Public drunkenness 1788-present
Public drunkenness laws in New South Wales have historically been used to target intoxicated behaviour, particularly in Aboriginal communities. These laws were removed in 1979 because they did not address alcohol-related problems. In 2011, it became a crime again to be intoxicated and disorderly in a public place following a ‘move on’ order, bringing back a punitive approach to policing intoxicated behaviour. This has reignited concerns about treating complex social and health issues as criminal matters.
Laws Prohibiting Public Drunkenness
The Vagrancy Act 1835 (NSW) was the first law to criminalise being a ‘habitual drunkard’ in public spaces including streets, highways or places of public gathering. If convicted, offenders could be imprisoned or sentenced to hard labour for up to three months (). Laws continued to criminalise public drunkenness until 1979 (, , ).
For much of the 20th century, public drunkenness was the most-policed public order offence across Australia. The offence has been described as a ‘street-sweeping’ mechanism for police ().
During much of this period, the Aborigines Protection Act 1909 (NSW) banned the sale of alcohol to Aboriginal people, which initially limited their exposure to policing for public drunkenness (). However, as these restrictions began to be lifted, Aboriginal people became increasingly subjected to policing under public drunkenness laws, contributing to the growing over-representation of Aboriginal people in police custody ().
Decriminalisation of Public Drunkenness
In 1979, the law was changed so that public drunkenness was no longer a crime. Police were given the power to remove an intoxicated person from a public area and to take them to a ‘proclaimed place’ (either a police cell or a community centre) for up to eight hours (). This is commonly referred to as ‘protective custody’ (, ).
This reform followed studies conducted in 1972 and 1973 by the New South Wales Bureau of Crime Statistics which highlighted the ineffectiveness of prisons in stopping alcohol abuse (, , ).
However, despite the law’s intention, a lack of ‘proclaimed places’ meant that many intoxicated people were still detained in police cells (, ).
In 1980, 25,982 individuals were detained in Sydney under these new laws with 36% detained in police cells ().
In 1987, the Royal Commission into Aboriginal Deaths in Custody found that for 35 of 99 deaths in custody examined between January 1980 and May 1989, the person had been detained for intoxication/public drunkenness (, , ).
The Royal Commission found that despite the decriminalisation of public drunkenness in 1979, there was an increase in police stopping and detaining Aboriginal people in the following years. The report noted that that this increase was not the result of increased drunkenness in the community but instead a result of a deliberate policing strategy purported to control crime ().
Also in 1987, the Aboriginal Law Centre reviewed police detentions in the remote town of Wilcannia over a six-month period. Of the 259 people detained, 98% were Aboriginal. One of the main reasons was the lack of community operated ‘proclaimed places’ under the law ().
Commentators have stated that despite the decriminalisation of public drunkenness, the new ‘protective custody’ laws had ‘a disproportionately coercive and punitive impact on Aboriginal people in NSW’ (, ).
Changes to the law
In 1985 the law changed so that police cells were only to be used as a ‘last resort’. This change allowed intoxicated people to be released into the care of a ‘responsible person’ (ie a friend or relative) instead of being held in police cells ().
In 2000, further changes to the law required police, where possible, to first attempt releasing an intoxicated individual into the care of a responsible person before resorting to police detention. Additionally, ‘proclaimed places’ were removed, and the definition of intoxication was expanded to include individuals affected by drugs ().
In 2005 this law was repealed (cancelled), and its provisions were moved to the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), which remains in use today ().
Recriminalisation of public drunkenness – failure to move on
In 2011, being intoxicated and disorderly in a public place became a crime again in circumstances where a person fails to move on within six hours of being issued a ‘move on’ direction, regardless of whether it is in the same or a different public location (). Police could give a ‘move on’ direction to intoxicated people to leave public places if they believed their behaviour was disorderly (, ).
The law aimed to reduce alcohol-related violence in entertainment districts (). However, concerns were raised in Parliament about the potential impact these new laws would have on vulnerable and marginalised groups including Aboriginal communities, the homeless, young people, and those with mental health issues ().
One Parliamentarian called it a ‘regressive move’ that contradicted key recommendations made by the Royal Commission into Aboriginal Deaths in Custody (). In a letter read out in parliament, the New South Wales Aboriginal Land Council argued that by creating a new offence the law ignored the Royal Commission’s recommendations to decriminalise public drunkenness (Recommendation 79), to fund non-custodial care and treatment facilities for intoxicated persons (Recommendation 80), and to mandate police to seek alternatives to police custody for intoxicated persons (Recommendations 81) ().
In 2012, the New South Wales Ombudsman released early findings from its review of the new offence. It found that ‘while the Indigenous population rate for New South Wales is around 2.5%, New South Wales Police Force data indicates around a third of people subject to this legislation between October 2011 and May 2012 were Indigenous’ ().
In 2014, the Ombudsman released its final report. It found that 31% (150) of fines issued during the first 12 months of the new offence were issued to Aboriginal people ().
The report also considered the data relating to ‘move-on’ directions issued by police which found that Aboriginal people were no less likely to comply than the rest of the population but rather, that the disproportionate impact of this offence on Aboriginal people stemmed from being issued significantly more ‘move-on’ directions that the rest of the population ().
For more information
This part of Towards Truth highlights criminal offences that have had a particularly disproportionate impact on Aboriginal people in NSW. See also Contemporary Policing (coming soon) which considers the impact of police discretion and other policing practices.
The law and policy in this subject is accurate as of 1 December 2025.