LIRC members, Associate Professor Julia Quilter and Visiting Professorial Fellow Luke McNamara have recently made detailed submissions to the Senate Legal and Constitutional Affairs Committee Inquiry into the need for a nationally-consistent approach to alcohol-fuelled violence.
The Senate Inquiry relates to the general topic of:
The need for a nationally-consistent approach, negotiated, developed and delivered by the Federal Government together with all state and territory governments, to address and reduce alcohol-fuelled violence, including one-punch related deaths and injuries across Australia
with further more detailed reference to a number of matters.
Off the back of past and current research , A/Prof Quilter and Prof McNamara’s submissions address three matters: the need for a nationally consistent approach to defining ‘intoxication’ for criminal law purposes; whether there is a need for a nationally consistent approach to one-punch related deaths and injuries; and current law and practice in relation to the sentencing of offenders who were intoxicated at the time of the commission of the offence.
In relation to the first matter, A/Prof Quilter and Prof McNamara’s submissions argue that any nationally-consistent approach to ‘alcohol-fuelled violence’ must first grapple with the question of defining ‘intoxication’ for legal purposes. They point out that while Australian criminal law statutory provisions are frequently concerned with intoxication by alcohol, the law also includes intoxication caused by other drugs. Care needs to be taken in relation to this Inquiry as the legal concept of ‘intoxication’ is now wider and more complex than when it was limited to the effects of alcohol consumption. Their current research indicates that of more than 500 different criminal law provisions in Australia attaching significance to intoxication, there is no single or widely accepted definition of intoxication. Under-definition is widespread. Multiple different forms of language are used to draw the line between sobriety (or ‘acceptable’ levels of alcohol consumption) from alcohol (and other drug) consumption of a sufficient magnitude to warrant the intervention of the criminal law. Furthermore, where there is an attempt to draw that line statutory language is often poorly adapted to that task. They recommend that serious consideration be given to the national standardisation of legislative terminology.
In relation to one-punch laws, drawing on the work of A/Prof Quilter, A/Prof Quilter and Prof McNamara submit that recent moves (WA in 2008; NT in 2012; and NSW, Queensland and Victoria in 2014) to introduce various forms of assault causing death offences, were unnecessary. These laws have to date produced unnecessary legal complexity and operational problems. They recommend that no further offences regarding assault causing death be added to the statute books. If the Inquiry find there is a need for a nationally consistent ‘one-punch law’, they submit that it should be drafted in a way that squarely places it within a third category of fatal violence – that is, one less serious than murder and manslaughter.
Finally, the submissions discuss current law and practice in relation to the sentencing of intoxicated offenders and when intoxication may be found to be a mitigating or an aggravating factor. They note that the NSW Sentencing Council has previously examined a proposal that intoxication be treated as a ‘mandatory’ aggravating factor where ‘the offence involved violence because the offender was taking, inhaling or being affected by a narcotic drug, alcohol or any other intoxicating substance’. The report can be found here. That Report extensively quotes from their previous submissions (with Dr Seear and Prof Room). Ultimately, the NSW Sentencing Council recommended against adopting intoxication as a mandatory aggravating factor in sentencing. A/Prof Quilter and Prof McNamara endorse that recommendation.
A/Prof Quilter and Prof McNamara’s submissions become Committee documents but can be accessed via the Inquiry’s homepage.
 NSW Sentencing Council, ‘Alcohol and drug fuelled violence’ (August 2015). While this report was prepared in August 2015 and forwarded to the NSW Attorney General it was only publicly released in March 2016.
Associate Professor Julia Quilter