Aboriginal Law Bulletin
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by Sarah James
The criminalisation of Aboriginal alcohol usage has been a significant feature of government intervention into Aboriginal social life, both historically and in contemporary times. From the overtly discriminatory prohibition laws enacted around the 1860s, to current legislative responses to Aboriginal drinking, the implications for Aboriginal people have been dire. As revealed by the Royal Commission into Aboriginal Deaths in Custody (RCIADIC), the continuing criminalisation of public drunkenness in several Australian jurisdictions is an issue of central relevance. Indeed, of the 58 Aboriginal people who died in police custody, 39 (68%) were detained for an offence or circumstances relating to public drunkenness.[1]
As a result of these findings, several recommendations were proposed to aid the diversion of drunkenness offenders away from the criminal justice system through a process of decriminalisation. Thus Recommendation 79 in the final report of the RCIADIC states "that in jurisdictions where drunkenness has not been decriminalised, governments should legislate to abolish the offence of public drunkenness"[2] However, despite this crucial recommendation, Victoria continues to treat public drunkenness as a criminal offence.
The research which forms the basis of this article revealed that even had the Public Drunkenness Decriminalisation legislation in Victoria been successfully passed in the legislative council, the ideals of decriminalisation would have been unsuccessful in practice.[3] It was discovered that activity occurring at the local government level with regard to public drinking ensures that Aboriginal people in Victoria will continue to be controlled by the state, despite any state-wide decriminalisation.
The study involved interviewing a sample of those local councils in Victoria which have enacted public drinking local laws under the legislative authority of the Local Government Act 1989 (Vic). (At the time of interview, 30 local councils had such local laws in operation. Twenty of these 30 participated in the interviews). The research centred around determining council perceptions of crime and drunkenness; understanding council rationale for enacting the public drinking local laws; analysing the role of local government in crime prevention strategies and correctly locating the importance of local responses to public drinking within the context of the state level approach of continuing criminalisation.
The results of the study have raised a variety of issues with respect to local government. Overwhelmingly, the findings serve to challenge current thinking which seeks to minimise the role and implications of local government in the area of crime prevention. Indeed, local councils have enormous powers under the Local Government Act, and these especially impact on the drinking activities of local constituents. Power exercised through the enacting of public drinking local laws reveals a clearly articulated interest by councils in 'controlling' the consumption and possession of alcohol, while simultaneously 'controlling' crime levels in the municipality.
Indeed, councils identify strongly as active instruments in the effecting of 'law and order' in the community. It is through this perception that council justification for enacting public drinking local laws is based. In formulating the objectives of the local law, council understandings of crime and drunkenness become crucial. The context in which these activities are perceived by councils as constituting a problem has direct implications for the structure, scope and targets of the local law.
Strong patterns in council responses emerged with respect to perceptions of crime and drunkenness. Both social phenomena were described as of concern to the authorities when taking place in public as opposed to private space. More specifically, street offences and street drinking were isolated as those activities requiring intervention by councils and police. Particular locations within the municipality were further defined as associated with public drinking and associated behaviour. These places predominantly included shopping centres, parks and reserves, and outside of hotels.
Certain periods of the year were also identified with peak anti-social behaviour. Councils located on coastal regions overwhelmingly complained of high levels of public drunkenness and street crime during Christmas and Easter holiday vacations. Interestingly, it appeared to be the activities associated with public drinking that councils raised concern about, in particular, the fear of potential crime which councils believed to be closely linked with the activities of drinking groups. The importance of being perceived as a law-abiding municipality was an equally crucial factor in understanding the widespread council dislike for scenes of groups drinking in public.
In response to these perceptions of crime and drunkenness, councils have increasingly sought the usage of the Local Government Act as a means of enacting public drinking local laws. The objective of the local law is to restrict the movements of these drinking groups in the desire for a 'safer' community. Individuals can be issued with an infringement notice if they fail to cease consuming alcohol in those places designated as 'off limits' by the local law. In practice, however, the local law serves to polarise the community on the basis of marginality. There is a clear placement of blame for these activities upon certain groups in the community. Young people, Aboriginal people and homeless people are overtly defined in this way.
Thus, the local law has been canvassed in direct response to the activities of these groups particularly. It is they who are held responsible for the undesirable drinking behaviour and associated street crime in the municipality. Whilst the drafting of the local law does not specify any group as the target of the legislation, in practice the implications for these marginalised groups are clear. It is they who predominantly occupy public space for economic and cultural reasons. Simply by frequenting public space in groups, these 'undesirable' sections of the community are inadvertently contravening acceptable council standards regarding the correct usage of this space.
Those councils which have relatively high numbers of Aboriginal people in the municipality were quick to deny that the local law was targeted at any group in particular. Interestingly, the 'anonymous' groups of people drinking in public that councils referred to as the source of great concern, were eventually identified in a number of ways as being Aboriginal. The underlying racism that pervades the justification for enacting the public drinking local law in these towns was evident throughout the study.
One important implication of the local law is the increase in power it gives the police. Through the local law mechanism, police have access to a very useful law enforcement tool. Under the existing state law, police can only arrest an individual for public drunkenness if drunkenness can in fact be proven. This restricts police somewhat in controlling the movements of so called 'undesirable elements!.
However, with the advent of the local law, police no longer have to prove drunkenness. Drinking in public is sufficient to warrant intervention under the local law. Thus the scope for increased surveillance of particular groups in the community cannot be understated. Indeed, the City of Ballarat stated that "the police reckon it's (the local law) the best tool they've got". Young people, Aboriginal people and homeless people, as targets of the local law, will be particularly disadvantaged as a consequence of its implementation.
The decriminalisation of public drunkenness was seen by councils as a threat to local government authority and the continuing existence of the public drinking local law. There was a widespread fear that decriminalisation at the state level might cause the local law to be inoperative. However, technically they are dealing with different issues and therefore the two laws can probably co-exist. The existing state law, under the Summary Offences Act 1906 (Vic), criminalises the act of public drunkenness, whereas the local law under the Local Government Act restricts the consumption of alcohol in public. Indeed, one need only to look at New South Wales to see that public drunkenness has been decriminalised under the Public Intoxicated Persons Act 1979 (NSW), yet at the local government level similar public drinking restrictions co-exist under the Local Government (Street Drinking) Amendment Act No.105 1990
(NSW). (See AboriginalLB 49/2,51/2, & 51\16-17.)
It is clear that the public drinking local law renders any state-wide decriminalisation only marginally effective in practice. Young people and Aboriginal people in particular can still be caught in the criminal justice net regardless of decriminalisation, through such means as fine default which can be an obvious consequence of the local law. Indeed imprisonment in prison and police custody for fine default is still used widely in many Australian jurisdictions. According to the Australian Institute of Criminology[4], 50% of sentenced prisoners received into prisons on a national basis were fine defaulters.
Victoria shows the most progressive figuress with a much lower percentage than the national statistic (9% in July 1993). However, "the sanction of imprisonment remains as the ultimate penalty for a person who fails to comply with alternative orders"[5]. Further, fine defaulters frequently spend time in police lock-ups. Whilst the Victoria Police Statistical Division would not disclose these figures, it was nonetheless acknowledged that detention in police custody is still used a lot for fine defaulters. It is clear that targeted groups will still be subject to the intense controlling mechanism of the state through the workings of the local law.
It is essential to modify the functioning of local government in order to ensure that any future public drunkenness decriminalisation in Victoria will successfully meet its ideals in the diversion of drunkenness offenders away from the criminal justice system. However, as a first step, it is still important to enshrine the Decriminalisation Bill in legislation. The now Attorney General, Mrs Wade, has expressed renewed interest in passing the legislation following appeals from the federal Minister for Aboriginal Affairs, Mr. Tickner.[6] However, without continuing pressure from community groups, this 'renewed interest' may amount to very little. Indeed, obtaining support from a non-partisan committee comprising representatives from local government, Aboriginal organisations, community legal centre, women's groups and politicians is one possible strategy through which to pass the legislation.
Assuming it is possible to decriminalise public drunkenness via the above mechanism, it is imperative that the functioning of local government be similarly addressed. Indeed it is essential to modify the scope of public drinking local laws if it is to be in line with the objectives of decriminalisation. Whilst it is possible to conclude that the local law should be abolished on the grounds of its unfair potential, there are in fact good grounds for proposing a more restricted model.
In some cases, it is valid for councils to be able to regulate public drinking. For example, the regulation of public space from a health and safety perspective is a legitimate application of the local law. That is, it is not inappropriate that around the local swimming pool or a particularly dangerous intersection, public drinking should be restricted. However, widespread restriction on the basis of a range of unfair and selective practices should be legislated as being beyond the legitimate scope of the public drinking local law.
The primary concern of councils and police regarding public drinking appears to be the 'undesirable' public behaviour of specified groups in the community. As stated, these groups are primarily 'groups of youths', and to a lesser extent, Aboriginal people. As a consequence, strategies should be aimed particularly at young people, except in areas of higher Aboriginal populations where strategies should incorporate Aboriginal people. If one accepts that the lack of other available space is a primary explanation for the congregation of groups on the street and in shopping centres, then strategies geared toward the providing of alternative public space are essential.[7] Whilst fundamental societal changes are necessary to address the real issues of poverty, homelessness and unemployment, the provision of community billiard halls and other social facilities would at least provide legitimate space for people to frequent and enjoy, without continual surveillance.
Whilst providing alternative public space for young people and Aboriginal people, it is important to address some of the safety issues about which councils have expressed concern. As revealed during the interviews, it is generally other activities associated with public drinking which councils refer to as the 'problem'. Fear of violence and other street dangers are the main concerns of 'members of the community'. By providing for better safety over perceived street dangers around hotels and shopping centres, this will at least demonstrate to councils that there is a recognition of certain fears of violence that exist in the municipality. This strategy diverts attention away from drunkenness as such, and concentrates on the associated issues so defined by councils.
These introduced safety measures could include the provision of better lighting around specified areas of concern throughout the municipality; the provision of buses outside hotels; arranging schemes of providing escorts for shoppers; and installing security systems. All these measures aim to increase community feelings of public safety, whilst simultaneously avoiding the necessity of creating unduly restrictive measures. Indeed, it is essential that the rights of disadvantaged groups be simultaneously protected. Councils should be provided with resources to fund these and other proposed strategies.
It is clear that local government has substantial powers under the Local Government Act to participate actively in crime prevention strategies. As demonstrated in this study, local councils are increasingly using these powers to enact public drinking local laws with the stated intention of controlling the public behaviour of 'undesirable' groups in the community. The implications of the local law serve to contradict the ideals of public drunkenness decriminalisation as recommended by the RCIADIC. That is, the objective of diversion from custody can be contravened at the local level through fine default following the non-payment of a local law infringement notice.
Further, the desire to reduce interaction and conflict between police and Aboriginal people will not be fulfilled, because of the legitimating power the local law provides police in the increased surveillance of Aboriginal and other targeted groups. This increased tension provides the potential climate for other charges such as offensive language and resisting arrest and is therefore a further avenue through which Aboriginal people can be fed back into the criminal justice system.
[1] RCIADIC, Interim Report, Australian Government Publishing Service, Canberra, 1988, p25.
[2] RCIADIC, National Report: Overview and Recommendations, Australian Government Publishing Service, Canberra, 1991, p49.
[3] See James, S., "We Don't Have the Aboriginal Problem - Local Responses to Public Drunkenness", BA Honours Thesis, University of Melbourne, 1992.
[4] Australian Institute of Criminology, Australian Prison Trends, No.206,July, 1993,p1.
[5] RCIADIC, Interim Report, Australian Government Publishing Service, Canberra, 1988, p21.
[6] "Drunkenness in Public May Be Decriminalised", The Age, Melbourne, 31-10-92.
[7] White, R., No Space of Tlu:ir Own: Young People and Social Control In Australia, University of Cambridge Press, Melbourne, 1990, p117
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