New laws giving police the power to move on people who are slurring their words will cement a long tradition of criminalising Aboriginal people for public order offences. The recently announced powers will allow New South Wales police to direct those who are noticeably drunk away from a public place. Failure to comply can lead to arrest for a criminal offence.
History shows Indigenous people are most likely to be caught by this type of legislation and incarcerated for the mere appearance of intoxication.
The move-on laws have the peculiar flavour of targeting people who are not committing a crime or even suspected of committing a crime. They are activated where people are deemed drunk.
The new law, which amends the Law Enforcement (Powers and Responsibilities) Act, lowers the threshold from "seriously" drunk to "noticeably" drunk. This significantly broadens the police move-on power and is likely to apply to a wide section of society.
If a person directed to move on returns to the area, he or she will be charged with a criminal offence. A study by the Aboriginal Legal Service of Western Australia found more than 75 per cent of people who were arrested for breaching their move-on notices did so simply by walking, standing or sleeping in the area prescribed by the move-on notice.
In one case, a direction that operated for 24 hours forbade young boys from going to school the next day. They were later arrested for going to a shopping mall accompanied by their mother to get their hair cut.
Move-on powers disproportionately affect Indigenous people and communities. According to an ombudsman's review of the move-on powers, there was a very high incidence of police issuing such directions in parts of NSW with large Aboriginal populations.
Almost a quarter of all move-on directions were issued to Indigenous people, particularly the young, far in excess of their proportion of the population. This trend goes hand-in-hand with the wide criminalisation of Indigenous people for public order offences.
Western Australia has the most draconian move-on laws, with penalties of up to $12,000 or 12 months' imprisonment for failure to comply.
The state's Aboriginal Legal Service found police used the WA laws as a mechanism for the social control of Aboriginal people, limiting their access to welfare, health and legal services. The directions are difficult to understand and their targets are unsure of how far and for how long the directions apply.
In NSW the new laws will take another step towards recriminalising intoxication. In 1991 the royal commission into Aboriginal deaths in custody recommended that public intoxication be decriminalised because of the huge impact it had on the detention of Aboriginal people and consequent deaths in custody. This ushered in reforms to decriminalise intoxication in the 1990s and a shift in the approach to one of protective or therapeutic incarceration for drunks, including sobering-up shelters (often police cells).
The discriminatory policing of drunk Aboriginal people is blatant. Indigenous people are 42 times more likely than other Australians to be in custody for public drunkenness. In 2005 the Australian Institute of Criminology identified public drunkenness as a key issue relating to police custody. In October 2002 it found that of those detained by police there were 17 times more Aborigines than all other groups.
Through its move-on slurring powers, the NSW Government has provided another back-door means for incarcerating drunk Aboriginal people. The police will have wide discretion and will set the bar for public drunkenness as low as they deem appropriate. It is another sad attempt to criminalise indigenous behaviour rather than criminal activity.
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