THE DEFINITION AND SIGNIFICANCE OF ‘ INTOXICATION ’ IN AUSTRALIAN CRIMINAL LAW : A CASE STUDY OF QUEENSLAND ’ S ‘ SAFE NIGHT OUT ’ LEGISLATION

Australian criminal law is being actively reconfigured in an effort to produce a more effective response to the problem of alcohol-related violence. This article uses the Safe Night Out Legislation Amendment Act 2014 (Qld) as a case study for two purposes: i) to introduce a set of conceptual tools and typologies that can be used to investigate the relationship between ‘intoxication’ and criminal law; and ii) to raise a number of concerns about how the effects of alcohol and other drugs are implicated in laws governing police powers, criminal responsibility and punishment. We draw attention to the different and sometimes inconsistent ways in which significance is attached to evidence of the consumption of alcohol and other drugs, as well as to variations and ambiguities in how legislation attempts to capture the degree of impairment or effects that are regarded as warranting the attachment of criminal law significance.


INTRODUCTION
How to reduce alcohol-related violence is one of Australia's most pressing social policy challenges, and many aspects of Australia's 'multi-faceted alcohol policy environment' 1 have attracted considerable research attention. 2Despite the fact that criminal justice policy (including criminal law reform) has been an important and prominent component of crime The Definition and Significance of 'Intoxication' in Australian Criminal Law: A Case Study of Queensland's 'Safe Night Out' Legislation  43   prevention-oriented alcohol policy, it is an under-researched topic.Recent years have seen a significant shift in Australian criminal justice policy towards the explicit identification of intoxication as a factor relevant to the exercise of police powers, criminal responsibility and punishment.Such developments have often occurred as part of a swift government policy response to a specific crisis.For example, two tragic and highly publicised drunken 'one punch' fatal assaults in Sydney's Kings Cross were catalysts for the 2014 introduction in New South Wales ('NSW') of a new offence of assault causing death while intoxicated (Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW)). 3Influenced by events in NSW as well as by local events and concerns, 4 multiple changes to Queensland's criminal law were made in August 2014 by the Safe Night Out Legislation Amendment Act 2014 (Qld) ('SNO Act') -the centre-piece of the then State Government's response to heightened concerns about alcohol-related anti-social behaviour and violence. 5though the sites of criminal law's engagement with intoxication have proliferated recently, the debate over what legal significance, if any, should be attached to the 'fact' that the accused (or the victim) was intoxicated has a long history.At the heart of this debate is a struggle over legal responsibility versus social responsibility, a tension between principle and pragmatism, and a preoccupation with the part played by the criminal law in protecting the community from violence and public disorder.As the Victorian Law Reform Commission stated, it is a 'fundamental element of criminal responsibility that a person should only be held accountable for criminal conduct if that person acted voluntarily and intentionally', but there is also 'a general expectation amongst the community that the law will: (a) protect the community against criminal conduct committed by offenders who have freely chosen to become intoxicated; and (b) penalise self-induced intoxicated persons who commit criminal acts'. 6ile there is a large body of literature on the relationship between alcohol/drug consumption and anti-social behaviour and violence in criminology, public health, alcohol and other drugs (AOD) and allied social science disciplines, 7 little attention has been paid to how Australian criminal law inscribes this relationship.With the exception of the literature on the 'defence' of intoxication (which is only one of the sites where the criminal law engages with AOD use), 8 scholars of criminalisation and criminal responsibility have largely ignored the topic. 9onsequently, while many of the preventive strategies employed outside the criminal justice system (such as liquor license conditions, reduced trading hours, 'designing out' strategies, public transport, education) have been well-informed by the research literature and evidencebased knowledges, criminal law and policing strategies (including new offences, sentencing aggravating factors and coercive police powers) have not.
The sites where Australian criminal law attaches particular significance to the intoxication of an individual have grown significantly in the last two decades, including in relation to the exercise of coercive police powers, admissibility of evidence, the definition of offences and defences, and the determination of sentence.This growth in the visibility and importance of intoxication in the criminal law statute books and the increasing breadth of its significance, however, has not been matched by a growth in definitional clarity.Nor has attention been paid to whether the proliferation of legislative 'sites' has produced internal inconsistencies in the criminal law regarding intoxication's significance, and if so, whether these variations are justified and what unintended consequence they might produce.Further, policy-makers and legislators appear to have been reshaping the criminal law regarding the significance to be attached to intoxication with minimal regard to knowledge from criminology, public health, AOD and allied social science disciplines regarding the effects of intoxication and how states of intoxication can and should be defined.
We are currently undertaking the first comprehensive national catalogue of 'knowledges' and assumptions about the intoxication-violence relationship that are reflected in Australian criminal laws, and court-room knowledge formation regarding the effects of intoxication, and their implications for criminal responsibility. 10We will be comparing these legal knowledges with scientific and social scientific expert knowledge on the relationship between AOD consumption and violent criminal offending. 11By mapping and assessing the multiple ways in which Australian criminal law attaches significance to the attribute of intoxication, and by investigating the effects these approaches may have in practice, we aim to facilitate enhanced clarity, consistency and integrity in laws that attach penal significance to the fact of a person's intoxication, and improve the criminal law's capacity to meet the needs of the community with respect to the attribution of criminal responsibility for alcohol-related anti-social behaviour, harms and risks.
The first stage of our project involves a survey of all criminal law and procedure statutes in Australia that 'turn' on evidence of intoxication -whether to justify the exercise of a police power, as a substantive element of an offence, or as an aggravating factor relevant to an element of an offence or sentencing -and examine how intoxication is defined in each case.There are more than 500 such provisions across Australia, including some 65 in Queensland alone.A significant number of these provisions were added to the relevant changes to a range of statutes.In this article we will use the SNO Act as a vehicle for explaining the organising framework for our larger study, and outlining some of our preliminary findings on the diversity of contexts in which significance is attached to intoxication in Australian criminal law, and on the range of approaches taken to the task of defining 'intoxication'.

II INTOXICATION'S SIGNIFICANCE AND DEFINITION
Historically, 'intoxication' could not be used to excuse/defend offending behaviour -'drunkenness is no defence'. 12Loughnan has traced the historical development of both the patterns of alcohol consumption and the social meanings given to alcohol during the 17 th and 18 th centuries. 13She shows that during this time drunkenness became increasingly visible in public (with distilled spirits becoming cheap and widely available) and alcoholism came to be understood as a social problem.Intoxication came to be regarded as a 'threat' to the social order -which reminds us that contemporary anxieties about 'alcohol-fuelled violence' have a long history.
During the 19 th century, however, the legal rules on intoxication began to be relaxed, with a greater willingness to allow the admission of intoxication evidence as relevant to the proof of elements. 14The context for this development was a shift in the criminal law's approach to the question of criminal responsibility.During the course of the 19 th century, the common law increasingly focused on the mens rea of offences and the accused's subjective culpability -not simply the actus reus.A line of English decisions, culminating in DPP v Majewski 15 began to accept that evidence of intoxication may be relevant to whether the 'accused lacked a guilty mind', but only where 'the offence charged involved a specific intent'. 16Although its status as a discrete category of criminal offence may be dubious, 17 a crime of 'specific intent' is typically explained as one in which the Crown must prove, as an element of the offence, an intention to bring about a specific consequence. 18 O'Connor the High Court (by majority) declined to follow Majewski and ruled that the availability of intoxication evidence to dispute mens rea should not be limited only to crimes of specific intent.Chief Justice Barwick noted that the principles of criminal responsibility which supported this outcome: have been established bearing in mind and not disregarding the need of the society for protection from violent and unsocial behaviour.These principles, on the one hand, provide the society with a protection against violent and unsocial conduct, whilst on the other hand, maintain a just balance between the Crown and the citizen who is charged with having broken the criminal law.That Majewski's Case is a departure from such principles can scarce be gainsaid.It seems to me to be completely inconsistent with the principles of the common law that a man should be conclusively presumed to have an intent which, in fact, he does not have, or to have done an act which, in truth, he did not do. 19owever, legislatures in most Australian common law jurisdictions have subsequently intervened to curtail the defence along the lines of the Majewski approach. 20In Queensland, the 'specific intent' crime limitation had already been adopted.Section 28(3) of the Queensland Criminal Code provides that: When an intention to cause a specific result is an element of an offence, intoxication whether complete or partial, and whether intentional or unintentional, may be regarded for the purpose of ascertaining whether such an intention in fact existed.
As noted earlier, legal scholarship has focused on normative arguments about the intoxication 'defence' and its legislative curtailment. 21With the exception of limited work done on the relevance of intoxication to sentencing,22 the multiple other ways in which the criminal law attaches significance to intoxication have largely been ignored. 23We believe that thorough and critical examination of the ways in which criminalisation24 is being deployed to address violence and other offending attributed to AOD consumption demands a more comprehensive analysis.The larger project of which this article forms a part aims to make a contribution to filling this gap.Two key organising concepts for this study are the purposes for which the criminal law attaches significance to alcohol and other drug effects,25 and the definition of 'intoxication'26 which is employed to this end.

A Purpose
We have developed a working typology that recognises seven different purposes for which Australian criminal law and procedure legislation attaches significance to intoxication (see Figure 1).Application of this typology opens up for analysis the variety of rationales behind criminal laws concerned with intoxication.Depending on the context, the law may be concerned with the welfare of the intoxicated person (eg sobering up centres), the functional impairment of the intoxicated person (eg driving offences), the cognitive and decision-making capacity of the intoxicated person (eg provisions that treat victim intoxication as a vitiating factor in relation to consent in sexual assault matters) or may treat an intoxicated person as more culpable and deserving of greater punishment (eg the offence of assault causing death while intoxicated).27

B Definition
The other variable that is under-appreciated in scholarship and commentary on AOD and criminal law is the question of how 'intoxication' is defined.The word is sometimes used as if its meaning is self-evident, but this is not the case.The Macquarie Dictionary defines the noun 'intoxication' as 'inebriation' or 'drunkenness' or more expansively as 'overpowering action or effect upon the mind'. 28None of these definitions provide much guidance about how much a person must have consumed, or how incapacitated they must be in order that their state qualifies as 'intoxicated'.In many social settings, and in general conversations, such specificity is relatively unimportant, and we have developed a number of colloquialisms to describe varying degrees of intoxication (eg from 'happy' and 'tipsy' to 'smashed', 'legless' and 'paralytic'). 29Such markers of degree are noteworthy for their lack of precision, and for the fact that they are value-laden and their deployment is highly subjective.It follows that they are regarded as inappropriate in the criminal law context, where there is rightly a greater expectation of clarity, certainty and evidence-based assessment.Ironically, when we turn to the cases and statute books with that expectation, it is surprising to find that although colloquialisms may be absent, vagueness and imprecision are not.
We have developed a typology that facilitates the categorisation of Australian criminal law and procedure (including policing) statutes into one of seven statutory approaches to defining intoxication (see Figure 2).We have become accustomed to putatively 'accurate' approaches to defining degrees of intoxication in the context of drink driving offences, such as those under the Transport Operations (Road Use Management) Act 1995 (Qld), where lines are drawn based on prescribed concentration of alcohol (PCA) levels, determined by breath or blood or urine analysis. 30However, in most criminal law contexts, such attempts at specificity are the exception rather than the rule.In only a minority of instances does legislation provide a precise definition based on blood alcohol content (or the presence of illicit drugs) or guidance in the form of explicit criteria for making an observation/behaviour-based assessment of whether a person is intoxicated.
An additional complication arises from the fact that the signifier 'intoxication' is not limited to alcohol.For example, in Queensland, for criminal law and policing purposes, the state of 'intoxication' may arise from the consumption of alcohol or a long list of other proscribed drugs (such as cocaine, heroin, methylamphetamine, and since 2014,31 steroid drugs such as stanozolol).This is so despite the fact that different drugs have different effects -that is, they may be depressants, stimulants or hallucinogens. 32In addition, the effects of the same quantity of a particular drug can vary significantly from person to person.For example, as Perl has noted in relation to alcohol, 'behavioural effects of alcohol are unpredictable and can vary from one person to another and factors such as tolerance to alcohol are known to influence alcohol's effects on behaviour'. 33

Evidence of Intoxication
Basis .As such, the SNO Act provides an excellent vehicle for explaining the organising framework for our larger study, demonstrating the utility of our typologies on purpose and definition and illustrating how they might be deployed to analyse changes in the manner in which the criminal law attaches significance to intoxication.
In the second reading speech on the Safe Night Out Legislation Amendment Bill 2014 (Qld), the then Queensland Attorney-General, Jarrod Bleijie, explained the rationale behind the Government's omnibus response to the problem of alcohol-related violence: The passage of this bill will deliver positive changes for the people of Queensland by reducing alcohol and drug related violence and providing a safer night-life that all Queenslanders can enjoy, because we on this side of the House know that a great night out is a safe night out.It is a comprehensive and holistic approach aimed at delivering long-term changes to the culture that leads to antisocial and violent behaviour.It also reflects the clear community sentiment that this culture and the violence associated with it is not welcome in Queensland and must stop now. 34ether the changes made by the SNO Act are capable of delivering the promised results, remains to be seen, and should be the subject of ongoing research and analysis.Our examination in the remainder of this article has a more specific purpose.We aim to highlight: i) the diversity of criminal law and procedure sites and multiple purposes for which significance is now attached to intoxication; ii) the range of assumptions about the AOD/violence/safety relationship that are now embedded in Queensland legislation and the combination of punitive and harm minimisation measures employed to address the problem; iii) the emphasis on alcohol-related violence that occurs in public; and iv) the approaches that have been taken to the difficult task of defining 'intoxication'.

Diversity of Ways the SNO Act Attaches Significance to Intoxication
Of the 65 criminal law and procedure statutory provisions in Queensland that attach significance to intoxication, 21 were introduced by the SNO Act. 35More relevant than volume, for present purposes, is the fact of diversity: the part played by evidence of intoxication in the 34  multiple amendments made by the Act (see Table 1) are not constant (nor, as we will discuss below, are approaches to definition uniform).The SNO Act demonstrates instances of six of the seven different purposes in our typology of criminal law provisions that attach significance to intoxication (see Figure 1 above).
The first, and by far the largest, category (15 of 21), includes provisions which empower an officer of the state to exercise a coercive power.For example, under the Police Powers and Responsibilities Act 2002 (Qld), a police officer:  may detain and transport a person to a sober safe centre where the officer 'reasonably suspects a person is intoxicated' (s 390E);  is authorised to undertake breath, saliva, blood or urine testing of persons suspected of committing particular assault offences where the officer 'reasonably suspects …the person is intoxicated' (s 548C(1)(b)) or where a person is arrested for committing a relevant assault offence and the officer 'reasonably suspects … the person is intoxicated' (s 548D(1)(b)).
In another context, the power is of a different nature and is exercisable by a court or police officer making a bail decision.Section 11AB of the Bail Act 1980 (Qld) (since amended) required the imposition of a condition that an accused person must complete a Drug and Alcohol Assessment and Referral ('DAAR') course if s/he was charged with a prescribed offence, committed in public, while the person was 'adversely affected by an intoxicating substance'. 36e second category is where the 'fact' of a person's intoxication is a core element of a criminal offence.The SNO Act did not create any new instances of this category under Queensland law, but did amend s 10 of the Summary Offences Act 2005 (Qld) from it being an offence to be 'drunk in a public place', to it being an offence for a person to be 'intoxicated in a public place'.The significance of this terminology, and the absence of any attempt to define 'intoxicated' for this purpose, will be considered below.
The third category is where it is the intoxication of a person other than the accused that is an element of an offence.The SNO Act added to the Wine Industry Act 1994 (Qld) a responsibleservice-of-alcohol style offence of a type that is a standard inclusion in liquor licensing regimes.Under s 36(1) of the Wine Industry Act 1994 (Qld) it is an offence to supply wine to a person who is 'unduly intoxicated'.The rationale for criminalisation, of course, is the culpability of the supplier in providing alcohol to a person where this is considered unacceptable from a risk management and harm minimisation point of view.The meaning, significance and clarity of the adverb 'unduly' are considered further below.
The fourth, and perhaps most controversial, category is where a person's intoxication is treated as an aggravating element of an offence.The SNO Act added a new Chapter 35A to the Criminal Code (Qld).Under Chapter 35A, for a number of offences, including grievous bodily harm (s 320), wounding (s 323) and assaulting police (s 340), it is a circumstance of aggravation that the offence was committed 'in a public place while the person was adversely affected by an intoxicating substance' (s 365A(2)). 37he Definition and Significance of 'Intoxication' in Australian Criminal Law: A Case Study of Queensland's 'Safe Night Out' Legislation  51   The fifth way in which significance is attached to intoxication by the SNO Act is that the ability of an accused person to raise evidence of their intoxication as part of their defence has been curtailed (in addition to the limitations which already existed under s 28(3) of the Criminal Code (Qld)).Specifically, the mistake of fact defence in s 24 of the Criminal Code (Qld) cannot now be raised if the 'mistake' which the accused seeks to raise is a belief s/he was 'not adversely affected by an intoxicating substance' (s 365B(1)).An error of this sort (even if honest) no longer qualifies as a potentially exculpatory mistake of fact.
The sixth and final way in which the SNO Act changes Queensland criminal law when it comes to intoxication occurs in the sentencing context.Section 9(9A) of the Penalties and Sentences Act 1992 (Qld) now contains an express statement that voluntary intoxication cannot be used as a mitigating factor.The move could be regarded as largely symbolic, given that, at least formally, the courts, including the Queensland Court of Appeal, have for some time taken the position that intoxication is not a mitigating factor. 38However, s 9(9A) would appear to foreclose even indirect reliance on intoxication via a plea in mitigation that the offender's violent behaviour was 'out of character'. 39aditionally, both legal scholarship and popular/media discourse on the relationship between criminal law and intoxication has tended to focus on the merits of the 'defence' of intoxication -that is, where an accused contests the Crown's ability to prove that s/he had the requisite fault element for an offence.In this discussion we have attempted to draw attention to the fact that the question of how and why AOD consumption is relevant to policing and the administration of criminal justice is actually more complex and multi-faceted than that.We have highlighted the multiple and different ways in which the SNO Act effected legislative amendments that attach significance to evidence of intoxication.

B Assumptions Made About the Alcohol/Violence/Risk Relationship
The SNO Act is illustrative not only of the variety of purposes for which significance is attached to intoxication in the criminal law and policing context, but also the different assumed or attributed effects of AOD and value judgements regarding intoxication that are embedded in legislation.The majority of provisions introduced by the SNO Act associate intoxication with risk and danger and/or additional blameworthiness.Relatedly, there is a manifest commitment to minimising the opportunity, for a person who has 'chosen' to become intoxicated, 40  mitigating factor in the sentencing exercise. 41The judgement that is implicit in these arrangements is that alcohol is causally implicated in violence and people who allow themselves to become intoxicated can rightly be condemned (and punished more severely) for taking a known risk.References to 'alcohol fuelled violence' were made frequently, by both Government and Opposition Members of Parliament, during debate on the Safe Night Out Legislation Amendment Bill 2014. 42When the Bill was first introduced in June 2014, the then Premier Campbell Newman said, 'Fresh measures are called for to counter the dangerous trend of innocent people falling victim to senseless violence at the hands of people who are drunk or high on illicit drugs'. 43gative judgement, or condemnation, however, is not universal across all provisions introduced by the SNO Act.There is also recognition that a person under the influence of AOD may be in need of medical-welfare assistance.Such concerns underpin expanded police powers under the Police Powers and Responsibilities Act 2000 (Qld) to provide an additional basis for discontinuing the arrest of an intoxicated person in a public place, where the officer is satisfied 'it is more appropriate for the person to be detained and transported to a sober safe centre' (s 378A).Police officers also have new powers to detain and transport an intoxicated person to a sober safe centre (s 390E) where the officer 'reasonably suspects' the person is behaving in a way that 'poses a risk of physical harm to the person, or another person' (s 390E(1)(b)(ii)).
Furthermore, once such a person is admitted to a sober safe centre, this triggers further provisions requiring assessment by a health care professional (s 390G) and ongoing assessment after four hours by a health care professional and the making of recommendations regarding release of the person independently or into the 'care of a responsible person' to take the person to a 'place of safety' (s 390I).
Another example of a partly medical-welfare paradigm is found in provisions added to the Bail Act 1980 (Qld).These create a new mandatory bail condition (s 11AB) for intoxicated offenders to complete a Drug and Alcohol Assessment and Referral (DAAR) course where 'the person's drug or alcohol use is assessed' (s 11AB(4)(a)) and 'the person is given information about appropriate options for treatment and may be offered counselling or education' (s 11AB(4)(b)). 44

C Competing Paradigm? Risk Management/Harm Minimisation
While many of the methods by which the SNO Act attaches significance to intoxication reflect a commitment to punitive 'law and order' solutions, 45 others are more accurately understood as applying risk management and harm minimisation approaches.Most notably, in the licensing context, the SNO Act made several amendments to the Liquor Act 1992 to introduce such strategies, including:  powers for the Commissioner for Liquor and Gaming to direct a licensee to change the licensee's approved risk-assessed management plan for a premises (s 52A);  ensuring that variations of licences (either by application of the licensee or on the Commissioner's own initiative) consider the purpose of 'minimising alcohol-related disturbances, or public disorder, in a locality' (s 111(2)(g)(ii));  when the Commissioner makes a decision under the Act in relation to a relevant premises, the Commissioner may consider the impact on, among other things, violence, nuisance, drunkenness, public urination, indecent or offensive behaviour, noisiness (s 128B(2));  obligations on licensees regarding responsible service of alcohol (Pt 6, Div 1AA);  use of ID scanning for certain licensed premises (Pt 7, Div 2); and  establishment of safe night precincts (Pt 6AB) with the stated purposes of: '(a) minimis[ing] harm, and the potential for harm, from the abuse and misuse of alcohol and drugs, and associated violence; and (b) minimis[ing] alcohol and drug-related disturbances, or public disorder' (s 173NA).
Overall, what should be made of the different approaches to AOD consumption and intoxication contained in the SNO Act?On the one hand, it is admirable that the Parliament has attempted to come to terms with the complexity of AOD consumption's relationship to vulnerability, risk, harm, and safety.To the extent that the welfare-medical and harm minimisation approaches described here manifest a recognition that coercive and punitive policing and criminal law responses cannot 'solve' the problems that can be associated with AOD consumption, they are positive and welcome.On the other hand, there is no doubt that several of the legislative changes effected by the SNO Act intensify an asserted nexus between intoxication and adverse moral judgement -a view which, at least in relation to alcohol intoxication, sits uncomfortably with the status of drinking as 'a legally and socially sanctioned activity'. 46

Focus on Public Intoxicated Behaviour
The heavy focus of recent public, media and political outcry concerning alcohol-related violence has been on male-to-male violence that occurs in public or in/around licensed premises.47Domestic violence that occurs in private settings has not featured prominently in the recent policy debates on, and criminal law reforms addressing alcohol-related violence, despite the evidence that domestic violence is also often associated with intoxication. 48The SNO Act continues this trend: it is only intoxication-related violence and disorder that occurs in public that is the subject of the multiple additional ways in which significance is attached to intoxication.
For example, the mandatory aggravation provisions added to Chapter 35A of the Criminal Code (Qld) in relation to serious assaults are only triggered where 'the offence was committed in a public place while the person was adversely affected by an intoxicating substance' (s 365A(2); emphasis added). 49Additional powers under the Police Powers and Responsibilities Act 2000 (Qld) regarding sober safe centres are triggered only where a person is intoxicated in a public place (ss 378A, 390E), as are the provisions relating to breath, saliva, blood and urine testing (ss 548C(1)(b)(ii), 548D(1)(b)(ii)).Perhaps most surprisingly, as originally enacted, 50 the bail condition that a person must undertake a DAAR course (Bail Act 1980 (Qld), s 11AB) only arose in relation to prescribed offences committed in a public place while intoxicated, not in relation to the same offences committed in a private location.While the various definitions of 'public place' in the amended Acts are broad and include, for instance, places where an occupier allows members of the public to enter either for payment or not, such as a licensed premises, 51 they clearly do not cover domestic settings where a large proportion of violence occurs. 52Such a demarcation between the gravity of alcohol-related violence that occurs in public, and that which occurs in private, appeared somewhat at odds with recent efforts to improve social policy and criminal law responses to domestic violence. 53 be clear, we are not recommending that the more punitive approaches introduced by the SNO Act for public violence should simply have been extended to violence that occurs in private (domestic) settings.Rather, we are drawing attention to an inconsistency (and a potential 'blind spot') in responses to violence and in the characterisation of problematic AOD consumption, including the relevance of 'setting'.New policy approaches to AOD use and violence should challenge rather than perpetuate gendered assumptions. 54

Definitions of Intoxication
Earlier in this article we noted that Australian legislation governing criminal law and police powers is characterised by a diverse range of approaches to defining 'intoxication' and is regularly imprecise.These features are evident in the changes to Queensland legislation effected by the SNO Act.In our analysis of these changes we have identified three noteworthy features.First, generally (though not universally) the terms 'drunk' or 'drunken' have been replaced with 'intoxicated'. 55At first glance this would appear to be simply a case of modernising language and of no particular consequence.However, on closer inspection, it becomes apparent that the change is not 'neutral', specifically because the term 'intoxicated' is generally regarded as referring to the influence or effects of a variety of drugs, including not only alcohol, but other drugs as well.
Secondly, the SNO Act adopts a variety of approaches to the definition of intoxication, including five of the six definitional categories identified above (see Figure 2 Despite its use across a number of statutes, the phrase 'adversely affected by an intoxicating substance' is only further defined in the Criminal Code (Qld), s 365C of which states: Proof of being adversely affected by an intoxicating substance (1) A person is taken to be adversely affected by an intoxicating substance if-(a) the concentration of alcohol in the person's blood is at least 150mg of alcohol in 100mL of blood; or (b) the concentration of alcohol in the person's breath is at least 0.150g of alcohol in 210L of breath; or (c) any amount of a drug prescribed by regulation is present in the person's saliva; or (d) the person fails to provide a specimen as required under the Transport Operations (Road Use Management) Act 1995, section 80 as applied under the Police Powers and Responsibilities Act 2000, chapter 18A.
Note that in the case of drugs other than alcohol, it is the presence of any amount of the drug which is regarded as satisfying the definition of intoxicated.This means that a person will be considered to be legally intoxicated even where there is no reason to believe that the nature and quantity of the illicit drug in their system was implicated in their alleged criminal offendingfor example, MDMA (ecstasy) consumed up to 24 hours previously.Although the Police Powers and Responsibilities Act 2000 (Qld) also uses the phrase 'adversely affected by an intoxicating substance', 57 it does not pick up or cross-reference the definition contained in s 365C of the Criminal Code (Qld).The same is true of the Bail Act 1980 (Qld).It may be that the different approaches to definition reflect different legislative objectives in response to the specificities of context.Nonetheless, it is noteworthy that the Parliament has decided to use the same language ('adversely affected by an intoxicating substance') in different statutes, but define it in only one (the Criminal Code (Qld)).
The phrase 'unduly intoxicated' is defined, for the purpose of the new provisions added to the Liquor Act 1992 (Qld) and the Wine Industry Act 1994 (Qld), based on observed behaviour criteria.Section 9A of the Liquor Act 1992 (Qld) is illustrative: 9A When a person may be taken to be unduly intoxicated For this Act, a person may be taken to be unduly intoxicated if-(a) the person's speech, balance, coordination or behaviour is noticeably affected; and (b) there are reasonable grounds for believing the affected speech, balance, coordination or behaviour is the result of the consumption of liquor, drugs or another intoxicating substance. 58 note that these attempts to provide legislative guidance still leave decision-makers (eg police officers and others) with considerable latitude when determining where the line should be drawn between, on the one hand, a person who is 'adversely affected' (eg under the Police Powers and Responsibilities Act 2000 (Qld)) or 'unduly intoxicated' (eg under the Liquor Act 1992 (Qld)), and, on the other, a person who is not.As McNamara and Quilter have observed in the context of a comparable definition in New South Wales, considerable risks are associated with 'a loosely drawn behaviour-based "test" of whether a person is "intoxicated" that requires a police officer to exercise judgement, based on observation alone, as to whether there is a relationship between the observed behaviour and the consumption of alcohol or other drugs'. 59ndividuals who are already exposed to high levels of policing and surveillance, and in relation to whom there is a long history of alcohol-related stereotypes -including Indigenous persons and homeless persons -may be especially vulnerable to adverse characterisations of behaviour.
Thirdly, variations in the degree of definitional specificity across the range of provisions introduced by the SNO Act is not random (see Table 1).There is a greater degree of precision in relation to the most serious consequences for an allegedly intoxicated person -such as where it is asserted as a circumstance of aggravation under Chapter 35A of the Criminal Code.There is a lesser degree of precision -and more scope for discretion (and error) -in the adjudication of intoxication where the state of being intoxicated triggers a police power (eg detention in a safe sober centre under s 390E of the Police Powers and Responsibilities Act 2002 (Qld)) or provides the basis for a minor public order offence (eg being intoxicated in public under s 10 of the Summary Offences Act 2005 (Qld)).It might be suggested that an appropriate balance has thus been struck.However, we should be wary about concluding that vagueness and ambiguity are less objectionable at the 'lesser' end of the spectrum of criminal law enforcement, given the frequency with which coercive police powers are employed and public order offences enforced, 60 and the strong evidence of disproportionate impact on already 57

IV CONCLUSION
Our research on the relevance of 'intoxication' to criminal law and policing powers is ongoing, and so we have made no attempt here to reach firm conclusions or offer specific reform recommendations.Rather, we have used the Safe Night Out Legislation Amendment Act 2014 (Qld) to introduce the conceptual tools and typologies -highlighting the relationship between purpose and definition -that we believe are well-adapted to the task of undertaking a comprehensive national assessment, and to illustrate some of the distinctive features of contemporary legislative arrangements in Australia.In closing, we add the following observations to those already made in the body of this article.
First, it is noteworthy that a number of the measures adopted by the Queensland Parliament were modelled on similar changes introduced in NSW in the preceding 12-18 months. 62There is nothing inherently wrong with this sort of cross-jurisdictional 'borrowing' -indeed, it might be said to be one of the strengths of Australia's federal system -but there is a danger that proposals for radical change can sometimes receive less scrutiny than is warranted if they are portrayed or regarded as relatively unremarkable because another State has recently taken similar steps. 63condly, the SNO Act powerfully illustrates the fact that Australian law-makers are continuing to blur the line between what they perceive to be a growing societal expectation that 'dangerous' intoxication be morally condemned and discouraged and the legitimacy of treating intoxication as a trigger for liberty deprivation or a justification for penalty enhancement.More attention needs to be paid to explaining the normative merits, fairness and efficacy of such approaches, including in light of the evidence that the threat of higher penalties rarely produces the general deterrence effects promised, and given that the cognition-impairing effects of AOD are such that, in the 'moment', the potential for specific deterrence is also likely to be compromised. 64In addition, we suggest that the operation of these provisions should be the subject of ongoing scrutiny for the purpose of identifying possible unintended and/or problematic consequences, including outcomes that are not sensitive to the available evidence on the effects of different drugs, and which produce context-to-context inconsistencies.
Finally and relatedly, there is an unresolved paradox at the heart of Australian criminal law and procedure in relation to intoxication -a paradox that is highlighted by the SNO Act.The paradox can be represented as two narratives.According to the first, 'booze' (and other drugs) are to blame -an approach which conceives of AOD use as a shared societal problem which requires collective solutions, including attitudinal changes and changes to cultural practices

Figure 1 :Figure 2 :
Figure 1: The Multiple Purposes of Evidence of Intoxication in Criminal Law Queensland statute books by the SNO Act, which was passed by the Parliament of Queensland on 26 August 2014, and which made 10 Julia Quilter, Kate Seear, Luke McNamara and Robin Room, 'New National Study Examines Intoxication in Criminal Law' (2015) 15 LSJ: Law Society of NSW Journal 76. 11 Kate Seear, Julia Quilter, Luke McNamara and Robin Room, 'Quick Fixes Aren't the Answer, Alcohol and Violence have a Complex Relationship', The Conversation, 18 August 2015, <https://theconversation.com/quickfixes-arent-the-answer-alcohol-and-violence-have-a-complex-relationship-42908>.The Definition and Significance of 'Intoxication' in Australian Criminal Law: A Case Study of Queensland's 'Safe Night Out' Legislation 45 The SNO Act made multiple changes to Queensland's criminal law and policing statute books on the significance of a person's intoxication.Whereas equivalent changes have happened incrementally over time in most jurisdictions, the changes that took place in Queensland with the passage of one 'single theme' (ie centred on alcohol-related violence and disorder) Omnibus bill in 2014 reflected the Government's decision to undertake a wide-ranging overhaul of the State's statute books.The statutes relevantly amended were the: Bail Act 1980 Biological detection (eg concentration or presence)Assessment by health professional Observation/behaviour -criteria Observation/behaviour -no criteria Vague definition/degree of impairment No definition The Definition and Significance of 'Intoxication' in Australian Criminal Law: A Case Study of Queensland's 'Safe Night Out' Legislation 49 III CASE STUDY: THE SAFE NIGHT OUT LEGISLATION AMENDMENT ACT 2014 (QLD) (Qld); Criminal Code (Qld); Liquor Act 1992 (Qld); Penalties and Sentences Act 1992 (Qld); Police Powers and Responsibilities Act 2000 (Qld); Summary Offences Act 2005 (Qld); and Wine Industry Act 1994 (Qld) Queensland, Hansard, Queensland Legislative Assembly, 26 August 2014, 2655 (Bleijie).
are also relevant new provisions added by the SNO Act, but they are definitional rather than operative provisions.Their significance is discussed below in Part III, Section E of this article.Note also that in addition to the large number of new provisions relating specifically to 'intoxication', the Act also introduced a variety of other measures (particularly in the liquor licensing context) that were designed to tackle 'alcohol-related' violence, amenity, and safety issues: see Part III, Section C.
to avoid or reduce criminal responsibility for behaviour in which s/he has engaged.For example, the effect of the new Chapter 35A of the Criminal Code (Qld) and s 108B of the Penalties and Sentences Act 1992 (Qld) is that intoxication makes an offender more culpable, and mandatorily aggravates the offence.Similarly the new s 9(9A) in the Penalties and Sentences Act 1992 (Qld) ensures that 'voluntary intoxication' cannot be a Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW). 40This article focuses on the criminal law's treatment of voluntary intoxication, though we recognise that involuntary (or 'unintentional') intoxication is treated differently: see, eg Criminal Code (Qld) s 28; Penalties and Sentences Act 1992 (Qld) s 9(9A); Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (Thomson Reuters, 3rd ed, 2010) 287.
): no definition; vague definition/degree of impairment (eg 'unduly intoxicated'); observed behaviour -with explicit criteria; assessment by a health professional; and biological detection of either an illicit drug or PCA (breath, saliva, blood or urine test).The most commonly used expression to describe a requisite degree of intoxication is 'adversely affected by an intoxicating substance' (added to the Criminal Code, parts of the Police Powers & Responsibilities Act 2000 (Qld) and Bail Act 1980 (Qld)).The other commonly used phrase is 'unduly intoxicated', used in the Liquor Act 1992 (Qld) and Wine Industry Act 1994 (Qld).Other expressions are 'voluntary intoxication of an offender by alcohol or drugs' (Penalties and Sentences Act 1992 (Qld)) or simply 'intoxicated' (Summary Offences Act 2005 (Qld) and parts of the Police Powers & Responsibilities Act 2000 (Qld)).
/www.druginfo.adf.org.au/attachments/article/394/FS_Ecstasy_Mar2015.pdf>.Importantly, a growing body of literature from the social sciences questions claims about the nature of claimed drug effects, including suggestions that effects are predictable and stable: see, eg, Suzanne Fraser and David Moore (eds), The Drug Effect: Health, Crime and Society (Cambridge University Press, 2011).
61e Definition and Significance of 'Intoxication' in Australian Criminal Law: A Case Study of Queensland's 'Safe Night Out' Legislation 57 marginalised individuals and communities, including the homeless, and Aboriginal and Torres Strait Islander persons.61 See Police Powers and Responsibilities Act 2000 (Qld) s 3 and Sch 6 (Dictionary).58SeealsoWineIndustryAct1994 (Qld) s 36(2).59McNamaraandQuilter,above n 23, 26.60Approximately 40 000 public order charges are finalised in Australian courts every year, and, in addition a large (but unknown) number of public order 'crimes' are enforced by 'on-the-spot' fines: McNamara, above n 24, 36.