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86
Police Services responses to offensive language
There was evidence that actions taken had contributed to ‘a massive decrease’ in the use of offensive language charges over time, however Aboriginal people remain over-represented among those charged.
We remain concerned about discretionary use of these charges in relation to public intoxication and other situations where it may be used as the basis for ‘up-charging’.
Aboriginal Justice Caucus Assessment
Recommendation 86 intended that police officers should not use offensive language as a default excuse to arrest someone, especially where the interaction is initiated by police. Police Services should also monitor the use of these charges.
Actions taken partially align with the intent of this recommendation. Use of the charge of offensive language is reported in statistics published by the Crime Statistics Agency (CSA). Although data is available through the CSA, it is not monitored on an ongoing basis. The data indicates that offensive language in circumstances of interventions initiated by police does not normally lead to arrest or charges being laid. Victoria Police are exploring options to publish this data on a regular basis through the Victoria Police Aboriginal Portfolio Reference Group and Aboriginal Justice Forums.
There was evidence that actions taken had contributed to ‘a massive decrease’ in the use of offensive language charges over time (from 1,034 offences in 2015-16 to 342 in 2024-25), however Aboriginal people remain over-represented among those charged, accounting for 3.5 percent of the cohort in the 2024-25 period.
Recommendation 86 remains relevant. We remain concerned about discretionary use of these charges in relation to public intoxication and/or other situations where it may be used as the basis for ‘up-charging’:
People might be a bit boisterous in a venue and come to the attention of police, and then all of a sudden, because the person's intoxicated then the language comes out, and then it escalates from whether it was abusive language into something else. (Bobby Nicholls, Chairperson, Hume RAJAC)
When a young person is picked up one of the so-called charges could be offensive language, but police may lump other things on top of that. Then when they get to the courts, there are negotiations and offensive language might be struck out but they’re gonna go on with the more serious charge. (Bobby Nicholls, Chairperson, Hume RAJAC)
I would say it is a concern, because of that hamburger with the lot approach. It’s a charge that can be easily used and lumped in with everything else. (John Gorton, Chairperson, Grampians RAJAC)
Further efforts to implement Recommendation 86 in terms of closer monitoring, could potentially improve Aboriginal justice outcomes and shed light on the situations in which people are charged for offensive language.
Are these charges straight up where police walk up and say you know you're swearing in a public place, and then it escalates and you get charged? Or have they been looked at to see if they’re part of a police discussion with a person about something else? (Merle Miller, VAEAI)
Priority for Further Work:
Moderate
Relevance and potential impact | |||||
|---|---|---|---|---|---|
Low (0-2) | Moderate (3-4) | High (5-6) | |||
Extent of action taken and evidence of outcomes | High (5-6) | ||||
Moderate (3-4) | |||||
Low (0-2) | |||||
Potential Actions for Further Work
Enhanced monitoring of offensive language charges
Examine data on the use of offensive language charges to understand whether they are typically single charges or combined with others.
Background
Recommendation 86 of the Royal Commission into Aboriginal Deaths in Custody (RCIADIC) follows discussion of the decriminalisation of public drunkenness, in which it notes that the practice of charging intoxicated persons with ‘public order’ offences such as offensive language, disorderly contact and others had the effect of ‘re-criminalising public drunkenness.’ The Commission noted the importance of police addressing this issue and establishing appropriate monitoring mechanisms to ensure that ‘persons who might otherwise have been apprehended for intoxication are not instead arrested and charged unnecessarily with other offences.’
Actions Taken Since Last Review
Victoria Police
In 2023, Victoria Police assessed Recommendation 86 as partially implemented noting:
The use of the charge of offensive language is reported in crime statistics published by the Crime Statistics Agency (CSA). The Victorian Government notes that discretionary implementation exists and that the individual circumstances of the offence are taken into account, with most offences not escalating beyond initial intervention. Although data is available through the CSA, it is not monitored on an ongoing basis. Data indicates that offensive language in circumstances of interventions initiated by police does not normally lead to arrest or charges being laid.
Work is ongoing to implement this recommendation in light of Yoorrook Justice Commission hearings. Victoria Police are exploring options to publish this data on a regular basis through the Victoria Police Aboriginal Portfolio Reference Group and Aboriginal Justice Forums.
Impact
Outputs
The Crime Statistics Agency regularly publishes data showing the number of offensive language offences allegedly committed by people in Victoria. These can be accessed at www.crimestatistics.vic.gov.au.
Data on the number of alleged offensive language offences is also available by Aboriginal and Torres Strait Islander status.
Outcomes
Victoria Police
There has been ‘a massive decrease’ in the use of offensive language charges over time (from 1,034 offences in 2015-16 to 342 in 2024-25), however Aboriginal people remain over-represented, accounting for 3.5 percent of those charged in the 2024-25 period.
Victorian Aboriginal Legal Service
The Project Team sought the views of lawyers at VALS on this recommendation. They were not aware of many instances where charges of offensive language were used to initiate police action against their clients.
Community Views
Victorian Aboriginal Legal Service
Racism is particularly prevalent in Victoria Police, manifesting in denial of Aboriginality, over-policing of Aboriginal Communities, over-representation of Aboriginal people in police custody, arresting Aboriginal children and young people rather than issuing a summons, use of force and explicit racial abuse against Aboriginal people.