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Home Resources & Technical Articles Criminal Offence Topics (A to Z) Offensive Behaviour Offences Offensive Behaviour Offences and Penalties in South Australia (SA)

Offensive Behaviour Offences and Penalties in South Australia (SA)

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Australian National Character Check (ANCC) makes every effort to provide updated and accurate information to its customers. However due to the continuously changing nature of legislations for the Commonwealth and various States and Territories, it is inevitable that some information may not be up to date. The information on the website is general information only. The contents on the website do not constitute legal or professional advice and should not be relied upon as a substitute for legal or professional advice. While we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, suitability, accuracy or availability with respect to the information.

Different people have views that vary when it comes to behaviour that's offensive. It is a subjective matter. Upbringing, experiences, the environment and personal preferences and choices are some factors that influence what offends a person. So basically, what one person considers offensive might not be what another person considers so.

Therefore, the law has to step in to regulate what is offensive and what is not, especially in public. Without such regulations in place, chaos and anarchy will be the order of the day.

In South Australia (SA), the law regulating offensive behaviour offences is the Summary Offences Act 1953 (SA). This law has provisions that govern offences against public order, especially in public. The Criminal Law Consolidation Act 1935 (SA) also contains provisions that have to do with disorderly behaviour in a public or private place.

This article will discuss the provisions of these laws on offensive behaviour in South Australia. Along with that, we will also look at the punishment that offenders will receive for breaking the law.

If an individual is convicted for an Offensive Behaviour offence, the offence will show up as a disclosable court outcome (DCO) on a police check.

Provisions of the Summary Offences Act 1953 (SA)

Part 3 of the Summary Offences Act 1953 (SA) has regulations for offences against public order in South Australia. Section 7 falls under Part 3 and deals with disorderly or offensive conduct or language.

According to Section 7 of the Summary Offences Act 1953 (SA), anyone who behaves in a way that is not orderly or in a way that is offensive is guilty of an offence. The accused person has to commit the crime in a public place or a police station before the court finds them guilty.

In the same vein, if a person fights with another person or uses offensive language, the person will be guilty of a crime under this section. This defendant will only be guilty of this crime if they behave in the manner above in a public place or police station.

All the offences above fall under subsection 1 of Section 7, and the highest penalty for this crime is $1,250 or a term of imprisonment for 3 months.

Subsection 2 of Section 7 of the Act has to do with the offence of disturbing public peace. It prescribes an ultimate penalty of $1,250 or 3 months imprisonment for anyone who the court finds guilty of disturbing the peace of the public.

Subsection 3 of Section 7 of the Act contains several definitions of some terms used in the previous subsections. According to subsection 3:

  • To be "disorderly" includes being "riotous";
  • Whatever is "offensive" includes anything "threatening", "abusive", or "insulting";
  • The term "public place" includes a ship or vessel in a harbour, port, dock or river. However, a naval ship or vessel does not fall under this definition.

Provisions for Offensive Behaviour Offences under the Criminal Law Consolidation Act 1935 (SA)

Section 83B of the Criminal Law Consolidation Act 1935 (SA) deals with the offence of riot. It states that if 12 or more persons who are together in a place use unlawful violence for a common purpose or even threaten to do so, they would be guilty of a riot offence in South Australia.

However, before a court can find them guilty, their actions together should be actions that would make a reasonable person afraid for their safety. Each person in the group would then be found guilty of rioting in such a case.

The maximum penalty is of two categories; a basic offence and an aggravated offence penalty. For the former, the punishment for rioting is imprisonment for 7 years. However, for an aggravated offence, the maximum penalty is imprisonment for 10 years.

It doesn't matter if the 12 people threatened or used the illegal violence simultaneously. Also, none of them have to state their common purpose expressly. Instead, the court can infer it from their actions in the circumstances.

The court would still find them guilty even if there were no reasonable person at the scene of the offence. Also, the defendants must have acted intentionally, fully aware that their actions may be considered violent.

Subsection 8 of Section 83C of the Criminal Law Consolidation Act 1935 (SA) refers to Section 6A of the Summary Offences Act 1953 (SA), which deals with violent disorders. Subsection 8 states that if the defendants cannot be held guilty on a riot charge during the trial, the jury may convict them of the offence of violent disorder.

Section 83C of the Criminal Law Consolidation Act 1935 (SA) deals with the offence of affray in South Australia. Under this section, if a person uses or threatens to use violence on another person, they are guilty of the crime of affray. The court would convict the defendant if their actions were such that would make a firmly reasonable person afraid of being hurt or harmed.

More than one person can commit this offence at the same time. The court will look at the behaviour of every defendant concerned to determine the effect of their actions.

This offence can take place in a public or private place. The defendant must be intentional in their actions, and their actions must include both words and actions.

Even if there is no person of reasonable firmness present at the place where the crime occurred, they can still be found guilty.

The maximum punishment for the offence of affray is 3 years imprisonment for the basic crime. The aggravated offence carries a penalty of 5 years imprisonment.

Bottom Line

The law governing offensive behaviour offences was put in place so that society would be orderly and people could live peacefully. Anyone who plans to breach public peace and order will have to face the penalty for their actions.

In South Australia, those penalties are stringent. So if you live in South Australia, the best thing to do is go about your business in the state peacefully. However, if you somehow find yourself facing offensive behaviour charges, immediately contacting an experienced legal practitioner is generally in your best interests.

Any defendant in a case of offensive behaviour will need expert help to get out of that ugly situation. This is why getting an experienced criminal lawyer urgently to defend them is the first action to take.

Will an Offensive Behaviour Offence show up on a Nationally Coordinated Criminal History Check certificate?

If an individual is found guilty of an offensive behaviour offence, the offence will show up as a disclosable court outcome (DCO) on the results of their police check.

Individuals can obtain a police check via the Australian National Character Check - ANCC® website.

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