Summer is typically a filled with celebration, Christmas festivities, New Year’s parties, and often a few drinks. In recent years, ‘alcohol fuelled violence’ has been the subject of significant debate, and the driver of substantial changes to NSW liquor laws.
In Queensland and Victoria, it is an offence to be drunk and disorderly in a public place. The criminalisation of such behaviour in Victoria has recently come under scrutiny following the death of Aboriginal woman Tanya Day in custody after being arrested for public intoxication. After the death of Ms Day, the Victorian government has recently indicated a plan to decriminalise public intoxication.
There is no equivalent offence in NSW. In fact, the offence of public drunkenness was repealed in NSW in 1979. Despite the lack of a distinct ‘drunk and disorderly’ offence, citizens in NSW should be aware of other constraints on their behaviour in public.
Police power to ask you to move on
Under s 198 of the Law Enforcement (Powers and Responsibilities) Act 2002, police can give you a direction to leave a public place if you are intoxicated, and they believe on reasonable grounds that your behaviour is disorderly or is likely to cause injury to another person, damage property, or give rise to a risk to public safety. The police officer’s direction must be reasonable to prevent such risks. You can be required stay away from an area for up to six hours.
A police officer can deem you intoxicated if your speech, balance, co-ordination or behaviour is noticeably affected, and they reasonably believe that this is the result of the consumption of alcohol or drugs.
It is an offence to fail to comply with such a direction. If you don’t leave the area, or return before you are allowed, you can be fined $220.
Continuing to be intoxicated and disorderly following a move on direction is also an offence under the Summary Offences Act and carries a $1650 penalty. However, you cannot be fined under both regimes for the same behaviour.
Police power to detain you
While you won’t be charged for merely being drunk in NSW, the police have the power to detain you if you are found intoxicated in a public place. Under s 206(1) of the Law Enforcement (Powers and Responsibilities) Act 2002, police can detain you if are in a public place and:
- are behaving in a disorderly manner or in a manner likely to cause injury yourself or someone else, or
- your behaviour is likely to cause damage to property, or
- if you are in need of protection because you are intoxicated.
If appropriate, police will take you to a responsible person who is willing to take care of you (such as a family member). However, if police cannot find someone to take care of you, or if it would be impracticable to take you home, police can take you to an authorised place of detention, such as a police station. Police will not leave you with a responsible person if you are behaving violently and that person is not capable of taking care of you.
If you are taken to an authorised place of detention, police are able to search you. Police must not detain you in a cell unless there is no other appropriate place to keep you. You must be given an opportunity to contact a responsible person and must be released as soon as you are no longer intoxicated. Upon release, police must return any of your personal belongings that they took possession of after searching you.
These powers have been scrutinised following a coronial inquiry into the death of Rebecca Maher in custody at Maitland Police Station in 2016. Ms Maher was taken into custody when police observed that she appeared intoxicated in public, and died at the station five hours later.
It is an offence in NSW to engage in offensive conduct in, near, or within view or hearing of a public place, and doing so carries a maximum penalty of 3 months’ imprisonment or $660. The offence can result in a conviction and a criminal record.
What is ‘offensive’ is not defined in the legislation, and the courts will typically evaluate each case on its merits, with regard to community standards.