LIRC Researchers Highlight the Need to Consider Anti-Social Behaviour in the Callinan Review of the Lock Out Laws

In recent months there has been much debate and criticism of the NSW Government’s decision to introduce the Liquor Amendment Act 2014 (NSW), which amended the Liquor Act 2007 and implemented what are colloquially known as the ‘Lockout Laws’ in an attempt to address alcohol-related violence. Currently the Hon Ian Callinan is undertaking a review of the 1.30am lockout laws and 3am cessation of liquor sales to determine whether their policy objectives remain valid and their terms appropriate for securing those objectives. In submissions to that Review, LIRC members, Associate Professor Julia Quilter and Professor Luke McNamara (UNSW and Visiting Professorial LIRC Fellow), highlight a lesser discussed issue: whether they have met the policy objective of reducing anti-social behaviour.

As discussed in the NSW Department of Justice’s Background Paper to the Review, the rationale behind the 2014 Liquor Law amendments was not only to reduce ‘alcohol-related violence’ but also to address ‘anti-social behaviour’. Yet, that Background Paper provides no statistical data or analysis on the impact of the laws on anti-social behaviour. In their submission, Quilter and McNamara argue that it is important that the Review give discrete treatment to the assessment of anti-social behaviour – behaviour which is not synonymous with criminal behaviour. Anti-social behaviour is a phrase generally referring to undesirable behaviour that does not involve criminal harm (eg loud or boisterous behaviour in public; public urination) – but which may give rise to a criminal offence. Although not exhaustive of the category ‘anti-social behaviour’, Quilter and McNamara submitted that data should be obtained by the Review and analysed, in relation to charges and Criminal Infringement Notices (CINs) for offensive conduct, offensive language and for continuation of intoxicated and disorderly behaviour charges (respectively under ss 4, 4A and 9 of the Summary Offences Act 1988 (NSW)). Data should also be obtained about the number of intoxication move-on directions issued under s 198 of the Law Enforcement (Powers and Responsibilities Act) 2002 (NSW), and the number of charges and penalty notices for non-compliance.

Quilter and McNamara also highlight in their submissions that the Liquor Law amendments in 2014 were part of a legislative package that included the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW). The latter law, significantly increased the value of a CIN for three of the offences discussed above under the Summary Offences Act 1988 (NSW): offensive conduct in a public place (s 4) – from $200 to $500; offensive language in a public place (s 4A) – from $200 to $500; and continuation of intoxicated and disorderly behaviour in a public place (s 9) – from $200 to $1,100. Furthermore, the maximum penalty for the s 9 offence was increased from 6 penalty units ($660) to 15 penalty units ($1650). Quilter and McNamara submitted that not only are these laws enforced in high numbers each year, their potential for harsh and disproportionate impact on Indigenous persons has a long history. Furthermore, they submit that while the primary focus of the current Review is the effect of the 2014 Liquor Law amendments in the Sydney CBD Entertainment and Kings Cross precincts, it is important to recognise that the changes to the Summary Offences Act 1988 (NSW) are not geographically limited and operate across all of NSW.

Finally, Quilter and McNamara submitted that the Review should examine the availability and effectiveness of strategies that operate outside the strictly legal regulatory environment. For example, public urination (often after consumption of alcohol) is a frequent reason for charges and CINs for offensive conduct in a public place under s 4 of the Summary Offences Act 1988 (NSW). Solutions that do not require police involvement, including the escalation of risk associated with encounters between police and intoxicated persons, should be encouraged. These include, the wider availability of public toilets, including ‘permanent pop-up public urinals at identified sites within the late night entertainment precincts of Kings Cross, Oxford Street, and George Street’ [J Robertson, ‘Sydney Rate-payers to pay a pretty penny for pop-up urinalsThe Sydney Morning Herald, 8 April 2014.

A/Prof Quilter and Prof McNamara’s submissions to the Review can be accessed via the Liquor Law Review website.

They have also written widely on the topic of public order offences: see for example, ‘Time to define “the cornerstone of public order legislation”: the elements of offensive conduct/language under the Summary Offences Act 1988 (NSW)’ (2013) 36(2) University of New South Wales Law Journal 534-562 accessible at http://www.austlii.edu.au/au/journals/UNSWLJ/2013/20.html

Associate Professor Julia Quilter

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