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We Need The Freedom To Offend So This Ridiculous Law Must Go!

Freedom of speech, I have heard recently, is a near-sacred concept and it includes the freedom to offend, insult and humiliate. While 18C has been fixed up and “made stronger” by changing those terms to “harass”, there remains a law on the statute books which greatly inhibits freedom of speech.

SUMMARY OFFENCES ACT 1988 – SECT 4A

Offensive language
4A Offensive language

(1) A person must not use offensive language in or near, or within hearing from, a public place or a school

Why is this ridiculous law allowed to remain on our books? I mean we all need the freedom to offend, right? Why should some bastard arbitrarily decide that my language is offensive? I mean, that’s f*cked, right?

As has been observed:

“The cornerstone of public order legislation is usually a provision that permits police to act where behaviour in a public place is regarded as offensive, insulting, abusive or indecent. Such provisions are inevitably vague and open-ended, with the characterisation of the behaviour left to the discretion of the police in the first instance, and subsequently to the discretion of magistrates.”
David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales

So where is the outcry? All right, nobody charged Andrew Bolt. And ok, it’s usually only indigenous people who ever get charged with offensive language. But still, this greatly infringes on my right to go to the football and scream abuse at the umpires. How do can tradesmen go to work when they know that an expletive uttered when they drop a tool or hurt themselves may see them hauled before a magistrate and, just like Andrew Bolt, be told to say sorry and not to do it again? (Ok, I know that some of you are going to mention that the defence offered under Section 2 of the Act which states: “2. It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence”, but that’s like saying that 18D offered protection to Bill Leak when his cartoon drew criticism and we all know that people don’t like to be criticised so where’s the protection there?)

Why shouldn’t I be allowed to roam the streets with a megaphone pointing out what a pack of arseholes politicians are? Why shouldn’t I be able to stand outside a school waiting for any teacher that gave my child poor grades and express my views in language that makes it clear what my thoughts are? Why shouldn’t I be able, when pulled over for speeding, turn to the officer and say, “What’s the trouble, f*ck-face?”

This offensive language act is outrageous and, even though it is may help in the locking up of aboriginal people, surely in this day and age, we can find a more sophisticated reason to incarcerate them. Something like, say, banning the words, “invasion day”! No, the act must go in the name of freedom of speech.

I urge you all to write to your Federal MP and ask them to put time and energy into the repeal of this act. And don’t let them put you off by suggestions that there is an energy problem at this time. When they try to tell you that it’s a state law and outside their jurisdiction, point out that’s never stopped them interfering when it suits them. Surely they could use the Corporations Act or something.

No, go online and start some petition. Organise. Or get Andrew Bolt onside… That should do it!


26 comments

  1. Terry2

    The brave new world of giving offence, insulting and humiliating people.

    I’ll take a while to get used to this new regime and I’ll have to brush up on some racial slurs that I have not previously felt the need to use or been able to use.

    As Dr Anne Aly , the first Muslim woman in our parliament, asked our Prime Minister the other day ;

    “what is it that you want to be able to say that you can’t say now ?”

    He declined to respond to the question but isn’t that Question Time, when nobody actually answers any questions.

  2. Mark Needham

    As with all Rights and Freedoms, comes the oft forgotten term, Responsibility.
    Mark Needham

  3. jim

    IMO this 18c issue is pushed by the LNP’s Lawyers, think $ millions in court arguments across the country….If it assists the rich it’ll be endorsed and argued for by the Turnbull/Abbott right wing government for sure.

  4. Pilot

    Fair dinkum Rossleigh you’re a lunatic, lmao! A very serious matter, but in your own way have “bounced” it. It’s just not right, well it is, far right, lunatic fringe. But 18C must remain in place, regardless of you posturing, lol.

    It just goes to show how narrow-minded, self-centred and wrong our federal fascists & bigots are.

    They are an utter disgrace!

  5. Sam

    Have any of you guys ever come across a grouping of facebook pages, of which the main one is called Aussie Infidels?

    According to them Pauline’s great, Malcolm is doing Australia a great service fixing 18C, muslims are responsible for everything bad in history ever and Waleed Aly is the most dangerous man in Australia.

    It’s sad that bigots like that exist.

  6. Roswell

    Not me, Sam. And I’m glad I haven’t. 😀

  7. Sam

    I am kind of ashamed that 2016 did such a number on me, that I kind of just reported and blocked them! Not that I thought reporting would do any good, it was simple therapy. 😀

    Maybe in years past, like the grand old year of 2015, I would have debated with them Ah to go back to such grand old times like 2015, haha.

  8. Maeve Carney

    I tend to see it a slightly different way. Making a law takes freedom away. You are looking at it in a very negative way. You are assuming that everyone would offend if there wasn’t a law to stop them. That isn’t true. People like their freedom, I like my freedom. I like to have the freedom to choose to not offend. That’s my default position, but still a choice. Taking away people’s choice to do the right thing is still taking away their freedom. The constant question “Why do you want to be able to offend people” is just plain rude. I don’t want to offend people, most people don’t. They want to be able to have the freedom to choose not to. The question I want to ask is “Why do you not want people to use their own moral judgements to make the right decision for the right reasons?” If you are content to make laws that deny people the right to make their own moral judgements, where will you draw the line? How much freedom do you want people, yourselves included, to lose?

  9. Carol Taylor

    So, from now on if the LNP conservatives get their way you’ll be allowed to hurl as much abuse to the Aboriginal/Asian/Jew/Muslim bloke in the other corner of the bar as you like because although you’ve humiliated him, you haven’t technically harassed him. But if you do harrass him or her, then the person could call the police, harassment being unlawful under the criminal code of several States. Which basically renders 18C worthless..but I guess that’s what the aim is anyway.

  10. Maeve Carney

    Quite right Mark Needham. People often forget that with rights and freedom comes responsibility. But if you make laws to dictate who people behave, and think and what they can say, people don’t have to be responsible. In this modern day no-one is responsible for their own actions, no-one is responsible for how they react to other people. You’re offended by something someone said, use the law and sue them. No responsibility required. People can be as thin skinned as they like, they don’t need to be responsible for how they feel, they can just use the law and make someone else responsible. People nowadays seem to want to make laws that absolve people of any responsibility. Let’s slow driving speed to a crawl because god forbid, that pedestrians take any responsibility for their own safety when crossing roads. “Let’s make a law” is a nasty default position that erodes rights AND responsibilities.

  11. Michael

    Time to emblazon in one’s mind:

    For every law, there is an outlaw —> (a) $$$ in fines + (b) a charge ($$$ and/or custodial/criminal) to be defended/misproven (almost impossible if the only “witness” is a police officer and one happens to be indigenous (?) + (c) lawyers/magistrates/judges get a lick + (d) a cowered/controllable population = politicians, who make laws, get a TICK and vested interests flourish TICKTICK.

    Apparently, works well (for whom?) otherwise it would not be happening.

    I wonder, when sitting on my thinking seat, how many laws are there at any one time past + new laws – laws sunsetted/repealed = X number of laws today.

    To which can be added how many laws are in the pipeline to keep our industrious pollies buzy?

  12. Sue

    Maeve, responsibility . . ah the collective memories.
    As a society we threw away personal responsibility in exchange for getting someone else to make decisions on our behalf. And with some exceptions, what a botch those we delegated, ie. the Laberal and Green pollies, made of decision-making on our behalf. Only way back is via Swiss style voter initiatives and referenda, something that is not on the radar at the moment.

  13. Michael

    If the mighty US of A has the now claytons statue of LIBERTY – we should have a RESPONSIBILITY equivalent on a rocky outcrop in Sydney Harbour.

    Now there’s agile innovation and we can endless hours looking and thinking what could be.

  14. Jane

    Maybe its time to test Malcolm Turnbull by standing out front of his home and yelling that we think his wife is a Cuxt.

  15. @RosemaryJ36

    Reading some of the comments makes me wonder why the law exists in the first place. And I answer that question in my mind by thinking that there must have been occasions in the past when enough people were badly enough affected that the law was felt necessary. And the reference to Aussie Infidels indicates that potential offenders still exist. Yes – rights and responsibilities SHOULD go together, but what do you do when IRRESPONSIBLE people insist on exercising their rights without constraint? Who protects the innocent victim?

  16. wam

    you’re right there is no need for the law if you are rich you can use the lawyers if you are poor who cares if you are offended or insulted.

  17. guest

    I find the idea that we do not need a law is quite interesting in theory. Look at the rows of books in Brandis’s library. Why do we need so much legislation to enforce the 10 commandments? Are they laws?

    Why do we need laws to enforce people to drive on the left? Don’t people know that already? Isn’t that their responsibility to know that and not be irresponsible?

    Take also “freedom of speech”. Is speech entirely free? Are there no restraints at all against some things said? We can say whatever we like? Do we need a law about slander? Or harassing? Don’t we know we have a responsibility to not do those things? Can we not exercise our freedom not to do those things without laws?

    So far I have exercised my freedom to not kill anybody. But what if there was some dreadful accident and someone was killed. If there was no law, would the matter be all forgotten? Could I, as one involved, be charged with dangerous driving and driving without do care, or even manslaughter – or murder if it could be proven I acted with intention?

    So if we do not need thought police, why have police at all? Why have laws?

    Remember the play “Macbeth”, when Macduff has been killed.
    Lady Macduff says to her son: Sirrah, your father’s dead: / What will you do now? How will you live?
    The son replies: As birds do, Mother.

    Such naivety and innocence.

    The son asks: And must they all be hanged that swear and lie?
    Lady Macduff replies: Every one.
    Son: Who must hang them?
    Lady Macduff: Why, the honest men.
    Son: Then the liars and swearers are fools; for there are liars and swearers enow to beat the honest men and hang up them.

    Out of the mouths of babes and sucklings.

  18. Aureliae

    I’ll go you one better. S4A is a tool of oppression by police, particularly against youth and indigenous Australians, and in rural areas, and there’s 40 years of academia calling for it’s repeal. It was also a recommendation of the Royal Commission in to Aboriginal Deaths in Custody to repeal it. The Offensive Language offence is nearly always the first strike in the Trifecta – used to incite individuals to react and retaliate so police can charge people with the higher charges of assault police and resist arrest, which is why there are so many loud calls to get rid of it. If police won’t stop abusing the power, it needs to be taken away from them.

    This is a State law however, not federal. S4A is in the NSW Summary Offences Act. Start the petition yourself, post it to all the police vs facebook groups… watch how fast it grows.

    Also – (implied) freedom of political expression is protected by the constitution, and the right to use offensive language while doing so by the High Court judgement Coleman and Power (2004) which specifically looks at the contradiction between a now superceeded Qld equivalent of S4A and the Constitution’s implied freedom of political expression.

  19. Halfbreeder

    i suggest u read Butler v The Police. The legislation does not stand on its own and is subject to judicial interpretation in accordance with the caselaw. ‘Offensive’ is narrowly construed by the courts these days to include mostly racist remarks intended to intimidate or threaten. slang and what was once considered swearing is no longer considered ‘offensive’. but i agree what is considered ‘offensive’ is highly subjective and arbitrary.

  20. Halfbreeder

    Aureliae. the guaranteed freedom of communication on political and gov matters as explicated in Lange and applied in Coleman is being gradually wound back and narrowed by recent conservative High Courts. Frankly, I am not satisfied that my freedom of communication can he limited by a court made up of unelected political agents who have a narrow view of what constitutes political speech and who have exempted themselves and their absurd decisions from the operation of the principle. We need the principle to be enshrined in a bill or charter of rights where the principles are inalienable and can invalidate other minor inconsistent laws

  21. Aureliae

    Butler v Police 2003 is trumped by Coleman and Power 2004 and most recently the case being wonderfully referred to as the ‘F*ck Off Fred Nile’ case (2016) wherein a local court magistrate applied the Coleman and Power very narrow definition directly to s4A, and very explicitly went to great lengths to detail what is not offensive language. Unfortunately being a local court, the judgement is not online, you’ll need to suffice with the news story. http://www.smh.com.au/nsw/court-finds-f-fred-nile-not-offensive-language-at-marriage-equality-rally-20161025-gs9ymc.html

  22. Halfbreeder

    Maeve Carney. you cant sue people for offending you as you state and that has never been the situation and still isnt. to sue some one you need financial loss or detriment or physical injury or loss of reputation in defamation. Hurt feelings alone has not and never has granted standing to sue. You sound like one of those people whinging about changes that do not really exist…’the good old days are better
    ‘ right…people these days are bad etc…yet nothing is any different as hurt feelings alone have never been enough to give standing to sue and still arent so nothing has changed. Your complaint arises from ignorance and your perception of ‘these days’ is in your mind.

  23. Halfbreeder

    i know butler v police is ‘trumped’ by coleman v power but coleman v power only applies where the lange principle is invoked. They involve different.legal issues. Butler dealt with the meaning of “offensive’ under the Summary Offenses Act where no political speak was claimed. Coleman dealt with 1. whether something can he offensive if it fell within the scope of protections of the Lange immunity and 2. whether the provisions in the queensland legislation under which coleman was charged were invalid by way of inconsistency with the Lange principle implied from the Constitution. Butler dealt with the meaning of ‘offensive’ in the Sumnary Offenses Act. On that point if the offender does not raise a lange/coleman defence the definition of Butler applies not Coleman at least in local.court nsw criminal proceedings. whete the summar offenses act provisions are heard. Summary Offenses Act offences are not prosecuted in the High Court unless they get there on appeal. further, the fact that one judge does not find particilar words offensive is sufficient to defeat the prosection case as it would create sufficient doubt such that the.prosecution has not satisfied the standard required…beyond reasonable doubt. if one judge denies certain words are inhetently.offensive the standard of proof required in criminal matters cannot be satisfied.

  24. Halfbreeder

    Aureliae. from what you linked the fred nile case is the same principle as in butler…the words are not inherently offensive and do not fall within the definition of offensive in the Summary Offences Act. However, i would be very interested to read the whole decision if it relates the Lange/Coleman case to the provisions in the Summary Offences Act. if u could post another link or let me know where to find it that would be great.

  25. Aureliae

    Halfbreeder – go to law school. Then you might understand why it is relevant for the Coleman and Power test to be specifically applied in a political speech case in a NSW court, and the most recent interpretation of s4A to be more relevant. And you can stop posting irrelevant, barely comprehensible posts.

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