09 September 2015

Intoxication and criminalisation

'Public Intoxication in NSW: The Contours of Criminalisation' by Luke McNamara and Julia Quilter in (2015) 37 Sydney Law Review traces
the history of the regulation of public intoxication in New South Wales (NSW) from the early 1800s to the present. We argue that although the formal legal status of public drunkenness and drinking has changed over time, and although different approaches have been prominent at different points in the history of NSW, public intoxication has been consistently and continuously criminalised for almost two centuries, despite official ‘decriminalisation’ in 1979. Shifts in regulatory modalities — including offence definitions, police powers, the involvement of local councils and enforcement practices — have been associated with significant changes in how the nature of the problem of public intoxication is conceived and how the persona of the ‘public drunk’ is constructed. Perceived at different times as immoral, annoying and pitiable, most recently, individuals who are intoxicated in public are increasingly seen as ‘dangerous’ and as posing a risk to other members of the community. The threat to public safety and the fear that innocent members of the public might be subjected to random violence have become major drivers of policymaking and law reform in this area, and have produced a less forgiving and more punitive approach to public intoxication. 
McNamara and Julia Quilter comment
In recent years, the problem of ‘alcohol-fuelled violence’ has been the subject of intense media scrutiny, and the trigger for a number of significant changes to New South Wales (NSW) criminal laws and liquor licensing laws. Much of the attention has focused on the dangers posed by young men who, while drunk in public, engage in random attacks, sometimes with fatal consequences. In this article, we locate these contemporary debates and legal developments in the broader context of the history of the criminalisation of public intoxication in NSW. A historicised approach reminds us that although there is a tendency to regard current risks, anxieties and regulatory urges about public intoxication as unprecedented, this is not the case. Public drunkenness and associated disorder has been a preoccupation of governments since the early days of the NSW colony. While constant, the preoccupation has not been static. 
This article tracks, from the 19th century to the present, the ways in which drunkenness and drinking in public places have been regulated in NSW. We show that the criminalisation of public intoxication in NSW has taken a multiplicity of forms over time. It has included the creation of various criminal and regulatory offences and police powers, and different enforcement practices heavily influenced by local exercises of discretion. Shifts over time have been associated with important changes in how the nature of the problem of public intoxication is conceived and how the persona of the ‘public drunk’ is constructed. As a case study of criminalisation as a tool of public policy, the history of the regulation of public intoxication in NSW offers a powerful illustration that how a problem is framed is an important driver of the choice of policy and legal responses. As Althaus, Bridgman and Davis observe, ‘[t]he importance of narratives in political discourse should not be underestimated’. Equally, the construction of regulatory subjects (‘public drunks’) is an important dimension of knowledge formation about law’s parameters and legitimacy. 
At intervals (often overlapping), the problem of public drunkenness has been variously characterised as one of inherent criminality, morality, race (specifically, Aboriginality), class, drug-dependence, welfare, risk and danger. We argue that these frames have influenced the shape of criminalisation in this area, but that the fact of criminalisation has been continuous, even during periods of official ‘decriminalisation’. Without underestimating the symbolic importance of moments when crimes are removed from the statute books, we argue that it is necessary to examine critically the consequences of such moves, including the nature and effect of regulatory techniques that are deployed to fill the ‘void’ left by decriminalisation. 
This paradox can be explained in at least three ways. First, there is a disconnect between the law on the books and the law in practice, including departures that result from pragmatic operational (mis)understandings of the law. Second, even as the formal status of public intoxication has shifted from criminalisation to decriminalisation to forms of re-criminalisation, police have consistently been vested with the power to intervene and remove intoxicated persons from public spaces. Third, a key part of the story of the ‘evolution’ of the State’s regulation of public intoxication is the hybridity of the criminalisation, blending substantive offences and coercive police powers. One of the consequences of the growth of coercive police powers, in preference to substantive offences, is reduced opportunities for targeted individuals to contest the legitimacy of police intervention in relation to their presence and behaviour in public. This phenomenon is not unique to public intoxication and applies to a range of antisocial and other behaviours considered unacceptable in public places. In addition to warranting attention in its own right, the history of the treatment of public drinking and public drunkenness by the criminal law and the police since the 19th century provides a good vehicle for demonstrating the nature and virtue of a wider agenda for grounded and contextualised criminalisation research, of the sort advocated by leading criminal law scholars, including for the purpose of grounding and interrogating normative judgments about overcriminalisation. As Lacey has explained:
The normative task of criminalisation theory can only be satisfactorily pursued if we also interest ourselves in some fundamental explanatory questions about the nature of criminalization over time and space. For the possibility of achieving valued goals or ideals can only be assessed by constructing a clear picture of the various institutional, political and social dynamics which underpin the constitution of criminal law at particular times and in particular places.
Such an approach necessarily involves deploying a ‘thick’ and broad conception of criminalisation. This approach does not begin and end with an examination of whether the conduct in question is a criminal offence or not. Rather, it takes account of what Lacey has promoted as ‘three complementary perspectives’ for criminalisation case studies: doctrinal structure, scope and logic; scope and pattern of enforcement; and legislative, social and political genealogy. 
Criminalisation is a rich and complex phenomenon that can manifest in any one or more of a number of methods of being on the receiving end of the coercive power of the state’s criminal justice institutions and agencies. Arrest, charge, conviction and court-issued punishment might still be widely seen as the paradigm of criminalisation, but we would argue that these processes may be only part of the story of criminalisation in any given context. This is especially so in the context of public order — where, for example, the line between the enforcement of substantive criminal offences and the deployment of coercive police powers is very much blurred, and where offence/power hybridity is also associated with the extension to the police of broad and rarely reviewed discretion to decide when and how to intervene. In particular, the field of public intoxication regulation demands, and illuminates the value of, the deployment of a thick conception of criminalisation. We will show that there has been considerable regulatory ebb and flow over time, in terms of both ‘law on the books’ (creation, abolition and re-creation of offences) and operation (including the enumeration and expansion of police powers that facilitate criminal intervention without charge or prosecution), and these shifts have been associated with evolving conceptions of the nature of the problem that warrants intervention. 
Two further introductory remarks are appropriate, to locate this article within broader questions about social, political and legal responses to alcohol consumption. First, the subject of this article reflects a consistent theme in policy and lawmaking in relation to alcohol: a preoccupation with public drinking and a tendency to treat the negative effects of intoxication that occur in public as more deserving of the state’s attention than behaviour that occurs in private. Although beyond the scope of this article, this unevenness deserves acknowledgment and warrants further research. For example, the effect is that people who drink in public — often a product of socioeconomic status and/or cultural preference — are exposed to higher levels of scrutiny and criminalisation than those who have, and prefer, the option of consuming alcohol in private. The most recent phase of the history of public intoxication regulation, where there has been a heavy focus on the risk of violence associated with public intoxication (rather than mere nuisance or loss of urban amenity), also brings the gender implications of this public/private unevenness into focus. It is striking — and, we would argue, problematic — that the risk of violence associated with private intoxication has largely been ignored in recent policy debates about ‘alcohol-fuelled violence’. Our concern is not simply that a focus on public alcohol-related violence involves an incomplete response to the evidence that alcohol consumption is associated with elevated risks of violence, but that this involves a heavily gendered approach by occluding the context in which women are more likely to be victimised by an alcohol or drug-affected person: in a private or domestic setting. 
Our final introductory remark is that the history of public intoxication and drinking in NSW (and elsewhere in Australia) is intimately connected with the history of the criminalisation and policing of Indigenous persons and communities. The particularities of this history (such as the creation of ‘dry’ communities and the Intervention/‘Stronger Futures’ regimes in the Northern Territory), require detailed and localised analysis. However, it is appropriate to acknowledge that many of the regulatory measures reviewed in this article — including ostensibly ‘welfare’-based decriminalisation mechanisms — have had, and continue to have, a disproportionately coercive and punitive impact on Aboriginal people in NSW. A disturbingly familiar pattern was revealed in the NSW Ombudsman’s 2014 report on the first year of operation of the offence of continuing to be intoxicated and disorderly in public after having been given a ‘move-on’ direction (introduced in 2011). The Ombudsman found that 30% of the ‘on-the-spot’ fines and 37% of the charges for this offence involved an Aboriginal person. 
Our discussion will start in Part II with a brief overview of 19th century public order-based approaches to the criminalisation of street drunkenness, which exhibited a strong focus on the public ‘drunk’ as unworthy, and a blight on the streetscape, synonymous with vagrants and beggars, as well as morally suspect working class drinkers. We also consider the way in which the summary offence of public drunkenness was deployed, particularly in the second half of the 20th century, not so much as a crime to be condemned and punished, but as a mechanism for police removal of drunks from public places, with relatively little appetite for formal prosecution and court-imposed sentences. Part III examines the move, during the 1970s and 1980s, towards the ‘decriminalisation’ of public drunkenness, ostensibly motivated by a welfare-based policy agenda that aimed to extricate chronic alcoholics (‘skid-row drunks’) from the criminal justice system, which was ill-suited to meeting their needs. Our analysis of this phase highlights the importance of a sophisticated conception of criminalisation as a regulatory tool that looks beneath the presence/absence of a specific criminal offence to consider the range of ways in which a person may come into contact with the criminal justice system. Although, with the passage of the Intoxicated Persons Act 1979 (NSW), conduct that was criminal one day became ‘legal’ the next, persons who were drunk in public still found themselves the subject of police scrutiny and well within reach of the power of the police to ‘apprehend’ and ‘detain’ (albeit without charge) by virtue of their drunkenness, or to be charged with other public order crimes to which intoxication was a significant causal contributor (such as offensive conduct or offensive language in a public place). 
Part IV charts the rise of local government/police partnerships to prohibit drinking in designated public areas from the 1990s, originally designed to empower both police officers and local council officers to give warnings and, where deemed necessary, to enforce ‘on-the-spot’ fines for minor regulatory offences under local government legislation, and later focused exclusively on the power to confiscate alcohol from persons drinking in a public place that had been declared ‘alcohol-free’. Part V considers the late 2000s adaptation of generic public order move-on powers introduced in the late 1990s into targeted move-on powers that allow the police to direct intoxicated individuals to move-on where their presence in a public place is considered to warrant dispersal, the augmentation of these powers with a specific offence of continued intoxicated and disorderly behaviour in 2011, and the introduction of ‘sobering up’ centres in 2013. 
If the policy emphasis in the decriminalisation era of the 1980s and 1990s was, at least ostensibly, to destigmatise public intoxication and ‘care’ for drunks in need, the measures adopted during the last two decades have had a very different focus, exhibiting a much stronger emphasis on condemnation of public drinking and drunkenness and an approach that conceives of public drunks as antisocial, dangerous and a risk to public safety.  Most recently, the correlation between public intoxication and violence has been a major driver of shifts in the contours of criminalisation. For example, in 2014, the NSW Parliament introduced a new offence of assault causing death while intoxicated, which attracts a mandatory minimum sentence of eight years’ imprisonment. 
We conclude that public intoxication has been consistently criminalised from the early colonial period to the present. Although the shape and prevailing mechanisms of criminalisation have changed over time, there has never been a period when public intoxication has been tolerated, or when the police have not had significant tools at their disposal to remove drunks from public places.