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Aboriginal and Torres Strait Islander viewers are advised that this website contains the names and images of people who have passed
This is a RCIADIC recommendation
79
Legislate to abolish the offence of public drunkenness
That, in jurisdictions where drunkenness has not been decriminalised, governments should legislate to abolish the offence of public drunkenness.
Our mother would still be here today if the Government repealed the laws criminalising public drunkenness as first recommended over 30 years ago in the Royal Commission into Aboriginal Deaths in Custody. We are glad the government is finally listening and is implementing these changes.
Aboriginal Justice Caucus Assessment
The intent of Recommendation 79 was to remove ‘public drunkenness’ offences from legislation.
In 2019 on the eve of the inquest into the death of Yorta Yorta woman Tanya Day, the Victorian Government announced that it would decriminalise public drunkenness and replace it with a health-based response. This announcement followed tireless advocacy by Tanya Day’s family for this recommendation to be implemented:
Our mother would still be here today if the Government repealed the laws criminalising public drunkenness as first recommended over 30 years ago in the Royal Commission into Aboriginal Deaths in Custody.
- Day Family
The Summary Offences Amendment Bill 2020 (Decriminalisation of Public Drunkenness) was passed by the Victorian parliament in February 2021. This Bill repealed existing offences under the Summary Offences Act 1966 (Vic) and made amendments to the Liquor Control Reform Act 1998 (Vic) and the Bail Act 1977 (Vic) to remove references to public drunkenness offences. Originally, the legislative changes were to take effect in November 2022 after a 24-month implementation period, during which time the public health model could be trialled in key locations and then established across the state. Ultimately, a twelve-month extension was required with public drunkenness decriminalised from 7 November 2023.
The Aboriginal Justice Caucus (AJC) determined that the actions taken closely aligned with the intent of the recommendation and were directly linked to the removal of the relevant offences from legislation. As one of a chorus of Aboriginal voices, the AJC lamented three-decades of inaction between when this recommendation was made and when public drunkenness offences were abolished in Victoria, noting that several people had died in custody as a result.
The foresight of Aboriginal people 30 odd years ago when these initial recommendations were put in place needs to be acknowledged. They should have been listened to and lives would have been saved. (Marion Hansen)
Public drunkenness laws have contributed to far too many deaths in custody. These changes have been worked towards and fought for by the Aboriginal community over decades and are well overdue. (Crystal McKinnon)
Provided these legislative changes remain in place in Victoria, the AJC considered Recommendation 79 to be no longer relevant. However, if the legislation were to be repealed or other similar offences created this recommendation would become ‘absolutely relevant’ once more.
It will be absolutely relevant if the government change their mind at the drop of a hat and stop funding the public intoxication reform projects that have been put in place. (Marion Hansen, Chairperson, AJC)
As the Victorian legislation was changed as intended Recommendation 79 was considered fully implemented. In terms of the potential benefits of further implementation, the AJC emphasised the need for further work to implement RCIADIC recommendations related to the public health response rather than this one.
Priority for Further Work:
Low
Relevance and potential impact | |||||
|---|---|---|---|---|---|
Low (0-2) | Moderate (3-4) | High (5-6) | |||
Extent of action taken and evidence of outcomes | High (5-6) | ||||
Moderate (3-4) | |||||
Low (0-2) | |||||
Potential Actions for Further Work
Aboriginal access to the public health response
In the wake of the decriminalisation of public drunkenness, ensure that Aboriginal people across Victoria have access to the alternative health-based responses, particularly those delivered by ACCOs.
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) identified that many cases where Aboriginal people died in custody occurred after they had been arrested for being intoxicated in public. The Commission noted that arrests for public drunkenness were often used for social control rather than in response to criminal behaviour. The RCIADIC advocated for public drunkenness to be addressed outside of the criminal justice system and treated as a health and safety issue where intoxicated persons are returned home, hospitalised or safely escorted to a sobering up facility. At the time of the RCIADIC, several jurisdictions had abolished the offence but gave police powers of ‘protective custody’ which effectively permitted arrest for public drunkenness.
Actions Taken Since Last Review
Victorian Government
On 22 August 2019 the Victorian Government announced it would ‘decriminalise public drunkenness and replace it with a health-based response, in order to provide vulnerable Victorians with appropriate help and support’.
DJCS and the Department of Health and Human Services (DHHS) supported an Expert Reference Group (ERG) to provide advice to government about development of a public health-based response. The ERG undertook broad consultation in late 2019 and early 2020 with a range of stakeholders which included Aboriginal organisations, first responders, health professionals as well as community and legal peak bodies. The ERG delivered its report, ‘Seeing the Clear Light of Day’, which included 86 recommendations, to government in August 2020. (The ERG’s report and the Victorian Government’s response is available at www.justice.vic.gov.au/public-drunkenness.)
The government introduced the Summary Offences Amendment (Decriminalisation of Public Drunkenness) Bill 2020 to Parliament on 8 December 2020. The legislation was passed on 19 February 2021 and repealed existing offences under the Summary Offences Act 1966 (Vic) and made consequential amendments to the Liquor Control Reform Act 1998 (Vic) and the Bail Act 1977 (Vic) to remove references to public drunkenness offences. The Bill was to take effect in November 2022 to allow time to develop, trial and implement a public health response to support people who are intoxicated in public and protect community safety.
Consistent with the ERG’s recommendation, the repeal was to come into effect after a 24-month implementation period, during which time the public health model could be trialled in key locations and then established across the state. Trial site locations were considered in line with ERG advice.
While the government acknowledged that these reforms were long overdue in Victoria, the implementation period was considered critical to creating a well-designed, collaborative and culturally safe system consistent with the ERG’s vision. The Government provided $16 million in the 2020-21 Budget to start work to implement these reforms.
Victoria Police Response
When asked about this recommendation in 2023, Victoria Police noted:
The Summary Offences Amendment (Decriminalisation of Public Drunkenness) Act 2021 repeals the public drunkenness offences in the Summary Offences Act 1966, together with associated arrest and infringement provisions. Public drunkenness will no longer be an offence from 7 November 2023.
The Department of Health’s (DH) framework towards public intoxication reform was approved by Cabinet in December 2022. DH also developed a draft Public Intoxication Service Framework to support the tender process for outreach service providers. Four trial sites (City of Greater Dandenong, City of Yarra, City of Greater Shepparton and Shire of Mt Alexander) remain in operation to test the health-led response to public drunkenness. Victoria Police members in the trial sites are operating under a Chief Commissioner’s Instruction that supports discretionary decision-making to divert people found to be drunk in public into the safe care of an appropriate person, or if appropriate, arrange transportation for that person to a place of safety.
Victoria Police is in the process of operationalising the policing response to these reforms. The response will include training for police, data gathering and accountability mechanisms. The response will also include processes for referral of persons drunk in public to outreach and other services, and revised policies, including a Chief Commissioner’s Instruction, to support police decision-making and accountability.
Impact
Output
Victorian Government
- Support for the Expert Reference Group (ERG) to provide advice to government about development of a public health-based response.
- Response to the ERG’s report, ‘Seeing the Clear Light of Day’, which included 86 recommendations to government.
- Introduction of the Summary Offences Amendment (Decriminalisation of Public Drunkenness) Bill 2020 to Parliament on 8 December 2020.
- $16 million allocated in the 2020-21 State Budget to begin implementation of public intoxication reforms across four trial sites.
Outcomes
Seeing the Clear Light of Day: Expert Reference Group on Decriminalising Public Drunkenness
The Seeing the Clear Light of Day Report (2020) demonstrated that Aboriginal people were significantly overrepresented amongst those charged with breaching public drunkenness laws. The report stated that ‘whilst they make up 0.8 percent of the Victorian population, overall 6.5 percent of all public drunkenness offences were recorded against Aboriginal and/or Torres Strait Islander people.’ In addition, it was noted that the Victorian Government’s decision to abolish the offence of public drunkenness was made on the evening before the coronial inquest into the death of Tanya Day. Tanya Day was removed by police from a train and taken into custody for being intoxicated in public. She sustained a serious head injury after falling in a police cell and died 17 days later, on 22 December 2017.
Victorian Government
The Summary Offences Amendment (Decriminalisation of Public Drunkenness) Bill 2020 was passed on 19 February 2021 and repealed existing offences under the Summary Offences Act 1966 (Vic) and made consequential amendments to the Liquor Control Reform Act 1998 (Vic) and the Bail Act 1977 (Vic) to remove references to public drunkenness offences.
In June 2022, legislation was introduced to enable formal deferral of the decriminalisation of public drunkenness to November 2023.
Victorian Aboriginal Legal Service
The Victorian Aboriginal Legal Service (VALS) published a statement on the decriminalisation on public intoxication implemented on 7 November 2023. VALS highlighted that it was an ‘historic and long overdue reform’ and that Victoria was ‘finally treating it as the public health issue, as it has always been.’
Community Views
Marion Hansen
Our mother would still be here today if the Government repealed the laws criminalising public drunkenness as first recommended over 30 years ago in the Royal Commission into Aboriginal Deaths in Custody. We are glad the government is finally listening and is implementing these changes.
Chris Harrison
Steering Committee member at the Dhadjowa Foundation
Public drunkenness laws have contributed to far too many deaths in custody. These changes have been worked towards and fought for by the Aboriginal community over decades and are well overdue.