On the spot fines for swearing

Increasing anti-social behavior will be met with on the spot fines under new laws, says Attorney-General.
With a clampdown on swearing in public places in Victoria, Karl Quinn asks, frankly, what's the point in even going out?

I swear, the very fabric of our society is under attack from the state government's proposed anti-swearing push, with blue language at the footy, rude jokes at a live comedy show and rowdy banter at the bar all technically in breach of the Summary Offences Act.

In truth, they've all been out of bounds since the Act was introduced in 1966, but until 2008 anyone thus charged had to have their case heard in court. That took time and effort and got in the way of more pressing cases. Frankly, who could blame the legal system if it collectively decided it really couldn't be arsed to hear such matters - matters that Ross Garnaut might feasibly have described as "pissant"?

But in July 2008, the former Labor state government introduced a trial under which police were given powers to issue on-the-spot fines of $238.90 to anyone deemed by an officer to have used indecent or offensive language in a public place. An amendment to the Act now before Parliament, and likely to be passed this week, will enshrine those powers.

Wil Anderson ... ''Suddenly my [comedy festival] show is going to cost me a lot more next year." Wil Anderson ... ''Suddenly my [comedy festival] show is going to cost me a lot more next year."

Comedian Wil Anderson yesterday tweeted in response to the news. "Victoria announced on-the-spot fines of $240 for indecent language. Suddenly my [comedy festival] show is going to cost me a lot more next year."

Gold Logie winner Karl Stefanovic also tweeted his outrage. "Just [heard] the government wants to fine people for swearing. That's bullshit."

Melbourne International Comedy Festival director Susan Provan said she was taking a wait-and-see approach. "We at the Comedy Festival will be waiting with bated breath for news on what does and does not constitute swearing," she said. However, she added that the festival may need to consider hiring people "with bleepers in all areas of our activity".

Facebook pages decrying the move have already sprung up, with such whatever-can-they-mean-by-that titles as "F You Baillieu - No swearing fines for Victoria" and "On the spot fines for swearing in public are f---ing f---ed" (that's my decorum, not theirs).

The Baillieu government is pitching this as part of its ever-expanding law-and-order agenda, but the cynically inclined might wonder if it is not also a blatant revenue-raising exercise. Given the difficulty of successfully prosecuting someone for swearing (or, more broadly, offensive language) in court, this is by and large money the government would not otherwise have had.

To date it's not a huge amount - in the 2009 and 2010 financial years, 793 people in Victoria were fined for indecent language - but that was during a trial period only. Those figures could climb when it becomes official.

But it's not just the money grab that has people concerned, it's the scope of the offence and the arbitrariness with which it might be perceived.

Here are just a few of the ways an average Victorian might fall foul of the campaign against foul language.
  • Under the definition of "public place" in the Act, swearing is illegal on any public highway, road, street or bridge, which is bad news for frazzled motorists unlucky enough to have a twitchy policeman as a passenger.
  • It is also illegal in any "race-course, cricket ground, football ground or other such place", which spells trouble for the Collingwood cheer squad but may come as welcome news for AFL match officials (aka "you f---ing idiot, umpire")
  • Also out of bounds is any "wharf, pier or jetty", which means fishermen may need to call upon some fresh words when dealing with tangled lines, lost hooks and the one that got away.
  • Swearing is also prohibited in "any public hall, theatre or room while members of the public are in attendance". Whoops. There goes the next Malthouse season.
  • Oh, and swearing is not permitted at "any licensed premises". Frankly, a pot without a potty mouth is just un-Australian. It's enough to make you wonder what's the point in even going out?
Bizarrely, while a police officer is the sole judge of what might constitute offensive language, he or she doesn't actually need to hear the language in question. In theory, an offended member of the public could hare off to the local station and urge Constable Plod to attend to the most pressing matter of some Tourette's-afflicted pedestrian swearing his way up the street. Given the difficulty your average burglary victim has in rustling up police attendance at the scene of the crime, good luck with that.
    Yes it's mad, but it does give rise to some philosophical pondering. If a tree falls in a forest and you say "f--- that was close" but no one was there to hear you, did you actually swear? Hmmm.
    The move does have serious civil liberty implications, says Professor Spencer Zifcak, president of Liberty Victoria. The problem lies in the degree of discretion the change gives to individual police officers to interpret what remains an ill-defined notion.

    "In practical terms, Policeman A may be offended and issue a fine on the spot, while Policeman B may not. Because the definition of offensive language is so wide and police discretion is so wide what will happen is you will get an arbitrary application of the law. We’re willing to sacrifice a bit of efficiency to ensure a fair hearing," he says.

    In fact, there is little agreement even on what constitutes "offensive" language in 2011, as distinct from 1966. One man's meat is another man's cruelly harvested animal flesh, as it were.
    In a much-noted ruling in 2002, NSW magistrate David Heilpern observed of the F word that "one would have to live an excessively cloistered existence not to come into regular contact with the word, and not to have become somewhat immune to its suggested previously legally offensive status".

    Victorian Attorney-General Robert Clark acknowledged yesterday that community standards relating to profanity had changed, but said the government still wanted to send a message that bad behaviour in public would not be tolerated.

    "Victorians ought to be able to go out at night, to be able to go out with their families and not be ... offended and have their trip made miserable by the obnoxious and offensive behaviour of louts," Mr Clark said. "We are going to give the police the power to issue infringement notices to send the message that this sort of obnoxious and antisocial behaviour will not be tolerated."