What is offensive? There is no singular definition of offensive under NSW law. The NSW Summary Offences Act does not define the term but rather alludes to offensive behaviour as language and conduct which is offensive and takes place in a public place in view and hearing of the public. What constitutes offensive depends on an interpretation of various common law sources. The leading common law reference for conduct or language that is criminally offensive is Worcester v Smith: something ‘calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person.’ This pseudo definition raises the following questions regarding acceptable community standards and the oft discussed reasonable person: what and who is a reasonable person, and whose emotional reaction is the standard by which our community values should be delimited? Is the reasonable person reasonable by according to whom? Is the State arrogating morality, dictated by the mores of the law-making classes and their front line enforcers? If as in another common law reference, Ball v McIntyre, a reasonable person is reasonably contemporary, then what would be considered offensive is dependent upon the the point in time that it takes place.
Sweeping police powers provide the perfect backdrop against which arbitrary arrests occur when police are appointed as moral judges of what constitutes acceptable behaviour, in essence, therefore, as guardians of morality, dictating what is offensive language or conduct, something which, in the case of R v Danny Lim has been proven to be at odds with community standards. This morality guardian role gives police undefinable and problematic power of sanction and suppression over sacrosanct freedoms such as the right to protest and to free speech which it should not be allowed to have. The power to break up otherwise peaceful protests because members of the police force find themselves offended by commonly used parlance and by the physical appearance of an individual is, without more, fascism.