Offensive conduct and offensive language in NSW: sections 4 and 4A of the Summary Offences Act.

Two offences, one key word.

The Summary Offences Act 1988 (NSW) creates two related public order offences. Section 4 is offensive conduct. Section 4A is offensive language. Both require the same setting, being in, near, or within view or hearing from a public place or a school. Both turn on whether what the person did or said was offensive. The difference is that section 4 covers behaviour and section 4A covers words, and the penalties differ.

Because the offences are minor, people tend to treat them as not worth fighting. That is often a mistake. The whole case usually rests on the meaning of one word, and that word is defined more narrowly than most people assume. A charge that seems obvious on the police account can fall apart once the legal test for offensive is applied to the facts.

What offensive conduct is: section 4.

Under section 4, a person is guilty of offensive conduct if they conduct themselves in an offensive manner in, near, or within view or hearing from a public place or a school. The maximum penalty is 6 penalty units or 3 months imprisonment. A prison term is rare for this offence, but the section carries it, which is one thing that separates offensive conduct from offensive language. Section 4 also provides a defence: it is enough to answer the charge if the person satisfies the court that they had a reasonable excuse for the conduct.

What offensive language is: section 4A.

Section 4A makes it an offence to use offensive language in, near, or within view or hearing from a public place or a school. The maximum penalty is a fine of 6 penalty units. Section 4A does not carry imprisonment at all. A court can also make a community correction order with a condition to perform community service, in place of a fine, under the community service provisions. So the worst realistic outcome for offensive language is a fine or unpaid work, not gaol.

What offensive means in law.

This is where these charges are won and lost. The word offensive is not defined in the Act, so its meaning comes from case law. The long-standing test, drawn from Ball v McIntyre, is that conduct or language is offensive if it is calculated to wound the feelings, or to arouse anger, resentment, disgust or outrage, in a reasonable person. The reasonable person is not thin-skinned. They are reasonably tolerant and understanding, and reasonably contemporary in their reactions. Conduct that merely annoys, or that some people would dislike, does not meet the test.

Two points follow. First, swearing is not automatically offensive. Courts have long recognised that coarse language is common and that a reasonable person is not shocked by every four-letter word. Whether particular words are offensive depends on how, where and to whom they were said. Second, context is everything. The same words shouted at a child in a playground and muttered in frustration on an empty street are not the same case. The court looks at the whole of the circumstances, and that is the ground on which the defence is usually run.

Penalty notices, and the choice to go to court.

Police do not always take these matters to court. They can issue a criminal infringement notice, a penalty notice, on the spot. Paying it is not a conviction, and it ends the matter without a court date. That is convenient, but it comes at a cost. Paying the notice does not test whether the conduct or language was actually offensive. It simply accepts the outcome.

A person who does not accept the charge can decline to pay and elect to have the matter heard in court. That puts the prosecution to proof on the meaning of offensive and on the context. For a charge that rests on one contested word, that is often the stronger position. Whether it is the right choice depends on the facts and on what a court result would mean for the person, so it is a decision to make with advice, not on the footpath.

Defences, and how these charges are challenged.

The first line of defence is that the conduct or language was not offensive to a reasonable person. This is not a technicality. It is the heart of the offence, and it is frequently arguable. The second, for section 4, is reasonable excuse, which can take in provocation, a medical or cognitive condition, or another genuine explanation for what happened. The third goes to the setting: the conduct must have been in, near, or within view or hearing from a public place or a school, and that element has to be proved too.

These charges often arise out of a heated encounter with police or in a crowded place, and they are sometimes laid alongside more serious matters such as affray or common assault. When they are, how the whole incident is dealt with matters, because a plea on one charge can affect the others. Anything said to police in the moment can shape the case, so the guidance in our note on the police interview and the ERISP applies from the first word.

Primary sources: offensive conduct is section 4 and offensive language is section 4A of the Summary Offences Act 1988 (NSW). The meaning of offensive comes from Ball v McIntyre (1966) 9 FLR 237, searchable on JADE. Penalty notices for these offences are issued under the Criminal Procedure Act 1986 (NSW) and its regulation.

Common questions

What is offensive conduct under section 4 of the Summary Offences Act 1988 (NSW)?

It is conducting yourself in an offensive manner in, near, or within view or hearing from a public place or a school. The maximum penalty is 6 penalty units or 3 months imprisonment. Reasonable excuse is a defence. The conduct must be offensive to a reasonable person in its context, not merely rude.

What is offensive language under section 4A?

Using offensive language in, near, or within view or hearing from a public place or a school. The maximum penalty is a fine of 6 penalty units. Section 4A does not carry imprisonment. A court can order community service in place of a fine.

What does offensive mean in law?

From Ball v McIntyre, it is language or conduct calculated to wound feelings or arouse anger, resentment, disgust or outrage in a reasonable person, who is taken to be reasonably tolerant, not thin-skinned. Context matters, and swearing alone is not automatically offensive.

Can you get a fine on the spot for offensive language?

Yes. Police can issue a penalty notice for both offences instead of going to court. Paying it is not a conviction, but it does not test whether the conduct was offensive. A person who disputes the charge can elect to have it heard in court instead.

What is a reasonable excuse for offensive conduct?

Section 4 provides a defence where there was a reasonable excuse for the conduct. It depends on the facts, and can include provocation, a medical or cognitive condition, or a genuine explanation. The defendant raises it, and the prosecution must still satisfy the court the offence is made out.

Should you pay the fine or go to court for offensive language?

It depends on the facts and what a court result would mean for you. Paying ends it quickly but does not test the charge. Where there is a real argument the language was not offensive to a reasonable person, or there was a reasonable excuse, court can be the better path. Get advice before deciding.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 28 August 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

← Back to all news