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by Susan Sheppard
The move to decriminalise public drunkenness in Australia began twenty years ago.
Five Jurisdictions have now done it (Northern Territory, New South Wales, South Australia, Western Australia and Australian Capital Territory),[1] two almost did (Victoria and Queensland) and one is still thinking about it (Tasmania).
Queensland now joins Victoriua in going cold on decriminalisation at the last minute. The Qld Cabinet announced the backdown in May, two years after making the first of a series of commitments to decriminalise in response to the recommendations of the RCIADIC.[2]
In explaining the Queensland Government's stance on public drunkenness, The Honourable Ken Hayward MLA, Minister for Health, identified the diversion of Aboriginal people from police custody as the main issue. The RCIADIC specified public drunkenness as "by far the most potentially significant area for achieving this aim",[3] but lamented the fact that, "... insofar as a reduction in police detention was one of the aims of decriminalisation, it has not been achieved to date" .[4] Hayward advanced the supposed 'failures' of decriminalisation as a reason for not decriminalising in Queensland.[5] He then asserted that there was no necessary link between decriminalisation and diversion from custody: "... you could have one without the other."[6]
Can diversion be achieved without decriminalisation? The Minister's Media Release states that "more appropriate alternative strategies" will be developed for dealing with people who are intoxicated in public. The Minister indicated that strategies would include "transporting home and referral to diversionary centres, implemented in a priority order".[7]
The following discussion provides a brief comparison, in the Queensland context, of decriminalisation in accordance with a preferred model on the one hand, and non-decriminalisation coupled with certain policy and legislative changes on the other. The benchmarks chosen for this comparison represent desired outcomes within broad general objectives of diversion from police custody and the safeguarding of rights.
Decriminalisation: Decriminalisation schemes universally provide for the 'management' of persons intoxicated in public, usually by conferring powers of apprehension and/or detention on police and, at times, others. The welfare of intoxicated persons and that of others affected by them, is, in certain circumstances, rightly a matter of concern, despite the philosophical imperative underlying decriminalisation that mere drunkenness does not constitute criminal behaviour. The issue is the extent to which intervention is justified.
A model scheme would entail the enactment of legislation justifying apprehension of a person intoxicated in public only where their behaviour presented a threat to him/herself or others and would place an onus on the person apprehending to consider less intrusive options first. The RCIADIC said intervention was justified only where an intoxicated person was incapable of taking proper care of him/herself or behaving in a manner likely to cause harm to others or damage to property.[8]
Powers of apprehension could be conferred on community workers, community liaison officers and community police, although community groups have indicated some reticence about exercising coercive powers.[9]
Non decriminalisation: Police would continue to be permitted to arrest in any situation where a person was intoxicated in public. Legislative restrictions on the power of arrest would be possible, although internal police regulation is likely to be more politically acceptable, if less effective. While police would obviously be the main enforcers, it would again be possible to empower community workers and others to arrest for drunkenness, perhaps by making them' special constables'[10] for this specicific purpose.
Decriminalisation: People apprehended could be diverted from police custody where other options were available and appropriate. These could include transportation home, release into the care of a responsible person or transfer to a sobering up centre. Alternative accommodation would not normally be appropriate for someone who was particularly aggressive or did not consent to being 'diverted'. Sufficient data is not available to determine the number of intoxicated persons likely to fit this category and end up in police cells.
Non decriminalisation: Diversion, would be possible even with retention of the offence, provided that an intoxicated person could be bailed. An amendment too the Bail Act 1980 (Qld) would be needed to clarify the power of police to grant ‘cash’ bail[11] to an intoxicated person despite any incapacity on the part of that person to consent to be bailed or to part with money for that purpose.[12] A further amendment to allow police to grant 'on-the-spot' bail, to avoid having to take an apprehended person to a watchhouse to be charged and bailed, would be highly desirable if coupled with a provision that enabled police to transfer an intoxicated person to a sobering up facility or other appropriate place before bailing them.
Either: The attitudes of police towards diversion would be critical in both cases. Legislative or administrative prescriptions requiring diversion, thorough police training, and evaluation and monitoring of police practices, would promote diversion. The design of procedures for 'processing' apprehended persons in either scenario could also be decisive. Police are more likely to opt for less onerous procedures. 'On-the-spot' bail would enable simplification of procedures to equate with what might be expected under a decriminalisation scheme.
Decriminalisation: Because the protections of the criminal justice system would not apply, safeguards would need to be written into model decriminalisation legislation, including the right of a detained person to make an application to a magistrate for their release[13] or to subsequently apply to a magistrate for a declaration that they were not intoxicated at the time of detention, in order to dear the record.[14]
Non decriminalisation: The theoretical safeguards of the criminal justice system in terms of due process apply, but are a relatively minor advantage of not decriminalising in that people charged with this offence generally fail to appear in court.
Decriminalisation: Trends observed following decriminalisation in Australian jurisdictions have included over-enthusiastic policing, under-enthusiastic policing, increased arrests for other minor offences and the perpetuation or exacerbation of inequalities in the criminal justice system, such as the over-representation of Aboriginal and Torres Strait Islander peoples. These have occurred in various jurisdictions for a complex range of causes not inevitably associated with decriminalisation. For example, increases in 'apprehensions' reported in New South Wales and South Australia after decriminalisation appear to be at least partly due to intoxicated persons 'turning themselves in' to sobering up shelters.[15]
Unintended consequences under schemes entailing either decriminalisation or retention of the offence could be guarded against by: tighter legislative criteria governing the exercise of discretions to apprehend and/or bail; adequate allocation of emergency care facilities; intensive police training; and long term monitoring.
Non decriminalisation: Desirable legislative and policy changes to facilitate diversion could also have unintended consequences. With a simplified charging procedure (incorporating 'on-the-spot' bail) and sobering up centres relieving them of custodial responsibilities, it is possible police might be more inclined to arrest and charge than they are now. Such consequences could largely be guarded against by the means previously suggested, although legislative restraints on police in terms of the discretion to arrest are not likely to come about if public drunkenness remains an offence.
This would be the most decisive factor in determining whether or not diversion from the criminal justice system occurred. Effective diversion would require adequate resourcing of community workers involved in night patrols or other civilian 'pick up' services and cell visitor schemes, as well as the establishment of 'sobering up' facilities. While decriminalisation would presumably provide more political momentum for the establishment of alternative facilities, it is arguable that diversion for Aboriginal and Torres Strait Islander peoples in Queensland could be better served by non-decriminalisation. Utilising matched Commonwealth funding, Queensland made an early commitment to the establishment of 'diversionary centres' (sobering up facilities) for Aboriginal and Torres Strait Islander peoples. Five centres are planned, of which three are now operating. The Government has similarly committed itself to ongoing funding for community groups operating 'cell visitor' and 'pick up' services in conjunction with diversionary facilities. Services currently operating do not cater for persons who are neither Aboriginal nor Torres Strait Islander.
With "better outcomes for Aboriginal [sic] and Torres Strait Islanders in terms of the number of them taken into police custody" being one of the main concerns of the Queensland Government,[16] the commitment to the diversion of Aboriginal and Torres Strait Islander people could be expected to be maintained, if not strengthened. It seems unlikely that attempts will be made to rescue the numerically significant non-Aboriginal population from their sorry plight in police cells under Minister Hayward's proposal, whereas decriminalisation itself would certainly require some commitment to divert the non-Aboriginal population and perhaps a future dilution of resources allocated for the diversion of Aboriginal and Torres Strait Islander people.
The decriminalisation model represents a comprehensive legislative strategy to facilitate diversion by prescribing when and how diversion can occur and conferring adequate powers on police to transfer intoxicated persons to appropriate destinations. Diversion is still possible without decriminalisation, although this is likely to entail a greater reliance on the exercise of police discretion and would still require legislative change. Nevertheless, on one level, it is certainly true that:
Decriminalisation today is something of a misnomer. Drunkenness has been, at least in the more recent past, a minor offence with little penalty and few consequences with regard to the criminal record ... bail of 10 cents is common and the vast majority of offenders do not appear in the magistrates court. At one level, to 'decriminalise' does little more than recognise in statute what actually occurs in practice.'[17]
The real issue is whether diversion will occur. Diversion will require a narrowing of the circumstances in which apprehension for public drunkenness occurs. It will require changes in police practices, whether legislatively prescribed or not. It will require changes to the Bail Act if the offence is to remain. It will also entail a strong commitment to the funding of diversionary strategies, such as those in limited existence already. The continuation and, if necessary, expansion of that commitment, along with more sensitive policing and the monitoring of police practices, will determine the success of diversion.
Claims that the Government must meet community expectations regarding law and order and public amenity[18] should not justify inaction. Powers of apprehension and detention are a basic feature of the standard model of decriminalisation which should be sufficient to allay the 'law and order' concerns of a suitably informed public . One needs to seriously question the political assessment apparently underlying the refusal of both the Victorian Government[19] and the Queensland Government to decriminalise. Minister Hayward puts it as follows:
[Public drunkenness is] behaviour which the community, as a whole, finds unacceptable and feels should be subject to some form of social sanction. The current legal status of public drunkenness fulfils the public expectation.[20]
This discussion would be incomplete without raising the serious threat to the objective of diversion posed by the ban on public drinking in Queensland. Less than six months after enacting the Liquor Act 1992 (Qld) minus an equivalent provision from the previous Act, the Government bowed to pressure to reintroduce the offence.[21] An interesting feature of the new provision is that, while designed to empower local authorities to determine public drinking areas, it does not take the approach of requiring them to pass by-laws declaring non-drinking areas, as in other jurisdictions,[22] but simply bans drinking in public except where councils declare it to be permitted. The RCIADIC observed that such provisions amount to an effective'recriminalising' of public drunkenness because of the enormous scope for them to be used against Aboriginal and Torres Strait Islander people.[23] There are currently no legislative safeguards attached to this power, such as reporting by local authorities, vetting by State Government agencies to detect trends of discriminatory usage, or monitoring of the incidence of arrest.
If the Queensland Government is serious about diversion from police custody for Aboriginal people it will continue its commitment to diversionary strategies and implement the necessary legislative and administrative changes to ensure diversion occurs, even within an offence framework. But it will also have to reassess the wisdom of conceding to the demands of the unrelenting law and order' lobby in Queensland. If societal attitudes towards drinking in public and public drunkenness need to be looked at in a more objective fight, as suggested by the RCIADIC,[24] surely the Queensland Government should be positively working to bring about more tolerant and considered responses, rather than reaching for the handcuffs.
[1] See Police Administration Act 1990 (NT); Intoxicated Persons Act 1979 (NSW); Acts Amendment (Detention of Drunken Persons) Act 1989 (WA); and Police Offences Amendment Act 1983 (ACT).
[2] . Johnston, E, National Report of the RCIADIC, ACPS, Canberra, 1991, Recs.79-81
[3] Ibid, Vol.3, 21.1.1.
[4] Ibid., Vol 3, 21.1.5
[5] Hon. Ken Hayward MLA, Minister for Health, Media Release, "Cabinet Rejects Move to Decrhninalise Public Dnmkenness", 9 May 1994, pl.
[6]"Drunk in public still a crime. Complaints sway Cabinet", CourierMail,10 May 1994, p3.
[7] Hayward, Media Release, op cit., Note 5.
[8] National Report of the RCIADIC, Vol.3, 21.1.35.
[9] Law Reform Commission of Victoria, Public Drunkenness Supplementary Report, May 1990, p2.
[10] Provided for in sS.16 of the Police Service Administration Act 1990 (Qld).
[11] For some offences, bail can be granted following the deposit of money as security for a person's appearance in court. If the person fails to appear, the sum is forfeited. Usually this is seen as sufficient penalty, no conviction is recorded and the defendant is not pursued.
[12] Section 14B of the Bail Act 1980 (Qld) was inserted in 1989 for this purpose, but expired in 1992.
[13] For example, under s531 of the Acts Amendment (Detention of Drunken Persons) Act 1989 (WA).
[14] For example, s53L of the Acts Amendment (Detention of Drunken Persons) Act 1989 (WA) and s8 of the Public Intoxication Act 1984 (SA).
[15] Law Reform Commission of Victoria, op cit., Note 9, p5.
[16] Hawyard, Media Release, op cit., Note S.
[17] National Report of the RCIADIC, Vol.3, 21.1.13.
[18] Hayward, Courier Mail, op cit., Note 6.
[19] A Bill to decriminalise was defeated in the Legislative Council in June 1991.
[20] Hayward, Media Release, op cit., Note 5.
[21] Section 4, Liquor Amendment Act 1992 (Qld).
[22] See, for example, the Local Government (Street Drinking) Amendment Act 1990 (N5W) and the Local Government Act 1989 (Vic).
[23] National Report of the RCIADIC, VoL3, 21.1.72.
[24] National Report of the RCIADIC, Vol.3, 21.1.76.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1994/28.html