Move On Directions & Detaining an Intoxicated Person Found in a Public Place in NSW Laws

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Poppy Morandin and Jimmy Singh.

An expert panel comprised of police and First Nations health and legal professionals has released a report detailing the plan to enable Victoria to transition from criminalising ‘public drunkenness’ to a health-based system.

Prior to the coronial inquest into the death of 55-year-old Yorta Yorta woman Tanya Day in police custody, Victorian Premier Daniel Andrews promised to abolish the offence of public drunkenness and established the Expert Reference Group to formulate the replacement public health response.

In December 2017, Ms Day fell asleep on a V/Line service train from Echuca to Melbourne.

A train conductor checking passengers’ tickets found her lying on a seat, with her feet across the aisle way, and requested that Victoria Police were called.

She was taken off the train by V/Line officials at Castlemaine and handed over to police who arrested her for being drunk in a public place, and subsequently took her into custody at Castlemaine police station so she could ‘sober up’.

Whilst inside the cell, CCTV footage revealed that Ms Day struck her head at least five times, through stumbling and hitting her head on the concrete walls, over four hours.

She suffered traumatic brain injuries and died 5 days later in hospital.

“Ms Day’s death was clearly preventable had she not been arrested and taken into custody.” said Caitlin English, Deputy State Coroner.

Ms English summarised that: “there was no justification for the offence of public drunkenness to remain in the Summary Offences Act 1966 some 30 years after the Royal Commission into Aboriginal Deaths had recommended its abolition.”

The 1991 Royal Commission into Aboriginal Deaths in Custody recommended that the offence of ‘public drunkenness’ be decriminalised.

It found that disproportionate numbers of arrests for the offence involved First Nations peoples.

Aboriginal people were three times more likely to be in police custody for drunkenness than non-Aboriginal people.

Victoria and Queensland remain the only states who have not followed the recommendation thus far.

Currently, pursuant to Section 13 of the Summary Offences Act 1966 (Vic), any person found drunk in a public place shall be guilty of an offence, which is punishable by a fine of $1,321.76.

The Expert Reference Group stated in their report that the new health-based system should be based on the “fundamental premise that no-one should be placed into a police cell simply because they are intoxicated in public.”

It recommended that in accordance with “the passage of legislation decriminalising public drunkenness” that a public health model is implemented which ensures that first responders to a public intoxication incidents should be “personnel from health or community services organisations, such as outreach services…alcohol and other drugs services and Aboriginal Community Controlled Organisations.”

Furthermore, it states that new transport options should be available in order to get the intoxicated persons to ‘places of safety’ such as “a private residence, an emergency department or urgent care centre if they require urgent medical care, or a sobering service.”

“Victoria Police will only have a role to play in the transportation of an intoxicated person when there are no other options available.” stated the report.

It outlined that Victoria Police should only be able to detain an intoxicated individual in “strictly limited circumstances” including where the person is a “serious and imminent risk of significant harm to the intoxicated individual or other individuals”.

In response to the release of the report, the family of Ms Day released a statement detailing: “as our mum’s case shows, police cells are unsafe places and no person should ever be locked up just for being drunk in a public place. Public drunkenness is a public health issue that needs a public health response. We have ongoing concerns about any role that police might play in any response moving forward, given that whenever police have discretionary powers, this opens the way for discriminatory policing, too often experienced by Aboriginal and Torres Strait Islander people.”

“The Andrews Government must now back their words with action and work with Aboriginal communities and organisations to implement the public health response so that no other Aboriginal people die in custody. Ongoing, Aboriginal-led oversight of this process is integral to ensure that the public health response is a culturally safe one.”

In NSW, the offence of ‘public drunkenness’ was abolished in 1979, following reform to public order legislation.

Table Of Contents

Move On Directions To Intoxicated Persons in Public Places in NSW
Can Police Detain an Intoxicated Person in a Public Place in NSW?

Move On Directions To Intoxicated Persons in Public Places in NSW

However, currently, pursuant to section 198 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), a police officer may direct an intoxicated person in a public place to leave and not return for a specified period, if the officer believes on reasonable grounds that the person’s behaviour is disorderly or is likely to cause injury to others, damage to property or otherwise present a risk to public safety.

The period during which a person may be directed not to return to a public place is not to exceed 6 hours after the direction is given.

Failure to comply with this direction, after a warning has been given by police that a failure to comply is an offence results in a $220 fine.

Can Police Detain an Intoxicated Person in a Public Place in NSW?

Police can detain a person who is found intoxicated in a public place in NSW only if that person is behaving in a disorderly manner or manner likely to cause injury (which could also amount to assault charges) to the person or another or damage to property; or if the person is in need of physical protection due to his/her intoxication, pursuant to section 206 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

A police officer is permitted to detain an intoxicated person if his/he behaviour constitutes an offence under section 9 of the Summary Offences Act 1988 (NSW) provided the detention is not for the purposes of taking proceedings for the offence.

This means, a police officer in NSW is allowed to detain an intoxicated person if he/she fails to comply with a move on direction for being intoxicated and disorderly in a public place, provided section 206 is complied with.

The maximum penalty is $1,650 under section 9(1) of the Summary Offences Act 1988 (NSW) if a person who’s given a move on direction for being intoxicated and disorderly in a public place, and at any time within 6-hours after the move on direction is given, is intoxicated and disorderly in the same place or another public place.

Where a police officer exercised the above powers to detain an intoxicated person, the officer is required to:

Take the intoxicated person and release him/her into the case of, a responsible person willing immediately to undertake the care of that person; or
Take the intoxicated person and detain him/her in an authorised place of detention if:
- It’s necessary to do so temporarily for purposes of finding a responsible person willing to undertake the care of him/her; or
- A responsible person can’t be found to do this or if the intoxicated person refused to be released into the care of a responsible person, and it’s impracticable to take him/her home; or
- The intoxicated person is behaving or is likely to behave so violently that a responsible person would not be capable of taking care of and controlling the intoxicated person.

A further safeguard includes, the requirement for a police officer, when detaining an intoxicated person, to do so under such reasonable restraints as is necessary to protect the intoxicated person and other person from harm and property damage.

If an intoxicated person is so detained in an authorised place of detention, the intoxicated person:

Is required to be provided with a reasonable opportunity to contact a responsible person.
As far a reasonably practicable, be kept separately from any person detained at that place in connection with the commission or alleged commission of an offence.
If under the age of 18, must as is reasonably practicable, be kept separately from any person over that age detained at that place.
Must not be detained in a cell at that place unless it’s necessary so to so, or unless it’s impracticable to detain him/her elsewhere at that place.
Must be provided necessary drink, food, bedding and blankets appropriate to his/her needs.
Must be released as soon as the person ceases to be an intoxicated person.

As explained by Professor Luke McNamara, and Professor Julia Quilter, due to such scheme, advocates have contended 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.”

Have a question? Get in touch with our criminal lawyers in Newcastle today.

Published on 05/12/2020