Milford, Richard --- "The Decriminalisation of Public Drunkenness in Western Australia" [1991] AboriginalLawB 42; (1991) 1(51) Aboriginal Law Bulletin 18

Over the past two decades State and Territory governments in Australia have progressively legislated to decriminalise public drunkenness and put into place alternative, more welfare orientated, strategies. This trend to take public drunkenness out of the criminal justice arena is not new. There has been discontent in several countries with traditional methods of dealing with public drunkenness. The establishment of non-criminal sobering up stations in Prague and Warsaw during the 1950's was seen as a breakthrough in demonstrating an alternative way of responding to public drunkenness that emphasised welfare rather than punishment.

In western countries, decriminalisation of drunkenness has generally been tackled in a tentative manner, with criminal law alternatives often retained. In Ontario, Canada for example a network of detoxification centres was established during the late sixties and early seventies. At the same time the law was changed to allow police to take persons found drunk in public to these centres. However, the option of using the criminal law to prosecute was retained.

Similarly in Britain, while police were given the option of taking drunken persons to approved treatment centres, once they had been detoxified they would then be charged in the normal way.

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In the United States, the Federal Government attempted to move away from criminal law responses to public drunkenness. Although financial incentives were provided to states that repealed laws which allowed for public drunkenness arrests, a review of the effect of these incentives in 1985[1] concluded that most US jurisdictions had not fully decriminalised public drunkenness. The desired change from criminal justice to health care intervention had been only partially achieved.

FIGURE 1 Drunkenness Arrests 88/89 Chosen sobering up locations
	Number	%
Perth City	1249	9%
Halls Creek	2767	20%
Fitzroy Crossing	2034	15%
Hedland	1208	9%
Other locations	6261	46%

In the move to decriminalise public drunkenness, two discernible alternative models have arisen: the medical, sickness model and the social, welfare model. The US approach followed the medical model and tied provision of coordinated health services to decriminalisation. Programs implemented in Canada and Britain had a more social flavour, but most aimed to detoxify and rehabilitate chronic alcohol users. In comparison, the Eastern European model has no provision for any form of rehabilitation, or even counselling. Its intention was to provide basic care for intoxicated persons while they sobered up and to keep them out of the criminal justice system.

History of Decriminalisation of Public Drunkenness in Australia

The model used in Australia has been similar to the minimalist sobering up approach pioneered in Eastern Europe. This was based on an assumption that while intoxicated persons were in need of care, rehabilitation was too ambitious an aim if clients were not motivated to change.

The Northern Territory, in 1974, was the first Australian jurisdiction to decriminalise public drunkenness. New South Wales legislated in 1979, not only to decriminalise public drunkenness, but also to implement a form of alternative care. The Intoxicated Persons Act (1979) NS W provides for certain facilities to be identified as 'proclaimed places' where people apprehended by the police for being publicly drunk can be compulsorily detained.

Proclaimed places are designed to provide basic accommodation, and a certain amount of welfare support. The program was never intended to provide detoxification or treatment, but would refer to facilities providing such a service.[2]

In the Northern Territory decriminalisation legislation by itself did not prove satisfactory, as the police were unwilling to pick up intoxicated persons without arrest provisions. A consequence of the inadequacy of a solely legislative remedy was the establishment of the first Northern Territory sobering up shelter in Darwin in 1983. This initial shelter has since been closed, but it served as the model for subsequent shelters, established mall major Northern Territory population centres. In setting up this program the Territory wanted to avoid a number of problems that had arisen with New South Wales' proclaimed places. These facilities were frequently full with self-referrals and homeless people who were not drunk. Consequently their capacity to admit people detained by the police for public drunkenness was reduced and these people were not diverted from police cells. Self referrals and people who were not drunk were not admitted to Territory shelters. The program remained a minimalist social welfare response and no provision was made for counselling or medical treatment.

The South Australian Public Intoxication Act (1984), like the NSW Act has resulted in a blurring of function between short term sobering up and longer term accommodation for homeless people. As in New South Wales, the capacity of sobering up facilities to divert drunken people from police lock ups has been reduced.

The History of Decriminalisation of Public Drunkenness in Western Australia

In Western Australia, the move towards decriminalisation was spurred by the findings of the State Government's Interim Inquiry into Aboriginal Deaths in Custody in Western Australia[3] and the Royal Commission into Aboriginal Deaths in Custody Interim Report.[4] Both reports specifically recommended that drunkenness should be abolished as an offence, with the latter going further and recommending establishment of alternative facilities for the care of intoxicated persons.

In February 1989, the Australian Aboriginal Affairs Council discussed implementation of the recommendations contained in the Muirhead Interim Report and as a result capital cost funding of $800,000 was committed by the Commonwealth on a dollar for dollar basis for the establishment of sobering up centres in Western Australia. In June 1989 State Cabinet approved the development of alternative procedures to minimise use of police cells for detaining drunk persons. Implementation of the project was vested with the Western Australian Alcohol and Drug Authority.

At the same time that decisions regarding funding and implementation of sobering up centres were being made, legislation decriminalising public drunkenness was being prepared. On 27 April 1990 the Acts Amendment (Detention of Drunken Persons) Act 1989 came into force. This Act amended the Police Act 1892 and the Child Welfare Act 1947 so that it is no longer an offence in Western Australia to be drunk in public.

Establishment of Sobering up Centres

It was clear from the outset that there would never be sufficient funds to establish sobering up centres in every location where public drunkenness was a problem. The decision was therefore made to establish four centres in areas of greatest need. Examination of arrest data revealed that most drunkenness arrests occurred in the north of the State and predominantly involved Aboriginal people. The towns of Halls Creek and Fitzroy Crossing consistently had the highest drunkenness arrest rates for the State. Sobering up centres are to be established in both these locations. A third centre is to be established in South Hedland to service the Pilbara region. Perth city was chosen as the location for the fourth centre, again on the basis of the number of drunkenness arrests. Figure l illustrates that these four locations accounted for 54% of drunkenness arrests throughout the state in 1988/89.

It was intended that by establishing sobering up centres in these locations, the majority of persons found drunk in public could be diverted to more appropriate facilities.

Aims and Objectives of the Program

The Western Australian program, like those preceding it in other Australian jurisdictions, encompassed two distinct components, legislative change and the development of alternative facilities.

A broad integrating aim for the decriminalisation program was to redefine public drunkenness as a social and welfare problem, rather than as criminal behaviour. The corollary of this is that the response to public drunkenness is also redefined as care rather than punishment. However to differentiate the contribution of the two program components that constitute decriminalisation, and allow valid quantitative means for assessing the success of each, the following measurable objectives were formulated:

Project Development Strategies

It was very clear from overseas and interstate experience that a community development model has many benefits to offer such a project. The concept was to give the local community control of its sobering up centre.

The centre will be managed by a local community group, and once the service is established the Alcohol and Drug Authority's involvement will be limited to funding, training, monitoring care standards and evaluating and researching the effects of the program. This should encourage more community involvement in the service provided; and a service that is better tailored to local needs with greater local understanding, ownership and control of the drinking problem generally.

A great deal of work has been put into informing and educating communities about the program. This has been followed up with extensive community consultation and negotiation in locations where sobering up centres are planned. Submissions were invited from interested groups to manage each local centre and on the basis of demonstrated management ability and community acceptability, management contracts were then awarded locally for the management of the four sobering up centres.

Current Developments

Perth: The Perth sobering up centre, which began in May 1990, is managed by the Salvation Army. It is to early to comprehensively evaluate the success of this service, but admission data from the centre and police indicated a number of satisfactory trends. Figure 2. shows that admissions have increased for each quarter of the centre's operation and that an increasing percentage of clients during this period were Aboriginal.

In fact the total number of admissions (831) for the 10 months of operation to 31 March 1991 was comparable to the 1249 persons arrested for public drunkenness in the last full year before decriminalisation, 1988/89 and indicated in a crude way that such persons were being diverted into care.

A stated aim of the sobering up service is equality of access and in this context the Aboriginal and female percentage of the client population is informative, as well as the total number of clients who use the Perth service. Figure 3 provides a comparison by gender and Aboriginality, of persons found drunk in public by police in the Perth city area, before and after decriminalisation. The data presented in this figure shows that since the centre opened, the mix of clients has been remarkably similar, in percentage terms, to that found in an August l988 custody survey of the East Perth lock up.

This would seem to provide some preliminary support for the claim that the sobering up service is beinge qually accessed by all potential clients.

One of the aims of the sobering up service is to divert persons apprehended for public drunkenness from police lockups. The data in Figure 3 indicates that large numbers of persons who would otherwise sober up in police lock ups were being admitted to the sobering up centre. The other side of this equation is, however, the number of people apprehended by police for public drunkenness who remained in police lock ups. According to police, this number was 10 for Perth city in the period from decriminalisation on 27 April 1990, to 31 March 1991. In percentage terms, 97.5% of all persons apprehended by police for public drunkenness were taken to the sobering up centre: a remarkably high proportion.

However this dramatic change in the way persons found drunk in public in Perth received care may not be the full story. Since the decriminalisation of public drunkenness, data has yet to become available on arrests for other public order offences.

One possible explanation for the reduction in lockup detentions is that drunk persons are still being apprehended by police but being charged with public order offences such as disorderly conduct. Commissioner Dodson of the Royal Commission into Aboriginal Deaths in Custody addressed this concern:

This possibility will be examined when data is available, but an optimistic indicator of policing practice since decriminalisation is contained in a recent arrest/detention comparison between late 1987 and early 1990 conducted in Kalgoorlie, which showed that Aboriginal apprehensions for public drunkenness fell by 95% and were not accompanied by a rise in offences likely to be substituted for "drunkenness"[6].

Northwest Locations: The Salvation Army will also operate the South Hedland sobering up centre. An interim facility commenced operation in May 1991. Planning for the purpose designed building is proceeding and a new facility should be ready for occupancy by late 1991.

In Fitzroy Crossing a grass roots community group formed to take on the management of the local centre as the result of a public meeting held in March 1990. The group is entirely Aboriginal and represents the various communities in and around town. Extensive consultations have taken place prior to decisions being made about location, building design, style of service provision etc. A sobering up service should be in operation from this purpose designed facility in early 1992.

In Hall's Creek a local church with a substantial Aboriginal congregation will operate the sobering up centre. The design of the centre has been finalised and building completion is planned for late 1991.

Conclusion

The decriminalisation of public drunkenness in Western Australia is proceeding smoothly, and at a pace that the communities most affected by public drunkenness can accommodate. The legislative changes have already had a considerable impact in themselves. In Kalgoorlie, arrests of Aboriginal people for public drunkenness constituted the bulk of charges prior to decriminalisation. Detention subsequent to decriminalisation was however rare and displacement to other offences such as disorderly conduct had not occurred.[7] Imprisonment for public drunkenness has ceased completely because of the change to legislation, whereas as recently as 1983 almost 300 people in Western Australia were imprisoned for public drunkenness.[8]

The community development model used to implement the sobering up centre component of this program has proved advantageous in handling the diversity of community opinion. Even in cases where there has been disagreement, there has generally been enough understanding as to the reasoning behind a particular course of action to avoid polarisation of opinion and opposition to establishment of a sobering up centre. The lesson from working with communities in developing this project is that if the process is meticulously attended to, the result tends to take care of itself.

Simply setting up the centres however, does not mean that the job is finished. Research carried out on the effects of decriminalisation programs has to date been unsatisfactory. Accordingly, no clear conclusions can yet be drawn as to the effectiveness of such programs in achieving decriminalisation aims. The ideal is clear, but the reality needs to be investigated more thoroughly. The Western Australian program is still in its infancy and while some preliminary evaluation has been reported in this paper it is vital that a rigorous long term program of research and evaluation accompanies the development and elaboration of the decriminalisation process.

[1] Finn, P. (1985). "Decriminalisation of Public Drunkenness: Response of the Health Cam System". Journal of Studies on Alcohol, 25, 1, 7-23.

[2] McDonald, D.N (1985) Sobering up shelters for people four drunk in public places: The Northern Territory experience. Internal Research Paper, Northern Territory Drug and Alcohol Bureau.

[3] Vincent, P. (1988). Interim lnquiry into Aboriginal Deaths in Custody in Western Australia. Unpublished Report, Western Australian Government.

[4] Muirhead, J.H (1988) Royal Commission into Aboriginal Deaths in Custody Interim Report. Canberra: Australian Govemment Publishing Service.

[5] Dodson, P. (1990) Royal Commission into Aboriginal Deaths in Custody, Regional Report of Inquiry into Individual Deaths in Custody in Western Australia, Vol.2, p.832., AGPS, Canberra.

[6] McDonald, D.N (1990) Arrests, Custody and Bail, Kalgoorlie, 1987 and 1990. Research Paper No.18. Parkes: Royal Commission into Aboriginal Deaths in Custody.

[8] Western Australian Prisons Department (1983). Annual Report of the Prisons Department from July 1,1982 to June 30,1983, Government Press, Perth.

•	Reduce the number of cases heard before the Court of Petty Sessions.
•	Reduce the time police devote to persons apprehended for public drunkenness.
•	Reduce the cost of dealing with persons who are apprehended for public drunkenness.

•	Decrease the number of persons in police lockups for public drunkenness.
•	Decrease the incidence of death and self inflicted harm among persons apprehended by police for public drunkenness.
•	In locations where sobering up centres have been established, enable a high proportion of persons apprehended for public drunkenness to be sobered up in these settings.
•	Operate centres that offer equally to all clients, a non-judgemental, safe, clean and caring environment in which to sober up.

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