The Government Has A Million-Dollar Swear Jar — WTF?
By Joel TozerAugust 16, 2012
A four-letter flare-up can cost you as much as running a red light — and the filthy-mouth money flows into state coffers. Given some of the language used in parliament, don’t we have to ask: is maintaining order really at risk from modern expression?
Some words can't be aired in public without causing offence, and most of us bloody well know what they are.
Take cattle boss David Farley's speech in Adelaide this month, where he compared the Prime Minister, Julia Gillard to a "non-productive old cow"; offence was inevitable. Within the room, the comment was reportedly met with laughter. But across the media it was described as "sexist and silly" and a sign of "destructive prejudices long past their use-by date in our modern, diverse society". Farley says the comment was taken out of context.
True enough, where you use words, and to whom you say them, makes all the difference in the offence.
There is a kind of social swearing among friends — "You silly old bugger" — that some linguists refer to as "verbal cuddling". There are the expletives you use when you are stuck in traffic or hit your thumb with a hammer. And of course there is abusive language reserved for when you really want to wound someone.
Many people would be surprised to find out what any of these words could cost them — literally, that they can be fined or arrested for using offensive language in a public place.
In every state and territory of Australia, it is an offence to be offensive. Whether police or a court would consider the type of language that Farley used an offence is an interesting question. If history is any indicator, public figures will continue to make offensive blunders without ever being issued a fine.
So, who decides what is offensive? In many states, it's up to police discretion.
In New South Wales, Queensland and Victoria, police can issue on-the-spot fines for offensive language. And as far as many civil rights groups are concerned, that is part of the [expletive] problem — that police, who are often the victims of the offence, are also the arbiters of it.
A 2010 court case, in which a university student was arrested after calling a police officer a "prick", is a good example. The police officer clearly deemed that this was offensive. But Waverley Local Court magistrate Robbie Williams later ruled that "the word prick is of a less derogatory nature than other words and it is in common usage in this country".
In June last year, when the Victorian government announced it would be introducing fines for the use of offensive language in public, hundreds of people took to the street in an official 'FuckWalk'. From Flinders Street Station to Bourke Street Mall in Melbourne's CBD, the group carried signs that read "Free speech is a fucking lie" and "Free speech, not fine$". You could say they responded as if this were a new law, brought in by some sort of Big Brother government. In Victoria it has been an offence to swear in public since 1966, the offence just hadn't yet carried a fine.
So, how much does it actually cost to be offensive?
In NSW — where more than 5,000 incidents of offensive language use were recorded in the last year — the cost of the fine often depends less on the language than on where the language is used. Fines range from $100 to $400, which is comparable to the fines which can be imposed for spitting on a railway platform ($400) or driving through a red light ($353).
You only have to put these numbers together to see that NSW police are in charge of a million-dollar swear jar. In 2011, the state revenue collected a staggering $1.23 million in fines for offensive or indecent language.
Other states are more coy about their windfalls due to bad-language. Since such fines were trialled in Victoria in 2008, police in that state have issued 2,705 fines for "the offence of using profane, indecent or obscene language in public", says a spokesperson for the Victorian Department of Justice.
While the department could not provide a total amount for the money collected from fines, a rough estimate using the 2008 fine amount of $238.90 (which rose to $282 in July 2012) generates a figure of more than $640,000 in revenue.
Queensland police can issue a $100 on-the-spot fine for urinating in public — and the same for offensive language. In the year to March, more than 1,500 potty mouths had to pay up. More than twice as many (4,000-plus) offensive language charges were recorded in the state, but those who weren't immediately fined were dealt with in other ways: for example, some were arrested and others were given a notice to appear in court.
It's difficult to obtain the number of incidents that occur in other states, for a number of reasons. In Western Australia, for example, the offence of disorderly behaviour can involve a number of offensive actions but is not broken down into specifics such as offensive language. "Only within the facts of the matter would the language be referred to," a spokesperson for the WA police told The Global Mail.
Earlier this year, the NSW Law Reform Commission conducted an inquiry into penalty notices, including the penalties issued for offensive language in NSW. Dozens of submissions were received, with some calling for the law to be tightened or abolished.
"While some people may object to these words, the case for making their use an offence must be weakened considerably by the frequency of their appearance in popular songs, television programs, novels, radio and even in public discourse," the Commission's report notes.
The Commission's final report, published in February, called for a separate inquiry into whether or not offences for offensive language should be abolished.
The NSW Attorney General's office told The Global Mail that it does not believe an inquiry is warranted and has no plans to abolish the law: "People have the right to use public places free from verbal abuse," a spokesperson for the NSW Attorney General, Greg Smith, said. "The job of a police officer is difficult enough without having to put up with offensive language."
Some police officers say they decide to arrest a person for offensive language when they have been subject to abuse, or haven't been shown respect. During a consultation for the 2008 Queensland Crime and Misconduct Commission's report into Policing Public Order, one police officer noted: "I get called names all day and I don't arrest. But if members of the public hear someone swearing at me, then I arrest."
Thousands of people are fined with using offensive language each year, and studies show that very few of them challenge the offence in court. The NSW Law Reform Commission's report outlines the figure for all penalty notices, not just language offences: "Of the 2.7 million penalty notices issued during the 2010/2011 financial year, only 28,214 recipients (1.04 per cent) elected to contest them in court."
And perhaps unsurprisingly, studies have also shown that the language offence is more frequently imposed on minority groups and youths than on other sectors of the community. The NSW Aboriginal Legal Service estimates that roughly 10 per cent of its clientele seeks legal assistance for language and behaviour offences. Many others avoid court appearances for fear of losing and having a criminal conviction recorded against their name.
"I think it is the way police interact with young people, with Aboriginal people, with minority groups in public places that is the issue," says Chris Cunneen, a professor of criminology at the University of New South Wales.
"Policing will always be discretionary and if you don't have a good, well-trained police force that are sensitive to a whole range of issues, then the policing is going to be the same, irrespective of what legislation is in place."
Offensiveness is a vague concept, and just as language is dynamic, rulings in court about what is offensive are always changing. Previous court cases have noted that language should be viewed from the perspective of a "reasonable person" who is "not thin-skinned" and is "reasonably contemporary in his or her reactions".
Sydney-based Shopfront Youth Legal Centre, in its submission to this year's NSW Law Reform Commission inquiry, said that a significant number of its clients had been issued with penalties or fines for offensive language. "In many of these cases, the language allegedly used would not meet the legal test for 'offensiveness'," their submission noted.
Elyse Methven is completing a PhD on offensive-language crimes across Australia, looking at how judges and magistrates determine what is offensive.
"Courts are supposed to be applying what are called 'contemporary community standards' — having regard to community standards," Ms Methven told The Global Mail. "But, what are community standards on swearing and language use anyway? This notion isn't acceptably explored in the cases and judges have come to very different conclusions on what the community standards are."
Take the 1971 case of Kim Dalton, who was charged with indecent language after reciting a poem containing the words "fuck", "fucked" and "cunt", at a music festival in Adelaide. He was convicted in the Magistrates Court, but later appealed, forcing the courts to consider the type of language that was considered offensive.
When Justice David Hogarth considered the language Dalton had used, he recalled his six years in the army in World War II, during which he heard "all three words used probably many thousands of times.
"There is a continuous process by which language, like money, loses its value; and in this usage the word has lost all meaning. It may be full of sound and fury, but it signifies nothing," Justice Hogarth said. Dalton's appeal was successful.
A number of more recent local court cases have debated the use of offensive language in public. In 2003, magistrate David Heilpern dismissed an offensive-language charge, arguing "the word fuck is extremely commonplace now and has lost much of its punch".
The case involved police who were called to a house after complaints were made about a woman shouting at her neighbours. When the police arrived, the language directed at them included: "What the fuck are youse doing here? My fuckin' son had to get me out of bed. I can't believe youse are here."
The magistrate argued that although some people might find the language offensive, it would make little difference "to the reasonably tolerant person if swear words were used or not".
"One cannot walk down the streets of any of the towns in which I sit, day or night, without hearing the word or its derivatives used as a noun, verb, adjective and, indeed, a term of affection," Magistrate Heilpern said. "I have had witnesses who when asked their name answer 'John fucking Smith.'"
It seems that even in the workplace, attitudes to swearing or offensive language are changing. In June this year, Fair Work Australia ordered the re-employment of a security guard who was fired for telling his boss to "get fucked". Commissioner Helen Cargill said that while the language was "totally inappropriate and unwarranted", it occurred in a workplace where swearing was commonly used.
While we have all wished we could scream a number of colourful words at our boss when being required to work overtime (as was the issue here), the case doesn't mean that swearing at your boss is now warranted in all situations. It does, however, illustrate again how hard it is to regulate offensive words. What may be considered offensive by today's standards will eventually become diluted as people find new ways to insult their enemies or express their anger.
"When I swear, I remodel it to things like 'golly' and 'gosh' and 'goodness'. I guess I am a bit old-fashioned in that respect," says Kate Burridge, one of the world's leading experts on swearing.
"People talk about [swear] words as being dirty and sounding horrible, which is interesting because they are just words. But, I know they are powerful and I know people get upset by them, so I'm always very careful not to use them if I am giving a lecture on swearing … and people sometimes find that a bit odd."
For some, swearing is a common part of Australian English and a true-blue indicator of a person's Australianness. When the video of Kevin Rudd swearing was leaked online, many commented that it made him more human to the voting public. Words such as 'bloody' and 'bugger' — which would once have wounded and offended — are now a part of our everyday conversations.
Even in journalism, where the language of reporting is becoming more conversational, many broadsheet newspapers still censor offensive language used in their stories. Mary Elizabeth Williams, a reporter for Salon.com, recently wrote of the extreme measures taken by The New York Times to censor profanity, which puts the paper in the awkward position of changing people's language.
Standards editor for the Times Greg Brock outlined the paper's reason: "… the Times does not use such references when they refer to things like Shut the F*ck Up. Just last week we omitted a full reference to WTF (What the F—). Instead, we noted that we were referring to a podcast by Marc Maron."
In the Australian parliament, words such as 'fuck' are not normally edited out of the Hansard, says Rosemary Laing, clerk of the Senate, who adds, "Thus you will find the F-word in Senate debates from 15 May 2002, courtesy of former Senator [Chris] Schacht, and a long dispute about its withdrawal."
The most memorable line of offence in parliament doesn't even involve swearing. Well, it's a matter of how you interpret former Prime Minister Gough Whitlam's famous interjection when Winton Turnbull, a member of the Country Party shouted to the parliament: "I'm a country member". Whitlam quickly replied: "Yes, we remember."
"[Turnbull] could not understand why, for the first time in all the years he had been speaking in the House, there was instant and loud applause from both sides," Whitlam later recalled.
Politicians will continue to swear, and prominent members of the public will continue to offend, without ever being fined by police. But with with considerable revenue to be made from less esteemed foulmouths, don't expect government to deviate from the line that language should be regulated and police should be protected.