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Gardiner, Greg; Mackay, Michael --- "Indigenous People Arrested for Public Drunkenness" [1998] IndigLawB 56; (1998) 4(13) Indigenous Law Bulletin 14


Indigenous People Arrested for Public Drunkenness

by Greg Gardiner and Michael Mackay

For several years, Greg Gardiner and Michael MacKay have monitored Victoria Police statistics in relation to arrests of indigenous people for offences of public drunkenness under the Summary Offences Act 1966. They contend that the Victorian legislature should make a clear and unambiguous commitment to the recommendations of the Royal Commission into Aboriginal Deaths in Custody and decriminalise the offence of public drunkenness. In this simple and inexpensive step, the total arrests of indigenous people in Victoria would be reduced by almost 25%. The authors' analysis of the latest statistics from Victoria Police demonstrate that the patterns of arrest revealed by their earlier research are no aberration but represent a continuing trend.

Victoria is one of three states that has failed to decriminalise public drunkenness.[1] In November 1996 a Government spokesman said that there were no plans to decriminalise public drunkenness in Victoria.[2] However, four months later Attorney-General Jan Wade announced[3] the repeal of the offence of `habitual drunkenness' contained in section 15 of the Summary Offences Act 1966 (Vic). With a maximum penalty of 12 months' goal, the offence of habitual drunkenness was the most serious of theoffences related to drunkenness. This is an intelligent step forward, and is an approach that should be followed in relation to the other offences related to public drunkenness. At the time, Mrs Wade noted that repeal of the offence allowed for issues of alcoholism to be dealt with as health issues, not criminal justice ones. Despite these concessions, there continues to be an increase in arrests for public drunkenness (see Table, p 17 below). While the Victoria Police have described this increase in arrests for drunkenness as disappointing,[4] the State Government remains largely unmoved by recommendations for further reform.

Recommendations 79 to 85 of the 1991 Royal Commission into Aboriginal Deaths in Custody (RCIADIC) urged the relaxation of laws relating to the offence of `public drunkenness'.[5] At various points within the Royal Commission's report, the relevant sections of the statutes are described as archaic and ludicrous, as well as a waste of police resources. Of the 99 indigenous people who had died in custody and whose deaths were investigated by the Royal Commission, 27 were in police cells at the time of their death merely for the offence of public drunkenness. In jurisdictions where public drunkenness had already been removed from the statutes, another eight had been detained without charges being laid due to their intoxicated state.[6] In Victoria, all three deaths investigated by the Royal Commission were of people in custody solely because they were drunk in a public place.[7]

The Victorian Government has previously argued that a lack of alternative facilities to police custody, and the high proportion of non-indigenous people charged with offences in this category make it impractical to remove the relevant laws from the statutes.[8] However, as the following data demonstrates, indigenous Victorians are being charged in increasing numbers for offences relating to public drunkenness. While many of these charges do not lead to convictions being recorded, there is evidence that in some jurisdictions imprisonment is the end result, particularly in circumstances of default on fines imposed under local by-laws.[9]

Incidence of arrest of indigenous people for offences relating to public drunkenness

The Table shows that between 1994/95 and 1995/96, there was a 41% increase in the number of Aborigines processed in cases where 'drunkenness' was the major offence. Victoria Police's LEAP database recorded 3,451 arrests of Aboriginal people in 1995/96.[10] A separate database recording arrests for drunkenness of Aboriginal people contained a total of 1,066 such arrests in 1995/96. Thus, 23.6% of Aboriginal arrests in 1995/96 were for public drunkenness; nearly one quarter of all instances of processing of indigenous people by Victoria Police in 1995/96 concerned 'drunkenness' as the most serious offence.

Included in the Table are the latest statistics for 1996/7 offences for drunkenness.[11] These indicate that the high levels of arrest for drunkenness reached in 1995/96 remain virtually unchanged, although some variations have occurred between regions.

Regional pattern of arrests

It has been shown elsewhere that certain rural police districts have had extremely high levels of arrest of Aborigines for 'drunkenness' for a number of years.[12] For example, 'Clean up the Streets' campaigns in the 'N' district[13], which involved the arrests of Aborigines for offences relating to public drunkenness, have been subjected to media scrutiny. Nevertheless, arrests in 'N' district continue to rise, with that district maintaining its position at the top of the table for indigenous arrests for drunkenness.[14] Yet overall, country police districts exhibited a 15.5% increase in Aborigines processed for this offence, compared to a 91.7 % increase for metropolitan Police districts between the years 1994/95 and 1995/96.

'A'[15] district's arrests for public drunkenness rose by a massive 350 % over one year.[16] The reasons behind the huge increase in arrests in this period are unclear, although there has been some suggestion that the general increase in arrests over the period is in part related to a greater adherence by police to formal procedures in cases involving Aboriginals and Torres Strait Islanders.[17] Other factors, such as the enforcement of special events (like the Grand Prix), and venue by-laws, may also be implicated. A' district continues with its expected higher levels of arrest in the 1996/97 period. In contrast, a reduction of nearly 50% may be observed in 'B' district.[18]

These statistics (which may yet prove to be under-reporting of actual custodies)[19] demonstrate the effects these laws have on the Aboriginal community in Victoria and highlight the seriousness of the Victorian Government's continued refusal to decriminalise offences relating to public drunkenness encoded in sections 13-16 of the Summary Offences Act 1966 (Vic).

The role of sobering-up services

Of crucial importance to avoiding police custody for drunkenness is the availability and use of sobering-up services. Diversion from custody into a sobering-up facility does not mean that charges are not laid. Yet, even though people may be charged, support for on-the-ground community services must remain a priority in order to lower levels of indigenous detention and reduce the risk of further deaths in custody.

From the data obtained it is not possible to ascertain the percentage of Aborigines processed for this offence who were diverted from police cells by referral to community sobering-up centres. In the period 1994/5 to 1995/6, no sobering-up centre operated in the metropolitan area, which is of real concern given the increased numbers processed in A district during that period.

In Victoria, these services now exist in four of the Police country districts, (L, N, O, Q)[20] and a metropolitan service operated by Ngwala Willumbong Co-operative was reopened in November 1996. 'A' district is now the dominant metropolitan area for referrals to the new Ngwala Willumbong sobering-up service for Aboriginal and Torres Strait Islander people.

With the re-establishment of a metropolitan sobering-up service, the other sobering-up facilities and the apparent success of the Community Justice Panels' use of alternative forms of community policing, the Government's arguments against reform appear increasingly tendentious.

Conclusion

The arguments put by the RCIADIC and others in favour of decriminalisation remain as cogent as ever. Laws which make drunkenness a criminal offence protect no significant community interest and have no demonstrable deterrent value. Decriminalisation has the potential to reduce by up to one quarter the incidence of Indigenous arrests in Victoria and to reduce the total number of Indigenous offenders processed by Victoria Police.

Greg Gardiner is Research Fellow at the Koorie Research Centre, Monash University and Michael Mackay is a Research Consultant & Statistician.

Table
Aboriginal and Torres Strait Islander people on attendance register taken into custody for drunkenness
July 1994 – June 1997

District
1994/95
1995/96
1996/97
A
50
225
287
B
101
113
59
C
4
5
2
D
8
9
9
E
6
29
7
F
8
9
13
G
1
4
4
H
42
56
30
I
21
15
8
J
9
14
14
K
3
6
6
L
32
36
36
M
19
15
25
N
219
279
316
O
126
144
115
P
15
10
8
Q
12
10
8
Total
756
1066
1059[21]


[1] The remaining two states are Queensland and Tasmania. C Cunneen & D McDonald Keeping Aboriginal and Torres Strait Islander People Out of Custody: An Evaluation of the Implementation of the Recommendations of the Royal Commission in Aboriginal Deaths in Custody (Office of Public Affairs, Canberra, 1996), pp 105-06.

[2] The Age, 21 November 1997, p 8.

[3] The Mail 4 March 1998, p 6.

[4] The Koori Mail 3 Dec 1997, p 2.

[5] Royal Commission Into Aboriginal Deaths in Custody (RCIADIC) National Report: Overview and Recommendations (Australian Government Printing Service, Canberra, 1991), pp 49-50.

[6] ibid. Vol 1, p 46.

[7] Six deaths in custody occurred in Victoria from the close of RCIADIC investigations to end of 1996. See Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, Indigenous Deaths in Custody: 1989-1996 (Aboriginal and Torres Strait Islander Commission, ACT, 1996), p ii.

[8] See M Mackay 'The offence of public drunkenness' in Alternative Law Journal (1996) 21/3, p 141-44. See also D Lane 'Public Drunkenness in Victoria' in Aboriginal Law Bulletin (1991) 2/51, p 21.

[9] See M Mackay, 'Law, Space and Justice: A Geography of Aboriginal Arrests in Victoria' in People and Place (1996) 4/ 1, pp 35-7; Cunneen & McDonald (1996), p 107.

[10] Since the early 1990s, complete statistics pertaining to drunkenness are no longer kept within the main LEAP database maintained by Victoria Police. Instead, the Statistical Services Division keeps a separate database on Aborigines taken into custody where the most serious offence is being drunk in a public place or public drunkenness. No corresponding database is kept for non-Aborigines arrested for drunkenness, making comparisons impossible. For the previous period see R Alias & S James, Justice Gone Walkabout: A Study of Aboriginal Offending 1989-90 to 1993-94, (Victorian Aboriginal Legal Service Co-operative Ltd, Melbourne, 1996) pp 57-66.

[11] The latest figures on other offences indicate that the number of male offenders processed in Victoria has increased by over 15% in the year 1996-97.

[12] M Mackay, 'Law, Space and Justice: A Geography of Aboriginal Arrests in Victoria', in People and Place (1996) 4/1, pp 28-39. See also Cunneen & McDonald, op cit., p 112.

[13] 'N' District is located in the north-west of the state and refers to an area including Mildura in the north-west, Wycheproof in the south-east and Swan Hill in the north-east.

[14] Although some areas of 'N' district have apparently seen some improvements in Police-community relations in the past eighteen months, according to anecdotal reportage.

[15] 'A' District refers to the Northern Metropolis of Melbourne, including Northcote.

[16] Up from 50 in 1994/95 to 225 in 1995/96.

[17] This procedure entails the registering of Aboriginal and Torres Strait Islander people on a separate attendance register, and contact with the local sobering-up service.

[18] 'B' district refers to the Southern Metropolis of Melbourne, including St Kilda.

[19] See footnote 11.

[20] 'L' district refers to the south-western district region including Warrnambool in the south and the South Australian border in the west; '0' district refers to the North Central or Loddon region including Echuca and Shepparton and 'Q' district refers to the Gippsland region including Warrigul and Mallacoota.

[21] Total includes one arrest recorded but not counted within a district. The Table is adapted and updated from Gardiner and Mackay, op cit., p 19.


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