Swearing law could be challenged in High Court
A new law to fine people on the spot for swearing will not be effective and may lead to a High Court case, according to legal academics.
The Victorian Government has introduced legislation that will give police permanent power to give on-the-spot fines of up to $240 for those who use offensive language.
Monash University Professor of Law Jeffrey Goldsworthy said a fine may be challenged in the High Court on the basis of the implied freedom of political communication.
“The High Court has held that the Constitution by implication protects freedom of political communication. In a case called Coleman v Power, this was held to protect someone from being prosecuted for using insulting/offensive speech, when this was part of a political communication,” he said.
Greens MP Colleen Hartland believes the proposed law is unnecessary and unclear.
“Is farty poo bum a swear word? Is windy bottom a swear word?” she said.
The question remains what is considered offensive and that police are acting as moral judge and jury.
Previously, there have been court cases which have set a precedent on the use of offensive words such as “prick”.
Magistrate Robbie Williams ruled that prick is a common everyday word.
“I consider the word prick is of a less derogatory nature than other words and it is in common usage in this country,” he said.
La Trobe University law professor Jianfu Chen said that it is unlikely to be effectively enforced.
“It’s going to have no effect whatsoever. It’s going to be a law that’s going to made and be ignored. It’s unlikely to be enforced,” he said.
University of Queensland senior lecturer Jonathan Crowe believes that swearing should not be criminalised.
“Generally, I don’t think it should be criminalised,” he said.
“It should be a presumption that people are free to discuss things as they like in public with certain exceptions.”
A possible problem could be swearing at a public figure.
“If swearing is related to criticising police or criticising another public official then that raises constitutional concerns about freedom of speech,” Mr Crowe said.
“Under Australian constitution law there is an implied freedom of political speech in the constitution which is protected. So it only covers political speech- which is speech about political issues or about the performance of public officials. But it could be the case that somebody is swearing in order to make a political point or criticise a public official in that case it would be constitutionally protected, potentially.”
About 200 people protested against the law in front of Victoria’s Parliament last week.