Summary Offences Amendment (Intoxicated and Disorderly Conduct) Bill 2011

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I oppose the Summary Offences Amendment (Intoxicated and Disorderly Conduct) Bill 2011 and note the comments the Premier made in May when he said to members in the other place:

We intend to put meaning back into the Summary Offices Act ... A new offence of drunk and disorderly will include drunk under the influence of alcohol or intoxicated under the influence of drugs.

This is the latest move in a long history of moves by the Liberal Party to include an offence of drunk and disorderly conduct on our statute books. One of the Wran Labor Government's law reform initiatives was to repeal the Summary Offences Act 1970. In 1979 it introduced the cognate crimes bills and the cognate summary offences bills, which proposed to repeal the Summary Offences Act and amend 16 pieces of legislation. I will briefly remind members of the history of offences relating to drunk and disorderly conduct on our statute books.

Changes to the legislation hark from the 1970 Georges River by-election. In an act of blatant electioneering, the then Premier—the notoriously corrupt Robert Askin—went to the by-election seeking a mandate for the introduction of the Summary Offences Bill. The Askin Government was humiliatingly defeated and lost what was until then a blue-ribbon Liberal Party seat. Despite that defeat, the Government proceeded to enact the Summary Offences Act. The Labor Party received a mandate at the 1976 and 1978 elections to repeal that repressive and unfortunate piece of legislation.

The Hon. Michael Gallacher: Pause—for effect.

The Hon. LUKE FOLEY: I am happy to wait. There are now time limits so I will use the entire 20 minutes available to me. When the then Attorney General and Minister for Justice moved to repeal the Summary Offences Act 1970 he said:

The Askin Government was unable to see beyond its own immediate political ends. This Government intends to remedy that completely unsatisfactory situation by implementing provisions which will ensure that the law is placed on a rational and humane basis. Rationality and humanity are two attributes to which that previous Government in its rush to the ballot boxes paid not the slightest heed. I believe that once again today, 41 years after the Georges River by-election of 1970 and 32 years after the repeal of the Summary Offences Act in 1979, we have another Liberal Premier engaged in electioneering at the expense of rational and humane law. An examination of how the Summary Offences Act and the Inebriates Act operated in the past indicates that they were very regressive pieces of legislation. Public drunkenness was punishable as a crime in this State and a drunken person suffered the stigma of being labelled a criminal. That was the impact of that punitive legislation.

The first specific English enactment dealing with public drunkenness was passed in 1606 and had the long title of "An Act for repressing the odious and loathsome sin of drunkenness." It provided for a fine of five shillings or six hours in the stocks if the fine was not paid. It was a punitive measure and the law continued in that vein until the enlightened reforms implemented by the Wran Government in 1979 that removed it from the statute books. I draw members' attention to how the legislation operated when it was on the statute books. Its history is very instructive. In 1979 the maximum penalty was a fine of $10. However, approximately 80 per cent of cases were disposed of by the offenders forfeiting bail of $1 and no further action was taken to bring them back to court.

Most of the offenders who could not raise bail of $1 and who appeared before a court were released without any penalty being imposed. However, some were invariably imprisoned in default. They were arrested, brought before the courts, fined and imprisoned, often repeatedly. I submit that nothing positive was ever achieved in those cases. People with a drinking problem were simply imprisoned, and we know what happens to many people who are incarcerated. From 1972 to 1976, there was an increase in the number of arrests for public drunkenness culminating in 54,928 arrests in 1976. That is an extraordinary number. Dr Tony Vinson, who has been an eminent figure in the field of social policy for many decades, delivered a paper to the Wran Labor Government on victimless crime in which he stated: Our present social response to public drunkenness helps to stigmatise the individual and thereby maintain his socially unacceptable behaviour. The arrest and incarceration of the drunk worsens his social maladjustment by further demoralising him and reducing any chance he may have had of putting his life on a better footing. The repeated experience of arrest, detention and appearance in court labels someone a "drunk" and minor criminal, and thereby encourages the individual to see himself in these roles.

Even more compelling evidence has been revealed since then about what happens when people are locked up simply for being drunk. That is the report of the Royal Commission into Aboriginal Deaths in Custody in 1991. The interim report of that royal commission strongly advocated sobering-up shelters not associated with police or custodial agencies to which a person who became drunk in public could be taken. That was because Aboriginal people were dying while locked up simply for being drunk. In 38 of the 99 Aboriginal deaths in custody investigated by the royal commission the reason that the person was in custody was drunkenness.

The figure was even more dramatic for women. For seven of the 11 deceased Aboriginal women investigated by the royal commission, drunkenness was the most frequent offence. The royal commission taught us that by far the largest number of Aboriginal people in police lockups are those detained for what often is called protective custody, that is, those who are found drunk in a public place and are detained, taken to police cells and kept there for a number of hours until they are thought to be sufficiently sober to be released. When the Royal Commission into Aboriginal Deaths in Custody did its work, in some States people were still being arrested for the offence of public drunkenness. I believe that the work of the Royal Commission into Aboriginal Deaths in Custody is compelling when we enter into this debate. In many ways it endorsed the humane and rational reforms of the Wran Labor Government in 1979 in repealing the Summary Offences Act and taking a far more enlightened view on how society should respond to people who become drunk in public.

Many people have a problem with alcohol and with drugs. Many private agencies, a number of them faith-based, do the most magnificent work in treating and assisting those people. It would be far more appropriate for the Government to fund those organisations, many of whom are faith-based, to provide shelter, food and assistance to people who have an addiction to drink or drugs. Since the offence of drunk and disorderly has existed on our statute books in New South Wales, or in other States of this country, it has impacted on and had a particularly dramatic effect on Indigenous Australians. The commitments made by Mr O'Farrell and his colleagues in the election campaign and since have been about populist electioneering rather than a rational and humane public policy approach to the problem of drunkenness. I oppose the bill.