Cunneen, Chris --- "Update: Moves to Recriminalise Public Drunkenness in New South Wales" [1991] AboriginalLawB 11; (1991) 1(49) Aboriginal Law Bulletin 11

• Moves To Recriminalise Public Drunkenness In New South Wales

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Moves to Recriminalise Public Drunkenness in New South Wales

by Chris Cunneen

The Local Government (Street Drinking) Amendment Act (NSW) 1990 was passed by Parliament in December 1990. The amendment clarifies Local Government powers in relation to regulating the consumption of alcohol in specified public areas. It allows for the creation of 'alcohol-free zones' by Local Government resolution. Under section 512K(1) a council may declare "a zone consisting of one or more public roads or parts of roads within the area to be an alcohol-free zone". Section 512K(2) specifies the conditions under which such a resolution may be made. The maximum penalty for an offence against the Act is $20, payable upon receipt of an infringement notice Section 512P specifies that no person is to be imprisoned or detained in a detention centre for fine default.

The amendments were passed through NSW Parliament with the support of the ALP Opposition. It was noted that a mission from the Australian Section of the International Commission of Jurists had recently visited north west NSW and that, as a result of the visit, were opposed to the introduction of the legislation. It became clear in the course of the Parliamentary debate that the amended legislation was specifically designed to meet the `needs' of western and north western NSW Shires in their desire to regulate Aboriginal drinking in public places. Such Shires have none, or at best token, Aboriginal representation on council.

Councils in Bourke, Brewarrina and Walgett had previously used Section 249(k) of the Local Government Act to prevent public drinking. However, a successful challenge to powers under the Local Government Act was made by the Western Aboriginal Legal Service in a case in Bourke. The Local Court Magistrate found that the ordinance was ultra vires the Local Govemment Act. As a result, pressure was placed on the Government to amend the Local Government legislation, giving councils the power to regulate alcohol consumption in public areas.

The Local Government ordinances which prohibit public drinking are almost exclusively used against Aboriginal people in rural areas. The conscious design of such intervention is to remove Aboriginal people from the streets and parks. It is not the drinking per se which is defined as the problem but rather the public location of Aboriginal people. Indeed, in Brewarrina and Walgett designated drinking areas have been allocated away from main streets where Aboriginal people are `allowed' to drink without harassment. In Walgett the `designated' area is set dangerously on the edge of a levee bank by the river. With virtually no amenities, the area was described by Commissioner Wootten (from the Royal Commission into Aboriginal Deaths in Custody) as a `miserable place'. During a public hearing (28 February 1990) by the Royal Commission, in Walgett, it was revealed that 20 individuals had been charged with breaching the Local Government by-law under the previous section 249(K). Nineteen of those charged were Aboriginal. The one non-Aboriginal person lived and associated with the Aboriginal community'.

Commissioner Wootten in his Report of the Inquiry into the Death of Clarence Alec Nean noted that the use of Local Government regulations had "the potential to negate to some extent the decriminalisation of public drunkenness, and... to do so in a racially discriminatory way"

Notes:

1. See Cunneen, C. (1990) Aborigines and Law and Order Regimes', Journal for Social Justice Studies, Special Edition Series, Contemporary Race Relations, Vol. 3, pp.37-50.

Chris Cunneen