Cornish, Andrew --- "Public Drunkenness Laws in Australia" [1988] AboriginalLawB 57; (1988) 1(35) Aboriginal Law Bulletin 4

• Public Drunkenness Laws In Australia
• Quotes

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Public Drunkenness Laws in Australia

by Andrew Cornish

Being drunk in a public place first became a crime in England in 1606 and was one of the more tawdry bits of legal baggage that the British brought to Australia 200 years ago. The original intention of the law was to keep the lower classes sober and under control so that the wheels of agriculture and industry could keep turning, and to protect the sensibilities of the upper middle classes.[1] From the outset, the law set harsher penalties for repeated offenders ("drunkards" as opposed to "tippiers"), and in both cases fines were imposed. After 1872 imprisonment became an alternative, and a distinction was drawn between being simply drunk and being drunk and disorderly, with the latter offence usually attracting a more severe imposition.

The laws of the Australian states after federation everywhere followed the model of regarding public drunkenness as a crime, but never made itillegal to be drunk in private. This remained the case for most of the twentieth century. In the 1970s moves were made in some states to change the way of dealing with public drunkenness in response to various criticisms which had been put forward. The most telling points against the offence were that it had an inherent class bias, was a victimless crime, that the penalties neither deterred nor rehabilitated but often reinforced the behaviour, and that the processing of offenders through the criminal justice system was a squandering of scarce resources.[2] From the late 1970s onwards, new legislation was introduced in the NT, NSW and SA, and I shall discuss these changes below.

The remaining states continue to regard drunkennes in public as criminal and impose both fines and gaol sentences. In WA, s53 of the Police Act 1892-1982 imposes a fine or imprisonment for being drunk, and increases the penalty for a subsequent conviction. Section 65(6) of the same Act makes it a crime to be an habitual drunkard, defined by three convictions for drunkenness in the previous twelve months, and imposes a stiff fine or up to six months in gaol for the offence. No behaviour other than simply being drunk in a public place is required to render a person liable under these sections.

Victoria lists three offences in its Summary Offences Act Section 13 makes it a crime to be drunk in public and allows for the detention by the police, while s14 covers the offence of being drunk and disorderly. The crime of being an habitual drunkard is defined in s15 as having had three convictions for drunkenness in the past twelve months, the same as the WA legislation.

Queensland legislated against public drunkenness under the Liquor Act 1912-1985, an Act mainly concerned with controlling the sale of alcohol. Section 81 makes it an offence to be drunk or drunk and disorderly in public, providing for police detention and a fine, but the penalty is the same for both kinds of behaviour. Section 64 of the Act empowers a court to declare someone an habitual drunkard after three convictions within twelve months, and to forbid the sale of alcohol to such a person. Being declared an habitual drunkard makes a person liable to more severe penalties for disorderly behaviour under s4 of the Vagrants, Gaming, and Other Offences Act 1931-1978, including up to six months' imprisonment.

Tasmania is the other state which continues to make public drunkenness a crime punishable by fine or imprisonment. Section 4 of the Public Offences Act makes it an offence to be either drunk and incapable or drunk and disorderly, and doubles the penalty where someone has a prior conviction within the last six months. Strictly speaking, Tasmanian legislation does not cover the whole range of simple drunkenness in public, as it is theoretically possible to remain outside the law if you are drunk and 'capable' in public, but it is not difficult to imagine the problems in raising such a defence to a charge under s4 after detention in police cells overnight.

The four states of WA, Victoria, Queensland and Tasmania continue to treat people who are drunk in public as criminals, despite cogent arguments that such an approach is wrong-headed and wasteful.[3] Victoria and Tasmania also make it a separate crime to be drunk and disorderly, despite the fact that such conduct is already covered by offensive behaviour legislation and is therefore unnecessary duplication. Supreme Court judgements have made it clear that imprisonment is not an appropriate sentence for drunkenness[4], but gaol remains an option in four of Australia's states and people still needlessly end up in prison.

To be fair to Tasmania, they did have a crisis of conscience over the issue when a parliamentary select committee examined a number of victimless crimes, and public drunkenness in particular. They pointed out the redundancy of the drunk and disorderly offence, and regarded the use of the criminal law against people who were simply drunk as inappropriate. The committee was attracted by proposed reforms in South Australia, and recommended abolition of the drunk and disorderly offence, and replacement of the drunkenness offence by a system of detention in sobering-up units, which combined both medical and welfare notions of the problem.[5] That was in 1978, but ten years down the track, nothing whatever has been done to act upon these recommendations. Section 4 of the Police Offences Act was in fact amended in 1987, but only to make the language of the legislation clearer, not to question its absurdity.

The Northern Territory gave effect to the first legislation to "decriminalise" public drunkenness. The Police Administration Act 1978 ss128-133 allows for detention of a drunken person by police until the person is sober, but there is provision for release to someone who can provide "adequate care" if the detainee agrees (s131), and in any case after six hours' detention the person must be taken before a justice, who may order release or further custody (s132). A detainee may also at any time request an appearance before a justice in order to gain release, though this is subject to it being "reasonably practicable" (s133). No specific provision is made for recording a detention, and although no criminal charge is brought, there is nothing to indicate whether a detention under the Act may be listed on a detainee's criminal record if one exists. The problem with this legislation is its lack of safeguards. It is difficult to see how release under s131 can be effected without a requirement for police to contact a detainee's lawyer, relatives or friends. It would also be hard in practice to assess whether a request under s133 was ever made if the person remains in detention for up to six hours and is then released. Instead of taking public drunkenness out of the realm of the criminal justice system, the "reform" in the NT has resulted in an unsupervised system of police detention without trial that has inadequate safeguards under law.

Aborigines in Alice Springs attempted a voluntary pick-up service under this legislation which ran into stiff police opposition and proposals were made to return to previous legislation, but the law has remained in force.[6] In 1982 a Bill was introduced to set up an Intoxicated Persons Act similar to the legislation in South Australia and New South Wales containing a section allowing for phone calls to be made and a breath test of alcohol level on demand, as well as a requirement for special records of detentions to be kept. However, the Bill was unsuccessful, and the Northern Territory laws continue to give police a wide and largely untrammeled power of detention.

In New South Wales the Intoxicated Persons Act 1979 came into effect early in 1980 and was based on a model which envisaged detention by welfare agencies. The legislation did allow for detention by police, but also authorised people (basically approved welfare groups), in either a police station or a proclaimed place (s5), and the various welfare hostels and homes were declared to be proclaimed places under the legislation, but it took several years for a sufficient number of these to service areas of the state with the highest need, so that police cells were still commonly used. Even where alternative places were established, police still preferred to take detainees to police cells[7] and in 1985 the legislation was amended to provide that police should not detain drunks in a lock-up unless the options of other proclaimed places, or taking the detainee home, had been tried first (s5(1)).

Detention is allowed for up to eight hours, or until the person is sober, whichever occurs first, and there is provision for releasing a detainee to a "responsible person". Problems arose with these provisions[8] and the amending legislation of 1985 now requires police to inform a detainee of the "responsible person" provision and to give them the opportunity to contact a friend or relative in order to secure release. Records must be kept of detentions under the Intoxicated Persons Act, so that both general patterns of detention and the circumstances of particular cases can be monitored.

The New South Wales Act appeared to be an improvement of the NT legislation, in that it looked forward to decreased police detention and greater use of welfare agencies which were assumed to be better suited to dealing with intoxicated persons. However, most people continued to be held by police, and I have argued elsewhere that the welfare agencies involved also tended to adopt either a detention model similar to the police, or a medical model, assuming that drunkenness was the same as alcoholism[9]. Neither approach is appropriate, and neither overcomes the fact that someone may be detained against their will simply for being drunk. The 1985 changes to the legislation may mean that more detainees will be able to be released to friends or relatives and not be detained, which would be much closer to genuine decriminalisation, but it remains to be seen how well these paper reforms have translated into practice.

SA passed its legislation on public drunkenness in 1976, but it did not come into effect until September 1984, when it was felt that sufficient alternatives to police detention were in place.

The Public Intoxication Act 1984 allows for police apprehension of someone who is drunk and unable to take proper care of themselves, and for their detention in a police station, sobering-up centre, approved place, or their return home (s7). Police detentions may last up to ten hours, and if the person is still drunk, they must be transferred to a sobering-up centre (s7(4)). Total detention must not exceed 18 hours (s7(5)). The legislation does provide for a detainee to have a reasonable opportunity of contacting a lawyer, relative or friend, and for release to someone "able and willing to care properly for that person" (s7,(8-9)). A specific offence is created of ill-treatment or wilful neglect of a detainee (s11) and the way is left open for a civil action against the crown over a detention, though not against the specific police officers or other agents involved (s13).

Like the NSW legislation, the Act in SA is a form of compulsory detention without trial for people found drunk in public, with the aim of shifting responsibility onto welfare agencies but retaining a large measure of police involvement in the process. Bird has argued that in SA, as elsewhere, being detained as an intoxicated person depends more on the person than the fact of intoxication, and that in the face of police discrimination against Aborigines and the poor, and continued police involvement under the South Australian legislation, there was likely to be little change in events on the ground.[10]

In Australia, then, we have two contrasting approaches to public drunkenness. In the majority of states, the behaviour remains a crime, with governments unwilling to set their minds to the task of reform, and uncaring about the thousands of people who continue to parade meaninglessly through the courts, coughing up a few dollars in fines or wasting some of their life in gaol. It is a squalid area of the law, and one that weighs heavily on the range of people that some governments would apparently like to forget. Three governments, to their credit, have attempted to tackle the issue, but the results have been mixed. In each of these three states, a system of detention without trial has been instituted, in NT under the aegis of the police, and in SA and NSW meted out between the police and welfare agencies. Nowhere has the legislation really addressed the issue of distinguishing between drunkenness and alcoholism, and so the approaches taken have in each case muddled the two concepts.

The laws against public drunkenness in Australia are of special concern to Aborigines. Reports issued by the Office of Crime Statistics in SA and the NSW Bureau of Crime Statistics and Research regularly show a depressingly familiar pattern of these laws being used far more often and far more punitively against Aborigines, and qualitative studies have shown that they are one of the major instruments of discrimination.[11] The prospect of further major reform in public drunkenness legislation in the near future looks bleak, given the low priority of this issue for governments. So while it is still necessary to put arguments and proposals for reform to politicians, there is also an opportunity and a need in this area for people to develop strategies for looking after each other in those situations where they may become vulnerable to arrest or detention. In the face of these often stupid or inappropriate laws, community action is necessary in order to re-assert some control, over people's lives in the face of a barrage of government-licensed drug dealers who sell alcohol, and the police, and welfare agencies constrained by poorly conceived government programmes, who follow in their wake.

Andrew Cornish is doing a Phd at Australian National University

Quotes

One further point I would like to put before the Commission is that non-Aboriginal people should take the time to understand Aboriginal drinking patterns. Until 20 years ago Aboriginal people were not allowed to drink in hotels anywhere. This was under the notorious "Protection Act" which we called the "Dog Act". For this reason if we wanted to drink we would have to buy large quantities of alcohol and drink it quickly before being caught. We would drink in the open air, on river banks and parks. We would have to get "runners" to buy the drink. These were white people who risked being arrested themselves for getting us alcohol. This pattern of drinking large amounts in a short time period has been handed down from one generation to the next. River banks are chosen because they are out of sight of police and away from the busy part of town. It is a long process to change these things.

John Kirk, Propietor Moree Aboriginal Sobriety House,

Statement to the Royal Commission into Aboriginal Deaths in Custody

Mr Coorey, counsel for the Murray family, questioned Constable Fitzgerald:

Constable, I just want to ask you again about Eddie Murray. Did you ever say to Constable Parker that Eddie Murray was a bit of a trouble maker"

I may have told him, yes.

You would consider he was a fellow that you would classify that way, wouldn't you?

Only when he had alcohol in him.... That's the same with most Aboriginals when dealing with them.

They are mostly trouble makers when they've got alcohol?

The same with white people, the same thing.

Royal Commission p4048 transcript of Eddie Murray’s case

Detention under IPA in WeeWaa 1981; 141 total, 87 Aboriginal.

The rate of detentions for Aborigines in the North Western statistical division was 1266 per thousand of Aboriginal population, or 93 times the overall rate for the state.

1981-1982 Bureau of Crime Statistics

The Committee to Defend Black Rights submits that the present legislative scheme for dealing with public intoxication has been, and continues to be, used for the purposes of harrassment, surveillance and over-policing of Aboriginal communities and persons, and indeed provides the precondition and opportunity for an unnecessary level of police intervention in the lives of Aboriginal persons. The high level of police intervention in the lives of Aborigines, which this legislation facilitates, perpetuates the social and historical role of the police force in both the prosecution and regulation of the lives of Aborigines.

Submission to the Royal Commission into from the Committee to Defend Black Rights in the case of Eddie Murray.

Police are charged with the maintenance of order and discipline and in the Aboriginal towns, this order is of a quite specific kind and the Aboriginal community occupies a quite specific place within it. It is not simply a matter of enforcing community standards as if some consensus existed with respect to these standards. Aborigines are often regarded as a 'problem' in so far as they are actively unaccepting of 'their place' in this order. It is at such points and not simply where they are guilty of descrete criminal acts that they run up against the law.

NSW Anti-Discrimination Board Report on Street offences June 1982.

Mr Eames put the following proposition to Constable Parker:

Well, let me put it to you Mr Parker, is it a fair assumption to say that the situation in WeeWaa was such that a telephone call from the publican from either of the hotels saying that a particular Aboriginal person was causing trouble, was enough for the police at that time to lock the person up?

It could have been, yes.

Yes; and was that the way the town operated?

I had been there only a short time at that stage. I believe after a while that was the situation, yes.

Muirhead Royal Commission p3197 of the transcript of Eddie Murray’s case

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[1] G A Austin Alcohol in Western Society from Antiquity to 1800: A Chronological History ABC Clio Inc, California 1985; pip-1711,192-3,196.

[2] M R Goode "Public Intoxication Laws: Policy, Impolicy and the South Australian Experience" Adelaide Law Review (1980) vol.7, pp253-273.

[3] S J Egger et al "Public Drunkenness: a case history in decriminalisation" in M Findlay et al (eds) Issues in Criminal Justice Administration George Allen & Unwin, Sydney 1983.

[4] Gollan v Samuels (1973) 6 SASR 452; Murphy v Watsnri (1975) WAR 23; Taylor v Beames (1983) 7 Ab Law Bull. 8; Brown v Nunn (1984) WAR 186.

[5] Parliament of Tasmania Victimless Crime Report of Select Committee of the House of Assembly, Govt Printer, Tasmania 1978; pp24-31.

[6] Egger et al Op Cit p34 states that the legislation was repealed, and I made this same error in an article in 1985 (see note 8). The proposed measures were not adopted, despite a fairly strong backlash from the white community.

[7] Egger et al Op Cit p37

[8] A Cornish, "Public Drunkenness in New South Wales: From Criminality to Welfare" ANZJC (1985) vol 18 no 2, p76 ibid, pp7880

[9] ibid., pp 78-80

[10] G Bird, "Field Work in South Australia" in K M Hazlehurst (ed) Ivory Scales: Black Australia and the Law, NSW Uni Press, NSW 1987, Ch3.

[11] E Eggleston Fear, Favour or Affection ANU Press, Canberra 1976, pp226-234; G Bird, Op Cit.