The expansion provides police with the ability to issue an on-the-spot fine, or charge a person, for continuing to be intoxicated and disorderly after being given an opportunity to comply with a formal ‘move on’ direction by police.
The report, Policing intoxicated and disorderly conduct: Review of section 9 of the Summary Offences Act 1998, assesses the NSW Police Force’s operation of section 9 and the issuing of penalty notices in respect to the offence. The Ombudsman made 17 recommendations, 13 of which revolve around further training and education, policy advice, and guideline amendments for the NSW Police Force to give it a better understanding of the provisions of section 9 and their requisite uses.
Two clear concerns are articulated in the report in relation to the power: the impact on vulnerable groups who are already overrepresented in the criminal justice system (the Ombudsman has found that section 9 has been applied to a worrying number of vulnerable people during the day), and the interchangeable use of section 9 with section 199 of Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA); ‘failure to comply with direction’.
Statistics from the report reveal that in the first year of the legislation, 40% of fines issued were given to ‘vulnerable people’; a legislative term referring to groups who are disadvantaged when dealing with the criminal justice system – Aboriginal people, children, the homeless, or those who have a mental illness, intellectual disability or cognitive impairment.
According to the report’s statistics, Aboriginal people have been particularly affected. Of the 484 section 9 fines or charges issued during the review period, 31% (150) were issued to Aboriginal people. This is an alarming number, as Aboriginal people comprise just 2.5% of the NSW population.
Unfortunately, recommendations in the report focused on amending the resulting disadvantage to vulnerable sectors of the society have been rejected by the NSW Police Force. In response to the report’s recommendations, a spokesperson for the NSW Police Force stated ‘‘[T]here is no evidence to suggest that this legislation has adversely impacted on vulnerable groups.” The Ombudsman has noted this is at odds with available evidence.
The report notes that one justification for the implementation of the section 9 offence was to enhance policing of more serious incidents of violence and public disorder that could not be provided for under section 199 of LEPRA. However, the Ombudsman found that the police are using section 9 for a broad array of behaviours, not necessarily with a focus on violence, which could be dealt with under section 199. The report found that:
‘... [T]he new provisions did not provide police with a significant additional tool to manage or reduce alcohol-related crime during the review period. By far the majority of the incidents resulting in legal action under section 9 could have been dealt with by police using the existing ‘failure to comply with direction’ offence provision at section 199 of LEPRA …’
Discretion around the issuing of Criminal Infringement Notices (CINs) is also highlighted, along with the apprehension that CINs are being issued in circumstances where they would consequently be withdrawn, based on the Internal Review Guidelines for Penalty Notices under the Fines Act 1996. The lack of strong guidelines stipulating when and where section 9 fines should be imposed is of concern to the Ombudsman.
The report suggests there is a need for further education of frontline officers regarding exercising discretion, especially in relation to issuing CINs to vulnerable members of society. While an officer may regard issuing a penalty or infringement notice as lenient, rather than issuing a court attendance notice, for vulnerable people this has the potential to severely affect their ability to meet basic needs while they attempt to pay off the standard fine.
In 2014, Parliament increased the fine for a section 9 offence from $200 to $1,100, whereas a section 199 fine has remained at $200. The report criticises the arbitrary nature of the application of section 9 and section 199 fines, in the absence of clear guidelines for police and the public. The impact on vulnerable people is of particular concern given the severity and difference in outcome of receiving a section 9 fine.
Additionally, the report criticises the requirement set by the Police for those requesting a review of their CIN on the grounds of their vulnerability. A vulnerable person must provide an expert report, or other documentation, demonstrating a causal link between their identified vulnerability and the lack of understanding or control over their conduct.
Ultimately, the report notes that although the powers were purposely drafted with wide discretion, these were intended to be accompanied by police guidelines stipulating they would be used to target violent disorder in select locations. RLC is of the view that misuse of discretion was an obvious risk with the introduction of these powers, and that the creation of guidelines should not have been omitted from the legislation, leaving it to be addressed by external sources three years later.
