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Office of the Commonwealth Ombudsman OWN INITIATIVE INVESTIGATION

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In December 1998, the Ombudsman issued a report into the use of police powers under the Alcoholic Persons (Care and Protection) Act 1994 (ACT). The focus of this report was on the need for the police to adopt practices and procedures commensurate with the 'care and protection' elements of legislation. At the conclusion of the report, the Ombudsman indicated his intention to 'review the operation of the revised arrangements and procedures for dealing with intoxicated persons' one year after the report.

The purpose of this latest study was to determine the extent to which the recommendations of the 1998 report have been implemented by the AFP and the effectiveness of the new practices and procedures. In those cases where the 1998 recommendations have not been implemented, we have examined the reasons for this and assessed the impact this has had on the AFP's management of intoxicated persons in the ACT. In particular, we reviewed the issue of legislative reform and a sobering shelter for the ACT and the effect the absence of either has had on policing practices.

In relation to many of the recommendations in the 1998 report, we have been satisfied that the AFP has adopted practices and procedures which reflect the "care and protection" elements of the legislation. However, we believe that there is still room for further improvements and fine-tuning of police guidelines and practices, especially in relation to:. i) the continued use of caged vehicles despite AFP guidelines stating otherwise. ii) the need for continued efforts for the early release of intoxicated persons from protective custody; and. iii) the continued need for clarification and guidance on officers.

INTRODUCTION

In those cases where the 1998 recommendations have not been implemented, I have examined the reasons for this and assessed what impact this has had on the AFP's management of intoxicated persons in the ACT. In particular, I reviewed the issue of legislative reform and a sobering shelter for the ACT and the effect the absence of either has had on policing practices. I also noticed some new problems that emerged during my last research.

This time frame takes into account the necessary time frame for the implementation of the recommendations of the 1998 report and is consistent with the time frame of the previous study.

OPERATION OF THE ACT

Patrol officers believe the law serves two functions: to protect intoxicated individuals from themselves; and to protect the community from the disorderly conduct of intoxicated persons. Officers view preventive detention as a last resort and repeatedly encourage intoxicated individuals to return home before being taken into custody. Some officers are concerned that liquor license regulations—particularly with regard to continuing to serve intoxicated persons—are exacerbating the problem of intoxicated persons in public.

Officers are skeptical of the value of a sober shelter, believing that in most cases the City Watch House is the most appropriate facility to house intoxicated persons. Some officers believe that many intoxicated persons welcome protective custody, allowing them to "sleep off" the effects of their intoxication in a safe environment. Guard room staff are satisfied that "on-line meeting" procedures (ie, the same procedure for dealing with offenders) are the most effective ways to process intoxicated persons.

Watchtower staff felt that charging drunk persons with serious offenses (where appropriate) was a more effective deterrent to irresponsible drinking than the use of protective custody. Officers from the Woden patrol expressed concern about the loss of patrol time needed to transport an intoxicated person to the town watch, noting that the police sometimes took intoxicated people directly home if appropriate.

Fig. 1: Persons taken into Protective  Custody, 1 July 1995 - 30 June 1998:
Fig. 1: Persons taken into Protective Custody, 1 July 1995 - 30 June 1998:

IMPLEMENTATION OF 1998 RECOMMENDATIONS

1998 Recommendation 3: Guardhouse officers should place in holding cells only those intoxicated people who are violent or likely to harm themselves. This recommendation should be read in conjunction with recommendation 11 of the 1998 report, which suggested that part of the Guard House be converted into a Sober Shelter. However, in the absence of such a shelter, I accept the argument of the AFP that 'the safest place available for intoxicated persons in the Guardhouse is the holding cells which meet all requirements regarding safety and protection against harm and are fully monitored. by video'.17.

During the eight-hour detention period, the member may consider the possibility of handing over the intoxicated person to the custody of a responsible adult, if this makes sense in his opinion. Section 4(3) of the Act allows an intoxicated person to remain in a police station for up to twelve hours after arrest. During the eight-hour detention period, the member examines the possibility of releasing the intoxicated person into the care of a responsible adult, if this is reasonable in his opinion.

Similarly, in my view, the Watchhouse staff should ensure that all details of early release are recorded, including contact details of the nominated responsible adult and any attempts to make such contact. The AFP should revise Guidelines to provide a clear statement of the rights of a person held in protective custody to communicate with a legal representative and/or friends or family. The AFP should review Watch-house recording procedures to ensure that sufficient information relating to early release is recorded, including identification of the responsible adult, any attempts to contact a responsible adult, and any reasons why a responsible adult was not contacted does not become

1998 Recommendation 6: The AFP should amend Regional AFP Guide 4/96 to provide clear guidance to officers on charges of road offenses or the use of other powers, such as disturbing the peace, in relation to persons drunk The AFP must continue to provide training to its officers to ensure that the use of their powers under the Act is consistent with the intent of the Act. The AFP should amend its Guidelines to provide clear guidance to officers on charges of road offenses or the use of other powers, such as breach of the peace, as an alternative to protective custody.

A main purpose of such changes should be to provide clear guidance to the main users of the legislation, the police. From my review of the protective custody records and observation of Watch-house practices, it appears that most Watch-house officers release prisoners when they are sober. Similarly, and despite the AFP's stated intention to the contrary,44 there has been no change to the AFP guidelines to incorporate a documented review process.

In my view, the answer proposed by the AFP in 1998 - 'documented inspection of any person detained in protective custody by a responsible City Guard officer at 4 o'clock' - would satisfactorily meet the need for such an inspection mechanism. The AFP must ensure that the guidelines clearly state the need for officers to be reasonably satisfied of a causal link between a person's intoxication and the existence of one of the three statutory criteria (disorderly behaviour, protection from injury, risk of injury or property damage). before that person is taken into protective custody. The AFP should revise the guidelines to include a documented review by the City Watch-House Officer-in-Charge of each case of an intoxicated person detained in protective custody at the four-hour point.

Pending resolution of establishing permanent Sobering Up Housing, the AFP supports further research in consultation with relevant ACT Government agencies and the Office of the Ombudsman in

OTHER RELEVANT LEGISLATION

Figure

Fig. 1: Persons taken into Protective  Custody, 1 July 1995 - 30 June 1998:
Fig. 2: Persons taken into Protective  Custody, 1 July 1999 - 30 June 2000:
Fig. 4: Hours in Protective Custody,  1 July 1999 - 30 June 2000

References

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