Thursday, 20th June 2013

A man is walking along the streets of Melbourne CBD at night when he spots the police talking to someone. A wave of stupidity hits the man as he says “Have a good night, mate” in a self-confessed ‘smart-arse’ manner, while walking to the train station. The police immediately stop and focus their attention on this man.

They ask him what he is doing and he replies that he is going home. ‘No you’re not’ is the reply from the police. He is arrested and charged with being drunk in a public place.

This scene is one of many interactions between intoxicated people and the police on any given night.

The City of Melbourne is coming alive tonight – people finish work and head for the pub. Others are heading home to change before returning to the city – a night of clubbing is in their plans. For some, this night will end with blue and red sirens.

At the heart of the nightlife lies the social lubricant: alcohol. There is little doubt alcohol plays a significant role in many people’s nights out. However, there is a debate as to the effectiveness of criminalising public drunkenness, and whether or not we should treat it as a health issue.

While public drunkenness has been illegal since 1966, it is only recently that Protective Service Officers with the power to arrest drunk people have been deployed to train stations around Melbourne, complicating the issue of how to get home when intoxicated.

The man walking home faces an additional barrier to getting home: even if he doesn’t make his smart-arsed comment to police, he likely will be placed under arrest when he gets to the train station.

Victorian Police Assistant Commissioner Chris O’Neill has commented, asserting that drunks that use public transport are on notice, as reported by The Age.

“If you are drunk on public transport, you will be arrested,” he tells The Age.

An attempt to contact Victoria Police for clarification of this statement is met with a refusal to comment.

The police policy has put the man at the CBD station and many others like him in a Catch 22 situation. He certainly cannot drive home, and cabs will frequently not take drunks. Yet if he heads to the train station he faces possible arrest.

Such a mandatory policy does not take into consideration any extenuating factors, while placing some of our most vulnerable groups more at risk, as Emma Breheny, Policy Officer at Youthlaw notes in an online blog.

“Vulnerable groups, such as those affected by mental illness, young people, Aboriginal people, the homeless and those with an intellectual disability, are often reliant on public transport.

“Add to the mix drug and alcohol-affected people who may be using public transport after dark and PSOs are faced with a whole range of individuals who need a tailored response,” she says.

Drunk people do not face the prospect of arrest alone, it carries with it a penalty of $590 for the first offence and $1100 for the second. This is separate to the charge of drunk and disorderly.

To put this fine into perspective, speeding in Victoria in excess of 40 kilometres per hour above the limit attracts a $599 fine, while speeding in excess of 35 kilometres per hour attracts a $528 fine.

The only other state in Australia where public drunkenness is an offence is Queensland, however the penalty is significantly lower, at $110.

The man at the start of this article should be responded to in a very different manner, according to Michelle McDonnell, senior policy advisor at the Federation of Community Legal Centres.

“Instead of being arrested and locked up in a police cell, intoxicated persons could be taken to health care facilities and sobering up centres where they can be treated by properly trained staff,” she says.

While there is little doubt this man’s intoxication played a role in commenting to the police as he walked by, he did not pose a danger to either himself, or the police.

If someone is so drunk that they are a danger to themselves or others, then supervision or treatment may be necessary. Handing out fines does nothing to help this person and is unlikely to encourage them to reform their ways.

In New South Wales, a trial is currently being conducted into the use of ‘sobering up’ centres.

“The sobering up facilities are designed to help reduce alcohol-related violence and antisocial behaviour, by targeting intoxicated people, acting in a manner that puts themselves or others at risk, and placing them in a secure and safe location until they sober up,” the policy document states.

Two separate centres are being utilised: one mandatory, police run centre. And a second, voluntary centre staffed by non-government providers. In order to be admitted to the mandatory centre, the individual must:

Be aged over 18 years;

Fail to obey a move-on direction issued by police due to their intoxicated state;

Be potentially violent and/or acting in an antisocial manner and/or at risk of serious harm.

Whether or not the man’s comments at the beginning of this article would constitute anti-social behaviour remains questionable. However, the above approach does recognise the need to allow people to move on. If the man is told to move on and he does not, then the police have grounds for applying an anti-social label to his behaviour.

A number of studies have been conducted into Australia’s drinking culture. A study conducted by Deakin University into the drinking habits of young Australians has found a number of worrying trends.

The study involved interviews with a total of 6804 people entering or leaving venues in the nightlife districts in Geelong, Melbourne, Perth, Sydney and Wollongong.

Firstly, people’s ability to assess their own intoxication varied substantially.

Secondly, half of those surveyed reported that they were going to get a taxi home, indicating that focusing efforts on late-night transport infrastructure would ensure that highly intoxicated patrons left.

The lead professor of the study, Associate Professor Peter Miller agrees there is a problem with the drinking culture in Australia.

“It is time we are all held to account for the risky drinking practices in this country. Governments, the alcohol industry, bar and nightclub owners and the public all have a responsibility to address this major issue and challenge our culture of condoning and celebrating drunkenness,” he states in the research.

A survey of the drinking habits of 25,000 Australian secondary school students has found overall use of alcohol has been declining over all age groups. However risky drinking has continued for the older age group, with 48 per cent of 16 to 17 year-old drinkers indicating they had drank four or more drinks in the past week.

Todd Harper, CEO of Cancer Council is concerned this means a new generation of Australians are not getting the message about the harms associated with drinking, according to a media release.

“We know the drinking patterns of adolescents in the final years of secondary school can be predictive of their drinking levels in the early years of adulthood, so the fact that 16 to 17-year-olds who drink are as likely to binge drink as current drinkers in 2008 is concerning,” he states.

However, the issue remains: if alcohol is so embedded without our culture, are punitive responses to public drunkenness the wrong approach? By asserting that drunks on transport will be arrested, will more people turn to the roads?

25 per cent of all drivers and motorcyclists killed on Victoria’s roads over the last year were 0.05 Blood Alcohol Concentration (BAC) or over, according to the Transport Accident Commission.

The following question was posed to social networking site Reddit.com, under the Melbourne specific forum: “how are drunk people meant to get home if not by public transport?”

A common thread in the responses is summed up by user RadiumGirl.

“I think the idea is to discourage people getting drunk in public in the first place,” she says. “Being drunk in public shouldn’t be something that is so socially acceptable that our response is a simple, but how do the drunks get home?”

However, other commenters believe the law is misplaced as there is already a law to deal with anti-social behaviour: drunk and disorderly, as user Coz131 explains.

“Look around you, it does not work. There are many people out on a weekend that can be considered fairly intoxicated but they are not anti-social. They have a good night and go home; they should not be punished for that. The issue is not about being drunk. It is about anti-social behavior,” he says.

Frank E. Guivarra writes in his book, The Survival of Public Drinking Laws in Victoria, that the issue of public drunkenness has come up for reform numerous times over the past few decades.

In 1989-90 a Bill was introduced to decriminalise public drunkenness in Victoria, however it did not become made into law. A memorandum for the bill discusses the motivations behind the proposal.

“The proposal to decriminalise public drunkenness was recommended by both the Interim Report of the Royal Commission into Aboriginal Deaths in Custody, which was released in December 1988, and by the Law Reform Commission of Victoria in its report entitled “Public Drunkenness” released in 1989, and in its supplementary report released in 1990,” it states.

The proposal outlines the options available to police for dealing with an apprehended intoxicated person, including being taken from the public place and released, released into the care of another, taken home, or transferred to a sobering up unit or a police station or police gaol.

“The option exercised must always be the one which is, as far as practicable and appropriate, the least restrictive of the person’s liberty,” it states.

As mentioned, the bill eventually died. The next major review of public drunkenness was conducted by the Parliament of Victoria in 2002. A discussion paper for it was released, examining the successes and failures of decriminalising public drunkenness in other states.

“The Northern Territory and other interstate jurisdictions are examples of local government continuing to regulate public drinking without the use of criminal charges. Should Victoria consider decriminalising public drunkenness these jurisdictions may serve as useful models from which possibly to draw,” it states.

The most recent change to Victoria’s laws of public drunkenness came in 2011, when the fines doubled, despite many academics, legal and health professionals recommending we think again about public drinking and treat it as a health problem.