Notes for speech by Michael Cope to Community event on reinstating public drunkenness 22 June 2025
Acknowledge owners and thanks
FOUR CATEGORIES
Queensland was the last state to decriminalize public drunkenness when section 10 of the Summary Offences Act was repealed. Under that section a person who was drunk in a public place faced a maximum penalty of 2 penalty units (approximately $287).
It should be noted that the police can still detain an intoxicated person:
(i) if the person is behaving in a way that—
(A)is disorderly, offensive, threatening or violent; and
(B)is likely to interfere with the peaceful passage through, or enjoyment of, the public place by a member of the public; or
(ii)the person is behaving in a way that is likely to risk the life, health or safety of any person, including, for example, the person to be detained; or
(iii) the person is incapable of preserving the person’s own life, health or safety.
Furthermore, a police officer may detain the intoxicated person in police custody if they cannot find a safe place for them within a reasonable distance or they cannot transport them to such a place.
On 12 June 2024 the Police Minister Mr Purdie signaled that the government was considering re criminalizing public drunkenness saying the police are saying that they now struggle in some instances, to take appropriate action.
Another MP is quoted as saying the change is significantly impacting livability in our beautiful part of the world[1].
In doing so the government would be undoing 35 years of work (the time since the deaths in custody Royal commission) on another view 50 years of work (the time since the first decriminalisation of public drunkenness which occurred in 1974)
the Royal Commission into Aboriginal Deaths in Custody called for the decriminalisation of this offence as part of the 339 recommendations made relating to reducing the numbers of Indigenous people coming into contact with the Australian criminal justice system.
However, the decriminalisation of public drunkenness had begun in the Northern Territory in 1974. New South Wales legislated in 1979, not only to decriminalise public drunkenness, but also to implement a form of alternative care.
No doubt the focus of today's event is on the question of the effect of reinstating public drunkenness as an offence in the context of the risks to indigenous people in the criminal justice system. However, I would like to take a few moments to discuss it in the broader context.
John Stuart Mill argues for responsible alcohol consumption as a private pleasure, which the government has no authority to interfere with as long as the drinker is not harming another person.
Mill rejects the assertion that a person's actions inherently have some effect on society or that an act that harms the individual also harms society. Mill responds to these challenges on two levels.
First, he acknowledges that if a person's “self-regarding” conduct disables them from performing some public duty or produces identifiable harm to another person, then that conduct properly cannot be considered “self-regarding,” and society may control or punish the person. Using alcohol intoxications as an example, Mill explains: “No person ought to be punished simply for being drunk; but a soldier or a policeman should be punished for being drunk on duty. Whenever, in short, there is a definite damage, or a definite risk of damage, either to an individual or to the public, the case is taken out of the province of liberty, and placed in that of morality or law” . To the extent that the “harm” to others from drinking alcohol is amorphous or that the drinker violates no specific duty, Mill views the ancillary “harm” from the drinker's action as an “inconvenience . . . which society can afford to bear, for the sake of the greater good of human freedom”.
if an inebriated person does harm another person, then the government rightfully may prohibit that person from becoming inebriated in the future. “Drunkenness,” Mill explains, “in ordinary cases, is not a fit subject for legislative interference; but I should deem it perfectly legitimate that a person, who had once been convicted of any act of violence to others under the influence of drink, should be placed under a special legal restriction, personal to himself; that if he were afterwards found drunk, he should be liable to a penalty. . . .
Moving on from Millian arguments.
The offence of public drunkenness effectively criminalises poverty and has a disparate application to Indigenous peoples.
For those experiencing housing insecurity, public drinking may be “a result of necessity, due to a lack of access to private spaces in which to lawfully drink.”[2] One respondent to a survey conducted by Rights in Public Spaces Action Group stated:
It’s a class issue … If you can afford to go to a restaurant that has outdoor dining, you can drink 'til your heart’s content … but what if you can’t afford it and you are homeless … where do you go?[3]
Returning to the Royal Commission
A lot of this debate is conducted in the light of the Report of the Royal commission into deaths in custody and rightly so as it stands as a major work of analysis and policy prescriptions. It is appropriate then to remember some of its key points.
7.1.11 The report found public drunkenness represented 35% of custody cases nationally. Overall, some 46% of the public drunkenness cases were Aboriginal people and more than three-quarters of the female drunkenness cases (78%) were Aboriginal. Drunkenness cases made up 57% of the Aboriginal custodies compared with 27% of the non-Aboriginal custodies.
The commission recognized that up to its time decriminalization had had only limited success but observed that the reasons varied from region to region. In para 21.1.4 of the report it noted In some cases, there is inadequate provision of alternative custodial facilities or shelters. In others, police practices appear particularly oriented towards addressing non-Aboriginal political and social priorities, with too little attention to responding to the social contexts of Aboriginal behaviour and negotiating with local Aboriginal communities to address such.
At para 21.1.35 the Commission said that legislation governing public drunkenness should require the apprehension and detention of a person only in those circumstances where the person is intoxicated to the extent that he/she is incapable of taking proper care of himself or herself, is behaving in a manner which is likely to cause harm to others or likely to cause damage to property. A reasonable belief that a person is intoxicated should not, of itself, be sufficient to warrant police intervention.
In para 21.1.40 the Commission said, decriminalisation should not imply that an institutional alternative (i.e. police cell or sobering-up centre) is always required for the management of intoxicated persons. … discharge at the place of residence of the person or discharge into the care of the person 's solicitor, relative or friend are options. ,,,,It must be added, however, that many submissions received from Aboriginal people have emphasised the undesirability of returning heavily intoxicated persons to their homes because of the family disruption likely to be caused.
The Royal Commission’s report highlights another significant issue in that detention for public drunkenness in rural areas is much longer than for those in metropolitan areas, a problem made even worse for Indigenous peoples. A 1998 survey found that for public drunkenness “the average length of time in police custody for [First Nations] people was approximately 17 hours in Cairns compared with 7.6 hours in Brisbane.”[4]
The Commission said, the inappropriateness of the use of police cells for the care of intoxicated persons must be positively accepted and addressed by both governments and police services.
Despite the Commission’s impressive work there have been 590 indigenous deaths since the royal commission
In 2022–23, there were 21 Aboriginal and Torres Strait Islander deaths in prison custody the highest number of Indigenous deaths in prison custody since 1979‒80 . Aboriginal and Torres Strait Islander prisoner deaths accounted for 30 percent of deaths in prison custody over the 12-month period, greater than the average (18%) recorded since 1979–80.
The death rate among the Indigenous prisoner population in 2022‒23 was 0.15 per 100 Indigenous prisoners
In 2022-23 there were 49 non indigenous deaths in custody. The death rate of non-Indigenous prisoners was 0.17 per 100 non-Indigenous prisoners.
But of course, because of the significantly higher rate of imprisonment of indigenous people their exposure to the risk of death is higher
Aboriginal and Torres Strait Islander people comprise three percent of the Australian population (ABS 2023b) but made-up 33 percent of the average daily Australian prisoner population in the June quarter 2023 (ABS 2023a).
Research continues to show that a majority of deaths in police cells occur to individuals detained for drunkenness.[5]
According to crime data from the Australian Bureau of Statistics for the year 2020-21, 32% of public order offences (including public drunkenness) are recorded against First Nations peoples, a significant increase from 20% in 2008-9.[6]
Noting then that:
1. Indigenous peoples make up only 4% of the Queensland population,
2. The majority of deaths in police cells are of those held for drunkenness
3. And 32% of public order offences are recorded against indigenous people
It is clear that a key to reducing indigenous deaths in custody is abolishing the offence of public drunkenness.
As i have noted above the Royal Commission recommended that intoxicated persons should never be placed in police custody. That is not what has been implemented in Queensland.
That said the research does show positive benefits from models that decriminalise public drunkenness where police retain the power to remove intoxicated persons from public places and take them to a safe place while they recover.[7] Research highlights that a health-focused response with the use of sobering-up centres results in reductions in public drunkenness-related emergency service use, incarceration rates and custody time.[8] Alcoholism and alcohol abuse should be dealt with via health and social support systems, rather than in the criminal justice system.[9]
Despite this background it appears the Crissafulli government proposes to reinstate public drunkenness as an offence
Why?
First because allegedly police struggle in certain unspecified situations without it. What is the evidence for this proposition. None has been provided. One presumes it comes from the Police Union which has had an invidious influence on public policy in this state for as long as I can remember.
Secondly because as a result of decriminalization some place is no longer livable. Once again what is the evidence for this extraordinary claim.
No case has been made for this reactionary proposal
To some extent, the reaction to public intoxication is similar to the reaction to homelessness. People do not want to be confronted with the sight of such people. It is uncomfortable for those who are well off to be reminded of the human price that is paid for the social structure within which we live.
Inconvenience or offence, as opposed to violence, experienced by some people cannot justify a law which needlessly exposes some of the most disadvantaged people in our community to the loss of their liberty and the heightened risk of serious injury or death
[1]https://www.theguardian.com/australia-news/2025/jun/12/queensland-weighs-return-to-public-drunkenness-public-urination-laws-ntwnfb?CMP=Share_iOSApp_Other
[2] Tamara Walsh, “Who Is the ‘Public’ in ‘Public Space’?: A Queensland Perspective on Poverty, Homelessness and Vagrancy.” (2004) 29(2) Alternative Law Journal 81, 83.
[3] Ibid 83.
[4] Report 21.1.58.
[5] Luke McNamara and Julia Quilter, ‘Public intoxication in NSW: the contours of criminalisation’ (2015) 37(1) Sydney Law Review, 1.
[6] Australian Bureau of Statistics, ‘Recorded Crime - Offenders’ Australian Bureau of Statistics (Website) < https://www.abs.gov.au/statistics/people/crime-and-justice/recorded-crime-offenders/latest-release#media-releases>.
[7] Intoxicated Persons Act 1979 (NSW); Police Offences Act 1935 (Tas) ss 4A, 4B; Intoxicated Persons (Care and Protection) Act 1994 (ACT).
[8] Amy Pennay et al, ‘Decriminalising Public Drunkenness: Accountability and Monitoring Needed in the Ongoing and Evolving Management of Public Intoxication’ (2021) 40(2) Drug and Alcohol Review 205, 207.
[9] Walsh 83.