaths in Custody’, The Law Report, ABC Radio, 12 April 2016 <https://www.abc.net.au/radionational/programs/lawreport/marking-25-years-since-rc-into-black-deaths-in-custody/7315132#transcript>; ‘CCTV Footage of Ms Dhu’s Final Hours Released by Coroner’, Australian Broadcasting Association, 16 December 2016, <https://www.abc.net.au/7.30/cctv-footage-of-ms-dhus-final-hours-released-by/8128676>.

3 See Porter (2016); Quilter and Hogg (2018); Blagg and Anthony (2019), pp 212–15; Galloway (2016); Whittaker (2018a). Whittaker remarks that despite hundreds of Indigenous deaths in custody since 1992, no public actor has been criminally convicted in relation to any of these deaths. She argues: ‘the absence of conviction for state actors is a consequence of an institutional and cultural vision that is structurally incapable of blame for Indigenous death. That institutional vision, while rightly focused on preventing future deaths, has lost its capacity to attend to the death itself and its inherent colonial violence’: Whittaker (2018a), pp 2–9.

4 Coroners courts in Australia have a mandatory jurisdiction to hold an inquest into any death in custody: Whittaker (2018a); Allingham and Collins (2008).

5 For a critical evaluation of the successes, failures and impact of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC), see Prasser (2006), pp 194–208; Whittaker (2018a).

6 A death in custody includes a death of a person that occurs while a person is not a liberty because they are being watched or guarded by police officers: Australian Human Rights Commission (1996).

7 See especially Whittaker (2018a); Whittaker (2018c); Porter (2016).

8 The use of a qualitative methodology avoids a heavy reliance on statistical ‘data’ which might allow the researcher to hide behind the cloak of ‘objectivity’, recognising that much settler colonial criminological and criminal law research relies on statistical ‘data’, which is ‘largely an artefact of subjective white interventions, decisions and recording practices, despite its representation to unambiguously and objectively reflect the reality of Indigenous offending or victimisation’: Blagg and Anthony (2019), p 99; see also Moreton-Robinson and Walter (2009).

9 Whittaker (2018b).

10 DPP v Orum [1989] 1 WLR 88 at 93 (Glidewell LJ).

11 The disorderly behaviour related to Ms Dhu swearing in a public place. The obstruction offence related to her waving her right finger in a police officer’s face and not moving away from him when warned to do so, and later making contact and attempting to break free. The assault was in respect of Ms Dhu kicking a police officer whilst being handcuffed: Fogliani (2016), p 144.

12 The component offences of the ‘trifecta’ (also colloquially referred to as the ‘ham, cheese and tomato’ or the ‘hamburger with the lot’) and the order in which the offences take place vary. The defendant charged with this combination of offences may be incentivised during pre-trial negotiations to plead guilty to the more minor offence(s) (invariably offensive language) so that the other charges will ‘go away’. The high number of guilty pleas for offensive language in turn contributes to a lack of judicial scrutiny of the facts which give rise to offensive language convictions, and the legal elements of these crimes: Australian Human Rights Commission (1996) at ch 6; Feerick (2004); House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs (1994) at p 222.

13 Blagg and Anthony (2019), p 212.

14 Fogliani (2016).

15 In addition, recommendation 120 asked governments to consider introducing an ongoing amnesty on the execution of outstanding warrants of commitment for unpaid fines. For further discussion, see: Porter (2016); Jordan et al (2018).

16 A WA government report found that from July 2006 to June 2015, Aboriginal women comprised 15 per cent of total prisoner receptions but 22 per cent of fine default receptions. Aboriginal women comprised 64 per cent of female fine defaulters: Western Australian Office of the Inspector of Custodial Services (2016) at p v.

17 Australian Law Reform Commission (ALRC) (2018) at p 389.

18 The amendments were introduced through the Fines, Penalties and Infringement Notices Enforcement Amendment Bill 2019 (WA).

19 Following other Australian jurisdictions, the legislation also introduced a scheme of ‘work and development permits’ as an alternative fines enforcement measure. In addition, new ‘fine expiation orders’ apply to offenders already in custody, allowing them to serve additional time to expiate their fine debt. For the cohort of persons who were already in prison for fine default alone, upon the day of royal assent to the legislation, outstanding balances were ‘wiped out’ and unserved warrants of commitment were cancelled. For fines recipients subject to unserved warrants of commitment, their fines remained to ‘be strictly enforced using the more just and effective fines enforcement regime,’ John Quigley, Attorney-General, Western Australia, Parliamentary Debates, Legislative Assembly, 26 September 2019, 7490a–7492a.

20 For further exploration of this issue, see Quilter and Hogg (2018).

21 Fogliani (2016), p 144; quoting Wootten (1991).

22 See Wootten (1991); Brockie (1992); Jay (2009).

23 ‘Police Officer Who Dropped Ms Dhu on Concrete Floor Thought She Was “Acting”’ The Guardian, 21 March 2016 <https://www.theguardian.com/australia-news/2016/mar/21/police-officer-who-dropped-ms-dhu-on-concrete-floor-thought-she-was-acting>; Fogliani (2016).

24 Wootten (1991).

25 See McCormack v Langham (Supreme Court of NSW, Studdert J, 5 September 1991); Conners v Craigie (Supreme Court of NSW, McInerney J, 5 July 1993); Police v Butler [2003] NSWLC 2.

26 White and Perrone (2005). An inquiry by the NSW Ombudsman has found that of the CINs issued for offensive language to Indigenous Australians between 2002 and 2007, 70 per cent of the language was directed at police only, and 23 per cent of the language used was directed at police and others: NSW (2009) at p 15; see also Walsh (2017).

27 ALRC (2018) at para 12.173.

28 Wootten (1991).

29 Many Indigenous Australians have direct or indirect experience as members of the Stolen Generation. Families continue to be torn apart through state policies that promote child removal, displacement and loss of culture. Indigenous children make up 37 per cent of children in out-of-home care in Australia, despite being just 3 per cent of the Australian population: Libesman and Whittaker (2018).

30 Cunneen (2001), p 170.

31 See Summary Offences Act 1953 (SA) s 22.

32 Johnston (1990).

33 Johnston (1990).

34 Jordon et al. (2018).

35 ‘Shameful Statistics: Black Deaths in Custody’, The Law Report, ABC Radio, 12 April 2016 <https://www.abc.net.au/radionational/programs/lawreport/marking-25-years-since-rc-into-black-deaths-in-custody/7315132#transcript>.

36 Australian Institute of Health and Welfare (2018) <https://www.aihw.gov.au/reports/youth-justice/youth-detention-population-in-australia-2018/contents/table-of-contents>; Australian Bureau of Statistics, ‘Prisoners in Australia, 2019’ <https://www.abs.gov.au/ausstats/[email protected]/Lookup/by%20Subject/4517.0~2019~Main%20Features~Aboriginal%20and%20Torres%20Strait%20Islander%20prisoner%20characteristics%20~13>.

37 Johnston (1991) at vol 5.

38 NSW, the Australian Capital Territory (ACT), and WA are the only Australian jurisdictions in which imprisonment cannot be imposed as punishment for offensive language. Queensland and the NT take the most punitive approach to offensive, obscene or indecent language, providing maximum penalties of up to six months imprisonment or a monetary fine (or both). In South Australia, Victoria and Tasmania, fine amounts and terms of imprisonment increase depending on whether it is the defendant’s first, second or third offence: Crimes Act 1900 (ACT) s 392; Summary Offences Act 1988 (NSW) s 4A; Summary Offences Act 2005 (Qld) s 6; Criminal Code 1913 (WA) s 74A; Police Offences Act 1935 (Tas) s 12; Summary Offences Act 1966 (Vic) s 17; Summary Offences Act 1923 (NT) ss 47 and 53; Summary Offences Act 1953 (SA) ss 7 and 22.

39 Walsh, (2017), p 334.

40 Walsh (2017), pp 336–337.

41 See NSW Anti-Discrimination Board (1982); Langton (1988), p 201; White (1997); Cunneen (2001);White (2002); Eades (2013), p 103; Walsh (2017).

42 Morreau (2007).

43 Morreau (2007).

44 Hooper (2010).

45 Keenan (2009).

46 Mulrunji was uninjured before he arrived at the police station. The facts on the events between his being removed from the van and dragged to the cell, however, were disputed. As the second inquest held into the death, Queensland State Coroner Deputy Chief Magistrate Mr Brian Hine noted that his ‘fact finding task has been made more difficult by the fact that not one of the witnesses has maintained a consistent version when interviewed or when giving evidence over the intervening years’: Hine (2010), para 94.

47 Hine (2010). The first Coronial Inquiry found that Mulrunji’s death was a result of a punch by Hurley to the deceased: Clements (2006). This finding was later found by the Queensland Court of Appeal to be not open on the evidence: Hurley v Clements & Ors (2009) QCA 167. A further coronial inquiry in 2010 returned an open finding as to the cause of death: Hine (2010).

48 Clements (2006), p 32.

49 Clements (2006), pp 32–3.

50 See Police Powers and Responsibilities Act 2000 (Qld) s 365. The Coroner suggested that the power to arrest without a warrant could be amended to provide that ‘a police officer may only arrest an adult without warrant where the officer reasonably suspects that he or she has committed an offence and where they reasonably believe that no other action, in all the circumstances, is appropriate given the matters set out in s 198 [now s 365].’ The Coroner also recommended that the Queensland Police Operational Procedures Manual be amended to instruct officers to consider arrest as a last resort and consider all alternatives before arresting a person, particularly for minor offences: Clements (2006) pp 28–29. She made further recommendations in relation to incorporating a statutory duty to consider and utilise alternatives to the detention of intoxicated persons in police cells (now see Police Powers and Responsibilities Act 2000 (Qld) ss 375–378A).

51 This definition has been unanimously accepted by the High Court of Australia: Monis v The Queen (2013) 249 CLR 92 at paras 57–59 per French CJ (Heydon J agreeing); at para 91 per Hayne J; and at para 333 per Crennan, Kiefel and Bell JJ. The High Court were considering the constitutional validity of s 471.12 of the Criminal Code (Cth) which makes it a crime to use a postal or similar service in a way that reasonable persons would regard as being in all the circumstances offensive. The definition narrows the oft-cited definition from Worcester v Smith [1951] VLR 316 by adding the word ‘significant’, where Worcester v Smith defined offensive language as ‘such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person’ (at p 318).

52 Trollip et al (2019).

53 John Elferink (Attorney-General), Northern Territory, Parliamentary Debates, Legislative Assembly, 26 November 2014, p 5630.

54 The changes were introduced by the Police Administration Amendment Act 2014 (NT).

55 This term is misleading: paperless arrests are not ‘paperless’ as the recipient is ordinarily used an infringement notice following the arrest.

56 Police Administration Act 1978 (NT) ss 123 and 133AB; Police Administration Regulations 1994 (NT) reg 19A.

57 See Wilson and Kelling (1982).

58 For criticism of the broken windows theory, see Harcourt (2001); Taylor (2001).

59 John Elferink (Attorney-General), Northern Territory, Parliamentary Debates, Legislative Assembly, 26 November 2014, p 5629.

60 North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 326 ALR 16.

61 See, eg, Hunyor (2012); Yang (2015).

62 Cavanagh (2015), para 88. The formal citation was changed to Kumanjayi out of respect to family members.

63 ‘NT Labor Vows to Overturn Paperless Arrest System’, ABC News, 17 August 2015, <http://www.abc.net.au/news/2015-08-17/nt-labor-vows-to-overturn-paperless-arrest-system/6702798>.

64 NT Labor, ‘Labor to Support Territory Police’, 17 August 2016 <https://www.territorystories.nt.gov.au/jspui/bitstream/10070/257243/1/Gunner-170815-Labor_to_support_territory_police.pdf>.

65 Methven (2019).

66 This argument that criminal infringement notices amount to decriminalisation is regularly advanced in the debate on drug (de)criminalisation; see, eg, Howard (2020) vol 2 p 287.

67 See Criminal Procedure Regulation 2017 (NSW) sch 4; Criminal Procedure Act 1986 (NSW) ss 333–40; Summary Offences Regulations 1994 (NT) regs 3-4A; State Penalties Enforcement Act 1999 (Qld) ss 13–15, 27–3; State Penalties Enforcement Regulation 2014 (Qld) sch 1; Police Offences Act 1935 (Tas) s 61; Monetary Penalties Enforcement Act 2005 (Tas) s 14; Summary Offences Act 1966 (Vic) s 12(1)(c), ss 60AA and 60AB(2); Criminal Code Act 1913 (WA) ss 730–3; Criminal Code (Infringement Notices) Regulation 2015 (WA) sch 1.

68 ALRC (2018) at pp 382–9.

69 NSW Ombudsman (2009) at p vi.

70 WA Ombudsman (2017) at vol 3 p 100. 

71 In NSW, in the year ending March 2019, 186 (20.5 per cent) of all 906 adults proceeded against to court were Indigenous Australians and 160 (13.7 per cent) of all 1172 adults proceeded against by way of criminal infringement notice were Indigenous: NSW Bureau of Crime Statistics and Research, Offensive Language and Conduct Statistics (Prepared for Researcher) (Ref KJ19-18054, 2019).

72 The NSW Law Reform Commission (NSWLRC) recommended that ‘only in exceptional circumstances involving demonstrated public interest may a penalty notice amount be up to 50% of the maximum court fine, for example where (i) the harm caused by the offence is likely to be particularly severe (ii) there is a need to provide effective deterrence because the offender stands to make a profit from the activity, or (iii) the great majority of offences are dealt with by way of penalty notices, so that the maximum court penalty is less significant as a comparator’. None of these exceptions apply to the crime of offensive language: NSWLRC (2012) at p 108; Methven (2014).

73 NSWLRC (2012) at p 311.

74 Recommendation 12-4, ALRC (2018) at p 423.

75 ‘Coalition Criticised for “pathetic” Response to Indigenous Incarceration Report’, The Guardian, 30 March 2018, <https://www.theguardian.com/australia-news/2018/mar/30/coalition-criticised-for-pathetic-response-to-indigenous-incarceration-report>.

76 For further discussion, see Feerick (2004); Lennan (2006); Walsh (2017); McNamara and Quilter (2013, 2014); Methven (2016); NSWLRC (2012) at p 309; Wilson (1978).

77 Stephen Lawrence et al have argued that offensive language crimes are unconstitutional due to infringing the freedom of political communication implied into the Constitution, given that the laws: do not have an object that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government; or alternatively, if they have a legitimate object or end, they are not reasonably appropriate and adapted to achieving it: Stephen Lawrence, Felicity Graham and Christian Hearne, ‘“You Fucking Beauty”, “Fuck Fred Nile” and Other Inoffensive Comments: A Discussion Paper on the Law of Offensive Language’ (10 November 2016) at para 71 <https://criminalcpd.net.au/wp-content/uploads/2016/11/You-Fucking-Beauty-Fuck-Fred-Nile-Stephen-Lawrence-Feliciy-Graham-Christian-Hearn.pdf>.

78 In NSW, for example, see: Crimes Act 1900 (NSW) s 60 (assault and other actions against police officers); s 61 (common assault, which includes psychic assault); 93C (affray); s 54B (intimidation or annoyance by violence or otherwise); s 93Z (publicly threatening or inciting violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status); Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13 (stalking or intimidation with intent to cause fear of physical or mental harm); Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 197–9 (powers to give directions). For further discussion, see NSWLRC (2012) at pp 307–310.

79 Hogg and Brown (1998).

Additional information

Notes on contributors

Elyse Methven

Dr Elyse Methven is a Lecturer in law at the University of Technology Sydney, where she teaches Criminal Law and Procedure and Criminal Sentencing Law. Her areas of expertise include criminal justice and language and the law. She completed her PhD in 2017 on offensive language crimes. Her current research is on the operation of police discretion with respect to infringement notices, the regulation of offensive language, and the intersection of criminal and administrative powers.