The results of a review undertaken by the NSW Ombudsman into police powers to move on anyone who is drunk and disorderly has revealed that vulnerable people are being unfairly penalised under the legislation.
The increased powers, which were granted in 2011, give police the ability to force drunken people to leave an area for up to six hours.
The background to the increased powers
The powers took effect in September 2011 and were introduced by then NSW Premier Barry O’Farrell.
The Intoxicated and Disorderly Conduct Bill is an amendment to the Summary Offences Act, and gives police increased powers to fine people and move them along if they are drunk and acting in a disorderly manner.
The use of these powers was intended to be confined to entertainment districts, not other areas of the community, as a way to allow police to deal with intoxicated and disorderly people in those areas more effectively.
The legislation also makes it an offence for a person to return to an area they were previously moved on from within a six-hour time period.
What is more concerning to many legal experts is that the laws also make it an offence for the same person to be drunk and disorderly in any other public place within a six-hour period.
At the time, the legislation received wide criticism from legal bodies and civil rights organisations, which pointed out that there were already laws in place to deal with those who failed to comply with police direction.
The concerns were mainly centred on the fact that the new laws might target homeless people who wouldn’t have anywhere to move on to, and lead to higher rates of Aboriginal people being put in jail.
The results of the review
The review into the legislation was completed in August and was tabled in NSW Parliament in September.
The review looked extensively at the way the powers were used during the first year the legislation was in force, and who the main offenders were.
Results show that the charges have been used interchangeably with the already-established offence of failing to follow police direction, indicating a lack of consistency or clarity around how the laws are applied.
It is particularly important that police apply the laws in a consistent and reasonable manner due to the difference in fines.
The fine for failing to follow police direction is $220, and the fine for failing to comply with the intoxicated and disorderly conduct bill is now $1,100, which could mean a large discrepancy in penalties for what may essentially be the same offence.
It has also been revealed that of the offenders charged over the first 12 months of the intoxicated and disorderly legislation being enforced, 40% were from marginalised social groups, mostly Aboriginals but also mental illness sufferers.
As these groups are already vulnerable, the impact of harsher fines under the move on legislation could cause a number of flow-on effects, leading to them being marginalised further and contributing to an increase in the already high rates of Aboriginal people in custody.
Recommendations from the review
The NSW Ombudsman made a number of different recommendations to help ensure the laws are being applied fairly and consistently and to mitigate the impact they might have on already disadvantaged sections of the community.
The review also stated that unfair and arbitrary issuing of fines could over time lead to a loss of community and public confidence in the police force, and longer-term repercussions.
The Ombudsman made a number of recommendations to help prevent this occurring, including:
- Clear guidelines as to when the offence of failing to follow police direction should be applied, and when the move on laws should be used.
- Clarification of the definition of ‘disorderly’ to be used when deciding which laws to apply to an intoxicated person.
- That police officers should be required to warn people of the consequences of failing to comply with a direction to move on if they are intoxicated and causing a disturbance.
- Changes to reporting procedures to ensure that the record contains a very specific description of the person’s behaviour, so that it is clear that the elements of the offence have all been met and the charges are fair.
- That police use of the laws should be restricted to more serious cases rather than minor incidents, especially considering that the fine for refusing to move on when directed by police has been increased to $1,100.
The NSW Police Force rejected many of the Ombudsman’s recommendations prior to the report being released to the public.
The overall results of the review found that the legislation didn’t give police any significant extra tools to help them reduce alcohol-related crime.
The offences which were dealt with under this legislation during the review period could just as easily have been dealt with under existing laws.