Fred Nile
Fred Nile

This week, the case against three protesters from Community Action Against Homophobia, who were charged by NSW Police for offensive language after saying bigots should “fuck off”and saying “fuck Fred Nile”, was thrown out of court. The judge stated that the language used against the leader of the Christian Democratic Party was an argument against his stance on marriage equality, and that “you fucking beauty” was part of the Australian vernacular. But weirdly, none of the the free speech warriors who get so riled up about 18C came to their defence.

The three prostestors involved were at a counter protest to a protest held by Nile in September last year. There were complaints from the Nile crowd that the swearing over megaphones was in earshot of children at the event. The word was allegedly not part of their vernacular at that point. Magistrate Geoffrey Bradd found that the word ‘fuck’ “has no meaning”and the meaning depends on the context it is used.

“A person does not use offensive language merely by using the word ‘fuck’,” Bradd said.

Children were much more likely to pick up words from people closely associated with the child, like a parent, rather than words they’ve just heard, Bradd said.

The judgment has led to some questioning whether “fuck” is now no longer considered an offensive word, but CAAH is unusual in fighting the charge at all.

Section 4A states people must not use offensive language (with no definition of what offensive is) in or near a public place or school. The fine can be up to $660 or 100 hours of community service. Section 4 for offensive behaviour can result in three months in prison.

According to the latest statistics from the Bureau of Crime Statistics and Research, in 2015, there were 1875 charges finalised for use of offensive language in New South Wales alone, and charges were proven in around 80% of those cases.

Almost every state or territory has a similar law on the books. This compares to just 77 complaints to the Human Rights Commission under section 18C of the Racial Discrimination Act in 2015-16.

Section 4A and Section 4 are considered to be “high volume” criminal offences, given how often people are charged under these sections. Generally, police officers are the targets of the offensive language. Because the definition of offensive is so broad, many people are given infringement notices for relatively mild language, and most do not challenge in court. Shopfront Youth Legal Centre told the New South Wales Law Reform Commission in 2010 that some of its clients had been given fines just for telling their friends to “fuck off”. The broadness of the definition of  “offence” means that some judges have in the past found “fuck” to be offensive, while others are less concerned about its use.

Charges and fines under section 4 and 4A are directed at indigenous Australians more often than other portions of the population. The New South Wales Ombudsman found in 2009 that 83% of criminal infringement notices (where a penalty is given rather than going to court) given to indigenous Australians were for offensive language or conduct.

Section 4A probably won’t become the rallying cry that 18C is for free speech warriors, but the three protesters involved in the Fred Nile case spent more than a year in court fighting for the right to say “fuck”. One of the protesters, Cat Rose, told Crikey she had to take time off work to defend the case, and now her lawyers were chasing legal fees from the NSW Police. The case curiously didn’t garner the same attention of those who want an overhaul of section 18C of the RDA but legal experts in the past have suggested that eventually the offensive language section in the Summary Offences Act will end up before the High Court.

“Offensive language laws would fall foul of the constitutional freedom insofar as they enabled people to be prosecuted for offensive non-verbal political communications. Sooner or later, anti-censorship campaigners will challenge the constitutionality of indecent language/behaviour laws,” La Trobe law professor Roger Douglas said in 2005.

The Institute of Public Affairs is consistent on this issue.  Simon Breheny, Director of Policy at the Institute of Public Affairs told Crikey in a statement that section 4A and 18C should be repealed.

“Calling on the state to silence people for saying offensive things is always wrong… It’s important to point out that those who believe it should not be against the law to say ‘fuck Fred Nile’ but that it should be against the law to publish a satirical cartoon, such as that of Bill Leak, are hopelessly hypocritical. These are people who defend freedom of speech only for opinions that confirm to their own.”

Today Attorney-General George Brandis and Indigenous Affairs Minister Nigel Scullion announced that there would be an Australian Law Reform Commission review into indigenous incarceration rates, noting the high incarceration rates for indigenous Australians in the 25 years since the Royal Commission into Aboriginal Deaths in Custody. Recommendation 86 from that report recommended “the use of offensive language in circumstances of interventions initiated by police should not normally be occasion for arrest or charge”, and yet offensive language laws still remain one of the most-frequently used laws against indigenous Australians.