Danny Lim swearing case highlights issues with swearing and the law

Danny Lim swearing case highlights issues with swearing and the law

Danny Lim swearing case highlights issues with swearing and the law

Updated 5 September 2017, 19:15 AEST

Thousands of Australians are criminally penalised for language offences each year.

It wasn't your usual legal victory.

But Danny Lim — the cheerful septuagenarian who in 2015 wore a sandwich board labelling former prime minister Tony Abbott an unkind euphemism for female genitalia — was cleared of offensive conduct last week.

"I see it more as a pun, a play on words," Mr Lim, a former councillor in the Sydney suburb of Strathfield, said.

Warning: This article contains coarse language.

Mr Lim's District Court challenge and the legal system's unintentionally comical efforts to remain straight-faced captured national attention.

But aside from the media circus, Mr Lim's case highlights how tensions can arise when the legal system seeks to regulate something as nebulous as language and offence.

A disproportionate effect on the vulnerable

In the 12 months to March 2017, New South Wales recorded some 3,492 criminal incidents relating to offensive language.

According to Luke McNamara, a professor of law at the University of New South Wales, over 90 per cent of these cases dealt with two obscenities, which begin with f and c.

As four-letter words go, these are costly ones: while the maximum fine a magistrate can impose for such an offence is $660, police in NSW have the power to issue an on the spot fine of up to $500. For Professor McNamara, this is both curious and disturbing.

"I'm concerned that we continue, in the 21st Century, the criminalisation of particular words," he said.

These laws also have what Professor McNamara describes as "a significant class dimension".

The acts surrounding obscene language generally regulate behaviour in public places, meaning the homeless are more likely to be affected.

There is a racial component, too: in the twilight of the Royal Commission into Aboriginal Deaths in Custody, a regional report noted that such language charges had become, in Australia, part of an "oppressive mechanism of control" over Indigenous people.

Of the 1,500 language offences resolved before NSW local courts in 2016, some 35 per cent involved an Indigenous defendant.

In Professor McNamara's view, this reflects the broader tensions between police and disadvantaged members of society.

Mr Lim's lawyer, Bryan Wrench, agrees.

"We've seen disadvantaged groups where [police] have used this power to cause the arrest when it didn't need to be in the first place," he said.

'Troubling' that intent doesn't matter in public order offences

As a nation, Australia has always been censorious — not content with banning the importation of Lady Chatterley's Lover, we even banned a book chronicling the obscenity trial that followed its publication.

As late as 1976, one Tasmanian magistrate held that "any person who utters the word 'fuck' commits an offence."

By the 1990s, this word-based puritanism seemed on the wane: a New South Wales judge argued that "shit" was no longer offensive, and that the district court did not exist to protect "those who have not yet travelled through their anal sensitivities".

Most public order offences are, as they say in the legal textbooks, "inevitably vague and open-ended".

In Australia, there's an extra complication with language offences: intent. If you don't mean to offend someone, are you still culpable for any offence caused?

This line of inquiry was tested during the Christmas shopping season of 1997, when Daniel Eamon Pfeifer, a South Australian teenager, wore a shirt depicting The Dead Kennedys, one of his favourite punk rock bands.

On one side of the shirt, in reasonably sized type, was a Dead Kennedys song title: "Too Drunk To Fuck".

Pfeifer said he had worn the shirt on previous occasions and had not experienced any adverse reaction, and that no offence was intended.

On appeal, the Supreme Court of South Australia found that intent or knowledge was not "an essential element" of the offence. Pfeifer had, by wearing the shirt, accidentally committed a criminal offence.

For Professor McNamara, that judgement is troubling and "arguably inconsistent" with the broader scope of public order offences.

"To engage in offensive conduct, the aim should be to achieve anger, resentment, disgust or outrage," he said.

Criminal law, he believes, should not be the weapon of choice for public order offences.

"It's far too blunt, it's too punitive. It shouldn't be the first tool," Professor McNamara said.

Freedom of speech

For much of the last few years, public attention on legal reform has focused on a specific section of the Racial Discrimination Act.

Conservative politicians and commentators backing the repeal of Section 18C said it was essential in preserving freedom of speech, or stopping the march of political correctness.

For Professor McNamara, that outrage misses the point.

"There's an enormous blind spot here," he said.

"Nobody is talking about the fact that tens of thousands of times a year across the country, a person is being criminally penalised — not just invited to a conciliation hearing — for using a swear word, on the basis that that word is offensive."

That's certainly the view of Mr Lim and his 15-year-old chihuahua mix, Smarty.

"You know why I'm pleased? I did it for the people of Australia. It's freedom of speech," he said.